ELR Citation: ELR 20573
No(s). 2:01cv508, 4:01cv86 (E.D. Va. Apr 3, 2002)

The court holds that the U.S. Army Corps of Engineers (the Corps) exceeded its authority in extending jurisdiction over property that contains wetlands in light of its own regulations and the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 31 ELR 20382 (2001). After discovering that the owners of the property were discharging dredged or fill material onto the property without a Clean Water Act (CWA) §404 permit, the Corps ordered a cease and desist order. The property owners ignored it and this lawsuit ensued. The court first holds that the Corps improperly extended jurisdiction over the property. Only by multiple drainage ditches, a culvert under a highway, and miles of non-navigable waters are the wetlands on the property even remotely connected to navigable waters or a water body capable of being used by the public for the purposes of transportation or commerce. Therefore, the wetlands fall outside the scope of the CWA. Moreover, SWANCC alone eliminates any claim of jurisdiction by the Corps in this case. The wetlands on the property are not adjacent to navigable waters by any reasonable definition of adjacency. Additionally, the court holds that the state environmental board's claimed jurisdiction over the property was improper because it exercised jurisdiction based on the Corps' erroneous assertion of jurisdiction.

[Counsel not available at this printing.]

Morgan, J.