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Informed Citizens United, Inc. v. USX Corp.

Citation: 29 ELR 21166
No. No. CIV.A. G-98-190, 36 F. Supp. 2d 375/(S.D. Tex., 02/09/1999)

The court grants summary judgment to a company that allegedly violated its Federal Water Pollution Control Act (FWPCA) § 404 permit by filling wetlands in contradiction of its mitigation plan. The U.S. Army Corps of Engineers authorized the company's filling and mitigation plan under Nationwide Permit No. 26. The mitigation plan stated that certain company-owned wetlands would only be filled when demand was sufficient to require expansion of the company's development project. An environmental group claimed that the company filled the wetlands before necessary expansion of the development project. The court first holds that it has jurisdiction over the case under the FWPCA. A continuing violation exists for FWPCA purposes until illegally dumped material has been removed. The court next holds that the group lacks standing to litigate its claim. The group's affidavits and allegations concerning a group member's diminished birdwatching due to the company's filling of the wetlands fall far short of rising to the level of proof necessary to demonstrate a cognizable, redressable injury. The court then holds that the company did not violate its FWPCA § 404 permit. The company received a valid permit to fill the wetlands at issue, and the Corps unequivocally stated that the company filled the wetlands in accordance with its permit's conditions. Further, the project engineer responsible for reviewing the company's permit application and mitigation plan stated that the timing of the fill was not pertinent to granting the permit or necessary to ensure that the proposed activity would not have more than a minimal adverse effect on the environment.

Counsel for Plaintiffs
James B. Blackburn Jr.
Blackburn & Carter
3131 Eastside St., Ste. 450, Houston TX 77098
(713) 524-6628

Counsel for Defendants
James F. Allen
Squire, Sanders & Dempsey
6250 Chase Tower
600 Travis St., Houston TX 77002
(713) 546-5850