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United States v. Eugene Sand & Gravel, Inc.

Citation: 6 ELR 20733
No. No. 75-258, (D. Or., 08/24/1976)

When the Willamette River breached its bank in 1971, defendant's property onto which it flowed became subject to the federal government's navigation servitude. Defendant was therefore required under the Rivers and Harbors Act of 1899 to apply for and obtain a Corps of Engineers permit before "repairing" or "diking" the breach. A navigable river is navigable wherever it flows, and the fact that the main channel of the river did not shift through the bank is immaterial. The Corps has no duty to consider an after-the-fact permit application, and may enforce either the removal or the reconstruction of fill material discharged by the riparian owner in the course of repairing the pre-existing bank which may eventually obstruct the river's navigable capacity through erosion or collapse. Defendant is therefore ordered to reconstruct the dike according to government specifications. The court also assesses a $500 civil penalty under the Federal Water Pollution Control Act Amendments of 1972 for damage to fishery resources and directs that it be paid to the Oregon Department of Fish and Wildlife.

Counsel for Plaintiff
Sidney I. Lezak, U.S. Attorney
Thomas C. Lee
Jack Collins Asst. U.S. Attorneys
P.O. Box 71
Portland OR 97207
(503) 221-2765

Counsel for Defendant
John E. Jacqua
Jacqua & Wheatley
825 East Park St.
Eugene OR 97401
(503) 686-8485