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Riverkeeper v. United States Army Corps of Engineers

United States District Court, S.D. Georgia, Savannah Division

December 10, 2018

ALTAMAHA RIVERKEEPER and ONE HUNDRED MILES, Plaintiffs,
v.
THE UNITED STATES ARMY CORPS OF ENGINEERS; Lieutenant General TODD T. SEMONITE, in His Official Capacity as Commanding General of the U.S. Army Corps of Engineers; Colonel DANIEL HIBNER, in His Official Capacity as District Commander of the Savannah District; TUNIS MCELWAIN, in His Official Capacity as Chief of the Regulatory Branch of the U.S. Army Corps of Engineers, Defendants.

          ORDER

          J. Randal Hall, Judge

         Before the Court is Plaintiffs Altamaha Riverkeeper and One Hundred Miles' (collectively, "Plaintiffs") motion for a preliminary injunction. (Doc. 5.) In September of 2018, the Army Corps of Engineers ("Corps") issued a combined environmental assessment and finding of no significant impact (Doc. 5-11) and granted Sea Island Acquisition, LLC[1] a permit (Doc. 5-1) . On October 31, 2018, Plaintiffs concurrently filed a complaint for declaratory judgment (Doc. 1) and the current motion for a preliminary injunction (Doc. 5). On November 19, 2018, Defendants filed a response. (Doc. 13.) The following day, Plaintiffs filed a motion asking the Court to expedite consideration of its motion for preliminary injunction (Doc. 15) and a reply to Defendants' response (Doc. 17). On November 21, 2018, Sea Island Acquisition filed a motion for a hearing to explain the harm it would suffer if the injunction were granted. (Doc. 19.) On November 30, 2018, Plaintiffs filed an amended motion for a temporary restraining order or preliminary injunction (Doc. 21) that did not offer any new arguments but supplied the Court with an updated photograph of the ongoing construction. Finally, on December 3, 2018, Defendants filed a response in opposition to Plaintiffs' amended motion. (Doc. 22.)

         As a preliminary matter, the Court GRANTS Plaintiffs' motion to expedite consideration (Doc. 15), DENIES Sea Island Acquisition's request for a hearing (Doc. 19), and DENIES AS MOOT Plaintiffs' amended motion (Doc. 21) because Plaintiffs ask for no new relief.[2] The Court now undertakes a decision on Plaintiffs' motion for a preliminary injunction (Doc. 5).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Sea Island Acquisition, LLC ("Sea Island Acquisition"), a private resort and real estate development company, desires to build a new development (the "Development") on Sea Island. To "stabilize the eroding beach" in front of the Development, Sea Island Acquisition sought permission to construct a T-head groin[3]("Proposed Groin") immediately south of the Development. (See Dec. 18, 2015 Public Notice, Doc. 13-3, at 1.) The Proposed Groin is south of two existing groins - one referred to as the "Southern Groin" and the other as the "Northern Groin" (collectively, "Existing Groins"). The application also sought authorization to construct dunes and renourish the beach between the Existing Groins and Proposed Groin.[4]

         On December 18, 2015, the Corps published notice of the Project. (Id.) Following the initial notice and comment period, two major hurricanes, Matthew and Irma, caused substantial damage to Sea Island. The storms severely eroded the beach face and many of the frontal dunes on the Spit.[5] (Southern Environmental Law Center ("SELC") May 23, 2018 Letter, Doc. 5-7, at 4; SELC Feb. 28, 2017 Letter, Doc. 5-8, at 21-22.) In light of these impacts, on March 6, 2018, Sea Island Acquisition submitted an addendum to its 2015 permit application seeking authorization to dredge between 1, 315, 000 and 2, 500, 000 cubic yards of sand from an offshore source and to renourish approximately 17, 000 linear feet of beach on Sea Island. (See Mar. 20, 2018 Public Notice, Doc. 13-4, at 1-2, 16.) These changes increased the length of the Project from 1, 200 linear feet to approximately 17, 000 linear feet, increased the proposed sand volume from 120, 000 cubic yards to up to 2, 500, 000 cubic yards, proposed retrieving sand from the ocean instead of an onshore source, and proposed the use of hydraulic cutterhead dredges. (Permit SAS-2015-00742, Doc. 5-1, at 1; compare Dec. 18, 2015 Public Notice, Doc. 13-3, at 1-2, with Mar. 20, 2018 Public Notice, at 1-2.) Because the proposed changes were substantial, the Corps issued a new public notice, and Sea Island Acquisition submitted a supplementary biological assessment. (Mar. 20, 2018 Public Notice.)

         After reviewing the comments, the Corps, on September 12, 2018, issued a permit authorizing Sea Island Acquisition to (1) construct the Proposed Groin on the Spit, (2) dredge between 1, 315, 000 to 2, 500, 000 cubic yards of sand from an offshore source, and (3) renourish more than 17, 000 linear feet of beach on Sea Island. (Permit SAS-2015-00742.) Concurrently, the Corps issued an environmental assessment ("EA") with a finding of no significant impact PFONSI"). (Memo, for Rec. ("MFR"), [6] Doc. 5-11.)

         II. STANDARD OF REVIEW

         A district court has discretion over whether to grant or deny a preliminary injunction, but the discretion is not unbridled and must be exercised in light of the four prerequisites for granting the "extraordinary relief." Canal Auth. of the State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). A district court may grant a preliminary injunction only when a movant shows the following four prerequisites:

(1) [I]t has a substantial likelihood of success on the merits;
(2) [T]he movant will suffer irreparable injury unless the injunction is issued;
(3) [T]he threatened injury to the movant outweighs the possible injury that the injunction may cause the opposing party;[7] and
(4) [I]f issued, the injunction would not disserve the public interest.

CBS Broad., Inc. v. EchoStar Commc'ns Corp., 265 F.3d 1193, 1200 (11th Cir. 2001) . A preliminary injunction may not be granted "unless the movant clearly establishe[s] the "burden of persuasion' as to each of the four prerequisites." Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)). Lastly, although preliminary injunctions may properly be granted in environmental litigation, they "have been issued not merely because some impact upon the environment has been alleged, but because the threatened harm has been properly shown to be irreparable. . . . Indeed, where no irreparable injury is alleged and proved, denial of a preliminary injunction is appropriate." Callaway, 489 F.2d at 574.

         III. DISCUSSION

         The Court finds that Plaintiffs are not substantially likely to succeed on the merits, and Plaintiffs will not suffer irreparable injury during the pendency of the suit. Although the balance of the harms and public interest prerequisites may favor granting the injunction, Plaintiffs fail to show all four prerequisites. Thus, the Court denies Plaintiffs' motion for a preliminary injunction.

         A. Substantially Likely to Succeed on the Merits

         Plaintiffs argue: (1) The Corps violated the Clean Water Act ("CWA") by issuing the permit when there is a less environmentally damaging practicable alternative; (2) the Corps violated the National Environmental Protection Act ("NEPA") by failing to prepare an environmental impact statement; (3) the Corps violated the CWA and NEPA by failing to adequately evaluate the cumulative impacts of the authorized project; and (4) the Corps violated the CWA and the Administrative Procedure Act ("APA") by issuing a permit without considering that it would exclude the public from a public beach. To succeed on the merits, Plaintiffs have to show the Corps' decisions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Ga. River Network v. U.S. Army Corps of Eng'rs, No. 4:10-cv-267, 2012 WL 930325, at *12 (S.D. Ga. Mar. 19, 2012), aff'd, 517 Fed.Appx. 699 (11th Cir. 2013). The arbitrary and capricious standard "requires substantial deference to the agency." Ga. River Network, 2012 WL 930325, at *12 ("The reviewing court may not substitute its judgment for that of the agency but must, instead, defer to the agency's technical expertise.") (quoting City of Oxford v. F.A.A., 428 F.3d 1346, 1352 (11th Cir. 2005)).

         In determining whether an agency's actions are arbitrary or capricious, courts "ask whether the agency 'examined the relevant data and articulated a satisfactory explanation for its action.'" Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 781 F.3d 1271, 1288 (11th Cir. 2015) (quoting Motor Vehicle Mfrs. Ass'n of U.S. v. State FarmMut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Courts should uphold agency decisions of "less than ideal clarity if the agency's path may reasonably be discerned." Id. (quotation omitted). The court, however, "may not supply a reasoned basis for the agency's action that the agency itself has not given." Id. (quoting State Farm, 463 U.S. at 43).

         1. Clean Water Act

         Plaintiffs argue the Corps violated the CWA by not adequately considering less environmentally damaging practicable alternatives before granting the permit. Plaintiffs argue the Corps dismissed, "without any analysis," nourishment of the beach without a groin. (Mot. for Prelim. Inj., at 9-12 (emphasis in original).)

         The CWA requires the Corps to consider whether "there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem."[8] 40 C.F.R. § 230.10(a). "An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." Id. § 230.10(a)(2).

         Although the Corps analyzed three alternatives that require beach nourishment without the Proposed Groin, Plaintiffs only focus on one - on-site alternative six: nourishment from the existing Southern Groin to the end of the Spit. (MFR, at 40.) The Corps found alternative six to be outside the scope of the Project, thus not practicable, because it would not meet the overall Project purpose. (Id.) The purpose of the Project is to "protect upland lots and development located along the shoreline of Sea Island from storm damage." (Id.) According to the Corps, there is no development upland along the shoreline covered by this alternative, nor could there be development because of the conservation easement. (Id.) This is supported by Dr. Basco, who stated, "There is a conservation easement that restricts any such development further south." (Dr. Basco Dep., Doc. 5-12, at 751:20-22.) Dr. Basco further stated, "except to strengthen some very low regions where there[ is] a potential for breaching, there would be no reason for strengthening the dune" further down the Spit. (Id. at 752:4-9.) Thus, any storm protection provided by this alternative would not serve to protect any "upland lots or development," making this alternative outside the overall Project purpose and, therefore, not practicable. (MFR, at 40.)

         Additionally, the Corps found that the storm protection provided by this alternative would be temporary, only lasting for a few months. (Dr. Basco Dep., at 722:17-21 ("I only considered the concern of a beach nourishment project with no groin in which the beach nourishment project was only 1200 feet. And I immediately concluded that that was not economically feasible because it would not last more than a few months.").)

         Plaintiffs also fault the Corps for failing to consider if beach nourishment would work if the nourishment project was extended to the southern tip of the Spit. (Mot. for Prelim. Inj., at 12.) However, according to the MFR, the Supplemental Report of Dr. Webb acknowledged that even if the beach nourishment project were extended to almost a mile, the storm protection would still be temporary. (MFR, at 28.) Furthermore, the Corps stated that Dr. Kana opined that "a project with such a short half-life is clearly not a practicable alternative when considering that the proposal would be outside the scope of the overall project purpose." (Id.)

         Importantly, the Corps also analyzed on-site alternatives four and five, which both involved beach nourishment without adding the Proposed Groin. On-site alternative four consisted of relocating the existing Southern Groin to the site of the Proposed Groin and renourishing the beach. (Id. at 39.) The Corps found this to be a practicable alternative, but not the least damaging practicable alternative, because by removing the Southern Groin "it is likely that it would result in the sand bypassing the southern end of Sea Island and potentially jetting the sand offshore and completely out of the sand[-]sharing system." (Id. at 43.) On-site alternative five consisted of removing the Southern Groin altogether and renourishing the beach. (Id. at 39.) The Corps found this not to be a practicable alternative because "without the [S]outhern [G]roin[, ] any sand placed along the shoreline . . . would disseminate downdrift quickly" and result in only temporary storm protection. (Id.) Long term, the result is "erosion of a portion of the existing storm protection" and "adverse effects to sea turtles through erosion of nesting habitat." (Ia\ at 40.)

         Although beach nourishment without a groin may be "the most common configuration for beach nourishment projects in the United States" (Mot. for Prelim. Inj ., at 11), the Corps had to analyze the Project in light of its purpose, intended long-term effects, and surroundings. The Court finds the Corps' alternatives analysis was neither arbitrary nor capricious.

         2. National Environmental Policy Act

         NEPA requires federal agencies to consider the environmental impact and potential alternatives for every proposed "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2) (C). NEPA does not set forth any substantive limits on an agency's decision-making authority, "[r]ather, it require[s] only that the agency take a "hard look' at the environmental consequences before taking a major action." Bait. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) .

         NEPA has "twin aims." Id. First, requiring an agency "to consider every significant aspect of the environmental impact of a proposed action." Id. (quotation omitted). Second, ensuring that an agency "will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Id. To achieve these aims, NEPA requires agencies to follow specific procedures. Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008).

         The procedures require an agency to first determine whether the action is a "major action with a significant effect." Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1214-15 (11th Cir. 2002) (citation and internal quotation marks omitted). To determine whether the effects are "significant," the agency must prepare an EA. 40 C.F.R. § 1501.4; Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir. 1998). The EA must "include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental ...


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