Public Employees for Environmental Responsibility et al v. Schroer
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Thomas A Varlan on 3/31/21. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
PUBLIC EMPLOYEES FOR
ENVIRONMENTAL RESPONSIBILITY and )
TENNESSEE CLEAN WATER NETWORK, )
CLAY BRIGHT, in his official capacity as
COMMISSIONER OF THE TENNESSEE
DEPARTMENT OF TRANSPORTATION,
This civil action is before the Court following a three-day bench trial occurring on
January 12–14, 2021 [Docs. 68–72, 76–78]. Because of the ongoing COVID-19 pandemic,
and with the agreement of the parties, the Court conducted the bench trial via
videoconference [Docs. 58, 62].
After giving careful consideration to the testimony of the witnesses [Doc. 71], the
exhibits introduced at trial [Doc. 72], the transcripts of the proceedings [Docs. 76–78], the
proposed findings of fact and conclusions of law [Docs. 84, 86], the post-trial briefs
[Docs. 83, 85, 88, 89], and the applicable law, the Court herein makes its findings of fact
and conclusions of law as required by Federal Rule of Civil Procedure 52(a) (“In an action
tried on the facts without a jury . . . , the court must find the facts specifically and state its
conclusions of law separately.”). Before presenting its findings of fact and conclusions of
law, the Court will first set forth a short summary of the procedural history of this matter,
as well as address two preliminary issues.
Plaintiffs Public Employees for Environmental Responsibility and Tennessee Clean
Water Network seek declaratory and injunctive relief pursuant to 33 U.S.C. § 1365(a)(1)
against defendant Clay Bright, in his official capacity as Commissioner of the Tennessee
Department of Transportation (“TDOT” or “defendant”) for violations of permits issued
pursuant to 33 U.S.C. §§ 1341 and 1344 of the Clean Water Act, 33 U.S.C. § 1251, et seq.
(“CWA”) [Doc. 1]. The two permits at issue in the complaint are the § 401 Water Quality
Certification No. 92-142 issued to TDOT by the Tennessee Department of Environment
and Conservation (“TDEC”) under 33 U.S.C. § 1341 (the “Certification”) and the § 404
Permit No. 52,789 issued by the United States Army Corps of Engineers (“ACOE”) under
33 U.S.C. § 1344 (“Permit”) [Doc 1 at ¶ 2]. The Court granted defendant’s motion to
dismiss “to the extent that plaintiffs’ complaint alleges that TDEC and the ACOE used
improper procedures to modify defendant’s Certification and Permit” and “to the extent
that plaintiffs allege violations of defendant’s § 404 Permit” [Doc. 36]. Plaintiffs were
allowed to “proceed with their claims to the extent that they allege violations of defendant’s
§ 401 Certification.” [Id.].
At summary judgment, the Court found that plaintiffs’ remaining claims raised three
(1) Whether TDEC’s August 29, 1997 letters legally alter the
[C]ertification’s wetland mitigation acreage requirement, (2) whether
defendant complied with the [C]ertification to create a specified amount of
wetland acres, and (3) whether defendant has complied with the
[C]ertification requirements with respect to the land use restriction
[Doc. 54 at p. 7]. The Court denied both parties’ motions for summary judgment with
respect to the first two issues, and deferred ruling1 on issue three, finding that while the
third issue raised what “appear[ed] to present purely legal questions,” the matter would
proceed to a bench trial regardless to address the first two issues [Id. at pp. 19-20].
The parties’ Pretrial Order identifies the following issues to be resolved at trial:
Was the § 401 [C]ertification modified in 1996 to expand the
[C]ertification’s wetland mitigation requirement to 3.268 acres?
Was the § 401 [C]ertification modified by the TDEC in 1997 to
decrease the [C]ertification’s wetland mitigation acreage requirement
to 1.01 acres?
What acreage of wetlands was the TDOT required to construct in
order to comply with the § 401 [C]ertification and/or the modified
§ 401 [C]ertification?
How many acres of wetlands mitigation area has TDOT actually
constructed or otherwise caused to exist at the mitigation site?
Is the wetland area at the mitigation site in compliance with TDEC’s
water quality criteria?
Do the deed restrictions imposed by the Notice of Land Use
Restrictions applicable to the mitigation area comply with the
requirements of the § 401 [C]ertification and TDEC’s regulations?
[Doc. 63 at ¶ 7].
While the Court deferred ruling, the instant opinion resolves all remaining issues in this
litigation. To the extent that no formal ruling was made as to summary judgment on the Notice of
Land Use Restriction issue, the cross motions for summary judgment are now moot.
After the trial, defendant, in his post-trial brief [Doc. 83], challenged whether
plaintiffs have presented any evidence to establish Article III standing to sue. Defendant
first raised this issue in his motion to dismiss [Doc. 27]. In the absence of Article III
standing, the Court would lack subject matter jurisdiction, and the case would necessarily
be dismissed. Warth v. Seldin, 422 U.S. 490, 498 (1975); Wuliger v. Mfrs. Life Ins. Co.,
567 F.3d 787, 793 (6th Cir. 2009).
As the Court set out in its Order addressing the motion to dismiss [Doc. 36], to
establish Article III standing, a plaintiff must show:
(1) it has suffered an injury in fact that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a
Wuliger, 567 F.3d at 793 (quoting Am. Civil Liberties Union of Ohio, Inc. v. Taft, 385 F.3d
641, 645 (6th Cir. 2004)). Moreover, “[a]n association has standing to bring suit on behalf
of its members when its members would otherwise have standing to sue in their own right,
the interests at stake are germane to the organization’s purpose, and neither the claim
asserted nor the relief requested requires the participation of individual members in
the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S.
167, 181 (2000) (citing Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333,
Defendant disputes whether plaintiffs have successfully demonstrated that their
members have suffered an injury-in-fact. Such an injury must consist of “an invasion of a
legally-protected interest.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Environmental plaintiffs must show their own injury, rather than one to the environment.
Laidlaw, 528 U.S. at 181. Injury-in-fact is adequately alleged for environmental plaintiffs
“when they aver that they use the affected area and are persons for whom the aesthetic and
recreational values of the area will be lessened by the challenged activity.” Laidlaw,
528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)) (internal
At the motion to dismiss stage, plaintiffs’ injury-in-fact need only be supported by
general factual allegations. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (U.S. 1992)
(“At the pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we presume that general allegations
embrace those specific facts that are necessary to support the claim.”) (internal quotations
omitted). This is in contrast to the summary judgment stage, where a “plaintiff can no
longer rest on such mere allegations, but must set forth by affidavit or other evidence
specific facts, which for purposes of the summary judgment motion will be taken as true.”
Lujan, 504 U.S. at 561 (internal citations and quotations omitted). “And at the final stage,
those facts (if controverted) must be supported adequately by the evidence adduced at
trial.” Lujan, 504 U.S. at 561 (emphasis added, internal citations and quotations omitted).
The Court, in denying the motion to dismiss as to the issue of standing and
jurisdiction, held that:
[p]laintiffs have met their burden at this stage. Both declarations make clear
that Mr. Stratford and Mr. Proios have recreational and aesthetic interest in
Cherokee Lake, as they frequently go boating, Mr. Stratford goes
birdwatching, and Mr. Proios lives on its shore and frequently collects water
samples [Docs. 1-2, 1-3]. Furthermore, Mr. Stratford and Mr. Proios have
alleged that defendant’s actions have caused them concrete and
[Doc. 36 at p. 12].
When defendant raised the issues of standing and jurisdiction in his post-trial brief
[Doc. 83], the Court Ordered the parties to file supplemental briefs addressing those issues
[Doc. 87]. Plaintiffs’ supplemental brief [Doc. 88] points to the parties’ agreed Pretrial
Order [Doc. 63] as well as an email chain between counsel for plaintiffs and defendant
[Doc. 88-1], arguing that plaintiffs’ counsel believed that the issue of standing had been
resolved, that defendant was not going to challenge standing, and thus there was no need
to call Mr. Stratford and Mr. Proios at trial. Plaintiffs further argued that the Court should
reopen evidence and allow plaintiffs to present evidence on the issue of standing.
Defendant responded [Doc. 89], arguing that he did not stipulate to jurisdiction/standing,
and arguing that jurisdiction can be challenged at any time.
The parties’ agreed Pretrial Order states the following with respect to the subject of
Plaintiffs claim that the Tennessee Department of Transportation (“TDOT”
or “Defendant”) has failed to create wetlands near a widened section of State
Routes 1 and 32 in Grainger County, Tennessee (the “mitigation site”) in
accordance with a certification granted to Defendant under section 401 of the
Clean Water Act (“CWA”). The widening resulted in the filling of
approximately 0.92 acres of wetlands upstream of Cherokee Lake [Doc. 1;
Doc. 36 at 1-2]. Plaintiffs bring their claim under the citizen suit provision
of the CWA, 33 U.S.C. § 1365(a)(1). The Court has ruled that because the
case stems from alleged violation of a federal statute, the Clean Water Act,
it is a federal question within the bounds of 13 U.S.C. § 1331 [Doc. 36].
The Court has ruled that Plaintiffs have standing. Plaintiffs’ members
Mr. Stratford and Mr. Proios have recreational and aesthetic interests in
Cherokee Lake [Docs. 1-2, 1-3; Doc. 36 at 12]. The Court determined the
Plaintiffs’ injury in fact need only be supported by general factual
allegations. The Court granted the Defendant’s Motion to Dismiss the
allegations in the Complaint that alleges that TDEC and the ACOE used
improper procedures to modify defendant’s Certification and Permit. The
Court also dismissed the Plaintiffs’ alleged violations of Defendant’s § 404
Permit [Doc. 36, at 32].
[Doc. 63 at ¶ 1 (emphasis added)]. A January 6, 2021, email from defense counsel to
plaintiffs’ counsel states:
Standing is not an issue at trial. The court has to decide at the outset if the
plaintiffs have standing and the court has already ruled in the Plaintiffs favor.
In fact the defendants aren’t allowed to challenge the affidavit testimony,
which is why we did not take the deposition. If you are presenting them as
witnesses, we will file a motion to exclude them.
[Doc. 88-1 at p. 3 (emphasis added)].
Defendant is correct that plaintiffs did not present any evidence on the question of
standing at trial. However, based on the Pretrial Order and the email cited above, it is also
clear that plaintiffs believed that jurisdiction was not in dispute. In fact, from the email
chain, it is clear that plaintiffs planned on presenting evidence on the question of
jurisdiction, but elected not to based on defendant’s contention that “[s]tanding is not an
issue at trial.” Defendant is also correct that jurisdiction can be challenged at any time,
and that a different standard of proof is required to establish standing at various stages of
litigation (as the Court set forth above). However, as the Lujan court noted, whether or not
the issue of standing is controverted is relevant for what level of proof is required at trial.
See Lujan, 504 U.S. at 561 (“And at the final stage, those facts (if controverted) must be
supported adequately by the evidence adduced at trial.”) (emphasis added, internal citations
and quotations omitted).
The Court finds that, given defense counsel’s statement that “[s]tanding is not an
issue at trial,” coupled with the parties’ agreed Pretrial Order, which presents no issues on
the question of standing, it would be entirely prejudicial to plaintiffs for the Court to
preclude plaintiffs from presenting evidence of standing at this stage, evidence the
plaintiffs initially planned to present before they were dissuaded by defendant. In this
instance, the Court will reopen evidence to the extent that the Court accepts the previously
filed affidavits of Mr. Stratford and Mr. Proios [Docs. 1-2, 1-3] as if they were presented
at trial. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S. Ct.
795, 28 L. Ed. 2d 77 (1971) (holding that the decision to reopen a bench trial is addressed
to the Court's sound discretion) (citations omitted). To the extent that defendant may argue
he would be prejudiced by the Court relying on the affidavits previously submitted in this
case, the Court finds that any prejudice defendant might face would be outweighed by the
prejudice plaintiffs would face if the case were dismissed for lack of evidence regarding
The Court finds that the evidence presented by these stipulations is sufficient to
establish Article III standing in this case. Both declarations are sworn under penalty of
perjury and make clear that Mr. Stratford and Mr. Proios have recreational and aesthetic
interest in Cherokee Lake, as they frequently go boating, Mr. Stratford goes birdwatching,
and Mr. Proios lives on its shore and frequently collects water samples [Docs. 1-2, 1-3].
Furthermore, Mr. Stratford and Mr. Proios have alleged that defendant’s actions have
caused them concrete and particularized harms.
The declarations aver that Mr. Stratford’s and Mr. Proios’s above-mentioned
recreational and aesthetic interests in the lake are harmed by defendant’s activities: namely
defendant’s failure to provide 3.268 wetland acres and the resulting loss of ecosystem
services they would have otherwise enjoyed, defendant’s uncovering of pyritic rock which
harms the ecosystem health of Cherokee Lake and their enjoyment of it, and defendant’s
deed restriction which leaves the declarants feeling insecure that the site will continue to
provide the ecosystem benefits it was meant to ensure [Docs. 1-2, 1-3]. The Court finds
that there is sufficient evidence of record to establish the ecological connection between
the mitigation site and Cherokee Lake, as well as the fact that preservation of wetlands
supports the ecological health of the connecting waterways around the mitigation site.
Accordingly, the Court finds that with the now admitted sworn testimony represented by
the two affidavits, there is sufficient evidence in the trial record to establish Article III
In reaching this decision, the Court notes that it ultimately rules in favor of the
defendant on the merits. Fully reopening the evidence to present live testimony which
would be duplicative of the affidavits would be a waste of the time and resources of the
parties, as well as the judicial resources of the Court, and would not change the ultimate
outcome of this matter.2
Prior to trial, plaintiffs objected to the admission of Defendant’s Exhibits
Nos. 14 (slides 2-5 only), 15, 16, and 17 [Doc. 64]. Plaintiffs also raised the same objection
during trial. As grounds, plaintiffs argued that these exhibits relate to the issue of the deed
restriction, which the Court previously ruled “appears to present purely legal questions”
[Doc. 54 at p. 19]. As a purely legal question, plaintiffs argued that it would be improper
to present evidence on the issue. The Court deferred ruling and admitted the evidence in
question subject to a final ruling on the objection.
While the Court did previously rule that issues relating to the deed restriction appear
to present questions of law, after further consideration of the issue, in conjunction with the
evidence presented, the Court finds that the evidence in question does present relevant
factual evidence which informs the Court’s application of the law. Specifically, the Court
finds that the exhibits in question explain what role TDEC played in the development and
approval of the land use restriction at issue in this case, which is relevant to the Court’s
application of the law. Accordingly, plaintiffs’ objections [Doc. 64 and objections made
during trial] are OVERRULED. Having resolved the outstanding preliminary issues, the
Court now presents its findings of fact and conclusions of law.
The Court limits this ruling to the specific facts of this case. Future litigants would be
prudent to ensure that the question of jurisdiction has either previously been fully addressed by the
Court or to present the evidence at trial needed to support jurisdiction.
Findings of Fact3
In the early 1990s TDOT undertook steps to widen certain sections of State
Routes 1 and 32 in Grainger County, Tennessee (the “Project”). As part of this process,
TDOT determined that it would need to fill in approximately 0.92 acres of wetlands,
located at Briar Fork Branch Mile 1.5, north of Briar Fork Embayment of Cherokee Lake,
which then filtered tributary waters flowing into Cherokee Lake [Def. Exs. 1 and 3].
On September 6, 1994, the ACOE issued a Clean Water Act § 404 Permit to
TDOT [Def. Ex. 1].
On August 9, 1994, TDOT was granted a Clean Water Act § 401
Certification of its § 404 Permit by the Tennessee Department of Environment and
Conservation (“TDEC”) pursuant to its delegated authority under § 401 of the Clean Water
Act (“CWA”), 33 U.S.C. § 1341, which included various conditions and restrictions that
the Project must meet [Def. Ex. 4].
The parties stipulate that “[t]he original CWA § 401 Certification TDOT
obtained from TDEC required TDOT to create at least three acres of wetland to compensate
for filling an existing wetland for a road work project” [Doc. 63 at ¶ 8(a)]. This was one
of the conditions required by the Certification [Def. Ex. 4 at p. 4, ¶ 11].
The Certification also contained a requirement that “A total of 3.0 acre will
be indentured into a declaration of restriction which will become an attachment to the deed
The Court only makes the findings of fact necessary to reach its conclusions of law.
Furthermore, as all issues related to the ACOE’s Permit were resolved prior to trial, the Court
focuses primarily on the Certification, not the Permit.
and run with the property,” defined as “an attachment to a deed to protect, in perpetuity,
the aesthetic, educational, or ecological values” of the created wetlands [Def. Ex. 4
at p. 4, ¶ 11].
The Certification also required TDOT to “monitor the created wetland and
guarantee its success,” with “success” defined as “being able to delineate the wetland as a
jurisdictional wetland by the best available technique,” as well as to prevent violations of
state water quality criteria [Def. Ex. 4 at p. 5, ¶ 13 and p. 5].
By letter dated September 25, 1996, TDOT notified TDEC that the wetland
mitigation area was not meeting stipulated goals. TDOT proposed a revised mitigation
plan to increase wetland creation at the site from 3.0 acres to 3.268 acres [Def. Ex. 5].
By letter dated July 15, 1997, TDOT notified TDEC that pyritic material was
discovered underlying the mitigation site, and that any further attempt to expand the
mitigation site would result in the exposure of the pyritic material, which would release
acidic and iron laden material into Briar Fork Creek. Because of the discovery of the pyritic
material, TDOT requested that the 1.01 acres of then created wetland mitigation area be
counted as sufficient to satisfy the requirements of the Certification, which originally
required the creation of 3.0 acres of wetland. The letter also sought a one-year extension
to complete road work [Def. Ex. 6].
By letter dated August 28, 1997, Mike Lee, an employee of TDEC involved
in the approval of the Certification and any modifications, sent TDOT a letter responding
to TDOT’s July 15, 1997, letter. Mr. Lee’s letter does not directly state that TDOT’s
request of a reduction of the Certification’s 3.0 mitigation area requirement to accept the
then created 1.01 acres was approved. Instead, the letter states, in pertinent part, “[i]n
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 . . . into the wetland mitigation site. Monitoring of the site shall continue as required.”
The letter does directly approve the request for a one-year extension of road work
construction [Def. Ex. 8].
At trial, Mr. Lee testified that he modified the Certification to accept the
1.01 created wetland mitigation area as sufficient no net loss of resource value for the
.092 wetland loss. Mr. Lee stated that his August 28, 1997, letter both approved the
modification of the Certification to reduce the 3.0 acres of required wetland mitigation to
the 1.01 acres of already created wetland mitigation, as well as adding the additional
requests specifically spelled out in the letter [Transcript Vol.1, Doc. 76, pp. 197-198].
Mr. Lee confirmed on cross-examination that the August 28, 1997 letter does
not specifically state that the request for a reduction of the wetland mitigation requirement
was approved, but that it was his intention that the letter act as an approval [Transcript Vol.
2, Doc. 77, pp. 32-33].
Mr. Lee testified that his approval of the modification to reduce the
Certification’s wetland mitigation requirement to 1.01 acres was premised in part on his
finding that there was no net loss in wetland resource value. He testified that he had the
authority to make the modification under those circumstances [Transcript Vol. 2, Doc. 77,
Mr. Lee testified that the pH level of the water found in an area, standing
alone, does not preclude classification of that area as a wetland. Mr. Lee noted that the
cranberry bogs of Johnson County, TN, which he described as “highly important
wetlands,” have a pH level of 3 [Transcript Vol. 1, Doc. 76, pp. 204-205].
Mr. Lee testified that open water areas can be included as wetlands for the
purposes of the creation of wetland mitigation. Mr. Lee described a variety of factors
which are considered when deciding whether something constitutes a wetland, but stated
that he did visit the site in question after litigation was filed, and that during his visit he
and his colleagues catalogued 78 different species in the area, of which approximately 80
percent were hydrophytic. In concluding that the site qualified as a wetland, Mr. Lee
summarized that even though there was a section that consisted of open water, that the area
still had vegetation in some parts, substrate in others, and “it’s classified as a wetland type”
[Transcript Vol 1, Doc. 76, pp. 198-202].
Mr. Lee’s site report, from his August 17, 2015, site visit, indicates that he
found a rare, threatened orchid (Planthera flava var. herbiola) in the area, which qualified
the site as an “exceptional Tennessee Waters” [Def. Ex. 30 at p. 7]. The report also details
the procedures followed and the findings he made from his visit to the area [Def. Ex. 30].
Mr. Lee testified that “to my knowledge, no construction activity above the
wetland mitigation site, so how could there be this issue going into the wetland mitigation
site? Again, my knowledge is everything’s flowing downstream” [Transcript Vol. 2,
Doc. 77, p. 79].
The parties stipulate that “[i]n 1997, TDOT ended wetland creation at the
mitigation site after creating 1.01 wetland acres” [Doc. 63 at ¶ 8(b)].
Todd Hughes, a professional geologist, made an independent evaluation of
the geologic natural conditions of the wetland mitigation area. Mr. Hughes opined that the
natural bedrock underlying the area of the road construction project at issue (including the
mitigation site) is part of the Chattanooga Shale Formation, which is known to contain
pyrite. Mr. Hughes further opined that if TDOT had further expanded the wetland
mitigation site they would run the risk of striking bedrock and exposing the shale
[Transcript Vol 1, Doc. 76, p. 178-186 and Def. Ex. 11].
Mr. Hughes explained that the Chattanooga Shale Formation contains pyrite,
also known as iron sulfide. He explained that when iron sulfide is exposed to water, such
as rainwater, the iron sulfide oxidizes, releasing sulfuric acid. Mr. Hughes confirmed that
the existence of pyritic material is a naturally occurring condition in the environment
[Transcript Vol. 1, Doc. 76, pp. 186-187].
Mr. Hughes testified that he visited the area in question multiple times, at
least three times, for several hours each visit. While visiting the location, Mr. Hughes
inspected both the land inside the wetland mitigation area, as well the surrounding area,
which contained tributaries flowing into the mitigation site.
During his site visits,
Mr. Hughes observed signs of pyritic material in the tributaries flowing into the mitigation
site, specifically “staining that would indicate oxidation of pyrite.” Mr. Hughes confirmed
that the existence of the pyritic material in the tributaries flowing into the mitigation site
was a naturally occurring condition [Transcript Vol. 1, Doc. 76, pp. 187-188].
On cross-examination, Mr. Hughes did not know if the pyritic material he
observed was exposed because of human activity, did not know if the water in the area was
acidic before TDOT began work on the site in question, but did state that “there is
Chattanooga shale in the drainage basin there, so the streams, the rain water, you know,
certainly runs over Chattanooga shale; but I have no way of knowing what it was like
before they built the wetland” [Transcript Vol. 1, Doc. 76, pp. 189-191].
Jeff Duke, an environmental consultant with a Master’s in Aquatic Ecology
from the University of Alabama, acting as a defense expert, testified that he visited the site
in question multiple times, including visits in 2011, 2014, 2015, and 2019 [Transcript
Vol. 2, Doc. 77, pp. 83-84].
Mr. Duke testified that when determining whether an area qualifies as a
wetland, one must look at multiple factors, such as examining the soil, the hydrology, and
what types of plants are present. He stated that the existence of a pond (open water) does
not preclude a finding of wetland, but instead you consider whether the pond has obligate
plants, how deep the water is, as well as taking into account that water depth in the area
will vary over the course of the year, with water tending to be deeper in wetland areas
during winter and spring, and the area tending to dry up in the summer and fall [Transcript
Vol. 2, Doc. 77, pp. 91-92].
Mr. Duke testified that the pH level of a wetland can vary greatly, even over
the course of the same day. Mr. Duke described several natural factors which can affect
the pH level of water, noting that pH tends to be lower in the morning, but tends to increase
after the sun rises because of photosynthesis of the plant life. If there has been recent
rainfall, that can also affect pH, as can temperature [Transcript Vol. 2, Doc. 77, pp. 93-94].
Mr. Duke testified that his measurements of the size of the wetland mitigation
area were in excess of the stipulated amount of 1.01 wetland acres, with his most recent
calculations, in 2019, measuring 2.11 acres of wetland mitigation [Transcript Vol. 2,
Doc. 77, pp. 98-100].
Mr. Duke testified that on February 3rd and 4th of 2014, he visited the area
for approximately four hours each day and took pH readings both in the mitigation area as
well as upstream of the construction site and mitigation site. Sample 7, taken from a stream
flowing into a wetland which was not attached to the mitigation site had a pH of 3.86.
The stream in question was upstream of the highway construction area and, to Mr. Duke’s
knowledge, had no construction associated with it [Transcript Vol. 2, Doc. 77,
Mr. Duke’s expert report states that the pH readings taken within the wetland
mitigation site on February 3, 2014, ranged from 5.73 to 5.91, but the readings were taken
after a “rain event.” The February 4, 2014, readings ranged from 6.11 to 6.22 [Def. Ex. 13
at p. 8].
Mr. Duke took additional pH readings on July 16, 2015, and May 7, 2019,
again both in the mitigation area and in areas upstream. The 2015 pH readings within the
mitigation area were 4.37 and 4.84, while the upstream readings ranged from 4.93 through
4.98. The 2019 pH reading within the mitigation area was 6.55, while the upstream
readings ranged from 4.82 through 5.74 [Def. Ex. 13 at pp. 8-11].
Mr. Duke described the geographical relationship between the wetland
mitigation area and the area where the road construction was taking place. He testified that
the wetland mitigation site is upstream of the road construction area, such that any runoff
from the road construction site could not have flowed into the wetland mitigation site, but
rather would have flowed into areas which are downstream of the wetland mitigation site
[Transcript Vol. 2, Doc. 77, pp. 105].
On cross-examination, Mr. Duke elaborated that the pyrite encapsulation
sites (areas where pyritic material excavated during road construction was stored and later
buried) was approximately half a mile downhill of the wetland mitigation area. Thus, it
would be physically impossible for runoff from the road construction site, which might
have been tainted by pyritic material excavated during the construction, to flow into the
mitigation site because water does not flow uphill [Transcript Vol 2, Doc. 77, pp. 127-128].
The report of plaintiffs’ expert, Barry Sulkin, states that he performed a site
visit to the wetland mitigation area on February 2, 2006, and found acidic pH levels within
the mitigation area, including readings of 3.4 and 5.4 [Def. Ex. 19 at p. 5].
Mr. Sulkin visited the mitigation area again on November 7, 2013, and found
pH values in and around the mitigation area ranging from 5.31 to 6.12. [Def. Ex. 19 at
On rebuttal, Mr. Sulkin testified that, other than the pH level of the water and
the acreage of wetland mitigation actually created, he agreed that the land in the mitigation
area counted as a wetland, calling the area a “good wetland” [Transcript Vol. 3, Doc. 78,
The sworn declaration of E. Joseph Sanders, who served as TDEC’s General
Counsel during the time period at issue in this litigation, establishes that TDEC both helped
to create the template for the Notice of Land Use Restriction, and approved the actual
Notice of Land Use Restriction at issue in this case as being in compliance with the
Certification [Def. Ex. 17 at ¶ 6].
Mr. Sanders’s declaration elaborates that the Notice of Land Use Restriction
at issue in this case served as the model for TDEC’s current template on Land Use
Restrictions, and that the current version is substantially similar to the version at issue in
this case [Def. Ex. 17 at ¶ 6].
Conclusions of Law
Collateral Attack of the Certification
In the Order [Doc. 36] ruling on defendant’s motion to dismiss, the Court
held that the CWA does not provide a private cause of action against regulators for
violating procedural regulations. Askins v. Ohio Dept. of Agriculture, 809 F.3d 868, 874,
876 (6th Cir. 2016). Rather, the citizen-suit provision of the CWA is meant to provide a
private cause of action against persons allegedly in violation of an effluent standard or
limitation. 33 U.S.C. § 1365(a). This does not include the ability to sue persons for alleged
violations based on the underlying premise that their certifications or permits were
modified in a procedurally invalid way.
That same Order [Doc. 36] noted that this Court has previously not allowed
plaintiffs to sue defendants that were complying with state permits whose underlying
legality was questioned. See Nat’l Parks Conservation Ass’n, Inc., v. Tennessee Valley
Authority, 175 F.Supp.2d 1071, 1078 (“[I]t is clear that plaintiff is not alleging that
[defendant] violated any of the terms of the TDEC permits, but rather is attacking the
legality of the permits issued by the Tennessee state enforcement agency. As such,
plaintiff’s lawsuit is in effect a collateral attack on a facially valid permit issued by the state
The Order [Doc. 36] explained that the instant case differs from National
Parks Conservation Ass’n, because not only are plaintiffs alleging that the modifications to
the Certification were invalid, but they also allege that, under all possible iterations of the
§ 401 Certification — the original version, the modified version as-according-to-plaintiffs,
and the modified version as-according-to-defendant — defendant is in violation of the
Certification’s terms and conditions.
The Order [Doc. 36] held that to the extent that the parties disagree about the
processes and procedures that TDEC took to modify defendant’s Certification, those claims
cannot be brought under the citizen-suit provision of the CWA. However, to the extent
that the parties disagree, not about the processes or procedures, but about the resulting
terms of those modifications, the Court will evaluate those claims to the extent that they
allege violations of defendant’s § 401 certification, as § 1365 provides a cause of action
for this claim.
That ruling remains in place. In their post-trial brief, plaintiffs made several
collateral attacks against the process and procedures TDEC followed with respect to the
Certification and its modification, including, but not limited to: challenging the authority
of Mr. Lee to modify the Certification; the form and language (or lack of language) TDEC,
through Mr. Lee, used to authorize the Certification modification; whether public notice
was required and/or given for the various actions taken with respect to the Certification;
whether TDEC used the proper regulations and procedures with respect to the Certification
and its modification; and the form and language of the Notice of Land Use Restriction
(which was created and approved by TDEC). Such collateral attacks of the Certification
are not allowed under the citizen-suit provision of the CWA, and plaintiffs’ claims along
these lines are statutorily barred.
Certification’s Wetland Mitigation Requirement
Plaintiffs contend that the defendant violated the Certification by failing to
meet the Certification’s wetland mitigation requirement.
Generally, the interpretation of a legal document is a matter of law for the
Court to decide. See United States v. Donovan, 348 F.3d 509, 512 (6th Cir. 2013) (citing
Parrett v. Am. Ship Bldg. Co., 990 F.2d 854, 858 (6th Cir. 1993)). To interpret the
certification, the Court will use “the same principles of interpretation that apply to contracts
and other legal documents.” Sierra Club v. Louisville Gas & Elec. Co., No. 3:14-cv-391,
2015 WL 5105216, at *4 (W.D. Ky. Aug. 31, 2015) (citing Nat. Res. Def. Council, Inc. v.
Cty. of Los Angeles, 725 F.3d 1194, 1204–05 (9th Cir. 2013)); see also Deschutes River
All. v. Portland Gen. Elec. Co., 331 F. Supp. 3d 1187, 1198 (D. Or. 2018) (“The Court
interprets the Certification ‘like any other contract.’” (quoting NRDC, 725 F.3d at 1204));
Tenn. Clean Water Network v. Tenn. Valley Auth., 905 F.3d 436, 446 (6th Cir. 2018) (citing
Piney Run Pres. Ass’n v. Cty. Comm’rs of Carroll Cty., 268 F.3d 255, 269 (4th Cir. 2001))
(interpreting multiple provisions of a Clean Water Act National Pollutant Discharge
Elimination System permit issued by the Environmental Protection Agency using
principles of contract interpretation).
Accordingly, if the language of the certification “is plain and capable of legal
construction, the language alone must determine the [certification]’s meaning.” Piney Run
Ass’n, 268 F.3d at 270. If, however, language of the certification is ambiguous, the Court
will consider extrinsic evidence in interpreting its terms. Id. “When there is ambiguity in
a permit, courts may look to extrinsic evidence ‘to determine the intent of the permitting
authority.’” Louisville Gas & Elec., 2015 WL 5105216, at *5 (quoting NRDC, 725 F.3d
The Court finds that a § 401 certification is a form of TDEC regulation. See
Louisville Gas & Elec., 2015 WL 5105216, at *5 (finding that a NPDES permit was a form
When interpreting an agency regulation, courts will generally give
deference to an agency’s interpretation of its own regulations. Auer v. Robbins, 519 U.S.
452, 461–62 (1997). Auer deference is “undoubtedly inappropriate, [however], where the
agency’s interpretation is ‘plainly erroneous or inconsistent with the regulation,’”
Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (quoting id. at 461),
or “when there is reason to suspect that the agency’s interpretation ‘does not reflect the
agency’s fair and considered judgment on the matter in question.’” Id. (quoting Auer, 519
U.S. at 462); see also Kentucky Waterways All. V. Johnson, 540 F.3d 466, 474–75 (6th Cir.
2008). The latter situation arises when it appears that the interpretation is nothing more
than a “convenient litigating position or a post hoc rationalization advanced by an agency
seeking to defend past agency action against attack.” Christopher, 567 U.S. at 155
The Court, in its Order ruling on summary judgment, declined, at that time,
to grant Auer deference to Mr. Lee’s interpretation of the August 28, 1997 letter [Doc. 54
pp. 14-15]. Instead, the Court held that “the question of the intent of the letter with respect
to the acreage requirement, which greatly depends on the reliability and credibility of
Mr. Lee’s later-in-time declarations, is a factual issue to be resolved at trial” [Doc. 54
Having had the opportunity to observe Mr. Lee’s testimony at trial on this
issue, the Court finds Mr. Lee’s testimony credible, and accepts his explanation that the
August 28, 1997 letter was intended to serve as an approval of TDOT’s request to modify
the Certification’s wetland mitigation acreage requirement to 1.01 acres. See Findings of
Facts ¶¶ 10-11.
Plaintiffs argue that the various litigation positions taken by TDOT and
TDEC in this matter are contradictory, and call into question Mr. Lee’s credibility.
Plaintiffs point to TDEC’s letter dated February 14, 2014, which acknowledges that TDOT
only created 1.01 acres of wetland, but goes on to explain that TDEC exercised its
enforcement discretion not to enforce the Certification’s wetland mitigation requirement
[Pltf. Ex. 4 at p. 2]. However, there is no indication that Mr. Lee was consulted in the
drafting of the February 14, 2014, letter. Nor is there any question that Mr. Lee’s
August 28, 1997 letter fails to specifically state that the modification of the Certification
was approved, which the author of the February 14, 2014, letter presumably recognized.
Now that the matter is in litigation, the ambiguity of the August 28, 1997 letter allows for
the introduction of extrinsic evidence to interpret the letter’s intent, as the Court discussed
above. And having considered that evidence, and observed Mr. Lee at trial, the Court
found his testimony credible. Accordingly, the Court rejects plaintiffs’ arguments.
Defendant obtained the Certification, as required by 33 U.S.C. § 1341(a)(1).
The § 401 Certification initially required TDOT to create 3.0 acres of mitigation wetland
in place of the wetland filled in by road construction [Def. Exs. 3 and 4].
“[U]pon request by the permittee or, as a result of reevaluation of the
circumstances and conditions of a permit, the district engineer may determine that the
public interest requires a modification of the terms and conditions of the permit . . .”
33 C.F.R. § 325.7(b). TDOT requested a modification of the Certification to reduce the
wetland mitigation requirement to 1.01 acres based on the discovery of pyritic material
within the mitigation site.
TDEC, acting through Mr. Lee, approved the requested
modification, accepting the 1.01 acres of wetland mitigation created by TDOT to make up
for the 0.9 acre of wetland lost to road construction. See Findings of Fact ¶¶ 10 – 12.
Tennessee regulations allow the Commissioner to authorize a permit
modification without public notice if that modification will not materially change water
quality aspects of the project or will result in an improvement of water quality. Tenn.
Comp. R. & Regs. 1200-4-7-.04(4)(a)(3).4 The regulations also impose a “no net loss”
requirement, meaning that the Commissioner cannot authorize § 401 certifications
unless any lost resource value associated with the project is offset by some sort of
mitigation sufficient to result in no net loss of resource value. Tenn. Comp. R. & Regs.
1200-4-7-.04(6)(c).5 In this instance, there was no net loss because of the 1.01 acres of
created wetland mitigation offset the 0.9 acres of wetland area lost to road construction.
See Findings of Fact ¶ 12.
Thus, the Court finds as a matter of law that the Certification was modified
to reduce the wetland mitigation requirement to 1.01 acres of wetland mitigation. The
Court further finds as a matter of law that TDEC complied with that requirement by
creating 1.01 acres of wetland mitigation. See Findings of Fact ¶ 17.
This regulation was later renumbered to Tenn. Comp. R & Regs. 0400-40-07.04(4)(a)(3).
This regulation was later renumbered to Tenn. Comp. R & Regs. 0400-40-07-.04(6)(c).
To the extent that plaintiffs argue that TDEC failed to follow proper
procedures or regulations in the modification of the Certification, the Court holds as a
matter of law that such arguments are a collateral attack on the certification process which
is not authorized under the citizen-suit provision of the CWA.
pH Level of the Water
Plaintiffs contend that the acidity of the water found in the wetland mitigation
area is such that the wetlands fail to meet Tennessee’s water quality standards, as required
by the Certification.
Tennessee regulations governing water quality require that wetlands have a
pH level in the range of 6.5 to 9.0 and streams have a pH level of 6.0 to 9.0. Tenn. Comp.
R & Regs. 0400-40-03-.03(3)(b).6
Tennessee regulations also provide that “[w]here naturally formed conditions
(e.g. geologic formations) or background water quality conditions are substantial
impediments to attainment of the water quality standards, these natural or background
conditions shall be taken into consideration in establishing any effluent limitations or
restriction on discharges to such waters.” Tenn. Comp. R & Regs. 0400-40-03-.05(7).
The regulations further state that “[f]or purposes of water quality assessment,
with the exception of pathogens, exceedances of water quality standards caused by natural
As the alleged water quality violation is an ongoing condition, and the Certification
merely requires compliance with Tennessee’s water quality standards, which have evolved over
time, as opposed to some specific pH criteria, the Court looks to the current version of the water
quality regulations for guidance.
conditions will not be considered the condition of pollution impairment. Examples of
natural conditions include alterations caused by beaver activity, non-construction related
rockslides of pyritic materials, and groundwater with naturally elevated metals or low
dissolved oxygen levels.” Tenn. Comp. R & Regs. 0400-40-03-.05(7).
The testimony at trial established that the area around the mitigation area
rests on the Chattanooga Shale Formation, which is known to contain pyritic material that
can lower the pH of water. Mr. Hughes observed signs of pyritic material in the tributaries
flowing into the mitigation site, specifically “staining that would indicate oxidation of
pyrite.” Mr. Hughes confirmed that the existence of the pyritic material in the tributaries
flowing into the mitigation site was a naturally occurring condition. See Findings of Fact
¶¶ 18 – 20.
The testimony established that it would have been impossible for runoff from
the construction project to contaminate the mitigation area, because the mitigation area is
uphill from road construction project and water does not run uphill. See Findings of Fact
Based on the above, the Court finds as a matter of law that the acidic pH level
of the water in and around the wetland mitigation site is caused by a naturally occurring
condition, and thus is excepted from the 6.5 to 9.0 water quality standard for wetlands and
the 6.0 to 9.0 standard for streams. Accordingly, the Court finds as a matter of law that
TDOT is not in violation of the pH water quality standards, and thus not in violation of a
condition of the Certification.
Notice of Land Use Restrictions
Plaintiffs contend that the language used in the deed restriction imposed by
the Notice of Land Use Restrictions applicable to the wetland mitigation area does not
comply with the Certification and TDEC regulations.
The evidence before the Court established that TDEC both helped to create
the Notice of Land Use Restriction and approved the final document, including the
language used in the document, and that the Notice of Land Use Restriction at issue in the
case served as the model for TDEC’s current template on Land Use Restrictions. See
Findings of Fact ¶¶ 34, 35.
Accordingly, the Court finds as a matter of law that the Notice of Land Use
Restriction complies with the Certification.
To the extent that plaintiffs challenge the process and procedures TDEC used
in creating and approving the Notice of Land Use Restriction, or the language contained in
the same, the Court holds as a matter of law that such arguments are a collateral attack on
the certification process which is not authorized under the citizen-suit provision of the
Plaintiffs’ objection [Doc. 64] is OVERRULED. Furthermore, based on the
findings of fact and conclusions of law as stated above, the Court FINDS in favor of
defendant on all claims. Accordingly, the Court will DISMISS plaintiffs’ claims and will
DIRECT the Clerk of the Court to CLOSE this case.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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