water log 30:3

WATER LOGVolume 30, Number 3 September 2010A Legal Reporter of the Mississippi-Alabama Sea Grant Consortium

Wildlife Advocates DemandAccountability in FEMA

Decisionmaking

No Jetskis in Gulf Islands National Seashore: New Rule Violates Organic Act

Gulf of Mexico Aquaculture Plan:Advocacy Group Lacks Standing to Sue

2 SEPTEMBER 2010 • WATER LOG 30:3

WATER LOG

As fall approaches, we are reminded of the fifthanniversary of Hurricane Katrina. Althoughfive years have passed, disaster-related litigationcontinues to make its way through the courts.In one such article, April Hendricks discussesMississippi’s authority to erect seawalls for hur-ricane-related restoration efforts in Bay St.Louis, Mississippi. Guest contributor JoannaWymyslo looks at how the Endangered SpeciesAct impacts FEMA’s flood map decisions.Another article examines the appeals processfor FEMA’s flood risk assessment.

Other articles examine a variety of legal issuesin the Gulf of Mexico region. Mary McKennareviews a recent decision rejecting the use ofjetskis in Gulf Islands National Seashore.Lindsey Etheridge reviews an unsuccessfulchallenge to the Gulf of Mexico AquaculturePlan. Another article addresses wind farm sit-ing decisions in Texas.

And finally, the Gulf oil spill is capped. Butwhile the spill is stopped, the litigation is onlybeginning. In August, the U.S. Judicial Panelon Multidistrict Litigation consolidated oilspill lawsuits in a New Orleans federal court.Water Log will continue to cover these emerg-ing legal challenges in future editions.

As always, thank you for reading Water Log.We look forward to your suggestions andcomments.

Niki Pace

Inside This Issue . . .

Wildlife Advocates Demand Accountability in FEMA Decision-Making.......................... 3

Locals Lose CZMA Challenge to Texas Wind Farms .................................................. 5

Mississippi’s Seawall Act Upheld .................... 8

No Jetskis in Gulf Islands National Seashore: New Rule Violates Organic Act .................................................10

Gulf of Mexico Aquaculture Plan: Advocacy Groups Lack Standing to Sue ............................................................15

Eighth Circuit Dismisses Challenge to FEMA Flood Risk Assessment ............... 18

Environmental Law CLEDecember 3, 2010 • Mobile, Alabama

presented byMississippi-Alabama Sea Grant

Legal Program

For further information, contact Niki L. Pace [email protected]

• SAVE THE DATE •

From the Editor’s Desk

Cover photograph of Kemp’s ridley turtle at PadreIsland National Seashore courtesy of the NationalPark Service.

SEPTEMBER 2010 • WATER LOG 30:3 • 3

Joanna B. Wymyslo, J.D., LL.M.1

On July 13, 2010, the National Wildlife Federation andthe Florida Wildlife Federation filed a lawsuit to enforcethe § 7 consultation and conservation provisions of theEndangered Species Act (ESA) as they pertain to theFederal Emergency Management Agency’s (FEMA)administration of the National Flood Insurance Program(NFIP).2 These groups have litigated this issue on otheroccasions as to FEMA’s § 7 obligations with regard to theimpacts of flood insurance on Chinook salmon andFlorida Key deer.3 The wildlife groups now allege theNFIP encourages and facilitates new development in areasused by loggerhead, green, hawksbill, leatherback, andKemp’s ridley sea turtles. The following is a summary ofthe Key Deer case to illustrate how courts have required amore active role from federal agencies whose actionsundergo § 7 consultation, as well as the likely issues inNational Wildlife Federation v. Fugate.

ESA ConsultationWhen a federal agency proposes “any action authorized,funded, or carried out by such agency,” the ESA requiresthat the agency consult with the Secretary as to whetherany listed species might be present in the affected area inorder to insure the proposed action “is not likely to jeop-ardize the continued existence” of listed species.4 Thisprovision is broadly interpreted to include “all activities orprograms of any kind.”5 If a listed species might be pre-sent, the agency must do a “biological assessment” todetermine whether that species is “likely to be affected”by the proposed action.6 The power of § 7 requirementsis that it takes some of the discretion away from the actionagency and gives it to the Fish and Wildlife Service.

National Flood InsuranceFEMA administers the NFIP, a federal program to helpproperty owners in flood-prone areas obtain insurance

that would otherwise be prohibitively costly or unavail-able.7 To qualify, communities must submit floodplainmanagement regulations that satisfy minimum land usecriteria developed by FEMA to reduce future flooddamage in the area.8 If a community fails to adopt orenforce such land use regulations, local property own-ers are not eligible for federal flood insurance.9 InNFIP-qualified communities, FEMA will either con-tract with private insurance providers to grant insur-ance to FEMA-approved applicants, or issue the insur-ance directly to property owners.10 The NFIP offersreduced flood insurance rates through a CommunityRating System as an incentive to encourage local gov-ernments to adopt land use regulations which exceedthe minimum criteria.

The Key Deer DecisionIn the recent case involving the Florida Key deer, theEleventh Circuit held that FEMA was indeed bound bythe ESA § 7 consultation and conservation requirementsin administering the NFIP.11 The case provides a platformfor wildlife groups to join the trend of precedent-settingcase law which requires action agencies to take affirmativesteps to consider listed species and develop conservationmeasures prior to taking the proposed action.

First, the court considered whether the consultationrequirement in § 7(a)(2) of the ESA applied to FEMA’sadministration of the NFIP. The answer depended onwhether FEMA has discretion in implementing the NFIPand whether the issuance of flood insurance is a legallyrelevant “cause” of development that threatens the listedspecies. The court answered both questions affirmatively.

For the ESA to apply, the court initially establishedthat FEMA has discretion in implementing the NFIP.Section 7(a)(2) “covers only discretionary agency actionsand does not attach to actions … that an agency isrequired by statute to undertake once certain specifiedtriggering events have occurred.”12 FEMA is required to

Wildlife AdvocatesWildlife AdvocatesDemand AccountabilityDemand Accountabilityin FEMA Decisionmakingin FEMA Decisionmaking


develop comprehensive eligibility criteria in order tomake flood insurance available to those areas with ade-quate land use and control measures.13 In developing thecriteria, FEMA must consider “studies and investiga-tions, and such other information as [it] deems neces-sary” to “develop comprehensive criteria designed toencourage, where necessary, the adoption of adequateState and local measures which, to the maximum extentfeasible, will … otherwise improve the long-range landmanagement and use of flood prone areas.”14 AlthoughFEMA is re quired to issue flood in sur ance to lo calitiesthat satisfy certain criteria, the Eleventh Cir cuit heldFEMA has broad discretion in developing those criteria.15

FEMA also has broad discretion in im plementingthe community rat-ing system becauseFEMA designed theprogram and mustconsider the protec-tion of “natural andbeneficial flood plainfunctions” in re -warding localitiesthat exceed the min-imum criteria withdiscounted insur-ance premiums.16

Meet ing thesecond requirementfor ESA applica-tion, the courtadditionally foundthat the issuance offlood insurance is alega l ly re levant“cause” of devel-opment that threat-ens the listed species. Consultation is required foragency action that “may affect listed species or criticalhabitat” considering the “effects of the action as awhole.”17 This includes both direct effects and indirecteffects which are “caused by the proposed action and arelater in time, but still are reasonably certain to occur.”18

However, “where an agency has no ability to prevent acertain effect due to its limited statutory authority overthe relevant actions, the agency cannot be considered alegally relevant ‘cause’ of the effect.”19 FEMA has theauthority to prevent indirect effects of issuing floodinsurance through the NFIP because it can tailor theeligibility criteria to prevent jeopardy to listed species.

Therefore, “its administration of the NFIP is a relevantcause of jeopardy to the listed species.”20 Indeed, dur-ing formal consultation with FEMA, the FWS foundthat § 7 applies to the NFIP and that the NFIP jeop-ardizes listed species “because development is encour-aged and in effect authorized by FEMA’s issuance offlood insurance.”21

The second issue was whether § 7(a)(1) of the ESArequires agencies to develop species-and-location-spe-cific conservation programs. In addition to consultatingwith the FWS, § 7(a)(1) states “[a]ll federal agenciesshall utilize their authorities in furtherance of the pur-pose of this chapter by carrying out programs for theconservation of [listed species] . . . . ”22 Conservation

means “the use of allmethods and proce-dures which arenecessary to bringany endangered spe - cies or threatenedspe cies to the pointat which the mea-sures provided pur-suant to this chap-ter are no longernecessary.”23

Federal agen-cies often ignorethis section becausethe statutory lan-guage is somewhatunclear as to whe -ther it imposes anaffirmative duty onagencies to carryout programs toconserve each list-

ed species. Some courts have interpreted § 7(a)(1) asonly imposing a general conservation requirement“subject to the discretionary authority of each federalagency.”24 However, in Florida Key Deer, the EleventhCircuit rejected that view in favor of imposing anaffirmative, judicially reviewable duty on federalagencies to carry out programs to conserve each listedspecies. It held that it is not sufficient to merely selecta program with an “insignificant” effect, but FEMA“must in fact carry out a program to conserve” listedspecies. Central to its decision was the fact thatabsolutely no communities developed or adopted con-servation plans, meaning FEMA’s incentive program

Photograph of Florida Key deer in mangroves courtesy of U.S.F.W.S.,photographer Paul Frank.

Wildlife Advocates continued on page 7

Niki L. Pace, J.D., LL.M.(with research assistance from Barton Norfleet, 2012 J.D.Candidate, Univ. of Mississippi School of Law)

Kenedy County, Texas has become a hotbed of wind farmactivity. The county is located in the far southern tip ofthe state along the Gulf of Mexico coast. According to the2009 census data, the county population is under 400making it one of the least populated counties in the coun-try.1 Texas Gulf Wind, LLC and Iberdrola Renewables,Inc are two private companies hoping to tap the prevail-ing winds of the area for energy by building wind-energy-generation facilities (wind farms). However, concernsover environmental impacts of the wind farms prompteda local group to challenge the wind farm construction incourt. This summer, the Fifth Circuit Court of Appealsupheld the 2008 district court dismissal of legal chal-lenges against the wind farms.

BackgroundThe wind farms at issue are located in coastal KenedyCounty on lands adjoining the Laguna Madre. TheLaguna Madre is a long, shallow bay that extends alongthe Texas coast from Corpus Christi down to Port Isabeland into Mexico. The adjoining shoreline consists of abiologically diverse area of undeveloped land where threemigratory-bird pathways converge.2 The environmentallysensitive nature of the impacted lands caused local ranch-ers and other groups to form an alliance dedicated to thepreservation of the Laguna Madre called the CoastalHabitat Alliance (Alliance).

The Alliance, concerned over potential environmen-tal harms, brought suit against the developers and Texasagencies, including the Texas Public UtilitiesCommission. The Alliance alleged that its proceduralrights had been violated under the Coastal ZoneManagement Act and the Texas Coastal Management

Program. After an unsuccessful challenge at the districtcourt level, the Alliance appealed to the Fifth Circuit.

Texas & the CZMACongress enacted the Coastal Zone Management Act(CZMA) of 1972 to encourage coastal states to implementcomprehensive programs for preserving and restoring thenation’s coastal resources. The CZMA provides federalfunding for states to enact measures to guarantee both theprotection of the nation’s natural resources, includingbeaches, wetlands, dune systems, and wildlife, as well as thesupervision of coastal development to minimize thedestruction and despoliation of these resources.3 Before astate may avail itself of the CZMA’s opportunities, thestate’s management plan must be approved by the Secretaryof Commerce for compliance with CZMA requirements.Regarding energy facilities, the state program must include“a planning process for energy facilities likely to be locatedin, or which may significantly affect, the coastal zone,including a process for anticipating the management of theimpacts resulting from such facilities.”4

In 1995, Texas created its Coastal ManagementProgram (Texas Program) in accordance with theCZMA. Included in the Texas Program are measuresdesigned to protect the environment from harm by newelectric-generating facilities. To accomplish this goal, theTexas Program favors locating new electric-generatingfacilities at previously developed sites. Where facilitiesare proposed for undeveloped locations, the facilityshould be located where it will have the least adverseimpacts practicable on “spawning, nesting, and seasonalmigrations of terrestrial and aquatic fish and wildlifespecies”5 and should avoid critical areas (includingcoastal wetlands). Under Texas law, adverse effects arethose that result in physical destruction or detrimentalalteration of the coastal zone, including disruption ofmigratory bird corridors.6


LOCALS LOSE CZMACHALLENGE TO

TEXAS WIND FARMS

Under the Texas Program, the state Public UtilityCommission (PUC) is required to comply with thesepolicies when issuing Certificates of Convenience andNecessity (Certificates) to new electric-generationfacilities.7 The process for issuing Certificates includespublic participation and the right of citizens to chal-lenge the PUC’s findings.8 However, when the Texaslegislature deregulated the utility industry, it eliminat-ed the process for conducting a consistency review.9 Asa result of changes to utility regulation in Texas, fewutilities are now required to obtain a Certificate10 con-sequently eliminating the public process to challengefacility siting decisions through the consistency reviewprocess.

Because the Texas Program cites to an earlier provi-sion of Texas law for the authority of the PUC to conducta consistency review, the district court, relying on the lan-guage of that provision, determined that “[t]he windfarms are … subject to the Texas Program’s requirements”including the requirement to obtain a Certificate.11 TheAlliance, therefore, argued that Texas “lacked the unilat-eral authority to eliminate consistency review” withoutengaging in the statutorily defined process for amend-ments which includes public participation.12

Procedural Rights & PreemptionAccording to the Alliance, the Texas agencies, in exchangefor federal funding of the state coastal management planunder the CZMA, agreed to two things at issue here: 1)the agencies agreed to perform environmental consistencyreview of new electric-generation facilities, and 2) theagencies agreed to allow for public comment on the con-struction of new energy-generation facilities such as thewind farms in this case.13 Because the Texas agencies failedto comply with these provisions of the Texas Program, theAlliance maintained that the agencies violated preemptivefederal law under the Supremacy Clause as well as violatedthe Alliance’s due process rights. In other words, theAlliance asserted that its “procedural rights” to a consis-tency review and public comment were violated, eventhough the Texas law requiring those provisions wererepealed before the federal government approved the TexasProgram, because the Texas Program continues to cite therepealed laws.14

In addressing the Alliance’s arguments, the courtacknowledged that “it is a fundamental principle of theConstitution … that Congress has the power to preemptstate law.”15 However, the CZMA specifically denies pre-emption of state law: “nothing in this chapter shall be


Photograph of a Texas Wind Farm courtesy of David Scott.


“had no effect whatsoever” in nine years “and it is there-fore not a program to conserve.”25

ConclusionThe Eleventh Circuit’s analysis in Florida Key Deer wasone of the landmark decisions giving substance to therequirements of § 7(a)(1). This decision opens thedoor for public interest litigants to increase pressureon federal agencies which they believe are not ade-quately taking action to conserve listed species, such assea turtles.l

Endnotes1. Associate at the law firm of Fowler White Boggs, in

Jacksonville, Florida.2. Nat’l Wildlife Fed’n v. Fugate, No. 1:10-cv-22300-KKM

(S.D. Fla. filed July 13, 2010).3. Nat’l Wildlife Fed’n v. FEMA, 345 F.Supp.2d 1151, 1172

(W.D. Wash. 2004); Fla. Key Deer v. Paulison, 522F.3d 1133 (11th Cir. 2008).

4. 16 U.S.C. § 1536(a)(2)-(c)(1); see also 50 C.F.R. § 402.02(defining “jeopardize the continued existence of [a listedspecies]”).

5. 50 C.F.R. § 402.02 (defining “action”).6. 16 U.S.C. §1536(c)(1); see also 50 C.F.R. §402.12.7. 42 U.S.C. § 4001; 44 C.F.R. §59.2(a).8. 44 C.F.R. § 59.2(b).9. 42 U.S.C. § 4022(a)(1); 44 C.F.R. § 60.1(a).10. 44 C.F.R. §§ 62.1, 62.23, 62.3.11. Fla. Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008). 12. Nat’l Ass’n of Homebuilders v. Defenders of Wildlife, 551

U.S. 644, 127 S.Ct. 2518, 2536 (2007). 13. 42 U.S.C. § 4102(c). 14. Id.15. Fla. Key Deer, 522 F.3d 1133.16. 42 U.S.C. § 4022(b)(1)(B). 17. 15 C.F.R. § 402.14(a), (c). 18. 15 C.F.R. § 402.02.19. Dep’t of Transportation v. Public Citizen, 541 U.S. 752, 770

(2004).20. Fla. Key Deer, 522 F.3d at 1144.21. Id.22. 16 U.S.C. §1536(a)(1).23. 16 U.S.C. §1532(3).24. Fla. Key Deer, 522 F.3d at 1146. 25. Id. at 1147 (emphasis in original).

construed … to diminish either Federal or state juris-diction, responsibility, or rights in the field of plan-ning, development, or control of water resources, sub-merged lands, or navigable waters . . . .”16 Unless anactual conflict exists, the CZMA will not preemptstate law. Because the CZMA does not expresslyrequire public participation or consistency reviews ofwind farm construction, the court determined that noactual conflict exists. In further support, the courtpointed to the CZMA’s built-in remedy for a state’sfailure to comply with the CZMA – the right to sus-pend and withdraw federal funding from a non-com-pliant state.17

ConclusionBecause the Fifth Circuit found no basis for recog-nizing the CZMA’s preemption of the Texas Program,the Alliance had no basis for “procedural rights”which would have allowed it to challenge the agen-cies’ actions. The court affirmed the lower court’sdecision to dismiss the case noting that the Alliancelacked legal grounds to bring the lawsuit.1 8

“Inasmuch as the Texas program has failed to proper-ly implement its own program, it is the withdrawal offunding, not the recognition of a preemptive ‘proce-

dural right,’ that is the Congressionally intendedmethod of ensuring compliance.”19

l

Endnotes1. U.S. CENSUS BUREAU, USA QUICKFACTS FOR KENEDY

COUNTY, TEXAS, http://quickfacts.cen sus.gov/qfd/states/48/48261.html (last visited Aug. 26, 2010).

2. Coastal Habitat Alliance v. Patterson, 2010 WL 2465032,*1 (5th Cir. June 17, 2010).

3. 16 U.S.C. § 1452(2).4. Id. § 1455(d)(2)(H).5. Coastal Habitat Alliance v. Patterson, 601 F.Supp.2d

868, at 872-73 (W.D.Tex. 2008).6. 31 Tex. Admin. Code Ann. § 501.3(a)(1).7. 601 F.Supp.2d at 873.8. Id.9. Id. at 874.10. Id.11. Id.12. Id. at 875.13. Coastal Habitat Alliance v. Patterson, 2010 WL 2465032,

*1 (5th Cir. June 17, 2010).14. Id.15. Id.16. Id.17. Id.18. Id. at *3.19. Id. at *2.

Wildlife Advocates from page 4

8 • SEPTEMBER 2010 • WATER LOG 30:3

April Hendricks, 2012 J.D. Candidate, Univ. ofMississippi School of Law

Following Hurricane Katrina, the Mississippi GulfCoast suffered extensive infrastructure damage. Bay St.Louis, Mississippi, located along the state’s westerncoastal border with Louisiana, was particularly crippledby the storm and needed extensive repairs. BeachBoulevard (also known as Highway 90) runs parallel tothe shoreline along the Mississippi coast. The city ofBay St. Louis, in conjunction with the HancockCounty Board of Supervisors, began a $33 millionrestoration of the seawall protecting Beach Boulevard inBay St. Louis, in accordance with the MississippiSeawall Act. Five property owners affected by therestoration challenged the County’s legal authority toproceed. In May, the Mississippi Supreme Court, sidingwith Hancock County, upheld the constitutionality ofMississippi’s Seawall Act.1

BackgroundIn 2005, Hurricane Katrina destroyed portions of theseawall protecting Beach Boulevard in Bay St. Louis,Mississippi. The U.S. Army Corps of Engineers (Corps)offered to reconstruct the damaged seawall in HancockCounty using federal funds; the planned constructionwould occur seaward of the previous seawall on publictrust lands belonging to the state, which holds the titleto these lands for the use and benefit of the public.From the outset of this project, the Hancock CountyBoard of Supervisors followed the procedures outlinedby the Seawall Act, which provides the means by whicha county may acquire property for and construct a sea-wall when the need arises.2

In order to rebuild the seawall, the Corps requiredtemporary construction easements from neighboringlandowners. Specifically, the Corps required temporaryeasements over nearby properties, allowing them to

access and use the land at no charge for 36 months asthe construction proceeded. In accordance with theSeawall Act, the Corps sent letters to these landownersin August 2008 and February 2009 explaining the needfor both the seawall and for access to portions of theirproperties to facilitate the construction process. Thoughmany landowners granted the necessary easements tothe Corps, five landowners, including Daricek, refusedto grant temporary access to their property withoutcompensation.3

The Board of Supervisors proceeded to condemnthese properties under the Seawall Act and publishednotice of the condemnation in a Hancock Countynewspaper.4 When the landowners responded withclaims for compensation, the Board notified thelandowners of their plan to conduct a site inspectionto assess the potential damages. Following the inspec-tion, the Board unanimously voted against compensa-tion and approved the taking of the properties, con-tending that the lack of compensation was justifiedbecause the proposed seawall would increase the valuesof these properties.5

The landowners appealed the Board’s decision tothe Hancock County Circuit Court, alleging that theSeawall Act was unconstitutional and had beenrepealed or superseded by the Real Property Ac -quisitions Policy Act (RPAPA). The circuit courtaffirmed the decision of the Board, noting that,because the landowners had notice of the condemna-tion proceedings and an opportunity to be heard, theirdue process rights had not been violated by the SeawallAct. Furthermore, the court found that both theSeawall Act and the RPAPA applied to Board’s decisionto condemn the properties for the seawall constructionproject and that the Board had adequately compliedwith both statutes.6 The landowners appealed to theMississippi Supreme Court on the issue of the SeawallAct’s constitutionality.

Mississippi’s Seawall Act Upheld


The Seawall ActThe Mississippi Legislature enacted the Seawall Act in1924 to outline the manner in which private propertyabutting the beach or shoreline may be taken for publicuse. This Act authorizes a county, by acting through itsboard of supervisors, to finance the construction of andcondemn private property for the creation of a seawallto protect public roads. In order to condemn propertiesunder this Act, the Board must certify to the governorthat the erection of a seawall is essential for the protec-tion of a public road, and the governor must thenappoint five citizens of the affected county to serve asthe Road Protection Commission of that county.7

If the Road Protection Commission determinesthat the construction of a seawall is necessary to main-tain the integrity of the public road system, then theCommission must publish notice of the seawall’s con-struction for 30 days in a county newspaper. Anylandowner claiming compensation for land taken inassociation with such a construction project must peti-tion the Board within 30 days of the time limit pub-lished in the newspaper notice. In assessing such claimsfor damages, the Board must inspect the landowners’properties after providing the petitioner with five days’notice of the site assessment. After determining thedamages sustained by the landowner, if any, the Boardmust enter their official findings at their next meeting.8

Should the landowner be dissatisfied with theBoard’s assessment of damages, the Act grants thelandowner the right to appeal the decision to the circuitcourt. The Act further provides that the question ofdamages may be determined by a jury if the landownerso desires.9 Accordingly, if a property owner is aggriev-ed by the condemnation proceedings autho-rized under the Seawall Act, he may seek reliefin the judicial system, and ultimately, the Actensures that the final assessment of damageswill be made by the landowner’s peers ratherthan by the Board seeking the condemnation ofhis property.

Constitutionality of the Seawall ActThe Mississippi Supreme Court found that thelandowners failed to establish that the SeawallAct violated their due process rights; thus, thecourt upheld the Act as a constitutional exerciseof power by the Mississippi Legislature.10 Thecourt has held in the past that two days noticeis constitutionally insufficient, while 30 daysnotice does not violate due process.11 Because

the Seawall Act requires 30 days of publication noticeand further provides landowners with 30 additionaldays to submit claims for damages, the court found thatthis Act preserves the due process rights of all affectedparties.

Moreover, the court pointed to the standard for dueprocess articulated by the U. S. Supreme Court inMatthews v. Eldridge, stating that “the fundamentalrequirement of due process is the opportunity to beheard at a meaningful time and in a meaningful man-ner.”12 The Seawall Act allows landowners to submit awritten claim of damages to the Board, accompany theassessors to the property inspection, appeal the Board’sdecision to the circuit court, and request a jury trial onthe issue of damages; therefore, the court determinedthat, by protecting the interests of landowners affectedby the construction of new seawalls, the Act clearlycomplied with the Matthews standard.

RPAPAThe Real Property Acquisitions Policy Act (RPAPA),enacted by the Mississippi Legislature in 1972, imposescertain requirements on condemnors of property and is,in many ways, distinguishable from the Seawall Act. Forinstance, condemnors must exhaust reasonable effortsto acquire property through negotiations before resort-ing to condemnation,13 whereas the Seawall Act doesnot address the negotiation process. Under both theSeawall Act and the RPAPA, the property owner mustbe given the opportunity to accompany the appraiser onan evaluation of the potential property damages.14 TheRPAPA also requires that the condemning authority not

Seawall continued on page 14

Photograph of Harrison County seawall courtesy of USACE.


Mary McKenna, 2011 J.D. Candidate, Univ. ofMississippi School of Law

While use of jetskis in national parks was generallybanned in 2000, the Gulf Islands National Seashore,located along the Gulf Coast of Florida and Mississippi, isan exception. The regulations permitting the continueduse of jetskis in the park recently came under judicialscrutiny. In 2008, environmental groups initiated legalproceedings against the National Park Service over the jet-ski rule. As discussed in more detail below, a federal dis-trict court, in July, found the rule failed to comply withapplicable federal laws and remanded the rule to theNational Park Service.

BackgroundHistorically, jetskis were permitted in the National ParkSystem until the mid-1990s, when jetski use intensified,causing an increase in noise and pollution. In response,the National Park Service (NPS) banned jetskis in all but21 of the national parks via the National Jetski Rule,which went into effect in April 2000. Bluewater Network,concerned that the National Jetski Rule inadequately pro-tected the 21 exempted parks, filed suit against NPS. Thatlitigation (Bluewater I) resulted in a SettlementAgreement, which required that the exempted parks beallotted a two-year grace period of continued jetski use,during which time the parks were to develop and imple-ment park-specific regulations governing jetskis. If, afterthe two-year grace period, a park did not issue a park-spe-cific regulation, jetskis would be completely banned.1 Ifthe NPS wished to permit jetski use after the grace peri-od expired, special, site-specific regulations would have tobe implemented, subject to a national notice and com-ment period and appropriate analysis under the NationalEnvironmental Policy Act (NEPA).2

Located in the northeastern section of the Gulf ofMexico, Gulf Islands National Seashore (Gulf Islands)consists of a 160-mile expanse of barrier islands and

waters from the eastern end of Santa Rosa Island inFlorida to Cat Island in Mississippi. In addition to itssnowy-white beaches, blue waters, coastal marshes andmaritime forests, Gulf Islands boasts forts, picnic areas,nature trails, campgrounds and regionally importantecological sites that host endangered species.3 As one ofthe 21 exempted parks, Gulf Islands could allow jetskiuse until 2002, when its grace period would expire. Asmentioned above, if jetski use at the park was to con-tinue after 2002, Gulf Islands needed to issue a specialregulation governing jetskis and conduct a NEPAreview.

In 2001, Gulf Islands’ Superintendent conducted astudy (2001 Determination) of the effects of jetski usewithin the park, ultimately determining that jetskis nega-tively impacted the water quality, wildlife, and other visi-tors’ enjoyment of the park; the findings supported a banof jetski use. In 2002, Gulf Islands allowed the grace peri-od to expire, thus banning jetski use in the park.

NPS then conducted an Environmental Assessment(EA) to analyze the impact of jetskis on the park. The EAconsidered three alternatives: 1) a no action alternative,which would continue the ban on jetskis; 2) AlternativeA, which would again allow jetski use in the park at thesame level that existed before the national ban; and 3)Alternative B, which would also reinstate jetski use, butwould further limit it through issuance of certain restric-tions. NPS then evaluated the impacts of each alternativeon water quality; air quality; soundscapes; shoreline andsubmerged aquatic vegetation; wildlife and wildlife habi-tat; aquatic fauna; threatened, endangered and special sta-tus species; and visitor use and safety. NPS ultimatelyconcluded that jetski use should be permitted in the park,under Alternative B. The proposed rule was published forpublic comment, and in January 2006, NPS issued a“findings of no significant impact” (FONSI). In May2006, NPS issued a final rule (Gulf Islands Rule) onceagain permitting jetski use in Gulf Islands, subject to cer-tain limitations.4

No Jetskis in Gulf IslandsNational Seashore:New Rule Violates Organic Act


In May 2008, Bluewater Network, The WildernessSociety, Enid Sisskin, and Robert Goodman (collectivelyBluewater) filed suit against the National Park Serviceand others (collectively NPS) challenging the re-intro-duction of jetskis into Gulf Islands.5 Bluewater allegedthat NPS had acted arbitrarily and capriciously under theAdministrative Procedure Act (APA) when it allowed jet-ski use in the park after having banned jetskis under boththe National Jetski Rule and the 2001 Determination.Further, Bluewater maintained that re-introduction ofjetskis into the park violated the Organic Act, NEPA, andthe terms of the Settlement Agreement of Bluewater I.More specifically, Bluewater contended that the EA pre-pared by NPS unreasonably concluded that jetski use waspermissible, and that the NPS’ FONSI and Gulf IslandsRule had improperly relied on the EA’s conclusion thatthe re-introduction of jetski use would not impair GulfIslands, which resulted in the lifting of the jetski ban.

The National Park Service Organic Act The Organic Act gives the NPS authority to manage fed-eral lands and provides that NPS must:

promote and regulate the use of … nationalparks … to conserve the scenery and the natur-al and historic objects and the wild life thereinand to provide for the enjoyment of the same insuch manner and by such means as will leavethem unimpaired for the enjoyment of futuregenerations.6

NPS has broad discretion to determine what actions arebest calculated to protect park resources and must strikethe appropriate balance between prioritizing conservationand providing for use and recreation by the public.

Although Bluewater suggested that NPS’ reversal ofearlier jetski policies in Gulf Islands required a height-ened standard of review, the court concluded thatno heightened standard of review was necessarywhen examining an agency’s change of course inpolicy. Rather, the court held that determiningwhether the agency’s actions were arbitrary andcapricious required a determination of whetherthe agency had supplied a “rational connectionbetween the facts found and the choicemade.”7 Additionally, in conducting an APAreview, the court stressed the importance of scru-tinizing the administrative record to ensure that a“thorough, probing, in-depth” examination asrequired by statute had been conducted.8

The court held that NPS had authority torevisit the ban on jetski use under the National

Jetski Rule and Settlement Agreement, but that NPSfailed to provide a clear, reasoned, and adequately justi-fied analysis in arriving at its final decision to re-intro-duce jetskis to Gulf Islands. NPS failed to meaningfullyexplain how the facts found “led to the conclusion thateach impact was not an ‘impairment’ under the OrganicAct.”9

After conducting an EA analysis of each alternative,NPS concluded that jetski use under Alternative B’s lim-its would not result in any impairment to park resources.Specifically, NPS concluded that Alternative B wouldgenerate only negligible to minor adverse impacts onwater quality, air quality, soundscapes, vegetation andwildlife. In terms of visitor experience and safety, howev-er, NPS found that Alternative B created a beneficialimpact on jetski users and a variety of adverse impacts onnon-jetski users.10 NPS based its analysis on the “conser-vative” assumption that jetski users would be operatingolder, noisier, and more polluting two-stroke jetskis.However, at times, NPS claimed that certain impactswould be minimized by eventual transition to more envi-ronmentally friendly four-stroke jetskis in the future.NPS failed to explain its inconsistencies in measuringimpacts sometimes based on two-stroke jetskis and some-times based on four-stroke jetskis, and further failed toprove the assumption that four-stroke jetskis would dis-place two-stroke jetskis by 2012.

With regard to measuring water quality impacts ofjetskis, NPS concluded in its EA that despite an increaseof more than 66% in expected emissions from jetskis, a“negligible” impairment would result, without any expla-nation of how this result could logically follow.11

Therefore, the court held that without a specific anddetailed explanation as to how NPS arrived at this con-clusion, no rational connection existed between the facts

Photograph of sunset at Ft. Pickens (part of the Gulf IslandsNational Seashore) courtesy of NPS.


found (quantitative data) and the final conclusionsreached (negligible impact and non-impairment). In addi-tion, NPS failed to articulate why it relied on water qual-ity standards applicable to various locations across thecountry instead of water quality standards appropriate tothe value and resources of a specific park.12

As for air quality, NPS concluded that adverseimpacts under Alternative B would be negligible based onthe benchmark that emissions would be less than 50tons/year for each pollutant; but NPS provided no expla-nation as to where the standard of 50 tons/year wasderived from or why that benchmark applied uniformlyto pollutants whose national standards differ significantlyamong the national ambient air quality standards(NAAQS).13 The court concluded that without furtherexplanation of how the tonnage cutoff of 50 tons/yearsupported a non-impairment finding for all pollutants,NPS again failed to provide the necessary rational con-nection between its factual data and its ultimate conclu-sion. Moreover, the court noted that NPS failed toarticulate why NAAQS represented the ap -propriate benchmark for mea-suring air quality in nation-al parks when those stan-dards are na tional airquality maximumsthat neglect to con-sider the possibilitythat specific park airquality may be differ-ent or even muchlower.

Regarding sound-scapes, NPS used as itsbenchmark a statute cre-ated for enforcement pur poses, not impact as sess mentpurposes; again, NPS gave no explanation as to why thatstandard was appropriate. Nor did NPS explain why, if onpeak days, noise levels from jetski use would exceed thestandard set forth in the statutory benchmark, the impacton soundscapes was categorized as “negligible to minoradverse.”14 In addition, NPS relied heavily on the futureconversion from two-stroke to quieter four-stroke jetskisas a basis for minimizing impacts to soundscapes. Again,the court concluded that NPS failed to make a rationalconnection between its quantitative data and its final con-clusion

Although NPS acknowledged in its vegetation analy-sis that increased jetski use by 2012 would heightenimpacts on vegetation, it concluded that no impairment

would occur and that the impact on vegetation both onthe shoreline and in the water would be negligible tominor despite potential serious impacts such as “collision,uprooting, and sediment alteration.”15 Once again, thecourt determined that NPS failed to provide any neces-sary rational connection between the finding of non-impairment and the data observed.

Additionally, the court found NPS’ definition of“impairment” on wildlife “draconian” and inconsistentwith its obligations under the Organic Act to “conserve …the wildlife … as will leave them unimpaired for theenjoyment of future generations.”16 Furthermore, thecourt was troubled by NPS’ conclusion that Alternative Bpresented only “long-term minor to moderate, adverseimpacts to aquatic fauna,” despite data that determinedbottlenose dolphins would experience substantiallyreduced echolocation and communication abilities whenexposed to the noise of just two jetskis, far less than the

expected number of jetskis on a typical summerday.17 Because there was no mention

of how this impact on bot-tlenose dolphins related to the

non-impairment determi-nation for wildlife

and/or aquatic fauna,the court concludedthat NPS yet againfailed to make clearthe connection

between the data and itsconclusion.

NPS’ examination ofjetski effects on visitor use and

safety resulted in a beneficialim pact assessment for jetski users and

an adverse im pact for non-users. The court held thatNPS’ lack of explanation as to why moderate adverseimpacts to non-users did not rise to the level of impair-ment when those non-users might be driven out of thepark, was merely a conclusory assessment that did notsupport NPS’ obligations under the Organic Act or itsduties to clearly find a rational connection between itsdata and its conclusions.

For these reasons, the court concluded that the GulfIslands Rule was arbitrary and capricious; NPS’ conclu-sion that re-introduction of jetski use would result in non-impairment under the Organic Act was not based on rea-soned explanations that articulated a rational connectionbetween the facts found and the policy choice made, butrather on profoundly flawed, internally inconsistent,

Image courtesy of ©Nova Development Corp.


unsupported assertions in the EA. Without a rationalexplanation, the court found NPS’ final determinations tobe impermissibly conclusory in violation of the OrganicAct and remanded the case to NPS in order to provideadequate reasoning for its conclusions.18

NEPAThe National Jetski Rule and the Settlement Agreementrequired that NPS comply with NEPA’s proceduralrequirements during the site-specific rulemaking processregarding re-introduction of jetskis into Gulf Islands.NEPA requires necessary procedural processes in whichfederal agencies must “take a ‘hard look’ at the environ-mental consequences before taking a major action.”19 Thecourt found that NPS failed to take the requisite “hardlook” at the relevant environmental concern in preparingthe EA, which, as discussed above, was both conclusoryand inadequate in its explanation of the connectionsbetween objective facts and conclusions reached.20

Therefore, the court concluded that because both the GulfIslands Rule and the FONSI relied on the inadequate rea-soning of the EA, NPS could not make a convincing caseas to its findings as required by NEPA. Accordingly, thecourt found the Gulf Islands Rule and FONSI arbitraryand capricious, and an abuse of NPS’ discretion, andremanded the case to NPS so that it could provide ade-quate reasoning.

Settlement AgreementThe court held that the Settlement Agreement compelledNPS to comply with the terms of NEPA during theprocess to adopt site-specific regulations for Gulf Islands.The Settlement Agreement, however, did not require NPSto undertake park-specific studies in order to analyzepark-specific impacts; NPS could rely on studies conduct-ed at other locations in order to assess impacts particularto Gulf Islands and still be consistent with NEPA. Inshort, the court concluded that the Settlement Agreementrequired that NEPA be followed, but required no morethan that. Accordingly, the court found that theSettlement Agreement was breached to the extent thatNPS failed to meet NEPA’s “hard look” requirement, asdiscussed above.21

ConclusionThe court found fundamental problems in NPS’ EA,Gulf Island Rule and FONSI, and remanded the case toNPS to provide adequate reasoning for its conclusions.If, then, NPS is able to put forth convincing reasons insupport of the interpretation of quantitative facts that

the environmental impact and impairment with regardto jetski re-introduction into Gulf Islands is insignifi-cant, and if NPS follows the procedural requirements ofNEPA and the terms of the Settlement Agreement in theprocess, the court is likely to determine that the agency’schange of policy was not arbitrary and capricious. Inshort, if on remand NPS is able to adequately explain itschange in policy by rationally connecting quantitativefacts found with its final conclusions that each impactwas not an “impairment” under the Organic Act, theGulf Island Rule is likely to stand. It remains to be seen,however, if NPS will be able to accomplish this giventhat NPS is now charged with the responsibility of notonly explaining the data acquired but also explainingfrom where the standards and benchmarks interpretingthis data were derived.l

Endnotes1. Bluewater Network v. Salazar, 2010 WL 2680823, at *2

(D.D.C. July 8, 2010).2. Id. at *3. See Settlement Agreement at ¶ 5. 3. Bluewater Network, 2010 WL 2680823, at *5. 4. Id.5. Although not discussed in this article, Bluewater also sued

NPS for the re-introduction of jetskis in Pictured RocksNational Lakeshore in Michigan. Id. at *1.

6. 16 U.S.C. § 1.7. Bluewater Network, 2010 WL 2680823 at *13.8. Id. at *22.9. Id. at *15.10. Id. at *17. 11. Id. at *20. 12. Id. at *21.13. NAAQS vary considerably for each pollutant. For instance, for

nitrogen dioxide, the NAAQS maximum is 100 microgramsper cubic meter; for particulate matter, 50 micrograms percubic meter; for fine particulate matter, 15 micrograms percubic meter. Id. at *22.

14. Id. at *17.15. Id. at *25-26.16. Id. at *26. The EA’s wildlife analysis defined “impairment” as

such: “[A]n impairment at Gulf Islands occurs only whenimpacts are so intense or sustained that they result in ‘the elim-ination of a native species or significant population declines ina native species.’” Id.

17. Id. at *27. 18. Id. at *30.19. Id. at *29. 20. It should be noted that NPS’ impairment analysis under the

Organic Act also served as its NEPA analysis, relying on thesame reasoning in making arguments under both the OrganicAct and NEPA. Id. at *30.

20. Id. at *36.


intentionally make it necessary for a landowner to institutelegal proceedings to establish that his or her property hasbeen taken without just compensation.15

The landowners in this case alleged that the RPAPArepealed or superseded the Seawall Act and thus request-ed that the RPAPA, rather than the Seawall Act, beapplied to their circumstances. The court found that,because the RPAPA never directly references the SeawallAct, the Act has not been directly preempted. Moreover,because the RPAPA and the Seawall Act can be construedin harmony with one another, the Act has not been pre-empted by implication. The landowners argue that,because the Act requires the property owner to make aclaim for damages and file an appeal in the circuit court,the Act cannot be harmoniously applied alongside theRPAPA’s requirement that the condemning authority notintentionally promote legal proceedings.

However, the court found that the Seawall Act pro-vides for adjudication of the question of damages but doesnot, like the RPAPA, require the landowner to establishthat a taking has occurred; therefore, the two statutes donot obviously conflict with one another. Thus, theRPAPA does not supersede the Seawall Act and thesestatutes may both be applied where appropriate.16

ConclusionThe Mississippi Supreme Court affirmed the holding ofthe Circuit Court of Hancock County, ruling that the

Seawall Act is constitutional. The court noted that theBoard had complied with all relevant sections of theSeawall Act and the RPAPA in condemning the landown-ers’ properties and, thus, the Board did not infringe onthe landowners’ constitutional rights by condemning theland to facilitate the seawall’s restoration. Essential for thecontinued protection of Beach Boulevard, the seawallreconstruction plans can proceed as scheduled as a resultof the court’s decision.l

Endnotes1. Daricek v. Hancock County, 34 So.3d 587, 590 (Miss. 2010).2. Miss. Code Ann. § 65-33-1 et. seq. (Rev. 2005). 3. Daricek, 34 So.3d at 591.4. See Miss. Code Ann. § 65-33-23.5. 34 So.3d at 591.6. Id. at 592.7. Miss. Code Ann. § 65-33-27.8. Id. § 65-33-31.9. Id.10. 34 So.3d at 597.11. Branaman v. Long Beach Water Mgmt. Dist., 730 So.2d

1146, 1150 (Miss.1999); Miss. Bd. of Veterinary Med. v.Geotes, 770 So.2d 940, 944-45 (Miss. 2000).

12. 424 U.S. 319, 333 (1976).13. Miss. Code Ann. § 43-37-3(a) (Rev. 2009).14. Id. § 43-37-3(b).15. Id. § 43-37-3(h).16. 34 So.3d at 597-600.

Seawall from page 9

Photograph of sand being moved back to existing seawall in Hancock County after Hurricane Katrina erosion courtesyof USACE.


GULF OF MEXICOAQUACULTURE PLANAAddvvooccaaccyy GGrroouuppss LLaacckk SSttaannddiinngg ttoo SSuuee

Lindsey Etheridge, 2011 J.D. Candidate, Univ. ofMississippi School of Law

A federal district court in Washington, D.C. recentlydismissed a case challenging the Fishery ManagementPlan for Regulating Offshore Marine Aquaculture inthe Gulf of Mexico (Gulf Plan or the Plan).1 The Planauthorizes the issuance of permits for offshore aquacul-ture in federal waters in the Gulf of Mexico. Threeadvocacy groups, Gulf Restoration Network, Food &Water Watch, and Ocean Conservancy, challenged thePlan, claiming that it violated three federal laws.

BackgroundOffshore aquaculture is the farming of aquatic animalsin federally managed areas of the open ocean throughthe use of floating or submerged net-pens or cages.Federal waters begin where state jurisdiction ends, gen-erally three nautical miles offshore Alabama,Mississippi, and Louisiana and nine nautical miles offthe Gulf coast of Florida and Texas, and extend 200miles offshore. Several aquaculture operations exist instate waters, where research is conducted and commer-cial production is ongoing. In federal waters, only a fewaquaculture activities have been permitted, such as liverock aquaculture. The Gulf Plan is the first plan thatwould allow commercial finfish offshore aquacultureoperations in U.S. federal waters.2

Currently, 80 percent of the seafood consumed inthe U.S. is imported, with about half of those importsfrom aquaculture. Promoters of offshore aquaculture inthe Gulf of Mexico cite this figure and the growingdemand for seafood in the U.S., as well as several prob-lems with imported seafood from overseas aquaculture,including from China and southeast Asia. Opponentsinclude environmental and fishing industry groupswho argue that waste from aquaculture activities couldharm wild fish in the Gulf and disrupt traditional fish-ing communities.3

The Gulf Aquaculture PlanPursuant to the Magnuson-Stevens Fishery Con -servation and Management Act (MSA), the De -partment of Commerce, through the NationalMarine Fisheries Service (NMFS), regulates thenation’s marine fisheries. The Gulf of Mexico FisheryManagement Council (Gulf Council) is one of eightRegional Councils established by the MSA to devel-op fishery management plans for fisheries in U.S.federal waters.4

The Gulf Council composed a plan to authorizecommercial offshore aquaculture facilities in the Gulf ofMexico. The Plan provides for between five and twentyoffshore aquaculture operations to be permitted in theGulf over the next ten years, with an estimated annualproduction of up to 64 million pounds of fish. TheGulf Council pursued development of the Plan becauseit believes commercial wild-capture fisheries are beingfished beyond sustainable levels and are likely unable tomeet the growing demand for seafood in the U.S.5

The Plan includes an Environmental ImpactStatement, which evaluates potential environmentalimpacts to water quality, wild stocks, and fishing com-munities and offers a range of solutions for reducingany adverse effects to the ecosystems in the Gulf.6 It alsosets forth a number of environmental safeguards, whichinclude the following: limiting the species that may becultured to only fish that are native to the Gulf ofMexico, capping the total amount of fish that can becultured annually, and establishing record-keeping,reporting, and operation requirements designed to min-imize or mitigate potential environmental impacts.7

The Gulf Council submitted its proposed plan toNMFS, and pursuant to the MSA, NMFS publishednotice of the Plan on June 4, 2009. Following a 60 daypublic comment period, the Secretary of Commercehad 30 days to either approve, disapprove, or partiallyapprove the plan and any amendments.8 Under theMSA, if the Secretary takes no action on a proposed


plan at the expiration of those 30 days, the plan isautomatically approved. After the Secretary purpose-fully chose not to act on the Plan, it automaticallytook affect on September 3, 2009. This approach wasunprecedented and controversial. The Secretaryexplained in a letter to the Gulf Council that the Plan“raised important issues of national policy regardingthe manner in which offshore aquaculture is regulat-ed.”9 The Secretary did not want to affirmativelyapprove or disapprove the plan in the absence of acomprehensive national policy addressing the devel-opment of offshore aquaculture operations. Instead,NMFS advised the Gulf Council not to implementthe Plan until a national policy was developed and itwas able to examine the Plan in the context of thatpolicy.

The advocacy groups filed suit against NMFS andthe Secretary of Commerce after the Plan took affect byoperation of law claiming that the Plan violates theMSA, the National Environmental Policy Act (NEPA),and the Administrative Procedure Act (APA). NMFSmoved to dismiss the case on three grounds: the groupslacked standing, their claims were not ripe for adjudi-

cation, and they lacked a statutory cause of actionunder both the MSA and the APA. As discussed below,the court ultimately agreed.

StandingFirst, the court found that the groups lacked standing tosue because they had suffered no injury as a result of thePlan. Before someone may challenge agency action incourt, there must be an actual “case or controversy” andthe person bringing the case must have standing to sue.A person has standing only when he or she has sufferedan actual injury or when an injury is imminent; theinjury must be caused by the party against whom the suitis filed, and the court must be able to redress the plain-tiff ’s injury.10

Since the Plan has not been implemented, theadvocacy groups have suffered no actual injury. Theyasserted, however, that injury was imminent. Forexample, one member claimed, “aquaculture facilitiesin the Gulf of Mexico will hurt [his] personal interestin the well-being of the Gulf, as well as [his] businessby damaging the ecosystem and harming wild fishpopulations.”11 Unfortunately, this claim does not

Photograph of ocean spar cage deployed in Gulf of Mexico courtesy of the Mississippi-Alabama Sea Grant Consortium.


allege an injury that is likely to occur in the near future.This claim is an allegation of future harm contingent onaquaculture facilities being permitted in the Gulf andnegatively impacting the environment.

The court concluded that harm to the advocacygroups’ members was not imminent because severalsteps must be taken before aquaculture operations canbegin in the Gulf. Regulations must first be written,approved, and adopted to establish the framework forissuing permits under the Plan. Only then may permits,which have to be reviewed and approved by a numberof federal agencies, be issued. This process could takeyears and it is not clear at this point whether permits willever be issued pursuant to the Plan. Because the harmsalleged are not imminent, the advocacy groups do nothave standing to challenge the Plan.

RipenessSecond, the court found that the groups’ claims werenot ripe for adjudication, i.e., their claims were prema-ture and not based on concrete evidence. Since the Planhas not been implemented and no regulations are inplace, the court had no concrete basis on which to eval-uate the Plan’s effect on the groups’ interests and theimpact of aquaculture in the Gulf of Mexico. Courtscannot address a case contesting a government policy“when the challenged policy is not sufficiently fleshedout to allow the court to see the concrete effects andimplications of its decision or when deferring consider-ation might eliminate the need for review altogether.”12

The Gulf Plan has not been “fleshed out” because noregulations have been adopted that would even allowaquaculture operations to begin. Depending on whatregulations are passed and what requirements are put inplace for obtaining permits, aquaculture activities in theGulf may be carried out in several different ways.Aquaculture could even be completely denied if NMFSdecides that the Plan does not comport with nationalpolicy. Therefore, the circumstances surrounding thegroups’ claims were not sufficiently concrete for thecourt to determine the impact of aquaculture in the Gulfand whether the groups may suffer any harm.

Statutory ClaimsFinally, the court found that the groups did not have astatutory claim under either the MSA or the APA. TheMSA provides for judicial review of “regulations pro-mulgated by the Secretary” and “actions taken by theSecretary under regulations which implement a [fisherymanagement plan].”13 It does not specifically provide for

judicial review of fishery management plans. TheSecretary has not promulgated any regulations nor takenany action under regulations which implement the GulfPlan. Also, the Secretary’s inaction, which allowed thePlan to take effect automatically, did not constitute thepromulgation of a regulation because the Plan is notcharacterized as a regulation and has no binding effect.For similar reasons, the court also found the groupslacked a statutory claim under the APA because no finalagency action had taken place.

ConclusionAs NMFS continues to develop a comprehensive nation-al policy for the development of offshore aquacultureoperations in U.S. federal waters, it will examine the GulfPlan in the context of that policy. Heavy criticism andopposition to the Gulf Plan are likely to continue as manyenvironmental concerns surround offshore aquaculture.In addition, the Gulf Oil Spill has added another dimen-sion to the debate. On May 25, 2010, Louisiana SenatorDavid Vitter introduced a bill that would require a three-year study on the impacts of offshore aquaculture anddelay the issuing of permits. In support of the bill, hedrew attention to the Gulf Oil Spill, saying that “themarine environment … cannot handle any more stress asit begins its recovery from the ongoing oil spill.”14

l

Endnotes1. Gulf Restoration Network, Inc. v. National Marine Fisheries

Service, 2010 WL 3184327 (D.C. Cir. Aug. 12, 2010).2. Amy Lubrano, New Developments in Gulf of Mexico

Aquaculture Plan, 29:3 WATER LOG 3 (2009).3. Chris Kirkham, Gulf of Mexico Fish Farming Pros and Cons

Aired at New Orleans Meeting, NOLA.COM, April 20, 2010,ht tp : / /www.nola .com/pol i t i c s / index . s s f /2010/04/gulf_of_mexico_fish_farming_pr.html.

4. Gulf Restoration Network, Inc., 2010 WL 3184327 at *1.5. Id. at *2.6. Jonathan Proctor, Offshore Aquaculture in the Gulf of Mexico’s

Federal Waters, 28.3 WATER LOG 5 (2008).7. Lubrano, supra note 2.8. Gulf Restoration Network, Inc., 2010 WL 3184327 at *3.9. Id. at *4.10. Id. at *6-7.11. Id. at *7.12. Id. at *10 -11.13. Id. at *14.14. Chris Kirkham, Pointing to Gulf Oil Spill, Sen. David Vitter

Files Bill to Delay Offshore Aquaculture, NOLA.COM, May 25,2010, http://www.nola.com/news/gulf-oil-spill/index.ssf/2010/05/pointing _to_gulf_oil_spill_sen.html.


Allison Wroten, 2012 J.D. Candidate, Univ. ofMississippi School of Law

In August, the United States Court of Appeals for theEighth Circuit considered whether a challenge to theFederal Emergency Management Agency’s flood riskassessment first required an administrative appeal toFEMA under the National Flood Insurance Act of 1968(NFIA). Finding in the affirmative, the court dismissed alocal group’s lawsuit over FEMA’s reclassification of aflood zone in St. Peters, Missouri. In reaching its decision,the court also found that such disputes are properly liti-gated under the NFIA and not the AdministrativeProcedure Act (APA).1 While the court never reached theunderlying substantive challenges, the decision providesguidance on the proper legal avenues available for chal-lenging a flood elevation determination.

BackgroundIn 1968, Congress enacted the National Flood InsuranceAct to authorize a flood insurance program that wouldmake flood insurance available nationwide. The Actauthorized FEMA to establish the National FloodInsurance Program. As part of the program, FEMA pub-lishes flood insurance rate maps, which are official mapsof communities “delineat[ing] both the special hazardareas and the risk premium zones applicable to the com-munity.”2 On occasion, these maps require updating toreflect changes in the land. When updating is necessary,FEMA will issue a Letter of Map Revision (LOMR). TheLOMR is a modification to a map and officially revisesthe map.

In December of 2006, the City of St. Peters, Missourirequested a LOMR from FEMA to reclassify a tract ofland that was currently considered part of the MississippiRiver floodplain.3 St. Peters based its request on the recentconstruction of a new urban levee designed to protect thecity from a 500-year flood. In essence, St. Peters sought a

zone change under the NFIP from its current AE Zone(100-year flood zone) to an X Zone (500-year flood zone,or 100-Year Flood Zone with flood control structure pro-tection). Though FEMA expressed concern about thelevee’s ability to protect against floods, it issued the pro-posed LOMR. In accordance with public notice require-ments, FEMA published the LOMR twice in the localnewspaper and once in the Federal Register.4

In September 2008, the Great Rivers Habitat Allianceand the Adolphus A. Busch Revocable Living Trust (col-lectively Great Rivers) sent the city of St. Peters a letterpointing to deficiencies in the levee. The letter expressedconcern about the levee’s closure structure and the level ofits freeboard. Closure structures are required at all open-ings of a levee.5 Freeboard, a factor of safety usuallyexpressed in feet above a flood level, is not required by theNFIP, but communities are encouraged by FEMA toadopt at least a one-foot freeboard to compensate for fac-tors that may increase the flood height.6 Freeboardrequirements result in higher elevations for structures. St.Peter’s forwarded the letter to FEMA. However, FEMAdetermined that the letter was unwarranted and made St.Peter’s LOMR official. Once the LOMR was official, theflood insurance rate map was revised, reclassifying thetract of land from the special flood hazard area zone to azone that was protected by a flood control structure.

In December 2008, Great Rivers sued FEMA askingthe district court to 1) declare that FEMA had based theLOMR decision on flawed scientific and technical infor-mation and upon an inadequately designed and con-structed levee; 2) vacate FEMA’s LOMR determination;3) permanently enjoin FEMA from issuing the LOMRuntil St. Peter’s levee meets National Flood Insurance Actstandards; and 4) award fees and costs. Before reachingGreat Rivers’ substantive claims, the district court firstconsidered FEMA’s motion to dismiss for lack of subjectmatter jurisdiction. Agreeing with FEMA, the lower courtheld that Great Rivers failed to exhaust its administrative

Eighth Circuit DismissesChallenge to FEMA Flood

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remedies under the National Flood Insurance Act(NFIA) and dismissed the case.7 Great Rivers appealedthe decision to the Eighth Circuit. On appeal, thecourt first determined that the NFIA waives FEMA’ssovereign immunity from legal challenges to flood ele-vation determinations. Having dispensed with thatissue, the court then turned to whether the APA or theNFIA allowed Great Rivers to proceed with its chal-lenge in this instance.

APA v. NFIATo evaluate whether the case should be litigated underthe APA or NFIA, the court found it necessary to con-sider whether FEMA’s decision to issue the LOMR wasa flood elevation determination. The court recognizedthat the revisions to the LOMR involved a decrease inflood zone from Zone AE to Zone X. FEMA’s act ofrevising the flood insurance rate map to move the landfrom Zone AE to Zone X was identical to changing thebase flood elevation from its previous level to zero.Therefore, the adjustment was a flood elevation deter-mination and was properly litigated under the NFIA.The APA only grants judicial review of final agencyaction in cases “for which there is no other adequateremedy in a court.”8 The court determined that thelower court did not err in dismissing Great Rivers’ APAclaim because the NFIA provided an adequate legalremedy.9 Having determined that the case was properlylitigated under the NFIA, the court proceeded to assessGreat Rivers’ claim.

The letter from Great Rivers contesting the LOMRwas grounded on two facts – the levee lacked a closurestructure and the sufficiency of freeboard. The letterwas accompanied by a table of data that came fromFEMA’s own files. The court agreed with the lowercourt that in order to properly appeal the LOMR underthe NFIA, Great Rivers should have submitted new cer-tified scientific or technical information so that FEMAcould conduct another analysis based on the new infor-mation. FEMA was not required to reanalyze its ownexisting data. The Eighth Circuit determined that thelower court did not err when concluding that it lackedjurisdiction because Great Rivers failed to exhaust theiradministrative remedies by filing a proper appeal withFEMA.10

ConclusionThis ruling is of particular interest to residents ofcoastal areas, such as in Louisiana and Mississippi.FEMA has been wrong in the past about its published

flood risk data in these coastal states.11 Prior toHurricanes Katrina and Rita, FEMA was in the processof conducting a coastal study on hurricane stormflooding. Un fortunately, Hurricanes Katrina and Ritahit land before FEMA issued its findings. The stormsurges from the hurricanes far exceeded the base floodelevation levels that FEMA had published, raising ques-tions about the validity of its flood risk data. Inresponse, FEMA conducted a major reassessment of itsflood risk data. FEMA found that the actual risk offlooding far exceeded the previously published floodrisk.12 After Mississippi was devastated by HurricaneKatrina, the state made efforts to update its flood insur-ance rate maps. The Mississippi Flood MapModernization Initiative (MFMMI) is the state’s effortto develop reliable digital flood hazard maps and datafor every county in Mississippi. MFMMI plans to havenew preliminary maps for every county by the end ofthe year.13

l

Endnotes1. Great Rivers Habitat Alliance v. FEMA, 2010 WL 3168368

(8th Cir. Aug. 12, 2010).2. 44 C.F.R. § 59.1.3. Great Rivers Habitat Alliance, 2010 WL 3168368 at *1.4. Id. at *2.5. 44 C.F.R. § 65.10.6. FEMA, NATIONAL FLOOD INSURANCE PROGRAM,

http://www.fema.gov/plan/prevent/floodplain/nfipkey-words/freeboard.shtm.

7. Great Rivers Habitat Alliance, 2010 WL 3168368 at *2.8. 5 U.S.C. § 704.9. Great Rivers Habitat Alliance, 2010 WL 3168368 at *3.10. Id. at *4-5.11. U.S. Gov’t Accountability Office, GAO-07-169, NATIONAL

FLOOD INSURANCE PROGRAM: NEW PROCESSES AIDED

HURRICANE KATRINA HANDLING, BUT FEMA’S OVERSIGHT

SHOULD BE IMPROVED (2006).12 Id.13. FED. EMERGENCY MGMT. AGENCY, MISSISSIPPI MMMS,

BUSINESS PLAN SUMMARY (2007).


Photograph taken after Hurricane Katrina courtesy of NOAA.

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The University of Mississippi

WATER LOG

WATER LOG is a quarterly publication reporting onlegal issues affecting the Mississippi-Alabama coastalarea. Its goal is to increase awareness and under-standing of coastal issues in and around the Gulf ofMexico.

To subscribe to WATER LOG free of charge, contact us by mail atMississippi-Alabama Sea Grant Legal Program, 258 Kinard Hall, WingE, P. O. Box 1848, University, MS, 38677-1848, by phone: (662) 915-7697, or by e-mail at: [email protected]. We welcome suggestionsfor topics you would like to see covered in WATER LOG.

Editor: Niki L. Pace, J.D., LL.M.

Publication Design: Waurene Roberson

Contributor:Joanna R. Wymyslo, J.D., L.L.M.

Research Associates:Lindsey EtheridgeApril HendricksMary McKennaBarton NorfleetAllison Wroton

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