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Folsom v. United States Army Corps of Engineers Nebraska District

United States District Court, D. Nebraska

April 23, 2018



          John M. Gerrard Judge

         Charles 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.


         Folsom is the former owner[1] 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.

         The 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]"[2] 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.

         An 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.

         Folsom 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.

         Folsom 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.

         So, 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 defendants' alleged

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 ...

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