City of Shoreacres v. Waterworth

• Decision Date: 05 May 2004
• Docket Number: No. CIV.A. H-03-2443.,CIV.A. H-03-2443.
• Citation: 332 F.Supp.2d 992
• Parties: The CITY OF SHOREACRES, et al., Plaintiffs, v. Colonel Leonard D. WATERWORTH, District Engineer, Galveston District — U.S. Army Corps of Engineers, et al., Defendants, The Port of Houston Authority, Intervenor.
• Court: U.S. District Court — Southern District of Texas

332 F.Supp.2d 992

The CITY OF SHOREACRES, et al., Plaintiffs, v. Colonel Leonard D. WATERWORTH, District Engineer, Galveston District — U.S. Army Corps of Engineers, et al., Defendants The Port of Houston Authority, Intervenor.

No. CIV.A. H-03-2443.

United States District Court, S.D. Texas, Houston Division.

May 5, 2004.

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James B. Blackburn, Jr., Blackburn & Carter, Michael John Maloney, Maloney, Martin & Mitchell, Michael B. Martin, Maloney Martin et al., Thomas O. Deen, McFatridge Baker et al., James T. Liston, Attorney at Law, Houston, TX, Richard R. Morrison, III, Attorney at Law, Kemah, TX, for Plaintiffs.

Eileen T. McDonough, Washington, DC, for Defendants.

Sharon Marie Mattox, Vinson & Elkins, Houston, TX, for Intervenor-Defendant.

ORDER

GILMORE, District Judge.

Pending before the Court are Plaintiffs' Motion for Summary Judgment (Instrument No. 92), Defendants' Motion for Summary Judgment (Instrument No. 96) and the Intervenor Port of Houston Authority's Cross Motion for Summary Judgment. (Instrument Nos. 94). Based on the arguments of the parties and the responses hereto, Plaintiffs' Consolidated Response on Summary Judgement (Instrument No. 100), Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment (Instrument No. 99) and the Intervenor Port of Houston Authority's Reply to Plaintiffs' Cross-Motion for Summary Judgment (Instrument No. 102) and the oral arguments presented in the hearing before the Court on April 20, 2004, the Court finds that Defendants' summary judgment motions (Instrument Nos. 94 and 96) should be GRANTED and the Plaintiffs' motion (Instrument No. 92) should be DENIED.

I. Factual Background

This action arises from the proposed construction of the Bayport Project a marine terminal consisting of seven container berths and three cruise berths scheduled to be built in phases over the course of the next 20 years on the existing Bayport Ship Channel on Galveston Bay. (AR 3297 at 9-10).¹ Plaintiffs contend that Defendant United States Army Corps of Engineers (the "Corps") violated the National Environmental Policy Act ("NEPA") and the Clean Water Act ("CWA" or "Section 404") in issuing Defendant-Intervenor the Port of Houston Authority (the "Port") a permit to build the Bayport Project.

The Bayport site is located south of Shoreacres and north of Seabrook, Texas, and is situated along the Bayport Ship Channel, a man-made industrial channel servicing several chemical manufacturing facilities. (AR 2385.10 at 1-3 — 1-4).

On October 8, 1998, the Port applied to the Corps to build the Bayport Project. (AR 3297 at 1). In November 1999, Harris County voters approved $387 million in bonds for the construction of the Bayport Project. (AR 3297 at 2, 34).

NEPA requires Federal agencies to consider the environment during their decision-making processes. It also requires agencies to provide interested parties with an opportunity to participate in the environmental evaluation process. (AR 3297 at 1). In addition, Section 404 of the CWA authorizes the Corps to issue permits, after notice and opportunity for public hearing regarding the discharge of dredged or fill material into waters of the United States, which include jurisdictional wetlands. (Id.).

As required under NEPA, the Corps held an agency scoping meeting and public information workshop in August 1999, at the Pasadena Convention Center to determine the scope of the analysis and the potentially significant effects of the Bayport Project that would be analyzed in the Environmental Impact Statement ("EIS").² (AR 3297 at 2, 66-69; AR 308). Based on the issues identified in that initial meeting, the Port made modifications to the proposed project. The Corps considered the Port's modified proposed project and published a Draft EIS ("DEIS") in November 2001. (AR 3297 at 2, 70). Subsequently, three public workshops organized by the Corps were held during November and December 2001 to provide information to the public regarding the Bayport Project and the DEIS. Two workshops were held in Pasadena and one was held in Houston. (Id.). Public comments on the DEIS were accepted by the Corps through March 13, 2002. Public Notices seeking comments were published by the Corps on April 4, 2002 and on July 22, 2002. The Corps provided a 30-day comment period with each notice. (AR 1929; 3297 at 2).

After performing an additional analysis of the environmental concerns identified by the public comments, the Corps published the Final EIS ("FEIS") on May 16, 2003. (AR 3297 at 2, 70). The Corps accepted public comments on the FEIS through August 16, 2003. (AR 3297 at 2; 2421). The Corps issued another Public Notice on August 12, 2003, which allowed public comments until September 12, 2003 on additional mitigation areas that the Port added to the proposed project to compensate for the planned destruction of wetlands. (AR 3297 at 2).

On June 26, 2003, Plaintiffs, City of Shoreacres, City of Taylor Lake Village Texas, Galveston Bay Conservation and Preservation Association, Galveston-Houston Association for Smog Prevention, Texas Committee on Natural Resources, Galveston Bay Foundation, Houston Audubon Society, Houston Yacht Club, Professionals Involved in Seafood Concerned Enterprises, Gulf Restoration Network ("Plaintiffs" or "Shoreacres"), filed this action against Defendants, Colonel Leonard D. Waterworth, Lieutenant General Robert B. Flowers, Acting Secretary Les Brownlee and the U.S. Army Corps of the Engineers ("Defendants" or "Corps"), claiming that the Corps' prospective issuance of the permit for the Bayport Project did not comply with requirements of (1) the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"); (2) the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. ("NEPA"), and (3) the Clean Water Act, 33 U.S.C. §§ 1251, et seq. ("CWA"). Specifically, Plaintiffs contend that Defendants violated these statutes by failing to conduct the requisite environmental impact and alternative analyses that NEPA and CWA require before issuing the Bayport Project permit. Additionally, Plaintiffs argue that the Corps should deny the Port's permit application because Bayport is not the least environmentally damaging practicable alternative under the CWA.

On December 19, 2003, the Corps issued the Record of Decision, which concluded that the Bayport Project "is not contrary to the public interest and that a Department of the Army permit, with conditions, should be issued." (AR 3297 at 126). The Corps issued a permit to the Port of Houston for construction of the Bayport Project on January 5, 2004.

On January 20, 2003, Plaintiffs filed a Motion for Preliminary Injunction. (Instrument No. 59). Plaintiffs requested that the Court grant a preliminary injunction, preventing any construction of the Bayport Project by the Port and suspending the operation of the Corps permit until the Court could render a decision on the merits of this case. (Id., at 36). Plaintiffs sought the injunction because they believed the Port intended to "bulldoze, and destroy, the many acres of unique wetlands" before a decision could be made on the merits. (Id., at 4). Plaintiffs asserted that the development at Bayport would impose escalating environmental harms including air pollution and noise in the nearby city communities. According to Plaintiffs, the full extent of environmental harms could not be determined due to the violation of NEPA and Section 404 of the Clean Water Act. Plaintiffs claimed that precedent established that the environmental harms and lack of adequate information constituted irreparable harm. (Id.).

On February 10, 2004, Defendants filed their Response to Plaintiffs' Motion for Preliminary Injunction. (Instrument No. 65). Defendants argued that they had invested significant resources into the permit process and that there had been substantial opportunity for public participation throughout the permit process. In addition, the Corps had provided a detailed and comprehensive explanation of its decision and of the information upon which it was based. Defendants also contended that Plaintiffs had failed to show the necessary likelihood that they would prevail on the merits. In such circumstances, Defendants argued that the public interest would not be served by suspending a validly-issued Corps permit and disrupting the legitimate expectations of the applicant to whom the permit was issued, as well as the expectation of the public, who expected to benefit from the completion of this project. (Id., at 38).

A Preliminary Injunction hearing was held on February 27, 2004, where all parties were present and were heard on the issues. After the presentation of evidence, the Port agreed to "stand still" and take no further action in regard to the Bayport Project and the Court offered to expedite the case schedule and ruling. Therefore, pursuant to the Court's Order entered February 27, 2004, the parties filed cross-motions for summary judgment on April 9, 2004 and responses on April 16, 2004.

Plaintiff Shoreacres filed its Motion for Summary Judgment (Instrument No. 92) arguing that the Corps violated specific provisions in NEPA and the CWA. Specifically, Plaintiffs contend that the Corps made six individual violations in the permitting process. Plaintiffs argue that the Corps was arbitrary and capricious by refusing to analyze the potential dredging of a fifty foot ship channel, failing to address "community cohesion", undercounting the acres of the jurisdictional wetlands, as well as failing to approve the least damaging practicable alternatives, i.e. Shoal Point and Pelican Island. Plaintiffs also contend that the Corps violated its duty under NEPA by failing to analyze the Bayport and Shoal Point projects together as a cumulative action — in the same EIS. Additionally, Shoreacres believes that it was arbitrary and capricious for the...