July 12, 2009

In a July 9, 2009 opinion the U.S. Court of Appeals for the Eighth Circuit upheld a U.S. District Court judge’s opinion concluding the U.S. Army Corps of Engineers (Corps) had jurisdiction over private property in Lake of the Woods County in northern Minnesota. According to the opinion a landowner, Gary Bailey, constructed a road on a land containing wetlands without first obtaining a permit required under Section 404 of the Clean Water Act.

Local Soil and Water Conservation District employees initially visited the site and told a contractor that the road construction project was not properly permitted and that construction should be halted.  Later the Corps and the U.S. Environmental Protection Agency inspected the site and ordered Bailey to restore the wetland to its pre-violation condition.  Mr. Bailey declined to comply. The United States brought an action to enforce a restoration order and enjoin Bailey from further discharges of pollutants into the wetland.  The District Court ruled that the Corps had jurisdiction and acted properly.

The Eighth Circuit Court of Appeals applied the U.S. Supreme Court’s landmark Rapanos v. United States, 547 U.S. 715 (2006), upheld the District Court’s decision that the Corps had jurisdiction and that its restoration order was valid.  A copy of the opinion is found at:http://www.ca8.uscourts.gov/opndir/09/07/081908P.pdf

Hessian & McKasy’s Environmental Law Attorney Practice Group regularly advises clients on permitting issues including permits required to address potential wetland impacts at sites.  The determination of whether wetlands are present requires an assessment of soil and hydrological conditions.  For more information related to the professional services provided by our environmental lawyers please see our website at: http://www.enviroattorney.net/practice.php.

The views expressed here are my own and do not reflect the views of my employer, Hessian & McKasy P.A.

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