Sidecasting of Dredged Riverbed Material is “Pollutant”; Clean Water Act Violations Upheld

February 10, 2010 | Roger McEowen

 

The Clean Water Act (CWA) makes it illegal to discharge a “pollutant” into the “navigable waters of the United States” without a permit.  Violations can include the imposition of fines and/or imprisonment.  Many court decisions have been rendered over the years and the U.S. Supreme Court, in 2006, rendered its most recent opinion involving the question of federal regulation over isolated wetlands (Rapanos, et ux., et al. v. United States Army Corps of Engineers, 126 S. Ct. 2208 (2006))Unfortunately, the Court failed to clarify the meaning of the CWA phrase “waters of the United States” and the scope of federal regulation of isolated wetlands.  The Court did not render a majority opinion, instead issuing a total of five separate opinions.  The plurality opinion (written by Justice Scalia) would have limited federal jurisdiction over wetlands to only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right.  But, Justice Kennedy wrote a separate concurring opinion, but on narrower grounds.  Justice Kennedy reasoned that federal jurisdiction is present if the “wetland” possesses a significant “nexus” to waters that are navigable in fact or could reasonably be made so.  Since the Supreme Court’s opinion, the lower courts have struggled to determine the proper test to determine federal jurisdiction over wetlands. 

Here, the United States Court of Appeals for the 6th Circuit determined that a Kentucky father and son who filled wetlands with sidecast materials (ditch diggings) violated the Clean Water Act.  The court criticized the U.S. Supreme Court's splintered ruling in Rapanos, but still found the pair in violation of the CWA.

The father and son owned adjacent tracts in Muhlenberg County, with the court noting that the "sordid ecological history" of the tracts had been made famous by John Prine's song "Paradise."  The court also noted that the wetlands on the tracts held "exceptionally acidic orangish to reddish colored water that had drained out of an abandoned coal mine located on a neighbor's nearby property."   After buying the properties, the pair began clearing and draining the land for agriculture without a permit, despite government directives to stop.  The pair dug about 12,000 feet of ditches, using the excavated material to soak up the moisture on roughly five acres of wetlands, a practice known as "sidecasting."

The government sued for Clean Water Act violations on the grounds that the filling of the wetlands affected flooding, acid concentration and sedimentation of the adjacent creeks and the Green River.   The trial court agreed, and fined the pair $225,000.  All except $25,000 of the fine would have been suspended had the pair implemented a restoration plan to undo the ditches and replant some of the lost vegetation.  The father and son appealed.  While the appeal was pending, the Supreme Court decided Rapanos.  As a result, the appellate court sent the case back to the trial court to reconsider the federal government’s jurisdiction in light of the Supreme Court’s Rapanos decision.  On reconsideration, the trial court again held that federal jurisdiction was proper.  Again, the pair appealed.

 The Sixth Circuit examined the various post-Rapanos opinions by the lower courts and noted the difficulty the courts have had in attempting to reconcile the Rapanos ruling.  On that point, the court stated,  "[T]he ability to glean what substantive value judgments are buried within concurring, plurality, and single-justice opinions would require something like divination to be performed accurately.”  However, the court was ultimately able to apply more than one Rapanos standard to the present case because the wetlands were adjacent to creeks that flowed into the Green River.  As a result, the court reasoned that the plaintiff’s sidecasting activity satisfied both Justice Kennedy's "significant nexus" test and the plurality's continuous surface connection to a "water of the United States" test.  The court also dismissed the plaintiffs’ argument that "sidecasting" is not pollution, pointing out that the CWA includes dredged spoil under its definition of pollutant.  The court also denied the plaintiffs’ attempts to justify their work under the exemption for agricultural activities, and dismissed the rest of their claims.

The court’s decision is an important one for agriculture, and points out that common dredging activities can get caught in the government’s wetlands web. United States v. Cundiff, No. 05-5469/5905 (6th Cir. Feb. 4, 2009).