ELR Citation: ELR 20177
No(s). 84-1162 (8th Cir. Oct 31, 1984)

The court rules that land that exhibits wetland characteristics only because of unrelated government river maintenance is not within the Corps of Engineers' jurisdiction under Federal Water Pollution Control Act (FWPCA) §404. The court notes that the area in question, though once a side-channel of the Missouri River, had developed upland characteristics and only began to exhibit wetland characteristics after the Corps blocked the area's drainage with dredge spoils in 1968, inadvertantly and unnaturally impounding surface runoff. The court holds that Congress never intended the FWPCA to give the Corps jurisdiction over such areas. Holding otherwise would be antithetical to the goals of the Act, since the water on the tract is stagnant and polluted and offers none of the public benefits that the tract offered as dry land.The court does not decide whether Congress could exert jurisdiction over such a tract, nor whether the FWPCA governs artificially created wetlands generally.

[The decision below appears at 14 ELR 20209.]

Counsel for Appellants
Charles M. Poches Jr.
Poches & Lee Law Offices
P.O. Box 617, Fort Pierre SD 57532
(605) 223-2572

Horace R. Jackson
Lynn, Jackson, Shultz & Lebrun
P.O. Box 8110, Rapid City SD 57701
(605) 342-2592

Counsel for Appellee
Thomas A. Pacheco, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2767

Before HEANEY and FAGG, Circuit Judges, and COLLINSON,^* Senior District Judge.