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United States v. Akers

Citation: 17 ELR 20702
No. No. Civ. S-84-1276 RAR, 651 F. Supp. 320/25 ERC 1609/(E.D. Cal., 01/08/1987) Gov't's motion for summary judgment granted

The court rules that the Army Corps of Engineers' permit jurisdiction under § 404 of the Federal Water Pollution Control Act extends to artificial wetlands, or those wetlands that are dependent upon man-made irrigation and flood control structures for their water supply. It is the nature of the land in question and not the manner in which the wetland was created or is maintained that determines whether the land falls within the purview of § 404. In enacting the statute, Congress intended to protect the environment to the greatest extent possible. The court then holds that the definition of wetlands set forth in § 404's implementing regulations does not exclude wetlands that receive their water supply from man-made structures or conduits. Instead, the regulatory definition excludes upland areas that demonstrate an unusual presence of wetland vegetation. Finally, the court holds that the Corps' jurisdiction over man-made wetlands depends on the nature of the land and not on who controls the artificial structures. Such a holding is in accord with the relevant statutory and regulatory language, congressional intent, and the existing case law.

Counsel for Plaintiff
Karen L. Patterson, Ass't U.S. Attorney
3305 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 440-2331

Counsel for Defendant
Larry T. Winberry
Giattina & Winberry
Suite 180, 777 Campus Commons Rd., Sacramento CA 95825
(916) 920-1100