ELR Citation: ELR 21528
No(s). 88-0054 (D.N.J. Apr 14, 1992)

The court holds that the Army Corps of Engineers (the Corps) bears the burden of proving the existence of wetlands within the meaning of the Federal Water Pollution Control Act (FWPCA) by a preponderance of the evidence, and the issue of the reliability of the Corps' data collection is a material fact that precludes the Corps' motion for summary judgment. The Corps issued an order to a residential developer to cease and desist the filling of wetlands without an FWPCA §404 permit. The court first holds that an earlier judicial order enforcing the Corps' decision to issue the cease and desist order does not relieve the Corps of the burden of proving the existence of wetlands by a preponderance of the evidence. As a matter of first impression in the Third Circuit, the court then holds that the Corps must meet the preponderance of the evidence standard in proving a wetlands determination in an enforcement action. The court finds persuasive the reasoning in a similar case, Leslie Salt Co. v. United States, 17 ELR 21006, which distinguished the arbitrary and capricious standard of review governing the FWPCA citizens suit challenges to Corps' wetlands determinations from the burden of proof in an enforcement action. Unlike citizens suits brought under the FWPCA §505, the court concludes that a less deferential preponderance of the evidence standard is appropriate for judging the Corps' enforcement actions due to the magnitude of the relief it seeks. Finally, because a material fact within the meaning of the Federal Rule of Civil Procedure 56(c) may be any fact that might affect the outcome of the action, the court holds that whether the Corps gathered data in a reliable manner is material, and defeats the Corps' motion for summary judgment.

[A previous decision in this litigation is published at 19 ELR 20634.]

Counsel for Plaintiffs
Richard M. Hluchan
Levin & Hluchan
1200 Laurel Oak Rd., Ste. 100, Voorhees NJ 08043
(609) 627-8555

Counsel for Defendant
Michael Chertoff, U.S. Attorney
U.S. Attorney's Office
402 E. State St., Rm. 502, Trenton NJ 08608
(609) 989-2190