|
15 ELR 20243 | Environmental Law Reporter | copyright © 1985 | All rights reserved United States v. AkersNo. Civ. S-84-1276 RAR (E.D. Cal. January 15, 1985)The court temporarily enjoins conversion of a large wetland area to farmland, finding that the activities in controversy fail to fit under any of Federal Water Pollution Control Act (FWPCA) § 404's farming exemptions. The court first holds that the government has established a strong likelihood of success on the merits. A substantial portion of defendant's land appears to be wetlands regulated under the Act. Defendant's construction of dikes, a road, ditches, and channel fills constitute the discharge of dredged or fill material under § 404, and the heavy equipment used to move the earth are point sources. Defendant bears the burden of establishing that his activities are exempt. Congress intended that the scope of the § 404(f)(1) exemptions be limited. Defendant's attempt to rely on the formal farming activity exemption in § 404(f)(1)(A) fails because his activities are not part of an established farming operation, but would convert swamp into farmland through major hydrologic modifications. Even had defendant's activities qualified for exemption under § 404(f)(1)(A), they would be recaptured for regulation under (f)(2); his activities, taken together, would bring wetlands into a use to which they have not previously been subject and would result in an impairment of water flow and circulation as well as a reduction of the wetlands' reach. Defendant's attempt to rely on the farm pond and irrigation ditch exemption in § 404(f)(1)(C) also fails, primarily because he has constructed no irrigation ditches or farm ponds. Defendant attempts to rely on an interpretive regulation that seems broader than the statute, but such a regulation cannot expand the scope of the statute. In any case, defendant's activities would still be recaptured under (f)(2). Defendant's activities also do not fall within the farm road exemption, since he has failed to follow best management practices to avoid wetlands destruction. The court rejects, as obviously groundless, defendant's claims that state water rights save him from operation of the FWPCA. Having found a strong likelihood of government success on the merits, the court turns to the other criteria for issuing an injunction. Defendant's disruption of the functions of the wetlands constitutes an irreparable injury to a valuable public resource. Finally, the balance of hardships fails to tip in defendant's favor; his injuries are largely self-inflicted through his disdain of the permitting process. The court enjoins defendant from dredging or filling until he either gets a permit, receives notice from the Corps that a permit is not necessary, or fails to hear from the Corps within fifteen days after the submits an application. Counsel for Plaintiff Geoffrey Worstell Counsel for Defendant Ramirez, J.: Findings of Fact and Conclusions of Law; Order Granting Preliminary Injunction The motion of plaintiff, UNITED STATES OF AMERICA, for a preliminary injunction came on regularly for hearing before the undersigned on October 24, 1984. John Wittenborn, Special Assistant United States Attorney, and Geoffrey Worstell, Esq., of the United States Army Corps of Engineers, appeared on behalf of plaintiff, UNITED STATES OF AMERICA. Lanny T. Winberry, Esq., appeared on behalf of defendant, ROBERT W. AKERS. Having considered the voluminous pleadings, declarations and exhibits filed in support of and in opposition to the motion, the arguments of respective counsel, the proposed findings of fact and conclusions of law, as well as the objections and counter-proposed findings of fact and conclusions of law, the Court now issues the following Findings of Fact and Conclusions of Law and Order Granting Preliminary Injunction pursuant to Rule 52 and Rule 65, Federal Rules of Civil Procedure. The evidence before the Court shows that Mr. Akers is the owner of certain real property he acquired in the early part of 1984, consisting of approximately 9,600 acres located partly in Modoc County and partly in Lassen County, California. The Army Corps of Engineers has determined that between one-fourth and one-third of the acreage, to wit, 2,889 acres known locally as the Big Swamp, is wetlands acreage subject to Corps regulation under the Clean Water Act, 22 U.S.C. § 1251, et seq. The District Engineer has also found that the primary agricultural activity in this area has been the haying of native vegetation. The present lawsuit does not represent the first time that the ongoing controversy between Mr. Akers and the Corps of Engineers has been before this Court. The Court can and does take judicial notice of the case file relating to a prior lawsuit filed by Mr. Akers on May 4, 1984, entitled Akers v. United States, et al., Civ. S-84-0598 RAR. The prior lawsuit arose after Mr. Akers developed a farming plan for his property which, in effect, provided for the leveling and filling of the Big Swamp area and diversion of the waters which normally feed it. The Corps of Engineers advised Mr. Akers that he needed a permit for the proposed work, pursuant to § 404 of the Clean Water Act, 33 U.S.C. § 1244. Mr. Akers rejected the Corps' position and filed his lawsuit, in which he sought injunctive relief to preclude the Corps from exercising regulatory jurisdiction over his land or project. After a full hearing on May 15, 1984, this Court denied Mr. Akers' motion for a preliminary injunction. The Court determined that Mr. Akers had established no likelihood of success on the merits. It also found that he had failed to demonstrate a possibility or probability of irreparable harm, as opposed to monetary injury, and had likewise failed to establish a balance of hardships tipping sharply in his favor and/or serious questions for litigation. Thereafter, Mr. Akers dismissed his lawsuit voluntarily. Prior to the voluntary dismissal of Akers' suit, the Corps had entered into a contract with the U.S. Army Corps of Engineers Waterways Experiment Station (WES) for an extensive study and determination of the extent and boundaries of the naturally occurring wetlands on the Akers' property, and for an investigation and report on the nature and extent of past agricultural practices on the land. On August 30, 1984, Col. Arthur Williams, District Engineer, Sacramento District, notified Mr. Akers by letter that he had determined that the land included 2,889 acres of wetlands subject to regulation under the Clean Water Act. He also notified Mr. Akers that the proposed farming plan was not exempt from the permit requirements of the Clean Water Act on the basis of the historical farming practices. The wetland determination made by WES and adopted by Col. Williams was based upon an extensive analysis of vegetation, hydrology and soils and resulted from the study of maps, photographs and nine days of actual on-site investigation. Indeed, Dana Sanders states in his declaration that the wetland report of the Waterways Experiment Station (WES) was based on more technical data than is available in more than 99 percent of all wetland determinations ever made by the Corps of Engineers. Furthermore, the defendant himself conceded for purposes of the preliminary injunction hearing only that wetlands regulated by the Corps under the Clean Water Act do exist on his property. During the course of its investigation of Mr. Akers' activities and its assessments of his future plans, the Corps consulted with the United States Environmental Protection Agency (EPA) concerning the application of § 404(f) of the Clean Water Act. EPA concurred in the Corps' conclusion that the proposed dredging and construction work on Mr. Akers' property was not exempt from § 404 permit requirements. In late July, the Corps issued a cease and desist order to stop Mr. Akers from building a dike across the western portion of the wetland. Relying on Mr. Akers' attorney's representation that Mr. Akers was merely reconstructing an existing dike, the Corps withdrew its cease and desist order. In September 1984, the Corps investigated reports that earth-moving activities were being conducted on Mr. Akers' property in Big Swamp. The Corps' aerial inspections confirmed the on-going construction of an earthen dike, running east-west the length of the wetlands, dividing them roughly in half, as well as other activities, as described more fully below. On September 13, 1984, the Corps issued a cease and desist order to Mr. Akers. The cease and desist order did not mention channels of the Pit River. Nevertheless, Mr. Akers continued to fill in channels of Ash Creek on the east side of his land, apparently based upon his own interpretations of the exemptions to the Clean Water Act. There is persuasive evidence that Mr. Akers or his agents have recently engaged in the following earth-moving activities in Big Swamp, to wit: (1) the construction of an east-west dike, now approximately three miles long, which bisects the wetland; (2) the leveling of portions of the wetland area south of the east-west dike, including the filling of certain Ash Creek channels by use of discing equipment; (3) construction of a road across the northwest portion of his property which blocks several overflow channels of the Pit River; and (4) construction of a large ditch and the filling of several Ash Creek channels on the east side of the property. Heavy earth-moving equipment was used to disc and scrape wetland soil from wide swathes on either side of the three mile dike. The soil was then used to construct the three mile dike. Various sections of the southern wetlands were disced with farm equipment. Prior to the discing, the areas were ripped with a chisel plow (or "ripper") which was used to slice through the soil so that the discing would more effectively pulverize the soil. The road in the northwest portion of the property has not been culverted, bridged or otherwise designed so as to prevent restriction of flood flows; in fact, it closes overflow channels of the Pit River. The three mile east-west dike and the dikes and ditches running north to south at either end of the three mile dike may, if not broken or dismantled, prevent the natural flow of water to the southern wetlands, causing them to dry up. It appears likely that if this work is allowed to remain in place, or allowed to be expanded, an extensive area of the Big Swamp wetlands will be converted to non-wetland, thereby significantly reducing the reach of Big Swamp. In addition, the flow and circulation in Ash Creek and the overflow channels of the Pit River may be impaired. Furthermore, many highly significant aquatic functions now performed by the Big Swamp wetlands area will be lost or impaired. Mr. Akers does not have, and has not applied for, a § 404 Clean Water Act permit from the Corps of Engineers for any work on his property. XII The government has submitted evidence to establish that the Big Swamp is considered an important waterfowl wintering area and that it attracts significant numbers of waterfowl in the spring and summer months for nesting and staging activities. Bald eagles and peregrine falcons, both federally listed endangered species, are known to occur in the area, as are golden eagles, which are federally listed as rare species. Cackling geese, whose numbers in California have dwindled seriously in recent years, use the Big Swamp as a staging area in the spring. More common waterfowl species also use and inhabit the Big Swamp in large numbers. The defendant asks this Court to look at each of his earth-moving activities individually, rather than to scrutinize the overall cumulative impact of his activities. But this Court does not agree with either the proposed methodology or the conclusion to which the defendant contends it should lead. Moreover, although Mr. Akers had contended that his recent work is only intended to be an intensification of his past farming activities, experts and others who have witnessed his work and assessed its effects, have persuaded this Court that the work will subject his property to new uses potentially detrimental to the Waters of the United States. This Court finds that Mr. Akers has either misunderstood or callously disregarded the potential environmental consequences of his activities. The evidence supports an inference that Mr. Akers' activities, if not enjoined, will have the effect of splitting the Big Swamp into northern and southern halves, with the potential eventual effect of drying up the southern portion. Unless Mr. Akers has a different plan not disclosed to this Court, it appears that he intends this effect in order to pursue new and previously untried agricultural activities in the Big Swamp area. Although the defendant contends vigorously that isolated instances of farming of upland crops has taken place during the past decades in various sectors of his land, he has not persuasively disputed the Corps' contention that the only established farming operation in the wetland portion of his land prior to his recent construction work was the haying of native wetland grasses. The record also supports the Corps' finding that the ongoing irrigation practices on the land consisted of the use of temporary low spreader dams placed annually in various channels on his property to spread water more evenly over the acreage. The United States filed suit against Mr. Akers on October 3, 1984, seeking permanent injunctive relief, restoration of the property to its natural condition and civil penalties. The government also sought temporary and preliminary injunctive relief to restrain Mr. Akers from depositing dredged or fill material into the wetlands and channels on his land during the pendency of this lawsuit, alleging that otherwise the wildlife, plant life and hydrological regime in the area would be threatened with irreparable injury. The government's application for a temporary restraining order (hereinafter "TRO") was heard and granted on October 6, 1984. Mr. Akers was restrained from discharging dredged or fill material into the waters on his property unless and until he invited the Corps to determine, and the Corps did determine, which waters he could work in without a permit. Waters are not subject to Corps regulations if they are not "waters of the United States" within the meaning of the Clean Water Act. The United States now seeks a preliminary injunction to extend the application of the prohibitory provisions of the restraining order throughout the pendency of this lawsuit. The Court is persuaded by the government's arguments in reaching its decision to issue the preliminary injunction. The findings now made by this Court regarding plaintiff's preliminary injunction motion necessarily follow closely the findings set forth in the temporary restraining order, since the same standard and facts are involved. Due to the extensive briefing by both sides since the hearing regarding the TRO, however, the Court now has a much clearer and more detailed understanding of the facts underlying this dispute and the manner in which counsel for both sides view and interpret the law. Therefore, the Court now has the opportunity and ability to make these detailed findings of fact and to set forth the following conclusions of law. To establish its right to a preliminary injunction,the moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. These are not separate tests, but the outer reaches "of a single continuum." Los Angeles Memorial Coliseum Com's v. National Football League, 634 F.2d 1197 (9th Cir. 1980). The plaintiff has established a strong likelihood of success on the merits of its claims under the Clean Water Act, 33 U.S.C. § 1251, et seq. The objective of the Clean Water Act is to restore and maintain the physical, chemical, and biological integrity of the nation's waters. 33 U.S.C. § 1251(a). Subject to certain exemptions, §§ 301 and 404 of the Clean Water Act, 33 U.S.C. §§ 1311 and 1344, prohibit the discharge of dredged or fill material from point sources into the waters of the United States without a permit from the Corps of Engineers. By defining the term "navigable waters" in the Clean Water Act to mean "the Waters of the United States, including the territorial seas," 33 U.S.C. § 1362(7), Congress intended to assert federal jurisdiction over the nation's water "to the maximum extent permissible under the Commerce Clause of the Constitution." Natural Resources Defense Council v. Callaway, 392 F. Supp. 685 [5 ELR 20285] (D.D.C. 1975); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-756 [8 ELR 20480] (9th Cir. 1978); Utah v. Marsh, 740 F.2d 799, 802-804 [14 ELR 20683] (10th Cir. 1984); Avoyelles Sportmen's League v. Marsh, 715 F.2d 897, 914-916 [13 ELR 20942] (5th Cir. 1983); United States v. Byrd, 609 F.2d 1204, 1209-1211 [9 ELR 20757] (7th Cir. 1978). The term specifically includes adjacent wetlands. 33 C.F.R. § 323.2. Avoyelles, supra; Byrd, supra. This Court concludes that plaintiff has established a strong likelihood that a substantial portion of the property in question constitutes waters of the United States subject to the Clean Water Act. The construction of the dikes, road, ditches, and channel fills, and possibly some of the discing (to the extent it may level that land so as to fill channels or convert wetlands to uplands) involve the discharge of dredged or fill material. The heavy equipment used to move and deposit the earth are point sources. Avoyelles Sportmen's League v. Marsh, supra. The defendant contends that his recent activities fall within any of several exemptions to the permit requirement set forth in § 404(f)(1) of the Clean Water Act, 33 U.S.C. § 1344(f). Mr. Akers bears the burden of establishing that his activities are all exempt.United States v. Frezzo Bros., Inc., 546 F. Supp. 713 [12 ELR 21133] (E.D. Penn. 1980), appeal after remand, 703 F.2d 62 [13 ELR 20584] (3rd Cir. 1983). The general rule requires the one claiming the benefits of an exception to the prohibition of a statute to establish the applicability of the statutory exception. U.S. [v.] First City National Bank of Houston, 386 U.S. 361, 366, 87 S. Ct. 1088, 1092 (1967). The Court finds a strong likelihood that Mr. Akers will not be able to do so. Section 404(f)(1) states that: Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material [from activities specified in (A) through (F)] is not prohibited by or otherwise subject to regulation under this section or section 301(a) or [15 ELR 20246] 402 of this Act (except for effluent standards or prohibitions under section 307). The specific exemptions follow. But the 404(f)(1) exemptions are limited by § 404(f)(2), commonly referred to as the "recapture provision," which provides: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters, into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. Thus, in order to be exempt from regulation, a discharge must not only fall within § 404(f)(1), but must also escape recapture under § 404(f)(2). The legislative history of the 1977 Amendments to the Clean Water Act evidences a strong Congressional intent to limit the scope of the § 404(f)(1) exemptions. As Senator Muskie, sponsor of the legislation explained, "New subsection 404(f) provides that Federal permits will not be required for those narrowly defined activities that cause little or no adverse effects either individually or cumulatively." 3 Leg. Hist. 474 (emphasis added). See also statements by Rep. Harsha, id. at 420, and Senator Wallop, id. at 530. The numerous statements in the legislative history concerning what § 404 does not exempt are also telling. For example, Senator Muskie explained, "[T]he exemptions do not apply to discharges that convert extensive areas of water to dry land or impede circulation or reduce the reach or size of the water body." 3 Leg. Hist. 474; see also statement of Senator Baker, id. at 523. As Senator Stafford stated, "[P]ermits will continue to be required for those farm, forestry, and mining activities that involve the discharge of dredged or fill material that connect [sic — presumably intended to be "convert"] water to dry land including, for example, those occasional farm or forestry activities that involve dikes, levees or other fills in wetland or other waters." 3 Leg. Hist. 485. See also, Senate Report, 4 Leg. Hist. 710 (permit review necessary for discharges to convert a hardwood swamp to another use through dikes or drainage channels). The defendant attempts first and foremost to rely upon the exemption set forth in § 404(f)(1)(A) which applies to the discharge of dredged or fill material: from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products or upland soil and water conservation practices . . . Defendant contends that because his recent activitiesare related to his intentions to farm crops, they are exempt as "normal farming" activities. Defendant's contention is patently incorrect. The exemption for "normal farming" applies only to activities which are: part of an established (i.e., ongoing) farming, silviculture, or ranching operation. Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation. Activities bringing an area into farming, silviculture, or ranching use are not part of an established operation. An operation ceases to be established when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations. 33 C.F.R. § 323.4(a)(1)(ii). The plaintiff has amply demonstrated that the area of the Big Swamp has never been subjected to any established upland farming operations. Accordingly, defendant's proposed farming plans with its extensive diking and ditching is not within the scope of the "normal farming" exemption. Defendant has failed to show that his dike and road-building activities are either enumerated in § 404(f)(1)(A) or are similar in nature to those listed. Indeed, as the statement of Senator Stafford cited above indicates, dikes and levees in wetlands are not exempt. See also, 33 C.F.R. § 323.4(a)(1)(iii)(C)(2). The plaintiff has offered ample evidence to prove that the recent work has significantly modified the hydrological regime in the wetlands area, and the defendant himself has consistently argued that unless he is allowed to complete the work he has started, he will be unable to engage in the farming activities he plans. By his own admission, therefore, defendant's proposed work is not part of an "ongoing" or "established" farming practice. Indeed, it appears that major hydrologic modifications will be required for defendant's farming plan to succeed. Consequently, the defendant is unlikely to establish that his activities fall within the exemptions for "normal farming." Even if Mr. Aker's activities did fall within the "normal farming" exception of § 404(f)(1)(A), they would remain subject to permit requirements under the exception to the exemption contained in subsection (f)(2). Read together, these two subparagraphs of § 404(f) provide a narrow exemption for agricultural and silvicultural activities that have little or no adverse effect on the nation's waters. Avoyelles Sportmen's League, Inc. v. Marsh, 715 F.2d 897, 926 [13 ELR 20942] (5th Cir. 1983). It is clear that Mr. Akers' activities are bringing the southern wetlands into a use to which they have not previously been subject, and which is resulting in an impairment of water flow and circulation as well as a reduction of the wetlands' reach. Mr. Akers argues that his activities will not bring Big Swamp into a use to which it was not previously subject, on the ground that upland crops could have been grown there, whether or not they actually were. This Court declines to adopt such a strained interpretation of the term "subject to" in § 404(f)(2). The proper inquiry is not what could have been done but what was done in the past and its relationship to what Mr. Akers is attempting to do now. Furthermore, Mr. Akers' argument ignores the question of whether there will be a change in Big Swamp from wetlands (i.e., waters of the United States) to dry land (no longer waters of the United States). Whether or not there have been isolated incidents of attempted farming of upland crops in the swamp during dryer periods, there is little doubt that the area is still a wetland within the meaning of the Clean Water Act. Mr. Akers' activities taken as a whole appear to this Court to be incidental to an effort to convert the area so that it may be farmed in a way which is inconsistent with its remaining a wetland. Furthermore, § 404(f)(2) indicates that a permit is necessary even for discharges that are only "incidental to" an activity which is intended to or will foreseeably bring about the destruction of the wetland (or other change in use), where the reach of the waters will be reduced or their flow or circulation impaired. In order to trigger § 404(f)(2), the discharges themselves need not be the sole cause of the change in use or impairment of reach, flow, or circulation. Therefore, this Court rejects defendant's request that it look at each activity in isolation or assess their impacts individually. While this Court cannot look into the mind of Mr. Akers to discern his full intentions, the reasonably foreseeable consequence of his activities as a whole is the destruction of a significant wetland. Accordingly, plaintiff has established a probability of success on its claim that defendant's recent activities are not encompassed within the reach of § 404(f)(1)(A) and, in any event, would fall within the subsection (f)(2) exception to the (f)(1)(A) exception. Defendant also argues that his activities are exempt under § 404(f)(1)(C) which provides that a permit is not required for a discharge of dredged or fill material: for the purpose of construction or maintenance of farm or [15 ELR 20247] stock ponds or irrigation ditches, or the maintenance of drainage ditches . . . . The primary problem with defendant's attempt to invoke the irrigation ditch exemption is that his recent activities have not involved the construction of any irrigation ditch in the wetlands. Instead, his major structure is a dike approximately three miles in length. Defendant nevertheless contends that his work, including his dike, constitutes "irrigation facilities" within the meaning of 33 C.F.R. § 323.4(a)(3) (1983) which provides in relevant part: Discharges associated with irrigation facilities in the waters of the United States are included within the exemption unless the discharges have the effect of bringing these waters into a use to which they were not previously subject and the flow or circulation may be impaired or reach reduced of such waters. Defendant's proposed reading of the language of the regulation is obviously overbroad. The regulation cannot expand the scope of the statutory exemption, and the statute exempts from permit requirements only stock ponds, irrigation ditches, and the maintenance of drainage ditches. Obviously, then, the term "irrigation structures" as used in the interpretive regulation constitutes no more than a shorthand term for the activities set out at greater length in the statute. Moreover, defendant's attempt to argue that a dike can be an "irrigation facility" within the meaning of 33 C.F.R. § 323.4(a)(3) is at direct odds withthe language of the interpretive regulation defining "minor drainage" as that term is used in the "normal farming" exemption, § 404(f)(1)(A). That regulation, 33 C.F.R. § 323.4(a)(1)(iii)(C)(2) provides in relevant part: In addition, minor drainage does not include the construction of any canal, ditch, dike or other waterway or structure which drains or otherwise significantly modifies a . . . wetland or aquatic area constituting waters of the United States. Any discharge of dredged or fill material into the waters of the United States incidental to the construction of any such structure or waterway requires a permit. [Emphasis added] Indeed, the text of 33 C.F.R. § 323.4(a)(3) set forth above has just been changed in order to clarify "the types of appurtenant structures to irrigation facilities for which the discharges associated with such structures are exempt from the provisions of these regulations." 49 F.R. at 39479. The new text of the regulation was published in the Federal Register on October 5, 1984, and it confirms that "discharges associated with major dams and diversion projects and other large-scale facilities which are not subsidiary to irrigation ditches are clearly not included in the exemption." Id. The complete new text of 33 C.F.R. § 323.4(a)(3) provides simply: Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance [but not construction] of drainage ditches. Discharges associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exemption. Defendant's three mile dike is not one of the types of structures specified in the new regulation and is clearly not subsidiary to any irrigation ditch. Finally, even if defendant's activities otherwise qualified for exemption under the "irrigation ditch" provision, the exemption is further qualified by subsection (f)(2) which, as discussed above, subjects the defendant's activities to permit requirements even if the (f)(1) exemptions apply. Defendant also asserts that § 404(f)(1)(E) serves to exempt his road-building activity in the northwest area of his property, but the very text of the exemption belies his claim. Subsection (f)(1)(E) provides in relevant part that no permit is required for the discharge of dredged or fill material: for the purpose of construction or maintenance of farm roads . . . where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized . . . . Defendant has neither claimed nor established that any attempt was made by him to minimize the adverse effects of his road construction and the result of his activity has been to block overflow channels of the Pit River, which feed the wetlands of his property. These statutory criteria have been translated by regulation into a number of required best management practices (BMP's) which must be complied with for the exemption to apply. 33 C.F.R. § 323.4(a)(6). Among those BMP's is a requirement that roads be culverted, bridged or otherwise designed to prevent restriction of flood flows. The evidence clearly indicates that Akers failed to comply with any such management practices. Accordingly, defendant has not demonstrated that his road is exempt under 404(f)(1)(E). Moreover, the road construction exemption, like all the subsection (f)(1) exemptions, is further subject to the (f)(2) exception which requires a permit for defendant's activities for the reasons discussed above. Defendant also argues that the Clean Water Act either constitutes an impermissible violation of his state water rights or that the Act automatically exempts activities which can be traced to the exercise of state water rights. This argument, as presented by counsel for defendant in his briefs and at oral argument, is meritless. Cearly, the Clean Water Act itself does not impermissibly violate state water rights. Moreover, any argument that a grant of state water rights somehow prevents the United States from asserting jurisdiction within its constitutional limits is obviously groundless. See United States v. Ciampitti, 583 F. Supp. 483, 495-96 (D.N.J. 1984). Nor does the Clean Water Act automatically exempt from regulation any activities which have some bearing on individual exercise of state-allocated water rights. As the legislative history of § 101(g) of the Act makes clear, The requirements of section 402 and 404 permits may incidentally affect individual water rights . . . It is not the purpose of this amendment to prohibit those incidental effects . . . It is designed to protect historic rights from mischievous abrogation by those who would use an act, designed solely to protect water quality and wetands, for other purposes. It does not interfere with the legitimate purposes for which the act was designed. (Emphasis added) Statement of Senator Wallop (sponsor of § 101(g)), 3 Leg. Hist. 532. Having determined that the government is likely to prevail on the merits of its claim, the Court turns its attention to the question of resulting injury. There is some authority for the proposition that the government need not even make a showing of irreparable injury in order to qualify for injunctive relief under the Clean Water Act. See, e.g., United States v. Ciampitti, supra, 585 F. Supp. at 498, n.12. This Court need not grapple with the issue, however, because the government has clearly made a showing of irreparable injury in this case. Wetlands serve a variety of on-going ecological and aesthetic functions, and the Big Swamp wetland is no exception. They are particularly notable for their role in supporting migratory birds and in controlling erosion and protecting downstream water quality. In numerous declarations of hydrological and wetland experts, the United States has established that Mr. Akers' recent [15 ELR 20248] earth-moving activities have already, at least temporarily, cut off the southern half of the wetlands on his property from their natural water sources. These recent activities as well as those which Mr. Akers could reasonably be expected to carry out during the pendency of this litigation if not enjoined, have disrupted and/or are likely to continue to disrupt significantly the exological functions of Big Swamp. Disruption of those functions constitutes an irreparable injury to a valuable public resource. Should Mr. Akers continue his activities, including the leveling of his land through discing, the placement of fill material in channels and the construction of dikes and other structures, damage to the area will be compounded. Since the Court has determined that the United States is likely to prevail on the merits of its claims and has demonstrated the probability of irreparable injury if the preliminary injunction is denied, it remains only to be considered whether the granting of the injunction will cause a balance of hardships tipping sharply in Mr. Akers' favor. The Court finds that it will not.Mr. Akers claims that the injunction will cause him such financial damage that he "might" lose his property which "could conceivably" result in bankruptcy. Such speculative statements fall far short of a showing of irreparable injury. Furthermore, as this Court observed during the course of Mr. Akers' prior related case, Mr. Akers either knew or should have known when he purchased the property that he might become involved in a regulatory dispute with the Corps of Engineers. His tactics in proceeding with the work without authorization have brought him to his current financial situation. Therefore, any injury is self-inflicted. The Court notes that had Mr. Akers applied for a permit at the conclusion of the prior case, the dispute might well have been resolved by now. To the extent that any of the foregoing Findings of Fact are deemed to be Conclusions of Law, or to the extent that any of the foregoing Conclusions of Law are deemed to be Findings of Fact, the same shall be deemed Conclusions of Law or Findings of Fact, as the case may be. IT IS HEREBY ORDERED that Mr. Akers, his agents, employees and all persons under his control and supervision, are restrained from engaging in any and all deposits of dredged or fill material into the waters on his property, including the wetlands previously delineated by the Corps of Engineers, as well as all channels, unless he: (1) Obtains a permit from the Corps of Engineers; or (2) Submits a proposal for dredge or fill activities, which he asserts are not within the Corps of Engineer's regulatory jurisdiction, and (a) is informed in writing by the District Engineer that a permit is not necessary for the work he proposes; or (b) is not informed in writing by the District Engineer whether a permit is necessary for the work he proposes within fifteen (15) days of receipt of his proposal by the District Engineer (including weekends and holidays). Notwithstanding any provision of this Order, Mr. Akers shall comply in good faith with all lawful cease and desist orders issued to him by the Corps of Engineers with respect to dredge and fill activities on his property.1 1. Thus, in the event that Mr. Akers submits a proposal for dredge and fill activities which he asserts are not within the Corps' jurisdiction, to which the Corps does not respond in writing within fifteen (15) days, Mr. Akers may immediately begin work on the activities within his proposal. However, should a subsequent cease and desist order by the Corps of Engineers order him to halt work on these activities, Mr. Akers must comply with this and all other lawful orders of the Corps. 15 ELR 20243 | Environmental Law Reporter | copyright © 1985 | All rights reserved |