ELR Citation: ELR 21182
No(s). 1:91-cv-348-JEC (N.D. Ga. Mar 31, 1993)

The court holds that material questions of fact exist that preclude summary judgment on whether the government knew of a real estate developer's dredge and fill activities in violation of §404 of the Federal Water Pollution Control Act (FWPCA) within the federal five-year statute of limitations. The United States sought injunctive relief and civil penalties against the developer for five alleged violations of §404, including the unpermitted discharge of dredged or fill materials into streams and wetlands between 1979 and 1982. The United States first brought this suit in 1991.

The court first holds that the United States may amend its complaint to add a development corporation as a defendant and to make technical changes to its factual allegations. The court notes that this case is governed by the federal five-year statute of limitations in 28 U.S.C. §2462, which applies only to actions "for the enforcement of any civil fine, penalty or forfeiture." The court holds that the federal statute of limitations applies to the United States' request for both legal and equitable relief, including injunctive relief. Although §2462 does not expressly apply to equitable relief, the majority of courts that have considered the question, including the U.S. Supreme Court, have held that when legal and equitable relief are available concurrently, the statute of limitations applies to both.

The court next holds that a genuine question of fact exists as to when the government's claim accrued for purposes of applying the statute of limitations and summary judgment is not appropriate. The majority of courts that have interpreted §2462 in the context of alleged FWPCA violations have adopted some type of "discovery" rule, under which the claim does not accrue until the plaintiff knew, or reasonably should have known, of the violation. The court concludes that a strict interpretation of §2462, which provides that a claim accrues at the time of the violation, would have the effect of significantly thwarting the purpose of the FWPCA. Moreover, although some dredge and fill violations are easily observed, many violations may not be easily detected. Therefore, the court concludes that some type of discovery rule is appropriate in this case and it adopts an objective discovery rule, under which the statute of limitations begins to run when the United States knew of the violation, or through the use of reasonable diligence should have discovered the violation.

The court, in applying an objective discovery rule, holds that the developer has not met its burden of showing that no genuine question exists as to whether the United States actually knew of the violation more than five years before filing this action. The developer has produced competent evidence showing that its agents contacted the U.S. Army Corps of Engineers regarding the construction of the dam in question, and the United States has produced competent evidence showing that the government was not aware of the violation until 1989. Moreover, although the developer may ultimately prove at trial that the United States should have discovered the infraction earlier, none of the developer's cited facts is sufficient for the court to say as a matter of law that the United States reasonably should have known of the violation before early 1986. Finally, the court holds that the United States in this case was acting in its sovereign capacity to enforce public rights or protect public interests, and under controlling precedent, is not subject to the defense of laches. The court strikes the developer's laches defense, its claim of estoppel absent affirmative misconduct, but allows the developer's defense of equal protection.

Counsel for Plaintiff
Melissa A. Heath
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090
Jon M. Lipshultz, Stephen L. Samuels
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
C. Christopher Hagy, Teresa W. Roseborough
Sutherland, Asbill & Brennan
999 Peachtree St. NE, Atlanta GA 30309
(404) 853-8000