Can Wetland Property Be Developed? Regulated Activities and Statutory Exemptions

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 41-66

Page 41

Chapter 3

Can Wetland Property Be Developed?

Regulated Activities and Statutor y Exemptions

A

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

Regulated?

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.6 “Dredged

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.

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 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).

10. 33 C.F.R. §323.2(e).

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.

§232.2(i).

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-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

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).