United States v. Cumberland Farms of Connecticut

The Clean Water Act of 1977 (CWA) confirmed that the United States Army Corps of Engineers (corps) (plaintiff) was responsible for regulating wetland use under the CWA. Under CWA § 404, discharge of pollutants into a wetland required a permit from the corps. In 1972, Cumberland Farms of Connecticut, Inc. (Cumberland) (defendant) began transforming Great Cedar Swamp into farmland. The land near Raven Brook and part of Bartlett Brook was cleared. Cumberland installed many drainage ditches and straightened Raven Brook and Bartlett Brook. By 1984, about 674 acres of wetland had been converted to agricultural use. The hydrologic cycles in the area had changed due to Cumberland’s activities. If Cumberland’s development had continued, Great Cedar Swamp would have been drained entirely. Cumberland had proceeded with its actions without a permit. The corps sued Cumberland. Cumberland argued that it had been engaged in establishing and continuing farming activities, actions that were exempt from permitting under 33 U.S.C. § 1344(f)(1). The legislative history of § 1344(f), added to the CWA by amendment in 1977, stated that the exemption in § 1344(f)(1) was intended to ensure that activities causing only minor harm did not require a permit. Section 1344(f)(2), known as the recapture provision, stated that discharge or filling that brought a wetland into a new use or that altered the circulation of natural waters required a permit.