The Louisiana Department of Environmental Quality has asked a state court judge to toss out the lawsuit a Watson homeowners group filed over a proposed gravel pit next to their neighborhood, saying the court has no authority to review the agency’s decision in this case.
At issue is a 230-acre sand- and gravel-mining operation that Southern Aggregates proposes to build next to the Oak Hills subdivision. Residents of the subdivision of more than 220 homes have expressed concerns about water quality, dust, noise, traffic and a reduction of property values because of the closeness of the proposed operation.
Southern Aggregates must get a permit from the U.S. Army Corps of Engineers because the project would involve wetlands. As part of the federal permit process, the state is required to first issue a water quality certification, which DEQ granted in October, saying the activity would not violate the state’s water quality standards.
Save Our Hills Inc., the homeowners group, along with Louisiana Environmental Action Network and resident O’Neil Couvillion, challenged that decision in the 19th Judicial District Court, saying DEQ failed to do a cost-benefit analysis, didn’t analyze possible alternative sites that would have less impact and didn’t make the use of best management practices, which is a condition of the certification.
They asked the judge to send the decision back to DEQ for further review.
But attorneys for DEQ said in a motion filed Friday that the court has no authority to review the agency’s grant of the water quality certification.
People affected by a DEQ decision have a right, spelled out in state law, to appeal “a final permit action, a final enforcement action or a declaratory ruling,” DEQ’s attorneys said in the motion, quoting the law. But a water quality certification is not a permit because it alone does not authorize anything, they argued.
“The LDEQ actions which are subject to judicial review are only those which are set forth in the statute,” the agency’s motion states. “Other actions of the LDEQ may be considered final decisions or orders, but are not subject to judicial review.”
Attorney Adam Babich, of the Tulane Environmental Law Clinic, which represents the neighborhood and environmental groups in this case, said the court previously agreed it had authority to review water quality certifications in other cases and should do the same here.
DEQ has a duty under the state constitution to act as public trustee of the state’s natural resources, but the agency “did not even go through the motions of discharging that duty” in this case, Babich wrote in a brief filed Friday.
The trustee duty is Louisiana’s only opportunity in the federal permit process to protect its own environment, Babich said Friday. If DEQ’s certification is not halted and sent back for further review, the Corps could grant the wetlands permit and effectively close the state’s window of opportunity, he said.
Babich contends there are other sites for aggregate mining that would have less harmful effects on the environment and residents. DEQ relied on Southern Aggregates’ assertion that no other practicable sites were available, instead of conducting its own analysis, he said.
DEQ records show Southern Aggregates considered at least nine other properties when deciding to locate a mining operation on the Easterly tract next to Oak Hills subdivision. None of the nine properties met all the company’s criteria for site size, gravel availability, proximity to market, landowner willingness, minimal wetlands and favorable zoning, the company said.
Austin Baxter, an Oak Hills resident and member of Save Our Hills, said Southern Aggregates demonstrated there were alternatives when the company opened three other mining operations after applying for permits for the Easterly tract.
Two of the sites — the Spiess tract outside Pine Grove and the Adams tract in Greensburg — “were endeavors Southern Aggregates engaged in prior to the ‘alternatives analysis’ submitted to LDEQ regarding the proposed Easterly Lease,” Baxter wrote in an Aug. 2 letter to DEQ. “Now, Southern Aggregates has acquired yet a third endeavor (the Johnson plant in Clinton), which has been successfully permitted.”
Baxter pointed out that all three of the mining operations are on sites much smaller than the 90-acre minimum Southern Aggregates told DEQ it needed to make mining feasible. All three sites also are located outside the company’s preferred travel area, he said.
Kevin Black, vice president and general manager for Southern Aggregates, said the other sites were opened because the Easterly site next to Oak Hills had gotten bogged down at a time when some of his larger sites were playing out of gravel and preparing to close.
“These aren’t additional sites. They’re displacement sites,” Black said. “When we started to see the writing on the wall with Easterly and the depletion at other sites, we had no choice but to open smaller, more costly sites, just as a Band-Aid measure. It was either that or close the door.”
The Spiess site, a 50-acre tract a few miles north of Black’s office on La. 16, is part of a two-tract deal where the second tract to be mined is 1,300 acres, Black said.
“It was one of those deals where the landowner says, to mine my 1,300, you’ve got to mine my smaller tract,” he said.
The Spiess plant also is not a complete operation unto itself. It relies on tractor-trailer trucks to haul the mining material to another plant to complete the sorting and washing process, he said.
“It’s more expensive that way, but we understood that as part of the deal with the landowner,” Black said. “It was a business decision on our part.”
The Adams site, about 25 acres near Greensburg, also was a compromise for the company. The land had been under lease for years and was signed in the hopes of leasing adjacent tracts, Black said.
“It’s never an intent to just mine 25 acres,” Black said. “It’s always the intent to secure whatever is available around it. But we opened that site, again, because of the delay at Easterly.”
The third site, a 25-acre plant in Clinton, was an existing business Southern Aggregates bought to help offset the loss from the depleted sites, he said.
In addition to the three small operations, Southern Aggregates has active mining plants on Sims Road north of Denham Springs, on Weiss Road just across the St. Helena Parish line and in Amite, Black said.
The Weiss Road plant is expected to play out this year as is the small Spiess plant, and the Amite plant serves a different market, Black said. In effect, that leaves the company with only the large Sims Road site and two smaller sites to serve the same demand Southern Aggregates was meeting with three large plants in 2014, he said.
“A guy starving to death is not going to wait for the steak dinner. He’s going to eat the peas on his plate,” Black said.
Southern Aggregates has complied with state regulations, as well as the new Livingston Parish mining ordinance, Black said.
“We have played by all the rules. We have done over and above, and it seems like it’s never going to be enough,” Black said. “I don’t know what more we can do.”
Follow Heidi R. Kinchen on Twitter, @HeidiRKinchen, and call her at (225) 336-6981.