United States District Court, D. Nebraska
CHARLES A. FOLSOM, Plaintiff,
UNITED STATES ARMY CORPS OF ENGINEERS NEBRASKA DISTRICT, et al., Defendants.
MEMORANDUM AND ORDER
M. Gerrard Judge
Folsom, the plaintiff, has sued the U.S. Army Corps of
Engineers and the Environmental Protection Agency (EPA)
seeking to resolve a disagreement about Folsom's use of
concrete to stabilize the bank of the Elkhorn River along
property he owned. But as the defendants point out, while
there was discussion among the parties about whether Folsom
had violated § 404 of the Clean Water Act, 33 U.S.C.
§ 1344, there was no compliance order or other final
agency action pursuant to the Administrative Procedure Act
(APA), 5 U.S.C. § 701 et seq., actually
imposing obligations or penalties on Folsom. As a result,
Folsom has failed to state a claim for relief, and the Court
will dismiss his complaint.
is the former owner of land along the Elkhorn River in Dodge
County, Nebraska. Filing 1 at 3. The river flooded
in 2012, harming the upstream drainage from Folsom's
property. Filing 1 at 3. He did not apply for a
permit for riverbank stabilization, believing it would have
been futile. Filing 1 at 3. Instead, he simply put
large pieces of recycled concrete on his property along the
riverbank. Filing 1 at 4. He claims the materials
"were [not] placed directly into the Elkhorn River or
any jurisdictional wetlands." Filing 1 at 4.
Corps disagreed, and on August 24, 2015, it sent him a letter
setting forth its "preliminary assessment" that
there had been an "unauthorized discharge of fill
material into [the waters of the United States] . . .
consisting of unauthorized size and material . . . placed
using heavy equipment with tracks, such as a bull
dozer." Filing 1-2 at 1. The Corps asserted
that the "Elkhorn River and its adjacent wetlands are
jurisdictional [waters of the United
States]" for purposes of the Clean Water Act, and
that the fill Folsom placed had "impacted the stream and
potential wetlands." Filing 1-2 at 1. Because
Folsom had not obtained a permit, the Corps wrote, "the
observed discharge is in violation of the Clean Water
Act[.]" Filing 1-2 at 2. The letter set
deadlines for Folsom to voluntarily remediate the alleged
violation. Filing 1-2 at 2.
amended letter, reflecting the Corps' site visit, was
sent September 18, 2015. That letter was to the same effect,
and likewise instructed Folsom that
In some cases voluntary restoration may resolve a violation
when the restoration of the [waters of the United States]
eliminates current and future detrimental impacts to the
satisfaction of the district engineer. We believe that
voluntary restoration is an appropriate resolution of this
case. In order to resolve this violation, without
forwarding this violation to the U.S. Environmental
Protection Agency (EPA) for resolution, a restoration plan
detailing the voluntary restoration work to be completed must
be received in this office for approval within 30 days of
receipt of this letter. Upon approval of the plan,
the restoration work must be completed within 90 days, unless
otherwise authorized. Failure to submit a plan and complete
the restoration within the timeframe allowed will result in
the case being forwarded to EPA for their enforcement.
Filing 1-3 at 2.
met with the Corps, but they were unable to resolve their
disagreement. Filing 1-5 at 21. The Corps referred
the matter to the EPA on October 15, 2015. Filing 1-5 at
22. On February 29, 2016, the EPA sent Folsom a letter
stating that "actions are necessary to address the
[Clean Water Act] compliance issues" the Corps had
identified. Filing 1-4 at 1. The EPA enclosed a
"proposed Administrative Order for Compliance on Consent
to establish a schedule to accomplish these actions."
Filing 1-4 at 1. "By this letter and through
the proposed Order, " Folsom was told, "the EPA
invites you to discuss the activities necessary for the
facility to comply with the [Clean Water Act]."
Filing 1-4 at 1. The EPA also threatened an
"enforcement action in the form of a civil penalty"
of $91, 500, "for settlement purposes only."
Filing 1-4 at 1. But the penalties could be higher,
the letter warned, "[s]hould the EPA decide to file an
Administrative Complaint in this matter[.]" Filing
1-4 at 1.
While the EPA believes it is appropriate to proceed with a
formal compliance agreement and penalty action, we recognize
that settlement of this matter may be best accomplished by
conducting negotiations prior to formalizing any enforcement
action. By this letter we are offering you the opportunity to
negotiate the attached Administrative Order for Compliance on
Consent and a resolution of the proposed penalty before a
complaint is filed. As part of these pre-filing negotiations,
the EPA will consider any additional information you may have
that is relevant to the violations and the actions necessary
to address the identified violations. If you are interested
in participating in pre-filing negotiations, please contact .
. . the attorney assigned to this matter, within
seven (7) calendar days of your receipt of
this letter . . . If the terms of the proposed Order and
penalty are acceptable, you may also simply choose to sign
the proposed Order and return it to the EPA for execution.
If you choose not to sign the proposed Order or contact the
EPA within the seven (7) day time period to participate in
pre-filing negotiations regarding the Order, or if agreement
is not reached within the 60-day pre-filing time
period, the EPA will evaluate other enforcement
options to address the identified violations.
Filing 1-4 at 2. The proposed order included a
direction to cease and desist placing concrete along the
river, and would have required a plan for restoring the
riverbank. Filing 1 at 4.
didn't hear anything more about it, though. Filing 1
at 5. So, on July 17, 2017, Folsom wrote the Corps
explaining his actions and stating his "absolute
intention to take this matter to court." Filing 1-5
at 4. The Corps responded with a letter dated August 28,
advising Folsom that the Corps would not meet with him and
had "no further action at this time" because
"[his] enforcement case [had] been referred to the U.S.
Environmental Protection Agency (EPA) Enforcement Program for
review[.]" Filing 1-6.
Folsom filed this case. Filing 1. He asserts that
the EPA's "proposed Compliance Order is a final
agency action subject to judicial review" under the APA.
Filing 1 at 6. He seeks an injunction against the
Corps and EPA enjoining them "from enforcing the
compliance order against Folsom[.]" Filing 1 at
6. And he seeks declaratory judgment regarding the
failure to comply with the [Clean Water Act], the APA, and
the Constitution in determining that Folsom's actions
were violative of the [Clean Water Act] and that he can be
held liable for violation of the proposed Compliance Order,
or the alleged underlying violation, without proof of a
violation or an opportunity to be heard.
Filing 1 at 6. He is, he alleges, "presently
and continuously injured by the proposed Compliance
Order's issuance because its issuance and coincident
threat of enforcement will force Folsom to restore his
property to its original condition at great expense, or to
subject himself to severe civil and criminal penalties."
Filing 1 at 7. And, Folsom says, he wants to
"maintain" and ...