Case No: U.S. District Court for the Northern District of Indiana No. 4:19-cv-00071
Representing the Hoosier Environmental Council, the Indiana Audubon Society, and numerous residents of Lake Village, Indiana in a federal lawsuit that spanned nearly five years, CLC achieved a major victory for wetlands and government accountability. The case arose when a Texas-based dairy company filled numerous ditches that drain to the Kankakee River, installed an extensive drain tile system including 77 miles of underground drainage pipes, and filled more than 700 acres of farmed wetland to make way for a massive industrial dairy operation. The site is in the historic bed of Beaver Lake (once the largest inland lake in Indiana and part of the Grand Kankakee Marsh before it was drained in the early 1900s) and surrounded by the Kankakee Sands Restoration Area, which includes thousands of acres of wetlands and native prairie restored by The Nature Conservancy.
The Texas company altered this historically significant and ecologically sensitive land without first consulting the Army Corps of Engineers to see if a Section 404 permit would be necessary for the work. Instead, nearly two years after-the-fact, when residents and CLC attorneys raised concerns, the company finally contacted Army Corps. Army Corps issued a jurisdictional determination concluding that there are no jurisdictional wetlands or surface waters at the site without assessing whether there were jurisdictional waters before the site was altered — effectively giving the company a free pass for attempting to evade regulation. The agency’s rationale rested largely on the fact that since the land had been cropped, it was not wetland and that the drainage ditches were not regulated because the company claimed they were used for irrigation.
Reversing the Army Corps’ determination as “arbitrary and capricious,” unsupported by record evidence, and a significant departure from the agency’s own technical guidance, the federal judge directed the Army Corps to go back to the drawing board and do a proper wetland and waters investigation. Specifically, the court ordered the agency to follow the law and its own technical guidance and evaluate whether the land—before it was altered—had wetland hydrology and soils, and whether the filled ditches had relatively permanent flow. If so, the land, even though cropped, would be considered a farmed wetland, and the ditches would be perennial and within the Army Corps’ regulatory control. The court’s decision is a huge win for protection of wetlands and waterways on farmland that so often get destroyed under a flawed reading of the Clean Water Act as exempting such waters from Army Corps’ jurisdiction, just because they are on agricultural land.
As part of the case, CLC also brought a citizen enforcement suit against the Texas company for violating Section 404 of the Clean Water Act. That claim was settled after the district court overturned the Army Corps’ flawed jurisdictional determination, two rounds of mediation, and extensive negotiations. The specific terms of settlement are confidential but generally provide tremendous environmental benefit and protection for the area from water pollution and animal waste generated by the dairy. The district court’s decision also paved the way for CLC to seek recovery of its attorney fees and costs of litigation against the Army Corps.
Current Status:
On March 4, 2024, the district court entered its final order of dismissal and consent judgment, which retains the court’s jurisdiction to enforce the Parties’ settlement agreement and triggered CLC’s 30-day window to seek fees against Army Corps under the Equal Access to Justice Act—a petition that CLC filed on April 3, 2024. Once the fee petition is fully briefed, the court will issue its ruling.
