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
denition of “point source” through regulations, the courts have routinely found that construction equip-
ment, such as bulldozers, backhoes, and other heavy machinery, meets the denition.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 reects the broad range of activities
subject to §404.
In Avoyelles Sportsmen’s League v. Marsh,27 the U.S. Court of Appeals for the Fifth Circuit applied the
CWA’s denition 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 dened 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
26. See, e.g.
, United States v
. Larkins, 657 F
76, 17 ELR 20783 (W
, 852 F.2d 189
, 18ELR 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).
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 “signicant 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 specically 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).