A United States District Court (SD Georgia) (“Court”) addressed in an order dated June 30 certain issues arising from an enforcement action under the 404 Clean Water Act. See Baker v. Mortgage of America Lenders, LLC et al, 2022 WL 2374388.
The issue under consideration was whether liability under Section 404 of the Clean Water Act could potentially be imposed on an owner of certain lots in a residential development who did not commit the original alleged violations.
Mortgage of America Lenders, LLC (“MA”) and TowneClub (“TC”) are declared owners of a construction project in St. Simons Island, Georgia, known as Captain’s Cove Subdivision (“Captain’s Cove”) . MA owns the majority of the lots in the residential subdivision as well as some wetlands subject to the Clean Water Act 404 Wetlands Jurisdiction.
TC is declared the owner of certain lots in the first phase and of additional lots in the second phase.
The plaintiffs are individuals who live or own property near Captain’s Cove. They brought three causes of action against MA and TC, including:
- Defendants engaged in the unauthorized dumping of dredged and fill material in Wetland C by removing vegetation and constructing stormwater drainage structures without a permit, in violation of Sections 301 and 404 of the Wetlands Act. water sanitation
- Defendants failed to implement or maintain best management practices for erosion and sediment control as required by the Georgia Environmental Protection Division’s NPDES General Permit, in violation of Section 311 of the Clean Water Act
- Defendants filled in the wetlands in question in unauthorized locations in violation of Section 301 of the Clean Water Act
Plaintiffs were permitted to add TC as a defendant arguing:
… [W]Without the cooperation of TowneClub, Mortgage of America cannot implement [Best Management Practices] on certain Captain’s Cove lots or otherwise comply with [NPDES] permit
TC filed a motion to dismiss arguing that the complaint should be dismissed for:
- Absence of jurisdiction ratione materiae
- Failure to report a claim for which relief may be granted
TC argued that subject matter jurisdiction was absent because it had:
… no involvement in development at the time the alleged violations occurred
He further argued that the Clean Water Act does not allow lawsuits against adjacent landowners who do not own the land where the violations occurred.
The Court rejected this argument, noting that the jurisdiction of the Clean Water Act is based on the demonstration that the plaintiff:
… when the lawsuit was brought, there was a state of continuous or intermittent violation – that is, a reasonable likelihood that a past polluter will continue to pollute in the future.
A good faith allegation of violations at the time of prosecution has been deemed sufficient for jurisdictional purposes.
The Court held that the plaintiffs had made the necessary allegations even though TC had not committed the original violations. It was noted that they alleged in their Second Amended Complaint that TC is involved in ongoing violations of the Clean Water Act with respect to:
- Unauthorized dumping of dredged and fill material in Wetland C without permit
- Failure to implement and maintain best management practices for erosion and sediment control as required by the NPDES permit
- Filling of the wetlands in question in unauthorized locations in violation of Section 401
The facts that the Court has found sufficient to satisfy a motion to dismiss are as follows:
- The wetlands in question are affected by the land around them
- TC owns land immediately surrounding the wetlands in question
- TC was notified of its alleged violations of the Clean Water Act at least 60 days before being added as a defendant
TC’s involvement was therefore considered by the Court to be (if true) involved in continuing violations rendering subject matter jurisdiction appropriate.
The Court also rejected the argument that, despite subject matter jurisdiction, the plaintiffs did not bring a claim for which relief can be awarded. The claim was again deemed viable despite the argument that TC does not own the wetlands in question and the violations occurred prior to its purchase of the surrounding property.
The Court said:
… This argument, however, misunderstands the plaintiffs’ allegations. Plaintiffs allege ongoing violations of the CWA occurring on TowneClub property which, as stated…affects the wetlands in question to establish a claim for relief against Towneclub.
TC’s motion to dismiss was denied.
A copy of the decision can be downloaded here.