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Houston Regional Group - News

Decision on Sierra Club v. U.S. Army Corps of Engineers, by Evelyn L. Merz,

If you had to summarize the point of the Sierra Club v. U.S. Army Corps of Engineers lawsuit, it would be that the Houston Sierra Club believed that the Corps was obligated to truly and adequately consider the cumulative impacts resulting from construction of Segment E of the Grand Parkway. Development of the Katy Prairie and surrounding area following Segment E construction would impact the runoff from the Addicks and Upper Cypress Creek watersheds into the Addicks Reservoir, the safe operation of Addicks Dam, and consequent flooding risks.

When the case was first argued, we were expecting a decision in the spring of 2012. However, Judge Keith Ellison signed a memorandum and order on August 22 with the announcement on August 27. In many ways, the decision was like life - you win some and you lose some.

An important decision in the "win" column is that Judge Ellison decided that the Corps had not adequately considered the cumulative impacts resulting from construction in its preparation of the Environmental Assessment (EA):

"The Court finds that the Corps acted in a manner that was arbitrary and capricious in opining on the effect that Segment E would have on Addicks without considering the cumulative impacts." and "the failure of the Hydrology Branch and the Corps to address future development in assessing the effects on Addicks was arbitrary and capricious. More specifi cally, it was arbitrary for the Corps to recognize future development in one section of the report, but, in another, not acknowledge that analysis and assert that future development is too speculative."

Judge Ellison remanded the EA back to the Corps for revision. In the "disappointing" column, the judge refused to issue an injunction to halt construction during preparation of the revised EA. He did decide that revising the EA was suffi cient and so did not require that a Supplemental Environmental Impact Statement be prepared.

Although the decision allows construction of Segment E of the Grand Parkway to proceed, the mandate to duly consider cumulative impacts resulting from development has been validated by the Court Since a slice of the Corps personnel have already stated that "any additional development from Segment E will eventually end up downstream at Addicks Reservoir just as any other new development", we expect that new permit applications to fi ll wetlands will not be rubber- stamped.

The Sierra Club is deeply indebted to the firm of Blackburn and Carter for the dedication and energy it has expended. Jim Blackburn has prepared his own analysis of the Court decision, which I've appended after this update.

Last updated:  11/20/2011.   Content 1999-2011 by the Sierra Club.