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Public Employees for Environmental Responsibility v. Schroer

United States District Court, E.D. Tennessee, Knoxville

March 9, 2017

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, and TENNESSEE CLEAN WATER NETWORK, Plaintiffs,
v.
JOHN SCHROER, in his official capacity as COMMISSIONER OF THE TENNESSEE DEPARTMENT OF TRANSPORTATION, Defendant.

          MEMORANDUM OPINION

         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and the consent of the parties [Doc. 14], including for entry of judgment.

         Now before the Court is the Plaintiff's Motion for Summary Judgment [Doc. 38] and the Defendant's Cross-Motion for Summary Judgment [Doc. 39]. Both Motions are now ripe for adjudication. Accordingly, and for the reasons more fully explained below, the Plaintiff's Motion for Summary Judgment [Doc. 38] is DENIED, and the Defendant's Cross-Motion for Summary Judgment [Doc. 39] is GRANTED IN PART.

         I. BACKGROUND

         The following facts are taken from the parties' undisputed material facts [Docs. 38-1, 42], unless otherwise noted. In the early 1990s, the Tennessee Department of Transportation (“TDOT”) proposed widening and improving State Routes 1 and 32 from Bean Station to Miller Hollow in Grainger County, Tennessee, including the permanent loss of .092 acre of wetlands. On August 9, 1994, the Tennessee Department of Environment and Conservation (“TDEC”) granted TDOT a Clean Water § 401 Certification (hereinafter, “§ 401 Certification”) “requiring “at least three” acres of wetland creation at the mitigation site. Further, in considering whether to grant a Clean Water Act § 404 dredge and fill permit (hereinafter, “§ 404 Permit”) for the project, the Army Corps of Engineers (“ACOE”), completed an environmental assessment, pursuant to the National Environmental Policy Act. Based on the environmental assessment, ACOE stated that TDOT's project would impact the environment but that the mitigation plan including a wetland creation ratio of about 3:1 would minimize the environmental impacts. On September 6, 1994, ACOE issued a Clean Water Act § 404 Permit to TDOT for the roadwork project. Special Condition 10 of the § 404 Permit explicitly required TDOT to “strictly comply” with the wetland mitigation plan.

         After a visit to the wetland mitigation site on May 17, 1996, TDOT and TDEC officials concluded that the wetland creation was not meeting stipulated goals, and therefore, TDOT revised its mitigation plan by increasing wetland creation from 3.0 acres to 3.268 acres. A month later, ACOE approved this revised plan requiring the creation of 3.268 wetland acres. Subsequently, in July 1997, TDOT sought an extension of time from both ACOE and TDEC to complete the road work. In its letter, TDOT stated that it had created only 1.01 wetland acres but wanted to halt further wetland creation due to the discovery of pyritic material at the mitigation site, the excavation of which could release acidic and iron laden material into Briar Fork Creek. TDOT requested an exemption from the permitted mitigation plan that required the creation of at least 3 acres of wetland. ACOE granted TDOT a one year extension and added, “In regards to the mitigation, according to your documentation you have attained a 1:1 functional replacement. We agree that any further expenditures would not be warranted, considering that pyritic material has been encountered.” [Doc. 39-20 at 2].

         TDEC also granted a one year extension, but the parties are in dispute as to whether TDEC decreased the permitted mitigation acreage. The TDEC letter, dated August 28, 1997, states, in relevant part:

In regards to the wetland mitigation, the Division has decided that TDOT shall remove the inflow/outflow pipe at the downstream end of the mitigation site. In addition, TDOT shall investigate and, if feasible, convey flow from the conveyance on the western property line (flows from Briar Hollow Road to Briar Ford Creek) into the wetland mitigation site. Monitoring of the site shall continue as required.

[Doc. 38-19]. The letter is signed by Mike Lee. [Doc. 38-19]. The Plaintiff argues that the plain language of the letter shows that TDEC did not decrease the permitted mitigation acreage. The Defendant argues otherwise and submits the Affidavit of Mike Lee [Doc. 41], which states, in relevant part:

In my capacity as TDEC's wetland expert and permit writer, I determined that the 1.01 acres was sufficient mitigation to offset the permitted environmental impacts. . . . My letter of August 28, 1997, was written to reflect TDEC's acceptance of both TDOT's request and the Corps of Engineers approval of the permit modification request. In my letter, I stated that specific mitigation requirements be performed with the intention of closure of the site and also granted approval of the one year extension request contained in the modification request.

[Doc. 41 at 2].

         The Plaintiffs, non-profit organizations, filed suit [Doc. 1] on December 18, 2014. The Complaint alleges that the Defendant failed to ensure compliance with the terms and conditions of the § 401 Certification issued to TDOT by TDEC pursuant to 33 U.S.C. § 1341 and the § 404 Permit issued by ACOE pursuant to 33 U.S.C. § 1344. The Plaintiffs allege that TDOT was required to create approximately 3.268 acres of new wetlands on adjacent TDOT land. The Plaintiffs also allege that the § 401 Certification requires that three acres of the adjacent land on TDOT's property receive a deed restriction to protect the property in its natural state in perpetuity. The Plaintiffs allege that the Defendant has not ensured compliance with these requirements.

         Further, the Plaintiffs allege that in 2011, TDOT conducted a site assessment and found approximately 1.1 acres of created wetland, which is below the 3.268 acres required by the § 404 Permit and the § 401 Certification. In addition, the Plaintiffs allege that even the 1.01 acres should not be counted as completed mitigation because water quality testing performed in 1998 by TDOT revealed acidic conditions falling below the state minimum for fish and aquatic life. The Plaintiffs assert that TDOT effectively created no wetland acreage that meets water quality standards and that the Defendant has done nothing to correct this failure. The Plaintiffs allege that a deed restriction is now in place but that the deed fails to restrict the property in perpetuity as the § 401 Certification requires. Plaintiffs seek declaratory and injunctive relief to correct these alleged violations, as well as an award of costs and attorney's fees pursuant to 33 U.S.C. § 1365.

         II. POSITIONS OF THE PARTIES

         Both parties have filed dispositive motions. The Court will begin with the ...


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