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UPDATE: EPA notified of "flagrant violations" in spoil bank project

U.S. Western District Courthouse
Posted at 11:23 AM, Jul 13, 2022
and last updated 2022-07-13 15:52:40-04

UPDATE: The U.S. Army Corps of Engineers has called in the U.S. Environmental Protection Agency to investigate "flagrant, wilfull violations" in an LCG spoil banks project.

The revelation came in a footnote of a Motion to Dismiss filed by the corps in a lawsuit brought by Lafayette City-Parish Government.

"The Corps became aware of Plaintiff’s execution of its [revised] “spoil bank project” with the filing of this lawsuit. The Corps has since, issued a Cease-and-Desist order to Plaintiff for unauthorized activity (at the property) citing Section 301, Clean Water Act (CWA) and Section 10, Rivers and Harbors Act (RHA) violations," the footnote states. "Investigations are still ongoing, but the case has been referred to EPA under its MOA with the Corps for flagrant, willful violations. Now that the Corps has issued a Cease-and-Desist Order to Plaintiff confirming (Clean Water Act and Rivers and Harbors Act) violations, Plaintiff’s recourses are to work with the Corps to resolve its violations and to develop an approved restoration plan, or challenge the Corps’ actions in federal court, once a final decision has been rendered. Now that the Corps has referred the case to the EPA for handling, the Corps must also coordinate with EPA."

The Motion to Dismiss was filed a week after a federal judge dismissed LCG's suit against St. Martin Parish; in it, the U.S. Army Corps of Engineers have asked that the claim against them be dismissed, as well, in a controversial spoil banks project.

In their motion for dismissal, filed Wednesday in federal court, the Corps argues that it has jurisdiction over the project and it is too soon to know if LCG violated any laws or not. The Motion is set for review August 31.

At issue is a project that LCG already has completed in St. Martin Parish, which removed decades-old levees on property partially owned by LCG. St. Martin Parish officials said that LCG did the project in the dark of night, and without permits from either the parish or the U.S. Army Corps of Engineers. LCG already had filed for a permit at a different location with the Corps; that permit application was withdrawn after St. Martin told the Corps that no parish permits for it would be granted.

LCG filed suit in state court, asking a judge to rule that the project was done properly. The U.S. Army Corps of Engineers had it removed to federal court, which is where it was dismissed last week - with regard to St. Martin Parish. The suit against the corps remains, records show.

To read about the dismissal of LCG's claim against St. Martin Parish, click here. The day after that suit was dismissed, St. Martin Parish filed suit against LCG in state court, asking a judge to order LCG to restore the spoil banks it removed. To read about that, click here.

In today's Motion to Dismiss, the Corps states that they have "authority to regulate navigable waters and dredging and filling of waters and wetlands." They tell the court that LCG initially submitted a permit application for the project, but then "subsequently withdrew the permit application on September 27, 2021, and claims to have revised the original project."

St. Martin Parish enacted an ordinance "which made it illegal for Plaintiff to perform the project without St. Martin’s consent. Despite the prohibitions of the St. Martin Ordinance, and without requesting a jurisdictional determination or permit from the Corps, in February 2022, Plaintiff executed its “revised” spoil bank project," the Corps' dismissal states.

The Corps also argues that it has jurisdiction under the Clean Water Act when a "navigable waterway" is involved, and does cover "dredged or fill material."

LCG states in its suit that "the work was not subject to Corps jurisdiction and permitting requirements because the “bifurcated” work was done in “upland areas” and no work was done in “wetlands or navigable waters.”

However, federal law "grants the Corps the sole authority to determine what qualifies as a “water of the United States," the Corps argues, and the Rivers and Harbors Act and the Clean Water Act "grant the Corps the sole authority to permit the modification of waters of the United States."

"The Corps has regulatory jurisdiction over Plaintiff’s claims," the Motion states.

The Corps argues also that the language LCG uses in its first complaint, and amended complaint, isn't consistent and is confusing, and so it's not clear if LCG is claiming it needed no Corps permit for the St. Martin Parish part of their project, or the Lafayette Parish part of their project, or both.

The LCG complaints also don't give enough information for anyone to find the project in question, or to know what was done; they don't identify the other "co-owners" of the property involved, nor do they identify the "experts" consulted to revise the original project.

"Plaintiff does not provide sufficient information about the alleged meeting or identifying information for the alleged Corps “investigative team” who indicated that there were no issues with Plaintiff’s reduction of the height of the spoil bank," the Motion states. "Plaintiff would need to allege facts to support its allegations on jurisdiction and Corps permit requirements, for this case to be plausible, and for the Corps to Answer or investigate the matter."

The Motion argues that the court should dismiss the LCG complaints because they don't contain the required legal language or information; in other words, based on those complaints the court can't even determine what LCG is asking, let along determine if that request should be granted. The complaints didn't even properly identify the people within the Corps that LCG is suing, the Motion states.

It's also too soon for this kind of suit, the Corps argues.

"Plaintiff requests relief which this court has no authority to grant. If Plaintiff wishes to be made aware of whether any Corps permit was required for the activities at issue in this claim, Plaintiff must first apply for an Approved Jurisdictional Determination utilizing the forms provided on the New Orleans District’s website.6 After a determination is made, if Plaintiff wishes to appeal the decision, Plaintiff should then exhaust its administrative remedies as outlined in (federal law) prior to bringing its claim before the judicial court system," the Motion states.

Even if LCG should have gotten a permit, they can still apply for one using the "after-the-fact" process with the Corps, the Motion states.