A hotel owned the .49-acre wetland adjacent to it. The hotel applied for a permit under the Clean Water Act to fill the wetland claiming it intended to build a commercial building. See 33 U.S.C. §§ 1311(a), 1341(a)(1), 1344(a), (e). The hotel received a general permit from the Army Corps of Engineers for the construction of commercial buildings.

A member of an environmental non-profit sought declaratory judgment and the restoration of the wetland. She alleged that the hotel always intended to fill the wetland for landscape purposes; therefore, she claimed that the authorization was null and void because the hotel “intentionally and maliciously misled the Corps.” The hotel moved to dismiss the complaint. The district court granted the motion holding that the individual member did not have standing because she did not allege injury in fact. The member appealed to the Eleventh Circuit.

To have standing, a plaintiff must have suffered an injury due to the actions of the defendant. Here, the member claimed that she suffered an aesthetic injury. Such an injury occurs when a person who uses the affected area will experience diminished aesthetic value due to the challenged activity. Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 183 (2000). The member alleged she gained aesthetic pleasure from viewing the hotel’s wetland.

The court rejected the hotel’s argument that the member must have “actually visited” the wetland before it was filled. Even if the individual member never visited the wetland, the court found that she nevertheless experienced an injury in fact because she could no longer could enjoy viewing the wetland. Additionally, the individual member did not need to have physically occupied the wetland to have an aesthetic interest. While the plaintiff must have an interest in the specific area, the court noted the limitations of this requirement. Otherwise, a plaintiff must “step[] on the Old Faithful geyser at Yellowstone National Park to challenge its destruction.” Lastly, the court found it irrelevant that the wetland was private property. While the member had no right to occupy the wetland, she still had an aesthetic interest in it. Because the individual member sufficiently alleged injury, the court vacated the lower court’s dismissal.

The case is Glynn Env't Coal. v_Sea Island Acquisition LLC, 2022 WL 620284 (11th Cir. March 3, 2022).