Petition for Writ of Certiorari — Cumberland Farms, Inc. v. United States
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r ae a Supreme Court, U.S.
Q7 -8 49 § | FILED
NOV 27 198
JOSEPH F. SPANIOL, JR,
No. - . CLERK
adeadiianiaaaall
In the
Supreme Court of the United States.
OCTOBER TERM, 1987.
CUMBERLAND FARMS, INC.,
PETITIONER,
Vi
UNITED STATES OF AMERICA,
RESPONDENT.
Petition for Writ of Certiorari to the United
States Court of Appeals for the
First Circuit.
ALLAN VAN GESTEL,
Counsel of Record,
GOODWIN, PROCTER & HOAR,
Exchange Place,
Boston, Massachusetts 02109.
(617) 570-1000
BATEMAN & SLADE. INC BOSTON, MASSACHUSETTS
In the courts below the defendant, appellant was referred
to as “Cumberland Farms of Connecticut, Inc.” By a corporate
reorganization effective September 30, 1984, Cumberland
Farms of Connecticut, Inc. was merged into Cumberland
Farms, Inc., the petitioner here. Cumberland Farms, Inc. is a
Delaware corporation privately held and has no parents, sub-
Sidiary or affiliate as designated in Supreme Court Rule 28.1.
Questions Presented for Review.
I. Whether the takings clause of the Fifth Amendment pro-
hibits the insistence by the United States Army Corps of En-
gineers that wetlands dredged and filled for agricultural pur-
poses without a permit in violation of § 404 of the Clean Water
Act first must be physically restored to their condition in July,
1977, and productive farmland thereby destroyed, before the
Corps of Engineers must accept, consider and act upon an
application for an after-the-fact permit?
II. Whether the takings clause of the Fifth Amendment pro-
hibits the issuance of an injunction by a United States District
Court which mandates that wetlands dredged and filled for
agricultural purposes without a permit in violation of § 404 of
the Clean Water Act first must be physically restored to their
condition in July, 1977, and productive farmland thereby de-
stroyed, before remanding the matter to the United States Army
Corps of Engineers with directions to accept, consider and act
upon an application for an after-the-fact permit?
Table of Contents.
Jurisdiction 2
Statutes and regulations involved 2
Statement of the case 2
Reasons for granting the writ 7
Conclusion 10
Appendices follows page 10
Table of Authorities Cited.
CASES.
Avoyelles Sportsmen’s League, Inc. v. Alexander, 511
F. Supp. 278 (W.D. La. 1981), aff’d in part, sub
nom. Avoyelles Sportsmen’s League, Inc. v. Marsh,
715 F.2d 897 (Sth Cir. 1983) 8
Natural Resources Defense Council, Inc. v. Callaway,
392 F. Supp. 685 (D.D.C. 1975) 8
San Diego Gas & Electric Co. v. City of San Diego, 450
U.S. 621 (1981) 9n
United States of America v. Cumberland Farms of Con-
necticut, Inc., 647 F. Supp. 1166 (D. Mass. 1986) 1, 2,
: 3, 4, 5, et seq.
United States of America v. Cumberland Farms of Con-
necticut, Inc., 826 F.2d 1151 (1st Cir. 1987) Pp oe
United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (1985) 7,9
Williamson County Regional Planning Commission v.
Hamilton Bank, 473 U.S. 172 (1985) On
il TABLE OF AUTHORITIES CITED.
FEDERAL STATUTES AND REGULATIONS.
28 U.S.C. § 1254(1)
28 U.S.C. § 1491
33 U.S.C. § 1344, § 404
33 C.F.R. § 330.3
33 C.F.R. § 326.4(c)
MISCELLANEOUS.
Torres, Wetlands and Agriculture: Environmental Reg-
ulation and the Limits of Private Property, 34 Kan.L.
Rev. 539 (1986)
No. -
In the
Supreme Court of the United States.
OCTOBER TERM, 1987.
CUMBERLAND FARMS, INC.,
PETITIONER,
V.
UNITED STATES OF AMERICA,
RESPONDENT.
Petition for Writ of Certiorari to the United
States Court of Appeals for the
First Circuit.
This petition flows from a decision by the United States
District Court for the District of Massachusetts captioned
United States of America v. Cumberland Farms of Connecticut,
Inc., reported at 647 F. Supp. 1166 (D. Mass. 1986) (set forth
in Appendix A), and affirmed by the United States Court of
Appeals for the First Circuit in an opinion bearing the same
caption reported at 826 F.2d 1151 (1st Cir. 1987) (set forth
in Appendix B). A petition for rehearing en banc was denied
by the Circuit Court on September 18, 1987.
2
Jurisdiction.
The judgment of the Court of Appeals was entered on August
18, 1987. This petition was filed within ninety days of that
date. The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
Statutes and Regulations Involved.
This petition involves the dredge and fill permit requirements
of § 404 of the Federal Clean Water Act, 33 U.S.C. § 1344,
and related regulations dealing with after-the-fact permit appli-
cations. Because of their length, the statute and regulations
are set forth in the Appendix hereto at 68a and 82a.
Statement of the Case.
On August 18, 1987 a panel of the First Circuit Court of
Appeals affirmed in its totality the rulings of the U.S. District
Court for Massachusetts (Hon. William G. Young) in this
complex case in which the Federal government sought civil
penalties and injunctive relief for violations of § 404 of the
Clean Water Act, 33 U.S.C. § 1344. United States v. Cumber-
land Farms of Connecticut, Inc., 826 F.2d 1151 (1st Cir.
1987) (see App. 39a). The extensive and detailed opinion of
the District Court appears at 647 F. Supp. 1166 (D. Mass.
1986) (see App. la).
While the petitioner is disappointed with a number of the
rulings affirmed by the Circuit Court, it presses here only one
which, it sincerely believes, has consequences that reach far
beyond the dispute between the parties.
At the beginning of his opinion, District Judge Young, quot-
ing Robert Frost, set a tone for the conflict before the court.
3
See 647 F. Supp. at 1168 (App. at 2a). After noting his duty
to balance the two enduring values of the needs of the present
and the dreams of the future he said:
[T]his case involves a test of what the nation has
learned in the last three hundred years. On the one
hand, Congress has signaled its desire to preserve
our wetlands, an intent now codified in rather sweep-
ing legislation, see 33 U.S.C. ch. 26, § 1251 et seq.,
and further codified in detailed and extensive regu-
lations administered by the United States Army
Corps of Engineers, see 33 C.F.R. ch. 11, § 320 et
seq. On the other hand, the Court takes judicial notice
that even in this industrial or post-industrial time,
this country as breadbasket of nations represents the
greatest agricultural success story in the history of
the world.
647 F. Supp. at 1168-69 (App. at 3a).
It is an aspect of the resolution of this conflict, aggravated
particularly by the Corps of Engineers’ dilatory and stumbling
application of its jurisdictional mandate, that forms the basis
for this petition. Cumberland Farms of Connecticut, Inc. is
not the only agricultural enterprise in Massachusetts ensnared
by the Corps’ deceptive inaction, now affirmed by the rulings
of the District and Circuit Courts. Cumberland has learned
» that several Massachusetts cranberry growers just recently have
received notices from the Federal government that their ac-
tivities in expanding their bogs have, since 1977, like Cumber-
land’s expansion of its cornfields, violated the dredge and fill
permit requirements of § 404 of the Clean Water Act. A copy
of one such notice is included in the appendix to this petition
(App. E at 84a).
4 :
A brief recitation of Cumberland’s history on the land in
question reveals the problem. Starting in 1972 and continuing
for five years until 1977 Cumberland drained nearly 1,000
acres of swampland and converted it to cornfields. 647 F.
Supp. at 1170 (App. at 6a-7a). As the District Court found,
this was an agricultural exercise practiced in Plymouth County,
Massachusetts, since the arrival of the colonists in 1620 —
and, in Cumberland’s situation, enjoying the support of the
Department of Agriculture of the U.S. government. /d. Until
July of 1977 it also was perfectly legal and required no permit.
In 1977, through the adoption of expanded regulations, the
Corps of Engineers was given responsibility for regulating
certain aspects of this kind of agricultural activity if it occurred
in wetlands. 647 F. Supp. at 1171 (App. at 8a-9a). Insofar as
Cumberland’s activities were concerned, and even more so for
its neighboring cranberry bog operators, the adoption of its reg-
ulations and affirmative action to enforce them by the Corps of
Engineers were hardly simultaneous. It was not for another six
years, until 1983, that the Corps first indicated to Cumberland
that it required a permit for its cornfield conversion project. 647
F. Supp. at 1172 (App. at 10a). By then Cumberland had been
involved in the project for eleven years.
The District and Circuit Courts have suggested that Cumber-
land’s ignorance of the 1977 law provides no excuse. This in
the face of the Corps’ own confession of uncertainty as to
whether it had or was asserting jurisdiction until December of
1984.
In sum, this Court finds that a year-and-a-half
after the initial report [in 1983] of alleged violations
of the Clean Water Act, so far as this record shows,
the Corps of Engineers had not yet determined
whether it had jurisdiction and no state regulation of
the area was in effect.
647 F. Supp. at 1173 (App. at 12a).
5
Moreover, the first time the Corps asserted jurisdic-
tion over the Great Cedar Swamp was by Colonel
Siple’s letter of December 28, 1984 to Cumberland.
647 F. Supp. at 1178 (App. at 24a).
Without the most extensive and careful analysis of
the background of the regulatory scheme, no reason-
able person in Cumberland’s position would con-
clude that he did not enjoy the protection of the
Unasserted Jurisdiction Permit, at least until De-
cember 28, 1984.
647 F. Supp. at 1184 (App. at 36a).
Despite this history, the District and Circuit Courts ruled
against Cumberland and set precedent against many others on
the issue of the Corps’ power to demand complete restoration
before even considering an after-the-fact permit. E.g., 826
F.2d at 1162-63 (App. at 61a). Under the best of circumstances
it makes little sense to allow, indeed by regulation to encour-
age, after-the-fact permit applications if, before the Corps will
consider them, the property must be restored to its original
state. What, then, if the permit is granted? A silly renvoi, with
a great waste of time, energy and resources.
Here, it is much worse. Cumberland was twelve years into
the project before the Corps finally determined that it had and
would assert jurisdiction — and only after first representing to
the District Court as late as September, 1983 that it had not yet
determined whether it was going to assert jurisdiction over the
property. 647 F. Supp. at 1173 (App. at 11a-12a). The Corps’
own inaction from July, 1977 to December, 1984, highlighted
as it was by the Corps’ representations to the Court in 1983,
makes clear that the “appropriate remedial work, if any,” called
for by 33 C.F.R. § 326.4(c) before consideration of an after-the-
-
6
fact permit application, was far less than complete restoration
of the area involved.
To leave matters as the lower courts have ruled seems as
inconsistent with logic as it is glaring in inequity, and it sets
a precedent that could seriously injure the Massachusetts cran-
berry industry, as well as other agricultural activities all across
the country. Even the trial court found itself constrained to
note the impropriety of the Corps’ action by declining to impose
any penalty for Cumberland’s activity prior to 1984. “The
Corps’ own opaque regulation, 33 C.F.R. § 330.3, so vitiates
any Claim of legal culpability on the part of Cumberland prior
to December 28, 1984 that this Court, as matter of discretion,
refrains from imposing any penalty for actions prior to that
date.” 647 F. Supp. at 1184 (App. at 35a).
Cumberland, and apparently many Massachusetts cranberry
growers, are to be held strictly accountable despite their ignor-
ance of the law, and be deprived of benefit because of their
similar lack of understanding of an “opaque” and facially con-
fusing regulation. At the same time, the creators of the confu-
sion, whose own actions led the local farming community to
proceed with some degree of comfort, are not even required
to review an after-the-fact permit request until the work which
would be performed if that permit is granted is first destroyed.
The permitee, if successful, would then be obliged to rebuild
his cornfields or cranberry bogs all over again. It is one thing
to condition consideration of an after-the-fact permit on the
taking of emergency steps to preserve the status quo. It is quite
another to insist upon destructive work that attempts to reverse
it. Destroying cornfields and cranberry bogs before deciding
whether they can ultimately be built seems hardly a sensible
application of the law.
7
Reasons for Granting the Writ.
In addition to the logical and practical absurdity of mandating
the destruction of valuable agricultural property before decid-
ing whether to permit its existence, the requirements of the
Corps of Engineers and the injunction of the District Court
run squarely into the prohibitions found in the takings clause
of the Fifth Amendment to the United States Constitution.
Unlike the putative constitutional problem presented in United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985),
the actions of the agency and the mandate of the court present
an actual constitutional violation. To destroy the cornfields in-
issue, and set a precedent which will permit the destruction
of agricultural land throughout the country, affects the taking
— but for two significant reasons the constitutionally mandated
compensation may not be available.
First, it requires no special knowledge or extensive citations
to suggest that the economic status of many of the nation’s
farmers is not strong. Thus, the very costs of destroying opera-
tive farmlands and the resulting deprivation of crops therefrom
during the period while the Corps of Engineers considers an
after-the-fact permit request will, in many instances, bankrupt
the parties subject to such a requirement. In effect, those parties
will never be able to exercise their constitutional right to com-
pensation for a taking because the very government against
whom that right is provided will have taken away their means
to do so. The effect will not only be unfair in the extreme to
the farmers to whom it applies, but could have a serious impact
on the rest of the nation which relies on the product of those
farms.
Second, in the instance here presented, the petitioner re-
quested the court, after determination of the jurisdictional ques-
tions, to remand the case to the agency for appropriate public
BEST AVAILABLE COPY
8
hearings and the consideration of an after-the-fact permit appli-
cation. Instead, the court has ordered, under the threat of a
substantial punitive fine and contempt, the destruction of the
productive farmland before any after-the-fact permit is consid-
ered.
It is far from clear that the law permits a claim against the
United States under the Tucker Act, 28 U.S.C. § 1491, or
under any other provision, when the action that causes the
“taking” comes about as a result of an order of a district court.
Even should a claim be available, a court should not be permit-
ted to engage in an activity that runs counter to a protection
provided in the Constitution.
The taking issue in the wetlands context assumes special
meaning when the government’s actions have a direct and
damaging effect on one of man’s most truly vital and necessary
activities, the cultivation and production of food products.
This case joins the issues between the desire to preserve wet-
lands and the absolute need to maintain the nation’s agricultural
institutions, as the trial judge so eloquently noted in his incan-
tation of Robert Frost at the start of his opinion. 647 F. Supp.
at 1168 (App. at 2a).
No farm can survive without water. It is, therefore, hardly
surprising that almost every farm in the country exists in or
near the “waters of the United States” as that phrase has come
to be interpreted under § 404 of the Clean Water Act and the
regulations-promulgated in connection therewith. See, e.g.,
Natural Resources Defense Council, Inc. v. Callaway, 392
F. Supp. 685, 686 (D.D.C. 1975); Avoyelles Sportsmen’ s
League, Inc. v. Alexander, 511 F. Supp. 278, 288 (W.D. La.
1981), aff’d in part and rev'd in part, sub nom. Avoyelles
Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (Sth Cir.
1983). “One of most vexing problems facing environmental
and land use regulations is the Fifth Amendment limitation
that government shall not take private property for a public
9
use without just compensation.” Torres, Wetlands and Agricul-
ture: Environmental Regulation and the Limits of Private Prop-
erty, 34 Kan.L.Rev. 539, 553 (1986).
The confusion that remains on the Fifth Amendment taking
issue in the wake of United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121 (1985) ' is faced squarely here. Paraphrasing
Justice White’s comments in Bayside, 474 U.S. at 127, while
the mandate of the Corps of Engineers and the injunction of
the trial court may fairly be said to advance legitimate govern-
ment interests, they clearly deny an owner economically viable
use of his land. Does such governmental action pass or fail
the constitutional test? Does it constitute a taking for which
the Fifth Amendment must provide relief? And, if no statute
permits a claim for the acts of the court, can the Fifth Amend-
ment be said to provide the base therefor?
| Many more farmers than the petitioner here need to know
if their work since July, 1977 in what might be characterized
as the waters of the United States, is about to fall under the
axe of the government’s Clean Water Act. Will they be told,
like the petitioner here, that they might be entitled to an after-
the-fact permit, but only if they first destroy their farms before
making an application?
‘See, also, Williamson County Regional Planning Commission v. Hamilton
Bank, 473 U.S. 172, 185-194 (1985); San Diego Gas & Electric Co. v. City
of San Diego, 450 U.S. 621, 636-661 (1981).
AVAILABLE COPY
Sey,
10
Conclusion.
For the foregoing reasons, a writ of certiorari should issue
to review the judgment and opinion of the Court of Appeals.
Respectfully submitted,
ALLAN van GESTEL,
Counsel of Record,
GOODWIN, PROCTER & HOAR,
Exchange Place, :
Boston, Massachusetts 02109.
(617) 570-1000
Table of Contents.
Appendix A — United States v. Cumberland Farms of »
Connecticut, Inc., 647 F.Supp. 1166 (D. Mass. 1986) la
el
Appendix B — United States v. Cumberland Farms of
Connecticut, Inc., 826 F.2d 1151 (1st Cir. 1987) 39a
Appendix C — Clean Water Act, section 404, 33
U.S.C. § 1344 68a
Appendix D — Acceptance of after-the-fact applica-
tion, 33 C.F.R. § 326.3(c) 82a
Appendix E — Letter, U.S. EPA to Off Cape Cran-
berry Corp. 84a
la
Appendix A.
UNITED STATES of America, Plaintiff,
Vv.
CUMBERLAND FARMS OF
CONNECTICUT, INC.,
Defendant.
Civ. A. No. 85-0846-Y.
United States District Court,
D. Masachusetts.
Oct. 16, 1986.
United States brought action against farming corporation,
charging violations of Clean Water Act. After issuing injunc-
tion, 644 F.Supp. 319, the District Court, Young, J., held
that: (1) farming corporation was not exempt from Corps of
Engineers permit requirements; (2) farming activities could
not avoid “recapture” under provision of Clean Water Act; (3)
certain “nationwide” permits did not excuse farming corpora-
tion from obtaining specific or individual permit; (4) restorative
injunction was not required to be crafted to protect single-fam-
ily dwellings erected adjacent to site after commencement of
farming operations, but was required to be crafted to protect
cranberry bogs which existed prior to governmental regulation
of area; (5) farming corporation was not subject to civil penalty
for operation engaged in prior to cease and desist order from
Corps of Engineers; but (6) corporation was liable for civil
penalties for actions taken in direct defiance of cease and desist
order.
Ordered accordingly.
2a
Richard E. Welch, III, Asst. U.S. Atty., Boston, Mass.,
for plaintiff.
Allan Van Gestel, Marjorie R. Corman, Goodwin, Procter
& Hoar, Boston, Mass., for defendant.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW'
YOUNG, District Judge.
At the inauguration of President Kennedy, Robert Frost read
a poem which began:
The land was ours before we were the land’s. She was
our land more than a hundred years Before we were her
people.
Frost, R., “The Gift Outright,” The Poetry of Robert Frost,
Lathem, E. ed., at 348-(1969). In imagery strikingly parallel
to the facts of this case, Frost evokes memories of the colonists
who, without benefit of bulldozers and earth moving machinery,
cleared the land in order to plant. Cutting away the bark, the
colonists girdled the trees unti! “vey died and could be felled,
moving the logs off the land and rendering it fit for agriculture.
That done, they ditched the land to improve its drainage.
I. Findings of Fact
Wetland soil is particularly attractive for agriculture since,
in any wet or mucky soil, vegetation decomposes less rapidly
' The Findings of Fact and Conclusions of Law in this action were originally
dictated from the bench immediately following the trial. The Court reserved
the right “to grammatically and editorially tighten up and recast the findings
of fact in a more understandable fashion ... and ... to expand on the
analysis of the law . . . supply[ing] other and further . . . citations.” While
the dictated findings and rulings were sufficient to govern the course of the
litigation, serve the litigants, and form the groundwork for any appeal, the
case warrants a written opinion. This is that opinion.
3a
than in the uplands. Termed “anerobic” to signal a lack of
oxygen, this soil is rich in organic nutrients, its peat-like com-
position being ideally suited for planting. Throughout history
farmers sought out this soil to clear and to cultivate. Such
clearing has consequences, however, and today such traditional
land use poses the single greatest threat to the nation’s wet-
lands. As a consequence, the Court must now balance two
enduring values: serving the needs of the present and safeguard-
ing the dreams of the future.
In fact, it can be said that this case involves a test of what
the nation has learned in the last three hundred years. On the
one hand, Congress has signaled its desire to preserve our
wetlands, an intent now codified in rather sweeping legislation,
see 33 U.S.C. ch. 26, § 1251 et seq., and further codified in
detailed and extensive regulations administered by the United
States Army Corps of Engineers, see 33 C.F.R. ch. 11, § 320
et seq. On the other hand, the Court takes judicial notice that
even in this industrial or post-industrial time, this country as
breadbasket of nations represents the greatest agriculturual suc-
cess story in the history of the world.
The Great Cedar Swamp
This case involves an area of land lying partly in the town
of Halifax and partly in the town of Middleborough in south-
eastern Massachusetts. Consisting of approximately 2,000
acres, the land is now, and has been at all material times,
known as the Great Cedar Swamp. From a saddle between
two rolling hills to the south flow two brooks which, in 1977,’
meandered northward encompassing between them the major-
ity of the land known as the Great Cedar Swamp. The stream
The year 1977 is important since the United States concedes for the purposes
of this action that its goal of restoring the land reaches back in time no further
than the state of the land as it existed on July 1, 1977, the effective date of
the regulations which it claims subjected the Great Cedar Swamp to Corps of
Engineers jurisdiction.
4a
on the east is known as Raven Brook, and the stream to the
west is known as Bartlett Brook. In 1977, the brooks snaked
through the Swamp until each emptied into the Winnetuxet
River to the north. Then and now, the Winnetuxet empties on
the west and southwest into the Taunton River and the Taunton,
in turn, empties into the Atlantic ocean. In fact, the Taunton
is tidal as far north as the City of Taunton, some five to ten
miles away from the Great Cedar Swamp.
In 1972 the area was covered in part by a soil of peat and
in part by a soil characterized as muck, either shallow or deep.
These soils are classified as “hydric,” i.e. wet soil kept con-
stantly moist by an high water table. Test borings taken in
1985 at various locations in the area confirm that, below the
30 foot contour line, layers of peat and sand or silt rest on a
lower layer of clay. A brickyard immediately northwest of the
site confirms the presence of clay in the subsoil. Soil borings
coupled with expert testimony confirm that a majority of the
acreage in question is or was a wetland, although areas within
the original 2,000 acre swamp, roughly those above the 30
foot contour, are not now and, indeed, could not ever have
been characterized as wetland. Many of these non-wetland
heights, however, were at one time surrounded by wetland.
In 1977, the Great Cedar Swamp was a typical fresh water
swamp. Portions remain so even today. Scientists term the
swamp areas “pollustrian wetland” because they are dominated
by sedges, ferns, moss shrubs, cattails, bullrushes and distinc-
tive varieties of trees. The ground cover of the Great Cedar
Swamp included sphagnum moss, -boneset, blue vervain,
water-cress, smartweed, tear-thumb, swamp aster, bedstraw,
reed canary grass, pond lilly, manna grass, broomsedge, bur-
reed, pondweed, water weed, common duckweed, greater
duckweed, pickerelweed, larger blue flag, arrow-arum, skunk
cabbage, rush, beakrush or spike-rush, softstem bullrush,
wood-grass bullrush, inflated sedge, silvery sedge, cattail, and
|
-Sa
royal fern. These plants grew in and around such shrubs as
black alder, poison sumac, swamp azalea, grass-leaved willow,
mountain holly, smooth alder, silky dogwood, and sweet gale.
Although recognizing that the catalogue above stems from
expert studies done in 1985, the Court infers that this flora,
indigenous to swamp lands, was found in the area in 1977.
Beyond hosting plants and trees, the swamp and its adjacent
damp woodlands support a large variety of bird life. Bird
nesting grounds have been noted in this area for at least 35
years. Birds present today include the Ruffed Grouse, Downy
and Hairy Woodpeckers, the American Crow, the Blue Jay,
and the Black-capped Chickadee. Less extensive, but also
present in the area over the past 35 years are the Veery, the
Northern Waterthrush, the Northern Yellowthroat, and the
Canada Warbler. The Northern Waterthrush and Canada War-
bler are rarely found outside white cedar swamps.
The area also shelters the Red-Tailed hawk which the Court
finds to have been present for at least the last 20 years. On
several occasion, the Eastern Bluebird has been found breeding
in Red Maples in the swamp.’
Other animal life is now, and was in 1977, prevalent in the
Great Cedar Swamp. Such animal life includes deer, raccoon,
skunk, and frogs—evidence of which the court observed on a
view taken on March 17, 1986. The Court also saw a pheasant
but, on the totality of the record before it, cannot infer the
presence of pheasant in the area beyond the immediate time
frame of the view.
‘On May 8, 1977, an experienced ornithologist observed two Peregrine
Falcons chasing a Northern Goshawk. The Court concludes, however, that the
Great Cedar Swamp is not a critical nesting area for the Peregrine Falcon
inasmuch as they have been successfully induced to nest on the roof of this
very courthouse in Boston where they live by feeding on the abundant pigeon
population which they catch in and above the city streets.
6a
On the present record, the Court cannot conclude that, prior
to Cumberland’s acquisition, any significant portion of the
area was ever utilized for agricultural purposes, although there
was a mill in or close to the area at one time. During World
War II, the armed forces used a center strip of the swamp for
a strafing run. Even recent aerial photographs capture a differ-
ence in vegetation growth which still marks the course of the
strafing run.
In 1972, V.S. Hasiotis Incorporated (“Hasiotis”) purchased
the land in question. Shortly thereafter, Hasiotis leased the
land to a related corporation owned by roughly the same group
of shareholders, Cumberland Farms of Connecticut, Incorpo-
rated (“Cumberland”). At or about the time of purchase, Cum-
berland commissioned studies relative to possible use of the
site for agricultural purposes. The Court finds that these studies
would indicate to a reasonable farmer that, for the area to
become productive farmland, the trees would have to be re-
moved from the better portion of the land. Moreover, the level
of the swamp would have to be lowered significantly by ditches
which could both irrigate the land when dry and drain the land
when excess water inundated the soil. These studies would
indicate to a reasonable farmer that once cleared and drained,
the mucky or peaty soil would be more than adequate for
farming. In short, the land was ripe for conversion to agricul-
ture, following methods little changed from colonial times.
Beginning in 1972 and working roughly from north to south,
Cumberland endeavored to bring the Great Cedar Swamp into
productivity as arable farmland. Sporadic but persistent, Cum-
berland’s activities derive from its corporate resources and its
corporate need. Clearing has occurred on a broad front both
on the eastern and western sides of Raven Brook, reaching
even to the far side of Bartlett Brook as well. Adjoining Fuller
Street, a large field has been cleared, this field marking the
approximate southernmost extension of cleared area. By 1977,
7a
a finger of cleared land just to the west of Raven Brook had
already appeared. Today, areas about the southern tip of land
have also been cleared and used as farmland.
By 1977, Cumberland had already installed a significant
network of drainage ditches in the northernmost area and had
straightened the meandering course of Raven Brook from ap-
proximately the midpoint of the property southward to the
terminus of a dirt-packed farm road. In 1977 and 1978, the
network of ditches on the western side of the property had
extenced only so far as the cleared land, and Bartlett Brook
south of the cleared area still followed its normal meandering
course.
From 1977 through 1985, Cumberland continued the process
of clearing and ditching. Raven Brook was straightened
throughout its entire length and Bartlett Brook, having earlier
been straightened only in the portion where the land had been
cleared, was straightened to the southern terminous of the
property. In 1983, the headwaters of the two streams were
joined by a ditch. The western boundary of the swampy portion
of the site was ditched in 1983, all this work being performed
by bulldozers and backhoes. Two farm roads running parallel
to Bartlett and to Raven Brook were in place by 1985. Over
the period 1978 through 1985, Cumberland converted 674.4
acres of wetland or cut-over wetland to agricultural use. Cum-
berland cut down the trees with power saws, skidding the
trunks out of the area in a normal lumbering operation. Cum-
berland then bulldozed the stumps and root systems.in a process
called scarification, removing in the process some of the top-
soil. Once cleared and leveled, a layoer of manure prepared
the land for actual planting.
Jurisdiction of the Army Corps
of Engineers
At approximately the time that Cumberland Farms acquired
the land on which the Great Cedar Swamp exists, the United
8a
States enacted various legislation designed to free the waters
of the United States from pollution. In 1972, the United States,
acting through the United States Army Corps of Engineers, to
whom the task of regulation and supervision had been dele-
gated, interpreted that mandate to deal only with the navigable
waters of the United States. Manifestly, none of the water
within the land here in issue is navigable.
In 1975, however, a United States District Court, sitting in
the District of Columbia, held that the Corps of Engineers had
too narrowly construed its mandate in light of the statutory
language and directed the Corps to expand its regulations to
embrace other non-navigable waters that could affect interstate
commerce. N.R.D.C., Inc. v. Callaway, 392 F.Supp. 685,
686 (D.D.C. 1975). The Corps complied and, in 1975, issued
interim regulations which asserted authority under § 404 of
the Clean Water Act as it then existed, 33 U.S.C. 1344, as
amended through P.L. 92-500, § 2, 86 Stat. 884, over waters
not actually navigable. This assertion of control engendered
considerable Congressional opposition. The controversy came
to a head during Congress’ consideration of the Clean Water
Act of 1977, a major piece of legislation aimed at achieving
interim improvements within the existing framework of the
Act. Much of the controversy focused on a specific exemption
for existing agricultural activities. But, as the United States
Supreme Court has pointed out, in the end Congress acquiesed
in the broad administrative construction adopted by the Corps.
United States v. Riverside Bayview Homes, Inc., —— U.S.
—., 106 S.Ct. 455, 88 L.Ed.2d 419 (1985).
This Court notes that the scope of the Corps’ asserted ju-
risdiction over wetland was specifically brought to Congress’
attention and Congress rejected measures designed to curb the
Corps’ jurisdiction, in large part because of Congressional
concern that protection of wetlands would be unduly hampered
by a narrowed definition of navigable waters. /d. at __ U.S.
9a
at __, 106 S.Ct. at 461-65, see also S.Conf. Rep. No. 92-
1236, p. 144 (1972) U.S.Code Cong. & Admin.News 1972,
pp. 3668; 118 Cong.Rec. 33756-33757 (1972) (statement of
Rep. Dingell). Possessed, then, of this broader authority to
regulate, the Corps granted certain nationwide permits which
exempted some activites from the requirement of obtaining
specific permits to dredge or fill specific areas of the waters
of the United States. Apparently oblivious both to this regula-
tory framework and the possibility of exemption under a nation-
wide permit, Cumberland Farms continued to drain, clear, and
fill portions of Great Cedar Swamp.
On March 2, 1983, Ruth Ellen Geoffroy, a member of the
Middleborough Conservation Commission, visited the prop-
erty in response to complaints that the Great Cedar Swamp
was being drained. During that visit Geoffroy saw a backhoe
working along Bartlett Brook in an area not yet converted to-
cornfields. John Peck, Cumberland’s Vice President for Oper-
ations and superintendent in the area, (“Peck”), informed her
that Cumberland had recently constructed a drainage ditch
along the perimeter of its property in the wooded area and was
in the process of constructing an additional drainage ditch
running more or less east and west within the wooded area
itself. Geoffroy’s own observations confirmed these admis-
sions and revealed red maples, recently cut, the'r stumps not
yet moved, as well as disturbance of the mucky earth in the
brook by the backhoe.*
Disturbed by what she had seen, Geoffroy returned on March
10th and March 16th to take additional photographs of the
Bartlett and Raven Brook areas and the roadways which Cum-
berland had run along their banks. Soon thereafter, she com-
*The Court notes that at the time of Geoffroy’s visit in March, 1983, two
inches of rain had just fallen on southeastern Massachusetts, and the Court
infers that the water table was as high as it ever routinely got in the area in
question.
10a
plained to the Massachusetts Department of Environmental
Quality Engineering and the United States Corps of Engineers.
Her complaints were the first indication that the Corps had of
alleged violations of the Clean Water Act by Cumberland in
the Great Cedar Swamp.
The Corps acted promptly in light of these complaints and,
on April 15, 1983, Lieutenant Colonel Arthur N. Rappaport,
Deputy Division Engineer of the Corps of Engineers (“Rap-
paport”), wrote Peck a letter noting that discharges were appa-
rently being made into the waters of the United States. Rap-
paport pointed out that Cumberland had never sought a permit
for such discharges and asserted the jurisdiction of the Corps
over the area. The letter expressly stated that Cumberland
Farms should not perform any further work within the areas
subject to Corps jurisdiction until federal authorization was
received. The Corps recommended that exposed stream banks
along Bartlett and Raven Brooks be stabilized and requested
further, detailed information. On May 4, 1983, Cumberland
responded by taking the position that its activities fell within
the agricultural exemptions set forth in 33 U.S.C.
§ 1344(f)(1)(A), (C), and (E) and maintaining that it had not
made any discharges into the waters of the United States.
Subsequent to the first notification of a complaint, and at
all material times thereafter, Cumberland has in an appropriate
and reasonable fashion permitted access to its land for inspec-
tion of its activities. On April 3, 1983, Elizabeth Ann
Koulaheras, a Senior Marine Fisheries Biologist for the Mas-
sachusetts Department of Environmental Quality Engineering,
inspected the property and observed an area of cornfield being
extended by bulldozing earth into a swamply wetland, destroy-
ing the-process the sphagnum moss, swamp azalea, cattails,
and other flora that grew there naturally.
On April 5, 1983, Janet Clare O’ Neill, a Senior Staff Wetlands
Engineer employed by the Corps of Engineers (““O’ Neill’), made
WG
lla
a general survey of the area. Although she did no detailed
study, O’ Neill concluded that the area was in fact a fresh water
wetland subject to the jurisdiction of the Corps pursuant to the
Clean Water Act. This determination was based upon her ob-
servation of those forms of plant life which grow only in hydric
soil. O'Neill observed also that various brooks had been
straightened from their normal meandering course. Some of
this work appeared recently completed, while other modifica-
tions marked by eroding banks collapsed into the water ap-
peared to have been completed some time in the past.
Without waiting for further Corps’ action, Cumberland made
a preemptive strike on June 10, 1983, commencing in this
Court an action against the Secretary of the Army, the Chief
of Engineers, and the Corps of Engineers for declaratory judg-
ment seeking to vindicate its interpretation that its land was
not within the jurisdiction of the Corps. Approximately a month
later, on July 8, 1983, the Department of Environmental Qual-
ity Engineering commenced an action against Cumberland
Farms in the Massachusetts Superior Court sitting in the County
of Suffolk seeking to prevent what it termed violations of the
Massachusetts Wetland Protection Act, See generally Mass.
Gen. Laws ch. 131, § 40, and requesting immediate injunctive
relief. At the time of the commencement of this action, Cum-
berland had almost 1,400 acres of land under cultivation and
was preparing to cultivate the remaining five hundred acres.
In both the federal and state actions, Cumberland took the
position that it was exempt from regulation because the land
was in agricultural use. See 33 U.S.C. § 1344(f)(1) and 310
Code of Massachusetts Regulations, § 10.04 (1983).
On September 9, 1983, the Corps moved to dismiss the
federal action on the ground that it had not yet determined
whether, in fact, it was going to assert jurisdiction over the
property. The Corps argued that the suit brought by Cumber-
land was premature and improvident until such time as the
12a
Department of the Army, through its Corps of Engineers,
actually asserted jurisdiction, thus establishing a genuine con-
troversy. On the record now before it, the Court finds that
move by the Corps of Engineers totally inexplicable in view
of the Rappaport letter of April 15, 1983.
Agreeing with the position taken by the Corps, another judge
of this court dismissed the federal action on May 25, 1984.
In the same time frame, the Massachusetts suit was reported
by a justice of the Superior Court to the Massachusetts Appeals
Court. On October 23, 1984, that court held that the action
by the Massachusetts Department of Environmental Quality
Engineering was premature because, under the Massachusetts
Wetlands Protection Act, such action ought commence with
the local community, advancing to the courts only if the liti-
gants were dissatisfied with the determination of the local
conservation commission. Department of Environmental Qual-
ity Engineering v. Cumberland Farms of Connecticut, Inc..,
18 Mass. App. Ct. 672, 469 N.E.2d 1286 (1984).
In sum, this Court finds that a year-and-a-half after the
initial report of alleged violations of the Clean Water Act, so
far as this record shows, the Corps of Engineers had not yet
determined whether it had jurisdiction and no state regulation
of the area was in effect. The Court finds that the matter was
thereafter brought before the local conservation commissions
in both Halifax and Middleborough where each community
individually determined that, under Massachusetts law, the
entire Great Cedar Swamp was exempt from local regulation
under the Massachusetts exclusion for agricultural use.
This matter again came to the attention of the Corps in
December, 1984, apparently through a press clipping mention-
ing the Corps. On December 23, 1984, Lieutenant Colonel
Edward D. Hammond, acting for Colonel Carl B. Siple, the
Division Engineer, communicated with counsel for Cumber-
land stating unequivocally that the Corps was asserting juris-
—
13a
diction over the area in question, pointing out alleged violations
of the Clean Water Act, and demanding that eight interim
protective measures be undertaken immediately. This un-
equivocal assertion of jurisdiction and demand for action led
to a series of meetings and eventually resulted in the erection
of a culvert with sluice gates in the Bartlett Brook. Evidently,
because either the culvert was too small or because it was
inadequately erected, it did not channel the water through its
course, thus rendering the sluice gate useless.
Beyond that, however, Cumberland objected to the interirn
protective measures because, as events bore out, operational
sluice gates would have had the effect of inundating certain
areas of Cumberland’s cornfields. Although this was the effect
intended by the Corps in order to restore the wetlands, inunda-
tion would have reduced Cumberland’s acreage under cultiva-
tion. Cumberland therefore balked and officially requested a
retroactive permit to validate the ditching and filling in which
it had engaged from July 1, 1977 to date. The Corps refused
to issue such a permit or even entertain Cumberland’s applica-
tion until such time as Cumberland implemented the interim
protective measures which the Corps desired. The matter at a
standstill, Cumberland removed the culvert from Bartlett Brook
and left it lying on the side of the brook where it remains to
this day.
The View
Pursuant to this action which commenced in June, 1985,
the Court took a view of the Cumberland property on March
17, 1986. The view involved an aerial overflight and circling
by helicopter, driving the perimeter and, on at least two occa-
sions, a hike of two or three hundred yards into the interior
of the Cumberland property. The factual matters which may
be inferred from the view all corroborate the facts drawn from
the testimonial and documentary record. The Court observed
numerous white pine in the area, their growth consonant with
l4a
a drained and receding wetland. The Court also observed a
type of sedge, probably the tussock sedge. Although it was
March, a wet time of the year, the level of the swamp appeared
to be a good two or three feet, if not more, below the evident
root system. Expert testimony confirmed this impression. In
an upland area close to a swampy section, the Court also noted
a plant known as the common mullein or verbascum thapsis
which expert testimony established to be an invasive plant, a
type which enters an area as the wetland recedes. Earlier, the
Court adverted in its findings to inferences drawn about the
historic animal population from testimony concerning current
fauna. The Court’s view confirmed such evidence even though
its survey took little more than two-and-one-half hours and
primarily involved the perimeters of the property. The Court
concludes that both bird and animal life are abundant in the
area.
Further factual findings are set forth, where warranted, in
the course of the discussion which follows.
II. Conclusions of Law
[1] As remarked above, this litigation grows out of Cumber-
land’s desire to farm its wetland more productively and the
Army Corps of Engineers’ duty to regulate wetland use under
the Clean Water Act, 33 U.S.C. §§ 1251-1376. Unfortunately,
these interests are not compatible.° The applicable statute seeks
to eliminate “the discharge of pollutants into navigable waters,”
33 U.S.C. § 1251(a)(1) (1978), and “to restore and maintain
the chemical, physical and biological integrity of the nation’s
waters,” 33 U.S.C. § 1251(a) (1982). These purposes are
“achieved by compliance with the Act, including compliance
with the permit requirements.” Weinberger v. Romero-Bar-
* See generally Caplin, 1s Congress Protecting Our Water: The Controversy
Over Section 404, Federal Water Pollution Act Amendments of 1972, 31 U.
Miami L.Rev. 445 (1977).
15a
celo, 456 U.S. 305, 315, 102 S.Ct. 1798, 1804, 72 L.Ed.2d
91 (1982). The permit system is administered by the United
States Army Corps of Engineers which regulates the discharge
of dredged or fill materials into “navigable waters.” See 33
U.S.C. §§ 1311, 1344 (1982).
The Act defines navigable waters as “waters of the United
States” and this definition includes wetlands. 33 C.F.R.
§ 323.2(a) (1985). A unanimous Supreme Court recently up-
held the Corps definition of wetlands:
[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 prevalance of vegetation typically adopted for
life in saturated soil conditions. Wetlands generally include
swamps, marshes, bogs and similar areas.
33 C.F.R. § 323.2(c) (1985), United States v. Riverside
Bayview Homes, Inc., __ U.S. —__, 106 S.Ct. 455, 88 L.Ed.2d
419 (1985) (construing the 1977 definition, the Court noted
that the 1982 definition is “substantially identical.”) Jd. 106
S.Ct. at 458. Addressing itself directly to § 404, the United
States District Court for the District of Columbia interpreted
the term “navigable waters” to “assert . . . federal jurisdiction
over the nation’s waters to the maximum extent permissible under
the Commerce Clause of the Constitution” and refused to limit
the term to “the traditional tests of navigability.” N.R.D.C., Inc.
v. Callaway, 392 F.Supp. 685, 686 (D.D.C.1975). In keeping
with the breadth, the Supreme Court recently held that “navigable
waters” includes water areas “adjacent to” navigable water.
United States v. Riverside Bayview Homes, Inc., —_—_ U.S. —,
106 S.Ct. 455, 88 L.Ed.2d 419 (1985).
As relevant to the instant matter, the statute regulates the
discharge into wetlands of pollutants, a term which includes
16a
“dredged soil . . . rock, sand [and] cellar dirt.” 33 U.S.C.
§ 1362(6) (1978). Federal regulation is achieved through a
permit system, a process which is “[t]he cornerstone of the
. . . Scheme for cleaning up the nation’s waters . . .,” United
States Steel Corp. v. Train, 556 F.2d 822, 829 (7th Cir. 1977),
as cited in United States v. Huebner, 752 F.2d 1235, 1239
(7th Cir. 1985). Apparently, however, Congress sought to calm
fear that the decision in N.R.D.C., Inc. v. Callaway would
result in an unlimited expansion of the Corps’ jurisdiction by
providing for the specific exclusion of certain activities from
regulation by permit. Accordingly, the statute now excludes
or exempts certain activities as follows:
(f) Non-prohibited discharge of dredged or fill material
(1) Except. . . the discharge of dredged or fill material
(A) from normal farming, silviculture, and ranching ac-
tivities such as plowing, seeding, cultivating, minor drain-
age, harvesting for the production of food, fiber, and forest
products, or upland soil and water conservation practices;
(C) for the purpose of construction or maintenance of
_farm or stock ponds or irrigation ditches, or the mainte-
nance of drainage ditches;
(E) for the purpose of construction or maintenance of farm
roads or forest roads . . . where such roads are constructed
and maintained, in accordance with best management prac-
tices to assure that flow and circulation patterns and chemical
and biological characteristics of the navigable waters are
not impaired, that the reach of the navigable waters is not
reduced, and that any adverse effect on the aquatic environ-
ment will be otherwise minimized.
is not prohibited by or otherwise subject to regulation under
this section. .. .
qeat,
17a
33 U.S.C. § 1344(f)(1), added December 27, 1977, Pub.L.
95-217, § 67(b), 91 Stat. 1600. To apply these standards,
Cumberland’s conduct must be analyzed by a contextual review
of its “total activities.” See Avoyelles Sportsmens’ League,
Inc. v. Marsh, 715 F.2d 897, 926 (Sth Cir. 1983). The charac-
terization of Cumberland’s current farming turns on an analysis
of whether such activities are “established and continuing.”
Id. at 925. At least in passing, Cumberland argued that its
agricultural use has historical antecedents that bring the site
under the exemption as “established and continuing” farming
activity. This argument fails for several reasons.
First, this Court has found no persuasive evidence that any
portion of this site was farm land prior to Cumberland’s acquisi-
tion and, however compelling the evidence of Cumberland’s
purchase of the site for agriculture and its actually farming a
portion of the site prior to the effective date of federal regula-
tion, the history of a site is not dispositive of the legal issues
facing the Court. United States v. Ciampetti, 20 E.R.C. 1926,
1933 (D.N.J.1984) (“[A]lthough the court is . . . fascinated
by the history of the site .. . for purposes of the present
controversy that history is of purely scientific value and is not
dispositive of the legal issues before the court”). Second, the
Fifth, Seventh, and Ninth Circuits have construed the Section
1344(f)(1) exemptions narrowly. See United States v. Akers,
785 F.2d 814, 819, 823 (9th Cir.1986); United States v.
Huebner, 752 F.2d 1235, 1240-41 (7th Cir.), cert. denied,
—_ U.S. __, 106 S.Ct. 62, 88 L.Ed.2d 50 (1985); Avoyelles
Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 925 n.44
(Sth Cir. 1983).
This narrow construction recognizes the statute’s legislative
history. Senator Edmund Muskie sponsored the legislation and
his remarks are to be given substantial weight. See United
States v. Akers, at 819, citing Federal Energy Administration
v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295,
18a
2304, 49 L.Ed.2d 49 ‘1976); Environmental Fund, Inc. v.
Costle, 636 F.2d 1229, 1243 n. 48 (D.C.Cir. 1980). Senator
Muskie 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
cumulatively. While it is understood that some of these
activities may necessarily result in incidental filling and
minor harm to aquatic resources, 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 Leg.Hist. 474 (1977).°
[2] Moreover, even if Cumberland could establish that it is
exempt from the permit requirements under § 1344(f)(1), it
must also demonstrate that its activities avoid “recapture” under
the provisions of 33 U.S.C. § 1344(f)(2). See United States
v. Akers, 22 E.R.C. 1238, 1243 (E.D.Cal.1985), aff'd 785
F.2d 814 (9th Cir. 1986). Section (f)(2), the “recapture provi-
sion,” seizes upon certain activities which on their face appear
exempt in order to bring them back under the statute. See
Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d at
926 (Sth Cir.1983). As a result, in order to be exempt from
regulation, Cumberland’s discharge must not only fall within
(f)(1), but also must escape recapture by (f)(2).
* Senator Muskie also remarked “[T]he exemptions do not apply to discharges
that convert extensive areas of water to dry land or impede circulation or reduce
the reach or size of the water body.” 3 Leg.Hist. 475 (1977). See also Repre-
sentative Harsha: Congress intended to exempt from the permit process only
“narrowly defined activities . . . that cause little or no adverse effects either
individually or cumulatively [and which do not] convert more extensive areas
of water into dry land or impede circulation or reduce the reach and size of
the water body.” 3 Leg.Hist. 420.
19a
In relevant part, § 1344(f)(2), added Dec. 27, 1977, Pub.L.
95-217, § 67(b), 91 Stat. 1600 provides:
Any discharge of dredged or fill material into 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.
Many courts have found those activities which extensively
change a wetland’s hydrologic regime are subject to the require-
ment that a Corps permit be obtained before proceeding. United
States v. Akers, 785 F.2d 814, 822 (9th Cir.1986); United
States v. Huebner, 752 F.2d 1235 (7th Cir.), cert. denied, _—
U.S. __, 106 S.Ct. 62, 88 L.Ed.2d 50 (1985); Avoyelles
Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (Sth
Cir. 1983). As the manifest intent of Congress was to prevent
the conversion of wetlands to dry lands, “the substantiality of
the impact on the wetland must be considered in evaluating
the reach of section (f)(2).” United States v. Akers, at 822.
Reading the exemptions of § 1344(f)(1) narrowly and the re-
capture provision broadly, United States v. Akers, 22 E.R.C.
1238, 1243 (E.D.Cal.1985), aff'd 785 F.2d 814 (9th Cir.
March 26, 1986), the Court holds that subsequent to July 1,
1977, Cumberland converted a wetland hydrologic regime and
that such modifications required a permit.
In fact, Cumberland straightened and channelized both Raven
and Bartlett Brooks, effectively draining the land. This project
cannot be described as “minor,” either individually or in a
contextual analysis of Cumberland’s “total activities.” Rather,
Cumberland’s activities involve precisely what is prohibited:
the wholesale modification of a major aquatic system having
20a
an adverse effect, both individually and cumulatively. The
Statute prohibits Cumberland’s actions because their
demonstrable effect is to convert extensive areas of water into
dry land, impede water circulation, and reduce the reach and
size of the water body.
Cumberland has altered the hydrologic cycles once operative
in the Great Cedar Swamp to the extent that, unchecked, Cum-
berland’s development would have the effect of draining it
completely. The Court rules the Cumberland property to be
wetlands under the Corps’ definition and further rules that no
applicable statutory exemption applies. Accordingly, sub-
sequent to July 1, 1977, Cumberland could lawfully engage
in dredge and fill activities in those areas of the Great Cedar
Swamp not then converted to agriculture only pursuant to a
Corps of Engineers’ permit.
[3] This analysis does not dispose of the matter, however,
because Cumberland now argues that certain “nationwide” per-
mits excuse it from obtaining a specific or individual permit.’
See former 33 C.F.R. § 323.4-2(a)(1) (the “headwaters per-
mit”) and current 33 C.F.R. § 330.3(b) (the “unasserted juris-
diction permit”). The first authorizes the discharge of dredge
or fill material into water, including wetlands, as long as the
discharge takes p.ace above the headwaters of a non-tidal river
or stream. The second appears to exempt work undertaken in
water bodies over which the District Engineer of the Army
Corps of Engineers was not asserting jurisdiction at the time
the activity occurred.
"At one point in this litigation, Cumberland was asked by Interrogatory:
“Do you contend that any of your activities in connection with the subject
property qualifies for any nationwide permit pursuant to 33 C.F.R. Part 330
or any other general permit issued by the Corps of Engineers?” Cumberland
Farms answered: “No.” Interrogatory 42; Answer of Cumberland Farms to
Plaintiff's First Set of Interrogatories, June 11, 1985. The United States does
not, however, argue that Cumberland is estopped by these answers from press-
ing these arguments at trial. The Court, therefore, deals with them here.
2la
The “Headwaters” Permit
The nationwide permit for “headwaters” allows discharges
of dredged or fill material into “non-tidal rivers, streams and
their impoundments including adjacent wetlands that are lo-
cated above the headwaters.” 47 Fed.Reg. 37146, as codified
at 33 C.R.F. 323-4-2(a)(1) (1977), see 33 C.R.F. 330.5
(1985). The Court finds that in March of 1986, the cubic feet
per second of water flow might be calculated at various points
in the Cumberland Farms subject area by reference to the
standard gauge in operation for many years. The standard
gauge is located a short distance south of the intersection of
the Winnetuxet and Taunton Rivers toward the ocean. While
the Taunton River is tidal at least as far north as Taunton, its
tidal nature has no effect on the standard gauge which measures
a watershed of 260 square miles. The area drained averages
a flow rate of 434 cubic feet per second. This works out to a
flow rate of 1.7 cubic feet per second per square mile of
contributing drainage area.
The Corps used this figure to calculate the cubic feet per
second of the flow from more discrete watersheds up the Taun-
ton, the Winnetuxet, and all of its tributaries, including Raven
and Bartlett Brooks. Given a standard measure from the state
farm gauging station of 1.7 cubic feet per second per square
mile of contributing drainage area, it takes 2.9 square miles
of drainage area to create a waterflow of five cubic feet per
second. Inferentially, any drainage area draining less than 2.9
square miles of drainage area will have a flow of less than
five cubic feet per second. Specifically, the Court finds that,
in 1986, at the intersection of Raven Brook and the Winnetuxet
River an average flow rate of 5.6 cubic feet per second exists
over a drainage area of 3.2 square miles. At the point where
Bartlett Brook drains into the Winnetuxet River, the water is
moving at 8.2 cubic féet per second.
22a
Cumberiand Farms points out that it is hardly possible, and
indeed the United States concedes as much, that at the point
where the streams enter land owned by Cumberland Farms
they are moving at a flow rate of five cubic feet per second.
The Court concludes that the brooks must move at a rate less
than five cubic feet per second where they enter the Cumberland
property but finds that upon emerging the brooks are moving
faster than the rate (five cubic feet per second) below which
the headwaters permit would apply. Cumberland asks the Court
to find the point in the swamp where the brook moves exactly
at five cubic feet per second and apply the headwaters nation-
wide permit above that point, at least until December of 1984
when the regulations were amended to render this exemption
inapplicable to Cumberland’s activities. The Court declines to
do so because such an attempt to fix a point would be sheer
speculation. Moreover, the Court is not persuaded that this
process lends itself to solution by a mathematical formula,
simply by figuring backwards up through the various drainage
areas as discerned from topographical maps. Rather, the court
would need to return to the area and actually calculate the
drainage area or obtain further expert evidence thereon. The
Court declines to re-open the evidence and notes that Cumber-
land bears the burden of proving that its activities come within
the ambit of a nationwide permit.
In any event, the United States argues that the headwaters
permit excludes any action which would destroy or adversely
~modify a critical habitat of a threatened or endangered species.
33 C.F.R. § 330-5(b)(3). The evidence before the Court dem-
onstrates that, although the Peregrine Falcon is an endangered
species, the Great Cedar Swamp cannot be found to be its
critical habitat. See n. 3 above. While the United States falls
back on evidence that the Eastern Bluebird is endangered, the
Court is not persuaded. The Eastern Bluebird is considered
threatened only on a list approved by the Commonweulth of
PME Do
23a
Massachusetts. However, should it prove significant, the Court
finds that the swampy area of the Great Cedar Swamp is a
critical habitat of the Eastern Bluebird.
These findings as to endangered bird life are thus not suffi-
cient to redeem the case for the United States were it not for
the prohibition against erosion and other nonpoint sources of
pollution found in the regulation. It is clear, and the Court so
finds, that the drainage ditches erected, despite Cumberland’s
best efforts, are not so fixed in their banks as to prevent a
significant amount of silty erosion from entering the waters
discharged. At least as to Raven Brook there is photographic
evidence unmistakably showing such erosion and turbidity in
the water. The Court infers that the ditching, while it drains
the area, makes the water velocity increase, an effect which,
in turn, increases the water’s erosive force. Accordingly, the
Court finds that a greater degree of erosion is occuring now
that these drainage ditches are in place and the streams have
been straightened.
With respect to Bartlett Brook, the finding must be inferen
tial because there is no photographic evidence of such erosion
or turbidity. The Court, then, makes such findings based on
the inferences it draws from testimony about the eroding banks
and that the streams have been ditched at various times. The
court reasons that erosion observed in the banks must shed silt
somewhere and, if signs of bank erosion have increased, so
too must have the silt shedding. Therefore, the Court concludes
that the “headwaters” permit does not apply.
The “Unasserted Jurisdiction Permit”
[4] Much more serious is the sweeping nationwide permit
granted by the Corps and codified at 33 C.F.R., § 330.3
(1985). In relevant part, § 330.3 reads:
The following activities are permitted by a nationwide
permit which was issued on July 19, 1977 and need not
24a
be further permitted. . . . Structures or works completed
. . in water bodies over which the District Engineer was
not asserting jurisdiction at the time the activity occurred
provided, in both instances, there is no interference with
navigation.
Cumberland did nothing to interfere with navigation here.
Moreover, the first time the Corps asserted jurisdiction over
the Great Cedar Swamp was by Colonel Sipie’s letter of De-
cember 28, 1984 to Cumberland. Accordingly, if the “Unas-
serted Jurisdiction Permit” applies to the Great Cedar Swamp,
the conduct of Cumberland will remain free of Corps regulation
until December 28, 1984. Upon reflection, however, the Court
concludes that the “Unasserted Jurisdiction Permit” has no
applicability to the Great Cedar Swamp and Cumberland’s
activities became subject to the Corps regulation on July 1,
1977, the date when the phased-in definition of wetlands came
be be applicable to Cumberland’s property.
An understanding of § 330.3(b) requires a discussion of the
enabling statutes upon which the Corps’ regulations are based.
The primary foundation of the Corps’ authority is § 404 of
the Clean Water Act, 33 U.S.C. § 1344. There is, however,
another statute under which the corps operates, namely the
Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401-418. The
Corps has regulated traditionally navigable waters under this
law since the turn of the century. The Rivers and Harbors Act
originally was enacted to give the Corps power to regulate
waters within and adjacent to the United States in order to
control and facilitate navigation. That goal remains a principal
reason for the Rivers and Harbors Act, but it is no longer the
only one. The Rivers and Harbors Act is now used also as a
means to regulate pollution in navigable waters. See 33 C.F.R.
§ 320.1 (1985). See also Zabel v. Tabb, 430 F.2d 199 (Sth
Cir. 1970).
25a
The principal provision under the Rivers and Harbors Act
is § 10, 33 U.S.C. § 403. That section prohibits the creation
of any potential obstruction to navigation in waters of the
United States, without a permit from the Corps of Engineers.
The principal difference between § 404 of the Clean Waters
Act and § 10 of the Rivers and Harbors Act is that the Rivers
and Harbors Act applies to work or structures in water that is
actually navigable in the traditional legal sense. In contrast,
the Clean Waters Act applies to any discharge or addition of
polutants into a much broader category of waters, namely
navigable and non-navigable “waters [inciuding wetlands] of
the United States.” An explanation of these statutes and the
differences between them is found in the Corps’ regulations.
See 33 C.F.R. §§ 320.1, 320.2. Compare 33 C.F.R. Part 322
with Part 323; and § 323.2(a) with §§ 323.3(b), 32.2(a) and
Part 329. See also Reid v. Marsh, 20 Env’t. Rep. Cases (BNA)
1337 (N.D. Ohio 1984).
General or nationwide permits are granted under the regula-
tory schemes of both statutes. A nationwide permit obviates
the need for individual permits for activities within the defined
category. See 33 C.F.R. § 330.1 (1985). Nationwide permits
under both the Clean Waters Act and the Rivers and Harbors
Act were created administratively by the Corps in a rulemaking
in 1977. See the preamble discussion to 33 C.F.R. Parts 320-
329 (1977), 42 Fed.Reg. 37122, 37126 col. 2 [general permits
under § 404] (July 19, 1977). Subsequently, Congress ratified
the Corps’ authority to promulgate such permits under the
Clean Water Act. § 404(e), 33 U.S.C. § 1344(e). As originally
codified, the nationwide permits were contained in separate
parts of the Corps regulations, Part 322 for the Rivers and
Harbors Act permits, and Part 323 for the Clean Waters Act
permits. See the 1977 regulations and preamble cited above.
In 1982, the Corps combined the nationwide permits into
one portion of its regulations, new Part 330. Preamble discus-
26a
sion, 47 Fed.Reg. 31794, 31798-31800 (July 22, 1982). This
is the part where both Rivers and Harbors Act § 10 and Clean
Waters Act § 404 nationwide permits are now codified.
In the recodification, the Corps stated that many of the
nationwide permits were meant to satisfy the requirements of
both the Rivers and Harbors Act and the Clean Waters Act,
but that some of them may, by their terms, still only apply to
one or the other law. 33 C.F.R. § 330.1 (1985). Courts have
recognized a continuing difference between some § 10 and
§ 404 nationwide permits. See Orleans Audubon Society v.
Lee, 742 F.2d 901, 905-06, 906 n. 9, 911-12 (Sth Cir. 1984).
The “Unasserted Jurisdiction Permit” applies only to “struc-
tures or work completed . . . in waterbodies over which the
District Engineer was not asserting jurisdiction at the time the
activity occurred .. .” 33 F.R. 330.3(b) (1985). The defini-
tional section of part 330 provides that the definitions contained
throughout the balance of the Corps rules apply. 33 C.F.R.
§ 330.2(a) (1985). “Structure” and “work” are defined in the
Corps regulations. Both definitions are found in 33 C.F.R.
§ 322.2."
The term “structure” includes any “pier, wharf, dolphin,
weir, boom, breakwater, bulkhead, revetment, riprap, jetty,
permanent mooring structure, power transmission line, perma-
nently moored floating vessel, piling, aid to navigation, or
any other obstacle or obstruction.” Cumberland’s activities do
not fit within this definition.
Similarly, its activities are not “work” under § 330.3(b).
“Work” is defined as “any dredging or disposal of dredged
material, excavation, filing or other modification of a navigable
water of the United States.” § 322.2(c) (emphasis added). For
* Where these definitions are codified has relevance in and of itself. Part
322 is the section of the Corps’ rules dedicated to regulation under § 10 of
the Rivers and Harbors Act. Part 322 does not apply to the Clean Water Act
and § 404. See 33 C.F.R. § 322.1 (1985).
27a
an activity to be “work,” it has to be in “navigable waters of
the United States.” Section 322.2(a) defines “navigable waters
of the United States” as “those waters of the United States that
are subject to the ebb and flow of the tide shoreward to the
mean high water mark, and/or presently are used, or have been
used in the past, or may be susceptible to use to transport
interstate or foreign commerce. See 33 C.F.R. part 329 for a
more complete definition of this term.” In other words, ac-
tivities are not “work” unless they occur in traditionally navig-
able Rivers and Harbors Act § 10 waters. As Cumberland
itself points out in its trial brief at pages 6-8, Bartlett and
Raven Brooks and the Great Cedar Swamp are not navigable
in fact, and do not fall within the jurisdiction of the Rivers
and Harbors Act.*® The Unasserted Jurisdiction Permit does not
apply to the area of the Great Cedar Swamp.
Injunctive Relief
[5, 6] The parties agree that the legal framework for deter-
mining whether a restorative injunction is appropriate is found
in United States v. Sexton Cove Estates, Inc., 526 F.2d 1293,
1301 (Sth Cir.1976). See United States v. Weisman, 489
F.Supp. 1331, 1343 (M.D.Fla.1980: United States v. Brad-
shaw, 541 F.Supp. 880, 883 (D.Md.1981). Any such restora-
tive mandatory injunction must meet three criteria. First it
must confer maximum environmental benefits; second, it must
be achievable as a practical matter; third, it must bear an
equitable relationship to the degree and kind of wrong which
it is intended to remedy.
*Some degree of confusion has been caused by the fact that both the Rivers
and Harbors Act and the Clean Waters Act employ the terms “navigable” and
“waters of the United States.” The Corps has tried to avoid this confusion in
its rules by using the phrase “waters of the United States” to connote the more
encompassing reach of the Clean Waters Act, and the phrase “navigable waters
of the United States” to connote the iesser reach of the Rivers and Harbors
Act. Cf. § 323.2(a) (waters under the Clean Waters Act) with §§ 323.2(b),
322.2(a), and Part 329 (waters under the Rivers and Harbors Act).
28a
The United States has proposed a specific restorative plan
with four major aspects. First, the United States proposes to
restore the water level in the Great Cedar Swamp to that obtain-
ing as of July 1, 1977. The United States proposes to restore
the preexisting water level by filling certain ditches within the
swamp excavated by Cumberland and, on the two major natural
water courses of the area, erecting a series of check dams
which would cause the water to flow around and over the
earthen dam structure itself, resulting in the flooding of areas
previously drained by Cumberland. This, when coupled with
two water control structures which the Corps proposes be
erected at the downstream terminus of each of Raven and
Bartlett Brooks where they exit the restored area of the swamp,
will result in raising the water levei.
In addition, the Corps proposes that cornfields be destroyed
within the site to be restored and that bulldozers create a series
of hummocks and hollows which, in the Corps’ view, will
best replicate the natural surface topography of this particular
type of swamp.
Third, the Corps proposes that the cornfields turned into
hummocks and hollows be mulched with strips of surface
vegetation including a variety of propagules — those portions
of plant life such as seeds, roots and the like, from which full
plants may thereafter be grown. The Corps proposes to plow
narrow strips from the existing swamp area, cart them out to
the hummock and hollow area, and mulch that area with them
so as to spread natural vegetation over the destroyed cornfields
_ in a great variety, consistent with the flora presently extant in
the swamp.
Finally, the Corps proposes that Cumberland may protect
those cornfields devoted to agricultural use prior to 1977 by
an earthen dam and ditch along the border of the area to be
restored.
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tay att Sal re ST, hE a OR
ibis basal Nitesitinestrlabtbe
29a
The Court considers first whether this plan will confer
maximum environmental benefits not only on the immediate
area— the Great Cedar Swamp, including the restoration area
itself—but on the immediately surrounding area, the general
waters of the United States, and the environmental balance in
southeastern Massachusetts. The United States bears the bur-
den of demonstrating that its plan will confer the maximum
environmental benefits.
A variety of considerations cut against the plan. First, the
plan will result directly in the destruction of over an hundred
acres of productive farmland, presently devoted to the growing
of corn—a use which, had it not occurred in a wetland, would
not only be sanctioned by the policies of both the United States
and the Commonwealth of Massachusetts, but encouraged by
those sovereigns.
Second, the proposed plan creates an increased risk of
damage to certain cranberry bogs immediately south of the
site proposed to be restored. There exists the risk that those
bogs, which were extant and operating before the Great
Cedar Swamp ever came under the jurisdiction of the Corps,
will be damaged by an increase in the ground water level
and that the ability of the bog owners to drain the bogs
rapidly, an important aspect of cranberry culture, will be
inhibited. On this record, the Court cannot say that such
interference with these bogs is a likelihood or an inevitabil-
ity, but it certainly is a possibility on this record, one which
must be recognized.
Twisa, subsequent to July 1, 1977, five homes have been
built hard by the eastern border of the swamp area to be
restored, and a sixth has had a septic system installed. These
five new homes, erected along Fuller Street during 1983, and
1984, achieve their septic drainage through a series of septic
tanks which comply in all respects with Title V of the Massa-
chusetts Sanitary Code. Indeed, the four new houses erected
30a
to the west of Fuller Street'® all have cellars which extend
approximately seven feet below the ground level. The houses
themselves are all on or above the 30 foot contour line on
maps having reference to the data base used for all calculations
herein and in the final judgment. Even so, it is a distinct
possibility that raising the level of the water in the Great Cedar
Swamp in the manner in which the Corps proposes could have
the effect of flooding the basements of these houses and in
effect destroying their septic systems, diminishing the value
of their land in a town which has no town sewage in this
particular area.
Then, too, it is clear that if the swamp area is restored to
the level existing in 1977, a great deal more surface water will
be exposed to the air. That, of course, is the goal of the
restoration. Likewise; such restoration would cause the streams
and the surface water to be far more stagnant than the draining,
ditching, and filling operations of Cumberland have caused it
to be. It is undisputed that such stagnant, swampy water will,
among other insect life, be an haven for the breeding of mos-
quitoes. The Court takes judicial notice, Fed.R.Evid. 201(b),
that southeastern Massachusetts has in the past five years been
the source of a few cases of Eastern Equine Encephalitis, a
disease borne by mosquitoes which is sometimes fatal.
Weighing against these concerns, there are a variety of con-
siderations that favor restoration of the swamp. Restoration of
the site will play a role in flood control. While this particular
site is not a water recharge area to any significant degree,
since the ground and surface water sits on a rather hard and
impervious clay substrate, restoration of the area will slow
down the. water flow, serve to prevent flood surges, and assist
in the natural regulation of the water flow from the headwaters
'°The Court makes no finding with respect to a certain log cabin erected to
the east of Fuller Street.
Sis Sn i aint i ali
A ie
3la
of the Raven and Bartlett Brooks down through the Winnetuxet
and Taunton Rivers. The area, therefore, like most wetlands,
functions as a flood storage area for this part of Massachuseits.
Moreover, the restoration of the Great Cedar Swamp can
be expected to significantly improve the functioning of that
particular wetland as a biological filter, one which will serve
naturally to improve the quality of the water downstream. This
is accomplished by slowing up the water, causing it to meander
through the swamp and be naturally filtered through all the
natural organic material in the swamp.
Finally, restoration of the area in the manner proposed by
the Corps will have a direct improvement on the animal habitat.
The Great Cedar Swamp is one of the largest remaining wet-
lands in Massachusetts. It is bordered by the Little Cedar
Swamp to the east. The whole idea of strip mulching a variety
of flora around and over the destroyed cornfields is to maximize
the potential for restoring the area as a nesting and breeding
place for all those natural species, both flora and fauna, which
during former times existed in the swamp. In order to have a
full array of animal and bird life in a swampy area of this sort,
a swamp of a certain size must be maintained. This is so
because the animal and bird life in a swamp of this sort need
a certain territorial range. The failure to restore the Great Cedar
Swamp to its 1977 boundaries would not simply restrict plant
and animal life to the portion of the swamp as yet undisturbed,
but it could well serve to cause particular species to leave the
area altogether—an irreparable loss. The controlling law tips
the balance in this case in favor of a restorative injunction.
Certainly the controlling law favors the restoration of wetlands
which have been adversely affected without a permit and con-
trary to law. Indeed, unless the balance cuts significantly
against a restoration of the environment to the status that it
enjoyed when the legislation with respect to this land took
effect in 1977, restoration ought be ordered. “The intricate
32a
web of interdependence which characterizes our environment
requires that we look beyond the present and immediate in
assessing the value of any particular element of the environment
or of gauging the harm that will accrue from its destruction.”
United States v. Weisman, 489 F.Supp. 1331, 1346 (M.D.Fla.
1980) (Scott, J.). In Weisman, Judge Scott thoughtfully and
precisely articulates the legislative intent that the nation’s wet-
lands be preserved. Therefore, despite the recognized possibil-
ity of adverse consequences to immediate abutters, a restoration
of the site to the status it enjoyed in 1977 is in the public and
the national interest and consistent with the controlling law
and, therefore, as this Court interprets the controlling standard,
maximizes environmental benefits.
The second consideration concerns the practicability of
achieving a restoration of the site to its condition as of 1977.
It is appropriate and reasonable to gauge the 1977 level of the
swamp from the growth of the tussock sedge along the borders
of the natural water courses within the swamp. The Court finds
that level to be between 25 and 26 feet above the standard
data base. The Court recognizes that, with respect to the
bulldozing of hummocks and hollows and the strip mulching,
the proposed restoration project is somewhat experimental and
untested. It may be, as counsel has noted, that the Court will
become “the architect of a great mud pond.” On the totality
of the record before it, however, the Court finds this unlikely.
The proposal made by the Corps is both technically competent
and innovative and, in furthering the public good, one worthy
of attempting. With some modification, the Court finds the
proposal to be practicable.
Third, the Court must consider whether the proposed project
bears an equitable relationship to the degree and kind of wrong
which it is intended to remedy. Since portions of the wetland
were, since 1977, adversely and illegally affected by the drain-
ing and filling operations, it is not inequitable to destroy the
Sa Par ct a i atte tt —
33a
cornfields planted in those portions. Those who built their
houses hard by the Great Cedar Swamp are in a somewhat
different position as they did so in complete good faith, without
any knowledge or appreciation of the possibility that Cumber-
land was illegally farming its own property. Still, the fact is
that the Great Cedar Swamp came within the Corps’ jurisdiction
on July 1, 1977 and abuttors who built their houses thereafter
are thus in a position analogous to those who have built in
violation of zoning laws of which they knew nothing. They
bear the risk that the controlling law will be uniformly enforced,
see e.g., Cullen v. Building Inspector of North Attleborough,
353 Mass. 671, 678-679, 234 N.E.2d 727 (1968) (structures
offensive to zoning by-law ordered dismantled despite
economic waste argument); accord Carpenter v. Zoning Board
of Appeals of Framingham, 352 Mass. 54, 223 N.E.2d 679
(1967); Bridgewater v. Chuckran, 351 Mass. 20, 217 N.E.2d
726 (1966), and it is thus not inequitable to enforce the law
here for the general public good even though such enforcement
carries with it some attendant risks for these abuttors. The
owners of the cranberry bogs to the south are in still a different
position. Like the newly abutting homeowners, they are com-
pletely without fault. Moreover, their cranberry farming ante-
dated any government regulation in this area whatsoever. For
the restoration under the Corps’ auspices to adversely affect
their interests would appear to violate the agricultural exemp-
tion they enjoy under 33 U.S.C. § 1344(f)(1). Accordingly,
the Court concludes that, as to them, the restoration proposed
by the Corps is so sweeping as to be inequitable. Thus, no
check dam shall be constructed closer than 1,000 feet from
the boundary of any such cranberry bog. Pursuant to the same
reasoning, since there were cornfields extant both east and
west of Raven Brook prior to 1977, but one check dam shall
be erected along that portion of Raven Brook bordered on both
sides by these cornfields.
34a
The mandatory restorative injunction which forms part of
the final judgment herein is crafted in such a way as to restore
the Great Cedar Swamp to its condition as of July 1, 1977,
sensitive to the concerns just discussed.
Penalty
[7] Pursuant to the Clean Water Act, 33 U.S.C. § 1319, it
is open to the United States to seek a civil penalty of up to
$10,000 per day for each day of violation of that Act. A day
of violation constitutes not only a day in which Cumberland
was actually using a bulldozer or backhoe in the wetland area,
but also every day Cumberland allowed illegal fill material to
remain therein. United States v. Tull, 615 F.Supp. 610, 626
(1983), aff'd 764 F.2d 182 (4th Cir.1983). See also
Chesapeake Bay Foundation, Incorporated v. Gwaltney, 791
F.2d 304, 24 ERC 1417-1427 (4th Cir. 1986).
Since 1972 Cumberland has followed an intentional policy
of draining, ditching, filling the Great Cedar Swamp and turn-
ing it to productive agricultural use. That policy has been
implemented at a rate consistent with Cumberland’s economic
needs in light of the equipment and manpower available to
actually seed and plant the areas taken from the wetland.
When Cumberland first became aware that local, state, and
national authorities questioned its right to continue its draining
and filling operations, it did two things. First, it resorted to
active and aggressive lawyering, the exercise of its legal rights
to determine its legal position. Throughout, insofar as this
Court can see, the issues that Cumberland has placed before
the state and federal courts have been, in the main, issues
worthy of careful consideration and appropriate for full litiga-
tion, and no sanction will be visited upon it for this conduct.
At the same time, it is clear that Cumberland, even after the
intitial requests and then orders that it stop, continued with its
filling, ditching, and grading operations. It continued, more
sporadically, somewhat surreptitiously, but it did intentionally
35a
continue to fill, drain, and ditch the premises on the theory
that the regulatory authorities and the courts would not be
likely to order destruction of fields already plowed and planted
but would rather simply order an halt to further activities. For
this conduct, too—at least insofar as it took place prior to
December 28, 1984—Cumberland will not be punished,
though the Court finds Cumberland’s conduct and its insensi-
tive approach to responsible environmental concerns reprehen-
sible as a matter of corporate citizenship. The Corps’ own
opaque regulation, 33 CFR 330.3, so vitiates any claim of
legal culpability on the part of Cumberland prior to December
28, 1984 that this Court, as matter of discretion, refrains from
imposing any penalty for actions prior to that date.
The United States argues that there is no credible evidence
that Cumberland actually relied on the Unasserted Jurisdiction
Permit. This is so, but it is irrelevant. Insofar as the Clean
Water Act provides for penal sanctions, it is to be strictly
construed. See United States v. Anzalone, 766 F.2d 676, 680
(Ist Cir. 1985); United States v. Medina, 797 F.2d 1109, 1114
(1st Cir.1986). A “statute which either forbids or requires the
doing of an act in terms so vague that men of common intel-
ligence must necessarily guess at its meaning and differ as to
its application, violates the first essential of due process of
law.” Connally v. General Construction Co., 269 U.S. 385,
391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Lanzetta v.
New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed.
888 (1939); Winters v. New York, 333 U.S. 507, 515-516, 68
S.Ct. 665, 670, 92 L.Ed. 840 (1948). This is no less true of
a federal regulation. The Unasserted Jurisdiction Permit regu-
lation, 333 CFR 330.3, fails this test since persons of common
intelligence would not suspect that it applies solely to exempt
certain conduct from the reach of the Rivers and Harbors Act,
§ 10, and has no applicability to the permit granting procedure
under the Clean Water Act. To paraphrase a distinguished
36a
Massachusetts jurist, “The vice of [this regulation prior to the
unequivocal assertion of Corps jurisdiction] lies in its failure
to prescribe any standard capable of intelligent human evalu-
ation to enable one chargeable with its violation to discover
those conditions which convert conduct which is prima facie
lawful into that which is [penalized].”” Commonwealth v. Car-
penter, 325 Mass. 519, 521, 91 N.E.2d 666 (1950) (Wilkins,
J.). Indeed, the draftsmanship of the Unasserted Jurisdiction
Permit, 33 CFR 330.3, is a reproach to the Corps. Without
the most extensive and careful analysis of the background of
the regulatory scheme, no reasonable person in Cumberland’s
position would conclude that he did not enjoy the protection
of the Unasserted Jurisdiction Permit, at least until December
28, 1984.'' In these circumstances no penalty ought be visited
on Cumberland for its conduct prior to its receipt of the letter
of December 28, 1984.
After December 28, 1984, or at least once the Corps’ letter
of that date was received by Cumberland on January 2, 1985,
however, it could hardly misunderstand that the Corps was
exercising jurisdiction over the Great Cedar Swamp and the
national permit set out in 33 CFR 330.3 had no further arguable
relevance. Cumberland refused to comply with the immediate
remedial measures demanded, and sought the judgment of
“some higher authority.” Whatever it meant by that, to the
extent that Cumberland, in effect, said, “Sue, me,” this Court
will impose no punishment. That is what the courts are for.'?
'' It will be remembered that, in seeking to have Cumberland’s declaratory
judgment action dismissed, the Corps itself represented to this Court on Sep-
tember 9, 1983 that it had not determined whether to exercise jurisdiction over
the Great Cedar Swamp.
The United States seems to be arguing that the gravity of Cumberland’s
offense under the Clean Waters Act is deepened by its refusal to submit
immediately to the Corps’ demands that it flood certain of its fields and dam
numerous drainage ditches that it had constructed at its own cost. To accept
——aI~e
37a
[8] Whatever Cumberland’s right to seek legal redress, how-
ever, Cumberland well knew it assumed the full risk of condign
punishment for its further destruction of the Great Cedar
Swamp. Nevertheless, even with this full knowledge, on or
about March 10, 1985, and in the days preceding, Cumberland
extended the area of soil disturbance further into the swamp
by burning brush and by moving and grading and filling the
top soil in defiance of the cease and desist order."
Further, on April 3, 1985, Cumberland was operating a
backhoe within the swamp area along the westerly border of
the site and was removing material from a ditch it had earlier
constructed, piling that material on wetland vegetation and
destroying certain of that wetland vegetation.
Likewise, during the spring of 1985, in defiance of the cease
and desist orders, Cumberland ran a ditch from the center of
its property to the Bartlett Brook. This ditching, in addition
to the destruction of wetland vegetation, caused further erosion
of soil in that area.
In May, 1985, Cumberland took the next step of converting
to productive farmland the land it had taken from the Swamp
this argument would result in embracing a princple entirely foreign to our
tri-partite democratic system of checks and balances and woula punish Cum-
berland for resorting to the courts. It is one thing to punish for affirmative
conduct knowingly undertaken in defiance of lawful cease and desist orders.
This Court will bring the full weight of the law to bear to punish such miscon-
duct. See infra at 46-47. It is quite another to punish someone for inaction
when he chooses to resort to the courts to adjudicate his rights rather than
perform some affirmative action required by his government, which action
will destory his property and cause him economic harm. In short, someone
who refuses to jump through the government’s hoop and instead says, ‘take
me to court,’ should not, and in this Court will not, be punished for that conduct.
''Cumberland advances the argument that the destruction of the natural
site—the Court uses the word “destruction” advisedly—must have taken place
the preceding autumn. That it preposterous. The photographic evidence, espe-
cially Exhibit 26, speaks for itself. The fresh vehicle tracks and debris are so
obvious as to compel the conclusion that major soil disturbance was taking
place in March, 1985 in defiance of the cease and desist order.
38a
in March. Cumberland stored manure in that area prepatory
to spreading it on the plowed topsoil.
During November and December, 1985, in defiance of the
Corps’ cease and desist orders, Cumberland extended a field
it had earlier cleared-near-the southerly border of the site. In
extending the border of that field, Cumberland piled fill mate-
rial within an area of the swamp and, indeed, pushed stumps
and top soil close by the edge of Raven Brook.
The work accomplished subsequent to the receipt on January
2, 1985, of the letter of December 28, 1984, consumed, at a
minimum, 20 man days, all of which involved the use of heavy
equipment on fragile wetland vegetation. Each of these incur-
sions was made well knowing that, at least as of December
28, 1984, the United States asserted jurisdiction over the site,
and what’s more, had ordered that such disturbance of the
wetland area cease. Each and every one of these incursions
was made in intentional violation of the orders of the Corps.
The penalty imposed in the final judgment entered herein is
designed to punish Cumberland and deter others from similar
misconduct within the nation’s environmentally precious wet-
lands.
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39a
Appendix B.
UNITED STATES of America,
Plaintiff, Appellee,
v.
CUMBERLAND FARMS OF
CONNECTICUT, INC.,
Defendant, Appellant.
No. 86-1983.
United States Court of Appeais,
First Circuit.
Heard April 9, 1987.
Decided Aug. 18, 1987.
As Amended Aug. 20, 1987.
United States brought action against farming corporation,
charging violations of the Clean Water Act. After issuing in-
junction, 644 F.Supp. 319, the United States District Court,
William G. Young, J., 647 F.Supp. 1166, held that farming
corporation was not exempt from Army Corps of Engineers
permit requirements, and that corporation was liable for civil
penalties for action taken in direct affiance to cease and desist
order. Corporation appealed. The Court of Appeals, Levin H.
Campbell, Chief Judge, held that: (1) farming corporation did
not qualify for “headwaters” nationwide permit, so that its
drainage of freshwater wetland without individualized perm:t
violated the Clean Water Act; (2) any ambiguity in nationwide
“unasserted jurisdiction” permit issued by the Army Corps of
Engineers, as to whether permit applied to drainage activities
regulated under the Clean Water Act, did not excuse farming
40a
corporations from its equitable duty to reverse harmful affects
of drainage activity; and (3) restorative injunction, requiring
corporation to restore wetland to its original condition, was
not abuse of discretion.
Affirmed.
Allen van Gestel with whom Nancer Ballard, William J.
Duensing and Goodwin, Procter & Hoar, Boston, Mass., were
on brief for defendant, appellant.
Edward J. Shawaker with whom F. Henry M. Habicht II,
Asst. Atty. Gen., Washington, D.C., Robert S. Mueller III,
U.S. Atty., Richard F. Welch III, Asst. U.S. Atty., Boston
Mass., and David C. Shilton, Washington, D.C., were on
brief for plaintiff, appellee.
Douglas B. MacDonald, Ralph A. Child, David P. Novello
and Palmer & Dodge, Boston, Mass., on brief for Sierra Club,
amicus curiae.
Before CAMPBELL, Chief Judge, TORRUELLA, Circuit
Judge, and MALETZ,* Senior Judge.
LEVIN H. CAMPBELL, Chief Judge.
This is an appeal by Cumberland Farms of Connecticut,
Inc. (“Cumberland”) from a judgment of the United States
District Court for the District of Massachusetts.' The district
court ruled that from 1977 to 1985 Cumberland had violated
sections 301 and 502 of the Federal Water Pollution Control
Act (the “Clean Water Act’”’), 33 U.S.C. §§ 1311, 1362 (1982),
by dredging and filling a freshwater wetland without the re-
* Of the United States Court of International Trade, sitting by designation.
' The district court’s opinion is printed at 647 F.Supp. 1166(D. Mass. 1986).
rece | Ser ees caret rt sie
4la
quired permit from the Army Corps of Engineers (“Corps”).
Clean Water Act, section 404, 33 U.S.C. § 1344 (1982). The
court ordered injunctive relief directing Cumberland to restore
the wetland to approximately its 1977 condition. The court
also imposed a civil fine of $540,000, of which $390,000 was
to be remitted to Cumberland if it satisfactorily restored the
wetland as ordered in the injunction. Cumberland raises numer-
Ous issues On appeal.
I. BACKGROUND
The area in contention consists of about 2,000 acres of the
Great Cedar Swamp located in southeastern Massachusetts.
Prior to Cumberland’s activities, the Great Cedar Swamp was
a forested freshwater swamp. It was then one of the largest
freshwater wetlands in Massachusetts. Freshwater wetlands
are ecologically valuable for various reasons. They act as a
natural flood control mechanism by slowing and storing storm
water runoff. They help supply fresh water to recharge ground-
water supplies. They serve as biological filters by purifying
water as it flows through the wetlands. They provide seasonal
and year-round habitat for both terrestrial and aquatic wildlife.
See 33 C.F.R. § 320.4(b) (1986).
In 1972, V.S. Hasiotis, Inc., purchased the 2,000-acre wet-
land, leasing it to Cumberland Farms of Connecticut, Inc. (a
related corporation owned by essentially the same shareholders
as Hasiotis, Inc.). Beginning in 1972 and continuing through
1985, Cumberland began converting the swamp into farmland
using dredge and fill techniques. Cumberland removed the
standing timber, bulldozed the stumps and roots and !evelled
the soil in preparation for planting. To lower the water table
so as to make the wet soil arabie, Cumberland dug a network
of drainage ditches and channelized two streams (the Raven
Brook located on the eastern side of the swamp, and the Bartlett
Brook to the west).
42a
In recent times the Army Corps of Engineers has been reg-
ulating the dredging and filling of freshwater wetlands, relying
for its authority on sections 301 and 502 of the Clean Water
Act, 33 U.S.C. §§ 1311 & 1362. These provisions prohibit
the discharge of dredged or fill material into “navigable waters”
unless authorized by a permit issued by the Corps pursuant to
section 404, 33 U.S.C. § 1344. When these provisions were
enacted in 1972, the Corps at first construed the term “navig-
able waters,” 33 U.S.C. § 1362(12), literally. Thus from 1972
until 1975, a Corps permit was required under section 404 of
the Clean Water Act only if dredge and fill operations took
place in waters that were actually navigable.
In 1975, the Corps revised it regulations so that the term
“navigable waters” came to include, inter alia, freshwater
wetlands that were periodically inundated and which supported
vegetation that requires saturated soil conditions. See United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106
S.Ct. 455, 457, 88 L.Ed.2d 419 (1985); 33 C.F.R.
§ 209. 120(d)(2)(h) (1976). In 1977, the Corps further extended
this jurisdiction over wetlands by eliminating the requirement
that the wetland be periodically inundated, requiring only that
it be inundated or saturated by surface or groundwater at a
sufficient frequency to support vegetation adapted for life in
saturated soils. Jd. at 458; 33 C.F.R. § 323.2(c) (1978). In
Riverside Bayview Homes, the Supreme Court upheld the
Corps’ expanded view of its regulatory authority over freshwa-
ter wetlands under the Clean Water Act. Jd. at 465. In conjunc-
tion with its program of regulating dredge and fill activities,
the Corps established a number of so-called “nationwide per-
mits.” These allow certain categories of activities to be carried
on without first obtaining an individual permit. At issue in
this case is whether Cumberland’s dredge and fill activities
were validated by one or another of two nationwide permits.
The practicial effect of the Corps’ expanding jurisdiction
under the Clean Water Act was that, beginning in July 1977,
43a
the wetlands in question came under the Corps’ regulatory
power. Thereafter, Cumberland’s dredge and fill activities re-
quired an individual permit from the Corps pursuant to section
404, 33 U.S.C. § 1344, unless, as discussed infra, Cumberland
qualified under a statutory exception to the permit requirement
or for a general nationwide permit. Cumberland did not, how-
ever, apply for an individual permit in 1977 or thereafter, but
continued to dredge and fill the Great Cedar Swamp. The
district court found that from 1978 to 1985 Cumberland con-
verted 674.4 acres of wetland to farmland through the use of
dredge and fill. 647 F.Supp. at 1171.
In April 1983, a private individual first alerted the Corps
to Cumberland’s activities. The Corps then sent a letter to
John Peck, Vice President of Operations for Cumberland, not-
ing the discharges of dredge and fill material were apparently
being made into waters under the Corps’ jurisdiction without
the required permit. The letter stated that no additional work
should be performed in the area subject to the Corps’ jurisdic-
tion unless and until Cumberland obtained a permit. The letter
asked for some additional information and recommended that
exposed stream banks along the Bartlett and Raven Brooks be
stabilized. In addition, the Corps set out eight interim protective
measures that Cumberland should institute in order to restore
the water table to its 1977 level, including filling various
drainage ditches that Cumberland had installed.
In May 1983, Cumberland responded by asserting that its
activities fell within the statutory exemption for agricultural
work, 33 U.S.C. § 1344(f)(1), and that in Cumberland’s view
no permit was needed. In June 1983, prior to any further Corps
activity, Cumberland instituted an action against the Corps in
federal district court seeking a declaratory judgment that its
activities were permitted by the statutory agricultural exemp-
tion. Cumberland argued that the Corps’ letter had been a final
determination by the agency of its jurisdiction, and that this
44a
determination presented a judicially reviewable issue. Because
the Corps allegedly had no power to regulate Cumberland’s
activities in the Great Cedar Swamp, Cumberland argued that
it should not be required to apply for a permit or otherwise
go through the administrative process. The district court dis-
missed Cumberland’s action, agreeing with the Corps that, as
of yet, the Corps had only made an initial determination of
jurisdiction and that this initial determination did not permit
judicial review. The court held that to allow the declaratory
judgment action to proceed would improperly and prematurely
interrupt the Corps’ administrative process. The court made it
clear that its dismissal of the action would not preclude Cum-
berland from raising the jurisdictional issue after the Corps
had completed its administrative process.
In December 1984, the Corps unequivocally asserted juris-
diction in a letter to Cumberland. The Corps pointed out alleged
violations of the Clean Water Act, ordered that Cumberland
cease its illegal activity and demanded that eight interim pro-
tective measures be undertaken. These interim protective meas-
ures were designed to restore the area to its 1977 freshwater
wetland condition. Cumberland objected to the interim protec-
tive measures because they would have inundated Cumber-
land’s farm fields. Cumberland refused to implement the pro-
tective measures unless and until “some higher authority” de-
termined that to be an appropriate result. For the first time,
Cumberland formally «pplied for an individual permit, but the
Corps took the position that under its regulations it could not
consider issuance of a retroactive permit until the area had
been restored to its 1977 condition under the mandated interim
protective measures. 33 C.F.R. § 326.3(c) (1986). The Corps
then brought this enforcement action.
The district court held a bifurcated trial with a liability phase
and a remedies phase. As to liability, the court found that
Cumberland had violated the Clean Water Act by discharging
45a
into waters of the United States without a Corps permit. 647
F.Supp. at 1174-75. The court held that Cumberland’s ac-
tivities did not fall within the statutory exemption for agricul-
tural activities, ruling that the exemption applies only to prior
established and continuing farming, id. at 1175, whereas Cum-
berland’s activities constituted a new conversion of wetland
to agriculture. Cumberland does not appeal from this ruling.
The district court also rejected Cumberland’s claim that it
qualified for either the “headwaters” nationwide permit, 647
F.Supp., at 1177-78, or the “unasserted jurisdiction” nation-
wide permit, id. at 1178-80. Cumberland appeals from these
rulings, arguing the both nationwide permits applied to its
activities, relieving it from any need to obtain an individual
permit.
After finding Cumberland liable for violating the Clean
Water Act, the court held a second trial, this time to consider
a monetary penalty and an injunction ordering Cumberland to
restore the property to its former state.
The court concluded that it would not assess a fine for the
period from 1977 to December 1984. It found the language
in the regulation relating to the “unasserted jurisdiction” nation-
wide permit so opaque as to vitiate any legal culpability on
the part of Cumberland during these years. 647 F.Supp. at
1184. After December 1984 (when the Corps unambiguously
asserted jurisdiction), the court believed that Cumberland could
not have misunderstood that the nationwide “unasserted juris-
diction” permit did not cover its activities. The court found
that from December 1984 through March 1985, despite the
clearly asserted jurisdiction by the Corps, Cumberland con-
tinued its further destruction of the Great Cedar Swamp, in
direct violation of the Corps’ cease and desist order. The court
found that this continued intentional violation of the Clean
Water Act warranted a civil monetary penalty. 647 F.Supp.
at 1185.
cia aeaaiaaiiiaaiiaal
46a
The court also considered the Corps’ request for a injunction
ordering that the wetland be restored to approximately its 1977
condition. The Corps’ proposed a plan called for a process of
restoration with four major components. The water level of
the Great Cedar Swamp was to be restored to it 1977 level by
filling in certain ditches, and by erecting a series of check
dams. The plan proposed that bulldozers be used to create a
series of hummocks and hollows, so as to best replicate the
natural surface topography of a swamp. The plan proposed
that narrow strips of vegetation from the nearby existing swamp
area be plowed up and moved to the restoration area. These
strips of surface vegetation would be spread over the restoration
area so as to provide a plant and seed source to regenerate a
great variety of swamp species. The plan also proposed that
an earthen dam and ditch be constructed along the edge of the
restoration area to protect Cumberland’s cornfields that were
established prior to 1977.
The court generally accepted the Corps’ restoration plan,
finding that it would confer maximum environmental benefits,
647 F.Supp. at 1181-82, that the plan was practical and would
achieve the desired result of restoring the wetland to approx-
imately its 1977 condition, id. at 1182-83, and that the resto-
ration bore an equitable relationship to the degree and kind of
wrong which it was intended to remedy, id. at 1183. The court
modified the Corps’ proposed restorative plan to the extent of
altering the location of the check dams in orde1 to protect
nearby cranberry bogs and to better protect Cumberland’s
cornfields that were to remain. On appeal Cumberland chal-
lenges the restoration order, arguing that it is impractical and
speculative. Cumberland further argues that the district court
should not have ordered restoration of the swamp but rather
should have remanded to the Corps so that Cumberland could
apply for an after-the-fact individual permit.
ee ee ee ye ee
8 OE LO POND Ee ER ten, a
re
47a
Il. NATIONWIDE PERMITS
Cumberland contends that the district court erred in deciding
that Cumberland’s activities in the Great Cedar Swamp were
not authorized under either of two nationwide permits.’
A. The Headwaters Nationwide Permit
Cumberland argues that it qualified under the “headwaters”
nationwide permit. That permit, codified in 1977 at 33 C.F.R.
Part 323, provides,’
(a) Discharges of dredged or fill material into the follow-
ing waters of the United States are hereby permitted for
purposes of Section 404, provided the conditions in par-
agraph (b) below are met:
(1) Non-tidal rivers, streams and their impoundments in-
cluding adjacent wetlands that are located above the head-
waters;
(b) For the purposes of Section 404, the following condi-
tions must be satisfied for any discharge of dredged or
fill material in waters described in paragraph (a) above;
(3) That the fill created by the discharge will be properly
maintained to prevent erosion and other non-point sources
of pollution. . . .
In his answers to the Corps’ interrogatories, Mr. Peck, on behalf of Cum-
berland, stated that Cumberland was not contending that its activities qualified
for any nationwide permit. During trial when Cumberland began trying to rely
on these nationwide permits, the Corps did not hold Cumberland to its admission
in the interrogatory, and so the district court addressed the question of applica-
bility of the nationwide permits. See 647 F.Supp. at 1177 n. 7.
*This nationwide permit was subsequently amended and recodified. See 33
C.F.R. § 330.5, as modified at 49 Fed.Reg. 39,478, 39,484 (Oct. 5, 1984).
The amendments to the permit are not at issue in this case.
48a
The term “headwaters is defined as
the point on a non-tidal stream above which the average
annual flow is less that 5 cubic feet per second. The
District Engineer may estimate this point from available
data using the mean annual area precipitation, area drain-
age basin maps, and the average runoff coefficient, or by
similar means.
33 C.F.R. § 323.2(i) (1977). Thus, so long as specified con-
ditions are met, the headwaters permit authorizes discharges
in areas within and adjacent to streams which flow at a rate
of less than five cubic feet per second.
In determining that the headwaters permit did not apply to
Cumberland’s activities, the court below found that the rate
of flow of the two streams on Cumberland’s property was
greater than five cubic feet per second. In support of this
finding are maps showing that, as early as 1974 or 1975, two
streams traversed the length of the property, and evidence that,
at the point where each stream left Cumberland’s property,
the rate of flow exceeded five cubic feet per second (5.6 cubic
feet per second on the Raven Brook, and 5.4 cubic feet per
second on the Bartlett Brook). Cumberland asserts that at some
point in its property the rate of flow for each stream drops
below the five cubic feet per second threshold. However, the
district court held that Cumberland never met its burden of
proof on this point.
Cumberland contends that in cross-examining the Corps’
expert, Mr. Manley it mathematically established how much
of its property should be covered by the headwaters permit.
But the district court was not persuaded that, without further
measurements or expert testimony, this evidence enabled it to
pinpoint the location where each stream’s flow rate dropped
n fa ee rt he te RT
49a
below five cubic feet per second. Manley’s own testimony
suggested that simple mathematics alone was insufficient to
fix that point. He testified that to do so would require study
of the topography maps to determine drainage patterns.
[1] Since Cumberland is seeking to qualify under this excep-
tion to the individual permit requirement, it had the burden of
persuading the court of the applicability of the headwaters
permit. See Riverside Irrigation District v. Andrews, 758 F.2d
508, 514 (10th Cir. 1985) (one seeking to qualify under nation-
wide permit must show the conditions for permit exist). Cum-
berland did not present any expert testimony to assist the court
in applying the mathematical formula, to locate on a map the
point where each stream fell below the threshold flow level,
and to delineate what wetlands adjacent to that point were
covered by the headwaters permit. Cumberland had no right
to expect that the unassisted court would or could complete
the mathematics, study the drainage patterns, and then apply
the formula to a map so as to establish the location of the
headwaters and the appropriate adjacent wetlands.
[2] The court, moreover, provided an alternative ground for
its determination that the headwaters permit did not apply. It
found that Cumberland had not complied with the condition
of the headwaters permit that the “fill created by the discharge
be properly maintained to prevent erosion and other non-point
sources of pollution.” 33 C.F.R. § 323.4-2(b)(3) (1977) (em-
phasis added).
It is clear, and the Court so finds, that the drainage ditches
erected, despite Cumberland’s best efforts, are not so
fixed in their banks as to prevent a significant amount of
silty erosion from entering the waters discharged.
647 F.Supp. at 1178. Cumberland urges us to construe the
Corps’ regulation to include only erosion shown to have an
50a
adverse or harmful effect on downstream waters. However,
when the Corps promulgated the nationwide permit, it said
nothing about requiring a showing of a specific adverse or
harmful effect from the erosion. See 42 Fed.Reg. 37,131, col.
2 (July 19, 1977). Here the court found a “significant” amount
of erosion, a finding that does not allow us to treat the erosion
as de minimis.* Under Cumberland’s view, it should be free
to cause erosion so long as the Corps is unable to trace a
downstream effect back to Cumberland as the single property
of origin. But this view ignores the possible cumulative harmful
effects of erosion from various different properties and sources.
Even were erosion from a particular project to be relatively
“minor,” its combined effect might be deleterious. Moreover,
it might be hard to establish its overall contribution to the total
harm. Since the headwaters permit is, in effect, an exception
to the statutory requirement of an individual permit, we believe
the Corps’ own, more narrow, interpretation of its regulatory
exception should prevail. See United States v. Huebner, 752
F.2d 1235, 1241 (7th Cir.) (upholding narrow interpretation
of statutory agricultural exemption f-om permit requirement),
cert, denied, USS. , 106 S.Ct. 62, 88 L.Ed.2d 50
(1985).
B. The Unasserted Jurisdiction Permit
[3] Cumberland contends that another nationwide permit —
the “unasserted jurisdiction” permit — validated its activities.
The district court held that the unasserted jurisdiction permit
does not apply to dredge and fill activities regulated under the
Clean Water Act, but rather applies only to activities regulated
* The district court found that a “significant” amcunt of erosion — not merely
some “minor” amount as Cumberland claims — was occurring from Cumber-
land’s activities. There was ample evidence, in the form of testimony and
pictures, to support the court’s finding of “significant” erosion.
:
Sla
under the River and Harbor Act. 647 F.Supp. at 1180. Since
Cumberland was prosecuted for violating the Clean Water Act,
the court found Cumberland’s reliance upon the unasserted
jurisdiction permit unavailing.
While finding this permit did not apply, the court was trou-
bled that the Corps’ 1982 regulations pertaining to the permit
were ambiguous — so much so, indeed, that an ordinary person
might then have believed, in the court’s view, that this nation-
wide permit did validate dredge and fill under the Clean Water
Act. Because of the 1982 ambiguity, the district court declined
to impose any civil fine for the entire period 1977 through
1984. 647 F.Supp. at 1184. The district court relied on case
law invalidating penal sanctions under excessively vague enact-
ments. Jd. Cumberland argues on appeal that the vagueness
of the 1983 regulation should, as well, relieve it from any
equitable duty to restore the 2,000-acre property to its 1977
state. To understand this argument — which we find meritless
it is necessary to examine the relevant statutes and regulations
in some detail.
Under section 10 of the River and Harbor Act, 33 U.S.C.
§ 403, the Corps has traditionally protected navigation by reg-
ulating the building of structures (piers, docks, etc.) within
navigable waters as well as dredge and fill activities in such
waters. Any proposed project which would interfere with navi-
gation has required a Corps River and Harbor Act permit. See
33 U.S.C. § 403 (creation of any obstruction in navigable
waters unlawful absent authorization by Corps).
Starting in 1968, the Corps began to use its authority under
the River and Harbor Act to regulate activities within navigable
waters which, while not necessarily obstructing navigation,
would cause pollution. See generally Zabel v. Tabb, 430 F.2d
199 (Sth Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct.
873, 27 L.Ed.2d 808 (1971). Yet while the Corps expanded
its use of the River and Harbor Act so as to cover activities
52a
causing pollution (as well as those obstructing navigation), it
did not (as with the Clean Water Act) claim a right to regulate
in waters that were not tidal or navigable in fact. See 33 C.F.R.
§ 322.2(a). Thus today, the Corps administers a dual permit
system under two different statutes — the River and Harbor
Act and the Clean Water Act — to regulate dredge and fill
activities that cause pollution in navigable waters; but in so
doing it construes the term “navigable waters” differently.
Under section 10 of the River and Harbor Act it construes the
term to embrace dredge and fill activities within actually navig-
able waters, while under section 404 of the Clean Water Act
it construes the term so as to regulate dredge and fill in waters
that are not only navigable in fact, but may include freshwater
wetlands.
In 1977, the Corps’ regulations under the River and Harbor
Act exempted from the individual permit requirement, “Struc-
tures or work completed before 18 December 1968 or in water-
bodies over which the District Engineer has not asserted juris-
diction provided there is no interference with navigation.” 33
C.F.R. § 322.4(g) (1977) (emphasis added). It is this so-called
“unasserted jurisdiction” nationwide permit which Cumberland
argues obviated any need for it to have obtained in 1977 and
thereafter an individual permit under the Clean Water Act.
Cumberland’s argument rests on a poorly worded recodifi-
cation of the unasserted jurisdiction nationwide permit that the
Corps issued in /982. This version could be read to imply that
the nationwide permit applied to activities regulated under both
section 16-of the River and Harbor Act and under section 404
of the Clean Water Act. The ambiguous version was in effect
only briefly as respects Cumberland, and there is no evidence
that anyone from Cumberland ever saw or relied on it, but
Cumberland argues that the standard is how it would appear
to “men of common intelligence” who had read it. 647 F.Supp.
at 1184 (citng Connally v. General Construction Co., 269
U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).
53a
The most obvious weakness in Cumberland’s argument is
that when, in 1977, its dredge and fill activities came under
the jurisdiction of the Clean Water Act, the Corps’ regulations
were entirely clear that the unasserted jurisdiction permit
applied only to activities regulated under section 10 of the
River and Harbor Act. Regulations governing the Clean Water
Act were codified at 33 C.F.R. Part 323. In contrast, the
regulations governing the Corps permit program under section
10 of the River and Harbor Act were codified at 33 C.F.R.
Part 322. In an introductory section, the Corps explained that
the regulations under part 322 applied only to section 10 of
the River and Harbor Act, noting, however, that certain ac-
tivities might be governed by more than one statutory or reg-
ulatory scheme.
This regulation prescribes, in addition to the general
policies of 33 C.F.R. 320.4 and procedures of 33 C.F.R.
Part 325 those special policies, practices and procedures
to be followed by the Corps of Engineers in connection
with the review of applications for Department of Army
permits to authorize structures or work in or affecting
navigable waters of the United States pursuant to section
10 of the River and Harbor Act of 1899 (33 U.S.C. 403)
(hereinafter referred to as section 10). See 33 C.F.R.
320.2(b). Certain structures or work in or affecting
navigable waters of the United States are also regulated
under other authorities of the Department of the Army.
These include discharges of dredged or fill material into
waters of the United States, including the territorial seas,
pursuant to section 404 of the Federal Water Pollution
Control Act Amendments of 1972 (33 U.S.C. 1344; see
33 C.F.R. Part 323) and . . . [listing other statutory Corps
authorities not relevant to this issue]. A Department of
54a
the Army permit will also be required under these addi-
tional authorities if they are applicable to structures or
_work in or affecting navigable waters of the United States.
Applicants for Department of the Army permits under
this part should refer to the other cited authorities and
implementing regulations for these additional permit re-
quirements to determine whether they also are applicable
to their proposed activities.
33 C.F.R. § 322.1 (1977).
The Corps thus made it ciear in 1977 and thereafter (until
1982), that the regulations under part 322 applied only to
activities regulated under section 10 of the River and Harbor
Act, and that applicants should refer to other sections of the
regulations, i.e., part 323 which governs the Clean Water Act,
to determine whether their proposed activities were regulated
under other statutory authorities. In these 1977 regulations,
the unasserted jurisdiction permit appeared only in part 322,
see 33. C.F.R. § 322.4(g) (1977), which governed only section
10 of the River and Harbor Act. No unasserted jurisdiction
permit appeared in part 323 which governed the permit program
under the Clean Water Act.
Hence in 1977, when Cumberland first should have applied
for a Corps permit pursuant to section 404 of the Clean Water
Act, the unasserted jurisdiction nationwide permit plainly did
not apply to Cumberland’s activities since that nationwide
permit clearly only applied to activities regulated under the
River and Harbor Act.
In 1982, the Corps published interim regulations applicable
to the permit programs under both the River and Harbor Act
and the Clean Water Act. The revised regulations contained
a new subsection, part 330, which codified all the previously
55a
promulgated nationwide permits under either statute, as well
as some newly proposed permits. The unasserted jurisdiction
permit was moved to part 330. See 33 C.F.R. § 330.3(b)
(1982). An introduction to part 330 stated
The nationwide permits are issued to satisfy the require-
ments of both § 10 of the River and Harbor Act of 1899
and § 404 of the Clean Water Act unless otherwise stated.
33 C.F.R. § 330.1 (emphasis added). The unasserted jurisdic-
tion permit, as recodified at 33 C.F.R. § 330.3 (1982), stated,
The following activities are permitted by a nationwide
permit which was issued on 19 July 1977 and need not
be further permitted:
(b) structures or work completed before 18 December
1968 or in waterbodies over which the District Engineer
was not asserting jurisdiction at the time the activities
occurred provided, in both instances, there is no interfer-
ence with navigation.
Thus the recodification of this permit did not expressly state
that it applied only to section 10 of the River and Harbor Act.
The omission of such a statement leads to Cumberland’s present
argument that, given the introductory section set out above,
the permit applied to activities regulated under both statutes,
since the recodified permit does not state otherwise.
The Corps replies that the unasserted jurisdiction permit was
simply moved to the new part 330, without any intention that
substantive changes be made, and that the permit continued
to apply only to section 10 of the River and Harbor Act. In
support of its position, the Corps points to language published
in the Federal Register when these revised ruies were first
56a
proposed. See 45 Fed. Reg. 62,732 (Sept. 19, 1980). In the
preamble to the proposed rules, the Corps stated that it would
discuss each of its proposed changes that were significant, but
that it would not discuss minor changes such as clarifications,
new references or rearrangements. Jd. The preamble went on
to discuss every newly proposed nationwide permit. Also,
whenever the scope of an existing nationwide permit was being
expanded, the preamble discussed the extent of the expanded
permit. For example, the preamble discussed an existing
nationwide permit for bank stabilization work which originally
applied only section 404 of the Clean Water Act. The preamble
explained that the permit was being expanded to cover section
10 River and Harbor Act activities as well. See 45 Fed.Reg.
62,735, col. 3 (Sept. 19, 1980). Significantly, the discussion
of permits that were being expanded never mentions the unas-
serted jurisdiction permit. Broadening the applicability of the
unasserted jurisdiction permit to include a different statute was
a major change. Had the Corps intended such a change, it is
only reasonable to suppose that it would have discussed it, as
it did in the case of the bank stabilization permit. We have
little difficulty agreeing with the Corps, therefore, that it did
not intend to extend coverage of the existing unasserted juris-
diction permit beyond the River and Harbor Act. Nonetheless,
the lower court was undoubtedly right that the 1982 regulations
was unclear on this score.
In November 1986, after the district court issued its decision
in this case, the Corps expressly clarified its intent by specify-
ing in the final regulations that the unasserted jurisdiction
permit only applies to section 10 of the River and Harbor Act.
See 51 Fed.Reg. 41,206 (Nov. 13, 1986).
Cumberland asserts that it must be allowed to rely upon the
unasserted jurisdiction permit because an ordinary person read-
ing the 1982 version of the Corps’ regulations would not have
known that this permit applied to only section 10 of the River
57a
and Harbor Act. Cumberland points to the district court’s ob-
servation that the Corps’ regulation regarding this permit was
so “opaque” that it vitiated Cumberland’s legal culpability,
leading the court, as a matter of discretion, to decline to impose
a fine from 1977 to 1984, in which latter year the Corps first
made it unequivocally clear that it asserted jurisdiction over
Cumberland.
But while the court would not impose a fine for this period
— a ruling from which the Corps has not appealed — we are
unconvinced that the Corps’ drafting errors in its 1982 regula-
tions provides a basis for exempting Cumberland from its
equitable duty to undo the consequences of illegal activities
commenced in 1977. When in 1977 Cumberland first came
under a duty to apply for a section 404 Clean Water Act permit,
the Corps’ regulations were perfectly clear that the unasserted
jurisdiction permit provided no exemption to Cumberland. At
the same time, the 1977 regulations unambiguously asserted
the Corps’ Clean Water Act jurisdiction over freshwater wet-
lands such as the Great Cedar Swamp.
It was only in 1982, after Cumberland had ignored and
actively violated the Clean Water Act for five years, that the
Corps recodified the regulations in such a way that a reasonable
person might have thought that the unasserted jurisdiction per-
mit covered Cumberland’s work. Two years later, in December
1984, the Corps notified Cumberland that it asserted jurisdic-
tion over the wetlands in question. This ended any exemption
that an “unasserted jurisdiction” permit, if applicable, could
have provided. Thus while Cumberland’s activities from 1977
through 1985 were, absent a permit, plainly illegal, it was
only for the brief period from 1982 to 1984 that any claim can
be made to the protection of an unasserted jurisdiction permit.°
* According to Cumberland’s own representations, it did no dredging and
filling at the site between the summer of 1983 and 1985. Since the ambiguous
58a
We note, moreover, that the district court found that even after
Cumberland was on notice, in 1984, that the Corps asserted
jurisdiction, making the question of an unasserted jurisdiction
permit irrelevant, Cumberland pressed forward in flagrant vio-
lation of the Clean Water Act. Given the inequitable behavior
on the part of Cumberland and the lack of any evidence of
reliance upon, or even knowledge of, the ambiguous regula-
tion, see note 2, supra, we find that this short period of theoret-
ical doubt cannot be used to excuse Cumberland from its equit-
able duty to reverse the harmful effects of its illegal activity.
We reject Cumberland’s contention that the unasserted juris-
diction permit sheltered its illegal activities in the Great Cedar
Swamp so as to relieve it from a duty to restore the property.
Il. THE INJUNCTIVE RESTORATION ORDER
[4] Cumberland next asserts that, on principles of equity,
the Corps should not be allowed to “retroactively” assert juris-
diction over its farmland, and so Cumberland should not have
to comply with the injunction ordering the restoration of the
Great Cedar Swamp to its 1977 condition. Cumberland asserts
that when it began farming the 2,000-acre property, it intended
to farm the entire property, and therefore it must be allowed
to retain, in farmland, the wetlands it has converted since
1977. Cumberland apparently views the Corps’ use of its en-
forcement authority under the Clean Water Act (albeit eight
years after Cumberland’s first violation) as an inequitable,
retroactive assertion of jurisdiction. Under Cumberland’s view,
since it got away with these violations for eight years, the
Corps is equitably foreclosed from enforcing the Clean Water
Act once it finally discovered Cumberland’s illegal activities.°
rule was promulgated in July of 1982, only a year’s activity at most could
have occurred under the purportedly permissive rule.
° Throughout this enforcement action Cumberland has not asserted, nor has
it pointed to, any statute of limitations which might preclude enforcement of
the Clean Water Act.
59a
There is no principle of equity that supports any such claim,
nor do the two cases cited by Cumberland, United States v.
Context-Marks, 729 F.2d 1294 (11th Cir. 1984), and Buc-
caneer Point Estates, Inc. v. United States, 729 F.2d 1297
(11th Cir. 1984), do so. In each of these cases a landowner
began developing property, using dredge and fill, in order to
build residential and/or marina facilities. The Corps sent letters
to each developer, stating that his activities must cease and
that he should obtain a Corps permit because the area being
developed was within the Corps’ jurisdiction. The developers
did_no further work on the projects in reliance upon these
letters. Subsequently, the Corps determined that the area being
developed was not in fact covered by the Corps’ regulatory —
authority and that the corps did not require permits for the
developers’ activity. Very shortly thereafter, however, the
Corps amended its regulations, expanding its jurisdiction to
cover the developer’s activities. The Corps then demanded
that the developers obtain a permit pursuant to section 404 of
the Clean Water Act. The Eleventh Circuit held that the two
developers would not be required to get a permit because the
evidence showed that if the Corps had not erroneously asserted
jurisdiction, and if the developers had not ceased their activities
in response to the Corps’ erroneous cease and desist order,
the two projects would have been completed prior to the prom-
ulgation of the Corps’ new regulations which expanded juris-
diction.
These two cases are altogether different from the present.
There, the developers would have completed their projects,
for which permits were not then required, had the Corps not
erroneously asserted jurisdiction. It was arguably inequitable
to allow the Corps to utilize its subsequently enhanced jurisdic-
tion to burden the stalled projects.
Such, however, is not the case with respect to Cumberland’s
activities in the Great Cedar Swamp. The Corps is not relying
60a
on a retroactive assertion of jurisdiction. The Corps had juris-
diction from 1977 on, its jurisdiction having been enlarged to
cover freshwater wetlands. Cumberland was accordingly re-
quired by law in 1977 and thereafter to obtain a Clean Water
Act permit. Cumberland never obtained a permit but continued
its dredge and fill activities in violation of law. The Corps is
not retroactively asserting jurisdiction, but rather is properly
seeking enforcement of the Clean Water Act from the date
that Cumberland first violated the act. Cumberland points to
no evidence that it would have converted the full 2,000 acres
prior to 1977, and that the Corps’ actions somehow delayed
implementation of that timetable.
There is no merit in Cumberland’s assertion that simply
because it planned, in 1972, eventually to convert the entire
2,000 acres of wetland to farmland, that it should be excused
from complying with the permit requirements of the Clean
Water Act which became applicable to Cumberland’s property
in 1977. Cumberland was then required by law to apply for
and obtain a permit but never did so. Cumberland’s unarticu-
lated future intentions for the property cannot be used to pre-
clude the application of the federal law.
Cumberland further contends that the court should not have
delved into the details of a restorative order, but should have
simply issued an order to prevent the further work and re-
manded the matter to the Corps for further administrative pro-
ceedings through an after-the-fact permit application. Proces-
sing such an after-the-fact permit would require an administra-
tive fearing which would ensure public participation. Cumber-
land argues that the Corps’ regulations evince a clear agency
policy that the program of regulating wetlands should consider
the full public interest by balancing the favorable and detrimen-
tal impacts of a proposed activity. See 33 C.F.R. § 320. 1(a).
Cumberland asserts that such a balancing of public interests can
be best accomplished through an after-the-fact permit process.
6la
The regulations that Cumberland points to as evincing a
policy of public participation through an administrative hearing
are primarily concerned with permit applications for proposed
projects that will occur in wetlands.’ The present circumstances
do not easily fit within the frame of a proposal stage proceeding.
In the latter, there is more time to solicit public input and to
weigh competing values before authorization of the proposed
project. Here, there was a serious, ongoing violation of the
Clean Water Act, as to which the Corps’ regulations, found
at part 326, “Enforcement, Supervision and Inspection,” are
more on point. Under part 326, the regulations make it clear
that the Corps will consider an after-the-fact permit only if the
violator has completed interim remedial work which the Corps
deems necessary to protect public resources. In the present
case, Cumberland refused to comply with the Corps’ interim
remedial order, which was designed to restore the area to its
1977 wetland condition, “unless and until some higher author-
ity determines that to be an appropriate result.” Therefore, the
Corps refused to consider an after-the-fact permit for Cumber-
land’s activities.
The Corps’ enforcement regulations’ subsection entitled
“Administrative action” states,
Remedial work. (1) The district engineer shall determine
whether as a result of the unauthorized activity, life, prop-
erty or important public resources are in serious jeopardy
and would require expeditious measures for protection.
"While primarily designed for proposed projects, these same regulations do
apply to an after-the-fact permit process. However, as the regulations make
clear, see infra, the Corps considers such after-the-fact applications only after
any environmental damage has been ameliorated through implementation of
necessary interim protective measures. Thus, for those after-the-fact applica-
tions where the violator has protected against further environmental damage.
the Corps can take the time to convene hearings to consider the public's views.
Such is not the case here. See infra.
62a
Such measures may range from minor modification of
the existing work to complete restoration of the area in-
volved. . . . If the district engineer determines that im-
mediate remedial work is required, he shall issue an ap-
propriate order describing the work, conditions and time
limits required to provide satisfactory protection of the
resource.
33 C.F.R. § 326.3(b). Thus the district engineer is expected
to issue such remedial orders as he deems necessary, and such
orders may range, as necessary, from minor modifications to
complete restoration of the wetland, which was the case here.
Under the subsection entitled “Acceptance of an after-the-
fact application,” 33 C.F.R. § 326.4(c), the regulations clearly
require the remedial work be completed before the Corps will
accept an after-the-fact permit application.
Upon completion of appropriate remedial work, if any,
the district engineer shall accept an application for an
after-the-fact permit for all unauthorized activities unless:
(1) Civil action to enforce an order issued pursuant to
§ 326.2 or § 326.3(b) [remedial orders] is required. . . .
The regulations also clearly set out the Corps’ enforcement
policy that in exceptional circumstances, i.e., knowing, fla-
grant, repeated or substantial impact violations of the Clean
Water Act, the Corps shall seek civil penalties, as was done
in this case. The regulations state that the district engineer
may recommend to the United States Attorney that a complaint
seeking such civil penalties to be filed and that “[a)n after-the-
fact application shou!d not be accepted until the enforcement
action is completely resolved.” 33 C.F.R. § 326.4(c)(4).
Thus, contrary to Cumberland’s assertions, the Corps was
acting well within its enforcement policies as articulated in its
63a
regulations. When Cumberland refused to comply with the
Corps’ remedial order, and instead continued further destruc-
tion of the wetland, the Corps was within its rights, and indeed
was left with no other recourse, but to seek judicial enforcement
of the remedial restoration order, rather than to process ad-
ministratively an after-the-fact permit.
Cumberland’s reliance upon the primary jurisdiction doc-
trine is similarly misplaced. The doctrine of primary jurisdic-
tion helps to define the relationship between courts and ad-
ministrative agencies by recognizing that if an agency ad-
judicatory proceeding is ongoing, courts will usually not inter-
fere until the administrative process is complete. By suspending
the judicial process, appropriate issues can be referred to the
agency for its special expertise, and courts will not prematurely
interfere with the administrative process. See United States v.
Western Pacific Railroad Co., 352 U.S. 59, 63-64, 77 S.Ct.
161, 165, 1 L.Ed.2d 126 (1956). As discussed above, however,
under the Corps’ regulations no further administrative proceed-
ings are pending, nor can the Corps entertain any further permit
proceeding until Cumberland complies with the interim orders,
which Cumberland refused to do. Thus the district court was
not impermissibly interfering with the Corps’ administrative
process. Rather it was the Corps itself which sought the aid
of the district court after Cumberland had ignored the Corps’
cease and desist order and had refused to implement the pro-
tective measures. Moreover, in fashioning the remedy, the
court had the full benefit of the Corps’ expertise through the
Corps’ proposed restoration plan, which the court adopted with
only a few changes.
Cumberland presents no authority for the proposition that
the district court lacked authority to issue a restoration order.
The Clean Water Act authorizes the commencement of a civil
action “for appropriate relief, including a permanent or tempo-
rary injunction.” 33 U.S.C. § 1319(b) (1983). We believe that
64a
the district court had authority to issue such restorative orders
so as to effectuate the stated goals of the Clean Water Act “to
maintain the chemical, physical, and biological integrity of
the Nation’s waters,” 33 U.S.C. § 1251 (1983). See Wein-
burger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798,
72 L.Ed.2d 91 (1982) (under section 1319 of Clean Water
Act, district court not required to order injunctive relief but is
permitted to exercise equitable discretion to order relief that
will achieve compliance with the act). In United States v.
Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d
903 (1960), the Supreme Court held that under section 10 of
the River and Harbor Act, district courts had the authority to
issue injunctive restoration orders despite the lack of explicit
statutory authority to do so.
Congress has legislated and made its purpose clear; it has
provided enough federal law in section 10 from which
appropriate remedies may be fashioned even though they
rest on inferences. Otherwise we impute to Congress a
futility inconsistent with the great design of this legisla-
tion.
Id. at 492, 80 S.Ct. at 890.
Cumberland further attacks the substance of the restoration
order, arguing that it is speculative and untested, will cause
harm to third parties and is inequitable. The district court
issued an injunctive order that the converted area be restored
to its 1977 condition after finding that the restoration order
(1) would confer maximum environmental benefits; (2) was
achievable as a practical matter; and (3) bore an equitable
relationship to the degree and kind of wrong that it is intended
to remedy.* See United States v. Sexton Cove Estates, 526
*The government did not object to the district court's use of this three part
test for determining the appropriateness of a restoration order. On appeal, the
——- 1 ee re a
65a
F.2d 1293, 1301 (Sth Cir. 1976); United States v. Weisman,
489 F.Supp. 1331, 1343 (M.D.Fla. 1980).
[5] We review an award of injunctive relief only for an
abuse of discretion. See Lemon v. Kurtzman, 411 U.S. 192,
200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973); Pino v.
Protection Maritime Insurance Co., 599 F.2d 10, 16 (ist Cir.),
cert. denied, 444 U.S. 900, 100 S.Ct. 210, 62 L.Ed.2d 136
(1979). Any findings of fact, upon which the court’s exercise
in discretion is based, will stand unless clearly erroneous. See
Fortin v. Commissioner of Massachusetts Department of Pub-
lic Works, 692 F.2d 790, 794 (1st Cir. 1982). We find no abuse
of discretion here.
[6] The district court carefully considered the possible det-
rimental impact of the proposed order, but found that the
beneficial aspects of the restoration order outweighed the pos-
sible detrimental aspects. The court found that restoration of
the site to its 1977 status would assist in flood control; would
significantly improve the functioning of the area as a biological
filter; and would have a direct improvement on wildlife habitat.
The court found that the restoration was in the public and
national interest and would maximize environmental benefits.
The district court further found that the restoration order
proposed by the Corps was “technically competent and innova-
tive.” 647 F.Supp. at 1183. Cumberland’s contention that the
district court abused its discretion by ordering a “speculative”
plan is unfounded. The court was presented with testimonial
evidence that the first two facets of the plan, reestablishing
the wetland topography of hollows and hummocks, and raising
the water table to 1977 levels were necessary in order to restore
the wetland. The third step of spreading strips of vegetation,
government urges that a less demanding test is appropriate. However, the
government's acquiescence on this point before the district court forecloses
the issue here, and we shall not address it. See Johnston v. Holiday Inns, Inc.,
595 F.2d 890, 894 (ist Cir. 1979).
- 66a
taken from a nearby swamp so as to provide for the regeneration
of diverse species is, as the court found, innovative. However,
it is not so speculative as to taint the injunctive order. The
Corps presented testimony by an ecologist who had been in-
volved in a great number of wetland restoration projects, some
of which used the technique of borrowing plant material from
nearby wetlands to be used as a plant source. He testified
concerning the successes reached in these prior restoration
projects. The ecologist testified that he thought the restoration
plan in this case was achievable as a practical matter, and was
an “‘average plan in terms of the degree of difficulty” as com-
pared with other restoration plans he had worked on. While
none of the prior successful restorations dealt with exactly the
same situation, clearly the court had enough evidence before
it to evaluate the practicality of this “innovative” approach.
Cumberland asserts that it would be inequitable to enforce
the order because, according to Cumberland, it will have a
detrimental effect on the nearby cranberry bogs and on five
houses that were built near the wetland after it was drained
and converted to farmland. The court was well aware of these
potential problems, and adequately protected those interests.
The Corps presented testimony concerning the potential detri-
mental impacts on the cranberry bogs. The court modified the
Corps’ proposed plan, altering the locations of proposed “check
dams,” in order to better protect the nearby cranberry growers.
As to the nearby houses, the court was sensitive to possible
adverse effects, but felt the balance should be struck in favor
of enforcing the Clean Water Act which had been violated
since 1977. We note that through testimony and an elevation
survey, the Corps presented evidence that the possibility of
detrimental effects on the houses from the raised water table
is minimal.’
* The Corps submitted, as part of its memorandum in support of the restoration
order, a surVey of elevations of the recently built houses, to which Cumberland
67a
Finally, Cumberland asserts that it is inequitable to enforce
the restoration plan because it will have the effect of inundating
its valuable farm fields. The district court was careful to protect
any fields Cumberland had converted prior to 1977, modifying
the proposed plan to better protect those fields. To be sure,
in the area converted since 1977, the restoration order places
a heavy burden on Cumberland. However, Cumberland has
no one but itself to blame for that burden.
Had Cumberland complied with the Clean Water Act when
the Act first became applicable to its activities in 1977, no
such burdensome order reversing the many years of illegal
activity would have been necessary. Moreover, Cumberland’s
intentional, unlawful conversion activities continued even after
the Corps actively tried to get Cumberland’s cooperation in
complying with the law. We believe the district court did not
err in finding that the restoration order bore an equitable re-
lationship to the degree and kind of wrong which it is intended
to remedy.
Affirmed.
did not object. The survey showed that the lowest base elevation of the houses
was 41.89 NGVD (National Geodetic Vertical Datum, essentially the elevation
above designated sea level). Testimony by one of Cumberland’s witnesses was
that the cellars of these houses would extend seven feet below ground, /.e.,
at approximately 34 feet of elevation, and that septics would extend six feet
below the surface, i.e., approximately 35 feet of elevation. Testimony at trial
showed that the water table on Cumberland’s land would be raised, by filling
ditches and constructing check dams, to approximately 26 to 28 feet, or perhaps
during flood stages to 30 feet of elevation.
68a
Appendix C.
§ 1344. Permits for dredged or fill material
(a) Discharge into navigable waters at
specified disposal sites
The Secretary may issue permits, after notice and opportu-
nity for public hearings for the discharge of dredged or fill
material into the navigable waters at specified disposal sites.
Not later than the fifteenth day after the date an applicant
submits all the information required to complete an application
for a permit under this subsection, the Secretary shall publish
the notice required by this subsection.
(b) Specification for disposal sites
Subject to subsection (c) of this section, each such disposal
site shall be specified for each such permit by the Secretary
(1) through the application of guidelines developed by the
Administrator, in conjunction with the Secretary, which
guidelines shall be based upon criteria comparable to the
criteria applicable to the territorial seas, the contiguous zone,
and the ocean under section 1343(c) of this title, and (2) in
any case where such guidelines under clause (1) alone would
prohibit the specification of a site, through the application
additionally of the economic impact of the site on navigation
and anchorage.
(c) Denial or restriction of use of defined
areas as disposal sites
The Administrator is authorized to prohibit the specification
(including the withdrawal of specification) of any defined area
as a disposal site, and he is authorized to deny or restrict the
use of any defined area for specification (including the with-
drawal of specification) as a disposal site, whenever he deter-
69a
mines, after notice and opportunity for public hearings, that
the discharge of such materials into such area will have an
unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and breed-
ing areas), wildlife, or recreational areas. Before making such
determination, the Administrator shall consult with the Secre-
tary. The Administrator shall set forth in writing and make
public his findings and his reasons for making any determina-
tion under this subsection.
(d) “Secretary” defined
The term “Secretary” as used in this section means the
Secretary of the Army, acting through the Chief of Engineers.
(e) General permits on State, regional, or nationwide basis
(1) In carrying out his functions relating to the discharge
of dredged or fill material under this section, the Secretary
may, after notice and oportunity for public hearing, issue gen-
eral permits on a State, regional, or nationwide basis for any
category of activities inovlving discharges of dredged or fill
material if the Secretary determines that the activities in such
category are similar in nature, will cause only minimal adverse
environmental effects when performed separately, and will
have only minimal cumulative adverse effect on the environ-
ment. Any general permit issued under this subsection shall
(A) be based on the guidelines described in subsection (b)(1)
of this section, and (B) set forth the requirements and standards
which shall apply to any activity authorized by such general
permit.
(2) No general permit issued under this subsection shall be
for a period of more than five years after the date of its issuance
and such general permit may be revoked or modified by the
Secretary if, after opportunity for public hearing, the Secretary
determines that the activities authorized by such general permit
70a
have an adverse impact on the environment or such activities
are more appropriately authorized by individual permits.
(f) Non-prohibited discharge of dredged or fill material
(1) Except as provided in paragraph (2) of this subsection,
the discharge of dredged or fill material—
(A) from normal farming, silviculture, and ranching
activities such as plowing, seeding, cultivating, minor
drainage, harvesting for the production of food, fiber,
and forest products, or upland soil and water conservation
practices;
(B) for the purpose of maintenance, including
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 struc-
tures;
(C) for the purpose of construction or maintenance of
farm or stock ponds or irrigation ditches, or the mainte-
nance of drainage ditches;
(D) for the purposes of construction of temporary
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 maintenance of
farm roads or forest roads, or temporary roads for moving
mining equipment, where such roads are constructed and
maintained, in accordance with best management prac-
tices, to assure that flow and circulation patterns and
chemical and biological characteristics of the navigable
waters are not impaired, that the reach of the navigable
waters is not reduced, and that any adverse effect on the
aquatic environment will be otherwise minimized;
Tla
(F) resulting from any activity with respect to which
a State has an approved program under section 1288(b)(4)
of this title which meets the requirement of subparagraphs
(B) and (C) of such section,
is not prohibited by or otherwise subject to regulation under
this section or section 1311(a) or 1342 of this title (except for
ethiucnt standards or prohibitions under section 1317 of this
title).
(2) Any discharge of dredged or fill material into the navi-
gable 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.
(g) State administration
(1) The Governor of any State desiring to administer its
own individual and general permit program for the discharge
of dredged or fill material into the navigable waters (other than
those waters which are presently used, or are susceptible to
use in their natural condition or by reasonable improvement
as a means to transport interstate or foreign commerce shore-
ward to their ordinary high water mark, including all waters
which are subject to the ebb and flow of the tide shoreward
to their mean high water mark, or mean higher high water
mark on the west coast, including wetlands adjacent thereto)
within its jurisdiction may submit to the Administrator a full
and complete description of the program it proposes to establish
and administer under State law or under an interstate compact.
In addition, such State shall submit a statement from the attor-
ney general (or the attorney for those State agencies which
have independent legal counsel), or from the chief legal officer
72a
in the case of an interstate agency, that the laws of such State,
or the interstate compact, as the case may be, provide adequate
authority to carry out. the described program.
(2) Not later than the tenth day after the date of the receipt
of the program and statement submitted by any State under
paragraph (1) of this subsection, the Administrator shall pro-
vide copies. as such program and statement to the Secretary
and the Secretary of the !ntcrior, aeting through the Miiccior
of ine United Statcs Fish and Wildlife Service.
(3) Not later than the ninetieth day after the date of the
receipt by the Administrator of the program and statement _
submitted by any State, under paragraph (1) of this subsection,
the Secretary and the Secretary of the Interior, acting through
the Director of the United States Fish and Wildlife Service,
shall submit any comments with respect to such program and
statement to the Administrator in writing.
(h) Determination of State’s authority to issue permits
under State program; approval; notification;
transfers to State program
(1) Not later than the one-hundred-twentieth day after the
date of the receipt by the Administrator of a program and
statement submitted by any State under paragraph (1) of this
subsection, the Administrator shall determine, taking into ac-
count any comments submitted by the Secretary and the Sec-
retary of the Interior, acting through the Director of the United
States Fish and Wildlife Service, pursuant to subsection (g)
of this section, whether such State has the following authority
with respect to the issuance of permits pursuant to such pro-
gram:
(A) To issue permits which—
(i) apply, and assure compliance with, any applicable
requirements of this section, including, but not limited
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to, the guidelines established under subsection (b)(1)
of this section, and sections 1317 and 1343 of this title;
(ii) are for fixed terms not exceeding five years; and
(iii) can be terminated or modified for cause includ-
ing, but not limited to, the following:
(I) violation of any condition of the permit
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