Galveston Bay Conser. and Preserv. V. U.S. Army

• Decision Date: 09 July 1999
• Docket Number: No. CIV. A. G-98-228.,CIV. A. G-98-228.
• Citation: 55 F.Supp.2d 658
• Parties: GALVESTON BAY CONSERVATION AND PRESERVATION ASSOCIATION v. THE UNITED STATES ARMY CORPS OF ENGINEERS, et al.
• Court: U.S. District Court — Southern District of Texas

55 F.Supp.2d 658

GALVESTON BAY CONSERVATION AND PRESERVATION ASSOCIATION v. THE UNITED STATES ARMY CORPS OF ENGINEERS, et al.

No. CIV. A. G-98-228.

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

July 9, 1999.

James B Blackburn, Jr, Blackburn & Carter, Houston, TX, for Galveston Bay Conservation and Preservation Association, plaintiff.

Eileen T McDonough, DOJ, Environmental Defense Section, Washington, DC, Daniel Keys, III, U S Army Corps of Engineers, Galveston, TX, Wendy L Blake, U.S. Dept of Justice, Environmental Defense Section, Washington, DC, for U.S. Army Corps of Engineers, Eric R Potts, Togo D West, defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

KENT, District Judge.

Plaintiff, the Galveston Bay Conservation and Preservation Association ("the Association"), contends that certain Army officials and the U.S. Army Corps of Engineers ("the Corps") reissued permits under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, in violation of regulations which require the Corps to provide public notice and comment before making such a decision. Now before the Court are Plaintiff's Motion for Summary Judgment and Defendants' Response and Cross-Motion for Summary Judgment. For the reasons stated below, Defendants' Motion is GRANTED and Plaintiff's Motion is DENIED.

I. FACTS

The Corps issued two permits, pursuant to Section 404 of the Clean Water Act, to Marina Del Oro ("Marina"). The permits were issued in connection with the construction of a planned resort development on Smith Point in Chambers County, Texas. The first permit, issued in 1987, authorized Marina to perform certain dredging activities and to fill specified wetland areas ("the Dredging Permit"). The second permit, issued in 1991, authorized Marina to construct a facility in Kemah extending into Galveston Bay in order to operate a hovercraft system that will provide transportation between the resort and the Clear Lake area ("the Hovercraft Permit"). When issued, each permit was valid for three years.

Complications arose, primarily with financing, that prevented Marina from meeting the permit expiration dates. As a result, Marina sought and the Corps approved several permit extensions, most recently in 1997. Before approving a requested extension in 1994 for the Dredging Permit, the Corps provided public notice and sought public comment. In all other instances, the Corps approved the extensions without providing for public notice or comment. Under the Code of Federal Regulations, 33 C.F.R. § 325.6(d), the Corps is authorized to approve a permit extension without public notice or comment if the Corps determines that there have been "no significant changes in the attendant circumstances" since issuance of the permit.

The Association contends that in 1997 there had been "significant changes in the attendant circumstances" surrounding the Marina project, namely proposed additions to the Marina's project, passage of a Coastal Management Plan in Texas and the institution of the Galveston Bay Comprehensive Conservation and Management Plan, expansion of the Anauhac National Wildlife Refuge and creation of the Candy Abshier Wildlife Management Area, and the granting of approval for widening and deepening the Houston Ship Channel. The Association claims that these changed circumstances necessitated that the Corps provide for public notice and allow for public comment before approving the 1997 permit extensions. The Association therefore requests that the Court vacate the permit extensions and require the Corps to seek public comment before making a decision granting the permit extensions to Marina.

II. STANDARD OF ANALYSIS

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56. Rule 56(e) requires that when a motion for summary judgment is made, the nonmoving party must set forth set forth specific facts showing that there is a genuine issue for trial. Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In the instant case, the parties have stipulated that judicial review be limited to the administrative record.

III. ANALYSIS

The fundamental purpose of the Clean Water Act is to prohibit the discharge of pollutants without a permit. See 33 U.S.C. §§ 1311, 1344. In the case of wetlands, the Act prohibits discharge of fill material except pursuant to a permit issued by the U.S. Army Corps of Engineers. See id. The Corps is therefore responsible for issuing and enforcing permits. As the United States Supreme Court has stated: "considerable respect is due the interpretation given [a] statute by the officers or agency charged with its administration." Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980) (quoting Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978)). The Supreme Court went on to state that "an agency's construction of its own regulations is entitled to even greater deference." Id. And specifically with respect to the Clean Water Act, the United States Court of Appeals for the Fifth Circuit has noted that "Congress has delegated substantial authority to the EPA administrator, and with respect to the dredge-and-fill permits, to the Corps, for the implementation of the [Clean Water Act]." Avoyelles Sportsmen's League, Inc., v. Marsh, 715 F.2d 897, 911 (5th Cir.1983).

The Administrative Procedure Act, ("APA"), 5 U.S.C. § 706, sets forth the judicial standard for review of an agency decision. The APA provides that courts may set aside agency action found to be: (1)"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" or (2) "without observance of procedure required by law." 5 U.S.C. § 706(2)(A),(B). The standard for review is deferential. In other words, the agency's decision "need not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave at least minimal consideration to relevant facts contained in the record." Harris v. United States, 19 F.3d 1090, 1096 (5th Cir.1994) (citation and footnote omitted). A reviewing court is not "empowered to substitute its judgment for that of the agency." Bowman Trans. Inc. v. Arkansas-Best Freight Sys. Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974) (citation omitted).

In the instant case, the Association argues that in granting the contested permit extensions, the Corps violated 33 C.F.R. § 325.6(d) which states in relevant part:

Requests for extensions will be processed in accordance with the regular procedures of § 325.2 of this part [Processing of Applications], including issuance of a public notice, except that such processing is not required where the district engineer determines that there have been no significant changes in the attendant circumstances since the authorization was issued.

The first step in the Association's argument is that this language establishes a presumption in favor of public notice that should only be overcome when the Corps first "gather...