SOSS2, Inc. v. U.S. Army Corps of Eng'rs

491 F.Supp.3d 1231

SOSS2, INC., Plaintiff,

v.UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.

Case No. 8:19-cv-462-T-23JSS

United States District Court, M.D. Florida, Tampa Division.

Signed September 30, 2020

Jane West, Jane West Law, St. Augustine, FL, for Plaintiff.

Mark Arthur Brown, Jacqueline Leonard, Leslie Marie Hill, US Department of Justice, Washington, DC, for Defendant.

ORDER

STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE

Arguing the U.S. Army Corps of Engineers violates federal environmental law and the Administrative Procedure Act by approving a "beach nourishment" project that demands the removal of sand from Big Sarasota Pass, among other sources, Save Our Siesta Sands, Inc., (SOSS2) moves (Doc. 34) for summary judgment. The Corps opposes and moves (Doc. 37) for summary judgment.

BACKGROUND

Despite the Corps's and the City of Sarasota's prevention efforts, Lido Key's shoreline continues to erode. (AR at 12745, 23749) In 2018, the Corps and the City of Sarasota proposed a "beach nourishment" and "groins" construction project to strengthen the shoreline. (AR at 23844–45) The project entails dredging and borrowing sand from area "ebb shoals," including within Big Sarasota Pass, a navigation channel south of Lido Key. (AR at 23749–50, 23845) Parts of the channel and surrounding water, including the sand "borrow areas" necessary for the project, fall within "Outstanding Florida Waters," which require "special protection" because of natural attributes. (AR at 23948, 23972; Fla. Stat. § 403.061(28) ) These natural attributes include threatened or endangered species, fragile breeding grounds, and sprawling marine ecosystems. (AR at 23770–88) The channel and surrounding water enable navigation and recreation and strengthen the local economy. (AR at 23780–89)

Under the National Environmental Policy Act (NEPA), Pub. L. 91-190, the Corps analyzed the affected area and considered the environmental consequences of both the proposed project and alternative projects. Specifically, the Corps prepared an environmental assessment to "determine whether the action to be taken constitutes a ‘major federal action’ — that is, an action ‘significantly affecting the quality of the human environment,’ " including the natural attributes. Sierra Club v. Van Antwerp , 526 F.3d 1353, 1360 (11th Cir. 2008) (quoting 42 U.S.C. § 4332(C) ). The Corps's environmental assessment concluded with a "finding of no significant impact" on the human environment. (AR at 23740) The finding relieves the agency of the need to prepare an Environmental Impact Study (EIS), which requires a "full and fair discussion of significant environmental impacts." Sierra Club v. U.S. Army Corps of Engineers , 295 F.3d 1209, 1215 (11th Cir. 2002) (citing 40 C.F.R. § 1502.1 ).

SOSS2 argues the Corps's environmental assessment and finding insufficiently addresses the project's full environmental effect. According to SOSS2, by basing the finding on allegedly inadequate and incomplete information, the Corps violates NEPA; the Clean Water Act (CWA), Pub. L. 92-500 ; the Endangered Species Act (ESA), Pub. L. 95-205 ; and the Marine Mammal Protection Act (MMPA), Pub. L. 92-522. Ultimately, SOSS2 challenges the Corps's decision to select Big Sarasota Pass as a source for the beach nourishment project because "in failing to create an adequate [Environmental Assessment/Finding of No Significant Impact], the Corps failed to prepare an EIS analyzing the significant adverse impacts of the authorized activities." (Doc. 34 at 21) SOSS2 suggests a correctly prepared environmental assessment and EIS would support a different conclusion about the proper sand sources for the project.

DISCUSSION

SOSS2 raises claims governed by the Administrative Procedure Act.¹ Under the Act, the Corps's actions must prevail unless the agency acts arbitrarily, capriciously, in abuse of discretion, or otherwise not in accord with law. 5 U.S.C. §§ 702, 706. "This standard is exceedingly deferential." Fund for Animals, Inc. v. Rice , 85 F.3d 535, 541 (11th Cir. 1996). A review of the Corps's decisions must ensure "that the agency came to a rational conclusion, ‘not to conduct its own investigation and substitute its own judgment for the administrative agency's decision.’ " Sierra Club v. Van Antwerp , 526 F.3d at 1360 (11th Cir. 2008) (citing Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs , 87 F.3d 1242, 1246 (11th Cir. 1996) ). The administrative record must evidence a rational connection between the facts and the agency's conclusions, with substantial deference to the agency's technical and scientific determinations. Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc. , 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). The administrative record confirms that the Corps comes to rational conclusions and complies with federal environmental law. Sierra Club v. U.S. Army Corps of Engineers , 295 F.3d 1209, 1216 (11th Cir. 2002) (finding that a court has the duty "to consider not only the final documents prepared by the agency, but also the entire administrative record").

1. The Corps follows NEPA with a "hard look" at the project's effect

"The object of NEPA is to require federal agencies to consider environmental values [and] the initial responsibility of the federal agency is to determine the extent of the environmental impact" for a project. Hill v. Boy , 144 F.3d 1446, 1449 (11th Cir. 1998). To determine a project's environmental effect, an agency first prepares an environmental assessment providing "sufficient evidence and analysis" informing the agency if additional study of environmental consequences is necessary before beginning a project. 40 C.F.R. § 1500.3, 1508.9(a)(1) ; Hill , 144 F.3d at 1450. Regulation informs an agency's evaluation of the significance of environmental effects, including "ecological, aesthetic, historic, cultural, economic, social, or health, whether direct, indirect or cumulative." 40 C.F.R. §§ 1508.08, 1508.27. After evaluating these potential effects, "an agency will reach one of two conclusions in an [environmental assessment]: ‘either that the project requires the preparation of an EIS to detail its environmental impact, or that project will have no significant impact [on the environment],’ " a conclusion that relieves the agency of additional study. Hill , 144 F.3d at 1450.

An agency's decision not to prepare an EIS after finding no significant impact on the environment must meet four criteria:

First, the agency must have accurately identified the relevant environmental concern. Second, once the agency has identified the problem it must have taken a "hard look" at the problem in preparing the [Environmental Assessment]. Third, if a finding of no significant impact is made, the agency must be able to make a convincing case for its finding. Last, if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum.

Hill , 144 F.3d at 1450. For the first criterion, the Corps describes the environment and the project's effect across environmental categories. (AR at 23770–807) (forming the "baseline conditions" to evaluate the project's effect); St. Johns Riverkeeper, Inc. v. United States Army Corps of Engineers , 462 F.Supp.3d 1256, 1274-79 (M.D. Fla. 2020) (describing the analysis of an suitable baseline as constituting the environmental concern). The parties mainly dispute whether the Corps took a "hard look" at the environmental concern. SOSS2 alleges the environmental assessment ignores "the full extent" of the project and draws conclusions based on incomplete or outdated information. (Doc. 34 at 14–21)

An agency satisfies the "hard look" standard by "examin[ing] the relevant data and articulat[ing] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ " Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citing Burlington Truck Lines v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ). An agency fails this standard, and acts arbitrarily and capriciously, by overlooking an important aspect of a relevant problem, offering an explanation counter to the evidence, ignoring controlling regulations and authority, or reaching an "implausible" decision. Motor Vehicle Mfrs. , 463 U.S. at 43, 103 S.Ct. 2856. More than 25,000 pages of the administrative record, including the roughly 900-page environmental assessment and finding, substantiate the Corps's extensive examination of the project's effect. SOSS2's allegations to the contrary rest on speculation and conclusory, inaccurate allegations.²

For example, SOSS2 alleges the environmental assessment "fails to include any baseline information about how this [p]roject would impact the hydro-ecology and local economy." (Doc 34 at 15) But the biological opinion incorporated by the environmental assessment analyzes the environmental and species baseline for the pertinent area (AR at 23888–99), including baseline human effects on the environment. (AR at 23894) SOSS2 finds the biological opinion deficient because the Corps allegedly ignores the "adverse impacts of [pollutant] periodic discharges," among other subjects. (Doc 34 at 15–16) However, an agency can survive "hard look" review even if the analysis unequally addresses certain topics. The Administrative Procedure Act substantially defers to an agency about "what evidence to find credible" and "drafting decisions like how much discussion to include on each topic, and how much data is necessary to fully address each issue."³ Sierra Club v. Van Antwerp , 526 F.3d 1353, 1361 (11th Cir. 2008). Despite this flexibility, the Corps develops an acceptable, detailed environmental baseline that addresses SOSS2's arguments. (AR at...