84 F. Supp. 3d 848
C.D. Ill.2015Background
- Waterkeeper and Prairie Rivers allege Ballegeer entities discharged pollutants from Sites 1-5 on the Green River without a valid CWA permit.
- Plaintiffs allege concrete, rebar, and dredged materials were placed on river banks and bed, below the ordinary high water mark, and into the river channel.
- Defendants dispute liability, arguing documentation and specific permit conditions (NWP 13, NWP 3, and maintenance exemption) may authorize some activities.
- Waterkeeper’s corporate status had a temporary dissolution; it was reinstated retroactively, and the court also considers associational standing through identified members Norris and Daggett.
- The court addresses standing, the merits of the CWA claims, and related discovery/strike motions; the rulings deny summary judgment to Defendants on several grounds while granting partial relief to Plaintiffs.
- The Green River is a navigable water of the United States; excavators are point sources, and permits typically regulate such discharges under the CWA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Waterkeeper have standing to sue on behalf of its members? | Waterkeeper members have injury-in-fact via diminished recreational/aesthetic use; Waterkeeper has indicia of membership and capacity to sue. | Waterkeeper lacked standing due to dissolution and absence of true membership; Prairie Rivers’ membership unclear. | Yes; Waterkeeper has associational standing and capacity to sue. |
| Have Waterkeeper and Prairie Rivers' identified members suffered an injury-in-fact? | Norris and Daggett have concrete recreational/aesthetic injuries from discharges; injuries are particularized and not wholly speculative. | Injuries are too generalized or premised on trespass concerns; some evidence of improved fishing undermines injury. | Yes; the affidavits establish injury-in-fact sufficient for standing. |
| Do Defendants’ discharges violate the Clean Water Act and are they unassisted by NWPs 13/3 or maintenance exemption? | Discharges onto banks, bed, and water without an individual §404 permit violate §301; lack of compliance with NWP 13/3 conditions precludes permit defense; maintenance exemption is narrowly construed and not satisfied here. | Activities may be authorized under NWPs 13 or 3 or fall within maintenance exemption; material factual disputes exist about spillage and erosion controls. | Partial summary judgment for Plaintiffs; NWP 13 does not authorize; NWP 3 not fully authorized; maintenance exemption not definitively applicable; issues remain for trial on some aspects. |
Key Cases Cited
- Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (U.S. 2000) (injury-in-fact supports standing when environmental harms affect plaintiffs' interests)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (constitutional standing requirements; injury, causation, redressability)
- Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333 (U.S. 1977) (three-prong associational standing test)
- Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856 (7th Cir. 1996) (standing by association; members need not be named)
- Paradise Creations, Inc. v. UV Sales, Inc., 315 F.3d 1304 (Fed. Cir. 2003) (reaffirming associational standing considerations)
- United States v. Huebner, 752 F.2d 1235 (7th Cir. 1985) (maintenance exception narrowly construed under CWA §1344(f)(1)(B))
- Greenfield Mills, Inc. v. Macklin, 361 F.3d 934 (7th Cir. 2004) (definition of original fill design for maintenance exemption analysis)
- David Ballegeer v. United States Army Corps of Engineers, 13 F.3d 1230 (7th Cir. 1994) (relevance of dredge material and incidental fallback considerations under CWA)
- National Mining Ass’n v. United States Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998) (incidental fallback regulatory limits under §404)
- Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878 (7th Cir. 1998) (affidavits must contain specific facts; avoid impermissible opinions)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (U.S. 2000) (injury-in-fact sufficient where concerns about effects on recreational interests)
- United States v. Greenfield Mills, Inc., 361 F.3d 934 (7th Cir. 2004) (interpretation of original fill design for maintenance exemption)