Fight over developer damage to Georgia wetlands returns to 11th Circuit

ATLANTA (CN) — Attorneys for two Georgia environmental groups asked the 11th Circuit on Thursday to once again overturn a federal judge’s dismissal of their lawsuit pursuing Clean Water Act violations against a real estate developer they say landscaped over a wetland without proper permits.

The Glynn Environmental Coalition, the Center for a Sustainable Coast and local resident Jane Fraser 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. But a new panel of the appellate court appeared wary of siding with the plaintiffs again, this time in a challenge to the lower court’s finding that the land at issue no longer qualifies as a wetland under the law.

Fraser and the environmental groups have claimed the developer had approval from the U.S. Army Corps of Engineers to build an office building near a hotel but landscaped over .49 acres of land on Georgia’s St. Simons Island instead, harming the surrounding habitat and decreasing the water quality of a nearby creek.

Chief U.S. Circuit Judge William Pryor, a George W. Bush appointee, told attorneys for the plaintiffs that he did not see facts in their 2019 lawsuit to refute the determination that the land is not a wetland.

U.S. District Judge J. Randal Hall dismissed the case for a second time after finding that the parcel of land does not fall under the Clean Water Act’s wetlands protections because it does not have a “continuous surface connection” with Dunbar Creek — an adjacent body of water. The two areas are separated by a salt marsh, upland, two roads and a median.

Hall’s ruling stemmed from the U.S. Supreme Court’s 2023 decision in Sackett v Environmental Protection Agency , which rejected an established test to determine whether a piece of land is a wetland under the Clean Water Act. The high court adopted a test that says the law extends only to wetlands that are indistinguishable from waters of the United States through a continuous surface connection.

Arguing on behalf of the plaintiffs, attorney John Brunini of Butler Snow urged the panel to overturn Hall’s dismissal because the pleadings in the case were filed before Sackett was decided. Brunini and Laura Heusel, another attorney representing the plaintiffs, argued that the Supreme Court decision should not have been applied retroactively to their case.

“After several years of litigation and multiple trips to this court, the citizens are now being exposed to dismissal for not meeting a test that wasn’t the test when we filed our complaint,” Brunini said. “That’s not law school, that’s kindergarten.”

Pryor and U.S. Circuit Judge Britt Grant, an appointee of Donald Trump, were unsympathetic to Brunini’s arguments. Both judges suggested throughout the hearing that the plaintiffs should have sought leave to amend their complaint before Hall handed down his ruling.

Attorney John Fortuna of Jones Fortuna, who represents Sea Island Acquisition, argued the plaintiffs would be unable to present facts to pass the Sackett test even if the case were sent back to the lower court.

“They would have to allege facts showing how it is that there’s a continuous surface connection between a wetland that’s separated from another wetland by a road and an underground storm drain. I don’t know how they allege that,” Fortuna said.

But Heusel told the panel that the land and the adjacent salt marsh were connected via tidal flow between culverts and pipes.

“This was a tidally-influenced wetland,” Heusel said. “The Sackett decision included a note that accounted for tidally-influenced waters and specifically said that in tidally-influenced systems the ebb and flow of the tide does not disconnect jurisdiction for the purposes of determining whether a wetland is a jurisdictional water of the United States.”

Pryor appeared unconvinced by Heusel’s arguments, bluntly saying, “I don’t see how that establishes a continuous surface connection.”

Fortuna told the panel that the existence of underground pipes and culverts does not establish that a continuous surface connection exists between the land and the salt marsh.

“The documents attached to the complaint make it crystal clear that the only connection between the wetland on one side of the road and the wetlands and the marsh and Dunbar Creek on the other side of the road is a storm drain,” Fortuna said. “And according to the plaintiffs’ expert, that storm drain appears to only flow when it rains.”

Grant and Pryor were joined on the panel by U.S. Circuit Judge Embry Kidd, a Joe Biden appointee. The panel did not signal when a decision would be issued in the appeal.

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