Wetlands Separated by Railroad Tracks from Other Jurisdictional Wetlands do not Qualify as Adjacent to Navigable Waters Under Corps' Regulations

Great Northwest, Inc. v. United States Army Corps of Engineers

2010 WL 9499372

In an unpublished decision, a federal court sitting in Alaska has ruled that the Corps lacked authority under the Clean Water Act to regulate a mining operation because the mining operation's wetlands were merely "adjacent" to other jurisdictional wetlands, rather than part of a continuous wetlands system, and therefore not within the Corps' Section 404 jurisdiction.

The gravel mining operation was located on the north side of the Tanana River in Fairbanks, and separated from the river by railroad tracks on top of a berm. The Corps asserted jurisdiction over the wetlands south of the railroad berm as "adjacent" to a navigable waterway, and more contentiously, also claimed jurisdiction over wetlands on the north side of the railroad berm, within the mining operation, on the premise that wetlands on both sides of the railroad berm were part of the same "continuous" wetlands system.

The court observed that while the Corps, through its regulations, asserted Clean Water Act jurisdiction over wetlands that were adjacent to navigable waters, it specifically declined any jurisdiction over wetlands which were merely "adjacent" to other jurisdictional wetlands. (See 33 C.F.R., § 328.3(a)(7).) The court also noted that Corps' regulations did not define "continuous" in this setting. Based on its review of the regulations and case law, the court distilled the following principle:

Where a jurisdictional wetland is separated from another wetland by a man-made barrier, jurisdiction will only extend beyond the man-made barrier if the wetlands are "continuous" such that they should be considered to be the same wetland.

After a careful review of the administrative record, the court also found instances in which the Corps acknowledged that the wetlands were separate. "The Corps itself has repeatedly characterized the wetlands on the north and south sides of the railroad as 'separate' and no longer 'intact.'" The court thus held that the Corps' conclusion – that the two wetlands were continuous notwithstanding the intervening railroad tracks – was unsupported either by the facts or the applicable federal regulations.

The decision, although unpublished, offers insights into the always-complex legal questions that frequently surround the Corps' exercise of jurisdiction over wetlands.

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