APPEALS from the Environmental Review Appeals Commission, ERAC Nos. 486448, 626449, 096450, 256451.
National Wildlife Federation Great Lakes Regional Center, and Neil S. Kagan, pro hac vice; and Peter A. Precario, for appellants.
Michael DeWine, Attorney General, Janean R. Weber and Christine L. Rideout, for appellees.
(¶ 1} Appellants, Western Lake Erie Association, now known as Lake Erie Waterkeeper, Inc.), Lake Erie Charter Boat Association, Izaak Walton League of America, Ohio Division, and Ohio Environmental Council, (collectively, "appellants"), appeal the order of the Environmental Review Appeals Commission ("ERAC") finding that the Director of the Ohio Environmental Protection ("the Director" or "Ohio EPA") acted reasonably and lawfully in issuing a certification to the United States Army Corps of Engineers ("the Corps") to allow maintenance dredging of the navigation channel of Toledo Harbor and the disposal of the dredged material into the western basin of Lake Erie. For the following reasons, we affirm ERAC's order.
(¶ 2} Appellants present the following assignments of error:
[I.] The order of the Environmental Review Appeals Commission upholding the decision to certify sediment dumping in Lake Erie was not in accordance with law.
[II.] The order of the Environmental Review Appeals Commission upholding the decision to certify sediment dumping in Lake Erie is not supported by the requisite quantum of reliable, probative, and substantial evidence.
Factual and Procedural History
(¶ 3} Lake Erie is the shallowest of the Great Lakes, with the western basin, where the disposal took place, having an average depth of 24 feet. Lake Erie is "the warmest and most biologically productive of the Great Lakes." Appellants' exhibit No. 9; Appellee's exhibit No. 2. The Maumee River is the greatest tributary into the western basin, approximately 4.2 million acres with a large portion of that being agricultural land use. The main two contaminants commonly found in the western basin are phosphorus and suspended sediments. Rain hits the agricultural fields and the run off brings sediment into the river and eventually high levels of sediment gradually accumulate. Lake Erie is the Great Lake most subjected to sediment loading, especially due to intensive agricultural development. Much of the Lake Erie shoreline experiences active erosion, especially during storms and periods of high water. The western basin is the most turbid region. Phosphorus is considered the main culprit of accelerated eutrophication in Lake Erie.
(¶ 4} The United States and Canada agreed to the Great Lakes Water Quality Agreement of 1978 "to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosytem." Appellants' exhibit No. 9, Appellee's exhibit No. 2. The agreement committed the United States and Canada to address water quality issues of the Great Lakes in a coordinated, joint fashion. To achieve this goal, the United States and Canada agreed to develop and implement a Lakewide Management Plan ("LaMP") for each lake. The LaMP identified several impairments to Lake Erie, including: (1) degradation of fish populations; (2) degradation of wildlife populations and loss of wildlife habitat; (3) degradation of benthos communities; (4) eutrophication or undesirable algae; (5) recreational water quality impairments; (6) degradation of aesthetics; (7) degradation of phytoplankton and zooplankton populations; and (8) loss of fish habitat.
(¶ 5} On September 8, 2009, the Corps applied to the Ohio EPA for a 401 Certification proposing dredging Toledo Harbor and discharging the material in an open-lake disposal site in the western basin of Lake Erie. The application provides that dredging was necessary to maintain sufficient water depths for deep-draft commercial navigation. The dredging is necessary because large amounts of sediment are deposited into the western basin. Pursuant to the Clean Water Act, 33 U.S.C. 1341, the state must certify that the activities authorized by Section 404 of the Clean Water Act will comply with 33 U.S.C. 1311-13; 1316-17.
(¶ 6} On April 15, 2010, the Director authorized the Corps to dump 800, 000 cubic yards of dredged material during calendar year 2010 into the western basin of Lake Erie. On May 13, 2010, appellants appealed the certification to ERAC seeking a review of the Director's decision.
(¶ 7} A de novo hearing was held by ERAC August 23 through August 25, 2010. ERAC did not issue its order until February 29, 2012, finding that the Director acted reasonably and lawfully in issuing the 401 Certification to the Corps. The ERAC order was issued after the Corps had completed dumping the dredged sediment into Lake Erie. Appellants filed a timely notice of appeal to this court.
(¶ 8} As a preliminary matter, the Corps filed a notice of lack of subject-matter jurisdiction with this court. The Corps asserted the defenses of sovereign immunity and supremacy under U.S. Constitution, but did not specify the waiver of immunity or exception found in the Clean Water Act.
(¶ 9} In the Clean Water Act, 33 U.S.C. 1344(t), Congress waived the federal government's sovereign immunity with respect to state regulation of dredging and water pollution, as follows:
(t) Navigable waters within State jurisdiction Nothing in this section shall preclude or deny the right of any State or interstate agency to control the discharge of dredged or fill material in any portion of the navigable waters within the jurisdiction of such State, including any activity of any Federal agency, and each such agency shall comply with such State or interstate requirements both substantive and procedural to control the discharge of dredged or fill material to the same extent that any person is subject to such requirements. This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation.
(¶ 10} Immunity was also waived under 33 U.S.C. 1323(a), which provides when a federal agency must comply with State controls of water pollution, as follows:
Each department, agency * * * shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity. * * * [This] shall apply (A) to any requirement whether substantive or procedural (including any record keeping or reporting requirement, * * * any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies * * * under any law or rule of law.
(¶ 11} It is clear from these federal statutes that there is a limited waiver of sovereign immunity under the Clean Water Act. See State of Delaware Dept. of Natural Resources and Environmental Control v. U.S. Army Corps of Engineers, 681 F.Supp.2d 546, 555 (D.Del. 2010); Friends of the Earth v. U.S. Navy, 841 F.2d 927, 935 (9th Cir.1988). In cases where the federal government is an alleged polluter, "Congress indicated its intent to require governmental entities to comply with pollution requirements to the same extent as nongovernmental polluters." Olmstead Falls v. U.S. Environmental Protection Agency, 233 F.Supp.2d 890, 897 (N.D.Ohio 2002).
(¶ 12} However, 33 U.S.C. 1344(t) and 33 U.S.C. 1371(a) further limit the limited waiver of sovereign immunity. 33 U.S.C. 1371(a) provides that the Clean Water Act generally "shall not be construed as * * * affecting or impairing the authority of the Secretary of the Army * * * to maintain navigation." See In re: Operation of the Missouri River Sys. Litigation, 418 F.3d 915, 918 (8th Cir.2005).
(¶ 13} In this case, the Corps simply asserts sovereign immunity and supremacy under the U.S. Constitution. The Corps did not indicate that its ability to maintain navigation has been impaired in any way and there is no specific reliance on the navigation exception to the waiver of sovereign immunity. However, the conduct at issue in this case, is the conduct of the state in granting the 401 Certification, not any action taken by the Corps. The issue is whether the courts of Ohio have jurisdiction over the Director and in this case, they certainly do.
(¶ 14} There is an issue of whether this case is moot since the dredging and dumping of the sediment occurred in 2010. The courts are "to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies. The extension of this principle includes * * * questions which are moot." Fortner v. Thomas, 22 Ohio St.2d 13, 14 (1970). Actions are moot when:
"[T]hey are or have become fictitious, colorable, hypothetical, academic or dead. The distinguishing characteristic of such issues is that they involve no actual genuine, live controversy, the decision of which can definitely affect existing legal relations. * * * 'A moot case is one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason cannot have any practical legal effect upon a then-existing controversy.' "
In re L.W., 168 Ohio App.3d 613, 2006-Ohio-644, ¶ 11 (10th Dist.), quoting Grove City v. Clark, 10th Dist. No. 01AP-1369, 2002-Ohio-4549, ¶ 11, quoting Culver v. Warren, 84 Ohio App. 373, 393 (7th Dist.1948).
(¶ 15} There is an exception to the mootness doctrine, which involves issues that are capable of repetition, yet evading review. "This exception applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231 (2000). "[T]here must be more than a theoretical possibility that the action will arise again." Robinson v. Indus. Comm., 10th Dist. No. 04AP-1010, 2005-Ohio-2290, ¶ 8, quoting James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 792 (10th Dist.1991).
(¶ 16} In the case at bar, the challenged action in this case, the granting of the certification, is too short in its duration to be fully litigated before its cessation or expiration. Appellants filed an appeal with ERAC within one month of the Director's issuing the 401 Certificate to the Corps. The certificate allowed dredging and disposal to occur in the 2010 calendar year. ERAC's hearing took place in August 2010, but ERAC's order was not issued until February 29, 2012, by which time the dredging and dumping had taken place and the 401 Certification had expired.
(¶ 17} Toledo Harbor requires dredging on a consistent basis to remain open. There is a reasonable expectation that the Corps will seek open lake disposal of dredged material which many of the plaintiffs in this case will certainly oppose in the future. In fact, appellants' counsel explained during oral argument to this court that in each successive year since 2010, the Corps had applied for 401 Certification and the Ohio EPA had granted such. Appellants appealed each certification and ERAC is holding those appeals until a decision in this case is reached. Thus, this case meets both requirements necessary to apply the exception to the mootness doctrine in cases for issues that are capable of repetition, yet evading review and this case, therefore, falls within the exception to the mootness doctrine.
Standard of Review
(¶ 18} Since they are related, and to avoid repetition, we will address appellants' assignments of error together. Essentially, appellants argue that ERAC's order is not supported by reliable, probative, and substantial evidence and is not in accordance with law. In reviewing ERAC orders, R.C. 3745.06 provides that this court "shall affirm the order" if we find "upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, * * * [the court] shall reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law."
(¶ 19} Reliable evidence is "evidence which can be trusted. In order for evidence to be reliable, there must be a reasonable probability that it is true. Probative evidence is evidence which tends to prove the issue in question, while substantial evidence is evidence which carries weight, or evidence which has importance and value." Perrysburg v. Schregardus, 10th Dist. No. 00AP-1403 (Nov. 13, 2001), citing Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992). In determining whether an ERAC order is supported by reliable, probative, and substantial evidence, this court must weigh and evaluate the credibility of the evidence. Parents Protecting Children v. Korleski, 10th Dist. No. 09AP-48, 2009-Ohio-4549, ¶ 10. However, in doing so, we must remember that the General Assembly created these administrative bodies to facilitate certain areas of the law by placing the administration of those areas before members with special expertise and thus, we afford due deference to ERAC's interpretation of rules and regulation and resolution of evidentiary ...