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

Citation: 17 ELR 20301
No. No. 85-0846-Y, 647 F. Supp. 1166/25 ERC 1077/(D. Mass., 10/16/1986) Ruling on liability

The court holds that defendant's conversion of wetlands in the Great Cedar Swamp in Massachusetts to agricultural use without obtaining a permit from the Corps of Engineers violated § 404 of the Federal Water Pollution Control Act (FWPCA) since defendant's activity did not fall within § 404(f)(1)'s agricultural exemption and was not covered by the Corps' nationwide permits. The court initially holds that defendant's property is wetlands and thus subject to the FWPCA's permit requirements. The court then holds that defendant's farming activity does not fall within § 404(f)(1)'s agricultural exemption. Defendant is not engaged in an "established and continuing" farming activity, since there is no evidence that any portion of the site was farmland prior to defendant's acquisition and § 404(f)(1)'s exemptions are narrowly construed. Even if defendant could establish that it is exempt under § 404(f)(1) from the permit requirements, its extensive modification of a major aquatic system would be within the statute's coverage under the recapture provision in § 404(f)(2).

The court next holds that defendant is not excused from obtaining an individual permit by two of the Corps' nationwide permits. The headwaters nationwide permit does not apply because defendant's drainage ditches have increased the level of erosion and turbidity. Similarly not applicable is the Corps' nationwide permit that applies to structures or work completed in waterbodies over which the Corps was not asserting jurisdiction at the time the activity occurred. Defendant's activities are neither "structures" nor "work" as defined in the Corps' regulations.

[The court's order establishing a remedy and civil penalty appears at 17 ELR 20310.]

Counsel for Plaintiff
Richard E. Welch III, Ass't U.S. Attorney
1107 John W. McCormack Fed'l Bldg., USPO & Cthse., Boston MA 02109
(617) 223-3181

Counsel for Defendant
Alan Van Gestel, Marjorie R. Corman
Goodwin, Procter & Hoar
Exchange Place, Boston MA 02109
(617) 570-1000