ELR Citation: ELR 20526
No(s). 00 C 6486 (N.D. Ill. Mar 8, 2002)

The court holds that an equestrian center discharged fill to wetlands that were within the U.S. Army Corps of Engineers' jurisdiction, and, thus, the center violated Clean Water Act (CWA) §301 by discharging sand to the wetlands without a permit. The center argued that under Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, 31 ELR 20382 (2002), the Corps did not have jurisdiction over the wetlands. The court first holds that although courts have interpreted the SWANCC decision to limit the Corps' jurisdiction to navigable waters or wetlands adjacent to navigable waters, SWANCC did not effect so substantial a change on the Corps' jurisdiction, and, in this case, SWANCC has no direct relevance. SWANCC involved isolated wetlands lacking a physical/hydrological connection to other waters. Here, the center conceded that there is, at least sometimes, and unbroken line of water from the wetlands at issue to a nearby tributary. Thus, even though the flow might be intermittent, there is a hydrological connection between the wetlands and a tributary sufficient to establish the Corps' jurisdiction. The court next holds that the wetlands' connection to the tributary in part through a drainage connection does not remove the wetlands from Corps' jurisdiction. Wetlands must be adjacent to U.S. waters or their tributaries for CWA purposes, and the center claimed that the drainage connection cannot be considered an adequate measure of adjacency. Although the Corps does not define "adjacency," its ordinary meaning implies actual contact, and the drainage connection leads to actual contact with a tributary of U.S. waters. The court further holds that the fact that the tributary is not navigable is irrelevant as long as it eventually flows into a navigable water. In addition, a previous permit that the center received to fill the wetlands is inapplicable to the discharges at issue. Therefore, the court granted summary judgment to the Corps and scheduled hearings to determine a civil penalty for the center's CWA violation.

Counsel for Plaintiff
Scott R. Lassar
U.S. Attorney's Office
219 S. Dearborn St., 5th Fl., Chicago IL 60604
(312) 353-2067

Counsel for Defendant
Shelia Deely
Gardner, Carton & Douglas
321 N. Clark St., Chicago IL 60610
(312) 644-3000

Pallmeyer, J.