Posted January 7, 2019
A federal judge is allowing the St. Johns Riverkeeper to argue why a U.S. Army Corps of Engineers flooding analysis in Charleston, S.C., should be admitted as evidence in its lawsuit seeking to block the federal agency from deepening Jacksonville’s shipping channel.
The issue is to some degree a technical one, but the Charleston study speaks to the heart of the disagreement between the Riverkeeper and the Army Corps in a legal battle that is bleeding into 2019 as the 11-mile dredging project continues moving forward.
The Riverkeeper — a nonprofit environmental watchdog group — believes the Army Corps fell short on studying how deepening the St. Johns River from 40 to 47 feet could impact flooding in Jacksonville during major storms. The nonprofit believes that comparing the study the Army Corps did locally to a more in-depth analysis the agency conducted for its Charleston dredging project would show the discrepancy.
The Army Corps disagrees and says the analysis it conducted on the Jacksonville dredge over the course of a decade is more than enough for the court to weigh the issue, and that including the Charleston study is unnecessary.
U.S. District Judge Marcia Morales Howard ruled in November that she would allow the Riverkeeper and the Army Corps to argue the issue out in legal filings before she makes a final determination. Deciding whether the Charleston study could be admitted as evidence would in essence require her determine whether the Army Corps flooding analysis is flawed, she wrote.
The argument is “inextricably intertwined with the underlying merits of Riverkeeper’s claims,” Howard wrote.
She hasn’t yet weighed in on legal motions both sides filed in December.
Generally speaking, challenging an Army Corps study in court is an uphill battle. The Army Corps is legally obligated only to take a “hard look” at environmental issues stemming from major projects it undertakes, a broad mandate that doesn’t spell out what kind of decisions the Army Corps must make or even that the least environmentally harmful options must be taken.
Last year, Howard refused to block the Army Corps from starting the dredging project but said the Riverkeeper could refine and continue to argue whether the Army Corps’ flooding analysis was adequate.
In that ruling, Howard said the evidence the Riverkeeper presented in its request for a preliminary injunction did not show the Corps analysis was “arbitrary and capricious” — the legal standard necessary for a judge to rule against the Army Corps.
The Riverkeeper believes the Charleston study could be significant evidence.
Jacksonville and Charleston were part of an Obama-era initiative called “We Can’t Wait” that fast-tracked harbor deepening studies along the East Coast by 14 months. Charleston’s project, which began in March, seeks to deepen the harbor from 45 to 52 feet.
A 2016 storm surge study for the Charleston project found potential storm surge water level increases in the harbor ranging between about 1.2 inches to a maximum of about 3.6 inches — the lower end of what the Army Corps expects could happen in Jacksonville, where water levels could increase between 3 and 8 inches depending on how close parts of the river are to the dredging project.
The initial finding in Charleston, however, was enough for the Army Corps to “proceed with a more refined and more accurate analysis to quantify the potential project impacts” that “includes the floodplain areas surrounding the Charleston Harbor estuary.” Those findings were spelled out in a “Phase II” storm surge analysis.
In Jacksonville, the Army Corps dismissed the potential increases in water levels without indicating the need for a more refined study.