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Foster v. United States Environmental Protection Agency

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

August 29, 2019

RON FOSTER, individually, and FOSTER FARMS, LLC and MARKETING & PLANNING SPECIALISTS LIMITED PARTNERSHIP, Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and GINA MCCARTHY, in her official capacity as Administrator, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.

          MEMORANDUM OPINION AND ORDER RESPECTING REMEDIES

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

         In accordance with the court's Memorandum Opinion and Order and Findings of Fact and Conclusions of Law this day entered, the court considers the remedies that should be imposed. The issue has been briefed by both parties, each having recommended a remedy.

         The EPA, the prevailing party, seeks both a civil penalty pursuant to 33 U.S.C. § 1319(d), and injunctive relief pursuant to 33 U.S.C. § 1319(b). Foster does not dispute that both a civil penalty and injunctive relief is an appropriate form of remedy, but, in particular, disagrees with the EPA as to the amount of the civil penalty.

         Turning first to the issue of injunctive relief, the EPA suggests that Foster perform remediation in the form of “compensatory mitigation at least at the rate they would have had to perform had they complied with the permit process.” United States' Remedy Brief, “ECF # 251, ” at 1. Specifically, the EPA proposes:

that the Court direct Plaintiffs to retain a qualified consultant to calculate and submit to the U.S. Environmental Protection Agency (EPA) the West Virginia Stream and Wetland Valuation Metric (SWVM) credit value of the filled portions of RR1, RR2, RR3, and RR4. Upon EPA's agreement that the SWVM credit value has been correctly calculated, the United States proposes that the Court direct Plaintiffs to provide off-site compensatory mitigation for that number of SWVM credits within the Little Kanawha watershed. The United States prefers that Plaintiffs purchase those credits from a mitigation bank, but Plaintiffs could purchase credits from West Virginia's in-lieu fee program, or perform permittee-responsible mitigation in the amount of the SWVM credits calculated.

Id. at 2.

         The Clean Water Act, (“CWA”), authorizes the EPA to seek “appropriate relief” for any violations, “including a permanent or temporary injunction.” 33 U.S.C. § 1319(b). The district court “ha[s] authority to issue such restorative orders so as to effectuate the stated goals of the Clean Water Act ‘to maintain the chemical, physical, and biological integrity of the Nation's waters,' 33 U.S.C. § 1251 (1983).” United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151, 1164 (1st Cir. 1987)

         In evaluating remedial proposals for CWA violations, “courts have considered three factors: (1) whether the proposal ‘would confer maximum environmental benefits,' (2) whether it is ‘achievable as a practical matter,' and (3) whether it bears ‘an equitable relationship to the degree and kind of wrong it is intended to remedy.'” United States v. Deaton, 332 F.3d 698, 714 (4th Cir. 2003) (quoting Cumberland Farms, 826 F.2d at 1164). Generally, “restoration of a violation site to its pre-violation condition is the preferred remedy.” United States v. Bedford, No. 2:07-CV-491, 2009 WL 1491224, at *14 (E.D. Va. 2009) (citing Cumberland Farms, 826 F.2d at 1161-65). But where, as here, restoration of the damaged site is not feasible, compensatory mitigation serves as another form of remediation. See id. (“Other forms of remediation are compensatory mitigation, such as purchasing credits at a mitigation bank to accomplish off-site creation of wetlands, or ensuring the preservation of existing wetlands.” (internal citations omitted)). “Compensatory mitigation can be accomplished in one of three ways: 1) mitigation banks, 2) in-lieu fee programs, or 3) permittee-responsible mitigation, with the use of mitigation banks being the preferred method.” Walther v. United States, No. 3:15-CV-0021-HRH, 2015 WL 6872437, at *2 (D. Alaska 2015) (citing 33 C.F.R. § 332.3).

         Here, the court finds that the off-site compensatory mitigation proposed by the EPA, to be completed by Foster through purchasing the credits owed__ as determined by a qualified consultant to be retained by Foster and verified by the EPA __from a mitigation bank, would confer maximum environmental benefit, is achievable as a practical matter, and bears an equitable relationship to the environmental harm sought to be remedied. Indeed, the court notes that Foster does not oppose this form of remediation, but requests that the plaintiffs be given the choice of the following:

1. Preservation of existing Plaintiff owned [streams], and, if necessary, purchase of additional stream lengths of equal or greater WVSWVM score to be preserved from any future loss by recorded environmental covenant in perpetuity; or
2. In lieu fee; or
3. On site mitigation performed by the Plaintiffs or contracted at Plaintiffs' expense; or
4. Off site mitigation performed by the Plaintiffs or contracted at ...

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