Froebel v. Meyer

• Decision Date: 30 July 1998
• Docket Number: No. 97-C-654.,97-C-654.
• Citation: 13 F.Supp.2d 843
• Parties: Kurt F. FROEBEL, Plaintiff, v. George E. MEYER, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 843

13 F.Supp.2d 843

Kurt F. FROEBEL, Plaintiff, v. George E. MEYER, et al., Defendants.

No. 97-C-654.

United States District Court, E.D. Wisconsin.

July 30, 1998.

William S. Roush, Jr., Davis & Kuelthou, Milwaukee, WI, for Plaintiff.

Phillip Peterson, Wis. Dept. of Justice, Donald P. Gallo, Michael, Best & Friedrick, Milwaukee, WI, for Defendants.

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiff Kurt Froebel brings this action under the citizen suit provision of the Federal Water Pollution Control Act, commonly called the Clean Water Act ("CWA" or "Act"), codified as amended at 33 U.S.C. §§ 1251-1387. Froebel alleges that defendants, who include the Wisconsin Department of Natural Resources ("DNR"), two DNR officials and Waukesha County, violated and continue to violate the Act by discharging pollutants into the Oconomowoc River and North Lake without the requisite permits, as a result of the DNR's poorly executed removal of Funk's Dam 1992.

This case and the defendants' motions to dismiss raise several novel and the legal issues including: (1) the viability of the Ex parte Young doctrine in the context CWA violations after two recent Supreme Court decisions on sovereign immunity¹; (2) the DNR's potential accountability under a federal statute such as the CWA for non-enforcement actions performed under discretionary authority granted by Wisconsin law; and (3) the application of the relevant CWA permitting provisions, 33 U.S.C. §§ 1342 and 1344, to a fact situation involving dam removal, rather than dam construction or operation.

Count I of plaintiff's complaint alleges that defendants failed to secure a permit under 33 U.S.C. § 1342 or the analogous state permit provisions, Wis.Stat. § 283.31-.63, for the removal of Funk's Dam in 1992, or for the consequent and ongoing redeposit of silt and sediment into the downstream waters of the Oconomowoc River and North Lake. The plaintiff alleges that this shifting of sediment constitutes a "discharge of [a] pollutant" under 33 U.S.C. § 1311, or an "addition of [a] pollutant to navigable waters from [a] point source" as defined in § 1362(12)(A), requiring defendants to obtain the necessary permits.

Count II of plaintiff's complaint alleges that defendants failed to secure a permit under 33 U.S.C. § 1344 for the 1992 dam removal or for the same resulting transfer of sediment downstream, which allegedly continues to occur. The plaintiff claims that this transfer constitutes a "discharge of dredged or fill material" under § 1344 requiring defendants to obtain a permit from the Army Corps of Engineers, the entitle that issues and administers this permit provision. See 33 U.S.C. § 1344(d).

All defendants filed motions to dismiss. The state defendants raise defenses of sovereign immunity, claim preclusion growing out of prior state administrative proceedings, and failure to state a claim upon which relief can be granted. Accordingly, they move to dismiss both counts under Rule 12(b)(1), for lack of subject matter jurisdiction; and Rule 12(b)(6), for failure to state a claim. See Fed.R.Civ.P. 12(b). Waukesha County, which purchased the riparian property abutting Funk's Dam and the dam impoundment in December 1993, also moves to dismiss both counts under Rule 12(b)(6), for failure to state a claim upon which relief can be granted. Id. Based on the following analysis, I will grant the Wisconsin defendants' 12(b)(1) motion to dismiss because of sovereign immunity as to the DNR, but deny it as to the DNR officials. The remaining defendants' 12(b)(6) motions to dismiss will be granted on both counts.

I. FACTUAL BACKGROUND

The following facts are taken from the complaint and from the factual findings of Administrative Law Judge Jeffrey D. Boldt ("ALJ Boldt"), incorporated into the complaint by reference. See In re Removal of Funk's Dam, No. 3-SE-92-322 (Div. of Hearings and Appeals Feb. 21, 1996) ("ALJ Decision").

Funk's Dam sits approximately one mile upstream of North Lake on the Oconomowoc River in Waukesha County. Originally built in 1850 and later rebuilt several times, the dam first washed out in 1965. In 1971, the DNR notified the dam owner, Gerald Quinn, that the dam was in poor condition and needed repairs. The dam failed again in March 1975, prompting the DNR to issue an order requiring Quinn to repair the dam. Quinn refused to comply. In 1982, the DNR issued a determination that the dam was unsafe and had been abandoned and gave notice of the agency's intention to remove it. Quinn challenged the DNR determination. Although the challenge was ultimately dismissed by the Wisconsin Court of Appeals in 1985, dam removal was delayed.

The Wisconsin legislature appropriated funds for removing abandoned dams in August 1991, and the DNR began preparations to remove Funk's Dam. On August 17, 1992, the DNR began a drawdown of the reservoir, or impoundment, behind the dam in anticipation of removal. On the following day, a public notice was issued, requesting comments on the dam removal and seeking input on the DNR's related Environmental Assessment ("EA"). A public informational hearing was held on September 9, 1992 regarding the imminent removal of the dam. At the hearing, DNR representatives assured the public that the agency's removal plan would guard against a significant or harmful environmental impact to downstream waters. In its EA, the DNR did observe that "an increase in sediment load to the lake is expected during drawdown." An Environmental Impact: Statement ("EIS") on the dam removal project was never prepared, however, as the DNR determined that one was not needed. See North Lake Management Dist. v. Wisconsin Dep't of Natural Resources, 182 Wis.2d 500, 503, 513 N.W.2d 703 (Ct.App. 1994).

On October 2, 1992, the DNR contractor began the physical removal of the dam. At that time, Funk's Dam consisted of several 3-foot section gates, a 60-foot emergency spillway, and a 350-foot earthen embankment. No one disputes that the dam was unsafe and a menace to life, health, and property. The DNR's foremost concern was the potential for flooding due to dam failure. In addition, the agency believed dam removal would reduce sediment transport by stabilizing the impoundment bottom. ALJ Boldt subsequently found that a clear preponderance of the evidence established that the DNR's decision to remove the dam was reasonable, given the serious concerns about public safety and sediment transport. ALJ Decision, Findings at ¶ 10.

Plaintiff Froebel cites poor implementation of the decision to remove the dam rather than the decision itself as the source of the environmental consequences giving rise to this litigation. In 1986, the DNR had conducted a study on the depth and distribution of the sediment upstream of Funk's Dam, with the object of predicting the relative consequences of dam removal and dam failure. In addition, DNR Assistant Dam Safety Engineer William Sturtevant, a named defendant in this action, prepared a formal drawdown plan in 1992. Both the 1986 study and the Sturtevant plan recommended certain steps be taken to ensure that the sediment transport triggered by dam removal was minimized.

Again, no one disputes that the DNR did not follow these recommendations in significant respects during dam removal. Specifically, no sediment basin or sediment barrier was placed upstream of the dam; downstream sediment traps were too small and were not properly pumped during removal; no pumps or siphons were installed along the embankment prior to drainage; and the dam itself was only partially removed, although the DNR's own EA had warned that partial removal would create instability and exacerbate sediment shifting.

The DNR has argued that on-site conditions, engineering problems, and other factors made it infeasible to follow all the recommendations made prior to removal. Heavy rains also plagued the drawdown, requiring additional drainage and producing more sediment transport than anticipated. While ALJ Boldt credited some of the DNR's explanations, he ultimately found as follows:

[I]t is not at all clear from the record why [the extenuating] conditions were not foreseeable to Department personnel.... The Department was well aware of public concerns relating to the release of sediment at the time of dam removal. The record is replete with concerns on this exact issue expressed well prior to design of the drawdown plan.... The record does not adequately explain why [alternative measures] could not be implemented. Further, if larger sedimentation basins could not have been constructed, the Department should not have represented to the public that it would build them, nor that the DNR's efforts to collect sediment would be adequate to protect the navigable waters of the river and North Lake.

. . . . .

A preponderance of the credible evidence supports a finding that a large amount of sediment was discharged into the Oconomowoc River and North Lake as a result of the partial removal of the Funk's Dam. The record taken as a whole also establishes that these navigable waterways have been detrimentally impacted by the manner in which the partial dam removal was undertaken.... The DNR had sound reasons for removal of the dam; the Department properly planned for removal of the dam. However, as the dam was removed, the Department was too quick to throw out its drawdown and removal plans as being impossible to perform....

ALJ Decision, Findings at ¶¶ 14, 19 (citations omitted).

The plaintiff alleges that silt, sediment and ongoing erosion continue to be discharged downstream through the channelized structure formed by the partially removed dam. As a result, large muck and silt bars which did not exist prior to removal have formed in the Oconomowoc River and at the river mouth in North Lake. The excess sediment transfer and silt deposits continue to impair the navigability of the river and lake and to damage the natural habitat of many species.

Prior to filing...