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United States v. Deaton

ELR Citation: 30 ELR 20508
Nos. Nos. 98-2256, -2370, 209 F.3d 331/(4th Cir., 04/07/2000)

The court holds that developers' sidecasting of dredged spoil in a jurisdictional wetland constitutes the discharge of a pollutant under the Clean Water Act (CWA). The court first holds that the deposit of dredged or excavated material from a wetland back into the same wetland constitutes the discharge of a pollutant under the CWA. The CWA defines "discharge of a pollutant" to mean any addition of any pollutant to navigable waters from any point source. The definition of pollutant, in turn, specifically includes dredged spoil that has been discharged into water. Consequently, the piles of dirt dredged up by the developers were pollutants within the meaning of the CWA. Further, the practice of sidecasting—placing dredged spoil next to the ditch from which it was dug—constitutes the discharge of a pollutant to waters. Contrary to the developers' argument, the statute does not prohibit the addition of material; it prohibits the addition of any pollutant. There can be an addition of a pollutant without an addition of material, at least when an activity transforms some material from a nonpollutant into a pollutant, as occurred here. In the course of digging a ditch, the developer removed earth and vegetable matter from the wetland. Once removed, the material became dredged spoil, a statutory pollutant and a type of material that up until then was not present on the developers' property. It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undisturbed state. Once that material was excavated from the wetland, its redeposit in the same wetland added a pollutant where none had been before.

Counsel for Plaintiff
Ethan G. Shenkman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Raymond S. Smethurst Jr.
Adkins, Potts & Smethurst
One Plaza E., Ste. 600, Salisbury MD 21803
(410) 749-0161

Before Wilkinson and Luttig, JJ.