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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

AARON WARD, et al.,

 Plaintiffs,

v.

MARK J. STUCKE, et al.,

 Defendants.

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Case No. 3:18-cv-263 

Judge Thomas M. Rose

______________________________________________________________________________

ENTRY AND ORDER GRANTING, IN PART, DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT (DOC. NO. 41); GRANTING SUMMARY 

JUDGMENT FOR DEFENDANTS ON COUNT 1; DECLINING TO EXERCISE 

SUPPLEMENTAL JURISDICTION OVER COUNTS 2 & 3 AND, THEREFORE, 

DISMISSING THE REMAINING CLAIMS WITHOUT PREJUDICE TO 

REFILING IN STATE COURT; AND TERMINATING THE CASE

______________________________________________________________________________

This case involves a citizen’s suit under the Clean Water Act, 33 U.S.C. § 1251 - 1388 (the 

“CWA”), pursuant to 33 U.S.C. § 1365. Plaintiffs Aaron Ward and Betsy Ward (the “Wards” or 

“Plaintiffs”) bring three claims against their neighbors, Defendants Mark J. Stucke and Mary Ann 

E. Stucke (the “Stuckes” or “Defendants”): (1) unauthorized discharges of dredged and/or fill 

materials, in violation of 33 U.S.C. § 1311 and 33 U.S.C. § 1344 (i.e., Sections 301 and 404 of the 

CWA); (2) private nuisance; and (3) trespass. (Doc. No. 13.) 

Pending before the Court is Defendants’ Motion for Summary Judgment (Doc. No. 41) (the 

“Motion”). In the Motion, the Stuckes move for an order granting summary judgment on all claims 

against them, pursuant to Federal Rule of Civil Procedure 56. In response, the Wards argue that

the Court must fully deny the Motion because genuine issues of material fact remain on all claims. 

As explained below, the Court finds that the Stuckes are entitled to summary judgment on the 

CWA claim (Count 1) because the claim is only for past violations. Gwaltney of Smithfield, Ltd. 

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v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987) (the 

CWA “does not permit citizen suits for wholly past violations”). The Wards’ remedy, if any, is 

not grounded in the CWA in federal court. The Court declines to exercise supplemental 

jurisdiction over the remaining claims.

Therefore, the Court GRANTS IN PART the Motion; grants summary judgment to the 

Stuckes on Count 1 of the First Amended Complaint (the “Complaint”); declines to exercise 

supplemental jurisdiction over Counts 2 and 3 and, therefore, dismisses the remaining claims 

without prejudice to refiling in state court; and orders the Clerk of Court to terminate this action 

from the docket of the United States District Court for the Southern District of Ohio.

I. BACKGROUND 1

A. The Properties, Surrounding Waters, and Earth-Moving Activities

The Stuckes’ property consists of approximately 191 acres of field used primarily for 

agricultural purposes. (Doc. No. 13 at PageID 122; see also Doc. No. 41-1 (Aff. of Mark Stucke) 

at PageID 329.) The Stuckes’ property is west of, and adjacent to, the Wards’ property and 

residence in Darke County, Ohio. (Doc. No. 13 at PageID 122, 125; Doc. No. 41 at PageID 309.) 

There is a stream channel on the east end of the Stuckes’ property. (Doc. No. 43-4 (Aff. of Pls.’ 

expert) at PageID 508.) That channel is now the start of the headwaters of Boyd Creek. (Id. at 

PageID 508-09.) The channel and the rest of Boyd Creek run for approximately 3.3 miles before 

emptying into the Stillwater River, which runs into the Great Miami River, which runs into the 

Ohio River. (Id. at PageID 510.) 

Before the year 2000, the prior owners of the Stucke property installed two grassed 

1 For purposes of resolving the Motion, the recitation in the “Background” section includes undisputed facts and 

otherwise assumes the evidence of the non-moving party as true and draws all reasonable inferences in the nonmoving 

party’s favor, as is appropriate at this stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 

L. Ed. 2d 202 (1986); Tolan v. Cotton, 572 U.S. 650, 660, 134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014).

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waterway channels on the property. (Doc. No. 43-4 at PageID 508; Doc. No. 41-1 at PageID 329.) 

The channels collect and divert surface runoff to the stream channel on the east end of the Stucke 

property. (Id.) In 1984, 2006, and 2011, the Stuckes or their predecessors in ownership installed 

drainage tiles on the property. (Doc. No. 43-7 at PageID 655-56.) In the fall of 2014, the Stuckes 

engaged in excavation of their property and installed field drainage tiles throughout the property, 

diverting water to Boyd Creek.2 (Doc. No. 43-4 at PageID 509.) There is no evidence that either 

the Stuckes or their predecessors in ownership obtained a CWA section 404 permit. 

B. Flooding

On or about July 13, 2015, a heavy rain event occurred and the stormwater, groundwater, 

and surface water discharges from the Stucke property overflowed and flooded the stream channel,

in turn flooding the Ward property and other nearby properties. (Doc. No. 13 at PageID 130; see 

also Doc. No. 41-1 at PageID 329.) The Wards’ home was destroyed, along with the personal 

belongings in their home and on their property. (Doc. No. 13 at PageID 130.) Prior to July 13, 

2015, the Wards had never experienced flooding or damages related to flooding in their home or 

on their property since they moved there in 2004. (Id. at PageID 125.)

As a result of the above-referenced excavation activities and installation of field drainage 

tiles, the stream channel abutting the Wards’ property has flooded and continues to experience 

damages related to flooding, causing severe damage to the Wards’ home and property. (Doc. No. 

43-4 at PageID 509.) The Wards are experiencing flood events near their property on a more 

frequent basis. (Doc. No. 43-6 (Pls.’ expert’s rebuttal report).)

2 The Stuckes assert that installation of drainage tiles never took place in 2014. (See Doc. No. 41-1 at PageID 329 

(Mark Stucke stating that, “[i]n 2006 and 2011 I placed 4 inch and 6 inch perforated plastic drain piping in my farm 

land”). As shown below, the outcome and analysis of this order is unaffected by whether installation of drainage tiles 

took place in 2014 or not. It is immaterial, and the Court will assume the truth of the Wards’ evidence.

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C. Notice, Complaint, and Current Motion

On February 14, 2017, prior to commencement of this lawsuit, the Wards gave notice of 

the citizen suit violations alleged in the Complaint in a letter addressed to the Stuckes, the Army 

Corp of Engineers, the United States Environmental Protection Agency (USEPA), and the Ohio 

Environmental Protection Agency (OEPA). (Doc. No. 13 at PageID 121; Doc. No. 13-1 at PageID 

141-43.) It is undisputed that no governmental agency has taken any enforcement action, even 

after receiving that notice. (See Doc. No. 41 at PageID 313-14; Doc. No. 43-1 at PageID 424.)

After more than 60 days had passed since giving notice, the Wards filed this action on 

August 6, 2018. (Doc. No. 1.) They amended their complaint on November 20, 2018. (Doc. No. 

13.) On June 9, 2021, following the close of discovery, the Stuckes filed the Motion. (Doc. No. 

41.) The Wards filed a Response in opposition to the Motion (Doc. No. 43), and the Stuckes filed 

a Reply to that Response (Doc. No. 44). The Motion is fully briefed and ripe for review. 

II. LEGAL STANDARDS FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be 

rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). 

Alternatively, summary judgment is denied “[i]f there are any genuine factual issues that properly 

can be resolved only by a finder of fact because they may reasonably be resolved in favor of either 

party.” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (quoting Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 250, 106 S Ct. 2505, 91 L. Ed. 2d 202 (1986)).

The party seeking summary judgment has the initial burden of informing the court of the 

basis for its motion and identifying those portions of the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, that it believes demonstrate 

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the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 

S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The burden then shifts to the nonmoving party, who “must 

set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 

(quoting Fed. R. Civ. P. 56(e)). In opposing summary judgment, the nonmoving party cannot rest 

on its pleadings or merely reassert its previous allegations. Id. at 248-49. It also is not sufficient 

to “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. 

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). 

Rule 56 “requires the nonmoving party to go beyond the [unverified] pleadings” and present some 

type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324.

A party’s failure “to properly address another party’s assertion of fact as required by Rule 

56(c)” can result in the court “consider[ing] the fact undisputed for purposes of the motion.” Fed. 

R. Civ. P. 56(e). Additionally, “[a] district court is not ... obligated to wade through and search 

the entire record for some specific facts that might support the nonmoving party’s claim.” 

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). “The court need consider only 

the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

In ruling on a motion for summary judgment, it is not the judge’s function to make 

credibility determinations, “weigh the evidence[,] and determine the truth of the matter, but to 

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 255. In 

determining whether a genuine issue of material fact exists, the court must assume as true the 

evidence of the nonmoving party and draw all reasonable inferences in that party’s favor. Id. at 

255; Matsushita, 475 U.S. at 587; Tolan v. Cotton, 572 U.S. 650, 660, 134 S. Ct. 1861, 188 L. Ed. 

2d 895 (2014). However, the “mere existence of a scintilla of evidence in support of the”

nonmoving party is not sufficient to avoid summary judgment. Anderson, 477 U.S. at 252. “There 

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must be evidence on which the jury could reasonably find for the plaintiff.” Id. The inquiry, then, 

is “whether reasonable jurors could find by a preponderance of the evidence that the” nonmoving 

party is entitled to a verdict. Id. 

III. ANALYSIS

The Stuckes make five arguments for why they are entitled to summary judgment on the 

CWA claim: (1) it does not implicate “navigable waters” or “waters of the United States”; (2) it 

seeks to impose liability only for past violations—which is impermissible for citizen’s suits; (3) it 

is time-barred; (4) it seeks to impose liability on the wrong parties; and (5) the farming exception 

under 33 U.S.C. § 1344(f)(1)(C) applies to preclude the claim. (Doc. No. 41 at PageID 308.) The

Stuckes also make three arguments regarding the state law claims: (1) the Court should decline to 

exercise supplemental jurisdiction; (2) those claims are time-barred; and (3) there is no evidence 

that any act by Defendants caused a nuisance or trespass. (Id. at PageID 323-27.) As shown in 

the analysis below, the Court only addresses the Stuckes’ second argument regarding the CWA 

claim because it is dispositive, and the Court declines to exercise supplemental jurisdiction over 

the remaining state law claims.

A. Violation of the Clean Water Act (Count 1)

The first count in the Complaint is titled: “Unauthorized discharges of dredged and/or fill 

materials.” (Doc. No. 13 at PageID 132.) The Wards bring that claim under the CWA, alleging 

violations of Sections 301 (Effluent limitations) and 404 (Permits for dredged or fill material) of 

that statute. (Id. at PageID 132-33.) 

(1) The CWA’s purpose and claims under 33 U.S.C. § 1311

Congress’ purpose in passing the CWA was to “‘restore and maintain the ... integrity of 

the Nation’s waters.’” Cnty. of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1468, 206 

L. Ed. 2d 640 (2020) (quoting 33 U.S.C. § 1251). The Act “broadly states that (with certain 

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exceptions) ‘the discharge of any pollutant by any person’ without an appropriate permit ‘shall be 

unlawful.’” Id. at 1469 (quoting 33 U.S.C. § 1311, i.e., section 301 of the CWA). Regarding 

permitting, 33 U.S.C. § 1344(a) (i.e., section 404(a) of the CWA) “authorizes the Secretary of the 

Army (through the United States Army Corps of Engineers), or a state with an approved program, 

to issue permits for the discharge of dredged or fill material into the navigable waters at specified 

disposal sites.” U.S. v. Cundiff, 555 F.3d 200, 206 (6th Cir. 2009) (internal quotation marks 

omitted). Here, it is undisputed that the Stuckes did not receive a permit.

The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable 

waters from any point source.” 33 U.S.C. § 1362(12)(A). Thus, a viable CWA claim under 33 

U.S.C. § 1311 requires (1) an addition (2) of a pollutant (3) to navigable waters (4) from a point 

source (5) by a person. 33 U.S.C. §§ 1311(a), 1362(6), 1362(7), 1362(12), 1362(14), 1362(16); 

see also Cundiff, 555 F.3d at 213. The terms “pollutant,” “navigable waters,” and “point source” 

are all specifically defined in the CWA. See 33 U.S.C. §§ 1362(6), 1362(7), 1362(14). The term 

“pollutant” is defined in the Act to include, among other things, “dredged spoil, ... chemical 

wastes, biological materials, radioactive materials, ... rock, sand, ... and agricultural waste 

discharged into water.” 33 U.S.C. § 1362(6); see also Cundiff, 555 F.3d at 213. Additionally, the 

Sixth Circuit in Cundiff held that, when material is excavated from a wetland, its redeposit in the 

same wetland can add a pollutant where none had been before. Cundiff, 555 F.3d at 214 (involving 

the addition of dredged or excavated dirt from a ditch dug by the defendants to defendants’ own 

wetlands). 

(2) CWA citizen’s suit particularities and requirements

The CWA claim here is a citizen’s suit brought pursuant to 33 U.S.C. § 1365(a)(1), which 

in certain circumstances allows a private citizen to commence a civil action against a person “who 

is alleged to be in violation of ... an effluent standard or limitation under” the CWA, such as 33 

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U.S.C. § 1311. 33 U.S.C. § 1365(a). The remedies available to citizen plaintiffs are limited and 

do not include compensatory damages. See 33 U.S.C. § 1365(a), (d); Ailor v. City of Maynardville, 

Tenn., 368 F.3d 587, 590 (6th Cir. 2004) (“[t]he CWA limits the remedies available to citizen 

plaintiffs to injunctive relief, the assessment of civil penalties, and attorney’s fees”; “[n]o 

compensatory damages are authorized under the CWA”); see also Day, LLC v. Plantation Pipe 

Line Co., 315 F. Supp. 3d 1219, 1238 (N.D. Ala. 2018) (“[t]he inescapable prospective orientation 

of the phrase ‘in violation’ is mirrored by the relief the CWA affords plaintiffs suing under the 

citizen-suit provision, which does not give citizen-plaintiffs the right to damages”) (internal 

quotation marks omitted). “Citizen suits are merely intended to supplement, not supplant, 

enforcement by state and federal government agencies.” Ailor, 368 F.3d at 590. Except in limited 

circumstances not relevant to this case, the private citizen is required to provide notice of the 

alleged violation to the alleged violator, as well as to the appropriate federal and state agencies, at 

least sixty days prior to commencing the citizen’s suit. 33 U.S.C. § 1365(b). “The purpose of the 

notice provision is to give the [appropriate federal and state agencies] a chance to initiate action 

that might preclude the need for a citizen suit.” Ohio Pub. Int. Rsch. Grp. v. Laidlaw Env’t Servs., 

Inc., 963 F. Supp. 635, 639 (S.D. Ohio 1996).

Significantly, based on the language of the Act, the CWA “does not permit citizen suits for 

wholly past violations.” Gwaltney, 484 U.S. at 64. “Rather, there must be ‘an ongoing violation.’” 

Frilling v. Honda of Am. Mfg., Inc., 101 F. Supp. 2d 841, 845 (S.D. Ohio 1998) (quoting Gwaltney, 

484 U.S. at 59). “An ongoing violation is one where [there] is either [a] continuous or intermittent 

violation—that is, a reasonable likelihood that a past polluter will continue to pollute in the future.” 

Day, 315 F. Supp. 3d at 1239 (internal quotation marks omitted). Thus, “citizens must prove ‘a 

state of either continuous or intermittent violation’ to prevail.” Tamaska v. City of Bluff City, 

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Tenn., 26 F. App’x 482, 485 (6th Cir. 2002) (quoting Gwaltney, 484 U.S. at 57); see also Gwaltney, 

484 U.S. at 57-59 (“the harm sought to be addressed by the citizen suit lies in the present or the 

future, not in the past”). Citizens who bring CWA citizen suits only for past violations lack 

standing. Ailor, 368 F.3d at 596-97 (in the context of a CWA citizen’s suit, “[s]tanding concerns 

only whether a plaintiff has a viable claim that a defendant’s unlawful conduct was occurring at 

the time the complaint was filed”) (internal quotation marks omitted). 

“A citizen may establish that a violation is ongoing either 1) by proving violations that 

continue on or after the date the complaint is filed, or 2) by adducing evidence from which a 

reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic 

violations.” Tamaska, 26 F. App’x at 485 (internal quotation marks omitted). The question at the 

summary judgment stage is if there are any genuine issues of material fact regarding whether the 

defendant’s alleged violations were continuing, or there was a continuing likelihood of their 

recurrence, at the time the complaint was filed. Allen Cnty. Citizens for the Environment, Inc. v. 

BP Oil Co., No. 91-3698, 966 F.2d 1451 (table), 1992 U.S. App. LEXIS 14906, 1992 WL 138410, 

at *1-2 (6th Cir. June 18, 1992) (affirming district court’s determination “that the plaintiffs had 

failed to raise a genuine issue of material fact as to whether BP’s alleged violations of its NPDES 

permit were continuing at the time the complaint was filed or that there existed a continuing 

likelihood of their recurrence at that time”; explaining that there was no “genuine issue of material 

fact as to whether BP was engaged in ‘ongoing’ violations,” so plaintiffs “lacked standing to 

prosecute a citizen suit under the” CWA).

(3) The Wards’ CWA citizen suit is for “wholly past violations”

Here, the Wards assert that their citizen suit “seeks to address the unpermitted discharge of 

dredged and/or fill materials to waters of the United States, including wetland areas, in violation 

of Sections 301 and 404 of the CWA.” (Doc. No. 43-1 at PageID 428.) More specifically, the 

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Wards claim that “[t]he earth moving activities that occurred during the installation of the two 

drainage channels” and “during the installation of the drainage tile throughout the subject property 

resulted in the placement of dredged material and/or fill material under CWA Section 404, 33 

U.S.C. § 1344.” (Doc. No. 13 at PageID 128-29.) The Wards claim that the dredged material 

and/or fill material constitute a “pollutant” under the CWA. (Id. at PageID 132.) And, the Wards

claim that “[t]he earthmoving equipment used to place the dredged or fill material” constitute 

“point sources” under the CWA. (Id. at PageID 128-29.) 

In the Motion, the Stuckes argue that there is no evidence of any ongoing activity or likely 

future activity which could give rise to a CWA violation. (Doc. No. 41 at PageID 308.) Therefore, 

according to the Stuckes, “Plaintiffs’ CWA claim seeks to impose liability for wholly past 

violations, which is non-cognizable under controlling authority.” (Id.) For purposes of analyzing 

this argument, the Court will assume, without deciding, that the Stuckes’ other arguments in the 

Motion concerning the CWA claim would fail. Thus, the Court will assume that the CWA claim 

implicates “navigable waters,” is not time-barred, does not seek to impose liability on the incorrect 

parties, and is not precluded by the farming exception. 

In response to the “wholly past violations” argument, the Wards argue that “[t]he continued 

presence of dredged or fill material constitutes a continuing violation of the CWA.” (Doc. No. 43-

1 at PageID 426.) They assert that the Stuckes have not remedied their violation of the CWA 

because they (1) did not obtain a permit for their discharges and did not change their drainage and 

discharge of their wetland areas or (2) remove or remediate the dredge and fill material and 

alteration of the headwaters of Boyd Creek. (Id.)

The Stuckes have met their initial burden of showing that the evidence fails to raise a 

genuine issue of material fact regarding whether the alleged violations were ongoing. Frilling, 

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101 F. Supp. 2d at 847 (“[a]t the summary judgment stage, the defendant bears the burden of 

demonstrating that the evidence of record does not raise a genuine issue of material fact as to 

whether [the alleged] violation was ongoing” at the time the action was filed). As shown above, 

the “earth moving activities” that the Wards claim resulted in the placement of dredged or fill 

material in violation of the CWA all took place prior to 2015. (See Doc. No. 13 at PageID 132-

33.) The Wards did not file the Complaint until 2018—long after those activities had ceased. 

The Court then finds that the Wards have not met their burden to set forth specific facts 

showing that there is a genuine issue for trial. There is no evidence presented that the Stuckes 

were conducting any earth-moving activities when the Complaint was filed or since the Complaint 

was filed, and there is no evidence that the Stuckes will be conducting any earth-moving activities 

in the future. More broadly, there simply is no evidence to support that, at the time of filing the 

suit or at any time thereafter, there was an ongoing violation—a continuing “discharge of any 

pollutant” or the continuing likelihood of “a discharge of any pollutant” recurring. 33 U.S.C. § 

1311; Tamaska, 26 F. App’x at 485. Therefore, the Court finds that there is no genuine issue of 

material fact as to whether the Stuckes were engaged in ongoing violations, so the Wards lack 

standing to prosecute a citizen suit under the CWA. Allen Cnty. Citizens for the Environment, 

1992 WL 138410, at *1; Crigler v. Richardson, No. 3:08-0681, 2010 U.S. Dist. LEXIS 55782, 

2010 WL 2265675, at *7 (M.D. Tenn. June 3, 2010) (where the alleged CWA violation took place 

in 2006, nothing indicated that the defendants were engaging in violations after 2006 or that any 

violation was continuous or intermittent, and the complaint was not filed until 2008, the alleged 

violation was “wholly past” and, therefore, the CWA claim was dismissed); Bettis v. Town of 

Ontario, N.Y., 800 F. Supp. 1113, 1119 (W.D.N.Y. 1992) (granting defendants summary judgment 

on the CWA claim where “the undisputed facts demonstrate the absence of any activity which 

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could constitute an ongoing violation”); Day, 315 F. Supp. 3d at 1238 (“[c]essation of conduct, 

e.g., the discharging of a pollutant, under the CWA means that there is no longer a violation”; 

granting motion for summary judgment on the CWA claim where defendants’ pipeline had not 

leaked since two years before the citizen-plaintiff filed the complaint); c.f. Tamaska, 26 F. App’x 

at 486 (“a defendant’s voluntary cessation of a challenged practice after the filing of suit, but before 

entry of judgment, should not deprive the court of the ability to impose civil penalties for violations 

of the Act”) (emphasis added).

The Wards fail to provide any evidence of a “continuous or intermittent violation.” 

Gwaltney, 484 U.S. at 57. The title to the section of the Response brief addressing the “wholly

past violations” issue is: “The Defendants’ Discharges Are Ongoing and Unremediated.” 

Tellingly, that title does not indicate that the alleged discharges are discharges of a pollutant. 

While it certainly may be true that, as a result of installing the grassed waterway channels and 

drainage tiles, there is a continuous or intermittent increase in the volume of water discharged from 

the channel on the end of the Stucke property, water is not a pollutant. 33 U.S.C. § 1362(6) 

(defining “pollutant” for purposes of the CWA); Bettis, 800 F. Supp. at 1119 (“water itself ... is 

not a pollutant” and “[s]imply moving water from one place to another, therefore, does not 

constitute the discharge of a pollutant under the” CWA). Thus, even assuming as true the Wards’ 

allegation that the drainage tiles installed by the Stuckes “significantly increased the rate and 

volume of water discharge and stormwater runoff into” the stream channel (Doc. No. 13 at PageID 

128), there is no evidence to support that there has been a “discharge of any pollutant by any 

person” since the installation of the drainage tiles several years before this lawsuit was filed.

3

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3 Moreover, in response to an interrogatory, the Wards admitted that they have no knowledge of any instance in the 

last ten years of either the Wards themselves or their neighbors removing any silt, dredged or fill material from the 

ditch referred to in the Complaint that runs next to their house. (Doc. No. 41-4 at PageID 406.)

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U.S.C. § 1311. Therefore, the Wards’ “remedy, if any, is not grounded in the Clean Water Act in 

federal court.” Bettis, 800 F. Supp. at 1120.

The Response also implicitly acknowledges that the actions alleged to be CWA violations 

are not ongoing (and it is only the effects of those (alleged) violations that continue) when it states: 

“[I]t is a direct result of the Defendants’ excavation activities and the installation of field drainage 

tiles—the unpermitted discharge of dredge and fill materials—that has led to the stream channel 

abutting the Plaintiffs’ property to flood and continue to experience damages related to flooding” 

(Doc. No. 43-1 at PageID 430 (emphasis added)). See Day, 315 F. Supp. 3d at 1239 (“[w]hile 

some effects remain from the leak [of Defendant’s pipeline], at the time of Plaintiffs’ filing [the 

complaint] there was no point source discharge, nor was there any ‘reasonable likelihood’ of future 

point source discharge from Defendants’ pipeline” so “[t]he violation is therefore not ‘ongoing’”).

The situation here is similar to the one presented in Bettis. In that case, the citizen-plaintiffs 

alleged that the developer of the subdivision in which they lived filled in that area—which had 

allegedly been a wetland—without a permit, in violation of the CWA. Bettis, 800 F. Supp. at 1115. 

However, that activity (i.e., filling in parts of the wetland) ceased years before the complaint was 

filed, and the evidence submitted by the plaintiffs in opposition to defendants’ motion for summary 

judgment did not indicate that any further excavation occurred after that time or provide “any basis 

upon which to believe that such activity is likely to recur in the future.” Id. at 1119. The plaintiffs 

also alleged that a stream had been diverted, causing erosion and flooding that damaged their 

property. Id. The district court explained that, while the evidence showed that the course of the 

stream had been diverted, “there is no indication that any pollutants were discharged either into 

the stream or from the stream into another body of water.” Id. Although the plaintiffs “allege[d] 

that the resulting flooding has damaged their property,” “[s]imply moving water from one place to 

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another ... does not constitute the discharge of a pollutant under the Act.” Id. Therefore, the court 

granted the defendants summary judgment on the CWA claim. Id.

The Court also notes that Cundiff is distinguishable from the present case on the continuing 

violation issue. First and foremost, whether there was an “ongoing violation” or a state of 

“continuous or intermittent violation” was never at issue in that case. Cundiff was not a citizen’s 

suit. And, even after the Army Corp of Engineers had sent the defendant in that case a cease-anddesist letter “specifically prohibiting any further activity involving the placement of excavated or 

fill material into” defendant’s own wetlands without a federal permit, the defendant “continued his 

draining and ditch digging activities, simply ignoring whatever government directives came his 

way,” up to the government’s filing of its lawsuit that alleged violations of 33 U.S.C. § 1311(a) 

for discharging pollutants into the waters of the United States without a permit. Cundiff, 555 F.3d 

at 204-05.

The Wards state in their Response brief that they “have alleged ... that continuous and 

intermittent violations have occurred due to the Stuckes’ failure to obtain a permit for its 

discharge.” (Doc. No. 43-1 at PageID 434 (emphasis added).) In accordance with Gwaltney, such

good faith allegations were sufficient at the motion for judgment on the pleadings (or motion to 

dismiss)stage to avoid dismissal. Gwaltney, 484 U.S. at 64 (33 U.S.C. § 1365 “confers jurisdiction 

over citizen suits when the citizen-plaintiffs make a good-faith allegation of continuous or 

intermittent violation”); see also Ohio Pub. Int. Rsch. Grp., 963 F. Supp. at 640 (recognizing that 

“proving on-going violations of environmental standards at the pleading stage, without the benefit 

of discovery, would often be an insurmountable obstacle to the initiation of a citizen suit”). But, 

of course, we are no longer at the motion to dismiss stage. The discovery period is complete. 

Now, at the summary judgment stage, citizen-plaintiffs must offer evidence to support their

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allegations. Anderson, 477 U.S. at 248-50; Gwaltney, 484 U.S. at 66 (if the plaintiffs’ allegations 

“were in fact, untrue, then the [defendants] should have moved for summary judgment on the ... 

issue and demonstrated to the District Court that the allegations were sham and raised no genuine 

issue of fact. If the defendant fails to make such a showing after the plaintiff offers evidence to 

support the allegation, the case proceeds to trial on the merits, where the plaintiff must prove the 

allegations in order to prevail”) (internal quotation marks omitted) (emphasis added). Yet, none 

of the evidence cited by the Wards in their Response brief (or otherwise) supports that “continuous 

and intermittent violations have occurred.” (Doc. No. 43-1 at PageID 434.4) In short, after the 

Stuckes met their initial burden (Celotex Corp., 477 U.S. at 323), the Wards failed to meet their 

burden of setting forth specific facts showing that there is a genuine issue for trial regarding 

whether the violation(s) are “wholly past.” Gwaltney, 484 U.S. at 64 (the CWA “does not permit 

citizen suits for wholly past violations”); see also Anderson, 477 U.S. at 248-50; Celotex Corp., 

477 U.S. at 324 (Rule 56 “requires the nonmoving party to go beyond the [unverified] pleadings” 

and present some type of evidentiary material in support of its position).

The Wards also assert in their Response brief that “[t]he dredge and fill remains in the 

altered wetlands, resulting in a continuing violation.” (Doc. No. 43-1 at PageID 435.) However, 

the Wards do not provide any evidentiary material to support the assertion that dredge and fill 

remains in the altered wetlands. This dooms the Wards’ argument regarding the (alleged) 

continued presence of dredge and fill material. 

4

In their Response brief, the Wards also state: “[A]s already briefed and decided upon in the resolution of the 

Defendant’s Motion for Judgment on the Pleadings, the continued presence of dredged or fill material constitutes a 

continuing violation of the CWA.” (Doc. No. 43-1 at PageID 434.) First, the Court made no such decision on that 

issue whatsoever. Perhaps unsurprisingly, the Wards do not provide any citation to the Court’s prior order to support 

their statement. Second, and as specifically stated in that prior order, that prior motion was decided on an entirely 

different standard of review. (See Doc. No. 20 at PageID 247 (denying motion for judgment on the pleadings “in 

accordance with the standard set forth above for ruling on a motion for judgment on the pleadings,” and expressly 

stating that “[t]he Court stresses that its decision is based on the allegations in the pleadings and that it is not making 

any decision regarding whether the CWA claim will or will not withstand any subsequent motion practice”).)

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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, and there are 

good arguments on both sides of the issue.5 See, e.g., Day, 315 F. Supp. 3d at 1236 (explaining 

that “two competing interpretations have arisen since Gwaltney” regarding “what constitutes an 

ongoing violation”). 

One line of cases (cited by the Stuckes) supports that pollutant simply remaining in 

navigable water is not an ongoing violation. For example, the Second Circuit Court of Appeals 

has held that “[t]he present violation requirement of the [CWA] would be completely undermined 

if a violation included the mere decomposition of pollutants.” Conn. Coastal Fishermen’s Ass’n 

v. Remington Arms Co., Inc., 989 F.2d 1305, 1313 (2d Cir. 1993). In that case, the defendant had 

owned and operated a trap and skeet shooting club where clay targets and lead shot (alleged 

pollutants) ended up in the adjacent waters of Long Island Sound. Id. at 1308. By the time the 

citizen-plaintiff had filed suit, the defendant had stopped operating the shooting club. Id. at 1312. 

However, “none of the lead shot or the clay target fragments” had been removed from the waters 

either at the time the plaintiff had filed suit or at the time the court issued its opinion. Id. at 1310. 

The Second Circuit held that the citizen-plaintiff’s CWA claim “was directed at wholly past 

violations” and, therefore, “summary judgment was properly granted in [defendant’s] favor 

dismissing plaintiff’s suit against it.” Id. at 1313; see also, e.g., Pawtuxet Cove Marina, Inc. v. 

Ciba-Geigy Corp., 807 F.2d 1089, 1094 (1st Cir. 1986) (dismissing citizen-plaintiff’s CWA claim

for violations of a permit that limited defendant’s discharges of wastewater because there was no 

reasonable likelihood that defendant’s alleged infractions would continue given that it had ceased 

5 Neither party directs the Court to a Sixth Circuit Court of Appeals decision on this issue, and the Court has not found 

a Sixth Circuit Court of Appeals decision addressing the issue or the competing lines of cases.

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operating under the permit); Wilson v. Amoco Corp., 33 F. Supp. 2d 969, 975-76 (D. Wyo. 1998) 

(granting summary judgment on plaintiff citizens’ CWA claims “because Defendants presently are 

not adding—and were not adding at the time Plaintiffs filed their complaint—any pollutants from 

a point source into navigable waters or tributary ground water, and because there is no threat of a 

continuing or future CWA violation”); Aiello v. Town of Brookhaven, 136 F. Supp. 2d 81, 121 

(E.D.N.Y. 2001) (dismissing citizen-plaintiffs’ CWA claim where “[t]here is no particular warrant 

for assessing CWA penalties against the [defendant] for failing to obtain a permit in contemplation 

that the closed landfill at some future date might leak pollutants into navigable waters”).

However, another line of cases from outside of the Sixth Circuit (cited by the Wards) 

provides legal support for the Wards’ argument that “[t]he continued presence of dredged or fill 

material constitutes a continuing violation of the CWA” (Doc. No. 43-1 at PageID 426; see also 

id. at PageID 434-35). In contrast to the line of cases relied on by the Stuckes (including Conn. 

Coastal Fishermen’s Ass’n), the line of cases relied on by the Wards essentially takes “a broad 

view of what constitutes an ‘ongoing’ violation: that the failure to undertake remedial measures to 

remove the effects of a wholly past violation of the CWA constitutes an ongoing violation.” Day, 

315 F. Supp. 3d at 1236 (citing Sasser v. EPA, 990 F.2d 127, 129 (4th Cir. 1993) (“[e]ach day the 

pollutant remains in the wetlands without a permit constitutes an additional day of violation”); City 

of Mountain Park, Ga. v. Lakeside at Ansley, LLC, 560 F. Supp. 2d 1288, 1293 (N.D. Ga. 2008); 

Informed Citizens United, Inc. v. USX Corp., 36 F. Supp. 2d 375 (S.D. Tex. 1999)).

Again, the Court believes that, even if there was evidence of the continued presence of 

dredged or fill material, it would not constitute an “ongoing violation” here. In addition to the line 

of cases cited by the Stuckes (including Conn. Coastal Fishermen’s Ass’n), support for this 

conclusion comes from the Sixth Circuit’s statement in Tamaska: “A citizen may establish that a 

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violation is ongoing either 1) by proving violations that continue on or after the date the complaint 

is filed, or 2) by adducing evidence from which a reasonable trier of fact could find a continuing 

likelihood of a recurrence in intermittent or sporadic violations.” Tamaska, 26 F. App’x at 485 

(internal quotation marks omitted). This statement shows that the requirements of a violation 

likewise must be ongoing. Id. Again, the alleged violation here is of 33 U.S.C. § 1311, which 

states that “the discharge of any pollutant by any person shall be unlawful,” and 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. See also Gwaltney, 484 U.S. 

at 57 (explaining that the most natural reading of the “to be in violation” requirement from 33 

U.S.C. 1365 is “a reasonable likelihood that a past polluter will continue to pollute in the future”); 

Crigler, 2010 WL 2265675, at *6-7 (despite plaintiff’s argument that “courts have struggled to 

apply this wholly past doctrine and the better reasoned cases hold that pollution is not wholly past, 

so long as material deposited in a water of the United States remains in those waters,” dismissing 

CWA claim where the single alleged violation occurred about four years prior to the institution of 

the litigation) (internal quotation marks omitted). 

In summary, the Stuckes are entitled to summary judgment on Count 1. This does not 

mean, however, that the Wards are precluded from succeeding on other claims. See, e.g., Wilson, 

33 F. Supp. 2d at 980-81 (despite granting summary judgment on citizen-plaintiff’s CWA claim, 

denying summary judgment on common law claims of trespass, nuisance, and negligence claims, 

among others); see also Day, 315 F. Supp. 3d at 1240 (“[i]t must be emphasized that the conclusion 

that there is no ongoing CWA violation, because there is no ongoing discharge from a point source, 

does not necessarily absolve past violators from any and all liability for their acts”; “[o]ther state 

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and federal laws provide a latticework of responsibilities and liability for past and present

conduct”) (emphasis in original).

B. State Law Private Nuisance and Trespass Claims (Counts 2 & 3)

The only remaining counts in the Complaint are two Ohio state law claims: private 

nuisance and trespass. Given that the Court has granted judgment for Defendants on the only claim 

in the Complaint over which it has original jurisdiction, the Court declines to exercise 

supplemental jurisdiction over Plaintiffs’ remaining claims. 28 U.S.C. § 1367(c)(3) (“The district 

courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has 

dismissed all claims over which it has original jurisdiction”); Harper v. AutoAlliance Int’l, Inc., 

392 F.3d 195, 210 (6th Cir. 2004) (although dismissal is not mandatory because supplemental 

jurisdiction is a doctrine of discretion, not of plaintiff’s right, “[g]enerally, if the federal claims are 

dismissed before trial, the state claims should be dismissed as well”) (internal quotation marks 

omitted). Therefore, the Court dismisses the two remaining claims without prejudice to refiling 

them in state court. Booker v. City of Beachwood, 451 F. App’x 521, 522-23 (6th Cir. 2011) 

(“Once [a] district court dismisse[s] all of the claims over which it ha[s] original jurisdiction, it 

act[s] squarely within its discretion by declining supplemental jurisdiction over the remaining 

[state law] claim[s] and dismissing [them] without prejudice”). In this Order, the Court simply 

decides that Plaintiffs’ claim under the CWA fails, not whether the two state law claims may or 

may not be viable or successful if refiled in state court. Bettis, 800 F. Supp. at 1115 (declining to 

retain jurisdiction over plaintiffs’ state law claims and, therefore, dismissing them where the CWA 

claim was plaintiffs’ only federal claim and the court granted summary judgment to defendants on 

the CWA claim).

IV. CONCLUSION

For the reasons stated above, the Court GRANTS, IN PART, Defendants’ Motion for 

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Summary Judgment (Doc. No. 41). More specifically, the Court grants summary judgment to 

Defendants on Count One of the First Amended Complaint; declines to exercise supplemental 

jurisdiction over the remaining counts in the First Amended Complaint; and, therefore, dismisses 

Counts Two and Three of the First Amended Complaint without prejudice to refiling in state court. 

This case shall be TERMINATED on the Court’s docket.

DONE and ORDERED in Dayton, Ohio, this Friday, September 3, 2021. 

s/Thomas M. Rose

________________________________

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE

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