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Click here for the full text of this decision FACTS:In October 1998, the Port of Houston filed an application with the U.S. Army Corps of Engineers for a permit under 33 U.S.C. 1344 to dredge and fill navigable waters. The port proposed building a terminal adjacent to the Bayport Shipping Channel along the northwestern coast of Galveston Bay that would house seven cargo-ship berths and three cruise-ship berths. Ancillary facilities would also be built along the industrialized area. The port said it would be financing the Bayport project with proceeds from $387 million bond the voters of Harris County approved. Following federal regulations, the corps sought public input before issuing its draft environmental impact statement. It accepted public comment on the draft for nearly a year, then, in May 2003, it issued a final impact statement. Public comment was taken on the final statement, and then, on Dec. 19, 2003, the corps issued an eight-volume record of decision. The permit was issued on Jan. 5, 2004. During this time, the corps was also considering a similar dredge and fill permit application filed in April 2000 by Texas City to build a six-berth cargo terminal at Shoal Point in Galveston county on the southwest shore of the bay. The corps granted this permit on April 23, 2003, one month before the final environmental impact statement on the Bayport project was issued. Three weeks after the permit was issued to the Bayport project, the city of Shoreacres filed suit against the corps seeking rescission of the permit. The city claimed the permit violated the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA). The district court granted summary judgment to the corps in May 2004. HOLDING:Affirmed. The court first considers the city’s CWA claims. One claim is that the corps undercounted the acreage within its wetlands jurisdiction, which corrupted the entire decisional process under the CWA. The court says it doesn’t have to consider the various ways the city demonstrates this supposed miscalculation because the corps issued a statement on a related issue that made clear the corps would have made the same decision regardless of which method of counting wetlands acreage it used. The city’s next argument is that the permit was inappropriate under the CWA because there were “practicable alternatives” to dredging and filling the bay. The court acknowledges that two other areas along the bay � Shoal Point and Pelican Island � were plausible alternatives, but the court finds those areas were not “practicable,” as that test is set forth in federal regulations. First, Shoal Point was not “available” because that area was already the subject of a permit application filed by Texas City. Second, neither Shoal Point nor Pelican Island are logistically feasible since these areas are outside of Harris County, and the Harris county bonds issued to support the project cannot be spent outside of Harris County. Third, locating the ports elsewhere would defeat the stated purpose of the project of expanding Harris County to make it one of the nation’s leading ports. The third complaint raised by the city under the CWA is that after the bay is dredged and filled, and after bigger and bigger ships use the ports, the Houston Ship Channel will get deeper and deeper, which will, in turn, change the salinity of the water and affect various ecosystems. The discharge or fill of material from the Bayport project will not deepen the Houston Ship Channel, the court explains. “Rather, the deepening of the Houston Ship Channel, if it ever occurs, will be the result of a separate project (requiring Congressional approval) undertaken for that specific purpose. It was, therefore, not an abuse of discretion for the Corps to construe the CWA and its regulations as not requiring the Corps to consider any future deepening of the Houston Ship Channel as an adverse environmental consequence of issuing a dredge and fill permit to the Port.” The court next turns to the complaints raised by the city under NEPA, a procedural statute. The city contends that the corps’ no-action alternative, which was part of the final environmental impact statement was flawed because it proceeded under the assumption that no new ship terminals would be built in Galveston Bay. The city argues that this assumption was irrational on its face because the corps, just three weeks earlier on April 23, had granted a permit to Texas City to construct a six-berth terminal at Shoal Point on the southwestern tip of Galveston Bay. The court notes the Corps’ explanation that the Texas City project was considered for its cumulative impact, but not its status as an existing condition that could serve as an alternative. The court finds that while the city may not agree with the Corps’ methodology, the methodology is neither arbitrary nor capricious. Consequently, it is entitled to deference. The issue of the deepened Houston Ship Channel is raised under NEPA, too. Before getting into whether deepening of the channel is too speculative to be considered within the cumulative-impact framework, the court finds some question in whether the channel’s deepening is an issue NEPA requires the Corps to consider at all. The court concludes that even if it were to assume that “deepening the Houston Ship Channel is not per se excluded as a matter of law (merely because requiring Congressional approval) from the sorts of cumulative environmental effects that the Corps ought to account for in its [final environmental impact statement], there was no need to do so in this case because for a number of reasons it is impossible to know whether the channel will ever be deepened.” The corps’ obligation under NEPA to consider cumulative impacts is confined to impacts that are “reasonably foreseeable,” the court says. And an impact is “reasonably foreseeable” if it is “sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision.” Here, the city presents only “platitudes” that the channel will deepen and cause harm to various ecosystems. It does not offer a concrete analysis. While the city’s proposition may be “true, indeed obvious,” the corps did not abuse its discretion in finding the proposition too speculative for consideration. Finally, the court holds that nothing in NEPA implies that the corps could not rationally approve separate permits for two separate projects at Bayport and Shoal Point. OPINION:Garwood, J.; Garwood, Smith and Clement, JJ.

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