Marquette Cty. Road Comm’n v. EPA

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0145n.06 No. 17-1154 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 20, 2018 MARQUETTE COUNTY ROAD COMMISSION, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT UNITED STATES ENVIRONMENTAL ) COURT FOR THE WESTERN PROTECTION AGENCY, et al., ) DISTRICT OF MICHIGAN ) Defendants-Appellees. ) ) BEFORE: BATCHELDER, GRIFFIN, and WHITE, Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. In 2011, Plaintiff-Appellant Marquette County Road Commission (“Road Commission”) applied to Michigan’s permitting authority— Michigan Department of Environmental Quality (“MDEQ”)—for a permit to fill 25 acres of wetlands to construct County Road 595. See 33 U.S.C. § 1344. MDEQ wanted to issue the application, but the U.S. Environmental Protection Agency (“EPA”)—which the Clean Water Act (“CWA”) empowers to oversee state-run permitting programs—objected to various aspects of the proposal. Despite the Road Commission’s numerous attempts to revise the permit application over the following months, EPA remained unsatisfied. Eventually, authority to resolve the permit application transferred to the Army Corps of Engineers (“Corps”). 33 U.S.C. § 1344(j); 40 C.F.R. § 233.50(j). Frustrated with the time and expense of the process, the Road Commission declined to continue the permit review process before the Corps and instead No. 17-1154, Marquette Cty. Road Comm’n v. EPA, et al. brought claims under the Administrative Procedure Act (“APA”) against EPA and the Corps based on EPA’s refusal to approve the issuance of the application and the Corps’ requirement that the Road Commission re-submit its application materials to continue the process. The district court determined that neither of these agency actions constituted a final agency action. The district court also rejected the Road Commission’s alternative arguments that EPA’s objections were reviewable, non-final agency action and that completion of the Corps review process would have been futile. The district court dismissed the suit. We agree and AFFIRM. I. Section 404 of the CWA regulates the release of dredged and fill matter into waterways, including wetlands. See § 33 U.S.C. § 1344. Generally, the Secretary of the Army oversees Section 404 permitting through the Corps. See id. However, the CWA also allows states to administer their own Section 404 permitting programs subject to federal approval and oversight by EPA. See id. § 1344(g)-(j); 40 C.F.R. §§ 233.16, 233.20, 233.50, 233.52, 233.53. Michigan is one of two states having federal approval to operate its own permitting program. State-run permitting programs such as Michigan’s are subject to rigorous EPA oversight. See 33 U.S.C. § 1344(j); 40 C.F.R. § 233.50. For example, states must submit copies of each permit application to EPA and notify EPA of any action that they take with respect to these applications. 33 U.S.C. § 1344(j).1 If EPA intends to comment on a state’s handling of an application, it must notify the state within thirty days and submit comments to the state within ninety days. Id. Once EPA notifies a state that it intends to comment on the permit application, a state ...

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