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Coalition to Save Menominee River Inc. v. U.S. Environmental Protection Agency

United States District Court, E.D. Wisconsin

October 20, 2019

COALITION TO SAVE THE MENOMINEE RIVER INC., Plaintiff,
v.
US ENVIRONMENTAL PROTECTION AGENCY, ACTING ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY, U.S. ARMY CORPS OF ENGINEERS, and SECRETARY OF THE U.S. ARMY, Defendants, and AQUILA RESOURCES INC., Interpleader Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge

         Plaintiff 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 be dismissed.

         BACKGROUND

         A. Statutory and Regulatory Background

         Congress 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.” § 1344(c).

         The Act 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).

         In 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.

         If the 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).

         Only 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).

         B. Allegations Contained in the Amended Complaint

         The 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.

         Aquila 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. ¶¶ 57-58.

         The 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.

         On 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. ΒΆΒΆ 78-79. On May 24, 2018, the WRD issued a memo ...


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