## Facts

- Gary Bailey planned a residential development in Lake of the Woods County, Minnesota, and built an access road across wetlands.
- Bailey discharged dredged or fill material into the wetlands to construct the road without obtaining a Clean Water Act (CWA) § 404 permit from the U.S. Army Corps of Engineers.
- The Corps determined the affected wetlands were adjacent to Lake of the Woods, a navigable-in-fact water, bringing the wetlands within federal regulatory jurisdiction.
- The Corps ordered Bailey to restore the wetlands to their pre-fill condition; Bailey refused.
- The United States filed a civil enforcement action seeking injunctive relief requiring restoration and civil penalties.
- In support of summary judgment, the Corps submitted detailed scientific and technical evidence (including mapping and hydrologic analysis) supporting its adjacency and wetland determinations.
- Bailey did not produce comparable expert or scientific evidence to dispute the Corps’ jurisdictional showing.

## Issues

1. Whether the wetlands Bailey filled were “adjacent” to a navigable-in-fact water such that they fell within CWA § 404 jurisdiction.
2. Whether summary judgment was proper where the government presented extensive scientific evidence of adjacency and wetland status and Bailey failed to raise a genuine dispute of material fact.
3. Whether the district court properly ordered injunctive relief requiring wetland restoration consistent with the Corps’ plan.

## Decision

- The Eighth Circuit affirmed the district court’s grant of summary judgment for the United States.
- The court held the government established CWA § 404 jurisdiction because the wetlands were adjacent to Lake of the Woods.
- The court concluded Bailey failed to present evidence creating a genuine issue of material fact to defeat summary judgment.
- The court upheld the injunction requiring Bailey to restore the wetlands in accordance with the Corps’ restoration plan.

## Legal Principles

- CWA § 404 regulates discharges of dredged or fill material into “waters of the United States,” which may include wetlands adjacent to navigable-in-fact waters.
- On summary judgment, once the moving party supports its motion with competent evidence, the nonmoving party must present specific facts showing a genuine issue for trial; argument or unsupported assertions do not suffice.
- In CWA enforcement actions, injunctive restoration may be ordered to remedy unauthorized fill activities and return wetlands, as nearly as practicable, to their prior condition.

## Conclusion

The Eighth Circuit held that unrebutted scientific evidence supported federal jurisdiction over wetlands adjacent to a navigable-in-fact lake and affirmed summary judgment and restoration injunctive relief for an unpermitted wetland fill under CWA § 404.


United States v. Bailey, 571 F.3d 791 (8th Cir. 2009)