Georgia Construction Company Must Remain Defendant in Wetlands Suit, Court Finds

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A federal court in Georgia has refused to dismiss a construction company from a lawsuit over wetlands violations, even though the company did not own the property at the time of the alleged dumping of dredge material.

The contractor, TowneClub Construction, asked the U.S. District Court for the Southern District of Georgia to dismiss it from the suit against a mortgage company that owns much of the subdivision on the fabled and picturesque St. Simons Island. The island gained a little more fame recently when part of the Netflix series “Pieces of Her” were filmed there last year.

A group of landowners on the isle in 2020 charged that the lending company, Mortgage of America Lenders, violated the federal Clean Water Act and a U.S. Army Corps of Engineers permit over dumping of material into sensitive wetlands, clearing of vegetation, construction of stormwater drainage structures, and failure to prevent erosion, according to the judge’s order.

TowneClub Construction, which owns about 34 of the lots in the subdivision, argued that the Clean Water Act does not allow suits against adjacent property owners who do not own the land in question.

“TowneClub’s argument misunderstands plaintiffs’ allegations,” U.S. District Judge Lisa Godbey Wood wrote last week.

The injured landowners added TowneClub to the suit in 2021, noting that without the company’s cooperation, Mortgage of America cannot implement best practices or comply with a state environmental permit. The plaintiffs also allege continuing violations and the continued presence of fill material, which affects adjacent wetlands, the court explained.

Citing previous federal court rulings, the judge noted that to have jurisdiction under the Clean Water Act, “the plaintiff must show that, when the suit was filed, there existed ‘a state of either continuous or intermittent violation—that is, a reasonable likelihood that a past polluter will continue to pollute in the future.'”

The judge found that “it is clear plaintiffs have made the necessary allegations to sustain their claims against TowneClub. And this is so even though TowneClub undisputedly did not commit the initial violations.”

St. Simons Island, about an hour north of Jacksonville, Florida, is known for its nearby salt marshes, made famous by poet Sidney Lanier. It’s also steeped in Revolutionary War and Civil War-era history, including a slave ship rebellion.

The spot has become a popular tourist destination and resort home locale, along with a stop on the professional golf tour. Plaintiff Gayle Baker and eight other residents took exception to the subdivision construction practices and apparent despoiling of waterways.

Now, the latecomer property owner, TowneClub Construction, could be held responsible for some of the damages.

Photo: Image of work underway on St. Simons Island, included in the complaint.