Key Federal Court Decisions for Pond Builders

Sources checked September 28, 2026

In Sackett v. EPA, 598 U.S. 651 (May 25, 2023), the Supreme Court held that the Clean Water Act's use of "waters" covers only relatively permanent, standing or continuously flowing bodies of water forming geographic features described in ordinary parlance as streams, oceans, rivers and lakes, and that the Act extends only to wetlands that are "as a practical matter indistinguishable from waters of the United States." Whoever asserts jurisdiction over an adjacent wetland must show that the adjacent body of water is itself a water of the United States (a relatively permanent body of water connected to traditional interstate navigable waters) and that the wetland has a continuous surface connection with that water, making it difficult to tell where the water ends and the wetland begins. [1]

Two earlier Supreme Court decisions addressed ponds. SWANCC (Jan. 9, 2001), over an abandoned sand and gravel pit whose old excavation trenches had become permanent and seasonal ponds, held that the Corps' regulation, as applied to that site through the "Migratory Bird Rule," exceeded the Corps' authority under section 404(a). In Rapanos (June 19, 2006) the plurality said isolated ponds were not "waters of the United States" in their own right. [2][3]

Federal appeals courts have described the section 404(f) exemptions, which include discharges "for the purpose of construction or maintenance of farm or stock ponds," as narrow (Akers, 9th Cir. 1986, noting the Fifth and Seventh Circuits' view; Brace, 3d Cir. 1994), and have put the burden on the person claiming an exemption to show both that the activity fits section 404(f)(1) and that it avoids the section 404(f)(2) "recapture" provision (Akers; Brace; Greenfield Mills, 7th Cir. 2004). [4][5][6]

In Craig v. U.S. Army Corps of Engineers (D.S.C. Oct. 29, 2014), a district court held that the federal agencies' determination that a landowner's pond, dammed on a creek, was entitled to the farm pond exemption, provided he met six conditions set by the Corps' Charleston District, was not arbitrary or capricious. [7]

In the first Sackett v. EPA decision (Mar. 21, 2012) the Supreme Court held that the EPA compliance order the landowners received was final agency action reviewable under the Administrative Procedure Act, and in Hawkes (May 31, 2016) it held that a Corps approved jurisdictional determination is final agency action judicially reviewable under the APA. Hawkes also explained that a "negative" approved determination, stating that the property does not contain jurisdictional waters, creates a five-year safe harbor from civil enforcement proceedings brought by the Government. For the point that a final determination binds the Government, the Court relied on a 1989 Corps-EPA memorandum of agreement, which it said plainly makes all final determinations binding; Justice Kennedy's concurrence noted the Government's statement in the case that the memorandum does not have binding effect (see the conflict noted below). [8][9][10]

In United States v. Andrews (D. Conn. Mar. 27, 2024) the court ordered the landowner to restore the disturbed wetlands, using as a substantive guide a government plan that includes filling in the unauthorized ditches and the pond, and delayed ordering the civil penalties it found appropriate, provided he complies and restoration is completed. [11]

In Mlaskoch (D. Minn. 2014), where landowners expanded three ponds and created a new one, the court noted that numerous courts have applied the five-year limit in 28 U.S.C. 2462 to government actions for Clean Water Act civil penalties, and held that the limit does not bar the government's claims for restoration or other injunctive relief; Rutherford Oil (S.D. Tex. 2010) likewise held that it does not apply to the government's ability to seek injunctions. [12][13]

In Loper Bright Enterprises v. Raimondo (June 28, 2024) the Supreme Court overruled Chevron: courts must use their own judgment in deciding whether an agency acted within its statutory authority and may not defer to an agency's reading of the law simply because a statute is ambiguous. The Court said it was not calling into question prior cases that relied on Chevron: their holdings that specific agency actions are lawful remain subject to statutory stare decisis, and mere reliance on Chevron is not a special justification for overruling them. [14]

Supreme Court decisions on which waters are federal

Sackett (2023) adopted the Rapanos plurality's reading of "waters" and rejected EPA's "significant nexus" test, saying the Clean Water Act never mentions it, so EPA has no statutory basis to impose it. The Court also said that wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby. [1]

The Court acknowledged that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells. In footnote 16 it said a barrier separating a wetland from a water of the United States would ordinarily remove that wetland from federal jurisdiction, but a landowner cannot carve wetlands out of jurisdiction by illegally building a barrier on covered wetlands; an unlawful barrier that EPA can order removed poses no bar to jurisdiction. [1]

Sackett also called the Act a "potent weapon": property owners who negligently discharge pollutants into covered waters may face severe criminal penalties including imprisonment, with higher penalties for knowing violations, and on the civil side the Court described fines of over $60,000 per day for each violation (as of 2023) and a 5-year statute of limitations (28 U.S.C. 2462). It cited Borden Ranch, where the agency counted each of 348 passes of a plow through jurisdictional soil as a separate violation. [1]

In Rapanos v. United States (June 19, 2006) the Court's judgment was only that the lower-court judgments were vacated and the cases remanded. Justice Scalia's four-Justice plurality limited "waters" to relatively permanent, standing or continuously flowing bodies of water and excluded channels with intermittent or ephemeral flow, while Justice Kennedy's concurrence would cover wetlands that, alone or with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as navigable. [3]

County of Maui v. Hawaii Wildlife Fund (Apr. 23, 2020) held that a permit is required for a direct discharge from a point source into navigable waters or for the "functional equivalent of a direct discharge": a pipe ending a few feet from navigable waters whose pollutants travel those feet through groundwater clearly needs one, while a pipe ending 50 miles away whose pollutants mix with much other material and reach navigable waters only many years later likely does not. Of the seven factors the Court said may be relevant, time and distance will be the most important in most cases, but not necessarily every case. [15]

In Hawkes the Court relied on a 1989 Corps-EPA memorandum of agreement for the point that a final determination is binding on the Government in later federal action or litigation, and said the memorandum plainly makes all final determinations binding, whether in special or non-special cases. [10]

Official sources disagree

  • Whether the 1989 Corps-EPA memorandum binds the Government. The Hawkes majority (2016) said the memorandum plainly makes all final determinations binding. Justice Kennedy's concurrence noted the Government's statement in the case that the memorandum does not have binding effect and can be revoked or amended at EPA's unfettered discretion, and Justice Ginsburg noted that the United States does not share the Court's reading of it. [10]

The farm-pond exemption, maintenance and recapture

In United States v. Akers (9th Cir. Mar. 26, 1986), an appeal from a preliminary injunction that the court affirmed, the court rejected the argument that a three-mile dike bisecting wetlands was an exempt irrigation facility: however the dike was characterized, building it required a permit provided it had the effect of keeping water from the wetlands, and the district court's finding that it was not one of the structures the irrigation-ditch regulation specifies was not shown to be clearly erroneous. The court also said it did not believe Congress intended to place the burden of Corps permit regulation on farmers who merely change from one wetland crop to another. [4]

In United States v. Brace (3d Cir. 1994), a Pennsylvania farm case, the court read the "normal farming" exemption to cover only activities that are part of an established farming operation at the site itself, not the owner's overall holdings, and held that an operation is not ongoing where modifications to the hydrological regime (here, excavating and burying four miles of plastic drainage tubing) are needed to resume it. It held that the drainage-ditch exemption covers maintenance but not construction of drainage ditches, that excavating the site and burying the tubing was construction rather than "continuing maintenance," and that spreading the dredged material over the rest of the site was a separate activity not covered by any exemption. [5]

The Brace court held that the district court erred in implying that the United States bears the burden on recapture. Because no exemption applied, it said it need not reach recapture, though it noted that the district court's no-recapture conclusion was incorrect as a matter of law because draining the wetland to convert it to crop production fell "squarely within the statutory definition of recapture." It reversed the judgment for the farmer and remanded for entry of judgment for the United States and assessment of penalties. [5]

The same farmer bought a neighboring parcel with about fourteen acres of wetlands in 2012 and, with his sons, cleared and drained them without a permit. The district court struck his summary-judgment brief as a sanction, granted summary judgment for the government on liability and ordered him to propose a deed restriction and restoration plan; on interlocutory appeal, before any penalty was set, the Third Circuit (June 11, 2021) held the sanction was not an abuse of discretion, affirmed, and stated that he must restore the wetlands he tore up. [16]

In Borden Ranch (9th Cir. Aug. 15, 2001) the court held that even normal plowing can be regulated if it falls under recapture, and that deep ripping to convert ranch land to orchards and vineyards was governed by the recapture provision: converting the land brought it into a use to which it was not previously subject, and destroying the soil layer impaired the flow of nearby navigable waters. The Supreme Court affirmed by an equally divided Court on Dec. 16, 2002, with Justice Kennedy not participating. [17][18]

Greenfield Mills v. Macklin (7th Cir. Mar. 19, 2004) applied the exemption for maintenance of currently serviceable structures such as dams. Under the Corps' regulation, maintenance does not include modifications that change the character, scope or size of the "original fill design," which the court, adopting EPA's and the Corps' view, read as referring to the dam, not the pond or the river; and the court held that only dredging reasonably necessary to the proposed maintenance is exempt. It also held that recapture applies only when both conditions are present: a purpose of bringing an area of navigable waters into a new use, and impairment of flow or circulation or reduction of reach. [6][19]

Craig describes one Corps district's farm-pond practice: the landowner gave the Charleston District a completed Agricultural Irrigation Pond Exemption Information Form, answers to the district's guidance questions, topographic maps, aerial photos and a water budget prepared by a certified professional engineer, and in June 2012 the Corps replied by letter that the pond would be exempt provided six conditions were met. The conditions were that the pond not exceed the size required for a normal farming or ranching operation; be built specifically for irrigation or livestock watering; minimize wetland impacts; involve no discharge of toxic pollutants or hazardous waste in its construction; not convert extensive areas of water to dry land or impede circulation or result in significant alterations to the flow, circulation, reach or size of waters of the United States; and use stabilization and sediment controls during and after construction. [7]

The Craig order also describes the Corps' practice of allowing sufficient time to plant crops after an impoundment is built for irrigation, typically not more than 18 months after impoundment construction. The court stressed that the landowner's obligation to meet the exemption's conditions is continuing and that all parties recognized that failing in any way to comply would void the exemption; the Corps' letter also warned that changing the pond's use from irrigation or livestock watering to a non-farming purpose would void it and require a Department of the Army permit. [7]

On recapture in Craig, the federal defendants conceded that the pond, built so the landowner could plant an orchard, was a "new use," so the court analyzed only whether flow or circulation was impaired or reach reduced. The order recites, as the plaintiffs' averment, that the dam fills about 100 linear feet of the creek and the pond inundates about 500 linear feet. The court quoted an EPA guidance letter the federal defendants relied on (all impoundments interfere with flow to some extent, so recapture must be applied in a reasonable way; ponds with minimal impacts would not be recaptured; and, while each case is evaluated on its specific facts, smaller ponds and ponds sited to minimize impacts are more likely to be exempt) and said the agencies' analysis seemed to comport with it. [7]

In Duarte Nursery (E.D. Cal. June 10, 2016) the court held the Clean Water Act is a strict liability statute and rejected the normal-farming exemption because there was no evidence of farming on the property between 1988 and the summer of 2012, so the tillage was not part of an established and ongoing farming activity, and granted the United States summary judgment; it found the wetlands had a "significant nexus" to Coyote Creek, a test Sackett later rejected. A consent decree entered Dec. 7, 2017, in which the defendants did not admit the facts alleged, required a $330,000 civil penalty and $770,000 of off-site compensatory mitigation. [1][20][21]

Pond and impoundment decisions since Sackett

Ragsdale v. JLM Construction Services (W.D. Tex. June 11, 2024) was a rancher's citizen suit over sediment-laden stormwater from a neighboring construction site that accumulated on his pastures and in a stock tank that, he testified, his father installed to collect runoff from a county road; after Sackett the rancher conceded that the stock pond, drainage ditches, culverts and trenches are not covered by the Act. The court quoted the September 2023 regulatory exclusion for artificial lakes or ponds created by excavating or diking dry land to collect and retain water and used exclusively for such purposes as stock watering, irrigation, settling basins or rice growing, but did not rule on whether it applied. It held that a wet-weather creek on the ranch, which carried water only a few times a year after substantial rain, is an ordinarily dry channel and not a water of the United States, and entered judgment for the defendant. [22]

In Conservation Law Foundation v. Town of Barnstable (D. Mass. June 5, 2025), a citizen suit over nitrogen from a town wastewater facility, the court held, following SWANCC, that allegations that saleable parcels include parts of four Cape Cod ponds, that many Cape Cod property sales are interstate transactions and that the ponds draw out-of-state tourists ("migratory people, rather than birds") were insufficient to make those ponds "waters of the United States," and dismissed the counts that relied on them. For four other ponds alleged to have a continuous surface connection to conceded federal waters it refused to dismiss, saying it could not conclude as a matter of law from aerial photos and street-view images that no continuous surface connection exists because, for example, streams may run under a road where an aerial photograph would not show them; it distinguished a case where the claimed link was only surface runoff and groundwater, which "plainly cannot form a continuous surface connection." [23]

United States v. Sharfi (S.D. Fla.) was a government enforcement suit over fill in wetlands on a Martin County, Florida site; after a Corps cease-and-desist letter (Apr. 30, 2018) and a later Corps email, the defendants built dirt roads, placed sod, deposited sand and excavated ponds, among other work. The magistrate judge found (Sept. 21, 2024) that the man-made ditches nearest the site were at most intermittent or ephemeral channels with seasonal flow, which does not meet Sackett's "relatively permanent" standard; on Dec. 30, 2024 the district judge adopted the recommendation, agreed that a "continuous surface connection" means a surface-water connection, and granted summary judgment to the landowners. [24][25]

In United States v. Andrews, where the government alleged the owner filled about 13.3 of 16.3 acres of wetlands on his Connecticut property, the Second Circuit (summary order, Mar. 19, 2025) rejected his argument that the case should have been dismissed because there is no surface water on his property and affirmed the restorative injunction; the Supreme Court denied his petition for review (certiorari) on June 1, 2026. The district court (Mar. 27, 2024) ordered restoration under a court-appointed special master using the government's plan as a substantive guide: remove imported fill, regrade to re-establish wetland hydrology, fill in the unauthorized ditches and the pond, replace or remove a stream crossing and road, plant, and manage invasive species, with active restoration within a year followed by seven years of monitoring. [11][26][27]

The Andrews court found a $2 million section 301 penalty and a $77,500 section 308 penalty appropriate, subject to possible reduction when the restoration plan is completed. Given an estimated average restoration cost of $3,030,000 for the 13.3 affected acres and the lack of financial information, it delayed ordering penalties provided he complies and restoration is completed. [11]

Cottonwood Environmental Law Center v. Yellowstone Mountain Club (D. Mont.) concerned two golf-course ponds (water hazards). One has an overflow outlet that, when water levels rise too high during rainfall or snowmelt, releases water into an upland stream 3,500 feet from the South Fork of the Gallatin River. On Dec. 19, 2025 the court found genuine factual disputes about the outlet and the waterway it empties into, and denied summary judgment on whether the ponds discharge pollutants to a navigable water. After a jury trial (Feb. 3-5, 2026) the clerk entered judgment for the club on Feb. 6, 2026, and the plaintiff appealed to the Ninth Circuit. [28][29]

In United States v. Sweeney (E.D. Cal. Oct. 18, 2024) the court denied a new trial, holding that Sackett was no intervening change in law for its earlier finding that the owner's unpermitted, non-exempt construction of a nearly mile-long levee on Point Buckler Island, which closed seven breaches in an old levee and eliminated tidal exchange to nearly 30 acres, violated the Act, because the fill went directly into tidal channels and tidal waters were and remain navigable waters. On July 10, 2025 the court stayed enforcement of the restoration injunction while the John Muir Land Trust restores the island, preserving the United States' right to seek a civil penalty assessment if the stay is lifted. [30][31]

Other decisions since Sackett on streams, ditches and wetlands

Two 2023 preliminary injunctions enjoined EPA and the Army from implementing or enforcing the January 2023 WOTUS rule, each only in the plaintiff states: Texas and Idaho (Texas v. EPA, S.D. Tex. Mar. 19, 2023) and the 24 plaintiff states in West Virginia v. EPA (D.N.D. Apr. 12, 2023). As of EPA's rule-status page last updated Sept. 9, 2026, those 26 states are where the agencies apply the pre-2015 regulatory regime, interpreted consistent with Sackett. In Kentucky v. EPA (6th Cir. July 29, 2024) the court vacated a dismissal for lack of standing and remanded, noting that the agencies' post-Sackett amendment of the rule "alleviated the vast majority" of the plaintiffs' alleged harms. [32][33][34][35]

In Lewis v. United States (5th Cir. Dec. 18, 2023) the court held that Sackett controls and that landowners' Livingston Parish, Louisiana property lacks wetlands with a continuous surface connection to a relatively permanent water, because the nearest relatively permanent water was miles away, separated by roadside ditches, a culvert and a non-relatively permanent tributary; it remanded for entry of judgment that the tracts are not waters of the United States. Reviewing a Corps approved jurisdictional determination for a 19-acre Livingston Parish property, the district court in Lewis (M.D. La. Jan. 29, 2025) held that the Corps' view that intermittent flow, even flow that is both seasonal and intermittent, suffices for jurisdiction is not consistent with the statute, and found that a bayou the Corps itself called intermittent is not a tributary of the United States on the property. [36][37]

In the 2025 district court ruling in Lewis, the Corps had argued, citing the 2008 EPA/Corps Rapanos Guidance, that a relatively permanent water flows at least seasonally (typically three months) and not solely in response to precipitation; the court said it knew of no post-Sackett court holding that a tributary with only intermittent flow, not continuous for at least some months of the year, may be relatively permanent. The landowners had first requested a jurisdictional determination in 2014 and received the approved one on Jan. 19, 2021; on Sept. 25, 2026 the court dismissed without prejudice, for lack of subject-matter jurisdiction, their Federal Tort Claims Act damages claims, including claims over the Corps' delays in processing their requests. [37][38]

In Glynn Environmental Coalition v. Sea Island Acquisition (11th Cir. July 29, 2025), a landowner that filled a wetland on a 0.49-acre Georgia parcel under a nationwide general permit, after obtaining a Corps preliminary jurisdictional determination, was held not to have waived its right to contest Clean Water Act jurisdiction in a later citizen suit alleging violations outside the permit; the first of the court's three reasons was that the preliminary-determination waiver applies only to actions to enforce the permit authorization. The court held that culverts and pipes that might sometimes connect the wetland to the salt marsh, "prior tidal exchange," and saturation or hydric soils did not plausibly show a continuous surface connection, and affirmed dismissal, while noting that the landowner could not have destroyed jurisdiction by illegally building a road to create a demarcation. [39]

In Inland Empire Waterkeeper v. Corona Clay Co. (9th Cir., amended Sept. 3, 2026), after a jury found 12,541 Clean Water Act violations at a facility near Temescal Creek, the court held that proof the creek is a water of the United States is not needed for federal subject-matter jurisdiction, but reversed the denial of a new trial and remanded because it could not decide on the record whether the creek meets the post-Sackett standard. [40]

Two 2024 rulings came at the pleading stage. In United States v. Valentine (E.D.N.C. Sept. 27, 2024) the court denied the defendants' motion for judgment on the pleadings; as the Sharfi court later described it, the Valentine court had to accept as true the allegation that the wetland had a continuous surface connection with the Roanoke River and its tributaries, and whether that connection had to be surface water was not at issue. On May 15, 2025 the court stayed Valentine to give the agencies an opportunity to provide administrative guidance, and orders of Sept. 8, 2025, Jan. 12-13, 2026 and June 15, 2026 continued the stay. On Sept. 14, 2026 the parties, noting the agencies' Nov. 17, 2025 proposed WOTUS rule and Sept. 4, 2026 supplemental proposal, jointly asked the court to keep the case stayed for another 120 days, and the docket shows a further order on a motion to stay entered Sept. 15, 2026, whose text has not been read, so the case's status since then is not confirmed. [25][41][42][43]

In United States v. Ace Black Ranches (D. Idaho Aug. 29, 2024), where the government alleged that a ranch built road crossings in the Bruneau River and wetlands, disturbed the riverbed while mining sand and gravel, and leveled nearly all of its wetlands for a center pivot irrigation system, the court dismissed without prejudice, with 30 days to amend, a complaint that used "adjacent wetlands" at least twenty-nine times but never alleged a continuous surface connection with the river. The government filed an amended complaint on Sept. 27, 2024, and the ranch moved to dismiss it on Nov. 1, 2024; since March 2025 the case has been held in abeyance at the government's request, most recently through Feb. 16, 2027 (order of Aug. 18, 2026). [44][45]

Official sources disagree

  • What counts as a "continuous surface connection." The Southern District of Florida held in Sharfi (Dec. 30, 2024) that it means a surface-water connection, not a surface path through which water occasionally flows, and distinguished the Connecticut district court's 2023 Andrews ruling. In Andrews the Second Circuit, in a summary order (Mar. 19, 2025), said the Act "does not require surface water" but only soil that is regularly saturated by surface or ground water. [25][26]
  • Seasonal and intermittent flow. San Francisco Baykeeper v. City of Sunnyvale (N.D. Cal. Dec. 11, 2023) held that Sackett still protects seasonal rivers, creeks and streams that are tributaries to covered waters: creeks that flow continuously during some months and not in dry months, and more than in direct response to precipitation, are relatively permanent. It also noted that Sackett did not end the rule that man-made waters can qualify. In Sharfi (S.D. Fla. 2024) the court found that the man-made ditches nearest the site, at most intermittent or ephemeral channels with seasonal flow, did not meet Sackett's standard, and Lewis (M.D. La. 2025) rejected the Corps' view that intermittent flow, even seasonal and intermittent flow, suffices, while saying it knew of no post-Sackett court holding that a tributary whose flow is not continuous for at least some months of the year may be relatively permanent. The Ninth Circuit in Corona Clay (amended Sept. 3, 2026) said that its 2007 Moses decision, which treated a seasonally intermittent stream flowing into a water of the United States as covered, read the Rapanos plurality in a way that is "difficult to square with Sackett," without deciding how far Moses survives. [24][37][40][46]

Draining a pond, releasing water or sediment, and sealing

In Greenfield Mills v. Macklin (7th Cir. Mar. 19, 2004), Indiana DNR employees drained a 1.75-acre supply pond, formed by damming the Fawn River, into the river. The court held that discharging dredged material removed from the pond into a contiguous water is an "addition" of dredged spoil, so the defendants' actions were subject to the section 404 permit requirement unless an exemption applied, said in a footnote that it believed the dam was a "point source" because its artificial mechanism was used to convey pollutants into the river, and held that section 404, not the section 402 NPDES program, was the only permitting process that applied. [6][19]

The court held a trier of fact could find that the dredging, particularly from 11:00 a.m. to 3:00 p.m., was not reasonably necessary to the proposed dam maintenance; the plaintiffs' evidence, viewed in their favor at summary judgment, showed that 100,000 cubic yards of unconsolidated sediment had been deposited in the river, altering its flow. On remand the district court granted summary judgment to the plaintiffs on June 28, 2005, after the defendants conceded their actions were not reasonably necessary to the dam repairs, and held them liable for any damage to the river from the May 18, 1998 event. [6][47]

Earlier appellate decisions on dams (National Wildlife Federation v. Gorsuch, D.C. Cir. 1982; National Wildlife Federation v. Consumers Power, 6th Cir. 1988) deferred to EPA's view that dams did not add pollutants, so no NPDES permits were needed; as the Eleventh Circuit described them, both involved water that wound up where it would have gone anyway. Greenfield Mills said more recent cases had "undercut severely" those holdings and agreed with limiting them to the very circumscribed facts on which they were based. It noted the amici's point that those cases concerned normal dam operations that changed water quality, whereas in Greenfield Mills the sediment had settled out of the water and opening the control gates dredged it from its resting place and added it to the downstream waters. [6][48][49]

In South Florida Water Management District v. Miccosukee Tribe (2004) the Supreme Court held that a point source need not generate the pollutant; it need only convey it, as pipes, ditches, tunnels and conduits do. It remanded for fact-finding on whether a canal and a wetland were "meaningfully distinct" water bodies, saying that if they were not, the pump station moving water between them would not need an NPDES permit. [50]

Two appellate courts upheld EPA's Water Transfers Rule, under which moving pollutants between navigable waters is not an "addition," by deferring to EPA's reading of the statute as reasonable: Friends of the Everglades (11th Cir. June 4, 2009), which found the statutory language ambiguous, and Catskill Mountains Chapter of Trout Unlimited v. EPA (2d Cir. Jan. 18, 2017), which reversed a 2014 district court vacatur and reinstated the rule under Chevron deference. Loper Bright (2024) later overruled Chevron but said it was not calling into question prior cases that relied on Chevron: their holdings that specific agency actions are lawful remain subject to statutory stare decisis. [14][48][49]

County of Maui (2020), described above, used the example of a pipe that spews pollution directly into coastal waters: that is an "addition" of a pollutant to navigable waters from a point source, so a permit is required. The Court added that the requirement also clearly applies where a pipe ends a few feet from navigable waters and its pollutants travel those feet over the beach. [15]

Coeur Alaska v. Southeast Alaska Conservation Council (2009) held that EPA may not issue section 402 permits for fill material that falls under the Corps' section 404 authority, so a mine-tailings slurry defined by regulation as fill, to be placed in a 23-acre lake and raise its bed 50 feet, was properly permitted by the Corps, while EPA separately issued a section 402 permit for water discharged from the lake into the downstream creek. The Court read EPA's 2002 fill-rule preamble, which says settling suspended or settleable solids are not "fill material," as consistent with EPA's position that its new source performance standard applies to a discharge that is not fill material and does not apply to one that is; Justice Breyer's concurrence, not the Court's holding, said EPA would treat mine tailings placed directly into the lake as section 404 fill but would treat any spillover of the tailings, or chemicals from them, into a nearby waterway as requiring a section 402 permit. [51]

Enforcement, citizen suits and time limits

United States v. Robertson (9th Cir. Nov. 27, 2017) affirmed the convictions of a man who excavated and built a series of ponds on National Forest land and an adjacent private mining claim in Montana, discharging dredged and fill material into wetlands and a tributary, with jurisdiction found under the "significant nexus" test that Sackett later rejected. After he died, the Supreme Court (Apr. 15, 2019) vacated that judgment and remanded for consideration of whether the case is moot. [1][52][53]

Citizen suits under section 505 must allege an ongoing violation: Gwaltney (1987) requires citizen plaintiffs to allege in good faith a continuous or intermittent violation, and citizens, unlike EPA, may seek civil penalties only in a suit to enjoin or abate an ongoing violation. The 60-day notice gives the alleged violator a chance to come into complete compliance, and the suit is barred if EPA or the State starts enforcement within that period. In Laidlaw (2000) the Court held it was error to dismiss a citizen's civil-penalty claim as moot because the defendant came into compliance after suit was filed; the penalties are payable to the U.S. Treasury. [54][55]

In Benham v. Ozark Materials River Rock (10th Cir. Mar. 22, 2018), a man who recreates in Saline Creek, Oklahoma sued over a roadway built in the creek and fill in its wetlands without a permit; the district court imposed a $35,000 civil penalty and ordered a restoration plan that included a conservation easement, and the Tenth Circuit affirmed that the fill was a continuing violation under the district court's definition, which the defendant did not contest. Corps drive-through inspections that found no violations were not "diligent prosecution" barring the suit, and a notice naming the pollutants, locations (with an aerial photograph), Clean Water Act sections and a specific date of violation was adequate. [56]

The Fifth Circuit held in Atchafalaya Basinkeeper v. Chustz (2012) that citizens cannot sue to enforce the conditions of a Corps-issued section 404 permit, and Chief Judge Pryor of the Eleventh Circuit, concurring in Glynn (2025), wrote that he would join the Fifth and Third Circuits on that point. On former owners, a Rhode Island federal court said in 2013 that courts have reached divergent conclusions on citizen suits against defendants who no longer own the pollution source. [39][57][58]

In Gabelli v. SEC (2013), an SEC fraud case, the Supreme Court held that the five-year clock in 28 U.S.C. 2462 begins when the fraud occurs, not when it is discovered. In Mlaskoch (D. Minn. Mar. 31, 2014), where landowners expanded three ponds and created a new one, the court said the 2462 clock "begins with the violation," so penalties required violations after June 28, 2005, five years before the complaint; it postponed deciding the government's continuing-violation, equitable estoppel and tolling arguments. Mlaskoch and Rutherford Oil both held that the limit does not bar the government's claims for injunctive relief; Mlaskoch said courts have concluded that restoration orders and other injunctions in Clean Water Act cases are not subject to the five-year limit. In Andrews (D. Conn. 2021) the court treated the limit as a defense to be raised in the answer, not a ground for dismissing for lack of jurisdiction unless all of a claim's allegations are, on the face of the complaint, outside the limitations period and reduce the claim to less than colorable; in a footnote it said an injunction addressed to ongoing conduct and violations "cannot be time barred." In Kokesh v. SEC (2017), an SEC disgorgement case, the Supreme Court said a pecuniary sanction is a penalty under section 2462 only if it is sought to punish and to deter others, as opposed to compensating a victim. [12][13][59][60][61]

Corps tolling agreements appear in two recent rulings. In Mitchell v. Corps (M.D. La. Feb. 5, 2024), the owners alleged that their contractor turned a pit into a recreational pond with a levee, that they had a December 2010 tolling agreement with the Corps, and that the Corps took no action on their after-the-fact permit application from June 6, 2012 to Apr. 20, 2020; the court dismissed their suit without prejudice and did not rule on the agreement. In Phillips v. Corps (D. Utah Aug. 24, 2022) the court dismissed with prejudice a challenge to the Corps' requirement that landowners submit an after-the-fact application and sign a tolling agreement before appealing an approved jurisdictional determination. [62][63]

The Maslonka consent decree (E.D. Wash. Sept. 7, 2023) binds the owner's successors and assigns, requires removing an earthen dam built in Perkins Slough in September 2015 (estimated at 700 to 1,000 cubic yards of fill) and the sediment upstream and downstream of it, imposes a $50,000 civil penalty, and requires every deed or other conveyance of the listed property to state that the property is subject to the decree. The Bunn partial consent decree (D. Mont. 2021) covers excavation of three ponds and scalping of a floodplain that the owner says he began after the county floodplain administrator emailed that she would not require a permit for what was proposed; the Corps later notified him the work had occurred without required section 401 and 404 permits. It imposes a $50,000 penalty and says a transfer of the site does not relieve him of his obligations. [64][65]

In United States v. Smith (S.D. Ala. July 24, 2014), over five dams built about 1998 to 2004 without section 404 permits, the court imposed a $78,000 civil penalty against a statutory maximum it computed at $561,662,500 for 16,323 days, and granted in part a temporary restorative injunction. In a 2006 EPA Region 8 administrative consent order (not a court ruling), later buyers of a Colorado property, who said they had not known of the dredging and filling before buying, agreed, without admitting EPA's findings or any liability, to carry out on-site mitigation for about 6.22 acres of wetlands impacted by the previous owner, whose unauthorized discharges included placing spoil in a wetland while dredging a pond. [66][67]

Official sources disagree

  • Whether fill left in place is an ongoing violation for citizen suits. In Benham (10th Cir. 2018) the district court treated fill as a continuing violation until it is removed, a definition the defendant did not contest, and the Tenth Circuit affirmed that the roadway and wetland fill in Saline Creek were a continuing violation. The Fifth Circuit (Save the Cutoff, Aug. 7, 2025, unpublished) held that leaving in place fill placed in a creek in February 2022 was not an ongoing violation, because the fill's ongoing movement is a "residual effect" of a previous discharge, not a continuing discharge from a point source; the Southern District of Ohio (Ward, 2021), in an alternative ruling, said the mere presence of a pollutant does not meet the statute's requirements, and the Sixth Circuit, affirming Ward without deciding the question, said the federal circuits are split. [56][68][69][70]
  • Whether unremoved fill extends the government's five-year penalty period. Rutherford Oil (S.D. Tex. 2010) acknowledged that courts have split on whether the Act creates a continuing obligation to remedy the effects of violations, and held that a discharge is not a continuing violation just because the discharger fails to remedy its effects, so the period begins once the discharging ends. In Scruggs (S.D. Tex. 2009), where the government argued that an unpermitted rock groin extension and dredging results that remained in place continued to be violations, the magistrate judge found "a single violation with continuing effects" and the court declined to adopt the continuing-violation theory under the circumstances presented; Scruggs noted that United States v. Reaves (M.D. Fla. 1996) tolled the limit as long as the material remained. In Smith (S.D. Ala. 2014) the court treated the harm from four unpermitted dams as ongoing through trial when counting days toward the statutory maximum penalty. [13][66][71]

Section 401, Swampbuster, endangered species and migratory birds

In Hoopa Valley Tribe v. FERC (D.C. Cir. Jan. 25, 2019), where the states and the applicant had agreed to treat repeatedly withdrawn and resubmitted section 401 certification requests as new requests, the court held the withdrawal and resubmission did not trigger new review periods and that California and Oregon had waived their section 401 authority for a hydroelectric project. It declined to decide whether withdrawing a request and submitting a wholly new one would be legitimate. [72]

National Wildlife Federation v. Lohr (D.D.C. Feb. 22, 2024) vacated NRCS's 2020 final rule and remanded it to NRCS, because NRCS changed its policy on certifying pre-1996 wetland determinations without a reasoned explanation. On Oct. 8, 2024 the court denied the government's request to remand without vacating the rule while NRCS issued a new one. [73][74]

In litigation over the 2017 Nationwide Permit 12 for utility lines, a Montana federal district court held (Apr. 15, 2020) that General Condition 18 fails to ensure the Corps meets its Endangered Species Act section 7(a)(2) obligations because it delegates the initial effect determination to non-federal permittees, and remanded and vacated NWP 12 pending consultation. On July 6, 2020 the Supreme Court stayed the district court's May 11, 2020 partial vacatur and injunction, except as it applies to the Keystone XL pipeline, pending the Ninth Circuit appeal and any certiorari petition. [75][76]

Official sources disagree

  • Incidental take of migratory birds. The Fifth Circuit held in United States v. CITGO Petroleum (2015) that the Migratory Bird Treaty Act's ban on "takings" only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds, noting that cases can be found supporting either position. As FWS described it in 2021, the Southern District of New York (NRDC v. Department of the Interior, Aug. 11, 2020) rejected as contrary to the Act the Solicitor's opinion that it does not prohibit incidental take, and vacated that opinion; the United States filed a stipulation to dismiss its appeal on Feb. 25, 2021, and the Deputy Solicitor permanently withdrew the opinion on Mar. 8, 2021. [77][78]

Decisions

Sackett v. Environmental Protection Agency (Sackett II)

Supreme Court of the United States · May 25, 2023 · 598 U.S. 651 (2023), No. 21-454 [1]

Holding: The CWA's "waters" covers only relatively permanent, standing or continuously flowing bodies of water forming geographic features (streams, oceans, rivers, lakes); the CWA extends only to wetlands with a continuous surface connection to such waters so that they are indistinguishable from them; the significant nexus test has no statutory basis.

Why it matters for a pond: This is the controlling test today for whether a stream, drainage or wetland on a pond site is federally regulated, and therefore whether a Corps section 404 permit (or an exemption) is needed at all.

Later history: Reversed the Ninth Circuit (Sackett v. EPA, No. 19-35469 (9th Cir. Aug. 16, 2021)). On remand the district court entered judgment for the Sacketts (Sackett v. United States, No. 2:08-cv-00185, Dkts. 139, 140 (D. Idaho Oct. 5, 2023), as described in Lewis v. United States (5th Cir. 2023)). The agencies amended the 2023 WOTUS rule to conform (88 FR 61964).

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conclude that the Rapanos plurality was correct: the CWA’s use of “waters” encompasses “only those relatively perma- nent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordi- nary parlance as ‘streams, oceans, rivers, and lakes.’ ” ... In sum, we hold that the CWA extends to only those wet- lands that are “as a practical matter indistinguishable from waters of the United States.” ... This requires the party asserting jurisdiction over adjacent wetlands to es- tablish “first, that the adjacent [body of water constitutes]

Sackett v. Environmental Protection Agency

Supreme Court of the United States · May 25, 2023 · 598 U.S. 651 (2023), No. 21-454 [1]

Holding: The CWA's 'waters' are limited to relatively permanent, standing or continuously flowing bodies of water forming geographic features (streams, oceans, rivers, lakes).

Why it matters for a pond: Sets the outer limit of federal CWA jurisdiction over streams, drainages and ponds: only relatively permanent, standing or continuously flowing bodies of water qualify as "waters."

Later history: Judgment of the Ninth Circuit reversed and case remanded. EPA and the Army amended the 2023 Rule to conform (88 FR 61964, Sept. 8, 2023).

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we conclude that the Rapanos plurality was correct: the CWA's use of "waters" encompasses "only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic[al] features' that are described in ordinary parlance as 'streams, oceans, rivers, and lakes.' "

Sackett v. Environmental Protection Agency

Supreme Court of the United States · May 25, 2023 · 598 U.S. 651 (2023), No. 21-454 [1]

Holding: Two-part test for adjacent wetlands: adjacent water must itself be WOTUS (relatively permanent, connected to traditional navigable water) and the wetland must have a continuous surface connection making it hard to tell where water ends and wetland begins.

Why it matters for a pond: Decides whether wet areas on a pond site (e.g., in a draw or next to a creek) are federal wetlands that would need a Section 404 permit to fill or excavate.

Later history: Judgment of the Ninth Circuit reversed and case remanded. EPA and the Army amended the 2023 Rule to conform (88 FR 61964, Sept. 8, 2023).

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In sum, we hold that the CWA extends to only those wetlands that are "as a practical matter indistinguishable from waters of the United States." ... This requires the party asserting jurisdiction over adjacent wetlands to establish "first, that the adjacent [body of water constitutes] . . . 'water[s] of the United States,' (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins."

Sackett v. Environmental Protection Agency

Supreme Court of the United States · May 25, 2023 · 598 U.S. ___ (2023), No. 21-454 [1]

Holding: The CWA extends only to wetlands with a continuous surface connection to a relatively permanent body of water that is itself a water of the United States, making them practically indistinguishable from that water.

Why it matters for a pond: Limits which wetlands (and therefore which pond sites in or near wetlands) are federally regulated under Section 404; the agencies conformed 33 CFR 328.3 to this decision in 2023.

Later history: Agencies issued the conforming rule effective Sept. 8, 2023 (88 FR 61968); new WOTUS rulemaking proposed Nov. 20, 2025 and supplemented Sept. 9, 2026.

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In sum, we hold that the CWA extends to only those wet-lands that are "as a practical matter indistinguishable from waters of the United States." ... This requires the party asserting jurisdiction over adjacent wetlands to es-tablish "first, that the adjacent [body of water constitutes] . . . 'water[s] of the United States,' (i.e., a relatively perma-nent body of water connected to traditional interstate nav-igable waters); and second, that the wetland has a continu-ous surface connection with that water

Sackett v. Environmental Protection Agency

Supreme Court of the United States · May 25, 2023 · 598 U.S. 651 (2023), No. 21-454 [1]

Holding: The Court acknowledged that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells. Footnote 16: a barrier separating a wetland from a water of the United States would ordinarily remove that wetland from federal jurisdiction, but a landowner cannot carve wetlands out of jurisdiction by illegally constructing a barrier on covered wetlands.

Why it matters for a pond: Relevant to embankments, berms and dams: an illegally constructed barrier on wetlands otherwise covered by the CWA, which EPA can order removed, does not remove those wetlands from federal jurisdiction.

Later history: Judgment of the Ninth Circuit reversed and case remanded. EPA and the Army amended the 2023 Rule to conform (88 FR 61964, Sept. 8, 2023).

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We also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.16 ... Although a barrier separating a wetland from a water of the United States would ordinarily remove that wetland from federal jurisdiction, a ... landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA. ... that unlawful barrier poses no bar to its jurisdiction.

Sackett v. Environmental Protection Agency

Supreme Court of the United States · May 25, 2023 · 598 U.S. 651 (2023), No. 21-454 [1]

Holding: Nearby-but-separate wetlands are not covered; the 'significant nexus' test has no statutory basis.

Why it matters for a pond: A wet area or pond site near, but not touching, a stream is not federally covered because it is close by; the significant-nexus route used under older rules is no longer available.

Later history: Judgment of the Ninth Circuit reversed and case remanded. EPA and the Army amended the 2023 Rule to conform (88 FR 61964, Sept. 8, 2023).

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Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby. ... the CWA never mentions the "significant nexus" test, so the EPA has no statutory basis to impose it.

Sackett v. Environmental Protection Agency (Sackett II)

Supreme Court of the United States · May 25, 2023 · 598 U.S. 651 (2023), No. 21-454 [1]

Holding: The CWA's "waters" covers only relatively permanent, standing or continuously flowing bodies of water forming geographic features (streams, oceans, rivers, lakes); the CWA extends only to wetlands with a continuous surface connection to such waters so that they are indistinguishable from them; the significant nexus test has no statutory basis.

Why it matters for a pond: This is the controlling test today for whether a stream, drainage or wetland on a pond site is federally regulated, and therefore whether a Corps section 404 permit (or an exemption) is needed at all.

Later history: Reversed the Ninth Circuit (Sackett v. EPA, No. 19-35469 (9th Cir. Aug. 16, 2021)). On remand the district court entered judgment for the Sacketts (Sackett v. United States, No. 2:08-cv-00185, Dkts. 139, 140 (D. Idaho Oct. 5, 2023), as described in Lewis v. United States (5th Cir. 2023)). The agencies amended the 2023 WOTUS rule to conform (88 FR 61964).

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the CWA never mentions the “significant nexus” test, so the EPA has no statutory basis to impose it. ... This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable ... from any possibly covered waters. ... We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for fur- ther proceedings consistent with this opinion.

Sackett v. Environmental Protection Agency (Sackett II)

Supreme Court of the United States · May 25, 2023 · 598 U.S. 651 (2023), No. 21-454 [1]

Holding: The CWA's "waters" covers only relatively permanent, standing or continuously flowing bodies of water forming geographic features (streams, oceans, rivers, lakes); the CWA extends only to wetlands with a continuous surface connection to such waters so that they are indistinguishable from them; the significant nexus test has no statutory basis.

Why it matters for a pond: This is the controlling test today for whether a stream, drainage or wetland on a pond site is federally regulated, and therefore whether a Corps section 404 permit (or an exemption) is needed at all.

Later history: Reversed the Ninth Circuit (Sackett v. EPA, No. 19-35469 (9th Cir. Aug. 16, 2021)). On remand the district court entered judgment for the Sacketts (Sackett v. United States, No. 2:08-cv-00185, Dkts. 139, 140 (D. Idaho Oct. 5, 2023), as described in Lewis v. United States (5th Cir. 2023)). The agencies amended the 2023 WOTUS rule to conform (88 FR 61964).

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The CWA is a potent weapon. ... Property owners who negligently discharge “pollutants” into covered waters may face severe criminal penalties including impris- onment. §1319(c). These penalties increase for knowing violations. Ibid. On the civil side, the CWA imposes over $60,000 in fines per day for each violation. ... And due to the Act’s 5-year statute of limitations, 28 U. S. C. §2462, ... (upholding Agency decision to count each of 348 passes of a plow by a farmer through “jurisdictional” soil on his farm as a separate violation)

Rapanos v. United States (consolidated with Carabell v. U.S. Army Corps of Engineers)

Supreme Court of the United States · June 19, 2006 · 547 U.S. 715 (2006), Nos. 04-1034, 04-1384 [3]

Holding: No majority opinion. Judgments vacated and remanded. Four-Justice plurality (Scalia, J.): "waters of the United States" covers only relatively permanent, standing or continuously flowing bodies of water, and a wetland is covered only if it has a continuous surface connection to such a water. Justice Kennedy (concurring in the judgment): a wetland is covered if it has a "significant nexus" to traditionally navigable waters.

Why it matters for a pond: For 17 years the two Rapanos tests governed whether streams, drainages and wetlands on a pond site were federal. Sackett (2023) adopted the plurality test and rejected the significant nexus test, so pre-2023 decisions resting on the Kennedy test (e.g., Robertson) should be read with that in mind.

Later history: Sackett v. EPA (2023) adopted the Rapanos plurality formulation and held the significant nexus test has no statutory basis.

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the phrase “the waters of the United States” includes only those rela­ tively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as ... The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drain­ age for rainfall.

Rapanos v. United States (consolidated with Carabell v. U.S. Army Corps of Engineers)

Supreme Court of the United States · June 19, 2006 · 547 U.S. 715 (2006), Nos. 04-1034, 04-1384 [3]

Holding: No majority opinion. Judgments vacated and remanded. Four-Justice plurality (Scalia, J.): "waters of the United States" covers only relatively permanent, standing or continuously flowing bodies of water, and a wetland is covered only if it has a continuous surface connection to such a water. Justice Kennedy (concurring in the judgment): a wetland is covered if it has a "significant nexus" to traditionally navigable waters.

Why it matters for a pond: For 17 years the two Rapanos tests governed whether streams, drainages and wetlands on a pond site were federal. Sackett (2023) adopted the plurality test and rejected the significant nexus test, so pre-2023 decisions resting on the Kennedy test (e.g., Robertson) should be read with that in mind.

Later history: Sackett v. EPA (2023) adopted the Rapanos plurality formulation and held the significant nexus test has no statutory basis.

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Isolated ponds were not “waters of the United States” in their own right, see 531 U. S., at 167, 171, and presented no boundary-drawing problem ... Therefore, only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation be­ tween “waters” and wetlands, are “adjacent to” such waters and covered by the Act. Wetlands with only an intermit­ tent, physically remote hydrologic connection to “waters of the United States” do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters

Rapanos v. United States (consolidated with Carabell v. U.S. Army Corps of Engineers)

Supreme Court of the United States · June 19, 2006 · 547 U.S. 715 (2006), Nos. 04-1034, 04-1384 [3]

Holding: No majority opinion. Judgments vacated and remanded. Four-Justice plurality (Scalia, J.): "waters of the United States" covers only relatively permanent, standing or continuously flowing bodies of water, and a wetland is covered only if it has a continuous surface connection to such a water. Justice Kennedy (concurring in the judgment): a wetland is covered if it has a "significant nexus" to traditionally navigable waters.

Why it matters for a pond: For 17 years the two Rapanos tests governed whether streams, drainages and wetlands on a pond site were federal. Sackett (2023) adopted the plurality test and rejected the significant nexus test, so pre-2023 decisions resting on the Kennedy test (e.g., Robertson) should be read with that in mind.

Later history: Sackett v. EPA (2023) adopted the Rapanos plurality formulation and held the significant nexus test has no statutory basis.

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Held: The judgments are vacated, and the cases are remanded. ... wetlands possess the requi­ site nexus, and thus come within the statutory phrase “navi­ gable waters,” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly af­ fect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)

Supreme Court of the United States · January 9, 2001 · 531 U.S. 159 (2001), No. 99-1178 [2]

Holding: The Corps regulation at 33 CFR 328.3(a)(3) (1999), as clarified and applied through the "Migratory Bird Rule" (51 Fed. Reg. 41217) to an abandoned sand and gravel pit whose excavation trenches had become permanent and seasonal ponds, exceeds the authority granted under CWA section 404(a).

Why it matters for a pond: Isolated, non-navigable intrastate ponds (including ponds in old excavations) are not federally regulated merely because migratory birds use them. This is the origin of the rule that an isolated pond is not a "water of the United States" in its own right.

Later history: Reversed the Seventh Circuit (191 F.3d 845). Later relied on by the Rapanos plurality (2006) and by Sackett v. EPA (2023).

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remnant excavation trenches evolving into a scattering of permanent and seasonal ponds of varying size (from under one-tenth of an acre to several acres) and depth (from several inches to several feet). ... We hold that 33 CFR § 328.3(a)(3) (1999), as clarified and applied to petitioner’s balefill site pursuant to the “Migratory Bird Rule,” 51 Fed. Reg. 41217 (1986), exceeds the authority granted to respondents under § 404(a) of the CWA.

County of Maui, Hawaii v. Hawaii Wildlife Fund

Supreme Court of the United States · April 23, 2020 · 590 U.S. ___ (2020), No. 18-260 (slip opinion) [15]

Holding: The CWA requires an NPDES permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge, including pollutants that reach navigable waters after traveling through groundwater.

Why it matters for a pond: Mostly relevant to pipes, outfalls or other point sources that release pollutants into the ground near a stream or pond that is a water of the United States. Time and distance are usually the key factors.

Later history: Ninth Circuit judgment (886 F.3d 737) vacated and case remanded.

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We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. ... Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater ... the permitting requirement clearly applies. If the pipe ends 50 miles from navigable waters ... mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.

County of Maui, Hawaii v. Hawaii Wildlife Fund

Supreme Court of the United States · April 23, 2020 · 590 U.S. ___ (2020), No. 18-260 (slip opinion) [15]

Holding: The CWA requires an NPDES permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge, including pollutants that reach navigable waters after traveling through groundwater.

Why it matters for a pond: Mostly relevant to pipes, outfalls or other point sources that release pollutants into the ground near a stream or pond that is a water of the United States. Time and distance are usually the key factors.

Later history: Ninth Circuit judgment (886 F.3d 737) vacated and case remanded.

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(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pol- lution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case.

County of Maui v. Hawaii Wildlife Fund

Supreme Court of the United States · April 23, 2020 · 590 U.S. 165 (2020), No. 18-260 [15]

Holding: A permit is required for a direct point-source discharge into navigable waters or its functional equivalent (e.g., via groundwater).

Why it matters for a pond: Maui concerned wastewater injected into wells that reached the ocean through groundwater; its examples involve pipes emitting pollutants. The opinion does not discuss ponds or pond drawdowns.

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Consider a pipe that spews pollution directly into coastal waters. There is an “addition of ” a “pollutant to navigable waters from [a] point source.” Hence, a permit is required. ... We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. ... Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater ... (or over the beach), the permitting requirement clearly applies.

U.S. Army Corps of Engineers v. Hawkes Co., Inc.

Supreme Court of the United States · May 31, 2016 · 578 U.S. 590 (2016), No. 15-290 [9]

Holding: The Corps' approved jurisdictional determination (JD) is final agency action judicially reviewable under the APA.

Why it matters for a pond: A landowner who asks the Corps for an approved JD on a planned pond site gets a decision that can be challenged in court; a "negative" approved JD (no jurisdictional waters) gives a five-year safe harbor from government civil enforcement.

Later history: Affirmed the Eighth Circuit.

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Held: The Corps' approved JD is a fnal agency action judicially reviewable under the APA. ... A “negative” JD—i. e., an approved JD stating that property does not contain jurisdictional waters—creates a fve-year safe harbor from civil enforcement proceed- ings brought by the Government and limits the potential liability a prop- erty owner faces for violating the Clean Water Act. ... The judgment of the Court of Appeals for the Eighth Cir- cuit is affrmed.

United States Army Corps of Engineers v. Hawkes Co., Inc.

Supreme Court of the United States · May 31, 2016 · 578 U.S. 590 (2016) [10]

Holding: An approved jurisdictional determination is final agency action reviewable under the APA; in reaching that result the Court treated the 1989 Army-EPA MOA as making final determinations binding on the Government.

Why it matters for a pond: The same MOA governs who makes 404(f) exemption determinations, including farm-pond exemption determinations; Hawkes is the Supreme Court decision located in this research that construes it.

Later history: None relevant.

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Under a longstanding memorandum of agreement between the Corps and EPA, it will also be "binding on the Government and represent the Government's position in any subsequent Federal action or litigation ... Memorandum of Agreement §§ IV–C–2, VI–A. ... The Corps asserts that the memorandum of agreement addresses only "special case" JDs, rather than "mine-run" ones "of the sort at issue here." Reply Brief 12, n. 3. But the memorandum plainly makes binding "[a]ll final determinations," whether in "[s]pecial" or "[n]on-special" cases.

United States Army Corps of Engineers v. Hawkes Co., Inc.

Supreme Court of the United States · May 31, 2016 · 578 U.S. 590 (2016) [10]

Holding: Concurring opinions note the Government's position that the MOA is revocable and non-binding.

Why it matters for a pond: Context for the MOA's status: the agencies still post it, but the Government told the Court it can be revoked or amended.

Later history: None relevant.

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It has stated that the memorandum of agreement between the EPA and the Army Corps of Engineers, which today's opinion relies on, does not have binding effect and can be revoked or amended at the EPA's unfettered discretion. ... and the United States does not share the Court's reading of it.

United States Army Corps of Engineers v. Hawkes Co., Inc.

Supreme Court of the United States · May 31, 2016 · 578 U.S. 590; 136 S. Ct. 1807 (2016) [79]

Holding: An approved JD is final agency action reviewable in court under the APA; landowners need not await enforcement or complete the permit process to challenge it.

Why it matters for a pond: A landowner who receives an approved JD finding waters of the United States on a planned pond site can seek judicial review (after any administrative appeal).

Later history: None shown in the source. Disposition: the judgment of the Court of Appeals for the Eighth Circuit was affirmed.

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Unlike preliminary JDs, approved JDs can be administratively appealed and are defined by regulation to "constitute a Corps final agency action." §§ 320.1(a)(6), 331.2. They are binding for five years on both the Corps and the Environmental Protection Agency ... The Corps contends that the revised JD is not "final agency action" and that, even if it were, there are adequate alternatives for challenging it in court. We disagree at both turns.

Loper Bright Enterprises v. Raimondo (with Relentless, Inc. v. Department of Commerce)

Supreme Court of the United States · June 28, 2024 · 603 U.S. 369 (2024), No. 22-451 (slip opinion) [14]

Holding: Chevron is overruled. Courts must exercise independent judgment in deciding whether an agency has acted within its statutory authority and may not defer to an agency interpretation of the law simply because a statute is ambiguous; prior holdings that specific agency actions were lawful remain subject to statutory stare decisis.

Why it matters for a pond: Courts reviewing Corps/EPA readings of the CWA (e.g., the scope of the section 404(f) farm/stock pond and maintenance exemptions, or the WOTUS definition) now decide the best reading of the statute themselves rather than deferring to the agency. Earlier cases that upheld specific agency actions are not automatically overturned.

Later history: D.C. and First Circuit judgments vacated and remanded. Agencies now cite Loper Bright when revising CWA rules (e.g., EPA's January 2026 proposed section 401 rule).

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Chevron is overruled. Courts must exercise their inde- pendent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute dele- gates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and un- der the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

Loper Bright Enterprises v. Raimondo (with Relentless, Inc. v. Department of Commerce)

Supreme Court of the United States · June 28, 2024 · 603 U.S. 369 (2024), No. 22-451 (slip opinion) [14]

Holding: Chevron is overruled. Courts must exercise independent judgment in deciding whether an agency has acted within its statutory authority and may not defer to an agency interpretation of the law simply because a statute is ambiguous; prior holdings that specific agency actions were lawful remain subject to statutory stare decisis.

Why it matters for a pond: Courts reviewing Corps/EPA readings of the CWA (e.g., the scope of the section 404(f) farm/stock pond and maintenance exemptions, or the WOTUS definition) now decide the best reading of the statute themselves rather than deferring to the agency. Earlier cases that upheld specific agency actions are not automatically overturned.

Later history: D.C. and First Circuit judgments vacated and remanded. Agencies now cite Loper Bright when revising CWA rules (e.g., EPA's January 2026 proposed section 401 rule).

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By doing so, however, we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—in- cluding the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology. ... Mere reliance on Chevron cannot constitute a “ ‘special justification’ ” for overruling such a holding

Sackett v. Environmental Protection Agency (Sackett I)

Supreme Court of the United States · March 21, 2012 · 566 U.S. 120 (2012), No. 10-1062 [8]

Holding: An EPA administrative compliance order under CWA section 309 is final agency action for which there is no adequate remedy other than APA review, and the Clean Water Act does not preclude that review; landowners may sue under the APA to challenge the order.

Why it matters for a pond: A landowner or contractor who receives an EPA compliance order after building a pond (e.g., ordering removal of fill and restoration) can challenge it in court without waiting for EPA to sue.

Later history: Reversed and remanded to the Ninth Circuit (622 F.3d 1139). On remand the litigation continued and returned to the Supreme Court as Sackett v. EPA, No. 21-454 (2023).

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The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. ... Scalia, J., delivered the opinion for a unanimous Court. ... We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review.

Sackett v. Environmental Protection Agency (Sackett I)

Supreme Court of the United States · March 21, 2012 · 566 U.S. 120 (2012), No. 10-1062 [8]

Holding: An EPA compliance order under CWA section 309(a) is final agency action reviewable under the APA; the CWA does not preclude pre-enforcement review.

Why it matters for a pond: Under this holding an EPA section 309(a) compliance order, such as the Region 8 order to remove the Johnson dam (which itself cited APA review), is final agency action reviewable in court under the APA before EPA brings an enforcement suit.

Later history: Judgment of the Ninth Circuit reversed and case remanded (566 U.S. at 131). The same Sacketts' dispute returned to the Supreme Court as Sackett v. EPA, No. 21-454 (decided May 25, 2023; slip opinion at supremecourt.gov/opinions/22pdf/21-454_4g15.pdf), which cites 566 U.S. 120 - see the fed-caselaw topic.

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The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. ... Scalia, J., delivered the opinion for a unanimous Court. ... We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review.

United States v. Akers

U.S. Court of Appeals for the Ninth Circuit · March 26, 1986 · 785 F.2d 814 (9th Cir. 1986), No. 85-1750 [4]

Holding: On appeal from a preliminary injunction, the Ninth Circuit affirmed the injunction. It held the section 404(f)(1) exemptions are construed narrowly and a person claiming one must show the activity both satisfies 404(f)(1) and avoids the 404(f)(2) recapture provision; it upheld as not clearly erroneous the district court's rejection of the claim that a three-mile dike was an exempt irrigation facility, agreed that upland farming in wetlands not regularly used for upland crops was a new operation rather than "normal farming," and found the activities recaptured because of their likely drying effect. It said it did not endorse the government's position that switching from one wetland crop to another would require a permit.

Why it matters for a pond: Leading early circuit case on the burden of proof and narrow reading of 404(f), including the (f)(1)(C) clause that also covers farm and stock ponds and irrigation ditches. Structures such as dikes that drain or keep water off wetlands are not covered by the irrigation-ditch exemption.

Later history: Cert. denied, 479 U.S. 828 (1986), as cited in United States v. Brace, 41 F.3d 117, 124 (3d Cir. 1994) (verified in the cached Brace text).

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(C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches; ... The Fifth and Seventh Circuits have construed the § 1344(f)(1) exemptions narrowly. ... To be exempt from the permit requirements, one must demonstrate that proposed activities both satisfy the requirements of § (f)(1) and avoid the exception to the exemptions (referred to as the “recapture” provision) of § (f)(2). ... Akers must establish that his activities are exempt.

United States v. Akers

U.S. Court of Appeals for the Ninth Circuit · March 26, 1986 · 785 F.2d 814 (9th Cir. 1986), No. 85-1750 [4]

Holding: On appeal from a preliminary injunction, the Ninth Circuit affirmed the injunction. It held the section 404(f)(1) exemptions are construed narrowly and a person claiming one must show the activity both satisfies 404(f)(1) and avoids the 404(f)(2) recapture provision; it upheld as not clearly erroneous the district court's rejection of the claim that a three-mile dike was an exempt irrigation facility, agreed that upland farming in wetlands not regularly used for upland crops was a new operation rather than "normal farming," and found the activities recaptured because of their likely drying effect. It said it did not endorse the government's position that switching from one wetland crop to another would require a permit.

Why it matters for a pond: Leading early circuit case on the burden of proof and narrow reading of 404(f), including the (f)(1)(C) clause that also covers farm and stock ponds and irrigation ditches. Structures such as dikes that drain or keep water off wetlands are not covered by the irrigation-ditch exemption.

Later history: Cert. denied, 479 U.S. 828 (1986), as cited in United States v. Brace, 41 F.3d 117, 124 (3d Cir. 1994) (verified in the cached Brace text).

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We do not believe that Congress intended to place the burden of Corps permit regulation on farmers who desire merely to change from one wetland crop to another. ... It is irrelevant how he characterizes the dike. Provided the structure has the effect of keeping water from the southern wetlands, its construction requires a permit. ... The court concluded that the dike was not one of the types of structures specified in the regulation and was not subsidiary to an irrigation ditch.

United States v. Brace (Robert Brace; Robert Brace Farms, Inc.)

U.S. Court of Appeals for the Third Circuit · November 22, 1994 · 41 F.3d 117 (3d Cir. 1994), No. 94-3076 [5]

Holding: Reversing the district court (W.D. Pa.), the discharges on a 30-acre wetland site in Erie County, Pennsylvania were not exempt as normal farming or maintenance of drainage ditches; the exemptions are narrow, the normal-farming exemption is available only to an established farming operation on the site itself, and the landowner bears the burden of proving both an exemption and avoidance of recapture. The case was remanded for entry of judgment for the United States and assessment of penalties.

Why it matters for a pond: Pennsylvania farm case showing that the 404(f)(1)(C) "maintenance (but not construction)" limit is applied strictly and that draining or converting a wetland triggers recapture.

Later history: Before the 1990 enforcement action was fully resolved, Brace and the United States entered into a consent decree in 1996 that permanently enjoined discharges into the approximately 30-acre wetlands site and incorporated a wetlands restoration plan; the Third Circuit affirmed enforcement of that decree in United States v. Brace, No. 21-2966 (3d Cir. Jan. 6, 2023) (not precedential). A separate suit over the neighboring Marsh parcel was decided in United States v. Brace, No. 20-1892 (3d Cir. June 11, 2021).

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Read together, the two parts of Section 404(f) provide a narrow exemption for agricultural activities that have little or no adverse effect on the waters of the United States. ... Thus, we read the regulations to provide that an exemption is available only to activities that are part of an “established farming operation” at the site. ... Under the regulations, a farming operation is not “ongoing” where “modifications to the hydrological regime are necessary to resume operations.” ... Here, Brace admitted that “modifications to the hydrological regime,” i.e., drainage of the site through excavating and burying four miles of plastic tubing for drainage, were necessary to grow crops on the site.

United States v. Brace (Robert Brace; Robert Brace Farms, Inc.)

U.S. Court of Appeals for the Third Circuit · November 22, 1994 · 41 F.3d 117 (3d Cir. 1994), No. 94-3076 [5]

Holding: Reversing the district court (W.D. Pa.), the discharges on a 30-acre wetland site in Erie County, Pennsylvania were not exempt as normal farming or maintenance of drainage ditches; the exemptions are narrow, the normal-farming exemption is available only to an established farming operation on the site itself, and the landowner bears the burden of proving both an exemption and avoidance of recapture. The case was remanded for entry of judgment for the United States and assessment of penalties.

Why it matters for a pond: Pennsylvania farm case showing that the 404(f)(1)(C) "maintenance (but not construction)" limit is applied strictly and that draining or converting a wetland triggers recapture.

Later history: Before the 1990 enforcement action was fully resolved, Brace and the United States entered into a consent decree in 1996 that permanently enjoined discharges into the approximately 30-acre wetlands site and incorporated a wetlands restoration plan; the Third Circuit affirmed enforcement of that decree in United States v. Brace, No. 21-2966 (3d Cir. Jan. 6, 2023) (not precedential). A separate suit over the neighboring Marsh parcel was decided in United States v. Brace, No. 20-1892 (3d Cir. June 11, 2021).

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The exemption from the permit requirements under Section 404(f)(1)(C) for “maintenance of drainage ditches” applies to “any discharge of dredged or fill material that may result from ... the maintenance (but not construction) of drainage ditches.” ... It is not realistic to describe what Brace was doing as “continuing maintenance.” ... Brace’s subsequent le-velling at the site and spreading of the dredged material were separate, independent activities that are not subject to an exemption from the permit requirement.

United States v. Brace (Robert Brace; Robert Brace Farms, Inc.)

U.S. Court of Appeals for the Third Circuit · November 22, 1994 · 41 F.3d 117 (3d Cir. 1994), No. 94-3076 [5]

Holding: Reversing the district court (W.D. Pa.), the discharges on a 30-acre wetland site in Erie County, Pennsylvania were not exempt as normal farming or maintenance of drainage ditches; the exemptions are narrow, the normal-farming exemption is available only to an established farming operation on the site itself, and the landowner bears the burden of proving both an exemption and avoidance of recapture. The case was remanded for entry of judgment for the United States and assessment of penalties.

Why it matters for a pond: Pennsylvania farm case showing that the 404(f)(1)(C) "maintenance (but not construction)" limit is applied strictly and that draining or converting a wetland triggers recapture.

Later history: Before the 1990 enforcement action was fully resolved, Brace and the United States entered into a consent decree in 1996 that permanently enjoined discharges into the approximately 30-acre wetlands site and incorporated a wetlands restoration plan; the Third Circuit affirmed enforcement of that decree in United States v. Brace, No. 21-2966 (3d Cir. Jan. 6, 2023) (not precedential). A separate suit over the neighboring Marsh parcel was decided in United States v. Brace, No. 20-1892 (3d Cir. June 11, 2021).

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The court’s articulation of the legal standard implies that the burden of demonstrating “recapture” is on the United States. This legal standard is erroneous. ... we need not reach the application of the recapture provision. We note, however, that the district court’s conclusion that the recapture provision ... is incorrect as a matter of law. ... Thus, Brace’s activities fall squarely within the statutory definition of “recapture.” ... This matter will be remanded to the district court to enter judgment in favor of the United States and to assess upon further proceedings appropriate penalties

United States v. Brace (Marsh Site)

U.S. Court of Appeals for the Third Circuit · June 11, 2021 · No. 20-1892 (3d Cir. June 11, 2021) (precedential), appeal from W.D. Pa. No. 1:17-cv-00006 [16]

Holding: District court did not abuse its discretion in striking the defendants' summary-judgment brief as a sanction; the order requiring a deed restriction and restoration plan (an appealable injunction) and the summary judgment on liability were affirmed on interlocutory appeal.

Why it matters for a pond: Pre-Sackett Pennsylvania enforcement against a repeat farm wetland drainer: restoration of wetlands ordered; shows the government follows up on repeat violations years later.

Later history: Not verified beyond this opinion. A separate non-precedential Third Circuit opinion, United States v. Brace, No. 21-2966 (filed Jan. 6, 2023), affirmed enforcement of the 1996 consent decree covering the original 30-acre site.

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Because that severe sanction was not an abuse of discretion, we will affirm. ... Brace had dug up dirt, rocks, and the like in the wetlands and redeposited them without a permit. That, we held, violated the Act. ... In 2012, Brace expanded his farm, buying a neighboring parcel from the Marsh family. The Marsh Site adjoins Elk Creek, a tributary of Lake Erie, and in- cludes about fourteen acres of wetlands. ... Brace did not have a permit for any of that. ... Brace must restore the wetlands that he tore up.

Borden Ranch Partnership v. U.S. Army Corps of Engineers

U.S. Court of Appeals for the Ninth Circuit · August 15, 2001 · 261 F.3d 810 (9th Cir. 2001), No. 00-15700 [17]

Holding: The Ninth Circuit held that deep ripping of protected wetland swales to convert ranch land to vineyards and orchards was a discharge of a pollutant and was governed by the 404(f)(2) recapture provision, so the normal-farming (plowing) exemption did not apply; it upheld counting each pass of the ripper through a protected wetland as a separate violation; it reversed the findings as to one isolated vernal pool in light of SWANCC (the government withdrew that claim) and remanded for recalculation of civil penalties.

Why it matters for a pond: Shows how the recapture provision works: converting land to a new use plus impairing the flow of nearby waters removes a 404(f) exemption. The same two-part test applies to a farm or stock pond built under 404(f)(1)(C).

Later history: Affirmed by an equally divided Supreme Court, 537 U.S. 99 (2002) (per curiam; Justice Kennedy not participating), which sets no nationwide precedent.

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even normal plowing can be regulated under the Clean Water Act if it falls under this so-called "recapture" provision. ... We conclude that the deep ripping at issue in this case is governed by the recapture provision. Converting ranch land to orchards and vineyards is clearly bringing the land"into a use to which it was not previously subject," and there is a clear basis in this record to conclude that the destruction of the soil layer at issue here constitutes an impairment of the flow of nearby navigable waters. ... they radically altered the hydrological regime of the protected wetlands.

Borden Ranch Partnership v. U.S. Army Corps of Engineers

Supreme Court of the United States · December 16, 2002 · 537 U.S. 99 (2002) (per curiam), No. 01-1243 [18]

Holding: The Ninth Circuit judgment (261 F.3d 810) was affirmed by an equally divided Court; Justice Kennedy took no part.

Why it matters for a pond: Leaves the Ninth Circuit Borden Ranch decision (recapture of deep ripping; each pass a separate violation) in place; the Supreme Court issued no opinion on the merits.

Later history: None shown in the source.

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No. 01–1243. Argued December 10, 2002—Decided December 16, 2002 261 F. 3d 810, affirmed by an equally divided Court. ... The judgment is affirmed by an equally divided Court. Justice Kennedy took no part in the consideration or decision of this case.

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [19]

Holding: A drawdown of a hatchery supply pond through a dam that flushed sediment into the Fawn River was an addition of dredged spoil subject to section 404; the 404(f)(1)(B) maintenance exemption (dams, dikes, etc.) covers only dredging reasonably necessary to the maintenance, the party claiming it bears the burden on both the exemption and recapture, and fact issues on pretext and recapture precluded summary judgment for the defendants.

Why it matters for a pond: Directly relevant to pond owners: draining a pond through its dam or outlet so that accumulated sediment flows downstream can be a regulated discharge, and the dam-maintenance exemption will not cover more drawdown or sediment release than the repair reasonably requires.

Later history: CWA claim reversed and remanded; takings and due process rulings affirmed. Later proceedings not verified.

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After employees of the Indiana Department of Natural Resources ("DNR") drained a supply pond into the Fawn River ... namely the materials emptied from the supply pond, into the Fawn River from a point source, the Orland Dam. ... The defendants' actions of May 18, 1998, therefore, constituted an addition of dredged spoil into the Fawn River and were subject to the permit requirement of § 404. ... The defendants bear the burden of establishing both that they qualify for one of the exemptions of § 1344(f)(1) and that their actions are not recaptured by § 1344(f)(2).

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [6]

Holding: Discharge of accumulated pond sediment through a dam into a contiguous river is an addition of dredged spoil from a point source requiring a section 404 permit unless the discharger proves a 404(f)(1) exemption and that recapture under 404(f)(2) does not apply; the maintenance exemption covers only dredging reasonably necessary to the proposed maintenance.

Why it matters for a pond: Directly addresses draining/drawing down an existing on-stream pond: flushing bottom sediment downstream during a drawdown can be a regulated section 404 discharge.

Later history: On remand the district court (N.D. Ind.) granted summary judgment to the plaintiffs on June 28, 2005 after the defendants conceded their actions were not reasonably necessary to make the dam repairs (as recounted in Greenfield Mills, Inc. v. Carter, 614 F. Supp. 2d 934 (N.D. Ind. Nov. 9, 2007)); see separate claim.

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After employees of the Indiana Department of Natural Resources (“DNR”) drained a supply pond into the Fawn River ... the river has been dammed to form a 1.75 acre supply pond. ... hold that the dis-charge of dredged material, such as that removed from the supply pond, into a contiguous body of water or wetland, here the Fawn River, constitutes an “addition” of dredged ... spoil under the statute. The defendants’ actions of May 18, 1998, therefore, con-stituted an addition of dredged spoil into the Fawn River and were subject to the permit requirement of § 404.

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [19]

Holding: A drawdown of a hatchery supply pond through a dam that flushed sediment into the Fawn River was an addition of dredged spoil subject to section 404; the 404(f)(1)(B) maintenance exemption (dams, dikes, etc.) covers only dredging reasonably necessary to the maintenance, the party claiming it bears the burden on both the exemption and recapture, and fact issues on pretext and recapture precluded summary judgment for the defendants.

Why it matters for a pond: Directly relevant to pond owners: draining a pond through its dam or outlet so that accumulated sediment flows downstream can be a regulated discharge, and the dam-maintenance exemption will not cover more drawdown or sediment release than the repair reasonably requires.

Later history: CWA claim reversed and remanded; takings and due process rulings affirmed. Later proceedings not verified.

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for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees ... [m]aintenance does not include any modification that changes the character, scope, or size of the original fill design. ... only dredging that is reasonably necessary to the proposed maintenance is exempt from the permit requirement. ... a genuine issue of material fact as to pretext and as to the reasonable necessity of the dredging to the alleged maintenance.

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [6]

Holding: Maintenance exemption limited to dredging reasonably necessary (proportional) to the maintenance; discharger bears burden on exemption and non-recapture.

Why it matters for a pond: A pond owner relying on the 404(f) maintenance exemption for a drawdown must be able to show the sediment release was reasonably necessary to the maintenance.

Later history: On remand the district court (N.D. Ind.) granted summary judgment to the plaintiffs on June 28, 2005 after the defendants conceded their actions were not reasonably necessary to make the dam repairs (as recounted in Greenfield Mills, Inc. v. Carter, 614 F. Supp. 2d 934 (N.D. Ind. Nov. 9, 2007)); see separate claim.

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The defendants bear the burden of establishing both that they qualify for one of the exemptions of § 1344(f)(1) and that ... their actions are not recaptured by § 1344(f)(2). ... the maintenance exemption should be construed so that only dredging that is reasonably necessary to the proposed maintenance is exempt from the permit requirement. ... we cannot say that the dredging of the pond—particularly from 11:00 a.m. to 3:00 p.m.—was, as a matter of law, reasonably necessary to the proposed maintenance.

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [6]

Holding: "Original fill design" means the man-made structure; recapture requires both new-use purpose and flow/reach effects.

Why it matters for a pond: Clarifies how the maintenance exemption and recapture test are applied to a pond drawdown.

Later history: On remand the district court (N.D. Ind.) granted summary judgment to the plaintiffs on June 28, 2005 after the defendants conceded their actions were not reasonably necessary to make the dam repairs (as recounted in Greenfield Mills, Inc. v. Carter, 614 F. Supp. 2d 934 (N.D. Ind. Nov. 9, 2007)); see separate claim.

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The only “structure” involved in the proposed maintenance is the dam; neither the supply pond nor the Fawn River is a man-made “structure” similar to those listed in the statute. ... These two requirements are not set forth in the alternative but in the conjunctive; consequently, the recapture provision is applicable only when both of these conditions are present.

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [6]

Holding: Section 404, not 402, is the permitting process for the discharge of dredged material at issue; in footnote 16 the court stated it believed the dam used to release the sediment is a "point source".

Why it matters for a pond: Identifies which federal permit program (Corps section 404) governs sediment flushed from a pond through a dam or outlet.

Later history: On remand the district court (N.D. Ind.) granted summary judgment to the plaintiffs on June 28, 2005 after the defendants conceded their actions were not reasonably necessary to make the dam repairs (as recounted in Greenfield Mills, Inc. v. Carter, 614 F. Supp. 2d 934 (N.D. Ind. Nov. 9, 2007)); see separate claim.

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§ 404 is the only permitting process applicable here. Consequently, we affirm that portion of the district court’s judgment holding that the defendants were not required to obtain a § 402 permit ... Here, the artificial mechanism of the dam was used to convey pollutants into the Fawn River, a navigable waterway. Consequently, we believe that the dam constitutes a “point source.”

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [6]

Holding: A dam used to convey pollutants into a river is a point source.

Why it matters for a pond: A pond outlet or dam used to release material downstream can be a point source.

Later history: Disposition of this appeal: affirmed in part, reversed and remanded in part (CWA claim remanded; takings and due process rulings affirmed). Later proceedings were not reviewed for this topic (see fed-gap2-sealing-drawdown).

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Here, the artificial mechanism of the dam was used to convey pollutants into the Fawn River, a navigable waterway. Consequently, we believe that the dam constitutes a “point source.”

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [6]

Holding: Section 404, not section 402, governs releases of dredged material through a dam; 402 liability is strict.

Why it matters for a pond: Tells a pond owner which federal permit program applies to sediment (as opposed to water) released during a drawdown.

Later history: Disposition of this appeal: affirmed in part, reversed and remanded in part (CWA claim remanded; takings and due process rulings affirmed). Later proceedings were not reviewed for this topic (see fed-gap2-sealing-drawdown).

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If a defendant falls within an exception to the permitting requirements of § 404 under § 1344(f)(1) ... then the defendant is not liable under § 1311 for having “discharged a pollutant” or subject to the § 1342 (§ 402) permit-ting requirements. ... § 404 is the only permitting process applicable here. Consequently, we affirm that portion of the district court’s judgment holding that the defendants were not required to obtain a § 402 permit ... Liability for discharging a pollutant without a § 402 permit and absent an exemption is strict; a de-fendant’s intent or purpose is irrelevant.

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [6]

Holding: Limited Gorsuch/Consumers Power to their facts for dredged material.

Why it matters for a pond: Explains how the dam-release cases were narrowed for sediment.

Later history: Disposition of this appeal: affirmed in part, reversed and remanded in part (CWA claim remanded; takings and due process rulings affirmed). Later proceedings were not reviewed for this topic (see fed-gap2-sealing-drawdown).

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In support of their position, they point to National Wildlife Federation v. Gorsuch, 693 F.2d 156, 174-75 (D.C. Cir. 1982), and National Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 584 (6th Cir. 1988), which hold that the discharge of pollutants from one body of water to a contiguous one is not an “addition” because it does not add a pollutant from the outside world. More recent cases, however, have undercut severely the holdings of Gorsuch and Consumers Power. ... limiting the holdings of Gorsuch and Consumers Power to the very circumscribed facts

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [6]

Holding: Releasing accumulated pond sediment through a dam into a contiguous river is an 'addition' of dredged spoil requiring a section 404 permit unless exempt.

Why it matters for a pond: Draws the line between water releases (dams cases) and sediment releases (404).

Later history: Disposition of this appeal: affirmed in part, reversed and remanded in part (CWA claim remanded; takings and due process rulings affirmed). Later proceedings were not reviewed for this topic (see fed-gap2-sealing-drawdown).

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and hold that the dis-charge of dredged material, such as that removed from the supply pond, into a contiguous body of water or wetland, here the Fawn River, constitutes an “addition” of dredged ... spoil under the statute. ... The amici note that the situation in National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), and National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988), concerned normal dam operations that resulted in changes to water quality. Here, by contrast, the sediment had settled out of the navigable waters

Greenfield Mills, Inc. v. Macklin

U.S. Court of Appeals for the Seventh Circuit · March 19, 2004 · 361 F.3d 934 (7th Cir. 2004), No. 02-1863 [6]

Holding: Reversed and remanded on the CWA claim (affirmed on takings and due process claims).

Why it matters for a pond: Illustrates the scale of downstream harm and liability that can follow an uncontrolled pond drawdown.

Later history: On remand the district court (N.D. Ind.) granted summary judgment to the plaintiffs on June 28, 2005 after the defendants conceded their actions were not reasonably necessary to make the dam repairs (as recounted in Greenfield Mills, Inc. v. Carter, 614 F. Supp. 2d 934 (N.D. Ind. Nov. 9, 2007)); see separate claim.

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the river bottom of the Fawn River had been elevated by 100,000 cubic yards of unconsolidated sediment that had been deposited in the river, thus altering the flow of the river. ... the judgment of the district court with respect to the CWA claim is reversed, and that claim is remanded for further proceedings

Greenfield Mills, Inc. v. Carter

U.S. District Court for the Northern District of Indiana, Fort Wayne Division · November 9, 2007 · 614 F. Supp. 2d 934 (N.D. Ind. 2007), Cause No. 1:00 CV 0219 [47]

Holding: Recounts that on remand the court (June 28, 2005) granted summary judgment for plaintiffs because the drawdown was conceded not reasonably necessary to the dam repairs; the Nov. 2007 order addressed moving to Phase II of a court-appointed expert remediation plan.

Why it matters for a pond: Shows the practical result on remand: a drawdown not reasonably necessary to dam maintenance lost the 404(f) exemption and led to liability for river damage.

Later history: Not researched beyond this order.

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On June 28, 2005, the undersigned granted summary judgment in favor of the plaintiffs after the defendants conceded that their actions of May 18, 1998 were not reasonably necessary to make the repairs to the dam, which, in turn, disqualified the defendants’ actions from meeting the maintenance exemption. See Docket # 208. Accordingly, the undersigned concluded that the defendants were liable to the plaintiffs for any damage to the Fawn River occasioned by the May 18, 1998 event.

Craig v. United States Army Corps of Engineers (Lesslie, defendant-intervenor)

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Under APA review, the Corps' and EPA's determination that a 1.8-acre irrigation pond dammed on a creek qualified for the 404(f)(1)(C) farm-pond exemption and was not recaptured under 404(f)(2) was not arbitrary or capricious; defendants' summary judgment motions granted.

Why it matters for a pond: The only court record found that describes the Charleston District's farm-pond exemption paperwork, conditions and timing practice.

Later history: Not verified; no appellate decision was located in this research.

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Lesslie provided the Corps with a completed Agricultural Irrigation Pond Exemption Information Form, responses to questions included in the Charleston District's guidance, topographical maps, aerial photographs identifying the location of the planned farm pond, and a water budget prepared by a certified professional engineer. ... In June of 2012, the Corps informed Lesslie via letter that his construction of the proposed pond would be exempt under Section 404 (Farm Pond Exemption), provided he met six (6) specific conditions outlined in detail in the letter.

Craig v. United States Army Corps of Engineers (Lesslie, defendant)

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Under APA review, the Corps' and EPA's determination that the landowner's stream impoundment qualified for the 404(f)(1)(C) farm pond exemption, and was not recaptured under 404(f)(2), was not arbitrary or capricious; defendants' summary judgment motions granted.

Why it matters for a pond: Shows the conditions one Corps district attached to a farm pond exemption for a dam on a stream, and how recapture was analyzed.

Later history: Not verified; no appellate decision was located in this research.

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The six specific conditions set out by the Corps were: (1) the pond does not exceed the size required to facilitate normal farming/ranching operation; (2) it is specifically constructed for irrigation or livestock watering; (3) wetland impacts are minimized; (4) no toxic pollutants or hazardous waste will be discharged in the construction of the pond;

Craig v. United States Army Corps of Engineers (Lesslie, defendant)

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Under APA review, the Corps' and EPA's determination that the landowner's stream impoundment qualified for the 404(f)(1)(C) farm pond exemption, and was not recaptured under 404(f)(2), was not arbitrary or capricious; defendants' summary judgment motions granted.

Why it matters for a pond: Shows the conditions one Corps district attached to a farm pond exemption for a dam on a stream, and how recapture was analyzed.

Later history: Not verified; no appellate decision was located in this research.

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(5) the construction of the farm pond will not convert extensive areas of water to dry land or impede the circulation or result in significant alterations to the flow, circulation, reach, or size of the waters of the United States; and (6) stabilization and sediment control measures will be deployed during and after pond construction.

Craig v. United States Army Corps of Engineers (Lesslie, defendant)

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Under APA review, the Corps' and EPA's determination that the landowner's stream impoundment qualified for the 404(f)(1)(C) farm pond exemption, and was not recaptured under 404(f)(2), was not arbitrary or capricious; defendants' summary judgment motions granted.

Why it matters for a pond: Shows the conditions one Corps district attached to a farm pond exemption for a dam on a stream, and how recapture was analyzed.

Later history: Not verified; no appellate decision was located in this research.

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The letter further cautioned Lesslie that any "change in use of a farm pond from irrigation or livestock watering to a non-farming related purpose will void the exemption status and a Department of the Army permit will be required." ... the Federal Defendants' determination that Lesslie was entitled to a Farm Pond Exemption was not arbitrary, capricious an abuse of discretion, or otherwise not in accordance with the law. ... the Court hereby DENIES Plaintiffs' Motion for Summary Judgment and GRANTS defendants' motions for summary judgment.

Craig v. United States Army Corps of Engineers

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Agencies' farm-pond exemption determination upheld (see above).

Why it matters for a pond: Gives a concrete time-to-use benchmark (typically no more than 18 months) used by one Corps district; the Savannah District guide instead says "within a reasonable period of time".

Later history: Not verified.

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However, to ensure that crops have the irrigation necessary to survive, the Corps allows sufficient time to plant the crops after an impoundment is built for irrigation, typically not to exceed 18 months after impoundment construction. ... The EPA and Corps were assured during their visit that all planting would be finished within 18 months from the completion of impoundment construction.

Craig v. United States Army Corps of Engineers

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Agencies' farm-pond exemption determination upheld; exemption remains conditional on continued compliance.

Why it matters for a pond: An exempt farm pond carries ongoing conditions; non-compliance can void the exemption.

Later history: Not verified.

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Lesslie's obligation to comply with the specific criteria set forth by the Federal Defendants for an exemption is. This continuing obligation to ensure that water levels in the Plaintiffs' pond are not reduced, lest Lesslie lose his exemption status, was readily ... acknowledged by Lesslie's own counsel during the hearing. All parties have recognized, as was clearly stated in the Corps' letter June of 2012, Lesslie's failure, in any way, to comply with the specific conditions articulated for the farm pond exemption would void his exemption status.

Craig v. United States Army Corps of Engineers

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Agencies' finding that the on-stream farm pond did not impair flow or circulation, and so was not recaptured, was not arbitrary or capricious.

Why it matters for a pond: A dam across a stream for a new farm use met the "new use" prong; the exemption survived only because impairment was not found.

Later history: Not verified.

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counsel for the Federal Defendants indicated after further review of the record they "concede" this argument, and agree that Lesslie's pond did in fact constitute a new use. Therefore, the Court need only analyze the second prong ... Plaintiffs aver it is clear Lesslie's pond has an impact on the circulation and flow of the previously existing creek. Lesslie's dam fills approximately 100 linear feet of the creek and his pond inundates approximately 500 linear feet of the creek.

Craig v. United States Army Corps of Engineers (Lesslie, defendant)

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Under APA review, the Corps' and EPA's determination that the landowner's stream impoundment qualified for the 404(f)(1)(C) farm pond exemption, and was not recaptured under 404(f)(2), was not arbitrary or capricious; defendants' summary judgment motions granted.

Why it matters for a pond: Shows the conditions one Corps district attached to a farm pond exemption for a dam on a stream, and how recapture was analyzed.

Later history: Not verified; no appellate decision was located in this research.

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Plaintiffs aver it is clear Lesslie’s pond has an impact on the circulation and flow of the previously existing creek. Lesslie’s dam fills approximately 100 linear feet of the creek and his pond inundates approximately 500 linear feet of the creek. ... All impoundments will interfere with flow to some extent, so the recapture provision must be applied in a reasonable way ... Ponds which result in minimal impacts ... would not be recaptured. While each case is evaluated on its specific facts, ponds of smaller size, and ponds sited to minimize impacts, are more likely to be exempt.

Craig v. United States Army Corps of Engineers

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Agencies' reliance on EPA's minimal-impact approach to recapture of farm ponds upheld under deferential APA review.

Why it matters for a pond: The only located statement of EPA's view on how recapture applies to farm-pond impoundments and on pond size.

Later history: Not verified.

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All impoundments will interfere with flow to some extent, so the recapture provision must be applied in a reasonable way ... Ponds which result in minimal impacts, as contemplated by the statute, would not be recaptured. While each case is evaluated on its specific facts, ponds of smaller size, and ponds sited to minimize impacts, are more likely to be exempt. ... analysis of whether the farm pond results in minor environmental impacts seems to comport with the guidelines provided by the EPA.

Craig v. U.S. Army Corps of Engineers (Lesslie, intervenor-defendant)

U.S. District Court for the District of South Carolina · October 29, 2014 · C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) [7]

Holding: Under APA review, the Corps' and EPA's determination that a landowner's third pond (a dam on a perennial creek, used to irrigate crops) qualified for the section 404(f)(1)(C) farm pond exemption and was not recaptured was not arbitrary or capricious; defendants' summary judgment motions granted.

Why it matters for a pond: The only decision located in this research that squarely reviews an agency grant of the farm/stock pond exemption for an embankment across a stream; it shows the size, purpose and impact facts the agencies weigh.

Later history: Not verified; no appellate decision was located.

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used the third pond for irrigation of the crops, and as such, the Federal Defendants’ determination that Lesslie was entitled to a Farm Pond Exemption was not arbitrary, capricious an abuse of discretion, or otherwise not in accordance with the law. ... Lesslie’s dam fills approximately 100 linear feet of the creek and his pond inundates approximately 500 linear feet of the creek. ... the Court hereby DENIES Plaintiffs’ Motion for Summary Judgment and GRANTS defendants’ motions for summary judgment.

Duarte Nursery, Inc. v. U.S. Army Corps of Engineers (and United States v. Duarte Nursery, Inc., counterclaim)

U.S. District Court for the Eastern District of California · June 10, 2016 · No. 2:13-cv-02095-KJM, ECF No. 195 (E.D. Cal. June 10, 2016) [20]

Holding: Granted the United States summary judgment on liability: unpermitted deep tillage that moved soil within and redeposited it into jurisdictional wetlands violated CWA 301(a); the CWA is a strict liability statute; the 404(f)(1) normal-farming exemption did not apply because farming on the land was not established and ongoing after about 24 years without farming, and the court also considered the 404(f)(2) recapture provision, stating that even under the farming exemption a discharge that impairs the flow of waters of the United States still requires a permit.

Why it matters for a pond: Shows that the section 404(f)(1) normal-farming exemption requires farming that is established and ongoing, that the 404(f)(2) recapture provision can still require a permit, and that civil CWA liability does not depend on intent (strict liability).

Later history: A consent decree dated, entered and made effective December 7, 2017 (ECF No. 342) resolves the United States' Clean Water Act claims in the counterclaim, subject to the defendants' compliance; it required a $330,000 civil penalty and $770,000 of off-site compensatory mitigation (see claim fed-gap2-enforcement-051). Appellate history not checked. The court applied the Rapanos "significant nexus" test; for the current test after Sackett v. EPA (2023) see the fed-caselaw and fed-wotus topics.

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The CWA is a strict liability statute. ... Here, there is no evidence the Property supported farming activity between 1988 ... and the summer of 2012. ... the court also considers the recapture ... incidental to the farming activities that impairs the flow of the waters of the United States still ... requires a permit ... a “significant nexus” to Coyote Creek, which is a tributary of the Sacramento River ... The tillage was not part of an established and ongoing farming ... The court also GRANTS the United States’ motion for summary ... judgment on its CWA counterclaim.

United States v. Duarte Nursery, Inc. and John Duarte (consent decree)

U.S. District Court for the Eastern District of California · December 7, 2017 · No. 2:13-cv-02095-KJM-DB, ECF No. 342 (E.D. Cal., entered Dec. 7, 2017) [21]

Holding: Court-entered settlement (no admission of the facts or of liability): $330,000 civil penalty; $770,000 off-site compensatory mitigation; 10-year injunction protecting about 44 acres of waters of the United States plus a 35-foot setback; and a permanent injunction protecting a Conservation Reserve (the parts of Coyote Creek's main stem and of "Stream 2" that defendants own or control, to the ordinary high water mark plus a 75-foot setback).

Why it matters for a pond: Illustrates the typical elements of a judicial 404 settlement - civil penalty, mitigation or restoration, deed-running injunctive restrictions - and that a later revised jurisdictional determination can be sought under then-governing law.

Later history: Decree by its terms expires ten years after the effective date if defendants are in compliance; post-entry compliance not checked.

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Filed 12/08/17 ... Defendants do not admit the facts as alleged in the Counterclaim ... This Consent Decree resolves (a) the civil claims of the United States for the ... violations of the CWA alleged in the Counterclaim, subject to Defendants' compliance with this ... Within one-hundred eighty (180) Days of the Effective Date ... Defendants shall pay a civil penalty ... ($330,000) ... No later than one (1) year from the Effective Date ... Defendants shall effect off-site compensatory mitigation by expending ... ($770,000) ... Dated, entered, and made effective this 7th day of December, 2017.

Ragsdale v. JLM Construction Services, Inc.

U.S. District Court for the Western District of Texas (U.S. Magistrate Judge Susan Hightower) · June 11, 2024 · No. 1:21-CV-01167-SH (W.D. Tex. June 11, 2024), Dkt. 78; reported at 737 F. Supp. 3d 449 (as cited in Lewis v. United States, M.D. La. 2025) [22]

Holding: A rancher's citizen suit over construction-site sediment failed: the plaintiff conceded his stock pond (stock tank), ditches, culverts and trenches are not covered waters, and the wet-weather creek on his ranch, which carried water only a few times a year after substantial rain, is not a relatively permanent water; judgment for the defendant.

Why it matters for a pond: Directly involves a ranch stock tank and the ephemeral drainage below it: after Sackett such ordinarily dry channels, and a stock pond built to catch road runoff, were treated as outside the Clean Water Act.

Later history: Judgment entered June 11, 2024. The RECAP docket (last updated July 8, 2025) lists no later filing; no appeal was located.

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Ragsdale alleged that the sediment from the stormwater has accumulated on his pastures and in a stock tank on his property. ... In response, Ragsdale concedes that the stock pond, drainage ditches, culverts, and trenches are not covered under the CWA. ... stating that the stock tank had not overflowed since 2018 ... Ragsdale testified that the stock tank was installed by his father to collect stormwater runoff from County Road 289.

Ragsdale v. JLM Construction Services, Inc.

U.S. District Court for the Western District of Texas (U.S. Magistrate Judge Susan Hightower) · June 11, 2024 · No. 1:21-CV-01167-SH (W.D. Tex. June 11, 2024), Dkt. 78; reported at 737 F. Supp. 3d 449 (as cited in Lewis v. United States, M.D. La. 2025) [22]

Holding: A rancher's citizen suit over construction-site sediment failed: the plaintiff conceded his stock pond (stock tank), ditches, culverts and trenches are not covered waters, and the wet-weather creek on his ranch, which carried water only a few times a year after substantial rain, is not a relatively permanent water; judgment for the defendant.

Why it matters for a pond: Directly involves a ranch stock tank and the ephemeral drainage below it: after Sackett such ordinarily dry channels, and a stock pond built to catch road runoff, were treated as outside the Clean Water Act.

Later history: Judgment entered June 11, 2024. The RECAP docket (last updated July 8, 2025) lists no later filing; no appeal was located.

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2. impoundments of waters defined as waters of the United States; ... "Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing"

Ragsdale v. JLM Construction Services, Inc.

U.S. District Court for the Western District of Texas (U.S. Magistrate Judge Susan Hightower) · June 11, 2024 · No. 1:21-CV-01167-SH (W.D. Tex. June 11, 2024), Dkt. 78; reported at 737 F. Supp. 3d 449 (as cited in Lewis v. United States, M.D. La. 2025) [22]

Holding: A rancher's citizen suit over construction-site sediment failed: the plaintiff conceded his stock pond (stock tank), ditches, culverts and trenches are not covered waters, and the wet-weather creek on his ranch, which carried water only a few times a year after substantial rain, is not a relatively permanent water; judgment for the defendant.

Why it matters for a pond: Directly involves a ranch stock tank and the ephemeral drainage below it: after Sackett such ordinarily dry channels, and a stock pond built to catch road runoff, were treated as outside the Clean Water Act.

Later history: Judgment entered June 11, 2024. The RECAP docket (last updated July 8, 2025) lists no later filing; no appeal was located.

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that the wet-weather creek only had water in it twice in 2021, after substantial rain. ... the wet-weather creek is not "a relatively permanent, standing or continuously flowing body of water" ... Instead, the creek is an "ordinarily dry channel[] through which water occasionally or intermittently flows" and is not waters of the United States under the Clean Water Act. ... it carried water only a few times a year after substantial rain events. ... the Court must enter judgment for JLM.

Conservation Law Foundation, Inc. v. Town of Barnstable, Massachusetts

U.S. District Court for the District of Massachusetts · June 5, 2025 · No. 1:24-cv-11886-ADB (D. Mass.), ECF No. 22 (June 5, 2025) [23]

Holding: Four isolated Cape Cod ponds are not "waters of the United States" merely because shoreline parcels are sold to out-of-state buyers or the ponds draw out-of-state tourists (following SWANCC), so counts depending on them were dismissed; claims about four other ponds alleged to have a continuous surface connection to conceded federal waters survived a motion to dismiss because aerial photos could not show whether streams pass under roads.

Why it matters for a pond: Applies the post-Sackett definition (40 C.F.R. 120.2 as amended in 2023) to ponds in a citizen suit over a town wastewater facility's nitrogen discharges: a pond is not made federal by commerce-based theories (out-of-state buyers or tourists), while a pond alleged to be linked by a stream to federal waters survived dismissal, and a road crossing does not necessarily break the connection if the stream passes beneath it.

Later history: July 31, 2025: the town's motion to amend the judgment, stay proceedings and certify an interlocutory appeal denied. Feb. 19, 2026: plaintiff allowed to add four state-law counts; as of that order, 9 of the 13 federal counts remained.

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Plaintiff alleges that saleable parcels of land include parts of the Independent Ponds, and many property sales in Cape Cod are interstate transactions. ... Although Plaintiff alleges it is migratory people, rather than birds, who may make these ponds part of their habitats, this is insufficient to render the Independent Ponds "waters of the United States" under the Supreme Court's precedent. The Court therefore GRANTS Defendant's motion to dismiss as to Counts I, II, III, and VIII each of which relies on the Independent Ponds being waters of the United States.

Conservation Law Foundation, Inc. v. Town of Barnstable, Massachusetts

U.S. District Court for the District of Massachusetts · June 5, 2025 · No. 1:24-cv-11886-ADB (D. Mass.), ECF No. 22 (June 5, 2025) [23]

Holding: Four isolated Cape Cod ponds are not "waters of the United States" merely because shoreline parcels are sold to out-of-state buyers or the ponds draw out-of-state tourists (following SWANCC), so counts depending on them were dismissed; claims about four other ponds alleged to have a continuous surface connection to conceded federal waters survived a motion to dismiss because aerial photos could not show whether streams pass under roads.

Why it matters for a pond: Applies Sackett directly to ponds: an isolated pond is not made federal by commerce-based theories, while a pond linked by a stream to federal waters may be, and a road crossing does not necessarily break the connection if the stream passes beneath it.

Later history: July 31, 2025: the town's motion to certify an interlocutory appeal denied. Feb. 19, 2026: plaintiff allowed to add state-law counts; nine federal counts remain in the case.

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But even if the Court were to consider these images, it would be unable to conclude that, as a matter of law, the waters at issue do not share a continuous surface connection with the conceded waters of the United States. ... For example, the streams may run under the road, which would not be visible from an aerial photograph. ... In that case the plaintiff alleged that the wetland connected to the relevant water of the United States via "surface runoff and groundwater," which plainly cannot form a continuous surface connection.

United States v. Sharfi (Benjamin K. Sharfi, as trustee of the Benjamin Sharfi 2002 Trust; NeshaFarm, Inc.)

U.S. District Court for the Southern District of Florida · December 30, 2024 · No. 2:21-cv-14205-KAM (S.D. Fla.), DE 184 (R&R, Sept. 21, 2024), DE 192 (Order, Dec. 30, 2024), DE 193 (Judgment, Dec. 30, 2024) [24]

Holding: The man-made ditches near the site are not relatively permanent waters; even if they were, the site wetlands lack a continuous surface connection, which means a surface-water connection; summary judgment for the landowners.

Why it matters for a pond: A government Clean Water Act enforcement case over site work that included excavating ponds, lost after Sackett because the nearby man-made drainage ditches carried at most seasonal (intermittent or ephemeral) flow and there was no surface-water link to the wetlands.

Later history: Judgment for defendants entered Dec. 30, 2024 and case closed. The RECAP docket (last updated Apr. 8, 2025) shows no later filing; no Eleventh Circuit appeal was located (see not_confirmed).

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On April 30, 2018, the Corps issued a cease-and-desist letter ... On November 28, 2018, the Corps sent Mr. Sharfi an email stating that the Corps had "reason to believe you have continued work in jurisdictional wetlands without the benefit of a permit" ... Defendants thereafter built interior dirt roads within the Site, graded areas to plant vegetation, cleared additional vegetation, placed sod, deposited sand ... created dirt piles, constructed buildings, and excavated ponds. ... mechanical equipment such as bulldozers and box blades

United States v. Sharfi (Benjamin K. Sharfi, as trustee of the Benjamin Sharfi 2002 Trust; NeshaFarm, Inc.)

U.S. District Court for the Southern District of Florida · December 30, 2024 · No. 2:21-cv-14205-KAM (S.D. Fla.), DE 184 (R&R, Sept. 21, 2024), DE 192 (Order, Dec. 30, 2024), DE 193 (Judgment, Dec. 30, 2024) [24]

Holding: The man-made ditches near the site are not relatively permanent waters; even if they were, the site wetlands lack a continuous surface connection, which means a surface-water connection; summary judgment for the landowners.

Why it matters for a pond: A government Clean Water Act enforcement case over farm-site work that included excavating ponds, lost after Sackett because the nearby drainage ditches carried only seasonal flow and there was no surface-water link to the wetlands.

Later history: Judgment for defendants entered Dec. 30, 2024 and case closed. The RECAP docket (last updated Apr. 8, 2025) shows no later filing; no Eleventh Circuit appeal was located (see not_confirmed).

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Initially, I note that this footnote regarding seasonality, by its own terms, applies to rivers and not ditches. ... Here, the undisputed material evidence establishes that the area of ditches in this case closest to Defendants' Site are, at most, "intermittent" or "ephemeral" ditches or channels with seasonal flow. This does not meet the Sackett standard of "relatively permanent, standing or continuously flowing body of water" to qualify as WOTUS.

United States v. Sharfi (Benjamin K. Sharfi; NeshaFarm, Inc.)

U.S. District Court for the Southern District of Florida · December 30, 2024 · No. 2:21-cv-14205-KAM (S.D. Fla.), DE 184 (R&R, Sept. 21, 2024), DE 192 (Order, Dec. 30, 2024) [24]

Holding: Seasonal-flow drainage ditches are not relatively permanent waters; the site's wetlands lacked a continuous surface (water) connection; summary judgment for defendants.

Why it matters for a pond: Shows how Sackett is being applied in enforcement: seasonally flowing ditches and wetlands without a surface-water link were held non-federal.

Later history: R&R affirmed and adopted Dec. 30, 2024 (DE 192); judgment for defendants entered and case closed Dec. 30, 2024 (DE 193). A CourtListener RECAP copy of the district docket (retrieved 2026-09-28; may be incomplete) shows no later entries; any Eleventh Circuit appeal was not verified.

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the undisputed material evidence establishes that the area of ditches in this case closest to Defendants’ Site are, at most, “intermittent” or “ephemeral” ditches or channels with seasonal flow. This does not meet the Sackett standard of “relatively permanent, standing or continuously flowing body of water” to qualify as WOTUS. ... the evidence shows (1) no adjacent body of water constituting WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters), and (2) no continuous surface connection with any wetlands located on Defendants’ Site.

United States v. Sharfi (Benjamin K. Sharfi, as trustee of the Benjamin Sharfi 2002 Trust; NeshaFarm, Inc.)

U.S. District Court for the Southern District of Florida · December 30, 2024 · No. 2:21-cv-14205-KAM (S.D. Fla.), DE 184 (R&R, Sept. 21, 2024), DE 192 (Order, Dec. 30, 2024), DE 193 (Judgment, Dec. 30, 2024) [25]

Holding: The man-made ditches near the site are not relatively permanent waters; even if they were, the site wetlands lack a continuous surface connection, which means a surface-water connection; summary judgment for the landowners.

Why it matters for a pond: A government Clean Water Act enforcement case over farm-site work that included excavating ponds, lost after Sackett because the nearby drainage ditches carried only seasonal flow and there was no surface-water link to the wetlands.

Later history: Judgment for defendants entered Dec. 30, 2024 and case closed. The RECAP docket (last updated Apr. 8, 2025) shows no later filing; no Eleventh Circuit appeal was located (see not_confirmed).

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The Court also agrees with the Magistrate Judge's conclusion that "continuous surface connection" means a surface water connection. ... A "continuous surface flow path" can only mean a continuous surface "water" flow path, rather than a surface path through which water occasionally flows. ... Defendants' Cross Motion for Summary Judgment (DE 154) is GRANTED.

United States v. Sharfi (Benjamin K. Sharfi; NeshaFarm, Inc.)

U.S. District Court for the Southern District of Florida · December 30, 2024 · No. 2:21-cv-14205-KAM (S.D. Fla.), DE 192 [25]

Holding: Report and Recommendation affirmed and adopted; "continuous surface connection" requires a surface-water connection; summary judgment for defendants.

Why it matters for a pond: A post-Sackett district court holding that a "continuous surface connection" means a surface-water connection. The order read the D. Conn. Andrews ruling as resting on "continuous surface flow paths"; compare the Second Circuit's non-precedential Andrews summary order (fed-caselaw-037).

Later history: R&R affirmed and adopted Dec. 30, 2024 (DE 192); judgment for defendants entered and case closed Dec. 30, 2024 (DE 193). A CourtListener RECAP copy of the district docket (retrieved 2026-09-28; may be incomplete) shows no later entries; any Eleventh Circuit appeal was not verified.

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None of the ... man-made ditches or channels at issue, namely the East-West Ditch, the North- South Ditch or the 84th Avenue Ditch, are “waters of the United States” because they are not “relatively permanent water” ... The Court also agrees with the Magistrate Judge’s conclusion that “continuous surface connection” means a surface water connection. ... Defendants’ Cross Motion for Summary Judgment (DE 154) is GRANTED.

United States v. Andrews

U.S. Court of Appeals for the Second Circuit (summary order) · March 19, 2025 · No. 24-1479 (2d Cir. Mar. 19, 2025) (summary order); district court: 677 F. Supp. 3d 74 (D. Conn. 2023), No. 3:20-cv-1300 (JCH) [26]

Holding: Affirmed the district court's order to the extent it imposed a restorative injunction against a Connecticut landowner (reviewing the liability ruling as its legal basis); rejected the argument that the case should be dismissed because there is no surface water on the property, stating the CWA does not require surface water but only soil regularly saturated by surface or ground water.

Why it matters for a pond: Post-Sackett enforcement that ended in a restoration injunction: the pro se landowner's argument that the absence of surface water on his property defeated jurisdiction was rejected. The summary order is non-precedential, and the Sharfi order read the underlying D. Conn. ruling as resting on "continuous surface flow paths," so the two decisions are not clearly in conflict.

Later history: Panel rehearing denied July 24, 2025; certiorari denied June 1, 2026 (No. 25-668).

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Andrews argues that the case should have been dismissed because there is no surface water on his property. ... The CWA applies to wetlands that have “a continuous surface connection” with “relatively permanent bod[ies] of water connected to traditional interstate navigable waters.” ... So the CWA does not require surface water but only soil that is regularly “saturated by surface or ground water.” ... we AFFIRM the order of the district court ... Mr. Andrews filled in approximately 13.3 acres of the 16.3 acres of jurisdictional wetlands on his property.

United States v. Andrews (Jeffrey Andrews, et al.)

U.S. District Court for the District of Connecticut · March 27, 2024 · No. 3:20-CV-1300 (JCH) (D. Conn.), Doc. 256 (Mar. 27, 2024); liability ruling reported at 677 F. Supp. 3d 74 (D. Conn. 2023) [11]

Holding: After a post-Sackett liability ruling that 16.3 acres of wetland on the property were waters of the United States, the court ordered the landowner to restore the disturbed wetlands using the government's Conceptual Wetland and Tributary-Restoration Plan (which includes filling in the unauthorized ditches and pond) as a substantive guide, with a special master; it found a $2 million penalty (section 301) and a $77,500 penalty (section 308) appropriate, subject to possible reduction, but delayed ordering penalties while restoration proceeds.

Why it matters for a pond: Shows the remedy side for an unpermitted pond and fill in federal wetlands: the pond itself can be ordered filled in, with a year of active restoration, seven years of monitoring, restoration costs estimated at about $3 million, and penalties the court found appropriate held over the owner pending restoration.

Later history: Default and final judgment entered May 3, 2024 (civil penalties to be determined after the Restoration Plan is completed, or earlier on a government motion for noncompliance). Second Circuit summary order, No. 24-1479 (Mar. 19, 2025), affirmed the order to the extent it imposed injunctive relief; panel rehearing denied July 24, 2025; certiorari denied June 1, 2026 (No. 25-668).

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(1) remove imported fill from jurisdictional areas; (2) grade where necessary to re-establish wetland hydrology ... (3) fill-in unauthorized ditches and the pond; (4) replace/remove a stream crossing structure and road; (5) seed and plant part of the violation area with wetland species ... (6) manage invasive species. ... active restoration within a year of the court's Order followed by a seven-year period of monitoring and adaptive management ... A Special Master shall be appointed to oversee the restorative injunction ... Mr. Andrews is to restore the disturbed wetlands on the Property

United States v. Andrews (Jeffrey Andrews, et al.)

U.S. District Court for the District of Connecticut · March 27, 2024 · No. 3:20-CV-1300 (JCH) (D. Conn.), Doc. 256 (Mar. 27, 2024); liability ruling reported at 677 F. Supp. 3d 74 (D. Conn. 2023) [11]

Holding: After a post-Sackett liability ruling that 16.3 acres of wetland on the property were waters of the United States, the court ordered the landowner to restore the disturbed wetlands using the government's Conceptual Wetland and Tributary-Restoration Plan (which includes filling in the unauthorized ditches and pond) with a special master, and deferred civil penalties while restoration proceeds.

Why it matters for a pond: Shows the remedy side for an unpermitted pond and fill in federal wetlands: the pond itself can be ordered filled in, with a year of active restoration, seven years of monitoring, restoration costs estimated in the millions, and penalties held over the owner.

Later history: Affirmed by the Second Circuit by summary order, No. 24-1479 (Mar. 19, 2025); rehearing denied July 24, 2025; certiorari denied June 1, 2026 (No. 25-668).

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the court agrees that a penalty of $2 million against Mr. Andrews for the section 301 violations and a penalty of $77,500 for the 308 violations is appropriate, subject to possible reduction upon completion of the Restoration Plan. ... proposes that Mr. Andrews be ordered to pay $391,359 ... and that $1,686,141, be held in abeyance ... given the estimated average cost of $3,030,000 for the restoration of the 13.3 affected acres ... the court will delay ordering ... penalties, provided the compliance of Mr. Andrews with the Order of restoration and restoration is completed.

United States v. Andrews

U.S. District Court for the District of Connecticut · June 11, 2021 · No. 3:20-cv-1300 (JCH) (D. Conn. 2021) [60]

Holding: Motion to dismiss for lack of jurisdiction denied; 2462 is an affirmative defense, not jurisdictional.

Why it matters for a pond: A landowner cannot get a fill case thrown out at the outset merely because the work is more than five years old.

Later history: Later remedy ruling (Mar. 27, 2024), 2d Cir. affirmance (Mar. 19, 2025) and cert. denial (June 1, 2026) are covered in the federal case-law topics.

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the statute of limitations is a defense to be asserted, as the Andrewses have here, in their Answer. ... Unless the allegations of a claim are, on the face of a complaint, all outside the limitations period and reduce the claim to less than colorable, it is not a basis upon which to argue that the court lacks subject matter jurisdiction. ... the fact that the Complaint relies on events occurring more than 5-years before commencement of the suit does not mean it is time barred. The United States sought an injunction addressed to ongoing conduct and violations ... which cannot be time barred.

Cottonwood Environmental Law Center v. Yellowstone Mountain Club, LLC

U.S. District Court for the District of Montana · December 19, 2025 · No. CV-23-26-BU-BMM (D. Mont. Dec. 19, 2025), Doc. 140 [28]

Holding: On summary judgment, dismissed the direct-discharge claim for one golf-course pond (Hole 4 Pond) because it was not pleaded, but found genuine disputes of fact on whether two other golf-course ponds (Hole 6 and Hole 12), whose overflow outlet empties into a dry wash or intermittent/ephemeral stream located 3,500 feet from the South Fork of the Gallatin River, contain reclaimed water and discharge pollutants to a navigable water.

Why it matters for a pond: A pond's overflow or spillway outlet can itself be litigated as a point-source discharge if the pond holds pollutants and the outlet channel reaches a federal water; the downstream channel's status was a jury question here.

Later history: Jan. 29, 2026 order: the East Golf Course tributary is a navigable water; the jury to decide the Middle Golf Course tributary. Jury trial Feb. 3-5, 2026; clerk's judgment for Yellowstone Mountain Club Feb. 6, 2026; plaintiff appealed (Ninth Circuit No. 26-779). No Ninth Circuit decision located on govinfo as of Sept. 28, 2026.

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as long as the tributary would flow into the navigable body [under certain conditions], it is capable of spreading environmental damage ... are water hazards located on Yellowstone's golf course. ... The Hole 6 Pond contains an overflow outlet structure that releases water from the Hole 6 Pond when water levels rise too high during rainfall or snowmelt. ... The outlet structure empties into an upland stream, located 3,500 feet from the South Fork of the Gallatin River. ... conflicting evidence raises a genuine issue of material fact to defeat summary judgment regarding the outlet structure

United States v. Sweeney (John Donnelly Sweeney and Point Buckler Club, LLC)

U.S. District Court for the Eastern District of California · October 18, 2024 · No. 2:17-cv-00112-KJM (E.D. Cal.), ECF No. 287 (Oct. 18, 2024) [30]

Holding: Sackett did not change the result: the defendants' unpermitted, non-exempt construction of a nearly mile-long levee closing seven breaches around a tidal-marsh island discharged fill directly into tidal waters and abutting wetlands, which remain waters of the United States; motion for new trial and to amend findings denied.

Why it matters for a pond: Diking or impounding areas connected to tidal water remains federally regulated after Sackett, and a levee built by closing old breaches was held to be neither permitted nor exempt.

Later history: The court accepted the magistrate judge's findings and recommendations on a restoration plan (ECF No. 291) and on Feb. 26, 2025 denied Sweeney's reconsideration motion based on inability to pay; the island was transferred to the John Muir Land Trust after a sheriff's auction (notice filed Jan. 24, 2025). On July 10, 2025 (filed July 11, 2025) the court stayed enforcement of the restoration injunction while the Trust restores the island, and preserved the United States' right to move for a civil penalty assessment if the stay is lifted.

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"Defendants' construction of a nearly mile-long earthen levee, including ... defendants' filling and closure of seven breaches and their new, higher levee's ... "Specifically, the new levee eliminated tidal exchange to nearly 30 acres." ... violated and remained in violation of the CWA "as a result of his unpermitted, non-exempt ... construction of a levee." ... because the court's prior judgment complies with ... Sackett, there is no intervening change in controlling law. ... pollutants into tidal waters, which previously were, and continue to be "navigable waters" under

Lewis v. United States (Garry L. Lewis; G. Lewis-Louisiana, L.L.C.)

U.S. Court of Appeals for the Fifth Circuit · December 18, 2023 · Nos. 21-30163 c/w 23-30387 (5th Cir. 2023) (published) [36]

Holding: Under Sackett, the Lewis tracts are not waters of the United States as a matter of law; judgment vacated and remanded with instructions to enter judgment for the landowners.

Why it matters for a pond: An early circuit application of Sackett: where the nearest relatively permanent water was miles away and separated from the tracts by roadside ditches, a culvert and a non-relatively permanent tributary, the Fifth Circuit found no continuous surface connection as a matter of law.

Later history: Not verified beyond this opinion. The opinion also notes judgment was entered for the Sacketts on remand (D. Idaho Oct. 5, 2023).

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We hold that the Supreme Court’s recent decision in Sackett v. EPA controls the undisputed facts here and mandates that Appellants’ property lacks “wetlands [that] have ‘a continuous surface connection ... Recall that the nearest relatively permanent body of water is removed miles away from the Lewis property by roadside ditches, a culvert, and a non-relatively permanent tributary. ... we VACATE the judgment of the district court and REMAND with instructions to enter judgment in favor of Lewis that the tracts in question are not “waters of the United States” under Sackett.

Lewis v. United States (Garry Lewis, G. Lewis Louisiana, LLC, et al. v. United States, U.S. Army Corps of Engineers, et al.)

U.S. District Court for the Middle District of Louisiana · January 29, 2025 · No. 17-1644-JWD-SDJ (M.D. La.), Doc. 192 (Jan. 29, 2025); Doc. 246 (Sept. 4, 2026); Doc. 248 (Sept. 25, 2026) [37]

Holding: The Corps' approved jurisdictional determination for the 19-acre Milton Lane property was not in accordance with law after Sackett: the Corps itself found Switch Cane Bayou intermittent, and an intermittent flow, even one that is both seasonal and intermittent, does not make a tributary a water of the United States; the court declined to remand and found the bayou is not a tributary of the United States on the property.

Why it matters for a pond: Many embankment ponds are built across intermittent drainages. This court held that a channel the Corps itself found to have only intermittent flow (never shown to flow continuously for any period, even seasonally) is not a covered tributary. It did not reject jurisdiction over channels with continuous seasonal flow: it cited the Northern District of California's Sunnyvale ruling with 'cf.' as finding tributaries relatively permanent where flow was seasonally continuous.

Later history: Sept. 4, 2026 (Doc. 246): plaintiffs awarded $18,606.25 in attorney's fees on their motion tied to the court's earlier contempt finding against the Corps for noncompliance with a scheduling order. Sept. 25, 2026 (Doc. 248): the remaining Federal Tort Claims Act damages claims (including those over Corps delay in processing JD requests) dismissed without prejudice under the discretionary function exception. Related Fifth Circuit decision: Lewis v. United States, 88 F.4th 1073 (5th Cir. 2023).

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At the heart of this matter is a 19-acre property ... the Corps identifies Switch Cane Bayou as an intermittent tributary, with "intermittent flow in a typical year." ... The Corps' attempted interpretation, that an intermittent flow-even one that is both seasonal and intermittent-suffices for Clean Water Act jurisdiction, is not consistent with the statute. ... The Court finds that Switch Cane Bayou is not a tributary of the United States on the Milton Lane Property.

Lewis v. United States (Garry Lewis, G. Lewis Louisiana, LLC, et al. v. United States, U.S. Army Corps of Engineers, et al.)

U.S. District Court for the Middle District of Louisiana · January 29, 2025 · No. 17-1644-JWD-SDJ (M.D. La.), Doc. 192 (Jan. 29, 2025); Doc. 246 (Sept. 4, 2026); Doc. 248 (Sept. 25, 2026) [37]

Holding: The Corps' approved jurisdictional determination for the 19-acre Milton Lane property was not in accordance with law after Sackett: the Corps itself found Switch Cane Bayou intermittent, and an intermittent flow, even one that is both seasonal and intermittent, does not make a tributary a water of the United States; the court declined to remand and found the bayou is not a tributary of the United States on the property.

Why it matters for a pond: Many embankment ponds are built across intermittent drainages. This court held that a channel the Corps itself found to have only intermittent flow (never shown to flow continuously for any period, even seasonally) is not a covered tributary. It did not reject jurisdiction over channels with continuous seasonal flow: it cited the Northern District of California's Sunnyvale ruling with 'cf.' as finding tributaries relatively permanent where flow was seasonally continuous.

Later history: Sept. 4, 2026 (Doc. 246): plaintiffs awarded $18,606.25 in attorney's fees on their motion tied to the court's earlier contempt finding against the Corps for noncompliance with a scheduling order. Sept. 25, 2026 (Doc. 248): the remaining Federal Tort Claims Act damages claims (including those over Corps delay in processing JD requests) dismissed without prejudice under the discretionary function exception. Related Fifth Circuit decision: Lewis v. United States, 88 F.4th 1073 (5th Cir. 2023).

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The Corps interprets Rapanos as defining "a 'relatively permanent' (and therefore potentially jurisdictional) waterbody [as] one with flowing water 'at least seasonally (e.g., typically three months)' that is not solely in response to precipitation." ... "intermittent streams which do not typically flow year-round or have ... the Court is unaware of any court since Sackett that has held that a tributary with only an intermittent flow that is not continuous for at least some months of the year may be a relatively permanent water.

Lewis v. United States (Garry Lewis, G. Lewis Louisiana, LLC, et al. v. United States, U.S. Army Corps of Engineers, et al.)

U.S. District Court for the Middle District of Louisiana · January 29, 2025 · No. 17-1644-JWD-SDJ (M.D. La.), Doc. 192 (Jan. 29, 2025); Doc. 246 (Sept. 4, 2026); Doc. 248 (Sept. 25, 2026) [37]

Holding: The Corps' approved jurisdictional determination for the 19-acre Milton Lane property was not in accordance with law after Sackett: the Corps itself found Switch Cane Bayou intermittent, and an intermittent flow, even one that is both seasonal and intermittent, does not make a tributary a water of the United States; the court declined to remand and found the bayou is not a tributary of the United States on the property.

Why it matters for a pond: Many embankment ponds are built across intermittent drainages. This court held that a channel the Corps itself found to have only intermittent flow (never shown to flow continuously for any period, even seasonally) is not a covered tributary. It did not reject jurisdiction over channels with continuous seasonal flow: it cited the Northern District of California's Sunnyvale ruling with 'cf.' as finding tributaries relatively permanent where flow was seasonally continuous.

Later history: Sept. 4, 2026 (Doc. 246): plaintiffs awarded $18,606.25 in attorney's fees on their motion tied to the court's earlier contempt finding against the Corps for noncompliance with a scheduling order. Sept. 25, 2026 (Doc. 248): the remaining Federal Tort Claims Act damages claims (including those over Corps delay in processing JD requests) dismissed without prejudice under the discretionary function exception. Related Fifth Circuit decision: Lewis v. United States, 88 F.4th 1073 (5th Cir. 2023).

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This Motion was filed nearly a decade after Plaintiffs first requested a jurisdictional determination as to Milton Lane in 2014. (Doc. 23 at 5; Doc. 171.) The Corps did not provide the requested Approved Jurisdictional Determination until January 19, 2021. ... an agency may not simply change its findings of fact to meet the agency's preferred outcome in a case.

Lewis v. United States (Garry Lewis, G. Lewis Louisiana, LLC, et al. v. United States, U.S. Army Corps of Engineers, et al.)

U.S. District Court for the Middle District of Louisiana · January 29, 2025 · No. 17-1644-JWD-SDJ (M.D. La.), Doc. 192 (Jan. 29, 2025); Doc. 246 (Sept. 4, 2026); Doc. 248 (Sept. 25, 2026) [38]

Holding: The Corps' approved jurisdictional determination for the 19-acre Milton Lane property was not in accordance with law after Sackett: the Corps itself found Switch Cane Bayou intermittent, and an intermittent flow, even one that is both seasonal and intermittent, does not make a tributary a water of the United States; the court declined to remand and found the bayou is not a tributary of the United States on the property.

Why it matters for a pond: Many embankment ponds are built across intermittent drainages. This court held that a channel the Corps itself found to have only intermittent flow (never shown to flow continuously for any period, even seasonally) is not a covered tributary. It did not reject jurisdiction over channels with continuous seasonal flow: it cited the Northern District of California's Sunnyvale ruling with 'cf.' as finding tributaries relatively permanent where flow was seasonally continuous.

Later history: Sept. 4, 2026 (Doc. 246): plaintiffs awarded $18,606.25 in attorney's fees on their motion tied to the court's earlier contempt finding against the Corps for noncompliance with a scheduling order. Sept. 25, 2026 (Doc. 248): the remaining Federal Tort Claims Act damages claims (including those over Corps delay in processing JD requests) dismissed without prejudice under the discretionary function exception. Related Fifth Circuit decision: Lewis v. United States, 88 F.4th 1073 (5th Cir. 2023).

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This time, however, the basis for sovereign immunity is the discretionary function exception. ... Plaintiffs' FTCA claims concerning delays in processing Plaintiffs' JD requests will therefore be dismissed without prejudice. ... The remaining FTCA claims against Defendants are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.

The Glynn Environmental Coalition, Inc. v. Sea Island Acquisition, LLC

U.S. Court of Appeals for the Eleventh Circuit · July 29, 2025 · No. 24-10710 (11th Cir. July 29, 2025) (published); district court No. 2:19-cv-00050 (S.D. Ga.) [39]

Holding: A landowner that accepted nationwide permit coverage based on a Corps preliminary jurisdictional determination did not waive its right to contest Clean Water Act jurisdiction in a citizen suit; and the citizen-suit complaint failed to allege a continuous surface connection because culverts and pipes that might sometimes connect the wetland, prior tidal exchange, same-basin location, saturation and hydric soils do not show one. Dismissal affirmed.

Why it matters for a pond: Many pond projects proceed under a preliminary JD plus a nationwide permit. The Eleventh Circuit read the preliminary-JD waiver narrowly, and held that culvert or pipe links alone do not plead a continuous surface connection.

Later history: Rehearing denied Aug. 29, 2025; certiorari denied Mar. 23, 2026 (No. 25-908).

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owns a 0.49-acre parcel on St. Simons Island, Georgia, that contained a wetland. ... allowed Sea Island to fill the wetland under a nationwide general permit. ... constitutes agreement that all wetlands and other water bodies on the site affected in any way by that activity are jurisdictional waters of the United States ... First, the waiver applies only to actions to enforce the permit authorization ... Sea Island did not waive its jurisdictional challenge for the purposes of suits alleging violations of the Clean Water Act outside of the permit.

The Glynn Environmental Coalition, Inc. v. Sea Island Acquisition, LLC

U.S. Court of Appeals for the Eleventh Circuit · July 29, 2025 · No. 24-10710 (11th Cir. July 29, 2025) (published); district court No. 2:19-cv-00050 (S.D. Ga.) [39]

Holding: A landowner that accepted nationwide permit coverage based on a Corps preliminary jurisdictional determination did not waive its right to contest Clean Water Act jurisdiction in a citizen suit; and the citizen-suit complaint failed to allege a continuous surface connection because culverts and pipes that might sometimes connect the wetland, prior tidal exchange, same-basin location, saturation and hydric soils do not show one. Dismissal affirmed.

Why it matters for a pond: Many pond projects proceed under a preliminary JD plus a nationwide permit. The Eleventh Circuit read the preliminary-JD waiver narrowly, and held that culvert or pipe links alone do not plead a continuous surface connection.

Later history: Rehearing denied Aug. 29, 2025; certiorari denied Mar. 23, 2026 (No. 25-908).

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At best, the expert offers that culverts and pipes might sometimes connect the wetland to the other bodies of water mentioned, but that fact does not tell us whether the connection is continuous. ... none supports the conclusion that the wetland had a "continuous surface connection" to a water of the United States. ... Although Sea Island could not have destroyed the Corps's jurisdiction by illegally constructing the road between the wetland and the salt marsh to create a "demarcation," ... We AFFIRM the dismissal of the environmentalists' amended complaint.

The Glynn Environmental Coalition, Inc. v. Sea Island Acquisition, LLC

U.S. Court of Appeals for the Eleventh Circuit · July 29, 2025 · No. 24-10710 (11th Cir. 2025) [39]

Holding: Majority affirmed dismissal of a citizen suit over wetland fill for failure to allege a continuous surface connection; the concurrence (Pryor, C.J.) separately concluded that citizens cannot sue to enforce section 404 permits.

Why it matters for a pond: Signals, but does not decide for the Eleventh Circuit, that section 404 permit conditions are not citizen-enforceable.

Later history: Rehearing denied Aug. 29, 2025; certiorari denied Mar. 23, 2026 (No. 25-908), per the federal-fed-gap2-recent-cases topic.

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section 1365 of the Clean Water Act does not allow citizen suits to enforce permits issued un-der section 1344. ... I would join the Fifth and Third Circuits and hold that the environmentalists lack the author-ity to enforce a permit issued under section 1344. ... The citizen-suit provision does not include an enumerated authorization to enforce a permit or condition of a permit issued under section 1344

Inland Empire Waterkeeper v. Corona Clay Co.

U.S. Court of Appeals for the Ninth Circuit · August 5, 2026 · Nos. 24-6090, 24-6199 (9th Cir. filed Aug. 5, 2026, amended Sept. 3, 2026) (published) [40]

Holding: Whether a water is a "water of the United States" is a merits element, not a question of subject-matter jurisdiction; but because Sackett changed the law, the defendant is entitled to a new trial on whether Temescal Creek (a 22-mile tributary of the Santa Ana River) is a water of the United States, and the court remanded rather than decide the creek's status itself. The panel said the circuit's earlier Moses rule for seasonally intermittent streams is difficult to square with Sackett.

Why it matters for a pond: Within the Ninth Circuit the status of seasonal and intermittent streams, the kind often dammed for ponds, is now openly unsettled; prior circuit precedent treating them as federal can no longer be relied on without question.

Later history: The Sept. 3, 2026 order recalled the mandate, amended the Aug. 5, 2026 opinion, barred further rehearing petitions and stated that the order constitutes the mandate; remanded to the Central District of California (No. 8:18-cv-00333) for further proceedings on Temescal Creek. No remand ruling located as of Sept. 28, 2026.

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Corona's facility is near Temescal Creek-a 22-mile stream connecting Lake Elsinore and the Santa Ana River. ... In total, the jury found 12,541 violations of the Clean Water Act. ... proof that Temescal Creek is a water of the United States is not required to confer federal subject-matter jurisdiction over this case. ... on the present record, we cannot determine in the first instance whether Temescal Creek satisfies the new standard.

Inland Empire Waterkeeper v. Corona Clay Co.

U.S. Court of Appeals for the Ninth Circuit · August 5, 2026 · Nos. 24-6090, 24-6199 (9th Cir. filed Aug. 5, 2026, amended Sept. 3, 2026) (published) [40]

Holding: Whether a water is a "water of the United States" is a merits element, not a question of subject-matter jurisdiction; but because Sackett changed the law, the defendant is entitled to a new trial on whether Temescal Creek (a 22-mile tributary of the Santa Ana River) is a water of the United States, and the court remanded rather than decide the creek's status itself. The panel said the circuit's earlier Moses rule for seasonally intermittent streams is difficult to square with Sackett.

Why it matters for a pond: Within the Ninth Circuit the status of seasonal and intermittent streams, the kind often dammed for ponds, is now openly unsettled; prior circuit precedent treating them as federal can no longer be relied on without question.

Later history: Mandate recalled and opinion amended Sept. 3, 2026; remanded to the Central District of California (No. 8:18-cv-00333) for further proceedings on Temescal Creek. No remand ruling as of Sept. 28, 2026.

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we reasoned that even a tributary that was "dry during much of the year," so long as it flowed continuously on occasion, was sufficient to trigger regulation under the Clean Water Act. ... Sackett's emphasis on relative permanence and a continuous surface connection to navigable water suggests otherwise. ... While we do not decide the extent to which Moses remains good law after Sackett, we observe that its interpretation of the Rapanos plurality is difficult to square with Sackett.

San Francisco Baykeeper v. City of Sunnyvale

U.S. District Court for the Northern District of California · December 11, 2023 · No. 5:20-cv-00824-EJD (N.D. Cal. Dec. 11, 2023), Dkt. 199 (cited as 2023 WL 8587610 in United States v. Sweeney, E.D. Cal. Oct. 18, 2024) [46]

Holding: Sackett does not alter the court's earlier summary-judgment findings: seasonal creeks that flow continuously during some months and not in the dry months are relatively permanent tributaries, and a man-made channel with seasonal flow still qualifies; motion for reconsideration denied.

Why it matters for a pond: Contrasts with Sharfi (S.D. Fla. 2024), which held man-made ditches with at most seasonal flow were not relatively permanent: in this court a creek or man-made channel that flows continuously during some months (and more than in direct response to rain) remains federal, and being man-made does not take a channel out of the Act. Lewis (M.D. La. 2025) cited this ruling with 'cf.' and is not in conflict with it, because the bayou in Lewis was never shown to flow continuously for any season.

Later history: Findings of fact and conclusions of law filed Mar. 31, 2026 (govinfo USCOURTS-cand-5_20-cv-00824-15) state that all five identified waters are waters of the United States, citing this order (ECF No. 199) and a later order denying reconsideration again (ECF No. 393, not reviewed). The rest of that ruling was not reviewed; no appeal was checked.

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protection still exists for seasonal rivers, creeks, and streams that are tributaries to ... intermittent flow to a WOTUS nonetheless qualifies as "relatively permanent" under Sackett and ... whereby they contain a continuous flow during some months and no flow during dry months, and ... Further, the Court notes that Sackett did not do away with the long-standing rule that manmade ... waters can qualify as WOTUS.

United States v. Melton E. "Val" Valentine, Jr., Melton E. "Skip" Valentine, III, and Indiantown Farm LLC

U.S. District Court for the Eastern District of North Carolina · September 27, 2024 · No. 5:22-cv-00512-M-KS (E.D.N.C.); order of Sept. 27, 2024 (DE 80), cited as 2024 WL 4379735 [41]

Holding: Order of Sept. 27, 2024 denied the landowners' motion for judgment on the pleadings (and the United States' motion to strike their affirmative defenses). As described by the Southern District of Florida in Sharfi, the court accepted as true, at the pleading stage, the government's allegation that the wetland had a continuous surface connection with the Roanoke River and its tributaries; whether that connection had to be surface water was not decided.

Why it matters for a pond: Shows that after Sackett the government can still get past the pleadings by alleging a continuous surface connection; the merits (whether the farm wetlands are federal waters) were left undecided when the court stayed the case on May 15, 2025 to give the agencies an opportunity to provide administrative guidance concerning key issues in the case, and no merits ruling appears on the docket since.

Later history: Stayed on May 15, 2025 to give the agencies an opportunity to provide administrative guidance concerning key issues in the case; orders of Sept. 8, 2025, Jan. 12-13, 2026 and June 15, 2026 continued the stay, and a Jan. 2026 order vacated the Feb. 24, 2026 final pretrial conference and Mar. 10, 2026 jury trial. On Sept. 14, 2026 the parties, noting the agencies' November 2025 proposed WOTUS rule and September 2026 supplemental proposal, jointly asked for a further 120-day stay, and an order on a motion to stay (DE 100) was entered Sept. 15, 2026 (text not read), so the case's status since then is not confirmed. No merits ruling appears on the docket (RECAP copy last updated Sept. 15, 2026; rechecked Sept. 29, 2026).

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Date Filed: Dec. 13, 2022 ... Cause: 33:1319 Clean Water Act ... ORDER denying 44 Motion for Judgment on the Pleadings and 46 Motion to Strike 42 Amended Answer to Complaint Affirmative Defenses. Signed by Chief U.S. District Judge Richard E. Myers II on 9/27/2024. ... MOTION for Judgment on the Pleadings filed by Indiantown Farm LLC, Melton "Skip" E. Valentine, III, Melton "Val" E. Valentine, Jr.

United States v. Melton E. "Val" Valentine, Jr., Melton E. "Skip" Valentine, III, and Indiantown Farm LLC

U.S. District Court for the Eastern District of North Carolina · September 27, 2024 · No. 5:22-cv-00512-M-KS (E.D.N.C.); order of Sept. 27, 2024 (DE 80), cited as 2024 WL 4379735 [25]

Holding: Order of Sept. 27, 2024 denied the landowners' motion for judgment on the pleadings (and the United States' motion to strike their affirmative defenses). As described by the Southern District of Florida in Sharfi, the court accepted as true, at the pleading stage, the government's allegation that the wetland had a continuous surface connection with the Roanoke River and its tributaries; whether that connection had to be surface water was not decided.

Why it matters for a pond: Shows that after Sackett the government can still get past the pleadings by alleging a continuous surface connection; the merits (whether the farm wetlands are federal waters) were left undecided when the court stayed the case on May 15, 2025 to give the agencies an opportunity to provide administrative guidance concerning key issues in the case, and no merits ruling appears on the docket since.

Later history: Stayed on May 15, 2025 to give the agencies an opportunity to provide administrative guidance concerning key issues in the case; orders of Sept. 8, 2025, Jan. 12-13, 2026 and June 15, 2026 continued the stay, and a Jan. 2026 order vacated the Feb. 24, 2026 final pretrial conference and Mar. 10, 2026 jury trial. On Sept. 14, 2026 the parties, noting the agencies' November 2025 proposed WOTUS rule and September 2026 supplemental proposal, jointly asked for a further 120-day stay, and an order on a motion to stay (DE 100) was entered Sept. 15, 2026 (text not read), so the case's status since then is not confirmed. No merits ruling appears on the docket (RECAP copy last updated Sept. 15, 2026; rechecked Sept. 29, 2026).

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In United States v. Valentine, 2024 WL 4379735 *4 (E.D.N.C. September 27, 2024), the court was presented with a motion for judgment on the pleadings where the government alleged that the wetland maintained a continuous surface connection with the Roanoke River and its tributaries, which allegation the court was required to accept as true. Whether the continuous connection had to be a surface water connection was not an issue.

United States v. Ace Black Ranches, LLP

U.S. District Court for the District of Idaho · August 29, 2024 · No. 1:24-cv-00113-DCN (D. Idaho Aug. 29, 2024), Dkt. 15 [44]

Holding: The government's Clean Water Act complaint against a cattle ranch was dismissed without prejudice (with leave to amend) because, although it referred to "adjacent wetlands" at least 29 times, it never alleged that those wetlands have a continuous surface connection with the Bruneau River.

Why it matters for a pond: A ranch enforcement case (river road crossings, gravel removal, wetlands leveled for a center-pivot system): after Sackett the government must plead specific facts of a surface-water connection, not just "adjacency".

Later history: Amended complaint filed Sept. 27, 2024; ranch's motion to dismiss it (filed Nov. 1, 2024) not decided; proceedings held in abeyance since Mar. 2025 at the government's request, most recently through Feb. 16, 2027 (order of Aug. 18, 2026).

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Ace Black Ranches operates a roughly 800-acre ranch in the Bruneau Valley ... Historically, the Ranch has been privately used for agriculture and cattle grazing. ... "constructed multiple road crossings in the Bruneau River and wetlands" impeding the flow of water and polluting the river. ... in mining sand and gravel from the River, Ace Black Ranches "disturb[ed] the riverbed" ... while constructing a center pivot irrigation system, Ace Black Ranches cleared and leveled "nearly all of the Ranch's wetlands."

United States v. Ace Black Ranches, LLP

U.S. District Court for the District of Idaho · August 29, 2024 · No. 1:24-cv-00113-DCN (D. Idaho Aug. 29, 2024), Dkt. 15 [44]

Holding: The government's Clean Water Act complaint against a cattle ranch was dismissed without prejudice (with leave to amend) because, although it referred to "adjacent wetlands" at least 29 times, it never alleged that those wetlands have a continuous surface connection with the Bruneau River.

Why it matters for a pond: A ranch enforcement case (river road crossings, gravel removal, wetlands leveled for a center-pivot system): after Sackett the government must plead specific facts of a surface-water connection, not just "adjacency".

Later history: Amended complaint filed Sept. 27, 2024; ranch's motion to dismiss it (filed Nov. 1, 2024) not decided; proceedings held in abeyance since Mar. 2025 at the government's request, most recently through Feb. 16, 2027 (order of Aug. 18, 2026).

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the term "adjacent wetlands" is used at least twenty-nine times in the Complaint. ... nowhere does the Government specify that these wetlands have a continuous surface connection with the River ... The Government's Complaint (Dkt. 1) is DISMISSED without prejudice. ... Any Amended Complaint must be filed with thirty (30) days of the date of this order. ... The Government still needs to connect any wetlands it believes Ace Black Ranches' has polluted with the River via a sufficient surface-water connection.

United States v. Ace Black Ranches, LLP

U.S. District Court for the District of Idaho · August 29, 2024 · No. 1:24-cv-00113-DCN, 2024 WL 4008545 (D. Idaho Aug. 29, 2024) [44]

Holding: Government's Clean Water Act complaint dismissed without prejudice (leave to amend within 30 days) for failing to plausibly allege that the wetlands at issue had a continuous surface connection to, and were indistinguishable from, the Bruneau River as Sackett requires.

Why it matters for a pond: Shows how courts apply Sackett in agricultural enforcement: the government must specifically plead and prove a surface-water connection for wetlands it claims are federal.

Later history: Not verified. Whether an amended complaint was filed was not checked.

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Until the Government has provided more detailed allegations and information, the Complaint fails to state a claim upon which relief can be granted and the Court must dismiss ... The Government still needs to connect any wetlands it believes Ace Black Ranches' has polluted with the River via a sufficient surface-water connection.

State of Texas, et al. v. U.S. Environmental Protection Agency, et al.

U.S. District Court for the Southern District of Texas (Galveston Division) · March 19, 2023 · No. 3:23-cv-17 (S.D. Tex. 2023) [32]

Holding: Preliminary injunction against the January 2023 WOTUS rule in Texas and Idaho; nationwide injunction denied.

Why it matters for a pond: Reason the pre-2015 regulatory regime (read consistently with Sackett) applies in Texas and Idaho.

Later history: EPA's status page (last updated Sept. 9, 2026) still lists Texas and Idaho as pre-2015-regime states. Later docket activity not checked.

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In sum, the court grants the States' motion for injunctive relief within their sovereign borders, Dkt. 13, and denies the Associations' request for a nationwide injunction, 20 Dkt. 15. Therefore, within the states of Texas and Idaho, the court enjoins the defendants from implementing or enforcing the final rule entitled "Revised Definition of 'Waters of the United States,'" 88 Fed. Reg. 3004 (Jan. 18, 2023), pending further order of this court.

State of Texas, et al. v. U.S. Environmental Protection Agency, et al.

U.S. District Court for the Southern District of Texas (Galveston Division) · March 19, 2023 · No. 3:23-cv-17; 662 F. Supp. 3d 739 (S.D. Tex. 2023) [32]

Holding: Preliminary injunction granted to Texas and Idaho against implementation or enforcement of the January 2023 WOTUS rule within those states; nationwide injunction sought by trade associations denied.

Why it matters for a pond: Source of the pre-2015 regime applying in Texas and Idaho today.

Later history: Per the agencies (90 FR 52498 n.39, Nov. 2025), plaintiffs later amended complaints to challenge the Amended 2023 Rule and the litigation was in abeyance as of the proposal signature date. Later docket activity not checked.

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In sum, the court grants the States' motion for injunctive relief within their sovereign borders, Dkt. 13, and denies the Associations' request for a nationwide injunction, 20 Dkt. 15. Therefore, within the states of Texas and Idaho, the court enjoins the defendants from implementing or enforcing the final rule entitled "Revised Definition of 'Waters of the United States,'" 88 Fed. Reg. 3004 (Jan. 18, 2023), pending further order of this court.

State of West Virginia, et al. v. U.S. Environmental Protection Agency, et al.

U.S. District Court for the District of North Dakota · April 12, 2023 · No. 3:23-cv-032 (D.N.D. 2023) [33]

Holding: Preliminary injunction against the January 2023 WOTUS rule limited to the 24 plaintiff states.

Why it matters for a pond: Reason the pre-2015 regime (read consistently with Sackett) applies in the 24 plaintiff states, which per EPA include Alabama, Florida, Georgia, Mississippi, South Carolina, Tennessee, Virginia and West Virginia among others.

Later history: EPA's status page (last updated Sept. 9, 2026) still lists these 24 states under the pre-2015 regime. Later docket activity not checked.

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this Court limits this injunction to the 24 States named as plaintiffs in this litigation. ... In sum, as to the 24 States who are parties to this lawsuit, the Court enjoins the Defendants from implementing or enforcing the 2023 Rule entitled "Revised Definition of 'Waters of the United ... States,'" 88 Fed. Reg. 3004 (Jan. 18, 2023). ... The Plaintiffs’ motion for preliminary injunction (Doc. No. 44) is GRANTED.

State of West Virginia, et al. v. U.S. Environmental Protection Agency, et al.

U.S. District Court for the District of North Dakota · April 12, 2023 · No. 3:23-cv-032; 669 F. Supp. 3d 781 (D.N.D. 2023) [33]

Holding: Preliminary injunction granted barring implementation or enforcement of the January 2023 WOTUS rule as to the 24 plaintiff states; relief limited to those states.

Why it matters for a pond: Source of the pre-2015 regime applying in 24 states, including most of the Southeast and much of the Midwest.

Later history: Per the agencies (90 FR 52498 n.39, Nov. 2025), complaints were amended to challenge the Amended 2023 Rule and the litigation was in abeyance as of the proposal signature date. Later docket activity not checked.

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this Court limits this injunction to the 24 States named as plaintiffs in this litigation. ... In sum, as to the 24 States who are parties to this lawsuit, the Court enjoins the Defendants from implementing or enforcing the 2023 Rule entitled "Revised Definition of 'Waters of the United ... States,'" 88 Fed. Reg. 3004 (Jan. 18, 2023).

Commonwealth of Kentucky, et al. v. Environmental Protection Agency, et al.

U.S. Court of Appeals for the Sixth Circuit · July 29, 2024 · Nos. 23-5343/5345 (6th Cir. 2024) (unpublished) [35]

Holding: Sua sponte dismissal for lack of standing without notice vacated; remanded to allow amendment.

Why it matters for a pond: After this decision the Sixth Circuit's stay ended, so the amended 2023 rule now applies in Kentucky (see EPA status claim).

Later history: Per EPA, the Sixth Circuit issued its mandate lifting the stay on September 23, 2024.

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We therefore vacate the district court’s ruling and remand the matter for further consideration and to allow Plaintiffs to amend their complaint(s). We add, however, an additional note. During the pendency of this appeal, the Agencies amended the Rule at issue in this case. The amendment, borne out of the Supreme Court’s decision in Sackett v. EPA, 598 U.S. 651 (2023), alleviated the vast majority of Plaintiffs’ alleged harms and put the viability of this suit into question.

South Florida Water Management District v. Miccosukee Tribe of Indians

Supreme Court of the United States · March 23, 2004 · 541 U.S. 95 (2004), No. 02-626 [50]

Holding: A point source need not generate the pollutant; a pump station that merely conveys polluted water can be a point source.

Why it matters for a pond: Bears on pipes, siphons, pumps or dam outlets that convey pond water: under Miccosukee, the fact that a conveyance does not itself generate the pollutant does not take it outside the point-source definition. The case did not involve ponds.

Later history: None shown in the source. (Prior history: the decision vacated and remanded the Eleventh Circuit judgment reported at 280 F.3d 1364.)

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A point source is, by definition, a “discernible, confined, and discrete conveyance.” § 1362(14) (emphasis added). That definition makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to “navigable waters,” which are, in turn, defined as “the waters of the United States.” § 1362(7). Tellingly, the examples of “point sources” listed by the Act include pipes, ditches, tunnels, and conduits, objects that do not themselves generate pollutants but merely transport them.

South Florida Water Management District v. Miccosukee Tribe of Indians

Supreme Court of the United States · March 23, 2004 · 541 U.S. 95 (2004), No. 02-626 [50]

Holding: Vacated and remanded for fact-finding on whether the two waters are 'meaningfully distinct'; declined to decide the unitary-waters theory.

Why it matters for a pond: Sets the 'same water body' versus 'meaningfully distinct' framing for pumping water out of one water into another; EPA later adopted 40 CFR 122.3(i).

Later history: None shown in the source. (Prior history: the decision vacated and remanded the Eleventh Circuit judgment reported at 280 F.3d 1364.)

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The Tribe does not dispute that if C–11 and WCA–3 are simply two parts of the same water body, pumping water from one into the other cannot constitute an “addition” of pollutants. ... it is possible that the District Court will conclude that C–11 and WCA–3 are not meaningfully distinct water bodies. If it does so, then the S–9 pump station will not need an NPDES permit. In addition, the Government’s broader “unitary waters” argument is open to the District on remand.

Friends of the Everglades v. South Florida Water Management District

U.S. Court of Appeals for the Eleventh Circuit · June 4, 2009 · 570 F.3d 1210 (11th Cir. 2009), No. 07-13829 [48]

Holding: Deferring under Chevron, upheld EPA's Water Transfers Rule as a reasonable construction of the ambiguous 'addition ... to navigable waters' language; pumping polluted canal water into Lake Okeechobee without NPDES permits did not violate the CWA.

Why it matters for a pond: First appellate decision upholding 40 CFR 122.3(i).

Later history: Rehearing en banc denied, 605 F.3d 962 (2010); cert. denied, 562 U.S. 1082 (2010) (as recounted in Catskill III, 2d Cir. 2017; see separate claim).

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Having concluded that the statutory language is ambiguous ... Because the EPA’s construction is one of the two readings we have found is reasonable, we cannot say that it is “arbitrary, capricious, or manifestly contrary to the statute.” ... Unless and until the EPA rescinds or Congress overrides the regulation, we must give effect to it. In the defendants’ appeal, we REVERSE the district court’s judgment that the operation of the S-2, S-3, and S-4 pumps without NPDES permits violates the Clean Water Act.

Friends of the Everglades v. South Florida Water Management District

U.S. Court of Appeals for the Eleventh Circuit · June 4, 2009 · 570 F.3d 1210 (11th Cir. 2009), No. 07-13829 [48]

Holding: (Describing earlier cases) Gorsuch and Consumers Power deferred to EPA's view that water passing through dams is not an addition of pollutants; they did not decide transfers between distinct water bodies.

Why it matters for a pond: Answers how the dam-release cases treat water (not sediment) passing through a dam.

Later history: Rehearing en banc denied, 605 F.3d 962 (2010); cert. denied, 562 U.S. 1082 (2010) (as recounted in Catskill III, 2d Cir. 2017; see separate claim).

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deferred to the ... EPA’s view that dams did not add pollutants, which meant that no NPDES permits were necessary. ... (1) the changes caused by the dams were not pollutants; and (2) even if they were, releasing water through a dam did not add those pollutants to the water because the water would have reached the downstream river anyway, and its passage through the dam did not change it. ... originate in Lake Michigan and do not enter the Lake from the outside world. ... Gorsuch and Consumers Power involved water that wound up where it would have gone anyway.

Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA (Catskill III)

U.S. Court of Appeals for the Second Circuit · January 18, 2017 · 846 F.3d 492 (2d Cir. 2017), Nos. 14-1823, 14-1909, 14-1991, 14-1997, 14-2003 [49]

Holding: Reversed the S.D.N.Y. vacatur and reinstated the Water Transfers Rule, holding it a reasonable interpretation of the CWA entitled to Chevron deference (Judge Chin dissented).

Why it matters for a pond: Current appellate status of 40 CFR 122.3(i): vacated by S.D.N.Y. in 2014, reinstated by the Second Circuit in 2017.

Later history: Rehearing denied April 18, 2017; certiorari denied February 26, 2018 in Nos. 17-418 and 17-446 (see separate claims).

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court accordingly vacated the Water Transfers Rule and remanded it to the ... We conclude that the Water Transfers Rule is ... based on a reasonable interpretation of the Clean Water Act and therefore ... entitled to Chevron deference. ... On March 28, 2014, the district court granted the plaintiffsʹ motions for ... Clean Water Act is ambiguous ... struck down the ... Water Transfers Rule as an unreasonable interpretation of the Act. ... we reverse the judgment of the district court and reinstate the challenged rule.

Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA (Catskill III)

U.S. Court of Appeals for the Second Circuit · January 18, 2017 · 846 F.3d 492 (2d Cir. 2017), Nos. 14-1823, 14-1909, 14-1991, 14-1997, 14-2003 [49]

Holding: (Footnote describing earlier cases) Gorsuch and Consumers Power involved water released back into the same water, which is not an 'addition' under either theory.

Why it matters for a pond: Official-source description of what the dam-release cases held about water passing through a dam.

Later history: Rehearing denied April 18, 2017; certiorari denied February 26, 2018 in Nos. 17-418 and 17-446 (see separate claims).

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Sixth Circuits deferred to the EPAʹs position that water released back into the same surrounding water from which it was taken is not an ʺadditionʺ to navigable waters under the CWA, even though the water so released contained material that either was or could be considered a pollutant. ... would not constitute ʺaddition[s] ... either under a unitary‐waters theory (because the potential pollutants in the dams cases were already within the navigable waters) or a non‐unitary‐waters theory (because those potential pollutants were not transferred from one navigable water body to another)

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

U.S. Supreme Court · June 22, 2009 · 557 U.S. 261 (2009) (No. 07-984, with No. 07-990) [51]

Holding: The Corps, not EPA, has authority to permit a discharge that meets the regulatory definition of 'fill material' (there, mine-tailings slurry that would raise a lake bed); CWA section 402(a) bars EPA from issuing section 402 permits for fill material that falls under the Corps' section 404 authority; and the Corps acted lawfully in issuing the 404 permit because EPA's new source performance standard does not apply to discharges of fill material.

Why it matters for a pond: Shows how the Court applied the division between section 404 (Corps; discharges defined as 'fill material') and section 402 (EPA; other pollutant discharges) to a slurry discharge that would raise a lake bed. The case did not involve pond sealing, and no agency source applying it to pond sealants was found.

Later history: No later decision overruling it was located. In Loper Bright Enterprises v. Raimondo (2024) the Supreme Court overruled Chevron but stated that holdings of prior cases that relied on the Chevron framework remain subject to statutory stare decisis (see separate claim).

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We conclude that because the slurry Coeur Alaska wishes to discharge is defined by regulation as “fill material,” 40 CFR § 232.2 (2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under § 404, rather than from the EPA, under § 402. ... Section 402 gives the EPA authority to issue “permit[s] for the discharge of any pollutant,” with one important exception: The EPA may not issue permits for fill material that fall under the Corps’ § 404 permitting authority.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

U.S. Supreme Court · June 22, 2009 · 557 U.S. 261 (2009) (No. 07-984, with No. 07-990) [51]

Holding: The Corps, not EPA, has authority to permit a discharge that meets the regulatory definition of 'fill material' (there, mine-tailings slurry that would raise a lake bed); CWA section 402(a) bars EPA from issuing section 402 permits for fill material that falls under the Corps' section 404 authority; and the Corps acted lawfully in issuing the 404 permit because EPA's new source performance standard does not apply to discharges of fill material.

Why it matters for a pond: Shows how the Court applied the division between section 404 (Corps; discharges defined as 'fill material') and section 402 (EPA; other pollutant discharges) to a slurry discharge that would raise a lake bed. The case did not involve pond sealing, and no agency source applying it to pond sealants was found.

Later history: No later decision overruling it was located. In Loper Bright Enterprises v. Raimondo (2024) the Supreme Court overruled Chevron but stated that holdings of prior cases that relied on the Chevron framework remain subject to statutory stare decisis (see separate claim).

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has issued a permit to petitioner Coeur Alaska, Inc. (Coeur Alaska), for a discharge of slurry into a lake ... Lower Slate Lake ... 23 acres in area. ... the lake is 51 feet deep at its maximum. The parties agree the lake is a navigable water of the United States ... intends to put 4.5 million tons of tailings in the lake. This will raise the lake ... bed 50 feet ... The EPA’s § 402 permit authorizes Coeur Alaska to discharge water from Lower Slate Lake into the downstream creek

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

U.S. Supreme Court · June 22, 2009 · 557 U.S. 261 (2009) (No. 07-984, with No. 07-990) [51]

Holding: The Corps, not EPA, has authority to permit a discharge that meets the regulatory definition of 'fill material' (there, mine-tailings slurry that would raise a lake bed); CWA section 402(a) bars EPA from issuing section 402 permits for fill material that falls under the Corps' section 404 authority; and the Corps acted lawfully in issuing the 404 permit because EPA's new source performance standard does not apply to discharges of fill material.

Why it matters for a pond: Shows how the Court applied the division between section 404 (Corps; discharges defined as 'fill material') and section 402 (EPA; other pollutant discharges) to a slurry discharge that would raise a lake bed. The case did not involve pond sealing, and no agency source applying it to pond sealants was found.

Later history: No later decision overruling it was located. In Loper Bright Enterprises v. Raimondo (2024) the Supreme Court overruled Chevron but stated that holdings of prior cases that relied on the Chevron framework remain subject to statutory stare decisis (see separate claim).

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Recognizing that some discharges (such as suspended or settleable solids) can have the associated effect, over time, of raising the bottom elevation of a water due to settling of waterborne pollutants, we do not consider such pollutants to be ‘fill material,’ and nothing in today’s rule changes that view. ... The preamble, then, is consistent with the Regas Memorandum. If a discharge does not qualify as fill material, the EPA’s new source performance standard applies. If the discharge qualifies as fill, the performance standard does not apply

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

U.S. Supreme Court · June 22, 2009 · 557 U.S. 261 (2009) (No. 07-984, with No. 07-990) [51]

Holding: The Corps, not EPA, has authority to permit a discharge that meets the regulatory definition of 'fill material' (there, mine-tailings slurry that would raise a lake bed); CWA section 402(a) bars EPA from issuing section 402 permits for fill material that falls under the Corps' section 404 authority; and the Corps acted lawfully in issuing the 404 permit because EPA's new source performance standard does not apply to discharges of fill material.

Why it matters for a pond: Shows how the Court applied the division between section 404 (Corps; discharges defined as 'fill material') and section 402 (EPA; other pollutant discharges) to a slurry discharge that would raise a lake bed. The case did not involve pond sealing, and no agency source applying it to pond sealants was found.

Later history: No later decision overruling it was located. In Loper Bright Enterprises v. Raimondo (2024) the Supreme Court overruled Chevron but stated that holdings of prior cases that relied on the Chevron framework remain subject to statutory stare decisis (see separate claim).

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it would treat mine tailings placed directly into the lake as “fill” under the § 404 permitting program. ... any spillover of the tailings, or chemicals from the tailings, into any nearby waterway ... as requiring a § 402 permit. ... the distinction it had previously recognized between discharges that have the immediate effect of raising the bottom elevation of water, and those that only have the “associated effect, over time, of raising the bottom elevation of a water due to settling of waterborne pollutants.” See 67 Fed. Reg. 31135 ... (concluding that § 402 applies to the latter)

United States v. Robertson

U.S. Court of Appeals for the Ninth Circuit · November 27, 2017 · No. 16-30178 (9th Cir. Nov. 27, 2017) (published); D. Mont. No. 6:15-cr-00007-DWM-1 [52]

Holding: Affirmed criminal convictions for knowingly discharging dredged or fill material into waters of the United States without a permit while building ponds, and for depredation of U.S. property; CWA jurisdiction was properly found under Justice Kennedy's Rapanos "significant nexus" test.

Why it matters for a pond: A criminal prosecution arising directly from unpermitted pond construction in a stream and wetlands. Note that the significant nexus test used to establish jurisdiction was later rejected in Sackett (2023).

Later history: Supreme Court granted certiorari, vacated the judgment and remanded for consideration of whether the case is moot (Apr. 15, 2019), after Robertson died and his representative was substituted. Disposition on remand not verified.

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Between October 2013 and October 2014, Joseph David Robertson excavated and constructed a series of ponds on National Forest System Lands and on the privately owned Manhattan Lode mining claim. ... Robertson discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract Creek. ... jurisdiction was determined to exist under the “significant nexus” test set forth in Justice Kennedy’s concurrence in Rapanos. We hold that there was no error in this. ... AFFIRMED.

Robertson v. United States

Supreme Court of the United States · April 15, 2019 · No. 18-609 (U.S. Apr. 15, 2019) (order) [53]

Holding: Motion to substitute the deceased petitioner's authorized representative granted; certiorari granted, Ninth Circuit judgment vacated, and case remanded for consideration of whether the case is moot.

Why it matters for a pond: The Ninth Circuit decision affirming the pond-construction convictions (No. 16-30178) no longer stands as a judgment; its reasoning also rested on the significant nexus test later rejected in Sackett (2023).

Later history: Judgment issued May 17, 2019 (docket). Disposition on remand not verified.

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The motion to substitute Carri Robertson, authorized representative, as petitioner in place of Joseph D. Robertson, Deceased is granted. ... Petition GRANTED. Judgment VACATED and case REMANDED for consideration of the question whether the case is moot.

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.

U.S. Supreme Court · December 1, 1987 · 484 U.S. 49 (1987) [54]

Holding: CWA section 505(a) does not authorize citizen suits for wholly past violations; plaintiffs must make a good-faith allegation of continuous or intermittent violation.

Why it matters for a pond: Whether a neighbor can sue over a completed pond or dam turns on whether the violation is still "ongoing"; the government is not subject to this limit.

Later history: Vacated and remanded the Fourth Circuit judgment (791 F.2d 304).

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we must decide whether § 505(a) of the Clean Water Act ... confers federal jurisdiction over citizen suits for wholly past violations. ... The most natural reading of "to be in violation" is a require-ment that citizen-plaintiffs allege a state of either continuous or intermittent violation - that is, a reasonable likelihood that a past polluter will continue to pollute in the future. ... citizens, un-like the Administrator, may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation.

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.

U.S. Supreme Court · December 1, 1987 · 484 U.S. 49 (1987) [54]

Holding: A good-faith allegation of continuous or intermittent violation suffices for jurisdiction; proof is not required at the threshold.

Why it matters for a pond: Frames the pleading fight in pond/dam fill citizen suits over whether fill left in place is an ongoing violation.

Later history: Vacated and remanded.

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Because we agree that § 505 confers jurisdiction over citizen suits when the citizen-plaintiffs make a good-faith alle-gation of continuous or intermittent violation ... The statute does not require that a defendant "be in violation" of the Act at the commencement of suit; rather, the statute requires that a defendant be "alleged to be in violation." ... In seeking to have a case dismissed as moot, however, the defendant's burden "is a heavy one."

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.

U.S. Supreme Court · December 1, 1987 · 484 U.S. 49 (1987) [54]

Holding: Notice exists to allow the violator to come into compliance; citizen suits supplement government enforcement.

Why it matters for a pond: A landowner who receives a 60-day notice has a window to resolve the matter (e.g., with the Corps) before suit.

Later history: Vacated and remanded.

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If the Administrator or the State commences enforcement ac-tion within that 60-day period, the citizen suit is barred ... the purpose of notice to the alleged violator is to give it an oppor-tunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit. ... the citizen suit is meant to supplement rather than to supplant governmental action.

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.

U.S. Supreme Court · January 12, 2000 · 528 U.S. 167 (2000) [55]

Holding: A citizen plaintiff's claim for civil penalties under CWA section 505 is not mooted merely because the defendant came into compliance after the suit began; civil penalties (payable to the Treasury) can redress injury by deterrence.

Why it matters for a pond: Coming into compliance (e.g., removing fill) after being sued does not by itself end a citizen suit's penalty claim.

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a district court may prescribe injunc-tive relief in such a suit; additionally or alternatively, the court may impose civil penalties payable to the United States Treasury. § 1365(a). ... erred in concluding that a citizen suitor's claim for civil penalties must be dismissed as moot when the ... defendant, albeit after commencement of the litigation, has come into compliance. ... Such penalties may serve, as an al-ternative to an injunction, to deter future violations

Benham v. Ozark Materials River Rock, LLC

U.S. Court of Appeals for the Tenth Circuit · March 22, 2018 · No. 17-5069 (10th Cir. 2018) (published) [56]

Holding: Affirmed a citizen-suit judgment for unpermitted fill (penalty plus restoration plan with conservation easement).

Why it matters for a pond: Shows the relief a neighbor or user can obtain against unpermitted fill in a stream: penalties payable to the Treasury plus court-ordered restoration.

Later history: Not checked.

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Ozark is a sand and gravel mining company that operates on property adjacent to Saline Creek in Oklahoma. Mr. Benham recreates in Saline Creek ... In March 2011, Mr. Benham served Ozark with a notice letter pursuant to Section 505 ... By June 1, 2011, Ozark had not addressed the CWA violations that Mr. Benham alleged in his notice, so he filed the instant citizen suit ... constitute a continuing violation of the CWA. Id. The district court imposed a civil penalty of $35,000 ... One element of the plan created a conservation easement for the restoration site.

Benham v. Ozark Materials River Rock, LLC

U.S. Court of Appeals for the Tenth Circuit · March 22, 2018 · No. 17-5069 (10th Cir. 2018) (published) [56]

Holding: Corps inspections finding no violation are not diligent prosecution under 33 U.S.C. 1365(b)(1)(B); the citizen suit was properly heard.

Why it matters for a pond: A Corps site visit or a "no violation" view does not by itself bar a neighbor's citizen suit over pond or dam fill.

Later history: Not checked.

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While it is true that Section 505 would prohibit Mr. Benham's suit if the Corps were "diligently prosecuting" an enforcement action, see 33 U.S.C. § 1365(b)(1)(B), the facts presented at trial show that the Corps was not diligently pursuing an enforcement action against Ozark. The district court found that the Corps had conducted several inspections of Ozark's operations by driving through the property and had concluded each time that there were no CWA violations. ... Section 505 contains the "diligently prosecuting" requirement, not an administrative exhaustion

Benham v. Ozark Materials River Rock, LLC

U.S. Court of Appeals for the Tenth Circuit · March 22, 2018 · No. 17-5069 (10th Cir. 2018) (published) [56]

Holding: The citizen-suit notice letter was adequate under 40 CFR 135.3(a).

Why it matters for a pond: Illustrates the level of detail a court expects in a pre-suit notice about pond/dam fill.

Later history: Not checked.

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An adequate notice provides "sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation ... A notice, then, must not merely "generally orient[] the agency or violator as to the type of violation." ... The notice describes the specific pollutants (dirt, sand, and gravel), specific locations (a road identified by description and aerial photograph), the specific sections of the CWA that were violated ... and a specific date of a violation (September 14, 2006).

Benham v. Ozark Materials River Rock, LLC

U.S. Court of Appeals for the Tenth Circuit · March 22, 2018 · No. 17-5069 (10th Cir. 2018) (published) [56]

Holding: Affirmed that unpermitted fill remaining in a creek and its wetlands was a continuing violation supporting citizen-suit jurisdiction; the legal definition was not contested on appeal.

Why it matters for a pond: In the Tenth Circuit, unremoved fill has been treated as an ongoing violation for Gwaltney purposes where the defendant did not contest that definition; the court did not independently decide the legal question.

Later history: Not checked.

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It determined that Ozark's violation was "continuing" based on the premise that "[u]ntil a pollutant, such as fill material, that has been placed in a wetland is removed, its presence constitutes a continuing violation." ... Ozark does not contest this definition of a "continuing" violation ... Having reviewed the underlying support, we affirm the district court's conclusion that the roadway and filling of wetlands in Saline Creek constitute a continuing violation of the CWA. ... this is not an action for a "wholly past" violation.

Save the Cutoff v. Iron River Ranch II, L.L.C.

U.S. Court of Appeals for the Fifth Circuit · August 7, 2025 · No. 24-40717 (5th Cir. 2025) (per curiam, not designated for publication) [68]

Holding: Fill left in a creek after a completed 2022 discharge is not a continuous or intermittent violation; the citizen suit was dismissed for lack of jurisdiction and amendment (adding a section 402 theory) would be futile.

Why it matters for a pond: Under this unpublished Fifth Circuit decision, a citizen cannot bring a section 505 suit over a completed fill job merely because the fill remains in place; Gwaltney's ongoing-violation requirement limits citizens, not the government.

Later history: Not checked (no rehearing or certiorari located).

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Allegedly without proper permits, Defendants placed fill in Cedar Creek in February 2022 which "remains present in the Creek," ... The district court did not err in dismissing STC's case for lack of jurisdiction. ... While acknowledging that no new fill has been placed since 2022, STC contends Defendants' "action in leaving this fill in place" is an ongoing violation. ... That ongoing movement of fill corresponds to the continued seepage of oil in Hamker. That is, it is a "residual effect" of a previous discharge, not "a continuing discharge from a point source."

Ward v. Stucke

U.S. Court of Appeals for the Sixth Circuit · May 10, 2022 · No. 21-3911 (6th Cir. 2022) (not recommended for publication) [70]

Holding: Summary judgment for the landowners affirmed: the neighbors lacked standing for a citizen suit because they offered no evidence of an ongoing (as opposed to wholly past) violation; the court noted but did not resolve the circuit split on whether remaining fill is a continuing violation.

Why it matters for a pond: Confirms the question of whether fill left in place is an ongoing violation is unsettled among the circuits.

Later history: Affirmed S.D. Ohio No. 3:18-cv-263 (Sept. 3, 2021).

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In the 1990s, its previous owners installed two grassed waterway channels. ... Put simply, the Wards argue that any dredge and fill left by previous unpermitted land-altering activities also constitutes a continuing violation for the purposes of the CWA. As an initial matter, federal circuits are split with respect to this issue. But we need not address these conflicting standards now because the Wards have not provided evidence of the continued presence of dredged and/or fill material. ... We affirm the district court's grant of summary judgment.

Ward v. Stucke

U.S. District Court for the Southern District of Ohio · September 3, 2021 · No. 3:18-cv-263 (S.D. Ohio 2021) [69]

Holding: Summary judgment for landowners on the CWA citizen-suit count as wholly past; alternatively, the mere continued presence of fill would not be an ongoing violation; state-law claims dismissed without prejudice.

Why it matters for a pond: District-court view (S.D. Ohio) that unremoved fill does not by itself keep a citizen suit alive.

Later history: Affirmed on narrower grounds, 6th Cir. No. 21-3911 (May 10, 2022).

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Yet, even if there was evidentiary support for the Wards' assertion, the Court would not find that the continued presence of dredge or fill material constitutes an ongoing violation in this particular case. The Court acknowledges that this is an issue that has divided courts ... it requires (1) an addition (2) of a pollutant (3) to navigable waters (4) from a point source (5) by a person. In contrast to, for example, a defendant whose pipe continues to leak pollutant into a navigable water, the mere presence of a pollutant does not meet these requirements.

Atchafalaya Basinkeeper v. Chustz

U.S. Court of Appeals for the Fifth Circuit · April 25, 2012 · 682 F.3d 356 (5th Cir. 2012) (per curiam), No. 11-30471 [57]

Holding: CWA section 505 (33 U.S.C. 1365) does not authorize citizen suits to enforce the conditions of a Corps-issued section 404 permit; dismissal affirmed.

Why it matters for a pond: In the Fifth Circuit, a neighbor cannot use a section 505 citizen suit to enforce a pond builder's section 404 permit conditions; the opinion notes the Corps enforces the permits it issues. (A discharge with no permit at all is a different theory; see claim -004.)

Later history: Cited as 682 F.3d 356 and followed in the Glynn concurrence (11th Cir. 2025); no further history checked.

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The district court dismissed Appellants' case after determining that the Act does not allow citizen suits to enforce the conditions of a § 1344 permit. We AFFIRM. ... It would be especially odd for Congress to provide citizen suits for § 1342 permit condition violations so plainly in the text of § 1365(f)(6) and simultaneously to bury the right to sue for § 1344 permit condition violations within a tri-level maze of statutory cross-references. ... we hold that the Act does not provide citizens the right to sue to enforce the conditions of § 1344 permits. AFFIRMED.

Paolino v. JF Realty, LLC

U.S. District Court for the District of Rhode Island · July 24, 2013 · C.A. No. 12-039-ML (D.R.I. 2013) [58]

Holding: Motion to dismiss former owners denied at the pleading stage given alleged continuing control and permit ownership.

Why it matters for a pond: Ownership transfers matter in citizen suits (who is "in violation" now), but courts are divided; this is a runoff case, not a fill case.

Later history: Not checked.

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Other courts which have addressed the issue of defendants in a CWA citizen suit who no longer own the alleged source of pollution have reached divergent conclusions. ... Friends of Sakonnet v. Dutra, 738 F. Supp. 623 (D.R.I. 1990) - on which Ferreira relies - held that past owners of a polluting septic system could not be presently violating the CWA and were not properly subject to a CWA citizen suit. ... the prior owners had relinquished ownership and control of the polluting source to a third party

Gabelli v. SEC

U.S. Supreme Court · February 27, 2013 · 568 U.S. 442 (2013) [59]

Holding: Under 28 U.S.C. 2462 a government civil-penalty claim accrues when the violation occurs; no discovery rule.

Why it matters for a pond: Lower courts (e.g., Mlaskoch, D. Minn. 2014) rely on Gabelli to start the 2462 clock for CWA fill penalties at the time of the discharge, not when the Corps or EPA learns of it.

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Held: The five-year clock in § 2462 begins to tick when the fraud occurs, not when it is discovered. ... That is the most natural reading of the statute. ... Thus the "standard rule" is that a claim accrues ... to graft a discovery rule onto the statute of limitations of § 2462, we decline to do so.

Kokesh v. SEC

U.S. Supreme Court · June 5, 2017 · 581 U.S. ___ (2017), No. 16-529 [61]

Holding: SEC disgorgement is a "penalty" within 28 U.S.C. 2462 and must be sought within five years.

Why it matters for a pond: Supplies the test for whether a remedy is a 2462 "penalty"; no approved-source decision was found applying Kokesh to a CWA restoration order.

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The sole question presented in this case is whether disgorgement, as applied in SEC enforcement actions, is subject to §2462's limitations period. ... in part on "whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual." ... a pecuniary sanction operates as a penalty only if it is sought "for the purpose of punishment, and to deter others from offending in like manner"—as opposed to compensating a victim for his loss. ... Disgorgement, as it is applied in SEC enforcement proceedings, operates as a penalty under §2462.

United States v. Mlaskoch

U.S. District Court for the District of Minnesota · March 31, 2014 · Civil No. 10-2669 (JRT/LIB) (D. Minn. 2014) [12]

Holding: 28 U.S.C. 2462 governs the government's CWA civil-penalty claims and runs from the date of the violation; partial summary judgment on liability granted against the individual landowners (denied as to their excavating company).

Why it matters for a pond: Applies 2462 to unpermitted pond excavation/fill: government penalties are timely only for violations after the date five years before the complaint, unless an extension theory (continuing violations, equitable estoppel, tolling) applies - the court postponed deciding those theories.

Later history: Later proceedings not checked.

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In total, the Mlaskochs expanded three ponds and created one new pond. ... CWA does not contain a statute of limitations. ... numerous courts have applied the default limitations provision found in 28 U.S.C. § 2462 to government enforcement actions for civil fines or penalties under the CWA. ... "the time for the United States to sue under § 2462 begins with the violation." ... The United States commenced this lawsuit on June 28, 2010, with the filing of its complaint. Therefore, in order for the action to be timely, Defendants' violations must have occurred after June 28, 2005.

United States v. Mlaskoch

U.S. District Court for the District of Minnesota · March 31, 2014 · Civil No. 10-2669 (JRT/LIB) (D. Minn. 2014) [12]

Holding: The five-year limit in 2462 does not bar the government's claims for restoration/injunctive relief; the concurrent-remedy doctrine does not apply against the United States.

Why it matters for a pond: A pond owner can be ordered to restore wetlands even if the government is too late to seek penalties.

Later history: Later proceedings not checked.

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restoration orders and other injunctions in CWA cases are not subject to a five year statute of limitations. ... overwhelmingly concluded that the concurrent remedy doctrine does not bar suits for injunctive relief brought by the government under the CWA where the five year limitation period of § 2462 has run. ... the Court concludes that the United States' claims for such relief are not barred, even if § 2642 would preclude it from recovering damages. ... the continuing violations doctrine, equitable estoppel, and

United States v. Rutherford Oil Corp.

U.S. District Court for the Southern District of Texas · August 31, 2010 · No. G-08-0231 (S.D. Tex. 2010), 756 F. Supp. 2d 782 (as cited in Mlaskoch) [13]

Holding: For government CWA civil penalties, 2462 has no discovery rule and failure to remedy a completed discharge is not a continuing violation; the limit does not apply to injunctions.

Why it matters for a pond: Under this reasoning, penalty exposure for a pond or dam built without a permit ends five years after the last discharge, even though the fill remains.

Later history: Not checked.

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this court holds that § 2462's statute of limitations runs from the date of the violation, not the date of its discovery. ... Courts have split as to whether the CWA creates a continuing obligation to remedy the effects of violations. ... A discharge in violation of the obligation at issue under § 1311(a) is not a continuing violation on the basis that the discharger fails to remedy its effects. ... Once the violator ceases its discharging, its violation ends and the statute of limitations begins to run. ... protection from civil penalties for actions completed more than five years before the

United States v. Rutherford Oil Corp.

U.S. District Court for the Southern District of Texas · August 31, 2010 · No. G-08-0231 (S.D. Tex. 2010) [13]

Holding: 28 U.S.C. 2462 does not apply to the government's claims for injunctive relief under the CWA.

Why it matters for a pond: Restoration of an unpermitted pond or dam can be sought by the government after penalties are time-barred.

Later history: Not checked.

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Various courts have held that § 2462 does not apply to claims for injunctive relief. ... The five-year limitations period is longer than most for civil penalties or damages, and it does not apply to the government's ability to seek injunctions to enforce the CWA.

United States v. Scruggs

U.S. District Court for the Southern District of Texas · January 12, 2009 · Civil Action G-06-776 (S.D. Tex. 2009) [71]

Holding: An unpermitted structure remaining in place after a settled violation was a single violation with continuing effects, not a new daily violation escaping the settlement.

Why it matters for a pond: Another district-court rejection of the idea that unremoved fill is a fresh violation every day; decided in a settlement-scope context rather than under 2462.

Later history: Not checked.

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because the after-the-fact permit was denied, and the extension and results of the dredging remain in place, yet unauthorized, they continue to be violations of the CWA and RHA. ... the magistrate judge found not a continuing violation or discharge, but a single violation with continuing effects. ... the court declines to adopt the theory under the circumstances presented. ... Therefore, the court was able to toll the statute of limitations as long as the material remained. United States v. Reaves

United States v. Smith

U.S. District Court for the Southern District of Alabama · July 24, 2014 · No. 12-00498-KD-C (S.D. Ala. 2014) [66]

Holding: After jury/court liability findings on unpermitted dams, the court ordered restoration under a temporary restorative injunction and a $78,000 civil penalty, treating the dams' harm as ongoing through trial for penalty-day counting.

Why it matters for a pond: Shows a government suit filed in 2012 over dams built roughly 1998-2005 (with a tolling agreement alleged) resulting in removal/reconfiguration orders and a penalty; the court did not issue a 2462 ruling in this order.

Later history: Later docket entries through Jan. 2015 exist on govinfo; not reviewed for appeal.

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Between approximately 1998-2004, Smith built five (5) dams on his properly ... did not apply for Section 404 CWA permits. ... the Government requested a tolling agreement from Smith for five (5) years ... the harm from Dams A, B, D, and E were ongoing through Phase II's conclusion ... maximum CWA penalty in the amount of $561,662,500 for 16,323 days of violations. ... a CWA civil penalty against Smith of $78,000. ... restorative injunction (the amended restoration plan for the site) against Smith is GRANTED in part

Mitchell v. U.S. Army Corps of Engineers

U.S. District Court for the Middle District of Louisiana · February 5, 2024 · No. 21-00478-BAJ-EWD (M.D. La. 2024) [62]

Holding: Suit (originally in state court) seeking to bar Corps claims and estop the Corps dismissed without prejudice for lack of derivative jurisdiction; merits not reached.

Why it matters for a pond: Illustrates how a signed tolling agreement can keep a pond owner's exposure open for years while an after-the-fact permit is pending; no court ruling on its effect.

Later history: Not checked.

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Plaintiffs' claims are DISMISSED WITHOUT PREJUDICE. ... the contractor transformed the resulting pit into a recreational pond and constructed a levee around said pond. ... "the time between the acceptance by the Corps of the ATF permit application and the final Corps decision . . . plus one year thereafter, will not be included in calculating any statute of limitations that might be applicable to the alleged statutory violation(s)." ... Defendant took no action regarding Plaintiffs' permit application between June 6, 2012, and April 20, 2020.

Phillips v. U.S. Army Corps of Engineers

U.S. District Court for the District of Utah · August 24, 2022 · No. 2:21-cv-00355-TS-DBP (D. Utah 2022) [63]

Holding: The Corps' requirement of an after-the-fact application and a signed tolling agreement before an administrative appeal of an approved JD did not state an unconstitutional-conditions claim.

Why it matters for a pond: Landowners seeking to appeal a Corps JD after unpermitted work should expect to sign a tolling agreement; courts have not found that requirement unconstitutional in this case.

Later history: Not checked.

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To appeal the final AJD, the Corps required Plaintiffs to submit an after-the-fact permit application for the unauthorized activities and sign a statute of limitations tolling agreement, as contemplated by the Corps' regulations. ... Plaintiffs challenge these actions as an unconstitutional condition ... Plaintiffs' claim challenging the preconditions to appeal fails to state a claim and the Court will dismiss it with prejudice.

In the Matter of Robert E. Cross and Wolf Creek Associates, LLC

U.S. EPA Region 8 (administrative order on consent; not a court) · November 28, 2006 · Docket No. CWA-08-2007-0006 [67]

Holding: Negotiated compliance order: the subsequent owners agreed to perform wetland restoration/creation and record a conservation deed restriction for violations committed by the prior owners, without admitting liability.

Why it matters for a pond: An EPA example of a later owner being required (by consent) to restore/mitigate a predecessor's unpermitted pond-related fill.

Later history: EPA docket lists the matter closed Feb. 22, 2017 (Completion and/or Termination of Administrative Order).

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on-site mitigation to compensate for approximately 6.22 acres of wetlands that were impacted by the previous owner of property called the Moses-Bolton Tract ... EPA agrees not to pursue any other civil enforcement action outside of this Consent Order against Robert E. Cross and WCA for these previous CWA violations. ... Respondents purchased approximately 78.44 acres comprising the Moses-Bolton Tract from Charles Lindy and Athalene Daniels on July 2,2002. ... placing spoil material into an adjacent wetland during the dredging of a pond on the Site.

In the Matter of Robert E. Cross and Wolf Creek Associates, LLC

U.S. EPA Region 8 (administrative order on consent; not a court) · November 28, 2006 · Docket No. CWA-08-2007-0006 [67]

Holding: Negotiated order; no admission of liability by the later purchasers.

Why it matters for a pond: Shows a later buyer can end up bearing restoration/mitigation for a predecessor's fill through a negotiated order even while disputing liability; it is not a ruling that later owners are liable.

Later history: Closed Feb. 22, 2017 per EPA docket.

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In signing this Consent Order, Robert E. Cross and WCA do not admit the FINDINGS OF FACT. ... Robert E. Cross and WCA assert that they had no knowledge of dredging and filling of wetlands or any Cease and Desist Order prior to purchasing the property. ... By entering into this Consent Order, Respondents do not admit that its activities at the site have caused any impact to jurisdictional wetlands or that it has any liability pursuant to the CWA at the site.

United States v. Maslonka

U.S. District Court for the Eastern District of Washington · September 7, 2023 · No. 2:20-CV-304-SAB (E.D. Wash. 2023) (consent decree) [64]

Holding: Court-entered consent decree resolving United States (EPA) CWA 301(a) claims over an unpermitted earthen dam: dam removal and restoration, $50,000 penalty, deed notice and recording, obligations binding on successors and assigns.

Why it matters for a pond: Shows how a restoration obligation for an unpermitted dam is attached to the land and passes notice to future buyers.

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binding upon Defendant ... his successors and assigns ... shall not alter or relieve Defendant of his obligation to comply with all of the terms of this Consent Decree. At least 15 calendar days prior to the transfer ... provide written notice and a true copy of this Consent Decree to his successors in interest ... pay a civil penalty to the United States in the amount of $50,000.00 ... each deed, title, or other instrument conveying an interest in any property identified in Appendix A or Appendix B shall contain a notice stating that the property is subject to this Consent Decree

United States v. Maslonka

U.S. District Court for the Eastern District of Washington · September 7, 2023 · No. 2:20-CV-304-SAB (E.D. Wash. 2023) (consent decree) [64]

Holding: Consent decree requiring removal of an unpermitted earthen dam and restoration; NWP 32 used to authorize remaining fill and restoration work.

Why it matters for a pond: A dam across a slough built without a 404 permit was ordered removed about eight years after construction.

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The Parties acknowledge that Nationwide Permit 32, found at 86 Fed. Reg. 73,579 (Dec. 27, 2021), authorizes any fill that was placed or deposited as of August 26, 2022, in the areas identified in Appendix A to remain in place ... earthwork and dam construction in Perkins Slough during September 2015 ... removal of fill from Perkins Slough, including removal of the dam and the sediment deposited upstream and downstream of the dam ... Estimates of the volume of fill material in the dam have ranged from approximately 700 to 1,000 cubic yards of fill material.

United States v. Bunn

U.S. District Court for the District of Montana · August 31, 2021 · No. 20-107-M-DLC-KLD (D. Mont. 2021) (partial consent decree) [65]

Holding: Partial consent decree resolving United States CWA claims against the landowner for unpermitted pond excavation/floodplain work: restoration plus civil penalty; obligations bind successors.

Why it matters for a pond: A county floodplain "no permit needed" answer did not resolve federal CWA exposure for pond excavation; restoration obligations are structured to survive a sale.

Later history: Not checked (the decree was "partial"; claims against the co-defendant contractor were not reviewed).

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shall not alter or relieve Mr. Bunn of his obligation to comply with all of the terms of this Consent Decree. At least 15 days prior to the transfer ... ($50,000) ... contends that he initiated earthwork ... receiving an email on June 5, 2013 from the County Floodplain Administrator that she would not require a permit for what was proposed. The ensuing earthwork involved excavating three ponds, and scalping of the floodplain. ... notified by the Corps of Engineers that the resulting clearing and earthwork disturbance occurred without obtaining required Section 401 and 404 permits.

Hoopa Valley Tribe v. Federal Energy Regulatory Commission

U.S. Court of Appeals for the District of Columbia Circuit · January 25, 2019 · No. 14-1271; 913 F.3d 1099 (D.C. Cir. 2019) [72]

Holding: Withdrawal-and-resubmission of water quality certification requests under an agreement between the states and the licensee does not trigger new statutory review periods; California and Oregon waived section 401 authority for the project. FERC's orders were vacated and remanded. The court declined to resolve whether withdrawing and submitting a wholly new request would be legitimate.

Why it matters for a pond: Shows the one-year statutory maximum in 33 U.S.C. 1341(a)(1) is enforced: a certifying authority cannot extend it by agreeing with an applicant to withdraw and resubmit the same request.

Later history: Direct subsequent history (e.g., any certiorari petition) is not shown in the cached sources and was not verified. Later related decisions, as described in EPA's Jan. 15, 2026 proposed rule preamble (91 FR 2008): Vill. of Morrisville v. FERC, 136 F.4th 1117 (D.C. Cir. 2025) distinguished applicant-initiated unilateral withdrawals; Turlock Irrigation Dist. v. FERC, 36 F.4th 1179 (D.C. Cir. 2022) recognized denial without prejudice within one year as action on a request. Those opinions were not read directly.

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the issue in this case is whether states waive Section 401 authority by deferring review and agreeing with a licensee to treat repeatedly withdrawn and resubmitted water quality certification requests as new requests. We conclude that the withdrawal-and-resubmission of water quality certification requests does not trigger new statutory periods of review...The record does not indicate that PacifiCorp withdrew its request and submitted a wholly new one in its place, and therefore, we decline to resolve the legitimacy of such an arrangement...Accordingly, we conclude that California and Oregon have waived their Section 401 authority with regard to the Project.

National Wildlife Federation v. Lohr

U.S. District Court for the District of Columbia · February 22, 2024 · No. 19-cv-2416 (TSC), ECF No. 44 (D.D.C. Feb. 22, 2024); cited by USDA as 2024 WL 727695 [73]

Holding: NRCS's 2020 final rule amending 7 CFR part 12 violated the APA because NRCS changed its policy on certifying pre-1996 wetland determinations without a reasoned explanation; rule vacated and remanded.

Why it matters for a pond: Explains why USDA issued the July 29, 2026 interim rule redefining when 1990-1996 wetland determinations are certified, which governs whether an older NRCS map can be relied on when siting a pond.

Later history: Oct. 8, 2024 (ECF No. 51): motion to alter judgment (remand without vacatur) denied. USDA issued an interim rule responding to the decision on July 29, 2026 (91 FR 47779). No appellate decision was researched.

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The court concludes that Plaintiff has standing, and that the 2020 Final Rule violates the APA because NRCS changed its policy regarding the certification of pre–1996 wetland determinations without providing a reasoned explanation. ... Accordingly, the 2020 Final Rule will be vacated and the case remanded to NRCS for further consideration consistent with this decision.

National Wildlife Federation v. Lohr

U.S. District Court for the District of Columbia · October 8, 2024 · No. 19-cv-2416 (TSC), ECF No. 51 (D.D.C. Oct. 8, 2024) [74]

Holding: Motion to alter judgment denied; vacatur of the 2020 Final Rule stands.

Why it matters for a pond: Confirms the 2020 certification rule did not remain in effect pending new rulemaking, leading to the 2026 interim rule.

Later history: USDA interim rule, 91 FR 47779 (July 29, 2026).

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Defendants moved to alter the judgment, asking the court to remand the case to NRCS without vacating the 2020 Final Rule to minimize disruption to the agency and the community while NRCS issues a new rule. Having considered the record and the briefs, the court will DENY Defendants’ Motion to Alter Judgment, ECF No. 47.

United States v. CITGO Petroleum Corp.

U.S. Court of Appeals for the Fifth Circuit · September 4, 2015 · No. 14-40128 (5th Cir. 2015) (opinion revised Sept. 9, 2015) [77]

Holding: The MBTA's prohibition on 'taking' migratory birds reaches only intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds; CITGO's MBTA convictions were reversed and the case remanded with instructions to enter a judgment of acquittal on the affected counts.

Why it matters for a pond: Shows that whether incidental bird deaths from construction or operations violate the MBTA has depended on the federal circuit: the Fifth Circuit agreed with Eighth and Ninth Circuit decisions reading 'take' narrowly, and contrasted Tenth and Second Circuit decisions. FWS's 2021 revocation rule stated a policy of treating incidental take as prohibited subject to enforcement discretion; whether that remains Interior's position was not confirmed.

Later history: No subsequent history was checked from an approved source.

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cases can be found to support either position. ... Compare Newton Cnty. Wildlife Ass’n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir. 1997), and Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 302 (9th Cir. 1991), with United States v. Apollo Energies, Inc., 611 F.3d 679, 686 (10th Cir. 2010); and United States v. FMC Corp., 572 F.2d 902, 905 (2d Cir. 1978). ... Further, the MBTA’s ban on “takings” only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.

Natural Resources Defense Council v. U.S. Department of the Interior

U.S. District Court for the Southern District of New York · August 11, 2020 · 478 F. Supp. 3d 469 (S.D.N.Y. 2020) (as cited in 86 FR 54643) [78]

Holding: As described by FWS, the court rejected Solicitor's Opinion M-37050's interpretation that the MBTA does not prohibit incidental take as contrary to the MBTA, and vacated the opinion.

Why it matters for a pond: The basis FWS gave in 2021 for returning to treating incidental take as prohibited; contrasts with the Fifth Circuit's CITGO holding.

Later history: Per 86 FR 54643: the United States filed a notice of appeal to the Second Circuit, then filed a stipulation to dismiss that appeal on February 25, 2021, and the Deputy Solicitor permanently withdrew M-37050 on March 8, 2021. Later history not checked; the opinion text itself was not retrieved.

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As noted above, on August 11, 2020, a court rejected the interpretation set forth in Solicitor's Opinion M-37050 as contrary to the MBTA and vacated that opinion. Natural Res. Def. Council v. U.S. Dep't of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020) (``NRDC''). ... the United States had filed a notice of appeal of the NRDC decision in the U.S. Court of Appeals for the Second Circuit. Since that time, the United States filed a stipulation to dismiss that appeal on February 25, 2021, and the Deputy Solicitor permanently withdrew M-37050 on March 8, 2021.

Northern Plains Resource Council v. U.S. Army Corps of Engineers

U.S. District Court for the District of Montana (Great Falls Division) · April 15, 2020 · No. CV-19-44-GF-BMM, Doc. 130 [75]

Holding: The Corps' 2017 reissuance of NWP 12 violated ESA section 7(a)(2) because substantial evidence showed it 'may affect' listed species and critical habitat and the Corps did not initiate programmatic consultation; reliance on General Condition 18 impermissibly delegated the Corps' initial effect determination to non-federal permittees. NWP 12 was remanded to the Corps, vacated pending completion of consultation and compliance with all environmental statutes and regulations, and the Corps was enjoined from authorizing dredge or fill activities under NWP 12 pending completion.

Why it matters for a pond: Context only: one federal district court found that the GC 18 pre-construction-notification mechanism, which the 2026 NWPs still rely on for ESA compliance (claim 014), did not satisfy the Corps' own section 7(a)(2) duty when it reissued the 2017 NWP 12 (utility lines). It is not a ruling on the pond-related NWPs or on the 2026 NWPs, and its broader relief was stayed by the Supreme Court except as to the Keystone XL pipeline (claim 016).

Later history: The district court's May 11, 2020 order granting partial vacatur and an injunction was stayed by the U.S. Supreme Court on July 6, 2020 (No. 19A1053) except as it applies to the Keystone XL pipeline, pending the Ninth Circuit appeal (claim 016). A June 2, 2022 district court order (Doc. 180, govinfo USCOURTS-mtd-4_19-cv-00044-7) refers to the federal defendants' 'Motion to Vacate April 15, 2020 and May 11, 2020 Decisions and Order' set for hearing June 30, 2022; the outcome of that motion and the Ninth Circuit disposition were not confirmed from an official source.

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General Condition 18 fails to ensure that the Corps fulfills its obligations under ESA Section 7(a)(2) because it delegates the Corps’ initial effect determination to non-federal permittees. ... In that sense, General Condition 18 turns the ESA’s initial effect determination ... over to non-federal permittees, even though the Corps must make that initial determination. See 50 C.F.R. § 402.14(a). ... NWP 12 is remanded to the Corps for compliance with the ESA. ... NWP 12 is vacated pending completion of the consultation process

U.S. Army Corps of Engineers v. Northern Plains Resource Council

Supreme Court of the United States · July 6, 2020 · No. 19A1053 (stay order) [76]

Holding: Stay granted in part: the district court's May 11, 2020 partial vacatur and injunction of NWP 12 stayed except as to the Keystone XL pipeline, pending Ninth Circuit appeal (Nos. 20-35412, 20-35414, 20-35415) and any certiorari petition.

Why it matters for a pond: Shows the district court's NWP 12 ESA ruling did not take broad effect; the question of GC 18's adequacy was not resolved on the merits by the Supreme Court.

Later history: Ninth Circuit disposition not confirmed from an official source.

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The application for stay presented to Justice Kagan and by her referred to the Court is granted in part and denied in part. The district court’s May 11, 2020 order granting partial vacatur and an injunction is stayed, except as it applies to the Keystone XL pipeline, pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit

More detail

More detail: 21 more verified statements on key court decisions

  • Current civil penalty maximums (EPA inflation adjustment table, 40 CFR 19.4, Table 1): for Clean Water Act violations occurring after November 2, 2015 with penalties assessed on or after January 8, 2025, the judicial civil penalty under 33 U.S.C. 1319(d) is up to $68,445 (statutory amount as enacted: $25,000); administrative Class I penalties under 1319(g)(2)(A) are up to $27,378 per violation with a $68,445 maximum; administrative Class II penalties under 1319(g)(2)(B) are up to $27,378 per violation with a $342,218 maximum.

    Applies when: Penalties assessed on or after January 8, 2025 for violations after November 2, 2015. 40 CFR 19.4, Table 1 (33 U.S.C. 1319(d), 1319(g)(2)(A), 1319(g)(2)(B)) [80]
    Show the source text
    the third column setting out the latest operative statutory civil monetary penalty levels for violations that occur or occurred after November 2, 2015, where penalties are assessed on or after January 8, 2025. ... | 33 U.S.C. 1319(d) | CLEAN WATER ACT (CWA) | 68,445 | 66,712 | 25,000 | 33 U.S.C. 1319(g)(2)(A) | CWA | 27,378/68,445 | 26,685/66,712 | 10,000/25,000 | 33 U.S.C. 1319(g)(2)(B) | CWA | 27,378/342,218
    Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

  • StatusPROPOSED RULE (not final) - how agencies are applying Loper Bright: in its January 15, 2026 proposed rule revising the CWA section 401 water quality certification regulations (comments were due February 17, 2026), EPA states that Loper Bright overruled the Chevron deference doctrine, that a court must adopt the interpretation it concludes is 'best' after applying all relevant interpretive tools, and that courts may still seek aid from the interpretations of those responsible for implementing particular statutes.

    91 FR 2008, 2015 (Jan. 15, 2026), FR Doc. 2026-00754, preamble [81]
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    In Loper Bright v. Raimondo, 603 U.S. 369 (2024), the Supreme Court overruled the longstanding Chevron deference doctrine. ... To resolve the meaning of disputed statutory language, a court must adopt the interpretation that the court ``after applying all relevant interpretive tools concludes is best.'' Id. at 400. When a court reviews an agency's statutory interpretations, Loper Bright noted that ``courts may . . . seek aid from the interpretations of those responsible for implementing particular statutes.''
    Open Federal Register / EPA (opens in a new tab)

  • DOJ enforcement context (Robertson): the U.S. Attorney for Montana announced on July 20, 2016 that Robertson, 77, was sentenced to 18 months in prison and three years' supervised release and ordered to pay $129,933.50 in restitution. When state and federal officials revisited in May 2014, the site was approximately 1.2 acres and the work consisted of nine ponds of varying sizes, some as large as approximately 4,900 square feet, placed directly in the stream and wetlands area; unconsolidated dredged material from the ponds had been used to create berms and had been placed in and around the stream and wetlands.

    U.S. Attorney's Office, District of Montana, press release (July 20, 2016) [82]
    Show the source text
    Joseph David Robertson, 77, was sentenced today to eighteen months in prison and three years’ supervised release for unauthorized discharge of pollutants into waters of the United States and injury or depredation of United States property. Robertson must also pay $129,933.50 in restitution. ... The site was now approximately 1.2 acres in size ... The work consisted of nine ponds of varying sizes, including some as large as approximately 4900 square feet that were placed directly in the stream and wetlands area. Unconsolidated dredged material from the ponds had been used to create the berms
    Open U.S. Department of Justice, U.S. Attorney's Office, District of Montana (opens in a new tab)

  • StatusIN FORCE as of EPA's page last updated September 9, 2026: because of the litigation, EPA and the Army implement the January 2023 WOTUS rule as amended by the September 2023 conforming rule in 24 states, the District of Columbia and the U.S. Territories, and in the other 26 states interpret 'waters of the United States' consistent with the pre-2015 regulatory regime and Sackett 'until further notice.' In Kentucky, the Sixth Circuit's mandate lifting its stay issued September 23, 2024, and the amended 2023 rule has been operative there since that date.

    EPA, Definition of "Waters of the United States": Rule Status and Litigation Update (last updated Sept. 9, 2026) [34]
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    On September 23, 2024, the Sixth Circuit issued a mandate lifting its stay order, and as of that date, the amended 2023 rule is operative in Kentucky ... the agencies are implementing the definition of “waters of the United States” under the January 2023 Rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories. In the other 26 states, the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime and the Sackett decision until further notice.
    Open U.S. Environmental Protection Agency (opens in a new tab)

  • StatusAndrews v. United States - Supreme Court: after the Second Circuit's March 19, 2025 decision (rehearing denied July 24, 2025), the landowner petitioned for certiorari (No. 25-668); the Court requested a response on January 22, 2026, the United States filed a brief in opposition on April 24, 2026, and the petition was DENIED on June 1, 2026.

    Andrews v. United States, No. 25-668 (U.S. June 1, 2026) (docket) [27]
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    Decision Date: | March 19, 2025 | Rehearing Denied: | July 24, 2025 ... | Jan 22 2026 | Response Requested. ... | Apr 24 2026 | Brief of respondent United States in opposition filed. ... | Jun 01 2026 | Petition DENIED.
    Open Supreme Court of the United States (opens in a new tab)

  • EPA enforcement example - unauthorized farm dam (Nebraska, 2010): a Wayne County, Nebraska landowner and a Madison, Nebraska excavation contractor agreed to pay a $30,000 civil penalty to settle allegations that they used earth-moving equipment to build a dam on a tributary of Spring Branch Creek without a Corps permit. Per the administrative consent agreement and final order, the dam impacted more than a quarter-mile stretch of the creek and at least 1.13 acres of adjacent wetland; EPA had ordered the landowner in April 2010 to remove the dam and fully restore the stream and wetlands. The release stated that under the Clean Water Act landowners are required to consult with the Corps and obtain proper permits before earth-moving projects that cause damming or adverse impacts to water bodies (a 2010 press statement; it does not address the section 404(f) exemptions or the later Sackett limits on which waters are covered).

    EPA Region 7 news release, Aug. 30, 2010 (administrative consent agreement and final order) [83]
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    A Wayne County, Neb., landowner and a Madison, Neb., excavation contractor will pay a $30,000 civil penalty ... to construct a dam on a tributary of Spring Branch Creek without first obtaining a necessary permit from the U.S. Army Corps of Engineers. ... Construction of the dam impacted more than a quarter-mile stretch of the creek, and at least 1.13 acres of adjacent wetland ... landowners are required to consult with the Corps of Engineers and obtain proper permits before engaging in earth-moving projects that cause damming ... ordered by EPA in April 2010 to remove the dam and fully restore
    Open U.S. Environmental Protection Agency (archived news release) (opens in a new tab)

  • EPA enforcement example - dam construction fill (Missouri, 2015): EPA Region 7 settled with a Jefferson County, Missouri property owner after a March 2014 Corps inspection documented that he, or others working on his behalf, used earth-moving equipment to discharge fill into an unnamed tributary of Belews Creek as part of work associated with building a dam, without a section 404 permit. He agreed to pay a $30,000 penalty and fully restore the impacted portion of the tributary; the Corps had referred the case to EPA.

    EPA Region 7 news release, Apr. 2, 2015 (consent agreement) [84]
    Show the source text
    As part of the settlement, Greg Schellert has agreed to pay a penalty of $30,000 and fully restore the impacted portion of the tributary. A U.S. Army Corps of Engineers (USACE) inspection in March 2014 documented that Schellert violated the Clean Water Act (CWA) when he, or others working on his behalf, used earth-moving equipment to discharge fill material into the tributary as a part of work associated with the construction of a dam. ... The work was performed without a permit issued pursuant to Section 404 of the CWA. The USACE referred the case to EPA after discovering the violations.
    Open U.S. Environmental Protection Agency (archived news release) (opens in a new tab)

  • StatusValentine was stayed on May 15, 2025: the parties asserted in their joint motion that a stay would allow EPA and the Department of the Army to gather public input and consider issuing new guidance on adjacent wetlands after Sackett, and the court stayed the case, pending further orders, 'to give the agencies an opportunity to provide administrative guidance concerning key issues in the case' and cancelled the nonfinal pretrial conference set for June 11, 2025. Later orders (Sept. 8, 2025; Jan. 12-13, 2026; June 15, 2026) continued the stay (see claim fed-gap2-recent-cases-039). Its status after mid-September 2026 is not confirmed: the parties jointly moved on Sept. 14, 2026 to continue the stay, and the docket shows an order on a motion to stay entered Sept. 15, 2026 whose text has not been read (see claims fed-gap2-recent-cases-004 and -005).

    United States v. Valentine, No. 5:22-CV-512-M-KS (E.D.N.C. May 15, 2025), Order Staying Case (DE 91) at 1-2 [42]
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    The parties assert that a stay will allow the U.S. Environmental Protection Agency and the U.S. Department of the Army to gather public input and consider issuing new guidance for implementation of the Clean Water Act with respect to adjacent wetlands in light of the Supreme Court's decision in Sackett v. EPA, 598 U.S. 651 (2023). ... Pending further orders of the court, the action is STAYED to give the agencies an opportunity to provide administrative guidance concerning key issues in the case. ... the clerk is directed to cancel the nonfinal pretrial conference scheduled for June 11, 2025
    Open U.S. District Court for the Eastern District of North Carolina, via CourtListener RECAP (opens in a new tab)

  • StatusBecause of the stay, a January 2026 order in Valentine vacated the final pretrial conference set for Feb. 24, 2026 and the jury trial set to begin Mar. 10, 2026. The docket shows a further order on a motion to stay entered Sept. 15, 2026.

    United States v. Valentine, No. 5:22-cv-00512 (E.D.N.C.), docket entries 96 (Jan. 13-14, 2026) and 100 (Sept. 15, 2026) [41]
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    Sep 15, 2026 Motion Referred 100 Sep 15, 2026 Main Document Order on Motion to Stay ... In light of the order staying the proceedings of this action issued by the Honorable Kimberly A. Swank on January 13, 2026, the Final Pretrial Conference currently scheduled before this court on February 24, 2026, and the jury trial scheduled to commence on March 10, 2026, are VACATED.
    Open CourtListener / Free Law Project (RECAP) (opens in a new tab)

  • StatusIn a joint status report filed Sept. 14, 2026, the United States and the Valentine defendants described the case as a Clean Water Act and Rivers and Harbors Act enforcement case filed in December 2022, noted the agencies' Nov. 17, 2025 proposed WOTUS rule and their Sept. 4, 2026 supplemental notice of proposed rulemaking, and jointly asked the court to keep the case stayed for an additional 120 days pending a new rule.

    United States v. Valentine, No. 5:22-CV-512-M-KS (E.D.N.C.), Joint Status Report and Joint Motion to Continue the Stay (DE 99, Sept. 14, 2026) at 1-3 [43]
    Show the source text
    The United States filed this Clean Water Act and Rivers and Harbors Act enforcement case in December 2022. ... the Agencies issued a proposed rule on November 17, 2025, to revise their regulations regarding the scope of waters protected by the Clean Water Act. ... On September 4, 2026, the Agencies announced a Supplemental Notice of Proposed Rulemaking for the Updated Definition of "Waters of the United States." ... the Parties jointly request that the Court enter the proposed order staying this action for an additional 120 days.
    Open U.S. Department of Justice and defendants (court filing), via CourtListener RECAP (opens in a new tab)

  • StatusValentine docket (RECAP copy of the PACER docket), later stay orders: on Sept. 8, 2025 the court granted the parties' joint motion to stay (DE 92) and ordered that, pending further orders of the court, the action is stayed to give the agencies an opportunity to provide administrative guidance concerning key issues in the case (DE 93). An order signed Jan. 12, 2026 and entered Jan. 13, 2026 granted a further motion to stay (DE 95). On June 15, 2026 the court granted a motion to stay the case for an additional 90 days, pending any further order of the court (DE 98).

    United States v. Valentine, No. 5:22-cv-00512 (E.D.N.C.), docket entries 93 (Sept. 8, 2025), 95 (Jan. 12-13, 2026) and 98 (June 15, 2026) [41]
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    Last Updated: Sept. 15, 2026, 4:23 p.m. ... 98 Jun 15, 2026 ORDER granting 97 Motion to Stay this case for an additional 90 days. Pending any further order of the court, the action is STAYED ... 95 Jan 13, 2026 ORDER granting 94 Motion to Stay. ... Signed by US Magistrate Judge Kimberly A. Swank on 1/12/2026. (Chapman, R) (Entered: 01/13/2026) ... 93 Sep 8, 2025 ORDER - The court GRANTS the Parties' joint motion to stay DE 92 . Pending further orders of the court, the action is STAYED to give the agencies an opportunity to provide administrative guidance concerning key issues in the case.
    Open CourtListener / Free Law Project (RECAP) (opens in a new tab)

  • StatusSharfi subsequent history: judgment was entered for NeshaFarm, Inc. and Benjamin K. Sharfi against the United States on Dec. 30, 2024 and the case was closed. The RECAP copy of the district docket, last updated Apr. 8, 2025, lists Dec. 30, 2024 as the date of the last known filing (no notice of appeal appears).

    Docket, United States v. Sharfi, No. 2:21-cv-14205 (S.D. Fla.), entry 193 (Judgment, Dec. 30, 2024) [85]
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    Last Updated: April 8, 2025, 11:46 p.m. ... Date Terminated: Dec. 30, 2024 Date of Last Known Filing: Dec. 30, 2024 ... JUDGMENT in favor of NeshaFarm, Inc., Benjamin K. Sharfi against United States Of America. This case is CLOSED.
    Open CourtListener (Free Law Project) - repository copy (opens in a new tab)

  • StatusRagsdale subsequent history: the RECAP copy of the docket (last updated July 8, 2025) shows the judgment entered June 11, 2024, the case terminated June 11, 2024, and no later filing.

    Docket, Ragsdale v. JLM Construction Services, Inc., No. 1:21-cv-01167 (W.D. Tex.), entries 78-79 [86]
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    Last Updated: July 8, 2025, 10:19 p.m. ... Date Terminated: June 11, 2024 Date of Last Known Filing: June 11, 2024 ... 79 Jun 11, 2024 Main Document Judgment
    Open CourtListener / Free Law Project (RECAP) (opens in a new tab)

  • StatusGlynn subsequent history: the Eleventh Circuit denied rehearing on Aug. 29, 2025, and the Supreme Court denied certiorari on Mar. 23, 2026 (No. 25-908), with Justice Gorsuch not participating.

    Supreme Court docket No. 25-908, The Glynn Environmental Coalition, Inc. v. Sea Island Acquisition, LLC (order of Mar. 23, 2026) [87]
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    Decision Date: | July 29, 2025 | Rehearing Denied: | August 29, 2025 ... Mar 23 2026 | Petition DENIED. Justice Gorsuch took no part in the consideration or decision of this petition.
    Open Supreme Court of the United States (supremecourt.gov) (opens in a new tab)

  • StatusBarnstable subsequent history: after the June 2025 ruling dismissed 4 of the 13 federal counts, the remaining 9 counts were allowed to proceed; on Feb. 19, 2026 the court allowed the plaintiff to amend to add four state-law counts. (On July 31, 2025 the court had denied the town's motion to certify an interlocutory appeal.)

    Conservation Law Foundation, Inc. v. Town of Barnstable, No. 24-cv-11886-ADB (D. Mass. Feb. 19, 2026), ECF No. 84 at 1 [88]
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    The operative complaint originally asserted 13 counts for violations of the federal Clean Water Act ("CWA") ... the Court later dismissed 4 of those counts, but allowed the remaining 9 counts to proceed, [ECF No. 22]. Now CLF moves to amend its complaint to add four state-law counts
    Open U.S. District Court for the District of Massachusetts, via govinfo (USCOURTS) (opens in a new tab)

  • StatusOn July 31, 2025 the Barnstable court denied the town's motion to amend the judgment to stay proceedings and certify an interlocutory appeal of the June 2025 ruling.

    Conservation Law Foundation, Inc. v. Town of Barnstable, No. 24-cv-11886-ADB (D. Mass. July 31, 2025), ECF No. 39 at 1 [89]
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    Currently pending before the Court is Defendant's motion to amend the judgment to stay the proceedings and certify interlocutory appeal. See [ECF No. 29]. For the reasons set forth below, Defendant's motion is DENIED.
    Open U.S. District Court for the District of Massachusetts, via govinfo (USCOURTS) (opens in a new tab)

  • StatusAndrews subsequent history: the Second Circuit decided the appeal (No. 24-1479) on Mar. 19, 2025 and denied rehearing on July 24, 2025; the Supreme Court denied certiorari on June 1, 2026 (No. 25-668).

    Supreme Court docket No. 25-668, Jeffrey Andrews v. United States (order of June 1, 2026) [27]
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    Case Numbers: | (24-1479) | Decision Date: | March 19, 2025 | Rehearing Denied: | July 24, 2025 ... Jun 01 2026 | Petition DENIED.
    Open Supreme Court of the United States (opens in a new tab)

  • StatusAce Black Ranches subsequent history: the United States filed an amended complaint on Sept. 27, 2024 and the ranch moved to dismiss it on Nov. 1, 2024; since March 2025 the case has been held in abeyance at the government's request, most recently through Feb. 16, 2027 (order of Aug. 18, 2026), after which the parties must file a status report.

    Docket, United States v. Ace Black Ranches, LLP, No. 1:24-cv-00113 (D. Idaho), entries 16, 19, 26, 42 [45]
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    All proceedings are HELD IN ABEYANCE through and including February 16, 2027. Upon conclusion of the stay, the Parties shall file a status report and proposal for further proceedings. ... ORDER GRANTING UNOPPOSED MOTION FOR 60-DAY ABEYANCE ... MOTION to Dismiss USA's First Amended Complaint ... AMENDED COMPLAINT against Ace Black Ranches, LLP, filed by United States of America.
    Open CourtListener / Free Law Project (RECAP) (opens in a new tab)

  • StatusSweeney subsequent history: on July 10, 2025 (filed July 11, 2025) the court granted Sweeney's motion to stay enforcement of the restoration injunction while the John Muir Land Trust restores Point Buckler Island, and denied his motion to alter the injunction. At the government's request, the stay order preserves the United States' right to move for a civil penalty assessment proceeding if the court lifts the stay.

    United States v. Sweeney, No. 2:17-cv-00112-KJM-JDP (E.D. Cal. July 10, 2025, filed July 11, 2025), ECF No. 323 at 1, 6-7 [31]
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    the court grants the stay, ... denies Sweeney's motion to alter the injunction ... equitable power to stay the enforcement of the injunction while the Trust restores Point Buckler ... (5) The United States retains all rights it may have under the Remedy Order at 27:6 to ... to file a motion in this case at the appropriate time to initiate a ... civil penalty assessment proceeding, if the court lifts the stay imposed in this order.
    Open U.S. District Court for the Eastern District of California, via govinfo (USCOURTS) (opens in a new tab)

  • StatusCottonwood subsequent history: a Jan. 29, 2026 order ruled that the East Golf Course tributary on the Yellowstone Club golf course is a navigable water under the Clean Water Act and left to the jury whether the Middle Golf Course tributary is one; after a jury trial (Feb. 3-5, 2026), the clerk entered judgment for Yellowstone Mountain Club on Feb. 6, 2026, and the plaintiff appealed (Ninth Circuit No. 26-779).

    Docket, Cottonwood Environmental Law Center v. Yellowstone Mountain Club LLC, No. 2:23-cv-00026 (D. Mont.), entries dated Jan. 29, 2026 to Feb. 9, 2026 [29]
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    USCA Case Number 26-779 ... NOTICE OF APPEAL as to 183 Judgment by Cottonwood Environmental Law Center. ... CLERK'S JUDGMENT in favor of Yellowstone Mountain Club LLC against Cottonwood Environmental Law Center. ... REDACTED JURY VERDICT ... 2. The East Golf Course tributary located on the Yellowstone Clubs golf course is a navigable water within the meaning of the Federal Clean Water Act. 3. The jury must decide whether the Middle Golf Course tributary is a navigable water within the meaning of the Federal Clean Water Act.
    Open CourtListener / Free Law Project (RECAP) (opens in a new tab)

  • StatusCraig v. U.S. Army Corps of Engineers (D.S.C.), the 2014 farm pond exemption ruling: the RECAP copy of the docket records the case as filed June 27, 2013 and terminated Oct. 29, 2014, with Oct. 29, 2014 (the order denying plaintiffs' summary judgment motion and granting defendants' motions) as the date of the last known filing. No notice of appeal or appellate decision appears in that record.

    Docket, Craig v. United States Army Corps of Engineers, No. 0:13-cv-01767 (D.S.C.), entry 57 (Oct. 29, 2014) [90]
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    Date Filed: June 27, 2013 Date Terminated: Oct. 29, 2014 Date of Last Known Filing: Oct. 29, 2014 ... ORDER denying 40 Motion for Summary Judgment; granting 42 Motion for Summary Judgment; granting 44 Motion for Summary Judgment. Signed by Honorable Joseph F. Anderson, Jr. on 10/29/2014.
    Open CourtListener / Free Law Project (RECAP) (opens in a new tab)

Open questions to ask the agency

Not confirmed from a primary source

We could not confirm the following from an official source. Ask the agency listed before relying on any of it.

  • A federal court of appeals decision that squarely construes the "construction or maintenance of farm or stock ponds" clause of section 404(f)(1)(C), and any decision since Sackett (May 25, 2023) applying the farm or stock pond exemption, the dam-maintenance exemption or the recapture provision. None was found; Akers quotes the pond clause but decides an irrigation-ditch issue, and Craig is a district court ruling. — ask: Corps district regulatory office; U.S. Department of Justice, Environment and Natural Resources Division
  • Whether Craig v. U.S. Army Corps of Engineers (D.S.C. Oct. 29, 2014) was appealed (the partial RECAP docket copy shows the case terminated Oct. 29, 2014 and no notice of appeal, which does not prove none was filed), and the date and author of the EPA guidance letter on recapture of farm ponds that the order quotes (ECF No. 43-2); the letter is known only through the order. — ask: Clerk, U.S. District Court for the District of South Carolina or U.S. Court of Appeals for the Fourth Circuit (PACER); EPA regional wetlands office
  • Any federal court of appeals decision (2023 to 2026) applying Sackett's continuous-surface-connection test to a pond, stock pond, farm pond or impoundment specifically. The appellate decisions found concern wetlands, ditches and a creek. — ask: EPA Office of Water (WOTUS) or the local Corps district; U.S. Department of Justice, Environment and Natural Resources Division
  • Later history of the post-Sackett cases: whether Sharfi (judgment Dec. 30, 2024) or Ragsdale (judgment June 11, 2024) was appealed (the RECAP docket copies show no notice of appeal or later filing, which does not prove none was filed); the text of the Valentine order of Sept. 27, 2024 and of the Sept. 15, 2026 order on a motion to stay (DE 100), and any merits ruling; the ruling on the ranch's motion to dismiss the amended complaint in Ace Black Ranches (held in abeyance); the remand in Corona Clay; the basis of the February 2026 defense verdict in Cottonwood and its Ninth Circuit appeal (No. 26-779); and later rulings in Sunnyvale (after Mar. 31, 2026) and Sweeney (after July 2025). — ask: The clerk of each court (PACER); U.S. Department of Justice, Environment and Natural Resources Division
  • Later history of the enforcement and time-limit cases: how United States v. Robertson was resolved after the Supreme Court's 2019 remand; any rehearing or certiorari in Save the Cutoff (5th Cir. 2025); later history of Benham (10th Cir. 2018); the remedies phase of Mlaskoch (D. Minn.); and any appeal in United States v. Smith (S.D. Ala. 2014). — ask: Ninth, Fifth and Tenth Circuit clerks and the district court clerks (PACER)
  • Appellate decisions on whether 28 U.S.C. 2462 limits government restoration orders in section 404 cases after Kokesh v. SEC (2017), and whether and how courts apply 2462 or another time limit to citizen-suit penalties over section 404 fill. — ask: U.S. Department of Justice, Environment and Natural Resources Division
  • Whether any court has re-examined EPA's Water Transfers Rule (40 CFR 122.3(i)) since Loper Bright (2024) ended Chevron deference. — ask: EPA Office of Wastewater Management, Water Permits Division; EPA Office of General Counsel
  • The Ninth Circuit's disposition of the Northern Plains Resource Council appeals over Nationwide Permit 12 (Nos. 20-35412, 20-35414, 20-35415) and the outcome of the federal government's 2022 motion to vacate the district court's April 15 and May 11, 2020 decisions. Until this is confirmed, the current status of the district court ruling is unknown. — ask: Corps Headquarters Regulatory Program; Ninth Circuit clerk (ca9.uscourts.gov)
  • Official court copies of Akers (9th Cir. 1986), Brace (3d Cir. 1994) and the Ninth Circuit's Borden Ranch opinion (2001), which were read from a repository; and the texts of Gorsuch (D.C. Cir. 1982), Consumers Power (6th Cir. 1988), the 2014 Southern District of New York Water Transfers Rule decision and NRDC v. Department of the Interior (S.D.N.Y. 2020), which are known only as later courts or FWS described them. — ask: The clerks of the relevant courts, or a law library
  • The Vermillion Creek (Colorado) ranch settlement, located only as a Justice Department press release in search results. — ask: U.S. Department of Justice, Environment and Natural Resources Division

Sources

Every statement above links to one of these official sources. Expand “Show the source text” under any statement to read the exact passage it rests on.

  1. Sackett v. Environmental Protection Agency, No. 21-454 (slip opinion, May 25, 2023) (opens in a new tab) — Supreme Court of the United States, document date 2023-05-25, retrieved September 28, 2026
  2. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (U.S. Reports) (opens in a new tab) — U.S. Government Publishing Office (govinfo), United States Reports, document date 2001-01-09, retrieved September 28, 2026
  3. Rapanos v. United States, 547 U.S. 715 (2006) (U.S. Reports) (opens in a new tab) — U.S. Government Publishing Office (govinfo), United States Reports, document date 2006-06-19, retrieved September 28, 2026
  4. United States v. Akers, 785 F.2d 814 (9th Cir. 1986) (opens in a new tab) — CourtListener (Free Law Project) - repository copy, document date 1986-03-26, retrieved September 28, 2026
  5. United States v. Brace, 41 F.3d 117 (3d Cir. 1994) (opens in a new tab) — CourtListener (Free Law Project) - repository copy, document date 1994, retrieved September 28, 2026
  6. Greenfield Mills, Inc. v. Macklin, No. 02-1863 (7th Cir. Mar. 19, 2004) (slip opinion) (opens in a new tab) — U.S. Court of Appeals for the Seventh Circuit, document date 2004-03-19, retrieved September 28, 2026
  7. Craig v. U.S. Army Corps of Engineers, C/A No. 0:13-cv-01767-JFA (D.S.C. Oct. 29, 2014) (Order, ECF No. 57) (opens in a new tab) — Justia (repository copy of court PDF), document date 2014-10-29, retrieved September 28, 2026
  8. Sackett v. EPA, 566 U.S. 120 (2012) (U.S. Reports) (opens in a new tab) — U.S. Government Publishing Office (govinfo), United States Reports, document date 2012-03-21, retrieved September 28, 2026
  9. U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590 (2016) (U.S. Reports) (opens in a new tab) — U.S. Government Publishing Office (govinfo), United States Reports, document date 2016-05-31, retrieved September 28, 2026
  10. United States Reports, Vol. 578 (October Term 2015), bound volume; U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590 (2016) (opens in a new tab) — Supreme Court of the United States, document date 2016-05-31 (decision), retrieved September 28, 2026
  11. United States v. Andrews, No. 3:20-CV-1300 (JCH) (D. Conn. Mar. 27, 2024), Ruling and Order on Remedy and Motion to Dismiss (Doc. 256) (opens in a new tab) — U.S. District Court for the District of Connecticut, via govinfo (USCOURTS), document date 2024-03-27, retrieved September 28, 2026
  12. United States v. Mlaskoch, Civil No. 10-2669 (JRT/LIB) (D. Minn. Mar. 31, 2014), Doc. 59 (Memorandum Opinion and Order granting partial summary judgment) (opens in a new tab) — U.S. District Court for the District of Minnesota (govinfo USCOURTS), document date 2014-03-31, retrieved September 28, 2026
  13. United States v. Rutherford Oil Corp., No. G-08-0231 (S.D. Tex. Aug. 31, 2010), Doc. 126 (Memorandum and Opinion) (opens in a new tab) — U.S. District Court for the Southern District of Texas (govinfo USCOURTS), document date 2010-08-31, retrieved September 28, 2026
  14. Loper Bright Enterprises v. Raimondo, No. 22-451 (slip opinion, June 28, 2024) (opens in a new tab) — Supreme Court of the United States, document date 2024-06-28, retrieved September 28, 2026
  15. County of Maui v. Hawaii Wildlife Fund, No. 18-260 (slip opinion, Apr. 23, 2020) (opens in a new tab) — Supreme Court of the United States, document date 2020-04-23, retrieved September 28, 2026
  16. United States v. Brace, No. 20-1892 (3d Cir. June 11, 2021) (precedential opinion) (opens in a new tab) — U.S. Court of Appeals for the Third Circuit, document date 2021-06-11, retrieved September 28, 2026
  17. Borden Ranch Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001) (opens in a new tab) — CourtListener (Free Law Project) - repository copy, document date 2001-08-15, retrieved September 28, 2026
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This is not legal advice. It is a plain-English summary of official sources, checked September 28, 2026. Laws, permits and agency practice change, and how they apply depends on your exact site. Confirm with the agencies named here, and with a licensed professional engineer for any dam, before you build.

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