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United States v. DeFelice

ELR Citation: 11 ELR 20505
Nos. No. 80-3397, 641 F.2d 1169/15 ERC 1896/(5th Cir., 04/09/1981)

Affirming a district court, the Fifth Circuit Court of Appeals rules that a private artificial canal is within the Army Corps of Engineers' jurisdiction where the canal is capable of commercial navigation and is subject to the ebb and flow of the tide. Pursuant to a prior court order acknowledging his right and title to the canal, appellant began to reconstruct a dam across it in order to gain access to his property. The Corps sued in district court, contending that appellant violated the Federal Water Pollution Control Act and the Rivers and Harbors Act by failing to obtain pollution discharge and dam construction permits. The lower court ordered appellant to remove the fill material and restore the canal to its prior condition. On appeal, the court rules that the Corps possesses regulatory jurisdiction even though the canal is artificial and privately owned. The fact that the canal is subject to the ebb and flow of the tide, flows into the Gulf of Mexico and is thus part of a continuous interstate waterway system, and is capable of supporting commercial navigation renders the canal navigable by operation of law and therefore subject to the Corps' jurisdiction. The court further holds that since the prior dam had not been in existence for more than nine years and there had been changes in circumstances surrounding the site, appellant was required to obtain a permit from the Corps prior to commencing reconstruction of the dam.

[For a discussion of the briefs filed in this case, see ELR PEND. LIT. 65679 — Ed.]

Counsel for Appellant
Vance E. Ellefson
Lugenbuhl, Larzelere & Ellefson
600 Carondelet St., Suite 602, New Orleans LA 70130
(504) 523-6066

Counsel for Appellee
A. Donald Mileur, Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-6821

Hattie M. Broussard, Ass't U.S. Attorney
500 Camp St., New Orleans LA 70130
(504) 589-3518

Before BROWN, POLITZ, and TATE, Circuit Judges.