- The Washington Times - Saturday, July 14, 2001

NORFOLK (AP) — A federal judge has ordered a developer to stop filling wetlands in Newport News, Va. but said he is concerned about the property owner's right to develop the land without government interference.
U.S. District Judge Henry Coke Morgan Jr. issued a temporary restraining order Thursday that halts work by Newdunn Associates for 10 days. He also set a July 23 hearing to determine whether to allow the work to resume.
The Justice Department has filed a federal lawsuit contending that Newdunn cannot fill the wetlands without a permit from the U.S. Army Corps of Engineers.
Judge Morgan said his decision to halt the work temporarily does not mean he agrees with the Justice Department that filling the wetlands violates the federal Clean Water Act.
In a hearing, the judge made it clear that he seriously is considering the developer's contention that a recent U.S. Supreme Court ruling has limited the reach of Corps of Engineers regulations to navigable waters and wetlands next to those waters.
Previous federal regulations and court decisions gave the corps authority to regulate work in any wetlands where waters drained or flowed into navigable waters.
Judge Morgan said he agrees with the developer's argument that such an interpretation can place virtually every wetland under federal government regulation. He expressed concern that such regulations could amount to a government taking of the land, or its value, from the owner.
"The Supreme Court wants people to start taking a common-sense approach to limiting federal jurisdiction," Judge Morgan said from the bench.
Newdunn is filling 38 acres of wetlands on a 43-acre tract near Interstate 64.
The company argued in court documents that a delay in filling the wetlands could make the land development project impossible and cost the developer more than $4 million.
That is because Newdunn is rushing to complete the work before Oct. 1, when a law will give the Virginia Department of Environmental Quality (DEQ) authority to regulate the work. Until then, DEQ regulatory power applies only to wetlands that fall within Corps of Engineers jurisdiction.
Development of wetlands is regulated under the Clean Water Act because wetlands help prevent floods by absorbing rainfall, filter pollutants from water and serve as wildlife habitats.

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