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Part III. Clean Water Act (CWA) Forms



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Part III. Clean Water Act (CWA) Forms
Chapter 15. Complaints Under The Clean Water Act
§ 15:18. Private party complaint against the government for wetlands destruction
This form is a complaint brought by an environmental group against the Army Corps of Engineers for destroying freshwater wetlands. Plaintiffs seek injunctive relief under which the government would be prohibited from engaging in any additional nonpermitted wetlands fill activities.
IN THE UNITED STATES DISTRICT COURT
FOR THE_______________
______________________________

,







Plaintiffs, Civil Action no., ______________________________







v.

______________________________






Civil Action No.:

,







Defendants.








Amended Complaint
Introduction
1. __________________'s precious freshwater wetlands are being destroyed. Hundreds of thousands of acres of vital wetlands on the coast of __________________ have been lost, and with them, the crucial flood protection, food storage, water purification, salinity balancing, sedimentation prevention and wildlife refuge functions they provide.
2. In 1972, the Congress of the United States, in passing the comprehensive Federal Water Pollution Control Act Amendments, made clear its intent to protect and preserve the waters of the United States from destruction. In 1977, with the passage of the Clean Water Act, the Congress reiterated its intent to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." In so doing, the Congress entrusted to the Administrator of the Environmental Protection Agency ("EPA") and the Army Corps of Engineers ("Corps") the crucial task of administering the Act's "404" program, which prohibits any dredging or filling in our Nation's vital wetland resources and other waters without a permit properly issued under the Clean Water Act.
3. Rather than fulfilling that trust, the defendants have instead, through a series of actions and inactions, put the delicate balance of water quality and a healthy, productive estuarine system on the coast of __________________in serious jeopardy.
4. This action challenges the illegal conduct of the defendants in allowing the destruction of wetlands on the__________________ Peninsula, and in part, involves two separate wetland areas which have common ownership and some common problems:
a. __________________-Tract I (Exhibit I)
i. Tract. __________________Farms is engaged with __________________ Associates in a venture to mine peat from over 100,000 acres of its land in__________________ and __________________Counties and convert it to a synthetic fuel—methanol—for chemical and automotive fuel uses. This operation began with an application to the state of __________________ for a peat mining permit to extract peat from and otherwise disturb approximately __________________acres of __________________land in an area lying generally south and east of Lake __________________.
ii. Violations. This approximately __________________-acre tract is composed of wetlands which:
1. Corps and EPA defendants have refused to designate as such;
2. Corps defendants have refused to require permits for dredging and filling these wetlands under § 404 of the CWA; and
3. An effect of these refusals has been illegally to absolve the Corps of its responsibility to prepare an environmental impact statement under § 102(2)(C) of the National Environmental Policy Act [NEPA] analyzing the effects of dredging and filling this vast expanse of wetlands.
b. __________________ Farms-Tract II (Exhibit I)
__________________Farms, which purchased thousands of acres in__________________ and __________________counties from__________________ Farms, is a joint venture of the owner of __________________Farms and__________________ Insurance Company.
The President of __________________Farms is also the Managing Agent of__________________ Farms.
i. Tract. __________________ Lake Creek Basin and__________________ Lake Creek Basin comprise an approximately __________________-acre tract. It lies within a __________________-acre area which__________________ Farms intends to convert to agricultural use and for which it has applied for a § 404 permit.
ii. Violations. This tract, like the entire __________________-acre area in which it lies, is composed of wetlands, which Corps defendants have properly designated as such. Defendants' violations include:
1. Failure to order__________________ Farms to cease unpermitted dredge and fill activities which modified the hydrological conditions in the tract;
2. Allowing __________________Farms to dredge and fill during preparation of an environmental impact statement and during the permit review process on the subject of whether to permit such dredging and filling.
5. This action also challenges other of defendants' actions by which they have attempted to limit the jurisdiction of the Clean Water Act.
Jurisdictional Statement
6. The Court has jurisdiction of this action pursuant to 28 U.S.C.A. § 1331 (federal question); 33 U.S.C.A. § 1365 (citizens' suit provision of the Clean Water Act); 5 U.S.C.A. §§ 701 et seq. and 28 U.S.C.A. § 1361 (action in the nature of mandamus); and 28 U.S.C.A. §§ 2201 to 2202 (action for declaratory judgment). This action is brought to enforce Sections 301, 309, and 404 of the Clean Water Act, 33 U.S.C.A. §§ 1311, 1319, and 1344 and its implementing regulations, and Section 102(2) of the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4332(2), and its implementing regulations.
Plaintiffs
7. Plaintiff__________________ (__________________ ) is a not-for-profit corporation organized under the laws of the__________________ in__________________ , dedicated to the restoration, wise use and conservation of natural resources. __________________has over__________________ members, affiliate organizations in __________________states, as well as__________________ , and__________________ , and the__________________ , and is the largest nongovernmental conservation and education organization in the world. Its address in __________________.
8. Plaintiff__________________ (__________________ ) was incorporated in__________________ in the__________________ as a nonprofit, tax-deductible organization for the purposes of research and education on key energy and environmental laws. __________________monitors the implementation of these laws with a special interest in water resources and wetlands. Since its founding, __________________has been involved with helping citizens to understand and participate in the activities of federal agencies as they relate to the CWA and wetland protection. __________________produces and distributes a periodic educational newsletter reporting on clean water, wetland protection, and other environmental issues to concerned citizens across the country. Its office is located at__________________ .
9. Plaintiff __________________is a statewide membership organization, affiliated with the __________________and has approximately __________________members. It is primarily devoted to wise use, conservation, aesthetic appreciation, and restoration of wildlife and other natural resources in the state of__________________ . __________________ recognizes that protection of wetlands in the state of is critical to the quality of its waters. It maintains an office at __________________.
10. Plaintiff __________________is an association of citizens concerned about water quality in the__________________ River. The__________________ works to preserve and enhance the quality and productivity of the waters of the__________________ River through public education and participation in decision-making processes affecting water quality in the region. The __________________maintains an office at__________________ .
11. Plaintiff __________________is a community organization formed to discuss issues and problems of concern to the community of__________________ and to develop projects to improve the quality of life in the community. The __________________performs civic and quasi-governmental functions for__________________ , an unincorporated community with a population of approximately__________________ . Its address is General Delivery, __________________ .
12. Plaintiff __________________is a non-profit organization incorporated in__________________ in the state of __________________. The purpose of this membership organization is to educate the public on water quality issues and, through public participation in the decision-making process, to preserve and enhance water quality in the__________________ and __________________River Basins. The__________________ maintains an office at __________________.
13. Plaintiff __________________, incorporated in the state of__________________ in__________________ , is a not-for-profit organization with__________________ members and member organizations with a total of over members, and is dedicated to the maintenance and protection of a healthy and beautiful environment in the state of__________________ . The __________________is particularly concerned about and regularly participates in administrative proceedings involving water quality in the state of __________________. The__________________ maintains an office at __________________.
a. Plaintiff __________________is incorporated under the laws of the__________________ of __________________. The objectives of the corporation are the study, promotion and development of the use, conservation and propagation of seafood products and in gathering and disseminating information which will be beneficial to those engaged in catching, taking, preparing and preserving or distributing products of the sea.
b. The __________________represents the thousands of people in eastern __________________whose livelihoods are directly affected by the seafood industry, including fishermen, crabbers, boat captains and crews, dock owners, seafood processors, wholesalers, retailers, restaurant owners, and suppliers, and the many others who are directly or indirectly dependent on the seafood industry for their livelihoods. Its address is__________________ .
15. Members of each of the plaintiffs regularly use and enjoy the waters of the coastal rivers, sounds, and estuaries of __________________, and other waters of the United States known as wetlands, including the wetlands that are located on the __________________Peninsula, __________________, for outdoor recreation, including fishing, hunting, boating, hiking, camping, nature observation, photography, scientific study and aesthetic enjoyment. In addition, members of each of the plaintiffs have a substantial interest in the protection and preservation of __________________'s and the__________________ 's wetlands because they contribute to the maintenance and restoration of the chemical, physical and biological integrity of surface and groundwaters. Many of the plaintiffs have, through participation in numerous legislative, administrative, and judicial proceedings, demonstrated their strong interest in the effective protection of the chemical, physical and biological integrity of the Nation's waters and the proper implementation of the CWA. Plaintiffs and their members will be adversely affected in their activities and in their persons by the actions challenged here. Plaintiffs' interests in this proceeding fall squarely within the zone of interests protected by the CWA.
Defendants
16. Defendant __________________is sued in his official capacity as District Engineer of the District of the__________________ United States Army Corps of Engineers. Colonel Hanson is responsible on a daily basis for the operation of the __________________District office of the Army Corps of Engineers, including the activity of the Corps personnel under his supervision. The __________________District office, located at P.O. Box 1890, __________________ , has within its jurisdiction the state of __________________and the wetlands that are the subject of this action. __________________is responsible in the first instance for the lawful implementation of Section 404 of the Clean Water Act and the National Environmental Policy Act as it relates to the regulation of wetland activities within his jurisdiction. Defendants __________________are sometimes referred to collectively as the Corps defendants.
17. Defendant , is sued in his official capacity as Secretary of the United States Department of the Army, the principal office of which is located at , is charged with ultimate responsibility for insuring that the actions of the Department of the Army and the Corps of Engineers under the Clean Water Act and the National Environmental Policy Act, including the issuance of regulations and permits, are conducted in accord with applicable law and regulation.
18. Defendant __________________is sued in his official capacity as the Chief of Engineers of the United States Army Corps of Engineers (Corps). His office is located at __________________. __________________is responsible for the lawful implementation of the Section 404 program on a daily basis, including responsibility for the actions of Corps officials under his supervision.
19. Defendant__________________ is sued in his official capacity as Assistant Secretary (Civil Works) of the United States Department of the Army, the principal office of which is located at__________________ . In that capacity he has immediate responsibility for supervision of the Corps of Engineers and is responsible for insuring lawful implementation of the section 404 program of the CWA by the Department of the Army and the Corps of Engineers.
20. Defendant __________________is sued in his official capacity as the Administrator of the United States Environmental Protection Agency, the principal office of which is located at__________________ . In that capacity, __________________is charged with responsibility of implementing the Clean Water Act and § 404 thereof, including determining the jurisdictional scope of § 404, issuing orders to prohibit the discharge of pollutants into the waters of the United States, and prohibiting the specification of sites for the disposal of dredged or fill material.
21. Defendant __________________is sued in his official capacity as Regional Administrator of the United States Environmental Protection Agency, the principal office of which is located at__________________ . As such, he is responsible for the operation of the__________________ Regional Office of the Environmental Protection Agency and the actions of the EPA employees under his supervision. __________________is charged with responsibility for implementation of the Clean Water Act and Section 404 thereof, including activities related to the discharge of pollutants into the waters of the United States such as wetlands under his jurisdiction. The state of __________________, including the wetlands that are the subject of this action, are within the jurisdiction of the__________________ Regional Office of the Environmental Protection Agency. __________________and__________________ are sometimes collectively referred to herein as the EPA defendants.
21a. Defendant __________________is a general partnership organized under the Uniform Partnership Act for the primary purpose of designing, constructing, owning and operating a peat-to-methanol synthetic fuels plant and mining peat deposits from wetlands in several coastal counties of__________________ .
21b. Defendant __________________Farms, Inc. is a joint venture of__________________ , owner of __________________Farms, Inc., and__________________ Insurance Company, doing business in __________________and__________________ counties, __________________ . Farms, Inc. maintains its principal place of business at__________________ , __________________ . Its address is __________________.
FACTUAL BACKGROUND
Wetlands
22. This nation's wetlands are a vital natural resource, essential to maintaining our fish and wildlife populations. Wetlands perform essential water quality functions by recycling nutrients, holding and trapping sediments, and removing pollutants. Wetlands also recharge groundwater supplies. The ability of wetlands to retain and impede surface water runoff and flood waters makes them invaluable for flood protection.
23. Wetlands also provide vital breeding, nesting, molting and wintering habitat for migratory waterfowl. Ten to twelve million ducks breed in the wetlands of the lower 48 states, as well as 60 to 70 percent of the nation's mallards, 50 percent of the wood ducks and 55 percent of the woodcocks.
24. Two-thirds of the commercial fish species harvested on the__________________ and __________________coasts depend on coastal estuaries and their wetlands for food, spawning grounds, and nurseries for their young. Many river and lake fish species depend on inland freshwater lakes and wetlands.
25. Notwithstanding their immense value, their nation's wetlands are being destroyed at an alarming rate. Over 40 percent of the nation's original wetlands are gone, and in some states the loss has been much greater.
The Wetlands of Coastal__________________
26. __________________Peninsula lies between __________________on the north and the __________________River on the south. It is bordered on the east by the__________________ and __________________Sounds and on the west by the __________________Scarp, a low line of cliffs which extends in a southwesterly direction through western __________________County and central County. The peninsula includes the largest continuous area of wetlands in__________________ and one of the largest in the United States. See Exhibit 2.
27. Much of the peninsula's natural habitat is thick evergreen shrub bogs called "pocosins," the __________________Indian term for "swamp-on-a-hill," which typically have highly developed organic or peat soils. Such pocosins comprise more than 50 percent of __________________'s valuable fresh water wetlands, with by far the greatest proportion of these wetlands being found on the__________________ Peninsula.
28. Although several theories have been proposed to explain the origin of pocosins, scientists agree that peat forms only in a perenially wet environment. Peat accumulation on the lower coastal plain of eastern__________________ is believed by scientists to have begun some 10,000 years ago.
29. In 1962, natural pocosins covered approximately 2,243,550 acres of__________________ , representing nearly 70 percent of the entire nation's pocosins. By 1979, as a result of forestry and agricultural development, only approximately 695,000 acres remained undisturbed (approximately 31 percent of the 1960 pocosin area).
30. The vast __________________estuarine system, the largest of any single __________________Coast state, occupies more than 2.3 million acres, over 90 percent of which is covered by water. In 1978, __________________'s commercial and recreational fishing industry contributed more than $235 million to the coastal economy, and employed over 23,000 persons. Estuarine-dependent species, such as Atlantic croaker, menhaden, penaeid shrimp, blue crab, and oysters accounted for more than 90 percent of the commercial landings from 1974 to 1978. Without various life-supporting conditions supplied by the wetlands, including a delicate balance between fresh and salt water, these species would not be available for commercial or sports fishing.
31. Pocosin wetlands, which are a unique type of fresh water wetland, serve the following vital functions:
(a) Pocosins provide abundant water retention capacity and act as storm buffers by greatly reducing flood peaks and by preventing the rapid influx of fresh water and excess nutrients into saline estuarine areas, which would severely damage the fisheries;
(b) Pocosins absorb mercury and other heavy metals from the atmosphere and render them insoluble, thus removing heavy metals from potential concentration within the food chain;
(c) Pocosins provide a natural sink for carbon storage, holding a significant portion of the world's carbon in delicate balance;
(d) Pocosins are the natural habitat of species which have always been restricted to pocosins and are also refuges for native species which once ranged widely but are now confined to pocosins because they are among the last habitats to be destroyed by human activity;
(e) Pocosins are extremely valuable as habitat for a variety of game birds and mammals, furbearers, and fish in the coastal plain, and provide the last stronghold for the black bear in coastal __________________.
APPLICABLE LAW
The Clean Water Act (CWA)
32. The CWA is a federal statute that seeks to protect wetlands and other waters of the United States. The primary objective of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C.A. § 1251(a).
33. One of six national goals established to achieve this objective is the attainment of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water. 33 U.S.C.A. § 1251(a)(2).
34. To achieve its objective and goals, the CWA prohibits the discharge of any pollutant into waters of the United States, including wetlands, except in accordance with standards promulgated and permits issued under the CWA. 33 U.S.C.A. § 1311(a).
35. Section 404, 33 U.S.C.A. § 1344, and Section 309 of the CWA, 33 U.S.C.A. § 1319, as implemented by regulations at 33 C.F.R. Parts 320 to 330 (Corps defendants' regulations) and 40 C.F.R. Part 230 (EPA Guidelines) provide Corps and EPA defendants with the responsibility of regulating the discharge of dredged or fill material into waters of the United States and further provide that the discharge of dredged or fill material into waters may not lawfully take place without a permit from defendants. Such permits are issued by Corps defendants (§ 404(a) and (b), 33 U.S.C.A. § 1344(a) and (b)), in accord with Guidelines issued by EPA (§ 404(b), 33 U.S.C.A. § 1344(b)).
36. Section 309(a)(3), 33 U.S.C.A. § 1219(a)(3), provides that the Administrator of EPA shall issue an order requiring any person in violation of, inter alia, Section 301, 33 U.S.C.A. § 1311, to comply with such section. Section 301(a), 33 U.S.C.A. § 1311(a), prohibits the discharge of dredged or fill material into waters of the United States by any person unless such person has a permit pursuant to Section 404, 33 U.S.C.A. § 1344. The Administrator of EPA is charged with overall responsibility for enforcing the CWA, including § 404, and is the final authority for defining the jurisdictional reach of "waters of the United States."
37. Waters of the United States include wetlands. The definition of wetlands in Corps and EPA defendants' regulations, which has been in effect since at least 1977, is as follows:
The term "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.
General Permits
38. Under Section 404, the Secretary of the Army is authorized to issue both individual permits and general permits. Section 404(e) allows the issuance of general permits (on a state, regional, or nationwide basis) for any category of activities involving the discharge of dredged or fill material only if the Secretary determines the activities are similar in nature and will cause only minimal individual and cumulative adverse environmental effects. 33 U.S.C.A. § 1344(e)(1). As with individual permits, the issuance of general permits is subject to notice and opportunity for public hearing, and the permits must be based on the EPA Guidelines. id.
39. The EPA Guidelines specify, inter alia, that dredged or fill material must not be discharged into waters of the United States unless the permitting authority determines that the discharge will have only minimal adverse effects on water quality and the aquatic environment. 40 C.F.R. § 230.7(a).
40. The EPA Guidelines also prohibit, among other things, the discharge of dredged or fill material which will cause or contribute to significant degradation of the waters of the United States. Effects contributing to significant degradation considered individually or collectively include but are not limited to:
(a) Significantly adverse effects of the discharge of pollutants on aquatic ecosystem diversity, productivity, and stability, such as loss of fish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients, purify water, or reduce wave energy; and
(b) Significantly adverse effects of discharge of pollutants on recreational, aesthetic, and economic values. 40 C.F.R. § 230.10(c).
41. Two of 27 general permits which are currently in effect and which apply nationwide are as follows:
(a) 33 C.F.R. § 330.4(a)(1), authorizing discharges from any activity into non-tidal rivers, streams and their lakes and impoundments, including adjacent wetlands, that are located above the headwaters (nationwide "Headwaters" general permit);
(b) 33 C.F.R. § 330.4(a)(2), authorizing discharges from any activity into other non-tidal waters that are not part of a surface tributary system (nationwide "Isolated Waters" general permit).
Together the nationwide "Headwaters" and "Isolated Waters" general permits cover vast geographic areas and authorize a substantial share of the approximately 90,000 annual discharge activities subject to the 27 nationwide general permits. These two permits allow the discharge of dredged or fill material into millions of acres of waters and wetlands that are of vital importance to fish and wildlife resources to go unreported and unmitigated.
BACKGROUND ACTIONS INVOLVING WETLANDS ON THE__________________ PENINSULA
42. In approximately __________________, __________________began acquiring acreage on the__________________ Peninsula which by__________________ totaled some __________________acres in__________________ and __________________Counties, __________________ , in the name of __________________Farms headquartered in __________________.
__________________Tract-Tract I (Exhibit 1)
43. __________________ , headquartered in__________________ , is engaged, with __________________Farms, in a venture to convert __________________dry tons of peat located on approximately __________________acres of __________________property to a synthetic fuel, methanol, which it hopes to sell in the chemical and automotive fuel markets. An expansion strategy involving construction of an initial methanol production plant followed by staged expansion as the markets grow is central to commercial viability. The areas of deep organic soils (peat deposits) located on__________________ acreage which may eventually be mined in the project are shown in Exhibit 1 to this Complaint.
44. PMA is currently engaged in dredge and fill activities for the purpose of preparing wetlands in__________________ and __________________counties, __________________, for the onsite construction of a peat-to-methanol plant and for other purposes associated with mining peat from the wetlands.
45. In__________________ , the__________________ District of the Corps informed an attorney for __________________that the Corps was aware of certain peat mining activities on__________________ land in the area lying generally southwest of Lake , __________________ , __________________and indicated that these activities "could impact on the vast wetlands in that region."
46. On __________________, __________________applied for a mining permit from the state of __________________to conduct peat mining operations. The application indicated that approximately __________________acres of land in __________________and__________________ Counties would be affected by the Farm's mining activities. See Exhibit 1.
47. Subsequently, officials of Corps defendants' __________________District made an onsite inspection of the__________________ 's peat harvesting operations:
The results of the tour of the proposed mining areas were a consensus that vegetation typically found in a bog or pocosin was prevalent and dominant throughout the majority of the mining area but that this vegetation did not appear to be a sufficient indicator of wetlands. … Primarily this determination was reached due to the low water table in the area and relatively dry nature of the upper layers of the peat soils. … This determination that the area is a non-404 wetland carries one stipulation—that the site should be revisited during the late winter or early spring after a significant rainfall to determine then if the soils were saturated to the point of possibly reclassifying the area.
48. On information and belief, no subsequent site visit was made during late winter or early spring for the purpose of verifying the determination that the area was not wetlands, as defined in ¶37 above, under the Corps defendants' jurisdiction.
49. Of approximately __________________acres of __________________holdings lying generally south and east of Lake __________________ (Tract I, Exhibit 1), Corps defendants determined that approximately 40,000 acres were not "waters of the United States" as defined in Corps administrative regulations and thus were not subject to permits under Section 404 of Clean Water Act.
50. These lands in the__________________ Tract are wetlands (Tract I, Exhibit 1).
51. Potentially severe environmental impacts of PMA activities on First Colony Tract I wetlands include:
(a) Impairment of those vital functions performed by wetlands which are more particularly described in ¶¶22–25 and 30–31 above;
(b) The release of__________________ gallons of wastewater from the peat-to-methanol plant per day; the release of an additional__________________ gallons of water per day for__________________ years during construction of the plant; and an additional__________________ gallons of water per day for__________________ years during construction of the plant; and an additional __________________gallons of water released per day for site preparation;
(c) Air quality impacts from both the dust created during mining operations and emissions from the plant;
(d) tons of solid waste produced each day by plant operations, some percentage of which is likely to be hazardous; and
(e) Mercury levels in waters on the tract which drain into the __________________River, and hence into__________________ Sound, far in excess of the state of __________________'s health-based standard for acceptable levels of mercury.
__________________Farms Tract-Tract II (Exhibit I)
52. __________________Farms, which purchased thousands of acres of __________________Peninsula in__________________ and __________________counties, __________________ , from __________________Farms, is a joint venture of __________________, owner of __________________Farms, and__________________ Insurance Company. __________________ , President of __________________Farms, is also the Managing Agent of __________________Farms.
53. On__________________ , __________________Farms applied to the Corps' __________________District, for a Section 404 permit under the Clean Water Act to clear and drain areas for agricultural use on __________________acres in __________________County.
54. Corps defendants determined that if the discharge of dredged and fill material were permitted on these wetlands, it would be a "major federal action having a significant effect of the quality of the human environment" and thus the application was subject to the requirements of the National Environmental Policy Act and would require the preparation of an environmental impact statement.
55. The__________________ Farms application for a § 404 permit and the environmental impact statement process is currently pending.
56. During the period of __________________to __________________, with the knowledge and acquiescence of Corps defendants, __________________Farms installed plugs and pumps in drainage ditches which altered the existing flow of water within an area of the__________________ acres of __________________Farms that was the subject of the individual § 404 permit application and the environmental impact statement process. This area—__________________ Lake Creek Basin and __________________Lake Creek Basin—is comprised of approximately__________________ acres of wetlands and is referred to as Tract II (Exhibit 1).
57. The actions described in ¶56 above, constitute the discharge of dredged or fill material in waters of the United States, and had as their purpose, bringing the waters into a use to which they were not previously subject. These activities were accomplished without a permit under § 404 of the CWA.
58. As a result of the unpermitted discharge of dredged and fill materials described in ¶56, Corps defendants condoned the uprooting of vegetation and other discharges of dredged and fill material on Tract II pursuant to the nationwide "Headwaters" general permit.
59. Tract II is composed of wetlands adjacent to tidal rivers, streams or creeks.
60a. The Corps defendants did not determine that the discharge of dredged and fill material on Tract II would have a minimal adverse effect, either separately or cumulatively, on water quality or the aquatic environment. Indeed, the Corps defendants had previously determined that a permit to discharge dredged and fill material in these wetlands, if granted, would constitute a "major federal action having a significant effect on the quality of the human environment." See ¶54 above.
60b. __________________Farms, Inc. is engaged in the unpermitted discharge of dredged or fill material on wetlands comprising Tract II (Exhibit 1).
Additional Use of General Permits and other Corps Actions to Limit the Jurisdiction of the CWA
61. At some time after the permit application to convert approximately__________________ acres in __________________County, described in ¶53, Corps defendants made onsite visits to other of __________________Farms holdings in __________________County that resulted in determinations that various tracts of wetlands encompassing some __________________acres were not subject to individual permit but could be converted pursuant to the nationwide "Headwaters" general permit. Corps defendants themselves have described at least one of these determinations as "lenient."
62. Corps defendants' abandonment of their duties under law was well summarized in a Corps letter to__________________ (see ¶52) of February 26, 1982:
The prevailing uncertainty over the jurisdictional extent of the law is perhaps one of our own making because of our seeking, through nationwide permits and other means, a justification for limiting the jurisdiction of the Clean Water Act to some boundary less than the full breadth of the wetlands found in the term "all waters of the United States." Thus, this uncertainty stems from our effort to reduce the regulatory requirements on, and accommodate the interests of, land developers such as__________________ and __________________ [emphasis in original].
63. One of the "other means" that the Corps defendants have used to "limit[] the jurisdiction of the Clean Water Act" and to "reduce the regulatory requirements on, and accommodate the interests of, land developers such as__________________ and__________________ " is described in ¶¶64 to 66, below.
64. In the spring or summer of 1980, Corps defendants discovered that __________________Farms was conducting dredge and fill activities in wetland acreage in__________________ County, southwest of __________________, and in the " __________________" area of__________________ County, north of__________________ Lake, without a permit under § 404 of the CWA.
65. Corps defendants agreed to accept after-the-fact permit applications for these two parcels and agreed to process the permit applications in an "abbreviated" and "expedited" manner. In the words of Corps defendants:
Both areas involved violations of federal law subject to court action, substantial fines, and even restoration of the areas involved. Rather than resort to these measures … we agreed to accept and process permit applications for approximately 1,400 acres of land in the __________________County tracts and 1,600 acres in the __________________tract [of __________________County]. We also agreed to expedite this proceeding including the abbreviation of many steps required by law and regulations.
66. Corps defendants made the decision to dispense with the requirement of an environmental impact statement for these two tracts, despite having found that "[t]he activities of the farms in the area may have very significant impacts on water quality and commercial fisheries in the area. …"
Exhaustion
67. On May 25, 1983, representatives of the plaintiffs gave notice to defendants__________________ and __________________, with copies to, inter alia, __________________, Attorney General of the United States; and defendant __________________; to __________________, President, __________________ , an equity partner in __________________; and to__________________ , President, __________________Farms, Inc. and Managing Agent of Farms, Inc. pursuant to Section 505 of the Clean Water Act, 33 U.S.C.A. § 1365, of their intention to bring suit challenging their refusal to acknowledge their duty properly to regulate the discharge of dredged and fill material on the__________________ Peninsula.
__________________Colony Farms-Tract I
COUNT I. (refusal to regulate peat mining project)
68. Plaintiffs repeat and incorporate by reference the allegations of paragraphs 1 through 66 above, with specific reference to paragraphs 4(a) and 42–51.
Clean Water Act Violations
69 (a) Most, if not all, of the land in the __________________Tract, Tract I, is wetlands, as defined in EPA and Corps of Engineers regulations at 40 C.F.R. § 230.3(t) and 33 C.F.R. § 323.2(c).
(b) The ongoing activities of __________________and __________________constitute the discharge of dredged and fill materials in waters of the United States, as defined in Corps defendants' regulations at 33 C.F.R. § 323.2(a), (i) and (j).
(c) Corps defendants have abandoned their mandatory duty to regulate these dredge and fill activities as directed by § 404, specifically, § 404(a), (b) and (f)(2), 33 U.S.C.A. § 1344(a), (b), and (f)(2), which provide that any such discharge shall be required to have a permit (§ 404(f)(2)), and which entrusts the issuance of such permits (§ 404(a)) and the specification of a disposal site for each such permit (§ 404(b)) to the Secretary of the Army.
(d) Corps defendants have additionally abandoned their duty to prevent the unnecessary alteration or destruction of these vital wetlands, in violation of their own regulations (33 C.F.R. § 320.4(b)(1) and (2)), and have failed to evaluate the cumulative effect of numerous piecemeal alterations of these wetlands which could result in a major impairment of wetland resources, in violation of 33 C.F.R. § 320.4(b)(3) (Corps Regulations implementing § 404).
70. EPA defendants have failed their duties to:
(a) exercise their responsibilities under Section 404 of the Clean Water Act so as to prevent the Corps violations described above;
(b) prohibit the discharge of pollutants into waters of the United States, which discharge by any person is unlawful under § 301(a), 33 U.S.C.A. § 1311(a), by ignoring their duty either to "issue an order requiring such person to comply with" § 301 by obtaining a permit under § 404, or to "bring a civil action," in violation of § 309(a)(3), 33 U.S.C.A. § 1319(a)(3).
NEPA Violations
71. Corps defendants have violated Section 102(2) of the National Environmental Policy Act (NEPA) and its implementing regulations promulgated by the Council on Environmental Quality (CEQ), and their own NEPA Regulations by failing to prepare an Environmental Assessment and an Environmental Impact Statement on the ongoing and proposed alteration and destruction of these wetlands, in violation of 42 U.S.C.A. § 4332(2) (NEPA); 40 C.F.R. Parts 1500 to 1508 (CEQ NEPA Regulations), and 33 C.F.R. Part 230, Appendix B.
__________________Farms-Tract II
COUNT II. (abuse of the individual permit process, NEPA process, general permits, and other means to limit the jurisdiction of the CWA)
72. Plaintiffs repeat and incorporate by reference the allegations contained in paragraphs 1 through 66 above, with specific reference to paragraphs 4(b), 5, and 52–66, which describe, inter alia, Corps defendants' acquiescence in landowners' modifications of existing hydrological conditions on Tract II for the purpose of qualifying for general permits; their subversion of the individual permit and NEPA process; their "lenient" determination of general permit areas; and other efforts to accommodate the interests of corporate landowners.
Clean Water Act Violations
73. Corps defendants, by these actions, have:
(a) abandoned their mandatory duty to enforce Section 404 of the Clean Water Act, and specifically, § 404(a), (b), and (f)(2) thereof (33 U.S.C.A. § 1344(a), (b) and (f)(2)), which provide that any discharge shall be required to have a properly issued permit (§ 404(F)(2)), and which entrusts the issuance of such permits (§ 404(a)) and the specification of a disposal site for each permit (§ 404(b)) to the Secretary of the Army;
(b) violated Section 404(e)(1) of the Clean Water Act, 33 U.S.C.A. § 1344(e)(1), and the EPA Guidelines at 40 C.F.R. § 230.7, which provide that general permits may only authorize activities determined to cause only minimal adverse environmental effects when performed separately, and to have only minimal cumulative adverse effect on the environment.
(c) violated their own regulations at 33 C.F.R. § 320.4 (1981) and (1983) specifying wetlands as vital areas that constitute a productive and valuable public resource and whose alteration or destruction is contrary to the public interest; at 33 C.F.R. § 320.4 (1981) and (1983); and at 33 C.F.R. § 325.2(a)(6) (1981) and (1983) (setting out the steps that must be taken before any dredged or fill activities are allowed in an area under consideration for an individual permit); at 33 C.F.R. § 326.2 (1981) (1983) (setting out a mandatory duty to issue an order prohibiting unauthorized activity); and at 33 C.F.R. § 323.42(a) (1981) and § 330.4(a) (1983) ("Headwaters" general permit applies only to non-tidal waters.)
74a. EPA defendants abandoned their mandatory duty to prohibit the discharge of pollutants into waters of the United States, by failing either to "issue an order requiring such person to comply" with § 301 by obtaining a lawful permit under § 404, or to "bring a civil action," in violation of § 309(a)(3), 33 U.S.C.A. § 1319(a)(3).
74b. Defendant __________________Farms, Inc. is engaged in the unpermitted discharge of dredged and fill material into waters of the United States in violation of Section 301(a) of the Clean Water Act, 33 U.S.C.A. § 1311(a).
NEPA Violations
75. Corps defendants' actions were taken in violation of NEPA and:
(a) their own NEPA regulations at 33 C.F.R. § 230.22 (Policy and Procedures for Implementing NEPA) which limit Corps action during the NEPA review process and refer to those limitations contained in 33 C.F.R. § 230.17; and
(b) in violation of the Council on Environmental Quality's Regulations implementing NEPA at 40 C.F.R. § 1506.1, prohibiting any action concerning a proposal which would have an adverse environmental impact or limit the choice of reasonable alternatives until an agency issues a record of decision under 40 C.F.R. § 1505.2.
Respecting'>Prayer for Relief
WHEREFORE, Plaintiffs respectfully request this Court to declare that:
Respecting__________________ Tract I
(a) the areas owned by __________________Farms lying generally south and east of Lake (__________________Tract), which Corps defendants previously inspected and determined were not in their jurisdiction and on which activities associated with peat mining have occurred, are occurring and are proposed, are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions and are therefore wetlands and part of the waters of the United States subject to regulation under the Clean Water Act, 33 U.S.C.A. §§ 1251 et seq.
(b) __________________Farms and__________________ have engaged and are engaged in the unpermitted discharge of dredged and fill material, including but not limited to ditching, removing vegetation, milling and sloping the soil, extracting and moving wet peat, and adding fill material for the primary purpose of replacing waters of the United States with dry land as defined in 33 C.F.R. § 323.2(k), (l), (m), and (n) (1981); 33 C.F.R. § 323.2(i), (j), (k), and (l) (1983), and such activities constitute the discharge of pollutants into waters of the United States under Section 301 of the Clean Water Act, 33 U.S.C.A. § 1311, which defendants are refusing to regulate;
(c) these unpermitted discharges of dredged and fill material in waters of the United States, which defendants refuse to regulate, are incidental to conversion of wetlands to another use to which they previously had not been subject where the flow and circulation of waters may be impaired and the reach of such waters reduced, in violation of 33 U.S.C.A. § 1344(f)(2);
(d) Corps defendants have failed and are failing to fulfill their mandatory duty under 33 U.S.C.A. § 1344(a), (b) and (f)(2) to designate these wetlands as part of the waters of the United States and to regulate the discharge of dredged and fill material occurring and proposed to occur thereon;
(e) Corps defendants have failed and are failing to comply with the National Environmental Policy Act and its implementing regulations and to prepare an environmental assessment and an environmental impact statement with respect to the ongoing and proposed peat mining project on these wetlands;
(f) EPA defendants have failed and are failing to exercise their mandatory duty under 33 U.S.C.A. § 1319(a)(3) to issue an order or file a civil action to enjoin the discharge of pollutants into these wetlands without a permit issued pursuant to 33 U.S.C.A. § 1344;
(g) EPA defendants have violated and are violating 33 U.S.C.A. § 1344(c) by their failure to deny or restrict the use of these wetlands as a disposal site and to determine that the discharge of dredged or fill materials will have an unacceptable adverse effect on fishery areas, including spawning areas, wildlife or recreation areas;
Respecting __________________Farms Tract II
(h)(1) __________________Farms, Inc. has and is engaged in the unpermitted discharge of dredged and fill material into waters of the United States in violation of Section 301(a) of the Clean Water Act, 33 U.S.C.A. § 1311(a);
(h)(2) Corps defendants, by participating and acquiescing in the unpermitted discharge of dredged and fill material by __________________Farms affecting approximately __________________acres (Tract II) within a __________________acre area of wetlands in__________________ County, , currently under consideration for an individual permit, and, subsequent to such activities, by approving the uprooting of vegetation and other dredge and fill activities and the alteration of these wetlands pursuant to general permit prior to the completion of the individual permit and NEPA process, violated 33 U.S.C.A. § 1344(a), (b) and (f)(2); 33 C.F.R. § 325.2(a)(6) (1981) (1983); 33 C.F.R. §§ 230.17 and 230.22; Section 102(2)(C) National Environmental Policy Act, 42 U.S.C.A. § 4332(2)(C); and CEQ NEPA Regulations at 40 C.F.R. § 1506.1(a).
(i) the EPA defendants' participation and acquiescence in the actions of Corps defendants set out in (h) above, and their continued failure to take enforcement action violates 33 U.S.C.A. § 1319(a)(3) which directs the Administrator to "issue an order" or "file a civil action" to prevent the discharge of pollutants into the waters of the United States under such circumstances;
(j) the Corps defendants abuse of the nationwide "Headwaters" general permit and other actions taken to limit the jurisdiction of the CWA and reduce the regulatory requirements on corporate land developers, violates § 404(a), (b)(1), (e)(1), and (f)(2) of the Clean Water Act 33 U.S.C.A. § 1344(a), (b)(1), (e)(1) and (f)(2); the EPA Guidelines, 40 C.F.R. Part 230; § 102(2)(C) of NEPA, 42 U.S.C.A. § 4332(2)(C); and its implementing CEQ regulations, 40 C.F.R. Parts 1500 to 1508; and Corps NEPA regulations, 33 C.F.R. Part 230.
(k) plaintiffs, individually and as groups, will suffer immediate and irreparable harm as a direct result of defendants' failure properly to enforce the mandates of the Clean Water Act and the National Environmental Policy Act, and this harm will continue unless enjoined by this Court.
Plaintiffs additionally request this Court to issue an order preliminary and permanently:
(a) enjoining Corps and EPA defendants forthwith to issue an order prohibiting unpermitted dredge and fill activities associated with the preparation of wetlands in__________________ , __________________ , or __________________counties, __________________ for peat mining (Tract I); enjoining defendant __________________from conducting any activities which constitute the discharge of dredged or fill material into waters of the United States pending completion of the relief prayed for in paragraph (b), below;
(b) enjoining Corps and EPA defendants forthwith to determine the precise delineation of the wetlands that have been, are being and are proposed to be dredged and filled in conjunction with the __________________Farms/__________________ project to mine peat, and forthwith to report to the Court and plaintiffs their findings; and further directing defendants to regulate such areas in accordance with the Clean Water Act, and the regulations promulgated pursuant thereto, and the National Environmental Policy Act and its implementing regulations, including in such regulation the consideration of the cumulative impact of past, present and proposed dredge and fill activities upon the interconnected wetland resources of the __________________Peninsula;
(c) enjoining Corps and EPA defendants forthwith to issue an order prohibiting any further discharge of dredged and fill material on the approximately __________________acre tract within the acre __________________Farms tract on __________________County currently under consideration for an individual permit under § 404 (Tract II) and enjoining __________________Farms from conducting any activities which constitute the discharge of dredged or fill material into the wetlands comprising Tract II;
(d) enjoining the Corps defendants to require the restoration of all wetlands found by this Court to have been dredged and filled in violation of law to their original, natural state before the illegal activities occurred thereon; enjoining __________________to restore all wetlands found by this Court to have been dredged by it or its agents in violation of law to their original, natural state before illegal activities occurred thereon; and enjoining __________________Farms, Inc. to restore all wetlands found by this Court to have been dredged or filled by it or its agents in violation of law to their original, natural state before the illegal activities occurred thereon;
(e) such additional relief as this Court deems necessary and proper.
Plaintiffs further request this Court to award plaintiffs all costs and expenses of this litigation, including attorneys fees and expert witness fees, pursuant to 33 U.S.C.A. § 1365(d).



Respectfully submitted,

___________________________

Dated: __________________ 







CWA/CIRCLA DISCOVERY AIDS



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