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United States v. Southern Inv. Co.

Citation: 19 ELR 21276
No. Nos. 87-2664EA, 88-1129EA, 876 F.2d 606/29 ERC 1646/(8th Cir., 05/25/1989)

The court holds that defendant must remove fill and refuse that it placed in a backwater channel on its property, and may not deposit additional fill or refuse there. The court reviews the district court's findings for clear error. The court first holds that defendant's property is located below the ordinary high water line (OHWL) and is thus a water of the United States subject to Corps of Engineers jurisdiction under the Refuse Act, the Rivers and Harbors Act (RHA), and the Federal Water Pollution Control Act (FWPCA). The court next holds that part of the property above the OHWL is a wetland and is thus subject to Corps jurisdiction under the FWPCA, despite the possibility that it was Corps activity that made it a wetland. The court remands the question of what part of the filling of wetlands above the OHWL occurred after July 25, 1975, when the Corps acquired FWPCA jurisdiction over such filling. The court holds that substantial filling took place in a water of the United States after December 18, 1968, when the Corps acquired RHA jurisdiction over such filling. The court holds that although the Corps chose not to use defendant's property for a flowage easement, it retained its RHA jurisdiction over the property. The court also holds that defendant discharged fill into navigable waters, namely the channel below the OHWL, in violation of the Refuse Act. The court holds that the Corps did not waive its jurisdiction by deciding not to use the property for a flowage easement, and that even if the Corps told defendant that it could fill the channel, the removal action is not estopped because the Corps engaged in no affirmative misconduct. The court holds that defendant may not raise a takings claim as a defense to an FWPCA enforcement action. The court holds that part of the fill was placed before 1968, and thus is not subject to Corps jurisdiction under the RHA. Finally, the court holds that the district court did not abuse its discretion in offering defendant an alternative to removing much of the fill, namely digging a drainage ditch and retaining wall along the filled channel. To allow wetland restoration, however, the ditch must be connected to the river via a pipe.

Counsel for Appellant
Charles R. Nestrud
House, Holmes & Jewell
1500 Tower Bldg., Little Rock AR 72201
(501) 375-9151

Counsel for Appellee
Blake A. Watson
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2772

Before McMILLIAN and BEAM, Circuit Judges, and HARPER,* Senior District Judge.