Gulf Restoration Network v. Hancock County Development, LLC
2011 U.S. Dist. LEXIS 17352
S.D. Miss.2011Background
- Gulf Restoration Network sued Hancock County Development under the Clean Water Act for alleged discharges and wetland filling during construction on Hancock’s property.
- Hancock began canals, ditches, berms, dams, roads, and wetland filling without permits; NOV issued by the U.S. Army Corps of Engineers on November 2, 2007.
- The project abuts Bayou Maron and Bayou La Croix; the Schuengel and Lang properties experienced flooding and aesthetic/recreational impacts from Hancock’s activities.
- Gulf Restoration seeks partial summary judgment on liability and standing; Hancock did not timely respond.
- The court preliminarily determines Gulf Restoration has organizational standing, and Hancock violated Sections 402 and 404 of the Clean Water Act.
- The court grants partial summary judgment for Gulf Restoration on liability and standing only.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gulf Restoration has organizational standing | Gulf Restoration has three members with injury, germane to its purpose, no need for member participation | Not shown; standing lacking for organizational plaintiff | Gulf Restoration has standing to sue on injunctive relief and penalties |
| Whether Hancock violated §402 (storm water permit) | Discharges of storm water from industrial activity without a permit. | Question disputed about whether activity disturbed five acres or part of a larger plan | Hancock violated §402; storm water discharges associated with industrial activity without a permit constitute violations |
| Whether Hancock violated §404 (dredge/fill in wetlands) | Dredged/fill material discharged into wetlands adjacent to waters of the United States without permit | Dispute over whether wetlands qualify as waters of the United States; expert testimony unnecessary | Hancock violated §404 by discharging dredged and fill material into wetlands adjacent to waters of the United States without a permit |
Key Cases Cited
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) (standing elements; injury-in-fact and redressability principles)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (injury in fact; traceability; redressability—core standing test)
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (standing as threshold jurisdictional issue; volatile to jurisdictional analysis)
- Hunt v. Washington State Apple Advertising Co., 432 U.S. 333 (1977) (individual participation generally not required for association seeking injunctive relief)
- Ass'n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547 (5th Cir. 2010) (association standing for injunctive relief; no damages requirement per se)
- United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (wetlands adjacent to navigable waters are within reach of the Act)
- Rapanos v. United States, 547 U.S. 715 (2006) (tests for when wetlands are waters of the United States; significant nexus approach discussed)
- United States v. Lucas, 516 F.3d 316 (5th Cir. 2008) (application of Rapanos tests in Fifth Circuit)