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In response to a series of actions considered biased in several ways, the Bayport opposition is pressing the U.S. Army Corps of Engineers to disqualify its Galveston District commander, Colonel Leonard Waterworth, from making decisions on the proposed mega-container terminal.
The request to the Corps of Engineers hierarchy to replace Waterworth as the final decision maker on the Port of Houston Authority's Bayport permit application was submitted by the City of Shoreacres and the Galveston Bay Conservation and Preservation Association (GBCPA).
"We are confronting a pattern of biases cropping up over and over again," said Mayor Nancy Edmonson of Shoreacres. "The Corps of Engineers has authority to issue permits for coastal development, and federal laws require actions by the Corps to be equitable to all parties. On this project, their actions have been far from fair."
In the letter requesting Waterworth's removal, GBCPA Chair Jim Blackburn said: "The Colonel has consistently made knowing and intentional omissions of significant facts, and false and misleading statements that have severely impacted the due process rights of concerned citizens."

Blackburn acknowledged that there is pressure on a district commander in such decisions. "He is a focal point of political pressure from a powerful applicant. But the colonel is also the first line of defense for the public. Over 5,000 people live within one mile of the proposed Bayport facility. They have a right to a fair permit process. If the colonel is biased, the whole process is undone."
The joint request to disqualify Waterworth went to the Commander and Chief of Engineers, Lieutenant General Robert B. Flowers, at the Corps headquarters in Washington, D.C., and to the its Engineer Inspector General, Lieutenant Colonel Willie A. James, in Alexandria, Virginia. It also went to the Pentagon--to the Honorable Les Brownlee, Under Secretary of the Army--and to Corps lawyers in Galveston and Washington.

* Knowing release of false information: Releasing the final EIS on Bayport in May 2003 without mentioning that a permit had already been issued for a new Galveston Bay container port at Shoal Point in Texas City--one of the alternative sites in the Bayport permit application--was a biased action. There is no doubt that Colonel Waterworth knew the Shoal Point permit had been issued; he signed the Shoal Point "record of decision" document.

* Knowingly limiting practicable alternatives: The Bayport final EIS (unlike the draft EIS) for the first time accepted that the planned cruise terminal and container facility are not interdependent. If there is no need for them to be located together, then there is no need for the Corps' analysis of alternatives to be restricted to sites large enough to accommodate both. Considering only very large sites has biased the Corps' analysis of whether practicable alternatives exist that would have less adverse impact on the aquatic environment.

* Failure to disclose noise, vibration and air pollution impacts: The Bayport draft EIS (2001) claimed that these issues were of no significance and posed no threat to nearby communities. But the final EIS (2003) presented a very different picture: sound levels violating the Pasadena noise ordinance and EPA standards, including particularly at night when sleep would be disrupted; noise-induced vibration to residential structures up to 4,600 feet from the Bayport channel, a continuous long-term effect; and violation by 2010 of the air quality standard for fine particle pollution (PM 2.5), which is known to cause respiratory illness. Failure to provide for full disclosure and citizen comments on these impacts constitutes bias.

* Failure to evaluate deepening of the Houston Ship Channel: Although the authorized depth of the Houston Ship Channel is only 45 feet, the Bayport permit application indicates container docks reaching a depth of 56 feet and that cranes sized for giant post-Panamax vessels that require from 45 to 53 feet of depth. Colonel Waterworth falsely stated that the impacts of deepening the channel to at least 50 feet were addressed in the Bayport draft EIS and final EIS. They were not. Instead, the FEIS, in another location, stated that the impacts would not be considered because there was no authorization for a deeper channel.

* Allowing the Port of Houston Authority multiple revisions to its application: The five revised permit applications that the Corps has allowed so far (in addition to the draft and final EIS documents) indicate bias in favor of the Port. According to the public notices, the public must respond each time--otherwise "it will be considered that there are no objections." Thus the public has been forced to submit objections repeatedly, each time the Port makes piecemeal changes, at great expense and great effort.

Shoreacres and GBCPA contend that the colonel is not acting in the public interest, and that knowingly providing false information disqualifies Colonel Waterworth as the final decision maker for the Bayport permit. The Corps has to date made no public response to the request for his removal.
District commanders in the Corps generally serve tours of duty lasting about three years. Colonel Waterworth is likely to receive a new posting about a year from now. "He will not have to live with the consequences of biased decision making on Galveston Bay, but we all will," said Mayor Natalie O'Neill of Taylor Lake Village.