Summary of a Recent
Judicial Development in
Environmental Law

Sediment, Soil, Trees and Organic Debris Constitute
Pollutants under the Clean Water Act

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Tungett v. Papierski, No. 3:05-CV-289, 2006 WL 51148 (E.D. Tenn. Jan. 10, 2006), the United States District Court for the Eastern District of Tennessee denied the defendant's motion to dismiss for lack of subject matter jurisdiction. The plaintiffs, owners of real property located near Kinser Branch, brought action against the defendant for trespassing onto the plaintiffs' property and pushing debris into Kinser Branch damaging the stream. The defendant moved to dismiss the plaintiffs' claims alleging that the court lacked subject matter jurisdiction. The court held that the plaintiffs pled sufficiently to authorize it to exercise jurisdiction pursuant to the Clean Water Act's (CWA) citizen suit provision.

Background

Two springs and part of the Kinser Branch stream crossed the plaintiffs' Tennessee real properties. Id. at *1. The plaintiffs brought action against the defendant for allegedly trespassing on the plaintiffs' land and pushing debris and soil into Kinser Branch, causing severe damage to the stream. Id. The plaintiffs brought action claiming that the defendant's bulldozing activities constituted dredge and fill activities in violation of the CWA, 33 U.S.C. § 1365. Id.

Arguments

The plaintiffs alleged that the defendant violated the CWA by bulldozing dredge and fill material into Kinser Branch without a permit, an unlawful act pursuant to 33 U.S.C. § 1311(a). Id. at *1-2.

The defendant claimed the materials were "natural neighbors of a woodland stream." Id. at *1. The defendant also asserted that driving a bulldozer through a stream had never previously been held to violate the CWA. Id. at *2. Furthermore, the defendant claimed the court lacked subject matter jurisdiction because the plaintiffs failed to plead a violation of 33 U.S.C. § 1311(a), and the dispute was between non-diverse Tennessee parties. Id.

Analysis and Holdings

Section § 1311(a) of the CWA states, "the discharge of any pollutant by any person [is] unlawful." Id. Discharging a pollutant involves adding a pollutant to navigable waters from a point source. Id. The defendant disputed that the materials at issue constituted pollutants and that his bulldozer constituted a point source. Id. The court addressed these arguments in turn.

In 33 U.S.C. § 1362(6), a pollutant is defined as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discarded into water." Id. Although "sediment, soil, dirt, trees, and organic debris" were not included in the definition, Sixth Circuit case law held that the materials in dispute were in fact pollutants. Id.

In 33 U.S.C. § 1362(14), a point source is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." Id. at *3. Citing extensive case law in support, the court held that a bulldozer was a point source. Id.

For these reasons, the court held that the plaintiffs had "pled an 'unlawful act' under § 1311(a) and [had] accordingly pled a violation of an 'effluent standard or limitation,' giving this court subject matter jurisdiction over their citizen suit." Id.

The case was decided on January 10, 2006.