Save Our Community v. U.S. E.P.A.

• Citation: 971 F.2d 1155
• Decision Date: 14 September 1992
• Docket Number: No. 91-7012,91-7012
• Parties: , 22 Envtl. L. Rep. 21,532 Save Our Community, et al., Plaintiffs, SAVE OUR COMMUNITY, Plaintiff-Appellee, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1155

971 F.2d 1155

35 ERC 1937, 22 Envtl. L. Rep. 21,532

Save Our Community, et al., Plaintiffs SAVE OUR COMMUNITY, Plaintiff-Appellee, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants-Appellants.

No. 91-7012.

United States Court of Appeals Fifth Circuit.

Sept. 14, 1992.

Sharon M. Mattox, L. Dewayne Layfield, Larry W. Nettles, Kimberly Z. Lesniak Houston, Tex., for Trinity Valley Reclamation.

Edward J. Shawaker, J. Carol Williams, U.S. Dept. of Justice, Appellate Sec., Washington, D.C., for E.P.A.

Elizabeth Ellen Mack, Frederick W. Addison, III, Locke, Purnell, Rain, Harrell, for Save Our Community.

James T.B. Tripp, Environmental Defense Fund, New York City, for amici curiae--Environmental Defense Fund & National Wildlife Federation.

Oliver A. Houck, pro se.

Appeals from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, and DUHE, Circuit Judge. ^*

PER CURIAM:

Appellee, Save Our Community ("SOC"), ¹ brought suit challenging the draining of several ponds on the site of a proposed expansion of a 73-acre landfill (the "Skyline Landfill") near the City of Ferris, Texas, operated by appellant Trinity Valley Reclamation, Inc. (collectively "Trinity"). ² SOC ³ sought a preliminary injunction and a declaratory judgment that Trinity violated the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq., by failing to obtain a permit pursuant to section 404 of the Act before starting to drain the ponds. SOC also sought a declaration that appellants the United States Army Corps of Engineers ("Corps") and the United States Environmental Protection Agency ("EPA") (collectively "Federal defendants") either failed to perform a duty to enforce section 404 provisions or incorrectly interpreted the CWA by determining that draining is not a regulated activity under the Act. The district court held as a matter of law that the draining activity required a permit. It issued a permanent injunction. We reverse.

I. FACTS

Trinity owns and operates the Skyline Landfill located near Ferris, Texas. In contemplation of expanding the landfill to encompass a total area of 340 acres, Trinity solicited an opinion from the Corps in May of 1987 as to whether the Corps had jurisdiction over any portion of the proposed expansion area as constituting waters of the United States. The area included seven man-made ponds. The Corps determined that these ponds were waters of the United States, and, as such, were protected under the CWA. The EPA subsequently sent a letter to Trinity concurring in the Corps' determination and advising it of the need for a permit if any discharge into these ponds was contemplated. ⁴

Since filling the ponds with landfill would violate the CWA, Trinity began draining the ponds by the use of a mechanical pump, utilizing the water extracted to irrigate the sod covering areas of the existing landfill. ⁵ According to Trinity, maintaining a proper sod cover over the existing landfill necessitated irrigation, and the ponds provided the only water available in the area. Moreover, Trinity, as well as the Corps, expressed a concern that the rubble dams creating the ponds were unstable, and thus were a risk to public safety, further necessitating the removal of water from the ponds. More important, Trinity planned to drain the ponds and utilize these areas for landfill purposes. ⁶ Unsure whether this pumping activity would ever fully drain the ponds, Trinity asserted, and the Corps concurred, that Trinity subsequently would seek another determination from the Corps as to whether these drained areas still constituted waters of the United States prior to utilizing the areas for landfill purposes. ⁷

During the course of this pumping operation, the result of which had lowered the surface area of the ponds down from 20 to 10 acres, Trinity, in January 1989, applied to the Texas Department of Health ("TDH") for a permit to expand the Skyline Landfill from 73 acres to 340.399 acres. The TDH referred along the application to the Fish and Wildlife Service of the United States Department of the Interior ("FWS") for its review. FWS replied that there was "an apparent attempt to circumvent the regulations" on the part of Trinity, and recommended that "in the interest of fish and wildlife resources and wetland conservation ... the permit application be denied." FWS expressed its concerns regarding the project and reported that it "noted a variety of wildlife using the ponds on our on-site visit including leopard frogs, beaver, and various birds." FWS also drew Trinity's attention to the depositing of fill material occurring in one of the ponds.

On April 2, 1990, claiming that the draining activity required a permit from the Corps pursuant to section 404 of the CWA, the City of Ferris and SOC filed their Original Complaint, Application for Temporary Restraining Order, and Application for Preliminary Injunction under the citizens' suit provision of the CWA. They sought to enjoin the further removal of water from the ponds. The City of Ferris and SOC also asked for a declaration that the Corps and the EPA had either misinterpreted the CWA by concluding that Trinity did not require a section 404 permit to drain the ponds or had failed in their duties under section 404. The next day, citing the need to prevent further drainage of the ponds, the district court issued a TRO enjoining Trinity from draining or otherwise altering wetlands located on the Skyline Landfill property. ⁸

In the weeks that followed, the EPA and the Corps filed a Motion to Dismiss arguing that no permit was required for Trinity's draining activity. Nonetheless, on May 3, 1990, the district court rendered its decision in a published opinion, Save Our Community v. EPA, 741 F.Supp. 605, 617 (N.D.Tex.1990), enjoining Trinity from "draining, dredging, building on, discharging into or otherwise altering, by any means, the seven ponds classified as wetlands ... unless and until Trinity procures a § 404(b) permit from the Corps for the activities listed above, or until the entry of final judgment or until further order of this Court." Because it believed that, "in light of its ruling, the Corps and the EPA [would] carry out their duty to make a determination under § 404(b)," it refused to grant injunctive relief against the Corps or the EPA.

In reaching this conclusion, the district court engaged in a policy-based analysis of the CWA--its legislative history, regulatory guidelines issued pursuant to it, and particular language excised from cases applying it. Focusing nearly entirely on the clearly destructive aspects of Trinity's draining project, and offended by what it perceived to be a direct subterfuge of section 404 by permitting a landowner to drain a wetland and then claim "[p]ermit for what wetland?", the district court held:

[A]s a matter of law that pursuant to the Clean Water Act, its regulations, and relevant case law § 404(b) of the Act requires a permit where draining a wetland presents the threat of significant alteration or destruction of the wetland.

741 F.Supp. at 615.

Despite a fact finding that "[s]ome minor discharges ha[d] occurred," and ignoring the urging of amici curiae--the Environmental Defense Fund and the National Wildlife Federation--to "consider a supplemental basis for its ruling that takes into account discharges," the district court refused to consider the issue of discharge in making its decision: "Because the Court decides that the draining activities in this case require a § 404(b) permit, it need not rule on the issue of whether a de minimis discharge requires a permit." Id. at 613 n. 11. Because the parties continued to refer to alleged discharges in subsequent proceedings, the court continued to mention them. But it always found them irrelevant to its decision.

On June 13, 1990, SOC moved for summary judgment and a permanent injunction, claiming that no genuine disputed issue of fact remained following the district court's prior ruling. At this juncture, once again, Trinity and the Federal defendants contended that the district court lacked jurisdiction over the subject matter because Trinity's draining activity did not require a section 404 permit. The district court, however, found jurisdiction and awarded summary judgment and a permanent injunction. It ordered that Trinity pay SOC's attorneys' fee as well as costs. The court asserted that if Trinity's activity is "viewed as a whole," it unquestionably requires a permit. According to the court, "[t]o divorce the drainage of the wetlands from their subsequent filling with waste matter is to be blinded by abstractions and to ignore the actual controversy between the parties."

On appeal, Trinity challenges the district court's ruling that draining activities that significantly alter wetlands require a section 404 permit. Trinity also takes issue with the district court's assessment of SOC's attorneys' fees, expenses, and court costs against it.

II. DISCUSSION

A. Standing ⁹

As a preliminary matter, Trinity challenges SOC's Article III standing to sue as seeking enforcement of the CWA under the Act's citizen suit provision. ¹⁰ Standing analysis focuses upon "[w]hether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy." Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). SOC seeks to represent the interests of its members. Such "representational standing" is appropriate where: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." O'Hair v. White, 675 F.2d 680, 691 (5th Cir.1982) (en banc) (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53...