United States v. Riverside Bayview Homes, Inc.

Nos. 81-1405,-1498 (6th Cir. June 8, 1984)

The court denies the government en banc consideration of its earlier opinion, 14 ELR 20365, which set limits on the reach of the Army Corps of Engineers' jurisdiction over wetlands under Federal Water Pollution Control Act § 404.

Counsel are listed at 14 ELR 20365, 20366.

Before Merritt, Martin, and Weick, JJ.

[14 ELR 20617]

Per curiam:

Order Denying Petition For Rehearing En Banc

No member of the Court having moved for en banc consideration of this case and the panel being of the view that reconsideration is not warranted, the government's petition, as supported by amicus curiae organizations, is hereby denied.

By an unusual construction of the words "navigable waters" in the Clean Water Act, the government and organizations filing as amicus curiae would apparently have the Court by injunction prevent the owner from using low lying land areas where water sometimes stands and where vegetation requiring moist conditions grows. Such low lying lands would be converted into "navigable waters" by the Court without regard to either their proximity to navigable waters, streams or seas or the inundation of such lands by such navigable waters. Under such a construction low lying backyards miles from a navigable waterway would become wetlands. Neither the government nor amicus suggests an adequate limiting principle. Such a construction is over broad and inconsistent with the language of the Act in question, and the Court declines to adopt such a construction.