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NOSAW v. Acquest Wehrle

December 12, 2008

NOSAW (NEIGHBORS ORGANIZED TO SAVE AMHERST'S WETLANDS), ET AL., PLAINTIFFS,
v.
ACQUEST WEHRLE, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

Several individual residents of the Town of Amherst, New York, members of an unincorporated citizen watchdog association called "Neighbors Organized to Save Amherst's Wetlands" ("NOSAW"), filed this action for declaratory and injunctive relief and civil monetary penalties pursuant to the citizen suit provisions of the Clean Water Act ("CWA"), 33 U.S.C. § 1365, seeking to enforce the CWA's permit requirements as they apply to the development of an office park on contiguous parcels of property owned by defendant Acquest Wehrle LLC,*fn1 located at 2190 and 2220 Wehrle Drive in Amherst. Plaintiffs have filed a motion (Item 25) for partial summary judgment on liability for the CWA violations alleged in the complaint, and defendants have responded by filing a cross-motion (Item 27) for summary judgment dismissing the complaint.

For the reasons that follow, these motions are denied.

BACKGROUND

The proposed office park development at issue in this action has been the subject of multiple proceedings dating back to the early 1990s involving municipal, state, and federal agencies, including prior and ongoing federal and state court litigation. At the heart of the dispute is the nature and disposition of wetlands situated on the defendants' 25-acre Wehrle Drive property.

As set forth in the complaint, field investigations conducted in July 2002 by the United States Army Corps of Engineers (the "Corps") and the United States Environmental Protection Agency (the "EPA") resulted in the determination that approximately 9.5 acres of wetlands exists on the office park project site (Item 1, ¶ 25). Subsequently, in November 2002 the EPA issued a "Jurisdictional Determination and Special Case Designation for Wetlands and Aquatic Areas at 2220 Wehrle Drive, Amherst, New York," which stated as follows:

EPA has determined that this wetland is subject to jurisdiction under the Clean Water Act (CWA) because it has a surface hydrological connection through a watercourse originating in the wetland, through ditches and a culvert into Ellicott Creek, to the Niagara River, a traditional navigable water. Further, the wetland can be considered to be adjacent to Town Ditch 18 and subject to CWA jurisdiction on this basis as well. Based on these conclusions, EPA has determined that there are approximately 9.5 acres of CWA jurisdictional wetlands on the parcel at 2220 Wehrle Drive. (No. 06-CV-654-JTC, Item 1, Ex. 11, p. 2).*fn2 The Jurisdictional Determination advised that any discharge of dredged or fill material into the wetlands on the project site must be accomplished in accordance with the permit requirements of CWA Section 404(a) (33 U.S.C. § 1344(a)) (id. at p. 3).

In March 2006, after extensive discussions with appropriate agency officials and upon submission of several further site plan revisions, Acquest obtained a "Provisional Department of the Army Permit" to place fill in approximately 2.9 acres of wetlands on the Wehrle Drive property (id. at Ex. 13). As explained in the March 14, 2006 transmittal letter:

The provisional permit is NOT VALID and does not authorize you to do your work. The provisional permit describes the work that will be authorized, and the General and Specific Conditions that will be placed on your final Department of the Army (DA) permit if the State of New York requirements are satisfied as described below. No work is to be performed in the waterway or any wetlands until you have received a validated copy of the DA permit. (Id.). The letter went on to explain that the provisional permit would not become final until the New York State Department of Environmental Conservation ("DEC") issued a water quality certification, or waived that requirement (id.).

In July 2006, the Corps conducted an inspection of the Wehrle Drive property which revealed that Acquest had performed "mechanized landclearing resulting in an unauthorized discharge of fill material and impacts to an area previously determined by the [EPA] to be Federal wetlands regulated under Section 404 of the Clean Water Act." (No. 06-CV-654-JTC, Item 15, Ex. 3, p. 1). The Corps rescinded Acquest's provisional permit, withdrew the permit application, and referred the matter to the EPA for potential enforcement action (id.). Upon inspection of the property in January 2007, EPA reported that at least 7 acres of the site had been completely cleared of all woody and herbaceous vegetation, "including in excess of 3.5 acres of clearing within jurisdictional wetlands." (Id. at Ex. 4, p. 2). As a result, in May 2007, the EPA issued an administrative compliance order to Acquest pursuant to its authority under CWA Section 309(a) (33 U.S.C. § 1319(a)), requiring Acquest (among other things) to cease discharges of dredged or fill material into the wetlands on the Wehrle Drive property, and to restore portions of the wetlands affected by fill activity (id).

Meanwhile, on May 8, 2007, plaintiffs filed the complaint in this action alleging that Acquest's landclearing activity in July 2006, as well as additional construction activity in October 2006, has resulted in discharges of dredged or fill material into the Wehrle Drive wetlands without a valid permit, in violation of the requirements of CWA § 404 and implementing regulations. Plaintiffs also allege that the construction activity at the site has resulted in discharges of stormwater without a valid permit, or in excess of the permit limits, in violation of the requirements of CWA § 402 (as delegated to New York State under its State Pollution Discharge Elimination System ("SPDES") program).

Upon joinder of issue, the court conducted a pretrial conference during which plaintiff's counsel indicated that he intended to file a motion for preliminary injunctive relief. The court subsequently granted several extensions of the time within which to file the motion, but no such motion was ever filed.

Instead, on September 24, 2008, plaintiffs filed a motion for partial summary judgment on the ground that there are no genuine issues of material fact with respect to Acquest's liability under the CWA for discharge of fill material and stormwater into the federally regulated wetlands without valid permits, or in excess of permit limits. In support of the motion, plaintiffs have submitted a 29-page "Memorandum of Law" (Item 25-1) and a "Statement of Undisputed Facts" (Item 25-2). Defendants respond that plaintiff's motion should be denied for failure to comply with the Local Rules of Civil Procedure governing the form and content of motion papers, and for failure to demonstrate that the CWA even applies to the property at issue. Defendants also cross-move for summary judgment dismissing the complaint.

For the reasons that follow, the court denies ...


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