United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
Coalition to Save the Menominee River Inc. filed this action
for declaratory relief against the United States
Environmental Protection Agency (EPA), the acting
administrator of the EPA, the United States Army Corps of
Engineers, and the Secretary of the United States Army
(Federal Defendants), asserting that the Corps, rather than
the Michigan Department of Environmental Quality (MDEQ),
should exercise jurisdiction over a permit relating to
Intervenor-Defendant Aquila Resources Inc.'s proposal to
construct the Back Forty Mine along the Menominee River in
Menominee County, Michigan. Both the Federal Defendants and
Aquila filed motions to dismiss. For the following reasons,
the defendants' motions will be granted and the case will
Statutory and Regulatory Background
enacted the Clean Water Act (CWA) in 1972 “to restore
and maintain the chemical, physical, and biological integrity
of the Nation's waters.” 33 U.S.C. § 1251(a).
The Act generally prohibits the discharge of pollutants into
navigable waters without a permit. 33 U.S.C. § 1311(a).
Section 404(a) of the CWA authorizes the Secretary of the
Army, acting through the Army Corps of Engineers, to issue a
Section 404 permit for the discharge of dredged or fill
material into navigable waters. § 1344(a). The EPA
retains oversight of the Section 404 permitting program and
may veto the Corps' approval of a permit when the dredged
or fill material would have “an unacceptable adverse
effect on municipal water supplies, shellfish beds and
fishery areas . . ., wildlife, or recreational areas.”
allows a state to request permission from the EPA to
administer its own individual and general permit program for
the discharge of dredged or fill material into
“navigable waters . . . other than those waters which
are presently used, or are susceptible to use in their
natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce . . . including
wetlands adjacent thereto.” § 1344(g)(1). If the
EPA approves a state's Section 404 permit program, the
federal permit program is suspended, except for those waters
exempted from the assumption, and the state assumes
jurisdiction over the permitting process. § 1344(h).
Even though the federal program is suspended, the federal
government acts as an overseer of the state's process by
reviewing any action the state takes with respect to Section
404 permits. § 1344(j).
accordance with § 1344(j), the state must provide the
EPA with a copy of every permit application it receives as
well as the proposed permit the state intends to issue. The
EPA Administrator then provides copies of the application to
the Corps and to the U.S. Department of the Interior (DOI).
If the EPA intends to comment on the state's handling of
the application, it must notify the state within 30 days of
its intent to do so. “[A]fter consideration of any
comments made in writing with respect to such application or
such proposed general permit” from the Corps or DOI,
the EPA must provide its comments to the state within 90
days. Id. Once a state receives notice that the EPA
intends to comment on the application, the state may not
issue a permit until it has received the EPA's comments
or the 90-day commenting period has passed. The EPA may also
request that the state submit additional information that it
determines is necessary for its review.
EPA objects to the proposed permit, the state “shall
not issue such proposed permit” and may either issue a
revised permit that resolves the EPA's objections, deny
the permit application, or request a public hearing.
Id. Permitting authority only transfers back to the
Corps if the state does not take any action in response to
the EPA's objection. Id. At that time, the Corps
conducts its own analysis of the permit application.
See 40 C.F.R. § 233.50(i).
Michigan and New Jersey have been federally approved to
administer Section 404 permit procedures. The EPA approved
Michigan's Section 404 permit program in 1984, after the
Corps entered into a Memorandum of Agreement (MOA) with the
State of Michigan on April 3, 1984. See 49 Fed. Reg.
38, 947 (Oct. 2, 1984).
Allegations Contained in the Amended Complaint
Coalition is a non-stock, non-profit corporation organized
under Chapter 181 of the laws of the State of Wisconsin. The
purpose of the Coalition is to educate and support citizens
regarding environmental issues affecting the Menominee River,
including the potential impacts of Aquila's proposed Back
Forty Mine project. Am. Compl. ¶ 13, Dkt. No. 18.
seeks to build a polymetallic zinc, copper, and gold mine,
referred to as the Back Forty Mine, along the Menominee River
in Menominee County, Michigan. Aquila submitted a Section 404
permit application to the MDEQ on November 16, 2015. Aquila
later withdrew the application after the EPA objected to the
permit and submitted a second application in January 2017.
Id. ¶ 45. On January 26, 2017, the MDEQ issued
a Request for Clarification to Aquila, which explained that
Aquila had not properly identified the extent of the impact
the project would have on wetlands, groundwater, and surface
water resources. Id. ¶ 46. Aquila submitted an
updated application in October 2017. On December 8, 2017, the
MDEQ declared that Aquila's joint permit application was
administratively complete, scheduled a public hearing on the
permit application, and provided the EPA with a copy of the
Section 404 permit application. Id. ¶¶
MDEQ held a public hearing on the permit on January 23, 2018,
and received public comment until February 2, 2018.
Id. ¶ 60. The MDEQ forwarded a summary of the
public comments to Aquila on March 2, 2018, and invited a
response. On March 8, 2018, the EPA objected to the proposed
permit, which triggered the 90-day deadline for its
objections to be resolved. Id. ¶ 63. The
EPA's objection letter required that various actions be
taken by Aquila and that specific information be provided for
the objections to be resolved. Id. ¶ 64. On
March 19, 2018, the MDEQ provided Aquila with a seven-page
letter summarizing the type of information it needed to
provide in order to resolve the EPA's objections. The EPA
reiterated on March 21, 2018, that all of the MDEQ's
issues would need to be addressed to satisfy the EPA's
objections. Id. ¶ 71. Aquila submitted its
responses to the EPA's objections in April 2018.
April 30, 2018, the MDEQ's Water Resources Division
(WRD), which was charged with reviewing the permit,
recommended denying the permit because the project was not
consistent with state permitting requirements. Id.
¶ 76. On May 2, 2018, the WRD provided the EPA with its
findings. Id. ¶ 77. In a May 3, 2018 letter to
the MDEQ, the EPA indicated that some of its March 8, 2018
objections had been resolved by the information Aquila had
provided and that it would consider addressing the remaining
objections if the MDEQ imposed appropriate conditions that
would require Aquila to provide the missing data at a later
point. Id. ¶¶ 78-79. On May 24, 2018, the
WRD issued a memo ...