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Minnehaha Creek Watershed Dist. v. Hoffmann

Citation: 8 ELR 20638
No. No. 3-76-Civ.-149, 449 F. Supp. 876/12 ERC 1407/(D. Minn., 04/18/1978)

In a suit challenging the Army Corps of Engineers' assertion of regulatory jurisdiction over an intrastate lake and its outlet creek, the court rules that the lake and creek, although both navigable in fact, are not navigable waters of the United States within the meaning of § 10 of the Rivers and Harbors Act because they are not part of an interstate waterway which serves as a path for commerce. In addition, the court holds invalid the Corps' dredge and fill permit regulations promulgated under § 404 of the Federal Water Pollution Control Act (FWPCA) to the extent they purport to govern the placement of rip-rap along shorelines and the construction of dams in the lake and creek. These activities do not constitute discharge of pollutants within the meaning of § 301 of the FWPCA and therefore are outside the scope and regulatory intent of the Act and are not subject to the Corps' permit authority under § 404. The court grants plaintiffs' motion for summary judgment and enjoins the Corps from asserting regulatory jurisdiction over these waters.

Counsel for Plaintiffs
Raymond A. Haik
Popham, Haik, Schnobrich, Kaufman & Doty, Ltd.
4344 IDS Center, Minneapolis MN 55402
(612) 335-9331

Glenn E. Purdue
LeFevere, Lefler, Pearson, O'Brien & Drawz
1100 First National Bank Bldg., Minneapolis MN 55402
(612) 333-0543

Richard A. Hassel, Dobson West
Wright, West & Diessner
2000 Midwest Plaza Bldg., Minneapolis MN 55402
(612) 333-0417

Counsel for Plaintiff in Intervention Minnesota Dept. of Natural Resources
Steven G. Thorne, Spec. Ass't Attorney General
102 State Capitol, St. Paul MN 55155
(612) 296-2591

Counsel for Defendant
Stephen G. Palmer, Ass't U.S. Attorney
596 U.S. Courthouse, 110 S. 4th St., Minneapolis MN 55401
(612) 332-8961

Donald W. Fowler
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2793