25. Under 40 C.F.R. §§ 122.26(a)(1)(ii), (b)(14), and (c)(1), dischargers of
stormwater associated with industrial activity are required to apply for an individual permit or
seek coverage under a promulgated stormwater general permit.
26. On January 29, 2015, NYSDEC promulgated GP-0-15-002, the SPDES General
Permit for Stormwater Discharges from Construction Activity, which is set to expire on January
28, 2020 (the “Construction General Permit”).
27. An owner or operator of a “construction activity,” as that term is defined under
40 C.F.R. §§ 122.26(b)(14)(x), 15(i) and 15(ii), must obtain coverage under the Construction
General Permit before commencing any construction activities. See 40 C.F.R. § 122.21(a)(1);
N.Y. Comp. Codes R. & Regs. Tit. 6, § 750-1.4.
28. To be covered by the Construction General Permit, and pursuant to its terms, an
owner or operator of a construction activity must submit a Notice of Intent; prepare and
implement a Stormwater Pollution Prevention Plan; conduct inspections; perform maintenance
activities; and meet other requirements.
B. Permits for Concentrated Animal Feeding Operations
29. An animal feeding operation (“AFO”) is defined as a lot or facility (other than an
aquatic animal production facility) where (1) animals (other than aquatic animals) have been,
are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-
Case 7:19-cv-09600-AEK Document 3 Filed 10/18/19 Page 6 of 24 Case 7:19-cv-09600 Document 1 Filed 10/17/19 Page 6 of 24
7
month period, and (2) crops, vegetation, forage growth, or post-harvest residues are not sustained
in the normal growing season over any portion of the lot or facility. 40 C.F.R. § 122.23(b)(1).
30. Animal feeding operations that meet certain specified criteria are referred to as
Concentrated Animal Feeding Operations (“CAFOs”). 40 C.F.R. § 122.23(b)(2).
31. CAFOs can pose a number of risks to water quality and public health, mainly due
to the amount of animal manure and “process wastewater” they generate. Process wastewater is
defined as water directly or indirectly used in the operation of the CAFO for any of the
following: spillage or overflow from animal water systems; washing, cleaning, or flushing pens,
barns, manure pits, or other CAFO facilities; direct contact swimming, washing, or spray cooling
of animals; or dust control. 40 C.F.R. § 122.23(b)(7). Process wastewater also includes any
water which comes into contact with any raw materials, products, or byproducts, including
manure, litter, feed, or bedding. Id.
32. CAFOs are point sources that are subject to the NPDES permit program.
33 U.S.C. § 1362(14); 40 C.F.R. § 122.23(a).
33. A “medium CAFO” is defined as an animal feeding operation that (1) stables or
confines within the range of 150 to 499 horses, 40 C.F.R. § 122.23(b)(6)(i)(F), and
(2) discharges pollutants into waters of the United States, 40 C.F.R. § 122.23(b)(6)(ii).
34. “[T]wo or more AFOs under common ownership are considered to be a single
AFO for the purposes of determining the number of animals at an operation, if they adjoin each
other or if they use a common area or system for the disposal of wastes.” 40 C.F.R.
§ 122.23(b)(2).
35. A CAFO may not discharge pollutants to navigable waters unless the discharge
is authorized by a Clean Water Act Section 402 permit, including a SPDES permit issued by the
Case 7:19-cv-09600-AEK Document 3 Filed 10/18/19 Page 7 of 24 Case 7:19-cv-09600 Document 1 Filed 10/17/19 Page 7 of 24
8
State of New York. In New York State, to obtain authorization to discharge, a CAFO owner or
operator must either apply for an individual SPDES permit (“CAFO Individual Permit”) or
submit a notice of intent for coverage under a SPDES general permit (“CAFO General Permit”).
If the State has not made a CAFO General Permit available, the CAFO owner or operator must
apply for a CAFO Individual Permit. See 40 C.F.R. § 122.23(d).
III. Enforcement
36. CWA Section 309(b) and (d) authorizes the commencement of an action for
injunctive relief and civil penalties against any person who (among other things) violates CWA
Section 301(a) by discharging pollutants to waters of the United States without a permit or who
violates the terms of a Clean Water Act permit issued under Section 402. 33 U.S.C. § 1319(b),
(d).
37. Section 309(d) of the CWA, 33 U.S.C. § 1319(d), as modified, provides for a civil
penalty of up to $35,000 per day for violations occurring between March 16, 2004, and January
11, 2009; up to $37,500 per day for violations occurring between January 12, 2009, and
November 2, 2015; and up to $54,833 per day for violations occurring after November 2, 2015,
and assessed on or after February 6, 2019. 33 U.S.C. § 1319(d); 40 C.F.R. § 19.4.
VIOLATIONS OF THE CWA BY FORD AND THE FORD COMPANIES
I. Ford and the Ford Companies Discharged Fill Into Jurisdictional Wetlands and
Streams Without a Permit
A. Defendants Filled Jurisdictional Wetlands and Rerouted a Stream at the
Slaughter Road Site
i. The Site
38. The Mark Ford Training Center is located at 90 Slaughter Road, in the Town of
Wallkill in Orange County, New York (“Slaughter Road Site”). Defendants Mark Ford Stage
Case 7:19-cv-09600-AEK Document 3 Filed 10/18/19 Page 8 of 24 Case 7:19-cv-09600 Document 1 Filed 10/17/19 Page 8 of 24
9
Road Property, Inc., and Ford Equine, Ltd., are the owners of the Slaughter Road Site, and
defendant Mark Ford Stables, Inc., is engaged in the business of training and racing harness
horses on the Slaughter Road Site.
39. Defendant Ford is the president and sole shareholder of defendants Mark Ford
Stage Road Property, Inc., Mark Ford Stables, Inc., and Ford Equine, Ltd., and at all times
relevant to this complaint, controlled the Slaughter Road Site and all activities relevant to this
complaint that occurred on the Slaughter Road Site.
40. The Slaughter Road Site covers approximately 75.8 acres. Crystal Run Creek
flows southward through the middle of the site.
41. Crystal Run Creek is a perennial tributary of the Wallkill River that has physical
indicators of an ordinary high water mark, including bed and banks. In 2016, after the
construction activities described in paragraphs 54 to 60, EPA confirmed that the portions of the
creek that were upstream of the disturbed site had perennial flow, an ordinary high water mark,
including defined bed and banks, substrate sorting, and fish, benthic algae, and
macroinvertebrate s associated with perennial flow conditions. Crystal Run Creek flows
southward from the site approximately one mile to the Wallkill River.
42. The Wallkill River flows approximately 42.3 miles northeast to Rondout Creek, a
major tributary of the Hudson River. The United States Fish and Wildlife Service publicizes selfguided kayak and canoeing activities on the Wallkill River within the Wallkill River National
Wildlife Refuge, which is situated in Orange County, New York, and Sussex County, New
Case 7:19-cv-09600-AEK Document 3 Filed 10/18/19 Page 9 of 24 Case 7:19-cv-09600 Document 1 Filed 10/17/19 Page 9 of 24
10
Jersey. Several car-top boat launches are also situated at various locations along the Wallkill
River.
ii. Ford Is on Notice of Jurisdictional Wetlands
43. In 1994, the then-owner of the Slaughter Road Site, Russell Triolo (“Triolo”),
through his consultant, North Country Ecological Services (“North Country”), asked the Corps
of Engineers for a wetlands jurisdictional determination on the Slaughter Road Site.
44. In a jurisdictional determination dated June 30, 1995 (“1995 Jurisdictional
Determination”), which was based on a 1993 wetland delineation by North Country, the Corps of
Engineers observed that there were four wetland areas on the subject property, which totaled
25.34 acres of jurisdictional wetlands.
45. According to the 1995 Jurisdictional Determination, the first wetland area
(“Area A”) was located along the northern property line and contained approximately 5.24 acres
within the property boundary. The second wetland (“Area B”) was located in the central portion
of the property and was approximately 0.55 acres. The third wetland (“Area C”) was located on
the eastern portion of the property and was approximately 12.08 acres within the property
boundary. The fourth wetland (“Area D”) ran through the middle of the property and included a
pond and “an unnamed tributary to the Wallkill River” (i.e., Crystal Run Creek), and was
approximately 7.47 acres. The wetland Areas A, B, C and D, which totaled approximately
25.34 acres, abutted Crystal Run Creek.
46. As a result of the 1995 Jurisdictional Determination, Triolo abandoned his plans
to develop the Slaughter Road Site into an industrial park.
47. In April 2007, Triolo sold his property to defendant Mark Ford Stage Road
Property, Inc.
Case 7:19-cv-09600-AEK Document 3 Filed 10/18/19 Page 10 of 24 Case 7:19-cv-09600 Document 1 Filed 10/17/19 Page 10 of 24
11
48. Beginning in the spring of 2007, defendant Ford commenced extensive
construction at the Slaughter Road Site.
