United States v. Cumberland Farms of Connecticut, Inc.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 1

At the inauguration of President Kennedy, Robert Frost read a poem which began:

The land was ours before we were the land’s. She was our land more than a hundred years Before we were her people.

Frost, R., “The Gift Outright,” The Poetry of Robert Frost, Lathem, E. ed., at 348 (1969). In imagery strikingly parallel to the facts of this case, Frost evokes memories of the colonists who, without benefit of bulldozers and earth moving machinery, cleared the land in order to plant. Cutting away the bark, the colonists girdled the trees until they died and could be felled, moving the logs off the land and rendering it fit for agriculture. That done, they ditched the land to improve its drainage.

I. Findings of Fact

Wetland soil is particularly attractive for agriculture since, in any wet or mucky soil, vegetation decomposes less rapidly than in the uplands. Termed “anerobic” to signal a lack of oxygen, this soil is rich in organic nutrients, its peat-like composition being ideally suited for planting. Throughout history farmers sought out this soil to clear and to cultivate. Such clearing has consequences, however, and today such traditional land use poses the single greatest threat to the nation’s wetlands. As a consequence, the Court must now balance two enduring values: serving the needs of the present and safeguarding the dreams of the future.

In fact, it can be said that this case involves a test of what the nation has learned in the last three hundred years. On the one hand, Congress has signaled its desire to preserve our wetlands, an intent now codified in rather sweeping legislation, see 33 U.S.C. ch. 26, § 1251 et seq., and further codified in detailed and extensive regulations administered by the United States Army Corps of Engineers, see 33 C.F.R. ch. 11, § 320 et seq. On the other hand, the Court takes judicial notice that even in this industrial or post-industrial time, this country as breadbasket of na *1169 tions represents the greatest agricultural success story in the history of the world.

The Great Cedar Swamp

This case involves an area of land lying partly in the town of Halifax and partly in the town of Middleborough in southeastern Massachusetts. Consisting of approximately 2,000 acres, the land is now, and has been at all material times, known as the Great Cedar Swamp. From a saddle between two rolling hills to the south flow two brooks which, in 1977, 2 meandered northward encompassing between them the majority of the land known as the Great Cedar Swamp. The stream on the east is known as Raven Brook, and the stream to the west is known as Bartlett Brook. In 1977, the brooks snaked through the Swamp until each emptied into the Winnetuxet River to the north. Then and now, the Winnetuxet empties on the west and southwest into the Taunton River and the Taunton, in turn, empties into the Atlantic ocean. In fact, the Taunton is tidal as far north as the City of Taunton, some five to ten miles away from the Great Cedar Swamp.

In 1972 the area was covered in part by a soil of peat and in part by a soil characterized as muck, either shallow or deep. These soils are classified as “hydric,” i.e. wet soil kept constantly moist by an high water table. Test borings taken in 1985 at various locations in the area confirm that, below the 30 foot contour line, layers of peat and sand or silt rest on a lower layer of clay. A brickyard immediately northwest of the site confirms the presence of clay in the subsoil. Soil borings coupled with expert testimony confirm that a majority of the acreage in question is or was a wetland, although areas within the original 2,000 acre swamp, roughly those above the 30 foot contour, are not now and, indeed, could not ever have been characterized as wetland. Many of these non-wetland heights, however, were at one time surrounded by wetland.

In 1977, the Great Cedar Swamp was a typical fresh water swamp. Portions remain so even today. Scientists term the swamp areas “pollustrian wetland” because they are dominated by sedges, ferns, moss, shrubs, cattails, bullrushes and distinctive varieties of trees. The ground cover of the Great Cedar Swamp included sphagnum moss, boneset, blue vervain, water-cress, smartweed, tear-thumb, swamp aster, bedstraw, reed canary grass, pond lilly, manna grass, broomsedge, bur-reed, pondweed, water weed, common duckweed, greater duckweed, pickerelweed, larger blue flag, arrow-arum, skunk cabbage, rush, beakrush or spike-rush, softstem bull-rush, wood-grass bullrush, inflated sedge, silvery sedge, cattail, and royal fern. These plants grew in and around such shrubs as black alder, poison sumac, swamp azalea, grass-leaved willow, mountain holly, smooth alder, silky dogwood, and sweet gale. Although recognizing that the catalogue above stems from expert studies done in 1985, the Court infers that this flora, indigenous to swamp lands, was found in the area in 1977.

Beyond hosting plants and trees, the swamp and its adjacent damp woodlands support a large variety of bird life. Bird nesting grounds have been noted in this area for at least 35 years. Birds present today include the Ruffed Grouse, Downy and Hairy Woodpeckers, the American Crow, the Blue Jay, and the Black-capped Chickadee. Less extensive, but also present in the area over the past 35 years are the Yeery, the Northern Waterthrush, the Northern Yellowthroat, and the Canada Warbler. The Northern Waterthrush and Canada Warbler are rarely found outside white cedar swamps.

The area also shelters the Red-Tailed hawk which the Court finds to have been present for at least the last 20 years. On several occasions, the Eastern Bluebird has *1170 been found breeding in Red Maples in the swamp. 3

Other animal life is now, and was in 1977, prevalent in the Great Cedar Swamp. Such animal life includes deer, raccoon, skunk, and frogs — evidence of which the Court observed on a view taken on March 17, 1986. The Court also saw a pheasant but, on the totality of the record before it, cannot infer the presence of pheasant in the area beyond the immediate time frame of the view.

On the present record, the Court cannot conclude that, prior to Cumberland’s acquisition, any significant portion of the area was ever utilized for agricultural purposes, although there was a mill in or close to the area at one time. During World War II, the armed forces used a center strip of the swamp for a strafing run. Even recent aerial photographs capture a difference in vegetation growth which still marks the course of the strafing run.

In 1972, Y.S. Hasiotis Incorporated (“Hasiotis”) purchased the land in question. Shortly thereafter, Hasiotis leased the land to a related corporation owned by roughly the same group of shareholders, Cumberland Farms of Connecticut, Incorporated (“Cumberland”). At or about the time of purchase, Cumberland commissioned studies relative to possible use of the site for agricultural purposes. The Court finds that these studies would indicate to a reasonable farmer that, for the area to become productive farmland, the trees would have to be removed from the better portion of the land. Moreover, the level of the swamp would have to be lowered significantly by ditches which could both irrigate the land when dry and drain the land when excess water inundated the soil. These studies would indicate to a reasonable farmer that once cleared and drained, the mucky or peaty soil would be more than adequate for farming. In short, the land was ripe for conversion to agriculture, following methods little changed from colonial times.

Beginning in 1972 and working roughly from north to south, Cumberland endeavored to bring the Great Cedar Swamp into productivity as arable farmland. Sporadic but persistent, Cumberland’s activities derive from its corporate resources and its corporate need. Clearing has occurred on a broad front both on the eastern and western sides of Raven Brook, reaching even to the far side of Bartlett Brook as well. Adjoining Fuller Street, a large field has been cleared, this field marking the approximate southernmost extension of cleared area. By 1977, a finger of cleared land just to the west of Raven Brook had already appeared. Today, areas about the southern tip of land have also been cleared and used as farmland.

By 1977, Cumberland had already installed a significant network of drainage ditches in the northernmost area and had straightened the meandering course of Raven Brook from approximately the midpoint of the property southward to the terminus of a dirt-packed farm road. In 1977 and 1978, the network of ditches on the western side of the property had extended only so far as the cleared land, and Bartlett Brook south of the cleared area still followed its normal meandering course.

From 1977 through 1985, Cumberland continued the process of clearing and ditching. Raven Brook was straightened throughout its entire length and Bartlett Brook, having earlier been straightened only in the portion where the land had been cleared, was straightened to the southern terminous of the property. In 1983, the headwaters of the two streams were joined by a ditch. The western boundary of the swampy portion of the site was ditched in 1983, all this work being performed by bulldozers and backhoes. Two farm roads *1171 running parallel to Bartlett and to Raven Brook were in place by 1985. Over the period 1978 through 1985, Cumberland converted 674.4 acres of wetland or cut-over wetland to agricultural use. Cumberland cut down the trees with power saws, skidding the trunks out of the area in a normal lumbering operation. Cumberland then bulldozed the stumps and root systems in a process called scarification, removing in the process some of the topsoil. Once cleared and leveled, a layer of manure prepared the land for actual planting.

Jurisdiction of the Army Corps of Engineers

At approximately the time that Cumberland Farms acquired the land on which the Great Cedar Swamp exists, the United States enacted various legislation designed to free the waters of the United States from pollution. In 1972, the United States, acting through the United States Army Corps of Engineers, to whom the task of regulation and supervision had been delegated, interpreted that mandate to deal only with the navigable waters of the United States. Manifestly, none of the water within the land here in issue is navigable.

In 1975, however, a United States District Court, sitting in the District of Columbia, held that the Corps of Engineers had too narrowly construed its mandate in light of the statutory language and directed the Corps to expand its regulations to embrace other non-navigable waters that could affect interstate commerce. N.R.D.C., Inc. v. Callaway, 392 F.Supp. 685, 686 (D.D.C.1975). The Corps complied and, in 1975, issued interim regulations which asserted authority under § 404 of the Clean Water Act as it then existed, 33 U.S.C. 1344, as amended through P.L. 92-500, § 2, 86 Stat. 884, over waters not actually navigable. This assertion of control engendered considerable Congressional opposition. The controversy came to a head during Congress’ consideration of the Clean Water Act of 1977, a major piece of legislation aimed at achieving interim improvements within the existing framework of the Act. Much of the controversy focused on a specific exemption for existing agricultural activities. But, as the United States Supreme Court has pointed out, in the end Congress acquiesed in the broad administrative construction adopted by the Corps. United States v. Riverside Bayview Homes, Inc., — U.S. -, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985).

This Court notes that the scope of the Corps’ asserted jurisdiction over wetland was specifically brought to Congress’ attention and Congress rejected measures designed to curb the Corps’ jurisdiction, in large part because of Congressional concern that protection of wetlands would be unduly hampered by a narrowed definition of navigable waters. Id. at — U.S. at -, 106 S.Ct. at 461-65, see also S.Conf. Rep. No. 92-1236, p. 144 (1972) U.S.Code Cong. & Admin.News 1972, pp. 3668; 118 Cong.Rec. 33756-33757 (1972) (statement of Rep. Dingell). Possessed, then, of this broader authority to regulate, the Corps granted certain nationwide permits which exempted some activities from the requirement of obtaining specific permits to dredge or fill specific areas of the waters of the United States. Apparently oblivious both to this regulatory framework and the possibility of exemption under a nationwide permit, Cumberland Farms continued to drain, clear, and fill portions of Great Cedar Swamp.

On March 2, 1983, Ruth Ellen Geoffroy, a member of the Middleborough Conservation Commission, visited the property in response to complaints that the Great Cedar Swamp was being drained. During that visit Geoffroy saw a backhoe working along Bartlett Brook in an area not yet converted to cornfields. John Peck, Cumberland’s Vice President for Operations and superintendent in the area, (“Peck”), informed her that Cumberland had recently constructed a drainage ditch along the perimeter of its property in the wooded area and was in the process of constructing an additional drainage ditch running more or less east and west within the wooded area itself. Geoffroy’s own observations confirmed these admissions and revealed red *1172 maples, recently cut, their stumps not yet moved, as well as disturbance of the mucky earth in the brook by the backhoe. 4

Disturbed by what she had seen, Geoffrey returned on March 10th and March 16th to take additional photographs of the Bartlett and Raven Brook areas and the roadways which Cumberland had run along their banks. Soon thereafter, she complained to the Massachusetts Department of Environmental Quality Engineering and the United States Corps of Engineers. Her complaints were the first indication that the Corps had of alleged violations of the Clean Water Act by Cumberland in the Great Cedar Swamp.

The Corps acted promptly in light of these complaints and, on April 15, 1983, Lieutenant Colonel Arthur N. Rappaport, Deputy Division Engineer of the Corps of Engineers (“Rappaport”), wrote Peck a letter noting that discharges were apparently being made into the waters of the United States. Rappaport pointed out that Cumberland had never sought a permit for such discharges and asserted the jurisdiction of the Corps over the area. The letter expressly stated that Cumberland Farms should not perform any further work within the areas subject to Corps jurisdiction until federal authorization was received. The Corps recommended that exposed stream banks along Bartlett and Raven Brooks be stabilized and requested further, detailed information. On May 4, 1983, Cumberland responded by taking the position that its activities fell within the agricultural exemptions set forth in 33 U.S.C. § 1344(f)(1)(A), (C), and (E) and maintaining that it had not made any discharges into the waters of the United States.

Subsequent to the first notification of a complaint, and at all material times thereafter, Cumberland has in an appropriate and reasonable fashion permitted access to its land for inspection of its activities. On April 3, 1983, Elizabeth Ann Koulaheras, a Senior Marine Fisheries Biologist for the Massachusetts Department of Environmental Quality Engineering, inspected the property and observed an area of cornfield being extended by bulldozing earth into a swamply wetland, destroying in the process the sphagnum moss, swamp azalea, cattails, and other flora that grew there naturally.

On April 5, 1983, Janet Clare O’Neill, a Senior Staff Wetlands Engineer employed by the Corps of Engineers (“O’Neill”), made a general survey of the area. Although she did no detailed study, O’Neill concluded that the area was in fact a fresh water wetland subject to the jurisdiction of the Corps pursuant to the Clean Water Act. This determination was based upon her observation of those forms of plant life which grow only in hydric soil. O’Neill observed also that various brooks had been straightened from their normal meandering course. Some of this work appeared recently completed, while other modifications marked by eroding banks collapsed into the water appeared to have been completed some time in the past.

Without waiting for further Corps’ action, Cumberland made a preemptive strike on June 10,1983, commencing in this Court an action against the Secretary of the Army, the Chief of Engineers, and the Corps of Engineers for declaratory judgment seeking to vindicate its interpretation that its land was not within the jurisdiction of the Corps. Approximately a month later, on July 8, 1983, the Department of Environmental Quality Engineering commenced an action against Cumberland Farms in the Massachusetts Superior Court sitting in the County of Suffolk seeking to prevent what it termed violations of the Massachusetts Wetland Protection Act, see generally Mass. Gen. Laws ch. 131, § 40, and requesting immediate injunctive relief. At the time of the commencement of this action, Cumberland had almost 1,400 acres of land under cultivation and was preparing to cultivate the remaining five hundred *1173 acres. In both the federal and state actions, Cumberland took the position that it was exempt from regulation because the land was in agricultural use. See 33 U.S.C. § 1344(f)(1) and 310 Code of Massachusetts Regulations, § 10.04 (1983).

On September 9, 1983, the Corps moved to dismiss the federal action on the ground that it had not yet determined whether, in fact, it was going to assert jurisdiction over the property. The Corps argued that the suit brought by Cumberland was premature and improvident until such time as the Department of the Army, through its Corps of Engineers, actually asserted jurisdiction, thus establishing a genuine controversy. On the record now before it, the Court finds that move by the Corps of Engineers totally inexplicable in view of the Rappaport letter of April 15, 1983.

Agreeing with the position taken by the Corps, another judge of this court dismissed the federal action on May 25, 1984. In the same time frame, the Massachusetts suit was reported by a justice of the Superi- or Court to the Massachusetts Appeals Court. On October 23, 1984, that court held that the action by the Massachusetts Department of Environmental Quality Engineering was premature because, under the Massachusetts Wetlands Protection Act, such action ought commence with the local community, advancing to the courts only if the litigants were dissatisfied with the determination of the local conservation commission. Department of Environmental Quality Engineering v. Cumberland Farms of Connecticut, Inc., 18 Mass. App.Ct. 672, 469 N.E.2d 1286 (1984).

In sum, this Court finds that a year-and-a-half after the initial report of alleged violations of the Clean Water Act, so far as this record shows, the Corps of Engineers had not yet determined whether it had jurisdiction and no state regulation of the area was in effect. The Court finds that the matter was thereafter brought before the local conservation commissions in both Halifax and Middleborough where each community individually determined that, under Massachusetts law, the entire Great Cedar Swamp was exempt from local regulation under the Massachusetts exclusion for agricultural use.

This matter again came to the attention of the Corps in December, 1984, apparently through a press clipping mentioning the Corps. On December 23, 1984, Lieutenant Colonel Edward D. Hammond, acting for Colonel Carl B. Siple, the Division Engineer, communicated with counsel for Cumberland stating unequivocally that the Corps was asserting jurisdiction over the area in question, pointing out alleged violations of the Clean Water Act, and demanding that eight interim protective measures be undertaken immediately. This unequivocal assertion of jurisdiction and demand for action led to a series of meetings and eventually resulted in the erection of a culvert with sluice gates in the Bartlett Brook. Evidently, because either the culvert was too small or because it was inadequately erected, it did not channel the water through its course, thus rendering the sluice gate useless.

Beyond that, however, Cumberland objected to the interim protective measures because, as events bore out, operational sluice gates would have had the effect of inundating certain areas of Cumberland’s cornfields. Although this was the effect intended by the Corps in order to restore the wetlands, inundation would have reduced Cumberland’s acreage under cultivation. Cumberland therefore balked and officially requested a retroactive permit to validate the ditching and filling in which it had engaged from July 1, 1977 to date. The Corps refused to issue such a permit or even entertain Cumberland’s application until such time as Cumberland implemented the interim protective measures which the Corps desired. The matter at a standstill, Cumberland removed the culvert from Bartlett Brook and left it lying on the side of the brook where it remains to this day.

The View

Pursuant to this action which commenced in June, 1985, the Court took a view of the Cumberland property on March 17, 1986. The view involved an aerial overflight and *1174 circling by helicopter, driving the perimeter and, on at least two occasions, a hike of two or three hundred yards into the interi- or of the Cumberland property. The factual matters which may be inferred from the view all corroborate the facts drawn from the testimonial and documentary record. The Court observed numerous white pine in the area, their growth consonant with a drained and receding wetland. The Court also observed a type of sedge, probably the tussock sedge. Although it was March, a wet time of the year, the level of the swamp appeared to be a good two or three feet, if not more, below the evident root system. Expert testimony confirmed this impression. In an upland area close to a swampy section, the Court also noted a plant known as the common mullein or verbascum thapsis which expert testimony established to be an invasive plant, a type which enters an area as the wetland recedes. Earlier, the Court adverted in its findings to inferences drawn about the historic animal population from testimony concerning current fauna. The Court’s view confirmed such evidence even though its survey took little more than two-and-one-half hours and primarily involved the perimeters of the property. The Court concludes that both bird and animal life are abundant in the area.

Further factual findings are set forth, where warranted, in the course of the discussion which follows.

II. Conclusions of Law

As remarked above, this litigation grows out of Cumberland’s desire to farm its wetland more productively and the Army Corps of Engineers’ duty to regulate wetland use under the Clean Water Act, 33 U.S.C. §§ 1251-1376. Unfortunately, these interests are not compatible. 5 The applicable statute seeks to eliminate “the discharge of pollutants into navigable waters,” 33 U.S.C. § 1251(a)(1) (1978), and “to restore and maintain the chemical, physical and biological integrity of the nation’s waters,” 33 U.S.C. § 1251(a) (1982). These purposes are “achieved by compliance with the Act, including compliance with the permit requirements.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 315, 102 S.Ct. 1798, 1804, 72 L.Ed.2d 91 (1982). The permit system is administered by the United States Army Corps of Engineers which regulates the discharge of dredged or fill materials into “navigable waters.” See 33 U.S.C. §§ 1311, 1344 (1982).

The Act defines navigable waters as “waters of the United States” and this definition includes wetlands. 33 C.F.R. § 323.2(a) (1985). A unanimous Supreme Court recently upheld the Corps definition of wetlands:

[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 prevalance of vegetation typically adopted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

33 C.F.R. § 323.2(c) (1985), United States v. Riverside Bayview Homes, Inc., — U.S. -, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (construing the 1977 definition, the Court noted that the 1982 definition is “substantially identical.”) Id. 106 S.Ct. at 458. Addressing itself directly to § 404, the United States District Court for the District of Columbia interpreted the term “navigable waters” to “assert ... federal jurisdiction over the nation’s waters to the maximum extent permissible under the Commerce Clause of the Constitution” and refused to limit the term to “the traditional tests of navigability.” N.R.D.C., Inc. v. Callaway, 392 F.Supp. 685, 686 (D.D.C.1975). In keeping with this breadth, the Supreme Court recently held that “navigable waters” includes water areas “adjacent to” navigable water. United States v. Riverside Bayview Homes, Inc., — U.S. -, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985).

As relevant to the instant matter, the statute regulates the discharge into wet *1175 lands of pollutants, a term which includes “dredged soil ... rock, sand [and] cellar dirt.” 33 U.S.C. § 1362(6) (1978). Federal regulation is achieved through a permit system, a process which is “[t]he cornerstone of the ... scheme for cleaning up the nation’s waters ...,” United States Steel Corp. v. Train, 556 F.2d 822, 829 (7th Cir.1977), as cited in United States v. Huebner, 752 F.2d 1235, 1239 (7th Cir.1985). Apparently, however, Congress sought to calm fear that the decision in N.R.D.C., Inc. v. Callaway would result in an unlimited expansion of the Corps’ jurisdiction by providing for the specific exclusion of certain activities from regulation by permit. Accordingly, the statute now excludes or exempts certain activities as follows:

(f) Non-prohibited discharge of dredged or fill material

(1) Except ... the discharge of dredged or fill material

(A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;

(C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;

(E) for the purpose of construction or maintenance of farm roads or forest roads ... where such roads are constructed and maintained, in accordance with best management practices to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized.

is not prohibited by or otherwise subject to regulation under this section____

33 U.S.C. § 1344(f)(1), added December 27, 1977, Pub.L. 95-217, § 67(b), 91 Stat. 1600. To apply these standards, Cumberland's conduct must be analyzed by a contextual review of its “total activities.” See Avoyelles Sportsmens’ League, Inc. v. Marsh, 715 F.2d 897, 926 (5th Cir.1983). The characterization of Cumberland’s current farming turns on an analysis of whether such activities are “established and continuing.” Id. at 925. At least in passing, Cumberland argued that its agricultural use has historical antecedents that bring the site under the exemption as “established and continuing” farming activity. This argument fails for several reasons.

First, this Court has found no persuasive evidence that any portion of this site was farm land prior to Cumberland’s acquisition and, however compelling the evidence of Cumberland’s purchase of the site for agriculture and its actually farming a portion of the site prior to the effective date of federal regulation, the history of a site is not dispositive of the legal issues facing the Court. United States v. Ciampetti, 20 E.R.C. 1926, 1933 (D.N.J.1984) (“[Although the court is ... fascinated by the history of the site ... for purposes of the present controversy that history is of purely scientific value and is not dispositive of the legal issues before the court”). Second, the Fifth, Seventh, and Ninth Circuits have construed the Section 1344(f)(1) exemptions narrowly. See United States v. Akers, 785 F.2d 814, 819, 823 (9th Cir.1986); United States v. Huebner, 752 F.2d 1235, 1240-41 (7th Cir.), cert. denied, — U.S. -, 106 S.Ct. 62, 88 L.Ed.2d 50 (1985); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 925 n. 44 (5th Cir.1983).

This narrow construction recognizes the statute’s legislative history. Senator Edmund Muskie sponsored the legislation and his remarks are to be given substantial weight. See United States v. Akers, at 819, citing Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976); Environmental Fund, Inc. v. Cos *1176 tle, 636 F.2d 1229, 1243 n. 48 (D.C.Cir.1980). Senator Muskie explained:

New subsection 404(f) provides that Federal permits will not be required for those narrowly defined activities that cause little or no adverse effects either individually or cumulatively. While it is understood that some of these activities may necessarily result in incidental filling and minor harm to aquatic resources, the exemptions do not apply to discharges that convert extensive areas of water into dry land or impede circulation or reduce the reach or size of the water body.

3 Leg.Hist. 474 (1977). 6

Moreover, even if Cumberland could establish that it is exempt from the permit requirements under § 1344(f)(1), it must also demonstrate that its activities avoid “recapture” under the provisions of 33 U.S.C. § 1344(f)(2). See United States v. Akers, 22 E.R.C. 1238, 1243 (E.D.Cal.1985), aff'd 785 F.2d 814 (9th Cir.1986). Section (f)(2), the “recapture provision,” seizes upon certain activities which on their face appear exempt in order to bring them back under the statute. See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d at 926 (5th Cir.1983). As a result, in order to be exempt from regulation, Cumberland’s discharge must not only fall within (f)(1), but also must escape recapture by (f)(2).

In relevant part, § 1344(f)(2), added Dec. 27, 1977, Pub.L. 95-217, § 67(b), 91 Stat. 1600 provides:

Any discharge of dredged or fill material into 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.

Many courts have found those activities which extensively change a wetland’s hydrologic regime are subject to the requirement that a Corps permit be obtained before proceeding. United States v. Akers, 785 F.2d 814, 822 (9th Cir.1986); United States v. Huebner, 752 F.2d 1235 (7th Cir.), cert. denied, — U.S. -, 106 S.Ct. 62, 88 L.Ed.2d 50 (1985); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983). As the manifest intent of Congress was to prevent the conversion of wetlands to dry lands, “the substantiality of the impact on the wetland must be considered in evaluating the reach of section (f)(2).” United States v. Akers, at 822. Reading the exemptions of § 1344(f)(1) narrowly and the recapture provision broadly, United States v. Akers, 22 E.R.C. 1238, 1243 (E.D.Cal.1985), aff'd 785 F.2d 814 (9th Cir. March 26, 1986), the Court holds that subsequent to July 1, 1977, Cumberland converted a wetland hydrologic regime and that such modifications required a permit.

In fact, Cumberland straightened and channelized both Raven and Bartlett Brooks, effectively draining the land. This project cannot be described as “minor,” either individually or in a contextual analysis of Cumberland’s “total activities.” Rather, Cumberland’s activities involve precisely what is prohibited: the wholesale modification of a major aquatic system having an adverse effect, both individually and cumulatively. The statute prohibits Cumberland’s actions because their demonstrable effect is to convert extensive areas of water into dry land, impede water circulation, and reduce the reach and size of the water body.

Cumberland has altered the hydrologic cycles once operative in the Great Cedar Swamp to the extent that, unchecked, Cum *1177 berland’s development would have the effect of draining it completely. The Court rules the Cumberland property to be wetlands under the Corps’ definition and further rules that no applicable statutory exemption applies. Accordingly, subsequent to July 1, 1977, Cumberland could lawfully engage in dredge and fill activities in those areas of the Great Cedar Swamp not then converted to agriculture only pursuant to a Corps of Engineers’ permit.

This analysis does not dispose of the matter, however, because Cumberland now argues that certain “nationwide” permits excuse it from obtaining a specific or individual permit. 7 See former 33 C.F.R. § 323.4-2(a)(l) (the “headwaters permit”) and current 33 C.F.R. § 330.3(b) (the “unasserted jurisdiction permit”). The first authorizes the discharge of dredged or fill material into water, including wetlands, as long as the discharge takes place above the headwaters of a non-tidal river or stream. The second appears to exempt work undertaken in water bodies over which the District Engineer of the Army Corps of Engineers was not asserting jurisdiction at the time the activity occurred.

The “Headwaters” Permit

The nationwide permit for “headwaters” allows discharges of dredged or fill material into “non-tidal rivers, streams and their impoundments including adjacent wetlands that are located above the headwaters.” 47 Fed.Reg. 37146, as codified at 33 C.R.F. 323-4-2(a)(l) (1977), see 33 C.R.F. 330.5 (1985). The Court finds that in March of 1986, the cubic feet per second of water flow might be calculated at various points in the Cumberland Farms subject area by reference to the standard gauge in operation for many years. The standard gauge is located a short distance south of the intersection of the Winnetuxet and Taunton Rivers toward the ocean. While the Taunton River is tidal at least as far north as Taunton, its tidal nature has no effect on the standard gauge which measures a watershed of 260 square miles. The area drained averages a flow rate of 434 cubic feet per second. This works out to a flow rate of 1.7 cubic feet per second per square mile of contributing drainage area.

The Corps used this figure to calculate the cubic feet per second of the flow from more discrete watersheds up the Taunton, the Winnetuxet, and all of its tributaries, including Raven and Bartlett Brooks. Given a standard measure from the state farm gauging station of 1.7 cubic feet per second per square mile of contributing drainage area, it takes 2.9 square miles of drainage area to create a waterflow of five cubic feet per second. Inferentially, any drainage area draining less than 2.9 square miles of drainage area will have a flow of less than five cubic feet per second. Specifically, the Court finds that, in 1986, at the intersection of Raven Brook and the Winnetuxet River an average flow rate of 5.6 cubic feet per second exists over a drainage area of 3.2 square miles. At the point where Bartlett Brook drains into the Winnetuxet River, the water is moving at 8.2 cubic feet per second.

Cumberland Farms points out that it is hardly possible, and indeed the United States concedes as much, that at the point where the streams enter land owned by Cumberland Farms they are moving at a flow rate of five cubic feet per second. The Court concludes that the brooks must move at a rate less than five cubic feet per second where they enter the Cumberland property but finds that upon emerging the brooks are moving faster than the rate (five cubic feet per second) below which the headwaters permit would apply. Cumberland asks the Court to find the point in the *1178 swamp where the brook moves exactly at five cubic feet per second and apply the headwaters nationwide permit above that point, at least until December of 1984 when the regulations were amended to render this exemption inapplicable to Cumberland’s activities. The Court declines to do so because such an attempt to fix a point would be sheer speculation. Moreover, the Court is not persuaded that this process lends itself to solution by a mathematical formula, simply by figuring backwards up through the various drainage areas as discerned from topographical maps. Rather, the Court would need to return to the area and actually calculate the drainage area or obtain further expert evidence thereon. The Court declines to re-open the evidence and notes that Cumberland bears the burden of proving that its activities come within the ambit of a nationwide permit.

In any event, the United States argues that the headwaters permit excludes any action which would destroy or adversely modify a critical habitat of a threatened or endangered species. 33 C.F.R. § 330.-5(b)(3). The evidence before the Court demonstrates that, although the Peregrine Falcon is an endangered species, the Great Cedar Swamp cannot be found to be its critical habitat. See n. 3 above. While the United States falls back on evidence that the Eastern Bluebird is endangered, the Court is not persuaded. The Eastern Bluebird is considered threatened only on a list approved by the Commonwealth of Massachusetts. However, should it prove significant, the Court finds that the swampy area of the Great Cedar Swamp is a critical habitat of the Eastern Bluebird.

These findings as to endangered bird life are thus not sufficient to redeem the case for the United States were it not for the prohibition against erosion and other non-point sourc