Case Information
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON
RON FOSTER, individually, and
FOSTER FARMS, LLC and
MARKETING & PLANNING SPECIALISTS
LIMITED PARTNERSHIP,
Plaintiffs,
v. Civil Action No. 2:14-cv-16744
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY and
SCOTT PRUITT, in his official capacity
as Administrator, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Defendants
MEMORANDUM OPINION AND ORDER and
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court conducted a bench trial on the counterclaim of the defendants (EPA group) against the plaintiffs (Foster group)
on August 14 through 18, 2017. [1]
The defendants claim that the plaintiffs filled “waters of the United States” without a Section 404 Clean Water Permit to
do so when they filled four headwater streams in 2010 on their
real estate acquired by them in 2009, known as the “Neal Run
Crossing property,” near Parkersburg, West Virginia.
I. FINDINGS OF FACT The following discussion represents the court’s findings of fact, made by a preponderance of the evidence.
A. Neal Run Crossing Property Ron Foster is a citizen of West Virginia who resides in Putnam County, West Virginia. Jt. Stip. ¶ 1. Foster Farms, LLC.
is a Kentucky limited liability company. Id. at ¶ 2. Marketing &
Planning Specialists (“M&P”) is a Nevada limited partnership
authorized to do business in West Virginia. Id. at ¶ 3.
Prior to its purchase by Foster, the Neal Run Crossing property was owned by Endurance Group, LLP (“Endurance”). Id. at
¶ 6. While Endurance owned the property, it filled and altered a
stream in an area of the property known as “Pad 1” without a Clean
Water Act section 404 permit. Id. at ¶ 7. The Pad 1 area and
this CWA violation is unrelated to the one at issue in this
matter. Before the EPA could begin an enforcement action related
to the Pad 1 CWA violations, Endurance was forced into bankruptcy
on March 3, 2009, for reasons unrelated to the CWA violation. Id.
at ¶ 9; Aug. 18, 2017 Trial., Tr. at 80-82.
On October 19, 2009, the bankruptcy court issued an order that permitted the sale of the 90-acre Neal Run Crossing
property to Foster free of all pre-bankruptcy liability, with the
exception that $50,000 be set aside in a trust to fund restoration
work to address the Endurance Group’s CWA violations. Id. at ¶
10. The bankruptcy court’s order limited the remediation sought
by EPA and the U.S. Army Corps of Engineers (“Corps”) to an area
within 30 feet of the toe of the fill made by Endurance. Jt.
Stip. ¶ 10. The restoration work was completed in 2011.
On October 29, 2009, Foster assigned ownership of approximately 40.5 acres of the Neal Run Crossing property to M&P,
of which he is the general partner and manager. Id. at ¶ 11.
Foster assigned ownership of the near 50-acre balance of the Neal
Run Crossing property to Foster Farms, LLC, of which he is the 80%
owner. Id. As a practical matter, Foster is the decision maker
for both entities with respect to all matters at issue herein.
The Neal Run Crossing property has been divided into five “pads” for development purposes. Id. at ¶ 15. The alleged
CWA section 404 violations at issue in this litigation occurred on
the portion of the Neal Run Crossing property known as “Pad 4” or
“the Site.” Id. at ¶ 4. The Pad 4 area is owned in part by M&P
and in part by Foster Farms. Id. at ¶ 16.
Before plaintiffs conducted development work on Pad 4, four streams, identified as “relevant reaches” RR1, RR2, RR3 and
RR4, existed on the Site. U.S. Ex. 25; U.S. Ex. 20 at AR0000483-
484; U.S. Ex 284. RR1, RR2, and RR3 flowed into RR4 prior to
their fill. U.S. Ex. 20 at AR0000483; U.S. Ex. 284. RR4 exited
the western boundary of the Site, crossed a neighbor’s hayfield,
and joined Blackwell Creek (also known as the First Unnamed
Tributary to Neal Run). Stokely Test., Tr. at 128-129, 132-133,
137-138; 145; Andreescu Trial Tr. 59-60 (Aug, 15, 2017); U.S. Exs.
279 & 303B.
Blackwell Creek joins the Second Unnamed Tributary to Neal Run. Jt. Stip. ¶ 25. Blackwell Creek is mapped as having
intermittent-seasonal flow by the United States Geological Survey.
U.S. Ex. 5B at AR0000660. Multiple photographs depict flowing
water in Blackwell Creek at various times of year. Lutte Test.,
Tr. at 45-46; 47-48 (Aug. 16, 2017); U.S. Ex 187 at USEPA0001244,
U.S. Ex. 246.
The Second Unnamed Tributary to Neal Run is a relatively permanent water, which flows into Neal Run. Jt. Stip. ¶ 26. Neal
Run is a relatively permanent water, which flows into the Little
Kanawha River. Id. at ¶ 27. The Little Kanawha River flows into
the Ohio River at Parkersburg. Id. A portion of Neal Run,
extending 2.4 miles from its confluence with the Little Kanawha
River, has been identified by the Corps as a “navigable water of
the United States” for purposes of Section 10 of the Rivers and
Harbors Act of 1899. Id.
The Little Kanawha River is navigable-in-fact, and has been identified by the Corps as a “navigable water of the United
States” for purposes of Section 10 of the Rivers and Harbors Act
of 1899. Id. at ¶ 28. The approximate distance (in terms of
river/stream miles) from the confluence of RR4 and Blackwell Creek
to the designated navigable portion of Neal Run is 3.1 miles. See
U.S. Ex. 275; Jt. Stip. ¶ 27.
B. EPA’s September 9, 2010 Site Visit On September 9, 2010, EPA inspectors Stephanie Andreescu and Todd Lutte were in West Virginia visiting other sites
unrelated to this case when they decided to visit the Neal Run
Crossing property to inspect the Pad 1 violations, which were not
yet remedied at the time. Andreescu Trial Tr. 35-36. The visit
was due, in part, to complaints the EPA received from Mr. and Mrs.
Blackwell, who owned the neighboring property, about flooding on
their property that they believed was caused by the rerouted
stream. Id. at 34-35.
While at the property, the EPA inspectors observed a billboard advertising the property for sale by Foster Farms and
depicting a development plan superimposed on a topographic map.
Id. at 43; 46-48; U.S. Ex. 7 at USEPA001237. Because the
billboard showed proposed development in the Pad 4 area where
streams appeared to be located, the EPA inspectors went to examine
Pad 4. Andreescu Trial Tr. 48. The EPA inspectors did not call
the phone number listed on the billboard or otherwise attempt to
obtain permission from plaintiffs prior to entering the Pad 4
area. Andreescu Trial Tr. at 48-49.
To reach Pad 4, the EPA inspectors followed Blackwell Creek upstream and then crossed the adjoining hayfield. Id. at
49-50; U.S. Ex. 5A. When they reached the Pad 4 area, the
inspectors observed that the Site had been cleared and grubbed of
vegetation. Andreescu Trial Tr. 50. The inspectors photographed
a stream channel that was later identified as RR4 that had been
partially filled with dirt, rocks, and uprooted vegetation.
Andreescu Trial. Tr. 50-55; Lutte Test., Tr. at 10-13, 14-15 (Aug.
15, 2017); U.S. Ex. 7 at USEPA001248, 1249, 1250, 1252. Upstream
from the disturbance, the inspectors observed the stream channel
where Mr. Lutte observed water. Andreescu Trial Tr. 55-56; Lutte
Test., Tr. at 15-16 (Aug. 15, 2017); U.S. Ex. 7 at USEPA 001253.
While investigating the stream channel above the disturbance, the EPA inspectors encountered Bryon Scott Moore, a
neighbor who represented that he had permission to be on the
property to collect firewood and berries. Andreescu Trial Tr. 57;
Moore Dep. Tr. at 19. Moore did not actually have permission to
be on the property. Moore Trial Tr. 29. Moore offered to show
the EPA inspectors where the partially filled streams started, but
they were unable to find them due to dense vegetation. Moore Dep.
Tr. at 29, 33-34; Andreescu Trial Tr. 57-58; Lutte Test., Tr. at
16.
The EPA inspectors also encountered plaintiffs’ contractor, Dave Walters from Walters Excavating while at the
Site. Andreescu Trial Tr. 58-59; Lutte Test., Tr. at 17-18 (Aug.
15, 2017). Foster hired Walters Excavating to clear, fill, and
level the Site and hired Fox Engineering to design the plans for
pad construction on the Site. Foster Test., Tr. at 66-67, 74.
The EPA inspectors asked Walters if a section 404 permit had been
obtained for the Pad 4 work and advised him that one was likely
required. Andreescu Trial Tr. at 59; Lutte Test., Tr. at 17, 53-
54 (Aug. 15, 2017); David Walters Test., Tr. at 113-114 (Aug. 15,
2017). They also gave Walters their contact information and then
exited the Site. Lutte Test., Tr. at 17-18 (Aug. 15, 2017).
As the EPA inspectors left the Site, they observed the stream channel as it exited the Site and continued into the
neighboring hayfield. Andreescu Trial Tr. 59-61; Lutte Test., Tr.
at 18-19 (Aug. 15, 2017). The EPA inspectors observed that the
bed, bank, and ordinary high water mark (sometimes, “OHWM”)
vanished in the center of the hayfield, but that there still
existed a concave pathway in the landscape through which water
would flow. Andreescu Trial Tr. at 60; Lutte Test., Tr. at 18-22
(Aug. 15, 2017). The pathway reformed a more distinct channel
with bed, bank and ordinary high water mark at the end of the
hayfield and then joined Blackwell Creek. Andreescu Trial Tr. at
60; Lutte Test., Tr. at 18-22 (Aug. 15, 2017).
C. Events Following the 2010 Site Visit After the EPA inspectors left the Site, Mr. Walters called Dan Metheny, a professional engineer who worked for Fox
Engineering, which was the firm Foster retained to draw up plans
for construction on the Site. David Walters Test., Tr. at 113-114
(Aug. 15, 2017). Walters advised Metheny that the EPA had been at
the Site and told him that a permit might be needed for the work
that Walters Excavating was conducting on Pad 4. Id.; Metheny
Test., Tr. at 144 (Aug. 18, 2017). That day, Metheny emailed
Foster, informing him of the conversation Walters had with the EPA
and providing him with some information about CWA section 404
permits. U.S. Ex. 157; Foster Test., Tr. 88-89 (Aug. 16, 2017).
Neither plaintiffs nor Metheny contacted the Corps or the EPA to ask whether a permit was required. U.S. Ex. 14 at
AR0000374; U.S. Ex. 15 at AR0000384; U.S. Ex. 17 at AR0000365-66;
Lutte Test., Tr. at 71-72 (Aug. 15, 2017). Foster did not ask
Metheny about his qualifications for determining whether a CWA
section 404 permit was required. Foster Test., Tr. at 89 (Aug.
16, 2017); Metheny Test., Tr. at 167 (Aug. 18, 2017). Foster was
aware that Metheny and Fox Engineering had been involved with the
CWA violations on Pad 1 of the Neal Run Crossing property. Foster
Test., Tr. at 89 (Aug. 16, 2017); Metheny Test., Tr. at 167 (Aug.
18, 2017). Although Metheny had worked with CWA section 404
permits through his work on bridges, he had never performed a
stream and wetland delineation. Metheny Test., Tr. at 167 (Aug.
18, 2017). A few days later, Metheny advised Foster that a
section 404 permit was not needed for the Pad 4 work. Foster
Test., Tr. at 89 (Aug. 15, 2017).
Walters Excavating conducted mechanized land clearing, including using earth moving equipment to clear, fill, and level
portions of Pad 4 and constructed a sediment pond on Pad 4. Jt.
Stip. ¶ 17. Using heavy machinery, Walters Excavating cleared
brush, dug out tree stumps, constructed a sediment pond, and
placed excavated dirt and rocks on Pad 4. Id. at ¶ 18. Prior to
filling Pad 4, Walters observed a stream channel that forked off
to the left and right upgradient. David Walters Test., Tr. at 99-
101; 121.
Walters Excavating continued working in Pad 4 after the EPA’s visit. Each Walters Excavating invoices listed a
description of the work they performed each day. Seth Walters
Test., Tr. at 56-57 (Aug. 18, 2017). During the three days
following the EPA’s Site visit, September 10 through September 12,
2010, Walters Excavating “[c]leared brush and cleaned off for new
haul road leading to outlet 3.” U.S. Ex. 16 at AR0000410. Outlet
3 references the location where the sediment pond is now located
and the haul road would permit access for the machinery to build
the sediment pond and to eventually bring fill down to the Site.
Seth Walters Test., Tr. at 58 (Aug. 18, 2017). The sediment pond
was then constructed. U.S. Ex. 16 at AR0000410; Metheny Test.,
Tr. at 168 (Aug. 18, 2017); David Walters Test., Tr. at 111-112.
Walters Excavating’s work filling the Pad 4 area was completed in
November 2010. U.S. Ex. 16 at AR0000402-408. M&P paid Walters
Excavating $352,053.73 for the work they performed. Id.
After the Site visit, Andreescu confirmed that plaintiffs had not obtained a section 404 permit for the work on
Pad 4. Andreescu Trial Tr. at 86. She then completed an
inspection report and a photograph log from the Site visit. U.S.
Ex. 9; Andreescu Trial Tr. at 68-70, 86. Andreescu reviewed
geographic information system (“GIS”) data for the Site, which
included historic aerial images, topographic contour lines,
digital elevation data, and United States Geological Survey
mapping. Andreescu Trial Tr. at 70-71; U.S. Exs. 5A, 5B. She
also reviewed scientific literature on the ecological importance
of headwater streams to downstream waters. Andreescu Trial Tr. at
82-86; U.S. Exs. 10-12. From this evidence Andreescu concluded
that the stream channel on the Site was a headwater stream that
flowed from Pad 4, through the hayfield and connected to Blackwell
Creek. Id. at 86; U.S. Ex. 9.
In December 2010, the EPA sent CWA section 308 information requests to Foster Farms and Fox Engineering.
Andreescu Trial Tr. at 87; U.S. Exs. 13-14. Fox Engineering,
Foster Farms, and Walters Excavating responded to the information
requests in December 2010. U.S. Ex. 24-26.
In February 2010, Ron Foster hired Jacob White of Randolph Engineering to conduct a wetland and stream delineation
for Pads 4 and 5. Jt. Stip. ¶ 20; U.S. Ex. 20. Randolph
Engineering identified eleven “stream assessment reaches” or
“SARs” on Pads 4 and 5. Jt. Stip. ¶ 22. On Pad 4, Randolph
Engineering delineated SAR 3 (“RR4”), SAR3(a)(1) and (a)(2)
(collectively “RR3”), SAR3(b)(1) and (b)(2) (collectively “RR2”),
and SAR3(c) (“RR1”). [2] Jt. Stip. ¶¶ 23, 24. RR1 and RR4 were
completely filled on the Site and portions of RR2 and RR3 were
filled on the Site. U.S. Ex. 20. Randolph Engineering classified
RR4 as an intermittent stream and RR 1, 2, and 3 as ephemeral
streams. Id. at AR0000475. White has reaffirmed his delineation
of RR1, RR2, RR3, and RR4. White Test., Tr. at 104 (Aug. 18,
2017). Randolph Engineering concluded that all of the stream
assessment reaches were likely jurisdictional under the CWA. U.S.
Ex. 20 at AR0000475-76. At trial, White indicated that his
conclusion about whether the streams were jurisdictional changed
after reading the GAI Report obtained by Foster, which indicated
that there was no hydrological connection across the hayfield.
White Test., Tr. at 101-102. White was not made aware that Dana
Pehrman, an expert engaged by Foster, visited the Site in July,
2015, when water was flowing across the hayfield and into
Blackwell Creek. Id. at 118.
Randolph Engineering submitted a wetland and stream delineation report (“Randolph Report”) dated March 10, 2011 to the
Corps for verification and a jurisdictional determination. Jt.
Stip. ¶ 22; U.S. Ex. 20; Hemann Test., Tr. at 155 (Aug. 15, 2017).
In addition to delineating and identifying the streams on the Pad 4 site (now RR 1, 2, 3 and 4), Mr. White filled out and
included in the Randolph Report forms providing information used
in connection with the Corps of Engineers Functional Calculator
for High Gradient Headwater Streams in Eastern Kentucky and
Western West Virginia HGM Guidebook. These forms provided the
Corps with information regarding certain features of the streams
being assessed that correlate with functions being performed by
those streams. U.S. Ex. 20 at AR0000515-0563; White Test., Tr. at
114:15-115:3, 125:5-12.
Rick Hemann, of the Corps, sent the Randolph Report to Andreescu for the EPA to review in April 2011. Andreescu Trial
Tr. at 99-103; U.S. Ex. 19. Andreescu reviewed the Randolph
Report, which made her aware that plaintiffs had placed a
substantial amount of fill in the Pad 4 streams since her
September 9, 2010 Site visit. Andreescu Trial Tr. at 107-108.
In May 2011, Andreescu and Pam Lazos, counsel for the EPA, visited the Site with Foster. Id. at 110-111. Andreescu
observed that plaintiffs had placed a large quantity of fill on
the Site, and had constructed a sediment pond. Id. at 114-118;
U.S. Ex. 22. Andreescu concluded that the additional filled
streams were jurisdictional based upon her observations during the
two Site visits, review of Geographic Information System (“GIS”)
data, scientific literature, and the Randolph Report. Andrescu
Trial Tr. at 149-50.
Hemann verified the Randolph Report by reviewing aerial photographs, topographic maps, wetland inventory maps, and
by conducting two site visits; and in June 2011, he inspected the
Pad 4 area and in July 2011, he inspected the Pad 5 area. Hemann
Test., Tr. at 157-58; 158-162 (Aug. 15, 2017). Hemann concluded
that the filled streams, RR1, 2, 3, and 4, were jurisdictional
under the CWA. U.S. Ex. 25. Hemann determined that RR4 was an
intermittent-seasonal stream based on the watershed’s 30-acre
size, and the characteristics of RR5 and RR10, which were streams
in Pad 5 that had not been filled. Hemann Test., Tr. 167-68 (Aug.
15, 2017); U.S. Ex. 173 at MPS001242; U.S. Ex. 25. Hemann also
concluded that RR1, 2, 3, and 4 have a significant nexus to
downstream traditional navigable waters. U.S. Ex. 25.
In September 2011, Andreescu and Lutte visited the Neal Run Crossing property with Foster to review the Pad 1 restoration
work and again inspected the Pad 4 area. Andreescu Trial Tr. at
123.
In October 2011, Foster submitted an after-the-fact permit application to the Corps. U.S. Ex. 152; Hemann Test., Tr.
at 171-72 (Aug. 15, 2017). The application stated that 1,970
linear feet of stream had been filled with 100,000 cubic yards of
fill material. Id.
From October 2011 to December 2011, the EPA and the Corps conducted internal discussions to determine which agency
would take the lead in addressing the Site violations. Hemann
Test., Tr. at 173-74. In December 2011, the EPA and the Corps had
a telephone conference and it was decided that EPA would be the
lead agency in addressing the Pad 4 violations. Andreescu Trial
Tr. at 135-36; U.S. Ex. 26.
On January 3, 2012, Lazos emailed Foster and notified him that the EPA had assumed the lead and would be seeking
penalties for the violations. U.S. Ex. 103. On January 24, 2012,
the EPA issued an Administrative Compliance Order (“ACO”) to
Foster Farms for the Pad 4 violations. U.S. Ex. 28.
In February 2012, Foster notified Andureescu by telephone and letter that the ACO should have been issued to M&P
instead of Foster Farms. Andreescu Trial Tr. at 143-45; U.S. Ex.
29. That same month, Foster contacted the Corps and requested
that they complete the verification of the Randolph Report and
provide him with a jurisdictional determination. U.S. Ex. 153.
On February 22, 2012, the Corps sent Foster a letter notifying him
that it had determined that the Pad 4 streams were covered by the
CWA. U.S. Ex. 30.
On March 30, 2012, Foster sent the EPA a letter attaching a proposed mitigation plan for the Site and requesting
information supporting the EPA’s jurisdictional determination.
U.S. Ex. 31. On April 5, 2012, Andreescu responded to Foster’s
letter again stating that the EPA was the lead agency and
summarized the EPA’s previous findings that the filled streams
were jurisdictional. U.S. Ex. 32; Andreescu Trial Tr. 153-157.
In April 2012, Foster attempted to appeal the Corps’ jurisdictional determination. Foster Trial, Tr. at 7-8 (Aug. 18,
2017). However, because the EPA had assumed the lead on the case,
the Corps could not accept an appeal. See 33 C.F.R. § 331.11. At
Foster’s request, the EPA provided additional information about
the basis for the jurisdictional determination in a May 30, 2012
letter. U.S. Ex. 194. Foster thereafter submitted written
information from Randolph Engineering and Fox Engineering to
support his assertion that the streams were not covered by the
CWA. U.S. Ex. 227. Andreescu considered the materials provided
by Foster but determined that they did not alter the conclusion
that the Pad 4 streams were within CWA jurisdiction. Andreescu
Trial Tr. at 157-159, 167-169.
In September 2012, the EPA provided comments on plaintiffs’ proposed mitigation plan and requested a revised plan
based on those comments. Id. at 173-75; U.S. Ex. 35.
D. Streams’ Physical Contributions 1. The Pad 4 Streams
Dane Pehrman, Foster’s expert, identified “a number of different tributaries” existed that flowed into where the sediment
pond now exists prior to its construction. Pehrman, Test. Tr.
157-58 (Aug. 17, 2017). Based upon his review of aerial
photographs, he concluded that RR4 flowed intermittently on the
Site prior to its fill. Id. at 160-61.
Peter Stokely, the EPA’s expert in aerial photographic interpretation, viewed pre-disturbance aerial photographs of the
Pad 4 area and identified RR2 and RR3, which were shown flowing
into RR4 prior to the construction of the sediment pond. Stokely
Test., Tr. at 128-136 (Aug. 16, 2017); see e.g., U.S. Exs. 317-320
(aerial photographs of the Site). Stokely also viewed low-
altitude oblique images from which the stream channels of RR2 and
RR3 were visible and water can be seen flowing from the
undisturbed sections of RR2 and RR3 onto the filled sections of
those same streams. Stokely Test., Tr. at 140-42 (Aug. 16, 2017);
U.S. Exs. 220, 222, 224. From this evidence, Stokely opined that
RR2 and RR3 were tributaries to RR4. Stokely Test., Tr. at 144-45
(Aug. 16, 2017).
During the September 9, 2010 Site visit, EPA inspectors Andreescu and Lutte observed and photographed the partially
disturbed RR4. Andreescu Trial Tr. at 53-54; U.S. Ex. 7 at
USEPA001248-1249; Lutte Test., Tr. at 10-13, 14-24 (Aug. 15,
2017). The undisturbed portion of RR4’s channel was visible on
the Site, identifiable by a lack of vegetation and substrate on
the bottom of the channel, which is “debris, rocks, cobble, stone,
[and] sediment,” and an ordinary high water mark. Lutte Test.,
Tr. at 11-12, 80 (Aug. 15, 2017); U.S. Ex. 7 at USEPA001248.
Upstream of the disturbance, Lutte observed RR4’s channel, an
ordinary high water mark, and also observed water in the channel.
Id. at 15-16, 80; U.S. Ex. 7 at USEPA001252-53.
Stokely visited the Site on May 12, 2015 and was able to observe the unfilled portions of RR2 and RR3. Stokely Test., Tr.
at 138 (Aug. 16, 2017). Although he did not see RR1 when he was
mapping the Pad 4 streams by viewing aerial photography, he
observed RR1 when he visited the Pad 4 area. Id. at 138-39.
The United States’ experts on stream ecology and hydrology, Drs. Arscott and Dow visited the Neal Run Crossing
property on May 12, 2015. They observed and photographed the
portions of RR2 and RR3 that had not been filled on the Site and
observed bed, banks, and water in those streams. Arscott Test.,
Tr. at 196-199 (Aug. 16, 2017); U.S. Exs. 261-263. They also
observed water coming from the fill where RR1 and RR4 were located
on the Site as it flowed into the sediment pond and they took in-
situ water chemistry of the water emerging into the fill. Arscott
Test., Tr. at 209-11; U.S. Exs. 254, 261.
Dr. Dow also used software called “Terrain Analysis Using Digital Elevation Model” (“TauDEM”) to map the Pad 4 streams
prior to his visit to the Site. Dow Test., Tr. at 77-79, 82-83
(Aug. 17, 2017); U.S. Ex. 303C. When he arrived on the Site, the
unburied portions of RR2 and RR3 were located in the places TauDEM
predicted they would be. Dow Test., Tr. at 119-20 (Aug. 17,
2017). TauDEM also mapped RR1 and RR4 as flowing prior to their
fill. Id. at 99-100. Dr. Dow was able to confirm the locations
that TauDEM mapped RR1 and RR4 to flow prior to their fill by
recording and matching the locations where they observed water
emerging from the fill in their May 2015 Site visit. Id.
2. RR4 as it Crosses the Hayfield
a. Stream Characteristics
When RR4 exits the Pad 4 area, it flows through a stream OHWMchannel with a bed, bank and ordinary high water mark into the
neighboring hayfield for approximately 125 feet. Andreescu Trial
Tr. 60; Lutte Test., Tr. at 18-19 (Aug. 15, 2017); Pehramn Test.,
Tr. at 208, 210; Fuller Dep. Tr. at 88, 89-90; Pehrman Test., Tr.
at 218-19 (Aug. 17, 2017). The stream channel, as it enters the
hayfield from Pad 4, is visible in multiple photographs. U.S.
Exs. 165 at MPS001105, 221, 223, 276, 281-82.
Then, for approximately 120 feet near the center of the hayfield, there is a loss of ordinary high water mark, bed, and
bank, but a confined concave pathway is visible in person and in
viewing the landscape in low-aerial oblique and aerial
photographs. Stokely Test., Tr. at 145-46 (Aug. 16, 2017);
Pehrman Test., Tr. at 217-18, 221 (Aug. 17, 2017); U.S. Exs. 116
at AR0001043, 221, 223, 276, 281, 282, 316, 320, 322. Lutte
additionally observed “[d]arker vegetation, more robust vegetation
due to the influence of the water increased to the roots” and that
he could see “the path that the stream was taking to get to the
end of the hayfield.” Lutte Test., Tr. at 19-20 (Aug. 15, 2017).
Beyond the center 120 feet of the hayfield, a more defined channel with bed and bank and ordinary high water mark
reappears for approximately 100 feet before it flows into
Blackwell Creek. Andreescu Trial Tr. at 60; Lutte Test. Tri. at
20-22, 36-37 (Aug. 15, 2017); Lutte Test. Tr. at 42-43 (Aug. 16,
2017); Pehrman Test., Tr. at 219-220 (Aug. 17, 2017); Fuller Dep.
Tr. at 96-97, 106; Stokely Test., Tr. at 146-47 (Aug. 15, 2017);
U.S. Ex. 116 at AR0001045-46. As noted by Dr. Dow, streams are
“dynamic” and “change all along a stream network for any number of
reasons.” Dow Test., Tr. at 112 (Aug. 17, 2017).
The hayfield is used to grow and harvest hay, and has been used for that purpose for decades. Carr Test., Tr. at 128-29
(Aug. 15, 2017). The hayfield is cut once or twice a year. Id.
at 129-30. A tractor is used to cut, rake, and bale the hay. Id.
at 130. The mowing and raking of the hayfield over time can
flatten the stream bed and obscure certain features. Fuller Dep.
Tr. at 113.
In montane regions, headwater streams frequently flow sub-surface near their confluence with a larger stream. Arscott
Test., Tr. at 13-15 (Aug. 17, 2017); U.S. Ex. 38. The Corps’
guidance for West Virginia and surrounding regions states:
For many headwater streams, during low flow seasons, the flow will go subsurface near the confluence of larger streams due to the aggradation of the bed from alluvial deposits. We recommend walking upstream for several meters until you are out of the aggraded zone before establishing the reach. If the reach is established directly upstream of a confluence, the reach might not be representative of the stream channel and might falsely identify it as a [non-relatively-permanent water].
U.S. Ex. 38. The subsurface flow is caused by the transition of
land from a higher gradient to a lower gradient, which results in
sediment being deposited in shallow areas. Id. at 14-15. This
causes some surface flow to percolate into the sediment through
shallow subsurface paths before reemerging downslope at the
surface. Id. at 16-17.
The loss of defined channel in the center of the hayfield is also caused by the change in speed and force of the
flow as it comes from the sloped Pad 4 area into the flattened
hayfield. Arscott Test., Tr. at 13-16, 50 (Aug. 17, 2017); Dow
Test., Tr. at 110-111 (Aug. 17, 2017). Because of the reduction
in energy as the water travels off the sloped Pad 4 area into the
hayfield, it is less able to carve a channel into the center of
the hayfield. Arscott Test., Tr. at 50 (Aug. 17, 2017); Dow
Test., Tr. at 110-11 (Aug. 17, 2017).
The Corps’ instructions for identifying jurisdictional waters state that “a natural or manmade discontinuity in the OHWM
does not necessarily sever jurisdiction (e.g., where the stream
temporarily flows underground, or where the OHWM has been removed
by development or agricultural practices)” and advises inspectors
to “look for indicators of flow above and below the break.” U.S.
Ex. 175 at MPS001240 n. 6; Lutte Test., Tr. at 69 (Aug. 15, 2017).
The reconstitution of RR4’s channel at the downgradient end of the hayfield is caused by the rechannelization of water as
it comes across the hayfield. Arscott Test., Tr. at 16-17 (Aug.
17, 2017); Dow Test., Tr. at 111 (Aug. 17, 2017); Pehrman Test.,
Tr. at 211 (Aug. 17, 2017).
The hayfield is not a nonjurisdictional swale. The definition of a swale from the Corps’ manual does not include
features that have a bed, banks, and ordinary high water marks
upstream and downstream. Lutte Test., Tr. at 71 (Aug. 15, 2017).
Because the stream, as it travels through the hayfield, has a
confined flow path with bed, banks, and ordinary high water marks
both upstream and downstream of the center of the hayfield, it
more closely fits in the definition of a “natural or manmade
discontinuity in the OHWM” within a jurisdictional stream than
that of a swale. U.S. Ex. 175 at MPS001240 n. 6.
b. Water Flow Across the Hayfield West Virginia’s Statewide Addressing and Mapping Board (“SAMB”) mapped RR4 as it flows from the Site across the hayfield
to the Blackwell Tributary. U.S. Ex. 34; Dow. Test., Tr. at 87-
88.
In response to the EPA’s information request, Foster described RR4’s flow path from the Site, stating “[d]rainage was
flowing across an open field into the main stream. . . .” U.S.
Ex. 15 at AR0000385. RR4’s flow path across the hayfield is
visible in many aerial photographs taken before and after
plaintiffs’ filling activities. Stokely Test., Tr. at 128-138,
145-49 (Aug. 17, 2017); Dow Test., Tr. at 102-104; U.S. Exs. 221,
223, 276, 281-282.
In July 2015, Pehrman observed and photographed water flowing from the Site and across the hayfield into Blackwell
Creek. Pehrman Test., Tr. at 207. When Pehrman visited the
hayfield, he could see the water flowing from the Site toward
Blackwell Creek when he pulled apart the tall hay in the center of
the hayfield. Id. at 183-84; U.S. Ex. 265. Water was flowing
fifteen feet wide across the center of the hayfield. Id. Beyond
the center 120 feet, the broad flow of water, as found by Pehrman,
“began to concentrate, eventually forming a defined channel with
bed and banks. From this point, flow continued through the
channel for approximately 100 feet where it flowed into [Blackwell
Creek].” Id. at 219-220.
Using the metadata produced with the photographs taken by Pehrman, Dr. Dow was able to map the points at which Pehrman
took pictures in the hayfield. U.S. Exs. 265, 315; Dow Test., Tr.
at 105-107. The locations where Pehrman took photos in the center
of the hayfield showed water flowing where the TauDEM model
predicted RR4 would cross the hayfield on the way to Blackwell
Creek. Dow Test., Tr. at 107-114.
Larry Carr, who owned the hayfield, testified that he observed water flow across the hayfield when it rains. Carr
Test., Tr. at 132-34 (Aug. 15, 2017). Using arrows, Carr
illustrated the flow path of RR4 on an aerial photograph showing
the flow from the Site and across the hayfield to Blackwell Creek.
U.S. Ex. 169. Carr also testified that the hayfield would be dry
when he cut hay, which would occur in late May or early June and
the end of August or late September. Carr Test., Tr. at 129, 134
(Aug. 15, 2017).
Fuller’s determination that there is no subsurface flow of water in the hayfield is insufficient to rebut the evidence
that water flows across the hayfield into Blackwell Creek. Fuller
observed the stream channel on either side of the hayfield.
Fuller Dep. Tr. at 88-90, 96-97, 106. Fuller only took two
samples in the center of the hayfield. Id. at 134, 138. Most
significantly, Fuller testified that her analysis would have been
different if she had been made aware that flow had been observed
across the hayfield. Id. at 142-43.
E. Stream Characteristics 1. General Characteristics of Headwater Streams The channels of a river system start out small, as 1st- order streams, and quickly grow in an almost exponential fashion
as small and intermediate (2nd to 5th order) sized channels
connect with one another to form large rivers (usually 6th-order
or greater). Arscott Test., Tr. at 171-172 (Aug. 16, 2017).
Stream orders increase when two lower-order streams merge. Id.
First, second, and third order streams are collectively described
as headwater streams. Id.
The water in headwater streams is the medium in which materials and organisms are transported down the stream network.
The water contains mineral particles and organic debris like
leaves, sticks, twigs, fish and insects, and also dissolved
substances. Id. at 182. The dissolved substances include natural
substances (usually organic molecules which are collectively known
as dissolved organic carbon or “DOC”) and, in human dominated
landscapes, there are also anthropogenic substances that are
carried by the waterways. Id.
Headwater streams are also bioreactors. They are host to aquatic life, bacteria, fungi, algae, aquatic plants, insects,
and sometimes other vertebrates. Id. at 182-83. There are
biogeochemical processes by which the organisms, such as plants
and bacteria, intake nutrients and transform materials to be used
by downstream organisms. Id. For example, nitrogen can be
transformed from one form to another and retained in the headwater
streams to grow biological life or processed back up to the
atmosphere or transmitted downstream or into subterranean
compartments. Id.
For a river system flowing through the Western Allegheny Plateau, wherein the Neal Run Crossing property is located, forest
is the predominant natural land cover. Id. at 230-31; U.S. Ex. 10
at AR0000004-0005. Small streams are not very wide and trees
growing on the banks form a complete canopy over the channel.
Shading by trees limits the light available for photoautotrophs
like algae, but trees also provide large amounts of particulate
(non-dissolved) food for decomposers (also known as biofilms,
which include bacteria, fungi and algae) such as leaves, fruits,
seeds, and twigs/trunks, as well as dissolved food which can be
used by micro-organisms. Id. The dissolved food is produced by
the leaching of organic molecules from leaves and other parts of
trees or soil organic matter both in the stream and on the forest
floor. Id.
Small headwater streams, like those at issue in this litigation, accumulate leaf litter supplied directly during leaf
fall and subsequently as fallen leaves are blown by wind or
carried by storm-derived precipitation runoff moving across the
forest floor. Id. at 230-31; U.S. Ex. 10 at AR0000005-0006.
Ground and rain water, typically low in DOC, may pass through or
over the organic-rich sediments and leaf litter in fringing
riparian zones and wetlands and pick up higher concentrations of
DOC that is then transported downstream where it may supplement
the energy for instream biotic communities. Id. AR0000005-0006
As the river system increases in size downstream, the banks get farther apart and openings in the tree canopy allow more
sunlight to support in-situ production of food like algae and
plants. U.S. Ex. 283. Although 1st-order streams are small,
their influence is demonstrated by the fact that they contribute
about 65% of the nitrogen flux to second order streams and about
40% to 4th-and higher order rivers. Id.
Downstream aquatic life is linked to upstream aquatic life and the linkage promotes habitat diversity and biodiversity,
which is a measure of the variety of different lifeforms living
within an ecosystem or habitat. Arscott Test., Tr. at 230:15-
231:7 (Aug. 16, 2017); U.S. Ex. 10 at AR0000004-0006; U.S. Ex. 11
at AR0000029-0031. For example, macroinvertebrates eating leaves
in headwater streams transform the leaves from large particles to
small particles, which can then be fed upon by downstream
macroinvertebrate communities whose species have specialized mouth
parts and other structures or techniques enabling them to filter
out the small organic particles being transported in the water
column. Id. When headwater streams are impaired, the food web is
altered, which impacts the viability of downstream feeding
species. Arscott Test., Tr. at 22-23 (Aug. 17, 2017).
2. Physical Characteristics of the Filled Streams Dr. Dow used TauDEM to calculate the watershed size and record the boundaries of RR4 in Pad 4, and RR5 and RR10 in Pad 5.
Dow Test., Tr. at 80-81 (Aug. 17, 2017). Dr. Arscott determined
that the watershed area for RR4 is approximately five percent of
Blackwell Creek. Id. at 91-92. From that Dr. Dow inferred that
approximately five percent of Blackwell Creek’s flow comes from
RR4. Id.
Because Drs. Arscott and Dow were unable to quantify the flow and sediment that RR1 contributed downstream prior to the
fill, they analyzed a three-year hydrological study by the United
States Geological Survey of Robinson Run and North Bend Run, two
streams less than 50 miles from the Site. Id. at 115-17. Like
the Pad 4 streams, these streams did not flow year around, were of
similar size, and had similar characteristics. Id. One of the
comparable streams had water in it 90 percent of the time, while
the other had water flowing in it 65 percent of the time. Id.
Based on this information, Drs. Arscott and Dow concluded that RR4
likely had comparable hydrological patterns to North Bend Run and
Robinson Run. Id.
3. Chemical Contributions of the Filled Streams Drs. Arscott and Dow also measured the chemical properties, which included the specific conductivity, temperature,
pH, and dissolved oxygen, at the unfilled reaches of RR2 and RR3,
and the water emerging from the fill that buried RR1 and RR4 as it
flowed into the sediment pond. Id. at 187-88; U.S. Ex. 285,
Figure 3; U.S. Ex. 295, Table 5. They also measured the chemical
properties from RR5 and RR10, two undisturbed streams on Pad 5, as
well as the Blackwell Tributary, the Second Unnamed Tributary to
Neal Run, Neal Run, and eight similar headwater streams near the
Neal Run Crossing property. U.S. Ex. 295, Table 5.
The ranges of specific conductivity (a measure of salinity), temperature, pH, and dissolved oxygen observed in RR2,
RR3, RR5, and RR10 are within the range that support the aquatic
biota typically found in headwater streams. Arscott Test., Tr. at
225-226 (Aug. 16, 2017). The specific conductivities of RR2, RR3,
RR5 and RR10 are consistent with the other nearby headwater
streams. Id. at 226-228; U.S. Ex. 290 (Figure 13). Downstream
waters had a broader specific conductivity range than those on the
Neal Run Crossing property, and the specific conductivity
generally increased downstream. Arscott Test., Tr. at 225-226
(Aug. 16, 2017); U.S. Ex. 295, Table 5 & U.S. Ex. 296.
Based on the level of specific conductivity of the water in RR2 and RR3 (and the aquatic life identified therein, discussed
below) Drs. Arscott and Dow determined that the water in those
channels was not only from a rain event that occurred the previous
day. Arscott Test., Tr. 204-205 (Aug. 16, 2017). “[S]pecific
conductivity is a measure of water’s ability to conduct
electricity . . . [which] is directly related to how much is
dissolved in the water.” Id. The specific conductivity of the
water found in RR2 and RR3 demonstrated that it had significant
contact time with rocks, minerals and soils, contrasted with rain
water, which has a very low specific conductance. Id. at 205,
208-209.
The water emerging from the fill where RR4 was buried had an elevated specific conductivity compared to other streams
with a similar amount of forest cover that was sampled by Drs.
Arscott and Dow. Id. at 227-228 (Aug. 16, 2017); U.S. Ex. 295.
The increased specific conductivity “indicates this water is
percolating through the pad, interacting with recently crushed up
and deposited material, dissolving some of the salts in that
material,” which causes the specific conductivity to increase.
Id.
The specific conductivity of streams generally increases due to salt, chloride, sodium chloride, and calcium chloride salts
as the landscape changes from forests and becomes “dominated by
other land uses.” Arscott Trial, Test. (Aug. 16, 2017) at 226.
Headwater streams help dilute downstream connections where there
are greater inputs in waterways. Id. at 23-24 (Aug. 17, 2017).
When headwater streams are altered or destroyed, there is less
dilution for downstream waters, which increases inputs such as
sodium-chloride in downstream waters. Id. As more headwater
streams are destroyed, the recreational and quality of downstream
waters is impaired. Id.
Drs. Arscott and Dow also collected water samples at eight sites for the analysis of nutrients and ions, including from
RR2, the sediment pond, Blackwell Creek, The Second Unnamed
Tributary to Neal Run, and Neal Run. Id. at 190 (Aug. 16, 2017);
U.S. Ex. 296. Of the seven ions sampled, aluminum (Al 3+ ), calcium
(Ca2 + ), sodium (Na + ), chloride (Cl - ), and sulfate (SO [4] 2- ), had an
increased concentration downstream. U.S. Ex. 291. Total nitrogen
also increased as the water flowed downstream. Id.; Arscott
Test., Tr. at 228-29 (Aug. 16, 2017). The biota that live in
freshwater systems are typically sensitive to higher salt
concentrations, and some species are more sensitive to salt than
others. Id. at 23 (Aug. 17, 2017). Species sensitive to salt
include some mayflies, stoneflies, caddisflies, and other aquatic
invertebrates and fish; “the salt can impair their reproductive
potential and cause population decline.” Id.
The concentration of sodium and chloride found by Drs.
Arscott and Dow increased as the percent of the watershed
classified as “barren/developed” increased in the sites sampled by
them. U.S. Ex. 292. As headwater streams are altered or
destroyed, downstream navigable waters are less able to dilute
inputs from the water, which eventually impairs the navigable
water. Arscott Test., Tr. at 23-24 (Aug. 17, 2017).
4. Biological Contributions of the Filled Streams Drs. Arscott and Dow analyzed the aquatic invertebrates located in the Pad 4 area and other nearby sites to determine how
long the streams contain water as well as the types of life that
live in the streams. Id. at 199-201 (Aug. 16, 2017). “Aquatic
insect life history moves from an egg to a larvae, [and] sometimes
to a pupae depending on the species of aquatic insect. But some
species skip the pupal stage and emerge as an adult.” Id. at 199-
200. The “larvae of aquatic insets are obligate aquatic
organisms” which means they “require to be in water to develop to
the point in which they would metamorphose to become an adult.”
Id.
Drs. Arscott and Dow collected a number of different aquatic lifeforms living in the unburied reaches of RR2 and RR3,
and in RR5, RR10, Blackwell Tributary, the Second Unnamed
Tributary to Neal Run, and Neal Run. U.S. Exs. 297, 314.
Six taxa were collected from the RR2, including two mayfly species, crayfish, and aquatic worms. Id. Both of the
mayfly species have univoltine (1-year life) cycles with adults
laying eggs in May, June, and/or July when they have typically
emerge as adults. Arscott Test., Tr. at 201-203 (Aug. 16, 2017).
Adult females of these species could have dispersed to this site
in May-July 2014 and laid eggs in this stream channel. Id. Once
mayflies hatch from the egg stage to the larvae stage, they must
be submerged in water (inundated) or they die. Id. These species
of mayfly larvae found in the unburied reach of RR2 typically
hatch from eggs in August-October. Id. The mayfly larvae could
not have flown or crawled upstream to the sampling point in RR2
from downstream habitat. Id. at 203. Mayfly larvae require being
inundated to develop through the winter and emerge in spring. Id.
at 201-203. Thus, the presence of the mayfly larvae suggests that
RR2 had been flowing or was wet with sufficient aquatic areas to
support these species. Id.
The presence of crayfish in the unburied portion of RR2 also evidences that water exists there for longer periods of
time. Id. at 206. The presence of crayfish in this habitat in
the juvenile stage suggest that sexually mature individuals
reproduced in the vicinity of where the experts sampled. Id.
Their presence at this site is evidence of flow for a longer
period of time, to support the crayfish. Id.
Drs. Arscott and Dow identified eight taxa from the 23 lifeforms collected at the sampling point in RR5. U.S. Exs. 297,
314. Dr. Arscott identified an additional species of mayfly, as
well as species of the following aquatic macroinvertebrates:
stonefly, dobsonfly/fishfly, caddisfly, isopod, and flatworms.
U.S. Ex. 297. All of the mayfly taxa are reported to be
univoltine and none exhibits tolerance to desiccation. Id. In
addition, the stonefly and caddisfly are univoltine; however, the
stonefly has been observed to exhibit some tolerance to drought.
Id. The presence of these taxa provide evidence that RR5 flowed
for “a substantial period of time” prior to their visit. Arscott
Test., Tr. at 221 (Aug. 16, 2017); U.S. Ex. 297.
Seven taxa were identified from the 11 individual lifeforms collected in the RR10 sampling point. U.S. Ex. 297;
U.S. Ex. 314. The two mayfly species identified are univoltine
and have demonstrated no tolerance to drought. U.S. Ex. 297. The
non-biting midge is likely to be a multi-volitine species
(multiple generations per year). Id. The three crustaceans
collected included juvenile crayfish. Id. Their presence
indicates that there is a longer duration of flow in RR10.
Arscott Test., Tr. at 221-222 (Aug. 16, 2017).
Two taxa were identified from seven individual lifeforms collected from the unburied portion of RR3, an isopod (an order of
crustaceans) and a flatworm. U.S. Ex. 314. The low abundance and
life histories of these organisms suggests “that stream channel
[RR3] experiences a greater degree of drying.” Arscott Test., Tr.
at 207-208 (Aug. 16, 2017).
Based on their observations of the unfilled reaches of RR2 and RR3, and the similar undisturbed streams on and near Pad 5
(RR5 and RR10), Drs. Arscott and Dow concluded that, prior to
filling, RR4 was an intermittent stream with flow for 4-8 months
of the year. Arscott Test., Tr. at 220 (Aug. 16, 2017); Tr. at
10-11 (Aug. 17, 2017). Dr. Arscott also concluded that RR2 had
intermittent flow and that RR5 and RR10 had nearly perennial flow.
Arscott Test., Tr. 220; 221-22 (Aug. 16, 2017).
5. Connection of Filled Streams
Dr. Arscott opined that prior to being filled, RR4 flowed from the Site, across the hayfield and into Blackwell
Creek. Id. at 219 (Aug. 16, 2017). He based this opinion on
aerial photographs, photographic evidence, field visits and TauDEM
modeling. Id. at 220; 231-232. Dr. Arscott also concluded that
there is not only a hydrologic connection across the hayfield, but
that a chemical and biological connection is maintained as well.
Id. at 232-33.
F. Accountability of the Foster Group When Foster learned in early September 2010 that EPA inspectors, Andreescu and Lutte, had informed his excavator, who
had just started on the job on Pad 4, that a § 404 permit was
likely needed for the streams about to be filled, he engaged Fox
Engineering Company, who had designed his proposed project, to
advise whether a § 404 permit was required. Dan Metheny, an
engineer with Fox, told him it was not.
There is no indication that Foster was aware that Mr.
Metheny was not qualified to make that determination. As a
consequence, the excavating and fill work continued for some two
months or more in 2010, for which Walters Excavating was paid
$352,000. No further such work has since been done.
Once question was raised by EPA representatives directly with Foster in early 2011, he engaged Randolph Engineering to make
a jurisdictional determination of whether the streams that had
been filled fell within the jurisdiction of the Corps and EPA as
“waters of the United States.” The Randolph report, done by Jacob
White, found that those streams were properly considered as within
the jurisdictional determination by the Corps that they were
waters of the United States. Once the EPA issued the
Administrative Compliance Order in January 2012 finding that the
four streams were waters of the United States, Foster undertook to
find why that decision was made. In early 2013, Foster engaged
GAI to study the issue. As has been noted, again in July 2015
Foster engaged Dane Pehrman to make the study that he reported,
which proved to be favorable to the EPA’s view.
Throughout the period from November 2010 to date, the Neal Run Crossing property has remained fallow by virtue of the
pending dispute between the Foster group and EPA. In effect,
Foster has been precluded from developing the property, as a
result of which he has sustained a considerable financial setback
through an inability to obtain any yield on his investment.
The Neal Run Crossing property itself does not appear to have gained in value except for that apparently attributable to
the $352,000 worth of work done by Walters Excavating. The United
States points to the assessed value of a substantial portion of
the property that cost $925,000 when purchased from Endurance.
The portion of the property, according to the United States, on
which the majority of the filled-in streams are located is
assessed for the year 2017 in the amount of $475,000, being in
West Virginia 60% of the market value. That in turn would
indicate the market value to be $791,667. That indicates a
difference of $316,667, which is less than the $352,000 in value
added through excavation work.
The court concludes that by any measure, the Foster group has sustained a substantial loss by virtue of the dispute
with EPA, quite apart from the civil penalty which may be imposed
and the mitigation which may be required of Foster as a result of
his failure to obtain a § 404 permit to fill the streams at issue.
II. FINDINGS CONCERNING WITNESS CREDIBILITY A. Stephanie Andreescu and Todd Lutte
The court credits the testimony of Andreescu and Lutte.
The demeanor of each of these witnesses (Andreescu by video
deposition and Lutte in person) was forthright and appeared
concerned with truthfully recounting the events of this case.
That Lutte and Andreescu viewed water on the September 2010 Site
visit is consistent with the findings of others, particularly Drs.
Dow and Arscott’s finding water in the upper reaches of RR2 and
RR3 after the streams were filled, and testimony that water
travels through the hayfield into Blackwell Creek. Their
testimony, except where otherwise indicated, has been fully
credited.
B. David Walters and Seth Walters
The court finds David and Seth Walters to be credible except in one respect where they were mistaken. David and Seth
Walters testified that once the EPA inspectors left the Site on
September 9, 2010, they finished installing the silt fence and
then halted operations for several days while Metheny could
research whether a CWA section 404 permit was needed for their
work. David Walters Test., Tr. at 106 (Aug. 15, 2017); Seth
Walters Test., Tr. at 54 (Aug. 18, 2017). David and Seth Walters
also testified that the invoices prepared by Seth Walters were
accurately prepared. David Walters Test., Tr. at 112 (Aug. 15,
2017); Seth Walters Test., Tr. at 56-58 (Aug. 18, 2017). Those
invoices specify that for the three days after the EPA inspectors
left, Walters Excavating cleared brush for a new haul road so that
the place where the sediment pond was to be built could be located
and so that fill could be brought to the Site. Seth Walters
Test., Tr. at 58.
C. Larry Carr
The court finds the testimony of Larry Carr to be credible except to the extent it is internally inconsistent.
While Carr generally appeared to be truthful, his testimony
included contradictory statements regarding how often and in what
circumstances he witnessed water flowing across the hayfield. For
example, Carr stated “when we had hard rains or any kinds of
rains, you know, that it migrates to this area [indicating the
center line of the hayfield] going down to the bottom of the
picture into . . . [Blackwell Creek].” Carr Test., Tr. at 133;
See also id. at 134 (making a similar statement). Carr later
stated in his testimony, “[T]he only time we get any moisture is
after a pretty heavy rain.” Id. at 136. Carr also described
watching rain events there with his family: “I know from memory
when the kids were smaller . . . we’d have one of those storms.
And it happened so seldom that it was an event the whole family
would go out and look over and see it come gushing.” Id. at 145
Despite his testimony that rain water travels across the hayfield and into Blackwell Creek and that when his children were
younger they watched the “gushing” water events together, he later
stated “I’ve never seen [the water] come clear across the
[hayfield].” Id. at 144, 149. After describing how water flows
across the hayfield Carr testified, “[y]ou never physically see
water. You just know by the slope of the land . . . that it . . .
slopes towards [Blackwell Creek].” Id. at 143.
The court also finds that Carr’s testimony relating to his experiences in the hayfield typically referred to the times
when he was cutting hay or performing other operations that
occurred during the summer and required dry conditions. Id. at
129, 134-35, 147. When Carr was asked, “Would you get moisture
through that center area of the hayfield in the late winter and
early spring?”, he responded, “Yes, we do. Yes, we do. That is
the area that any moisture, rain or heavy rains, that’s the only
exit for all that acreage to get to Neal Run through this
hayfield, okay.” Id. At 134.
The evidence also demonstrates that even when one is in the hayfield, it is difficult to see water flowing through it
unless the grass is parted. Pehrman Test., Tr. at 183-84 (Aug.
17, 2017). Finally, Carr’s contradictory testimony of not seeing
water come across the hayfield, does not account for that factor
nor does it account for the visible feature through the hayfield that is observed from numerous aerial photographs taken before and
after the Site disturbance and from the visible bed, bank, and
ordinary high water mark on both ends of the hayfield. U.S. Exs.
220, 224, 224, 317-320.
D. Rick Hemann and Jeffrey Lapp
The court credits the testimony of Rick Hemann and Jeffrey Lapp. The demeanor of each of these witnesses was
forthright and appeared concerned with truthfully recounting the
events of this case. Their testimony, except where otherwise
specifically indicated, has been fully credited.
E. Ronald Foster
The court finds the credibility of Ronald Foster to be in limited respects noted below as somewhat diminished. The court
finds Foster’s testimony regarding the Pad 4 area and the hayfield
during his visits after the installation of the sediment pond
credible to the extent that his testimony is confirmed in the
videos he took on September 4 and 11, 2015. Foster Test., Tr. at
25; Pls.’ Exs. 162-164, 167-73, 176, 182, 185, 194, 198, 205.
Foster’s testimony regarding his efforts to work with the EPA and
the Corps to remedy the alleged CWA violations after the Pad 4
work is also credible.
The court finds that Foster’s testimony is less than credible regarding the formalities of M&P and Foster Farms and his
role in each organization. Only Foster’s telephone number
appeared on the billboard advertising development opportunities at
Neal Run, even though Foster claims to have no managerial role in
Foster Farms and there is no indication from the billboard that
the parcel is owned by two separate entities. Foster Test. Tr. at
72-73, 110-112 (Aug. 16, 2017).
F. Larry George
The court finds the credibility of Larry George to be somewhat diminished. George appeared to have an unfavorable view
of the EPA for the Pad 1 CWA violations that occurred after he
formed Endurance. George Test., Tr. at 65-66 (The EPA “had issues
with me.”) (Aug. 18, 2017).
George’s testimony also is inconsistent with other evidence in the record. Although witnesses for both defendants
and plaintiffs testified that RR4 flowed seasonally on the Site,
George testified that he never saw a flowing creek in the Pad 4
area. George Test., Tr. at 68-69. The evidence also demonstrates
that even when one is in the hayfield, it is difficult to see
water flowing through it unless the grass is parted. Pehrman
Test., Tr. at 183-84 (Aug. 17, 2017). George did not own the
hayfield and generally crossed it when he was younger to hunt and
in recent years, to ride ATVs with his wife. George Test., Tr. at
64, 74. Finally, George’s testimony relating to flow across the
hayfield, does not account for the visible feature through the
hayfield that is observed from numerous aerial photographs taken
before and after the Site disturbance and the bed, banks, and
ordinary high water mark that are visible on both ends of the
hayfield. U.S. Exs. 220, 224, 224, 317-320.
G. Douglas Hatfield
The court finds the credibility of Hatfield to be somewhat diminished. Hatfield testified that most of his
observations of the hayfield occurred from Carr’s driveway or the
road, which are located on the far side of Blackwell Creek.
Hatfield Tsst., Tr. at 94. When Hatfield does take his tractor to
the hayfield, it is in July through October, not when RR4 is
alleged to seasonally flow. Id. at 95. The evidence also
demonstrates that even when one is in the hayfield, it is
difficult to see water flowing through it unless the grass is
parted. Pehrman Test., Tr. at 183-84 (Aug. 17, 2017). When the
hayfield is growing, Hatfield testified that the grass can be too
tall to see coyotes in the hayfield. Hatfield Test., Tr. at 94-
95. Finally, Hatfield’s testimony relating to flow across the
hayfield, does not account for the visible feature through the
hayfield that is observed from numerous aerial photographs taken
before and after the Site disturbance. U.S. Exs. 220, 224, 224,
317-320.
H. Jacob White
The court finds that the credibility of Jacob White is somewhat diminished. White’s testimony appeared to be influenced
by Foster, as demonstrated through the revisions Foster suggested
be made to the letters written by White that were sent to the EPA
and the Corps. White Test., Tr. at 108-09, 115 (Aug. 18, 2017).
White testified that he sent the draft letters to Foster, and the
two discussed revisions to the letters. Id. at 109. The letters,
as revised by Foster, contained statements that were not true,
including that the streams were classified as non-relatively
permanent waters, when RR4 was classified as a relatively
permanent water in the Corp Jurisdictional Determination (“JD”)
report. Id. One of the letters also states that the Corps’ JD
determination only discussed the Pad 4 streams’ proximity to a
traditional navigable water, when White provided in the Randolph
Report, hydrogemorphic functions, which look at the functionality
of landscape features. Id. at 114-115. White also testified that
he did not consider the hayfield in the Randolph Report’s
determination that the Pad 4 streams were jurisdictional. Id. at
110. However, on February 18, 2011, White took a photo of the
hayfield from the edge of Pad 4, which depicts prominent bed,
bank, and ordinary high water marks extending into the hayfield.
Id.; U.S. Ex. 165 at MPS001105.
To the extent that White testified that his opinion about whether the Pad 4 streams were jurisdictional changed after
reading the GAI Report, the court does not find this testimony
persuasive. In making this statement, White incorrectly assumed
that the GAI Report was the only report that provided information
regarding flow across the hayfield. White Test., Tr. at 104, 118
(Aug. 18, 2017). However, White was not aware that Pehrman
composed a report in which he witnessed water flowing across the
hayfield when he visited the Site in July 2015. Id.
I. David Arscott, Charles Dow, Peter Stokely, and Dane Pehrman
The court credits the testimony of David Arscott, Charles Dow, Peter Stokely, and Dane Pehrman regarding their
visits to the Site and surrounding areas. The demeanor of each of
these witnesses was forthright and appeared concerned with
truthfully recounting the events of this case. Their statements
were consistent with the record evidence, including photographs
taken from their visits. Although the court does not credit all
of their expert opinions, the court finds their testimony
regarding their findings at the Neal Run Crossing property and
surrounding areas to be credible.
J. Daniel Metheny
The court does not find the testimony of Dan Metheny credible. Though he had no experience in stream delineation or
wetlands delineation, he nevertheless advised Foster that a § 404
permit was unnecessary despite being informed that EPA inspectors
had just been on the scene and had indicated to Foster’s
excavating crew that such a permit was needed. The testimony of
Metheny at trial that there were no indications of permanent water
and that his original assessment was correct was simply an effort
by him to bolster his initial erroneous assessment and was made
without taking into account the considerable evidence otherwise
from Foster’s own experts as embodied in the Randolph Report and
the findings of Dana Pehrman, as well as the evidence presented by
the EPA.
K. Jayme Fuller
The court finds credible the testimony of Jayme Fuller, an assistant project manager of GAI, a consulting expert engaged
by Foster who was acting for M&P, though her testimony and the GAI
report are of little significance. Foster engaged GAI to conduct
a stream delineation analysis on the hayfield.
Ms. Fuller did so by digging soil test pits to determine groundwater flow. The work was done in May 2013. The results
were that groundwater was found alongside the stream channel on
the upper end of the hayfield. No soil test pit was dug on the
stream channel at the lower end of the hayfield. With respect to
the 121-foot center of the hayfield between those two channels,
Ms. Fuller dug two soil test pits to determine groundwater flow
and found none. In turn, GAI has reported that there was no
stream channel for the 121-foot center of the hayfield. The court
does not find the GAI analysis persuasive inasmuch as it simply
reports the results found on a relatively late spring day when the
soil would normally have been firm enough to permit the cutting of
hay.
III. CONCLUSIONS OF LAW A. Governing Law
In 1972, Congress passed the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of
the Nation’s waters.” 33 U.S.C. § 1251. The CWA prohibits the
discharge of pollutants into navigable waters, which are defined
as “the waters of the United States, including the territorial
seas.” 33 U.S.C. § 1362(7).
In order to prevail under the CWA, defendants must establish that plaintiffs are: (1) persons that (2) discharged a
pollutant (3) from a point source (4) to a water of the United
States (5) without a CWA Section 404 permit. 33 U.S.C. §§
1311(a), 1344(a).
Under the CWA, “person” means “an individual, corporation, partnership, association, State, municipality,
commission, or political subdivision of a State, or any interstate
body.” 33 U.S.C. § 1362(5). A person is liable for CWA
violations if he has: (1) performed the work; or (2) exercised
responsibility for or control over performance of the work. U.S.
v. Lambert, 915 F. Supp. 797, 802 (S.D. W.Va. 1996).
The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point
source. . . .” 33 U.S.C. § 1362(12). Pollutant means “dredged
spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water.” 33 U.S.C. § 1362(6). Courts have
concluded that fill material is a pollutant under the CWA and
plaintiffs do not contest this assertion. See, e.g., United
States v. Pozsgai, 999 F.2d 719, 724 (3d. Cir. 1993).
A point source is defined in the CWA as “any discernible, confined and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft, from which
pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
Under the CWA, “[t]he concept of a point source embraces the
broadest possible definition of any identifiable conveyance from
which pollutants might enter waters of the United States. As
such, bulldozers, backhoes, draglines, and other earthmoving
equipment are all point sources under the CWA.” Lambert, 915 F.
Supp. at 802 (internal citations and quotations omitted).
Under the CWA, “navigable waters” are defined as “waters of the United States.” 33 U.S.C. § 1362(7). Waters of the United
States, as most recently defined by the plurality opinion by four
justices in Rapanos v. United States, 547 U.S. 715 (2006),
include: (1) traditional navigable waters; (2) waters connected to
a traditional navigable water that have a “relatively permanent
flow”; and (3) wetlands that have a “continuous surface
connection” to relatively permanent waters. In Justice Kennedy’s
concurring opinion in Rapanos, they also include (4) waters or
wetlands that have a “significant nexus” to a traditional
navigable water. [3]
Under the “relatively permanent flow” test, jurisdiction is found over “relatively permanent, standing or flowing bodies of
water . . . forming geologic features” and not “ordinarily dry
channels through which waters occasionally or intermittently
flows.” Rapanos, 547 U.S. at 732. This does not “necessarily
exclude streams, rivers, or lakes that might dry up in
extraordinary circumstances, such as drought. . . . [or] seasonal
rivers, which contain continuous flow during some months of the
year but no flow during dry months.” Id. at 732, n. 5 (internal
quotations omitted). Courts generally have found tributaries that
hold water for at least three months of the year to be sufficient
to meet the “relatively permanent” test. See e.g., United States
v. Mlaskoch, No. 10-2669, 2014 WL 1281523, at *17 (D. Minn. Mar.
31, 2014) (Tributaries with “seasonal flow for at least three
months” is sufficient to meet the Rapanos “relatively permanent”
standard.); United States v. Brink, 795 F. Supp. 2d 565, 579 (S.D.
Tex. 2011) (finding that a seasonal creek satisfied the Rapanos
plurality’s definition of a relatively permanent water); Sequoia
Forestkeeper v. U.S. Forest Serv., No. 09-392, 2011 WL 902120, at
*5 (E.D. Cal. Mar. 15, 2011) (finding a creek to be “relatively
permanent” even where it “dr[ies] up in the summer months”); see
also United States v. Moses, 496 F.3d 984, 989 (9th Cir. 2007)
(qualifying a tributary that holds water for only two months a
year as a water of the United States).
Under the significant nexus test, “navigable waters” extends to “a water or wetland [that] . . . possesses a
‘significant nexus’ to the waters that are or were navigable in
fact or that could reasonably be made so.” Rapanos, 547 U.S. at
at 780 (Kennedy, J., concurring) (citing Sold Waste Agency of
Northern Cook Cnty. v. Army Corps of Engineers, 531 U.S. 159
(2001)). “The required nexus [under the significant nexus test]
must be assessed in terms of the [CWA’s] goals and purposes.
Congress enacted the law to ‘restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters,’ 33
U.S.C. § 1251(a), and it pursued that objective by restricting
dumping and filling in ‘navigable waters,’ §§ 1311(a), 1362(12).”
Id. at 779-80. “[T]he significant nexus test does not require
laboratory tests or any particular quantitative measurements to
establish significance.” Precon Development Corporation v. U.S.
Army Corps of Eng’rs. (“Precon I”, 633 F.3d 278, 294 (4th Cir.
2011). The evidence need only support a finding that effects on
water quality are not “speculative or insubstantial.” Precon Dev.
Corp. v. Army Corps of Eng’rs, 603 F. App’x 149, 152 (4th Cir.
2015) (“Precon III”).
The contribution of flow, sediment, and other material to downstream waters, the support and exchanging of aquatic life
with downstream waters, and the processing of nutrients, materials
and pollutants are activities that can form a significant nexus
with traditional navigable waters. See United States v. Donovan,
661 F.3d 174, 186 (3d. Cir. 2011); United States v. Cundiff, 555
F.3d 200, 210-11 (6th Cir 2009).
B. Conclusions
1. “Persons”
Plaintiffs do not dispute that they are “persons” within the meaning of the CWA. Answer to Counterclaim, ¶ 42. Foster
Farms and Marking & Planning Specialists exercised responsibility
for the work as owners of the Pad 4 areas where the streams were
filled. Foster hired Fox Engineering to design the plans for the
pad construction and hired Walters Excavation to clear, fill, and
level the Site. M&P paid Walters Excavating for the work on Pad
4. The court concludes that Foster Farms, M&P and Ron Foster are
“persons” under the CWA.
2. “Discharge of Pollutant”
The court finds that plaintiffs’ activities of hiring and directing Walters Excavating to place excavated dirt, rocks,
and other fill material into the Pad 4 streams and construction of
a sediment pond constitutes a “discharge” of “pollutants” under
the CWA.
3. “From a Point Source”
The court concludes that the bulldozers, dump trucks, and other equipment used to deposit rock, dirt, and fill material
on the Site qualify as discharge “from a point source.”
4. “Into Waters of the United States”
a. “Relatively Permanent Flow”
The court finds that the evidence establishes that prior to being filled, RR4 flowed for at least four months a year on the
Site and was connected to the navigable portion of Neal Run, a
traditionally navigable water.
b. “Significant Nexus”
The court additionally finds that: (1) RR1, RR2, RR3, and RR4 support and exchange aquatic life with downstream waters;
(2) produce and export water, sediment, and solutes downstream,
and (3) support aquatic biofilms that process nutrients, minerals,
and pollutants, some of which are transported downstream. These
streams significantly affect the chemical, physical, and
biological integrity of the navigable portion of Neal Run and
therefore are “waters of the United States.”
5. “Without a Permit”
The parties do not dispute that plaintiffs did not obtain a Section 404 permit prior to filling the Pad 4 streams.
C. Summary
The court, accordingly, concludes that defendants have proven that plaintiffs have violated the Clean Water Act by a
preponderance of the evidence, in that the plaintiffs filled
waters of the United States without a Section 404 Clean Water
Permit to do so when they filled four headwater streams in 2010 on
the Neal Run Crossing Property.
The Clerk is directed to transmit copies of this order to counsel of record and any unrepresented parties.
ENTER: August 29, 2019
[1] The court granted summary judgment to the defendants on all of plaintiff’s claims against them, except that plaintiffs were granted summary judgment against defendants insofar as an Administrative Compliance Order by EPA purported to find that three of the four headwater streams at issue (R1, R2 and R3) were filled without the necessary Section 404 Clean Water Act Permit.
[2] Although the streams were not known by their “relevant reaches” or “RR” names at this time, the court will only refer to the streams by these names to prevent confusion.
[3] For a discussion of the plurality and concurring opinions in Rapanos and the decision by the court to apply both standards, see pages 12-21 of court’s August 14, 2017 memorandum opinion and order on the parties’ motions for summary judgment.