Corps will get another crack at Martin Marietta J.D.
Judge grants motion for voluntary remand; company had argued that its impoundment cut off jurisdiction for upstream waters
A federal judge in Georgia will allow the Army Corps of Engineers to re-examine a wetlands jurisdictional determination that has prevented Martin Marietta from expanding quarry operations to construct a sedimentation pond (Martin Marietta v. U.S. Army Corps of Engineers, 04-146, S.D. Ga.).
Martin Marietta had sued the Corps, arguing that a 20-acre impoundment it created downstream of its Appling Quarry had rendered the upstream waters where it wanted to build the sedimentation pond "isolated," and therefore non-jurisdictional.
The case has a somewhat convoluted history. In 1996, Martin Marietta received a Section 404 permit to affect 3.45 acres of waters in connection with the construction of the impoundment. The company said then that the pond would "function as a replenishing source for processed water used in the crushing plant, and as a source of water for dust control on site." (The 700-acre quarry is located in Columbia County, Georgia.)
The Corps granted the permit. In 1998, Martin Marietta received a NPDES permit from the state of Georgia to discharge water from the 20-acre pond, which it called a "wastewater treatment facility," into Little Kiokee Creek.
Five years later, Martin Marietta sought permission to build the sedimentation pond upstream of the impoundment. The company argued that the upstream waters were now isolated.
The Corps' Savannah District disagreed, Martin Marietta appealed, and a Corps administrative appeal officer upheld the district's decision, leading to the lawsuit.
Environmental groups jumped into the fray, filing papers that contained the history of the site, and arguing that a decision in Martin Marietta's favor would put "thousands of wetlands and many miles of streams in Georgia that are upstream of impoundments" at risk.
They defended the Corps' determination that the upstream waters were jurisdictional, but also argued that the pond should be protected, as well. In its JD decision on the upstream waters, the Savannah District had determined that the impoundment was covered by Section 402 of the Clean Water Act, under which NPDES permits are granted. Thus, the Corps said, the pond was not a water of the United States.
But in its request for a voluntary remand of the matter, the Corps said it needed to look at everything again.
The Corps "has serious concerns about certain aspects of its jurisdictional determination. That determination...was based, in part, on Martin Marietta's representations that the in-stream impoundment that the Corps permitted in 1996-97 is, in fact, a wastewater treatment facility and that it was authorized as such a facility by the Corps at the time. Based upon its review of currently available information, however, the Corps believes that Martin Marietta might not have fully disclosed to the Corps in 1996 the company's intended purpose for its desired impoundment."
Martin Marietta "never advised the Corps that it intended to convert the pond into a wastewater treatment system," the government said. "Nor did Martin Marietta advise the Corps after the Section 404 permit had been granted that [it] had decided to convert the freshwater pond into a wastewater facility for storm water and process water from its mining operations."
In addition, the Corps said that during the appeal of the jurisdictional determination, Martin Marietta "might not have accurately characterized its current Appling Quarry wastewater operations. For example, it is unclear in the record and in Martin Marietta's responses to EPA's recent information requests that the impoundment - which was permitted as a freshwater pond - actually functions as a waste treatment system, or facility."
"Leaving aside whether Martin Marietta is authorized under its Section 404 permit to discharge mine process water into an impoundment that was permitted under Section 404 exclusively as a freshwater pond, the Corps is uncertain whether any process water actually is discharged into that impoundment."
In its response to the government's motion for voluntary remand, Martin Marietta said the pond "serves as a final treatment pond for any process water that does not return to the closed loop process water settling ponds. In that sense, the freshwater pond is a wastewater treatment facility, and it has been since its construction."
On April 13, U.S. District Judge Dudley H. Bowen Jr. granted the government's voluntary remand request, finding that the reasons for re-examining the matter are both "substantial and legitimate."
The environmental groups - Savannah RiverKeeper, Georgia Wildlife Federation, National Wildlife Federation, and the Natural Resources Defense Council - were very happy with the outcome of the case.
"It is preposterous for industry to twist the Supreme Court decision [in SWANCC] to say that if a dam is built, it's open season for pollution on all upstream waters," said Jim Murphy, National Wildlife Federation Water and Wetlands Resources Counsel. "Waters impounded by and upstream from dams are critical to wildlife and people who enjoy wildlife. The law offers these water clear protection."
And Chris DeScherer, senior Attorney with the Southern Environmental Law Center, which represented the groups, called the lawsuit "a brazen attempt by Martin Marietta to undo the federal government's authority to protect wetlands and streams for public good."
Company attorney Craig Bromby of Hunton & Williams in Raleigh, N.C., said no decision has been made on whether to appeal.
Reprinted with permission of the Endangered Species and Wetlands Report.
