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United States v. Zanger

ELR Citation: 22 ELR 20231
Nos. No. C 89 20624 JW, 767 F. Supp. 1030/(N.D. Cal., 05/21/1991)

The court holds that a tourist complex and its owner violated Federal Water Pollution Control Act (FWPCA) §301(a) by discharging dredged or fill material into a nearby creek that is a navigable water of the United States without a §404 permit issued by the U.S. Army Corps of Engineers. The court first holds that the creek is a water of the United States, because its use, degradation, or destruction could affect interstate commerce. The creek is used for recreational purposes, steelhead trout can be taken from the creek, commercial fishing has occurred on the creek, and the creek is also a tributary of other waters of the United States. The court next holds that the defendants' act of filling in and grading or changing of the bottom elevations of the creek constituted the discharge of a pollutant without a permit in violation of §301 and the Corps' regulations. The record shows that defendants placed fill in the creek to protect their property and to develop recreational and commercial uses. Finally, the court holds that defendants' "creek work" does not qualify for either the "upland soil and water conservation practices" or the "maintenance of certain structures" exemptions under §404(f). The former exemption is limited to farming and ranching operations, and the latter exemption is not available because there were no structures in the creek that defendants' filling activities could have been designed to maintain.

Counsel for Plaintiff
James A. Coda, Ass't U.S. Attorney
450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

Counsel for Defendants
Faber L. Johnston
13434 Old Oak Way, Saratoga CA 95070
(408) 741-1318