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Quad Cities Waterkeeper Inc. v. Ballegeer

United States District Court, C.D. Illinois, Rock Island Division

March 28, 2017

QUAD CITIES WATERKEEPER INC., an Illinois not for profit corporation, and PRAIRIE RIVERS NETWORK, an Illinois not for profit corporation, Plaintiffs,
DAVID G. BALLEGEER, an individual, BALLEGEER TRUCKING, INC., an Illinois corporation, BALLEGEER EXCAVATING, INC., an Illinois corporation, and FRANCIS BALLEGEER, an individual, Defendants.



         This is a Clean Water Act case, 33 U.S.C. §§ 1251-1387 (“the CWA”). Plaintiff environmental organizations sued Defendants under the CWA's citizen suit provision, 33 U.S.C. § 1365(a)(1). The Court granted summary judgment for Plaintiffs as to liability on September 29, 2016. ECF No. 128. A bench trial followed on January 30, 2017 to determine liability. Jan. 30, 31, and Feb. 1, 2017 Minute Entries. Per the Court's order, the parties have each submitted proposed findings of fact and conclusions of law. Having considered the arguments and evidence submitted, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rules of Civil Procedure 52(a) and 65(d).

         FINDINGS OF FACT[1]

         David Ballegeer owns and operates a trucking and excavation company, Defendant Ballegeer Excavating, Inc., which does business as Ballegeer Trucking, Inc. His father[2] Francis Ballegeer owns about 300 acres of farmland that border the Green River in Henry County, Illinois. This land includes the areas at issue in this lawsuit, which the parties referred to by agreement as Sites 1-5 throughout the course of the litigation.[3]

         David Ballegeer grew up on the farm. Sometime in the 1970s, David and Franics Ballegeer built an earthen levee on the stretch of their property that adjoined the Green River, including all of the land in Sites 1-5. The levee was built to protect the property from the Green River when it flooded. In protecting the property from flooding, the levee also protected portions of the adjacent town of Colona.

         At some point also in the 1970s, the Ballegeers added large slabs of concrete to the levee in order to protect it from erosion and to armor it against future flooding. Over the years, this concrete has included concrete taken from the operations of David Ballegeer's company. Photographs of the concrete on the levees, taken by Plaintiffs on trips down the river in 2013 and 2014, show that the levee immediately abuts the river, and consists in places of large concrete pipes, cinderblocks, and chunks of concrete many feet in size. Some of it also contains asphalt, bricks, and visibly protruding rebar. The concrete extends from the base of the levees themselves and into the bed of the Green River. Over the years, the Ballegeers have added to the levee, and repaired it as it has broken. Floods have both broken and washed away portions of the levee, and have overtopped it at times.

         Over the years, the Ballegeers have attempted to make sure that their levee complies with the law. They did so by, on several occasions, going to the local offices of the United States Army Corps of Engineers (“the Corps”), and speaking to a Corps employee, Donna Jones. According to Jones's trial testimony, Jones explained to them the permitting requirements of the Clean Water Act, and told them that if their levee fell within certain “nationwide permits, ” they would not have to proactively seek issuance from the Corps of a permit under the CWA.

         Plaintiffs Quad Cities Waterkeeper, Inc. (“Waterkeeper”) and Prairie Rivers Network (“PRN”) are nonprofit organizations that monitor rivers and the environment in areas that include the stretch of the Green River at issue. Art Norris is the Executive Director of Waterkeeper. At some point in 2011, John Daggett, a local fishing enthusiast, contacted Norris in response to a newspaper ad asking for evidence of pollution in rivers. Daggett told Norris that he had seen concrete in the Green River adjacent to the Ballegeers' farm. In May 2011, the two went boating on the Green River to look. They saw the concrete in the river, through which they had to go slowly to avoid hitting the concrete with their boat. Daggett testified at trial that his enjoyment of the river was diminished by all of the concrete in it, because the concrete made it more difficult to go fishing, and diminished his overall aesthetic appreciation. Norris testified that his enjoyment of the river was also hindered by the concrete, which he felt had replaced the trees that sat on other portions of the riverbank.

         On February 29, 2012, Waterkeeper sent a letter to Francis Ballegeer indicating that it intended to sue him under the CWA if he did not remove the levee concrete from the river, alleging that the concrete and associated materials were pollutants within the meaning of the CWA. On July 19, 2012, Waterkeeper filed the instant lawsuit against Defendants (PRN was added as a plaintiff later). In response to Waterkeeper's initial letter, the Ballegeers again spoke to Jones to check whether their levee was legal under the CWA. The Corps inspected the Ballageers' levee on March 7, 2012, and, by letter two days later, told them that their levee did not need a permit. Nonetheless, in October 2012, David Ballegeer applied for a Section 404 permit under the CWA. As part of their application process for this permit, which process continued while the instant litigation moved forward, the Ballegeers retained a consulting firm and drew up a detailed plan for completion of the proposed project, which contained responses to comments that had been solicited from the United States Fish and Wildlife Service, the City of Colona, and the legal representatives of Plaintiffs. A representative of the Corps also walked along the riverbank that was the subject of the application and identified concrete with exposed rebar. The Illinois Environmental Protection Agency also certified the permit.

         The Corps granted the permit, effective December 8, 2014. This permit, in evidence as Plaintiff's Exhibit 16 at QCWK-005447, authorized the Ballegeers to place riprap[4] along two portions of bank line on the Green River, corresponding to areas covering part of Site 4 and all of Site 5. The permit contained specific requirements for the grade of the slope, which had to be re-graded to be less steep than it then was, and specified the kind of riprap material allowed to be used. The material had to be concrete, and in pieces not greater than three feet across the longest flat surface. Trees on the bank line had to be either protected with riprap or cut, if they were leaning into the river. It further specified that if the levee was widened, it must be widened on its landward side. Extra riparian vegetation was to be established by planting of live willow stakes and cuttings. The permit expires on December 31, 2024. The permit requires that the Ballegeers permit Corps officials to inspect the project at any time. The permit also contains special conditions, including that the riprap used must consist of native fieldstone or clean quarry run rock or clean broken concrete. If the latter is used, the permit requires that reinforcement material shall be removed from the concrete or cut flush with its flat surface. The Ballegeers are assigned responsibility for making sure that reinforcement material that becomes exposed is removed.

         Meanwhile, the litigation before this Court continued. In April 2014, both sides moved for summary judgment. See Defs.' Mot. Summ. J., ECF No. 36; Pls.' Mot. Partial Summ. J., ECF No. 61. On March 26, 2015, the Court ruled on the motions. Part of the Court's ruling on Defendants' motion included a determination, for purposes of summary judgment, that at least some of the material that Defendants had used to construct their levee could be pollutants and not excepted by the nationwide permits, as the Corps had told Defendants it was, because that material included concrete with protruding rebar and asphalt. Mar. 26, 2015 Order 22-27, ECF No. 88. Although framed as preserving the question of whether or not the material in question included protruding rebar and asphalt, the materials in question were, as determined later by the Court at trial and described herein, indeed and incontrovertibly asphalt and exposed rebar. This was contrary to the advice that had been offered by the Corps to the effect that the levee, as it stood, fell within a nationwide permit and did not need a Section 404 CWA permit. With little recourse left, Defendants argued in response to Plaintiffs' renewed motion for summary judgment, ECF No. 122, that their work on their levee over the years had fallen into a statutory maintenance exception. The Court disagreed, Sept. 29, 2016 Order, and granted summary judgment to Plaintiffs. A bench trial to determine remedy followed.

         At trial, both parties called experts to testify. Plaintiffs' expert, Dr. Russell Dutnell, a fluvial geomorphologist, testified that the amount of concrete placed on the banks of the Green river was more than was necessary to achieve adequate bank stabilization. He also testified that the concrete had destroyed riparian plant buffers and removed the habitats of the animals that lived there. He testified that the grass that had managed to grow on the Ballegeers' levee was sparse and not as diverse as what was able to grown on unleveed portions of river. Defendants' expert, Greg Wolterstorff, a civil engineer with a specialization in water resources, and who had prepared the outside consultant's report for the Ballegeer's permit application, testified that it would be impossible to construct a levee without disrupting riparian vegetation to some extent. He testified that there were bushes, trees, and grass along at least some portions of the Ballegeers' levee. He testified that the levee was stabilizing the bank of the river and preventing it from eroding under the forces of the Green River. He also testified that the amount of rock in the Ballegeers' levee was not excessive. In Wolterstoff's view, at least some of the concrete placed at the base of the levees, and in the river, constituted “toe, ” or base protection for the levee to prevent its erosion, and served a useful purpose to the survival of the levee.

         Additionally of relevance to the Court's conclusions of law was the testimony of Robbin Ballegeer, who is David Ballegeer's wife, and who keeps track of finances for his company. She testified that the instant litigation and related costs have imposed a significant financial burden on Defendants, who have incurred more than $250, 000 in attorney's fees, and have not yet been able to pay it all.


         The Court previously found that Defendants' placement of concrete, rebar, dirt, and other pollutants on the banks and bed of the Green River below the ordinary high water mark had violated 33 U.S.C. § 1311(a), as alleged in the first two counts of Plaintiffs' amended complaint, and had not fallen within any exception to the CWA. Am. Compl. ¶¶ 53-62, ECF No. 5; Sept. 29, 2016 Order 3, 14-15. Since these were the only claims remaining, the Court granted Plaintiffs' renewed motion for summary judgment, in its entirety. At the bench trial held to determine remedy, Plaintiffs sought the following relief:

(1) A declaratory judgment that Defendants “have violated and are continuing to violate the Clean Water Act by discharging concrete and other construction waste onto the banks of the Green River, a water of the United States, below the ordinary high water mark and onto the bed and bottom of the river, without a Clean Water Act Permit and without a valid exemption under the Act.” Pls.' Trial Br. on Remedy 3, ECF No. 133. Plaintiffs also seek a declaratory judgment that they were the prevailing party. Pls. Post-Trial Br. 5, ECF No. 146.
(2) A civil penalty assessed against Defendants pursuant to 33 U.S.C. § 1319(d) in the amount of $100, 000, but with $90, 000 suspended, to be canceled if Defendants comply with the injunctive orders Plaintiffs also request. Pls.' Trial Br. on Remedy at 22-30.
(3) A permanent injunction against Defendants and their agents, assigns, and successors from discharging concrete and other construction debris below the ordinary high water mark of the Green River and on the bed and bottom of that river at the sites ...

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