was made by the Court of Appeals. The government seeks to amend its complaint to include this alleged violation, and at oral argument Leslie consented to allow it to be considered.
Leslie concedes that its activity occurred in jurisdictional wetlands. But Leslie argues that (1) it was the replacement of a prior tide gate, and was hence exempt from jurisdiction and the Corps' regulations, and (2) that the construction was not a prohibited discharge. The Corps objected to consideration of these defenses. But since the events are subsequent to the original judgment, and the alleged violation is to be considered, Leslie's defenses should also be considered on the merits.
However, this court finds against Leslie on the merits of these defenses. This activity was the construction of a new tide gate south of the culvert, and not the maintenance of the existing tide gate north of the culvert. A new area was affected by Leslie's construction work. And further, the recapture provision discussed above precludes the exemption defenses. Akers, 785 F.2d at 822. The court also finds that the installation of the tide gate was the placement of a pollutant. The side-casting and redeposit of excavated wetlands, and the pouring of concrete, would constitute the discharge of a Pollutant. 33 U.S.C. § 1362(6) (1990). The court therefore concludes that Leslie violated the Clean Water Act at point "C".
This court therefore finds, concludes, and declares as follows:
1. Those portions of Leslie's property marked on the attached map are subject to the jurisdiction of the Clean Water Act, and no other portions of the property are subject to the jurisdiction of that act.
2. The Rivers and Harbors Act does not apply to the property, and Leslie did not in violate the Rivers and Harbors Act.
3. Leslie violated the Clean Water Act at the points marked "A1" and "A2" on the map.
4. Leslie violated the Clean Water Act at point "B."
5. Leslie violated the Clean Water Act at point "C."
6. The court vacates it January 4, 1989 award of costs to Leslie. Costs will not be awarded to either side. Although the Corps has now established jurisdiction over certain portions of Leslie's land, it has not established jurisdiction over all of the property as it sought to do by the filing of this action.
7. A status conference will be held on February 7, 1992, at 11:00 a.m. for the purpose of considering the further proceedings that are necessary, including remedies.
Dated: January 3, 1992.
CHARLES A. LEGGE
UNITED STATES DISTRICT JUDGE
© 1992-2004 VersusLaw Inc.