2003 U.S. Dist. LEXIS 5656, *
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UNITED STATES
OF AMERICA, Plaintiff, v. ROBERT L. HUMMEL, ROBERT L. HUMMEL
CONSTRUCTION CO., INC., HDB DEVELOPMENT CORPORATION (a.k.a. HDB JOINT VENTURE and/or HUMMEL-DIOR PARTNERSHIP),
DALE BERGER, and DIOR REALTY, Defendants.
No. 00 C 5184
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2003 U.S. Dist. LEXIS 5656
April 7, 2003, Decided
April 8, 2003, Docketed
DISPOSITION: [*1] Plaintiff's motion for summary judgment granted in part and
denied in part. Defendants' motion for summary judgment denied.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff United States sued defendants, an individual, a construction company, a development
company, and the development company's general partners, alleging that they violated the Clean Water Act, 33 U.S.C.S. § 1251 et seq., by discharging pollutants into a federally protected wetland without prior authorization. The parties filed cross motions
for summary judgment.
OVERVIEW: The wetland at issue fell within the Army Corps of Engineers' (Corps') jurisdiction as
it was adjacent to a tributary of a traditionally navigable river. The sewer installation caused a discharge of pollutants
because digging trenches through the wetland, sidecasting the resulting dirt and vegetation, and then re-depositing the dredged
material into the trenches to cover the new sewer pipes constituted a discharge of pollutants. The sewer installation was
not authorized by a nationwide permit as the Corps had properly revoked the only applicable nationwide permit. The court rejected
an attempt to pin liability on the county that owned the sewer easement as there was no evidence that it had performed any
part of the sewer installation or hired or paid the construction company to perform the activities. The individual was liable
as he had hired and directed the construction company to perform the installation. The construction company was liable as
it was the actual discharger. Summary judgment was denied as to the development company and its partners, however, given the
conflicting evidence as to their involvement.
OUTCOME: The United States' summary judgment motion was denied with respect to the development company
and its partners, but was otherwise granted. The opposing summary judgment motion was denied.
CORE TERMS: wetland, sewer, pollutant, site, navigable waters, installation, lakes, nationwide, dredged, body
of water, tributary, material fact, trench, river, summary judgment, dirt, adjacent, sewer line, partnership, navigable, installed,
general partners, public notices, redeposit, stream, spoil, point source, authorization, discharged, eliminated
LexisNexis® Headnotes | Hide |
Civil Procedure > Summary Judgment > Opposition > General Overview
Civil Procedure > Summary Judgment > Standards > Appropriateness
Civil Procedure > Summary Judgment > Standards > Genuine Disputes
HN1 | Summary judgment
is proper where the pleading, depositions, answers to interrogatories, and admission on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law. Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable
to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. When presented with
cross-motions for summary judgment, the court considers the motions simultaneously and draws all reasonable inferences in
favor of the party opposing a particular motion. More Like This Headnote |
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Environmental Law > Natural Resources & Public Lands > Wetlands Management
Environmental Law > Water Quality > Clean Water Act > Coverage & Definitions > Navigable Waters
Environmental Law > Water Quality > Clean Water Act > Wetlands
Environmental Law > Natural Resources & Public Lands > Wetlands Management
Environmental Law > Water Quality > Clean Water Act > Coverage & Definitions > Navigable Waters
Civil Procedure > Appeals > Appellate Jurisdiction > State Court Review
Environmental Law > Natural Resources & Public Lands > Wetlands Management
Environmental Law > Natural Resources & Public Lands > Wetlands Management
Environmental Law > Water Quality > Clean Water Act > Coverage & Definitions > Navigable Waters
HN5 | Although the
waters themselves do not need to be actually navigable to come within the definition of "waters of the United States"
for purposes of the Clean Water Act, 33 U.S.C.S. § 1251 et seq., they cannot be isolated intrastate waters with no discernable connection to navigable waters. More Like This Headnote |
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Governments > Courts > Judicial Precedents
HN6 | The United States
District Court for the Northern District of Illinois, Eastern Division, is bound by precedent from the United States Court
of Appeals for the Seventh Circuit; the United States Court of Appeals for the Fifth Circuit has no precedential effect on
that district court. More Like This Headnote |
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Environmental Law > Natural Resources & Public Lands > Wetlands Management
Environmental Law > Water Quality > Clean Water Act > Wetlands
HN7 | The party asserting
the Army Corps of Engineers' jurisdiction over a particular body of water must establish a significant nexus between the
body of water and a navigable water. If the complaining party cannot demonstrate such a connection, then the body of water
cannot be included among those waters protected by the Clean Water Act, 33 U.S.C.S. § 1251 et seq. More Like This Headnote |
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Environmental Law > Water Quality > Clean Water Act > Coverage & Definitions > Discharges
Environmental Law > Water Quality > Clean Water Act > Coverage & Definitions > Pollutants
Environmental Law > Water Quality > Clean Water Act > Discharge Permits > Dredged or Fill Material > General Overview
HN8 | The Clean Water
Act (CWA), 33 U.S.C.S. § 1251 et seq., prohibits the discharge of any pollutant into federally protected waters without a permit from the Army Corps of Engineers
(Corps). 33 U.S.C.S. §§ 1311(a), 1344(a). The statute defines the word "discharge" as any addition of any pollutant to navigable waters from any point source.
33 U.S.C.S. § 1362(12). The term "pollutant" means, inter alia, dredged spoil, biological materials, rock, sand, and cellar dirt. 33 U.S.C.S. § 1362(6). Although the Corps' regulations do not define "dredged spoil," they define "dredged material" as
material that is excavated or dredged from waters of the United States. 33 C.F.R. § 323.2(c). Additionally, the Corps defines "the discharge of dredged material" as any addition of dredged material into,
including any redeposit of dredged material other than incidental fallback within, the waters of the United States. 33 C.F.R. § 323.2(d)(1). In sum, to demonstrate an actionable discharge of pollutants under the CWA, one must demonstrate an (1) addition of (2)
a pollutant (including dredged material, rock and cellar dirt) into protected waters. More Like This Headnote |
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Environmental Law > Water Quality > Clean Water Act > Coverage & Definitions > Point Sources
Environmental Law > Natural Resources & Public Lands > Wetlands Management
Environmental Law > Water Quality > Clean Water Act > Discharge Permits > Dredged or Fill Material > General Overview
Environmental Law > Water Quality > Clean Water Act > Wetlands
HN10 | For purposes
of the Clean Water Act, 33 U.S.C.S. § 1251 et seq., once earth and vegetable matter is removed from the wetland, that material becomes dredged spoil, a statutory pollutant.
It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening
form of dirt and vegetation in an undisturbed state. What important is that once that material is excavated from the wetland,
its redeposit in that same wetland adds a pollutant where none has been before. More Like This Headnote |
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Environmental Law > Water Quality > Clean Water Act > Discharge Permits > General Permits
Environmental Law > Water Quality > Clean Water Act > Discharge Permits > Public Participation
Environmental Law > Water Quality > Clean Water Act > Wetlands
HN11 | The Clean Water
Act (CWA), 33 U.S.C.S. § 1251 et seq., authorizes the Army Corps of Engineers (Corps) to issue nationwide permits for categories of activities involving discharges
that have minimal adverse environmental effects. 33 U.S.C.S. § 1344(e)(1). CWA regulations further provide that the Corps also has the discretion to modify, suspend, or revoke such permits for relevant
factors of the public interest. 33 C.F.R. § 330.5. The regulations set forth specific procedures the Corps must follow before eliminating nationwide procedures which include
public notice, comment periods, public meeting, and published findings supporting the revocation. More Like This Headnote |
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Environmental Law > Water Quality > Clean Water Act > Discharge Permits > General Permits
HN12 | The regulations
granting the Army Corps of Engineers (Corps) discretion to eliminate nationwide permits only require the Corps to issue public
notices, solicit comment, hold public hearings, and publish its findings before revoking nationwide permits. 33 C.F.R. § 330.5. More Like This Headnote |
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Administrative Law > Judicial Review > Standards of Review > Abuse of Discretion
Administrative Law > Judicial Review > Standards of Review > Arbitrary & Capricious Review
Environmental Law > Water Quality > General Overview
HN13 | As the Clean
Water Act, 33 U.S.C.S. § 1251 et seq., does not specify the standard of review for Army Corps of Engineers' decisions, the court looks to the Administrative
Procedure Act (APA) for the appropriate standard. Under the APA, a court cannot overturn a decision of an agency unless the
decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C.S. § 706(2)(a). Moreover, the standard of review is a highly deferential one and the court will not substitute its own judgment for that
of the agency. More Like This Headnote |
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