Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NEW YORK
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`WAFLER FARMS, INC., d/b/a WAFLER
` NURSERY & ORCHARDS,
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`HURON ENTERPRISES, LLC,
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`PAUL E. WAFLER, and
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`SUSAN WAFLER,
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`Defendants.
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`Civil Action No.
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`COMPLAINT
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`The United States of America, through its undersigned counsel, by the authority of
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`the Attorney General, and at the request of the Secretary of the Army, alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action commenced under Section 309(b) and (d) of the Clean
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`Water Act (“CWA”), 33 U.S.C. § 1319(b) and (d), to obtain injunctive relief and civil
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`penalties against Wafler Farms, Inc., d/b/a Wafler Nursery & Orchards, Huron
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`Enterprises, LLC, Paul E. Wafler, and Susan Wafler (“Defendants”), for the discharge of
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`pollutants into waters of the United States located at 10748 and 10817 Slaght Road in the
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`Town of Wolcott, Wayne County, New York, without authorization by the Department of
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`the Army, U.S. Army Corps of Engineers (“Corps”), in violation of CWA Section 301(a),
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`33 U.S.C. § 1311(a).
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NEW YORK
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`WAFLER FARMS, INC., d/b/a WAFLER
` NURSERY & ORCHARDS,
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`HURON ENTERPRISES, LLC,
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`PAUL E. WAFLER, and
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`SUSAN WAFLER,
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`Defendants.
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`Civil Action No.
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`COMPLAINT
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`The United States of America, through its undersigned counsel, by the authority of
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`the Attorney General, and at the request of the Secretary of the Army, alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action commenced under Section 309(b) and (d) of the Clean
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`Water Act (“CWA”), 33 U.S.C. § 1319(b) and (d), to obtain injunctive relief and civil
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`penalties against Wafler Farms, Inc., d/b/a Wafler Nursery & Orchards, Huron
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`Enterprises, LLC, Paul E. Wafler, and Susan Wafler (“Defendants”), for the discharge of
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`pollutants into waters of the United States located at 10748 and 10817 Slaght Road in the
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`Town of Wolcott, Wayne County, New York, without authorization by the Department of
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`the Army, U.S. Army Corps of Engineers (“Corps”), in violation of CWA Section 301(a),
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`33 U.S.C. § 1311(a).
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`1
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 2 of 11
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`2.
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`In this action, the United States seeks: (i) to enjoin the discharge of pollutants
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`into waters of the United States without a permit in violation of the CWA Section 301(a),
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`33 U.S.C. § 1311(a); (ii) to require Defendants, at their own expense and at the direction of
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`the Corps, to restore the waters of the United States and/or mitigate the damages caused by
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`Defendants’ unlawful activities; and (iii) to require Defendants to pay civil penalties as
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`provided in 33 U.S.C. § 1319(d).
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`JURISDICTION AND VENUE
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`3.
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`This Court has jurisdiction over the subject matter of this action pursuant to
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`CWA Section 309(b), 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1331, 1345, and 1355.
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`4.
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`Venue is proper in the Western District of New York pursuant to CWA
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`Section 309(b), 33 U.S.C. § 1319(b), and 28 U.S.C. § 1391(b) and (c), because the subject
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`property is in this District, the cause of action alleged herein arose in this District, and the
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`principal place of business for Defendant Wafler Farms, Inc. and for Defendant Huron
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`Enterprises, LLC. is in this District.
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`5.
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`Notice of the commencement of this action has been provided to the State of
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`New York pursuant to CWA Section 309(b), 33 U.S.C. § 1319(b).
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 3 of 11
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`PARTIES
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`6.
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`The Plaintiff in this action is the United States of America. Authority to bring
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`this action is vested in the United States Department of Justice pursuant to 28 U.S.C. §§ 516
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`and 519, and 33 U.S.C. § 1366.
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`7.
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`Defendant Wafler Farms, Inc., d/b/a Wafler Nursery & Orchards, is a
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`domestic business corporation incorporated in the State of New York with its principal
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`place of business located at 10748 Slaght Road, Wayne County, Wolcott, New York 14590.
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`8.
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`Defendant Huron Enterprises, LLC is a limited liability corporation active in
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`the State of New York which owns property located at 10748 Slaght Road, Wayne County,
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`Wolcott, New York 14590.
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`9.
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`Defendant Paul E. Wafler is the President and owner of Wafler Farms, Inc.,
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`and co-owner of the property at 10817 Slaght Road, Wayne County, Wolcott, New York
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`14590.
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`10. Defendant Susan Wafler is the co-owner of the property at 10817 Slaght
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`Road, Wayne County, Wolcott, New York 14590.
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`11. At all times relevant to the Complaint, Defendants owned, leased, or
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`otherwise controlled the real property that is the subject of this Complaint and/or otherwise
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`controlled the activities relevant to this Complaint that occurred on such property.
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 4 of 11
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`STATUTORY BACKGROUND
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`12. CWA Section 301(a), 33 U.S.C. § 1311(a), prohibits the discharge of
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`pollutants into navigable waters except in compliance with, inter alia, a permit issued
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`pursuant to CWA Section 404, 33 U.S.C. § 1344.
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`13. CWA Section 404(a), 33 U.S.C. § 1344(a), authorizes the Secretary of the
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`Army, acting through the Chief of Engineers, to issue permits for the discharge of dredged
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`or fill material into navigable waters at specified disposal sites, after notice and opportunity
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`for public comment.
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`14. CWA Section 502(12), 33 U.S.C. § 1362(12), defines “discharge of a
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`pollutant” to include “any addition of any pollutant to navigable waters from any point
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`source.”
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`15. CWA Section 502(6), 33 U.S.C. § 1362(6), defines “pollutant” to include
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`dredged spoil, rock, sand, and cellar dirt.
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`16. CWA Section 502(7), 33 U.S.C. § 1362(7), defines “navigable waters” as “the
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`waters of the United States, including the territorial seas.”
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`17.
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`33 C.F.R. § 328.3(a)(1), (2), (5) and (7), and 40 C.F.R. § 232.2, define “waters
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`of the United States” to include: (i) all waters which are currently used, were used in the
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`past, or may be susceptible to use in interstate or foreign commerce; (ii) all inter-state
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 5 of 11
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`waters; (iii) tributaries to such waters; and (iv) wetlands adjacent to such waters or their
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`tributaries.
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`18.
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`33 C.F.R. § 328.3(b) and 40 C.F.R. §§ 122.2 and 232.2 define “wetlands” as
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`“those areas that are inundated or saturated by surface or ground water at a frequency and
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`duration sufficient to support, and that under normal circumstances do support, a
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`prevalence of vegetation typically adapted for life in saturated soil conditions.”
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`19. CWA Section 502(14), 33 U.S.C. § 1362(14), defines “point source” to
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`include “any discernible, confined and discrete conveyance…from which pollutants are or
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`may be discharged.”
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`20. CWA Section 502(5), 33 U.S.C. 1362(5), defines “person” to include “an
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`individual, corporation, partnership, [or] association.”
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`21. CWA Section 309(b), 33 U.S.C. § 1319(b), authorizes the commencement of
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`a civil action for appropriate relief, including a permanent or temporary injunction, against
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`any person who violates CWA Section 301(a), 33 U.S.C. § 1319(a).
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`22. CWA Section 309(d), 33 U.S.C. § 1319(d), authorizes the commencement of
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`an action for civil penalties against any person who violates CWA Section 301(a), 33 U.S.C.
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`§ 1311(a).
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 6 of 11
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`ALLEGATIONS
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`23. At some time beginning on or about July 1, 2015, through on or about May
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`11, 2016, Defendants and/or persons acting on Defendants’ behalf, or with their consent
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`and/or knowledge, used mechanized land-clearing and earth-moving equipment to clear
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`and grade portions of property located at 10817 and 10748 Slaght Road in the Town of
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`Wolcott, Wayne County, New York (“Slaght Road Property”).
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`24. On or about November 24, 2015, the New York State Department of
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`Environmental Conservation (“NYSDEC”) contacted the Corps regarding possible
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`violations of New York State and Federal law involving the clear-cutting and filling in of
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`wetlands on the Slaght Road Property.
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`25. On or about February 11, 2016, the Corps issued a letter to Defendants Paul
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`Wafler and Wafler Farms, Inc., informing Defendants that the Corps had received
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`information from NYSDEC that work performed at the Slaght Road Property had resulted
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`in the discharge of dredged or fill material into federal jurisdictional waters in violation of
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`the CWA. The letter advised Defendants to submit an application for a Department of the
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`Army permit, or contact the Corps for advice on procedures to be followed before
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`proceeding with work on the property.
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`26. On or about May 11, 2016, the Corps and NYSDEC staff visited the Slaght
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`Road Property to conduct a site investigation. The investigation determined that tree
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`clearing and grading on the property had resulted in the discharge of dredged or fill material
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 7 of 11
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`into waters of the United States. Specifically, the site investigation revealed that dredged or
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`fill material had been discharged into approximately 4.68 acres of federal jurisdictional
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`wetlands and approximately 1,437 linear feet of an unnamed tributary on the Slaght Road
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`Property.
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`27. Defendants did not obtain a permit from the Secretary of the Army, acting
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`through the Chief of Engineers, for the discharge of dredged or fill material into wetlands
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`and a tributary on the Slaght Road Property.
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`28. On or about September 16, 2016, the Corps issued a Notice of Violation to
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`Defendants Paul Wafler and Wafler Farms, Inc., notifying Defendants that the Corps had
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`determined that the activities performed at the Slaght Road Property had resulted in the
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`discharge of dredged or fill material into waters of the United States without authorization
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`of the Department of the Army and that, as a result of that determination, Defendants were
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`in violation of the CWA. The Notice of Violation, which included aerial maps of the
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`property, set forth requirements for resolution of the violation.
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`29.
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`In a letter dated October 24, 2016, Defendant Paul Wafler contested the
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`acreage and stream location identified on the maps provided with the September 16, 2016
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`Notice of Violation. Defendant Wafler also referenced a case brought by NYSDEC
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`regarding the Slaght Road Property.
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 8 of 11
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`30. On or about February 14, 2017, the Corps sent Defendants Paul Wafler and
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`Wafler Farms, Inc. a second Notice of Violation, informing the Defendants that, in addition
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`to the NYSDEC matter, Defendants were required to act to resolve the federal violations.
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`Defendants did not respond to the second Notice of Violation.
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`FIRST CAUSE OF ACTION: UNAUTHORIZED DISCHARGE OF
`DREDGED OR FILL MATERIAL
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`The United States repeats and realleges the allegations set forth in Paragraphs
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`31.
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`1 through 30 as if fully set forth herein.
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`32. Defendant Wafler Farms, Inc., Defendant Huron Enterprises, LLC,
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`Defendant Paul E. Wafler, and Defendant Susan Wafler are “persons” within the meaning
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`of CWA Section 502(5), 33 U.S.C. § 1362(5).
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`33. At some time beginning on or about July 1, 2015, through on or about May
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`11, 2016, Defendants and/or persons acting on Defendants’ behalf, or with their consent
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`and/or knowledge, used mechanized land-clearing and earth-moving equipment to
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`discharge dredged or fill material, including rock and sand, into wetlands and a tributary on
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`the Slaght Road Property.
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`34.
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`The impacted 4.68 acres of federal jurisdictional wetlands and approximately
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`1,437 linear feet of tributary are owned, leased, or otherwise controlled by Defendants.
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 9 of 11
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`35.
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`The impacted 4.68 acres of federal jurisdictional wetlands and approximately
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`1,437 linear feet of tributary are “waters of the United States” as defined in 33 C.F.R. §
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`328.3(a)(1), (2), (5) and (7), and 40 C.F.R. § 232.2.
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`36.
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`The mechanized equipment described in Paragraph 33 constituted “point
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`sources” as defined in CWA Section 502(14), 33 U.S.C. § 1362(14).
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`37.
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`The discharge of dredged or fill material described in Paragraph 33
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`constituted a discharge of a pollutant within the meaning of CWA Section 301, 33 U.S.C. §
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`1311, and CWA Section 502(12), 33 U.S.C. § 1362(12).
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`38. Defendants did not obtain a permit from the Secretary of the Army, acting
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`through the Chief of Engineers, for the discharge of dredged or fill material into waters of
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`the United States as required by CWA Section 301(a) and 404, 33 U.S.C. §§ 1311(a), 1344.
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`39.
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`The discharge of dredged or fill material described in Paragraph 33 was
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`conducted by Defendants, or was contracted for, supervised, and/or otherwise controlled by
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`Defendants.
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`40.
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`The discharge of dredged or fill material described in Paragraph 33 violated
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`and continues to violate CWA Section 301(a), 33 U.S.C. § 1311(a).
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 10 of 11
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`41.
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`Each day that the dredged or fill material described in Paragraph 33 remains
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`in the waters of the United States constitutes a separate violation of CWA Section 301(a), 33
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`U.S.C. § 1311(a).
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`42. Unless enjoined, Defendants are likely to continue to allow dredged or fill
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`material to remain in and/or continue to discharge dredged or fill material into waters of the
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`United States located on the Slaght Road Property, in violation of CWA Section 301, 33
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`U.S.C. § 1311.
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`PRAYER FOR RELIEF
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`WHEREFORE, the Plaintiff, the United States of America, respectfully
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`requests that this Court order the following relief:
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`1.
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`That Defendants be permanently enjoined from discharging or causing
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`the discharge of dredged or fill material or other pollutants into any waters of the
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`United States except in compliance with the CWA;
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`2.
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`That Defendants be enjoined to undertake measures, at Defendants’
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`own expense and at the direction of the Corps, to effect complete restoration of
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`waters of the United States at the Slaght Road Property, and conduct on-site and off-
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`site mitigation to compensate for unauthorized impacts to waters of the United
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`States, as appropriate;
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`Case 1:20-cv-00664 Document 1 Filed 06/02/20 Page 11 of 11
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`3.
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`That Defendants be assessed, pursuant to CWA Section 309(d), 33
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`U.S.C. § 1319(d), a civil penalty for each day of each violation of CWA Section
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`301(a), 33 U.S.C. § 1311(a);
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`4.
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`That Plaintiff, the United States of America, be awarded costs and
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`disbursements in this action; and
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`5.
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`That this Court grant Plaintiff, the United States of America, such
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`other relief as the Court may deem just and proper.
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`Respectfully submitted,
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`JAMES P. KENNEDY, JR.
`UNITED STATES ATTORNEY
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`BY:
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`S/MARYELLEN KRESSE
`Assistant U.S. Attorney
`Western District of New York
`138 Delaware Avenue
`Buffalo, New York 14202
`(716) 843-5888
`Maryellen.kresse@usdoj.gov
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`DATED:
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`June 2, 2020
`Buffalo, New York
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`OF COUNSEL:
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`KIMBERLY A. ROWLES
`Assistant District Counsel
`U.S. Army Corps of Engineers, Buffalo District
`1776 Niagara Street
`Buffalo, New York
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`11
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