UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,

v.

RIVERSIDE BAYVIEW HOMES, INC., a Michigan corporation, and Allied Aggregate

Transportation Company, a Michigan corporation, Defendants-Appellants, Cross-

Appellees.

Nos. 81-1405, 81-1498.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 5, 1983.

Decided March 7, 1984.

Opinion on Denial of Rehearing and Rehearing En Banc June 8, 1984.Government brought action against owner of undeveloped suburban land alleging that depositing fill material on the land violated wetlands regulations of Army Corps of Engineers. The United States District Court for the Eastern District of Michigan, Cornelia G. Kennedy, J., issued permanent injunction prohibiting further filling, and landowner appealed. The Court of Appeals, 615 F.2d 1363, remanded for further proceedings in light of new wetlands regulations. On remand, the District Court, Horace W. Gilmore, J., continued the permanent injunction, and landowners appealed. The Court of Appeals, Merritt, Circuit Judge, held that undeveloped suburban land was not "wetlands" within meaning of regulation requiring owners to obtain permit to deposit fill material on the land where there was no evidence that the land as it presently existed was frequently flooded and that the flooding caused aquatic vegetation to grow there.

Injunction vacated and claim dismissed.

*392 Richard R. Gienapp, argued, Detroit, Mich., for defendants-appellants, cross-appellees.

Richard A. Rossman, U.S. Atty., Detroit, Mich., Hayward L. Draper, Asst. U.S. Atty., Detroit, Mich., Thomas H. Pacheco, Anne S. Almy, U.S. Dept. of Justice, Land & Nat. Resources Div., Washington, D.C., Ellen J. Durkee, argued, Melvyn B. Kalt, Deputy Dist. Counsel, U.S. Army Corps of Engineers, Detroit, Mich., for plaintiff-appellee, cross-appellant.

Before MERRITT and MARTIN, Circuit Judges, and WEICK, Senior Circuit Judge.

MERRITT, Circuit Judge.

This is an environmental case concerning "wetlands" and the jurisdiction of the United States Army Corps of Engineers over them.The government claims that defendants, Riverside Bayview Homes, Inc., and Allied Aggregate Transportation Company, violated section 301(a) of the Federal Water Pollution Control Act, 33 U.S.C. s 1311(a) (1976), and regulations concerning "wetlands" purportedly issued under that Act. The claimed violation occurred when the defendants deposited fill material on Riverside's land, which the government asserts is a "wetland," without obtaining a permit from the Corps of Engineers as required by the Act. Judge Cornelia Kennedy, sitting as a District Judge, issued a permanent injunction prohibiting further filling on a large portion of Riverside's property and a declaratory judgment holding one of the Corps regulations unconstitutional. Both parties then appealed. 

On the first appeal, 615 F.2d 1363 (6th Cir.1980), this Court remanded the case for further proceedings in the District Court in light of a new regulation promulgated by the Corps. That regulation, found at 33 C.F.R. s 323.2(c) (1983), specifically altered the definition of "wetlands" relied upon by Judge Kennedy in the original District Court proceeding. We conclude that the District Court on remand erred in interpreting the new definition of wetlands to include defendant's property and in continuing the permanent injunction under the new regulation. We also vacate as moot the declaratory judgment issued by the District Court in the first proceeding.

 

I. THE LAND IN QUESTION

Riverside owns approximately eighty acres of undeveloped land north of Detroit in Harrison Township, Michigan, which it had planned to develop for housing. It is located in a suburban area approximately a mile west of Lake St. Clair and south of South River Road, roughly paralleling the Clinton River. Its southern boundary is separated from the man-made Savan Drain by two ten-acre parcels. Its western boundary is formed by Jefferson Avenue, a heavily travelled road. [FN1]

Riverside's property comprises one sixty-acre parcel and a partially adjoining twenty-acre parcel. The sixty acres running along Jefferson Avenue were actively farmed in the past. In 1916, the sixty-acre tract was platted as a subdivision, and storm drains and fire hydrants were installed. The remaining twenty-acre parcel was neither platted nor improved. In the early *393 and mid-1950's, some efforts were made by the owner to develop the platted subdivision. In 1960, the newly-formed Riverside Corporation bought the property. According to Riverside, its efforts to develop the property along with the surrounding area during the 1960's were stymied by an adjacent property owner who blocked an effort to reroute a street dissecting the property, and by a local zoning ordinance which forced it to fill the property to a specific elevation.

In 1973, unprecedented high water levels on the Great Lakes, including Lake St. Clair, located a mile east of the Riverside land, prompted emergency action by Harrison Township and the Corps of Engineers to protect area homes and businesses from water damage. Emergency measures included building a semicircular dike which dissected the twenty-acre parcel and extended southeast across the sixty-acre tract, and filling a ditch along Jefferson Avenue with dirt, thereby destroying the drainage on the western border of the property.

In furtherance of its development plans, Riverside contracted with Allied Aggregate Transportation Company in the fall of 1976 to have dirt fill hauled to the property. It was unclear whether or not the land would be subject to the Corps' regulatory jurisdiction. Accordingly, a Riverside stockholder met with Corps personnel to discuss whether a permit must be obtained in order to proceed with filling the land. Riverside submitted an incomplete application for a permit in November, 1976.

Before the permit application had been acted on by the Corps, Riverside began placing fill on the property north of the dike. On December 22, 1976, Riverside was ordered by the Corps to cease and desist from further filling. When Riverside continued to fill, the Corps asked the United States Attorney to bring this enforcement proceeding.

On January 7, 1977, the District Court entered a temporary restraining order prohibiting Riverside and Allied from engaging in further filling, pending a full evidentiary hearing. After that hearing, which encompassed seven days of testimony, Judge Kennedy issued an opinion granting the government's motion for a preliminary injunction. Judge Kennedy also held unconstitutional a Corps regulation requiring the processing of an application for a permit to be postponed once the United States Attorney has begun enforcement proceedings. On June 20, 1979, the District Judge issued the court's final judgment holding a large portion of Riverside's land to be a wetland subject to Corps regulation under the Federal Water Pollution Control Act. Judge Kennedy permanently enjoined further filling on that portion of the property until the Corps issues a permit to Riverside. At the same time, she issued an order holding defendants in contempt of court because they had continued to fill the property. The defendants were ordered to remove the fill, which they have apparently done. Since that time, Riverside's application for a Corps permit has been processed and denied.


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