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United States v. Larkins

Citation: 17 ELR 20783
No. No. 84-0044-P(J), 657 F. Supp. 76/25 ERC 1911/(W.D. Ky., 01/16/1987)

The court holds that a parcel of land on which dikes and levees were built without a Federal Water Pollution Control Act (FWPCA) § 404 permit from the Army Corps of Engineers is wetlands and orders restoration and payment of a $40,000 civil penalty. The court first holds that the land is wetlands. Although defendants refused to allow an on-site inspection of the property prior to the completion of the construction, as a result of which vegetation was removed and drainage patterns altered, testimony regarding soil analysis and interpretation of aerial photographs proved by a preponderance of the evidence that the area was wetlands within the meaning of the Corps' regulations. The court also holds that defendants' use of earthmoving equipment to construct earthen dikes and levees constitutes a discharge.

The court holds that when an FWPCA § 404(f) exemption is claimed, the burden of proof falls on the party claiming the exemption, observing in a note that the cases have been consistent in so placing the burden of proof even though no court has explicitly ruled on the issue. The court holds that defendants are not entitled to an exemption for harvesting forest products, promoting upland soil conservation, and construction of a stock pond, since the land was not subject to cultivation prior to defendants' construction of the dikes and levees. The court holds that the federal government is entitled to restoration of the site by the defendants, since the defendants knew of the permit requirement before they began construction yet chose to proceed with the construction and deny the Corps access to the site for inspection. Finally, the court imposes a civil penalty of $40,000 on the two defendants, with the proviso that the penalty will be lifted if defendants complete the restoration within six months.

Counsel for Plaintiff
David Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2741

Counsel for Defendant
William Phillips
Maple St., Murray KY
(502) 753-8900