Petition for Writ of Certiorari — Huebner v. United States

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FILED

| APR 20 1986

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United States Supreme Court

October Term, 1984

ROLAND G. HUEBNER, WILLIAM HUEBNER, and PETENWELL

POTATO FARMS,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

Petition for Writ of

Certiorari and Appendix

Arvid A. Sather

Carol Skornicka

Michael, Best & Friedrich

913 First Wisconsin Plaza

Post Office Box 1806

Madison, WI 53701-1806

(608) 257-3501

Attorneys for Petitioners

nA Qa

QUESTION PRESENTED

Inperforming certain farming activities, suchas the mainte-

nance and construction of irrigation ditches, must farmers obtain

apermit fromthe U.S. Army Corps of Engineers, as required by

the Clean Water Act of 1977, 33 U.S.C. § 1344(a), or are they

excused from the permit requirement under the agricultural

exemptions provided in Section 1344(f) of the Act?

LIST OF PARTIES

The names ofall parties to the proceeding in the U.S. Court

of Appeals, Seventh Circuit, are contained in the caption of the

case in this Court.

TABLE OF CONTENTS

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REASONS FOR NOTING PROBABLE JURISDICTION............. 6-8

Og BL SRE Re i a Se cn Ne an TOILE ted LEER RE RACE ee ROE S

Appendix A - Decision of the U.S. Court of

Appeals for the Seventh Circuit

Appendix B - Judgment of the U.S. Court of

Appeals for the Seventh Circuit

Appendix C - Orders of the U.S. District Court

for the Western District of Wisconsin

Appendix D - Judgment of thte U.S. District Court

for the Western District of Wisconsin

to

TABLE OF AUTHORITIES

FEDERAL STATUTES:

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OPINIONS BELOW

The opinion of the U.S. Court of Appeals, Seventh Circuit,

reported at 752 F.2d 1235 (7th Cir. 1985), is reproduced at

Appendix A. The opinions of the U.S. District Court for the

Western District of Wisconsin, not reported, are reproduced at

Appendix C.

JURISDICTION

The judgment of the U.S. Court of Appeals, Seventh Cir-

cuit, was entered on January 11, 1985, and is reproduced at

Appendix B. This petition for writ of certiorari was filed within

90 days of that date. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS

This case involves the Clean Water Act of 1977 (“CWA”), 33

U.S.C. §§ 1251 et seq.

33 U.S.C. § 1311(a) prohibits the discharge of pollutants

into wetlands: “Except as in compliance with this section and

section . . . 1344 of this title, the discharge of any pollutant by

3

any person shall be unlawful.” 33 U.S.C. § 1362(6) includes dredged

spoil in the definition of pollutant: “The term ‘pollutant’ means

dredged spoil...”

33 U.S.C. § 1544 establishes the authority for the Section

404 permit program. It provides in relevant part:

(a) The Secretary may issue permits, after notice and

opportunity for public hearings for the discharge of dredged

or fill material into the navigable waters at specified clis-

posal sites.

(dl) The term “Secretary” as used in this section means

the Secretary of the Army, acting through the Chief of

Engineers.

(f(1) Except as provided in paragraph (2) of this sub-

section, the discharge of dredged or fill material —

(A) from normal farming. . . activities such as plow-

ing, seeding, cultivating, minor drainage, harvesting

for the production of food, fiber, and forest products, or

upland soil and water conservation practices;

(C) for the purpose of construction or maintenance

of farm .. . irrigation ditches, or the maintenance of

drainage ditches;

(E) for the purpose of construction or maintenance

of farm roads or forest roads . . . where such roads are

constructed and maintained, in accordance with best

management practices, to assure that flow and circula-

tion patterns and chemical and biological characteristics

of the navigable waters are not impaired, that the reach

of navigable waters is not reduced, and that any adverse

effect on the aquatic environment will be otherwise

minimized;

is not prohibited by or otherwise subject to regulation under

this section or section 1311(a) or 1542 of this title. . .

(2) Any discharge of dredged or fill material into the

navigable waters incidental to any activity having as its

purpose bringing 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, shall be required to have a per-

mit under this section.

STATEMENT OF THE CASE

The petitioners, Roland G. Huebner, William Huebner and

Petenwell Potato Farms (“Huebners”), in 1977 purchased 5,000

acres of land in Jackson County, Wisconsin, which had been used

for agricultural purposes since 1900. They continued to farm a

57-acre cranberry bed and cultivated some other crops on por-

tions of this property known as “Bear Bluff Farms.”

In 1977 the U.S. Army Corps of Engineers (“Corps”) issued

a cease-and-desist order and filed a complaint in the U.S. Dis-

trict Court for the Western District of Wisconsin, alleging that

the Huebners’ ditching activities constituted a permitless “dis-

charge of dredged or fill material” into a wetland, in vie lation

of the CWA.

The Huebners and the Corps resolved their dispute by enter-

ing into a consent decree which was approved by the district

court onJune 5, 1978. Paragraph 1 of the consent decree enjoined

the Huebners “from any and all operations which constitute the

discharge of dredged or fill material into waters of the United

States, including wetlands . . . except as in accordance with a

Department of Army permit and other lawful authority.”

In conjunction with their cranberry bed and croplands at

Bear Bluff Farms, the Huebners operated an irrigation system

involving 30 miles of irrigation ditches and numerous water con-

trol structures. From 1977 to November, 1982, the Huebners

a |

cleaned and maintained the irrigation ditches which had existed

prior to their purchase of the property, and they constructed and

maintained new irrigation ditches. They enlarged their 57-acre

cranberry bed in 1979-80 by adding 10 adjacent acres, of which 5

acres constituted wetlands as defined under the CWA. The Hueb-

ners did not obtain Section 404 permits for these activities.

The ongoing cleaning and construction of irrigation ditches

was performed according to the customary farming practice of

depositing the material cleaned from the irrigation ditch onto a

spoil bank adjacent to the ditch. The top of the spoil bank is then

leveled and the bank used as a farm road to permit access to the

water control structures throughout the irrigation system and in

conducting farming activity. Such farm roads are vital to the use

and maintenance of the irrigation system.

On November 17, 1982, the Corps initiated a contempt-of-

court proceeding, contending that the Huebners had violated the

consent decree in that they failed to obtain a Section 404 permit

prior to cleaning and constructing ditches, constructing farm

roads, and expanding the cranberry bed. The district court

derived jurisdiction from 28 U.S.C. § 1331; 33 U.S.C. §$§ 1311,

1342 and 1344; and 18 U.S.C. § 401.

The district court determined that the ditching activity required

a Section 404 permit on the following basis:

I interpret this language [Section 1344(f(1)(C), the irriga-

tion ditch exemption] as exempting only those deposits lof

dredged material] which go to make up a dike that is an

integral part of the ditch. If the resulting spoil bank is merely

incidental to construction; that is, it is created simply because

it is easier and cheaper to dump the spoil on the site than to

haul it to an upland area for deposit, the purpose is not

construction, but convenience. If the buildup of the spoil

bank is not reasonably necessary to the purposes of irriga-

tion, the spoil bank is no different from any other dike in a

wetlands area and is exempt only if it qualifies under another

exception. (Appendix C, p. 18)

iia enn |

The district court also determined that the expansion of the

cranberry bed required a Section 404 permit because it consti-

tuted an activity which brought the area into a new use, contrary

to Section 1344(f(2). (Appendix C, pp. 24-25)

The court of appeals affirmed the “district court's narrow

interpretation of the agricultural exemptions” (Appendix A,

p. 11) and the determination that these activities required Sec-

tion 404 permits (Appendix A, pp. 13-15).

REASONS FOR NOTING PROBABLE JURISDICTION

This Court should take jurisdiction of this case because it

raises an important question of federal law which has not been,

but should be, settled by this Court. Sup. Ct. R. 17.1(¢). The

lower courts’ interpretation and application of the 33 U.S.C.

§ 1344(f) exemptions of certain farming activities from the Sec-

tion 404 Corps permit requirement presents a question of first

impression in the federal judicial system. This issue arises in the

context of a contempt proceeding, and the court of appeals stated

that the issue of“. . . whether the Huebners’ permitless activities

violated the terms of the 1978 consent decree hingels! on the

court’s interpretation of the scope of Section 1344(f(1)'s —

tions.” (Appendix A, p. 8)

The court of appeals, affirming the district court, has imposed

a highly restrictive interpretation upon the agricultural exemp-

tions of Section 1344(f(1) by its narrow reading of Section L444

(f)(2). The court's imposition of its reading of 1344(f(2) upon the

exemptions of 1344(f\(1) totally emasculates the agricultural exemp-

tions. The lower courts’ interpretration of the phrase “bringing

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”

in essence precludes application of the agricultural exemptions to

many important, normal, day-to-day farming activities.

7

The decision of the court of appeals presents an important

question of statutory interpretation and administration of the

CWA, particularly the Section 404 permit requirement, as it

relates Lo the entire agricultural community which operates in or

near wetlands. This is a matter of national significance concern-

ing which this Court must be the final arbiter.

There are tens of thousands of farming operations which

rely upon the agricultural exemptions in their ongoing activities.

The court of appeals’ interpretation of these exemptions estab-

lishes a judicial precedent which seriously jeopardizes farmers’

ability to rely upon these exemptions and produces confusion

within the national farming community concerning how the Sec-

tion 404 permit requirements apply to normal farming activities.

Both courts below have held that the deposit of material

cleaned from an existing ditch or dredged in the construction of a

new ditch and deposited in the wetland as a spoil bank adjacent to

the ditch is not exempt unless the spoil bank constitutes “an

integral part of the ditch” itself. However, a spoil bank is not a

part of the ditch. Under normal farming operations, the waste

material produced when a ditch is created or maintained is side-

cast next to the ditch; it is not an actual part of the ditch. The

courts’ interpretation of Section 1344(f is without basis in fact or

law, and has the effect of eliminating agricultural ditching from

the activities which Congress intended to be exempt from the

Section 404 permit requirement.

Similarly, the courts’ determination that the Huebners

required a Section 404 permit to include 5 acres of wetlands in the

expansion of an existing 57-acre cranberry bed constitutes an

erroneously restrictive interpretation of 33 U.S.C. § 1344(f) and

is contrary to the intent of Congress. The court determined that

this activity constituted bringing an area into a new use and

impaired the circulation or reach of navigable waters under Sec-

tion 1344(f(2), thus requiring a Section 404 permit. Such a restric-

tive interpretation of Section 1344(f has the effect of rendering

numerous activities normally performed in an ongoing farming

operation subject to the requirement of a Section 404 permit and

defeats the purpose of Congress in establishing these exemptions.

The court of appeals bases its interpretation of the agricul-

tural exemptions upon an incorrect reading of the legislative

history of the 1977 amendments tothe CWA. The court of appeals’

narrow interpretation of these exemptions has the effect of ren-

dering the exemptions a nullity in normal, day-to-day farming

activities. Considering the expansive definition of wetlands under

the CWA, such an interpretation subjects the farming commu-

nity tothe burdensome and time-consuming process of obtaining

Section 404 permits for routine farming activities — a require-

ment which Congress intended to avoid in enacting the specific

agricultural exemptions set forth in Section 1344(f).

CONCLUSION

The decision of the court of appeals interpreting the agricul-

tural exemptions of the Section 404 permit requirement denies

rights granted by Congress to the extensive farming community

within that circuit's jurisdiction and establishes precedence in

resolving a question of first impression which has national signif-

icance. Because of the importance of the court's statutory inter-

pretation and the pervasive impact of the Section 404 permit

program upon the national farming community, review by this

Court is warranted.

Dated this 10th day of April, 1985.

Respectfully submitted,

Arvid A. Sather

Carol Skornicka

Michael, Best & Friedrich

913 First Wisconsin Plaza

Post Office Box 1806

Madison, WI 53701-1806

(608) 257-3501

Attorneys for Petitioners

Appendix A A-l

In the

United States Court of Appeals

For the Seventh Circuit

No. 83-3140 et:

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

‘

ROLAND G. HUEBNER, WILLIAM HUEBNER, and PETENWELL

POTATO FARMS,

Defendants- Appellants

Appeal from the United States District Court

for the Western District of Wisconsin

No. 77 C 407 —Barhbara B. Crabb. / du

ARGUED SEPTEMBER 12, 1984— DECIDED JANUARY 11, 1985

Before BAUER, Circuit Judge, PELL, Senior Circuit

Judge, and DUPREE, Senior District Judge

BAUER, Circuit Judge. in 1978, pursuant to litiga-

tion commenced under the Clean Water Act (CWA), 33

U.S.C. § 1251 ef seg. (1978), 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

Honorable Franklin T. Dupree, Jr., Senior District Judge for

the Eastern District of North Carolina, is sitting by designation

A-2

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, reverse the dis-

trict court’s restoration order and remand with instruc-

tions.

I. FACTS

In 1977, the Huebners, owners of a 4,000 acre vege-

table farm, acquired “Bear Bluff Farms,” a 5,000 acre

property in Jackson County, Wisconsin, the largest con-

tinuous area of wetlands in Wisconsin. The wetlands on

Bear Bluff provide a habitat for wetland foliage and

wildlife, and moderate the flow of water to surrounding

wildlife refuges by absorbing excess stream flow in periods

of high water and releasing water during the dry season.’

Since the turn of the century Bear Bluff has been used

intermittently for a variety of agricultural purposes, in-

cluding 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. Cranberry cultivation requires a constant supply

of water to protect against frost, to flood the berries for

har vesting, to mulch them in the winter and to irrigate

The Wisconsin wetlands are characterized by a layer of

sphagnum moss overlaying a varying depth of Dawson peat and

Palms muck which rest on gray siliceas sand. Generally the area

is comprised of large exposures of sedge meadows, interspersed

with shrub swamp, occasional upland areas and bogs. The area is

generally vegetated with black spruce and heath species.

Beggar-tick, smartweeds and crabgrass grow near the reser-

voirs, while coontail, pondweed and grass grow in the ditches.

Sandhill cranes, sharptailed grouse, Canadian geese, and rap-

tors, such as marsh hawks, roughlegged hawks and short-eared

owls, feed and nest in the wetlands. White tailed deer and other

furbearing mammals also use the wetlands for fawning and

browsing. Schools of bullheads travel the ditches. R. 34, 35 & 49.

A-3

them in the growing season.’ When the Huebners acquired

Bear Bluff, the farm included three cranberry beds, in-

cluding a fifty-seven acre cranberry bed called the Staege

bed on the southern part of the property. The Staege bed

was served by three diked reservoirs: the Hunter’s Peak,

Juliane and Unnamed Reservoirs. 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 Crops 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, 33

U.S.C. § 1811 (1976), renamed the “Clean Water Act” in

1977. On November 10, 1977 the Corps filed a complaint in

The Amicus Curiae brief of the Wisconsin Cranberry Growers

Association indicates that Wisconsin leads the nation in the

production of cranberries, which grow well in the inland wet-

lands of that state. Of the 110,000 wetlands acres owned by

Wisconsin cranberry farmers, only 6% of the total acreage is

developed into beds where cranberry plants are grown. The

remaining 94% of acreage contains each cranberry bog’s water

control systern through which water is supplied to the beds by

means of reservoirs, dikes, dams, ditches, canals, bulkheads,

pumps, and sprinklers.

See S. REP. 1236, 92nd Cong. 2d Sess. 99 (1972), U.S. CoDE

Conc. & ADMIN. NEWS 1972, p. 3668, reprinted in Environmental

Policy Division of the Congressional Reference Service, 1 A

LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT

AMENDMENTS OF 1972 at 282 (Comm. Print 1973) (hereinafter

“LEGISLATIVE HISTORY”). In 1977, Congress approved the

shortened “Clean Water Act” title. H. REP. No. 830, 95th Cong.

lst Sess. 1 (1977), U.S. CoDE ConG. & ADMIN. NEWS 1977, p. 4326,

reprinted in 3 LEGISLATIVE HISTORY, at 185.

es |

A-4

rhe cd a

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.

Paragraphs 1 and 2 of the ten paragraph order are

most significant for purposes of this appeal. Paragraph 1

permanently enjoins the Huebners “from any and all

operations which constitute the discharge of dredged or

fill material into waters of the United States, including

wetlands within the... described area of Jackson County,

Wisconsin ... except as in accordance with a Department

of Army permit and other lawful authority.” Paragraph 2

requires that the Huebners notify the Corps “in writing,

twenty (20) days prior to the commencement of any

discharge of dredged or fill material on any portion or

portions of the land described in paragraph 1,” so that the

Corps could ‘notify the defendants, in writing, of the

need for the Department of Army permit as to the stated

sites.”

Paragraphs 4, 5 and 7 relate principally to the resto-

ration and continued maintenance of wetlands in the

Hunters Peak, Juleane and Unnamed Reservoirs. Para-

graphs 4 and 5 describe certain restoration and mainte-

nance activities to be performed by the Huebners on

culverts, embankments and ditches, which activities would

restore the ditches and dikes to the dimensions existing

prior to the dredging that prompted the order. Para-

graph 7 requires the Huebners to “maintain and operate

the control structures and reservoirs referred to in para-

graph 4 above in a safe manner, for maximum drainage

control, and to protect the integrity of the dikes and the

structures therein.’

‘ Paragraph 6 requires that the mandates of Paragraph 4 be

completed by July 15, 1978. Paragraph 3 imposes a one thousand

dollar fine on the Huebners. Paragraphs 8, 9 and 10 order the

Huebners not to apply for any after the fact permits, to afford

Corps personnel access to their premises and to bear their own

costs in the case.

A-5

The Huebners complied with the immediate restora-

tion 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, Julane 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 planted barley

in a plowed portion of the Hunter’s Peak, and stated that

they intended to plant corn.’

The district court adopted the government’s “pro-

posed finding of fact” as “preliminary findings of fact” on

January 17, 1983, and held evidentiary hearings for six

days, in April and May of 1983. 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 per-

mitless 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

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.

i iia ais

A-6

when permits are required. The Huebners also argue that

the district court denied them due process by improperly

excluding certain evidence during the contempt hearing,

and that the court abused its discretion in refusing to

amend the 1983 restoration plan.

II. THE CLEAN WATER ACT

Congress enacted the CWA “to restore and maintain

the chemical, physical and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a) (1978). The goal of

the CWA is to eliminate by 1985 “the discharge of pollu-

tants into navigable waters.” 33 U.S.C. § 1251(a)(1)

(1978).

The “navigable waters” subject to Corps authority

under the Act include wetlands, which have been defined

as

those areas that are inundated or saturated by surface

or ground water at a frequency and duration

sufficient to support, and that under normal circum-

stances do support, a prevalence of vegetation typi-

cally adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes, bogs

and similar areas.

33 C.F.R. § 323.2(a)(7)(c) (1983). The term “navigable

waters” has been given “the broadest constitutional in-

terpretation,”’ 1 LEGISLATIVE HISTORY at 178 (Senate

Consideration of the Conference Report on S. 2770, Oct. 4,

1972), in recognition of the fact that

[t]he regulation of activities that cause water

pollution . .. must focus on all waters that together

form the entire aquatic system. Water moves in

hydrologic cycles, and the pollution of [a] part of the

aquatic system ... will affect the water quality of the

other waters within that aquatic system.

42 Fed. Reg. 37,128 (1977). See also 2 LEGISLATIVE

A-7

HISTORY at 1495 (Report of Senate Committee on Public

Works).°

The CWA defines “pollutant” to include ‘dredged soil

. rock, sand, [and] cellar dirt,” 33 U.S.C. § 13862(6)

(1978), and establishes a permit system to control dis-

charges of dredged material. Section 1344 of the Act

authorizes the Secretary of the Army to act through the

Corps to issue such permits under certain conditions and

procedures.’ The permit process is ‘“[t]}he cornerstone of

the . . . scheme for cleaning up the nation’s waters.”

United States Steel Corp. v. Train, 556 F.2d 822, 829 (7th

Cir. 1977). See also Mobil Oil Corp. v. United States E.P.A.,

716 F.2d 1187, 1189 (7th Cir. 1983), cert. denied, 104 S. Ct.

2363 (1984); Citezens for a Better Environment v.

Environmental Protection Agency, 596 F.2d 720, 721-22

(7th Cir. 1979); United States v. Byrd, 609 F.2d 1204, 1206

(7th Cir. 1979); American Meat Institute v. Environmental

Protection Agency, 526 F.2d 442, 444-45 (7th Cir. 1975).

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 “dis-

6

Under this definition, “wetlands” have been held to include

artificially created canals, Weiszmann v. District Engineer, 526

F.2d 1302 (5th Cir. 1976); normally dry arroyos, United States v.

Phelps Dodge Corp., 391 F. Supp. 1181 (D. Ariz. 1975); and

mangrove wetlands, P.F.Z. Properties, Inc. v. Train, 393 F. Supp.

1370 (D.D.C. 1975); United States v. Holland, 373 F. Supp. 665

(M.D. Fla. 1974).

7

This delegation of authority to the Corps recognizes the

Army Corps of Engineers’ historic role in preserving the

navigability of the waterways of the United States. See

generally Caplin, Js Congress Protecting our Water? The Con-

troversy Over Section 404, Federal Water Pollution Control Act

Amendments of 1972, 31 U. MIAMI L. REV. 445, 448 (1977);

Ablard & O’Neill, Wetland Protection and Section 404 of the

Federal Water Pollution Control Act Amendments of 1972: A

Corps of Engineers Renaissance, 1 VT. L. REV. 51, 54-58 (1976).

A-8

charge 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 de-

fendants 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 min-

imal 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 farm-

ing 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 per-

mit process for discharges into wetlands caused by agri-

cultural activities, such as plowing and the maintenance of

dikes, ponds, and farm roads.* The exceptions of Section

* Section 1344(f)(1) provides exemptions for discharges:

(A) from normal farming, silviculture, and ranching

activities such as plowing, seeding, cultivating, minor

drainage, harvesting for the production of food, fiber, and

forest products, or upland soil and water conservation

practices;

(B) for the purpose of maintenance, including emer-

gency reconstruction of recently damaged parts, of cur-

rently serviceable structures such as dikes, dams, levees,

groins, riprap, breakwaters, causeways, and bridge abut-

ments or approaches, and transportation structures;

(Footnote continued on following page)

A-9

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 agricul-

tural exemptions convinces us that because of the signifi-

cance 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 process only

“narrowly defined activities ... that cause little or no

adverse effects either individually or cumulatively [and

continued

(C) for the purpose of construction or maintenance of

farm or stock ponds or irrigation ditches, or the mainte-

nance of drainage ditches; [and]...

(E) for the purpose of construction or maintenance of

farm roads or forest roads, or temporary roads for moving

mining equipment, where such roads are constructed and

maintained, in accordance with best management prac-

tices, to assure that flow and circulation patterns and

chemical and biological characteristics of the navigable

waters are not impaired, that the reach of the navigable

waters is not reduced, and that any adverse effect on the

aquatic environment will be otherwise minimized.

9

Congress recognized that the protection of the waters of the

United States required an “organic” concept of the national

aquatic system and attempted to enact in the Clean Water Acta

permit system with “no gaps” in its protective measures. 4

LEGISLATIVE HISTORY 907 (statement of Sen. Hart) (excerpts

from debate on the Bentsen Amendment); id. at 897 (statement

of Sen. Randolph during Senate Debate on S. 1952, August 4,

1977). Congress purposefully included nonnavigable inland

(Footnote continued on following page)

A-10

which do not] convert more extensive areas of water into

dry land or impede circulation or reduce the reach and size

of the water body.” 3 LEGISLATIVE HISTORY at 420 (state-

ment of Rep. Harsha, member of the conference com-

mittee, during House debates). See also id. at 474. The

Fifth Circuit also has held that § 1344(f)(1) was designed

to be a “narrow exemption.” Avoyelles Sportsmen's League,

Inc. v. Marsh, 715 F.2d 897, 925 n.44 (5th Cir. 1983).

Recognizing that “there has been widespread concern

that many activities that are normally considered routine

would be prohibited or made extremely difficult because of

the complex regulatory procedures,” 4 LEGISLATIVE HIs-

TORY 897 (statement of Sen. Randolph), Congress enacted

in the 1977 amendments a delicate balance of exceptions

that protected wetlands while permitting routine activi-

ties to go on unimpeded.

The drainages exemption is very clearly intended to

put to rest, once and for all, the fears that permits are

* continued

wetlands in the definition of navigable waters because of their

importance in the chain of travel of toxic pollutants. 4 LEGISLA-

TIVE HISTORY 928 (statement Sen. Muskie). “Routine farming

operations release substantial quantities of contaminants in-

cluding sediment, salt, nutrients, pesticides, organic materials

and pathogens into our waterways. It has been estimated, for

instance, by the U.S. Soil Conservation Service, that cropland is

responsible for 50 percent of the total sediment entering inland

waterways.” 4 LEGISLATIVE HISTORY at 1062 (statement of Sen.

Muskie). President Carter estimated that inland wetlands were

worth “$50,000 per acre,” but noted that “our economic system

does not transfer this wealth to individual owners. Therefore,

wetlands will continue to be destroyed until the government

takes steps to protect them.” /d. at 1251 (statement of Presi-

dent Jimmy Carter). Other proponents of the amendment

noted that wetlands were being destroyed at the rate of 300,000

acres a year. 4 LEGISLATIVE HISTORY 882 (statement of Sen.

Stafford during Senate Debate on S. 1952, August 4, 1977). The

need for land for residential purposes has prompted the con-

version of many wetlands. 31 U. MIAMI L. REV. 445, 491 (1977).

A-1l

required for draining poorly drained farm or forest

land of which millions of acres exist. No permits are

required for such drainage. Permits are required only

where ditches or channels are dredged in a swamp,

marsh, bog or other truly aquatic area.

4 LEGISLATIVE HISTORY 1042 (statement of Sen. Muskie)."°

We therefore affirm the district court’s narrow inter-

pretation of the agriculturai exemptions and its in-

corporation of the purpose of those exemptions into the

finding of contempt against the Huebners for violation of

the 1978 consent decree.

III. FINDINGS AS TO SPECIFIC ACTIVITIES

ON BEAR BLUFF FARMS

In civil contempt proceedings for violations of a

consent decree, plaintiffs must prove the violations by

clear and convincing evidence in the trial court. Squilla-

cote v. Local 248, Meat & Allied Food Wkrs., 534 F.2d 735,

747 (7th Cir. 1976). The court’s factual determinations

are accorded great weight on appeal when they depend on

credibility determinations based on the demeanor of wit-

nesses at trial. Cf. NLRB v. Cutting, Inc., 701 F.2d 659, 663

(7th Cir. 1983). Moreover, the remedy chosen by the trial

court in a contempt proceeding on a consent decree is

“discretionary in character and is not to be reversed

‘’° Answering Senator Dole’s question as to whether a permit

would be necessary if one or two farmers got together and dug

small ditches in order to drain a low lying area to improve the

production of crops, Senator Muskie responded that:

{T|he Corps definition requires a prevalence of aquatic

vegetation and is intended to describe only the true swamps

and marshes that are part of the aquatic ecosystem. The

type of drainage [described by Senator Dole] could be

performed without discharging dredged or fill material in

water or would occur in areas that are not true marshes or

swamps intended to be protected by section 404.

4 LEGISLATIVE HISTORY 1042-43.

A-12

except for abuse of such discretion or unless clearly er-

roneous.” Walaschek & Associates, Inc. v. Crow, 733 F.2d 51,

53 (7th Cir. 1984), quoting Jewel Tea Co. v. Kraus, 204 F.2d

549, 551 (7th Cir. 1953). Our review of the lower court's

findings of fact and conclusions of law as to the particular

challenged activities is guided therefore by these stan-

dards.

A. Plowing the Reservoirs

The lower court found that the Huebners used a

marsh plow to plow and remove wetland vegetation from

the three reservoirs at sites 10, 11 and 12, and leveled the

dikes in these reservoirs. The court found that the

Huebners plowed the reservoirs to decrease the capacity of

the soil to store water in preparation for the immediate

planting of barley and for the future planting of corn and

other dryland crops. The court held that in doing so the

Huebners failed “to protect the integrity of the dikes”

and to guarantee “maximum drainage control” in direct

violation of paragraph 7 of the 1978 consent decree.

The Huebners do not deny these activities but argue

that they were not required to notify the Corps or obtain a

permit for the plowing of the reservoirs because the

“nonfunctional and nonproductive” nature of the reser-

voirs required that they cease to be used as reservoirs. The

Huebners claim that their activity will make the reser-

voirs “more effective land,” and argue on appeal that “the

so-called reservoirs had been cropped for decades before

the unsuccessful attempt to convert this land into reser-

voirs in 1956.” The Huebners stated purpose, however, is in

direct opposition not only to the purposes of the Clean

Water Act, but, more importantly, to the terms of the

consent decree, which required a return to the status of

the land as it had existed prior to the discharge activities

which had initially prompted the 1978 order. We there-

fore affirm the court's finding that the Huebners were in

violation of the 1978 order when they plowed the reser-

voirs.

A-13

B. Cleaning, Deepening and Digging Ditches

In conjunction with the plowing of the reservoirs, the

district court found that the Huebners had used backhoes

to clea: and deepen existing ditches at sites 1, 2 and 14

and used a dragline to excavate an approximately 400 foot

long new ditch at site 3. The court found that the result of

the deepening activities at sites 2 and 14 was to drain the

reservoirs. The court also found that at sites 1, 2,3 and 14

the Huebners had sidecast materials onto the wetlands,

used bulldozers to spread the discharge over several acres,

and formed the materials into farm roads which were

broader than necessary according to best management

practices.

The Huebners argue that the evidence showed that

their ditches were used solely for irrigation purposes, and

therefore they were exempt from the permit procedure

under Section 1344(f)(1)(c), which exempts discharges

related to the “construction or maintenance of irrigation

ditches.” The Huebners also argued that the water level in

the ditches had been raised, indicating that the

groundwater level surrounding the ditch was higher than

it had been prior to the 1978 decree. The Huebners argued

that the evidence of a higher groundwater level showed a

compliance with the purposes of the 1978 order.

The district court rejected the Huebners’ focus on

ditch water level and looked instead to the results of

Huebners’ dredging activity as it affected the surround-

ing wetlands. We think this interpretation of the pur-

poses of the 1978 consent order was proper. We think the

government succintly stated the fallacy of the Huebners’

argument at oral argument when counsel stated that “the

Clean Water Act is not a Full Ditch Act:” the water level

of the ditches is not the key to compliance with the

purposes of the 1978 order.

The district court correctly reasoned that even if the

ditches at issue were irrigation ditches, the restrictions of

Section 1344(f)(2) still applied. Under Section

re

A-l4

1344(f)(2), the discharge of dredged materials from the

construction of irrigation ditches requires a permit where

such discharges “bring an area of navigable waters into a

use to which it was not previously subject and where the

flow of the waters is impaired and their reach reduced.”

The district court reasoned that the sidecasting and

spreading activity reduced the reach of the wetlands

surrounding the ditches at issue. The court therefore

concluded that the defendants had violated the 1978 order

by not giving notice of such activity and by not obtaining

a permit. We affirm the court's conclusion that the

Huebners’ ditching activity, whether it involved irriga-

tion or drainage ditches, ran afoul of the provisions of

Section 1344(f)(2). The Huebners’ activity constitued a

discharge of dredged material onto a wetland, thereby

disturbing the reach of its waters. Such activity required

notice and application for a permit under the 1978 consent

decree.

C. Maintenance of Farm Roads

The district court found that at sites 1, 5, and 6 the

Huebners bulldozed excess road fill into adjacent wetlands

and maintained the roads at a greater width than neces-

sary. The Huebners argued that discharges made in

connection with the maintenance of farm roads are

exempt from permit requirements under Section

1344(f)(1)(E). The court concluded, however, that

the Huebners’ bulldozing activities violated Section

1344(f)(1)(E)’s requirement that the “best management

practices” be used in the maintenance of farm roads, and

reasoned therefore that the Huebners should have given

notice and obtained a permit if necessary before widening

the roads. We find nothing clearly erroneous in the court's

conclusion and affirm the lower court’s ruling that Section

1344(f)(1)(E) exemptions for discharges made in the

construction and maintenance of farm roads does not

ee ee |

A-15

apply to the Huebners’ activities. The Huebners’ failure to

give notice and apply for a permit for these activities was

a violation of the 1978 order.

?

D. Expansion of Cranberry Beds

The court below held that the Huebners’ expansion of

the Staege cranberry beds at site 9 without a permit

violated both paragraphs 1 and 2 of the consent order

because it found that the conversion of the adjacent

wetlands into cranberry beds was a “use” of the wetlands

to which they had not been previously subject, therefore

requiring a permit under Section 1344(f)(2). 33 C.F.R.

§ 323.4(a)(1)(ii) provides:

{a}]n operation ceases to be established when the

area on which it is conducted has been converted to

another use or has lain idle so long that modifications

to the hydrological regime are necessary to resume

operations.

Relying on this definition, the district court found that

since the Huebners had had to drain the surrounding area

in order to expand the bed, this conversion brought it

within the terms of the regulation. We affirm the court's

ruling.

E. Seraping Activity

Finally, the district court found that the defendants

used a bulldozer to move large mounds of dirt and level a

10 to 12 acre area at site 13 in violation of paragraphs 1

and 2, which prohibit discharges without a permit. The

court reasoned that the scraping of materials from a

wetland constitutes a discharge, because wetlands are

defined by the presence of aquatic vegetation. See 33

C.F.R. § 323.2(a)(7)(c) (1983). Moreover, the regulations

also provide that Section 1344(f)(1)’s exemption for

plowing “does not include the redistribution of soil, rock,

sand, or other surficial materials in a manner which

changes any of area of the waters of the United States to

A-16

dry land. For example, the redistribution of surface

materials by blading, grading, or other means to fill in

wetland areas is not plowing.” 33 C.F.R. § 323.4(D)

(1983). See also Avoyelles Sportmen’s League v. Alexander,

473 F. Supp. 525, 533 (W.D.La 1979), 715 F.2d 897 (5th Cir.

1983). We find nothing erroneous in the court’s con-

clusion, and affirm the court’s ruling that the Huebners

violated the 1978 order by not giving notice and applying

for a permit for this scraping activity.

IV. DUE PROCESS

The Huebners argue on appeal that they were denied

due process by the district court in that the court excluded

evidence on the prior interpretation of Section 1344’s

agricultural exemption, on the meaning of the phrase

“maximum drainage control” used in paragraph 7 of the

1978 order, on their estoppel and selective enforcement

claims, and on assorted other matters. Because we find

little merit in the Huebners’ due process arguments, we

treat these matters summarily here.

A potential contemnor in ¢ civil contempt proceeding

must be afforded a ‘meaningful opportunity to present a

defense.” Commodity Futures Trading Comm'n v. Premezx,

Inc., 655 F.2d 779, 782 n.2 (7th Cir. 1981). In this case the

Huebners received that opportunity when the district

court afforded them six full days of a trial-type hearing on

the contempt charge, at which the Huebners were repre-

sented by counsel, presented testimony and documentary

evidence totaling over a hundred pages, and cross-

examined the government’s witnesses. Moreover, the

record indicates that the Huebners were permitted to

introduce documents involving “official Corps policy as

opposed to an interpretation merely by individual Corps

officials,” R. 108, at the remedy stage of the proceedings

and that they, through their prior attorney, had agreed to

these procedural ground rules prior to the hearing.

A-17

The court below also properly excluded evidence on the

“intent and purpose” of the phrase ‘maximum drainage

control.” The scope of a consent decree must be inter-

preted within its four corners and not with reference to

the specific “purposes” of the parties involved. Com-

modities Futures, 655 F.2u at 782. In the absence of

genuine ambiguity of meaning, no evidence beyond the

plain meaning of the terms themselves was required. We

find nothing clearly erroneous in the district court’s inter-

pretation of “maximum drainage control” as meaning

that the Huebners guaranteed the protection of the in-

tegrity of wetlands by agreeing not to drain off the water.

Cf. United States v. Greyhound Corporation, 509 F.2d 529

(7th Cir. 1974) (“restore practices and traffic patterns”

held not ambiguous). The district court therefore proper-

ly rejected the Huebners’ contention that the phrase

referred only to the seasonal moderation of the flow of

water from the reservoirs by the raising and lowering of

the dikes.

The Huebners’ estoppel claim is supported neither by.

the facts, which indicate that they were permitted to

present evidence on the estoppel claim at the hearings on

the restoration plan, nor by their legal argument. The

Supreme Court recently stated that “the Government may

not be estopped on the same terms as any other litigant,”

reasoning that “those who deal with the Government are

expected to know the law and may not rely on the conduct

of government agents contrary to law.” Heckler v. Com-

munity Health Services of Crawford County, 104 S. Ct. 2218,

2224, 2226 (1984). See also Schweiker v. Hansen, 450 U.S.

785 (1981). In Heckler the court held that before estoppel

will apply against the government in its effort to enforce

the law, the alleged estopping statements must be in

writing and must be made by officials at a policy-making

level. Heckler, 104 S. Ct. at 2227. See also City of

Alexandria v. United States, 737 F.2d 1022, 1028 (Fed. Cir.

1984).

The court below found that while there had been

extensive correspondence between the defendants and the

A-18

Corps, none of this correspondence contained misleading

representations as to the permissibility of the Huebners’

conduct which was found in violation of the consent

decree. Furthermore, the court credited the affidavit of

Corps personnel and found that although some oral state-

ments may have been made indicating that certain activi-

ty did not require a permit, the Huebners continued to

plow even after being subsequently informed that such

plowing did require a permit. The record in this case

clearly does not establish a case of estoppel against the

government under the principles of Heckler and

Schweiker.’ We find nothing erroneous in the court’s

rejection of the Huebners’ estoppel claim. See also Deltona

Corp. v. Alexander, 682 F.2d 888 (11th Cir. 1982).

V. RESTORATION PLAN

A lower court’s remedy for civil contempt is review-

able only under the limited “abuse of discretion” standard.

Sportmark, Inc. v. Wolverine World Wide, Inc., 601 F.2d

313 (7th Cir. 1979). The court below exercised its dis-

cretion in ordering particular restoration activities to be

performed by the Huebners after considering whether the

plan: (1) is achievable as a practical matter; (2) confers

maximum environmental benefits; and (3) bears an equi-

table relationship to the degree and kind of wrong. R.

137, Order at 1. See United States v. Sexton Cove Estates,

Inc., 526 F.2d 1293, 1301 (5th Cir. 1976). Upon review we

find one portion of the district court’s order to have been

an abuse of discretion. The majority of the court’s order,

however, was within the court’s discretion.

"While the record is clear that estoppel does not apply in this

case, we take this opportunity to caution Corps personnel to be

clear in their dealings with citizens pursuant to carrying out

their duties under the Clean Water Act. The private owners of

wetlands are rarely lawyers, and Corps personnel should there-

fore assist these citizens in complying with the law by being

simple, direct and uncontradictory in their communications.

| a

A-19

The district court’s remedial order requiring the

Huebners to maintain certain water levels and to conduct

other restoration activities withstands our review under

the abuse of discretion standard. The record presents

sufficient evidence to support the practicability of the

maintenance of specified water levels at the reservoirs and

other locations. The district court relied heavily on assess-

ments of the credibility of the experts who testified as to

the practicability of the water level aspect of the plan,

noting that the achievability of such levels was “not a

matter of common sense.” R. 137 at 4. We must accord

great weight to lower courts’ factual determinations when

they depend on the assessment of a witness’ credibility, cf.

NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th Cir. 1983),

and thus we affirm that portion of the district court’s

order.

The Huebners complain bitterly about the ordered

destruction of their permitless ten-acre expansion of the

Staege cranberry beds, alleging that the beds are worth

$400,000 and that their destruction is neither “cost-

effective nor environmentally warranted.” We agree with

the Huebners and find the district court’s order to destroy

the ten acre bed to have been an abuse of discretion. The

district court found that the Huebners’ cranberry bed

expansion “would not achieve maximum environmental

benefits for the land at issue,” and that, given the nature

of the Huebners’ repeated violations, the destruction of

this bed bore an equitable relationship to the harm to the

land caused by the Huebners.

Expert testimony in the record indicates however,

that cranberry beds are compatible with wetlands,

although they do not perform the same water filtration

and storage functions as an undisturbed wetland. The

district court also noted that the Huebners might have

been able to expand the Staege bed had they applied for

an expansion permit in the first instance. R. 187 at 8.

Moreover, evidence in the record reveals that some repre-

sentatives of the Corps were cognizant of the Huebners’

A-20

expansion of the cranberry beds. While this Corps conduct

was insufficient to meet the exacting requirements neces-

sary for the government to be estopped from seeking a

contempt citation against the Huebners, it should have

been a factor to be given considerable weight by the trial

court in fashioning a restoration order. Given this evi-

dence, we think that it was an abuse of discretion for the

district court to find that the destruction of the cranberry

expansion bed bore an equitable relationship to the degree

and kind of wrong committed by the Huebners. The

Huebners did not follow the rules of the consent decree,

admittedly, but it is a draconian exercise of judicial

discretion to order undone a ten-acre expansion of cran-

berry beds which it took the Huebners several years to

develop and which beds are not inherently incompatible

with the surrounding wetlands. Therefore, we reverse the

district court’s remedial order and remand with instruc-

tions to strike that portion of the order decreeing the

destruction of the ten-acre cranberry bed.

A-21

V. CONCLUSION

It must be emphasized that any perceived severity in

the findings and the remedy of the district court which we

affirm in part and reverse in part here were brought on

the Huebners by their own failure to comply to the terms

of the 1978 consent order into which they had voluntarily

entered. While the Huebners and amicus, the Wisconsin

Cranberry Growers Association, voice concern over the

ability of cranberry farming to continue in Wisconsin

should we affirm the district court’s orders, we decline to

be persuaded by these highly speculative prophecies of

doom. The Huebners may continue to farm their land.

The district court recognized in ordering the restoration

plan that the Huebners may still plant corn on parts of

their property. R. 137 at 3. The Huebners may continue to

farm cranberries or other crops, as long as they comply

with the terms of the 1978 order which requires notice and

application for permits. Other cranberry farmers or

owners of wetlands property are also not prohibited from

making a productive use of their property; proper com-

pliance with the permit process is all that is required

under the Clean Water Act to ensure that the use of the

nation’s wetlands proceeds with care. In conclusion then,

the district court’s finding of contempt is affirmed and its

remedial restoration order is reversed and remanded with

instructions to the district court to strike that portion of

the order ordering the destruction of the ten-acre cran-

berry bed.

AFFIRMED IN PART,

REVERSED AND REMANDED IN PART.

A-22

A true Co

Tes

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 50234—Pandick Midwest, Inc., Chicago—1-11-85—450

Appendix B B-1

Opinion by Judge Bauer

JUDGMENT — ORAL ARGUMENT

United States Court of Appeals

For the Sebenth Circuit

Chicago, Illinois 60604

January 11, 1985.

Before

Fon. WILLIAMJ. BAUER, Circuit Judge

Hon. WILBUR F. PELL, Senior Circuit Judge

Hon. FRANKLIN T. DUPREE, JR., Senior District Judge*

UNITED STATES OF AMERICA,

Plaintiff-Appellee, Appeal from the United States

y. District Court for the

Western District of Wisconsin

No. 83-3140 No. 77 C 407

ROLAND G. HUEBNER,

WILLIAM HUEBNER, and Judge Barbara B. Crabb

PETENWELL POTATO FARMS,

Defendants-Appellants.

This cause was heard on the record from the United States

District Court for the Western District of Wisconsin, Division,

and was argued by counsel.

On consideration whereof, IT IS ORDERED AND ADJUDGED

by this Court that the judgment of the said District Court in the

cause appealed from be, and the same is hereby, AFFIRMED IN

PART, REVERSED AND REMANDED IN PART, in accordance with

the opinion of this Court filed this date. Each party is to bear its

own costs on appeal.

* Hon. Franklin T. Dupree, Jr. , Senior District Judge for the Eastern

District of North Carolina, sitting by designation.

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Appendix C C-1

In the

United States District Court

For the Western Histrict of Wisconsin

UNITED STATES OF AMERICA,

Plaintiff,

w.

ROLAND G. HUEBNER, WILLIAM HUEBNER, and PETENWELL

POTATO FARMS,

Defendants.

Opinion and Order

j y GR3

Filed Aug. 4, 198 No. 77-C-407-C

This civil action is before the court on plaintiff's motion to

find the defendants in contempt of the consent order entered in

this case on June 5, 1978. .

In conformance with the procedure established by the Hon-

orable James E. Doyle, to whom the case was then assigned,

plaintiff filed proposed findings of fact which Judge Doyle

adopted as Preliminary Findings of Fact, and which constituted

plaintiffs prima facie case. From April 18 to April 20, 1983,

defendants presented evidence in defense of the contempt pro-

ceeding and from May 11 to May 13, 1983, plaintiff presented

rebuttal evidence and defendants presented surrebuttal evidence.

From the evidence of record, I now make the following

findings of fact.

FACTS

Defendants Roland G. Huebner and William Huebner are

residents of Nekoosa, Wisconsin. Defendant Petenwell Potato

Farms, Ine. is a partnership of defendants Roland G. Huebner

and William Huebner. Defendants own, operate, lease or other-

wise control approximately 7,600 acres of land in Jackson County,

Wisconsin, in Sections 22, 23, 26, 27, 34, 35, and 36 in Town-

C-2

ship 21 North, Range 1 East, and Sections 1, 2, 3, 4, 9, 10,

11, 15, 14, 23, and 24 in Township 20 North, Range 1 East. This

farm site is located in an area known as Glacial Lake Wisconsin.

This area has the largest continuous wetlands in Wisconsin.

Generally, the area is comprised of large expanses of sedge

meadows with some shrub swamps, bogs and occasional uplands.

In its pre-project state, the wetlands areas of defendants’ farm

served several valuable functions normally associated with wet-

lands. The farm served as habitat for sandhill cranes, sharptailed

grouse, marsh hawks, rough-legged hawks, shorteared owls,

white-tail deer, and other wildlife species. The wetlands acted to

trap sediments and nutrients, and to stabilize flows in Beaver

Creek. During periods of high water, the wetlands slowed the

flows. In periods of low precipitation, the stream flows were

augmented. The wetlands also moderated stream temperatures

and, because of the vegetative cover, reduced both wind and

water soil erosion.

Plaintiff originally filed this action on November 17, 1977,

seeking an injunction against certain activities defendants were

pursuing on their land. The complaint alleged that defendants

were depositing dredged and fill materials into wetlands on their

property without first obtaining a permit from the Army Corps

of Engineers in violation of the Federal Water Pollution Control

Act (now the Clean Water Act), 33 U.S.C. §§ 1811, P42, 1344.

Following negotiations, this action was settled by a consent

agreement entered into by the United States Attorney for this

district and by counsel for the defendants. This agreement was

embodied in the “Stipulated and Consented to Order” entered

by Judge Doyle on June 5, 1978.

In paragraph 1 of the consent order, the court permanently

enjoined the defendants from activities constituting the dis-

charge of dredged or fill material into wetlands within Sections 1,

2, 3, 4, 9, 10, and 11 of Township 20 North, Range 1 East and in

Sections 23, 26, 27, 34, 35, and 36 in Township 21 North, Range 1

East, “except as in accordance with a Department of Army

permit and other lawful authority.” Under paragraph 2 of the

order, defendants were required to notify the Corps in writing

20 days prior to the discharge of dredged or fill material on any of

the lands described. Also, defendants were required to under-

C-3

take a program of specified restoration work to be completed by

August 1, 1978, and to maintain certain structures and condi-

tions on their lands. Finally, defendants had to pay a civil penalty

of $1,000.00. At all times pertinent to this proceeding, defen-

dants had notice of the consent order and its provisions.

On November 6, 1979, Henrik Strandskov of the St. Paul

District Corps of Engineers and Dick Knitter and Joan Koppa of

the Wisconsin Department of Natural Resources, visited the

defendants’ Jackson County, Wisconsin farm site with defen-

dants Roland and William Huebner and reviewed it for compli-

ance with the June 5, 1978 order. Strandskov observed that the

water levels in the defendants’ project area were as high as or

higher than those that had been observed in the prior two years.

The Hunters Peak and Juleane Reservoirs were being main-

tained as wetlands and contained significant amounts of open

water. In the main north-south ditch running along Bear Bluff

Road where it intersects Stegge Place, the water level was high,

but there was not much flow. The water level was controlled by

a downstream structure.

Also on November 6, 1979, a control structure had been

built across the north-south ditch at the southwes< corner of

Hunters Peak Reservoir, which connects with Beaver Creek to

the south. The control structure was sound and functioning as

intended. It contained control boards and was diverting water so

that it flowed into the southwest corner of Hunters Peak Reser-

voir. The downstream side of the control structure embankment

was stabilized with vegetation. The cuts in the dike on the

eastern side of the reservoir were filled and intact.

As of November 6, 1979, a dike along the northeast edge of

Juleane Reservoir had been restored at the intersection of Bear

Bluff Road and Bear Bluff Road South. From this site, open

water could be seen in Juleane Reservoir. A previously washed

out ditch had been restored in the Unnamed Reservoir north of

Juleane Reservoir. Water was flowing out of a control structure

on the southwest corner of the restored site and the installed

bulkhead was functioning properly. The reservoir contained high

water levels consistent with historic water levels.

On November 16, 1979, the St. Paul District Office advised

C4

defendant Roland Huebner that defendants had achieved compli-

ance with this court’s June 5, 1978 order. Since that time, defen-

dants have undertaken a number of projects on their Jackson

County farm, several of which are subjects of this contempt

proceeding. For ease of description, these activities will be iden-

tified by the site at which they were performed, as shown on the

map below.

ee

7unecau co.

Site 1 - Beaver Creek

On or before July 23, 1981, defendants permitted a neigh-

boring farmer, Lloyd Wolfe, to clean out the portion of Beaver

Creek running through defendants’ property. Some of this creek

had been cleaned four years earlier by defendants. In cleaning

out the creek, Wolfe deepened and widened it beyond its earlier

dimensions. Wolfe’s purpose was to ensure that water could flow

freely from defendants’ property onto Wolfe's land to provide a

water supply for Wolfe’s cranberry marsh.

The deepening of the creek benefited defendants’ own cran-

berry operation and made it possible for defendants to extend a

ditch northward from Beaver Creek along the western boundary

of their property.

Wolfe used a backhoe to take out material along the bottom

of the creek and to sidecast it on the existing spoil banks. As a

result of the work, material was sidecast onto wetlands adjacent

to Beaver Creek from the point where the creek runs west froma

line separating sections 10 and 11, Township 20 North, Range 1

East to the Center of Section 10, Township 20 North, Range 1

East. In the center of Section 10, the north spoil bank was

widened by the deposit of material excavated from Beaver Creek

into wetlands.

Defendants use the resulting spoil banks along Beaver Creek

as roads, although the banks are many feet wider than what

would be necessary to permit a vehicle to travel along them.

Defendants have made no effort to construct or maintain the

roads in a manner that would reduce their effect upon the adja-

cent wetlands or even to keep them from collapsing into the

ditches. As of July 23, 1981, the previously excavated north and

south banks of Beaver Creek showed erosion. In some areas in

Section 10, the spoil banks had been bulldozed to keep them from

becoming too high and the excess material was spread into the

adjacent wetlands for a distance of 50 to 75 feet.

Depositing excavated material along the banks of the creek

is more convenient and less expensive than hauling it away.

C-6

Site 2- The North-South Ditch along the West Side of Bear Bluff

Road Adjacent to the Hunters Peak and Juleane Reservoirs on

the Section Line Between Sections 2 and 3.

On or before July 23, 1981, defendants used a backhoe to

clean and deepen the existing ditch at this location. The material

dug out by the backhoe was sidecast into a wetland along the

banks of the ditch.

This ditch is part of the 6 to 7 miles of ditching in the

reservoir area which has been operated to drain the soil in the

reservoir area so as to permit the growing of dry land crops, such

as corn. This ditch was constructed by defendants prior to the

entry of the consent order on June 5, 1978. The ditching in the

reservoir area has lowered the water table in the area from two

to four feet.'

' Although defendants have argued strenuously that all of the ditches

at issue in this proceeding are irrigation ditches, I find their argument

unpersuasive, except, possibly, as it relates to the Beaver Creek ditch,

see discussion of site 1, text, supra.

In finding that the ditches in the reservoir area (sites 2, 6, and 14)

anc the northern extension of Beaver Creek operate primarily as

drainage ditches, I have relied on the following evidence:

(1) Defendant William Huebner’s admission in 1981 that the

reservoir ditching had lowered the water table in the reservoirs

two to four feet;

(2) Defendant Roland Huebner’s testimony at the hearing

that defendants’ long-range plan was to plant corn in the reser-

voirs. (Corn requires drier land than what existed in the reser-

voirs after restoration but prior to defendants’ ditching work);

(3) Defendants’ plowing of the reservoir areas, in preparation

for the growing of crops, anaction consistent with the conversion of

the area to dryland farming; (See discussion of Sites 10, 11, and 12,

text, infra.)

(4) The testimony of Richard Knitter, Assistant Chief of the

Water Regulations Section of the Wisconsin Department of Natu-

ral Resources. (Knitter testified that he had been on defendants’

(Footnote continued on following page)

C-7

continued

property thirty or more times and had run elevations and done

water flow studies. It was Knitter’s professional opinion that the

ditches in the reservoir area are all drainage ditches, with the

exception of the east-west ditch at the southern edge of Hunters

Peak Reservoir, north of the Stegge cranberry beds, which is a

large, very deep ditch in contrast to the others which “weren't

deep enough with the volume of water that was in them.” (Tran-

script, p. 278));

(5) The testimony of Al Kean, hydrologic engineer specialist,

Corps of Engineers. (Kean testified that he had visited defen-

dants’ property three times; that he observed the ditches in the

reservoir area in August, 1982, and that it was his opinion that the

deepening and widening north-south ditches on the eastern and

western boundaries of Hunter’s Peak Reservoir enhanced the

drainage potential in the area, by disturbing the vegetation on the

banks of the ditches, by lowering the water levels in the ditch and

with them, the surrounding ground water levels, and by increas-

ing the flow capacity of the ditch and concomitantly decreasing the

time for surface waters to flow out of a given drainage area.

(Transcript, pp. 634-37) Kean testified that the ditches could also

act as water storage areas with the installation of flow control

structures within the ditches, without changing their basic charac-

ter as drainage ditches. (Transcript, pp. 640-41));

(6) The testimony of defendants’ expert, Robert Karnouskas.

(This testimony did not controvert Kean’s and Knitter’s testi-

mony about the purpose of the ditches in the reservoir area. Kar-

nouskas visited defendants’ property only once, in April, 1983, at

a time when the ground water levels “were probably very close to

their highest seasonal levels.” (Transcript, p. 337). Karnouskas

testified that at the time of his visit, the surface levels of the

reservoir area ditches “were being maintained at about the maxi-

mum practical level that one could maintain those ditches at.”

(Transcript, p. 338) He went on to say,

Certainly the effect of cleaning the ditches and deepening

them if all the stop logs were removed out of those dams,

deepening and cleaning those ditches would certainly enhance

those ditches’ ability to lower the water table. But the way

(Footnote continued on following page)

C-8

The spoil banks of the ditches are wider than what would be

necessary to accommodate defendants’ farm vehicles. The banks

erode into the ditches, requiring them to be redredged for clean-

ing every three to five years.

Site 3- A New North-South Ditch Extending Northward from

Beaver Creek on the Section Line Between Sections 9 and 10,

Along the Western Boundary of Defendants’ Property.

On or before July 23, 1981, defendants used a dragline to

excavate a new ditch approximately 400 feet long at this location.

The excavated materials were sidecast onto wetlands alongside

the ditch. In order to avoid a hill in the middle of the spoil bank

which would prevent its being used as a road, defendants spread

the spoil material into several adjacent acres.

Although on July 23, 1981, defendant William Huebner

indicated that defendants would continue digging the ditch north

approximately 1'% miles to Bear Bluff, defendants have never

done so.

Site 4 - Lloyd Wolfe’s Property

None of the activity at this site is a part of this proceeding.

Site 5 - East-West Ditch Along the Southern Border of Section

36, Township 21 North, Range 1 East.

On or before August 13, 1982, but after June 16, 1981,

continued

that those ditches are being operated, maintaining the sur-

face water levels at the highest levels, just the mere act of

deepening the ditches would have no effect on groundwater

levels.

(Transcript, p. 339) This testimony is consistent with Kean’s and

Knitter’s observations that with the installation of stop logs and

bulkheads the ditches could be operated for irrigation purposes. )

C-9

defendants excavated a new ditch in order to construct a 900 foot

long road at this location.” In constructing the road, defendants

took material out of the ditch, placed it on what was then the

bank of the ditch and leveled off the resulting spoil bank into

wetlands adjacent to Hay Creek so that logging trucks could use

the land as an exit road from defendants’ property to the county

line road.

There are no culverts in the newly-constructed road, even at

the end of the new road where it meets Cranberry Road at the

Jackson-Juneau County line and intersects an existing ditch.

There is no bracing or any other attempt at stabilizing the fill to

prevent erosion. The road construction has disturbed the vegeta-

tion in the area of the road and the ditch.

Site 6 - North-South Ditch Along West Side of Hunters Peak

Reservoir in Section 3, From a Point South of the Bulkhead at

the Southwest Corner of Hunters Peak Reservoir.

On or before August 13, 1982, but after June 2, 1982,

defendants excavated and deepened the ditch at this location and

sidecast the excavated material upon an existing spoil bank.

Defendants then spread or leveled the top two to three feet of

material onto several acres of adjacent wetlands so as to flatten

the spoil bank for use as a road.

There are two culverts in the spoil bank road.

As noted in connection with the north-south ditch on the

* Although William Huebner testified that there was an existing

ditch at this location, I do not find his testimony believable. Plaintiff's

Exhibit 10, and aerial photograph taken on October 4, 1977, shows no

ditch in this location. Defendants’ Exhibit 11, on which defendant

William Huebner marked in green all ditches existing as of September,

1977, does not show a ditch running all the way east to Cranberry

Road. Finally, defendants’ Exhibit 28EE reveals that the new ditch is

located to the south of the new road, whereas the ditch to the west

(which ends approximately where the new ditch begins) is located on

the north side of the new road and is not connected to the new ditch. It is

irrational to think that any previously-existing ditch would have been

built with a non-connecting jog.

C-10

east side of this reservoir, this ditch is part of a network of ditches

surrounding the reservoir areas which defendants have used to

drain the wetland within the reservoirs for conversion to dry

land farming, although the ditches can be used also for irrigation

purposes.

Site 7 - Hay Creek, at a Point Where the Creek Crosses the

Section Line Between Sections 36 and 1.

On or before August 13, 1982, defendants placed a new

bulkhead and earthen fill structure into Hay Creek at this loca-

tion to replace a dam that had washed out on July 1, 1982.

Defendants installed a tube with a bulkhead in front of the bed

dam on an emergency basis.

Site 8 - Beaver Creek, at the Point Where the Creek Crosses the

Section Line Between Sections 9 and 10.

On or before August 13, 1982, but after June 16, 1982,

defendants installed a bulkhead into Beaver Creek at this location.

Site 9 - Westward Expansion of Cranberry Beds into South

one-half of Southeast Quarter of Section 3.

On or before April 9, 1981, defendants expanded the exis-

ting cranberry beds in this location approximately 450 feet west-

ward to a north-south ditch running along the western edge of

Hunters Peak Reservoir, for a total area of about 10 acres. In

constructing the new cranberry beds, the defendants used exca-

vated material for dikes. The expansion area is part of a wetland

adjacent to Beaver Creek.

When defendants began the expansion work the site was

two feet higher than the existing beds. The area was not culti-

vated, but had vegetation in the form of willow shrubs, poplar

trees, and grasses.

C-11

Sites 10 (Hunters Peak Reservoir), 11 (Juleane Reservoir), and

12 (Unnamed Reservoir).

As part of the June 5, 1978 consent order, defendants agreed

to replace the embankment at the southwest corner, and fill all

cuts in the embankment along the east side of the reservoir.

At some time prior to July 23, 1981, defendants plowed an

area in Hunters Peak Reservoir, using a marsh plow and remov-

ing wetland vegetation and disturbing the soil. Sometime after

July 23, 1981, but before August 13, 1982, defendants plowed the

remaining wetland in Hunters Peak Reservoir. At some time

between August 13, 1982 and December 9, 1982, defendants

plowed and leveled the dikes in Hunters Peak Reservoir.

As part of the June 5, 1978 consent order, defendants agreed

to replace the embankment along the east side of Juleane Reser-

voir, replace the embankment at the southwest corner of the

reservoir, and leave open the culvert beneath Bear Bluff Road

where it intersects with Bear Bluff Road South.

On or before September 13, 1982, defendants plowed an

area of Juleane Reservoir with a marsh plow, uprooting wetland

vegetation and overturning the peat soils in the reservoirs. Some-

time after September 13, 1982, but before December 9, 1982,

defendants plowed the remainder of the wetland area in Juleane

Reservoir. The plowing included the leveling of the dike along

the southern edge of Juleane Reservoir.

As part of the consent order of June 5, 1978, defendants

agreed to leave open the culvert at the point where Bear Bluff

Road intersects with the dike in the Unnamed Reservoir, replace

the embankment along the east side of the reservoir, and reopen

the ditch on the west side of the embankment located in the

northwest one-quarter of Section 35, Township 21 North, Range

i East.

Sometime prior to September 13, 1982, defendants plowed

in the Unnamed Reservoir. Prior to December 9, 1982, defen-

dants completed the remainder of the plowing in the wetland in

C-12

the southeast quarter of Section 34, and the southwest quarter of

Section 35. During the period between August 13, 1982 and

December 9, 1982, defendants plowed and leveled the dikes in

the Unnamed Reservoir.

Defendants also agreed as part of the June 5, 1978 consent

order to restore all of the specified embankments to the dimen-

sions which existed prior to the commencement by defendants of

the discharge operations of dredged or fill materials alleged in

the complaint and maintain and operate the restored control

structures and reservoirs “in a safe manner, for maximum drain-

age control, and to protect the integrity of the dikes and the

structures therein.”

Prior to the discharge operations that led to the bringing of

the original action in 1977, each of the reservoir areas was a

wetlands and held significant amounts of open water during por-

tions of each year, although not permanently. After the comple-

tion of the restoration work in 1979, there was again significant

open water in the reservoirs.

The widening and deepening of the ditches bordering the

reservoirs drained water from these areas and lowered the ground

water from two to four feet, enabling defendants to plant crops

in the reservoir.

The reservoirs contain Dawson Peat and Newson Sand soils.

These soils will not support the growth of corn or other dry land

crops unless they are drained. Plowing of these soils in the reser-

voir area decreased their capacity to store water because it mixed

the sandy subsoil with the less permeable organic top soil, mak-

ing the resulting top soil more permeable.

Site 13 - Northeast Quarter of Section 10, Township 20 North,

Range 1 East.

On or before December 9, 1982, defendants used a bulldozer

to scrape and redistribute surface materials in a wetlands area at

this location.

4 ered

C-13

Although defendants stated that they were doing nothing

more than spreading out the ashes from burned piles of trees in

this area, they used a bulldozer to move large mounds of dirt and

to level the entire ten to twelve acre area.

Site 14 - Ditches running West From a Worn Bridge Located in

the Middle of Section 35, Township 21 North, Range 1 East, and

South From This Location Along the West Side of Bear Bluff

Road.

On or before June 12, 1980, defendants deepened the ditches

at this location and sidecast the excavated material along the

ditches. Some of the material fell upon existing material banks

and some fell upon wetland adjacent to the ditch and Beaver

Creek.

This ditching activity was part of a network of ditching that

had the purpose and effect of draining the three reservoirs,

Unnamed, Juleane, and Hunters Peak, to permit the cultivation

of crops in the reservoir areas.

Site 15 - Old &s.yye Cranberry Beds in South Half of Southeast

Quarter of Section 3.

On or before June 12, 1980, defendants made alterations ina

current cranberry bed at this location. As of June 12, 1980, defen-

dants had leveled one dike into the wetland and had undertaken

a surface scraping operation in which the vegetation in the cran-

berry beds was removed and deposited on the remaining dikes

enlarging them.

At no time since the entry of the consent order on June 5,

1978, did defendants ever send the St. Paul District Corps

of Engineers, General Regulatory Branch written notification,

twenty days in advance, of the commencement of any activity

involving the discharge of dredged or fill material on any por-

tions of the land described in the consent order. At no time did

defendants ever have a Corps of Engineers permit for the work

that they did on the Jackson County farm.

C-14

Although it is implicit in these findings that plaintiff has

established that the areas it characterized as wetlands are wet-

lands in fact, I will make it explicit that I find as fact that these

areas are wetlands as that term is defined in the Federal Water

Pollution Control Act and carried over into the Clean Water Act.

OPINION

In this action for civil contempt pursuant to 18 U.S.C. § 401,

I consider that it is plaintiffs burden to prove, by clear and

convincing evidence, that defendants undertook activities consti-

tuting the discharge of dredge or fill materials into wetland areas

on their Bear Bluff Farm without a permit; that they failed to

provide the Corps with prior written notice of the discharge of

dredged or fil! material on any portions of their land described in

the consent order; and that thev failed to maintain the restora-

tion work and to operate it for maximum drainage control in the

Hunters Peak, Juleane, and Unnamed Reservoirs, all in viola-

tion of the consent order. With regard to the permit and notice

requirements of paragraphs 1 and 2 of the consent order, it is

part of plaintiffs burden of proof to establish that defendants’

activities fell within the statutory and regulatory meaning of the

phrase “discharge of dredge or fill materials.” Therefore, plain-

tiff must prove that the alleged discharge did not fall within the

exceptions set out in the Federal Water Pollution Control Act, 33

U.S.C. § 1344(f)(1), and 47 Fed. Reg. No. 141, p. 31812-13 July

22, 1982) (to be codified at 33 C.F.R. § 323.4), and incorporated

implicitly into the consent order.”

Inan order entered April 11, 1983, I held that the phrase “discharge

of dredged or fill material” as used in the consent order incorporated

the statutory and regulatory exclusions narrowing the legal meaning of

the phrase:

Defendants are correct in pointing out that, prior to entry of the

consent order in this case, the terms “dredged material” and “fill

material” were defined in the regulations implementing the FWPCA

toexclude the results of certain “normal” farming activities. See 40

(Footnote continued on following page)

C-15

In defending against the civil contempt action, defendants

have placed emphasis upon these exceptions to the discharge

activities otherwise prohibited under the Federal Water Pollu-

tion Control Act (now the Clean Water Act). Under 33 U.S.C.

§ 1344(f), certain discharges of dredged or fill material do not

require a permit from the Corps of Engineers. These include

discharges

EP a 2%

(A) from normal farming, silviculture, and ranching ac-

tivities such as plowing, seeding, cultivating, minor drain-

age, harvesting for the production of food, fiber, and forest

products, or upland soil and water conservation practices;

(B) for the purpose of maintenance, including emer-

gency reconstruction of recently damaged parts, of cur-

rently serviceable structures such as dikes, dams, levees,

. . . and transportation structures;

(C) for the purpose of construction or maintenance of

farm or stock ponds or irrigation ditches, or the mainte-

nance of drainage ditches;

* OK

land] (E) for the purpose of construction or mainte-

nance of farm roads or forest roads, . . . where such roads

continued

Fed. Reg. No. 144, p. 31325 (July 25, 1975) (interim regulations);

40 Fed. Reg. No. 173, p. 41298 (Sept. 5, 1975) (final regulations),

revised in 42 Fed. Reg. No. 13, p. 37145 July 19, 1977). See also,

47 Fed. Reg. No. 141, p. 31811 July 22, 1982). It therefore appears,

as defendants argue, that the phrase “discharge or dredged or fill

material” was of special legal significance when used in reference

to activities potentially falling within the scope of the FWPCA.

Since the lawsuit culminating in entry of the consent order was

initiated to enforce the FWPCA, it can therefore be assumed that

both parties knew of the special legal significance attached to that

phrase when they intended that the legal meaning of that phrase

carry over into paragraph 2 of the consent order.

C-16

are constructed and maintained in accordance with best

management practices, to assure that flow and circulation

patterns and chemical and biological characteristics of the

navigable waters are not impaired, that the reach of the

navigable waters is not reduced, and that any adverse effect

on the aquatic environment will be otherwise minimized|. ]

However, the provisions of § 1344(f)(1) are subject to the follow-

ing exception:

(2) Any discharge of dredged or fill material into the naviga-

ble waters incidental to any activity having as its purpose

bringing 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, shall be required to have a permit under

this section.

33 U.S.C. § 1344(f)(2).

Defendants assert that their activities are not prohibited

discharges that would require a permit because they fall within

one or more of the provisions of § 1344(f)(1). Defendants contend

that they have not violated the restoration area requirements

because the agreed-upon embankments remain in place in the

reservoirs and the water table level has been kept up. Aiso, they

argue that they cannot be compelled to maintain the reservoirs

so that they hold standing water because such a requirement

would be impossible to accomplish.

The Clean Water Act, and the June 5, 1978 consent order

which was entered to enforce the Clean Water Act, are to be

construed in light of the purpose of the Act. As set forth in 33

U.S.C. § 1251, that purpose “is to restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.”

Although Congress made revisions in the permit requirements

in 1977, it did not back away from this basic purpose:

The committee bill includes a provision which utilizes exist-

ing legislative mechanisms, and maintains the primary thrust

of section 404 [the permit requirement] with respect to

C-17

protection of wetlands from spoil and fill discharges where

wetlands protections is an important need. At the same

time, the bill tries to free from the threat of regulation those

kinds of manmade activities which are sufficiently de min-

imis as to merit general attention at State and local level and

little or no attention at the national level.

Sen. Rep. No. 95-370 at 10-11, reprinted in [1978] U.S. Code

Cong. & Ad. News 4326, 4337 (“Sen. Rep.”). The report sets

forth the importance of wetlands on p. 10, U.S. Code Cong. &

Ad. News at 4336, and the destructive potential of unregulated

discharge into wetland areas is set forth in 40 C.F.R. 230.41(b)

(1982). See also comments of Senator Stafford quoted in Avoyelles

Sportsman's League v. Alexander, 473 F. Supp. 525, 533 n. 11

(W.D. La. 1979):

The [Section 404 permit] process is an essential tool for

preventing the unnecessary degradation of water quality by

discharges of dredged or fill material. Without it, critical

aquatic areas including swamps, marshes, and submerged

grass flats, which are such an important segment of this

Nation's water resource and are essential to the preserva-

tion of migratory and resident fish, bird and other animal

populations, might otherwise be irrevocably destroyed.

It 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.

Defendants’ activities must be analyzed in light of the purposes

of the Clean Water Act, the intended scope of the exemptions for

farming activities, and the terms of the consent order.

Site 1 - Beaver Creek

Section 1344(f)\(1(C) exempts discharges “for the purpose of

construction or maintenance of .. . irrigation ditches, or the

maintenance of drainage ditches.” If the dredging of a particular

ditch merely returns it to its original size and shape, this would

C-18

constitute exempted maintenance, making it irrelevant whether

the ditch were an irrigation or drainage ditch. However, if, as in

this instance, the work deepens and widens the ditch beyond its

original dimensions, it is construction werk and only irrigation

ditches are exempt.

Wolfe's stated purpose for enlarging the creek was to ensure

a water supply for his own cranberry operation. This, and the

proximity of the creek to defendants’ cranberry beds make it

possible that the dreged-out creek serves primarily as an irriga-

tion ditch and comes with the (f(1)(C) exception. Plaintiffhas not

proven that it is not an irrigation ditch.

It does not follow, however, that the deposit of the dredged-

out creek bed along the sides of the creek is an excepted activity.

Subsection (f(1)(C) grants an exception where the discharge is

for the purpose of construction or maintenance. Linterpret this

language as exempting only these deposits which go to make up

a dike that is an integral part of the ditch. If the resulting spoil

bank is merely incidentai to construction; that is, it is created

simply because it is easier and cheaper to dump the spoil on the

site than to haul it to an upland area for deposit, the purpose is

not constructica, but convenience. Ifthe buildup of the spoil bank

is not reasonably necessary to the purposes of irrigation, the

spoil bank is no different from any other dike in a wetlands area

and is exempt only if it qualifies under another exception.

If the discharge is onto an existing spoil bank with only

incidental droppings onto the wetlands, there is only minimal

impact on water quality and the wetlands. Such a discharge should

be exempt either under (f)(1)(C) where the spoil bank is an inte-

gral part of the ditch, or (f(1)(B) as “maintenance . . . of lal

currently serviceable structure such as a dike . . .” The Senate

Report indicates that such exempt “maintenance does not in-

clude maintenance that changes the character, scope, or size of

the original fill.” Sen. Rep. at 76; U.S. Code Cong. & Ad. News

at 4401. I construe this size limitation as relating only to the base

dimensions of a dike. If any but minimal discharge into the sur-

rounding wetlands occurs, that discharge must either qualify

under a separate exemption or be pursuant to a permit.

C-19

If the sidecasting is neither onto an existing spoil bank nor

for the purpose of constructing a structure integral to the func-

tion of a newly constructed irrigation ditch, it must be analyzed

under the farm road exception (f)(1)(E) (assuming, as I am pre-

pared to, that defendants actually use the spoil bank as a farm

road).' Unlike the exceptions for “existing spoil bank” and banks

“integral to newly constructed irrigation ditch,” the construction

of farm roads is exempted from the permit requirement only

“where such roads are constructed and maintained, in accordance

with the best management practices, to assure that flow and

circulation patterns and chemical and biological characteristics of

the navigable waters are not impaired, that the reach of the

navigable waters is not reduced, and that any adverse effect on

the aquatic environment will be otherwise minimized.” 33 U.S.C.

§ 144(NC WE).

47 Fed. Reg. 31813 (to be codified at 33 C.FLR. § 323.4(a)(6))

contains a lengthy list of what are considered to be “best man-

agement practices” in road building and maintenance, including

holding the number, width, and total length of such roads to the

minimum feasible amount consistent with the specific farming

conditions, bridging and culverting the roads to prevent the restric-

tion of expected flood flows; stabilizing and maintaining the fill

during and following construction to prevent erosion; designing,

constructing, and maintaining the road to keep vegetative dis-

turbance to a minimum; locating roads sufficiently far from streams

or other water bodies to minimize discharges of dredged or fill

material into waters of the United States; and making discharges

to construct road fill “in a manner that minimizes the encroach-

‘ Ths is giving the broadest possible reading to defendants’ asser-

tions. Although defendants have asserted a “farm road” exemption for

all of their spoil banks and dikes, defendant William Huebner testified

that not all of the spoil banks were used for travel. See transcript, p. 48

(“Most of these | spoil banks! were the means of the roads”) and p. 400,

(“I'd say nine out of ten, or the ratio might be higher than that, all the

sidecastings are or the tops are topped offand turned into farm roads’ ).

1 am prepared to assume that all of the spoil banks in question are used

as roads by defendants only because plaintiff did not prove that any of

them were not used in that way.

C-20

ment of trucks, tractors, bulldozers, or other heavy equipment

within waters of the United States (including adjacent wetlands)

that lie outside the lateral boundaries of the fill itself.”

Clearly, the build-up of the spoil bank along Beaver ‘Creek

was not necessary to the construction of the ditch or to advance

the irrigation capability of the ditch. Wolfe was simply piling up

the discharge onto the banks where it soon began to erode back

into the creek, filling it up again. The excess build-up had to be

bulldozed and spread out for a distance of 50 to 75 feet to keep the

spoil bank from becoming too high; an action that reveals that

the primary reason for the build-up was convenience and not

construction of an irrigation dike.

The discharge was not exempt under the dike maintenance

exception, because it changed the original size and was not a de

minimis discharge. In places along Beaver Creek, and specifi-

cally, in the center of Section 10, the deposit of dredged and fill

material from the creek widened the north spoil bank, thereby

changing “the size of the original fill.” The “incidental” discharge

for a distance of 50 to 75 feet beyond the original spoil bank into

the wetlands cannot be considered “de minimis.”

Finally, the discharge was not exempt under the farm road

construction exemption. The deposits made the bank too high to

be used as a road until it had been bulldozed and spread out into

the wetlands; the “road” was not stabilized in any manner to

prevent erosion during or after construction; and the resulting

road was far wider than would be minimally necessary to accom-

modate defendants’ farm vehicles.

I find and conclude that plaintiff has proven clearly and con-

vincingly that the deposit upon spoil banks of dredged and fill

material from the deepening and widening of Beaver Creek was

a prohibited discharge of dredged or fill material in wetlands

without a permit and without prior written notice to the Corps.

In allowing this to be done, defendants acted in violation of

paragraphs 1 and 2 of the consent order.

C-21

Site 2 - North-South Ditch East of Hunters Peak and Juleane

Reservoirs. on Section Line Between Sections 2 and 3.

Throughout this contempt proceeding, defendants have made

much of the distinction between drainage ditches and irrigation

ditches, contending that all of the disputed ditches are irrigation

ditches, exempt from the permit requirement. The characteriza-

tion of a ditch as an irrigation ditch does not end the inquiry into

the necessity for a permit. The general exemption for irrigation

ditches is inapplicable if the construction of the ditch involves the

discharge of dredged or fill material into wetlands and the ditch

is built for the purpose of bringing 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.” 33 U.S.C. § 1844(f)(2).

Because ilie ditches surrounding the reservoir areas were

operated to drain the reservoirs in preparation for dry land farm-

ing, the enlargement of these ditches is not an activity excepted

from the permit requirements. The ditches reduce the reach of

waters of the United States (which, of course, include wetlands,

47 Fed. Reg. 31810 (to be codified at 33 C.F.R. § 323.2(a)); United

States v. Byrd, 609 F.2d 1204 (7th Cir. 1979)). This is so, even if

the ditches are equipped and designed to be used for irrigation

purposes during some portions of the year.

To hold otherwise would be to read the Clean Water Act as

allowing farmers to construct ditches that drain whole sections of

wetlands for conversion to dry land farming if they use the same

ditches to hold water for irrigating their dry land crops during

periods of low rainfall, or as allowing farmers to construct ditches

that have the effect of draining areas of wetlands, provided only

that the ditches carry that water downstream to provide extra

water for a wetlands crop such as cranberries. Such a reading of

the Act would be inconsistent with its stated purpose of restor-

ing and maintaining “the chemical, physical, and biological integ-

rity of the Nation’s waters.”

I find and conclude that the enlargement of this north-south

ditch was a prohibited activity; that it involved the discharge of

C-22

dredged or fill material onto a wetland in connection with the

construction of a drainage ditch; and that the fact that this ditch

has operated to drain a wetlands deprives it of any claim to an

exception under 33 U.S.C. § 1344(f)(1). See also 47 Fed. Reg.

31813 (to be codified at 33 C.F.R. § 323.4(c) & n. 4). Therefore, I

conclude that in widening and deepening this ditch, without a

permit and without prior written notice to the Corps, defendants

acted in violation of paragraphs 1 and 2 of the consent order.

Site 3 - The New North-South Extension of Beaver Creek Along

the Western Boundary of Defendants’ Property.

Whether this is an irrigation ditch, as defendants contend,

or a drainage ditch as plaintiff asserts, the deposit of dredged

material onto the wetland without a permit is a prohibited activ-

ity under the Clean Water Act and a violation of this court’s

consent order.

The deposit of dredged material onto the banks of the newly-

dredged ditch exceeded whatever diking might have been neces-

sary for the construction of an irrigation ditch or for the con-

struction of a farm road, requiring defendants to use bulldozers

to spread the excess into several acres of wetlands adjacent to

the ditch. Several acres is not a de minimis discharge.

Site 5 - East-West Ditch Dredging for Construction of New Road

I find and conclude that plaintiff has established by clear and

convincing proof that the ditching for the purpose of constructing

this new road violated the terms of both paragraphs 1 and 2 of

the consent order. The ditching involved the discharge of dredged

material onto wetlands; it was done without a permit; and the

construction did not fall within the farm road exception or any

other exception to the permit requirement.

The ditch was dredged only for the construction for the new

road. It does not qualify for any exception that might be available

C-23

for an irrigation or drainage ditch and the manner of construction

of the new road was not consistent with the required best man-

agement practices. The road fill was not stabilized; no culverts

were installed; and the road is larger than what would be mini-

mally necessary for its purpose. See 47 Fed. Reg. 31813 (to be

codified at 33 C.F.R. § 323.4(a)(6).

Site 6 - North-South Ditch Along West Side of Hunters Peak

Reservoir

Like the north-south ditch on the,eastern edge of Hunters

Peak Reservoir, site 2, this ditch is part of a network of ditches

that operate to drain the wetland area of the reservoirs. Because

it is used for this purpose, the ditch does not qualify for the

irrigation ditch exception to the permit requirement. Defen-

dants’ deepening and widening of the ditch constitutes construc-

tion work requiring a permit.

Even if the ditch were considered to be an irrigation ditch,

the discharge of spoil material onto the wetlands during con-

struction would require a permit. The dumping of the material

was in excess of anything necessary for the building up of a dike

integral to any irrigation purposes of the ditch; the deposit is not

excepted as a farm road (because best management practices

were not followed); and the spreading of the spoil bank into

several acres of adjacent wetlands is not a de minimis discharge.

I find and conclude that plaintiff has established by clear and

convincing proof that defendants violated paragraphs 1 and 2 of

the consent order when they deepened and widened this ditch

and discharged spoil material onto the wetlands without a permit

and without notice.

Site 7 - Installation of Bulkhead in Hay Creek

I conclude that as to this challenged activity, plaintiffhas not

met its burden of proving that the activities are not excepted

C-24

from the permit requirement under 33 U.S.C. § 1344(f)(1)(B), as

being “for the purpose of maintenance, including emergency recon-

struction of recently damaged parts, of currently serviceable

structures such as dikes, dams. . .” (Emphasis added.)

Site 8 - Installation of Bulkhead in Beaver Creek at Section Line

The installation of the new bulkhead at this location was for

neither regular nor emergency maintenance purposes, but may

be exempt under 33 U.S.C. § 1844(f)(1)(C) as part of an irrigation

ditch. I conclude that the evidence does not establish clearly and

convincingly that the installation of this bulkhead constituted the

non-excepted discharge of dredged or fill material onto a wetland

in violation of the terms of the consent order.

Site 9 - Westward Expansion of Cranberry Beds

The expansion of the beds at this location without a permit

violated both paragraphs 1 and 2 of the consent order. The work

involved the discharge of dredged or fill material into wetlands

in the construction of the dikes between the beds and was not

exempt under the general exception for farming activities. See

47 Fed. Reg. 31812 (to be codified at 33 C.F.R. § 323.4(a)(1)(ii)):

To fall under this exemption [for normal farming activities]

the activities specified in paragraph (a)(1)(i) must be part of

an established (7.e., on-going) farming, silviculture, or ranch-

ing operation. Activities on areas lying fallow as part of a

conventional rotational cycle are part of an established oper-

ation. Activities which bring an area into farming, silvicul-

ture, or ranching use are not part of an established operation.

An operation ceases to be established when the area on

which it was conducted has been converted to another use or

has lain idle so long that modifications to the hydrological

regime are necessary to resume operations.

As a new activity in this area, the expansion of the cran-

C-25

berry beds is not exempt. Even if this area had been used for

cranberry production in the past, that use was far too long ago to

support defendants’ contention that they were merely restoring

the area to its old use, not bringing it into a new use.”

Sites 10, 11, and 12 - The Reservoirs

From the testimony adduced at trial, it appears that defen-

dants believe that the only purpose of the restoration work

required under the consent order is to enable the reservoirs to

hold standing water level on a permanent basis. If this is so,

defendants have misconstrued the order. Read in the context of

the Clean Water Act which it was intended to enforce, the con-

sent order is clear: defendants are obligated to undertake the

restoration and maintenance of the chemical, physical, and bio-

logical integrity of the reservoir wetlands in the condition in

which they existed before defendants began their ditching and

dredging activities in 1977.

The consent order does not require the defendants simply to

maintain the ground water levels in or around the reservoir

areas as defendants seem to think, but to maintain and operate

specially-designated control structures and “to protect the integ-

rity of the dikes and structures therein.” By leveling the pre-

scribed embankments in the reservoirs, defendants clearly violated

the requirements of paragraphs 4, 5, and 7 of the consent order.

Defendants further violated the terms of these paragraphs by

their plowing in the reservoir, which both accelerated the drain-

” Robert Strozewski, who had lived on the Bear Bluff farm as a boy,

testified that his parents had done some cranberry growing in the

expansion area in the 1930's. That testimony is subject to question

since the land in that area was two feet higher than the land to the east

that had been cultivated for cranberries by the Stegges and by Lloyd

Wolfe who owned the land after the Stegges. In any event, production

ofa crop in the 1930's does not mean that an area is in an established use

in the 1980’s, particularly when the evidence is that the land was not

cultivated and had grown over with willow and poplar trees.

C-26

age capacity of the reservoirs in direct violation of the require-

ment that defendants maintain the areas for maximum drainage

control and destroyed the existing wetland vegetation. The

defendants’ wetlands served as wildlife habitat, and performed

the functions of cleansing ground water and stabilizing water

flows. These functions are impaired by the removal of wetland

vegetation and the disturbance of the soils underlying that vege-

tation regardless of whether the drainage is affected. See Avoyelles

Sportsmen’s League v. Alexander, 473 F. Supp. at 533.

I find and conclude that plaintiff has shown clearly and con-

vineingly that defendants have violated paragraphs 4, 5, and 7 of

the consent order.

Site 13 - Northeast Quarter of Section 10

Although defendants contend that their work in this site

was confined to the burning and subsequent clean up of a few

piles of brush and timber, the evidence does not support the

contention. The extensive bulldozing and scraping that took place

over this ten to twelve acre area would not have been necessary

merely for the clean up of the limited amounts of material pres-

ent in the area before the work began. In any case, the spreading

out of ashes from the burning does not fall within any exception

to discharges prohibited under the Clean Water Act. The wide-

spread destruction of the previously-existing wetland foliage is

certainly a prohibited discharge; the scraping up of material exca-

vated from wetlands (waters of the United States) constitutes a

discharge. Avoyelles Sportmen’s League v. Alexander, 473 F.

Supp. at 533. (“{Wletlands include the vegetation that grows

thereon. Such lands in the absence of vegetation can supply hardly

any of the purposes of the [Clean Water] Act.”)

I find and conclude that plaintiff has shown that defendants’

scraping and redistribution of wetlands soil and vegetation in

this area without a permit and without prior written notice to the

Corps violated paragraphs 1 and 2 of the consent order.

C-27

Site 14 - Ditch in Section 35

Plaintiff has established by clear and convincing proof that

the defendants deepened a drainage ditch and discharged mate-

rial dredged from the ditch onto a wetland area. Because the

purpose and effect of this discharge was to drain wetland areas in

preparation for dry land farming, and because defendants did

not give the Corps prior written notice of the discharge, that

discharge violated paragraph 2 of the consent order."

Site 15 - Old Stegge Cranberry Beds

Altering the size and number of dikes within the established

cranberry beds falls within 47 Fed. Reg. 31812 (to be codified at

33 C.F.R. § 323.4(a)(1)Gii)(C)(1)(ii) and (iii)), as “Minor Drain-

age” under the “normal farming exception” of § 1344(f)(1)(A).

Subsection (ii) exempts from the permit requirements the instal-

lation of “water control facilities incidental to planting, cultivat-

ing, protecting, or harvesting of . .. cranberries . . ., where

these activities and the discharge occur in waters of the United

States which are in established use for such agricultural and

silvacultural wetland crop production.” Subsection (iii) exempts

discharges “for the purpose of manipulating the water levels of,

or regulating the flow or distribution of water within, existing

impoundments which have been constructed in accordance with

applicable requirements of CWA, and which are in established

use of production of. . . cranberries. . .” Plaintiffhas not proven

that the alterations within the Stegge marsh constituted a “dis-

charge of dredged or fill materials” within the meaning of the

consent order. Thus, defendants did not violate that order by

failing to provide prior written notice to the Corps.

° Plaintiff has challenged the activities at sites 14 and 15 only as

violations of paragraph 2 of the consent order.

C-28

I find and conclude that with respect to the activities at sites

1,2, 3, 5, 6,9, 10, 11, 12, 13, and 14, defendants have violated the

provisions of the consent order entered in this case on June 5,

1978, and that they are in contempt of court.

Entered this 3d day of August, 1983.

By THE COURT:

ee ee, eee ee

Barbara B. Crabb

District Judge

sn

In the

United States District Court

Hor the Western District of Misconsin

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

ROLAND G. HUEBNER, WILLIAM HUEBNER, and PETENWELL

POTATO FARMS,

Defendants.

Civil Case

No. 77-C-407-C

Docket No. 138

Filed Nov. 4, 1983

ORDER

A hearing having been held in this case before the United

States District Judge Barbara B. Crabb on September 27-29,

1983, and an order having been entered on November 1, 1983,

IT IS HEREBY ORDERED pursuant to and in accordance with

said previous order that the defendants, Roland G. Huebner,

William Huebner, and Petenwell Potato Farms, comply with the

following restoration plan.

RESTORATION PLAN

1. The purpose of this plan is to restore water levels and

associated environmental conditions consistent with the terms

and requirements of the Court’s June 5, 1978 order. A site map

(Exhibit A) is attached which notes the specific locations of each

requirement and highlights the ditches excavated by William

Huebner, Roland Huebner and Petenwell Potato Farms and

existing as of September 7, 1983.

C-30

In order to achieve the above-stated purpose, defendants

are required to do the following:

(a) Raise, operate and maintain the existing flow con-

trol structure in Beaver Creek just west of the north-south ditch

in the southeast quarter of the northeast quarter of Section 10,

T.20N., R.1E. (Exhibit A, item B). The riser on this structure

should be raised and operated to maintain the normal water level

upstream of the structure at approximately elevation 978. The

erosion problems at this structure should be repaired.

(b) Operate and maintain existing flow control struc-

ture in Beaver Creek at the western boundary of Section 10,

T.20N., R.1E. (Exhibit A, item C). The normal water level up-

stream of this structure should be maintained at approximately

elevation 979. The erosion problem at the outlet of this structure

should be repaired.

(c) Construct a channel plug just north of Beaver Creek

in the north-south ditch that follows the boundary between

Sections 9 and 10, T.20N., R.1E. (Exhibit A, item D). The

existing culvert through the ditch crossing «* Unis location must

be removed.

(d) Operate and maintain the existing flow control struc-

ture located in the north-south ditch at the southeast corner of

Section 3, T.20N., R.1E. (Exhibit A, item E), so as to maintain

the normal water level on the upstream side of the structure at

approximately elevation 975.

(e) Install, operate and maintain a flow control struc-

ture in the north-south ditch along the west side of Bear Bluff

Road South, just downstream (south) of the southern-most

existing east-west ditch in the southwest quarter of Section 2,

T.20N., R.1E. (Exhibit A, item F). The normal water level

upstream of this structure should be maintained at approximately

elevation 978. A culvert with riser, having a minimum diameter

of 48 inches (or an equivalent structure) should be utilized at this

location.

C-31

(f) Remove the channel plug at the north end of the

water supply ditch that runs northwest-southeast in the south-

east quarter of Section 2, T.20N., R.1E. (Exhibit A, item G).

(g) Remove the existing culvert and construct a channel

plug at the northern end of the north-south ditch that bisects

Section 2, T.20N., R.1E. (Exhibit A, item H).

(h) Reconstruct the north-south and east-west embank-

ments that impounded Hunters Peak Reservoir, located in Sec-

tion 3, T.20N., R.1E. (Exhibit A, item I). These embankments

should have a continuous top elevation of approximately 981.

Any drainage pipes through these embankments that are not

associated with reservoir operation must be removed.

(i) Raise, operate and maintain the existing flow con-

trol structure through the north-south reservoir embankment at

the south-east corner of Hunters Peak Reservoir, and the exist-

ing flow control structure through the east-west embankment of

Hunters Peak Reservoir at the north-south ditch that bisects

Section 3, T.20N., R.1E. (Exhibit A, item J). The risers on these

structures should be raised and operated to maintain the normal

high water level in Hunters Peak Reservoir at approximately

elevation 980. The erosion problem at the outlet of the structure

through the east-west embankment should he repaired.

(j) Reconstruct the entire embankment of Juleane Res-

ervoir, located in the northeast quarter of Section 3, T.20N.,

R.1E. (Exhibit A, item K). This embankment should be recon-

structed along the previous alignment with a continuous top

elevation of approximately 982. Any drainage pipes through this

embankment that are not associated with reservoir operation

must be removed.

(k) Operate and maintain the existing flow control struc-

ture through the Juleane Reservoir embankment at the north-

south ditch that bisects Section 3, T.20N., R.1E. (Exhibit A,

item L) so as to maintain the normal high water level in this

reservoir at approximately elevation 981. The erosion problem

on the downstream side of this structure should be repaired.

C-32

(1) Reconstruct the portion of the unnamed reservoir

embankment that has been removed in the southeast quarter of

Section 34 and the northwest quarter of the southwest quarter of

Section 35, T.2iN., R.1E. (Exhibit A, item M). This embank-

ment should be reconstructed along the previous alignment with

a continuous top elevation of approximately 985.

(m) Raise, operate and maintain the two existing flow

control structures at the ends of the reconstructed portion of

unnamed reservoir embankment described in paragraph 4.1.

above (Exhibit A, item N). One of these structures is located in

the north-south ditch at the western end of the subject unnamed

reservoir embankment, and passes through Bear Bluff Road.

The other structure is located in the east-west ditch that approxi-

mately bisects Section 34 and 35, T.21N., R.1E., and passes

through the unnamed reservoir embankment. These flow con-

trol structures should be raised, stabilized and operated, so as to

maintain the normal high water level in the subject unnamed

reservoir at approximately elevation 984.

(n) Operate and maintain the existing flow control struc-

ture (WPA Dam B-11) and a culvert with riser in the reservoir

embankment located in the northeast quarter of Section 34 and

the northwest corner of Section 35, T.21N., R.1E. (Exhibit A,

item QO), so as to maintain the normal level of this reservoir at

approximately elevation 987.5.

(o) Operate and maintain the existing flow control struc-

ture in the north-south ditch at the junction of Bear Bluff Road

and Bear Bluff Road South near the southeast corner of Section

34, T.21N., R.1E. (Exhibit A, item P). The retaining wall and

riser on the upstream side of this structure should be repaired.

(p) Maintain a culvert (36 inch minimum diameter)

through Bear Bluff Road Nerth at the east-west ditch that bisects

Section 35, T.21N., R.1E. (Exhibit A, item Q).

(q) Construct channel plugs in the four east-west ditches

located in Section 36, T.21N., R.1E., near the junction of these

ditches wjth the north-south ditch that bisects the same Section

(Exhibit A, item R).

C-33

(r) Construct a channel plug in the east-west ditch at

the northern boundary of Section 1, T.20N., R.1E., approxi-

mately 150 feet west of Cranberry Road (Exhibit A, item 5).

(s) Remove the western extensions of the cranberry

bog dikes located in the southeast quarter of Section 3, T.20N.,

R.1E. (Exhibit A, item T), so as to return this cranberry bog to

the dimensions that existed at the time of the Court’s order of

June 5, 1978.

(t) The areas in Juleane Reservoir, unnamed reserveir

and Section 34, which are plowed and not disced, should be

disced. This will restore the area to approximate original con-

tours and will allow wetland vegetation to establish in these

areas.

(u) The dikes and embankments for the reservoirs

should be constructed by scraping and bulldozing material from

the reservoirs. The materials should be removed to the deepest

depth near the embankments and dikes and be sloped into the

reservoirs.

(v) The elevation indicated in subparagraphs l(a)

through (u) above are referenced to Publie Service Commission

benchmark tablets on Dams B-8 and B-11. The corresponding

benchmark elevations are 975.62 and 988.25, respectively. These

benchmarks should be utilized to establish and verify the eleva-

tions associat ed with the required restoration measures outlined

in paragraph 1 above.

(w) The borrow material utilized for the required res-

ervoir embankment reconstruction and construction of channel

plugs and flow control structures should be the least permeable

material available on site. This material should be adequately

compacted te minimize seepage potential through these struc-

tures. Appropriate erosion control measures should be taken to

stabilize these structures and maintenance performed as neces-

sary. The reconstructed reservoir embankments should have a

top width of approximately 15 feet and side slopes no steeper

(-34

than 1 vertical to 3 horizontal. The required channel plugs should

be constructed to the elevation of the surrounding ground sur-

face and should have a minimum top length ‘of approximately 50

feet. The slopes at the ends of these plugs should be no steeper

than 1 vertical to 5 horizontal.

2. Defendants are further required to complete this plan on

or before December 31, 1983.

3. The defendants are also required to post a performance

bond, payable to the United States of America, to guarantee

their compliance with the restoration plan.

4. For one year after the restoration is completed, the plain-

tiff will monitor hydrologic and environmental conditions of the

site. Should additional restoration work be required to achieve

the desired hydrologic and environmental conditions, the plain-

tiff will propose to the defendant and the Court the necessary

additions and/or modifications.

5. That for purposes of implementing the procedure de-

scribed in subparagraph (v) above and monitoring compliance

with paragraph 1 above, the St. Paul District Engineer or his

designee shall be afforded reasonable access by the defendants

to any and all portions of the area described in paragraph 1

above.

Entered this 4th day of November, 1983.

By THE COURT:

Taste. TO ve oe

Judge Barbara B. Crabb

United States District Judge

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Appendix D

Judgment on Decision by the Court

Inu the

United States District Court

For the Mestern District of Wisconsin

CIVIL ACTION FILE No. 77-C-407-C

UNITED STATES OF AMERICA,

Plaintiff,

v. JUDGMENT

ROLAND G. HUEBNER,

WILLIAM HUEBNER, and

PETENWELL POTATO FARMS,

Defendants.

Docket No. 139

Filed Nov. 15, 1983

This action came on for hearing before the Court, Honorable

Barbara B. Crabb, United States District Judge, presiding, and

the issues having been duly heard and a decisoin having been

duly rendered,

It is Ordered and Adjudged (See Order and Restoration

Plan of November 4, 1983, for the terms and conditions of this

judgment. )

ae, Asn, Fs + Pr oe

; Judge Barbara B. Crabb

Dated this 14th day of United States District Judge

November, 1983

APPROVED AS TO FORM:

Dated at Madison, praia this 15th day of November,

1983.

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