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APPEALS COURT RULES AGAINST DEVELOPER

WASHINGTON -- In a significant environmental ruling, a federal appeals court has revived a wetlands enforcement action against a Maryland developer who violated the Clean Water Act by discharging excavated material into wetlands without a permit.

The United States Court of Appeals for the Fourth Circuit has affirmed the longstanding ability of the Army Corps of Engineers to enforce wetlands protection laws. The unanimous opinion clarifies an earlier decision that many developers interpreted as barring the Corps from regulating developers who dig drainage ditches through wetlands and cast the dirt aside. The appeals court held in its April 7 decision that this common practice, known as "sidecasting," requires a permit from the Corps.

"This important decision reinforces a vital tool for protecting wetlands," said Lois Schiffer, Assistant Attorney General for the Environment and Natural Resources. "It will play a critical role in protecting water quality in the Chesapeake Bay watershed and throughout the mid-Atlantic."

In June 1989, James Deaton purchased a 12-acre parcel containing wetlands in Wicomico County, Md., which he intended to develop into a residential subdivision. Ignoring warnings that construction activities in the wetlands would require a permit from the Corps of Engineers, the developer dug a drainage ditch through the wetlands, piling the excavated dirt on either side of the ditch.

When the Corps later learned of this activity, it ordered the developer to stop work pending the submission of a permit application and to prepare a remediation plan. More than four years later, after no remediation was done, the United States Attorney's Office for the District of Maryland brought an enforcement action for civil penalties and sought an order directing Deaton to restore the wetlands to their pre-existing condition.

The district court dismissed the case in light of a 1997 appellate court decision, United States v. Wilson, which reversed the criminal convictions of a different developer for violating wetlands laws.

The court of appeals reinstated the case against Deaton. Its opinion clarified that the redeposit of excavated material into wetlands is the discharge of a pollutant and therefore requires a permit under the Clean Water Act.

"The Corps is pleased that the Fourth Circuit clearly affirmed the Corps' authority to regulate environmentally destructive ditching and sidecasting," said John Studt, Chief of the Corps' Regulatory Branch.

The court emphasized that wetlands "perform a vital role in maintaining water quality by trapping sediment and toxic and nontoxic pollutants before they reach streams, rivers, or other open bodies of water." When wetlands are drained or filled, these benefits to the environment are lost.

Lynne A. Battaglia, U.S. Attorney for the District of Maryland, said, "The court has recognized the critical role of wetlands in the protection of water quality. I applaud the common-sense endorsement of the efforts of the EPA and the Corps of Engineers to protect the Chesapeake Bay."

The appeals court sent the case back to the district court for further proceedings to determine the remedy and penalty. United States of America v. James S. Deaton et al, 4^th Circuit No. 98-2256.

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