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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 159

## 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

rd

li

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).

© Letter from Peter J. Offringa, Brigadier General, Deputy Director of Civil
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).

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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.

SS

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,

v.
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,

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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;
or

(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

2

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.

3
(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

4
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

5
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

a

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.

on

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.

}
te

10

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

a7
:
g

:
if

|

ig

E

E

3

9

|

‘

'
|
i
H
:
:

to observe and study

iL
,
.

unusual collection of species directly dependent on

is
"7
fh
1

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

3
:

* 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.*

£
Pe
-£
i
i
&
veil

5
i

¢
ij

g
=
Z
[
E
q
,

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

ne

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:

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

>>? } 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.
ae

| 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
~ 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 :

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

o@:+ — . . - - -
* «©. 26 4e estowast.*

. 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

* ° =
> es. 2° oe a; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
iw: _ --
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 ~
not affect camerce as do seasonally dry stream tributaries that are waters ©
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 "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

it

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A25. Public record. Not legal advice.