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Leon County commissioners to consider appeal Tuesday

After investing over $73,000 in legal fees, the county attorney for Leon County, Florida, is telling commissioners in Florida’s capital county the lawsuit against Grady County and the U.S. Army Corps of Engineers was “difficult.”
In a March 26 interoffice memo written by Leon County Attorney Herbert W.A. Thiele to members of the Leon County commission, Thiele states, ” . . . it is difficult to obtain a remand of a permit issued by the Army Corps of Engineers. The case is generally decided by a review of the permitting process and the parties do not get the opportunity to provide outside evidence to demonstrate the Corps’ potential errors. In other words, the judge is not supposed to quibble with the findings of the Corps, but rather is supposed to determine whether the Corps was ‘arbitrary and capricious’ in its findings. This is a high standard.”
Thiele also wrote, “If the judge can review the administrative record and find any ‘reasonable basis’ or ‘rationale’ for the Corps’ decision the permit stands. Thus, it was a high hurdle to begin with, especially as an Intervenor. Ultimately, we were essentially required to ‘prove a negative,’ and had to try to show the Court that despite all of the documents provided in the permitting process, the Corps still failed to fully consider the impact of this project on Leon County.”
According to Thiele, Leon County’s position is that the Tired Creek Lake will potentially impact three endangered mussel species and potential adverse effects on downstream water quality and water flow.
Thiele now says Leon County has the choice to accept the court’s ruling or appeal the decision to the 11th Circuit Court of Appeals.
Leon County commissioners are expected to address the matter at their next meeting, which is next Tuesday, April 10.
In a 52-page order filed Monday, March 19, 2012, in the United States District Court, Southern District of Georgia, Savannah Division, Judge Edenfield ruled in favor of Grady County and the U.S. Army Corps of Engineers in the suit challenging the federal 404 permit issued by the Corps to Grady County permitting the construction of the fishing lake.
Georgia River Network and American Rivers filed suit against the Corps in federal district court in November 2010, just over five months after the federal 404 permit had been issued by the Corps to Grady County. It was not until April 2011 that Leon County joined the environmental groups in the suit as a plaintiff.
Commenting on Thiele’s memo, Grady County Attorney Kevin S. Cauley said, “Grady County takes very seriously the impact its actions could have on the important downstream natural resources within and south of Grady County. To that aim, Grady County invested years and millions of dollars consulting with numerous environmental professionals known to be  the best in their fields prior to applying for a permit in 2006. Leon County, Tall Timbers and numerous other interested parties were invited to participate in that process early on. It was only after the preliminary review by the environmental professionals involved concluded that the project was feasible and positive that Grady County decided to pursue a permit from the Corps of Engineers.”
Cauley also noted, “Over the last decade this project received years of intense scrutiny from multiple federal and state agencies, in Georgia and Florida, that regulate the permitting process. Any party interested in the project was given ample time to submit comments and concerns for consideration by the Corps years prior to any permit decision. Each concern raised by Leon County during the comment period was specifically addressed by Grady County and the Corps. In the end, all the regulatory agencies with authority over this process accepted the Corps of Engineer’s determination that this project has no material negative impact on downstream resources.”
He went on to say, “The recent Court decision served as further scrutiny that the Corps followed all applicable laws in issuing the permit.  Immediately upon hearing of Leon County’s intent to join the environmental groups challenging the permit last February, Grady County tried diligently to meet with the Leon County Board. I had tried to explain in correspondence with their attorney that the suit would not allow the opportunity for additional fact finding and that open dialogue with our environmental consultants could serve to educate them on the science behind the project.  Although we were disappointed the Leon County Board refused to discuss the issues directly with us prior to taking such aggressive action, we hope the Court’s decision gave them the confirmation they were seeking.”
While Cauley remains confident the permit could be defended on appeal, the Grady County attorney says it would be wasteful for Leon County to appeal the court ruling.
“Grady County is very pleased with the Court’s decision as it has served to confirm what we have known all along. It is our hope that we can now move forward with this project without any further wasted expense from prolonged litigation,” Cauley said.

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