Friday, December 22, 2006

U.S. v. Costello (Maryland U.S.D.C.)(not approved for publication)

Decided December 20, 2006--Opinion by Judge Richard D. Bennett (not approved for publication)

Action brought by the federal government and State of Maryland for alleged violations of the Clean Water Act, 33 U.S.C. §§1251, et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. §§401, et seq., and Md. Code Ann. Envir. §16-202(a).

Landowner (Costello) was granted emergency permits by Maryland to rebuild an erosion control structure, called a revetment, that had been destroyed by Hurricane Isabel. One condition of the permits was that the new revetment must have the same location and dimensions as the previously existing revetment. Costello retained PCI and Mielke, an engineer employed by PCI, to prepare permit applications and to design and construct the new revetment.

In the process of constructing the revetment during those four months, the defendants used earth-moving equipment to discharge fill material, including rock, dirt, and sand, into Whitehall Creek without a permit. These discharges allegedly created an obstruction to the navigable waters of the United States. They also resulted in the filling of State wetlands without a license.

The U.S. and the State of Maryland filed a Complaint in this Court alleging that defendants violated the Clean Water Act ("CWA"), the Rivers and Harbors Act of 1899 ("RHA"), and the provisions of Maryland's Code concerning permits to fill wetlands ("Maryland Wetlands Statute"), because the new revetment did not comply with the conditions of the emergency permit.

The plaintiffs sought a variety of injunctive relief as well as civil penalties. The injunctive relief sought was to enjoin defendants "from discharging or causing the discharge of dredged or fill material or other pollutants into any waters of the United States except in compliance with the CWA and RHA" and "from placing any unauthorized structures or obstructions or performing any work waterward of the mean high water mark without first having obtained all requisite federal and state permits."

PCI and Mielke filed the a motion to dismiss. They argued that injunctive relief should not be imposed against them and raised two arguments in support of their position. First, they argued that because they have no property rights to the site, they could not carry out any injunctions issued by this Court. Second, they argue that the injunctions would be moot, because "the alleged actions of these Defendants have all been completed, and these Defendants play no role in any current (or potential) alleged 'discharge' of pollutants, dredged or fill material."

  1. The fact that PCI and Mielke do not have property rights in the site does not preclude this Court from issuing injunctive relief against them or any defendant to ensure compliance with environmental statutes.

  2. PCI's and Mielke's mootness argument was rejected because their "allegedly wrongful behavior" is not only "reasonably expected" to occur, but will undoubtedly occur until the structure is removed.

The full opinion is available in PDF.

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