Team No. 1

C.A. No. 13-1246

Civ. No. 148-2011

_____________________________________________________________________________

IN THE UNITED STATES

COURT OF APPEALS FOR THE TWELFTH CIRCUIT

______________________________________________________________________________

NEW UNION WILDLIFE FEDERATION

Plaintiff-Appellant

v.

NEW UNION DEPARTMENT OF ENVIRONMENTAL PROTECTION

Intervenor-Appellant

v.

JIM BOB BOWMAN

Defendant-Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

NEW UNION

Brief for NEW UNION WILDLIFE FEDERATION, Plaintiff-Appellant

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. NEW UNION WILDLIFE FEDERATION (NUWF) HAS STANDING TO SUE

BECAUSE IT REPRESENTS INDIVIDUAL MEMBERS WHO HAVE

DEMONSTRATED AN INJURY IN FACT FAIRLY TRACEABLE TO THE

CLEARING OF BOWMAN’S FIELD AND REDRESSABLE BY THIS COURT

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. This Court should find that NUWF has constitutional standing to bring this suit under

Article III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

1. NUWF satisfies the test for an association to bring suit on behalf of its members

Milford, Norton, and Lawless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

a. NUWF‟s members have standing to sue in their own right. . . . . . . . . . . . . . . . .6

b. The interests NUWF seeks to protect are germane to its purpose. . . . . . . . . . . .7

c. Neither the claim asserted by NUWF nor the relief requested requires the

participation of any individual members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

2. Actual environmental damage is not required to establish standing, merely the threat

and a showing of injury to the plaintiff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

iii

B. NUWF satisfies the requirements to bring suit under the standing test from Valley

Forge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. The injuries contained in the affidavits of the members are sufficient to show

injuries that are not merely speculative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

2. While Norton may have illegally hunted in the cleared field, the impact on his legal

hunting activities in the buffer zone gives him a cognizable injury. . . . . . . . . . . . .11

3. The injuries in fact are fairly traceable to the clearing of the Bowman property and

redressable by this Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

II. THIS COURT HAS SUBJECT MATTER JURISDICTION BECAUSE

DREDGE AND FILL MATERIALS, STILL PRESENT IN THE FORMER

WETLAND, CONSTITUTE A CONTINUING VIOLATION AS REQUIRED BY

SECTION 505(a) OF THE CLEAN WATER ACT. . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Subject matter jurisdiction over Bowman‟s continuing violation is consistent with the

Supreme Court‟s holding in Gwaltney because NUWF has made a good faith allegation

of a continuous violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. The continued presence of dredged and fill material constitutes an ongoing violation. . .16

1. The ongoing violation approach to illegally discharged dredge and fill material in

wetlands is consistent with the continuing violation jurisdictional requirement of the

CWA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

2. This Court should hold that the continued presence of dredge and fill material

constitutes an ongoing violation because such an approach is consistent with the

application of the statute of limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

III. NUWF’S SUIT IS NOT BARRED BY SECTION 505(b) OF THE CWA

BECAUSE NUDEP’S EFFORTS DO NOT QUALIFY AS DILIGENT

PROSECUTION AND THE STATUTORY REQUIREMENTS OF THE CWA

ARE NOT JURISDICTIONAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. This Court should find that NUDEP‟s actions do not qualify as diligent prosecution.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iv

B. The statutory notice provisions of the CWA are not jurisdictional and thus the

district court erred in holding it lacked subject matter jurisdiction due to prior action.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

IV. BOWMAN’S ACTIVITIES SATISFY THE “ADDITION” ELEMENT FOR

DISCHARGE OF A POLLUTANT INTO NAVIGABLE WATERS FROM A

POINT SOURCE, THEREFORE BOWMAN VIOLATED THE CLEAN WATER

ACT BY NOT OBTAINING A SECTION 404 PERMIT. . . . . . . . . . . . . . . . . . . . . . 25

A. Bowman‟s activities constituted “addition” because he transformed a material from a

non-pollutant into a pollutant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

B. The “outside world” definition of “addition” used by the EPA for section 402

permits does not apply to section 404 permits because that usage would frustrate the

intent of Congress by reading section 404 out of the Clean Water Act. . . . . . . . . . .29

C. The EPA did not include a definition of “addition” in a regulation when the “Water

Transfer Rule” was codified, therefore that EPA interpretation of “addition” is not

codified or entitled to Chevron Deference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

v

TABLE OF AUTHORITIES

United States Supreme Court Cases

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Duke Power Co. v. Carolina Envtl. Study Grp., Inc.,

438 U.S. 59 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8

Gwaltney of Smithfield v. Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-18

Henderson ex rel. Henderson v. Shinseki.,

131 S. Ct. 1197 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

Hunt v. Wash. State Apple Adver. Comm’n.,

432 U.S. 333 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Int’l. Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. Brock,

477 U.S. 274 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 11

Reed Elsevier, Inc. v. Muchnick,

130 S. Ct. 1237 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Sierra Club v. Morton,

405 U.S. 727 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians,

541 U.S. 95 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Sorenson v. Sec’y of Treasury of U.S.,

475 U.S. 851 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

vi

United States v. Mead Corp.,

533 U.S. 218 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Students Challenging Regulatory Agency Procedures (SCRAP),

412 U.S. 669 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Valley Forge Christian Coll. v. Am. United for Separation of Church and State,

454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9-13

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States Circuit Court of Appeals Cases

Adkins v. VIM Recycling, Inc.,

644 F.3d 483 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Avoyelles Sportsmen’s League, Inc. v. Marsh,

715 F.2d 897 (5th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 30

Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd.,

791 F.2d 304 (4th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Chesapeake Bay Found. Inc. v. Gwaltney of Smithfield, Ltd.,

844 F.2d 170 (4th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ecological Rights Found. v. Pac. Lumber Co.,

230 F.3d 1141 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist.,

382 F.3d 743 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,

204 F.3d 149 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Friends of the Everglades v. South Fla. Water Mgmt. Dist.,

570 F.3d 1210 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Karr v. Hefner,

475 F.3d 1192 (10th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vii

La. Envtl. Action Network v. City of Baton Rouge,

677 F.3d 737 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs,

145 F.3d 1399 (D.C. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Nat’l Wildlife Fed’n v. Consumers Power Co.,

862 F.2d 580 (6th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Nat’l Wildlife Fed’n v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 29, 30

Pa. Psychiatric Soc’y v. Green Spring Health Servs.,

280 F.3d 278 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md.,

523 F.3d 453 (4th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pub. Interests Research Grp. of N.J., Inc. v. Powell Duffryn Terminals, Inc.,

913 F.2d 64 (3d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Retired Chi. Police Ass’n v. City of Chi.,

7 F.3d 584 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rybachek v. U.S. E.P.A.,

904 F.2d 1276 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Sasser v. Adm’r, U.S. E.P.A.,

990 F.2d 127 (4th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

Sierra Club v. Chevron U.S.A., Inc.,

834 F.2d 1517 (9th Cir.1987) . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Vill. of Elk Grove Vill. v. Evans,

997 F.2d 328 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Cumberland Farms of Conn., Inc.,

647 F.Supp. 1166 (D. Mass. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

United States v. Deaton,

209 F.3d 331 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26-28, 30

viii

United States v. Huebner,

752 F.2d 1235 (7th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

United States v. M.C.C. of Fla., Inc.,

772 F.2d 1501 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 33

United States District Court Cases

Aiello v. Town of Brookhaven,

136 F.Supp. 2d 81 (E.D.N.Y. 2001) . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Atl. States Legal Found., Inc. v. Hamelin,

182 F.Supp. 2d 235 (N.D.N.Y., 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Brewer v. Ravan,

680 F.Supp. 1176 (M.D.Tenn.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

City of Mt. Park, GA v. Lakeside at Ansley, LLC,

560 F.Supp. 2d 1288 (N.D. Ga. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Friends of Santa Fe Cnty. v. LAC Minerals,

892 F.Supp. 1333 (D.N.M.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Greenfield Mills, Inc. v. Goss,

1:00 CV 0219, 2005 WL 1563433 (N.D. Ind. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Informed Citizens United, Inc. v. USX Corp.,

36 F.Supp. 2d 375 (S.D. Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

N.C. Wildlife Fed’n v. Woodbury,

No. 87-584, 1989 WL 106517, (E.D.N.C. Apr. 25, 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 19

Ohio Valley Envtl. Coal., Inc. v. Hobet Mining, LLC.,

2008 WL 5377799 (S.D.W.Va. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co.,

808 F.Supp.2d 868 (S.D.W.Va. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Kovich,

820 F.Supp. 2d 859 (N.D. Ind. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

ix

United States v. Bay-Houston Towing Co., Inc.,

33 F. Supp. 2d 596 (E.D. Mich. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Ciampitti,

669 F.Supp. 684 (D.N.J. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

United States v. Sinclair Oil Co.,

767 F.Supp. 200 (D.M.T. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

United States v. Reaves,

923 F.Supp. 1530 (M.D. Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

U.S. Pub. Interest Research Grp. v. Stolt Sea Farm, Inc.,

Civil No. 00-149-B-C, 2002 WL 240386, (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Wilson v. Amoco Corp.,

33 F.Supp. 2d 969 (D. Wyo. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Constitution

U.S. Const. Art. III, §2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Federal Statutes

5 U.S.C. § 706(2) (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

33 U.S.C. § 1251(a) (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 22

33 U.S.C. § 1291 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

33 U.S.C. § 1311 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

33 U.S.C. §1318 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

33 U.S.C. § 1342 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26, 30

33 U.S.C. § 1344 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 31

33 U.S.C. § 1365 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim

28 U.S.C. § 2462 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Federal Regulations

x

33 C.F.R. § 323.2 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

40 C.F.R. § 230 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

40 C.F.R. § 230.41(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

40 C.F.R. § 232.2 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

58 Fed.Reg. 45,008, 45,013/3 (Aug. 25, 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Fed. Reg. 33,697. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

1

JURISDICTIONAL STATEMENT

Plaintiff-Appellant New Union Wildlife Federation filed a Complaint against the

Defendant Jim Bob Bowman in the United States District Court for the District of New Union

pursuant to 28 U.S.C. section 1331 (1995). On June 1, 2012, the district court granted the

defendant‟s motion for summary judgment on all counts and denied New Union Wildlife

Federation‟s motion for summary judgment on all counts. The district court‟s order is a final

decision, and jurisdiction in this court is therefore proper under 28 U.S.C. § 1291 (2006).

STATEMENT OF THE ISSUES

I. Whether the New Union Wildlife Federation has standing to sue Jim Bob Bowman

because NUWF represents individual members who have demonstrated an injury in fact

fairly traceable to the clearing of Bowman‟s field.

II. Whether this Court has subject matter jurisdiction because the presence of dredged and

fill materials constitute a continuing violation under section 505(a) of the Clean Water

Act.

III. Whether NUWF‟s suit is barred because NUDEP diligently prosecuted Bowman.

IV. Whether Bowman‟s actions required a Clean Water Act section 404 permit for the

discharge of dredged or fill material because his land-clearing and redeposit of dredged

soil constituted “addition” of a pollutant into navigable waters from a point source.

STATEMENT OF THE CASE

This appeal is from the final order of the District Court for the District of New Union

granting the Defendant Jim Bob Bowman‟s motion for summary judgment on all counts and

denying New Union Wildlife Federation‟s motion for summary judgment on all counts. (R. at

11). The New Union Wildlife Federation filed an action against Bowman under the Clean Water

2

Act (CWA) section 505(b) for filling wetlands without a permit in violation of sections 301(a)

and 404 of the CWA. Id. §§ 1356, 1311(a), 1344. (R. at 3). The New Union Department of

Environmental Protection intervened. Id.

The district court held that NUWF did not have standing to sue Bowman, that the court

lacks subject matter jurisdiction because all violations are wholly past and due to prior state

action, and that Bowman did not violate the Clean Water Act. (R. at 11). NUWF and NUDEP

each filed a Notice of Appeal. NUWF challenges all four counts of the district court‟s holding.

NUDEP challenges the holdings that NUWF did not have standing and that Bowman did not

violate section 404 of the Clean Water Act, id. § 1344.

STATEMENT OF THE FACTS

Jim Bob Bowman (Bowman) is a landowner in the State of New Union. (R. at 3).

Bowman‟s property is near the town of Mudflats and consists of one thousand acres of wooded

or previously wooded land adjacent to the Muddy River. (R. at 3). The river, more than five-

hundred feet wide and more than six feet deep where it borders Bowman‟s property, is

commonly used for recreational navigation for miles both upstream and downstream from

Bowman‟s property. (R. at 3). Of Bowman‟s one-thousand acres, 650 feet of the property is on

the shoreline of the Muddy River. (R. at 3). The property is covered with trees and other

vegetation characteristic of wetlands, and the parties agree that Bowman‟s property is a wetland

as determined by the U.S. Army Corps of Engineers (COE) Wetlands Determination Manual.

(R. at 3-4). The property is hydrologlically connected to the Muddy River. (R. at 3).

Bowman began land clearing operations on June 11, 2011, knocking down trees and

leveling vegetation with bulldozers. (R. at 4). Bowman bulldozed the leveled trees and

vegetation into windrows that he then burned. (R. at 4). Next, the leveled trees, vegetation, and

3

ashes were pushed into trenches created with a bulldozer. (R. at 4). He again leveled the

resulting field, pushing the soil from the high area of the field down into the newly created

trenches and the low lying areas of the field. (R. at 4). Finally, Bowman made a wide ditch at

the back of his property that ran to the river and drained the field into the Muddy River. (R. at

4). Because it was the most difficult part of his land to work with the bulldozer, especially when

saturated, Bowman left a strip of the land adjacent to the Muddy River, approximately 150 feet

wide, to clear after it had drained. (R. at 4). The un-bulldozed strip runs along the 650 foot

length of river front of the property. (R. at 4). Bowman completed his work to drain the field

into the Muddy River on or about July 15, 2011. (R. at 4).

NUWF organized under the laws of state of New Union, is a not for profit corporation

whose purpose is to protect the fish and wildlife of the state by protecting their habitats. (R. at

4). This membership-run organization is funded by its members‟ dues, contributions, and has a

member-elected Board of Directors which elects the officers, including the President. (R. at 4).

STANDARD OF REVIEW

The district court granted summary judgment in Defendant Jim Bob Bowman‟s favor on

all counts. This Court reviews grants of summary judgment under the de novo standard of

review. Natural Res. Def. Council v. U.S. E.P.A., 542 F.3d 1235 (9th Cir. 2008). Review of

regulations promulgated by agencies like the EPA and COE are governed by the Administrative

Procedure Act (APA). 5 U.S.C. § 706(2) (1988).

SUMMARY OF THE ARGUMENT

The New Union Wildlife Federation establishes standing because it represents individual

members who have demonstrated an injury in fact fairly traceable to the damage caused by

4

Bowman‟s activities. NUWF has a reasonable fear that its recreational and aesthetic interests are

adversely affected by the destruction of the wetlands on Bowman‟s property.

This Court has subject matter jurisdiction over this suit under the Clean Water Act

because the continued presence of dredge and fill material constitutes an ongoing violation of

Bowman‟s failure to get a 404 discharge permit. 33 U.S.C. § 1365(a) (2006). This ongoing

violation can be redressed by restoration of the wetlands and is therefore not wholly past.

The New Union Wildlife Federation‟s suit is not barred under section 505(b) of the CWA

because the New Union Department of Environmental Protection did not diligently prosecute

Bowman. The remedial steps NUDEP had Bowman agree to take regarding his violations were

not capable or sufficient to require compliance with the CWA and as such fail to rise to the level

of diligent prosecution.

Bowman violated the Clean Water Act by failing to obtain a 404 permit for the discharge

of dredge and fill material from the COE because the redeposit of dredged soil into a wetland

constitutes an addition of a pollutant to a navigable water from a point source. The EPA‟s use of

the “outside world” definition of addition and the “unitary navigable waters” theory in the

context of 402 permits is not applicable to the 404 program because such a use would undermine

the intent of Congress by reading the program out of the Clean Water Act.

5

ARGUMENT

I. NEW UNION WILDLIFE FEDERATION (NUWF) HAS STANDING TO SUE

BECAUSE IT REPRESENTS INDIVIDUAL MEMBERS WHO HAVE

DEMONSTRATED AN INJURY IN FACT FAIRLY TRACEABLE TO THE

CLEARING OF BOWMAN’S FIELD AND REDRESSABLE BY THIS COURT.

Before the judicial system can consider and rule on a matter, the United States

Constitution requires the existence of a case or controversy. U.S. Const. art. III, § 2. To invoke

the power of the judiciary, the Supreme Court requires plaintiffs to have standing “to challenge

the action sought to be adjudicated in the lawsuit.” Valley Forge Christian Coll. v. Am. United

for Separation of Church and State, 454 U.S. 464, 471 (1982). In order to establish standing to

bring a legal suit, plaintiffs must prove three things: (1) they have sustained an injury in fact, (2)

that the injury is fairly traceable to the alleged violations, and (3) that the injury is redressable by

the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

A. This Court should find that NUWF has constitutional standing to bring this suit under

Article III.

The Clean Water Act confers standing on any “„person or persons having an interest

which is or may be adversely affected.‟” Friends of the Earth v. Gaston Copper Recycling

Corp., 204 F.3d 149, 155 (4th Cir. 2000) (quoting 33 U.S.C. § 1365(g) (1987)). The Supreme

Court has held that “[w]hile generalized harm to the forest or the environment will not alone

support standing, if that harm in fact affects the recreational or even the mere aesthetic interests

of the plaintiff, that will suffice.” Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009)

(citing Sierra Club v. Morton, 405 U.S. 727, 734-36 (1972)). In fact, “even a small probability

of injury is sufficient to create a case or controversy- to take a suit out of the category of the

hypothetical- provided of course that the relief sought would, if granted, reduce the probability.”

Vill. of Elk Grove Vill. v. Evans, 997 F.2d 328, 329 (7th Cir. 1993) (citations omitted).

6

1. NUWF satisfies the test for an association to bring suit on behalf of its

members Milford, Norton, and Lawless.

When the plaintiff is an association, standing is conferred to bring the suit on behalf of its

members when “(a) its members would otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are germane to the organization‟s purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of individual members in the lawsuit.”

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). Additionally, the

“relevant showing for purposes of Article III standing, however, is not injury to the environment

but injury to the plaintiff.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 181 (2000).

a. NUWF‟s members have standing to sue in their own right.

To support standing, NUWF produced affidavits from three of its members, Dottie

Milford, Zeke Norton, and Effie Lawless. (R. at 6). All three swore to using the Muddy River

for recreational uses, including using the Bowman property and surrounding areas for picnicking.

(R. at 6). They all felt a loss of wetlands would pollute the Muddy and felt a loss from the

destruction of the wetlands on the Bowman property. (R. at 6). Milford testified she observed

the Muddy to be more polluted than before the clearing of the Bowman field, and Norton

testified that his recreational and subsistence frogging operations have suffered greatly. (R. at 6).

Under the Clean Water Act, standing is granted to “any citizen” to “commence a civil

action on his own behalf” against anyone “who is alleged to be in violation” with regards to “an

effluent standard or limitation under this chapter.” 33 U.S.C. § 1365(a) (2006). For the purposes

of this section, a citizen is defined as “a person or persons having an interest which is or may be

adversely affected.” 33 U.S.C. § 1365(g) (2006).

7

The Supreme Court considered the citizen suit provision of the Clean Water Act in the

Laidlaw case. 528 U.S. at 701. In that case, two environmental groups filed a citizen suit

against a company that obtained a permit to discharge treated water into a river. Id. Both

organizations submitted affidavits from their members who stated they enjoyed various

recreational activities along the river, such as picnicking and canoeing, and their enjoyment of

these activities were lessened by concern over the discharge. Id. at 704-705. The Court found

that these averments showed the individuals were persons “for whom the aesthetic and

recreational values of the area will be lessened” by the Laidlaw discharge. Id. (quoting Morton,

405 U.S. at 735).

Here, much like the members of the environmental groups in Laidlaw, Dottie Milford,

Zeke Norton, and Effie Lawless meet the definition of citizen under the Clean Water Act because

they have an interest which may be “adversely affected” by Bowman‟s activity. All three have a

recreational interest that they fear will be impacted by the clearing of Bowman‟s field, including

picnicking and boating interests exactly like those found in the Laidlaw case. Each would have

the ability to bring a suit under the Clean Water Act to protect their interests against Bowman‟s

violation of the Act. Therefore, NUWF satisfies the first prong to gain associational standing as

representative of its member‟s interests.

b. The interests NUWF seeks to protect are germane to its purpose.

NUWF is a not for profit corporation that exists as a membership organization funded by

the dues paid by its members and contributions from donors who support NUWF‟s efforts. (R. at

4). Its primary purpose is acting to protect the fish and fauna of New Union through campaigns

to preserve and protect their natural habitats and environments. (R. at 4). In the instant case, the

interests NUWF seeks to protect are the natural habitats and environments of the wildlife and

8

fish of the state of New Union and the enjoyment of these areas by its members. As such, these

interests satisfy the germaneness test.

c. Neither the claim asserted by NUWF nor the relief requested requires the participation

of any individual members.

NUWF‟s claim against Bowman falls under section 505 of the Clean Water Act and

seeks relief in the form of civil penalties and remedial measures by Bowman to restore the

property to its natural state. (R. at 5). Individual relief is not requested in the form of monetary

payments of damages to individual claimants. This Court therefore need not consider the

individual circumstances of each claimant, but rather address a pure question of law regarding

Bowman‟s violations of the Clean Water Act and their impact on the environment, as articulated

by the Supreme Court in Int’l Union, United Auto., Aerospace and Agric. Implement Workers of

Am. v. Brock, 477 U.S. 274, 287 (1986).

Additionally, under the Third Circuit‟s holding in Pa. Psychiatric Soc’y v. Green Spring

Health Servs., to the extent that any participation of individuals may be required in the form of

discovery or testimony, there will be no need for “specific, factually intensive, individual”

investigations but merely “limited individual participation” to allow NUWF to maintain

associational standing. 280 F.3d 278, 286-287 (3d Cir. 2002) (see Retired Chi. Police Ass’n v.

City of Chi., 7 F.3d 584 (7th Cir. 1993)). Therefore any proof needed from NUWF‟s members

would merely be required to support the associational maintenance of the cause of action and the

third prong is easily satisfied.

2. Actual environmental damage is not required to establish standing, merely

the threat and a showing of injury to the plaintiff.

The Supreme Court has held that the “relevant showing for purposes of Article III

standing … is not injury to the environment, but injury to the plaintiff.” Laidlaw, 528 U.S. at

181. The CWA allows the maintenance of a citizen suits for actions which are purely procedural

9

with no harm to the environment whatsoever. 33 U.S.C. § 1365(f)(6) (2006); 33 U.S.C. § 1318

(2006). Requiring the production of actual scientific evidence of environmental harm to gain

standing confuses jurisdictional determinations with a determination of the merits of a case.

Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1151 (9th Cir. 2000). Indeed, “to

require actual evidence of environmental harm, rather than an increased risk based on a violation

of the statue, misunderstands the nature of environmental harm, and would undermine

enforcement of the Clean Water Act.” Id. (citing Gaston Copper, 204 F.3d at 160).

The district court applied the inappropriate standard of requiring proof of harm to the

environment rather than harm to the plaintiff by considering the opinion of a biologist who

theorized the frogs in the area might actually benefit from Bowman‟s activities. (R. at 6).

Regardless of the impact on the environment, the members of NUWF have shown that the

possibility of environmental harm caused by Bowman‟s actions has had and will have an adverse

impact on their recreational and aesthetic interests. (R. at 6). Bowman‟s violations of sections

301(a) and 404 of the CWA threatens the interests of the members of NUWF, and that is

sufficient to satisfy a standing inquiry. (R. at 3).

B. NUWF satisfies the requirements to bring suit under the standing test from Valley

Forge.

NUWF also satisfies the requirements of the three-prong standing test stated by the

Supreme Court in Valley Forge that litigants must show (1) an injury in fact, (2) that the injury is

fairly traceable to the defendant, and (3) the court has the ability to redress the injury. 454 U.S.

at 472. NUWF‟s members have alleged sufficient facts to show injury in fact to their

recreational and aesthetic interests in the Muddy River and the Bowman property. (R. at 6).

Additionally, the fear generating the injury to the members‟ recreational and aesthetic interests

stems from and is traceable to the actions of Bowman in clearing the wetlands. (R. at 6). The

10

injury is easily redressable by this Court through the granting of the relief requested and

restoration of the property to its natural state. (R. at 5).

1. The injuries contained in the affidavits of the members are sufficient to show

injuries that are not merely speculative.

The injury in fact prong of the Valley Forge test bars suits by persons with only theoretic

injury by requiring an actual or threatened violation of a person‟s interests. Lujan v. Defenders

of Wildlife, 504 U.S. at 560. The Supreme Court denies standing to persons who only raise

injuries than are only “an ingenious academic exercise in the conceivable.” United States v.

Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688 (1973). The

standard is “one of kind and not of degree.” Gaston Copper, 204 F.3d at 156. The alleged injury

does not have to be more than an “identifiable trifle” to show sufficient injury in fact. Pub.

Interests Research Grp. of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir.

1990) (quoting SCRAP, 412 U.S. at 689).

The three members of NUWF testified in depositions to incurring injuries based on the

fact that they had used the Muddy River and the area on and around the Bowman property for

recreational and aesthetic purposes. (R. at 6). That use was adversely affected by Bowman‟s

activities which caused a more polluted appearance in the Muddy River, as well as a disturbance

with regards to wildlife inhabiting the area, such as the frogs hunted by Norton for recreation and

sustenance. (R. at 6). “Aesthetic and environmental well-being” is enough to meet the injury in

fact test as long as “the party seeking review be himself among the injured.” Morton, 405 U.S. at

734-35. Here, NUWF‟s three members allege such an injury of aesthetic and environmental

interests which affect them directly and over which NUWF can bring on their behalf.

The district court incorrectly characterized the alleged injuries as merely speculative,

with the exception of Norton‟s frogging. (R. at 6). The Supreme Court found that the affiants in

11

Lujan v. Defenders of Wildlife did not have standing because the injuries alleged did not show

any imminent threat, but merely represented aspirational hopes. 504 U.S. at 564. Unlike the

affiants in Lujan, the members of NUWF have shown a consistent pattern of use of the Muddy

River and the tracts along its banks on and near the Bowman property as well as the expectation

of future use. (R. at 6). In fact, Norton uses the land to hunt for sustenance purposes, showing

an averment of an intention of continual and future use which is threatened by the changes

wrought by Bowman‟s actions. (R. at 6). The injuries averred by the members of NUWF are

not merely speculative, but actual threats to their recreational and aesthetic well-being. As such,

this Court should find that NUWF has alleged sufficient injury in fact to satisfy the first prong of

the Valley Forge test.

2. While Norton may have illegally hunted in the cleared field, the impact on his

legal hunting activities in the buffer zone gives him a cognizable injury.

Even if this Court finds that the recreational and aesthetic injuries alleged by the

members of NUWF do not rise above speculation and require more proof of direct injury, such

proof can be found in Zeke Norton‟s legal sustenance hunting along the public easement and

buffer area of Bowman‟s property. (R. at 6). Even if some of Norton‟s frog hunting may have

occurred in violation of New Union trespassing laws (and therefore constitute an illegal activity

that cannot give rise to an injury to support a finding of standing), Bowman conveyed a

conservation easement to NUDEP for a 75 foot buffer area along the banks of the Muddy which

included rights of public entry to conduct appropriate recreational purposes, presumably

including legal frog hunting. (R. at 4). Since the clearing of the Bowman field, Norton is unable

to find numbers of frogs even remotely close to the pre-clearing levels. (R. at 6). This reduction

threatens Norton‟s recreational interests, as well as his way of life since his frogging serves a

sustenance function. This interest is verifiable and certainly more than mere speculation.

12

Therefore, this Court should still find sufficient injury in fact to satisfy the first prong of the

Valley Forge test.

3. The injuries in fact are fairly traceable to the clearing of the Bowman property

and redressable by this Court.

The fairly traceable prong of the Valley Forge test requires that there is a “substantial

likelihood” that the injuries alleged by the plaintiff were caused by the defendant‟s conduct.

Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 (1978). In Powell Duffryn,

the Third Circuit established a three-prong test to show such likelihood in the context of a Clear

Water Act case. 913 F.2d at 72. Plaintiffs need to show a defendant “1) discharged some

pollutant in concentrations greater than allowed by its permit 2) into a waterway in which

plaintiffs have an interest that is or may be adversely affected by the pollutant and that 3) this

pollutant causes or contributes to the kinds of injuries alleged.” Id.

Here, Bowman discharged pollutants without a required permit by redepositing dredged

soil. (R. at 8). The Muddy River is a waterway which the members of NUWF have a substantial

interest in that is being adversely affected through Bowman‟s actions. (R. at 6). This pollution

being diverted into the channel of the Muddy certainly contributes to the kinds of injuries alleged

by NUWF‟s members as they testified the river looked more polluted and they felt the impact of

the pollutants on their interests. (R. at 6). Therefore, there has been a showing that the second

prong of the Valley Forge test is satisfied.

As to the third prong, the citizen suit provision of the Clean Water Act clearly states

“[t]he district courts shall have jurisdiction . . . to enforce such an effluent standard or limitation,

or such an order, or to order the Administrator to perform such act or duty, as the case may be,

and to apply any appropriate civil penalties.” 33 U.S.C. § 1365(a)(2). The relief sought by

NUWF is clearly available for the court to grant, as they seek civil penalties and enforcement of

13

standards. (R. at 5). Therefore, the final prong of the Valley Forge test is met and standing is

appropriate for NUWF to bring the suit.

II. THIS COURT HAS SUBJECT MATTER JURISDICTION BECAUSE DREDGE

AND FILL MATERIALS, STILL PRESENT IN THE FORMER WETLAND,

CONSTITUTE A CONTINUING VIOLATION AS REQUIRED BY SECTION

505(a) OF THE CLEAN WATER ACT.

Pursuant to section 505(a) of the Clean Water Act, this Court has subject matter

jurisdiction over NUWF‟s claim against Bowman. 33 U.S.C. § 1365 (2006). Congress enacted

the CWA in 1972 “to restore and maintain the chemical, physical, and biological integrity of the

Nation‟s waters.” 33 U.S.C. § 1251(a) (1987). CWA section 505(a) conveys jurisdiction over

citizen suits. § 1365. Under section 505, a citizen may bring suit “against any person . . . who is

alleged to be in violation of . . . an effluent standard or limitation under this chapter.” § 1365(a)

(emphasis added).

The language “who is alleged to be in violation of” was interpreted by the United States

Supreme Court in Gwaltney of Smithfield v. Chesapeake Bay Foundation as a requirement that

citizen-plaintiffs allege a state of either continuous or intermittent violation. 484 U.S. 49, 53

(1987). Here, the violation is ongoing because the dredge and fill material is still present in the

former wetland. (R. at 7). In granting Bowman‟s motion for summary judgment on this issue,

the district court ignored the weight of authority which holds that section 404 violations are

ongoing until they are remedied. Bowman has allegedly violated section 404, and because

Bowman has not remedied the illegally discharged pollutants, the violations are ongoing.

A. Subject matter jurisdiction over Bowman‟s continuing violation is consistent with the

Supreme Court‟s holding in Gwaltney because NUWF has made a good faith allegation

of a continuous violation.

14

NUWF‟s allegation of an ongoing violation confers subject matter jurisdiction, consistent

with the Supreme Court‟s holding in Gwaltney of Smithfield v. Chesapeake Bay Foundation. See

484 U.S. 49, 65 (1987). Gwaltney held that section 505 does not permit citizen suits for wholly

past violations, but further held that the Court‟s conclusion did not necessarily dispose of the

lawsuit against Gwaltney because section 505 “confers jurisdiction over citizen suits when the

citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation.”

Gwaltney, 484 U.S. at 64.

On remand, the Fourth Circuit held that plaintiff environmental groups could prove an

ongoing violation by two means:

(1) by proving violations that continue on or after the date the complaint is filed,

or (2) by adducing evidence from which a reasonable trier of fact could find a

continuing likelihood of a recurrence in intermittent or sporadic violations.

Chesapeake Bay Found, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir.

1988). The Fourth Circuit instructed that on remand, the district court “may wish to consider

whether remedial actions were taken to cure violations . . . .” Id. at 172. Here, there is an

ongoing violation because the dredge and fill material is still present in the former wetland, and

consequently is an ongoing and continuing violation after the date the complaint was filed.

The Gwaltney Court faced the issue of whether section 505(a) of the CWA conferred

federal jurisdiction over citizen suits for wholly past violations. Id. at 52. Between 1981 and

1984, Gwaltney violated the conditions of a National Pollutant Discharge Elimination System

(NPDES) permit multiple times by exceeding effluent limitations on several of the pollutants.

Id. at 53. During this time, Gwaltney installed new equipment that terminated the occurrence of

the violations. Id. at 53-54. The Court held that the most natural reading of the section 505(a)

language “to be in violation of” is “a requirement that citizen-plaintiffs allege a state of either

15

continuous or intermittent violation-that is, a reasonable likelihood that a past polluter will

continue to pollute in the future.” Id. at 57. As a result of this reading, the Court held that

section 505(a) does not allow citizen suits for “wholly past” violations, but that the bar on wholly

past violations did not lead to the disposal of the citizen-plaintiffs‟ suit since jurisdiction would

exist if the citizen-plaintiff made a good faith allegation of a continuous or intermittent violation.

Id. at 64.

In the case at hand, subject matter jurisdiction lies because NUWF has met the standard

required by Gwaltney for a good faith allegation of a continuous violation. NUWF has made a

good faith allegation of an ongoing violation of the continued presence of dredge and fill

material in the former wetland. (R. at 7). The Gwaltney Court held that the use of the present

tense in section 1365 “strongly suggests . . . the harm sought to be addressed by the citizen suit

lies in the present or the future, not the past.” Gwaltney, 484 U.S. 49 at 59. Here, the harm

sought to be addressed by the citizen suit lies in the present and the future, as demonstrated in

NUWF‟s complaint seeking an order to require Bowman to remove the fill material and restore

the wetlands. (R. at 5).

In his concurrence, Justice Scalia asserted that when an effluent standard or limitation has

been violated, “it remains, for purposes of § 505(a), „in violation‟ of that standard or limitation

so long as it has not put in place remedial measures that clearly eliminate the cause of the

violation.” Id. at 69 (Scalia, J. concurring). The issue to be resolved is whether petitioner was in

fact “in violation” on the day the suit is brought. Id. (Scalia, J. concurring). Justice Scalia read

the phrase “to be in violation,” to “[suggest] a state rather than rather than an act-the opposite of

a state of compliance.” Id. (Scalia, J. concurring). Justice Scalia acknowledged that his standard

would not differ greatly from the majority in its practical application, and would likely produce

16

identical results. Id. at 70 (Scalia, J. concurring). Under Justice Scalia‟s remedial steps

approach, Bowman is certainly still in violation and the continued presence of dredge and fill

material constitutes an ongoing violation.

Therefore, under the standard applied in Gwaltney, the continued presence of the dredge

and fill material in the former wetland constitutes an ongoing violation, sufficient to confer

subject matter jurisdiction under section 505(a) of the CWA. Bowman‟s illegal discharge of the

dredge and fill material has not been corrected and the pollutants remain in the former wetlands

where the negative effects will continue until remedial measures are completed.

B. The continued presence of dredge and fill material constitutes an ongoing violation.

While Gwaltney established that citizen suits are not permitted for violations that are

“wholly past,” it left open the issue of when a violation ceases to be ongoing and thus becomes

“wholly past.” Gwaltney, 484 U.S. at 64. “Some courts have adopted an expansive interpretation

and held that an ongoing violation exists until the risk of continued violation has been

completely eradicated. . . . Other courts . . . have held both pre- and post-Gwaltney that

„continuing residual effects resulting from a discharge are not equivalent to a continuing

discharge.‟” Wilson v. Amoco Corp., 33 F. Supp. 2d 969, 975 (D. Wyo. 1998) (internal citations

omitted).

Each day discharged pollutants remain in wetlands without a permit is an added day of

violation. Sasser v. Adm’r, U.S. E.P.A., 990 F.2d 127, 129 (4th Cir. 1993).1 In Sasser, the

1 See also United States v. Ciampitti, 669 F.Supp. 684, 700 (D.N.J. 1987) (holding “[a] day of

violation constitutes every day that a violator allows illegal fill material to remain in federally

regulated wetlands”); United States v. Cumberland Farms of Conn., Inc., 647 F.Supp. 1166,

1183 (D. Mass. 1986) (holding “A day of violation constitutes . . . every day [Defendant]

allowed illegal fill material to remain in the wetland area”) aff'd, 826 F.2d 1151 (1st Cir. 1987);

United States v. Reaves, 923 F. Supp. 1530, 1534 (M.D. Fla. 1996) (holding that “Defendant's

unpermitted discharge of dredged or fill materials into wetlands on the site is a continuing

17

defendant had constructed a new embankment inside of an old, deteriorated embankment, the

defendant filled in the old embankment, installed a water gate, and discharged dredged or fill

material into the wetlands. Id. at 128. The defendant declined to restore the property to its

previous state as wetlands and the court held that the violation was continuing. Id. at 12-29.

Similarly, Bowman‟s illegal discharge of dredge and fill material into the former wetlands along

with his failure to undo the pollution and damage constitutes an ongoing violation.

1. The ongoing violation approach to illegally discharged dredge and fill material in

wetlands is consistent with the continuing violation jurisdictional requirement of

the CWA.

The continued presence of dredge and fill material in this case has persistent effects that

are amenable to correction. See N. C. Wildlife Fed’n v. Woodbury, No. 87-584, 1989 WL

106517, at *3 (E.D.N.C. Apr. 25, 1989). Consequently, this continued presence constitutes an

ongoing violation under Gwaltney. N. C. Wildlife Fed’n v. Woodbury, 1989 WL 106517, at *3.

In North Carolina Wildlife Federation v. Woodbury, the court held that the presence of

dredged and fill material can be characterized as a continuing violation because it is a violation

that can be corrected, whereas violations not susceptible to remedial efforts as a result of natural

dissipation or dispersion would be barred under Gwaltney. Id. at *3. The court further held that

public policy supported the treatment of private defendants‟ acts as a continuing violation. Id.

The Woodbury court held that it would lead to serious problems in the enforcement of the CWA

both privately and publicly, “[i]f citizen-suits were barred merely because any illegal ditching

and drainage of a wetland tract was completed before it might reasonably be discovered,

violators would have a powerful incentive to conceal their activities from public and private

violation for as long as the fill remains”); Informed Citizens United, Inc. v. USX Corp., 36 F.

Supp. 2d 375, 377-78 (S.D. Tex. 1999) (noting that most courts addressing filled wetlands have

found “a violation is „continuing‟ for purposes of the statute until illegally dumped fill material

has been removed”).

18

scrutiny . . . .” Id. See also Greenfield Mills, Inc. v. Goss, 1:00 CV 0219, 2005 WL 1563433 at

*5 (N.D. Ind. 2005). As in Goss and Woodbury, the continued presence of the dredge and fill

material is the harm.

Like the holding of Woodbury, a district court in Georgia held “that the continuing

presence of illegally discharged fill material can constitute an „ongoing violation‟ under

Gwaltney.” City of Mt. Park, GA v. Lakeside at Ansley, LLC, 560 F. Supp. 2d 1288, 1297 (N.D.

Ga. 2008). Parallel to the case at hand, in Lakeside, the conduct that gave rise to the violation

had ceased, but the effects continued. Id. In Lakeside, the defendants allegedly caused silt and

sediment-laden water to be discharged into two lakes and surrounding wetlands in violation of

section 404 of the CWA. Id. at 1290. Similar to the present case, the defendants in Lakeside

argued that the alleged violations occurred prior to the filing of the complaint, and were therefore

barred under Gwaltney. Id. The Lakeside court held in agreement with the Woodbury line of

decisions, “that violations of the CWA are ongoing for as long as pollutants remain in the

wetlands.” Id. at 1296. The court reasoned:

[I]t was most likely the intent of the drafters of the Act to enable citizen suits

against polluters in situations such as this one. Indeed, to not do so would have

the effect of incentivizing polluters to simply conceal their misdeeds, knowing

that they will not face CWA liability unless they are essentially caught in the act

of polluting. Justice Scalia‟s concurring language in Gwaltney-that a polluter

remains „in violation‟ of the CWA „so long as it has not put in place remedial

measures that clearly eliminate the cause of the violation‟-seems to confirm this

interpretation.

Id. at 1296 (quoting Gwaltney, 484 U.S. at 69 (Scalia, J. concurring)). This public policy

concern is a critical aspect cases addressing illegally discharged dredged and fill materials into

wetlands.

19

Significantly, the Lakeside court noted that the primary factor which influenced the court

to adopt the Woodbury approach was nature of the alleged pollution in the case, deposited

sediment and- the same nature of pollution in the case at hand- fill material. Id. at 1296. The

court noted that unlike the alleged pollution in cases that did not find ongoing violations,2 fill

materials do not significantly dissipate or dissolve over time. Id. The fill materials at issue in

Lakeside would instead stay intact over time and continue to have “roughly the same net

polluting effect years or even decades after the time of their deposit. . . . The majority of cases

dealing with fill materials appear to adopt the approach taken in Woodbury deeming the pollution

„ongoing‟ as long as the polluting fill material remains in the water.” Id.3 Conversely, the court

noted that cases adopting the stricter “wholly past” interpretations have involved pollutants other

than fill materials. Id. 1296-97.4

2. This Court should hold that the continued presence of dredge and fill material

constitutes an ongoing violation because such an approach is consistent with the

application of the statute of limitations.

The ongoing violation approach is consistent with the statute of limitations. The five-

year statute of limitations set forth in 28 U.S.C. § 2462 applies to citizen suits under the CWA.

See Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517 (9th Cir.1987); Stillwater of Crown Point

Homeowner's Ass'n, Inc. v. Kovich, 820 F. Supp. 2d 859, 896 (N.D. Ind. 2011). The statute of

2 See Aiello v. Town of Brookhaven, 136 F. Supp. 2d 81, 210 (E.D.N.Y. 2001) (discharge of

leachate plume); Wilson, 33 F.Supp. 2d 969, 975-76 (petroleum products). 3(Citing Sasser, 990 F.2d at 129; Informed Citizens United, 36 F. Supp. 2d at 377-78; Reaves,

923 F. Supp. 1530 at 1534. See also e.g., Atl. States Legal Found., Inc. v. Hamelin, 182 F. Supp.

2d 235, *248 (N.D.N.Y., 2001) (holding that continued presence of fill material in wetlands

constituted a continuing violation)). 4 (Citing see, e.g., U.S. Pub. Interest Research Grp. v. Stolt Sea Farm, Inc., Civil No. 00-149-B-

C, 2002 WL 240386, at *6, 2002 U.S. Dist. LEXIS 2757, at *19 (D.Me. Feb. 19, 2002) (blood

water); Friends of Santa Fe Cnty. v. LAC Minerals, 892 F.Supp. 1333, 1354 (D.N.M.1995) (acid

mine discharges); Brewer v. Ravan, 680 F.Supp. 1176, 1182 (M.D.Tenn.1988) (polychlorinated

biphenyls (PCB) effluents); but see, Conn. Coastal Fishermen's Ass'n v. Remington Arms Co.,

Inc., 989 F.2d 1305, 1311-13 (2d Cir. 1993)).

20

limitations is not obviated by the ongoing limitations approach to continuous violations since not

all CWA violations are ongoing.

In cases involving ongoing violations, the statute of limitations does not begin to run until

the dredge and fill material is removed. See United States v. Reaves, 923 F. Supp. 1530, 1534

(M.D. Fla. 1996) (holding that the unpermitted discharge of dredged or fill material was a

continuing violation for as long as the fill remained. Consequently, the five-year statute of

limitations had not begun to run); see also Kovich, 820 F.Supp. 2d at 896 (holding that the fill

that allegedly violated the section 404 permit remained in place and, therefore, the statute of

limitations had not yet begun to run). As demonstrated above, the presence of the fill material is

the violation. Sasser, 990 F.2d at 129. Consequently, the statute of limitations for a section 404

permit violation does not begin to run until the dredged and fill material is removed. See Reaves,

923 F. Supp. at 1534. Nevertheless, the application of the statute of limitations is not an issue

bearing on this case. Accordingly, the Court of Appeals erred in granting Defendant‟s motion

for summary judgment on the issue.

III. NUWF’S SUIT IS NOT BARRED BY SECTION 505(b) OF THE CWA

BECAUSE NUDEP’S EFFORTS DO NOT QUALIFY AS DILIGENT

PROSECUTION AND THE STATUTORY REQUIREMENTS OF THE

CWA ARE NOT JURISDICTIONAL.

The district court incorrectly granted Bowman‟s motion for summary judgment on the

grounds of diligent prosecution in which Bowman claimed the district court lacked jurisdiction

because of the State‟s enforcement actions. (R. at 5). The district court erred in construing the

actions of NUDEP as meeting the requirements of diligent prosecution. Additionally, the

statutory requirements of the Clean Water Act are not jurisdictional and therefore the district

court retained subject matter jurisdiction over the claim.

21

A. This Court should find that NUDEP‟s actions do not qualify as diligent prosecution.

Citizen‟s suits are precluded if the “State has commenced and is diligently prosecuting a

civil or criminal action in a court of the United States, or a State to require compliance with the

standard, limitation, or order.” 33 U.S.C. § 1365(b)(1)(B) (2006). It is undisputed that NUWF

did not file its complaint until August 30, 2011, sixty days after it filed notice of the intent to sue

as required by statute. (R. at 5); 33 U.S.C. § 1365(b)(1)(A) (2006). In the interim, NUDEP filed

suit against Bowman on August 10, 2011. (R. at 5). Thus, a suit was clearly commenced prior

to the filing of NUWF‟s complaint in partial satisfaction of the preclusion clause. However,

NUDEP‟s actions do not meet the requirements of diligent prosecution and thus do not bar

NUWF‟s suit.

The burden of proving non-diligence is a substantial one, requiring that “[c]itizen-

plaintiffs must meet a high standard to demonstrate that [an enforcement agency] has failed to

prosecute a violation diligently.” Karr v. Hefner, 475 F.3d 1192, 1198 (10th Cir. 2007).

Plaintiffs must show more than just that the governmental stratagem does not rise to the level of

aggressiveness a plaintiff would prefer, because government actions are given a presumption of

diligence so long as they are “capable of requiring compliance with the Act and is in good faith

calculated to do so.” Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co., 808 F.Supp. 2d 868, 884

(S.D.W.Va. 2011) (quoting Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist.,

382 F.3d 743, 760 (7th Cir. 2004)). However, a “diligent prosecution analysis requires more

than mere acceptance at face value of the potentially self-serving statements of a state agency

and the violator.” Friends of Milwaukee’s Rivers, 382 F.3d at 760. Should a court find that the

governmental action fails in these regards, “it should not hesitate to allow a citizen suit to

22

proceed.” Ohio Valley Envtl. Coal., Inc. v. Hobet Mining, LLC, 2008 WL 5377799, (S.D.W.Va.

2008).

In the instant case, the district court inappropriately accepted at face value NUDEP‟s

filing of a complaint and negotiation of a settlement within two months of NUWF‟s notice letter

constituted a diligent prosecution. (R. at 7). The settlement agreed to by NUDEP and Bowman

requires Bowman to cease further section 404 violations and grant a conservation easement for a

portion of his land which will be maintained in a natural state and open to the public for

recreational use. (R. at 7). These types of agreements are authorized under New Union statutes

that mirror the CWA. (R. at 4).

However, the NUDEP agreement with Bowman fails to address the clearing and draining

of the majority of his property, which resulted in the conditions which affected the recreational

and aesthetic interests of the NUWF members. (R. at 4). NUDEP‟s original notification to

Bowman informed him that the clearing of the field was in direct violation of both state and

federal law. (R. at 4). However, none of the measures enacted in the NUDEP agreement

requires Bowman to restore the field and comply with the laws he violated through his clearing

and draining actions. As stated, enforcement of the CWA is “considered diligent where it is

capable of requiring compliance with the Act and is in good faith calculated to do so.” Piney

Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 523 F.3d 453 (4th Cir. 2008). Here,

NUDEP‟s actions completely miss the mark in requiring Bowman‟s compliance with the Clean

Water Act and achieve the primary goal of the Act “to restore and maintain the chemical,

physical, and biological integrity of the Nation‟s waters.” 33 U.S.C. § 1251(a) (emphasis

added).

23

NUDEP makes no attempt to bring Bowman into compliance with the state and federal

laws they allege Bowman violated or to address the violations complained about by NUWF

regarding the cleared field, instead focusing on preserving a small strip of land and sacrificing

the vast majority of the wetlands area, allowing Bowman to continue develop them with winter

wheat planting. (R. at 4-5). This planting shows the failure of NUDEP‟s actions to restrain

Bowman‟s violation of the CWA and that the agreement entered into is not capable of requiring

Bowman‟s compliance and is not in good faith designed to do so since it specifically does

nothing to deal with the cleared field.

B. The statutory notice provisions of the CWA are not jurisdictional and thus the district

court erred in holding it lacked subject matter jurisdiction due to prior action.

The district court also incorrectly found that NUDEP‟s filing of suit prior to the

expiration of NUWF‟s sixty-day notice period divested that court of subject matter jurisdiction

due to prior state action. (R. at 11). Plaintiffs are required to give sixty days notice prior to

filing a citizen suit under the CWA. 33 U.S.C. § 1365(b)(1)(A). Because the notice requirement

is not a jurisdictional bar, the district court did indeed retain subject matter jurisdiction over the

claim and should have allowed the development of a record to determine whether NUDEP‟s

filing barred NUWF‟s suit through diligent prosecution.

The Supreme Court has stated a “statutory condition that requires a party to take some

action before filing a lawsuit is not automatically „a jurisdictional prerequisite to suit.” Reed

Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1246 (2010) (citing Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982) (emphasis in original). Courts must rather inquire about the

“legal character” of the requirement which is “discerned by looking to the condition‟s text,

context, and relevant historical treatment.” Reed Elsevier, 130 S. Ct. at 1246, (citing Zipes, 445

U.S. at 393, 395). The Supreme Court has further stated that “[i]f the Legislature clearly states

24

that a threshold limitation on a statute‟s scope shall count as jurisdictional,” then courts will

consider the issue settled, but “when Congress does not rank a statutory limitation on coverage as

jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Arbaugh v.

Y&H Corp., 546 U.S. 500, 515-516 (2006).

The Fifth Circuit conducted an analysis of the CWA diligent prosecution provision in La.

Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737 (2012). The plain language of the

preclusion provision of the CWA provides no “clear indication that Congress intended the

provision to be jurisdictional.” Id. at 748. The Fifth Circuit noted that Congress placed the

diligent prosecution provision in the notice section of the statute alongside the sixty day notice

requirement, indicating that Congress intended it as a claim-processing rule rather than a

jurisdictional bar. Id. (citing Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1205

(2011). Notably, the CWA‟s jurisdictional provision, 33 U.S.C. § 1365(a), makes no mention of

diligent prosecution being tied to jurisdiction, leading the Fifth Circuit to find that Congress did

not intend the provision to be jurisdictional. Id. at 748-749. Further evidence of the

nonjurisdictional nature of the requirement was found in the lack of historical cases holding the

CWA or any other environmental statutes with similar provisions to be jurisdictional. Id. at 749.

The Seventh Circuit also found a virtually identical provision in the Resource Conservation and

Recovery Act (RCRA) to be nonjurisdictional, stating that the limit on citizen suits was not a

solid ban, but could change depending on the character of the government action, but,

[s]ubject matter jurisdiction, on the other hand, is usually thought of in binary

terms. It either exists or it does not. It might disappear because of a change of

circumstances, but it's hard to fit into the concept of subject matter jurisdiction the

idea that the ability to pursue the citizen suit could disappear, return, and

disappear again, depending on the government agency's changing approach to its

own enforcement action.

Adkins v. VIM Recycling, Inc., 644 F.3d 483, 492 (7th Cir. 2011).

25

This Honorable Court should follow the Fifth and Seventh Circuits‟ logic and find that

the CWA provision does not apply to subject matter jurisdiction due to its text, context,

placement, and historical interpretation. Because of the nonjurisdictional nature of the CWA

provision, this Court should find that the district court wrongly decided that they lacked subject

matter jurisdiction over the claims and erred in granting Bowman‟s motion for summary

judgment due to prior state action.

IV. BOWMAN’S ACTIVITIES SATISFY THE “ADDITION” ELEMENT FOR

DISCHARGE OF A POLLUTANT INTO NAVIGABLE WATERS FROM A

POINT SOURCE, THEREFORE BOWMAN VIOLATED THE CLEAN WATER

ACT BY NOT OBTAINING A SECTION 404 PERMIT.

Congress enacted the Clean Water Act as a comprehensive statutory scheme to control

and eliminate pollution of the nation‟s navigable waters. Nat’l Wildlife Fed’n v. Gorsuch, 693

F.2d 156, 176 (D.C. Cir. 1982). Rather than regulate water quality standards, the CWA uses

technology based effluent limits as “the basis of pollution prevention and elimination” because

they are “the best available mechanism to control water pollution.” Id. (quoting S.Rep. at 8,

1972 Leg.Hist. 1426, 1972 U.S. Cong. & Ad.News at 3675).

Towards this end, the CWA prohibits the “discharge” of “pollutants” into the “navigable

waters” of the United States. 33 U.S.C. § 1251 (1987). “Discharge” is defined as “any addition

of any pollutant to navigable waters from any point source…” 33 U.S.C. § 1362(12). In order to

engage in this activity, a National Pollutant Discharge Elimination System permit must be

obtained from the Environmental Protection Agency (EPA) under section 402 of the CWA,

unless the activity is the discharge of dredged or fill material, in which case the Army Corps of

26

Engineers (COE) has exclusive permitting jurisdiction under section 404. 33 U.S.C. § 1342

(2006).5

Here, Bowman‟s activities (including leveling vegetation into windrows and burning

them, relocating dredged soil and forming a drainage ditch through a wetland) constituted the

discharge of dredged and fill material and therefore required a section 404 permit, which

Bowman failed to obtain. (R. at 6). None of the parties dispute that his land is wetlands (and

therefore “navigable waters”), that the bulldozer was a “point source,” or that the dredged and

fill material was a “pollutant.” (R. at 8-9). However, the district court incorrectly held that

Bowman‟s activities did not result in the “addition” of a pollutant.

Congress did not define “addition” in the Clean Water Act, and the EPA and the COE

have not defined “addition” in a regulation. The Circuits, however, have consistently held that

the redeposit of dredged material into the same wetland constitutes “addition.” United States v.

Deaton, 209 F.3d 331, 336-37 (4th Cir. 2000). This position is consistent with the intent of

Congress to protect the wetlands from destruction, and should not be affected by the EPA‟s use

of an “outside world” definition of “addition” only in the context of section 402 permits.

Moreover, the codification of the EPA‟s “unitary navigable waters” theory did not constitute a

codification of the EPA‟s definition of “addition” and is therefore not entitled to Chevron

Deference.

A. Bowman‟s activities constituted “addition” because he transformed a material from

a non-pollutant into a pollutant.

The Fourth, Fifth, Seventh, Ninth and D.C. Circuits have all held that redepositing

dredged material back into navigable waters constitutes “addition” and therefore a “discharge” of

5 For relevant agency regulations and definitions regarding these two programs, refer to: 40

C.F.R. § 232.2 (2008); 33 C.F.R. § 323.2 (2009); 40 C.F.R. § 230 (2008).

27

a pollutant requiring a section 404 permit.6 The Fourth Circuit, in Deaton (holding that the

“CWA‟s definition of discharge as „any addition of any pollutant to navigable waters‟

encompasses sidecasting soil when digging a ditch in a wetland”), stated that:

“the [Clean Water Act] does not prohibit the addition of material; it prohibits „the

addition of any pollutant.‟ The idea that there could be an addition of a pollutant

without an addition of material seems to us entirely unremarkable, at least when

an activity transforms some material from a nonpollutant into a pollutant…”

Deaton, 209 F.3d at 336-37.

When declining to follow this persuasive precedent that re-depositing dredged soil back

into the same wetland constitutes addition, the district court blatantly dismissed the well-

established evidence of the damage that occurs to wetlands when soil is dredged and replaced

back into the same wetland. (See R. at 10). Consider the following description provided by the

Fourth Circuit of how the nation‟s wetlands and navigable waters are damaged by the redeposit

of dredged soil:

Wetlands perform a vital role in maintaining water quality by trapping sediment

and toxic and non-toxic pollutants before they reach streams, rivers, or other open

bodies of water…When a wetland is dredged, however, and the dredged spoil is

redeposited in the water or wetland, pollutants that had been trapped may be

suddenly released...At the same time, the increased drainage brought about by the

dredging may render the surrounding wetland unable to reabsorb and filer those

pollutants and sediments. (the very purpose of dredging is to destroy wetland

characteristics). See 40 C.F.R. Section 230.41(b).

Deaton, 209 F.3d at 336.

Deaton is merely one of the latest in a series of Circuit cases that encompass land-

clearing activities within the definition of “addition” and the 404 permitting program, starting

with the Fifth Circuit case Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.

6 See also the following district court cases: United States v. Sinclair Oil Co., 767 F.Supp. 200

(D.M.T. 1990); United States v. Bay-Houston Towing Co., Inc., 33 F.Supp.2d 596 (E.D.M.I.

1999).

28

1983). In Avoyelles, the Court stated that “[t]he word „addition,‟ as used in the definition of the

term „discharge,‟ may reasonably be understood to include „redeposit.‟” Id. at 921. The

activities on the wetlands in that case included that trees and other vegetation were sheared and

windrowed, that the land was chunk raked and disced, and that a drainage ditch was dug. Id.

The Eleventh Circuit, in United States v. M.C.C. of Florida, Inc., 772 F.2d 1501 (11th

Cir. 1985), held that redepositing spoil dredged up by a tugboat‟s propellers onto adjacent sea

grass beds constituted “addition.” Id. at 1506. The Seventh Circuit, in United States v. Huebner,

752 F.2d 1235 (7th Cir. 1985), held that a 404 permit was required where dredged material had

been placed on the sides of a wetland creek and was sliding into the adjacent wetlands, that a part

of the wetland had been plowed and furrowed, and that dikes had been leveled and scraped by a

bulldozer. Id. at 1238.

The D.C. Circuit excluded incidental “fallback” that occurs when removing dredged

material from navigable waters from “addition” in National Min. Ass’n v. U.S. Army Corps of

Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998), but did not by that holding exclude the COE from

having authority over the redeposit of dredged material. Id. at 34-335. And finally the Ninth

Circuit, in Rybachek v. U.S. E.P.A., 904 F.2d 1276 (9th Cir. 1990), held that excavating material

from a streambed and then placing it back into the stream constitutes “addition.” Id. at 1285.

Here, Bowman‟s activities are either identical or parallel to the activities in the cases

discussed above. Like in Deaton and Avoyelles, he cleared the wetland of trees and vegetation,

created windrows, and made a drainage ditch. His activities did not create mere incidental

fallback of material (like the facts of National Mining Association), but rather constituted the

creation and introduction of pollutants into the wetland that were not there before by redepositing

29

newly dredged soil.7 Under the express standards of five Circuits and numerous district courts,

Bowman‟s activities clearly satisfy the standard for “addition” of a pollutant.

B. The “outside world” definition of “addition” used by the EPA for section 402 permits

does not apply to section 404 permits because that usage would frustrate the intent of

Congress by reading section 404 out of the Clean Water Act.

The EPA, in litigating section 402 National Pollutant Discharge Elimination System

permitting cases, has defined “addition” as requiring introduction of the pollutant from the

“outside world,” that is, “addition from a point source occurs only if the point source itself

physically introduces a pollutant into the water from the outside world.” Nat’l Wildlife Fed’n v.

Gorsuch, 693 F.2d 156, 175 (D.C. Cir. 1982).

While “[t]he normal rule of statutory construction assumes that „identical words used in

different parts of the same act are intended to have the same meaning,‟” this presumption is

weaker when the statute does not include an explicit definition of the term. Sorenson v. Sec’y of

Treasury of U.S., 475 U.S. 851, 860 (1986). Moreover, an agency‟s use of a definition is not

entitled to deference when it clearly goes against the intent of Congress. Gorsuch, 693 F.2d at

171.

In fact, the Gorsuch decision (upholding as reasonable the EPA‟s use of the “outside

world” definition of “addition” for 402 permits) qualifies its holding by saying that it finds the

EPA‟s interpretation of the scope of 402 reasonable “as far as dam-caused pollution is

concerned.” Id. at 177. The decision goes on to distinguish the nature and relevance of

congressional intent towards the 402 versus 404 programs by saying “[t]hat Congress created a

special section to deal with dredge and fill problems caused by dams as well as many other

7 While the district court was correct to point out that the CWA “does not distinguish between

living and dead „biological materials,” this point is irrelevant given that dredged and fill material

are defined as pollutants and were introduced into this wetland where they did not exist before.

Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988); (R. at 10).

30

construction activities tells us little about what it would have done about the dam-caused

problems at issue here, had it focused on them.” Gorsuch, 693 F.2d at 177.

Applying the “outside world” definition of “addition” to situations traditionally requiring

a 404 permit (such as sidecasting as in Deaton and Avoyellas) would eliminate the need for 404

permits in most if not all of the situations discussed in the Circuit cases above and would

therefore frustrate the Congressional intent behind enacting the permitting system. Inland

wetlands make up eighty-five percent of the nation‟s wetlands. Huebner, 752 F.2d at 1241. The

Legislative History reflects:

There is no question that the systematic destruction of the Nation‟s wetlands is

causing serious, permanent ecological damage…The unregulated destruction of

these areas is a matter which needs to be corrected and which implementation of

section 404 has attempted to achieve.” 1 Legislative History, at 867 (remarks of

Sen. Muskie during Senate debate on S. 1952, Aug. 4, 1977).

Avoyelles, 715, F.2d at 915.

Sections 404 and 402 serve distinct functions in serving the broad objective of the CWA

to “restore and maintain the chemical, physical and biological integrity of the Nation‟s waters.”

CWA § 101(a); 33 U.S.C. § 1251 (1987). The concerns of the NPDES (402 permits) are that of

technology-based effluent limitation standards for the discharge of pollutants into water, whereas

the 404 permitting program was created as a mutually exclusive narrow exception to 402 to deal

with the distinct concerns of the discharge of dredged and fill material. 33 U.S.C. § 1342 (2006).

As the D.C. Circuit explained in Gorsuch, NPDES permits potentially cover the broadest

possible range of discharge of pollutants into waters. Gorsuch, 693 F.2d at 176. By contrast, as

shown in the Circuit cases above, 404 permits inherently cover a more narrow set of

circumstances and are frequently required in situations where a single landowner is conducting

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activities entirely within one inland wetland; to drastically narrow the program any further would

defeat the purpose of creating the exception to 402 in the first place.

Consider as well how the application of the “outside world” definition would render

meaningless the exceptions to the requirement for a 404 permit (like the agricultural exception

found in 33 U.S.C. § 1344(f)). Congress‟s intent in creating these exceptions to the COE‟s

authority would be rendered absurd if it turns out that because of the “outside world” definition

of “addition,” the COE has no authority in the first place over redeposited dredged material

within the same wetland.

Applying the “outside world” definition of “addition” to section 404 would not only

conflict with congressional intent, it would be inconsistent with the EPA‟s treatment of 404 and

with the regulations in place that treat activities such as sidecasting as “always [having] been

regulated under Section 404.” See 58 Fed.Reg. 45,008, 45,013/3 (Aug. 25, 1993). While the

EPA does not have the authority to issue 404 permits, it does have the authority to veto any

individual 404 permits. 33 U.S.C. § 1344(c) (2006). The EPA has not vetoed 404 permits as a

means of indicating its intention to apply the “outside world” definition of “addition” to 404.

The EPA has, in effect, used the “outside world” definition of “addition” as applicable

only to 402 and not 404. The Circuits have also consistently ruled under a tacit assumption that

the “outside world” definition of “addition” does not apply to 404 permits. These positions are

consistent with congressional intent and should be upheld in this Circuit.

C. The EPA did not include a definition of “addition” in a regulation when the “Water

Transfer Rule” was codified, therefore that EPA interpretation of “addition” is not

codified or entitled to Chevron Deference.

The District Court erroneously concluded that the EPA‟s interpretation of “addition” as

incorporating the “unitary navigable waters” theory was codified in the Water Transfer Rule, 73

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Fed. Reg. 33,697 (codified at 40 C.F.R. pt. 122). Under the “unitary navigable waters” theory,

all navigable waters are one large navigable water for the purpose of 301(a) of the CWA.

Friends of the Everglades v. South Fla. Water Mgmt. Dist., 570 F.3d 1210 (11th Cir. 2009).

Because the word “addition” was not used or defined in this rule, it was not an interpretation of

the CWA made in a formal administrative proceeding and therefore is not entitled to deference

as an agency decision. See United States v. Mead Corp., 533 U.S. 218 (2000). The

circumstance that the EPA‟s interpretation of “addition” was present in the preamble to the

proposed and final rule and was subject to the public comment that was part of the rulemaking is

insufficient and irrelevant.

Moreover, even if viewed as codified for the purpose of applying to 402, the EPA

interpretation of “addition” in the context of the “unitary navigable waters” theory does not apply

to 404 permits for the exact same reasons discussed above why the “outside world” definition of

“addition” does not apply to 404 permits. In fact, the EPA expressly intended that the unitary

navigable waters theory have “no effect on the 404 permit program.” (R. at 10). The EPA‟s

application should therefore be granted deference under the APA because this approach is in no

way arbitrary, capricious, an abuse of discretion, or not in accordance with law. 5 U.S.C. §

706(2)(A) (1966).

If the “outside world” definition of “addition” would drastically narrow the 404 program,

the “unitary waters” approach would for certain read it out of the statute, as it would eliminate

situations where a pollutant is created by removing material from one navigable water and

transferred and discharged a great distance to another pristine navigable water. That scenario

would violate the congressional intent behind 404 that the district court reference as “to provide

a permitting scheme for disposal of dredged spoil from dredging harbors and navigation channels

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at a considerable distance from their point or origin.” (R. at 9); United States. v. Bay-Houston

Towing Co., Inc., 33 F. Supp. 2d 596, 604 (E.D. Mich. 1999).

The Eleventh Circuit‟s grant of Chevron Deference to the EPA‟s use of the “unitary

navigable waters” theory as applies to 402 permits only applies and only makes sense in the

context of the NPDES program and not in the context of the 404 exception for the discharge of

dredged and fill material. Remember, as discussed above, that the Eleventh Circuit is one of the

many Circuits that have held the redeposit of dredged material into navigable waters as requiring

a 404 permit. See United States v. M.C.C. of Florida, Inc., 772 F.2d 1501 (11th Cir. 1985)

(holding that redepositing spoil dredged up by a tugboat‟s propellers onto adjacent sea grass beds

constituted “addition.”). Id. at 1506. These two Eleventh Circuit cases are not in conflict with

each other because one specifically addresses activities under the purview of 402 and the other

activities under the purview of 404. Moreover, the Supreme Court itself has expressed

uncertainty about whether the “unitary waters” theory is congruent with the congressional intent

behind the CWA, saying that “several NPDES provisions might be read to suggest a view

contrary to the unitary waters approach.” South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of

Indians, 541 U.S. 95, 107 (2004).

For all of these reasons, the district court erred in granting summary judgment to the

defendant on the ground that he did not violate the CWA because his actions did not constitute

“addition” of a pollutant. Addition occurs when a material that is not a pollutant is transformed

into a pollutant. Here, Bowman added the pollutant of dredged and fill material to wetlands by

clearing his land and dredging the soil, therefore his actions required a 404 permit.

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CONCLUSION

This Court should reverse the district court‟s grant of summary judgment to the defendant

and should grant summary judgment on all counts to the New Union Wildlife Federation.

NUWF has standing to sue as the representative of individual members who have demonstrated

an injury in fact fairly traceable to the actions of the defendant. Moreover, this Court has subject

matter jurisdiction over this suit both because the violation is continuing and because NUDEP

did not diligently prosecute the defendant. The defendant is in violation of the Clean Water Act

for failing to obtain a permit for the discharge of dredged and fill material and should be required

to restore the wetlands to their original state.

Respectfully Submitted,

______________________________

Counsel for the New Union Wildlife Federation