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United States v. Larkins

ELR Citation: 18 ELR 21416
Nos. No. 87-5300, 852 F.2d 189/28 ERC 1001/(6th Cir., 07/22/1988) Aff'd

The court holds that a parcel of land on which dikes and levees were built without a permit under §404 of the Federal Water Pollution Control Act (FWPCA) is a "wetland" within the meaning of the Corps of Engineers' regulations, and defendants are not entitled to a farming or silviculture exemption under FWPCA §404(f). The court first holds that the land in question is wetlands. The district court was not required to examine the amount or frequency of soil saturation in making its determination, since the Corps' wetland regulation requires only that saturation be sufficient to support wetland vegetation. The evidence presented at trial supported a finding that the land supported such wetland vegetation. The court holds that defendants are not entitled to an exception under FWPCA §404(f) for normal farming or silviculture. The land had not previously been used as farmland, and defendants' removal of trees during the landclearing process does not constitute normal harvesting. The silviculture exception in §404(f) does not apply to the activity of clearing timber in order to use the land for non-wetlands row crop cultivation.

A concurring judge specifically notes that the court is not deciding whether the Corps in fact has jurisdiction over wetlands adjacent to nonnavigable bodies of water such as the creek in this case, since that issue was not raised here.

[The district court's decision is published at 17 ELR 20783.]

Counsel for Defendants-Appellants
J. William Phillips
Fifth St., Murray KY 42071
(502) 753-8900

Counsel for Plaintiff-Appellee
Joseph Whittle, U.S. Attorney
Bank of Louisville Bldg., 510 W. Broadway, 10th Fl., Louisville KY 40202
(502) 582-5911
James L. Kerr, David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before: MERRITT, KENNEDY, and KRUPANSKY, Circuit Judges.