ELR Citation: ELR 21578
No(s). 93-K-2181 (D. Colo. May 2, 1995)

The Court holds that for purposes of determining when the five-year statute of limitations under 28 U.S.C. §2462 begins to run in reference to a Federal Water Pollution Control Act (FWPCA) civil enforcement action, the discharge of fill materials into waters of the United States in violation of FWPCA §301(a) is not a continuing violation. Defendant land developer claimed that 28 U.S.C. §2462's five-year statute of limitations barred the government's FWPCA §309 action against it for activities that occurred more than five years before the government filed this action. Rejecting the government's argument that the discharge of dredged or fill material into waters of the United States is a continuing violation as long as the adverse effects of the fill continue, the court holds that the discharge is not a continuing violation and that the five-year statute of limitations begins to run at the time of the discharge. That a continuing impact exists from a past violation does not render the violation continuing. Also, if the statute of limitations were to begin to run only when the developer has removed fill and restored the wetland, the statute might never begin to run. The court next holds that the five-year statute of limitations was not equitably tolled during negotiations that occurred before the action was filed and that led to a proposed consent decree, because there is no evidence that the developer misled the United States or lulled it into inaction. The court also holds that the statute of limitations also bars equitable relief for the alleged violations.

[A previous decision in this litigation is published at 24 ELR 21458.]

Counsel for Plaintiff
Robert H. Foster, Rebecca A. Lloyd
Environment and Natural Resources Division
U.S. Department of Justice
999 18th St., Ste. 945, Denver CO 80202
(303) 294-1900

Counsel for Defendants
David S. Neslin, James E. Scarboro
Arnold & Porter
1700 Lincoln St., Denver CO 80203
(303) 863-1000