Henry R. Stevenson, Jr. Individually And as Owner of Parkwood Land Company (Board decision, April 19, 2011)

Plain-English summary

Henry R. Stevenson, Jr., individually and as owner of Parkwood Land Company, appealed an EPA Region 6 administrative order concerning dredged and fill material discharged into 1.26 acres of wetlands. The order alleged unpermitted discharges under the Clean Water Act and required a restoration plan, but did not propose a penalty. The appeal argued that the property was outside the Clean Water Act's jurisdiction and that the activities were authorized under Nationwide Permit 3. The Environmental Appeals Board dismissed the appeal because the challenged document was an administrative order, not an appealable initial decision or order issued by an administrative law judge or regional judicial officer.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1311(a), 1344, and 1362; 40 C.F.R. §§ 1.25(e)(1), 22.2, 22.4, 22.5, 22.29, 22.30, and 232.2
• Outcome: The appeal was dismissed for lack of jurisdiction.
• Key point: The EAB's jurisdiction under the Consolidated Rules of Practice does not extend to an EPA administrative order that is not an initial decision, interlocutory ruling, or order of an ALJ or regional judicial officer.

Full text (EPA EAB public release)

              BEFORE THE ENVIRONMENTAL APPEALS BOARD
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C.

                                  )

In re: )
Henry R. Stevenson, Jr. & )
Parkwood Land Co. ) CWA Appeal No. 11-02
)
Docket No. CWA-06-2010-2708 )
)

         ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION

   On February 6, 2011, the Environmental Appeals Board ("Board") received a Notice of

Appeal and accompanying Appeal Brief from Mr. Henry R. Stevenson, Jr., individually and as

owner of the Parkwood Land Company (collectively "PLC"), seeking "review of a decision of

Administrative Law Judge Miguel I. Flores, issued January 31, 2011," for violations of the Clean

Water Act ("CWA" or "Act").¹ The "decision" referenced in the appeal is in fact an

Administrative Order issued on January 31, 2011, by Mr. Flores.

   PLC owns a 79-acre property located northeast of the Interstate Highway 10 and the

Neches River intersection, near Rose City, Orange County, Texas. Administrative Order at 1-2.

In April 2007, PLC received authorization from the U.S. Army Corps of Engineers ("USACE")

pursuant to Nationwide Permit 3 to repair a portion of a containment levee surrounding the

entirety of the property.² See Letter from Bruce H. Bennett, Leader, North Evaluation Unit,

Galveston District, USACE, to James G. White, GTI Environmental Inc. (Apr. 17, 2007)

("USACE Letter").

   The Administrative Order concerns dredge and fill activities conducted on 1.26 acres of

wetlands located on PLC's 79-acre property and observed on multiple dates between August

2007 and August 2010. Administrative Order at 2. The order states that PLC "discharged

dredged material" and/or "discharged fill material" as defined in CWA § 502, 33 U.S.C. § 1362,

and 40 C.F.R. § 232.2, from point sources "in, on and into 1.26 acres of wetlands within the

subject property adjacent to the permitted repair of a levee surrounding the wetlands." Id. at 2.

The order further states that PLC discharged the materials without obtaining a permit from the

USACE required pursuant to CWA § 404, 33 U.S.C. § 1344, and that as such, each unauthorized

discharge on PLC's property was a violation of CWA § 301(a), 33 U.S.C. § 1311(a), which

prohibits the discharge of any pollutant from a point source into waters of the United States

without a permit. See id. at 3. The Region did not propose a penalty in the order, although it

required PLC to submit a plan within thirty days of receipt of the order to restore the 1.26 acres

of impacted wetlands. Id. at 3-4. The Region did, however, expressly reserve the right to

undertake an administrative action or a judicial civil or criminal action to seek penalties, fines, or

other relief under the CWA for the violations alleged within the order. Id. at 4.

   ¹ Miguel I. Flores is the Director of the Water Quality Protection Division for Region 6
   ("Region") of the U.S. Environmental Protection Agency ("EPA"). See Administrative Order
   at 5. He is not an Administrative Law Judge, as stated in PLC's Notice of Appeal.

   ² Nationwide Permit 3 ("NWP 3") "authorizes the repair of a previously-authorized
   currently-serviceable structure or fill provided the structure or fill is not put to a different use
   than that for which it was originally constructed. Minor deviations due to changes in
   construction techniques, materials, or the like are authorized." See Letter from Bruce H. Bennett,
   Leader, North Evaluation Unit, Galveston District, USACE, to James G. White, GTI
   Environmental Inc. (Apr. 17, 2007) ("USACE Letter"). The USACE Letter, verifying that PLC
   could repair the existing levee pursuant to NWP 3, further states that, "[r]eview of a 1947 survey
   showed that the property was originally used for dredge-material disposal and is surrounded by a
   containment levee. According to your project description, this levee is eroding and requires
   repairs. Since the levee was built prior to the inception of Section 404 of the Clean Water Act
   (CWA), and Section 10 of the Rivers and Harbors Act of 1899[,] plus the fact [that]
   jurisdictional activities that have occurred prior to July 19, 1977, are authorized (grandfathered)
   by the NWP[,] the levee is considered to be previously-authorized and can be repaired pursuant
   to NWP 3." Id.

   PLC's appeal asserts that the USACE and EPA lack jurisdiction over the subject property

because based on the Supreme Court's decision in Rapanos v. U.S., 547 U.S. 715 (2006), PLC's

land is not a wetland within the jurisdiction of the CWA. Appeal Brief at 9-11. PLC further

asserts that its activities on the subject property are grandfathered under NWP 3, and that the

disagreement between the parties is based on whether PLC exceeded the limits of the

grandfathered activities. Id. at 11-12.

   In the absence of a specific reference to a jurisdictional basis for the Board's review,

PLC's reference to an "administrative law judge" in its Notice of Appeal suggests that PLC is

attempting to assert jurisdiction based on the Consolidated Rules of Practice contained in

40 C.F.R. part 22. The Board is a body of limited jurisdiction, and in this instance, the Board

lacks jurisdiction under the Consolidated Rules of Practice, sections 22.4(a), .29-.30,³ to hear

PLC's appeal of the Region's order issued pursuant to the CWA. The Administrative Order at

issue here is not an initial decision or interlocutory ruling or order of an administrative law judge

or regional judicial officer.⁴ Accordingly, PLC's appeal is hereby dismissed.

   So ordered.⁵

                                            ENVIRONMENTAL APPEALS BOARD

Dated: April 19, 2011 By: Charles J. Sheehan
Charles J. Sheehan
Environmental Appeals Judge

   ³ Section 22.4(a) states in part that "[t]he Environmental Appeals Board rules on appeals
   from the initial decisions, rulings and orders of a Presiding Officer in proceedings under these
   Consolidated Rules of Practice." 40 C.F.R. § 22.4(a). Section 22.29 provides for appeals from
   interlocutory orders or rulings other than an initial decision of a presiding officer. 40 C.F.R.
   § 22.29(a). Section 22.30 provides for appeals to the Board from initial decisions of a presiding
   officer. 40 C.F.R. § 22.30; see also 40 C.F.R. § 22.2 (stating that the presiding officer shall be an
   administrative law judge except for specific instances where the Consolidated Rules allow a
   regional judicial officer to serve as presiding officer).

   ⁴ The Board also notes that despite the requirements set forth in 40 C.F.R. §§ 22.5(a)(3)
   and 22.5(b), which state that each document filed shall be served on each party and shall be
   accompanied by a certificate of service, PLC's Notice of Appeal and Appeal Brief do not have a
   certificate of service attached. Further, given that the Board never received a response from the
   Region regarding PLC's appeal, it is unclear whether the Region ever received a copy of PLC's
   appeal as required by the Consolidated Rules of Practice.

   ⁵ The three-member panel deciding this matter is comprised of Environmental Appeals
   Judges Charles J. Sheehan, Edward E. Reich, and Kathie A. Stein. 40 C.F.R. § 1.25(e)(1).

                           CERTIFICATE OF SERVICE

    I hereby certify that copies of the foregoing Order Dismissing Appeal for Lack of

Jurisdiction in the matter of Henry R. Stevenson, Jr. & Parkwood Land Co., CWA Appeal
No. 11-02, were sent to the following persons in the manner indicated:

By Facsimile and First Class U.S. Mail:

Charles M. Kibler, Jr.
765 N. 5th Street
Silsbee, TX 77656
Phone: (409) 373-4313
Facsimile: (888) 720-1177

By Facsimile and EPA Pouch Mail:

Miguel I. Flores
Director, Water Quality Protection Division
U.S. Environmental Protection Agency - Region 6 (6WQ)
1445 Ross Avenue
Suite 1200
Dallas, TX 75202-2733
Phone: (214) 665-7101
Facsimile: (214) 665-7373

Russell Murdock
Office of Regional Counsel
U.S. Environmental Protection Agency - Region 6 (6RC)
1445 Ross Avenue
Suite 1200
Dallas, TX 75202-2733
Phone: (214) 665-3189
Facsimile: (214) 665-2182

Dated: APR 19 2011
Annette Duncan
Secretary