The Historic Green Springs Inc. v. United States Envtl. Prot. Agency

Decision Date29 September 2010
Docket NumberCase No. 3:09–CV–00075.
Citation742 F.Supp.2d 837
CourtU.S. District Court — Western District of Virginia
PartiesThe HISTORIC GREEN SPRINGS, INC., Reginald Murphy, Jane Stuart Murphy, Sergio Sobral, and Gail Fleury Sobral, Plaintiffs,v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Lisa P. Jackson, as Administrator of the United States Environmental Protection Agency, William C. Early, as Acting Regional Administrator of the United States Environmental Protection Agency, Region III, and Louisa County Water Authority, Defendants.

OPINION TEXT STARTS HERE

David Sandburg Bailey, Jeter Marvin Watson, Environmental Law Group, PLLC, Richmond, VA, Tammy Lynn Belinsky, Attorney at Law, Copper Hill, VA, for Plaintiffs.Kenneth Carl Amaditz, Jody Helen Schwarz, United States Department of Justice, Washington, DC, Thomas L. Eckert, United States Attorneys Office, Roanoke, VA, Richard Harrison Sedgley, Aqua Law PLC, Richmond, VA, for Defendants.

Memorandum Opinion

NORMAN K. MOON, District Judge.

This matter is before the Court upon the Motion of Defendant Louisa County Water Authority to Dismiss under Rule 12(b)(6) for Failure to State a Claim and Failure to Join a Required Party, and the accompanying memorandum in support thereof, (docket nos. 12 and 13), Plaintiffs' Brief in Opposition to Motion of Defendant Louisa County Water Authority to Dismiss under Rule 12(b) (docket no. 14), Defendant Environmental Protection Agency's Motion to Dismiss, and the accompanying memorandum in support thereof (docket nos. 15 and 16), Plaintiffs' Memorandum in Opposition to Motion to Dismiss of the Defendant Environmental Protection Agency (docket no. 22), and Defendant Environmental Protection Agency's Reply in Support of its Motion to Dismiss (docket no. 26). This matter is also before the Court upon the Notice of Filing Certain State Court Records at the Request of the Court (docket no. 30), the Court's Order dated May 26, 2010, directing additional briefing by the parties on preclusion and abstention issues potentially raised by the related state court proceedings in Louisa County Circuit Court (docket no. 33), and the parties' subsequent responses thereto (docket nos. 34, 36, 37 and 40), and the additional memoranda filed by the parties with leave of Court concerning the related state court proceedings (docket nos. 32, 39 and 42).

After full consideration of the arguments and authorities set forth in the aforementioned papers, as well as those presented at the May 17, 2010 hearing on the pending motions to dismiss, for the following reasons, the Court will GRANT Defendant Environmental Protection Agency's Motion to Dismiss (docket no. 15), and will DENY AS MOOT Defendant Louisa County Water Authority's Motion to Dismiss (docket no. 14) in an accompanying Order, to follow.

I. Background

Historic Green Springs, Inc. (hereinafter HGS) is a not for profit land conservation organization established in 1970 and incorporated under the laws of Virginia. The purpose of HGS is to preserve approximately two hundred and fifty 18th and 19th century structures and the properties in the Green Springs National Historic Landmark District (hereinafter the Green Springs Landmark District), which is a 14,000–acre area of land administered by the National Park Service. The private landowners in the Green Springs Landmark District have voluntarily placed 13,000 of the 14,000 acres in conservation easements. Several thousand acres of conservation easements in the Green Springs Landmark District are held by HGS, and the National Park Service holds easements on approximately 8,000 acres. The purpose of the conservation easements was to “forego most or all development rights in favor of preservation of agricultural land uses and [to] protect the integrity of historic structures” within the Green Springs Landmark District. Complaint, at ¶ 9. In fulfilling its mission, HGS is charged not only with monitoring and enforcing its easements, but also protecting against any threat that may undermine the value or effectiveness of the other easements.

HGS is aggrieved by the Zion Crossroads Wastewater Treatment Plant (hereinafter “Zion Crossroads WWTP”) and the treated sewage allegedly discharged from that plant into an impoundment of Camp Creek, which is a small tributary to the South Anna River, York River, and the Chesapeake Bay. There are at least two properties in the Green Springs Landmark District upon which HGS holds land conservation easements through which Camp Creek allegedly flows. 1 Since the time the Zion Crossroads WWTP began discharging into Camp Creek, it is alleged that the Virginia Department of Environmental Quality (hereinafter “DEQ”) found evidence of pollution at the location where Camp Creek flowed into Wheeler Creek. The treated sewage discharge into Camp Creek, as well as several other actions taken or in contemplation by Louisa County,2 allegedly have had, and will continue to have, an adverse impact upon the agricultural and residential land uses of these properties.

The process by which Zion Crossroads WWTP was issued its water discharge permit is now challenged by HGS. Under the Clean Water Act, 33 U.S.C. §§ 1251–1387, it is unlawful for any party to discharge a “pollutant” from any “point source,” without previously having obtained, and complying with the terms of, a National Pollution Discharge Elimination System (hereinafter “NPDES”) permit. See 33 U.S.C. §§ 1311(a); 1342. The program is designed “to prevent harmful discharge into the Nation's waters.” Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). Under the NPDES program, the EPA initially is charged with the permitting system for each state, unless and until a State applies for a transfer of that permitting authority and the transfer is approved. Id. at 650, 127 S.Ct. 2518. In Virginia, the EPA ceased administering the program in 1975 “pursuant to a memorandum of understanding and the establishment of a state permit program by the State Board.” Chesapeake Bay Found., Inc. v. United States, 445 F.Supp. 1349, 1352 n. 3 (E.D.Va.1978). Following the approval of a state-run NPDES program, the EPA has continuing oversight responsibilities, in that [t]he State must advise the EPA of each permit it proposes to issue, and the EPA may object to any permit,” and [i]f the State cannot address the EPA's concerns, authority over the permit reverts to the EPA.” Nat'l Ass'n of Home Builders, 551 U.S. at 650 n. 1, 127 S.Ct. 2518.

The first Virginia Pollutant Discharge Elimination System (hereinafter “VPDES”) permit that was issued to the Zion Crossroads WWTP in 2002 by the Virginia State Water Control Board expired on March 28, 2007, and is not the subject of the instant suit. See Complaint, at ¶¶ 2, 47. The permit application for a reissued permit was completed on August 8, 2007, and on June 5, 2008, DEQ staff transmitted to the EPA by electronic mail a draft permit and fact sheet, which is a document containing the data and rationale underlying an action of the DEQ. See Complaint, at ¶¶ 61–65. In the email, DEQ staff stated: We are trying to get this permit processed quickly, so I'm hoping you can expedite your review. We are trying to get the public comment period started during the week of June 23; it would be helpful if you can get your review completed as early as possible during the week of June 16.” Id. at ¶ 66. While the Complaint raises several alleged deficiencies in the transmittal to the EPA, it principally alleges that neither the draft permit nor the fact sheet “disclose[d] ... the material fact that the subject sewage treatment plant is located on the boundary of a National Historic Landmark District that is administered by the National Park Service, and which sewage discharge flows through the Historic District.” Id. at ¶ 70. On June 12, 2008, the EPA responded by email, stating that “based on our review, we have no objection to the issuance of the permit.” Id. at ¶ 71. The State Water Control Board subsequently issued the VPDES permit for the Zion Crossroads WWTP on December 4, 2008. See id. at ¶ 2.

The non-discretionary duties that the EPA is alleged to have violated arise either directly or indirectly from the National Historic Preservation Act, 16 U.S.C. §§ 470 et seq. (hereinafter “NHPA”). Under Section 106 of the NHPA, any federal agency that has “direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State” or “any Federal department or independent agency having authority to license any undertaking” must study ways to avoid or mitigate any adverse impacts the undertaking could have upon historic properties included in, or eligible to be included in, the National Register. See 16 U.S.C. § 470f; see also Tyler v. Cuomo, 236 F.3d 1124, 1128 (9th Cir.2000). Section 110 of the NHPA provides that [p]rior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark, and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking.” 16 U.S.C. § 470h–2(f).

HGS filed suit in Louisa County Circuit Court challenging the issuance of the permit, and filed a separate suit in this Court. In this action, HGS claims first that in the permit-approval process, the EPA had failed to perform a non-discretionary duty under the Clean Water Act because it “approved” the permit without consideration of any potential adverse effect upon the Green Springs Landmark District. Alternatively, HGS argues that the EPA failed to perform a non-discretionary duty under the NHPA and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (hereinafter “APA”) on the same basis.

II. Standard of Review

A motion...

To continue reading

Request your trial
3 cases
  • Chesapeake Bay Found., Inc. v. Cnty. of Henrico
    • United States
    • U.S. District Court — Eastern District of Virginia
    • April 11, 2022
    ...Pollution Discharge Elimination System ("VPDES") through its Department of Environmental Quality. Historic Green Springs, Inc. v. U.S. E.P.A. , 742 F. Supp. 2d 837, 842 (W.D. Va. 2010) ; 9 Va. Admin. Code § 25-31-10 et seq."Although the primary responsibility for enforcement rests with the ......
  • United States v. Va. Res. Auth.
    • United States
    • U.S. District Court — Western District of Virginia
    • April 15, 2014
    ...applied.Martin-Bangura, 640 F. Supp. 2d at 736 (citing Whitley, 260 Va. at 489, 538 S.E.2d at 299); Historic Green Springs, Inc. v. U.S. E.P.A., 742 F. Supp. 2d 837, 849 (W.D. Va. 2010) (same).6 VRA has submitted a copy of the Final Order in Shenandoah County Circuit Court Case Number CL120......
  • United States v. Va. Res. Auth.
    • United States
    • U.S. District Court — Western District of Virginia
    • July 10, 2014
    ...(citing Martin-Bangura v. Virginia Dep't of Mental Health, 640 F. Supp. 2d 729, 736 (E.D. Va. 2009); Historic Green Springs, Inc. v. U.S. E.P.A., 742 F. Supp. 2d 837, 849 (W.D. Va. 2010)). Based on the Final Order in Shenandoah County Circuit Court Case Number CL12000-406-00, Dkt. No. 30-13......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT