Stewart v. Potts

• Decision Date: 06 March 1998
• Docket Number: No. CIV. A. G-96-282.,CIV. A. G-96-282.
• Citation: 996 F.Supp. 668
• Parties: Sharron STEWART, Houston Audubon Society, and Sierra Club v. Eric R. POTTS, District Engineer; U.S. Army Corps of Engineers, Galveston District; Togo D. West, Jr., Secretary of the Department of the Army; the City of Lake Jackson; and James Martin, Mayor.
• Court: U.S. District Court — Southern District of Texas

Page 668

996 F.Supp. 668

Sharron STEWART, Houston Audubon Society, and Sierra Club v. Eric R. POTTS, District Engineer; U.S. Army Corps of Engineers, Galveston District; Togo D. West, Jr., Secretary of the Department of the Army; the City of Lake Jackson; and James Martin, Mayor.

No. CIV. A. G-96-282.

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

March 6, 1998.

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James B. Blackburn, Jr., Blackburn & Carter, Richard Roberts Morrison, IV, Blackburn and Carter, Houston, TX, for plaintiffs.

Lois J. Schiffer, DOJ, Environment and Natural Resources Div., Eileen T. McDonough, DOJ, Environmental Defense Section, Donna Fitzgerald, DOJ, General Litigation Section, Washington, DC, Mellie M. Billingsley, U.S. Army Corps of Engineers, General Counsel, Galveston, TX, Daniel M. Flores, DOJ, Environmental Defense Section, Washington, DC, Barry Abrams, Abrams Scott and Bickley, Houston, for defendants.

ORDER

KENT, District Judge.

Plaintiffs Sharron Stewart, Houston Audubon Society, and Sierra Club bring this action against the United States Army Corps of Engineers (the "Corps"), Colonel Eric R. Potts in his official capacity as District Engineer of the Corps,¹ and Togo D. West in his official capacity as Secretary of the Department of the Army (collectively, the "Federal Defendants").² Plaintiffs seek injunctive and other relief pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706, the Clean Water Act, 33 U.S.C. § 1251 et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201, for violations of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and the Clean Water Act.³ Now before the Court are the Federal Defendants' Motion for Summary Judgment and the Plaintiffs' Motion for Summary Judgment, both filed on December 29, 1997. For the reasons stated below, both Motions for Summary Judgment are GRANTED IN PART and DENIED IN PART.

I. STATUTORY FRAMEWORK

A. The Section 404 Permit Program

The Clean Water Act ("CWA") is a comprehensive statute, designed "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Consistent with that goal, the CWA prohibits the discharge into navigable waters of any pollutant, including dredged or fill material, unless authorized by a CWA permit. 33 U.S.C. § 1311(a). CWA section 404, 33 U.S.C. § 1344, is the provision which regulates the Corps' issuance of such permits. "Navigable waters" is defined broadly to include all "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). "Waters of the United States" are defined to include "wetlands adjacent to [such] waters." 40 C.F.R. § 230.3(s)(7). Wetlands, in turn, are defined as "areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." 33 C.F.R. § 328.3(b).

The Corps issues "jurisdictional determinations" in determining whether a proposed activity will result in a discharge into a wetland or other water of the United States, thus requiring a section 404 permit. These findings determine "the applicability of the [CWA] ... to activities or tracts of land and the applicability of general permits or statutory exemptions to proposed activities." 33 C.F.R. § 320.1(a)(6).

B. The National Environmental Policy Act

The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, requires federal agencies to prepare an environmental impact statement ("EIS") to be included in every major Federal action that significantly affects the quality of the human environment. 42 U.S.C. § 4332(2)(C). The issuance of a section 404 permit by the Corps of Engineers is deemed to be a "major Federal action" to which NEPA's mandates apply. See Sierra Club v. Sigler, 695 F.2d 957, 964 (5th Cir.1983).⁴ NEPA is a procedural act, mandating a process rather than a result. See Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir.1994). NEPA does not require that an agency select an environmentally favorable course of action, but only that the agency make its decision to proceed with a particular action after taking a "hard look" at the potential environmental consequences. Sabine River Auth. v. United States Dep't of Interior, 951 F.2d 669, 676 (5th Cir.1992) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989)). NEPA prohibits uninformed, not unwise, agency actions. Sabine River, 951 F.2d at 676.

An EIS must contain a "detailed statement of the expected adverse consequences of an action, the resource commitments involved in it, and the alternatives to it." Kleppe v. Sierra Club, 427 U.S. 390, 401-02, 96 S.Ct. 2718, 2726-27, 49 L.Ed.2d 576 (1976). In order to determine whether an EIS is required, the agency usually prepares an environmental assessment ("EA"), which is a rough, less detailed statement intended to determine whether environmental impacts are significant enough to require the preparation of an EIS. Espy, 38 F.3d at 802. If the EA concludes that the action will have no significant impact on the quality of the human environment, no EIS is required. Id. at 796.

II. FACTUAL BACKGROUND

This litigation arises over the Corps' issuance under CWA section 404 of Permit No. 20271 to the City of Lake Jackson to construct a golf course. The golf course as proposed will be constructed on a 200-acre tract of forest and wetlands adjacent to the Brazos River near the Gulf of Mexico in Lake Jackson, Brazoria County, Texas. In 1979, the City of Lake Jackson created a comprehensive development plan, which included plans for a public golf course. Ten years later, the City purchased a 400-acre tract of land, located within its extraterritorial jurisdiction, for the purpose of constructing the golf course. The City then began implementing the procedures necessary to approve the construction of the golf course.

In November of 1990, the City requested that the Corps make a jurisdictional determination of the 400-acre tract. At the outset, the Corps identified a large area of wetlands concentrated on the lower 200 acres of the tract. Following this identification, the City scaled down the golf course design, deciding to build an eighteen-hole course rather than a thirty-six hole course, so as to avoid impacting the substantial wetlands on the lower 200 acres.

The upper 200 acres of the tract are part of a 1,200 contiguous acre parcel of bottomland hardwoods forest. In December of 1992, the City submitted a delineation of this tract to the Corps, with its own assessment that the property contained 7.15 acres of jurisdictional wetlands. Disagreeing with this number, the Corps conducted intensive redelineation in consultation with the U.S. Department of Agriculture's Natural Resource Conservation Service, and ultimately determined that the upper 200-acre tract contained 24 .34 acres of jurisdictional wetlands. Abiding by the Corps' determination, the City then redesigned its golf course, avoiding all but approximately two acres of scattered "fringe" wetlands. The impacted wetlands range in size from a couple of feet in diameter to less than one-quarter of an acre each.

In conducting its delineation of the jurisdictional wetlands, the Corps worked extensively with the Environmental Protection Agency ("EPA") and the U.S. Fish and Wildlife Service ("FWS"). The Corps also enlisted the aid of the U.S. Department of Agriculture to participate in field investigations of the wetland soils. The Corps invited the EPA and the FWS to attend a delineation verification on June 21, 1994, at which time the EPA and the FWS agreed that the Corps' delineation methods were sound. However, the representative from the FWS indicated that he may have concerns about the delineation process if the City applied for a permit, due to a need for more information. Thereafter, on June 28, 1994, the Corps submitted the delineation to the EPA, which is the agency charged with oversight of the section 404 program, for approval. On August 24, 1994, the EPA concluded that the Corps' determination represented "a reasonable interpretation of the geographic extent of jurisdictional waters of the United States including wetlands." The EPA further affirmed that the Corps' case specific determination would represent the Government's position in any subsequent Federal action or litigation regarding the case. The EPA concluded that the 200-acre site is clearly typical of a floodplain forest and not a "wetland per se."

Following the completion of the Corps' jurisdictional determination process, the City presented its redesigned plans for the golf course to the Corps, and applied for a permit on February 8, 1995. A public notice regarding receipt of the application and a request for public comments was issued by the Corps on March 27, 1995. Comments were received from the EPA and FWS, in addition to several citizens. The EPA raised concerns about the impacts to the habitat of neotropical migratory birds, secondary and indirect impacts to the wetland areas, and the investigation of less environmentally damaging practicable alternatives. The EPA also recommended that the Corps further examine the data used in delineation because of concerns raised by the FWS. Because of its concerns and its conclusion that impacts to wetlands would be considerable, the EPA recommended that the permit not be issued as proposed.

The FWS also responded to the Public Notice, and also recommended that the permit not be issued as proposed. The FWS voiced concerns similar to those of the EPA, including degradation of wetlands and bottomland hardwood forest without mitigation, potential impacts on native wildlife species such as neotropical migratory birds, failure to consider practicable alternatives, in addition to...