Appendix — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

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Text

FOR ARGUMENT

Srpreme

FIRES

i on |

OFFICE OF THE Cif Rx

No. 99-1178

————————————————_—_————_——

IN THE

Supreme Court of the Anited States

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner.

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, ef al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

APPENDIX TO BRIEF OF

THE SERRANO WATER DISTRICT;

THE IMPERIAL IRRIGATION DISTRICT;

THE METROPOLITAN WATER DISTRICT

OF SOUTHERN CALIFORNIA;

THE CENTRAL ARIZONA WATER CONSERVATION DISTRICT;

THE RIVERSIDE COUNTY FLOOD CONTROL AND WATER

CONSERVATION DISTRICT; THE WESTERN COALITION OF

ARID STATES; THE WESTERN GROWERS ASSOCIATION;

TEJON RANCH; AND THE FOUNDATION FOR

ENVIRONMENTAL AND ECONOMIC PROGRESS, INC.

AS AMICI CURIAE IN SUPPORT OF PETITIONER

VIRGINIA S. ALBRECHT

Counsel of Record

JAMES N. CHRISTMAN

STEPHEN J. WENDEROTH

HUNTON & WILLIAMS

1900 K. Street, N.W.

Washington, D.C. 20006-1 109

(202) 955-1500

July 27, 2000 Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20001

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

Exhibit 1:

Exhibit 2:

Exhibit 3:

Exhibit 4:

Exhibit 5:

Exhibit 6:

Exhibit 7:

Exhibit 8:

Exhibit 9:

Exhibit 10:

Exhibit 11:

Exhibit 12:

Exhibit 13:

Exhibit 14:

Exhibit 15:

Exhibit 16:

Exhibit 17:

Exhibit 18:

APPENDIX

TABLE OF CONTENTS

Acrial Photograph of Ephemeral Drainages in Mojave Desert, California.

Ground-Level Photographs of Jurisdictional Ephemeral Drainages in Ventura

County and Palm Springs, California.

Ground-Level Photographs of Jurisdictional Ephemera! Drainages in Desert Springs

and San Clemente, California.

U.S. Army Corps of Engineers Delineation of Site in Orange County, California.

Ground-Level Photographs of Jurisdictional Ephemera! Drainages in Exhibit 4

Aerial Photograph of Ephemera] Drainages at South Mountain, Maricopa County,

Arizona.

Ground-level Photographs of Jurisdictional Ephemera! Drainages in Exhibit 6.

Jack K. Moody, Wash Flow and Rainfall Data for Maricopa County, Arizona (July

2000).

U.S. Army Corps of Engineers, Los Angeles District, Delineation Letter (1998).

Summary of U.S. Army Corps of Engineers Delineation of Ephemeral Drainages in

Arizona (1998).

Tabb Lakes, Lid. v. United States, No. 89-2905, 1989 WL 106990 (4” Cir. Sept. 19,

1989).

EPA, Decision of the General Counsel on Matters of Law Pursuant to 40 C.F.R. §

125.36(m) (Sept. | 8, 1975).

EPA, General Counsel Opin. 77-5, Cooling Ponds as Navigable Waters (Apr. 21,

1977).

U.S. Army Corps of Engineers, Determination of Jurisdiction Under Clean Water

Act (33 U.S.C. 1344) Madrona Marsh, Torrance, California (June 14, 1982)

Memorandum from A. James Bames, Acting General Coussel, EPA, to Frank

Covington, Director Water Management Division, Region 9, EPA (July 5, 1983).

Memorandum from Francis S. Blake, General Counsel, EPA, to Richard E.

Sanderson, Acting Assistant Administrator of External Affairs, EPA (Sept. 12,

1985).

Letter from Richard E. Sanderson, Acting Assistant Administrator of External

Affairs, EPA, to Hon. George J. Mitchell, U.S. Senate (Sept. 17, 1985) (enclosing

Exh. 16).

Memorandum from Robert K. Dawson, Acting Assistant Secretary of the Army

(Civil Works), Dep’t of the Army, to Director of Civil Works, Dep’t of the Army

(Sept. 20, 1985) (enclosing Exh. 16).

Exhibit 19:

Exhibit 20:

Exhibit 21:

Exhibit 22:

Exhibit 23:

Exhibit 24:

Exhibit 25:

Exhibit 26:

Exhibit 27:

Letter from Robert K. Dawson, Acting Assistant Secretary of the Army (Civil

Works), Department of the Army, to Hon. George J. Mitchell, U.S. Senate (Oct. 11,

1985).

Letter from Lynn A. Greenwalt, Vice President, Resources Conservation Dep't,

Nat’! Wildlife Fed’n, to Robert K. Dawson, Acting Assistant Secretary of the Army

(Civil Works), Dep’t of the Army (Oct. 25, 1985).

Memorandum from Patrick J. Kelly, Deputy Director of Civil Works, U.S. Army

Corps of Engineers, Dep’t of the Army, to Subcomm. on Envtl. Pollution, Comm.

on Env’t and Pub. Works, U.S. Senate (Nov. 8, 1985).

Letter from Richard E. Sanderson, Deputy Assistant Administrator for External

Affairs, EPA, to Robert K. Dawson, Acting Assistant Secretary of the Army (Civil

Works), Dep’t of the Army (Nov. 1985).

Public Notice from John F. Adams, Chief, Regulatory Div., Jacksonville Dist., U.S.

Army Corps of Engineers, Dep't of the Army (Mar. 12, 1986).

U.S. Army Corps of Engineers/EPA, Correspondence Related to Draft Guidance

for Clean Water Act Jurisdiction Over Isolated Waters (Oct. 30, 1987).

e Letter from C. G. Goad, Chief, Operations and Readiness Div., U.S. Army

Corps of Engineers, to John Meaghar, Aquatic Resource Div., EPA (May 23,

1986).

e Letter from David G. Davis, Director, Office of Wetlands Protection, EPA, to

John P. Elmore, Chief, Operations and Readiness Div., U.S. Army Corps of

Engineers (Aug. 28, 1987).

Works, U.S. Army Corps of Engineers, to David G. Davis, Director, Office of

Wetlands Protection, EPA (Oct. 30, 1987) (enclosing Draft Guidance for Clean

Water Act Jurisdiction Over Isolated Waters).

Letter from William M. Riley, Chief, Water Resources Assessment Section, EPA,

to Burt Paynter, Chief, Regulatory Branch, Portland Dist., U.S. Army Corps of

Engineers, Dep’t of the Army (Sept. 8, 1989).

EPA/Dep’t of Army, Guidance for Clean Water Act Jurisdiction Over Isolated

Waters in Light of Tabb Lakes v. United States (Jan. 24, 1990).

Letter from R. O. Buck, Assistant Director of Civil Works, Dep’t of the Army, to

Hon. Owen Pickett, U.S. House of Representatives | (Feb. 2, 1994).

XHIBIT

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EXHIBIT 2

Figures | and 2: Jurisdictional Drainage in Ventura County, California: and

Jurisdictionai Desert Wash near Palm Springs, California

————

Figures 3 and 4: Jurisdictional Desert Wash near Desert Springs, California; and

Jurisdictional Drainages within Eroded Canyons between Rolling Hills in San

Clemente, California

EXHIBIT <

EXHIBIT 4

CORPS DELINEATION IN ORANGE COUNTY, CALIFORNIA

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EXHIBIT 5

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SOUTH MOUNTAIN, MARICOPA COUNTY, ARIZONA,

nee PERT ONAS Ss Willi CONSULTANT DELINEATION

SCALE 1°=300'

EXHIBIT 7

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GROUND-LEVEL PHOTOGRAPHS OF 40 FT. WIDE

EPHEMERAL DRAINAGE IN EXHIBIT 6

EXHIBIT 8

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EXHIBIT 9

DEPARTMENT OF THE ARMY

LOS ANGELES DISTRICT, CORPS OF ENGINEERS

ARIZONA-NEVADA AREA OFFICE

3636 NORTH CENTRAL AVENUE. SUITE 760

PHOENIX, ARIZONA 85012-1936

REPLY TO

teenie November 1998

Office of the Chief

Regulatory Branch

File Number:

Dear Mr.

Reference is made to your letter of . » in which you imeuired as to the

jurisdictional limits of Section 404 of the Clean Water Act for

The Section 404 jurisdictional limits are indicated by the ordinary high water mark

and/or wetland boundary designated on the enclosed aerial photograph or map. This

jurisdictional determination will remain in effect for five years from the date of this letter

unless an unusual flood event occurs. After this five year period or after an unusual flood

event alters stream conditions, the Corps of Engineers reserves the authority co retain the

original jurisdictional limits or to establish new jurisdictional limits as conditions warrant.

Although your delineation has been completed, we would ask chat on future requests,

in addition to a proposed delineation, you include two ugmarked copies of a recent vintage

aerial photograph. Preferably the aerial photograph scale should be a minimum of 1°:100”

and should accurately depict the current field conditions. The project area boundary

should be marked on the photograph, but the waterways should not be obscured by any

marks. I am enclosing a copy of our "Minimum Requirements for Obtaining a Section +04

Clean Water Act Delineation” for your future reference.

Any discharge of dredged or fill material within the designated junsdictional area

requires a permit from the Corps of Engineers under Section 404 of the Clean Water Act.

The Corps of Engineers emphasizes avoidance of the delineated jurisdictional area. Please

review this delineation and evaluate your proposed activity to ensure that avoidance of the

jurisdictional area is given full consideration in your design. Any work outside the

designated jurisdictional area does not require a Section 404 permut.

Please include a copy of this letter and the corresponding jurisdictional delineation

with any application to the Corps of Engineers for a Section 404 permit.

The receipt of your letter is appreciated. If you have questions, please contact

Sincerely,

Chief, Arizona Section

Regulatory Branch

Enclosure(s)

— = ~ oe ae *

Proyect Name:

Location: .

Project Number. -

Engineer: Date:

TABLE 1

Jurisdictional Waters of the U.S.

Measured Avg Width Length Area Area

Descn L, inches ft ft fr? acres

Sheet | 45 50 900 45,000 1.03

14.3 6 2,860 17,160 0.39

2 4 400 1,600 0.04

3.7 3 740 2.220 0.05

45.8 1S 9.160 137,400 3.15

8 4 1,600 6,400 0.15

4 3 2,800 8,400 0.19

18 3 360 1.080 0.02

7.3 3 1,460 4,380 0.1

8.3 3 1,660 4,980 0.11

3.8 5 760 3,800 0.09

11.5 6 2,300 13,800 0.32

3.7 15 740 11,100 0.25

Sheet 2 8.75 8 1,750 14,000 0.32

8.1 15 1,620 24,300 0.56

7.5 12 1,500 18,000 0.41

6.7 10 1,340 13,400 0.31

5.5 8 1,100 8,800 0.2

3.25 3 650 1,950 0.04

6.5 3 1,300 3,900 0.09

39 3 780 2,340 0.05

11.6 2s 2,320 58,000 1.33

19.4 20 3,880 77,600 1.78

8.4 15 1,680 25.200 0.58

2.9 6 580 3,480 0.08

6.3 4 1,260 5,040 0.12

2.75 3 550 1,650 0.04

19.8 3 3,960 31,680 0.73

0.75 3 150 450 0.01

1.5 12 300 3,600 0.08

0.5 10 100 1,000 0.02

3.3 6 660 3,960 0.09

Sheet 3 2.8 3 560 1,680 0.04

6 8 1,200 9,600 0.22

48 6 960 5,760 0.13

15.5 8 3,100 24,800 0.57

7 4 1,400 5,600 0.13

3.5 10 700 7,000 0.16

11.4 6 2.280 13,680 0.31

8.75 4 1,750 7,000 0.16

17 5 3,400 17,000 0.39

17 3 3,400 10.200 0.23

125s 2.250 __11,290__ 0.26

Total Jurisdictional Waters of the US.:

15.33

EXHIBIT |

885 F.2d 866 (Table)

30 ERC 1510, 20 Envtl. L. Rep. 20,008

Unpublished

Disposition

(Cite as: 885 F.2d 866, 1989 WL 106990 (4th Cir.(Va.)))

NOTICE: THIS IS AN UNPUBLISHED

OPINION.

(The Court's decision is referenced in a “Table of

Decisions Without Reported Opinions" appearing in

the Federal Reporter. Use FI CTA4 Rule 36 for

rules regarding the publication and citation of

unpublished opinions. )

United States Court of Appeals, Fourth Circuit.

TABB LAKES, LTD., a Virginia corporation,

Plaintiff-Appellee,

UNITED STATES of America, Henry E.

Hudson, United States Attorney, Lee M.

Thomas, Administrator, Environmental

Protection Agency, James M. Seif,

Administrator, Environmental Protection

Agency, John O. Marsh, Jr., Secretary

of the Army, Elvin R. Heiberg, Ill, Chief, Army

Corps of Engineers, Charles E.

Williams, North Atlantic Division Engineer; J.J.

Thoms, Norfolk District

Manager, Uefendants-A ppellants.

No. 89-2905.

Argued July 24, 1989.

Decided Sept. 19, 1989.

E.D.Va., 715 F.Supp. 726.

AFFIRMED.

Appeal from the United States District Court for the

Eastern District of Virginia, at Norfolk. John A.

MacKenzie, Senior District Judge. (CA-87-635-

N)).

David Carlisle Shilton (Donald A. Carr, Acting

Assistant Attorney General, Dirk D. Snel, Michael

D. Rowe, Department of Justice, Russel Petit,

Office of Chief Counsel, U.S. Army Corps of

Engineers, Dov Weitman, Office of General

Counsel, U.S. Environmental Protection Agency on

brief) for appellant.

Richard Russell Nageotte (Nageotte & Borinsky,

P.C. on brief) for appellee.

EXHIBIT 11

Page 1

Before DONALD RUSSELL, WIDENER, and

K.K. HALL, Circuit Judges.

PER CURIAM:

**1 This is an action for a declaratory judgment by

a landowner that his property located in York

County, Virginia is not within the coverage of

Section 404 of the Clean Water Act (CWA), 33

U.S.C. § 1251, et seq. The plaintiff moved for

summary judgment on the pleadings and submitted

affidavits in support. The ground of its motion was

that under the Act the defendants had no jurisdiction

over its land. The defendants, on the other hand,

moved for summary judgment on the ground that

jurisdiction under the Act was evident. The district

court, in an excellent opinion, denied the

defendants’ motion for summary judgment and

sustained that of the plaintiff's. The defendants

have appealed.

The CWA is intended to “restore and maintain the

chemical, nhysical, and biological integrity of the

Nation's waters.” In discharge of this

responsibility the Act prohibits the discharge of

pollutants into the Nation's waters. Included in this

responsibility was "an interim goal of water quality

which [would] provide{ ] for the protection and

propagation of fish, shellfish, and wildlife ... by

July 1, 1983." To accomplish the broad purposes

of the Act, it was said to be "essential that discharge

of pollutants be controlled at -the source."

Accordingly, the Act in 33 U.S.C. § 1344 provided

for a permit program for the discharge of dredged or

fill material into “navigable waters" and devolved

the responsibility of developing and administering

such program on the Corps of Engineers. The

statute defined “navigable waters" as “waters of the

United States" without any more _ specific

identification of the term. Initially, the Corps of

Engineers construed the Act as covering only waters

navigable in fact. United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 123.

Responding to complaints from environmentaiists,

the Corps finally in 1983, issued regulations

ing “waters of the United States" in these

words:

(3) All other waters such as intrastate lakes, rivers,

Copr. © West 2000 No Claim to Orig. U.S. Govt. Works

885 F.2d 866 (Table)

Page 2

(Cite as: 885 F.2d 866, 1989 WL 106990, **1 (4th Cir.(Va.)))

prairie potholes, wet meadows, playa lakes, or

natural ponds, the use, degradation or destruction of

which could affect interstate or foreign commerce

including any such waters:

(i) Which are or could be used by interstate or

foreign travelers for recreational or other purposes;

(ii) From which fish or shellfish are or could be

taken and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial

purposes by industries in interstate commerce....

Congress became concerned that there was no

specific provision protecting migratory birdlife.

After considerable discussion between Congressional

leaders and the agency, General Kelly, acting on

behalf of the Department and Corps, issued a letter

in the form of a directive to all officers of the Corps

of Engineers, in which he specified, among others,

this new standard for indicating as sufficient

interstate commerce connection to warrant exercise

of jurisdiction in the Corps over isolated waters and

wetlands. This new identifying standard was:

**2 Waters which are used or could be used as

habitat by other migratory birds which cross state

lines.

The issue posed by this appeal is whether this added

provision is of a character requiring prior notice and

opportunity for comment under 5 U.S.C. § 553

before it becomes valid. The resolution of that

issue, as the parties concede, depends on the

determination whether the Memorandum issued by

General Kelly in behalf of the Secretary and

Commanding General of the Corps qualifies as an

interpretative rule or general policy statement as

under the recognized exception to the requirements

of Section 553 of prior notice and opportunity to

respond. See Section 533(b)(3)(A). The district

that the exception did not apply and that the Kelly

Memorandum represented a new material addition to

the coverage of the Clean Water Act requiring prior

notice and Opportunity to comment. See also Jerri's

Ceramic Arts v “onsumer Product Safety Comm.,

874 F.2d 205 (4m Cir.1989). It accordingly

granted the landowner’. petition for a declaratory

judgment to that effect and entered judgment

accordingly. We affirm on the district court's

Opinion. Tabb Lakes, Lid. v. United States of

America, C/A No. 87-635-N (E.D.Va. Nov. 7,

1988).

AFFIRMED.

K.K. HALL, Circuit Judge, dissenting:

I agree with the majority that the only issue of this

appeal is whether or not the Corps’ new provision

regarding the use or potential use of waters by

migratory birds meets the interpretive rule exception

to 5 U.S.C. § 533(b)(3)(A). Because I believe that

it does, I respectfully dissent.

Section 553 of the Administrative Procedures Act

("APA") creates an exception to the APA's

requirement of notice-and-comment rule-making for

rules which are merely “interpretive.” 5 U.S.C. §

533(b)(3)(A). While the application of this

exception has led to much judicial consternation,

there is general agreement that rules which are

explanatory and "simply state what the

administrative agency thinks the statute means" fit

the exception. Jerri's Ceramic Arts v. Consumer

Products Safety, 874 F.2d 205, 207 (4th Cir. 1989).

Conversely, rules which implement a statute and

create new legal obligations are substantive and must

be promulgated pursuant to the notice-and-comment

procedures of the Act. United Technologies Corp.

v. E.P.A., 821 F.2d 714, 718-20 (D.C.Cir. 1987).

court found the provision in question to be

substantive largely because it had a “significant

effect on public interests." This holding is in error.

The significance of a rule's impact has no place in

the determination of whether it is substantive or

interpretive. See American Postal Workers Union,

AFL-CIO v. U.S. Postal Service, 707 F.2d 548,

560 (D.C.Cir.1983), citing 2 K. Davis,

Administrative Law Treatise, § 7:8 at 39 (2d

Ed.1979). The touchstone of a substantive rule is

its creation of new legal obligations. This the Corps'

migratory bird provision does not do.

**3 The majority's holding to the contrary

notwithstanding, this regulation did not impose new

legal obligations by expanding jurisdiction under the

Clean Water Act ("CWA"). 33 U.S.C. § 1251 et

seq. CWA coverage was set by Congress and

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OU OG de Ne i ww ak

885 F.2d 866 (Table)

Page 3

(Cite as: 885 F.2d 866, 1989 WL 106990, **3 (4th Cir.(Va.)))

extends to all “waters of the United States." 33

U.S.C. § 1362(7). The Corps could not have

expanded on this definition for the simple reason

that Congress intended that the statute be given “the

broadest possible constitutional interpretation

unencumbered by agency determinations which have

been made or may be made for administrative

purposes." S.Conf.Rep. 1236, 92nd Cong., 2d

Sess. 144 (1972); 1 1972 Legislative History at

281, 327. This regulation merely explains the

Corps’ interpretation of what contacts with interstate

commerce are sufficient to bring a given wetland

within the jurisdictional reach of the CWA.

Furthermore, under the CWA, the Corps does not

have the authority to promulgate rules affecting its

jurisdiction. Consequently, even if the Corps wanted

to promulgate a substantive rule on this point, [FN1]

it could not. See Postal Workers, 707 F.2d at 558.

(A rule cannot possibly be substantive unless an

agency has been delegated authority to promulgate

such a rule.)

FN1. As we have previously noted, in deciding

whether a given rule is interpretive, the agency's

imtent should be considered. Jerri's Ceramics, 874

F.2d at 208. Here it is clear that the Corps

intended this regulation to be interpretive. When it

was published in the Federal Register, the Corps

made clear that its purpose was to “clarify” the

definition of “waters of the United States” so as to

“clarify the scope of the 404 program by defining

the terms in accordance with the way the program is

presently being conducted.” 51] Fed.Reg. 41217.

Plainly, the Corps intended the to be nothing

more than an explanation of present practices.

For the above-stated reasons, | conclude that the

migratory bird provision is an interpretive rule that

is exempt from the notice-and-comment procedures

of the APA. Consequently, the Corps properly

relied upon it in determining that it had jurisdiction

over the Tabb Lakes property. Accordingly, |

would reverse the district court on this point and

remand for further proceedings on the merits of the

jurisdiction issue. [FN2] Because the majority fails

to do this, I dissent.

FN2. In this regard, the record shows that Tabb

Lakes’ property is not used by migratory water fowl

such as ducks or geese, but rather, indicates the

presence of migratory robins and finches. On

remand, the district court should determine whether

the use or potential use of the property by these

types of birds provide a sufficient nexus between the

property and interstate commerce to bring it within

CWA jurisdiction. I am doubtful that i does;

however, this ts a close question. It is also a

question that involves issues of fact appropriate for

the district court in the first instance.

END OF DOCUMENT

Copr. © West 2000 No Claim to Orig. U.S. Govt. Works

PR det.

EXHIBIT 12

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

DECISION OF THE GENERAL COUNSEL ON MATTERS OF

LAW PURSUANT TO 40 C.F.R. §125.36(m)

No. 30

In the matter of National Pollutant Discharge Elimination System

permit for City of Ely, Nevada, Docket No. 141-24(w), the Presiding Officer

has certified an issue of law to the General Counsel for decision pursuant

to 40 C.F.R. §125.36(m) (39 F.R. 27078, July 24, 1974). The parties,

having had the opportunity to provide written briefs in support of their

respective positions, present the following issues:

ISSUE OF LAW NO. I

Question Presented

Whether the discharge from the City of Ely, Nevada sewage treatment

plant into Murry Creek constitutes a discharge into “navigable waters"

as that term is defined in §502(7) of the Federal Water Pollution Control

Act.

Answer |

Based upon the facts presented in the stipulation agreed to by EPA's

Regional Office, Region IX, and the City of Ely, 1/ the discharge in

question is not a discharge into "navigable waters."

Discussion

The term “navigable waters" is defined in Section 502(7) of the

Federal Water Pollution Control Act as “waters of the United States,

1/ aA copy of the stipulation is attached as an appendix to chis Decision.

359

including the territorial seas." That term was explained in an earlier

opinion of this office as meaning “that pollution of waters covered by

the bill must be capable of affecting interstate commerce”. EPA,

A Collection of Legal Opinions, Vol. I at 295 (1975). 2/ This basic test

was elaborated somewhat in 40 C.F.R. §125.1(0):

(o) The term “navigable waters" includes:

(1) All navigable waters of the United States;

(2) Tributaries of navigable waters of the

United States;

(3) Interstate waters;

(4) Intrastate lakes, rivers, and streams which

are utilized by interstate travelers for recre-

ational or other purposes;

(5) Intrastate lakes, rivers, and streams from

which fish or shellfish are taken and sold in

interstate commerce; and

2/ See Leslie Salt v. Froehlke, 7 ERC 1311, 1314 (N.D. Cal. 1974):

We conclude that the Congress, enacting

the FWPCA, was exercising its powers under the

commerce clause to combat pollution of the

nation's waters; that water pollution unques-

tionably affects interstate commerce and thac,

therefore, it was a proper exercise of the conm-

merce power to require permits for dredging or

filling which are potential causes of pollu-

tion of waters of the United States... .

Accord, United States v. Holland, 6 ERC 1388, 1392-93 (M.D. Fla. 1975);

of course, the statute does not require proof that "a particular discharg: —

or stream has a discernable [sic] interstate effect." United States v.

Ashland Oil, 6 ERC 1991 (W.D. Ky. 1973) aff'd, 504 F. 2d 1317, 7 ERC 1114

(6th Cir. 1974). The possibility of such an effect is sufficient.

(6) Intrastate lakes, rivers, and streams

which are ucilized for industrial purposes

by interstate commerce.

This definicion is inclusive rather than exclusive. Accordingly, there may

be “waters of the United States" which are not specifically included within

its scope. However, the definition provides a useful starting point.

The relevance facts are as follows: che City of Ely operates a

sewage treatment planc om the Georgetown Ranch, sorth of Ely, Nevada. The

planc discharges into Murry Creek, which is directed into irrigation ditches

immediately downstream from the discharge planc. Under normal conditions,

mo water from the irrigation ditches leaves the Georgetown Ranch, and is

unlikely to do so even during snowmelt or heavy rainfall. There is notching

in the stipulation to indicate that even were any water to flow off of

the Georgetown Ranch property during such an event it would thereafter

enter another body of water. Occasionally, part of Georgetown Ranch is

leased to farmers for cattle grazing, and cattle from Utah have grazed

om the ranch and subsequently been returned to Utah.

None of the tests in 40 C.F.R. §125.1(0) appear to be met dy this

factual situation. The facts indicate that Murry Creek is not navigable

in fact, nor is ic a tributary of any waters, navigable or otherwise. [r

crosses no State lines. The Stipulation does not indicate that fish or

shellfish are present in Murry Creek or if so, that they are caken

from the Creek and sold in interstate commerce. The waters

361

downstream of the discharge point are noc used for any industrial purpose. 2/

Finally, I do not think that cattle from Utah are the sort of “interstate

travelers" the regulation drafters had in mind, even were they (the eattie)

to refresh themselves regularly with draughts of City of Ely sewage

effluenc.

Apart from the regulation, it could be argued that the pasturage of

interstate cattle could affect commerce. While this possibility exiscs,

the potential effecc is remote indeed. More importantly, this argumenc

ignores the character of the irrigation network as a land disposal

system. All che effluent from the planc is contained entirely on the

Georgetown Ranch, which appears to be owned by the City of Ely.4/ If

3/ A mumber of che facts in the stipulation relate to the character and

uses of Murry Creek upstream from the discharge point. These facts are

irrelevance to the legal determination because, except in stagnant water

(which Murry Creek is not), discharges of pollutants do not affect

commerce upstream from the discharge point. Thus our decision here is

confined to the discharge in question and the portion of Murry Creek

downstream of chat discharge. We express no opinion as to the legal.

status of Murry Creek from its origin to its entry onto the Georgetown

Ranch property.

4/ The fact that ownership of land surrounding a body of water is

consolidated in one legal entity is not in itself dispositive of the

issue of whether chat water constitutes “waters of the United States”

within the meaning of Section 502(7). ‘that is significance here is that

the water is contained on the property (i.e., there is no discharge

from the water on the Georgetown Ranch to another stream or lake) and

the absence of any of the uses of che water described in 40 C.F.R.

§125.1(0)(4), (5) or (6).

=i 362

ie te + ety

ee ee oe

the Utah cattle were sufficient to turn this irrigation/land

disposal scheme into navigable waters, then by analogy, if a farzer

allowed fishernen from another State to fish his small farm pond, the

pond would become “navigable waters.” Although EPA should give the

term “navigable waters" its “broadest possible constitutional

interpretation",5/ neither law nor reason supports extension of that

term to cover these facts.

Dated: SEP 18 1975 ., 4 «

Ihe) 2

x j eA

General Counsel \)

3/ Conference Rept. on $.2770, Rept. No. 92-1236, 92d Cong., 24 Sess,

act 144 (1972).

363

EXHIBIT 13

GENERAL COUNSEL OPINION

_ No, 77-5

April 21, 1977

Cooling Ponds as Navigable Waters

Federal Water Pollution Control Act — Cooling ponds as “navigat

waters” — Artificial ponds built for cooling and located on property of

utility are “cooling ponds.” whether or not used for recreational pu

poses — Effluent limitauons guidelines apply oniy to cooling ponc

which are navigable waters: where use of pond is limited to rendeau «

State, then pond is not “navigable waters” and limitations do not appl

— If im the future pond is used by interstate travelers, pollutant

discharged therein would fall under Section $02(12) and therefore wouk

be subject to NPDES permut requirements under Section 402 of the Act

Md A hI ph ng Mn pe 15, 1976 as well as

letter of January 10, 1977 to Mr. Stanley W. Legro, concerning the G

cooling Pond. | sincerely apologize for not having answered your

sooner.

EPA regulations concerning both NPDES permits and event limit

guidelines define “navigable waters” as follows:

The term “navigable waters” includes:

(1) All navigable waters of the United States:

(2) Tributaries of navigable waters of the United States;

(3) Interstate waters;

(4) Intrastate lakes, rivers, and streams which are utilized by in

state travelers for recreation or other purposes;

(5) Intrastate lakes, rivers, and streams from waich fish or shell!

are taken and sold in interstate commerce: and

(6) Intrastate lakes, rivers, and streams which are utilized for indi

trial purposes by industries in interstate commerce.

40 CFR §§125.1(p), 401.11(1). Based upon the information supplied -

your letter it appears that your pond is not now navigable waters.

As EPA's Region V advised you by letter of January 28, 1976, artifici.

ezonds built for cooling and located on the property of the utility constitute a

acceptable process technology for the control of heat Whether the pond |

used for recreation is not relevant to its status as a “cooling pond.” as define

in 40 CFR §423.11 (m), with regard to the thermal effluent limitations an

standards contained in the Steam Electric Power Generating EMluent Lim

itation Guidelines and New Source Performance Standards (40 CFR 423, 35

Fed. Reg. 36186 et seq. Oct. 8, 1974).

369 WATER POLLUTION

Generac Counset Ortnion No. 77-5

Although as a result of Appalachian Power Company v. Train, $48 F.2d

135t (4th Cir. 1976), all of the thermal effluent limitations guidelines for the

steam electric generating plamt category have been remanded to EPA for

further consideration and reprcmulgation. substantial portions of the chemi-

cal guideline limitations are still in effect. Chemical discharges into artificial

_~ bodies whi itute navigable waters must com

It is clear, therefore, that if the pond should be opened for use by

interstate travelers for recreational (or other) purposes the pond would

become navigable waters. Thereafter any introduction of pollutants into the

pond would constitute a “discharge of pollutants” pursuant to Section

$02(12) of the Federal Water Pollution Control Act, which would be subject

to NPDES permit requirements under Section 402 of the Act. The only

pertinent requirements under the effuert limitations guidelines would be

those relating to chemicals. Other limitations might eventually be imposed

under other regulating provisions, such as Sections 303 and 307 of the Act.

Of course, if you limit use of the pond to Indiana residents only, then the

pond would not be covered by our regulatory definition of “navigable

waters.”

It must be again pointed out that any change in the effluent limitation

guidelines, either through furcher court action or on the Agency's initiative,

could possibly alter the classification of the Gibson cooling pond for regu-

latory purposes.

If you feel that any further clarification is necessary or if there are any

questions or comments, please do not hesitate to contact my office.

WATER POLLUTION 370

EXHIBIT 14

DETERMINATION OF JURISDICTION

UNDER CLEAN WATER ACT

(33 U.S.C. 1344)

MADRONA MARSH

Torrance, California

4¢ Tune /9F2-

Description

l. Medrona Maresh is located in the city of Torrance,

California, approximately two and one half miles east of the

Pacific Ocean and 15 miles southwest of the Los Angeles City

Civic Center. The boundaries of the Marsh are Monterey Street

on the rorth, Sepulveda Boulevard on the south, Meple Avenue on

the east, and Madrona Avenue on the west. The Los Angeles

Die rice, Corps of Engineers, has identified nine areas of the

Mer. @8 wetlands on the inclosed map. Area 1 is epproximately

14 acres of wetland; areas 2 through 5 total approximately

l acre; area 6 is approximately 1.2 acres; and areas 7? through

9 comprise approximately 2.7 acres of wetland.

2. Madrona Maresh was, historically, part of the South

Torrance oil field, and oil production has cdntinued to the

present. A large oil pad with four oil pumps is located

adjacent to wetland area No. 1. Several additional pumps are

situated at other locations within the site on upland areas. A

census of birds taken for the City of Torrance from April 1975

to May 1976 indicated # total of 98 bird species of which 28

species were restricted to the wetlands, 47 species used both

wetland and adjacent upland, and 23 species were observed in

the uplend areas only. Wo endangered or threatened bird

species have been reported, but a white-tailed kite (fully

protected) was observed on several occasions during the fall

and winter in both wetland and upland areas. Migratory

waterfowl use the marsh for «a wintering srea a: @ temporary

resting and feeding area during migration. These include

Mallard, Pincteail, Greenwinged Teal, Shoveler, Canvasback, and

Ruddy Duck. Other migratory birds reported in che Marsh

include che Green Heron, Snowy Egret, Lersc Bittern, Whimbrel,

and Yellowlegs.

3. Madrona Mareh ie @ seasonal wetland with direct rainfall

and a drainage area of approximately 200 acres as its sources

of water. At present, most of the water is supplied through a

ditch entering the Marsh at the northern end just south of

Monterey Street. Another smaller drainage ditch enters from

Maple Avenue. The Marsh has no underground water source from

springs and is maintained as a wetland during he wet sesson

due to an impermeable clay soil layer which prevents

percolation and, to a lesser extent, tCranepiretion. The

surface water which collects during the wet season is not

connected with the ground water table, and the marah has no

outlet. As auch, it is an isolated wetland.

History

4, A group known as the Friends of Madrona Marsh has been

active and successful in having several hundred thousand

dollers set aside in the State budget toward acquisition of the

Marsh aS a wildlife refuge. However, the smount budgeted falls

far short of the amount needed to purchase the land. The

Torrance Investment Company has proposed a large development

project, including residential and office development, for the

Mersh and its vicinity.

5. On 27 February 1980 the Los Angeles District Engineer

determined that the epproximately 18.9 acres described above

ere wetlands and are subject to the juriadiction of the Corps

of Engineers under Section 404 of the Clean Water Acc, 33

U.S.C. sec. 1344. On 13 April 1981 a petition for withdrawal

of juriadiction was filed in the Los Angeles District on behalf

of the Pacific Legal Foundation and the Torrance Investment

Company. Under the Memorandus of Understanding between the

Corps of Engineers and the Envirommental Protection Agency, 45

Fed. Reg. 45,018 (2 July 1980), the District Engineer asked the

EPA whether it considered the case to be of "special interest”

so that the EPA would make che determination of jurisdiction.

EPA declined to make the determination.

6. On 14 August 1981 the District Engineer granted the

petition for withdrawal of jurisdiction, concluding that "che

mere presence and usage of the wetlands in Madrona Mareh by

migratory waterfowl is noc sufficient co make chose wetlands

‘part of a chain or connection ta the production, movement,

and/or use of interetate commerce'." Then, on 11 February

"982, in response to a petition from the Friends of Madrona

harsh under the Corps/EPA MOU, Brigadier General Forest T. Gay,

IIL, Deputy Director of Civil Works, US Army Corps of

Engineers, made the following determination:

Based on the review of this matter by our

Office of Chief Counsel, we have determined

that a more adequate opportunity for public

participation should have been made

available before the Los Angeles District

Engineer made his determination on the

subject issue.

ee ee kg a ee ee Oe ae

ee walle et od ae TY Rls RE TS OT ee ky Ne A ee 8 or Re ae

Therefore, we are requesting our South

Pacific Division Engineer to provide such an

Opportunicy, following which he will

independently evaluate che supplemented

record before formulating his determination

on the issue.

7. Ac my direction, che Los Angeles District Engineer issued

a new public notice on 26 March 1982 and received 50 letters

and cards in response. I have carefully reviewed chese

comments as well as the existing administretive record. The

following ia my independenc evalustion and determination

pursuant to the Deputy Director's request.

Issue: Jurisdiction

8. Section 404(a) of the Clean Water Act, 33 U.S.C.

eec. 1344(a), requires a permit from the US Army Corps of

Engineers for the discharge of dredged or fill material into

the navigable waters. "Navigable waters" are defined in

sec. $02(7) of the Act, 33 U.S.C. sec. 1362(7), as “the waters

cf the United States, including the territorial seas." The

term "waters of the United States" is administratively defined

in 33 C.F.R. sec. 323.2(a) to include four specific types of

waterbodies, plus a fifth, general category:

(5) All other waters of the United States

not identified in paragraphs (1)-(4) above,

such as isolated wetlands and lakes,

intermittent streams, preirie potholes, and

other watere that are not part of a tributary

system Co interstate waters or to navigable

waters of the United States, the degradation

or destruction of which could affect

interatate commerce [emphasis added).

9. The same Army regulation elaborates on the preceding

definition in a footnote:

In defining the jurisdiction of the FWPCA as

the “waters of the United States," Congress,

in the legislative history to the Act,

epecified that the term "be given the

broadest constitutional incerprectation

unencumbered by agency determinations which

would have been made or may be made for

administrative purposes." The waters listed

in paragraphs (4)(1)-(4) fall within this

mandate as diacharges into those waterbodies

Ray seriously affect water quality,

navigation, and other Federal interests;

however, it is also recognized that che

Federal government would have the right to

regulate the waters of the Uniced States

identified in paragraph (a)(5) under chis

broad Congressional mandate co fulfill che

objective of che Act: “to restore and

maintain che chemical, physical, and ;

biological integrity of the Nation's waters"

(Section 101(a)). Paragraph (a)(5)

incorporates all other waters of the United

States that could be regulated under the

Federal government's Constitutional powers to

regulate and protect interstate commerce,

including those for which the connection to

interstate commerce may not be readily

obvious or where the location or size of the

waterbody generally may not require

regulation through individusl or general

permits to achieve the objective of the Act.

10. The notion chat che term "navigable waters" should be

given the broadest possible constitutional interpretation comes

directly from the legislative history, Conference Reporc, S.

Rep. No. 1236, 924 Cong., 2d Seas. 146, reprinted in [1972]

U.S. Code Cong. & Admin. News, p. 3822, and hae been adopted by

the courts in several cases, including Natura) Resources

Defense Council, Inc., v- Callaway, 392 F.~ Supp. 685, 686

(D. D.C. 1975); United States v. Byrd, 609 F.2d 1204, 1209 (7th

Cir. 1979); Jentgen v. United States, 657 F.2d 1230, 1211 (Ce.

Cl. 1981); United States vy. Holland, 373 F. Supp. 665, 671

(M.D. Fla. 1974); United States v. Ashland Oil &

Transportation Co., 4 F.2d 1317 (6th Cir. 1974).

Ll. It is well-established, chen, chat the limits of

jurisdiction under the Clean Water Act ere as broad as che

limite of the power of Congress under the interstate commerce

clause of the Constitution, art. 1, sec. &, cl. 3. The

commerce clause has come to mean that Congress may regulete

activiti 1 which affect interstate commerce. Percy vs. United

States, 402 U.S. 146 _s United States v. Wrightwood Dsir

Cow, 315 U.S. 110 (1942). In Wickard v. Fillburn, 317 U.S. 111

(1942), the Supreme Court staced:

{E]ven if eppellee'’s activity be local and

though it may not be regarded as commerce, it

may etill, whatever its nature, be reached by

Congress if ic exerts a substantial economic

effect on interstate commerce and this

irrespective of whether such effect is what

might at some earlier time have been defined

as ‘direcec’ or ‘indirect. 317 U.S. at 125.

eth, Edens ee Wer me

Furthermore, in a recent case involving a challenge to the

Federel Surface Mining Control and Reclamation Act, the Supreme

Court has stated:

{E]ven activity that is purely intrastate in

character may be regulated by Congress, where

the activity, combined with like conduct by

others similarly situated, affecta commerce

among the States or with foreign nations.

Hodel v. Virginia Surface Mining and

Reclamation Asen., 101 $. Ce. 2352 (1981).

12. The issue co be determined at Madrona Marsh, then, is

whether the degradation or destruction of its approximately

18.9 acres of wetlands would exert a substantial effect on

interstate commerce.

Discussion: Jurdisdiction

13. The first effort by Congress to protect migratory birds,

under the Migratory Bird Act of 1913 (37 Stat. 847), was

invalidated by the courts. United States v. Shauver, 214 F.

154 (E.D. Ark. 1914); Uniced Stetes v. M'Cullaugh, 221 F. 288

(D. Kan. 1915). When these cases were decided, the prevailing

rule of law was chat wildlife, including migratory birds, is

the property of the various states. Geer v. Connecticut, 161

U.S. 519 (1896). However, Geer was overruled in Hughes v.

Okishomsa, 441 U.S. 322 (1979), where the Supreme Court held

that wild animels (minnows) should be treated Like other

commodities when they are shipped in commerce.

14. Hughes was presaged by «a line of appeals court cases

interpreting the Migratory Bird Treaty Act of 1918. 16 U.6&.C.

sece. 703-711. Provisions of that Act related to when and how

migratory birds may be taken, killed, or possessed were passed

by Congress under its treaty making power, so they do not

necessarily represent an exercise of the commerce power.

“istours v. Nolleand, 252 U.S. 416 (1920). However, section 4

of the Act, U.5.C. sec. 705, makes it unlawful to ship in

interstate commerce any bird taken contrary to the laws of the

state or province (of Canadas) in which it was taken. Thiae

provision was upheld as a valid exercise of Congress’ power

under the interstate commerce clause in Bogle v. White, 61 F.2d

930 (Sth Cir. 1932). :

; ortly thereafter, regulations under the Act which

eto pi che placing of corn near hunting biinds before the

season opens in order to lure migratory birds near ti’ 80

that they may be shot, were upheld in Cochrane v-» Unite ,

States, 92 F.2d 623 (7ch Cir. 1937), cert. denied, 303 U.S. 63

(1938), and Cerritos Gun Club v. Hall, 96 F.2d 620 (Sch Cir.

1938). These cases specifically mentioned the commerce power

as a basis for the baiting regulations. Bailey v- Rolland, 126

F.2¢ 317 (4th Cir. 1942), also upheld these regulations under

the commerce power, emphasizing the cheracter of hunting as

interstate commerce.

16. <A more recent case indicates that polluting even « small

(10 acres) pond may be a violation of the Migratory Bird Treaty

Act. In Uniced States v. FMC Corporation, 572 F.2d 902 (2d

_ Cir. 1978), che Corporation wae convicted and fined for

- gelesasing a toxic chemical into its holding pond, thereby

killing a number of migratory waterfowl. However, the

conviction was based on section 2 of the Act (16 U.S.C.

sec. 703), which prohibits the killing of migratory or

insectivorous birds protected by che Treaty, and noc on

section 4 (16 U.S.C. sec. 705), which prohibits interstate

shipmenc of any birds killed contrary to scace law.

Consequently, the case is » treaty power case and of little

help in determining the limits of the commerce clause.

17. Another statute in which Congress movéd to protect

wildlife from acte which, et first blush, would appear to have

only local effects, is the Airborne Hunting Act of 1971, 16

U.S.C. sec. 742 jel. In United States v. Heleley, 615 F.2d 764

(Sth Cir. 1979), the defendants were charged with shooting a

coyote from an aircrafe in violation of the Act. The courte

found the Ace to be a valid exercise of the commerce power, but

traced the authority to the Federel power to regulate airspace,

which is "... as complete and as valid as the Federal power, to

the extent it rests upon the commerce clause, to regulate

navigable waters." 615 F.2d at 786. “In passing the Airborne

Hunting Act," the court said, "Congress acted with an express

‘purpose to regulate for the safety of the national air space.

18. The Federal power over airspace is all that ie necessary

to sustain the Airborne Hunting Act, eccording to the Helsley

courte, but' it went further and commented in dictum: .

Even if we should find it appropriate to

ascribe a dominant purpose to the statute and

should further conclude that this purpose was

to regulate game management (and we neither

assert chat authority here nor make

eS ere oe

the finding), nevertheless, congressional

regulation is not thwarted by arguments that

the incidental connection between commerce

and che regulation is used merely as an

expedienc to justify the law. The power co

regulate commerce is plenary, Gibbons v.

Ogden, 22 U.S. (9 Whesat.) 1, 6 L.Ed. 23

1824), and once the power exists it is for

Congress, not the courts, to choose the ends

for which its exercise is appropriate. 615

P.2d at 787.

This suggeste chat Congress msy regulate the use of the

channels of interstate commerce in such a way a3 to manage and

Protect migratory birds, but it does not help in defining the

geographical Limits of those channels. Furthermore, Congress

did not, in the Clean Water Act, explicicly attempt to manage

Or protect migratory birds. Rather, ice stated purpose was "to

restore end maintain the chemical, physical, and biological

integrity of the Nation's waters." 33 U.S.C. bec. 1251.

Findings: Jurisdiction

19. Besides the use of Madrone Marsh by migratory vaterfowl

for a wintering area and as a temporary reating and feeding

area during migration, two other possible connections to

interstate commerce have been reised in re ponse to the

District Engineer's public notice. First, there are active oil

wells in and near the Marsh area. However, there is no

evidence that destruction or degradation of the wetlands would

have aay significant effect on the operation of these vells.

Second, a number of people have commented thet interatate

travellers frequently visit, etudy, and enjoy the Marsh. There

18 no evidence, though, that any of chese travellera would

alter their interscate travel were the Marsh destroyed or

degraded. Ic seems clear from the public comments that

visiting the Marsh is a secondary or even incidental purpose of

the visitore' interacate travel. This is quite different from

the large-scale, regional, water-related recreation activities

which take place at the Indiana lake at iseue in United Scates

vs Byrd, above. I find that neither of these two possible

connections to interetate commerce is sufficient to support

Corps of Engineers jurisdiction under che Clean Water Act.

20. Thus, the pivotal isaue for determining Corps of Engineers

jurisdiction at Madrona Marsh is whether the destruction or

degradation of the Marsh as a wintering area for migratory

waterfowl and as a temporary resting and feeding area during

their migration would have a substantial effect on interstate

commerce.

21. A number of the interstate commerce cases discussed above

involve hunting as the commercial activity. For example,

Cerritos Gun Club v. Hall, above, involved a challenge to ,

Federal regulations by hunters, who purchase a great deal o

amaunition and equipment and who frequently travel in

interstate commerce themselves in the pursuit of their sport.

The destruction or degradation of the approximately 18.9 acres

of'wetlend in the Madrona Marsh would certainly displace most

or atl of the game birds which winter or rest and feed ect

It may ‘even reduce the total populations of these gane ppveree

very alightly. However, there is no evidence thet any ee

tekes places at Madrona Marsh, and I find that the impact 0

the Mersh on hunting regionally or nationally is insufficient

to support Corps of Engineers jurisdiction under the Clean

Water Act.

22. Other Clean Water Act cases have supported jurisdiction on

the basis of the vital role which many pinta ens ae in the

Food chain, and their consequent impact-on interstate

commerce. Por example, in Zabel v. Tabb, 430 F.2d 199, 203-4

(Sth Cir. 1970), the court held that "the destruction of fish

and wildlife in our estuarine waters does have a substantial,

and in some areas a devastating, effect on interatate commerce

oes Gredge and fill projects are activities which may tend to

4eatroy the ecological balance and thereby affect commerce

substantially." Yer, Medrons Maresh is very different from the

Florida Gulf estuary at issue in Zabel v. Tabb. It does not

serve the importante functions of a nursery for commercial

fisheries, en enhancer of water quality, or a storm buffer that

coastal wetlands serve. While the degradation or destruction

of Madrona Mareh would clearly be « loss to the surrounding

area im many ways including ecologically, I find that, due to

the small size and isolated character of the wetlands located

there, such a loss would not have a substantial effect on

interstate commerce.

Issue: Public Participation

23. The proposed development of the Madrona Mareh area has

been a very controversial one in the city of Torrance and the

surrounding area. Of che 50 comments received in response to

the Districe Engineer's 26 March 1982 public notice, five

implicitly or explicitly requested s public hearing on the

fesue. Also, the Deputy Director of Civil Works directed «

more adequate opportunity for public participation.

a lang ee Taal Al

Discussion: ublic Participation

24. Wormally, jurisdiction is « legal determination which does

not involve public participation act the administrative level.

It ie presumed that Congress involved the public before it

defined its jurisdiction in a stetuce. However, in this case,

applying the statutory definition requires a finding of facts

by the administrator, and it is appropriate co solicit

information from the public in determining actual effects on

interstate commerce. For this reason, the public notice

solicited public comments.

25. The Corps of Engineers regulation which sete out « policy

on public hearings applies, by its terms, only to the

consideration of a permit application, not to « determination

of jurisdiction. However, I have applied thet policy to thie

issue as well. The policy states: “Requests for a public

hearing under this péragraph shall be granted, unless the

Dietrict Engineer determines thet the isgeves raised are

ineubstential or there is otherwise no valid interest to be

served by a hearing.” 33 C.F.R. sec. 327.4(b).

Finding: Public Participation

26. The District Engineer has determined that there is no

valid interest to be served by « public hearing on this

determination. The desirabilicy of preserving the mareh as

open space and as an educational ares was repeatedly stressed

ia che written comments and at the public hearing held by the

City of Torrance on the zoning of the srea. But these

indisputably important issues canoot be eddressed by the Corps

of Engineers unless it has jurisdiction over the area. They

are more appropriately addressed by stete and local

governmental agencies, as they have, indeed, been seddressed by

the City in its zoning decision. The facts supporting ay

finding of no substantial effect on interstate commerce are

adequately established in the writcen record, including the

public comments, che Environmental Impact Report for the

proposed development, end the Corpse of Engineers’ own

biological investigations. Therefore, I find that @ public

hearing would serve no valid interest at this time and chat che

Opportunity for public participacion has been adequate. |

-' % & F ree te

| Summary

27. I find chat the US Army Corps of Engineers has no .

jurisdiction over the Madrona Maresh area under section 404 of =

the Clean Water Act because the destruction or degradation of :

the Maresh would not have a substantial effect on interstate

commerce. Furthermore, I find that the opportunity for public

participation in this decision has.been adequate.

)

Division Engineer

‘ ~,

H Cd ili a S “.,

SIGHED | ! “.

14 JUN G8? —_ HOMES JOMSSTONE _ | he

“Date HOMER JOHNSTONE : ! setiten.

Brigadier Cenerel, USA ; } ni x

ss ee hed ’

}

EXHIBIT 15

July 5. 1983

Water Management Division

Region 9

Pat Alberico has referred to this office your request for guid-

in Ash Meadows, Nevada

Frank Covington, Director

RANDUM

SUBJECT: Clean Water Act jurisdiction Over Springs

A. James Barnes

Acting General Counsel

ance on Clean Water Act (CWA) jurisdiction over isolated

acts

springs in Ash Meadows, Nevada. Based on our review of the

appears that CWA jurisdiction exists over the springs in ques-

tion.

background materials you provided and the applicable law, it

MEMO

FROM:

TO:

NE 2

jet at t

RIE

ipedivlnag &

maepeatl! nH } if ,

13} [: leith ts

Hi Hi a ee a

evident fy

Heit afl at

past, water drawn from the springs has been used for agr

ture, largely unsuccessfully due to the high mineral conten

the water, limitations on available water quantity, and

soils. Preferred Equities Corporation, the present owner

significant portion of the water rights for discharges from

springs, intends to use the water for a new urban deve

ment.

Discussion

Clean Water Act jurisdiction extends, in inland waters, to

“waters of the United States” (§ 502(7) of the Act), which

defined in the applicable regulations, 40 C.F.R. § 230.3(s).’

nonnavigable, isolated, intrastate waters, the Ash Meac

springs would fit the definition of waters of the United Ss

only if their:

use, degradation, or destruction... would affect

or could affect interstate or foreign commerce in-

cluding any such waters:

(i) Which are or could be used by interstate or

foreign travelers for recreational or other purposes:

(ii) From which fish or shellfish are or could h-

taken and sold in interstate or foreign comm

or _

(iii) Which are used or could be used for indus-

trial purposes by industries in interstate commerce.

Wetlands adjacent to the springs would have the same juri:

tional status as the springs themselves.

Whether any particular isolated water, such as the

Meadows springs, falls within the regulatory definition wil

course, depend upon the facts of the situatyen. In the pre

case, the record indicates that the springs in question have

tracted a significant number of scientists from out of Stat

study the unusual flora and fauna they support, including

137

;

fit the class of waters of the United States described in

§ 230.3(s)(3)(i), that is, waters the use, destruction, or degrada-

tion of which could affect interstate commerce including such

waters “which are or could be used by interstate or forngn ‘raneiers

for recreational or other purposes.” (Emphasis added.)

held that the use of a 2,500-acre lake by out-of-

State travelers for recreational purposes could serve as the basis

a finding of

‘

to observe and study

unusual collection of species directly dependent on

applicable case law interpreting the Commerce Clause, the ap-

plicable CWA regulations, and the general purpose of the

maintain the chemical, physical, and bio-

the Nation’s waters (§ 101(a)). Since Con-

gress intended that CWA jurisdiction extend to the madmum

* The opuwon does not indicate the number of travelers involved.

13s

extent permissible under the Commerce Clause,* it follows that

there is jurisdiction over the springs in question.*

-£

veil

[

Eng-

neers’ nationwide permit for isolated waters, 33 CFR §3304 The Corps

should be consulted on questions concerning the scope of that permit, and the

appiicabuity of its conditions.

139

EXHIBIT 16

> Hay i ih

i: 3 UNITED STATES ENVIRONMENTAL PROTESTICN ASDC.

\S ti WASHINGTON, OC. 20460

bad ~r*

SEP | 2 (985

enanbaraausdeee.

MEMORANDUM

TO: Richard E. Sanderson

Acting Assistanc Administrator

Office of External Affairs (A~100EA)

FROM: Francis S. Blake —

General Counsel (LE-130

SUBJECT: Clean Water Act Jurisdiction over Isolated Waters

At che section 404 oversight hearings before the Senare

Committee on Environment and Public Works on July 15, 1985,

Senator Mitchell asked that you confer with the Office of

General Counsel concerning a jurisdictional question under

the Clean Wacer Act. Specifically, he asked whether, in

asserting jurisdiction over isolated waters on the basis of

use by migratory birds or endangered species, EPA required

proof that a particular water body was actually used by such

birds or endangered species prior to recognizing jurisdiction

or whether EPA would be satisfied with evidence thar such

water body could be so used.

The jurisdiction of the Clean Water Act extends to “waters

of the United Stares." EPA's regulations define waters of

the United States to include, incer alia:

streams, (including intermittent streams), mudflats,

sandflats, “wetlands,” sloughs, prairie potholes, wert

meadows, playa lakes, or natural ponds the use, degrada-

tion, or destruction of which would affect or could

affect interstate or foreign commerce including any such

waters:

(1) Which are or could be used by foreign or interstate

Cravelers for recreation or other purposes;

(2) From whieh fish or shellfish are or could be taken and

sold in interstate or foreign commerce; or

‘

(3) Which are used or could be used for industrial purposes

by industries in interstate commerce.

= 2

These regulatiors implement the Congressional intent chat

Clean Water Act jurisdiction be asserted to the maximur

extenc permicted under the Commerce Clause. See, e.g-, | Leg.

hist., at 178 and 250-51; Avoyelles Sportsmen 5 League v.

Marsh, 715 F.2d 897 (Sth Cir. ; Leslie Salt Co. v.

Froelke, 578 F.2d 742 (9th Cir. 1978). Therefore, the regula-

tions should be broadly construed, subject of course to tne

limications of the Ccmmerce Clause and che actual language of

the regulations.

The specific definition of waters of the United States in

EPA's regulations has evolved over the years, and ic is noc

necessary to trace here its entire history since passage of the

Act in 1972. However, it is relevant to note that in i979

the agency changed the prior definition, which simply referred

to waters used by, inter alia, industry in interstate commerce,

to add che phrase “waters che use, degradation, or destruction

of which would affect or could affect" commerce.i/ As explained

in the preamble, chis language was intended to broaden the

definition of waters of the United States based on the suscepri-

bility of a stream of use by industries in interstate commerce

(44 Fed. Reg. 32854, June 7, 1979).

{T]he regulations now focus, not on che nature of the

stream's users, but om the characteristics of the scream

itself, and it will no longer be necessary to show actual

industrial use for a stream to fall within the definition.

Id. at 32858.2/

It is now generally accepted that migratory birds and

endangered species may be regulated under the Commerce Clause,

and that this regulation extends to protection of habitat.

See, e.g., Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984);

Hughes v. Oklahoma, 437 U.S. 322 (1979); Bailey v. Holland,

TE F.2d 317 (4th Cir. 1942); Palila v. Hawaii Dep*t of Land

and Natural Resources, 471 F. Supp. 985 (D. Ha. TOSS, aff'd

2d C ir. 1981). The impact on commerce of the

destruction of any one isolated wetland need not itself be

1/ This change was made after an Office of General Counsel

~ opinion interpreted the old definition as not covering

intrastate waters at or below a discharge point where chere

Was no actual use by a downstream industrial user. Decision

of the General Gounsel No. 73 (Dec. 15, 1978).

2/ In addition, the regulation was reworded to make explicic

~ the long-held view chat che waters specifically mentioned

were not an exclusive list of waters of the United States.

e 3 e

significant; Congress has the authority to regulate accivities

wnich cumulatively could have a significant effect even if a

parcicular individual activicy would not. Perez v. United

states, 402 U.S. i46 (1971); Wickard v. Filburn, 317 Uss.

= Ho U.S. v. Earth Sciences, Inc... 599 F.2d 368 (10th

41‘ee .

With this background, I now turn to the specific question

act hand. In simplified terms, the answer is that if the

evidence reasonably shows chac the waters “are used or would

be used" by migratory birds or endangered species, ict ie

covered by EPA's regulation. Of course, as the preamble to

the 1979 regulation points out, the clearest evidence would

be evidence showing actual use in at least a portion of the

stream. In addition, if a particular wacerbody shares the

characteristics of other waters whose use by and value to

migratory birds is well established and those characteristics

make ic likely that the waterbody in queseion will also be

used by migratory birds, it would also seem to fall clearly

within che definition (unless, of course, there is other

information that indicates the particular waterbody would not

in fact be so used).

Endangered species are, almost by definition, rare.

Therefore, in the case of an endangered species, if there is

no evidence of actual use of the waterbody or similar waters

in the area by the species in question, presumably one would

usually assume that the waterbody was not susceptible to use

by such species, notwithstanding che particular characteristics

of the waterbody. Again, a specific determination of juris-

diction would curn on the particular facts.

7 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

F) WASHINGTON. OC. 20460

SEP | 7 \99s OFFICE OF

EXTERNAL AFFains

Honorable George J. Mitchell

United States Senate

Washington, D. C. 20510

Dear Senator Mitchell:

Please find enclosed an EPA Memorandum prepared by our

General Counsel in response to your request for information

regarding the establishment of jurisdiction over isolated

waters on the basis of use by migratory birds or endangered

species. As the memorandum states, if evidence reasonably

shows that the waters “are used or would be used" by migra-

tory birds or endangered species, it is covered by EPA's

regulation. Of course, the c!3arest evidence would be

evidence showing actual use in at least a portion of the

stream. In addition, if a particular waterbody shares the

characteristics of other waters whose use by and value to

migratory birds is well established and those characteristics

make it likely that the waterbody in question will also be

used by migratory birds, it would also seem to fall clearly

within the definition (unless, of course, there is other

information that indicates the particular waterbody’ would not

in fact be so used).

Endangered species are, almost by definition, rare.

Therefore, in the case of an endangered species, if there is

no evidence of actual use of the waterbody or similar waters

in the area by the species in question, presumably one would

usually assume that the waterbody was not susceptible to use

by such species, notwithstanding the particular characteristics

of the waterbody. Again, a specific determination of juris-

diction would turn on the particular facts.

I would add that this has been the consistent interpreta-

tion of the Agency since 1979. I hope this information will

be helpful to you and the other Subcommittee members. If

there is any further information EPA can furnish, please do

not hesitate to contact me.

EXHIBIT 17

1 ccm

OEPARTMENT. OF THE ARMY

OFFICE OF THE ASSISTANT SECRETARY

WASHINGTON, OC 20310-0103

| 20 Sep 1985

Thank you for your continued interest in and support of the

work of this Agency. |

Sincerely, -

/ $ luli —~

: MEMORANDUM FOR THE DIRECTOR OF CIVIL WORK )

Richard E. Sanderson

Acting Assistant Administrator SUBJECT: Guidance to FOA's on Isolated Wetlands

External Affairs

During the recent Senate oversight hearings on

the Section 404 program, questions have been raised:

about the limits of jurisdiction. Specifically,

Senator Mitchell requested specific guidance be

provided to the FOA's on the nexus to interstate

commerce in isolated wetlands.

Enclosure

As a result of these concerns, EPA council

prepared the enclosed memorandum. -I concur with the

position in this memo. Please distribute this to all

FOA'S as soon as possible.

Also, please provide me a copy of your

transmittal to the FOA's so that I can forward it to

the Senate Subcommittee on Environmental Pollution.

Robert K. Dawson

Acting Assistant Secretary of the Army

(Civil Works)

Enclosure

EXHIBIT 19

DEPARTMENT OF THE ARMY

OFFICE OF THE ASSISTANT SECRETARY

WASHINGTON. OC 20310-0103

Honorable George J. Mitchell

United States Senate

Washington, D. C. 20510

Dear Senator Mitchell:

This is in cesponse to your request for a review

by my office of the jurisdictional determination made

by Galveston District on “Pond 12." We do not intend,

and I do not believe you requested us, to perform a

legal or formal review, but rather a general overview

as discussed on September 18, and during previous

oversight hearings. Let me say at the outset, as I

have during the oversight hearings, that this

Administration has not changed, in any way, policy on

determining the limit of Section 404 jurisdiction.

Pond 12 is a 30-acre pond on agricultural land

located approximately 60 miles from the Mexican

border. This is a type of pond which the Galveston

District believes does not and could not support use

by migratory birds, orf endangered species the

alternation or elimination of which could affect

interstate commerce. Purthermore, the District

determined that Pond 12 still could not support such

use when considered cumulatively with potential

impacts on other areas including those sharing its

characteristics. Therefore, the District did not

exert rcegulatory jurisdiction under Section 404. The

Galveston District assures me that they do exert

jurisdiction over many isolated waters that support

use or could support use by migratory birds or

endangered species the alteration or elimination of

which would affect interstate commerce.

This jurisdictional determination is consistent

with our regulations and the September 12, 1985, EPA

legal memorandum. The Corps has been making jurisdic-

tional determinations on isolated wetlands in the same

way since publication of our 1977 regulations. The

"could be used* criterion has been an integral part of

our regulations since 1977 (i.e. “the degradation or

destruction of which could affect interstate

—

commerce”: 33 CFR 323.2(a)(5), 42 Federal Register 1338

page 37144). The corps has traditionally taken a4

ceasonable approach to what constitutes an affect on

interstate commerce. This, I believe, is what

° ndercson ceferred to at the July 15, 1985,

pe Bo hearing, when he said the “rule of ceason

should be applied to interstate commerce calls.

Finally, when Galveston District made the

jurisdictional determination on Pond 12 they were

applying the cumulative impact test noted in EPA's

September 12, 1985, legal memorandum. That is, the

pond is not considered to have the characteristics

of a water the individual or cumulative use

degradation or destruction of which could affect

interstate commerce.

Unfortunately, the Galveston District used

terminology in their letter to the U.S. Fish and

Wildlife Service that described the use by migratory

birds and endangered species as “limited” and not

*“substantial.* In fact, I am informed that the

occurrence of migratory birds and endangered species

was so trivial, that the District did not believe

there was an effect on interstate commerce.

hing has come to my attention indicating any

aseenane of contravention of laws, regulations, =

guidance on this specific jusisdictional

determination. Let me reiterate that this — wr

tion has done absolutely nothing to change, = a

way, the limit of Section 404 jurisdiction o e

Clean Water Act.

Sincerely,

Robert K. Dawson

Acting Assistant Secretary of the Army

(Civil Works)

EXHIBIT 20

NA NATIONAL WILDLIFE FEDERATION

<_ s #4

“ot 1412 Siateenth Street, NW. Washington. OC 200362266 (202) 797-4800

October 25, 1985

+a POs Dee MaA**

| bene De PEo> >>? } 5 talks 4 ee Ae)

Robert K. Dawson

Acting Assistant Secretary of

the Army (Civil Works)

2£570 Pertagon

Washington, DC 20310

Re: Notice of Violation of Section 404, Clean Water Act (Commerce

Clause Jurisdiction)

Dea> Mr. Dawson:

she purpose of this letter is to provide written notice of

the alceged viclation by the Corps of Engineers of Sections 32:/:

anc 404 of the Clean Water Act, as amended, 33 USC 13ll(a) and

344. This notice is provided pursuant to Section $05(a) and (+)

£ the Act, 33 USC 1365(a) and (b).

The Corps has violated Sections 301(a) and 404 by refusing =:

require permits for the discharge of dredged or fill material in

cerzain so-called “isolated” waters. The ostensible ground cite

by the Corps for this refusal is that the discharge activity

Supposedly will not have an effect on interstate or foreign

commerce. In at least one instance the District Engineer,

Galvesz=on District, has refused to assert regulatory authority

ove> an isolated waterbody and adjacent wetlands located in

Willacy County, Texas, and commonly referred to as Pond No. 12,

allegedly because of insufficient jurisdiction under the Commerce

Clause (see enclosed copy of September 4, 1985 letter).

The Corps’ improperly restrictive interpretation of its

constitutional power pursuant to the Clean Water Act is a

violation of the Corps' regulations and of the Act itself. The

Corps’ refusal to regulate destruction of wetlands that are

subject to the Clean Water Act also is a violation of the Corps’

regulations and the Act.

You may consider this letter to constitute notice for each

and every other instance in which the Corps refuses to exercise

Rooter: K. Dawson

Cctober 25, 1985

Page 2

authority over isolated wetlands for the reascrs

its regulatory

1985 letter or for related reasons.

stated in the September 4,

Jerry Jackson is the staff attorney representing the Naticne-.

Wildlife Federation on this matter. He can be reached at (202)

797-6827.

| A a

Resources Conservation Depariren:

Enc.

ec: Lee M. Thomas, Acmin:istrator, USEPA

Dick Whittington, Region VI Administrator, USEPA

Edwin Meese III, U.S. Attorney General

Delta Irrigation District, Edcouch, TX

Alan Allen, Sportsmes's Clurs of Texas, Inc.

EXHIBIT 21

DEPARTMENT OF THE ARMY

U.S. Army Comm of Enqweers

WASNT, TON OC. 703141000

5 Ohocce ae LIM Vv Teo Moy 8

7 ; mT VE fab eeus On aa i c (eu. ae

+ baoecvo.n : .

“SUBJECT: EPA Memorandum on Clean Water) 7

tenn on Clean Water Act Juristiction er Isolate ~~

SEZ DISTRIBUTION - *° é@

1. closed is an EPA legal mencrarnd

un date’ 12 Sentenber

is being forwanied pursuant to « cami tnent mate by tr. Daven to the

Ewirormetal Pollution. . ublic Works, Subcamnittee on

2. This legal menorandun ves scec

Prerare’ by EPA in resnonse to a f

| — interstate cammerce askei by Senator Mitchell Auring a

| ght hearings on the Gection 404 progran. ,

3. The specific question the menorardun

eciresses arose durim the

fe — rat. amy edhe SOS Richard Sarrierson,

~ esked the question after Mr. Sarderaon listed 1) conn

° the fo

—__.-- «88 ~indicators of comections to interstate camerce way Re ny _—

juriatiction in isolated wters and wetlands:

nee “1. Waters fran which fish or shellfish ar

could be taken and sold [in] interstate or

foreign camerce; .°

2 Waters which are or could be wed

interstate or foreign travelers for’

recreational or other purposes;

; ~ 3° -” i ae _ ; we ‘cal ex

7 industrial purposes by ind

cate Com Ld ustr ies +{ in)

_- 4. Waters used as-hebitat by birds protected

__ Migratory Bd eats

5. Waters used as habitat by other migrator

‘bimis which cross State ines; ‘a 7

6. Waters which are habitat for evangeres

species; ard

7. Waters used to irrigate cross sold in

(interstate) commerce."

EXHIBIT 22

™ 4097

EN-CHO-N Bh a /NITED STATES ENVIRONMENTAL PROTECTION aGeucy

SUBJECT: FPA Memorandum on Tlean tater ‘ct Juristiction Wer ten! atet : WZ; MASHINGTON O.C. 22360

taters Sai . , pa

's “ailure to iectirte the

rt Mitchell wes confuse’ bv tr. Smerson's “n

od ~ be used" in points 4, 5, am’ 6 dealim with miaratory hir's eas

~<a q@cdangere’ species. After discussion, Senator Mitchell final)y state, we

"$5 I think # more proper phraseology here would be to insert in ites 4 EXTERNAL 2774185

fir

after the wr! “wter," the same words which eccear in the

pcp hy "waters sich are or could be uses .".. — a a

= a

Mm. Sandermon responies, “I think thet isa legitimate interpretation.

5. I do it, but I wil)

Sf I may, 1 wald lite to qantas vith ay comet betes . Mr. Robert K. Dawson

get back to you for _Eecond. —_ aan, iar - antes et Secretary

Ss eee a : on on the specific point of the Army (Civil Works)

6. the tej. oe py yn = A = languages ‘This is Oepartment of the Arny

p— a —A with our regulations at 33 —_— (3) a, therefore, tr all 0.C. 2031020102

should not be viewed as a change in policy. | i Deaialiaitans

hear Me. Dawon also ayreai to wrk with FPA ant Interior to Qear Bob:

3 eae statement on the connection to interstate ters. Th ¢ i

determinations of Section 404 jurisdiction in isolate’ . ank you for sending me a copy of your October 11, 1985 letter

camerce for this policy are still in @m early otese. to Senator Mitchell concerning Clean Water Act jurisdict‘on over an

Discussions on “eusenee — 7 a as Pond es [ am not personally familiar

. with the facts of Pond and am therefore not in a position to question

FOR THE COMMANDER: the Galveston District's jurisdictional determination in that eon

However, I believe that your letter, if circulated to the field as

guidance, could possibly be interpreted inconsistently with EPA's

ang FS oe" legal memorandum of September 12, 1985. We have both assured Senator

: - ae PATRICK J. & : “itchell that EPA's legal memorandum represents the Administration's

Enc. bee Brigadier General, USA position on the question it addressed.

_ Deputy Director of Civil bork

— ; The poreee on ony Pond = eer which could possibly lead to

oe —_ , misunderstanding is “use by migratory birds or endangered species the

DISTRIBUTION: alteration or elimination of which could affect interstate commerce”

(See page 3) while our regulation speaks solated waters the

7 . . : use, destruction, or degradation of which could affect interstate

- - S- fer: -“ i ii. commerce, that requirement can be satisfied by showing that a parti-

,< oe Se. : ea be cular waterbody is or could be used by migratory birds or endangered

- eee ua -; ; ” Cee species. The phrase in the Pond 12 letter could be misconstrued as

ee ee 3) 4 eee eee oe requiring a twoestep process for establishing jurisdiction based on

ee tere emt a - a migratory birds and endangered species: first a determination that a

= saa particular waterbody is or could be expected to be used by migratory

i ° , “ birds or endangered species, and then an additional determination of

‘ : the effect on interstate commerce through the alteration or elimination

om ° , of such a water (alone or in conjunction with the loss of other waters

' adage” . -— | with the same characteristics).

. f rse, be inconsistent with our legal

ee > ee ae nee that migratory ee

caenian thie be regulated under the commerce clause. It - A mr

on the incest on commerce of the destruction of any one be _.

por fe need not itself be significant. Thus, since migratory

ted under the Commerce clause,

and their habitat are sot cd — ae ee caneat (erent

establishing that a particu ts the requirements

. " in our memorandum) meets ¢t

the “is or could be used sexten and no further showing is required.

for Clean Water Act juris

f one were

estep process might be appropriate 1

a “ith. eae Aa migratory birds or endangered a”

os ific examples in section 122.2(c)(1)-(3) of our + aii

von agg your Pond 12 memorandum specifically o—, : swanane

mony 4 and endangered species, any reference to a ae eee is

in that setting would be confusing. I am sure you his point

ncaied to ensure that there is no misunderstanding gn this pornt.

Richa Sanderson

Deputy Assistant Administrator

for External Affairs

“hi | ban |

OEPARTMENT OF THE ARMY

JACKSONVILLE DISTRICT. CORPS OF ENGINEERS

*. 0. BOX 4870

JACKSONVILLE. FLORIDA 32232-0019

’

Regulatory Division

Field Monitoring Branch

a PUBLIC NOTICE

ot mgners

TO WHOM IT MAY CONCERN: The purpose of this notice is to advise the public

& recent memorandum on Clean Water Act jurisdiction over

The legal memorandus was prepared by EPA in repouse to « specific questica

oa interstate commerce during Senate oversight hearings on the Section 404

prograa. A copy of the EPA legal memorandum is available from the U.$. iray

Jacksonville, Post Office Boz 4970, Jackscaville,

32232-0019, ATTN: Field Monitoring Branch, upoe writtes request.

The specific question the memorandum addresses is the use of migratory birds

as @ nexus for interstate commerce. The legal semorandurm clarified that the

phrase “are or could be used" is the appropriate language.

Ta view of the above, virtually all isolated waters and wetlands have been

provided with an interstate commerce connection and therefore those waters

and wetlands are subject to Sectica 404 jurisdiction. Accordingly, prior to

discharging any dredge or fill material into these areas, a Department of

the Army permit will be required.

Anyone planning to discharge dredge or fill

United States including wetland areas

applicable Area/Field Office shows on

for a Department of the Army permit in

impact oo Sectics 404 jurisdictica.

Any questions regardiag the above should be

FOR THE CO‘S DER: e

directed to Ronald HB. Silver at

| RECEIVED

MAR 14 1986

PNe Osean MTV

EXHIBIT 23

° 23

ir. Jonun Moovjhar

muctic Teseurce Division

Office cf External Affairs

“nviromnental Protection Agency

washington, D. C. 20460

Wear “£. Meaghar:

Inclosec is a draft Regulatory Giicance Letter (SGL) on isolate

waters that we are proposing to scm to our field offices. The RCL

builds upon the guidance proviced in your legal memorandum of

September 12, 1985, adding aiditional clarification to the concepts of

a true "waterbody", and “use” by migratory birds anid endangered

species. In addition, we have developed a list of waters which

generally will not be considered woters of the United States.

Please review the draft RG. and call us to set, upa convenient

tine when we can mest to discuss its contents. We also have eent a

copy of the RGL to the Department of Justice erd will ask that they ,

*- ——-- participate in subsequent meetings.

ae : EXHIBIT 24

. | a

23 MAY So

Sincerely,

C. G. Goad

Ghief, Cperations and Readiness Division

Directorate of Civil Works

Enclosure

. .

“+

, 7 - » «©

“ ee 2 . ; ..

. ’

. ee

2 oo -_ o_o --_-— -—. - ~~ ~_-— ooewwer em -. e :

7 . . . ** a a e* ‘ . - _°

. o. Se . 8

: 5

’ : - .

se a 5.3 oe de - ahs wSd..

pore Ors eee 1) | 7

Yotr.ons OF EPA'S m@norcexls: concer: a

+@e- ‘@e te es ol oes re

frvir =: TessoNubl2 manner. I! ae ce

- letter Jated 3 Novanber 1985, «: forwarded to you an + ys iromments! ane tsolate!, egheser:) crass 2 ex 60 s* 3ffect cxr-cee-

_ 3s do ll 4 t =i: rie o .

“gency (EPA) legal menorancus Gated 12 Septerse: Seasonally dry stream tributarics trict are waters S6 es teen Sees

. po ants mea d - we ** e a - -

SevEN Tacters as indicators of connections to interstcste cawzerce to deter7.nc ye wasned inte receiving waters arg SCrOoSs state

et. -_—~—— ~ =

lines. Instead, an isolated water's effect on camerce must enanate fran <30

<urisdiction in isolated waters end wetlands. This Regulatory Guidance Letter

(RGL) nas been developed in consultation with the EPA and further clarifies of the water in place. The general principle is that an isolated waterbady

i] . o ; .

a ot men anaes tn cieee RO ttt, is a “water of the United States” if the evidence shows that it is used or

would be used by migratory birds or endangered species in the ordinary course

2. Initially, it is important to establish that an area truly is a waterbody. of events. One should consider whether the characteristics of the waterbady

would lead one to expect it to be used as habitat for at least part of the

life cycle of migratory birds or endangered species. for exanple, if one

would expect the waterbaly to be used with same degree of regularity as a

Water in an isolated depression normally cust be sufficiently persistent °°

exhibit an ordinary high water mark or the. presence of wetland characteristics

sefore it can be considered as a waterbody potentially subject to Clean Vater

isolate! resting or feeding area for birds duriny migration, that waterbody would be a

Act jurisdiction. This is not intended to exclude autanatically

” ’

ness can be obtained fran type which is so lacking in genuine habitat value that one would expect no

Evidence concerning the persistence of an area's wet |

more than occasional or accidental use by migratory birds, that waterbody

would not be a “water of the United States."

: , , x , i oe

its history, vegetation, soil, drainage characteristics, uses to which It

been subjected, amd weather or hy’ ~ologic records. Remember that geogrep.ic

-urisdiction under the Clean Water Act is dynamic amd can be affected by

3 3 —_ as “~wi’ ” ‘

ami osher chev’

natural, sernitted or unrejulated hyér2ulic modi fication a. The best determination would Se ~ace through a showin of “actual

use” by migratory birds in at least 1 mrticn 2 the wWatechedy. Kewver, it

oe sd COSLA :

1S ROC Siwsys Dossiole to show actual us). Seccfur2, if a mrticuicr

witersody shares the characteristics of stor witers ictse use >:

S2geaewey Lisle is whl eee selistt, sce Soret ee epi aeiog cree oe

o@:+ — . . - - -

. Selec dla (et Se CBO BY MIQGIESEy -.. sc.

uw. ReGarding endangered species, -5 tere 18 TD eviccnse of actus. use

>f the wateroody or similar waters in the arcs Dy the species in qu2stion, one

stiould conclude that the waterbady is not susceptible to use by such species,

notwithstanding the particular characteristics of the waterbody.

6. ‘teither the process of excavating material fram cry lard nor the placement

of fill into any waterbody shall in and of itself be considered an interstate

commerce nexus, regardless of the origin of the fill, the disposition of the

° ~ ’

e the ce of fuel uscd

excavated material, the subsequent use of the fill, sour

during the operation or the business connections of the individual owing,

ion must

managing or comducting the operation. An intcrstate carmerce connection

be based on the use of the waterbaly itself p-ior to the canmence-ent of an

activity subject to Corps regulatory authority.

7. AS a general rule the following areas are “ot considered waters of the

United States:

mer ~. nedies cf-

a. Artificial reflecting or swimming pocls oF ote: ernazzental 2d

* ° =

ter crotted by excavntiny and/st ut." ty +e OS

recreational or aesthetic reasons;

9. artificial lakes c: oS Se OR

Lami to collect and rotain water for sz:

PSETOSSS 25 SlSS: Atoll,

irrigation, settling basins, cooling treatnen:, rice Growing Of asacclture;

and

Cc. Water filled depressions created incidental to construction activity,

and pits excavated in Gry lard for the purpose of Cbtaining fill, sard or

gravel wmiless ard wmtil the operation is abandoned and the resulting baijy of

water becanes “naturalized” ard then satisfies one of the seven factors

enunciated by EPA.

8. ‘This guidance expires 31 Decenber 1988-tnless sooner revised or rescinded.

FOR THE CHIEF OF ENGINEERS:

PATRICK J. ELLY

Brigadier General

Deputy Director of Civil izrks

[EPA letterhead]

SUBJECT: Clean Water Act Jurisdiction Over Isolated Waters

1. By letter dated 8 November 1985, we forwarded to you an Environmental Protection

Agency (EPA) legal memorandum dated 12 September 1985, which listed seven factors as

indicators of connections to interstate commerce to determine jurisdiction in isolated waters and

wetlands. This Regulatory Guidance Letter (RGL) has been developed in consultation with the

EPA and further clarifies the use of those factors in making jurisdictional determinations.

2. Initially, it is important to establish that an area truly is a waterbody. Water in an isolated

depression normally must be sufficiently persistent to exhibit an ordinary high water mark or the

presence of wetland characteristics before it can be considered as a waterbody potentially subject

to Clean Water Act jurisdiction. This is not intended to exclude automatically isolated areas

which, due to climatic factors, are characterized as seasonal wetlands. Evidence concerning the

persistence of an area’s wetness can be obtained from its history, vegetation, soil, drainage

characteristics, uses to which it has been subjected, and weather or hydrological records.

Remember that geographic jurisdiction under the Clean Water Act is dynamic and can be

affected by natural, permitted or unregulated hydraulic modification and other changes [illegible]

regime.

3. Once an isolated area has been verified as a true waterbody, then those portions of EPA’s

memorandum concerning migratory birds and endangered species must be applied in a

reasonable manner. Isolated, ephemeral areas of water do not affect commerce as do seasonally

dry stream tributaries that are waters of the United States from which pollutants may be washed

into receiving waters and across state lines. Instead, an isolated water's effect on commerce must

emanate from use of the water in place. The general principle is that an isolated waterbody is a

“water of the United States” if the evidence shows that it is used or would be used by migratory

birds or endangered species in the ordinary course of events. One should consider whether the

characteristics of the waterbody would lead one to expect it to be used as habitat for at least part

of the life cycle of migratory birds or endangered species. For example, if one would expect the

waterbody to be used with some degree of regularity as a resting or feeding area for birds during

migration, that waterbody would be a “water of the United States.” One the other hand, if the

waterbody is of a type which is so lacking in genuine habitat value that one would expect no

more than occasional or accidental use by migratory birds, that waterbody would not be a “water

of the United States.”

a The best determination would be made through a showing of “actual use” by

migratory birds in at least a portion of the waterbody. However, it is not always possible to show

actual use. Therefore, if a particular waterbody shares the characteristics of other waters whose

use by and value to migratory birds is well established, those shared characteristics make it likely

that the waterbody in question will be used by migratory birds. Conversely, the waterbody

would likely fail the criteria when information exists that the particular waterbody is not used,

and the characteristics are not conductive to use by migratory birds.

b. Regarding endangered species, if there is no evidence of actual use of the

[Appears to be mis-numbered in original.

6. Neither the process of excavating material from dry

land nor the plac

paresis ‘ shall in and of itself be considered so tnesetpenmmemeamnen, manned mae

origin of the fill, the disposition of the excavated material, the subsequent use of the fill the

use of the n-

hority. waterbody itself prior to the commencement of an activity subject to Corps regulatory

aaa As a general rule the following areas are not considered waters of the United States:

ficial reflecting or swimming pools or other ornamental bodies of water created by

excavating and/or diking dry land to retain water recreational or aesthetic reasons;

Artificial lakes or ponds [illegible] land to collect and retain water for such purposes as stock

Wales tiled a aOm Settling basins, cooling treatment, rice growing or aquaculture; and

pee depressions created incidental to construction activity, and pits excavated in dry land

purpose of obtaining fill, sand or gravel unless and until the operation is abandoned and

the resulting body of water becomes “naturalized” and then sati

enunciated by EPA. satisfies one of the seven factors

8. This guidance expires 31 December 1988 unless sooner revised or rescinded.

FOR THE CHIEF OF ENGINEERS:

PATRICK J. ELLY

Brigadier General

Deputy Director of Civil Works

Path: DOCSOPEN\W ASHING T0848 1 \54753\00001 2\3$5601! DOC. Doc # 163482; V. 1

> a; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

iw: _ --< = 3, TSE .SE WASHINGTON, D.C. 20460

ms ME 2 8 or

OF FICE OF

WATER

‘re. John 2, Clore

Chief, Iperations and Readiness Division

Nirectorate of Civil Works

Office of the Chief of Engineers

Washington, 0.C, 20314-1000

Jear “rr. clmore:

Thank you for the opportunity to review vour draft Regulatory Guidance

Letter (PGL) on Section 404 jurisdiction ove: isolated waters. Our comments

are marked on the enclosed copy of the draft RGL.

In addition to our specific comments, I would like to point out that

Paragraph 3 of the draft RGL states as a general principle that “an 2

water body is a “water of the United States" if the evidence shows that it

is used or would be used by migratory birds or endangered species in the

ordinary course of events.” It should be clarified that other commerce

clause connections may exist, for example non-avian wildlife with ranges

likely to cross State lines, fish harvests that go into interstate yoyo 2

and visits by out-of-State scientists, recreationists, etc. It may be usefu

to cite the examples used in your regulations (33 CFR §328.3(a)(3)) and

preamble (51 Federal Register 41217), although again it should be made

clear that these are only examples and not all-inclusive.

In view of EPA's lead responsibility in the area of Clean Water Act

jurisdiction, I would like to propose that we prepare and issue this oo

as joint guidance, as we did with the recent guidance on drainage ditch ma +

tenance under Section 404(f)(1)(C), rather than as a Corps RGL. If you -

orefer to issue this as a RGL, we request that you provide us an opportun ty

to concur on the RGL prior to issuance, after which we would issue a

guidance to our Regions. We believe that joint or parallel issuance wou d

be a step toward clearer and more consistent determinations of Clean Water

Act jurisdiction.

his

We commend the Corps for taking the initiative in developing t

guidance. Please contact Suzanne Schwartz of my staff at 382-5043 if you

wish to discuss our comments.

' a

} oh fi fll )

+ David G. Mavis, Direct |

Office of Wetlands Protection

DEPARTMENT OF THE army

OFFICE OF THE CHIEF OF ENGINEERS

WASHINGTON. O.C. 203141006

ow *

acm ve __ a

aTTEa Ton or,

CECW-OR

Mr. David G. Davis

Director, Office of Wetlands

Protection

Envirormental Protection ency

401 M Street, SW. “7

Dear Mr. Davis:

Enclosed is a final version of the regulato

. try guidance on isolated

waters that you reviewed and returned to us by letter dated August 28,

1987. We have adopted all of s ted

oats your sugges changes ae two

a. We have retained the t sentences in paragraph 3 deali eh

the canparison of ephemeral arvas and seasonal ~ Pe

believe are important concepts; and ly dry streams which we

5. Restatement of the Preamble language for 33 CFR 328 3( t

paragraph S$ of your revisions) is not necessary since that meine une

derived fran the draft regulato uidance le

7 Ay try 9 tterc (RGL) and has

Regarding the camment in the second paragraph of letter

concerning “the general principle" in paragraph 3 of B ny &- ~ RGL, ~@

‘ave changed the phrase to read “a general principle.” We do not

believe it is to relist other commerce clause connections

since: they are y much more clear-cut; it is very unlikely chat

there is any waterbody in the United States that would have one of these

other conmmections and not sane type of migratory bird usage; ard these

other connections are seldas brought into question by the field.

CEPARTMENT OF THE ARMY

OFFICE OF THE CHIEF OF CHGINECERS

WASHINGTON. O.C. 1031 #1008 . n

WASHINGTON, 0.C. 20460

SUBJECT: Clean Water Act Jurisdiction Over [Isolated Waters

l. This guidance has been developed jointly between the Corps of Engineers

and the Envirormental Protection Agency (EPA) and further clarifies

jurisdiction over isolated waters.

2. Initially, before reaching the cammerce connection issue, it 1$ important

to establish that an isolated area truly is a waterbody. Water in an isolated

depression normally must be sufficiently persistent to exhibit an ordinary

high water mark or the presence of wetland characteristics before it can be

considered as a waterbody potentially subject to Clean Water Act jurisdiction.

This is not intended to autanatically exclude isolated areas which, due to >

climatic factors, are characterized as seasonal wetlards. Evidence concerning

the persistence of an area's wetness can be obtained fram its history,

vegetation, soil, drainage characteristics, uses to which it has been subject, \

ard weather or hydrologic records.

2, Once an isolated area has been verified as a true waterbody, then chose

cortions of EPA's memorandum concerning migratory birds and endanjered species

must be applied in a reasonable manner. [solated, ephemeral areas of water ~

the United States fran which pollutants nay be washed into receiving waters ;

and across state lines. Instead, an isolated water's effects on yoy Ay

qananate fram use of the water in place. A general principle stated in A's

memorandum is that an isolated waterbody is a “water of the — if

the evidence shows that it is used or could be used by migratory Sir Am

endangered species in the ordinary course of events. me should — —

whether the characteristics of the waterbody would lead one to — i

used as habitat for at least part of the life cycle of migratory birds = -

endangered species. Yor example, if one would expect the waterbody ep 4

with sane degree of regularity as a cresting or feeding area for <r —

nigration, that wa would be a “water of the United States.

other hamd, if the waterbody is so lacking in habitat value thac use a

nigratory birds has not been observed and would not be reasonably expec ol

waterbody.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ae

a. The best determination wo. ld be made through a showi .

use” by migratory birds in at least a portion of os Pte, , a a

L$ mot always practicable to show actual use. Therefore, if a particular

waterbody shares the characteristics of other waters whose use by and value to

“igratocy birds is well established, those shared characteristics make it

likely that the waterbody in question would be used by migratory birds..

Conversely, the waterbody would likely fail the criteria when information

exists that the particular waterbody is not used, and the characteristics are

NOt conducive to use by migratory birds,

5. Sagarding erdangered species, if there is no evidence of actual use

of the waterbody or similar waters in the area by the species in question, one

Tay Ordinarily assume that the waterbody is not susceptible to use by such

Species, unless there is clear evidence of potential use of the waterbody by

che species.

4. An interstate cammerce connection must be based on the use or potential

use of the waterbody prior to the commencement of the activity subject to

Corps tegulatory authority. Neither the process of excavating material fran

dry land nor the placement of fill into the waterbody shall in and of itself

De considered the requisite interstate canmerce nexus, regardless of the

origin of the fill, the disposition of the excavated material, the source of

fuel used during the operation or the business commections of the individual

owning, managing or conducting the operation. Where an isolated waterbody

dues not otherwise have an interstate camerce connection, the fact that the

fill is associated with interstate commerce does not establish the requisite

interstate Camnerce connection for the waterbody. However, once the fill is

in place, interstate commerce activities which do take place as a result of

tne fill, establish an interstate cammerce connection for the unfilled portion

Jf the waterbody.

David G. Davids

Director

Office of Wetlards Protection

EXHIBIT 25

United States A 10 Alasna

Ermnronmemai Protecaon 1200 Suxth Avenue ano

Agency Seattie WA 96101 Oregon

Wastungton ‘

SEPA om

Reply To

Attn Of: wWD-138

Burt Paynter, Chief

Regulatory Branch

Portland District, Corps of Engineers

Post Office Box 2946

Portland, Oregon 97208-2946

RE: June 13, 1389, Letter to Vivian M. Brown (071-0YA-4--008496)

March 3, 1989, Letter to Stan Geiger

Dear ur. Bikers

I was recently provided copies of two letters issued by your office

regarding Section 404 jurisdiction. The referenced letters deal with

jurisdictional questions on {isolated and agricultural wetlands, respectively.

The guidance and decisions which your office provided in these letters differ

significantly from EPA's position and from the guidance provided in the new

Federal Manual for Identifying and obey ney Jurisdictional Wetlands

(January 1989). I would like to present our interpretation of the

jurisdictional status of the sites addressed in the referenced letters. Your

views on our interpretation would be appreciated.

The June 13, 1989, letter to Vivian M. Brown concludes that the isolated

wetland in question is not a water of the United States. This determination

is based on a finding that the wetland “is not used by and is not susceptible

to use by migratory waterfow].” We disagree with this finding for several

reasons. First, the basis for the finding is an ~ a? -y lack of open water,

which is considered preferred habitat for waterfow!. In a Memorandum for the

Record (MFR) dated June 7, 1989, by Robert Rose, personal communication is

cited (John Marshall, Oregon Division of State Lands) indicating he had seen

water three feet deep at the site. Even if this was not the case, waterfow!

use of emergent marsh is not limited to open water.

Regardless, the commerce nexus at issue is not whether a site is used by

migratory waterfowl! but by aigratory birds. In the same MFR, Mr. Rose

indicates that the wetland area 1s used by sandpipers, which are migratory

birds. However, a notation on the MFR dated June 9, 1969, cites the

Tabb Lakes decision as a basis for dismissing use by “other migratory birds.°

The Tabb Lake decision does not refute the sigratory birds commerce

nexus. Its decision was quite narrow, pertaining only to the Tabb Lake case

two

age a continuing dialogue among our

ee Series ead the Orenen Division of State Lands regarding

land Office

ee, SS came. It is extremely important <= go

ahs sme public a consistent approach on he ade Ad — —_

: f the new jurisdictional method. [owa “. Apel

ee pee dictional calls similar to those

onsulted on juris ,

aaa of Ole letter prior to making a final determination

Above all,

Sincerely,

William M. Riley, Chief

water Resources Assessment Section

cc: Dov Wettman, Office of General Counsel

liff Rader, OWP

DEPARTMENT OF 7HE ARMY

U.S. Army Corps of Engineers

WASHINGTON, 0.C. 20314-1000

REPLY TO

ATTENTION OF:

3.4 JAN 1890

CECW-OR

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Clean Water Act Section 404 Jurisdiction over Isolated

Waters in Light of Tabb Lakes v. United States

i. AS a result of the Fourth Circuit court decision in Tabb Lakes

v. United States, the enclosed Corps of Engineers/Environmental

Protection Agency memorandum was developed to provide suidance on

the regulation of isolated waters pending completion of rulemaking

on this subject.

2. Questions or comments concerning this guidance should be

directed to Dr. John Hall (202) 272-0201 or Mr. Lance Wood (202)

272-0035.

FOR THE DIRECTOR OF CIVIL WORKS:

\ oneal

Encl ei Yep 2

Chief, Operations, Construction and

Readiness Division

Directorate of Civil Works

DISTRIBUTION:

(See pg. 2)

EXHIBIT 26

> "y United States Environmental Protection Agency

(sz;

%, al United States Department of the Army

4¢

SUBJECT: Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of

Tabb Lakes v. United States

d opinion, the United States Court of

Corps of Engineers may not rely upon

February 11, 1986, by Brigadier General

1. On September 22, 1989, in an unpublishe

Appeals for the Fourth Circuit held that the

memoranda issued on November 8, 1985, and

Kelly, then Deputy Director of Civil Works, to assert jurisdiction over isolated waters

section 404 of the Clean Water Act. Tabb Lakes v. United States, (No. 89-2905,

ovides direction on the continued assertion of

as required by 33 CFR 328.3(a)(3), in the wake of the

under

4th Cir.). This memorandum pr

jurisdiction over isolated waters,

Tabb Lakes decision.

2. Tabb Lakes focused on an EPA and Corps interpretation of the definition of “waters

of the United States” including isolated waters, described at 33 CFR 328.3(a)(3), as

follows:

All other waters such as intrastate lakes, rivers, streams (including

intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie

potholes, wet meadows, playa lakes, or natural ponds, the use, degradation

or destruction of which could affect interstate or foreign commerce,

including any such waters:

(i) Which are or could be used by interstate or foreign travelers for

recreational or other purposes, or

(ii) From which fish or shellfish are or could be taken and sold in

interstate or foreign commerce; OF

(iii) Which are used or could be used for industrial purpose by industries

in interstate commerce ....

The EPA General Counsel issued guidance on September 12, 1985, interpreting this

regulation to include isolated waters which are or could be used as habitat by birds

protected by Migratory Bird Treaties, migratory birds which cross state lines, and by

endangered species. Brigadier General Kelly adopted this interpretive guidance in the

Corps guidance memoranda cited above which were the subject of the Tabb Lakes

litigation. In Tabb Lakes, the Court held that the Corps may not rely on this

re ed —- in making a jurisdictional determination because the guidance was

Svan pe e that should have been, but was not, proposed for public comment

wade ac option by the agencies. The United States does not intend to appeal the

i mon pg s Tabb Lakes decision. Instead, the EPA and the Corps intend to

er ae me mg te possible an APA rulemaking process regarding jurisdiction over

wee _, aoe provides guidance on how Corps FOAs and EPA

' gional ntinue to assert CWA jurisdiction over isol

ods of Ge Gun at A to ass er iso ated waters in

hana ppeals decision in Tabb Lakes, and pending completion of the

eee States believes that the Fourth Circuit’s Tabb Lakes decision was

Lakes pg oo, oo ~ to py the legal questions decided in the Tabb

a . Because t ecision is not bindin

the Fourth Circuit, we will not imple af g On courts outside of

oe oe ment the decision outside th ituti

Fourth Circuit (i.e., outside the s P € area constituting the

" . . ”~ tat . ° . . .

Virginia, and Maryland). ¢s of South Carolina, North Carolina, Virginia, West

a be the Fourth Circuit, we will follow the holding of Tabb Lakes which was

—. _ 4 the procedural notice-and-comment issue discussed above. Thus within th

ur + or eendiny bone rely upon or cite the above-referenced memoranda in :

makin jurisd rminations. However, we will continue to assert jurisdicti

ge ye by dor “waters of the United States" regulatory definition, rent a

prthan ty ng tion or destruction of which could affect interstate or foreign ‘

on bs is required by our existing regulations adopted through the Administrative

wna pote a — Corps FOAs and EPA Regions will apply this

10n to each site on a case-by-case basi d will

information in a manner consistent with of the aa

: the language of the regulations and th

me ap asa intenuon that Clean Water Act jurisdiction be cuateed over

est exte Tmiss

a nt legally pe ible under the Commerce Clause of the

a. pea maple = ——— over all isolated waters within the Fourth

, of the United States” at 33 CFR 328.3

sen ace Rampen the APA rulemaking process and remains in full ny as efiee

rm meen ach oa eo decision. This definition encompasses "isolated" waters

i in » Since’ it specifically cites as examples of jurisdicti )

ae wet meadows, [and] playa lakes...", all of ‘which ee ene -

} ard We — — to PS gee the Tabb Lakes decision within the Fourth

Owever, we interpret that decision as allowing the Co d

to assert CWA jurisdiction over isolated wat di [asa

ver ers. Accordingly, we expect Corps FO

and EPA Regional offices within the Fourth Circuit to continue to regulate + Ae

waters, including isolated wetlands, as required by existing regulations. Consultation

with your Office of Counsel is advisable for doubtful cases.

6. If there are any questions with regards to implementation, Corps Divisions should

contact Mr. Lance Wood (CECC-E, (202) 272-0035) or the Chief, Regulatory Branch

(CECW-OR, (202) 272-1785). EPA Regions should contact Mr. Steve Neugeboren

(Office of General Counsel, (202) 382-7703) or Ms. Suzanne Schwartz (Office of

Wetlands Protection, (202) 475-7799).

For the Chief of Engineers:

ae y iloalap

PFLMORE Date ’

Chief, Operations, Construction,

and Readiness Division

Directorate of Civil Works

For the Environmental Protection Agency:

2 J/-/7- 72

DAVID G. DAVIS Date

Director

Office of Wetlands Protection

Pe Fa

Cj / ’

Z ‘—

EXHIBIT 27

Hemerable owe: i icket:.

Mouse of Regr isciitati:

Weehiagton. oc. os

ear =. Pick: tt: ‘eo

This is i: respense to .

request ing Gle rification oa goetes of Jeneary hy 1984,

wetland delim ation ey A, -S. Army Corps of

*eaturation ti tis surfaces = “eerPeetation of tie a

You are oerr. censisqred a

the surface’ oven Ghewpn Sthe' en me sf the wei: * tease” the

- SSE Sn eee tage ata aa tec “eneeee

[ on tae vat ——— ae oe oe aE

aate witnhi: « “majer pertion of —

tLon*. te rece of

13 iaumes of the snotenee its ent e teusiiy

of the eeil* tw wet at any tine at “the top

sTanerec the soil’, hover, the soon sone 0C che tail it,

pismrated Gur ng the «rowing season, as ret

profile.

presence of field indicaters is the

Te celles ees te we Setioniae, EF

ceeneieal vei: dity ami practices ter siniecaring ne progres

te the pe

2 ene istance he beer

Sees ceeceitas at ane ot spease Sint so seperees”

tasked vith studying ve repost, waiee is

ané locks forvar! te the 4

feg completion a September 36. 1994.

contimeed personal interest is this

Retyped Copy of Letter from Colonel Buck to Owen Pickett

O02 FEB 1994

Operations, Construction

and Readiness Division

Regulatory Branch

Honorable Owen Pickett

House of Representatives

Washington, D.C. 20505

Dear Mr. Pickett:

This is in response to your letter of January 21, 1994,

requesting clarification of the U.s. Army Corps of Engineers

wetland delineation policy and interpretation of the term

“saturation to the surface”.

You are correct that an area may be considered “saturated to

the surface” even though “the top plane of the soil” is dry. The

states

clearly that the observations for indicators of saturation to the

surface are made within a “major portion of the root zone of the

prevalent vegetation”. The entire root zone, which is usually

within 12 inches of the surface, is the area inspected for

evidence of wetland hydrology. The presence of field indicators

results from anaerobic conditions (i.e., the lack of oxygen) in

the upper part of the soil profile. It has been the assumption

of both the Corps and the Environmental Protection Agency, based

on the technical literature of wetland scientists, that capillary

fringe allows the upper part of the soil to become saturated

above the actual water table. The degree of saturation varies

with the texture and structure of the soil, among other factors.

Furthermore, where the Corps determines that areas are saturated

in the root zone to the extent we identify them as wetlands, the

top plane of the soil is saturated, at least briefly during rain

events. The top plane of the soil drys quickly because of

exposure to the air. However, even where the top plane is dry

the saturation in the root zone has a controlling influence on

the soil and vegetation.

It is also important to understand that

wetland hydrology

sufficient to meet the requirements

of the 1987 Corps of

, Must be present at some

time during the growing season. Many wetlands which are

inundated during the growing season may be dry at “the top plane

of the soil” during the non-growing season. Some saturated

systems are virtually never visibly wet at any time at “the top

plane of the soil”, however, the root zone of the soil is

saturated during the growing season, as reflected in the soil

profile.

The reliance on the presence of field indicators is the

methodology utilized by the Corps nationwide, due to both its

technical validity and practical application. Use of field

indicators of hydrology is vital to administering the program

because inundation or saturation of any particular piece of land

is variable and transitory. We use indicators as a means of

determining soils are inundated or saturated for the time

necessary to be a wetland. We continue to work with the soil

conservation service to improve our indicators. Moreover, the

Corps continues to provide assistance to the National Academy of

Sciences Committee on Wetlands Characterization, which has been

tasked with studying the issue of wetland delineation approaches,

and looks forward to the Committee’s report, which is scheduled

for completion on September 30, 1994.

We appreciate your continued personal interest in this

important and technically complex issue. If we can provide

further information please let us know.

Sincerely,

R. O. Buck

Lieutenant Colonel, U.S. Army

Assistant Director of Civil Works,

Atlantic Region

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.