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Foster v. United States Environmental Protection Agency

United States District Court, S.D. West Virginia, Charleston

August 14, 2017

RON FOSTER, and FOSTER FARMS, LLC, and MARKETING & PLANNING SPECALISTS LIMITED PARTNERSHIP, Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and SCOTT PRUITT, in his official capacity as Administrator, Defendants.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr. United States District Judge.

         Pending 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.

         I. Background

         In 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.

         In 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.

         On 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.[1]

         The 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.[2] 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.

         The 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.

         This 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.

         Andreescu 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.

         A man, 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.

         Lutte's 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.

         When 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.

         After 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.

         In late 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.

         In 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.

         Between 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. ¶ 25.

         During 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.

         On 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. O.

         Because 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.

         II. Governing Standard

         Summary 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.

         The 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).

         Inferences 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. at 248.

         III. Discussion

         A. The Clean Water Act

         In 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.

         The 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.

         Circuit 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.

         Defendants 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 13-14.

         Plaintiffs 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 without merit.

         For the 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.

         As 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.

         The 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 “narrowest” approach.

Donovan, 661 F.3d at 181.

         Instead, 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).

         In 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).

         The 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.

         Accordingly, 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.

         Plaintiffs 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.

         However, 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.

         B. Clean Water Act Enforcement Counterclaim

         Defendants and plaintiffs both move for summary judgment on defendants' counterclaim, which seeks injunctive relief and civil penalties against defendants for their violation of the CWA.

         In 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).

         1. Persons under the CWA

         Under 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).

         Plaintiffs 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.

         2. Discharge of a Pollutant

         Defendants contend that plaintiffs' activities at the Site “resulted in a discharge of pollutants, specifically fill material.” Defs.' Mem. at 12.

         The CWA 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 CWA.

         3. “From a Point Source”

         Defendants 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.

         A point 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.

         4. Into Waters of the United States

         Under 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 United States.

         a. Relatively Permanent Flow

         The 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).

         As 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 Run.

         Defendants assert that prior to being filled, RR4 had a relatively permanent seasonal flow.[3] 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.[4] Id.

         That 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 ...


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