Virginia Lawyers Weekly VA Lawyers Weekly
The 4th Circuit says a district court did not err in dismissing as moot a coastal conservation league’s challenge to actions by the owner of 485 acres of freshwater wetlands the league claims is being converted to saltwater wetlands, allegedly in violation of federal environmental laws.
Since 2009, the entire tract of land at issue has been owned by South Coast Mitigation Group LLC. Of approximately 700 acres, 30 percent is tidal salt marsh subject to tidal flow, while the remaining 70 percent, or the 485 acres, is separated from the Back River and its marsh system by man-made earthen embankments (the Embanked Tract) built 150 years ago to create rice fields. The earthen embankments include a variety of water control structures which can be opened in order to directly connect the Embanked Tract with the Back River and its tidal marsh system. South Coast possesses the sole legal right to operate these water control structures and is entitled to do so without any government oversight. South Coast controls when brackish water from the Back River and its tidal marsh system enters the Embanked Tract.
The present litigation stems from South Coast’s desire to connect the Embanked Tract with the Back River fork of the Savannah River and its tidal system to allow the entire almost 700-acre tract it owns to become a functioning tidal marsh integrated with the Savannah River. South Coast also desires to dedicate the site to use as a commercial tidal wetlands mitigation bank.
The Clean Water Act authorizes defendant U.S. Army Corps of Engineers to issue permits for the discharge of fill material into U.S. waters. The Corps verified that Nationwide Permit 27 applied to South Coast’s proposed action to impact 0.65 acres of waters of the U.S. and that placement of the excavated material from the embankments into the adjacent ditches and approved the final mitigation banking instrument in April 2013.
The district court agreed with South Coast that the case is moot. According to the court, the harm sought to be enjoined – preventing the intrusion of brackish water from the freshwater impoundments – has already occurred. In fact, the water inside the impoundments is more saline than the water plaintiff seeks to prevent from entering the impoundments.
Although given sufficient opportunity to present evidence challenging the salinity readings relied upon by the district court in making its mootness determination, the League did not do so. Allowing South Coast to level the embankments and place the fill dirt in the adjacent ditches will not make the water within the Embanked Tract any more saline than it currently is. The record on appeal does not support the view that granting the League the relief it seeks on any of its claims will likely prevent the water within the Embanked Tract from becoming more saline.
The League’s disagreement with the wisdom of the Corps’ challenged approvals in this case and the League’s general belief that saltwater mitigation banks are a bad idea for the environment is insufficient to establish jurisdictional standing to continue the current litigation.
We affirm the district court’s dismissal of this action as moot.
South Carolina Coastal Conservation League v. U.S. Army Corps of Engineers (Hamilton) No. 14-1796, June 17, 2015; USDC at Charleston, S.C. (Gergel) Catharine M. Wannamaker for appellant; Robert Lundman, USDOJ, for appellee. VLW 015-2-102, 22 pp.
