ELR Citation: ELR 20922
No(s). A3-88-175 (D.N.D. Apr 6, 1992)

The court holds that three sloughs in North Dakota are isolated wetlands subject to Federal Water Pollution Control Act (FWPCA) jurisdiction and that genuine issues of material fact preclude summary judgment on whether work a county performed on a drainage ditch that bisects the sloughs was exempt from FWPCA §404 dredge and fill permitting. The county's contractor deposited part of the material that he removed from the ditch in the sloughs, which apparently later dried up. The court first holds that the sloughs are not "adjacent wetlands." They are not separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, or the like, nor are they bordering, contiguous, or neighboring any waters. The nearest river is seven miles away, and placing the interposed farmland under nontidal waters jurisdiction would lead to an absurd result clearly not contemplated under the regulatory scheme. The court next holds that FWPCA jurisdiction exists over the sloughs as isolated wetlands. The sloughs provide significant habitat to migratory birds, and interstate travelers can potentially use the sloughs for recreational purposes. The court next holds that the question whether the county's work was new work requiring a dredge and fill permit or was exempt from permitting as drainage ditch maintenance under §404(f)(1)(C) is not appropriate for summary judgment. Neither a 1919 nor a 1969 survey of the ditch establish the ditch's original condition, and although the contractor testified that he only returned the ditch to its preexisting depth and original grade, there is no conclusive evidence showing the original depth of the ditch. The court next holds that even if the government's interpretation of §404(f)(2)'s "recapture" provision as subjecting to permitting any discharge of dredged material that has the effect of subjecting navigable waters to a new use is correct, summary judgment is not mandated. Ordinary maintenance would not normally subject an area to a use to which it was not previously subject. Even though satisfaction of the maintenance exemption may not negate the recapture clause as a matter of law, it raises a factual inference that something else—such as the recent drought—caused the changes in the slough.

The court next holds that the involvement of the engineer that the county hired to prepare drawings of the original bottom elevation of the ditch is too attenuated for liability to attach. The county did not hire the engineer to obtain any permits, the contractor did not follow the engineer's drawings, and the engineer's placement of stakes to show the center line of the original ditch was not critical to the contractor's performance of the work. Moreover, the engineer had nothing to do with the discharge of the dredged material and he exercised no control over the contractor's performance of the work. Finally, the court bifurcates the issues of liability and damages for trial.

Counsel for Plaintiff
Samuel W. Plauche
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Dean A. Rindy
Ohnstad & Twichell
901 13th Ave. E., West Fargo ND 58078
(701) 282-3249

WEBB, Chief Judge.