Case Law Updates on the Environment (CLUE)
Case Law Update Details
Friends of Etna Turpentine Camp, Inc. v. U.S. Department of the Interior
U.S. District Court - Florida
The project is a 13.5-mile extension of the Suncoast Parkway, a tolled four-lane divided highway in Florida, carried out by the Florida Department of Transportation (FDOT). The new highway would pass through the location of the Etna Turpentine Camp, a former turpentine still complex and town in the early 1900s that was discovered in the 1990s and listed on the National Register of Historic Places in 2009. Because the project area was habitat for the eastern indigo snake (a threatened species) and the gopher tortoise (a candidate species for federal listing), FDOT applied to the U.S. Fish and Wildlife Service (FWS) for an incidental take permit. FWS prepared an EA, biological opinion, and FONSI, and issued the incidental take permit in 2017. FWS and the State Historic Preservation Officer also entered into a historic preservation memorandum of agreement to mitigate unavoidable impacts to the Etna Turpentine Camp. FDOT began construction on the project in February 2018.
The plaintiff claimed that FWS violated NEPA by failing to consider the impacts of another reasonably foreseeable road project. The plaintiff also asserted that FWS should have considered the impacts of an eight-lane highway, rather than the four-lane project, because the regional state water management district issued a drainage permit for up to eight lanes. The court denied the plaintiff’s motion for a preliminary injunction, concluding that the plaintiff did not demonstrate a likelihood of success on the merits of its claims. Shortly thereafter, the plaintiff voluntarily dismissed the case.
Segmentation/Connected Action. The plaintiff’s principal argument was that FWS violated NEPA by failing to consider the impacts of the Coastal Connector, another proposed highway. The court held that the Coastal Connector was not related to the Suncoast Parkway because they would not directly connect; rather, the proposed alignments for the Coastal Connector would terminate roughly three miles from the terminus of the Suncoast Parkway extension. The court also held that the Coastal Connector was not a reasonably foreseeable future action because it was still in the early planning phase with no alignment selected, and FDOT stated that it had no current plans to pursue the Coastal Connector. In addition, the court concluded that the EA did not improperly exclude the Coastal Connector from its analysis because the Suncoast Parkway was a stand-alone project that connected logical termini, had independent utility, and did not restrict consideration of alternatives for other reasonably foreseeable transportation projects:
“Here, Suncoast II will connect an existing toll road, the original Suncoast Parkway, with State Road 44, that connects to I-75; it will provide a connection between Citrus County and the Tampa Bay area; it will reduce traffic congestion; and it will result in 597 fewer vehicle hours traveled per day. Moreover, FDOT offered unrefuted evidence that Suncoast II is itself ‘economically feasible’ as a stand-alone project.”
Project Scope. The plaintiff also argued that FWS should have considered impacts from an eight-lane highway, rather than the proposed four-lane project, because the regional state water management district had issued a drainage permit to FDOT that authorized up to eight lanes. The court explained that although the permit authorized eight lanes of drainage, FDOT had applied for a drainage permit for a four-lane highway, and FDOT would need to apply for a permit modification if the project would be expanded to eight lanes. The court held that there was no evidence to suggest that it was reasonably foreseeable that the Suncoast Parkway would be expanded to eight lanes. Thus, the court concluded, it was not arbitrary or capricious for FWS to have evaluated the impacts of a four-lane highway.
Preliminary Injunction. The court concluded that the plaintiff was unlikely to succeed on the merits of its two arguments that FWS violated NEPA and, therefore, denied the plaintiff’s motion for a preliminary injunction.