A group called Friends of the Lydia Ann Channel convinced a federal judge there were enough oversights, missing details or misinformation in the permitting process to warrant a trial and full re-evaluation of a barge mooring project near Port Aransas.
Group members called the Wednesday decision a partial victory in what may be a long legal process involving their lawsuit against the U.S. Army Corps of Engineers. Senior U.S. District Judge Janis Graham Jack ordered the parties to proceed with the discovery process. A trial date is scheduled for Feb. 14, 2017.
The friends group filed a lawsuit last year seeking a revocation of the permit, removal of the barge moorings and restoration of the affected habitat along the channel. They cited the storage facility's potential harm to environmental, recreational, historical and archeological treasures.
Wednesday's court appearance followed the Corps' suspension of its January 2015 letter of permission for the now-completed project, which is fully operational.
Jack said the 2014 permitting process by the Corps that allowed construction of the project "does not pass the smell test," referring to the application as "unbelievably incomplete" and lacking independent environmental scrutiny.
While lawyers for the Corps argued Wednesday that proper protocol was followed from the start, a March 23 letter from the Corps indicates that a recent inspection reveals the project is not in compliance with the permit. The suspension triggers a re-evaluation process, which could result in revoking the permit and shutting down of the operation. Attorneys for the Corps said the re-evaluation process could take up to a year.
Federal attorneys said the Corps is not authorized to revoke the permit at this time, a point disputed by the friends group's attorney Douglas Kilday.
Construction of the project began in 2015 by a local company called Lydia Ann Channel Moorings LLC, which is co-owned by local oral surgeon Bryan Gulley. Gulley said his company followed the rules.
"We've been very good stewards of the property and I believe we will prevail," Gulley said.
Before construction began, Gulley said the enterprise would address complaints of barges being pushed against San Jose Island near the channel while awaiting passage into the port. The company installed about 70 mooring structures, fewer than the proposed 82, between 75 and 12 feet from the island at a depth of 12 feet, he said.
Attorneys for the friends group dispute that this depth is maintained throughout.
Gulley said the project involves a line of 30-inch hollow, steel cylinders positioned 100-200 feet apart, stretching for slightly less than the proposed 8,000 feet. These mooring structures are called dolphins. Tugboats and/or barges would be secured to them by ropes or cables temporarily while awaiting dispatch.
The friends group said what was proposed as a simple short-term storage facility is now a long-term mooring operation and refueling station, resulting in an environmental hazard, the scope of which was not addressed in the permit.
The group is declaring the Corps failed to comply with the Endangered Species Act and did not conduct a proper environmental impact studies. They claim the permitting process was hurried and should have allowed for public input. Jack asked Corps attorneys whether the Corps officials involved in the original letter of permission would be the same staffers conducting the re-evaluation.
"Should the people who were so cavalier about this environmentally sensitive area be in charge of the re-evaluation?" Jack asked, adding that it appears few independent determinations of potential harm were requested or conducted by the Corps.
A Corps spokesman said last year the original process did include scrutiny from Texas Parks & Wildlife Department, National Marine Fisheries Service, U.S. Fish & Wildlife Service, the Texas General Land Office, the State Historic Preservation Office and U.S. Coast Guard. Corps officials also met with the U.S. Environmental Protection Agency, Texas Commission on Environmental Quality and state Rep. Todd Hunter's office during the early stages.
Those agencies had no major concerns that would block the project outright, according to Isidro Reyna, deputy chief of public affairs for the Corps' Galveston office. Concerns included the need for a submerged land lease agreement with the GLO before the project could proceed. This was granted.
The Corps had concerns regarding a historic shipwreck in the vicinity but a survey satisfied that issue. Ultimately, the Texas Historical Commission did not intervene. The agencies also asked the company to provide an emergency pollution plan in the event of a toxic spill, which a Corps spokesman said was submitted. There were seagrass concerns, but those were unfounded, according to Corps of Engineers documents. And the U.S. Coast Guard determined the operation would pose no navigational problems.
Public outcries grew louder as construction began last year and eventually the friends group circulated a petition and began raising funds for a legal assault.
"FLAC (Friends of the Lydia Ann Channel) is not just a handful of folks upset over this project," said James King, one of the original organizers of the friends group. "There's a lot of people unhappy about this, and that's who's helping to fund this lawsuit."