ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court upon Defendants’ Motion for Summary Judgment (DE 39), filed August 8, 2005; and Plaintiffs’ Motion for Summary Judgment (DE 41), filed August 8, 2005. The Court has considered the parties’ filings, as well as the Brief Amici Curiae of Palm Beach County and The Scripps Research Institute. (DE 48.) A hearing on the parties’ motions was held on September 26, 2005, where the parties and intervenors were heard.
In this action, the Florida Wildlife Federation and Sierra Club (collectively “Plaintiffs”) challenge the issuance of a permit by Defendant U.S. Army Corps of Engineers to Palm Beach County, allowing the filling of federally regulated wetlands for the development of a joint project be
Plaintiff Florida Wildlife Federation (FWF) is a private, state-wide non-profit citizen’s conservation education organization, with more than 1,000 members that live, own property or work in Palm Beach County. Plaintiff Sierra Club, Inc., is a non-profit organization interested in the protection and restoration of the natural and human environment, with approximately 30,000 members in the State of Florida.
Defendant U.S. Army Corps of Engineers is the agency of the federal government that issued the permit now being challenged. Defendant Colonel Robert M. Carpenter is the District Engineer of the Jacksonville District, and is sued in his official capacity.
Amici Curiae Palm Beach County and The Scripps Research Institute are contractually bound to build the proposed Biotechnology Research Park on the Mecca Farms property. 1 A.R. 1628. Palm Beach County is the owner of the Mecca Farms site, and the Applicant for the permit now challenged. The Scripps Research Institute is an internationally recognized nonprofit research orgаnization, specializing in biomedical research into a number of areas, including molecular and cellular biology, chemistry, and synthetic vaccine development. Based in La Jolla, California, Scripps is located in a biotechnology cluster that includes other facilities such as the Salk Institute and the Burnham Institute.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question); 5 U.S.C. §§ 702 and 706(1), (2)(A), (C), (D) (Administrative Procedures Act); 28 U.S.C. § 1361 (mandamus); and 28 U.S.C. § 2201 (Declaratory Judgment Act).
Venue is proper in this district under 28 U.S.C. § 1391(b), as the actions giving rise to this claim occurred in the Southern District of Florida, and 28 U.S.C. §’ 1391(e) because it is a civil action against an agency and an officer of an agency of the United States acting in his official capacity under 5 U.S.C. § 703.
The Court has reviewed the record and is otherwise fully advised in the premises. The Court makes the following findings of fact and conclusions of law. 2
1. BACKGROUND
A. The Palm Beach County Biotechnology Research Park 3
On October 8, 2003, The Scripps Research Institute (“Scripps”) announced
Several sites were assessed to accommodate not only the Scripps Florida facility, but also new biotech research centers and related businesses expected to follow, as well as support facilities, including commercial services, educational facilities, civic uses, and residential development for the workforce. A.R. 351.
Ultimately, the Mecca Farms site, located in Palm Beach County, was selected. The Palm Beach County Business Development Board (BDB) acquired land rights for the site, consisting of the 1,919 acre Mecca Farms. 4
On November 18, 2003, Palm Beach County and the Florida Office of Tourism, Trade, and Economic Development (OT-TED) entered into a Memorandum of Agreement to allow for Expedited Permitting Review for the Mecca Farms site. A.R. 156. By December 18, 2003, the Army Corps of Engineers agreed to try to work with the County in an expeditious manner as well. A.R. 10.
In February 2004, Palm Beach County acquired land rights to the 1,919 Mecca Farms site, allowing the County to act as agent for the property owner and to submit applications for any changes in land use and zoning, and submit applications for any and all development approvals and permits. A.R. 172.
The County then filed with the State’s OTTED a “Project Description Form for Expedited Permitting Reviеw for the proposed Palm Beach County Biotechnology Research Park to be located on approximately 1,920 acres in northwestern Palm Beach County.” A.R. 183-12.
Palm Beach County, the project’s Master Developer, described the Research Park as a multiple use development plan for approximately 1,920 acres of property, with Scripps as its centerpiece. A.R. 166-65. The County touted Scripps’ “proven business model” which includes “developing a biotech/pharma industry cluster that has led to the start up of more than 40 high-tech businesses.” A.R. 169. The County described the benefits of economic clustering, which is the location of industries in a particular geographic area in order to take advantage of labor pools or to gain convenient access to highly specialized services that are present to service the needs of an anchor business, such as, in this case. Scripps. A.R. 168. The County anticipated that Scripps’ success in developing a biotech/pharma industry cluster in San Diego County could be replicated in Palm Beach County, at an even faster pace than that which was the case in California. A.R. 169. Palm Beach County noted that biotechnology has been described as the first global “gold rush” of the 21st-century. A.R. 168.
In March 2004, the OTTED certified the Research Park Project for Florida’s Expedited Permitting Process pursuant to Florida law. A.R. 188. The Army Corps of Engineers attended the pre-application meeting for all interested agencies and parties. A.R. 2683.
On May 10, 2004, Palm Beach County submitted an Application for Development
The County announced that “[t]he arrival of [Scripps] in Palm Beach County could prove to be as significant to South Florida’s economy as the arrival of Henry Fla-gler’s railroad a century ago.” A.R. 330.
The State of Florida agreed to provide $310 million of economic stimulus funds over a period of seven years. Palm Beach County pledged to spend up to $200 million to provide land, infrastructure and buildings for the new Scripps Florida facility, paying $60 million for the 1,919 Mecca Farms site. A.R. 351. While the Scripps facility would occupy 102.03 acres, other portions of the property would be used to enhance surrounding ecosystems, meet water management goals, and buffer nearby residential properties. A.R. 351. The remaining property would be made available to other biotech-related companies and support facilities, “enabling the County to recover costs associated with the project.” A.R. 351.
B. Mecca Farms
Mecca Farms was historically part of the Hungryland Slough, and predominately wetland. A.R. 2686. Located in Palm Beach County, Mecca Farms is bordered to the west by the J.W. Corbett Wildlife Management Area, to the north by Hun-gryland Slough and active orange groves, to the east by undeveloped private land, and to the south by an active orange grove and residential development. A.R. 2686. Unit 11 Hungryland Slough and the J.W. Corbett Wildlife Management Park are preserved as conservation/ environmentally sensitive lands. A.R. 2633.
The July 1999 Loxahatchee River Basin Wetland Planning Project for Palm Beach County stated that the Vavrus Ranch (to the east of Mecca Farms) is one of the largest areas containing wetlands that have not been protected. A.R. 2661. In addition, the undeveloped land to the north may be prime foraging and/or nesting habitat for many endangered species including wood storks, peregrine falcons, bald eagles, Audobon’s crested caracaras, and snail kites. A.R. 2643. The J.W. Corbett Wildlife Management Area could contain similar species. Id.
The Mecca Farms site was most recently an active citrus grove. The site was zoned Agricultural Residential in part and Special Agriculture in part, and had a Future Land Use designation of Rural Residential 10, which would allow up to one dwelling unit per 10 acres. A.R. 156.
To prepare the site for agriculture, ditches were constructed in place of historic flow ways to drain the site. The agricultural ditches are present throughout the site every 360 feet, and run in a nоrth-south orientation throughout. A.R. 2144. The ditches, which are permanently inundated, are connected to the C-18 Canal, a tributary of the Northwest Fork of the Loxahatchee River. A.R. 2687; 2642. The ditches are therefore considered waters of the United States. A.R. 2685.
C. The Permit Application
In order to build the Research Park development, the County requires a Section 404 permit from the U.S. Army Corps
In May or June 2004, Palm Beach County filed an application for the permit now being challenged. 5 The proposal did not cover the entire Research Park development planned for the 1,919 acre site, but rather was limited to what the County called the Scripps Research Park, covering 535 acres of the site. The proposal included the construction of the Scripps Research Institute on 183 acres; a 30-acre town center with commercial and multifamily residential housing; a 27 acre clin-ie/hospital; a 15 acre utility site; three surface water management lakes totaling 87 acres; 3 acres of internal roads, 97 acres of upland hardwood forests, and 93 acres of open space A.R. 2686. As a result of the 535-acre project, approximately 21.3 acres of jurisdictional drainage ditches would be impacted. The existing open water quarry would also be expanded from its current size of 27.6 acres to 48 acres. A.R. 2686.
The County asked the Corps to evaluate its proposal to build “a 535-acre biotechnology research park” in the Mecca Farms site independently from the remaining future development on the 1,900 acre site, as well as from any future planned development in the nearby area because the biotechnology research park has independent utility from any future development. A.R. 2685-2684.
An alternative sites analysis was conducted, considering five alternative locations: Parcel 19; Palm Beach Park of Commerce; The Briger Parcel; The Riviera Beach CRA; and Florida Crystals site. A.R. 2670-2663.
In August 2004, the Corps published a Public Notice on the web, which was sent to all interested parties, including appropriate State and Federal agencies. A.R. 2682. In the Public Notice, the Corps announced that although it was aware that the County had plans to develop the remaining 1,365 acres of Mecca Farms, it believed that the 535 acre Project had “independent utility” from the larger Research Park Development because it could be constructed solely, without need for the remaining development. A.R. 1234.
The Corps’ public notice time frame was extended from September 4, 2004 to October 4, 2004, since two major hurricanes affected South Florida during the time the comment period would have closed. A.R. 2682.
During the comment period, the U.S. Environmental Protection Agency (EPA) raised concerns with the alternative sites analysis, water storage and conveyance to the North Fork of the Loxahatchee River, prior converted wetlands, appropriate mitigation, water quality issues, the ecological benefit of the project, secondary and cumulative effects, and the development of adjacent properties. A.R. 2682.
The U.S. Fish and Wildlife Service (FWS) requested that the Corps include a determination for the eastern indigo snake. The FWS concurred with the Corps’ subsequent determination that the project may affect but is not likely to adversely affect the eastern indigo snake, with construction precautions, and the woodstork.
The National Marine Fisheries Service (NMFS), Habitat Conservation Division, expressed concerns with secondary and cumulative effects, further development of adjacent properties, avoidance and minimization, appropriate mitigation, prior converted wetlands, and evaluation of direct and indirect impacts as a result of the project. A.R. 2681.
The Comprehensive Everglades Restoration Program (CERP) acknowledged that a portion of the Mecca Farms parcel is a potential site for a stormwater treatment area or a reservoir within the CERP North Palm Beach County PIR, but believed that the County’s agreement to provide a “flow way” that would transfer water to the C-18 Canal may allow a vital hydraulic conveyance to the Northwest Fork of the Loxahatchee River. A.R. 2680.
The State Historic Preservation Officer (SHPO) expressed no concerns with the project. A.R. 2681.
Several organizations, including Plaintiffs, and other interested parties and individuals responded to the public notice, expressing concerns including cumulative impacts, endangered species, historic resources, water quality, impacts to the Wild and Scenic River, Comprehensive Everglades Restoration Program (CERP), mitigation, alternative sites analysis, single and complete project, independent utility, cost to the taxpayers, development on adjacent properties, impacts to conservation lands, rate of development in Palm Beach County, secondary and cumulative impacts, watershed analysis, water resources, water supply, water storage, and compliance with the Palm Beach County Comprehensive Plan with Urban Development. A.R. 2681-80. The majority of com-menters objected to the issuance of the permit. 6 A.R. 2638.
In October 2004, the County responded to the federal agency’s comments; in November 2004, the County responded to the Corps’ request for additional information. The Corps was satisfied with the responses. A.R. 2679.
During the pendency of the Corps permit application, the South Florida Water Management District (SFMWD) Governing Board approved an Environmental Resource Permit (ERP) permit for the entire 1,919 project. A.R. 1288-1302, 1305. The SFWMD also issued a permit titled “Conceptual Approval of a Surface Water Management System to Serve a 1919 Acre Project Known As the Palm Beach County Biotechnology Research Park and Construction and Operation of Phase 1A.” 7 A.R. 2142. In addition, the Board of County Commissioners approved a zoning amendment that allowed a change in land use to support the entire development on Mecca Farms. A.R. 2640. Lastly, Palm Beach County issued a Resolution Approving the Palm Beach County Biotechnology Research Park DRI. 8
In February 2005, the Corps issued an Environmental Assessment in which it found that Palm Beach County had shown the independent utility of the project warranting evaluation of the proposal independently from the remaining future planned development,
9
and concluded that the pro
II. STANDARD AND SCOPE OF REVIEW
Summary judgment is appropriate only when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.
Fed. R.Civ.P.
56(c);
Celotex Corp. v. Catrett,
Under the Administrative Procedure Act (APA), the Court must “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).
Applying this standard, the Court must determine whether “the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”
Citizens to Preserve Overton Park, Inc. v. Volpe,
Although the Court must generally defer to agency determinations, the Court “must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself.”
Sierra Club v. Martin,
Agency action must be set aside if the agency relies on factors which Congress did not intend for it to consider, entirely fails to consider an important aspect of the problem, offers an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.,
When a court reviews a decision under the APA, “[t]he focal point for judicial review of an administrative agency’s action should be the administrative record.”
Preserve Endangered Areas of Cobb’s History, Inc. (‘PEACH”) v. U.S. Army Corps of Eng’rs,
III. THE CLEAN WATER ACT
The Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., is designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Under the CWA, dredged or fill materials are pollutants. 33 U.S.C. § 1362(6). Section 404 of the CWA authorizes the Corps to issue permits “after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters,” including wetlands, under specific circumstances. 33 U.S.C. § 1344.
When evaluating a permit application, the Corps must first evaluate whether the activity is water dependent. If the proposal is not water dependent, there is a presumption that practicable alternatives that do not involve special aquatic sites exist, unless clearly demonstrated otherwise. 40 C.F.R. § 230.10(a)(3). In addition, the Corps shall not issue a permit for the discharge of dredged or fill material “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a).
The Corps’ regulations provide that “Although a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in a major impairment of wetland resources. Thus, the particular wetland site for which an application is made will be evaluated with the recognition that it may be part of a complete and interrelated wetland area.” 33 CFR § 320.4(b)(3).
If the permit applicant establishes that no less damaging, practicable alternative is available, the applicant must then show that all “appropriate and practicable steps” will be taken to minimize adverse effects of the discharge on the wetlands. 40 C.F.R. § 230.10(d). 12 Only after showing that avoidance and minimization criteria have been met, can the Corps consider mitigation.
Pursuant to 40 C.F.R. § 230.5, the Corps, as the permitting authority should “[e]xamine practicable alternatives to the proposed discharge, that is, not discharging into the waters of the U.S. or discharging into an alternative aquatic site with potentially less damaging consequences; evaluate the various physical and chemical comрonents which characterize the nonliving environment of the candidate site, the substrate and the water including its dynamic characteristics; identify and evaluate any special or critical characteristics of the candidate disposal site, and surrounding areas which might be affected by use of such site, related to their living communities or human uses; evaluate the material to be discharged to determine the possibility of chemical contamination or physical incompatibility of the material to be discharged; identify appropriate and
The 404 Guidelines require the Corps to consider “both individual and cumulative impacts” of the proposed project, as well as practicable alternatives that would have less adverse impact on aquatic systems. 40 CFR § 230.6 and .10(a). The Corps must balance “benefits which reasonably may be expected to accrue from the proposal” against the proposal’s “reasonably foreseeable detriments.” 33 C.F.R. § 320.4(a)(1).
The Corps’ regulations provide that “[although a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in a major impairment of wetland resources. Thus, the particular wetland site for which an application is made will be evaluated with the recognition that it may be part of a complete and interrelated wetland area.” 33 CFR § 320.4(b)(3).
IV. THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)
Congress enacted NEPA “to encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation[.]” 42 U.S.C. § 4321. In particular, Congress recognized “the profound influences of population growth, high-density urbanization, industrial expansion [and] resource exploitation on the natural environment” and “the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man.” 42 U.S.C. § 4331(a).
To these ends, NEPA requires federal agencies to consider “environmental amenities and values” in planning and decision-making which may have an impact on the environment. 42 U.S.C. § 4332;
C.A.R.E. Now, Inc., v. Federal Aviation Admin.,
In particular, the statutory requirement that an agency contemplating a major federal action prepare an environmental impact statement “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts[.]” It also serves the important purpose of making that information available to a larger audience that may also play a role in the decision-making process, assuring the public that the agency has considered all relevant environmental concerns in its decision-making, and “providing] a springboard for public comment.”
Robertson,
Perhaps most importantly, by focusing an agency’s attention on the environmental consequences of a proposed project, the “action-forcing” nature of NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.
Robertson v. Methow Valley Citizens Council,
Congress created the Council on Environmental Quality (CEQ) to promulgate regulations applicable to all federal agencies in order to promote and implement the NEPA policy. 42 U.S.C. § 4342.
CEQ regulations direct agencies to prepare an Environmental Assessment (EA) in order to determine whether the environmental effects of a proposed action are “significant.” 40 C.F.R. §§ 1501.3, 1501.4(b), 1508.9,1508.27.
Under CEQ regulations, “significance” requires consideration of both context and intensity. Context considerations include the affected region, interests and locality, varying with the setting of the action, and include both short and long-term effects. Intensity refers to the severity of impact, including impacts that may be both benefiсial and adverse; unique characteristics of the geographic area, such as proximity to wetlands, wild and scenic rivers, or ecologically critical areas; the degree to which the effects on the quality of the human environment are likely to be highly controversial; and whether the action is related to other actions with individually insignificant but cumulatively significant impacts; the degree to which the action may adversely affect an endangered or threatened species or its habitat; and whether the action threatens a violation- of Federal, State, or local law or requirements imposed for the protection of the environment. 40 C.F.R. § 1508.27.
The purpose of an Environmental Analysis (EA) is to “briefly provide sufficient evidence and analysis” to determine whether the proposed action will have a significant impact. 40 C.F.R. § 1508.27. To determine whether a federal action is “significant,” an agency must consider the direct, indirect, and cumulative impacts on the environment. 40 C.F.R. §§ 1508.8, § 1508.27(b). If the agency finds no significant impact (FONSI), then no further evaluation of the environmental effects is required. 40 C.F.R. §§ 1508.9, 1508.13. If, on the other hand, the agency finds a significant impact, the agency must prepare an Environmental Impact Statement (EIS) to detail the environmental consequences of the proposed action. 42 U.S.C. § 4332(2)(c);
Hill v. Boy,
An agency’s finding of no significant impact and decision not to prepare an EIS are final administrative decisions reviewable under the APA. 5 U.S.C. § 701 et seq. The “arbitrary and capricious” standard applies to the Court’s review of the Corps’ decision not to prepare an EIS.
Hill,
The Eleventh Circuit has adopted a four-part test to determine whether an agency’s decision not to prepare an EIS is arbitrary and capricious: (1) the agency must have accurately identified the relevant environmental concerns; (2) the agency must then take a “hard look” at those concerns when preparing the EA; (3) the agency must make a convincing case for a finding of no significant impact; and (4) 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,
V. ANALYSIS
The crux of Plaintiffs’ complaint is that the Corps acted arbitrarily and capricious
Plaintiffs raise three theories in support of this argument: (1) that the Corps unlawfully segmented the project to avoid a finding of significance; (2) that the Corps’ finding that Phase I had independent utility was arbitrary and capricious; (3) that the Corps’ environmental analysis failed to consider and take a hard look at all environmental concerns, including (a) impacts; (b) controversy; and (c) alternatives.
A. Major Federal Action and Scope of Analysis
The Corps first argues that while the issuance of the Section 404 permit in this case was a “federal” action, it is not necessarily a “major” federal action, triggering requirements of NEPA. See 40 C.F.R. § 1508.18 (“major” reinforces but does not have a meaning independent of “significantly”).
The Court finds this argument to be without merit. The Corps relies on the Eleventh Circuit’s holding that the requirements of NEPA apply only when the federal government’s involvement in the project is sufficient to constitute a “major federal action.”
U.S. v. Southern Florida Water Management Dist.
The Corps further argues that it properly limited the scope of its analysis to the aspects of the project over which it had sufficient “control and responsibility” to warrant federal review. The Corps’ NEPA regulations provide that where activity requiring a permit is “merely one component of a larger project” ... the scope of the environmental review should “address the impacts of the specific activity requiring the permit and those portions of the entire project over which the district engineer has sufficient control and responsibility.” 33 C.F.R. Part 325, Appx. B § 7(b).
13
The Corps’ determination of the
The Corps relies on
Wetlands Action Network v. U.S. Army Corps of Eng’rs,
The facts of this case are more similar to those in Thomas that those in Sylvester. Here, the Corps has conceded that it was aware of plans for future development; that it will have jurisdiction over the next phases of development; and that it anticipates applications for those phases. Still, the Corps did not evaluate those effects. In addition, as discussed in more detail below, the Corps here considered the economic benefits of the entirety of the project in its analysis, rather than limiting that analysis to phase 1. In addition, unlike in Sylvester, the Research Park Project Plan was developed as an integrated whole along a continuum, with Scripps as its centerpiеce triggering related biotechnology growth.
The Corps’ reliance on certain examples in the regulations is misplaced. The example cited is, that if a County seeks a permit to fill wetlands, the control and responsibility of the Corps extends to the portions of the project to be located on the permitted fill, and to the entire project, including portions outside waters of the U.S., only if sufficient control and responsibility over the entire project were determined to exist; that is, if the regulated activities comprised a substantial portion of the overall project. 33 C.F.R. Part 325, Appx. B, § 7(b)(3).
Rather than confirm the Corps’ restrictive view of its environmental analysis, this example would tend to support the view that the Corps’ scope of analysis should have included, at the least, the development of the remainder of Mecca Farms. Unlike the example above, the filling of wetlands on Mecca is not a discrete task,
The County emphasizes that the wetlands located on Mecca Farms are of “low ecological value.” This characterization, while relevant to the direct effects of dredging and filling, and to mitigation, however, does not diminish the Corps’ jurisdiction, the scope of its analysis, or its obligation to consider environmental effects under NEPA of its permit action.
B. Segmentation 15
The anti-segmentation rule is generally that an agency “cannot ‘evade [its] responsibilities’ under the National Environmental Policy Act by ‘artificially dividing a major federal action into smaller components, each without a “significant” impact.’ ”
PEACH v. U.S. Army Corps,
Plaintiffs argue that the Corps unlawfully segmented this project in two ways: first, by limiting its environmental analysis to the effects of the 535-acre project rather than the complete 1,919-acre project; and second, by authorizing the extension of PGA Boulevard within the 535-acre project boundaries without taking into account its projected connection to the Bee Line Highway across wetlands.
Relying primarily on
Kleppe v. Sierra Club,
In
Kleppe,
the Court held that “when several proposals for ... actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together. Only through comprehensive consideration of pending proposals can the agency evaluate different courses of action.”
Subsequent CEQ regulations codified that holding, by requiring that an EIS include consideration of connected, cumulative and similar actions. 40 C.F.R. § 1508.25.
16
Relying on this regulation, the
Importantly, in
Environmental Defense Fund v. Marsh,
That case is particularly instructive here, insofar as Plaintiffs’ claims regarding the segmentation of PGA Boulevard are concerned.
The parties do not dispute that the Corps’ permit authorizes the construction of a road across the southern end of the proposed project site that is ultimately planned as an extension of PGA Boulevard from Seminole Pratt Whitney Road to the Bee Line Highway. AR. 2713.
Plaintiffs argue in particular that by authorizing the construction of PGA Boulevard through the site, the Corps has predetermined the ultimate alignment of the connecting PGA extension, as it will have to connect the existing portion to the newly permitted segment through wetlands, and preclude the ability to thoroughly evaluate alternative alignments. The Court agrees.
One need only review the map of the proposed site in context to see that the placement of a PGA Boulevard extension as conceived by the County and approved by the Corps will ultimately require a connection through an area on what the parties agree includes high value wetlands.
In fact, the maps initially submitted by the Corps indicated that the road would be extended, although the extension was indicated by arrows only, alignment to be determined. The maps were revised by the County only after the Corps instructed the County to indicate the roads ending in cul-de-sacs. 18 The Corps explains that it instructed the County to do this because it had not approved any road extension beyond the project boundaries.
In any event, however, the Corps was duty bound to evaluate the plans of the County, particularly where the Corps had specifically noted that the access roads presented the “bigger” or more “troublesome” environmental issues of the planned development. Just as a project may not be unlawfully segmented to avoid significance, the concept of “independent utility” should not be manipulated to avoid significance or “troublesome” environmental issues, in order to expedite the permitting process.
Citing
Sierra Club v. Callaway,
The Corps also relies on
Daly v. Volpe,
In
Preserve Endangered Areas of Cobb’s History, Inc. (“PEACH”) v. U.S. Army Corps,
Although the road permitted here can stand alone — as any road could— it cannot be said that ending an extension of PGA Boulevard in a cul-de-sac is a logical terminus, particularly when strategically placed in a property that is planned and expected to induce significant development. Further, it is clear that the full benefit of this road is realized only when it is extended to the Bee Line Highway as planned. In addition, by permitting the construction of a road along the mostly southern border of the proposed project site, the Corps risks foreclosing the wide range of options for building roads intended to service the entire development. “If proceeding with one project will, because of functional or economic dependence, foreclose options or irretrievably commit resources to future projects, the environmental consequences of the projects should be evaluated together.”
Piedmont Heights Civic Club, Inc. v. Moreland,
This finding of no significant impact, particularly in view of the record evidence that the Corps anticipated significant environmental consequences associated with the road expansions, is sufficiently contrary to the underlying policy of NEPA to warrant review of the planned extensions even though not formally proposed.
The Corps urges that this case presents different facts, because in
Named Individual Members,
the three proposed highway segments were before the agency when it elected to segment them. However, the Court in
Named Individual Members
not only condemned the segmentation as unauthorized agency action under the relevant statute, but also as unlawful because of the “frustrating effect such piecemeal administrative approvals would have on the vitality of [the protective statute].”
19
While the instant case does not present the same egregious conduct found in Named Individual Members, the Court is troubled by the Corps’ authorization of a segment of PGA Boulevard within the proposed project, and ending in a cul-de-sac, without examining the reasonably foreseeable environmental issues the Corps itself identified.
C. Independent Utility
The Corps also argues that its analysis was properly limited to the 535-acre proposed project because that project has “independent utility.”
The Corps defines independent utility as “A test to determine what constitutes a single and complete project in the Corps regulatory program. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area. Portions of a multi-phase project that depend upon other phases of the project do not have independent utility. Phases of a project that would be constructed even if the other phases were not built can be considered as separate single and complete projects with independent utility.” 67 Fed.Reg.2094 (Jan. 15, 2002).
In its EA, the Corps stated that it believed that Palm Beach County had shown that the 535-acre project had independent utility from (1) the remaining future development on the 1,919 acre Mecca Farms site; (2) the development on Vavrus Ranch; (3) and the construction of future roads. A.R. 2684. The Corps explained that it reached this conclusion:
because the biotechnоlogy research park could be constructed alone, without need for the remaining development, and is not dependent on that other development for its success. In addition, no new roads would be constructed outside of the 535-acre site as a result of the biotechnology research park... Moreover, the development of Vavrus Ranch and the remainder of Mecca Farms are likely even if the SCRIPPS Biotechnology Park is not built.
A.R. 2684. 20
Plaintiffs argue that the “independent utility” determination was arbitrary and capricious, and that it is betrayed by the record, which they contend shows that the 535-project, the remaining Mecca development, and development of Vavrus Ranch are “inextricably related.” Plaintiffs emphasize that the County’s vision has always been that of a unified campus, with Scripps as its anchor, and that the County selected the Mecca site for its size. Plaintiffs also argue that it is insufficient for the Corps to rely exclusively on the County’s representations of independent utility to make this determination.
The assessment of independent utility “reveals whether the project is indeed a separate project, justifying the consideration of the environmental effects of that project alone.”
In
PEACH,
the Corps “required Cobb County to show that the project had independent utility,” which the County did relying on more than fifty exhibits.
The record in this case, however, is starkingly different from the facts presented in PEACH. The inescapable conclusion from this record is that the Research Park Project was conceptualized as an integrated whole, progressing in phases, and that the 535-aere project was never intended to stand alone — not, that is, until time came to apply for a CWA permit. The record also reflects a sense of urgency, and that the Corps early on committed to try to expedite the process, even thоugh in the end more than eight months passed between the formal application and the permit’s issuance.
The administrative record in this case actually begins in November 2003, about six months before the Corps contends the County’s Permit Application was filed. In December 2003, Corps attends a “Scripps Expedited Preliminary Permitting Project — Preliminary Agency Briefing,” which includes a discussion about the Comprehensive Plan Amendment and the DRI. The agenda includes a “Preliminary Time Frame Discussion,” but no mention or allusion to a stand alone project. A.R. 7. On December 18, 2003, in an internal email a Corps’ member writes, “[The County is] going through the expedited permit process with the State and the Corps has agreed to try and work with them in an expeditious manner as well.” A.R. 10.
In February 2004, the County files a “Project Description Form for Expedited Permitting Review for the proposed Palm Beach County Biotechnology Research Park to be located on approximately 1,920 acres in northwestern Palm Beach County” with the Office of Tourism, Trade and Economic Development, and sent a copy to the Corps. A.R. 12-183.
The County documents state that “the extension of Seminole Pratt Whitney Road will occur along the western side of the site.” A.R. 165-166. In addition, the County “anticipates that construction of Seminole Pratt Whitney Road from North-lake Boulevard north to its planned intersection with PGA Boulevard will begin January 2005,” the same time the County is to deliver the first 100 acres to Scripps to build the initial facility. A.R. 18. “Construction of PGA Boulevard from Seminole Pratt Whitney Road East to Scripps will begin September 2005.” A.R. 18. The County notes that the PGA extension off-site would not be required until after the initial phase. A.R.1908.
In March 2004, the Corps acknowledges receiving the County’s Application. 21
On March 14, 2004, an internal Corps email again states that the Corps had committed to completing the “evaluation as fast as possible.” Specifically, the Corps
On March 16, 2004, the County provides a description of the project, writing “Proposed is a research park devеlopment on approximately 1,920 acres in the northwestern region of Palm Beach County.” A.R. 228.
On March 18, 2004, the County provides the Corps with a description of the “Palm Beach County Biotechnology Research Park” as a “multiple use development planned for approximately 1,920 acres of property in the northwestern portion of Palm Beach County.” A.R. 234. The description adds that adjoining Vavrus Ranch “is being considered for development with similar and complementary uses to what is proposed for the Research Park. Efforts to jointly plan for both developments are underway[.]” A.R. 234. The document further states that “a preliminary program has been developed for the approximately 1,920-acre property Palm Beach County Biotechnology Research Park[.]” A.R. 232. The Scripps Research Institute (TSRI) is described as the “centerpiece” of the project. A.R. 232. The County describes its intent as the master developer as follows:
[T]o develop a project that is sustainable and economically viable by creating a master plan that clusters the uses to promote intellectual exchange between the researchers and scientists at TSRI and other related companies, provides for a range of workforce housing to help minimize traffic impacts on surrounding roadways and provide obtainable housing for administrative and support staff, provides convenient retail, restaurant and other shopping opportunities for the workforce and residents, and promotes an integrated development that incorporates transportation alternatives to the automobile by incorporating a connected pathway, bikeway and multi-use rail system throughout the project.
A.R. 232. In addition, the document states that “[t]he presence of TSRI in Palm Beach County, along with the influence of high-tech markets, will encourage other industries to locate their facilities at this site ... These facilities will consist of approximately 8.5 million gross square feet of building space [.]” A.R. 231. 22
An internal Corps email “Re: Scripps” states that the Corps is working “on the associated road infrastructure.” A.R. 238. The Corps member writes that a state expedited review is underway “because of the economic benefits to the state” and that the Corps has “indicated that we will do our best to keep pace with the state’s review.” A.R. 238.
In April 2004, an internal Corps email attaches a “fact sheet” its regulatory project manager prepared. That fact sheet states:
This project proposes to develop a 1,919-acre site ... by constructing a biotechnological and biomedical research and pharmaceutical business park known as the SCRIPPS park. Within the 1,919 acre site, the project also proposes to construct single-family residential areas, multi-family residential areas, commercial areas, recreation areas, a high school, a university, surface water management lakes, a greenbelt area and associated roads... The Corps has said we will evaluate the application as quickly as we can recognizing the importance of the project to the local economy.
The Corps notes that “initially identified roads would connect to existing roads through high value wetlands” and that the Corps had “identified that concern to the State and County.” A.R. 242. Later that month, the Corps and the U.S. Fish and Wildlife Service (FWS) exchange emails related to both the Vavrus and Mecca “projects.” A.R. 256. In response to a FWS request for more information, the Corps writes:
These are definitely the types of issues that will have to be resolved as we collectively look at cumulative and secondary impacts associated with these two projects... As far as FDOT is concerned, they have been working on revisions to their planning process and budget to incorporate the roads in the vicinity of Scripps in their schedule... Roads such as PGA and Northlake will become bigger issues as time goes on. I’m really not sure what the County is doing with their roads (i.e.Pratt-Whitney).
A.R. 256. The FWS asks whether FDOT has “specialists to address wildlife corridor issues” and whether “the appropriate expertise [will] be available [to the County and State project planners] to adequately address the habitat fragmentation associated with Vavrus and Mecca.” A.R. 260.
Then, on April 27, 2004, the “independent utility” concept appears in the record for the first time. In an internal Corps email regarding how to respond to press inquiries, one Corps member states that he explained to a reporter that the Corps had not yet received the application from the County, but that the Corps “would be conducting a thorough review for the overall project, particularly as it relates to associated roads and other infrastructure that may ultimately be constructed as a result of Scripps. We also told him of the potential for the review of the Scripps facility itself ... under the concept of ‘independent utility’ under the demonstration by the County ... that Scripps itself will be built in the absence of anything else.” A.R. 262. Another Corps member responds, “If the press simply asks about Scripps it seems to me we should describe the independent utility project we understand the County plans to submit. If we receive such a permit application we should be able to complete our review in approximately the time the State plans.” A.R. 261 (emphasis added).
On April 28, 2004, the Corps revises its fact sheet to describe a 100-acre project on the Mecca site, using existing roads on a portion of the property making the wetland impacts “minimal.” The fact sheet adds that “the permitting issues for this portion of the project are less complicated when compared to the permitting issues on the northeast portion of the property or where newly proposed roads would connect to existing roads through high value off-site wetlands.” A.R. 263. A subsequent revision on or about that same day describes the 535-acre project that the “Corps believes ... has independent utility from the remaining planned development on the 1,900-acre site because the biotechnology research park could stand alone, without the need for the remaining development.” 23
At oral argument, the Corps conceded that it relied entirely on the County’s representations as to the proposed project’s independent utility. Indeed, the only evidence in the record as to the proposed project’s independent utility are conclusory statements by the County.
Specifically, in May 2004, the County submitted a formal application for a 414-acre project, stating that “No widening of existing roads is necessary for the proposed project and the proposed project does not rely on any other рrojects or expansions; it is a complete stand-alone project with no wetland impacts.” 24 A.R. 481. In October 2004, in response to concerns by the EPA that all needed biotechnology-related development and site access should be considered in the analysis, the County responded that although “the remainder of the Mecca Farms site is proposed for development ... the current proposed project has independent utility and will function as a stand alone project; it does not require any of the future development or roadway extensions/expansions.” A.R. 1587. In response to the EPA concern that approval of this application could lead to piecemeal development of significant wetland resources for other biotechnology related growth, and that therefore all potential secondary and cumulative effects should be considered, the County responded that because the proposed project has independent utility, no secondary or cumulative effects on the aquatic environment would occur. A.R. 1576. In response to NMFS concern about potential secondary and cumulative impacts to adjacent wetlands caused by project related or induced construction and development, the County responded that because the proposed project has independent utility, no secondary or cumulative effects on the aquatic environment will occur. A.R. 1584.
In November 2004, in response to a request from the Corps for additional information as to the proposed project’s independent utility, the County responded that detailed traffic studies were performed as part of the DRI and Planned Industrial Park Development (PIPD) approvals, that it was determined that the project as proposed would not require additional road improvements or extensions and that this conclusion had been “ratified” by a Palm Beach County Resolution. The resolution, dated October 25, 2004, approves the DRI for the entire 1,919 project, and includes a “Roadway Improvement” section on every phase of the development but Phase I. 25 A.R.1911-1905. (“Phase I will not rely on that section of PGA Boulevard between the eastern limits of the Research Park to the Bee Line Highway. The extension of PGA Boulevard from the eastern limits of the Research Park to the Bee Line Highway will be designed as part of the latter phases of the DRI, with construction occurring after the design and permitting has been completed.”) See also, A.R. 356.
The County also wrote that “[t]he ultimate plans for the Biotechnology Research Park (BRP) does include a [power] substation located in the extreme southeast corner of J.W. Corbett Wildlife Management Area (JWCWMA), and it is the intent of Palm Beach County/ Florida Power and
The County continued to describe the purpose of the project as “to house a cluster of related life science research and development activities by both public and private entities” with TSRI as “an anchor.” A.R.1977.
As to the Corps’ evaluation of the proposed project’s independent utility, the Corps is only able to cite to two internal Corps emails where the issue is discussed. The first email, dated April 30, 2004, is in response to a question about how to answer press inquiries about discussions between the County and the Corps. A Corps member provides the following response:
Yes, the Corps South Permits Branch has met with the County on Scripps. We discussed the County’s plans and in particular the potential phasing of the Scripps project it self [sic] and potential related development. The Core Scripps facility would be constructed entirely on the orange grove, MECCA Farms. Road access for the core research facility exist [sic], but would be upgraded. A permit from the Corps is required, but only for filling several ditches onsite. Since the County has stated to the Corps that the core Scripps facility will be built at this site, whether or not any additional facilities, housing etc is constructed on or near the site, the Scripps research facility has what we call independent utility. That means that the core research facility will be built at this location regardless of any other development. Since the Corps views this first phase to have independent utility, we have also told the County that any decision we make on the first small phase does not mean we will or will not authorized [sic] other related development.
A.R. 269 (emphasis added). In the second email, dated June 28, 2004, a Corps’ member related what he told members of the EPA about the Corps’ position:
The 400 acres for the Scripps Lab itself and some other commercial [sic] has independent utility. So we can act on that application on its own. I am very comfortable with this because it is clear they will build this whether or not the more troublesome work on the roads and the Vavrus Ranch go forward. Moreover, Vavrus may not even sell his land to the Town of Palm Beach Gardens. Residential development will occur, with some other commercial on the remaining several hundred acres of orange grove on Mecca Farms (where the Scripps Lab itself will be). Other development over many years may be on Vavrus (there are many developable portions on Vavrus and it is only a matter of time before they are developed. We will deal with that when the applications come in, we do not even know who the applicant may be.)
A.R. 1068 (emphasis added). 26
The Corps now also argues that its position is supported by the County’s DRI
In support of its reliance on the County’s representations that Phase I would be built regardless of additional development, the Corрs cites
Hudson River Sloop Clearwater, Inc. v. Department of Navy,
The Court is not persuaded by those authorities under the facts presented in this case. Representations by the applicant alone, who clearly has an interest in obtaining the permit and whose theory of “independent utility” on a record such as this, can only be considered a post-hoc rationalization to secure a permit as rapidly as possible, cannot be sufficient to establish a project’s independent utility, without independent evaluation by the agency based on record evidence. Without such a basis, the Court is unable to adequately review the agency’s determination, nor can the public have confidence in the agency’s determination.
Not unlike the impropriety of segmentation to avoid significance, manipulation of a project design to conform to a concept of independent utility, particularly with the intention that a permit be expedited, undermines the underlying purposes of NEPA.
D. Impacts
Even if the proposed project were not unlawfully segmented, and the Corps’ conclusion of its independent utility were adequately supported and evaluated in the record, having defined the scope of its analysis the Corps is still duty bound to address “direct, indirect and cumulative impacts on all Federal interests within the purview of the NEPA statute.” 33 C.F.R. Part 325, Appendix B § 7(b)(3).
Indirect effects include those that are “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” They “may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.” 40 CFR § 1508.8.
The Corps argues that it was not required to evaluate the potential impacts from the development of the remainder of Mecca Farms or Vavrus Ranch because its permit action cannot be said to be the cause of future growth. In support of this proposition, the Corps cites to its repeated acknowledgment in the EA that “there is intense development pressure in Palm Beach County” and that additional development is likely to occur with or without the proposed project. 27
The problem with the Corps’ conclusion, however, is that it is wholly unsupported by the record. There is no basis in the record for the Corps’ determination that a “generalized development pressure” exists on or around Mecca Farms. In fact, the evidence in the record would tend to negate that conclusion, given that before the County developed its Biotechnology Research Park plan, Mecca Farms was an active citrus grove. A.R. 2687. The record also shows that the County secured rezoning for the entire property in order to be able to pursue this project.
In addition, the record reflects a dramatic and concerted effort on the part of the County and the State to develop a biotechnology industry, with Scripps as its anchor and centerpiece, that will ultimately occupy the entirety of Mecca Farms, with supporting facilities on Vavrus Ranch. At the very least, as regards Mecca, the County secured economic stimulus funds, land rights, re-zoning, and expedited permitting at the State level, all with the objective of establishing Scripps in Florida for the express purpose of inducing growth.
See Friends of the Earth, Inc. v. U.S. Army Corps of Eng’rs,
The Corps’ reliance on the holding in
Department of Transp. v. Public Citizen,
The Court stated that “ ‘but for’ causation was insufficient to make an agency responsible for a particular effect under NEPA and the relevant regulations. NEPA requires a ‘reasonably close causal relationship’ akin to proximate cause in tort law.”
Here, by contrast, the Corps conceded not only that the proposed project could not be сonstructed without the Section 404 permit now challenged, but also that the Corps would have jurisdiction over development of the remainder of Mecca Farms, which contains jurisdictional wetlands throughout, and the adjacent Vavrus Ranch, which contains hundreds of acres of high value wetlands. Quite to the contrary of the facts presented in Department of Transp. v. Public Citizen, the Corps in this case does have the discretion to prevent or manage the indirect effects of its permit on the land at issue. Further, applying the “rule of reason,” in this case the purposes of NEPA’s EIS requirement would be served by requiring the agency to consider these indirect effects. Lastly, the record irrefutably shows that the Scripps development is not intended to serve an existing need, but rather expected to serve as a catalyst for growth.
The Corps’ argument that the “inevitability” of development of these lands somehow breaks any causal connection is not only unsupported by the record, but is also legally untenable, as it is based on cases that are entirely inapposite. In
Citizens’ Committee to Save Our Canyons v. U.S. Forest Service,
In
Utahns for Better Transp. v. U.S. Dept. of Transp.,
The Corps’ reliance on
Florida Wildlife Federation v. Goldschmidt,
Here, instead, there is no evidence that any development, much less of the sort and intensity contemplated by the County, has been planned, committed, zoned and in progress irrespective of establishing the Scripps facility. In fact, only the contrary conclusion' — that the establishment of Scripps will be growth inducing — is supported by the record. Indeed, the state’s Governor likened the arrival of Scripps to Florida to the arrival of Flagler’s railroad, and described the explosive growth of the biotech industry as the “gold rush” of the century.
The EA’s repeated statements that the Corps “is aware” that future development may occur, that the proposed project “may entice” further development are a grossly inadequate consideration of the reasonably foreseeable indirect effects the Corps’ permitting of the proposed project will cause. The Corps failed to consider and take a “hard look” at the growth inducing effects of the proposed project as required by NEPA.
b. Cumulative effects
The Corps is also required to take a “hard look” at the cumulative effects of the proposed project. For purposes of determining significance, the CEQ regulations define “Cumulative impaсt” as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 CFR § 1508.7.
The Section 404 Guidelines under the Clean Water Act require the Corps to consider “both individual and cumulative impacts” of the proposed project, as well as practicable alternatives that would have less adverse impact on aquatic systems. 40 CFR § 230.6 and .10(a).
The Corps noted that if further development were permitted, as planned, “impacts could occur to the surface water ditches and the water catchment area to the northeast of the Mecca Farms site, as well as any possible wetland impacts on the Vavrus Ranch.” A.R. 2635.
The Corps also noted possible cumulative impacts on adjacent conservation ar
Relying primarily on
Park County Resource Council, Inc. v. U.S. Dept. of Agriculture,
At issue in
Park County
was Forest Service’s failure to prepare an EIS evaluating the “the eventual cumulative and foreseeable effects of exploratory drilling and then full field development” from federal oil and gas leases in the Rocky Mountain region national forests.
The cumulative effects the Plaintiffs here raise, however, are not so tentative or unlikely. At the very least, that the planned development of the entirety of Mecca Farms is reasonably foreseeable is amply demonstrated by the record, which shows that the County has undertaken concrete steps to advance the future development by securing land rights, re-zoning and expedited permitting as to the entire project. Further, the record shows that while TSRI may have independent utility, it was not intended as a stand-alone project, but as a catalyst for a much larger development. Lastly, the imminence of future action is supported by evidence in the record that more than two months before this permit issued, the Corps and the County were discussing the next phases of the Mecca development.
29
Rather
The Corps cites to a number of other cases of “phased development,” where courts have found it appropriate to limit environmental analysis to part of a multiphase project, on the basis that future phases were not to be reasonably foreseeable. The facts in those cases, however, are readily distinguished from those presented here.
In
Vieux Carre v. Pierce,
Here, instead, the Research Park Plan was developed within the last year. While the plan contemplated “phases,” the Research Park Plan does not contemplate a series of projects, but rather an integrated whole, with Scripps as its centerpiece. The County secured land rights, re-zoning, and expedited permitting for the Mecca Farms site to accomplish the larger project. The County and State committed funds not so that Scripps would stand alone, but with the entire project in mind. Here, only one developer, the County controls the rights for Mecca Farms. Lastly, no phase of the project has been shelved for any reason; future phases only await the first (catalyst) phase.
In
Airport Neighbors Alliance, Inc. v. U.S.,
Applying its
Park County
test, the court found that there was no “inextricable nexus” between the runway upgrade and other components of the Master Plan, even though they might currently be linked. The court found that the city could decide to abandon the Master Plan without destroying the proposed action’s functionality; the upgrade still would serve the purpose of accommodating the influx of passengers anticipated to occur during the upcoming decades at the state’s only commercial jet passenger airport; and that the record showed that the city would upgrade the runway even if the
The fundamental difference between the proposed runway in Airport Neighbors Alliance and the Palm Beach County Biotechnology Research Park, however, is that the record there supported the conclusion that the purpose of the project— serving an anticipated influx in passengers — would be met by the proposed project alone. 30 In this case, the overwhelming record evidence is that the purpose of the Scripps Park is not to serve an existing or anticipated biotechnology need; instead, its purpose is to serve as a catalyst for a “gold rush” of biotechnology industry growth in the area. Throughout the record, the County describes its purpose as to build a 1,919-acre Biotechnology Park in terms of the value of economic and functional industry clustering. Here, the court is unable to defer to the artificial narrowing of that purpose, because it is unsupported by the record, and instead contrary to the overwhelming weight of the evidence.
In
Society Hill Towers Owners’ Ass’n v. Rendell,
The court concluded that an EA for the proposed construction of a hotel/parking garage in Society Hill was not deficient for failing to consider the impact of future development that had been identified in six different city planning documents, including a proposed “mega” entertainment complex planned at Penn’s Landing. The court based this conclusion on the finding that the proposals in the planning documents were not “sufficiently concrete,” likely to be completed, or interdependent to warrant inclusion in the EA. The court also noted that there was no record evidence to show that these future plans were expected to materialize.
Again, the facts here present a starkly different situations. Plaintiffs here do not attempt to bring into the equatiqn a series of city plans divorced from the proposed project, but rather urge that the proposed project be considered in the very context in which it was developed. Further, although the proposed project may have independent utility, it certainly is and was not intended to stand alone. Unlike the tangential relationship between a parking garage in one section of Philadelphia and a mega entertainment center in another, here the proposed project and the future planning were developed as an integrated whole, and are intended to support each other, on the site of Mecca Farms. There is no evidence in the record that the County has abandoned its plans to develop the remainder of Mecca — to the contrary, the record evidence clearly shows consistent
As early as June 2004, the record shows that the Corps and County “discussed the future, separate, biotechnology projects and submittals. [The County] mentioned that [they] would like the next project to include the remainder of the southern portion of the Mecca property (i.e. everything south and west of the currently submitted Biotech Research Park-Scripps project area.) [The Corps] stated that as long as [the County] can prove individual utility, that it should be okay. The third and final project would be for the remainder of the Mecca site north of the currently submitted project area.” A.R. 1054. The County again thanked the Corps for its “commitment to expedite the review of this important project.” A.R. 1053. In a December 2004 email, the Corps Project Manager stated that she was meeting with the County to discuss Scripps and “the next phases of Mecca,” including a power substation. A.R. 2110.
The record in this case aptly demonstrates how too strict an application of the “interdependence test” for evaluating cumulative impacts could lead to an absurd result. In addition, relying exclusively on interdependence would appear to obliterate the distinction between the requirement to analyze “reasonably foreseeable future actions,” regardless of who undertakes them, as cumulative effects, and the separate requirement to consider “connected actions” together in one EIS, that the plain language of the regulations suggest. 31
c. Alternatives
NEPA requires federal agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(2)(E). The EA must address these alternatives.
32
40 C.F.R. § 1508.9(a). The
Moreover, the Corps’ NEPA implementing regulations require that “[i]n all cases, the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal.” 33 C.F.R. Part 325, Appendix B § 7(b)(3).
However, in this casе, the record shows that the Corps’ analysis, while narrowing the review of the proposed project’s impacts to the 535-acre project, improperly extended the scope of both its benefits and alternatives analysis to the entire Research Park Project.
In its early submissions to the Corps, the County repeatedly stated that the Mecca Farms site was chosen over other explored locations “most importantly for its size and buildable land, less environmental constraints and proximity to the many amenities in Northern Palm Beach County. Other sites were identified by the County, but none of them met the size requirements of TSRI and Palm Beach County.” See, e.g., A.R. 480; 1096.
The alternatives analysis provided by the County, and on which the Corps relied, provided that minimum requirements included “at least 500 developable acres.” A.R. 2670. However, that analysis also defined the factor of “developability” to include “the ability to accomplish future phases beyond minimum requirements [phase one] either on-site or offsite within less than 3 miles.” A.R. 1740. 33 The scope of the alternatives analysis, then, improperly incorporated consideration of the entire Research Park Project rather than limiting it to the scope of the proposal before the Corps.
The Corps also improperly expanded its scope of the alternatives analysis in its EA to include this greater development. For example, as to the Palm Beach Park of Commerce, the Corps wrote “In evaluating cumulative impacts of foreseeable future development, it must be considered that this site would not support the level of total future development that the County anticipates on the remainder of the Mecca parcelf.]” Although the Corps qualifies this statement by adding “whether or not the Seripps Institute is built there,” the only inference supported by the record is that in its alternatives analysis the Corps is considering the County’s intended future development, rather than any possible future development. A.R. 2667. Unlike in its assessment of the County’s project, the Corps further considered the “secondary and cumulative” impacts of future plans associated with that alternative, such as the development of residential units on Mecca Farms because of limited options for residential development on the Park of Commerce site and “to satisfy [the] anticipated future need,” and the consequent extension of Seminole Pratt Whitney Road to access the residential development from the Park of Commerce. A.R. 2667. As to the Briger Parcel, the Corps considered “limited possible future expansion areas” among the secondary and cumulative effects of that site. A.R. 2666. The Corps also found adverse secondary and cumulative effects to include “induced growth, potential for increase in development on
The Corps stated that it had evaluated secondary and cumulative effects associated with developing the Mecca site, including induced growth, potential for increase in development on private parcels, and roadway expansions, but did not in fact discuss any such evaluation. A.R. 2663. Merely listing a series of “concerns” does not amount to the “hard look” NEPA requires.
Based on this analysis, the Corps concluded that the project as proposed, with the mitigation proposal, represented the least environmentally damaging practicable alternative. A.R. 2658.
Under the Clean Water Act, for a proposal that is not water dependent, as the one here, the Corps must presume that practicable alternatives exist that do not involve special aquatic sites, unless clearly demonstrated otherwise. 40 C.F.R. § 230.10(a)(3). In addition, the Corps may not not issue a permit for the discharge of dredged or fill material “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). Because the Corps’ alternatives analysis was not properly limited in scope, the Court cannot ascertаin whether these considerations were adequately addressed.
d. Benefits
In addition, the Corps’ benefits analysis exceeded the scope of the impacts analysis as required by its own regulations and by regulations under the Clean Water Act. 34
The Corps found that “the overall development of the site with SCRIPPS research biotechnological park would be a considerable economic benefit to the area.” A.R. 2645. The Corps noted “economic as well as quality of life benefits ... expected to occur in the general area as a result of new jobs being created, home sales and homes being constructed, and potential future development of a town center with retail stores, the operation [of] a local hospital, and educational opportunities for the public.” A.R. 2637. Among the benefits described by the Corps were the construction of a campus for higher education. A.R. 2637. However, it is not clear from this record that such a campus is part of the initial phase of development.
Importantly, the Corps’ finding that the project “is estimated to accommodate approximately 18,000 jobs on the site” is based not on this first phase of the project, but on the entirety of the project as projected by the County.
35
A.R. 2645; 2633. Rather, as to phase one, the record shows
In the EA, the Corps also finds that the County has evaluated the cost to the taxpayers and expects an economic benefit to the area as a result of this development. A.R. 2676. The only cost-benefit analysis in this record, however, contemplates the development of the entire Research Park.
While courts must defer to agency determinations that are supported by the record, they also duty-bound to “overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself.”
Sierra Club v. Martin,
V. CONCLUSION
By focusing an agency’s attention on the environmental consequences of a proposed project, “NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.”
Robertson,
In this instance, the Corps’s failure to consider the impacts of the planned extension of PGA Boulevard, and to base its finding of independent utility on adequate support in the record render its finding of no significant impact arbitrary and capricious. Even if the Corps properly limited the scope of its analysis to the 535-acre project, by failing to adequately examine the reasonably foreseeable indirect and cumulative effects of the proposed project, the Corps failed to take the requisite “hard look” at all relevant environmental concerns. In addition, the Corps’ Environmental Assessment was critically deficient because its alternatives and benefits analysis did not match the scope of its impact analysis.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendants’ Motion for Summary Judgment (DE 39) is DENIED; Plaintiffs’ Motion for Summary Judgment (DE 41) is GRANTED; it is further
ORDERED AND ADJUDGED that within ten (10) days of the date of entry of this Order, all parties, including the County and Scripps, shall submit memoranda of law not to exceed fifteen (15) pages in length addressing the issues of remedies; copies of the memoranda shall be promptly served on other parties by facsimile, hand delivery or electronic means; it is further
ORDERED AND ADJUDGED that within five (5) days of service, the parties shall file and serve any responsive memo-randa of law not to exceed ten (10) pages in length; copies of the memoranda shall be promptly served on other parties by
Notes
.As this case involves the Court's review of administrative action, the Court denied in part the joint motion by Palm Beach County and The Scripps Research Institute to intervene as parties, granting them status as Amici Curiae during the merits phase of the case and status as parties during any remedial phase. (DE 37.)
. Portions of the administrative record will cited as "A.R. [page number(s) ]."
. The nomenclature in this case becomes somewhat confusing, in that County documents refer the to entire planned development as “The Palm Beach County Biotechnology Research Park,” while the Corps refers to the 535-acre proposed project as the "Bio
For clarity, the Court here uses "The Palm Beach County Biotechnology Research Park” or "Research Park" to refer to the entire planned development. The Court refers to the proposed 535-acre project as "the proposed project,” "the 535-acre project,” or "phase 1.”
. According to news reports, before Mecca Farms was selected definitively as the site, the BDB had also acquired land rights to the adjacent Vavrus Ranch parcel. A.R. 2192.
. An initial application covering 414 acres of the site was filed in May 2004, but was subsequently amended to cover 535 acres in June 2004. A.R. 2683. The Corps requested additional information, which it received in July 2004, at which point the Corps considered the application complete. Id.
. The Court found only one public comment in the record in support of the proposed development.
. On December 8, 2004.
. On October 13, 2004. A.R.1920 — 1892.
. The Corps noted that it would evaluate and process any proposed future road construe
. The Corps further found that the permit authorizing discharge complies with the Section 4040(b)(1) guidelines. A.R. 2630.
.
See also Wyoming Outdoor Council Powder River Basin Resources Council v. U.S. Army Corps of Eng'rs,
. Except as otherwise provided, "no discharge of dredged or fill material shall be permitted unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.” 40 C.F.R. § 230.10(d)
. The regulations further provide that:
The district engineer is considered to have control and responsibility for portions of the project beyond the limits of the Corps jurisdiction where the Federal involvement is sufficient to turn an essentially private action into a Federal action. These are cases where the environmental consequences of the larger project are essentially products of the Corps permit action.
Typical factors to be considered in determining whether sufficient "control and responsibility” exists include:
(i) Whether or not the regulated activity comprises "merely a link” in a corridor type project (e.g., a transportation or utility transmission project).
(ii) Whether there are aspects of the upland facility in the immediate vicinity of the regulated activity which affect the location and configuration of the regulated activity.
(iii) The extent to which the entire project will be within Corps jurisdiction.
(iv) The extent of cumulative Federal control and responsibility.
33 C.F.R. Part 325, Appendix B § 7(b)(2).
. The Ninth Circuit reached this conclusion by finding the actions to be “connected” under CEQ regulations for preparing an EIS.
. NEPA requires agencies to prepare an Environmental Impact Statement on any major federal action with significant impact on the environment. "Major Federal action” is defined to include "actions with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 CFR § 1508.18. In this case, it is undisputed that the major federal action is the Corps' permit, which allows the County to proceed with the 535-acre development which includes filling 21.3 acres of jurisdictional wetlands.
. That section, in full, provides that:
(a)Actions (other than unconnected single actions) which may be:
(1)Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:
(i) Automatically trigger other actions which may require environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously-
(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.
(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.
(3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.
(b) Alternatives, which include: (1) No action alternative.
(2) Other reasonable courses of actions.
(3) Mitigation measures (not in the proposed action).
(c) Impacts, which may be:
(1) Direct;
(2) indirect;
(3) cumulative.
. The Corps notes that currently, PGA Boulevard is four miles east of Mecca Farms. A.R. 367. The Corps also cites to a news report that as of December 2004, the widening of PGA Boulevard had been rejected as prematurе, and that current zoning did not support it.
. The County in its May 2004 Application had proposed the road as ending in a cul-de-sac.
. The plaintiffs in that case relied on a provision of the Department of Transportation Act of 1966, 23 U.S.C.A. § 138 (Supp.1971), which provided for that agency's policy to preserve parks, natural refuges and other recreation areas.
. The Corps based its conclusion that development on Mecca and Vavrus would occur regardless on the bare assertion that Mecca “would be a preferred site for development under Corps regulations” and Vavrus "would clearly be developable under the Corps regulations.” A.R. 2684.
. A.R. 482 (copy of postcard to the County indicating the Corps’ receipt of the Application dated March 11, 2004); and A.R. 223 (email dated March 12, 2004 stating that Corps Project Manager received the Scripps Application). According to the EA, the Corps did not deem the County’s Application filed, however, until May 2004.
. Apparently in response to an article that appears in a newspaper, a member from the public submits the first comment in this administrative record regarding the project. She states, "This gets more interesting, when even the Army Corps of Engineers will lower their standards to expedite permits for building in the wetlands so that Scripps can have 545 people employed by the end of 2006.” A.R. 236.
. Although the Corps' Index to the Administrative Record dates this fact sheet on or about April 28, 2004, the Court notes that the fact sheet also states that the Corps has granted the permit and describes the County's mitigation plans.
. When asked whether the proposal was a phase of a larger project in the Application, the County responded, 'no.”
. Phase I in the Resolution is defined by reference to the TCRPC Council’s DRI Assessment Report, revised Exh. MP-5. Phase I will only require extension of Seminole Pratt Whitney Road. A.R. 343.
. The email noted that certain members of the EPA were not comfortable with the Corps’
. The Corps, however, is not entirely consistent on this point, at other times in the EA stating that it is "aware that future development and constructiоns activities may occur in the area if this permit is issued,” and that "[i]f the biotechnology research park develop-men! were to occur on the Mecca Farms site, the increase in development on the available private lands, including Vavrus Ranch, would occur because of the development pressures.” A.R. 2685; 2661.
. An "interchange” was defined as a transaction where the federal government and "another person” exchange lands or interests in lands of approximately equal value without formal appraisal.
. In a December 9, 2004, the Corps Project Manager stated in an email that she was meeting with a County representative on that day to discuss Scripps and “the next phases of Mecca,” including a power substation. A.R. 2110.
In the EA, the Corps noted the County's plans to construct a power substation in the southeast corner of the J.W. Corbett Wildlife Management Area to supply a permanent power source "for the overall development on the Mecca Farms parcel.” The Corps, how
. The Court notes that whereas the County repeatedly submitted materials to the Corps indicating that the proposed project was to serve as an "anchor” for development of a biotechnology and development park, the Corps removed all references to TSRI as an anchor in its public notices and descriptions of the project purpose. See A.R. 1074; 1152.
. The Court notes that the
Park County
interdependence test for determining when a cumulative impact EIS must be performed does not answer the threshold question of what cumulative impacts the Corps must consider when making a finding regarding significance. In
Fritiofson
v.
Alexander,
When defining the scope of an EIS, the CEQ regulations do limit consideration of cumulative actions to those that are actually proposed. Those regulations provide that "[t]o determine the scope of environmental impact statements, agencies shall consider ... Cumulative actions, which when viewed with other proposed actions have cumulatively significant imрacts and should therefore be discussed in the same impact statement.” 40 CFR § 1508.25.
As the
Fritiofson
court observed, however, at this threshold stage of determining significance, the language of the regulation is broader, requiring consideration of "the impact on the environment which results from the incremental impact of the action when added to other past, present,
and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.”
40 CFR § 1508.7. Based on this distinction, the Fifth Circuit found that cumulative impacts analysis at the significance stage must be broader, because "[t]he regulations clearly mandate consideration of the impacts from actions that are not yet proposals and from actions — past, present, or future — that are not themselves subject to the requirements of NEPA.”
. EA must "include brief discussions of the need for the proposal, of alternatives as required by sec. 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 C.F.R. § 1508.9(a).
. August 12, 2004 Alternative Site Evaluation Final Report.
. Under the CWA, the Corps must balance " benefits which reasonably may be expected to accrue from the proposal” against the proposal's "reasonably foreseeable detriments.” 33 C.F.R. § 320.4(a)(1).
. The County's DRI Application provided that "The Research Park is expected to produce an estimated 18,814 new Florida jobs [on Mecca Farms] by the year 2030. Of the 18,814 new jobs, more than 16,500 are projected to be created with the R & D (biomedical/biotechnological cluster) industry[.] (emphasis added)” A.R. 306, 295 (showing 18,896 permanent jobs by phase five).
. The DRI Application shows a total of 2,920 jobs. A.R. 297. The application form narrative stated that the number of jobs from the Scripps enterprise would constitute 5,555, whereas 11,000 more jobs would be created by related biotech/biomedical businesses. A.R. 168-67.
. Plaintiffs have also argued that the highly controversial nature of the project weighs against the Corps’ finding of no significance. “An action is highly controversial where there is substantial dispute about the size, nature or effect of a federal action rather than the existence of opposition to a use.’’
Georgia River Network v. U.S. Army Corps of Eng’rs,