United States District Court, E.D. Arkansas, Jonesboro Division
CLEO WATKINS; PYLES FAMILY FARMS LLC; VICTOR HUTCHERSON; ALVELLA HUTCHERSON; HELEN KNIGHT; MICHAEL WATKINS; BETTY WATKINS; and GEORGE CARNEY PLAINTIFFS
LAWRENCE COUNTY, ARKANSAS; JOHN THOMISON, in his official capacity as County Judge of Lawrence County, Arkansas; and WILLIAM POWELL, DONALD RICHEY, LLOYD CLARK, HEATH DAVIS, ERNEST BRINER, RONALD INGRAM, TRACY MOORE, KENNY JONES, and ALEX LATHAM, all in their official capacities as members of the Lawrence County Quorum Court DEFENDANTS
Marshall, Jr. United States District Judge.
and the other plaintiffs are farmers in Craighead County,
Arkansas. They've sued Lawrence County and its leaders
over a bridge that Lawrence County built in the early 2000s.
It crosses the West Cache River Slough near the
Lawrence/Craighead County line. Watkins and the farmers
allege that Lawrence County improperly built this bridge.
They also allege that Lawrence County hasn't properly
maintained it, violating an after-the-fact § 404 permit
issued by the Army Corps of Engineers. Because of this,
Watkins and the farmers say, the bridge has turned into a
de facto dam that causes frequent-and increasingly
severe-flooding over their property. They've pleaded five
counts: violations of the Clean Water Act; public nuisance
under Arkansas law; declaratory judgment; inverse
condemnation under federal and state law; and violations of
42 U.S.C. § 1983. They seek injunctive relief, as well
as damages. Lawrence County has moved to dismiss. It argues
that the Clean Water Act doesn't provide a private right
of action here and that the relevant statutes of limitation
bar this suit. Both sides have filed crisp and clear papers.
Clean Water Act doesn't authorize a citizen suit in these
circumstances. Watkins argues that these suits exist to
redress violations of this Act. He's right. But 33 U.S.C.
§ 1365(a)(1) limits citizen suits to those involving an
"effluent standard or limitation." For example,
§ 1365(f) lists National Pollutant Discharge Elimination
System permits when it defines an "effluent
standard." These permits are issued by the EPA under
§ 1342(a), or by states under § 1342(b) and §
1311(a). The Court of Appeals' recent opinion in City
of Kennett v. EPA, No. 17-1713 (8th Cir. 9 April 2018),
addressed a challenge to one of these effluent permits.
Watkins's case, though, concerns a § 404
"dredge or fill" permit issued by the Corps under
§ 1344. His claims aren't about effluent;
they're about bridge maintenance and silt accumulation.
notes that § 1311 mentions silt discharge and refers to
§ 1344. He says that this mention and reference, added
to the Clean Water Act's general intention to protect our
water, shows that § 1365 applies to § 404 permits.
The Court disagrees. First, § 1365(f) defines
"effluent standard" on its own. Its words matter.
Second, Congress differentiated between pollution issues
(§ 1342) and navigation issues (§ 1344) when it
passed the Clean Water Act. Different permitting schemes
exist because effluent and dredging are different animals.
Third, even under Watkins's combined reading of 33 U.S.C.
§§ 1365(a), 1365(f)(1), 1311(a), and 1344(a),
there's probably still an effluent requirement. Section
1311(a), for example, covers "the discharge of any
pollutant by any person."
no controlling precedent from the United States Court of
Appeals for the Eighth Circuit. Though the issue was floating
in the background, Sierra Club v. United States Army
Corps of Engineers, 645 F.3d 978 (8th Cir. 2011) is
about citizens' standing to challenge a § 404 permit
in a suit against the Corps and a utility. Watkins and the
other farmers aren't challenging the Corps' permit to
Lawrence County. The most persuasive precedent on point is
Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356 (5th
Cir. 2012) (per curiam), which this Court will
follow. The Court is not persuaded by Citizens'
Alliance for Property Rights v. City of Duvall, 2014
WL1379575 (W.D. Wash. 2014).
citizen suits to effluent makes sense. The limitation allows
citizens to pursue redress for health issues while reserving
other issues -like infrastructure, navigation, and
dredging-to the Corps. This arrangement follows the
traditional framework for navigable waters, with marginal
alterations that enable private vindication of public health.
Here, there's no effluent or effluent standard in play.
Lawrence County's § 404 permit isn't challenged.
And the County's alleged violations of that permit
aren't covered by § 1365.
claims are timely. The construction of the replacement bridge
was not necessarily injurious. St. Louis Iron Mountain
& Southern Railway Company v. Biggs, 52 Ark. 240,
244, 12 S.W. 331, 331 (1889). The alleged injuries came later
in the form of flooding, silt accumulation, and inadequate
maintenance. Plus, these injuries are recurring. Arkansas
Game and Fish Commission v. United States, 568 U.S. 23,
31-34 (2012). Every time there's a flood, there's a
new injury. And Watkins says that this flooding will
continue. So injunctive relief is available. Montin v.
Estate of Johnson, 636 F.3d 409, 415-16 (8th Cir. 2011).
The precise scope of any such relief is an issue for later in
aren't barred, either. Biggs, 52 Ark. at 244.
Instead, they're limited to injuries sustained within the
relevant statutory time periods. Consolidated Chemical
Industries, Inc. v. White, 227 Ark. 177, 179, 297 S.W.
101, 102 (1957). Lawrence County asks, in its fallback
position, that the Court require Watkins to re-plead specific
incidents and exact damages within these time periods. No. 7
at 2-3. This embedded request is partly granted and partly
denied. Watkins must clarify the farmers' claims for
damages and give notice about injuries sustained within the
statutory periods. At this stage, though, there's no way
to know exact damages. Precise calculations will come after
discovery. No. 8 at 1-3; No 10; No 11 at 2.
County's motion, No. 3, is partly granted and partly
denied. Watkins's Clean Water Act claim is dismissed with
prejudice and his damages on other claims are limited to
those within the statutes of limitation. Watkins must file an
amended complaint by 4 May 2018. Fed.R.Civ.P. 15(a)(2). He
must clarify the timing of his and his fellow landowners'
alleged injuries. And he should put some more ...