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United States v. Bay-Houston Towing Co.

ELR Citation: 29 ELR 21011
Nos. No. 98-73252, 33 F. Supp. 2d 596/(E.D. Mich., 01/14/1999)

The court denies a peat harvesting company's motion for summary judgment on two Federal Water Pollution Control Act (FWPCA) claims brought against it by the federal government. The court first holds that the claim that the company is discharging peat bog drainage water through six separate ditch falls without an FWPCA §402 permit was not rendered moot by the state environmental agency's issuance of a national pollution discharge elimination system FWPCA §402 permit. The court next holds that there are sufficient facts to raise a triable issue as to whether the company's harvesting activities constitute a regulable discharge under the FWPCA. National Mining Ass'n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 28 ELR 21318 (D.C. Cir. 1998) does not exclude the company's harvesting activities from FWPCA regulation. The company's activities have nothing to do with National Mining Ass'n, which held that a regulation requiring a §404 permit for incidental fallback into a wetland exceeded the U.S. Army Corps of Engineers' §404 authority. In contrast to incidental fallback, the company removes materials from a bog and deliberately redeposits the materials within the bog at varying distances. Such activity is categorized as sidecasting and may be regulated under §404 as an addition to waters. Moreover, the company's spreading of sidecasted bog material from the side of the ditch into the bog for future harvest also involves relocating bog materials and, therefore, like sidecasting, could constitute an addition. Similarly, the company's discing of the bog also entails deliberately displacing bog materials and could constitute an addition. The court then holds that whether the company's activities may be categorized as discharges when the bog material is only temporarily displaced into other areas of the bog before being removed raises a genuine issue of material fact because a fact finder could conclude that a redeposit is made at each of the company's four stages of harvesting. The court last holds that the company's use of indigenous bog vegetation and clays to create haul roads and windrow foundations can constitute the discharge of fill materials under the FWPCA.

Counsel for Plaintiff
Joshua M. Levin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Steven D. Weyhing, Richard E. Rassel
Butzel & Long
150 W. Jefferson Ave., Ste. 900, Detroit MI 48226
(313) 225-7000