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United States v. Fort Pierre, City of

Citation: 14 ELR 20209
No. No. 81-3040, 580 F. Supp. 1036/20 ERC 1796/(D.S.D., 12/30/1983)

The court rules that a slough area separated by a barrier from and without a hydrologic connection to a navigable water is a wetland adjacent to waters of the United States and subject to Federal Water Pollution Control Act (FWPCA) § 404 permit requirements. First, the court holds that the slough area satisfies the three regulatory elements of a wetland: surface or groundwater inundation; the presence of wetlands-adapted vegetation; and wetlands-type soil conditions. Next, the court holds that despite an 820- to 1,400-foot-wide barrier between the slough and the Missouri River and the absence of a hydrological connection between the slough and navigable waters of the river, the slough is "adjacent to" a water of the United States. Regulations interpreting the FWPCA specifically provide that adjacent wetlands may be separated from water bodies by natural or man-made barriers and that a hydrologic connection to the navigable water is unnecessary if the "surface or groundwater" inundation characteristic is met. The court then holds that defendant violated § 404 permit requirements by engaging in fill activities in the slough without a permit. It holds that the filling was not covered by a nationwide permit and rejects defendant's defense that plaintiff's previous fill activity in the area estops it from suing under the FWPCA. The court further holds that the Corps of Engineers' prosecutorial discretion and the strict liability provision of the FWPCA render meritless defendant's defenses of selective prosecution and a public health and welfare interest in filling the allegedly polluted slough. The court also holds that the Corps need not comply with Administrative Procedure Act adjudicatory hearing requirements in the § 404 permitting process. Further, the city had adequate notice of Fish and Wildlife Service objections to the fill. The court enjoins defendant from violating the FWPCA and orders it to file proposed restoration plans within 40 days.

Counsel for Plaintiff
Dean K. Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2216

David L. Zuercher, Ass't U.S. Attorney
425 Fed. Bldg., Pierre SD 57501
(605) 224-5402

Counsel for Defendants
Charles M. Poches Jr.
Poches & Lee Law Offices
P.O. Box 617, Fort Pierre SD 57532
(605) 223-2572

Horace R. Jackson
Lynn, Jackson, Shultz & Lebrun
P.O. Box 8110, Rapid City SD 57701
(605) 342-2592

John Guhin, Ass't Attorney General
Rm. B-102, Anderson Bldg., Pierre SD 57501
(605) 773-3215