Bayou City Waterkeeper v. U.S. Army Corps of Eng'rs

BAYOU CITY WATERKEEPER, Plaintiff. v. U.S. ARMY CORPS OF ENGINEERS, ET AL., Defendants.

CIVIL ACTION NO. 3:20-cv-00255

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

May 27, 2021

MEMORANDUM AND RECOMMENDATION

Bayou City Waterkeeper filed this lawsuit against the United States Army Corps of Engineers (the "Corps") and several individual government employees acting in their official capacities (collectively, the "Government").¹ The Government has moved to dismiss the claims for lack of subject matter jurisdiction. See Dkt. 14. Having reviewed the Amended Complaint, the briefing, and the applicable law, I recommend that the motion to dismiss be DENIED.

BACKGROUND

Bayou City Waterkeeper is a non-profit organization dedicated to protecting and restoring the Lower Galveston Bay watershed. It filed the current lawsuit on behalf of some of its members who live in a suburban neighborhood bordering Robinson Bayou, a waterway that joins Clear Creek on its way to the brackish waters of Clear Lake harbor. Broad Reach Partners LP ("Broad Reach") owns 30 acres of land situated between the neighborhood and Robinson Bayou.

In 2012, Broad Reach applied for a permit under § 404 of the Clean Water Act ("CWA") to fill in approximately one acre of wetlands so that it could develop a residential neighborhood. Bayou City Waterkeeper alleges that the permit application "ignored nearly 9 acres of forested wetlands affected by its project." Dkt. 12 at 2. According to Bayou City Waterkeeper, the Corps withdrew Broad Reach's permit application in 2014 after Broad Reach failed to resolve concerns raised by the Environmental Protection Agency. Nonetheless, Broad Reach began development of the property in 2015 without any permit from the Corps.

In 2019, the Corps issued an "approved jurisdictional determination" ("AJD") that "retroactively deemed only 1.35 acres of wetlands" to be protected under the CWA as waters of the United States. Id. Bayou City Waterkeeper sued the Government in August 2020, claiming that the Corps issued the AJD in violation of § 706(2)(A) of the Administrative Procedure Act ("APA"). Bayou City Waterkeeper alleges that the AJD effectively absolved Broad Reach of any responsibility to mitigate the destruction of nine acres of wetlands. Without mitigation, Bayou City Waterkeeper alleges that its members residing near the property will suffer increased flooding and the loss of wildlife in the area.

Bayou City Waterkeeper requests an order vacating the AJD or declaring the additional nine acres to be jurisdictional waters of the United States. The Government argues that Bayou City Waterkeeper has no constitutional standing to sue, and requests an order dismissing this case for lack of subject matter jurisdiction.²

SUBJECT MATTER JURISDICTION

Section 702 of the APA has been interpreted as creating a presumption in favor of judicial review of agency action, "so long as no statute precludes such reliefor the action is not one committed by law to agency discretion." Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967). Judicial review is also unavailable to attack agency actions that are not final. See 5 U.S.C. § 704. If the agency action is final and not committed to agency discretion, and if judicial review is not precluded by statute, the plaintiffs still must show that they have constitutional standing to sue. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.").

It is undisputed that AJDs are final agency actions subject to judicial review under the APA, see U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1814-15 (2016), and the Government has pointed to no statute that might preclude judicial review here. The only question before me is whether Bayou City Waterkeeper has standing to sue. An organization has standing to sue on behalf of its members "when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). The Government argues that Bayou City Waterkeeper does not have standing to sue because the members it represents do not have standing to sue.

To establish Article III standing, an individual bears the burden of showing that he suffered "(1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury." Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009) (quotation omitted). On a motion to dismiss, district courts analyze standing "based on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ecosystem Inv. Partners v. Crosby Dredging,L.L.C., 729 F. App'x 287, 292 (5th Cir. 2018) (quotation omitted). See also Lujan, 504 U.S. at 561 (explaining that the plaintiff must establish standing "with the manner and degree of evidence required at the successive stages of the litigation").

A. INJURY-IN-FACT

"[G]eneral factual allegations of injury resulting from the defendant's conduct" may survive a motion to dismiss. See Lujan, 504 U.S. at 561. Members of Bayou City Waterkeeper can show that they have suffered an injury in fact by alleging that they "use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Friends of the Earth, 528 U.S. 183 (quotation omitted). Still, the injury must be imminent and not speculative. See Lujan, 504 U.S. at 564 n.2 ("Although 'imminence' is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending." (cleaned up)).

Before Broad Reach began developing its property, Bayou City Waterkeeper alleges that its members regularly visited the wetlands along Robinson Bayou to observe wildlife, photograph nature, and experience solitude and quiet. See Dkt. 12 at 7. Bayou City Waterkeeper alleges that Broad Reach filled in nine acres of wetlands protected by the CWA without obtaining a permit from the Corps. It was only after Broad Reach filled in the wetlands that the Corps issued an AJD declaring those nine acres to be non-jurisdictional waters of the United States. This AJD absolved Broad Reach of any penalties it might otherwise face under the CWA, and it meant that Broad Reach would not have to mitigate the loss of those nine acres of wetlands. Without mitigation, Bayou City Waterkeeper alleges that its members will experience "the threat of increased flooding and the loss of [the forested wetland's] aesthetic value." Dkt. 12 at 9. These allegations are sufficient to establish standing at the motion to dismiss stage. See Kleinman v. City of Austin, 310 F. Supp. 3d 770, 776 (W.D. Tex. 2018) ("Aesthetic and recreational injuries constitute injuries in fact for CWA citizen-suit plaintiffs."); Black WarriorRiverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 781 F.3d 1271, 1280 (11th Cir. 2016) (finding injury in fact based on aesthetic and recreational injuries in a non-citizen suit).

B. CAUSAL CONNECTION

To establish standing to sue, Bayou City Waterkeeper must also allege facts showing that the injuries to its members are "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Lujan, 504 U.S. at 560 (cleaned up). Under the facts of this case, where Bayou City Waterkeeper is not the direct target of agency action, "standing is not precluded, but it is ordinarily substantially more difficult to establish." Id. at 562 (quotation omitted). See also Warth v. Seldin, 422 U.S. 490, 505 (1975) (explaining that "the indirectness of the injury does not necessarily deprive the person harmed of standing to vindicate his rights"). In this posture, a plaintiff can show causation "by establishing that the challenged agency rule permitted the activity that allegedly injured her, when that activity would allegedly have been illegal otherwise." Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 440-41 (D.C. Cir. 1998).

The injury complained of here is fairly traceable to the Corps' retroactive issuance of the AJD. If the Corps had not issued the AJD declaring nine acres to be non-jurisdictional, Broad Reach's fill activity would have been unlawful under the CWA. The Government could have brought enforcement actions against Broad Reach and required Broad Reach to mitigate the destruction of those nine acres of wetlands. Alternatively, Bayou City Waterkeeper could have filed a citizen suit against Broad Reach under the CWA for unlawfully filling in jurisdictional waters of the United States. See 33 U.S.C. § 1365 (citizens may sue "any person . . . who is alleged to be in violation of . . . an effluent standard or limitation under this chapter"). Either way, the loss of nine acres of wetlands could be mitigated. By issuing the AJD, the Corps shielded Broad Reach from any liability under the CWA. Because of the AJD, Bayou City Waterkeeper can no longer seek to redress theinjuries to its members. This is enough to establish causation for purposes of a standing analysis. See Friends of Lydia Ann Channel v. U.S. Army Corps of Eng'rs, No. 2:15-cv-514, 2016 WL 6876652, at *4 (S.D. Tex. Nov. 22, 2016) ("Plaintiff's and its members' injuries are the direct result of [the Corps'] issuance of the [letter of permission] authorizing [third...