Can Wetland Property Be Developed? Regulated Activities and Statutory Exemptions

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 49-81

Page 49

Chapter 3

Can Wetland Property Be Developed?

Regulated Activities and Statutory Exemptions

A

series of questions and answers follows the delineation and jurisdictional determination of wet-

lands. If a propert y has wetla nds or waters of the United States, t he next consideration is whether

the proposed activity is regulated. Not all wetland-impacting activities are considered regulated

actions under the CWA. However, if there is a regulated activity in jurisd ictional waters, t he property

owner must then consider whether the activ ity is exempted from the permit requirement. e CWA and

its regulations establish categories of exemptions for certain activities. is chapter examines the scope of

regulated activities and the exemptions.

I. What Activities in Wetlands Are Regulated?

e CWA prohibits the discharge of a pollutant from a point source into waters of the United States with-

out a permit.1 e Act identies dredged or ll material as one such pollutant and the §404 regu lations

dene wetlands as one such water. e regulations dene ll materia l very broadly as any material that

changes the bottom elevation of a water area or converts a portion of a water of the United States into dry

land. Nevertheless, the terms “discharge,” “pollutant,” and “point source” must be understood in order to

appreciate the scope of the prohibited acts. ese terms have been construed such that not all actions that

may impact wetlands fall within the Corps’ authority.

A. Pertinent Def‌initions

e CWA, the Corps’ regulations, and case law interpreting §404 dene what constitutes a “pollutant” and

what constitutes a “discharge.” e Act denes “pollutant” to include “dredged spoil, solid waste, incinera-

tor residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioact ive

materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial waste discharged

into water.”2

e “discharge” of a pollutant or pollutants is dened as “any addition of any pollutant to navigable

waters from any point source.”3 Each part of the denition is signicant and is addressed within this Desk-

book: “addition,” “pollutant,” “navigable waters,” and “point source.”4 ese broad denitions include the

deposit of ll material used to convert wetlands to dry land. e ll material used is often dredged material,

dirt, sand, rocks, or other debris, all of which have been recognized as pollutants under CWA §§301 and

1. 33 U.S.C. §1311 (2006), ELR S. FWPCA §301.

2. 33 U.S.C. §1362(6) (2006), ELR S. FWPCA §502(6).

3. Id. §1362(12), ELR S. FWPCA §502(12).

4. “Navigable waters” was addressed in Chapter 2, supra. is chapter examines “pollutant,” “addition,” and “point source,” since those terms

dene regulated activities.

Page 50 Wetlands Deskbook, 4th Edition

404.5 Although the CWA and regulations exempt some discharges from the permit requirement,6 the statu-

tory prohibition is comprehensive.

e Corps has rened the statutory denitions to give them meaning in the §404 context. Specically,

the Corps’ regu lations use the terms “dredged” and “ll,” requiring permits for the discharge of dredged

or ll material.7 “Dredged material” is dened as “material that is excavated or dredged from waters of the

United States.”8 A discharge of dredged material includes, “without limitation, the addition of dredged

material to a specied discharge site located in waters of the United States and the runo or overow from

a contained la nd or water disposal area.”9 EPA uses the same denitions of “d redged material ” and “dis-

charge of dredged material.”10

Originally, the Corps and EPA had dierent denitions of “ll material.” e Corps’ denition was

based on the “primar y purpose” of the ll,11 while EPA’s denition was based on the eect of the ll.12 In

May 2002, the Corps revised its denitions of “material” and “discharge of ll material” to, essentially,

conform the denitions to those of EPA.13 e Corps’ rule now diers only slightly from EPA’s in that it

specically excludes tra sh or garbage from regulation.14

e Corps denes “discharge of ll material” as simply “the addition of ll material into waters of the

United States,” but includes a long list of examples.15 ese include building causeways, roads, dams, dikes,

articial islands, any structure or impoundment, site development lls for any use, reclamation or protec-

tion devices, such as riprap, groins, seawalls, or breakwaters, ll for intake or outfall pipes or se wers, and

articial reefs.16 EPA uses the same denition and examples.17

Although the exemptions to the §404 progra m are addressed more fully below, it is worth noting that

the denitions addressing discharges are careful to exclude certain activities that t he statute exempts.

For example, certain agricultural activities such as routine plowing, cultivating, seeding, and harvesting

are exempted from the denitions of discharge.18 ese agricultural exemptions are carefully drawn in

§404(f).19

e phrase “addition” has been extensively addressed in cases and regulations, which are described more

fully in Sections B(2), B(5), B(7), and B(9) below. As a general rule, de minimis, incidental soil move-

ment during dredging, which qua lies as “incidental fallback,” is exempted.20 Dredging cannot occur

without some normal, incidental fallback or dredged material from the dredge equipment. Historically,

the Corps declined to regulate those small, incidental discharges because it would mean regulating t he

dredging itself.21 Currently, the regulations exempt “incidental fallback” from the denition of “discharge

of dredged material.”22 However, the regu lations do not dene “incidental fallback.” Instead, the Corps

will conduct a case-by-case evaluation to determine whether a particular redeposit of dredge material will

be jurisdictional.23

e CWA denes “point source” very broadly to include “any discernible, conned and discrete” con-

veyance.24 Examples of point sources include pipes, ditches, channels, tunnels, conduits, wells, discrete

5. See, e.g., In re Alameda County Assessor’s Parcel Nos. 537-801-2-4 and 537-850-9, 672 F.Supp. 1278, 1284-85 (N.D. Cal. 1987), and the

cases cited therein.

6. See infra Chapter 3, Part II.

7. 33 C.F.R. §323.3(a) (2008).

8. Id. §323.2(c).

9. Id. §323.2(d).

10. 40 C.F.R. §§232.2(e), (g) (2008).

11. 33 C.F.R. §323.2(e).

12. “Fill” is dened by EPA as any pollutant that “replaces portions of the waters of the United States with dry land or which changes the bottom

elevation of a water body for any purpose.” 40 C.F.R. §232.2(i).

13. 67 Fed. Reg. 31129 (May 9, 2002).

14. 67 Fed. Reg. at 31131. See infra Part I.B.5.b.

15. 33 C.F.R. §232.2(f).

16. Id.

17. 40 C.F.R. §232.2(f).

18. 33 C.F.R. §§323.2(d), (f).

19. See 33 U.S.C. §1344(f).

20. 33 C.F.R. §323.2(d)(3)(iii).

21. See 51 Fed. Reg. 41210 (Nov. 13, 1986) (preamble to nal regulations). But see infra Section I.B.5 (proposal to regulate incidental discharges).

22. 33 C.F.R. §323.2(d)(2)(iii).

23. 73 Fed. Reg. 79641 (Dec. 30, 2008).

24. 33 U.S.C. §1362(14), ELR S. FWPCA §502(14).

Can Wetland Property Be Developed? Page 51

ssures, containers, rolling stock, and vessels. e only statutory exemption is for “agricultural storm water

discharges and return ows from irrigated agriculture.”25 While the agencies have not supplemented the

denition of “point source” through regulations, the courts have routinely found that construction equip-

ment, such as bulldozers, backhoes, and other heavy machinery, meets the denition.26

B. Examples of Regulated Activities

Courts have addressed whether certain activities in wetlands involve the discharge of a pollutant subject

to the CWA. A mong the activities that have received judicial attention a re landclearing, soil or sediment

redeposit from boat propellers, stream channelization, the placing of pilings for bridges and piers, dis-

charges subject to other authorities, the draining of wetla nds, runo into wetlands, deep ripping, and the

discharge of certa in mining overburden. e scope of these matters reects the broad range of activities

subject to §404.

1. Landclearing

In Avoyelles Sportsmen’s League v. Marsh,27 the U.S. Court of Appeals for the Fifth Circuit applied the

CWA’s denition of “discharge” to certain landclearing activ ities in wetlands. In Avoyelles, landowners had

converted a forested wetla nd to agricultura l use. e trees were cut above the ground surface by shearing

blades, the trees and vegetation were raked into windrows and burned,28 and then the ashes and remaining

organic materials were “disced” into the soil.29 Bulldozers and other machines were used to conduct these

landclearing activities. A citizens’ group sued the landowners, the Corps, and EPA, complaining that the

activities were unlawful under the CWA.30

e court had to decide whether landcleari ng under these circu mstance s, which deposited indigenous

material in a manner that destroyed the wetland, involved the dis charge of a pollutant a s dened under

the C WA. e court held that because “the la ndclearing ac tivities involved the redeposit of materi als,

rather than their mere removal,”31 there was a covered discha rge. Moreover, the court found that the veg-

etation, both burned and unburned, fell wit hin the de nitions of “ll material.”32 us, under Avoyelles,

the CWA regulate s activities in wetlands based on what is put into the wetla nds, not what is taken out.33

After the Avoyelles decision, the Corps has issued and periodica lly revised an RGL designed to advise

the Corps’ districts of the kinds of landclearing activities that require a CWA §404 permit. RGL 90-05,

which was rescinded by RGL 93-03, was the Corps’ most recent iteration34 and provided that (1) mecha-

nized landclearing, using equipment such as backhoes or bulldozers, in wetlands results in a redeposition

of soil and is subject to §404 regulation and (2)cutting trees above the soil surface with a chain saw, with

25. Id.

26. See, e.g., United States v. Larkins, 657 F.Supp. 76, 17 ELR 20783 (W.D. Ky. 1987), a’d, 852 F.2d 189, 18ELR 21416 (6th Cir. 1988), cert.

denied, 489 U.S. 1016 (1989) (earth-moving equipment used to build dike and levee); Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897,

922, 13 ELR 20942 (5th Cir. 1983) (bulldozers, landclearing equipment); United States v. Holland, 373 F.Supp. 665, 668, 4 ELR 20710

(M.D.Fla. 1974) (bulldozers).

27. 715 F.2d 897, 13 ELR 20942 (5th Cir. 1983).

28. Windrows are generally rows of leaves or other vegetation heaped up by the wind, or arranged in a similar fashion by man or machines.

29. e “disc” is a cultivation tool, generally attached to a tractor, used to turn over and mix layers of soil.

30. See infra Chapter 6, Citizen Enforcement.

31. Avoyelles, 715 F.2d at 923, 13 ELR at 20954-55.

32. Id. at 924, 13 ELR at 20955.

33. Similarly, in United States v. Hummel, the defendant constructed a sewer line, which involved excavating over 600 feet of trench approximately

30 inches wide and three feet deep, through wetlands. 2003 U.S. Dist. LEXIS 5656 (N.D. Ill. Apr. 8, 2003). e Corps issued a cease-and-

desist order and required the defendants to mitigate the wetlands violations and move the new sewer line to a location outside the wetlands.

When the defendants refused, the United States brought this action. e court held that the Corps had jurisdiction over the subject wetlands,

relying on the “signicant nexus” language in SWANCC. e court also declined to accept defendant’s argument that “side-casting,” which

involves placing excavated materials to the side within the wetlands, did not constitute the discharge of dredged materials. e court cited with

approval the Fourth Circuit’s opinion in United States v. Deaton, 209 F.3d 331, 30 ELR 20508 (4th Cir. 2000), which held that side-casting

constituted a discharge of dredged material that when done in a jurisdictional wetland required a CWA permit.

34. RGL 90-05 was issued March 13, 1990, and expired December 31, 1992. See 57 Fed. Reg. 6591 (1992). It was specically revoked in 1993,

because the Corps had promulgated regulations to cover the subject matter of the RGL. See RGL 93-3, Rescission of Regulatory Guidance

Letters (RGLs) 90-5, 90-7, and 90-8, 60 Fed. Reg. 13712 (Mar. 14, 1995).