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United States v. Akers

ELR Citation: 16 ELR 20538
Nos. No. 85-1750, 785 F.2d 814/24 ERC 1121/(9th Cir., 03/26/1986) Aff'd

Affirming the district court injunction, 15 ELR 20243, the court rules that appellant's diking, draining, and water diverting activities, conducted in a wetland on his property so as to make the area suitable for upland crops, do not fall under any of the Federal Water Pollution Control Act §404(f) farming exemptions. The court notes that the wetland on appellant's land, locally known as the "Big Swamp" falls under the Corps of Engineers' jurisdiction, and absent an exemption, appellant must apply for a §404 permit before engaging in dredge-and-fill activities. The court then rules that §404(f)(1)(A), the normal farming exemption, does not apply where, as here, the discharge of dredge or fill material accompanies a change to upland farming, a new operation in the wetlands. In dicta, the court rejects appellee's position that a §404 permit would have to be obtained if a farmer were switching from one type of wetland crop to another. Appellant is not covered by §404(f)(1)(C), irrigation exemption, the court holds, because appellant's dike, regardless of how characterized, changes the hydrological character of the Big Swamp and adjacent streams. The court rejects appellant's argument that the court below impaired his state allocated water rights in violation of §101(g), noting that water rights and water quality interests be accommodated in the permit process, which appellant has shunned. The road building exemption, §404(f)(1)(E), is not applicable either, the court holds, because appellant did not utilize the best management practices or follow guidelines clearly stated in the implementing regulations to avoid wetlands destruction. Further, the court rules that the §404(f)(2) recapture provision, which requires permits for otherwise exempted activities that bring a new use into the waters of the United States, impede their flow or narrow their reach, would apply. If appellant were to continue his activities, the existing wetlands would dry up. Moreover, the court rules, to change from wetland to upland farming is a new use. Finally, the court holds that the district court's injunction was not overbroad or an abuse of discretion.

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

Counsel for Defendants-Appellants
Lanny T.Winberry
Giattina & Winberry
Suite 180, 77 Campus Commons Rd., Sacramento CA 95825
(916) 920-1100

Before Kennedy and Beezer, JJ.