Foster et al v. United States Environmental Protection Agency et al

Filing 237

MEMORANDUM OPINION AND ORDER granting in part and denying in part defendants' 181 MOTION for Summary Judgment; granting said motion with respect to plaintiffs' procedural due process claim, plaintiffs' First Amendment retaliat ion claim, and reasonableness of the ACO pertaining to RR4 only; and otherwise denying said motion; granting in part and denying in part plaintiffs' 183 MOTION for Summary Judgment; granting said motion with respect to the reasonableness of the ACO pertaining to RR1, RR2, and RR3; and otherwise denying said motion. Signed by Judge John T. Copenhaver, Jr. on 8/14/2017. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RON FOSTER, and FOSTER
FARMS, LLC, and MARKETING
& PLANNING SPECALISTS
LIMITED PARTNERSHIP,
Plaintiffs,
v.

Civil Action No. 14-16744

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, and SCOTT
PRUITT, in his official capacity
as Administrator,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion for summary judgment filed
February 21, 2017, by the United States Environmental Protection
Agency (“EPA”) and Scott Pruitt, in his official capacity as
Administrator (collectively “defendants”) and the motion for
summary judgment as to defendants’ counterclaim, filed on
February 21, 2017, by Ron Foster (“Foster”), Foster Farms, LLC,
(“Foster Farms”) and Marketing & Planning Specialists Limited
Partnership (“Marketing & Planning Specialists”) (collectively
“plaintiffs”).

This case presents a challenge by plaintiffs to

a Clean Water Act (“CWA”) Administrative Compliance Order
(“ACO”) under the Administrative Procedures Act and defendants’

1

counterclaim which seeks injunctive relief and a civil penalty
under the CWA.
I.

Background

In September 2009, Ron Foster, general partner and
shareholder member of Foster Farms and Marketing & Planning
Specialists, purchased two tracts of property in Wood County,
West Virginia, north of Lubeck, West Virginia, known as “Neal
Run Crossing,” (hereinafter “Neal Run Crossing”).

Foster

purchased Neal Run Crossing out of the bankruptcy estate of the
Endurance Group, LLC (“Endurance”) and assigned one parcel to
Foster Farms and the other to Marketing & Planning Specialists.
2d Am. Comp. ¶ 8(d)-(f); Defs.’ Mem. Ex. 2; Administrative
Record (“AR”) 47 at AR 000384.
In 2009, when Neal Run Crossing was owned by
Endurance, a stream was relocated on a portion of the property
known as Pad 1 (being one of five such pads) without a Section
404 permit to do so, in violation of the Clean Water Act, 33
U.S.C § 1251 et seq.

2d Am. Comp. ¶¶ 14, 16-17.

Endurance

declared bankruptcy before the EPA could begin enforcement
proceedings and the bankruptcy court permitted the sale of the
Neal Run Crossing Property to Foster clear of Clean Water Act
liability as long as Foster agreed to spend $50,000 to restore
the violations committed by Endurance.
2

Pls.’ Mem. Ex. 9 (Deeds

with Sale Order dated October 29, 2009).

A restoration plan was

eventually agreed on by the EPA and Foster, and was completed in
2011.

Defs.’ Mem. Ex. 10 (Lutte Decl.) at ¶ 13.
On September 9, 2010, EPA inspectors Stephanie

Andreescu and Todd Lutte visited the Neal Run Crossing property.
Defs.’ Mem. Ex. 4 (Andreescu Decl.) ¶¶ 11, 13; Lutte Decl. at ¶
14.

According to defendants, their visit related to complaints

about flooding on neighbors’ land caused by Endurance’s movement
of the Pad 1 stream.

Defs.’ Mem. in Supp. of Mot. for Summary

Judgment (“Defs.’ Mem.”) at 7; Andreescu Decl. at ¶¶ 15-16;
Lutte Decl. ¶¶ 15-16.

During this visit, they saw a billboard

that advertised the sale of portions of the Neal Run Crossing
property.

Defs.’ Mem. at 7; Andreescu Decl. at ¶¶ 15-16; Lutte

Decl. ¶¶ 15-16; Andreescu Decl. at Attach. C.

The sign included

a topographical map, which indicated that fill had or would be
placed on streams in Pad 4, which is the focal point of this
dispute.

Defs.’ Mem. at 7; Andreescu Decl. at ¶¶ 15-16; Lutte

Decl. ¶¶ 15-16; Andreescu Decl. at Attach. C.1

1

In their memorandum in support of their motion for summary
judgment on defendants’ counterclaim, plaintiffs seem to infer
that Andreescu and Lutte had an ulterior motive for visiting
Neal Run Crossing on September 9, 2010, and plaintiffs attempt
to discredit multiple facts contained in Andreescu’s report of
this visit. See Pls.’ Mem. at 7.
3

The Neal Run Crossing property has been divided into
five “pads” for development purposes.

Stipulation ¶ 15.

The

alleged CWA violations at issue in this case occurred on Pad 4,
which is also sometimes referred to as “the Site.”

Id. at ¶ 4.

Foster Farms and Marketing and Planning Specialists each own
part of Pad 4.2

Id. at ¶ 16.

Before plaintiffs developed Pad 4,

four streams, known as “relevant reaches,” RR1, RR2, RR3, and
RR4 existed on the Site.

Defs.’ Mem. Ex. 25; Defs.’ Ex. 20 at

AR0000483-0484; Dow Decl. ¶ 20.
and RR3 flowed into RR4.

Before being filled, RR1, RR2,

Defs.’ Mem. Ex. 20 at AR 0000483.

As

RR4 exited the western boundary of the Site, its path crossed a
neighbor’s hayfield and then joined the First Unnamed Tributary
to Neal Run (also known as the Blackwell Creek or Blackwell
Tributary).

Ex. 7 to Defs.’ Mem. (Decl. of Stokely) ¶ 17;

Defs.’ Ex. 28 (Carr Dep.) 12, 24, 28-29; Defs.’ Ex. 9 (Moore
Dep.) 19, 22, 33-34.
The First Unnamed Tributary joins the Second Unnamed
Tributary to Neal Run.

Stipulation ¶ 25.

The Second Unnamed

Tributary is a relatively permanent water, which flows into Neal
Run.

Id. at ¶ 26.

Neal Run is a relatively permanent water,

Although at one point, Foster appeared to deny that Foster Farms
owned the Site, plaintiffs, in the briefing for the motions for
summary judgment, do not contest that Foster Farms and Marketing
& Planning Specialists each own part of Pad 4.
2

4

which flows into the Little Kanawha River.

Id. at ¶ 27.

The

Little Kanawha River flows into the Ohio River at Parkersburg,
West Virginia.

Id.

The portion of Neal Run, 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 as a “navigable water of the United States” for
purposes of Section 10 of the Rivers and Harbors Act of 1899.
Id. at ¶ 29.

The approximate distance from the confluence of

RR4 and the First Unnamed Tributary of Neal Run to the
designated navigable portion of Neal Run is 3.1 miles.

Stokely

Decl. ¶ 21.
This case revolves around whether RR1, RR2, RR3, and
RR4 are “waters of the United States” under the CWA.

Defendants

assert that RR4 is a relatively permanent water as defined in
the plurality opinion of four Justices in Rapanos v. U.S., and
that RR1, RR2, RR3, and RR4 have a significant nexus with a
navigable water and thus meet the test contained in Justice
Kennedy’s concurring opinion in Rapanos.

547 U.S. 715 (2006).

Plaintiffs dispute these assertions.
Andreescu and Lutte approached the Site through a
field on adjoining property next to Pad 4 and discovered a
5

stream channel that had been partially buried with dirt and
vegetation.

Defs.’ Mem. at 7-8; Andreescu Decl. at ¶ 18; Lutte

Decl. ¶¶ 17, 19.

Andreescu and Lutte observed that the portion

of the stream that was not buried had a bed, bank, an ordinary
high water mark, and “other attributes associated with the
regular presence of flowing water,” of which Andreescu took
photos.

Defs.’ Mem. at 8; Andreescu Decl. at ¶¶ 19, 21; Lutte

Decl. ¶ 17; Andreescu Decl. at Attach. D, E.
A man, who was later identified as Bryan Scott Moore,
approached the inspectors while they were observing the Site and
stated that a stream previously flowed on the Site.

Defs.’ Mem.

at 8; Pls.’ Mem. at 8; Andreescu Decl. at ¶¶ 19, 21; Lutte Decl.
¶ 17.

Moore attempted to take Andreescu and Lutte to the source

of the stream, but they were unable to locate it due to thick
vegetation.

Defs.’ Mem. at 8; Andreescu Decl. at ¶ 20.

When

they returned to the Site, the inspectors encountered men with a
bulldozer, one of whom they later learned was David Walters of
Walters Excavating.
Lutte Decl. at ¶ 19.

Defs.’ Mem. at 8; Andreescu Decl. at ¶ 21;
The men indicated that they had filled the

stream and Walters stated that he had not obtained a permit for
the work.
99-100.

Lutte Decl. ¶ 19; Defs.’ Mem. Ex. 8 (Walters Dep.) at

The men from Walters Excavating were preparing “the

6

area for the construction of a storm water control cell.”

Pls.’

Mem. at 8.
Lutte’s declaration states that while he does not
specifically remember what he said to Walters, his “usual
practice would be to inform him of applicable law and the fact
that a permit may be required.”

Lutte Decl. at ¶ 19.

Walters

testified that Lutte or Andreescu told him that they “may be in
violation” for filling in the stream and that they needed a 404
permit for the work done.

Defs.’ Ex. 27 (David Walters Dep.) at

106.
When leaving the Site, Andreescu observed the stream
channel exiting Pad 4 and continuing towards a hayfield.
Andreescu Decl. ¶ 22.

Andreescu and Lutte walked across the

hayfield and noted that the stream channel lost its bed, bank,
and ordinary high water mark in the middle of the field.

Id.

A

defined bed, bank, and ordinary high water mark re-formed on the
western side of the field and joined the First Unnamed Tributary
to Neal Run.

Id.

After Lutte and Andreescu left, David Walters informed
Foster of his conversation with them.

Id. at 107.

Foster and

Walters both spoke with Dan Metheny of Fox Engineering, Foster’s
engineering consultant for the project.

Pls.’ Mem. at 9;

Walters Dep. at 107-08; September 9, 2010 email between Foster
7

and Metheny (Exhibit 28 to Pls.’ Mem.).

Metheny stated that he

checked the plans and did not believe a permit was required at
the Pad 4 location.

Pls.’ Mem. at 9; Sept. 9 email between

Foster and Metheny.

After pausing operations for several days,

Marketing & Planning Specialists continued the construction
operations.

Pls.’ Mem. at 9; Defs.’ Mem. at 8; Walters Dep. at

74:18-87:14; 92:4-93:8.

Foster’s contractors placed fill in

three additional streams (RR1, RR2, and RR3) on the Site and
built a sediment pond.

Defs.’ Mem. at 8, Walters Dep. at 74:18-

87:14; 92:4-93:8; Andreescu Decl. ¶ 32; Lutte Decl. ¶ 22.
In late fall 2010, the EPA sent information requests
pursuant to Section 308 of the Clean Water Act to Foster Farms,
Walters Excavating, and Fox Engineering in order to determine
whether and to what extent Clean Water Act violations occurred
in the Pad 4 area.

Andreescu Decl. ¶ 27.

requests were provided in December 2010.

Responses to the
Id.

EPA officials

also conducted two additional Site visits to the Pad 4 area in
May 2011 and September 2011.

Id. at ¶¶ 32, 35.

In March 2011, plaintiffs commissioned a delineation
report, which was conducted by Jacob White of Randolph
Engineering and was submitted to the United States Army Corps of
Engineers (“the Corps”) for input into their jurisdictional
determination (“JD”).

Pls.’ Mem. at 10; Andreescu Decl. Attach.
8

F (“Randolph Report”), AR 61.

White determined that the Pad 4

site likely contained jurisdictional waters.
USEPA000418.

Id. at

White’s report was then forwarded to the EPA.

Defs.’ Mem. at 9.
Between October and December 2011, the EPA and the
Corps discussed whether plaintiffs’ discharges would be
addressed through an EPA enforcement action or an after-the-fact
permit issued by the Corps.
37; Lutte Decl. ¶ 25.

Defs.’ Mem. at 9; Andreescu Decl. ¶

Defendants contend that while the EPA

began drafting the ACO in December 2011, the EPA was still
“urg[ing] the Corps to take lead agency status,” although the
Corps ultimately decided not to do so.

Defs.’ Mem. at 9;

Andreescu Decl. ¶ 36; Lutte Decl. ¶ 25.
During this time, Pam Lazos of the EPA represented to
Foster that the Corps refused to issue a permit because the
violations at the Site were so “egregious.”

Pls.’ Mem. at 11;

Pls.’ Mem. Ex. 32 (October 18, 2011 email from Lazos to Foster).
In an email sent in March, 2012, Richard Hemann, who worked for
the Corps, informed Andreescu that the Corps “did not wish to
verify the delineation if the EPA will not consider improvements
to unauthorized work as compensatory mitigation for other
unauthorized work.”

Pls.’ Mem. at 12-13; Pls.’ Mem. Ex. 37.

9

On January 3, 2012, the EPA informed Foster that the
case was proceeding as an EPA enforcement action.
at 9; Defs.’ Ex. 17 (AR 84) at AR0000632.

Defs.’ Mem.

On January 24, 2012,

the EPA issued an ACO to Foster Farms stating that there had
been unauthorized discharges of fill materials to waters of the
United States in Pad 4.

Defs.’ Mem. at 9; Andreescu Decl. ¶ 37

& Attach. K; Lutte Decl. ¶ 26.

Although the EPA had already

assumed lead agency status, the Corps finished its analysis of
the Site, which defendants state was at the request of Foster.
Defs.’ Mem. at 10; Andreescu Decl. Attach O.

The Corps

concluded that the four streams on Pad 4 that were filled by
plaintiffs were covered by the CWA, and informed plaintiffs of
this in a February 22, 2012 letter.

Defs.’ Mem. at 10;

Andreescu Decl. Attach. O.
Because the Corps’ jurisdictional analysis provided an
administrative appeal process, plaintiffs’ appealed the Corps’
jurisdictional determination.

Pls.’ Mem. at 14.

The EPA issued

a letter on April 5, 2012, which stated that due to the EPA’s
issuance of the ACO on January 24, 2012, it was “superseding the
Corps’ authority to verify the jurisdictional status” at the
Site, and reaffirmed its findings that RR1, RR2, RR3, and RR4
were jurisdictional waters.
Letter).

Pls.’ Mem. Ex. 44 (April 5, 2012

The Corps’ denied plaintiffs’ appeal because the EPA

10

had assumed the role of lead agency for the Site.

See Pls.’

Mem. Ex. 45 (Letter from Margaret Burcham, Brigadier General to
Foster); see also 33 C.F.R. § 331.11 (stating that a
jurisdictional determination by the Corps cannot be appealed
when the EPA has assumed lead agency status).
not permit an appeal.

The EPA’s ACO did

On May 8, 2014, Foster received a letter

from the Department of Justice proposing plaintiffs pay a
$414,000 penalty and remediate the Site, or face an enforcement
litigation and more penalties.
II.

Pls.’ Mem. Ex. 57.

Governing Standard

Summary judgment is appropriate only “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).

“Material” facts are those necessary to

establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010) (same).

A “genuine” dispute of

material fact exists if, in viewing the record and all
reasonable inferences drawn therefrom in a light most favorable
to the non-moving party, a reasonable fact-finder could return a
verdict for the non-moving party.

11

Anderson, 477 U.S. at 248.

The moving party has the initial burden of showing -“that is, pointing out to the district court -- that there is an
absence of evidence to support the non-moving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the

moving party satisfies this burden, then the non-moving party
must set forth specific facts, admissible in evidence, that
demonstrate the existence of a genuine issue of material fact
for trial.

See id. at 322-23; Fed. R. Civ. P. 56(c), (e).

Inferences that are “drawn from the underlying
facts

. . . must be viewed in the light most favorable to the

party opposing the motion.”
U.S. 654, 655 (1962).

United States v. Diebold, Inc., 369

A party is entitled to summary judgment

if the record as a whole could not lead a rational trier of fact
to find for the non-moving party.
820, 823 (4th Cir. 1991).

Williams v. Griffin, 952 F.2d

Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.

Anderson, 477 U.S. at 248.
III.
A.

Discussion

The Clean Water Act

In 1972, Congress passed the CWA “to restore and
maintain the chemical, physical, and biological integrity of the
12

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).

The Supreme Court has interpreted

the term “navigable waters” on multiple occasions, most recently
in Rapanos, 547 U.S. 715.

In Rapanos, no majority of the Court

agreed as to how to define navigable waters.
The plurality opinion of four Justices, authored by
Justice Scalia, limited CWA jurisdiction to traditional
navigable waters, waters connected to traditional navigable
waters that have a “relatively permanent flow,” and wetlands
that have a “continuous surface connection” to relatively
permanent waters.

Id. at 742.

Justice Kennedy concurred in the

judgment but stated that “navigable waters” extended 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.”

Id. at 780 (Kennedy, J., concurring)

(citing Sold Waste Agency of Northern Cook Cnty. V. Army Corps
of Engineers, (“SWANCC”) 531 U.S. 159 (2001).

The four

dissenting Justices concluded that “waters of the United States”
included all tributaries and wetlands that satisfied either
definition.

Id. at 810.

13

Circuit courts are divided on how to interpret
navigable waters post-Rapanos.

The 2008 Waters of the United

States Guidance issued by the Corps and EPA in light of Rapanos
states that there is CWA jurisdiction if either the plurality’s
relatively permanent waters test or Justice Kennedy’s
significant nexus test is satisfied.

See Pls.’ Ex. 6 (Clean

Water Act Jurisdiction Following the U.S. Supreme Court’s
Decision in Rapanos) (“2008 Waters of the United States
Guidance”) at 1.

The United States Courts of Appeals for the

First, Third, and Eighth Circuits have found that a water is
subject to the CWA if it meets either the plurality test or
Justice Kennedy’s test.

See United States v. Donovan, 661 F.3d

174 (3d. Cir. 2011); United States v. Bailey, 571 F.3d 791, 797799 (8th Cir. 2009); United States v. Johnson, 467 F.3d 56 (1st
Cir. 2006).

The United States Courts of Appeals for the

Seventh, Ninth, and Eleventh Circuits have determined that a
water is subject to the CWA if it meets Justice Kennedy’s test
only.

See Northern California River Watch v. City of

Healdsburg, 496 F.3d 993 (9th Cir. 2007) cert. denied, 552 U.S.
1180 (2008); U.S. v. Robinson, 505 F.3d 1208 (11th Cir. 2007);
United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir.
2006) (per curiam).

In Precon Development Corporation v. U.S.

Army Corps of Eng’rs. (“Precon I”, 633 F.3d 278 (4th Cir. 2011),
because the parties agreed that Justice Kennedy’s “significant
14

nexus” test governed, the Fourth Circuit did not address “the
issue of whether the plurality’s ‘continuous surface connection’
test provides an alternate ground upon which CWA jurisdiction
can be established.”

Id. at 288.

In Deerfield Plantation Phase

II-B Property Owners Association v. U.S. Army Corps of Engineers
(“Precon II”), 501 Fed. App’x 268, 275 (4th Cir. 2012), our
court of appeals found that the Corps did not err in finding
that there was no CWA jurisdiction under either the plurality’s
or Justice Kennedy’s Rapanos test.
Defendants argue that because three circuits have
found that either test satisfies jurisdiction under the CWA, and
because the Fourth Circuit has adopted the parties’ agreement in
Precon I that a water that satisfies Justice Kennedy’s test is a
“water of the United States,” and, according to defendants, has
implied it would accept the plurality’s test in Precon II, a
finding that either test is met in this case satisfies
jurisdiction under the CWA.

Pls.’ Mem. at 13-14.

Plaintiffs argue that only the Rapanos plurality’s
relative permanence test is applicable for a number of reasons.
First, plaintiffs state that although our court of appeals
applied the significant nexus test in Precon I, and applied both
tests in Precon II, it did so only because the parties agreed
that one or both tests were controlling.
15

Pls.’ Mem. at 24

(citing Precon I, 633 F.3d at 288 and Precon II, 501 Fed. App’x
at 273).

Plaintiffs contend that they do not agree with

defendants as to which test should govern and maintain that “the
plurality opinion’s ‘relatively permanent water’ standard should
apply because the Pad 4 area is not a wetland and this test
provides more readily identifiable criteria for ascertaining
whether CWA jurisdiction exists.”

Pls.’ Mem. at 24.

However,

the significant nexus test framed by Justice Kennedy is not
limited solely to wetlands.

In Rapanos, Justice Kennedy did not

confine the significant nexus test to wetlands, stating that “a
water or wetland” that “possesses a ‘significant nexus’” to
navigable waters is a jurisdictional water under the CWA.

547

U.S. at 759 (citing SWANCC, 531 U.S. at 167, 172) (emphasis
added); see also 547 U.S. at 767 (“[I]n some instances . . . the
connection between a nonnavigable water or wetland and a
navigable water may be so close, or potentially so close, that
the Corps may deem the water or wetland a ‘navigable water’
under the Act.

In other instances, . . . there may be little or

no connection.”) (Kennedy, J., concurring) (emphasis added).
Accordingly, the court finds plaintiffs’ argument that the
significant nexus test should be disregarded is without merit.
For the first time in their reply to defendants’
response to plaintiffs’ motion for summary judgment on the

16

counterclaim, plaintiffs’ assert that “Although Precon [II]
holds that satisfaction of either Rapanos test is
sufficient, . . . Precon [II] is at odds with U.S. Supreme Court
precedent for the proper application of split plurality
opinions.”

Pls. Reply at 3-4, n. 3.

According to them, the

plurality’s test is the narrowest and thus is controlling under
Marks v. United States, 430 U.S. 188 (1977).

Id.

As noted above, circuit courts are divided on whether
to apply the plurality’s test, Justice Kennedy’s test, or both
post-Rapanos.

The Courts of Appeal for the Seventh and Eleventh

Circuits have found only Justice Kennedy’s opinion to be
controlling based on the Supreme Court’s decision in Marks.
Gerke Excavating Inc., 464 F.3d at 724-25; Robinson, 505 F.3d at
1221-22.

In Marks, the Court directed that “[w]hen a fragmented

Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.”
193 (internal citations and quotations omitted).

Id. at

According to

those circuits courts, Justice Kennedy’s view is controlling
because it is the least restrictive of federal jurisdiction.
Gerke Excavating Inc., 464 F.3d at 724-25; Robinson, 505 F.3d at
1221-22.

17

The Courts of Appeals for the First, Third and Eighth
Circuits instead have found Marks to be inapposite because
neither the plurality opinion nor Justice Kennedy’s concurrence
relied on a narrower ground than the other did.

Johnson, 467

F.3d at 62-64; Bailey, 571 F.3d at 799; Donovan, 661 F.3d at
182.

The court in Donovan describing the conundrum that the

Johnson court faced explained:
Judge Lipez, writing for the majority of the panel in
Johnson, disagreed that the “narrowest grounds” in the
Marks sense necessarily means those grounds least
restrictive of federal jurisdiction. The court in Johnson
stated that “it seems just as plausible to conclude that
the narrowest ground of decision in Rapanos is the ground
most restrictive of government authority . . . because that
ground avoids the constitutional issue of how far Congress
can go in asserting jurisdiction under the Commerce
Clause.” 467 F.3d at 63 (emphasis added). Even if one
were to conclude that the opinion resting on the narrowest
grounds is the one that relies on “less sweeping reasons
than the other”—meaning that it requires the same outcome
(here, the presence of federal regulatory jurisdiction) in
only a subset of the cases that the other opinion would,
and in no other cases—the court in Johnson concluded that
Marks is unhelpful in determining which Rapanos test
controls. Id. at 64. This is because Justice Kennedy's
test would find federal jurisdiction in some cases that did
not satisfy the plurality's test, and vice versa. Id. For
example, if there is a small surface water connection
between a wetland and a remote navigable water, the
plurality would find jurisdiction, while Justice Kennedy
might not. Furthermore, a wetland that lacks a surface
connection with other waters, but significantly affects the
chemical, physical, and biological integrity of a nearby
river would meet Justice Kennedy's test but not the
plurality's. See id. It is therefore difficult, if not
impossible, to identify the “narrowest” approach.
Donovan, 661 F.3d at 181.

18

Instead, those courts looked to the suggestion by
Justice Stevens contained in his Rapanos dissent as a “simple
and pragmatic way to assess what grounds would command a
majority of the Court.”

Id. (citing Johnson, 467 F.3d at 64).

Justice Stevens’ dissent, which was joined by three other
Justices, states:
I would affirm the judgments in both cases, and
respectfully dissent from the decision of five Members of
this Court to vacate and remand. I close, however, by
noting an unusual feature of the Court's judgments in these
cases. It has been our practice in a case coming to us
from a lower federal court to enter a judgment commanding
that court to conduct any further proceedings pursuant to a
specific mandate. That prior practice has, on occasion,
made it necessary for Justices to join a judgment that did
not conform to their own views. In these cases, however,
while both the plurality and Justice Kennedy agree that
there must be a remand for further proceedings, their
respective opinions define different tests to be applied on
remand. Given that all four Justices who have joined this
opinion would uphold the Corps' jurisdiction in both of
these cases — and in all other cases in which either the
plurality's or Justice Kennedy's test is satisfied — on
remand each of the judgments should be reinstated if either
of those tests is met.
Rapanos, 547 U.S. at 810 (Stevens, J., dissenting).
In accordance with these instructions, these circuits
have decided to follow “Justice Stevens’ instructions and look[]
to see if either Rapanos test is satisfied.”
at 183.

Donovan, 661 F.3d

This “ensures that lower courts will find jurisdiction

in all cases where a majority of the Court would support such a
finding.”

Johnson, 467 F.3d at 64.
19

The Johnson court also

indicated that the Supreme Court has strayed away from the Marks
test, citing cases where “members of the Court have indicated
that whenever a decision is fragmented such that no single
opinion has the support of five Justices, lower courts should
examine the plurality, concurring and dissenting opinions to
extract the principles that a majority has embraced”; the court
further observed that Justice Stevens’ failure to refer to Marks
“indicates that he found its framework inapplicable.”

467 F.3d

at 65-66 (citing cases).
The court finds the analysis of the Courts of Appeals
for the First, Third, and Eighth Circuits more persuasive, as
affirmed by the Fourth Circuit’s willingness to apply the
significant nexus test in Precon I and consider both tests in
Precon II.

That the plurality’s test may find jurisdiction

where Justice Kenendy’s test would not and vice versa makes
determining which test is the “narrowest” under Marks most
difficult.

By allowing for jurisdiction under either test,

support will be had by a majority of the Rapanos Court.

“If the

[waters] have a continuous surface connection with ‘waters of
the United States,’ the plurality and dissenting Justices would
combine to uphold the Corps' jurisdiction over the land, whether
or not the [waters] have a ‘substantial nexus’ (as Justice
Kennedy defined the term) with the covered waters.

20

If the

[waters] (either alone or in combination with similarly situated
lands in the region) significantly affect the chemical,
physical, and biological integrity of ‘waters of the United
States,’ then Justice Kennedy would join the four dissenting
Justices from Rapanos to conclude that the [waters] are covered
by the CWA, regardless of whether the [waters] have a continuous
surface connection with ‘waters of the United States.’

Finally,

if neither of the tests is met, the plurality and Justice
Kennedy would form a majority saying that the [waters] are not
covered by the CWA.”

See Donovan, 661 F.3d at 183.

Accordingly, in determining whether the Pad 4 streams
are subject to the CWA under both plaintiffs’ APA claim and
defendants’ enforcement counterclaim, the court will find
jurisdiction if either the Rapanos plurality test or Justice
Kennedy’s test is met.
Plaintiffs make several additional arguments as to why
only the Rapanos plurality opinion applies to this case.

In

2015, the EPA and the Corps amended the definition of “waters of
the United States” in a final rule entitled “Clean Water Rule:
Definition of ‘Waters of the United States’”.
37,054 (June 29, 2015).

See 80 Fed. Reg.

On February 28, 2017, President Trump

issued an executive order, which instructs the Administrator of
the EPA and Assistant Secretary of the Corps to review the Clean
21

Water Rule “and publish for notice and comment a proposed rule
rescinding or revising the rule, as appropriate and consistent
with law.”

Pls.’ Resp. Ex. 1 (Feb. 28, 2017 Executive Order).

The executive order also directed the Administrator of the EPA
and Assistant Secretary of the Corps to consider interpreting
“navigable waters” consistent with the plurality’s Rapanos
opinion.

Id.

Plaintiffs acknowledge that this case is based on

the 2008 Waters of the United States Guidance, and not the 2015
Clean Water Rule to which the Executive Order applies, but
argues “it would make little sense for the Kennedy test to still
be applied here.”
Order.

Pls.’ Resp. at 3; Feb. 28, 2017 Executive

Plaintiffs additionally assert that the 2008 Waters of

the United States Guidance issued by the EPA and the Corps after
Rapanos is not legally enforceable because it was never
submitted to Congress for final approval.

Id.

However, as noted by defendants, the 2015 EPA Clean
Water Rule was not in effect when plaintiffs’ discharges
occurred and therefore does not govern this case.
Reply at 2.

See Defs.’

Because the 2015 Clean Water Rule does not guide

this case, neither does President Trump’s February 28, 2017
Executive Order.

Moreover, because the court bases its decision

to utilize both the relative permanence test and the significant
nexus test on Rapanos itself and not the 2008 Waters of the

22

United States Guidance, it is irrelevant that it was not
submitted to Congress for final approval.
B. Clean Water Act Enforcement Counterclaim
Defendants and plaintiffs both move for summary
judgment on defendants’ counterclaim, which seeks injunctive
relief and civil penalties against defendants for their
violation of the CWA.
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).
1. Persons under the CWA
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).

Plaintiffs do not dispute that they are “persons”
under the CWA.

Foster is a member of Foster Farms and a limited

partner and employee of Marketing & Planning Specialists.
at AR 000384; Pls.’ Mem. Ex. 18 (Foster Farms Interrogatory
23

AR 47

Responses) at 3; Pls. Mem. Ex. 19 (M&PS Interrogatory Responses)
at 2.

Foster Farms and Marketing & Planning Specialists own the

Site.

2d Am. Comp. ¶ 8(d)-(f).

Foster hired Fox Engineering to

design the plans for the pad construction and hired Walters
excavation to clear, fill, and level the Site.
20 (Metheny Dep.) at 28-30; 90-91.

Pls.’ Mem. Ex.

The court thus finds that

plaintiffs are “persons” under the CWA.
2. Discharge of a Pollutant
Defendants contend that plaintiffs’ activities at the
Site “resulted in a discharge of pollutants, specifically fill
material.”

Defs.’ Mem. at 12.

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.

24

1993).

Defendants have made a prima facie showing that

plaintiffs discharged pollutants within the meaning of the CWA.
3. “From a Point Source”
Defendants assert that the “bulldozers, dump trucks,
and other earthmoving equipment . . . used by Mr. Walters and
his employees to deposit rock, dirt, and other fill material at
the Site are point sources.

Defs.’ Mem. at 13.

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.”

United States

v. Lambert, 915 F. Supp. 797, 802 (S.D.W. Va. 1996) (internal
citations and quotations omitted).

The court is satisfied that

plaintiffs’ actions qualify as discharge “from a point source”
and plaintiffs do not dispute this contention.

25

4.

Into Waters of the United States
Under the CWA, “navigable waters” are defined as

“waters of the United States.”

33 U.S.C. § 1362(7).

As

discussed, the court will apply both the relatively permanent
flow test and the significant nexus test to determine whether
the Pad 4 streams are waters of the United States.
a.

Relatively Permanent Flow
The parties do not dispute that waters that are

connected to traditional navigable waters that have a
“relatively permanent flow” are jurisdictional waters under the
CWA.

Defs.’ Mem. at 13; Pls.’ Mem. at 23; see Rapanos, 547 U.S.

at 732.

The plurality in Rapanos explained that jurisdiction

under this test was limited to “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.

The

plurality further elaborated that they did 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.”
n. 5 (internal quotations omitted).

26

Id. at 732,

As discussed, RR4 is a stream that crosses Pad 4
which was filled with dirt, rock and other materials by
plaintiffs.

RR1, RR2, and RR 3 flow into RR4.

RR4 then exits

the western boundary of Pad 4 and its path crosses a neighbor’s
hayfield and then joins the First Unnamed Tributary to Neal Run.
Defendants assert that prior to being filled, RR4 had
a relatively permanent seasonal flow.3

Defs.’ Mem. at 15.

Plaintiffs do not dispute defendants’ contention that RR4 once
flowed seasonally on the Site.

Defs.’ Mem. at 16.

Indeed, in

reviewing aerial imagery prior to being filled, plaintiffs’
expert Dane Pehrman found that “there was a defined channel with
seasonal flow within the topographic depression that flows from
the Foster site.”

Defs.’ Mem. Ex. 61 (Pehrman Report) at 7.

Drs. David Arscott and Charles Dow, who are defendants’ experts

3

In the argument relating to the relative permanence test in
defendants’ motion for summary judgment, defendants only argue
that RR4 had a relatively permanent flow. However, in a
footnote in their significant nexus analysis, defendants state
“The aquatic life found in the unburied section of RR2
suggestions that RR2 had a relatively permanent seasonal flow.
Arscott Decl. ¶ 37-38. Because RR2 flowed into RR3, which
ultimately flows into the navigable-in-fact portion of Neal Run,
RR2 may meet the Rapanos plurality standard as well as Justice
Kennedy’s significant nexus standard.” Defs.’ Mem. at 22, n.
15. Inasmuch as defendants provide no other evidence for this
assertion and do not otherwise support this argument in the
relatively permanent flow section of their brief, the court
finds that defendants have failed to provide sufficient evidence
to preclude summary judgment on this point.
27

on stream ecology and hydrology, concluded that RR4 was a
seasonal stream prior to being filled based on their finding of
water-dependent lifeforms in the undisturbed reaches of the
stream and other similar streams on the Neal Run Crossing
property.
at ¶ 45.

Defs.’ Mem. at 16-17; Defs.’ Ex. 24 (“Arscott Decl.”)
Based on Dr. Arscott’s findings, he believes that

prior to being filled, RR4 flowed for approximately 4-8 months
in non-drought years.4

Id.

That RR4 flowed seasonally on the Site is further
supported by Randolph Engineering’s stream delineation report,
which classified RR4 as an intermittent stream because it showed
the same flow characteristics as RR5 and RR10 (which were viewed
as similar, unfilled streams on the Site), which White observed
and classified as intermittent, and because it received
contributing flow from three ephemeral streams, RR1, RR2, and

4

The parties do not state how many months of the year is
required for a stream to qualify as having a seasonal flow.
Plaintiffs cite to Precon II as “recogniz[ing] the [Corps’]
interpretation of the term ‘seasonal rivers’ to include those
bodies of water which have continuous flow at least seasonally,
e.g. typically 3 months.” Pls.’ Mem. at 25 (citing 501 Fed.
Appx. at 271, n. 1). Defendants cite to cases finding a
seasonal flow when a body of water held water continuously for
three months or less. Defs.’ Mem. at 15-16 (citing cases). The
court need not determine how long a stream must flow to qualify
as relatively permanent, but instead refer to the Rapanos
plurality’s statement that “[c]ommon sense and common usage
distinguish between a wash and a seasonal river.” 547 U.S. at
732, n. 5.
28

RR3.

Pls.’ Mem. Ex. 25 (“White Dep.”) at 50.

In addition, the

Corps and the EPA independently determined that RR4 was a
relatively permanent water.

The Corps conducted its own

analysis and verified Randolph Engineering’s delineation and
concluded that RR4 was an intermittent-seasonal stream based in
part on the watershed’s size and the characteristics of RR5 and
RR10, which are similar watersheds located on Pads 4 and 5, and
thus concluded it was a relatively permanent water.

Defs.’ Mem.

at 17; Andreescu Decl. Attach. O (“Corps JD Letter”).

During

their Site visit on September 9, 2010, Andreescu and Lutte
observed RR4’s stream channel emerging from the disturbed area
with a bed, banks and “ordinary high water mark” (“OHWM”),
observed the channel upstream and Andreescu later reviewed GIS
data and aerial photographs of the Site, from which she
concluded RR4 was a relatively permanent water.

Defs.’ Mem. at

17-18; Andreescu Decl. ¶¶ 19, 24; Lutte Decl. ¶¶ 17, 24; Defs.’
Mem. Ex. 27.
Defendants contend that prior to being filled by
plaintiffs, RR4 “exited the western boundary of the Site and
flowed across a neighbor’s hayfield to the First Unnamed
Tributary of Neal Run.

Defs.’ Mem. at 18; Stokely Decl. ¶ 16.

To support this contention, defendants first point to Fosters’
response to defendants’ information request, which stated,

29

“[d]rainage [from the Site] was flowing across an open field
into the main stream without the benefit of a silt fence.”
Defs.’ Mem. 18; AR # 47 at AR 000383.

Defendants also assert

that the flow across the hayfield is supported by the testimony
of Larry Carr, who owned the hayfield from 1965 to 2000.
Mem. at 18.

Defs.’

Carr testified that, in the wintertime and early

spring, water from the Site would “run down through here
[indicating on the map a “concave dip” on the hayfield] and down
all the way to this Neal Run area.”
Dep. at 12, 24, 28-29.

Defs.’ Mem. at 18; Carr

During the Site visit, Andreescu and

Lutte additionally observed RR4’s flow path as it left the Site
and traveled into and across the hayfield to the First Unnamed
Tributary.
¶¶ 23-24.

Defs.’ Mem. at 18; Andresscu Decl. ¶ 22; Lutte Decl.
Defendants assert that RR4’s flow path across the

hayfield is visible in aerial photographs taken before and after
plaintiffs’ filling activities.
Decl. ¶¶ 116-17.

Defs.’ Mem. at 18; Stokely

The state of West Virginia mapped RR4 as it

flows across the hayfield to the First Unnamed Tributary.
Defs.’ Mem. at 18;

Andresscu Decl. ¶ 48 & Attach. P (SAMB Map).

Finally, Pehrman, plaintiffs’ expert, observed water from the
Site flowing continuously across the hayfield into the First
Unnamed Tributary.

Pehrman Dep. at 106-107.

30

The parties do not dispute that the tributaries
downstream from the hayfield are all relatively permanent bodies
of water: the First Unnamed Tributary flows into the Second
Unnamed Tributary for about 500 meters before it connects to
Neal Run, from which Neal Run connects to the Little Kanawha
River and then to the Ohio River.

Dow Decl. ¶ 21; Pehrman Dep.

121.
Plaintiffs’ sole disagreement with defendants’
characterization of RR4 as relatively permanent is that CWA
jurisdiction is lost in the hayfield, because there is no
relatively permanent flow across it and no visible bed, bank or
OHWM for 120 to 121 feet.

Pls.’ Resp. at 6-13; Pls.’ Mem. at

29-36.
In support of the position that there is no
hydrological connection across the hayfield, plaintiffs cite to
the testimony of Carr, Larry George, and Doug Hatfield.
Although defendants interpret Carr’s testimony as establishing
that there is a relatively constant flow of water across the
hayfield in the winter and spring, plaintiffs point to Carr’s
testimony that the hayfield was “always dry” from June through
early fall, that flow across the hayfield would only occur due
to an “overnight watershed” and “wouldn’t be a continuous
thing.”

Pls.’ Resp. at 6; Pls.’ Ex. 4 (Carr, George, Hayfield
31

Dep.).

When asked if there was ever continuous flow across the

hayfield for three months or more, Carr testified, “No.
Never.”

Id.

Never.

However, Carr repeatedly testified that water

traveled from the Site through the hayfield from late winter to
early spring.

Carr Dep. at 12, 24, 28-29, 31-32.

Larry George testified that he had been familiar with
the Pad 4 area and hayfield since 1952.

George stated that

surface flow was only visible across the hayfield if it rained
for ten days.

Pls.’ Resp. at 7; Pls.’ Ex. 4.

George testified

that there was never a ditch or erosional feature across the
hayfield.

Id.

Doug Hatfield, who had lived near the Pad 4 area

and the hayfield since 1988 testified, “It’s a natural runoff.
It’s not a stream. . . . That doesn’t stay wet . . . . There’s
no permanent water source like a point or a spring to bring that
water all the time it just dissipated. . .”

Id.

Defendants

argue that in accordance with the testimony of plaintiffs’
expert Pehrman, testimony by neighbors as to their perception of
flow is not a reliable indicator of determining the delineation
of streams and wetlands.

Defs.’ Resp. at 14.

Plaintiffs also reference the report completed by GAI
Consultants (“GAI”) in June 2013.
Ex. 54 (“GAI Report”).

Pls.’ Resp. at 8; Pls.’ Mem.

According to the report, the hayfield

“did not exhibit defined channel characteristics and appeared to
32

be consistent with an upland hayfield. . . . At approximately
121 feet down-gradient from the loss of bed and bank a channel
was found to reestablish.”

GAI report at 2.

GAI’s field

analyst, Jayme Fuller stated, “If there was flow, it would have
had to present the physical characteristics that we’ve
identified here in our report.”

Pls.’ Mem. Ex. 55 (Fuller Dep.)

at 186-88.
Plaintiffs next argue that there cannot be CWA
jurisdiction upstream of the hayfield because of the loss of the
ordinary high water mark.
regarding OHWMs.

They cite to EPA and Corps guidance

The EPA guidance states, “One means of

identifying the lateral constraints is the existence of an
[OHWM].”

Pls.’ Mem. at 10; Pls.’ Mem Ex. 30 (Clean Water

Protection Guidance) at 12, 14.

The Corps regulation states

“(1) In the absence of adjacent wetlands, the jurisdiction
extends to the ordinary high water mark[.]”

33 CFR § 328.4.

However, as is stated in the guidance and the regulation, and as
is noted by defendants, this refers to the way to identify the
“lateral extent of jurisdiction in the absence of adjacent
wetland (i.e., the jurisdictional width of the tributary when
not abutted by a wetland) and has no bearing on the vertical
extent of jurisdiction (i.e., the jurisdictional length), which
is what Plaintiffs dispute here.”

33

See Defs.’ Resp. at 8, n. 8.

Plaintiffs also contend that the GAI Report contains
historical aerial photography that shows the hayfield has always
lacked physical indicators of flow, such as a bed, banks or
OHWM.

Pls.’ Resp. at 8-10; GAI Report at 7-11.
Plaintiffs additionally argue that White, who prepared

the delineation report for Randolph Engineering, upon which
defendants rely, recanted his opinion that RR4 was
jurisdictional after he read the GAI report.

Pls.’ Resp. at 9.

White testified that “[I]t’s interesting that what was
considered to be an intermittent stream not only doesn’t show
any groundwater, but not even any bed and bank features. . . .
[which] would strongly go against any kind of a significant
nexus connection to the downstream water . . . . [and] would go
against the relatively permanent water.”
Pls.’ Mem. Ex. 31 (White Dep.) at 137-40.

Pls.’ Resp. at 9;
White also testified

that had he observed the “same things that are represented” in
the report, he “would have deemed everything . . . not
jurisdictional because there was no physical connection to the
downstream water.”

Id.

Defendants argue that “White’s

[deposition] testimony was based on his (incorrect) assumption
that a break in OHWM severed the physical hydrologic connection
to the downstream water. . . . Plaintiffs’ expert, Mr. Pehrman,
who (unlike Mr. White) observed the hayfield, testified that the

34

hydrologic connection between the Site and downstream waters was
not unbroken.”

Defs.’ Resp. at 15 (citing Pls.’ Mem. Ex. 31

(White Dep.) at 138 and Pls.’ Resp. Ex. C (Pehrman Dep.) at 213.
Plaintiffs also point to the expert opinion of
Pehrman, of Environmental Resources Management (“ERM”), who made
a ground inspection of the hayfield in 2015 and reviewed
topographical mapping, aerial imagery, ground photography, soil
mapping and the GAI and Randolph Engineering studies and
concluded that even though water was continuously flowing
through the hayfield on the day he conducted his site visit, CWA
jurisdiction ended at the upstream end of the hayfield because
the hayfield “lacks a defined bed and bank and is best described
as a broad swale through the farm field which conveys episodic
runoff to the downgradient jurisdictional tributaries during
heavy precipitation/ snowmelt events . . . .”

Pls.’ Resp. at 9-

10; Pls.’ Mem. Ex. 61 (ERM Report) at 7.
Finally, plaintiffs attempt to discredit the testimony
of defendants’ experts.

First, plaintiffs argue that Stokely

made no “on the ground validation of the features he claimed to
identify by remote imagery” and this methodology has been
rejected by a court in United States v. Lipar, 2015 WL 7681272,
No. H-10-1904 (S.D.T.X. Aug. 30, 2015).

Pls.’ Resp. at 10.

However, as noted by defendants, Stokely’s aerial photo
35

interpretation has been accepted and relied upon by other
courts, see, e.g., United States v. Lucas, 516 F.3d 316, 326-27
(5th Cir. 2008).

And the Lipar case upon which plaintiffs rely

to invalidate Stokely’s tesimony was reversed by the Court of
Appeals for the Fifth Circuit on the grounds that the district
court’s waters of the United States analysis was “flawed legally
and factually,” and the case was remanded to the trial court.
665 Fed. App’x 322, 325 (5th Cir. 2016).
Defendants also argue that the expert opinions of
Arscott and Dow are flawed in that they did not inspect the
hayfield or account for the loss of bed, bank and OHWM in the
hayfield in their report.

Pls.’ Resp. at 11.

But, as

defendants discuss, Arscott stated in his rebuttal report that
“it is common in montane regions for some water to flow subsurface where sediment plumes are deposited in valleys where
stream channel/ valley slopes transition from higher gradient to
lower gradient. . . . To the extent that ERM reports the
formation of a defined channel with bed and bank characteristics
in the downstream portion of the ACO, we note that such a
feature would be formed by the flow of water from the surface,
the sub-surface or both.”
Report).

Defs.’ Mem. Ex. 24 at Ex. B (Rebuttal

Stokely similarly stated that “it is not uncommon to

observe a tributary to change its character, including the

36

nature of its bed and banks as it flows across different
landscape features and scopes.”
(Rebuttal Report).

Defs.’ Mem. Ex. 7 at Ex. B

Pehrman testified in his deposition that a

change in character of flow can be caused by a change in the
landscape.

Defs.’ Resp. Ex. C (Pehrman Dep.) at 199-202.

As noted, defendants’ experts refute plaintiffs’
experts’ contention that the loss of OHWM severs CWA
jurisdiction.

In addition, defendants point to the Corps

instructions for identifying jurisdictional waters, which states
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).”
Ex. 26 at MPS 001240 n. 6.

Defs.’ Mem.

In such circumstances, the field

staff are instructed to “look for indications of flow above and
below the break.”

Id.

Reestablishment of the OHWM after the

break evidences the continuous hydrologic connection through the
break.”

See id.

Defendants argue that the loss of OWHM for 120

feet is due to the transition in the slope of the land, which
caused the water to briefly flow subsurface, as well as the
years of agricultural activities conducted in the hayfield.
Defs.’ Reply at 6-7; Lutte Dec. ¶ 24; Andreescu Decl. ¶ 23; Carr
Dep. at 10, 13.

37

The court finds that the above evidence raises genuine
questions of material fact that preclude summary judgment for
either party as to whether RR4 is a relatively permanent water
under the plurality’s test in Rapanos.

First, there is a

dispute over whether there was a relatively continuous flow
across the hayfield prior to the filling of RR4.

Both parties

have presented sufficient evidence to prevent summary judgment
on the issue of the frequency of flow through the hayfield.
Second, there is a dispute over whether the break in OHWM severs
CWA jurisdiction.

Defendants argue that the break does not

sever jurisdiction inasmuch as here, it was caused by a change
in the slope of the land and the agricultural use of the
hayfield for many years, and not due to infrequent flow, which
is evidenced by the reestablishment of bed, banks, and OWHM 120
feet downstream of the hayfield.

Plaintiffs disagree and

instead argue that the hayfield evidences a break in flow, which
severs jurisdiction.

The evidence presented by each party

sufficiently precludes the grant of summary judgment for the
other party.

Summary judgment for each party on the

counterclaim on this basis is accordingly denied.
b.

Significant Nexus
Defendants contend that RR1, RR2, RR3, and RR4

significantly affect the chemical, physical, and biological
38

integrity of Neal Run and the Little Kanawha River, and are thus
a “water of the United States” under Justice Kennedy’s
significant nexus test.

Defs.’ Mem. at 19.

at 779-80 (Kennedy, J., concurring).

Rapanos, 547 U.S.

Plaintiffs argue that the

evidence supports a finding that there is no significant nexus
between RR 1, RR2, RR3, and RR4 and a navigable water.
According to Justice Kennedy, “[t]he 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).”
715, 779-80 (Kennedy, J., concurring).

Rapanos, 547 U.S.

“[T]he significant nexus

test does not require laboratory tests or any particular
quantitative measurements to establish significance.”

Precon I,

633 F.3d at 294.
According to defendants, the filled streams were
headwater streams, which are the upper tributaries of a stream
network which have a “profound influence on larger downstream
waters.”

Defs.’ Mem. at 20-21, n. 14; Arscott Decl. ¶ 13;

Andreescu Decl. ¶ 25; Defs.’ Mem. Ex. 31-33.

Defendants assert

that the filled streams significantly affect Neal Run and the
39

Little Kanawha River by: (1) contributing flow, sediment and
other material to downstream waters; (2) supporting and
exchanging aquatic life with downstream waters; and (3)
processing nutrients, materials, and pollutants.
21-26.

Defs.’ Mem. at

These activities have been recognized by courts as

forming a significant nexus with a traditional navigable water.
See Donovan, 661 F.3d at 186; United States v. Cundiff, 555 F.3d
200, 210-11 (6th Cir 2009).
i. Contribution of Flow, Sediment, and Other Materials
Drs. Arscott and Dow observed other, similar streams
and concluded that the filled streams contributed flow, sediment
and other materials to the navigable-in-fact portion of Neal
Run.

Defs.’ Mem. at 21; Arscott Decl. ¶ 44; Dow Decl. ¶ 34.

Dr. Dow used Digital Elevation Modeling (“DEM”) and Geographic
Information System (“GIS”) tools to map the stream locations
prior to being filled, and as discussed, concluded that RR4
presented a hydrological connection across the hayfield.
Mem. at 22; Dow Decl. ¶¶ 20-21.

Defs.’

By examining aquatic life in

the unburied portions of RR2, RR3 as well as RR5 and RR10, Drs.
Arscott and Dow deduced that RR2 was intermittent, RR3 was
ephemeral, and RR4 was intermittent or nearly perennial.
Arscott Decl. ¶¶ 41, 42, 45.

40

Drs. Arscott and Dow analyzed a three-year
hydrological study by the United States Geological Survey of two
streams that dried up in the summer and early fall, Robinson Run
and North Bend Run, which are located less than 50 miles from
the Site.

Defs.’ Mem at 22; Dow Decl. ¶¶ 27-28.

Drs. Arscott

and Dow opined that these streams had comparable hydrological
patterns with the filled streams, and cited to their “annual
suspended sediment loads,” which was between 8 and 11.6 tons per
year for North Bend Run and between 3.5 and 22.9 tons per year
for Robinson Run, which defendants contend illustrates “the
substantial type of physical connection that the Filled Streams
likely shared with downstream waterways.”

Defs.’ Mem. at 22-23;

Dow Decl. ¶¶ 27, 29-30.
Dr. Dow also used GIS tools to calculate the total
stream length and watershed area within the Neal Run watershed.
Dow Decl. at ¶ 23.

According to Dr. Dow’s analysis, Neal Run’s

first and second order streams account for more than 75% of the
stream network length and drain almost the same percentage of
the total watershed.5

Defs.’ Mem. at 23; Dow Decl. at ¶ 23.

5

First order streams are streams that do not receive flow from
any other defined streams. Arscott Decl. at ¶ 13. When first
order streams join together, they form a second order stream.
First order streams “grow quickly in almost exponential fashion
as small and intermediate (2nd – 5th order) sized channels
connect with one another to form large rivers (usually 6th-order
or greater.” Id. “An increase in stream order requires that
41

Defendants assert that although the lengths of the filled
streams individually are a small percentage of the total
watershed, the individual sizes are not the determinative factor
in establishing jurisdiction.

Defs.’ Mem. at 23 (citing Precon

II, 603 F.App’x at 152).
ii. Support and Exchange Aquatic Life
Defendants contend that the filled streams “served as
habitat to aquatic organisms that contributed to the maintenance
and viability of species downstream.”

Defs.’ Mem. at 24.

Drs.

Arscott and Dow studied and documented numerous types of aquatic
life in: (1) the unburied portions of RR2 and RR3; (2) RR5 and
RR10, which defendants assert are similar streams on the Site
that were not filled; (3) the First and Second Unnamed
Tributaries to Neal Run; and (4) Neal Run.

Id.; Arscott Decl. ¶

36.
According to Drs. Arscott and Dow, the presence of
life in these areas demonstrates that the filled streams were
“aquatic habitats to several species that were connected to
downstream waters.”

Defs.’ Mem. at 24; Arscott Decl. ¶ 43.

According to them, aquatic organisms in headwater streams, like

two identical stream orders merge to form the next ordinal
stream order downstream.” Id. First, second, and third order
streams are collectively described as headwater streams. Id.
42

those they found in RR2, RR3, RR5 and RR10, process materials
and serve as the bottom of the food chain to support downstream
life.

Defs.’ Mem. at 24; Arscott Decl. ¶ 18.

For example,

organisms “eating leaves in headwater streams transform the food
from large particles (single whole leaves) to small particles of
food (feces and leaf fragments . . .), which, in turn, can then
be fed upon by downstream . . . communities whose species have
specialized mouth parts and structures enabling them to filter
out the small organic particles being transported in the water
column.”

Defs.’ Mem. at 24; Arscott Decl. ¶ 18.
This function is important because “the ability of

each species to span several stream orders enables larger
effective population size, which contributes significantly to
the species’ ability to maintain a viable genetic
structure . . . and high level of reproductive health.”
Mem. at 25; Arscott Decl. ¶ 20.

Defs.’

If headwater streams are

eliminated, there are “impacts [on] the potential viability of
species living downstream, in second, third, or higher order
navigable tributaries in a way that could lead to their gradual
extinction via inability to maintain effective population sizes”
in the watershed.

Defs.’ Mem. at 25; Arscott Decl. ¶ 20.

43

iii. Process Nutrients, Materials, and Pollutants
Defendants contend that RR1, RR2, RR3, and RR4
“transformed and transported organic matter to be used by
aquatic life downstream.”

Defs.’ Mem. at 25.

Headwater streams

“have smaller channels canopied by trees, and accumulate leaf
litter, twigs and other tree parts . . . which are transformed
by microorganisms into dissolved organic carbon (“DOC”).
Mem. at 25; Arscott Decl. ¶ 15.

Defs.’

DOC is a nutrient for aquatic

life and is transported with the water downstream and
supplements the energy for downstream aquatic life.”

Defs.’

Mem. at 25; Arscott Decl. ¶ 15.
Drs. Arscott and Dow measured chemical properties in
the Site, directly downstream from the Site and at other similar
headwater streams within 50 miles of the Site and found the
levels in the channels within the Site to be consistent with
other nearby headwater streams.
Decl. ¶¶ 29-30.

Defs.’ Mem. at 25; Arscott

Headwater streams are generally lower in

specific conductivity than downstream waters, and help to dilute
pollution in downstream waters where there are greater human
inputs that cause conductivity to rise.
Arscott Decl. ¶ 31.

Defs.’ Mem. at 26;

When headwater streams are altered or

destroyed, like the filled streams, their ability to dilute
downstream water lessens, which causes the concentration of
44

pollutants to rise downstream and degrade traditional navigable
waters.

Defs.’ Mem. at 26; Arscott Decl. ¶ 31.

Drs. Arscott

and Dow found that the water emerging from the filled streams as
it discharged to the stormwater pond constructed by plaintiffs
at the edge of the Site had an elevated specific conductivity
compared to the other similar streams within 50 miles that Drs.
Arscott and Dow analyzed, which impact downstream waters, as
previously discussed.

Id.

Drs. Arscott and Dow also collected water samples to
analyze nutrients and ions and discovered increased
concentrations of sodium ions and chlorine ions downstream of
the fill, which “are strong indicators of human impact.”
Mem. at 26; Arscott Decl. ¶¶ 32, 33.

Defs.’

Defendants assert that

this is caused by the inability of lost, impacted or degraded
headwater streams to dilute downstream waters, which causes the
downstream waters to be threatened or impaired.

Id.

Plaintiffs primarily dispute defendants’ evidence by
arguing that none of the above described functions could occur
in any significant way because of the lack of hydrologic
connection, except during “extreme precipitation conditions,”
between RR4 and the First Unnamed Tributary at the far edge of
the hayfield.

Pls. Mem. at 13-15.

As discussed above, whether

there is a significant connection in the hayfield such that
45

water flow is relatively permanent, despite the loss in bed,
bank, and OHWM, is a genuine question of material fact.

For the

same reason, whether sufficient hydrologic connection exists
across the hayfield for sediment, aquatic life, and the
processing of nutrients, minerals and pollutants to
significantly affect Neal Run and the Little Kanawha River is
also a genuine issue of material fact.6
In addition, plaintiffs dispute that the species
identified by Arscott were present prior to the filling of the
Pad 4 streams, stating that they could have developed after the
plaintiffs placed a stormwater pond, and because the species
were winged, “it is entirely plausible that the specimens
gathered came from oviposit egg placement by adult specimens of
the species in question.”

Pls.’ Resp. at 14.

To the extent

plaintiffs dispute Arscott’s expert opinion that the species he
identified were present in the filled streams prior to being
filled, this constitutes a dispute of fact.

6

Plaintiffs also point to the JD Guidebook which establishes
that the “presence of a reliable OHWM with a channel defined by
bed and banks” is among one of the principal considerations for
evaluating significant nexus. Pls.’ Mem. at 28-29. As noted,
whether the loss in these characteristics across the hayfield is
from a change in elevation, soil characteristics, or the use of
the hayfield for agricultural purposes for many years or from
infrequent flow is a genuine question of material fact.
46

Plaintiffs also argue that defendants’ experts’
failure to “present any quantifiable analysis of the alleged
influence of the Pad 4 area on flow, biology and water chemistry
to the [Traditional Navigable Water]” and their failure to
“compare any other watersheds with similar OHWM discontinuities,
renders EPA’s empirical support . . . deficient as a matter of
law.”

Pls.’ Resp. at 16.

But, a “significant nexus showing

does not require laboratory tests or any particular quantitative
measurements.”

Precon I, 633 F.3d at 294.

And, as defendants

state, such quantifiable analysis of the influence on the Pad 4
area on flow, biology and water chemistry became impossible when
the streams were filled by plaintiffs.

The court is

additionally unwilling to reject the opinions of defendants’
experts solely for their failure to compare watersheds with OHWM
continuities.

Requiring defendants to find streams identical to

the filled streams for comparison purposes would impose a
significant and unnecessary burden on plaintiffs.

Plaintiffs

cite to no source that requires streams to be identical for
their comparative use in a significant nexus analysis.7

7

Plaintiffs also claim that Drs. Arscott and Dow’s reports are
flawed because they do not render an ultimate significant nexus
conclusion. Drs. Arscott and Dow testified to the impact the
filling of the Pad 4 streams had on downstream navigable waters
and need not render an ultimate conclusion in order for the
court to consider their testimony in answering whether there is
CWA jurisdiction in this case.
47

Plaintiffs cite to Pehrman’s testimony to establish
that the Pad 4 streams do not have a significant nexus with
downstream navigable tributaries.

In making his findings,

Pehrman examined at EPA and Corps guidance for establishing a
significant nexus and concluded:
The [hayfield] lacks a defined bed and bank and is best
described as a broad swale through the farm field which
conveys episodic runoff to the downgradient jurisdictional
tributaries during heavy precipitation/snowmelt events.
The area does not contain wetlands nor an aquatic habitat
that would support the Little Kanawha River (the nearest
TNW). Additionally given the small contributory watershed
size (30.7 acres), low and episodic flow volume, and
insignificant suspended sediment load from the forested
upgradient areas, there is no evidence that the [hayfield]
would have carried substantial pollutants, flood waters or
impacted the water quality in the Little Kanawha River.
Based on these factors, the [hayfield] does not have the
ecological factors needed to meet the significant nexus
test.
Pehrman Report at 10.
The court finds that defendants have presented prima
facie evidence of a significant nexus between the Pad 4 streams
and navigable waters that precludes summary judgment against
them.

Additionally, the court finds that plaintiffs have

presented evidence that creates a genuine issue of material fact
as to whether the Pad 4 streams have a significant nexus with
downstream navigable waters under Justice Kennedy’s concurrence
in Rapanos.

48

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.
6. Summary
The court finds that genuine issues of material fact
preclude summary judgment on whether RR4 is a water of the
United States under the relatively permanent water test and
whether RR1, 2, 3, and 4 are waters of the United States under
the significant nexus test.

Accordingly, plaintiffs’ and

defendants’ motions for summary judgment on defendants’ CWA
counterclaim are denied.
C. Administrative Procedure Act Claims
Plaintiffs second amended complaint first claims that
the EPA’s issuance of the Administrative Compliance Order, which
found that they were in violation of the CWA, was “arbitrary,
capricious, and an abuse of discretion” pursuant to the APA, 5
U.S.C. §§ 701-706.

Pls.’ Mem. at 36.

Second, plaintiffs allege

that defendants violated their procedural due process rights by
failing to give them an opportunity to appeal the findings in
the ACO.

Third, they argue that the EPA took retaliatory action

against them based upon a campaign donation to Congressman
McKinley, in violation of the First Amendment.
49

Defendants move for summary judgment on all three of
plaintiffs’ claims.

Plaintiffs move for summary judgment on the

claim that the issuance of the ACO was arbitrary, capricious,
and an abuse of discretion.
Because plaintiffs are challenging federal agency
action under the CWA, their claims are subject to judicial
review under the APA.

The APA “confines judicial review of

executive branch decisions to the administrative record of
proceedings before the pertinent agency.”

Shipbuilder's Council

of Am. v. United States Dept. of Homeland Sec., 770 F. Supp. 2d
793, 802 (E.D.Va. 2011).

See also 5 U.S.C. § 706 (“In making

the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party.”); Camp v. Pitts,
411 U.S. 138, 142 (1973).

No genuine issue of material fact

exists here because “the function of the district court is to
determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision
it did.”

Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th

Cir. 1985).

See also American Forest Res. Council v. Hall, 533

F. Supp. 2d 84, 89 (D.D.C. 2008).

Accordingly, the questions

presented are solely legal in nature, and summary judgment is
warranted on the basis of the information contained in the
administrative record.

50

Section 706(2)(A) of the APA provides that a court
will “hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with law.”
706(2)(A).

5 U.S.C. §

Our court of appeals has elaborated on the standard:

In determining whether agency action was arbitrary or
capricious, the court must consider whether the agency
considered the relevant factors and whether a clear error
of judgment was made. Although this inquiry into the facts
is to be searching and careful, the ultimate standard of
review is a narrow one. The court is not empowered to
substitute its judgment for that of the agency. Deference
is due where the agency has examined the relevant data and
provided an explanation of its decision that includes a
rational connection between the facts found and the choice
made.
The “arbitrary and capricious” standard is not meant to
reduce judicial review to a “rubber-stamp” of agency
action. While the standard of review is narrow, the court
must nonetheless engage in a searching and careful inquiry
of the record. But, this scrutiny of the record is meant
primarily to educate the court so that it can understand
enough about the problem confronting the agency to
comprehend the meaning of the evidence relied upon and the
evidence discarded; the questions addressed by the agency
and those bypassed; the choices open to the agency and
those made.
Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556
F.3d 177, 192–93 (4th Cir. 2009) (internal citations and
quotation marks omitted); see also Ohio Valley Environmental
Coalition, Inc. v. United States Army Corps of Engineers, 828
F.3d 316 (4th Cir. 2016).

51

Although not explicitly stated in their motions for
summary judgment, the parties made clear that they disagreed as
to the scope of review for plaintiffs’ procedural due process
and First Amendment retaliation claims.

Defendants argue that

review should be limited to the administrative record, because
these claims are brought pursuant to the APA.

Plaintiffs argue

that because the acts giving rise to these claims took place
after the issuance of the ACO, a review of only the
administrative record will be insufficient.
Under the APA, the reviewing court may also set aside
agency action that is “contrary to constitutional right” or
“without observance of procedure required by law.”
§ 706(2)(B),(D).

See 5 U.S.C.

Plaintiffs’ procedural due process and First

Amendment retaliation claim fall into these categories.

The APA

is a limited waiver of sovereign immunity that permits review of
final agency action; review outside the scope of the APA is
impermissible absent some other waiver of sovereign immunity.
Lane v. Pena, 518 U.S. 187, 192 (1996); 5 U.S.C. §§ 702, 704.
The ACO constitutes final agency action, which is subject to
judicial review under the APA.

See Sackett v. EPA, 566 U.S.

120, 131 (2012) (stating that “final agency action” is that
which determines rights or obligations and from which “legal
consequences . . . flow.”).

52

Because plaintiffs have pointed to no other action by
defendants that qualifies as final agency action and have
likewise failed to cite to another source of waiver of sovereign
immunity by the government, their challenge to the ACO as
unreasonable, their procedural due process claim and their First
Amendment retaliation claim are limited to an administrative
record review by the court.

As discussed below, the court has

reviewed evidence presented by plaintiffs outside of the
administrative record and finds that defendants are entitled to
a grant of summary judgment on these claims even when this
evidence is considered.
1.

Issuance of Administrative Compliance Order
In the corrected second amended complaint, plaintiffs

contend that the issuance of the administrative compliance order
by the EPA was arbitrary and capricious.

In their motions for

summary judgment, plaintiffs and defendants both argue that the
court should grant summary judgment in their favor on this
claim.
a. Applicable Law
The court will review the administrative record to
determine whether the evidence supports the EPA’s determination

53

that the Pad 4 waters were waters of the United States under the
relatively permanent waters test or the significant nexus test.
b. Application
According to defendants, the ACO should be upheld
“because the administrative record fully supports EPA’s
determination regarding each element necessary to establish that
Plaintiffs violated [the] CWA.”

Defs.’ Mem. at 28.

The EPA

determined and plaintiffs do not dispute that plaintiffs are
persons, who added a pollutant, from a point source, without a
necessary permit.

Id.

Accordingly, plaintiffs only object to

the EPA’s determination that the Pad 4 streams are waters of the
United States.
Defendants contend that the administrative record
fully supports the EPA’s finding that the filled streams are
within the jurisdiction of the CWA.

Id.

In support of this,

defendants point to the inspection by Andreescu and Lutte on
September 9, 2010, who are scientists trained to identify
jurisdictional waters, where they observed and photographed
stream channels above and below the disturbed area in Pad 4.
Defs.’ Mem. at 28; AR 41.

The inspectors advised Walters,

plaintiffs’ contractor who excavated the Pad 4 area, that a
Section 404 permit was likely required for the work.
Mem. at 28; AR 40.

Defs.’

After the inspection, Andreescu reviewed GIS
54

data, including topographic and contour maps, and aerial
photographs of the Site.

Defs.’ Mem. at 28; AR 95.

According

to defendants, [t]he aerial images taken over multiple years
showed a dark linear feature where [Andreescu] and [Lutte]
observed the stream channels, as well as a downstream connection
from the Site through the neighboring hayfield.”

Id.

Based on

this information and her expertise, Andreescu concluded that RR4
“was a relatively permanent headwater tributary of Neal Run.”
Id.

Andreescu additionally concluded that the stream had a

significant nexus to the downstream portions of Neal Run
“[b]ased on her training and knowledge of established scientific
literature on the important ecological contributions of
headwater streams to downstream waters.”

Defs.’ Mem. at 29; AR

2, 3 (articles describing the importance of headwater streams).
The EPA then sent CWA information requests to Foster
Farms and Fox Engineering, and received responses to those
requests in December 2010.

Defs.’ Mem. at 29; AR 44-49.

The

responses “confirmed that Plaintiffs had cleared, graded, and
filled the Site [Pad 4] and indicated that additional work had
taken place since September 2010.”

Defs.’ Mem. at 29; AR 49.

In April 2011, the Corps forwarded to the EPA the
stream and wetland report prepared by Randolph Engineering at
plaintiffs’ request.

Defs.’ Mem. at 29; AR 58.
55

The Randolph

Engineering report delineated RR1, RR2, RR3 and RR4 on Pad 4,
and 7 other streams on Pads 4 and 5 that it believed were
jurisdictional and that plaintiffs had filled ephemeral streams
RR1, RR2, and RR3.

Id.

In May 2011, Andreescu and other EPA staff visited the
Site again and confirmed that plaintiffs had performed more
work.

Defs.’ Mem. at 29; AR 99.

Andreescu again determined

that RR4 was a relatively permanent headwater stream and that it
had a significant nexus to the downstream portion of Neal Run.
Defs.’ Mem. at 29.

“Thereafter, based on Ms. Andreescu’s

observations, her review of aerial imagery and GIS data, her
technical and scientific expertise, and consideration of
Plaintiffs’ own jurisdictional delineation, EPA concluded that
Plaintiffs had unlawfully filled jurisdictional waters and
issued the ACO on January 24, 2012.”

Id.

Plaintiffs argue that the EPA’s evidence is not
legally sufficient to support a finding that the streams on Pad
4 were jurisdictional waters under the CWA.

Pls. Mem. at 36.

While much of plaintiffs’ arguments target whether defendants’
expert testimony is sufficient to support the EPA’s conclusion
that there is a significant nexus between the Pad 4 streams and
a water of the United States, these arguments need not be
addressed as this expert evidence is not contained in the
56

administrative record, making it inappropriate to rely on it in
determining whether the ACO was arbitrary and capricious under
the APA.

See

Shipbuilder's Council of Am., 770 F. Supp. 2d at

802; 5 U.S.C. § 706; Camp, 411 U.S. at 142.

The court will

instead determine whether there is sufficient evidence contained
in the administrative record to find that the EPA “considered
the relevant factors and whether a clear error of judgment was
made.”

Aracoma, 556 F.3d at 192–93.
i. Taking Lead Status
Plaintiffs first argue that the EPA acted unlawfully

in taking lead agency status from the Corps in that it was
inconsistent with a 1989 memorandum of agreement between the
Corps and EPA.

Pls.’ Mem. at 29.

As defendants correctly note,

the memorandum of agreement states that it is not enforceable by
third parties and provides no defense to liability and therefore
cannot constitute “procedure required by law” for EPA to issue
an ACO.

Defs.’ Resp. at 21; 5 U.S.C. § 706(d)(2); AR 40 (1989

MOU).
The court also cannot say that the EPA’s assumption of
lead agency status was arbitrary, capricious, or an abuse of
discretion.

The memorandum of understanding between the parties

to the agreement explains the process that the EPA and the Corps
have agreed to use to determine which agency will take the lead
57

in an enforcement action.

The EPA had an interest in the Site

because it oversaw the restoration of Pad 1 and EPA
investigators first discovered the Pad 4 violations.

Moreover,

the memorandum of understanding states that that while the Corps
will generally assume lead status, the EPA will take the lead
when the case involves repeat violators, flagrant violators,
EPA’s request of a case or class of cases, or a recommendation
by the Corps that an EPA penalty is warranted.
III.D.1 to D.2.

1989 MOU at

Thus, it appears that even if the memorandum of

understanding was binding, the EPA could have requested that it
assume lead agency status of this case.

The court cannot say

that this constitutes “prima facie evidence of irregularity” as
plaintiffs allege.

Pls.’ Reply at 17.

ii. Relatively Permanent Body of Water
As discussed, under the relatively permanent body of
water test developed by the plurality in Rapanos, the Court
found that the CWA covered “relatively permanent, standing or
flowing bodies of water . . . forming geologic features” and not
“ordinarily dry channels through which water occasionally or
intermittently flows[,]” but did not “necessarily exclude” from
this definition bodies of water that “might dry up in
extraordinary circumstances,” or “seasonal rivers.”
U.S. at 732-33.
58

See 547

In concluding that RR4,8 was a relatively permanent
body of water, the EPA relied on Andreescu’s field observations
of the Site where she examined the stream channels above and
below the disturbed area, her review of GIS data and aerial
imagery, which shows a connection between RR4 in Pad 4 and “a
downstream connection from the Site through the neighboring
hayfield[,]” responses to information requests provided by
plaintiffs, and the stream delineation report performed by
Randolph Engineering on behalf of plaintiffs.

Defs.’ Mem. at

28-29; AR 40, 41, 44, 47, 49, 61, 95, 99.

8

Defendants appear to contend only that the EPA determined that
RR4 was a relatively permanent body of water. See Defs.’ Mem.
at 28-30. The Randolph Report states that RR4 was intermittent
and RR1, RR2, and RR3 were ephemeral, but then concludes that
the streams “exhibit a surface connection to, or are a part
of, . . . the Unnamed Tributary of Neal Run.” Randolph Report
at 1-2. An ephemeral stream “has flowing water only during, and
for a short duration after, precipitation events in a typical
year. . . . Runoff from rainfall is the primary source of water
for streamflow. . . . Ephemeral streams typically have flowing
water for a few hours to a few days after a storm event and have
no discernable floodplain.” Corps’ “Operational Draft Regional
Guidebook for the Functional Assessment of High-gradient
Ephemeral and Intermittent Headwater Streams in Western West
Virginia and Eastern Kentucky” (July 2010) at 92. The Rapanos
plurality concluded that “channels through which water flow
intermittently or ephemerally, or channels that periodically
provide drainage for rainfall” are not waters of the United
States. 547 U.S. at 739. Inasmuch as the Randolph Report found
that RR1, RR2, and RR3 were ephemeral, and no other evidence in
the administrative record indicates that they have
characteristics of a relatively permanent water, to the extent
that defendants argue RR1, RR2, and RR3 are relatively
permanent, the court cannot find support for these
determinations in the administrative record.
59

Defendants contend that under the “highly deferential”
standard, the evidence contained in the record supports a
finding that RR4 is a relatively permanent body of water.
Mem. at 27-28.

The court agrees.

Pls.’

As discussed, the evidence in

the administrative record includes a summary of Andreescu and
Lutte’s September 9, 2010 visit to the Site, as well as
photographs from both of the inspectors’ visits, which show that
a stream on Pad 4 with stream features had been disturbed and
filled.

AR 41, AR 99.

In addition, GIS data and aerial

photographs from multiple years show a dark line that crosses
the hayfield and connects to the first unnamed tributary, which
appears to be a stream channel.

AR 95.

That Andreescu

considered the lack of bed, bank and ordinary high water mark in
the hayfield is evident by her photographs of it during her
second Site inspection.

Id.

Randolph Engineering’s delineation

report, which was prepared at the request of plaintiffs,
confirmed the EPA’s conclusion that RR4 was a relatively
permanent stream covered under the CWA.9

9

AR # 58.

As noted, plaintiffs contend that White retracted his position
that RR4 was a relatively permanent body of water during his
deposition. Assuming the court could properly review his
deposition, which is not contained in the administrative record,
the court cannot say that it was improper for the EPA to rely on
it when they issued the ACO. Moreover, the court disagrees with
plaintiffs’ characterization that White recanted his position,
given that he did not examine the hayfield, nor was he made
aware that there was at least an occasional hydrologic
60

The court finds that there is sufficient evidence
contained in the record to support the EPA’s factual conclusion
that RR4 is a relatively permanent stream covered under the CWA.
See Precon I, 633 F.3d at 296 (citing 5 U.S.C. § 706(2)(A))
(stating that an agency’s “factual findings are entitled to
deference under the APA, and should be reversed only if
‘arbitrary, capricious, an abuse of discretion or otherwise not
in accordance with law’”).
Plaintiffs assert a number of arguments as to why the
issuance of the ACO was not reasonable, none of which contest
the adequacy of the evidence contained in the administrative
record that support the EPA’s conclusion that RR4 is a
relatively permanent body of water.

Plaintiffs first argue that

because Andreescu and Lutte did not have permission to be on the
Site on September 9, 2010, any information or evidence obtained
during the visit should be excluded from consideration in
evidence supporting EPA’s claims.

Pls.’ Resp. at 17.

In

support of this contention, plaintiffs point to Marshall v.
Barlow’s, Inc., 436 U.S. 307, 312 (1979) and EPA guidance for
inspecting premises.

Pls.’ Resp. at 17; Pls.’ Mem Ex. 27.

connection across the hayfield, as was present when Pehrman
conducted his examination.
61

Defendants respond that Andreescu and Lutte believed
they had permission to be on the Site, and even if they did not,
it does not constitute a search under the Fourth Amendment
because of the “open fields doctrine.”

Defs.’ Rep. at 9 (citing

Hester v. United States, 265 U.S. 57, 59 (1924) and Oliver v.
United States, 466 U.S. 170, 183-84 (1984)).
The court agrees that even though Andreescu and Lutte
did not have permission to be on the Site when they conducted
the September 9, 2010 inspection, their visit does not
constitute a search in violation of the Fourth Amendment.
Barlow’s, the case on which defendants rely, involved a search
by an Occupational Safety and Health Act (“OSHA”) inspection of
“the working areas of” an electrical and plumbing installation
business.

436 U.S. at 310.

The Court found that “[t]he Warrant

Clause of the Fourth Amendment protects commercial buildings as
well as private homes.”

Id. at 311 (emphasis added).

Unlike in

Barlow’s, the EPA inspectors were on plaintiffs’ undeveloped
commercial land, which, from photographs of the Site, does not
appear to be fenced in or otherwise guarded from the public.10

From the evidence presented, the court does not believe there
was any structure on the Pad 4 area. Moreover, although the
court’s review is limited to the administrative record, it is
notable that Andreescu’s declaration states that she did not
encounter any “No Trespass” signs or fencing surrounding the
Site during her inspection. Andreescu Decl. ¶ 18.
10

62

In Barlow’s, the Court did not suggest that the same
exceptions that apply to the search of private premises, such as
the open fields’ doctrine, do not likewise apply to commercial
property.

Under the open fields doctrine, “an individual has no

legitimate expectation that open fields will remain free form
warrantless intrusion by government officers.”
at 181.

Oliver, 466 U.S.

Therefore, “the special protection accorded by the

Fourth Amendment to the people in their ‘persons, houses, papers
and effects,’ is not extended to the open fields.”

Hester, 265

U.S. at 59; see also United States v. Vankesteren, 553 F.3d 286,
290 (4th Cir. 2009) (finding that the placement of a
surveillance video camera in defendant’s field “located a mile
or more from his home [where] the land was being used for
farming and not intimate activities” was not an unreasonable
search).

Because the Pad 4 area was a large, undeveloped tract

of commercial land, Andreescu’s and Lutte’s inspection of it was
not an unreasonable search under the Fourth Amendment.
Nor does internal EPA search guidance upon which
plaintiffs rely support their allegation that the evidence
obtained from the Site visit was illicit.

Contrary to

plaintiffs’ assertion, the entry onto the Site did not violate
EPA’s inspection guidance.

First, the post-Barlow’s memorandum

by the Assistant Administrator for Enforcement of the EPA

63

pointed to by plaintiffs states that “‘Open Fields’ and ‘In
Plain View’ situations” are “Areas Where a Right of Warrantless
Entry Still Exists[,]” and further elaborates “Thus, an
inspector’s observations from the public area of a plant or even
from certain private property not closed to the public are
admissible.”

Pls.’ Mem. Ex. 25 at 5-6 (emphasis added).

This

document appears to explain the law post-Barlow’s and further
indicates that Barlow’s did not limit the open fields doctrine.
Nor does the EPA “NPDES Compliance Inspection Manual” appear
applicable to the inspection of the Site, because it refers to a
“facility inspection[,]” like the one at issue in Barlow’s, not
the observations of commercial land not closed to the public, as
in this case.

See id. at 2-12.

Because plaintiffs had no

expectation of privacy in the Site, and because the EPA guidance
on which plaintiffs rely does not preclude the search of a tract
of commercial land, the Fourth Amendment cannot serve as a basis
to exclude the evidence obtained during Andreescu’s and Lutte’s
inspection.11
Plaintiffs also assert that Andreescu’s report and
deposition testimony as well as Lutte’s deposition testimony are

11

It is unclear what purpose excluding evidence from the
September 9, 2010 inspection would serve, given that plaintiffs
consented to EPA’s inspection visit of the Site in May 2011,
before the issuance of the ACO. See Defs.’ Mem. at 29; AR 99.
64

“misleading” and inconsistent with the photographs taken during
the Site visit.

Pls.’ Resp. at 17-18.

However, as already

noted, in reviewing the reasonableness of the ACO under the APA,
the court is limited to review of the administrative record, and
should not consider deposition testimony and evidence that was
obtained during discovery in this case of defendants’ CWA
enforcement counterclaim.

Because the photographs from the EPA

inspectors’ September 9, 2010 visit are contained in the
administrative record, and the depositions plaintiffs refer to
are not, plaintiffs concerns are unfounded.

Moreover, contrary

to plaintiffs’ assertions, Andreescu’s report contained in the
administrative record does not state how much water was in the
First Unnamed Tributary during her site visit.

See AR 41.

Nor

does the court see how plaintiffs are prejudiced by Andreescu’s
statement in her report that Moore stated that plaintiffs placed
four feet of fill on top of RR4, even if it were untrue, given
that plaintiffs do not contest that they placed fill in RR4.
The court finds that “[t]he agency has examined the
relevant data and provided an explanation of its decision that
includes a rational connection between the facts found and the
choice made.”

Aracoma, 556 F.3d at 192–93.

Accordingly, the

court finds that the administrative record supports the EPA’s

65

determination that RR4 is a relatively permanent water and thus
a water of the United States under the CWA.
iii. Sufficient Nexus
Defendants attack the adequacy of the evidence that
supports the EPA’s finding that there is a significant nexus
between RR1, 2, 3 and 4 and navigable waters.

Pls. Mem. at 36.

Our court of appeals in Precon Development Corp., Inc.
v. U.S. Army Corps of Engineers (“Precon I”), 633 F.3d 278 (4th
Cir. 2011) has provided useful instruction on how to determine
whether there is sufficient evidence to support a significant
nexus finding:
We agree that the significant nexus test does not
require laboratory tests or any particular quantitative
measurements in order to establish significance. . . .
However, in announcing this test, [Justice Kennedy] clearly
intended for some evidence of both a nexus and its
significance to be presented. Otherwise, it would be
impossible to engage meaningfully in an examination of
whether a [water] had “significant” effects or merely
“speculative or insubstantial” effects on navigable waters.
Id. at 780.
Precon I, 633 F.3d at 294.
In this case, the administrative record is almost
devoid of evidence pertaining to the significant nexus that the
Pad 4 waters have on navigable waters.

Defendants point to

Andreescu’s observations of RR4, the fact that it was a
66

relatively permanent headwater tributary, the Randolph Report,
to the extent it found that RR1, RR2, RR, and RR4 were
jurisdictional, and Andreescu’s training and knowledge of
literature on the important ecological contributions headwater
streams have on downstream waters to support the EPA’s finding
that it had a significant nexus to navigable waters.
Mem. at 28; AR 2, AR 3.

Defs.’

While quantitative measurements are not

required for a significant nexus analysis, the administrative
record does not contain enough evidence to allow the court to
evaluate the significance of the connection between the Pad 4
waters and navigable waters.

See Precon I, 633 F.3d at 294.

The court is also concerned that the EPA did not
follow the required analytic protocols in making its significant
nexus determination.

As noted by plaintiffs, the administrative

record lacks any chemical or biological data that was analyzed
by the EPA prior to the issuance of the ACO.

Pls. Mem. at 33.

The court finds that some data analysis is necessarily required
in a significant nexus determination.

Guidance by the EPA and

the Corps suggests a number of factors that are to be considered
in determining whether a significant nexus exists.
The court is unable to determine from the
administrative record that the EPA considered the relevant
factors.

“Clean Water Act Jurisdiction Following the U.S.
67

Supreme Court’s Decision in Rapanos v. United Stats & Carabell
v. United States,” available at https://www.epa.gov/cwa404/2008-rapanos-guidance-and-related-documents, states that a
significant nexus should include consideration of:




. . . hydrologic factors including the following:
-volume, duration, and frequency of flow, including
consideration of certain physical characteristics of
the tributary
-proximity to the traditional navigable water
-size of the watershed
-average annual rainfall
-average annual winter snow pack
. . . ecologic factors including the following:
- potential of tributaries to carry pollutants and
flood waters to traditional navigable waters
- provision of aquatic habitat that supports a
traditional navigable water
- potential of wetlands to trap and filter
pollutants or store flood waters
- maintenance of water quality in traditional
navigable waters

“Clean Water Act Jurisdiction Following the U.S. Supreme Court’s
Decision in Rapanos v. United Stats & Carabell v. United
States.”

The memorandum further instructs,

Accordingly, Corps districts and EPA regions shall document
in the administrative record the available information
regarding whether a tributary and its adjacent wetlands
have a significant nexus with a traditional navigable
water, including the physical indicators of flow in a
particular case and available information regarding the
functions of the tributary and any adjacent wetlands. The
agencies will explain their basis for concluding whether
or not the tributary and adjacent wetlands, when considered
together, have more than speculative or insubstantial
effect on the chemical, physical, and biological integrity
of a traditional navigable water.

68

. . .
The record shall, to the maximum extent practicable,
explain the rationale for the determination, disclose the
data and information relied upon, and if applicable,
explain what data or information received greater or lesser
weight, and what professional judgment or assumptions were
used in reaching the determination.
Id. at p. 11-12.
From the administrative record, the court can infer
that the EPA considered the hydrologic factors based upon the
two Site visits to Pad 4, the Randolph Report, and maps of the
area.

However, there is no evidence in the administrative

record from which the court can determine that the EPA
considered the ecologic factors listed above in reference to the
Pad 4 streams.

Moreover, the existence of such ecologic factors

was not documented in accordance with the above guidance. It is
not enough to simply rely on articles that discuss the impact
headwater streams have on downstream waters; some site-specific
observations or data is necessarily required for the court to
review the EPA’s significant nexus determinations.
Defendants argue that plaintiffs cannot fault the EPA
for failing to use “site specific, quantifiable data” to support
their significant nexus determination because when plaintiffs
filled the streams, they destroyed the source of the data.
Defs.’ Mem. at 24.

The court agrees that EPA need not use

quantifiable data from the Site, especially considering that
69

RR1, RR2, RR3, and RR4 were filled by plaintiffs.

However, this

does not relieve them of the duty to support their finding of
significance with some analysis beyond articles about the
effects of headwater streams on navigable waters.

Because none

exists in the administrative record, the court cannot find the
EPA’s conclusion to that end persuasive.

See id. at 297.

“Deference is due where the agency has examined the relevant
data and provided an explanation of its decision that includes a
rational connection between the facts found and the choice
made.”

See Aracoma, 556 F.3d at 192–93.

Because the

administrative record does not explain the EPA’s reasons for
finding a significant nexus with navigable waters, the court
finds the ACO regarding RR1, RR2, RR3, and RR4 on this basis is
arbitrary and capricious.
iv. Summary of Review of ACO
Because there is no evidence of significance of the
effect of these streams on a navigable water, the administrative
record does not support the EPA’s determination that RR1, RR2
RR3, and RR4 have a significant nexus with a navigable water.
However, there is sufficient evidence contained in the
administrative record to support the EPA’s finding that RR4 is a
relatively permanent stream under the CWA.

Accordingly, the

court grants defendants’ motion for summary judgment on the
70

reasonableness of the ACO to the extent it relates to RR4, and
otherwise denies it.

The court additionally grants plaintiffs’

motion for summary judgment to the extent it relates to RR1,
RR2, RR3, and otherwise denies it.
2.

First Amendment Retaliation Claim
During discovery on defendants counterclaim,

plaintiffs obtained from the EPA’s internal files, a printed
document from a website stating that plaintiffs contributed to
the campaign of United States Congressman David McKinley, with
plaintiffs’ name circled by hand.

Despite extensive discovery

on the matter, the origin of the document was never discovered.
The only EPA representative with knowledge of the document, Pam
Lazos, stated in her deposition that she believed the document
was obtained during the course of research on the corporate
relationship between Foster, Foster Farms and Marketing &
Planning Specialists, which was conducted after Foster
complained that the EPA named the wrong entity in the ACO.
Defs.’ Mem. at 36, n. 20; Ex. 45 to Defs.’ Mem. (Lazos Dep.) at
21:1-5, 22:16-24; 24:21-25:13).
As discussed by the court’s August 22, 2016 memorandum
opinion and order, in order to recover for a First Amendment
retaliation claim, plaintiffs must establish: (1) they were
“engaged in protected First Amendment activity[;]” (2) “the
71

defendants took some action that adversely affected [their]
First Amendment rights[;]” and (3) “there was a causal
relationship between [their] protected activity and the
defendants’ conduct.”

Constantine v. Rectors & Visitors of

George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (citing
Suarez Corp. Indust. v. McGraw, 202 F.3d 676, 685 (4th Cir.
2000)).
In their motion for summary judgment, defendants do
not dispute that plaintiffs’ political contribution is a
protected activity and that if the EPA’s enforcement proceeding
was based upon their political contribution, it would “likely
deter a person of ordinary firmness from exercise of First
Amendment rights.”
F.3d at 500).

Defs.’ Mem. at 36 (quoting Constantine, 411

Thus, plaintiffs must supply evidence showing

that defendants took an action that adversely affected their
First Amendment rights and a causal relationship between
plaintiffs’ contribution and the EPA’s actions.
At the summary judgment phase, “[t]he causation
requirement is rigorous.”

Huang v. Bd. of Governors of Univ. of

N.C., 902 F.2d 1134, 1140 (4th Cir. 1990).

Plaintiffs “must

show that ‘but for’ the protected expression the [defendant]
would not have taken the alleged retaliatory action.”

72

See id.

Plaintiffs alleged in their corrected second amended
complaint that the EPA’s discovery of the campaign contribution
and a “striking change in the government’s behavior” both “came
about in 2012.”

August 22, 2016 Mem. Op. & Order at 17-19.

Defendants argue that “the evidence shows that there was no
‘striking change’ in the government’s behavior in 2012, nor any
temporal connection between the EPA’s discovery of the
contribution and its actions.”

Pls.’ Mem. at 37.

The evidence in the administrative record demonstrates
that the EPA inspectors first visited the Pad 4 area in
September 2010 and informed Walters that a Corps permit was
likely necessary for the work being performed there.

AR 41.

On

October 18, 2011, the EPA informed Foster in an email that the
violations were “egregious” and that if the case was put through
the enforcement process, there would likely be “huge penalties.”
AR 84 at 0000634.

After the EPA took lead agency status and

after discussions between the agencies in October and December
2011, the EPA began drafting the ACO in December 2011.
Mem. at 38; Defs.’ Ex. 16.

Defs.’

On January 3, 2012, Lazos informed

Foster that EPA was assuming lead agency status and that the EPA
was “working up a penalty calculation.”

AR 84 at AR 0000632.

The ACO was then issued on January 24, 2012.

73

On February 22, 2012, the Corps issued a letter
stating that the Site contained jurisdictional waters.
Defendants state that this determination was made at the request
of Foster even though the EPA had assumed lead agency status.
Defs.’ Mem. at 39.

Although the letter stated that the Corps’

jurisdictional determination could be appealed, the Corps denied
plaintiffs’ attempt to appeal because the EPA had assumed the
role of lead agency for the Site.

Id.; see 33 C.F.R. § 331.11

(stating that a jurisdictional determination by the Corps cannot
be appealed when the EPA has assumed lead agency status).

On

April 5, 2012, the EPA sent a letter to Foster reaffirming its
determination that the Site contained jurisdictional waters.
Plaintiffs assert that the EPA’s “issuance of the ACO
in January 2012 and subsequent actions were the continuation of
an ongoing enforcement process fraught with animus irregularity,
malfeasance and misrepresentations that began in 2010 and
extended well into 2012.”

Pls.’ Resp. at 23.

For example,

plaintiffs discuss the purported animosity that EPA
administrators, particularly Lazos, had towards them because the
EPA did not approve of the bankruptcy order, which limited the
remediation efforts of the Pad 1 land to $50,000.12

But, these

Plaintiffs’ discuss other allegations, which also relate to the
EPA’s alleged animus towards them due to the bankruptcy court
order’s limitation of remediation work on the Pad 1 area to
12

74

events do not explain hostile treatment on the part of EPA
because of plaintiffs’ campaign contribution or any other
activity protected by the First Amendment.

Indeed, plaintiffs

have not rebutted defendants’ determination that the political
research document could not have been printed earlier than April
30, 2012, which was after the EPA issued the ACO on January 24,
2012 and after it affirmed this determination on April 5, 2012.
Defs.’ Mem. at 39-40.

Moreover, plaintiffs have failed to

establish that the issuance of the ACO by the EPA was out of the
ordinary considering the EPA had been investigating the Site
since 2010 and had been in frequent contact with Foster since
that time regarding the investigation.
The EPA’s assumption of lead authority over the case,
even assuming it was fraught with “animus irregularity,
malfeasance and misrepresentations,” cannot serve as a basis for
plaintiffs’ First Amendment claim.

The EPA first informed

plaintiffs that it was taking lead authority of the case on
January 3, 2012.

Pursuant to 33 C.F.R. § 331.11, this act

precluded appeal of the Corp’s jurisdictional determination.

$50,000. See Pls.’ Resp. at 22-26. These allegations served as
a basis of plaintiffs’ substantive due process claim, which the
court dismissed in its September 30, 2015 memorandum opinion and
order and did not allow to be revived in its August 22, 2016
memorandum opinion and order. Because they are irrelevant to
any existing claim, they are not otherwise discussed herein.
75

Even assuming that the EPA could have allowed such appeal, the
Corps notified plaintiffs of its jurisdictional determination
and plaintiffs’ inability to appeal the determination in
February 2012, prior to the date the political research document
was printed.
Plaintiffs attempt to circumvent the unrebutted
assertion that the EPA could not have known about the political
research document until at least the end of April 2012 by
alleging retaliation by the EPA in drafting letters sent to
Congressman McKinley and Senator Manchin, which occurred in July
and August 2012.
Senator Manchin made inquiries on behalf of Mr. and
Mrs. Blackwell, who were concerned about the stream location
work that was conducted on the Pad 1 area.
28; Pls.’ Resp. Ex. 12A, 12B.

Pls.’ Resp. at 27-

According to plaintiffs, it is

noteworthy that previous drafts of the letter to Senator Manchin
included statements that the EPA was limited in remediation
efforts on Pad 1 due to the constraints in the bankruptcy order,
and that these statements were removed in the final version of
the letter.

Id.

According to plaintiffs, the final version of

the letter presumably stated, “EPA would like to see the site
fully remediated and intends to pursue any avenue to that end
that may develop,” while an earlier version stated that the EPA
76

“continues to consider whether any additional avenues . . . .
may be available.

Pls.’ Resp. Ex. 12B.

In August 2012, in a letter drafted in part by Lazos
and sent to Congressman McKinley, the EPA represented that the
Corps was not willing to allow plaintiffs to pursue a Section
404 permit “given the extent of the violations at the site.”
Pls.’ Resp. at 24; Pls.’ Mem. Ex. 32.

Plaintiffs assert that

this statement was false and that Lazos knew it was false.
Pls.’ Resp. at 24-25.

Instead, plaintiffs contend that Hemann

of the Corps, informed Andreescu that the Corps was unwilling to
consider improvements to the site because the “EPA will not
consider [such improvements] as compensatory mitigation.”13
Pls.’ Resp. at 25.

Plaintiffs assert that they were not given

the opportunity to consider the option of obtaining a Section
404 permit because of the misrepresentations by Lazos.

Pls.’

Resp. at 25; Pls.’ Mem. Ex. 36, 37.
According to plaintiffs, “[t]he clear inclination by
EPA personnel to accommodate a Democratic Senator, but not a
Republican Congressman, easily implies that the Political

13

Notably, the letter does not state that the EPA was unwilling
to consider compensatory mitigation, but that the Corps “do[es]
not wish to verify the delineation if the EPA will not consider
improvements to unauthorized work as compensatory mitigation for
other unauthorized work.” See Pls.’ Mem. Ex. 37 (emphasis
added).
77

Research Document was a check by the agency to ascertain the
Plaintiffs’ political contributions in order to determine
whether the Plaintiffs did or did not support the agency’s
perceived ally. . . . EPA’s commentary regarding its response to
the inquiry from Senator Manchin clearly indicates that the
agency was willing to circumvent bankruptcy order constraints,
and strong arm the Plaintiffs into conducting remediation they
had no obligation to perform pursuant to that ruling, in order
to provide a politician whom the agency perceived to be friendly
to EPA with an answer the agency believed or knew that
politician would find more palatable.”
The court is not persuaded.

Pls.’ Resp. at 29-30.
Plaintiffs have not

demonstrated how either the letter to Senator Manchin or
Congressman McKinley evidence a retaliation on the EPA’s behalf
and how that retaliation is connected to their First Amendment
rights.

Assuming that plaintiffs are correct that Lazos did

misrepresent to Congressman McKinley the reason a Section 404
permit was not permitted in this instance, as noted by
plaintiffs, this language was consistent with Lazos’ email in
October 2011, which was prior to EPA’s purported knowledge of
the political research document, that the Corps was unwilling to
take the case back.

Pls.’ Resp. at 24.

As discussed above,

plaintiffs have been unable to demonstrate any other retaliatory

78

conduct by the EPA that is causally linked to the political
research document or any other evidence related to political
animus on the part of the EPA.

Moreover, plaintiffs’ theory

that the political research document was obtained as a check on
whether plaintiffs supported the agency’s perceived ally is
speculative at best and is illogical given that the EPA had
already indicated it was unwilling to issue a Section 404 permit
and had already issued its ACO by the time it was drafting
letters to Senator Manchin and Congressman McKinley.
Plaintiffs attempt to point to other actions by the
EPA that demonstrate purported retaliation on the EPA’s part due
to their campaign contribution.

First, they state that the

EPA’s use of private email accounts “cannot be discounted as
potential sources of the mysterious, and as yet unexplained,
Political Research Document.”

Pls.’ Resp. at 24.

However,

plaintiffs need not explain the source of the political research
document, but rather they must causally link it to the EPA’s
issuance of the ACO, which they have been unable to do.
Plaintiffs also contend that the EPA waited to provide
plaintiffs with a proposed penalty until 2014 although they
first calculated a penalty two months after the EPA’s first site
visit and again in 2013 in order to “artificially increase the
period of the alleged violation.”

79

Pls.’ Resp. at 26; Pls. Resp.

Ex. 7A, 7B.

Given that the EPA first calculated a proposed

penalty in 2010, this does not causally link this conduct to the
EPA’s discovery of the political research document, which could
not have occurred until 2012.
Because plaintiffs have failed to establish that “but
for” their campaign contribution, the EPA would not have issued
the ACO, or denied plaintiffs the opportunity to obtain a
Section 404 permit, or engaged in any other alleged retaliatory
activity, they cannot demonstrate a causal link between a First
Amendment protected activity and the EPA’s conduct.
Accordingly, defendants’ motion for summary judgment on
plaintiffs’ First Amendment retaliation claim is granted.
3. Procedural Due Process Claim
Plaintiffs assert that defendants violated their
procedural due process rights when the EPA failed to allow them
to appeal the jurisdictional determination in the ACO, thereby
depriving them of a property interest by “effectively fr[eezing]
the [P]roperty, rendering it commercially undesirable to
potential purchasers or lessess.”

Sept. 30, 2015 Mem. Op. &

Order at 10.
“The first inquiry in every due process challenge is
whether the plaintiff has been deprived of a protected interest
80

in ‘property’ or ‘liberty.’”

Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 59 (1999).

In the court’s September 30,

2015 memorandum opinion and order denying defendants’ motion to
dismiss with respect to plaintiffs’ procedural due process
claim, the court found that by alleging that the ACO rendered
the property undesirable to purchasers or lessees, plaintiffs
had “identified a property interest – the ability to freely
alienate their land — that is cognizable under due process.”
Sept. 30, 2015 Mem. Op. & Order at 11-12.
Plaintiffs have failed to present evidence of that
which was alleged in the corrected second amendment complaint.
That is, they have not cited to any factual evidence that they
have been unable to lease or sell or freely alienate their land
due to the issuance of the ACO.

Plaintiffs contend only that

“both in terms of imposition of affirmative obligations upon
Plaintiffs’ property by both the JD and compliance order, and in
terms of risks of crushing penalties, Plaintiffs property
interests have most certainly by [sic] deprived by the EPA’s
actions.

Both agency actions have also imposed very real and

substantial legal costs upon the Plaintiffs in defending their
interests.”

Pls.’ Resp. at 19.

The affirmative obligations imposed on plaintiffs
under the ACO and the legal fees plaintiffs have paid to defend
81

this action do not deprive them of a constitutionally protected
property interest.

Plaintiffs contend that Sackett, 566 U.S.

120 and United States Corps of Engineers v. Hawkes, 136 S.Ct.
1808 (2016) “indisputably establish[]” that the EPA’s actions
have deprived them of a protected property interest.

Pls.’

Resp. at 18-19.

In Sackett

Plaintiffs misconstrue these cases.

and Hawkes, the Supreme Court held that an ACO issued by the EPA
and an approved jurisdictional determination issued by the Corps
were final agency actions that are subject to judicial review
under the APA.
1816.

Sackett, 566 U.S. at 131; Hawkes, 136 S.Ct. at

While the Court found that “legal consequences . . .

flow” from an ACO, those consequences warrant a party’s ability
to judicially challenge the ACO in court under the APA.
Sackett, 566 U.S. at 126.

The Court in Sackett and Hawkes did

not find that the issuance of an ACO is a per se deprivation of
a protected property interest.
Because plaintiffs have failed to establish that
defendants deprived them of a substantial property interest by
the issuance of the ACO, plaintiffs’ procedural due process
claim fails.
Defendants’ motion for summary judgment with respect
to plaintiffs’ procedural due process claim is granted.

82

a Massachusetts Corporation, and
DOES 1 THROUGH 10, inclusive,
Defendants.
IV.

ORDER AND
Conclusion NOTICE

Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
For the foregoing reasons, it is ORDERED as follows:
certain events must occur:
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
1. Defendants’ motion for summary judgment be, and it
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
hereby is, granted with respect by memoranda will be denied without
unsupported to plaintiffs’ procedural due
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
process claim, plaintiffs’ First Amendment retaliation claim,
02/08/2016
Last day for Rule 26(f) meeting.
and reasonableness of the ACO pertaining to RR4 only, and it is
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
otherwise denied.
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
2. Plaintiffs’ motion for States Courthouse be, Charleston, before
Byrd United summary judgment in and it
the undersigned, unless canceled. Lead counsel
hereby is, granted with respect appear. reasonableness of the ACO
directed to to the
02/29/2016
Entry of scheduling is otherwise denied.
pertaining to RR1, RR2, and RR3, and it order.
03/08/2016

Last day to serve F.R. Civ. P 26(a)(1) disclosures.

The Clerk is requested to transmit copies of this
The Clerk is requested to transmit this Order and
order Notice to all counsel of record and to any unrepresented
to all counsel of record and any unrepresented parties.
parties.
ENTER: August 14, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

83