17
May
Environmental Permitting

Environmental Permitting

During 2000-2005, Don Shandy and Keith Klein were outside counsel for a major environmental permitting effort in Missouri that finally succeeded despite intense citizen opposition.  The case was known as the Lee Island Project.

The Lee Island Project involved a proposal to build a greenfield cement manufacturing plant on an undeveloped 4,000 acre tract of land along the Mississippi River 40 miles south of St. Louis.  The natural beauty of the site, its floodplain and wetlands, its adjacent rugged hills and forestland, and its proximity to a major metropolitan area were factors that aroused a storm of controversy about the project.

The project required the following permits and approvals:

  • Missouri 401 water quality certification
  • NEPA environmental assessment or environmental impact statement
  • Army Corps of Engineers Clean Water Act Section 404 permit
  • Army Corps of Engineers Rivers and Harbors Act Section 10 permit
  • Ste. Genevieve County floodplain development permit
  • Missouri land reclamation permit
  • Missouri air permit
  • Missouri stormwater permit

Some of the environmental issues that were dealt with during the permitting effort included:

  • Air impacts (NOx, etc.) to St. Louis ozone nonattainment area
  • Impacts of mercury air deposition on fish in Mississippi R. from burning of coal
  • Impacts of taking 14.2 acres of wetlands for harbor cut into floodplain
  • Mitigation of impacts to wetlands by creation of wetland mitigation complex
  • Avoidance of impacts to other wetlands
  • Impacts on floodplain development
  • Water quality impacts to Mississippi R., perennial stream flowing through site, and 3.2 miles of intermittent jurisdictional streams in rugged hills behind river bluffs
  • Impacts to endangered species found on/near site (Indiana bat, pallid sturgeon)
  • Impacts to threatened species (bald eagle, Hine’s emerald dragonfly)
  • Impacts to migratory birds that used forestland for nesting
  • Adequacy of land reclamation for 1600 acres of limestone quarry to be developed over 100 year period at the site
  • Conservation easement for buffer area around site
  • Impacts to cultural resources (Native American and historical sites on the property)

The agencies that became involved in the project were:

  • US Environmental Protection Agency
  • US Fish and Wildlife Service 
  • Natural Resources Conservation Commission
  • US Army Corps of Engineers
  • Missouri Department of Natural Resources
  • Missouri Department of Conservation
  • Illinois Department of Natural Resources

The organizations that opposed the project were:

  • Missouri Coalition for the Environment
  • Sierra Club, Ozark Chapter
  • American Bottom Conservancy
  • Webster Groves Nature Study Society
  • Washington University School of Law Interdisciplinary Environmental Clinic (as counsel for above groups)

The project resulted in the following administrative, judicial, and other proceedings:

  • Administrative appeal of initial 401 water quality certification by Missouri DNR (involved briefing and three-day hearing handled by Keith Klein)
  • Citizen protest and resulting political opposition to Corps’ decision to do environmental assessment instead of EIS (Keith Klein represented client in discussions with Corps on these issues)
  • Performance of detailed environmental assessment (EA) in lieu of EIS (Keith Klein and team of environmental consultants worked for 3+ years to conduct and report on 31 studies required by Corps to support EA, and worked with Corps to draft and finalize EA).  The EA ended up being the near-equivalent of an EIS at least in level of analysis of potential impacts.
  • NEPA lawsuit, Missouri Coalition for the Environment, et al., v. Kevin Williams, US Army Corps of Engineers and Holcim (US) Inc., Case No. 4:03CV1074-DJS, E.D. Mo.  (Keith Klein wrote the brief on cross-motion for summary judgment).  The Court’s decision on Sept. 29, 2004 upheld the issuance of the Corps 404/10 permit and paved the way for resolution of the opposition to the project.
  • Administrative appeal of land reclamation permit challenge.  (Keith Klein handled five-day hearing which resulted in a decision affirming the issuance of a permit to our client).
  • Lawsuit challenging administrative decision on land reclamation permit, Missouri Coalition for the Environment, et al. v. Missouri Land Reclamation Comm’n, et al., Cause No. 03CC-003530, Cir. Ct. St. Louis County, Mo.  (Keith Klein handled the briefing; court affirmed decision of administrative law judge.)
  • Appeal of state court decision on land reclamation permit to Missouri Supreme Court.  Missouri Coalition for the Environment, et al. v. Missouri Land Reclamation Comm’n, et al., No. SC 85810, Sup. Ct. Mo (2004).  (Keith Klein handled appellate briefing in conjunction with Missouri Attorney General’s office).
  • Lengthy negotiations with Missouri DNR regarding air permit (Don Shandy handled this aspect of the project)
  • Administrative appeal of issuance of air permit (Don Shandy handled the technical evaluation for the response to comments and the initial briefing for the appeal before settlement).

Many companies would have abandoned similar project in the face of the kind of stout opposition the Lee Island project encountered.  However, our client stayed the course, performed the studies required, agreed to modifications to the project to avoid impacts, and agreed to extensive wetland and stream mitigation, land reclamation, and a permanent conservation easement/buffer to minimize and mitigate impacts.