Daily Development for
Thursday, October 9, 1997
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
ENVIRONMENTAL LAW: WETLANDS; For purposes of an action alleging a violation of the Clean Water Act, wetlands which are separated from other waters of the United States by man-made dikes or barriers may still be subject to the regulatory jurisdiction of the Army Corps of Engineers as wetlands adjacent to waters of the United States, even when the wetlands are more than one-half mile from waters of the United States.
United States v. Banks, 115 F.3d 916 (11th Cir. 1997).
Landowner discharged fill into "wetlands" on his property. Pursuant to Section 404(a) of the Clean Water Act, the Army Corps of Engineers has authority to issue permits for discharges of fill into waters of the United States, including wetlands adjacent to navigable, tidal waters. Pursuant to this authority, the Army Corps of Engineers filed an action against landowner alleging that landowner was illegally filling wetlands without a permit. Landowner argued that his land did not include wetlands adjacent to waters of the United States and therefore was not subject to the regulatory jurisdiction of the Army Corps of Engineers. In support of his argument, landowner pointed out that all of his land is at least one-half mile from any navigable channel, and a paved road blocks the flow of water from landowner's land to the navigable channel.
The court held that landowner's land did include wetlands adjacent to navigable, tidal waters. Pursuant to 33 C.F.R. 328.3(c), wetlands which are separated from navigable, tidal waters by man-made dikes or barriers are "adjacent wetlands". Even though landowner's land was more than one-half mile from a navigable channel, the court relied on expert testimony which demonstrated that there was a hydrological connection between landowner's land and the nearby navigable channels. This hydrological connection was largely through groundwater, although surface water also provided a hydrological connection during storms. Furthermore, the court found that ecological adjacency existed between landowner's land and the nearby channels, as each was hydrologically connected and provided a common habitat for local wildlife.
Comment: The court cited to another case it decided in which the surface water connection arose only in high tides associated with hurricanes. Here, apparently, it took one step further and concluded that heavy storm conditions that covered everything with water established a "hydrologic condition" even when the water was not the result of tidal action.
Although the editor claims no expertise in this area of law, he is struck by the fact that the court appears to emphasize the existence of a "surface connection" even though it also concludes that the primary hydrologic connection necessarily is groundwater. Does this suggest that some surface connection is necessary for "adjacency?" If that is so, then surely reliance upon a connection that exists only during a hurricane is an absurd construction of Congressional intent.
It makes more logic (if not sense) to construe the intent of Congress to be that "adjacency" occurs when there is nothing more than a groundwater connection. But if this is the correct reading, then the one-half mile distance in this case would pale in comparison to the cases that we will see later. One assumes that a groundwater connection could be shown between navigable waterways and upstream lands that are many miles distant. In short, again to one unversed in the Congressional purposes here, either construction placed upon the statute by the Court of Appeals seems to be a distortion of the appropriate test for Corps of Engineers jurisdiction.
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