## Facts

- James S. and Rebecca Deaton owned a 12-acre tract in Wicomico County, Maryland, intended for residential development.
- The property included non-tidal wetlands that the U.S. Army Corps of Engineers treated as “waters of the United States” under the Clean Water Act (CWA).
- Despite being advised a Corps permit was required, the Deatons hired a contractor to excavate a drainage ditch through the wetland area without a CWA § 404 permit.
- During excavation, the contractor placed excavated soil along both sides of the ditch (“sidecasting”), redepositing the material into adjacent wetland areas.
- The Corps issued stop-work orders and the United States filed a civil enforcement action seeking penalties and restoration for unpermitted discharges.

## Issues

1. Whether redepositing excavated wetland material back into the wetland while digging a ditch (“sidecasting”) is an “addition” of a statutory pollutant and therefore a “discharge of a pollutant” requiring a CWA § 404 permit.
2. Whether the court of appeals had jurisdiction to review the Deatons’ cross-appeal challenging earlier district court rulings that the wetlands were within CWA coverage.

## Decision

- The Fourth Circuit reversed the district court’s summary judgment for the Deatons on the discharge question.
- The court held that sidecasting in jurisdictional wetlands constitutes a “discharge of a pollutant” under the CWA.
- The court dismissed the Deatons’ cross-appeal for lack of appellate jurisdiction.
- The case was remanded for further proceedings consistent with the opinion.

## Legal Principles

- CWA § 301 prohibits the discharge of any pollutant into navigable waters absent compliance with the Act, including the § 404 permitting program for discharges of dredged or fill material.
- A “discharge of a pollutant” includes “any addition of any pollutant to navigable waters from any point source”; “pollutant” expressly includes “dredged spoil.”
- Material excavated from a wetland becomes “dredged spoil,” and redepositing that dredged spoil into the wetland during ditching can qualify as an “addition,” even if the material originated within the same wetland.
- Prior circuit precedent limiting certain jurisdictional theories for “waters of the United States” did not foreclose treating sidecasting within jurisdictional wetlands as a regulated discharge.
- Appellate jurisdiction generally requires a final, appealable order; a cross-appeal seeking review of non-final jurisdictional rulings is subject to dismissal absent an applicable exception.

## Conclusion

The Fourth Circuit held that sidecasting excavated wetland material while digging a drainage ditch constitutes an unpermitted “discharge of a pollutant” under the Clean Water Act, reversed summary judgment for the landowners on that issue, dismissed their cross-appeal for lack of appellate jurisdiction, and remanded for further proceedings on liability and remedies.


United States v. Deaton, 209 F.3d 331 (4th Cir. 2000)