Center for a Sustainable Coast et al v. U.S. Army Corps of Engineers et al

Filing 34

ORDER granting 26 Motion for Summary Judgment; denying 23 Motion for Summary Judgment. The Clerk of Court is directed to close this case. Signed by Judge William T. Moore, Jr on 3/31/15. (bcw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
I

CENTER FOR A SUSTAINABLE COAST)
and SAVANNAH RIVERKEEPER,
Plaintiffs,
CASE NO CV4134

V.

U.S. ARMY CORPS OF ENGINEERS;
LT. GENERAL THOMAS P. BOSTICK,
U.S. Army Corps of Engineers;
COLONEL THOMAS J. TICKNER, U.S.
Army Corps of Engineers,
Savannah Division;
Defendants.

ORDER

Before the Court are the parties' Motions for Summary
Judgment. (Doc. 23; Doc. 26.) For the following reasons,
Plaintiff's Motion for Summary Judgment (Doc. 23)

is DENIED

and Defendant's Motion for Summary Judgment (Doc. 26)

is

GRANTED. The Clerk of Court is DIRECTED to close this case.
BACKGROUND

This case centers on a 2012 decision by Defendant Army
Corps of Engineers' to reissue Programmatic General Permit
0083 ("PGPOO83"), which covers construction of singlefamily docks in Georgia's coastal counties. (Doc. 23 at 1.)
1

Because all of Plaintiff's claims are applicable to all
Defendants, the Court will refer to them collectively as
simply "Defendant."

Specifically, Plaintiffs object to Defendant's inclusion of
a provision that allows an individual to exceed the
permit's maximum dock area and length by up to 25% when
constructing the dock with grated decking materials
designed to allow more sunlight to pass though compared to
traditional wood-plank decking. (Id. at 1-2.) According to
the complaint, Defendant's decision violated the
Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-706,
Rivers and Harbors Appropriation Act of 1899 ("RHA"), 33
U.S.C. § 403, and National Environmental Policy Act
("NEPA"), 42 U.S.C. §§ 4321-4370f.
PGP0083, which was first issued in 1996, is a regional
permit encompassing Georgia's coastal counties. 2 (Doc. 21 at
9-10.) While Defendant formulates the requirements and
parameters of the permit, the Georgia Department of Natural
Resources, Coastal Resources Division ("CRD") is
responsible for administering the permitting program. (Id.
at 10.) After 1996, PGP0083 was reissued in 2001, 2007, and
2012 based on revisions and clarifications requested by
CRD. (Id. at 11.) According to Defendant, the requested
revisions were designed to streamline the permitting

2

The facts material to this case are contained in the
administrative record (Doc. 21) and are not in dispute.
2

process by matching PGP0083 1 s parameters to those contained
in CRD's permitting program. 3
The 2007 version of PGP0083 included a maximum dock
area of 3,000 square feet, with no limit on length, and a
50% credit for using grated decking materials. (Id. at 11.)
Therefore, the 2007 permit allowed an individual using
grated decking to construct a dock with a maximum area of
4,500 square feet. The 2012 permit retained the 3,000
square-foot limit, but also restricted the length of the
walkway to 1,000 feet. (Id.) In addition, the credit for
using grated decking was reduced to 25%, allowing a dock
with a maximum length of 1,250 feet and maximum area of
3,750 square feet. (Id.) According to Defendant, CRD
requested the reduction after determining that the 50%
credit for using grated decking was inaccurately inflated.
(Id. at 18.)
Unhappy with the credit for grated decking, Plaintiffs
filed suit in this Court challenging Defendant's decision
to reissue PGP0083 with the 25% credit. (Doc. 1.) In their
complaint, Plaintiff argues that Defendant violated the RHA
and APA by failing to both "adequately consider the shading
impact that docks have on the marsh vegetation and the

Construction of a new dock requires a permit from both
Defendant and the CRD.
3

public interest" (id. ¶ 40) and "reasonable alternatives to
the PGP's size exception" (id. ¶ 44) . In addition,
Plaintiffs contend that Defendant violated NEPA and the APA
by failing "to take a hard look at the shading impact of
grated docks." (Id. ¶ 47.) Finally, Plaintiffs reason that
Defendant violated the APA by including the 25% credit in
the face of opposition from environmental advocacy groups
and scientific data contradicting the effectiveness of
grated decking. (Id. ¶ 49.)
In their Motion for Summary Judgment, Plaintiffs argue
that Defendant's decision is arbitrary and capricious
because it relied on a 2012 study by Dr. Clark Alexander
("Alexander Study") that directly contradicts Defendant's
reasoning behind the 25% credit. (Doc. 23 at 11-17.) In
addition, Plaintiffs contend that the inclusion of the
arbitrary 25% credit violates the RHA and the NEPA. (Id. at
17-20.) In its Motion for Summary Judgment, 4 Defendant
maintains that its decision to reissue PGP0083 with the
CRD's requested modifications is consistent with both the
RHA and NEPA because Defendant reasonably concluded that
the overall area of marsh impacted by dock shading was
miniscule compared to the total area of marsh in the

Included in Defendant's Motion for Summary Judgment is its
response to Plaintiffs' motion.
4

counties subject to the permit.

(Doc. 26 at 9-19.)

Defendant reasons that it adequately addressed the
Alexander Study and public comments, ultimately deciding
that issuing the permit with a 25% credit was in the public
interest. (Id.)
ANALYSIS

I. STANDARD OF REVIEW
Summary judgment is granted when the movant shows that
there is no genuine dispute of material fact and that the
movant is entitled to judgment as a matter of law. Fed. R.
Civ. P 56(a). The evidence is to be viewed in the light
most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986). When reviewing an agency determination under the
APA, the Court looks only to those facts contained in the
administrative record. Pres. Endangered Areas of Cobb's
History, Inc. v. U.S. Army Corps of Eng'g, 87 F.3d 1242,
1246 (11th Cir. 1996) (citing Camp v. Pitts, 411 U.S. 138,
142 (1973))
However, the APA requires the Court to afford the
agency decision great deference when determining whether a
party is entitled to summary judgment. Id. As a result,

5

district courts may only "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. Under this
deferential "arbitrary and capricious" standard, the court
'must consider whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment.' " Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971)). The standard is exceedingly narrow and prohibits
the Court from substituting its judgment for that of the
agency. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). However,
the agency is required to "examine the relevant data and
articulate a satisfactory explanation for its action
including a 'rational connection between the facts found
and the choice made.' " Id. (quoting Burlington Truck Lines
v. United States, 371 U.S. 156, 168 (1962)) . Nevertheless,
"[i] f an agency considers the proper factors and makes a
factual determination on whether the environmental impacts

are

that decision implicates

significant or not,

substantial agency expertise and is entitled to deference."
Marsh, 490 U.S. at 376.
II. RIVERS AND HARBORS ACT
The RHA requires individuals to obtain a permit from
the Army Corps of Engineers ("Army Corps") for any
structure in or affecting navigable waters. 33 C.F.R.
§ 322.3. While there are several methods for obtaining a
permit, the Army Corps is authorized to issue permits "on a
nationwide or regional basis for a category or categories
of activities." Id. This type of permit is permissible
where "the general permit would result in avoiding
unnecessary duplication of the regulatory control exercised
by another Federal, state, or local agency provided it has
been determined that the environmental consequences of the
action are individually and cumulatively minimal." Id.
§ 322.2(f). The Army Corps decision to issue a general
permit must be based "on an evaluation of the probable
impacts, including cumulative impacts, of the proposed
activity and its intended use on the public interest." Id.
§ 320.4

7

III. NATIONAL ENVIRONMENTAL POLICY ACT
NEPA imposes two separate requirements on government
agencies. Bait.

Gas

& Elec. Co. v. Natural Res. Def.

Council, 462 U.S. 87, 97 (1983) . First, the agency is
required to " 'consider every significant aspect of the
environmental impact of a proposed action. " Id. (quoting
Vt. Yankee Nuclear Power Corp.

V.

Natural Res. Def.

Council, Inc., 435 U.S. 519, 553 (1978)). Second, the
agency must notify the public of the potential
environmental impacts presented by its proposed action and
explain how its decision-making addressed those impacts.
Id. NEPA does not place any actual limits on agency
decision-making, but only establishes procedures that the
agency must follow. Sierra Club v. Van Antwerp, 526 F.3d
1353, 1360-61 (11th Cir. 2008)
Compliance with NEPA requires the agency to first
determine whether the proposed action qualifies as a major
federal action with significant effect. Sierra Club v. U.S.
Army Corps of Eng's, 295 F.3d 1209, 1214-15 (11th Cir.
2002). Generally, the agency is required to prepare an
environmental assessment a part of ascertaining whether it
is engaging in a major federal action. Hill v. Boy, 144
F.3d 1446, 1450 (11th Cir. 1998) . Based on the
environmental assessment, the agency may reach one of two
8

conclusions: a finding that the proposed project will have
a significant effect on the environment, or a finding of no
significant impact. Sierra Club, 295 F.3d at 1215.
IV. PROGRAMMATIC GENERAL PERMIT 0083
The crux of Plaintiffs' argument concerning PGPOO83 is
that Defendant's decision to include the 25% credit for
using alternate decking materials is contrary to the
conclusions contained in the Alexander Study. Plaintiffs
contend that Defendant's inclusion of that credit violates
the APA because it is arbitrary and capricious. (Doc. 23 at
11-17.) In addition, Plaintiffs maintain that Defendant
violated the RHA because the inclusion of the 25% credit
renders Defendant's public interest determination arbitrary
and capricious. (Id. at 17-18.) Finally, Plaintiff contends
that Defendant violated NEPA because Defendant failed to
take a hard look at the permit's environmental impacts.
(Id. at 18-19.) In this respect, Plaintiff reasons that
Defendant misused the data from the Alexander Study and
failed to offer a cogent explanation for the 25% credit
despite the study's contrary conclusion. (Id. at 19.) The
Court, however, finds Plaintiffs' arguments to be without
merit.
The problem with Plaintiffs' argument is that their
interpretation of Defendant's decision finds little support

in the administrative record. What is clear is that the 25%
credit was first requested by the CRD to "match its
permitting program." (Doc. 21 at 10.) This, of course, is
unsurprising because the purpose of a Programmatic General
Permit is to "avoid[] unnecessary duplication of the
regulatory control exercised by another Federal, state, or
local agency provided it has been determined that the
environmental consequences of the action are individually
and cumulatively minimal." 33 C.F.R. § 322.2(f). The
purpose of Defendant's analysis under the RHA and NEPA was
to determine whether the individual and cumulative
environmental impacts of the proposed permit would be
minimal, id., and whether issuing the permit would have a
significant impact on the environment, Sierra Club, 295
F.3d at 1215.
In this regard, Defendant commissioned the National
Oceanic and Atmospheric Administration ("NOAh") to perform
a comprehensive study of total marsh acreage subject to
PGPOO83 and the percentage shaded by dock structures. (Doc.
21 at 64-106.) The results of this study indicated that in
2010 the maximum shade coverage caused by docks for any of
Georgia's coastal counties was 0.04%. Even accounting for
future dock construction, the study conservatively
determined that the maximum shade coverage by 2030 would

10

only be 0.09% in any county. Based on these findings,
Defendant concluded that shade from docks constructed under
PGPOO83, even with the 25 96

credit, would have a minimal

effect on the marsh because of the small percentage of
marsh actually affected. (Id. at 28.)
Plaintiffs challenge neither the accuracy of the NOAA
study nor Defendant's use of that information. Furthermore,
this Court's review has failed to identify any concerns
with Defendant's use of the NOAA study. Given the
negligible impact of dock shading for the Georgia counties
covered under PGP0083, the Court is unable to determine
that Defendant's decision to issue the permit is either
arbitrary and capricious, or in violation of the RHA and
NEPA.
Plaintiffs, however, contend that Defendant's decision
to blindly accept the CRD's request for the 25 9.- credit is
arbitrary and capricious because Defendant had an
obligation to verify the accuracy of the CRD's request and
the contrary conclusion contained in the Alexander Study.
(Doc. 32 at 3.) Again, the problem with Plaintiffs'
argument is that the administrative record does not support
their interpretation of Defendant's decision-making.
Despite Plaintiffs' narrative to the contrary, the
administrative record indicates that both the CRD and

11

Defendant used the Alexander Study as a refutation of the
50% credit contained in the 2007 version of

PGPOO83,

not

necessarily in support of the 25% credit. In addressing the
change from the 2007 permit, Defendant stated that "Dr.
Alexander's study results indicate that the 50% light
penetration 'credit' granted by the [2007]

PGP0083

for the

use of alternative decking material is inaccurately
inflated." (Doc. 21 at 18.) To be fair, Defendant does go
on to note that certain data from the Alexander Study, when
averaged, suggests that grated decking provides, on
average, 20% more light penetration during spring and
summer months. (Id.) Without specific reference to the
Alexander Study or its conclusions, Defendant notes that a
"25% light penetration 'credit' is being proposed as a
modification to the [2007] PGP0083."

(Id.)

Given the deference applicable to agency decisions,
the Court is unable to conclude that Defendant specifically
relied on the Alexander Study when deciding to include the
25% credit in

PGP0083.

It is equally plausible that

Defendant assessed the CRD's request in terms of the
individual and cumulative impacts posed by issuing PGP0083
with a 25% credit, finding the effects of its inclusion de
minimus in light of the exceptionally small percentage of
marsh subject to shade from dock structures both at that

12

time and in the future. As noted above, this assessment
would serve to satisfy Defendant's obligations under both
the RHA and NEPA. Giving Defendant the deference to which
it is entitled, its decision to include the credit is not
arbitrary and capricious because a reasonable reading of
the administrative record indicates that Defendant
determined the appropriateness of the

25

credit based on

its potential environmental impact rather than the
Alexander Study's conclusions.
Even assuming Defendant relied on the Alexander Study,
however, Plaintiffs' argument still fails because the study
lends support to Defendant's conclusion. The Alexander
Study calculated the percentage of photosynthetically
active radiation ("PAR") received by the marsh from both
indirect and direct light during times of shade. (Doc.
at 475.)

21

During the spring and summer months, when marsh

grass is most active, docks constructed of grated decking
resulted in 12

to 41

of total PAR compared to only 7

to

19% for traditional wood-plank decking. (Id. at 474-476.)
The variations are the result of season, dock orientation,
and dock height. (Id.) Based on the data, Defendant
concluded that grated decking results in the marsh
receiving an average of

20.75%

PAR during spring and

summer. Moreover, Defendant recognized that the Alexander

13

Study concluded that "none of the materials effectively
changed the negative impact of shading," but noted that the
study was conducted mostly on docks north of the permit
area. (Id. at 37.) Defendant reasoned that the higher
elevation of the sun in southern latitudes would result in
greater reduction of shading impacts. (Id.)
Given Defendant's calculations, the Court is unable to
conclude that reliance on the Alexander Study to support a
25% credit would be arbitrary and capricious. The Court
must afford Defendant great deference when reviewing its
assessment of the data and ultimate conclusion. Viewed in
this light, Defendant's decision to issue PGP0083 with the
25% credit did not violate the APA, RHA, or NEPA.
Plaintiffs' arguments to the contrary are based more in
their disagreement with Defendant's ultimate decision
regarding the 25% credit. However, neither Plaintiffs nor
this Court is permitted to substitute its decision for that
of Defendant. Accordingly, Plaintiffs' request for summary
judgment must be denied. For the same reasons, Defendant is
entitled to summary judgment.
CONCLUSION

For the foregoing reasons, Plaintiff's Motion for
Summary Judgment (Doc. 23) is DENIED and Defendant's Motion

14

for Summary Judgment (Doc. 26) is GRANTED.

The Clerk of

Court is DIRECTED to close this case.
SO ORDERED this

S/

day of March 2015.

WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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