Altamaha Riverkeeper et al v. The United States Army Corps of Engineers et al, No. 4:2018cv00251 - Document 91 (S.D. Ga. 2020)

Court Description: ORDER granting the cross 81 Motion for Summary Judgment filed by the Federal Defendants; granting the cross 82 Motion for Summary Judgment filed by Sea Island Acquisition, LLC; and denying Plaintiffs' 68 and 70 Motions for Summary Judgment. The Clerk is directed to enter Judgment against Plaintiffs and close this case. Signed by Chief Judge J. Randal Hall on 09/30/2020. (jlh)

Download PDF

Altamaha Riverkeeper et al v. The United States Army Corps of Engineers et al Doc. 91 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA?. SAVANNAH DIVISION .J i m SEP 30 P Z 35 ALTAMAHA RIVERKEEPER; ONE HUNDRED MILES; CENTER FOR A SUSTAINABLE COAST, INC.; and SURFRIDER FOUNDATION, 'k J k k O’ k k k Plaintiffs, k CV 418-251 k V . k THE UNITED STATES ARMY CORPS OF ENGINEERS; LT. GENERAL TODD T. k SEMONITE, in his official capacity * k as Commanding General of the U.S. k Army Corps of Engineers; COL. k DANIEL HIBNER, in his official k capacity as District Commander of k the Savannah District; TUNIS MCELWAIN, in his official capacity * k as Chief of the Regulatory Branch k of the U.S. Army Corps of k Engineers, k k Defendants, k SEA ISLAND ACQUISITION, k LLC, k k Defendant-Intervenor. ORDER This ("Apa") , is 5 2015-00742 an action U.S.C. (the of Engineers \\ (the under §§ 701 Permit") \\ Corps") the et seq. , Administrative challenging Procedure Act Permit Number SAS- issued by the United States Army Corps to Sea Island Acquisition, LLC, and the Dockets.Justia.com subsequent Island modification Acquisition to of the The Permit. construct a new T-head Permit groin allows Sea on Sea the Island Spit and to dredge and pump sand from an offshore source for construction renourishment. of the T-head groin, new dunes and beach All parties in the case have filed their respective motions for summary judgment, which are ripe for adjudication.^ The Federal Defendants and the Defendant-Intervenor Sea Island Acquisition call upon the Court to find that the Corps did not act arbitrarily and capriciously by issuing the Permit and modification and that the Corps acted within its discretion and authority in issuing the Permit and modification; thus, they seek judgment as a matter of law on all of Plaintiffs' Plaintiffs, four separate and distinct conservation claims. groups, ask the Court to vacate the Permit and require removal of any portion 1 Specifically, Plaintiffs Altamaha Riverkeeper, One Hundred Miles, and Surfrider Foundation filed a motion for summary judgment and Plaintiff Center for a Sustainable Coast, Inc. , filed a motion (Docs. 68 & 70, for summary judgment on February 28, 2020. respectively.) Defendants United States Army Corps of Engineers, Lt. Col. Todd T. Semonite, Col. Daniel Hibner, and Tunis McElwain (the "Federal Defendants") filed their motion for summary judgment on April 17, 2020. (Doc. 81.) Defendant Sea Island Acquisition also filed a cross-motion for summary judgment that same day. (Doc. 82.) The Clerk gave the non-moving parties notice of the summary judgment motions and the summary judgment rules, of the right to file affidavits or other materials in opposition, and of the consequences of default. (Docs. 69, 71, 83 & 84.) Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (ll^h cir. 1985) (per curiam), are satisfied. 2 of the groin that has been built as well as mitigation of any impact caused by the construction of the project. I. STATUTORY FRAMEWORK Plaintiffs seek review of the Corps' actions under the APA for alleged violations of the Clean Water Act ("CWA") , 33 U.S.C. §§ 1251-1388, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370m, and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544. The CWA was enacted to \\ restore and maintain the chemical. // 33 physical, and biological integrity of the Nation's waters. U.S.C. § 1251(a). Section 301(a) of the CWA prohibits discharges \\ of pollutants, such as dredged or fill material, into waters N except 1311(a). in Section compliance with the statute. 33 navigable U.S.C. § 404 (a) authorizes the Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredged or fill material at specified disposal sites. § 1344(a). 33 U.S.C. Because the Project at issue in this case involved the placement of dredged or fill material in the navigable waters of the United States, a Section 404 permit was required. The Corps issues CWA Section 404 permits under the guidance and requirements imposed by its regulations. see 33 C.F.R. Pt. 320, as well as the CWA Section 404(b)(1) Guidelines developed by the Environmental Protection Agency and the Corps, see 40 C.F.R. 3 Pt. 230. The Section 404(b)(1) Guidelines specify that the Corps must ensure that the proposed fill material will not cause any significantly adverse effects on human health or welfare, aquatic life, aquatic ecosystems, or recreational, aesthetic, or economic values. of In addition. 40 C.F.R. § 230.10(c)(l)-(4). dredged or fill material shall be permitted no discharge if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic so ecosystem. long as the alternate does not have other significant adverse environmental consequences. NEPA potential action. // r/ 40 C.F.R. § 230.10(a). requires federal environmental agencies effects of which includes CWA Section to a consider proposed 404 permits. Nat. Res. Council, 490 U.S. 360, 371 (1989). and disclose major Marsh federal v. Or. NEPA is a purely Id. procedural statute; it does not mandate substantive results.^ It \N requires only that the agency take a 'hard look' at environmental consequences before undertaking a major action. // the N. Buckhead Civil Ass'n v. Skinner, 903 F.2d 1533, 1540-41 (ll^h Cir. 1990) (quoted source omitted). An agency's evaluation of environmental consequences must be based on scientific information 2 The federal regulations implementing NEPA were comprehensively updated recently with an effective date of September 14, 2020. See Fed. Reg. 43,304 (July 16, 2020) . The Court cites, however, to the federal regulations as they existed at the time of the agency action in this case. 4 that is both 1500.1(b). "accurate n and of "high quality. // 40 C.F.R. § If an agency relies on the permit applicant to submit environmental information, the \\ agency shall independently evaluate the information submitted . . . and shall be responsible for its accuracy, scope, and content . . . NEPA requires Statement ("EIS") agencies for to prepare major 40 C.F.R. § 1506.5(a) . an Federal Environmental actions significantly n affecting the quality of the human environment . . § 4332(C). 42 U.S.C. To determine if an action requires an EIS, the agency will prepare an Environmental Assessment ("EA"), briefly Impact describes the examines proposal. a document that alternatives, and 40 C.F.R. §§ 1501.4(b), 1508.9; considers environmental aspects. Fund for Animals v. Rice, 85 F.3d 535, 546 (11^^ Cir. 1996). If the agency concludes .the action will not have significant impact. it may issue a Finding of No Significant Impact ("FONSI") in lieu of an EIS. The 40 C.F.R. § 1508.9(a) (1) . ESA requires federal agencies to carry out the // Congressional policy of conserving "endangered" or "threatened plant and animal species. for the listing warranted, and of for U.S.C. § 1533(a). 16 U.S.C. § 1531(b). species the as threatened designation Section 7 of of the The ESA provides or \\ critical ESA endangered, if habitat. // 16 requires that federal agencies ensure that any action authorized, funded, or carried out by such agency is not likely to w jeopardize the continued existence 5 of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical . . 16 U.S.C. § 1536(a)(2). The Secretary refers to either // the Secretary of the Interior and the Secretary of Commerce, who in turn have delegated their responsibilities to the United States Fish and Wildlife Service ("USFWS") and the National Marine Fisheries Service ("NMFS"), respectively.^ If the action agency determines its action \\ may affect" a listed species or critical habitat, it is required to consult with 50 C.F.R. § the USFWS or NMFS depending on the species at issue. 402.14(a) . If the action agency determines. concurrence of USFWS or NMFS, that the action adversely affect consultation necessary. // listed process 50 is species terminated, C.F.R. § 402.13(a). or \\ no written is not likely to critical and with habitat, further the action is A formal consultation is required if the agency action is likely to adversely affect listed species or critical habitat. the issuance of a Formal consultation culminates in biological opinion" by USFWS or NMFS. See 50 C.F.R. § 402.14(g). 3 In general, the USFWS has authority over terrestrial species See, e.g., Nw. and the NMFS has authority over marine species. Res. Info. Ctr. v. NMFS, 56 F.3d 106.0, 1065 (9^^ cir. 1995). Plaintiffs challenge the Corps' Section 7 compliance only as to consultation with NMFS. 6 II. FACTUAL BACKGROUND Under the APA, judicial review agency's administrative decision-making facts set forth process record, and generally involves only the which documents the justifies its decision. agency's Thus, the herein are either undisputed or drawn from the Administrative Record^ in this case as asserted by a party in its Statement of Material Facts. the facts against Administrative the Record. The Court has independently verified asserting The party's Court will citation only cite to the to the Administrative Record (or "AR" with the Bates page numbers) to the extent it believes helpful to do so. Sea Island is a barrier island along the Georgia coast that IS approximately five miles long. The southern portion of the island is an undeveloped area known as the Spit, which is largely protected portion by of a the conservation island easement. provides In habitat endangered sea turtles and shorebirds. fact, for the southern threatened and The Spit is part of the sand-sharing system of surrounding coastal barrier islands. Sea Island is also a popular recreation area for surfing, paddling. kayaking and walking along the beach. In October 2015, Sea Island Acquisition, a private resort and real estate development company, filed ^ an application with the The Federal Defendants filed the Administrative Record in three parts. (See Docs. 46, 48 & 67.) 7 Corps seeking a CWA Section 404 permit to construct a T-head groin south of property it sought to develop on Sea Island known as the Reserve, n easement which is located immediately north of the conservation boundary. application renourish also the (Application, sought beach AR authorization between at to The 3479-3682.) construct an existing groin and dunes and the proposed groin.5,6 A groin is a hard structure, often constructed of rock. concrete or steel. that is built perpendicular to the beach and extends into the water. Plaintiffs presented evidence by way of expert opinion and publications that groins may trap or block sand on the "updrift" side of the groin that would otherwise naturally move with the \\ downdrift n prevailing currents side of the groin. downdrift erosion. along the shoreline to the This may cause an acceleration of Plaintiffs also presented evidence that the proposed groin would have negative impacts on wildlife, especially sea turtles. On Project. December 18, 2015, the Corps published notice of the The overwhelming majority of comments received by the 5 The proposed construction of the groin, renourishment of the beach, and activities in furtherance thereof are collectively // referred to as the "Project. ® The proposed groin is south of two existing groins, the closest one referred to as the Southern Groin and the other referred to as the Northern Groin. Corps from individuals, federal and state agencies, and conservation organizations opposed the Project, and many requested (See a public hearing. generally Table of Requests for Public Hearing, AR at 548-558; Table of Issues and Concerns, AR at 559728 . ) The Corps did not hold a public hearing. Following the initial notice and comment period on Sea Island Acquisition's application, two major hurricanes, Matthew and Irma, caused substantial damage to Sea The Island. storms severely eroded the beach and many of the dunes on the Spit. Sea Island Acquisition was alerted that the Project needed to be redesigned and reevaluated. // Sea Island Acquisition therefore submitted an addendum to its 2015 permit application, seeking authorization (1) to construct the requested); (2) new T-head to dredge groin between on the Spit (as previously 1,315,000 to 2,500,000 cubic yards of sand from an offshore source; and (3) to renourish over 17,000 linear feet'^ of beach on Sea Island Northern Groin to the proposed T-head groin. AR at 1699-1889.) Island which w not submitted concluded that the species. to the existing (Amended Application, In support of its supplemental application. Sea Acquisition likely from an amended proposed adversely affect biological assessment Project "may affect" but // threatened and was endangered (Id. at 1729-1824.) 7 The 2015 permit application involved only 1,200 linear feet of beach. 9 Because of the substantial changes proposed in the March 2018 addendum, the Corps published March 20, 2018. notice of the revised Project on The Corps again received numerous comments to the Despite pending requests, the Corps did proposed revised Project. not hold a public hearing. Following receipt of public comments. the Corps prepared a Memorandum for Record ("MFR") documenting its Environmental Assessment and Statement of Findings for the permit application. (MFR, AR at 219-307 . ) purpose The Corps stated therein that the Project's was "storm protection" and "to protect upland lots and development located along the shoreline of Sea Island from storm damages. ft On September 12, 2018, the Corps issued the Permit authorizing the construction requested by Sea Island Acquisition in its 2018 addendum. (Permit, AR 1-44.) Concurrently, the Corps issued an Environmental Assessment ("EA") significant impact ("FONSI"). with a finding of no (Id. ) After the permit was issued. Plaintiffs filed this lawsuit.® The Court denied their motion for preliminary injunction, however. ® The instant case was filed by Plaintiffs Altamaha Riverkeeper and One Hundred Miles on October 31, 2018. Two days later. Plaintiff Center for a Sustainable Coast, Inc. filed suit regarding the same Permit, see Ctr. for a Sustainable Coast, Inc, v. U.S. Army Corps of Eng'rs, Case No. 4:18-CV-254 (S.D. Ga. Nov. 2, 2018), which was then consolidated into this action (see id. , doc. 13). On December 19, 2019, the Court granted Sea Island Acquisition's motion to intervene. (Doc. 24.) On February 13, 2019, Plaintiffs filed an Amended Complaint to add Plaintiff Surfrider Foundation and a claim under the Endangered Species Act. (Doc. 41.) On 10 and Sea Island Acquisition began constructing the Project.^ Plaintiff Center for a Sustainable Coast, Inc. ("CSC") discovered that Sea Island Acquisition locations and depths locations among other as had well dredged as sand from placed violations of the sand Permit. unauthorized in unauthorized Plaintiff CSC notified the Corps and Sea Island Acquisition of its intent to sue. (NOI Letter dated Apr. 24, 2019, AR at 5174-5192.) Thereafter, Sea Island Acquisition asked the Corps to modify the permit to date. // authorize the project as it has been constructed to (Modification Request, AR at 5055-5146.) In response, the Corps found that Sea Island Acquisition had violated the terms of its permit. but it approved the modification request on July 5, 2019. (Modification MFR, AR at 4639-4647; Authorization, AR at 4628-4638.) the proposed modifications did Permit Modification The Corps had determined that not change the original determinations regarding historic properties, the Public Interest September 13, 2019, Plaintiffs filed Amended Complaints in light These of the Corps' 2019 modification to the original Permit. Amended Complaints (docs. 59 & 60) are the operative complaints in the case. ® For purposes of the preliminary injunction motion, the Court considered whether or not Plaintiffs had a likelihood of success on the merits of several of their claims, and the Court concluded that Plaintiffs were unlikely to be able to establish successfully that the Federal Defendants had violated their obligations under NEPA, the CWA, or the APA. The Court did not address any claim under the ESA or pertaining to the Permit modification, (See Order of Dec. 10, 2018, Doc. 23.) 11 Review, the Section 404(b)(1) analysis, or cumulative impacts assessment performed during the evaluation of the original permit. and that the proposed modifications were in the public interest. were in compliance with the Section 404(b) (1) Guidelines, and would not have a significant effect on the human (See environment. generally Modification MFR.) III. STANDING At the outset, the Court must address Defendants' challenge to Plaintiffs' standing. Article III of the United States Constitution requires a plaintiff to show: (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc, v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). All four Plaintiffs are organizations, meaning they have standing to sue on behalf of their members when one of their members (1) would otherwise have standing to sue individually; (2) the member's interests at stake in the suit are germane to the organization's purpose; and (3) the claim asserted nor the relief requested participation of individual members in the lawsuit. 12 neither requires n the Id. (citing Hunt V. (1977)). Wash. State Finally, Apple because Advert. Comm'n, Plaintiffs are 432 U.S. 333, challenging 343 agency action under the APA, they must identify some action taken by the agency that affects them in the required manner; and they must ft show that they have suffered a "legal wrong or a wrong within the zone of interests of the underlying statute. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. at 882-83. As the parties invoking federal jurisdiction. Plaintiffs bear the burden of demonstrating their standing. at 561. See Lujan, 504 U.S. So long as one of the Plaintiffs has standing, the Court need not decide whether each Plaintiff has standing, especially where they seek a particular form of global relief. V. Lynn School Comm., 418 F.3d 1, 11 (1^^ Cir. 2005) 11 See Comfort (citing Watt V. Energy Action Educ. Found., 454 U.S. 151, 160 (1981) ("Because we find California has standing, we do not consider the standing of the other plaintiffs. // (cited sources omitted))); Rumsfeld v. F. for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (agreeing with Court of Appeals that "the presence of one party with standing is sufficient to satisfy Article Ill's case- 10 The Permit is Plaintiffs satisfy both of these requirements, a final agency action, and the injuries Plaintiffs assert are of the sort intended to be prevented by NEPA and the CWA. 11 Comfort was abrogated on other grounds by Parents Involved in Comm. Schools v. Seattle School List. No. 1, 551 U.S. 701 (2007). 13 or-controversy requirement"); Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th cir. 2006) ("So long as one party has standing, other parties may remain in the suit without a standing injury.") (citing Clinton v. City of New York, 524 U.S. 417, 43436 (1998)). 12 For the following reasons, the Court finds that Plaintiff Altamaha Riverkeeper ("ARK") has satisfied Article Ill's standing requirements. ARK supports its standing with declarations from its Executive Director, Jenifer Hilburn, and one of its members, Joni House. (See Hilburn Decl., Doc. 41-1; House Decl., Doc. 41-2.) Defendants argue that these declarations fail to demonstrate that at least one of ARK's members would have standing to sue in her See Summers v. Earth Island Inst., 555 U.S. 488, 498 own right. (2009) (requiring that at least one identified member of a plaintiff-organization suffer harm). Ms. House's recreational declaration activities'^ near states the Spit enjoyment from the Spit's natural state. that and she engages derives in aesthetic (See House Decl. 'H'l 5- She states that the proposed project would have a negative of the \\ one good and criticism For further discussion // plaintiff rule, see Aaron-Andrew P. Bruhl, One Good Plaintiff Is Not Enough, 67 Duke L. J. 481 (2017). 12 13 Ms. House sails, swims, kayaks, crabs, fishes, bird-watches, views wildlife, star-gazes, beach walks, and more on the Spit and surrounding areas. (See House Decl. H 6.) 14 impact on her enjoyment of the Spit and its wildlife and that those rr harms \\ would be redressed by an appropriate order of this court. (Id. nil member // identifiable the satisfies This 3, requirement from Summers. The Court finds that Ms. House's declaration also satisfies the other requirements of organizational standing for ARK: Ms. House would have standing to sue individually, her interests are germane to those of ARK, relief requested and neither the claim asserted nor the requires individual participation of ARK's members. Defendants next argue aesthetic interests are inj ury-in-fact ff w too for Article that Ms. vague III House's and recreational and conclusory to establish standing. However, the United States Supreme Court has held that "plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity. U.S. at 183 (quoting Sierra Club 14 v. Morton, 405 rr Laidlaw, 528 U.S. 727, 735 ARK's purpose is to "protect, defend, and restore" areas of the Georgia coast including the Spit. (See Hilburn Decl. 5 4.) It does so through public education, advocacy, litigation, and monitoring of the area. (See id.) 15 Ms. House's declaration satisfies that standard, at least (1972)) . with respect to ARK's claims premised on NEPA and the CWA.^^ ARK also meets Article Ill's requirements of traceability and redressability. in fact. As for traceability, ARK must show that its members' injury is party's As discussed above, Ms. House documents an injury \\ rather than a third fairly traceable to Defendants' actions. // See Luj an, 504 U.S. at 560. In other words. it must be \\ reasonably probable that the challenged actions will threaten" a plaintiff's interests. 1172. Ms. House's declaration Ouachita Watch, 463 F.3d at satisfies that requirement by explaining how the proposed project would negatively affect her recreational and aesthetic interests by harming the wildlife and habitat as well as increasing erosion of the Spit. Finally, Article III requires that the injury be redressable by a favorable Project, which decision. would ARK ultimately remediate the seeks injuries Accordingly, ARK has Article III standing. removal of the discussed above. As such, the Court need not address the standing of the remaining Plaintiffs. IV. STANDARD OF REVIEW Summary judgment in an APA case \\ serves as the mechanism for deciding, as a matter of law, whether an agency action is supported 15 Because Plaintiffs' ESA claim is moot, their standing with respect to that claim is not considered. See Section V.E., infra. 16 by the administrative record and is otherwise consistent with the APA standard of review. It Resolute Forest Prod., Inc, v. U.S. Pep't of Aqric., 187 F. Supp. 3d 100, 106 (D.D.C. 2016) . Because of the limited role a district court plays in reviewing the administrative record, the typical summary judgment standards are not applicable. Rather, the APA provides the following standard of judicial review of agency actions on summary judgment: w agency action it finds to be A court must set aside arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 706(2)(A). \\ ft 5 U.S.C. § The "arbitrary and capricious" standard of review is exceedingly deferential. // Fund for Animals, 85 F.3d at 541; see also N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538 (ll^h Cir. 1990) ("Along the standard of review continuum, the arbitrary and capricious standard gives an appellate court the least latitude in finding grounds for reversal."). \\ The reviewing court may not substitute its judgment for that of the agency but must, instead. defer to the agency's technical expertise. V. // City of Oxford, Ga. FAA, 428 F.3d 1346, 1352 (11th cir. 2005). The court is required to determine whether the Corps' decision was reasonably supported by the information before it. not require that all the data support the agency's This does decision. // Envtl. Coal. Of Broward Cnty. v. Myers, 831 F.2d 984, 986 (11th Cir. 1987). data and \\ Nevertheless, the agency must examine the relevant articulate a satisfactory 17 explanation for its action including 'a rational connection between the facts found and the choice made.!// Mut. Auto. Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Ins. Co., 463 U.S. 29, 43 (1983) (quoted source omitted). With respect to NEPA, an agency's decision is arbitrary and capricious under the required \\ hard look // agency to consider; (2) the factors that Congress intended the failed entirely if it suffers (1) the decision does not rely on the from one of the following: agency review to consider an important aspect of the problem; (3) the agency offers an explanation which runs counter to the evidence; or (4) the decision is so implausible that it cannot be the result agency expertise. of differing viewpoints or the result of Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (ll^h cir. 2002). Finally, demonstrate at that all the times Corps the acted burden is on arbitrarily Plaintiffs and to capriciously. See Black Warrior Riverkeeper, Inc, v. Ala. Dep't of Transp., 2016 WL 223672 Assistance (M.D. Ala. Found. Inc. Jan. v. 19, 2016); see also Legal Envtl. U.S.E.P.A., 276 F.3d 1253, 1265 (ll^h Cir. 2001) ("[A] party seeking to have a court declare an agency action to be indeed.") presume arbitrary and capricious Absent evidence to the that regulations. // an agency has acted carries contrary. in [the heavy burden court will] accordance Sierra Club, 295 F.3d at 1223. 18 a with its V. LEGAL ANALYSIS Plaintiffs contend they are entitled to summary judgment on their claims that the Corps violated the CWA, NEPA and the ESA in the following ways: \\ hard look n The Corps violated NEPA by failing to take a at the impacts of the Project and failing to prepare an EIS. The Corps violated the CWA and NEPA by failing to adequately evaluate the cumulative impacts of the Project. The Corps violated the CWA by issuing the Permit when there less a damaging practicable environmentally alternative. IS The Corps violated the CWA and the adequately consider access issues. APA by failing to The Corps violated the ESA by failing to consult NMFS. The Corps violated the CWA and the APA by sanctioning Sea Island Acquisition's permit violations. The Corps violated NEPA and the EPA for failing to conduct a public hearing. For their part, Defendants seek summary judgment on all of these claims. The first four claims were considered by the Court in denying Plaintiffs' request for a preliminary injunction. While the Court borrows in large part from its prior analysis, it has carefully reconsidered and reevaluated each argument anew. That said. Plaintiffs have not set forth any new legal argument nor have they pointed to any other part of the Administrative Record that would 19 compel a different result here; thus, Defendants are entitled to summary judgment on those claims. The Court finds Defendants are entitled to summary judgment on the remaining claims as well. A. The Corps' "Hard Look" and Failure to Issue an EIS ri NEPA has \\ twin aims. Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). First, it requires an agency to consider every significant aspect of the environmental impact of a proposed action. it requires the agency to \\ // Id. (quotation omitted). Second, inform the public that it has indeed ft considered environmental concerns in its decisionmaking process. Id. (citation omitted). As previously explained, a federal agency prepares an EA (Environmental Assessment) to determine whether the environmental impact of the proposed action is significant enough to warrant an EIS. If the EA shows the proposed project will not have any significant environmental impact, as is the case here. the agency issues a The FONSI. agency is required to make a convincing case in support of its FONSI determination. In evaluating the Corps' decision in this regard, the APA requires courts to give substantial deference to the Corps, \\ not only when reviewing decisions like what evidence to find credible and whether drafting to issue a decisions like FONSI how or EIS, but also when reviewing much discussion to include on each topic, and how much data is necessary to fully address each issue. n Ga. River Network v. U.S. Army Corps of Eng'rs, 2012 WL 930325, at 20 *11 (S.D. Ga. Mar. 19, 2012) (quoting Sierra Club v. Van Antwerp, 526 F.3d 1353, 1361 (11^^ cir. 2008)); Marsh, 490 U.S. at 376 (stating that a FONSI is a factual determination which "implicates substantial agency expertise n and is entitled to deference). As stated by the Eleventh Circuit, the court''s ultimate task is to ensure that the agency took a "hard look" at the environmental r It Black Warrior Riverkeeper, consequences of the proposed action. Inc. V. U.S. Army Corps of Enq'rs, 781 F.3d 1271, 1288 (ll^h cir. 2015) (quoting Sierra Club, 295 F.3d at 1216). In doing so. the court cannot interfere with the agency decision made within its ft statutory discretion. 629 F.2d 1005, environmental 1011 See S. La. Envtl. Council, Inc, v. Sand, (5^h effects cir. of the Also, 1980). proposed [i]f the action are adverse adequately identified and evaluated. the agency is not constrained by NEPA n from deciding that other values outweigh the environmental costs. Robertson (1989). v. Methow In this Valley Citizens Council, 490 U.S. way. \\ NEPA merely than unwise-agency action. can only find inadequate discretion. The a where federal it is Id. at 351. agency's arbitrary, uninformed-rather Importantly, the court attempted capricious, NEPA or an compliance abuse of Van Antwerp, 526 F.3d at 1361. Eleventh considered n prohibits 332, 350 in Circuit determining has set whether forth the Corps' prepare an EIS was arbitrary and capricious: 21 four criteria decision to be not to (1) The Corps w must have accurately identified the relevant environmental concern"; (2) The Corps "must have taken a \ hard look' at the problem in preparing the EA"; (3) If a FONSI is made, the Corps \\ must be able to make a convincing case for its finding"; and (4) If the Corps finds \\ an impact of true significance, preparation of an EIS can be avoided only if the [Corps] finds that changes or safeguards in the project sufficiently reduce the It impact to a minimum. Hill V. Boy, 144 F.3d 1446, 1450 (11^^ cir. 1998) (quoted sources omitted). 16 In this case. Plaintiffs have focused on two principal environmental concerns or impacts at which they contend the Corps 16 Additionally, the applicable federal regulations provide ten factors to consider whether an environmental impact is significant, including the following factors brought into play by Plaintiffs' claims: Unique characteristics of the geographical area; The degree to which the possible effects on the human environment are likely to be highly controversial; Whether the action is related to other actions with individually insignificant but cumulatively significant impacts; and The degree to which the action may adversely affect an endangered or threatened species or its habitat. 40 C.F.R. § 1508.27(b). 22 failed to take the requisite hard look. 17 These concerns involve downdrift erosion and harm to wildlife. 1. Downdrift Erosion Plaintiffs complain that the Corps did not take the requisite hard look // at the effect of the new groin on downdrift erosion, particularly erosion of the Spit, south of the proposed new groin. To address, the erosion issue from the outset. Sea Island Acquisition attached an expert report to its Permit Application titled \\ Sea Island Beaches: Erosion-control Projects, David Basco in 2015. // Shoreline Dynamics and History of written by Dr. George F. Oertel and Dr. (Oertel/Basco Report, AR at 1973-2037.) This report explained that prior to the construction of the Northern and Southern Groins, Sea Island was hard armored with revetments by private shoreline landowners. retreat, the but beach while the continued revetments to erode. halted By the the late 1980's there was no high tide beach for many areas of Sea Island. Oertel and Basco further explained that the existing beach was the result of the construction of the groins and a beach nourishment project where sand w.as pumped from an offshore source onto the area between the two groins. Thus, the sand present between the n 17 It bears reiterating that Plaintiffs have the "heavy burden of showing that an agency action is arbitrary and capricious. See St. Johns Riverkeeper, Inc, v. U.S. Army Corps of Eng'rs, F.3d , 2020 WL 2735208 (M.D. Fla. May 26, 2020) (quoted and cited sources omitted). 23 existing groins was not captured and prevented from drifting down the beach. Further, recession of the shoreline area south of the existing groins is due to the lack of shoreline protection, not from the existing In fact, Oertel and Basco suggested groins. that the tapered effect of the shorter proposed groin should aid in the transition of sand back to the natural beach. In their comment letters, however. Plaintiffs pointed out several sources of expert information explaining that groins cause downdrift erosion by trapping material such as sand and silt. Plaintiffs presented the expert testimony of Dr. Robert S. Young and Chester W. Jackson, Jr., who opined that the existing groins caused dramatic rates of erosion expected from the proposed and groin. Jan. 15, 2016, AR at 2038-2140.) similar erosion could be (Greenlaw's Comment Ltr. of They also present the expert report of Dr. Bret M. Webb who offers similar conclusions. (SELC Comment Ltr. of Jan. 15, 2016, AR at 2141-2182.) In response, the Corps turned to Mr. Kevin Conner, a coastal engineer, to independently review \\ reports document[ing] the history of shoreline change on Sea Island and the potential for the Project to result in erosion of downdrift shorelines. AR at 288.) reports Statement on (MFR, Mr. Conner reviewed (1) the Oertel/Basco Report; (2) Greenlaw's Comment Letter of Jan. 15, 2016, expert // of Groin Drs. Young Impacts, and and 24 Jackson, Georgia which a included the Coastal Department Scientist of Natural Resources and USFWS comments regarding the Project; (3) the SELC ("Southern Environmental Law Center") Comment Letter of Jan. 15, 2016, which included the expert report of Dr. Webb; (4) the comprehensive response to Public Comments from Resource and Land Consultants (on behalf of Sea Island Acquisition) , which includes various reports and studies; and (5) the SELC's Comment Letter of February 28, 2017.18 (See AR at 1971-72 with attachments AR at 1973-2037; AR at 2038-2140; AR at 2141-2182; AR at 2183-2371; and AR at 2372-2394, respectively.) the Sea Island Spit is the hardening of the \\ After review, Mr. Conner conceded sand starved and eroding as a result of northern portion construction of the two T-head groins. // of the island (AR at 1970.) and the However, in consideration of the proposed new groin, Mr. Conner opined that it would not increase erosion downstream. He stated: \\ It is unlikely that the construction of a new shorter groin just south of the existing southern groin will interrupt sediment transport 18 Plaintiffs complain at great length that the Corps did not provide to Mr. Conner for review the attachments to this SELC To the extent this letter, and thus, his review was incomplete, is accurate, the omission is not clear error. First, the 23-page SELC Letter that he did review thoroughly summarizes and analyzes the expert testimony and reports in the missing attachments. Second, this expert information pre-dates Sea Island Acquisition's amended plan to dredge offshore and fill 17,000 linear feet of beach. Third, the Corps analyzed the letter as well as the attachments. Finally, Plaintiffs fail to point to any specific information not considered by Mr. Conner that would have altered his analysis. 25 "19 in any measurable way under the current system. (Id.) Mr. Conner then recommends that the construction of the groin be accompanied by "planned fill placement" and a monitoring program. As the Court conflicting views, has \\ noted previously, when (Id.) experts have an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if. as an original matter, persuasive. rr a court might find contrary views more (See Order of Dec. 10, 2018, at 25 (quoting Marsh, 490 U.S. at 378).) Moreover, many of the expert reports or testimony did not take into account Sea Island Acquisition's expansion of the Project to nourish more than three miles of Sea Island shoreline, which was not proposed until March 2018. amended. Sea Island Acquisition With respect to the Project as presented supplemental from Dr. Timothy W. Kana and Dr. David R. fiasco. reports (See generally Sea Island Acquisition Resp. to SELC's Comment Ltr. of Jun. 18, 2018, AR at 4105-4386.) Dr. Kana opined that the volume of sand infused into the Project area will be in excess of the trapping capacity of the existing groin and the proposed new groin. Thus, the (i.e. resulting bypassing sand will reduce the historical) erosion rate for the area 19 rr underlying south of the proposed groin. The Corps points out in the MFR that the area between the Southern Groin and the new proposed groin represents only an 8% increase. (MFR, AR at 235.) 26 Dr. Basco provided similar opinions. the Spit area has experienced Also, Dr. Kana noted that highly variable rates of change since the mid-1980s. . . . These variable changes do not correlate with the timing of nourishment and construction of the south groin in 1991. If (See id. at 4115-4120.) Ultimately, the Corps determined that the introduction of 1.3 to 2.5 million likely to cubic yards of sand from an offshore source is allow the beach between the groins to eventually reach an equilibrium state and thus allow some sand to bypass the groins and travel downdrift to the [S]pit. n (MFR, AR at 235.) also noted that the low profile of the proposed groin tf sand to pass over and around the structure. stone will allow 262.) The Corps \\ would allow and the granite armor sand to pass through the structure. n (Id. at Importantly, the Corps imposed a requirement that Sea Island Acquisition monitor sand movement within the Southern Groin and proposed new groin and downdrift from the new groin. (Id. at 235.) If the results of the monitoring indicate that the proposed groin is trapping sand. Sea Island Acquisition submit a correction action plan. In consideration concludes that the of Corps the would be required to (Id.) MFR as accurately outlined here, identified environmental concern of downdrift erosion, took the the Court relevant a "hard look" at the problem in preparing the EA, and made a convincing case through its expert and the utilization 27 and reliance upon the beach nourishment and monitoring plans to determine that the impact on the sand-sharing system was not significant. adverse The Corps' decision in this regard was not arbitrary and capricious. 2. In Harming Wildlife processing Sea Island Acquisition's permit application, the Corps requested the analysis of the USFWS and NMFS because of the Project's possible impact on wildlife. 1904-1966.) (AR at 1141-42; AR at Specifically, the Corps called upon these agencies to evaluate the effects upon sea turtles and the piping plover as required under the ESA and the Magnuson-Stevens Fishery Conservation and Management Act,20 16 U.S.C. §§ 1801 et seq. On April 20, 2018, the NMFS responded, voicing the following concerns particularly with regard to impacts from the proposed shoreline armoring": Hard stabilization structures lead to a wide, range of adverse environmental impacts resulting from permanent alteration in natural shoreline processes including larval transport and sediment transport. The placement of the proposed hardened structure will result in the permanent loss of unconsolidated bottom habitat directly underneath the proposed structure and accelerated erosion of downdrift habitat. The close spacing of the proposed groin with the existing groin may create a trap for pelagic eggs and larvae of managed species and their prey. 20 Congress enacted the Magnuson-Stevens Act to respond to overfishing and "inadequate conservation measures which were threatening future commercial and recreational fishing, as well as the very survival of species." Ace Lobster Co. v. Evans, 165 F. Supp. 2d 148, 154 (D.R.I. 2001) (quoted source omitted). 28 Accordingly, the recommendations NMFS ("CR"): provided \\ (1) The the following T-head groin conservation portion of the proposed action should not be permitted[; and] (2) To the extent practicable, work should be limited to seasonal periods n of low (NMFS Ltr. of Apr. 20, 2018, AR at 4102- biological activity. 4104.) On July 17th, -(-he Corps responded, stating that it would not follow CRl but would follow CR2. at 926-928.) (Corps Ltr. of Jul. 17, 2018, AR The Corps justified the reasons for not following CRl as follows: \\ [T]he footprint of the project (i.e. the groin and beach nourishment activities) represents a relatively small area of habitat . . . that is utilized" by the species at issue. and \\ ample habitat is located both upstream and downstream of the project site that these species could relocate to. // (Id. at 926. ) Moreover, the Corps explained and iterated the reasoning of Mr. Conner and Sea Island Acquisition's experts that the small proposed increase in the groin field is not expected to more than minimally exacerbate ongoing erosion of the [Sjpit. // ft The Corps also explained about the "tapering effect (Id. at 927.) of the smaller proposed groin and about the anticipated equilibrium state caused by the added sand that will allow some sand to bypass the groins and travel downstream to the Spit. (Id. ) Although not satisfied with the analysis of the Corps in its July 17th letter, and persisting with its recommendation not to 29 permit the new proposed groin, the NMFS nevertheless decided not to \\ further elevate the decision tf and noted that the Corps had (NMFS Ltr. of Jul. 27, complied with the Magnuson-Stevens Act. 2018, AR at 837-838.) The USFWS responded to the Corps' request for evaluation on (USFWS Ltr. May 22, 2018. of May 22, 2018, AR at 1211-1214.) Therein, the USFWS notes that the Project includes a supplemental Biological Assessment (provided by Sea Island Acquisition) with \\ n measures to avoid and minimize impacts. The USFWS concluded that because these proposed measures are included in the Project, \\ it concurred with the Corps' determination that the Project n affect, but is not likely to adversely affect the may relevant species. (Id.) At summary judgment. Plaintiffs take issue with the Corps' determination that the Project will not likely adversely affect the piping plover or the sea turtle because it did not take the requisite "hard look" at the impact the Project would have on these species. a. With Piping Plover Habitat respect to the piping plover, following determinations in the MFR. uninhabited areas of the shoreline the Corps made the The piping plover prefers (i.e., away from human interaction) and are therefore found primarily at the northern and 30 southern ends of inhabited (MFR, islands. AR at 267-268.) Continuing, the Corps stated: due to the According to the [Biological Assessment], Sea Island development, high usage, and high traffic, piping plover usage near and within the proposed project rr Regarding piping plover area is expected to be low. critical habitat, the listed critical habitat is located Therefore there would be no outside the project site, direct effect to critical habitat. Indirectly, continued erosion of the [Sjpit could result in adverse effects to listed critical habitat, However, . . . the proposed project would not increase erosion of the [Sjpit in any measurable amount, Therefore, the Corps has determined that the project would have no effect on piping plover critical habitat. (Id. at 268 (emphasis added).) Plaintiffs complain that the Corps incorrectly concluded that the Project area did not include the critical habitat of the piping plover, and therefore, it failed to make a convincing case that no significant impact might result requiring an EIS. The critical habitat of the piping plover is textually described in the Federal Groin] and Register extends as \\ starting south of Gould's Threatened Wildlife and Plants; Habitat for Wintering Piping just south Inlet. of the // [Southern Endangered & Final Determination of Critical Plovers, 66 Fed. Reg. 36,038-01, 36,099 (Jul. 1, 2001). Noting that distances and areas listed in the are Federal Register Defendants counter that the Southern Groin is too approximated, see id. at 36,086, designation of "just south" of the unspecific to place critical habitat within the Project area. 31 the piping plover's Moreover, Defendants point out that the Project Area is not suitable for the piping plover because it is close to a beach access point with high levels of disturbance; it has little to no beach above the high tide mark; and the narrow beach is backed by high vegetation-covered dune, which is less favorable to the piping plover who prefer more open beaches. (AR at 3492-3493.) found that the piping plover In recognition of this, the Corps prefers the northern and southern ends of inhabited islands, and thus, their use of the Project area is low. Moreover, the Corps analyzed the potential impact of the Project upon the critical habitat of the piping plover north and south of the Project area and determined in sum that the impact would not be significant because the Project would not increase the erosion of the Spit in a measurable amount. Thus, in consideration of the Corps' findings in the MFR as outlined here. identified the the Court relevant plover's habitat, took a concludes that environmental the Corps concern of accurately the piping hard look // at the problem in preparing the EA, and made a convincing case that the adverse impact upon their critical habitat on Sea Island was not significant. The Corps' decision in this regard was not arbitrary and capricious. b. Pelagic Eggs and Larvae of Managed Species With regard to sea turtles and their eggs and hatchlings, the Corps made the following determinations in the MFR. The Corps observed that the current area between the proposed groin and the 32 Southern Groin experiences erosion that limits the available beach for turtle nesting. Thus, the creation of a dune field in this area through the proposed Project, as well as repair to the dune field between the existing groins, would add dry sand beach for turtle nesting. (MFR, AR at 266-267.) It also pointed out that the Sea Island Sea Turtle Program, operated through the Georgia Department of Natural Resources, Wildlife Resources Division, has an established protocol to patrol the island during nesting season and hatchling season and to relocate sea turtle nests that are Thus, the subject to inundation by the tide to dry sand beach. chance of a sea turtle hatchling becoming trapped or preyed upon at the groin would be minimal. (Id.) Finally, the Corps required work on the Project to be performed outside of sea turtle nesting season. (Id.) Plaintiffs concern that contend that the Corps ignored NMFS's the close spacing of the proposed groin stated with the existing groin may create a trap for pelagic eggs and larvae of managed species and their prey. This assertion, however, is n (NMFS Ltr. of Apr. 20, 2018.) belied by the record. The Corps addressed the concern but concluded it was not significant because the footprint of the project was small and there was ample habitat located both upstream and downstream for relocation. of Jul. 17, 2018.) (Corps Ltr. Here, Plaintiffs focus on the fact that NMFS did not think the Corps' response was adequate or complete. 33 (See NMFS Ltr. of Jul. 27, 2018.) In Plaintiffs' estimation, the fact that NMFS had unaddressed concerns requires Corps did not make a finding that the a convincing case of no significant impact. The Corps, however, is not bound to follow the recommendations of NMFS. It is only required to show that it fully considered and addressed NMFS's concerns. Upon outlined consideration here, the of Court the Corps' concludes findings that the in Corps the MFR as accurately identified the relevant environmental concern of the effect on sea turtles, took a "hard look" at the problem in preparing the EA, and made a convincing case that the adverse impact upon the sea turtles was not significant. The Corps' decision in this regard was not arbitrary and capricious. In their NEPA claim. Plaintiffs contend that the Corps failed to make a convincing case that no significant environmental impacts might result. to their Thus, an EIS was required. arguments conclusive that analysis their that experts Here, Plaintiffs return provided demonstrated the convincing Project and would significantly increase erosion on the Spit and would harm federally protected wildlife. Plaintiffs also point to the uniqueness of Sea Island as a habitat for over ten threatened and endangered species. Plaintiffs complain that the Corps simply rubber-stamped Sea Island Acquisition's experts' opinions to the contrary. Or, at the very least. Plaintiffs' experts created enough debate or 34 conflict that the Corps should have found significant impact might result. In considering whether an EIS is warranted, the Court must assess the Corps' FONSI determination. A FONSI determination must be supported by a statement of reasons and evidence, not merely conclusions. Corps took As discussed above, the Court has found that the a "hard look" at the environmental impacts of the Project and supported their finding of no significant impact by expert testimony and evidence as well as their own analysis of the same. It must be expert opinions conflict over noted upon the that much which they of rely environmental Plaintiffs' to impacts create evidence the pre-dates and debate the or amended application which called for the nourishment of 17,000 linear feet of beach. this into The Corps' assessment of environmental impacts takes account. In reviewing its assessment, the Court is reminded that a FONSI determination \\ implicates substantial agency expertise // and is entitled to deference. See Marsh, 490 U.S. at 376; see also Fund for Animals, Inc., 85 F.3d at 547 ( agency has made requirements, the a decision subject only role for a to NEPA's \\ \ [0]nce an procedural court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive. t // (quoting Stryker's Bay Neighborhood Council, Inc, v. Karlen, 444 U.S. 223, 227 (1979))). Giving appropriate deference to the Corps' 35 expertise and in light of the Corps' reasoned analysis of the environmental impacts, the Court cannot conclude that the Corps' determination that there are no significant environmental impacts is arbitrary and capricious. In sum, the Corps took the requisite hard look at the Project and its Environmental Assessment supported the Corps' issuance of a FONSI. Accordingly, an EIS was not evaluate the necessary. B. C-umulative Impacts Both the CWA and NEPA cumulative effects of a C.A.R.E. Now, Inc, v. require the to Corps See project before granting a permit. FAA, 844 F.2d 1569, 1574 (ll^h cir. 1988) ("NEPA requires that a federal agency examine not only the impact directly effects \\ attributable of that cumulative to one project, project.") effects on the 40 but C.F.R. aquatic § also the cumulative 230.11(g) ecosystem rr as (listing a factual determination that must be made regarding any proposed discharge under the Clean Water Act). Cumulative effects are defined to be the impact on the environment which results 'from the incremental impact of the action when added to other past, present, and reasonably foreseeable further actions regardless of what agency (federal actions. r or rr non-federal) or person undertakes such other C.A.R.E. Now, 844 F.2d at 1574 (quoting 40 C.F.R. § 1508.7) . 36 Plaintiffs impacts of contend other that existing the and Corps failed reasonably to consider anticipated the shoreline stabilization or nourishment projects in the coastal region. In this regard, Plaintiffs argue that the Corps should have expanded its geographic scope in its analysis of the Project's effect on the environment. In the MFR, the Corps explained that the geographic scope of its assessment included the entire shoreline of Sea Island, portions of Gould's Inlet and the Hampton River, and portions of the adjacent island of St. Simon's Island (including East Beach), as well as the ocean waters and seafloor offshore of the borrow site. (MFR, AR at 289.) The Corps identified three major areas of concern including water quality, aquatic organisms and wildlife. and the sand-sharing system. (Id. at 290-292.) Finally, the Corps examined changes to the area from 1980 through 2023 and the impacts from past beach nourishment projects and the existing groins. at 289.) In doing so, the Corps determined that the (Id. incremental contribution" from the Project "in relation to the overall impacts // from past, present, and reasonably foreseeable future activities is not significant. found that any cumulatively, potential would aquatic organisms because of the (Id. at 293.) be and impact, minimal with wildlife, short-term More specifically, the Corps and 37 and both individually respect the localized to water quality. sand-sharing nature of and system sediment suspension effects attributable to sand dredging and placement, the shorter new groin and design, and the imposition of monitoring requirements. (Id. at 290-294; see also Order of Dec. 10, 2018, at 21-26.) Agencies must be given deference in how they define the appropriate geographic scope of a cumulative impact analysis. See Ga. River Network v. U.S. Army Corps of Eng'rs, 334 F. Supp. 2d 1329, 1343 (N.D. Ga. 2003) ("Identification of the geographic area for an environmental assessment 'is a task assigned to the special / n competency of the appropriate agencies. (quoting Kleppe v. In this case, the Court Sierra Club, 427 U.S. 390, 414 (1976))). has already determined that the Corps examined, considered, and supported its findings respecting the environmental impacts of the Project. These findings reveal that the Corps went outside the Project area to consider the environmental impacts to Sea Island as a whole. It is also apparent that the Corps considered how the Project fit into the past, present and future beach nourishment and erosion-control efforts. While Plaintiffs attack the scope of these findings, they do not identify any particular other project. impact or geographical area that the Corps should have considered. In short. demonstrate Plaintiffs that the have Corps' failed to carry cumulative arbitrary or capricious. 38 their impacts burden analysis to was C. Practicable Alternatives The CWA mandates that a discharge permit may not be issued if there is a less environmentally damaging practicable alternative. See 40 C.F.R. § 230.10(a). A "practicable alternative // is one that \\ IS available and capable of being done after taking into consideration cost, existing technology, and logistics in light of tf 40 C.F.R. § 230.10(a)(2). the overall project purposes. At the preliminary injunction phase and at summary judgment. Plaintiffs focus on the testimony of Dr. Webb and Dr. Young, who testified that beach nourishment without a groin is a less damaging practicable Plaintiffs alternative complain that to beach the nourishment Corps ff \\ summarily with a groin. dismissed this alternative without any analysis. (Pis.' Mot. for Summ. J., Doc. 68, at 16 (emphasis in original).) As previously explained by the Court, this alternative was thoroughly analyzed in Sections 4.0 and 5.0 of the MFR. (See Order of Dec. 10, 2018, at 8-11.) In fact, the Corps analyzed three alternatives that involved beach nourishment without the proposed groin. As to On-Site Alternative 6 beach nourishment from the existing Southern Groin to the proximal end of the Spit - the Corps found it to be outside the scope of the Project because it would not meet the overall Project purpose to protect upland lots and development located along the shoreline of Sea Island from storm damage. (MFR, AR at 258.) Moreover, there is no development nor 39 potential for development in the upland property that is bounded by the conversation easement of the Spit; thus, the purpose of the (Id. ) Project is not served in this area. Finally, Dr. Basco testified that the storm protection provided by this alternative (See Order of Dec. 10, 2018, at 8-10.) would only be temporary. The Corps therefore concluded this alternative is not practicable. (MFR, AR at 258.) The Corps also analyzed On-Site Alternatives 4 & 5, which both involved beach nourishment without adding the proposed groin. On-Site Alternative 4 consisted of relocating the existing Southern Groin to the site of the proposed groin and renourishing the beach. (Id. at 257 . ) The Corps found this to be a practicable alternative, but not the least damaging one, 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 n the sand offshore and completely out of the sand[-]sharing system. (Id. at 261.) preferable. Thus, (Id. ) the Southern Groin Corps w found without the this this alternative was not environmentally On-Site Alternative 5 consisted of removing altogether not to [SJouthern be and renourishing the a practicable [G]roin[,] any alternative sand placed shoreline . . . would disseminate downdrift quickly only temporary storm protection. beach. (Id. at 257.) The because along the // and result in Long term, the result is \\ erosion of a portion of the existing storm protection tr 40 and \\ adverse effects to sea turtles through habitat. In N erosion of nesting (Id. at 258.) short, the Corps did analyze Plaintiffs' preferred alternative of beach nourishment without constructing the proposed groin, but it practicable did not alternative find a that less served environmentally the Project's damaging purpose of protecting upland lots from storm damage. In reply. Plaintiffs complain that the Corps failed to conduct an independent analysis of practicable alternatives and instead simply agreed with The Acquisition. practicable submitted the analyses record alternative by Sea shows, analysis Island was Acquisition the applicant. however. broader in that that than Sea the the Island Corps' analysis it evaluated more For instance, the Corps evaluated a alternative possibilities. \\ No Action n of alternative where a bulkhead in the landward/upland portion of the Corps' jurisdiction would be placed and an On-Site Alternative where a nearshore berm would be placed in shallow water just off the beach. Acquisition's (Compare MFR, AR at 255-258 with Sea Island Permit Application, AR at 3487-3488, and Amended Permit Application, AR at 1705-1710.) Based upon the foregoing. Corps did not alternatives failed to adequately are belied establish or by that Plaintiffs' contentions that the independently the record. the 41 Corps analyze Thus, acted practicable Plaintiffs arbitrarily have or capriciously in analyzing "practicable alternatives // to Sea Island Acquisition's proposed plan. Public Access D. Plaintiffs contend that the Corps violated the CWA by failing to consider that the proposed groin would reduce beach access in In particular, Plaintiffs violation of 33 C.F.R. § 320.4(g)(3). claim that the Corps failed to consider the groin's interference with access by foot to the beach in front of the Reserve, i.e.. the beach between the proposed groin and the Southern Groin, especially because beach walkers cannot cross the groin at high tide without trespassing on the groin. Section 320.4(g)(3) states that projects should \\ generally be denied" if they create "undue interference with access to, or use of, navigable 320.4 (g) (3) waters focuses n on for the riparian need for the landowners. agency to n Section consider a riparian landowner's, not the general public's, ability to access the navigable Stated waters. another does not convey unfettered beach way. Section 320.4(g)(3) access to the general public; instead, it only ensures that a permit application decision will secure the \N general public's right of navigation on the water surface. // In interest this case, protected the by Corps Section recognized the 320.4(g)(3) in general finding public's that the Project does not interfere with the unfettered right for any person 42 to land a boat on the beach at Sea Island. (MFR, AR at 240.) Accordingly, the Corps considered access, and its analysis of the same was not arbitrary or capricious. E. Failure to Consult NMFS Plaintiffs22 claim the Corps violated the Endangered Species Act ("ESA") because it failed to consult NMFS as required by Section 7 of the ESA after Sea Island Acquisition expanded the Project to include offshore dredging and beach nourishment. Defendants contend that Plaintiffs' ESA claim is moot, and if it is not moot, the Corps fully complied with the ESA before issuing the Permit. Because the Court concludes that the ESA claim is moot, it need not reach its merits. A claim is moot when \\ events subsequent to the commencement of a lawsuit create a situation in which the court can no longer give the plaintiff meaningful relief . . // Fla. Ass'n of Rehab. 21 Responding to the public's concern about access. Sea Island Acquisition noted that there is no public access to the beach on Sea Island by land. (MFR, AR at 240.) Rather, the public gains access to the beach by approaching by kayak, for example, from a nearby creek or river and landing to walk along the beach. In recognizing that the State of Georgia owns the beach below the mean high water mark. Sea Island Acquisition stated that there would be "no effort to interfere with that use" before or after construction. (Id.) 22 Plaintiff CSC did not include an ESA claim in its operative (See Doc. 60. ) Rather, this claim appears in the complaint. of Plaintiffs ARK, One Hundred Miles and operative complaint Surfrider Foundation. (See Doc. 59, M 152-62.) 43 Facilities, Inc, v. Fla. Dep't of Health & Rehab. Servs., 225 F.3d In other words, when the issues in a 1208, 1217 (11th cir. 2000) . ff case are no longer "live. the case McCormack, 395 U.S. 486, 496 (1969). doctrine is effectively grounded provide issues before it. in the the question relief a is See moot. Powell v. Ultimately, the mootness of whether plaintiff the seeks court based on can the See 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3533.1 (3d ed. 2008). A detour here is necessary to reexamine Plaintiffs' ESA claim against the Corps. Plaintiffs' fifth claim alleges that the Corps violated the ESA and APA by failing to consult with NMFS on the Project. (See Pis.' Sec. Am. Compl., Claim Five.) base their claim inapplicable here. on both the ESA and the While Plaintiffs APA, the APA is See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9^h cir. 2011) ("[T]he APA applies only where there IS 'no other adequate remedy in a court,' 5 U.S.C. § 704, and because the ESA provides a citizen suit remedy the APA does not apply in such actions."); see also Bennett v. Spear, 520 U.S. 154, 161-62 (1997) ("[T]he APA by its terms independently authorizes !// review only when 'there is no other adequate remedy in a court. (quoting 5 U.S.C. § 704)). citizen suit provision is The remedy available under the ESA's injunctive 1540(g) (1) (A) . 44 relief. See 16 U.S.C. § Returning to Plaintiffs' ESA claim as an determined that Defendants' mootness, the frames assertion that the Corps incorrectly offshore dredging and n adequately covered by the 1997 SARBO . . 18. ) argument 23 nourishment was (Doc. 82, at 17- The South Atlantic Regional Biological Opinion, or SARBO, is a document issued by NMFS in response to the Corps' request for consultation pursuant to Section 7 of the ESA. Regional Biological Opinion for Activities available in at the Southeast (See South Atlantic Dredging and Material Placement United States (2020 SARBO) , PDF https://www.fisheries.noaa.gov/content/endangered- species-act-section-7-biological-opinions-southeast (last visited Sept. 25, 2020) (hereinafter. \\ 2020 SARBO").) issued in March of 2020, operates as a The 2020 SARBO, Programmatic Consultation, // or a sort of continuing and preemptive ESA consultation between NMFS and the Corps. Consultation"). 24 See 50 C.F.R. § 402.02 (defining "Programmatic The 2020 SARBO explains the particular 23 risks Defendants also argue that dredging has been completed, making Plaintiffs' claim moot. While substantial dredging has taken place. Plaintiffs note that the Permit approves additional dredging beyond that already completed. Therefore, the claim is not moot on this basis. 24 The relevant portion of Section 402.02 reads: Programmatic consultation is a consultation addressing an agency's multiple actions on a program, region, or other basis. Programmatic consultations allow the Services to consult on the effects of programmatic actions such as: 45 endangered species and their habitats face from the Corps' (and its permittees') activities along the coast of .the southeastern United States. It criteria, which technical and individual \\ also are provides the engineering project must be for specific certain criteria, specifications, sited, project including indicating constructed, design or how the an otherwise carried out . . . to be . . . covered under [the 2020 SARBO]. (2020 SARBO, at 13.) The 2020 SARBO concludes with findings that the actions covered by the 2020 SARBO are the continued existence area. // // \\ not likely to jeopardize of the endangered species in the project (2020 SARBO, at 427.) Apparently, the 1997 SARBO in effect at the time the Corps issued the Permit neither addressed the sort of activities contemplated in the Permit or in the expanded scope of the Project, nor applied to a geographic area encompassing Sea Island. However, the 2020 SARBO considers precisely the sort of activities at issue in this case: dredging, sand mining in borrow sites, and beach (1) Multiple similar, frequently occurring, or routine actions expected to be implemented in particular geographic areas; and (2) A proposed program, plan, policy, or regulation providing a framework for future proposed actions. This definition is a new addition to 50 C.F.R. § 402.02; it was See Endangered and Threatened Wildlife added in August of 2019. and Plants; Regulations for Interagency Cooperation, 84 Fed. Reg. 44,976-01, 45,016 (Aug. 27, 2019). 46 63. ) Defendants ESA claims are therefore moot, as an order nourishment along Georgia's coast. argue that Plaintiffs' from this Court requiring declaring the Corps' (See id at 1, further consultation with with a NMFS number to of have or reliance on the old SARBO insufficient would not amount to "real relief" as required by Article III. rely on NMFS cases mooted where courts challenges found based later on Defendants consultation failure to comply with ESA Section 7. In the cited cases, that the action 25 agency the plaintiffs sought declaratory relief violated the ESA, or injunctive relief requiring the action agency to reinitiate consultation with NMFS. The reasoning of these cases is that a court can only order a new consultation. if during the So, when an action agency consults with NMFS - even pendency of the consultation would be meaningless Silvery Minnow, opinion] , a 601 F.3d at 1112 consultation lawsuit an relief. See, order e. g. , ("[E]ven as to the requiring Rio Grande [new biological injunction would be meaningless because the federal agencies already have consulted.") 25 The cases include: Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1111-12 (10th cir. 2010) ; All, for the Wild Rockies v. U.S. Dep't of Agric. , 772 F.3d 592, 600-01 (9th Cir. 2014) ; Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759, 765 (8th Cir. 2004) ; Sierra Club v. Van Antwerp, 526 F.3d 1353, 1359 (11th Cir. 2008) ; Defs. of Wildlife v. U.S. Dep't of Navy, 895 F. Supp. 2d 1285, 1311 & n.24 (S.D. Ga. 2012) ; Defs. of Wildlife V. Bureau of Ocean Energy Mqmt. , Regul. & Enf't, 791 F. Supp. 2d 1158, 1170 (S.D. Ala. 2011) . 47 None of the cases the parties cite dealt with Programmatic Consultations, and the Court was unable to locate any case considering mootness with respect to Programmatic Consultations. That said, there is no reason the rationale of the cited cases Any order requiring the Corps to consult should not apply here. NMFS again would be pointless because the 2020 SARBO exists as an ongoing consultation activities in the between the Corps To Permit. the NMFS and extent about the Plaintiffs are dissatisfied with the 2020 SARBO's substantive conclusions, such a challenge would have to be made against NMFS and not the Corps. Because the Corps consulted with NMFS via the 2020 SARBO and even a late consultation satisfies ESA Section 7's mandate. Plaintiffs' ESA claim is moot, and summary judgment in Defendants' favor on this claim is appropriate. F. 2019 Permit Violations Plaintiffs claim that the Corps violated the CWA and the APA in essentially sanctioning Sea Island Acquisition's violations of the Permit as discovered by Plaintiff CSC in 2019. Sea Island Acquisition violated the Section 404 Specifically, Permit by; (1) building the groin longer than authorized; (2) building the dune larger than authorized; (3) placing dredged sand outside of the permitted project area, landward 26 of the new groin cell^S; (4) The new groin cell refers to the area between the existing Southern Groin and the proposed new groin, i.e., the area known as the Reserve. 48 dredging in unauthorized locations and depths; and (5) failing to fill the new On April 24, 2019, groin cell area to capacity. Plaintiff CSC sent a Notice of Intent to Sue letter to Sea Island Acquisition. (NOI Ltr., AR at 5174-5192.) In response. Sea Island Acquisition requested a permit modification pursuant to 33 C.F.R. § 325.7(b) . 27 The federal regulations provide for the modification. 33 C.F.R. § 325.7. suspension or revocation of Corps permits. Under this regulation, the Corps, through its district engineer. \\ may reevaluate the circumstances and conditions of any permit . on [its] own motion [or] at the request of the permittee . . . and initiate action to modify . . . a permit as may be made ft necessary by considerations of the public interest. 325.7(a) . However, if the modification would 33 C.F.R. § significantly increase the scope of the permitted activity, it will be processed as a new application under 33 C.F.R. § 325.'2. Id. Factors to be considered by the [Corps] in reevaluation of a permit include \\ the extent of the permittee's compliance with the terms and conditions of the permit; whether or not circumstances relating to the authorized activity have changed since the permit was issued or extended . suspension, and r or other the action extent would 27 to adversely The request for permit modification Administrative Record, AR at 5055-5146. 49 which modification. affect appears plans. in the investments and actions the permittee has reasonably made or taken "28 in reliance on the permit. Id. In considering a modification request, the Corps shall hold informal consultations with the permittee to ascertain whether rr the terms and conditions can Id. § 325.7(b). be modified by mutual agreement. If mutual agreement is reached, the modification will become effective on a date set by the Corps. the Corps any \\ permit impacts[] Furthermore, shall consult with resource agencies before modifying terms for significant Id. a or conditions[] project interest in about the that which term, modified prior to permit issuance. 28 // would that result agency condition, or in greater expressed feature a being Id. Defendants argue that the Corps was not required to consider these public interest factors because Sea Island Acquisition requested a modification under § 325.7(b), which does not contain these factors. (Fed. Defs.' Opp'n to Mot. for Summ. J., Doc. 81, at 42-43 (citing La. Crawfish Producers Ass'n W. v. Mallard Basin Inc., 2019 WL 171693 (W.D. La. Jan. 10, 2019)). The Court, however, views subsection (b) as an offshoot of subsection (a), the procedural mechanism by which modifications (whether by request or Corps reevaluation) are to be processed. Indeed, subsection (a) refers to modification requests of permittees and then requires that "[s]ignificant increases in scope of a permitted activity" will be treated as new applications and "not as modifications under this section." 33 C.F.R. § 325.7(a) . That said, the procedural mechanism for modifications'does not require any rigid or express "check-the-box" consideration of these factors. Rather, Section 325.7 requires the Corps' consideration of the public interest taking into account the listed factors. 50 In this case, Sea Island Acquisition requested modifications of the Permit. The Corps evaluated Sea Island Acquisition's responses to the alleged violations and found that in some respects Sea Island Acquisition had violated the Permit, but the Corps also found Sea Island Acquisition's responses Through reasonable. mutual agreement, the Corps granted the requested modifications to accommodate the violations. Sea Island Acquisition's In essence, the Corps determined that requested modifications were not (See significant enough to warrant a new application procedure. generally MFR for Permit Modification, AR at 4639-4647.) Plaintiffs first take issue with the Corps' failure to consult with NMFS, an agency that had expressed a significant interest in the scope of the groin Project, not be particularly built because recommending of its that impact on the proposed new sea turtles. However, the MFR for the Permit modification demonstrates that the Corps considered the impact of the modifications on sea turtles and found no greater impact. (See id. at 4642.) the Corps' obligation NMFS on to consult request was not triggered. with the Thus, modification Moreover, further consultation with NMFS was unnecessary given the Project is subject to the mitigation requirements set forth in the 2020 SARBO, discussed 51 supra. In short, the decision not to consult NMFS about the requests was not arbitrary or capricious. Second, in referring as modification requests Acquisition's violations, to the \\ 29 Corps' handling rubber-stamping Plaintiffs modification // challenge Sea the of the Island Corps' determination that the modifications are not significant enough to warrant a new application procedure. great discretion. Section 325.7 gives the Corps In fact, it allows the Corps to modify' a permit in an abbreviated, informal manner. Mo. Coal, for the Env't v. Corps of Eng'rs of the U.S. Army, 678 F. Supp. 790, 799 (E.D. Miss. 1988) (holding that "the Corps' reevaluation regulation has no procedural mandates [] and vests broad discretion in [the Corps] to handle each proceeding as [it] sees fit"), aff'd, 866 F.2d 1025 (8th Cir. 1989), abrogated on other grounds by Goos v. Interstate Com. Comm'n, 911 F.2d 1283 (8th Cir. 1990); see also City of 29 It is noteworthy that the Corps did consult with USFWS because the revised tilling and planting requirements for the nourished dunes and the request to use Reach C as an additional borrow area could potentially affect sea turtle nesting and shorebird habitat. (AR at 4653-54.) On June 21, 2019, USFWS stated that it had no objection to the Permit modification and the it would not change Its concurrence with the Corps' ESA determination. (AR at 4650.) Moreover, NMFS's primary area of concern was the proposed groin. It is undisputed that Sea Island Acquisition extended the length of the proposed groin but it is also undisputed that the extension was landward and buried under the nourished beach and constructed dune system, so that it would "tie-in" with the shoreline. Thus, it would have no impact on NMFS's stated concerns with the proposed new groin. Besides, the Corps removed the "tiein" extension, mooting any potential impact resulting therefrom. 52 Olmstead Falls v. U.S. EPA, 233 F. Supp. 2d 890, 905 (N.D. Ohio 2002) (describing discretionary"). deferential that the language \\ as 325.7 obvious[ly] Given this obvious discretion and the Court's standard of review, Plaintiffs' Corps' inferred finding that the significant enough to warrant a new obligation modification application to was show not procedure is a Here, despite Sea Island Acquisition's non-compliance. heavy one. that the proposed modifications [did] not the Corps determined change § of the 404(b)(1) determinations analysis or made in cumulative the Public impacts Interest assessment rf during the evaluation of the original permit. Review, performed (MFR, AR at 4646.) Based on the record with particular attention paid to the MFR for the Permit modifications. the Court does not find the Corps' decision to grant the requested modifications to be arbitrary and capricious. G. Public Hearings Plaintiffs argue that the Corps violated the procedural requirements of the CWA by failing to provide any public hearings on the Project prior to issuance of the Permit. provides that a permit may be issued for public hearings. // \\ While the CWA after notice and opportunity 33 U.S.C. § 1344(a), the statute does not mandate that the Corps itself hold its own public hearings. Fund for Animals, Inc., 85 F.3d at 545. Instead, \\ [t]he applicable regulations provide the Corps discretion to hold hearings on permit 53 applications Thus, 327.4) . hearing if application [holding] In hearing on an 'as the it is Corps a hearing. case, under Plaintiffs' has unnecessary there and this needed' is f rr Id. the state 'no basis. rr Id (citing discretion not to decision make valid a interest (citing 33 C.F.R. Project was to subject 33 C.F.R. hold to § a public on , a permit be served by § 327.4(b) ) . to an The regulatory proceedings. administrative testimony from experts was submitted to the Corps and included in the Administrative Record. (See AR at 3706-4065. ) Further, the Corps received 233 comments by 202 different individuals or entities in response to the Permit application (see AR at 543-547) , including several technical experts who provided scientific analysis of Sea Island Acquisition's technical Greenleaf) . issues and The comments concerns. made The reports the Corps (see, Corps e.g. , aware evaluated cite SELC and of the the public's comments and requested additional information from Sea Island Acquisition based on the concerns raised. Of the 202 commenters. only (AR at 2684-2692. ) public hearing. 9 requested However, the Corps hold a the Corps determined that no commenter provided specific information as to why a public hearing would be necessary present information the Corps already requested from Sea Thus, or would did provide not an already Island Acquisition. opportunity have or (AR at had to not 543-547. ) a public hearing was unlikely to generate new information. 54 Accordingly, the Corps determined that no valid interest would be served by holding a public hearing on the proposed Project. Given the comments, amount Sea administrative of Island information the Acquisition's hearing. the Corps received responses Court finds the from the and the not act thereto, Corps (Id. ) did arbitrarily or capriciously in exercising its discretion to forego holding a public hearing prior to the issuance of the Permit. Plaintiffs also contend that the Corps should have issued public notice for the opportunity to comment and held a hearing prior to authorizing the modification of the Permit in 2019. discussed above. Sea Island Acquisition requested modification pursuant to 33 C.F.R. § 325.7(b). a As permit This regulation does not provide for public notice, comment, or a hearing. In this case, the Corps determined Sea Island Acquisition's request for modification was in the public interest, the Corps and Sea Island Acquisition were able to reach a mutual agreement on the terms of the modification, and the Corps authorized various modifications to the Permit. The Court has concluded that the Corps' determination that the modifications did not significantly increase the scope of the permitted activity (so as to require a new application procedure) was not arbitrary nor capricious. Thus, the Corps was not subject to the public notice requirements of 33 C.F.R. § 325.2 for the Permit modifications. 55 VI. Upon the foregoing, CONCLUSION and having afforded the Federal Defendants the substantial deference that is required under the APA, the Court GRANTS their cross motion for summary judgment (doc. Concomitantly, the Court GRANTS 81) on all of Plaintiffs' claims. the cross motion for Acquisition (doc. 82). filed summary judgment filed by Sea Island Finally, the motions for summary judgment by Plaintiffs (docs. 68 & 70) are DENIED. The Clerk is directed to ENTER JUDGMENT against Plaintiffs and CLOSE this case. ORDER ENTERED at Augusta, Georgia, this day September, 2020. JUDGE UNITED STATES DISTRICT COURT SO^HERN DISTRICT OF GEORGIA 56 of

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.