Coalition for the Environment, St. Louis Region v. Volpe

No. 72-C-32(1) (E.D. Mo. June 2, 1976)

ELR Digest

The parties agree to a settlement extending Corps of Engineers jurisdiction under the Refuse Act to the ordinary high water mark of navigable rivers, guaranteeing specificity in NPDES permits issued in Missouri, and retaining the private defendants' riverfront land in an essentially natural condition. Under the Refuse Act, 33 U.S.C. § 401, ELR 41141, Corps jurisdiction extends up navigable rivers and their tributaries to their ordinary high water mark until intersection with an obstruction that prevents further landward flow. The Earth City levee in Creve Coeur Creek was constructed within the ordinary high water mark. However, the state and private defendants have not acceded to extension of the Corps' jurisdiction, supra, and plaintiffs agree not to contend that the Corps' jurisdiction, including requiring preparation of an environmental impact statement, along the levee extends landward of the ordinary high watrer mark.

Plaintiffs, as persons eligible to receive notice under § 402(b)(3) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1342(b)(3), ELR 41101, are entitled to be informed by the Missouri Clean Water Commission in notices for permit applications that pollutant discharges will not exceed those listed in the notice and that effluent temperatures will be within the seasonal normal range. Each person receiving notice shall be informed of the type of discharge, the normal daily flow, whethere the facility was built or enlarged after October 18, 1972, the water uses of receiving water when the discharges exceed 500,000 gallons per day, "understandable" effluent limitation entries, and reasons for any proposed permit modification. These persons shall also receive a list of permit application notices whose issuance is delayed by the Commission.

The private defendants agree to retain their land along the Missouri River in an essentially natural state and allow non-vehicular public access to the land, subject to the right to remove dirt and construct a barge terminal and transportation facilities for the Earth City development to the terminal. These defendants also agree to pay costs and $55,000.00 in attorneys' fees to the plaintiffs.

The full text of the Settlement Agreement and final decree are available from ELR (17 pp. $2.25, ELR Order No. C-1078).

Counsel for Plaintiffs
Lewis C. Green
Green, Hennings & Henry
Boatmen's Bank Bldg.
St. Louis MO 63102
(314) 231-4181

Counsel for Defendants
William G. Cole Asst. U.S. Attorney
114 Market St.
St. Louis MO 63101
(314) 425-4000

Counsel for Missouri Highway Commission
Thomas Pearson
Dept. of Public Safety
2634 Industrial Dr.
Jefferson City MO 65101
(314) 751-4161

Counsel for Earth City Corp.
Paul R. Ferber
Linclay Development Corp.
13100 Manchester Rd.
Des Peres MO 63131
(314) 291-7100

Meredith, C.J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]