Claims that the Army Corps acted improperly in issuing a NWP 18 permit to fill wetlands were deemed moot since the Regional Condition that formed the basis for the complaint was revoked in the interim, holds 11th Circuit

In January 2006, Gearon and Fisher applied to the Army Corps for authorization to fill existing wetlands on their respective Sea Island properties. The applications specifically stated that the proposed project site was not located in tidal waters. The Corps conducted a desktop review of the applications and issued Gearon and Fisher the requested permits. Fulcher, a Sea Island resident, contacted the Corps shortly thereafter and asked them to conduct a field study of the properties to ensure that the subject wetlands were not tidal.
The Corps complied and concluded that the properties were not tidally influenced. Shortly thereafter, an objection was made to the Corps regarding the properties in question. In response, the Corps conferred with an employee of the Georgia Department of Natural Resources, Coastal Resources Division, who also had visited the sites and confirmed that the wetlands were freshwater and not tidal. In addition, the Corps required Gearon and Fisher to "measure the tidal range . . . on the boundaries of the two properties during the next spring tide" and threatened revocation of the permits if the measurements were not made. The measurements were made and, once again, it was determined that the wetlands at issue were not subject to tidal fluctuations.
Over the next few months, further evidence was sent to the Corps in support of the contention that the wetlands were tidal. The Corps considered the information, which included video excerpts and findings and reports from two consultants, but again concluded that the wetlands were not tidal. Accordingly, the Corps refused to revoke the Nationwide Permit 18 (“NWP 18”) permits issued to Gearon and Fisher. On 23 August 2006, Gearon and Fisher began filling the wetlands on their project sites and the Appellants filed suit the next day and asked the District Court for a preliminary injunction.
In their motion for a preliminary injunction, the Appellants claimed, among other things, that the Corps' characterization of the wetlands at issue as non-tidal was arbitrary and capricious and in conflict with their own regulatory scheme. The Appellants contended that Regional Condition 30 (“RC 30”) specifically prohibited the issuance of NWP 18 in tidal waters and, therefore, the Corps' conduct was essentially in violation of its own regulations. The Appellants also urged the district court to close the administrative record as of the issuance of the permits in March 2006. The District Court declined the invitation and decided instead that the administrative record properly encompassed all of the information contained in the certified administrative record submitted by the Corps. The District Court subsequently denied the motion for a preliminary injunction.
After filing suit, the Appellants continued to gather information in support of their position that the wetlands at issue were tidal in nature. On 29 December 2006, the Appellants reversed course and petitioned the District Court to supplement the record with information gathered after their complaint was filed. The District Court denied their request and found that they had failed to make the requisite showing of bad faith by the Corps which would justify consideration of material outside of the record.
On March 12, 2007, the Corps announced the reissuance of all existing NWP’s with a few modifications. Then on May 3, 2007, the Corps' South Atlantic Regional Commander approved the Savannah District's new regional conditions. The adoption of these new regional conditions eliminated RC 30 as of May 3, 2007. Accordingly, NWP 18 permits were no longer prohibited in tidal waters. Shortly thereafter, the Corps filed a motion to dismiss the case as moot because RC 30 had been removed from NWP 18 in the Savannah District. The District Court granted the motion and an appeal followed.
In Altamaha Riverkeeper et al v. Army Corps et al, 2009 U.S. App. LEXIS 2433 (11th Cir. 2009), the Court of Appeals considered the mootness issue. The Appellants contended that the District Court erred in granting the Corps' motion because, although RC 30 has been eliminated, Georgia's Coastal Resources Division ("CRD") has since informed the Corps of its objection to the use of NWP’s in certain estuarine areas lying within a tide elevation range of 5.6 feet above mean tide level and below. The Corps countered that RC 30 was the original basis for the lawsuit and that because RC 30 has been eliminated, the case is moot. The Court of Appeals agreed with the Corps and concluded that the District Court did not err in granting its motion to dismiss.
The Court noted that the Appellants charged the Corps with issuing NWP’s in contravention of RC 30. The Appellants argued that the Corps' decision to authorize development of the wetlands at issue was arbitrary and capricious in light of RC 30's prohibition of the use of NWP’s in tidal waters. The Court noted that it agreed with the District Court's determination that "even if [the Appellants] could establish that the Corps' decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . based upon the existence of tidal waters," the Corps need only reissue another certificate under the current NWP 18 which is free of RC 30's constraints.   The Appellant' reliance on CRD's notice of objection was deemed unavailing.   Georgia was not a party to the proceedings and its 2007 letter to the Corps postdates the original complaint by over eight months. Whereas CRD's objections may form the basis for a separate controversy, the objection was not deemed a basis for this one.