A federal district court for the Central District of Illinois issued an opinion interpreting the scope of the maintenance exemption to the Clean Water Act’s (CWA) prohibition of the discharge of dredge and fill material into waters of the United States. The case, Quad Cities Waterkeeper Inc. v. Ballegeer, Case No. 4:12-cv-4075, raised the question of whether the structure being maintained must be permitted under the CWA for the exemption to apply.
The defendants in Quad Cities Waterkeeper had deposited concrete and rebar next to a levee along the banks of the Green River in an effort to fortify the structure. The parties agreed that the levee was not permitted by the Army Corp of Engineers when it was first constructed, it was not old enough to be grandfathered under the CWA, and that defendants’ work had caused otherwise prohibited discharges. The outcome turned on the applicability of Section 404(f)(1)(B) of the CWA, 33 U.S.C. §1344(f)(1)(B), which provides that “the discharge of dredge or fill materials for the purposes of maintenance…of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures…is not prohibited by or otherwise subject to regulation under this section….”
Granting summary judgment for the plaintiffs, the Court found that defendants’ discharges did not fall within Section 404(f)(1)(B). Despite the plain language of the section, the Court decided, there is an implied condition that the structure on which the maintenance is being done is not one for which a CWA permit was required when it was built, but never obtained. It relied on the absurdity doctrine, reasoning that it is “unthinkable” that Congress would have wanted to shield polluting activities merely because they could be considered maintenance of a structure that itself flagrantly violated the CWA.
The opinion did not, however, limit the exemption as far as it could have. The plaintiffs argued that that it applies only to structures that (1) were required to and (2) did obtain CWA permits. By ruling as it did, the Court did not express a opinion on the availability of the exemption for maintenance of infrastructure that did not obtain a CWA permit during construction, but only because it did not at the time it was built affect jurisdictional waters. Jurisdictional waters are, however, changing – because of both EPA’s new interpretation of the definition of waters of the United States and because rising sea levels are expected to continue to alter the nation’s coastlines. As they do, more courts are likely to be confronted with questions about what exactly the CWA’s maintenance exemption means.