In response to allegations made April 17 — that the company violated its permits, and the Clean Water Act, in the process of filling nearly a half-acre of wetlands adjacent to the Inn at Sea Island on St. Simons Island — Sea Island Acquisition filed a motion May 9 requesting the federal court completely dismiss the complaint.
Glynn Environmental Coalition and the Center for a Sustainable Coast argued in their complaint that Sea Island obtained permits to fill these wetlands under the assertion it would build a commercial structure on the 0.49 acres, and as such it would qualify under a nationwide permit instead of individual permitting, which would have involved more perceived time, effort and money.
There is no such building presently on that property.
Attorney James B. Durham, representing Sea Island, argues that under five different considerations the lawsuit should not continue past this point.
Durham states “the heart of the complaint” is the company violated Nationwide Permit 39, which, according to the Army Corps of Engineers, authorizes “discharges of dredged or fill material into non-tidal waters of the United States for the construction of expansion of commercial and institutional building foundations and building pads and attendant features that are necessary for the use and maintenance of the structures.”
Durham argues Sea Island met the permit conditions.
According to the motion, “If there had been any violation of a condition — which there wasn’t — it was within the Army Corps of Engineers’ authority to determine whether Sea Island’s fill violated the permit.”
Further, “The Corps made its determination when, in 2016, it determined that Sea Island’s intention to build a future structure on the fill satisfied the conditions of the permit, and therefore Sea Island was not in violation. … Sea Island filled the area in the applicable time limit, and contrary to the plaintiff’s contention, there is no time limit on completing the structure.”
Even before the motion gets to this point, Durham argues that there’s no independent authorization of citizen suits for alleged violations of nationwide permits, so the court need not even concern itself with the arguments contained within the complaint, as the plaintiffs don’t have a right to sue in the first place.
As explained in the motion, “A citizen may sue ‘the administrator (of EPA),’ and then only where there is an alleged failure of the administrator to perform a non-discretionary act or duty under the CWA. … A citizen suit may be brought against a person or entity who violates an ‘effluent standard or limitation’ or who violates an order issued by ‘(t)he administrator or a state’ with respect to an effluent standard or limitation. …
“Consequently, plaintiffs may only bring a citizen suit against Sea Island for violation of an effluent standard or limitation, or for violating an order dealing with the same,” but the complaint doesn’t allege Sea Island violated an order of the EPA administrator or the state.
So, the motion states not only do the plaintiffs lack standing, they “fail to state a claim for relief under the CWA because their anticipated harm to ‘future enjoyment’ of an offsite recreational area does not rise above the speculative level; and the repetitive nature of their consistently reincorporated claims, interspersed with irrelevant theory of recovery that is not in fact actionable at law, renders their complaint an impermissible ‘shotgun pleading.’”
Sea Island requests the court grant the motion, dismiss all the plaintiffs’ claims, and that Sea Island receive a financial award for costs incurred in the lawsuit.