WESLEY CHAPEL — A federal appeals court has issued a mixed ruling on the permit for the Cypress Creek Town Center, with both the developer and the environmentalists finding cause for celebration.
The court found the U.S. Army Corps of Engineers properly examined the impacts to wetlands and waterways in granting the permit for the regional mall at Interstate 75 and State Road 56. It reversed much of a district judge's ruling last year that revoked most of the permit on those grounds.
"The Jacobs Group is confident that this development will now finally proceed forward," Thomas P. Schmitz, of The Richard E. Jacobs Group, wrote in an e-mail Wednesday to Pasco County officials.
But the appellate judges raised a new roadblock: The Corps and the developer must address the project's impact to the eastern indigo snake, a threatened species.
The 17-page ruling by the United States Court of Appeals, District of Columbia Circuit, cites the expert opinion of Kenneth Dodd, a staff herpetologist with the U.S. Fish and Wildlife Service. Dodd said the mall site is an important "wildlife corridor" linking protected indigo snake habitats. He argued the Corps failed to evaluate how the project would create "fragmentation" of the habitat, which can lead to more snake deaths on roadways.
Dodd's statement "qualifies as the sort of 'relevant and significant' public comment to which an agency must respond, lest its action be arbitrary and capricious," the appellate court wrote in its Tuesday ruling.
In order to reinstate the permit, the Corps must demonstrate the project is "not likely to adversely affect" the eastern indigo snake, the court said.
That won't be a trivial matter, said Denise Layne of the Sierra Club of Tampa Bay, which filed the legal challenge to the permit. She said the plans for the 1-million-square-foot mall do not include enough room for a wildlife corridor.
"The fact that they still lost part of this lawsuit is an issue, a huge issue," said Layne, arguing it will be tough for the developer to meet the wildlife guidelines. "They're not getting a walk in the park."
But the Jacobs Group said it welcomed the challenge.
"We are pleased and gratified that the Appellate Court upheld virtually all of the U.S. Army Corps of Engineers' original decision-making in issuing the permit for Cypress Creek Town Center," Schmitz wrote in his e-mail to county officials. "And, we pledge to work with and fully cooperate with the Corps and the U.S. Fish and Wildlife Service on the one remaining environmental matter that was remanded for review."
The project has been mired in legal battles since the Corps granted the mall permit in 2007. The Sierra Club sued the Corps, and in February 2008, the Corps suspended the permit after muddy water began spilling into a nearby creek that feeds the Hillsborough River, a source of Tampa's drinking water. Work stopped for 18 months and the developers ultimately paid about $297,000 in fines for violating the federal Clean Water Act.
U.S. District Judge Royce C. Lamberth issued a blistering ruling in August 2010 revoking much of the permit. He argued 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. The Corps' assertion that the mall would not create a cumulative impact "flies in the face of logic," the judge wrote.
"It not only may have an impact, it already has," he wrote, alluding to the Clean Water Act violation.
But this week's appellate court ruling found the Corps "did satisfy the demands of the three relevant statutes," except for the impact to the Eastern Indigo snake.
"The Richard E. Jacobs Group remains committed to this project, this location, and to bringing new jobs and tax revenues to Pasco County," Deanne Roberts, a spokeswoman for the developers, said in a prepared statement Wednesday.