United States v. Whichard

No. 82-1983 (4th Cir. August 29, 1983)

The Fourth Circuit holds that wetlands bordering a small backwater stream connecting with a navigable river are wetlands "neighboring" navigable waters and subject to Army Corps of Engineeers permit jurisdiction under § 404 of the Federal Water Pollution Control Act (FWPCA). The government had sought civil contempt orders against the appellee for discharging fill in wetlands in alleged violation of previously issued injunctions. The lower court ruled the wetlands exempt from permit requirements because they were adjacent to a nontidal stream or "headwaters" that itself was not subject to FWPCA jurisdiction. The court rules that the wetlands fall under § 404 because they are adjacent to navigable waters, and to exclude them because they are also adjacent to "headwaters" would vitiate Congress' intent to extend statuatory protection against water pollution as broadly as possible. The court remands the case for imposition of civil contempt sanctions.

Counsel for Appellant
Albert M. Ferlo Jr., Barry Neuman, Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Dennis I. Moore; Samuel T. Currin, Ass't U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530

Counsel for Appellee
David P. Voerman
Perdue, Voerman & Alford
P.O. Box 1534, New Bern NC 28560
(919) 638-2626

Joined by Winter and Russell, JJ.

Bryan, J.:

The United States challenges the refusal of the Federal Court for the Eastern District of North Carolina to find the defendant, Warren Whichard, in civil contempt. According to the Government, Whichard filled in an area of marshland on his property, located near the Pamlico River, in violation of two injunctions issued by the District Court. A United States Magistrate found that Whichard's activities did not contravene the previous orders and recommended that Whichard not be held in contempt. The District Court accepted this advice and the Government appeals. Because we hold that the wetlands in question are protected by Federal regulations, we now reverse the final oredr of the Court and remand the case for further proceedings in accordance with the views herein stated.

In June of 1973, the Government brought an action against Whichard based on the Rivers and Harbors Act of 1899. 33 U.S.C. §§ 401-454. This suit resulted in a consent judgment that enjoined Whichard from:

Excavation or fill activities, or dredging or depositing, or suffering to be deposited or causing to be deposited refuse upon the banks of the Pamlico River without first obtaining any and all licenses and permits required by the laws of the United States, and particularly Title 33, United States Code, Section 401 et. seq.

A second action was initiated against the defendant in July of 1976 grounded on both the Rivers and Harbors Act and the Federal Water Pollution Control Act Amendments. 33 U.S.C. § 1251. Like its predecessor, this suit also eventuated in a consent judgment enjoining Whichard from engaging in:

Any excavation, filling, or construction activities other than that specified herein within the waters of the Pamlico River and canals which connect with it, or upon such marshlands adjacent thereto as may fall within the jurisdiction of Title 33, United States Code, Sections 1251 et. seq., without first having obtained the necessary permits from the appropriate federal, state, and local agencies.

Believing Whichard had violated both injunctions, the Government filed two motions for adjudication of civil contempt in November 1978. The parties agreed to have the case heard by a United States Magistrate, who subsequently ordered the defendant to appear at a show cause hearing. In particular, the order charged:

That sometime between September 1977 and September 1978, the defendant placed fill in areas A, B, C and D . . . That said areas appear to be "wetlands adjacent" to the Pamlico River as defined by 33 C.F.R. 323.2(c) and (d).

Sitting without a jury, this Magistrate found that Whichard had filled areas B, C and D and that these areas constituted wetlands within the meaning of the regulations.¹ In light of this, he recommended that Whichard be ordered to take remedial steps with respect to area D.² As to areas B and C, he determined that these were adjacent to a small body of water that connected with the Pamlico, but remained unaffected by the River's tides.³ He deemed this stream to be among the River's "headwaters"⁴ and thus Whichard's failure to secure a permit did not violate the regulations. The Government objected, declaring that the necessity for a permit should be predicated upon the adjacency of the wetlands to the Pamlico instead of the stream. The District Court though, accepted these findings and recommendations without comment.

II.

In enacting the 1972 Amendments to the Federal Water Pollution Control Act, Congress sought to establish "an all-encompassing program of water pollution regulation." City of Milwaukee v. Illinois, 451 U.S. 304, 318 [11 ELR 20406] (1981). Congress intended to extend the coverage of the Act to the maximum extent possible under the Commerce Clause. United States v. Texas Pipe Line Co., 611 F.2d 345, 347 [10 ELR 20184] (10 Cir. 1980). Even a tributary that does not continually discharge water into a navigable river is within the ambit of the Act. Id.; see also Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55 [8 ELR 20480] (9th Cir. 1978) (salt ponds no longer subject to tidal inundation because of dikes are subject to the Act).

As amended by the Clean Water Act of 1977, the Act authorizes the Secretary of the Army, through the Corps of Engineers, to issue permits for the discharge of dredged or filled material into navigable waters. 33 U.S.C. § 1344(a). Navigable waters are defined as "the waters of the United States, including the territorial seas." Id. § 1362(7).

Pursuant to these statutes, the Corps promulgated regulations defining "waters of the United States," as:

(2) Coastal and inland waters, lakes, rivers, and streams that are navigable waters of the United States including adjacent wetlands;

(3) Tributaries to navigable waters of the United States, including adjacent wetlands (manmade nontidal drainage and irrigation ditches excavated on dry land are not considered waters of the United States under this definition);

(4) Interstate waters and their tributaries, including adjacent wetlands;

. . . .

33 C.F.R. § 323.2(a). The regulations additionally state that "adjacent," means "bordering, contiguous or neighboring," including "[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like . . . ." Id. § 323.2(d) [emphasis added].

Presently, the Magistrate found that areas B and C are wetlands as described by 33 C.F.R. § 323.2(c) and that the small stream they border connects with the Pamlico River.⁵ Areas B and C then, clearly neighbor the Pamlico and accordingly are adjacent to that river. In consequence, Whichard was obligated to obtain a permit from the Corps before conducting fill activities. The application of the headwaters exception to this backwater stream would vitiate the intent of Congress to extend statuatory protections from water pollution to the maximum extent possible. Texas Pipe Line Co., 611 F.2d at 347; see also United States v. Byrd, 609 F.2d 1204, 1209 [9 ELR 20797] (7th Cir. 1979). Therefore, the judgment of the District Court is reversed and the case is remanded for the imposition of sanctions upon the defendant.

REVERSED AND REMANDED.

1. The dispute as to area A was resolved by the parties.

2. Area D is not at issue in this appeal.

3. The Magistrate more fully described Sections B and C as "an area lying between a State road and connected with the Pamlico River." The stream was said to be a small body of water approximately 20 feet in width and 1 to 2 feet in depth, which is not affected by the tides of the Pamlico River, other than severe wind tides and which generally contains surface drainage or runoff water from the surrounding 276 acres of land.

4. Under 33 C.F.R. § 323.2(i), "[t]he term 'headwaters' means the point on a non-tidal stream above which the average annual flow is less than five cubic feet per second." [footnote omitted]. Fill may be discharged without a permit into non-tidal streams and adjacent wetlands above the headwaters provided four conditions are met. See 33 C.F.R. § 323.4-2.

5. The definition of "wetlands" is provided by 33 C.F.R. § 323.2(c):

The term "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.