Section 404 Permits

• Author: Stephen M. Johnson
• Pages: 219-265

219

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 -

http://commons.wikimedia.org/wiki/File:GreenCountyWI.jpg

220

United States v. Huebner

752 F.2d 1235

(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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221

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

productive.