In a January 6 decision, U.S. v. Brace, No. 21-2966 (3rd Cir. Jan. 6, 2023), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling that a long-standing consent decree prohibiting discharge to wetlands is valid and unambiguous. This decision is a good reminder that Consent Decrees have a long shelf life and that private parties should negotiate carefully to ensure both its short-term and long-term interests are protected.

In 1996, the United States entered into a Consent Decree with the Appellants, a farm and its operators, prohibiting them from discharging pollutants into a 30-acre wetlands site on part of their property. The Consent Decree included a hand-drawn map depicting the wetlands. It further required the Appellants to “restore the hydrologic regime” of the wetlands by, among other things, removing a drainage tile system, filling in two surface ditches, and constructing a dam check.

Twenty years later, in January 2016, the United States alleged the Appellants violated the Consent Decree by discharging into the wetlands, installing a new drainage tile system (after removing the old one), and removing the dam check that they previously installed. The United States then moved to enforce the Consent Decree in the U.S. District Court for the Western District of Pennsylvania.

The Appellants made a variety of arguments in response, chief among which was that the Consent Decree was ambiguous in that the hand-drawn depiction of the wetlands site did not clearly delineate the site’s boundaries. The Court summarily rejected this argument because the Appellants’ discharges covered an 18-acre area; “[a]ny ambiguity in the precise borders . . . cannot reasonably account for the prohibited discharges in such a wide-ranging area.”

They also argued that the Consent Decree’s objective of “restor[ing] the hydrologic regime” was ambiguous. The Court likewise rejected this argument, concluding that while the Consent Decree did not define “hydrologic regime,” it did explicitly require certain actions, such as removing the drainage system and installing a dam check. The intent to restore the integrity of the area was, therefore, clear. The Appellants further claimed that government agents informed them that reversing course on those actions—i.e., installing the drainage and removing the check—was permissible. But the Court determined that even if such representations were made, they could not supersede the unambiguous and contrary terms of the Consent Decree.

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