HomeMy WebLinkAboutRES 13-132 RESOLUTION NO.13-132
WHEREAS, the Army Corps of Engineers claims the City must apply for approval,
after the fact, from the Army Corps of Engineers for the placing of fill material in the City
of Beaumont raw water transfer canal; and,
WHEREAS, the Army Corps of Engineers contends a Tolling Agreement to toll the
statue of limitations, if necessary, for the Army Corps of Engineers to obtain appropriate
injunctive relief and impose appropriate civil or criminal penalties for an alleged
unauthorized placing of fill materials is required;
NOW, THEREFORE, BE IT RESOLVED BY THE
CITY COUNCIL OF THE CITY OF BEAUMONT:
THAT the statements and findings set out in the preamble to this resolution are hereby, in
all things, approved and adopted; and,
THAT the City Manager be and he is hereby authorized to apply for an After the
Fact Permit and enter into a Tolling Agreement with the Department of the Army,
Galveston District, Corps of Engineers. The agreements are substantially in the form
attached hereto as Exhibits "A" and "B" and made a part hereof for all purposes.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 25th day of
June, 2013.
c ay—or Becky Ames -
fit
APPLICATION FOR DEPARTMENT OF THE ARMY PERMIT OMB APPROVAL NO.0710-0003
(33 CFR 325) 7EXPIRES: 31 August 2012
Public reporting burden for this collection of information is estimated to average 11 hours per response,including the time for reviewing instructions,searching
existing data sources,gathering and maintaining the data needed,and completing and reviewing the collection of information. Send comments regarding this
burden estimate or any other aspect of this collection of information,including suggestions for reducing this burden,to Departmeni of Defense,Washington
Headquarters,Executive Services and Communications Directorate, Information Management Division and to the Office of Management and Budget,
Paperwork Reduction Project(0710-0003). Respondents should be aware that notwithstanding any other provision of law,no person shall be subject to any
penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number.Please DO NOT RETURN your form to
either of those addresses.Completed applications must be submitted to the District Engineer having jurisdiction over the location of the proposed activity.
PRIVACY ACT STATEMENT
Authorities: Rivers and Harbors Act,Section 10,33 USC 403; Clean Water Act,Section 404,33 USC 1344,Marine Protection,Research,and Sanctuaries
Act,Section 103,33 USC 1413;Regulatory Programs of the Corps of Engineers;Final Rule 33 CFR 320-332. Principal Purpose:Information provided on this
form will be used in evaluating the application for a permit.Routine Uses: This Information may be shared with the Department of Justice and other federal,
state,and local government agencies,and the public and may be made available as part of a public notice as required by Federal law.Submission of
requested information is voluntary,however,if information is not provided the permit application cannot be evaluated nor can a permit be issued.One set of
original drawings or good reproducible copies which show the location and character of the proposed activity must be attached to this application(see sample
drawings and instructions)and be submitted to the District Engineer having jurisdiction over the location of the proposed activity. An application that is not
completed in full%011 be returned.
(ITEMS 1 THRU 4 TO BE FILLED BY THE CORPS)
1.APPLICATION NO. 2.FIELD OFFICE CODE 3.DATE RECEIVED 4.DATE APPLICATION COMPLETE
(ITEMS BELOW TO BE FILLED BYAPPLICANT)
5.APPLICANT'S NAME: 8.AUTHORIZED AGENTS NAME AND TITLE (an agent is not required)
First- NiA Middle- NIA Last- NiA First-HANI Middle- JEAN Last- ToHmE
Company- CITY OF BEAUMONT Company- CITY OF BEAUMONT
E-mail Address- WA E-mail Address- htohme @cibeaamont tx.us
6.APPLICANTS ADDRESS. 9.AGENT'S ADDRESS
Address - 801 MAiN STREET,SUITE 325 Address - 1350 LANGHAM ROAD
City- BEAUMONT State- TEXAS Zip- 77701 Country- USA City- BEAUMONT State- TExAs Zip-mot Country-usA
7.APPLICANTS PHONE NOs.WiARFA CODE. 10.AGENT'S PHONE NOs.W/AREA CODE
a.Residence b.Business c.Fax a.Residence b.Business c.Fax
N/A 409-880-3715 409-86111836 NIA 409-785-3000 409-661.4836
STATEMENT OFAUTHORIZATiON
11.1 hereby authorize, OR.K*M J.TOMME.P.E. to act in rrry behalf as my agent in the processing of this application and to furnish,upon request,
supplemental information in support of this permit application.
APPLICANT'S SIGNATURE DATE
NAME, LOCATION,AND DESCRIPTION OF PROJECT OR ACTIVITY
12,PROJECT NAME OR TITLE (see fisbuctlons)
LAWSON'S CANAL EMERGENCY STAGING AREA
13.NAME OF WATERBODY,IF KNOWN (n ewscauie) 14.PROJECT STREET ADDRESS(if aWbcable)
LAWSON'S CANAL
Address NIA
15.LOCATION OF PROJECT
Latitude:°N 30•097w3 City- BEAUMONT State- TEXAS Zip" 77702
Longitude: °W .94.0"sz
16.OTHER LOCATION DESCRIPTIONS,IF KNOWN (see mstnWhons)
State Tax Parcel ID Municipality Wyor sEAUUOW
Section- Township- Range--
17.DIRECTIONS TO THE SITE
From Interstate 10,travel north 0.25 miles on Pine Street to Marina Drive. Go east on Marina Drive for 0.3 miles and arrive at the entrance gate.
ENG FORM 4345, SEPT 2009 EDITION OF OCT 2004 Is oBsoi_E'rE Proponent:CECW-OR
EXHIBIT"A"
1 B. Nat.ire of Activity (Description of project,include ON natures)
The project will fill that 600 linear foot section of Lawson`s Canal located south of Marina Drive and north of the pump station that fl the
City of Beaumont Water Treatment Plant. The final elevation will be approximately 1-2 feet above the 100-year flood zone elevation.
19. Project Purpose (Describe the reason or purpose of the project,see mstructksrs)
The purpose of the project is to safety stage equipment near the Water Treatment Plant in the event of a hurricane or other disaster.The plant is in the
top 3 items on the City's Critical Infrastructure Key Resources(CtKR)List and Is vital to the health and safety of the citizens and customers of the City of
Beaumont Water Utilities Department.This area is also near the City's new communication center that is also a storm shelter.
USE BLOCKS 20-23 IF DREDGED AND/OR FILL MATERIAL IS TO BE DISCHARGED
20. Reason(s)for Discharge
N/A
21. Type(s)of Material Being Discharged and the Amount of Each Type in Cubic Yards:
Type Type Type
Amount in Cubic Yards Amount in Cubic Yards Amount in Cubic Yards
N/A NIA N/A
22. Surface Area in Acres of Wetlands or Other Waters Filled (see instructions)
Acres N/A
Or
Liner Feet N/A
23. Description of Avoidance,Minimization,and Compensation (see instructions)
N/A
24. Is Any Portion of the Work Already Complete? Yes 0 No.D IF YES,DESCRIBE THE COMPLETED WORK
The existing water supply channel was backfilled and the fill was then compacted in 12" lifts.
25. Addresses of Adjoining Property Owners,Lessees,Etc.,Whose Property Adjoins the Waterbody(if more than can be entered here,please attach a supplemerdai list).
Address— CITY OF BEAUMONT, 801 MAIN STREET,SUITE 325
City— BEAUMONT State— 'TEXAS Zip— 77701
26. List of Other Certifications or Approvals/Denials Received from other Federal,State,or Local Agencies for work Described in This Application.
AGENCY TYPE APPROVAL' IDENTIFICATION NUMBER DATE APPLIED DATE APPROVED DATE DENIED
NIA
'Would include but is not restricted to zoning,building,and flood plan permits
27. Application is hereby made for a permit of permits to authorize the work described in this application. I certify that the information in this application is
complete and accurate. I further certify that I possess the authority to undertake the work described herein or am acting as the duly authorized agent of the
applicant.
SIGNATURE OF APPLICANT DATE SIGNATURE OF AGENT DATE
The application must be signed by the poison who desires to undertake the proposed activity(applicant)or it may be signed by a duty authorized agent if the
statement in block 11 has been filed out and signed.
18 U.S.C.Section 1001 provides that: Whoever,in any manner within the jurisdiction of any department or agency of the United States knowingly and willfully
falsifies,conceals,or covers up any trick,scheme,or disguises a material tact or makes any false,fictitious or fraudulent statements or representations or
makes or uses any false writing or docurnent knowing same to contain any false, fictitious or fraudulent statements or entry, shall be fined not more than
$10,000 or imprisoned not more than five years or both.
F_NG FORM 4345.SEPT 2009
TOLLING AGREEMENT
WHEREAS, the United States of America,on behalf of the United States Army Corps of
Engineers(Corps)may file a complaint against the City of Beaumont("potential defendant") for,
inter alia, alleged violations of Section 404 of the Clean Water Act, 33 U.S.C. Section 1.344, at a
property located approximately 0.2 mile north of the intersection of Brakes Bayou and Interstate
highway 10,Beaumont, Jefferson County, 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 W14EREAS both parties acknowledge the requirement found at 33 C.F.R.
33 l.11(c) for an applicant for an ATF permit to provide a signed tolling agreement;
EXHIBIT "B"
'FHEREFORr, 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 ATr permit application and the final Corps decision (as defined at 33 CFR
331.1.0),plus one year thereafter, will not be included in calculating any statute of limitations
that might be applicable to die alleged statutory violation(s)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 lathes or
other principle 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 frst 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
frorn filing a complaint regarding any alleged statutory violation(s) 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 acknowledgment 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.
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:
P. Alex Petty DATE
District Counsel
Galveston District,U.S. Army Corps of Engineers
FOR the City of Beaumont("potential defendant")
City of Beaumont __ DATE