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Clean Water Act Violation Alleged


The United States attorney’s office has filed a civil lawsuit alleging violations of the Clean Water Act of 1972.  The defendant is a resident of the Shinnecock Indian nation, a federally recognized tribe located at the eastern end of Long Island, New York.


That law prohibits the discharge of pollutants in US waters and their tributaries.  The Act is administered by the Environmental Protection Agency, a federal subdivision that works to ensure clean air, land and water, plus it reduce environmental risks and protects the environment.  An exception to the Act exists if a permit is obtained from the US Army Corp of Engineers, which is the nation’s environmental engineer and maintains the nation’s harbors and wetlands.  The defendant, one Gordon  Smith, does not have such a permit and stated he has no intention of obtaining one.


Smith is accused of dumping construction and demolition debris into Shinnecock wetlands. Indeed, he invites construction companies to dump their waste materials on his property.  The discarded materials include bricks, concrete, sod and rebar (steel bar or mesh of steel wires used to reinforce concrete). The rubble has built up a 200 foot long barrier, about four feet high, along his shoreline. He created the obstruction as a means to prevent flooding on his property. 


The lawsuit seeks a court order requiring Smith to clean up the site at his expense and under the direction of the Environmental Protection Agency.  In addition, the defendant could face penalties of up to $51,500 each day the violation persists, equal to about $19 million per year.  The government also seeks an injunction (a court order requiring a party to discontinue some specified action) requiring Smith to cease dumping pollutants into the wetlands.


Smith’s primary defense is sovereign immunity meaning the ability of a nation to regulate its internal affairs without foreign interference.  Stated differently Smith claims he is not bound by US law since his property is within the Native American reservation.  Smith claims his property is located on a Native American reservation. And therefore he is not bound by US law.   With a few exceptions, Indian tribes alone determine the law that applies on their lands.   Said Smith, “We are a sovereign nation.  I have my tribal rights.”  However, the site where Smith is dumping is a tidal embayment of the Atlantic Ocean and constitutes waters of the US. 


An inspection of Smith’s by the Environmental Protection Agency was triggered by a request from the Shinnecock Tribal Council, the governing body of the Tribe.  At the time of the inspection, Smith was issued a cease and desist order which is an official order from a court or government agency directing a person or entity to immediately stop doing some specified action.  Smith has disregarded it.  Thus the lawsuit was commenced.


The rationale for the Clean Water Act is to preserve wetlands which serve as wildlife habitat, protect the shoreline from erosion, and improve water quality.


The Clean Water Act’s jurisdiction includes “navigable waters” which are defined as “waters of the US.” 

Most states have an anti-dumping law that, like the Clean Water Act, bars dumping of trash or unwanted items that pollute the water or otherwise threaten human health or the environment. 



How would you assess defendant’s argument that he has the right to pollute US waters because his land is located on an Indian reservation that enjoys sovereign immunity?