EPA files motion to dismiss in Clean Water Act lawsuit

By Kyla Asbury | Feb 9, 2015

CHARLESTON – The U.S. Environmental Protection Agency has filed a motion to dismiss a lawsuit against it for allegedly improperly applying the Clean Water Act to land a farmer wanted to develop.

The EPA filed the motion to dismiss, claiming some of the plaintiffs' claims go beyond the scope of what the court may properly adjudicate.

"Specifically, plaintiffs allege in their third and fourth claims, as well as in parts of the first claim, that EPA violated plaintiffs’ constitutional due process and equal protection rights by bringing an enforcement action based on animus and failing to provide an administrative appeals process for the order," the motion to dismiss states. "These alleged constitutional violations fail to state claims upon which relief can be granted; dismissal of those claims is proper under Rule 12(b)(6)."

The EPA claims the plaintiffs have violated CWA section 301 by discharging pollutants into waters of the United States without a permit and asked the court to order the plaintiffs to undertake restoration; and impose an appropriate civil penalty.

The plaintiffs have not been deprived of a protected liberty or property interest, according to the motion.

Ron Foster, Foster Farms LLC and Marketing & Planning Specialists Limited Partnership filed their lawsuit against the EPA and Gina McCarthy on May 21 in the U.S. District Court for the Southern District of West Virginia.

The plaintiffs claimed the EPA is saying a piece of property in Wood County at Neal Run Crossing near Lubeck is subject to Clean Water Act regulation, to which they disagree.

The plaintiffs claimed a 2006 U.S. Supreme Court opinion in Rapanos vs. United States clarifies what waters were subject to the Clean Water Act.

The defendants, after determining that property owned by the plaintiffs is allegedly subject to the CWA and alleging that they was responsible for discharging fill into unnamed tributaries of Neal Run, issued compliance orders to Foster Farms.

"The compliance order subjects plaintiffs to civil penalties for failure to comply with the order and was issued without providing plaintiffs an opportunity to appeal, be heard by an impartial decision maker and to contest defendants’ findings," the complaint stated.

The property does not substantially affect the physical, chemical or biological integrity of Neal Run or the Little Kanawha River, nor does a visible bed arid bank connect the fill areas on the property with Neal Run and, therefore, the fill areas on the property subject to the compliance order are not subject to the CWA, according to the suit.

n 2012, the EPA issued a compliance order to Foster Farms claiming that part of the property was subject to the CWA and alleging that Foster Farms and Marketing & Planning Specialists had illegally filled an unnamed tributary.

The plaintiffs claimed the EPA used a private consultant’s preliminary opinion in the ruling, but that the consultant later said "final determination concluded that the area at issue was not in fact jurisdictional" after applying the Rapanos standard.

"EPA has arbitrarily ignored the consultant’s final determination and instead relies upon the consultant’s disavowed preliminary finding to support the agency’s claim that the earthwork performed by Marketing & Planning constitutes an unauthorized discharge of dredged or fill material to waters of the United States," the complaint states.

The plaintiffs are seeking an injunction enjoining the EPA from enforcing the compliance order without first providing plaintiffs an administrative hearing and appeal. They are being represented by John C. Wilkinson Jr. and James. S. Crockett Jr. of the Charleston office of Spilman Thomas & Battle.

The EPA is represented by R. Booth Goodwin, Gary L. Call, Sam Hirsch and Amanda Shafer Berman of the U.S. Department of Justice.

U.S. District Court for the Southern District of West Virginia case number: 2:14-cv-16744

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