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April 7, 2003


The opinion of the court was delivered by: Amy J. St. Eve, United States District Court Judge


Plaintiff, the United States of America, brings this civil action for injunctive relief and for civil penalty against Defendants Robert L. Hummel, Robert L. Hummel Construction Co. Inc., HDB Development Corporation, Dale Berger, and Dior Realty, pursuant to the Clean Water Act, 33 U.S.C. § 1251 et seq. (CWA). In its complaint, Plaintiff alleges that Defendants violated the CWA by discharging pollutants into a federally protected wetland without prior authorization. In response, Defendants claim that their activities were authorized, did not release pollutants, and did not occur on a protected wetland. Both parties have filed for summary judgment. For the reasons below, Plaintiff's motion for summary judgment is GRANTED in part and DENIED in part and Defendants' motion for summary judgment is DENIED.

I. Factual Background

A. The Parties

Roben Hummel is the sole owner of Robert L. Hummel Construction Company, an Illinois corporation whose primary business is house excavations. From time to time, Hummel Construction also performs underground work on sewer and water lines. Robert Hummel is also involved in a number of residential and commercial development partnerships, including HDB Development Corporation (HDB). The general partners of HDB include Robert Hummel, Dale Berger and Dior Realty (which is solely owned by Peter Di Iorio). In 2000, HDB sold a residential development project called Pheasant Ridge which it had developed from vacant farmland. Robert Hummel is also a partner in another residential development venture called Long Grove 400. The Long Grove 400 partnership owned a development project known as Indian Greek Club located about one quarter mile west of HDB's Pheasant Ridge project. It is on this property that Plaintiff contends the CWA violations took place.

B. The Wetlands

Long Grove 400's Indian Creek Club project is located on a wetland complex in Long Grove, Illinois, which is part of Lake County. A body of water called Sylvan Lake lies slightly above and west of the complex. A small steam, called the Sylvan Lake Drain, flows from Sylvan Lake though the wetlands and joins another body of water called Indian Creek, which flows east-southeast over part of the wetlands and into the Des Plaines River. The Des Plaines River flows into the Illinois River and eventually into the Mississippi River.

C. Regulatory Framework

This country's wetlands are often subjected to a myriad of local, state, and federal regulations to insure their continued ecological viability. Federal authority over wetland regulation derives in part from the CWA, an encompassing legislation designed to maintain the integrity of the Nation's waters. 33 U.S.C. § 1251 (a). of relevance here, the CWA prohibits discharges of any pollutants, including dredged or fill material, into protected wetlands unless authorized by a permit issued by the United States Army Corps of Engineers (Corps). 33 U.S.C. § 1311 (a), 1344(a). The CWA's regulatory scheme does not reach each and every wetland. Rather, for the CWA to apply to a particular wetland, the wetland must fall within the CWA's definition of "navigable waters." 33 U.S.C. § 1344 (a). The CWA broadly defines "navigable waters" as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362 (7). The Corps regulations have expanded this definition to include, in relevant part:

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivets, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, the use, degradation or destruction of which could affect interstate or foreign commerce . . .;
(4) All impoundments of waters otherwise defined as waters of the United States under the definition;
(5) Tributaries of waters identified in paragraphs (a)(1) through (4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1) through (6) of this section.
33 C.F.R. § 328.3 (a).

Assuming a particular wetland falls within the above definition, owners and developers must obtain permission before engaging in activities that would disturb the wetland. Specifically, the Corps has regulatory authority to require permits for the discharge of dredged or fill material into the waters of the United States. 33 U.S.C. § 1344 (a) (emphasis added). The Corps authorizes discharges through two types of permits: (1) individual permits, which must be applied for on a case-by-case review; and (2) general permits, issued on a state, regional, or national basis, which authorize certain activities without requiring a permit application. 33 U.S.C. § 1344. General permits most often cover routine projects which are known to have minimal impact on wetlands. 33 U.S.C. § 1344 (e). Once issued, the Corps also has the discretion to revoke, suspend, or modify general permits if necessary to further the public interest. 33 C.F.R. § 330.1 (d),

The Corps retains significant discretion to grant or deny an applicant's permit. The more biologically functional the wetland, the more likely the Corps will prohibit potentially damaging development activity from occurring on the wetland. On occasion, the Corps will undertake to publically identify and designate those wetlands warranting extraordinary protection through a process call Advanced Identification or ADID. The ADID designations alert potential and current property owners and developers that they must overcome particularly onerous hurdles before engaging in activities that may disrupt the wetland.

D. 1991-1993 ADID Study

Starting in 1991, a number of federal, state, and local agencies conducted a study of Lake County, Illinois wetlands to identify ADID wetlands (the ADID Study). The ADID Study used aerial photography, computer mapping, and site visits to determine which of Lake County's wetlands were deserving of extraordinary protection. The ADID Study identified approximately 200 sites, including the wetland on which Long Grove 400's Indian Creek Club Project is located, that it deemed unsuitable for discharges of pollutants. To develop the ADID Study, the Corps issued public notices, solicited comments, and held a public meeting regarding the proposed ADID designations. On February 1, 1993 the Corps issued a second public notice announcing the finalization of the ADID Study and published its findings in a Record of Decision and Final Report, which summarized the ADID Study's technical aspects. Also, concurrent with the finalization, the Corps announced that it was eliminating certain nationwide permits for the sites identified in the ADID Study.

E. Defendants' Activities

From on or about January 26, 1998 to January 29, 1998, Hummel Construction installed a 15" sanitary sewer line through part of their Indian Creek Club project in a roughly one-acre area the parties refer to as "Outlot A". The new sewer runs along an existing sewer line through the wetland, connecting from an upstream manhole at the northeast corner of Gilmer Road and Midlothian Road to a manhole in the middle of the wetland and then to a manhole located on a road crossing at Cripple Creek Road, in city of Long Grove, Lake County, Illinois. To accomplish the sewer installation, Hummel Construction dug a trench approximately 525' feet long and 30" wide and 3' deep, placing dirt and wetland plants to the side. Using a backhoe, Hummel Construction then removed and crushed an old sewer line from the trench. After installing new 15" pipes, Hummel Construction packed and sealed the trench with the previously sidecast dirt, plants, and pieces from the old pipe and regraded the wetland.

A few days before performing the sewer installation in Outlot A, Hummel Construction installed a 73' section of 15" sewer line through another section of the Indian Creek Club property referred to by the parties as "Outlot B" which is located east of the road crossing at Cripple Creek Drive. Hummel Construction's employee, Tim Stephens, testified that he installed the new sewer through Outlot B in the "exact same way" he installed the sewer through Outlot A except that he did not remove and crush an old pipe during the installation.

While Hummel Construction was working on the larger of the two sewer lines, an employee of the local stormwater management commission drove by and observed the sewer installation. He reported Defendants' activities to the Corps which issued a cease and desist order requiring Defendants to mitigate the wetland violations and to install a new sewer line outside of the wetland. When Defendants refused to implement the order, the Corps referred the matter to the Department of Justice which brought the present lawsuit. Plaintiff claims that Defendants violated the CWA because they did not obtain a permit from the Corps before discharging pollutants into a federally protected wetland. Defendants deny that a permit was required for the sewer installation and deny that the Corps has jurisdiction over the wetland at issue. Both parties have filed motions for summary judgement.

II. Standard of Review

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. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When presented with cross-motions for summary judgment, the court considers the motions simultaneously and draws all ...

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