Petition for Writ of Certiorari — Leslie Salt Co. v. United States
Supreme Court brief1991
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90-7 92 ny
ee NOY 13 1999
JOSEPH F.
PS AMIOL, UR
GE
No. eee
2h,
In the Supreme Court of the United States
OCTOBER TERM, 1990
LESLIE SALT Co. and CARGILL, INC.
Petitioners,
VS.
UNITED STATES, et al.
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Louis F. CLAIBORNE*
EDGAR B. WASHBURN
WASHBURN, BRISCOE & MCCARTHY
A Professional Corporation
144 Second Street
San Francisco, CA 94105
Telephone: (415) 543-8131
Attorneys for Petitioners
* Counsel of Record
BOWNE OF SAN FRANCISCO. INC * 190 NINTH ST *« SF. CA 94!03 * (415) 864-2300
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QUESTION PRESENTED
Whether the Clean Water Act reaches temporarily wet areas
whose “waters” (a few inches of rainwater ponding only days or
weeks during the winter season) are neither navigable nor adja-
cent to, or connected with, any navigable waterbody, and whose
claimed link with interstate commerce is solely the presence of
migratory birds or endangered species.
ii
PARTIES BELOW
In addition to the parties named in the caption, defendants in
the District Court and appellants in the Court of Appeals in-
cluded the then Secretary of the Army (John O. Marsh), Chief
of Engineers (Lt. Gen. E.R. Heiberg), and District Engineer for
the San Francisco District of the Corps of Engineers (Lt. Col.
Andrew M. Perkins), all sued in their official capacity. Interven-
ors in the District Court and appellants in the Court of Appeals
were The Save San Francisco Bay Association, a non-profit
California corporation, and National Audubon Society, a non-
profit New York corporation.
TABLE OF CONTENTS
Page
SER CERES SE aay area l
Ne owas cen tg edb ehe sees Roe l
Statutory and Regulatory Provisions Involved........... 2
CCU SER EP UL Cl cee Wish h sc eb diss secicesaccs 2
Reasons For Granting The Writ...................... 7
A. The Question Presented is of Recurring Importance 7
B. The Decision Below is Plainly Erroneous......... ll
C. The Issue is Ripe for Resolution by the Court.... 22
CTL GREW OMe h eS Ah Lb ou sb how's cee be Oncsnene 23
PTE Cw LCUN COWS oh wR Nia cg a Ca cseravaceeses A-1
A. Opinions of the Court of Appeals............... A-1
B. Opinion of the District Court .................. A-15
eee A-42
D. Statutory and Regulatory Provisions............. A-44
E. Corps of Engineers Memorandum of Jan. 24, 1990,
and attached Joint Memorandum of EPA and Corps
ee eek Cig sac vah Ee Kh Od ba8-0% A-46
iv
TABLE OF AUTHORITIES
Cases
Page
Andrus v. Sierra Club, 442 U.S. 347 (1979) ............ 20
Bowen v. American Hospital Ass’n, 476 U.S. 610 (1986) 18
Bowen v. Georgetown University Hospital, 488 U.S. 204
I 6S a8 os 6 ETA WER EA UR RMR KOK: HERS OK 068 0 18
Chemehuevi Tribe of Indians v. Federal Power Commission,
ee I Ls cok cabs t neck Gp ecw San ees 15
Chevron USA v. NRDC, 467 U.S. 837 (1984) .......... 18
Dole v. United Steelworkers of America, 108 L.Ed.2d 23
a sn SO SARE ee RN ES eg” a En ae 18
Economy Light & Power Co. v. United States, 256 U.S. 113
DE a nike wwe Uk aaa ae aaa ae ee 15
ETSI Pipeline Project v. Missouri, 484 U.S. 495 (1988) .. 18
Federal Power Commission v. Union Electric Co., 381 U.S.
I Bsa eS SO Or re rs ae 6 Ucn 13,14
Gillespie v. United States Steel Corp., 379 U.S. 148 (1964) 23
Immigration & Naturalization Service v. Cardoza-Fonseca,
Se en ie veh ba Gees benéeieass 18
Kaiser Aetna v. United States, 444 U.S. 164 (1979) ..... 14
Leslie Salt Co. v. Froehike, 578 F.2d 742 (9th Cir. 1978).. 16
North Dakota v. United States, 460 U.S. 300 (1983) ....11, 17
NRDC v. Callaway, 392 F.Supp. 685 (D.D.C. 1975) ..... 19
Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S.
cL oigic conn RAaeESCS ne nn Ceneneea- 16
Polish National Alliance v. NLRB, 322 U.S. 643 (1944).. 14
Regional Rail Reorganization Act Cases, 419 U.S. 102
RES AN AI ae ee ey ny ee LOT Se ee eo oe ere ee 22
Riverside Irrigation District v. Andrews, 758 F.2d 508 (10th
RS etal eka Ca ae ee eg a 12
Robertson v. Methow Valley Citizens Council, 490 U.S. 332
PSS nth heehee scale Meee ke ean se WN Gan oasa 20
Sullivan v. Zebley, 107 L.Ed. 2d 967 (1990) ............ 18
Vv
TABLE OF AUTHORITIES
Page
Tabb Lakes, Ltd. v. United States, 715 F.Supp. 726 (E.D.
Va. 1988), aff'd, 885 F.2d 866, 20 ELR 20008 (4th Cir.
WOR 2 i wedi es i Rikeccken iced, Cuban 18, 20, 21, 22
United States v. Appalachian Electric Power Co., 311 U.S.
ie. PPR eE re ar rer Err 3 press hae Perr rye 15
United States v. Cherokee Nation of Okla., 480 U.S. 700
CRITE 3% vio 0c nnnknn poe Gane ines iaebe ene nee aks 14
United States v. General Motors Corp., 323 U.S. 373 (1945) 23
United States v. Kansas City Life Ins. Co., 339 U.S. 799
CORI in a's vv 0. 00s cue sae UU RU ek EU e Shc ueluens 14
United States v. Larkins, 852 F.2d 189 (1988) .......... 22
United States v. Leslie Salt Co., 350 U.S. 383 (1956) .... 18
United States v. Lexington Mill & E. Co., 232 U.S. 399
| re Oe Pee ce oe eee eee 14
United States v. Mendoza, 464 U.S. 154 (1984) ......... 21
United States v. Rands, 389 U.S. 121 (1967) ........... 14
United States v. Rio Grande Dam & Irrigation Co., 174 U.S.
OO SOE ehcp nce danddasdess ss nekerwisandsassees> 15
United States v. Riverside Bayview Homes Inc., 474 U.S.
S20 GUD et arine ceed usd cceeapsaeanenceh Seba passim
Williamson County Regional Planning Comm’n v. Hamilton
Me BE Be ae eer eer reer etre. 1 22
U.S. Constitution
Commerce Clause
OS Fe rr. er er ete a 16, 17
Just Compensation Clause
FI. ck Wks Ste Rha Hs cbse stk eae 14, 23
Statutes
Act of June 29, 1888
Bo UK eer re ere 15
Act of Feb. 19, 1895
IEEE 0's 00 6 4c é cease tk bane ees 13
Act of Sept. 15, 1922
hi AS | Pee ee re 13
vi
TABLE OF AUTHORITIES
Page
Act of June 22, 1936
ER a ee SO) eee pS nasa dg oee ee 13
Administrative Procedure Act
De ei ccc ccceeccecceccccuce 20
DP OED av cn ccccccccesncccescene 20
Bear River Migratory Bird Refuge Act
Dae waascksccesesece 1]
Cheyenne Bottoms Migratory Bird Refuge Act
TEI, Bowe iccsscdeseesccscsccesece 11
Clean Water Act
I icc ccicccccvcenesvesuecs passim
eS er ere 2
Es ee RRs TE EUEEED wo ccc nncccsccsessscces 2, 13
§ 404(b), (c) & (e), 33 U.S.C. § 1344(b), (c) & (e).. 11
kG oy ree ee 2,13
DU Be I EES 6 ccc cates ccsesnens 2
Emergency Wetlands Resources Act of 1986
ep IE, Sa co cv i escccncscccnescese 1]
Endangered Species Act of 1973
occ c csc cuccsasecssecnanes 1]
Federal Power Act
sn ccc hss cancsccccncensecs 14
Migratory Bird Conservation Act
aes 6 sue c ees ccnccecasesté 1]
Migratory Bird Hunting Stamp Act
ee can ncccuectesaccssinane 11
Migratory Bird Hunting Stamp Act Amendments of 1958
EE rr 1]
Migratory Bird Treaty Act
nos ccc cecbeaweedssscenccts 1]
Migratory Waterfowl and Other Wildlife Refuge in
California Act
I, cic c he ek tk cen ceachstdnecce 1}
Public Law 85-500
SMI, wn cc ccnsccsdscncteueveces 15
Rivers and Harbors Act of 1894
i oon cou cucudcccs's ¢abasa¥aWnths 13
Vii
TABLE OF AUTHORITIES
Rivers and Harbors Act of 1899
Ts. cecewecen
SI oc ccc cca cacascves
Tucker Act
Soa can chnbanccestcusnges
Wetlands Act of 1961
oc cencccvacccscres
Wetlands Loan Extension Act
Se awe
A
Regulations
Corps of Engineers Regulations (1975)
40 Fed.Reg. 31320 et 900. ... 2... 0c. ccc eee,
Corps of Engineers Regulations (1986)
SS Ce WS oS cee ssc des cevcess
Se
§ 320.4(b) (6) (j) (4) .............
CTT c haa asennce acsns
© Seeeeepuey Gt CG) ... 2... ceee
CE aie cketssecaccseds
DE he escesvcccseseaes
an Weekes bcoesece ane
sis ok v0.b0s« 06 60s es
6 occenke eek chases
Environmental Protection Agency Guidelines
‘yo § 0 0 3S
COS eee
GRR ARIE
ce a
NE oy econ ces exccxcces
Seo ae
G8 TIRADIIOMS |... 6 cose seins
seneueet 19
neiaees 1}
Viii
TABLE OF AUTHORITIES
Miscellaneous
Page
118 Cong. Rec. 33699 (statement of Senator Muskie) . . .15, 16
118 Cong. Rec. 33756-33757 (statement of Rep, Dingell).. 15
Development of New Regulations by the Corps of Engineers,
Implementing section 404 of the Federal Water Pollution
Control Act Concerning Permits for Disposal of Dredge or
Fill Material: Hearings Before the Subcomm. on Water
Resources of the House Comm. on Public Works and
Transportation, 94th Cong., Ist Sess. (1975) .......... 19
Frayer, et al., Status and Trends of Wetlands and Deepwater
Habitats in the Conterminous United States, 1950's to
FE Es 5 heh GON 666a kG 26s ewes neecas 8
National Wetlands Policy Forum, Protecting America’s Wet-
lands: An Action Agenda (1988) .............6.0005: 12
Oversight Hearings on Section 404 of the Clean Water Act:
Hearings Before the Subcomm. on Environmenial Pollu-
tion of the Senate Comm. on Environment and Public
Works, 99th Cong., Ist Sess. (1985) ................ 17, 19
Senate Conference Report 1236, 92nd Cong., 2d Sess. 144
SRR Rig st llg Maat Se ap pene ne 16
Supplementary Information, Corps of Engineers Final
Rulemaking (1986) 51 Federal Register 41217 ........ 3, 20
U.S. Congress Office of Technology Assessment, Wetlands,
Their Use and Regulation (1984) ................... 12
U.S. Fish & Wildlife Service, Wetlands of the United States:
Current Status and Recent Trends (Mar. 1984)........ 8,9
17 Wright, Miller & Cooper, Federal Practice and Procedure
oe leick deck iedhdenedun wed ee 23
No.
In the Supreme Court of the United States
OCTOBER TERM, 1990
LesLie SALT Co. and CARGILL, INC.
Petitioners,
VS.
UNITED STATES, et al.
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Leslie Salt Co. and Cargill, Inc., both Delaware Corporations,
petition this Court to issue a writ of certiorari to review the
decision of the United States Court of Appeals for the Ninth
Circuit in this case.
OPINIVUNS BELOW
The opinion of the Court of Appeals, together with the dissent-
ing opinion of Judge Rymer, is reported at 896 F.2d 354, and is
reprinted in the Appendix hereto, pp. A-1 to A-14.
The opinion of the District Court is reported at 700 F.Supp.
476, and is reprinted in the Appendix hereto, pp. A-15 to A-41.
JURISDICTION
The judgment of the Court of Appeals was entered on February
6, 1990. A timely petition for rehearing was denied on August 27,
1990 (App. A-42 to A-43, infra). The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
2
STATUTORY AND REGULATORY PROVISIONS
INVOLVED
The relevant provisions of the Clean Water Act and of the
implementing Regulations issued by the U.S. Army Corps of
Engineers are reproduced in the Appendix hereto, pp. A-44 to A-
45.
STATEMENT
1. The case arises under the Clean Water Act, enacted in
1972 and amended in 1977. 33 U.S.C. § 1251 et seg.' So far as
relevant to this petition, that statute prohibits the discharge of any
“pollutant” (including dredged or fill material) into “navigable
waters,” except in compliance with a permit issued under the Act.
§ 301(a), 33 US.C. §1311(a); §502(12), 33 U.S.C.
§ 1362(12). Responsibility for granting or denying such permits
“for the discharge of dredged: or fill material into the navigable
waters” is assigned to the Secretary of the Army—effectively, the
Corps of Engineers. § 404(a), 33 U.S.C. § 1344(a). And, finally,
“navigable waters” is later defined as “the waters of the United
States, including the territorial seas.” §502(7), 33 U.S.C.
§ 1362(7).
In turn, the Corps of Engineers has promulgated implementing
regulations which, among other things, purport to delimit the
agency’s geographic jurisdiction by listing the several categories
of aquatic and partially aquatic features that comprise the covered
“waters of the United States.” 33 C.F.R. Part 328. The only such
provision that concerns us here is the inclusion of “other waters,”
33 C.F.R. § 328.3(a)(3)—that is, all waters and wetlands that
are not part of navigable interstate waierways or tidal waters
(§ 328.3(a)(1) & (6)), do not themselves cross state lines
(§ 328.3(a)(2)), and are not tributaries of such waters
(§ 328.3(a)(5)), or adjacent wetlands (§ 328.3(a)(7)). In short,
what is involved are so-called “isolated” waters wholly uncon-
'The claim under Section 10 of the Rivers and Harbors Act, 33
U.S.C. § 403, has apparently fallen away. See p. 6, infra.
3
nected to any past, present or potential artery of interstate
commerce and lying entirely within one state.
Under the regulation, “other waters” are covered only if their
“use, degradation or destruction could affect interstate or foreign
commerce.” Three examples of such potential “effects” are given:
use by interstate travellers for recreational or other purposes;
production of fish or shellfish destined for interstate markets; or
use by industries in interstate commerce. 33 C.F.R. § 328(a) (3).
There is, however, no suggestion that the litigation site has any
such link to “commerce,” the only predicate for jurisdiction over
the acreage still in dispute being its character as habitat for
migratory birds or endangered species. As explained in a moment,
this basis for coverage has never been incorporated in any regula-
tion. It appears simply in the published preface to the 1986
regulations. See 51 Fed.Reg. 41217 (1986).
2. The litigation site is a 153-acre tract of undeveloped land
southeast of San Francisco, once pasture land, whose condition
has been somewhat altered, first by the owners to accommodate
salt-making, and, more recently, by the acts of state and federal
agencies, building roads, a large sewer, and culverts, breaching a
levee on the adjacent wildlife refuge, and destroying a tidegate.
App. A-2 to A-3, infra. One of the new roads has severed the
property into two parcels, one of 143 acres, the other holding 10
acres. Id. at A-2. We are not here concerned with the southern
“corners” or “tips” of the two parcels—comprising less than 9
acres together—which have been determined to be “adjacent
wetlands.” See id. at A-4, A-6 to A-8. In this Court, we challenge
only the ruling below as it affects some 100 acres in Parcel 143,°
> The acres in question are depicted on Exhibit 159, pp. 54 (areas 3
and 4) and 57 (area P), explained at pp. 52-58. The wetland “corners”
comprise approximately 6.6 acres of Parcel 10 and some 2.1 acres of
Parcel 143. Exh. 159, pp. 55, 58.
>The Corps’ claim of jurisdiction extended to 110 acres. E.R. 8.
Subtracting the 9 acres of “corners,” not challenged in this Court, some
101 acres remain. There is no assertion of jurisdiction over the balance
of Parcel 10, so that the 100 acres still in dispute are all within the larger
Parcel 143. See E.R. 14.
4
consisting of former crystallizers and calcium chloride pits once
used in the salt manufacture process. See id. at A-5, A-8.
It is long since admitted that no part of this 100-acre tract
qualifies as “wetlands,” adjacent or otherwise, and it is common
ground that the only water reaching this tract is rainwater, which
creates temporary “ponds” entirely unconnected to any other
waterbody—much less any navigable waterway. See id. at A-6
n.6, A-8 to A-9, A-11 to A-12. The question presented is whether
these seasonally or “ephemerally” ponded acres‘—”isolated”
though they be—are nevertheless subject to regulation by the
U.S. Army Corps of Engineers under the Clean Water Act as
“waters of the United States.” This is the issue reserved by this
Court in United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 124 n.2, 131 n.8 (1985). Here—as typically will be the
case with respect to isolated waters or wetlands—the sole basis for
embracing the site was the theory that its “degradation or de-
struction . . . could affect interstate or foreign commerce” because
of the presence of migratory birds or endangered species. See
App. A-11 to A-12, infra.
3. After a lengthy trial on cross-suits filed by the parties, the
District Court held the Corps of Engineers without jurisdiction
over any part of the property, whether under Section 404 of the
Clean Water Act, or Section 10 of the Rivers and Harbors Act.
App. A-41, infra. In dealing with the approximately 100 acre
crystallizer and pit area still in dispute, the Court considered at
We note that the claim of jurisdiction premised on alleged “tidal”
effect, limited to 5 acres in the same “corners” determined to constitute
adjacent wetlands (see E.R. 9), is mooted by our acquiescence in the
wetlands ruling. See App. A-4 to A-5 n.5, infra.
* Although the court below speaks only of “seasonal” ponding, App.
A-11, infra, the Corps asserted jurisdiction over a much more expansive
area of the crystallizers which the Government itself described as
subject only to “ephemeral” ponding. According to the Government’s
expert witness, some 14 acres, at most, were seasonally ponded (Tr.
1060-1062), and the remaining crystallizer acreage—some 85 acres—
were said to suffer no more than “ephemeral ponding,” a standard
satisfied by a few inches of water in the bottom of plowed furrows
standing for a “matter of hours” after a rainfall. Tr. 1091-1092.
5
length, and rejected on a variety of grounds, the Government’s
then primary wetland claim. Jd. at A-33 to A-40. The Court also
concluded that these acres could not qualify as “other waters” —
as distinguished from wetlands—because the crystallizers and
calcium chloride pits were artificially created and thus did not
satisfy the standard set by the Corps’ own regulations. Jd. at A-32
to A-33. And, as the Court of Appeals acknowledged, id. at A-9,
A-11, the District Court independently rejected the “other wa-
ters” claim for at least most of the site on the ground that “land
does not become a water of the United States just because water
collects, ponds, and stands on land for a few days after a rain.” Jd.
at A-29. See also id. at A-35.° Given these holdings, the Court
found it unnecessary to address the question presented here. Jd. at
A-30 to A-32.
4. The United States appealed, but abandoned its wetland
claim except as to the nine acres of “corners.” See App. A-6 n.6,
injra. Over a partial dissent (id. at A-13), a majority of the Court
of Appeals panel reversed in all respects. As previously noted, we
do not now present any issue with respect to the parcel “corners”
and accordingly need not describe the rulings confined to those 9
acres. See id. at A-6 to A-8. As to the balance of the property, the
appellate court faulted the District Court for reading the Corps’
regulations as not reaching the crystallizers and calcium chloride
pits on account of their “artificial” origin, id. at A-9 to A-11, and
likewise reversed the trial court’s conclusion that the temporary
ponding was insufficient to qualify these acres as covered “‘wa-
ters.” Id. at A-11.°
* Elsewhere in its opinion, the District Court described the crystalliz-
ers as “remain[ing] dry, except when rainwater accumulates during the
winter” (App. A-22, infra), ponding only “temporarily” (ibid.), “in fact
dry most of the year” (id. at A-32), “‘inundated’ only during and for a
short time immediately after winter rains” (id. at A-34), and as an area
where “rain water collect[s] ... for a few days” (id. at A-35).
° It is worth noting that the Court of Appeals’ reference to “standing
water . . . remaining long enough for fish to live in the ponds” (App. A-2
to A-3) is misleading. See Dissent at App. A-13, infra. Small stickle-
back were spotted in a ditch that surrounds the northern calcium
chloride pit and dried remains of such fish were found nearby. Tr. 677-
6
The Court of Appeals dealt with the issue now tendered to this
Court in a few words. Without discussion—or acknowledging the
reservation of the question in Riverside—the Court declared that
the Clean Water Act embraces “any aquatic features within the
reach of the commerce clause power” (App. A-6, infra), and
that, accordingly, “the Corps’ jurisdiction [extends] to local
waters which may provide habitat to migratory birds and endan-
gered species” (id. at A-12). The Court then remanded the case
for “a factual determination of the sufficiency of the property’s
connections to interstate commerce.” Jbid. But, in light of the
Court’s legal ruling and the state of the record, that is a mere
formality. We do not deny that some part of the site satisfies the
Court’s standard;’ our submission is simply that the Clean Water
Act does not authorize the Corps to regulate on any such theory.
Although the Government had appealed the rejection of the
Rivers and Harbors Act claim, the Court of Appeals does not
discuss the point—beyond noting that such a claim was criginally
advanced by the Corps. App. A-4, infra. Presumably, in this one
respect, the appeal failed.
Circuit Judge Rymer dissented as to the larger area of the
crystallizers and calcium chloride pits. App. A-13, infra. She
stressed that seasonal ponding there “creates no hydrological
connection with any other body of water,” and that “there is
nothing in the record to show that water flows directly or indi-
rectly from the crystallizers or pits into another body of water.”
Ibid. On that basis, Judge Rymer concluded that these areas were
not embraced by the Corps’ regulations and found it unnecessary
to reach the issue reserved by this Court in Riverside and
678, 1181-1183. But, given the prevalence of this hearty species in
freshwater, these very limited sightings do not remotely imply a connec-
tion of the site with San Francisco Bay or suggest a generally ponded
status for most of the crystallizer area.
’ To be sure, if this Court were to decline review, we would be free on
remand to litigate how much of the property is “other waters” fre-
quented oy migratory birds or endangered species.
7
presented here. /bid.* Nevertheless, the Judge articulated sub-
stantial doubts concerning the propriety of extending jurisdiction
on the basis of migratory bird use. Jd. at A-13 to A-14 n.1.
REASONS FOR GRANTING THE WRIT
A. The Question Presented Is Of Recurring Importance
In this Court, we are concerned with the jurisdiction asserted
by the Corps of Engineers under the Clean Water Act over
temporarily wet areas whose “waters”—a few inches of ponded
rainwater which accumulates only during the winter rainy season
—concededly are not adjacent to or connected with any navigable
waterbody. Although broader questions involving all “isolated”
waters, or all non-navigable “isolated” waters, are implicated, we
focus on the present situation in which the waters are not only
isolated, but also undeniably non-navigable, and the sole premise
for coverage is the actual or possible use of the site as habitat by
migratory birds or endangered species. And, finally, while noting
the conflict of decisions with respect to the procedural flaw in the
promulgation of the relevant “regulation,” we press the substan-
tive issue whether, in the Clean Water Act, Congress intended to
regulate (or to authorize federal agencies to regulate) land of the
character involved here on any such unconventional theory. This
is the question pointedly left unresolved by this Court in United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 124 n. 2,
131 n. 8 (1985).
* On its face, Judge Rymer’s opinion would seem to require reaching
the issue left open in Riverside, since the point of the “other waters”
regulation is to embrace isolated waters having no connection to naviga-
ble interstate waterways. Perhaps the dissent should be read as sharing
the District Court’s view that the degree and duration of wetness of the
site is inadequate to qualify it as “other waters,” in the first place.
* The Court was there referring to one species of “other waters,” so
called “isolated wetlands”, whereas here the Government has now
abandoned the claim that the areas in question are wetlands, asserting
instead that they are isolated “other waters” of unspecified character.
The same regulation is implicated and the issue with respect to isolated
wetlands typically presents the same ingredients as our case, a non-
ia
1. The ruling we complain of has very far-reaching conse-
quences. Narrowly defined as it seems, the question presented
affects by far the largest part of ihe Corps’ claimed jurisdiction
under the “isolated” waters regulation. Indeed, there are rela-
tively few navigable intrastate waterbodies that are entirely un-
connected with an interstate waterway, and presumably there are
not many wholly intrastate waters which, although non-navigaole,
are used by interstate travellers or interstate industries or produce
fish or shellfish destined for interstate markets. See 33 C.F.R.
§ 328.3(a) (3). Our setting, on the other hand, is all too common.
Statistics are hardly necessary to demonstrate the prevalence of
sometimes wet sites that attract migratory birds, albeit they are
wholly unconnected with any navigable waterway and are not
themselves remotely navigable. The relevant birds, we should
stress, are not necessarily water birds, as was the case here for
much of the property, they may be common upland birds, such as
blackbirds, who come to drink or simply to rest. It is safe to say
that embracing such areas within the Clean Water Act subjects
several tens of millions of additional acres to regulation by the
Corps of Engineers and at least potentially withdraws that quan-
tity of land from development."®
navigable site whose only claimed link with interstate commerce is the
sometime presence of migratory birds.
'° For present purposes, we assume that some part of the property in
question qualifies as an “aquatic” site within the Corps’ “other waters”
regulation, even though it is no longer claimed that the crystallizers and
calcium chloride pits are wetlands. But the typical case presenting the
question we tender here presumably will involve isolated wetlands. It has
been estimated that there are some 90 millon acres of “palustrine”
freshwater wetlands within the continental United States, not including
Alaska. See, Frayer, et al., Status and Trends of Wetlands and Deepwa-
ter Habitats in the Conterminous United States, 1950's to 1970's, 3, 20-
21, 22-23 (Apr. 1983); U.S. Fish & Wildlife Service, Wetlands of the
United States: Current Status and Recent Trends vii, 5, 9, 28, 29 (Mar.
1984). Unlike “marine”, “estuarine,” “lacustrine” and “riverine” wet-
lands, palustrine wetlands are not typically associated with any “deepwa-
ter habitat.” Frayer, supra, at 12-13; USFWS, Current Status, etc.,
supra, at 9-11. Thus, a large part of the 90 million acres is isolated from
any navigable waterway. To these wetland acres in the lower 48 must be
9
2. What is more, once the statute is held to authorize regula-
tion of non-navigable isolated sites, it is very difficult to hold the
agencies to any strict line distinguishing between land and water.
This case illustrates the point, involving as it does an assertion of
jurisdiction over areas no longer claimed to qualify as wetlands,
albeit wetlands are supposedly the driest of the spectrum of
“waters of the United States.” For the most part, the land in
dispute is only subject to what is described by the Government
itself as “ephemeral ponding,” a standard satisfied by the pres-
ence of standing rainwater a few inches deep in the bottom of the
furrows of a plowed field for no more than a few hours at a time.
Obviously enough, such over-zealous implementation of the “‘iso-
lated” waters provision may escape judicial review, given the
difficulty of faulting an agency’s reading of its own regulations and
the expenses and delays incurred in even successful litigation.
Thus, an extension of jurisdiction like that seen here may well
become the norm if the decision below remains undisturbed. In
that event, the geographical scope of the Clean Water Act
suddenly will have been expanded to embrace several times the
acreage regulated for the first dozen years after its passage—all
without any relevant amendment of the statute.
Of course, the Court ought not be asked to decide whether this
result is or is not desirable. Our submission is simply that
Executive Department agencies cannot be left free to accomplish
such a radical transformation of private property into public land
—with substantial potential exposure to the national treasury as a
result of “takings” claims—unless Congress itself has chosen that
course, or at least has authorized the administrators to embark
upon it. We ask this Court’s intervention to end the progressive
expansion of a regulatory program that proceeds on the very
unlikely premise that, without remotely saying so, Congress
granted the implementing agencies uncabined discretion to ex-
added substantial areas of isolated wetlands in Alaska (presumably an
important share of Alaska’s estimated total of 200 million acres,
USFWS, Current Status, etc., supra, at 28), and some in Hawaii, as well
as isolated non-navigable “rivers, streams, ... mudflats, sandflats, .. .
sloughs, prairie potholes, [and] wet meadows” elsewhere that do not
constitute wetlands but attract migratory birds or endangered species.
10
tend their jurisdiction as far as evolving constitutional doctrine
would authorize Congress itself to reach. But see n.20, infra.
3. In the present context, it should be stressed, the prospects
of obtaining a permit under Section 404 are virtually nil. Indeed,
the EPA Guidelines that presumably would be invoked foreclose
discharges into covered waters if there is a “practicable alterna-
tive” (40 C.F.R. § 230.10(a)), and the existence of such an
alternative is “presumed to be available, unless clearly demon-
strated otherwise,” where a “special aquatic site” (see 40 C.F.R.
§§ 230.40-230.45) is involved and the development project is not
“water dependent.” 40 C.F.R. § 230.10(a) (3). In practice, these
rules, together with other Guidelines (see, e.g. 40 C.F.R.
§ 230.10(c)), predictably will defeat any permit application with
respect to lands like those in suit.
It may be said that petitioner and like-situated landowners have
an adequate remedy under the Tucker Act (28 U.S.C. § 1491)—
as the court below suggested. App. A-7 to A-8, infra. To be sure,
the availability of just compensation for a “taking” obviates any
claim that the Clean Water Act works an unconstitutional taking
of property. Riverside, 474 U.S. at 126-129 and nn.4 & 6. But this
is no answer to our submission that Congress did not authorize
regulation of lands like those involved here. If our point is sound,
the Corps simply has no jurisdiction to grant or withhold a permit
and no taking can occur.
Needless to say, the practical consequences of invalidating the
Corps’ extension of regulation to a site are very different from the
result if only “taking” damages are available. Even for the
landowner who is immediately intending to develop his property
for subsequent sale, substantial delay and expense is involved
when he is relegated to the Claims Court for money compensa-
tion. But far worse is the present situation of all those owners who
may wish themselves to use the erroneously regulated site, or who
may wish to sell it unimproved. In the first hypothesis, the owner,
wrongly barred from enjoying his land, ought not be compelled to
accept money instead. And, in the other case, the owner may weil
be without remedy, since he is not seeking a permit and, on the
other hand, will find it difficult to sell what is effectively a lawsuit.
1]
B. The Decision Below Is Plainly Erroneous
Notwithstanding the casual assumption to the contrary in-
dulged by the majority below, we deem it plain that the Clean
Water Act reasonably cannot be read to reach non-navigable
isolated waters whose only connection with interstate commerce
is the presence of protected wildlife. This is not to say that
Congress has been indifferent to the fate of migratory birds or
endangered species. On the contrary, special protective legislation
has been enacted, typically providing for the preservation of
habitat by authorizing the purchase of relevant sites or appropri-
ate easements. See North Dakota v. United States, 460 U.S. 300
(1983).'' But that simply was not the focus of the Clean Water
Act, whose mission, as the statutory title implies, was to attempt
to restore the purity of the national waters, not to econ
interstate wildfowl or endangered species.'”
'' Statutes enacted to this end include: Migratory Bird Treaty Act of
July 3, 1918, 46 Stat. 755, ch. 128, 16 U.S.C. § 703 et seg.; Migratory
Bird Conservation Act of Feb. 18, 1929, 45 Stat. 1222, ch. 257, 16
U.S.C. § 715 et seq.; Bear River Migratory Bird Refuge Act of Apr. 23,
1928, 45 Stat. 448, ch. 413, 16 U.S.C. § 690 et seqg.; Cheyenne Bottoms
Migratory Bird Refuge Act cf June 12, 1930, 46 Stat. 579, ch. 469, 16
U.S.C. § 691 et seq.; Migratory Bird Hunting Stamp Act of Mar. 16,
1934, 48 Stat. 451, ch. 71, 16 U.S.C. § 718, et seqg.; Migratory Waterfowl
and Other Wildlife Refuge in California Act of May 18, 1948, 62 Stat.
238, ch. 303, 16 U.S.C. § 695 et seqg.; Migratory Bird Hunting Stamp
Act Amendments of Aug. 1, 1958, Pub.L. 85-585, 72 Stat. 486, 16
U.S.C. § 718 (b) & (c); Wetlands Act of Oct. 4, 1961, Pub. L. 87-383,
75 Stat. 813, 16 U.S.C. § 715k-3 et seg.; Endangered Species Act of
Dec. 28, 1973, Pub.L. 93-205, 87 Stat. 884, 16 U.S.C. § 1531 ef seq.;
Wetlands Loan Extension Act of February 17, 1976, Pub.L. 94-215, 90
Stai. 189, 16 U.S.C. § 715k-3; and Emergency Wetlands Resources Act
of Nov. 10, 1986, Pub.L. 99-645, 100 Stat. 3582, 16 U.S.C. § 3901 er
seq.
'? It is true that the impact on wildlife and endangered species must
be taken into account by the Corps of Engineers and EPA in deciding
whether to grant a permit and where a discharge shall be allowed.
Sections 404(b), (c) & (e), 33 U.S.C. § 1344(b), (c) & (c). See also,
e.g., 33 C.F.R. §§ 320.4(a), (b) (2) (i), (b) (6) (j) (4), 330.5(b) (3); 40
C.F.R. §§ 230.30, 230.32. But it does not follow that such considera-
12
This limited objective is reflected in the activities regulated by
the Clean Water Act. The discharge of “pollutants” (including
dredged and fill materials) into covered waters is prohibited. But,
as the Corps itself acknowledges, the statute does not attempt to
preserve waters or wetlands against alteration or even total de-
struction by any other means, such as excavation, draining,
clearing, flooding or diversion of water source. See U.S. Congress
Office of Technology Assessment, Wetlands, Their Use and
Regulation 10, 11, 69-70, 149, 167-170, 175-176 (1984). Argua-
bly, the Corps’ inability to prevent the loss of substantial wetland
acreage through presently unregulated activities suggests new
legislation, State or federal. See, e.g., National Wetlands Policy
Forum, Protecting America’s Wetlands: An Action Agenda
(1988); OTA Report, supra, at 15-16. But, as it stands today, the
Clean Water Act does not purport to be a wildlife protection
statute or a wetland preservation measure.
Stretching the law beyond its original purpose is all the more
questionable when isolated sites are sought to be encompassed. In
the case of wetlands and other marginal areas adjacent to naviga-
ble waters or their tributaries, it may be assumed that Congress
authorized their regulation on the ground that pollution or de-
struction of these “edges” would adversely affect significant
waterbodies. No such water quality concerns are implicated,
however, when we move further inland to unconnected isolated
waters, especially very shallow seasonal ponds. The filling or
degradation of such sites may be a blow to wildlife, but it has no
impact on the purity of the national water system. indeed, the
Corps’ assertion of jurisdiction over isolated tracts of this kind in
no way depends upon any such effect, and there is no claim here
that development of the property in suit would affect water quality
elsewhere, directly or indirectly.
At the threshold, then, grave doubts arise whether the “isolated
waters” provision even arguably implements the Clean Water
Act, or is a well-meaning, but illegitimate, attempt to preserve
inland aquatic sites—more or less seasonally wet—in the service
of some wholly separate objective. This first impression is not
dissipated but, rather, reinforced when we examine the words of
the law more closely and consult its legislative history.
13
1. The statutory text itself rejects the notion that isolated non-
navigable waters are meant to be reached. Section 404 expressly
regulates the discharge of dredged or fill material into “navigable
waters” alone. 33 U.S.C. § 1344(a). To be sure, that expression is
later defined to mean “the waters of the United States”
(§ 502(7), 33 U.S.C. § 1362(7)), and this Court has commented
that this “makes it clear that the term ‘navigable’ as used in the
Act is of limited import.” Riverside, 474 U.S. at 133. But—as the
Court impliedly recognizes—this is far from altogether discarding
the notion of navigability as an anchor for the legislation.
In fact, the expression “waters of the United States,” or a like
term, had been used in legislation for most of a century to denote
waters which, if not themselves navigable, were at least immedi-
ately connected to waterways useful for interstate or foreign
commercial navigation.'’ And, less than a decade before our 1972
enactment, this Court had accepted as self-evident that the
statutory expression “streams ‘over which Congress has jurisdic-
tion under its authority to regulate commerce’” reaches no
further than “tributaries of river systems necessitating supervisory
power to preserve or improve downstream navigability or water
commerce generally.” Federal Power Commission v. Union Elec-
tric Co., 381 U.S. 90, 97 (1965).
The somewhat ambiguous definition of navigable waters no
doubt authorizes those who administer the law to push back the
boundaries of covered navigable waterways to include their non-
navigable portions, their non-navigable tributaries, even their
adjacent non-navigable wetlands. It does not allow them to ignore
that the definition is of navigable waters, a term which simply
cannot be stretched to embrace waters and wetlands that have no
connection to any navigable waterway.
If Congress had meant to throw overboard the concept of
navigation as the constitutional premise for the legislation, it knew
the formula. As long ago as the Federal Power Act of 1920,
'> See, e.g., Rivers and Harbors Act of 1894, § 5, 33 U.S.C. § 499; Act
of Feb. 19, 1895, § 2, 33 U.S.C. § 151; Rivers and Harbors Act of 1899,
§ 10, 33 U.S.C. § 403; Act of Sept. 15, 1922, 33 U.S.C. § 472; Act of
June 22, 1936, § 1, 33 U.S.C. § 701 (a).
14
statutes had been written to reach activities “affecting” interstate
or foreign commerce. See Federal Power Act, § 23(b), 16 U.S.C.
§ 817, construed in Federal Power Commission v. Union Electric
Co., supra, 381 U.S. at 93-99. Here, instead of asserting jurisdic-
tion over all waters whose degradation would affect interstate
commerce, Congress chose to limit itself to regulating discharges
“in” “navigable waters,” however generously defined. This is not
a difference we can overlook. Cf. Polish National Alliance v.
NLRB, 322 U.S. 643, 647 (1944); U.S. v. Lexington Mill & L.
Co., 232 U.S. 399, 410 (1914).
There is, of course, no reason to be surprised that only “fed-
eral” waters and their adjuncts are apparently embraced. It was
natural enough for federal legislation to concern itself with inter-
state navigable waterways, leaving local waters to State regula-
tion. Moreover, it may have occurred to some Members that
straying far beyond the sway of the federal navigational servitude
would expose the Government to claims under the Just Compen-
sation Clause.'* Presumably, Congress was aware that, constitu-
tionally, it could reach further—albeit at potential cost—but here,
'* Perhaps Congress was ready to exercise federal power to the
boundary within which no substantial “taking” costs would be incurred,
but no further. It must be remembered that the Clean Water Act was
passed in 1972, before this Court declared that the navigational servi-
tude creates no blanket exception to the Takings Clause. Kaiser Aetna v.
United States, 444 U.S. 164, 172 (1979). The general understanding
then was that an exercise of the servitude up to the high water line of
navigable waterbodies involved no taking of private property. United
States v. Rands, 389 U.S. 121, 122-123 (1967); United States v. Kansas
City Life Ins. Co., 339 U.S. 799, 808 (1950); Kaiser Aetna, supra, 444
U.S. at 184-190 (Blackmun, J., dissenting). And, indeed, with only very
rare exceptions, this seems to be law again. See United States v.
Cherokee Nation of Okla., 480 U.S. 700, 703-707 (1987).
It is worth stressing that the present suggestion is not the argument
rejected by the Court in Riverside, supra, 474 U.S. at 126-129. There
the Court of Appeals had given the Clean Water Act a narrow reading to
avoid the supposed problem of unconstitutional “takings,” which was
answered, inter alia, by presuming that just compensation would be
available under the Tucker Act if a taking occurred. 474 U.S. at 127-
129. We here make the different point that cost and comity, rather than
15
as elsewhere, there was no obligation to go to the constitutional
limit. Cf. Chemehuevi Tribe of Indians v. Federal Power Com-
mission, 420 U.S. 395, 400 (1975).
The fact is that the Clean Water Act on its face deals only with
the waters whose poilution is federal business because they are
closely related to interstate commerce. As in earlier legislation,'*
adjacent waters, including non-navigable tributaries and abutting
wetlands, are included. But there is no ground for reading “waters
of the United States” to encompass non-navig2vie waters or
wetlands wholly isolated from interstate waterbodies, whose dete-
rioration would not affect the federal water system.
2. Far from contradicting the indications of the text, the
legislative history of the Clean Water Act fully confirms that
navigability was the touchstone of coverage. It is true enough that
Congress intended to define the covered waters “broadly,” going
beyond the “classical” or “traditional” tests followed under earlier
water pollution control legislation. E.g., 118 Cong. Rec. 33757
(1972). But this only meant including the non-navigable “por-
tions” and “tributaries” of actually or potentially navigable water-
courses—as the repeated invocation of cases so holding indicates.
E.g., 118 Cong. Rec. 33756-33757 (statement of Rep. Dingell);
118 Cong. Rec. 33699 (statement of Senator Muskie).'® From
first to last, the preoccupation was with navigability and the
constitutional constraints, may have guided Congress to reach less far
than it might have.
'S E.g., Act of June 29, 1888, § 1, 33 U.S.C. § 441 (“tributary waters”
of New York Harbor); Rivers and Harbors Act of 1899, § 13, 33 U.S.C.
§ 407 (“any tributary of any navigable water”); Pub. L. 85-500, § i104,
33 U.S.C. §610 (“navigable waters, tributary streams, connecting
channels, and other allied waters.”) See also United States v. Rio
Grande Dam & Irrigation Co., 174 U.S. 690, 707-710 (1899).
'® The decisions of this Court referred to in the legislative history
which were apparently intended to reflect the limits of the Clean Water
Act are Economy Light & Power Co. v. United States, 256 U.S. 113,
121-123 (1921); United States v. Appalachian Electric f »wer Co., 311
U.S. 377, 404-410, 426-427 (1940); and Oklahoma ex rel. Phillips v.
Guy F. Atkinson Co., 313 U.S. 508, 523-525 (1941).
16
ultimate refusal meaningfully to define the term exhibits no more
than a fear that any words used might be read too narrowly.
It is quite unreal to suggest that, without saying so, those who
struggled so long over the way to define navigability meant to cast
aside the concept and reach any waters which could be linked
with commerce in wholly different ways. The court below mis-
reads the legislative history of the Clean Water Act in concluding
that Congress intended to regulate as far as the Commerce
Clause would permit. What was in fact said was something very
different: that the phrase “navigable waters” was to be given “the
broadest possible constitutional interpretation.” S. Conf. Rep.
1236, 92nd Cong. 2d Sess. 144 (1972); 118 Cong. Rec. 33699
(1972) (statement of Sen. Muskie); see also, Leslie Salt Co. v.
Froehlke, 578 F.2d 742, 755 (9th Cir. 1978).
No doubt Congress meant to embrace all waters that could be
reached under its Commerce Clause power to regulate water
commerce, i.e., navigable waters, actual and potential, together
with their “adjuncts”. But there is not the slightest hint that
Congress meant to invoke other Commerce Clause powers—
unrelated to water commerce—to regulate isolated non-navigable
waters. Indeed, it is significant that, in Riverside, this Court
(unlike the court below) eschewed the easy path to its resuit—
that Congress meant to go to the constitutional limit—and,
instead, parsed at some length the legislative history of both the
1972 statute and the 1977 amendments in arriving at the expressly
limited conclusion that wetlands immediately adjacent to a fully
navigable waterway were within the ambit of section 404. See 474
U.S. at 124, 130-132, 135, 136-138.
At the least, it is obvie’ . that those who wrote the Clean Water
Act never contemplat a that it could be stretched to include
isolated waters on the basis of the presence of migratory birds or
endangered species. In all the many thousands of pages of
legislative history leading to the enactment of the law in 1972, and
its revision in 1977, no one, whether legislator, administrator,
State official, environmentalist or other witness, ever suggested
such a ground for coverage. (In fact, the idea was not born until
Congressional hearings in 1985). Yet, it was hardly a secret that
migratory birds used isolated waters and wetlands, perhaps most
17
notably the prairie potholes of the Plains States. See North
Dakota v. United States, supra, and the legislation there
discussed.
Nor is this a trivial matter that might have passed in silence.
The new theory of federal jurisdiction is adventurous, to say the
least.'’ It surely would not have been accepted by all Members,
without debate, as constitutionally legitimate, or as according
appropriate deference to State claims to regulate their own local
waters. And, as we have seen, the practical consequences of
predicating federal regulation on such a basis are far too large to
have provoked no comment.
In sum, the legislative history of the Clean Water Act refutes
the claim that isolated non-navigable waters—especially wet
areas linked to other states only by migratory species—were ever
within the ambit of the legislation. It remains only to show that
the contrary result below cannot be justified by resort to the rule
of deference to administrative construction.
3. We have sought to show that there is no room for reading
into the Clean Water Act a license to regulate non-navigable
isolated waters frequented by migratory birds or endangered
'’ Accepting that the national dimension of the problem of identifying
and protecting endangered species and migratory birds justifies federal
legislation, it does not necessarily follow that the Commerce Clause
authorizes the regulation of waters that are by definition localized and
unconnected to any interstate system, merely because they harbor
species whose preservation is deemed a national concern. Indeed, it is
noteworthy that the originator of this suggested extension of jurisdiction
did not claim that the presence of endangered species itself “affected”
commerce, but rather that the species might provoke the “interstate
movement of persons, such as scientists, who come...to study and
observe them.” Oversight Hearings on Section 404 of the Clean Water
Act: Hearings Before the Subcomm. on Environmental Pollution of the
Senate Comm. on Environment and Public Works, 99th Cong., Ist Sess.
189-190 (1985) (Statement of Richard E. Sanderson, Acting Assistant
Administrator, EPA) (hereinafter “/985 Oversight Hearings”). But
there is no requirement of human movement in the “advice” as
published or in the decision below. Nor is there any evidence in this case
that out-of-state travellers of any kind were enticed to the litigation site.
18
species. Such a radical extension of coverage, we submit, is well
beyond any reasonable construction of the statute, and, accord-
ingly, cannot be vindicated simply by invoking the deference
normally due the administrators’ reading of the statute.'* As it
happens, moreover, our view is confirmed by the failure of the
implementing agencies—including the usually avant-garde EPA
—to “discover” the new basis of jurisdiction until more than
thirteen years after the law was enacted. This circumstance makes
it especially difficult to indulge any presumption in favor of the
administrative construction,'” and indeed, strongly suggests, not
legitimate interpretation, but creative law-making by an agency
with no such delegated authority.”
As has been said, we are not dealing with a relatively inconse-
quential detail: predicating Clean Water Act jurisdiction over
isolated waters on the presence of migratory birds or endangered
species brings tens of millions of acres under regulation for the
first time, at least potentially banning all residential, agricuitural,
commercial or industrial use of the sites. Nor is this a matter that
can have escaped the attention not only of the legislators, but also
of the administrators for so long. The existence of such wet
'® Dole v. United Steelworkers of America, 108 L.Ed.2d 23, 38
(1990); Sullivan v. Zebley, 107 L.Ed.2d 967, 978 (1990); Bowen v.
Georgetown University Hospital, 488 U.S. 204, 207, 212-213 (1988);
ETSI Pipeline Project v. Missouri, 484 U.S. 495, 516-517 (1988); see
Chevron USA v. NRDC, 467 U.S. 837, 842-844 (1984).
'? Bowen v. Georgetown University Hospital, 488 U.S. at 211-213. See
also Bowen v. American Hospital Ass’n, 476 U.S. 610, 646 n.34 (1986);
Immigration & Naturalization Service v. Cardoza-Fonseca, 480 U.S.
421, 446 n.30 (1987); United States v. Leslie Salt Co., 350 U.S. 383, 396
(1956).
° In its appellate briefs in the Tabb Lakes case, discussed in a
moment, the United States was at pains to assert—correctly, in our view
—that the Clean Water Act grants no quasi-legislative power to the
Corps of Engineers which would permit the agency, through “substan-
tive” regulations, to expand the statutory coverage. See Brief of the
United States Appellant 21-23, and Reply Brief for the United States 2,
8-10, in No. 89-2905, 4th Cir., Tabb Lakes, Ltd., v. United States (filed
April 1989).
19
“islands” —especially prairie potholes and other isolated fresh-
water wetlands—and their importance to migratory birds, was
well-known, and, as noted, had been the focus of special protec-
tive legislation. In this setting, then, it is impossible to pretend
that the decision of 1985 to reach these areas under Section 404
of the Clean Water Act was merely the belated revelation of a
previously unrecognized truth that had always been a brooding
omnipresence in the sky.
Also instructive is how the decision came to be made. The
Corps of Engineers itself had initially read the Clean Water Act
as embracing no more than those navigable waters and their
adjuncts that were subject to the federal navigational servitude.”!
Only under compulsion of a court decree in NRDC v. Callaway,
392 F.Supp. 685 (D.D.C. 1975), did the Corps rewrite its
regulations to reach any isolated waters. See 1975 Regulations, 40
Fed. Reg. 31320 et seg. The new regulations barely survived
Congressional scrutiny. See Riverside, 474 U.S. at 135-137. But,
at all events, there was as yet no suggestion that bird use or the
presence of endangered species alone would trigger “isolated
waters” jurisdiction. Even EPA had made no such claim.
The novel notion underlying the decision below was born
during hearings in 1985 before a Senate Subcommittee, where
EPA, followed by the Corps, under obvious pressure, agreed to
make the jump. See 1985 Oversight Hearings at 169-170, 189-
190, 212. This is not the hallmark of a change of position that
merits deference because it results from the “well-considered”
judgment of an expert agency, carefully rethinking the import of
the statute during “‘a detailed and comprehensive process,” and
altering its view “based on its ‘expertise and in light of [its]
experience in administering the contested provision.’ ’”’ Compare
Robertson v. Methow Valley Citizens Council, 104 L.Ed.2d 351,
*! See Development of New Regulations by the Corps of Engineers,
Implementing section 404 of the Federal Water Pollution Control Act
Concerning Permits for Disposal of Dredge or Fill Material: Hearings
Before the Subcomm. on Water Resources of the House Comm. on
Public Works and Transportation, 94th Cong., Ist Sess. 29 (1975)
(hereinafter “/975 House Hearings’’). See also id. at 5, 6, 34.
20
373-374 (1989); Andrus v. Sierra Club, 442 U.S. 347, 358
(1979).
The problem is compounded by the “back-door’” procedure |
followed by EPA and the Corps of Engineers in effectuating the
new rule. The proposition that the presence of migratory birds or
endangered species henceforth would suffice to bring non-naviga-
ble isolated waters or wetlands within the Clean Water Act was
not announced as a proposed new regulation or an amendment to
existing regulations, but was treated as merely a further illustra-
tion of the kind of interstate commerce link that was required
under the old “isolated waters” regulation. The Corps first pur-
ported to apply the new standard by an unpublished “Memoran-
dum” issued by the national headquarters to the several district
offices in November 1985, and this was followed by a comment
prefacing the issuance of new regulations in November 1986,
advising that the “EPA has clarified” that the requisite link with
interstate commerce may also be satisfied by showing that iso-
lated waters “are or would be” used as habitat by migratory birds
or endangered species. See 51 Fed. Reg. 41217 (1986). Signifi-
cantly, however, no advance notice was given and neither EPA
nor the Corps has incorporated the additional “examples” in the
body of the regulations defining “other waters.” See 33 C.F.R.
§ 328.3(a)(3); 40 C.F.R. § 230.3(s) (3).
It is well settled that such an attempt to extend jurisdiction
without affording affected property owners and the wider public
an opportunity to comment beforehand violates the Administra-
tive Procedure Act, 5 U.S.C. § 553, unless the “advice” properly
can be described as a mere “interpretive rule” or a “general
statement of policy.” 5 U.S.C. § 553(b)(3)(A). That was the
issue fought out in Tabb Lakes, Lid. v. United States, 715 F.Supp.
726 (E.D. Va. 1988), in which the Corps asserted jurisdiction
over some 38 acres of isolated waters and wetlands apparently on
the sole basis that migratory birds made their habitat there. The
court held for the landowner, concluding that the new rule was
“substantive” and therefore invalid as having been promulgated
21
without the required notice and opportunity for comment.” Al-
though that decision had been affirmed in all respects by the
Fourth Circuit Court of Appeals, 885 F.2d 866 (1989) (Table),
20 ELR 20008, the court below chose to ignore the ruling,
thereby creating a square conflict. What is more, the United
States determined not to seek review of Tabb Lakes in this Court,
with the consequence that, in the Fourth Circuit, the Corps does
not assert Clean Water Act jurisdiction in a situation like that
presented here.”? See App. E, infra pp. A-46 to A-49.%4
? The court in Tabb Lakes was concerned only with an immediately
effective internal “Memorandum” or “Guidance Letter” issued in No-
vember 1985, supplemented in February 1986, rather than the prefatory
commentary to revised regulations published in the Federal Register on
November 13, 1986. But this can make no difference, since no greater
opportunity for comment before effectiveness was afforded in the latter
instance. Indeed, the new extension of jurisdiction was effective in
November 1985, and the public announcement of that occurrence a year
later cannot cure the fatal procedural defect.
>The Government may acquiesce in an adverse decision in one
judicial District or Circuit without suffering the penalty of estoppel if it
later decides to challenge a like ruling elsewhere in favor of a different
party. United States v. Mendoza, 464 U.S. 154 (1984). But, needless to
say, this special privilege does not prejudice the right of a private litigant
adversely affected by the inconsistent stance of the United States to
petition for certiorari. Nor does the Government’s willingness to admin-
ister a national statute differently in some States eliminate the desirabil-
ity of a uniform interpretation.
“The Joint Memorandum of EPA and the Corps of Engineers
reproduced in the Appendix hereto recites that the problem will be
resolved “as soon as possible” by “an APA rulemaking process.” | 2,
infra p. A-48. But, to date, no notice of such rulemaking has been
issued, notwithstanding that the Fourth Circuit’s decision in Tabb Lakes
occurred more than a year ago. It is perhaps not unreasonable to surmise
that the relevant agencies are reluctant to open a debate about the
legitimacy of extending the Clean Water Act to reach non-navigable
isolated waters whose only connection to interstate commerce is the
transitory presence of migratory birds—and that this reluctance may
persist indefinitely, absent this Court’s intervention.
22
Equally important for our purposes, however, are the “grave
doubts” voiced by the Tabb Lakes court as to the substantive
validity of the attempted jurisdictional expansion, even if properly
promulgated. 715 F.Supp. at 729, district court opinion adopted,
20 ELR at 20009. We note that a Judge of the Sixth Circuit has
also questioned the propriety of extending coverage on this basis.
See United States v. Larkins, 852 F.2d 189, 193-194 (1988),
(Merritt J., concurring). And, of course, the dissenting Judge
here has expressed the same reservations. App. A-14, infra.
C. The Issue Is Ripe For Resolution By The Court
The present case, we suggest, affords an appropriate vehicle to
answer the important question left open in Riverside. The issue
has divided the panel below and has provoked concerned com-
ments elsewhere; it urgently calls for definitive resolution here.
To be sure, the decision below is, strictly speaking, interlocu-
tory and, although jurisdiction unquestionably exists, the Court
might be inclined to await a final judgment, as a discretionary
matter. But, in this instance, the limited remand proceedings
cannot eliminate or change the issue presented to this Court. It is
common ground that some part of the litigation site seasonally
ponds rainwater and is frequented by migratory birds. Accord-
ingly, the question whether this is a proper basis for regulation
under the Clean Water Act will remain no matter the exact
delimitation of the affected area. On the other hand, if we are
correct, this Court’s disposition will entirely avoid the wasteful
expenditure of time and money—including judicial time—other-
wise consumed in remand proceedings. And, of course, a substan-
tial delay in the final resolution of the question will impose a
heavy burden on many landowners throughout the country.
We need hardly add that this is not a case like the Regional
Rail Reorganization Act Cases, 419 U.S. 102 (1974), in which
the availability of a Tucker Act remedy in another forum ren-
dered moot the question there tendered to this Court, or like
Williamson County Regional Planning Comm'n v. Hamilton
Bank, 473 U.S. 172 (1985), in which the failure to exhaust
administrative avenues of relief made premature any considera-
23
tion of a taking claim. The issue we present is one of statutory
authority, which must be decided before any “taking” question
arises. Indeed, our case is like Riverside, where the Court’s
conclusion that just compensation was due if a taking had
occurred avoided the constitutional claim, but not the statutory
submission, which was considered and decided.
In the circumstances, we submit the enormous consequences of
the present ruling justify the plea for this Court’s intervention
now. Cf. United States v. General Motors Corp., 323 U.S. 373,
377 (1945); Gillespie v. United States Steel Corp., 379 U.S. 148,
153-154 (1964), and cases there cited. See also, 17 Wright,
Miller & Cooper, Federal Practice and Procedure § 4036 at 27-
33, and cases cited in n.57 (2d ed. 1988.)
CONCLUSION
For the reasons stated, the judgment of the Court of Appeals
should be reversed so far as it vacates the decision of the District
Court declaring that the United States Army Corps of Engineers
has no jurisdiction under the Clean Water Act or the Rivers and
Harbors Act over any portion of the property in suit other than
the southern tips of each parcel.
Respectfully submitted,
Louis F. CLAIBORNE
EDGAR B. WASHBURN
WASHBURN, BRISCOE & MCCARTHY
A Professional Corporation
Attorneys for Petitioners
NOVEMBER 1990
A-1l
Appendix A
United States Court of Appeals
For The Ninth Circuit
Leslie Salt Co., a Delaware corporation,
Plaintiff-Appellee,
v.
United States of America, et al.,
Defendants,
and
Save San Francisco Bay Association,
a non-profit California corporation;
National Audubon Society,
a non-profit New York corporation,
Defendant-Intervenors-Appellants.
CA No. 89-15244
DC Nos.:
CV-85-8615-CAL
CV-86-4187-CAL
United States of America,
Plaintiff-Appellant,
v.
Leslie Salt Co., a Delaware corporation; and
Cargill, Inc., a Delaware corporation,
Defendants-Appellees.
CA No. 89-15337
DC Nos.:
CV-85-8615-CAL
CV-86-4187-CAL
Appeal from the United States District Court
for the Northern District of California
Charles A. Legge, District Judge, presiding
Argued and Submitted November 16, 1989
San Francisco, California
Filed: February 6, 1990
OPINION
Before: Farris, Pregerson, anc Rymer, Circuit Judges.
A-2
Farris, Circuit Judge:
This is an appeal from a district court decision denying the
Army Corps of Engineers jurisdiction under the Clean Water Act,
33 U.S.C. § 1251 et. seq., over a parcel of land near the San
Francisco Bay. The Corps had sought to require the landowner to
obtain a permit before draining and filling the land, which over
many years had acquired some aquatic characteristics. The dis-
trict court found that because these conditions were artificial and
were in part caused by the government, the Corps lacked jurisdic-
tion. We reverse and remand.
BACKGROUND
This dispute revolves around a 153 acre tract of undeveluped
land south of San Francisco, called the Newark Coyote Property,
owned by Leslie Salt. A road separates the property into two
parcels, one of 143 acres (“parcel 143’) and one of 10 acres
(“parcel 10”). The property abuts the San Francisco National
Wildlife Refuge and lies approximately one quarter mile from the
Newark Slough, a tidal arm of the San Francisco Bay.
The present condition of the property, or rather its condition in
late 1985 through 1986 when the Corps claimed jurisdiction, is
the result of many artificial changes to the property over the last
100 years. Originally the property was pastureland. The first
change occurred early in this century, when Leslie’s predecessors
in interest constructed facilities for the manufacture of salt. They
excavated pits on the eastern one-third of parcel 143 for deposit-
ing calcium chloride, and created large, shallow, water-tight
basins on the western two-thirds for crystallizing salt. Salt produc-
tion on the property effectively stopped in 1959. The calcium
chloride pits and the crystallizers remained however, and each
year they temporarily filled with water during the winter rainy
season.' The extent of ponding is limited, but standing water did
form on the property and remain long enough for fish to live in the
' The San Francisco Bay area has a Mediterranean climate, in which
rain falls primarily in the winter and spring, followed by a long dry
season.
I acaetenanaeenaanieentl
A-3
ponds. Plant life, which had been nonexistent due to the high
salinity and compaction of the soil, formed in the crystallizers
after Leslie plowed the property in 1983 to combat a dust
problem.
The property was also substantially affected by construction of
a sewer line and public roads on and around the property. This
construction created ditches, road beds, and most importantly,
culverts which hydrologically connected the property to the New-
ark Slough. Caltrans, the state highway authority, also breached a
levy on the wildlife refuge adjacent to the property and destroyed
a tidegate which had prevented the tidal backflow from reaching
Leslie’s property.
The effect of all this human activity was to foster natural,
ecological developments: tidewater reached the edges of Leslie’s
property and caused the creation of some wetland features on the
southern fringes. Migratory birds used the crystallizers and cal-
cium chloride pits as habitat during the winter and spring when
they were flooded. In addition, an endangered species, the salt
marsh harvest mouse, used the property as habitat.
The controversy over this property arose in late 1985 when
Leslie started to dig a feeder ditch and siltation pond on parcel
143 in order to drain the land. The Corps soon became aware of
this activity and responded by issuing a cease and desist order
pursuant to its authority under Section 404 of the Clean Water
Act.” In that Act Congress directed the Corps, through ithe
Secretary of the Army, to “restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33
U.S.C. § 1251(a). The Corps claimed that Leslie was discharging
a pollutant (fill) into waters of the United States in violation of
Section 404(a) of the Clean Water Act, 33 U.S.C. § 1344(a)
(1982), provides in pertinent part:
The Secretary [of the Army] may issue permits... for the dis-
charge of dredged or fill material into the navigable waters at
specified disposal sites.
:
ate A-4
section 301 of the Act.’ The Corps also claimed that Leslie’s
activities were obstructing the navigable waters of the United
States in violation of section 10 of the Rivers and Harbors
Appropriations Act.* The Corps issued a second cease and desist
order in early 1987 to stop Leslie from placing fill on parcel 10.
The Corps issued that order in response to Leslie’s attempts to
block a culvert that connected its property to the Newark Slough.
In sum, the Corps claimed jurisdiction over the majority of the
property. Leslie challenged that claim of jurisdiction and filed
suit; the Corps countersued. The district court found in favor of
Leslie on all grounds, holding that the property was not subject to
the Corps’ jurisdiction. The United States appealed that decision.
Save San Francisco Bay Association and the National Audubon
Society intervened on behalf of the United States.
The Corps now asserts jurisdiction over the property based on
two separate theories which apply to two distinct portions of
Leslie’s land. First, the Corps argues that most of parcel 10 and
the southern tip of parcel 143 are adjacent wetlands that are part
of the Corps’ Clean Water Act Jurisdiction.* To resolve this
> Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a)
(1982), provides in pertinent part:
Except as ‘n compliance with this section and section[] . . . 1344 of
this title, the discharge of any pollutant by any person shall be
unlawful.
The Act defines fill as a pollutant at 33 U.S.C. § 1326(6).
“Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403
(1982), provides in pertinent part:
The creation of any obstruction not affirmatively authorized by
Congress, to the navigable capacity of any of the waters of the
United States is prohibited; ... and it shall not be lawful to exca-
vate or fill... any navigable water of the United States, unless the
work has been recommended by the Chief of Engineers and
authorized by the Secretary of the Army prior to beginning the
same.
* The Corps also claims that the southern portions of the property are
affected by the ebb and flow of the tide, and thus are subject to the
Corps’ jurisdiction under the Clean Water Act and the Rivers and
A-5
dispute we must first determine whether Congress intended that
Clean Water Act jurisdiction should extend to property which
government actions heiped make aquatic. Because we find that it
did, we then look to the Corps’ regulations interpreting the Act, to
determine whether they allow Corps jurisdiction. The Corps’
second theory relates to the former crystallizers and calcium
chloride pits. The Corps claims that these features are “other
waters,” as defined by Corps’ regulations, that are subject to its
jurisdiction.
STANDARD OF REVIEW
The district court’s findings of fact are subject to a clearly
erroneous standard of review. Issues of law, as well as mixed
questions of fact and law that involve consideration of legal
concepts rather than essentially factual inquiries, are reviewable
de novo. United States v. McConney, 728 F.2d 1195, 1200-02 (9th
Cir.), cert. denied, 469 U.S. 824 (1984).
When considering the Corps’ interpretation of the Clean Water
Act we defer to the agency’s analysis if it is “reasonable and not in
conflict with the expressed intent of Congress.” United States v.
Riverside Bayview Homes, 474 U.S. 121, 131 (1985); Chevron
U.S.A., Inc. v. NRDC, 467 U.S. 837, 844-45 (1984). The agency’s
interpretation of its own regulations is entitled to greater defer-
ence, amounting to a plain error standard. Montana Power Co. v.
EPA, 608 F.2d 334, 345 (9th Cir. 1979); Chemical Waste
Management, Inc. v. EPA, 873 F.2d 1477 (D.C. Cir. 1989).
Harbors Act. See 33 C.F.R. §§ 328.3(a)(1), 328.4(b)(1) and
329.12(a) (2). See also United States v. DeFelice, 641 F.2d 1169, 1175
n.15 (Sth Cir. Unit A April 1981) (citing cases). Because we find in
favor of the Corps on its wetlands claim, we do not reach this alternate
argument.
A-6
THE SOUTHERN PORTIONS OF THE PROPERTY
The Corps claims that the southern portions of the property are
wetlands within its jurisdiction.® The district court denied the
Corps jurisdiction for three reasons: (1) the wetland conditions
were caused by the government, (2) the conditions were not
“normal,” as required by 33 C.F.R. § 328.3(b), and (3) the
property was not adjacent to waters of the United States, as
required by 33 C.F.R. § 328.3(a) (7).
A. Governmentally Caused Inundation
We agree with the district court that Congress intended to
create a very broad grant of jurisdiction in the Clean Water Act,
extending to any aquatic features within the reach of the com-
merce clause power. See Leslie Salt Co. v. Froehlke, 578 F.2d
742, 755 (9th Cir. 1978) (citing California v. EPA, 511 F.2d 963,
964 n.1 (9th Cir. 1975), rev'd on other grounds, 426 U.S. 200
, (1976)). However, the district court made an exception to this
broad Congressional mandate and held that changes to the
property caused by the government do not create jurisdiction. The
court reasoned that a contrary holding would allow the Corps “to
expand its own jurisdiction by creating some wetland conditions
where none existed before.” While this is a valid concern, the
facts of this case do not present such a problem.
The district court relied upon United States v. City of Fort
Pierre, 747 F.2d 464 (8th Cir. 1984). In Fort Pierre, the Corps
asserted section 404 jurisdiction over a dry slough that had begun
to exhibit wetland characteristics as a direct result of the Corps’
dredging activity on a nearby river. The Eighth Circuit held that
the Corps did not have jurisdiction due to the “peculiar facts and
unique circumstances” of that case, in which “the Corps, as an
unintended by-product of ordinary river maintenance, inadver-
tently create[d}] a wetland-type ecological system on private
property where no such system previously existed.” Jd. at 466,
° The Corps initially claimed that almost all of the property qualified
as a wetland. The United States only appeals the district court’s
determination as to the southern portions of the property, which the
district court found had the physical characteristics of wetlands.
A-7
481. The Eighth Circuit recently reaffirmed limiting Fort Pierre to
these specific facts. See United States v. Southern Inv. Co., 876
F.2d 606, 612 (8th Cir. 1989).
The factual situation in this case differs substantially from that
in Fort Pierre. Here, the Corps was not directly and solely
responsible for flooding Leslie’s land: Caltrans constructed the
culverts which allowed water to flow onto Leslie’s property;
Caltrans and the Fish and Wildlife Service breached the levee on
the wildlife refuge adjacent to Leslie’s property which allowed
water to flow up the culverts; Caltrans and the Fish and Wildlife
Service failed to place effective floodgates on the culverts; Leslie
itself maintained floodgates which unknown third parties propped
open. Contrary to the district court’s conclusion, the Corps did
not itself create the wetland conditions and thereby attempt to
expand its own jurisdiction.’
The fact the third parties, including the government, are
responsible for flooding Leslie’s land is irrelevant. The Corps’
jurisdiction does not depend on how the property at issue became
a water of the United States. Congress intended to regulate local
acquatic ecosystems regardless of their origin. See, e.c., Swanson
v. United States, 789 F.2d 1368 (9th Cir. 1986) (Corps construc-
tion of a dam creates waters under Corps jurisdiction); United
States v. Tull, 769 F.2d 182, 184 (4th Cir. 1985) (federal
construction of mosquito-control ditch creates waters under Riv-
ers and Harbors Act jurisdiction), rev'd on other grounds, 481
U.S. 412, 414 n.1 (1987); United States v. DeFelice, 641 F.2d at
1175 (illegal and unauthorized acts of third parties can create
Rivers and Harbors Act jurisdiction), cert. denied, 454 U.S. 940
(1981); Track 12 Inc. v. District Engineer, U.S. Army Corps of
Engineers, 618 F. Supp. 448, 449 (D. Minn. 1985) (state and
locality construction of highway and sewage system creates Corps
jurisdiction). If the Corps’ regulations under Clean Water Act
jurisdiction harm a landowner, her appropriate response is to seek
damages through inverse condemnation proceedings, not to re-
” All parties agree that the district court’s statement that “the Corps
flooded the wildlife refuge and thereby brought tidewater further in-
land,” directly contradicts the record and its own statement of facts.
A-8
strict the scope of Corps jurisdiction. Riverside Bayview Homes,
474 US. at 128.
B. Normal Circumstances
The district court’s second rationale for denying Corps jurisdic-
tion over the southern portions of the property was a Corps
regulation that defines wetlands as an area that “under normal
circumstances” supports wetland vegetation. 33 C.F.R.
§ 328.3(b). Although the district court found the requisite wet-
land conditions, it held that “circumstances in those areas are not
‘normal,’ because the ability to support [wetland] vegetation was
caused primarily by the government’s flooding of the wildlife
refuge across [the road].” The district court’s interpretation of
the “normalcy” requirement is tainted by its holding excluding
governmentally created artificial waters from Corps jurisdiction.
The phrase “under normal circumstances” is meant to exclude
those areas which are not aquatic, but experience an “abnormal
presence of aquatic vegetation.” 42 Fed. Reg. 37128 (1977).
According to the district court’s findings, the southern fringes of
the parcel are aquatic areas. The fact that these wetlands are
man-made does not make them “abnormal.” Whether the wet-
lands are artificially or naturally created is irrelevant to this
determination.
C. Adjacency
We disagree with the district court’s third alternative holding,
that this wetland is not adjacent to waters of the United States, as
required by 33 C.F.R. § 328.3(a) (7). In reaching this conclusion,
the district court again relied on its decision to exclude from
consideration any consequences of the backflow through the
Culverts created by Caltrans and the Fish and Wildlife Service. In
the absence of this erroneous holding, the southern portions of the
property are adjacent to waters of the United States—the water in
the culvert, which is directly connected to the Newark Slough.
THE CRYSTALLIZERS AND PITS
The Corps determined that the former crystallizers and cal-
cium chloride pits qualified as “other waters” that were under
A-9
Corps jurisdiction according to 33 C.F.R. § 328.3(a)(3). That
section defines “waters of the United States” to include:
All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wet-
lands, sloughs, praine potholes, wet meadows, playa lakes, or
natural ponds, the use, degradation or destruction of which
could affect interstate or foreign commerce... .
The district court held that the crystallizers and pits were not
described by this section for two reasons. First, because they are
artificial structures and the regulation lists only natural forma-
tions. Second, the court concluded that the ponding was too
temporary to qualify as other waters. The district court also
addressed but did not decide the question of whether the property
has a sufficient connection to interstate commerce.
A. Artificial vs. Natural Formations
The district court applied the doctrine of ejusdem generis to
construe the regulations to exclude artificially created waters. The
court noted that all the waters listed as “other waters” in section
328.3(a)(3) were naturally created, and concluded that the
artificially created crystallizers and calcium chloride pits could
not be covered by that section. The ejusdem generis rule of
Statutory construction is used to illuminate the intent of the
drafters; when the rule conflicts with other, clearer indications of
intent, its results should be ignored. See Weyerhaeuser S.S. Co. v.
United States, 372 U.S. 597, 601 (1963); Black's Law Dictionary,
464 (Sth ed. 1979). Reliance on the rule is inappropriate in this
case.
The “ejusdem generis rule” is, that where general words follow an
enumeration of persons or things, by words of a particular and
specific meaning, such general words are not to be construed in
their widest extent, but are to be held as applying only to persons or
things of the same general kind or class as those specifically
mentioned....[The rule does not] apply when the context
manifests a contrary intention.
Black's Law Dictionary, 464 (Sth ed. 1979). See also 2A Sutherland
Statutory Construction § 47.17 at 103 (4th ed. 1973).
A-10
First, the district court’s interpretation conflicts with other parts
of the Corps’ regulations which assert that the Corps generally
has jurisdiction over man-made waters under both the Clean
Water Act and the Rivers and Harbors Act. See 33 C.F.R.
§§ 328.5, 329.8. The Corps also defines at least one of the features
listed in section 328.3(a)(3) to include artificial waters. See 33
C.F.R. § 323.2(b) (“lake” includes “a standing body of open
water created by artificially blocking or restricting the flow of a
river, stream or tidal area’’). In addition, the Corps’ comments to
the final regulations support the power of the Corps to assert
jurisdiction over artificially created waters:
[W]e generally do not consider the following waters to be
“waters of the United States.” However, the Corps reserves
the right on a case-by-case basis to determine that a particu-
lar waterbody within these categories of waters is a water of
the United States.
a * .
(c) Artificial lakes or ponds created by excavating and/or
diking dry land to collect and retain water and which are
used exclusively for such purposes as stock watering, irriga-
tion, settling basins, or rice growing.
* * +
(e) Waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the
purpose of obtaining fill, sand or gravel unless and until the
construction or excavation operation is abandoned and the
resulting body of water meets the definitions of waters of the
United States (see 33 C.F.R. 328.3(a)).
51 Fed. Reg. 41206, 41217 (1986) (emphasis added). These
comments show that the Corps intends to exempt from its
jurisdiction only those artificially created waters which are cur-
rently being used for commercial purposes, and that even those
waters are subject to such jurisdiction on a “case-by-case”’ basis
of review. The crystallizers and calcium chloride pits have not
been used for commercial purposes for decades and so are not
subject to even this limited exemption. Finally, courts have
uniformly included artificially created waters in the Corps’ juris-
A-11
diction under the Clean Water Act and the Rivers and Harbors
Act. See, e.g., Tull, 769 F.2d 182 (mosquito-control ditch);
Stoeco Dev. Ltd. v. Dept. of the Army Corps of Eng'rs, 701 F.
Supp. 1075, 1078 (D.N.J. 1988) (artificially created wetland),
appeal dismissed, 879 F.2d 860 (3rd Cir. 1989); United States v.
Akers, 651 F. Supp. 320 (E.D.Cal. 1987) (same); Track 12, 618
F. Supp. 448 (same); United States v. Ciampitti, 583 F. Supp.
483 (D.N.J. 1984) (same), affirmed, 772 F.2d 893 (3rd Cir.
1985), cert. denied, 475 U.S. 1014 (1986). We reject the district
court’s interpretation of the regulations as creating a distinction
between artificial and natural waters.
B. Temporary Water Formations
The district court also held that the crystallizers and calcium
chloride pits were not other waters because they “are in fact dry
most of the year.” Due to the climate in the Bay Area, ponding
only occurs during the winter rainy season. The seasonal nature of
the ponding is no obstacle to Corps jurisdiction however, because
the regulations specifically enumerate two seasonal water features
as Other waters: intermittent streams and playa lakes. See Quivara
Mining Co. v. EPA, 765 F.2d 126, 130 (10th Cir. 1985), cert.
denied, 474 U.S. 1055 (1986); United States v. Phelps Dodge
Corp., 391 F. Supp. 1181, 1187 (D.Ariz. 1975).
The Corps’ determination that the crystallizers and calcium
chloride pits are similarly seasonal bodies of water within the
meaning of the regulations is proper. We reverse the district
court’s contrary conclusion.
C. Interstate Commerce
The crystallizers and pits must still have sufficient connections
to interstate commerce to come under the Corps’ jurisdiction as
“other waters.” 33 C.F.R. § 328.3(a) (3). The Corps has adopted
the following EPA criteria to determine when waters have suffi-
cient ties to interstate commerce:
[ Waters ]
a. Which are or would be used as habitat by birds
protected by Migratory Bird Treaties; or
A-12
b. Which are or would be used as habitat by other
migratory birds which cross state lines; or
c. Which are or would be used as habitat for endangered
species. ...
51 Fed. Reg. 41206, 41217. The district court failed to determine
whether the crystallizers and pits meet these standards. The
record showed however, that migratory birds (including many
protected by Migratory Bird Treaties) and one endangered spe-
cies may have used the property as habitat. The commerce clause
power, and thus the Clean Water Act, is broad enough to extend
the Corps’ jurisdiction to local waters which may provide habitat
to migratory birds and endangered species. See Utah v. Marsh,
740 F.2d 799, 804 (10th Cir. 1984); Palila v. Hawaii Dep't of
Land and Natural Resources, 471 F. Supp. 985, 991-95 (D.Hi.
1979), aff'd, 639 F.2d 495 (9th Cir. 1981). See generally Hughes
v. Oklahoma, 441 U.S. 322, 329-36 (1979). We remand this
issue to the district court to determine if the property has the
requisite connections to interstate commerce.
CONCLUSION
The southern portions of Leslie’s property meet both the
statutory and regulatory requirements for the Corps to exert
Clean Water Act jurisdiction over them. The fact that the
government in part caused the inundation of the property is not of
consequence. Similarly, the government’s actions do not affect
the normalcy or adjacency requirements of the regulations. As to
the crystallizers and calcium chloride pits, their artificiality and
temporary wetness pose no obstacle to Corps jurisdiction. We
remand to the district court for a factual determination of the
sufficiency of the property’s connections to interstate commerce.
Because the record reflects that the Corps’ jurisdiction does not
extend to the total property, we also remand to determine over
which portion of the property the Corps has valid jurisdiction in
light of this opinion’s legal conclusions. Costs will abide the final
determination.
REVERSED and REMANDED.
A-13
RYMER, Circuit Judge, concurring in part, dissenting in part.
I join in the majority’s holding that the southern portions of
Leslie’s property meet the Clean Water Act requirements for
Corps’ jurisdiction. I disagree, however, with the majority’s con-
clusion that the district court erred in its treatment of the
crystallizers and calcium chloride pits.
The crystallizers and pits are seasonal bodies of water that
derive their major source of water from rain. There is standing
water in the crystallizers and pits during the winter rainy season,
when the rain collects, until early to mid-spring, when all the
water has evaporated. The rest of the year the crystallizers and
pits are dry. Although the majority is correct that “the seasonal
nature of the ponding is no obstacle to Corps’ jurisdiction,” the
cycle of ponding in the crystallizers and pits creates no hydrologi-
cal connection with any other body of water. This fact distin-
guishes Quivara Mining Co. v. EPA, 765 F.2d 126 (10th Cir.
1985) and United States v. Phelps Dodge, 391 F.Supp. 1181 (D.
Ariz. 1975). Even though three fish may have found their way
into one of the ponds, there is nothing in the record to show that
water flows directly or indirectly from the crystallizers or pits into
another body of water.
That being the case, the district court correctly determined that
the crystallizers and pits are not “other waters” within the
meaning of section 328.3(a)(3). It is therefore unnecessary to
reach the issue on which the Supreme Court has declined to rule,
see United States v. Riverside Bayview Homes, 474 U.S. 121, 131
n.8 (1985): whether the Clean Water Act extends Corps’ juris-
diction to waters that are not “adjacent to bodies of open water.””!
' The majority holds that “the commerce clause power, and thus the
Clean Water Act, is broad enough to extend the Corps’ jurisdiction to
local waters which may provide habitat to migratory birds and endan-
gered species.” Congress does have power under the Commerce Clause
to regulate wildlife and endangered species. Palila v. Hawaii Dep't of
Land and Natural Resources, 471 F.Supp. 985 (D. Haw. 1979), afd
639 F.2d 495 (9th Cir. 1981) and Hughes v. Oklahoma, 441 U.S. 322
(1976) stand for that proposition. However the issue in this case is not
whether Congress has the power under the Commerce Clause to
regulate wildlife and endangered species, but whether Congress meant
to extend Corps’ jurisdiction under the Clean Water Act to the full
extent of its commerce clause power. Specifically, it is: is it reasonable
for Corps’ jurisdiction to rest on the fact that migratory birds and
endangered species may use the waters as a habitat? In Utah v. Marsh,
740 F.2d 799 (10th Cir. 1984), the other opinion on which the majority
relies, the lake was used for several purposes that established a connec-
tion to interstate commerce. It is unclear whether the Marsh court
would have found a substantial enough effect on interstate commerce,
and thus Corps’ jurisdiction under the Clean Water Act, had the only
connection to interstate commerce been that “the lake was on flyway of
several species of migratory waterfowl... .” Jd. at 803.
In addition, in Riverside Bayview Homes the Supreme Court held
that since the Corps’ asserted jurisdiction over adjacent wetlands was
brought to the attention of Congress “through legislation specifically
designed to supplant it” (Congress’ consideration of the Clean Water
Act of 1977, a major piece of legislation aimed at achieving “interim
improvements within the existing framework” cf the Clean Water Act,
H.R. Rep. No. 95-139 pp 1-2 (1977)), and Congress rejected efforts
designed to curb that jurisdiction, that was “at least some evidence of
the reasonableness of the [Corps’] construction.” 474 U.S. at 137. Such
evidence of reasonableness does not exist in this case. The Corps issued
new regulations governing its regulatory programs on November 13,
1986 in order to clarify the scope of the Section 404 permit program.
The new regulations placed the definition of “waters of the United
States” into a new Part 328 of Title 33 of the Code of Federal
Regulations. As a further clarification, and as an addition to the old
regulations, the new regulations stated that “waters of the United
States” also include the following: areas which are “or would be” used
as a habitat for migratory birds or endangered species. 33 C.F.R.
§ 328.3(a)(3). This 1986 addition to, or clarification of, the Corps’
regulations was not considered during congressional debates on the
Clean Water Act of 1977. Therefore, the evidence of reasonableness that
the Supreme Court found regarding the Corps’ regulations in Riverside
Bayview Homes does not apply to the 1986 clarification of those
regulations, in particular, the list that includes-migtatory and endangered
species habitats. ;
A-15
Appendix B
Leslie Salt Co., a Delaware corporation,
Plaintiff,
Vv.
The United States of America: John O. Marsh, et al.,
Defendants.
United States of America,
Plaintiff,
V.
Leslie Salt Co., a Delaware corporation,
Cargill Inc., a Delaware corporation,
Defendants.
Nos. C-85-8615-CAL, C-86-4187-CAL.
United States District Court,
N.D. California.
Sept. 29, 1988.
As Amended Jan. 11, 1989.
OPINION
LEGGE, District Judge.
These cases were tried to the court, sitting without a jury. The
cases were then argued and submitted for decision following the
completion of briefing. The court has heard and reviewed the
testimony of the witnesses, and has reviewed the designated
deposition transcripts, the exhibits, the designated discovery re-
sponses, the record of the case, and the applicable authorities.
This opinion constitutes the court’s findings of fact and conclu-
sions of law, as provided in Rule 52(a) of the Federal Rules of
Civil Procedure.
I. Parties
Leslie Salt Co., a Delaware corporation, is the plaintiff in C-85-
8615 and a defendant in C-86-4187. Cargill Inc., a Delaware
A-16
corporation, is the owner of Leslie Salt Co. and is also a defendant
in C-86-4187. Those parties will jointly be called “Leslie” in this
opinion. The United States of America is the plaintiff in C-86-
4187 and the defendant in C-85-8615. The Secretary of the
Army, the United States Army Corps of Engineers, and certain
officers of the Corps of Engineers are also defendants in C-85-
8615. The United States, the Secretary, the Corps and its officers
are collectively called the “Corps.” The Save San Francisco Bay
Association, Inc., and the National Audubon Society were
granted leave to intervene as defendants in C-85-8615.
Il. Jurisdiction of the Court
There is no dispute between the parties as to the jurisdiction
and venue of this court. Jurisdiction is predicated on 28 U.S.C.
§§ 1331, 1345, 1346, and 2201-2202, 33 U.S.C. §§ 406 and
1319(b). The property in dispute is located in this district, and
venue is proper under 28 U.S.C. §§ 1391(b), 1391{e) and 1402,
and 33 U.S.C. § 406 and 1319(b).
These actions arose when the Corps issued a cease and desist
order to Leslie pertaining to Leslie’s activity on certain property
that Leslie owns in the City of Newark, California. The Corps
asserted jurisdiction over the property under § 1344 of the Clean
Water Act, 33 U.S.C. § 1251 et seg., and sudsequently also
asserted jurisdiction under § 403 of the Rivers and Harbors Act,
33 U.S.C. § 401 et seg. Leslie filed action C-85-8615 to contest
the Corps’ jurisdiction over the property. The corps then brought
action C-86-4187 to establish its jurisdiction over the property
under those two Acts, and claimed that Leslie had violated those
Acts in connection with its activities on or connected with the
property. The principal, but not the only, question to be resolved
is whether the property is a “wetland” within the meaning of the
applicable statutes and regulations, and hence is under the juris-
diction of the Corps.
III. Burden of Proof
Before trial the Corps moved for a bifurcation and stay of the
action. The motion in essence asked this court to refer the central
A-17
issue in this case—whether the property is under the jurisdiction
of the Corps—to the Corps for its administrative decision. That
decision would have then been reviewable by this court under the
Administrative Procedure Act, 5 U.S.C. § 706. The record for
that review would have been confined to the Corps’ decision and
its administative record, and the review would have been under
the limited standard of whether the Corps’ decision was arbitrary,
capricous, [sic] an abuse of discretion, or contrary to law. This
court denied that motion and determined that the issues should be
tried as plenary actions in this court. Leslie Salt Co. v. United
States, 660 F.Supp. 183 (N.D.Cal.1987).
At trial, the Corps acknowledged that the burden of proof in
this plenary civil trial is the preponderance of the eviderice.
However, the parties disagree about what must be proved. Leslie
contends that it has the burden of showing that the Corps lacks
jurisdiction over its property. The Corps contends that Leslie
must prove that the Corps’ assertion of jurisdiction is arbitrary
and capricious.
/
The basis for the Corps’ argument is the well-settled principle
that an agency’s interpretation of a statute which it administers is
generally entitled to substantial deference, as is the agency’s
interpretation of its own regulations. Ford Motor Credit Co. v.
Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22
(1980). Under this principle, the court must accept the agency’s
interpretation so long as it is “reasonable and not in conflict with
the expressed intent of Congress.” United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 461, 88
L.Ed.2d 419 (1985).
The court cannot determine whether the Corps has jurisdiction
over Leslie’s property with no reference at all to the Corps’
interpretation of the applicable statutes and regulations. However,
the Corps’ interpretation is not entitled to prevail simply because
it is not capricious or arbitrary. The issue is whether it “is
reasonable, in light of the language, policies, and legislative
history of the Acts for the Corps to exercise jurisdiction.” /d. at
131, 106 S.Ct. at 46) (emphasis added).
A-18
The standard of reasonableness requires evaluating the evi-
dence in light of the language of the Clean Water Act, the Rivers
and Harbors Act, and the applicable regulations under those Acts.
That requires consideration of a number of factors, including the
degree of the Corps’ scientific or technical expertise necessarily
drawn upon in reaching its interpretation, the consistency of the
interpretation within the Corps, the length of adherence to the
interpretation, and the explicitness of the Congressional grant of
authority to the Corps. See Avoyelles Sportsmen's League v.
Marsh, 715 F.2d 897, 910-11 (5th Cir.1983)."
This is the standard which this court has followed in this case.
The court emphasizes that this reasonableness standard does inot
affect the parties’ evidentiary burdens in proving disputed factual
issues. Deference does not require the court to accept the Corps’
version of the evidence. And the facts stated in this opinon are
found by this court to be facts by a preponderance of the
evidence.
IV. The Role of the Court
Underlying the legal and factual issues to be decided in this
case is the financial question of what use will be made of the
property. It is obviously a valuable piece of commercial property,
and Leslie seeks to develop it. By asserting jurisdiction, the Corps
seeks to preclude or restrict that development, and in essence to
maintain the property in its present undeveloped state.
This case therefore involves a balance between the rights of
private property on the one hand, and the interests of the
government and the public on the other. The scale for measuring
that balance is defined by Congress in the Clean Water Act and
the Rivers and Harbors Act.
The role of this court is not to sit as a super-ecologist. That is, it
is not the function of this court to decide what should be done
with the property in the best interests of ecological balance. If
'If the court determines that the Corps has jurisdiction, certain
decisions would then be made by the Corps under its administrative
processes.
A-19
that were the court’s function, this court would probably say that
the San Francisco Bay Area has too much development and that
more land should be left undeveloped. But that is not the court’s
function. This court’s role is to define what Congress did under
the Acts, to define what powers the Corps has been given by
Congress and by the regulations, and to apply those definitions to
the evidence which the court has heard about the property. In
order to restrict or prevent Leslie’s right to deveiop its property,
the court must find from the evidence that the property is within
the jurisdiction of the Corps under those Acts and regulations.
That is the extent of the judicial power in this dispute.
V. The Property
The property is owned by Leslie. It totals one hundred fifty-
three acres, divided by a road into two parcels of approximately
one hundred forty-three acres and ten acres. Except where there
is a reason to distinguish between them, both parcels will be
collectively called the “property.”
The property is located in the City of Newark, Alameda
County, California. It is surrounded on all sides by roads and
highways. The one hundred forty-three acre parcel (“parcel
143”) is bounded on the north by State Highway 84, on the west
by Thornton Avenue, on the south by relocated Jarvis Avenue,
and on the east bv Jarvis Avenue, with residential subdivisions of
the City of Newark lying east across Jarvis Avenue. The ten acre
parcel (“parcel 10”) is located across relocated Jarvis Avenue to
the south of parcel 143 and is bounded by Thornton and Jarvis
Avenues.
Across Thornton Avenue to the west of the property is the San
Francisco National Wildlife Refuge, situated on land which was
previously taken from Leslie by condemnation action of United
States. The nearest navigable water is Newark Slough, which is
approximately one quarter mile from the southernmost tip of the
property, and that point is approximately two miles from San
Francisco Bay.
Parcel 143 consists of areas of differing characteristics which
are important for purposes of this litigation. Approximately the
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eastern one-third of the parcel is pastureland. Located on the
pastureland are two pits, which were formerly used by Leslie for
the deposit of calcium chloride. The remaining two thirds of
parcel 143 constitutes land surface which Leslie previously used
as crystallizers for the manufacture of salt. The parcel has also
been impacted by the construction of highways, a sewer line and
ditches, and by plowing, as discussed below. There are no tribu-
tary streams or rivers either on or adjacent to the property. The
property has never been inundated by tides. The property is
drained of water, and is subject to some backflow, through three
culverts which run under Thornton Avenue. One is located at the
southernmost tip of parcel 10, and runs under Thornton Avenue
to Newark Slough. The second is located near the intersection of
Jarvis and Thornton, and runs under Thornton Avenue onto the
wildlife refuge. The third is located approximately halfway up
Thornton Avenue, and aiso runs under Thornton Avenue and onto
the wildlife refuge.’
For purposes of this case, the condition of the property must
also include consideration of weather. The San Francisco Bay
Area has what is called a Mediterranean climate. That is, rain is
not consistent throughout the year, but occurs primarily in the
winter months with little or no rainfall during the balance of the
year. Since the climate is ‘vet in one season and dry the remainder
of the year, the amount of water on the property will vary over the
year. As a result, observations and scientific tests on the “wet-
ness” of the land will depend in part on when the observations and
tests are made.
VI. History of the Property
The issue in this case is whether the property is subject to
Corps’ jurisdiction. That decision must be made by examining the
characteristics of the property as it now is (or more accurately, as
it was in 1985 when the Corps asserted jurisdiction) under the
> This property is not of the same type or location as that discussed in
Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978). The property
in that case was, in its natural condition, marshland subject to the ebb
and flow of the tide. The present property is not marshland. /d. at 745.
A-21
definitions of the Acts and the regulations. The inquiry is not the
condition of the property at some prior time in its history.
Nevertheless, some references to the history of the property are
appropriate as being probative of its conditions today. Indeed,
even the Corps argues that the formation of the soils in the
geological history of the property is relevant to a determination of
whether those soils are “hydric” today. The court will therefore
briefly discuss the history of the property insofar as its general
background is probative of the present condition of the property.
The property was originally acquired by Leslie’s predecessors in
interest in the late 1800s. A certain portion of the property,
primarily the eastern one-third of parcel 143, has been used as
pasture and grazing land for livestock since that time. In approxi-
mately 1919, Leslie’s immediate predecessor in interest began tc
construct facilities on the property for the manufacture of salt. A
railroad spur, a salt refining plant and related buildings were
erected. Pits were excavated on the eastern one-third of the
property for depositing calcium chloride.
The western two-thirds of the property was made into so-called
salt crystallizers, which held salt brine during the final stage of the
solar salt production process. The crystallizers were constructed
on dry land, by excavating large shallow basins, and leveling and
compacting the soil on the bottom to create a level and watertight
surface. The excavated soil was used to build earthen levees
around the crystallizers to form watertight earthen containers.
During the years of their use by Leslie, saturated salt brine
(which had been produced by Leslie’s evaporation ponds located
closer to San Francisco Bay) was pumped through the Coyote
Hills and into the crystallizers. Then salt then precipitated and
settled onto the bottom of the crystallizers. The remaining liquid
was drawn off, and the salt was harvested by large mechanical
harvesters that ran across the floor of the crystallizers. The salt
was then moved by railcars to a refining plant located on the
property. After each harvest of the salt, the crystallizers were
drained, releveled, and recompacted.
By 1959 the use of the property to manufacture salt became
uneconomical. Since 1959 (with the exception of some limited
production in 1962 and 1968), no use was made of the crystalliz-
A-22
ers, and that portion of the property has remained dry, except
when rainwater accumulates during the winter. Ponds temporarily
form after rains, because the floor of the crystallizers has re-
mained relatively watertight as a result of their construction and
frequent compaction. Before being plowed in 1983, the crystalliz-
ers were generally devoid of any vegetation, due to the compac-
tion and the high salinity of the soil resulting from their prior use
in the manufacture of salt.
A dust problem resulted from the dry and barren condition of
the crystallizers. Dust blew from their surface onto the neighbor-
ing housing tracts across Jarvis road. As a result, Leslie was cited
for air pollution violations. In an attempt to control the dust
problem, Leslie plowed the property in 1983 and 1985. The
plowing had the obvious result of loosening the soil in the
crystallizers and creating furrows. That loosening of the soil and
creation of furrows resulted in conditions somewhat more hospita-
ble to the growth of plants.
Two other acts of man affect the present character of the
property. In the early 1980s, the Eastbay Dischargers Authority
constructed a large sewer line across the property. The construc-
tion had the effect of disturbing the natural conditions and left fill
and inundations on the property. Between 1980 and 1983, Cal-
trans constructed Highway 8&4 across the northern part of the
property; relocated Thornton Avenue across the western portion
of the property; and relocated Jarvis Avenue, dividing the prop-
erty into the two parcels. These construction activities by Caltrans
resulted in the creation of highways, roadbeds, ditches, and
drainage facilities, including culverts under Thornton Avenue.
The Caltrans construction also breached a levy on the wildlife
refuge and destroyed an inflow control that had prevented New-
ark Slough from flooding the refuge area. The Caltans construc-
tion was also apparently responsible for the destruction, or the
keeping open, of what had been a tidegate on one of the culverts
under Thornton Avenue. Leslie has asked Caltrans to put a
floodgate on one of the culverts, but Caltrans has declined
because of the controversy over the issues in this case.
That is the present condition of the property. For purposes of
this discussion and the Corps’ claim of jurisdiction, the property
jie
A-23
can be discussed by reference to the following segments: (a) the
western two-thirds of parcel 143, which is the former crystallizer
area; (b) the eastern one-third of parcel 143, which has primarily
been pastureland; (c) the calcium chloride pits dug on that
eastern one-third; (d) parcel 10; and (e) the physical characteris-
tics created by the Caltrans and the sewer construction.
What significance is to be given to the fact that certain of the
present features were man-made? The Corps takes the position
that this fact should be ignored. Leslie argues that the court
should not consider the impact of changes that were made to the
property by others without Leslie’s consent. ‘
The significant man-made changes to the property include the
construction by Caltrans discussed above. In addition, the United
States extended some of the drainage ditches across the wildlife
refuge to Newark Slough, for the purpose of carrying tidewater
onto the refuge in order to create a wetland environment there.
Despite requests from Leslie, neither the United States nor
Caltrans has installed effective tide control mechansims on the
culverts or ditches, with the result that some water occasionally
reaches the edges of Leslie’s property in the culverts and ditches.
Leslie has attempted to install floodgates on the ditches, but these
mechanisms were either opened or removed by others.
The court agrees generally with the Corps that the impact of
human activity is not, in the usual case, relevant to the Corps’
jurisdiction under the Clean Water Act. If a water body is a
“water of the United States,” it does not matter how it came to be
so. See, e.g., United States v. Akers, 651 F.Supp. 320, 322
(E.D.Cal.1987); Track 12, Inc. v. District Engineer, 618 F.Supp.
448, 450 (D.Minn.1985).
The situation in this case, however, is not typical. The reported
decisions on the significance of man-made alterations have in-
volved properties that were indispute iy “wetlands,” or were
otherwise “waters of the United States.” In addition, those cases
did not involve acts of man that were taken without the consent
of, and over the protest of, the owner of the property.
In this case, the Corps flooded the wildlife refuge and thereby
brought tidewater further inland, reaching the edges of Leslie’s
A-24
property. Moreover, the Corps and Caltrans have refused to
install tide control mechanisms that would prevent water from
reaching the property, and the Corps has prevented Leslie from
maintaining such devices. The Corps has in essence tried to
expand its own jurisdiction by creating some wetland conditions
where none existed before.
Such actions by a government agency undermine the balance
struck by Congress between regulation and private ownership.
This court therefore concludes that the impact of backflow of
water over the wildlife refuge and through the culverts and
Caltrans drainage ditches should not be considered in determining
the Corps’ jurisdiction.
This conclusion is consistent with United States v. City of Fort
Pierre, 747 F.2d 464 (8th Cir.1984). In that case, a dry slough
bed began to exhibit wetland characteristics as a result of the
Corps’ dredging activity on a nearby river. The court held that the
effects of the acts of the Corps should be disregarded in determin-
ing Clean Water Act jurisdiction, because “[t]o decide otherwise
would allow the Corps to enlarge its jurisdiction beyond the scope
originally intended by Congress.” Jd. at 467. This court believes
that this principle applies in this case.
The government’s reliance on Swanson v. United States, 789
F.2d 1368 (9th Cir. 1986) in this case is misplaced. In Swanson,
the Court held that when the Corps constructed a new dam, its
jurisdiction was correspondingly extended to the new high water
mark. However, in that case, Congress explicitly approved the
dam construction. In this case, Congress did not approve the
creation of wetland conditions on Leslie’s property. The govern-
ment argues that Congressionai approval of the construction of
the wildlife refuge authorizes an expansion of Corps’ jurisdiction
over Leslie’s property. However, Congressional approval of a
project does not amount to a sanction for all consequences of the
project, only those that are part of it. Congress approved a wildlife
refuge of a certain dimension; it did not approve a wildlife refuge
that was self-expanding. Swanson does not stand for the proposi-
tion that an agency can expand its own jurisdiction; it merely
reinforces the truism that Congress may give, and Congress may
take away, the regulatory jurisdiction of agencies.
A-25
VII. The Corps’ Assertion of Jurisdiction
The events which led the Corps to assert jurisdiction over the
property occurred in October 1985. Leslie began digging a feeder
ditch and siltation pond on a portion of the former crystallizers.
When the Corps became aware of this, a representative of the
Corps visited the property and conferred with Leslie. The Corps
then issued a telegraphic cease and desist order, and later a letter
asserting jurisdiction.
A second event occurred in 1986-87 with respect to parcel 10.
Leslie plugged one end of the culvert leading from that parcel to
Newark Slough, in order to prevent water from backing up
through the culvert and onto the parcel. The Corps objected to
that activity and issued a cease and desist order.
Although Leslie contests the Corps’ jurisdiction to issue those
cease and desist orders, Leslie has not taken any steps in violation
of them while this litigation has been pending.
The Corps asserts jurisdiction over the vast majority of the
property, under numerous subsections of the Acts and regulations;
see exhibit 639. The actual extent of its claim of jurisdiction is
marked on a map which is exhibit 640. Leslie denies that any of
its property is subject to Corps jurisdiction. It admits that certain
small portions in the southernmost tip of parcel 10 and in the
southwest corner of parcel 143 may exhibit wetland conditions at
certain times of the year, and that water occasionally backs up
through the culverts and into the Caltrans ditches. However, as
stated above, Leslie contends that those conditions should not be
considered for purposes of this case, because they resulted from
activities of the United States and Caltrans to which Leslie did
not consent.
VIII. Rivers and Harbors Act
Has Leslie violated §403 of the Rivers and Harbors Act, 33
U.S.C. § 401, et seq. That issue first of all depends upon whether
Leslie’s property is subject to the jurisdiction of that Act.
Section 403 in essence prohibits the “creation of any obstruc-
tion...to the navigable capacity of any of the waters of the
A-26
United States,” and the alteration of the condition or capacity of
any “navigable water of the United States.” A general definition
of the term “navigable waters of the United States” is set forth in
33 C.F.R. § 329.4. And the extent of Corps’ jurisdiction under the
Act and the regulation has been interpreted in Leslie Salt Co. v.
Froehlke, 578 F.2d 742 (9th Cir.1978). As interpreted by the
Ninth Circuit, the Corps’ jurisdiction under that Act extends only
to the portions of property that are “covered by the ebb and flow
of the tide to the mean high water mark... in its unobstructed
natural state.” Jd. at 753.
The evidence established, and the Corps concedes, that none of
Leslie’s property is below the mean high water line, except certain
elevations in the culverts under Thornton Avenue and in certain
low-level portions of the drainage ditches constructed by Caltrans.
However, the court has concluded for the reasons discussed above
that the impact of these structures should not be considered in
determining the extent of the Corps’ jurisdiction over Leslie’s
property.’ The court also finds that even if the culverts and
ditches were considered, the evidence is not sufficient to establish
that Leslie’s property is subject to the jurisdiction of the Act as
defined in Leslie v. Froehlke, above. Therefore, the court finds
and concludes that the acts of Leslie did not violate the Rivers
and Harbors Act.
IX. Clean Water Act
Congress passed what is now called the Clean Water Act in
1972, and has subsequently made several amendments. 33 U.S.C.
§ 1251, et seg. Congress did so acting under its Commerce Clause
powers. It stated that its legislative objective was “to restore and
maintain the chemical, physical, and biological integrity of the
Nation’s waters.” 33 U.S.C. § 1251 (a). Congress’ concerns in the
Act were obviously with pollution of the nation’s waters, and not
with all forms of pollution throughout the United States.
* 33 C.F.R. § 329.8(a) should not apply when the artificial condition
was created against the owner’s consent.
A-27
Under the - certain activicdies are prohibited or limited.
Among those .» ~t-e diséharge of any pollutant.” 33 U.S.C.
§ 1311. And Congress defined “pollutant” to include the dumping
of fill. 33 U.S.C. § 1362(6).
The primary section with which we are concerned in this case is
section 404 of the Clean Water Act, 33 U.S.C. § 1344. In
subsection (a), Congress gave to the Corps the power to issue
permits, and necessarily to deny permits, for the “discharge of
dredged or fill material into the navigable waters.” Congress
defined the term “navigable waters” to mean the “waters of the
United States.” 33 U.S.C. § 1362(7). Congress did not define the
term “waters of the United States.”
Congress therefore gave the Corps jurisdiction to regulate the
discharge of fill into the “waters of the United States.” This
circuit has said that the jurisdictional terms of the Act are to be
given the broadest possible interpretation under the Commerce
Clause of the constitution. Leslie Salt Co. v. Froehlke, 578 F.2d at
755. However, the Ninth Circuit has not defined the maximum
limits of the Corps’ jurisdiction under the Act. Jd. at 756. And it
is obvious from the statute and the definitions of Congress that
the Corps’ jurisdiction does not extend to dry land; it extends only
to that which is properly “waters of the United States.”
As stated, neither Congress nor the courts have defined the
term “waters of the United States.” The Corps has defined that
term in its regulations. 33 C.F.R. § 328. The regulation states that
its purpose is to define “the term ‘waters of the United States’ as
it applies to the jurisdictional limits of the authority of the Corps
of Engineers under the Clean Water Act.” 33 C.F.R. § 328.1.
The primary subsection with which we are concerned here is
§ 328.3, which defines the terms used to describe property subject
to the jurisdiction of the Corps. It is necessary to study some of
* Other regulations of the Corps, including the regulations dealing
with the issuance of permits if the Corps has jurisdiction, are contained
in 33 C.F.R. §§ 320-330.
A-28
this language in detail, and the applicable portions of the regula-
tions are set out below.
> § 328.3 Definitions.
(a) The term “waters of the United States” means
(1) All waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
(3) All other waters such as intrastate lakes, rivers, streams (includ-
ing intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds, the use, degrada-
tion 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 purpose by
industries in interstate commerce;
(7) Wetlands adjacent to waters (other than waters that are them-
selves wetlands) identified in paragraphs (a)(1) through (6) of this
section. ...
(b) The term “wetlands” means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
(c) The term “adjacent” means bordering, contiguous, or neighbor-
ing. Wetlands separated from other waters of the United States by man-
made dikes or barriers, natural river berms, beach dunes and the like are
“adjacent wetiands.” sate
(f) The term “tidal waters” means those waters that rise and fall in a
predictable and measurable rhythm or cycle due to the gravitational
pulls of the moon and sun. Tidal waters end where the rise and fall of the
water surface can no longer be practically measured in a predictable
rhythm due to masking by hydrologic, wind, or other effects.
A-29
The decisions to be made with respect to the regulations in this
case are primarily ones of fact. That is, giving the Act and the
regulations the broad interpretation defined by the U.S. Supreme
Court and the Ninth circuit, does the evidence establish that the
property is or is not within the definition of “waters of the United
States?”
Before discussing the evidence and the language, the court
notes that there are two conditions that clearly do not invoke the
Corps’ jurisdiction. First, land does not become a water of the
United States just because water collects, ponds, and stands on
land for a few days after a rain. Any land subjected to enough
temporary rainfall will collect water which stands until it runs off
or percolates into the ground. Such temporary collection of rain
does not convert the land to a water. Second, land does not
become a water of the United States simply because water drains
off of the land and ultimately—through ditches, culverts, rivers,
sewers, or the like—flows into waters of the United States. If such
drainage made land “waters: of the United States,” then all
property located on elevations, no matter how high, above a water
of the United States would become “waters of the United States.”
But drainage off of land is not enough to make it a water of the
United States. Not until flowing water becomes a “tributary” is it
deemed to be a water of the United States, 33 C.F.R.
§ 328.3(a)(5), and the Corps does not contend here that the
water that drains from Leslie’s land is a tributary.
The court turns now to an examination of the evidence and the
portions of 33 C.F.R. § 328.3 under which the Corps claims that
Leslie’s property is a water of the United States.
A. The Ebb and Flow of the Tide
The first is § 328.3(a)(1). That includes “‘all waters which are
subject to the ebb and flow of the tide.” 33 C.F.R. § 328.4(b)
provides that the tidal waters of the United States extend to the
high tide line. The same term is used in section 328.3(d).
It is clear from the evidence that virtually all of the Leslie’s
land lies above the high tide line. The property has never been
inundated by tides. The only portions that are subject to any ebb
and flow of the tide are low elevations in the ditches constructed
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by Caltrans, and certain small portions at the southernmost tip of
the parcel 10 and the southwestern tip of parcel 143. That water
gets there by backing up through one of the culverts running from
the wildlife refuge under Thornton Avenue.
The Corps concedes that its jurisdiction does not cover drain-
age ditches that are dug on dry land. Regulation section 328.3(f)
defines tidal waters as those that “rise and fall in a predictable and
measurable rhythm.” The tidal waters end “where the rise and
fall of the water surface can no longer be practically measured.”
Id. The court finds and concludes that the water that does reach
Leslie’s land is not tidal water. The water comes from the bay,
approximately two miles up Newark Slough, over the lands
flooded by the United States for the wildlife refuge, and through
culverts. The testimony of the government’s witness that there
might actually be tidal flow onto Leslie’s property was not
supported by sufficient objective data. And the court finds that
any tidal impact cannot be practically measured.
As stated above, the court also believes that the principle stated
in City of Fort Pierre, 747 F.2d at 467, is applicable here. That is,
it is primarily the flooded condition of the wildlife zefuge across
Thornton Avenue from Leslie’s property that results in the flow of
water through the culverts under the road. The evidence :s clear
that the property was not impacted by any inundation until the
construction of the culverts. And since the United States created
that condition by the flooding and maintenance of the wildlife
refuge, it cannot assert jurisdiction as a result of its maintenance
of that causal condition.
The court finds and concludes by a preponderance of the
evidence that the property is above the high tide line and is not
“subject to the ebb and flow of the tide.”
B. Isolated Waters or Wetlands
The second subsection under which the Corps asserts that a
portion of Leslie’s property is a water of the United States is
§ 328.3(a) (3):
(3) All other waters such as intrastate lakes, rivers,
streams (including intermitent streams), mudflats, sandfiats,
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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; or
(iii) Which are used or could be used for industrial
purpose by industries in interstate commerce;
This subsection has come io be called the “isolated” wetlands
or waters provision. The general thrust of this subsection is that
certain waters or wetlands may be waters of the United States
even though they are physically unconnected with other waters of
the United States. The jurisdictional nexus for including such
isolated waters within federal jurisdiction is stated in the three
subsections of (a)(3); that is, some connection with interstate
travel or commerce.
To establish that interstate connection here, the Corps relies
upon comments made about § 328.3(a) (3) in the Federal Regis-
ter where the Corps issued the final regulations. 51 Fed.Reg.
41,200, 41,217 (Nov. 13, 1986). The comments state that the
Corps adopts the definitions of the Environmental Protection
Agency,° which includes consideration of the use of the property
as habitat by migratory birds and endangered species. There was
evidence at trial that the property is occasionally used by migra-
tory birds, and one endangered species of mouse was found at one
location on the property. The Corps’ witnesses would extend that
jurisdiction not only to actual use by migratory birds, but also to
potential use. Leslie contends that Congress did not intend
migratory birds or endangered species to be “interstate com-
merce” under the Clean Water Act, and that even if it did, such
* And the Environmental Protection Agency's general counsel opinion
of November 19, 1985.
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an extension of jurisdiction would not be constitutionally
permissable.’ However, this court need not reach those questions.
Before the interstate commerce connections are considered
under the three subsections of (a) (3), the property must itself be
“other waters” as described in section (a)(3). The Corps con-
tends that the portions of the Leslie property which are such
“other waters” are the calcium chloride pits and the former
crystallizers during such periods as rainwater collects in them.
The listing of “other waters” in section (a)(3) includes “lakes,
rivers, streams...mud flats, sand flats...sloughs, prairie
potholes, wet meadows, palaya [sic] lakes, or natural ponds.*”
Giving those terms their common sense meanings, the court finds
that neither the crystallizers nor the calcium chloride pits are
“other waters.”
Even if the phrase “such as” in front of those terms is
interpreted, as it should be, to mean that the list is not exclusive,
the definition of “other waters” is still limited to items of the
same kind or class as those listed. See Weyerhaeuser Steamship
Co. v. United States, 372 U.S. 597, 600-01, 83 S.Ct. 926, 928-29,
10 L.Ed.2d 1 (1963); 2A Sutherland Statutory Construction
§ 47.17 at 103 (4th ed. 1973). The items listed are all natural
water conditions, and not artificially created structures.
The calcium chloride pits and former crystallizers were dug for
use in manufacturing salt. They are not natural water conditions
and are in fact dry most of the year. Even if the regulation is
interpreted as extending the definition to include artificially cre-
ated water bodies, the mere ponding of water on otherwise dry
land is not enough to convert that land into “other waters.”
This conclusion finds support in the Corps’ statements concern-
ing the regulations. The comments to the final regulations
promulgated in 1986 state, “For clarification it should be noted
that we do not consider the following waters to be “Waters of the
’ The U.S. Supreme Court, in Riverside Bayview Homes, 474 US. at
131 n. 8, 106 S.Ct. at 462 n. 8, expressly declined to rule on isolated
wetlands issues.
*“The definition also includes “wetlands,” which the court will
discuss below under that specific provision of the regulation.
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United States.’ . . . Artificial lakes or ponds created by excavating
and/or diking dry land to collect and retain water and which are
used exclusively for such purposes as stock watering, irrigation,
settling basins, or rice growing.” 51 Fed.Reg. 41,206, 41,217
(Nov. 13, 1986). The calcium chloride pits and former crystalliz-
ers are types of settling basins, and would not, under these
comments, be considered “waters of the United States” even if
they were still operating and holding quantities of brine. The same
conclusion is apparent when, as in recent years, water is no longer
being pumped onto the property.
The court therefore finds and concludes that Leslie’s properties
are not “other waters” under 33 C.F.R. § 328.3(a) (3).
C. Wetlands
The Corps contends that virtually all of Lesiie’s property is a
“water of the United States” because it is a “wetland.” The
Corps’ jurisdiction over wetlands is contained in 33 C.F.R.
§ 328.3(a)(7). “Wetlands adjacent to waters....” The term
“wetlands” is defined in section 328.3(b) as
those areas that are inundated or saturated by surface or
groundwater at a frequency and duration sufficient to sup-
port, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in satu-
rated soil conditions. Wetlands generally include swamps,
marshes, bogs, and similar areas.
Most of the evidence at trial focused upon whether Leslie’s
property meets that definition. Both sides generally agreed that in
making that decision, three primary indicators must be examined:
(1) the water on the property (“hydrology”’), (2) the condition of
the soils, and (3) the extent and nature of the plant life. Those
evaluations are made more difficult by the fact that the climate
has distinct rainy and dry seasons, and the observations will vary
depending upon when the indicators are examined.
The various and interrelated subportions of the definition of
“wetland” in section 328.3(b), and the evidence pertaining to
them, will be discussed below. However, by first looking at that
definition as a whole, it is apparent that the primary indicator is
A-34
the vegetation. That is, the land must be sufficiently wet for a
sufficient duration to support a prevalence of vegetation which is
typically adapted for life in saturated soils. Bare land does not
meet the definition. And vegetation does not do so unless there is
a prevalence of vegetation typically adapted for life in saturated
soils.
The first part of the definition requires that the area be
“inundated or saturated.”’'° It was clear from the testimony that
the property as a whole is not inundated or saturated by any tidal
or “wash” action. The source of inundation and saturation of this
property, if there is any, can only be rain. It was also clear that the
property could be called “inundated” only during and for a short
time immediately after winter rains.
The term “saturated” is not defined by the statute or the
regulations. But the witnesses appeared to agree on its definition;
that is, containing water to a point where the soil can hold no
more water and oxygen in the soil is shut out.
Experts on both sides conducted extensive tests of the hydrol-
ogy and of the soils to make a determination as to whether the
property is inundated or saturated. Various tests were used in an
attempt to measure the hydrology and degree of saturation. The
results of each of those tests, and the specific methods and
measures used by the experts, need not be discussed in detail. In
general, the studies included analyzing the type of soil, the,
amount of oxygen in the soil, the amount of water in the soil, the
color of the soil, and the amount of reduction of other chemicals.
Water has to be present in the vegetation root zone (by
whatever number of inches the depth of that zone is measured) in
* Some comment is appropriate regarding the term “vegetation.” The
testimony demonstrated that at certain times of the year algae or
alginates form on certain areas of the property. However, the witnesses
were unanimous in their conclusion that algae is not “vegetation.” That
term requires a morphological type of structure. And further, algae can
form in a wet condition in a matter of a few days.
'° It makes no difference in this definition whether the inundation or
saturation is by surface water or by ground water.
A-35
order for the area to be a wetland. The root zone of this property
reaches levels of saturation only during the rainy season. After the
runoff of each rain, the root zone is not saturated. Those conclu-
sions are true as to the property as a whole. They are also true as
to the crystallizers, whether examined before their plowing or
after, except that plowing did increase the temporary puddling of
rainwater. The Corps’ evidence did not establish the existence of
saturation in the root zone area.
The Corps also contends that certain soils on the property are
“hydric” by reason of their geological definition. That is, geolo-
gists use that term in describing certain types of soil. But that
definition generally pertained to soils in layers well below the root
zone, and to the wetness conditions when those layers were laid
down in long-past geological history. Use of the term “hydric
soils” does not really assist in a determination of whether the root
zone soil meets the requirements of the regulations.
The Corps also argues for application of the principle of
capillary rise; that is, water rises by capillary action from the
water table up into higher layers of the soils. The court is prepared
to accept this principle of physics. But the evidence was that even
capillary rise did not necessarily reach the soils in the root zone.
And indeed, even areas affected by capillary rise do not necessa-
rily reach a saturated condition.
The court finds from weighing and evaluating all of the evi-
dence, both percipient and expert, that the property is not “inun-
dated or saturated.”
After a rain that is heavy or long enough, any soil will become
temporarily saturated. But that is not enough for a determination
of wetland under the regulations. The regulations go on to state
that the saturation must be “at a frequency and duration”
sufficient to support a prevalence of vegetation typically adapted
for life in saturated soil conditions. 33 C.F.R. § 328.3(b). The
court finds from an evaluation of the evidence that there is not
such a frequency or duration. As stated, it is simply not enough
that rain water collect on property for a few days for that property
to become a water of the Untied States.
A-36
The next requirement under regulation 328.3(b) is that the
inundation or saturation be sufficient to support, and “under
normal circumstances” does support, relevant types of vegetation.
The U.S. Supreme Court has noted that this excludes upland
areas that for some aberrational reason have some wetland-type
vegetation. Riverside Bayview Homes, 474 U.S. at 130 n. 7, 106
S.Ct. at 461 n. 7. The Corps acknowledges that its jurisdiction
should not extend to “abnormal” conditions, but should pertain to
truly aquatic areas; see exhibits 205, 209, 574. The evidence of the
“normal circumstances” of the property again focused on the
hydrology, the soils, and the vegetation. The evidence included
both the present condition of the property and some recent
history. And again, the finding of “normal circumstances” is
made difficult by the seasonal nature of the rainfall.
It is clear that the eastern one-third of the property, both
historically and under present conditions, has been pastureland
supporting primarily upland and not wetland vegetation. The area
of the crystallizers was not able to support much vegetation of any
type, because it had been highly compacted and because its use in
the manufacture of salt resulted in very saline soil. This condition
was changed somewhat by the plowing of the crystallizers, which
made them more hospitable to plant life. However, even since
then the plant life has been sparse and has been limited in
duration to the rainy season. It is unclear whether the Corps
considers the “normal circumstances” to be before or after the
plowing. But in either event, the court finds that the salt crystal-
lizer area could not support the relevant types of vegetation under
normal circumstances.
Some areas of the crystallizers have been disturbed by the
Caltrans construction and by the construction of the sewer line,
leaving those areas in an altered condition. The court is willing, as
urged by the Corps, to consider those present conditions as
“normal” circumstances. Even so considered, the evidence com-
pels the conclusion that during the vast majority of the year there
is little or no vegetation on the crystallizer area.
Two areas in the southern corner of parcel 10 and in the
southwest corner parcel 143, as well as some of the Caltrans
ditches, do support vegetation of the relevant type. But circum-
A-37
stances in those areas are not “normal,” because the ability to
support vegetation was caused primarily by the government’s
flooding of the wildlife refuge across Thornton Avenue. And those
conditions in those very small areas, even if accepted as normal,
are not reflective of the normal circumstances of the property as a
whole.
The next requirement under regulation 328.3(b) is that the
property support a “prevalence of vegetation...” There is a
difference between the parties as to what the term “prevalence of
vegetation” means. Leslie interprets the requirement to mean that
in looking at the condition of the ground as a whole, there must be
a prevalence of vegetation. On the other hand, the Corps inter-
prets the phrase to mean that if there is any vegetation on the
land, all that is required is that the prevailing vegetation be of a
type which is adapted for life in saturated soil conditions. This
court believes that the Corps’ interpretation is not reasonable.
First, the Corps’ position would compel the conclusion that if
there were only one plant on a large parcel of ground, but if that
one plant were adapted for life in saturated soil, then the entire
parcel must be a wetland. That position defies the common sense
meaning of the word “wetland.” Second, the Corps’ interpretation
is contrary to its own guidance manual on making wetland
determinations. The manual requires that before determining the
issue of the type of vegetation, a finding must first be made that
vegetation is the predominate condition of the property. Indeed,
in other areas of the United States the Corps does not agree with
the interpretation being advanced as to “prevalence of vegetation”
in this case. Finally, the Corps’ interpretation appears contrary to
the definition of wetland in section 328.3(b) read as a whole.
When all the sub-clauses of 328.3(b) are read together, it is clear
that the predominate condition of the land must be vegetation,
and that the vegetation must be plants that can live in saturated
soil conditions.
Leslie contends that the prevalence requirement means that
fifty percent or more of the site has to be covered by vegetation.
This court need not set any exact percentage requirement for
prevalence, since it is clear from the evidence in this case that the
A-38
_ prevalence requirement has not been met under any reasonable
standard regarding the questioned portions of the property.
The court finds from the evidence that the salt crystallizer areas
have not and do not support a prevalence of vegetation. This
finding is based upon the testimony describing the property, the
historical condition of the property leading up to the “normal”
conditions of today, aerial photographs taken over a period of
years, and the fields [sic] notes and reports of the experts who
examined the area.'' There was no plant growth in the calcium
chloride pits. With respect to the crystallizers, it is clear even
from the Corps’ evidence that no plant life exists in some areas,
and in other areas plants cover only up to one percent of the
ground. And many of the plant types identified by the Corps live
only during the immediate rainy season and die shortly thereafter.
The Corps’ witnesses nevertheless testified that those plants were
adapted for an annual life cycle that includes dormancy during
long dry periods. However, this court questions whether plants
that are dead for as much as nine months of the year can meet a
“prevalence of vegetation” requirement.
The final clause in the definition of “wetland” requires that the
prevalent vegetation be of a type “typically adapted for life in
saturated soil conditions.” Botanists divide plants into roughly five
categories for purposes of determining such adaptation. Those
categories define the likelihood of a particular plant being found
in saturated soil conditions. They range from those which are
found in saturated conditions ninety-nine percent of the time, to
those which are not listed and hence are rarely if ever found in
saturated soil conditions. Whether a specific plant falls into a
particular category may depend upon who is preparing the list.
But there is a high degree of consistency in most of the lists.
The court heard extensive evidence on the types of plants found
on the property and the nature and characteristics of those plants.
On the eastern one-third of the property, the prevalent vegetation
'' At the time of the construction of the freeway, the U.S. Fish &
Wildlife Department urged that the highway interchange be put where it
is, in the middle of the former crystallizers, because that location for the
interchange was one of very low environmental impact.
A-39
is upland grasses which are typically not adapted for life in
saturated soil conditions. A few plants of a type which are
typically adapted to such soil conditions (either highly likely or at
least a positive indicator) were found during rainy. months in
certain of the plowed furrows in the former crystallizers and along
the Caltrans ditches. The damper areas on the southernmost tip
of parcel 10 and on the southwestern corner parcel 143 also
contained such plants.
The court finds from the evidence as a whole that Leslie’s
property does not contain a prevalence of vegetation which is
typically adapted for life in saturated soil conditions.
The court therefore finds from the evidence and from the
definition of “wetlands” in 33 C.F.R. § 328.3(b), that the Leslie
property is not inundated or saturated by surface or ground water
at a frequency and duration sufficient to support, and under
normal circumstances it does not support, a prevalence of vegeta-
tion typically adapted for life in saturated soil conditions. It is
therefore not a “wetland.”
For a wetland to be a “water of the United States,” there is an
additional requirement. The wetland must also be “adjacent to
waters” of the United States. 33 C.F.R. § 328.3(a) (7). The term
“adjacent” is defined by subparagraph (c) of section 328.3 of that
regulation. There was extensive testimony on.whether various
portions of Leslie’s property, if found to be wetlands, were
adjacent to waters of the United States. Since the court has
concluded the property is not wetland, this adjacency requirement
need not be discussed in detail.
Suffice it to say that the Corps’ contentions on adjacency were
built upon arguments using a jigsaw pattern of various areas of the
property which, if deemed to be wetlands, could be “adjacent” to
other areas of the property found to be waters of the United
States. Most of those contentions have now been resolved against
the Corps, because the contested areas were found not to be
waters or wetlands.
One of the arguments of the Corps for adjacency is based upon
the property that lies west of Thornton Avenue; that is, Newark
Slough and the wildlife refuge, which are connected to the Leslie
A-40
property by the culverts running under Thornton Avenue. The
court finds and concludes that even if portions of Leslie’s property
were found to be wetlands, the adjacency requirement has not
been satisfied. The reason is that the condition which created the
alleged wetland—that is, the flooding of the wildlife refuge and
the resulting backing of water through the culverts—was contrib-
uted to by the United States itself and cannot under City of Fort
Pierre, 747 F.2d 464, be considered in the adjacent wetlands
determination.
The court therefore finds and concludes that the property is not
a “water of the United States” as defined in 33 C.F.R. § 328, and
hence is not within the jurisdiction of the Corps under the Clean
Water Act.
. X. Estoppel
Leslie also asserts that the Corps is estopped from asserting
jurisdiction over the property. The argument is based upon actions
which the Corps either did or did not take at the time of the
Caltrans construction, the construction of the sewer, and the
condemnation and use of the wildlife refuge. However, since the
court has determined that the property is not “waters of the
United States,” and hence is not subject to the Corps’ jurisdic-
tion, the court need not consider this argument. The court is
therefore making no findings of fact and expressing no opinion on
Leslie’s argument of estoppel.
XI. ATTORNEYS FEES
Leslie has requested an award of attorneys fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). Since Leslie
is the prevailing party, that statute requires an award of attorneys
fees and expenses to Leslie unless this court finds that the position
of the United States was substantially justified or that special
circumstances make an award unjust. The “substantially justi-
fied”’ standard requires only that the government's position must
have been reasonable in law and fact. Pierce v. Underwood,
—_—_ US._-_, 108 S.Ct. 2541, 2549-51, 101 L.Ed.2d 490
(1988).
A-41
While the court believes that some of the government’s evi-
dence and arguments were not reasonable, the court nevertheless
concludes that the government’s position as a whole was substan-
tially justified and that special circumstances make an award to
Leslie unjust. The Corps was motivated by a good faith concern
for the objectives of Congress and for the Bay Area ecosystem. It
was attempting to act in the public interest. The property has a
high commercial value, and the amounts expended in this litiga-
tion are a very small percentage of its potential value. The
government’s evidence, although not meeting the burden of per-
suasion, does meet the burden of substantial justification for the
action as a whole. The court therefore declines to award attorneys
fees and expenses to Leslie, although Leslie is of course entitled
to recover its costs of suit.
IT IS THEREFORE ORDERED that judgment should be
entered as follows:
1. Tne Corps has no jurisdiction over the subject property
under Section 10 of the Rivers and Harbors Act, because the
property is not a “navigable water of the United States” within
the meaning of the Rivers and Harbors Act or the regulations
promulgated under that Act.
2. The Corps has no jurisdiction over the subject property
under section 404 of the Clean Water Act, because the property is
not a “water of the United States” within the meaning of the
Clean Water Act or the regulations promulgated under that Act.
3. Leslie’s work on the property did not and does not consti-
tute a violation of the Rivers and Harbors Act or the Clean Water
Act, and did not and does not require a permit from the Corps of
Engineers.
4. In favor of plaintiff and against defendants and intervenors
in action No. C-85-8615.
5. In favor of defendants and against plaintiffs in action No.
C-86-4187.
Within fifteen (15) days of this order, Leslie is to submit to the
court, and serve on the Corps, a proposed form of judgment that
conforms to this opinion.
A-42
Appendix C
United States Court of Appeals
For The Ninth Circuit
Leslie Salt Co., a Delaware corpc ration,
Plaintiff-Appellee,
v.
United States of America, et al.,
Defendants,
and
Save San Francisco Bay Association,
a non-profit California corporation;
National Audubon Society,
a non-profit New York corporation,
Defendant-Intervenors-Appellants.
United States of America,
Plaintiff-Appellant,
v.
Leslie Salt Co., a Delaware corporation; and
Cargill, Inc., a Delaware corporation,
Defendants-Appellees.
CA No. 89-15244
DC Nos.:
CV-85-8615-CAL
CV-86-4187-CAL
(Northern California)
ORDER
CA No. 89-15337
DC Nos.:
CV-85-8615-CAL
CV-86-4187-CAL
Before: FARRIS, PREGERSON, and RYMER, Circuit
Judges:
The panel as constituted in the above case has voted to deny
the petition for rehearing and to reject the suggestion for rehear-
ing en banc.
A-43
The full court has been advised of the suggestion for an en banc
hearing, and no judge of the court has requested a vote on it. Fed.
R. App. P. 35(b).
The petition for rehearing is denied and the suggestion for a
rehearing en banc is rejected.
A-44
Appendix D
(Statutory and Regulatory Provisions Involved)
1. Section 301(a) of the Clean Water Act, 33 U.S.C.
1311(a), provides as follows:
Except as in compliance with this section and sections
1312, 1316, 1317, 1328, 1342, and 1344 of this title, the
discharge of any pollutant by any person shall be unlawful.
2. Section 404(a) of the Clean Water Act, 33 U.S.C.
1344(a), in relevant part, provides as follows:
The Secretary may issue permits, after notice and oppor-
tunity for public hearings for the discharge of dredged or fill
material into the navigable waters at specified disposal sites.
3. Sections 502(7) and 502(12) of the Clean Water Act, 33
U.S.C. 1362(7) and 1362(12), provide as follows:
Except as otherwise specifically provided, when used in
this chapter:
* * * & *
(7) The term “navigable waters” means the waters of the
United States, including the territorial seas.
* * * *&
(12) the term “discharge of a pollutant” and the term
“discharge of pollutants” each means (A) any addition of
any pollutant to navigable waters from any point source,
(B) any addition of any pollutant to the waters of the
contiguous zone or the ocean from any point source other
than a vessel or other floating craft.
4. 33 C.F.R. § 328.3(a)(3) provides as follows:
For the purpose of this regulation these terms are defined as
follows:
(a) The term “waters of the United States’’ means
* * * . *
A-45
(3) all other waters such as intrastate lakes, rivers,
streams (including intermittent streams), mudflats, sand-
flats, 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; or
(iii) Which are used or could be used for industrial
purpose by industries in interstate commerce;
5. 51 Fed.Reg. 41217 (Nov. 13, 1986) includes the following
comment:
EPA has clarified that waters of the United States at 40*
CFR 328.3(a)(3) also include the following waters:
a. Which are or would be used as habitat by birds pro-
tected by Migratory Bird Treaties; or
b. Which are or would be used as habitat by other
migratory birds which cross state lines; or
c. Which are or would be used as habitat for endangered
species; or
d. Used to irrigate crops sold in interstate commerce.
* Presumably should be 33 C.F.R.
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Appendix E
Department Of The Army
U.S. Army Corps of Engineers
Washington, D.C. 20314-1000
24 Jan 1990
Reply to
Attention of:
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 Engi-
neers/Environmental Protection Agency memorandum was de-
veloped to provide guidance on the regulation of isolated waters
pending completion of rulemaking on this subject.
?. 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:
Encl
JOHN P. ELMORE
Chief, Operations, Construction and
Readiness Division
Directorate of Civil Works
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1. On September 22, 1989, in an unpublished opinion, the
United States Court of Appeals for the Fourth Circuit held that
the Corps of Engineers may not rely upon memoranda issued on
November 8, 1985, and February 11, 1986, by Brigadier General
Kelly, then Deputy Director of Civil Works, to assert jurisdiction
over isolated waters under section 404 of the Clean Water Act.
Tabb Lakes v. United States, (No. 89-2905, 4th Cir.). This
memorandum provides direction on the continued assertion of
jurisdiction over isolated waters, as required by 33 CFR
328.3(a)(3), in the wake of the 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, wet-
lands, 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; or
(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 inter-
pretive 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
interpretive guidance in making a jurisdictional determination
because the guidance was a substantive rule that should have
been, but was not, proposed for public comment prior to its
OO
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adoption by the agencies. The United States does not intend to
appeal the Fourth Circuit’s Tabb Lakes decision. Instead, the
EPA and the Corps intend to undertake as soon as possible an
APA rulemaking process regarding jurisdiction over isolated wa-
ters. This memorandum provides guidance on how Corps FOAs
and EPA Regional Offices should continue to assert CWA
jurisdiction over isolated waters in light of the Court of Appeals
decision in Tabb Lakes, and pending completion of the rulemak-
ing process.
3. The United States believes that the Fourth Circuit’s Tabb
Lakes decision was incorrect and we reserve tle right to re-litigate
the legal questions decided in the Tabb Lakes case in other
circuits. Because this decision is not binding on courts outside of
the Fourth Circuit, we will not implement the decision outside the
area constituting the Fourth Circuit (i.e., outside the states of
South Carolina, North Carolina, Virginia, West Virginia, and
Maryland).
4. Within the Fourth Circuit, we will follow the holding of
Tabb Lakes, which was limited to the proceedural notice-and-
comment issue discussed above. Thus, within the Fourth Circuit,
we will not reiy upon or cite the above-referenced memoranda in
making jurisdictional determinations. However, we will continue
to assert jurisdiction, as required by the “waters of the United
States” regulatory definition, over all waters, the use, degradation
or destruction of which could affect interstate or foreign com-
merce, as is required by our existing regulations adopted through
the Administrative Procedure Act rulemaking process. Corps
FOAs and EPA Regions will apply this regulatory definition to
each site on a case-by-case basis, and will evaluate all available
information in a manner consistent with the language of the
regulations and the expressed Congressional intention that Clean
Water Act jurisdiction be exercised over all waters to the fullest
extent legally permissible under the Commerce Clause of the
Constitution.
5. The following applies to CWA jurisdiction over all isolated
waters within the Fourth Circuit. The definition of “waters of the
United States” at 53 CFR 328.3(a) (3) was promulgated through
the APA rulemaking process and remains in full force and effect
a a Se
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notwithstanding the Tabb Lakes decision. This definition encom-
passes “isolated” waters, including isolated wetlands, since it
specifically cites as examples of jurisdictional waters “. . . prairie
potholes, wet meadows, [and] playa lakes...”, all of which are
normally “isolated.” We fully intend to implement the Tabb
Lakes decision within the Fourth Circuit; however, we interpret
that decision as allowing the Corps and EPA to continue to assert
CWA jurisdiction over isolated waters. Accordingly, we expect
Corps FOAs and EPA Regional offices within the Fourth Circuit
to continue to regulate isolated waters, including isolated wet-
lands, 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. Ste
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