ELR Citation: ELR 20331
No(s). 90-1861 (4th Cir. Nov 8, 1991)

In an unpublished decision, the court upholds a district court order imposing injunctive relief and civil penalties against landowners that built roads without a Federal Water Pollution Control Act (FWPCA) §404 permit on 50 acres of wetlands to create hay fields. The landowners brought a suit challenging the U.S. Environmental Protection Agency's (EPA's) compliance order under §404. In the liability phase of the trial on the government's counterclaim, a jury found that the property was wetlands adjacent to waters of the United States and that the landowners had discharged pollutants onto their wetlands. The district court allowed the landowners to continue to grow hay on the parcels that they had already cleared, required the parties to agree to a restoration plan for 25 acres in transition or allow it to revegetate naturally, required the undisturbed wetlands to remain undisturbed, and noted that the landowners could change the use of any of the parcels upon permit approval. The court first holds that EPA had independent enforcement authority over §404 violations. The court next holds that EPA's wetlands delineation manuals are interpretive rules not subject to Administrative Procedure Act notice-and-comment requirements. Further, EPA was free to apply its own manual or another agency's manual. The court holds that the landowners' parcels are "adjacent" wetlands under the FWPCA, which does not limit adjacency to land that actually borders waters of the United States. The court holds that man-made, nontidal drainage ditches may be waters of the United States when they are constructed in wetlands. The court holds that the landowners' alleged good-faith belief that EPA's administrative orders were invalid is not a defense. The court also holds that the lack of administrative procedures to contest EPA's orders does not violate the landowners' due process rights. Further, the court holds that the government is not estopped from prosecuting the landowners under §404 because the landowners made no showing of affirmative misconduct by the government. Finally, the court holds that the district court did not abuse its discretion in denying the landowners' Federal Rule of Civil Procedure 60(b) motion to be relieved of the final judgment in light of newly discovered evidence. A regulatory guidance letter issued by the Corps of Engineers does not constitute newly discovered evidence because it is merely a guidance document.

[District court decisions are published at 20 ELR 21299 and 21 ELR 20830.]

Counsel for Plaintiffs-Appellants
Richard R. Nageotte
Nageotte, Krein & Gray
385 Garrisonville Rd., Ste. 201, Stafford VA 22554
(703) 659-5050

Counsel for Defendants-Appellees
David A. Carson, Apphia T. Schley
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000