Can Wetland Property Be Developed? Regulated Activities and Statutory Exemptions
Author | Margaret 'Peggy' Strand/Lowell Rothschild |
Pages | 41-66 |
Page 41
Chapter 3
Can WetlandProperty Be Developed?
Regulated Activitiesand StatutoryExemptions
A
series of questions and answers follows the
delineation and jurisdictional determina-
tion of wetlands. If a property has wetlands
or waters of the United States, the next consider-
ation is whether the proposed activity is regulated.
Not all wetland-impacting activities are consid-
ered regulated actions under the CWA. However,
if there is a reg ulated activity in jurisdictional
waters, the property owner must then consider
whether the activity is exempted from the permit
requirement. e CWA and its regulations estab-
lish categories of exemptions for certain activi-
ties. is chapter examines the scope of reg ulated
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
without a permit.1 e Act identies dredged or
ll material as one such pollutant and the §404
regulations dene wetlands as one such water. e
regulations dene ll material 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, given
that the Corps’ authority covers only some of the
actions that can impact wetlands, the terms “dis-
charge,” “pollutant,” and “point source” must be
understood in order to appreciate the scope of the
prohibited acts.
A. Pertinent Definitions
e CWA, the Corps’ regulations, and case law
interpreting §404 dene what constitutes a “pol-
lutant” and what constitutes a “discharge.” e Act
1. 33 U.S.C. §1311 (2006), ELR S. FWPCA §301.
denes “pollutant” to include “dredged spoil, solid
waste, incinerator residue, sewage, garbage, sew-
age sludge, munitions, chemical wastes, biological
materials, radioactive 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
dened as “any addition of any pollutant to navi-
gable waters from any point source.”3 ese broad
denitions 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. Although the CWA and regula-
tions exempt some discharges from the permit
requirement,4 the statutory prohibition is compre-
hensive. e courts have held that ll dirt is a pol-
lutant regulated under CWA §§301 and 404.5
e Corps ha s rened the statutory deni-
tions to give them meaning in the §404 context.
Specically, the Corps’ regulations use the terms
“dredged” and “ll,” requiring permits for the
discharge of dredged or ll material.6 “Dredged
material” is dened as “material that is excavated
or dredged from waters of the United States.”7A
discharge of dredged material includes “without
limitation, the addition of dredged material to
a specied discharge site located in waters of the
United States and the runo or overow from a
contained land or water disposal area.”8 EPA uses
2. 33 U.S.C. §1362(6) (2006), ELR S. FWPCA §502(6).
3. Id. §1362(12), ELR S. FWPCA §502(12).
4. See infra Chapter 3, Part II.
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. 33 C.F.R. §323.3(a) (2008).
7. Id. §323.2(c).
8. Id. §323.2(d).
Page 42 Wetlands Deskbook
the same denitions of “dredged material ” and
“discharge of dredged material.”9
Originally, the Corps and EPA had dierent
denitions of “ll material.” e Corps’ denition
was based on the “primary purpose” of the ll,10
while EPA’s denition was based on the eect of
the ll.11 In May 2002, the Corps revised its deni-
tions of “ll material” and “discharge of ll mate-
rial,” to, essentially, conform the denitions to
those of EPA.12 e Corps’ rule now diers only
slightly from EPA’s in that it specically excludes
trash or garbage from regulation.13
e Corps denes “discharge of ll material” as
simply “the addition of ll material into waters of
the United States,” but includes a long list of exam-
ples.14 ese include building causeways, roads,
dams, dikes, articial islands, any structure or
impoundment, site development lls for any use,
reclamation or protection devices, such as riprap,
groins, seawalls, or breakwaters, ll for intake or
outfall pipes or sewers, and articial reefs.15 EPA
uses the same denition and examples.16
Although the exemptions to the §404 program
are addressed more fully below, it is worth noting
that the denitions addressing discharges are care-
ful to exclude certain activities. For example, cer-
tain agricultural activities such as routine plowing,
cultivating, seeding, and harvesting are exempted
from the denitions of discharge.17 ese agricul-
tural exemptions are caref ully drawn in §404(f).18
De minimis, incidental soil movement during
dredging, which qualies as “incidental fallback,”
is also exempted.19 Dredging cannot occur without
some normal, incidental fallback or dredged mate-
rial from the dredge equipment. Historically, the
Corps declined to regulate those small, incidental
discharges because it would mean regulating the
dredging itself.20 Currently, the regulations set out
a federal policy that redeposit of material associated
9. 40 C.F.R. §232.2(e), (g) (2008).
10. 33 C.F.R. §323.2(e).
11. Fill is dened by EPA as any pollutant that “replaces portions of
the waters of the United States with dry land or which changes
12. 67 Fed. Reg. 31129 (May 9, 2002).
13. 67 Fed. Reg. at 31131. See infra Part 1.B.5.b.
14. 33 C.F.R. §232.2(f).
15. Id.
16. 40 C.F.R. §232.2(f).
17. 33 C.F.R. §323.2(d), (f).
18. See 33 U.S.C. §1344(f).
19. 33 C.F.R. §323.2(d)(3)(iii).
20. See 51 Fed. Reg. 41210 (Nov. 13, 1986) (preamble to nal
regulations). But see infra Section I.B.5. (proposal to regulate
incidental discharges).
with dredging results “in a discharge of dredged
material unless project-specic evidence shows that
the activity results in only incidental fallback.”21
e regulations dene incidental fallback in terms
of quantity of material and the location where
the material falls to limit the exemption to small
amounts that resettle at or near the origina l loca-
tion.22However, as addressed below, in 2007 the
District Court for the District of Columbia set
aside these regulations.23
e CWA denes “point source” very broadly
to include “any discernible, conned and discrete”
conveyance.24 Examples of point sources include
pipes, ditches, channels, tunnels, conduits, wells,
discrete ssures, containers, rolling stock, and
vessels. e only statutory exemption is for “agri-
cultural 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 rou-
tinely found that construction equipment, 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 sub-
ject to the CWA. A mong the activities that have
received judicial attention are landclearing, soil or
sediment redeposit from boat propellers, stream
channelization, the placing of pilings for bridges
and piers, discharges subject to other authorities,
the draining of wetlands, runo into wetlands,
deep ripping. and the discharge of certain mining
21. 33 C.F.R. §323.2(d)(2)(i).
22. 33 C.F.R. §323.2(d)(2)(ii) provides: “Incidental fallback is the
redeposit of small volumes of dredged material that is incidental
to excavation activity in waters of the United States when such
material falls back to substantially the same place as the initial
removal. Examples of incidental fallback include soil that is
disturbed when dirt is shoveled and the back-spill that comes
o a bucket when such small volume of soil or dirt falls into
substantially the same place from which it was initially removed.”
23. Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs,
2007 U.S. Dist. LEXIS 6366 (D.D.C. Jan. 30, 2007).
24. 33 U.S.C. §1362(14), ELR S. FWPCA §502(14).
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).
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
