Case 2:15-cv-00514 Document 106 Filed in TXSD on 11/15/16 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS (Corpus Christi) No. 2:15-CV-00514 FRIENDS OF LYDIA ANN CHANNEL, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) FEDERAL DEFENDANTS’ SUBMISSION OF EXHIBIT 3 TO MOTION FOR SUMMARY JUDGMENT & MEMORANDUM IN SUPPORT Federal Defendants respectfully submit one additional exhibit (Exhibit 3) to their Motion for Summary Judgment and Supporting Memorandum (ECF 103), filed on November 15, 2016. Exhibit 3 is cited in the supporting memorandum but was inadvertently omitted from the original electronic filing that was submitted this date. Dated: November 15, 2016 Respectfully submitted, JOHN C. CRUDEN, Assistant Attorney General U.S. Department of Justice Environment & Natural Resources Division Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 /s/ Carol Draper CAROL L. DRAPER Attorney-In-Charge Trial Attorney (PA Bar # 39388) Natural Resource Section 601 D Street, NW Washington Dc Telephone: (202) 305-0465 1 Case 2:15-cv-00514 Document 106 Filed in TXSD on 11/15/16 Page 2 of 3 Fax: (202) 305-0506 Email: carol.draper@usdoj.gov S. JAY GOVINDAN, Assistant Chief /s/ John H. Martin JOHN H. MARTIN (CO #32677) 999 18th St., South Terrace, Suite 370 Denver, CO 80202 Phone: (303) 844-1383 Fax: (202) 305-0275 Email: john.h.martin@usdoj.gov FREDERICK H. TURNER Trial Attorney (MD Bar – no numbers assigned) Phone: (202) 305-0641 Fax: (202) 305-0275 Email: Frederick.turner@usdoj.gov ANDREA GELATT Trial Attorney (CA Bar # 262617) Phone: (202) 305-0388 Fax: (202) 305-0275 Email: andrea.gelatt@usdoj.gov LANCE G. DUKE Assistant United States Attorney United States Attorney’s Office Southern District of Texas Corpus Christi, Texas Lance.Duke@usdoj.gov LANCE G. DUKE Assistant United States Attorney United States Attorney’s Office Southern District of Texas Corpus Christi, Texas Lance.Duke@usdoj.gov Attorneys for Defendants 2 Case 2:15-cv-00514 Document 106 Filed in TXSD on 11/15/16 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that today I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of this filing to the attorneys of record. /s/ Carol Draper CAROL L. DRAPER 3 Case 2:15-cv-00514 Document 106-1 Filed in TXSD on 11/15/16 Page 1 of 4                           EXHIBIT 3 Case Document 106-1 Filed in TXSD on 11/15/16 Page 2 of 4 STATEMENT or: FINDINGS FOR REVOCATION or: DEPARTMENTOF THE ARMY swegzoM?omeo 1. Permittee: Lydia Ann Channel Moorings, LLC. PO. Box 60267 Corpus Chjrieti, Texas 78486. 2. Authority: This project was authorized pursuant to Section 1013f the Rivers and - Harbors Act of.1.8_99 under the alternative permit procedures in 33 CFR 3. Protect Description and Location: The US. Army Come-of Engineers, Galveston Districtmotpe)? issued" Lydia Ann Channel'MoOrihg', (LAC) a'Letter of Permission (LOP) on 15 January 2015 to mooring dolphins composed bf concrete ?lled 24-ihoh?eteel pipe'with rubber tires-fot'thepurpoee of-prdviding temporary-- mooring for barges and tugs along San Jose-island.- Each moorth Structure Was to be placed 100 feetapart in waterdepths no than .12. feet of depth.- .The project site is 7 located off .the-eastbankof. San LydteQAnn Channel?, a i component of the Gulf- lhtreooastal Waterway (Gt-Wt whioh lee federally-authorized shallow draft'rtaVigati'on project. The Lydia Arm Channel is in State Tracts 294 and 305 on land owned and managed by the State of Texas pursuant to the-Submerged Lands Act.- 4. Baokorouhdand InitialPermit; submitted a Department: ofrthe Pie-trait - application or: June 20:14- requeetihg authorization to eons-trod 82- meeting dolphins to provide temporary meeting for barges ahd tugs inside Lydia Ann Channel as an alternative to barges that are presently grounding t-hemeeNee or: the shore of Sefh? Joe-e island. - The Corps developedits-eoope of analysiefor the public: interest action by evaluating stated purpose and need for the project: to provide temporary mooring -.etructutee for "barge's'that-ate aground ?7 on San Jose island. 'lri'tj-ari'ivihg'at ouroonclusion; the-Corps ConSidered'the"impacts to . navigation-but the (torpedoes not regalate?the activities-of vesselewhieh?navigate-in federal waters unlese'they constitute 'an"?obetruotioh? under 33 403; vessels are regulated by the Department of Transportation. and: the United States-Coaet?uard (USCG). Atgthe time of this evalpation, the'Corps barges in this locattohtto :oonstitute an roostruotioh to nayigatioh; ._thetefore,fitheLCorps, interpreted .325, Appendix.__B, paragraph} Tto'l'iet'it iteecope sofasnalysie to the mooring dolp'hin'struoturee; . . a . . Because the barges are net censide'red to the Corps? Section 10 regulatory authority, theCorpedid notoeneider the'number'of and types-of - LACM.000795 Case Document 106-1 Filed in TXSD on 11/15/16 Page 3 of 4 barges, their contents, or the manner they were being operated as alt of those considerations. are outside the developed scope of snaiysis. in addition to the structures, the Corps determined that the scope of analysis for the ?work? proposed by LAC was the actual physical placement of the 82 pilings and not the overall operation of the project or its probable effects. When viewed through-this lens, the structures end work were determined to be minor,_wouldnot have significant individual or cumulatiVe impacts on environmentalvaloes, and should: have encountered no appreciable opposition, which allowed the use of abbreviated permitting under the LOP process prescribed in 33-CFR . .- Consistent with the LOP process as de?ned by 33 CPR fa public notice was not required. Furthermore, under 33 CFR 325., Appendix B, Section 6 activities eligible for a LOP are included in a Categorical-Explosion (CE) and therefore not subject tic-further documentation .underthe National Environmental Policont- (NEPA). The; application of the CE effectively meantthetthe?LOP in LAO-s case was issued without a notice sndcomment period from the public. Under the Sectionto permitting process thejcorpswas the 'de fecto lead federal sgency for the environmental review process and in thst'ce'pacity, coordinated With other federal agencies regarding Compliance with oil lawsThe Corps coordinated with federal and state ?sh and wiidlife agencies, as required by. the Fish and Wildlife Coordination Act, and conducted a public interest review of 7_ relevant testers, ineluding historic properties, ?sh end wildlifevalo'es,V'end Mitigation;- 7 - The details of this process are; soirered- inth?e adminiStrativerecord'of decision, The Corpss?followed the procedures appropriateforissuing,en LOP, and relianceon - . those procedures was appropriate based- on the information. stated in the sppliCstion. However, afterthe LOP was issued, the Corps learned; of new information and changed circumstances that took't'he prose-sores; 5. New information and Permit-Suspension: 'Atterthe-dolphins were-installedra?d - barges-began. utilizing pylons to moor along-San Jose island, tithe Corps received .oompleints that LAC was not compiying with the conditions stated in-the . LOP. Articles questioning-the LAC facility also appeared in the local press, -. . On December 2015, a grOup kn'own'as Friendsof Lydie?tnn Channel tiiedenfection . in the United-States District Codirt'fo?r the Southern Districti-of'TeXas staging-terrains 7' violations "or NEPA and'the Endangered Species Plaintift'aliejged was not operating within the parameters: identi?ed in thetLOP'; l'nitieljDisjtrict retiriew er 7 the action indicated that the LOP procedure was followed and that LAC's protect Wes? temporary._..jrnoorings As thefDistriotgcontinued questions. as" to the ecopeiof The Sistrict's investigation revealed that LAC was not, in fact, operating the facility as a temporary" mooring site LACM.000796 Case 2:15-cv-00514 Document 106-1 Filed in TXSD on 11/15/16 Page 4 of 4 but was actually conducting large scale fleeting operations that exceeded the scope of what the Corps had permitted. The Corps also conducted a site .visit on 8 February 2016 to assess whether operations complied with the terms and conditions of the permit. During this inspection, the Corps determined that the projeCt was not in compliance with the permitted plans. The pilings constructed were not of the same engineering design as the pilings authorized in the LOP, and their locations are located up to 17 meters awayfrom where they are authorized to be inStaIled. Additional structures were also identi?ed during this site visit. Two spud bargepilings associated with a ?house barge? that had been recently relOcated to LAC's topside repair facility'located in Rockport remained in tidal water. While LAC'had no Objection to removing the pilings and did so, their unauthorized placement and use of a spud barge, referred to as the ?house barge?, in a navigable water raised additional concerns about obstructions to navigation that were not addressed in the permit application. An internet search found that LAC, now referring to themselves as the-LAC Fleet, - advertises that they provide the ?best full service ?eeting service in the Corpus Christi area?. See This full service operatiOn includes crew boats and a 1200 horse power push boat available 24 hours a day, 24-hour security monitoring with. both onsite personnel and a state of the art surveillance system, grocery services, crew change pickUps, airport pickups and returns, as Well as o'n-site fueling service. While the permit application did include mention of a crew and'push boats with minimal security, these are normal appurtenances to barge mooring operations, and did not prompt the Corps to consider whether these normal appurtenances took the project outside the scope of LOP review. The appliCation did. not disclose?the full Service conveniences, such as on?site refueling, or address their impacts to naVigation Based on observations from the 8 February 2016 site visit and further review of. the LAC's description of their full service fleeting mission found 'on their website the Corps has cancluded that the LAC's stated purpose and need, for the project, to temporarily moor barges and tugs to mooring dolphinsrather than grounding barges on shore to reduce environmental impacts, did not accurately '7 describe the operations currently being conducted or address the underlying need for the project from a public interestreviewperspective. As a result of this change in purpose and need and the determination that the?project was not in compliance with the LOP as issued," the Corps initiated the necessary steps prescribed in 33 CFR 325.7 and suspended to proceed with - reevaluation of the project with the correct project purpose and need, its effect on navigation, and its environmental impact as it was being actually operated. LAC was noti?ed by letter dated 23 March 2016, and an internal reView was initiated within the District to determine the appropriate scope of review for what appeared to be a large scale commercial ?eeting facility. LACM.000797