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Developer take Corps to court

GALVESTON — After spending nearly four years and $800,000 seeking federal approval for its project, an island development firm wants a federal court to declare the U.S. Army Corps of Engineers no longer has jurisdiction over its property.

The lawsuit, which follows a Supreme Court decision last year, could limit the corps’ authority to protect wetlands throughout Galveston’s West End.

In U.S. District Court in Galveston on Thursday, Kahala Development, which is building Beachside Village between 8 Mile and 9 Mile roads south of FM 3005, filed a lawsuit against the regulatory agency seeking relief from what the company called a “bureaucratic nightmare.”

If Kahala succeeds, the case could have far-reaching implications for West End developers, who must comply with what they say is a costly and cumbersome process for permits to fill and dredge wetlands to make way for high-end homes.

Wetlands are ecosystems essential to marine life and flood-water detention and are supposed to be protected under the Clean Water Act.

The ecosystems, disappearing under development, are the subject of clashes between developers and environmentalists.

Anthony Buzbee, an attorney representing Kahala Development, said the corps has overstepped its authority and isn’t correctly following guidelines.

He intends in court to use a June 2006 U.S. Supreme Court ruling that limits the corps’ authority to protect wetlands.

The ruling forces the corps to determine a closer proximity between wetlands and federally controlled waterways before it can claim jurisdiction.

The lawsuit argues that “so-called wetlands” at the Kahala development are not subject to the corps’ jurisdiction because they aren’t connected to U.S. waters.

“If successful — and it appears that we will be successful — this will change dramatically what the corps has been doing, and what it can do, with regard to the West End,” Buzbee said.

Corps officials were not immediately available for comment.

Kahala has long been at odds with the corps about wetlands on which it’s developing 154 lots on 62 acres. The permit process and disagreements with the corps have kept the developer from completing the project, Buzbee said.

The lawyer said his client has offered mitigation that would have contained three times the amount of wetlands at issue and has attempted to make his project “eco-friendly.”

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On The Web

www.usace.army.mil

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Clarifying Roles

On June 7, the Environmental Protection Agency and the U.S. Army Corps of Engineers clarified their roles in protecting wetlands.

The agencies would:

• Continue to regulate “traditionally navigable waters,” including all rivers and other waters that are large enough to be used by boats that transport commerce and any wetlands adjacent to such waters.

• Continue to regulate “non-navigable tributaries that are relatively permanent and wetlands that are physically connected to these tributaries”

• Continue, based on case-by-case determinations, to regulate other tributaries and adjacent wetlands that have certain characteristics that significantly affect traditionally navigable waters.

 

Laura Elder
The Galveston Daily News
July 20, 2007
Galveston