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In re Stevenson

Case Number:CWA Appeal No. 13-01
ELR Citation:44 ELR 41367

Henry Stevenson and Parkwood Land Co. (together, "Parkwood") appeal from an Initial Decision issued by Regional Judicial Officer ("RJO") Pat Rankin on February 11, 2013. The U.S. Environmental Protection Agency ("EPA" or "Agency"), Region 6 ("Region"), in turn, filed a cross appeal. The Agency's administrative complaint charged Parkwood with violations of Clean Water Act ("CWA" or "Act") sections 301(a) and 404, 33 U.S.C. §§1311(a) and 1344, when it discharged fill material into wetlands while repairing a levee by constructing a truck ramp and truck turnaround on the levee. The levee is located along the Neches River near Rose City, Texas. The Region proposed a $32,000 administrative civil penalty, derived from the Agency's Clean Water Act Section 404 Settlement Penalty Policy ("Settlement Penalty Policy").

In his Accelerated Decision as to liability, the RJO applied the CWA jurisdiction test described in Justice Kennedy's concurrence in Rapanos v. United States, 547 U.S. 715 (2006), and determined that Parkwood discharged fill material into wetlands adjacent to the Neches River without an authorizing permit. In the Initial Decision, the RJO rejected Parkwood's argument that Nationwide Permit ("NWP") 3 authorized the discharge of fill associated with the construction of the truck ramp and truck turnaround. The RJO, relying on the Settlement Penalty Policy, assessed a $7,500 administrative civil penalty.

Parkwood appeals the RJO's finding of liability because his CWA jurisdictional determination was based solely on the so-called Kennedy test described in Rapanos, and even if there was CWA jurisdiction, Parkwood contends that NWP 3 authorized the activities that led to the discharge offill into jurisdictional wetlands. The Region's cross­ appeal challenges the RJO's penalty assessment on the basis that the RJO misapplied the CWA statutory factors and the Settlement Penalty Policy when rendering his penalty assessment.

Held: The Board denies Parkwood's appeal and grants the Region's appeal in part. The Board remands the RJO's penalty assessment for further consideration consistent with the Board's ruling.