ELR Citation: ELR 20046
No(s). 3-90-0799-H (N.D. Tex. May 3, 1990)

The court holds that draining a wetland is a regulated activity under Federal Water Pollution Control Act (FWPCA) §404(b) and requires a permit when it presents the threat of significant alteration or destruction of a wetland. A citizens' group and a Texas city sought declaratory and injunctive relief, challenging the draining of artificially created ponds on the proposed site of a landfill expansion. The Army Corps of Engineers and the Environmental Protection Agency (EPA), fully apprised of the landfill operator's drainage activities, determined that they did not have legal jurisdiction to require a permit where the only activity conducted on a legally designated wetland is draining or dewatering. The court first holds that only the citizens' group, and not the Texas city, has representational standing under the citizen suit provisions in FWPCA §505(a)(1). While the citizens' group has established the requisite injury for standing, namely, that the loss of the ponds would impact its members' enjoyment of the wildlife, aesthetics, open space, ecology, and other values provided by the wetland, the multifarious services the city provides its residents do not align its mission closely enough with the interests the city seeks to protect. The court next holds that the FWPCA, its regulations, and relevant case law establish that draining is a regulated activity under §404(b) and requires a permit where such activity presents the threat of significant alteration or destruction of a wetland. Although the FWPCA and its regulations have been reasonably interpreted to focus primarily on discharges of dredged or fill material into a protected water body, case law indicates that activities that will significantly alter or destroy a wetland require a permit from the Corps. Moreover, the FWPCA and its regulations exhibit a strong policy of wetlands preservation consistent with Congress' intent, evidenced in §404, to ensure that significant alterations to the nation's wetlands were not undertaken without an evaluation by the Corps and EPA. To permit a landowner to avoid §404(b)'s process by completely draining a wetland and then claiming that no permit is necessary because no wetlands are involved would stand logic on its head. The landfill operator's plan to continue draining the ponds thus presents a clear violation of the permit requirements of §404(b), and the Corps' and EPA's determination that §404(b) does not apply is erroneous. Thus, because there is a substantial likelihood plaintiff citizens' group will succeed on the merits, will suffer irreparable injury if an injunction is not granted, its injury outweighs any damage to defendant landfill operator, and an injunction will not disserve the public trust, the court enjoins the further draining of the ponds until a §404(b) permit is obtained, or until final judgment by the Corps and EPA is entered.

Counsel for Plaintiffs
Frederick W. Addison, Elizabeth E. Mack
Locke, Purnell, Rain & Harrell
2200 Ross Ave., Ste. 2200, Dallas TX 75201
(214) 740-8000

Counsel for Defendants
Michael D. Rowe
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Rebecca Gregory
U.S. Attorney's Office
1100 Commerce St., Ste. 16G28, Dallas TX 75242-1699
(214) 767-0951

Jeff Civins
Vinson & Elkins
First City Centre, 816 Congress Ave., Austin TX 78701-2496
(512) 495-8400