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Effects of a Legal Drain Clean-Out on Wetlands and
Waterbirds: A Recent Case History

Section 404 Issues

The Omaha District Office of the U.S. Army Corps of Engineers ordered the SCWRD to halt construction and seek a Section 404 permit, but SCWRD refused, stating that the work was classified as maintenance under Section 404(f)(1), and proceeded with the drain clean-out until completed. After efforts by COE to get the wetlands restored failed, the case was transferred to the U.S. Department of Justice for prosecution. On 4 October 1988, a complaint was filed by the U.S. Department of Justice in Federal District Court in Fargo, North Dakota against the SCWRD alleging that a violation of the Clean Water Act had occurred. On 6 April 1992, Federal Judge Rodney Webb, responding to a motion by the Defendents that the case be dismissed on grounds these wetlands were exempt from CWA, ruled that the United States had jurisdiction over BBM. He noted that "Bruns, Big, and Meszaros Sloughs made up part of a productive and important wetland habitat for a variety of migratory waterfowl and other marshbirds," accepting the Government's argument that the sloughs provided habitat to migratory birds and could be used by interstate travelers for recreational purposes thereby providing a nexus to the Interstate Commerce Clause of the U.S. Constitution (USA vs. SCWRD et al., Civil No. A3-88-175).

In addressing whether the work done on Drain 11 was maintenance or new construction, the Defendents argued that their intent was only to restore the ditch to its "as built" condition. The Court first addressed this issue by ruling that the SCWRD was entitled to clean the drain down to the "as built" grade. This ruling exempted from Section 404 jurisdiction removal of the 1-2 meters of soil and other debris that had accumulated above the drain bed over the 65 years since the drain was built. The Government next argued that a 1990 Government survey showed the grade bed had been deepened below the "as built" dimensions by up to 31 cm at several locations (D. M. Frick, pers. comm.), so it involved new construction, not maintenance, under clause (f)(1)(C), and therefore was subject to Section 404 regulation. The Court rejected the Government's argument, however. In explaining this decision, the Court accepted that the ditch had been deepened beyond the "as built" specifications but stated that the CWA does not require perfection by those seeking to maintain drains.

The Government, failing in its effort to have the project ruled to be new construction, next sought to recapture the project under Section 404 (f)(2) guidelines. The Plaintiffs noted that the (f)(2) provision provides that "Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its primary purpose bringing an area 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." Included among actions resulting in loss of the maintenance exemption are farming where there is no reasonable evidence that farming had ever occurred or where abandoned following ditch construction. The Government supported its argument that the work was recaptured under Section 404 (f)(2) by showing 24 ha of wetlands had been covered with fill as part of the 1984-86 drain work and that the reach of waters had been severely reduced by the drain clean-out. The Plaintiffs pointed to absence of water in the basins except for short periods following high runoff and when flows were blocked by beaver (Castor canadensis Kuhl) dams or other obstructions. Information was presented indicating that with the return of wet conditions in 1993 and 1994, water depth in Kraft Slough had increased to 122 cm by October 1994, in comparison to only 38 and 46 cm in Bruns and Big sloughs, respectively. The Government also noted that the presence of standing water in Bruns and Big sloughs in October 1994 was the result of beavers having constructed a dam across Drain No. 11 downstream from Big Slough, backing water into the two sloughs. The Government presented evidence showing that Bruns Slough had been planted to annual crops for the first time in history in 1988 (M. W. Keller and J. Winters, pers. comm.). However, the Court accepted the Defendent's argument that drought in the late 1980s rather than the drain cleanout had caused the drawdown of BBM and allowed farmers to enter and farm the wetlands. The Court noted that before the Drain No. 11 clean-out, "The reach of the waters also changed periodically in dry times and in wet times, but the outline of the wetlands remain. Thus, the permanent reach did not change." Using wetland area and not taking into account changes in depth and duration of standing water when assessing whether reach of waters had changed, the Court found that the SCWRD had not brought an area of navigable waters into a use to which it was previously not subject nor was the flow of the waters impaired nor was their reach reduced. With changes in the water regimes of BBM during 1986-90 having been ruled to be due to drought rather than drain work, the Government's claim that repairs to Drain No. 11 had been recaptured under Section 404 (f)(2) guidelines was dismissed by the Court.

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