Fritiofson v. Alexander

• Decision Date: 07 October 1985
• Docket Number: No. 84-2592,84-2592
• Citation: 772 F.2d 1225
• Parties: , 15 Envtl. L. Rep. 21,070 Eva FRITIOFSON, et al., Plaintiffs-Appellees, v. Clifford ALEXANDER, Jr., Secretary of the Army, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1225

772 F.2d 1225

23 ERC 1297, 15 Envtl. L. Rep. 21,070

Eva FRITIOFSON, et al., Plaintiffs-Appellees, v. Clifford ALEXANDER, Jr., Secretary of the Army, et al Defendants-Appellants.

No. 84-2592.

United States Court of Appeals, Fifth Circuit.

Oct. 7, 1985.

Daniel K. Hedges, U.S. Atty., James R. Gough, Asst. U.S. Atty., Robert N. Hinton, Jr., Charles T. Newton, Jr., Sharon M. Mattox, Houston, Tex., William Lazarus, David C. Shilton, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendants-appellants.

Robert M. Moore, Wesley C. Johnson, Galveston, Tex., for plaintiffs-appellees.

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

Before RANDALL, DAVIS and HILL, Circuit Judges.

RANDALL, Circuit Judge:

Eleven years ago, a home developer applied for a federal permit to dredge canals in the navigable waters around Galveston Island, Texas. From the beginning, environmental groups and neighboring landowners have fought against the development. They sought first to persuade, and then to compel, the Army Corps of Engineers to prepare a formal environmental impact statement, under the provisions of the National Environmental Policy Act before issuing the permit to dredge. Their attempts to persuade failed; the developer obtained a permit without preparation of an environmental impact statement. Their attempts to compel, on the other hand, could not have been more successful. The District Court for the Southern District of Texas, principally because the Corps did not adequately consider "cumulative impacts," enjoined the developer from performing work under the permit and ordered the Corps of Engineers to prepare a comprehensive environmental impact statement on the whole of West Galveston Island. 592 F.Supp. 120 (S.D.Tex.1984). The court also enjoined the Corps of Engineers from granting additional dredging permits for this project or for any similar project on the west end of the island until the environmental impact statement is completed.

Both the developer and the Corps of Engineers have appealed. The developer argues that the environmental assessment of the project that has already been prepared is adequate and that a formal impact statement is not required. The Corps of Engineers, on the other hand, argues that, although the environmental assessment may be inadequate, the district court should at most have remanded the case to the Corps for reconsideration of cumulative impacts. Both appellants claim alternatively that determining the scope of an environmental impact statement is an administrative function, not a judicial one, and that, even if it can now be said that an environmental impact statement is required, the district court erred by defining the precise parameters of the statement.

We agree with the district court that the Corps has not performed an adequate analysis of the cumulative impacts that may flow from this and other developments on West Galveston Island. We also agree, however, with the developer and the Corps that the district court should not have ordered the preparation of an impact statement at this stage in the process. Because of the Corps' failure to conduct the proper study, it is too early to tell whether an impact statement is needed. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The northern shore of Galveston Island, which fronts on Galveston Bay, is riddled with lakes, coves and bayous. The shoreline consists of marshlands and mud flats. From a developer's point of view, this area is ideal for the construction of "venetian" housing developments which consist of homes built along the shores of manmade canals. There are several developments of this type on the western end of Galveston Island. Homeowners there can store their boats in the canals and have immediate access, for recreational purposes, to the waters of Galveston Bay.

Just west of Eleven Mile Road, a small peninsula with Hoecker's Point at its end extends into the bay from the north shore of Galveston Island. The waters of Delehide Cove form the western boundary of the peninsula; Eckert's Bayou (sometimes called Tucker's Bayou) lies to the east. Mitchell Development Corporation of the Southwest ("Mitchell") owns a tract of land at the base of this peninsula, near the southern end of Eckert's Bayou. The property lies about five miles west of the City of Galveston. At some point during the pendency of this controversy, the city annexed the property. We understand that it now lies within a tax zone that provides incentives for development.

For many years, Mitchell has been trying to build a venetian-style housing development, similar to others along the northern shore of West Galveston Island, on this waterfront property. The development will be called Pirate's Cove Section 6. Eckert's Bayou, the proposed development's link to Galveston Bay, is a saltwater estuary. Mitchell's property, which borders the bayou, contains important saltwater and freshwater wetlands. There are, for example, approximately fifteen acres of freshwater marsh on the property. This area, according to some experts, constitutes the "largest natural fresh marsh complex remaining on Galveston Island." Important marsh grasses, including spartina alterniflora, grow in the forty-four acres of saltwater wetlands that are located within the boundaries of Section 6. Many species of fish and wildlife live in these wetlands and in the bayou itself. Mitchell's property also contains a rare coastal woodlot--one of the largest and best of only twenty-two on the Texas Gulf coast--that provides an important rest area for migratory birds. The woodlot is known as Live Oak Grove. The rest of Section 6 consists primarily of grazed grasslands. The property, in addition, houses a Kanankawa Indian archeological site.

Construction of Section 6 will require excavation from navigable waters and the discharge of dredged materials. Mitchell must, therefore, obtain a Department of the Army permit before commencing work. See Rivers and Harbors Act of 1899, 33 U.S.C. Sec. 403; Clean Water Act, 33 U.S.C. Sec. 1344. The Secretary of the Army has delegated the authority to grant such permits to the appropriate district engineer of the Army Corps of Engineers ("Corps"). See 33 C.F.R. Sec. 320.1(a)(2).

On July 20, 1974, Mitchell applied to the Corps' Galveston District for a permit (1) to dredge a channel in Eckert's Bayou; (2) to dredge a canal connecting Eckert's Bayou with Delehide Cove; (3) to dredge on its property a system of canals and to thereby extend the waters of Eckert's Bayou inland; and (4) to construct bulkheads, piers, and boat launches in the canals. The proposed dredging and construction were part of Mitchell's overall plan to build a 475-unit venetian-style housing development on a 145-acre tract. As finally submitted, the plans proposed extensive dredging of material from the floor of Eckert's Bayou and surrounding areas. Mitchell planned to use some of the material as fill during construction and to place the rest in designated spoil areas that will be fortified where necessary by levees. The plans called for the destruction of all of the freshwater marsh on the property, a small area of saltwater marsh, and a significant number of trees in Live Oak Grove. Mitchell also proposed, however, to preserve as a park portions of Live Oak Grove and the archeological site.

The Corps notified the public and other federal agencies that the application had been filed. Mitchell met on many occasions with representatives of the United States Fish and Wildlife Service ("USFWS") and the National Marine Fisheries Service ("NMFS") to discuss objections that both agencies had to the proposed project. As a result of these discussions, Mitchell agreed to redesign the canals to reduce the amount of saltwater marsh that will be destroyed by the development, to designate an additional spoil site, and to take steps to ensure water quality in the canals. Neither NMFS nor USFWS requested preparation of an environmental impact statement. Both agencies, however, commented on the ecological importance of Section 6 and expressed concern about the proliferation of development in the area. NMFS said:

We are confident that the [Mitchell] project alone will not severely affect the productivity of West Bay.... However, we are concerned with the cumulative effects of the proliferation of waterfront housing developments on this estuary. Ten such developments with box-cut canals already exist along West Bay and its tributary bayous, and the Mitchell Corporation has plans for several other sections of waterfront housing developments in the Hoeckers Cove-Tucker Bayou area. We fear that such development may be approaching the level whereby the quality of water and habitat throughout the West Bay would become degraded.

We, therefore, further recommend that an Environmental Impact Statement be prepared by the Corps of Engineers ... before granting any permits for future waterfront housing developments in West Bay or its tributary bays and bayous.

(Emphasis added.) ¹ This recommendation was included in nearly every subsequent communication from NMFS to the Corps.

The Corps recognized from the outset that its action on Mitchell's application triggered responsibilities under the National Environmental Policy Act, 42 U.S.C. Secs. 4331 et seq. ("NEPA"), which requires in certain circumstances the preparation of environmental impact statements ("EIS") prior to federal action affecting the environment. The Corps made a preliminary determination, however, that, on these facts, NEPA did not require the preparation of an EIS, and that the Corps could discharge its NEPA responsibilities by conducting a less comprehensive review known as an environmental assessment ("EA"). This determination, which was included in the public notice, triggered...