Summary of a Recent
Judicial Development in
Environmental Law

Active Moving of Land is Sufficient to Trigger Liability
under the Clean Water Act

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In North Carolina Shellfish Growers Association v. Holly Ridge Association, L.L.C, 278 F. Supp. 2d 654 (E.D.N.C. 2003), the United States District Court for the Eastern District of North Carolina granted in part and denied in part various motions proffered by shellfish growers and coastal landowners. Growers brought the instant Clean Water Act (CWA) citizen suit alleging that landowners were contaminating shellfish beds and local waters through landowners' discharge of stormwater, sediment, and fecal coliform without obtaining a permit. The court granted the plaintiffs' partial motion for summary judgment regarding the defendants' violation of CWA §404; however, material issues of fact remained precluding summary judgment as to the applicability of the CWA silvacultural exemption.

Background

The defendant landowners owned land bordering Stump Sound and the Atlantic Intercoastal Waterway. Id. at 659. The plaintiffs, shellfish growers and environmentalists, claimed that the landowners violated the CWA through ditching and excavating activities conducted on the landowners' land between January and November 1998. Id. Specifically, the plaintiffs alleged the defendants' activities were conducted on wetlands and "resulted in the discharge of sediment and other pollutants into surrounding waters." Id. It was undisputed that before conducting their activities, the defendants failed to obtain a pollution discharge permit. Id. On February 12, 2002, the plaintiffs brought the instant action against the defendants for allegedly violating the CWA. Id.

Arguments

The plaintiffs argued that the defendants' ditching and excavating activities near the Atlantic Intercoastal Waterway constituted a discharge of pollutants into waters of the United States in violation of the CWA.

In response, the defendants claimed their activities did not constitute a violation of the CWA, denied that their actions fell within the jurisdiction of the CWA, and asserted that the plaintiffs lacked standing. Id. at 660.

Analysis and Holdings

The court first addressed the defendants' argument that the plaintiff organizations did not have standing to bring the instant lawsuit. Id. at 662. The plaintiffs claimed they had representational standing. Id. To have representational standing, the representing party must show that: "(1) at least one of its members would have standing to sue in his or her own right; (2) the organization seeks to protect interests germane to the organization's purpose; and (3) neither the claim asserted nor the relief sought requires the participation of individual members." Id. The defendants only alleged that the plaintiffs failed to satisfy the first prong of the three-part analysis because none of the organizations' members had standing to sue individually. Id. To have individual standing, a party must show: "'(1) it has suffered an [injury] that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'" Id. The defendants alleged that the plaintiffs' members failed to satisfy any of the three requirements. Id. Because the plaintiffs' members used the waters at issue for "boating, fishing, shellfishing, wading, and viewing wildlife" and claimed the defendants' activities "adversely affected" the waters, reducing their members' enjoyment of the waters, the court held that the plaintiffs' members had suffered an "injury in fact." Id. at 664. Additionally, the plaintiffs' satisfied the traceability element by showing that the defendants' ditching activities "coincide[d] with increased fecal coliform counts." Id. at 665. Finally, the court held that the plaintiffs' alleged injuries were redressable by a favorable decision. Id. For these reasons, the court held that the plaintiffs' members had standing, and therefore, the plaintiff organizations had representational standing. Id. at 666.

Next, the court addressed the plaintiffs' argument that the defendants' offer of judgment, pursuant to Rule 68 of the Federal Rules of Civil Procedure, was null and void. Id. The plaintiffs claimed that the application of Rule 68 to citizen suits brought under the CWA would have a "chilling effect upon the willingness of plaintiffs to maintain such actions and would therefore frustrate the purposes of Congress in enacting the CWA." Id. Agreeing with the plaintiffs, the court held, "[t]he application of Rule 68 to CWA citizen suits creates enormous disincentives and discourages citizens plaintiffs from vigorously prosecuting claims under the CWA" and "frustrates the express intention of Congress." Id. at 668. For these reasons, the court declared that the defendants' offer of judgment was null and void. Id.

The court then addressed the plaintiffs' motion for partial summary judgment regarding the defendants' liability for violations of the CWA. Id. To succeed on their motion, the plaintiffs needed to show the following:

(1) that the various waters at issue in this litigation [were] 'waters of the United States' and [were] therefore subject to the jurisdiction of the CWA; (2) that Defendants have discharged pollutants . . . into covered waters; (3) that the discharges have been from point sources, including the site itself, ditches, check dams, and gullies and rills; (4) that Defendants have discharged fill material into [waters of the United States]; and (5) that these discharges occurred without permits . . . .
Id. at 669.

After reviewing case law on point, the court held that "wetlands adjacent to a nonnavigable tributary of a traditional navigable water are waters of the United States subject to CWA jurisdiction"; therefore, "the wetlands adjacent to Cypress Branch are waters of the United States." Id. at 674. The court also held that "the addition of materials caused by Defendants' ditching activities qualifie[d] as a 'discharge' for purposes of the CWA." Id. at 676. Finally, the court held that sediment, fecal coliform, and stormwater constituted pollutants, and that the defendants' construction site constituted a point source. Id. at 679-81. For these reasons, the court granted the plaintiffs' motion for summary judgment regarding the violation of § 404 of the CWA. Id. at 683. However, the court held that "[g]enuine issues of material fact clearly exist[ed] with respect to the purposes behind Defendants' ditching activities," and therefore the court denied the plaintiffs' motion for summary judgment "on the applicability of the CWA silvacultural exemption." Id.

The case was decided on July 25, 2003.