Walsh v. US Army Corps of Engineers

• Decision Date: 09 July 1990
• Docket Number: No. SA 90 CA 146.,SA 90 CA 146.
• Citation: 757 F. Supp. 781
• Parties: Bessie Frances WALSH, et al., Plaintiffs, v. The UNITED STATES ARMY CORPS OF ENGINEERS; Robert Page, in his Capacity as Assistant Secretary of the Army, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

757 F. Supp. 781

Bessie Frances WALSH, et al., Plaintiffs, v. The UNITED STATES ARMY CORPS OF ENGINEERS; Robert Page, in his Capacity as Assistant Secretary of the Army, et al., Defendants.

No. SA 90 CA 146.

United States District Court, W.D. Texas, San Antonio Division.

July 9, 1990.

COPYRIGHT MATERIAL OMITTED

Lloyd Garza, San Antonio, Tex., for City of San Antonio.

John W. Davidson, Russell S. Johnson, and Rand J. Riklin, San Antonio, Tex., for defendant, City of San Antonio Acting by and Through its Water Works Bd. of Trustees.

Charles R. Meyer, Atty., Environmental Defense Section, Gary B. Randall and Kenton W. Fulton, Gen. Litigation Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for defendant U.S. Army Corps of Engineers.

MEMORANDUM OPINION

GARZA, District Judge.

By separate Order dated May 10, 1990, this Court previously denied Plaintiffs' Motion for Preliminary Injunction for failing to meet their burden of persuasion as to three prerequisites for issuance of a preliminary injunction. This Memorandum Opinion addresses the Court's reasons for such ruling.

I.

Plaintiffs are owners of certain real property along the Medina River in Bexar County, Texas, which has been in Plaintiffs' family for over one hundred years. The land owned by Plaintiffs Bessie Frances Walsh, Audrey Jacke Hendrix Walsh, Curt Mahla, and Frances Walsh Gembler (the "Walsh Properties") has been known historically as the Perez Ranch. Plaintiff Margaret Clara Watson Condra owns an additional 250 acres (the "Condra Property") along the Medina River. The Walsh Properties and the Condra Property are situated on the location where the City of San Antonio proposes to build Applewhite Dam and Reservoir (the "Applewhite Project"). The city must acquire these properties, among others, if it is to proceed with the construction of Applewhite.

On January 23, 1990, the Walsh Plaintiffs received notice from Defendant, City of San Antonio, through the San Antonio Development Agency, that the city was prepared to initiate eminent domain proceedings against the Plaintiffs' properties. Plaintiffs did not agree to the city's offer to purchase the property. Such notice was received by Plaintiffs after the United States Army Corps of Engineers issued the San Antonio City Water Board a permit (permit number SWF-83-BEXAR-553) authorizing construction of Applewhite Dam and Reservoir on the Medina River. Construction would entail the inundation and destruction of portions of Plaintiffs' property.

By their Motion for Preliminary Injunction, Plaintiffs seek to enjoin the City of San Antonio City Water Board from initiating eminent domain proceedings against any portion of Plaintiffs' properties. Plaintiffs further seek to enjoin any activity taken in furtherance of permit No. SWF-83-BEXAR-553. Plaintiffs base their motion on the grounds that the permit was issued in violation of the Rivers and Harbors Appropriation Act of 1899, as amended, 33 U.S.C. § 401 et seq.; the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. § 470 et seq.; the National Environmental Policy Act of 1969 (NEPA), as amended, 42 U.S.C. § 4321 et.seq.; and sections 301 and 404 of the Clean Water Act, 33 U.S.C. § 1344. Because of the immediate possibility of eminent domain proceedings, and because construction of Applewhite is likely to commence soon thereafter, Plaintiffs brought their request for injunctive relief pursuant to FED.R.CIV.P. 65 to preserve the status quo pending adjudication of this action.

From the Defendant City's perspective the Applewhite Project is also of great importance, but for entirely different reasons. San Antonio, Texas is the largest city in the United States that depends entirely on ground water for its water supply. Its current source of water is the Edwards Aquifer. According to the Texas Water Commission, the dependable yield of the aquifer is 425,000 acre-feet per year. In 1982, the latest year for which data is available, withdrawals from the Edwards Aquifer amounted to 453,000 acre-feet. In addition, population projections for San Antonio and Bexar County show a more than fifty percent increase of the metropolitan area by the year 2020. Based on numerous regional studies, San Antonio concluded it needed to develop new water supplies to meet projected needs by 2020. The City of San Antonio Water Board proposed to build the Applewhite Project across the Medina River, in Bexar County, Texas to augment the city's water supply.

II.

For this Court to grant Plaintiffs' motion, Plaintiffs must meet all four pre-requisites for preliminary injunction relief:

1. A substantial likelihood that Plaintiffs will prevail on the merits;

2. The substantial threat that Plaintiffs will suffer irreparable injury if the injunction is not granted;

3. The threatened injury to Plaintiffs outweighs the threatened harm the injunction may do to the Defendant; and

4. The granting of the preliminary injunction will not disserve the public interest. Libertarian Party of Texas v. Fainter, 741 F.2d 728, 729 (5th Cir.1984). Plaintiffs bear the burden of persuasion on all four factors. Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 435 (5th Cir.1981).

Plaintiffs seek review of the permit pursuant to the provisions of the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 701-706. Plaintiffs' challenges under the CWA permitting statutes is governed by the "arbitrary and capricious" standard set forth in 5 U.S.C. § 706(2)(A). This standard of review is highly deferential. A final agency decision is entitled to a presumption of regularity. Louisiana Envtl. Soc'y, Inc. v. Dole, 707 F.2d 116, 118-19 (5th Cir.1983). Under subsection 706(2)(A), the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. In reviewing action under the arbitrary and capricious standard, the court must not substitute its judgment for that of the agency. Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir. 1983); accord, (accord to Avoyelles) City of Houston v. FAA, 679 F.2d 1184, 1190 (5th Cir.1982).

Plaintiffs' NHPA and NEPA claims are not free-standing claims and, instead, challenge the permit on the grounds that the Corps did not comply with other relevant statutes. 5 U.S.C. § 706(2)(D); see Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown, 875 F.2d 453, 458 (5th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 720, 107 L.Ed.2d 739 (1990). The NHPA and NEPA create only procedural, not substantive rights. See, e.g., United States v. 162.20 Acres of Land, Situated in Clay County, 733 F.2d 377, 380 (5th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 920 (1985) (NHPA); Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978) (NEPA). The role of the court in reviewing an environmental impact statement prepared under NEPA is to determine whether the agency has adequately considered and disclosed the environmental consequences of its proposed action. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252-53, 76 L.Ed.2d 437 (1933).

Under the NHPA, the role of the court is to determine whether the agency has followed the procedures for consultation with the Advisory Council on Historic Preservation. See 162.20 Acres, 733 F.2d at 380; Connecticut Trust for Historic Preservation v. ICC, 841 F.2d 479, 484 (2d Cir.1988).

The judicial inquiry into the merits of plaintiffs' NEPA claim must apply a pragmatic standard which requires good faith objectivity but avoids "fly specking." Isle of Hope Historical Association, Inc. v. U.S. Army Corps of Engineers, 646 F.2d 215, 220 (5th Cir.1981). NEPA itself does not mandate particular results, but simply prescribes the necessary process. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). The Court's rule in reviewing the adequacy of an EIS is strictly limited to determining whether plaintiffs have established by a preponderance of the evidence that the EIS is inadequate. Isle of Hope, 646 F.2d at 220. In determining whether the EIS contains both sufficient detail and sufficient explanation of alternatives and evidences an objective, "hard look" at the environmental consequences, the court judges the agency's compliance against a rule of reason. Texas Committee on Natural Resources v. Marsh, 736 F.2d 262, 266 (5th Cir.1984).

III.

At the hearing on this preliminary injunction, Plaintiffs abandoned their argument that the permit was issued in violation of the Rivers and Harbors Appropriation Act of 1899, as amended, 33 U.S.C. § 401 et seq. However, Plaintiffs did urge the following three arguments. First, that the final Environmental Impact Statement prepared by Defendant United States Army Corps of Engineers violates the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321, and the implementing regulations 40 C.F.R. § 1508.7, by failing to analyze and disclose the cumulative impacts of the Applewhite Reservoir project with other reasonably foreseeable future actions on the San Antonio-Guadalupe River Watershed in San Antonio Bay. Secondly, that Defendant United States Army Corps of Engineers violated section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470, by issuing the permit for the Applewhite Project before completing the procedural requirements. Protection of Historic and Cultural Properties, 36 C.F.R. § 800.1 (1989). Specifically no programmatic agreement was signed prior to the issuance of permit SWF-83-BEXAR-553. Thirdly, Plaintiffs contend that Defendant United States Army Corps of Engineers has violated § 404 of...