Carabell v. U.S. Army Corps of Engineers
| Decision Date | 27 March 2003 |
| Docket Number | No. 01-CV-72797.,01-CV-72797. |
| Citation | 257 F.Supp.2d 917 |
| Parties | June CARABELL, and individual, Keith Carabell, an individual, Harvey Gordenker, an individual, and Frances Gordenker, an individual, Plaintiffs, v. The UNITED STATES ARMY CORPS OF ENGINEERS and THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Timothy A. Stoepker, Paul R. Bernard, Jennifer P. Fitzgibbons, Detroit, MI, for Plaintiffs.
Laurel A. Bedig, U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, Geneva S. Halliday, Assistant U.S. Attorney, Detroit, MI, for Defendants.
ORDER (1) ACCEPTING THE MAGITRATE JUDGE'S REPORT AND RECOMMENDATION, (2) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND (3) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
The Court has reviewed the magistrate judge's Report and Recommendation, filed on February 28, 2003. The Court has also reviewed the Plaintiffs' Objections to the Report and Recommendation, which was filed on March 14, 2003.
IT IS ORDERED that the Report and Recommendation (Docket # 22) is accepted and entered as the findings and conclusions of this Court, that Plaintiffs' motion for summary judgment is DENIED, and that Defendants' motion for summary judgment is GRANTED.
This matter is before the Court on the parties' cross-Motions for Summary Judgment filed on April 12, 2002, and May 31, 2002. Both Motions concern the denial of a 404 Permit by the Army Corps of Engineers ("COE"), to fill wetland on Plaintiffs' property. At issue is whether the COE has jurisdiction over Plaintiffs' property, and if so, whether the decision to deny the Permit was arbitrary and capricious.
Keith and June Carabell own a 19.6acre parcel of land located in Chesterfield Township, Macomb County, Michigan. The property is shaped roughly like an inverted right angle, with one leg running along a north-south line, and the other leg running along an east-west line. (See Site Location Maps, attached to Carabell's Application for Permit to Army Corps and MDEQ, DNR File No. 93-14-0602). The hypotenuse of the triangle runs along a northeast-southwest line, and a ditch for a county drain, the Sutherland-Oemig Drain, follows the hypotenuse for 1,800 feet. (Id.). The ditch is no wider than four feet, and the water in it is no deeper than six inches.
An upland ridge runs along the west side of the drain; it was apparently formed by the sidecasting of spoils during the excavation of the ditch. (MDEQ Proposal for Decision, 8/12/99, at 11). This clay ridge prevents water from the forested area of the property from draining into the ditch. Another small amount of upland, less than four acres, is located in the southwest corner of the parcel. (See Site Location Maps, supra). The property is forested predominantly with swamp oak and cottonwood trees, and includes no man-made structures. (Leighton Testimony, 10/27/97 at 357).
The property retains an undetermined amount of water for an undetermined period, and it has not been established in the record whether the property retains this water on an annual basis or less frequently. (See Administrative Appeal Decision, 3/5/2001 at 3). The record evidence is uncontroverted on one point: the property does not retain water at all times. (MDEQ Proposal for Decision, 8/12/99 at 11). Moreover, it is also undisputed that the property does not have a surface water connection to any adjacent property or any adjacent body of water. (Id.). In short, the water that is periodically present in the forested portion of the property does not drain to the Sutherland-Oemig drain or to any body of water, it remains on the property until it is absorbed by the soil and vegetation.
The property abuts Donner Road, which runs along its north-south side, and it is near Interstate 94, which passes to its northwest. (See Site Location Maps, supra ). A large subdivision of single-family homes is between the property and the freeway. (Id.). To the north of the property is 23 Mile Road, and, between that road and the property are a vacant field and several condominium and apartment complexes. (Id.). To the southeast of the property, on the other side of the Sutherland-Oemig Drain, is another subdivision of residential homes, and this subdivision borders Lake St. Clair. (Id.). To the east of the property is a vacant woodlot, several more residential subdivisions and then a large woodlot, which is slated for development into a residential subdivision. (Id.).
In 1993, the Carabells applied to the MDEQ for a permit to fill 15.9 acres of the forested area of the property for the purpose of building 130 condominium units, along with the associated roads and utilities. In March 1994, the EPA filed written objections to the Carabell's application. The MDEQ then denied the application.
The Carabell's then filed an alternative plan, seeking to fill only 12.2 acres and build 112 condominium units. (MDEQ Application, supra). The alternative plan also proposed to construct retention ponds on 3.74 acres of the property; these ponds would filter any water draining across the property as a result of the development.1 (See MDEQ Proposed Decision, 8/12/99).
The MDEQ then conducted a contested case hearing before an administrative law judge. The Carabells and the MDEQ submitted extensive testimonial and documentary evidence to the ALJ, who issued a proposed decision in August 1998 that recommended the issuance of the permit. Crucial to the ALJ's ruling was the fact that the property was isolated from any body of water:
This opinion is premised on the fact the wetland does not have a surface water connection to adjacent properties or any body of water, and the property to the immediate north is isolated by a retention pond. Furthermore, the drainage ditch along Donner Road prevents a discharge of water both to and from the site, and the Sutherland-Oemig drain is bermed, which prevents the discharge of water either into it or from the drain.
(Id. at 11)(emphasis added).
A final Determination and Order embodying the proposed decision was issued on September 30, 1998. (MDEQ Final Determination and Order, 9/30/99). This order mandated that the Carabells be granted a permit allowing them to develop the property according to their alternative plan.
In November 1998, acting pursuant to 33 U.S.C. § 1344, the EPA notified the MDEQ that it objected to the issuance of the permit to Plaintiffs, and it asserted federal jurisdiction over the case on the ground that the property was a wetland that was adjacent to the navigable waters of the United States. Also pursuant to § 1344, the EPA authorized the Corps to determine whether a federal permit should issue to allow the proposed development. Although the Carabells contested federal jurisdiction, they nevertheless submitted a permit application to the Corps.
The Corps initially conducted a Permit Evaluation, which was based upon three site inspections. (Department of Army Permit Evaluation, 9/11/2000). In the Permit Evaluation, the Corps found that the property must be part of the Lake St. Clair watershed because other property in a roughly similar location was a part of the watershed. In the words of the Permit Evaluation: "[d]ue to the fact that the influence of Lake St. Clair has been documented on the nearby Salt River over a mile up the reaches of the river (to 23 Mile Road), it is likely that the same influence is realized on the Auvase Creek, and continuing up the Sutherland-Oemig Drain that distance in the landscape, as well." (Id. at 6)(emphasis added). The Permit Evaluation also noted that the drainage ditch along the hypotenuse of the property drained into the Sutherland-Oemig Drain, but, in making this finding, the Corps did not cite any particular observation or other evidence. (Id.). The finding seems to be based upon its assessment of the probability that the property was part of the Lake St. Clair watershed.
Indeed, the speculative character of the Corps's entire fact-finding is confirmed by its description of the relationship of the property to the tributary system of Lake St. Clair. According to the Corps, the "ditch ... along the southeast portion of the property" runs into the Sutherland-Oemig Drain, which runs into Auvase Creek, which runs into Lake St. Clair. (Id.). This is simply a factual error. The "ditch ... along the southeast portion of the property" is the Sutherland-Oemig Drain. This error demonstrates the haphazardness of the Corps's own factual inquiry.
The Corps denied that application on October 5, 2000. (Letter from Lt. Col. Richard J. Polo, 10/5/2000 ("Decision Letter")). In this Decision Letter to the Carabells, the Corps's District Engineer, Lt. Col. Richard J. Polo, Jr., noted that the property was a valuable seasonal habitat for aquatic organisms and a year-round habitat for terrestrial organisms and that the property "provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair." (Id. at 1) In an accompanying Memorandum for the Record, Lt. Colo. Polo found that projects like the one proposed by the Carabells were "resulting in increases in flood duration and frequency and a contribution to the degradation of water quality in the Lake St. Clair watershed." (Memorandum for the Record at 1). This impact on the water quality of the Lake St. Clair watershed was a crucial factor in Lt. Col. Polo's assessment of the public interests associated with the project. (Id. at 2).
In light of these characteristics of the property and in light of the Corps's...
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