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

Citation: 17 ELR 21270
No. No. 86-1983, 826 F.2d 1151/26 ERC 1393/(1st Cir., 08/18/1987) Liability & remedy aff'd

The court holds that a farming corporation violated §§ 301 and 502 of the Federal Water Pollution Control Act (FWPCA) from 1977 to 1985 by converting freshwater wetlands in the Great Cedar Swamp in Massachusetts into farmland without first obtaining an FWPCA § 404 permit from the Army Corps of Engineers, and upholds the district court's injunctive order to restore the wetlands and imposing a fine of $540,000, of which $390,000 may be returned upon restoration of the wetland. The court first holds that Cumberland did not qualify for the headwaters nationwide permit, which authorizes discharges in areas within and adjacent to streams that flow at a rate of less than five cubic feet per second, so long as any erosion is prevented. Cumberland did not rebut at trial the Corps' evidence that neither condition had been met. As part of this holding, the court rules that it is not necessary to prove that any erosion from the fill has an adverse effect on downstream waters, only that erosion has occurred. The court next holds that Cumberland did not qualify for the unasserted jurisdiction exception to the individual permit requirement, which provides that fill activities in areas not historically navigable and over which the Corps has not asserted jurisdiction do not require a permit, because the exception only applies to permitting under § 10 of the Rivers and Harbors Act. The court holds that Cumberland is not relieved of its equitable obligation to restore the wetland to its 1977 condition when it first began violating the Act [17 ELR 21271] on the basis of a short-lived and poorly-worded Corps regulation in 1982 that appeared to make the unasserted jurisdiction exception also apply to the FWPCA § 404 permitting program. The court further holds that it is not inequitable to order the wetland's restoration to 1977 conditions on the basis of Cumberland's mere intentions to convert the entire wetland to farmland when it purchased the property in 1972, prior to regulation under FWPCA. The court rejects Cumberland's assertion that an after-the-fact permit is required under the Corps' balancing of public interests regulations, holding that the balancing of interests only applies to proposed projects in wetland areas. In any event, the after-the-fact permit application cannot be accepted until after the enforcement action is completely resolved.

The court rules that a district court has the authority under FWPCA §§ 101 and 309 to issue a restorative order to achieve compliance with the Act. The court also holds that the restorative order is neither speculative nor harmful to third parties, since it confers maximum environmental benefits, is achievable as a practical matter, bears an equitable relationship to the degree and kind of wrong being remedied, accounts for and protects nearby housing and cranberry bogs, and protects Cumberland's own farmlands converted prior to 1977.

[The district court decisions appear at 17 ELR 20301 and 20310.]

Counsel for Appellant
Allan van Gestel
Goodwin, Procter & Hoar
Exchange Place, Boston MA 02109
(617) 570-1000

Counsel for Appellee
Edward J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-5993

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and MALETZ,* Senior Judge.