THE NED S. HOLMES BAYPORT ENVIRONMENTAL IMPACT STATEMENT

The opposition by Galveston Bay Conservation and Preservation Association (GBCPA) and our bay communities to the proposed Ned S. Holmes Bayport Container Port has achieved an initial success by securing the Port of Houston Authority's (PHA) and the Corps of Engineers' agreement to prepare an Environmental Impact Statement (EIS) on this ill-conceived project. In August, Bob Essenwein of Turner, Collie and Braden (TC&B) announced that the PHA intended to prepare only an Environmental Assessment (EA) rather than an EIS on the Bayport project. After GBCPA announced in writing in September its intent to litigate over the failure to prepare an EIS, the PHA changed their position and agreed to prepare an EIS. This decision to prepare an EIS is a very important first step on the path to protecting Galveston Bay and adjacent residential areas from this huge proposed container port.

The purpose of this paper is not to present an analysis of impacts or a detailed design critique but rather to present the EIS process. This proposed Ned S. Holmes Bayport Container project will cover 1,050 acres adjacent to and south of the Bayport channel between Shoreacres and Seabrook and adjacent to El Jardin. A cruise terminal is proposed in addition to a container terminal. This project is proposed to have berths for 7 container ships at any one time and is projected to handle 3,840 containers per day.

The proposed Bayport container project is extremely large, representing two to three times the capacity (and traffic) of the existing Barbour's Cut facility at Morgan's Point. This Bayport project is projected by PHA to generate a peak of 7,000 trucks per day entering and leaving this facility, most likely via State Highway 146 and/or Red Bluff Road and will cause associated air pollution impacts and mobility disruption. This project will cause the filling of at least 200 acres of wetlands, will be a continuing source of noise and light pollution and will disrupt adjacent residential communities. The full extent of the impacts and disruption is not clear at this time. Indeed, the purpose of the EIS is to fully disclose such information.

This project caught most bay area residents by surprise. Rather than work with the public to develop this proposal, the Port of Houston chose to develop extremely detailed plans in relative secrecy, culminating with naming the facility after Chairman Ned Holmes prior to permitting and any degree of public acceptance. The failure of the PHA to effectively involve the public through mechanisms such as SEACAP, an industry community outreach group, is deplorable. This Ned S. Holmes facility will not have community legitimacy until effective public involvement occurs.

In order to construct the Bayport project, the PHA must obtain permits from the U.S. Army Corps of Engineers. These permits are issued under authority granted by Section 10 of the River and Harbor Act of 1899 and Section 404 of the Clean Water Act. As such, the issuance of these permits is an act of the federal rather than state government.

Federal actions are subject to much more environmental scrutiny than are state actions. The key statute regarding federal action is the National Environmental Policy Act (NEPA) of 1969. Under NEPA, environmental information must be considered by federal agency decision-makers whenever federal action is undertaken. As such, NEPA both required and allowed federal agencies to include environmental factors in decision-making.

Although NEPA created this mandate, it is reasonable to ask how the decision-maker learns about the environmental consequences of various actions. To address this question, Congress established an "action-forcing" provision in Section 102(2)(C) of NEPA. Here, Congress provided that a detailed statement shall be prepared for all major federal actions significantly affecting the quality of the human environment. According to section 102(2)(C), the environmental consequences of the proposed action are to be presented in this detailed statement along with alternatives to the proposed action. This detailed statement is then presented to the decision-maker for use in decision-making.

Under section 102(2)(C), the word "significant" is not defined. Under the rules of the Council on Environmental Quality (CEQ) governing the NEPA process, if doubt exists as to whether or not significant impacts exist, the agency should prepare an environmental assessment (EA). The EA is a summary document that reviews the environmental consequences of the action in much less detail than is the case with an EIS. The primary purpose of the EA is to assist the agency in determining whether or not the environmental consequences of the proposed project are "significant".

The difference between preparing an EA and EIS is critical to our Bayport opposition. If only an EA is prepared, the message to the decision-maker is that there are no significant environmental impacts associated with the proposed project. The completion of an EA is usually followed by the publication of a Finding of No Significant Impact (FONSI), a finding that tells the decision-maker that environmental issues have been resolved to the point that they do not require additional consideration in the decision-making process.

On the other hand, the decision by the PHA and the Corps of Engineers to prepare an EIS sends a very different message to the federal decision-maker. By preparing this detailed statement, the agency is acknowledging that "significant" environmental impacts will result from the proposed action and that unresolved environmental issues must be addressed in the decision regarding permit issuance. Stated otherwise, by triggering the EIS process, the environmental policy of the United States has become focused on the proposed Ned S. Holmes Bayport container port.

This is not to say that the Bayport project cannot or will not be constructed. Indeed, many bad projects have been built after the completion of an EIS. However, from a legal perspective, the affected public is empowered under NEPA to participate in the analysis and determination of impacts, meaning that we have the ability to become involved in the decision-making process regarding this port. And just as importantly, there are now almost 30 years of litigation regarding the EIS, its preparation and its contents. This case law can be used to ensure that all of the protection required by federal law is brought to bear on the proposed Ned S. Holmes Bayport container port.

There are many different aspects of case law that are applicable to Bayport. The EIS must provide full and fair disclosure. The EIS should not be biased but should contain an objective analysis in order that the decision-maker has honest, reliable information for inclusion in the decision-making process. That is what NEPA is about -- the incorporation of environmental considerations into decision-making. If the decision-maker is provided with false or misleading information that is "spun" a particular way, then the NEPA process has been subverted. The courts will overturn a decision based upon a biased EIS.

In this regard, a major issue exists regarding the selection of the contractor to assist the Corps in the preparation of this EIS. If the citizens living near Bayport and those concerned about Galveston Bay are to enjoy the protection provided by NEPA, then a fair and unbiased contractor must be selected to prepare this EIS. According to Mark King of the Corps, the contractor will be selected by the Corps and paid for by the PHA.

At this time, TC&B, the consulting company that has been representing the PHA at two public meetings regarding Bayport, is pursuing the EIS contract. While GBCPA does not challenge the integrity or capability of TC&B generally, we do believe that TC&B is too closely aligned with the PHA on the Bayport project, particularly given their prior performance in these public meetings. The preparation of an objective EIS represents the best chance for community grievances and concerns to be addressed. If you are concerned about the issue of objectivity of the federal contractor, then please write ASAP to Mark King at the Corps of Engineers in Galveston (P.O. Box 1229, Galveston, Texas 77553-1229; fax 409.766.3931; john.m.king@usace.army.mil).

The EIS process is set out in regulations enacted by the Council on Environmental Quality (CEQ). The first step is for the lead federal agency (here, the Corps) to identify whether or not other agencies should be identified as cooperating agencies. Cooperating agencies are those who have jurisdiction by law or special expertise. There are several unique issues posed by the proposed Ned S. Holmes container facility where the expertise of other agencies is both necessary and desirable.

These unique issues include diesel air emissions and regional mobility disruption from the truck traffic entering and leaving the facility. There are also concerns regarding noise pollution and lighting impacts on neighboring properties as well as more general issues regarding trends in the container industry, regionalization of port development and the economic and environmental evaluation of alternative, potentially competing port proposals. At the least, agencies such as the U.S. Environmental Protection Agency (air, noise, alternatives development and evaluation) and the U.S. Department of Transportation (mobility, container port development) should be identified as cooperating agencies and given responsibility for specific analyses.

There is also an issue regarding the necessity for a 50-foot or deeper channel at Bayport. Although the PHA denies that they are seeking permission for a 50+ foot deep channel at Bayport, both Congressional testimony and planning documents suggest otherwise. This is an extremely important environmental impact issue due to the potential for substantial negative impacts to bay productivity from increased salinity in the Galveston Bay system. If this deepening issue is addressed in the EIS, then the U.S. Fish and Wildlife Service and the National Marine Fisheries Service also should be designated cooperating agencies.

Under the regulations of the CEQ, the EIS process is initiated when a "scoping" meeting is conducted by the lead agency. This meeting is intended to be an "early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action." The public will be notified of this "scoping" meeting and will be invited to participate. All of you concerned about this project should plan to attend the "scoping" meeting. The date of this meeting has not yet been set.

The goal of the scoping meeting is to determine the issues of importance to be analyzed in detail in the EIS. The EIS can be analogized to a research project involving the proposed action. Data must be gathered and analyses must be performed to evaluate certain impacts. On the other hand, some issues may be less important to the community and may not need to be addressed in detail. The goal of the scoping session is to seek a consensus on the important issues requiring detailed analysis and on those that are of lesser concern.

According to the CEQ regulations, the lead agency is supposed to allocate responsibilities among the cooperating agencies at the scoping meeting. Those in the community concerned about impacts associated with air pollution, regional mobility, noise, lighting and regional port alternative analysis should contact Mark King ASAP and request that cooperating agencies be designated on these subjects.

The scoping meeting is the first official opportunity for the citizens and communities of the bay area to participate in the decision-making process regarding this project. Although the PHA has conducted two public meetings on this project (one of which was erroneously called a "scoping" meeting), those meetings are irrelevant with regard to the EIS now being prepared by the Corps. If you are concerned about this project, you should show up and tell the agencies what you think at the scoping meeting. If there are too many of us to be heard at a single meeting, the agency can come back and hold additional scoping meetings.

It is particularly important for political entities such as cities and subdivisions as well as for our local elected politicians to show up and be heard. The scoping meeting is the opportunity for the agency to evaluate the concern within the community as well as the impact of the project. The bay area needs to speak with a committed and cohesive voice at this meeting. At the least, the need for analysis and full disclosure of issues such as alternative container port locations such as Texas City, air pollution from diesel emissions, regional mobility disruption, wetland loss, noise and lighting pollution should be brought forward.

A difficult issue that should be raised at the scoping session is whether or not the 50+ foot deep channel should be considered in the EIS. The PHA has not applied to the Corps of Engineers for a 50+ deep channel although internal PHA planning documents identify a proposed 50-foot channel and testimony before Congress by the American Association of Port Authorities (of which PHA Executive Director Tom Kornegay is chair) states that 50+ foot deep channels will be necessary in the near future. In support of this position, the City of Texas City has identified that a 50-foot channel is needed in the Galveston Bay system and has proposed such a project.

Indeed, the City of Texas City is well into the planning for a major container port at Shoal Point in Texas City. Although no permit application has been filed for this facility, detailed planning documents exist and the City of Texas City has certainly "proposed" a major container port. In other words, there are two proposals, one by the PHA and one by Texas City, to construct container ports in the Galveston Bay system. One of these proposals states the need for 50+ foot depth; the other does not. These two pending projects should both be analyzed in detail in this EIS that is required under CEQ regulations to provide full disclosure of the impacts of all pending projects.

The issue of two competing port proposals is critical with respect to the issue of 50+ foot depth of the channel. As we deepen and widen our ship channels, more salt water moves into the bay from the Gulf. The higher into the bay system the channel enlargement extends, the worse the salinity impact. Texas City is currently authorized to 50 feet of depth. The salinity intrusion impacts will be less here than if 50-foot depth is taken to Bayport. This depth issue must be resolved now, or else all of us concerned about the future of Galveston Bay will live to regret our failure to force this critical issue to be addressed. This 50-foot depth issue certainly should be addressed at the scoping session.

There are also technical issues that need to be brought up at the scoping meeting. For example, there are several types of air pollution that will be generated by the diesel emissions. There are photochemical oxidant (ozone) impacts, there are small particle impacts and there are hazardous air pollutant impacts. Each of these types of pollution must be analyzed to determine the pounds of emissions from the container port which must be added to existing pollutant levels through the use of physical diffusion or reactive chemistry modeling to determine the resulting pollutant concentrations that residents will experience on bad air days. Then, these modeled concentrations must be compared with published health studies in an attempt to evaluate the health effects on exposed residents. The methodologies (calculation methods, models) to study and evaluate these air impacts are critical and should be identified by the lead or cooperating agency in the scoping session.

After the scoping meeting is concluded, the lead and cooperating agencies, in association with the contractors, prepare an analysis of the impacts of the proposed project. This initial analysis usually requires from six to twelve months and is released as a Draft EIS (DEIS). At that time, it is available for public review and comment and a public hearing will be held on the DEIS. At this time, the public is again invited to participate in the decision-making process by expressing its opinions on the adequacy of the alternative evaluation and impact analysis.

The agency must respond to all reasonable comments submitted in response to the DEIS. Of particular importance at this stage are technical comments that raise issues and concerns about the methodologies that were followed and the accuracy of the analysis. The analysis of alternatives is critical here as are issues such as cumulative impacts of multiple pending projects. Any subsequent court challenge to the Final EIS (FEIS) will be based, at least in part, on the comments submitted in response to the DEIS. Therefore, from a strategic standpoint, it is necessary for those of us concerned about this project to hire consultants and conduct studies in order to ensure that the administrative record developed by the Corps contains contrasting viewpoints in response to biased or inaccurate analyses.

After considering and addressing the comments, the lead agency issues the FEIS. Under the CEQ rules, no formal decision can be made until 90 days after publication of the DEIS or 30 days after publication of the notice of availability of the FEIS in the Federal Register, whichever is longer. At the time of the formal decision, a Record of Decision (ROD) is prepared by the agency. Under CEQ regulations, until the ROD is issued, no action concerning the proposal shall be taken which would have an adverse environmental impact or limit the choice of reasonable alternatives.

Once the agency issues an FEIS and prepares a ROD, opponents to the project can bring suit under the federal Administrative Procedure Act (APA), contesting the compliance of the lead agency with NEPA, CEQ regulations and the lead agency's own regulations. There have been thousands of federal cases interpreting NEPA and the principles of court review are clear. The judicial branch will not substitute its discretion for that of the administrative agency. However, the courts will require that the agency provide the decision-maker with an FEIS that honestly and objectively analyzes the relevant issues and alternatives. The courts will act to compel full and fair disclosure of all impacts associated with the proposed action, including cumulative impacts to the entire bay system, if appropriate.

In order to protect our bay neighborhoods as well as the bay itself, we must participate actively in this EIS process. On certain key issues, we must raise the money to prepare our own studies. We must create an administrative record that will support litigation by submitting scientifically valid studies and analyses in response to the DEIS. If a suit is filed, the federal judge has discretion regarding the extent of live testimony, if any, that will be heard. At times, the suit is determined solely on the basis of written comments submitted in response to the DEIS.

Ultimately, NEPA does not require that the agency protect the environment or follow our suggestions. If the agency tells the truth in the FEIS, adequately addresses the complex technical issues and fairly analyzes the alternatives, then it is free to take whatever action the decision-maker deems appropriate on the basis of the administrative record. The strength of NEPA is that it opens up the decision-making process, bringing it out of smoke- filled rooms and into public view, thereby empowering the public with knowledge and process. However, the history of NEPA demonstrates that the public, armed with knowledge, process and an iron will can defeat bad projects.

A reasonable long-term goal of our opposition to Bayport is to cause a serious examination of a regional approach to container port siting in the Galveston Bay system and to cause the PHA to seriously consider the impacts of their actions on their neighbors. The immediate goal is to cause the PHA to start over on its container port thinking by putting away the current Bayport plans and honestly working with the bay wide community to find a regional solution to container port needs, one that ensures that a 50+ foot channel will not be constructed into the upper bay and one that ensures that viable residential areas are not destroyed. The EIS process offers us the chance to bring about such a result.

Please see Bayport Draft Environmental Impact Statement Online for DEIS