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^HN1

Summary judgment is proper where the pleading, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. When presented with cross-motions for summary judgment, the court considers the motions simultaneously and draws all reasonable inferences in favor of the party opposing a particular motion.  More Like This Headnote

^HN2

Under the Clean Water Act, 33 U.S.C.S. § 1251 et seq., only those wetlands that fall within the definition of navigable waters are subject to the Army Corps of Engineers' regulation and permitting requirements.  More Like This Headnote

^HN3

The Clean Water Act (CWA), 33 U.S.C.S. § 1251 et seq., extends to all navigable waters, which are defined as the waters of the United States. 33 U.S.C.S. § 1362(7).  More Like This Headnote

^HN4

Waters that are not themselves navigable but are directly adjacent to actually navigable waters fall within the reach of the Clean Water Act, 33 U.S.C.S. § 1251 et seq.  More Like This Headnote

^HN5

Although the waters themselves do not need to be actually navigable to come within the definition of "waters of the United States" for purposes of the Clean Water Act, 33 U.S.C.S. § 1251 et seq., they cannot be isolated intrastate waters with no discernable connection to navigable waters.  More Like This Headnote

^HN6

The United States District Court for the Northern District of Illinois, Eastern Division, is bound by precedent from the United States Court of Appeals for the Seventh Circuit; the United States Court of Appeals for the Fifth Circuit has no precedential effect on that district court.  More Like This Headnote

^HN7

The party asserting the Army Corps of Engineers' jurisdiction over a particular body of water must establish a significant nexus between the body of water and a navigable water. If the complaining party cannot demonstrate such a connection, then the body of water cannot be included among those waters protected by the Clean Water Act, 33 U.S.C.S. § 1251 et seq.  More Like This Headnote

^HN8

The Clean Water Act (CWA), 33 U.S.C.S. § 1251 et seq., prohibits the discharge of any pollutant into federally protected waters without a permit from the Army Corps of Engineers (Corps). 33 U.S.C.S. §§ 1311(a), 1344(a). The statute defines the word "discharge" as any addition of any pollutant to navigable waters from any point source. 33 U.S.C.S. § 1362(12). The term "pollutant" means, inter alia, dredged spoil, biological materials, rock, sand, and cellar dirt. 33 U.S.C.S. § 1362(6). Although the Corps' regulations do not define "dredged spoil," they define "dredged material" as material that is excavated or dredged from waters of the United States. 33 C.F.R. § 323.2(c). Additionally, the Corps defines "the discharge of dredged material" as any addition of dredged material into, including any redeposit of dredged material other than incidental fallback within, the waters of the United States. 33 C.F.R. § 323.2(d)(1). In sum, to demonstrate an actionable discharge of pollutants under the CWA, one must demonstrate an (1) addition of (2) a pollutant (including dredged material, rock and cellar dirt) into protected waters.  More Like This Headnote

^HN9

For purposes of the Clean Water Act, 33 U.S.C.S. § 1251 et seq., a point source is any discernible, confined, and discrete conveyance from which pollutants are or may be discharged. 33 U.S.C.S. § 1362(14). Examples include: bulldozers, backhoes, and other equipment commonly used during excavation and mechanized land clearing.  More Like This Headnote

^HN10

For purposes of the Clean Water Act, 33 U.S.C.S. § 1251 et seq., once earth and vegetable matter is removed from the wetland, that material becomes dredged spoil, a statutory pollutant. It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undisturbed state. What important is that once that material is excavated from the wetland, its redeposit in that same wetland adds a pollutant where none has been before.  More Like This Headnote

^HN11

The Clean Water Act (CWA), 33 U.S.C.S. § 1251 et seq., authorizes the Army Corps of Engineers (Corps) to issue nationwide permits for categories of activities involving discharges that have minimal adverse environmental effects. 33 U.S.C.S. § 1344(e)(1). CWA regulations further provide that the Corps also has the discretion to modify, suspend, or revoke such permits for relevant factors of the public interest. 33 C.F.R. § 330.5. The regulations set forth specific procedures the Corps must follow before eliminating nationwide procedures which include public notice, comment periods, public meeting, and published findings supporting the revocation.  More Like This Headnote

^HN12

The regulations granting the Army Corps of Engineers (Corps) discretion to eliminate nationwide permits only require the Corps to issue public notices, solicit comment, hold public hearings, and publish its findings before revoking nationwide permits. 33 C.F.R. § 330.5.  More Like This Headnote

^HN13

As the Clean Water Act, 33 U.S.C.S. § 1251 et seq., does not specify the standard of review for Army Corps of Engineers' decisions, the court looks to the Administrative Procedure Act (APA) for the appropriate standard. Under the APA, a court cannot overturn a decision of an agency unless the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C.S. § 706(2)(a). Moreover, the standard of review is a highly deferential one and the court will not substitute its own judgment for that of the agency.  More Like This Headnote