Opinion is here
Corps didn’t properly review Fla. mall’s effects: D.C. Cir. (from page 1)
The Army Corps of Engineers should have looked more closely at the expected impact on the threatened Eastern indigo snake from construction of a large shopping mall, the D.C. Circuit Court of Appeals has ruled (Sierra Club v. Van Antwerp, 10-5284).
The currently dormant Cypress Creek Town Center project, located outside Tampa, would result in displacement of more than 50 acres of wetlands, including habitat for the snake and the endangered wood stork.
In its Nov. 29 decision, the circuit court essentially did the opposite of U.S. District Judge Royce Lamberth, who had issued a scathing opinion finding against the Corps on the plaintiffs’ NEPA and Clean Water Act claims (Sierra Club v. Van Antwerp, 719 F.Supp.2d 58 (D.D.C. 2010) (07-1756 RCL).
Instead, Circuit Judges Stephen Williams, Brett Kavanaugh and Merrick Garland upheld the Corps’ evaluation of alternatives as required by Section 404 under the CWA. The proposed mitigation is enough to compensate for the loss of the wetlands, which lack “uniqueness,” the court said, using the Corps’ word.
The plaintiffs had argued that the court should be skeptical about the value of wetlands creation as mitigation, given its often lackluster results. But the court said “the ultimate CCTC plan called for creation and preservation of substantial substitute wetlands, the sort of mitigation measures that we have found ‘sufficiently reduce the impact to a minimum.’ Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008) (quoting TOMAC, 433 F.3d at 861).”
The court had no problem with the Corps’ acceptance of the developer’s reason for having more parking spaces than nearby malls, because there are more restaurants.
“[B]oth sides agree that CCTC’s parking ratio exceeds that of nearby malls,” the court said. “But CCTC defends its above-average ratio by pointing to the above-average proportion of restaurants in its project. While the Sierra Club does not contest the restaurant-parking link, it argues that there is no reason for so many restaurants. CCTC, in turn, seeks to justify the high proportion by saying that it aims to create more than a traditional mall. Whereas traditional malls use 4.8 percent of their square footage for restaurants, ‘lifestyle centers’ use 11.3 percent; CCTC, a self-described ‘town center,’ is between these two figures at 8.08 percent.”
“The Corps’ acceptance of CCTC’s parking ratio was not arbitrary or capricious in light of the practicability regulations,” which require the Corps to evaluate whether alternatives are practicable “in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). The regulations provide that “it will generally be assumed that appropriate economic evaluations have been completed, the proposal is economically viable, and is needed in the market place.”
The Corps also properly concluded that the impacts to the wood stork were not significant enough to warrant formal consultation, the court said. “[T]he Corps’ conclusions rested on the project’s mitigation measures, which will bring about a net gain of wood stork foraging habitat.”
Sierra Club, however, contended in its opening brief that the government did not “address near term adverse impacts on breeding colonies while off-site mitigation is being implemented.”
“Given the relatively marginal role of the lost habitat, it does not seem arbitrary or in contravention of its statutory mandate for the Corps to find that the mitigation’s more than ‘one-to-one replacement ratio’ made up for the temporary deprivation.” The court concluded.
Snake needed more scrutiny, court says
However, “[i]n both ESA and NEPA contexts, we . . . find that the Corps failed to adequately address indications of an adverse effect on the indigo snake.”
In both of its findings of no significant impact, the Corps did not address possible the fragmentation of snake habitat. The second time, it was after submission of a declaration by Dr. Kenneth Dodd, who as Staff Herpetologist for FWS’s Office of Endangered Species had written the rule listing the snake as threatened. Dodd said “the project site was an important ‘wildlife corridor’ linking protected areas to the north and south, [and] noted that ‘movements over large areas of fragmented habitats expose Eastern Indigo Snakes to increased road mortality,’ and that ‘the more edge there is in relation to protected habitat [i.e., ratio of perimeter to surface area], the less likely large snakes can be maintained.’ ”
Nevertheless, “In its second FONSI, issued in August 2009, the Corps again did not address the impacts of habitat fragmentation.”
Said the court: “Given Dr. Dodd’s expertise and experience, and the seeming logic of his analysis, as well as CCTC’s own acknowledgment of the snake’s vulnerability to fragmentation risk, we think his comment qualifies as the sort of ‘relevant and significant’ public comment to which an agency must respond, lest its action be arbitrary and capricious. See Cape Cod Hospital v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011). Accordingly, 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.”
