Regulatory Branch Project Manager
Clinton County, Iowa
Wendling Quarries, Inc. (Applicant), proposes to excavate sand and gravel from an approximately 110-acre site adjacent to the Mississippi River, impacting approximately 42 acres of Waters of the U.S., including forested riverine wetlands. The site also contains a known rookery for Great Egrets and Great Blue Herons. To date, the Rock Island District Corps of Engineers (District) has not received a 404 permit application or avoidance, minimization and mitigation measures from the Applicant.
An application for the proposed quarry was submitted by Wendling on September 3, 2010. Another application dated February 20, 2013 was submitted after the first application was withdrawn. On May 16, 2013, the Applicant, along with representatives of Kagel Environmental, LLC (Consultant), Senator Grassley's office, Rock Island District Corps of Engineers (District), United States Environmental Protection Agency (USEPA) Region 7, U.S. Fish and Wildlife Service (FWS) and the Iowa Department of Natural Resources (IDNR) met to conduct a pre-application consultation to discuss the proposed project, its environmental impacts and the permitting process. The requirements for a complete application and public noticed were discussed, as well as the processing timeline, 404(b)(1) guidelines, jurisdiction and environmental concerns. The District agreed to send the Applicant and Consultant the list of requirements for a complete application, and sent that information on May 20, 2013.
The Applicant stated that they would move forward in developing a permit application and include avoidance, minimization and mitigation measures. To date, the District has not received an application from the Applicant, but have responded to their inquiries through email and phone conversations on May 22, May 28, June 5, June 17, July 17 and July 18, 2013. On December 9, 2013, Wendling Quarries submitted a FOIA request to the District and we mailed the response on December 18, 2013. By letter dated December 4, 2014 from their attorney's office Snell & Wilmer L.L.P., the Applicant stated that they planned to initiate timber harvesting and gravel excavation, as they do not need a permit for the work, and that the District should notify them if we still feel we have jurisdictional authority.
Our response, dated December 19, 2014, re-stated our position on their need for a permit and our jurisdictional authority. By letter dated December 31, 2014, Snell & Wilmer provided their legal and technical argument regarding their opinion that no permit is needed. We responded by letter dated January 13, 2015 and re-stated and explained our position and justification for jurisdictional authority and their need for a permit, as well as responses to their specific questions. In June 2015, the Applicant submitted an Ordinary High Water Mark Survey in response to our January 2015 letter. In addition, they submitted a letter which re-iterated why they believe they do not need a Section 404 or Section 10 Permit. In the letter, the Applicant stated that they will begin work soon regardless of whether a DA Permit was obtained. By letter we responded on August 21, 2015 and stated that the site is under Section 10 and 404 Jurisdiction and they have not provided the information we need to move forward. On December 4, 2015, Regulatory received a wetland delineation, mining plan and an additional letter from their attorneys that stated the Corps had no Section 10 Authority and that Wendling could complete the project without a permit. After review, Regulatory determined that the site is not Section 10 because it lies completely above the Ordinary High Water Mark of the Mississippi River and is landward of the River. The open water on the interior of the site does not have a sufficient connection to the Mississippi River to consider them jurisdictional under Section 10 jurisdiction. In our response (sent February 17, 2016), we informed Wendling that the site is not under Section 10 Jurisdiction, but it is under 404. We also informed them again about our concerns with the mechanized land clearing and their lack of a clear plan showing how this could be accomplished without causing a discharge. We provided an Approved Jurisdictional Determination and again stated that they should submit a Joint Permit Application, provide their full plan and we could initiate the Public Notice procedure. They were informed that if work commences at this site, we may transfer this to the USEPA for enforcement action. On April 14, 2016, Wendling Quarries Appealed the Approved Jurisdictional Determination. The appeal was denied on May 13, 2016 by the Mississippi Valley Division Commander, Major General Michael C. Wehr. On August 26, 2016, Wendling sued in Federal Court for declaratory and injunctive relief. Wendling requested that the Court—(1) enjoin the Corps from requiring Wendling to obtain a Section 404 CWA permit or to demonstrate how it would avoid a discharge; (2) issue a declaration that no regulated discharge will occur at the site; and (3) issue an order that the Corps’ actions were arbitrary and capricious and an abuse of discretion, and violated the Administrative Procedures Act (APA). Wendling also sought undefinitzed attorney fees. On November 2016, the U.S. filed a motion to dismiss based on lack of APA subject matter jurisdiction, stating that the challenged cover letter was not a final agency action subject to APA review. On January 2, 2017 after a telephonic hearing, the Judge denied the Corps’ motion to dismiss stating that the Corps’ cover letter was the final agency action, and setting forth dates for discovery and summary judgement motions. Thereafter, the Administrative Record was completed, and parties filed motions for summary judgement, responses and replies, concluding in July 2017.
The Court held a hearing on 8 November 2017, to allow the parties to make oral arguments regarding summary judgment. On 30 November 2017, the Court granted summary judgment in favor of the Corps. The U.S. District Court for the Southern District of Iowa granted summary judgment in favor of the Corps of Engineers, on 30 November 2017. The Court ruled in favor of the Corps on two alternative grounds. First, the Court held that the cover letter, attached to the JD, was not a final agency action under the APA, and therefore not ripe for judicial review. Alternatively, the Court concluded that even if the matter was ripe for judicial review, the letter was not arbitrary, capricious, an abuse of discretion, or contrary to law. On 26 January 2018, Wendling appealed the District Court's decision to the 8th Circuit. On 29 March 2018 the parties filed a Stipulated Motion for Voluntary Dismissal of the appeal pending before the 8th Circuit. The parties agreed to pay their own respective fees and costs.
Following the legal proceedings, Wendling Quarries submitted mining plans and several dates for on-site excavation demonstrations were scheduled. Due to unfavorable river levels, no site visit or demonstration was completed. The mining plans were reviewed and a meeting ta the District Headquarters occurred June 14, 2018. On February 11, 2019, the District informed Wendling Quarries that their proposed temporary mining roads were not exempt from Clean Water Act permitting and a DA Permit will be required.
RG - Regulatory
Summarized Project Costs
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Major Work Item Current Year
FY 2019: We await Wendling Quarries DA 404 application.