If you represent clients with environmental or land development interests in Southwest Florida or Southern Miami-Dade County, you need to be aware of, and involved in, U.S. Army Corps of Engineers (COE) initiatives to develop federal environmental impact statements (EIS) for these regions.  Over the last year there has been a tremendous amount of debate among environmental and land development interests over the need for and scope of these EIS’s.
This article is intended to provide a brief overview of the EIS process and the Southwest Florida and South Miami-Dade County EIS initiatives.
 

A. APPLICABLE FEDERAL LAW AND REGULATIONS

     The National Environmental Policy Act (NEPA), Public Law 91-190, codified at 42 U.S.C. 4321, et seq., was signed into law on January 1, 1970.  The rules implementing NEPA are codified at 40 CFR §§ 1501 – 1525.

     NEPA directs federal agencies proposing actions (including permitting  actions by federal agencies under the Clean Water Act and Clean Air Act) that significantly affect the quality of the human environment to prepare a “detailed statement” on the environmental consequences of the proposed action.  NEPA, § 102(2), 42 U.S.C. § 4332(2).   The “detailed statement” required by Section 102(2)(C) has become known as an “environmental impact statement.”  40 CFR § 1502.1

     NEPA also established the Council on Environmental Quality (CEQ). The CEQ is authorized by NEPA to issue binding regulations to federal agencies for implementation of the environmental impact statement process. 40 CFR §§ 1500 – 1503. 
 

 B. THE PURPOSE  AND SCOPE OF AN EIS

     NEPA is a procedural statute that is designed to ensure that federal agencies consider environmental impacts of their actions. 

     The court in Florida Audubon Society v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996) stated that the purpose of NEPA’s EIS requirement is to ensure that federal agencies account for environmental costs and effects of major action before taking that action, but it is not intended to provide individuals, who can demonstrate no more than probable cause of some risk of environmental injury from the agency action, a means of forcing an agency to discover whether its action in fact poses any actual risk of causing such harm. 

     An EIS must encompass consideration of potential secondary and cumulative impacts resulting from proposed activities and “reasonable alternatives” to the proposed activity.  However, an EIS need not consider remote or highly speculative consequences.  Environment Defense Fund, Inc. v. Hoffman, 566 F.2d 1060 (8th Cir. 1977).
 

C. SOUTHWEST FLORIDA

      The Southwest Florida region includes most of Lee, Collier, Glades and Hendry Counties. This region had a population base of approximately 520,000 in 1990.  By 2010 the population is expected to reach nearly one million people, a 90% increase.  This region is one of the most rapidly growing areas of the state and the nation, and will continue to do so, causing increased demands for residential and commercial development which will in turn cause impacts to the natural resources of the region. According to the COE, the EIS is designed to assess the cumulative impacts development activities have on local environmental resources, including primarily the Estero Bay Watershed Area. 

       For months, the COE has sought the support of the Lee and Collier county commissions but has finally gone ahead after both commissions failed to support the EIS process which is now expected to take approximately 22 months to complete. The COE and Board of Commissioners from Lee and Collier counties continue negotiating the scope and timeframe for an EIS.  The COE proposed formation of an inter-governmental memorandum of agreement (MOA) and workgroup to ensure full participation in the EIS process.  Signatories to the MOA may include the local Chamber of Commerce and the South Florida Water Management District.
Initiation and scoping of the EIS is expected to occur in February through April, 1998.  A first draft of the EIS is targeted for release November, 1998 with a final EIS to be completed on or before July, 1999.
 

D.  SOUTHERN MIAMI-DADE COUNTY

      The U.S. Air Force and the Federal Aviation Administration will prepare a supplemental environmental impact statement (SEIS) on the proposed transfer of the airfield facilities (approximately 2,000 acres) at the former Homestead Air Force Base to Dade County. After Hurricane Andrew, the South Miami-Dade County economy was devastated.  The proposed transfer of surplus property is expected to support local plans for economic revitalization of South Miami-Dade.
According to the Air Force, the underlying goals of the SEIS are to (1) inform decision-makers of the consequences of the proposed transfer and alternatives for decision making and (2) inform and involve other government agencies and the public in the decision making process.  Involvement from Dade County and the South Florida Water Management District, as well as other entities and interest groups, and the public will be sought throughout the SEIS process.
The SEIS will address the proposed transfer of a one-runway airport at the former base.   Possible future construction of additional runways some 15 to 40 years in the future will require additional analysis and federal approvals at that time, if and when additional runways are proposed.

      The decision to prepare SEIS was made as a result of the review that was begun this spring of the Air Force’s 1994 Final EIS, Disposal and Reuse of Homestead Air Force Base, Florida.  Participating in the review with the Air Force and the FAA were the Department of Interior, Department of Justice, Environmental Protection Agency, and the Council on Environmental Quality.  The review was begun in response to questions raised about the continuing adequacy of the 1994 EIS in light of changing plans for the airport.  The purpose of the review was to determine whether the 1994 EIS adequately addressed the issues currently associated with the proposed transfer and development of facilities for a one-runway civil airport.

      It had been hoped that the review process would permit the Air Force and FAA to conclude that an SEIS was not required, allowing transfer of airport facilities to occur immediately, subject to appropriate conditions.  However, after considering fully a contractor’s draft report, the Air Force and FAA have concluded that the potential environmental issues need to be addressed further, including potential mitigation measures, and that best course of action is to proceed immediately with preparation of an SEIS.

      The Air Force and the FAA will be the lead agencies for preparing the SEIS.  The National Park Service, the Fish and Wildlife Service, and the Environmental Protection Agency will be cooperating agencies.  The process will begin in February/March, 1998 with extensive consultation with government agencies and the pubic on the scope of the SEIS.  There also will be opportunities for interested parties to review and comment on the draft SEIS after it is published, including participation in public hearings.  In addition, informal meetings will be held upon request, and written input is welcome at any time.  The times and locations of public events will be announced in the local area.