Army Corps enforcement on 404 permit triggers stay of endangered species litigation over Cypress Creek Town Center
Sierra Club v. Van Antwerp, Civil Action No. 07-1756 (RCL), Memorandum Opinion (D.D.C., June 11, 2008)
PERMITTING HISTORY. Cypress Creek Town Center (“CCTC”) is a regional shopping mall with supporting commercial establishments, including retail businesses, hotels, restaurants, cinemas, and multi-family residential housing. The development is located on approximately 507 acres of undeveloped land in Pasco County, Florida. In May 2005, Sierra Properties applied for a Clean Water Act (“CWA”) permit pursuant to CWA section 404 for the CCTC… on May 15, 2007, the Corps issued an Environmental Assessment finding that CCTC would not cause unacceptable environmental impacts and issued the requested section 404 permit allowing development of CCTC to proceed.
Photo of the construction site at Cypress Creek Town Center Mall , by Alexis Muellner from the Tampa Bay Business Journal.
CASE HISTORY. On October 1, 2007, plaintiffs filed suit in this Court against federal defendants alleging improper issuance of the CWA section 404 permit and an improper concurrence letter issued by the United States Fish and Wildlife Service (“FWS”) stating that CCTC would not adversely impact four endangered species, the Wood Stork, the Florida Scrub Jay, the Eastern Indigo Snake, and the Manatee. Plaintiffs’ complaint asks this court to find that the section 404 permit was issued in violation of the Endangered Species Act, the CWA, the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act, and their accompanying regulations. On January 16, 2008, plaintiffs filed a motion for summary judgment. On February 5, 2008, before opposition briefs to this motion were due, federal defendants filed a notice with the Court indicating that the Corps had suspended Sierra Properties’ section 404 permit effective February 1, 2008. The Corps suspended the permit because the project had discharged turbid water into Cypress Creek… On February 13, 2008, federal defendants filed their motion for voluntary remand and stay pending final Corps action on the remanded permit. According to the Corps, the intervening events that led to the permit’s suspension and new evidence gained from subsequent investigation and review of the permit decision may render some or all of plaintiffs’ claims moot.
RULING. The Corps has a substantial and legitimate interest in reconsidering its permit decision on remand based on a more complete factual record… and the Corps may ultimately revoke the permit or modify its decisionmaking process in such a manner that would make these proceedings moot... Plaintiffs also contend that any stay of judicial proceedings will cause extreme prejudice to environmental interests. Yet, the permit’s suspension in effect removes the potential harm created by Intervenors in the areas under the Corps’ jurisdiction… The Corps’ voluntary reconsideration of the permit appears to be a development along the lines of the relief that plaintiffs seek… The Court fails to see how extreme prejudice would accompany a stay pending the Corps’ reconsideration on remand.
COMMENTARY: The litigation in the Tampa area is noteworthy because the 1.5 million square feet mall (also called a lifestyle center) will become one of the largest in the region.