RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0036p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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CITY OF OLMSTED FALLS, OHIO, and MARVIN
Plaintiffs-Appellants, -
HIRSCHBERG,
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No. 04-3720
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v. >
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UNITED STATES ENVIRONMENTAL PROTECTION
Defendants-Appellees. -
AGENCY, et al.,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 02-02210—Patricia A. Gaughan, District Judge.
Argued: July 21, 2005
Decided and Filed: January 24, 2006
Before: KENNEDY, CLAY, and GILMAN, Circuit Judges.
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COUNSEL
ARGUED: Barbara E. Lichman, CHEVALIER, ALLEN & LICHMAN, Costa Mesa, California,
for Appellants. John A. Bryson, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: Barbara E. Lichman, Berne C. Hart, CHEVALIER, ALLEN &
LICHMAN, Costa Mesa, California, Kevin T. Roberts, ROBERTS LAW FIRM, Cleveland, Ohio,
for Appellants. John A. Bryson, Andrew J. Doyle, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.
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OPINION
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KENNEDY, Circuit Judge. This suit stems from a challenge to a “dredge and fill” permit
issued by Corps Defendants1 pursuant to Section 404 of the Clean Water Act, Title 33 U.S.C. § 1344
(Section 404) by the City of Olmsted, a down-river municipality, and a private citizen who opposed
the City of Cleveland’s expansion of Hopkins International Airport. The expansion project called
1
The Department of the Army; Thomas E. White, the Secretary of the Army; the Army Corps of Engineers;
and Glen R. Dewillie, the District Engineer for the Army Corps of Engineer’s Buffalo District, all have a hand in the
permitting process. This opinion will refer to them collectively as Corps Defendants.
1
No. 04-3720 City of Olmsted Falls, et al. v. United States EPA, et al. Page 2
for a new runway, which required the filling and culverting of “5,400 linear feet of Abram Creek,
the filling of 2,500 linear feet of Abram Creek tributaries, and the filling of 87.85 acres of wetlands.”
Joint Appendix at 321 (J.A.) The Clean Water Act not only requires a permit from Corps
Defendants, it also requires a certification from the state involved, in this case, Ohio, that the state’s
environmental requirements have been met. The City of Cleveland had, therefore, applied to the
Ohio Environmental Protection Agency (OEPA) for state certification as required by Title 33 U.S.C.
§ 1341 (Section 401). In other litigation, the City of Cleveland was dealing with the United States
Environmental Protection Agency (USEPA) and the OEPA on matters relating to permits for run-off
from the existing airport as well as other issues related to the expansion.
BACKGROUND
Before beginning any project that requires a “discharge of dredged or fill material into the
navigable waters [of the United States]” a party must apply for a permit. 33 U.S.C.A. § 1344. This
permit is termed a “dredge and fill” permit. In order to obtain a dredge and fill permit under Section
404, an applicant must first comply with Section 401(a)(1):
Any applicant for a Federal License or permit to conduct any activity including, but
not limited to, the construction or operation of facilities, which may result in any
discharge into the navigable waters, shall provide the licensing or permitting agency
a certification from the State, in which the discharge will comply with [certain
provisions] of this title . . . . If the State . . . fails or refuses to act on a request for
certification within a reasonable period of time (which shall not exceed one year)
after receipt of such request, the certification requirements of this subsection shall
be waived with respect to such Federal application. No license or permit shall be
granted until the certification required by this section has been obtained or has been
waived as provided in the proceeding sentence . . . .
33 U.S.C. § 1341(a)(1).
The relevant regulation governing procedures to be taken by the Corps Defendants in
processing permits requiring a Section 404 permit provides, in part, that
[n]o permit will be granted until required certification has been obtained or has been
waived. A waiver may be explicit, or will be deemed to occur if the certifying
agency fails or refuses to act on a request for certification within sixty days after
receipt of such a request unless the district engineer determines a shorter or longer
period is reasonable for the state to act . . . .
33 C.F.R.§ 325.2(b)(1)(ii).
In accordance with its obligations under federal environmental statutes and regulations, the
City of Cleveland sought OEPA certification of its project pursuant to Section 401. After issuing
comments that resulted in the City of Cleveland filing a revised Section 401 application, the OEPA
held hearings and expressed further concerns related to the environmental impact of the expansion
on Abram Creek. Eventually the OEPA expressly waived its authority to act on the Section 401
application.
Corps Defendants then conducted a review of the project. This review requires a balancing
of “a number of economic and environmental factors,” Town of Northfolk v. United States Army
Corps of Eng’rs., 968 F.2d 1438, 1454 (1st Cir. 1992), including “evaluating the probable impacts
No. 04-3720 City of Olmsted Falls, et al. v. United States EPA, et al. Page 3
. . . of the proposed activity and its intended use on the public interest,”2 33 C.F.R. § 320.4(a)(1).
During its review, Corps Defendants weigh “[t]he benefits which reasonably
3
may be expected to
accrue . . . against [the project’s] reasonably foreseeable detriments.” Id. Corps Defendants issued
the Section 404 permit to the City of Cleveland.4 The permit required that the City of Cleveland
undertake certain mitigating activities to offset the environmental degradation of the project. The
district court described the mitigation activities as follows:
Preserve 1070 linear feet of Abram Creek downstream of the Airport;
Provide $2 million toward preserving 3600 linear feet of Abram Creek upstream of
the Airport;
Restore 265 acres of wetlands located in Lorain County;
Restore 5000 linear feet of the Black River;
Enhance 12,400 linear feet of Doan Brook;
Provide $682,000 toward the restoration of 3,264 linear feet of Woodiebrook Creek;
Provide $600,000 toward the preservation of 4,707 linear feet of Spring Brook; and
Provide $500,000 toward the preservation of 3,000 linear feet of Elk Creek.
(J.A. at 322). Construction began two days after the permit was issued on May 20, 2001.
Plaintiffs filed suit against the USEPA, the then head of the USEPA, the Regional
Administrator for Region Five of the USEPA, the Corps Defendants, the City of Cleveland, the
Mayor of the City of Cleveland, and ten Doe defendants. Their complaint alleged various violations
of the Clean Water Act, asked the district court to set aside the Section 404 Permit, requested an
injunction and declaratory relief, and sought an order compelling compliance with Section 401
Certification. In particular, Plaintiffs complained that Corps Defendants improperly relied on the
OEPA’s waiver of the Section 401 Certification. Plaintiffs also argued that the type and quantity
of mitigation proposed by the City of Cleveland was inadequate and that the proposed permit
violated various federal and state regulations, including the so-called federal antidegradation rule.
Plaintiffs dismissed the City of Cleveland and the Mayor of the City of Cleveland in their first
amended complaint.
The district court, in two different opinions, dismissed portions of Plaintiffs’ complaint and
granted judgment on the administrative record to Corps Defendants on the remainder of the
complaint. In its first opinion, after dismissing Defendant USEPA and all parties related to USEPA
for lack of subject matter jurisdiction, the district court determined that Corps Defendants were
entitled to rely on the waiver by OEPA with respect to compliance with Ohio’s requirements, or in
the alternative, that Plaintiffs failed to support a claim that Corps Defendants acted arbitrarily,
capriciously, or contrary to law in relying on the waiver.
In its second opinion, the district court granted judgment on the administrative record to all
remaining defendants. The district court determined that 40 C.F.R. § 131.12, or as Plaintiffs term
it, the federal antidegradation rule, applies to states only. As such, the district court held that the
federal antidegradation rule was inapplicable to Corps Defendants. Second, the district court found
2
In this case, the airport needed to add new runways in order to accommodate larger planes, diminish airport
congestion, and enhance airport safety. (J.A. at 764-777.) Corps Defendants balanced these important public interest
goals against the environmental harm caused by the destruction of a portion of Abram Creek.
3
Additional criteria applicable to CWA section 404 permits are set forth at 40 C.F.R. pt. 230.
4
Plaintiffs appealed the OEPA’s waiver, and the Ohio Environmental Review Appeals Commission ruled that
the OEPA could not waive its authority to act under Ohio law. An Ohio state court later invalidated that holding due
to a lack of standing.
No. 04-3720 City of Olmsted Falls, et al. v. United States EPA, et al. Page 4
that it was neither arbitrary nor capricious for Corps Defendants to use compensatory mitigation
rather than avoidance mitigation and mitigation by minimization of impacts on existing uses. The
district court also found that Corps Defendants did not act in an arbitrary or capricious manner when
they concluded that the proposed project would not sufficiently degrade the waters of the United
States, as prohibited by 40 C.F.R. § 230.10(c). Additionally, the district court found that Corps
Defendants did not act arbitrarily or capriciously when they determined that granting the permit
would not violate state water quality standards under 40 C.F.R. § 230.10(b)(1). Finally, the district
court refused to expand the record and consider the Water Quality Standards Handbook (handbook)
because it determined that the handbook would not aid it in reaching a decision.
On appeal, Plaintiffs challenge the district court’s rulings in several important respects. First,
Plaintiffs argue that the district court erred in failing to apply 40 C.F.R. § 131.12(a) (the federal
antidegradation rule) in granting judgment on the administrative record, because 40 C.F.R.
§ 131.12(a) mandates that existing uses in the stream must be maintained and protected. Second,
Plaintiffs dispute the district court’s interpretation of federal regulations and the Memorandum of
Agreement Between the Department of the Army and the Environmental Protection Agency entitled
The Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines (MOA)
and argue that it was improper for Corps Defendants to use compensatory mitigation rather than
avoidance and minimization of impacts on existing uses mitigation. Third, Plaintiffs challenge the
district court’s dismissal of a portion of their complaint, arguing that Corps Defendants could not
rely on OEPA’s waiver. They also argue that the permit was improperly issued because of the
reliance on that waiver. Finally, Plaintiffs argue that the district court should have granted their
motion to supplement the record with the handbook. They contend that the district court should
have considered that document because of the guidance it provides in interpreting USEPA
regulations.
ANALYSIS
A. Mootness
Because the airport expansion project appeared to be complete at the time of our review, we
directed both parties to file letter briefs on whether Plaintiffs’ claims were moot. Both parties argue
that despite the fact that construction on the project and the filling of Abram Creek are complete,
the issues raised by Plaintiffs are not moot, because should Plaintiffs prevail in their suit, the permit
issued by the Corps Defendants would have to be invalidated and another permitting process would
be required. Because a live controversy exists with respect to the permit itself, we agree that the
issues raised in Plaintiffs’ complaint are not moot and that we may address all aspects of their
appeal.
B. Reliance on the OEPA waiver
Plaintiffs argue that under Ohio law, the OEPA cannot issue a Section 401 waiver and that
the Corps Defendants were aware of that fact. The district court dismissed this portion of Plaintiffs’
complaint for failure to state a claim upon which relief could be granted. “This court reviews de
novo a district court's dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6).”
Care Heating & Cooling, Inc. v. American Standard, Inc., 427 F.3d 1008, 1012 (6th Cir.2005)
(citing P.R. Diamonds, Inc. v. Chandler, 364 F.3d 671, 680 (6th Cir.2004)).
We agree with the district court that Corps Defendants could properly rely on OEPA’s
waiver in this case. If Corps Defendants cannot rely on the state agency to properly follow its own
laws and regulations with respect to issuing waivers, the Section 401 waiver procedure would, in
effect, require Corps Defendants to engage in an analysis of each states’ rules and regulations on the
issuing of Section 401 waivers, come to an independent assessment as to whether the state agency
No. 04-3720 City of Olmsted Falls, et al. v. United States EPA, et al. Page 5
followed those rules on issuing Section 401 waivers, and, if Corps Defendants determined that they
did not follow them, fail to grant a permit despite an explicit waiver by the state. Such a procedure,
in addition to being cumbersome and duplicative of effort, would undermine the role that state
environmental agencies play in the Section 401 process. It would also contravene the express
language of the federal statute section which provides not only for express waivers by a state, but
also for waivers by silence. See 33 U.S.C. § 1341(a)(1).
C. Issues decided on the agency record
We now address the issues the district court decided on the agency record. Because the
Clean Water Act does not articulate its own standard of review, we review agency action pursuant
to the Administrative Procedures Act. See, e.g., Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir.
1997). We review agency actions to see if they were arbitrary, capricious, or an abuse of discretion,
or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). See Slater, 120 F.3d at 632. We
accord deference to the agency’s views, but we still conduct “a thorough, probing, in-depth review.”
Citizens to Preserve Overton Park, Inc., v. Volpe, 401 U.S. 402, 415 (1971) (abrogated on other
grounds).
1. Federal Antidegradation Rule
First, Plaintiffs argue that the Corps Defendants erred in issuing a permit without first
deciding whether the federal antidegradation rule was satisfied. The federal antidegradation rule
requires states to develop an antidegradation policy. 40 C.F.R. §§ 131.1, 131.12(a). We agree with
the district court that the federal antidegradation rule only places obligations on states, not on Corps
Defendants. By its very terms, 40 C.F.R. § 131.12 requires that “State[s] shall develop and adopt
. . . an antidegradation policy. . . ” In fact, § 131.12 only places obligations on states. It does not
mention any other actor but states. Corps Defendants cannot be liable for violations of this
regulation when they have no obligations under it.
2. Appropriate mitigation standard
Similarly, Plaintiffs’ position on mitigation is incorrect. Plaintiffs argue that the USEPA has
two different standards of mitigation, one for wetland fills and one for filling other bodies of water.
Plaintiffs argue that compensatory mitigation is permissible for the former and that avoidance and
minimization mitigation are the only permissible forms of mitigation for the latter. Plaintiffs rely
on the MOA and federal regulations as supporting its position. No federal regulation, however,
indicates that avoidance and minimization is the only permissible means to mitigate environmental
impacts on streams or creeks. The MOA cited by plaintiffs for support of their theory is similarly
unavailing. While the MOA does indicate that in the case of wetlands, “at a minimum, one for one
functional replacement (i.e., no net loss of values),” is to be the rule, nowhere in the policy statement
or the discussion of the types of mitigation does the MOA indicate that compensatory mitigation can
only be used for wetlands. (J.A. at 651-53). Thus, the regulations and the MOA do not foreclose
compensatory mitigation in all cases involving streams or creeks. Plaintiffs’ assertions to the
contrary are simply incorrect. Because compensatory mitigation is a permissible form of mitigation
for environmental degradation of bodies of water such as Abram Creek, we agree with the district
court that compensatory mitigation is an acceptable form of mitigation to offset the environmental
degradation of streams and creeks under applicable federal environmental laws.
3. The Corps Defendants’ decision to issue a permit was not arbitrary or capricious.
The district court also properly addressed whether Corps Defendants’ actions were arbitrary
or capricious, both with respect to 40 C.F.R. § 230.10(c) and § 230.10(b)(1). Title 40 C.F.R.
§ 230.10(c) indicates that “no discharge of dredged or fill material shall be permitted which will
cause or contribute to significant degradation of the waters of the United States.” In this case, a
No. 04-3720 City of Olmsted Falls, et al. v. United States EPA, et al. Page 6
portion of Abram creek is replaced by a culvert. As such, absent mitigation of the harm, the
environmental impact on the creek would be contrary to the regulation. But, we agree with the
district court that in light of the significant compensatory mitigation discussed by Corps Defendants
both with respect to Abram Creek itself as well as the other streams and wetlands in the watershed,
the Corps Defendants’ finding that the airport expansion will not cause or contribute to a significant
degradation of the waters of the United States was neither arbitrary nor capricious.
We make this finding accepting Plaintiffs’ contentions, as we must, that the permit results
in significant degradation to this culverted portion of Abram Creek. Corps Defendants granted the
Section 404 permit with the understanding that as compensation for the environmental degradation
caused by the culvert project, the City of Cleveland would undertake several projects to preserve,
improve, and protect other areas. It was neither arbitrary nor capricious for the Corps Defendants
to balance the environmental harm caused by the project against the benefits of the proposed
mitigation and find that, on balance, the project would not contribute to a significant degradation
of the waters of the United States.
With respect to 40 C.F.R. § 230.10(b)(1), we agree with the district court that it was neither
arbitrary nor capricious for Corps Defendants to grant the permit. Title 40 C.F.R. § 230.10(b)
provides that “No discharge of dredged or fill material shall be permitted if it: (1) Causes or
contributes, after consideration of disposal site dilution and dispersion, to violations of any
applicable State water quality standard . . . .” Plaintiffs argue that the permit violates Ohio’s
antidegradation policy, thereby violating 40 C.F.R. § 230.10(b)(1). We disagree. The OEPA had
engaged in extensive analysis and comment on the project. Comments made by OEPA
representatives indicated that the mitigation agreed to by the City of Cleveland would exceed Ohio
water quality standards. In particular, the district court referenced OEPA comments:
. . . [L]et me point out that I have issued administrative orders to the City of
Cleveland as part of the waiver process that will provide the extensive mitigation of
wetland and stream impacts of this project. Far from abandoning the environment
by waiving our Section 401 authority, OEPA will achieve via this administrative
order far reaching mitigation projects that exceed regulatory authority.
(J.A. at 343-44.) The district court also pointed out that the Corps Defendants also took into account
the mitigating fact that the permit required Cleveland to restore over 4000 linear feet of Abram
Creek in determining that water conditions would improve. Because we can find no error in the
Corps Defendants’ conclusion that the quality of the water in Abram Creek would improve as a
result of this project, nor can we find fault with the district court’s reasoning with respect to the
Corps Defendants’ reliance on the OEPA as to the other mitigation as required by the permit, we
cannot say that the Corps Defendants acted in an arbitrary or capricious fashion when they issued
the permit.
4. The handbook
Finally, with respect to the admission of the handbook, Plaintiffs do not explain, and after
reading it, the court does not understand what relevance the handbook has to these proceedings.
While it is true, as Plaintiffs note, that the handbook provides detailed discussion of antidegradation
and water quality standards, that information does not aid Plaintiffs’ arguments, nor would it have
enhanced the district court’s analysis or decision. As we have already mentioned, the
antidegradation rules do not apply to Corps Defendants; they place obligations only on the states.
Thus, a more detailed understanding of those rules is unnecessary. Similarly, a more detailed
understanding of water quality standards would be useful only if this court accepted Plaintiffs’
arguments that compensatory mitigation was an improper form of mitigation and derivatively that
any decrease in water quality would result in a ground to revoke the permit. Consequently, because
No. 04-3720 City of Olmsted Falls, et al. v. United States EPA, et al. Page 7
it was neither arbitrary nor capricious for Corps Defendants to find that the level of compensatory
mitigation proposed was adequate, it was unnecessary for the district court to consult the handbook.
We affirm the district court in all respects.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.