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United States v. Fleming Plantations

Citation: 9 ELR 20103
No. Nos. 78-2110, -3111, 12 ERC 1705/(E.D. La., 12/22/1978)

The court finds that defendants have violated §§ 301 and 404 of the Federal Water Pollution Control Act by discharging pollutants (dredged materials) without a permit from the Corps of Engineers, enjoins further construction of two levees and a drainage ditch, and orders restoration of a fresh-water wetland to its original condition. Concluding that the definition of "wetlands" for botanical purposes and for purposes of the Corps regulations are not significantly different, the court rejects defendants' claim that the Corps' 1975 definition of areas within its permitting jurisdiction under § 404 was void for vagueness. On the contrary, the Corps' interpretation was valid and encompassed the area in question at the time the dredged materials were discharged thereon. In addition to enjoining the modification of any wetlands in the subject area and precluding further construction and maintenance of the spoil banks and levees, defendants are ordered to restore the illegally filled wetlands to their original condition by whatever means necessary. In light of this ruling, plaintiffs' separate claim for relief under the Rivers and Harbors Act is not addressed. The court does, however, retain jurisdiction for the assessment of civil penalties.

Counsel for Plaintiffs
Robert Boese, Ass't U.S. Attorney
Hale Boggs Fed. Bldg., 500 Camp St., New Orleans LA 70130
(504) 589-3545

Stanley Millan
New Orleans Dist., Army Corps of Engineers
Foot of Prytania St., New Orleans LA 70118
(504) 865-1121

Counsel for Defendants
Ralph Alexis, III
Porteous, Toledano, Hainkel & Johnson
704 Carondelet St., New Orleans LA 70130
(504) 581-3838

Counsel for Intervening Plaintiffs Orleans Audubon Society and Fund for Animals, Inc.
Patrick Rankin
Dufour, Levy, Marx, Lucas & Osborne
1006 First Nat'l Bank of Commerce Bldg., New Orleans LA 70112
(504) 529-5551