Summary of a Recent
Judicial Development in
Clean Water Act

Draining of Hatchery Supply Pond Potentially
Subject to § 404 Permit

Elizabeth Smith McKinney
National AgLaw Center Graduate Assistant

In Greenfield Mills, Inc. v. Larry Macklin, 361 F.3d 934 (7th Cir. 2004), the United States Court of Appeals for the Seventh Circuit held that the draining of a fish hatchery supply pond into a nearby river constituted an "addition" of dredged spoil into a navigable water and was therefore subject to the § 404 permit requirement of the Clean Water Act ("CWA"), 33 U.S.C. § 1251-1387. See id. at 949. The court also held that genuine issues of material fact existed so as to preclude summary as to whether the draining of the pond fell under the maintenance exemption, 33 U.S.C. § 1344(f)(1), of the CWA § 404 permit requirement. See id. at 953. The court further held that genuine issues of material fact existed regarding the issue of whether the CWA "recapture" provision, 33 U.S.C. § 1344(f)(2), barred application of the CWA maintenance exemption to § 404 permit requirement. See id. at 957. The plaintiffs were riparian landowners along the Fawn River and the defendants were associated with the Indiana Department of Natural Resources. See id. at 939. The defendants allowed the draining of a hatchery supply pond to the extent that a "distinct channel" was exposed and the water was picking up silt and carrying it through the gates. See id. at 941. The plaintiffs alleged that the defendants' action violated §§ 402 and 404 of the CWA. See id. The federal district court granted the defendants' motion for summary judgment. See id. The plaintiffs appealed to the Seventh Circuit. See id. The Seventh Circuit reversed the district court's granting of summary judgment in favor of the defendants and remanded the matter for proceedings consistent with its opinion.

The case was decided on March 19, 2004; this summary was posted Posted: Oct. 25, 2005.