ELR Citation: ELR 20343
No(s). 94-3076 (3d Cir. Nov 22, 1994)

The court reverses a district court decision that a farmer's clearing and draining of a 30-acre wetland constituted normal farming activities exempt under §404(f)(1) of the Federal Water Pollution Control Act (FWPCA) from the §404 permitting requirements. The court first notes that the district court determined that the farmer's activities constituted a discharge of pollutants. The court next notes that the parties stipulated that the site constituted wetlands at the time of the activities. The court holds that in determining whether the farmer's activities constituted part of an "established farming operation," and are thus exempt as normal farming activities, the district court incorrectly examined the relationship of the 30-acre site to the rest of the farmer's land. The court holds that under the applicable regulations, the exemption is available only to activities that are part of an established farming operation at the site. This 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. Based on the district court's findings, the court holds that the farmer converted a site that was not suitable for farming into a site that is suitable for farming. Turning to the argument that the use of the site as pasture before the farmer purchased it was a prior "established farming operation," the court holds that the regulations provide that a farming operation is not ongoing when modifications to the hydrological regime are necessary to resume operations. In this case, the farmer admitted that modifications to the hydrological regime, i.e., drainage of the site through excavating and burying four miles of plastic tubing for drainage, were necessary to grow crops on the site.

The court holds that the district court erroneously found that the farmer's installation of the drainage system was normal farming activity because extensive underground drainage systems are typical and necessary aspects of farming in the county where the site is located. The proper question is whether the activities the farmer performed at the site were within the meaning of the statutory term "normal farming activities" as defined by the regulations. The court also holds that the district court erroneously relied on the U.S. Agricultural Stabilization and Conservation Service's determination that the farmer commenced converting his property from wetlands to cropland before December 23, 1985, as evidence of an established farming operation at the site. The commenced-conversion determination is solely to prevent the loss of U.S. Department of Agriculture benefits, and the title of the determination—"commenced conversion"—indicates that the farmer's discharge activities were not part of an ongoing farming operation, but rather were directed at converting the wetland to the farming operation of growing crops.

The court next holds that the farmer's activities failed to meet 33 C.F.R. §323.4(a)(1)(ii)'s requirement that draining activities must be in accordance with the definitions in §323.4(a)(1)(iii) in order to qualify as normal farming activities. The farmer's installation of tubing that drains the site is barred by §323.4(a)(1)(iii)'s express prohibition against constructing any structure that drains wetlands and the prohibition against drainage associated with the conversion of a wetland to a nonwetland. Also, the farmer's clearing of vegetation from the site and his spreading dredged material on it are barred by the provision's express prohibition against redistributing surface materials in a manner that changes any U.S. waters to dryland and the prohibition against redistributing surface materials to fill wetlands. The court further holds that the district court erred in finding that the farmer was maintaining drainage ditches, an activity exempt from FWPCA permit requirements under FWPCA §404(f)(1)(C), rather than constructing drainage ditches. The farmer caused the excavation of the site and the burying of several miles of plastic tubing to facilitate drainage. Moreover, any activity that could be described as maintaining drainage ditches was accomplished by dredging ditches at the site. The farmer's subsequent levelling at the site and spreading of the dredged material were separate, independent activities not subject to an exemption from the permit requirement.

The court next holds that the farmer has the burden of proving both that he qualifies for the normal farming activities exemption under FWPCA §404(f)(1) and that the permit requirement is not "recaptured" under §404(f)(2). Section 404(f)(2) requires a permit for discharges incidental to any activity that has the purpose of bringing navigable waters into a use to which it was not previously subject if the flow of such waters may be impaired. The court notes that the district court incorrectly concluded that the land is not being converted to a use to which it was not previously subject and that it incorrectly concluded that significant impairment to the flow has not been proven. The evidence establishes that the farmer drained the site to convert it from a wetland to a new nonwetland use. In addition, the court holds that under FWPCA §309(d), the farmer is subject to a civil penalty for his violation of FWPCA permit requirements and directs the district court to determine the appropriate amount of the penalty on remand, based on the statutory factors delineated in §309(d). The court also remands to the district court the issue whether the farmer must pay civil penalties for his failure to comply with U.S. Environmental Protection Agency cease-and-desist orders. The court directs the district court, after such determination, to determine what, if any, civil penalties should be assessed against the farmer for violating such orders.

[Briefs in this litigation are digested at ELR PEND. LIT. 66342.]

Counsel for Appellant
William B. Lazarus
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellees
Samuel W. Braver, Henry McC. Ingram
Buchanan & Ingersoll
600 Grant St., 58th Fl., Pittsburgh PA 15219
(412) 562-8800

Before Becker, Cowen, and Pollak,^* JJ.