The legal wrangling over a filled-in wetland on St. Simons Island isn’t over yet, say plaintiffs in a Clean Water Act Citizen Suit against Sea Island Acquisition, LLC.

Glynn Environmental Coalition, the Center for a Sustainable Coast and Jane Fraser have fought since 2019 against what they say was a fraudulent application by Sea Island Acquisition for a permit from the U.S. Army Corps of Engineers to fill in a half-acre wetland on St. Simons Island. They are now poised to ask the court to reconsider a recent dismissal of their complaint, driven by a concern that the case will set an unwelcome precedent.

The issue arose in 2013 when Sea Island Acquisition requested and received permission from the Corps to fill the wetland using an expedited process called a nationwide permit. On its application to the Corps the resort and real estate development company indicated it was filling the treed wetland near Dunbar Creek and adjacent saltwater marshes to build a 12,000 square foot office building. But in its drawings submitted to Glynn County at the same time, Sea Island indicated the same area would be “permanent sod.” In fact, the office building never materialized and the area is now covered in grass.

The plaintiffs allege that Sea Island company knowingly misled regulatory agencies in its application for a Clean Water Act permit that resulted in the unlawful destruction of wetlands at the Inn by Sea Island, an 85-room hotel on St. Simons. And they fear the decision, if left unchallenged, will allow the loss of other wetlands.

“Rogue developers need to be held accountable,” said Rachael Thompson, executive director of the Glynn Environmental Coalition. “Sea Island submitted a fraudulent application to the U.S. Army Corps of Engineers and maintains a decades-long ongoing violation to their permit. Federal law allows citizens and their non-profit representatives to file litigation to enforce the Clean Water Act when federal agencies fail to meet their obligation to properly enforce the law.”

Sea Island’s repeated motions to dismiss have prevented the environmentalists from getting to the heart of their allegation of fraud. Instead, courts have twice dismissed the complaint because the wetland in question does not meet the definition of “waters of the U.S.” under the 2023 U.S. Supreme Court decision Sackett v. Environmental Protection Agency. That controversial ruling, made 10 years after the St. Simons wetland was filled, narrowed the protection of wetlands by stating that the Clean Water Act “extends only to those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so they are indistinguishable from those waters.”

Plaintiff Jane Fraser, who lives on Sea Island, rejects the retroactive application of the Sackett decision. She uses an analogy of a speeding ticket to explain.

“Well, just say that you got a ticket for going 60 miles an hour in a 35 mile an hour zone, and 10 years later, they come along and waive your penalty because, in fact, they’ve just changed the speed limit,” she said. “So they have to return all the money to all the people who paid a fee.”

Chief Judge J. Randal Hall of the District Court for the Southern District of Georgia wrote in his 2024 order that because the Supreme Court created and retroactively applied a new rule of federal law in Sackett it was proper to do the same with the St. Simons wetland.

“Because the Supreme Court applied a rule of federal law — its interpretation of the CWA — to the parties before it in Sackett, this Court must give full retroactive effect to the decision,” he wrote.

Last month, a three-judge panel of the Eleventh Circuit Court of Appeals agreed.

“In short, the environmentalists’ complaint fails to allege sufficient facts to support a conclusion that the wetland had a continuous surface connection to a water of the U.S. under Sackett,” they wrote. “Without that element, the environmentalists’ claims fail.”

The Eleventh Circuit’s decision to retroactively apply the Sackett decision to a wetland that the Corps deemed to be jurisdictional and has already been filled may have significant implications for all wetlands in the United States.

“Any decision in 11th Circuit is going to serve as precedent, at least in the 11th Circuit. And so, yeah, we are concerned about that,” plaintiffs’ attorney Johnny Brunini of the Ridgeland Mississippi-based Butler Snow LLP said. “That’s a driving factor behind our reason to request reconsideration.”

He expects to file a request for reconsideration by the Aug. 19 deadline.

Brunswick-based Hall Booth Smith attorney Matthew Balcer, who represented Sea Island Acquisition, did not respond to a request for comment.

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