ELR Citation: ELR 20243
No(s). Civ. S-84-1276 RAR (E.D. Cal. Jan 15, 1985)

The court temporarily enjoins conversion of a large wetland area to farmland, finding that the activities in controversy fail to fit under any of Federal Water Pollution Control Act (FWPCA) §404's farming exemptions. The court first holds that the government has established a strong likelihood of success on the merits. A substantial portion of defendant's land appears to be wetlands regulated under the Act. Defendant's construction of dikes, a road, ditches, and channel fills constitute the discharge of dredged or fill material under §404, and the heavy equipment used to move the earth are point sources. Defendant bears the burden of establishing that his activities are exempt. Congress intended that the scope of the §404(f)(1) exemptions be limited.

Defendant's attempt to rely on the formal farming activity exemption in §404(f)(1)(A) fails because his activities are not part of an established farming operation, but would convert swamp into farmland through major hydrologic modifications. Even had defendant's activities qualified for exemption under §404(f)(1)(A), they would be recaptured for regulation under (f)(2); his activities, taken together, would bring wetlands into a use to which they have not previously been subject and would result in an impairment of water flow and circulation as well as a reduction of the wetlands' reach.

Defendant's attempt to rely on the farm pond and irrigation ditch exemption in §404(f)(1)(C) also fails, primarily because he has constructed no irrigation ditches or farm ponds. Defendant attempts to rely on an interpretive regulation that seems broader than the statute, but such a regulation cannot expand the scope of the statute. In any case, defendant's activities would still be recaptured under (f)(2). Defendant's activities also do not fall within the farm road exemption, since he has failed to follow best management practices to avoid wetlands destruction.

The court rejects, as obviously groundless, defendant's claims that state water rights save him from operation of the FWPCA.

Having found a strong likelihood of government success on the merits, the court turns to the other criteria for issuing an injunction. Defendant's disruption of the functions of the wetlands constitutes an irreparable injury to a valuable public resource. Finally, the balance of hardships fails to tip in defendant's favor; his injuries are largely self-inflicted through his disdain of the permitting process.

The court enjoins defendant from dredging or filling until he either gets a permit, receives notice from the Corps that a permit is not necessary, or fails to hear from the Corps within 15 days after the submits an application.

Counsel for Plaintiff
John Wittenborn, Special Ass't U.S. Attorney
3305 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 448-2331

Geoffrey Worstell
U.S. Army Engineers District, Sacramento
650 Capitol Mall, Sacramento CA 95814
(916) 440-3574

Counsel for Defendant
Lanny T. Winberry
Giattina & Winberry
Suite 180, 777 Campus Commons Rd., Sacramento CA 95825
(916) 920-1100