United States v. City of Fort Pierre, SD

• Decision Date: 30 December 1983
• Docket Number: Civ. No. 81-3040.
• Citation: 580 F. Supp. 1036
• Parties: UNITED STATES of America, Plaintiff v. CITY OF FORT PIERRE, SOUTH DAKOTA; J. Tipps Hamilton, in His Official Capacity as Mayor, City of Fort Pierre, South Dakota; and the State of South Dakota, Defendants.
• Court: U.S. District Court — District of South Dakota

580 F. Supp. 1036

UNITED STATES of America, Plaintiff v. CITY OF FORT PIERRE, SOUTH DAKOTA; J. Tipps Hamilton, in His Official Capacity as Mayor, City of Fort Pierre, South Dakota; and the State of South Dakota, Defendants.

Civ. No. 81-3040.

United States District Court, D. South Dakota, C.D.

December 30, 1983.

Dean K. Dunsmore, U.S. Dept. of Justice, Environmental Defense Section, Land & Natural Resources Div., Washington, D.C., David L. Zuercher, Asst. U.S. Atty., Pierre, S.D., for plaintiff.

Charles M. Poches, Jr., Poches & Lee Law Offices, Fort Pierre, S.D., Horace R. Jackson, Rapid City, S.D., Lynn, Jackson, Shultz & Lebrun, John Guhin, Asst. Atty. Gen., Natural Resources Section, Pierre, S.D., for defendants.

MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

In this suit plaintiff contends that defendant City violated the Clean Water Act by discharging fill material into wetland waters of the United States, without a permit. 33 U.S.C. §§ 1311, 1319, 1344. Plaintiff United States seeks declaratory and injunctive relief, civil penalties of $10,000 per day of violation, and restoration of the area.

The City argues that the area filled was not a wetlands and thus, no permit was required. Defendant City also raises affirmative defenses of estoppel, selective prosecution, violation by plaintiff of the Administrative Procedure Act, 5 U.S.C. §§ 554, 556, 557, in the permit process, and that the filling done by the City was justified as an effort to alleviate a health hazard caused by pollution of the area.

I.

Locally known as the Fort Pierre slough, the land involved in this action lies within the boundaries of the City and between U.S. Highway 83 and the Missouri River. On March 18, 1980, the City acting through its then mayor, J. Tipps Hamilton, applied to the United States Army Corps of Engineers (Corps) for a permit under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, to construct the Ninth Avenue roadway across the slough. Pursuant to its regulations, the Corps issued public notice of the application and invited public comment. The United States Fish and Wildlife Service (FWS) and the Environmental Protection Agency (EPA) both responded and recommended denial of the permit. Although City officials and a representative of FWS met to try to reach an agreement for alternative placement of a roadway, no agreement was reached. The City failed to respond to either the FWS or EPA objections to issuance of the permit.

On August 4, 1980, the City began construction of the Ninth Avenue roadway without a permit. The City used 6481 cubic yards of permanent fill material to construct the 700 feet by 5 feet deep and 50 feet wide Ninth Avenue road. Shortly thereafter, the Corps notified the City by certified mail that because the filling activity violated the Act, it must cease and desist. The City failed to accept the notice until at least six months later.

On August 14, 1980, the City began construction of a second roadway, Missouri Street, across the slough. The City placed 18,500 cubic yards of shale loam in the slough to construct a 2,000 feet by 5 feet deep and 50 feet wide roadway. The City did not apply for or receive a permit for this construction. Approximately 3.9 acres of the Fort Pierre slough were filled in constructing Ninth Avenue and Missouri Street.¹ On February 9, 1981, the Corps again ordered the City to cease and desist all filling activity in the slough. On July 21, 1981, the United States commenced this action. The case was subsequently tried to the Court.

II.

The first question presented is whether the so-called Fort Pierre slough area comes under the coverage of the Act as a "wetland" a water of the United States, as plaintiff contends. Regulations promulgated under authority of the Act (33 U.S.C. § 1344) define waters of the United States as:

(2) Coastal and inland waters, lakes, rivers, and streams that are navigable waters of the United States, including adjacent wetlands;

(3) Tributaries to navigable waters of the United States, including adjacent wetlands.

. . . . .

(4) Interstate waters and their tributaries, including adjacent wetlands; ...

33 C.F.R. § 323.2 (1982).²

Other regulations under the Act specifically define wetlands as "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. Wetlands generally include swamps, marshes, bogs and similar areas." 33 C.F.R. § 323.2(c) (1982).

Congress established that "waters of the United States" should be given a broad interpretation. United States v. Earth Sciences, Inc., 599 F.2d 368, 375 (10th Cir. 1979); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 755 (9th Cir.1978). Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685, 686 (D.D.C.1975). Furthermore, "Congress intended to protect the waters in a plenary, geographic sense, and ... wetlands are specifically included within that protection." United States v. Weisman, 489 F.Supp. 1331, 1338 (M.D.Fla.1980). The term wetlands is not a term of pure science; it is a term that Congress defined and expected to be interpreted to satisfy a practical, social and political need. Avoyelles Sportsmen's League, Inc. v. Alexander, 511 F.Supp. 278, 288 (W.D.La.1981). If the elements of the regulatory definition of wetlands are met, the slough should be classified as a wetlands. See 33 C.F.R. § 323.2(c) and (d) (1982); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974). Three factors are to be considered in determining whether the area in suit is a wetland, namely, the saturation or inundation of the area by surface or ground water, the type of prevalent vegetation, and the soil conditions. See 33 C.F.R. § 323.2(c) (1982); Avoyelles Sportsmen's League, Inc. v. Alexander, supra, 511 F.Supp. at 289.

Evidence presented by both sides at trial established that the slough area was frequently inundated and saturated after the Corps filled in the lower area in 1968. At approximately the same time, the vegetation in the slough was 90-98% cattails, a plant typically suited for wetland areas. Other vegetation consisted of wetland species such as burr reed, sedge, smart weed and bull rush. Soil conditions are thus typical of soil found in wetlands.

III.

A further question presented is whether the slough wetland area is adjacent to, in this case, the Missouri River, a water of the United States. The City contends the slough cannot be a wetland, since the present slough was formed in 1968 when the Corps deposited fill material into the lower end of the slough, blocking the surface flow of water between the former Missouri River side channel, and the Missouri River. A wetland is adjacent "if it is either bordering, contiguous or neighboring". See 33 C.F.R. § 323.2(d) (1982); United States v. Lee Wood Contracting, Inc., 529 F.Supp. 119, 120 (E.D.Mich.1981). The parties stipulated that the slough was originally a side channel of the Missouri River, but is now separated from the river by man-made and natural barriers, and lies between 820 feet and 1,400 feet from the Missouri. Even though land lies between the slough and the Missouri, the slough may nonetheless be neighboring. United States v. Lee Wood Contracting, Inc., supra, 529 F.Supp. at 121. Moreover, the regulations under the Act expressly provide that an "adjacent wetlands" may be separated from the Missouri by "manmade dikes or barriers, natural river berms, beach dunes and the like...." 33 C.F.R. § 323.2(d) (1982).

IV.

The City argues the slough is not an adjacent wetland, because there is no hydrological connection between the Missouri River and the slough. In United States v. Tilton, 705 F.2d 429 (11th Cir.1983) the Court held that a swamp was a wetlands even though the swamp and nearby river had no surface connection. Significantly, the Act and regulations do not require a hydrological connection between the waters of the United States here the Missouri River and the adjacent wetland. It is sufficient that the wetlands are "... 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". 33 C.F.R. § 323.2(c) (1982). It is undisputed that the area in suit does support a "prevalence of such vegetation."

The Court has not been cited to nor in its own research has it found a case definition of "surface" water as the term is used in regulations under the Act (33 C.F.R. 323.2(c) (1982))³. For this case the Court accepts the following definition of "surface waters":

Surface Waters. As distinguished from the waters of natural stream, lake or pond, surface waters are such as diffuse themselves over the surface of the ground, following no defined course or channel, and not gathering into or forming any more definite body of water than a mere bog or marsh. They generally originate in rains and melting snows, but the flood waters of a river may also be considered as surface waters if they become separated from the main current, or leave it never to return, and spread out over lower ground.

Black's Law Dictionary 1427 (rev. 5th ed. 1979).

There is no surface water connection between the Missouri River and the slough area in suit. The evidence is equivocal concerning whether ground water from the Missouri enters the slough area.⁴ However, under the "surface water" definition adopted by the court, supra, the slough area is "... inundated or saturated by surface ... water at a frequency and duration sufficient to support, and ... under normal circumstances ... does support, a prevalence of vegetation typically adapted for life in saturated soil conditions." See 33 C.F.R. 323.2(c) (1982). The Court concludes the slough area, under the Act, is an ...