ELR Citation: ELR 20162
No(s). 04-20527 (5th Cir. Aug 8, 2005)

The court upholds the dismissal of a city's Clean Water Act (CWA) and National Environmental Policy Act (NEPA) suit against the U.S. Army Corps of Engineers seeking to rescind a dredge and fill permit issued to a port for the construction of a 10-berth cargo and cruise ship terminal off Galveston Bay, Texas. The Corps did not undercount the acreage within its wetlands jurisdiction, thereby corrupting the entire decisional process under the CWA. In addition, the Corps did not err in failing to consider two other sites as practicable alternatives to the terminal. Nor was it an abuse of discretion for the Corps to construe the CWA and its regulations as not requiring it to consider any future deepening of the Houston Ship Channel as an adverse environmental consequence of issuing the permit. The city's NEPA claims similarly failed. The Corps' no-action alternative was not flawed, and the Corps did not abuse its discretion when it decided that the deepening of the Houston Ship Channel was too speculative to warrant consideration as a cumulative impact of the permit.