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North Carolina Wildlife Fed'n v. Woodbury

Citation: 19 ELR 21308
No. No. 87-584-CIV-5, 29 ERC 1941/(E.D.N.C., 04/25/1989)

The court holds that it has subject matter jurisdiction to review a Federal Water Pollution Control Act (FWPCA) citizen suit concerning illegal destruction of North Carolina wetlands because plaintiffs have clearly alleged continuing violations, the statute of limitations period would not begin to run until alleged violations were reported, and plaintiff has not unreasonably delayed suit. Federal jurisdiction is not conferred over citizen suits for wholly past violations, and is only conferred over violations having persistent effects that are amenable to correction. Defendant's failure to remove improperly discharged material constitutes a continuing violation. Characterizing the presence of dredge and fill material and the failure to take remedial measures as a continuing violation is reasonable because it is not the physical act of discharging dredge wastes itself that leads to the injury giving rise to citizen standing, but the consequences of the discharge in terms of lasting environmental degradation. If citizen suits were barred merely because any illegal ditching and drainage of a wetland tract was completed before it might reasonably be discovered, violators would have a powerful incentive to conceal their activities from public and private scrutiny. The court holds that plaintiffs' claim is not barred by statutes of limitations. The FWPCA contains no explicit statute of limitations, and the five-year federal statute of limitations, 28 U.S.C. § 2462, does not apply where plaintiff seeks equitable relief rather than civil penalties. Moreover, the statute of limitations is tolled for claims under the FWPCA until reports documenting the violations have been filed with the United States Environmental Protection Agency (EPA). Additionally, plaintiffs' claim is not barred by laches. No evidence points to a lack of diligence by plaintiffs in commencing this action so as to render a possible decree against defendants unfair.

[On August 25, 1989, the parties entered into a consent decree. Under the terms of the settlement, the Army Corps of Engineers withdraws its determination that the area is no longer a wetland, EPA will make a new determination on the extent of wetlands on the tract, and the private defendants will not pursue peat mining in wetlands. In addition, the Corps and the EPA agreed to pay approximately $ 186,500 in attorneys' fees and costs.]

Counsel for Plaintiffs
David W. Carr, Deborah M. Wassenaar
McGuire, Woods, Battle & Boothe
P.O. Box 1288, Charlottesville VA 22902
(804) 977-2500

Counsel for Defendants
Jean Anne Kingrey
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2716

Thomas N. Barefoot
1300 St. Mary's St., P.O. Box 12807, Raleigh NC 27605
(919) 821-1220