Case Law Details
Sierra Club v. U.S. Army Corps of Engineers
Project Description:
The Suncoast Parkway is a 41-mile four-lane toll road that traverses Hillsborough, Pasco and Hernando counties in Florida. FHWA, together with the U.S. Army Corps of Engineers (Corps) and the Florida Department of Transportation (FDOT), issued a draft EIS in 1992, analyzing sixteen separate alternatives. FHWA initiated consultation with the U.S. Fish and Wildlife Service (FWS), and the FWS issued a no jeopardy opinion in 1993. FHWA issued a final EIS in 1994. Because FDOT announced its intention to construct the project without federal funding, FHWA ceased further participate in the project. In 1996, FDOT divided the project into several sections and submitted to the Corps a separate Section 404 permit application for each section. The Corps considered each of the applications to be components of a single application, but provided separate public notices and separate public hearings on each of the applications. After informal consultation with the Corps, the FWS determined that the project as described by FDOT complied with the terms and conditions established in the 1993 no jeopardy opinion. The Corps prepared an Environmental Assessment (EA) for each section. Each EA described the entire project and relied on FHWA’s prior EIS. The Corps then issued a Finding of No Significant Impact (FONSI) for each of the separate applications. In 1997, the Corps issued a Section 404 permit to FDOT for the first section. Construction on the project commenced in August, 1998.
295 F. 3d 1209
295 F. 3d 1209
U.S. Court of Appeals – 11th Circuit
06/25/2002
Suncoast Parkway
Highway
Case Summary
In October, 1998, the Sierra Club sent to the Corps a notice of intent to sue. Sierra Club filed suit in March, 1999, alleging that the Project would affect four species that had been determined not to be present within the Project area, and that the Corps should have prepared a Biological Assessment as part of its consultations with the FWS. Sierra Club also asserted that the Corps violated NEPA by failing to prepare a supplemental EIS for the Project. In response to the lawsuit, the Corps reinitiated consultation with FWS on the four species included in the Sierra Club lawsuit. The FWS confirmed that its prior consultations had considered the four species named by the Sierra Club’s lawsuit, and also confirmed that its consultations addressed the entire Parkway project. The district court denied Sierra Club’s request for a preliminary injunction and granted summary judgment in favor of the Corps. On June 25, 2002, the court of appeals affirmed the district court’s decision.
Key Holdings
NEPA
Supplemental EIS. The court found that the Corps properly determined that a supplemental EIS was not required. The court approved the Corps’ reliance on the prior EIS prepared by FHWA, noting that such reliance was a proper application of CEQ’s tiering regulation. 40 C.F.R. § 1508.28. The court also found that the mitigation measures outlined in the EAs and adopted as conditions of approval in the FONSIs rendered the impacts no longer significant.
Supplemental EIS. The court also rejected Sierra Club’s argument that the new alignment considered in the Corps EAs rendered reliance on the earlier EIS improper. The court found that because the new alignment was entirely within the study area in the earlier EIS prepared by FHWA, the new alignment neither constituted significant new information nor raised issues previously not addressed in the FHWA EIS.
Definition of Study Area. The Sierra Club also challenged the Corps use of the study area defined by the FHWA in its 1994 EIS process in preparing its own EAs for the permit applications. The court rejected this claim on two grounds. First, the court noted that, as a cooperating agency on the FHWA’s 1994 EIS, the Corps’ own regulations required it to ensure that the EIS produced by the lead agency could be adopted by the Corps in subsequent permitting processes. The court, applying the presumption that an agency acts in accordance with its own regulations, found that, as a cooperating agency, the Corps ensured that the study area defined in the FHWA EIS was adequate for the Corps’ purposes. Second, the court found that the record supported a finding that the Corps’ conducted the independent review of the FHWA required by CEQ NEPA regulations (40 C.F.R. § 1506.3) and its own regulations (33 C.F.R. Part 325) prior to incorporating it into its EAs.
Endangered Species Act
Biological Assessment. The court rejected Sierra Club’s claim that the Corps violated the ESA by not preparing a BA for the permit applications. The court found that because the ESA expressly allows an agency to use its NEPA documentation as a substitute for a BA, that the Corps was not required to produce both a BA and a NEPA document. The court then found that the FHWA EIS, relied upon by the Corps in its NEPA process, adequately evaluated the impacts of the project on the listed species. Thus, the Corps was not required to produce a separate BA as part of the Section 7 consultation on the permit applications.
File Attachment
Download the decision