ELR Citation: ELR 20148
No(s). 08-1908 (8th Cir. Jul 9, 2009)

The Eighth Circuit upheld a lower court decision ordering a landowner who built a road on a parcel of wetlands without a permit to comply with a U.S. Army Corps of Engineers' restoration order requiring him to restore the wetlands to their pre-violation condition. The lower court properly concluded that the Corps has jurisdiction over the wetlands at issue. The Eighth Circuit held that the Corps has jurisdiction under CWA §309(b) if either the plurality's test or Justice Kennedy's substantial nexus test in Rapanos v. United States, 126 S. Ct. 2208 (2006), is met. Here, the Corps satisfied the substantial nexus test since the landowner's property was situated in a wetland adjacent to navigable-in-fact waters. In addition, the Corps' restoration order did not violate his equal protection rights. The landowner argued that because the Corps issued a permit to the county for a nearby road, it should have issued him a permit as well and then allowed him to mitigate the damage, rather than denying his permit application and ordering him to restore the site. But the circumstances surrounding the two roads are quite different and, thus, the Corps had a rational basis for treating the landowner and the county differently. Last, the lower court did not abuse its discretion in issuing a permanent injunction ordering the landowner to restore the wetlands to their pre-violation condition.

[A related decision can be found at 33 ELR 20118.]