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Buttrey v. United States

Citation: 14 ELR 20152
No. No. 81-263, 573 F. Supp. 283/19 ERC 2074/(E.D. La., 09/28/1982) Judgment for defendants

The court rules that the Corps of Engineers abused its discretion in finding jurisdiction under §404 of the Federal Water Pollution Control Act over wetlands filled before the current regulations became effective, and under §10 of the Rivers and Harbors Act over a nonnavigable slough. The court reviews the Corps' jurisdictional determination on the record. The wetlands in question were filled before September 1, 1976, when the corps' regulations gave it jurisdiction over wetlands adjacent to navigable waters but not wetlands adjacent to tributaries of navigable waters. The court holds that the wetlands were adjacent to Gum Bayou, a nonnavigable tributary of the West Pearl River, and not adjacent to the river itself. The court rejects the Corps' arguments that Gum Bayou is an extension of the subject wetlands rather than a tributary stream. The court also rules that under law in effect when the suit was brought, Buttrey did not need to receive state water quality certification before filling the area.

The slough in question was excavated without a permit to form a pond. The court first holds that the definition of navigability under the Rivers and Harbors Act is a judicial rather than administrative function. The court rules that sporadic use of the slough will not support a finding of navigability and the Corps' determination that the slough is at least potentially navigable-in-fact is not supported in the record. Further, the Corps was arbitrary in finding that the slough is within the bed of the navigable West Pearl River. Although the slough is inundated when the river floods, the ordinary high-water mark for nontidal waters does not encompass peak flow or flood stages. The Corps' data and methodology used to determine the ordinary high watermark are of questionable validity, and the resulting determination, which would include a four-mile-wide swath of forested swamp in the riverbed, is arbitrary and unreasonable.

Counsel for Plaintiffs
Charles K. Reasonover, Pamela Pryor Mehle, Howard J. Ettinger
Deutsch, Kerrigan & Stiles
4700 One Shell Sq., New Orleans LA 70139
(504) 581-5141

Counsel for Defendants
Nancy S. Bryson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701