Appellate Team Upholds Trial Win in Case Involving Clean Water Act

Appellate partner Cassie Dallas and senior attorney Ryan Owen, along with trial counsel partners Richard Harmon and James Sowder, obtained an appellate win when the Fifth Circuit Court upheld both the district court’s dismissal for lack of jurisdiction and the denial of the motion to vacate and amend the complaint, in a case involving the Clean Water Act.

Defining Ongoing Violations under Clean Water Act

Save the Cutoff (STC), a nonprofit environmental organization, sued Iron River Ranch II, L.L.C. and construction company IronHorse Unlimited, Inc. under the Clean Water Act (CWA). STC alleged that in February 2022, Defendants unlawfully placed fill material in Cedar Creek, a tributary of the Trinity River, without required permits. STC claimed the fill remained in the creek and caused sediment to wash into the waterway when it rains, which constituted an ongoing violation.

The district court dismissed the case for lack of jurisdiction, finding no allegation of an ongoing violation as required under the CWA. STC moved to vacate the judgment and amend its complaint to clarify that Defendants also needed a § 402 permit for pollutant discharge, but the district court denied the motion as futile since the jurisdictional issues would remain.

Whether STC sufficiently alleged an ongoing or intermittent violation under the CWA to establish subject matter jurisdiction, and whether the district court erred in denying post-judgment vacatur and leave to amend?

Jurisdictional Defense in Environmental Law

Under the CWA, citizen suits may be brought only against persons “alleged to be in violation” of an effluent standard or limitation, (33 U.S.C. § 1365(a)(1)), which requires the plaintiff to plead and prove a continuous or intermittent violation, not a wholly past violations. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987). Movement of residual pollutants by natural processes such as rainfall is not sufficient to show a continuing discharge. Hamker v. Diamond Shamrock Chem. Co., 756 F.2d 392 (5th Cir. 1985).

The Fifth Circuit affirmed. It held that the district court lacked jurisdiction because the plaintiff failed to allege an ongoing or intermittent violation under the Clean Water Act. The plaintiff’s allegations mirrored allegations in Hamker: rainfall moving fill already placed in a creek constitutes only a residual effect, not a continuing discharge. The Fifth Circuit also held that the district court did not abuse its discretion in denying vacatur and leave to amend because any amendment would have been futile.

This case highlights our trial and appellate team’s success defending against claims under the Clean Water Act and understanding of jurisdictional defenses and environmental law, which helped secure the district court’s take-nothing judgment. By securing a judgment affirming the district court’s dismissal for lack of jurisdiction, we protected our client from protracted litigation and reinforced critical precedent on the limits of “ongoing violation” jurisdiction.