# Petition for Writ of Certiorari — Akers v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2112%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 828 ## Text (1) Supreme Court, U.S. 85-2430 | Fier JUN 24 1986 . rn statis JOSEPH F. SPANTOL, SR. CLERK In The Supreme Court of the United States October Term, 1985 Ly. ae ROBERT W. AKERS; CALIFORNIA CATTLEMEN’S ASSOCIATION; CALIFORNIA FARM BUREAU FEDERATION; and NATIONAL CATTLEMEN’S ASSOCIATION, Petitioners, V. UNITED STATES OF AMERIOA, Respondent. “~ PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT t*. 4 Of Counsel RONALD A. ZUMBRUN LANNY T. WINBERRY ROBIN L. RIVETT Giattina & Winberry COUNSEL OF RECORD 777 Campus Commons Pacific Legal Foundation Road, Suite 180 555 Capitol Mall, Suite 350 Sacramento, CA 95825 Sacramento, CA 95814 Telephone: (916) 920-1100 Telephone: (916) 444-0154 JAMES S. BURLING Attorneys for Petitioners Pacific Legal Foundation 555 Capitol Mall, Suite 350 Sacramento, CA 95814 Telephone: (916) 444-0154 COOLS LW ae eet ee be ) S05-T451 Ext. 388 pias 4 : - i QUESTION PRESENTED FOR REVIEW Section 404(f)(1), 33 U.S.C. § 1344(f)(1), provides an exermption from wetland dredge and fill regulation by the Army Corps of Engineers for agricultural activities. Sec- tion 404(f)(2), 33 U.S.C. 4 1344(f) (2), makes the Section 404(f)(1) exemption inapplicable to certain practices. Does Section 404(f)(2) obviate the agricultural exemption when a farmer wishes to change from a wetland crop to an up- land crop, or when a farmer wishes to rotate from one wetland crop to a different wetland crop and that change might alter an area’s hydrological regime? PARTIES BELOW The parties in the action below were the following: 1. Plaintiff-appellee—United States of America. 2. Defendants-appellants—Robert W. Akers, a farm- er; John Doe Equipment Operator. 3. Plaintiffs-intervenors-appellees—National Audu- bon Society and National Wildlife Federation. 4. Defendants - intervenors - appellants — California Cattlemen’s Association, a nonprofit California corpora- tion; California Farm Bureau Federation, a nonprofit California corporation with a membership of 52 county farm bureaus which have a combined membership of over 100,000 farm families; National Cattlemen’s Association, a nonprofit corporation, composed of 245,000 individual and 50 state-assoeciation members. at ‘ ili TABLE OF CONTENTS Page QUESTION PRESENTED FOR REVIEW i PARTIES BELOW ii TABLE OF AUTHORITIES iv OPINIONS BELOW 2 JURISDICTION Tere 3 STATUTORY PROVISIONS INVOLVED 3 STATEMENT OF THE CASE 4 THE BASIS FOR JURISDICTION BELOW ___. 7 REASONS FOR GRANTING THE WRIT... —té88 I, INTRODUCTION Il. THE PLAIN LANGUAGE OF THE CLEAN WATER ACT CLEARLY EXEMPTS FROM REGULATION ACTIVITIES SUCH AS THOSE PERFORMED BY AKERS - 9 A. Normal Farming Activities Are Exempt From Corps Regulation 10 B. Subsection (f)(2) Does Not Negate the Ex- emptions of Subsection (f)(1) Because Mr. Akers Is Not Bringing the Subject Property into a New Use .. 11 III. CONGRESS INTENDED THE AGRICULTUR- AL EXEMPTIONS TO THE CLEAN WATER ACT TO APPLY TO A FULL RANGE OF AG- RICULTURAL ACTIVITIES 13 IV. CONCLUSION : 21 APPENDIX A A-l APPENDIX B B-1 APPENDIX C C-1 iv TABLE OF AUTHORITIES Page CasEs Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983) 11, 20 Caminetti v. United States, 242 U.S. 470 (1917) ........ 14 Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921) 14 Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911) — United States v. Huebner, 752 F.2d 1235 (7th Cir. 1985), cert. denied, — U.S. —, 88 L. Ed. 2d 50 (1985) 11, 20 STATUTES 28 U.S.C. § 1254(1) 3 § 1292(a) (1) ...... 7 Clean Water Act § 404, 33 U.S.C. § 1344 ow. 3, 5, 20, 21 § 404(f), § 1344(f) 3, 9, 15, 16, 18, 19, 20 § 404(f)(1), § 1344(f) (1) -.. 11 § 404(f)(1)(A), § 1344(f) (1) (A) 6, 10 § 404(f) (2), § 1344(f) (2) 11, 12, 19 § 404(h), § 1344(h) 19 Rvuxes anpD RecuLations 33 C.F.R. § 232.3 (1985) 10 § 323.4 (1985) . 10 49 Fed. Reg. 39,019 (1984) 10 v TABLE OF AUTHORITIES—Continued Page MISCELLANEOUS The Federalist No. 17 (A. Hamilton) (J. Cooke ed. 1961) 8 Environmental Policy Division of the Congres- sional Reference Service, a Legislative History of the Water Pollution Control Act Amendments of 1972 (Comm. Print 1973) _.15, 16, 17, 18, 19 a — VE Se In The Supreme Court of the United States October Term, 1985 ? >. ———{)>- ROBERT W. AKERS; CALIFORNIA CATTLEMEN’S ASSOCIATION; CALIFORNIA FARM BUREAU FEDERATION; and NATIONAL CATTLEMEN’S ASSOCIATION, Petitioners, v. UNITED STATES OF AMERICA, Respondent. — ws — i PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 4. —— Petitioners, Robert W. Akers, California Farm Bureau Federation, California Cattlemen’s Association, and Na- tional Cattlemen’s Association, respectfully request that this Court issue a writ of certiorari to review a decision of the United States Court of Appeals for the Ninth Circuit. That decision allows the Army Corps of Engineers (Corps) to maintain dredge and fill regulatory permitting juris- diction over substantial portions of Mr. Akers’ farmland, as well as mi:.ons of additional farmland acres throughout the United States. By the decision, a farmer must obtain a 1 eo ee Kt ee es ae permit in two particular instances at issue. First, a permit must be obtained wherever a farmer wishes to change from a wetlaud crop to an upland crop. Second, a permit is re- quired for changes from one wetland crop to another wet- land crop when such a change may alter the ‘‘hydrological regime.’? The Ninth Circuit’s pronouncement on the reach of the Corps’ regulatory jurisdiction contradicts the plain language as well as the unambiguous intent of Congress to exempt certain agricultural activities from federal regula- tion. The reach of the Corps’ regulatory jurisdiction is a critical decision that should be decided by this Court. fon} OPINIONS BELOW The opinion of the Court of Appeals is reported at 785 F.2d 814 (9th Cir. 1986). The opinion was filed March 26, 1986, and judgment filed April 21, 1986. The opinion is reproduced in petitioners’ Appendix B.! The opinion of the District Court is not officially re- ported. That court’s findings of fact and conclusions of law and order granting preliminary injunction were filed January 15, 1986, and are reproduced in Appendix C. io} : All of the references cited in this petition may be found in the record and are available under Supreme Court Rule No. 19.1. In addition, certain references are also included in the appendix to this petition, as indicated. JURISDICTION The opinion of the Court of Appeals was filed March 26, 1986, and judgment filed April 21, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). r.% Ww STATUTORY PROVISIONS INVOLVED At issue in this case is the meaning and extent of the agricultural exemptions to Section 404 of the Clean Water Act. The exemptions found at Section 404(f) of the Act, codified at 33 U.S.C. 4 1344(f), are reproduced in full in Appendix A. Section 404(f) reads in relevant part: **(f}(1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill ma- terial— ‘“*(A) from normal farming, silvicul- ture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest prod- ucts, or upland soil and water conservation prac- tices ; ‘*is not prohibited by or otherwise subject to regula- tion under this section or section 131l(a) or 1342 of this title (except for effluent standards or prohibi- tions under section 1317 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 naviga- ble waters into a use to which it was not previously subject, where the flow or circulation of navigable wa- ters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.’’ ry. Ww STATEMENT OF THE CASE Millions of acres of American farmland can be classi- fied as wetlands. In 1984 Robert Akers, petitioner, pur- chased farmland in Northern California which, according to the Army Corps of Engineers, encompasses approxi- mately 2,800 acres of wetlands.? Like all good farmers and ranchers Mr. Akers sought to modernize his farming opera- tion by altering crop patterns, intensifying irrigation ac- tivities, and generally upgrading the efficiency of the oper- ation. The land owned by Mr. Akers has been in continu- ous production since 1897. Opinion, Appendix at B-10. Except for a few sporadic attempts at growing cereal grains the land has been used primarily for the cultivation of meadow hay. Opinion, Appendix at B-10; Findings, Ap- pendix at B-8. Meadow hay cultivation on Mr. Akers’ prop- erty involves the use of traditional wild flood irrigation to ensure soil saturation in the spring. The fields have always been drained before harvest in order to allow mechanized cutting and baling of the dry hay. At issue in this appeal are two particular modernization programs that Mr. Akers attempted to implement. First, he tried to convert some areas under wetland meadow hay cultivation to upland grain cultivation. Second, Mr. Akers tried to convert some of the meadow hay cultivation to wetland wild rice farm- ing. The Army Corps of Engineers asserts that Mr. Akers 2 _ A portion of this wetlands acreage was recently sold. How- ever, Mr. Akers retains a significant portion of wetlands farmland. 5 must first obtain a Clean Water Act § 404 dredge and fill permit before he may proceed with either of these pro- grams. Congress recognizes the importance of natural wetlands for flood control, fisheries, and migratory bird populations. For this reason it passed Section 404 of the Clean Water Act, codified at 33 U.S.C. § 1344, to preserve and protect this country’s wetlands. Congress was well aware, how- ever, that an overbroad reading of the Clean Water Act could unjustifie bly and adversely affect the ability of farm- ers and ranchers to carry on their day-to-day operations. Farming and ranching, by their inherent nature, must alter and affect the character and use of land, but the tremendous benefits derived generally far outweigh any concern over the conversion of wetland farming to upland farming or alternative types of wetland farming. Thus, Congress en- acted a well-balanced statute that not only preserves the ability of farmers to efficiently and independently munage their operations but also protects this nation’s wetland en- vironments to the maximum extent practicable. It is this balance, crucial to farming operations throughout the Unit- ed States, that is at stake in this lawsuit. What Congress did that is essential to American agri- culture is pass a regulatory exemption to the Section 404 permit procedures for a wide range of agricultural activi- ties including cultivation, irrigation works, and road build- ing. When Mr. Akers commenced his upgrade activities the Corps began attempts to regulate Mr. Akers’ activities through the Section 404 permitting process. Findings, Ap- pendix at C-2-C-4; Opinion, Appendix at B-3 -B-5. Mr. Akers, however, believed that his activities were within 6 the Section 404(f) agricultural exemptions and proceeded, for a time, with his farming operations. In response to Mr. Akers’ activities the Corps obtained a temporary re- straining order preventing Mr. Akers from conducting farm modernization activities on his property. The tem- porary restraining order was granted and later, after a hearing before the United States District Court, Eastern District of California, a preliminary injunction was grant- ed. Findings, Appendix at C-24. After a motion for reconsideration was denied, Mr. Akers appealed to the Ninth Cireuit Court of Ap} eals. The appellate court af- firmed the granting of the preliminary injunction by the District Court. Opinion, Appendix at B-20. Mr. Akers, the California Cattlemen’s Association, the National Cattlemen’s Association, and the California Farm Bureau Federation all believe that the Ninth Circuit made serious legal errors in upholding the preliminary injunc- tion. Not at issue here is any of the factual record of the protracted and often strained struggle between Mr. Akers and the Corps. Rather, at issue are two specific legal inter- pretations of the agricultural exemption which have a sub- stantial effect not only on Mr. Akers but also on many indi- vidual farmers and ranchers who are members of California Cattlemen’s Association, National Cattlemen’s Association, and California Farm Bureau Federation. Specifically, the court ruled that the exemption in Sec- tion 404(f)(1)(A) for ‘‘normal farming’’ does not apply when a farmer wishes to start upland farming operations on an area previously limited to wetlands agriculture. Opinion, Appendix at B-10 - B-11. Additionally, while the court correctly held that ‘‘[wlJe do not believe that Congress intended to place the burden 7 of Corps permit regulation on farmers who desire merely to change from one wetland crop to another,’’ Opinion, Ap- pendix, at B-11, the court erroneously qualified this state- ment by saying that classified as ‘‘nonexempt [are] those activities which change a wetland’s hydrological regime.’’ Opinion, Appendix at B-16-B-i7. In other words a con- version from one wetland crop such as wild hay to another wetland crop such as wild rice would still require a permit if the hydrological regime were to be altered. The placing of crop borders, spreader dams, and disking all conceiv- ably could affect an area’s surface and subsurface water flow, duration, and quantity thereby affecting the ‘‘hydro- logical regime,’’ and invoking Corps jurisdiction. The regulatory process, with all of its concomitant burdens and delays, is one which farmers must avoid and which Con- gress intended them to avoid. Otherwise, farmers will not be able to timely make the necessary day-to-day manage- ment decisions that are part of farming such as when and how to flood or drain a field or when and what type of crop to plant. The Court’s restrictive reading of this agricul- tural exemption cannot be supported either by the plain language of the statute or the legislative history of the Act. ty. Vv THE BASIS FOR JURISDICTION BELOW Jurisdiction in the Court of Appeals for the Ninth Circuit was pursuant to 28 U.S.C. § 1292(a) (1). REASONS FOR GRANTING THE WRIT I INTRODUCTION ‘‘[T'lhe supervision of agriculture and of other con- cerns of similar nature, all those things in short which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposi- tion in the Federal councils to usurp the powers with which they are connected; because the attempt te ex- ercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that rea- son, would contribute nothing to the dignity, to the im- portance, or to the splendor of the national govern ment.’’ The Federalist No, 17, (A. Hamilton) (J. Cooke ed. 1961). The day-to-day regulation of agriculture is not the proper province of the federal government. The constitu- tional framers recognized this truth, as did the United States Congress when it passed the agricultural exemption to the Clean Water Act. Much debate has been heard over the years as to where the proper limits of federal regula- tion of agriculture lie. Here, Congress plainly set the limits of federal regulation and power over agriculture; by usurp- ing this power the Army Corps of Engineers is creating those very ‘‘troublesome’’ ills predicted by Hamilton. As long as the Corps remains mired in its regulatory excess, we will continue to see the will of Congress flouted and the dignity of the national government diminished at the direct expense of many thousands of farmers throughout the nation. II THE PLAIN LANGUAGE OF THE CLEAN WATER ACT CLEARLY EXEMPTS FROM REGULATION ACTIVITIES SUCH AS THOSE PERFORMED BY AKERS Section 404(f) of the Clean Water Act, codified at 33 U.S.C. $1344(f), provides an exemption for a range of farming, silviculture, and ranching activities from the reg- ulatory jurisdiction of the Army Corps of Engineers. Sec- tion 404(f) reads in relevant part: ‘*(f)(1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill ma- terial— ‘*(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; ‘tis not prohibited by or otherwise subject to regu- lation under this section or section 1311(a) or 1342 of this title (except for effluent standards or pro- hibitions under section 1317 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 nav- igable 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.’’ Thus, to qualify for the exemption, Mr. Akers must be engaged in normal farming activities. It is undisputed that 10 he was. Mr. Akers also must not be putting the area to a use to which it was not previously subject if that new use alters the hydrological regime. It is also undisputed that the area has been continuously farmed throughout this century and that farming is the only anticipated use. A. Normal Farming Activities Are Exempt from Corps Regulation Section 404(f)(1)(A) exempts normal farming and ranching activities from the Corps’ regulatory jurisdic- tion. The subsection also lists certain specific activities as being within this exemption. However, because the list is preceded by the words ‘‘such as’’ the list is not exclu- sive. What is relevant is whether or not Mr. Akers’ ac- tivities constitute ‘‘normal farming.’’ No allegations have ever been advanced that the activities of Mr. Akers were for any purpose but farming. His farmland is not being converted into a housing development, golf course, or shopping center; the past, present, and anticipated future use is for farming and only farming. The regulations promulgated by the Army Corps of Engineers for this exemption, 33 C.F.R. 4 323.4 (1985), and proposed regulation 33 C.F.R. § 232.3, located in 49 Federal Register 39,019 (1984), help define the scope of normal farming activities. Specifically, they are required to be ‘‘part of an established (7.e., on going) farming, sil- viculture, or ranching operation.’’ It is undisputed that the Akers’ property has been farmed since the turn of the century. See Opinion, Appendix at B-10. The activities of Mr. Akers will not bring any unfarmed area into farm 11 production ; the activities will only modernize and intensify the established farming uses of the property. B. Subsection (f) (2) Does Not Negate the Exemptions of Subsection (f)(1) Because Mr. Akers Is Not Bringing the Subject Property into a New Use Section 404(f)(2) of the Clean Water Act states that the exemptions outlined in Subsection (f}(1) do not apply when there is a ‘“‘discharge of dredged or fill material .. . 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.’’ (Emphasis added.) The Court of Appeals stated that this ‘‘recapture’’ provision applies to any activity that may alter a wet- land’s hydrological regime: ‘‘Nonexempt [are] those ac- tivities which change a wetland’s hydrological regime.’’ Opinion, Appendix at B-16-B-17. This is clear error and presents an important federal question over the reach of the Army Corps of Engineers’ jurisdiction. The recapture provision, by its plain language, applies only to activities which put an area ‘‘into a use to which it was not pre- viously subject. Circuit courts have correctly reasoned that when a farmer attempts to put previously unfarmed land into production by destroying or altering an existing wetland, then Section (f)(2) applies. See, e.g., United States v. Huebner, 752 F.2d 1235 (7th Cir. 1985), cert. denied, — U.S. —, 88 L. Ed. 2d 50 (1985); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983). However, when a farmer rotates crops he is not 12 putting land into a use to which it was not previously subject. The recapture provision is absolutely and totally inapplicable. Changing from a wetland farming use to an upland farming use continues ‘‘normal farming’’ of an area de- spite any change in the hydrological] regime. Likewise, a change from one wetland crop such as wild hay cultiva- tion to another wetland crop such as wild rice cultivation most certainly is a continuation of normal farming not- withstanding a potential change in the hydrological regime. The applicability of the recapture provision is crucial to many thousands of farmers throughout the United States. Congress never intended that the Clean Water Act would straitjacket farmers wishing to change crop patterns, or simply intensify existing cultivation. Con- gress recognized that farmers should not have to fear that every time they do something that might affect their farmiand’s hydrological regime they will suddenly be subject to Corps regulation. Rather, the agricultural ex- emption was intended to protect such farmers from the threat of regulation. The subsection 404(f)(2) exception was intended to prohibit using the guise of agricultural development to hide a conversion of land from one use to another and dif- ferent use. However, Section 404(f)(2) in no way can be reasonably construed to prohibit the intensification or modification of an existing agricultural use. Normal farm- ing is normal farming whether it be for upland or lowland crops. The rotation between crops, for example, from hay to wheat or vice versa, is not putting the land to a use to 13 which it was not previously subject. If farmers and ranch- ers must approach the Corps for permission to engage in norma! crop management then the exemptions of Con- gress are meaningless.’ III CONGRESS INTENDED THE AGRICULTURAL EXEMPTIONS TO THE CLEAN WATER ACT TO APPLY TO A FULL RANGE OF AGRICULTURAL ACTIVITIES The plain language of the exemptions to the Clean Water Act leaves little ambiguity. The Court of Appeals held that these exemptions do not encompass a full range of normal farming activities. Furthermore, it stated that the legislative history of the amendments to the Clean Water Act reveal that the exemption must be very nar- rowly construed so that only very few farming-related activities will be allowed by the Corps to proceed without permit requirements. Opinion, Appendix at B-8- B-9. However, when the entire legislative history is examined, it becomes abundantly clear that Congress had every in- tention to exclude normal] farming activities, such as crop rotations, from the domain of the Army Corps of Engin- eers. Furthermore, it is plain that the activities of Mr. Akers fall well within the congressional intent. The Court of Appeals relied on an isolated statement made during debate by Representative Harsha for the 3 Finaliy, it should be noted that a literal reading of the ex- emption provides even less support to the Court of Appeals’ position. The exemption does not speak of uses to which lands were subjected to but to uses the lands were “subject to.” Thus, if a wetland area was merely subject or susceptible to farming uses, there is a valid argument that it should come within the exemption. 14 proposition that no agricultural activity is exempt which somehow affects a wetland’s hydrological regime. Opin- ion, Appendix at B-17. However, a statement in debate should not and must not be allowed to refute the plain and obvious meaning of a statute. See, e.g., Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474 (1921) (it is “well established that the debates in Congress expressive of views and motives of individual members are not a safe guide, and hence.may not be resorted to, in ascertaining the meaning and purpose of a lawmaking body”) ; Camin- etts v. United States, 242 U.S. 470, 490 (1917) (weight giv- en to plain meaning of statute, despite language of con- gressional report). Nor does such an isolated statement refute the overwhelming evidence obtained from an exam- ination of the entire debate, that Congress had every inten- tion for the agricultural exemption to apply to a wide range of legitimate agricultural activities. Although re- sort to isolated examples from legislative debate is not particularly useful, it is also established that an under- standing of the entire debate can be helpful to establish what problems or evils the Legislature was trying to rem- edy. See, e.g., Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 50 (1911) (debates shed light on ‘‘en- vironment’’ and ‘‘history’’ behind the Sherman Act). Here it is obvious that Congress passed the agricultural exemp- tions to relieve farmers from the spectre of excessive regu- lation. After Congress enacted the Clean Water Act in 1972 the Army Corps of Engineers expanded the scope of its jurisdiction over navigable waterways to further include all those waters affecting navigable waterways, including wetlands. Soon thereafter the Corps began to promulgate 15 regulations which would have extended its regulatory con- trol into the day-to-day activities of all farming in wetlands areas and even those areas that were merely farmlands with high seasonal saturations.‘ In response to the Corps’ attempt to expand excessive- ly its jurisdiction under the 1972 Clean Water Act, Con- gress in 1977 passed the Section 404(f) exemptions the scope of which is the subject of this petition. The intent of these exemptions clearly was to remove the Corps’ regu- latory jurisdiction from normal farming activities. Even with the proposed exemptions, however, there remained a certain amount of wariness of the Corps among many members of the Senate. Led by Senator Berntsen these members attempted to pass an additional amendment to the Clean Water Act which would have removed wetlands entirely from Section 404 regulation. It is most telling to note that during the debate over Senator Bentsen’s amend- ment, the Senate was repeatedly assured that the Section 404(f) exemptions alone would relieve farmers from the ‘ During the Senate debate over the 1977 Amendments to the Clean Water Act Senator Muskie stated: “The corps proceeded to take [the Clean Water Act] and . . . expand it far beyond any intent of the Congress so that it found itself threatening regulation in areas of the country which the corps had never imagined it had any jurisdiction over. “We all began to get letters from farmers, foresters, ranchers, from people whose activities in the mind of Con- gress were not in the slightest bit intended to be affected ... 2” See Environmental Policy Division of the Congres- sional Reference Service, a Legislative History of the Water Pollution Control Act Amendments of 1972 (Legislative History) at 948 (Comm. Print 1973). 16 type of excessive regulatory jurisdiction that the senators were concerned with. For example, in introducing the amendment that would have excluded wetlands from Clean Water Act regulation Senator Bentsen stated: “T find it offensive that before a small farmer can dig new irrigation ditches he must first write the U.S. Army for permission, complete the necessary Federal forms, and then wait an average of 125 days while his request is shuffled from one bureaucrat’s in-box to another. I also find it offensive that a farmer who has paid hard-earned money for new land 2 years ago may now be prohibited by the Government from improving that land for agriculturaliy productive uses, and will not receive a penny in just compensation for his loss of income from the property.’’ Legislative History at 905. In response, Senator Bentsen was assured that the proposed 404(f) exemption alone would free farmers from excessive government regulations. As Senator Hart stated, the exemption “does exempt activities which are normal farming or agricultural activities, run by indi- viduals or family farmers.” Legislative History at 907-08. See also remarks of Senator Stafford at 912 and remarks of Senator Baker at 922 (“[t}he committee’s amendment [Section 404(f)] has responded to this confusion and makes it clear, for example, that normal farming, silvicul- ture, and ranching activities, such as plowing, cultivating, seeding, harvesting, upland soil and water conservation practices and minor drainage are excluded from section 404 altogether”). 17 Despite these reassurances there was still some un- easiness by some senators. Senator Domenici, in support of Senator Bentsen’s amendment, stated: “I think we have an opportunity here in the Senate to undo something that has grown up that we really never intended, and not to continue to ignore the fact that we never intended under section 404 that the Corps of Engineers be involved in the daily lives of our farm- ers, realtors, people involved in forestry, anyone that is moving a little bit of earth anywhere in this coun- try that might have an impact on navigable streams. We just did not intend that. “We exempt ordinary farming, but farming should not have been involved to begin with. So the farmer still does not know whether his activity is normal or not.” Legislatwe History at 924 (emphasis added). Senator Hart reassured Senators Domenici and Bent- sen that the proposed 404(f) exemptions would cover farmers. Senator Hart stated: “Every proposal before the Senator, every one, is designed to exempt those normal activities from that kind of overregulation by the Corps of Engineers or anybody else. Any argument that is made on the floor to the contrary simply misrepresents one or the other of the proposals upon which we will be asked to vote before this debate is over. “The committee Amendment [Section 404(f)] also specifically exempts the construction and main- tenance of agricultural irrigation ditches and the maintenance of agricultural drainage ditches.” Legis- lative History at 928. 18 The debate continued. Senator Dole stated “[w]ithout this [the Bentsen] amendment, our farmers and ranches and others could be subjected to unnecessary bureaucratic harassment.” Legislative History at 938. Once again the senators were reassured that the 404(f) exemption pro- tected the farmers although the Corps should continue to have jarisdiction over wetlands because without that juris- diction there would be “an open invitation for the dredgers of this country to find wetland areas for the disposai of their contaminated waste and spoil. If we adopt the [Bentsen] amendment, that is what will happen.’’ State- ment of Senator Muskie, Legislatwe History at 940. De- spite the misgivings of the senators who wished to pass the Bentsen amendment, the Senate ultimately decided that farmers would be fully protected by the Section 404(f) exemptions. The Bentsen amendment was not passed. This legislative history is highly relevant to the proper interpretation of Section 404(f). In this debate it is clear that normal day-to-day farming activities, such as crop rotations or increasing of efficiencies or moderni- zations of farmland, were to be covered under the 404(f) exemptions. If there had been any credible evidence that normal farming activities such as those conducted by Mr. Akers were not to fall within the exemption then the Senate would not have passed the exemptions without further modifications. Instead, the exemptions were passed in their present form because the senators believed that the 404(f) amendment completely precluded the Army Corps of Engineers from asserting its jurisdiction over the lives and day-to-day management decisions of America’s farm- ers. 19 It should be further noted that Section 404(f)(2) was intended only to preclude the change from an agricultural use into another use or vice versa under the guise of “farming activities” and was not intended to affect change among farm uses. Section 404(f)(2) was most certainly not intended to preclude the changing of one crop to an- other crop. The Senate had no intention of forever pre- venting farmers from engaging in necessary and essential crop rotations or intensifications of existing agricultural uses. It only intended to prevent the conversion of wet- lands into radically new uses. For exatnple, in the Senate debates it was stated by Senator Stafford that “permit review is necessary for discharges to convert a hardwood swamp to another use through construction of dikes or drainage channels.” Legislative History at 913. Finally, it should be noted that the House of Repre- sentatives also believed that the agricultural exemptions would be applied to a broad range of farming activities. In the House debate of April 5, 1977, of H.R. No. 199, a sub- stantively identical exemption to Section 404(f) was de- bated. The agricultural exemption Section 404(h), reprint- ed in Legislative History at 1240, was the subject of the comments of representatives Harsha and Cleveland who stated that ‘‘[t]his procedure would exempt by statute vir- tually all agricultural operations by straight exemption of a list of specific activities from any requirement for any permit whatsover.’’ Legislative History at 1265 and 1298 (emphasis added). Subsequent judicial decisions involving the applicabil- ity of the agricultural Section 404(f) exemptions support the argument that Congress intended to exempt norma! ag- ricultural activities from the Corps’ jurisdiction, but it did 20 not intend to exempt wholesale conversions of nonfarmland into farmland. For example, in Avoyeiles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, it was correctly deter- mined that the agricultural exemptions could not apply to a massive land clearing, swamp drainage, and cypress for- est removal program designed to put previously nonagri- cultural land into agricultural use. Id. at 925-27. Clearly, the exemptions could not apply to an area where no agri- cultural activities had occurred and where farming could not begin until the completion of the wetlands removal pro- gram. In United States v. Huebner, 752 F.2d 1235, the court also held that to the extent that nonagricultura] wetlands were being converted into agricultural lands the Section 404(f) exemption did net apply. In this case the wetlands have been used for farming for generations and will remain in agricultural use for the foreseeable future. Nonagricultural land is not being con- verted into agricultural land and agricultural land is not being converted into nonagricultural land. Congress did not intend to regulate the activities of Mr. Akers. Congress did not intend to allow the intrusion of federal regulation into the day-to-day activities of this nation’s farmers. Rather, Congress intended to prevent the wholesale pollution or alteration of this nation’s wet- lands by industrialists or developers who were not engag- ing in legitimate ongoing farming or silvicultural activities. Because none of Mr. Akers’ farm activities involve the conversion of farmland into nonfarm uses, and becanse there is no credible factual evidence that his activities fall outside of the exemptions, he should never have been sub- jected to the Corps’ Section 404 regulatory jurisdiction. 21 IV CONCLUSION The Ninth Circuit held that the Army Corps of Engi- neers has Sectiou 404 permitting jurisdiction over farming activities that merely involve rotation from wetland crops to upland crops, or from one wetland crop to another wet- land crop which may affect the farmland’s hydrologial re- gime. This errant holding will negatively affect the man- agement flexibility and practices of countless farmers na- tionwide and has converted the Army Corps of Engineers into these farmers’ managing general partner. Whether Congress intended such a result is an important question of federal law which has not been, but should be, settled by this Court. For these reasons and those stated above, the petition for writ of certiorari should be granted. Respectfully submitted, Of Counsel RONALD A. ZUMBRUN LANNY T. WINBERRY ROBIN L. RIVETT Giattina & Winberry COUNSEL OF RECORD 777 Campus Commons Pacific Legal Foundation Road, Suite 180 555 Capitol Mall, Suite 350 Sacramento, CA 95825 Sacramento, CA 95814 Telephone: (916) 920-1100 Telephone: (916) 444-0154 JAMES S. BURLING Attorneys for Petitioners Pacific Legal Foundation 555 Capitol Mall, Suite 350 Sacramento, CA 95814 Telephone: (916) 444-0154 Dated: June, 1986. A-1 APPENDIX A Title 33 U.S.C. § 1344: ‘*(f) Non-prohibited discharge of dredged or fill material **(1) Except as provided in paragraph (2) of this sub- section, the discharge of dredged or fill material— ‘*(A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivat- ing, 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 emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures ; **(C) for the purpose of construction or mainte- nance of farms or stock ponds or irrigation ditches, or the maintenance of drainage ditches; **(D) for the purpose of construction of tempo- rary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters; **(E) for the purpose of construction or main- tenance 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 practices, to assure that flow and circulation patterns and chemical and biological char- acteristics 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 environ- ment will be otherwise minimized ; ‘*(F) resulting from any activity with respect to which a State has an approved program under section A-2 1288(b)(4) of this title which meets the requirements of subparagraphs (B) and (C) of such section, is not prohibited by or otherwise subject to regulation un- der this section or section 1311(a) or 1342 of this title (except for effluent standards or prohibitions under sec- tion 1317 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 permit under this section.’’ B-1 APPENDIX B UNITED STATES of America, Plaintiff-Appellee, v. Robert W. AKERS and John Doe Equipment Operator, Defendants-Appellants. No. 85-1750. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 12, 1985. Decided March 26, 1986. Before WRIGHT, KENNEDY and BEEZER, Circuit Judges. EUGENE A WRIGHT, Circuit Judge: This litigation is the unfortunate result of a standoff between a California farmer who seeks to farm his wet- lands more productively and the Army Corps of Engineers B-2 which regulates wetland use under the Clean Water Act (“Act”), 33 U.S.C. §§ 1251-1376 (1982 & Supp. I 1984). The Corps succeeded in enjoining dredge and fill activities for which a permit had not been sought. We are asked to construe the Act’s exemptions and review the scope of the preliminary injunction awarded to the government. We have jurisdiction under 28 U.S.C. §1292(a)(1), and we affirm. BACKGROUND In January 1984, Robert W. Akers purchased approxi- mately 9,600 acres in Lassen and Modoe Counties, near Bieber, California. The property includes 2,889 acres of wetlands, known locally as the “Big Swamp.” Ash Creek, a tributary to the Pit River, flows across the property. The Pit River, Ash Creek, and their channels and adjacent wetlands are subject to the Corps’s jurisdiction under Sec- tion 404 of the Act, 33 U.S.C. § 1344 (1982).! Big Swamp is an important wildlife habitat. It pro- vides seasonal refuge for numerous species, including the bald eagle and peregrine falcon, both endangered species, the greater sandhill crane, listed as rare by California au- thorities, and the cackling Canada goose, whose numbers have decreased sharply in recent years. Less threatened species including Canada geese, snow geese, and mallard, pintail, shoveler and cinnamon teal ducks, also inhabit the area. 1. Akers concedes, for purposes of this case, that portions of his property are “wetlands” under the Corps’s expansive def- inition, 33 C.F.R. § 323.2(c) (1985). His principal contention, however, is that his activities are exempt. B-3 The following chronology summarizes Akers’ battle with the Corps over Big Swamp farming: March 1984 May 4 May 15 July 16 Corps learned of Akers’ “farming plan” to carry out extensive grading, leveling, drainage and water diversion to convert the wetlands to farm land suitable for growing upland crops. After a prelim- inary investigation, the Corps deter- mined that its jurisdiction extended to roughly one-third of Akers’ property and that a Section 404 permit would be required. Akers sued the government for declara- tory and injunctive relief under the Act alleging that the Corps’s assertion of regulatory jurisdiction was improper and illegal. TRO issued enjoining Corps from asserting regulatory juris- diction over Akers until hearing on mo- tion for preliminary injunction. The order also enjoined Akers from con- struction activities. Akers’ motion for preliminary injunc- tion was denied. Akers voluntarily dismissed his lawsuit. He began the first of three phases of earthmoving activity. Along the west- ern border of his property, he built a dike 3,500 feet long, two to three feet high and six feet wide. He first told the Corps he was ditch cleaning, but later said he was repairing a pre-existing temporary irrigation structure. Late July or early Corps determined that Akers needed a August permit and issued a cease and desist or- der. By that time, the project was fin- ished. August 13 August 30 September 2 September 13 September 17 September 26 B-4 Corps withdrew cease and desist order based on assurances that the dike would be used only for the purposes that the previous structure had served (although new dike was longer and in a different loeation). Akers was informed by the Corps’s Dis- trict Engineer (“DE”) that 2889 acres of his farm contained wetlands within the Corps’s jurisdiction. Corps learned of work in central portion of wetlands. Corps’s aerial survey revealed two-mile long dike had been constructed east-to- west through the wetlands. On the west end, the dike connected perpendicularly to the other recently-constructed dike on the: western property line. A grader and tractor (pulling discs) were seen along the dike. Some wetlands south of the dike had been leveled. Corps issued a cease and desist order. Fly-over showed that sometime after September 13, the dike had been length- ened from two to three miles. Fly-over revealed large north-south ditch on the eastern edge of the prop- erty, possibly 50 feet wide. While the ditch was mostly on non-wetlands, it filled two natural channels of Ash Creek. Corps also observed roads being constructed in the northwest section of the property. These roads blocked sev- eral overflow channels of the Pit River. October 3 October 5 October 24 October 31 January 14, 1985 January 15 B-5 The U.S. sued Akers seeking declara- tory and injunctive relief, civil penalties and restoration. District court granted TRO forbidding Akers from depositing dredged or fill material in waters on his property, ex- cept in certain channels with Corps’s permission. Court orally granted government’s mo- tion for preliminary injunction. Written TRO entered. Oral arguments on motions for recon- sideration and intervention of the Cali- fornia’s Cattlemen’s Association, Agri- cultural Council of California, National Cattlemen’s Association, and California Farm Bureau (“Cattlemen”) on behalf of Akers and the National Audubon So- ciety and National Wildlife Federation (‘‘Audubon’’) on behalf of the govern- ment. Court issued written findings of fact, conclusions of law and order reconfirm- ing the earlier oral preliminary injunc- tion. The order prohibited Akers from depositing dredged or fill material into the waters, channels or wetlands pre- viously delineated by the Corps unless he: (1) obtains a permit from the Corps, or (2) submits a proposal for dredge or fill activities, which he asserts are not within the Corps’ jurisdiction, and (a) is informed in writing by the DE that a permit is not necessary; or (b) is not informed in writing by the DE whether a permit is necessary within 15 days of receipt of his proposal. The B-6 court also ordered that Akers must comply in good faith with Corps cease and desist orders regarding dredge and fill activities on his property. January 31 Court granted permissive intervention of the Cattlemen and Audubon groups. This appeal followed. Akers has not applied for a § 404 permit from the Corps. STANDARD OF REVIEW A preliminary injunction will be reversed “only if the lower court abused its discretion or based its decision on an erroneous legal, standard or clearly erroneous findings of fact.” Flynt Distributing Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984). The injunction will be upheld if the court correctiy found that the government demon- strated either (1) probable success on the merits and the possibility of irreparable injury, or (2) that serious ques- tions are raised and the balance of the hardships tips sharply in its favor. Goldte’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 470 (9th Cir.1984). These are not separate tests, but rather, “extremes of a single conti- nuum.” Benda v. Grand Lodge of the International Asso- ciation of Machinists € Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). - STATUTORY FRAMEWORK The Act aims “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ 33 U.S.C. $1251(a) (1982). “This purpose is to be achieved by compliance with the Act, including compliance B-7 with the permit requirements.” Weimberger v. Romero- Barcelo, 456 U.S. 305, 315, 102 S.Ct. 1798, 1804, 72 L.Eid.2d 91 (1982) (footnote omitted). The Act prohibits the discharge of dredged or fill ma- terials into “navigable waters”—-defined as “waters of the United States’’—unless authorized by a permit issued by the Corps pursuant to $404. See generally 33 U.S.C. §§ 1311, 1344 (1982). “Waters of the United States” is broken down into seven categories, including wetlands. See 33 C.F.R. § 323.2(a) (1985). Recently, a unanimous Supreme Court upheld the Corps’s wetlands definition’ in United States v. Riverside Bayview Homes, Inc., — U.S. —, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). The lands in question are wetlands under the Corps’s definition; hence, the Corps had authority, absent an applicable exception, to require Akers to obtain a permit before engaging in dredge and fill activities. Limited exemptions from the permit requirement are found in Section 1344(f), which provides in pertinent part: (f) Non-prohibited discharge of dredged or fili ma- terial (1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material— 2. Under the Corps’s definition, “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of veg- etation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and sim- ilar areas. 33 C.F.R. § 323.2(c) (1985). While the Court con- strued the 1977 definition, it noted that the 1982 definition, quoted above, is “substantively identical.” United States v. Riverside Bayview Homes, Inc., — U.S. —, 106 S.Ct. 455, 458, 88 L. Ed. 2d 419 (1985). ~ B-8 (A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cul- tivating, minor drainage, harvesting for the pro- duction of food, fiber, and forest products, or up- land soil and water conservation practices ; (C) for the purpose of construction or mainte- nance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches ; (E) for the purpose of construction or mainte- nance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accord- ance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable wa- ters are not impaired, that the reach of the navi- gable waters is not reduced, and that any adverse effect on the aquatic environment will be other- wise minimized ; is not prohibited by or otherwise subject to regu- lation under this section .... (2) Any discharge of dredged or fill material into the navigable waters incidental to any activ- ity 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. Akers’ activities must be analyzed in light of the Act’s purposes and the intended scope of its exemptions. The Fifth and Seventh Circuits have construed the § 1344(f) (1) B-9 exemptions narrowly. See United States v. Huebner, 752 F.2d 1235, 1240-41 (7th Cir.), cert. denied, — U.S. —, 106 §.Ct. 62, 88 L.Eid.2d 50 (1985); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 925 n. 44 (5th Cir. 1983). This construction is consistent with the legislative his- tory. Senator Muskie described the exemptions during Senate debate : New subsection 404(f) provides that Federal permits will not be required for those narrowly defined activi- ties that cause little or no adverse effects either in- dividually or cumulatively. While it is understood that some of these activities may necessarily result in incidental filling and minor harm to aquatic re- sources, the exemptions do not apply to discharges that convert extensive areas of water into dry land or impede circulation or reduce the reach or size of the water body. 3 Legislatiwe History of the Clean Water Act of 1977 (“Leg.Hist.”) at 474 (Senate Debate, Dec. 15, 1977). As the legislation’s primary sponsor, his remarks are entitled to substantial weight. See Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976); Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229, 1243 & n. 48 (D.C.Cir.1980). To be exempt from the permit requirements, one must demonstrate that proposed activities both satisfy the re- quirements of §(f)(1) and avoid the exception to the ex- emptions (referred to as the ‘‘recapture’’ provision) of § (f)(2). See Avoyelles, 715 F.2d at 926 ((f)(2) takes away some of the exemptions provided in (f)(1)). Akers must establish that his activities are exempt. B-10 ANALYSIS (1) The ‘‘Normal Farming’’ Exemption: § 1344(f)(1)(A) [1] The court rejected this exemption because the wetlands portion of Akers’ farm “has never been subjected to any established upland farming operation,” relying on 33 C.F.R. §323.4(a)(1)(ii) (1985). That regulation pro- vides in pertinent part: To fall under this exemption, the activities . . . must be part of an established (i.e., on-going) farming silvicul- ture, or ranching operation. Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation. Activities which bring an area into farming, silviculture, or ranching use are not part of an established operation. An oper- ation 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 hydro- logical regime are necessary to resume operations... . Akers bases his entitlement to the exemption on the fact that all of his land, including the wetlands, has been farmed since 1897. He contends that discing and seeding have been part of the farming operation traditionally un- dertaken on his land. He ignores the consequences of the new projects, how- ever. We cannct view Akers’ plowing, discing and seeding in isolation. The record amply supports the court’s find- ing that upland crop production has not occurred on these wetlands on a regular basis. Upland farming represents a new operation in the wetlands. Moreover, Akers argued below that unless he were al- lowed to complete the work he had started, the effect of Le a — ee i ee ee lL! CL é B-11 which is to drain the wetlands, he would be unable to en- gage in the farming activities he had planned. By his own admission, his activities require substantial hydrological alteration to Big Swamp, and run afoul of the regulations. At oral argument, counsel for the government advo- cated a position of complete authority to prohibit all changes in wetland use which involve discharges of pollu- tants without prior Corps approval. Discing of soil is a point source of pollutants, according to the Corps. Besponding to our inquiries, government counsel as- serted that the Corps would require Akers, and other farmers like him, to obtain a § 404 permit before switching from one type of wetland crop to another, if the new crop had not been farmed previously. For example, if Akers desired to plant wild rice, a wetland crop, the Corps would require a permit since rice has not been farmed in Big Swamp in the past. Although we affirm the injunction as a reasonable response to the peculiar facts before us, we do not endorse the government’s authoritative position. We do not believe that Congress intended to place the burden of Corps permit regulation on farmers who desire merely to change from one wetland crop to another. (2) The ‘‘Irrigation’’ Exemption: § 1344(f)(1)(C) The court rejected Akers’ attempt to characterize the three-mile long dike bisecting the wetlands as an exempt irrigation facility. He argues that non-exempt dikes hold water on their lowland sides while exempt structures, such as his dike, hold water on their upland sides. B-12 [2} It is irrelevant how he characterizes the dike. Provided the structure has the effect of keeping water from the southern wetlands, its construction requires a permit. See Huebner, 752 F.2d at 1242. The regulation defining ‘‘minor drainage,’’ as that term is used in the ‘‘normal farming’’ exemption, supports the government’s position : Minor drainage in waters of the U.S. is limited to drainage within areas that are part of an established farming or silviculture operation. It does not include drainage associated with the immediate or gradual conversion of a wetland to a non-wetland (e.g., wet- land species to upland species not typically adapted to life in saturated soil conditions), or conversion from one wetland use to another (1 for example, silvi- culture to farming). In addition, minor drainage does not include the construction of any canal, ditch, dike or other waterway or structure which drains or other- wise significantly modifies a stream, lake, swamp, bog or any other wetland or aquatic area constituting wa- ters of the United States. Any discharge of dredged or fill material into the waters of the United States incidental to the construction of any such structure or waterway requires a permit. 33 C.F.R. § 323.4(a)(1)(iii)(C)(2) (1985). Akers also argues that the dike is physically connected and functionally related to an irrigation ditch and, there- fore, is exempt under 33 C.F.R. § 323.4(a)(3) (1985): Discharges associated with siphons, pumps, head- gates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this ex- emption. B-13 The court concluded that the dike was not one of the types of structures specified in the regulation and was not subsidiary to an irrigation ditch. Akers has not demon- strated that these factual findings are clearly erroneous.’ (3) The State Water Rights Proviso: 33 U.S.C. § 1251(g) Akers asserts that the court construed 33 U.S.C. §1251(g) (1982) (also known as the ‘‘Wallop Amend- ment’’) too narrowly by rendering his state-allocated wa- ter rights ‘‘virtually meaningless.’’ He urges us to apply the irrigation exemption ‘‘so as to not impair or abrogate state allocated water rights.’’ Section 1251(g) provides: It is the policy of Congress that the authority of each State to allocate quantities of water within its juris- diction shall not be superseded, abrogated or other- wise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be con- strued to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to pre- vent, reduce and eliminate pollution in concert with programs for managing water resources. 3. Akers also contends that the court ignored the fact that flood flows caused a breach in the dike and that he intended to place culverts in it. The court rejected these developments as irrelevant. It pr focused on the probable conse- quences of what had completed to the time of the hear- ing on the motion for preliminary injunction. B-14 Akers attacks the ‘‘ambiguous’’ references to legisla- tive history relied on by the district court when it refused to apply §1251(g). Senator Wallop, who sponsored the amendment, described its purpose during Senate debate: The requirements of section 402 and 404 permits may incidentally affect individual water rights. ... It is not the purpose of this amendment to prohibit those incidental effects. It is the purpose of this amend- ment to insure that State allocation systems are not subverted, and that effects on individual rights, if any, are prompted by legitimate and necessary water qual- ity considerations. This amendment is an attempt to recognize the historic allocation rights contained in State constitutions. It is designed to protect historic rights from mischievous abrogation by those who would use an act, designed solely to protect water quality and wetlands, for other purposes. It does not interfere with the legitimate purposes for which the act was designed. 3 Leg.Hist. 532 (Senate Debate, Dec. 15, 1977). [3] As intervenor Audubon points out, any inciden- tal effect on Akers’ rights to state-allocated water from the Pit River is justified because protection of Big Swamp is the type of legitimate purpose for which the Act was intended. In Riverside Irrigation District v. Andrews, 758 F.2d 508, 513 (10th Cir.1985), the Tenth Circuit construed the Wallop Amendment as an indication ‘that Congress did not want to interfere any more than necesssary with state water management.’ National Wildlife Federation v. Gorsuch, 693 F.2d 156, 178 (D.C.Cir.1982). A fair reading of the statute as a whole makes clear that, where both the state’s interest B-15 in allocating water and the federal government’s in- terest in protecting the environment are implicated, Congress intended an accommodation. Such accom- modations are best reached in the individual permit process. Akers staunchly has resisted the permit process. The injunction properly compels him to participate in it. (4) The ‘‘Roadbuilding’’ Exemption: § 1344(f) (1) (E) [4] Akers disagrees with the court’s findings that he constructed a road across overflow channels of the Pit River and failed to comply with best management prac- tices. Rather than challenging these findings as clearly erroneous, he asserts that the injunction is overbroad. He contends that instead of enjoining all roadbuilding, the ap- propriate remedy ‘‘was simply to notify him as to what actions were necessary to bring the road into conformity with best management practices, and require compliance therewith in future activities.’’ We disagree. The roadbuilding regulations set forth in 33 C.F.R. § 323.4(a)(6) (1985) describe with sufficient clarity what Akers had to do to comply with § 1344(f)(1)(E). As ex- plained in the overbreadth section below, the court pro- perly considered Akers’ misunderstanding and disregard of the Act in fashioning appropriate relief. (5) The ‘‘Recapture’’ Provision: § 1344(f)(2) Judge Ramirez concluded that Akers was unlikely to avoid the recapture provision even if he established an applicable exemption. Over Akers’ argument that upland crops could have been grown in the wetlands, the court wrote: B-16 The proper inquiry is not what could have been done but what was done in the past and its relationship to what Mr. Akers is attempting to do now. Further- more, Mr. Aker’s [sic] argument ignores the question of whether there will be a change in Big Swamp from wetlands (i.e.; waters of the United States) to dry land (no longer waters of the United States). Whether or not there have been isolated incidents of attempted farming of upland crops in the swamp during dryer periods, there is little doubt that the area is still a wetland within the meaning of the Clean Water Act. Mr. Akers’ activities taken as a whole appear to this Court to be incidental to an effort to convert the area so that it may be farmed in a way which is incon- sistent with its remaining a wetland. United States v. Akers, No. CIV-84-1276 RAR, Conclu- sion of Law XIV (E.D.Cal. Jan. 15, 1985). The court did not abuse its discretion in reaching this conclusion. Additionally, Akers asserts that ‘‘use’’ denotes a ma- jor type of use, e.g., farming, silviculture or ranching. Be- cause the land has been used for farming since 1897, he claims there is no major change of use within the meaning of § (f) (2). He attempts to distinguish Huebner and Avoyelies, where the recapture provision was applied. He asserts that those cases involved major changes to agricultural use, whereas his actions represent ‘‘a change within the farming use.’’ However, he cannot escape the impact of B-17 these opinions, which classify as non-exempt those activ- ities which change a wetland’s hydrological regime. See Huebner, 752 F.2d at 1242; Avoyelles, 715 F.2d at 926.4 While the exemptions and regulations do not dis- tinguish major and minor changes, the intent of Congress in enacting the Act was to prevent conversion of wetlands to dry lands. For example, Representative Harsha, a mem- ber of the conference committee, stated during House debate: To assure that the extent of these exempted activities will not be misconstrued, . . . (f)(2) provide[s] com- mon sense limitations to protect the chemical, biolog- ical, and physical integrity of the Nation’s waters. While it is understood that some of these activities may necessarily result in incidental filling and insig- nificant harm to aquatic resources, the exemptions do not apply to discharges that convert more exten- sive areas of water into dry land or impede circula- tion or reduce the reach or size of the water body. 3 Leg.Hist. 420 (House Debate, Dec. 15, 1977). It is thus the substantiality of the impact on the wet- land that must be considered in evaluating the reach of § (f)(2). Cf. Huebner, 752 F.2d at 1242 (district court properly considered results of dredging as it affected sur- rounding wetlands). The court’s findings on wetland con- version, not clearly erroneous, establish: It appears likely that if this work is allowed to remain in place, or allowed to be expanded, an extensive area 4. Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 646-47 (Sth Cir.1983), relied on by appellant, is distinguishable be- cause no change in wetland hydrological regime was proposed. “The wetlands involved here will not be converted as in Avoyelles,” wrote that court. Id. at 647. B-18 of the Big Swamp wetlands will be converted to non- wetiand, thereby significantly reducing the reach of | Big Swamp. In addition, the flow and circulation in Ash Creek and the overflow channels of the Pit River may be impaired. Furthermore, many highly signifi- cant aquatic functions now performed by the Big Swamp wetlands area will be lost or impaired. United States v. Akers, Finding of Fact X. [5] Giving the recapture provision the appropriate common sense reading, it appears that Akers’ activities are not exempt from permit requirements due to the like- ly drying effect. As discussed earlier, this is not to say that he could not change from one wetland crop to another without running afoul of the recapture provision. (6) Is the Injunction Overbroad? Finally, he argues that the injunction is overbroad be- cause it requires Corps approval for all his dredge and fiil activ:i._~s, including those clearly exempt. The government responds by stating that the conditions are necessary to preserve the status quo. The government stresses the non- onerous nature of this injunction, considering the require- ment that the Corps respond to a permit application within 15 days. [6] The district court has considerable discretion to fashion appropriate injunctive relief, particularly where the public interest is involved. See Virginian Railway Co. v. System Federation No. 40, etc., 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937) ; State of California v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1324 (9th Cir.) (district court has greater power to fashion equitable re- lief in defense of the public interest than it has when only private interests are involved), amended, 775 F.2d 998 B-19 (9th Cir.1985). The Supreme Court has recognized that the Act gives the district court discretion ‘‘to order that relief it considers necessary to secure prompt compliance with the Act.’’ Weinberger v. Romero-Barcelo, 456 U.S. at 320, 102 S.Ct. at 1807. In enjoining the filling of wetlands without a permit, courts have noted that the public interest requires strict enforcement of the Act to effectuate its purpose of pro- tecting sensitive aquatic environments. See United States v. Ciampitti, 583 F.Supp. 483, 499 (D.N.J.1984); United States v. Lofgren, 13 Envtl.L.Rep. (Envtl.L.Inst.) 20,164 at 20,166 (H.D. Mich. 1982) (presumption in favor of pre- liminary injunction in light of Act’s objectives which in- clude maintaining Corps’s regulatory scheme) (discussed in W. Want, Federal Wetlands Laws The Cases and the Problems, 8 Harv.Envtl.L.Rev. 1, 52 (1984)). [7] Judge Ramirez did not abuse his discretion in issuing this injunction. He considered extensive testimony regarding past and present uses of Big Swamp, ecological disruption caused by the ongoing and proposed activities, Akers’ avoidance of the Corps’s permit process, harm in- curred by Akers, and the legislative history of the exemp- tions. The findings and conclusions supporting the injunc- tion are comprehensive and reflect a well-balanced consid- eration of the competing interests. CONCLUSION Akers has failed to demonstrate that the injunction was based on erroneous legal standards or clearly er- roneous findings of fact. Nor does he demonstrate that Judge Ramirez abused his discretion. B-20 We are mindful of the plight of today’s farmers. So was Congress when it enacted the wetlands legislation at issue here. It did not intend to prohibit all changes of wet- lands, however minor, without prior Corps approval. The changes proposed by Akers are far from minor, however. They contemplate a major conversion from wet- lands to dry lands, thereby necessitating a Corps permit. Judicial review of Corps permit approval or denial pro- vides the necessary check against arbitrary government action. We assume that the Corps will not act arbitrarily when it rules on Akers’ future permit applications. This litigation resulted from an inability to work cooperatively. Both parties bear some fault for the break- down in communications. Reasonableness and coopera- tion are indicated. The preliminary injunction is AF- FIRMED. 5. Intervenor Audubon’s request for attorney’s fees on appeal is denied. Counsel has not identified any basis for such an award, and we find none. The motion for intervention pur- suant to 33 U.S.C. § 1365, where fees are provided, was de- nied. Instead, Judge Ramirez granted permissive intervention under Fed.R.Civ. P 24(b). C-1 APPENDIX © IN 'THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA NO. CIV.S-84-1276 RAR UNITED STATES OF AMERICA, Plaintiff, v. ROBERT W. AKERS, Defendant. FINDINGS OF FACT AND CONCLUSIONS OF LAW; ORDER GRANTING PRELIMINARY INJUNCTION (Filed January 15, 1985) The motion of plaintiff, UNITED STATES OF AMERICA, for a preliminary injunction came on regularly for hearing before the undersigned on October 24, 1984. John Wittenborn, Special Assistant United States Attor- ney, and Geoffrey Worstell, Esq., of the United States Army Corps of Engineers, appeared on behalf of plaintiff, UNIT- ED STATES OF AMERICA. Lanny T. Winberry, Esq., appeared on behalf of defendant, ROBERT W. AKERS. Having considered the voluminous pleadings, declarations and exhibits filed in support of and in opposition to the motion, the arguments of respective counsel, the proposed findings of fact and conclusions of law, as well as the ob- jections and counter-proposed findings of fact and conclu- sions of law, the Court now issues the following Findings C-2 of Fact and Conclusions of Law and Order Granting Pre- liminary Injunction pursuant to Rule 52 and Rule 65, Federal Rules of Civil Procedure. FINDINGS OF FACT The evidence before the Court shows that Mr. Akers is the owner of certain real property he acquired in the early part of 1984, consisting of approximately 9,600 acres lo- cated partly in Modoc County and partly in Lassen County, California. The Army Corps of Engineers has determined that between one-fourth and one-third of the acreage, to wit, 2,889 acres known locally as the Big Swamp, is wetlands acreage subject to Corps regulation under the Clean Water Act, 22 U.S.C. § 1251, et seq. The District Engineer has also found that the primary agricultural activity in this area has been the haying of native vegetation. II The present lawsuit does not represent the first time that the ongoing controversy between Mr. Akers and the Corps of Engineers has been before this Court. The Court can and does take judicial notice of the case file relating to a prior lawsuit filed by Mr. Akers on May 4, 1984, entitled Akers v. United States, et al., Civ.S-84-0598 RAR. The prior lawsuit arose after Mr. Akers developed a farming plan for his property which, in effect, provided for the leveling and filling of the Big Swamp area and diversion of the waters which normally feed it. The Corps of En- gineers advised Mr. Akers that he needed a permit for the proposed work, pursuant to § 404 of the Clean Water Act, 33 U.S.C. § 1244. 0-3 peat Mr. Akers rejected the Corps’ position and filed his lawsuit, in which he sought injunctive relief to preclude the Corps from exercising regulatory jurisdiction over his land or project. After a full hearing on May 15, 1984, this Court denied Mr. Akers’ motion for a preliminary injunc- tion. The Court determined that Mr. Akers had established no likelihood of success on the merits. It also found that he had failed to demonstrate a possibility or probability of irreparable harm, as opposed to monetary injury, and had likewise failed to establish a balance of hardships tip- ping sharply in his favor and/or serious questions for liti- gation. Thereafter, Mr. Akers dismissed his lawsuit vol- untarily. IV Prior to the volntary dismissal of Akers’ suit, the Corps had entered into a contract with the U.S. Army Corps of Engineers Waterways Experiment Station (WES) for an extensive study and determination of the extent and boundaries of the naturally occurring wetlands on the Akers’ property, and for an investigation and re- port on the nature and extent of past agricultural prac- tices on the iand. On August 30, 1984, Col. Arthur Wil- liams, District Engineer, Sacramento District, notified Mr. Akers by letter that he had determined that the lend in- cluded 2,889 acres of wetlands subject to regulation under the Clean Water Act. He also notified Mr. Akers that the proposed farming plan was not exempt from the permit requirements of the Clean Water Act on the basis of the historical farming practices. 0-4 V The wetland determination made by WES and adopt- ed by Col. Williams was based upon an extensive analysis of vegetation, hydrology and soils and resulted from the study of maps, photographs and nine days of actual on- site investigation. Indeed, Dana Sanders states in his declaration that the wetland report of the Waterways Ex- periment Station (WES) was based on more technical data than is available in more than 99 percent of all wet- land determinations ever made by the Corps of Engineers. Furthermore, the defendant himself conceded for pur- poses of the preliminary injunction hearing only that wet- lands regulated by the Corps under the Clean Water Act do exist on his property. VI During the course of its investigation of Mr. Akers’ activities and its assessments of his future plans, the Corps consulted with the United States Environmental Protec. tion Agency (EPA) concerning the application of § 404(f) of the Clean Water Act. EPA concurred in the Corps’ conclusion that the proposed dredging and construction work on Mr. Akers’ property was not exempt from § 404 permit requirements. vil In late July, the Corps issued a cease and desist or- der to stop Mr. Akers from building a dike across the western portion of the wetland. Relying on Mr. Akers’ attorney’s representation that Mr. Akers was merely re- constructing an existing dike, the Corps withdrew its cease C-5 and desist order. In September 1984, the Corps investi- gated reports that earth-moving activities were being con- ducted on Mr. Akers’ property in Big Swamp. The Corps’ aerial inspections confirmed the on-going construction of an earthen dike, running east-west the length of the wet- lands, dividing them roughly in half, as well as other ac- tivities, as described more fully below. On September 13, 1984, the Corps issued a cease and desist order to Mr. Akers. The cease and desist order did not mention channels of the Pit River. Nevertheless, Mr. Akers con- tinued to fill in channels of Ash Creek on the east side of his land, apparently based upon his own interpretations of the exemptions to the Clean Water Act. vill There is persuasive evidence that Mr. Akers or his agents have recently engaged in the following earth-moving activities in Big Swamp, to wit: (1) the construction of an east-west dike, now approximately three miles long, which bisects the wetland; (2) the leveling of portions of the wetland area south of the east-west dike, including the filling of certain Ash Creek channels by use of discing equipment; (3) construction of a road across the north- west portion of his property which blocks several over- flow channels of the Pit River; and (4) construction of a large ditch and the filling of several Ash Creek channels on the east side of the property. Heevy earth-moving equipment was used to dise and scrape wetland soil from wide swathes on either side of the three mile dike. The soil was then used to construct the three mile dike. Va- rious sections of the southern wetlands were disced with farm equipment. Prior to the discing, the areas were ripped with a chisel plow (or ‘‘ripper’’) which was used 0-6 to slice through the soil so that the discing would more effectively pulverize the soil. Ix The road in the northwest portion of the property has not been culverted, bridged or otherwise designed so as to prevent restriction of flood flows; in fact, it closes overflow channels of the Pit River. The three mile east- west dike and the dikes and ditches running north to south at either end of the three mile dike may, if not broken or dismantled, prevent the natural flow of water to the south- ern wetlands, causing them to dry up. x It appears likely that if this work is allowed to re- main in place, or allowed to be expanded, an extensive area o1 the Big Swamp wetlands will be converted to non- wetland, thereby significantly reducing the reach of Big Swamp. In addition, the flow and circulation in Ash Creek and the overflow channels of the Pit River may be impaired. Furthermore, many highly significant aquatic functions now performed by the Big Swamp wetlands area will be lost or impaired. XI Mr. Akers does not have, and has not applied for, a § 404 Clean Water Act permit from the Corps of Engineers for any work on his property. XI The government has submitted evidence to establish that the Big Swamp is considered an important waterfowl C-7 wintering area and that it attracts significant numbers of waterfowl in the spring and summer months for nesting and staging activities. Bald eagles and peregrine falcons, both federally listed endangered species, are known to occur in the area, as are golden eagles, which are federal- ly listed as rare species. Cackling geese, whose num- bers in California have dwindled seriously in recent years, use the Big Swamp as a staging area in the spring. More common waterfowl species also use and inhabit the Big Swamp in large numbers. XII The defendant asks this Court to look at each of his earth-moving activities individually, rather than to scruti- nize the overall cumulative impact of his activities. But this Court does not agree with either the proposed method- ology or the conclusion to which the defendant contends it should lead. Moreover, although Mr. Akers had con- tended that his recent work is only intended to be an in- tensification of his past farming activities, experts and others who have witnessed his work and assessed its ef- fects, have persuaded this Court that the work will subject his property to new uses potentially detrimental to the Waters of the United States. XIV This Court finds that Mr. Akers has either misunder- stood or callously disregarded the potential environmental consequences of his activities. The evidence supports an inference that Mr. Akers’ activities, if not enjoined, will have the effect of splitting the Big Swamp into northern C-8 and southern halves, with the potential eventual effect of drying up the southern portion. Unless Mr. Akers has a different plan not disclosed to this Court, it appears that he intends this effect in order to pursue new and pre- viously untried agricultural activities in the Big Swamp area. XV Although the defendant contends vigorously that iso- lated instances of farming of upland crops has taken place during the past decades in various sectors of his land, he has not persuasively disputed the Corps’ contention that the only established farming operation in the wetland por- tion of his land prior to his recent construction work was the haying of native wetland grasses. The record also supports the Corps’ finding that the ongoing irrigation practices on the land consisted of the use of temporary low spreader dams placed annually in various channels on his property to spread water more evenly over the acreage. XVI The United States filed suit against Mr. Akers on Oc- tober 3, 1984, seeking permanent injunctive relief, restora- tion of the property to its natural condition and civil pen- alties. The government also sought temporary and pre- liminary injunctive relief to restrain Mr. Akers from de- positing dredged or fili material into the wetlands and channels on his land during the pendency of this lawsuit, alleging that utherwise the wildlife, plant life and hydro- logical regime in the area would be threatened with irrep- arable injury. 0-9 XVII The government’s application for a temporary re- straining order (hereinafter ‘‘TRO’’) was heard and granted on October 6, 1984. Mr. Akers was restrained from discharging dredged or fill material into the waters on his property unless and until he invited the Corps to determine, and the Corps did determine, which waters he could work in without a permit. Waters are not subject to Corps regulations if they are not ‘‘waters of the United States’’ within the meaning of the Clean Water Act. XVIII The United States now seeks a preliminary injunction to extend the application of the prohibitory provisions of the restraining order throughout the pendency of this law- suit. The Court is persuaded by the government’s argu- ments in reaching its decision to issue the preliminary in- junction. The findings now made by this Court regarding plaintiff’s preliminary injunction motion necessarily fol- low closely the findings set forth in the temporary re- straining order, since the same standard and facts are involved. Due to the extensive briefing by both sides since the hearing regarding the TRO, however, the Court now has a much clearer and more detailed understanding of the facts underlying this dispute and the manner in which counsel for both sides view and interpret the law. Therefore, the Court now has the opportunity and ability to make these detailed findings of fact and to set forth the following conclusions of law. C-10 CONCLUSIONS OF LAW I To establish its right to a preliminary injunction, the moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and possibility of irreparable injury or (2) that serious ques- tions are raised and the balance of hardships tips sharply in its favor. These are not separate tests, but the outer reaches ‘‘of a single continuum.’’ Los Angeles Memorial Coliseum Com’s v. National Football League, 634 F.2d 1197 (9th Cir. 1980). Il The plaintiff has established a strong likelihood of success on the merits of its claims under the Clean Water Act, 33 U.S.C. § 1251, et seq. Itt The objective of the Clean Water Act is to restore and maintain the physical, chemical, and biological integrity of the nation’s waters. 33 U.S.C. § 1251(a). IV Subject to certain exemptions, §4 301 and 404 of the Clean Water Act, 33 U.S.C. §4 1311 and i344, prohibit the discharge of dredged or fill material from point sources into the waters of the United States without a permit from the Corps of Engineers. By defining the term ‘‘navigable waters’’ in the Clean Water Act to mean ‘‘the Waters of C-11 the United States, including the territorial seas,”’ 33 U.S.C. § 1362(7), Congress intended to assert federal jur- isdiction over the nation’s water ‘‘to the maximum extent permissible under the Commerce Clause of the Constitu- tion.’’ Natural Resources Defense Council v. Callaway, 392 F.Supp. 685 (D.D.C. 1975) ; Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-756 (9th Cir. 1978); Utah v. Marsh, 740 F.2d 799, 802-804 (10th Cir. 1984); Avoyelles Sport- men’s League v. Marsh, 715 F.2d 897, 914-916 (5th Cir. 1983); United States v. Byrd, 609 F.2d 1204, 1209-1211 (7th Cir. 1978). The term specifically includes adjacent wetlands. 33 C.F.R. § 323.2. Avoyelles, supra; Byrd, supra. This Court concludes that plaintiff has established a strong likelihood that a substantial portion of the property in ques- tion constitutes waters of the United States subject to the Clean Water Act. V The construction of the dikes, road, ditches, and chan- nel fills, and possibly some of the discing (to the extent it may level that land so as to fill channels or convert wet- lands to uplands) involve the discharge of dredged or fill material. .The heavy equipment used to move and deposit the earth are point sources. Avoyelles Sportman’s League v. Marsh, supra. Vi The defendant contends that his recent activities fall within any of several exemptions to the permit require- ment set forth in §404(f)(1) of the Clean Water Act, 33 U.S.C. § 1344(f). Mr. Akers bears the burden of estab- lishing that his activities are all exempt. United States v. Frezzo Bros., Inc., 546 F.Supp. 713 (E.D. Penn. 1980), 0-12 appeal after remand, 703 F.2d 62 (3rd Cir. 1983). The general rule requires the one claiming the benefits of an exception to the prohibition of a statute to establish the. applicability of the statutory exception. U.S. First City National Bank of Houston, 386 U.S. 361, 366, 87 8.Ct. 1088, 1092 (1967). The Court finds a strong likelihood thut Mr. Akers will not be able to do so. Vil Section 404(f)(1) states that: Except as provided in paragraph (2) of this subsec- tion, the discharge of dredged or fill materiai [from activities specified in (A) through (F)] is not pro- hibited by or otherwise subject to regulation under this section or section 301(a) or 402 of this Act (ex- cept for effluent standards or prohibitions wader Sec- tion 307). The specific exemptions follow. But the 404(f)(1) exemp- tions are limited by § 404(f)(2), commonly referred to as the ‘‘recapture provision.’’ which provides: Any discharge of dredged or fill material into the nav- igable 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. Thus, in order to be exempt from regulation, a discharge must not only fall within ¢ 404(f)(1), but must also escape recapture under § 404(f) (2). Vill The legislative history of the 1977 Amendments to the Clean Water Act evidences a strong Congressional intent C-13 to limit the scope of the ¢ 404(f)(1) exemptions. As Sena- tor Muskie, sponsor of the legislation explained, ‘‘New subsection 404(f) provides that Federal permits will not be required for those narrowly defined activities that cause little or no adverse effects either individually or cumula- tively.’’ 3 Leg. Hist. 474 (emphasis added). See also statements by Rep. Harsha, id. at 420, and Senator Wal-. lop, id. at 530. The numerous statements in the legisla- tive history concerning what § 404 does not exempt are also telling. For example, Senator Muskie explained, ‘‘[T]he exemptions do not apply to discharges that convert exten- sive areas of water to dry land or impede circulation or reduce the reach or size of the water body.’’ 3 Leg. Hist. 474; see also statement of Senator Baker, id. at 523. As Senator Stafford stated, ‘‘[PJermits will continue to be required for those farm, forestry, and mining activities that involve the discharge of dredged or fill material that connect [sic—presumably intended to be ‘‘convert’’] wa- ter to dry land including, for example, those occasional farm or forestry activities that involve dikes, levees or other fills in wetland or other waters.’’ 3 Leg. Hist. 485. See also, Senate Report, 4 Leg. Hist. 710 (permit review necessary for discharges to convert a hardwood swamp to another use through dikes or drainage channels). Ix The defendant attempts first and foremost to rely upon the exemption set forth in § 404(f)(1)(A) which ap- plies to the discharge of dredged or fill material: from normal farming, silviculture, and ranching ac- tivities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, C-14 and forest products or upland soil and water conserva- tion practices ... Defendant contends that because his recent activities are related to his intentions to farm crops, they are exempt as ‘‘normal farming’’ activities. x Defendant’s contention is patently incorrect. The ex- emption for ‘‘normal farming’’ applies only to activities which are: part of an established (i.e., on-going) farming, silvi- culture, or ranching operation. Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation. Activities bring- ing an area into farming, silviculture, or ranching use are not part of an established operation. An opera- tion 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 hydro- logical regime are necessary to resume operations. 33 C.F.R. § 323.4(a) (1) (ii). The plaintift has amply demonstrated that the area of the Big Swamp has never been subjected to any established upland farming operation. Accordingly, defendant’s pro- posed farming plans with its extensive diking and ditch- ing is not within the scope of the ‘‘normal farming’’ ex- emption. xt Defendant has failed to show that his dike and road- building activities are either enumerated in § 404(f) (1) (A) or are similar in nature to those listed. Indeed, as the statement of Senator Stafford cited above indicates, dikes C-15 and levees in wetlands are not exempt. See also, 33 C.F.R. § 323.4(a) (1) (iii) (C) (2). XII The plaintiff has offered ample evidence to prove that the recent work has significantly modified the hydrological regime in the wetlands area, and the defendant himself has consistently argued that unless he is allowed to complete the work he has started, he will be unable to engage in the farming activities he plans. By his own admission, there- fore, defendant’s proposed work is not part of an ‘‘ongo- ing’’ or ‘‘established’’ farming practice. Indeed, it ap- pears that major hydrologic modifications will be re- quired fex defendant’s farming plan to succeed. Conse- quently, the defendant is unlikely to establish that his ac- tivities fall within the exemptions for ‘‘normal farming.’’ Xiil Even if Mr. Aker’s activities did fall within the ‘‘ner- mal farming’’ exception of § 404(f)(1)(A), they would remain subject to permit requirements under the excep- tion to the exemption contained in subsection (f)(2). Read together, these two subparagraphs of 4 404(f) provide a narrow exemption for agricultural and silvicultural activ- ities that have little or no adverse effect on the nation’s waters. Avoyelles Sportmen’s League, Inc. v. Marsh, 715 F.2d 897, 926 (5th Cir. 1983). It is clear that Mr. Akers’ activities are bringing the southern wetlands into a use to which they have not previously been subject, and which is resulting in an impairment of water flow and circulation as well as a reduction of the wetlands’ reach. C-16 xIV Mr. Akers argues that his activities will not bring Big Swamp into a use to which it was not previously sub- ject, on the ground that upland crops could have been grown there, whether or not they actually were. This Court declines to adopt such a strained interpretation of the term ‘‘subject to’’ in § 404(f)(2). The proper inquiry is not what could have been done but what was done in the past and its relationship to what Mr. Akers is attempting to do now. Furthermore, Mr. Aker’s argument ignores the question of whether there will be a change in Big Swamp from wetlands (i.e., waters of the United States) to dry land (no longer waters of the United States). Whether or not there have been isolated incidents of at- tempted farming of upland crops in the swamp during dryer periods, there is little doubt that the area is still a wetland within the meaning of the Clean Water Act. Mr. Akers’ activities taken as a whole appear to this Court to be incidental to an effort to convert the area so that it may be farmed in a way which is inconsistent with its re- maining a wetland. XV Furthermore, § 404(f)(2) indicates that a permit is necessary even for discharges that are only ‘‘incidental to’’ an activity which is intended to or will foreseeably bring about the destruction of the wetland (or other change in use), where the reach of the waters will be re- duced or their flow or circulation impaired. In order to trigger § 404(f)(2), the discharges themselves need not be the sole cause of the change in use or impairment of reach, C-17 flow, or circulation. Therefore, this Court rejects defen- dant’s request that it look at each activity in isolation or assess their impacts individually. While this Court can- not look into the mind of Mr. Akers to discern his full in- tentions, the reasonably foreseeable consequence of his ac- tivities as a whole is the destruction of a significant wet- land. XVI Accordingly, plaintiff has established a probability of success on its claim that defendant’s recent activities are not encompassed within the reach of § 404(f)(1)(A) and, in any event, would fall within the subsection (f)(2) excep- tion to the (f)(1)(A) exception. XVII Defendant also argues that his activities are exempt under § 404(f)(1){C) which provides that a permit is not required for a discharge of dredged or fill material : for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the main- tenance of drainage ditches... . The primary problem with defendant’s attempt to invoke the irrigation ditch exemption is that his recent activities have not involved the construction of any irrigation ditch in the wetlands. Instead, his major structure is a dike ap- proximately three miles in length. Defendant nevertheless contends that his work, including his dike, constitutes ‘‘ir- rigation facilities’’ within the meaning of 33 C.F.R. § 323.4(a)(3) (1983) which provides in relevant part: Discharges associated with irrigation facilities in the waters of the United States are included within the exemption unless the discharges have the effect of C-18 bringing these waters into a use to which they were not previously subject and the flow or circulation may be impaired or reach reduced of such waters. Defendant’s proposed reading of the language of the regu- lation is obviously overbroad. The regulation cannot ex- pand the scope of the statutory exemption, and the statute exempts from permit requirements only stock ponds, irri- gation ditches, and the maintenance of drainage ditches. Obviously, then, the term ‘‘irrigation structures’’ as used in the interpretive regulation constitutes no more than a shorthand term for the activities set out at greater length in the statute. Moreover, defendant’s attempt to argue that a dike can be an “‘irrigation facility’’ within the meaning of 33 C.F.R. § 323.4(a)(3) is at direct odds with the language of the interpretive regulation defining ‘minor drainage’’ as that term is used in the ‘‘normal farming’’ exemption, § 404(f)(1)(A). That regulation 33 C.F.R. § 323.4(a)(1)(iii)(C)(2) provides in relevant part: In addition, minor drainage does not include the con- struction of any canal, ditch, dike or other waterway or structure which drains or otherwise significantly modifies a ... wetland or aquatic area constituting waters of the United States. Any discharge of dredged or fill material into the waters of the United States incidental to the construction of any such structure or waterway requires a permit. [Emphasis added] Indeed, the text of 33 C.F.R. § 323.4(a)(3) set forth above has just been changed in order to clarify ‘‘the types of ap- purtenant structures to irrigation facilities for which tlie discharges associated with such structures are exempt from the provisions of these regulations.’’ 49 F.R. 0-19 at 39479. The new text of the regulation was published in the Federal Register on October 5, 1984, and it confirms that ‘‘discharges associated with major dams and diversion projects and other large-scale facilities which are not sub- sidiary to irrigation ditches are clearly not included in the exemption.’’ Id. The complete new text of 33 C.F.R. § 323.4(a)(3) provides simply: Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance [but not con- struction] of drainage ditches. Discharges associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exemption. Defendant’s three mile dike is not one of the types of struc- tures specified in the new regulation and is clearly not sub- sidiary to any irrigation ditch. XVII Finally, even if defendant’s activities otherwise qual- ified for exemption under the ‘‘irrigation ditch’’ provis- ion, the exemption is further qualified by subsection (f)(2) which, as discussed above, subjects the defendant’s activities to permit requirements even if the (f)(1) exemp- tions apply. XIX Defendant also asserts that § 404(f)(1)(E) serves to exempt his road-building activity in the northwest area of his property, but the very text of the exemption belies his claim. Subsection (f)(1)(#) provides in relevant part that no permit is required for the discharge of dredged or fill material : C-20 for the purpose of construction or maintenance of farm roads ... where such roads 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 ad- verse effect on the aquatic environment will be other- wise minimized .... Defendant has neither claimed nor established that any attempt was made by him to minimize the adverse effects of his road construction and the result of his activity has been to block overflow channels of the Pit River, which feed the wetlands of his property. Xx These statutory criteria have been translated by regu- lation into a number of required best management prac- tices (BMP’s) which must be complied with for the ex- emption to apply. 33 C.F.R. § 323.4(a)(6). Among those BMP’s is a requirement that roads be culverted, bridged or otherwise designed to prevent restriction of flood flows. The evidence clearly indicates that Akers failed to comply with any such management practices. Accordingly, defendant has not demonstrated that his road is exempt under 404(f)(1)(E). XXI Moreover, the road construction exemption, like all the subsection (f)(1) exemptions, is further subject to the (f)(2) exception which requires a permit for defendant’s activities for the reasons discussed above. C-21 Defendant also argues that the Clean Water Act either constitutes an impermissible violation of his state water rights or that the Act automatically exempts activities which can be traced to the exercise of state water rights. This argument, as presented by counsel for defendant in his briefs and at oral argument, is meritless. Clearly, the Clean Water Act itself does not impermissibly violate state water rights. Moreover, any argument that a grant of state water rights somehow prevents the United States from asserting jurisdiction within its constitutional limits is obviously groundless. See United States v. Ciampitti, 583 F.Supp. 483, 495-96 (D.N.J. 1984). XX Nor does the Clean Water Act automatically exempt from regulation any activities which have some bearing on individual exercise of state-allocated water rights. As the legislative history of § 101(g) of the Act makes clear, The requirements of section 402 and 404 permits may incidentally affect individual water rights . . . It is not the purpose of this amendment to prohibit those inci- dental effects... It is designed to protect historic rights from mis- chievous abrogation by those who would use an act, designed solely to protect water quality and wetlands, for other purposes. It does not interfere with the legitimate purposes for which the act was designed. [Emphasis added] Statement of Senator Wallop (sponsor of § 101(g)), 3 Leg. Hist. 532. C-22 XXIV Having determined that the government is likely to prevail on the merits of its claim, the Court turns its atten- tion to the question of resulting injury. There is some authority for the proposition that the government need not even make a showing of irreparable injury in order to qual- ify for injunctive relief under the Clean Water Act. See, e.g., United States v. Ciampitti, supra, 585 F Supp. at 498, n.12. This Court need not grapple with the issue, however, because the government has clearly made a showing of ir- reparable injury in this case. XXV Wetlands serve a variety of on-going ecological and aesthetic functions, and the Big Swamp wetland is no ex- ception. They are particularly notable for their role in supporting migratory birds and in controlling erosion and protecting downstream water quality. In numerous de- clarations of hydrological and wetland experts, the United States has established that Mr. Akers’ recent earth-moving activities have already, at least temporarily, cut off the southern half of the wetlands on his property from their natural water sources. These recent activities as well as those which Mr. Akers could reasonably be expected to carry out during the pendency of this litigation if not en- joined, have disrupted and/or are likely to continue to dis- rupt significantly the ecological functions of Big Swamp. Disruption of those functions constitutes an irreparable injury to a valuable public resource. Should Mr. Akers continue his activities, including the leveling of his land through discing, the placement of fill material in channels C-23 and the construction of dikes and other structures, dam- age to the area will be compounded. XXVI Since the Court has determined that the United States is likely to prevail on the merits of its claims and has dem- onstrated the probability of irreparable injury if the pre- liminary injunction is denied, it remains only to be con- sidered whether the granting of the injunction will cause a balance of hardships tipping sharply in Mr. Akers’ favor. The Court finds that it will not. Mr. Akers claims that the injunction will cause him such financial damage that he ‘‘might’’ lose his property which ‘‘could conceivably’’ re- sult in bankruptcy. Such speculative statements fall far short of a showing of irreparabie injury. Furthermore, as this Court observed during the course of Mr. Akers’ prior related case, Mr. Akers either knew or should have known when he purchased the property that he might become in- volved in a regulatory dispute with the Corps of Engi- neers. His tactics in proceeding with the work without authorization have brought him to his current financial situation. Therefore, any injury is self-inflicted. The Court notes that had Mr. Akers applied for a permit at the conclusion of the prior case, the dispute might well have been resolved by now. XXVII To the extent that any of the foregoing Findings of Fact are deemed to be Conclusions of Law, or to the extent that any of the foregoing Conclusions of Law are deemed to be Findings of Fact, the same shall be deemed Conclus- ions of Law or Findings of Fact as the case may be. C-24 Therefore, IT IS HEREBY ORDERED that Mr. Akers, his agents, employees and all persons under his control and supervision, are restrained from engaging in any and all deposits of dredged or fill materiai into the waters on his property, including the wetlands previously delineated by the Corps of Engineers, as well as all channels, unless he: (1) Obtains a permit from the Corps of Engineers; or (2) Submits a proposal for dredge or fill activities, which he asserts are not within the Corps of Engineer’s regulatory jurisdiction, and (a) is informed in writing by the District Engineer that a permit is not necessary for the work he proposes ; or (b) is not informed in writing by the District En- gineer whether a permit is necessary for the work he proposes within fifteen (15) days of receipt of his proposal by the District Engineer (including weekends and holidays). Notwithstanding any provision of this Order, Mr. Akers shall comply in good faith with all lawful cease and desist orders issued to him by the Corps of Engineers with re- spect to dredge and fill activities on his property.' IThus, in the event that Mr. Akers submits a proposal for dredge and fill activities which he asserts are not within the Corps’ jurisdiction, to which the Corps does not respond in writing within fifteen (15) days, Mr. Akers may immediately begin work on the activities within his pro l. However, should a subsequent cease and desist order c the Corps of Engineers order him to halt work on these activities, Mr. Akers must comply with this and all other lawful orders of the Corps. C-25 - IT IS SO ORDERED. DATED: January 14, 1985. /s/ Raul A. Ramirez, Judge United States District Court --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2112%3A1. Public record. Not legal advice.