Petition for Writ of Certiorari — Brace v. United States

Court, U.8,

FILED

9 47669 apr 10 1995

QEFICE BF THE CLERK

ju The

Supreme Court of the Untied States

OCTOBER TERM, 1994

ROBERT BRACE -.ND ROBERT BRACE FARMS, INC.,

a Pennsylvania corporation,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Henry McC. Ingram

Counsel of Record

David J. Porter

BUCHANAN INGERSOLL

PROFESSIONAL CORPORATION

600 Grant Street, 58th Floor

Pittsburgh, PA 15219

(412) 562-8800

Counsel for Pe.itioner

aia a

i

QUESTIONS PRESENTED

1. Whether, pursuant to 33 U.S.C. § 1344(f)(1)(A), a

farmer’s conversion of pastureland into crop-bearing fields is

“normal farming” activity exempt from the Section 404 permit

requirements of the Clean Water Act.

2. Whether the Army Corps of Engineers’ regulation

providing that “[a] conversion of a section 404 wetland to a non-

wetland is a change in use of an area of waters of the United

States,” 33 C.FR. § 323.4(c), is an overbroad and unauthorized

construction of the “recapture provision” of the Clean Water Act,

33 U.S.C. § 1344 (f)(2).

ii

RULE 29.1 STATEMENT AND

PARTIES TO THE PROCEEDING

Petitioners Robert Brace and Robert Brace Farms, Inc. have no

parent or non-wholly owned subsidiary corporations.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............:c:essseceeessesescseesseeeeseeteesess i

RULE 29.1 STATEMENT AND PARTIES

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STATUTORY PROVISIONS INVOLVED .................::0::010000: 2

a. assamtenasniomebarneenevereincenesonsrwereneneinnese 2

A. Factual Background ....................ccscesscesssssrrseseseeeees 2

B. The Statutory Framework ............:.:::ccseseeseeeseeeeeeees 4

C. The District Court’s Decision ................c:ceeeeseeeeeeees 6

D. The Court of Appeals’ Decision ..............::.:seeeee 8

REASONS FOR GRANTING THE PETITION ................-.+ 8

I. THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD

CIRCUIT IS ERRONEOUS ...............ccccccrcesescesseees 9

A. Brace’s Activities On His Farm Meet The

Criteria For The “Normal Farming Activities”

Exemption From Section 404’s Permit

ReEQUIFEMEMIE ...........ccccesccrsereeeenesenceseseesesententens 9

1. Brace Continued An Ongoing Farming

OPETALION .........cersccserersenrsereresseroreneenees 10

2. Brace Was Engaged In “Normal

Farming” ACctivitieS .............-:csesseeesees 12

3. Brace Engaged In Normal Farming

Activity On A Continual Basis .............. 15

B. Brace Did Not Bring The Site Into A Use To

Which It Was Not Previously Subject ............ 17

COINTEAISIONN .nsisecerceeceeccorocesevesssereeee FSC SRIECRR ON Oe 23

iv

TABLE OF AUTHORITIES

Page

Avoyelles Sportsmen’s League, Inc. v. Marsh,

FES FAG BT COC, BOD nncrsesnsenncecsersesnen 11, 19, 20

Bayou Marcus Livestock & Agricultural Co. v. U.S.

Environmental Protection Agency,

No. 88-30275, 1989 WL 206151

CEs FEA RG a RI inccocsninsseonecnscstimsndiapsbimnsatipibcninsn 20

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

Ti ee Cr titi cic siesecistinblemadlaens 22

Child v. United States,

$51 F Supp. 1527 (D. Utah 1994) ...........cccccccsessereeenes 6

Conant v. United States,

78 F.2d 1008 (1ith Cir. 1966) .....0.....<.....cececceneees 19, 20

Environmental Defense Fund v. Tidwell,

837 F. Supp. 1344 (ED. N.C. 1992) ..............cccceseeees 19

Equal Employment Opportunity Comm’n v. McCarthy,

Fe A 6 CR ie CE aii ieee nnincnmnsiaieceenttonsne 14

Natural Resources Defense Council v. Callaway,

Se Be Sem Ta GEIR BB TAD hnsctiaserincsccsscsvensicccntsies 3

Pittston Coal Group v. Sebben,

ee: Se eieiiiaiinlsah Si cinninoesicniensnnetistaaons 22

Vv

TABLE OF AUTHORITIES—continued

Page

Route 26 Land Dev. Ass’n v. United States,

753 F. Supp. 532 (D. Del. 1990),

aff'd without opinion, 961 F. 2d 1568

RTE MEE Ie a a ee 6

Southern Pines Associates v. United States,

Pe ee FO I ae FI orice cicrnsncncacenneccsedscersencnace 6

Stellacom, Inc. v. United States,

he Gas Re Gls HED xccvetcnencatceusiuvsiesnclonsuniassins 14

United States v. Akers,

785 F.2d 814, 479 U.S. 828 (1986) oo... eeeeeeee. 21

United States v. Cumberland Farms of Connecticut, Inc.,

647 F. Supp. 1166 (D. Mass 1986) .0....0.. eee 11, 20

United States v. Huebner.

752 F.2d 1235 (7th Cir. 1985) ............... Spibiaenhen 19, 20

United States v. Larkins,

657 F. Supp. 76 (W.D. Ky. 1987),

aff'd. 852 F.2d 189 (6th Cir. 1989) oo 19

United States v. Riverside Bayview Homes, Inc.,

A a I I icin intatdan adiesceetinneanevasaadésinton 3

vi

TABLE OF AUTHORITIES—continued

Statutes 2nd Regulations: it

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33 CER. § SISA) «..22.reccccccsssvescecsecses 5, 9, 15, 16, 17, 18

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4 A Legislative History of the Clean Water Act of 1977,

(Senate Debate of August 4, 1977) ............c:.ccec0e 13, 16

Iu The

Supreme Court of the United States

OCTOBER TERM, 1994

No. -

ROBERT BRACE AND ROBERT BRACE FARMS, INC.

a Pennsylvania corporation,

Petitioners,

Vv.

UNITED STATES OF AMERICA, .

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 19a-41a)

is reported at 41 F.3d 117 (3d Cir. 1994). The opinion of the

district court (App., infra,la-18a) is unreported.

JURISDICTION

The judgment of the United States Court of Appeals for the

Third Circuit was entered on November 22, 1994 and a timely

petition for rehearing was denied on January 9, 1995. App.,

2

infra, 42a. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory and regulatory provisions relevant to this case

are set forth at App., infra, 43a-44a.

STATEMENT

This appeal involves a judicial and regulatory override of

federal legislation exempting normal agricultural activities

from the permit requirements of the Clean Water Act

(“CWA”), 33 U.S.C. § 1251 et seq. Through misconstruction,

disregard of relevant facts and inappropriate deference to un-

reasonable agency regulations, the court of appeals has further

muddied federal wetlands jurisprudence to the detriment of

the Nation’s farmers — a community which Congress specifi-

cally intended to spare, under routine circumstances, from the

burdens of a complex regulatory program.

A. Factual Background

Petitioner Robert Brace (“Brace”) farms approximately 600

acres of farm land in Erie County, Pennsylvania. Among

Brace’s land holdings is his family’s 140 acre homestead farm

that he purchased from his father in 1975. This land has been

continuously farmed by the Brace family since the 1930s. This

litigation concerns Brace’s attempt to refurbish and improve

agricultural drainage on the homestead farm so as to integrate

that farm into his primary farming business operation, which is

producing row crops. Brace’s efforts have been frustrated by

federal enforcement of wetlands regulations because approxi-

mately 30 acres of the homestead farm are considered to be

“wetlands” and subject to regulation by the U.S. Army Corps of

Engineers (“COE”) as navigable waters of the United States.

Prior to 1977, Brace’s father and brother used the home-

stead farm including the area now referred to as the Site for pas-

turing cows and horses. In 1976, Brace decided to improve the

3

farm by updating and expanding the existing drainage system,

parts of which had fallen into disrepair. Following a plan pre-

pared by the Agricultural Stabilization and Conservation Ser-

vice, an agency of the United States Department of Agriculture,

Brace began in 1977 to clean and improve the drainage system.

As resources permitted, Brace reopened a drainage channel to

allow the water to flow in its natural direction and replaced or

installed drainage tile throughout the 140 acre farm.' In so

doing, Brace did not introduce any new or foreign fill onto the

Site. -The only “discharge” in this case was Brace’s

“sidecasting” or redepositing of soil or sediment which had

washed off his farmland into the drainage ditches.

The improvements to the drainage system were completed

and the farm’s integrated drainage system was operating in

1977.2 As the district court noted, “The drainage system im-

pacts the ability to produce crops on all parts of Brace’s prop-

erty; without such a system, the property is not suitable for

farming [production of row crops] because of soil conditions.”

' The court of appeals erroneously stated that Brace installed

four miles of plastic tubing within the Site. App., infra, 36a,

39a. In fact, the tubing was installed throughout the entire 140

acre homestead farm and within some neighboring farms.

? COE jurisdiction did not even extend to headwaters areas

until, following the decision in Natural Resources Defense

Council v. Callaway, 392 F. Supp. 685 (D.D.C. 1975), the

Corps in 1977 promulgated its final rule defining the statutory

term “navigable waters” to include wetlands. 42 Fed. Reg.

37122 (1977). By then Brace had already completed cleaning

the drainage ditches and was augmenting the farm’s existing

drainage system. The legal confusion surrounding the COE’s

expansive definition of “navigable waters” was not finally

dispelled until this Court’s decision in United States v.

Riverside Bayview Homes, Inc, 474 U.S. 131 (1985), by which

time Brace had nearly completed improving the farm and

would soon begin planting row crops.

4

App., infra, 5a. By late-1986, Brace had planted rye, oats and

hay on portions of the thirty acre Site.

The United States Environmental Protection Agency

(“EPA”) and COE became aware of Brace’s activities in May

1987. Following a brief investigation, EPA and COE issued ad-

ministrative orders on July 15 and 23, 1987 and May 3, 1988,

alleging violations of Section 404 of the CWA and ordering

Brace to cease and desist all discharge activities on the home-

stead farm. The administrative orders further required Brace to

plug with concrete all main drainage tiles servicing the entire

homestead farm and restore the areas of the farm now declared

to be federally regulated wetlands to their “natural state.” Brace

immediately ceased all activities in the area he understood to be

at issue except for mowing hay.

B. The Statutory Framework

Section 301(a) of the CWA prohibits the discharge of any

pollutant into navigable waters of the United States,’ unless the

discharge is authorized by a permit. 33 U.S.C. § 1311(a). Sec-

tion 404 of the CWA authorizes the Secretary of the Army,

through the COE, to issue permits “for the discharge of dredged

or fill material into the navigable waters at specified disposal

sites.” 33 U.S.C. § 1344(a) and (d).

3EPA and COE have defined the term “waters of the United

States” to include “wetlands.” 33 C.F.R. § 328.3(b); 40 C.F.R.

§ 232.2(r). Prior to trial in the district court, the parties to tlis

case stipulated as follows: “At the time of the Defendants’

alleged ‘discharges,’ the approximately thirty-acre site that is

the subject of this lawsuit was “wetlands” as defined at 33

C.F.R. § 328.3(b), and 40 C.FR. § 232.2(r).” For the purposes

of asserting his claim of exemption, Brace was willing to

concede that the Site exhibited the physical characteristics

which brought it within the technical definition of “wetlands”

then employed by federal wetlands regulators.

=“. ee

5

Specific exemptions to the permit requirements are con-

tained in Section 404(f) of the CWA.

Under that section, a permit is not required to discharge

dredged or fill material resulting from any of six categories of

activities, including farming:

(1) [T]he 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...

(C) for the purpose of construction or maintenance of farm or

stock ponds or irrigation ditches, or the maintenance of

drainage ditches...

is not prohibited by or otherwise subject to regulation under this

section...

33 U.S.C. § 1344(f)(1)(A).

The COE and EPA have promulgated regulations narrowly

constricting the “normal farming” exemption. Under these

regulations, in order to constitute “normal farming activity,” the

activity:

must be part of an established (i.e., on-going) farming,

silviculture and ranching operation and must be in

accordance with definitions in § 323.4(a)(1)(iii)....

Activities which bring an area into farming, silviculture, or

ranching use are not part of an established operation. An

operation ceases to be established when the area on which

it was conducted has been converted to another use or has

lain idle so long that modifications to the hydrological

regime are necessary to resume operations.

33 C_FR. § 323.4(a)(1)(ii).

Section 404 also contains a “recapture provision,” an ex-

ception to the enumerated activities for which no permit is re-

quired in order to discharge dredged or fill material into the

navigable waters. Under Section 404(f)(2),

a Tr ma

6

Any discharge of dredged or fill material into the

navigable waters incidental to any activity having as its

purpose bringing an area of the navigable waters into a use

to which it was not previously subject, where the flow or

circulation of navigable waters may be impaired or the

reach of such waters be reduced, shall be required to have

a permit under this section.

33 U.S.C. § 1344(f)(2).

Thus, Section 404(f) establishes a two-part test for whether

a party may discharge fill material without enduring the permit

application process: the party may engage in unpermitted dis-

charge of fill material (1) so long as its activity falls within one

of the six exempt categories of activity, unless (2) the activity

brings the wetlands area into “a use to which it was not previ-

ously subject” and impedes the flow of navigable waters.

C. The District Court’s Decision

More than three years after federal regulators issued their

administratived orders, on October 4, 1990, the United States

filed suit against Brace in the United States District Court for

the Western District of Pennsylvania to enforce the order, alleg-

ing violations of the permit requirement section of the CWA.*

The district court exercised it’s jurisdiction pursuant to 28

U.S.C. §§ 1331, 1345, 1355 and 33 U.S.C. § 1319 (b).

* From the outset of the government’s enforcement proceeding

against him in 1987, Brace has asserted that his acitvities on the

Brace homestead farm were exempt from federal regulation

under Section 404 of the CWA. However, pre-enforcement

review of CWA administrative orders is unavailable, see South

Pines Associates v. United States, 912 F.2d 713, 717 (4th Cir.

1990); Child v. United States, 851 F. Supp. 1527 (D. Utah

1994); Route 26 Land Dev. Ass’n v. United States, 753 F. Supp.

532, 540 (D. Del. 1990), aff’d without opinion, 961 F.2d 1568

(3d Cir. 1992), and COE regulations preclude processing “after

the fact” permit applications. See 33 C.F.R. 326.3(e) and App.,

infra, 8a. Moreover, EPA terminated a related administrative

7

Following a four day bench trial, the district court entered

judgment in favor of Brace. The district court’s decision was

supported by, inter alia, the following findings of fact and con-

clusions of law:

¢ Since 1977 Defendants’ activities on the site have

consisted only of normal farming activities,

maintenance of the existing drainage system, and

activities to enhance and conserve the upland soil and

water on the farm property. App., infra, 8a.

* [T]he subject site was during the entire period of time

that ownership rested in the Brace family, an integral

part of an established and on-going farm and

ranching operations, and Defendants’ activities

during the time frame of 1985-87 did not bring a new

area into the operation. App., infra, 9a.

+ This case involves a thirty acre site that has been part

of an ongoing farming operation of the Brace family

for more than half a century. The land is not being

converted to a use to which it was not previously

subject[.] App., infra, 16a.

* Under the exemption provisions of the CWA, the

activities of Brace and Brace Farms do not require a

permit because they constitute: (a) normal farming

civil penalty action against Brace in which he claimed the

agricultural exemption. App., infra, 7a. Therefore, Brace had

no opportunity “formally” to claim the exemption until the

United States initiated litigation in 1990 and the district court

found his activities to be exempt in December 1993. A system

that compels a farmer to wait almost ten years to have his day

in court is, it is respectfully submitted, badly in need of

adjustment. Ensnarling farmers in such a regulatory morass is

surely not what Congress intended when enacting the normal

farming activity exemption to the Section 404 permit

requirements. See fooxenotes 6 and 7, infra.

8

activities; (b) upland soil and water conservation

practices; and, (c) maintenance of drainage ditches.

App., infra, 16a.

D. The Court of Appeals’ Decision

The United States Court of Appeals for the Third Circuit

reversed. In an opinion written by Judge Cowen, the court of

appeals construed the statutory term “normal farming activi-

ties” so narrowly that, petitioners contend. it eviscerated the

agricultural exemption. The court deprecated the historical

and geographical context of Brace’s activities, and discounted

the normal practice of Erie County farmers, while overriding

the contrary factual determination of the district court, in

holding that Brace’s activities did not constitute “normal ag-

ricultural activity.” App., infra, 29a-38a.

The courl of appeals further determined for purposes of the

CWA’s “recapture” provision that Brace forfeited any agricul-

tural exemption by virtue of his changing the use of his farm land

from one type of farming (pasturing) to another type of farming

(row cropping). That change, the court of appeals held, brought

the Site into “a new, non-wetland use.” App., infra, 39a. Rely-

ing exclusively upon a COE regulation providing that “[a] con-

version of a section 404 wetland to a non-wetland is a change in

use of an area of the waters of the United States,” 33 C.F.R. §

323.4(c), the court of appeals held that even if Brace was engaged

in normal farming activity, his operation was by definition “re-

captured” under Section 404(f)(2) of the CWA. Id.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari to review the clear error

of the court of appeals and to interdict the unauthorized exten-

sion cf federal jurisdiction through overbroad regulations pro-

mulgated by the COE. This combination of COE overreaching

and judicial misconstruction unlawfully extends the reach of

the CWA into normal agricultural activities specifically

shielded by Congress from the burdensome requirements of

Section 404 regulation and permitting.

9

The issues presented in this petition are of critical importance

for two reasons. First, the court of appeals’ decision has grave im-

plications for the entire American agricultural community. It gen-

erates uncertainty by counterintuitively.communicating, in direct

contradiction to the agricultural exemption provided in 33 U.S.C.

§ 1344(f)(1)(A), that farmers who engage in normal farming ac-

tivity on continuously farmed wetlands now may be subject to

wetlands regulation enforcement. The court of appeals decision

also threatens thousands of farm families with the direct costs and

burdensome requirements of environmental regulation that Con-

gress deliberately refrained from imposing.

Second, the court of appeals erroneously decided an impor-

tant question of federal law involving significant jurispruden-

tial issues — such as the proper extent of wetlands regulation

under Section 404 and the proper application of the Chevron

doctrine to particular COE regulations — the contours of which

remain imperfectly defined.

The proper scope and extent of wetlands regulation and en-

forcement have been in a state of chaos since federal regulatory

jurisdiction was extended to headwaters areas. The farming

community should not be subject to the regulatory morass in

which Brace found himself. This Court’s intervention is needed

to restore reason and balance in federal wetlands regulation.

I THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

IS ERRONEOUS

A. Brace’s ActivitiesOn His Farm Meet The Criteria

For The “Normal Farming Activities” Exemption

From Section 404’s Permit Requirement

Under regulations promulgated by the COE, in order to

qualify for the “normal farming activities” exemption of 33

U.S.C. § 1344(f)(1)(A), Brace must prove that his activities

were “part of an established (i.e. ongoing) farming ... opera-

tion,” and that they are in accordance with definitional regula-

tions listed in 33 C.F.R. § 323.4(a)({1)(iii). 33 C.F.R. §

323.4(a)(1)(ii). He did so. App., infra,9A. Brace should have

10

been found to qualify for the exemption because his activities

(1) constituted “normal farming” and (2) continued without

interruption a long history of farm activity on the Brace home-

stead farm in general and on the Site in particular.

1. Brace Continued An Ongoing Farming Operation

In holding that Brace’s activities were not normal farming

activities, the court of appeals ignored a fifty year history of

constant use of and improvements to the homestead farm.

During that time, the farm has been continuously used for nor-

mal farming activities such as pastureland and the growing of

corn, hay, cabbage, oats and dry feed.

The record contains abundant, uncontroverted evidence (in-

cluding testimony from the former County Executive Director

of the Agricultural Stabilization and Conservation Service) that

in the Erie County region, because soil typically requires con-

tinuous drainage in order to be suitable for cultivation, the in-

stallation and maintenance of drainage systems is an ordinary

and necessary activity associated with farming. The district

court considered Brace’s activities in light of the history of the

homestead farm, and in the context of normal farming practices

in Erie County.

Disregarding specific findings of fact, the court of appeals

criticized the district court for its historical and contextual ap-

proach. App., infra, 31a-33a. Without regard to evidence of

actual Erie County farming practices, the court simply echoed

the government’s brief by characterizing the district court’s fac-

tual finding as resting upon “a casual observation.” App., infra,

30a.

° Federal Rule of Civil Procedure 52 states in pertinent part that

district court “[f]indings of fact, whether based on oral or

documentary evidence, shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of

the trial court to judge the credibility of the witnesses.” The

district court’s findings of fact were based upon a full hearing

and consideration of the relevant evidence as well as a full and

sentinels,

11

By focusing solely on Brace’s particular activity within the

thirty acres targeted by the government as wetlands, the court

of appeals ignored his other agricultural activities on, and pur-

poseful integraticn of the Site with, the rest of the farm. This

refusal to consider Brace’s Site activities within the context of

his larger farming operation, and Erie County farm practice

generally, arbitrarily skewed the court’s analysis of the normal

farming activity exemption. The more natural and rational ap-

proach would consider the functional relationship of the Site to

the total mix of farming activities that regularly occur on the

entire farm, given the geographical and ecological realities of

Erie county. Avoyelles Sportsmen's League, Inc. v. Marsh, 715

F.2d 897, 926 (Sth Cir. 1983)(“Our [judgment] is based upon

the same total activities approach used by the district court.

That court did not make a tract-by-tract determination of what

precise activities were observed in each area of the lands in-

volved”); United States v. Cumberland Farms of Connecticut,

Inc., 647 F. Supp. 1166, 1175 (D. Mass 1986), aff’d, 826 F.2d

1151 (1st Cir. 1987), cert. denied, 484 U.S. 1061 (1988)(“To

apply these standards, Cumberland’s conduct must be analyzed

by a contextual review of its ‘total activities’”)(quoting

Avoyelles, 715 F.2d at 926)).

Nevertheless, even considering the thirty acre Site in isola-

tion, it is undisputed that Brace family members pastured large

farm animals on the Site for decades prior to 1977. Although

pasturing cows and horses is not specifically enumerated in 33

U.S.C. § 1344(f)(1)(A) or 33 C.F.R. § 323.4(a)(1)(i) as an ex-

ample of “normal farming activities,” neither the government

fair opportunity to assess the credibility of those who testified

before it. The district court’s decision was predicated upon

clearly established facts, which even the government has not

described as clearly erroneous. Consequently, the court of

appeals should not have so cavalierly set aside the district

court’s findings of fact.

12

nor the court of appeals has indicated that pasturing cows and

horses is not an aspect of “normal farming.” Thus, at least un-

til 1977, when Brace commenced tiling and refurbishing old

drainage ditches throughout the homestead farm, the Site was

indisputably part of an established, ongoing farming operation.

2. Brace Was Engaged In “Normal Farming” Activities

The narrower question, then, is whether Brace’s conversion

of pastureland into crop-bearing field in order to “integrate the

various portions of the property into an overall operation for an

effective and productive farming business,” App., infra, 22a,

constituted “normal farming activity.” The court of appeals

begged that question when it stated that “Brace converted a

thirty-acre site that was not suitable for farming ii*to a site that

is suitable for farming, and thus ‘brought an area into farming

use.’” App., infra, 33a. Implicit in the court’s holding is the

proposition that Brace’s work in preparation for growing row

crops was itself not normal farming activity.

Brace did not bring the Site “into farming use,” for it was

never used for anything but farming. Before 1977, the farm

including the Site was not only “suitable for farming,” it was

actively farmed by Brace family members. By working on his

farm Brace did not suddenly make the Site “suitable for farm-

ing” or bring it “into farming use,” for it already was farmland

being farmed. Brace merely shifted from one type of farming

to another type of farming. Obviously, that project could not be

completed with a wink of the eye; it required work. How can

and why should a farmer’s diligent work to facilitate the tran-

sition from pasturing animals to growing crops be characterized

as non-farming?

The court of appeals conflated the broad concept of “nor-

mal farming” with the much narrower activity of growing row

crops. Growing row crops is only a subset of normal farming

activity. The fact that Brace engaged in preparatory work in or-

der to make the homestead farm suitable for the growing of row

crops does not mean either that his preparatory work was non-

farming or that prior to such work the Site was unsuitable for

ieee acaccnaei iii aii

13

normal farming activities. Indeed, prior to Brace’s work, the

Site was used for other normal farming activities, i.e., pasturing

cows and horses.

The court of appeals isolated Brace’s drainage activities and

concluded that, standing alone, and “[rJegardless of how ‘typi-

cal’ or ‘necessary’ such activities are in Erie County, Pennsyl-

vania, they were not “normal farming activities.” That

conclusion betrays common sense, for the impetus leading to

the enactment of the normal farming activities exemption was

the understanding that farmers frequently “dredge and dis-

charge fill material” as part of routine farming procedures.°

° The following exchange between Senators Allen and Muskie

during the debates over the 1977 Amendments to the CWA

illustrates that Congress specifically intended to spare the

farming community from the type of wetlands regulation at

issue in this case:

MR. ALLEN. The wet crop and forest lands which are

generally lowland or flood plain areas that fall under the corps

404 jurisdiction are where the exclusion of the minor drainage

is needed. It serves no purpose whatsoever to exclude activities

on upland or other areas that do not fall within the scope of the

section 404 permit program, as the committee would seem to

indicate, I trust then, that it is actually the committee’s intent to

exclude minor drainage activities on those lands such as I have

described which are used for the production of food, fiber, and

forest products. Am I correct?

MR. MUSKIE. Mr. President, the drainage exemption is

very clearly intended to put to rest, once and for all, the fears

that permits are required for draining poor drained farm or

forest land, of which millions of acres exist. No permits are

required for such drainage. Permits are required only where

ditches or channels are dredged in a swamp, marsh, bog, or

other truly aquatic area.

4 A Legislative History of the Clean Water Act of 1977 at 1042

(Senate Debate of August 4, 1977).

14

a. Corps of Engineers’ Examples of Normal Farming

Activities Are Not Exclusive

The court of appeals based its holding on the fact that

Brace’s Site activities are not “within the meaning of the statu-

tory term ‘normal farming activities’ as defined by the regula-

tions.” App., infra., 35a. But the regulations do not purport to

be all inclusive; they are merely examples. Both 33 U.S.C. §

1344(f)(1)(A) and 33 C.F.R. § 323.4(a)(1)(i) provide that

unpermitted discharge of fill material is not prohibited if it re-

sults from “[nJormal farming, silviculture and ranching activi-

ties such as plowing, seeding, cultivating, minor drainage, and

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

or upland soil and water conservation practices...” (Emphasis

added). Manifestly, the six enumerated activities do not consti-

tute a comprehensive definition of normal farming activities.

By using the non-restricting modifier, “such as,” Congress and

the COE specifically left open the possibility that other activi-

ties, such as those performed by Brace, could fall within the

ambit of “normal farming.” See Equal Employment Opportu-

nity Comm’n v. McCarthy, 768 F.2d 1, 4 (1st Cir. 1985)(regu-

latory definition referring to factors “such as” those specifically

enumerated “is exemplary in nature, being neither mandatory

nor exclusionary”); Stellacom, Inc. v. United States, 24 Cl. Ct.

213, 219 (Cl. Ct. 1991)(agency’s use of non-restricting modi-

fier indicates its intent that the regulation in question be con-

strued non-exclusively).

The court of appeals need not, and should not, have focused

only upon the examples of normal farming activity enumerated

by Congress and the agencies. By doing so, the court artifi-

cially circumscribed the concept of “normal farming” and si-

multaneously overrode the clear intent of Congress. The

Statutory exemption provides that discharging fill material is

not subject to COE regulation so long as such discharge is per-

formed in the context of normal farming activity. The court of

appeals judicially erased that exemption by unreasonably and

inflexibly holding that the transition from the enumerated “nor-

ma] farming” activities to other, unenumerated “normal farm-

15

ing activities.” One wonders, as many farmers must now won-

der, exactly why such activity is not normal farming.

3. Brace Engaged In Normal Farming Activity On A

Continual Basis

The court of appeals also held that even if Brace’s father’s

pasturing of cows and horses constituted “normal farming ac-

tivity,” Brace activity lost its status as part of an ongoing farm-

ing operation when Brace commenced ditch refurbishing and

drainage tiling to make the soils throughout the homestead farm

suitable for producing row crops. App., infra, 33a. The panel

based its holding on 33 C.F.R. § 323.4(a)(1)(ii), which pro-

vides, inter alia, that “[a]n operation ceases to be established

when the area on which it was conducted has been converted to

another use or has lain idle so long that modifications to the

hydrological regime are necessary to resume operations.”

However, neither of the conditions set forth in the regulation

exist in this case.

Brace did not convert the Site to “another use,” as that

phrase must be understood within the context of 33 U.S.C. §

1344(f)(1). Congress’ fundamental purpose in enacting the

“normal farming” exemption was to afford flexibility to farm-

ers engaged in conventional farming activities.’ Thus, the pro-

vision of 33 C.F.R. § 323.4(a)(1)(ii) stating that “[a]n operation

ceases to be established when the area on which it was con-

’ During the Senate debate over the 1977 Amendments to the

Clean Water Act, Senator Muskie (the legislation’s primary

sponsor) stated:

The upland farming, forestry and normal development

activity carried primarily by individuals and as a part of

family business or family farming activity need not bear

the burden of an effort directed primarily at regulating the

kinds of activities which interfere with the overall

ecological integrity of the Nation’s waters....

16

ducted has been converted to another use” can only reasonably

refer to the conversion of an area from a farming to a non-farm-

ing use. Interpreting the regulation so that it would encompass

the conversion of one farming use to another farming use on the

same parcel of land does not just limit the “normal farming”

exemption; it eradicates it.

Petitioners’ interpretation is buttressed by the second clause

of the “ceases to be established” sentence in 33 C.F.R. §

323.4(a)(1)(ii), which provides that an ongoing farming opera-

tion ceases to be “established” when the “area has lain idle so

long that modifications to the hydrological regime are neces-

Sary to resume operations.” Given that 33 C.FR. §

323.4(a)(1)(ii) purports to construe the Section 404(f)(1) “nor-

mal farming” exemption, the subject pervading the regulation

is farming activity. Reading the entire sentence together, it is

clear that only if (1) a farming use is abandoned in favor of a

non-farming use, or (2) farming use is terminated for such a

long period of time that modifications to the hydrological re-

gime are necessary to resume normal farming, then the once-

exempt farming operation ceases to be “established” for

purposes of the normal farming activities exemption.

Notwithstanding that Brace was unable to plant row crops

until several years after he began work on the farm, it is an un-

The initial response to section 404 was to interpret it so

as to extend its potential jurisdiction over those normal

activities which would subject citizens to overregulation,

and we all began to get letters protesting that potential

intrusion upon their normal activities.

Every proposal before this Senate, every one, is

designed to exempt those normal activities from that kind

of overregulation by the Corps of Engineers or anybody

else.

4A Legislative History of the Clean Water Act of 1977 at 869,928

(Senate Debate of August 4, 1977). .

17

disputed fact that his work was continual and ongoing. That is,

at no point did the farm or the Site lay “idle.” Brace should not

lose the normal farming exemption merely because he could not

immediately convert from pasturing to growing row crops. As

the record shows, Brace had limited financial resources and per-

formed much of the work himself, accomplishing each task as he

was able. App., infra, 4a (921), 5a-6a (928).

The panel’s construction of 33 C.F.R. § 323.4(a)(1)(ii)

would require farmers to assume the burdens, costs and delays

of the Section 404 permit process every time they desired to

convert a pasture into a field of row-crops, or even convert one

type of crop into another type of crop if the conversion in-

volved a modification to the local hydrology. This interpreta-

tion is without support in the statute or legislative history, and

with good reason, for it turns the normal farming activities ex-

emption on its head. Under the court of appeals’ arbitrary and

capricious interpretation, the normal farming exemption, rather

than eleminating overregulation, as Congress intended, would

forever limit farmers to only those farming activities and meth-

ods currently utilized, forbidding any attempt to alter or inten-

sify those activities without first petitioning COE for a permit.

B. Brace Did Not Bring The Site Into A Use To

Which It Was Not Previously Subject

In addition to proving that he qualifies under Section

404(f)(1)(A) for the normal farming activities exemption, the

court of appeals concluded that Brace must establish that he was

not “recaptured” by Section 404(f)(2) of the CWA, 33 U.S.C. §

1344(f))(2) (the “recapture provision”). Under the recapture pro-

vision, the exemptions enumerated in Section 40+1(f)(1) do not

apply to any discharge of fill into wetlands “incidenta! 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.” 33 U.S.C. § 1344(f)(2).

The recapture provision substantially overlaps the COE’s

regulation at 33 C.F.R. § 323.4(a)(1)(ii), discussed supra, in

’

18

that it withdraws the normal farming exemption from activities

by persons who would attempt to farm never-before farmed

wetlands without first obtaining a Section 404 permit. The ap-

plicable COE regulation interpreting the “recapture provision,”

however, is much more aggressive than the statute it purports to

implement. 33 C.F.R. § 323.4(c) provides that “[a] conversion

of a section 404 wetland to a non-wetland is a change in use of

an area of the waters of the United States.”

The language of Section 404(f)(2) and the structure of Sec-

tion 404 will not bear the construction embodied in 33 C.F.R.

§ 323.4(c). The recapture provision only makes sense when

read as referring back to Section 404(f)(1). Thus, Section

404(f)(2) withdraws from the Section 404(f)(1) class of exempt

activities those discha:ges which bring an area into a new use

if the flow or circulation of navigable waters is impaired

thereby. Two circumstances must exist before the recapture

provision renders Section 404(f)(1) inapplicable. First, the oth-

erwise exempt activity (e.g., normal farming) must be new in

that the activity was not previously before practiced on the

wetland at issue. Second, this new use must impair the flow or

circulation of navigable waters. Unless both circumstances

obtain, no permit is required under the recapture provision.

The COE, in 33 C.F.R. § 323.4(c), simply collapses the “ac-

tivity having as its purpose bringing an area of the navigable

waters into a use to which it was not previously subject” provi-

sion into the “where the flow or circulation of navigable waters

may be impaired or the reach of such waters reduced” provi-

sion. The statutory test for recapture (“new use plus impair-

ment of water flow”) is reduced by the Corps’ regulation into

simply “impairment of water flow,” which, if found, is neatly

deemed to satisfy the new use requirement.

The COEs’ interpretation of the recapture provision is nei-

ther reasonable nor authorized by Congress. If Congress had

intended the recapture provision to render the enumerated ex-

emptions inapplicable whenever the flow of navigable waters is

impaired, it could have so provided. Instead, Congress created

a two-pronged recapture provision. The COE should not be

19

permitted unilaterally to expand its jurisdiction by simply pre-

tending the first prong (the new use requirement) does not ex-

ist.

The correct application of the recapture provision is illus-

trated in many prominent Section 404 cases, including several

cited by the court of appeals. See Conant v. United States, 786

F.2d 1008 (11th Cir. 1986) United States v. Huebner, 752 F.2d

1235 (7th Cir. 1985); Avoyelles Sportsmen's League, Inc. v.

Marsh, 715 F.2d 897 (Sth Cir. 1983); Environmental Defense

Fund vy. Tidwell, 837 F. Supp. 1344 (E.D. N.C. 1992). In each

of these cases, the landowner acquired land which had not pre-

viously® been farmed and attempted to convert wetlands into

non-wetlands before commencing normal farming activities.

The courts in these cases appropriately rejected the landown-

ers’ claims of exemption because in each case the landowner

would have had to convert the property into non-wetlands be-

fore commencing (for the first time on that property) farm ac-

tivity. The combination of such new uses and concomitant

impairment of water flow is exactly what Section 404(f)(2) was

intended to prevent.

By contrast, Brace is a pure agricultural exemption case.

Brace converted the Site from wetland into nonwetland, but not

for the purpose of establishing a new (farming) use. As dis-

cussed above, Brace simply switched from one type of farming

to another type of farming. That is precisely the type of normal

farming activity Congress exempted from the Section 404 per-

mit process, even if the flow of navigable waters is impaired in

the process.

As such, the instant case is distinguishable from the cases

relied upon by the court of appeals in support of its decision. In

United States v. Larkins, 657 F. Supp. 76 (W.D. Ky. 1987),

aff'd, 852 F.2d 189 (6th Cir. 1989), the defendant landowners

acquired 550 acres of flood plain property in 1976. The land,

8 In United States v. Huebner, 752 F. 2d 1235 (7th Cir. 1985),

the subject property had not been farmed in decades.

20

parts of which was covered with knee deep water, had either

never been farmed, or, at best, had not been farmed since 1950

when the State reintroduced beavers into the area. Although

there was a complete absence of evidence of farming activity at

any time, the landowner defendants unsuccessfully attempted

to claim both the farming and silviculture exemptions.

In Bayou Marcus Livestock & Agricultural Co. v. U.S. En-

vironmental Protection Agency, No. 88-30275, 1989 WL

206151 (N.D. Fla. Nov. 3, 1989), the plaintiff landowners ac-

quired wetlands in 1985. Prior to 1971, the subject property

was used, “if at all,” for turpentine collection. Some tree har-

vesting by unknown persons occurred between 1971 and 1974.

There was no evidence of any related activity on the land be-

tween 1974 and 1985. Upon acquiring the property, plaintiffs

began digging ditches, removing trees and constructing roads,

allegedly to prepare the site for tree farming. The court cor-

rectly rejected plaintiff’s claimed farming/silviculture exemp-

tion for the obvious reason that their operation was not part of

an ongoing farming or silviculture operation; rather, it was an

attempt to establish, for the first time and by modifying the

hydrology of the wetlands, a tree farm.

Brace is similarly distinguishable from the agricultural ex-

emption cases commonly cited as authority unfavorable to

landowners claiming the normal farming exemption. See

Conant v. United States, 786 F.2d 1008 (11th Cir. 1986)(new

construction of a fish farm not exempt because plaintiff's activ-

ity was not part of an established farming operation); United

States v. Huebner, 752 F.2d 1235, cert. denied, 474 U.S. 817

(1985)(landowners attempted to expand existing farm by grow-

ing upland crops on previously unfarmed wetlands); Avoyelles

Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (Sth Cir.

1983)(plaintiffs drained 20,000 acres of wetlands in order grow

soybeans on previously unfarmed land); United States v.

Cumberland Farms of Connecticut, Inc., 647 F. Supp. 1166 (D.

Mass 1986), aff’d, 826 F.2d 1151 (1st Cir. 1987)(andowners

dredged 2,000 acre swamp for conversion to agriculture, a use

to which the site was never before subject). These cases uni-

‘

i

21

formly involve a landowner’s conversion of wetlands into

nonwetlands in order to bring previously unfarmed wetlands

into agricultural use for the first time. Brace’s conversion oc-

curred on wetlands that were actively being, and had long been,

used for normal farming activities.

The mischief worked by COE’s regulatory overreaching

can be seen in United States v. Akers, 785 F.2d 814, cert. de-

nied, 479 U.S. 828 (1986). That case involved a farmer’s con-

struction of a two-mile long dike in connection with the

drainage of nearly three thousand wetland acres known as the

“Big Swamp.” Despite the substantial factual dissimilarity be-

tween Akers and the instant case in terms of the sheer scale of

operations,’ the cases are legally similar in that Akers also in-

volved property that had long been subject to normal farming

activity. Yet the Akers court laid the groundwork for the Third

Circuit’s erroneous decision by arbitrarily holding that while

changes from one wetland crop to another are not subject to the

permit requirement, changes from a wetland farm activity to a

nonwetland farm activity are subject to the COE permit pro-

gram. Id. at 820. That distinction cannot be derived from the

Clean Water Act. As discussed supra, the normal farming ex-

emption is unavailable only to persons who would introduce

farming for the first time (new use), not farmers who introduce

a new type or method of farming on previously farmed land.

The artificial distinction between wetland farming and

nonwetland farming drawn by the Ninth and now the Third

Circuit lacks textual and structural support in the CWA.

® The court of appeals stated that the size of wetlands affected

by farming activity is irrelevant to the scope of regulatory

jurisdiction. App., infra, 34a-35a. Yet, as the Akers court noted,

“It is ... the substantiality of the impact on the wetland that

must be considered in evaluating the reach of [the recapture

provision].” United States v. Akers, 785 F.2d at 822 (emphasis

added).

22

By characterizing all conversions of wetland into

nonwetland as a statutory “change in use,” COE arbitrarily de-

tached the recapture provision from the exemptions enumerated

in Section 404(f)(1). But once the focus shifts from real-life

changes in use accompanied by an impairment of the flow of

navigable waters (Section 404(f)(2)) to any activity resulting in

the conversion of wetlands into nonwetlands (33 C.F.R. §

323.4(c)) the regulatory jurisdiction of the COE dramatically

expands beyond the bounds established by Congress.

The COE’s regulation is not an exercise in legislative gap

filling, for Congress unambiguously expressed its intent. The

recapture provision does not remove active and ongoing farm-

ing operations from the exemption. Rather, by its own terms,

the provision only reaches attempts to switch from non-exempt

uses to exempt uses, where such attempts impair the flow of

navigable waters. There is no ambiguity, and therefore no del-

egation of authority which would authorize the COE to expan-

sively “elucidate” the recapture provision. The COE’s

regulation is thus a usurpation of legislative authority to which

judicial deference is not required under Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 838 (1984).

See, e.g., Pittston Coal Group v. Sebben, 488 U.S. 104 (1988).

Accordingly, based on the foregoing, this Court should grant

certiorari to ensure that Congress’ comprehensive and carefully

crafted federal wetlands policy applicable to farmland and nor-

mal farming activities is not upset by regulatory overreaching

and the court of appeals’ erroneous decision.

23

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Henry McC. Ingram

Counsel of Record

David J. Porter

BUCHANAN INGERSOLL

PROFESSIONAL CORPORATION

600 Grant Street, 58th Floor

Pittsburgh, PA 15219

(412) 562-8800

Counsel for Petitioner

April 1995

APPENDIX

ST AVALABLE COP

Filed December 17, 1993

UNITED STATES OF AMERICA

Plaintiff

v.

ROBERT BRACE and

ROBERT BRACE FARMS, INC.,

a Pennsylvania Corporation,

Defendants

Civil Action No. 90-229 Erie

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ADJUDICATION

The above-captioned case was tried non-jury and a view of

the site in dispute was conducted by the Court. The Court

makes the following

FINDINGS OF FACT

1. The United States has brought this action against Rob-

ert Brace, individually (hereinafter “Brace”) and Robert Brace

Farms, Inc., a Pennsylvania corporation (hereinafter “Brace

Farms”) (collectively, “~Defendants”), alleging two counts of

violations of the Clean Water Act (hereinafter “CWA”).

2. Brace is a farmer who owns land in Erie County that is

used exclusively for farmland. Brace Farms, Inc. is a Pennsyl-

vania corporation engaged principally in the farming business.

2a

3. Defendants own approximately 600 acres of real prop-

erty located in Erie County, Pennsylvania, approximately 30

acres Of which is the subject of the action (“site”).

4. The parties have stipulated that the site constitutes

“wetlands” as defined in the CWA and its implementing regu-

lations. The Court’s view indicated that not more than 25% of

the site met the definition.

5. Wetlands constitute a productive and valuable resource,

the unnecessary alteration or destruction of which constitutes a

serious violation of the environmental laws, which should be

discouraged as contrary to the public interest.

6. Wetlands perform vital functions important to the envi-

ronment and public interest, including but not limited to: (a)

serving water purification and water quality enhancement func-

tions; (b) serving as storage areas for storm and flood waters;

(c) serving natural biologic functions, including food chain pro-

duction, general habitat, and resting sites for aquatic or land

species, and (d) serving erosion and sedimentation control

functions. 33 C.F.R. 320.4(b); 40 C.F R. 230.41.

7. The site is adjacent to a tributary of Elk Creek, which is

an interstate waterway.

8. Elk Creek is a tributary of Lake Erie, which is also an

interstate waterway.

9. Brace’s parents and other family members have always

earned their principal livelihood from farming activities. While

Brace was growing up, he lived on property that now includes

the site. Brace has been a farmer since the age of fifteen.

10. Brace purchased certain farm property from his father

in 1975. A portion of that property contains the site. The prop-

erty has been in the Brace family since the 1930’s, when

Brace’s grandfather farmed the land.

11. In years prior to the time that Brace’s father owned the

property that includes the site, the property had been used regu-

larly for normal farming activities, such as cropland and

pastureland for diary and beef cattle.

3a

12. Brace’s parents were in the farming business for their

entire lives. Brace’s father had used the site for normal farm-

ing activities during the time he owned the property. From time

to time, Brace’s father produced corn, hay, cabbage, oats and

dry feed on the property that includes the site.

13. The soil in Erie County requires continuous draining in

order to be suitable for cultivation. Extensive underground

drainage systems are typical and necessary aspects of farming

in Erie County, and the installation of such systems is a normal

farming activity in order to make land suitable for farming.

14. The topography and soil type on the site are typical of

Western Pennsylvania and of Erie County in particular. Bea-

vers have traditionally lived on and around the site. Due to the

presence of beaver dams that have affected the flow of water on

the site, the site was traditionally inundated with water at vari-

ous times.

15. The wildlife on the site consists of transient deer, geese,

rabbits and other wildlife typical of the area and not uncommon

to farmland in Erie County. The site does not serve as a wild-

life refuge. The wildlife on the site has not changed from the

time that Brace’s father owned the land up to the present time.

16. Brace purchased the property from his father with the

intent to continue and to improve upon his father’s established

farming operation. It was Brace’s intent to integrate the vari-

ous farmable portions of the property into an overall operation

for an effective and productive farming business.

17. Atthe time Brace purchased the property containing the

site from his father, the site was vegetated with areas of scrub

brush, including red brush and briars. From 1977 to 1987, as

a result of the work that Brace did in the late 1970’s, the site

was basically dry except in times of excessive precipitation,

when under such circumstances, the site, like all other land in

the area, would show evidence of a heavy rain.

18. From 1985 through 1987, the site was not used for ei-

ther pasturing or growing of crops.

4a

19. At the time Brace acquired the property in 1975,

Brace’s father had made the decision to use the site for

pastureland due to the costs associated with other aspects of

farming and limited available funds. Upon the purchase of the

property, Brace leased the property to his brother, who contin-

ued the dairy practices for approximately one year and then

removed the fencing used for pastureland and cleared portions

of the pasture brush. The topography and water conditions of

the site did not change during the time that Brace’s brother

leased the site.

20. Sometime subsequent to the purchase of the property

from his father, Brace purchased an additional, adjacent 140

acres from his cousins that had the effect of increasing the to-

tal acreage to be used for Brace’s overall and integrated farm-

ing plan to approximately 270 acres.

21. Due to the purchases of property from Brace’s father

and cousins, Defendants were highly leveraged in the late

1970’s and the 1980’s. At times, Defendants’ service debt and

operating expenses ranged from $500,000 to $700,000, the size

of which affected the Brace’s ability to do all of their work in

one year; however, they were regularly doing something on the

property.

22. Inthe late 1970’s Brace developed gas wells on por-

tions of the property he owns. No wells were developed on the

site. Brace invested in the gas wells in order to help subsidize

his farming operations over the years.

23. From 1975 to 1977, Brace began to make plans for the

farming of his property. In 1977, Brace decided to seek the ad-

vice and assistance of the Agricultural Stabilization and Con-

servation Service (hereinafter “ASCS”) as part of his land to

develop an integrated farming operation on the property that in-

cludes the site. Brace’s father had previously worked with the

ASCS to prepare a drainage plan relating to the site for the pur-

pose of farming the entire property. At the time he purchased

the property for his father, Brace obtained the soil and conser-

vation plans that had been prepared for his father by the ASCS

Sa

office in Erie County. The plan contains a map of the property

and the layout of the drainage system on the property, includ-

ing portions of the site. The plans were issued in the 1960's.

24. Brace utilized the existing drainage plan that had been

implemented on the property that contains the site as part of his

overall intention and design to establish a farming operation

that would be interconnected and continuous throughout the

property. The drainage system impacts the ability to produce

crops on all parts of Brace’s property; without such a system,

the property is not suitable for farming because of soil condi-

tions.

25. The existing drainage system was in poor condition and

not yet complete at the time of Brace’s acquisition. Therefore,

in order to maintain, preserve and improve upon the existing

system consistent with his farming plans, Brace began cleaning

the system in 1976 in order to make it effective for agricultural

development.

26. The drainage system included a design for channels and

tiling to allow waters from adjoining croplands to be siphoned

off and onto the site. In late 1976 and early 1977, Defendants

implemented the first stage of the interconnected plan that had

been recommended by the ASCS by reopening a channel to

allow the water to flow in the natural direction. Defendants

also installed tiling material on the site consistent with the

ASCS recommendations.

27. Also, in 1977 Brace contacted the ASCS to inquire as to

technical assistance and cost-sharing arrangements that might

be available for the implementation of his plans. The ASCS

visited the site prior to extending such assistance and thereaf-

ter provided such advice and assistance to Brace, continuing to

do so up to 1985. The site and the farming activities conducted

thereon were never concealed from the Plaintiff, other depart-

ments of the federal government or state agencies.

28. As of 1977, the essential portions of Brace’s improve-

ments to the already existing drainage system on the site were

intact and operating. In subsequent years, Brace maintained the

6a

system, consistent with his overall plans and as is necessary for

typical framing activities in Erie County, as time, funds and

equipment were available. If all of the necessary funds had

been available to him in 1977, Brace would have expedited his

farming plans and completed the project at that time.

29. The maintenance of the drainage system that Brace per-

formed on the site from 1977 to 1979 enhanced Brace’s farm-

ing productivity in the upland areas and was necessary to

conserve the soil and water conditions in those areas.

30. From 1977 to 1979, Defendants continued to maintain

the drainage system by cleaning it and removing sedimentation

to enhance water flow. The site was dry at the end of 1979 as

a result of such maintenance, with the exception of times of ex-

cessive rainfall when it, like areas located off site, wou!d be-

come wet.

31. Inthe late 1970's and early 1980’s, as part of the main-

tenance of the drainage system, Brace introduced a series of

small channels that were connected to the initial channel and

were part and parcel of the initial work. The small channels

enhanced the flow of surface water off of the uplands to its

natural courses.

32. Defendants’ work in improving upon the intercon-

nected drainage system progressed continuously from 1977 to

1987. Brace worked on the system when funds, time and

equipment were available. Brace’s wife, two sons and a hired

worker assisted in the farming activities, and Brace regularly

worked the site.

33. From 1985 through 1987, Brace cleared, mulched,

churned, levelled and drained the formerly wooded and veg-

etated site.

34. In 1986 and 1987, Brace Farms paid for excavation in

the site and the burying of plastic tubing, sometimes referred to

as “drainage tile,” in an effort to drain the site.

35. Throughout the 1980’s, in order to continue to improve

upon the drainage system that began in 1977, Brace used ap-

propriate equipment to remove unconsolidated soil, pebbles,

7a

silt and growth which were impeding water flow and tied cer-

tain lateral channels to the existing system to further enhance

water flow. These activities were part of the overall mainte-

nance of the drainage system, and farmers in the Erie County

area typically engage in such practices.

36. Defendants did not have a permit issued pursuant to

CWA section 404 authorizing their activities.

37. As aresult of Defendants’ levelling, spreading and til-

ing, Defendants began to grow crops on the site in 1986 and

1987.

38. Since 1977, Defendants have planted and harvested

cabbage, oats, hay and other grains on portions of the property.

In 1986, Defendants planted oats and alfalfa hay on portions of

the site because Brace believed that it was the proper time to do

so.

39. The United States became aware of Defendants’ activi-

ties in 1987.

40. Between 1987 and 1988, the United States issued three

orders to Defendants, ordering them, inter alia, to refrain from

further disturbances of the site, so that the site could naturally

revegetate with indigenous plant species.

41. After the issuance of these orders, Defendants contin-

ued to mow the vegetation on the site.

42. In October 1988, Brace received an Administrative

Complaint in connection with his farming activities on the site.

Brace, as he was advised he could do, requested a hearing to

contest the Complaint, believing that his activities were exempt

from any and all permit requirements. Prior to the hearing, the

Complaint was dismissed.

43. Inthe summer of 1988, Brace approached the ASCS in

order to gain the status of “commenced conversion from wet-

lands” with respect to the site for purposes of the Federal Food

Security Act. The ASCS granted this status to the site, finding

that Brace’s on-going farming activities had commenced prior

to December 1985.

a

8a

44. In April 1990, as a cautionary measure, Brace ap-

proached the Army Corps of Engineers (hereinafter “COE”) in

an effort to obtain an after-the-fact permit to conduct his farm-

ing activities on the site, despite his belief that the activities

were and are exempt from permit requirements of the CWA.

The United States Environmental Protection Agency (hereinaf-

ter “EPA”) requested that COE not review an application from

Brace for an after-the-fact permit. However, Brace was advised

that because the matter was then in litigation, the government

would not positively act on his request for a permit.

45. Since 1977 Defendants’ activities on the site have con-

sisted only of normal farming activities, maintenance of the ex-

isting drainage system, and activities to enhance and conserve

the upland soil and water on the farm property. Since the time

of the cease and desist order, Brace has terminated all farming

activity on the site, with the exception of routinely cutting the

hay. Brace has not disturbed the soil on the site in any signifi-

cant or meaningful way since being served with the cease and

desist order. Brace has continued to farm the adjacent areas but

has not achieved the full benefit of the overall integrated plan

that he hoped to accomplish due to his present inability to con-

tinue his farming activities on the site.

DISCUSSION

This litigation involves a 30-acre area located in Waterford

Township, Erie County, Pennsylvania. The parties entered into

a pretrial stipulation that the 30-acre site was wetlands as de-

fined at 33 C.F.R. § 328.3(b), and 40 C.FR. § 232.2(r). This

Court accepts this stipulation for purposes of this lawsuit but

notes that our view of the site indicated that only approximately

25% of the site would fall within the aforementioned definition

of wetlands.

The property in question has been owned by the defendant,

Robert Brace, since 1975 when he purchased it from his father,

Charles Brace. Charles Brace acquired the land in the early

1950’s, having bought the adjoining lands from his father,

Leslie Brace, who had owned the land since the 1930’s.

Balam

cet EW Nan Re ance NE a Oe Ny came

9a

We perceive this case as simply calling for a determination

of whether or not the Defendants’ activities on their farm lands

entitled them to an exemption from the permit requirements of

the CWA, 33 U.S.C. §§ 1251-1387, as normal agricultural ac-

tivities.

33 U.S.C. § 1344(c)(1)(A) provides a narrow exemption to

the general requirement of a Section 404 permit. See 33 U.S.C.

§ 1344. This exemption defines as non-prohibited discharge of

dredged or fill material that which is incident to “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 conser-

vation practices.”

At the center of this statutory dispute is the subquestion of

whether or not Defendants’ activities over the years on the site

were part of an effort to establish a new crop production opera-

tion or a part of the long history of various agricultural practices

and uses consistent with those utilized by farmers in Erie

County, Pennsylvania.

This Court is persuaded and concludes that the subject site

was during the entire period of time that ownership rested in the

Brace family, an integral part of an established and on-going

farm and ranching operations, and Defendants’ activities dur-

ing the time frame of 1985-1987 did not bring a new area into

the operation. A key factor in reaching this conclusion is this

court’s realization that the site was an integral part of the dr-in-

age system previously installed in adjoining crop producing

fields. Defendants planted and harvested oats and other crops

from the site area and that during the period of 1975 through

1987, they cleared brush and cropped hay from the site.

What comprises “normal agricultural activities” is fact spe-

cific and this Court herein makes findings of fact (Findings of

Fact Nos. 16, 19, 20, 23, 24, 28 and 58) that the Defendants

were engaged in normal agricultural activities on the site. (See

Conclusions of Law No. 32).

We conclude that the land which can be traced to Robert

10a

Brace’s grandfather, Leslie, in the 1930's has been in continu-

Ous use for what would be a normal farming operation in Erie

County, Pennsylvania. As we wrote in this Court’s Opinion,

addressing the parties’ Motions for Partial Summary Judgment,

“[t]his certainly does not appear to be the type of case where a

corporation or large farming enterprise takes control of a par-

cel of land and dramatically alters the composition of the land

and runs roughshod over the requirements of the Clean Water

Act.” See, United States v. Akers, 785 F.2d 8]4 (9th Cir. 1986)

(2,889 acres of wetlands); and United States v. Cumberland

Farms of Connecticut, 647 F. Supp. 1166 (D. Mass. 1986)

(2,000 acres of wetlands). Here the parcel of land in question

has remained within the same family for over 60 years and

there has existed a plan to over a period of time, with the finan-

cial help and guidance of United States Department of Agricul-

tural programs, to place the entire farm to productive farm

usage. This plan and the Defendants’ efforts to reach its goal,

as financing permitted, was not directed to converting in the

mid 1980's a regulation defined wetland area to a new crop pro-

duction area.

Likewise, this Court finds that the Defendants’ activities on

the site constituted an integral part of long-range upland soil

and water conservation practices. The farming activities on the

site were designed to enhance productivity in the upland areas

by allowing water to flow to its natural courses with a conse-

quential improvement of the soil. Such courses of action, to-

gether with regularly cleaning of the drainage system on the

site, constituted maintenance of the drainage system on the site,

constituted maintenance of the drainage system, and as such, is

exempt from the permit requirements of the CWA. 33 U.S.C §

1344(f)(1)(c).

The Government also argues that the Defendants have not

shown that they can avoid the recapture provision of section

404 (f)(2) of CWA. Since this Court, as the factfinder, con-

cludes that the Defendants’ activities were not conducted in

order to bring the site property into a use to which it was not

lla

previously subject, but rather were part of an ongoing farming

operation of the Brace family for some 60 years and did not

impair the flow or circulation of navigable waters or the reduc-

tion of the reach of such waters, it follows that the recapture

provision does not apply to this case. A similar result is

reached relative to the maintenance of a drainage ditch since

such maintenance would not convert wetlands to a use to which

the site area was not previously subject.

Now we address what for the Court is the most difficult as-

pect of this case, namely, that the Defendants failed to totally

comply with Administrative Orders issued to them, requiring

them to cease and desist all activities on the site. Although the

Defendants continued only to routinely cut the hay on the site,

their general response to the Administrative Orders were to re-

quest a hearing, seek the status under ASCS of a prior 1985

“commenced conversion from Wetlands” and contact the COE

in an effort to obtain an after-the-fact permit to conduct farm-

ing activities on the site.

However, since the Defendants have not disturbed the soil

on the site in any significant way since being served with the

cease and desist orders, and in the view of this Court acted only

out of sincere conviction, although undoubtedly misguided, we

will not hold the Defendants liable in this litigation for being in

contempt or non-compliance with said Administrative Orders.

This Court finds the Defendants not liable for violations of

the Clean Water Act because we conclude that they are entitled

to the exemptions allowed by Section 404(f)(1)(A) of the Act

and for the other reasons set forth herein we find all liability

issues in favor of the Defendants.

An appropriate order will be filed.

12a

CONCLUSIONS OF LAW

1. This Court has jurisdiction under CWA § 309(b), 33

U.S.C. § 1319(b) to grant injunctive relief and impose civil

penalties with respect to violations of the CWA.

2. Under CWA § 309(b). 33 U.S.C. § 1319(b), this Court

is empowered to order permanent injunctive relief enjoining all

future violations of the CWA at a site.

3. The CWA was passed to restore and maintain the

chemical, physical, and biological well-being of the Nation’s

waters. Section 301(a) makes it unlawful for a person to dis-

charge pollutants into “waters of the United States” except as in

compliance with other provisions of the Water Act. One of

those sections is § 404, which requires a permit from the COE

for the discharge of dredged or fill material into waters of the

United States, including wetlands. 33 U.S.C. § 1311, 1344.

4. “Wetlands” are defined as “those areas that are inun-

dated or saturated by surface or ground water at a frequency

and duration sufficient to support, and that under normal cir-

cumstances do support, a prevalence of vegetation typically

adapted for life in saturated soil conditions. Wetlands generally

include swamps, marshes, bogs and similar areas. 33 C_F.R. §

328.3(d). To be a wetland an area must be inundated or satu-

rated by surface or ground water for long enough periods of

time so that plants that are adapted to wet conditions or that can

live in saturated soils are dominant plant species in that area.

The term “prevalence of vegetation” refers to vegetation that is

dominant in an area or that covers most of a given area under

normal circumstances. Normal circumstances simply means

the condition of an area when undisturbed by man.

5. The parties have stipulated, and this Court concludes,

that the site constituted wetlands at the time of Defendants’

activities.

6. The term “waters of the United States” means all waters

which are currently used, or were used in the past, or may be

susceptible to use in interstate commerce, including all wet-

eee . ene

13a

lands which are adjacent, neighboring or bordering to tributar-

ies of waters which are or may be used in interstate commerce.

In addition, a wetland is “waters of the United States” if the use,

degradation or destruction of it could effect waters which are or

could be used by interstate of foreign travelers for recreational

or other purposes, or from which fish or shellfish are or could

be taken and sold in interstate or foreign commerce. “Waters of

the United States” are also tributaries of the waters described

above. Wetlands adjacent to any of these waters are also wa-

ters. The term “adjacent” means bordering, contiguous, or

neighboring. 33 C.F.R. § 328.3(a).

7. The Court concludes that the site constituted waters of

the United States at the time of Defendants’ activities.

8. The term “pollutant” is broadly defined in the Clean

Water Act to include “dredged spoil, solid waste, . . . rock, sand,

.. . biological materials, . . . and agricultural waste discharged

into water.” 33 U.S.C. § 1362.

9. Dredged or fill material consisting of “dredged spoil,

solid waste, . . . rock, sand, . . . biological materials, . . . and

agricultural waste” constitutes a “pollutant” within the statutory

definition. 33 U.S.C. § 1362.

10. “Fill material” means “any material which replaces por-

tions of the waters of the United States with dry land or which

changes the bottom elevation of a waterbody for any purpose.”

40 C.F.R. § 232(i).

11. Defendants’ clearing, churning, mulching, levelling,

grading, and landclearing of the formerly wooded and veg-

etated site was a discharge of dredged spoil, biological material,

rock and/or sand, each of which is defined as a pollutant by the

CWA, which change the bottom elevation of the site.

12. Despite the prohibition against discharge of pollutants

under the CWA, a person may obtain a permit for the discharge

of any pollutant upon meeting certain applicable requirements

of the CWA. 33 U.S.C. § 1342.

13. The CWA contains explicit exemptions from the permit

requirements. Specifically, a permit is not necessary for the

14a

“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 conser-

vation practices,” . . . or (c) “for the purpose of . . . maintenance

of drainage ditches, . . . 33 U.S.C. § 1344(f)(1)(A), (C).

14. A permit is not required for an activity that would not

“destroy or degrade” waters of the United States because it

would have only a de minimus effect on such waters. The dis-

charger bears the burden of demonstrating that its activity will

not destroy or degrade waters of the United States. 33 C.FR.

§ 232.2, as amended.

15. For purposes of the regulations dealing with exemp-

tions, “an activity associated with a discharge of dredged ma-

terial destroys an area of waters of the United States if it alters

the area in such a way that it would no longer be a water of the

United States.” 33 C.ER. § 232.2, as amended.

16. For purposes of the regulations dealing with exemp-

tions, “an activity associated with a discharge of dredged ma-

terial degrades an area of waters of the United States if it has

more than a de minimus (i.e., inconsequential) effect on the

area by causing an identifiable individual or cumulative ad-

verse effect on any aquatic function.” 33 C.F.R. § 232.2, as

amended.

17. Inorder to qualify for the exemption from the permit re-

quirements for “normal farming,” 33 U.S.C. § 1344(f)(1)(A)

the activities at issue “must be part of an established (i.e., on-

going) farming, silviculture or ranching operation.” 33 C.F.R.

§ 323.4(a)(1)(i).

18. This case is not the type of case where a corporation or

large farming enterprise takes control of a parcel of land and

dramatically alters the composition of the land and runs

roughshod over the requirements of the Clean Water Act. It is

a case of a legitimate factual dispute regarding the use of a par-

cel of land that has remained within the same family for over

half of a century.

ene

15a

19. The determination of “normal agricultural activities” is

a “fact specific” inquiry.

20. The existence of “normal farming” activity turns on an

analysis of whether farming activities are “established and con-

tinuing.”

21. Normal farming activities within the exemptions from

the permit requirements of the CWA connote and establish a

“continuing activity.” They are activities that occur on a con-

tinuing basis as part of an ongoing farming or forestry opera-

tion.

22. The normal farming exemption will apply where land

has been subjected to an established upland farming operation.

23. Section 404(f)(1)(C) of the CWA, 33 U.S.C. §

1344(f)(1)(C), “specifically provides that dredge or fill dis-

charges for the purpose of maintenance (but not construction)

of drainage ditches are exempt” from the permit requirements.

24. “Maintenance of a drainage ditch” means “the physical

preservation of the original, as-built configuration of the ditch.

Maintenance includes the removal of accumulated sediment

and debris.”

25. Unlike the farming activity exemption found in Section

404(f)(1)(A), 33 U.S.C. § 1344(f)(1)(A), there is no “ongoing”

requirement associated with the “maintenance of a drainage

ditch” exemption. Maintenance must be interpreted in the con-

text of an “as needed basis,” and there is no requirement in the

CWA that it must be carried out in a precise or specified way.

26. Notwithstanding the exemptions from the permit re-

quirements, under the “recapture provision” of the CWA, 33

U.S.C. § 1344(f)(2), certain activities do require a permit. Spe-

cifically, a permit will be required where “discharge of dredged

or fill material into the navigable waters incidental to any activ-

ity having as its purpose bringing an area of the navigable wa-

ters into a use to which it was not previously subject, where the

flow or circulation of navigable waters may be impaired or the

reach of such waters be reduced. 33 U.S.C. § 1344(f)(2).

16a

27. In order to prevail on a claim there the recapture provi-

sion applies in this case, two elements must be established.

First, it must be established that Brace’s activities were con-

ducted in order to bring the property into a use to which it was

not previously subject. Second, if this element is established,

it must then be established that Brace’s activities will impair the

flow or circulation of navigable waters or will reduce the reach

of such waters. Both elements must be satisfied in order for the

recapture provision to apply. The Court finds that neither ele-

ment has been proven in this case.

28. The recapture provisions of the CWA clearly apply only

to an area of navigable waters that is brought “into a use to

which it was not previously subject.” 33 U.S.C. § 1344(f)(2).

29. For the purposes of determining whether a discharge as-

sociated with the “maintenance of a drainage ditch” is recap-

tured under Section 404(f)(2), 33 U.S.C. § 1344(f)(2), it is

necessary to determine whether such maintenance activities

would convert wetlands to a use to which the area was not pre-

viously subject.

30. This case involves a thirty-acre site that has been part of

an ongoing farming operation of the Brace family for more than

half a century. The land is not being converted to a use to

which it was not previously subject, nor has significant impair-

ment to the reach or flow of waters been proven. Accordingly,

the Court finds that the recapture provision does not apply to

this case.

31. Defendants’ activities in commencing conversion of the

site prior to December 23, 1985, and in obtaining status as

“commenced conversion” from the ASCS are evidence that

Brace and Brace Farms have established an ongoing farming

operation on the site.

32. Under the exemption provisions of the CWA, the activi-

ties of Brace and Brace Farms do not require a permit because

they constitute: (a) normal farming activities; (6) upland soil

and water conservation practices; and, (c) maintenance of

drainage ditches.

17a

33. Brace has testified that his farming activities on the site

enhanced productivity in the upland areas due to improvements

in water flow, by which water flowed to its natural courses, and

the corresponding improvements to the soil. The Court finds

that Brace’s activities on the site constitute upland soil and

water conservation practices and are thereby exempt from the

permit requirements.

34. Based upon the testimony and documentary evidence of

Defendants’ conduct in preserving and regularly cleaning the

existing drainage system on the site, the Court finds that such

conduct constitutes maintenance of the drainage system, and as

such, is exempt from the permit requirements of the CWA.

18a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Plaintiff

v.

ROBERT BRACE and

ROBERT BRACE FARMS, INC.,

a Pennsylvania Corporation,

Defendants

Civil Action No. 90-229 Erie

ORDER

AND NOW, this day of December, 1993,

after a non-jury trial bifurcated as to liability and upon Findings

of Fact, Conclusions of Law and reasons set forth in the

accompanying Adjudication,

IT IS HEREBY ORDERED that Judgment is

entered in favor of the Defendants, Robert Brace and Robert

Brace Farms, Inc., a Pennsylvania Corporation, and against the

Plaintiff, United States of America.

United States District Judge

Filed November 22, 1994

‘IN THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-3076

UNITED STATES OF AMERICA,

Appellant.

V.

ROBERT BRACE; ROBERT BRACE FARMS, INC.,

a Pennsylvania corporation, :

On appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 90-cv-00229E)

PETITION FOR A WRIT OF CERTIORARI

Argued September 19, 1994

Before: BECKER and COWEN, Circuit Judges

and POLLAK*, District Judge

(Filed: November 22, 1994)

*Honorable Louis H. Pollak, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

20a

OPINION OF THE COURT

COWEN, Circuit Judge.

The United States brought this action in the United States

District Court for the Western District of Pennsylvania against

Robert Brace, individually, and Robert Brace Farms, Inc., a

Pennsylvania corporation (collectively, “Brace” or “defen-

dants”), alleging violations of the requirement in Section 404 of

the Clean Water Act (“CWA”), 33 U.S.C. § 1344, that a permit

be obtained for the discharge of dredged or fill material into

waters of the United States. The United States sought restora-

tion of the site, a permanent injunction and civil penalties pur-

suant to 33 U.S.C. § 1319(d).

The district court bifurcated the action: a trial on liability

issues and a trial on remedy issues. Shortly before the liability

trial, Brace stipulated that at the time of the discharges, “the ap-

proximately thirty-acre site that is the subject of this lawsuit

was wetlands as defined at 33 C.ER. § 328.3(b) and 40 C_ER.

§ 232.2(r).” Pre-Trial Stipulation (Dec. 16, 1993); Appendix

(“App.”) at 40.

The United States, either by stipulation or at trial, estab-

lished the five elements of a prima facie case for violations of

Section 404 of the CWA: (1) defendants admitted that they are

“persons” within the meaning of the CWA; (2) defendants ad-

mitted that the activities at the site were conducted without a

permit; (3) defendants stipulated that the site was a wetland at

the time of the discharges; (4) the district court held that the site

constituted waters of the United States at the time of defen-

dants’ activities; and (5) the district court held that defendant’s

clearing, mulching, churning, and levelling of the formerly

wooded and vegetated site constituted a discharge of pollutants

into the waters of the United States and that defendants paid for

excavation and installation of drainage tubing in an effort to

drain the site.

2la

Brace asserted, and the district court held, that the dis-

charges were exempt from the permit requirement under Sec-

tion 404(f)(1). The court concluded that: (1) Brace’s activities

on the wetland constituted “normal farming activities” exempt

under Section 404(f)(1)(A); and (2) Brace’s activities consti-

tuted “upland soil and water conservation practices” also ex-

empt under that same provision of the CWA. United States v.

Brace, C.A. No. 90-229 (W.D. Pa. Dec. 16, 1993), slip op. at

22-23. In addition, the court found that Brace’s conduct in

“preserving and regularly cleaning the existing drainage system

on the site” was exempt from the permit requirement as “main-

tenance of the drainage system” under Section 404(f)(1)(C).

Id. at 23. The court also held that the recapture provision of

Section 404(f)(2) does not apply to this case because “[t]he

land is not being converted to a use to which it was not previ-

ously subject, nor has significant impairment to the reach or

flow of waters been proven.” Id. at 22.

The district court entered judgment in defendants’ favor.

We hold that the district court incorrectly applied the require-

ments of the CWA permit exemption provisions. We will re-

verse the order of the district court and remand the case to

determine the appropriate remedy.

I.

Brace is a farmer who owns approximately 600 acres of

real property in Erie County, Pennsylvania, including the sub-

ject thirty-acre wetland site (“the site”). Brace Farms, Inc. is a

Pennsylvania corporation engaged principally in the farming

business. Brace’s parents and other family members have al-

ways earned their principal livelihood from farming activities.

Brace purchased a parcel of farm property from his father in

1975. A portion of that property contains the site. The property

has been in the Brace family since the 1930’s when Brace’s

grandfather farmed the land. Prior to 1975, Brace’s father used

the site for pasturing of cows and horses, and Brace’s brother

used the site for pasturing cows until 1976.

22a

Brace purchased the property from his father with the intent

of continuing ard improving his father’s established farming

operation. It was Brace’s intention to integrate the various por-

tions of the property into an overall operation for an effective

and productive farming business. At the time Brace purchased

the property containing the site from his father, the site was

vegetated with areas of scrub brush, including red brush and

briars.

In 1977, Brace sought the advice and assistance of the Ag-

ricultural Stabilization and Conservation Service (“ASCS”) as

part of his plan to develop an integrated farming operation on

the property that includes the site. The ASCS is “an agency of

the United States Department of Agriculture which is generally

responsible for administering commodity production adjust-

ment and certain conservation programs of the Depattment.” 7

C.F.R. § 12.2(a)(2) (1994). Brace’s father had previously

worked with the ASCS to prepare a drainage plan relating to the

site for the purpose of farming the entire property. At the time

he purchased the property from his father, Brace obtained and

utilized the soil and conservation plans that had been prepared

for his father by the ASCS. The drainage system impacts the

ability to produce crops on all parts of Brace’s property.

The existing drainage system was in poor condition and not

yet complete at the time of Brace’s acquisition. Brace began

cleaning the system in 1976 in order to improve upon the exist-

ing system and make it effective for agricultural development.

In the following years, Brace maintained and improved the

drainage system pursuant to the plan recommended by the

ASCS. From 1977 to 1985 the ASCS periodically visited the

site and provided technical assistance and cost-sharing arrange-

ments to Brace.

As of 1977, the essential portions of Brace’s improvements

to the existing drainage system were intact and operating.

Brace’s work in improving upon the interconnected drainage

system progressed continuously from 1977 to 1987, as time,

funds and equipment were available. If the necessary funds had

23a

been available to him in 1977, Brace would have expedited his

farming plans and completed the project at that time. As a re-

sult of Brace’s efforts, by the end of 1979 the site was dry, with

the exception of times of excessive rainfall.

Brace cleared, mulched, churned, levelled, and drained the

formerly wooded and vegetated site from 1985 through 1987.

In 1986 and 1987, Brace paid for excavation in the site and the

burying of plastic tubing or “drainage tile” in an effort to drain

the site. Throughout the 1980's, Brace used appropriate equip-

ment to remove unconsolidated soil, pebbles, silt, and growth

which were impeding water flow. Farmers in the area typically

engaged in such practices.

As a result of Brace’s levelling, spreading, and tiling, Brace

began to grow crops on the site in 1986 and 1987. Brace did

not have a permit issued pursuant to Section 404 of the CWA

authorizing his activities.

The United States became aware of Brace’s activities in

1987. During 1987 and 1988, the United States issued three

orders to Brace, directing him, inter alia, to refrain from further

disturbing the site, so that it could naturally revegetate with

indigenous plant species. After the issuance of these orders,

Brace continued to mow vegetation on the site. In October of

1988, Brace received an administrative complaint in connec-

tion with his farming activities on the site. Brace requested a

hearing to contest the complaint, believing that his activities

were exempt from any and all permit requirements. Prior to the

hearing, the complaint was dismissed.

In the summer of 1988, Brace approached the ASCS in or-

der to gain the status of “commenced conversion from wet-

lands” prior to December 23, 1985 with respect to the site. The

ASCS was authorized to make such a determination under the

Food Security Act of 1985, 16 U.S.C. §§ 3801, et seq. This Act

contains a provision, referred to as the “Swampbuster,” which

denies certain Department of Agriculture benefits to farmers

who produce an “agricultural commodity on converted wet-

land,” unless such conversion commenced before December

24a

23, 1985. 16 U.S.C. §§ 3821, 3822 (1988 & Supp. V 1993).

The ASCS granted the status to the site, finding that Brace’s

on-going farming activities had commenced prior to December

of 1985, which would enable Brace to complete conversion and

produce an agricultural commodity without losing USDA ben-

efits. Letter from Erie County ASCS Office to Robert Brace (9/

21/88); App. at 172. However, the ASCS expressly noted that

“[t]he granting of a commencement... request does not remove

other legal requirements that may be required under State or

Federal water laws.” USDA Form; App. at 173.

In April 1990, as a cautionary measure, Brace approached

the Army Corps of Engineers (“COE”) in an effort to obtain an

after-the-fact permit to conduct his farming activities on the

site, despite his belief that the activities were exempt from the

permit requirements of the CWA. The United States Environ-

mental Protection Agency (“EPA”) requested that the COE not

review an application from Brace for an after-the-fact permit.

Brace was advised that because the matter was then in litiga-

tion, the government would not act on his request for a permit.

Since the time of the cease and desist orders Brace has termi-

nated farming activity on the site except for routinely mowing

the vegetation.

I.

The district court exercised its jurisdiction pursuant to 33

U.S.C. § 1319(b) (1988) and 28 U.S.C. §§ 1331, 1345, 1355

(1988 & Supp. V 1993). Our jurisdiction rests on 28 U.S.C. §

1291 (1988).

Presently, there are three issues before us. The first issue is

whether the district court erred in determining that Brace’s dis-

charges of dredged and fill material into the wetland were ex-

empt from the permit requirement pursuant to Section 404(f)(1)

of the CWA, 33 U.S.C. § 1344(f)(1). The second issue is

whether the district court erred in determining that Brace’s dis-

charges were not “recaptured” by the permit requirement under

Section 404(f)(2) of the CWA, 33 U.S.C. § 1344(f)(2). We

have plenary review over the question of whether the district

25a

court erroneously interpreted the meaning of the applicable

statutes. Moody v. Sec. Pac. Business Credit, Inc., 971 F.2d

1056, 1063 (3d Cir. 1992); Manor Care, Inc. v. Yaskin, 950 F.2d

122, 124 (3d Cir. 1991). To the extent that the court’s ruling on

these issues was also premised on findings of fact, we review

any such findings under the clearly erroneous standard. Zenith

Radio Corp. v. Hazeltime Research, Inc., 395 U.S. 100, 108, 89

S. Ct. 1562, 1568 (1969); Sheet Metal Workers Int’l Ass’n Lo-

cal 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir. 1991).

The third issue is whether the district court erred in deter-

mining that Brace was not subject to liability for violations of

administrative orders. Our review of questions of law such as

this is plenary. Moody, 971 F.2d at 1063; Manor Care, 950 F.2d

at 124.

II.

The Clean Water Act was enacted to “restore and maintain

the chemical, physical and biological integrity of the Nation’s

waters.” 33 U.S.C. § 1251(a) (1988). Section 301(a) of the

CWA prohibits the discharge of any pollutant into navigable

waters of the United States, unless the discharge is authorized

by a permit. 33 U.S.C. §§ 1311), 1362(12) (1988). We rec-

ognize that:

The Act defines the operative terms of this prohibition

broadly. The term “pollutants” includes fill material such

as “dredged spoil, . . . rock, sand, [and] cellar dirt,” 33

U.S.C. § 1362(6), and “navigable waters” means “the

waters of the United States,” id. § 1362(7). In so defining

the term “navigable waters,” Congress expressed a clear

intent “to repudiate limits that had been placed on federal

regulations by earlier water pollution control statutes and

to exercise its powers under the Commerce Clause to

regulate at least some waters that would not be deemed

‘navigable’ under the classical understanding of the term.”

United States v. Pozsgai, 999 F.2d 719, 724 (3d Cir. 1993),

cert. denied, ___ U.S. __. 114 S. Ct. 1052 (1994) (citations

26a

omitted). The district court found that Brace’s clearing, churn-

ing, mulching, levelling, grading, and landclearing of the for-

merly wooded and vegetated site was a discharge of a dredged

spoil, biological material, rock and/or sand, each of which fits

the definition of pollutant. Brace, slip op. at 18.

Section 404 of the CWA authorizes the Secretary of the

Army, through the COE, to issue permits “for the discharge of

dredged or fill material into the navigable waters at specified

disposal sites.” 33 U.S.C. § 1344(a) (1988). See also 33 C.FR.

§ 323.1 (1993). The permit program, as we recognized in

Pozsgai, “is the central enforcement tool of the Clean Water Act

... Unpermitted discharge is the archetypical Clean Water Act

violation, and subjects the discharger to strict liability.” 999

F.2d at 724-25.

The COE and EPA have issued regulations defining the

term “waters of the United States” to include “wetlands,”

among other bodies of water:

(a) The term waters of the United States means

(1) All waters which are currently used, or were used in

the past, or may be susceptible to use in interstate or foreign

commerce, including all waters which are subject to the ebb

and flow of the tide; . . .

(3) All other waters such as intrastate lakes, rivers,

streams (including intermittent streams), . . . wetlands, . . .

the use, degradation or destruction of which could effect in-

terstate or foreign commerce. . .

(5) Tributaries of waters identified in paragraphs (a)(1)

through (4) of this section...

(7) Wetlands adjacent to waters (other than waters that are

themselves wetlands) identified in paragraphs (a)(1)

through (6) of this section.

33 C_FR. § 328.3(a) (1993); 40 C_F.R. § 230.3(s) (1993)

(emphasis in original). The district court found that the site

constituted waters of the United States at the time of Brace’s

activities. Brace, slip op. at 17. The term “wetlands” is defined

27a

those areas that are inundated or saturated by surface or

ground water at a frequency and duration sufficient to

support, and that under normal circumstances do support,

a prevalence of vegetation typically adapted for life in

saturated soil conditions. Wetlands generally include

swamps, marshes, bogs, and similar areas.

33 CER. § 328.3(); 40 CFR. § 230.3(t). The parties have

stipulated that the site constituted wetlands at the time of

Brace’s activities.

Exemptions to the general requirement for a Section 404

permit are contained in Section 404(f) of the CWA. Under

Section 404(f)(1), a permit is not required for: (1) the discharge

of dredged or fill material “from normal farming, silviculture,

and ranching activities such a plowing, seeding, cultivating,

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

and forest products, or upland soil and water conservation prac-

tices,” 33 U.S.C. § 1344(f)(1)(A); and (2) the discharge of

dredged or fill material “for the purpose of . . . the maintenance

of drainage ditches.” 33 U.S.C. § 1344(f(1)(C).

The COE and EPA have promulgated regulations which

provide that the “normal farming activities” exemption is avail-

able only to discharge activities that are “part of an established

(i.g., on-going) farming . .. operation,” and expressly stipulate

that the exemption is not available either: (1) for “[a]ctivities

which bring an area into farming . . . use”; or (2) where “modi-

fications to the hydrological regime are necessary to resume

operations.” 33 CFR. § 323.4(a)(1)Gi) (1993); 40 C.F.R. §

232.3(c)(1)Gi)(A), (B) (1993).

This provision further requires that, to be exempt from the

permit requirement, such activities “must be in accordance with

definitions in 33 C.F.R. § 323.4(a)(1)(iii).”_ 33 C.F.R. §

323.4(a)(1)(ii). The definitions in 33 C_ER. § 323.4(a)(1)(it)

provide that “the redistribution of surface materials by blading,

grading, or other means to fill in wetland areas is not plowing.”

28a

33 C.F.R. § 323.4(a)(1)(iii)(D); 40 C_F.R. § 232.3(d)(4). The

definitions also define “minor drainage” as meaning “[t]he dis-

charge of dredged or fill material incidental to connecting up-

land drainage facilities to waters of the United States, adequate

to effect the removal of excess soil moisture from upland crop-

lands.” 33 C.FR. § 323.4(a)(1)(C)(1)(i); 40 C.F.R. §

232.3(d)(3)(i)(A). This latter definition is modified by 33

C.F.R. § 323.4(a)(1)(iii)(C)(2) and 40 C.ER. § 232.3(d)(3)(ii),

which further provide that the term minor drainage “does not

include drainage associated with the immediate or gradual con-

version of a wetland to a non-wetland . . . . or conversion from

one wetland use to another.”

The COE has also promulgated definitions concerning the

second exemption to the permit requirement, i.e. the exemption

for the maintenance of drainage ditches. The definitions pro-

vide that the exemption from the permit requirement applies to

“maintenance (but not construction) of drainage ditches.” 33

C.FR. § 323.4(a)(3).

Even where Section 404(f)(1) exempts a discharge from the

permit requirements, the discharge may be “recaptured” by the

permit requirement under Section 404(f)(2):

Any discharge of dredged or fill material into the

navigable waters incidental to any activity having as its

purpose bringing an area of the navigable waters into a use

to which it was not previously subject, where the flow or

circulation of navigable waters may be impaired or the

reach of such waters be reduced, shall be required to have

a permit under this section.

33 U.S.C. § 1344(f)(2). The regulation governing the “re-

capture” provision stipulates in part that “[a] conversion of a

section 404 wetland to a non-wetland is a change in use of an

area of waters of the United States,” 33 C.FR. § 323.4(c), and

States as an example, that “a permit will be required for the

conversion of a cypress swamp to some other use . . . when

there is a discharge of dredged or fill material into waters of the

mn

29a

. United States in conjunction with construction of . . . structures

used to effect such conversion.” Id.

Thus, to be exempt from the CWA permit requirement, a

defendant has the burden of demonstrating that proposed activi-

ties both satisfy the requirements of Section 404(f)(1) and avoid

the recapture provision of Section 404(f)(2). United States v.

Akers, 785 F.2d 814, 819 (9th Cir.), cert. denied, 479 US. 828,

107 S. Ct. 107 (1986). See also United States v. Cumberland

Farms, 647 F. Supp. 1166, 1176 (D. Mass. 1986) (“[E]ven if

[defendant] 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).”), aff’d, 826 F.2d 1151 (1st Cir. 1987), cert. de-

nied, 484 U.S. 1061, 108 S. Ct. 1016 (1988). Read together, the

two parts of Section 404(f) provide a narrow exemption for

agricultural activities that have little or no adverse effect on the

waters of the United States. Avoyelles Sportsmen's League, Inc.

v. Marsh, 715 F.2d 897, 926 (Sth Cir. 1983). Congress intended

this narrow exemption. As Senator Muskie, one of the primary

sponsors of the CWA, 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 no

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 A Legislative History of the Clean Water Act of 1977: A

Continuation of the Legislative History of the Water Pollution

Control Act, at 474 (1978).

IV.

The district court held that Brace’s activities on the thirty-

acre wetland site were exempt from Section 404’s permit re-

30a

quirement “because they constitute: (a) normal farming activi-

ties; (b) upland soil and water conservation practices; and (c)

maintenance of drainage ditches.” Brace, slip op. at 22. We

find that the district court’s determination is erroneous as a

matter of law.

The district court’s conclusion that Brace’s discharges on

the thirty-acre site constituted “normal farming activities”

which are exempt from Section 404’s permit requirement can-

not be reconciled with the statute, the applicable regulations,

and case law governing the “normal farming activities” ex-

emption. As we described above, Section 404(f) of the CWA

provides exemptions to the general permit requirement, in-

cluding the discharge of dredged or fill material without a

permit in connection with “normal farming . . . activities such

as plowing, seeding, cultivating, minor drainage, harvesting .

. .or upland soil and water conservation practices.” 33 U.S.C.

§ 1344(f)(1)(A). In determining that Brace’s activities fell

within this provision, the district court relied on facts that are

irrelevant to the inquiry required by the applicable law. The

district court appears to have based its conclusion on a casual

observation that what Brace did was “normal” activity for a

farmer in Erie County, rather than on the application of the

regulatory construction accorded the statutory term “normal

farming activities” by the agencies charged with the imple-

mentation of the statute.!

The applicable regulation provides that, to constitute “nor-

mal farming activity” within the meaning of the statute, the

activity:

must be part of an established (i.e., on-going) farming .. .

operation and must be in accordance with the definitions

in § 323.4(a)(1)(ili) . . . . Activities which bring an area into

farming . . . use are not part of an established operation.

An operation ceases to be established when the area on

1 See 33 U.S.C. §§ 1251(d) and 1344 for the implementation

authority of the EPA and COE.

3la

which it was conducted has been converted to another use

or has lain idle so long that modifications to the

hydrological regime are necessary to resume operations.

33 CER. § 323.4(a)(1)(ii). Brace’s activities between 1985

and 1987 meet neither prong of this provision: they were nei-

ther part of an “established (i.e., on-going) farming operation,”

nor were they conducted “in accordance with the definitions in

§ 323.4(a)(1)(iii).”

; A.

Brace points out that in determining whether farming ac-

tivities are established and continuing, the conduct must be

analyzed by a contextual review of the total activities.

Cumberland Farms, 647 F. Supp. at 1175. He argues that the

district court correctly undertook a contextual analysis in its

determination that the site was an integral part of an established

and on-going farm operation, and Brace’s activities between

1985 and 1987 did not bring a new area into the operation.

Brace, slip op. at 12. The district court based its conclusion on:

(1) its determination that the site is an integral part of the drain-

age system previously installed in adjoining crop producing

fields; (2) its finding that the installation of a drainage system

at the site “is normal farming activity in order to make land

suitable for farming,” because “[e]xtensive underground drain-

age systems are typical and necessary aspects of farming in

Erie County,” id. at 3; and (3) the ASCS determination that

Brace had “commenced conversion” of the site from wetland to

cropland prior to December 23, 1985.

The district court’s reasoning and conclusion are improper.

The district court misinterpreted the meaning of the “established

farming operation” requirement. The district court believed it

was appropriate to examine the relationship of the site in question

to the rest of the land owned by the same property-owner in de-

termining whether land was being brought into farming use.

Brace maintains that it is arbitrary to delineate artificially a por-

tion of the farm and without rational justification sever it from his

overall operations. We cannot agree with this interpretation of

32a

the statute’s requirement.

The regulations provide that, “[a]ctivities which bring an

area into farming . . . use are not part of an established opera-

tion.” 33 C.F.R. § 323.4(a)(1)(ii); 40 C.F.R. § 232.3(c)(1)

(ii)(B) (emphasis added). The regulations do not specify the

precise area to which we should look in determining whether

there is an established farming operation. There are no mini-

mum limits placed on the “area” being brought into farming

use. Thus, we read the regulations to provide that an exemption

is available only to activities that are part of an “established

farming operation” at the site. A proper “contextual review of

its total activities” only requires us to analyze whether such

activities are “established and continuing” on the thirty-acre

wetland site itself. See Cumberland Farms, 647 F. Supp. at

1175 (referring to “the site,” rather than the property owner’s

total land holdings).? Our reading of the regulation recognizes

the statute’s legislative history and is in accord with the strict

construction of the permit exemptions afforded by other Courts

of Appeals. See, e.g., Akers, 785 F.2d at 819, 823; United

States v. Huebner, 752 F.2d 1235, 1240-41 (7th Cir.), cert. de-

nied, 474 U.S. 817, 106 S. Ct. 62 (1985); Marsh, 715 F.2d at

925 n.44.

Brace himself testified that: (1) for the nine-year period

prior to the discharges onto the site, from 1977 to 1986, his

activities at the site included no pasturing or growing of any

crops, but consisted entirely of efforts to drain the wetland; (2)

the site was fully covered in 1983 with indigenous plants, but

that all plants had been stripped from the site in 1987, subse-

2 ‘We recognize that the designation of the use of some very small

sites will be effectively inseparable from the use of the surrounding

land for established farming operations. Thus, we would not

require that every square foot be used for farming in order for a site

to meet the established operation exemption. In this case,

however, it is clearly reasonable to require that all or substantially

all of the thirty-acre site be part of an established operation.

33a

quent to the discharge activities; and (3) the purpose of his

1985-1987 discharges was to drain the wetland and make it

suitable for row cropping. The district court found that “/a/s a

result of Defendants’ levelling, spreading and tiling, Defen-

dants began to grow crops on the site in 1986 and 1987.” Brace,

slip op. at 9 (emphasis added). These facts do not justify the

district court’s determination that Brace’s activities on the site

were exempt from the permit requirements as “normal farming

activities.” Indeed, the factual findings of the district court can

only lead to the opposite conclusion. Brace converted a thirty-

acre site that was not suitable for farming into a site that is suit-

able for farming, and thus “brought an area into farming use.”

Even if Brace’s father’s pre-1975 use of the site for pastur-

ing could be considered to have been a prior, “established farm-

ing operation” on the site, Brace’s drainage activities

demonstrate that the court erred as a matter of law in finding the

exemption from the permit requirement available for his subse-

quent activities. Under the regulations, a farming operation is

not “ongoing” where “modifications to the hydrological regime

are necessary to resume operations.” 33 C.FR. §

323.4(a)(1)(ii); 40 C.F.R. § 232.3(c)(1)(11)(B). Here, Brace

admitted that “modifications to the hydrological regime,” 1.e.,

drainage of the site through excavating and burying four miles

of plastic tubing for drainage, were necessary to grow crops on

the site.

Our determination is consistent with the holdings of numer-

ous other courts that have found the “normal farming” exemp-

tion inapplicable because modifications were required to

resume farming. See, e.g., Akers, 785 F.2d at 819-20 (“[Defen-

dant] argued below that unless he were allowed to complete the

work he had started, the effect of which is to drain the wetland,

he would be unable to engage in the farming activities he had

planned. By his own admission, his activities require substan-

tial hydrological alteration to [the site], and run afoul of the

regulations.”); Bayou Marcus Livestock & Agric. Co. v. EPA,

No. 88-30275, 20 Envtl. L. Rev. (Envtl. L. Inst.) 20445, 20446

(N.D. Fla. Nov. 3, 1989) (“Before plaintiffs could have effec-

34a

tively harvested the timber and begun farming, it was necessary

to dredge, fill, construct roads and dig ditches .. . . [I]f an on-

going operation had been previously functioning, such changes

in the landscape would have been unnecessary.”); United States

v. Larkins, 657 F. Supp. 76, 85-86 n.23 (W.D. Ky. 1987) (“Ac-

tivities cease to be established when the property on which they

were once conducted *. . . has lain idle so long that modifica-

tions to the hydrological regime are necessary to resume opera-

tions.’ Reducing the reach of the [site] required modifications

of the site’s hydrological regime. Consequently, even if the

wetland had a history of farm use, that use was no longer estab-

lished at the time [of defendant’s activities].” (emphasis by

court) (citations omitted)), aff’d, 852 F.2d 189 (6th Cir. 1988),

cert. denied, 489 U.S. 1016, 109 S. Ct. 1131 (1989).

Brace suggests that this line of cases is distinguishable from

his circumstances because of, inter alia, the larger size of the

farms and wetlands at issue in those cases, and the fact that one

Site was a habitat for an endangered species. We cannot agree.

There is no provision in Section 404(f)(1) of the CWA or its

implementing regulations under which either the size of a wet-

land or the effect of discharge activities on wildlife are factors

relevant to determining whether particular discharge activities

are exempt from the permit requirement. Although wetland

protection is Section 404 serves the important function of pro-

tecting wildlife habitats, in addition to several other functions

including flood and erosion control and water purification see

33 C.E.R. § 320.4(b)(2), neither the statute nor the regulations

condition the permit requirement on the existence of adverse

impacts on wildlife or on the particular size of a wetland. In-

deed, we have upheld determinations of both civil and criminal

liability for the discharge of fill material onto a 14-acre wetland

site, a substantially smaller site than Brace’s, where there was

no claim of adverse impact on wildlife. United States v.

Pozsgai, 999 F.2d 719 (3d Cir. 1993), cert. denied,__- US.

, 114 S. Ct 1052 (1994) (civil), and United States v.

Pozsgai, 897 F.2d 524 (3d Cir.), cert. denied, 498 U.S. 812, 111

S. Ct. 48 (1990) (criminal).

35a

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In addition to the district court’s erroneous interpretation of

the “established farming operation” requirement, the district

court erred as a matter of law in finding that Brace’s installation

of a drainage system at the site “is a normal farming activity in

order to make land suitable for farming,” because “[e]xtensive

underground drainage systems are typical and necessary as-

pects of farming in Erie County.” Brace, slip op. at 3. Brace

argues that the court correctly considered the area-specific con-

text in its fact finding inquiry. However, the factual determina-

tion is a legal conclusion, and is not merely a matter for factual

findings. The question is not whether farmers in a particular

county install extensive drainage systems. Rather, the proper

question is whether the activities performed by Brace at this

particular site, and at a time when the CWA applied, were

within the meaning of the statutory term “normal farming ac-

tivities” as defined by the regulations. Regardless of how

“typical” or “necessary” such drainage systems may be in Erie

County, Section 404 of the CWA requires a permit for “activi-

ties which bring an area into farming . . . use,” as opposed to

activities that are part of an “established farming operation.”

Brace did not have an “established farming operation” on the

site prior to his discharges, and brought the site into farming use

by discharging pollutants into waters of the United States.

Moreover, the district court erred in relying upon a determi-

nation from the ASCS in September of 1988 that Brace had

“commenced conversion” of his property from wetland to crop-

land prior to December 23, 1985, as evidence of an “established

farming operation” at the site. The USDA Swampbuster Com-

menced and Third-Party Determinations form signed by Brace

expressly states that “[t]he granting of a commencement . . .

does not remove other legal requirements that may be required

under State or Federal water laws.” USDA Form; App. at 173.

The purpose of the “commenced conversion” determination is

solely to prevent the loss of USDA benefits. The ASCS deter-

mination is not a dispositive factor in our analysis.

Moreover, to the extent that the ASCS determination has

any relevance to our analysis of “normal farming activities,” it

36a

undermines such a conclusion. The very title of the determina-

tion — “commenced conversion” — indicates that Brace’s dis-

charge activities were not part of an ongoing farming operation,

but rather, were directed at converting the wetland to the farm-

ing Operation of growing crops. Even if the ASCS determina-

tion had stated that a conversion had been completed by

December 23, 1985, the CWA permit requirement would not

have been affected. Brace’s activities were unpermitted and

unauthorized when they occurred, and the “commenced con-

version” determination provides no basis for an after-the-fact

legitimization of those activities.

B.

As we explained above, the regulation governing the “nor-

mal farming activities” exemption has a second prong, under

which drainage activities, in addition to being a part of an “es-

tablished farming operation” as defined by the regulation, must

be “in accordance with definitions in § 323.4(a)(1)(iii).” 33

C.F.R. § 323.4(a)(1)(ii). Brace’s activities failed to meet the

requirements of this second prong in addition to not being a

part of an ongoing, established farming operation. Brace’s un-

disputed activities: (1) excavating soil and discharging in con-

nection with burying approximately four miles of plastic tubing

for drainage; (2) levelling and clearing the formerly wooded

and vegetated site; and (3) spreading dredged material, are all

excluded from the activities allowed under 33 C.F.R. §

323.4(a)(1)(iii).

Brace’s installation of four miles of tubing which drains the

Site is barred by the provision’s express prohibition of both: (1)

“the construction of any . . . structure which drains or otherwise

significantly modifies . . . a wetland or aquatic area constitut-

ing waters of the United States”; and (2) “drainage associated

with the immediate or gradual conversion of a wetland to a

non-wetland . . . , or conversion from one wetland use to an-

other.” 33 C.F.R. § 323.4(a)(1)(iii)(C)(2). See also 40 C_F.R.

§ 232.2(d)(3)(D)(ii). Brace’s clearing of all vegetation from the

wetland site, and his spreading of dredged materials onto the

37a

site, are barred by the provision’s express prohibition of both:

(1) “the redistribution of soil, rock, sand, or other surficial ma-

terials in a manner which changes any area of the waters of the

United States to dryland”; and (2) “the redistribution of surface

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

areas.” 33 C.FR. § 323.4(a)(1)(iii)(D). See also 40 C.F.R. §

232.3(d)(4). Accordingly, by definition, Brace’s discharge ac-

tivities cannot constitute “normal farming activities” under the

applicable regulation.

We are unpersuaded by Brace’s assertion that we need not

reach the definitions of 33 CFR. § 323.4(a)(1)(iii) because there

was no conversion from one wetland use to another. Brace bases

his argument on the district court’s determination that Brace sim-

ply maintained and improved his drainage system, and contin-

ued, piece by piece, to farm land which, in one form or another,

had always been used for crops or pasture. Brace asserts that

spreading materials that he dredged from ditches on the site onto

other portions of the site was an ordinary and normal mainte-

nance procedure employed by local farmers. Under the CWA, a

permit is not required for the discharge of dredged or fill mate-

rial for the purpose of maintaining drainage ditches. 33 U.S.C. §

1344(f)(1)(C). Thus, Brace argues and the district court agreed

that Brace’s activities constituted maintenance of drainage

ditches, an activity clearly exempt from the permit requirements

of the CWA.

The exemption from the permit requirements under Section

404(f)(1)(C) for “maintenance of drainage ditches” applies to

“any discharge of dredged or fill material that may result from

_.. the maintenance (but not construction) of drainage ditches.”

33 C.ER. § 323.4(a)(3) (emphasis added). We find the district

court erred as a matter of law in finding that Brace was simply

maintaining rather than constructing the drainage ditches.

Likewise, the conclusion of the district court that the activities

of Brace do not require a permit because they constitute main-

tenance of drainage ditches, Brace, slip op. at 22, is not sup-

ported by the evidence. Brace caused the excavation of the site

38a

and the burying of several miles of plastic tubing to facilitate

drainage. It is not realistic to describe what Brace was doing as

“continuing maintenance.” Brace’s construction of a drainage

System as expressly prohibited by the regulation absent a per-

mit. See Huebner, 752 F.2d at 1242 (defendants’ cleaning and

deepening existing ditches, excavating a new ditch, and dis-

charging dredged materials required a permit when it brought

an area of navigable waters into a use to which it was not pre-

viously subject).

Moreover, any activity that could be described as mainte-

nance of drainage ditches was accomplished, if at all, by dredg-

ing ditches at the site. Brace’s subsequent levelling at the site

and spreading of the dredged material were separate, indepen-

dent activities that are not subject to an exemption from the

permit requirement. This subsequent spreading of dredged

materials onto other portions of the site served no purpose be-

yond converting the thirty-acre wetland site to an upland site

that could accommodate the growing of crops; it did not “re-

sult” from the maintenance of drainage ditches. There is no

statutory or regulatory provision under which the spreading of

the dredged materials is permissible absent a permit. The dis-

trict court erred as a matter of law in holding Brace’s activities

permissible.

Vv.

As we discussed above, Brace has the burden of proving

both that he qualified under Section 404(f)(1) for the normal

farming activities exemption, and that the permit requirement

was not “recaptured” under Section 404(f)(2) of the CWA, 33

U.S.C. § 1344(f)(2). The “recapture” provision stipulates that:

Any discharge of dredged of fill material into the

navigable waters incidental to any activity having as its

purpose bringing an area of the navigable waters into a use

to which it was not previously subject, where the flow or

circulation of navigable waters may be impaired or the

reach of such waters be reduced, shall be required to have

a permit under this section.

39a

33 U.S.C. § 1344(f)(2). The applicable regulation provides

that “[a] conversion of a section 404 wetland to a non-wetland

is a change in use of an area of the waters of the United States.”

33 C.F.R. § 323.4(c).

Initially, the district court incorrectly stated that the appli-

cation of the recapture provision required the United States to

establish the two elements;

First, it must be established that Brace’s activities were con-

ducted in order to bring the property into a use to which it was

not previously subject. Second, if this element is established, it

must then be established that Brace’s activities will impair the

flow or circulation of navigable waters or will reduce the reach

of such waters.

Brace, slip op. at 21. The court’s articulation of the legal

standard implies that the burden of demonstrating “recapture”

is on the United States. This legal standard is erroneous.

Since we have held that Brace’s drainage activities on the

thirty-acre wetland site are not exempt from the CWA permit

requirement under the “normal farming activities” or mainte-

nance of drainage ditches exemptions, we need not reach the

application of the recapture provision. We note, however, that

the district court’s conclusion that the recapture provision does

not apply because “[t]he land is not being converted to a use to

which it was not previously subject, nor has significant impair-

ment to reach or flow of waters been proven,” Brace, slip op.

at 22, is incorrect as a matter of law. The evidence establishes

that Brace’s activities drained the site to convert it from a wet-

land to a new, non-wetland use; the district court found that the

site was inundated with water at various times in the past; the

parties stipulated, and the court found, that the site constituted

a wetland at the time of the discharges; Brace admitted that the

purpose of installing the four miles of plastic tubing at the site

in 1986 and 1987, and of clearing the vegetation from the site

between 1985 and 1987, was to drain the site and make the

ground ready for growing crops; and the court found that as a

result of Brace’s levelling, spreading and tilting, he began to

40a

grow crops on the site in 1986 and 1987. Thus, Brace’s activi-

ties fall squarely within the statutory definition of “recapture.”

VI.

The last issue that we must address is that of Brace’s pen-

alty of violations of the permit requirements of Section 404 of

the CWA and for his violations of the EPA administrative or-

ders. Clearly, under the CWA Section 309(d), Brace is subject

to a civil penalty for his violation of the CWA permit require-

ments. 33 U.S.C. § 1319(d) (1988). Upon remand the district

court must determine the appropriate amount of the penalty,

based on the statutory factors delineated in Section 309(d).

The more difficult issue is whether Brace is also subject to

civil penalties for his noncompliance with the EPA administra-

tive orders. The district court found both that: (1) the EPA’s

administrative order had required Brace “to cease and desist all

activities on the site,” Brace, slip op. at 14; and (2) “Defendants

failed to totally comply with Administrative Orders issued to

them.” Brace, slip op. at 14. However, the district court did not

attach liability for violating the orders, based on its findings at

“Defendants have not disturbed the soil on the site in any sig-

nificant way since being served with the cease and desist or-

ders, and in the view of this Court acted only out of sincere

conviction, although undoubtedly misguided.” Id.

Section 309(d) provides that “any person who violates any

order issued by the Administrator under subsection (a) of this

section, shall be subject to a civil penalty.” 33 U.S.C. § 1319(d).

3 Section 1319(d) provides in pertinent part:

Any person who violates section 1311, 1312, 1316, 1317,

1318, 1328, or 1345 of this title, or any permit condition or

limitation implementing any of such sections in a permit

issued under section . . . 1344 of this title by a State, . . . and

any person who violates any order issued by the

Administrator under subsection (a) of this section, shall be

subject to a civil penalty not to exceed $25,000 per day for

f

\

EE

4la

Section 309(d) does not afford the district court discretion to

grant an exemption from liability for violating the EPA adminis-

trative orders. See, e.g., Atlantic States Legal Foundation v.

Tyson Foods, 897 F.2d 1128, 1142 (11th Cir. 1990) (the language

of Section 309(d) “makes clear that once a violation has been

established, some form of penalty is required.”) However, the

record is not sufficiently clear for us to determine whether civil

penalties are mandatory under the circumstances of this case. We

remand this issue to the district court for further review of

Brace’s non-compliance with the EPA administrative orders.

Thereafter, the district court must determine what, if any, civil

penalties should be assessed against Brace for his violations of

the EPA administrative orders.

VII. CONCLUSION

For the foregoing reasons, the order entered December 17,

1993, granting judgment in favor of the defendants, Robert

Brace and Robert Brace Farms, Inc., will be reversed. This

matter will be remanded to the district court to enter judgment

in favor of the United States and to assess upon further pro-

ceedings appropriate penalties for defendants’ violations of the

permit requirements, and to assess what, if any, penalties are

appropriate for violations of the EPA administrative orders.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

each violation. In determining the amount of a civil penalty

the court shall consider the seriousness of the violation or

violations, the economic benefit (if any) resulting from the

violation, any history of such violations, any good-faith efforts

to comply with the applicable requirements, the economic

impact of the penalty on the violator, and such other matters as

justice may require.

42a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-3076

UNITED STATES OF AMERICA,

Appellant

V.

ROBERT BRACE;

ROBERT BRACE FARMS,

a Pennsylvania Corporation

SUR PETITION FOR R CHEARING

BEFORE: SLOVITER, Chief Judge; BECKER, STAPLETON,

GREENBERG, HUTCHINSON, SCIRICA, COWEN,

NYGAARD, ALITO, ROTH, LEWIS, MC KEE and

SAROKIN Circuit Judges; and POLLAK*, District Judge

The petition for rehearing filed by appellees having been

submitted to the judges who participated in the decision of this

court and to all the other available circuit judges of the circuit

in regular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the cir-

cuit judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for rehear-

ing is denied.

By the Court,

Circuit Judge

Dated: January 9, 1995

43a

RELEVANT STATUTORY

AND REGULATORY PROVISIONS

33 U.S.C. § 1311 (a) provides:

Except as in compliance with this section and sections

1312, 1316, 1317, 1328, 1342, and 1344 of this title, the

discharge of any pollutant by any person shall be unlawful.

33 U.S.C. § 1344(a) provides in relevant part:

The Secretary may issue permits, after notice and

opportunity for public hearings for the discharge of

dredged or fill material into the navigable waters at

specified disposal sites.

33 U.S.C. § 1344(f) provides in relevant part:

(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;

* * *

is not prohibited by or otherwise subject to regulation

under this section or section 301(a) or 402 of this Act{.]

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

navigable waters incidental to any activity having as its

purpose bringing an area of the navigable waters into a use

to which it was not previously subject, where the flow or

circulation of navigable may be impaired or the reach of

such waters be reduced, shall be required to have a permit

under this section.

44a

33 C.ER. § 323.4 provides in relevant part:

(a) General. Except as specified in

paragraphs (b) and (c) of this section, any discharge of

dredged or fill material that may result from any of the

following activities is not prohibited by or otherwise

subject to regulation under section 404:

(1)G@) Normal farming, silviculture and

ranching activities such as plowing, seeding, cultivating,

minor drainage, and harvesting for the production of food,

fiber, and forest products, or upland soil and water

conservation practices, as defined in paragraph (a)(1)(iii)

of this section.

(ii) To fall under this exemption, the

activities specified in paragraph (a)(1)(i) of this section

must be part of an established (i.e., on-going) farming

silviculture, or ranching operation and must be in

accordance with definitions in § 323.4(a)(1)(iil). Activities

on areas lying fallow as part of a conventional rotational

cycle are part of an established operation. Activities which

bring an area into farming, silviculture, or ranching use are

not part of an established operation. An operation ceases

to be established when the area on which it was conducted

has been coverted to another use or has lain idle so long

that modifications to the hydrological regime are

necessary to resume operations. If an activity takes place

outside the waters of the United States, or if it does not

involve a discharge, it does not need a section 404 permit,

whether or not it is part of an established farming,

silviculture, or ranching operation.