United States District Court, W.D. Virginia, No. 3:09-cv-00075, September 29, 2010: This attempt by a conservation easement holder to defend the easement area from treated sewage discharge under a state-issued NPDES permit failed as the Court held that US EPA’s decision not to object to the permit did not require prior review under the National Historic Preservation Act (NHPA).
Historic Green Springs, Inc. (“HGS”) holds conservation easements on several thousand acres in the Green Springs Landmark District, including agricultural land and 250 18th and 19th century structures. HGS objected to a permit to discharge treated sewage into a creek that runs through the easement lands. Under the Clean Water Act (CWA) the US EPA delegated to Virginia the authority to grant National Pollution Discharge Elimination System (“NPDES”) permits in the state. When EPA delegates permit granting authority it retains oversight, and “[t]he State must advise the EPA of each permit it proposes to issue, and the EPA may object to any permit”. EPA did not object to this permit.
HGS contended that EPA had a non-discretionary duty under the Clean Water Act, and thereby under NHPA, to review decision whether to object to the NPDES permit in terms of the affect on protected historic sites.
The District Court noted that because the NHPA does not contain a private cause of action, HGS must bring its claim under the APA. “Judicial review is unavailable under the APA where the challenged “agency action is committed to agency discretion by law,” and suits against the EPA and EPA Administrators are barred by sovereign immunity if there has been no “failure of the [EPA] Administrator to perform any act or duty under [the CWA] which is not discretionary with the Administrator.”
The Court held that EPA’s failure to object is not an approval, the decision whether to object is discretionary, and that only a non-discretionary duty by EPA could bring its decision not to object within the NHPA. The Court said there is no “approval” because the NPDES regulation at “[40 CFR] 122.49 does not mandate the application of the NHPA where the EPA merely reviews a draft NPDES permit transmitted by a State, because in such circumstances the Regional Administrator does not issue a license or permit.” Focusing on Section 110(f) of the NHPA , the Court said “the weight of persuasive authority concerning the NHPA supports the distinction between the affirmative action on the part of a Federal agency, which gives rise to the cited duties under the NHPA, and the failure to object or intervene, which does not. Cf. Nat’l Trust for Historic Preservation v. Dep’t of State, 834 F.Supp. 443, 450 (D.D.C. 1993)… Therefore, Section 110(f) of the NHPA does not necessitate action on the part of the EPA”. The Court granted EPA’s Motion to Dismiss.
Commentary: Although the Court also noted that, “Under Section 106 of the NHPA, any federal agency that has ‘direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State’ or ‘any Federal department or independent agency having authority to license any undertaking’ must study ways to avoid or mitigate any adverse impacts the undertaking could have upon historic properties included in, or eligible to be included in, the National Register” [emphasis added by PLD], the Court did not discuss whether that mandate created a non-discretionary duty. Apparently the Court was saying the non-discretionary duty that could trigger an NHPA review had to exist within the CWA, as the statutory scheme within which the EPA activity occurred.
Decision available at http://scholar.google.com/scholar_case?case=5303233359556438798&q=%22United+States+District+Court,+W.D.+Virginia,+Charlottesville+Division%22&hl=en&as_sdt=40000003&as_ylo=2010&as_yhi=2010.