## Facts

- The dispute concerned roughly 2,000 acres of the Great Cedar Swamp in southeastern Massachusetts, a large forested freshwater wetland.
- Beginning in 1972, Cumberland Farms of Connecticut, Inc. leased the tract and began converting wetland to agricultural land.
- Over more than a decade, Cumberland removed timber, bulldozed stumps and roots, leveled soil, installed extensive drainage ditches, straightened watercourses, and built dikes and other drainage works.
- By about 1984, approximately 674 acres of wetlands had been converted to agricultural use, and the hydrology of the swamp was substantially altered, with continued work threatening complete drainage.
- Cumberland conducted dredging and filling activities without obtaining a Clean Water Act § 404 permit from the Army Corps of Engineers.
- After the Corps raised concerns, Cumberland asserted its work was exempt as agricultural activity under Clean Water Act § 404(f)(1).

## Issues

1. Whether the affected areas were jurisdictional wetlands (“waters of the United States”) subject to Clean Water Act § 404.
2. Whether Cumberland’s activities qualified for the § 404(f)(1) exemptions for “normal farming” and “minor drainage.”
3. Whether § 404(f)(2) “recaptured” the activities because they brought the area into a new use and impaired water flow or reduced the reach of waters, thus requiring a permit.
4. Whether Cumberland violated Clean Water Act §§ 301 and 502 by discharging dredged or fill material without a permit, and what remedies were appropriate.

## Decision

- The court held the areas at issue were wetlands within federal jurisdiction under the Clean Water Act and Corps regulations.
- The court held Cumberland’s conduct was not exempt “normal farming” or “minor drainage” under § 404(f)(1).
- The court held § 404(f)(2) applied because the work converted previously undisturbed wetlands to cropland and significantly impaired hydrology, triggering the § 404 permitting requirement.
- The court found Cumberland liable for unpermitted discharges of dredged or fill material (after the 1977 amendments) in violation of the Act.
- The court ordered injunctive relief requiring restoration of the wetlands approximately to their 1977 condition and imposed a substantial civil penalty structured to encourage completion of restoration.

## Legal Principles

- Wetlands meeting hydrology, hydric soils, and wetland-vegetation criteria are “waters of the United States” subject to Clean Water Act § 404 permitting.
- The § 404(f)(1) farming exemption protects routine, ongoing farming operations and limited drainage; it does not cover large-scale clearing, ditching, channelization, and drainage that convert forested wetlands into new agricultural land.
- Under § 404(f)(2), otherwise exempt activities require a permit when they bring an area into a new use and impair flow or circulation of waters or reduce the reach of waters.
- Courts may order restoration to remediate unlawful wetland filling and impose civil penalties to deter noncompliance and incentivize corrective action.

## Conclusion

The court held that Cumberland’s extensive drainage and land-clearing activities converted protected wetlands into new agricultural use, triggering § 404(f)(2) and requiring a permit; because Cumberland proceeded without a permit, the court ordered restoration and assessed civil penalties.


United States v. Cumberland Farms of Conn., Inc., 647 F. Supp. 1166 (D. Mass. 1986)