United States District Court, C.D. Illinois, Rock Island Division
CITY OF ROCK ISLAND, an Illinois municipal corporation, and VILLAGE OF MILAN, an Illinois municipal corporation, Plaintiffs,
UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, and LIEUTENANT GENERAL THOMAS P. BOSTICK, Chief of Engineers, sued in his official capacity only, Defendants.
SARA DARROW, District Judge.
Plaintiff Cities of Rock Island and Milan seek preliminary and permanent injunctions against Defendants United States of America, Army Corps of Engineers, and Lieutenant General Thomas P. Bostick (collectively, "the Corps") under the federal facilities provision of the Clean Water Act ("CWA"), 33 U.S.C. § 1323(a), the citizen suit provision of the CWA, 33 U.S.C. § 1365, the federal facilities provision of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300j-6(a)(2), and the citizen suit provision of the SDWA, 42 U.S.C. § 300j-8. Plaintiffs ask that the Corps be permanently enjoined to maintain the Mill Creek South Slough, where it has periodically operated a flood control project. The Corps now moves to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and, alternatively, moves for a judgment on the pleadings pursuant to Rule 12(c). Defs.' Mot. Dismiss, ECF No. 10. For the following reasons, Defendants' Motion to Dismiss, or, Alternatively, for Judgment on the Pleadings, ECF No. 10, is GRANTED.
The federal government built the Illinois and Mississippi Canal in 1895. The canal blocked the connection of Mill Creek, near Milan, to the Rock River. Mill Creek was diverted to connect instead to the South Slough. In response to flooding in Milan between 1895 and 1929, Congress authorized the Mill Creek South Slough Project ("MCSS Project"), which abated flooding in Milan by: constructing spillways where Mill Creek used to run into the Rock River; placing levees on both sides of Mill Creek; and dredging and realigning both Mill Creek and the South Slough, where a new channel, which ran more directly to the Mississippi River than its predecessor, was cut. In order to make these improvements, the Corps acquired real estate easements and property in an area extending both upstream and downstream from the former mouth of Mill Creek.
In 1951, the Illinois and Mississippi Canal was closed, and in 1963 the Corps diverted Mill Creek back to its original outlet into the Rock River. The Corps continued to maintain the levees and channels in the MCSS Project, however, because they were needed to manage the risk of flooding in Milan. In 1984, the Corps ceased regular maintenance of the MCSS Project, and in 1987, completed and turned over to the City of Milan a new comprehensive flood risk management project, the Local Flood Prevention Project ("LFPP"). The South Slough, the new MCSS channel, and the creeks that feed it were dredged to manage the risk of flooding in nearby residential areas of Milan. The Corps retains its real estate interests and operational authority for the MCSS Project to the present day. Maintenance actions performed by the Corps in the past on the MCSS Project have included "clearing, " "snagging, " and dredging.
The levees operated by the City of Milan along the banks of Mill Creek have gates that close when the water level of Mill Creek is high, and when it is not, remain open to permit drainage of runoff from the City of Milan. The water level of Mill Creek has risen, however, requiring that the city keep the levee gates shut, which causes the impounded runoff to run into the City's sanitary sewers. Plaintiffs maintain that such "[i]nflow or infiltration of the impounded runoff water into the Milan sanitary sewer going to the Milan [Sewage Treatment Plant, ("STP")] will likely hydraulically overload it and cause it to discharge inadequately treated sewage into the Rock River...." Compl. ¶32. Such sewage would be harmful to the environment. The emission of inadequately treated sewage would also cause the Milan STP to violate its National Pollutant Discharge Elimination System ("NPDES") permit for the emission of effluent.
When the Mississippi River floods, the water level in the South Slough rises. When the floodwater recedes into the Mississippi River, it does so through the old slough channel and the MCSS Project channel. Receding floodwaters leave behind debris and sediment in these channels, impeding their ability to drain water back into the Mississippi River and causing water levels in the South Slough to rise. Water has ponded in regions of the Milan LFPP, hindering its ability to prevent flooding. Water has also ponded over a concrete pipe, the Southwest Interceptor, owned and operated by the City of Rock Island. The line carries wastewater from Rock Island to the Rock Island Southwest Sewage Treatment Plant ("Southwest STP"), which discharges, pursuant to an NPDES permit, into Mill Creek. The ponding has submerged 1, 245 linear feet of the Southwest Interceptor, which, Plaintiffs claim, has resulted in the "likelihood" that there will be a break in the Interceptor. Compl. ¶ 44. This would lead to various possible pollution scenarios, including an "open rupture, " which would release "approximately 400, 000 gallons of raw sewage into the water around the line break per day." Id. Alternatively, Plaintiffs maintain, the Southwest Interceptor "may collapse in on itself, " which "would cause a back-up resulting in upstream overflows." Id. ¶ 46. Such ruptures would require repair, and result in Rock Island's STP violating the terms of its NPDES effluent emission permit.
Approximately two miles of Rock Island's municipal water main are also submerged. There is a "likelihood" that there will be a break along this water main, resulting in contamination of the water in the main, shutoff of the main while repairs are performed, and interruption of sanitary sewer service in the area. Compl. ¶ 105.
In 2009, Congress authorized $482, 000 for operation and maintenance of the MCSS Project. In 2011, drawing from these funds, the Corps undertook a one-time action to ameliorate high water conditions in the Mill Creek, lowering the water level to the point "where Milan does not have to keep the flood gates closed to prevent the high water from entering its sewer system during non-flood stage periods." Compl. ¶ 28. The Corps was to recommence these efforts in fall or winter of 2013-2014, id. ¶ 29, and continue until funding was exhausted. Plaintiffs estimate that the effects of this action are temporary and will last between one and five years, at the end of which time sedimentation, logs, and beaver dams will cause Mill Creek to suffer from high water levels once more, in turn requiring Plaintiffs to keep the levee gates closed and submerging, or continuing to submerge, the Southwest Interceptor and water main. Various pollution scenarios at either STP, the Southwest Interceptor, or the water main would, Plaintiffs claim, result in violations, variously, of NPDES permits and municipal and Illinois law, which would result in violations of the Clean Water and Safe Drinking Water Acts.
On May 24, 2013, Plaintiffs filed the instant suit, seeking a permanent injunction compelling the Corps to maintain the Mill Creek South Slough. In the motion now before the Court, Defendants move to dismiss the Complaint, or obtain judgment on the pleadings, on the basis of lack of subject matter jurisdiction. Defs.' Mot. Dismiss 1, ECF No. 10.
I. The Corps's Motion to Dismiss
Defendants argue that the Complaint should be dismissed because Plaintiffs have failed to establish standing, as they must for this Court to have subject matter jurisdiction. In the alternative, Defendants argue that this Court should enter judgment on the pleadings against Plaintiffs on all counts, because Plaintiffs' claims do not fall within any exceptions to the sovereign immunity of the United States. Because ...