By Jones Osborn II

It is often assumed that federal laws dealing with wetlands and waterways have little application in the desert valleys of Arizona. 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. It may even include artificial lakes and the runoff from them.

One of the important laws governing wetlands and waterways is set up 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 activities.

The Corps is stepping up its enforcement of the Section 404 "dredge and fill" permit program in Arizona. 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.

Two examples:

--The developer of a mesquite bosque area was forced to get a Section 404 permit under the theory that the bosque was a wetland, even though it was not wet.

--The Corps notified a major resort that its wash bed development activities extending back into the late 1970s have been illegal under the Section 404 program. The Corps claimed that not only were their grading activities illegal, but they have now created an artificial wetland subject to the Section 404 permit program because discharges from their artificial lakes are allowing cattails to grow in a wash below the lakes. The Corps demanded that they cease all development activities until they get a permit, threatening fines up to $50,000 per day and a 3-year jail sentence.

Section 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.

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. It has done this in other states. 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). The 9th Circuit Court of Appeals has upheld the Corps' jurisdiction over an artificial wetland, and the Supreme Court has denied review.

Conclusion. Federal water pollution laws can apply to the filling or altering of dry desert 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.