ELR Citation: ELR 20615
No(s). CV 5-90-170 (D. Minn. Sep 23, 1992)

The court holds that the United States is entitled to summary judgment on a residential land developer's appeal from the U.S. Army Corps of Engineers' (the Corps') denial of the developer's application for an after-the-fact (ATF) permit under §404 of the Federal Water Pollution Control Act (FWPCA), related to the developer's unlawful discharge of dredge and fill material into wetlands adjacent to "waters of the United States." The developer purchased 16 parcels of real property that had been platted for development by a Minnesota county, and for which the county zoning board approved fill applications in the development. After the Corps became aware of the developer's fill activities in apparent violation of the FWPCA, the Corps ordered the developer to stop construction and apply for an ATF permit under the FWPCA. The Corps, which did not request comments from the county zoning board, subsequently denied the developer's ATF permit application and ordered him to restore the wetlands to their pre-violation condition. Thereafter, the Corps extended the restoration date at the developer's request, and after the Corps denied the developer's second mitigation proposal, the developer appealed and the government counterclaimed that the developer violated FWPCA §§311(a) and 404(a).

The court first holds that the Corps is entitled to summary judgment as to the developer's claim that the Corps unlawfully withheld an applicable nationwide permit under the FWPCA from the developer, because the developer failed to carry his burden in overcoming the government's summary judgment motion. Although the developer raised this issue in his complaint and the United States addressed the claim in its motion for summary judgment, the developer did not discuss, or present any facts relevant to this issue in its responsive papers.

The court next holds that the developer's property is a wetland adjacent to "waters of the United States" within the meaning of the FWPCA, and the Corps properly asserted jurisdiction over the land. The developer has not challenged the identification of his property as "wetlands" within the meaning of the FWPCA and its regulations, but rather disputes their location as adjacent to waters of the United States, or otherwise stated, are not part of the waters of the United States. The court holds that this narrow reading of "waters of the United States" ignores established case law on the criterion of navigability, and ignores the fact that the definition expressly includes tributaries of waters of the United States. The developer's wetlands are next to Inguadona Lake, which is hydrologically connected to a river that feeds into another lake, from which another river empties into the Mississippi River. Thus, Inguadona Lake is a tributary of waters used in interstate commerce and is considered a water of the United States in its own right. The court holds that because the developer does not dispute that he discharged pollutants from a point source, and that the court has now determined that this was done into a wetland adjacent to water of the United States, the government is entitled to summary judgment as a matter of law on its counterclaim that the developer violated FWPCA §§311(a) and 404(a).

The court next holds that the developer's estoppel claims fail because the actions or inactions claimed by the developer against the Corps do not rise to the level of affirmative misconduct required to maintain an estoppel claim against the United States. First, the developer has not established reasonable reliance on Corps-issued maps of navigable waters to maintain an estoppel claim. The maps, which bore the heading "Waters Covered by Section 10 of the 1899 Rivers and Harbors Act under the Jurisdiction . . ." of the Corps, contained a notice that all other waters and wetlands not shown on the map should be considered covered by FWPCA §404. Publication of such maps does not constitute affirmative misconduct. In addition, the Corps' failure to respond to the county public notices of hearings on the fill applications does not constitute affirmative misconduct, since the Corps is not under any legal duty to attend every public hearing, or respond to every public notice concerning matters within its jurisdiction. Enforcement of the FWPCA is discretionary. The court also holds that the developer's takings defense, in which the developer argues that the Corps' actions amount to a taking of private property requiring just compensation under the Fifth Amendment to the U.S. Constitution, is not properly brought in a challenge of the Corps' enforcement powers. The Eighth Circuit has held that in a suit challenging the Corps' enforcement powers, the taking defense is inappropriate.

The court next addresses whether the Corps' actions are reviewable under the Administrative Procedure Act (APA), because the FWPCA does not provide for judicial review of agency action under §404. The court holds that it cannot conclude, as a matter of law, that the Corps' decisions to deny the developer's permit application or second mitigation plan were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. First, while it is clear that the Corps must take into account any local regulatory agency's opinions and decisions, there is no requirement that the Corps affirmatively seek out comments from any particular local agency. Interested county officials had as much opportunity to comment on the developer's §404 permit application as any other person. Even though the county zoning board did not submit comments to the Corps, the Corps considered factors relevant to the local interest and need for the proposed work. The Corps determined that there were significant adverse effects on the aquatic environment that could be eliminated or alleviated by using an alternative project plan. Moreover, regulations under the FWPCA provide that when a proposed project is not "water dependent," or does not require access or proximity to a special aquatic site to fulfill its basic purpose, then practicable alternatives are presumed to be available, unless clearly demonstrated otherwise. The developer's residential project was not strictly water dependent and the Corps could presume that practicable alternatives existed. An alternative is not deemed impracticable simply because an applicant does not own an alternative area for the project, if such an alternative area can reasonably be obtained by the applicant. The developer provided no specific facts establishing a genuine issue of material fact as to the availability of alternative sites, and thus failed to carry his burden in a motion for summary judgment.

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

Counsel for Plaintiff
James R. Bresnahan
Cochrane & Bresnahan
24 E. 4th St., St. Paul MN 55101
(612) 298-1950