City of Shoreacres v. Waterworth

Citation420 F.3d 440
Decision Date08 August 2005
Docket NumberNo. 04-20527.,04-20527.
PartiesCITY OF SHOREACRES; et al., Plaintiffs, City of Shoreacres; City of Taylor Lake Village, Texas; Galveston Bay Conservation and Preservation Association; Texas Committee on Natural Resources; Galveston Bay Foundation; Houston Yacht Club; Professionals Involved in Seafood Concerned Enterprises; Gulf Restoration Network; City of Seabrook; City of El Lago, Plaintiffs-Appellants, v. Leonard D. WATERWORTH, Colonel, District Engineer, Galveston District-U.S. Army Corps of Engineers; Robert B. Flowers, Lieutenant General, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Les Brownlee, Acting Secretary of the Army; United States Army Corps of Engineers, Defendants-Appellees, Port of Houston Authority, Intervenor Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Judith R. Blakeway, Strasburger & Price, San Antonio, TX, for City of Seabrook.

John A. Bryson (argued), U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for District-U.S. Army Corps of Engineers, Robert B. Flowers, Les Brownlee and United States Army Corps of Engineers.

Sharon M. Mattox (argued), Vinson & Elkins, Houston, TX, for Port of Houston Authority.

Nathan Allan Wesely, Royston, Rayzor, Vickery & Williams, Houston, TX, for West Gulf Maritime Ass'n, Amicus Curiae.

Gregory Thomas Broderick, Pacific Legal Foundation, Sacramento, CA, for Pacific Legal Foundation and John A. Rapanos, Amici Curiae.

Anthony G. Buzbee, Buzbee Law Firm, Galveston, TX, for International Longshoremen's Ass'n Local No. 24, International Longshoremen's Ass'n Local No. 28, International Longshoremen's Ass'n Local No. 1530 and International Longshoremen's Ass'n Local No. 1351, Amici Curiae.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, SMITH and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiffs-appellants brought this suit under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., against the United States Army Corps of Engineers (Corps) seeking recision of a 33 U.S.C. § 1344 dredge and fill permit issued by the Corps to the Port of Houston (Port) for the construction of a ten-berth cargo and cruise ship terminal adjacent to the Bayport Shipping Channel off Galveston Bay. The district court granted summary judgment to the Corps and the intervenor Port. We affirm.

Facts and Proceedings Below

On October 8, 1998, the Port filed an application with the Corps for a 33 U.S.C. § 1344 permit to dredge and fill navigable waters of the United States. The Port proposed building a cargo and cruise ship terminal on undeveloped land adjacent to the Bayport Shipping Channel along the northwestern coast of Galveston Bay. The plan called for seven cargo ship berths, three cruise ship berths, and extensive ancillary facilities along a region of the coast that is heavily industrialized. The Port intends to finance the Bayport project with proceeds from a $387 million 1999 bond issue for that purpose approved by the voters of Harris County, Texas in which both the Port and Bayport are located.

The Corps undertook the comprehensive technical and public interest review required by the Code of Federal Regulations. See, e.g., 33 C.F.R. § 230 (procedures for implementing NEPA); 33 C.F.R. § 320 (outlining the Corps' general regulatory policy); 40 C.F.R. § 1502 (preparation of an environmental impact statement). Following public input and preliminary technical work, the Corps issued its Draft Environmental Impact Statement (DEIS) on November 12, 2001. The Corps continued its technical work and accepted public comment on the DEIS until August 2002. Nine months later, on May 16, 2003, the Corps issued its Final Environmental Impact Statement (FEIS) and entertained further public comment until August 2003. The Corps then issued its eight-volume Record of Decision (ROD) on December 19, 2003, in which the Corps approved a plan for the construction of the Bayport terminal and the mandatory preservation of undeveloped areas elsewhere to compensate for the environmental loss at Bayport. The Corps granted the 33 U.S.C. § 1344 dredge and fill permit on January 5, 2004, over five years after the permit application was filed.

Meanwhile, as the Corps was considering the Bayport permit application, it was also considering a similar dredge and fill permit application filed in April 2000 by Texas City, Texas to build a six-berth cargo terminal at Shoal Point in Galveston County along the southwestern coast of Galveston Bay. The Corps issued a permit to Texas City on April 23, 2003, approximately one month before it handed down its FEIS on the Port's Bayport permit application.

On January 29, 2004, appellants filed their second (and final) amended complaint asking the district court to vacate the permit and enjoin the Port from proceeding with the Bayport project because the Corps had issued the permit in violation of the CWA and NEPA.1 Appellants also sought a preliminary injunction against construction while judicial review was pending. Rather than rule on this motion, the district court agreed to an expedited pretrial schedule and a summary judgment ruling by May 4, 2004. The Port then agreed to "stand still" while the case went forward through summary judgment. The parties filed cross-motions for summary judgment in April 2004, and the district court granted summary judgment to appellees and against appellants on May 4, 2004. Final judgment was entered the same day.

Discussion
1. Standard of Review

We review a grant of summary judgment de novo under the same standard applied by the district court. Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).

The decision of the Corps to grant a permit under 33 U.S.C. § 1344 is reviewed under the standard set forth in the Administrative Procedures Act, 5 U.S.C. § 701 et seq. We will "hold unlawful and set aside" the Corps' permit to the Port only if we determine that the Corps' "action, findings, and conclusions" are, inter alia, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Shell Offshore v. Babbitt, 238 F.3d 622, 627 (5th Cir. 2001). "We accord substantial weight" to the Corps' interpretation of its permit granting authority under 33 U.S.C. § 1344 because "`[a]n agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress.'" Save Our Community v. USEPA, 971 F.2d 1155, 1163 (5th Cir. 1992) (quoting United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985)); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir. 1983) ("This standard of review is highly deferential"); Sabine River Authority v. U.S. Dep't of Interior, 951 F.2d 669, 678 (5th Cir. 1992) ("[u]nder this highly deferential standard of review, a reviewing court has the `least latitude in finding grounds for reversal'") (quoting North Buckhead Civic Assoc. v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990)). "We must look at the decision not as the chemist, biologist or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality." Avoyelles, 715 F.2d at 905 (internal quotation marks and citation omitted).

This deferential standard of review applies regardless of whether we are reviewing the Corps' decision under the CWA or NEPA.

2. The Clean Water Act
a. Determination of Wetlands Jurisdiction

The centerpiece of appellants' challenge to the dredge and fill permit is that the Corps erroneously determined the extent of its regulatory jurisdiction over the wetlands at the Bayport site.2 Appellants maintain the entire approximately 146 acres of wetlands at the Bayport site constitutes jurisdictional wetlands, substantially more than what the Corps concluded were present (the Corps found only 19.7 acres of jurisdictional wetlands, as well as 126.7 acres of non-jurisdictional wetlands and 1.56 acres of intertidal mud flats). Appellants contend that the Corps, by undercounting the acreage within its wetlands jurisdiction, corrupted the entire decisional process under the CWA.3

According to the ROD, the Corps, using its Wetlands Delineation Manual, initially determined on April 28, 1999, that there were 102 acres of wetlands at the Bayport site subject to its regulatory jurisdiction.4 The Corps concluded, however, that it needed to reevaluate its jurisdictional determination after the Supreme Court handed down Solid Waste Agency v. United States Army Corps of Eng'rs, 531 U.S. 159, 121 S.Ct. 675, 683-84, 148 L.Ed.2d 576 (2001) (holding that the "migratory bird rule," upon which much of the Corps' initial determination in this case had been predicated, overreached the Corps' authority under the Clean Water Act). After re-surveying Bayport, the Corps concluded that of the total some 146 acres of wetlands at the site only 19.7 acres came within its jurisdiction. The Corps then evaluated the Port's permit application in light of this determination.

We do not find it necessary to consider the several ways in which appellants challenge the Corps' jurisdictional determination. In the ROD, the Corps responded point-by-point to substantive public questions about its...

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