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United States v. Riverside Bayview Homes, Inc.

Citation: 14 ELR 20365
No. Nos. 81-1405, -1498, 729 F.2d 391/20 ERC 2124/(6th Cir., 03/07/1984) Rev'd

The Sixth Circuit narrowly construes the Army Corps of Engineers' regulatory definition of "wetlands," issued pursuant to § 404 of the Federal Water Pollution Control Act (FWPCA), to exclude areas with wetlands vegetation not dependent on surface water inundation. The federal government initiated a § 404 enforcement proceeding against defendants after they failed to cease and desist from the unpermitted filling of their property, which the Corps contended was wetlands. The court interprets the Corps' wetlands definition to require the present flooding of the land, by waters flowing from navigable waters, sufficient to cause the growth of aquatic vegetation. The court rules that defendants' property is not wetlands subject to the Corps' jurisdiction because the property is not presently inundated and the source of the wetlands vegetation was the type of soil found on the property and not inundation from navigable water. The land has only been flooded on four to six occasions in the 80 years of the area's recorded history. The court explains its narrow construction of the Corps' regulation as necessary to avoid invalidating the Corps' wetlands definition. Although Congress may have intended to extend the FWPCA's protections beyond the traditional definition of "navigable waters," it is not clear that it intended to subject to the § 404 permitting requirements inland property that is rarely flooded, has been farmed in the past, and is presently platted and laid out for subdivision development. If Congress did intend to prohibit any development or change of such property, then its action raises a serious taking problem. The court compares defendants to owners of fast land adjacent to navigable waters and notes that, if the federal government wants to acquire such land, it must exercise its eminent domain authority and pay fair value for the property. Finally, the court dismisses as moot defendants' constitutional challenge to the Corps' regulation directing the district engineer not to process an after-the-fact permit application pending final disposition of litigation.

Counsel for Plaintiff
Leonard R. Gilman, U.S. Attorney
817 Fed. Bldg., 817 W. Lafayette St., Detroit MI 48226
(313) 226-7715

Thomas H. Pacheco, Anne S. Almy, Ellen J. Durkee
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2767

Counsel for Defendants
Richard K. Gienapp
11228 Whittier St., Detroit MI 48224
(313) 372-0900

Before: MERRITT and MARTIN, Circuit Judges; WEICK, Senior Circuit Judge.