`Case 2:20-cv-00304-SAB ECF No. 1 filed 08/24/20 PageID.1 Page 1 of 12
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`Gus Maxwell
`Brian S. Uholik
`U.S. Department of Justice
`Environment and Natural Resources Division
`Environmental Defense Section
`P.O. Box 7611
`Washington, DC 20044
`(202) 514-0135 (Maxwell)
`(202) 305-0733 (Uholik)
`gustavus.maxwell@usdoj.gov
`brian.uholik@usdoj.gov
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WASHINGTON
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`BROCK MASLONKA,
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`Defendant.
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`No. _____________
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`COMPLAINT
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`The United States of America, by the authority of the Attorney General and
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`at the request of the United States Environmental Protection Agency (“EPA”), files
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`this Complaint and 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
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`Clean Water Act (“CWA”), 33 U.S.C. § 1319(b) and (d). The United States seeks
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`injunctive relief and civil penalties against Brock Maslonka (“Defendant”) for the
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`discharge of dredged and/or fill materials into waters of the United States in Pend
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`Oreille County, Washington, without authorization by the United States
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`COMPLAINT - 1
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`Case 2:20-cv-00304-SAB ECF No. 1 filed 08/24/20 PageID.2 Page 2 of 12
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`Department of the Army, in violation of section 301(a) of the CWA, 33 U.S.C.
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`§ 1311(a).
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`2.
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`The property that is the subject of this Complaint (“the Site”) is
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`located along Washington State Highway 20 in Pend Oreille County, Parcel
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`Number 443307509002, within Section 7, Township 33 North, Range 44 East.
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`This real estate is identified in Exhibit A.
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`3.
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`In this action, the United States seeks to: (1) enjoin the discharge of
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`pollutants into waters of the United States without a permit, in violation of CWA
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`section 301(a), 33 U.S.C. § 1311(a), at or from the Site; (2) enjoin Defendant to
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`comply with the CWA’s requirements; (3) require Defendant, at his own expense
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`and at EPA’s direction, to restore and/or mitigate the damages caused by his
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`unlawful activities; and (4) pay civil penalties as provided in section 309(d) of the
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`CWA, 33 U.S.C. § 1319(d).
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`JURISDICTION AND VENUE
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`4.
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`This Court has jurisdiction over the subject matter of this action
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`pursuant to section 309(b) of the CWA, 33 U.S.C. § 1319(b), and under 28 U.S.C.
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`§§ 1331, 1345, and 1355.
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`5.
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`Venue is proper in the Eastern District of Washington under CWA
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`section 309(b), 33 U.S.C. § 1319(b), and under 28 U.S.C. § 1391(b) and (c),
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`because Defendant resides in this District, the subject property is located in this
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`District, and the cause of action alleged in the Complaint arose in this District.
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`6.
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`Notice of the commencement of this action has been provided to the
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`State of Washington as required by CWA section 309(b), 33 U.S.C. § 1319(b).
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`COMPLAINT - 2
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`THE PARTIES
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`7.
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`The Plaintiff is the United States of America. The United States
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`Department of Justice is vested with the authority to bring this action under 28
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`U.S.C. §§ 516 and 519, and 33 U.S.C. § 1366.
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`8.
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`Defendant is a private individual who resides and conducts business in
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`the Eastern District of Washington. Upon information and belief, Defendant
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`resides or at one time resided at 417372 Highway 20, Cusick, Washington, 99119.
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`9.
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`Upon information and belief, at all times relevant to the Complaint,
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`Defendant either owned and/or otherwise controlled the Site that is subject of this
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`Complaint and/or otherwise controlled the activities that occurred on such
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`property.
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`STATUTORY AND REGULATORY BACKGROUND
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`10. The CWA’s purpose is “to restore and maintain the chemical,
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`physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
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`11. 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
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`issued under CWA section 402 or 404, 33 U.S.C. §§ 1342 or 1344, or by other
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`CWA provisions not applicable here. Strict liability applies under the CWA.
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`12. CWA section 404(a), 33 U.S.C. § 1344(a), authorizes the Secretary of
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`the Army, acting through the U.S. Army Corps of Engineers (“Corps”), to issue
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`permits for the discharge of dredged and/or fill material into navigable waters at
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`specified disposal sites, after notice and opportunity for public comment.
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`COMPLAINT - 3
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`13. 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
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`point source.”
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`14. CWA section 502(6), 33 U.S.C. § 1362(6), defines “pollutant” to
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`include, among other things, dredged spoil, rock, sand, and cellar dirt.
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`15. CWA section 502(7), 33 U.S.C. § 1362(7), defines “navigable waters”
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`as “the waters of the United States, including the territorial seas.”
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`16. CWA section 502(14), 33 U.S.C. § 1362(14), defines “point source”
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`to include “any discernible, confined and discrete conveyance . . . from which
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`pollutants are or may be discharged.”
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`17. CWA section 502(5), 33 U.S.C. § 1362(5), defines “person” to
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`include “an individual [or] corporation.”
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`18. CWA section 309(b), 33 U.S.C. § 1319(b), authorizes the
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`commencement of a civil action for appropriate relief, including a permanent or
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`temporary injunction, against any person who violates CWA section 301(a), 33
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`U.S.C. § 1311(a).
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`19. CWA section 309(d), 33 U.S.C. § 1319(d), likewise authorizes the
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`commencement of an action for civil penalties against any person who violates
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`CWA section 301(a), 33 U.S.C. § 1311(a).
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`FACTUAL BACKGROUND
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`20. Upon information and belief, Defendant purchased the Site in 1992.
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`The Site comprises approximately 158 contiguous acres located in Pend Oreille
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`County, Washington.
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`COMPLAINT - 4
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`21. Upon information and belief, at all times relevant to this Complaint,
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`Defendant owned, controlled, and/or operated the Site.
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`22. Perkins Slough, a perennial stream and tributary of the Pend Oreille
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`River with a relatively permanent flow into the receiving water, flows from west to
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`east across the Site.
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`23. Perkins Slough’s flow exits the Site along the eastern boundary and
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`converges with the Pend Oreille River less than a mile downstream of the Site.
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`24. The Pend Oreille River, a tributary of the Columbia River, flows
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`across parts of Idaho, Washington, and Canada and is currently used, was used in
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`the past, and is susceptible to use in interstate and/or foreign commerce, and is a
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`traditional navigable water (“TNW”) under the Rivers and Harbors Act, 33 U.S.C.
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`§§ 403, 404.
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`25. The Pend Oreille River and its associated marshes and wetlands are a
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`haven for fish, wildlife, and visitors who wish to recreate and/or simply experience
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`the area’s natural beauty.
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`26. Perkins Slough serves as an important feeding area for waterfowl, an
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`important source of aquatic macrophytes, and an important backwater habitat to
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`the Pend Oreille River. The Slough transports a relatively permanent flow of water
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`to the Pend Oreille River, supporting the River’s navigability, augmenting
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`pollutant assimilation, and supporting the River’s flora and faunal assemblages.
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`For example, the Pend Oreille River is critical habitat for the threatened Bull Trout,
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`and its tributaries, including Perkins Slough, transport a steady volume of water to
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`the Pend Oreille River to provide habitat for this and other species.
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`COMPLAINT - 5
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`27. The Pend Oreille River is one of the most prominent waterways in the
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`northwestern United States, draining an area of about 25,000 square miles and
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`ultimately flowing into another TNW—the Columbia River, which—in turn—
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`ultimately flows into the Pacific Ocean.
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`28. Perkins Slough is a “water of the United States” within the meaning of
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`the CWA.
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`29. Beginning in or around September 2015, at times best known to
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`Defendant, Defendant and/or persons acting on his behalf, caused fill material to
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`be discharged into Perkins Slough at the Site, approximately 0.7 miles from the
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`mouth of the Slough. This discharge created an earthen dam across the Slough
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`approximately 100 feet wide and 200 feet long that blocks the flow of water.
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`30.
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`In or around February 2016, the dam caused impounded water to back
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`up to or flood Washington State Highway 20.
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`31. Defendant then breached the dam to mitigate this water backup,
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`causing part of the dam to fail and additional fill material to be discharged into
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`Perkins Slough.
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`32. Defendant used mechanized land-clearing and earth-moving
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`equipment, including a Bucyrus-Erie excavator and Caterpillar D6 bulldozer, to
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`accomplish the discharges described in Paragraphs 29 through 31.
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`33. On or about October 16, 2015, the Corps, the Washington Department
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`of Fish and Wildlife (“WDWF”), the Washington Department of Ecology
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`(“Ecology”), and the Pend Oreille County Community Development Department
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`(“County”), conducted a Site visit to observe the dam.
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`COMPLAINT - 6
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`34. On or about November 19, 2015, WDWF issued a letter to Defendant
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`notifying him that his construction of the dam across Perkins Slough was
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`unauthorized and requesting its removal.
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`35. On or about January 29, 2016, the County issued a letter to Defendant
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`stating that the dam violated the Pend Oreille County Development Regulations
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`and Shoreline Master Program and requesting that the fill be removed from Perkins
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`Slough and the Site restored.
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`36. On or about February 8, 2016, Ecology issued a letter to Defendant
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`informing him that it was investigating his activities on the Site and requesting that
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`he remove the fill placed into Perkins Slough.
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`37. On or about April 26, 2016, WDFW issued a letter to Defendant
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`reiterating that the dam project was unpermitted and directing him to obtain the
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`necessary permits to remove the dam and restore the Site. Defendant responded to
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`WDFW on or about May 2, 2016, explaining that he did not agree to remove the
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`dam.
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`38. On March 8, 2018, the Corps issued a letter to Defendant notifying
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`him that his activities on the Site were unauthorized and that he was in violation of
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`CWA section 404 and directing him to cease all work below Perkins Slough’s
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`ordinary high water mark. This letter also informed Defendant that EPA would
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`serve as the lead enforcement agency to resolve the alleged violations.
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`39. Throughout 2018 and early 2019 EPA engaged Defendant in
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`negotiations to voluntarily remedy his alleged violations. During these negotiations
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`Defendant expressed his willingness to remove the illegal fill and restore the Site,
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`COMPLAINT - 7
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`retained an environmental consultant, and conferred with EPA to develop an
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`acceptable restoration plan.
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`40.
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`In July and August 2019, after EPA informed Defendant that the
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`scope of his draft restoration plan was adequate, Defendant notified EPA that he
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`had abandoned his efforts to voluntarily remedy the alleged violations and that he
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`refused to remove the dam at the Site. Defendant has since refused to negotiate the
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`voluntary remediation of his alleged violations.
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`41. The dam Defendant constructed remains in place at the Site and
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`continues to encumber Perkins Slough.
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`42. The activities described in Paragraphs 29 through 31 and Paragraph
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`41 resulted in the unauthorized discharges of “pollutants,” as defined in CWA
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`section 502(6), 33 U.S.C. § 1362(6), including fill material, into Perkins Slough at
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`the Site.
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`43. Defendant did not obtain a permit from the Corps for the discharges of
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`dredged and/or fill material into waters of the United States as required by CWA
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`sections 301(a) and 404, 33 U.S.C. §§ 1311(a), 1344.
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`44. Upon information and belief, Defendant conducted, supervised, or
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`otherwise controlled the unauthorized discharges described in Paragraphs 29
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`through 31 and Paragraph 41.
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`45. Defendant has not taken corrective action and/or provided
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`compensatory mitigation for the losses to waters of the United States.
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`COMPLAINT - 8
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`CLAIM FOR RELIEF
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`46. Plaintiff re-alleges Paragraphs 1 through 45 and incorporates those
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`allegations by reference.
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`47. Defendant is a “person” within the meaning of CWA section 502(5),
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`33 U.S.C. § 1362(5).
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`48. Perkins Slough is a perennial stream and tributary to the Pend Oreille
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`River, a TNW and the Slough is a “water of the United States” within the meaning
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`of CWA section 502(7), 33 U.S.C. § 1362(7).
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`49. Perkins Slough flows from the Site and joins with the Pend Oreille
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`River less than one mile to the east of the Site. A relatively permanent connection
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`and significant nexus exist between the Slough and the Pend Oreille River. The
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`Slough, either alone or in combination with similarly situated waters in the region,
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`significantly affect the chemical, physical, and biological integrity of downstream
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`waters, including the Pend Oreille River. The Pend Oreille River is currently used,
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`was used in the past, and is susceptible to use in interstate and/or foreign
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`commerce.
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`50. Through the activities described in this Complaint, Defendant and/or
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`persons acting on his behalf caused dredged and/or fill material to be discharged
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`into Perkins Slough. The dredged or fill material that Defendant and/or persons
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`acting on his behalf caused to be discharged includes, inter alia, dredged spoil,
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`rock, sand, and/or cellar dirt, all of which are “pollutants” within the meaning of
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`CWA section 502(6), 33 U.S.C. § 1362(6).
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`51. Defendant and/or persons acting on his behalf used mechanized land-
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`clearing and earthmoving equipment to cause the discharges. These types of
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`COMPLAINT - 9
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`equipment are “point source[s]” within the meaning of CWA section 502(14), 33
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`U.S.C. § 1362(14).
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`52. Defendant did not obtain a permit from the Corps for the discharges of
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`dredged and/or fill material into waters of the United States, as required by CWA
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`sections 301(a) and 404, 33 U.S.C. §§ 1311(a), 1344. Defendant was not
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`authorized to discharge dredged and/or fill material into waters of the United States
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`at the Site.
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`53. Defendant owned and/or otherwise controlled the property on which
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`each unauthorized discharge of dredged and/or fill material into waters of the
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`54. Defendant planned, conducted, directed, contracted for, supervised
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`and/or otherwise controlled and/or participated in the unauthorized activities at
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`issue on the Site.
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`55. Therefore, by engaging in unauthorized discharges of dredged and/or
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`fill material into Perkins Slough, Defendant has violated and continues to violate
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`CWA section 301(a), 33 U.S.C. § 1311(a). Each day that such material remains in
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`place constitutes a separate violation of CWA section 301(a), 33 U.S.C. § 1311(a).
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`56. Under CWA sections 309(b) and (d), 33 U.S.C. §§ 1319(b) and (d),
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`Defendant is subject to injunctive relief and civil penalties for violating CWA
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`section 301(a), 33 U.S.C. § 1311(a).
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`57. Unless enjoined, Defendant is likely to continue to allow dredged
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`and/or fill material to remain in waters of the United States at Perkins Slough in
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`violation of CWA section 301, 33 U.S.C. § 1311.
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`COMPLAINT - 10
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`PRAYER FOR RELIEF
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`Plaintiff the United States respectfully requests that this Court order the
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`following relief:
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`1.
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`That Defendant 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 Defendant be enjoined to undertake measures, at his own
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`expense and at the direction of EPA, to completely restore the Site and conduct
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`mitigation for irreversible environmental damage;
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`3.
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`That Defendant be enjoined to comply with the CWA’s requirements
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`and its implementing regulations in the future;
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`4.
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`That Defendant be assessed a civil penalty under CWA section
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`309(d), 33 U.S.C. § 1319(d), for each day that he has been in violation of CWA
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`section 301(a), 33 U.S.C. § 1311(a);
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`5.
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`That the United States be awarded costs and disbursements in this
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`action; and
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`6.
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`That this Court grant the United States such other relief as the Court
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`may deem just and proper.
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`COMPLAINT - 11
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`Case 2:20-cv-00304-SAB ECF No. 1 filed 08/24/20 PageID.12 Page 12 of 12
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`Respectfully submitted,
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`JEFFREY BOSSERT CLARK
`Assistant Attorney General
`U.S. Department of Justice
`Environment and Natural Resources Division
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`/s/ Gus Maxwell
`Gus Maxwell
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`/s/ Brian S. Uholik
`Brian S. Uholik
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`U.S. Department of Justice
`Environment and Natural Resources Division
`Environmental Defense Section
`P.O. Box 7611
`Washington, DC 20044
`(202) 514-0135 (Maxwell)
`(202) 305-0733 (Uholik)
`gustavus.maxwell@usdoj.gov
`brian.uholik@usdoj.gov
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`COMPLAINT - 12
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