U.S. v. City of Fort Pierre, S.D., 84-1162
| Decision Date | 31 October 1984 |
| Docket Number | No. 84-1162,84-1162 |
| Parties | , 15 Envtl. L. Rep. 20,177 UNITED STATES of America, Appellee, v. CITY OF FORT PIERRE, SOUTH DAKOTA; James Hoffman in his Official Capacity as Mayor, City of Fort Pierre, South Dakota, Appellants. State of South Dakota. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles Poches, Jr., Fort Pierre, S.D., Horace R. Jackson, Rapid City, S.D., for appellants.
Thomas H. Pacheco, Robert L. Klarquist, Dept. of Justice, Washington, D.C., for appellee.
Before HEANEY and FAGG, Circuit Judges, and COLLINSON, * Senior District Judge.
The Fort Pierre Slough (Slough) is located within the City of Fort Pierre, South Dakota (City). In August of 1980, the City, for legitimate health and safety reasons, constructed two unfinished streets across the Slough. In July of 1981, the Army Corps of Engineers (Corps) brought suit against the City claiming that the Slough is a "wetland" within the jurisdiction of the Corps and claiming further that the City violated sections 301 and 404 of the Clean Water Act, 33 U.S.C. Secs. 1311, 1344, when it failed to obtain a permit before constructing streets across the Slough. No other basis of jurisdiction was asserted by the Corps, and the only jurisdictional issue fully and fairly litigated below was the issue of the Corps' jurisdiction over the Slough as a wetland. Following trial, the district court concluded that the Slough was a wetland within the jurisdiction of the Corps and that the City had violated the Clean Water Act when it failed to obtain a permit prior to beginning construction of the two streets. We disagree and therefore reverse the decision of the district court, 580 F.Supp. 1036.
In enacting the Clean Water Act, 33 U.S.C. Secs. 1251-1376, Congress intended "to restore and maintain the chemical, physical, and biological integrity of our Nation's waters," 33 U.S.C. Sec. 1251(a), by enacting "a comprehensive program for controlling and abating water pollution," Train v. City of New York, 420 U.S. 35, 37, 95 S.Ct. 839, 841, 43 L.Ed.2d 1 (1975). To accomplish this goal, Congress provided that "the discharge of any pollutant * * * [into the waters of the United States] shall be unlawful." 33 U.S.C. 1311.
This general prohibition is not without exception, however. For example, section 404 of the Clean Water Act authorizes the Secretary of the Army to "issue permits * * * for the discharge of dredged or fill material into the [waters of the United States]." 33 U.S.C. Sec. 1344(a); see also 33 U.S.C. Sec. 1362(7) (). The authority to issue these permits has been delegated by the Secretary to the Corps, 33 C.F.R. 325.8, which, consistent with this delegation, has promulgated a regulation defining the term "waters of the United States" to include wetlands, 33 C.F.R. Sec. 323.2, and further defining the term "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." Id. Sec. 323.2(c).
When determining whether the Corps' jurisdiction over our Nation's wetlands extends to a particular area, a court must bear in mind Congress' intent to extend this jurisdiction to the full extent permissible under the Constitution. See United States v. Tilton, 705 F.2d 429, 431 (11th Cir.1983). We do not question the Corps' broad, plenary authority to protect, maintain, and restore our Nation's wetlands and consequently concede that in many, if not most, cases, areas that fall within the literal language of the Corps' "wetlands" definition will also fall within the Corps' section 404 permit jurisdiction. However, we do not believe that a determination of the Corps' jurisdiction can be made formalistically or in a vacuum without reference to the particular situation before us.
In the present case, for example, the facial appearance of the Slough falls within the Corps' definition of a wetland since the Slough as it presently exists is frequently inundated and saturated with surface water, and since the vegetation now found in the Slough consists almost exclusively of wetland-type vegetation. Despite the Slough's appearance, however, we conclude that the Slough is not a wetland as contemplated by Congress in passing the Clean Water Act. We reach this conclusion by focusing upon the peculiar facts and unique circumstances surrounding the Slough, its history, and its origin as a potential wetland.
The Fort Pierre Slough is a privately owned area located within the City of Fort Pierre. Today, the Slough, which was originally a side-channel of the Missouri River, is essentially rectangular in shape and covers approximately 25 acres of land near to, although entirely separated from, the Missouri River. The Slough was first separated from the Missouri River in 1907, when a railroad bridge and approach were built across the northern (upstream) end of the Slough. The Slough's northern end was further separated from the Missouri River in 1927 and 1962 when highway bridges were constructed just below the original railroad bridge and approach.
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