Environmentalists lose fight against developer over Georgia wetland damages

ATLANTA (CN) — An 11th Circuit panel handed a blow to a group of environmentalists Tuesday, upholding the dismissal of claims that a real estate developer landscaped over a wetland without proper permits.

In the unanimous opinion, the panel found the environmentalists’ complaint failed to contain sufficient facts to support their argument that the wetland had a continuous surface connection to a water of the United States.

“Without that element, the environmentalists’ claims fail,” U.S. Circuit Judge William Pryor wrote for the panel.

The Glynn Environmental Coalition, the Center for a Sustainable Coast and local resident Jane Fraser claimed the developer had approval from the U.S. Army Corps of Engineers to build an office building and parking lot near a hotel on St. Simons Island. But instead, Sea Island Acquisition landscaped over the half-acre that contained a wetland with sod, harming the surrounding habitat and decreasing the water quality of a nearby creek.

They provided expert testimony showing that the excess unabsorbed chemicals from fertilizing the sod is incorporated into surface runoff and ground water that eventually flows downstream into a salt marsh and Dunbar Creek.

“But those uncontested allegations tell us only that the wetland sits in some proximity to Dunbar Creek and that the flow of water moves generally from wetland to creek,” Pryor wrote.

The ruling stems from the U.S. Supreme Court’s 2023 decision in*Sackett v Environmental Protection Agency* , which held the Clean Water Act “extends to only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that they are indistinguishable from those waters."

To determine whether it needed a permit to fill the wetland, Sea Island requested a preliminary jurisdictional determination from the U.S. Army Corps of Engineers. The Corps determined that the parcel might contain “waters of the United States” subject to the Clean Water Act and allowed Sea Island to fill the wetland under a nationwide general permit.

The Corps may issue general permits for any category of activities involving discharges of dredged or fill material, as long it will cause only “minimal cumulative adverse effect” on the environment.

In their suit, the environmentalists sought declaratory judgments that Sea Island’s authority to fill the wetland under the permit had “expired without compliance.”

But that agreement involves only the Corps and the landowner, Pryor wrote, and under general contract law, only a party or intended beneficiary may sue to enforce the terms of the contract.

“That rule counsels against allowing the environmentalists to enforce the waiver. They were not a party to the preliminary jurisdictional determination, so they cannot invoke the waiver in that agreement,” Pryor wrote.

In a concurring opinion, the George W. Bush appointee wrote separately to emphasize that the Clean Water Act does not allow citizen suits to enforce permits issued under section 1344, like the one issued to Sea Island..

He noted that other provisions of the Clean Water Act authorize the Environmental Protection Agency to issue a compliance order or bring a civil action for any violations of unlawful discharge.

Pryor was joined on the panel by U.S. Circuit Judges Britt Grant, a Donald Trump appointee and Embry Kidd, who was appointed by Joe Biden.

The environmentalists won over a panel of the Atlanta-based appeals court three years ago, securing a unanimous decision reinstating their case against Sea Island Acquisition after it was first dismissed by a Georgia federal judge in 2021. Pryor was also a part of that decision and wrote that Fraser’s claims the developer had deprived her of the aesthetic pleasure of the wetland’s natural habitat were sufficient to establish an injury.

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