United States District Court, S.D. West Virginia, Charleston
RON FOSTER, and FOSTER FARMS, LLC, and MARKETING & PLANNING SPECALISTS LIMITED PARTNERSHIP, Plaintiffs,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and SCOTT PRUITT, in his official capacity as Administrator, Defendants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
is the motion for summary judgment filed February 21, 2017,
by the United States Environmental Protection Agency
(“EPA”) and Scott Pruitt, in his official
capacity as Administrator (collectively
“defendants”) and the motion for summary judgment
as to defendants' counterclaim, filed on February 21,
2017, by Ron Foster (“Foster”), Foster Farms,
LLC, (“Foster Farms”) and Marketing &
Planning Specialists Limited Partnership (“Marketing
& Planning Specialists”) (collectively
“plaintiffs”). This case presents a challenge by
plaintiffs to a Clean Water Act (“CWA”)
Administrative Compliance Order (“ACO”) under the
Administrative Procedures Act and defendants'
counterclaim which seeks injunctive relief and a civil
penalty under the CWA.
September 2009, Ron Foster, general partner and shareholder
member of Foster Farms and Marketing & Planning
Specialists, purchased two tracts of property in Wood County,
West Virginia, north of Lubeck, West Virginia, known as
“Neal Run Crossing, ” (hereinafter “Neal
Run Crossing”). Foster purchased Neal Run Crossing out
of the bankruptcy estate of the Endurance Group, LLC
(“Endurance”) and assigned one parcel to Foster
Farms and the other to Marketing & Planning Specialists.
2d Am. Comp. ¶ 8(d)-(f); Defs.' Mem. Ex. 2;
Administrative Record (“AR”) 47 at ¶ 000384.
2009, when Neal Run Crossing was owned by Endurance, a stream
was relocated on a portion of the property known as Pad 1
(being one of five such pads) without a Section 404 permit to
do so, in violation of the Clean Water Act, 33 U.S.C. §
1251 et seq. 2d Am. Comp. ¶¶ 14, 16-17. Endurance
declared bankruptcy before the EPA could begin enforcement
proceedings and the bankruptcy court permitted the sale of
the Neal Run Crossing Property to Foster clear of Clean Water
Act liability as long as Foster agreed to spend $50, 000 to
restore the violations committed by Endurance. Pls.' Mem.
Ex. 9 (Deeds with Sale Order dated October 29, 2009). A
restoration plan was eventually agreed on by the EPA and
Foster, and was completed in 2011. Defs.' Mem. Ex. 10
(Lutte Decl.) at ¶ 13.
September 9, 2010, EPA inspectors Stephanie Andreescu and
Todd Lutte visited the Neal Run Crossing property. Defs.'
Mem. Ex. 4 (Andreescu Decl.) ¶¶ 11, 13; Lutte Decl.
at ¶ 14. According to defendants, their visit related to
complaints about flooding on neighbors' land caused by
Endurance's movement of the Pad 1 stream. Defs.' Mem.
in Supp. of Mot. for Summary Judgment (“Defs.'
Mem.”) at 7; Andreescu Decl. at ¶¶ 15-16;
Lutte Decl. ¶¶ 15-16. During this visit, they saw a
billboard that advertised the sale of portions of the Neal
Run Crossing property. Defs.' Mem. at 7; Andreescu Decl.
at ¶¶ 15-16; Lutte Decl. ¶¶ 15-16;
Andreescu Decl. at Attach. C. The sign included a
topographical map, which indicated that fill had or would be
placed on streams in Pad 4, which is the focal point of this
dispute. Defs.' Mem. at 7; Andreescu Decl. at
¶¶ 15-16; Lutte Decl. ¶¶ 15-16; Andreescu
Decl. at Attach. C.
Neal Run Crossing property has been divided into five
“pads” for development purposes. Stipulation
¶ 15. The alleged CWA violations at issue in this case
occurred on Pad 4, which is also sometimes referred to as
“the Site.” Id. at ¶ 4. Foster
Farms and Marketing and Planning Specialists each own part of
Pad 4. Id. at ¶ 16. Before
plaintiffs developed Pad 4, four streams, known as
“relevant reaches, ” RR1, RR2, RR3, and RR4
existed on the Site. Defs.' Mem. Ex. 25; Defs.' Ex.
20 at ¶ 0000483-0484; Dow Decl. ¶ 20. Before being
filled, RR1, RR2, and RR3 flowed into RR4. Defs.' Mem.
Ex. 20 at ¶ 0000483. As RR4 exited the western boundary
of the Site, its path crossed a neighbor's hayfield and
then joined the First Unnamed Tributary to Neal Run (also
known as the Blackwell Creek or Blackwell Tributary). Ex. 7
to Defs.' Mem. (Decl. of Stokely) ¶ 17; Defs.'
Ex. 28 (Carr Dep.) 12, 24, 28-29; Defs.' Ex. 9 (Moore
Dep.) 19, 22, 33-34.
First Unnamed Tributary joins the Second Unnamed Tributary to
Neal Run. Stipulation ¶ 25. The Second Unnamed Tributary
is a relatively permanent water, which flows into Neal Run.
Id. at ¶ 26. Neal Run is a relatively permanent
water, which flows into the Little Kanawha River.
Id. at ¶ 27. The Little Kanawha River flows
into the Ohio River at Parkersburg, West Virginia.
Id. The portion of Neal Run, from its confluence
with the Little Kanawha River, has been identified by the
Corps as a “navigable water of the United States”
for purposes of Section 10 of the Rivers and Harbors Act of
1899. Id. The Little Kanawha River is
navigable-in-fact, and has been identified as a
“navigable water of the United States” for
purposes of Section 10 of the Rivers and Harbors Act of 1899.
Id. at ¶ 29. The approximate distance from the
confluence of RR4 and the First Unnamed Tributary of Neal Run
to the designated navigable portion of Neal Run is 3.1 miles.
Stokely Decl. ¶ 21.
case revolves around whether RR1, RR2, RR3, and RR4 are
“waters of the United States” under the CWA.
Defendants assert that RR4 is a relatively permanent water as
defined in the plurality opinion of four Justices in
Rapanos v. U.S., and that RR1, RR2, RR3, and RR4
have a significant nexus with a navigable water and thus meet
the test contained in Justice Kennedy's concurring
opinion in Rapanos, 547 U.S. 715 (2006). Plaintiffs
dispute these assertions.
and Lutte approached the Site through a field on adjoining
property next to Pad 4 and discovered a stream channel that
had been partially buried with dirt and vegetation.
Defs.' Mem. at 7-8; Andreescu Decl. at ¶ 18; Lutte
Decl. ¶¶ 17, 19. Andreescu and Lutte observed that
the portion of the stream that was not buried had a bed,
bank, an ordinary high water mark, and “other
attributes associated with the regular presence of flowing
water, ” of which Andreescu took photos. Defs.'
Mem. at 8; Andreescu Decl. at ¶¶ 19, 21; Lutte
Decl. ¶ 17; Andreescu Decl. at Attach. D, E.
who was later identified as Bryan Scott Moore, approached the
inspectors while they were observing the Site and stated that
a stream previously flowed on the Site. Defs.' Mem. at 8;
Pls.' Mem. at 8; Andreescu Decl. at ¶¶ 19, 21;
Lutte Decl. ¶ 17. Moore attempted to take Andreescu and
Lutte to the source of the stream, but they were unable to
locate it due to thick vegetation. Defs.' Mem. at 8;
Andreescu Decl. at ¶ 20. When they returned to the Site,
the inspectors encountered men with a bulldozer, one of whom
they later learned was David Walters of Walters Excavating.
Defs.' Mem. at 8; Andreescu Decl. at ¶ 21; Lutte
Decl. at ¶ 19. The men indicated that they had filled
the stream and Walters stated that he had not obtained a
permit for the work. Lutte Decl. ¶ 19; Defs.' Mem.
Ex. 8 (Walters Dep.) at 99-100. The men from Walters
Excavating were preparing “the area for the
construction of a storm water control cell.” Pls.'
Mem. at 8.
declaration states that while he does not specifically
remember what he said to Walters, his “usual practice
would be to inform him of applicable law and the fact that a
permit may be required.” Lutte Decl. at ¶ 19.
Walters testified that Lutte or Andreescu told him that they
“may be in violation” for filling in the stream
and that they needed a 404 permit for the work done.
Defs.' Ex. 27 (David Walters Dep.) at 106.
leaving the Site, Andreescu observed the stream channel
exiting Pad 4 and continuing towards a hayfield. Andreescu
Decl. ¶ 22. Andreescu and Lutte walked across the
hayfield and noted that the stream channel lost its bed,
bank, and ordinary high water mark in the middle of the
field. Id. A defined bed, bank, and ordinary high
water mark re-formed on the western side of the field and
joined the First Unnamed Tributary to Neal Run. Id.
Lutte and Andreescu left, David Walters informed Foster of
his conversation with them. Id. at 107. Foster and
Walters both spoke with Dan Metheny of Fox Engineering,
Foster's engineering consultant for the project.
Pls.' Mem. at 9; Walters Dep. at 107-08; September 9,
2010 email between Foster and Metheny (Exhibit 28 to
Pls.' Mem.). Metheny stated that he checked the plans and
did not believe a permit was required at the Pad 4 location.
Pls.' Mem. at 9; Sept. 9 email between Foster and
Metheny. After pausing operations for several days, Marketing
& Planning Specialists continued the construction
operations. Pls.' Mem. at 9; Defs.' Mem. at 8;
Walters Dep. at 74:18-87:14; 92:4-93:8. Foster's
contractors placed fill in three additional streams (RR1,
RR2, and RR3) on the Site and built a sediment pond.
Defs.' Mem. at 8, Walters Dep. at 74:18-87:14; 92:4-93:8;
Andreescu Decl. ¶ 32; Lutte Decl. ¶ 22.
fall 2010, the EPA sent information requests pursuant to
Section 308 of the Clean Water Act to Foster Farms, Walters
Excavating, and Fox Engineering in order to determine whether
and to what extent Clean Water Act violations occurred in the
Pad 4 area. Andreescu Decl. ¶ 27. Responses to the
requests were provided in December 2010. Id. EPA
officials also conducted two additional Site visits to the
Pad 4 area in May 2011 and September 2011. Id. at
¶¶ 32, 35.
March 2011, plaintiffs commissioned a delineation report,
which was conducted by Jacob White of Randolph Engineering
and was submitted to the United States Army Corps of
Engineers (“the Corps”) for input into their
jurisdictional determination (“JD”). Pls.'
Mem. at 10; Andreescu Decl. Attach. F (“Randolph
Report”), AR 61. White determined that the Pad 4 site
likely contained jurisdictional waters. Id. at
USEPA000418. White's report was then forwarded to the
EPA. Defs.' Mem. at 9.
October and December 2011, the EPA and the Corps discussed
whether plaintiffs' discharges would be addressed through
an EPA enforcement action or an after-the-fact permit issued
by the Corps. Defs.' Mem. at 9; Andreescu Decl. ¶
37; Lutte Decl. ¶ 25. Defendants contend that while the
EPA began drafting the ACO in December 2011, the EPA was
still “urg[ing] the Corps to take lead agency status,
” although the Corps ultimately decided not to do so.
Defs.' Mem. at 9; Andreescu Decl. ¶ 36; Lutte Decl.
this time, Pam Lazos of the EPA represented to Foster that
the Corps refused to issue a permit because the violations at
the Site were so “egregious.” Pls.' Mem. at
11; Pls.' Mem. Ex. 32 (October 18, 2011 email from Lazos
to Foster). In an email sent in March, 2012, Richard Hemann,
who worked for the Corps, informed Andreescu that the Corps
“did not wish to verify the delineation if the EPA will
not consider improvements to unauthorized work as
compensatory mitigation for other unauthorized work.”
Pls.' Mem. at 12-13; Pls.' Mem. Ex. 37.
January 3, 2012, the EPA informed Foster that the case was
proceeding as an EPA enforcement action. Defs.' Mem. at
9; Defs.' Ex. 17 (AR 84) at ¶ 0000632. On January
24, 2012, the EPA issued an ACO to Foster Farms stating that
there had been unauthorized discharges of fill materials to
waters of the United States in Pad 4. Defs.' Mem. at 9;
Andreescu Decl. ¶ 37 & Attach. K; Lutte Decl. ¶
26. Although the EPA had already assumed lead agency status,
the Corps finished its analysis of the Site, which defendants
state was at the request of Foster. Defs.' Mem. at 10;
Andreescu Decl. Attach O. The Corps concluded that the four
streams on Pad 4 that were filled by plaintiffs were covered
by the CWA, and informed plaintiffs of this in a February 22,
2012 letter. Defs.' Mem. at 10; Andreescu Decl. Attach.
the Corps' jurisdictional analysis provided an
administrative appeal process, plaintiffs' appealed the
Corps' jurisdictional determination. Pls.' Mem. at
14. The EPA issued a letter on April 5, 2012, which stated
that due to the EPA's issuance of the ACO on January 24,
2012, it was “superseding the Corps' authority to
verify the jurisdictional status” at the Site, and
reaffirmed its findings that RR1, RR2, RR3, and RR4 were
jurisdictional waters. Pls.' Mem. Ex. 44 (April 5, 2012
Letter). The Corps' denied plaintiffs' appeal because
the EPA had assumed the role of lead agency for the Site. See
Pls.' Mem. Ex. 45 (Letter from Margaret Burcham,
Brigadier General to Foster); see also 33 C.F.R. §
331.11 (stating that a jurisdictional determination by the
Corps cannot be appealed when the EPA has assumed lead agency
status). The EPA's ACO did not permit an appeal. On May
8, 2014, Foster received a letter from the Department of
Justice proposing plaintiffs pay a $414, 000 penalty and
remediate the Site, or face an enforcement litigation and
more penalties. Pls.' Mem. Ex. 57.
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Material” facts are those
necessary to establish the elements of a party's cause of
action. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); see also News & Observer Publ'g
Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576
(4th Cir. 2010) (same). A “genuine” dispute of
material fact exists if, in viewing the record and all
reasonable inferences drawn therefrom in a light most
favorable to the non-moving party, a reasonable fact-finder
could return a verdict for the non-moving party.
Anderson, 477 U.S. at 248.
moving party has the initial burden of showing --“that
is, pointing out to the district court -- that there is an
absence of evidence to support the non-moving party's
case.” Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). If the moving party satisfies this burden, then
the non-moving party must set forth specific facts,
admissible in evidence, that demonstrate the existence of a
genuine issue of material fact for trial. See Id. at
322-23; Fed.R.Civ.P. 56(c), (e).
that are “drawn from the underlying facts . . . must be
viewed in the light most favorable to the party opposing the
motion.” United States v. Diebold, Inc., 369
U.S. 654, 655 (1962). A party is entitled to summary judgment
if the record as a whole could not lead a rational trier of
fact to find for the non-moving party. Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Conversely,
summary judgment is inappropriate if the evidence is
sufficient for a reasonable fact-finder to return a verdict
in favor of the non-moving party. Anderson, 477 U.S.
Clean Water Act
1972, Congress passed the CWA “to restore and maintain
the chemical, physical, and biological integrity of the
Nation's waters.” 33 U.S.C. § 1251. The CWA
prohibits the discharge of pollutants into navigable waters,
which are defined as “the waters of the United States,
including the territorial seas.” 33 U.S.C. §
1362(7). The Supreme Court has interpreted the term
“navigable waters” on multiple occasions, most
recently in Rapanos, 547 U.S. 715. In
Rapanos, no majority of the Court agreed as to how
to define navigable waters.
plurality opinion of four Justices, authored by Justice
Scalia, limited CWA jurisdiction to traditional navigable
waters, waters connected to traditional navigable waters that
have a “relatively permanent flow, ” and wetlands
that have a “continuous surface connection” to
relatively permanent waters. Id. at 742. Justice
Kennedy concurred in the judgment but stated that
“navigable waters” extended to “a water or
wetland [that] . . . possesses a ‘significant
nexus' to the waters that are or were navigable in fact
or that could reasonably be made so.” Id. at
780 (Kennedy, J., concurring) (citing Sold Waste Agency
of Northern Cook Cnty. v. Army Corps of Engineers,
(“SWANCC”) 531 U.S. 159 (2001). The four
dissenting Justices concluded that “waters of the
United States” included all tributaries and wetlands
that satisfied either definition. Id. at 810.
courts are divided on how to interpret navigable waters
post-Rapanos. The 2008 Waters of the United States
Guidance issued by the Corps and EPA in light of Rapanos
states that there is CWA jurisdiction if either the
plurality's relatively permanent waters test or Justice
Kennedy's significant nexus test is satisfied. See
Pls.' Ex. 6 (Clean Water Act Jurisdiction Following the
U.S. Supreme Court's Decision in Rapanos) (“2008
Waters of the United States Guidance”) at 1. The United
States Courts of Appeals for the First, Third, and Eighth
Circuits have found that a water is subject to the CWA if it
meets either the plurality test or Justice Kennedy's
test. See United States v. Donovan, 661 F.3d 174
(3d. Cir. 2011); United States v. Bailey, 571 F.3d
791, 797-799 (8th Cir. 2009); United States v.
Johnson, 467 F.3d 56 (1st Cir. 2006). The United States
Courts of Appeals for the Seventh, Ninth, and Eleventh
Circuits have determined that a water is subject to the CWA
if it meets Justice Kennedy's test only. See Northern
California River Watch v. City of Healdsburg, 496 F.3d
993 (9th Cir. 2007) cert. denied, 552 U.S. 1180 (2008);
U.S. v. Robinson, 505 F.3d 1208 (11th Cir. 2007);
United States v. Gerke Excavating, Inc., 464 F.3d
723 (7th Cir. 2006) (per curiam). In Precon Development
Corporation v. U.S. Army Corps of Eng'rs.
(“Precon I”, 633 F.3d 278 (4th Cir. 2011),
because the parties agreed that Justice Kennedy's
“significant nexus” test governed, the Fourth
Circuit did not address “the issue of whether the
plurality's ‘continuous surface connection'
test provides an alternate ground upon which CWA jurisdiction
can be established.” Id. at 288. In
Deerfield Plantation Phase II-B Property Owners
Association v. U.S. Army Corps of Engineers (“Precon
II”), 501 Fed. App'x 268, 275 (4th Cir. 2012),
our court of appeals found that the Corps did not err in
finding that there was no CWA jurisdiction under either the
plurality's or Justice Kennedy's Rapanos test.
argue that because three circuits have found that either test
satisfies jurisdiction under the CWA, and because the Fourth
Circuit has adopted the parties' agreement in Precon I
that a water that satisfies Justice Kennedy's test is a
“water of the United States, ” and, according to
defendants, has implied it would accept the plurality's
test in Precon II, a finding that either test is met in this
case satisfies jurisdiction under the CWA. Pls.' Mem. at
argue that only the Rapanos plurality's relative
permanence test is applicable for a number of reasons. First,
plaintiffs state that although our court of appeals applied
the significant nexus test in Precon I, and applied both
tests in Precon II, it did so only because the parties agreed
that one or both tests were controlling. Pls.' Mem. At 24
(citing Precon I, 633 F.3d at 288 and Precon II, 501 Fed.
App'x at 273). Plaintiffs contend that they do not agree
with defendants as to which test should govern and maintain
that “the plurality opinion's ‘relatively
permanent water' standard should apply because the Pad 4
area is not a wetland and this test provides more readily
identifiable criteria for ascertaining whether CWA
jurisdiction exists.” Pls.' Mem. at 24. However,
the significant nexus test framed by Justice Kennedy is not
limited solely to wetlands. In Rapanos, Justice
Kennedy did not confine the significant nexus test to
wetlands, stating that “a water or wetland” that
“possesses a ‘significant nexus'” to
navigable waters is a jurisdictional water under the CWA. 547
U.S. at 759 (citing SWANCC, 531 U.S. at 167, 172) (emphasis
added); see also 547 U.S. at 767 (“[I]n some instances
. . . the connection between a nonnavigable water or wetland
and a navigable water may be so close, or potentially so
close, that the Corps may deem the water or wetland a
‘navigable water' under the Act. In other
instances, . . . there may be little or no
connection.”) (Kennedy, J., concurring) (emphasis
added). Accordingly, the court finds plaintiffs' argument
that the significant nexus test should be disregarded is
first time in their reply to defendants' response to
plaintiffs' motion for summary judgment on the
counterclaim, plaintiffs' assert that “Although
Precon [II] holds that satisfaction of either Rapanos test is
sufficient, . . . Precon [II] is at odds with U.S. Supreme
Court precedent for the proper application of split plurality
opinions.” Pls. Reply at 3-4, n. 3. According to them,
the plurality's test is the narrowest and thus is
controlling under Marks v. United States, 430 U.S.
188 (1977). Id.
noted above, circuit courts are divided on whether to apply
the plurality's test, Justice Kennedy's test, or both
post-Rapanos. The Courts of Appeal for the Seventh
and Eleventh Circuits have found only Justice Kennedy's
opinion to be controlling based on the Supreme Court's
decision in Marks. Gerke Excavating Inc., 464 F.3d at 724-25;
Robinson, 505 F.3d at 1221-22. In Marks, the Court directed
that “[w]hen a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that
position taken by those Members who concurred in the
judgments on the narrowest grounds.” Id. at
193 (internal citations and quotations omitted). According to
those circuits courts, Justice Kennedy's view is
controlling because it is the least restrictive of federal
jurisdiction. Gerke Excavating Inc., 464 F.3d at 724-25;
Robinson, 505 F.3d at 1221-22.
Courts of Appeals for the First, Third and Eighth Circuits
instead have found Marks to be inapposite because neither the
plurality opinion nor Justice Kennedy's concurrence
relied on a narrower ground than the other did. Johnson, 467
F.3d at 62-64; Bailey, 571 F.3d at 799; Donovan, 661 F.3d at
182. The court in Donovan describing the conundrum that the
Johnson court faced explained:
Judge Lipez, writing for the majority of the panel in
Johnson, disagreed that the “narrowest grounds”
in the Marks sense necessarily means those grounds least
restrictive of federal jurisdiction. The court in Johnson
stated that “it seems just as plausible to conclude
that the narrowest ground of decision in Rapanos is the
ground most restrictive of government authority . . . because
that ground avoids the constitutional issue of how far
Congress can go in asserting jurisdiction under the Commerce
Clause.” 467 F.3d at 63 (emphasis added). Even if one
were to conclude that the opinion resting on the narrowest
grounds is the one that relies on “less sweeping
reasons than the other”-meaning that it requires the
same outcome (here, the presence of federal regulatory
jurisdiction) in only a subset of the cases that the other
opinion would, and in no other cases-the court in Johnson
concluded that Marks is unhelpful in determining which
Rapanos test controls. Id. at 64. This is because
Justice Kennedy's test would find federal jurisdiction in
some cases that did not satisfy the plurality's test, and
vice versa. Id. For example, if there is a small
surface water connection between a wetland and a remote
navigable water, the plurality would find jurisdiction, while
Justice Kennedy might not. Furthermore, a wetland that lacks
a surface connection with other waters, but significantly
affects the chemical, physical, and biological integrity of a
nearby river would meet Justice Kennedy's test but not
the plurality's. See Id. It is therefore
difficult, if not impossible, to identify the
Donovan, 661 F.3d at 181.
those courts looked to the suggestion by Justice Stevens
contained in his Rapanos dissent as a “simple and
pragmatic way to assess what grounds would command a majority
of the Court.” Id. (citing Johnson, 467 F.3d
at 64). Justice Stevens' dissent, which was joined by
three other Justices, states:
I would affirm the judgments in both cases, and respectfully
dissent from the decision of five Members of this Court to
vacate and remand. I close, however, by noting an unusual
feature of the Court's judgments in these cases. It has
been our practice in a case coming to us from a lower federal
court to enter a judgment commanding that court to conduct
any further proceedings pursuant to a specific mandate. That
prior practice has, on occasion, made it necessary for
Justices to join a judgment that did not conform to their own
views. In these cases, however, while both the plurality and
Justice Kennedy agree that there must be a remand for further
proceedings, their respective opinions define different tests
to be applied on remand. Given that all four Justices who
have joined this opinion would uphold the Corps'
jurisdiction in both of these cases - and in all other cases
in which either the plurality's or Justice Kennedy's
test is satisfied - on remand each of the judgments should be
reinstated if either of those tests is met.
Rapanos, 547 U.S. at 810 (Stevens, J., dissenting).
accordance with these instructions, these circuits have
decided to follow “Justice Stevens' instructions
and look to see if either Rapanos test is satisfied.”
Donovan, 661 F.3d at 183. This “ensures that lower
courts will find jurisdiction in all cases where a majority
of the Court would support such a finding.” Johnson,
467 F.3d at 64. The Johnson court also indicated that the
Supreme Court has strayed away from the Marks test, citing
cases where “members of the Court have indicated that
whenever a decision is fragmented such that no single opinion
has the support of five Justices, lower courts should examine
the plurality, concurring and dissenting opinions to extract
the principles that a majority has embraced”; the court
further observed that Justice Stevens' failure to refer
to Marks “indicates that he found its framework
inapplicable.” 467 F.3d at 65-66 (citing cases).
court finds the analysis of the Courts of Appeals for the
First, Third, and Eighth Circuits more persuasive, as
affirmed by the Fourth Circuit's willingness to apply the
significant nexus test in Precon I and consider both tests in
Precon II. That the plurality's test may find
jurisdiction where Justice Kenendy's test would not and
vice versa makes determining which test is the
“narrowest” under Marks most difficult. By
allowing for jurisdiction under either test, support will be
had by a majority of the Rapanos Court. “If the
[waters] have a continuous surface connection with
‘waters of the United States, ' the plurality and
dissenting Justices would combine to uphold the Corps'
jurisdiction over the land, whether or not the [waters] have
a ‘substantial nexus' (as Justice Kennedy defined
the term) with the covered waters. If the [waters] (either
alone or in combination with similarly situated lands in the
region) significantly affect the chemical, physical, and
biological integrity of ‘waters of the United States,
' then Justice Kennedy would join the four dissenting
Justices from Rapanos to conclude that the [waters] are
covered by the CWA, regardless of whether the [waters] have a
continuous surface connection with ‘waters of the
United States.' Finally, if neither of the tests is met,
the plurality and Justice Kennedy would form a majority
saying that the [waters] are not covered by the CWA.”
See Donovan, 661 F.3d at 183.
in determining whether the Pad 4 streams are subject to the
CWA under both plaintiffs' APA claim and defendants'
enforcement counterclaim, the court will find jurisdiction if
either the Rapanos plurality test or Justice Kennedy's
test is met.
make several additional arguments as to why only the Rapanos
plurality opinion applies to this case. In 2015, the EPA and
the Corps amended the definition of “waters of the
United States” in a final rule entitled “Clean
Water Rule: Definition of ‘Waters of the United
States'”. See 80 Fed. Reg. 37, 054 (June 29, 2015).
On February 28, 2017, President Trump issued an executive
order, which instructs the Administrator of the EPA and
Assistant Secretary of the Corps to review the Clean Water
Rule “and publish for notice and comment a proposed
rule rescinding or revising the rule, as appropriate and
consistent with law.” Pls.' Resp. Ex. 1 (Feb. 28,
2017 Executive Order). The executive order also directed the
Administrator of the EPA and Assistant Secretary of the Corps
to consider interpreting “navigable waters”
consistent with the plurality's Rapanos opinion.
Id. Plaintiffs acknowledge that this case is based
on the 2008 Waters of the United States Guidance, and not the
2015 Clean Water Rule to which the Executive Order applies,
but argues “it would make little sense for the Kennedy
test to still be applied here.” Pls.' Resp. at 3;
Feb. 28, 2017 Executive Order. Plaintiffs additionally assert
that the 2008 Waters of the United States Guidance issued by
the EPA and the Corps after Rapanos is not legally
enforceable because it was never submitted to Congress for
final approval. Id.
as noted by defendants, the 2015 EPA Clean Water Rule was not
in effect when plaintiffs' discharges occurred and
therefore does not govern this case. See Defs.' Reply at
2. Because the 2015 Clean Water Rule does not guide this
case, neither does President Trump's February 28, 2017
Executive Order. Moreover, because the court bases its
decision to utilize both the relative permanence test and the
significant nexus test on Rapanos itself and not the 2008
Waters of the United States Guidance, it is irrelevant that
it was not submitted to Congress for final approval.
Clean Water Act Enforcement Counterclaim
and plaintiffs both move for summary judgment on
defendants' counterclaim, which seeks injunctive relief
and civil penalties against defendants for their violation of
order to prevail under the CWA, defendants must establish
that plaintiffs are: (1) persons that (2) discharged a
pollutant (3) from a point source (4) to a water of the
United States (5) without a CWA Section 404 permit. 33 U.S.C.
§§ 1311(a), 1344(a).
Persons under the CWA
the CWA, “person” means “an individual,
corporation, partnership, association, State, municipality,
commission, or political subdivision of a State, or any
interstate body.” 33 U.S.C. § 1362(5).
do not dispute that they are “persons” under the
CWA. Foster is a member of Foster Farms and a limited partner
and employee of Marketing & Planning Specialists. AR 47
at ¶ 000384; Pls.' Mem. Ex. 18 (Foster Farms
Interrogatory Responses) at 3; Pls. Mem. Ex. 19 (M&PS
Interrogatory Responses) at 2. Foster Farms and Marketing
& Planning Specialists own the Site. 2d Am. Comp. ¶
8(d)-(f). Foster hired Fox Engineering to design the plans
for the pad construction and hired Walters excavation to
clear, fill, and level the Site. Pls.' Mem. Ex. 20
(Metheny Dep.) at 28-30; 90-91. The court thus finds that
plaintiffs are “persons” under the CWA.
Discharge of a Pollutant
contend that plaintiffs' activities at the Site
“resulted in a discharge of pollutants, specifically
fill material.” Defs.' Mem. at 12.
defines “discharge of a pollutant” as “any
addition of any pollutant to navigable waters from any point
source. . . .” 33 U.S.C. § 1362(12). Pollutant
means “dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into
water.” 33 U.S.C. § 1362(6). Courts have concluded
that fill material is a pollutant under the CWA and
plaintiffs do not contest this assertion. See, e.g.,
United States v. Pozsgai, 999 F.2d 719, 724 (3d. Cir.
1993). Defendants have made a prima facie showing that
plaintiffs discharged pollutants within the meaning of the
“From a Point Source”
assert that the “bulldozers, dump trucks, and other
earthmoving equipment . . . used by Mr. Walters and his
employees to deposit rock, dirt, and other fill material at
the Site are point sources. Defs.' Mem. at 13.
source is defined in the CWA as “any discernible,
confined and discrete conveyance, including but not limited
to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft, from
which pollutants are or may be discharged.” 33 U.S.C.
§ 1362(14). Under the CWA, “[t]he concept of a
point source embraces the broadest possible definition of any
identifiable conveyance from which pollutants might enter
waters of the United States. As such, bulldozers, backhoes,
draglines, and other earthmoving equipment are all point
sources under the CWA.” United States v.
Lambert, 915 F.Supp. 797, 802 (S.D. W.Va. 1996)
(internal citations and quotations omitted). The court is
satisfied that plaintiffs' actions qualify as discharge
“from a point source” and plaintiffs do not
dispute this contention.
Waters of the United States
the CWA, “navigable waters” are defined as
“waters of the United States.” 33 U.S.C. §
1362(7). As discussed, the court will apply both the
relatively permanent flow test and the significant nexus test
to determine whether the Pad 4 streams are waters of the
Relatively Permanent Flow
parties do not dispute that waters that are connected to
traditional navigable waters that have a “relatively
permanent flow” are jurisdictional waters under the
CWA. Defs.' Mem. at 13; Pls.' Mem. at 23; see
Rapanos, 547 U.S. at 732. The plurality in Rapanos
explained that jurisdiction under this test was limited to
“relatively permanent, standing or flowing bodies of
water . . . forming geologic features” and not
“ordinarily dry channels through which waters
occasionally or intermittently flows.”
Rapanos, 547 U.S. at 732. The plurality further
elaborated that they did not “necessarily exclude
streams, rivers, or lakes that might dry up in extraordinary
circumstances, such as drought. . . . [or] seasonal rivers,
which contain continuous flow during some months of the year
but no flow during dry months.” Id. at 732, n.
5 (internal quotations omitted).
discussed, RR4 is a stream that crosses Pad 4 which was
filled with dirt, rock and other materials by plaintiffs.
RR1, RR2, and RR 3 flow into RR4. RR4 then exits the western
boundary of Pad 4 and its path crosses a neighbor's
hayfield and then joins the First Unnamed Tributary to Neal
assert that prior to being filled, RR4 had a relatively
permanent seasonal flow. Defs.' Mem. at 15. Plaintiffs do
not dispute defendants' contention that RR4 once flowed
seasonally on the Site. Defs.' Mem. at 16. Indeed, in
reviewing aerial imagery prior to being filled,
plaintiffs' expert Dane Pehrman found that “there
was a defined channel with seasonal flow within the
topographic depression that flows from the Foster
site.” Defs.' Mem. Ex. 61 (Pehrman Report) at 7.
Drs. David Arscott and Charles Dow, who are defendants'
experts on stream ecology and hydrology, concluded that RR4
was a seasonal stream prior to being filled based on their
finding of water-dependent lifeforms in the undisturbed
reaches of the stream and other similar streams on the Neal
Run Crossing property. Defs.' Mem. at 16-17; Defs.'
Ex. 24 (“Arscott Decl.”) at ¶ 45. Based on
Dr. Arscott's findings, he believes that prior to being
filled, RR4 flowed for approximately 4-8 months in
non-drought years. Id.
RR4 flowed seasonally on the Site is further supported by
Randolph Engineering's stream delineation report, which
classified RR4 as an intermittent stream because it showed
the same flow characteristics as RR5 and RR10 (which were
viewed as similar, unfilled streams on the Site), which White
observed and classified as intermittent, and because it
received contributing flow from three ephemeral streams, RR1,
RR2, and RR3. Pls.' Mem. Ex. 25 (“White
Dep.”) at 50. In addition, the Corps and the EPA
independently determined that RR4 was a relatively permanent
water. The Corps conducted its own analysis and verified
Randolph Engineering's delineation and concluded that RR4
was an intermittent-seasonal stream based in part on the
watershed's size and the characteristics of RR5 and RR10,
which are similar watersheds located on Pads 4 and 5, and
thus concluded it was a relatively permanent water.
Defs.' Mem. at 17; Andreescu Decl. Attach. O
(“Corps JD Letter”). During their Site visit on
September 9, 2010, Andreescu and Lutte observed RR4's
stream channel emerging from the disturbed area with a bed,
banks and “ordinary high water ...