SAVE OUR WETLANDS, INC. (SOWL)

Vs

LOUISIANA DEPARTMENT OF
ENVIRONMENTAL QUALITY

JUNE 3, 2004 BATON ROUGE, LA

19th JUDICIAL DISTRICT COURT

No. 520-808

Div. “22 ”

PARISH OF EAST BATON
ROUGE STATE OF LOUISIANA

PETITION FOR REVIEW OF ISSUANCE OF WATER QUALITY CERTIFICATION

The Petition of Save Our Wetlands, Inc. (“SOWL”) represents:

1. Plaintiff SOWL brings this action on behalf of itself and its adversely affected members. SOWL is a non-profit corporation existing under the laws of the State of Louisiana, with its principal place of business in Orleans Parish, Louisiana. SOWL is a membership organization with approximately 1,200 members residing in Louisiana, many of whom reside on, or recreate near the project site in St. Tammany Parish and other adjacent areas. SOWL is dedicated to the protection and enhancement of the natural resources of Louisiana and St. Tammany Parish. SOWL’s actions to protect and enhance the environment include litigation against violators of environmental laws. SOWL and its members have a substantial interest in this matter and are adversely affected and aggrieved by the defendant’s actions, as alleged below.

2. SOWL has members who reside near the project and other areas in St. Tammany Parish where numerous residential and community projects, including the present project, have been or are proposed to be developed. SOWL has members who benefit from and use these areas on a regular basis for, among other things, fishing, boating, other outdoor sports and recreational activities, wildlife viewing, nature study, and aesthetic enjoyment, and who wish to protect and preserve this area for these purposes and for educational and scientific purposes. The interests of SOWL’s members will be directly injured by the degradation of the natural and scenic values and biological productivity of the area through the development of the project and other residential and commercial development in that region. These developments will substantially increase flood hazards and will significantly degrade the quality of the water and habitat value of the water and adjoining lands. The foregoing degradations will interfere with plaintiff’s members’ ability to use and enjoy the area for various recreational purposes.

3. On or about May 7, 2004 the Louisiana Department of Environmental Quality, defendant herein, issued Water Quality Certification MB030630-01/A1 86653 (hereinafter referred to as WQC) to the applicant Tammany Holding Corporation for the development of a new residential and commercial subdivision, Lakeshore Villages/Estates, located off Louisiana State Highway 433 in Slidell, Louisiana.

4. The certification states that the project will be consistent with the water quality standards set forth under LAC33:1X, Chapter 11.

5. The applicant is proposing to clear, grade, excavate and place fill to facilitate construction of access roads; building pads; retention ponds, lagoons and canals; utilities; and a drainage pump station. The scope of work also includes a proposed widening the East Diversion Canal, levee maintenance/construction and/or relocation, and dredging of a navigation channel in Lake Ponchartrain.

6. Plaintiff SOWL and its individual members are specifically aggrieved by the certification as follows:
   1. decreased water quality

   2. decreased aesthetics

   3. increased noise levels; and

   4. diminution of property value caused by the decrease in water quality;

   5. fear of loss of fill from under homes due to the migration of subsurface soils to deeper water;

   6. fear of loss or damage to bulkheads due to subsurface soil migration and wave action;

   7. wave action damage to homes in times of high water and strong west winds;

   8. increased volume of pumped drainage water from the project site in times of astrological high tides of storm tides; and

   9. increased fecal coliform counts in canal waters where many children swim.

7. Plaintiff and its members are within the “zone of interests” sought to be protected by the Clear Water Act.

8. The WQC is deemed to be a permit action for all purposes by LA.R.S. 30:2074 yet fails to meet the statutory requirements for final orders or decisions of the Secretary concerning permits outlined in LA. R.S. 30:2050.19 in that the WQC fails to articulate the portions of the record upon which the Secretary relied, what the factual findings of the Secretary were, and what conclusions of law were reached in the decision.

9. The certification must be reversed and vacated for the following reasons:
   1. The certification was manifestly erroneous in view of the reliable probative and substantial evidence on the whole record;

   2. The certification was arbitrary and capricious or characterized by abuse of discretion or clearly an unwarranted exercise of discretion;

   3. The certificate failed to articulate a rational connection between facts found and the certification;

   4. The WQC fails to articulate the portions of the record upon which the Secretary relied;

   5. The WQC fails to set out what conclusions of law were reached in the decision;

10. Specifically the factual finding of the WQC that:
    1. “The proposed development has been partially or fully encompassed by a levee system and under forced drainage since the early 1920's, with no apparent direct hydrologic surface connection with Lake Pontchartain or to any other waters of the United States.”;

    2. The social and economic benefits provided by the project are significantly and tangible and outweigh the minimal environmental impacts proposed by the project;

    3. By raising the levee this project will provide greater flood and hurricane protection to the area than is currently available; and

    4. All other findings of fact not supported by the record. are manifestly erroneously and not supported by the record in this matter

11. Plaintiff requests that the Court grant an automatic stay pending the disposition of this matter in light of the irreparable harm created by the certification, as set forth above.

WHEREFORE, plaintiff prays that after due proceedings are had, there by judgment in favor of the plaintiff, Save Our Wetlands , Inc., vacating and/or reversing the Water Quality Certification MB030630-01/A1 86653 issued by defendant, Louisiana Department of Environmental Quality and granting an automatic stay. Plaintiff further prays that the defendant be condemned to pay all costs of these proceedings.

Respectfully submitted,

__________________
Attorney for Plaintiff,
Save Our Wetlands, Inc.

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