Public Employees for Environmental Responsibility et al v. Schroer (TV2)

Filing 60

MEMORANDUM OPINION in support of the following Order dismissing case. Signed by Magistrate Judge H. Bruce Guyton on 3/9/17. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
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.
)

No. 3:14-cv-589-HBG

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].

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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

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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 Plaintiffs’

Motion since it was filed first.
(a)

Plaintiffs’ Motion for Partial Summary Judgment

The Plaintiffs seek partial summary judgment as to whether Defendant violated the Clean
Water Act (“CWA”) permit by failing to comply with the conditions requiring the creation of a
specified amount of wetlands at a mitigation site to compensate for wetlands that TDOT filled
during roadwork. The Plaintiffs assert that ACOE has no power to change conditions required by
a § 401 Certification without the concurrence of the state and that such an action would undermine
the entire concept of § 401 Certifications, which are crucial to sovereign states’ ability to protect
the health and safety of their citizens when the federal government issues dredge and fill permits.
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The Plaintiffs assert that the Defendant failed to create 3.268 wetland acres at the mitigation site
as required and that neither TDEC nor ACOE legally modified wetland acreage requirements. The
Plaintiffs state that TDEC never modified the § 401 Certification and that ACOE had no power to
alter a § 401 certification’s requirements without the state’s assent.
(b) The Defendant’s Cross Motion for Summary Judgment
The Defendant asserts that the citizen’s complaint provisions of the CWA do not provide
the Plaintiffs the right to sue in order to enforce the conditions of a § 404 Permit issued under 33
U.S.C. § 1344. Specifically, the Defendant asserts that the purpose of the citizen’s suit provision
of the CWA is for enforcement of violations of the § 404 Permit and that the Administrative
Procedure Act is the appropriate avenue for legal redress. Further, the Defendant argues that the
Plaintiffs have failed to file their cause of action within the statute of limitations period for CWA
claims and that the Plaintiffs have failed to establish standing. Finally, the Defendant asserts that
it has recorded land use restrictions on the wetland mitigation site and that its wetland mitigation
site is in compliance with the § 401 modified Certification and the regulations of TDEC.
III.

STANDARD OF REVIEW
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317,
330 n. 2 (1986); Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and
all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett
v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).

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“Once the moving party presents evidence sufficient to support a motion under Rule 56,
the nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis v. Universal
Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). To
establish a genuine issue as to the existence of a particular element, the non-moving party must
point to evidence in the record upon which a reasonable finder of fact could find in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be
material; that is, it must involve facts that might affect the outcome of the suit under the governing
law. Id.
The Court’s function at the point of summary judgment is limited to determining whether
sufficient evidence has been presented to make the issue of fact a proper question for the finder of
fact. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or determine the truth of
the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989). Thus, “the inquiry performed is the threshold inquiry of determining whether there is a
need for a trial—whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250.
IV.

ANALYSIS
Because the Defendant raises issues with respect to subject matter jurisdiction, the Court

will first address these arguments. The Defendant argues that the Plaintiffs lack standing to sue. In
addition, the Defendant contends that the CWA grants citizens the right to sue for enforcement of
certain violations, but this right is limited in scope and not present here. Accordingly, because the
Court finds that the Plaintiffs lack standing, the Court will not address the Defendant’s latter

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argument. See A.C.L.U. of TN v. Rutherford County, TN, No. 3:09-cv-0396, 2006 WL 2645198,
*7 (M.D. Tenn. Sept. 14, 2006) (“Standing is a jurisdictional requirement because if a plaintiff
does not have standing to bring a claim, a federal court is without power to rule on the issues
presented.”).
The CWA was implemented to “restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Pursuant to the CWA, the “discharge of
any pollutant by any person” is strictly prohibited, except in compliance with one of the permitting
schemes set forth in the CWA. 33 U.S.C. § 1311(a). Further, pursuant to 33 U.S.C. § 1341(a), any
applicant for a federal license or permit to conduct any activity that will result in discharge into
navigable waters shall obtain and provide to the permitting agency a water quality certification
from the State, certifying that the discharge will comply with all application provisions. The ACOE
is authorized under 33 U.S.C. § 1344 to issue permits “for the discharge of dredged or fill material
into the navigable waters at specified disposal sites.” Moreover, any condition set forth in a § 401
certification becomes a condition of the § 404 permit. 33 U.S.C. § 1341(d).
Moreover, the CWA permits certain citizen suits. Specifically, any citizen may commence
a civil action on his own behalf –
(1) against any person (including (i) the United States, and (ii) any
other governmental instrumentality or agency to the extent
permitted by the eleventh amendment to the Constitution) who is
alleged to be in violation of (A) an effluent standard or limitation
under this chapter or (B) an order issued by the Administrator or a
State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under this chapter which
is not discretionary with the Administrator.
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to enforce
such an effluent standard or limitation, or such an order, or to order
the Administrator to perform such act or duty, as the case may be,
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and to apply any appropriate civil penalties under section 1319(d) of
this title.
33 U.S.C. § 1365. The term “citizen” means “a person or persons having an interest which is or
may be adversely affected.” 33 U.S.C. § 1365(g).
Although the CWA allows citizen suits, in some circumstances, see 33 U.S.C. § 1365(f),
the Plaintiffs must establish standing to bring suit. An association has standing to bring suit on
behalf of its members when: (1) its members would otherwise have standing to sue as individuals;
(2) the interests at stake are germane to the group’s purpose; and (3) neither the claim made nor
the relief requested requires participation of individual members in the suit. Friends of the Earth,
Inc., v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000). The Defendant does not challenge the
latter two factors. Instead, the Defendant asserts that the Plaintiffs have not established that its
members would have standing to sue. Thus, the principle issue before the Court is whether the
Plaintiffs’ members would otherwise have standing to sue in their own right.
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), the Supreme Court held
that to establish Article III’s standing requirements, a plaintiff must demonstrate that he/she has
(1) suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent,
as opposed to conjectural or hypothetical; (2) the injury is fairly traceable to the defendant's
challenged action; and (3) it is likely, not speculative, that the injury will be redressed by a
favorable decision. The plaintiff bears the burden of establishing injury, traceability, and
redressability because he/she is seeking to invoke federal jurisdiction. Lujan, 504 U.S. at 561.
With respect to injury in fact, “The relevant showing for purposes of Article III standing . . .
is not injury to the environment but injury to the plaintiff.” Laidlaw, 528 U.S. at 181. Further,
“environmental plaintiffs adequately allege injury in fact when they aver that they use the affected

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area and are persons “for whom the aesthetic and recreational values of the area will be lessened”
by the challenged activity.” Id. at 182 (citing Sierra Club v. Morton, 405 U.S. 727, 725 (1972)).
In order to establish standing, the Plaintiffs submitted the Declaration of Richard Stratford
[Doc. 50-2]. Mr. Stratford is a member of the Public Employees for Environmental Responsibility
and of the Tennessee Clean Water Network. His Declaration states as follows:
My family and I enjoy the beauty of Cherokee Lake every single
day, both on and off the water. We frequently boat, fish, entertain,
and marvel at the wonder of the lake.
The last time I visited Cherokee Lake was this morning, October 22,
2014, to see the sunrise. I enjoy Cherokee Lake because it is so
beautiful, quiet, and ever changing.
We enjoy observing the plants and wildlife that depend upon the
river and lake. We enjoy watching herons in March do their mating
rituals along the shores of the lake, and then we wait and wait for
the little herons to arrive and grow up during the summer on Island
12. We see many species of birds during the migratory months for
spring and fall, and we love to be out on the lake during a hatch of
minnows and we watch the larger fish jumping out the water after
them. We enjoy seeing and feeding many species of birds, and
especially enjoy the hummingbirds from March-October.
Wetlands provide very valuable ecosystem services, which is why it
is vital that permit holders fully comply with permit requirements
designated to ensure no net loss of wetland value. I am concerned
that the insufficiency of the wetlands mitigation at issue in this case
could be affecting the health of Cherokee Lake and interfering with
my aesthetic, recreational, and wildlife preservation interest in this
river system.
The Court has considered both parties’ positions in this case, and the Court finds that the
Plaintiffs have not established standing to sue. Mr. Stratford’s Declaration alleges only a
generalized grievance and not an actual, individualized injury. Mr. Stratford explains how he
utilizes the lake, both for recreational use and aesthetic value, but does not explain how the failure
to mitigate the wetlands affects his recreational use or aesthetic value. See Lujan, 504 U.S. 560

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(explaining that an injury in fact must be “actual or imminent”). Instead, Mr. Stratford asserts, in
a conclusionary fashion, “I am concerned that the insufficiency of the wetlands mitigation at issue
in this case could be affecting the health of Cherokee Lake and interfering with my aesthetic,
recreational and wildlife preservation interest in this river system.” (Emphasis added). The Court
finds that Mr. Stratford’s concern that the insufficiency of wetlands mitigation could affect health
or interfere with certain activities does not establish standing. See Center for Biological Diversity
v. Lueckel, 417 F.3d 532, 538 (6th Cir. 2005) (noting that “[e]xpressions of generalized concern
are insufficient to establish requisite injury”) (citing Laidlaw, 528 U.S. at 199 (Scalia, J.,
dissenting)); compare American Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Com’n, 389
F.3d 536, 541 (6th Cir. 2004) (plaintiffs established standing when the member alleged that the
river was dark and oily, the pollution detracted from her enjoyment, she no longer recreated on the
river, she was concerned for the harmful impacts, and was interested in obtaining correct
information regarding the pollution).
The Plaintiffs assert in their brief that Mr. Stratford has sustained three concrete and
particularized injuries: (1) the wetland ecosystem services he would have enjoyed had Defendant
provided the 3.268 wetland acres required have never been provided; (2) Defendant’s acidification
of the water at the mitigation site by excavating into pyritic material threats Mr. Stratford’s
aesthetic and recreational interests because the unnatural pH at the mitigation site harms the
ecosystem health of Cherokee Lake; and (3) Defendant’s deed restriction does not protect the
property in perpetuity but allows development of the mitigation site at any time without public
notice, leaving Mr. Stratford unable to feel secure in knowing that the site will continually provide
the ecosystem benefits it was meant to provide. [Doc. 50 at 4]. However, none of these alleged
injuries are found in Mr. Stratford’s Declaration. See McKay v. Federspiel, 823 F.3d 862, 867 (6th

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Cir. 2016) (explaining that “in response to a summary judgment motion, a plaintiff cannot rely on
‘mere allegations’ with respect to each standing element, ‘but must set forth by affidavit or other
evidence specific facts, which for purposes of the summary judgment motion, will be taken to be
true.’” (Quoting Lujan, 504 U.S. at 561). As noted above, Mr. Stratford simply states that he is
concerned that the mitigation issue could be affecting health and interfering with his interests. As
the Defendant noted, Mr. Stratford has not explained how he has been injured or impacted by the
wetland mitigation area. Accordingly, because the Court finds that the Plaintiffs have not
established standing, the Court lacks subject matter jurisdiction to address the remaining
arguments.
V.

CONCLUSION
Based on the foregoing, the Plaintiffs’ Motion for Summary Judgment [Doc. 38] is

DENIED as futile, and the Defendant’s Cross-Motion for Summary Judgment [Doc. 39] is
GRANTED to the extent it seeks dismissal of this action for lack of subject matter jurisdiction. A
separate judgment will enter DISMISSING this case WITHOUT PREJUDICE.
ORDER ACCORDINGLY:

United States Magistrate Judge

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