Gouger v. U.S. Army Corps of Engineers

Decision Date15 March 2011
Docket NumberCA. No. 6:10–CV–18.
Citation779 F.Supp.2d 588
PartiesBarry L. GOUGER, et al.v.U.S. ARMY CORPS OF ENGINEERS, et al.
CourtU.S. District Court — Southern District of Texas

779 F.Supp.2d 588

Barry L. GOUGER, et al.
v.
U.S. ARMY CORPS OF ENGINEERS, et al.

CA. No. 6:10–CV–18.

United States District Court, S.D. Texas, Corpus Christi Division.

March 15, 2011.


[779 F.Supp.2d 592]

Mary W. Carter, James B. Blackburn, Jr., Blackburn Carter P.C., Houston, TX, for Plaintiff.Christina Louise Richmond, Jody Helen Schwarz, U.S. Department of Justice, Washington, DC, for Defendant.
ORDER
JANIS GRAHAM JACK, District Judge.

On this day came on to be considered Plaintiffs' Motion for Summary Judgment (D.E. 38) and Federal Defendants' Motion for Summary Judgment (D.E. 37). For the reasons stated herein, Plaintiffs' Motion for Summary Judgment is DENIED (D.E. 38) and Federal Defendants' Motion for Summary Judgment is GRANTED (D.E. 37).

I. Jurisdiction

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), as this action arises under the Administrative Procedure Act, 5 U.S.C. § 701–706, the Clean Water Act, 33 U.S.C. § 1251, et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321, et seq.

II. Factual Background

This lawsuit is the latest development in a long-running dispute between Plaintiffs, the Army Corps of Engineers, and Mr. Jay Lack, who first sought a permit in 2002 to develop his property along the Gulf Intracoastal Waterway (“GIWW”). Plaintiffs are property owners in the Dolphin Point Subdivision in Port O'Connor, Texas, which is located across the street from the property at issue.1 Defendants are (1) the U.S. Army Corps of Engineers (the “Corps”), (2) Colonel Christopher W.

[779 F.Supp.2d 593]

Sallese, who is sued in his official capacity as District Engineer of the Galveston District of the Corps, (3) Lieutenant General Robert L. Van Antwerp, who is sued in his official capacity as Commander and Chief of Engineers of the Corps, and (4) John M. McHugh, who is sued in his official capacity as the Secretary of the Army. (D.E. 30 at 4–5.)A. 2003 Permit

In May 2002, the Corps received an application from property owner Jay Lack (the “Applicant”) for a Department of the Army Permit (“DA Permit”) to “provide waterfront marine docking and service facilities” on property adjacent to the GIWW in Port O'Connor, Calhoun County, Texas (the “Property”). (A.R. 292–293; 419.) 2 The Applicant proposed to fill wetlands under U.S. Environmental Protection Agency (“EPA”) guidelines, consistent with Section 404 of the Clean Water Act, 33 U.S.C. § 1344. The application stated, “[a]pproximately 0.59 acres of area meeting the criteria of wetland would be filled. The Applicant is proposing 1:1 compensation for wetland impacts. The action also includes filling 0.16 acres of tidal waters for recovery of private property lost to erosion from dredging of the intercoastal [sic] canal and associated marine traffic.” (A.R. 293.) Three hundred ninety feet of bulkhead would also be constructed under the proposal. (A.R. 547.)

The Corps issued a public notice regarding the permit application on March 18, 2003. (A.R. 446–454.) Certain residents of the Dolphin Point subdivision, including Plaintiff Glenn Ralston, voiced their objection to the original permit. Mr. Ralston stated, “I strongly oppose any development of the wetland area involved in the Application No. 22722 for the simple reason that the fish and wildlife will be misplaced from their natural habitat.... I see no reason, nor, do I see any public advantage to be had by developing a pristine area for private gain.... There is no amount of off-site mitigation that can replace the damage that will be done to this wetland area as well as to the people who are fortunate enough to see the wildlife and sea creatures in their natural environment.” (A.R. 463; 469.) The Corps determined in its 2003 Environmental Assessment / Statement of Findings (“EA/SOF”) that the project was needed to meet demands for new docking facilities in light of increased growth in the area. (A.R. 518.)

DA Permit 22722 was issued to Jay Lack on November 13, 2003, permitting the construction of a commercial waterfront marina and docking facility. 3 (A.R. 547–559.) The work authorized under the Permit was to be completed by December 31, 2008. (A.R. 547.) The Permit was issued under the authority of the Rivers and Harbors Act, Section 10, 33 U.S.C. § 403, and Clean Water Act, Section 404, 33 U.S.C. § 1344. ( Id.)

B. Pelican Landing

Plaintiffs contend that, contrary to the Permit's authorization and contrary to Mr. Lacks' representations to the Corps, a residential development named “Pelican Landing” was advertised on the Property as early as 2005 or 2006. ( See, e.g., A.R.

[779 F.Supp.2d 594]

296–297; A.R. 729–763.) 4 No authorization for such development, however, had been sought. Plaintiffs, through counsel, sent the Corps a letter dated April 17, 2006, asking it to revoke Permit 22722, due to Mr. Lack's alleged non-compliance with its terms. (A.R. 775–777.) The Corps responded on April 24, 2006, stating that it was investigating the matter. (A.R. 779.) The Corps sent Mr. Lack a letter dated April 28, 2006, in which it informed him that his permit was for a marine docking facility, not residential housing. The Corps stated that Mr. Lack's recent activities constituted a change in the project, and meant that the work he was planning to do was not in compliance with the Permit. The letter also noted that Mr. Lack had not yet begun the required mitigation work (ie, construction of replacement wetlands), also in violation of his permit. (A.R. 780–781.) Mr. Lack responded, stating that mitigation would be completed by November 15, 2006, and that changing economics caused him to change the project from a marine docking facility to residential homes. He explained that the change was “the only way [to] alleviat[e] the large tax burden [he] is now having to undertake and be able to recoup [his] expenses in what was going to be a marine docking facility.... Due to these economic factors, the project as originally planned can no longer be profitable, thus creating a financial hardship for [him].” (A.R. 787–788.)

Thereafter, on May 2, 2006, Plaintiffs' counsel, Blackburn Carter, issued a Notice of Intent to Sue (“NOI”) regarding Permit 22722, pursuant to the Clean Water Act, 33 U.S.C. § 1365(a)(1), (b)(1)(A). This NOI informed the Corps that Lack was not building a marina and T–Head piers, but rather a residential development, and such a subdivision was not water-dependent. (A.R. 303–337; A.R. 565–568.) The Corps responded on June 29, 2006, stating that Lack had “voluntarily agreed to bring his project into full compliance with the terms and conditions of Permit No. 22722, so as to complete the original, authorized purposes of constructing a bulkhead and marine facilities.” (A.R. 299–300; 572–573.) Mr. Lack had previously written to the Corps on June 9, 2006, confirming that “we are in the process of completing our permit 22722 as originally proposed. We are removing the for[ ] sale sign. I am going to refund and transfer title back to the group ....” (A.R. 301; A.R. 569.) The Corps accepted Mr. Lack's representations. (A.R. 797–798; A.R. 832–833.)

A few months later, on September 6, 2006, the Corps sent another letter to Mr. Lack, inquiring into the progress of the required mitigation work. The Corps requested that Lack provide it with “an explanation for the delay in starting the mitigation project, how [Mr. Lack] will deal with this problem(s), and a timetable with specific dates for getting this project completed.” (A.R. 801–803.) Mr. Lack responded the next day, explaining that the delay was due to logistical issues such as problems locating equipment, and promising to begin the work on September 19, 2006, completing it no later than October 1. (A.R. 805–814.) Placement of fill into the wetlands pursuant to Permit 22722 and construction of the bulkhead was completed in 2007. The required mitigation occurred in November 2006, when Mr. Lack planted the area with smooth cordgrass ( Spartina alterniflora ), and the site was replanted in late 2008. (A.R. 366–367.)

[779 F.Supp.2d 595]

C. 2009 Revised Application

On January 9, 2007, Mr. Lack wrote to the Corps formally requesting a modification of Permit 22722. He explained the reasons for his requested modification as follows:

Due to circumstances beyond my control, which have caused economic and financial hardship to me, I am writing to request a change of use for the [property].... Current conditions have made the original intended use of the site as a marine docking facility unfeasible at this time. Offshore oil companies have left Port O'Connor, or gone to using helicopters to reach their platforms. This was one of the main targets I was going for in construction of the marine docking facility. The area covered by water adjacent to my land is also considerably shallower than we had originally thought, therefore making it more dangerous for offshore boats to dock. Calhoun County has also had a significant rise in taxes over the last three years, which was unforeseen by everyone in the County....

There is a shortage for residences with waterfront access. These are the reasons I am seeking a change of use. What I propose is for seven single family residential lots to be allowed on the ... property. Each lot owner would be allowed to build a single family residence with permanent docking for their boat(s). [This would] reliev[e] me of the financial hardships I have incurred in constructing the project as authorized under permit 22722....

The significant difference would be the addition of seven permanent structures which would actually help the aesthetics of the area.... I see this as nothing but positive for this and neighboring areas. (A.R. 01–02 (emphasis added).)

On April 17, 2007, Mr. Lack submitted his request for modification, in which he stated that the project purpose was “to provide waterfront lots for residential homes.” (A.R. 028.) Mr. Lack also requested permission to...

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