X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Before STEWART, ELROD, and GRAVES, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge: The Sabine–Neches Waterway is located in the southeastern-most parts of Texas and the southwestern-most parts of Louisiana, providing passage from the Gulf of Mexico to Port Arthur, Beaumont, and Orange, Texas, and beyond. It is vitally important to the local, state, and federal economies. Despite its importance, sixty years have gone by without much effort to maintain or otherwise improve it. The Sabine–Neches Navigation District set out to change that. The price tag on the proposed improvements totaled roughly $1.1 billion. After some bureaucratic wrangling, Congress covered most of the cost with the District left to cover the rest. The District planned to cover its share through port fees. But the same federal law that led to congressional funding also sets limits on how costs can be passed onto consumers by local entities. Two energy companies sued the District, claiming that the port fees exceeded those limits. The district court concluded that they failed to state plausible claims and dismissed the case. We AFFIRM. I. As waterways here in America go, the Sabine–Neches Waterway is one of our nation’s most critical. Not only does it rank near the top in business and busyness, it is home to the U.S. military’s largest strategic commercial seaport. But as ships became larger, the Sabine–Neches Waterway largely stayed the same. Its lack of depth and width poses a problem for many modern vessels. To make the necessary improvements to the Waterway, the District needed funds. Congress opened up the federal purse for such projects through the Water Resources Development Act of 1986, 33 U.S.C. § 2201, et seq. In the years before the Act’s passage, trying to improve waterways was a bureaucratic nightmare. See New Orleans S.S. Ass’n v. Plaquemines Port, Harbor & Terminal Dist., 874 F.2d 1018, 1024–25 (5th Cir. 1989) (digesting the backstory of the Harbor Development and Navigation Improvement Act, which was passed as part of the Water Resources Development Act). It could take up to twenty-six years from first study to project completion, with as many as nineteen independent reviews along the way. Id. When Congress passed and President Reagan signed the Act, Congress had not approved a project in nearly two decades. Id. Through the Act, Congress streamlined the process and came up with a new way to finance waterway-construction and -improvement projects. Id. at 1025. Rather than rely only on the federal fisc, the federal government would shoulder some or most of the cost and would share the rest with state and local entities. Id. Plus, state and local entities had a greater practical interest in the waterway development, so they were more likely to get it done faster. Id. The process begins with a feasibility study by the U.S. Army Corps of Engineers. Once that is done, it is published in the Federal Register and the Secretary of the Army gives it to Congress. Congress then reviews the study and the projected costs and puts it to a vote. If it prevails and the President signs it, Congress gives the local entities money to cover the first phase of the project (called “new start” funds). The local entities then enter into a cooperative agreement with the Army Corps of Engineers covering the project, which includes “provid[ing] to the Federal Government the non- Federal share of all other costs of construction of [the] project.” 33 U.S.C. § 2211(e)(3). See also Air Liquid Am. Corp. v. U.S. Corps of Engineers, 359 F.3d 358, 361 (5th Cir. 2004) (describing process). The District prepared for years, but did not formally begin the Sabine– Neches Waterway Channel Improvement Project until 2011. The District worked with the Army Corps of Engineers, and the Corps completed its study in March of that year. The Corps concluded that Congress should fund the Project: deeper waterways means bigger ships which fit more cargo, which means fewer ships, which means less congestion. The Secretary of the Army transferred the Project to Congress, Congress passed it, see Water Resources Reform and Development Act of 2014, Pub. L. No. 113–121, 128 Stat. 1193, 1364, § 7002 (2014) (“WRDA-14″),[1] and President Obama signed it into law.[2] The Project’s price tag was just over $1.1 billion, with the federal government covering around $748 million and the District just under $366 million. Id. Congress then appropriated “new start” funds for the Project to get the ball rolling in 2019. See Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019, Pub. L. No. 115–244, 132 Stat. 2897, 2898–99 (2019). Those new-start funds would ultimately be used to complete the first part of the Project: the deepening of Anchorage Basin No. 1 from twenty feet to forty feet. The District and the Corps then entered into the statutorily required agreement. See 33 U.S.C. § 2211(e)(3). The Agreement listed the projected cost at over $1.2 billion (up a bit from WRDA-14), with a $732 million/$488 million federal–District split (roughly 60%–40%). That number, of course, was a projection, and its fluidity becomes relevant later. The Agreement otherwise detailed the specifics on the deepening and widening of the Waterway and outlined the environmental effects of the Project.[3] So the District needed $488 million. The first $20 million in “new start” funds went to deepening Anchorage Basin No. 1—before it was twenty-feet deep, now it is forty-feet deep. Once that was done, the District proposed the User Fee. The User Fee would apply only to ships with drafts greater than twenty feet—in other words, ships that were too big to use the Basin before the deepening. The Fee could change based on certain (unrelated) conditions, but the basics are as follows:

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
September 18, 2024 - September 19, 2024
Dallas, TX

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More
October 15, 2024
Dallas, TX

The Texas Lawyer honors attorneys and judges who have made a remarkable difference in the legal profession in Texas.


Learn More
April 08, 2025 - April 09, 2025
Chicago, IL

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More

We re a Business Law firm looking to hire an experienced Associate Attorney for our litigation and transactional practices. We have offices ...


Apply Now ›

Salary: $81,785.60 - $131,414.40 Annually Description: The Deputy District Attorney I/II/III performs a variety of professional legal wor...


Apply Now ›

NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY Invites applications for the position of:Senior Attorney - Employment and LaborThe New York ...


Apply Now ›
06/27/2024
The American Lawyer

Professional Announcement


View Announcement ›
06/21/2024
Daily Business Review

Full Page Announcement


View Announcement ›
06/14/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›