United States
Environmental Protection
Agency
Office of Enforcement
and Compliance
Assurance (2201A)
EPA 300-N-99-013
Enforcement Alert
Volume 2, Number 8
Office of Regulatory Enforcement
September 1999
EPA Takes Enforcement Actions Against Violators
Who Ditch Wetlands and Channelize Streams
Misapplication of 1998 Court Ruling May Lead to Federal, State Enforcement Actions
The U.S. Environmental Protection
Agency (EPA), the U.S. Army
Corps of Engineers (Corps), and state
agencies are coordinating compliance
and enforcement actions to address un-
authorized discharges associated with
ditching and excavation activities in
About
Enforcement Alert
"Enforcement Alert" \
published periodically by the
Office of Regulatory
Enforcement to inform and
educate the public and regulated
community of important
environmental enforcement
issues, recent trends and
significant enforcement actions.
This information should helpthe
regulated community anticipate
and prevent violations of federal
environmental law that could
otherwise lead to enforcement
action. Reproduction and wide
dissemination of this newsletter
is encouraged.
See Page 4 for useful EPA
Websites and additional
resources.
Eric V. Schaeffer
Director, Office of
Regulatory Enforcement
Editor: Virginia Bueno
(202) 564-8684
bueno.virginia@epamail.epa.gov
(Please email all address and
name changes or subscription
requests for this newsletter.)
wetlands and other waters of the United
States.
As a part of this national effort, EPA,
in cooperation with the Corps and the
North Carolina Department of Environ-
ment and Natural Resources, issued ad-
ministrative orders July 1 to three North
Carolina developers, Nelson McRae of
Wilmington, and Bill Cameron and Terry
Turner of Mallory Creek Development
in Pender County, for
alleged violations of Sec- ^^^^^^m
tions 404 and 402 of the
Clean Water Act (CWA).
The orders require the
restoration of wetlands
and compliance with
federal requirements
preventing off-site dis-
charges of storm water
or other pollutants to
waters of the United
States.
ticularly concerned that an overly broad
reading of the D.C. Circuit's 1998
"Tulloch" decision by some develop-
ers may have accelerated the destruc-
tion of wetlands through illegal dis-
charges.
Where appropriate, EPA will take
all actions necessary to ensure compli-
ance with all sections of the CWA. In
addition, EPA encourages all entities
Ditching, draining and channelization may
result in illegal discharges from:
• Mechanized landclearing;
• "Sidecasting" (redeposit of material into
wetlands next to a ditch);
• Redepositing material into streams after
removal of minerals; and
• Unpermitted stormwater runoff from ditching
activities.
EPA and North Caro-
lina expect to issue sev-
eral similar restoration orders in the fu-
ture.
In light of rapid, large-scale destruc-
tion of wetlands, creeks and streams in
recent months, EPA has been increas-
ing its enforcement of Section 404 and
other CWA requirements in an attempt
to stem these losses. Estimates of work
from June 1998 to March 1999 indicate
that more than 150 miles of rivers,
streams and water courses, and nearly
30,000 acres of precious wetlands
across the nation have been ditched,
drained and/or channelized. EPA is par-
involved in activities that may result in
discharges to wetlands or other waters
of the United States to comply with ap-
plicable federal and state regulations.
Clean Water Act, Section
404: Discharges of
Dredged or Fill Material
Under the CWA, discharges of
dredged or fill material to wetlands and
other waters of the United States are
generally prohibited except where au-
Continued on page 2
>n is found on the Internet at http://www.epa.gov/oeca/ore/enfalert
-------
Enforcement Alert
Continued from
page 1
thorized by a Section 404
permit issued by the Corps.
or by a state approved to
administer the permit
program. Section 404 and
other permit review pro-
cesses are not aimed at pre-
venting development but in-
stead are designed to avoid
unacceptable adverse envi-
ronmental impacts and, to
the extent adverse impacts
cannot be avoided, ensure
they are appropriately mini-
mized or compensated.
Clean Water Act,
Section 402:
NPDES Perm its for
Storm Water and
Other Discharges
In addition to applicable Section 404
requirements, any person who dis-
charges or proposes to discharge from
a point source must apply for and ob-
tain a permit before discharging. (A
point source is a discernable, confined
and discrete conveyance from which
pollutants are or may be discharged.)
Moreover, persons who engage in con-
struction activities (including clearing,
grading, and excavation) that disturb
five or more acres are required to ob-
tain a National Pollutant Discharge
Elimination System (NPDES) Section
402 storm water permit under the
Phase I storm water regulations (See
40 C.F.R. 122.26). Amendments to the
Clean Water Act established a two-
phased approach to addressing storm
water discharges. Phase II of the storm
water program is under development
and will address storm water discharges
from certain small municipal separate
storm water systems and construction
sites. Under the storm water permit-
Recent estimates indicate that more than 150 miles of rivers, streams and
water courses and as many as 30,000 acres of in valuable wetlands across the
United States have been ditched, drained and/or channelized. (U.S. EPA
photograph)
ting program, discharges of storm wa-
ter generally require "best management
practices" to control pollutant runoff.
Such activities also may be subject to
regulation under other federal and state
statutes (for example, the Endangered
Species Act), whether or not a dis-
charge results from the activity.
Why is the Protection of
Wetlands and Streams
Important?
Wetlands are among the most envi-
ronmentally beneficial habitats in the
nation. Wetlands include marshes,
swamps, bogs, and similar areas that
develop between open water and dry
land. Wetlands have specific water re-
gimes and harbor unique soils and plants
that provide food and habitat for fish
and wildlife. These precious natural re-
sources also provide the public with
recreational opportunities and aesthetic
pleasures. In addition, wetlands serve
many ecological functions such as
water purification, erosion control,
flood control, and water recharge dur-
ing droughts and dry weather. The un-
yielding destruction of wetlands cur-
rently occurring may result in increased
property flooding for downstream
landowners, water quality impairment,
loss of wildlife, and negative effects
on recreational and commercial fish-
eries.
Creeks, intermittent streams, and
other water bodies are essential to en-
vironmental and public health. These
waters provide fish breeding, nursery
and feeding habitat, water sources for
Continued on page 3
SEPTEMBER 1999
-------
Enforcement Alert
Continued from page 2
wildlife, and storm water channels dur-
ing flood events. The diverse channel
bottom and contours in streams pro-
vide oxygen and mineral assimilation
into the mixing waters, improving wa-
ter quality. Excavation and
channelization of these systems de-
stroys the value as habitat, and causes
increased downstream flooding and se-
vere erosion.
D.C. Circuit's Decision on
the Tulloch Rule'
Many recent impacts to wetlands
have stemmed from an incorrect inter-
pretation by some in the regulated com-
munity of the District of Columbia Cir-
cuit Court of Appeals' (D.C. Circuit)
June 1998 decision in National Mining
Association v. Army Corps of Engi-
neers, 145 F.3d 1339 (D.C. Cir. 1998)(
"NMA"). In NMA, the D.C. Circuit af-
firmed a lower court decision invalidat-
ing and setting aside the so-called
"Tulloch" rule.
In 1993, the EPA and the Corps
published regulations commonly re-
ferred to as the "Tulloch" rule. Under
the "Tulloch" rule, EPA and the Corps
changed the definition of "discharge of
dredged material" to include as regu-
lated discharges any redeposit of
dredged material, unless a permittee
could demonstrate that the activity
would not destroy or degrade waters
of the United States. The "Tulloch" rule
was promulgated to appropriately regu-
late discharges associated with exca-
vation activities that destroy or degrade
waters of the United States.
The D.C. Circuit found that EPA
and the Corps, by asserting jurisdiction
over "any" redeposit of dredged mate-
rial, including incidental fallback, had
exceeded their statutory authority un-
der the CWA. (The Court described "in-
cidental fallback" as returning dredged
material to virtually the same spot from
which it came). The decision did not,
however, hold that EPA and the Corps
were precluded from regulating all re-
deposits of dredged material. Rather, the
D.C. Circuit acknowledged that some
redeposits of dredged material into wa-
ters of the United States constitute a
discharge of dredged material and there-
fore require a Section 404 permit. (See
But we do not hold
that the Corps may
not legally regulate
some forms of redeposit un-
der its Section 404 permit-
ting authority."— District of
Columbia Circuit Court of
Appeals' decision in Na-
tional Mining Association v.
Army Corps of Engineers,
145 F.3d at 1405.
145 F.3d at 1405 ("But we do not hold
that the Corps may not legally regulate
some forms of redeposit under its Sec-
tion 404 permitting authority."); 145
F.3d at 1405, n.6 (recognizing that "a
redeposit could be an addition to [a] new
location and thus a discharge")).
Moreover, the D.C. Circuit in NMA
recognized, and other courts also have
recognized, that redeposits associated
with the following are subject to CWA
jurisdiction:
• Mechanized landclearing;
• Redeposits at various distances
from the point of removal (e.g.,
sidecasting); and
• Removal of dirt and gravel
from a streambed and its subsequent
redeposit in the waterway after segre-
gation of minerals. 145 F.3d at 1407.
SEPTEMBER 1999
See also, Avoyelles Sportsmen's League
v. Marsh, 715 F2d 897 (5th Cir. 1983)
(mechanized landclearing requires Sec-
tion 404 permit); United States v.
M.C.C. of Florida, 772F.2d 1501 (llth
Cir. 1985), vacated on other grounds,
481 U.S. 1034 (1987), readopted in rel-
evant part on remand, 848 F2d 1133
(llth Cir. 1988) (redeposit of river bot-
tom sediments on adjacent sea grass
beds is an "addition"); Rybachek v.
EPA, 904 F.2d 1276 (9th Cir. 1990)
(resuspension of materials by placer
miners as part of gold extraction op-
erations is an "addition of a pollutant"
under the CWA subject to EPA's regu-
latory authority); NMA, 951 F.Supp. at
270 ("Sidecasting, which involves plac-
ing removed soil alongside a ditch, and
sloppy disposal practices involving sig-
nificant discharges into waters, have
always been subject to Section 404").
Federal Government and
States: Protecting
Wetlands Through
Enforcement
Since the NMA decision, the Asso-
ciation of State Wetland Managers,
Inc., has recently expressed to EPA
great concern about mounting losses
of wetlands, most notably in the coastal
plain of the southeast. These losses
have been accelerated by a number of
consultants, developers, and land own-
ers who have incorrectly interpreted the
NMA decision as allowing the ditching
or draining of wetlands, even where
such activities result in discharges to
wetlands or other waters of the United
States and require CWA permit autho-
rization.
Many of the sites adversely affected
are located near shell-fishing waters and
fish nursery grounds. Principal con-
cerns in these areas include increased
sedimentation, higher turbidity levels,
Continued on page 4
__ 3
-------
c/EPA
United States
Environmental Protection Agency
Office of Regulatory Enforcement
2241A
Washington, D.C. 20460
Official Business
Penalty for Private Use $300
Continued from page 3
loss of habitat, loss of flood storage,
damage to critical estuarine nursery
grounds and their associated plant and
animal life, and an overall reduction in
near-shore water quality.
As reflected by EPA's recent ad-
ministrative orders issued to the North
Carolina developers, entities should be
on notice that EPA will take enforce-
ment action for discharges associated
with ditching or draining activities that
violate applicable CWA Section 402 or
Section 404 requirements.
Currently, EPA is investigating a
number of sites where ditching and
draining activities may have violated
federal law. EPA is also considering
appropriate strategies to assist the
Corps and states in enforcement and
restoration efforts. For example, joint
interagency field inspections have been
conducted in North Carolina's south-
ern counties and will continue through-
out the coming months to enforce ap-
plicable state and federal regulations.
Federal and state agencies have com-
mitted to share resources and coordi-
nate enforcement actions to increase
regulatory effectiveness. Landowners
and contractors who conduct unautho-
rized activities in waters of the United
States may be subject to administra-
tive, civil judicial and/or criminal penal-
ties.
In addition to federal action, sev-
eral states, like North Carolina, have
begun to enact new laws or regulations
that regulate all forms of ditching and
groundwater pumping, including con-
struction of ponds in wetlands, ditch-
ing in isolated wetlands, rim-ditching,
maintenance of existing ditches and
ditch expansion.
North Carolina's new Wetlands
Drainage policy, which the state began
enforcing March 1, is not affected by
the NMA decision. Ditching and drain-
ing activities occurring before the ef-
fective date of the new rules may still
be subject to enforcement action if dis-
charges have occurred that violate fed-
eral or other state laws. Other states
are considering similar laws and regu-
lations to address recent ditching and
excavation activities.
Contact Tim Zimmerman, Office of Regu-
latory Enforcement, Water Enforcement
Division,(202)564-4052,Email:
zimmerman.tim@epamaiLepa.gov or Joe
Theis, Office of Regulatory Enforcement, Wa-
ter Enforcement Division, (202)564-4053,
EmaiL-theis.joseph@epamaiLepa.gov.
For information related to enforcement
actions in North Carolina, contact Paul
Schwartz (404) 562-9576 or Adam Sowatzka
(404) 562-9545 in Region IV's Office of Re-
gional Counsel
Useful Websites
Office of Enforcement and
Compliance Assurance:
http://www.epa.gov/oeca
Office of Regulatory Enforcement:
http://www.epa.gov/oeca/ore
EPA's Audit Policy Website: http://
www.epa.gov/oeca/auditpol.htm
Office of Wetlands
http://www.epa.gov/OWOW/wetlands
EPA's Wetlands Information
Hotline:
Website: http://www.epa.gov/OWOW/
wetlands/wetline.html
Phone Calls: 1-800-832-7828. M-F.
excluding Federal Holidays, 9 a.m. to
5:30 p.m. (EST); international callers:
(703) 748-1304 or (703) 704-1305
Callers faxina document reauests:
(703) 703-1308.
E-mail: wetlands-
hotline@epamail.epa.gov
EPA's Year 2000 website:
http://www.epa.gov/year2000
EPA's Y2K Enforcement Policy:
http://www.epa.gov/fedrgstr/EPA-
GENERAL/1999/March/Day-10/
g5958.htm
EPA's Small Business Gateway:
http://www.epa.gov/
SEPTEMBER 1999
' Recycled/Recyclable. Printed with Soy/Canola Ink on paperthat contains at least 30% recycled fiber
------- |