Save Our Community v. USEPA, Civ. A. No. 3-90-0799-H.

• Decision Date: 03 May 1990
• Docket Number: Civ. A. No. 3-90-0799-H.
• Citation: 741 F. Supp. 605
• Parties: SAVE OUR COMMUNITY and the City of Ferris, Texas, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

741 F. Supp. 605

SAVE OUR COMMUNITY and the City of Ferris, Texas, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Civ. A. No. 3-90-0799-H.

United States District Court, N.D. Texas, Dallas Division.

May 3, 1990.

COPYRIGHT MATERIAL OMITTED

Frederick W. Addison, III and Elizabeth E. Mack, Locke Purnell Rain Harrell, Dallas, Tex., for plaintiffs.

(EPA) Michael D. Rowe, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., (COE) Rebecca Gregory, U.S. Dept. of Justice, U.S. Attorney's Office, Dallas, Tex., (TRINITY) Jeff Civins, Vinson & Elkins, Austin, Tex., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SANDERS, Chief Judge.

I. INTRODUCTION

This action for declaratory and injunctive relief challenges the draining of several ponds located on the proposed site of a landfill expansion. Plaintiffs, a citizens association and the City of Ferris, Texas, seek a declaratory judgment that Defendant Waste Management, Inc. is in violation of the Clean Water Act by its failure to obtain a "404(b)" permit prior to the commencement of draining. Plaintiffs also seek a declaration that the United States Army Corps of Engineers and the Environmental Protection Agency have either: (1) failed to perform a mandatory duty to enforce the § 404(b) permit provisions or, (2) incorrectly interpreted the Clean Water Act by determining that draining is not a regulated activity.

The Court granted Plaintiffs' application for a temporary restraining order on April 3, 1990. Plaintiffs now move for a preliminary injunction. Pending before the Court is Plaintiffs' Complaint ("Complaint") and Memorandum in Support of Application for Preliminary Injunction ("Plaintiffs' Memorandum"), filed April 2, 1990; Plaintiffs' Supplemental Memorandum, filed April 9, 1990; Defendant Waste Management, Inc.'s Response, filed April 16, 1990; Federal Defendants' Motion to Dismiss, filed April 16, 1990;¹ Plaintiffs' Reply to Defendant Waste Management, Inc.'s Response, filed April 18, 1990; Defendant Waste Management, Inc.'s Response to Plaintiffs' Reply, filed April 23, 1990; and Plaintiffs' Response to Federal Defendants' Motion to Dismiss, filed April 23, 1990.

The Court makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). Any findings which constitute conclusions or conclusions which constitute findings should be deemed the other, as appropriate.

II. FINDINGS OF FACT

A. Parties

1. Plaintiff Save Our Community ("SOC") is an unincorporated association of approximately 200 individuals organized to oppose expansion of the Skyline Landfill located in Ferris, Texas. One purpose of SOC is to promote the protection of the wetlands in and around its members' communities. Members of SOC reside in the cities of Ferris, Dallas, and Palmer, and in rural areas in Ellis and Dallas counties.

2. Plaintiff City of Ferris, Texas ("Ferris") is a Type A, General Law City existing pursuant to the laws of the State of Texas and performing the duties and responsibilities of a general purpose unit of government organized as a municipal corporation. The City has issued a resolution authorizing its counsel to take actions necessary with regard to the landfill and related matters.

3. Defendant Trinity Valley Reclamation, Inc. is a wholly-owned subsidiary of Waste Management of North America, Inc. (collectively referred to as "Waste Management").

4. Defendant Michael P.W. Stone, Secretary of the United States Army, and Defendant Col. William D. Brown, District Engineer of the Fort Worth District of the United States Army Corps of Engineers, a department of the United States Army (the "Corps"), are charged with enforcement of and adherence to the statute that forms the basis of this action.

5. Defendant William Reilly is Administrator, and Defendant Robert E. Layton is Regional Administrator, Region VI, of the Environmental Protection Agency ("EPA"), and are charged with enforcement of and adherence to the statute that forms the basis of this action.

B. History of Project

6. Waste Management is the owner and operator of a seventy-three acre landfill (the "Skyline Landfill") located near Ferris, Texas. Waste Management's Response at 2-3.

7. In January 1989, Waste Management filed an application with the Texas Department of Health to expand the Skyline Landfill from 73 to 340 acres. Id.

8. In May of 1987, Waste Management solicited an opinion from the Corps as to whether any portion of the proposed expansion area constituted "waters of the United States" subject to the Corps' jurisdiction. The Corps made a jurisdictional determination on May 29, 1987 that six or seven "ponds" located on the proposed expansion area were waters of the United States. Plaintiffs' Exs. D, E, F, G; Lea Aff. ¶¶ 3-6. The EPA concurred in this determination. Thomas Aff. ¶ 4.

9. The Corps and the EPA also determined that these regulated waters, which included wetlands, were subject to the permitting requirements of § 404(b) of the Clean Water Act. Plaintiffs' Exs. D, E, F, G, J, and L.

10. The ponds were artificially-created and formed in part through a prior owner's construction of levees to catch run-off water. Waste Management's Response at 2-3.

11. The United States Department of Fish and Wildlife ("Fish & Wildlife") corresponded with consultants for Waste Management on August 18, 1987 and informed them of the potential presence of endangered or threatened migratory birds in the project area. Plaintiffs' Ex. G.

12. Migratory birds such as ducks, herons and storks have been sighted at or near the ponds. Birdwell Aff. ¶ 2; Douglas Aff. ¶ 2.

13. Waste Management began draining the ponds through the use of a mechanical pump in 1988. Approximately ten acres of surface water remain from the original twenty-one acres. Waste Management intends to completely drain the ponds and remove rubble levees and dams used to retain runoff water. Once the wetlands have ceased to support plant and animal life characteristic of wetlands, Waste Management will seek from the Corps a redetermination of the site's jurisdictional status. Ultimately, Waste Management plans to utilize the drained areas for additional landfill space. Plaintiffs' Ex. L, O; Complaint ¶ 44; Transcript of Conference on Application for Temporary Restraining Order, April 3, 1990; Fielder Aff. at 2-3; Waste Management's Response at 2-4.

14. Waste Management has attempted to avoid unauthorized discharges of materials into the ponds during the course of draining. Some minor discharges have occurred. Fiedler Aff. at 4; Plaintiffs' Exs. L, N.

15. Waste Management and prior owners of the property have not permitted recreational use of the ponds since their creation. Fiedler Aff. at 2.

16. The Corps and the EPA have been aware of Waste Management's pumping activities since at least March 1989 and have failed to prevent this practice. Representatives of Waste Management have met and corresponded with representatives of the Corps, EPA, and Fish & Wildlife on several occasions in efforts to ensure that Waste Management's activities did not violate the Clean Water Act. Waste Management's Exs. A — D; Federal Defendants' Motion to Dismiss and accompanying affidavits.

17. The Corps and EPA have made a determination in this case that they do not have the legal jurisdiction or authority to require a permit where the only activity conducted on a legally-designated wetland is draining or dewatering. Transcript of Conference on Application for Temporary Restraining Order, April 3, 1990, pp. 10, 13-14, 23; Affidavit of Wayne A. Lea, Federal Defendants' Motion to Dismiss; Affidavit of Norm Thomas, Federal Defendants' Motion to Dismiss; Exhibits B, C, & D, Waste Management's Response.

18. Waste Management has not sought or applied for any permit to authorize its draining activities. Complaint ¶ 47.

19. Plaintiffs filed a notice of intent to sue pursuant to 33 U.S.C. § 1365(b) on January 22, 1990, more than sixty-days before filing the current application before the Court. Complaint ¶ 14.

III. CONCLUSIONS OF LAW

A. Jurisdiction and Standard of Review.

Jurisdiction of the Court is pursuant to the citizen suit provision of the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a)(1).² Section 1365(a)(1) allows a private right of action against persons allegedly violating certain provisions of the CWA. The Court also possesses jurisdiction under the Administrative Procedure Act, 5 U.S.C. §§ 702, 704 ("APA"), which provides judicial review to a party adversely affected or aggrieved by final agency action, and 28 U.S.C. §§ 2201, 2202 which provide jurisdiction for a declaratory judgment proceeding.

The Corps and EPA have made a determination in this case that they do not have the legal jurisdiction or authority to require a § 404(b) permit where the only activity conducted on a legally-designated wetland is drainage. See Courts' Finding of Fact # 17.³ This determination constitutes final agency action under the CWA subject to this Court's review. 5 U.S.C. §§ 702, 704; National Wildlife Federation v. Laubscher, 662 F.Supp. 548, 550 (S.D. Tex.1987) (determination by Corps based on an alleged incorrect interpretation of statutory language and regulations subject to judicial scrutiny).⁴

Empowered to review the Corps' determination, the Court must abide by the deferential standards defined in 5 U.S.C. § 706(2)(A), (B), (C), and (D). These provisions require the Court to set aside findings, conclusions, and actions of an agency that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, or that fail to meet statutory, procedural or constitutional requirements. Avoyelles III, supra, 715 F.2d at 904 (reviewing Corps determination pursuant to the CWA).

B. Standing.

Plaintiffs, a Texas city and a citizens association, each assert standing as "representational organizations" in this cause pursuant to the citizen's suit provisions of the CWA, 33 U.S.C....