USA v. Cundiff

Feb 4: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 05-5469/5905; 07-5630. The case involves an interpretation of the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006) and the definition of wetlands and the “waters of the United States.” By way of background, the Appeals Court explains that after eight years of failed negotiations and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy) and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and civil penalties against them for discharging “pollutants” into “waters of the United States” without a permit in violation of the Clean Water Act. 33 U.S.C. § 1362.

The district court granted summary judgment for the government, imposed injunctive relief in the form of a restoration plan for the Cundiffs’ wetlands, and imposed a civil penalty of $225,000. All but $25,000 of that penalty was suspended, however, provided that the Cundiffs implemented the restoration plan. The district court also dismissed the Cundiffs’ array of statutory, common law, and constitutional counterclaims.

The Appeals Court indicates that while the original appeal in this case was pending, the Supreme Court issued its "splintered ruling" in Rapanos, which defined the Act’s jurisdiction over “waters of the United States.” In light of Rapanos, the Appeals Court returned the case to the district court to reconsider whether jurisdiction was proper over the Cundiffs’ wetlands. According to the Appeals Court, "The district court determined that it was because the Cundiffs’ wetlands were in fact waters of the United States, and the Cundiffs appealed. We affirm the district court on all grounds."

The Appeals determined that, "the Cundiffs "actively filled the wetlands with dredged spoil and covered roughly 5.3 acres of wetlands next to about 11,900 feet of ditches", thus the Appeals Court said, ". . . they discharged a pollutant under the Act." The Cundiffs argue that their activities fall into either the farming exception, § 1344(f)(1)(A), or the drainage ditch maintenance exception, § 1344(f)(1)(C). The Appeals Court rejects those arguments, and says, "Even if the Cundiffs’ activities fell within either the farming or drainage ditch maintenance exemptions, they would still have been required to get a permit under the 'recapture provision,' 33 U.S.C. § 1344(f)(2), which states that a permit is still required whenever a dredging activity has 'as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,' and the 'flow or circulation of navigable waters may be impaired or the reach of such waters reduced.'" The Appeals Court ruled, ". . . the district court properly granted summary judgment on their liability."

Access the complete opinion (click here). Access multiple postings on the WIMS-eNewsUSA blog relating to the Rapanos decision (click here). [*Water]