WETLANDS:

Court issues mixed ruling on Fla. permitting decision

A federal appeals court today rejected nearly all the claims environmentalists had made against an Army Corps of Engineers decision to issue a permit for a major development in Florida wetlands.

Although the U.S. Court of Appeals for the District of Columbia Circuit held that the corps must do further research on whether construction of the Cypress Creek Town Center near Tampa would damage habitat of the indigo snake, environmentalists lost on all the other issues in the case.

The court, in an opinion written by Senior Judge Stephen Williams, rejected contentions that the corps had violated the Clean Water Act by failing to take into account declining property values at the time it re-evaluated its original permit in 2009 and by accepting the developer's suggestions for the number of required parking spaces.

The three-judge panel also ruled that the corps was not required to issue an environmental impact statement under the National Environmental Policy Act.

The ruling adds a new twist to the conflict between environmental groups, including the Sierra Club, and the corps over its approval of a wetlands permit for the proposed 500-acre sprawling multiplex of 1.3 million square feet of retail space atop 155 acres of wetlands.

The appeals court decision differed substantially from the lower court ruling by U.S. District Judge Royce Lamberth of the District of Columbia, who openly criticized the Army Corps in his July 2010 ruling in favor of the Sierra Club (Greenwire, July 2, 2010).

The Sierra Club's sole victory on appeals was over the indigo snake, which is listed as a threatened species by both federal and state agencies. Further consultation was required under the National Environmental Policy Act over whether the development would have an adverse affect on habitat, Williams wrote.

Most pertinently, the agency did not respond to a public comment made by a herpetologist who said that the development could lead to fragmentation of the habitat and that the site was an important "wildlife corridor."

Sierra Club’s lawyer, Eric Glitzenstein, said today the indigo snake issue "is extremely important to the survival of that species because, as our leading expert explained, habitat fragmentation is the snake's gravest threat, but it is one which the agencies have completely ignored in reviewing projects throughout the species' habitat."

Lamberth had ruled against the environmental group on that point.

Williams wrote that today's ruling "substantially alters the substantive merits outcome" that led to Lamberth's ruling. The case will now be remanded to Lamberth for him to consider how to proceed in light of what the appeals court said.

Douglas Halsey, a lawyer at White & Case who represents the developer, described the ruling as a "resounding victory" that "upheld virtually all of the corps’ original decision-making in issuing the permit for Cypress Creek."

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