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United States v. Riverside Bayview Homes, Inc.

Citation: 7 ELR 20445
No. No. 77-70041, (E.D. Mich., 02/24/1977)

The court enjoins filling of land below a specified contour line because the land has been periodicaly inundated, supports wetland vegetation, and thus comes within the regulatory scope of the Corps of Engineers. Plaintiff seeks to enjoin filling on the unfilled portion of defendant's 80-acre parcel, claiming that it constitutes "freshwater wetlands." The property fits one half of the regulatory definition of wetlands, as it is characterized by the prevalence of vegetation that requires saturated soil conditions. The property is contiguous to a navigable water, Black Creek, a tributary of Lake St. Clair, as shown by the continuity of vegetation to the water. Expert testimony shows, however, that the contiguous navigable waters have not contributed to the presence of the wetland vegetation. Although the Corps regulation does not define "periodic," the testimony shows that the property in question has been inundated only 17 percent of the time during the 80 years of recorded lake levels. The court determines that periodic means at least five instances and establishes a corresponding contour line below which filling is enjoined.

For moving papers in this case, see ELR 65465.

Counsel for Plaintiff
Samuel J. Behringer, Ass't U.S. Attorney
817 Federal Bldg., 231 W Lafayette, Detroit MI 48226
(313) 226-7715

Melvyn B. Kalt, Ass't District Counsel
Army Corps of Engineers, P.O. Box 1027, Detroit MI 48231
(313) 226-6821

Counsel for Defendant
Robert P. Dank
Dank, Kaser & Smith
44 First St., Mount Clemens MI 48043
(313) 469-4100