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Wednesday, May 29, 2024 | Back issues
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Court Says Father & Son Violated Clean Water Act

(CN) - The 6th Circuit determined that a Kentucky father and son who filled wetlands with ditch diggings violated the Clean Water Act. The opinion subtly criticized the U.S. Supreme Court's splintered ruling in Rabanos v. U.S., which outlined jurisdiction under the Act.

Father and son Rudy and Seth Cundiff own adjacent tracts in Muhlenberg County, the "sordid ecological history" of which was made famous by John Prine's song "Paradise," the ruling noted. Wetlands on the tracts hold "exceptionally acidic orangish to reddish colored water that had drained out of an abandoned coal mine located on a neighbor's nearby property."

After buying the properties, the Cundiffs began clearing and draining the land for agriculture without a permit, despite government directives to stop. The pair dug about 12,000 feet of ditches, using the excavated material to soak up the moisture on roughly five acres of wetlands, a practice known as "sidecasting."

The government sued the Cundiffs for Clean Water Act violations. Filling the wetlands affected flooding, acid concentration and sedimentation of the adjacent creeks and the Green River, government witnesses testified.

The district court found the pair guilty and fined them $225,000 - all but $25,000 of which was suspended if they implemented a restoration plan to undo the ditches and replant some of the lost vegetation.

While the appeal was pending, the Supreme Court issued Rapanos, which defined the Act's jurisdiction over "waters of the United States."

The Cincinnati-based federal appeals court remanded with instructions to reconsider jurisdiction in light of Rapanos. The lower court held that jurisdiction was proper, because the wetlands are U.S. waters. The Cundiffs appealed.

The 6th Circuit pointed to various routes that appellate circuits have taken in attempting to reconcile the Supreme Court's 4-4-1 ruling in Rapanos. "[T]he ability to glean what substantive value judgments are buried within concurring, plurality, and single-justice opinions would require something like divination to be performed accurately," Judge Martin wrote.

But the court didn't require divination after all, because it was able to apply more than one Rapanos standard to the Cundiffs' case: Because the wetlands were adjacent to creeks that flow into the Green River, the wetlands filling passed both Kennedy's "significant nexus" test and the plurality's continuous surface connection to a "water of the United States" test.

The 6th Circuit shot down the Cundiffs' argument that "sidecasting" is not pollution, pointing out that the Act includes dredged spoil under its definition of pollutant. The court also denied the Cundiffs' attempts to justify their work under an agricultural exemption and dismissed the rest of their claims.

The district court did not abuse its discretion in ordering the restoration plan, the 6th Circuit concluded, particularly in light of the defendants' "flagrant" violations.

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