Department of Justice Sues to Enforce Clean Water Act

On June 2, the Department of Justice (DOJ) brought a legal action in the Western District of New York against Wafler Nursery and Orchards (Wafler) that alleged Wafler violated Section 301 of the Clean Water Act by clearing land and then emptying the removed debris and sediment (fill) into federally owned wetlands without a permit from the U.S. Army Corps of Engineers (Corps). DOJ sought an injunction to stop the emptying of said fill into the wetlands, mandated clean-up of previously dumped fill at Wafler’s expense, and civil penalties.

According to the DOJ’s complaint, in May 2016, a Corps investigation led to a determination that “tree clearing and grading on the property had resulted in the discharge of dredged or fill materials…into approximately 4.68 acres of federal jurisdictional wetlands….” The complaint further asserted that Wafler failed to obtain a permit for the “discharge of the dredged or fill material into wetlands” even after the Corps issued a “Notice of Violation” in September of the same year. The notice, according to DOJ, “included aerial maps of the property [and] set forth requirements for resolution of the violation.”

DOJ further alleged that following the initial notice, Wafler contested “the acreage and stream location identified on the maps provided….” Subsequently, claimed DOJ, the Corps provided Wafler a second notice in February 2017 to which Wafler provided no reply. This, averred DOJ, resulted in a violation of Section 301(a), which “prohibits the discharge of pollutants into navigable waters except in compliance with, inter alia, a permit issued pursuant to CWA Section 404….”

DOJ ended the complaint by stating an injunction stands as the most appropriate legal remedy as “[u]nless enjoined, [Wafler is] likely to continue to allow dredged or fill material to remain in and/or continue to discharge dredged or fill material into waters of the United States located on the [property], in violation of CWA Section 301….” Specifically, DOJ requested that the injunction (1) require Wafler to stop “ discharging or causing the discharge of…fill material…into any waters of the United States except in compliance with the CWA” and (2) require Wafler to “undertake measures, at [Wafler’s] own expense and at the direction of the Corps, to effect complete restoration of waters of the United States…and conduct on-site and off-site mitigation to compensate for unauthorized impacts to waters of the United States….” Finally, DOJ requested “a civil penalty for each day of each violation of CWA Section 301” which, under 33 USC Sec. 1319(d), can be in amounts of up to $25,000 per day for each violation.