Nov 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5284 consolidated with 10–5297, 10-5345. Appealed from the United States District Court for the District of Columbia.
The Appeals Court explained that in 2007 the U.S. Army Corps of Engineers issued a permit authorizing the discharge of dredge and fill material into specified wetlands outside Tampa, Florida; it thereby enabled construction of a large mall. A number of firms are involved on the permittee's side in these appeals, but they are being referred to as CCTC, standing for Cypress Creek Town Center. Three environmental groups (collectively referred to as the Sierra Club) brought suit in district court to challenge issuance of the permit. The suit also names the heads of the Department of the Interior and the U.S. Fish and Wildlife Service as well, but are being considered collectively as the Corps. Plaintiffs invoked three statutes: the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the Endangered Species Act (ESA).
The district court issued a decision finding that the Corps had not fully complied with its obligations under NEPA and the CWA, but rejected the plaintiffs' ESA claim. It granted summary judgment for the Sierra Club on the first two claims and for the Corps on the third. CCTC and the Corps appealed, and the Sierra Club crossappealed.
In summary, the Appeals Court indicates, "We affirm in part, reverse in part, and remand, concluding that the Corps did satisfy the demands of the three relevant statutes, except for failing to respond, in its treatment of the NEPA and ESA requirements, to a material contention as to the project's impact on an endangered species, the eastern indigo snake." Clarifying further in its conclusion the Appeals Court said, "Our decision here of course substantially alters the substantive merits outcome that underlay the district court's injunction. Accordingly it will be suitable on remand for the court to entertain contentions relating to modification of that injunction. In short, we reverse the district court entirely as to the CWA; reverse it as to NEPA except insofar as the court required further explanation by the Corps as to potential fragmentation of the indigo snake's habitat; and affirm its decision as to the ESA except in so far as it found the Corps's analysis of the indigo snake issue adequate."
Regarding the indigo snake, the Appeals Court said, "In both ESA and NEPA contexts, we reject the Sierra Club's wood stork claim but find that the Corps failed to adequately address indications of an adverse effect on the indigo snake. . . we must remand for further explanation by the Corps of its determination that the project was 'not likely to adversely affect' the indigo snake. We do not reach the issue of whether formal consultation is required, but the Corps must make some determination on the issue of habitat fragmentation, both for ESA and NEPA purposes. . ."
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