Jump to Navigation
Jump to Content

United States v. Fabian

ELR Citation: 37 ELR 20083
Nos. No. 2:02-CV-495, (N.D. Ind., 03/29/2007)

A district court held that a landowner is liable under Clean Water Act §301 for filling wetlands without a permit. Applying Justice Kennedy's test in Rapanos v. United States, 126 S. Ct. 2208, 36 ELR 20116 (2006), the court held that the wetlands at issue are jurisdictional. The United States has produced evidence that the ditch adjacent to the wetland at issue is a navigable body of water, and the landowner failed to adequately refute that evidence. In addition, the landowner "added" a pollutant to waters of the United States. The court rejected the landowner's argument that his activities fell under the incidental fallback exception because he failed to demonstrate that the material fell back into substantially the same place as the initial removal. The landowner also failed to comply with a prior order from the U.S. Environmental Protection Agency requiring him to restore the filled wetlands. However, the court denied the U.S. government's summary judgment motion for injunctive relief and damages at this stage of the litigation.