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HomeMy WebLinkAbout06-30-2003 Bayport Expansion Review CommitteeMeetingC] MINUTES OF THE BAYPORT EXPANSION REVIEW COMMITTEE JUNE 17, 2003 1. CALL TO ORDER The meeting was called to order by Chairman Engelken at 6:00 p.m. Members of the Committee Present: Chairperson Chuck Engelken, Councilmembers Mike Mosteit and Peter Griffiths Members Absent: None Members of City Executive Staff and City Employees Present: City Secretary Martha Gillett, Assistant City Secretary Sharon Harris, and Engineering Technician Robert O'Sullivan 2. CONSIDER APPROVAL OF MINUTES FROM THE MAY 29, 2003 BAYPORT EXPANSION REVIEW COMMITTEE MEETING. Motion was made by Councilmember Engelken to approve the minutes of the Bayport Expansion Review Committee Meetin og_n May 29, 2003 as uresented. Second by Councilmember Mosteit. The motion carried. 3. PETITIONS, REMONSTRANCES, COMMUNICATIONS, AND CITIZENS AND TAXPAYERS WISHING T ADDRESS THE PORT OF HOUSTON EXPANSION REVIEW COMMITTEE There were not any petitions, remonstrances, communications, or citizens wishing to address Council. Let the record show there were no citizens present. 4. DISCUSS AND REVIEW FINAL ENVIItONMENTAL IMPACT STUDY FOR THE PORT OF HOUSTON AUTHORITY'S PROPOSED BAYPORT SHIP CHANNEL CONTAINER/CRUISE TERMINAL The committee discussed the final document at length. It was the consensus of the committee that they want to be sure all the previous items of adverse affect, listed in the previous letter from Council, have been addressed in the final study. The committee agreed to do the following: Councilman Peter Griffiths and Assistant City Manager John Joerns will draft a letter for the next meeting, at that time they will decide if the committee wants to send an additional letter regarding the final report. n U • Page 2 of 2 The committee will confirm a meeting (see attached) tentatively scheduled at City of Taylor Lake Village being coordinated by Mayor Natalie O'Neill, if the meeting is held the committee recommends having representation from the City of La Porte. Representation will consist of committee members and any of City Council members that would like to attend. Councilman Michael Mosteit will confirm if Commissioner Sylvia Garcia will be in attendance at the meeting. A brief report will be provided at the June 23, 2003 Council Meeting and a full report will be at the July 14, 2003 Council Meeting. 5. AT 7:00 P.M. CHARLES JENKINS FROM THE PORT OF HOUSTON WILL DISCUSS THE PROJECT WIT THE COMMITTEE AND ANSWER QUESTIONS Project Manager Charlie Jenkins and Environmental Affairs Manager Laura Fiffick discussed the project with the committee. A handout was also provided to the committee (see attached). 6. NEW BUSINESS There was no new business discussed. 7. COMMITTEE COMMENTS The committee had no further comments. 8. ADJOURNMENT There being no further business to come before the Committee, this meeting was duly adjourned at 8:45 p.m. Respectfully submitted, ~~ Martha A. Gillett, TRMC City Secretary Passed and approved on this 30th day of June 2003. Chairman Chuck Engelken Jun~16 03 12:18p Cit~Taylor Lake Village • 500 Kirby Blvd., Taylor Lake Village, Texas 77586-5298 ' Ph: 281-326-2843 Fax:281-326-5456 28132 5456 m~C Q~ ~Cu 2'GG1-~, p. 1 ~ ~ ~~- b ~''~ I~~'7 ~~~ 1 `~ 2003 CITY SECRETARY'S To: Martha Gillette From: Natalie S. O'Neill, Mayor Fa~c 281-842-1839 Pages: 5 Ptwne: ~ Date: June 16, 2003 Re: ~ cc: ^ Urgent x Por Review ^ Please Comment ^ Please Reply ^ Please Recyele Ms. G1lette, Please place a copy of this cover and attached document In Chuck Engelken's mail box. Chuck- Per our discussion, attached is the 4 pages obtained through the FOIA request in 1998. We collected these pages while reviewing the Port of Houston Authority's documentation in their offices. This document was sent to Delay and John Davis. John wrote the~PHA and asked them to do a credible study. in 2002 the results of that study were released. That LAN study and the most recent study done by S&ME commissioned through Sylvia's office are available from either Sylvia or Nancy Edmonson. Thank you, Natalie 1~ Jun,16 03 12:18p Cit~Taylor Lake Village 28132456 p.2 SPILMAN ISLAND DEVELOPMENT Much of Spilman Island is built on old bay bottom. Except for the levees which are generally constructed of dried maintenance material and clay material from dredging new material, the area is soft material dredged from the Houston Ship Channel, in order to develop any portion of Spilman Island, the soft wet material deposited over the years Heads to have the water removed, thus allowing the material to consolidate and improve its strength characteris#ics. Consolidation and moisture removal could be achieved by pre-loading. A reasonable area for pre-loading would be approximately 5 acres in size. Approximately 20 feet of sand would be placed and wick drains installed to allow the water presently trapped in the dredge material to • escape as the sand consolidates the material. A S acre area woutd general be expected to consolidate to an acceptable level over a 1 to 1-1/2 year period. The sand would then be ''`moved to a second 5 acre area and the process repeated until whatever total area desired has been consolidated to a useable condition. Sand is the proper material to use to load the area because it is more economical to place and move and does not pose the problems encountered when woiicing with clay in wet conditions. Wortcing on 5 acre areas at 1-1/2 year intervals would yield 20 acres. total for potential development after approximately 6 years. Using 20 feet of sand over 5 acres, would require approximately 205,000 cubic yards of sand. Potential source of sand is dredging from bay area south of 13allester Street and pumping to Spilman Island. A soil boring program would need to be instituted to determine if a source of sand is available and define an area to be used as a source for the sand. Additionally, an extensive • Jun, 16 03 12:18p Cit~Taylor Lake Village 28132456 p•3 • • geotechnical investigation would need to be undertaken on Spilman Island to define present conditions of the material to be consolidated and establish design parameters for this type of project. This is a "thumbnail' sketch of what might be done. An actual development program for Spilman. Island would need to be pursued very cautiously because of the uncertain and complex gectechnical problems which would need to be addressed as wail as how to deal with the issue of diverting a portion of a major disposal area from use in the Houston Ship Channel maintenance dredging program. • Jun, 16 03 12:18p Ci~Taylor Lake Village 28132456 p.4 • COST STiMATE A. Initial Dredging to Supply Sand 1. Mob/Demob $200,000 2. Pipelines 100,000 S. Overburden Dredging 520,000 yd 3 x $3.75/yd 3 - $1,950,000 4. Sar:d Dredging 250,000 yd 3 x $3,75/yd 3 - 937.500 Sub-Total $3,187,500 20% Contingency 637.500 TOTAL $3,825,000 B. Wick Drain lnstaliation • Assume instal! on 7' x 7' grid over 5 acres 5x43,560 = 4,445 Drains 49 Installation depth assumed to be 40 ft. 4,445 x 40 x $0.50 = $ $8,900 20% Contingency 17.780 TOTAL $ 106,680 C. Move Sand to New 5 Acre Area 250,000 yd 3 x $8.50/yd 3 = $2,125,000 D. Cost for initial 5 Acres 1. Dredging $3,825,000 2. Wick Drains 106.680 $3,931 ,680 • Jun. 16 03 12:19p Ci~Taylor Lake Village 28132456 p.5 E. Second 5 Acre Area - 1. Move Sand $2,125,000 2. Wick Drains 106.680 - Sub-Total $2,231,680 20% Contingency _ 446.336 TOTAL - $2,678,016 Assume 3% Increase for each remaining - 5 Acre Area. F. Third 5 Acre Area $2,678,016 x 1.03 = $2,758.357 G. Fourth 5 Acre Area - $2,758,375 x 1.03 = $2,841,108 TOTAL EST. COST EQUALS SUM OF • ~ D, E, F AND G 12 209 161 CosVAcre $12.209,161 $610,458 20 A~SPILMlW.71B • oa' ~ST~IV °0~0 ~94o r:. ~qU ° 4' ,~ '~ O ~ ~_ O ~ .'~ a "~ S ~: e OG .~__... ~~o ~~oo TON , .~~ e BAYPORT CONTAINER & CRUISE TERMINAL DEVELOPMENT TIMELINE ~, 2005 Phase lA of Bayport is operational, including 1,660 feet of the ultimate 7,000 ft. whazf and approximately 65 acres of the ultimate 1,043 acre facility. Additional phases will be built incrementally over many years according to market demands. . April 2003 The Texas Commission on Environmental Quality (TCEQ) conducts a public meeting on the Port Authority's 401 water quality permit. Later this month, the Corps is expected to release its Final Environmental Impact Statement. The Corps' schedule calls for a record of decision on the permit for Bayport neaz the end of this month. The Port Authority anticipates a favorable decision. August 2002 The Port Authority's Bazbours Cut Container and Cruise Terminal and the Central Maintenance facility became the first Port facilities in the U.S. to develop and implement an Environmental Management System (EMS) that meets the rigorous standazds for ISO 14001 compliance. May 2002 Cruise Terminal design changed to reduce the number of berths to three from five to lessen the environmental and bay bottom impact necessary for the facility. Changed mitigation to address the verified wetland delineation at Bayport with a 3.6:1 ratio of new wetlands to impacted wetlands on the conservation easement. Increased the conservation easement size to 173 acres. The Port has proposed to create 66.8 acres of freshwater wetlands, enhance 12 acres of existing wetlands, preserve 23.7 acres of forested and shrub uplands and 71 acres of restored coastal prairie on the easement. March 2002 Written comment period on the DEIS closes. February 2002 The Port makes further minor changes to the master plan to improve stormwater drainage, location of the three-mile long, 130-foot wide, 20-foot tall sight and sound berm located on a 128-acre buffer zone, sound barriers on the north shore of the Bayport Channel, the use of high-tech spreader bars on the wharf cranes to reduce noise and add a new 75-foot set aside between the vegetated berm and Pine Gully for habitat purposes. December 2001 A public workshop followed by the official public hearing was held at the George R. Brown Convention Center. Three to four thousand attended the public hearing. The group was split between opposition and supporters. sayport Comainer & anise Ternunal page 1 of 9 May 2003 ~ i Nov -Dec 2001 Two Public Workshops were set up at the Pasadena Convention Center by the Corps to provide information to the public on Bayport Project and the DEIS. Just a few dozen attend. November 2001 The CAG released a study that showed the residential property values near the Port's Bazbours Cut Container facility increased at a faster rate than the average for Hams County. November 2001 Army Corps of Engineers released the Draft Environmental Impact Statement (DEIS). The Corps sets the original deadline for comments on February 11, 2002 -double the amount of time required by law for a comment period. The comment period was later extended further to March 2002 - a full 120-day comment period. October 2001 Using input from community, industry and maritime groups, the PHA submitted a revised permit application. The revised permit application to the Corps dedicates 12% of the property to buffer zones, provided a channel setback of 225 feet for navigational safety, provided tree planting for the north shore of Bayport, stipulated that some dredge material would be used to create approximately 200 acres of new mazsh in the Bay, mitigated wetland delineation by acquiring a 163-acre conservation easement with a 5:1 ratio of new wetlands to impacted wetlands on the easement, protect existing wetlands, forest and shrub upland on the easement, proposed capture of "first flush" stormwater to facilitate capture of total suspended solids, added a South Terminal Retention Pond, added isolated inlet treatment units to treat stormwater from azeas that have a higher likelihood of oil and grease, pledged the use of alternative fuels and equipment when available, added an on-site HA71yfAT team, fire department and police department, designed lighting systems that would m;n;m;~e glare, moved cruise ship traffic from Todville Road to a new four-lane public thoroughfare called Cruise Road that will be inside the berm, modified Todville/Cruise/Port Road intersections to prevent truck traffic from entering the community, pledged the facility will meet the Environmental Management System IS014001 standards -The Port's Bazbours Cut Container and Cruise Terminal is the only terminal in the nation to meet these standazds. October 2001 The EPA approves the Houston State Implementation Plan (SIP) on air quality attainment -Bayport is included in the SIP's measures. November 1999 A $387 million Bond Election for Phase One of the Project was approved by a 60-40% margin countywide. 1998 - 2002 The Port created and participated in the Citizen Advisory Group (CAG), which included port officials, citizens, area cities, community groups, environmental groups, labor organizations, maritime industry representatives and other interested groups. As a show of good faith, the Port Authority requested the Corps to postpone the Bayport Scoping Meeting to give the CAG the opportunity to develop a list of concerns for saypon Consainer ~ Cruise Temdnat page 2 of 9 May 2003 i i the EIS to address. The CAG will release a report with recommended changes to the Bayport Master Plan to address the concerns of citizens. January 2000 The Port committed the local share of funds to the Houston-Galveston Area Council for port access projects including the construction of grade separations for major roadways that would cross the Port's container rail west of State Highway 146. Additionally, the Port committed the local share for a dedicated flyover for a truck entrance and a separate flyover for the cruise temunal entrance. 1999 Members of the City Council of Seabrook lost a recall vote before an agreement was reached. However, at a significant cost, several provisions of the last proposal remained in the master plan including the relocated truck entrance and athree-mile long, 130-foot wide, 20-foot tall sight and sound berm. The berm will be planted with native trees and shrubs to provide additional sepazation between the facility and the community. 1999 From the beginning, the Port of Houston Authority negotiated in good faith on an agreement with the City of Seabrook and offered several concessions. Under the last proposed agreement, the Port would provide some capital improvements for Seabrook neaz the Bayport Facility, including a fire station and a water treatment plant and the Seabrook City Council would agree to support the Bayport Project. September 1999 The Corps held its scoping meeting for the EIS on the Bayport Project at the Pasadena Convention Center. Over 1,000 people turned out for the meeting. December 1998 The Corps, at the behest of the Port, made the decision to do an environmental impact statement, instead of an environmental assessment. October 1998 The Port applied for permits from the U.S. Army Corps of Engineers. 1998-1999 The Port sponsored public workshops and meetings on the Bayport master plan resulting in multiple changes to the plan. May 1998 Original Bayport Container and Cruise Terminal Master Plan was released to the public. 1993 The PHA purchased 608 acres of land adjacent to the PHA's Bayport property. The original plan was to use 500 acres for dredge material disposal and 100 acres as part of a future terminal. The PHA modified its plans and placed the maintenance dredge material in another location. 1964 Port of Houston Authority purchased a major portion of the Bayport Property that is adjacent to the 7,200-acre Bayport Chemical Complex, south of the Bayport Channel, and located on Port Road in the Pasadena Industrial District. Bayport Contains & Guise Tmnmal page 3 of 9 May 2003 n The Port Authority will continue to work to address all public concerns and issues regarding the proposed facility, setting a new standazd in the maritime industry for environmental stewazdship and community friendliness. The Port Authority wants to be a good neighbor and will work as hazd as we can to meet that goal. Alternate Sites ~ The Corps' DEIS presented resoundingly clear and supportive evidence that the Bayport site is the best site for a container and cruise terminal. The Corps considered 78 preliminary sites in the Galveston Bay area for study in its DEIS, eventually cutting the number to eight for study in the DEIS. The Spilmans Island site is an active, 50-yeaz dredge disposal site. If this site was filled and used as a container and cruise facility, a • new site would have to be found that would accommodate over 48 million cubic yards of current and future dredge material. An upland disposal site would require 964 acres of land for the material to be stacked 45 feet high, including 234 acres for 6.5 miles of levees. After the mitigation for the site, the additional costs for pumping the material the extra distance, purchasing land, creating a new master plan for dredge material management, and conducting an environmental impact statement would be conservatively estimated at $157 million more than Bayport. If the material were used for marsh creation neaz Spihnans Island, the 48 million cubic yards would create 4,300 acres of mazshland in an undesirable location in Galveston Bay at a cost estimated to be well in excess of $230 million. In 1999, the voters approved $387 million for port bonds to construct Phase lA of the project. The Spilmans Island alternative would not be monetarily feasible, economically sensible, or efficiently timely in completion as it would cause at least asix-year delay in the construction of the project. Design Phase Contracts The PHA Commission has approved a recommendation to allow the PHA to accept proposals for container yazd cranes for Bayport. Additionally, under terms of a contract awarded by the Port Commission in 2001, the services of Lockwood, Andrews & Newnam, Inc. (LAN) are to be provided over approximately a seven-yeaz period with funding authorized on an annual basis. LAN has provided a new scope of services for the second year of the seven-yeaz period that began November 1, 2002. The new scope of work will include continued project management, completion of the roadway transportation study, design work for repair and maintenance buildings, and an information management system. Bayport Cwrtainc & Cruise Tomtinal page 5 of 9 May 2003 The PHA Commission also has authorized LAN to issue requests for qualifications (RFQs) for architectural and professional engineering services for a maintenance and repair building, marine terminal gate facility, and an administration gate building at Bayport. Under terms of its program management services contract awarded by the commission in 2001, LAN is responsible for preparing the RFQs related to Phase I development of Bayport. Although no construction will be performed and no spending will be authorized until and unless the corps approves the project, bea nning the process now of advertising for and receiving RFQs and proposals will save time and money when the Port Authority is authorized to begin construction. The entire bidding and contracting process can take six to eight months from the time bids are submitted, evaluated by staff, reviewed by commissioners, and then awarded. EnvironmentalOuality ISO 14001: The Port Authority prides itself on being an environmental leader. Last year, the Barbours Cut Container Terminal and the Central Maintenance Facility became the first of any port facilities in the U.S. to meet the rigorous standards of ISO . 14001 compliance.. This was achieved through the development and implementation of a voluntary environmental management system (EMS) that focuses on reducing and recycling solid waste, lowering air emissions, and improving storm water quality. These goals and standards are expected to be achieved upon the completion and opening of the first phase of the Bayport Container and Cruise Terminal facility. Air Emissions: The construction and operation of Bayport has been factored into the State Implementation Plan that has been submitted for EPA review and approval. In fact, the emissions included in the plan exceed the actual emissions expected from the project. The DEIS covers small particulate emissions as a subset of the Corps' air quality study. The Port Authority is committed to using alternative fuels when available for its equipment at Bayport. The Port Authority currently uses the diesel emulsion fuel PuriNOx at Barbours Cut and has experienced a 25 to 30 percent reduction in nitrogen oxide (NOx) and a 30 to 50 percent reduction in particulate matter (PM). Additionally, the Port Authority is experimenting with selective catalytic reducers (SCR) and other technologies on some of its equipment to further reduce emissions. Solid Waste: The Port Authority has collaborated with the Texas Commission on Environmental Quality (formerly the Texas Bayport Contains $ Cruise Tammal page 6 of 9 May 2003 • Natural Resource Conservation Commission) to reduce its use of absorbent materials by 50 percent to meet the EMS objective. The goal was attained by using a cement mixer to distribute oil evenly throughout all used absorbent material. The material can then be reused to absorb six or seven additional spills. Traffic Congestion: The Port Authority recognized the need for roadway improvements neaz its projects and has made the commitment to fund the local share of port access projects to improve traffic flow, allow quicker transactions, reduce emissions, improve safety and allow for efficient cazgo movement. Some of the projects proposed for Bayport include a flyovers that would link State Highway 146 and Port Road, a flyover from State Highway 146 that would connect to a new Cruise Road for passengers azriving at our cruise facility, and grade separations west of State Highway 146 over our proposed north-south rail corridor that pazallels the existing Union Pacific track. Our designs also include special intersections that would prevent truck traffic from using city streets and we have proposed that Port Road be widened and straighten to improve traffic flow. Noise: The Bayport Facility will be surrounded on the south and east portions of the property by athree-mile long, 130 foot wide, 20-foot tall earthen sight and sound berm planted with trees and native vegetation. This berm will effectively limit noise and light exposure outside of the terminal. Additionally, the truck entrance, roadways, cruise road, rail yard, container facility, cruise terminal, warehouses, and empty container yard will all be inside the berm. For the north shore of the Bayport Channel, the Port Authority will build a 20-foot tall sound and sight wall to protect comrriunities to the north. Additionally, the Port Authority will use the best available, high tech spreader bazs on our wharf cranes to dampen sound. Our existing Bazbours Cut Container Terminal, which is just four miles north of Bayport, serves as an example of the limited noise impact of the facility. During tours by our visitors we often drive just a few blocks away from Bazbours Cut Boulevazd, turn off the car engine, roll down the windows, and let people deten~nine if they can heaz the terminal. So far, everyone has told us that they do not heaz any noise. Moreover, Bazbours Cut was not designed with the same mitigation plan as Bayport. We are confident that our terminal will be community friendly. Houston Ship Channel and Galveston Bay: The deepening and widening project for the Houston Ship Channel is creating 4,200 acres of new marsh for the Galveston Bay area and restoring Saypon Container & c]uise iemimal page 7 of 9 May 2003 • historical islands for bird rookeries. This commitment to the environment will not change with our Bayport Project. The Port Authority will create up to another 200 acres of mazshlands in Galveston Bay from dredge material. These marshlands act as a nursery for marine life and provide excellent bird watching and fishing opporlwzities increasing the recreational value of Galveston Bay. The Port Authority has purchased land near the Bayport property that will be protected as a conservation easement. The 173-acre site is hydrologically connected to the Armand Bayou Nature Center to the south and east. On this tract, the Port Authority will create 66.8 acres of wetlands on the site to replace the 18.3 acres of wetlands on the Bayport Property (a 3.6:1 replacement ratio). The Port will enhance 12 acres of existing wetlands on the easement and will create 71 acres of restored upland coastal prairie, a land type that is becoming scarce on the Texas Gulf Coast. Neither the Corps of Engineers nor the Port Authority has any plans to deepen the channel to 50 feet. The wharves at Bayport will have a 50-yeaz life span. To design and construct a wharf that can accommodate a 50-foot channel compared to .a 45-foot channel would increase the cost of the whazf by an insignificant 1.2%. That compares favorably to the construction cost of a new wharf in excess of $23,000 per liner foot in today's dollazs. If the Corps of Engineers decided to deepen the Houston Ship Channel and the Bayport Channel to 50 feet, there would have to be a sepazate environmental impact statement. As an example, the Houston Ship Channel is currently being deepened to 45 feet from 40 feet. To deepen the channel by five feet required Congressional approval in the Water Resources Development Act, bond election approval by the voters of Harris County, completion of an EIS by the Corps, and annual appropriations by Congress. Finally, if there were such a plan to deepen the channel to 50 feet, it would be known by the Corps. Erosion Protection: The Port Authority has ah-eady improved the north shore of the Bayport Channel to prevent erosion fi-om wakes caused by the 6,487 vessel and barge transits each yeaz that currently call on existing private facilities in the Bayport Channel. Property Values: The Bayport Citizens Advisory Committee, made up of area municipalities, environmental groups, industry leaders and the maritime community, commissioned a study on property values in the residential area near the Bazbours Cut Container facility. The study found that residential properties neaz Bayport Contains & Guise Terminal page 8 of 9 May ]A03 • the Barbours Cut facility are increasing in value at a quicker pace than similar residential properties in the rest of Harris County. The study showed the area near Barbours Cut compared favorably with most communities in Harris County. San Jacinto Railroad: The BNSF Raikoad and a collection of Bayport chemical companies are trying to build a new line to link the Bayport Chemical Loop to BNSF railroad to add competition to that market. The Port Authority will not use that route, as we will have our own rail yard at Bayport connecting to our Barbours Cut's rail yard to the north. Containers from Bayport will not use the San Jacinto Rail Line. Bayport Con[aina & f}uise Ternonal page 9 of 9 May ?A03 ~°~o~ T~ ~qGo • o ~. ,~ - _. D~° ~°~ ~ ~ _- -- O y a ~° se ~o 0 00o STAN ~~ Position Paper ACT ST ON THE PROPOSED BAYPORT C The Final Environmental linpact Statement (PETS) prepared and released on May 16, 2003 by the U.S. Army Corps of Engineers (USAGE) evaluates the Bayport Container & Cruise Terminal (Bayport project) proposed by the Port of Houston Authority (PHA) along with alternative sites picked for review by the USAGE. The FEIS takes into consideration all of the public comments that were submitted following the USACE's release of the draft environmental impact statement (DEIS) in November 2001. Originally scheduled to end on June 16, the public comment period will now close on July 16. The USAGE will consider public comments on the FEIS in the finalization of its Record of Decision (ROD), which is expected in late August. The ROD will authorize one of three actions related to a construction permit for Bayport: 1) issuance of the permit, 2) issuance of the permit with modifications or conditions, or 3) denial of the permit. The USACE's permit decision is expected to be announced in September. 1. Air Quality Matters • Bayport will comply with the Houston area's clean air plan. In fact, all of the Bayport emissions were overestimated in the plan. o Onsite Bayport nitrogen oxide (NOx) emissions estimated in the FEIS are only 33.5% of the onsite Bayport emissions assumed and included in the clean air plan. o Emissions from Bayport will.be below the health-based National Ambient Air Quality Standards (NAAQS) established by the federal Environmental Protection Agency (EPA) in the surrounding neighborhoods. o Emissions from Bayport will be below the air quality standards for diesel particulate established by the EPA and the State of California. • Any of the alternative sites would have air impacts that are equal to or greater than Bayport. o Operational emissions from all of the alternative sites would have the same level of impacts for ozone, carbon monoxide (CO), nitrogen oxide (NOx), sulfur dioxide (S02), diesel particulate and PM10 (particles with a diameter of 10 microns or less). BAYPORT POSiT70N PAPER page 1 of 7 May 2003 • o During the construction phase, the alternative sites would be likely to have PM 2.5 (particles with a diameter of 2.5 microns or less) emissions that aze greater than at Bayport, and that could exceed the NAAQS. o The FEIS states that construction-related impacts at the other alternatives "would, in general, be greater than those related to the Bayport terminal location alternative since these locations would require additional stabilization and/or increase in elevation." . • The Bayport facility will be more protective of public health and the environment than the FEIS shows because the analysis used overstated emissions. o The FEIS states, "Assumptions were generally made that would result in an estimate of the worst case scenario that could result from the terminal operation." o The study used very high estimates of emissions from construction and operations, like trucks and cranes. The FEIS states, "The emissions inventory presented for the terminal development is intended to be an order of magnitude of emissions greater than what would actually result from terminal operations." o The analysis in the FEIS did not include significant components of the PHA's air mitigation plan. o The study includes the first-ever model in Texas of the impact of such a facility under the new PM 2.5 air quality standard, as well as the impact of diesel particulate emissions. o The FEIS did not consider all of the benefits of several upcoming environmental regulations that will improve air quality in the region, including the new diesel and fuel standards-announced by EPA, new Tier II and Tier III diesel equipment, and other rules relating to the Houston clean air plan. The FEIS states, "This study did not fully account for future regulations and technological advances that would potentially reduce emissions from operations related to the terminal project " o The FEIS states, "Therefore, actual emissions related to the project are likely to be lower than those presented in this assessment." o The FEIS states, `Background levels of PM 2.5 should decrease over time as this pollutant is further.controlled. This positive impact was not~included in the analysis since it was not possible to determine the degree to which future background levels might decrease." . • The Port has also comntted to controls that will reduce emissions from Bayport, and further minimize the chance of any harm to citizens living near the facility. o The Port has committed to reducing emissions ofozone-forming chemicals well beyond what is requfred in the Houston clean air plan. BAYPORT POS1TiON PAPER page 2 of 7 May 2D03 • o The Port also has committed to reducing diesel emissions through the use of clean fuels and clean engine technologies. 2. Wetlands and Water Quality Matters The FEIS includes a detailed analysis of the wetlands and other habitat at the Bayport site. The Corps has determined that there are 19.71 acres of wetlands that aze subject to federal jurisdiction under the Clean Water Act (CWA), of which 19.28 acres will be impacted by the project. The lazge majority of those wetlands aze on old dredge material disposal areas north of Port Road. • The PHA will mitigate for the loss of these wetlands on a 173.5 acre tract located on Red Bluff Road. The Port will create 66.8 acres of new wetlands, within the Taylor Bayou/Bayport Channel watershed, a ratio of more than 3.4 acres of wetlands for each one acre used to build the terminal. • The PHA will compensate for other aquatic resources and habitat values. In addition to the created wetlands, the Red Bluff Road site will include: - enhancement of 12 acres of existing wetlands - 23.7 acres of forested and shrub uplands - 71 acres of restored coastal prairie - a conservation easement will protect the entire 173.5 acre tract • At least 200 acres of inter-tidal marsh will be created as a beneficial use of dredge material. • Critically, the water quality functions of the aquatic resources (both jurisdictional and non-jurisdictional) will be adequately replaced. • The storm water quality plan at Bayport will meet -and exceed -all environmental standards. • This program is being implemented even though sampling of storm water at the existing Barbours Cut Terminal has never exceeded any regulatory limits. That record has been set without the high level of protection Bayport will have. o The Bayport Terminal will capture the first inch of rainfall at the terminal and divert it to a holding pond. The first flush pond will trap suspended solids, thus decreasing the discharge of sediments into the bay. o The rate of storm water flow into Pine Gully will be limited to pre-project conditions. The South Terminal Retention Pond will capture and hold storm water in excess of BAYPORT POSITION PAPER pale 3 of 7 May 2003 • one inch, and then release it slowly. This retention pond will have a created wetland in its bottom to filter the storm water before its release. o The areas of the terminal with the highest chance to contribute contaminants to storm water (the Maintenance Facility, RTG maintenance areas, and equipment parking azeas) will have isolated drainage basins, which will have inlet treatment units to remove TSS, oil and grease, with the remaining water then proceeding to the first flush basins. 3. Alternative Sites • The USACE analysis of alternatives includes several sites that, in the opinion of the PHA, aze not practical or reasonable. - Cedar Point is located in Chambers County, not Hams County. There is no deep water access, so a new 40 foot deep channel approximately 15,000 feet long would need to be constructed from the Houston Ship Channel to Cedar Point. An additional 1021ane miles above that needed for the Bayport alternative would be required. From both an operational and financial standpoint, this alternative is neither reasonable nor practical. - . Spillman's Island cannot be used for a container terminal. The site is a key component of the 50-yeaz plan~to dispose of dredged material from the congressionally authorized Houston Ship Channel project. Disposal of maintenance material is essential to keeping the Houston Ship Channel open. A replacement for Spillman's Island must be located and permitted before Spilhnan's Island could be used. This alternative disposal site would also produce environmental impacts. Even if that hurdle is overcome, repeated analyses have demonstrated that the costs of constructing a container terminal on the active disposal site are much higher than . those for construction at Bayport. - Shoal Point in Texas City is not available to the PHA. A permit has been granted to another applicant to use that location. The construction of a Texas City terminal does not lessen the need for Bayport, but it does eliminate the location as a reasonable or practical alternative. • Bayport is a good location for the project. It is located in an area designated for industrial uses along an existing federally maintained deep water channel. It has synergistic operational efficiencies with the existing Barbours Cut Terminal. It is in the overall public interest. 4. Noise Matters • It is important to recognize that the noise modeling in the FEIS is extremely conservative. Indeed, according to the FEIS, it was "designed to evaluate aworst-case condition." BAYPOR7 POS277ON PAYER page 4 of 7 May 2DD3 • o For example, the source sound level used for operations at the container terminal was the worst case hourly level among all measurements taken by the USACE at the existing Bazbours Cut Terminal. o Additionally, the model assumes full build-out with all seven berths operating during a 24-hour period. This scenario, which cannot possibly occur for many yeazs, will never occur for more than a small fraction of the time the terminal operates. o Consistent with its policy to be a good neighbor, the PHA will continue to work with surrounding areas to ensure compatibility with surrounding land uses. • The FEIS concludes that only short-term, less than significant noise impacts would occur as a result of construction activities at Bayport. • The FEIS demonstrates that no significant noise impacts would occur from vehicular traffic at Bayport or from traffic coming to or from the proposed location. • Bayport will not violate any noise regulations. • If the Bayport Terminal was not built, similar noise levels would likely occur at the site anyway due to future industrial growth. According to the FEIS, "Under the No Action Alternative, increases in industrial development aze projected at several of the terminal location alternatives, including the Bayport azea. It is expected that ambient noise levels in the Bayport area and at the Cedar Point and Pelican Island locations would increase commensurate with this prof ected industrial growth." • The P13A is committed to building a 20-foot-high barrier to reduce noise from both construction and operation of the Bayport Terminal. • According to the FEIS, "[t]here are no ground-borne vibration impacts as a result of construction, vehiculaz traffic, rail, or terminal operations under the Bayport terminal location ..." • Despite the fact that the modeling over-predicted noise impacts, the PHA has committed to the following mitigation measures to further protect the azea: - Construction o Construction equipment that has the lowest possible noise emissions and acoustic height necessary to perform the job will be selected if feasible. o All equipment will be in good repair and fitted with "manufacturer recommended" mufflers. o All equipment maintenance and lay-down areas will be located as far from the development azea as possible. o The PHA will use tangent pier construction techniques for the container wharf instead of sheet pile whazf construction to eliminate noise associated with pile drive equipment. o The Port will use drilled shafts instead of pile driven supports to reduce noise. BAYPORT POSi170N PAPER page 5 of 7 May 2003 • i - Operation o All terminal equipment will be properly maintained to reduce noise. o All crane spreaders will be fitted with an impact control device which will reduce impact noise by approximately 35%. 5. Surface Transportation Matters (Motor Vehicles and lZailroad) ^ Most of the roadways identified as requiring improvements will need to be improved in the future, regardless of whether or not the PHA builds the Bayport facility. These required improvements are addressed in the no-action alternative. ^ The need for roadway improvements in most of the study area would be triggered by the projected increases in "background traffic" (trips not associated with facility). This does not include the widening of Port Road from two lanes to four lanes, or ramp improvements (flyovers) between State Highway 146 and Port Road. The need for improvements along SH 146 would be accelerated as a result of the Bayport project. A comparison of the required improvements at full build-out in the year 2025 indicates that one additional freeway lane would be needed in each direction on SH 146. The comparison also indicates that the Bayport site would require the least amount of lane mile construction compared to the alternatives. Table 3.5-53 Oomparative Total of Lane Miles Required Per Alternative u~~~.FTk}a ~JL 3-j~2i~'~4 ~,_ ~~~ ~ v ~ C:. . ~ ~..~1+... y~3.. L"-i~y'G' :=~y ~ i ~, . _~' A>r,Alternati~e~~~. N~~~ ~:_ . ... "~Er2DD5~ _ ~,'.20'1,,5,x'~ ";2U~5 Ba ort 2 16 82 Pelican Island 1 40 99 S illmans Island 9 16 100 Shoal PointlBa ort 1 21 105 U er San Jacinto Ba /Ba ort 4 22 111 Shoal Point 1 15 127 Cumulative Scenario 17 30 166 Cedar Point 9 62 184 No Action Alternative 132 186 229 ^ The PHA's main function is to provide, operate, and maintain waterways and marine facilities for cargo and passenger ships. The PHA does not build roads outside of its facilities (responsibility ofcities, county, or state). The PHA, however, has made a commitment to fund a portion of the intersection and rail crossing improvements in the local area to help accelerate their construction and thereby minimize traffic congestion. At full build-out in the year 2025, approximately 5,620 trucks will make more than 11,000 trips per day (transit into and transit out of the complex equal one trip). Bayport trucks will represent approximately 8% of the projected traffic on SH 146 at Port Road in 2025. BAYPORT POSITTON PAPER page 6 of 7 May 2003 Rail service to the facility would not begin until approximately 2012. Until that time, rail cargo would be trucked to the nearby Barbours Cut inter-modal facility. Initiation of rail service will significantly decrease the volume of truck traffic associated with the development. BAYPORT POSI'17ON PAPER page 7 of 7 May 2003 GBCPA Press Release GBCPA Press Release FOR IMMEDIATE RELEASE June 24, 2003 CONTACT: Katie Chimenti, 281-326-3343 Nancy Edmonson, 281-471-4567 Bayport Lawsuit Filed: We Need the Truth Page 1 of 3 A broad coalition of cities, conservation groups and other organizations today filed suit in federal court in Galveston against the U.S. Army Corps of Engineers regarding the giant container port and cruise terminal proposed for Bayport. The Corps of Engineers is charged with processing the Port of Houston Authority's application for a permit to build this facility. The suit alleges three major violations of the National Environmental Policy Act (NEPA) and the federal Clean Water Act. It requests that the federal District Court order the Corps to prepare a Supplemental Environmental Impact Statement (EIS) due to deficiencies in the Final EIS that was released by the Corps on May 16, 2003. The suit also asks that the wetlands policy being followed by the Galveston District be overturned by the court as , illegal rule-making and that the Corps be required to reconsider the extent of wetlands at the site. Joint filers of the lawsuit are the Cities of Shoreacres and Taylor Lake Village, the Galveston Bay Conservation and Preservation Association (GBCPA), Galveston Bay Foundation, Houston Audubon Society, Gulf Restoration Network, Texas Committee on Natural Resources, Houston Yacht Club, the seafood professionals' organization PISCES, and the air pollution watchdog group GRASP--Galveston Houston Association for Smog Prevention. "The public has a right to be told the truth in an EIS, and that has not happened yet," said Jim Blackburn, chair of GBCPA. "We have a right to see an honest and unbiased analysis, and we are still waiting for this. That's why we are going to court." -more-- Bayport Lawuit Filed 2 of 3 Mayor Nancy Edmonson of Shoreacres, the community immediately north of the Bayport channel, underscored the point that the Final EIS contains new information and is far from final. "After five years of fighting this project, we have only now been told that air pollution and noise standards will be violated, and that we will experience vibration from ships that could cause problems in our residential community," said Edmonson. "We have been saying all along that there would be problems, yet only at the very end of this process are we beginning to see the first glimmer of the truth being acknowledged by the federal permitting agency." The biggest concern expressed by the plaintiffs involves the assessment of alternatives to the Bayport site. Under Corps rules, if wetlands are to be filled for a project, the Corps must http://www.gbcpa.netlPress/Bayport Lawsuit Filed.htm 6/26/2003 GBCPA Press Release Page 2 of 3 choose the least damaging, environmentally preferable alternative. In April, Colonel Leonard Waterworth, commander of the Corps' Galveston District, issued a permit to the City of Texas City to build a container facility at Shoal Point. This new port will handle more containers than would the proposed Bayport.facility, and it will guarantee that the greater Houston region remains competitive in container traffic. "Col. Waterworth found that Shoal Point was the least damaging practicable alternative site for a container port on Galveston Bay," said Blackburn. "But now we have an EIS issued for Bayport that fails even to mention the issuing of the Shoal Point permit, let alone that the colonel found the Texas City site to be the best one for our bay system. Something is wrong here. Thatls why we are going to court." The wetlands analysis at Bayport poses other types of problems. Although over 140 acres of wetlands were identified on the site, only 19.7 acres were considered to be "jurisdictional" under the Clean Water Act. Further, the Port of Houston Authority has proposed only 66 acres of mitigation for wetland losses. The U.S. Fish and Wildlife Service has stated that these wetlands are unique and of national importance, and the U.S. Environmental Protection Agency has questioned the manner in which the Corps determined that it had regulatory authority over only 19.7 acres. --more-- Bayport Lawuit Filed 3 of 3 "We are involved in this litigation because of the wetland and habitat issues," said Joy Hester, executive director of the Houston Audubon Society. "These are coastal prairie wetlands that are extremely important to us and the birds as well as to the bay. We agree with the U.S. Fish and Wildlife Service that these are wetlands of great significance to the region and to the nation." One of the most important issues included in the lawsuit is concern over the widening and deepening of the Houston Ship Channel. In the later 1980s, environmentalists and the Port of Houston Authority fought over this and reached a settlement whereby the channel would be dredged to 45 feet deep and 530 feet wide. In the plans for Bayport, the container docks are to be constructed to 56 feet of depth, and the wharf cranes are sized for post-Panamax vessels, which have a depth requirement of 45 to 53 feet. "It is clear that a deeper channel will be needed for this port," said Blackburn. "In both the Draft EIS and the Final EIS, the Corps stated that a deeper channel would be necessary and that they were analyzing the impacts, yet no such analysis could be found in the Final EIS. A deeper channel would bring more salt water into Galveston Bay, and the quickest way to kill the marine productivity the oysters and the shrimp and juvenile fmfish is to increase the salinity in the bay. Bayport is a bona fide threat to Galveston Bay. We can't let this happen." Mayor Edmonson noted that the permit akeady issued for the Texas City container terminal is a relief valve for pressure on existing facilities for some time to come, and that other alternatives to the Bayport site exist, should additional capacity still be needed. "Harris County recently issued a report contradicting the Portis analysis of development costs for Spihnan's Island in the Ship Channel," Edmonson said. "The Port has consistently told us that Spihnan's Island is too expensive to develop, but now the County offers us a http://www.gbcpa.net/Press/Bayport Lawsuit Filed.htm 6/26/2003 GBCPA Press Release Page 3 of 3 different picture. What we need is the truth. Apparently the only way to get it is to go to court." --30- To view actual filing please use the following hyperlink /Leg~~aUBayport Comulaint Final .pdf Galveston Bay Conservation and Preservation Association P.O. Box 323, Seabrook, Texas 77586 Phone: 281-326-3343 Website: www.ebcpa.net E-mail: gbcpa(a~evl.net httn://www.gbcpa.net/PressBayport Lawsuit Filed.htm 6/26/2003 • s IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION (1) THE CITY OF SHOREACRES, (2) THE CITY OF TAYLOR LAKE VILLAGE, (3) GALVESTON BAY CONSERVATION AND PRESERVATION ASSOCIATION (GBCPA), (4) THE GALVESTON- HOUSTON ASSOCIATION FOR SMOG PREVENTION (GRASP), (5) TEXAS COMMITTEE ON NATURAL RESOURCES (TCONR), (~ GALVESTON BAY FOUNDATION (GBF), (7) HOUSTON AUDUBON SOCIETY (HAS), (8) HOUSTON YACHT CLUB (HYC), (9). PROFESSIONALS INVOLVED IN SEAFOOD CONCERNED ENTERPRISES (PISCES), AND (10) GULF RESTORATION NETWORK (GRN), Plaintiffs, v. CIVIL ACTION NO (1) COLONEL LEONARD D. WATERWORTH, DISTRICT ENGINEER, GALVESTON DISTRICT - U.S. ARMY CORPS OF ENGINEERS; (2) LIEUTENANT GENERAL ROBERT B. FLOWERS, COMMANDER AND CHIEF OF ENGINEERS, U.S. ARMY CORPS OF ENGINEERS; (3) HONORABLE LES BROWNLEE, ACTING SECRETARY OF THE ARMY; AND (4) U.S. ARMY CORPS OF ENGINEERS Defendants. PLAINTIFFS' ORIGINAL COMPLAINT AND APPLICATION FOR INJUNCTIVE RELIEF COME NOW, the Cities of Shoreacres and Taylor Lake Village, the Galveston Bay Conservation and Preservation Association ("GBCPA"), the Galveston-Houston Association for Smog Prevention ("GRASP"), the Texas Committee on Natural Resources ("TCONR"), the 1. • • Galveston Bay Foundation ("GBF"), the Houston Audubon Society ("HAS"), the Houston Yacht Club ("HYC"), the Professionals Involved in Seafood Concerned Enterprises ("PISCES"), and the Gulf Restoration Network ("GRN"), and complain of Col. Leonard D. Waterworth, District Engineer, Galveston District - U.S. Army Corps of Engineers; Lieutenant General Robert B. Flowers, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Honorable~Les Brownlee, Acting Secretary of the Army; and the U.S. Army Corps of Engineers. I. INTRODUCTION AND SUMMARY OF THE CASE 1. Plaintiffs claim that the U.S. Army Corps of Engineers for the Galveston District ("Galveston District") has failed to comply with federal law when evaluating the permit application ~by the Port of Houston Authority ("PHA") to construct the Bayport Container and Cruise Terminal Facility ("Bayport Project") in and along Galveston 'Bay in Harris and Chambers Counties, Texas. 2. First, Plaintiffs seek a ruling from this Court that the recently released Final Environmental Impact Statement ("FEIS") for the Bayport Project does not comply with the National Environmental Policy Act ("NEPA") by failing to address significant new circumstances and/or information in a Supplemental Draft Environmental Impact Statement ("SDEIS") in accordance with the regulations of the Council on Environmental Quality (CEQ) that are controlling over the actions of the Galveston District in its consideration of the PHA's permit application. 3. Second, Plaintiffs seek to nullify the Galveston District's policy statement regarding its criteria for determining jurisdictional wetlands as an illegal rule -making not in accordance with the Administrative Procedure Act ("APA"), and have the Galveston District's 2. jurisdictional wetland determination for the Bayport Project location invalidated and re- examined without such a determination being based upon this illegal rule. 4. Third, Plaintiffs seek to have this Court declare that overland flow of surface water that connects wetlands with navigable waters is sufficient to make these wetlands jurisdictional waters of the United States under § 404 of the Clean Water Act due to the water quality nexus. 5. Finally, Plaintiffs seek to have this Court remand the delineation of jurisdictional wetlands back to the Corps for further evaluation in light of new topographic information and in light of the comments filed by the U.S. Environmental Protection Agency ("USEPA") arguing that the extent of jurisdictional wetlands at the site was greater than identified by the U.S. Army Corps of Engineers. II. JURISDICTION 6. This action arises under the National Environmental Policy Act ("NEPA") of 1969 as amended, 42 U.S.C. § 4321 et. seq., and the implementing regulations of said act. Plaintiffs seek judicial review pursuant to the NEPA and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706, as well as the Declaratory Judgment Act, 28 U.S.C. § 2201(a) and § 2202. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). III. VENUE 7. Venue is proper pursuant to 28 U.S.C.§ 1391 (b) and (e) because the Galveston District and portions of the Bayport Project are located in this district. 3. • • IV. PART>ES 8. The City of Shoreacres is a general law city in Harris County, Texas and its mailing address is 601 Shoreacres, Shoreacres, Texas 77571. 9. The City of Taylor Lake Village is a general law city in Southeast Harris County, Texas and its mailing address is 500 Kirby, Taylor Lake Village, Texas, 77586. 10. GBCPA is a non-profit organization whose purpose is to restore and enhance Galveston Bay and its estuaries, and its mailing address is 2600 Nasa Road One, Suite 103, Seabrook, Texas, 77586. 11. GHASP is anon-profit corporation whose purpose is to protect the health of residents of the Houston-Galveston area from air pollution including ozone and fine particle matter, and its mailing address is 3015 Richmond, Suite 201, Houston, Texas 77098-3013. 12. TCONR is a non profit organization whose purpose is to study the ecosystem and educate Texans about their natural environment, and its mailing address is 1301 South Interstate 35, Suite 301, Austin, Texas, 78741. 13. GBF is an organization committed to protecting and preserving Galveston Bay and its estuaries, and its mailing address is 17324-A Highway 3, Webster, Texas 77598. 14. HAS is a nonprofit organization that promotes the conservation and appreciation of birds and wildlife habitat, and its mailing address is 440 Wilchester Blvd., Houston, Texas, 77079. 15. HYCs a boating organization, which participates in and organizes regattas, and provides sailing lessons and other recreational water activities in the Galveston Bay, and its mailing address is 3620 Miramar Drive, P.O. Box 1276, La Porte, Texas, 77571. 4. • 16. PISCES is an organization of commercial fishermen in Galveston Bay, and its mailing address is Route 3, Box 384, Dickinson, Texas, 77539. 17. GRN is an organization comprised of forty groups throughout the Gulf States whose purpose is to protect the resources of the Gulf Region, and its mailing address is P.O. Box 2245, New Orleans, Louisiana 70176. 18. Col. Leonard D. Waterworth is sued in his official capacity as District Engineer of the Galveston District of the U.S. Army Corps of Engineers and may be served at 2000 Fort Point Road, Galveston, Texas 77550 in person or by mail at P.O. Box 1229, Galveston, Texas 77553-1229. 19. Lieutenant General Robert B. Flowers is sued in his official capacity as Commander and Chief of Engineers of the U.S. Army Corps of Engineers and may be served at 441 G Street, N.W., Washington, D.C. 20314. 20. Honorable Les Brownlee is sued in his official capacity as Acting Secretary of the Army and maybe served at 101 Army Pentagon, Washington, D.C. 20310-0101. 21. The United State Army Corps of Engineers is sued as an agency of the United States Government and may be served by serving Lieutenant General Robert B. ~ Flowers Commander and Chief of Engineers of the U.S. Army Corps of Engineers at 441 G Street, N.W., Washington, D.C. 20314. V. FACTS A. BACKGROUND 22. The PHA is proposing to construct its Bayport Project on approximately 1100 acres of land in southeastern Harris County. 5. • 23. The proposed Bayport Project site is located between the cities of Seabrook (to the south) and Shoreacres/LaPorte (to the north) and is bounded on the south by Pine Gully, on the east by Galveston Bay and the El Jardin subdivision of Pasadena, and on the north by the Bayport deepwater channel. 24. In order to construct docks along the Bayport Channel, to conduct dredging activities in the Bayport Channel and in Galveston Bay, and to discharge dredge and fill material into waters of the United States, all of which are necessary to build the proposed Bayport facility, the PHA was required to obtain permits from the Galveston District of the Corps of Engineers under § 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 403) and § 404 of the Clean Water Act (33 U.S.C. § 1344). 25. The proposed Bayport Project permit application #21520 by the PHA was first filed with the Galveston District in 1998. 26. There have been several revisions made by the PHA to its original permit application, as reflected in various public notices. 27. The most recent public notice dated May 16, 2003 announced to the public that the PHA proposes to construct seven container ship berths, three cruise ship berths, associated docks and storage and a large rail yard at the Bayport site. 28. The cost of the proposed Bayport facility is approximately $1.2 billion, with most if not all of this cost being provided by taxpayers. 29. Since 1998, GBCPA, as well as other environmental groups and many local municipalities, have opposed the PHA's proposed terminal facility being located at Bayport. 6. 30. Other alternative sites have been identified within the Galveston Bay system for locating this terminal facility that are less environmentally damaging and that aze acceptable to the plaintiffs. 31. A scoping meeting on the proposed Bayport Project was conducted by the Galveston District in 1999 pursuant to the rules of the CEQ for preparing environmental impact statements (EISs) and about 2,500 people attended. 32. A Draft EIS (DEIS) on the proposed Bayport Project was prepazed by the Galveston District and released in November, 2001. 33. Over 6,000 people came to the Galveston District's public hearing regarding the DEIS for the Bayport Project, which was conducted in December, 2001 at the George R. Brown Convention Center in downtown Houston. 34. Numerous issues were raised by the public at the December 2001 hearing about the lack of adequate analysis in the DEIS of the Bayport Project's environmental impacts, including wetlands, air quality, and noise impacts, as well as reasonably foreseeable future impacts to Galveston Bay. 35. The Galveston District has received over 2,000 comments regarding the Bayport Project from not only flee public, but also local, state, and federal agencies, as well as elected officials. 36. Included in these comments were requests for a Supplemental DEIS that would address the inadequacies of the Bayport DEIS. 37. On May 2, 2002, GBCPA wrote to the Corps requesting a Supplemental Draft EIS regarding wetlands, noise, and the alternatives analysis as well as requesting a re- examination of jurisdictional wetlands. 7. 38. On July 23, 2002, U.S. Congressman Nick Lampson wrote to Col. Waterworth, requesting a Supplemental DEIS because the analysis of~ alternatives was not adequate and not balanced. 39. Col. Waterworth wrote back to Congressman Lampson, stating that the FEIS would fully address his concerns and stating that publication of a SDEIS was not warranted. 40. On September 5, 2002, GBCPA again requested a Supplemental Draft EIS be issued after the second revised public notice. 41. On December 30, 2002, GBCPA, the City of Shoreacres, the City of Taylor Lake Village, the El Jardin Subdivision of the City of Pasadena, the City of Pasadena, the City of Seabrook, the City of El Lago, the Galveston Bay Foundation, GHASP, Houston Audubon Society, TCONR, PISCES, GRN, HYC, Sierra Club, Environmental Defense and National Wildlife Federation all wrote Col. Waterworth requesting a SDEIS due to new circumstances or information, including jurisdictional wetlands issues, the USEPA diesel carcinogen study, the PM2.s issue, and the inadequacy of the alternatives analysis. 42. On January 15, 2003, Col. Waterworth responded to the December 30, 2002 letter stating that he disagreed that significant new circumstances or information exist that rise to the level of requiring a SDEIS. 43. Col. Waterworth stated in the January 15, 2003 letter that the FEIS would address the concerns expressed in the December 30, 2003 letter asking for a SDEIS. 44. The Galveston District issued a Final EIS on the Bayport Project on May 16, 2003. 8. • • B. NEW INFORMATION 45. There are significant new circumstances and/or information that have either not been included in the recently released FEIS for Bayport or have been included in the FEIS for the very first time, both of which necessitate the issuance of a Supplemental DEIS that addresses these significant issues in a manner that allows for meaningful public review and comment. 46. Many of the so-called new circumstances were known to the Corps of Engineers prior to the release of the FEIS on May 16, 2003 but were not included in the FEIS. (1). TAE NEWLY PERMITTED CONTAINER FACII,ITY AT SAOAL POINT 47. The Galveston District recently permitted a new container port on Galveston Bay. 48. On April 15, 2003, Col. Waterworth of the Galveston District signed the Record of Decision ("ROD").approving issuance of a permit to the City of Texas City to construct a container terminal facility at Shoal Point near Texas City ("Shoal Point permit") 49. The Shoal Point permit allows construction of a six-berth container terminal facility on a spoil disposal island located behind the Texas City industrial complex in Galveston Bay. 50. The permitted Shoal Point facility will actually move -more containers, as measured in TEU's (twenty foot equivalent units), than will the proposed Bayport facility. 51. In the ROD discussing the Shoal Point facility and its EIS, Col. Waterworth determined that the Shoal Point site was the least environmentally damaging practicable alternative site in the Galveston Bay system for a container terminal facility. 52. The proposed Bayport site was evaluated by the Galveston District in its Shoal Point FEIS as one of the alternative sites for locating the Shoal Point container terminal facility, but the Bayport facility was found to be more environmentally damaging and was not selected. 9. • 53. The Bayport FEIS was released by the Galveston District about a month after Col. Waterworth signed the Shoal Point ROD. 54. In the Bayport FEIS, the Shoal Point site is still identified as a reasonable and practicable alternative for locating the Bayport Project. 55. In the Bayport FEIS, there is no mention of the fact that the Shoal Point site had been found to be the least environmentally damaging alternative and had already been selected for issuance of a Corps permit to construct a container terminal facility. 56: At this time, the best site as determined by the Corps' Galveston District for constructing a container port in the Galveston Bay system in the least environmentally damaging way -Shoal Point - has been.issued a permit by the Galveston District. 57. The movement of containers into and out of the Houston/Galveston region in the near future is secure with the permitting of the Shoal Point facility. 58. The question before the Galveston District now is whether or not a permit should be issued for a second container terminal facility on the Galveston Bay system, e.g., the proposed Bayport facility, given the Shoal Point facility has already been permitted. 59. That question has not been fully or fairly analyzed in any EIS issued to date by the Galveston District. (2). Co-Location of Cruise and Container Facilities for the Bayport Project No Longer Necessary 60. The permit application submitted by the PHA for the proposed Bayport Project requested a permit allowing the construction of both container berths and cruise berths together (e.g., co-located). 10. • 61. In the DEIS and the FEIS, the Galveston District has attempted to identify and evaluate alternative sites that were large enough to allow both the container and the cruise facilities to be located at the same site. 62. However, in the Bayport FEIS, unlike the DEIS, the Galveston District states for the first time that it does not consider cruise and container facilities to be functionally dependent. 63. If these facilities are not fiuictionally dependent, then they do not need to be co- located. 64. Although the Galveston District has established a new circumstance -container and cruise terminals aze now considered functionally independent -this conclusion was not carried through the alternatives analysis in the Bayport FEIS. 65. For example, there was no analysis of a container port at Shoal Point and a cruise terminal in Galveston, an alternative that is clearly viable after the issuance of the Shoal Point permit. 66. There are a number of alternative sites to Bayport where only a cruise terminal could be located, but they were never considered by the Galveston District in its evaluation of the Bayport Project. (3). HARRIS COUNTY'S NEW STUDY OF DEVELOPING SPILMANS ISLAND 67. One of the alternative sites evaluated in the Bayport FEIS is Spilmans Island. 68. Spihnans Island is currently used as a spoil disposal site and is adjacent to the existing Bazbers Cut container facility of the Port of Houston Authority. 69. The cost of development of Spilmans Island for a container facility has been a major issue in determining whether Spihnans Island is a practicable alternative to the proposed Bayport site. 11. 70. PHA had determined that developing Spilmans Island would be cost-prohibitive, due to its being a spoil disposal site. 71. Earlier this year, acting independently of the Port of Houston Authority, Hams County commissioned a study of the cost of developing Spilmans Island. 72. This study by Harris County, dated May 2003, concluded that the cost of development of Spilmans Island was substantially lower than had been determined by the Port of Houston Authority. 73. The Galveston District has not considered this new study by Harris County in the DEIS or FEIS for Bayport in evaluating Spilmans Island as an alternative site. 74. This study by Harris County is new information that significantly affects the evaluation of alternatives to the proposed Bayport site. (4). NEw TOPOGRAPHIC DATA INCREASES ACREAGE OF JURISDICTIONAL WETLANDS 75. Wetlands located in the 100-year floodplain of a navigable water are considered jurisdictional wetlands under the Clean Water Act. 76. Some of the wetlands at the Bayport site were determined to be jurisdictional because they are in the 100-year floodplain. 77. In December, _ 2002, Harris County and the Federal Emergency Management Agency ("FEMA") released updated topographic information for Harris County as part of a study being conducted of the extent of the 100-year floodplains in Harris County. 78. The Galveston District is fully aware of Harris County's on-going study with FEMA through which the release of this new topographic information occurred. 12. 79. This updated topographic information is based on LIDAR (Light Detection and Ranging) data and is the best available information for determining the ground elevations throughout the Bayport site. 80. In accordance with Harris County floodplain regulations, actual ground elevations at a site are used, in conjunction with the 100-year flood level of the adjoining watercourse, to determine the extent of the 100-year floodplain. 81. This new topographic information confirmed that the ground elevations at the Bayport site have changed significantly from the elevations reported in both the Bayport DEIS and FEIS, due primarily to the effects of land surface subsidence. 82. The 100-year floodplain at the Bayport site is determined by the 100-year flood levels along the Bayport Ship Channel and Pine Gully, which have been determined to be at an elevation of 12 feet above mean sea level. 83. According to the new topographic information for the Bayport site, significantly more of the Bayport site is at or below elevation 12 feet than is currently shown in the FEIS. 84. According to the Bayport FEIS, only 7% of the Bayport facility is at or below the elevation of 12 feet and in the 100-year floodplain. 85. When the new topographic information is considered,.over 20% of the Bayport facility is below elevation 12 feet and in the 100-year floodplain. 86. The extent of the 100-year floodplain at the Bayport site is critical to the determination of jurisdictional wetlands. 87. The new topographic data can also be used to identify swales, ditches and other watercourses that may connect other wetlands at the Bayport site, outside of the 100-year floodplain, to the adjoining navigable waters, thereby making these wetlands jurisdictional. 13. 88. The USEPA commented on the Bayport DEIS and disagreed with the Galveston District's assertion in its DEIS that most of the wetlands on the Bayport site aze isolated and therefore non jurisdictional. 89. The USEPA believes that most, if not all, of the wetlands located on the Bayport site aze hydrologically connected to waters of the U.S. through swales, and therefore should be jurisdictional. 90. This new topographic information is significant and relevant to the determination of jurisdictional wetlands on the Bayport site. 91. This new topographic data from Harris County invalidates the jurisdictional wetland determination for the Bayport site that is presented in the DEIS and FEIS for the Bayport Project. 92. Wetlands aze important for water quality in Galveston Bay. 93. Wetlands aze important as habitat for fish and wildlife. 94. Wetlands aze a vital part of the coastal ecology. 95. The proposed Bayport site is full of wetlands. 96. The wetlands on this Bayport site are unique and important. 97. ~ The importance of the wetlands at the Bayport site is widely recognized based on comments from federal resource agencies. 98. For example, on April 25, 2002 the U.S. Fish and Wildlife Service stated in correspondence to the Galveston District that "[T]he Service believes that the wetland complex involved [at the Bayport site] is of national significance." 99. The U.S. Fish and Wildlife Service also recommended denial of the proposed Bayport permit. 14. • 100. In the Bayport FEIS, the Galveston District has determined that the Bayport project would destroy over 146 acres of wetlands. 101. According to the Galveston District, only 19.7 acres of these important wetlands are jurisdictional under the Clean Water Act, based in part on the extent of the 100-year floodplain depicted in the FEIS. 102. If the extent of the 100-year floodplain at the Bayport site is based on the new topographic information, over 40 acres of these important wetlands would be jurisdictional under the Clean Water Act. 103. If other hydrologic connections exist, most if not all of the over 146 acres of wetlands at the Bayport site are jurisdictional. 104. The Bayport Project's proposed compensatory mitigation plan indicates that only 66 acres of new wetlands would be constructed to mitigate for the loss of over. 146 acres of total wetlands, resulting in a net loss of over 80 acres of these unique and important wetlands. 105. We do not have many wetlands left along the west shoreline of Galveston Bay. 106. Every acre is important. (5). USEPA's NEW STUDY ON AIR QUALITY IMPACTS FROM DIESEL CARCINOGENS 107. As many as seven diesel-powered container ships and three diesel-powered cruise ships could be docked at the proposed Bayport facility at any time. 108. Over 4,500 diesel-powered trucks will enter and leave the proposed Bayport facility each day. 109. At least two trains between 5,000 and 7,000 feet long and having two diesel- powered locomotives for each train will enter and leave the proposed Bayport facility each day. 15. 110. Diesel-powered cranes and container movers will be used throughout the proposed Bayport facility. 111. The Bayport DEIS failed to address the health effects of diesel emissions associated with the proposed Bayport Project operations. 112. In May, 2002, prior to the issuance of the FEIS, the USEPA issued its Health Assessment Document of Diesel Exhaust. 113. In this study, USEPA determined that long-term exposure to diesel exhaust is likely to pose a lung cancer hazard, as well as other types of lung damage, to humans. 114. Over 5,000 people live within one mile of the proposed Bayport facility. 115. Although this USEPA Health Assessment document was delivered to the Corps of Engineers in 2002 by GBCPA, the Galveston District failed to consider this document or include an analysis of the increase in cancer cases that would be caused in the adjacent population by the operation of diesel sources at the proposed Bayport facility in a Supplemental DEIS. (6). NEW AIR QUALITY IMPACTS FROM FINE PARTICULATE MATTER 116. PM2.5 is particulate matter air pollution 2.5 microns and smaller in size. 117. The U.S. Environmental Protection Agency has adopted a National Ambient Air Quality Standard (NAAQS) for PMT, including both a 24-hour standard (65 micrograms per cubic meter) and an annual standard (15 micrograms per cubic meter). 118. PM2.s will be emitted from construction activities at the proposed Bayport site and from the operation of diesel equipment at the proposed Bayport site. 119. Although comments regarding PMZ.S had been submitted at the scoping meeting by some of the plaintiff organizations, the Bayport DEIS did not analyze the emission of PMzs 16. • • from the proposed Bayport facility construction or operation and did not determine whether or not the PM2.5 standard would be violated. 120. As a result of the comments to the Bayport DEIS, the Galveston District included an analysis of PM2.5 (fine particle) air pollution impacts that was released to the public for the first time when the Bayport FEIS was released on May 16, 2003. 121. In the Executive Summary of the Bayport FEIS, the Galveston District for the first time states that, in the year 2010, the 24-hour national ambient air quality standard ("NAAQS") for PM2.s will be violated. 122. PM2.5 is composed of very small particles that are inhaled deep into human lungs. 123. The scientific literature contains recent articles linking PM2.5 to mortality as well as to sickness and hospital admissions. 124. PMZ.s can kill you - it is a truly dangerous pollutant. 125. Over 5,000 people live within a mile of the proposed Bayport site. 126. Well over 50,000 people live within three miles of the Bayport site. 127. After five years of evaluating this proposed Bayport Project, people living near this Bayport location have now been told, for the first time on May 16, 2003, by the Galveston District, that Federal air quality standards for this dangerous pollutant will be violated by the Bayport Project. 128. This is not how the NEPA process is supposed to work. ('~. NEW NOISE IMPACTS TO RESIDENTIAL COMMUNITIES 129. Comments concerning the inadequate analysis of significant noise impacts to adjacent residential subdivisions were submitted following the Bayport DEIS release. 17. • • 130. The Bayport FEIS now presents a new analysis of the noise impacts of the proposed Bayport Project on adjacent neighborhoods. 131. The new analysis reveals significant noise impacts will occur to nearby residential neighborhoods from the Bayport Project as proposed by PHA. 132. The Bayport FEIS states that sound levels may increase in the El Jardin subdivision by over 5 dBA from 10 p.m. to 7 a.m., and in other nearby areas by over 10 dBA during that same time. 133. According to the USEPA, noise increases by more than 10 dBA are potentially startling or sleep disturbing. 134. The City of Pasadena municipal code, which applies to El Jardin, prohibits an instantaneous sound level increase at a residential property greater than 5 dBA from 10 p.m. to 7 a.m.. 135. The Bayport FEIS states that the City of Pasadena noise ordinance will be violated by the Bayport Project as proposed by PHA unless the port is closed from 10 p.m. to 7 a.m. 136. The Bayport FEIS also concludes that residential property values will decline because of these significant noise impacts. 137. For the first time, after five years of controversy, the Galveston District now admits that the Bayport facility will create major noise impacts on adjacent neighborhoods. 138. There has been no public hearing or discussion about this significant new noise impact. 18. • (8). New Vibration Impacts to Nearby Residences 139. Noise is generally defined as loud, unpleasant, unexpected, or undesired sound that disrupts or interferes with normal human activities. 140. Noise-induced vibration can occasionally be caused by ship maneuvering. 141. The City of Pasadena Municipal Code prohibits any vibration that can be detected without the aid of instruments at any point within a residential building. 142. The Bayport DEIS failed to address the potential impacts to nearby residential communities due to vibrations caused by construction and operation of the Bayport Project. 143. The Bayport FEIS now includes a new section containing a discussion and analysis of vibration impacts. 144. The Bayport FEIS now states that ship maneuvering may occasionally cause noise-induced vibration at residential structures up to 4,600 feet from the Bayport Ship Channel, the effects of which would be perceived as window rattling or wall vibration. 145. There are over 5,000 people living within one mile of the proposed Bayport facility. 146. The Bayport FEIS now concludes that this noise-induced vibration impact caused by the operations of the proposed Bayport Project is long-term and considered potentially significant depending on the design, condition and orientation of each residential structure. 147. Residences located in Shady Oaks and Bay Colony subdivisions to the north, the EI Jardin and Surf Oaks subdivisions to the south, and the subdivisions of the City of Taylor Lake Village to the west are all within the range of this potentially significant noise-induced vibration impact. 19. • • 148. Prior to the release of the FEIS these residents had been given not a clue that a significant vibrations impact would occur in their neighborhood. (9). New Information on Post-Panamax Vessels Necessitates Future Deepening of the Bayport and Houston Ship Channels 149. GBCPA and other plaintiffs have been concerned since the inception of the Bayport Project about whether the Houston Ship Channel and the Bayport Channel would need to be deepened sometime in the future to accommodate the larger container ships called post- Panamax vessels that are now used in maritime commerce. 150. The Bayport channel is currently dredged to 40 feet of depth 151. The Houston Ship Channel is now being dredged to 45 feet. 152. The initial public notice describing the proposed Bayport container facility identified that the PHA was seeking permission to construct the docks adjacent to the container wharfs to a depth of 56 feet. 153. In the scoping meeting, concern was raised about the potential deepening of the Houston Ship Channel to 50 feet or greater depths. 154. In the Bayport DEIS, the Corps stated that in order to accommodate existing and projected growth in vessel activity, further deepening/widening of the Houston Ship Channel and its connecting channels would likely be necessary. (DEIS, p.4-15). 155. In the Bayport DEIS in the section entitled "Issues Raised During the Scoping Process", the Corps identified key topic azeas that have been addressed in the DEIS, including "the impacts of the proposed dredging on marine life in Galveston Bay, including the impacts of future deepening of the Houston Ship Channel and Bayport channel to at least 50 feet". (DEIS, p. 5-4). 20. • 156. The Bayport DEIS does not include any evaluation or analysis of impacts from the future deepening of the Houston Ship Channel or Bayport Channel to at least 50 feet. 157. In the Bayport FEIS, the Corps again stated that in order to accommodate existing and projected growth in vessel activity, further deepening/widening of the Houston Ship Channel and its connecting channels would likely be necessary. (FEIS, p. 4-19) 158. In the Bayport FEIS in the section entitled "Issues Raised During the Scoping Process", the Corps again identified key topic areas that have been addressed in the FEIS, including "the impacts of the proposed dredging on marine life in Galveston Bay, including the impacts of future deepening of the Houston Ship Channel and Bayport Channel to at least 50 feet." (FEIS, p. 6-3). 159. The Bayport FEIS also does not include any evaluation or analysis of impacts from the future deepening of the Houston Ship Channel and Bayport Channel to at least 50 feet. 160. In the FEIS in the response to comments, the Corps states that it decided to exclude consideration of a 50-foot channel based upon the overriding fact that such a project has not been authorized. (FEIS, p. 453, Response to Comment 35-2). 161. In the FEIS in the response to comments, the Corps further states that in a regulatory EIS, the Corps only reviews the project as proposed by the applicant and the PHA has not proposed to widen or deepen the Houston Ship Channel or the Bayport channel. (p. 10, response to comment 1-47). 162. The Bayport FEIS now includes a diagram where wharf cranes proposed for construction at the Bayport site aze specifically labeled as being designed to unload post- Panamax vessels. (Figure 5, Appendix 1.1 containing the PHA permit application). 21. • • 163. The Bayport FEIS now states that, when fully loaded, Post-Panamax vessels require channel depths between 45 to 53 feet. 164. This new information regarding the required channel depths for fully loaded Post- Panamax vessels explains the necessity for the future widening and deepening of the Houston Ship Channel and its connecting channels to at least 50 feet. 165. The Corps has continued to state that deepening of the Houston Ship Channel and its connecting channels would likely be necessary in the future. 166. The permit application and its various revisions submitted by PHA continue to request permission to construct the docks at the container berths to accommodate. a draft of 56 feet. 167. If the public invests $1.2 billion in Bayport through bonds issued by PHA, it is reasonable to expect that PHA will soon argue that the deeper ship channels are needed to fully accommodate fully loaded post-Panamax vessels in order to be competitive - to protect our $1.2 billion investment. 168. A deeper Bayport channel means additional dredging and altered circulation and salinity patterns. 169. A deeper Houston Ship Channel to serve Bayport will bring much more salt water from the Gulf of Mexico deep into the Galveston Bay system. 170. An increase in salinity is a serious threat to the ecological health and integrity of the entire Galveston Bay system. 171. The Galveston Bay system is productive because it is an estuary, an area where salt and fresh water come together. 172. Salinity is the enemy of the oyster reefs. 22. 173. Salinity is the enemy of the juvenile fish and shellfish that come to the Galveston Bay nursery. 174. It is now clear that the intent of the Bayport facility is to serve Post-Panamax vessels, which, when fully loaded, are larger than can be accommodated at the current time by either the Bayport or Houston Ship Channels, yet the impacts from the deepening of the channels have never been analyzed in an environmental full disclosure document. 175. Galveston Bay has survived some serious impacts. 176. . If we do not have full disclosure and public discourse about the long-term impact of deeper container ships being berthed at Bayport, Galveston Bay may not survive Bayport. (10). SUMM~-RY 177. The opposition to Bayport is a fight over truth and full and fair treatment of the impacted public by the regulatory agency. 178. Shoal Point is already permitted and is about to be constructed. 179. Shoal Point will service the shipping needs for containers in the Galveston Bay area. 180. Shoal Point will provide jobs and economic development for the region. 181. The permitting of Shoal Point is not mentioned in the Bayport FEIS. 182. The public is being misled about the status of container terminals in Galveston Bay. 183. Other new information is also not discussed in either the Bayport DEIS or FEIS. 184. ~ The public has a right to be told the truth about the proposed Bayport facility and has a right to a meaningful opportunity to review this information and to comment upon it. 23. 185. Col. Waterworth has refused all requests to prepare a Supplemental Draft Environmental Impact Statement (SDEIS) as required under the rules of the Council on Environmental Quality. 186. The public was given thirty (30) days to comment upon the FEIS, and has been granted an extension of an additional thirty (30) days. 187. The Port of Houston Authority has already advertised for proposals to initiate construction of the Bayport Project, including a clearing contract (advertised February, 2003), wharf construction and dredging contract (advertised February, 2003), a container yard contract (advertised April, 2003), and a Bayport substation (advertised April, 2003), with contract ranges totaling from $82,142,400.00 to $114,409,000.00. VI. CAUSES OF ACTION A. CAUSE OF ACTION NO.1 -SUPPLEMENTAL DRAFT EIS REQUIRED UNDER NEPA DUE TO SIGNIFICANT NEW CIRCUMSTANCES AND/OR INFORMATION 188. Under 40 CFR § 1502.9(c)(1)(ii), asupplement to a draft or final EIS shall be prepared when there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 189. Under the regulations of the Council on Environmental Quality, a supplemental draft of appropriate sections shall also be prepared and circulated if the Draft EIS was so inadequate as to preclude meaningful analysis. (40 CFR § 1502.9(a)). 190. Plaintiffs allege that significant new circumstances and new information relevant to environmental concerns and bearing on the proposed action or its impacts have arisen since release of the DEIS regarding the proposed Bayport Project that require the completion of a SDEIS. 24. 191. Plaintiffs allege that the analysis of impacts in the Draft EIS was so inadequate as to preclude meaningful analysis, requiring a supplemental draft of appropriate sections. 192. The issuance of the Shoal Point permit by the Galveston District for a container terminal similar to the proposed Bayport Project represents a significant new circumstance and significant new information that was known to the Galveston District, yet not evaluated in the Bayport FEIS. 193. Neither the Draft EIS nor the Final EIS presented an alternative analysis wherein two permits were proposed to be issued by the Galveston District for new container ports at different locations on Galveston Bay. 194. Numerous comments have been filed by Plaintiffs and others challenging the presentation of alternatives in the DEIS. 195. The conclusion by the Galveston District that the cruise and container terminals are not functionally dependent upon each other is significant new information relevant to environmental concerns and bearing on the proposed action or its impacts, since there is no analysis of alternative sites in the Bayport DEIS or FEIS where the cruise terminal is located at a different site, other than Bayport, from the container terminal (e.g. cruise terminal at Galveston, container terminal at Shoal Point or Bayport). 196. GBCPA submitted comments that included an expert report concluding that cruise and container terminals did not need to be co-located. 197. Hams County's recently released study of the feasibility of developing Spilmans Island as a container facility represents significant information relevant to environmental concerns and bearing on the proposed action or its impacts because it makes Spilmans Island more attractive as an alternative site to the proposed Bayport facility. 25. • • 198. The new topographic information from Hams County is significant information relevant to environmental concerns and bearing on the proposed action or its impacts because it will increase the extent of jurisdictional wetlands and will increase the mitigation requirements under NEPA and the §404 permit program. 199. USEPA's issuance of a guidance document regarding the classification of diesel emissions as carcinogenic represents significant new information relevant to the environmental impact of the proposed Bayport facility. 200. Although this diesel study was submitted to the Corps in December, 2002, this information was ignored in the FEIS. 201. The new PM2.5 analysis contained in the Bayport FEIS, showing that the 24-hour NAAQS for PM2.5 will be violated in 2010, is significant new information relevant to the environmental impact of the proposed Bayport facility. 202. New information regarding significant noise and vibration impacts to the residential communities surrounding the.Bayport site presented in the Bayport FEIS is significant and relevant to the environmental impact of the proposed Bayport facility and was never presented in the DEIS. 203. Information about the channel depths required by Post-Panamax vesssels and wharf design is significant and relevant to the necessity for the future deepening of the Houston Ship Channel and Bayport Channel. 204. The DEIS stated that the marine impacts of widening and deepening the Houston Ship Channel to at least 50 feet would be presented and it was not. 205. Each of the above-mentioned issues represents significant changed conditions or new information relevant to environmental concerns and bearing on the proposed action and its 26. • • impacts, and the FEIS must be re-issued as a Supplemental Draft EIS that includes full and fair consideration of this information. 206. The Draft EIS failed to provide sufficient detail about several of these issues and precluded meaningful analysis. 207. A number of comments were filed requesting the preparation of a Supplemental Draft EIS prior to the release of the FEIS on May 16, 2003. 208. The release of the FEIS represented final agency action regarding the request for a Supplemental Draft EIS. 209. All of the above-mentioned issues are also relevant to the analysis of reasonable alternatives under NEPA and practicable alternatives under the § 404(b)(1) guidelines. 210. It is a violation of NEPA to fail to give the public a meaningful opportunity to comment at a meaningful time. 211. It is arbitrary, capricious and otherwise not in accordance with the law in violation of the APA to issue a DEIS or a FEIS that does not include information known to the agency and that does not present meaningful alternatives and meaningful analysis upon which the public may. comment. 212. It is azbitrary, capricious and otherwise not in accordance with the law in violation of the APA for the Galveston District to base a decision regarding the issuance of a permit for the PHA's proposed Bayport Project on the FEIS in light of the significant new information discussed above. 213. It is arbitrary, capricious and otherwise not in accordance with the law in violation of the APA for the Galveston District of the Corps to determine not to issue a Supplemental Draft EIS. 27. • B. CAUSE OF ACTION NO. 2: ILLEGAL RULE-MAKING UNDER THE APA BY THE GALVESTON DISTRICT OF THE U.S. ARMY CORPS OF ENGINEERS REGARDING 1YiE EXTENT OF JURISDICTIONAL WETLANDS UNDER §4O4 OF THE CLEAN WATER ACT 214. On information and belief, plaintiffs assert that there is a significantly greater acreage of jurisdictional wetlands on the Bayport site than has been identified by the Galveston District. 215. Plaintiffs allege that the Galveston District has adopted an illegal rule not promulgated under the APA that prevents certain types of wetlands from being classified as jurisdictional, thereby artificially limiting the acres of wetlands subject to §404 permitting under the Clean Water Act. 216. On January 9, 2001 the United States Supreme Court issued its ruling in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). 217. This ruling altered the jurisdictional reach .of the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act. 218. At its core, the SWANCC decision prevents the Corps from asserting jurisdiction over isolated wetlands on the basis of the movement of migratory waterfowl. 219. In response to the SWANCC decision, the Corps in Washington, D.C. on January 15, 2003 published its Advance Notice of Proposed Rulemaking to address these issues. 220. However, on February 13, 2001, the Galveston District unilaterally issued its own written Policy No. 01-001 regarding wetlands entitled "Subject of Adjacentllsolated Criteria," which was addressed to all regulatory personnel with the Galveston District. 221. This policy states: 28. • "wetlands aze waters that are located within a floodplain or hydrologically interrelated during flood .events, which occur during a natural cycle within riverine systems and aze driven largely by rainfall and not water of a tidal origin. However, it should be noted that sheet flow over land outside a floodplain is not considered a sufficient hydrologic connection... " 222. This policy reveals the Galveston District's unique criteria whereby overland sheet flow of storm water into waters of the United States through wetlands is not a sufficient hydrologic connection between wetlands and navigable waters to confer federal jurisdiction over such wetlands. 223. By issuing this written, conclusory "policy," the Galveston District has engaged in illegal rule making in violation of the APA. 224. The APA requires agencies to undergo formal notice and comment procedure when undergoing rulemaking. 5 U.S.C. § 553. 225. These requirements allow the public an opportunity to comment on rules, which may affect their interests. 226. Policies and guidance, which have the effect of law, should be considered formal rules and follow proper notice and comment requirements. 227. A policy is a rule when it is legislative or substantive in nature. 228. The Galveston District's Policy No. 01-001 is a rule because it is legislative or substantive in nature. 229. No notice of this rule was issued and no opportunity to comment was ever provided to the public. 230. If the jurisdictional wetlands on the Bayport site were to include all of the additional wetlands connected by overland sheet flow to waters of the United States, 29. • • substantially more wetland acreage would be under the jurisdiction of the Corps, thus requiring more mitigation than currently proposed. 231. In the Bayport FEIS, the Galveston District found only 19.7 acres of jurisdictional wetlands that would be impacted on the proposed Bayport site, with the remaining 126.7 acres of wetlands being considered non jurisdictional. 232. The Galveston District has determined that the majority of the wetlands within the Bayport Project location are non jurisdictional because their only surface water connection to navigable waters is by overland sheet flow. 233. Upon information and belief, the Galveston District is the only district in the United States that does not consider overland flow as sufficient hydrologic connection in determining adjacent/jurisdictional wetlands. 234. Plaintiffs are awaze that the U.S. Army Corps of Engineers for the Seattle District considers overland flow to be a sufficient hydrologic connection to establish federal jurisdiction over adjacent wetlands to navigable waters. 235. On information and belief, plaintiffs allege that the Fort Worth District and the New Orleans District each use overland flow as sufficient criteria for determining federal jurisdiction. 236. If the Galveston District's illegal rule pertaining to overland sheet flow were discarded, the majority of the wetlands at the proposed Bayport Project location would be considered to be waters of the United States and classified as jurisdictional under the Clean Water Act. 30. C~ J 237. Plaintiffs allege that the Galveston District violated the prohibition against rule- making by failing to follow the procedure set out in 5 U.S.C. § 553 when they issued Policy No. 01-001. C. CAUSE OF ACTION NO. 3: DECLARATION THAT THE DETERMINATION OF JURISDICTIONAL WETLANDS AT THE BAYPORT SITE IS INVALID AND MUST BE RE-EXAMINED 238. Plaintiffs allege that the Corps of Engineers was in error when it determined that the full extent of jurisdictional wetlands subject to regulation as navigable waters under §404 of the Clean Water Act on the Bayport site was 19.7 acres. 239. Plaintiffs allege that a greater acreage of wetlands would be considered jurisdictional due to their inclusion within the elevation 12 feet flood zone if more accurate topographic information available to the Galveston District from Hams County and FEMA had been incorporated into the wetland jurisdictional analysis (see paragraphs 75-84, supra). 240. Plaintiffs allege that a greater acreage of wetlands would be considered jurisdictional as per the comment submitted by the U.S. Environmental Protection Agency (see paragraphs 88-89, supra) if the new topographic information available to the Galveston District from Harris County and FEMA had been utilized by the Galveston District to determine 'the existence of ditches and micro-depressions connecting the bulk of the wetlands on the Bayport site with either Pine Gully, Galveston Bay or the Bayport Deepwater channel, all of which are navigable waters. 241. Plaintiffs allege that overland flow into and through wetlands that enters navigable waters provides a sufficient nexus between the purposes of the Clean Water Act and the wetlands as to make those wetlands jurisdictional navigable waters subject to the permitting requirements of § 404 of the Clean Water Act. 31. C~ r: 242. Plaintiffs request Declaratory Relief whereby the Court declares that there is sufficient nexus between these wetlands and the purposes of the Clean Water Act as to make the significantly more wetland acreage on the Bayport site jurisdictional navigable waters than has been recognized to date by the Corps. 243. Plaintiffs request that the Court remand this issue to the Corps to reconsider the issue of the acreage of jurisdictional wetlands on the Bayport property as well as requiring that the Corps and USEPA work together to jointly establish the jurisdiction of the Corps over the wetlands at the Bayport site. 244. Plaintiffs allege that the Corps has exhibited arbitrary and capricious action by failing to re-examine the extent of the wetlands at the Bayport site in light of new topographic information and/or in light of the USEPA claim that micro-channels provide sufficient connection to render much more acreage jurisdictional than has been determined by the Corps. VII. STANDING 245. The City of Shoreacres is located between State Highways 146 and 501 at the northwestern edge of Galveston Bay. Shoreacres is immediately north of the proposed Bayport terminal. Shoreacres is predominantly residential with a population of approximately 1,488. Shoreacres' residents will be directly. and severely impacted by the proposed Bayport Project. These residents will be impacted by the additional noise, lights, traffic and air pollution. If the proposed Bayport Project is built, their property values will decline. Shoreacres' zoning ordinance reflects the community's values for a bayside, residential community, which is at odds with the proposed Bayport Project 246. The City of Taylor Lake Village is on Taylor Lake, west of the proposed Bayport Project and has a population of approximately 3,694. The proposed Bayport Project will 32. adversely affect Taylor Lake Village's residents. Air pollution as well as the additional noise pollution and increased traffic will substantially interfere with the use and enjoyment of their property. The property values in Taylor Lake Village will also decline if the proposed Bayport Project is built. 247. GBPCA is a non-profit organization whose purpose is to restore and enhance Galveston Bay and its estuaries. In this regard, GBPCA monitors activities and proposed activities, which impact the bay shore environment ~ and human community of Galveston Bay, with the intent to modify and/or prevent activities that have an adverse environmental impact. GBPCA's members use Galveston Bay and its estuarine systems-- including the area affected by the actions complained of in this lawsuit-- for bird watching, boating, and general enjoyment of the scenic environment. Mary Beth Maher is a member of GBCPA and lives in Shoreacres. Ms. Maher enjoys boating on Galveston Bay and is an active volunteer with the new wetlands park in Shoreacres. Both of these activities will be negatively impacted by the proposed Bayport facility. 248. GHASP was formed in 1988 to protect the health of residents of the Houston- Galveston area from air pollution, including ozone. GHASP's board of directors, members, consultants, outreach workers, and volunteers are primarily from the Houston-Galveston region and will be affected by the elevated levels of ozone in the Houston-Galveston non-attainment area caused by the proposed Bayport Project, as well as by other pollutants from the project such as fine particulate matter. John Wilson is a member of GHASP. Mr. Wilson enjoys sailing on Galveston Bay, which will be negatively impacted by the proposed Bayport facility. 249. TCONR was formed in 1971, and has approximately 1,000 members. TCONR's purpose includes educating the public by collecting, studying and disseminating information on 33. environmental problems; protecting native ecosystems; promoting efficient use of natural resources; preserving native forests and other Texas habitat; and influencing public policies and activities that impact the environment. The organization and each of its members has a strong interest in preserving the integrity of the environment in the Bayport area. 250. HAS is a chapter of the National Audubon Society, and subscribes to its mission statement: Houston Audubon Society promotes the conservation and appreciation of birds and wildlife habitat. The Bayport Project's proposed location includes extensive wetlands used by local and migratory birds. HAS has a prime interest in preserving these wetlands and the birds that use this area. The Great Texas Birding Trail follows Todville Road alongside the proposed terminal. HAS sponsors many outdoor activities for the community such as bird watching classes and fieldtrips. HAS members participate in these activities, and will be negatively impacted by the proposed Bayport facility. 251. PISCES is an organization made up of commercial fishermen that was formed in the 1970's. PISCES has an economic interest in the proposed Bayport Project. Their livelihood depends on the natural resources that inhabit these waters. The additional dredging that is reasonably foreseeable for the Bayport and Houston Ship Channels will threaten the oysters and shrimp upon which PISCES's members depend. Richard Moore is a member of PISCES whose livelihood will be negatively impacted by the proposed Bayport facility. 252. GRN is an organization comprised of members dedicated to the protection and restoration of the resources of the Gulf of Mexico Region. One of GRN's priorities is to protect the wetlands located in the Gulf states (Texas, Louisiana, Mississippi, Alabama, and Florida). Forty different organizations and forty-five individuals are members of GRN who participate in 34. • • activities designed to further its goals. These members span the entire coast of the Gulf, from Texas to Florida. GRN sponsors many events, workshops, and reports that focus on the condition of the natural resources of the Gulf. The proposed Bayport Project will severely impact wetland resources of the Gulf region. GBCPA is a member organization of GRN. 253. HYC is the oldest yacht club in Texas. Its mission is to advance the sport of yachting. HYC organizes regattas and promotes Houston nationally for yacht racing and recreational boating center. HYC members currently enjoy sailing in Galveston Bay; however, the addition of the proposed Bayport Project will substantially interfere with the HYC's mission and purpose. The additional water traffic, lights, noise, and air pollution will severely impact Galveston Bay as a sailing and recreational venue. Charles Buchner is a member of the Houston Yacht Club and was its commodore during 2001-2002. Mr. Buchner is active in sailing and racing on Galveston Bay, which will be negatively impacted by the proposed Bayport facility. 254. GBF is a nonprofit organization whose mission is to preserve, protect and enhance the natural resources of the Galveston Bay estuarine system and its tributaries for present users and for posterity. GBF's members participate in and sponsor recreational activities, educational programs, and research focused on the natural marine environment of Galveston Bay. The proposed Bayport Project will destroy much of the natural environment, which serves as a classroom and recreational location for Galveston Bay Foundation events. Ellyn Roof is a member of GBF and lives in Taylor Lake Village, Texas. Ms. Roof sails on Galveston Bay and has skippered the GBF "Bay Ranger" on education trips on Galveston Bay. These activities will be negatively impacted by the proposed Bayport facility. Additionally, Ms. Roofs property in Taylor Lake Village will be negatively impacted by air pollution, noise pollution and increased traffic and the property value of the home is expected to decline if this facility is constructed. 35. • 255. Each of the negative impacts from the proposed Bayport facility on the plaintiffs or. the plaintiffs' properties would be redressed by a decision of this Court favorable to the Plaintiffs. VIII. RELIEF REQUESTED 256. Plaintiffs request that an injunction be issued prohibiting the Defendants from issuing a permit for the Bayport Project until a Supplemental Draft EIS is prepazed that incorporates the changed conditions and new information previously discussed, the public is allowed to meaningfully comment, and the NEPA process properly followed. 257. Plaintiffs also request that an injunction be issued preventing Defendants from using the Galveston District's Policy No. 01-001 that. overland sheet flow is not a sufficient hydrologic connection, unless and until the rule-making procedures of the APA have been followed. 258. Plaintiffs also request that this Court declare that overland flow of surface waters that connect wetlands with navigable waters is sufficient to make these wetlands jurisdictional water of the United States under § 404 of the Clean Water Act. 259. Finally, Plaintiffs request that this Court remand the delineation of jurisdictional wetlands to the Corps for further evaluation and direct that the extent of jurisdictional wetlands at the proposed Bayport Project location be re-examined using the best available topographic information as well as other factors deemed appropriate by the Court. 36. IX. PRAYER WHEREFORE, PRENIISES CONSIDERED, Plaintiffs request that upon a final trial hereof, that a declaratory judgment and permanent injunction be issued as requested above, and for other and further relief to which Plaintiffs may show themselves justly entitled, .including attorneys fees. OF COUNSEL: BLACKBURN CARTER, P.C. James B. Blackburn, Jr. TBA No. 02388500 Mary W. Carter TBA No. 03926300 Richard R. Morrison, IV TBA No. 00795027 2900 Weslayan, Suite 400 Houston, Texas 77027 713/524-1012 713/524-5165 (fax) David A. Kahne Texas Bar No. 00790129 Southern District of Texas Bar No. 17432 LAW OFFICE OF DAVID KAHNE P.O. Box 66386 Houston, Texas 77266 (713) 652-3966 (713) 652-5773 (facsimile) Respectfully submitted, MALONEY, MARTIN & MITCHELL, L.L.P. by: MICHAEL J. MALONEY TBA No. 12883550 Southern District of Texas Bar No. 826 3700 Two Houston Center 909 Fannin Street Houston, Texas 77010 (713)759-1600 (713) 759-6930 (facsimile) Counsel for Galveston Bay Conservation and Preservation Association 37. BLACKBURN CARTER, P.C. by: OF COUNSEL: BLACKBURN CARTER, P.C. Mary W. Carter 'TBA No. 03926300 Richard R. Morrison, IV TBA No. 00795027 2900 Weslayan, Suite 400 Houston, Texas 77027 713/524-1012 713/524-5165 (fax) LOWERRE & KELLY ATTORNEYS AT LAW Richard Lowerre TBA No. 12632900 P.O. Box 1167 Austin, Texas 78767-1167 (512) 482-9345 (512) 482-9346 (facsimile) JAMES B. BLACKBURN, JR. Attorney. in charge TBA No. 02388500 Southern District of Texas Bar No. 7416 2900 Weslayan, Suite 400 Houston, Texas 77027 713/524-1012 713/524-5165 (fax) Counsel for The City of Taylor Lake Village, The City of Shoreacres, Houston Audubon Society (HAS), Gulf Restoration Network (GRN), Galveston Houston Association for Smog Prevention (GRASP) and Texas Committee on Natural Resources (T'CONR) 38. • • MALONEY, MARTIN & MITCHELL, L.L.P. by: MIKE MARTIN TBA No. 13094400 Southern District of Texas Bar No. 8824 3700 Two Houston Center 909' Fannin Street Houston, Texas 77010 (713) 759-1600 (713) 759-6930 (facsimile) Counsel for Galveston Bay Foundation (GBF) 39. MCFATRIDGE, BAKER &DEEN, P.C. by: by: THOMAS O. DEEN Attorney in charge TBA No. 05713780 Southern District of Texas Baz No. 20241 3900 Essex Lane, Suite 730 Houston, Texas 77027 (713) 629-7966 (713) 629-7960 (facsimile). JAMES T. LISTON TBA No. 12415325 1600 Smith, Suite 4545 Houston, Texas 77002 (713) 653-5640 (713) 653-5656 (facsimile) Counsel for Houston Yacht Club 40. • • LAW OFFICE OF RICHARD MORRISON by: RICHARD R. MORRISON, III TBA No. 14528000 Southern District of Texas Bar No. 4648 1100 Hwy. 146, Suite A Texas First Bank Bldg. Kemah, Texas 77565 281-535-0455 281-535-0458 (fax) OF COUNSEL: BLACKBURN CARTER, P.C. James B. Blackburn, Jr. TBA No: 02388500 Mary W. Carter TBA No. 03926300 Richard R Morrison, IV TBA No. 00795027 2900 Weslayan, Suite 400 Houston, Texas 77027 713/524-1012 713/524-5165 (fax) Counsel for Professionals Involved in Seafood Concerned Enterprises (PISCES) 41. • • IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DMSION THE CITY OF SHOREACRES, ET. AL. § Plaintiffs, § v. § COLONEL LEONARD D. WATERWORTH, § DISTRICT ENGINEER, GALVESTON § DISTRICT - U.S. ARMY CORPS OF § ENGINEERS; ET. AL. § Defendants. § CIVIL ACTION NO ORDER CAME ON FOR CONSIDERATION, Plaintiffs, The City of Shoreacres, et. al. Original Complaint and Application for Declaratory Relief. After consideration of the evidence and pleadings, this Court is of the opinion that this request should be GRANTED; it is therefore ORDERED that the Final Environmental Impact Statement for the Port of Houston' s proposed Bayport facility be reissued by the Galveston District of the U.S. Corps of Engineers as a Supplemental Draft Environmental Impact Statement including full and fair analysis and disclosure of (1) the impact of the issuance of the Shoal Point permit; (2) the consideration of alternative sites for cruise terminal apart from container terminals, including specifically Galveston and Pelican Island locations; (3) the impact of Hams County's recent study on the Spihnans Island alternative; (4) the impact of the loss of land surface at the Bayport site as documented in the new LIDAR study by Harris County and FEMA, including reanalysis of jurisdictional wetlands; (5) the impact of widening and deepening the Houston and Bayport Channels to 50 or more feet of depth; (6) the increase in cancer risk to adjacent population from exposure to diesel emissions; (7) the violation of the PM2S standard; (8) the violation of noise standards; and (9) the violation of vibration standards; is it further 1. • • ORDERED that Policy No. 01-001 of the Galveston District U.S. Army Corps of Engineers is in violation of 5 U.S.C. § 553; it is further ORDERED that the issue of jurisdictional wetlands is remanded to the Galveston District U.S. Army Corps of Engineers for reconsideration in light of new topographic information. Signed on this day of Judge Presiding 2003. 2. • • MEETING HANDOUTS • IP®II~~ ®1~ IAI~L~J~~~~ A~J~I~I®I~II~~Y EXECUTIVE OFFICES: 111 EAST LOOP HOUSTON, TEXAS 77029-4327 MAILING ADDRESS: P.O. BOX 25G2 HOUS'T'ON, TEXAS 77252-25G2 TELEPHONE: (713) C,70-2400 FAX: (713) G70-2429 H.T. KO RNEGAY Executive Director (713) 670-2480 June 26, 2003 The Honorable Chuck Engelken Councilman City of La Porte 604 W. Fairmont Pkwy. I,a Porte, TX 77571 Dear Councilman Engelken: ~~~uSTOry~Gy T ~ A O =i o- - -~ s s y~~sTON,TF~P~ The Port of Houston Authority believes that vigorous public discussions are essential to ensure that all questions and concerns related to the potential design, construction, and operation of the proposed Bayport Container and Cruise Terminal are addressed. The public process is severely undermined, however, by the kind of distorted analyses and misinterpretations that have been perpetuated by members of the Galveston Bay Conservation and Preservation Association (GBCPA). For example,' members of GBCPA have asserted that Spilman Island, an active disposal site for dredge material from the deepening and widening of the Houston Ship Channel, is a feasible alterative to Bayport. Their assertions were based on the results of a new study released May 16 by S&ME, Inc., a South Carolina-based engineering contractor for the Harris County Public Infrastructure Department. While the PHA actively supported the independent analysis performed by S&ME and concurs with its technical accuracy, the results must be understood and interpreted in light of the assumptions on which the analysis is based. The S&ME report assumed six inches of post-construction settlement, and considered a range of loading conditions, some of which are lower than the actual calculated design loads for the terminal paving. Using different and, in our opinion, unacceptable assumptions, the resulting analysis lowered the cost of stabilizing the poor soils at Spilman Island, and ignored the expensive costs to protect and repair pavement, underground utilities when large settlement occurs, and the impact on equipment operations. Local experts familiar with Houston construction requirements agree that the true cost to stabilize soils at Spilman Island is at the high end of the range of the S&ME report - or about $ 210 million more -than at Bayport, which requires no additional stabilization cost. The SBiME report itself recognizes that stabilization of Spilman Island would cost considerably more than the Bayport alternative and also cautions that their estimate in excess of $200 million does not include "other cost issues" such as "pipeline relocations, acquisitions of a new dredge disposal site, parking garage costs, etc. i ~ Members of the GBCPA continue to make incorrect comparisons between the Spilman Island site and the site for the proposed terminal at Shoal Point currently being developed by Texas City. The GBCPA's contrast between the estimated costs of stabilizing Shoal Point ($90,000 per acre, a cost which is only valid for the most stable portion of their site) and the PHA's estimate for Spilman Island ($258,750 per acre) fails to recognize the difference between the composition of the materials placed at each site. Shoal Point soils are composed of harder clays, which have consolidated naturally during years of inactivity. Spilman Island is an active dredge material disposal site, consisting primarily of soft, silt materials dredged from the Houston Ship Channel -material so unstable as to prevent walking on most of the site. The S&ME analysis confirms that the cost to prepare the soil at Spilman Island for construction is at least twice as expensive as Shoal Point. The GBCPA has stated, "building on a dredge spoil would have no impacts on environmentally sensitive wetlands and coastal prairie..." This assertion ignores the fact that the elimination of Spilman Island as an active dredge disposal site requires the development of a replacement site in the same general region of Galveston Bay. Sites in this area are extremely limited, and it is safe to say that such a site would be over 500 acres in size, cost more than $150 million, and result in significant environmental impacts to wetlands and coastal prairies. One member of GBPCA was recently quoted as stating that the S&ME report "adopts conservative assumptions" with regard to cost. In fact, S&ME acknowledges that the average cost for fill stated from their source of cost data appears "unrealistically low", and therefore they adopted a value more in line with anticipated costs. The PHA and local experts believe that the S&ME report underestimated the cost to import and eventually remove hundreds of thousands of truckloads of earth, to be placed up to 18 feet high on Spilman Island to help stabilize the soil. In addition, it appears the S&ME report also didn't consider the cost of purchasing the material or the full cost of its removal. The GBCPA also contends that choosing Spilman Island over Bayport would reduce the PHA's costs for land acquisition and environmental mitigation, while reversing the potential for local property tax reve~~ae losses. In Muth, because the Spilman Island site is smaller, additional offsite acreage would have to be acquired -either by the PHA or by private interests - in order to ensure the terminal could accommodate current and future market demands. The lack of cruise and industrial co-development in the Spilman Island plan would actually reduce revenue to the PHA and increase the need for supplemental public funding. The PHA's design for the Bayport facility includes several mitigation features for environmental impacts. For example, the use of clean fuel and clean engine technology will help reduce air emissions. The PHA has also committed to help fund several local transportation projects in the Bayport area in an effort to increase the safety and efficiency of the local transportation network while reducing congestion and air pollution. A three-mile long buffer zone around the facility will include a landscaped sight and sound berm that will be 20 feet tall. On-site stormwater ponds and passive treatment facilities will intercept sediment from site runoff, and also control oil and grease. Lighting systems designed to use specially designed fixtures will limit nighttime glare and light spillage impacts. The Bayport plan also involves jurisdictional wetland replacement at a ratio of more than three to one to increase the habitats available for fish, waterfowl and other coastal wildlife. Furthermore, the benef cial use of dredged material will create up to 200 acres of inter-tidal marsh. The Port of Houston Authority has drawn on expertise developed in other ports around the world to make the proposed Bayport facility environmentally sound and economically feasible. To that end, we will continue to work to address all public concerns and issues regarding the proposed facility, setting a new standard in the maritime industry for env;•r~nmental stewardship and.community friendliness. The Port Authority wants to be a good neighbor and will work hard to meet that goal. Sincerely, omas o ega , P.E P Executive Director Port of Houston Authority L' SUGGESTED BAYPORT COMMENTS It is EXTREMELY IMPORTANT that everyone writes a comment letter about the Bayport FEIS to the Corps of Engineers, with copies to the EPA, Congressmen Lampson -and Delay, and Harris Co. Commissioner Sylvia Garcia (the addresses are on the back). The deadline is July 16, 2003. 1. The issuance of the Shoal Point permit has not been considered in the FEIS. That. is a huge issue. The analysis of alternatives as presented is false. The need - for the proposed action is false. At the least, the false statements must be . corrected. The Corps issued the Shoal Point permit. They knew that the information in the FEIS was false. We have a right to a full and fair analysis of alternatives. - 2. The container and cruise terminals do not have to be located together. The Corps admits in the FEIS that there is no functional relationship between the two. They do not have to be at the same location. However, the FEIS does not evaluate placing the cruise terminal in Galveston or Pelican Island, for example, and the Port of Houston's container facility at Spilmans Island. The altemative analysis must be redone. 3. Harris County-just released a report on the cost of developing Spilmans Island that concludes that the cost is much lower than indicated by the Port of Houston Authority. This report must be considered in .evaluating whether or not Spilmans is a viable alternative to Bayport. ~ - 4. In December 2002, new topographic information was released for Harris County by Harris County and FEMA as part of a LIDAR study. This data must be used to reanalyze the acreage of jurisdictional wetlands at the Bayport site. The U.S. Fish and Wildlife Service has stated that the wetlands on this site aze unique and of national importance, yet only 19.7 of the 140 acres aze regulated. If the Corps used the new topo data, the full 140 acres would likely be jurisdictional. If the Corps uses this information, then alternative sites will - certainly have less environmental impact and denial of the Bayport permit may be mandated. . 5. In mid-2002, a study was released by EPA, stating that diesel emissions caused cancer. This study was. delivered to the Corps. The Corps has failed to undertake any analysis of the increased risk of cancer associated with the extensive diesel air pollution coming from Bayport. There is no safe exposure level for cazcinogens. There is only varying degrees of risk. The people living near the Bayport site need to be told the truth about this issue: 6. We are just now seeing the results of air quality, noise and vibration studies, all of which show violation of standards, health effects and/or significant disruption of homes. These studies are not complete. 7. We need an analysis of the impact of widening and deepening the Houston and Bayport Ship Channels that is likely to occur if this Bayport permit is issued. The Port of Houston Authority is seeking approval to construct a 56 deep • Galveston Bay Conservation & Preservation Association (GBCPA) BENEFIT BRUNCH It's been more than five years now since we first heard about the Bayport plan amazing! Thanks to everyone for your staying power, without which we might already have a container port in the neighborhood. As it is, we are successfully keeping the project from happening at Bayport Come and celebrate; and hear more about it, and let's stick with itl WHEN: Sunday July 13, 2003 (3 days before close of the FEIS comment period) 11:30 A.M.- 3:30 P.M. WHERE: Natalie O'Neill's Home 420 Kirby Blvd. Taylor Lake village,. TX 77586 WHAT: Sunday Brunch Guest Speaker -Jim Blackburn Guest Musicians - Joanna Gipson Murray Blade COST: S25 a ticket in advance $35 at the door Advance ticket sales -please send your check before July 10, 2003 to: GBCPA P.O.Boz 323 Seabrook, TX 77586 For further information call GBCPA at 281-326-3343 All donations are taz deductible and go to GBCPA, a 501(c)(3)