Gouger v. US Army Corps of Engineers
779 F. Supp. 2d 588
S.D. Tex.2011Background
- Gouger et al. sue the U.S. Army Corps of Engineers challenging a 2009 permit modification SWG-2007-00218 related to a waterfront development on property along the Gulf Intracoastal Waterway in Port O'Connor, Texas.
- The 2003 permit (22722) approved a marine docking facility and bulkhead, with wetlands filling and mitigation; the 2009 modification changed the project to residential waterfront lots along the GIWW.
- Plaintiffs alleged the Corps failed to comply with the Clean Water Act §404(b)(1) guidelines, NEPA, and related public-interest requirements by not adequately considering alternatives and cumulative impacts.
- The wetlands were already filled and mitigation completed under the original permit; the modification would allow construction of residential housing on the same site.
- Plaintiffs asserted standing based on environmental, aesthetic, and recreational injuries to their properties and surroundings from the modification and its potential effects.
- The district court granted summary judgment for defendants and denied plaintiffs’ summary judgment, holding the Corps’ actions were not arbitrary, capricious, or unlawful under APA, CWA, and NEPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do plaintiffs have standing to challenge the 2009 permit modification? | Gouger et al. have injury in fact from diminished environmental and recreational values near their homes. | Injury traces to the original permit; modification is moot for standing purposes and plaintiffs cannot show redressability. | Plaintiffs have standing to challenge the modification. |
| Did the Corps' decision to issue the modification violate the APA (arbitrary and capricious standard)? | Agency relied on an improper project purpose and inadequate alternatives and cumulative impacts analysis. | Agency acted within its statutory and regulatory framework, with a rational connection between facts and decision. | No arbitrary and capricious action; summary judgment for defendants granted. |
| Did the Corps comply with the Section 404(b)(1) guidelines in evaluating the modification? | Corps erred by defining project purpose too narrowly and failing to consider practicable alternatives with less adverse impact. | Project purpose definition and alternatives analysis complied with 40 C.F.R. § 230.10; several alternatives were appropriately considered and rejected for valid reasons. | Corps complied with the 404(b)(1) guidelines and did not err. |
| Was the project purpose definition (overall purpose) too narrow or created a loophole allowing non-water-dependent development near the GIWW? | Overall purpose overly narrow to exclude feasible alternatives; creates regulatory loophole. | The overall purpose was reasonable, consistent with SOPs, and allowed consideration of applicant's needs and site characteristics. | Overall project purpose not overly narrow; no unlawful loophole created. |
| Was the NEPA analysis for cumulative impacts and alternatives adequate? | NEPA analysis did not adequately consider cumulative impacts or hard-look alternatives. | EA/SOF properly discussed alternatives and cumulative impacts; no requirement for an EIS; findings supported by record. | NEPA analysis adequate; no violation. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing elements and injury in fact requirements)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), 528 U.S. 167 (2000) (injury in fact—recreational/aesthetic interests)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action and redressability concepts)
- Hall v. U.S. Dep't of Labor, 562 F.3d 712 (5th Cir. 2009) (arbitrary and capricious review requires rational connection to record)
- Massachusetts v. EPA, 549 U.S. 497 (2007) (standing and procedural adequacy in regulatory challenges)
- Sierra Club v. Van Antwerp, 526 F.3d 1353 (11th Cir. 2008) (presumptions and practicable alternatives under 40 C.F.R. § 230.10(a)(3))
- City of Shoreacres v. Waterworth, 332 F. Supp. 2d 992 (S.D. Tex. 2004) (404(b)(1) guidelines and practicable alternatives)
- Grosskruger v. U.S. Army Corps of Eng'rs, 587 F. Supp. 2d 1236 (M.D. Fla. 2008) (project purpose and alternatives analysis)
- National Wildlife Federation v. Whistler, 27 F.3d 1341 (8th Cir. 1994) (cumulative destruction avoided by reasonable alternatives)