The continuing violations doctrine and the Clean Water Act: untenable solutions and a need for reform.

The Clean Water Act serves as the primary tool for wetland protection. While the purpose of the Act is to restore the integrity of the nation's waters, illegal wetland fill activities that occurred in the past potentially lie beyond the reach of the statute's authority. Additionally, penalties for discrete illegal fill activities may be insufficient to dissuade potential violators. In response to these shortcomings, many courts have applied the continuing violations doctrine, which extends the statute of limitations, prolongs jurisdiction over citizen suits, and compounds penalties on a dally basis. The continuing violations doctrine is neither expressly nor impliedly authorized by the Clean Water Act, and this chapter posits that its application therefore cannot be supported. Nonetheless, because the Act fails to hold many potential violators accountable for illegal activities, this result is at odds with the purpose of the Act. For this reason, this chapter argues that an amendment incorporating the continuing violations doctrine is necessary to give the Act the tools necessary to accomplish the goals established by Congress.

I. INTRODUCTION

Wetlands, the various hydrologic systems ranging from spring pools to vast saltwater marshes, enjoy certain protections under the Clean Water Act (CWA or the Act). (1) If material is illegally discharged into a wetland, the CWA, a lengthy, comprehensive command-and-control statute, provides the procedures by which actions against responsible parties are brought; limits the parties that may bring those actions; and establishes the civil and criminal penalties available against liable offenders. However, not all elements of a CWA prosecution are well defined. As recent case law makes abundantly clear, when litigants ask the question precisely what constitutes an illegal discharge into a wetland, there is a conspicuous lack of consensus among the courts. (2) While statutes frequently spawn various interpretations, it is unlikely that any other environmental statute has generated such a radical lack of consensus.

In the context of wetlands, the continuing violations doctrine holds that for every day illegally dumped fill remains in a wetland, a new and separate violation accrues. (3) When the Environmental Protection Agency (EPA) or a citizens group brings an action involving the illegal filling of a wetland, the time when that filling, or "discharge," (4) occurred affects three distinct facets of the lawsuit: the total penalties levied against a CWA violator, (5) whether EPA has jurisdiction over a particular CWA citizen suit, (6) and whether a claim may be brought at all. (7) If the illegal discharge occurred as the suit was brought, then these issues fall to the wayside and the suit proceeds. (8) If, however, the discharge was a discrete event that occurred perhaps six years ago, arguments over these issues are likely to center around the doctrine of continuing violations. (9)

The inconsistent interpretations amongst courts results from an irreconcilable clash between the stated objective of the Clean Water Act and the subsequent mechanisms that are supposed to render that objective obtainable. Congress created the CWA to "restore the chemical, physical, and biological integrity of the Nation's waters," and to eliminate pollutant discharge into the nation's waters by 1985. (10) The Act incorporates various sections that allow for criminal and civil prosecution of those entities that violate the terms of the CWA. (11) However, defendants have successfully argued that the Act does not allow for suits when violations do not fall within the limitations period or when violations ended before the suit was filed. (12) The answer to that defense is the continuing violations doctrine, offered by EPA, citizen groups, and--in many instances--various district courts as a legitimate means of rendering the suit live and viable.

The Ninth Circuit recently addressed whether a process known as "deep ripping" constituted a violation of the CWA. (13) After determining that the process indeed violated the Act, the court faced the task of assessing penalties against the defendant. The Ninth Circuit declined to apply the continuing violations doctrine and instead assessed penalties based on each discrete action that constituted a violation of the Act. (14) This resulted in multiple penalties assessed within a single day, but only for that single day. The court did not contemplate penalties for subsequent days during which fill material remained in the wetland. (15)

The Ninth Circuit had previously considered the continuing violations doctrine in a case brought under the Clean Air Act (CAA). (16) Although the court determined that the continuing violations doctrine was inapplicable in United States v. Trident Seafoods Corp., (17) its decision seemed to rest largely on its finding that the CAA did not contain any section that might be interpreted as allowing fines based on a continuing violation, not because of any specific rejection of the continuing violations doctrine. (18) The appellate court's examination of the provisions of the CWA and its indication of the possible use of the continuing violations doctrine in the CWA context is noteworthy. (19) The Ninth Circuit noted that while the CAA language foreclosed the continuing violations doctrine, the CWA penalty provisions left open the possibility of penalties calculated based on the doctrine. (20)

If the continuing violations doctrine is not applied to certain claims brought under the CWA, many government and private suits will fall before the merits of the claims are reached. Unfortunately, because continuing violations are not contemplated expressly by the Act, they must be imputed by judicial fiat. (21) Such a result leads to disparate interpretations of the continuing violations doctrine, and differences of opinion as to the validity of the approach. Only by amending the statute to incorporate a continuing violations doctrine can the CWA be consistently applied and fulfill its purposes.

Part II of this chapter discusses the importance of wetlands and wetlands protection. Part III provides a cursory history of the CWA, its antecedents, and subsequent wetlands-related government actions. Relevant legislative and factual history demonstrate that the drafters of the CWA did not contemplate an express incorporation of the continuing violations doctrine into its statutory scheme. Part IV briefly analyzes language of the Act pertinent to the continuing violations doctrine. Part V analyzes contemporary treatments of the CWA in the wetlands context with an eye towards the continuing violations doctrine. Part VI briefly examines how courts have approached issues of citizen suit jurisdiction under the CWA, and explores an alternative approach to extending the limitations period--namely, the due diligence discovery doctrine. (22) Part VII concludes that while some courts have chosen to interpret the CWA limitations period liberally, recent rulings do not bode well for future applications of the due diligence discovery doctrine, and thus Congress should ensure no court can ignore the continuing violations doctrine by amending the CWA to authorize it expressly.

This amendment would recognize that a violation exists not only when a discharge occurs, but also that the violation continues every day that the discharged material remains in the wetland. By recognizing that the continuing presence of illegally dumped fill in a wetland constitutes a new violation for each day it remains, Congress would close a loophole that currently lets violators who manage to evade detection for five years (the current statute of limitations for CWA suits) off the hook. Such an amendment also would provide extended citizen suit jurisdiction in federal court and increase available total penalties. This amendment thus would arm the CWA with the tools necessary to give effect to the Act's purpose and provide a strong deterrent against future violations.

II. CHARACTERISTICS AND FUNCTIONS OF WETLANDS

It would be difficult to overstate the importance, both practically and aesthetically, of wetlands. While the more tangible qualities of wetlands are memorialized in literature, (23) music, (24) film, (25) and art, (26) their scientific value increases as we continue to understand their functions.

A. Classifications

The term wetlands refers to many distinct ecological and hydrological systems. (27) Common systems in this classification include freshwater emergent marshes, wet prairies, sedge meadows, shrub swamps, forested wetlands, salt marshes, vernal pools, fens, and bogs. (28) The different types of wetlands have differing characteristics and functions. For example, sedge meadows are seasonal shallow pools supporting a host of invertebrate and plant species for brief periods of time, while oceanside and estuary saltwater marshes are inhabited perennially by avian and marine life. (29)

B. Environmental and Aesthetic Value

Nearly one half of migratory birds depend on wetlands as they pass through the United States. (30) While wetlands are primarily noted for the species of birds they support, wetlands also provide habitat for numerous fauna, such as frogs, turtles, fish, snakes, and otters. (31) Many wetlands are designated National Wildlife Refuges; (32) visits often reveal substantial human affinity for these systems, as demonstrated by bird watchers, waterfowl hunters, and others witnessing the variety of wildlife on display. (33) A visit to a wetland may also provide an opportunity to observe uncommon and unusual animals: "A majority of the nation's rare and endangered species" depend on wetlands for survival. (34)

C. Hydrological Functions

Once maligned as useless areas meriting federal funding to eliminate, (35) wetlands are now recognized for many of the essential functions they provide in the ecosystem. (36) These functions include absorption and slow release of waters to prevent flooding; floodwater purification (37) that in turn protects surfacewater and groundwaters; (38) diminishing droughts and recharging groundwater aquifers; (39) nutrient cycling; (40) providing food protein for wildlife; and providing spawning and rearing grounds for commercially harvested fish. (41) Wetlands are "the most biologically productive ecosystems" in the United States. (42) The importance of these functions to water and water quality brings them under the auspices of the CWA. (43)

An estimated 221 million acres of wetlands once covered this country; today, approximately 100 million acres remain. (44) By 1991, approximately 290,000 acres of wetlands were disappearing per year (45) as a result of urban development, agriculture, silviculture, and rural development. (46) As wetlands disappear, so do their valuable hydrological functions as well as critical nesting, resting and wintering grounds for migratory waterfowl, and habitat for other non-migratory birds. (47)

III. HISTORY OF THE CLEAN WATER ACT

A. Antecedents and Legislative History

The Rivers and Harbors Acts of 1890 and 1899 were the earliest federal statutes to contemplate discharges into navigable bodies of water. These Acts were concerned exclusively with maintaining inland passageways clear of obstructions for navigational purposes. (48) One commentator has noted, "[t]he legislative history of the Rivers and Harbors Act of 1899 demonstrates that Congress's purpose in enacting the law was to protect the navigability of waterways and to enhance maritime commerce." (49) There is no evidence to suggest the statutes' drafters intended the Rivers and Harbors Act to address other problems, such as conservation of natural resources.

While water quality regulation of the nation's waterways has a more than one hundred year history, (50) Congress enacted the first Federal Water Pollution Control Act (FWPCA) in 1948. (51) This Act did not provide for direct federal enforcement of effluent levels in navigable waterways. (52) With the certification of the CWA in 1972, the federal government established greater control over all waterbodies of the United States (53) and created the National Pollution Discharge Elimination System (NPDES) to regulate discharges into navigable waterways. (54)

Public sentiment that "water pollution was ... a national problem that required a national solution" likely pressured the several amendments to the FWPCA that began with the 1970 Act. (55) The 1970 Act specifically addressed oil pollution and created a mechanism to assess penalties for past violations in that context. However, this exception to Congress's usual policy of not providing monetary penalties for pollution violations was very specific and limited. (56)

While the language of the 1972 Amendments provides the clearest indication of Congress's intent to make further progress in water quality through applicable limitations and allowances, the legislative history is surprisingly void of references to wetland protection. References to the purpose (57) of the Act abound. (58) The history indicates that "discharge" was intended to relate primarily to sewage treatment plants and oil pollution. (59) Only discussion of the Act's citizen suit provision provides insight as to whether Congress intended to make acts previously committed redressable under this legislation. Senator Muskie frequently referred to the citizen suit provision as one intended to address current wrongs. (60) Despite one reference to a citizen's right to bring suit against any person alleged "to have been" in violation of the Act, this solitary allusion to a retroactive right seems unlikely to rebut numerous other references indicating that the citizen suit provision is only prospective. (61)

B. Subsequent History

As understanding of wetlands' importance grew, federal agency policy regarding wetlands began to change. In 1990, Congress embraced a "no overall net loss" position toward wetlands destruction. (62) That same year, EPA and the United States Army Corps of Engineers (Corps) jointly issued a memorandum of agreement (MOA). The MOA established a three-tiered protocol to deal with wetland losses, the practical outcome of which was the mitigation of unavoidable losses through the creation of new wetlands. (63) While congressional tenor and agency policy apparently changed, the CWA remained in relevant part as originally penned. No provisions for retrospective lawsuits were added to the Act.

The history of the Act--legislative and factual--indicates that the statute's non-equitable provisions were designed to address current water-quality problems. (64) The Act's language, antecedents, and legislative history lend no support for the proposition that Congress intended discharges into wetlands to have characteristics that could be deemed "continuing." Any support for the availability of non-equitable relief for past CWA violations must derive from the language of the statute itself.

IV. RELEVANT LANGUAGE OF THE CLEAN WATER ACT

For penalties to be assessed against entities dumping fill into a wetland, the action must violate section 301(a) of the CWA. (65) Section 301(a) states: "[e]xcept as in compliance with this section and [other enumerated] sections ... the discharge of any pollutant by any person shall be unlawful." (66) Thus, a discharge of pollutants into a wetland without a permit constitutes a violation of section 301(a) of the Act and the statute of limitations begins to run on any claim arising from that violation. (67)

Consequently, what the CWA considers a "discharge" for purposes of section 301(a) is relevant to whether a violation has occurred. The term "discharge," standing alone, "includes a discharge of a pollutant, and a discharge of pollutants." (68) The dictionary definition somewhat improves on this tautology, stating that a discharge is "a discharging," and that the term derives from the Old French decharge: "an unloading." (69) The definition of "discharge of a pollutant" from section 502(12) of the Act strengthens the meaning of "discharge" under the CWA: "(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." (70) "Point source" is defined in section 502(14) as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." (71)

From a plain language, or "discrete violation" perspective, a discharge is the addition or unloading of pollutants to a body of water from a point source. This implies that an actual, discrete release of a pollutant must exist to constitute a discharge under the Act, and by extension, to be recognized as a violation under section 301(a). In contrast to this interpretation of section 301(a), as demonstrated infra, the continuing violations doctrine adds that a discharge also occurs every day illegally dumped fill remains in a wetland. (72)

V. CONTEMPORARY TREATMENT OF THE CLEAN WATER ACT

A. Application of the Continuing Violations Doctrine to the Act

The continuing violations doctrine applies to a wetland violation in three contexts: citizen suit jurisdiction, statute of limitations, and total penalties available against a liable party.

1. Jurisdiction over Citizen Suits

In a citizen suit, the continuing violations doctrine allows a court to hear a citizen suit filed under section 505 where a discrete fill action occurred in the distant past. Under section 505, citizens may bring suit against "any person ... who is alleged to be in violation of [] an effluent standard or limitation [of the Act]." (73) This provision then begs the question: What is meant by "to be in violation"?

In Informed Citizens United, Inc. v. USX Corp, (74) the defendants argued that "to be in violation" required "ongoing dumping of fill material onto wetlands." Because the defendants had stopped dumping before the lawsuit was initiated, they claimed that they were not in violation and that the plaintiff citizens group lacked any statutory basis for its suit. (75) According to the discrete violation approach, the defendants correctly interpreted "violation" to mean "initial dumping." While ultimately dismissing the plaintiff's suit on other grounds, the court stated that "a violation is `continuing' for purposes of the statute until illegally dumped fill material has been removed." (76) Under this approach, whenever illegally placed fill remains in a wetland, the violation is continuing or intermittent, (77) and citizens may bring a suit under section 505 against the entity responsible for past discharges into the wetland. (78) Compared to an approach whereby violations are tallied only for each literal discharge, the continuing violations approach plainly leads to more violations. In effect, the continuing violations doctrine grants federal courts broader jurisdiction over citizen suits.

2. Extending the Statute of Limitations

The continuing violations doctrine similarly affects the statute of limitations defense. Under the discrete violations approach, using the five-year statute of limitations of 28 U.S.C. [section] 2462, an action for a discrete, singular wetland fill activity that occurred more than five years prior would be barred. (79) However, the continuing violations doctrine has made actionable fill activity that occurred thirteen years before commencement of the suit. (80) In United States v. Reaves the district court stated that while the fill had occurred thirteen years ago, "[d]efendant's unpermitted discharge of dredged or fill materials into wetlands on the site is a continuing violation for as long as the fill remains." (81) Because the fill was still present in the wetlands at the time of trial, the court held that "the five-year statute of limitations under 28 U.S.C. [section] 2462 has not yet begun to run on the Government's claim either for civil penalties or injunctive relief. This finding is consistent with the remedial purposes of the CWA and the [Rivers and Harbors Act]." (82) The court noted that the continuing violations doctrine served to indefinitely toll the statute of limitations for as long as the fill remains in place.

3. Augmenting Possible Penalties

Finally, and perhaps of greatest importance to CWA litigants, the continuing violations doctrine uses the same "every day is a new violation" approach to the calculation of available penalties. Succinctly stated, because every day results in a new violation, penalties of up to $27,500 (83) accrue daily for each discrete fill activity. In United States v. Cumberland Farms, (84) the District of Massachusetts expressly adopted the continuing violations doctrine in one such calculation, (85) rendering a larger penalty than otherwise would be available. The court noted that "it is open to the United States to seek a civil penalty of up to $10,000 per day for each day of violation of that Act. A day of violation constitutes not only a day in which [the defendant] was actually using a bulldozer or backhoe in the wetland area, but also every day [the defendant] allowed illegal fill to remain therein." (86) Thus, the court held the defendant liable for penalties greater than the corresponding number of discrete discharging incidences. The example below highlights the effect of this holding.

4. Affecting Three Aspects of One Lawsuit

Applying the continuing violations approach instead of the discrete violation approach may result in a substantially different outcome. Under the discrete violation approach, if on Monday Developer X unloads one yard of material into a protected wetland without the benefit of a permit, a violation accrues on Monday, and Developer X is subject to the penalties provided for in the Act. So long as the developer does not dump any more material into that wetland without a permit, penalties are limited to an amount available for one violation. On the other hand, the continuing violations doctrine would levy penalties against Developer X for the illegal dumping that occurred on Monday, and also would contemplate penalties for every subsequent day the fill remained in the wetland.

The passage of six years makes this distinction more vivid. In such a scenario, the advantages of treating Developer X under the continuing violations doctrine are three-fold. The continuing violations provides a court with jurisdiction to hear a citizen suit because Developer X's failure to remove the fill means that he is "in violation" of the Act. This same rationale effectively nullifies any statute of limitations defense that might be raised. Finally, because each day marked a new, distinct violation, the total amount of available penalties now reaches $60,225,000. If a continuing violations doctrine is not applied, citizen groups have no statutory basis for a claim against Developer X, the statute of limitations also bars an EPA claim, and total penalties could not exceed $27,500.

B. United States v. Telluride Co.

For the continuing violations doctrine to fit into the scheme established by section 301(a), the plaintiff must be able to demonstrate that a discharge occurred every day after the day the material was dumped into the wetland by the violator. Without any action on the part of the violator, can a discharge take place? At first blush, the answer would appear to be no, and this was the position taken by the District Court of Colorado in United States v. Telluride Co. (87)

1. The Telluride I Methodology

United States v. Telluride Co. (Telluride I) (88) is cited most frequently as the leading case rejecting the continuing violations doctrine in wetland fill cases. (89) In Telluride I the United States brought a civil enforcement action for injunctive relief and civil penalties against the Telluride Company (Telco) and others for violations of CWA, including wetlands filling, which occurred during the construction of a ski resort. (90) Telco filed a motion for partial summary judgment on statute of limitations grounds, claiming that suit should have been brought within a five-year period as stated in 28 U.S.C. [section] 2462. (91) The District Court agreed with Telco. The court stated, "Telco is not presently discharging pollutants, and thus no present or continuing violation exists for the purpose of the statute of limitations. The fact that a continuing impact exists from Telco's past violations does not render the violation continuing." (92)

2. Telluride I Gets it Right

The Telluride I court held that a discharge is a discrete, physical act resulting in additional pollutants being released into a wetland. The court distinguished the discharge itself from the effects of the discharge, which, Telluride I notes, are causally related, but not synonymous. (93) 3M v. Browner, (94) discussed infra Part VI(B), substantiated the Telluride I court's statements by noting, "In an action for a civil penalty, the government's burden is to prove the violation; injuries or damages resulting from the violation are not part of the cause of action." (95) Furthermore, there is no indication in the legislative history that at the inception of the Act, Congress imbued the term "discharge" with any more significance than its statutory or dictionary definition ascribes to it. (96)

In the absence of authority to the contrary, it appears that a discharge is precisely what the Telluride I court interpreted it to be: an action or unloading that results in the addition of pollutants to a wetland. This interpretation requires a violative action to allege a discharge from a point source (as opposed to, for example, a discharge from a natural event). By requiring that the pollutant come from a point source the court preempted any argument construing the breakdown and migration of wetland fill as a discharge. (97)

3. Criticisms of Telluride I

Critics of Telluride I claim that any interpretation of section 301(a) must contemplate the greater context in which it is found. (98) The objectives of the CWA are "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" in an effort to eliminate the discharge of pollutants into the nation's waters by 1985. (99) References to this purpose are found throughout the Act's legislative history. (100) Because this is the Act's overriding purpose, it stands to reason that sections following the Act's policy statement simply modify the original purpose. The Telluride I court erred because it read section 301(a) in isolation and neglected to consider these objectives.

Criticism of Telluride I also arises where an entity's wetland-free violation of the CWA has gone unnoticed for more than five years. Because courts almost universally apply 28 U.S.C. [section] 2462 as a catchall statute of limitations, (101) most federal courts today will declare that CWA actions for fines, penalties, and forefeitures must be brought within five years of when the violation first accrued. (102) If Telluride I is taken at face value, defendants who were clever or lucky enough to go five years without detection will be beyond the reach of any claim for penalties brought under the Act. (103) This "no accountability" result cannot be reconciled with the Act's purpose and goals. To achieve the goals of the CWA, various courts have held that those violations must fall under the rubric of continuing violations. (104) If, however, the continuing violations doctrine cannot withstand scrutiny, accountability must be achieved by some other manner.

C. Citizen Suit Jurisdiction: Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.

The Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. (Gwaltney) (105) provides the bedrock upon which many continuing violations doctrine decisions rest. In Gwaltney, respondent Chesapeake Bay Foundation Inc. filed suit under the citizen suit provision of the CWA, (106) alleging effluent limitations violations. (107) Gwaltney, a meat packer, discharged excessive levels of pollutants, including fecal coliform, chlorine and total Kjedahl nitrogen, because it lacked a sufficient processing mechanism for consistently removing those pollutants. (108) Gwaltney argued that the District Court lacked jurisdiction over any citizen-based CWA claim because Gwaltney's violations had ceased a few weeks before the plaintiffs filed their complaint. (109)

On appeal, the Supreme Court interpreted the limiting phrase "to be in violation" in section 505 of the CWA. The Court found that "[t]he most natural reading of `to be in violation' is a requirement that citizen-plaintiffs allege a state of either continuous or intermittent violation--that is, a reasonable likelihood that a past polluter will continue to pollute in the future." (110) The Court stated that if Congress had wished to allow suits for wholly past violations, it could have written the Act to express such an objective. (111) The Court also noted that because of the use of present tense throughout the section and because the Act requires that notice be given before suit is brought, the language of section 505 is best characterized as prospective, and the "interest of the citizen-plaintiff is primarily forward-looking." (112) The Court reasoned that allowing suits for wholly past violations-would render gratuitous the notice requirement of the CWA (113) and "undermine the supplementary role envisioned for the citizen suit." (114)

The Court then addressed the significance of the legislative history of the Federal Water Pollution Control Act of 1972. (115) Most references in the legislative history indicate that wholly past violations are not redressable through a citizen suit. "Members of Congress," the Court noted, "frequently characterized the citizen suit provisions as `abatement' provisions or as injunctive measures." (116) One remark by Senator Muskie seemed to suggest that the citizen suit provision could serve as a basis for suit against past polluters. (117) In Gwaltney, the plaintiff citizen group cited Muskie's remark, but the Court dismissed the comment as out of character with the tenor of the legislative history; thus a retroactive application of the citizen suit provision was precluded. (118) The Court considered Senator Muskie's comment that "a citizen has a right under section 505 to bring an action for an appropriate remedy in the case of any person who is alleged to be, or to have been, in violation" (119) anomalous, and merely a reference to continuous or intermittent violations. (120) Therefore, the Court held that wholly past violations are beyond the reach of a CWA citizen suit.

While the Court stated that allegations of continuous or intermittent violations would confer federal jurisdiction, (121) this statement seems to refer to ongoing disposal actions, not a continuing violation as embodied by the term of art. Applied to the Gwaltney case, "continuous" suggests "joined without intervening space; without cessation or interruption; unbroken; constant; connected." (122) The modifying language immediately following the continuous or intermittent requirement--"a reasonable likelihood that a past polluter will continue to pollute in the future"(123)--implies that the polluter must continually pollute for jurisdiction to exist.

D. Citizen Suits and Statutes of Limitations: North Carolina Wildlife Federation v. Woodbury

1. Finding Citizen Suit Jurisdiction

One of the first post-Gwaltney cases to advance the continuing violations doctrine was North Carolina Wildlife Federation v. Woodbury (NCWF). (124) In NCWF, defendants applied to North Carolina for a permit to mine peat on privately held land. (125) The Corps determined that the property was not subject to the requirements of the CWA and no permit was needed, largely because the defendants had previously drained and filled large portions of the tract. (126) The plaintiff, a citizens' environmental group, brought suit under the citizen suit provision of the CWA, (127) seeking to enforce compliance with the CWA, require the defendants to restore the ditched and drained areas of the tract to their natural state, and restrain thedefendants from future discharges unless appropriate permits were obtained under section 404 of the CWA. (128) The defendants responded that the statute of limitations had run on the claim and that the court no longer had jurisdiction over the controversy. (129) In support of their position, the defendants reminded the court that Gwaltney disallowed citizen suits for "wholly past" violations. (130) Because the NCWF defendants had ceased discharging fill material into the wetlands before the suit was commenced, they claimed their violations were wholly past and therefore the court no longer had jurisdiction to hear plaintiffs claim. (131)

The court in NCWF disagreed with defendants, noting that "it is not the physical act of discharging dredge wastes itself that leads to the injury giving rise to citizen standing, but the consequences of the discharge in terms of lasting environmental degradation." (132) As long as the consequences of the discharge continued--the consequences here being the fill's presence in the wetland itself--the court has subject matter jurisdiction. (133) The court justified its holding by citing the concurrence in Gwaltney. (134) Gwaltney, the NCWF court stated, held that "where citizen-plaintiffs make a `good-faith allegation of continuous or intermittent violations,' federal jurisdiction will attach[.]" (135)

a. Application of the Concurrence from Gwaltney

The Gwaltney concurrence focused on whether the defendant was "in violation [of the effluent limitation] on the date suit was brought" for purposes of establishing subject-matter jurisdiction. (136) Interpreting section 505(a) to mean that "`to be in violation,' unlike the phrase `to be violating' or `to have committed a violation,' suggests a state rather than an act--the opposite of a state of compliance," (137) the concurrence would require the defendant to show on remand that it "had taken remedial steps that had clearly achieved the effect of curing all past violations by the time suit was brought." (138)

The Gwaltney concurrence concentrated narrowly on the nature of the violation and circumstances leading to its occurrence. The defendant released effluent in violation of its section 404 permit because the company lacked a treatment system capable of removing all of those pollutants on a reliable basis. (139) Referring to the unreliable nature of the defendant's treatment system, the concurrence remarked, "A good or lucky day is not a state of compliance. Nor is the dubious state in which a past effluent problem is not recurring at the moment but the cause of that problem has not been completely and clearly eradicated." (140) Read in this light, it appears that the concurrence would remand to determine whether the defendant had taken remedial steps at the time the suit was brought. Only a showing that a sufficient treatment system was in operation at that time would answer that question in the affirmative. If, at the time suit was brought, no treatment system was in place, and therefore violations could occur intermittently or continuously, the defendants would be in violation. The remedial steps addressed by the concurrence do not seem aimed at removing existing effluent from the stream, but rather preventing future violative discharges by building a treatment system. (141) This reading is also supported by the Gwaltney majority, which noted the prospective nature of citizen suits. (142)

By contrast, the NCWF court held that a violation was continuing if the discharge could be removed. (143) A violation was not remediable and was wholly past when it was subject to "natural dissipation or dispersion." (144) Because the defendants could attempt to remove the fill material from the wetland, the court characterized the situation as one that could be remedied. (145) The NCWF holding effectively modified the Gwaltney concurrence. (146) Where the Gwaltney concurrence focused on the violator's conduct, the NCWF court held that non-compliance exists for as long as a remediable violation remains unremedied. (147)

b. Gwaltney does not support North Carolina Wildlife Federation

The NCWF court's reliance on the consequences of the act to find jurisdiction does not follow the rationale of Gwaltney. Gwaltney's focus on the violator's conduct--whether the violator had installed mechanisms to prevent future violations--is completely different from the emphasis in NCWF on the consequences of the violator's past actions. Applying the NCWF logic to Gwaltney illustrates this difference. In such an analysis, meat-packer Gwaltney had installed remedial measures after notice of the suit. Under NCWF, if any fecal coliform or other pollutant released by the defendant remained in the river before trial, the defendant would still be liable. To borrow the phrasing of NCWF (but not the logic), this result would "emasculate the holding of Gwaltney." (148)

c. Secondary Sources of Support for North Carolina Wildlife Federation

Neither Gwaltney nor the CWA supports the NCWF line of reasoning. Citizen suits, governed by section 505 of the CWA, allow citizens to sue "any person ... alleged to be in violation of an effluent standard or limitation under this chapter." (149) As in NCWF, citizen suits against persons filling wetlands are almost always brought under section 301(a). (150) Under section 301(a), a discharge must occur before a violation may be found. (151) Accepting the rationales stated in Part IV and by Gwaltney, it follows that courts cannot claim subject matter jurisdiction over citizen suits against wholly past violations under the authority of sections 505 (152) and 301(a). (153)

Perhaps recognizing the tenuous nature of its logic, the NCWF court fell back on a public policy justification, noting:

   If citizen-suits were barred merely because any illegal ditching and
   drainage of a wetland tract was completed before it might reasonably be
   discovered, violators would have a powerful incentive to conceal their
   activities from public and private scrutiny--which would lead to serious
   problems in public and private enforcement of the Clean Water Act. (154)

This legitimate public policy argument highlights the criticism that section 301(a) interpretations must contemplate the greater context of the CWA. (155) Where EPA declined to initiate suit against a CWA violator, strict application of the terms of sections 505 and 301 would render the Act's goals less effective and often impossible to attain. (156)

2. Statute of Limitations

The NCWF court reached a similar result on the question of whether the statute of limitations had already run on the claim, though via a distinct methodology. (157) Referring to the five-year statute of limitations set forth for federal actions in 28 U.S.C. [section] 2462, the court distinguished the case before it on the grounds that the plaintiff requested equitable relief and not a "civil fine, penalty or forfeiture." (158) Therefore, the plaintiffs claim did not come under the auspices of 28 U.S.C. [section] 2462.159

a. Distinguishing Jurisdiction from Statutes of Limitation

Having already dismissed the statute of limitations argument, the NCWF court nonetheless went on in dicta to explain how it would have resolved the claim if 28 U.S.C. [section] 2462 did apply, again blending policy with its own interpretation of Gwaltney:

   Even if 28 U.S.C. [[section]] 2462 were to apply to Count III, private
   defendants' statute of limitations argument would fail. It is important to
   note that 28 U.S.C. [[section]] 2462 requires commencement of suit within
   five years from the date the claim first accrued. Private defendants'
   argument implicitly assumes that plaintiffs' claim first accrued from the
   time private defendants actually physically ditched and drained the
   property. This argument overlooks the fact that it has been held that
   claims under the Clean Water Act do not accrue, for statute of limitations
   purposes, until reports documenting the violations have been filed with the
   EPA ... This holding recognizes that it is virtually impossible for the
   public to discover violations until reports have been [filed] with the EPA
   ... To hold that the statute of limitations "begins when the violations
   actually occur, as opposed to when they are discovered, would impede, if
   not foreclose, the remedial effects of the statute." (160)

It is curious to note that NCWF, having already established that a continuing violation existed for the purposes of subject matter jurisdiction, did not extend the doctrine to neatly dismiss the statute of limitations argument. The court failed to explain why it distinguished between jurisdiction and statute of limitations treatment under the continuing violations doctrine. As Joseph Theis suggests, "If there truly was an actionable violation in the former situation, it seems that there would have to be a continuing violation such that the statute of limitations would not bar the claim. Either there is a continuing violation or there is not." (161)

A distinction, according to NCWF and Theis, lies in the claim that gives citizens standing to sue. (162) Because NCWF stated that the enduring consequences give citizens standing, (163) citizen standing will continue ad infinitum unless the fill is removed. By extension, courts potentially will always have subject matter jurisdiction over citizen suits. Theis agrees with NCWF's rationalization: "It does seem clear that whereas impact of the violation is relevant to the citizen suit standing question, the mere ongoing impact from a dredge and fill violation does not constitute a continuing violation for penalty or statute of limitations purposes." (164) Nonetheless, the criticism of Telluride I (165) still warrants consideration: Violations are frequently difficult, if not impossible, to discover before the limitations period has passed. (166)

b. Common-Law Tort Theories Applied to Statutorily Based Claims

The notion that discharges in wetlands are continuing if capable of being remedied borrows from the tort concept of continuation. (167) In nuisance and trespass cases, courts classify the invasion of another's land as one subject to remediation or incapable of being remedied. Theis's characterization of the invasion as continuing applies both to the running of the statute of limitations and the types of damages available. (168) In the classic example, a nuisance that is temporary and thereby capable of remediation tolls the statute of limitations because for each day that the violation is not remedied another violation occurs. (169) This characterization is similar to the continuing violations doctrine argued in NCWF. (170) It is important to note, however, that the permanent/temporary dichotomy in tort law is a court construct and not a product of CWA legislation. Beyond the common law analogy, further support for distinguishing citizen suit jurisdiction from statute of limitations defenses under the continuing violations doctrine is conspicuously lacking in both NCWF and Theis's argument. (171)

E. Penalty Calculations: United States v. Cumberland Farms of Connecticut, Inc.

1. Penalty Calculations Generated with the Continuing Violations Doctrine

The continuing violations doctrine also is applied to penalty calculations. In United States v. Cumberland Farms of Connecticut, Inc. (Cumberland Farms), (172) defendant Cumberland Farms drained and filled a wetland area (173) for conversion to farmland, resulting in the conversion of 674 acres of wetlands to agricultural land. (174) In calculating the number of possible penalties against the defendant, the court did not tie the penalties to the actual days during which Cumberland Farms was filling the wetland, but rather to the total number of days fill remained in the swamp. (175) The court stated, "A day of violation constitutes not only a day in which [the defendant] was actually using a bulldozer or backhoe in the wetland area, but also every day [the defendant] allowed illegal fill material to remain therein." (176)

The tenor of the opinion indicates that while the court could peg the fines to the number of days that the defendant had engaged in fill activities, uncertainty existed as to the exact total number of days fill activities took place. (177) The uncertainty regarding the number of violations likely made it easier for the court to base the penalties on the ascertainable number of days that had transpired since the fill activities took place. Additionally, the egregious nature of the defendant's violations warranted severe penalties. (178) By calculating the total number of days the fill remained in the wetland, the court could impose a larger penalty than it would have been able to by penalizing solely those days fill activities took place. (179)

2. The Inapplicability of the Continuing Violations Doctrine

Section 309 of the CWA provides the pertinent language for penalties calculations and provides that civil penalties are assessable "per day for each violation." (180) Section 309(d) refers to what qualifies as a violation. The section states that "$25,000 per day for each violation" can be assessed against "any person who violates section [301]." (181) As noted, section 301 refers to a violation as a non-permitted discharge. (182) Again, the definition of discharge must play a role in determining the basis upon which penalties must be quantified. (183)

If discharges, as applied by section 301(a), are discrete events that cannot continue after the physical act of discharging has ceased, then there is no basis for applying the continuing violations doctrine to calculations of penalties. If suits against past violations are precluded, penalties for past wrongs also should be precluded. Therefore, however egregious the violations or difficult their penalties are to calculate, under the language of the Act and the logic of Gwaltney, the penalties in Cumberland Farms should have been assessed only for each discharge into the wetland. (184) The result is no different where the court properly has jurisdiction and the suit is within the statute of limitations period: Penalty calculations cannot be based on the continuing violations doctrine. A violation of section 301(a) requires a discharge, and penalties are available only for a violation. (185)

Because violations for discharges into wetlands are premised on discrete actions, the Ninth Circuit's decision in Borden Ranch Partnership v. United States Corps of Engineers (186) appears to correctly apply section 309 of the CWA. (187) The penalty provision of section 309, which allows for "$25,000 per day for each violation," (188) is accurately reflected in the Ninth Circuit's holding that each pass of the deep ripping machinery constituted a distinct violation for which a penalty could be levied. (189) Irrespective of the Ninth Circuit's application of section 309, it is notable that the court, did not address the continuing violations doctrine. The Trident Seafoods dicta explicitly addressed the possible application of a continuing violations analysis to penalty calculations in CWA cases. (190) Perhaps the absence of any mention of Trident Seafoods's discussion of the CWA indicates the court's intent to avoid the continuing violations doctrine. Ultimately, the fact that the Ninth Circuit did not explicitly reject the doctrine undoubtedly means that the doctrine will arise in future Ninth Circuit litigation.

One shortcoming of Borden Ranch Partnership and the discrete violation approach is the apparent necessity of cost-benefit analysis when continuing violations are not applied to penalty calculations. Compounding penalties offers a strong disincentive greater than any benefit that could be derived from illegal wetland filling. To illustrate, if a party decides to convert illegally a wetland to land suitable for the development of a residential subdivision, the limitless accumulation of violations eventually would make any risk of prosecution outweigh the attraction of illegal filling. However, if fines are premised on discrete actions and that same developer requires only two dump-truck loads to fill the wetland, that person could realistically determine that the land's value after it is filled far outweighs the maximum allowable fines for two violations. Against this determination, the Act provides very little disincentive. (191) The same criticism of the Telluride I decision pertaining to the statute of limitations applies to penalty calculations: While continuing violations may be inapplicable, the result of a discrete violation approach hobbles the CWA and cannot be reconciled with the goals of the Act. (192)

F. Recognizing Tension in the Act

Glaring disparities exist in the courts' treatment of illegal wetland fill activities. (193) Most courts applying the continuing violations doctrine have liberally interpreted sections 301, 309, and 505, and have merely incanted NCWF or the concurrence in Gwaltney to explain how their interpretations of those sections agree with the CWA. (194) Under scrutiny, however, these holdings are surprisingly devoid of substance. NCWF cited the Act's remedial purpose to justify giving short shrift to section 301(a). (195) Assuming that NCWF cannot support substantively its interpretation of section 301(a) and what constitutes a discharge, from a statutory standpoint the cases citing NCWF as the foundation of their holding are aberrant conclusions.

Nonetheless, NCWF correctly recognized the conflict between the roots and goals of the CWA and the insufficient means incorporated therein to achieve those goals. (196) The language of section 101 declaring Congress's goals and policy appears to contemplate only eliminating discharges and restoring the integrity of the nation's waters. (197) Congress imbued the Act with two potent means of injunctive relief to ameliorate existing situations, and civil penalties to pay for amelioration and deter future wrongdoers. (198) Implied temporal limitations on civil penalties seem antithetical to the Act-given its purpose. The conflict illustrated by NCWF--when an entity surreptitiously fills a wetland and escapes detection for the limitations period--cannot reasonably lie beyond the penalty powers of the Act.

Similarly, the cost-benefit analysis predicted by Cumberland Farms is an illogical result of the statutory constraints on available penalties. (199) The various Corps and EPA rules promulgated subsequent to codification of the CWA declare a "no net loss policy" toward wetland activities; (200) if deliberate disregard for the penalty provisions makes economic sense, the Act will lose much of its potency. One way to close this loophole is through application of a due diligence discovery rule.

VI. DUE DILIGENCE DISCOVERY DOCTRINE

A. Theis's Proposal

In his article, Theis proposes applying a due diligence discovery rule. (201) Under this approach, the limitations period would not begin to run until the violation accrued; accrual occurs "when the government knew, or in the exercise of due diligence, should have known" of the wetland fill activities. (202) Theis reasons that this approach, borrowed from traditional tort law, is "more consistent with the general purposes of the CWA," and the statutory principle that "statutes of limitations should be strictly construed in favor of the government." (203) This approach opens the way to enforcement against those violators who would otherwise escape liability. (204)

However, application of this doctrine would not affect the total amount of penalties available against a defendant, or affect whether a citizen could bring suit under section 505. (205) A due diligence discovery doctrine is significant only in regard to the statute of limitations. While one court has already taken this approach, (206) the D.C. Circuit erected a substantial stumbling block for future application of the due diligence discovery approach in 3M v. Browner. (207)

B. A Stumbling Block: 3M v. Browner

3M v. Browner arose when 3M failed to file Premanufacture Notices as required by the Toxic Substances Control Act (TSCA) prior to importing a new chemical. (208) EPA assessed civil penalties against 3M, which then petitioned for review, claiming the statute of limitations barred imposition of any penalties. (209)

Rejecting EPA's claim that agency actions are not governed by 28 U.S.C. [section] 2462, the court first determined that the federal statute of limitations applies to administrative penalty actions or proceedings as well as judicial actions. (210) The court found that the agency action brought under TSCA was an action for the enforcement of a civil penalty. (211)

Because the court found that the violations committed by 3M were inherently undiscoverable, (212) EPA then urged the court to apply a general discovery rule to 28 U.S.C. [section] 2462, asserting that its claim accrued not when 3M violated TSCA, but rather when EPA discovered the violations. (213) The court rejected this assertion also. Noting that the instant case was distinguishable from torts cases involving latent injuries, (214) the court applied section 2462 because of the policies behind statutes of limitations. "An agency's failure to detect violations," the court declared, "for whatever reasons, does not avoid the problems of faded memories, lost witnesses and discarded documents in penalty actions brought decades after alleged violations are finally discovered." (215)

The court continued with a thorough examination of the meaning of the term "accrued." Recalling the 1839 antecedent to section 2462 (1839 Act), (216) the court first noted that nine years prior to codification of the 1839 Act, the Supreme Court had expressly rejected any discovery rule in Wilcox v. Plummet. (217) The court noted that according to the 1830 Supreme Court, a claim accrues when the violation occurs. (218) 3M went on to cite subsequent Supreme Court opinions that interpreted the term "accrued" to have the same meaning as that established in Wilcox. (219) United States v. Maillard (220) bore remarkable resemblance to the issue before the D.C. Circuit. In Maillard, the court noted, the government argued for application of the discovery doctrine to a forfeiture claim. (221) The Maillard court rejected any notion that accrual is tolled by the discovery doctrine, stating that "ignorance does not prevent the running of the statute or the accruing of the forfeiture." (222) The D.C. Circuit concluded that historical precedent "`clearly demonstrates that the date of the underlying violation has been accepted without question as the date when the claim first accrued, and, therefore, as the date on which the statute began to run." (223)

The court in 3M limited its review of the continuing violations doctrine to a brief discussion in one footnote. (224) Reviewing the determination by the EPA administrative law judge that failure to submit the notices "would not operate to bar violations which had occurred more than five years prior" the D.C. Circuit court expressed doubt that any claim of continuing violations would hold up. (225) Although skirting the continuing violations issue, the court firmly established that a claim accrues on the date on which the transgression occurred, and that the discovery doctrine is inapplicable in cases not involving latent injuries. (226)

C. 3M's Logic Applies to the CWA

The logical argument created by the 3M court in a TSCA case applies equally to CWA cases. The court stated that "the concern that after the passage of time `evidence has been lost, memories have faded and witnesses have disappeared' pertains equally to factfinding by a court and factfinding by an agency," and therefore would apply equally to EPA actions under the CWA as it would to those under TSCA. (227) Additionally, the D.C. Circuit's definition of "accrued" is a universal definition and is not limited to any specific set of circumstances. Finally, when the Maillard court declined to apply the discovery doctrine, it did not contemplate TSCA at all, but instead established a general rule against use of the doctrine to defeat a statute of limitations. (228)

VII. CONCLUSION

In conclusion, neither the text of the Act itself nor the Supreme Court's interpretation of section 311(a) (229) supports the use of the continuing violations doctrine to obtain jurisdiction over citizen suits, avoid the statute of limitations, or augment penalties. While a due diligence discovery doctrine is viable under common law, 3M and the Supreme Court cases it cites are a substantial barrier to the success of any claim requiring the application of the discovery doctrine. (230) Perhaps more importantly, use of the due diligence discovery doctrine would not compound penalties or allow citizen suits for past violations. The discrete violations approach taken by the Ninth Circuit in Borden Ranch Partnership has at least one of the same shortcomings as the due diligence discovery doctrine: Inevitably, cost-benefit analyses will determine the fate of wetlands on private land. (231)

Even if some courts see fit to apply the continuing violations doctrine or a due diligence discovery doctrine, recent case history, as illustrated in this chapter, makes clear that there is no consensus on the matter and disparate application of those doctrines will never accomplish a national uniformity. To give full effect to Congress's intent and fairly inform all parties involved in wetlands litigation, an amendment to CWA incorporating the continuing violations doctrine must be made.

This amendment would take the approach of NCWF and conventional tort law--when a violation is capable of remediation, it is continuing. Consequently, for each day illegally deposited fill remained in the wetland, a new violation accrues. This, in turn, effectively begins the running of a new limitations period every day, removing any advantage for the undetected violation. This also conveys jurisdiction to the courts to hear citizen suits under the Gwaltney line of reasoning because violators would be in a "continuous" state of violation. (232) Because section 309 allows for substantial penalties for every violation, (233) violators would have a serious incentive to ameliorate any illegal wetlands filling they had caused. Judicial discretion inherent in section 309 would allow the courts to tailor the penalty to ensure that it is commensurate with the nature of the violation. This amendment would benefit the public at large by allowing EPA and citizen groups to pursue restoration of wetland habitat, providing clarity to entities engaged in wetland activities, and harmonizing the goals of the Act with provisions provided therein for its effectuation.

(1) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000). Many classifications of wetlands are not protected by the CWA largely because of the recent Supreme Court decision, Solid Waste Agency v. United States Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), which declared that the Army Corps of Engineers overextended its authority to protect wetlands isolated from navigable waterways. Id. at 162, 174. As a result of the Court's decision, only those wetlands contiguous to a navigable body of water are protected by the CWA. Id. at 168.

(2) Compare United States v. Cumberland Farms of Conn., Inc. (Cumberland Farms), 647 F. Supp. 1166, 1183 (D. Mass. 1986), aff'd, 826 F.2d 1151 (1st Cir. 1987), Sasser v. Administrator, U.S. Envtl. Prot. Agency, 990 F.2d 127, 129 (4th Cir. 1993), United States v. Reaves, 923 F. Supp. 1530, 1534 (M.D. Fla. 1996), Informed Citizens United, Inc. v. USX Corp., 36 F. Supp 2d 375, 377-78 (S.D. Tex. 1999), N.C. Wildlife Fed. v. Woodbury (NCWF), 29 Env't Rep. Cas. (BNA) 1941, 1943 (E.D.N.C. 1989) (all holding generally that a violation of the CWA can occur without a discrete discharge of material into a wetland) with United States v. Telluride Co. (Telluride I), 884 F. Supp. 404, 408 (D. Colo. 1995) rev'd on other grounds, 146 F.3d 1241 (10th Cir. 1998), Bettis v. Town of Ontario, N.Y., 800 F. Supp. 1113, 1119-20 (W.D.N.Y. 1992), 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994) (all holding that violations occur only when there is an actual discharge into a wetland).

(3) Reaves, 923 F. Supp. at 1534; See infra Part. V.A. 1-3.

(4) See 33 U.S.C. [section] 1311(a) (2000) (declaring noncompliant discharges unlawful); id. [section] 1362(12) (defining "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source [and] any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft"); id. [section] 1362 (16) (defining "discharge" as "a discharge of a pollutant, and a discharge of pollutants" when used without qualification); see also infra Part IV.

(5) Cumberland Farms, 647 F. Supp. at 1183 (holding that each day material remains is a day of violation for penalty purposes).

(6) Sasser, 990 F.2d at, 129 (holding that the EPA Administrator has jurisdiction because violation continued after Congress amended CWA to allow Administrator to assess penalties).

(7) Reaves, 923 F. Supp at 1534.

(8) Under the analysis provided by the Supreme Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987), this situation would conceivably be defined as "in violation." See discussion, infra Part V(C).

(9) It is noteworthy that the CWA does not designate any specific time period within which actions must be brought for violations. This lack of an explicit limitations period has led most courts to conclude that the controlling statute of limitations is 28 U.S.C. [section] 2462 (2000), which states:

   Except as otherwise provided by Act of Congress, an action, suit or
   proceeding for the enforcement of any civil fine, penalty, or forfeiture,
   pecuniary or otherwise, shall not be entertained unless commenced within
   five years from the date when the claim first accrued if, within the same
   period, the offender or the property is found within the United States in
   order that proper service may be made thereon.

The lack of an explicit limitations period in the CWA gives rise to statute of limitations defenses.

See discussion infra Part V.

(l0) 33 U.S.C. [section] 1251(a) (2000).

(11) See, e.g., 33 U.S.C. [subsection] 1319, 1321, 1365 (2000) (describing various administrative, judicial, and citizen courses of action).

(12) Telluride I, 884 F. Supp. 404 (D. Colo. 1995) rev'd on other grounds, 146 F.3d 1241 (10th Cir. 1998).

(13) Borden Ranch P'ship v. United States Army Corps of Engineers, 261 F.3d 810, 812 (9th Cir. 2001), cert. granted, 70 U.S.L.W. 3562 (U.S. June 10, 2002) (No. 01-1243).

(14) Id. at 818.

(15) Id. at 816-18.

(16) 42 U.S.C. [subsection] 7401-7671q (2000); United States v. Trident Seafoods Corp., 60 F.3d 556, 558-(59) (9th Cir. 1995), appeal after remand, No. 94-35989, 95-35074 (9th Cir. Aug. 7, 1996).

(17) 60 F.3d 556 (9th Cir. 1995).

(18) Id. at 558.

(19) Id.

(20) Id.

(21) Informed Citizen United, Inc. v. USX Corp., 36 F. Supp. 2d 375 (S.D. Tex. 1999) (finding continuing violation where the effects are not remediated).

(22) See infra n. 201 and accompanying text, which describes Joseph Theis's proposal that a violation should be deemed to accrue "when the government knew, or in the exercise of due diligence, should have known" of the wetland fill activities.

(23) See, e.g., ROBERT FROST, Spring Pools, in THE ROAD NOT TAKEN 174, 174 (1962).

(24) See, e.g., CREEDENCE CLEARWATER REVIVAL, Born on a Bayou, on BAYOU COUNTRY (Fantasy 1969).

(25) See, e.g., THE AFRICAN QUEEN (United Artists 1951).

(26) See, e.g., The Blue Boat by Winslow Homer (1892).

(27) CLARE SHINE & CYRILLE DE KLEMM, WETLANDS, WATER AND THE LAW 3 (1999).

(28) NATIONAL RESEARCH COUNCIL, COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT 22-27 (2001).

(29) Id. at 43.

(30) UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, FINAL ENVIRONMENTAL IMPACT STATEMENT, ACREAGE LIMITATION AND WATER CONSERVATION RULES AND REGULATIONS 3-71 (1996).

(31) SHINE & DE KLEMM, supra note 27, at 9.

(32) In Oregon, for example, one of many such refuges is the Bandon Marsh National Wildlife Refuge near the southern coast. UNITED STATES FISH AND WILDLIFE SERVICE, OREGON COAST NATIONAL WILDLIFE REFUGES 10 (2000), available at http://pacific.fws.gov/refuges.

(33) Id.

(34) NATIONAL RESEARCH COUNCIL, supra note 28, at 12.

(35) See The Swamp Lands Acts of 1849, 1850, and 1860 (discussing the federal government's intent to give swamp lands within state borders to those states because the lands were uncultivable). The draining and filling of western wetlands for purposes of reclamation was a primary objective of these laws. MARK S. DENNISON & JAMES F. BERRY, WETLANDS: GUIDE TO SCIENCE, LAW, AND TECHNOLOGY 70 (1993).

(36) NATIONAL RESEARCH COUNCIL, Supra note 28, at 12.

(37) Id. (noting that wetlands act as a filter, trapping sediments).

(38) Mark A. Chertok, Federal Regulation of Wetlands, SE98 A.L.I.-A.B.A. 715, 717 (2000).

(39) NATIONAL RESEARCH COUNCIL, supra note 28, at 1.

(40) Id. at 11.

(41) Michael C, Blumm & D. Bernard Zaleha, Federal Wetlands Protection Under the Clean Water Act: Regulatory Ambivalence, Intergovernmental Tension, and a Call for Reform, 60 U. COLO. L. REV. 695, 697 (1989).

(42) UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, supra note 30, at 3-71.

(43) NATIONAL RESEARCH COUNCIL, supra note 28, at 11.

(44) U.S. FISH AND WILDLIFE SERVICE, STATUS AND TRENDS OF WETLANDS IN THE COTERMINOUS UNITED STATES I (1991).

(45) Id.

(46) NATIONAL RESEARCH COUNCIL, supra note 28, at 18.

(47) SHINE & DE KLEMM, supra note 27, at 9.

(48) Neil J. Barker, Sections 9 and 10 of the Rivers and Harbors Act of 1899: Potent Tools for Environmental Protection, 6 ECOLOGY L.Q. 109, 111 (1976).

(49) Id. at 114.

(50) The Rivers and Harbors Act (RHA) of 1890, Act of Sept. 19, 1890, ch. 907, [subsection] 7 & 10, 26 Stat. 455. Section 9, and section 10, 33 U.S.C. [section] 403 (2000) of the Act, incorporated in 1899, expanded federal governmental protection of waterways by requiring congressional approval before construction of a "bridge, causeway, dam, or dike" in navigable waterways could begin, and before fill could be deposited in "any haven, harbor, canal, lake, harbor of refuge, or inclosure [sic] within the limits ... of the channel of any navigable water of the United States[.]"33 U.S.C. [subsection] 401,403 (2000). Sections 9 & 10 gave the federal government authority to proscribe activities in navigable waters, "regardless of whether [they] would actually obstruct or impair navigation." Id.; Barker, supra note 48, at 114.

(51) Act of June 30, 1948, ch. 750, 62 Stat. 1155.

(52) Frank J. Barry, The Evolution of the Enforcement Provisions of the Federal Water Pollution Control Act, 68 MICH. L. REV. 1103, 1121 (1970). Lack of federal enforcement persisted until 1970; however, monetary penalties enacted in 1970 pertained solely to the illegal discharge of oil into navigable waterways. Water and Environmental Quality Improvement Act of 1970, Pub. L. No. 91-224, 84 Stat. 114 (adding sections 11(b)(4) and 11(b)(5) to the FWPCA to provide monetary penalties for oil in navigable waterways only).

(53) 33 C.F.R. [section] 328.3(a)(3) (1999) (stating that the term "waters of the United States" includes "waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds ..."); SWANCC, 531 U.S. 159, 166-67 (2001) (describing the shift in power, between Congress and the states, effected by CWA).

(54) 33 U.S.C. [section] 1342(a)(1) (2000); Theodore L. Garrett, Overview of the Clean Water Act, in THE CLEAN WATER ACT HANDBOOK 5 (Parthenia B. Evans ed., 1994).

(55) Garrett, supra note 54, at 8.

(56) Water and Environmental Quality Improvement Act of 1970, Pub. L. No. 91-224, 84 Stat. 114.

(57) Elimination of discharge of pollutants by 1985 and restoration and maintenance of the chemical, physical, and biological integrity of the Nation's waters. Id. [section] 101.

(58) See, e.g., Senate Consideration of the Report of the Conference Committee, remarks of Sen. Muskie, reprinted in CONGRESSIONAL RESEARCH SERVICE OF THE LIBRARY OF CONGRESS, 93d CONG., 1ST SESS., A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972 [hereinafter LEGISLATIVE HISTORY], 164 (stating that the objective of the Act "is not merely the pious declaration[] [of] Congress ... on the contrary, this is literally a life or death proposition for the Nation"); id. at 208, remarks of Sen. Tunney (noting two phases of the Act in which the first phase limits establishes limits and the second phase initiates a national effort to eliminate discharges into navigable waters).

(59) Id. at 178 (discussing Congress's intent to preclude sewage treatment effluent from under this categorization, limitations on oil and gas injection regulations, and a broad interpretation to be given to the term "navigable waters"). (60) Id.

(61) See, e.g., id. at 179 (remarks of Sen. Muskie that "the 60-day [notice] provision was not intended ... to cut off the right of action a citizen may have to violations that took place 60 days earlier but which may not have been continuous" and that "a citizen has a right ... to bring an action for an appropriate remedy in the case of any person who is alleged to be, or to have been, in violation, whether the violation be a continuous one, or an occasional or sporadic one").

(62) Water Resources Development Act, codified at 33 U.S.C. [section] 2317 (2000).

(63) NATIONAL RESEARCH COUNCIL, supra note 28, at 66.

(64) EPA has the power to initiate proceedings for equitable relief against parties in violation of the CWA for acts committed in the past. In the wetlands context, this relief usually takes the form of injunctions requiring the removal of fill from a wetland or injunctions to create alternative wetlands.

(65) While numerous acts constitute violations of the CWA, only violations of section 301 are relevant to the continuing violations doctrine in the context of wetland fill activities. 33 U.S.C. [section] 1311(a) (2000).

(66) Id.

(67) Id.

(68) 33 U.S.C. [section] 1362(16). The Ninth Circuit has had the occasion to deliberate the language of section 301(a). In Oregon Natural Desert Association v. Dombeck (ONDA), a citizen group contended that the language of section 301(a), characterizing a discharge as an act that "includes a discharge of a pollutant ..." is not exclusive of other discharges (i.e., non-point source pollution). 172 F.3d 1092, 1097 (9th Cir. 1998) (emphasis added). The Ninth Circuit reversed the Oregon district court and held that a discharge does not include nonpoint source pollution.

(69) WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY 517-18 (2d ed. 1983).

(70) 33 U.S.C. [section] 1362(12) (2000).

(71) Id. [section] 1362(14).

(72) Reaves, 923 F. Supp, 1530, 1534 (M.D. Fla. 1996).

(73) 33 U.S.C. [section] 1365(a)(1) (2000). Citizens also may bring suit against the EPA Administrator for failure to perform non-discretionary duties under the Act, 33 U.S.C. [section] 505(a)(2), but that power is beyond the scope of this paper.

(74) 36 F. Supp. 2d 375 (S.D. Tex. 1999).

(75) Id. at 377.

(76) Id.

(77) See id., quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987) (interpreting "to be in violation" to require that citizen-plaintiffs allege a state of either continuous or intermittent violation).

(78) 33 U.S.C. [section] 1365(a)(1) (2000).

(79) See Telluride, 884 F. Supp. 404, 408 (D. Colo. 1995), rev'd on other grounds, 146 F.3d 1241 (10th Cir. 1998) (disallowing suit where wetlands fill occurred more than five years prior to the government's request for injunctive relief and civil penalties).

(80) See Reaves, 923 F. Supp. 1530, 1534 (M.D. Fla. 1996) (denying defendant's summary judgment motion on grounds that an unpermitted discharge was a continuing violation for limitations purposes).

(81) Id. at 1534.

(82) Id.

(83) Recently, the maximum fine available per violation under the Act was augmented from $25,000 per violation to $27,500 per violation. Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. [subsection] 19.2, 19.4 (2001).

(84) 647 F. Supp. 1166 (D. Mass. 1986).

(85) Id.

(86) Id. at 1183.

(87) 884 F. Supp. 404 (D. Colo. 1995) rev'd on other grounds, 146 F.3d 1241 (10th Cir. 1998).

(88) Id.

(89) Id.

(90) Telluride I, 884 F. Supp. at 405.

(91) Id.

(92) Id. at 408.

(93) Id.

(94) 17 F.3d 1453 (D.C. Cir. 1994).

(95) Id. at 1460-63.

(96) As discussed in Part III supra.

(97) Telluride I, 884 F. Supp. at 408.

(98) See Joseph G. Theis, The Application of the Federal Five-year Statute of Limitations for Penalty Actions to Wetlands Violations Under the Clean Water Act, 24 N. KY. L. REV. 1, 14-17 (1996) (asserting the need to contemplate the greater context in which section 301(a) is found).

(99) 33 U.S.C. [section] 1251(a) (2000).

(100) See LEGISLATIVE HISTORY, supra note 58, at 164 (stating the objective of the Act as "not merely the pious declaration[] of Congress ... on the contrary, this is literally a life or death proposition for the Nation); id. at 208, remarks of Sen. Tunney (noting two phases of the Act in which the first phase establishes limits and the second phase initiates a national effort to eliminate discharges into navigable waters).

(101)Supra note 9 and accompanying text (referencing the statutory language of 28 U.S.C. [section] 2462).

(102) See, e.g., United States v. Banks, 115 F.3d 916, 918 (11th Cir. 1997) (stating "[b]ecause the CWA does not specify a limitations period for enforcement actions ... the default limitations provisions of 28 U.S.C. [section] 2462 apply to the government's actions for civil fines or penalties"); Reaves, 923 F. Supp. 1530, 1533 (M.D. Fla. 1996) (noting that the five-year statute of limitations applies to the government's action for civil fines).

(103) The Tenth Circuit has made a convincing and generally accepted argument that equitable relief is not controlled by 28 U.S.C. [section] 2462 because equitable relief is not a "civil fine or penalty"--the only remedies contemplated by that section. The Tenth Circuit added, however, that non-monetary penalties unrelated to or in excess of the damages caused by a defendant were governed by the [section] 2462 limitations period. Telluride II, 146 F.3d at 1249 (citing Hartford-Empire Co. v. United States, 323 U.S. 386, 435 (1945)); see also NCWF, 29 Env't Rep. Cas. (BNA) 1941, 1944 (E.D.N.C. 1989) (stating that 28 U.S.C. [section] 2462 is inapplicable to equitable relief).

(104) See, e.g., Reaves, 923 F. Supp. at 1534 (declining to dismiss CWA action for fill activity that occurred 13 years before the action was filed).

(105) 484 U.S. 49 (1987).

(106) 33 U.S.C. [section] 1365(a) (2000).

(107) Gwaltney, 484 U.S. at 54.

(108) Id. at 53.

(109) Id. at 55.

(110) Id. at 57.

(111) Id.

(112) Id. at 59.

(113) Id. at 60. Institution of a CWA action under section 505 requires the citizen to provide the opposing party with a sixty-day notice of intent to file suit. Presumably, this notice period would allow the defendant to come into compliance with the Act. Federal Water Pollution Control Act, 33 U.S.C. [section] 1365(b) (2000).

(114) Gwaltney, 484 U.S. at 60.

(115) Id. at 61.

(116) Id. (citing Water Pollution Control Legislation: Hearings Before the Subcomm. on Air and Water Pollution of the Senate Committee on Public Works, 92d Cong., 1st Sess., pt. 1, 114 (1971) (staff analysis of S. 523) ("Any person may sue a polluter to abate a violation ...")); id., pt. 2, at 707 (Statement of Sen. Eagleton) ("Citizen suits ... are brought for the purpose of abating pollution"); H.R. REP. No. 92-911, p. 407 (1972) (additional views of Reps. Abzug and Rangel) ("[C]itizens may institute suits against polluters for the purpose of halting that pollution"); 118 CONG. REC. 33693 (1972) (Sen. Muskie) ("Citizen suits can be brought to enforce against both continuous and intermittent violations"); id. at 33717 (Sen. Bayh) ("These sorts of citizen suits--in which a citizen can obtain an injunction but cannot obtain money damages for himself--are a very useful additional tool in enforcing environmental protection laws.").

(117) See supra note 58 and accompanying text (citing legislative history of the CWA).

(118) Gwaltney, 484 U.S. at 62.

(119) 118 CONG. REC. 33700 (1972) (emphasis added).

(120) Gwaltney, 484 U.S. at 62.

(121) Id. at 64.

(122) WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY 396 (2d ed. 1983).

(123) Gwaltney, 484 U.S. at 57.

(124) 29 Env't Rep. Cas. (BNA)1941 (E.D.N.C. 1989).

(125) Id. at 1942.

(126) Id.

(127) 33 U.S.C. [section] 1365 (2000).

(128) NCWF, 29 Env't Rep. Cas. (BNA) at 1942; 33 U.S.C. [section] 1344 (2000).

(129) NCWF, 29 Env't Rep. Cas. (BNA) at 1942.

(130) Id. at 1942 (quoting Gwaltney, 484 U.S. 49, 64 (1987)).

(131) Id. at 1943.

(132) Id. (emphasis in original).

(133) Id.

(134) Gwaltney, 484 U.S. 49, 67-71 (1987).

(135) NCWF, 29 Env't Rep. Cas. (BNA) at 1942-43 (quoting Gwaltney, 484 U.S. 49, 64 (1987)).

(136) Gwaltney, 484 U.S. at 69.

(137) Id.

(138) Id. at 69-70.

(139) Id. at 53.

(140) Id. at 69 (Scalia, J., concurring).

(141) Id.

(142) Id. at 59.

(143) NCWF, 29 Env't Rep. Cas. (BNA) 1941, 1943 (E.D.N.C. 1989).

(144) Id.

(145) Id.

(146) The Gwaltney concurrence contended that non-compliance existed when a person continually violated the CWA by being unable to prevent discharge violations and therefore unable to meet effluent limitations. Gwaltney, 484 U.S. 49, 67-71 (1987) (Scalia, J., concurring).

(147) NCWF, 29 Env't Rep. Cas. (BNA) 1941, 1943 (E.D.N.C. 1989).

(148) Id.

(149) 33 U.S.C. [section] 505(a) (2000).

(150) A convincing argument has been made that citizens can also bring suit for the enforcement of section 404 (which governs wetlands) using section 505. For a complete treatment of this possibility, see Phillip M. Bender, Slowing the Net Loss of Wetlands: Citizen Suit Enforcement oo Clean Water Act [section] 404 Permit Violations, 27 ENVTL. L. 245 (1997).

(151) See Part IV, supra.

(152) 33 U.S.C. [section] 505 (2000).

(153) Id. [subsection] 1365, 1311(a).

(154) NCWF, 29 Env't Rep. Cas. (BNA) 1941, 1943 (E.D.N.C. 1989).

(155) See Theis, supra note 98, at 14-17 (arguing that interpretations of section 301(a) must consider the greater context of CWA).

(156) See 33 U.S.C. [section] 1251 (2000) (declaring the goals and policies of the CWA).

(157) NCWF, 29 Env't Rep. Cas. (BNA) at 1944.

(158) Id.

(159) This is the same rationale applied by the Tenth Circuit in Telluride II, 146 F.3d 1241, 1245 (10th Cir. 1998).

(160) NCWF, 29 Env't Rep. Cas. (BNA) at 1944 (quoting Atlantic States Legal Found. v. A1 Tech Specialty Steel Corp., 635 F.Supp. 284, 287-88 (N.D.N.Y. 1986)) (emphasis in NCWF); but see 3M, 17 F.3d 1453 (D.C. Cir. 1994) (foreclosing the applicability of the discovery doctrine where there is no latent injury).

(161) Theis, supra note 98, at 16. Theis asked this question in reference to the Telluride I court's treatment of continuing violations in the context of statute of limitations. The District of Colorado distinguished Sasser (holding that the continuing presence of fill in wetlands conveyed subject matter jurisdiction to a court to hear citizen suits) from Telluride I because Sasser asked whether EPA "was authorized to prosecute such a claim at all," whereas Telluride I asserted that the time to bring EPA's claim had expired. Theis astutely characterizes the Telluride I court's logic as "not obvious." Id. at 15-17, (quoting Telluride I, 884 F.Supp. 404, 407 (D. Colo. 1995)).

(162) NCWF, 29 Env't Rep. Cas. (BNA) at 1943; Theis, supra note 98, at 16.

(163) Id.

(164) Theis addresses statute of limitations concerns by applying a due diligence discovery doctrine, but as discussed infra Part VI, the likelihood of that doctrine ever being applied is doubtful. Theis, supra note 98, at 17.

(165) Part V.B.3. supra.

(166) Id.

(167) WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW [section] 2.9 at 29-30 (Supp. 1984).

(168) See GERALD W. BOSTON & M. STUART MADDEN, LAW OF ENVIRONMENTAL AND TOXIC TORTS, 239-40 (2d ed. 2001). The types of damages available generally fall into either a diminution of property value category or a cost of remediation, neither of which is relevant to this paper. Id.

(169) Mangini v. Aerojet-General Corporation, 230 Cal. App. 3d 1125, 1142-45 (Cal. Ct. App. 1991).

(170) NCWF, 29 Env't Rep. Cas. (BNA) 1941 (E.D.N.C. 1989).

(171) Theis limited support for his argument to citing the NCWF argument; the evidence led him to conclude, "[f]or citizen suit purposes, a violation may arguably be considered continuing, if the effects of the violation can still be remediated." Theis, supra note 98, at 17.

(172) 647 F. Supp. 1166 (D. Mass, 1986).

(173) The "Great Cedar Swamp." Id. at 1170.

(174) Id. at 1170-73.

(175) Id. at 1184-85.

(176) Id. at 1183, citing United States v. Tull, 615 F. Supp. 610, 626 (E.D. Va. 1983), aff'd 769 F.2d 182 (4th Cir. 1985), cert. granted, 476 U.S. 1139 (1986), rev'd on other grounds, 481 U.S. 412 (1987).

(177) Id. at 1186.

(178) Id. The court went so far as to classify the penalties as quasi-punitive in nature, stating that they would "deter" similar future conduct by other entities. Id.

(179) Id.

(180) 33 U.S.C. [section] 1319 (2000).

(181) Id.

(182) See discussion supra note 68 and accompanying text.

(183) See discussion, supra Part IV; Borden Ranch P'ship, 261 F.3d 810, 815 (9th Cir. 2001).

(184) A bulldozer is considered a point source for purposes of section 502(14). Borden Ranch P'ship, 261 F.3d at 815. Interestingly, the violations committed by defendant Cumberland might have been classified as continuous or intermittent under the Gwaltney rubric. Had a defense been raised of either a lack of jurisdiction to hear a citizen suit or a running of the statute of limitations, the continuous nature of Cumberland's actions after the Corps issued a cease and desist order probably still would have conveyed jurisdiction over a live controversy. However, Gwaltney constructed the continuous or intermittent analysis to determine whether a controversy was living, or wholly past; and once jurisdiction is found to exist, a separate examination of the number of violations is required to determine the total penalties available.

(185) 33 U.S.C. [section] 1311(a) (2000).

(186) 261 F.3d 810 (9th Cir. 2001).

(187) 33 U.S.C. [section] 1319 (2000).

(188) Deep tipping is a process by which large prongs are dragged behind a bulldozer or tractor through the earth, perforating the restrictive layers at the bottom of the wetlands. Once these blades have perforated the restrictive layer in the wetlands, the water drains from the wetland and any crop which is planted in the space above the restrictive layer is now able to send roots deep into the soil.

(189) Borden Ranch P'ship, 261 F.3d at 818.

(190) Trident Seafoods, 60 F.3d 556, 558 (9th Cir. 1995), appeal after remand, No. 94-35989, 95-35074 (9th Cir. Aug. 7, 1996).

(191) Criminal prosecution is available to EPA, but not for actions brought by citizens. Furthermore, criminal prosecution for the illegal filling of wetlands is relatively rare. See EPA ENFORCEMENT REPORT 1999, available at http://es.epa.gov/oeca/fy99accomp_body.pdf.

(192) NCWF, 29 Env't Rep. Cas. (BNA) 1941, 1943 (1989).

(193) Compare Telluride I, 884 F. Supp. 404 (D. Colo. 1995) (treating a discharge as a discrete event) with Orange Env't, Inc. v. County of Orange, 923 F. Supp. 529 (S.D.N.Y. 1996) and Sasser, 990 F.2d 127 (4th Cir. 1993) (holding that discharges are of a character that creates new violations daily).

(194) See, e.g., Id.; Informed Citizens United, 36 F. Supp. 2d 375 (S.D. Tex. 1999); Cumberland Farms, 647 F. Supp. 1166 (D. Mass. 1986).

(195) NCWF, 29 Env't Rep. Cas. (BNA) 1941, 1943 (E.D.N.C. 1989).

(196) Id.

(197) 33 U.S.C. [section] 1311(a) (2000).

(198) Id. [section] 1319 (2000); see also Gwaltney, 484 U.S. 49, 53 (1987) (stating that "the Administrator's enforcement arsenal includes administrative, civil, and criminal sanctions").

(199) Cumberland Farms, 647 F. Supp. 1166 (D. Mass. 1986).

(200) 40 C.F.R. [section] 1508.20, 57 Fed. Reg. 52,716 (Nov. 4, 1992) withdrawn 59 Fed. Reg. 26162 (May 19, 1994); Memorandum of Agreement Concerning the Determination of the Geographic Jurisdiction of the Section 404 Program and the Application of the Exemptions under [section] 404(f) of the Clean Water Act; Memorandum of Agreement Concerning Federal Enforcement for the Section 404 Program of the Clean Water Act; Section 404, Enforcement: Memorandum of Agreement Procedures Regarding the Applicability of Previously Issued Corps Permits (January 19, 1989).

(201) Theis, supra note 98, at 3.

(202) Id. at 26 n.146.

(203) Id. at 2.

(204) Id. at 24.

(205) 33 U.S.C. [section] 1365 (2000). Because the due diligence discovery doctrine would only be applied against past violations, and the Supreme Court has signaled that citizen suits are "primarily forward-looking" and improper for wholly past violations, courts would be unlikely to have subject matter jurisdiction over section 505 citizen suits. See Gwaltney, 484 U.S. 49, 59 (1987).

(206) See United States v. Windward Properties, Inc., 821 F. Supp. 690 (N.D. Ga. 1993), abrogated by United States v. Banks, 115 F.3d 916 (11th Cir. 1997), abrogation recognized by Telluride II, 146 F.3d 1241 (10th Cir. 1998).

(207) 17 F.3d 1453 (D.C. Cir. 1994).

(208) Toxic Substances Control Act, 15 U.S.C. [subsection] 2601-2692 (2000).

(209) 3M, 17 F.3d at 1454-55.

(210) Id. at 1457, 1459.

(211) Id. at 1459.

(212) Id. at 1459 n. 15.

(213) Id. at 1460.

(214) Id.

(215) Id. at 1461.

(216) Act of Feb. 28, 1839, ch. 36, [section] 4, 5 Stat. 321, 322.

(217) 3M, 17 F.3d at 1462 (citing Wilcox v. Plummer, 29 U.S. (4 Pet.) 172, 181 (1830)).

(218) Id.

(219) Id. (citing Meredith v. United States, 38 U.S. (13 Pet.) 486, 493-94 (1839); Bank of the United States v. Daniel, 37 U.S. (12 Pet.) 32, 56 (1838); Evans v. Gee, 36 U.S. (11 Pet.) 80, 84 (1837); New York v. Miln, 36 U.S. (11 Pet.) 102, 144 (1837); Montgomery v. Hernandez, 25 U.S. (12 Wheat.) 129, 133-34 (1827)).

(220) 26 F. Cas. 1140 (S.D.N.Y. 1871).

(221) 3M 17 F.3 1453, 1462 (D.C. Cir. 1994) (citing Maillard, 26 F. Cas. at 1143).

(222) Id. (quoting Maillard, 26 F. Cas. at 1143).

(223) Id. at 1462 (quoting United States v. Core Lab., 759 F.2d 480, 482 (5th Cir. 1985)).

(224) Id. at 1455 n.2.

(225) Id.

(226) Id.

(227) Id. at 1457.

(228) Maillard, 26 F. Cas. at 1143.

(229) 33 U.S.C. [section] 1311(a) (2000).

(230) 3M, 17 F.3d 1453, 1461 (D.C. Cir. 1994).

(231) Borden Ranch P'ship, 261 F.3d 810, 817 (9th Cir. 2001), cert. granted, 70 U.S.L.W. 3562 (U.S. June 10, 2002) (No. 01-1243).

(232) Gwaltney, 484 U.S. 49, 64 (1987).

(233) 33 U.S.C. [section] 1319 (2000).

DAVID S. FOSTER *

* Associate Editor, Environmental Law, 2002-2003; J.D. and Certificate in Environmental and Natural Resources Law expected 2003, Lewis & Clark Law School; B.A. 1992, University of Oregon. The author thanks Professor Craig Johnston for his guidance and Karl Anuta whose curiosity served as the impetus for this analysis. The author also thanks Erik C. Swallow, 2001-2002 Ninth Circuit Review Editor, Environmental Law, for his comments.