Petition for Writ of Certiorari — Jeffrey Andrews, Petitioner v. United States

i

Appendix

Table of Contents

Summary Order, U.S. Court of Appeals for

the Second Circuit, filed March 19, 2025 ........... 1a

Ruling on Motion for Summary Judgment,

U.S. District Court for the District of

Connecticut, filed June 12, 2023 ......................... 8a

Default and Final Judgment, U.S. District

Court for the District of Connecticut,

filed May 3, 2024 ............................................... 39a

Order denying petition for panel rehearing,

U.S. Court of Appeals for the Second Circuit,

filed July 24, 2025 ............................................. 47a

1a

Filed March 19, 2025

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT

HAVE PRECEDENTIAL EFFECT. CITATION

TO A SUMMARY ORDER FILED ON OR AFTER

JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED

BY

FEDERAL

RULE

OF

APPELLATE PROCEDURE 32.1 AND THIS

COURT’S LOCAL RULE 32.1.1. WHEN CITING

A SUMMARY ORDER IN A DOCUMENT FILED

WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC

DATABASE

(WITH

THE

NOTATION “SUMMARY ORDER”). A PARTY

CITING A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 19th day of March, two

thousand twenty-five.

Present:

BARRINGTON D. PARKER,

MICHAEL H. PARK,

ALISON J. NATHAN,

Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-CounterDefendant-Appellee,

2a

v.

24-1479

JEFFREY ANDREWS,

Defendant-CounterClaimant-Appellant.*

_____________________________________

FOR PLAINTIFFAPPELLEE:

Arielle Mourrain Jeffries, for

Todd Kim, Assistant Attorney

General, United States

Department of Justice,

Washington, DC.

FOR DEFENDANTAPPELLANT:

Jeffrey Andrews, pro se,

Wallingford, CT.

Appeal from an order of the United States District

Court for the District of Connecticut (Hall, J.).

UPON DUE CONSIDERATION, IT IS

HEREBY

ORDERED,

ADJUDGED,

AND

DECREED that the order of the district court is

AFFIRMED.

In 2020, the United States, on behalf of the

Environmental Protection Agency (“EPA”), filed a civil

complaint against Jeffrey Andrews, claiming that he

violated the Clean Water Act (“CWA”) by

(1) discharging pollutants into the waters of the

United States, in violation of CWA Section 301(a); and

* The Clerk of the Court is respectfully directed to amend the

caption as set forth above.

3a

(2) refusing to provide information and access

required by the EPA, in violation of CWA Section 308.1

The district court granted the government’s motion

for summary judgment on Andrews’s liability and

entered an order on remedies and injunctive relief.2

See United States v. Andrews, 677 F. Supp. 3d 74 (D.

Conn. 2023). The district court later entered a

“default and final judgment,” reiterating the terms of

the injunction and specifying that Andrews was

jointly and severally liable with the other defendants

for restoration costs. See United States v. Andrews,

No. 3:20-CV-1300 (JCH), 2024 WL 2800232 (D. Conn.

May 3, 2024). Proceeding pro se, Andrew now appeals

the district court’s May 3, 2024 order. We assume the

parties’ familiarity with the underlying facts, the

procedural history, and the issues on appeal.

I.

Appellate Jurisdiction

The district court has not issued a “final decision”

within the meaning of 28 U.S.C. § 1291 because it has

The complaint also named Andrews’s wife and children. The

district court granted default judgment against them. See

United States v. Andrews, No. 3:20-CV-1300 (JCH), 2024 WL

2801708 (D. Conn. May 2, 2024). On appeal, Andrews at times

refers to his wife and children, but we construe his brief as

representing only himself and do not address the arguments he

purports to raise on behalf of his family. See Tindall v. Poultney

High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (“[A] parent not

admitted to the bar cannot bring an action pro se in federal court

on behalf of his or her child.”).

2 The district court later entered a partial final judgment as to

liability and injunctive relief against Andrews, pursuant to Fed.

R. Civ. P. 54(b). Andrews elected not to appeal until after the

district court entered its judgment as to the other defendants.

Neither his notice of appeal nor amended notice of appeal

identifies the Rule 54(b) dismissal.

1

4a

not decided whether to impose civil penalties and if so

how much. See RSS WFCM2018-C44-NY LOD, LLC

v. Lexington Operating DE LLC, 59 F.4th 586, 590 (2d

Cir. 2023) (“[A] finding of liability is ordinarily not

treated as a final decision for purposes of section 1291

when questions of remedy remain unresolved.”). Still,

we have jurisdiction over “[i]nterlocutory orders . . .

granting, continuing, modifying, refusing, or

dissolving injunctions.” 28 U.S.C. § 1292(a)(1). And

because the order Andrews appeals entered injunctive

relief against him, “we may also address the summary

judgment order that served as the district court’s

principal legal basis for granting the injunction.”

Shakhnes v. Berlin, 689 F.3d 244, 250 n.3 (2d Cir.

2012) (quotation marks omitted).

II.

Liability

“We review de novo the District Court’s grant of

summary judgment.” 1077 Madison St., LLC v.

Daniels, 954 F.3d 460, 463 (2d Cir. 2020). “Summary

judgment is proper only when, construing the

evidence in the light most favorable to the nonmovant, there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a

matter of law.” Doninger v. Niehoff, 642 F.3d 334, 344

(2d Cir. 2011) (quotation marks omitted).

Section 301 of the CWA prohibits the “discharge of

any pollutant” into “navigable waters” without a

permit issued by the EPA. 33 U.S.C. §§ 1311(a), 1342.

Section 308 requires owners of “any point source” to

provide information to the EPA as it “may reasonably

require” to determine whether a violation has

occurred. Id. § 1318(a). Here, Andrews admits that

he never acquired a permit. And he does not deny his

failure to comply with the EPA’s requests for

5a

information and access to his property. Instead,

Andrews argues that the case should have been

dismissed because there is no surface water on his

property. See Appellant’s Br. at 6-7. We disagree.

The CWA applies to wetlands that have “a

continuous surface connection” with “relatively

permanent bod[ies] of water connected to traditional

interstate navigable waters.” Sackett v. EPA, 598 U.S.

651, 678 (2023) (cleaned up). So the CWA does not

require surface water but only soil that is regularly

“saturated by surface or ground water.” 33 C.F.R.

§ 328.3(c)(1). And Andrews fails to rebut the expert

report concluding that his property had wetlands

connected to traditional navigable waters.

Andrews next contends that the district court did

not properly apply the Submerged Lands Act and

Supreme Court precedent. See Appellant’s Br. at 710, 12-13. But the Submerged Lands Act is inapposite

to violations of the CWA. See generally 43 U.S.C.

§§ 1301 et seq.; Alaska v. United States, 545 U.S. 75,

79 (2005). And the cases Andrews cites do not relieve

his obligation to comply with the CWA. See generally

Koontz v. St. Johns River Mgmt., 570 U.S. 595 (2013);

Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992);

Kaiser Aetna v. United States, 444 U.S. 164 (1979).

Andrews’s constitutional arguments fare no better.

His Fourth, Eighth, and Fourteenth Amendment

claims are not properly before us because he failed to

preserve those arguments. See Green v. Dep’t of Educ.

of City of N.Y., 16 F.4th 1070, 1078 (2d Cir. 2021)

(declining to reach claim raised for the first time on

appeal by a pro se litigant). His Fifth and Ninth

Amendment arguments fail because his answer—filed

through counsel—abandoned his counterclaims. And

6a

even if the restriction on the property amounted to a

taking, the proper recourse would be to seek

compensation.3

See United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 129 n.6 (1985)

(“[I]f the [government] has indeed effectively taken

respondent’s property, respondent’s proper course is

not to resist the . . . suit for enforcement by denying

that the regulation covers the property, but to initiate

a suit for compensation.”).

In sum, Andrews has not shown that the district

court erred by granting summary judgment to the

government as to his liability under the CWA.

III. Restorative Injunction

We review the scope of a district court’s injunction

for abuse of discretion.” Shakhnes, 689 F.3d at 250

(quotation marks omitted). “A district court abuses its

discretion if it (1) bases its decision on an error of law

or uses the wrong legal standard; (2) bases its decision

on a clearly erroneous factual finding; or (3) reaches a

conclusion that, though not necessarily the product of

a legal error or a clearly erroneous factual finding,

cannot be located within the range of permissible

decisions.” Picard v. Magliano, 42 F.4th 89, 96-97 (2d

Cir. 2022) (quotation marks omitted).

Andrews does not explicitly challenge the district

court’s injunctive order. Nor does he argue that the

district court abused its discretion in ordering the

injunction. But to the extent that we construe his

3 The district court assumed without deciding that a taking

occurred for the purpose of disposing of Andrews’s Takings

Clause argument. But the district court never found that there

was a taking, and Andrews does not point to evidence about the

CWA’s economic impact on his use of the property.

7a

arguments as challenging the injunction, such a

challenge would be meritless. As explained above,

Andrews fails to defeat the CWA claims, so we find no

abuse of discretion in the district court’s decision to

order a restorative injunction.

Finally,

Andrews

requests

a

nationwide

permanent injunction to prevent the Department of

Justice, EPA, and Army Corps of Engineers from

enforcing the CWA on private property. Because he

did not seek such relief below, his request is forfeited.

* * *

We have considered Andrews’s remaining

arguments and conclude they are without merit.

Accordingly, we AFFIRM the order of the district

court, to the extent that it imposed injunctive relief

against Andrews.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

/s/ Chatherine O’Hagan Wolfe

8a

Filed June 12, 2023

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF

AMERICA,

Plaintiff,

v.

JEFFREY ANDREWS,

ET AL.,

Defendants.

CIVIL CASE NO.

3:20-CV-1300 (JCH)

JUNE 12, 2023

RULING ON MOTION FOR SUMMARY

JUDGMENT

(DOC. NO. 224)

I. INTRODUCTION

The plaintiff, the United States of America (“the

Government”), brings this action against the

defendant, Jeffrey Andrews (“Mr. Andrews”), alleging

violations of sections 301 and 308 of the Clean Water

Act (CWA). See 33 U.S.C. §§ 1311, 1319. In

particular, the Government asserts that Mr. Andrews

filled in approximately 13.3 acres of the 16.3 acres of

jurisdictional wetlands on his property.

See

Memorandum in Support of Motion for Summary

Judgment (“Pl.’s Mem.”) at 1 (Doc. No. 224-1). The

Government also claims that Mr. Andrews failed to

comply with multiple requests for information about

the site issued by the U.S. Environmental Protection

Agency (“EPA”). Id.

Now before the court is the Government’s Motion

for Summary Judgment on liability only, see Motion

for Summary Judgment at 1-2 (“Mot. for Summ. J.”)

(Doc. No. 224), which Mr. Andrews opposes, see

9a

Defendant’s Response to Motion for Summary

Judgment (“Def.’s Resp.”) (Doc. No. 240). For the

reasons discussed below, the Government’s Motion is

granted.

II. BACKGROUND

Before delving into the factual and procedural

background of the instant case, the court must

address an issue regarding Mr. Andrews’ response to

the Government’s Motion. The Rules of the United

States District Court for the District of Connecticut

set forth requirements relating to what a party

opposing summary judgment must file. See D. Conn.

L. Civ. R. 56(a)2. An opposition must include a

document known as a “Local Rule 56(a)2 Statement of

Facts in Opposition to Summary Judgment,” which

“shall include a reproduction of each numbered

paragraph in the moving party’s Local Rule 56(a)1

Statement followed by a response to each paragraph

admitting or denying the fact and/or objecting to the

fact as permitted by Federal Rule of Civil Procedure

56(c).” Id. Moreover, each:

statement of material fact . . . in an opponent’s

Local Rule 56(a)2 Statement[ ] must be followed

by a specific citation to (1) the affidavit of a

witness competent to testify as to the facts at

trial, or (2) other evidence that would be

admissible at trial.

D. Conn. L. Civ. R. 56(a)3. The Local Rules also make

clear that failure to comply with this requirement

“may result in the Court deeming admitted certain

facts that are supported by the evidence in accordance

with Local Rule 56(a)1, or in . . . an order granting the

motion if the motion and supporting materials show

10a

that the movant is entitled to judgment as a matter of

law.” Id.

In support of its Motion, the Government sent Mr.

Andrews the Notice to Self-Represented Litigants

Regarding Summary Judgment, as required by the

Local Rules.

See Notice Regarding Unclaimed/

Returned Notice to Self-Represented Litigant at 1

(Doc. No. 232); D. Conn. L. Civ. R. 56(b). The Notice

sets forth the requirements detailed above as well as

the potential consequences for litigants who fail to

comply with the Local Rules. See D. Conn. L. Civ. R.

56(b). However, the United States Postal Service

returned the Notice, unopened, to the Government.

Id. at 1-2. Accordingly, the court held an in-person

status conference on December 14, 2022, for the sole

purpose of ensuring that Mr. Andrews received copies

of all documents relating to the Government’s Motion

and to set a deadline for the defendant’s opposition.

See Notice to Counsel/Pro Se Litigant (ECF No. 236).

At the hearing, Mr. Andrews was handed a copy of the

Motion—including the Notice to Self-Represented

Litigants as well as the Federal and Local Rules

pertaining to motions for summary judgment—and

had his obligations explained to him directly. See

Minute Entry for December 14, 2022 Proceedings

(Doc. No. 237).

Despite these warnings in writing and in person,

Mr. Andrews’ opposition to the Government’s Motion

did not include a Local Rule 56(a)2 Statement. See

Def.’s Resp. Indeed, the three-paragraph response

makes no effort to comply with the Local Rules. See

id. It fails to refer directly to any of the paragraphs in

the Government’s Local Rule 56(a)1 Statement of

Undisputed Material Facts or to include any specific

citation to evidence that would be admissible at trial.

11a

See id. Indeed, the opposition does not mention any

facts at issue in this case. See id.

While it is true that “a court is ordinarily obligated

to afford a special solicitude to pro se litigants”, Tracy

v. Freshwater, 623 F.3d 90, 101 (2d. Cir. 2010), that

does not absolve Mr. Andrews of his obligations under

the Federal and Local Rules. See Hanna v. Am. Cruise

Lines, Inc., 2019 WL 6770132, at *3 (D. Conn. Dec. 12,

2019); see also McNeil v. United States, 508 U.S. 106,

113 (1993) (“[W]e have never suggested that

procedural rules in ordinary civil litigation should be

interpreted so as to excuse mistakes by those who

proceed without counsel.”). In light of Mr. Andrews’

failure to comply with the requirements of the Local

Rules, the court deems the Government’s factual

assertions—to the extent that they are supported by

admissible evidence—admitted. See D. Conn. L. Civ.

R. 56(a)3; see also Johnson-Barnwell v. FCI Danbury,

2014 WL 839247, at *3 (D. Conn. Mar. 4, 2014).

A. Factual Background

1. The Andrews’ Property and Filling Activities

The property at issue in this case is land that spans

approximately 72 acres across two parcels, which are

located at 216 Northford Road in Wallingford,

Connecticut, and 69 Woods Hill Road in North

Branford, Connecticut. Plaintiff’s Local Rule 56(a)1

Statement of Facts (“Pl.’s 56(a)1 Stmt.”) ¶ 2 (Doc. No.

224-2). On December 28, 2011, Mr. Andrews and his

wife, Lynn Cooke Andrews, transferred ownership of

the parcels to their adult children—Wesley W.

12a

Andrews, Colton C. Andrews, and Ellery E.

Andrews1—in exchange for one dollar. Id. ¶ 4.

The Andrews’ land is surrounded by largely

undeveloped parcels, including state-designated

watershed protection land. Id. ¶ 5. The Andrews’

property is located within the watershed of an

Unnamed Tributary of the Farm River and

approximately 690 linear feet of the tributary falls

within the boundaries of their land.

Id. ¶ 7;

Declaration of Raymond Putnam (“Putnam Dec.”) ¶ 8

(Doc. No. 8-5). The Farm River, the Unnamed

Tributary, and the Andrews’ land are all a part of a

South Central Water Authority public drinking water

supply watershed.

Pl.’s 56(a)1 Stmt. ¶ 8.

Additionally, the land downstream from the Andrews’

property is owned by the Water Authority for the

purpose of safeguarding the area’s supply of potable

water. Id. ¶ 9.

Prior to the Andrews’ activity on their land, the

property contained a combination of upland—or nonwetland—areas and freshwater wetlands. Id. ¶ 6.

Thomas Peragallo and Richard Kirby—experts in

delineating disturbed wetlands and in wetland

botany, respectively—conducted eight days of field

work to determine the presence and scope of wetlands

on the property. Id. ¶¶ 14-16. Based on their findings

and his own analysis, Peter Stokely—an expert in

1 Mr. Andrews’ wife and children—Lynn Cooke Andrews,

Wesley W. Andrews, Colton C. Andrews, and Ellery E.

Andrews—are also defendants in this case. However, the four

co-defendants failed to appear following the withdrawal of their

counsel, and, on May 31, 2022, the court directed the Clerk to

enter default against them. See Ruling on Motion to Strike

Answers and for Default Judgment on Liability Against Absent

Defendants at 6 (Doc. No. 208).

13a

aerial photography interpretation and geographic

system analysis (GIS)—assessed that there were

approximately 16.3 acres of wetlands on the Andrews’

land prior to the family’s filling activities. Id. ¶¶ 1112. Those 16.3 acres of wetlands are adjacent to and

directly abuts the Unnamed Tributary, which flows to

the Farm River. Id. ¶¶ 27, 89.

Andrew Earles (“Dr. Earles”), a professional

hydrologist and engineer, analyzed the property and

surrounding tributaries, wetland, and watershed. Id.

¶¶ 21-22, 25. He identified the Farm River as a

traditional navigable water, and the Unnamed

Tributary to the Farm River as a perennial stream

that would have year-round flow under normal

hydrologic conditions. Id. ¶ 23-25, 91, 94. As part of

his field work, Dr. Earles observed aquatic

organisms—like caddisfly, mayfly, and stonefly

larvae; crayfish; green frogs; and minnows—that

suggest permanence of flow. Id. ¶ 26. Dr. Earles

determined that the 13.3 acres of disturbed wetlands

on the Andrews’ property are “part of a wetland

complex that provides a habitat for a range of aquatic

organisms, exports detritus that supports the food

chain, improves water quality by filtering runoff, and

recharges shallow groundwater providing baseflows

to the streams, among other functions.” Exhibit D,

Affidavit and Report of Andrew Earles (“Dr. Earles’

Report”) at 20 (Doc. No. 224-6 at 27); Pl.’s 56(a)1 Stmt.

¶¶ 28, 100. These wetlands, Dr. Earles added:

along with similarly situated wetlands in the

watershed, affect the physical, biological, and

chemical characteristics of the Northeast

Tributary, the Southern Tributary, the

Unnamed Tributary, and the Farm River due

to increased runoff (rate, volume, and

14a

frequency), reduced baseflow, degradation of

water quality, and loss of habitat. These effects

are significant and more than speculative.

Dr. Earles’ Report at 20; Pl.’s 56(a)1 Stmt. ¶¶ 29, 100.

Ultimately, Dr. Earles concluded that the 13.3 acres

of “wetlands filled by the Andrews . . . [were]

jurisdictional under 2015 Clean Water Rule and the

NWPR, which similarly cover wetlands adjacent to

otherwise jurisdictional waters.” Dr. Earles’ Report at

20; see also Pl.’s 56(a)1 Stmt. ¶ 87 (“Prior to

disturbance, the Site contained 16.3 acres of

freshwater wetlands that meet the CWA regulatory

definition of wetlands, that includes the 13.3-acre

violation area.”); Pl.’s 56(a)1 Stmt. ¶ 96 (“Based on

continuous surface flow paths during runoff events

connecting the wetlands identified by Mr. Stokely

with the Unnamed Tributary, the entire area of

wetlands filled on the Andrews’ property would be

considered jurisdictional by application of the

adjacency standard articulated [by the plurality] in

Rapanos, as well as the 2015 Clean Water Rule.”).

Mr. Stokely’s aerial photographs show both predisturbance wetlands on the property as well as signs

of “clear-cutting, stumping, grubbing, filling, and

grading from 2010 to the present, including the

presence of heavy machinery beside newly disturbed

areas.” Id. ¶¶ 31, 80. The filling of the 13.3 acres

occurred principally between September 2010 and

2016, though aerial imagery indicates additional

earthmoving and deposition of fill into or next to

wetland areas up through 2020. Id. ¶¶ 32-34. In

addition to Mr. Stokely’s aerial imagery, EPA

investigators documented red mineral soil being

spread into the disturbed wetlands as well as

windrows of topsoil that likely originated onsite. Id.

15a

¶¶ 35-36. During a site visit, an EPA investigator

observed that there “were no sediment and erosion

control structures . . . to prevent erosion”, Putnam

Dec. ¶ 55, which allowed “for the transport of

sediment, and possibly nutrients and pathogens, into

the [U]nnamed [T]ributary.” Id.

This comports with Mr. Peragallo’s findings of soil

disturbances as well. See Exhibit C, Declaration of

Thomas Peragallo and LEC Environmental

Consultants Report (“Peragallo and Kirby Report”) at

19 (Doc. No. 224-5 at 21). At several wetland test

sites, he documented stripping, which is the “removal

of soil surface layers.” Id.; Pl.’s 56(a)1 Stmt. ¶ 39. In

addition, Mr. Peragallo found examples of regrading,

which is the “[s]preading and leveling of stripped soil,

with and without additional soil material from

windrowed material, compost and borrow areas on the

site.” Peragallo and Kirby Report at 19; Pl.’s 56(a)1

Stmt. ¶ 41.

The investigation also uncovered

instances of soil material being added on top of

wetlands:

“[m]ostly native red soils that were

transported from other locations on the Andrews’

property, or from off-site locations . . . were placed over

former wetlands and other low places in the

landscape.” Peragallo and Kirby Report at 19; Pl.’s

56(a)1 Stmt. ¶ 43. Finally, Mr. Peragallo observed the

creation of “[d]rainage swales to direct excess runoff

water and ground water seepage exposed by other

excavation activity. . . .” Peragallo and Kirby Report

at 19; Pl.’s 56(a)1 Stmt. ¶ 45.

On June 10, 2019, EPA investigators saw Mr.

Andrews in an excavator atop newly spread fill

16a

material,2 which was placed directly into wetlands.

See Putnam Dec. ¶¶ 61-62; Pl.’s 56(a)1 Stmt. ¶¶ 4849, 66.

Mr. Andrews proceeded to retract the

excavator arm, drive out onto the road, and wave to

the EPA inspector. Pl.’s 56(a)1 Stmt. ¶ 67. Evidence

of new filling, approximately 1300 cubic yards of

material, was spotted on June 17, 2019, as well. Id.

¶ 68. On July 29 and October 15, 2019, EPA

investigators again observed new fill material and

heavy machinery on the Andrews’ property. See

Putnam Dec. ¶¶ 65-66; Pl.’s 56(a)1 Stmt. ¶ 50-51.

2. Federal Law Enforcement Activity Related to

the Andrews’ Property

The U.S. Army Corps of Engineers (the “Corps”)

opened an enforcement file for the Andrews’ property

on April 27, 2010, following an inquiry from the Town

of Wallingford wetland enforcement officer, who

conveyed the family’s noncompliance with local cease

and desist orders. See Pl.’s 56(a)1 Stmt. ¶ 52. On

April 15, 2011, the Corps visited the property for the

first time, confirming the presence of wetlands as well

as the filling of those wetlands without the requisite

permit. Id. ¶¶ 53-54. During that visit, the Corps told

Mr. Andrews that no further work should be

conducted in the areas of the property under the

regulatory jurisdiction of the CWA without prior

authorization from the Corps. Id. ¶ 54. Mr. Andrews

indicated to the Corps that he intended to continue

working on his property, including in areas containing

federally regulated waters and wetland. Id. ¶ 55.

2 This was done in contravention of an administrative warrant

and order, as the court will discuss separately. See, infra, Section

II(A)(2); Pl.’s 56(a)1 Stmt. ¶¶ 48-49.

17a

On November 12, 2017, the Corps referred the

matter to the EPA after finding that additional fill of

wetlands had occurred on the property. Id. A Notice

of Violation and Cease and Desist letter was issued by

the Corps to Mr. and Mrs. Andrews on March 20,

2018. Id. ¶ 56. Nearly two months later, on May 16,

2018, the EPA sent notification letters to each

member of the Andrews family reiterating the Corps’

finding that additional filling of wetlands had

occurred on the property and advising the defendants

to consult the Corps before conducting any additional

work in the wetland areas. Id. ¶ 57. Between May

2018 and April 2019, the EPA sought information—

multiple times and by multiple means—from the

defendants about the property and the family’s

actions on it. Id. ¶ 58. These EPA missives, sent

pursuant to section 308 of the CWA, also requested

access to the Andrews’ property to conduct field work

and to assess the presence of the jurisdictional

wetlands as well as the extent of potential CWA

violations. Id. Despite warnings that failure to reply

could result in civil penalties, the Andrews family did

not respond to any of the EPA’s many section 308

requests. Id. ¶¶ 59, 105, 108; Putnam Dec. ¶ 97.

Faced with the Andrews family’s unresponsiveness, the United States Attorney’s Office for the

District of Connecticut filed—on the EPA’s behalf—an

application for an ex parte administrative warrant

and order on May 8, 2019. Pl.’s 56(a)1 Stmt. ¶ 60. The

Application and Order were granted on the same day.

Id. ¶ 61. In doing so, the court authorized an

inspection period spanning from May 20, 2019, until

June 17, 2019, and ordered that “no changes be made

to the Property” until the completion of that period.

Id.

The EPA began executing its Compliance

18a

Inspection—pursuant to the court’s administrative

warrant and order, which was hand delivered to Mr.

and Mrs. Andrews—on May 20, 2019. Id. ¶ 62.

Throughout the period, the EPA went to the property

six times and was joined by the Corps as well as an

EPA contractor on a few occasions. Id. ¶ 64. On

multiple occasions, the EPA investigators saw

evidence of new wetland filling during the inspection

period. See, supra, Section II(A)(1); Pl.’s 56(a)1 Stmt.

¶¶ 48-49, 65-68, 73-74.

Ultimately, the EPA’s

Compliance

Inspection

corroborated

what

investigators previously suspected: the Andrews’

property included CWA jurisdictional wetlands, which

had been filled without a permit from at least 2009

until the close of the inspection period in June 2019.

Pl.’s 56(a)1 Stmt. ¶ 69.

After the inspection period concluded, the EPA sent

the Andrewses a Notice of CWA Violations along with

photographs of the property that show ongoing work

in the wetland areas. Id. ¶ 70. The Notice laid out the

scope of alleged CWA violations, informed the

defendants that the EPA was considering enforcement

options, instructed the Andrews family to consult with

the Corps before conducting further work on the

property, and directed them to respond immediately

to the EPA’s section 308 requests. Id. ¶¶ 71-72.

B. Procedural Background

The Government filed its Complaint in this case on

September 2, 2020, seeking injunctive relief and civil

penalties under the CWA. See Complaint (Doc. No. 1).

The next day, the Government moved for a

preliminary injunction to prevent the Andrewses from

conducting unauthorized dredge and fill activities in

jurisdictional waters pending the resolution of the

19a

case. See Motion for Preliminary Injunction at 1 (Doc.

No. 8). On December 29, 2020, after holding an

evidentiary hearing on the issue, the court granted in

part the Government’s Motion for a Preliminary

Injunction over the defendants’ opposition, enjoining

the defendants from placing additional dredge or fill

material in jurisdictional waters in prescribed areas.

See Order Granting in Part Preliminary Injunction

(Doc. No. 46). The Andrewses requested and the court

granted an extension of time to file a Motion for

Reconsideration, but the Andrewses failed to file such

a Motion. See Order Granting Motion to Extend (Doc.

No. 49).

Subsequently, after twice amending their Answer,

the Andrewses filed a Motion to Dismiss for Lack of

Jurisdiction and Motion to Suppress (“3/31/21 Motion

to Dismiss and Suppress”) (Doc. No. 71) as well as a

Motion to Stay (Doc. No. 93), which the court denied.

See Ruling Denying Motions to Dismiss for Lack of

Jurisdiction, to Suppress, and to Stay (“6/11/21

Ruling”) (Doc. No. 97).

In their Motions, the

Andrewses argued that the court lacked jurisdiction

over the Government’s claims and that the court

should suppress any evidence obtained by the

Government during its search of their property

pursuant to an administrative warrant. See 6/11/21

Ruling at 1-2. The court determined that it had

federal question jurisdiction over the matter and that

the administrative warrant was properly issued to the

Government. See 6/11/21 Ruling 7-8, 11-12.

The Andrewses then sought an Emergency

Protective Order to preclude the Government from

entering onto their property for a limited period

beginning on June 23, 2021, to conduct discovery. See

Motion for Protective Order (Doc. No. 104). The court

20a

denied the Andrewses’ Motion, finding the

Government’s

proposed

activities

reasonable,

minimally intrusive, and within the bounds of

permissible discovery contemplated by the Federal

Rules of Civil Procedure.

See Order Denying

Emergency Rule 26(c) Motion for Protective Order

(Doc. No. 110).

After the court denied the Andrewses’ Motion for a

Protective Order, the Government inspected the

property. On July 6, 2021, the Government filed a

Notice with the court alleging that it had observed

approximately 15 dump truck loads of new fill

material within the area subject to the court’s

preliminary injunction. See Notice (Doc. No. 112).

On August 13, 2021, Magistrate Judge Vatti

granted in part and denied in part another Motion for

a Protective Order (Doc. No. 75). See Order (Doc. No.

120). Judge Vatti ordered the defendants to produce

documents and respond to the Government’s first set

of interrogatories by August 31, 2021.

The

Andrewses, however, failed to do so and, on

September 16, the government moved to compel the

Andrewses to comply.3

See Motion to Compel

Compliance (Doc. No. 128).

From the outset of the litigation, the Andrewses

had been represented by counsel. However, the two

3 Though not directly relevant to the instant Motion, Mr.

Andrews’ failure to comply with this discovery request persisted

and was the subject of the Government’s July 11, 2022 Motion

for Sanctions (Doc. No. 223). On October 25, 2022, the Motion

was granted, and Mr. Andrews was barred from introducing into

evidence information that would have been responsive to the

Government’s discovery requests, either in support of or in

defense to the claims in this case. See Ruling on Motion for

Sanctions (Doc. No. 229).

21a

attorneys representing the Andrewses moved to

withdraw on August 26, 2021. See Motion for

Lawrence A. Kogan to Withdraw (Doc. No. 123);

Motion for Rachel N. Baird to Withdraw (Doc. No.

124). On October 20, 2021, after a hearing and upon

agreement by Jeffrey Andrews, the court granted both

attorneys’ Motions to Withdraw upon a finding of good

cause. See Oct. 20, 2021 Transcript of Proceedings at

42-43 (Doc. No. 147). The court set a deadline of

November 10, 2021, for new counsel to appear or for

the individual defendants to file pro se appearances.

Id. By November 12, neither counsel nor any of the

defendants had filed appearances, so Judge Vatti

ordered a telephonic status conference for November

22, 2021. See Notice of E-Filed Calendar (ECF No.

148). On November 15, Jeffrey Andrews filed an

appearance (Doc. No. 151) along with a Motion to

Dismiss (Doc. No. 150). Neither Mr. Andrews nor any

of the other defendants appeared for the November 22

conference, so Judge Vatti rescheduled the proceeding

to December 6, 2021. See Notice of Orders (ECF No.

158). On December 6, only Mr. Andrews and counsel

for the government appeared. Id. To date, none of the

other defendants have filed appearances.

Mr. Andrews then filed a Motion to Stay Discovery

pending the resolution of his November 15 Motion to

Dismiss. See Motion to Stay (Doc. No. 163). Judge

Vatti denied the Motion to Stay on January 1, 2021,

determining that Mr. Andrews had not shown good

cause supporting the Motion. See Order (ECF No.

170). On the same day, Judge Vatti granted the

Government’s Motion to Compel Compliance with the

Court’s August 13, 2021 Order. See Order (ECF No.

167).

22a

On March 7, 2022, Mr. Andrews moved to

disqualify the undersigned and Judge Vatti due to

lawsuits Mr. Andrews filed against them.4 See Motion

for Disqualification (Doc. No. 181). The Motion was

denied due to the court’s view that there was no basis

for Mr. Andrews’ claims in the then-pending lawsuits,

see Ruling (Doc. No. 182), but Mr. Andrews still

proceeded to move for a new judge, see Motion for New

Judge (Doc. No. 186). This Motion, too, was denied for

the same reason as the Motion for Disqualification.

See Order (ECF No. 188).

Mr. Andrews moved for summary judgment on

April 20, 2022, see Motion for Summary Judgment

(Doc. No. 191), and, on May 2, he moved to dissolve

the Preliminary Injunction, see Motion to Dissolve

Preliminary Injunction (Doc. No. 197). On May 10, the

4 On February 15, 2022, Mr. Andrews filed two lawsuits

against the undersigned. See Andrews v. Hall, 22-cv-267 (MPS);

Andrews v. Hall, 22-cv-269 (MPS). As of October 25, 2022, Mr.

Andrews had filed eight more lawsuits against the undersigned

and other judges in this District. See Andrews v. Dooley, 22-cv1185 (VAB); Andrews v. Shea, 22-cv-950 (KAD); Andrews v. Vatti,

22-cv-873 (KAD); Andrews v. Vatti, 22-cv-335 (MPS); Andrews v.

Vatti, 22-cv-334 (MPS); Andrews v. Vatti, 22-cv-333 (MPS);

Andrews v. Vatti, 22-cv-332 (MPS); Andrews v. Hall, 22-cv-280

(MPS). All but one of the lawsuits against the undersigned were

dismissed, and Mr. Andrews appealed the dismissals. See

Andrews v. Hall, 2023 WL 309609, at *1-2 (2d Cir. Jan. 19, 2023).

On January 19, 2023, the Second Circuit affirmed the judgments

of dismissal in all cases. Id. While there remains one case

pending, see id. at 1 n.1, the claims against the undersigned in

that lawsuit have all been dismissed with prejudice, see Order

(ECF No. 6), Andrews v. Vatti, 22-cv-873 (“Therefore, the Court

DISMISSES WITH PREJUDICE the claims against Judge Hall

and Magistrate Judge Vatti as frivolous because those

defendants are immune from suit and because the claims

asserted against them have already been raised, and dismissed

with prejudice, in earlier-filed lawsuits by this plaintiff.”).

23a

court denied his Motion for Summary Judgment,

highlighting that Mr. Andrews “failed to submit a

Statement of Facts as required under District of

Connecticut Local Rule 56.”5 Order (ECF No. 205).

The court went on to explain that Mr. Andrews offered

“no discussion whatsoever of any facts relevant to his

Motion”, and that none of the cases to which he “copied

and pasted block quotations from the syllabi . . .

[were ] even on point with respect to the instant

matter.” Id. That same day, the court also denied Mr.

Andrews Motion to Dissolve the Preliminary

Injunction, emphasizing that the defendant presented

no new facts or circumstances justifying such an

action. See Order (ECF No. 206).

On June 2, 2022, Mr. Andrews filed yet another

Motion to Dismiss, this time asserting that the

Government lacked standing. See Motion to Dismiss

(Doc. No. 210). This Motion was denied on June 24,

2022, because “Congress has authorized the EPA to

bring actions in federal court to enforce the Clean

Water Act, see 33 U.S.C. §§ 1319(a)(3), (b) and (d),

[thus] the Executive Branch need not incur a

‘particularized injury’ to carry out its duty under

Article II to enforce federal law.” Order (ECF No. 218)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

576-77 (1992)).

The court now considers the Government’s Motion

for Summary Judgment. See Mot. for Summ. J.; Pl.’s

Mem.; Memorandum in Opposition to Motion to

Dismiss (Doc. No. 239); Reply in Support of Motion for

Summary Judgment (“Pl.’s Reply”) (Doc. No. 241).

5 This renders Mr. Andrews failure to file a Statement of Facts

in connection with the instant Motion for Summary Judgment

especially troubling. See, supra, Section II.

24a

Mr. Andrews opposes the Motion. See Def.’s Resp.;

Motion to Dismiss as a Matter of Law (“Def.’s Mot.”)

(Doc. No. 233);

III. LEGAL STANDARD

A motion for summary judgment may be granted

only when the moving party can establish that “there

is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 256 (1986); Wright v. N.Y. State Dep’t of

Corr., 831 F.3d 64, 71-72 (2d Cir. 2016). If the moving

party satisfies this burden, the nonmoving party must

set forth specific facts demonstrating that there is

indeed “a genuine issue for trial.” Wright v. Goord,

554 F.3d 255, 266 (2d Cir. 2009). A genuine issue

exists where “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.”

Cross Commerce Media, Inc. v. Collective, Inc., 841

F.3d 155, 162 (2d Cir. 2016). Unsupported allegations

do not create a material issue of fact and cannot

overcome a properly supported motion for summary

judgment. See Weinstock v. Columbia Univ., 224 F.3d

33, 41 (2d Cir. 2000). In assessing the record to

determine whether there are disputed issues of

material fact, the trial court must “resolve all

ambiguities and draw all inferences in favor of the

party against whom summary judgment is sought.”

LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165, 175

(2d Cir. 1995).

IV. DISCUSSION

A. Discharge of Pollutants Without a Permit

In support of its Motion for Summary Judgment,

the Government avers that the undisputed material

25a

facts show that Mr. Andrews violated the CWA by

discharging dredge and fill material into the waters of

the United States without the requisite permit. See

Pl.’s Mem. at 26. Mr. Andrews counters—by citing

cases related to takings claims that the court has

already stated are not “on point with respect to the

instant matter”, Order (ECF No. 205)—that the law

permits him to “build in wetlands and navigable

waters” of the United States. Def.’s Mot. at 1; see also

Def.’s Resp. at 1 (“The Supreme Court of the United

States has stated on PRIVATE PROPERTY in

wetlands you can by United States Constitutionally

enumerated and protected rights build houses,

commercial buildings, marinas, and cities such as but

not limited to Walt Disney World, New Orleans, and

Washington, DC (the swamp).”).

The aim of the CWA is “to restore and maintain the

chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance

of this goal, “it is unlawful for a party to discharge a

pollutant into the nation’s navigable waters” without

a permit issued under the National Pollutant

Discharge Elimination System (“NPDES”). Catskill

Mountains Chapter of Trout Unlimited, Inc. v. EPA,

846 F.3d 492, 502 (2d Cir. 2017); see 33 U.S.C.

§§ 1311(a), 1362(12); S. Fla. Water Mgmt. Dist. v.

Miccosukee Tribe, 541 U.S. 95, 102 (2004) (noting that

“NPDES requires dischargers to obtain permits that

place limits on the type and quantity of pollutants

that can be released into the Nation’s waters”). Thus,

for the Government to establish liability for the CWA

violation, it must show that Mr. Andrews:

“(1) discharged a pollutant (2) from a point source

(3) into navigable waters and (4)” without a NPDES

26a

permit.”6 Borough of Upper Saddle River, N.J. v.

Rockland Cnty. Sewer Dist. # 1, 16 F. Supp. 3d 294,

327 (S.D.N.Y. 2014).

Additionally, unpermitted

discharges of pollutants from a point source into

navigable waters are assessed on a strict liability

basis. Id.; see also Coal. for a Liveable W. Side, Inc. v.

N.Y.C. Dep’t of Env’t. Prot., 830 F.Supp. 194, 198

(S.D.N.Y. 1993) (“Courts have held that the CWA

imposes strict liability”).

1. Mr. Andrews Discharged Pollutants from a

Point Source

The Government first argues that there is no

genuine dispute of material fact that Mr. Andrews

discharged a pollutant from a point source. Under the

CWA, the phrase “discharge a pollutant” is defined as

“any addition of any pollutant to navigable waters

from any point source.” 33 U.S.C. § 1362(12). More

specifically, the CWA defines “pollutant” as “dredged

spoil, . . . rock, sand, [and] cellar dirt. . . .” 33 U.S.C.

§ 1362(6). Meanwhile, a “point source” is broadly

defined to mean “any discernible, confined and

discrete conveyance, including but not limited to any

pipe, ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated animal

feeding operation, or vessel or other floating craft,

from which pollutants are or may be discharged.” 33

U.S.C. § 1362(14). Moreover, in Simsbury-Avon Pres.

Soc’y, LLC v. Metacon Gun Club, Inc., the Second

Circuit made clear that “the definition of a point

6 The Government’s Motion proposes that it must also show

that Mr. Andrews is a person under the statute. See Pl.’s Mem.

at 26. Because the CWA’s definition of “person” includes

individuals, see 33 U.S.C. § 1362(5), the court has no trouble

concluding that Mr. Andrews qualifies.

27a

source is to be broadly interpreted[.]” 575 F.3d 199,

219 (2d Cir. 2009) (internal quotation marks and

citation omitted).

The Second Circuit has concluded that vehicles can

constitute point sources.

See Concerned Area

Residents for Env’t v. Southview Farm, 34 F.3d 114,

118-19 (2d Cir. 1994) (citing Avoyelles Sportsmen’s

League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir.

1983) (determining bulldozers and backhoes

constitute point sources under the CWA)). Indeed,

courts in this Circuit and beyond have consistently

held that “[b]ulldozers, loaders, backhoes, or dump

trucks that deposit or spread fill material are point

sources.” United States v. Acquest Transit LLC, 2009

WL 2157005, at *5 (W.D.N.Y. July 15, 2009); see also,

e.g., United States v. Sweeney, 483 F. Supp. 3d, 871,

917 (E.D. Cal. 2020) (“[T]he term ‘point source’

includes bulldozers, dump trucks, and other

equipment used to place dredged or fill material in

waters of the United States.”); United States v.

Pozsgai, 999 F.2d 719, 726 n.6 (3d Cir. 1993) (“Courts

have consistently held that dump trucks and

bulldozers, such as those used for depositing and

spreading fill . . ., qualify as ‘point sources.’”)

(collecting cases). Accordingly, “the use of mechanized

equipment in wetlands resulting in the placing of dirt,

sand, gravel or other materials into the waters of the

United States constitutes the discharge of a pollutant

from a point source within the meaning of the CWA.”

United States v. Smith, 2019 WL 6336884, at *10

(E.D.N.Y. Sept. 30, 2019) (quotation and citation

omitted), report and recommendation adopted, 2019

WL 6124479, at *2 (E.D.N.Y. Nov. 19, 2019).

Here, aerial images in the record show signs of

clear-cutting, stumping, grubbing, filling, and grading

28a

from 2010 to the present, including the presence of

heavy machinery beside newly disturbed areas. Pl.’s

56(a)1 Stmt. ¶¶ 31, 80. This imagery also indicates

additional earthmoving and deposition of fill into or

next to wetland areas up through 2020. Id. ¶¶ 32-34.

From this undisputed evidence, Mr. Stokely concluded

that 13.3 acres of wetlands on the property were filled

by clearing and grading activity. Id. ¶ 81. Moreover,

in May and June of 2019 in particular, EPA

investigators saw “dump trucks, an excavator, and a

bulldozer on the [property], and observed Mr.

Andrews personally filling wetland areas with an

excavator.” Id. ¶ 85; see also id. ¶ 51 (“On October 15,

2019, and again on June 10, 2020, EPA observed new

fill material and heavy machinery within the Aerial

Photo Interpretation (“API”) identified wetlands on

the [property].”).

Additionally, the Government sent Mr. Andrews a

set of Requests for Admission—pursuant to Federal

Rule of Civil Procedure 36—on March 22, 2022. See

Fed. R. Civ. P. 36; Declaration of Redding Cates

(“Cates Decl.”) ¶ 2 (Doc. No. 224-3). Rule 36 makes

clear that a “matter is admitted unless, within 30 days

after being served, the party to whom the request is

directed serves on the requesting party a written

answer or objection addressed to the matter and

signed by the party or its attorney.” Fed. R. Civ. P.

36(a)(3). Here, Mr. Andrews failed to respond to the

Requests for Admission within thirty days, see Cates

Decl. ¶ 4, resulting in the material in the

Government’s Requests being deemed admitted by

Mr. Andrews and conclusively established. See Fed.

R. Civ. P. 36(b). Such admitted material includes that

Mr. Andrews placed or directed others to place fill or

dredged material from a “Point Source” into wetlands

29a

that are hydrologically connected by surface waters to

navigable waters, and that Mr. Andrews has

controlled or had the right to control access to the

property since 2001. See First Set of Requests for

Admission to Jeffrey Andrews (“Requests for

Admission”) at 5 (Doc. No. 224-3 at 7) (emphasis

added).

Thus, the court concludes that there is no genuine

dispute of material fact that Mr. Andrews is liable7 for

the filling and earth-moving activity that took place

on his property and that amounted to a discharge of a

pollutant from a point source.

2. Mr. Andrews Discharged the Pollutants into

Navigable Waters

After demonstrating that Mr. Andrews discharged

pollutants from a point source, the Government must

next show that he did so into navigable waters. This

requires, first, that the Government demonstrate that

the filling activities occurred in areas deemed

“wetlands” under the CWA and attendant regulations.

See Pl.’s Mem. at 30. Second, the Government must

show that those wetlands are “waters of the United

States”—such that they fall within the ambit of the

CWA—under Supreme Court precedent. Id.

7 Courts in this Circuit and elsewhere have recognized that the

CWA imposes liability on the person with responsibility for or

control over the performance of the work that causes the CWA

violation. See, e.g., United States v. Whitehill, 2018 WL 459300,

at *4 n.7 (W.D.N.Y. Jan. 18, 2018) (collecting cases). Given it is

undisputed that Mr. Andrews “controlled or directed the

activities” on the property “at all times during the violation

period”, Pl.’s 56(a)1 Stmt. ¶¶ 77, 86, the court concludes that he

is liable if the violation is otherwise shown.

30a

Wetlands are defined as areas that “are inundated

or saturated by surface or ground water at a frequency

and duration sufficient to support, and that under

normal circumstances do support, a prevalence of

vegetation typically adapted for life in saturated soil

conditions. Wetlands generally include swamps,

marshes, bogs, and similar areas.” See 33 C.F.R.

§ 328.3(c)(1). In the case at bar, the undisputed

evidence shows that there were approximately 16.3

acres of wetlands on the Andrews’ land prior to the

family’s filling activities, see Pl.’s 56(a)1 Stmt. ¶¶ 1112, 87, and that the wetlands on the property “had

sufficient hydric soils and hydrology to support

wetland vegetation”, id. ¶ 88. Indeed, Dr. Earles

concluded that the 13.3 acres of disturbed wetlands on

the Andrews’ property are “part of a wetland complex

that provides a habitat for a range of aquatic

organisms, exports detritus that supports the food

chain, improves water quality by filtering runoff, and

recharges shallow groundwater providing baseflows

to the streams, among other functions.” Exhibit D,

Affidavit and Report of Andrew Earles (“Dr. Earles’

Report”) at 20 (Doc. No. 224-6 at 27); Pl.’s 56(a)1 Stmt.

¶¶ 28, 100.8 As such, the court concludes that there is

no genuine dispute of material fact that there are

wetlands on Mr. Andrews’ property.

Very recently, the U.S. Supreme Court redefined

the precise scope of CWA as it pertains to wetlands,

8 It bears noting that, in 2003,the Andrewses hired private

consultants to conduct a wetland delineation and inland wetland

survey. See Exhibit C, Affidavit and Report of Peter M. Stokely

(“Mr. Stokley’s Report”) at 1 (Doc. No. 224-4). Their consultants

identified approximately 10 acres of wetlands on the property,

including wetlands through which the Unnamed Tributary flows.

See id. at 6, 19 (Figure 3), 21 (Figure 5).

31a

emphasizing that it “extends to only those wetlands

that are ‘as a practical matter indistinguishable from

waters of the United States.’” Sackett v. EPA, 598

U.S. ----, --- S. Ct. ----, 2023 WL 3632751, at *14 (U.S.

May 25, 2023) (quoting Rapanos v. United States, 547

U.S. 715, 755 (2006) (plurality opinion)). In its

opinion, the Sackett Court sought to clarify what

precisely the CWA means when it defines “navigable

waters” as “waters of the United States.” 33 U.S.C.

§ 1362(7). In adopting the plurality position set forth

in Rapanos, the Sackett Court held that the party

asserting CWA jurisdiction over an adjacent wetlands

must establish: (1) “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 [(2)] 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, 2023

WL 3632751, at *14 (quoting Rapanos, 547 U.S. at

742). The Sackett Court also limited the definition of

“adjacent” to mean contiguous, rather than near or

neighboring. Id. at *13.

Even with this narrow definition, the Government

has demonstrated that there is no genuine dispute of

material fact that the wetlands into which Mr.

Andrews’ discharged pollutants are “waters of the

United States” under the CWA and the Sackett Court

definition. Id. at *13-*14. As to prong one, there is

undisputed expert evidence that “[a]ll 13.3 acres of

wetlands filled on the Andrews Site are part of an

approximately 16.3-acre continuous wetland complex

that . . . directly abuts the Unnamed Tributary, which

is a relatively permanent tributary to the Farm River.

32a

. . .” Pl.’s 56(a)1 Stmt. ¶ 89 (emphasis added).9 There

is also undisputed evidence that the Unnamed

Tributary is “relatively permanent,” id. ¶ 92, and that

it is a perennial stream that would flow year-round

under “normal hydraulic conditions”, Dr. Earles’

Report at 11; see also Sackett, 2023 WL 3632751, at

*10 (“[T]he 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.”)

(internal quotation marks and citation omitted).

Similarly, the Farm River flows perennially

The wetlands identified by the Government’s experts include

wetlands that are clearly contiguous to the Unnamed Tributary.

See, e.g., Mr. Stokley’s Report at 23 (Figure 6a), 38 (Figure 17).

The figures prepared by Mr. Stokley, for example, plainly show

wetlands filled by Mr. Andrews that abut the Unnamed

Tributary to east and to the west. See, e.g., id. at 38 (Figure 17).

9

The issue before the court in Count One is whether Mr.

Andrews is liable for discharging pollutants from a point source

into waters of the United States without a permit. See, e.g., Pl.’s

Mem. at 38 (“For the reasons stated above, the Court should

grant the United States’ motion for summary judgment on

liability on Counts I and II of the Complaint”); Mot. for Summ. J.

at 2 n.2 (“The United States suggests that upon a finding of

liability, the parties submit briefs addressing the [appropriate]

relief. . . . The Court can then determine whether any further

proceedings are necessary to reach a final decision on the

remedies for Defendant’s CWA violations.”). Based on the

undisputed evidence, there is no question that Mr. Andrews filled

wetlands that directly abut the Unnamed Tributary and have a

continuous surface connection with that water. See, e.g., id. at

38 (Figure 17); Dr. Earles’ Report at 14. The court’s analysis and

conclusion on this point are based on this undisputed record.

However, the court leaves for another day the issue of

appropriate remedies, which will require a more thorough

accounting of the precise scope of Mr. Andrews’ CWA violation.

33a

southward to the Long Island Sound and Atlantic

Ocean, Pl.’s 56(a)1 Stmt. ¶ 7; Dr. Earles’ Report at 8;

Mr. Stokley’s Report at 7, which are subject to the ebb

and flow of the tide and are therefore “navigable

water[s].” See id.; 33 C.F.R. § 329.4. Moreover, the

Farm River, Long Island Sound, and the Atlantic

Ocean “were used in the past, or may be susceptible to

use, in interstate or foreign commerce or are adjacent

to waters used in the past or susceptible to use, in

interstate or foreign commerce.” Smith, 2019 WL

6336884, at *12.

As to prong two, the Government has also put

forward

undisputed

evidence

showing

that

“continuous surface connection” exists between the

wetlands and the Unnamed Tributary. In Rapanos,

the plurality explained that a “continuous surface

connection” requires that a wetland have a

“continuous physical connection” to covered waters.

Rapanos, 547 U.S. at 747, 751 n.13, 755. This

requirement is easily satisfied by the undisputed

evidence, which shows that continuous surface flow

paths link the wetlands with the Unnamed Tributary,

see Dr. Earles’ Report at 14, as required by the Sackett

Court’s two-part test for adjacent wetlands.

Thus, the undisputed evidence demonstrates that

the wetlands are jurisdictional under the CWA as they

have a continuous surface connection to “a relatively

permanent body of water connected to traditional

interstate navigable waters.” Sackett, 2023 WL

3632751, at *14 (quoting Rapanos, 547 U.S. at 742).

3. Mr. Andrews Did Not Secure a Permit

The last element the Government must show is

that Mr. Andrews discharged a pollutant into a

navigable water without a NPDES permit. In the

34a

instant case, Mr. Andrews represented to the court

that he did not secure such a permit. See Pl.’s 56(a)1

Stmt. ¶ 79. Mr. Andrews also admitted as much by

virtue of failing to respond to the Government’s Rule

36 Requests for Admission. See Cates Decl. ¶ 4;

Requests for Admission at 5. Accordingly, there is no

genuine dispute of material fact that Mr. Andrews did

not secure a permit, as required by federal law.

4. Mr. Andrews’s Objection and Motion to

Dismiss

After the Government filed its Motion for Summary

Judgment, Mr. Andrews filed both a response, see

Def.’s Resp. at 1, and a Motion to Dismiss as a Matter

of Law, see Def.’s Mot. at 1. The Motion to Dismiss is

pursuant to Federal Rule of Civil Procedure 50, which

articulates the standard for a “motion for judgment as

a matter of law” during a jury trial. See Fed. R. Civ.

P. 50. Mr. Andrews asserts that Rule 50 allows for

such a Motion at “any time before the case is

submitted to the jury.” Def.’s Mot. at 1. However, this

is not the case. As Rule 50 makes clear, such a Motion

is only appropriate “[i]f a party has been fully heard

on an issue during a jury trial and the court finds that

a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party on that issue.”

Fed. R. Civ. P. 50(a)(1). Where, as here, a proceeding

has not advanced to trial, such a Motion is not

permitted.

Accordingly, the court denies Mr.

Andrews’ Motion to Dismiss as a Matter of Law (Doc.

No. 233).

Still, in light of the obligation to construe Mr.

Andrews’ filings liberally due to his pro se status, see

McLeod v. Jewish Guild for the Blind, 864 F.3d 154,

156 (2d Cir. 2017), the court will consider the

35a

arguments raised in his Motion to Dismiss as part of

his opposition to the Government’s Motion for

Summary Judgment. In both filings, Mr. Andrews

argues that the Supreme Court has determined that a

person can build on wetlands occurring on private

property. See Def.’s Resp. at 1; Def.’s Mot. at 1. In

support of this claim, Mr. Andrews points to the

existence of cities as well as a theme park built well

before the enactment of the CWA. In the years since

the CWA’s passage though, the Supreme Court has

continually acknowledged that a person seeking to

discharge dredged or fill material into “navigable

waters” must have a permit to do so lawfully. See, e.g.,

Rapanos 547 U.S. at 715 (2006).

Indeed, the

Government does not dispute that wetlands can be

filled; only that a permit is required. See Pl.’s Reply

at 4. On this point, Mr. Andrews offers no material

facts to dispute that the wetlands on his property are

adjacent to waters of the United States or that he did

not seek a permit for the filling activities he

undertook.

In arguing against the sufficiency of the

Government’s claims, Mr. Andrews also avers that the

applicable regulation imposes “no enforceable duty on

any state, local, or tribal governments, or [the] private

sector.” Def.’s Mot. at 1; 80 Fed. Reg. 37054-01

(June 29, 2015). Yet, the portion of the Federal

Register from which Mr. Andrews quotes concerns the

Unfunded Mandates Reform Act section of the 2015

Notice announcing a revised regulatory definition of

the “waters of the United States.” 80 Fed. Reg. 3705401. This portion of the Notice simply states that the

new Rule “does not contain any unfunded mandate . . .

[because it] imposes no enforceable duty. . . .” Id.

Instead, the definitional change imposes no directs

36a

costs, and any costs that follow are “indirect, because

the rule involves a definitional change to a term that

is used in the implementation of CWA programs (i.e.,

sections 303, 305, 311, 401, 402, and 404).” Id.

Crucially, it notes that “[e]ntities currently are, and

will continue to be, regulated under these programs

that protect ‘waters of the United States’ from

pollution and destruction.” Id. This includes the

portions of the CWA discussed above. As such, this

argument by Mr. Andrews fails.

Finally, Mr. Andrews’ Response cites to Supreme

Court precedent regarding the Fifth Amendment

Takings doctrine. See Def.’s Resp. at 1. This line of

argument is inapposite. As this court has already

noted, “whether Mr. Andrews is entitled to

compensation has no bearing on the claims in this case

that he violated the Clean Water Act.” Ruling on

Motions to Dismiss at 8 (Doc. No. 200).

Thus, the court concludes that there is no genuine

dispute of material fact concerning Mr. Andrews

violation of section 308 of the CWA and grants the

Government’s Motion for Summary Judgment on this

ground.

B. Failure to Provide Information Pursuant to

Section 308 of the CWA

The Government also alleges that Mr. Andrews

violated the CWA by failing to respond to the EPA’s

requests for information. See Pl.’s Mem. at 36.

Section 308 of the CWA requires “the owner or

operator of any point source to” provide the

Administrator of the EPA with “information as he

may reasonably require” to enforce the Act. See 33

U.S.C. § 1318(a)(4)(A). The section also affords the

EPA “a right of entry to, upon, or through any

37a

premises in which an effluent source is located or in

which any records required to be maintained . . . are

located, and may at reasonable times have access to

and copy any records. . . .” Id. § 1318(a)(4)(B)(i)-(ii).

In the case at bar, the EPA sought information

from the defendants about the property and the

family’s actions on it multiple times between May

2018 and April 2019. Pl.’s 56(a)1 Stmt. ¶ 58. The first

request, sent on May 16, 2018, asked for “information

concerning your involvement in discharge activities

that may have impacted wetlands at the site” and

sought 13 categories of information. Id. ¶ 102. The

second section 308 request asked Mr. Andrews to

allow the EPA access to the property to collect field

data “necessary to evaluate the potential discharge

and redeposit of soil and/or other dredged or filled

materials into wetlands on the Site.” Id. ¶ 104. When

Mr. Andrews did not respond, the requests were

renewed by the EPA in December 2018, see id. ¶ 106,

as well as in March and April 2019, see id. ¶¶ 107-08.

Despite these repeated requests and warnings about

the consequences of his failure to reply, Mr. Andrews

and the Andrews family did not respond. Id ¶¶ 59,

105, 108; Putnam Dec. ¶ 97.

The undisputed facts demonstrate that the EPA

was pursuing information about potential CWA

violations on the Andrews’ property based on a

referral by the Corps, who found that wetlands had

been filled on the property between 2010 and 2017.

Id. ¶¶ 52-55. The undisputed evidence in the record

shows that these requests were reasonable and

authorized by statute.

Thus, the court grants

summary judgment to the Government on its claim

that Mr. Andrews violated section 308.

38a

V. CONCLUSION

For the foregoing reasons, the court grants the

Government’s Motion for Summary Judgment (Doc.

No. 224) on both counts. In addition, the court denies

Mr. Andrews’ Motion to Dismiss as a Matter of Law

(Doc. No. 233) as untimely.

SO ORDERED.

Dated at New Haven, Connecticut this 12th day

of June 2023.

/s/ Janet C. Hall

Janet C. Hall

United States District Judge

39a

Filed May 3, 2024

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF

AMERICA,

Plaintiff,

v.

JEFFREY ANDREWS,

LYNN COOKE ANDREWS,

WESLEY W. ANDREWS,

COLTON C. ANDREWS,

and ELLERY E.

ANDREWS,

Defendants.

CIVIL CASE NO.

3:20-CV-1300 (JCH)

MAY 3, 2024

DEFAULT AND FINAL JUDGMENT

This matter of entry of default and final judgment

came before the court as a result of the government’s

Motion for Default Judgment (Doc. No. 258) against

defendants Lynn Cooke Andrews, Wesley W.

Andrews, Colton C. Andrews, and Ellery E. Andrews,

as well as the government’s Motion for Summary

Judgment (Doc. No. 224) and Brief Regarding Remedy

(Doc. No. 250) against defendant Jeffrey Andrews.

After reviewing the papers, on May 31, 2022,

defaults under Fed. R. Civ. P. 55(a) entered against

defendants Lynn Cooke Andrews, Wesley W.

Andrews, Colton C. Andrews, and Ellery E. Andrews

for failure to appear.

Thereafter, the court entered a Ruling (Doc. No.

243) granting the government’s Motion for Summary

Judgment as to defendant Jeffrey Andrews’s liability

and issued its Ruling and Order (Doc. No. 256) setting

40a

forth its remedial orders and injunctive relief against

this defendant.

On May 2, 2024, the court entered a Ruling and

Order (Doc. No. 260) granting the government’s

Motion for Default Judgment and Remedial Relief

against defendants Lynn Cooke Andrews, Wesley W.

Andrews, Colton C. Andrews, and Ellery E. Andrews.

The court notes that, prior to the default entries, all

five

defendants

voluntarily

withdrew

their

counterclaims in the Second Amended Answer (Doc.

No. 70).

Consistent with the foregoing Rulings and Orders,

the court enters this Final Judgment in favor of the

plaintiff, the United States of America, against the

defendants, Jeffrey Andrews, Lynne Cooke Andrews,

Wesley W. Andrews, Colton C. Andrews, and Ellery E.

Andrews as follows:

A. Special Master and Dispute Resolution

A Special Master shall be appointed to oversee the

restorative injunction against the defendants as set

forth below. If the defendants oppose the appointment

of a Special Master, they are ordered to show cause

why a Special Master should not be appointed no later

than 21 days after the date of this Order. The parties

are directed, within 30 days of this Order, to submit,

for the court’s consideration: (1) suggested names of a

possible Special Master and, practically speaking,

how he or she will be compensated; and (2) a joint

proposal prescribing the Special Master’s role and

duties.

B. Restorative Injunction

1. The defendants are to restore the disturbed

wetlands on the Property located at 216 Northford

41a

Road, Wallingford, Connecticut and 69 Woods Hill

Road, North Branford, Connecticut, consistent with

the United States’ Conceptual Wetland and

Tributary-Restoration Plan (“Conceptual Plan”) as a

substantive guide.

See Pl.’s Attachment A,

Conceptual Plan (Doc. No. 250-1). The defendants are

ordered to retain the services of a qualified wetlands

expert or professional within 30 days of this Order. If

there are any questions regarding any element of the

Conceptual Plan, the defendants are ordered to look

to Mr. Schreiber’s Declaration in the first instance.

See Pl.’s Ex. 6, Declaration of Scott Schreiber. The

objective of this mandatory injunction is to recover the

loss of jurisdictional wetlands as well as their

chemical, physical, and biological functions that

resulted from the defendants’ violative activities.

2. The costs associated with the Restoration Plan

are to be apportioned as follows: Defendant Jeffrey

Andrews is jointly and severally liable with the other

defendants for one-hundred percent (100%) of the

total cost. Defendant Lynn Cooke Andrews is jointly

and severally liable with the other defendants for

twenty-five percent (25%) of the total cost.

Defendants Ellery E. Andrews, Wesley W. Andrews,

and Colton C. Andrews are each jointly and severally

liable with the other defendants for seventy-five

percent (75%) of the total cost.

3. The defendants are each ordered to submit a

verified financial statement to the expert and the

government within 30 days of the expert’s

designation. Failure to obey the Order will be

contempt of the court. If the expert finds that, due to

financial constraints, the restoration cannot be

completed within a year, the expert is to propose a

42a

deadline to the government for consideration by the

court.

4. Submission of Proposals

Within 75 days of this Order, the defendants shall,

through a qualified wetlands expert, jointly propose to

the United States a detailed submission including a

schedule and plan for implementing the United

States’ Conceptual Restoration Plan, taking into

account the current state of the wetlands. The United

States shall, within 30 days of service of the proposal,

provide the defendants with comments. If the United

States does not provide comments, the defendants

shall file their submission with the Special Master, if

any, and the court, and comply with it. If the United

States provides comments, the defendants shall revise

their submission consistent with those comments and

file the revised submission with the Special Master, if

any, and the court within 14 days. Thereafter, the

defendants shall comply with the revised Restoration

Plan.

Additionally, within 30 days of filing the

controlling Restoration Plan, the defendants shall,

through a qualified wetlands expert, submit to the

United States a detailed submission including a

schedule and plan for the implementation of the

seven-year period of monitoring and adaptive

management of the wetlands. The submission shall

include a schedule for filing status reports with the

Special Master or, in the event no Special Master has

been appointed, the court. The submission shall also

propose the required contents of the status reports.

The United States shall provide the defendants with

comments within 30 days of service. If the United

States provides comments, the defendants shall revise

43a

the submission consistent with those comments and

file the revised submission with the Special Master or,

in the event no Special Master has been appointed, the

court, and comply with the revised submission

following the end of the restoration period.

C. Compliance-Assurance for Restorative Injunction & Deed Restriction

To ensure compliance with the restorative

injunction, the court further orders the following:

1. The defendants must permit any representative

of the United States and the Special Master the right

to access and inspect, at all reasonable times and with

reasonable advance notice of 5 days, the 16.3 acres of

jurisdictional wetlands located within the properties

at 216 Northford Road, Wallingford, Connecticut and

69 Woods Hill Road, North Branford, Connecticut.

2. No transfer of ownership or control of the

properties located at 216 Northford Road 69 and

Woods Hill Road, or any portion of such properties,

including any interest less than fee-simple, such as an

easement or lease, shall relieve the defendants of their

obligation to comply with this Order absent the

approval of the Special Master, and subject to appeal

to the court. As a condition to any transfer of any

interest in the properties, the defendants shall reserve

all rights necessary to comply with the Order. If the

defendants seek relief from their obligations under

this Order before a transfer of an interest in the

properties, they may file a motion with the court.

Prior to a transfer of any interest, the defendants shall

provide a true and complete copy of the Order and

corresponding Rulings regarding remedies to the

intended transferee, obtain the intended transferee’s

written acknowledgment thereof, provide written

44a

notice to the EPA at least sixty calendar days prior to

the effectuation of the transfer, and file proof of

compliance with the Special Master, if any, and this

court.

3. Within 45 days of this Order, the defendants are

to provide the United States with a proposed deed

restriction, which shall (1) cover the entire 16.3 acres

of jurisdictional wetlands and be in effect for 25 years,

(2) contain notice of the continuing obligations of the

defendants upon transfer of any Property rights as

discussed above, and (3) contain language regarding

inspection and access rights for representatives of the

United States.

The government shall provide

comments or approval within 14 days of service. If the

parties cannot agree upon acceptable language, they

shall jointly present the matter to the Special Master,

and then to the court. If the defendants fail to submit

proposed language, the government is ordered to

submit its proposed language for the deed restriction

no later than 21 days after the defendants’ failure.

4. The deed restriction is to be recorded by Ellery

Andrews, Wesley Andrews, and Colton Andrews in

the Land Records of Wallingford, Connecticut and

North Branford, Connecticut within 30 days of

approval of the deed restriction. The Final Judgment

is to be similarly recorded within 14 days of its entry.

D. Duration

The restorative injunction provided for in this

Order is not permanent. If the defendants have

substantially complied with the performance criteria,

as set forth in the Conceptual Plan and the

forthcoming Restoration Plan, has been met, the

injunction will terminate automatically following the

45a

period of adaptive management. The deed restriction

is to have a duration of 25 years.

However, if the parties are unable to agree that all

performance criteria has been met, the defendants

may file a motion before the Special Master in the first

instance, and then before the court, articulating their

position that the restorative injunction should

terminate.

If the defendants fail to comply with the court’s

Order, the United States may, at any time, file a

motion with the Special Master and, whether there is

a Special Master or not, with the court, seeking

modification of the injunctive relief. On such a

motion, the United States may renew its request for a

permanent prohibitory injunction, or seek other

appropriate relief, such as moving to hold the

defendants in civil or criminal contempt. The United

States bears the burden of showing modification is

necessary and supported by the evidence. On a

motion for permanent injunction in particular, the

United States bears the burden to show the requisite

elements for permanent injunctive relief.

E. Civil Penalties

The appropriate civil penalties assessed against

the defendants will be determined after the

Restoration Plan is completed, or at such earlier time

if the government moves based on the defendants’

failure to undertake the remedial action ordered by

this court.

F. Retention of Jurisdiction

The court retains jurisdiction to resolve disputes

and enforce the Order resolving this matter, and to

enter civil penalties.

46a

SO ORDERED.

Dated at New Haven, Connecticut this 3rd day

of May 2024.

/s/ Janet C. Hall

Janet C. Hall

United States District Judge

47a

Filed July 24, 2025

UNITED STATES COURT OF APPEALS

for the

SECOND CIRCUIT

_____________________________________

At a Stated Term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 24th day of July, two

thousand twenty-five,

Present:

Barrington D. Parker,

Michael H. Park,

Alison J. Nathan,

Circuit Judges.

____________________________

United States of America,

Plaintiff-CounterDefendant-Appellee,

ORDER

v.

Docket No. 24-1479

Jeffrey Andrews,

Defendant-CounterClaimant-Appellant.

____________________________

Appellant Jeffrey Andrews having filed a petition

for panel rehearing and the panel that determined the

appeal having considered the request,

IT IS HEREBY ORDERED that the petition is

DENIED.

For the Court:

Catherine O’Hagan Wolfe,

Clerk of Court

/s/ Catherin O’Hagan Wolfe