Flowing through the Clear Lake area of Houston, the Armand and Horsepen Bayous are lovely natural areas, teeming with wildlife. Running, biking or kayaking through the area, you will have close encounters with whitetail deer, raccoons, alligators (some in excess of 10 feet) and possibly even a bobcat or coyote. The bayous, which eventually flow into Galveston Bay, are popular areas for hiking, fishing, canoeing and wildlife tours. The 2500 acre Armand Bayou Nature Center, located in the heart of the area, is the largest urban wilderness preserve in the United States.
Near the bayous, and arguably connected to them, are coastal prairie wetlands, 200 acres of which are on the site of a 500 home development of Trendmaker Homes. A new citizens suit, brought by the non-profit Galveston Baykeeper group, accuses Trendmaker of violations of the Clean Water Act in connection with the development. Video of the project shows massive bulldozing, dredging, tree clearing and dirt movement.
The suit claims that Trendmaker’s clearing has led to the discharge of fill materials onto the wetlands, which are connected to the two bayous, all without a permit issued pursuant to the Clean Water Act.
Congress enacted the Clean Water Act to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters”. At its most basic level, the Act prohibits discharge of pollutants into the navigable waters of the United States, unless the discharge is in compliance with a permit issued pursuant to the Act.
Baykeeper asks the federal court to enjoin (stop) further development until a permit is obtained. It also requests that the Court order Trendmaker to remediate the site and to pay civil penalties of up to $37,500 a day. Any such penalties would be paid not to Baykeeper, but to the federal government.
In its answer, Trendmaker admits that it has bulldozed and cleared, admits that it does not have a permit, and admits that at least a portion of the land it is development sits on wetlands. But it denies that it was obligated to obtain a permit, claiming that the wetlands have no significant connection with either of the bayous, or any other navigable water of the United States, and thus are not covered by the Clean Water Act. It denies discharging any filled materials into waters covered by the Act. It also alleges that Baykeeper has no standing to bring the suit, because it has suffered no actual damage as a result of the project.
The case is being heard by respected United States Judge Lynn Hughes, who will need to decide whether than land on which the development is taking place is actually covered by the Clean Water Act.