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United States v. Hallmark Constr. Co.

Citation: 29 ELR 20274
No. 97 C 3682, 14 F. Supp. 2d 1065/(N.D. Ill., 09/10/1998)

The court holds in a motion for reconsideration that the United States is the proper plaintiff in an action against a landowner for allegedly filling a five-acre isolated wetland without obtaining a permit under Federal Water Pollution Control Act (FWPCA) § 404. In a previous July 23, 1998, summary judgment order, the court found that the United States was not a proper plaintiff because the U.S. Army Corps of Engineers had no authority under FWPCA § 404 to commence a civil action for a permitless discharge. The court first holds that the U.S. motion for reconsideration is properly before the court. The government's reiteration and clarification of its prior argument that the Corps has FWPCA authority for permitless discharges does not constitute a new legal theory. The court next holds that FWPCA § 404 does grant the Corps authority for enforcement of permitless discharges, making the United States a proper party plaintiff. Because the Corps has the authority both to require permits for areas under its control and to issue cease and desist orders for permitless activity in these areas, it has the authority to bring civil actions for permitless discharges. Congress gave the Corps responsibility for the protection of wetland areas and navigable waters, and this responsibility necessarily carries with it the authority to stop activity that endangers or pollutes the areas in question.

[Prior decisions in this litigation are published at 28 ELR 21438 and 29 ELR 20168.]

Counsel for Plaintiff
Christopher E. Tracy
U.S. Attorney's Office
Everett M. Dirksen Bldg.
219 S. Dearborn St., 5th Fl., Chicago IL 60604
(312) 353-5300

Counsel for Defendant
Johnine J. Brown
Brown Environmental Group
35 E. Wacker Dr., Ste. 1356, Chicago IL 60601
(312) 236-1450