Petition for Writ of Certiorari — Ozark Materials River Rock, LLC, Petitioner v. David Benham

App. 1

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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DAVID BENHAM,

Plaintiff-Appellee,

v.

No. 17-5069

OZARK MATERIALS

RIVER ROCK, LLC,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 4:11-CV-00339-JED-FHM)

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(Filed Mar. 22, 2018)

Wilfred Wright, Claremore, Oklahoma, for DefendantAppellant.

Krystina Phillips (Jason B. Aamodt and Dallas L.D.

Strimple of Indian and Environmental Law Group,

PLLC, with her on the brief ), Tulsa, Oklahoma, for

Plaintiff-Appellee.

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App. 2

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.

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KELLY, Circuit Judge.

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Defendant-Appellant Ozark Materials River Rock,

LLC, appeals from the district court’s order approving

Plaintiff-Appellee David Benham’s proposed restoration plan of unlawfully filled wetlands in Saline Creek,

Benham v. Ozark Materials River Rock, LLC (Benham

II), No. 11-CV-339-JED-FHM (N.D. Okla. June 1,

2017), ECF No. 184. Ozark raises several issues on appeal challenging the district court’s order and underlying findings of fact and conclusions of law, Benham v.

Ozark Materials River Rock, LLC (Benham I), No. 11CV-339-JED-FHM, 2015 WL 235759 (N.D. Okla. Jan.

16, 2015), ECF No. 160. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

Background

This appeal arises from a private enforcement action under Section 505 of the Clean Water Act (CWA),

33 U.S.C. § 1365. Ozark is a sand and gravel mining

company that operates on property adjacent to Saline

Creek in Oklahoma. Mr. Benham recreates in Saline

Creek and claims that Ozark’s operations have degraded his ability to do so. In March 2011, Mr. Benham

served Ozark with a notice letter pursuant to Section

505, informing the company that it was violating

App. 3

Section 404 of the CWA, 33 U.S.C. § 1344. Section 404

requires a permit from the Army Corps of Engineers to

discharge dredge or fill material into navigable waters

if the activity disturbs more than one-half acre of wetland, and Ozark does not have a Section 404 permit.

The Army Corps of Engineers had inspected

Ozark’s operations in 2010 (and would do so again in

2012 and 2013) by driving through the property, but it

found no CWA violations. Nevertheless, after receiving

Mr. Benham’s notice, Ozark hired an environmental

consulting firm to perform a Section 404 impact analysis of Ozark’s Saline Creek operations. By June 1,

2011, Ozark had not addressed the CWA violations

that Mr. Benham alleged in his notice, so he filed the

instant citizen suit, as authorized by Section 505.

The district court held a bench trial and issued

findings of fact and conclusions of law determining

that Ozark violated Section 404 by disturbing more

than one-half acre of wetland through the discharge of

dredge and fill material. Benham I, 2015 WL 235759,

at *9. Specifically, the court found that Ozark’s construction of a roadway in Saline Creek and the filling

of its surrounding wetlands without a permit constitute a continuing violation of the CWA. Id. The district

court imposed a civil penalty of $35,000 and ordered

briefing on a restoration plan for the unlawfully filled

wetlands. Id. at *10. On June 1, 2017, the district court

issued an order adopting (substantially all of ) Mr. Benham’s proposed restoration plan. Benham II, slip op. at

1. One element of the plan created a conservation easement for the restoration site. Id. at 9–10.

App. 4

Discussion

Ozark raises six issues on appeal, contending that

(1) Mr. Benham lacks Article III standing, (2) Mr. Benham’s citizen suit notice letter was inadequate, (3) the

district court erroneously found that Ozark violated

the CWA, (4) the district court erroneously admitted

evidence prepared by Ozark’s withdrawn expert, (5)

the district court’s order is unconstitutional, and (6)

Mr. Benham’s suit falls within the primary jurisdiction

of the Army Corps of Engineers. For the following reasons, we reject Ozark’s arguments and affirm.

A. Mr. Benham Has Article III Standing

Whether a plaintiff has Article III standing is a jurisdictional question that we review de novo. Wilderness Soc’y v. Kane County, 632 F.3d 1162, 1168 (10th

Cir. 2011). Article III standing requires showing (1) an

“injury in fact” that is (2) “fairly traceable to the challenged action of the defendant” and is (3) likely to “be

redressed by a favorable decision.” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 180–81 (2000). The injury must be “concrete

and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 180. “The party invoking federal jurisdiction bears the burden of

establishing these elements . . . with the manner and

degree of evidence required at the successive stages of

the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992). At the final stage of litigation, the evidence

App. 5

produced at trial must adequately support the facts establishing standing. Id.

“[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected

area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the

challenged activity.” Laidlaw, 528 U.S. at 183 (quoting

Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Here,

Mr. Benham has shown injury in fact by maintaining

that he regularly swims and fishes in Saline Creek and

that his ability to do so has been diminished by Ozark’s

discharge of material into the creek and its surrounding wetlands. Such recreational impairments constitute injury in fact for a plaintiff filing a citizen suit

under the CWA. See id. at 181–83.

To satisfy the traceability requirement, the defendant’s conduct must have caused the injury. Lujan,

504 U.S. at 560. Mr. Benham testified that the quality

of Saline Creek did not begin to decline until after

Ozark began its mining operations, and Mr. Benham’s

expert testified that Ozark’s mining operations caused

the degradation in quality. This, coupled with the district court’s finding that Ozark unlawfully discharged

materials into Saline Creek’s wetlands, Benham I,

2015 WL 235759, at *7–9, sufficiently demonstrates

that Mr. Benham’s injury is fairly traceable to Ozark’s

unlawful actions.

Finally, the redressability element is handily met:

the injunctive relief and civil penalties sought by Mr.

Benham and ordered by the district court will restore

App. 6

the unlawfully filled wetlands and deter future violations. See Laidlaw, 528 U.S. at 185–86. Altogether, Mr.

Benham has Article III standing to bring his citizen

suit.

B. Mr. Benham’s Citizen Suit Notice Letter Was Adequate

Under Section 505 of the CWA, a plaintiff must

provide notice of a violation before commencing a citizen suit. 33 U.S.C. § 1365(b) (2012). We review the adequacy of a citizen suit notice letter de novo. Karr v.

Hefner, 475 F.3d 1192, 1196 (10th Cir. 2007). An adequate notice provides “sufficient information to permit

the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity

alleged to constitute a violation, the person or persons

responsible for the alleged violation, the location of the

alleged violation, [and] the date or dates of such violation.” Id. at 1200 (alteration in original) (quoting 40

C.F.R. § 135.3(a) (2006)). The purpose of this notice is

to give an alleged violator of the CWA “an opportunity

to bring itself into complete compliance with the Act

and thus likewise render unnecessary a citizen suit.”

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49, 60 (1987). A notice, then, must

not merely “generally orient[ ] the agency or violator as

to the type of violation.” Karr, 475 F.3d at 1200 (quoting Cal. Sportfishing Prot. All. v. City of West Sacramento, 905 F. Supp. 792, 799 (E.D. Cal. 1995)). Rather,

“the notice’s identification of the alleged violations

must be clear.” Id.

App. 7

In relevant part, Mr. Benham’s notice provided:

Discharges of dredged or fill material into

waters of the United States may only occur if

permitted by the Army Corps of Engineers

(herein the “ACOE”). 33 U.S.C. § 1311(a); 33

U.S.C. § 1344(a). Waters of the United States,

as defined in section 404, includes wetlands,

which are areas “inundated or saturated by

surface or ground water at a frequency and

duration sufficient to support, and that under

normal circumstances do support, a prevalence of vegetation typically adapted for life

in saturated soil conditions.” 33 C.F.R.

§ 328.3(b); see also U.S. v. Riverside Bayview

Homes, 474 U.S. 121, 131–32 & n.8 (1985). Saline Creek is surrounded by wetlands. A significant portion of your mining operations

have both dredged and filled these designated

wetlands. See Attachment 2. The ACOE has

no record of you being issued a section 404

permit for these dredge and fill activities.

Any action which results in the filling of

waters of the United States, including wetlands such as the ones you have filled, must

be permitted through the ACOE. 33 U.S.C. [§]

1311(a); 33 U.S.C. [§] 1342. You have violated

this section by placing large amounts of dirt,

sand, and gravel into the center of Saline

Creek without a permit in order to form a

more convenient access road for [your] trucks.

This road stretches underneath the S 4437

road and connects land owned by the Grand

River Dam Authority with land owned by you.

The attached photograph shows you filling

App. 8

this wetland on September 14, 2006. See Attachment 3. The location of your illegal discharges of fill material is identified on the

attached air photo at approximately the point

labeled “1.” See Attachment 2.

1 Aplee. Supp. App. 19. The notice describes the specific

pollutants (dirt, sand, and gravel), specific locations (a

road identified by description and aerial photograph),

the specific sections of the CWA that were violated (33

U.S.C. §§ 1311(a), 1342, 1344(a)), and a specific date of

a violation (September 14, 2006). These details provided Ozark with sufficient information to clearly

identify the violation and thus constitute adequate notice. See Karr, 475 F.3d at 1201 (comparing cases and

approving of a notice that listed “specific pollutants,

specific locations, and specific permits the defendant

was alleged to have violated”).

Ozark also contends that the district court erred

by allowing Mr. Benham to prosecute claims that were

not identified in his notice. But Mr. Benham’s notice

specifically mentions the road created within Saline

Creek. Accordingly, the district court’s determination

that Mr. Benham’s “allegations regarding the roadway

within Saline Creek and the filling of its surrounding

wetlands are within the scope of the Notice Letter,”

Benham I, 2015 WL 235759, at *9, is fully supported.

App. 9

C. The District Court Did Not Clearly Err by Finding That Ozark Violated the CWA

We review the district court’s legal conclusions de

novo and its factual findings for clear error, giving

great deference to credibility determinations. Raytheon Aircraft Co. v. United States, 590 F.3d 1112, 1118,

1120 (10th Cir. 2009). We may reverse only if the district court’s finding “is without factual support in the

record or if, after reviewing all the evidence, we are left

with a definite and firm conviction that a mistake has

been made.” Aquila, Inc. v. C.W. Mining, 545 F.3d 1258,

1263 (10th Cir. 2008) (quoting Keys Youth Servs., Inc. v.

City of Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001)).

After a bench trial, the district court found that

the testimony of Mr. Benham’s expert witness and the

records regarding the existence of filled wetlands “establish that the half-acre threshold for filled wetlands

requiring an individual permit has been surpassed”

and that “Ozark has discharged dredge and fill materials into Saline Creek in excess of one-half of an acre

without an individual permit as required under the

CWA.” Benham I, 2015 WL 235759, at *6–7. This finding came after the district court heard conflicting testimony at trial regarding the construction of the

roadway in Saline Creek. Ozark’s CEO testified that a

neighboring landowner had built the road prior to

Ozark’s purchase of the land in 1991. Id. at *6. But one

of the landowner’s employees attested that the landowner did no such thing and that “he has observed

Ozark employees maintaining, rebuilding, and driving

on the road.” Id. Further, Mr. Benham testified that

App. 10

Ozark began building the road in 2005 and extended it

over time as it mined gravel, and the road can be seen

in an aerial photograph taken in 2006 but does not appear in a photograph taken in 1991. Id. Based on this

evidence, the district court found that “Ozark constructed the road by placing dredge and fill material

into Saline Creek.” Id. at *7. It found Mr. Benham’s testimony credible because it was detailed and corroborated by photographs; by contrast, it found that the

CEO’s testimony “was often evasive and suffered from

a lack of recollection as to key issues” and was contradicted by the testimony of the neighboring landowner’s

employee. Id. The district court’s findings are not

clearly erroneous.

The district court then concluded that “Ozark’s

deposition of dredge and fill material in excess of . . .

one-half acre . . . constitutes a continuing violation of

Section 404 of the CWA that renders Ozark subject to

liability.” Id. at *9. It determined that Ozark’s violation

was “continuing” based on the premise that “[u]ntil a

pollutant, such as fill material, that has been placed in

a wetland is removed, its presence constitutes a continuing violation.”1 Id. at *8 (citing Sasser v. Adm’r, U.S.

EPA, 990 F.2d 127, 129 (4th Cir. 1993)). Ozark does not

contest this definition of a “continuing” violation;

1

Language from Justice Scalia’s concurrence in Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49

(1987), supports such a ruling: “When a company has violated an

effluent standard or limitation, it remains . . . ‘in violation’ of that

standard or limitation so long as it has not put in place remedial

measures that clearly eliminate the cause of the violation.” 484

U.S. at 69 (Scalia, J., concurring).

App. 11

instead, it challenges the adequacy of factual support

for such a finding. Having reviewed the underlying

support, we affirm the district court’s conclusion that

the roadway and filling of wetlands in Saline Creek

constitute a continuing violation of the CWA.

D. The District Court Did Not Abuse Its Discretion

by Admitting Evidence Prepared by Ozark’s

Withdrawn Expert

We review a district court’s admission of evidence

for abuse of discretion. Prager v. Campbell Cty. Mem’l

Hosp., 731 F.3d 1046, 1054 (10th Cir. 2013). The district

court’s finding that Ozark violated the CWA was

based, in part, on evidence created by Enercon, an environmental consulting firm that Ozark hired after receiving Mr. Benham’s citizen suit notice letter. See

Benham I, 2015 WL 235759, at *7 (“[T]he records regarding the existence of filled wetlands created by Enercon establish that the half-acre threshold for filled

wetlands requiring an individual permit has been surpassed.”). Ozark initially intended to call Enercon as

an expert witness at trial but later changed its mind.

On February 12, 2014, Ozark notified the court that it

was withdrawing its expert. It also objected to several

of Mr. Benham’s trial exhibits that contained material

previously obtained from Enercon on the basis that

Federal Rule of Civil Procedure 26(b)(4)(C)–(D) protected the documents from disclosure. Ozark renewed

its Rule 26 objections at trial and added that the exhibits were inadmissible hearsay; the district court

overruled its objections.

App. 12

Ozark’s reliance on Rule 26 as a means of excluding expert material is misplaced. Rule 26(b)(4)(C) and

(D) protect against the disclosure of attorney communications with testifying experts and facts known and

opinions held by nontestifying experts, respectively.

But while they protect against the discovery of this expert material, they have nothing to do with the admissibility of already-disclosed material. Mr. Benham

states that he acquired the Enercon documents

through an unopposed subpoena on August 19, 2012. If

the documents contained attorney-expert communications, a Rule 26(b)(4)(C) objection would have been appropriate at that time. And had Ozark withdrawn its

expert before the subpoena, a Rule 26(b)(4)(D) objection would also have been well founded. Nearly two

years after disclosure, though, Rule 26(b)(4) provides

no protection against admitting the documents as evidence at trial—even if Ozark no longer planned to call

its expert as a witness. Cf. SEC v. Koenig, 557 F.3d 736,

744 (7th Cir. 2009) (“Disclosure of the report ends the

opportunity to invoke confidentiality.”).

Additionally, Ozark has waived its hearsay argument by inadequately briefing the issue. Federal Rule

of Appellate Procedure 28(a)(8)(A) requires an argument to contain “appellant’s contentions and the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies.”

Ozark’s brief mentions that the district court admitted

the documents over Ozark’s hearsay objection but offers no explanation for why this was erroneous. As a

result, Ozark has waived its argument that the

App. 13

documents were inadmissible hearsay, see SCO Grp.,

Inc. v. Novell, Inc., 578 F.3d 1201, 1226 (10th Cir. 2009)

(“An issue or argument insufficiently raised in a

party’s opening brief is deemed waived.”), and we are

unable to say that the district court abused its discretion by admitting them into evidence.

E. Ozark Forfeited Its Constitutional Arguments

For the first time on appeal, Ozark argues that the

district court’s order of a conservation easement violates the Due Process and Takings Clauses of the Fifth

Amendment. As Ozark did not raise this theory before

the district court,2 the theory was forfeited and our review of the district court’s order is for plain error. See

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th

Cir. 2011). But Ozark did not argue for plain error review in its brief, and “the failure to argue for plain error and its application on appeal . . . marks the end of

the road for an argument for reversal not first presented to the district court.” Id. at 1131. Consequently,

we decline to consider Ozark’s constitutional arguments.3

2

Ozark had the opportunity to raise this argument in its objection to Mr. Benham’s proposed mitigation plan, Benham v.

Ozark Materials River Rock, LLC, No. 11-CV-339-JED-FHM

(N.D. Okla. Dec. 29, 2016), ECF No. 180, and its objection to Mr.

Benham’s supplement to his proposed mitigation plan, Benham

v. Ozark Materials River Rock, LLC, No. 11-CV-339-JED-FHM

(N.D. Okla. Jan. 26, 2017), ECF No. 183—but did not.

3

At oral argument, the parties were uncertain of the conservation easement’s duration. Our disposition does not prevent the

App. 14

F. The District Court Did Not Abuse Its Discretion

by Not Invoking the Primary Jurisdiction Doctrine

We review a district court’s decision to invoke the

primary jurisdiction doctrine for abuse of discretion.

TON Servs., Inc. v. Qwest Corp., 493 F.3d 1225, 1239

(10th Cir. 2007). The primary jurisdiction doctrine allows courts to stay proceedings or dismiss an action

without prejudice when “a decision by a court would

threaten the uniformity of a regulatory scheme or require the court to confront issues of fact outside of its

conventional experience” so that the parties can “seek

a decision before the appropriate administrative

agency.” S. Utah Wilderness All. v. Bureau of Land

Mgmt., 425 F.3d 735, 751 (10th Cir. 2005). Here, there

are no threats to the uniformity of a regulatory scheme

or issues outside the conventional experience of the

courts. In fact, Section 505 of the CWA explicitly contemplates that district courts have jurisdiction to hear

citizen suits. See 33 U.S.C. § 1365. Accordingly, the district court did not abuse its discretion by refusing to

stay proceedings or dismiss the action without prejudice under the primary jurisdiction doctrine. See Raritan Baykeeper v. NL Indus., Inc., 660 F.3d 686, 695 (3d

Cir. 2011) (noting that the primary jurisdiction doctrine would apply to CWA citizen suits only in exceptional cases, such as where a suit would disrupt a

formal administrative proceeding).

parties from seeking clarification from the district court on this

issue.

App. 15

Though framed as a primary jurisdiction issue, the

essence of Ozark’s argument is that Mr. Benham

should be prohibited from bringing his citizen suit because the Army Corps of Engineers is primarily responsible for the enforcement of the CWA. While it is

true that Section 505 would prohibit Mr. Benham’s suit

if the Corps were “diligently prosecuting” an enforcement action, see 33 U.S.C. § 1365(b)(1)(B), the facts presented at trial show that the Corps was not diligently

pursuing an enforcement action against Ozark. The

district court found that the Corps had conducted several inspections of Ozark’s operations by driving

through the property and had concluded each time

that there were no CWA violations. Benham I, 2015

WL 235759, at *4. Consequently, the Corps was not diligently prosecuting an enforcement action, and Mr.

Benham was entitled to bring his citizen suit.

For the first time on appeal, Ozark argues that the

CWA violation in the instant case covers the same set

of facts as a 2005 violation. As an action for a “wholly

past” violation would deprive the court of subject matter jurisdiction, see Gwaltney, 484 U.S. at 64, this argument can be made at any stage of the litigation, see

Champlin Petroleum Co. v. Ingram, 560 F.2d 994, 996

(10th Cir. 1977). However, even assuming that Mr. Benham’s suit overlaps with the 2005 violation (which Mr.

Benham contests), this is not an action for a “wholly

past” violation. Rather, the district court found that

Ozark’s deposits of dredge and fill material constitute

a “continuing” violation of the CWA, Benham I, 2015

WL 235759, at *9, over which a federal court has

App. 16

subject matter jurisdiction, see Gwaltney, 484 U.S. at

59. Consequently, the district court properly exercised

jurisdiction over Mr. Benham’s citizen suit.

Ozark also attempts to frame its primary jurisdiction argument as a ripeness issue, contending that the

Army Corps of Engineers has not made a final agency

determination regarding the delineation of wetlands in

Saline Creek. But Mr. Benham is not an “affected

party” subject to the Corps’s exhaustion of administrative remedies provision. See 33 C.F.R. §§ 331.2, 331.12

(2017). Moreover, Section 505 contains the “diligently

prosecuting” requirement, not an administrative exhaustion requirement. And the evidence shows that

the Corps was not diligently prosecuting an enforcement action against Ozark. The Corps’s CWA enforcement responsibilities therefore have no bearing on

whether Mr. Benham was able to bring suit in this

case.

In sum, the district court had jurisdiction over Mr.

Benham’s citizen suit, and invoking the primary jurisdiction doctrine would not have been appropriate.

AFFIRMED.

App. 17

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

DAVID BENHAM,

Plaintiff,

v.

OZARK MATERIALS

RIVER ROCK, LLC,

Defendant.

)

)

)

)

)

)

)

Civil Case No.

11-CV-339-JED-FHM

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

(Filed Jan. 16, 2015)

Plaintiff, David Benham, filed this citizen suit

seeking injunctive relief and civil penalties under

§§ 402 and 404 of the Clean Water Act, 33 U.S.C. § 1251

et seq. (“CWA”). Benham claims that defendant Ozark

Materials River Rock, LLC’s mining activities along

Saline Creek have adversely affected the environmental health of the creek and surrounding land. On September 24, 2013, the Court dismissed Benham’s § 402

claim as moot. (Doc. 122). On April 29 and 30, 2014, a

nonjury trial was held on Benham’s § 404 claim. Having considered the evidence and the parties’ submissions, the Court hereby enters its findings of fact and

conclusions of law pursuant to Fed. R. Civ. P. 52.1

1

At trial, Benham was given leave to submit the affidavit of

Steven Stough as an evidentiary supplement to that which was

received at trial. That submission was received on May 30, 2014.

(Doc. 157). On June 27, 2014, the parties submitted their respective

App. 18

I.

Findings of Fact2

1. As noted, this is an action seeking injunctive

relief and civil penalties pursuant to Section 404 of the

Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”), alleging discharges of dredge and fill material into Saline Creek and its surrounding wetlands in Mayes

County, Oklahoma. (See Complaint, Doc. 2 at ¶44).

2. Saline Creek has been designated as a “High

Quality Water” by the Oklahoma Water Resources

Board and serves as a reference stream for the State of

Oklahoma. (Transcript (“Tr.”) at 117:17-18; 229:8-16).

Plaintiff Benham’s

Relationship to Saline Creek

3. Plaintiff David Benham grew up on property

along Saline Creek and spent a significant amount of

his youth swimming, hunting, fishing, and otherwise

recreating in and alongside the creek. (Tr. at 221:17 –

222:1). Benham testified that he continues to recreate

in Saline Creek, but that Ozark’s operations have

degraded his ability to do so. (Tr. at 229:22 – 230:12).

For example, he stated that the creek is shallower and

slower and that wildlife such as minnows and crawdads are scarcer. (Tr. 230:18 – 231:3). Benham also

testified that the number of areas deep enough for

proposed findings of fact and conclusions of law. (Docs. 158 and

159).

2

Any conclusion of law more appropriately characterized as

a finding of fact shall be incorporated herein.

App. 19

swimming in the creek has been severely reduced. (Tr.

at 236:16-22).

4. Benham also testified about Saline Creek’s

importance to the local Cherokee culture. The confluence of Big Saline and Little Saline, which becomes Saline Creek, harbored two giant American Elm trees

that the Cherokees had historically used for cultural

rituals. (Tr. 235:22 – 236:8). The erosion of the creek

has washed out one of the elms and left the other “half

alive.” (Tr. at 236:10-13).

5. Benham intends to recreate in Saline Creek in

the future. (Tr. at 239:20-22).

Ozark’s Mining Operation

6. Defendant Ozark Materials River Rock, LLC

(“Ozark”) is a sand and gravel mining company that

operates on property adjacent to Saline Creek. (Tr. at

20:8-22). Ozark’s gravel mining operation is located in

Section 30, Township 21 North, Range 21 East, Mayes

County, Oklahoma. (Pretrial Order, Doc. 139 at 2).

Ozark dredges sand and gravel from the bed of Saline

Creek and processes the materials through a screening

plant on site, washing and separating the materials for

marketing. (Tr. at 21:24 – 22:12).

7. Brad Eastman is the chief executive of Ozark.

(Tr. at 20:8-10). Eastman testified that Ozark took over

a pre-existing mining operation in September 1991

and that excavation had taken place in the same or

App. 20

similar locations under the previous ownership. (Tr. at

268:1-13).

8. Ozark operates under a non-coal mining permit issued by the Oklahoma Department of Mines.

(Defendant’s Exhibits 21 and 22).

9. Ozark does not currently have an individual

Section 404 permit, but did at some point “[a] long time

ago.” (Tr. at 30:9-13). Mr. Eastman testified that he was

told by the Army Corps of Engineers (“ACOE”) that he

did not need such a permit. (Tr. at 30:9-13). A letter

regarding a Section 404 violation on the part of Ozark

issued by the ACOE dated March 2, 2005, suggests, but

does not explicitly state, that Ozark did not have a permit at that time. (Defendant’s Exhibit 19).

The Notice Letter

10. On or about March 8, 2011, Ozark was served

with a Notice of Intent to Sue (the “Notice Letter”)

from Benham, pursuant to Section 505 of the CWA.

(Pretrial Order, Doc. 139 at 2).

11. With respect to Benham’s Section 404 claim,

the Notice Letter stated as follows:

Discharges of dredged or fill material into

waters of the United States may only occur if

permitted by the Army Corps of Engineers

(herein the “ACOE”). 33 U.S.C. § 1311(a); 33

U.S.C. § 1344(a). Waters of the United States,

as defined in section 404, includes wetlands,

which are areas “inundated or saturated by

App. 21

surface or ground water at a frequency and

duration sufficient to support, and that under

normal circumstances do support, a prevalence

of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(b);

see also U.S. v. Riverside Bayview Homes, 474

U.S. 121, 131-32 & n. 8 (1985). Saline Creek is

surrounded by wetlands. A significant portion

of your mining operations have both dredged

and filled these designated wetlands. See Attachment 2. The ACOE has no record of you

being issued a section 404 permit for these

dredge and fill activities.

Any action which results in the filling of waters of the United States, including wetlands

such as the ones you have filled, must be permitted through the ACOE. 33 U.S.C. 1311(a);

33 U.S.C. 1342. You have violated this section

by placing large amounts of dirt, sand, and

gravel in to the center of Saline Creek without

a permit in order to form a more convenient

access road for its trucks. This road stretches

underneath the S 4437 road and connects

land owned by the Grand River Dam Authority with land owned by you. The attached photograph shows you filling this wetland on

September 14, 2006. See Attachment 3. The

location of your illegal discharges of fill material is identified on the attached air photo at

approximately the point labeled “1”. See Attachment 2. It is believed that you have discharged fill materials in numerous other

areas along Saline Creek, but because of the

secretive nature in which you conduct your

business, those violations have been difficult

App. 22

to document. To the extent such documentation can be found, Mr. Benham intends to

amend this notice so as to include those additional violations.

Additionally, it is believed that situs for the

current washing and sorting site is a wetland.

Thus, you currently are and have been engaging in sidecasting, which is the deposit of

dredged or excavated material from a wetland

into a different area of the same wetland.

Sidecasting has been held to be a discharge

of a pollutant that violates section 404 of

the CWA. See U.S. v. Deaton, 209 F.3d 331,

332-333 (4th Cir. 2000). The location of your

illegal discharges is identified on the attached air photo at approximately the point

labeled “3”. See Attachment 2. These activities began on or around May 15, 2010 and occur each time you excavate gravel from the

stream and dump it in your washing and sorting site.

Moreover, it is believed that your previous

washing and sorting site (located on land

leased from the Grand River Dam Authority)

was in a wetland. Such sidecasting activities

occurred from approximately July 1, 2005 to

May 15, 2010. The location of your illegal discharges is identified on the attached air photo

App. 23

at approximately the point labeled “4”. See Attachment 2.

(Plaintiff ’s Exhibit 1 at 5-6).3

12. The Court finds that the Notice Letter put

Ozark on notice that it was being accused of having

discharged dredge and fill material into Saline Creek

and its surrounding wetlands in violation of Section

404.

13. Following receipt of the Notice Letter, Ozark

consulted with the ACOE. (Plaintiff ’s Exhibit 32). ACOE

Regulatory Program Manager Ed Parisotto made a

record of his April 4, 2011 conversation with Randall

Beeson, Ozark’s environmental consultant, and Ozark’s

legal counsel, which notes that “[i]t was suggested

that Mr. Eastman hire an environmental professional/

consultant to perform a wetland delineation to establish, in fact, if any jurisdictional wetlands or waters are

located on the property and if so, their boundaries and

possible impacts.” (Plaintiff ’s Exhibit 32 at 2).

14. Following service of the Notice Letter, Benham timely filed this lawsuit on June 1, 2011. (Pretrial

Order, Doc. 139 at 2).

Ozark’s Engagement of Enercon Services, Inc.

15. After Ozark’s meeting with the ACOE, Ozark

engaged Enercon Services, Inc. (“Enercon”) to perform

3

Benham has abandoned the allegations in the Notice Letter

with respect to the current and former washing and sorting sites

being wetlands. (Doc. 159 at 3 n.1).

App. 24

a Section 404 impact analysis. (Tr. at 37:1-6; Plaintiff ’s

Exhibit 38). On October 17, 2011, Enercon provided

Ozark with its “Analysis of Project Impacts, Section

404 Permit Application, and Preliminary Compensatory Mitigation Plan” (the “Mitigation Plan”). (Plaintiff ’s Exhibit 38). Enercon’s Mitigation Plan noted that

Ozark’s operations had “affected likely jurisdictional

wetlands and a perennial stream (Saline Creek) within

the [Ozark] property.” (Plaintiff ’s Exhibit 38 at 1). Enercon’s Mitigation Plan proscribed restoration of wetlands

and stream areas that were “degraded or altered” as a

result of Ozark’s operations. (Id.)

16. In connection with its Mitigation Plan, Enercon performed a wetlands delineation and generated a

site map that shows aerial footage of Saline Creek and

Ozark’s area of operation. The aerial photograph contains an overlay depicting “Existing Wetlands” and

“Filled Wetlands.” (Plaintiff ’s Exhibit 17). The site map

indicates four areas of “Filled Wetlands” totaling .58 of

an acre. (Id.).

17. Enercon also created a document titled “Delineation of Potential Section 404 Issues” (the “Delineation”), dated November 1, 2011, which was provided

to the ACOE. (Plaintiff ’s Exhibit 33; Tr. at 53:12-20).4

The Delineation identified four areas that the ACOE

would likely deem jurisdictional wetlands. (Plaintiff ’s

Exhibit 33). Specifically, the Delineation stated that

4

The ACOE refers to such delineations as “preliminary jurisdictional determinations” because they remain preliminary until the ACOE formally approves them. (Tr. at 52:21 – 53:11).

App. 25

“[a]pproximately 0.46 acre of Section 404 technical

wetlands were identified within the area of delineation.” (Id. at 4).

18. Enercon’s Delineation does not make reference to the .58 acre of “Filled Wetlands” that appears

in the site map created for Ozark, nor is that site map

included in the materials provided to the ACOE. (See

Plaintiff ’s Exhibit 33). The areas depicted as filled wetlands in the site map created for Ozark (Plaintiff ’s Exhibit 17) are conspicuously absent from the site map

contained in the Delineation. (Compare Plaintiff ’s Exhibit 17 with Plaintiff ’s Exhibit 33 at Figure 3, Bateslabeled Benham 002565). As such, the ACOE was

never informed of the .58 acre of filled wetlands that

Enercon had identified and Parisotto testified that he

had never seen the site map depicting the filled wetlands. (Tr. at 57:16-19; 59:16-17). In fact, the Enercon

Delineation provided to the ACOE contains no reference whatsoever to any wetlands having been filled or

degraded. (See Plaintiff ’s Exhibit 33).

The Army Corps of Engineers’

Actions with Respect to Ozark

19. The ACOE did not perform a wetlands delineation of any kind with respect to the Ozark mining

site despite being asked to do so by Enercon. (Tr. at

58:22 – 59:15; 104:10-23).

20. The evidence at trial indicated that five site

visits were made by the ACOE to the Ozark mining operation from 2010-on. The ACOE’s April 4, 2011 Record

App. 26

of Conversation (Defendant’s Exhibit 9) indicates that

field inspections were made on June 17, June 29, and

October 6 of 2010. The ACOE created a record of field

inspection for the October 6, 2010 inspection and for

inspections which occurred on June 28, 2012, and July

3, 2013. (Defendant’s Exhibits 5, 6, and 7).

21. The ACOE’s three records of field inspections

are very similar. They note that each inspection was

performed by Parisotto and consisted of him driving

through the property and viewing the area where recent excavation activity had occurred. (See Defendant’s

Exhibits 5, 6, and 7). Each inspection concluded that

“[i]ncidental fall back of gravel” was present in the

area, but found no CWA violation. (See Defendant’s Exhibit 5 at 2; Defendant’s Exhibit 6 at 1-2; and Defendant’s Exhibit 7 at 2).

22. Parisotto did not testify as an expert witness.

(Tr. 97:19-24). When testifying about the October 6,

2010 site visit, he was clear that his inspection did not

occur while excavation was taking place and agreed

that, as such, he could not have witnessed “any placement of dredge or fill material” at that time. (Tr. at

98:17-23). It is unclear from the record whether excavation was taking place during his June 28, 2012 and

July 3, 2013 visits.

23. The referenced 2012 and 2013 records of field

inspections include photographs taken by Parisotto. It

is unclear the extent to which the 2012 photographs

include areas identified by Enercon as potential wetlands or filled wetlands. (See Defendant’s Exhibit 6).

App. 27

The 2013 photographs reference the “[a]reas identified

by Enercon Services within the November 1, 2011 Preliminary Jurisdictional Determination as possible

‘wetland areas.’ ” (Defendant’s Exhibit 7 at 3). The report notes that the areas “seem to be functioning well.”

(Id.). Parisotto testified that he “found no evidence of

the placement of dredge or fill material” in those areas.

(Tr. at 83:24 – 84:3). As noted, however, Parisotto also

testified that he had not seen the areas identified by

Enercon as filled wetlands until presented with Plaintiff ’s Exhibit 17 at trial. (Tr. at 57:16-19; 59:16-17).

Dr. Patterson’s Testimony Regarding

Saline Creek and its Surrounding Wetlands

24. Dr. Steve Patterson testified as an expert witness on behalf of Benham.

25. The Court finds that Dr. Patterson is qualified as an expert in his field of restoration ecology, and

his testimony has materially assisted the Court in

reaching its decision. Ozark had no objection to Dr. Patterson’s admission as an expert. (Tr. at 112:15-16).

26. Dr. Patterson performed a wetlands delineation with respect to Ozark’s mining site and the respective area of Saline Creek. (Plaintiff ’s Exhibit 58). He

examined the areas previously identified by Enercon

as wetlands that had not been filled (see Plaintiff ’s Exhibit 33) and used those areas as a reference for comparison purposes. (Plaintiff ’s Exhibit 58).

App. 28

27. Dr. Patterson modified the delineations of the

wetlands identified by Enercon as W-1, W-2, W-3, and

W-4, finding that W-1 consisted of .2 acres, W-2 consisted of .51 acres, W-3 consisted of .25 acres, and W-4

was no longer existent as a result of the expansion of

an open water pond. (Tr. 139:20-22; 163:1 – 166:25; also

compare Plaintiff ’s Exhibit 58 at 9 with Plaintiff ’s Exhibit 33 at 5).

28. Dr. Patterson observed discharge of fill material into W-1 in “[m]ultiple locations” (Tr. at 145:22 –

147:6); “[i]n various locations along the perimeter” and

in chunks throughout W-2 (Tr. at 152:15-22); and recently deposited fill material along the “whole northern edge” of W-3 (Tr. at 154:20 – 155:11). He stated that

these discharges of fill material were such that they

would probably not be seen if one were merely driving

through the mining site, as the ACOE’s records state

Parisotto did. (Tr. at 143:21 – 144:1).

29. Dr. Patterson also opined about significant

impacts of the Ozark mining site in the form of loss of

riparian and wetland vegetation and reduction in linear feet of the stream channel. (See Plaintiff ’s Exhibit

58; Tr. at 169:17 – 175:3). These harms were not specifically referenced in Benham’s Notice Letter. (See

Plaintiff ’s Exhibit 1).

30. Dr. Patterson concluded that more than onehalf acre of wetlands contained discharges of fill material and was otherwise disturbed, i.e., earth having

been moved and vegetation removed, by Ozark’s mining activities. (Tr. 167:24 – 168:17).

App. 29

31. Ozark did not present an expert in opposition

to Benham’s Section 404 claim.5

32. Benham’s Section 404 claim asserts that the

roadway from which Ozark’s mining activities were, in

part, conducted is, in itself, a violation of the CWA because Ozark placed dredge and fill material within Saline Creek to create the roadway. (See Doc. 2; Plaintiff ’s

Exhibit 1 at 5). The road at issue stretches under S

4437 road (referred to as the “pumpback road” at trial)

and connects land owned by the Grand River Dam Authority (“GRDA”) with land owned by Ozark. (Plaintiff ’s Exhibit 1 at 5).

33. There was conflicting testimony at trial with

respect to the construction of this roadway. Mr. Eastman testified that Ozark did not create the road and

that it was constructed before he purchased the mining

operation in 1991. (Tr. at 269:6-13). Eastman further

stated that it was his belief that the GRDA had created

the road. (Tr. at 277:11-16).

34. In contrast, Benham testified that he observed the road’s construction in the years that followed Ozark’s commencement of operations on the

property in 1991. (Tr. at 224:7-24). He estimated that

construction of the road began around 2005. (Tr. at

226:24 – 227:5). Benham stated that the road was constructed in small increments so that gravel could be

mined in the adjacent area of Saline Creek, and when

5

Ozark elected to withdraw the expert it had identified, Randall Beeson, upon plaintiff ’s agreement that he would not call Mr.

Beeson as a witness in his case-in-chief. (Tr. at 209:24-210:1).

App. 30

the area was exhausted, new gravel would be placed in

the creek to extend the road further. (Tr. at 224:12-24).

35. Benham was permitted at trial to submit a

post-trial affidavit of a GRDA official because of difficulties in securing his attendance at trial as a rebuttal

witness. (See page 1, footnote 1). Steve Strough, Superintendent of Field Construction and Excavation for the

GRDA, has been involved in all field construction and

excavation activities in and around Saline Creek since

April 1989. (Doc. 157-1). Strough attested that he is

familiar with the road at issue and that the GRDA

did not build the road and does not maintain it, but

that he has observed Ozark employees maintaining,

rebuilding, and driving on the road. (Id. at 2). This

stands in contrast to Eastman’s testimony that he believed GRDA had constructed the road. (See Tr. at

277:11-16).

36. The aerial photographs of the mining site

produced during trial appear to support Benham’s testimony that the road was constructed after Ozark took

over operations at the site. In Plaintiff ’s Exhibit 22,

a photograph taken on October 6, 2006, the road is

clearly present, whereas in Plaintiff ’s Exhibit 24, taken

on March 31, 1991, the road does not appear to be present, though the photograph is low resolution and

monochromatic. (Compare Plaintiff ’s Exhibits 22 and

24).

37. Based upon the foregoing, the Court accepts

Benham’s version of events with respect to construction of the road. Eastman’s testimony that Ozark did

App. 31

not construct the road was not credible in light of Benham’s detailed testimony regarding how Ozark constructed the road; Plaintiff ’s Exhibit 24, which shows

that the road was not present in 1991; and the GRDA

testimony that GRDA did not construct the road. In

addition, Eastman’s testimony was often evasive and

suffered from a lack of recollection as to key issues. Accordingly, the Court finds that Ozark constructed the

road by placing dredge and fill material into Saline

Creek.

38. The Court also finds that Ozark has discharged dredge and fill materials into Saline Creek in

excess of one-half of an acre without an individual permit as required under the CWA.6 Dr. Patterson’s testimony and the records regarding the existence of filled

wetlands created by Enercon establish that the halfacre threshold for filled wetlands requiring an individual permit has been surpassed. While Mr. Parisotto

testified that he did not observe wetlands containing

dredge and fill material, he was not privy to Enercon’s

findings in that respect and the record does not establish that his inspections were performed with the same

rigor as that of Dr. Patterson’s and Enercon’s investigations. Moreover, Parisotto did not perform a wetlands delineation, but delineations were performed by

both Dr. Patterson and Enercon.

6

As will be discussed fully in the Conclusions of Law, the

ACOE nationwide permit for non-coal mining permits up to onehalf acre of impact to wetlands before an individual permit is required. (See infra Conclusions of Law, paragraph 8).

App. 32

Factors Relevant to Civil Penalties

39. Ozark’s mining operation had a gross income

of $1,670,411 between 2007 and 2012. This number being the total for reported incomes of $292,920 in 2007;

$351,781 in 2008; $203,926 in 2009; $240,373 in 2010;

$289,813 in 2011; and $291,598 in 2012. (Plaintiff ’s

Exhibits 42-47).

40. Dr. Patterson estimated the costs of restoration of the filled wetlands to be $7,500 for wetland creation and $5,000 for wetland enhancement. (Plaintiff ’s

Exhibit 58). No estimate was given with respect to remediation of the roadway constructed within Saline

Creek.

41. Ozark was aware that it was in violation of

the CWA as a result of Enercon’s report dated October

17, 2011, in which CWA violations are identified and a

mitigation plan is proposed, but did not provide this

information to the ACOE. (Plaintiff ’s Exhibit 38).

42. Ozark has been found to be in violation of the

CWA previously by the ACOE on March 2, 2005. (Defendant’s Exhibit 19). Specifically, the ACOE found

that Ozark’s operations resulted in the placement of

dredge and fill material within the jurisdictional limits

of Saline Creek. (Id.).

App. 33

Conclusions of Law7

II.

1. This Court has subject matter jurisdiction

pursuant to 28 U.S.C. § 1331 (federal question), as this

action arises under the Clean Water Act, 33 U.S.C.

1251 et seq.

2. Venue is proper under 33 U.S.C. § 1365 because the complained of violations occurred within the

Northern District of Oklahoma.

3. The Court has determined that Benham has

standing to maintain this action and the facts elicited

at trial reinforce the Court’s prior conclusion. (See Doc.

122).

4. Under Section 1365 of the CWA, “[t]he district

courts shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties,

to enforce such an effluent standard or limitation, or

such an order, or to order the Administrator to perform

such act or duty, as the case may be, and to apply any

appropriate civil penalties under section 1319(d) of

this title.” Id. at § 1365(a).

5. The Clean Water Act is a pollution control

statute that establishes a comprehensive program designed to “restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.” 33

U.S.C. § 1251(a). To achieve this goal, the CWA prohibits the discharge of pollutants, including dredged or fill

material, into navigable waters unless authorized by a

7

Any finding of fact more appropriately characterized as a

conclusion of law shall be incorporated herein.

App. 34

CWA permit. 33 U.S.C. § 1311(a); 33 U.S.C. § 1362(6)

(listing rock and sand, among other things, as pollutants under the CWA).

6. The CWA defines “navigable waters” as “waters of the United States,” which term, in turn, is defined by regulation to include certain wetlands. 33

U.S.C. § 1362(7); 33 C.F.R. § 328.3(a)-(b). “The phrase

‘the waters of the United States’ includes only those

relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that

are described in ordinary parlance as ‘streams[,] . . .

oceans, rivers, [and] lakes.’ ” Rapanos v. United States,

547 U.S. 715, 739 (2006) (alteration in original). Wetlands are covered by the CWA “if the wetlands, either

alone or in combination with similarly situated lands

in the region, significantly affect the chemical, physical, and biological integrity of other covered waters

more readily understood as ‘navigable.’ ” Id. at 780 (Kennedy, J., concurring).

7. Section 404 of the CWA authorizes the ACOE

to regulate discharges of dredge and fill material into

navigable waters through the issuance of permits. 33

U.S.C. § 1344. The ACOE may issue either individual

permits on a case-by-case basis, or general permits for

“categories of activities” on a state, regional, or nationwide basis. Id.

8. Effective June 5, 2000, the ACOE created a

nationwide permit for mining activities, Nationwide

Permit No. 44, which covers mining activities that do

not disturb more than one-half acre of wetland or 300

App. 35

linear feet of stream bed. See Final Notice of Issuance

and Modification of Nationwide Permits, 65 Fed. Reg.

12818-01. Mining activity which exceeds these limits

requires an individual permit under Section 404.

9. Until a pollutant, such as fill material, that

has been placed in a wetland is removed, its presence

constitutes a continuing violation. Sasser v. Adm’r,

U.S. E.P.A., 990 F.2d 127, 129 (4th Cir. 1993) (citing

United States v. Ciampitti, 669 F. Supp. 684, 700

(D.N.J. 1987); United States v. Cumberland Farms, 647

F. Supp. 1166, 1183-84 (D. Mass. 1986), aff ’d 826 F.2d

1151 (1st Cir.1987)); see also United States v. Reaves,

923 F. Supp. 1530, 1534 (M.D. Fla. 1996) (“discharge of

dredged or fill materials into wetlands on the site is a

continuing violation for as long as the fill remains”).

10. Under Section 404, notice must be given to

violators before a citizen suit can be commenced. The

notice must provide “sufficient information to permit

the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity

alleged to constitute a violation, the person or persons

responsible for the alleged violation, the location of the

alleged violation, [and] the date or dates of such violation.” Karr v. Hefner, 475 F.3d 1192, 1200 (10th Cir.

2007) (quoting 40 C.F.R. § 135.3(a)). “The guiding principle is that the purpose of notice to the alleged violator

is to give it an opportunity to bring itself into complete

compliance with the Act and thus likewise render unnecessary a citizen suit.” Id. (internal quotations omitted).

App. 36

11. The Court finds that Saline creek and its surrounding wetlands are “waters of the United States”

subject to regulation under the CWA.

12. The Court finds that Ozark’s deposition of

dredge and fill material in excess of the one-half acre

limit permitted under Nationwide Permit No. 44 constitutes a continuing violation of Section 404 of the

CWA that renders Ozark subject to liability. Specifically, the Court finds that the roadway constructed

within Saline Creek and the filling of wetlands identified by Enercon in Plaintiff ’s Exhibit 17 and by Dr. Patterson constitute Section 404 violations committed by

Ozark.8

13. The Court finds that Ozark was required to

have an individual Section 404 permit as a result of

these discharges, but did not and did not apply for one.

14. The Court finds that plaintiff ’s allegations

regarding loss of linear feet of stream channel and

riparian vegetation (see supra Findings of Fact) are

beyond the scope of the Notice Letter. Plaintiff ’s allegations regarding the roadway within Saline Creek

8

Ozark objected to the admission of Plaintiff ’s Exhibit 17 at

trial, which the Court overruled at that time. (Tr. at 57:1-14). No

objection was raised to the admission of this exhibit in the proposed pretrial order and Ozark therefore waived the right to object to its admission at trial. See Fed. R. Civ. P. 26(a)(3)(B) (“An

objection not so made except for one under Federal Rule of Evidence 402 or 403 – is waived unless excused by the court for good

cause.”). Ozark has not demonstrated good cause for its failure to

timely object and the exhibit is not excludable under Rules 402 or

403.

App. 37

and the filling of its surrounding wetlands are within

the scope of the Notice Letter. The destruction of wetland vegetation is implicit in plaintiff ’s allegations regarding the filling of wetlands and is therefore within

the scope of the Notice Letter.

15. Plaintiff seeks injunctive relief and civil penalties as a result of Ozark’s Section 404 violations.

16. The restoration of unlawfully filled wetlands

is an available type of injunctive relief contemplated

by the CWA. 33 U.S.C. § 1319. “Courts have recognized

a mandatory duty to restore intentionally filled wetlands, unless the equities weigh against restoration.”

United States v. Donovan, 466 F. Supp. 2d 595, 598 (D.

Del. 2006) (citing United States v. Cumberland Farms,

826 F.2d 1151, 1161-65 (1st Cir. 1987), cert. denied, 484

U.S. 1061 (1988); United States v. Van Leuzen, 816

F. Supp. 1171, 1180 (S.D. Tex. 1993)). When evaluating

the propriety of ordering restoration, three factors are

generally considered: “(1) whether the proposal will confer the maximum environmental benefits, (2) whether

the proposal is achievable as a practical matter, and

(3) whether the proposal bears an equitable relationship to the degree and kind of wrong it is intended to

remedy.” Id. (citing United States v. Deaton, 332 F.3d

698, 714 (4th Cir. 2003)).

17. Taking these factors into consideration, the

Court finds that restoration should be and is hereby

ordered. The extent of such restoration will be determined upon the filing of a proposed restoration plan by

Ozark.

App. 38

18. Ozark shall file its proposed restoration plan

within 60 days of the date of this Opinion and Order.

Such proposal shall take into account the three factors

cited above: maximum environmental benefit, achievability of the proposal, and equities of restoration.

19. Benham shall submit its response to the proposed restoration plan within 30 days of the date that

Ozark’s plan is filed.

20. The parties have had significant difficulties

in reaching consensus on issues throughout this litigation. Nevertheless, the Court directs the parties to confer with respect to a potential joint restoration plan

that can be carried out more expeditiously and economically without the need for further disputes over

issues that have now been determined by the Court.

21. The Court will thereafter determine an appropriate course of action with respect to restoration of

the areas subject to the Section 404 violations.

22. The CWA also provides for civil penalties

“not to exceed $25,000 per day for each violation.” 33

U.S.C. § 1319. The Act provides:

In determining the amount of a civil penalty

the court shall consider the seriousness of the

violation or violations, the economic benefit (if

any) resulting from the violation, any history

of such violations, any good-faith efforts to

comply with the applicable requirements, the

economic impact of the penalty on the violator,

and such other matters as justice may require.

Id.

App. 39

23. Benham seeks civil penalties in the amount

of $2,573,750, which represents the alleged avoidance

of $1,029,500 in compliance costs multiplied by 2.5, on

the basis that Ozark concealed evidence of its impacts

to wetlands from the ACOE. Penalties within this

range would be excessive and are rejected.

24. However, taking into account these factors

and the Court’s Findings of Fact with respect to Ozark’s

actions, the Court finds that imposition of a civil penalty is warranted in this case in the amount of $35,000.

This penalty is appropriate in light of Ozark’s modest

annual gross revenue and its level of culpability with

respect to concealment of its violations.

SO ORDERED this 16th day of January, 2015.

/s/ John E. Dowdell

JOHN E. DOWDELL

UNITED STATES

DISTRICT JUDGE

App. 40

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF OKLAHOMA

DAVID BENHAM,

Plaintiff,

v.

OZARK MATERIALS

RIVER ROCK, LLC,

Defendant.

)

)

)

)

)

)

)

)

Case No.

11-CV-339-JED-FHM

OPINION AND ORDER

(Filed Sep. 24, 2013)

The Court has for its consideration defendant’s

(First) Motion to Stay Proceedings (Doc. 58), defendant’s Motion to Strike Plaintiff ’s Response Brief to Defendant’s Motion to Stay Along with Exhibits and

Request for Emergent and Immediate Relief Including

Admonishing Plaintiff ’s Lawyers for Failure to Comply with this Court’s Standards of Conduct (Doc. 63),

Plaintiff ’s Motion to Provide Supplemental Factual Information in Opposition to Defendant’s Motion to Stay

Proceedings (Doc. 66), and defendant’s (Second) Motion to Stay Proceedings (Doc. 97).

BACKGROUND

Plaintiff David Benham filed this citizen suit

seeking injunctive relief and civil penalties under

§§ 402 and 404 of the Clean Water Act, 33 U.S.C. § 1251

et seq. (“CWA”). Benham claims that defendant Ozark

App. 41

Materials River Rock, LLC’s (“Ozark”) mining activities along Saline Creek, which has been designated as

a “High Quality Water” by the Oklahoma Water Resources Board, have adversely affected the environmental health of the creek and surrounding land.

Ozark is engaged in the business of gravel mining

and thus excavates rock from the bed of Saline Creek

and washes and sorts those materials on nearby

land. Benham’s lawsuit alleged that Ozark was and is

operating its mining activities in and around Saline

Creek in violation of the CWA by, among other things,

discharging pollutants into the water, failing to obtain

necessary permits, and discharging dredge and fill

materials into the creek and surrounding wetlands

without a permit. On September 24, 2013, the Court

entered an Opinion and Order on defendant’s Motion

to Dismiss (Doc. 122), which dismissed plaintiff ’s

§ 402 claim as moot. Benham’s claim under § 404,

which alleges unlawful dredge and fill activity by

Ozark, remains.

DISCUSSION

A. Defendant’s [First] Motion to Stay (Doc. 58)

In its first stay motion, Ozark argues that this litigation should be stayed to make way for a legal malpractice action filed by Ozark against plaintiff ’s

counsel in state court. Ozark argues that a stay will

prevent an unnecessary expenditure of judicial resources and would not result in prejudice to plaintiff.

Benham opposes a stay, arguing primarily that Ozark

App. 42

has not met its burden of showing a likelihood of success on the merits or irreparable harm.

This Court has the inherent authority to control

its docket, which includes the power to stay cases in

the interests of judicial economy. United Steelworkers

of America v. Oregon Steel Mills, Inc., 322 F.3d 1222,

1227 (10th Cir. 2003). “The power to stay proceedings

is incidental to the power inherent in every court to

control the disposition of the causes on its docket with

economy of time and effort for itself, for counsel, and

for litigants.” Landis v. North American Co., 299 U.S.

248, 254 (1936). The Tenth Circuit has suggested several factors to guide courts when considering whether

to issue a stay, including “[1] whether the defendants

are likely to prevail in the related proceeding; [2]

whether, absent a stay, the defendant will suffer irreparable harm; [3] whether the issuance of a stay will

cause substantial harm to the other parties to the proceeding; and [4] the public interests at stake.” United

Steelworkers of America, 322 F.3d at 1227.

The Court finds that Ozark has not made a strong

showing of likelihood of success on the merits. Indeed,

Ozark did very little to explain its claims in the

collateral proceeding. Ozark’s legal malpractice claim

appears to be premised upon the allegation that plaintiff ’s counsel breached fiduciary duties owed to Ozark

by taking a position adverse to Ozark where there is

alleged to have been a prior attorney-client relationship between plaintiff ’s counsel and Ozark. Plaintiff ’s

counsel, Jason Aamodt, and defendant’s counsel,

Wilfred Wright, were formerly associated as Aamodt &

App. 43

Wright, PC, in Tulsa, Oklahoma. In approximately

November of 2007, Mr. Wright – Ozark’s counsel in this

proceeding – began representing Ozark in connection

with litigation which the Grand River Dam Authority

(“GRDA”) brought against Ozark. Mr. Aamodt attests

that he had no knowledge of this representation; he

had no participation in the representation; and that

Mr. Wright had begun essentially practicing alone in

Claremore, Oklahoma, at the time – completely independent of Mr. Aamodt.1 It was not until July 2008 that

each attorney formed separate firms.

Benham argues that, under the circumstances, he

breached no ethical rules or fiduciary duties. Using Oklahoma Rules of Professional Conduct 1.7 and 1.9 as

guideposts, Benham posits that Ozark’s legal malpractice action is likely to fail because he neither gained

confidential information with respect to Ozark, nor

took a position adverse to a current client.2 The Court

agrees, in light of the record before it, that Ozark faces

a very high hurdle with respect to prevailing on its

claims against plaintiff ’s counsel. Rule 1.9 states in

pertinent part:

(b) A lawyer shall not knowingly represent a

person in the same or a substantially related

matter in which a firm with which the lawyer

1

Mr. Aamodt also contends that no conflicts check was initiated by Mr. Wright, thus adding to Mr. Aamodt’s asserted ignorance of the litigation between Ozark and the GRDA.

2

While the Rules do not form the basis for a cause of action

for legal malpractice, they do serve as a relevant standard of conduct for attorneys and are often cited in legal malpractice cases.

App. 44

formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired

information protected by Rules 1.6 and

1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

Okla. R. Prof. Cond. 1.9 (italics added). Simply stated,

to violate this rule, a lawyer would have to represent a

client that is adverse to a former client whom he

gained confidential information from in a case that is

substantially related to the current representation,

and do so without informed consent. This litigation is

unlikely to be considered substantially related to the

GRDA litigation, which was essentially an eviction action involving land rights. The case before this Court

concerns alleged violations of the CWA which have little, if anything, to do with the property rights of the

GRDA. In addition, Mr. Aamodt has attested that he

gained no information regarding Ozark which is protected by Rules 1.6 and 1.9(c).

Rule 1.7 likewise does not appear to be implicated

under the circumstances before this Court. Rule 1.7

prohibits representing a current client who is directly

adverse to another current client. According to Benham, Ozark contends that, at the time Mr. Aamodt began representing Benham in this litigation, he was

also representing Ozark because Aamodt & Wright, PC

App. 45

had not yet dissolved. Given that Mr. Aamodt and Mr.

Wright started new firms in 2008 and practiced completely independently, this claim seems to this Court to

be unlikely to succeed, especially given that the case

sub judice was not filed until June of 2011.3

Ozark has not demonstrated that it is likely to succeed on the merits of its collateral lawsuit. Accordingly,

this factor weighs against a stay of this litigation.

The remaining factors also counsel against a stay

of this case. First, Ozark has failed to allege any irreparable harm. The harm alleged by Ozark – a continuing breach of fiduciary duties by plaintiff ’s counsel –

can be remedied by damages should it prevail in its legal malpractice case. Second, a stay will simply result

in further delay for Benham in the prosecution of his

claims against Ozark, and if Benham’s lawsuit is

meritorious, further harm to the environment. Third,

public interest favors compliance with federal environmental statutes and expeditious resolution of civil litigation. Given these considerations, a stay based upon

the collateral state court litigation is unwarranted.

Ozark’s first Motion to Stay (Doc. 58) is thus denied.

B. Defendant’s Motion to Strike (Doc. 63)

Ozark’s Motion to Strike (Doc. 63) asks the Court

to strike plaintiff ’s response to Ozark’s first Motion to

3

Aamodt & Wright, PC’s formal dissolution occurred in November, 2011, by order in Tulsa County District Court. (See Doc.

58, at 3).

App. 46

Stay (Doc. 62). Ozark argues that the information contained in the response and some of the accompanying

evidentiary materials which discuss the breakdown in

relationship between former shareholders of Aamodt

& Wright, PC, Jason Aamodt and Wilfred Wright, is

scandalous and irrelevant. The Court finds that the

materials do not warrant being stricken under Fed. R.

Civ. P. 12(f ) as they are not “redundant, immaterial,

impertinent, or scandalous.” While the referenced information is only tangentially related to the issues presented in the Motion to Stay, the materials do not meet

the standard for being stricken. Ozark’s Motion to

Strike (Doc. 63) is therefore also denied.

C. Plaintiff ’s Motion to Provide Supplemental

Factual Information in Opposition to Defendant’s Motion to Stay Proceedings (Doc. 66)

Plaintiff seeks to supplement his response to defendant’s first Motion to Stay (Doc. 62). Plaintiff provides the supplemental information within his motion

to supplement, which plaintiff argues demonstrates

that Ozark’s corporate representative, Randy Beeson,

acknowledged in his deposition that plaintiff ’s counsel

did not provide legal services to Ozark. Ozark filed its

response out of time (see Doc. 76). Thus, plaintiffs motion is deemed confessed. See LCvR 7.2. Plaintiff ’s Motion to Provide Supplemental Factual Information in

Opposition to Defendant’s Motion to Stay Proceedings

(Doc. 66) is granted and the Court has considered the

supplemental information provided within the motion.

App. 47

D. Defendant’s [Second] Motion to Stay Proceedings (Doc. 97)

Ozark seeks a second stay premised upon the doctrine of primary jurisdiction. Ozark argues that the

Court should defer to the ODEQ and Army Corps’ expertise in monitoring and enforcing compliance with

the CWA issues presented by Benham’s claims.

The common law doctrine of primary jurisdiction

provides courts with flexible discretion to defer adjudication of certain matters while a specialized administrative agency is exercising jurisdiction over those

matters. Specifically, primary jurisdiction applies

“where a claim is originally cognizable in the courts,

and comes into play whenever enforcement of the

claim requires resolution of issues which, under a regulatory scheme, have been placed within the special

competence of an administrative body.” United States

v. Western Pacific Railroad Co., 352 U.S. 59, 64 (1956).

Two policy goals underlie this doctrine: “(1) to ensure

‘desirable uniformity in determinations of certain administrative questions;’ and (2) to ‘promote resort to

agency experience and expertise where the court is

presented with a question outside its conventional experience.’ ” B.H. v. Gold Fields Mining Corp., 506

F. Supp. 2d 792, 803 (N.D. Okla. 2007) (quoting Williams Pipe Line Co. v. Empire Gas Corp., 76 F.3d 1491,

1496 (10th Cir. 1996)). If an administrative agency has

primary jurisdiction over a matter, the proper course

for a court is to stay the case until the administrative

agency has completed its work. Id.

App. 48

Courts have generally analyzed five factors in

determining whether the primary jurisdiction doctrine

is applicable. Id.; see also Marshall v. El Paso Natural

Gas Co., 874 F.2d 1373, 1377 (10th Cir. 1989);

Schwartzman, Inc. v. Atchison, Topeka & Santa Fe

Railway, 857 F.Supp. 838 (D.N.M. 1994). Those factors

are: (1) whether the court is being called upon to consider factual issues outside the conventional experience of judges; (2) whether defendant could be subject

to conflicting orders; (3) whether agency proceedings

have already begun; (4) whether the agency has shown

diligence in resolving the issue; and (5) the type of relief requested. B.H., supra, 506 F. Supp. 2d at 803.

First, this case presents facts which venture somewhat outside the realm of typical judicial experience.

Benham’s remaining §404 claim is based upon alleged

discharge of dredge and fill materials into Saline Creek

and surrounding wetlands. While these issues are

somewhat technical and specialized, they are not so

complex as to warrant abstention.

Second, Ozark would not be subject to conflicting

orders from the Court and the relevant agencies at issue because, as noted, plaintiff ’s § 402 claim has been

dismissed. The issues raised by Benham’s § 402 claim

were the subject of ODEQ’s Consent Order. The remaining claim relates to issues over which the Army

Corps exercises jurisdiction. Benham’s main contention in this respect seems to be that the Army Corps is

simply wrong in its failure to recognize continuing violations of the CWA. The Army Corps has performed

inspections of Ozark’s operation and has thus far

App. 49

declined to take action. Hence, there is, in essence, no

agency action to which the Court should defer. Doing

so would be akin to finding that plaintiff ’s claim lacks

merit because the agency did not make a finding that

there has been a violation – something the Court declined to do in response to the invitation presented by

Ozark’s motion to dismiss. Because the Army Corps

has not placed Ozark under any order with respect to

Benham’s § 404 allegations, a favorable ruling for Benham would not result in a conflicting order.

Third, as noted above, the agency proceedings instituted by ODEQ are no longer relevant to the claim

before the Court. No action has been taken by the

Army Corps. Hence, this factor weighs against the application of primary jurisdiction.

Fourth, Benham has alleged in substance that the

Army Corps has failed to act on the merits of his allegations. The materials submitted by Ozark demonstrate the Army Corps performed an inspection as

recently as July of 2013. Benham disagrees with the

conclusions reached by the Army Corps, but he has provided no evidence that the Army Corps has failed to act

diligently on the information it has received.

Finally, the type of relief sought by Benham –

injunctive relief and civil penalties – would ordinarily

weigh in favor of primary jurisdiction abstention.

“Primary jurisdiction will often be invoked when a

plaintiff seeks injunctive relief, because there is the

greatest likelihood that a court’s order will interfere

with administrative agency’s proceedings.” B.H., 506

App. 50

F. Supp. 2d at 805. However, because the Army Corps

has not taken formal action regarding Benham’s § 404

allegations – other than inspecting Ozark’s operations

– the Court could issue civil penalties and injunctive

relief without interfering with any agency proceeding.

In light of the Court’s analysis of the above factors,

the Court finds that Benham’s claims should not be

stayed under the doctrine of primary jurisdiction. Accordingly, defendant’s second Motion to Stay Proceedings (Doc. 97) is denied.

CONCLUSION

IT IS THEREFORE ORDERED that:

Defendant’s (First) Motion to Stay Proceedings

(Doc. 58) is denied.

Defendant’s Motion to Strike Plaintiff ’s Response

Brief to Defendant’s Motion to Stay Along with Exhibits and Request for Emergent and Immediate Relief Including Admonishing Plaintiff ’s Lawyers for Failure to

Comply with this Court’s Standards of Conduct (Doc.

63) is also denied.

Plaintiff ’s Motion to Provide Supplemental Factual Information in Opposition to Defendant’s Motion

to Stay Proceedings (Doc. 66) is granted.

And Defendant’s (Second) Motion to Stay Proceedings (Doc. 97) is denied.

IT IS FURTHER ORDERED THAT the deadline for trial briefs and exchange of demonstrative

App. 51

exhibits, and the pretrial conference and trial settings

are hereby stricken, to be reset following the Court’s

ruling as to the plaintiff ’s motion for partial summary

judgment and related filings.

Finally, the “Unagreed Pretrial Order” submitted

to the Court on September 20, 2013 is also stricken. A

deadline for submission of an Agreed Pretrial Order

shall be provided along with new scheduling deadlines.

SO ORDERED this 24th day of September, 2013.

/s/ John F. Dowdell

JOHN F. DOWDELL

UNITED STATES

DISTRICT JUDGE

App. 52

(1)

33 U.S.C. § 1344

(a)

DISCHARGE INTO NAVIGABLE WATERS AT SPECIFIED

DISPOSAL SITES

The Secretary may issue permits, after notice and

opportunity for public hearings for the discharge of

dredged or fill material into the navigable waters at

specified disposal sites.

*

(d)

*

*

“SECRETARY” DEFINED

The term “Secretary” as used in this section means the

Secretary of the Army, acting through the Chief of Engineers. * * *

(f )

NON-PROHIBITED DISCHARGE OF DREDGED OR FILL

MATERIAL

(1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material—

*

*

*

(B)

for the purpose of maintenance, including emergency

reconstruction of recently damaged parts, of currently

serviceable structures such as dikes, dams, levees,

groins, riprap, breakwaters, causeways, and bridge

abutments or approaches, and transportation structures;

*

*

*

App. 53

(E)

for the purpose of construction or maintenance of farm

roads or forest roads, or temporary roads for moving

mining equipment, where such roads are constructed

and maintained, in accordance with best management

practices

*

*

*

(G)

To abate violations of the permit or the permit program, including civil and criminal penalties and other

ways and means of enforcement. * * *

(o)

PUBLIC AVAILABILITY OF PERMITS AND PERMIT AP-

PLICATIONS

A copy of each permit application and each permit issued under this section shall be available to the public.

Such permit application or portion thereof, shall further be available on request for the purpose of reproduction.

(2)

33 U.S.C. § 1365

(a) AUTHORIZATION; JURISDICTION Except as provided in subsection (b) of this section and section

1319(g)(6) of this title, any citizen may commence a

civil action on his own behalf—

(1) against any person * * * who is alleged to be in

violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the

App. 54

Administrator or a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged

a failure of the Administrator to perform any act or

duty under this chapter which is not discretionary

with the Administrator.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of

the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator

to perform such act or duty, as the case may be, and to

apply any appropriate civil penalties under section

1319(d) of this title.

(b)

NOTICE No action may be commenced—

(1)

under subsection (a)(1) of this section—

(A) prior to sixty days after the plaintiff has given

notice of the alleged violation (i) to the Administrator,

(ii) to the State in which the alleged violation occurs,

and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and

is diligently prosecuting a civil or criminal action in a

court of the United States, or a State to require compliance with the standard, limitation, or order, but in

any such action in a court of the United States any citizen may intervene as a matter of right.

(2) under subsection (a)(2) of this section prior to

sixty days after the plaintiff has given notice of such

App. 55

action to the Administrator * * * Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.

(3) 33 CFR § 323.4 Discharges not requiring

permits.

(a) General. Except as specified in paragraphs (b)

and (c) of this section, any discharge of dredged or fill

material that may result from any of the following activities is not prohibited by or otherwise subject to regulation under section 404:

*

*

*

(6) Construction or maintenance of farm roads,

forest roads, or temporary roads for moving mining equipment, where such roads are constructed

and maintained in accordance with best management practices (BMPs) to assure that flow and circulation patterns and chemical and biological

characteristics of waters of the United States are

not impaired, that the reach of the waters of the

United States is not reduced, and that any adverse

effect on the aquatic environment will be otherwise minimized. These BMPs * * * shall also include the following baseline provisions:

(i) Permanent roads (for farming or forestry

activities), temporary access roads (for mining, forestry, or farm purposes) and skid trails

(for logging) in waters of the U.S. shall be held

to the minimum feasible number, width, and

total length consistent with the purpose of

specific farming, silvicultural or mining

App. 56

operations, and local topographic and climatic

conditions;

(ii) All roads, temporary or permanent,

shall be located sufficiently far from streams

or other water bodies (except for portions of

such roads which must cross water bodies) to

minimize discharges of dredged or fill material into waters of the U.S.;

(iii) The road fill shall be bridged, culverted,

or otherwise designed to prevent the restriction of expected flood flows;

(iv) The fill shall be properly stabilized and

maintained during and following construction

to prevent erosion;

(v) Discharges of dredged or fill material

into waters of the United States to construct

a road fill shall be made in a manner that minimizes the encroachment of trucks, tractors,

bulldozers, or other heavy equipment within

waters of the United States (including adjacent wetlands) that lie outside the lateral

boundaries of the fill itself;

(vi) In designing, constructing, and maintaining roads, vegetative disturbance in the

waters of the U.S. shall be kept to a minimum;

*

*

*

App. 57

(4)

33 CFR § 325.2 Processing of applications.

(a)

Standard procedures.

*

*

*

(3) The district engineer will consider all comments received in response to the public notice in

his subsequent actions on the permit application.

Receipt of the comments will be acknowledged, if

appropriate, and they will be made a part of the

administrative record of the application.

*

*

*

District engineers will ensure that all parties are

informed that the Corps alone is responsible for

reaching a decision on the merits of any application.

*

*

*

(4) The district engineer will follow Appendix B

of 33 CFR part 230 for environmental procedures

and documentation required by the National Environmental Policy Act of 1969. A decision on a

permit application will require either an environmental assessment or an environmental impact

statement unless it is included within a categorical exclusion.

(5) The district engineer will also evaluate the

application to determine the need for a public

hearing pursuant to 33 CFR part 327.

(6) After all above actions have been completed,

the district engineer will determine in accordance

with the record and applicable regulations

whether or not the permit should be issued. He

App. 58

shall prepare a statement of findings (SOF) or,

where an EIS has been prepared, a record of decision (ROD), on all permit decisions. The SOF or

ROD shall include the district engineer’s views on

the probable effect of the proposed work on the

public interest including conformity with the

guidelines published for the discharge of dredged

or fill material into waters of the United States

*

*

*

(4) Once the district engineer has sufficient information to make his public interest determination, he should decide the permit application

*

*

*

(e) Alternative procedures. Division and district

engineers are authorized to use alternative procedures

as follows:

(1) Letters of permission. Letters of permission are a type of permit issued through an abbreviated processing procedure which includes

coordination with Federal and state fish and wildlife agencies

*

(5)

*

*

33 CFR § 330.1 Purpose and policy.

(a) Purpose. This part describes the policy and procedures used in the Department of the Army’s nationwide permit program to issue, modify, suspend, or

revoke nationwide permits; to identify conditions, limitations, and restrictions on the nationwide permits;

and, to identify any procedures, whether required or

optional, for authorization by nationwide permits.

App. 59

(b) Nationwide permits. Nationwide permits

(NWPs) are a type of general permit issued by the

Chief of Engineers and are designed to regulate with

little, if any, delay or paperwork certain activities

having minimal impacts. The NWPs are proposed,

issued, modified, reissued (extended), and revoked

from time to time after an opportunity for public

notice and comment. Proposed NWPs or modifications

to or reissuance of existing NWPs will be adopted only

after the Corps gives notice and allows the public an

opportunity to comment on and request a public hearing regarding the proposals. The Corps will give full

consideration to all comments received prior to reaching a final decision.

(c) Terms and conditions. An activity is authorized under an NWP only if that activity and the permittee satisfy all of the NWP’s terms and conditions.

Activities that do not qualify for authorization under

an NWP still may be authorized by an individual or

regional general permit. The Corps will consider unauthorized any activity requiring Corps authorization if

that activity is under construction or completed and

does not comply with all of the terms and conditions of

an NWP, regional general permit, or an individual permit. The Corps will evaluate unauthorized activities

for enforcement action under 33 CFR part 326. The district engineer (DE) may elect to suspend enforcement

proceedings if the permittee modifies his project to

comply with an NWP or a regional general permit. After considering whether a violation was knowing or intentional, and other indications of the need for a

App. 60

penalty, the DE can elect to terminate an enforcement

proceeding with an after-the-fact authorization under

an NWP, if all terms and conditions of the NWP have

been satisfied, either before or after the activity has

been accomplished.

(d) Discretionary authority. District and division

engineers have been delegated a discretionary authority to suspend, modify, or revoke authorizations under

an NWP. This discretionary authority may be used by

district and division engineers only to further condition or restrict the applicability of an NWP for cases

where they have concerns for the aquatic environment

under the Clean Water Act section 404(b)(1) Guidelines or for any factor of the public interest. Because of

the nature of most activities authorized by NWP, district and division engineers will not have to review

every such activity to decide whether to exercise discretionary authority.

*

(6)

*

*

33 CFR § 330.2 Definitions.

(a) The definitions found in 33 CFR parts 320-329

are applicable to the terms used in this part.

(b) Nationwide permit refers to a type of general

permit which authorizes activities on a nationwide basis unless specifically limited. (Another type of general

permit is a “regional permit” which is issued by division or district engineers on a regional basis in accordance with 33 CFR part 325). (See 33 CFR 322.2(f ) and

323.2(h) for the definition of a general permit.)

App. 61

(c) Authorization means that specific activities

that qualify for an NWP may proceed, provided that

the terms and conditions of the NWP are met. After

determining that the activity complies with all applicable terms and conditions, the prospective permittee

may assume an authorization under an NWP. This assumption is subject to the DE’s authority to determine

if an activity complies with the terms and conditions of

an NWP. If requested by the permittee in writing, the

DE will verify in writing that the permittee’s proposed

activity complies with the terms and conditions of the

NWP. A written verification may contain activityspecific conditions and regional conditions which a permittee must satisfy for the authorization to be valid.

(d) Headwaters means non-tidal rivers, streams,

and their lakes and impoundments, including adjacent

wetlands, that are part of a surface tributary system

to an interstate or navigable water of the United

States upstream of the point on the river or stream at

which the average annual flow is less than five cubic

feet per second. The DE may estimate this point from

available data by using the mean annual area precipitation, area drainage basin maps, and the average runoff coefficient, or by similar means. For streams that

are dry for long periods of the year, DEs may establish

the point where headwaters begin as that point on the

stream where a flow of five cubic feet per second is

equaled or exceeded 50 percent of the time.

(e) Isolated waters means those non-tidal waters of

the United States that are:

App. 62

(1) Not part of a surface tributary system to interstate or navigable waters of the United States;

and

(2)

Not adjacent to such tributary waterbodies.

(f ) Filled area means the area within jurisdictional

waters which is eliminated or covered as a direct result

of the discharge (i.e., the area actually covered by the

discharged material). It does not include areas excavated nor areas impacted as an indirect effect of the

fill.

(g) Discretionary authority means the authority

described in §§ 330.1(d) and 330.4(e) which the Chief

of Engineers delegates to division or district engineers

to modify an NWP authorization by adding conditions,

to suspend an NWP authorization, or to revoke an

NWP authorization and thus require individual permit authorization.

(h) Terms and conditions. The “terms” of an NWP

are the limitations and provisions included in the description of the NWP itself. The “conditions” of NWPs

are additional provisions which place restrictions or

limitations on all of the NWPs. These are published

with the NWPs. Other conditions may be imposed by

district or division engineers on a geographic, categoryof-activity, or activity-specific basis (See 33 CFR

330.4(e)).

(i) Single and complete project means the total

project proposed or accomplished by one owner/

developer or partnership or other association of

App. 63

owners/developers. For example, if construction of a

residential development affects several different areas

of a headwater or isolated water, or several different

headwaters or isolated waters, the cumulative total of

all filled areas should be the basis for deciding whether

or not the project will be covered by an NWP. For linear

projects, the “single and complete project” (i.e., single

and complete crossing) will apply to each crossing of a

separate water of the United States (i.e., single waterbody) at that location; except that for linear projects

crossing a single waterbody several times at separate

and distant locations, each crossing is considered a single and complete project. However, individual channels

in a braided stream or river, or individual arms of a

large, irregularly-shaped wetland or lake, etc., are not

separate waterbodies.

(j) Special aquatic sites means wetlands, mudflats,

vegetated shallows, coral reefs, riffle and pool complexes, sanctuaries, and refuges as defined at 40 CFR

230.40 through 230.45.

(7)

33 CFR § 331.1 Purpose and policy.

(a) General. The purpose of this part is to establish

policies and procedures to be used for the administrative appeal of approved jurisdictional determinations

(JDs), permit applications denied with prejudice, and

declined permits. The appeal process will allow the affected party to pursue an administrative appeal of certain Corps of Engineers decisions with which they

disagree. The basis for an appeal and the specific policies and procedures of the appeal process are described

App. 64

in the following sections. It shall be the policy of the

Corps of Engineers to promote and maintain an administrative appeal process that is independent, objective, fair, prompt, and efficient.

(b) Level of decision maker. Appealable actions decided by a division engineer or higher authority may

be appealed to an Army official at least one level higher

than the decision maker. This higher Army official

shall make the decision on the merits of the appeal,

and may appoint a qualified individual to act as a review officer (as defined in § 331.2). References to the

division engineer in this part shall be understood as

also referring to a higher level Army official when such

official is conducting an administrative appeal.

(8)

33 CFR § 331.2 Definitions.

*

*

*

Approved jurisdictional determination means a

Corps document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the

United States on a parcel. Approved JDs are clearly

designated appealable actions and will include a basis

of JD with the document.

Basis of jurisdictional determination is a summary of the indicators that support the Corps approved

JD. Indicators supporting the Corps approved JD can

include, but are not limited to: indicators of wetland

hydrology, hydric soils, and hydrophytic plant communities; indicators of ordinary high water marks, high

App. 65

tide lines, or mean high water marks; indicators of adjacency to navigable or interstate waters; indicators

that the wetland or waterbody is of part of a tributary

system; or indicators of linkages between isolated water bodies and interstate or foreign commerce. * * *

Jurisdictional determination (JD) means a written Corps determination that a wetland and/or waterbody is subject to regulatory jurisdiction under Section

404 of the Clean Water Act (33 U.S.C. 1344) or a written determination that a waterbody is subject to regulatory jurisdiction under Section 9 or 10 of the Rivers

and Harbors Act of 1899 (33 U.S.C. 401 et seq.). Additionally, the term includes a written reverification of

expired JDs and a written reverification of JDs where

new information has become available that may affect

the previously written determination. For example,

such geographic JDs may include, but are not limited

to, one or more of the following determinations: the

presence or absence of wetlands; the location(s) of the

wetland boundary, ordinary high water mark, mean

high water mark, and/or high tide line; interstate commerce nexus for isolated waters; and adjacency of wetlands to other waters of the United States. All JDs will

be in writing and will be identified as either preliminary or approved. JDs do not include determinations

that a particular activity requires a DA permit.

*

*

*

Preliminary JDs are written indications that there

may be waters of the United States on a parcel or indications of the approximate location(s) of waters of the

App. 66

United States on a parcel. Preliminary JDs are advisory in nature and may not be appealed. Preliminary

JDs include compliance orders that have an implicit

JD, but no approved JD. * * * after-the-fact (ATF) permit, where the application is accepted and evaluated

by the Corps. The agreement states that the affected

party agrees to have the statute of limitations regarding any violation associated with that approved JD or

application “tolled” or temporarily set aside until one

year after the final Corps decision, as defined at

§ 331.10. No ATF permit application or administrative

appeal associated with an unauthorized activity will

be accepted until a tolling agreement is furnished to

the district engineer.