39 ELR 20025a--United States v. Cundiff

United States v. Cundiff

Nos. 05-5469 et al, 39 ELR 20025 (6th Cir. Feb. 4, 2009)

The Sixth Circuit held that a lower court properly granted summary judgment in favor of the United States in its Clean Water Act (CWA) case against property owners that drained contaminated wetlands despite multiple warnings by state and federal officials that their activities were illegal. The government properly asserted jurisdiction under both Justice Kennedy’s "significant nexus" test and the plurality test in Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006). The record supports the lower court's conclusion that the wetlands have a significant nexus with the navigable-in-fact Green River, via two tributaries of that river. The wetlands perform significant ecological functions in relation to the Green River and the two creeks, including temporary and long-term water storage, filtering of acid runoff and sediment from a nearby mine, and providing an important habitat for plants and wildlife. The court rejected the owners' claims that significant nexus may only be proved by laboratory analysis of soil samples, water samples, or through other tests. As for the plurality test, the property adjacent to the wetlands contains relatively permanent bodies of water connected to a traditional interstate navigable water, the Green River, and the wetlands possess a "continuous surface connection" with the Green River and its tributaries. Because the government demonstrated that the owners discharged a pollutant from a point source into waters of the United States without a permit, and because the owners' activities did not fall under the CWA's farming exception or drainage ditch maintenance exception, the lower court properly granted summary judgment. The court also held that the lower court did not abuse its discretion in entering the government's proposed remediation order and that the owner's takings-, mandatory duty-, and tort-based counterclaims failed as a matter of law.

[A prior decision in this litigation can be found at 37 ELR 20082.]

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