U.S. v. Brink

• Decision Date: 06 June 2011
• Docket Number: Civil Action No. C–10–243.
• Citation: 795 F.Supp.2d 565
• Parties: UNITED STATES of America,v.Michael BRINK, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

795 F.Supp.2d 565

UNITED STATES of America,

v.Michael BRINK, et al., Defendants.

Civil Action No. C–10–243.

United States District Court,S.D. Texas,Corpus Christi Division.

June 6, 2011.

Charles Wendlandt, Jr., U.S. Attorney's Office, Corpus Christi, TX, for United States of America.Bradford W. Hill, Jr., Hill & Finkel LLP, Houston, TX, Howard R. King, Howard R. King, Attorney at Law, Kingwood, TX, for Defendants.

ORDER

JANIS GRAHAM JACK, District Judge.

Pending before the Court are Plaintiff's Rule 56 Motion for Partial Summary Judgment, (D.E. 20), and Plaintiff's Rule 56 Motion for Summary Judgment. (D.E. 22, D.E. 23.) For the reasons stated herein, the Government's Summary Judgment Motions are hereby GRANTED.

I. Jurisdiction

The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1345 as this action is brought by the United States under the Clean Water Act, 33 U.S.C, § 1251 et seq.

II. BackgroundA. Procedural Background

This is a civil action brought by the United States to enforce the Clean Water Act. In a Complaint filed in this Court on July 20, 2010, the Government alleges that Defendants Michael Brink and Dr. Steven Kalter, who own land at the confluence of La Para Creek and the Nueces River, constructed a dam a short distance from the Nueces River. The Government alleges that, prior to constructing their dam, the Defendants were required to obtain a Section 404 permit from the U.S. Army Corps of Engineers pursuant to 33 U.S.C. §§ 1311(a), 1319, and 1344, and that, because Defendants failed to obtain a permit, they are in violation of the Clean Water Act. (D.E. 1, D.E. 23.)

Defendants deny that La Para Creek constitutes “waters of the United States” subject to the Government's jurisdiction under the Act. (D.E. 19 at ¶ 6; D.E. 27 at 2.) Defendants also deny that they “discharged” “pollutants” into “waters of the United States” for purposes of establishing liability under the Act. (D.E. 27 at 2.) Finally, Defendants raise the affirmative defenses of waiver and estoppel and denial of equal protection. (D.E. 19 at 3–4).

The Government has moved for summary judgment on its Clean Water Act claim, (D.E. 23), and has also moved for partial summary judgment on the Defendants' affirmative defenses, (D.E. 20.) Defendants have timely responded to both motions. (D.E. 27, D.E. 30.)

B. Facts Established On Summary Judgment

The summary judgment evidence establishes as follows:

1. The Waters

The Nueces River encompasses an area of approximately 17,000 square miles, and includes all or parts of Bee County, Live Oak County, Jim Wells County, Nueces County, San Patricio County, and several other counties in South Texas. (D.E. 23, Ex. 3 (U.S. Geological Survey map); D.E. 23, Ex. 1 (map of Nueces River area).) Lake Corpus Christi is a body of water impounded by dams constructed on the Nueces River. (D.E. 23, Ex. 3 (U.S. Geological Survey)). The Government's maps show that La Para originates north of the Nueces River and runs southwesterly into the Nueces River and Lake Corpus Christi. (D.E. 23, Ex. 3 (U.S. Geological Survey map); D.E. 23, Ex. 1 (map of Nueces River area).) ¹

2. Construction of the Dam and Initial Site Investigation

Defendants Michael (“Mike”) Brink and Dr. Steven Kalter are neighbors who own land on either side of La Para Creek. In May 2009, Mr. Brink met with Dr. Kalter and discussed erosion problems on their ranches as well as lack of water for stock animals, wildlife and marine life. In order to confront these problems, the neighbors agreed to build an “erosion control system” on their adjoining properties, and to share the cost. (D.E. 27, Ex. D (Letter dated July 5, 2009 from Mike Brink to Lloyd Mullins) at 1.) The structure would be composed of concrete and, they believed, would serve to impound less than 94 acre-feet of water in the creek.

Around the same time, Mr. Brink contacted the Texas Commission on Environmental Quality (“TCEQ”) and discussed his intentions to build the structure. ( Id. at 1.) When Mr. Brink asked whether “any specific permit was necessary for the fill he was choosing to set below 94 feet” he was “instructed that no such permit was necessary if the impoundment was to hold less than 200 acre feet of water[.]” (D.E. 27, Ex. G (Letter dated October 8, 2009, from Craig Sico to Desiree Edwards) at 2).²

Defendants did not consult the U.S. Army Corps of Engineers (“USACE”) to inquire whether a federal permit might be required. Mr. Brink attests that, at the time, he believed the individual he contacted at the TCEQ was the appropriate individual with whom to inquire. However, he subsequently learned that the individual was not a member of the TCEQ's water quality division; and that if he had reached an individual within the water quality division he would have been advised that further permits were required, including a USACE Section 404 permit. (D.E. 27, Ex. J (Letter dated October 30, 2009 from Mike Brink to David Weston) at 1.)

On June 6, 2009, Mr. Brink had workers start clearing brush and leveling the construction site on either side of La Para Creek. (D.E. 27, Ex. D (Letter dated July 5, 2009 from Mike Brink to Lloyd Mullins) at 2.) Construction began soon thereafter. ( Id.)

On June 22, 2009, the TCEQ Corpus Christi Region Office telephoned the South Texas Watermaster Program Office (“STWM”) regarding a complaint from a Live Oak County resident that a “dam” was being constructed on La Para Creek.³ The USACE, as well as various local authorities, were subsequently informed of the issue as well. (D.E. 27, Ex. B (STWM Complaint/Inquiry Form, dated June 22, 2009) at 1.)

On June 24, 2009, a site investigation was conducted. The investigation revealed that the structure under construction on La Para Creek was approximately thirty (30) feet wide, approximately two hundred (200) feet long, and approximately six (6) feet high. ( Id.) Mr. Brink, who arrived shortly thereafter, stated that he would be pouring concrete to complete the structure within the next few days. ( Id.)

At the June 24, 2009 site investigation, Mr. Brink was informed by Albert Garces, Watermaster Specialist with the TCEQ, that the structure might not meet the criteria to be exempt under the Texas Water Code (“TWC”) and the Texas Administrative Code (“TAC”), which both generally provide that “a person” may, without obtaining a permit, construct for non-commercial purposes “on the person's own property a dam or reservoir with normal storage of not more than 200 acre-feet of water for domestic and livestock purposes.” See TWC § 11.142(a); 30 TX ADC § 297.21.⁴

According to Defendants, however, “[n]o notice was given to the Defendants to holdup on pouring concrete.” (D.E. 27 at 4.) Therefore, on June 27, 2009, Mr. Brink had 210 yards of concrete delivered to the job site on La Para Creek. Over the next few days, 15 crewman arrived to pour and finish the concrete. (D.E. 27, Ex. D (Letter dated July 5, 2009 from Mike Brink to Lloyd Mullins) at 2.) On June 30, 2009, the dam was completed. ( Id.)

3. The Second Site Investigation and Actions by Agencies

On June 30, 2009, the same day the dam was completed, Lloyd Mullins, a Supervisor at the Corpus Christi Regulatory Field Office of the USACE, sent Mr. Brink a letter stating that the office had received notification of “possible unauthorized fill” on Brink's property. The letter further stated:

The U.S. Army Corps of Engineers regulates certain work in/or affecting waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. Our preliminary investigation of the activity indicates it was conducted without the appropriate Department of the Army permit ... You are requested to provide, in writing, information on this activity to assist us in our evaluation and in determining appropriate administrative or legal action ... Be aware that the Corps of Engineers holds the property owner and all contractors responsible for unauthorized activities.

(D.E. 27, Ex. C (Letter dated June 30, 2009, from Lloyd Mullins to Mike Brink) at 1).

On July 5, 2009, Mr. Brink responded to Mr. Mullins' letter, providing an account of the construction activities on La Para Creek and stating that he had contacted the TCEQ and had been advised that he did not need a permit. (D.E. 27, Ex. D (Letter dated July 5, 2009 from Mike Brink to Lloyd Mullins) at 2.)

On July 7, 2009, the STWM conducted a second site investigation with both Mr. Brink and Dr. Kalter present, along with representatives of the Live Oak County Floodplain Administrator (“FPA”), the City of Corpus Christi, the Nueces River Authority, the General Land Office (“GLO”), and the USACE. (D.E. 27, Ex. B (STWM Complaint/Inquiry Form, dated June 22, 2009) at 1.)

During the second site investigation, each of the authorities present gave the Defendants a preliminary assessment of their agency's position regarding the structure.

Mr. Garces of the TCEQ informed Brink and Kalter that if their dam and reservoir were found not to be in compliance with the TWC and the TAC, they would have to modify or remove the structure, or obtain a permit from the TCEQ through the permitting process. ( Id. at 2.)

Staff from the City of Corpus Christi indicated that they believed that the segment of La Para Creek where the dam had been constructed was within the City's flood easement, and that the landowners therefore might not have a right to place the dam within the City's easement. ( Id.)

Staff from Live Oak County also indicated that the area might be within the designated floodplain of Live Oak County and that the FPA might require a permit. ( Id.)

Mr. Bill O'Hara of the GLO indicated that, based on his preliminary assessment, the segment of La Para Creek on which Defendants had placed their dam was “non-navigable” and that the GLO would not pursue ownership of the bed and banks of this part of the creek at this time. ( Id.)

Also at the second site investigation,...