Section 404 Permits

AuthorStephen M. Johnson
Chapter 6
Section 404 Permits
The cornerstone of federal wetlands protection is the Clean Water Act Section 404 permit
program. Chapters 4 and 5 of this book outlined the scope of activities that require a
Section 404 permit, but this Chapter will begin with a brief explanation of a few statutory
exemptions to the permit requirement that were not discussed in those chapters. Most of
the chapter, though, focuses on the processes and standards for the two types of Section
404 permits: General Permits and Individual Permits.
I. Permit Exemptions
Section 404(f)(1) of the
Clean Water Act exempts
from the Section 404 permit
requirement several cate-
gories of activities that are
primarily associated with
farming. Section 404(f)(1)(A),
for instance, exempts dis-
charges associated with
“normal farming, silviculture,
and ranching activities such
as plowing, seeding, cul-
tivating, minor drainage, har-
vesting for the production of
food, fiber and forest pro-
ducts, or upland soil and
water conservation projects”.
The exemptions in Section
404(f)(1), though, are tem-
pered by a “recapture” pro-
vision in Section 404(f)(2), which requires a permit for the activities if they are carried out
for the purpose of changing the use of the property and they impair the flow or circulation of
navigable waters or reduce their reach. The exemption for “normal farming, silviculture and
ranching activities” is described in the following excerpt.
Photo 31 USDA Photo -
United States v. Huebner
(7th Cir. 1985)
Bauer, Circuit Judge
In 1978, pursuant to litigation commenced under the Clean Water Act (CWA), * * * by the
United States Army Corps of Engineers (Corps), defendants Roland G. Huebner, William
Huebner and the Petenwell Potato Farms (Huebners), entered into a consent decree with
the Corps regarding the maintenance of the wetlands on their property. In 1983, following a
six-day hearing, the district court found the Huebners in contempt of the 1978 order and
ordered them to comply with a restoration plan developed by the Corps. The Huebners
appeal the lower court's contempt order and restoration plan. We affirm the district court's
finding of contempt * * *
In 1977, the Huebners, owners of a 4,000 acre vegetable farm, acquired "Bear Bluff
Farms," a 5,000 acre property in Jackson County, Wisconsin, the largest continuous area
of wetlands in Wisconsin. * * * Since the turn of the century Bear Bluff has been used
intermittently for a variety of agricultural purposes, including the production of dryland
crops, such as corn and oats. For the twenty years preceding the Huebners' ownership,
however, only cranberries have been grown on the land. * * * The record indicates that the
Huebners intended to expand the cranberry operations of Bear Bluff Farms and to use a
portion of the farm for growing vegetables and other upland crops.
In 1977, the Huebners began to plow sections of the farm to clear out existing ditches and
dig new ones. On September 2, 1977, the St. Paul District of the United States Army Corps
of Engineers issued several cease and desist orders to the Huebners, alleging that their
ditching activities constituted a permitless "discharge of dredged or fill material" into the
Bear Bluff wetlands in violation of section 301 of the Federal Water Pollution Control Act,
* * * On November 10, 1977 the Corps filed a complaint in the district court seeking a
permanent injunction and a financial penalty against the Huebners. In June, 1978 the
parties settled the action by entering into a consent decree approved by District Judge
James E. Doyle.
The Huebners complied with the immediate restoration provisions of the consent order. On
November 16, 1982, however, the government moved for an order to show cause why the
Huebners should not be held in contempt for violating the 1978 order. The government,
through its affidavits, charged that dredged material had been placed on the sides of
Beaver Creek and was sliding into the adjacent wetlands, that a portion of the wetland had
been plowed and furrowed by a marsh plow, and that the dikes of the Hunter's Peak,
Juleane and Unnamed Reservoirs had been leveled and scraped by a bulldozer without
notice to the Corps and without any Corps permit allowing such activity. The Huebners had
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planted barley in a plowed portion of the Hunter's Peak, and stated that they intended to
plant corn.5 * * *
On August 4, 1983 the district court entered an order holding the Huebners in civil
contempt of the court's 1978 consent order on the grounds that the government had proved
by "clear and convincing evidence" that the Huebners had made permitless discharges of
dredged and fill material into the Bear Bluff wetlands in violation of the 1978 order. The
Huebners allege that they are not in contempt of the district court's 1978 order because the
activities in which they engaged in on their land did not require a Corps permit. They allege
that the district court erred in its interpretation of the agricultural exemptions of the CWA, as
relevant to the 1978 consent order, in determining when permits are required. * * *
The Huebners did not challenge the authority of the Corps to regulate parts of Bear Bluff
Farms as wetlands in the district court, but argued that their activities were exempt from the
CWA's permit process under Section 1344(f)(1). The district court held that the phrase
"discharge of dredged or fill material" in the 1978 consent order incorporated the legal
meaning of those terms under the CWA and therefore the question of whether the
Huebners' permitless activities violated the terms of the 1978 consent decree hinged on the
court's interpretation of the scope of Section 1344(f)(1)'s exemptions. The district court held
that "[i]t is clear that the amendments that created the subsection (f) exceptions on which
defendants rely were not intended to exempt all farming operations from the permit
requirements, but only those whose effect upon wetlands or other waters was so minimal
as not to warrant federal review and supervision." R. 118, Order at 17-18. The court then
analyzed the defendants' actions in light of the purposes of the Clean Water Act, the intent
of Congress in enacting the farming exceptions, and the terms of the 1978 order. Our
review of the legislative history confirms the conclusion reached by the lower court.
Section 1344(f)(1) provides exemptions from the permit process for discharges into
wetlands caused by agricultural activities, such as plowing and the maintenance of dikes,
ponds, and farm roads.* * * The exceptions of Section 1344(f)(1) are subject to section
1344(f)(2), however, which provides that discharges are not exempt from the permit
process if they bring "an area of the navigable waters into a use to which it was not
previously subject, where the flow or circulation of navigable waters may be impaired or the
reach of such waters be reduced."
Our review of the legislative history of the agricultural exemptions convinces us that
because of the significance of inland wetlands, which make up eighty-five percent of the
nation's wetlands, * * * Congress intended that Section 1344(f)(1) exempt from the permit
5 The Huebners stated that they needed an immediate cash crop to pay for the equipment
costs of their dredge and fill activities. R. 51. Cranberries take several years to become fully

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