ELR Citation: ELR 20507
No(s). 1:00 CV 0219 (N.D. Ind. Mar 11, 2002)

The court holds that a state environmental agency did not violate the Clean Water Act (CWA) when it repaired a dam and caused sediment to be washed downstream. The agency raised the dam to fix the plumbing of an intake pond. When the dam was raised, sediment allegedly washed downstream killing fish and leaving muddy residue on the property of riparian landowners. Several individuals and organizations sued the agency alleging that it violated the CWA by either discharging dredged material without a CWA §404 discharge permit or by discharging pollutants without a CWA §402 permit. The court first holds, however, that the agency was not required to have a CWA §404 permit when it repaired the dam. Although the discharge of dredged materials includes dredging by means of hydraulics, such as raising a dam, the repair of the dam falls within the CWA §404(f)(1)(b) maintenance exception, and the repair did not result in any recapture that would exclude the agency's activities from the maintenance exception. The court next holds that the agency did not need a CWA §402 permit when it repaired the dam. A dam qualifies as a point source from which a discharge can occur, and material removed from a river and subsequently redeposited can qualify as a pollutant under the CWA. Nevertheless, to show a discharge of excavated material replaced into the same body of water there must be a showing of active removal of the material and its redeposit. The individuals and organizations failed to make such a showing in this case. The repair of the dam led to the churning or movement of sediment, but this did not rise to the level of discharge that requires a CWA §402 permit. The court finally holds that the individuals' takings claims are not ripe, and their procedural due process claims fail.

Counsel for Plaintiffs
Neil Lewis
Lewis & Associates
9487 W. State Rd. 120, Orland IN 46776
(219) 829-6729

Counsel for Defendant
Sierra Sutts
Attorney General's Office
State House, Indianapolis IN 46204
(317) 232-6201

Lee, J.