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Clean Water Act (CWA): Agriculture-Related Enforcement Cases Archive for 2011

The following are agriculture-related enforcement cases pertaining to the Clean Water Act.  More Clean Water Act enforcement cases can be found under the Animal Feeding Operations enforcement cases.

The following links are provided for navigation to CWA enforcement cases below by date for 2011:

CWA Enforcement Cases for 2011

December 7, 2011

EPA Notifies Four West Virginia Growers To Obtain Discharge Permits
The U.S. Environmental Protection Agency (EPA) today announced that Agrifos, a former phosphoric acid and phosphate fertilizer producer, has agreed to pay a $1.8 million dollar penalty and conduct an environmental project to resolve alleged violations of the Resource Conservation and Recovery Act (RCRA) and the Clean Air Act. Violations include processing and disposing of hazardous wastewater without a permit and the improper routing of effluent from a scrubber through a cooling tower. The settlement will protect public health and the environment by reducing possible releases of hazardous wastewater into area waterways. Agrifos currently produces sulfuric acid and ammonium sulfate fertilizers.

"EPA is committed to protecting the public from releases of hazardous wastewater at phosphoric acid plants," said Cynthia Giles, assistant administrator for EPA's Office of Enforcement and Compliance Assurance. "Today's settlement will significantly reduce the amount of contaminated runoff flowing from the Agrifos facility into local waterways, including the Houston Ship Channel."

Under the agreement, Agrifos will spend $600,000 to implement a supplemental environmental project. The project involves the construction of a stormwater collection and containment barrier around its fertilizer production unit to eliminate or minimize impact on the environment. The containment structure will contain all spills and leaks from the fertilizer production unit and collect contaminated stormwater runoff from wet weather events for reuse in the production process. Based on the average rainfall at the facility, the containment barrier is expected to capture more than one million gallons of contaminated stormwater annually for reuse.

"When a company fails to control pollution, the EPA will vigorously enforce our environmental laws," said EPA Regional Administrator Al Armendariz. "This case not only brings about penalties but also requires corrective action to prevent reoccurrence that would threaten our state's waterways."

There have been four enforcement actions related to the Agrifos site in the last three years. In September 2010, Agrifos paid a $535,206 civil penalty to EPA for Emergency Planning and Community Right-to-Know (EPCRA), Superfund, and Clean Air Act violations at its facility. In November 2010, a settlement for $1.485 million was reached with Air Products, an adjacent chemical facility, to resolve violations which included the exchange of contaminated waste acid from Air Products to Agrifos. In September 2010, a settlement with ExxonMobil requires ExxonMobil to conduct extensive closure and cleanup work on the phosphogypsum stacks system at the Agrifos facility, which was previously owned by ExxonMobil. ExxonMobil also agreed to pay a $100,000 civil penalty. And, in September of 2008, RCRA and Superfund orders were issued to ExxonMobil and Agrifos to address the release of contaminated wastewater from the gypsum stacks at the Agrifos site into the Houston Ship Channel.

The settlement is part of EPA's enforcement initiative to reduce pollution from mineral processing operations. EPA has focused on ensuring compliance in the phosphoric acid industry because of the high risk of releases of acidic wastewaters at these facilities.

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November 30, 2011

EPA Notifies Four West Virginia Growers To Obtain Discharge Permits
EPA announced today that it has notified four poultry growers in West Virginia to cease discharging pollutants from farms to waterways and obtain the necessary permits that are required by the Clean Water Act.

The Agency believes that some farmers in the Shenandoah Valley and West Virginia could benefit from more information about the federal requirements to reduce polluted stormwater runoff. EPA and national and state poultry industry associations are in discussions on developing a program to educate growers on water quality and compliance issues.

“Based on our experience, educating farmers on the requirements of the Clean Water Act goes a long way in helping them to protect and improve local water quality and increase compliance,” said EPA Regional Administrator Shawn M. Garvin. “We’ve had good results from working closely with integrators and trade associations, making sure farmers know how they can best reduce runoff and meet their regulatory responsibilities.”

EPA issued the orders following inspections this past June of five chicken and turkey operations in West Virginia. The inspections found that four of the five operations were concentrated animal feeding operations (CAFOs) as defined by the Clean Water Act and that they had neither applied for nor obtained the required discharge permits. The fifth grower had already applied for the permit.

Also, at four of the facilities inspected, man-made ditches draining stormwater away from the poultry houses and sheds containing manure and compost allowed pollutants to discharge to waterways during rain events.

EPA’s actions are part of an ongoing initiative to improve water quality in local waterways and the Chesapeake Bay. For more information about the Chesapeake Bay watershed compliance and enforcement strategy visit https://www.epa.gov/compliance/civil/initiatives/chesapeakebay.html.

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November 16, 2011

Farmer-Owned Cooperative To Pay $96,588 Penalty for Failure To Develop Facility Response Plan
Ag Processing Inc (AGP), a farmer-owned cooperative involved in the acquisition, processing and marketing of grain products, has agreed to pay a $96,588 civil penalty to the United States for its failure to develop and implement a Facility Response Plan for its soybean processing facility in Mason City, Iowa.

According to an administrative consent agreement filed by EPA Region 7 in Kansas City, Kan., the Agency inspected the Mason City facility in January 2009. The inspection found that although the facility has a documented storage capacity of more than 1 million gallons of soy oil and/or fuel oil (actually 5.6 million gallons of capacity) it had not submitted a Facility Response Plan to EPA, as required by the federal Clean Water Act. The facility also had not developed or implemented a facility response training program or a drill/exercise program, as required by the regulations.

The Mason City AGP facility is located within 300 feet of a perennial stream, Cheslea Creek, which flows through two small lakes, then into Willow Creek and the Winnebago River. Without a Facility Response Plan, the Mason City facility was not adequately prepared for a worst-case discharge to the nearby waters, including potential negative impacts to wetland habitat areas.

AGP’s settlement includes a schedule of steps that the company must take to submit to EPA a Facility Response Plan for the Mason City facility, and an agreement to conduct a revised evaluation of whether a Facility Response Plan is required for its facility in Emmetsburg, Iowa.

EPA’s civil enforcement action is part of the Agency’s efforts in Region 7 (Iowa, Kansas, Missouri, Nebraska and nine tribal nations) to make certain that owners and operators of the largest oil storage facilities — with capacity of 1 million gallons or more — are prepared to respond to worst-case discharges, accidents and emergencies, and to protect sensitive environments that could be threatened by such incidents.

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September 26, 2011

EPA Orders 13 Chino Dairies To Control Manure Runoff
The U.S. Environmental Protection Agency is ordering 13 Chino area dairies to comply with Clean Water Act requirements to prevent dairy manure waste and other pollutants from reaching local waterways. Among the violations discovered at the dairies subject to EPA’s orders were:

“To protect the Santa Ana River watershed, we’re taking action to ensure these dairies are prepared for the upcoming winter rains, when animal waste could flow from their dairies into nearby creeks and streams,” said Jared Blumenfeld, EPA’s Regional Administrator for the Pacific Southwest. “We will also be evaluating whether monetary penalties are appropriate, pursuant to our authority under the federal Clean Water Act.”

Inspections to evaluate permit compliance at dairies are an ongoing focus of the EPA and the Regional Water Quality Control Board. Between November 2010 and February 2011, Water Board representatives inspected dozens of dairies in the Chino area.

“The Santa Ana Regional Water Quality Control Board welcomes and benefits from its partnership with U.S. EPA in regulating waste discharges from dairies within the Santa Ana Region,” said Kurt Berchtold, Executive Officer of the Santa Ana Regional Water Quality Control Board. “We look forward to continued cooperative activities with the EPA in the future to enforce Clean Water Act requirements at the dairies within our region.”

Through its administrative process, the EPA is ordering the following dairies to immediately comply with their permit requirements issued by the Santa Ana Regional Water Quality Control Board:

The EPA orders are intended to improve the dairies’ environmental performance as quickly as possible by bringing them into compliance with the basic requirements of their permits.

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September 14, 2011

Oregon Dairy CAFO To Pay $30,000 State Fine for Unlawful Water Pollution
John and Darren Volbeda operate Volbeda Dairy Inc., a 350 acre, Concentrated Animal Feeding Operation (CAFO), in Albany, Oregon, under National Pollutant Discharge Elimination System Permit Number 01 issued on October 1, 2003 and administered by the Oregon Department of Agriculture (ODA). ODA has historically conducted inspections of the dairy based on citizen's complaints.

Inspections occurred throughout the months of January and February 2009. ODA inspectors confirmed through observation and analytical analysis that Volbeda Dairy unlawfully discharged pollutants into navigable waters of the United State in violation of the dairy's applicable permit on January 27, 28, 29 and February 4, 12, and 26, 2009.

December 13, 2010 Oregon Department of Justice filed an information charging Volbeda Dairy Inc., with 7 counts of unlawful water pollution in the second degree, an unclassified misdemeanor.

April 11, 2011 Volbeda Dairy pled guilty to 3 counts of unlawful water pollution in the second degree.

April 11, 2011 Volbeda Dairy was sentenced to 36 months probation and ordered to pay a $30,000 state fine. As a condition of probation, Volbeda Dairy must comply with its CAFO NPDES permit.

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August 22, 2011

EPA Issues Compliance Orders to Six Concentrated Animal Feeding Operations in Iowa, Kansas and Nebraska
EPA Region 7 announced today that it has issued administrative compliance orders to six concentrated animal feeding operations (CAFOs) in Iowa, Kansas and Nebraska, directing those operations to correct a range of violations of the federal Clean Water Act.

Region 7’s latest round of CAFO enforcement activity, aimed at encouraging producers’ compliance with the Clean Water Act and the National Pollutant Discharge Elimination System (NPDES) permitting program, involves five beef feedlots, including three in Nebraska, one in Kansas, and one in Iowa; and an egg layer operation in Nebraska.

“The majority of livestock and poultry producers in Region 7 understand the importance of protecting our water resources, and they work hard to ensure their operations comply with state and federal laws,” EPA Regional Administrator Karl Brooks said. “However, when an operation fails to meet its responsibilities, EPA will continue to work closely with our state partner agencies and stakeholders to enforce the Clean Water Act and encourage compliance.”

Stormwater runoff from CAFO production areas such as confinement pens, feedstock storage areas and manure stockpiles, and runoff from land application areas, can cause exceedances of water quality standards, pose risks to human health, threaten aquatic life and its habitat, and impair the use and enjoyment of waterways.

According to the administrative compliance orders issued by EPA Region 7 in Kansas City, Kan.:

M.G. Waldbaum Company, Bloom N Egg Farm, Bloomfield, Neb. - An inspection of the egg layer operation in September 2010 found that it was illegally discharging wastewater from poultry manure stockpiles into a tributary of Little Bazile Creek in Knox County. Sample results indicated high levels of E.coli bacteria and other pollutants discharging into the tributary. The order requires the operation to cease all production area discharges, install runoff controls, and comply with the Clean Water Act. The operation, which has a capacity of 4,448,000 birds, was confining approximately 3.1 million layer hens at the time of the inspection. The operation has applied for an NPDES permit.

A.J. Jones, Callicrate Feeding Company, St. Francis, Kan. - An inspection in February 2011 identified significant NPDES permit violations, including failure to maintain adequate wastewater storage capacity, failure to meet Nutrient Management Plan requirements, failure to conduct operations within areas that are controlled in a manner capable of preventing pollution, and failure to maintain adequate records. The order requires the operation to comply with all terms of the Clean Water Act and its NPDES permit, and to coordinate with the Kansas Department of Health and Environment on its compliance. The order requires the operation to comply with the terms of its Nutrient Management Plan, including sampling and recordkeeping requirements. The feedlot has a permitted capacity of 12,000 cattle and was confining approximately 3,219 cattle at the time of the inspection.

Michael and David Uecker, Dave Uecker Livestock, Norfolk, Neb. - An inspection of the beef feedlot and stream sampling in July 2011 found that the operation was illegally discharging manure, litter and process wastewater into a series of drainage ditches before discharging into an unnamed tributary to the North Fork of the Elkhorn River in Madison County. The operation has a capacity of 900 cattle and was confining approximately 450 cattle at the time of the inspection, classifying it as a medium CAFO. The order requires the operation to apply for an NPDES permit, and construct feedlot waste controls or reduce the number of cattle that it confines below the regulatory threshold.

John Reigle, Reigle Farms, Madison, Neb. - An inspection of the beef feedlot in June 2011 found several NPDES permit violations, including illegal discharges from a holding pond to an unnamed tributary of Tracy Creek in Madison County, failure to timely notify state authorities of the holding pond discharge, failure to maintain adequate wastewater storage capacity in the holding pond, failure to maintain an accurate staff gauge in the holding pond, unauthorized discharges of livestock waste from land application fields, failure to maintain wastewater application records and failure to perform a liquid waste nutrient analysis. The order requires the operation to comply with the Clean Water Act, its NPDES permit and Nutrient Management Plan, and to cease operations in parts of its facility where wastewater cannot be properly managed. The operation has a permitted capacity of 9,000 cattle and was confining approximately 8,600 cattle at the time of the inspection.

Ritter Feedyards, LLC, Beemer, Neb. - An inspection of the NPDES-permitted beef feedlot in April 2011 found the facility was discharging manure, litter and process wastewater into Rock Creek and an unnamed tributary of the Elkhorn River in Cuming County. The order requires the operation to comply with the Clean Water Act and its NPDES permit, and to construct feedlot waste controls. The facility has a permitted capacity of 1,200 cattle and was confining approximately 1,038 cattle at the time of the inspection.

S&S Cattle Company, Council Bluffs, Iowa - An inspection of the beef feedlot in May 2011 found that the operation discharges manure, litter and process wastewater into a series of drainage ditches that flow into an unnamed tributary of Mosquito Creek in Pottawattomie County. The operation has a capacity of 999 cattle and was confining approximately 730 cattle at the time of the inspection, classifying it as a medium CAFO. The order requires the operation to apply for an NPDES permit and construct feedlot waste controls, or reduce the number of cattle it confines below the regulatory threshold.

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June 21, 2011

Oregon Dairy Pays $12,000 for Alleged Animal Waste Discharges
RSC Dairy, LLC has agreed to pay a $12,000 penalty to settle animal waste discharge violations at its dairy located in Tillamook, Oregon.

According to the U.S. Environmental Protection Agency, the violations were noted during an inspection of RSC Dairy operations in January 2010. During that inspection, EPA and Oregon Department of Agriculture field personnel determined that animal waste had been discharged from the dairy into Hall Slough, a tributary to Wilson River which flows into Tillamook Bay.

Samples of the discharges from the facility showed a high concentration of E.coli bacteria.

The discharges violated a National Pollutant Discharge Elimination System permit issued to RSC Dairy by the State of Oregon. Since being notified of the violations, RSC Dairy has taken steps to correct the violations.

“It is crucial that manure from dairy facilities like RSC is properly managed and kept out of our rivers and streams,” said Edward Kowalski, Director of EPA’s Office of Compliance and Enforcement in Seattle. “We expect all concentrated animal feeding operations to comply with their permit requirements to protect public health and the environment.”

RSC Dairy confines, feeds and maintains approximately 500 cows at its Tillamook facility.

Concentrated Animal Feeding Operations are a leading source of water quality impairment in the U.S.

The NPDES permit program, a section of the federal Clean Water Act, controls water pollution by regulating sources that discharge pollutants to waters in the United States.

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May 26, 2011

Beef Feedlot in Underwood, Iowa, To Pay $20,000 Civil Penalty To Settle Discharge Violations Affecting Mosquito Creek
A beef feedlot in Underwood, Iowa, has agreed to pay a $20,000 civil penalty for unpermitted discharges of wastewater from the facility into Mosquito Creek.

Moran Beef, Inc., agreed to pay the penalty as part of an administrative consent agreement filed by EPA Region 7 in Kansas City, Kan. In June 2009, EPA inspectors visited the facility and found that it lacked controls to prevent the discharge of animal waste into Mosquito Creek and its tributaries. A subsequent inspection in October 2009 collected samples of effluent that showed the facility was discharging pathogens, ammonia and nitrate into an unnamed tributary of the creek.

At the time of EPA’s inspection of Moran Beef, the facility was confining approximately 1,485 cattle in its open lot and confinement barn operations. A Concentrated Animal Feeding Operation (CAFO) with both open lots and confinement barns is subject to regulation under the Clean Water Act as a “Large CAFO” if the entire operation contains more than 1,000 beef cattle.

EPA issued an administrative compliance order to Moran Beef in January 2010, directing it to comply with requirements of the Clean Water Act and end all unauthorized discharges of wastewater from its facility. Following that order, Moran Beef applied for a National Pollutant Discharge Elimination System (NPDES) permit and has built controls at its facility to prevent unauthorized discharges.

Unpermitted discharges of wastewater from CAFOs can cause exceedances in water quality standards and pose risks to human health, threaten aquatic life and its habitat, and impair public use and enjoyment of waterways.

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May 18, 2011

Texas Egg Producer To Pay $1.9 Million Penalty To Resolve Clean Water Act Violations
EPA and the U.S. Justice Department (DOJ) today announced that Mahard Egg Farm, Inc., a Texas corporation, will pay a $1.9 million penalty to resolve claims that the company violated the Clean Water Act (CWA) at its egg production facilities in Texas and Oklahoma. The civil penalty is the largest amount to be paid in a federal enforcement action involving a concentrated animal feeding operation (CAFO). The company will also spend approximately $3.5 million on remedial measures to ensure compliance with the law and protect the environment and people’s health.

“By working with DOJ and our state partners in Texas and Oklahoma, we have reached a significant settlement that reflects the seriousness of Mahard’s violations,” said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. “Large animal feeding operations that fail to comply with our nation’s environmental laws threaten public health and the environment and put smaller farming operations at a disadvantage.”

“This agreement is the result of extensive cooperation between the states of Texas and Oklahoma and the federal government to address multiple violations of the Clean Water Act at Mahard facilities,” said Ignacia S. Moreno, assistant attorney general for the Environment and Natural Resources Division at the Department of Justice. “Ensuring the lawful handling of CAFO wastes will mean cleaner steams and waterways in Texas and Oklahoma, which is important for aquatic habitats, safe drinking water, and public recreation.”

The CWA complaint, filed jointly with the settlement by the United States and the states of Texas and Oklahoma, alleges that Mahard operated a facility without a permit and discharged pollutants into area waterways. Mahard also allegedly discharged pollutants or otherwise failed to comply with the terms of its permits at six other facilities, including its newest facility near Vernon, Texas, where it also failed to comply with the Texas Construction Storm Water Permit and to ensure safe drinking water for its employees. The states of Texas and Oklahoma also alleged violations of state laws.

Most egg production facilities generate various wastes, including wet or dry manure from chicken houses, wastewater from the egg-washing process, and compost from chicken carcasses. If done properly, these wastes may be sold or contained on-site in manure storage lagoons, prior to being applied to nearby fields. However, the joint complaint alleges that, as a result of Mahard’s historic practice of over-applying waste to its fields, the soils at its facilities are saturated with nutrients (nitrogen and phosphorus) and, during and after rainfall, these nutrients are discharged into area streams and waterways. In addition, at several facilities, Mahard abandoned inactive and improperly designed manure lagoons rather than closing them as required by law.

As part of this settlement, Mahard has committed to comprehensive, system-wide changes in order to bring each of its seven CAFO facilities into compliance with applicable state and federal laws, permits, and regulations and to restore the lands to prevent future discharges to area waterways. The settlement mandates the performance of specific requirements, such as lagoon closures, groundwater monitoring, and the construction and maintenance of buffer strips along area waterways within the facility boundaries. It also requires on-going land restoration and management measures, such as restrictions on land-application of manure and livestock grazing.

Preventing animal waste from contaminating surface and ground waters of the United States is one of EPA’s National Enforcement Initiatives for 2011-2013. The initiative continues EPA’s focus on large and medium sized CAFOs that are discharging pollution without or in violation of a permit.

The settlement, lodged in the U.S. District Court for the Northern District of Texas, is subject to a 30-day public comment period and approval by the federal court.

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May 16, 2011

EPA Issues Compliance Orders to Seven Concentrated Animal Feeding Operations in Iowa, Kansas and Nebraska
EPA Region 7 announced today that it has issued administrative compliance orders to seven concentrated animal feeding operations (CAFOs) in Iowa, Kansas and Nebraska, directing those operations to correct a range of violations of the federal Clean Water Act.

Region 7’s latest round of CAFO enforcement activity, aimed at encouraging producers’ compliance with the Clean Water Act and the National Pollutant Discharge Elimination System (NPDES) permitting program, involves seven beef feedlots, including four in Iowa, two in Kansas and one in Nebraska.

“Feedlot-related pollutants have significantly contributed to water quality problems, causing states to list streams as impaired under the Clean Water Act,” EPA Regional Administrator Karl Brooks said. “As Clean Water Act permits provide a crucial tool to maintain water quality, EPA works with our state partners and stakeholders to promote producers' legal compliance. Enforcing feedlot permits and requiring producers to get them, where appropriate, will produce cleaner waters and likely require fewer enforcement actions in the future.”

Wastewater discharges and runoff from CAFOs and lands where those operations store or apply manure and wastes can cause exceedances of water quality standards, pose risks to human health, threaten aquatic life and its habitat, and impair the use and enjoyment of waterways.

Violations noted in the seven separate administrative compliance orders include wastewater discharges by unpermitted medium and large CAFOs, discharges by a large CAFO in violation of its NPDES permit, failures to maintain adequate storage capacity for wastes, and a large CAFO’s failure to adequately track its land application activities to ensure that area surface waters are protected:

Crossroads Cattle Co., Woodbine, Iowa - An inspection and review of the NPDES-permitted open beef feedlot identified failures to maintain adequate storage capacity in its lagoons, and confinement of cattle in areas lacking adequate controls to prevent unauthorized discharges. The order requires the operation to cease use of areas with inadequate controls and ensure wastewater levels in retention structures are in compliance with its NPDES permit. Discharges from the feedlot flow to a tributary of the Boyer River in Harrison County. The feedlot has a permitted capacity of 5,500 cattle and was confining approximately 3,200 to 3,500 cattle at the time of the inspection.

Feedlot Services Company, Neola, Iowa - Inspection found the unpermitted operation was confining 809 beef cattle in an open feedlot that discharges into Keg Creek in Pottawattamie County. The order requires the operation, which has a confinement capacity of 999 cattle, to cease unauthorized discharges or apply for an NPDES permit within 90 days and construct controls before September 30, 2012.

Harlan Northrup, d/b/a Harlan Northrup Feedlot, Griswold, Iowa - Inspection found the unpermitted operation was confining approximately 350 beef cattle in an open feedlot that discharges into a federally recognized wetland and a tributary of Boughman’s Creek in Cass County. The order requires the operation, which has a confinement capacity of 800 cattle, to cease unauthorized discharges or apply for an NPDES permit within 90 days and construct controls before September 30, 2012.

Petersen-Bubke LLP, Mapleton, Iowa - Inspection found the unpermitted operation was confining 1,050 beef cattle in an open feedlot that discharges into Rush Creek in Monona County. The order requires the operation to cease unauthorized discharges or apply for an NPDES permit within 90 days and construct controls before September 30, 2012.

KM Feeders, Lyons, Kan. - Inspection and file review of the NPDES-permitted feedlot found failures to maintain adequate storage capacity in its lagoons. The order requires the operation to ensure wastewater levels in retention structures are in compliance with its NPDES permit, and provide monthly reports to EPA. Discharges from the feedlot would flow to Dry Creek, which is officially listed by EPA and the State of Kansas as an impaired water because of phosphorous and total suspended solids levels. The feedlot has a permitted capacity of 5,200 cattle and was confining at capacity at the time of the inspection.

McPherson County Feeders, Marquette, Kan. - Inspection and file review of the NPDES-permitted feedlot found failures to maintain adequate storage capacity in its lagoons. The order requires the operation to ensure wastewater levels in retention structures are in compliance with its NPDES permit, install legible staff gauges in its retention structures, and provide monthly reports to EPA. Discharges from the feedlot would flow into Sharps Creek in McPherson County. Sharps Creek is officially listed by EPA and the State of Kansas as an impaired water because of E. coli and total suspended solid levels. The feedlot has a permitted capacity of 13,000 cattle and was confining approximately 8,506 cattle at the time of the inspection.

Knox County Feeders, Bloomfield, Neb. - As part of a compliance evaluation, EPA determined that the open beef feedlot had failed to sample its manure, process wastewater and land application areas as required by the terms of its Nutrient Management Plan (NMP) and its NPDES permit, and was unable to provide adequate records associated with its land applications. Those failures made it impossible to determine application rates for manure disposal, putting nearby surface water at the risk of potentially harmful discharges. The order requires the operation to update its NMP and meet all sampling and recordkeeping requirements of the NMP and NPDES permit. The feedlot has a permitted capacity of 5,000 cattle.

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April 27, 2011

Federal Jury Finds that Massachusetts Cranberry Growers’ Filling Wetlands was Subject to Clean Water Act
A federal jury this week found that the Clean Water Act applied to the filling of wetlands and other waters at two properties in Carver, Mass., owned by Charles Johnson, Genelda Johnson, Francis Vaner (“Van”) Johnson, and Johnson Cranberries Limited Partnership (the Johnsons), announced Assistant Attorney General Ignacia S. Moreno of the Justice Department’s Environment and Natural Resources Division, U.S. Attorney Carmen M. Ortiz and EPA Regional Administer H. Curtis Spalding.

The Johnsons filled and altered approximately 46.1 acres of wetlands and other waters in order to construct cranberry bogs and associated structures.

The suit was originally brought by the United States in 1999 at the request of the U.S. Environmental Protection Agency (EPA) to enforce a provision of the Clean Water Act which prohibits the discharge of dredged and fill material into waters of the United States, which include certain wetlands, without first obtaining a permit from the U.S. Army Corps of Engineers.

In 2004, the U.S. District Court ruled that the Johnsons had filled the wetlands and other waters without obtaining a permit. After two appeals and a change in law resulting from a 2006 Supreme Court ruling, the case was given to a jury to decide whether the Clean Water Act applied to the wetlands and other waters at the Johnson properties under new standards set out by the Supreme Court’s 2006 ruling in Rapanos v. United States. On Monday, April 25, 2011, the jury upheld the government’s assertion of jurisdiction.

The prosecution of the case was handled by Assistant U.S. Attorney George B. Henderson of the U.S. Attorney’s Office in the District of Massachusetts, Department of Justice Environment and Natural Resources Division Attorney Jered J. Lindsay, with assistance from EPA.

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