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United States v. Whichard

Citation: 14 ELR 20093
No. No. 82-1983, 718 F.2d 1094/20 ERC 1148/(4th Cir., 08/29/1983) Subsequent contempt ruling rev'd

The Fourth Circuit holds that wetlands bordering a small backwater stream connecting with a navigable river are wetlands "neighboring" navigable waters and subject to Army Corps of Engineeers permit jurisdiction under § 404 of the Federal Water Pollution Control Act (FWPCA). The government had sought civil contempt orders against the appellee for discharging fill in wetlands in alleged violation of previously issued injunctions. The lower court ruled the wetlands exempt from permit requirements because they were adjacent to a nontidal stream or "headwaters" that itself was not subject to FWPCA jurisdiction. The court rules that the wetlands fall under § 404 because they are adjacent to navigable waters, and to exclude them because they are also adjacent to "headwaters" would vitiate Congress' intent to extend statuatory protection against water pollution as broadly as possible. The court remands the case for imposition of civil contempt sanctions.

Counsel for Appellant
Albert M. Ferlo Jr., Barry Neuman, Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Dennis I. Moore; Samuel T. Currin, Ass't U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530

Counsel for Appellee
David P. Voerman
Perdue, Voerman & Alford
P.O. Box 1534, New Bern NC 28560
(919) 638-2626

Joined by Winter and Russell, JJ.