ELR Citation: ELR 20163
No(s). 4-84-888 (D. Minn. Oct 2, 1985)

The court holds that the Corps of Engineers has the power under §301 of the Federal Water Pollution Control Act (FWPCA) to deny an FWPCA §404 dredge and fill permit for construction in an artificial wetland in Minnesota. The court first rules that the Corps has jurisdiction over an artificial wetland as the Corps did not create the wetland. Both legislative history and judicial precedent indicate that federal jurisdiction is determined by whether the site is presently a wetland, and not by the manner in which it became a wetland. A case cited by plaintiff can be distinguished because in that case the Corps itself created the wetlands. To rule otherwise would enlarge the Corps' jurisdiction beyond that envisioned by Congress. The court finds that the wetland in the instant case was created by acts of state and local authorities. The court also holds that the Corps, having paid strict attention to regulatory procedures, did not act arbitrarily and capriciously and is entitled to summary judgment.

Counsel for Plaintiff
James Malecki
Gislason, Dosland, Hunter & Malecki
State & Center Sts., New Ulm MN 56073
(507) 354-3111

Counsel for Defendant
Carol B. Swanson, Ass't U.S. Attorney
234 U.S. Cthse., 110 S. 4th St., Minneapolis MN 55401
(612) 332-8961