Two plaintiffs brought this Clean Water Act (CWA) citizen’s suit against their neighbors who owned 191 acres of agricultural land. The defendants had installed drainage tile several times in recent years, most recently in 2014. The defendants did not obtain a CWA section 404 permit to discharge dredged materials into a navigable water. In 2015, after a heavy rain, the plaintiffs’ property began to experience unprecedented flooding that destroyed their home and other property. The plaintiffs claimed in their citizen’s suit that the previous tiling activity was an unauthorized discharge of a pollutant in violation of Sections 301 and 404 of the CWA. The defendants moved for summary judgment, asserting that the plaintiffs sought to impose liability for a “wholly past violation.”
To have standing in a citizen suit, the proponent must prove that the alleged violation is continuous or intermittent, but still ongoing. Tamaska v. City of Bluff City, Tenn., 26 F. App'x 482, 485 (6th Cir. 2002). Here, there was insufficient evidence that there was either a continuing discharge of a pollutant or a likelihood of a continuing discharge of a pollutant when the plaintiffs filed this lawsuit in 2018. The defendants had not conducted any tiling activities since the lawsuit was filed, nor was there evidence that they intended to do so.
Additionally, any ongoing discharge from the drainage system only consisted of water. While that may be causing flooding on the plaintiffs’ property, water is not a pollutant. Therefore, the plaintiffs asserted a wholly past violation and their “remedy, if any, [was] not grounded in the Clean Water Act in federal court.” See Bettis v. Town of Ontario, N.Y., 800 F. Supp. 1113, 1120 (W.D.N.Y. 1992). The court declined to exercise supplemental jurisdiction over the plaintiffs’ remaining nuisance and negligence claims and granted the defendants’ motion for summary judgment.
The case is Ward v. Stucke, 2021 WL 4033166 (S.D. Ohio, Sept. 3, 2021).