Can Wetland Property Be Developed? Regulated Activities and Statutory Exemptions

AuthorMargaret 'Peggy' Strand/Lowell Rothschild
Page 41
Chapter 3
Can Wetland Property Be Developed?
Regulated Activities and Statutor y Exemptions
series of questions and answers follows the
delineation and juri sdictional 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 activ ities are consid-
ered regu lated actions under the CWA. However,
if there is a reg ulated activity in jurisdictional
waters, the property owner must then consider
whether t he act ivity is exempted from the per mit
requirement. e CWA and its regulations estab-
lish categories of exemptions for cer tain activ i-
ties. i s chapter examines the scope of reg ulated
activities a nd the exemptions.
I. What Activities in Wetlands Are
e CWA prohibits the discha rge of a pollutant
from a point source into waters of the United States
without a permit.1 e Act identies dredged or
ll material as one such pollutant and the §404
regulations dene wet lands as one such water. e
regulations dene 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 t he Corps’ authority covers only some of the
actions t hat 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 c ase law
interpreting §404 dene what constitutes a “pol-
lutant” and what constitutes a “discharge.” e Act
1. 33 U.S.C. §1311 (2006), ELR S. FWPCA §301.
denes “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
dened as “any addition of any pollutant to navi-
gable waters f rom any point source.”3 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. Although the CWA and regula-
tions exempt some discharges from the permit
requirement,4 the statutory prohibition is compre-
hensive. e courts have held t hat ll dirt is a pol-
lutant regulated under CWA §§301 and 404.5
e Corps ha s rened the statutory deni-
tions to give them meaning in the §404 context.
Specically, the Corps’ regulations use the terms
“dredged” and “ll,” requiring permits for the
discharge of dredged or ll material.6Dredged
material” is dened as “material t hat is excavated
or dredged from waters of the United States.7 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.”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.
7. Id. §323.2(c).
8. Id. §323.2(d).
Page 42 Wetlands Deskbook
the same denitions of “dredged material ” and
“discharge of dredged material.”9
Originally, the Corps and EPA had dierent
denitions of “ll material.” e Corps’ denition
was based on the “primary purpose” of the ll,10
while EPA’s denition was based on t he eect of
the ll.11 In May 2002, the Corps revised its deni-
tions of “ll material” and “discharge of ll mate-
rial,” to, essentially, conform the denitions to
those of EPA.12 e Corps’ rule now diers only
slightly from EPA’s in that it specically excludes
trash or garbage from regulation.13
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 exam-
ples.14 ese include building causeways, road s,
dams, di kes, art icial isla nds, any structure or
impoundment, site development lls for any use,
reclamation or protection dev ices, such as riprap,
groins, seawalls, or breakwaters, ll for intake or
outfall pipes or sewers, and articial reefs.15 EPA
uses the same denition and examples.16
Although t he exemptions to the §404 program
are addressed more f ully below, it is worth noting
that the denitions addressing discha rges are ca re-
ful to exclude certain activities. For example, cer-
tain agricultural activities such as routine plowing,
cultivating, seeding, and harvesting a re exempted
from the denitions of discharge.17 ese agricul-
tural exemptions are caref ully drawn in §404(f).18
De minimis, incidental soil movement during
dredging, which qualies 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).
11. 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.
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.
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-specic evidence shows that
the activity results in only incidental fallback.”21
e regulations dene incidental fa llback in terms
of quantity of material and the location where
the material falls to limit the exemption to small
amounts that reset tle at or near t he origina l loca-
tion.22 However, as addressed below, in 2007 the
District Court for the District of Columbia set
aside these regulations.23
e CWA denes “point source” very broadly
to include “any discernible, conned and discrete”
conveyance.24 Examples of point sources include
pipes, ditches, channels, t unnels, conduits, wells,
discrete ssures, containers, roll ing stock, and
vessels. e only statutory exemption is for “agri-
cultural storm water discharges and return ows
from irrigated agriculture.”25 While the a gencies
have not supplemented the denition of “point
source” t hrough regulations, the courts have rou-
tinely found that construction equipment, such as
bulldozers, backhoes, a nd other heavy machinery,
meets the denition.26
B. Examples of Regulated Activities
Courts have addressed whether certa in activities in
wetlands involve the d ischarge of a pollutant sub-
ject to the CWA. A mong t he 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
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).

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