32 ELR 20320 -- North Carolina Shellfish Growers Ass'n v. Holly Ridge Associates, L.L.C.

North Carolina Shellfish Growers Ass'n v. Holly Ridge Associates, L.L.C.

No. 7:01-CV-36-BOC(1) (UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA November 8, 2001)

ELR Digest

A court denies a landowner's motion to dismiss environmental groups' Clean Water Act (CWA) citizen suit against the landowner for ditch digging in wetlands and discharging to surrounding waters without the proper permits. The court first holds that the CWA § 505(a) citizen suit provision is constitutional. The landowner's claim that the power to bring a civil enforcement action is strictly a power of the executive branch to the exclusion of private citizens is unsupported by the law. The U.S. Congress establishes rights and obligations and may determine who may enforce them. Thus, Congress is permitted to create a private right of action under the CWA to encourage private enforcement of the Act's duties. Likewise, CWA § 505's citizen suit provision does not offend the separation-of-powers doctrine because the doctrine of separation of governmental powers does not apply to private citizens. CWA § 505 citizen suits are not controlled by Congress or the judiciary, and, therefore, neither offend the separation-of-powers doctrine nor impermissibly undermine executive authority. The court next holds that a CWA § 505 citizen suit also does not deprive the landowner of substantive due process. The court further holds that the groups' suit should not be dismissed under CWA § 309(g), which provides that CWA violations for which a state has commenced and is diligently prosecuting a state-law action comparable to the CWA shall not be subject to a civil penalty. The state brought proceedings against the landowner under the state Sediment Act, but the Sediment Act is not comparable to the CWA and does not bar the groups' citizen suit. Moreover, the CWA authorizes the groups' claims against the landowner under CWA §§ 401, 402, and 404. CWA § 505 allows for citizen suits to enforce effluent standards and limitations, and §§ 401, 402, and 404 all concern effluent standards.

The full text of this opinion is available from ELR (12 pp., ELR Order No. L-403).

Counsel for Plaintiffs
Derb S. Carter Jr.
Southern Environmental Law Center
200 W. Franklin St., Ste. 330, Chapel Hill NC 27516
(919) 967-1450

Counsel for Defendant
George House
Brooks, Pierce, McLendon, Humphrey & Leonard
230 N. Elm St., Greensboro NC 27401
(919) 373-8850

[32 ELR 20320]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]