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Avoyelles Sportsmen's League v. Marsh

ELR Citation: 13 ELR 20942
Nos. Nos. 79-2653, 82-3231, 715 F.2d 897/19 ERC 1841/(5th Cir., 09/26/1983) Aff'd in part

The Fifth Circuit, affirming in part the district court decision, 11 ELR 20315, rules that private landowners were required to obtain a dredge and fill permit under §404 of the Federal Water Pollution Control Act (FWPCA) prior to engaging in landclearing activities on forested wetlands in Louisiana. Initially, the court rules that the district court erred in substituting its own wetlands determination for the Environmental Protection Agency's (EPA's) wetlands determination instead of reviewing the EPA determination under the arbitrary and capricious standard.

Since the challenge to the EPA determination involves questions of law and the reasonabless of that decision turns on an analysis of documentary evidence, the court decides against a remand and holds that the EPA determination that 80 percent of the tract is a wetlands was not arbitrary or capricious. The court rules that EPA's decision to examine the soil, hydrology, and additional species of vegetation of the tract in reaching its wetlands determination did not constitute rulemaking subject to the Administrative Procedure Act's notice-and-comment requirements. The EPA methodology was an interpretative application of, and not an amendment to, the Army Corps of Engineers' 1977 wetlands definition and that interpretation was consistent with the regulations, the FWPCA's expansive definition of waters of the United States, and the Constitution. The private appellants had the opportunity, at the administrative proceeding and the trial, to challenge the EPA methodology; in addition, that methodology would be required under EPA's existing 1980 regulations. Further, EPA's factual findings, although differing somewhat from those of the Agency's experts and the district court, were not arbitrary or capricious.

After noting that no purpose would be served by vacating and remanding to the Corps the district court's decision that the private appellants' landclearing activities required a §404 permit, the court upholds the district court's factual findings. Next, the court affirms the district court's ruling that the landclearing activities constituted a discharge of a pollutant into waters of the United States under §502(12) of the Act. "Discharge" includes redepositing in the wetlands materials cleared from the wetlands. Requiring the "addition" of materials would thwart the purposes of the Act. Further, the activities occurred in navigable waters, and the bulldozers were "point sources" within the meaning of the Act. In addition, the district court correctly determined that the private appellants were discharging "fill material" into the wetlands since their landclearing activities were designed to replace aquatic area with dry land. But the court finds no need to decide if the activity also was "dredging" within the terms of the Act. Finally, the court rules that those activities did not fall within the normal farming activities exemption of §404(f) since appellants' landclearing constituted a change in the use of the wetlands from a forest to a soybean field.

The court also rules that the claim that the §404 permit requirement is a taking requiring just compensation is not ripe since private appellants had yet to comply with the permit procedures. The court affirms the district court's refusal to grant the Louisiana Department of Agriculture's motion to intervene, ruling that the district court had no jurisdiction.

Counsel for Appellants
Charles K. Reasonover
Deutsch, Kerrigan & Stiles
4700 One Shell Sq., New Orleans LA 70139
(504) 581-5141

Edwin R. Woodman Jr.
Department of Natural Resources
P.O. Box 44396, Baton Rouge LA 70804
(504) 342-4500

Counsel for Appellees
Michael Osborne
3420 Prytania St., New Orleans LA 70115
(504) 891-4418

James T. B. Tripp Jr.
Environmental Defense Fund, Inc.
475 Park Ave. S., New York NY 10016
(212) 686-4191

Before CLARK, Chief Judge, THORNBERRY and RANDALL, Circuit Judges.