Marcus Conant v. United States, 786 F.2d 1008, 11th Cir. (1986)

786 F.
2d 1008
24 ERC 1343, 16 Envtl. L. Rep. 20,453
Marcus CONANT, Plaintiff-Appellant,

v.
UNITED STATES of America, Defendant-Appellee.
No. 84-3717
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Feb. 7, 1986.
Kenneth W. Sukhia, Asst. U.S. Atty., Tallahassee, Fla., Albert M. Ferlo,
Jr. and David C. Shilton, U.S. Dept. of Justice, Land and Natural
Resources Div., Appellate Section, Washington, D.C., for the U.S.
Appeal from the United States District Court for the Northern District of
Florida.
Before RONEY and HATCHETT, Circuit Judges, and HENDERSON,
Senior Circuit Judge.
PER CURIAM:
In June 1981, the United States Army Corps of Engineers (Corps) issued a
cease and desist order to plaintiff Marcus Conant, ordering him to halt placing
dredge and fill material into the wetlands of the Santa Fe River. Conant filed
this civil suit seeking, among other things, an injunction against enforcement of
the cease and desist order. Following an evidentiary hearing, the district court
entered judgment against Conant. Because the district court did not err in
concluding that Conant was required by the Clean Water Act (Act) to obtain a
permit before discharging dredge or fill materials into navigable waters, that
the wetlands in question were "navigable waters" as defined in the Act and
federal regulations, and that none of the exceptions to the permit requirements
apply in this case, we affirm.
The order in question applies to only one of the nine fish ponds which Conant
began to construct on his land in Alachua County, Florida, in 1980. The Corps
determined that the northern end of the pond lies in a wetlands area of the Santa
Fe River. The vegetation in this area included bald cypress, a species
indigenous to wetlands.
Plaintiff places undue reliance on the phrase "navigable water," in section 404
of the Clean Water Act of 1977, 33 U.S.C.A. Sec. 1344, without examining its
definition in the federal regulations.
The Act itself defines "navigable waters" as "the waters of the United States." "
[T]he Act's definition of 'navigable waters' as 'the waters of the United States'
makes it clear that the term 'navigable' as used in the Act is of limited import."
United States v. Riverside Bayview Homes, Inc., --- U.S. ---, ---, 106 S.Ct. 455,
461, 88 L.Ed.2d 419 (1985). Although wetlands are not specifically mentioned
in the Act itself, under the authority of the Act, the Corps has promulgated
regulations defining "waters of the United States" to include wetlands adjacent
to tributaries to navigable waters. 33 C.F.R. Sec. 323.2(a)(3) (1985).
"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." 33 C.F.R. Sec. 323.2(c) (1985). "Wetlands
generally include swamps, marshes, bogs and similar areas." Id. "Adjacent"
means "bordering, contiguous, or neighboring." 33 C.F.R. Sec. 323.2(d) (1985).
The uncontradicted testimony before the district court indicated that the area in
question was an "adjacent wetland." The district court's finding to this effect
was not clearly erroneous. One witness noted that the wetlands area trapped
undesirable pollutants and sediments before they reached the open areas of the
Santa Fe River. When the United States Supreme Court recently upheld the
broad scope and remedial purposes of the Clean Water Act, the Court
specifically noted that one reason wetlands are protected under the Act is
because they "serve to filter and purify water draining into adjacent bodies of
water." United States v. Riverside Bayview Homes, Inc., --- U.S. at ---, 106
S.Ct. at 463.
The district court properly held that Mr. Conant did not qualify for any of the
exceptions to the permit requirement. To fall within the exemption in 33
U.S.C.A. Sec. 1344(f)(1)(A), the activity "must be part of an established (i.e.,
on-going) farming, silviculture, or ranching operation.... Activities which bring
an area into farming, silviculture, or ranching use are not part of an established
operation." 33 C.F.R. Sec. 323.4(a)(1)(ii) (1985). Because the activity here

involved construction of a fish farming operation, it does not come within this
exemption.
7
Similarly, the reach of the exception in 33 U.S.C.A. Sec. 1344(f)(1)(C) "for the
purpose of construction or maintenance of farm or stock ponds" is limited by
section 1344(f)(2), 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.
Conant's activity here involves a new use which will affect the flow of
circulation within the wetlands. The plain purpose of the statute and regulations
is to allow people to build ponds in connection with a previously established
farming operation.
10
Although plaintiff argues that he is exempt from the requirement of a section

402 permit because the ponds produce less than 100,000 pounds of fish per
year, this does not exempt him from the permit requirements of section 404
since the pond in question is located on wetlands. The district court opinion
adequately points out the different purposes and enforcement procedures of
sections 402 and 404.
11
The Corps' action in this case falls within its broad authority under the Act.
12
AFFIRMED.

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786 F.

Marcus CONANT, Plaintiff-Appellant,

operation." 33 C.F.R. Sec. 323.4(a)(1)(ii) (1985). Because the activity here

Although plaintiff argues that he is exempt from the requirement of a section

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