Marquette Cnty. Rd. Comm'n v. U.S. Envtl. Prot. Agency

• Decision Date: 18 May 2016
• Docket Number: File No. 2:15-CV-93
• Citation: 188 F.Supp.3d 641
• Parties: Marquette County Road Commission, Plaintiff, v. United States Environmental Protection Agency, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

188 F.Supp.3d 641

Marquette County Road Commission, Plaintiff,

v.United States Environmental Protection Agency, et al., Defendants.

File No. 2:15-CV-93

United States District Court, W.D. Michigan, Northern Division.

Signed May 18, 2016

Michael J. Pattwell, Clark Hill PLC, Lansing, MI, Thomas M. Keranen, Clark Hill PLC, Birmingham, MI, for Plaintiff.

Benjamin R. Carlisle, U.S. Department of Justice, ENRD-EDS, Environmental Defense Section, Washington, DC, for Defendants.

OPINION

ROBERT HOLMES BELL, UNITED STATES DISTRICT JUDGE

This is an action for declaratory and injunctive relief filed by Plaintiff Marquette County Road Commission ("MCRC") against the United States Environmental Protection Agency ("EPA"), Susan Hedman (in her capacity as Administrator of Region V of the EPA), and the United States Army Corps of Engineers ("Corps"), pursuant to the Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq. Before the Court is Defendants' motion to dismiss (ECF No.13) and Plaintiff's motion for discovery (ECF No. 25). For the reasons stated herein, Defendants' motion to dismiss will be granted and Plaintiff's motion for discovery will be denied.

I. Background

Plaintiff intends to fill 25 acres of wetlands in order to construct a road in Marquette County. To do so, it needs a permit under section 404 of the CWA. As the Sixth Circuit has explained:

The Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. §§ 1251 -1376, enacted in 1972, constituted a reconstruction of America's water pollution laws. Pursuant to the FWPCA, the discharge of pollutants into our nation's waterways is prohibited unless authorized by a permit or exempted by the specific statutory language.

The Act establishes two discrete permitting systems by which individuals might obtain permits from the appropriate federal agency allowing dumping in waterways.

The first, which is known as the National Pollutant Discharge Elimination System ("NPDES"), governs the discharge of pollutants from specific sites, known as point sources, see § 402 of the FWPCA, 33 U.S.C. § 1342, and most typically affects industry sources. The second permitting scheme, which operates under the Secretary of the Army via the Army Corps of Engineers, regulates the release of dredged and fill matter into waterways, including wetlands. See § 404 of the FWPCA, 33 U.S.C. § 1344. The two permitting systems are commonly referred to as "the § 402 system" and "the § 404 system," respectively.

Friends of Crystal River v. EPA , 35 F.3d 1073, 1074–75 (6th Cir.1994).

Plaintiff sought its permit from the Michigan Department of Environmental Quality ("MDEQ"), which is the state agency responsible for implementing Michigan's federally-approved CWA wetland permit program.

States are authorized to supplant the first federal permitting scheme, the NPDES scheme, pursuant to various provisions of the FWPCA. Additionally, the Clean Water Act of 1977, ("CWA"), passed in 1977, which strengthened the FWPCA by adding additional protections, provides a similar authority to the states with respect to § 404 permits....

Under § 404 a state may establish its own permitting system by complying with the process enumerated therein. Limited federal oversight authority is retained even after the state's acquisition of permitting control. Pursuant to this retained oversight authority, a state is required to present to the EPA copies of all permit applications which are submitted to the state for approval. In addition, the state must notify the EPA of any action that it takes with respect to such applications. § 1344(j). The EPA Administrator must, within 10 days, provide copies of the application to the Army Corps, the Department of the Interior, and the Fish and Wildlife Service. The state must be notified within thirty days if the Administrator intends to comment on the state's handling of the application. Id. The administrator's comments must be submitted within ninety days. Id.

Friends of Crystal River , 35 F.3d at 1075 (footnotes omitted).

Plaintiff submitted its initial application to the MDEQ in October 2011, and a revised application on January 23, 2012. The MDEQ sent copies of the application to the EPA, the Corps, and the United States Fish and Wildlife Service ("FWS"). On April 23, 2012, after consulting with the Corps and the FWS, the EPA submitted comments on the application and objected to issuance of a permit, asserting that Plaintiff's proposal failed to comply with section 404 of the CWA, 33 U.S.C. § 1344, and the 404(b)(1) guidelines, 40 C.F.R. §§ 230.1 et seq., because, among other things, it did not demonstrate that the proposed road was the "least environmentally damaging practical alternative." (Ex. 19,¹ 4/23/2012 EPA letter, ECF No. 6-5.)

Once a state is notified that the EPA intends to comment, it may not issue the permit until after it has received the comment, or until ninety days have passed. If the EPA objects to the application, the state "shall not issue such proposed permit" even after the ninety days have elapsed. [33 U.S.C. § 1344(j).] The aggrieved state may request a hearing to air its complaints. However, if the state does not request a hearing, or if it fails to modify its plan so as to conform to the EPA's objections, authority to issue the permit is transferred to the Army Corps.

Friends of Crystal River , 35 F.3d at 1075 (footnote omitted).

Over the next several months, Plaintiff, the MDEQ, and the EPA discussed the application. Plaintiff submitted a second revised application on June 29, 2012, and a third revised application on July 24, 2012. At the MDEQ's request, the EPA held a public hearing on the third revised application on August 28, 2012. On September 17, the MDEQ notified the EPA that "it would soon be in a position to issue a permit under state authorities," and urged the EPA to withdraw its objections. (Compl. ¶ 262, ECF No. 1.) Plaintiff subsequently revised its wetland mitigation plan.

On December 4, 2012, the EPA notified the MDEQ that it was withdrawing some objections, but that it continued to object to the issuance of the permit because it did not believe that Plaintiff had provided "adequate plans to minimize impacts" or a "comprehensive mitigation plan that would sufficiently compensate for unavoidable impacts." (Id. ¶ 265.) The EPA informed the MDEQ that the state had 30 days to either issue a permit which satisfied the EPA's objections or to notify the EPA of its intention to deny the permit. See 40 C.F.R. § 233.50(h)(2). Between December 4 and December 27, 2012, Plaintiff "repeatedly" contacted the EPA to obtain more specific information about the objections and the conditions necessary to satisfy them. (Compl. ¶ 271.) It did not receive the information that it desired. Instead, the EPA told Plaintiff to work with the MDEQ. On December 27, 2012, Plaintiff sent the MDEQ a detailed letter responding to the EPA's concerns and asking the state to issue a permit. (Ex. 44, MCRC letter, ECF No. 8-12.)

On January 3, 2013, the MDEQ notified the EPA that, although it was working with Plaintiff to address the EPA's objections, it would not issue a permit because of "the short time frame allowed by statute and the complexity of the issues remaining." (Ex. 45, MDEQ letter, ECF No. 8-13.) The MDEQ acknowledged that, per section 404 of the CWA, "authority to process the permit application...is now transferred to the [Corps]." (Id. )

Thereafter, the Corps told Plaintiff that it would not issue a permit based on the third revised application submitted to the MDEQ. (Compl. ¶ 299.) Rather, in order to proceed, Plaintiff would need to submit a new application to the Corps. (Id. ) Plaintiff declined to do so. (Id. ¶ 301.)

Plaintiff subsequently brought this five-count declaratory judgment action. In Count I of the complaint, Plaintiff claims that the EPA's objections to its permit application were arbitrary and capricious. In Count II, Plaintiff claims that the EPA exceeded its delegated authority by issuing objections based on requirements that are not mandated by the CWA. In Count III, Plaintiff claims that the EPA's objections failed to list the conditions necessary for a permit to issue, as required by section 404(j) of the CWA. In Count IV, Plaintiff claims that the EPA did not follow the procedural requirements of section 404(j) of the CWA. In Count V, Plaintiff claims that the Corps improperly denied its permit application by failing to act on it.

Defendants assert that the complaint should be dismissed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, because the complaint fails to state a claim upon which relief can be granted and because the Court lacks subject matter jurisdiction to adjudicate the claims against the EPA.

II. Jurisdiction

Defendants contend that the Court lacks subject matter jurisdiction over the claims against the EPA. Their core objection to these claims is that the EPA's actions are not reviewable because they do not constitute a "final agency action" under the APA. See 5 U.S.C. § 704. As the Sixth Circuit has explained, however, "[t]he APA is not a jurisdiction-conferring statute; it does not directly grant subject matter jurisdiction to the federal courts." Jama v. Dep't of Homeland Sec. , 760 F.3d 490, 494 (6th Cir.2014). Consequently, the "final agency action requirement" of the APA is not jurisdictional. Id. at 494 n. 4. Rather, the Court's jurisdiction stems from the federal question statute, 28 U.S.C. § 1331, which " ‘confer[s] jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate.’ " Id. at 494 (quoting Califano v. Sanders , 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) ); see also Hill v. Norton , 275 F.3d 98, 103 (D.C.Cir.2001) (noting that "challenges brought under the APA fall within the reach of the general federal jurisdiction statute, 28 U.S.C. § 1331").

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