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Greenfield Mills, Inc. v. Macklin

ELR Citation: 34 ELR 20022
Nos. No. 02-1863, (7th Cir., 03/19/2004) Rev'd in part and aff'd in part

The court holds that the Indiana Department of Natural Resources violated Clean Water Act (CWA) §404 when it discharged dredged material from a supply pond into a river without a permit. The dredging activity did not satisfy CWA §404(f)(1)'s maintenance exemption because a trier of fact could reasonably conclude that the purpose of drawing down the water in the supply pond was not to perform maintenance on either the pump or the dam, but rather to dredge the supply pond. Likewise, a trier of fact could reasonably conclude that the department's actions fall within the CWA's recapture provision and are subject to the §404 permit requirement. The lower court, therefore, erred in granting summary judgment to the department on landowners' CWA claim. But the lower court properly barred the landowners' takings and due process claims because they failed to exhaust possible state remedies.

[A prior decision in this litigation is published at 32 ELR 20507.]

[Counsel not available at this printing.]