Foster v. United States Environmental Protection Agency, 2:14-cv-16744

Background

In 2010 Foster (through Foster Farms, LLC and M&P) hired Walters Excavating to clear, fill, and level "Pad 4" on the Neal Run Crossing property; work filled four headwater reaches (RR1–RR4) and constructed a sediment pond without a Section 404 Clean Water Act permit.
EPA inspectors visited the site on September 9, 2010, observed water and partially filled channels, warned the excavator that a §404 permit was likely required, and later confirmed no permit had been obtained.
Engineering and biological investigations (Randolph Report, Corps verification, EPA experts, TauDEM modeling, aquatic invertebrate and water-chemistry sampling) showed RR1–RR4 were headwater streams connected across a hayfield to Blackwell Creek and ultimately to Neal Run (a navigable-in-fact water via downstream connection to the Little Kanawha River).
Experts found RR4 had intermittent/seasonal flow (approx. 4–8 months/year), hydrologic/chemical/biological connections to downstream waters, and that the filled reaches exported water, sediment, solutes and supported aquatic life relevant to downstream integrity.
Foster was advised informally by an engineer (Metheny) that a permit was not needed; he later sought Randolph and other consultants after EPA scrutiny. EPA issued an Administrative Compliance Order in 2012 and the Corps verified jurisdiction; EPA pursued enforcement and penalties.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs discharged a pollutant into waters of the United States without a §404 permit	Foster argued the filled features were non-jurisdictional (no relatively permanent flow or significant nexus) and thus no §404 permit was required	EPA argued the filled reaches were headwater streams with relatively permanent/seasonal flow and a significant nexus to navigable Neal Run, so a §404 permit was required	Held for EPA: plaintiffs discharged fill (a pollutant) from point sources into WOTUS without a permit
Whether the filled reaches qualify as WOTUS under Rapanos (relatively permanent flow test)	Foster contended RR4 and others were ephemeral or non-jurisdictional across the hayfield	EPA showed RR4 had flow several months/year and physical OHWM upstream and downstream of the hayfield linking it to downstream waters	Held: RR4 exhibited at least seasonal (relatively permanent) flow and is jurisdictional under Rapanos plurality test
Whether the filled reaches have a significant nexus to a traditional navigable water (Kennedy test)	Foster argued lack of hydrologic/biological/chemical connection across the hayfield and therefore no significant effects on downstream Neal Run	EPA presented hydrologic modeling, field observations, water chemistry, and biological data demonstrating contributions of flow, solutes, and biota affecting downstream integrity	Held: RR1–RR4 have a significant nexus to Neal Run (affect chemical, physical, biological integrity) and are WOTUS under Kennedy's standard
Liability of named owners/actors	Foster claimed reliance on engineering advice and contested scope of control; argued limited responsibility	EPA argued owners and decisionmakers (Foster, Foster Farms, M&P) directed/paid for the work and thus are liable persons under the CWA	Held: Foster, Foster Farms, and M&P are "persons" and liable for directing/causing the unauthorized discharge

Key Cases Cited

Lambert v. United States, 915 F. Supp. 797 (S.D. W. Va. 1996) (defining liability for persons who perform or control work leading to CWA violations)
United States v. Pozsgai, 999 F.2d 719 (3d Cir. 1993) (fill material qualifies as a pollutant under the CWA)
Rapanos v. United States, 547 U.S. 715 (U.S. 2006) (plurality and Kennedy concurrence define alternative tests for WOTUS: relatively permanent flow and significant nexus)
Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278 (4th Cir. 2011) (significant-nexus inquiry need not rely on laboratory tests or specific quantitative thresholds)
Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, [citation="603 F. App'x 149"] (4th Cir. 2015) (affirming standard that effects need not be large but must be more than speculative or insubstantial)
United States v. Donovan, 661 F.3d 174 (3d Cir. 2011) (describing activities and functions by which headwater streams can form a significant nexus)
United States v. Cundiff, 555 F.3d 200 (6th Cir. 2009) (discussing contribution of headwater streams to downstream waters and nexus analysis)
United States v. Brink, 795 F. Supp. 2d 565 (S.D. Tex. 2011) (seasonal creeks can meet Rapanos plurality "relatively permanent" standard)
United States v. Moses, 496 F.3d 984 (9th Cir. 2007) (tributary with limited months of flow treated as a water of the United States)