The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff United States of America ("Plaintiff" or "the Government") commenced this action on January 15, 2009, and alleges that Defendant Acquest Transit LLC ("Defendant" or "Acquest") violated sections 301 and 309(d) of the Clean Water Act ("CWA") when it engaged in various ditching, earthmoving and fill activities on tax parcel 16.00-5-23 ("the Property"), which is approximately 96.6 acres in size and located in the Town of Amherst, New York.
Presently before the Court is the Government's motion, filed on March 4, 2009, to enjoin Acquest from placing additional fill or performing additional earthmoving work at the Property during the pendency of this action. Briefing on the preliminary injunction motion was complete on May 8, 2009.*fn1 The Court held a status conference on May 11, 2009, to clarify the parties' positions on the scope of issues to be addressed and the necessity for a hearing. After review of the memoranda, supporting documents and counsels' positions, the Court determined that a hearing is unnecessary. For the reasons stated below, the Government's motion for a preliminary injunction is granted.
A. Jurisdiction and Standard of Review
The purpose of the CWA is to restore and maintain the integrity of the Nation's waters. 33 U.S.C. § 1251. The CWA expressly authorizes district courts to grant injunctive relief to enforce its provisions. Id. §§ 1251 and 1319(b).
"[T]he function of a court in deciding whether to issue an injunction authorized by a statute of the United States to enforce and implement Congressional policy is a different one from that of the court when weighing claims of two private litigants." United States v. Diapulse Corp. of America, 457 F.2d 25, 27 (2d Cir. 1972). When the movant is the United States, the government need only show that a defendant has violated a federal statute and that there is some reasonable likelihood that the violation may recur. United States v. Blue Ribbon Smoked Fish, Inc., 179 F. Supp. 2d 30, 50 (E.D.N.Y. 2001) (citations omitted). Where the government seeks to enforce a statute designed to protect the public interest, it may obtain injunctive relief without a showing of irreparable harm. Diapulse, 457 F.2d at 27-28; New York v. Operation Rescue Nat'l, 99-CV-209A, 2000 U.S. Dist. LEXIS 20059, at *103 n.33 (W.D.N.Y. July 26, 2000). The statute's enactment constitutes Congress's "implied finding that violations will harm the public and ought, if necessary, be restrained." Diapulse, 457 F.2d at 28 (citing United States v. City and County of San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050 (1940)).
A defendant cannot defeat such a motion by arguing that the injunction is impermissible because it will have a negative financial impact or put him out of business. The defendant "can have no vested interest in a business activity found to be illegal." United States v. Ellis Research Laboratories, Inc., 300 F.2d 550, 554 (7th Cir. 1962) (citing United States v. Walsh, 331 U.S. 432, 67 S.Ct. 1283, 91 L.Ed. 1585 (1947)).
B. The Violation of a Federal Statute
1. The Parties' Respective Arguments
The United States contends that the Property's entire 96.6 acres constitute wetlands or surface waters that are "waters of the United States." The Government further asserts that since at least April 2007, Acquest and/or its agents have used earthmoving equipment to remove vegetation, construct a road, parking area, and retail building site, and deposit fill and dredged materials over certain wetland acreage. Acquest violated the CWA, the Government urges, when it engaged in these activities without acquiring the requisite permit.
Acquest does not oppose the Government's motion on the ground that the Property is not a wetland,*fn2 or on the ground that it did not engage in earthmoving and fill activities on the Property. Rather, it urges that the Property falls within an exemption to the CWA's provisions because it is and always has been farm land, and all the activities the Government objects to are normal farming activities. According to Acquest, because the CWA is inapplicable here, the Government cannot demonstrate that Acquest violated the statute, and its request for preliminary injunctive relief must be denied.
The relevant statutory provisions, and the findings of fact and conclusions of law with respect to the parties arguments, are set forth below.
As noted above, the CWA was enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Section 301(a) of the CWA prohibits "the discharge of any pollutant by any person," unless the discharge is authorized by a permit. Id. § 1311(a). "Discharge of any pollutant" includes "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12). The term "pollutant" is defined broadly to include traditional contaminants and also "dredged spoil, . . . rock, sand, [and] cellar dirt." Id. § 1362(6). A "point source" includes "any discernible, confined and discrete conveyance." Id. § 1362(14). And, finally, "navigable waters" is defined as encompassing all "waters of the United States, including the territorial seas." Id. § 1362(7).
The U.S. Army Corps of Engineers ("COE") has issued regulations interpreting "waters of the United States"-i.e., navigable waters-to include waters subject to use in interstate commerce, 33 C.F.R. § 328.3(1); "[a]ll interstate waters including interstate wetlands," § 328.3(a)(2); "[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), . . . [or] wetlands, . . . the use, degradation or destruction of which could affect interstate or foreign commerce," § 328.3(a)(3); "[t]ributaries of [such] waters," § 328.3(a)(5); and "[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands)," § 328.3(a)(7). "Wetlands" are defined as "areas that are inundated 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." Id. § 328.3(b). The regulation defines "adjacent" wetlands as those "bordering, contiguous [to], or neighboring" waters of the United States. Id. § 328.3(c).
Section 404 of the CWA authorizes the Secretary of the Army, acting through the COE, to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." Id. §§ 1344(a), (d); see also, 33 C.F.R. § 323.1. The COE and Environmental Protection Agency ("EPA") have promulgated regulations governing the COE's processing of such permits. 33 C.F.R. pts. 320-325; 40 C.F.R. pt. 230.
There are, however, a limited number of circumstances in which the discharge of dredged or fill materials is not prohibited by Section 301(a), so that no permit is required. Among them is where the discharge is "from normal farming . . . activities such as plowing, seeding, cultivating, minor drainage, [or] harvesting for the production of food, fiber, or forest products . . . ." 33 U.S.C. § 1344(f)(1)(A). The COE and EPA have interpreted the farming exemption as limited to activities that are "part of an established (i.e., on-going) farming . . . operation." The exemption is not available for "activities which bring an area into farming . . . use." Furthermore, "[a]n operation ceases to be established when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations." 33 C.F.R. § 323.4(a)(1)(ii); 40 C.F.R. § 232.3(c)(1(ii)(A), (B).
Even where Section 404(f)(1)(A) exempts a discharge from the permit requirement, the discharge may be "recaptured" under Section 404(f)(2), which states that:
Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). The governing regulation provides that "[a] conversion of a section 404 wetland to a non-wetland is a change in use of an area of waters of the United States." 33 C.F.R. § 323.4(c).
3. The Government's Burden of Demonstrating a Violation
To establish the existence of a violation, the United States must demonstrate that
(1) Acquest is a person within the meaning of the CWA, (2) Acquest's activities constituted a discharge of pollutants from a point source, (3) the site was a wetland at the time of the discharge, (4) the site constituted waters of the United States at the time of the discharge, and (5) the activities at the site were ...