188 F. Supp. 3d 641
W.D. Mich.2016Background
- Marquette County Road Commission (MCRC) sought a §404 dredge-and-fill permit from Michigan (MDEQ) to fill ~25 acres of wetlands for a road; MDEQ transmitted the application to EPA, Corps, and FWS.
- EPA issued objections under §404(j), concluding the proposal failed the 404(b)(1) guidelines (e.g., not the least environmentally damaging practical alternative; inadequate minimization/mitigation). EPA continued to negotiate with the State and applicant and later reiterated unresolved objections.
- MDEQ declined to issue the permit within the statutory time, so permitting authority transferred to the Army Corps of Engineers; the Corps informed MCRC it would require a new application to act, and MCRC declined to file one.
- MCRC sued EPA, the EPA regional administrator, and the Corps under the APA and CWA seeking declaratory and injunctive relief (claims: EPA objections arbitrary/capricious, ultra vires, failed to list required conditions, procedural failures; Corps constructively denied application).
- Defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6); court considered whether EPA objections are ‘‘final agency action’’ and whether Corps was required to act on the state-filed application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are EPA’s §404 objections final, reviewable agency actions under the APA? | EPA’s objections are final EPA action affecting MCRC’s rights and thus reviewable. | EPA objections are interlocutory/tentative steps in a continuing process and not final under Bennett. | Held: Not final. EPA objections are tentative; Corps (or EPA) may still act later, so APA review is unavailable. |
| Do EPA objections impose legal consequences (Bennett second prong)? | Transfer to Corps changes substantive regime and imposes burdens/costs making EPA action effectively final. | Objections do not create new legal obligations or conclusively determine rights; applicant still may seek Corps permit. | Held: No legal consequences sufficient for finality; burdens of further process insufficient. |
| Does the Leedom ultra vires exception permit review (EPA exceeded authority or failed to list conditions)? | EPA exceeded statutory authority by objecting on discretionary/state matters and failed to list required permit conditions. | EPA acted within §404(j) authority; it listed conditions in its December 4, 2012 letter; objections were based on guidelines. | Held: Leedom inapplicable. EPA provided conditions and did not commit a patent usurpation of authority. |
| Did the Corps constructively deny MCRC’s application by failing to act on the state-filed application? | Corps’ inaction amounted to constructive denial; court should compel Corps to issue permit. | Corps was not required to act on the state-filed application; applicant must submit a complete Corps application under Corps regulations. | Held: Dismissed. Corps had no legal duty to act on the state-filed materials; MCRC must file a proper Corps application; court may not compel issuance. |
Key Cases Cited
- Friends of Crystal River v. EPA, 35 F.3d 1073 (6th Cir.) (discusses reviewability of EPA objections to state §404 permits)
- Bennett v. Spear, 520 U.S. 154 (test for final agency action under the APA)
- Sackett v. EPA, 566 U.S. 120 (EPA compliance orders are final when they impose binding obligations)
- Jama v. Dep’t of Homeland Sec., 760 F.3d 490 (6th Cir.) (finality requirement non-jurisdictional; APA claims heard under §1331)
- Norton v. S. Utah Wilderness Ass’n, 542 U.S. 55 (§706(1) limits on compelling agency action legally required)
- Leedom v. Kyne, 358 U.S. 184 (Leedom ultra vires exception for review of purportedly unlawful agency action)
- American Paper Inst. v. EPA, 890 F.2d 869 (7th Cir.) (EPA objections to permits often non-final)
- Champion Int’l Corp. v. EPA, 850 F.2d 182 (4th Cir.) (objections are interlocutory when agency intends further administrative action)
- Michigan Peat Co. v. EPA, 175 F.3d 422 (6th Cir.) (distinguishes finality when agency has nothing left to do)
- Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (delineates EPA and Corps roles under §404)