United States District Court, S.D. Ohio, Western Division
ENTRY AND ORDER DENYING DEFENDANTS' MOTION FOR
JUDGMENT ON THE PLEADINGS (DOC. 15)
M. ROSE UNITED STATES DISTRICT JUDGE.
case is before the Court on the Motion for Judgment on the
Pleadings Seeking Dismissal of Count One of Plaintiffs'
First Amended Complaint and Dismissal of Counts II and III
for Lack of Jurisdiction (Doc. 15) (the “Motion”)
of Defendants Mark J. Stucke and Mary Anne E. Stucke (the
“Defendants”), pursuant to Fed.R.Civ.P. 12(c).
Specifically, the Defendants move for judgment on the
pleadings on (1) Count One of the Amended Complaint
(“Violation of the Clean Water Act - Unauthorized
discharges of dredged and/or fill materials”) on
various grounds, and (2) Counts Two and Three of the Amended
Complaint (state law claims for Private Nuisance and
Trespass, respectively) on the ground that this Court should
decline to exercise supplemental jurisdiction over those two
claims. Plaintiffs Aaron Ward and Betsy Ward (the
“Plaintiffs”) filed a memorandum in opposition to
the Motion (Doc. 17) (the “Opposition”), and the
Defendants filed a reply memorandum in support of the Motion
(Doc. 18) (the “Reply”). The motion is fully
briefed and ripe for review. (Docs. 15, 17, 18.) For the
reasons discussed below, the Court DENIES
SUMMARIZED ALLEGATIONS FROM THE AMENDED
bring a citizen suit under the Clean Water Act, 33 U.S.C.
§ 1251 et seq. (the “CWA”),
pursuant to 33 U.S.C. § 1365. In Count One of the
Amended Complaint, they claim that the Defendants violated 33
U.S.C. § 1311 and 33 U.S.C. § 1344 (i.e.,
Sections 301 and 404 of the CWA) by making unauthorized
discharges of dredged and/or fill material into waters of the
United States. (See Am. Cmplt. ¶¶ 74-86.)
In addition, Plaintiffs bring two state law claims: private
nuisance and trespass. (Id. at ¶¶ 87-108.)
following four paragraphs are an abbreviated summary of the
allegations in the Amended Complaint (Doc. 13). The Court
stresses that the following are merely allegations
and recognizes that Defendants disagree with many of
Plaintiffs' allegations. The case is still at a very
early stage and (to the Court's knowledge) no formal
discovery has taken place, the parties have not held a Rule
26(f) conference, and the Court has not scheduled an initial
pretrial conference with the parties.
about July 13, 2015, a heavy rain event occurred that caused
the Plaintiffs' land to flood. Plaintiffs were forced to
hastily evacuate their home, wading through chest-high water
with their three children in order to escape. Their home was
completely destroyed, along with personal belongings in the
home and two cars parked inside the garage. Plaintiffs could
not live in their home for the subsequent eight months.
However, they were able to make their home habitable again
and live there now.
property has continued to flood during storms and heavy rain
events. Such flooding-as well as the flooding that occurred
on or about July 13, 2015-is alleged to be the result of the
Defendants' earlier land-altering activities that changed
the flow of surface and subsurface water. Those alleged
land-altering activities included that (1) sometime in the
1990s, Defendants and/or their predecessor in ownership
installed two grassed waterway channels on Defendants'
land that collect and divert water to a private ditch and
stream running along Plaintiffs' property that are part
of the headwaters of Boyd Creek; and (2) sometime in the fall of
2014, Defendants engaged in a construction project involving
excavating some of their land (including some wetland areas)
and installing drainage tile throughout their land to drain
the natural waterlogged conditions. The drainage tiles alter
the natural wet or waterlogged conditions on the land, and
they divert infiltrated surface waters and subsurface waters
into the private ditch and stream. The land-altering
activities involved Defendants' use of mechanized
land-clearing equipment or earth moving equipment to
discharge dredged material or fill material in and around the
land is adjacent to Plaintiffs' property and residence.
However, from the time that Plaintiffs moved into their
residence in 2004 until July 13, 2015, they had never
experienced flooding on their property. Prior to
Defendants' excavation of the wetland areas and
installation of the drainage tiles, those areas would collect
and hold water during significant rain events, helping to
moderate flood flows and acting as a biological filter prior
to water flowing downstream into Boyd Creek.
the Defendants nor their predecessors ever obtained
authorization from the Army Corps of Engineers, the United
States Environmental Protection Agency, or the Ohio
Environmental Protection Agency to install the two grassed
waterway channels. Also, Defendants' land-altering
activities were not authorized by a permit or authorization
issued by the Corps or any other agency pursuant to Section
404(a) of the CWA (33 U.S.C. § 1344(a)). In addition to
violating the federal CWA, Plaintiffs claim that Defendants
altered their land in an unreasonable manner that caused-and
will continue to cause-harm to Plaintiffs' health and
property, thus constituting a continuing private nuisance and
continuing trespass under Ohio law. Dirt, silt, biological
material, road runoff, and other pollutants within discharges
from Defendants' land have entered and remain on
STANDARD OF REVIEW
the pleadings are closed - but early enough not to delay
trial - a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). Courts apply the same
analysis to motions for judgment on the pleadings under Rule
12(c) as they apply to motions to dismiss under Federal Rules
of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v.
Nat'l Collegiate Athletic Ass'n, 623 F.3d 281,
284 (6th Cir. 2010). The Sixth Circuit “has applied the
now familiar pleadings requirements in Twombly and
Iqbal to Rule 12(c) motions.” Patterson v.
Novartis Pharms. Corp., 451 Fed.Appx. 495, 497 (6th Cir.
party moves for judgment on the pleadings, “[a]ll
well-pleaded material allegations of the pleadings of the
opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly
entitled to judgment as a matter of law.” Hindel v.
Husted, 875 F.3d 344, 346 (6th Cir. 2017) (internal
quotation marks omitted). However, the court “need not
accept as true legal conclusions or unwarranted factual
inferences.” JPMorgan Case Bank, N.A. v.
Winget, 510 F.3d 577, 582 (6th Cir. 2007).
survive a Rule 12(c) motion, a complaint must contain direct
or inferential allegations respecting all the material
elements under some viable legal theory.”
Hindel, 875 F.3d at 346-47 (internal quotation marks
omitted), citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[A] complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
(internal quotation marks omitted)). “[T]he plaintiff
must provide the grounds for its entitlement to relief, and
that ‘requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.'” Albrecht v. Treon, 617 F.3d 890,
893 (6th Cir. 2010) (internal citation omitted), quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“A plaintiff falls short if [the plaintiff] pleads
facts ‘merely consistent with a defendant's
liability' or if the alleged facts do not ‘permit
the court to infer more than the mere possibility of
misconduct.'” Id., quoting Iqbal,
556 U.S. at 678-79. See also Twombly, 550 U.S. at
557 (a complaint will not withstand a motion to dismiss if it
offers only “naked assertion[s]” without
“further factual enhancement”).
addressing a motion for judgment on the pleadings, a court
considers the pleadings, which consist of the complaint, the
answer, and any written instruments attached as exhibits.
See Fed. R. Civ. P. 12(c); Fed.R.Civ.P. 7(a)
(defining “pleadings” to include both the
complaint and the answer); Fed. R. Civ P. 10(c) (stating that
“[a] copy of a written instrument that is an exhibit to
a pleading is part of the pleading for all purposes.”).
Although allegations in the complaint are the primary focus
in assessing a Rule 12(c) motion, a court may also take into
account “matters of public record, orders, [and] items
appearing in the record of the case.” Barany-Snyder
v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008).
Additionally, a court may consider exhibits attached to a
motion for judgment on the pleadings “so long as they
are referred to in the Complaint and are central to the
claims contained therein.” Brent v. Wayne Cty.
Dept. of Human Servs., 901 F.3d 656, 695 (6th Cir.
support of their Motion, Defendants make five arguments for
why Plaintiffs' CWA claim fails: “(1) the
installation of the drain tiles and surface drains does not
amount to a ‘discharge'; (2) the dredged or fill
material exemption pursuant to 33 [U.S.C.] § 1344(f)
applies; (3) the ‘agricultural stormwater
discharge' exemption under 33 [U.S.C.] § 1362(14)
applies; (4) the ‘waters of the United States,' as
described in 33 [U.S.C.] § 1362(7) are not implicated
here; and (5) the CWA does not regulate increased volume or
rate of discharge.” (Doc. 15 at PAGEID # 183.) After
setting forth some background regarding the CWA, the Court
will address each of these arguments.
also argue that, if this Court dismisses the federal CWA
claim, then it should decline to exercise supplemental
jurisdiction over the Plaintiffs' state law claims. Given
that the Court does not dismiss the federal CWA claim, it
will not entertain at this time Defendants' invitation to
decline to exercise supplemental jurisdiction over the
Plaintiffs' state law claims.
Background on the Clean Water Act and Requirements to Plead a
Viable Citizen Suit Under the Act.
Sixth Circuit recently explained, “Congress passed the
CWA in 1972 with the stated purpose of ‘restor[ing] and
maintain[ing] the … Nation's waters.'”
Ky. Waterways All. v. Ky. Utils. Co., 905 F.3d 925,
928 (6th Cir. 2018), quoting 33 U.S.C. §
1251(a). “To promote that goal, the CWA forbids all
unpermitted polluting of navigable waters.”
Id., citing 33 U.S.C. § 1311(a),
33 U.S.C. § 1311(a) (i.e., Section 301 of the
CWA), “the discharge of any pollutant by any
person” is unlawful, except in compliance with various
provisions in the CWA-including provisions that provide for
the issuance of permits pursuant to the statute's
National Pollutant Discharge Elimination System
(“NPDES”). 33 U.S.C. 1311(a) (“Except as in
compliance with this Section and [various other sections] of
this Act, the discharge of any pollutant by any person shall
be unlawful.”); Ky. Waterways All., 905 F.3d
at 928. The CWA defines “discharge of a
pollutant” as “any addition of any pollutant to
navigable waters from any point source.” 33 U.S.C.
1362(12)(A). The Court's analysis below delves more
deeply into the meaning of the embedded terms
“pollutant, ” “navigable waters, ”
and “point source.”
viable CWA claim under 33 U.S.C. § 1311 requires that
(1) a pollutant (2) was added (3) to navigable waters (4)
from a point source (5) by a person. 33 U.S.C. §§
1311(a), 1362(6), 1362(7), 1362(12), 1362(14), 1362(16).
See also Ky. Waterways All., 905 F.3d at 932;
Tenn. Clean Water Network v. TVA, 905 F.3d 436, 439
(6th Cir. 2018); U.S. v. Cundiff, 555 F.3d 200, 213
(6th Cir. 2009). The Motion questions whether the Amended
Complaint adequately pleads some of these elements, whether
certain exemptions or exceptions to liability apply here, and
the CWA's applicability.
The Amended Complaint Implicates “Navigable
Waters” under the CWA.
Court will first address Defendants' fourth argument:
that “waters of the United States”
(i.e., “navigable waters”) are not
implicated here. (Doc. 15 at PAGEID # 190-192.) As shown
above, a “discharge of a pollutant” under the CWA
requires the “addition of any pollutant to
navigable waters from any point source.” 33
U.S.C. § 1362(12) (emphasis added). As the Sixth Circuit
has pointed out, “federal regulation under the CWA only
extends to pollutants discharged into navigable waters, 33
U.S.C. § 1362(12), leaving the states to regulate all
pollution of non-navigable waters.” Ky. Waterways
All., 905 F.3d at 929.
Scope of “navigable waters”
waters are broadly defined as ‘the waters of the United
States.'” Ky. Waterways All., 905 F.3d at
928, quoting 33 U.S.C. § 1362(7). The Supreme
Court has recognized that “Congress evidently intended
to repudiate limits that had been placed on federal
regulation by earlier water pollution control statutes and to
exercise its powers under the Commerce Clause to regulate at
least some waters that would not be deemed
‘navigable' under the classical understanding of
that term.” United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 133 (1985). In other words,
water can fall within the CWA that is not actually navigable
in fact. Cundiff, 555 F.3d at 206.
Supreme Court in Rapanos v. United States, 547 U.S.
715 (2006) addressed what constitutes “navigable
waters” in the context of wetlands that are adjacent to
non-navigable tributaries of traditional navigable waters.
That is the same alleged situation presented here.
Unfortunately, Rapanos has no single majority
opinion. Instead, the Supreme Court fractured into a
four-Justice plurality (opinion written by Justice Scalia), a
four-Justice dissent (opinion written by Justice Stevens),
and a one-Justice concurrence-in-judgment (opinion written by
Justice Kennedy that no one else joined). Rapanos,
547 U.S. 715.
summarized by the Sixth Circuit, in Rapanos,
“[t]he four-Justice plurality interpreted the Act to
cover ‘relatively permanent, standing, or continuously
flowing bodies of water,' that are connected to
traditional navigable waters, as well as wetlands with a
continuous surface connection to such water bodies.”
Cundiff, 555 F.3d at 207 (internal citations
omitted). Justice Kennedy, however, “interpreted the
term [‘navigable waters'] to cover wetlands that
possess a significant nexus to waters that are or were
navigable in fact or that could reasonably be so made.”
Id. (internal citations and quotation marks
omitted). Justice Kennedy explained that:
“wetlands possess the requisite nexus and thus come
within the statutory phrase ‘navigable waters,' if
the wetlands, either alone or in combination with similarly
situated lands in the region, significantly affect the
chemical, physical, and biological integrity of other covered
waters more readily understood as ‘navigable.'
When, in contrast, wetlands' effects on water quality are
speculative or insubstantial, they fall outside the zone
fairly encompassed by the statutory term ‘navigable
Rapanos, 547 U.S. at 780. Finally, in the view of
the four-Justice dissent, “wetlands adjacent to
tributaries of traditionally navigable waters” fall
within the term “navigable waters” under the CWA.
Id. at 788, 795 n.4, 807. The dissent stated that
the “significant nexus” referenced by Justice
Kennedy (and earlier Supreme Court opinions) “is
categorically satisfied as to wetlands adjacent to navigable
waters or their tributaries.” Id. at 807.
Controlling opinion from Raponos for purposes of the
is quite little common ground [in Rapanos] between
Justice Kennedy's and the plurality's conceptions of
jurisdiction under the Act, and both flatly reject the
other's view.” Cundiff, 555 F.3d at 210.
In Cundiff, the Sixth Circuit stated that it
“[f]ortunately” did not have to decide at that
time which opinion from Rapanos controls in future
cases, and it declined to do so.Id. at 208. This was
because the Sixth Circuit found that, under the facts in
Cundiff, “jurisdiction is proper under both
Justice Kennedy's and the plurality's tests (and thus
also the ...