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Army Corps of Engineers argues against revoking Cypress Creek Town Center permit

WESLEY CHAPEL — Revoking an environmental permit for the proposed Cypress Creek Town Center, which has been at the heart of a lawsuit between environmentalists and the Army Corps of Engineers, would be "disruptive" and is outside a judge's authority, the federal regulators argue.

The Corps, which was given 20 days last month to file a response to a federal ruling that it violated two of three federal laws as alleged by the Sierra Club, filed a brief this week saying that a judge should let the agency review the permit and make a decision on any corrections rather than force it to be revoked.

"A direction to the Corps to revoke the permit and order remediation could only be made based on the court's own conclusions with regard to the potential environmental impacts of the project and would thus necessarily involve a substitution of judgment for that of the agency," attorneys for the Corps wrote. As noted in case law, "such a procedure clearly runs the risk of propelling the court into the domain which Congress has set aside exclusively for the administrative agency."

The Corps also said ordering revocation would be premature because the agency could always change the requirements to force developers to do what is needed to comply with the law.

The Corps also noted that the current permit conditions prevent any damage to the creek and agency oversight is needed to maintain the stormwater management system.

Revoking the permit, "would be more disruptive than simply leaving the permit in place pending remand."

The Corps' response came after U.S. District Judge Royce C. Lamberth ordered it to revise its permit for the 500-acre Cypress Creek Town Center, finding the agency failed to ensure the protection of wetlands near the site at Interstate 75 and State Road 56.

Lamberth gave a harsh assessment of the Corps in a memorandum that accompanied the order, saying it failed to fulfill its legal duties and calling "it a familiar course of action when processing permit applications."

The judge wrote that the Corps failed to conduct an in-depth study that takes a "hard look" at potential environmental concerns and make a "convincing case" that there would not be significant environmental impacts. It also failed to consider the "cumulative effects" of proposed actions, he said.

The judge ordered the Corps to craft a remediation plan. The Sierra Club, which filed the legal challenge, would be able to offer its input. Then the judge will determine what conditions to impose on the project. The judge also asked the Corps to provide any arguments against granting injunctive relief to the Sierra Club.

The Corps said in its brief that the club failed to ask up front for any injunctive relief and therefore wasn't legally entitled to it. It also said there was no evidence the group was being harmed by the status quo.

Developers the Richard E. Jacobs Group of Cleveland and Sierra Properties, who are intervenors in the case, echoed that argument in a separate brief also filed this week. They said revoking the permit would be impractical because affected wetlands had already been filled and mitigated for.

Developers also argued that revoking the permit would jeopardize the proposed 1 million-square-foot project, which before the permit's suspension employed 150 workers.

"During full build out, up to 1,000 people will work at the site.

"When completed, (the mall) is expected to provide 4,000 jobs, and annual tax revenues of approximately $6 million for Pasco County and its schools," attorneys for the developers wrote. "The final judgment this Court enters in this case will affect not only the Corps and the Developers, but also Pasco County and its residents."

Developers have said in the past that they remain committed to the project and have spent $21 million widening part of State Road 54.

The project has been controversial from the start. Environmentalists raised concerns about pollution in a nearby creek that feeds the Hillsborough River. The river is a source of Tampa's drinking water.

The Corps granted the permit in 2007. The Sierra Club then sued the Corps. Then in February 2008, the Corps suspended the permit after muddy water began spilling into the creek. Work stopped for 18 months.

The developers then paid about $297,000 in fines for violating the federal Clean Water Act.

Work recently resumed after a settlement in that matter was reached. In the settlement, the Corps said the discharge was due to "human error" and not any flaw in the developers' plans.

That prompted U.S. Rep. Kathy Castor, D-Tampa, to call for a review by the U.S. Environmental Protection Agency. The agency agreed with the Corps' findings.

Denise Layne of the Tampa Bay Sierra Club called the responses from the developers another example of "greed, greed, greed." She also took issue with the Corps' assertion that it can make things right.

"They're saying, 'Trust us,' We said you were wrong — two times," she said, referring to the granting and reinstating of the permit. "You can't trust government to take care of the environment. You just can't."

Layne also said that the group is not simply antimall.

"We're not out to make everybody miserable," she said. "We just want to protect a water source."

Lisa Buie can be reached at buie@sptimes.com or (813) 909-4604.

Army Corps of Engineers argues against revoking Cypress Creek Town Center permit 07/22/10 [Last modified: Thursday, July 22, 2010 8:41pm]
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