R2002-0199 12-16-02RESOLUTION NO. R2002-199
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A TOLLING AGREEMENT WITH THE UNITED STATES
ARMY CORPS OF ENGINEERS FOR WETLAND MITIGATION
REQUIREMENTS ASSOCIATED WITH THE PEARLAND PARKWAY
PROJECT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Tolling agreement by and between the City of Pearland
and the United States Army Corps of Engineers, a copy of which is attached hereto as
Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a Tolling agreement with the United States Army Corps of
Engineers for wetland mitigation requirements associated with the Pearland Parkway
Project.
PASSED, APPROVED and ADOPTED this the
A.D., 2002.
16th day of ,
TOM REID
MAYOR
December
ATTEST:
CNGL/(D'~F~G '
SEg, RETARY ~'
APPROVED AS TO FORM:
CITY ATTORNEY
RESOLUTION NO. R2002-199
TOLLING AGREEMENT
DEC 2 0 2002
WHEREAS, the United States of America, on behalf of the United States Army Corps of
Engineers (Corps) may file a compliant against the City of Pearland ("potential defendant") for,
inter alia, an alleged violation of Section 404 of the Clean Water Act CCWA"), 33 U.S.C.
Section 1344, at a site located along Clear Creek between FM 518 and Beltway 8, Brazoria and
Harris Counties, Texas;
WHEREAS, the purpose of any such complaint would be to obtain appropriate injunctive
relief and to impose appropriate civil or criminal penalties for potential defendant's alleged
violations of the statute cited above;
WHEREAS, the Corps accepted an after-the-fact (ATF) permit application from the
potential defendant in an attempt to settle the above claims;
WHEREAS, both parties believe that their interests will best be served by continuing the
ATF permit process without the disruption that might be occasioned should the United States file
a complaint in the immediate future;
AND WHEREAS, both parties acknowledge the requirement found at 33 C.F.R.
331.1 l(c) for an applicant for an ATF permit to provide a signed tolling agreement;
Case 1-4605
DEC 2 0 20O2
THEREFORE, the United States and potential defendant stipulate and agree as follows:
1. The United States and potential defendant agree that the time between the acceptance
by the Corps of the ATF permit application and the final Corps decision (as defined at 33 C.F.R.
331.10), plus one year thereafter, will not be included in calculating any statute of limitations
that might be applicable to the alleged statutory violation described above. Potential defendant
agrees not to assert, plead, or raise in any fashion on behalf of any party, whether by answer,
motion, or otherwise, any defense or avoidance based on the running of any statute of limitations
that may apply during that period or any defense or avoidance based on laches or other principles
concerning the timeliness of commencing a civil action, based on the failure of the United States
to file its complaint during that period.
2. Potential defendant further agrees not to transfer the property in question during the
pendency of this tolling agreement nor during the pendency of any civil action brought as
described above, without first notifying the United States and giving the United States a
reasonable opportunity to oppose such transfer.
3. Nothing in this tolling agreement shall restrict or otherwise prevent the United States
from filing a complaint regarding any alleged statutory violation not described above, at any
time.
4. This tolling agreement does not constitute any admission of liability on the part of
potential defendant; nor does it constitute any admission or acknowledgement on the part of the
United States that any statute of limitations has run or that any statute of limitations is applicable
to the statutory claims described above.
Case 1-4605
5. This tolling agreement contains the entire agreement between the parties, and no
statement, promise or inducement made by any party to this agreement, or any agent of such
parties, that is not set forth in this agreement shall be valid or binding. This tolling agreement
may not be enlarged, modified or altered except in writing signed by the parties. This tolling
agreement may be executed in counterparts.
FOR the United States of America:
THOMAS H. MOORE
District Counsel
Galveston District, U.S. Army Corps of Engineers
DATE
FOR City of Pearland
ALAN R. MUELLER
Deputy City Manager
City of Pearland
DATE
Case 1-4605
Applicant: City of Pearland
· e umber: 1-4605 I Date: 12-02-02
Attached is:
INITIAL PROFFERED PERMIT (Standard Permit or Letter of Permission)
PROFFERED PERMIT (Standard Permit or Letter of Permission)
PERMIT DENIAL
APPROVED JURISDICTIONAL DETERMINATION
See Section below
A
B
C
D
PRELIMINARY JURISDICTIONAL DETERMINATION
E
A:
INITIAL PROFFERED PERMIT: You may accept or object to the permit.
ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your
signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights
to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit.
OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request that
the permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer.
Your objections must be received by the district engineer within 60 days of the date of this notice, or you will forfeit your right
to appeal the permit in the future. Upon receipt of your letter, the district engineer will evaluate your objections and may: (a)
modify the permit to address all of your concerns, (b) modify the permit to address some of your objections, or (c) not modify
the permit having determined that the permit should be issued as previously written. After evaluating your objections, the
district engineer will send you a proffered permit for your reconsideration, as indicated in Section B below.
B:
PROFFERED PERMIT: You may accept or appeal the permit
ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your
signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights
to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit.
APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein, you
may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this
form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the
date of this notice.
C: PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process
by completing Section II of this form and sending the form to the division engineer: This form must be received by the division
engineer within 60 days of the date of this notice.
D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved
jurisdictional determination (JD) or provide new information.
· ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the
date of this notice, means that you accept the approved JD in its entirety, and waive all rights to appeal the approved JD.
APPEAL: If you disagree with the approved JD, you may appeal the approved JD under the Corps of Engineers Administrative
Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received
by the division engineer within 60 days of the date of this notice.
E: PRELIMINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps
regarding the preliminary JD. The preliminary JD is not appealable. If you wish, you may request an
approved JD (which may be appealed), by contacting the Corps district for further instruction. Also you may
provide new information for further consideration by the Corps to reevaluate the JD.
DEC o zooz
REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an
initial proffered permit in clear concis~ statements. You may attach additional information to this form to clarify where your reasons
or objections are addressed in the administrative record.)
ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps memorandum for the
record of the appeal conference or meeting, and any supplemental information that the review officer has determined is needed to
clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record. However,
you may provide additional information to clarify the location of information that is already in the administrative record.
If you have questions regarding this decision and/or the appeal If you only have questions regarding the appeal process you may
process you may contact: also contact:
David Hoth Mr. James Gilmore
Project Manager, Compliance Section Appeal Review Officer, CESWD-ETO-R
CESWG-PE-RC U.S. Army Corps of Engineers
U.S. Army Corps of Engineers 1114 Commerce Street, Room 410
P.O. Box 1229 Dallas, Texas 75242-0216
Galveston, Texas 77553-1229 214-767-2457
409-766-3022; FAX: 409-766-3931
RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government
consultants, to conduct investigations of the project site during the course of the appeal process. You will be provided a 15 day
notice of any site investigation, and will have the opportunity to participate in all site investigations.
Date: Telephone number:
Signature of appellant or authorized agent.
REPLY TO
ATTENTION OF.
Compliance Section
DEPARTMENT OF THE ARMY
GALVESTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1229
GALVESTON, TEXAS 77553-1229
December 2, 2002
&d9JVNVI .AIJJ
t00r, 0 1. ,;_l
SUBJECT: I-4605; Unauthorized Fill in Wetlands, City of Pearland, Pearland Parkway
Extension, Brazoria and Harris Counties, Texas.
Mr. Alan R. Mueller
Deputy City Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
Dear Mr Mueller:
This concerns the City of Pearland's unauthorized discharge of fill material into waters of
the United States, specifically adjacent wetlands. The City of Pearland applied foi a Department
of the Army permit (22288) to construct the Pearland Parkway Extension from FM 518 to
Beltway 8. Construction commenced subsequent to permit issuance on May 5, 2002. The
unauthorized fill resulted from the clearing of the proposed right-of-way immediately north and
south of Clear Creek in Brazoria and Harris Counties Texas.
The Corps of Engineers has the authority to regulate certain work under provisions of
Section 404 of the Clean Water Act. Section 404 regulates the discharge of fill material into
waters of the United States, including adjacent wetlands. Based on our September 10, 2002 site
visit, we determined that the City of Pearland indirectly discharged fill material into 0.172 acre of
adjacent herbaceous wetlands and 2.118 acres of an adjacent forested wetland This activity is in
violation of Section 404 of the Clean Water Act. The wetlands met the hydrophytic vegetation,
hydric soil, and wetland hydrology criteria of the 1987 Corps of Engineers Wetland Delineation
Manual. The wetlands are located within the 100-year floodplain and are adjacent to Clear
Creek. This approved jurisdictional determination is valid for 5 years from the date of this letter
unless new information warrants a revision prior to the expiration date. Please see the attached
sheet regarding the administrative appeals process.
Based on the nature of the project and an evaluation of the documents and factors
concerning this unauthorized work, we have determined that we will accept an after -the -fact
permit application foi the unauthorized fill in adjacent wetlands. However, you must sign the
enclosed tolling agreement, which makes stipulations concerning the statute of limitations for
this violation. The application, along with the necessary plans, and the signed tolling agreement
must be submitted within 30 days from the date of this letter.
Please reference Case Number I-4605 in future correspondence pertaining to this
subject. If you have any questions or require additional information, please contact Mr. David
Hoth at the letterhead address or by telephone at 409-766-3022.
Sincerely,
John Davidson
South Unit Leader
Enclosure