It is often assumed that federal laws dealing
with wetlands and waterways have little application to dry
washes and streambeds. Nothing could be further from the truth.
Land does not have to be wet to be considered a waterway or
wetland by the federal government; the definitions include
even dry washes and certain vegetated lowlands. They may even
include artificial lakes and the runoff from them.
One of the important laws governing wetlands and waterways
is established by Section 404 of the Clean Water Act, which
is enforced primarily by the Army Corps of Engineers. This
is actually a statute designed to control water pollution,
but its reach extends to many ordinary construction and development
The Corps has stepped up its enforcement of the Section 404
"dredge and fill" permit program. This program requires
people who do development work that affects dry wash beds,
such as road construction or grading and leveling of construction
sites, to obtain a formal permit or to fit into one of the
permit exemptions. Those who have filled or disturbed more
than one acre of wash bed in any single project since about
the end of 1984, when the requirements tightened up, may have
serious exposure for those earlier activities.
404 issues should be included in the due diligence investigation
for real estate purchases, and should be carefully considered
before undertaking any real estate development project. It
is a program that often has been ignored in real estate development
activities, and the Corps has historically not enforced it.
However, the Coprs has hired additional enforcement personnel
and is focusing on high visibility activities such as major
real estate developments.
There are two especially frightening things about the 404
program. First, if illegal filling has occurred, the Corps
can order complete restoration of the property to its former
condition. Second, the Corps is becoming more active in asserting
jurisdiction over artificially created wetlands and other
manmade bodies of water. As absurd as it may seem, the Corps
can claim that even a manmade lake is subject to its permitting
program, so that any dredge and fill activities on such a
lake would require a Corps permit (even on private property).
Federal water pollution laws can apply to the filling or altering
of dry washes, doing site work on lowland vegetated areas,
and altering artificial lakes and streams. The penalties for
violating the laws can be severe, and might include restoring
land that was filled years ago to its original condition.
A thorough investigation should be made before acquiring any
land that may be classified as a waterway or wetland, and
proper permits should be obtained before doing any work on
land that may be considered a waterway or wetland.
Return To Legal