An Environmental Perspective on Texas Coastal Issues
by Jim Blackburn, Mary Carter and Francis Chin
Compared to the coasts of other states, the Texas Coast is a relatively unregulated part of the United States. The primary regulatory presence on the Texas coast is the U.S. Army Corps of Engineers. The secondary regulatory presence is the Texas Commission on Environmental Quality. The General Land Office of the State of Texas has control over the bottoms of the bays and over the barrier beaches outward three leagues. Although Texas has been admitted into the federal Coastal Zone Management Program, there is no effective coastal management program at this time. Counties in Texas lack general regulatory authority and cities control relatively little of the Texas coast. Welcome to the Texas frontier.
This paper focuses on the role of the U.S. Army Corps of Engineers, sometimes critically. However, it is important to note that Corps is the only regulatory body for many of the Texas Coastal Issues. There is no Texas wetland permit. There is no Texas dredge and fill requirement. There is no coastal development permit from the State. That means that all of the responsibility for regulating Texas coastal development falls onto the Corps. At the outset, I would like to acknowledge this role of the Corps and thank the Corps for its work on the coast. Without the Corps, many of the projects discussed in this paper would simply not be regulated.
THE ARMY CORPS OF ENGINEERS AND BAYPORT
The U.S. Army Corps of Engineers has regulatory authority under both Section 10 of the River and Harbor Act of 1899 and Section 404 of the Clean Water Act. The Corps is also a primary sponsor of civil works projects. Some would say that there is a mild case of schizophrenia in most Corps Districts as they attempt to manage the role of both regulator and project proponent. There are vast differences among Corps of Engineers Districts around the United States. Some are on the cutting edge of regulation. Others are not. In many respects, the Corps Districts reflect the politics of the state in which they are located. Therefore, it is not surprising that the Galveston District is one of the more conservative regulatory districts in the United States.
For the last several years, there has been a major environmental fight on Galveston Bay. This fight epitomizes the current status of regulation on the Texas Coast. The Port of Houston Authority wished to construct a container port on the Galveston Bay system at a place called Bayport.
Bayport is an industrial development that was created by Friendswood Development Corporation in the 1960s. The Bayport industrial development area is primarily west of State Highway 146 that runs adjacent to Galveston Bay. There is a deepwater channel that was constructed into the mainland between the cities of Shoreacres and LaPorte on the north and Pasadena and Seabrook on the south. In order to construct this deepwater channel, SH 146 had to be relocated. The adjacent towns were promised by Friendswood that there would be no industrial development in the area east of 146. However, they did not get this promise in writing. They should have.
Part of the area used for the Bayport site by the Port of Houston was conveyed to the Port as part of the initial channel construction. The original plan contemplated a bulk loading facility to go with the bulk liquids terminals that serviced the industries built to the west. Later, in the 1990s, the Port of Houston purchased another part of the Bayport site for spoil disposal. Ultimately, all of this property was converted into a 1000 plus acre site for a seven-berth container facility and an associated rail yard and container handling area. Additionally, the Port has proposed to construct several berths for cruise ships.
This project was bitterly contested for several years. Permits were required from the Corps under Section 10 of the River and Harbor Act of 1899 for dock construction and channel modifications. See 33 U.S.C. § 403. Additionally, over 146 acres of wetlands existed on the 1,000 acre site and some of these were considered jurisdictional by the Corps which required Section 404 permits prior to filling. Because these federal permits were considered to be major federal actions, an environmental impact statement was required under the National Environmental Policy Act.
The opponents to Bayport were active participants in the EIS process, developing documentation regarding the impacts generated by seven container ships, six cruise ships, 5000 eighteen wheel trucks in and out each day, dozens of diesel-powered container movers and four 8000 foot trains per day. Data developed by the opponents indicated that noise standards and air quality standards for PM2.5 would be violated by the project and that adjacent neighborhoods where over 5000 people lived would be heavily impacted. The EIS prepared by the Corps generally agreed with these findings, yet the Corps issued the Bayport permit. See 42 U.S.C. §§ 4331 et seq.
An environmental group, the Galveston Bay Conservation and Preservation Association (GBCPA) along with the cities of Shoreacres, Seabrook, El Lago and Taylor Lake Village and several other environmental groups filed suit in federal district court in Houston. Here, Judge Vanessa Gilmore ruled in favor of the Corps and the Port under both NEPA and Section 404 of the Clean Water Act. See City of Shoreacres v. Waterworth, 332 F. Supp.2d 992 (S.D. Tex. 2004). The case is now on appeal to the 5th Circuit and is scheduled for oral argument on June 8, 2005.
This 5th Circuit opinion on Bayport has the potential to be an important one. The issues in this appeal are difficult and potentially of national importance. One key issue is the scope of jurisdictional wetlands that was determined by the Galveston District of the Corps. At issue here is whether or not the freshwater wetlands of the Texas coast will receive the same degree of protection as do similar wetlands in other areas of the United States. The SWANCC decision has been interpreted by the Galveston District to restrict the scope of jurisdiction such that wetlands connected to navigable waters by overland flow are not jurisdictional. See Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC), 532 U.S. 159 (2001). This interpretation, upheld by Judge Gilmore in the Shoreacres decision, is contrary to rulings by other circuit courts of appeal, including the 4th, 6th and 7th. See generally, United States v. Deaton, 332 F.3d 698 (4th Cir. 2003), cert. denied, Deaton v. United States, 541 U.S. 972 (2004); Treacy v. NewdunnAssociates, 344 F.3d 407 (4th Cir. 2003) cert. denied, Newdunn Associates v. Army Corps of Engineers, 541 U.S. 972 (2004); United States v Rapanos, 339 F.3d 447 (6th Cir. 2003), cert. denied, Rapanos v. United States, 541 U.S. 972 (2004), reh’g denied, 124 S. Ct. 2407 (2004); United States v. Rueth Dev. Co., 335 F.3d 598 (7th Cir. 2003), cert. denied, Rueth Dev. Co. v. United States, 540 U.S. 1050 (2003).
This issue is being watched by wetlands experts around the United States. It is possible that a ruling in favor of the Galveston District’s wetland interpretation in the Bayport case could place the 5th Circuit in conflict with the 4th, 6th and 7th, potentially setting up a ruling by the U.S. Supreme Court to resolve the conflict between the circuits. This possibility has made many wetland regulation advocates nervous, to say the least.
A related issue is whether or not the jurisdictional wetland issue has been “mooted” by the large mitigation tracts provided by the Port. The argument was made in District Court and accepted by Judge Gilmore that the amount of jurisdictional wetlands really is unimportant because the Port provided mitigation for jurisdictional and non-jurisdictional wetlands. Judge Gilmore cited no case law precedent for this ruling and this issue has never been directly addressed by a United States Circuit Court of Appeals. If reached, it will be a case of first impression before the 5th Circuit.
The Shoreacres appeal also involves a judicial inquiry into the Corps of Engineers rules for issuing and denying section 404 permits. See 40 C.F.R. § 230.10(a). GBCPA and others will argue that in addition to the wetland issue, problems exist with the analysis of alternatives under the Section 404 permit program completed by the Corps. The Corps and Judge Gilmore determined that Shoal Point was not a practicable alternative because the Port could not spend general obligation bond money for a site in Galveston County. However, the Port has purchased land on Pelican Island in Galveston County with other types of revenue (e.g., income from port operations). The issue here is whether or not an applicant can restrict the scope of the practicable alternatives analysis by dictating a particular funding concept.
A related issue regarding practicable alternatives is whether or not the issuance of a permit to Shoal Point for a container port was adequately considered under either NEPA or the 404 process. Shoal Point, a container port located at Texas City that has the same capacity as the proposed Bayport facility, was permitted by the Corps prior to the Corps deciding to issue the permit for Bayport. In the Bayport EIS, the Galveston District never analyzed issuing permits for two container ports in the Galveston Bay system but only one, either at Bayport or Shoal Point. Because Shoal Point was permitted before the Bayport permit was issued, the argument will be made to the 5th Circuit that the Bayport permit must be denied under the provisions of 40 C.F.R. § 230.10(a) which requires that a permit must be denied if an environmentally less damaging practicable alternative exists. The Galveston District determined in the Bayport ROD that Shoal Point was the least damaging alternative but that it was not a practicable alternative for the Port of Houston. However, if the goal is to develop a container port for Galveston Bay, then the name of the applicant is unimportant. Instead, the least damaging alternative must be (and was) permitted and all others are to be denied.
Another issue before the Court is whether or not the Corps had to analyze the impact of a 50 foot deep channel being constructed into Bayport. The docks at Bayport are to be constructed to a depth of 56 feet. Assuming that the docks are overdredged by five feet, the depth is still deeper than the current 45 foot deep Houston Ship Channel. Plaintiffs have argued from the beginning that the Port intends to request a deeper ship channel to Bayport because container ships are requiring deeper and deeper draft. We will argue to the 5th Circuit that the time to analyze the impact of this deeper channel into Bayport is before the Port spends a billion dollars rather than after that investment is made. Once made, the investment is likely to dictate a deeper channel regardless of the harm to Galveston Bay.
These issues are difficult. They go to the core of the Section 404 regulatory responsibilities of the Corps of Engineers on the Texas Coast as well as the rest of the United States. Stay tuned for the 5th Circuit decision.
TEXAS COASTAL MANAGEMENT AND BAYPORT
These same four cities and several environmental groups led by GBCPA also challenged the state proceedings regarding the Bayport Section 404 permit in addition to the federal court challenge. Under the Coastal Management Program of the State of Texas, the Section 401 water quality certification process is used as the primary mechanism of the Texas Coastal Management Program to regulate wetlands within the Texas Coastal Zone. See Tex. Nat. Res. Code § 33. This indirect approach is used because no program exists under Texas law to directly regulate the filling of wetlands.
The Section 401 certification process is under the jurisdiction of the Texas Commission on Environmental Quality (TCEQ). In state proceedings before the TCEQ, GBCPA and others questioned whether or not the Section 401 certification process correctly applied the criteria under the Texas Coastal Management Program that compels each state agency to make its own determination of compliance with the overall rules of the TCMP (as opposed to an oversight agency making such a determination).
As part of the challenge to the TCEQ’s application of the Texas coastal rules, GBPCA and others attempted to appeal to the Texas Coastal Coordination Council (CCC), the state agency responsible for the Texas coastal program. In order to have an appeal heard by the CCC, three members of the CCC must vote to hear the issue. Before such a vote could be taken in the case of the Bayport appeal, Texas Land Commissioner Jerry Patterson ruled that no “unresolved” issues existed with regard to the Bayport 401 certification and ruled that an appeal to the CCC was not allowed under the coastal rules.
GBCPA, four cities and several other environmental groups filed suit against the TCEQ in state district court in Austin. In this case, the merits of the case were not heard because Judge Meurer granted a plea to the jurisdiction, effectively dismissing the lawsuit. The decision granting the Plea to the Jurisdiction is now on appeal the 3rd Court of Appeals in Austin which will hear oral argument on April 14, 2005. At this point in time, the issues before the 3rd Court of Appeals are procedural. If the appellants win, they will be allowed to argue the merits of the state claim under the Texas Coastal Program.
While the Bayport state court litigation is more procedural than the federal court litigation, it is no less important. The Texas Coastal Management Program does not exist in any real sense. There is no oversight and application of coastal management principles. There is no coastal protection being provided by the program. It is, at best, misleading to state that Texas has a coastal management program. At some point, we hope to get a hearing on the Texas coastal program and its application of its rules in state court.
FRESHWATER INFLOW
From a coast-wide perspective, the most important issue is freshwater inflow. Freshwater inflow offsets salinity in our estuaries and provides the carbon, nutrients and silica necessary to support the phytoplankton that represent the primary productivity of our coastal bays. Freshwater inflow varies considerably from the Sabine where over 14 million acre feet of water enter Sabine Lake each year to the Matagorda and San Antonio Bay systems that average around 2 million acre feet per year. Copano and Aransas Bays are nourished by groundwater seeps and springs into the Mission River. Nueces Bay used to be an excellent estuary but is now suffering from the lack of freshwater inflow, with productivity decreased substantially by extensive water development on the Nueces and Frio Rivers. And of course, the Rio Grande went dry and the mouth silted up at the beginning of the 21st Century.
The fate of the bays and estuaries of the Texas coast is currently uncertain relative to freshwater inflow. Groundwater development projects proposed for Refugio and Bee Counties threaten the springs and seeps that provide the 20,000 acre foot base flow on the Mission River. Texas groundwater law is still controlled by the 1904 East case (Houston & T.C. Ry Co. v. East, 81 S.W. 279 (Tex. 1904).) that held because analysis of groundwater involved the occult, regulation was ill-advised. It is hard to believe that this is still the law in Texas but it is. The only exception is that a groundwater conservation district may be formed and regulate groundwater. Refugio County voted to establish such a district. If the Mission River and Copano Bay oysters survive into the future, it will be because of the Refugio County Groundwater Conservation District passed rules restricting groundwater usage to an extent that the flow in the springs and seeps was maintained. At this time, specific rules are being discussed but have not been enacted pending results of groundwater studies. Stay tuned.
The fate of the San Antonio Bay system will be determined by the fate of the Lower Guadalupe Water Supply Project (LGWSP), a project to divert upwards of 90,000 acre feet of water per year from the Guadalupe River to San Antonio. A permit for 289,000 acre feet of new water rights was filed by the Guadalupe-Blanco River Authority, the San Antonio River Authority and the San Antonio Water System, but that application has been suspended as of the spring, 2005. When surface water becomes scarce during times of drought, the LGWSP proposes to take groundwater from Refugio, Goliad and Victoria Counties to make up for the shortfall in surface water.
As proposed in the spring, 2005, the LGWSP will take water from the Guadalupe River basin and divert and transport it to the San Antonio River Basin, triggering the Interbasin Transfer provisions of Section 11.085 of the Texas Water Code. Among other things, Section 11.085 requires a separate IBT transfer permit and makes all surface water transferred under the IBT permit junior to all other water rights in the basin of origin. As such, the current IBT provision effectively renders any interbasin transfer of limited value to the buyer because the junior rights are not dependable during times of drought or even low flows. Most of the Texas rivers are over-allocated. If senior water rights lose their seniority in the IBT process, then they are virtually worthless.
Assuming that the project sponsors solve the IBT problem, additional problems exist in the diversion of freshwater away from San Antonio Bay. Any diversion will reduce the freshwater inflow to San Antonio Bay. San Antonio Bay is home to the federally endangered whooping crane and portions of the bay are designated as critical habitat for the crane. The blue crab is the primary food for whooping cranes with each crane consuming up to 80 crabs per day. In turn, blue crabs are estuarine species whose life cycle is related to the salinity regimen of our coastal bays. If blue crabs and the cranes are negatively impact by the LGWSP, the project is unlikely to occur.
In this regard, federal permitting of the diversion structure is very important. At the least, some type of Corps of Engineers permit is likely necessary for any of these diversion projects. Additionally, a federally-constructed, salt-water barrier exists on the Guadalupe River that figures prominently in the operation of the proposed diversion system. Will this federal involvement be sufficient to trigger Section 7 of the Endangered Species Act or will the fate of the project hinge on an interpretation of Section 9? Stay tuned.
On the Matagorda Bay system, a similar project exists wherein the Lower Colorado River Authority proposes to divert water from the Colorado River and send it to San Antonio. As with the LGWSP, there are plans to construct off channel storage reservoirs to reduce the impact on the bays and estuaries. Unlike the LGWSP, however, the LCRA project is moving forward under a special Texas statute that sets out the studies to be done and stakeholder involvement processes. Also unlike the LGWSP, no endangered species are directly affected by the proposed diversion.
On Galveston Bay, several water rights permit applications have been filed in an effort to set aside some of the last remaining un-appropriated water from the San Jacinto River system. In particular, the City of Houston has applied to appropriate return flows from various sewage treatment plants and divert it for municipal and industrial uses. One permit application requests over 580,000 acre feet of water. Others request smaller amounts.
This permit application by the City of Houston is particularly troubling because of its potential impact on the salinity and environmental health of Galveston Bay. Back in the late 1980s, environmentalists, the Texas Parks and Wildlife Commission, the Corps and the Port of Houston were hotly debating the impacts of the widening and deepening of the Houston Ship Channel on Galveston Bay. To resolve this dispute, the Waterways Experiment Station (WES) from Vicksburg, Mississippi, undertook computer modeling that demonstrated that the additional salinity brought in by a 45 by 530 foot channel would be offset by the return flows from sewage treatment plants on the San Jacinto River. On the basis of this modeling, a compromise was reached that allowed the 45 by 530 foot project to proceed. If this permit application by the City of Houston is granted, the return flows that were demonstrated to offset the increased salinity would be lost and the basis of this earlier compromise undermined. At this time, environmentalists and the City of Houston are trying to negotiate a settlement to this dispute.
The existence of these and other freshwater inflow disputes have not escaped the attention of the Texas Legislature. To address these issues, a special Environmental Flows Committee was formed, led by Sen. Ken Armbrister of Victoria and Rep. Robert Puente of San Antonio. Together, Armbrister and Puente have authored a report that recommends a special process be followed to determine the freshwater inflow needs of the various bays. This process recognizes that there are disputes about freshwater inflow methodologies and sets up both a technical panel and a stakeholder panel to attempt to determine the amount of freshwater inflow needed for the various bays and estuaries. This process may be included within an omnibus water bill but the fate of this bill is not known at the time of the writing of this article.
If this provision were passed, a special freshwater inflow process would be established for Galveston Bay, Sabine Lake and Matagorda Bay beginning in 2005. San Antonio Bay – arguably the most threatened bay – would not be studied until later in the process. Therefore, it seems clear that a major legal battle is likely to ensue over impacts of reduced freshwater inflows on San Antonio Bay. This likelihood is only enhanced by a number of provisions introduced by Rep. Puente to eliminate the IBT requirements for any transfer/sale to San Antonio from the Guadalupe River. This battle over San Antonio Bay could be substantial, bitter and lengthy.
In conclusion, the fate of our coastal bays is uncertain. In this regard, we should all pause and think about the Rio Grande for a moment. In our lifetime, ill-advised water development and neglect have led to the death of a river. The flow was reduced to a trickle and the mouth of the river silted in, cut off from the Gulf of Mexico into which it had flowed over geologic time. It happened on our watch. It happened on your watch. It can and will happen in other places if we don’t pay attention and act. Stay tuned.
GALVESTON ISLAND CUMULATIVE IMPACTS
On December 14, 2004, Judge Samuel B. Kent of the Galveston Division of the Southern District of Texas issued his ruling in Lafitte’s Cove (Lafitte's Cove at Pirates' Beach Nature Society v. U.S. Army Corps of Engineers, WL 3186592, 59 ERC 1641, S.D. Tex. Dec. 14, 2004). In this case, Judge Kent ruled that the Corps must consider the cumulative impacts of its permit decision on Galveston Island as well as the impact of an individual permit on spoil disposal practices on the island. Judge Kent’s ruling definitely has implications for island development on North Padre and Mustang as well as South Padre. Additionally, the various LNG proposals that are currently pending before FERC could also be affected.
The facts in this case are straightforward. A developer had purchased all of the assets of Mitchell Development, including an area that had been designated as a spoil disposal site for future maintenance dredging for a development called Lafittes Cove that had been previously permitted by the Corps in the 1980s. The Nature Center at Lafittes Cove was formed by the Lafittes Cove Declaration of Covenants and was given responsibility to undertake maintenance dredging of the canals at Lafittes Cove. In this regard, a spoil disposal site had been designated in the original Lafittes Cove Corps permit for use for future maintenance dredge spoil disposal. However, once the land sale occurred, the new owner believed that he was not obligated to provide spoil disposal for Lafittes Cove and proceeded to submit a permit application to the Corps to develop the spoil disposal site for water-oriented housing.
In evaluating the issuance of the Section 10 and 404 permits under NEPA, the Galveston District did not evaluate the effects of the loss of the spoil disposal site from an environmental perspective and Judge Kent ruled that this failure violated NEPA. However, Judge Kent went on to rule that the Corps had also failed to analyze the cumulative effects of the issuance of this development permit on the environment of Galveston Island. Cumulative impacts are among the most difficult impacts to evaluate, consisting of the incremental impacts of the proposed action in concert with past, present and reasonably foreseeable future actions. See 40 C.F.R. § 1508.7. Judge Kent applied the precedent of the 5th Circuits’ Fritiofson case (Fritiofson v. Alexander, 772 F.2d 1125 (5th Cir. 1985).) that also involved (ironically) the development that is today known as Lafittes Cove.
This requirement to analyze cumulative impacts is applicable to any number of areas on the Texas coast where several federal permit actions are pending at the same time. The precedent is easier to see in an island setting, but it is by no means restricted to islands. The Lafittes Cove case has been appealed to the 5th Circuit by the United States government. Stay tuned for new developments.
WIND POWER
Wind power is an alternative source of energy and various sites along the Texas Gulf Coast are being considered as locations for wind farms. The potential problems between birds and wind turbines are well known and well considered for many parts of the United States and the world. However, there is at least one issue regarding birds and wind farms that is different from certain other areas of the United States and that concerns the migration of neo-tropical songbirds through the Texas coast each spring.
During the months of April and May, large numbers of neo-tropical songbirds migrate from Mexico and Central America northward. Many of these birds gather in the Yucatan Peninsula of Mexico and fly across the open waters of the Gulf of Mexico to the Texas Coast. This journey can be relatively easy when aided by a tail wind. However, these migrants often encounter spring cold fronts and severe weather as they make this crossing. Many of these birds may not survive the crossing, and many that do survive have depleted virtually all of their energy reserves. On occasions, the birds simply “fall out” on the shoreline. On others, they continue until they reach a reserve or forested sanctuary where they can restock their energy.
The point here is that these migrating, tired birds may not be able to navigate through a wind farm without problems. These are not strong birds. These are not the birds that have been studied and evaluated in previous tests, at least from what I have been able to understand to date. This is an issue that should be carefully evaluated in any wind farm proposal on the Texas coast.
CONCLUSION
In conclusion, were it not for the federal government, there would be very little coastal protection in Texas. Thank goodness for the Feds. If you are interested in reading further about my views of the Texas Coast, I invite you to buy a copy of my book titled The Book of Texas Bays. It is available from Texas A&M Press, many coastal bookstores and Amazon.com, among others.
