`MIDDLE DISTRICT OF TENNESSEE
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`AARON DAVIS,
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`Plaintiff,
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`v.
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`TONY J. CAVENDER, THE JONES
`COMPANY OF TENNESSEE, LLC,
`AND OTTER CREEK
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`HOLDINGS, LLC,
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`Defendants.
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`Civil Action No.: _______________
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`Jury Demand
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`COMPLAINT
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`Plaintiff Aaron Davis, (“Plaintiff”), by and through undersigned counsel, herby alleges as
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`follows:
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`NATURE OF THE ACTION
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`1.
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`Plaintiff brings this citizens suit against Defendants Tony J. Cavender, The Jones
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`Company of Tennessee, LLC, and/or Otter Creek Holdings, LLC (collectively the “Defendants”)
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`pursuant to Section 505(a)(1) of the federal Clean Water Act (“CWA” or the “Act”), as
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`amended, 33 U.S.C. § 1365(a)(1) and (b)(1)(A).
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`JURISDICTION AND VENUE
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`2.
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`This Court has subject matter jurisdiction over the claims set forth in this Complaint
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`pursuant to the citizen suit provisions of Section 505(a) of the CWA, 33 U.S.C. § 1365(a), and
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`federal question jurisdiction pursuant to 28 U.S.C. §1331.
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`3.
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`Plaintiff has complied with Section 505(b)(1)(A) of the CWA, 33 U.S.C. §
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`1365(b)(1)(A), which requires pre-suit notice.
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`4.
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`On August 11, 2020, Plaintiff mailed a notice of intent to file this action under the CWA
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`to the named Defendants, the Administrator of the U.S. Environmental Protection Agency
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`(“USEPA”), the Regional Administrator of USEPA Region 4, and the Commissioner of the
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`Tennessee Department of Environment and Conservation (“TDEC”). A copy of the notice is
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`attached as Exhibit A.
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`5.
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`6.
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`More than sixty days have passed since Plaintiff sent the notice letter.
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`The violations identified in the notice letter and in this complaint are continuing at this
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`time and will continue in the future absent a court order for corrective action.
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`7.
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`Neither USEPA nor TDEC has commenced, nor are they diligently prosecuting a civil or
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`criminal action in a court of the United States to redress the violations of the CWA by
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`Defendants that were identified in the notice letter.
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`8.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and 33 U.S.C. §1365(c)(1).
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`The CWA violations alleged here have occurred and are occurring in the Middle District of
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`Tennessee.
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`PARTIES
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`9.
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`Davis is a property owner downstream from Defendants’ real estate development project,
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`owning approximately 10.44 acres located in Williamson County Tennessee as described fully in
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`Warranty Deed Book 251, Page 804, in the office of the Register of Deeds for Williamson
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`County, Tennessee, and also identified as Parcel 7.00 on Tax Map 95 in the Williamson County
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`Assessor’s office.
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`10.
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`Defendants are the owners, developers and builders of residential real property known as
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`Otter Creek Springs, Phase 1.
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`11.
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`Defendant Cavender is a natural person who, upon information and belief, resides in the
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`State of Tennessee and manages the development of Otter Creek Springs, Phase 1.
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`12.
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`Defendant The Jones Company of Tennessee, LLC is a Missouri limited liability
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`company with
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`its principle address being 16141 Swingley Ridge Road, Suite 109
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`Chesterfield, MO 63017-1778. The Jones Company of Tennessee, LLC can be served through
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`its agent for service of process, CT Corporation System, 300 Montvue Road, Knoxville, TN
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`37919.
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`13.
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`Otter Creek Holdings, LLC is a domestic limited liability company with its principle
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`address being 747 High Point Ridge Road, Franklin, TN 37069. Otter Creek Holdings, LLC can
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`be served through its agent for service of process, Thomas N. Jones, 339 Main Street, Franklin,
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`TN 37064.
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`14.
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`Defendants The Jones Companies and Otter Creek Holdings, are “persons” within the
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`meaning of 33 U.S.C. § 1362(5) and 1365(a).
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`STATUTORY BACKGROUND
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`15.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of pollutants
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`from a point source into waters of the United States unless the discharge complies with various
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`enumerated sections of the CWA. Among other things, Section 301(a) prohibits such discharges
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`not authorized by, or in violation of the terms of, a . National Pollutant Discharge Elimination
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`System (“NPDES”) permit issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342.
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`16.
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`Among other things, Section 301(a) prohibits such discharges not authorized by or in
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`violation of the terms of, a National Pollutant Discharge Elimination System (“NPDES”) permit
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`issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342.
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`17.
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`The CWA prohibits the discharge of pollutants to waters of the United States, except in
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`compliance with a National Pollutant Discharge Elimination System (“NPDES”) permit issued
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`pursuant to § 402 of the Act. 33 U.S.C. §§ 1311(a), 1342(a).
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`18.
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`The State of Tennessee has been delegated the authority to implement the permitting
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`programs of the Act by the EPA, including the NPDES permit program, pursuant to 33 U.S.C. §
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`1342(b). TDEC is the water pollution control agency for purposes of the Act, and has drafted
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`regulations pursuant to that authority implementing the Act’s permitting programs within the
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`State of Tennessee. See Tenn. Code Ann. § 69-3-105(h)(1).
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`19.
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`Each violation of an NPDES permit-and each discharge of a pollutant that is not
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`authorized by such permit-is a separate violation of the CWA. 33 U.S.C. § § 1311(a); 1342(a);
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`1364(f)(6).
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`20.
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`Pursuant to Tenn. Code Ann. § 69-3-105(a)(1), all waters of the State of Tennessee have
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`been classified by the Tennessee Water Quality Control Board for suitable uses.
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`21.
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`Chapter 1200-4-3 of the Rules of the Tennessee Department of Environment and
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`Conservation set forth the General Water Quality Criteria for all waters of the State of
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`Tennessee. Rule 1200-3-3.03 provides the water quality criteria for water uses, and Rule 1200-4-
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`3.03(3) provides, in pertinent part:
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`(3) Fish and Aquatic Life
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`(d) Turbidity, Total Suspended Solids, or Color-There shall be no
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`turbidity, total suspended solids or color in such amounts or of such
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`character that will materially affect fish and aquatic life….
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`(h) Other Pollutants-The waters shall not contain other pollutants that will
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`be detrimental to fish or aquatic life.
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`22.
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`The CWA defines a “point source” as “any discernible, confined, and discrete
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`conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
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`fissure, [or] container…from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
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`23.
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`24.
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`New River and the unnamed tributaries are waters of the United States.
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`A citizen suit, pursuant to 33 U.S.C. § 1365(a)(1), may be brought for violations
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`pertaining to a standard of performance. 33 U.S.C. § 1365(f)(5).
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`GENERAL ALLEGATIONS
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`25.
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`Defendants currently possess coverage under the state’s General NPDES Permit for
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`Discharges of Stormwater Associated with Construction Activities, a National Pollutant
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`Discharge Elimination System (“NPDES”) permit from the Tennessee Department of
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`Environment with Tracking Number TNR 242369 and an Aquatic Resource Alteration Permit
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`(“ARAP”) NR2004 for activities to be conducted on some portions of the Site.
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`26.
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`On July 8, 2020, the TDEC inspected the Site, its stormwater pollution prevention plan
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`(SWPPP), erosion prevention sediment controls (EPSCs), inspection reports and best
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`management practices (BMPs) for compliance with the Construction Stormwater Permit.
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`The following violations were found:
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`a) EPSCs were missing at Lots 13, 18, 22 and 23 and filters in the storm drains in front
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`and near those lots were clogged with sediment and gravel resulting in sediment entering
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`the open drain on the curb. Furthermore, filters in storm drains all across the Site were
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`not maintained;
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`b) The SWPPP and inspection sheets were not available during the inspection and the
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`NOC posting could not be located (CGP 3.3.3, 3.5.8.2.g);
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`c) A drainage area south of the Ragland Place construction area had channels that were
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`unstable resulting in erosion (CGP 3.5.3.2);
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`d) Work on the sediment basin was incomplete and structural failure has occurred
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`resulting in the discharge of sediment into Niblet Creek and/or some of the tributaries to
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`Niblet Creek and eventually discharging sediment to Hunting Camp Creek and the South
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`Harpeth River, which is considered Waters of the State (WOTS) and waters of the United
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`States. The sediment basin had not been maintained and was over 50% capacity. The weir
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`in the sediment basin was incomplete and the rock filter and PVC cap for the riser was
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`missing as required in the SWPPP plan sheets. As a result, a large amount of sediment
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`from the storm drains, unstabilized drainage channels and a large disturbed, unstabilized
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`area to the north of the sediment basin had discharged trough the inlet (weir and riser).
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`The sides of the sediment basin and areas around were unstable resulting in sediment
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`discharge outside of the basin and into WOTS. The sediment basin is inadequate resulting
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`in heavy erosion downgradient, resulting in additional sediment discharges to Hunting
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`Camp Creek and the South Harpeth RIver;
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`e) Construction was observed outside of the approved Limit of Disturbance (LOD) for
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`permit tracking no. TNR242369. Construction in Lots 33 through 38 were in process and
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`construction and land clearing along Swindon Road and Flatrock Road were in process.
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`These areas were previously identified in the SWPPP for permit tracking no. TNR242369
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`as part of Phase 2. An NOI and SWPPP were received for Phase 2 citing permit tracking
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`no. TNR243864, but Phase 2 was deemed to be incomplete and a Notice of Coverage
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`(NOC) had not been issued; therefore, all discharges relating to Phase 2 are unpermitted
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`discharges pursuant to the CWA. Notably, the permit application submitted to the TDEC
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`for Phase 2 was for construction of Lots 39-53, and 138-157, which is south of the area
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`that was disturbed and noted during the July 8, 2020 inspection. All discharges related to
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`Lots 33 through 28 are unpermitted discharges into Niblet Creek and its tributaries for
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`which the Defendants failed to apply for and obtain a discharge permit from the TDEC.
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`To Plaintiff’s knowledge, the Defendants have failed to submit an NOI and SWPPP to
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`the TDEC authorizing disturbance of this additional area.
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`f) Defendants failed to submit a site assessment has not been received for each outfall
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`draining 10 or more acres as required by the NOC and CGP. As required by CGP section
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`3.1.2, “Site assessments shall cover the entire disturbed area and occur within 30 days of
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`construction commencing at each portion of the Site that drains the qualifying acreage.”
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`27.
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`Additionally, Defendants failed to obtain a permit for its ongoing land clearing and
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`construction activities being conducted along Swindon Road and Flatrock Road on Lots 33
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`through 38. Defendants have failed to submit an NOI and SWPPP for this disturbed area. The
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`Site has little or no sediment control structures and is discharging pollutants into navigable
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`waters via discreet discharge points without an NPDES permit. Defendants have not followed
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`best management practices designed to minimize water quality impacts.
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`28.
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`The CWA prohibits the discharge of pollutants to waters of the United States, except in
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`compliance with a National Pollutant Discharge Elimination System (“NPDES”) permit issued
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`pursuant to § 402 of the Act. See 33 U.S.C. §§ 1311(a), 1342(a). The rivers and streams
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`degraded by discharges from Defendants are Niblet Creek and its tributaries, Hunting Camp
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`Creek, and the South Harpeth River which are considered jurisdictional waters of the United
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`States under the CWA. Rock, sand and dirt, which are the primary components of sediment, are
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`specifically listed as pollutants pursuant to CWA. See 33 U.S.C. § 1362(6). Defendants are
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`
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`discharging sediment into navigable waters and have failed to comply with their general NPDES
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`permit and has expanded their operations to areas outside of the permitted area.
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`29.
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`Silt, sand, and sediment have been and are observable in nearby streams as the result of
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`Defendants’ failure to property design, install and operate control measures and sediment basins
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`resulting in large amounts of sediment-laden discharges into Niblet Creek and its tributaries and
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`on to downstream waters from the discreet discharge point sources. These discharges occurred
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`as early as June 29, 2020, July 8, 2020, July 16, 2020, July 31, 2020, August 15, 2020, August
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`18, 2020, August 28, 2020, September 2, 2020 and September 13, 2020, and are likely to
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`continue.
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`30.
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`Each of these discrete conveyances of sediment discharges to waters of the United States,
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`is a point source, subject to regulation under the CWA. The regulatory definition of discharge of
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`a pollution from a point source expressly includes, “additions of pollutants into waters of the
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`United States from . . . surface runoff which is collected or channeled by man.” 40 CFR 122.2.
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`See North Carolina Shellfish Growers Ass’n v. Holly Ridges Assoc., 278 F.Supp.2d 654, 679-80
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`(E.D.N.C. 2003) (finding failed sediment traps, ditches, gullies, and rills to be point sources);
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`United States v. Law, 979 F.2d 977, 980 (4th Cir. 1992) (finding section 402 applicable to
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`system collecting polluted runoff and channeling it to waters of the United States); Concerned
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`Area Residents for the Env’t v. Southview Farm, 34 F.3d 114, 119 (2nd Cir. 1994) (finding 402
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`permit required for polluted runoff that was channeled by natural depression into nearby ditch
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`which discharged to stream). Defendants have failed to properly maintain adequate erosion
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`controls which have created discreet discharge points.
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`31.
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`In addition to ongoing daily and weekly violations related to installing and maintaining
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`adequate controls and required inspections, violations as the result of muddy discharges causing
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`significant contrast and impacts to downstream waters occurred on at least the following dates
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`June 29, 2020, July 8, 2020, July 16, 2020, July 31, 2020, August 15, 2020, August 18, 2020,
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`August 28, 2020, September 2, 2020 and September 13, 2020, and are likely to continue.
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`32.
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`Additional streams located on Defendants’ property, which the Plaintiff does not have
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`access to assess, are navigable waters pursuant to the CWA. Sections 401 and 404 of the CWA
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`require a permit from the U. S. Corps of Engineers prior to the discharge of dredged or fill
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`materials into waters of the United States. 33 U.S.C. §§ 1311, 1344. Sediment is a pollutant
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`under Section 502(6) of the CWA, 33 U.S.C. 1362(6). Disposal of sediment into navigable
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`waters of the United States constitutes the discharge of fill material as defined in Section 404 of
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`the CWA, 22 U.S.C. 1344 and under the U. S. Army Corp of Engineers’ implementing
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`regulations codified at 33 C.F.R. Part 323. Defendants’ land clearing operations and other
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`construction activities on the Site are continuing to create outlets, outfalls, and gullies, causing
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`the ongoing discharge and filling of dredged or fill material into waters of the United States.
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`These discharges exceed incidental fallback. See United States v. Deaton, 209 F.3d 331 (4th Cir.
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`2000); see also, 65 Fed. Reg. at 50109-50111 (August 16, 2000).
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`33.
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`The illegal placement of fill material continues to occur today and constitutes a
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`continuing violation until the illegally placed fill material is dredged and removed from the
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`navigable waters. The Defendants are subject to civil penalties and injunctive relief to address
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`and eliminate the violations under Section 505(a)(1) of the CWA and payment of the Plaintiff
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`costs of litigation including attorney’s fees under 505(d) of the CWA, 33 U.S.C. 1365(a)(1).
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`34.
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`Defendants are continuing to conduct construction activities on the Site. Discharge of fill
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`includes the addition of any material to a water of the United States which has the effect of
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`“[r]eplacing any portion of a water of the United States with dry land” or ‘[c]hanging the bottom
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`
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`elevation of any portion of a water of the United States.” See 33 C.F.R. § 323.2(e) and (f).
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`Examples of fill material include “rock, sand, soil, clay.” See 33 C.F.R. § 323.2(e). The
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`Defendants construction activities constitute discharges of fill material regulated by the CWA to
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`which Defendants have failed to seek a permit. Pursuant to Section 402 of the CWA, no person
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`may discharge pollutants from a point source to waters of the United States unless in compliance
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`with a discharge permit issued by the U.S. EPA or a delegated state NPDES program. The State
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`of Tennessee has a delegated NPDES program. The Defendants are conducting work on Lots 33
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`through 38 and other areas in Phase II; yet, the Defendants have never submitted an application
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`for a permit to discharge sediment emanating from those lots as these lots are outside of the
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`disturbed areas Defendants obtained a permit to disturb. (See July13, 2020 letter.)
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`35.
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`Defendants operations are causing violations of Tennessee water quality standards. The
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`Tennessee Department of Environment and Conservation (“TDEC”) classifies water bodies
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`according to the uses a water body is to support and mandates minimum water quality standards
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`and criteria necessary to sustain those uses. TDEC classifies the receiving waters as supporting
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`the following uses: Domestic Water Supply (DOM); Fish and Aquatic Life (FAL); Recreation
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`(REC); Livestock Water and Wildlife (LWW); and Irrigation (IRR). See TDEC Rule 0400-40-
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`04, Use Classifications for Surface Waters.
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`36.
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`For each use classification, Tennessee has established minimum water quality standards
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`and criteria. Because the receiving waters are subject to multiple use classifications, the most
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`stringent criteria apply. See Tenn. Comp. R. and Regs. 0400-4-4-.02. For waters designated for
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`supporting fish and aquatic life as here, the regulations provide that “[t]here shall be no turbidity
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`or color in such amounts or of such character that will materially affect fish and aquatic life.” See
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`Tenn. Comp. R. and Regs. 0040-4-4-.03(3)(d). Similarly, for recreational waters, the regulations
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`provide that “[t]here shall be no turbidity or color in such amounts or character that will result in
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`any objectionable appearance to the water, considering the nature and location of the water.” See
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`Tenn. Comp. R. and Regs. 0040-4-4-.03(4)(d).
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`37.
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`Defendants are causing Niblet Creek and its tributaries to violate each of these standards
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`and criteria. This excessive turbidity is materially affecting designated uses.
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`38.
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`The continued sedimentation of Niblet Creek and the other impacted streams and rivers
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`violates a
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`requirement under Tennessee
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`law
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`that “[n]o pollution,
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`including…any
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`deleterious…substance of activity, shall be…allowed to run into, wash into or take place in any
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`waters, either private or public, in a manner injurious to fish life or other aquatic organisms, or
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`that could be injurious to fish life or other aquatic organisms, or that could be injurious the
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`propagation of fish, or that results in the destruction of habitat for fish and aquatic life. See Tenn.
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`Code Ann. § 70-4-206.
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`CLAIMS
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`Count 1: Violation of the terms of the Clean Water Act
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`Unpermitted discharge of pollutants (sediment, dredge/fill material) into streams
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`and rivers
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`39.
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`40.
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`Paragraphs 1 to 37 of this complaint are hereby realleged and incorporated by reference.
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`The regulatory definition of discharge of pollution from a point source expressly
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`includes, “additions of pollutants into waters of the United States from…surface runoff which is
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`collected or channeled by man.” 40 CFR 122.2.
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`41.
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`42.
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`Point sources are discrete conveyances such as pipes or man-made ditches
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`The Site has one or more point sources which discharge sediment to nearby streams and
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`tributaries.
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`43.
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`Sediment is collected in the streams and tributaries and then discharged as a point source
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`to other waters.
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`44.
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`Each discrete conveyances of sediment to waters of the United States is a point source
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`subject to regulation under the Clean Water Act.
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`45.
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`Ongoing discharges from the Site corrupt rivers and streams including Niblet Creek and
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`its tributaries
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`46.
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`Under the CWA, the above-mentioned rivers and streams are navigable waters and
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`jurisdictional waters of the United States.
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`47.
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`33 U.S.C. § 1362(6) specifically lists sand and dirt, which are the primary components of
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`sediment, as pollutants.
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`48.
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`The deposit of dredged and fill material and other pollutants into United States waters is
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`the exact type of discharge barred by the CWA. CWA § 401-404; 33 U.S.C. §§ 1311, 1344.
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`49.
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`Field turbidity testing showed sediment and suspended solids which exceed Tennessee
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`standards.
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`50.
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`51.
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`52.
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`Photos show turbid waters in Niblet Creek and its tributaries.
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`The Clean Water Act bars turbidity that affects aquatic habitation.
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`Defendants’ discharges also lead to devastation of recreation in Niblet Creek and its
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`tributaries.
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`53.
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`Recreation includes fishing, sightseeing and water-related recreation. CWA Section
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`404(b) § 230.52(a).
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`54.
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`Defendants are causing the ongoing discharge of dredged or fill material into waters of
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`the United States due to Defendants’ construction activities.
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`55.
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`The muddy construction-related material is carried downstream where it is reintegrated in
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`the stream bed. This redeposit is the discharge of dredged material under the Clean Water Act.
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`56.
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`Discharge of fill material is ongoing due to Defendants’ placement of sediment in Niblet
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`Creek and its tributaries occurs when the stormwater detention pond carries sediment and dirt
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`from the trails and discharges it into the impacted streams.
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`57.
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`Disposal of sediment into navigable waters of the United States constitutes the discharge
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`of fill material under the CWA.
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`58.
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`“The disposal of dredge or fill material may adversely modify or destroy water use for
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`recreation by changing turbidity, suspended particulates, temperature, quality of habitat, and the
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`aesthetic qualities of sight, taste, odor and color.” CWA Section 404(b) § 230.52(a).
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`59.
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`Illegal placement of dredge and fill material and other pollutants continues to occur and
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`constitutes a continuing violation until the illegally placed pollutants are removed from the
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`navigable waters.
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`60.
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`Defendants’ unpermitted discharges of dredge and fill material, and other pollutants,
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`from multiple point sources, into waters of the United States, which affect aquatic life and
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`recreation, violates the CWA and the Court must award damages accordingly.
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`Count 2: Violation of the terms of the United States Army Corps of Engineers Standards
`
`61.
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`62.
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`Paragraphs 1 to 59 of this complaint are hereby realleged and incorporated by reference.
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`Sections 401 and 404 of the CWA require a permit from the Corps of Engineers prior to
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`the discharge of dredge or fill materials into waters of the United States. 33 U.S.C. §§ 1311,
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`1344.
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`63.
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`Defendants are causing the discharge of dredged or fill material into waters of the United
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`States.
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`{02123953.4 }
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`13
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`64.
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`Discharge of fill material is ongoing due to Defendants’ placement of sediment in Niblet
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`Creek and its tributaries with the bulldozer and also occurs when the stormwater detention pond
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`carries sediment and dirt from the trails and discharges it into the impacted streams.
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`65.
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`Discharge of fill includes the addition of any material to a water of the United States
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`which has the effect of “replacing any portion of a water of the United States with dry land”. 33
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`C.F.R. § 323.2(e) and (f).
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`66.
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`67.
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`Examples of fill material include “rock, sand, soil, clay.” 33 C.F.R. § 323.2(e).
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`Disposal of sediment into navigable waters of the United States constitutes the discharge
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`of fill material under the United States Army Corp of Engineers Implementing Regulations. 33
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`C.F.R. § 323.
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`68.
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`The Discharge of fill material into waters of the United States without a permit violates
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`the implanting standards of the United States Army Corps of Engineers. 33 C.F.R. § 323.
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`69.
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`Defendants are in violation of the implementing standards of the United States Army
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`Corps of Engineers and the Court must award damages accordingly.
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`Count 3: Violation of the terms of the Tennessee Water Quality Standards
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`70.
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`71.
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`Paragraphs 1 to 68 of this complaint are hereby realleged and incorporated by reference.
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`“All discharges of sewage, industrial waste , and other waste shall receive the degree of
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`treatment or effluent reduction necessary to comply with water quality standards, or state federal
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`laws and regulations pursuant thereto, and where appropriate will comply with the “Standards of
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`Performance” as required by the Tennessee Water Quality Control Act. (T.C.A. §§ 69-31-101, et
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`seq.).
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`72.
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`Defendants’ discharge laden operations, including continued sedimentation of Niblet
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`Creek and its tributaries, are violating Tennessee Water Quality Control standards.
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`{02123953.4 }
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`73.
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`Defendants’ activities are degrading water quality in the Niblet Creek and its tributaries
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`within the meaning of TN Water Quality Control Standards Chapter 0400-40-03-.04(3).
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`74.
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`Site visits on June 29, 2020, July 8, 2020, July 16, 2020, July 31, 2020, August 15, 2020,
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`August 18, 2020, August 28, 2020, September 2, 2020 and September 13, 2020 by TDEC and
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`Plaintiff reveal Defendants’ activities are degrading the water in violation of Tennessee Water
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`Quality Control Standards.
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`75.
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`76.
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`Field turbidity testing on collected solid samples reveal sediment and suspended solids.
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`The turbid waters from Defendants’ activities are devastating aquatic life and habitat in
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`the Niblet Creek and its tributaries.
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`77.
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`Niblet Creek and its tributaries are muddy and overwrought with sediment, leading to an
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`objectionable appearance in the water.
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`78.
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`79.
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`80.
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`Niblet Creek and its tributaries reveal turbid waters.
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`Clear water is found in streams upstream of Defendants’ activities.
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`Niblet Creek and its tributaries and surrounding tributaries are designated for supporting
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`aquatic life.
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`81.
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`The excessively high solid samples, and high turbidity levels violate Tennessee water
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`quality standards because they disrupt fish and aquatic life.
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`82.
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`Tennessee Water Quality Control Standards prohibit visible solids, floating materials and
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`deposits on these waters. Regarding solids, floating materials and deposits Tennessee water
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`quality standards hold that, “There shall be no distinctly visible solids, scum, foam, oily slick, or
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`the formation of slimes, bottom deposits, or sludge banks of such size or character that may be
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`detrimental to fish and aquatic life.” (TN Water Quality Control Standards Chapter 0400-40-04-
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`.04(3)(c)).
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`{02123953.4 }
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`83.
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`Tennessee Water Quality Control Standards also prohibit turbidity, total suspended solids
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`or color on these waters. Pertaining to turbidity, total suspended solids, or color, Tennessee water
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`quality control standards hold that, “There shall be no turbidity, total suspended solids, or color
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`in such amounts or of such character that will materially affect fish and aquatic life.” (TN Water
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`Quality Control Standards, Chapter 0400-40-03-.03(d)).
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`84.
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`“For waters designated for supporting aquatic life, there shall be no turbidity that will
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`materially affect fish and aquatic life”. (Tenn. Comp. R. and Regs. 1200-4-4-.04(d).
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`85.
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`Further, Tennessee water control standards hold that, “no pollution including…any
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`deleterious…substance of activity, shall be allowed... to run into, wash into or take place in any
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`waters, either private or public, in a manner injurious to fish life or other aquatic organisms, or
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`that could be injurious to fish life or other aquatic organisms, or that could be injurious to the
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`propagation of fish, or that results in the destruction of habitat for fish and aquatic life. Tenn.
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`Code Ann. § 70-4-206.
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`86.
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`Therefore, turbidity from Defendants’ activities and operations which disrupt fish and
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`aquatic life is in violation of Tennessee water quality standards.
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`87.
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`Furthermore, the excessively high solid samples, and high turbidity levels from
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`Defendants’ discharges, also violate Tennessee water quality standards because they disrupt
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`recreation and recreational use of these waters.
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`88.
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`“The disposal of dredged or fill material may adversely modify or destroy water use for
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`recreation by changing turbidity, suspended particulates, temperature, quality of habitat, and the
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`aesthetic qualities of sight, taste, odor and color”. CWA Section 404(b) § 230.52(a).
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`89.
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`The CWA’s definition for recreation includes consumptive use, such as fishing and non-
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`consumptive use, such as sight-seeing. CWA 404(b) § 230.52(a).
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`{02123953.4 }
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`90.
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`Eyewitness, photographic accounts reveal ongoing observations of brown, murky, opaque
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`water.
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`91.
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`Additionally, some of these waters, such as Niblet Creek and its tributaries are crucial to
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`recreation as they encourage sightseeing and nature observances.
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`92.
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`Regarding recreation, Tennessee water quality standards hold that “There shall be no
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`distinctively visible solids, scum, foam, oily slick, or the formation of slimes, bottom deposits, or
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`sludge banks, of such size or character that may be detrimental to recreation. TN Water Quality
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`Control Standards Chapter 0400-40-03-.03(4)(c).
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`93.
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`Pertaining to recreation, Tennessee water quality standards hold that, “There shall be no
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`total suspended solids, turbidity, or color in such amounts or character that will result in any
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`objectionable appearance to the water, considering the nature and location of the water. TN
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`Water Quality Control Standards Chapter 0400-40-03-.03(4)(d).
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`94.
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`Therefore, discharges from Defendants’ activities and operations which disrupt recreation
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`is in violation of Tennessee water quality standards and the Court must award damages
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`accordingly.
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`Count 4: Violation of the terms of Tennessee Antidegradation Rule
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`95.
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`96.
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`Paragraphs 1 to 94 of this complaint are hereby realleged and incorporated by reference.
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`Disruption of water quality of streams and waters violates the Tennessee antidegradation
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`rule. Tenn. Comp. R. on Regs. 1200-4-3.06.
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`97.
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`As alleged herein, Defendants are disrupting water quality of streams and waters through
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`unpermitted discharges.
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`98.
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`Defendants are in violation of the Tennessee antidegradation rule and the Court must
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`award damages accordingly.
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`{02123953.4 }
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`PRAYER FOR RELIEF
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`WHEREFORE, based upon the allegations contained in the foregoing paragraphs,
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`Plaintiff respectfully requ