# Petition for Writ of Certiorari — Baccarat Fremont Developers, LLC v. United States Army Corps of Engineers (No. 06-619)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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OFFICE OF THE Ci ERx

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IN THE

Supreme Court of the United States

BACCARAT FREMONT DEVELOPERS, LLC.
Petitioner,
i

UNITED STATES ARMY CORPS OF ENGINEERS:
LT. COL. TIMOTHY S. O° ROURKE, DISTRICT-ENGINEER.
SAN FRANCISCO DISTRICT.
Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID H. BLACKWELL
Counsel of Record
ROBERT R. MOORE
JAMES T. BURROUGHS
ALLEN MATRKINS LECK GAMBLE
MALLORY & NATSIS LLP
Three Embarcadero Center
12th Floor
San Francisco. California 94111
(415) 837-1515

Counsel for Petitioner

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

QUESTION PRESENTED

Is petitioner, whose action challenging a United States
Army Corps of Engineers wetlands jurisdictional determi-
nation was pending when this Court issued its decision in the
consolidated cases Rapanos v. United States and Carabell v.
United States Army Corps of Engineers, _ U.S. _, 1265S.
Ct. 2208, 165 L. Ed. 2d 159 (June 19, 2006) (collectively,
“Rapanos’’), entitled to a redetermination, conducted in ac-
cordance with the principles announced in Rapanos, of the
existence or absence of federal jurisdiction over _petitioner’s
wetlands?

(1)

il

RULE 29.6 CORPORATE DISCLOSURE STATEMENT

Petitioner Baccarat Fremont Developers, LLC (“Baccarat”)
hereby states that it is a California limited liability company,
with no parent corporation, and that no publicly held com-
pany owns 10% or more of Baccarat’s stock.

TABLE OF CONTENTS

Page
QUESTION PRESENTED............c:ccsccsecseseserseeeseeenees i
RULE 29.6 CORPORATE DISCLOSURE
STATEMENT cnceccevecescorcorssservencesectiesveerssesansvsnivestonngs ll
TABLE OF AUTHORITIEG..................cocsssorcessereseseores Vv
GCPINIONS BELOW ...ccsvcsiesseccesessessacsnenscorrvessesdtensesovine I
FUT TIN ecevecscvinnscocssnssvsesonvsorepenecesseveveninensecieees 2
STATUTORY AND REGULATORY PROVISIONS
POT TG oo casienersrcersoiomnncesonsisccssntnenremmnvataucnssnronernts 2
ENT TRODIUIC TION ..nocovsccccsescorsencsosersvcccnctvensncesnnceoersererse 4
STATEMENT OF THE CASE .............ccccsesssseseeceeseeeoes 6
A. The Baccarat Wetlands ...............ccereseoreerersreverses 6
B. The Administrative Decisions..............:::cceeeeeree 7
C. The District Court Decision..............-.ccseccssereesees 9
D. The Ninth Circuit Opimion................. ee eeeeeeereeees 9
E. Deferral of Rehearing...................-ccccccesssversesonesors 10
F. Rapanos and Carabelll ..........ccccccccccseserseseeessteees 1]
G. Denial of Rehearing.and Stay of Mandate........... 13
REASONS FOR GRANTING THE PETITION FOR
WRIT OF CERTIORARL ......2..‘sion from which the administrative appeal was
taken, are shed as App. D and App. E, respectively.

JURISDICTION

The judgment of the Court of Appeals for the Ninth Circuit
was entered on October 14, 2005. After obtaining an
extension of time to December 5, 2005, to file a rehearing
petition, App. F, Baccarat timely submitted a petition to the
Court of Appeals for rehearing and rehearing en banc. App.
G (order confirming receipt of petition on December 5,
2005). On December 22, 2005, the Court of Appeals issued
an order deferring consideration of the rehearing petition
pending this Court’s review of the Sixth Circuit Court of
Appeals’ decision in Carabell v. United States Army Corps of
Engineers, 391 F.3d 704 (6th Cir. 2004), cert. granted, _
US. __, 126 S. Ct. 415 (2005). See App. G. The Ninth
Circuit subsequently denied Baccarat’s rehearing petition on
August 3, 2006, App. H, and denied a request for stay of
mandate on August 17, 2006, App. I. This petition is timely
filed pursuant to Rule 13.3 of the Rules of the Supreme
Court. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1254(1).

STATUTORY AND REGULATORY
PROVISIONS AT ISSUE

The Clean Water Act (“CWA”) provides in pertinent part:

Except as in compliance with this section and section ]
. . . 1344 of this title, the discharge of any pollutant by
any person shall be unlawful.

33 U.S.C. § 1311(a) (CWA § 301(a)).

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.

33 U.S.C § 1344(a) (CWA § 404(a)).

3

(7) The term “navigable waters” means the waters of the
United States, including territorial seas.

33 U.S.C. § 1362(7) (CWA § 502(7)).
Federal regulations define “waters of the United States” as:

(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;

(2) All interstate waters, including interstate wetlands;

(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:

(1) Which are or could be used by interstate or foreign
travelers for recreational or other purposes; or

(1i) From which fish or shellfish are or could be taken
and sold in interstate or foreign commerce; or

(111) Which are used or could be used for industrial
purpose by industries in interstate commerce;

(4) All impoundments of waters otherwise defined as
waters of the United States under the definition;

(5) Tributaries of waters identified in (a)(1) through (4)
of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that
are themselves wetlands) identified in paragraphs (a)(1)
through (6) of this section.

33 C.F.R. § 328.3(a) (2005).

4
_Federal regulations define “adjacent” as:

The term adjacent means bordering, contiguous, or
neighboring. 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
wetlands.”

33 C.F.R. § 328.3(c) (2005).

INTRODUCTION

Baccarat seeks review of the judgment below because the
standard applied by the Court of Appeals for assertion by the
Corps of regulatory jurisdiction over Baccarat’s wetlands
cannot be reconciled with principles this Court announced in
Rapanos.' Because those principles must be applied in this
case, certiorari should be granted and the judgment should be
reversed or vacated and the matter remanded for a redeter-
mination of federal jurisdiction in accordance with the
Rapanos decision.

Baccarat owns a tract of land in the City of Fremont, Cali-
fornia that contains some seasonally wet depressions (“wet-
lands”). The Corps claims jurisdiction to regulate these
wetlands under the Clean Water Act. 33 U.S.C. §§ 1251 et
seq. (2003) (“CWA”). The Corps determined that it had
regulatory jurisdiction on the theory that the wetlands are
“adjacent” to “waters of the United States.” The District
Court and, thereafter, the Court of Appeals, affirmed the
Corps’ assertion of adjacent wetlands jurisdiction. The Court
of Appeals held that the Corps has jurisdiction over any

' Rupanos involved two separate Sixth Circuit cases consolidated for
review in this Court. The two cases were United States v. Rapanos, 376
F.3d 629 (6th Cir. 2004), cert. granted, US. __, 126 8. Ct. 414 (2005),
and Carabell v. United States Army Corps of Engineers, 39\ F.3d 704
(6th Cir. 2004), cert. granted, U.S. _ , 126 S. Ct. 415 (2005). In this
petition the Sixth Circuit's opinion in Carabell shall be referred to as
“Carabell I.”

5

wetlands that qualified under Corps regulations as “adjacent”
to “navigable waters,” 33 C.F.R. § 328.3(a)(7) (2005), even
in the absence of a significant hydrological or ecological
connection between the wetlands and the navigable
waterway. In so holding, the Court of Appeals observed that
the facts of this case are “remarkably similar” to the facts
analyzed by the Sixth Circuit Court of Appeals in Carabell /.
In its decision affirming the Corps’ assertion of jurisdiction,
the Ninth Circuit applied essentially the same broad juris-
dictiona) standard that the Sixth Circuit applied in Carabell I.
App. A, }la-12a. In further recognition of the parallels be-
tween the two cases, the Ninth Circuit deferred its resolution
of petitioner’s rehearing request pending the outcome of this
Court’s review of Carabell /. The rule of decision estab-
lished by this Court in Carabell was, therefore, to be the rule
of decision for Baccarat. :

In Rapanos, a divided Supreme Court vacated the Sixth
Circuit’s decisions in Carabell I and in United States v.
Rapanos, 376 F.3d 629 (6th Cir. 2004), cert. granted, _ US.
__, 1268S. Ct. 414 (2005). Five Justices rejected the basis upon
which the Sixth Circuit had affirmed the Corps’ assertion of
wetlands jurisdiction in these cases. Both cases, Rapanos as
well as Carabell, were remanded for further proceedings.

So, too, should this case be remanded for a redetermina-
tion, in light of the principles enunciated in Rapanos, of the
existence of a basis for asserting federal jurisdiction over the
Baccarat wetlands. Having deferred its ruling on Baccarat’s
rehearing petition pending this Court’s review of Carabeill J,
the Ninth Circuit could have accomplished this necessary
result by granting rehearing. Instead, without comment or
indication that it had considered the petition, the Court of
Appeals denied rehearing.” Baccarat’s sole recourse, there-

* The Ninth Circuit’s order denying rehearing was a summary denial.
App. H, Sla-52a. As such, under Ninth Circuit practice, the order cannot
be read to imply any views of the Court of Appeals on the merits of the

6

fore, lies with this Court. Baccarat urges the Court to grast
certiorar) and reverse or vacate the Ninth Circuit’s decision
and remand this case for further proceedings.

STATEMENT OF THE CASE
A. The Baccarat Wetlands.

This case arises out of the Corps’ assertion of regulatory
jurisdiction under the CWA over wetlands located on Bacca-
rat’s property. The Corps claims that these wetlands are
“adjacent” to other waters that it may regulate under the
CWA, and that they therefore qualify as jurisdictional “waters
of the United States” as the Corps defined that term in its
regulations at 33 C.F.R. § 328.3(a).

At issue are a combined 7.18 acres of wetlands scattered
throughout Baccarat’s 30.98 acre project site. App. B, 15Sa-
16a. Two flood control channels that ultimately connect to
the San Francisco Bay are located, at the closest point,
approximately 65-70 feet away from the southem and western
boundaries of the roughly rectangular projec: site. App. A,
3a.. The Alameda County Flood Control District (“ACFCD”)
maintains and operates these flood control channels. Two
sets of berms separate the wetlands from the flood control
channels. One set of man-made berms borders the southern
and western project site boundaries. App. A, 2a-3a. Addi-
tionally, berms located on the adjoining flood control prop-
erty owned by ACFCD separate the project site from the
flood control channels, and a maintenance road sits atop these

petition. United States v. Cote, 5\ F.3d 178, 181 (9th Cir. 1995) (“sum-
mary denial of the petition” “does not imply any judgment on the merits”
of a request in the petition where the denial “does not indicate the court
considered and decided the issue . . . .”); see also Luckey v. Miller, 929
F.2d 618, 622 (11th Cir. 1991) (‘a summary denial of rehearing en banc 1s
insufficient to confer any implication or inference regarding the court's
opinion relative to the merits of a case”), quoted in Cote, supra, 51 F.3d
at 181.

7

flood control channel berms. App. B, 16a. It is not disputed
that the ACFCD flood control channels contain waters of the
United States. App. A, 7a. If the berms were removed, the
wetlands would connect to the flood control channels. App.
A, 3a.

B. The Administrative Decisions.

In February 1998, following a request by Baccarat for a
jurisdictional determination, the Corps determined that it had
CWA jurisdiction over the wetlands on the project site.’ App.
A, 3a. That same month, Baccarat submitted a permit
application to fill 2.36 acres of the delineated wetlands to the
Corps under Section 404 of the CWA (33 U.S.C. § 1344). Id.
On January 29, 2001, before the Corps issued its decision on
the permit application, Baccarat asked the San Francisco
District of the Corps (“District”) to reconsider its jurisdic-
tional determination in light of this Court’s decision earlier
that month of January in Solid Waste Agency of Northern
Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001)
(“SWANCC”). Id. By letter dated May 8, 2001, the District
reaffirmed its jurisdictional determination, claiming that the
wetlands were “adjacent to a tidal flood control channel.”
App. E, 45a. In support of this determination, the District
found that the flood control channel “is located within 250
feet of the site’s western and southern boundaries.” /d., at
45a-46a. The District also relied upon its regulatory defi-
nition of “adjacent,” which states: “Wetlands separated from
other waters of the United States by man-made dikes or bar-
riers, natural river berms, beach dunes, and the like are
‘adjacent wetlands.’” 33 C.F.R. § 328.3(c) (the “Barriers

* The Corps found 7.66 acres of jurisdictional wetlands on the project
site, 7.18 acres of which are contested by Baccarat. The remaining 0.48
acres of wetlands have always been conceded to be jurisdictional under
the CWA because of their surface hydrological connection to tidal waters.
App. B, 16a

8

Regulation”). /d. Finally, the District noted that “the wet-
lands would flow into the channel in storm events, if not for
the man-made barriers.” Jd.

Baccarat appealed the District’s reaffirmed assertion of
jurisdiction to the Corps’ South Pacific Division (“Division”).
App. A, 3a. In its “Administrative Appeal Decision” dated
October 25, 2001, the Division remanded the jurisdictional
determination to the District “to reconsider and further docu-
ment and/or modify its conclusiot.s regarding which wetlands
on the project site are adjacent to jurisdictional waters of the
United States.” App. C, 26a. The Division found fault with
the District’s failure to document sufficiently why a 250-foot
separation between wetlands and other waters meets the
adjacency standard. The Division further found irrelevant the
District’s speculation regarding what might happen if the
intervening barriers (the berms) were removed. Finally, the
Division observed that while the intervening barriers do not
necessarily extinguish adjacency jurisdiction under the Barri-
ers Regulation, neither do they establish it. App. C, 32a-33a.

On January 28, 2002, the District decided, on remand, to
reaffirm its assertion of jurisdiction over the wetlands. App.
D, 37a-38a. Notwithstanding the Division’s findings and
instructions, the District (1) reasserted its reliance on the
Barriers Regulation, (2) stated that “it is recognized in the
courts that adjacency includes the concept of reasonable prox-
imity,” but failed to heed the Division’s instructions that it
cite any evidence in the record supporting the assertion of
jurisdiction on the basis of a “reasonable proximity” standard,
(3) stated a conclusion that the wetlands “contribute to the
improved quality of the aquatic environment in gencral
and the tidal waters in the immediate vicinity in particular,”
(4) cited a report which found that restoration of wetland
habitat in the general geographic vicinity of the Baccarat
wetlands—but not the project site itself—would have
ecological benefits, (5) asserted that the wetlands are within
the 100 year floodplain of a jurisdictional waterbody, and

9

(6) cited a soil survey showing that “most of the subject
wetlands” share the same type of soils as those of the tidal
waters in the same general area. App. D, 39a-43a.

On February 6, 2002, the Corps proffered a permit to
Baccarat to fill 2.36 acres of wetlands on the project site, with
the condition that the remaining 5.3 acres of wetlands be
enhanced and preserved. App. A, 4a. Baccarat accepted the
proffer subject to reservation of its right to seek judicial
review of the Corps’ jurisdictional determination. /d. The
permit was issued on March 1, 2002. Id.

-C. The District Court Decision.

Baccarat subsequently filed the instant action against the
Corps in the United States District Court for the Northern
District of California, seeking a declaration that the Corps
lacked jurisdiction to regulate its wetlands. On August 11,
2003, the District Court granted the Corps’ motion for sum-
mary judgment, affirming the Corps’ assertion of jurisdiction,
and holding that the “Corps’ regulatory jurisdiction over adja-
cent wetlands under the Clean Water Act does not depend on
the existence of an actual hydrological or ecological connec-
tion between the wetland and navigable waters.” App. B,
22a. The District Court entered judgment in favor of the
Corps accordingly.

D. The Ninth Circuit Opinion.

Baccarat appealed the District Court’s judgment to the
Ninth Circuit. On October 14, 2005, the Ninth Circuit af-
firmed, holding that the “Corps” jurisdiction over wetlands
falling within the adjacency clause in 33 C.F.R. § 328.3(a)(7)
does not depend on the existence of a significant hydrological
or ecological connection between the particular wetlands at
issue and waters of the United States.” App. A, Ila, 13a.
The Ninth Circuit found support in the Sixth Circuit’s opinion
in Carabell 1, an opinion which this Court had agreed to

10

review three days before the filing of the Ninth Circuit’s
opinion below. The facts of Carabell, as the Ninth Circuit
observed, are “remarkably similar to the facts here.” App. A,
Ila. In both cases, the wetlands at issue were separated from
ditches or channels by man-made berms or barriers, and in
both cases the courts relied upon the Corps’ regulatory
definition of “adjacent” wetlands, which provides, in part,
that “[w]etlands separated from other waters of the United
States by man-made dikes or barriers, natural river berms,
beach dunes and the like are ‘adjacent wetlands.’” 33 C.F.R.
§ 328.3(c). App. A, 7a (Ninth Circuit opinion below);
Carabell J, 391 F.3d at 708. In both cases, moreover, the
Courts of Appeals concluded that the Supreme Court’s
decision in SWANCC did not limit the scope of the Corps’
assertion of jurisdiction over adjacent wetlands to those in
which the Corps made findings of a significant hydrological
or ecological connection to navigable waters. Such juris-
dictional assertions, the Courts of Appeals held, were ap-
proved by this Court in United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121 (1985), and SWANCC did not
change that. App. A, 10a-1 1a; Carabell /, 391 F.3d at 709.

In a one-paragraph coda to its opinion, the Ninth Circuit
added a fallback position, citing five “findings” by the Corps
and remarking, “we cannot hold that these findings are arbi-
trary or capricious, as would be required to set them aside
under the APA,” citing Marsh v. Oregon Natural Resources
Council, 490 U.S. 360, 376-77 (1989). “Taken together,” the
Court of Appeals wrote, “the Corps’ findings would be more
than sufficient to establish a significant nexus between the
wetlands on the site and the flood control channels, were such
a showing required.” App. A, 13a.

E. Deferral of Rehearing.

On October 11, 2005, three days before the Ninth Circuit
issued its decision in this case, this Court granted petitions for
writs of certiorari in the Rapanos and Carabell cases. __ U.S.

1]

__, 1268. Ct. 414, 415 (2005). On December 5, 2005, after
receiving an extension of time to seek rehearing, Baccarat
timely filed a petition for rehearing and for rehearing en banc.
App. F, 48a; App. G, 49a. On December 22, 2005, the Ninth
Circuit announced that it would defer ruling on the rehearing
petitions pending this Court’s final decision in Carabell.
App. G, 49a-50a.

F. Rapanos and Carabell.

On June 19, 2006, this Court decided the consolidated
cases in Rapanos, vacating both Sixth Circuit judgments and
remanding both cases for further proceedings. Rapanos, _
U.S. _, 126 S. Ct. 2208. In the plurality opinion, Justice
Scalia (joined by Chief Justice Roberts, Justice Thomas, and
Justice Alito) concluded that a “continuous surface [water]
connection” between wetlands and other “waters of the
United States” must exist in order for the Corps properly to

assert jurisdiction over adjacent wetlands. Rapanos, 126 S.
Ct. at 2226.

Concurring in the judgment, Justice Kennedy wrote that
jurisdiction over adjacent wetlands requires a “significant
nexus between the wetlands in question and navigable waters
in the traditional sense.” /d., at 2248, (Kennedy, J., con-
curring in the judgment). “[{WJetlands possess the requisite
nexus, and thus come within the statutory phrase ‘navigable
waters,’ if the wetlands, either alone or in combination with
similarly situated lands in the region, significantly affect the
chemical, physical, and biological integrity of other covered
waters more readily understood as ‘navigable.’ When, in
contrast, wetlands’ effects on water quality are speculative or
insubstantial, they fall outside the zone fairly encompassed by
the statutory term ‘navigable waters.”” /d.

Justice Kennedy joined the plurality’s disposition of the
cases, that is, to vacate the judgment .nd remand them for
further proceedings. /d. at 2252. Proceedings on remand

12

based on Justice Kennedy’s opinion would, however, differ
from those based on the plurality opinion. In Carabeil, the
Corps had made certain findings regarding the relationship
between the wetlands and navigable waters; the District Court
had concluded that the Carabell property, by virtue of its
adjacency to navigable waters, had “a significant nexus to
‘waters of the United States;’” Carabell I, 391 F.3d at 707;
and the Sixth Circuit had found “no error in the District
Court’s decision.” /d., at 710. In Justice Kennedy’s view,
however, the Corps’ factual findings, while relevant to the
jurisdictional inquiry, contained “conditional language” that
“could suggest an undue degree of speculation, and a review-
ing court must identify substantial evidence supporting the
Corps’ claims... .” Rapanos, 126 S.Ct. at 2251 (Kennedy, J.,
concurring in the judgment). Furthermore, Justice Kennedy
observed, “. . . the record gives little indication of the quantity
and regularity of flow in the adjacent tributaries,” and “the
legal standard applied to the facts was imprecise.” /d. There-
fore, Justice Kennedy recommended that the matter be re-
manded for a “more specific inquiry, based on the significant
nexus standard.” “{A] remand is again required to permit
application of the appropriate legal standard.” /d., at 2252."

* Justice Kennedy suggested one exception to the requirement that a
significant nexus be demonstrated on a case-by-case basis. This exception
would apply when wetlands are adjacent to waters that are navigable in
the traditional sense, that is, “navigable in fact, or susceptible of being
rendered so.” Rapanos, 126 S. Ct. at 2220 (Scalia, J.), citing The Daniel
Ball, 77 U.S. 557, 10 Wall. 557 (1871). For those adjacent wetlands,
according to Justice Kennedy, “showing adjacency alone” may suffice to
support jurisdiction under the CWA. Rapanos, 126 S. Ct. at 2248 (Ken-
nedy, J., concurring in the judgment). In this case, however, neither the
Ninth Circuit nor the District Court found the Baccarat wetlands to be
adjacent to navigable-in-fact waters. Rather, the wetlands are at least 65
feet removed from the ACFCD flood control channels. The flood contro!
channels are acknowledged in this case to be jurisdictional “waters of the
United States” for CWA purposes, App. A, 7a, but there is no finding and

13
G. Denial of Rehearing and Stay of Mandate.

On August 3, 2006, the Ninth Circuit summarily denied,
without comment, Baccarat’s petitions to the Ninth Circuit
for rehearing and rehearing en banc. App. H, 51a-52a. On
August 17, 2006, the Ninth Circuit denied a request by
Baccarat for a stay of mandate. App. I, 53a. This petition
followed.

REASONS FOR GRANTING
THE PETITION FOR WRIT OF CERTIORARI

I. THE COURT SHOULD GRANT THIS PETI-
TION BECAUSE THE NINTH CIRCUIT COURT
OF APPEALS HAS DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW UNDER THE
CLEAN WATER ACT IN A WAY THAT
CONFLICTS WITH RELEVANT DECISIONS
OF THIS COURT.

A. The Ninth Circuit’s standard for CWA juris-
diction over “adjacent” wetlands fails to
comport with the standard for such jurisdiction
recently announced by this Court in Rapanos.

The Ninth Circuit’s principal holding below was that a
“significant hydrological or ecological connection” between a
wetland and navigable waters is nor required by the CWA for
the Corps to assert jurisdiction over the Baccarat wetlands.
App. A, lla. Instead, according to the Ninth Circuit, it is
enough that the wetland be found by the Corps to “fall within
the adjacency clause in 33 C.F.R. § 328.3(a)(7).” /d., at 10a.
No findings are required showing that the wetlands are “sig-
nificantly intertwined” with navigable waters. J/d., at 9a-10a.

no evidence that they are navigable-in-fact. Thus. the exception has no
application here.

14

In fact, no “case-by-case” proof of a nexus is required at all.
Id, at 13a.

Rapanos invalidates the Ninth Circuit’s principal holding
in this case. In Rapanos, five Justices squarely rejected this
standard for jurisdictional] adjacency, albeit for different rea-
sons. As stated in the plurality opinion, written by Justice
Scalia, “only those wetlands with a continuous surface con-
nection to bodies that are ‘waters of the United States’ in their
own right, so that there is no clear demarcation between
‘waters’ and wetlands, are ‘adjacent’ to such waters and
covered by the Act.” Rapanos, 126 S. Ct. at 2226. Under
any view of the facts in Baccarat, there is no continuous
surface hydrological connection between the Baccarat
wetlands and the flood control channels located at least 65
feet away. App. A, 3a. Thus, under the plurality’s standard
for jurisdictional adjacent wetlands, there can be no CWA
jurisdiction over the Baccarat wetlands.

Nor can the Ninth Circuit’s standard for assertion of CWA
jurisdiction be reconciled with Justice Kennedy’s views as
articulated in his separate opinion concurring in the Rapanos
judgment. Justice Kennedy interpreted the CWA and the
Court’s case law to require the Corps to establish a “signifi-
cant nexus” on a “case-by-case” basis in order to assert
adjacency jurisdiction. Rapanos, 126 S. Ct. at 2249 (Ken-
nedy, J., concurring in the judgment). This is the very
standard that the Ninth Circuit emphatically rejected below.
The inquiry, moreover, is not to be a superficial one. As
Justice Kennedy stated, if “wetlands effects on water quality
are speculative or insubstantial, they fall outside the zone
fairly encompassed by the statutory term “navigable waters.’”
Id., at 2248. Contrary to the Ninth Circuit's ruling in Bac-
carat, “mere adjacency . .°. is insufficient” to establish juris-
diction. /d., at 2252.

By finding that the Corps’ jurisdiction over “adjacent” wet-
lands does not depend on the existence of a significant hydro-

15

logical or ecological connection between the wetlands and
the navigable waters subject to federal regulatory jurisdiction
under the CWA, the Ninth Circuit decided an important
question of federal law in a way that directly conflicts with
the controlling rulings in Rapanos.

“When this Court applies a rule of federal law to the parties
before it, that rule is the controlling interpretation of federal
law and must be given full retroactive effect in all cases still
open on direct review and as to all events, regardless of
whether such events predate or postdate our announcement of
the rule.” Harper v. Va. Dep't of Taxation, 509 U. S. 86, 97
(1993). This case was still open on direct review when
Rapanos was decided. Déja Vu of Nashville, Inc. v. Metro-
politan Government of Nashville and Davidson County,
Tennessee, 421 F.3d 417, 420-421 (6th Cir. 2005), quoting
Bradley v. School Board of the City of Richmond, 416 U.S.
696, 710-11 (1973) (case is “open on direct review” where
the review sought is not a collateral attack on final judgment
after “availability of appeal has been exhausted and lapsed,
and the time to petition for certiorari has passed”). The
Rapanos decision, having been announced and applied to the
parties in those consolidated cases, “must be given full retro-
active effect by all courts adjudicating federal law.” Harper,
509 US. at 96, citing James D. Beam Distilling Co. v. Geor-
gia, 501 U.S. 529 (1991). Accordingly, the decision below
must be reversed or vacated and remanded for application of
the appropriate legal standard announced in Rapanos.

B. Remand for purposes of a redetermination of
Corps jurisdiction over the Baccarat wetlands
is required notwithstanding the Ninth Circuit's
fallback position that a “significant nexus” ex-
ists between the Baccarat wetlands and the
flood control channels.

As described above, the Ninth Circuit wrote, as a fallback
position, that “even if the CWA did require demonstration of

16

a significant nexus on a case-by-case basis (which it does
not), there is no question that one exists here.” App. A, 13a.
To support this statement, the Court of Appeals listed five of
the Corps’ six “findings” said to support the Corps’ assertion
of jurisdiction over the Baccarat wetlands. According to the
Court of Appeals, “the Corps found (1) that the wetlands on
the site are in reasonable proximity to the ACFCD flood con-
trol channels; (2) that the wetlands serve important functions
that contribute to the aquatic environment in general and to
the nearby tidal waters in particular; (3) that the wetlands’
functions are particularly important given the reduction of
wetlands in the San Francisco Bay area; (4) that the wetlands
are within the 100 year floodplain of tidal waters; and (5) that
the wetlands are part of a hydric soil unit that is contiguous
with the area covered by tidal waters.” Jd.° The Court indi-
cated that the findings were cumulative: “/t/aken together,
the Corps’ findings would be more than sufficient to establish
a significant nexus. .. .” /d. (emphasis supplied).

This was the entire extent of the Ninth Circuit’s discussion
of the “significant nexus” issue. The Court provided no
discussion or analysis of the existence of substantial evidence
to support these “findings.” For its part, the District Court
did not discuss or analyze the substantiality of the evidence
supporting these “findings” either, since the District Court
granted summary judgment solely on the theory that “the
Clean Water Act does not depend on the existence of an
actual hydrological or ecological connection between the
wetland and navigable waters.” App. B, 22a. As a result,

* The sixth ° ‘finding” cited by the Corps, not relied upon by the Ninth
Circuit, was more in the nature of a legal interpretation than a finding of
fact. This “finding” simply stated that the berm separating a wetland from
a navigable water does not defeat CWA jurisdiction over the Baccarat
wetlands. App. A, 4a. As the Corps acknowledges in the record, how-
ever, neither does the existence of the berm create jurisdiction under the
CWA. App. C, 33a.

\7

there is no indication in the record that the substantiality of
the evidence supporting the Corps’ findings has ever been
subjected to judicial scrutiny under any conception of the
term “significant nexus,” Jet alone the standard articulated in
Rapanos. As Justice Kennedy observed, “a reviewing court
must identify substantial evidence supporting the Corps’
claims, see 5 U.S.C. § 706(2)(E).” Rapanos, 126 S. Ct. at
2251.

None of these findings meets the tests for legitimate asser-
tions of jurisdiction over adjacent wetlands set forth in either
the plurality opinion, or in Justice Kennedy’s opinion, in
Rapanos. As explained above, the plurality view requires a
“continuous surface connection” between the “adjacent wet-
lands” and navigable waters. None of the Corps’ findings
described in the opinion below, and none of the judicial de-
scriptions of the facts, suggests a continuous surface connec-
tion between the Baccarat wetlands and the flood control
channels. To the contrary, the record is devoid of even an
allegation by the government of such a “continuous surface
connection.” For lack of this “necessary connection to cov-
ered waters,” the Baccarat wetlands do not mect the standard
“described as a ‘significant nexus’ in SWANCC, 531 U.S., at
167.” Rapanos, 126 S. Ct. at 2226 (Scalia, J.). Thus, the
Ninth Circuit’s alternative grounds for affirming jurisdiction
based on the supposed existence of a “significant nexus”
directly conflicts with the plurality’s opinion in Rapanos.

The “findings” relied upon by the Ninth Circuit also fail to
meet the jurisdictional standard articulated by Justice Kennedy
in his separate Rapanus opinion. Justice Kennedy’s opinion
calls, in all circumstances not involving adjacency to waters
that are “navigable-in-fact,” for a case-by-case consideration
of “all the factors necessary to determine whether the lands in
question had, or did not have, the requisite nexus.” Rapanos,
126 S. Ct. at 2236 (Kennedy, J., concurring in the judgment).
The “requisite nexus” would exist where the wetlands “sig-

18

nificantly affect the chemical, physical, and biological
integrity of the other covered waters more readily understood
as ‘navigable.’” /d., at 2248. Wetlands can have this effect
where they perform functions such as pollutant filtering,
flood control, and runoff storage, but a showing of “mere
adjacency . . . is insufficient.” Jd., at 2251-2252. Evidence of
a hydrologic connection between the wetland and the naviga-
ble waters would be relevant, but not necessarily sufficient: a
“mere hydrologic connection may be too insubstantial for the
hydrologic linkage to establish the required nexus with navi-
gable waters as traditionally understood.” /d., at 2251. In all
events, a precise application of the nexus standard to the facts
on a case-by-case basis is “necessary,” in Justice Kennedy’s
view, “to avoid unreasonable applications of the statute.” /d.,
at 2249.

Although there were findings in the Carabell record re-
garding facts that might support a determination that those
wetlands were indeed subject to the Corps’ assertion of juris-
diction, Justice Kennedy observed that when these findings
were made, “the legal standard applied to the facts was
imprecise,” /d., at 2251, so that “a remand is again required to
permit application of the appropriate legal standard.” /d., at
2252. In the instant case, all of the substantive proceedings
took place prior to this Court’s decision in Rapanos, and in
the proceedings below the standard applied by the Ninth
Circuit for federal jurisdiction over adjacent wetlands was
essentially the same standard that the Sixth Circuit applied in
Carabell I. The legal standard that the Corps and the Ninth
Circuit utilized prior to Rapanos was no less “imprecise”
when applied to the Baccarat wetlands than it was when the
Corps and the Sixth Circuit applied it to the Carabell
wetlands. As in Carabell, remand is required in this case to
permit application of the appropriate legal standard.

Justice Kennedy’s opinion also casts considerable doubt on
the sufficiency or even relevance of the “findings” relied

19

upon by the Ninth Circuit to support its alternative holding.
In this regard the “remarkable similarity,” App. A, } 1a, be-
tween the facts of this case and those of Carabell is telling.
Both cases involved wetlands proximately located to a man-
made water conveyance channel (or ditch), but with no
hydrologic connection to the waters carried by those chan-
nels. Rapanos, 126 S. Ct at 2239. In Carabell I, the Sixth
Circuit was swayed by the “mere adjacency” of the wetlands
to navigable waters. In the proceedings below, the Ninth
Circuit was swayed by a finding of “reasonable proximity.”
App. A, 31a. “Mere adjacency” was insufficient, in Justice
Kennedy’s view, to support jurisdiction. Rapanos, 126 S. Ct.
at 2252. So is “reasonable proximity.” °

~ In Carabell, the Corps referred to “the potential ability of
the wetland to act as a sediment catch basin” and to
ameliorate effects of “possible flooding.” Rapanos, 126 S.Ct.
at 2251. As Justice Kennedy observed, however, the “condi-
tional language in these assessments——‘potential ability,’
‘possible flooding’—could suggest an undue degree of specu-
lation, and a reviewing court must identify substantial evi-
dence supporting the Corps’ claims, see 5 U.S.C. § 706(2)(E).”
Id. Similarly, in the instant case, the Ninth Circuit relied
upon a Corps finding that the Baccarat wetlands “serve im-
portant functions” that “are particularly important given the
reduction of wetlands in the San Francisco Bay area.” App.
A, 13a. These generalized assertions provide no more sub-
stantial evidence to support a jurisdictional finding than the

° Similarly, in Baccarat, the Ninth Circuit referenced a finding by the
Corps of “hydric soils” common to the wetlands and the tidal waters.
App. A, 13a. The opinions in Rapanos did not mention the character of
the soils in the wetlands, but the Corps in Carabell did discuss the
existence of hydric soils in the ditch and adjoining onsite wetlands at issue
in that case. See Carabell v. U.S. Army Corps of Engineers, 257 F.Supp.
2d 917, 926 (E.D. Mich. 2003), aff'd, 391 F.3d 704 (6th Cir. 2004), va-
cated and remanded sub nom., Rapanos vy. United States, 126 S. Ct. 2208,
165 L. Ed. 2d 159 (June 19, 2006).

20

conditional assertions Justice Kennedy deemed inadequate in
Rapanos.

The only finding in Baccarat that does not have a direct
parallel with the findings in the Carabell J decision that was
vacated by this Court is the Ninth Circuit’s reference to the
Corps’ finding that the Baccarat wetlands are within the 100
year floodplain of tidal waters. App. A, 13a. While it is not
self-evident why this particular finding is relevant to the
question of a significant nexus, suffice for present purposes to
note that Baccarat should at least have the opportunity to
argue, based on Rapanos, that a mere possibility of a connec-
tion between the wetlands and tidal waters once in a century
does not qualify as a “significant” nexus, and that, based on
Rapanos, this finding is too “speculative or insubstantial” a
factor to consider whether the Baccarat wetlands fall within
the “zone fairly encompassed by the statutory term ‘navigable
waters.” Rapanos, 126 S. Ct. at 2248.’

The Ninth Circuit emphasized that the findings upon which
it relied for its alternative holding are findings that, “{t]aken
together,” would establish a significant nexus between the
wetlands and the flood control channels. App. A, 13a. Thus,
no one can say how the Ninth Circuit, or the Corps, for that
matter, would have viewed the matter if one or more of these
“findings” were given less weight, or removed from consid-
eration altogether, in light of the Supreme Court’s controlling
opinions in Rapanos.

In sum, it is not enough simply to posit a “significant
nexus” by reference to broad, untested findings in support of
that claim, and then end the analysis. This Court required
much more when it vacated the Carabell judgment in

"The Ninth Circuit’s opinion makes no reference to a finding (and
there is none) that the wetlands have ever been flooded, much less flooded
to the extent of forging « connection between the wetlands and navigable
waters.

21

Rapanos, and much more is required here. Pursuant to its
authority under its Rule 16.1, this Court should grant cer-
tiorari, and either vacate or make a summary disposition of
reversal, and remand the matter for further proceedings in
light of Rapanos. Failure to do so would leave intact Ninth
Circuit case law that conflicts with the relevant decisions of
this Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DAVID H. BLACKWELL
Counsel of Record
ROBERT R. MOORE
JAMES T. BURROUGHS
ALLEN MATKINS LECK GAMBLE
MALLORY & NATSIS LLP
Three Embarcadero Center
12th Floor
San Francisco, California 941] 1]
(415) 837-1515

Counsel for Petitioner

November 1, 2006

APPENDIX

la
APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

[Filed October 14, 2005!

No. 03-16586
D.C. No. CV-02-03317-CW

BACCARAT FREMONT DEVELOPERS, LLC,
a California limited liability company,
Plaintiff-Appellant,
v.

UNITED STATES ARMY CORPS OF ENGINEERS; TIMOTHY A.
O’ROURKE; SAN FRANCISCO STATES ARMY CORPS OF
ENGINEERS; STATE WATER RESOURCES CONTROL BOARD;
CELESTE CANTU, Executive Officer of State Water Re-
sources Control Board; SAN FRANCISCO REGIONAL WATER
QUALITY CONTROL BOARD; LORETTA K. BARSAMIAN,
Executive Officer of San Francisco Regional Water
Quality Control Board; CiITy OF FREMONT,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding

Argued and Submitted
February 16, 2005—San Francisco, California

2a
OPINION

Before: DOROTHY W. NELSON, WILLIAM A.
FLETCHER, and RAYMOND C. FISHER, Circuit Judges.

W. FLETCHER, Circuit Judge:

Baccarat Fremont Developers, LLC (“Baccarat”) seeks to
set aside the determination by the Army Corps of Engineers
(the “Corps”) that under the Clean Water Act (“CWA”) it has
jurisdiction over 7.66 acres of wetlands located on property
owned by Baccarat in Fremont, California. The Corps asserts
jurisdiction based on the fact that the wetlands are adjacent to
waters of the United States. Baccarat argues that after the
Supreme Court’s decision in Solid Waste Agency of N. Cook
County v. United States Army Corps of Engineers, 531 U.S.
159 (2001) (“SWANCC’”), adjacency is no longer sufficient to
establish the Corps’ jurisdiction under the CWA. In Bacca-
rat’s view, the Corps failed to demonstrate an adequate
hydrological or ecological connection between these partic-
ular wetlands and the adjacent waters of the United States.
We affirm the district court’s grant of summary judgment in
favor of the Corps.

I. Background

In July 1997, Baccarat purchased a 30.98 acre site (“the
site’) near San Francisco Bay in Fremont, California, on
which it planned to develop a six-building office, research,
and manufacturing facility. The site is roughly rectangular. It
is bordered on the north by Cushing Parkway, on the east
by Fremont Boulevard, and on the south and west by prop-
erty owned by the Alameda County Flood Control District
(““ACFCD”). Two ACFCD flood control channels run parallel
to the southern and western boundaries of the site. The flood
control channels are navigable and connect with the Bay.

The site contains 7.66 acres of wetland. The wetlands are
separated from the flood control channels by man-made

3a

berms, which follow the southern and western boundaries of
the site. A maintenance road runs on top of the berms. If the
berms were removed, the wetlands would connect directly to
the flood control channels. Baccarat asserts that if the berms
were removed, the wetlands would drain entirely. At the clos-
est point, the wetlands are 65-70 feet from the flood control
channels. The wetlands on the site are separated into six
delineated areas, five of which are at issue in this case. The
sixth area (designated Wetland 4) receives tidal flow through
a culvert from an ACFCD channel, and the Corps’ juris-
diction over the wetlands in that area is not in dispute.

In February 1998, at Baccarat’s request, the Corps’ San
Francisco District (“the District”) determined that it had juris-
diction under the CWA over 7.66 acres of wetland on the site.
Baccarat then sought a permit from the District to fill 2.36 of
those acres. On January 29, 2001, Baccarat requested that the
Corps reconsider its jurisdiction over the wetlands on the site
in light of the Supreme Court’s decision in SWANCC. By a
letter dated May 8, 2001, the District reaffirmed its determi-
nation of jurisdiction, explaining that SWANCC “did not
climinate the Corps’ authority to regulate wetlands adjacent
to a tidal waterway.” The District noted that the flood control
channels are “within 250 feet of the site’s western and south-
ern boundaries,” and that under 33 C.F.R. § 328.3(c), the
presence of the man-made berms did not defeat adjacency.
Finally, the District noted that water from the wetlands would -
flow into the flood control channel during storms if not for
the man-made berms.

Baccarat appealed the District’s determination to the Corps’
South Pacific Division (“the Division”). After an appeal con-
ference and site visit, the Division issued its decision on
October 25, 2001. The Division rejected Baccarat’s conten-
tion that SWANCC modified the Corps’ jurisdiction over
adjacent wetlands. However, the Division found that the
District had not provided sufficient evidence for its adjacency

4a

determination, and that the District’s finding that the wetlands
would drain into the ACFCD channels but for the berms was
irrelevant to the jurisdictional determination. The Division
remanded to the District.

On January 28, 2002, the District determined once again
that the wetlands on the site are adjacent to tidal waters and
thus subject to the Corps’ jurisdiction under the CWA. In an
accompanying Memorandum for Record, the District set forth
six reasons for so holding: (1) that barriers such as berms do
not defeat adjacency pursuant to 33 C.F.R. § 328.3(c); (2) that
the wetlands are in reasonable proximity to the ACFCD flood
control channels; (3) that the wetlands serve important func-
tions that contribute to the aquatic environment in general and
to the nearby tidal waters in particular; (4) that the wetlands’
functions are particularly important given the reduction of
wetlands in the San Francisco Bay area; (5) that the wetlands
are within the 100 year floodplain of tidal waters; and (6) that
the wetlands are part of a hydric soil unit that is contiguous
with the area covered by tidal waters. The District noted that
it agreed with the Division that it was irrelevant to the juris-
dictional determination that the wetlands would drain into the
ACFCD channels but for the berms. The District’s January
28, 2002, decision was the Corps’ final decision under 33
C.F.RK. § 331.10.

On February 6, 2002, the Corps offered Baccarat a permit
to fill 2.36 acres of wetland, subject to the condition that it (1)
create on-site a minimum of 2.36 acres of seasonal freshwater
wetlands and (2) enhance the remaining 5.3 acres of existing
brackish wetlands. Baccarat signed the permit, reserving the
right to seek judicial review of the Corps’ jurisdictional deter-
mination. The permit was issued on March 1, 2002.

Baccarat sued the Corps in California Superior Court, seek-
ing declaratory and injunctive relief from the Corps’ determi-
nation that it has jurisdiction under the CWA. Baccarat also
named as defendants Lt. Colonel O’Rourke of the Corps; the

Sa

State Water Resources Control Board and its Director, Celeste
Cantu; the San Francisco Regional Water Quality Control
Board and its Executive Officer, Loretta K. Barsamian; and
the City of Fremont. The suit was removed to federal district
court. The district court granted the City of Fremont’s motion
to dismiss for lack of jurisdiction, and remanded to state court
Baccarat’s claims against the state defendants. The district
court granted summary judgment to the Corps, holding that
the Corps has jurisdiction.

II. Discussion
A. Standard of Review

We review the district court’s grant of summary judgment
de novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d
i013, 1019 (9th Cir. 2004). Viewing the evidence in the light
most favorable to the nonmoving party, we ask whether there
are any genuine issues of material fact in dispute and whether
the district court applied the relevant substantive law cor-
rectly. Far Out Prods., Inc. v. Oscar, 247 F.3d 986, 992 (9th
Cir. 2001).

Under the Administrative Procedure Act (“APA”), we may
set aside an agency decision if it is “arbitrary, capricious, or
an abuse of discretion, or otherwise not in accordance with
the law.” 5 U.S.C. § 706(2)(A). The arbitrary and capricious
standard is appropriate for the resolution of factual disputes
implicating substantial agency expertise. Marsh v. Oregon
Natural Res. Council, 490 U.S. 360, 375-76 (1989). In re-
viewing an agency decision under the APA, we ask whether
the decision was based on a consideration of the relevant fac-
tors and whether there has been a clear error of judgment. /d.
at 378. We may reverse under the arbitrary and capricious
standard only if the agency has

relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect
of the problem, offered an explanation for its decision

6a

that runs counter to the evidence before the agency, or is
so implausible that it could not be ascribed to a dif-
ference in view or the product of agency expertise.

Pacific Coast Fed’n cf Fishermen’s Ass’ns, Inc. v. National
Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001)
(citation omitted).

B. The Corps’ Adjacency Jurisdiction

We conclude that the Corps has jurisdiction over wetlands
under the Clean Water Act, 33 U.S.C. §§ 1251 et seg. The
CWA prohibits the discharge of pollutants into navigable
waters. See 33 U.S.C. §§ 1311(a), 1344(b), 1344(d) and
1362(12). “The term ‘navigable waters’ means the waters of
the United States.” 33 U.S.C. § 1362(7). The Corps has
issued a regulation defining “waters of the United States” as
follows:

(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 (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;

* * *

(5) Tributaries of waters identified in paragraphs (a){1)
through (4) of this section;

* * *

Ta

(7) Wetlands adjacent to waters (other than waters that
are themselves wetlands) identified in paragraphs (a)(1)
through (6) of this section.

33 C.F.R. § 328.3 (emphasis added). The regulations further
provide that the term “‘adjacent’” means bordering, contig-
uous, or neighboring,” and they specify that “{w]etlands
separated from other waters of the United Statcs by man-
made dikes or barriers, natural river berms, beach dunes and

the like are ‘adjacent wetlands.’” 33 C.F.R. § 328.3(c).

The parties agree that the ACFCD flood control channels
contain waters of the United States. The Corps determined
that the wetlands on Baccarat’s site are adjacent to the flood
control channels, thus placing them within the jurisdiction of
the Corps pursuant to the adjacency clause in 33 C.F.R.
§ 328.3(a)(7). Baccarat argues that adjacency alone is in-
sufficient to support the Corps’ jurisdiction. In Baccarat’s
view, for the Corps to have jurisdiction, there must be a sig-
nificant hydrological or ecological connection between the
wetlands and the jurisdictional water on which the adjacency
determination is based.

The text of the CWA and the implementing regulations
promulgated by the Corps give no indication that a significant
hydrological or ecological connection is a condition of Corps
jurisdiction over adjacent wetlands. Baccarat relics on the
Supreme Court’s decision in SWANCC to support its conten-
tion that adjacent wetlands must be hydrologically or ecologi-
cally connected to waters of the United States. SWANCC,
however, did not address the Corps’ adjacency jurisdiction.
Rather, it invalidated the Corps’ Migratory Bird Rule.

Under the Migratory Bird Rulc, the Corps asserted jurisdic-
tion based on the CWA over intrastate waters that migratory
birds used as a habitat. SWANCC, 531 U.S. at 163-64. The
waters at issue in SWANCC were “isolated ponds, some only
seasonal, wholly located within two Illinois counties.” /d. at

8a

171. The Court held that the Migratory Bird Rule was not
“fairly supported by the CWA,” id. at 167, on the ground that
reading the CWA to extend jurisdiction to inland ponds like
those at issue in SWANCC would effectively read the term
“navigable waters” out of the statute. /d. at 171-72. The
Corps did not assert that the waters at issue in SWANCC were
adjacent to waters of the United States, and the Court’s
opinion did not address the Corps’ jurisdiction over adjacent
wetlands.

The Supreme Court had explicitly addressed the Corps’
jurisdiction over adjacent wetlands based on the CWA in an
earlier case, United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985). In that case, the Court unanimously
upheld the Corps’ jurisdiction over wetlands adjacent to
waters of the United States, reasoning that “the Corps’ cco-
logical judgment about the relationship between waters and
their adjacent wetlands provides an adequate basis for a legal
judgment that adjacent wetlands may be defined as waters
under the Act.” /d. at 134. In so holding, the Court acknowl-
edged that some adjacent wetlands might not be environmen-
tally significant to their adjoining bodies of water. Never-
theless, the Court concluded that the Corps had acted properly
in defining all adjacent wetlands as waters of the United
States. Jd. at 135. In footnote 9, the Court wrote:

Of course, it may well be that not every adjacent wetland
is of great importance to the environment of adjoining
bodies of water. But the existence of such cases does not
seriously undermine the Corps’ decision to define all
adjacent wetlands as “waters.” If it is reasonable for the
Corps to conclude that in the majority of cases, adjacent
wetlands have significant effects on water quality and
the aquatic ecosystem, its definition can stand. That the
definition may include some wetlands that are not sig-
nificantly intertwined with the ecosystem of adjacent
waterways 1s of little moment, for where it appears that a

9a

wetland covered by the Corps’ definition is in fact lack-
ing in importance to the aquatic environment-—or where
its importance is outweighed by other values—the Corps
may always allow development of the wetland for other
uses simply by issuing a permit.

Id. at 135 n.9 (citation omitted). In this passage, the Court
rejected the idea that for the Corps to have jurisdiction over
adjacent wetlands it must demonstrate a significant hydro-
logical or ecological connection between the particular wet-
lands in question and the jurisdictional water to which it is
adjacent. As the Court explained, the fact that the Corps has
determined that the majority of adjacent wetlands have sig-
nificant effects on neighboring aquatic ecosystems is suf-
ficient to support the Corps’ assertion of jurisdiction over
other wetlands that are not “significantly intertwined” with
such ecosystems.

Baccarat argues that we should read footnote 9 of Riverside
Bayview Homes differently. According to Baccarat,

refusing to invalidate a regulatory “definition” on the
grounds that “not every adjacent wetland is of great
importance to the environment of adjoining bodies of
water” is not the same thing as saying that in an
individual case requiring a jurisdictional delineation by
the Army Corps, no evidence of a hydrological and
ecological connectivity is required. Every jurisdictional
claim made by the Army Corps must be factually based.
Otherwise, the Army Corps’ claim of jurisdiction is
arbitrary and capricious for failure to articulate a rational
connection between the facts found and the choice made.

In our view, Baccarat misreads footnote 9. According to the
Supreme Court, when the Corps is confronted with adjacent
wetlands that are not “significantly intertwined” with the
ecosystem of adjacent waterways, it “may . . . allow develop-
ment . . . simply by issuing a permit.” 474 U.S. at 135 n.9.
Thus, the Court clearly contemplates the Corps’ jurisdiction

10a

over adjacent wetlands, even when they lack a significant
ecological connection with waters of the United States. Other-
wise the issuance of a permit would be both unnecessary and
ultra vires. We do not read Riverside Bayview Homes to
deprive the Corps of jurisdiction over particular wetlands that
fall within the adjacency regulation if they lack a significant
hydrological or ecological connection to waters of the United
States. Rather, under Riverside Bayview Homes, the Corps’
determination that a majority of adjacent wetlands have
important ecological connections to waters of the United
States is sufficient to support its regulations establishing juris-
diction over other adjacent wetlands that fall within the adja-
cency clause in 33 C.F.R. § 328.3(a)(7).

Baccarat’s reading of SWANCC is similarly unpersuasive.
SWANCC did not retreat from the view expressed in River-
side Bayview Homes that the Corps’ determination that the
majority of adjacent wetlands have an ecological connection
to waters of the United Sates is sufficient to support broader
jurisdiction over other adjacent wetlands. Indeed, SWANCC
repeatedly referred to the holding of Riverside Bayview
Homes—“that § 404(a) [of the CWA] extend[s] to nonnavi-
gable wetlands adjacent to open waters”—without giving any
indication that it intended to modify or overrule that
unanimous ruling. /d. at 167-68, 172.

SWANCC simply did not address the issue of jurisdiction
over adjacent wetlands. The Court noted in SWANCC that to
hold for the Corps, it would have “to hold that the jurisdiction
of the Corps extends to ponds that are not adjacent to open
water.” /d. at 168 (emphasis in original). The fact that the
Court in SWANCC refused to allow the Corps to extend its
jurisdiction to waters that are not adjacent to jurisdictional
waters on thie basis of migratory bird patterns has no bearing
on its earlier holding that the Corps has jurisdiction over wet-
lands that are adjacent to jurisdictional waters.

lla

Our decision in Headwaters, Inc. v. Talent Irrigation
District, 243 F.3d 526 (9th Cir. 2001), does not support the
conclusion that a significant hydrological or ecological con-
nection is necessary for Corps jurisdiction over adjacent wet-
lands. In Headwaters, we upheld the EPA’s jurisdiction over
irrigation canals, finding that they were “tributaries” and thus
fell within the regulatory definition of “waters of the United
States.” We distinguished SWANCC by noting that the irriga-
tion canals were not isolated, but rather “receive[d] water
from natural streams and lakes, and . . . [were] connected as
tributaries to other ‘waters of the United States.’” /d. at 533.
Headwaters might be read to suggest that when the question
is whether a water is properly classified as a “tributary” sub-
ject to Corps jurisdiction, that water must exchange water, at
least intermittently, with a water of the United States. How-
ever, Headwaters cannot be read to address the different
question at issue here—whcther a significant hydrological or
ecological connection to a particular adjacent wetland is
required for Corps jurisdiction.

Baccarat’s contention that a significant hydrological or
ecological connection is required to support the Corps’ juris-
diction over particular adjacent wetlands is thus not supported
by the CWA, by the implementing regulations, by Supreme
Court case law, or by our case law. We hold that no such con-
nection is required, and that the district court appropriately
granted the Corps’ motion for summary judgment.

In so holding, we join the Sixth Circuit in rejecting the idea
that SWANCC modified the holding of Riverside Bayview
Homes. See Carabell v. U.S. Army Corps of Engineers, 391
F.3d 704 (6th Cir. 2004). The facts in Carabell are remark-
ably similar to the facts here. The Carabells sought permis-
sion to fill 15.9 acres of wetland. The Corps declined to issue
a permit. The Carabells then brought suit in federal court,
arguing that the Corps lacked jurisdiction over the wetlands.
The court described the relationship of the plaintiffs’ wet-
lands to waters of the United States as follows:

12a

The record here establishes that the unnamed ditch run-
ning along the hypotenuse of the Carabells’ triangle-
shaped property is separated from wetlands only by a
man-made berm or barrier. At its northeastern end, the
ditch is connected to the Sutherland-Oemig Drain, a
drain that empties into the Auvase Creek, which, in turn,
empties into Lake St. Clair, which connects to Lake
Huron and Lake Erie. At its southwestern end, the ditch
is connected to other ditches, which—like the Suther-
land-Oemig Drain—outlet into the Auvase Creek and
eventually into Lake St. Clair. The ditch, then, is con-
nected on either end to tributaries of “waters of the
United States” as defined in the regulations.

Id. at 708. The Sixth Circuit concluded that

[b]ecause the wetlands on the Carabells’ property are
separated from a tributary of “waters of the United
States” only by a man-made berm or barrier, they are
considered “adjacent wetlands” under § 328.3(a)(7). As
such, the wetlands at issue fall within the jurisdiction of
the Corps for purposes of the CWA.

Id. at 708-09.

Like Baccarat, the Carabells argued that SWANCC modi-
fied Riverside Bayview Homes and limited the Corps’ juris-
diction over adjacent wetlands. The Sixth Circuit emphat-
ically reyected the argument:

In SWANCC ... the Court did not alter the Riverside-
Bayiew holding. Indeed, while noting Congress’s “un-
equivocal acquiescence to, and approval of, the Corps’
regulations interpreting the CWA to cover wetlands
adjacent to navigable waters,” the SWANCC Court did
not decide any issue with regard to “adjacent wetlands”
under 33 C.F.R. § 328.3(a)(7).

391 F.3d at 709 (citation omitted).

l3a

We note that even if the CWA did require demonstration of
a significant nexus on a case-by-case basis (which it does
not), there is no question that one exists here. In making its
jurisdictional determination, the Corps found (1) that the wet-
lands on the site are in reasonable proximity to the ACFCD
flood control channels; (2) that the wetlands serve important
functions that contribute to the aquatic environment in gen-
eral and to the nearby tidal waters in particular; (3) that the
wetlands’ functions are particularly important given the re-
duction of wetlands in the San Francisco Bay area; (4) that
the wetlands are within the 100 year floodplain of tidal
waters; and (5) that the wetlands are part of a hydric soil unit
that is contiguous with the area covered by tidal waters. Even
viewing the evidence in the light most favorable to Baccarat,
we cannot hold that these findings are arbitrary or capricious,
as would be required to set them aside under the APA. Marsh,
490 U.S. at 376-77. Taken together, the Corps’ findings
would be more than sufficient to establish a significant nexus
between the wetlands on the site and the flood control chan-
nels, were such a showing required.

Conclusion

In Riverside Bayview Homes, the Supreme Court upheld
the Corps’ exercise of jurisdiction over adjacent wetlands as
defined in 33 C.F.R. § 328.3(c). SWANCC did not modify
Riverside Bayview Homes. The Corps’ jurisdiction over wet-
lands falling within the adjacency clause in 33 C.F.R.
§ 328.3(a)(7) does not depend on the existence of a signif-
icant hydrological or ecological connection between the par-
ticular wetlands at issue and waters of the United States.
Since there is no genuine issuc of material fact in dispute as
to whether the wetlands on the site fall within the Corps’
jurisdiction, we affirm the district court’s grant of summary
judgment.

AFFIRMED.

14a
APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 02-3317 CW

BACCARAT FREMONT DEVELOPERS,
Plaintiff,

V.

U.S. ARMY CORPS OF ENGINEERS, ef ai.,
Defendants.

JUDGMENT

This action came on for hearing on the motion for
summary judgment filed by Defendants United States Army
Corps of Engineers and Lt. Col. Timothy O’ Rourke (Federal
Defendants) before the Court, the Honorable Claudia Wilken,
District Judge, presiding, and the issues having been duly
heard and a decision having been duly rendered,

[t is Ordered and Adjudged that Plaintiff Baccarat Fremont
Developers take nothing, that the action be dismissed on the
merits and that Federal Defendants recover of Plaintiff their
costs of action.

IT IS SO ORDERED.

Dated: 8/11/03 /s/ Claudia Wilken
CLAUDIA WILKEN
United States District Judge

15a

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 02-3317 CW

BACCARAT FREMONT DEVELOPERS,
Plaintiff,
Vv.

U.S. ARMY CORPS OF ENGINEERS, e¢ a/.,
Defendants.

ORDER GRANTING FEDERAL DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Defendants United States Army Corps of Engineers and Lt.
Col. Timothy O’Rourke (Federal Defendants) move for sum-
mary judgment. Plaintiff Baccarat Fremont Developers
(Baccarat) opposes this motion. The matter was heard on
March 14, 2003. Having considered all of the papers filed by
the parties and oral argument on the motion, the Court
GRANTS Federal Defendants’ motion.

BACKGROUND!

Baccarat is a California company and the developer of the
Fremont-Cushing Plaza Project, located on 30.98-acre site
in Fremont, California. The United States Army Corps of
Engineers (the Corps) is a federal agency having jurisdiction
to regulate certain activities in navigable waters of the United
States under the Clean Water Act. Lt. Col. Timothy O’Rourke
is the District Engineer for the San Francisco District of the
Corps. Baccarat contests Defendants’ assertion of regulatory

' Except where noted that an issue of fact is disputed, or that one party
makes certain allegations or contentions, the facts below are undisputed.

16a

jurisdiction over seasonal wetlands located on the Fremont-
Cushing Plaza Project site.

The Fremont-Cushing Plaza Project site is roughly rec-
tangular. It is bounded on the north by Cushing Parkway, on
the east by Fremont Boulevard, and on the south and west
by property owned by the Alameda County Flood Control
District (ACFCD). Berms located on the ACFCD property
separate the wetlands from a flood contro] channel operated
by the ACFCD. A maintenance road sits atop the berms. The
berms and road abut the western and southern boundaries of
the wetlands.

The project site contains approximately 7.66 acres of sea-
sonal wetlands in six delineated sites identified as la, 2a, 3, 4,
5a and 6a in Federal Defendants’ Wetland Delineation Map
Wetlands la, 3, 6a and 7a are located at the south and west
edges of the site. Wetlands 2a and Sa are located near the
center of the site. Wetland 4, a 0.48-acre site, receives re-
stricted tidal flow through a culvert from an ACFCD culvert.
Baccarat does not contest the Corps’ assertion of jurisdiction
over wetland 4 under 33 U.S.C. § 403. Wetlands la, 2a, 3, Sa
and 6a will be referred to hereafter as the “contested wet-
lands.”

The administrative record includes “site notes,” dated April
17, 2001, prepared by Philip Shannin, a project manager with
the regulatory division of the Corps. These notes state that “if
not for [the berms] . . . wetlands [la, 3, 6a and 7a] would
directly connect to the [tidal flood control] channels.” The
notes further state that because of a hard clay layer in the
site’s soil, “water seepage from . . . wetlands [2a and Sa] is
very slow.” According to the notes, “given the shallow depth
of these wetlands [2a and Sa] and the hardness of the soil,
water collected in these wetlands in storm events would flow
out of these wetlands.” The notes conclude that because the
elevation of the site decreases as one approaches the flood
control channels, “it seems likely that the water in these wet-

17a

lands [2a and Sa] would flow into the tidal flood control
channels, if not for the man-made berms.” Baccarat empha-
sizes that, according to the administrative record, water from
the wetlands does not flow into the channels because of the
berms.

In February, 1998, Baccarat sought, pursuant to § 404 of
the CWA, a permit from the Corps to discharge fill material
in approximately 2.36 acres of the wetlands as part of its
plans to construct commercial buildings on the project site.
Under Section 401 of the Clean Water Act, an applicant for a
Section 404 permit must first obtain a certification from a
State agency attesting that any such discharge will comply
with the Clean Water Act. 33 U.S.C. § 1341(a)(1). In June,
2001, Defendant San Francisco Regional Water Quality Con-
trol Board (Regional Board) issued to Baccarat a Conditional
Water Quality Certification and Waiver of Discharge Re-
quirements. In January, 2002, the Regional Board imposed
certain conditions on the certification. One of the conditions,
referred to as the “Mitigation Condition,” requires that Bacca-
rat create on-site a minimum of 2.36 acres of seasonal fresh-
water wetlands and enhance the remaining 5.3 acres of exist-
ing brackish wetlands within twelve months of the com-
mencement of stockpiling fill on the site. On March 1, 2002,
the Corps countersigned the permit, thereby making the per-
mit effective. The permit requires that Baccarat satisfy the
Mitigation Condition.

On June 26, 2002, Baccarat brought an action in State
° ° . . . 7
superior court, seeking declaratory and injunctive relief.” On

* Baccarat previously challenged the Army Corps’ jurisdiction over the
wetlands through an administrative process. In January, 2001, Baccarat
asked the Army Corps to reconsider its determination that it had jurisdic-
tion, in light of Solid Waste Agency of Northern Cook County v. United
States Army Corps of Engineers, 531 U.S. 159 (2001). In May, 2001, the
Army Corps denied Baccarat’s request. Baccarat appealed the decision. In
October, 2001, the South Pacific Division of the Army Corps concluded

18a

July 10, 2002, Federal Defendants removed the entire State
court action to this Court pursuant to 28 U.S.C. §§ 1441,
1442(a)(1) and 1442a. The claims against Defendants State
Water Resources Control Board; Celeste Cantu, Executive
Officer of the State Board; San Francisco Regional Water
Quality Control Board; Loretta K. Barsamian, Executive
Officer of the Regional Board; and City of Fremont were
dismissed or remanded to State court by this Court’s October
16, 2002 order.

In its remaining causes of action, Baccarat seeks a judicial
declaration that the Corps does not have jurisdiction to regu-
late the disputed wetlands and seeks to enjoin Lt. Col.
O’Rourke from enforcing the Mitigation Condition based on
this alleged lack of jurisdiction. On January 10, 2003, Federal
Defendants filed their motion for summary judgment on these
remaining causes of action.

DISCUSSION
I]. Legal Standard
A. Summary Judgment

Summary judgment is properly granted when no genuine
and disputed issues of material fact remain, and when, view-
ing the evidence most favorably to the non-moving party, the
movant is clearly entitled to prevail as a matter of law. Fed.
R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-
89 (9th Cir. 1987).

The moving party bears the burden of showing that there is
no material factual dispute. Therefore, the court must regard
as true the opposing party’s evidence; if supported by affi-

that the jurisdictional determination was not supported by substantial!
evidence in the administrative record and remanded the matter to the San

Francisco District of the Army Corps. In January, 2002, the Army Corps
reaffirmed its initial jurisdictional determination.

19a

davits or other evidentiary material. Ce/otex, 477 U.S. at 324;
Eisenberg, 815 F.2d at 1289. The court must draw all
reasonable inferences in favor of the party against whom
summary judgment is sought. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Inte/ Corp. v.
Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th
Cir. 1991). |

Material facts which would preclude entry of summary
judgment are those which, under applicable substantive law,
may affect the outcome of the case. The substantive law will
identify which facts are material. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).

Where the moving party does not bear the burden of proof
on an issue at trial, the moving party may discharge its burden
of showing that no genuine issue of material fact remains by
demonstrating that “there is an absence of evidence to support
the nonmoving party’s case.” Celotex, 477 U.S. at 325. The
moving party is not required to produce evidence showing the
absence of a material fact on such issues, nor must the
moving party support its motion with evidence negating the
non-moving party’s claim. Jd; see also, Lujan v. Nat'l
Wildlife Fed’n, 497 U.S. 871, 885 (1990); Bhan v. NME
Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert.
denied, 502 U.S. 994 (1991). If the moving party shows an
absence of evidence to support the nonmoving party’s case,
the burden then shifts to the opposing party to produce
“specific evidence, through affidavits or admissible discovery
material, to show that the dispute exists.” Bhan, 929 F.2d at
1409. A complete failure of proof concerning an essential
element of the non-moving party’s case necessarily renders
all other facts immaterial. Celotex, 477 U.S. at 323.

B. APA Standard of Review

Challenges to final agency actions are subject to the review
provisions of the Administrative Procedures Act (APA). See,

20a

e.g., Southwest Center for Biological Diversity v. Bureau of
Reclamation, 143 F.3d 515, 522 (9th Cir. 1998). The Corps’
assertion of regulatory jurisdiction over the wetlands is a final
agency action subject to review under the APA.

Under the APA, agency decisions may be set aside only if
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A); Ariz. Cattle
Growers’ Ass'n v. United States Fish & Wildlife Serv., 273
F.3d 1229, 1236 (9th Cir. 2001).? To determine whether an
agency action was arbitrary and capricious, the court must
“determine whether the agency articulated a rational connec-
tion between the facts found and the choice made.” Ariz.
Cattle Growers’ Ass'n, 273 F.3d at 1236.

“(T]he focal point for judicial review should be the admin-
istrative record already in existence, not some new record
made initially in the reviewing court.” Camp v. Pitts, 411
U.S. 138, 142 (1973); see also Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 743-44 (1985); Southwest Center for
Biological Diversity v. United States Forest Service, 100 F.3d
1443, 1450 (9th Cir. 1996). The Ninth Circuit has held, “The
task of the reviewing court is to apply the appropriate APA
standard of review, 5 U.S.C. § 706, to the agency decision
based on the record the agency presents to the reviewing
court.” Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th
Cir. 1986); Southwest Center, 100 F.3d at 1450-51.

As long as the agency decision was based on a con-
sideration of relevant factors and there is no clear error of

* Baccarat cites the decision of the Honorable Charles A. Legge of this
Court in Leslie Salt Co. v. United States, 660 F. Supp. 183, 185 (N.D. Cal.
1987) to argue that a de novo standard of review should apply in this
Court’s examination of the Corps’ assertion of jurisdiction. However, as
Federal Defendants point out, Judge Legge ultimately determined that an
arbitrary and capricious standard should apply in reviewing the Corps’
assertion of jurisdiction. See Leslie Salt Co. v. United States, 789 F. Supp.
1030, 1033 (N.D. Cal. 1991).

2la

judgment, the reviewing court may not overturn the agency’s
action. See id. (citing Am. Hosp. Ass'n v. NLRB, 499 U.S. 606
(1991)). In particular, the reviewing court must defer to the
agency’s decision when the resolution of the dispute involves
issues of fact or requires a high level of technical expertise.
See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377
(1989); Cen. Ariz. Water Conservation Dist. v. EPA, 990 F.2d
1531, 1539-40 (9th Cir. 1993). Accordingly, the court may
set aside only those conclusions that do not have a basis in
fact, not those with which it disagrees. See Ariz Cattle
Growers’ Ass’n, 273 F.3d at 1236.

C. Clean Water Act

The Clean Water Act provides that “any discharge of
dredged or fill materials into ‘navigable waters’—defined as
the ‘waters of the United States’—is forbidden unless author-
ized by a permit issued by the Corps of Engineers pursuant to
§ 404 [of the Clean Water Act, 33 U.S.C. § 1344].” United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123
(1985) (also citing 33 U.S.C. §§ 1311, 1362). As defined
in the governing regulations, “waters of the United States”
include:

(a)(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 arc
subject to the ebb and flow of the tide; . . .

(5) Tributaries of waters identified in paragraphs(a)(1)
through (4) of this section; . . .
(7) Wetlands adjacent to waters (other than waters that

are themselves wetlands) identified in paragraphs (a)(1)
through (6) of this. section.

33 C.F.R. §§ 328.3(a)(1), (5) and (7). The regulations further
state:

The term “adjacent” means bordering, contiguous, or
neighboring. Wetlands separated from other waters of

22a

the United States by man-made dikes or barriers, natural
river berms, beach dunes and the like are “adjacent
wetlands.”

Id. at § 328.3(c).

II. Federal Defendants’ Motion

It is undisputed that the flood control channels to the west
and south of the site are waters of the United States subject to
Clean Water Act § 404 jurisdiction. According to the Shannin
notes contained in administrative record, wetlands la, 3, 6a
and 7a would, directly connect to the channels but for the
berms. The Shannin notes further state that storm water from
wetlands 2a and 5a would also flow down hill across the site
and into the channels, if not for the berms. The Court con-
cludes that the contested wetlands are separated from the
channels by the berms, which are man-made barriers, and the
contested wetlands are therefore “adjacent wetlands,” under
the meaning of 33 C.F.R. § 328.3(c), over which the Corps
has regulatory jurisdiction. The facts of this case are anal-
ogous to those in Headwaters, Inc. v. Talent Irrigation Dist.,
243 F.3d 526 (9th Cir. 2001), in which the Ninth Circuit
concluded that canals that were separated from navigable
waters by closed waste gates were nevertheless subject to
§ 404 jurisdiction.*

Baccarat argues that the contested wetlands are not subject
to the Corps’ jurisdiction because there is no hydrological or
ecological connection between these wetlands and navigable
waters. Baccarat’s argument is based on an crroneous legal
standard. The Corps’ regulatory jurisdiction over adjacent
wetlands under the Clean Water Act does not depend on the
existence of an actual hydrological or ecological connection
between the wetland and navigable waters. The Supreme

*The Ninth Circuit in Headwaters did not specifically address adja-
cency under 33 C.F.R. § 328.3(c).

23a

Court has rejected this position in upholding the Corps’
adjacent wetlands regulation:

[I]t may well be that not every adjacent wetland is of
great importance to the environment of adjoining bodies
of water. But the existence of such cases does not scri-
ously undermine the Corps’ decision to define all adja-
cent wetlands as “waters.” If it is reasonable for the
Corps to conclude that in the majority of cases, adjacent
wetlands have significant effects on water quality and
the aquatic ecosystem, its definition can stand. That
the definition may include some wetlands that are not
significantly intertwined with the ecosystem of adjacent
waterways is of littke moment, for where it appears that
a wetland covered by the Corps’ definition is in fact
lacking in importance to the aquatic environment—or
where its importance is outweighed by other values—the
Corps may always allow development of the wetland for
other uses simply by issuing a permit.

Riverside, 474 U.S. at 135, n.9. See also Headwaters, 243
F.3d at 533-34.

The Supreme Court’s subsequent decision in Solid Waste
Agency of Northern Cook County (SWANCC) vy. United States
Army Corps of Engineers, 531 U.S. 159 (2001) did not alter
this holding. As Federal Defendants point out, SWANCC
addressed the application of a “migratory bird rule” to
isolated “ponds,” as defined under 33 C.F.R. § 328.3(a)(3),
that were not adjacent to waters of the United States. The
decision did not address wetlands adjacent to waters of the
United States covered by § 328.3(a)(7). See SWANCC, 531
U.S. at 167 (noting “Congress’ unequivocal acquiescence to,
and approval of, the Corps’ regulations interpreting the CWA
to cover wetlands adjacent to navigable waters”); Head-
waters, 243 3d at 533-34 (holding that the canals at issuc
were not “isolated waters” within the meaning of SWANNC).

24a

Baccarat cites several other post-SWANNC opinions that it
contends hold that SWANNC overruled Riverside such that
any wetland without an actual ecological or hydrological
connection to a navigable water is not subject to § 404 juris-
diction. See United States v. Lamplight Equestrian Center,
Inc., 2002 WL 360652 (N.D. Ill. 2002); Brace v. United
States, 51 Fed. Cl. 649 (Fed. Cl. 2002); United States v.
Krilich, 152 F. Supp. 2d 983 (N.D Ill. 2001). However, none
of these cases involves a wetland separated from navigable
waters by a man-made barrier. See Lamplight, 2002 WL
360652 at *8-9 (involving wetland that was contiguous with
navigable waters); Brace, 51 Fed. Cl. 649, 653 (noting
“paucity of record” regarding adjacency); United States v.
Krilich, 948 F. Supp. 719, 722 (N.D. Ill. 1996) (involving a
“bowl-shaped depression” that was agreed to be “not adjacent
to any other surface water”). Therefore, none held that sepa-
ration by a man-made barrier is sufficient to prevent a wet-
land from being subject to § 404 jurisdiction.

CONCLUSION

Because the Court grants Federal Defendants’ motion for
summary judgment, the Court DENIES as moot Federal De-
fendants’ motion to strike the declaration of Michael Josselyn
(Docket No. 43).

For the foregoing reasons, Federal Defendants’ motion
(Docket No. 28) is GRANTED. Judgment shall enter ac-
cordingly. Federal Defendants shall recover their costs from
Plaintiff.

IT IS SO ORDERED.

Dated: 8/11/03 /s/ Claudia Wilken
CLAUDIA WILKEN
United States District Judge

25a
APPENDIX C
ADMINISTRATIVE APPEAL DECISION

APPROVED JURISDICTIONAL DETERMINATION
FOR BACCARAT FREMONT DEVELOPERS

FILE NO. 232058
SAN FRANCISCO DISTRICT
October 25, 2001

Review Officer: Douglas R. Pomeroy, U.S. Army Corps of
Engineers (USAGE), South Pacific Division, San Francisco,
California

Technical Assistant to Review Officer: Bruce Henderson,
USAGE, Los Angeles District, Ventura Field Office, Ventura,
California

District Representative: Philip Shannin, USACE, San Fran-
cisco District, San Francisco, California

Appellant Representative: Michael Josselyn, Wetlands Re-
search Associates, San Rafael, California

Receipt of Request For Appeal (RFA): July 9, 2001
Appeal Conference Date: September 5, 2001
Site Visit Date: September 5, 2001

Background Information: The project site is an approximately
32-acre, gencrally rectangular, parcel located in Fremont,
Alameda County, California, near the San Francisco Bay. The
site is separated from Alameda County Flood Control District
(ACFCD) channels by approximately 250 feet of upland area
on the west side and south sides of the property. The ACFCD
channels connect to San Francisco Bay. Culverts with flap
gates are present at several locations between the ACFCD
channels and the wetlands. A culvert with a leaking flap gate
connects with one wetland, which the District and the Ap-
pellant agreed was within Corps jurisdiction.

26a

The District and the Appellant agree that there are wetlands
on the project site. The District and the Appellant disagree as
to whether all the wetlands on the project site are subject to
the Corps jurisdiction as adjacent wetlands.

Summary of Decision: I remand this approved jurisdic-
tional determination to the District to reconsider and further
document and/or modify its conclusions regarding which
wetlands on the project site are adjacent to jurisdictional
waters of the United States. In completing this reconsidera-
tion. the District will follow the specific instructions identi-
fied in this Administrative Appeal Decision.

Appeal Evaluation, Findings and Instructions to the San
Francisco District Engineer (DE):

Reason |: The Appellant asserts that the District did not
identify sufficient hydrological, ecological, proximity, or in-
terstate commerce connections to establish the wetlands at
issue were subject to Corps jurisdiction as wetlands adjacent
to waters of the United States. The Appellant believes these
are isolated wetlands and should be evaluated pursuant to the
Supreme Court decision in Solid Waste Agency of Northern
Cook County v. United States, 531 U.S. 159 (January 9, 2001)
(SWANCC Decision). As a matter of fact, the Appellant be-
lieves these areas would be outside Corps regulatory jurisdic-
tion if evaluated as isolated wetlands.

FINDING: The appeal has merit

ACTION: The District is directed to reconsider its adjacency
determination as described in detail in this Administrative
Appeal Decision.

DISCUSSION: The District and Appellant estimate the 32-
acre, generally rectangular, project site includes 7.66 acres ot
wetlands in six distinct delineated arcas. Jurisdictional chan-
nels of the ACFCD are located approximately 250 feet west
and south of the site. Considering the site as four quadrants
the wetlands are distributed as described below.

27a

In the southwest quadrant, about one half of the quadrant is
covered by a single, large wetland area (separate acreage
figures for each wetland were not available) described by
points la, 6a, and 7a, in the “Delineation of Jurisdictional
Wetlands and Waters of the United States, Mok Property,
Fremont, California” by Wetlands Rescarch Associates dated
August 1997 (Delineation Report). This same wetland ex-
tends into a portion of the southeast quadrant. The District
and the Appellant disagree on its jwsisdictional status.

The northwest quadrant includes a wetland on the western
edge of the site, described by point 4a in the Delineation
Report, which receives water from a culvert with leaking flap
gate. The District and the Appellant agreed this area was
subject to Corps jurisdiction and it is not discussed further.
The northwest quadrant also includes another small wetland,
also on the western edge of the site, described by point 3 in
the Delineation Report. The District and the Appellant dis-
agree on its jurisdictional status.

The northeast quadrant contains a large wetland described by
point 2a in the Delineation Report. Just west of this wetland,
in the center of the project site, there are two additional small
wetlands. One is described by point Sa in the Delineation
Report and the other is not separately documented. These
three wetlands, mapped as separate units, are located at a
greater distance from the jurisdictional waters of ACFCD
channels than the wetlands described in the previous two
paragraphs. The District and the Appellant disagree on the
jurisdictionat status of these three wetlands.

Culverts with flap gates are present at several locations on a
property located between the Appellant’s project site and the
ACFCD channel. The Appellant does not own this interven-
ing property. On the Administrative Appeal site visit the
Review Officer found these culverts had been recently
blocked. The District is aware of this new information and

28a

will separately investigate whether any enforcement action is
appropriate.

The District and the Appellant agree that the ACFCD chan-
nels are subject to Rivers and Harbors Act, Section 10 juris-
diction, and the Clean Water Act Section 404 jurisdiction.
The Appellant’s position is that the District’s evaluation of
adjacency is incorrect and should change as a result of the
SWANCC decision, and the SWANCC decision’s interpreta-
tion of United States v. Riverside Bayview Homes, Inc. 474
U.S. 121 (1985). The Appellant asserts the District should
have evaluated whether a “significant nexus” existed between
jurisdictional waters in the ACFCD channel and the areas the
District identified as adjacent wetlands.

The Appellant claims the Corps did not establish sufficient
hydrological, ecological, proximity, and interstate commerce
connections between the jurisdictional waters and the suppos-
edly adjacent wetlands for the Corps to establish regulatory
jurisdiction. The Appellant believes that the wetland areas in
question are isolated, not adjacent, wetlands, and if consid-
ered pursuant to the SWANCC decision, those arcas would be
outside Corps regulatory jurisdiction.

The Appellant believed his case was further supported by
United States v. Banks, 115 F.3d 916 (11th Cir. 1997), which
he cited as support that evidence of hydrological and ecologi-
cal links between wetlands and the adjoining river were
necessary to establish jurisdiction over adjacent waters, and
that mere physical proximity was not enough.

The District’s position is that the wetlands on the project site
are within Corps jurisdiction because they are within 250 feet
of the jurisdictional waters in the ACFCD flood control
channels. In addition, the District asserts these areas would
drain to the flood control channel if the man-made barriers
were not present.

29a

The Corps regulation regarding jurisdiction over wetlands
adjacent to jurisdictional waters is defined at 33 CFR Part
328.4 (b) and 4 (c):

“(b) Tidal Waters of the United States. The landward
limits of jurisdiction in tidal waters:

(1) Extends to the high tide line, or

(2) When adjacent non-tidal waters of the United
States are present, the jurisdiction extends to the limits
identified in paragraph (c) of this section.

(c) Non-Jidal Waters of the United States. The limits of
jurisdiction in non-tidal waters:

(1) In the absence of adjacent wetlands, the juris-
diction extends to the ordinary high water mark. or

(2) When adjacent wetlands are present, the juris-
diction extends beyond the ordinary high water mark
to the limit of the adjacent wetlands.”

The term adjacent is defined in the Corps regulations at 33
CFR 328.3 (c) as:

“(c) The term adjacent means bordering, contiguous, or
neighboring. 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
wetlands.””’ (Emphasis added]

The adjacency concept was further discussed in the Preamble
to the Corps 1977 regulations 42 Fed Reg page 37129 (1977),
which stated:

“se

.. we have defined the term “adjacent” to mean “bor-
dering, contiguous, or neighboring.” The term would in-
clude wetlands that directly connect to other waters of
the United States, or that are in reasonable proximity to
these waters but physically separated from them by man-

30a

made dikes or barriers, natural river berms, beach dunes,
and similar obstructions.” {Emphasis added]

In the Preamble to the Final Rule to issue the Nationwide
Permits in 1991, 56 Fed Reg Page 59113 (1991), the Corps
discussed the validity of establishing a nationwide distance
limit for adjacency. It was discussed as follows:

“Two commenters recommended that we establish a dis-
tance limit for adjacency. We believe that this would be
an unreasonable approach due to the potential variability
of the factors utilized in establishing adjacency for each
individual project such as man-made barriers and natural
berms.”

A similar difficulty exists for Corps Districts in establishing a
specific distance limit across variable geographic areas and
site conditions.

The Joint Memorandum from Environmental Protection
Agency General Counsel and Corps of Engineers Chief
Counsel on the SWANCC decision dated January 19, 2001, -
concluded that the Supreme Court in SWANCC:

“. . did not overrule the holding or rationale of United
States v. Riverside Bayvicw Homes... .”

The Corps Headquarters, Operations Division, Memorandum
of May 11, 2001, prohibits Regulatory Offices in Major
Subordinate Commands (MSCs, also called Divisions) and
District Commands, from developing or utilizing new local
practices for determining the extent of Clean Water Act Sec-
tion 404 regulatory jurisdiction, or from utilizing local prac-
tices that were not in effect prior to the January 9, 2001
SWANCC decision. This is in order to minimize complica-
tions affecting the development and promulgation of National
Policy subsequent to SWANCC in connection with inter-
agency efforts to address Clean Water Act jurisdiction related
to the ‘tributary’ status of waters, and to the ‘adjacent’ status

3la

of wetlands. In problematic situations, Districts can requesi
case-specific guidance from Corps Headquarters Regulatory
Branch.

The Appellant contends that the Supreme Court in its deci-
sion in SWANCC, modified its previous holding in the
Riverside Bayview Homes decision. In the Appellant’s view,
after SWANCC, the Corps must find that there is a significant
nexus between a jurisdictional water of the United Stated and
the adjacent wetland in order for the Corps to assert jurisdic-
tion under the Clean Water Act. Based on my review of these
decisions and the guidance by our Headquarters, I conclude
that the standard for determining adjacency has not been
modified. Moreover, to the extent that Appellant relied on the
Circuit Court’s 1997 Banks opinion to provide further inter-
pretation of the SWANCC dccision, that reliance is misplaced
because that decision predated SWANCC.

The District discussed its reasons for determining that the on-
site wetlands were within Corps jurisdiction as adjacent wet-
lands as follows in its May 8, 2001, letter:

“Based upon the information provided and our knowl-
edge of the area, we have determined that all wetlands
on site are adjacent to a tidal flood control channel. This
channel is located within 250 fect of the site’s western
and southern boundaries. Separation of these wetlands
from the channel, by man-made barriers does not extin-
guish adjacency. . . . Furthermore, the site’s topography
indicates that the water in the wetlands would flow into
the channel in storm events, if not for the man made
barriers.”

The District letter provided two reasons for its conclusion that
these areas were within reasonable proximity of waters of the
United States. The first of these reasons was that the wetlands
on the project site were within 250 feet of the jurisdictional
ACFCD channels. The District did not provide any informa-

32a

tion on why the 250-foot distance was considered reasonable
proximity for purposes of determining adjacency. The second
factor the District relied on as was that if the man-made
barriers were not in place, the wetlands would drain across
the project site to the jurisdictional ACFCD channels during
storm events.

In regard to the first factor, 1 conclude the District has not
sufficiently documented why a 250-foot distance should be
considered within reasonable proximity to establish adjacency
in this situation. The District’s one page document “Addi-
tional Factors To Consider When Making “Adjacency”
Determinations”, de scribed several criteria including topog-
raphic connections, hydrologic connections, and ecologic
connections which could be documented to assist in establish-
ing adjacency. This document, although undated, is known to
precede the SWANCC decision, and could have been used to
assist the District in its determination. However, the factors
described in that document were not addressed in any detail
in this jurisdictional determination.

The second factor the District relied on was its determination
that if the man-made barriers were not in place, the wetlands
would drain across the project site to the jurisdictional
ACFCD channels during storm events. The Appellant coun-
tered that conclusion with the assertion that if the man-made
restrictions were removed, that drainage would increase to
such an extent in the southwestern portion of the site that the
wetlands would disappear duc to lack of sufficient wetland
hydrology. The Appellant also claims that parts of the site
would not drain to San Francisco Bay whether the berms
were in place or not. Furthermore, the Appellant claims that
the site did not have wetlands prior to establishment of the
ACFCD channel.

I regard as irrelevant both the District’s and the Appellant’s
arguments regarding the second factor, what would happen if
the berms were removed. Both positions are based on specu-

33a

lation as to future conditions that do not now exist. The
Appellant’s supporting information that few, if any, wetlands
occurred on this site at some point in the past 50 years is also
irrelevant.

I concur with the District’s conclusion that the presence of a
barrier does not necessarily extinguish adjacency. However,
neither does the presence of such a barrier establish adja-
cency. As discussed above, the Administrative Record does
not provide any details why the wetlands on this site were
considered adjacent other then a statement of the distance
between the wetlands and the nearest jurisdictional waters.

In addition, the District did not explain how some of the
smaller, separately mapped, wetland areas in the interior of
the site could be considered adjacent. The Corps regulations
at 33 CFR Part 328.3 (a)(7) states that waters of the United
States include:

“Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a) (1)-(6)
of this section [waters of the United States] [Emphasis
added].

It appears that the wetlands in the center of the site are closer
to other wetlands than they are to the ACFCD channels. In
order for these wetlands on the interior of the site to be
considered jurisdictional, they must be directly adjacent to the
ACFCD channels or they must form a “wetland continuum or
complex” with other wetlands on the site. In such situations
the entire complex can be considered an adjacent wetland.
This situation was described, for purposes of determining
which jurisdictional water a wetland was adjacent to, in the
Preamble to the 1991 reissuance of the Corps Nationwide
Permits 56 Fed Reg page 59113, 1991, as follows:

“In systems where there is a broad continuum of wet-
lands, all are considered adjacent to the major waterbody
to which it is contiguous.

34a

Although this guidance is not directly applicable to this
situation as the project site wetlands are not contiguous with
the ACFCD channel, it does support the approach of having a
broad area of wetlands considered adjacent to a larger water
body, such as the San Francisco Bay, provided that they can
be considered part of a broad coriinuum of wetlands.

However, the only evidence that a broad continuum of wet-
lands existed here, was the District project manager’s April
17, 2001 Memorandum To File, which stated that water
collected during storms in wetlands in the center of the site
would flow towards other wetlands on the site closer to the
ACFCD channel. The Appellant disputes the assertion that
there would be sufficient precipitation to generate flow be-
tween the wetlands in the center of the site and those on the
west and south edge of the site. I find that the District’s
conclusion, without further documentation regarding this ap-
proach, is insufficient to establish that the wetlands on the
interior of this site are part of a complex and therefore adja-
cent for jurisdictional purposes.

I conclude the District’s jurisdictional determination is not
supported by substantial evidence in the Administrative
Record, and remand this action to the District as required by
33 CFR Part 331.9 for reconsideration based on the
instructions below.

The District must use its existing procedures to further docu-
ment, reconsider, and if appropriate, modify its jurisdictional
determination that the wetland unit described by points la,
6a, and 7a; and the wetland unit described by point 3a, are
within Corps jurisdiction as wetlands adjacent to the jurisdic-
tional ACFCD flood control channel.

The District must also use also use its existing procedures to
further document, reconsider, and if appropriate, modify its
jurisdictional determination that the wetland unit described by
point 2a, the wetland. unit described by point 5a, and the

35a

undescribed wetland unit mapped approximately 25 feet north
of point 5a, are within Corps jurisdiction. These wetlands are
in the interior of the project site. The District must further
document why these distinctly mapped wetland on the inte-
rior of the site are directly adjacent to jurisdictional waters
despite the distinctly mapped, intervening wetlands, or ex-
plain why these wetlands are adjacent as part of a complex or
continuum of wetlands.

If the District finds that after applying its existing procedures,
that it still lacks substantial evidence upon which to reach a
conclusion, the District may seck case-specific guidance from
Corps Headquarters Regulatory Branch as discussed in the
Chief of Operations Division May 11, 2001 Memorandum. If
upon reconsideration the District has substantial evidence that
some of the wetlands areas should be considered isolated
wetlands rather than adjacent wetlands, then the jurisdictional
status of these areas should be reconsidered pursuant to the
SWANCC decision.

Information Received and its Disposition During the Appeal
Review: In addition to the Administrative Record, the follow-
ing additional clarifying information was submitted during
the appeal.

1) District Project Managers Septembcr 6, 2001 supple-
ment clarifying statement regarding relevance to the
jurisdictional determination of whether tidal action
would reach the site if the current berms were re-
moved.

2) Appellant's September 14, 2001 supplemental re-
sponses to questions asked at the Administrative
Appeal conference.

3) District’s Office of Counsel supplemental memo of
September 28, 2001 regarding determination of adja-
cency.

36a

4) District’s Regulatory Branch undated “Additional
Factors to Consider When Making “Adjacency”
Determinations” sheet, and District Office of Coun-
sel’s 1995 memorandum regarding adjacency on the
Dawson property submitted October 2, 2001.

5) Appellant’s October 9, 2001 additional response to the
District’s interpretations of adjacency.

'

All these submittals and information were classified as clari-
fying information, and were considered during the review of
this administrative appeal. Several culverts with flap gates on
the intervening property between the Appcllant’s project site
and the ACFCD channel had been recently blocked. This was
considered new information and provided to the District to
investigate whether any enforcement action is appropriate.

Conclusion: I remand this approved jurisdictional determina-
tion to the District to reconsider and further document and/or
modify its conclusions regarding which wetlands on the pro-
ject site are adjacent to jurisdictional waters of the United
States. In completing this reconsideration, the District will
follow the specific instructions identified in this Administra-
tive Appeal Decision.

original signed by Leonardo V. Flor, COL, EN, Dep
Div Cdr for

Robert L. Davis
Colonel (P), Corps of Engineers
Division Engineer

37a
APPENDIX D

[LOGO]

DEPARTMENT OF THE ARMY
SAN FRANCISCO DISTRICT, CORPS OF ENGINEERS
333 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105-2197

Jan. 28, 2002

Regulatory Branch (1145b)
Subject: File Number 23205S

Mr. Myron N. Crawford

Baccarat Fremont Developers LLC
10050 Bandley Drive

Cupertino, California 95014-2188

Dear Mr. Crawford:

This Ictter is the San Francisco District Corps of Engineers
(District) response to the jurisdictional delineation appeal re-
mand decision, made by the Corps of Engineers South Pacific
Division (Division), on the Fremont-Cushing Plaza site, in the
City of Fremont, Alameda County, California. In a memo-
randum dated October 25, 2001, the Division remanded the
delineation back to the District for reconsideration.

In response to this memorandum, a reconsideration of the
subject approved delineation was conducted to further docu-
ment the District’s conclusion that wetlands are adjacent to
jurisdictional waters of the U.S. The Administrative Record
was further reviewed in accordance with the Administrative
Appeal decision document. For the reasons set forth below,
and further explained in the attached memorandum for
Record, the District has determined that the wetlands on the
Fremont-Cushing Plaza site are adjacent to tidal waters under
the approved jurisdictional delineation.

38a

Man-made Barriers
Reasonable Proximity
Wetlands Functions
Assessment Area

100 Year Floodplain
Hydric Soils

If you have any further questions about this project fecl
free to call Philip Shannin of our Regulatory office at 415-
977-8445.

DAAWRWNS

Sincerely,

/s/ Original Signed By District Engineer
TIMOTHY S. O’ ROURKE
Lieutenant Colonel, Corps of Engineers
District Engineer

Enclosure

Copy Furnished w/ encl:

Wetlands Research Associates, San Rafael, CA 94901,
ATTN: Mike Josselyn

CF:

CESPD-DE

CESPD-ET-C (POMEROY)
CESPN-OR-RS (SHANNIN)
CESPN-OR-R Rdg File

39a

Memorandum for Record

Subj: Reconsideration of Remand of Appeal Decision of
Approved Jurisdictional Determination for Baccarat Fremont
Developers, LLC. File No. 23205S

1. In response to the Memorandum dated 25 Oct 2001,
Remand of Appeal Decision, a reconsideration of the subject
approved jurisdictional determination was conducted to fur-
ther document the District’s conclusion that wetlands are
adjacent to jurisdictional waters of the US. The Administra-
tive Record was further reviewed in accordance with the
Administrative Appeal decision document. For the reasons set
forth in detail below, the District has determined that the
wetlands on the Cushing-Fremont Plaza Project site are adja-
cent to tidal waters under the approved jurisdictional deter-
mination.

2. The following sets forth the three relevant findings
of the Administrative Appeal decision and the District’s
responses:

a. In regard to the first factor, I conclude the District
has not sufficiently documented why a 250-foot distance
should be considered within reasonable proximity to
establish adjacency in this situation.

The District asserts that the wetlands are adjacent for the
reasons set forth below:

(i) Man-Made Barriers such as berms and air bladders
do not defeat adjacency. The term adjacent is defined in
the Corps regulations at 33 CFR 328.3(c) as“... .
Wetlands separated from other waters other waters of the
United States by man-made dikes or barriers, natural
river berms, beach dunes and the like are adjacent wet-
lands.” Wetland parcels 1, 2, 5, 6 and 7 and the S end of
the parcel are separated from the Alameda County Flood
Control District (ACFCD) tidal channel by a 5 foot wide

40a

berm at the fenceline, a 30 foot wide excavation and a 30
footlwide levee road. These are all man-made barriers
that separate the wetland complex from other waters.
The edge of this wetland complex is approximately 65 to
70 feet from the tidal waters.

Wetland parcels |, 2, 5, 6 and 7 are or were contigu-
ous with a surface drainage ditch that discharged through
a set of culverts with tides gates to the ACFCD channel.
The culverts have recently been blocked by inflated air
bladder dams. According to topographic maps supplied
by the applicant, this feature hydrologically connected
the wetlands to the tidal channel, but man-made barriers
have obstructed the hydrologic connection.

(ii) Reasonable Proximity. A reasonable physical dis-
tance to establish adjacency between a wetland and a
tributary has never been defined for jurisdictional pur-
poses. However, it is recognized by the courts that
adjacency includes the concept of reasonable proximity.
Reasonable proximity is dependent on the habitat and
hydrologic systems under consideration. For example, in
large habitat systems such as estuarine waters, integrated
wetland functions can occur even though there are large
intervening distances between the wetlands and the
tributaries. The District has historically considered wet-
lands within and along the historic bay margins as adja-
cent. In the present case, the edge of the historic bay was
contiguous with the subject wetlands. As a general rule,
the intersection of marine, estuarine and palustrine sys-
tems greatly increase the probability of the occurrence or
potential for wetland functions.

In addition, the District has made numerous jurisdic-
tional determinations on the basis of reasonable prox-
imity in the immediate vicinity of the subject project site
(e.g., Catellus, Lyons, Weber, Ardenwood and Union

4]a

Sanitation) that are consistent with the present deter-
mination.

(iii) Wetlands Functions. The wetlands on this parcel
constitute the closest palustrine (nontidal) wetland sys-
tems upslope from the neighboring estarine and marine
waters. Estuaries are unique in that rivers mect the sea
and freshwater mixes with saltwater. Due to their loca-
tion, the wetlands contribute or have the potential to
contribute to important water quality renovative func-
tions. In addition, they function as ecotone transitions,
diverse habitat niches and refuge arcas for migrant or
local shorebirds and waterfowl.

The Administrative Record includes a list of impor-
tant wetland functions proposed by the applicant’s con-
sultant that include wildlife habitat, groundwater recharge
or discharge, floodflow alteration, nutrient removal/
transformation, aquatic diversity/abundance, sediment
stabilization, sediment/toxicant retention, and recrea-
tional opportunities. By performirg these functions the
subject wetlands contribute to the improved quality of
the aquatic environment in general and the tidal waters
in the immediate vicinity in particular.

The Administrative Record clearly documents the fact
that wetland functions occurring within the subject wet-
lands are contributing to the maintenance and/or cn-
hancement of the aquatic environment and are, there-
fore, adjacent wetlands.

(iv) Assessment Area. Duc to the large reduction in the
number of wetlands in the San Francisco Bay area, func-
tions Occurring in remaining wetlands such as the subject
area are considerably more valuable to the maintenance
and enhancement of the aquatic environment. The Bay
Area Wetlands Ecosystem Goals Project (1999) states
that restoration of the Warm Springs area (1.e., the

42a

Fremont-Cushing Plaza Area) would have unique
benefits, including the increase of rare plant species
populations by enhancing the tidal/moist grassland
transition zone and vernal pools. The subject wetlands
include such vernal pools and moist wetlands.

Thus, the wetland functions of the subject wetlands
are remnants of cumulatively important ecological areas
and as such are integrated with biologic and physical
functions in neighboring tributaries and play a key role
in the quality of the habitat of these waters.

(v) 100 Year Floodplain. Prior to the Supreme Court
decision Solid Waste Agency of Northern Cook County
v. United States, 531 U.S. 159 (January 9, 2001)
(“SWANCC’”), the District considered wetlands that are
situated within the 100 year floodplain of a jurisdictional
waterbody as being adjacent to that waterbody. Sce
Additional Factors To Consider When Making “Adjac-
ency’’ Determinations, paragraph 4(a). For the following
reasons, the District believes that the subject wetlands are
within the 100 year floodplain:

(1) A report from the City of Fremont states that “the
site is within an area subject to inundation by a
100 year floodplain.

(2) A Federal Emergency Management Agency
(FEMA) map depicts all of the wetlands on the
project site to be within the 100 year floodplain.

In addressing fills within the 100 year floodplain,
General Condition #26 of the Nationwide Permit pro-
gram, recognizes the importance of integrated hydro-
logic functions that occur between wetlands and water-
bodies located within this current zone.

(vi) Hydric Soils. The Alameda County Soil Survey
identifies a hydric soil unit occurring over much of the

43a

project site. This soil unit occurs where most of the
subject wetlands are located, and the hydric soil unit is
contiguous with the area covered by tidal waters and an
adjacent salt evaporater.

Vegetation transects supplied by the applicant’s con-
sultant on this project, indicate that extant plants are
adapted to saline and alkaline soils. Even though recent
activities on the site have disturbed the soils on and
adjacent to the project boundary, the fact that the hydric
soil unit extends to the tidal waters is evidence that it 1s
contiguous to a jurisdictional waterbody.

b. The second factor the District relied on was its
determination that if the man-made barriers were not in
place, the wetlands would drain across the project site to
the jurisdictional ACFCD channels during storm events.

I regard as irrelevant both the District’s and the
Appellant’s arguments regarding the second factor,
what would happen if the berms were removed. Both
positions are based on speculations as to future condi-
tions that do not now exist.

The District is in accord with the Division’s determination
on this issue.

c. In addition, the District did not explain how some
of the smaller, separately mapped, wetland areas in the
interior of the site could be considered adjacent. In order
for these wetlands on the interior of the site to be consid-
ered jurisdictional, they must be directly adjacent to the
ACFCD channels or they must form a “wetland contin-
uum or complex” with other wetlands on the site.

The District considers the wetlands on the property to be a
complex or continuum. This is based upon site observations
during the initial field verification. At that time Dan Martel
observed, to the best of his recollection, that wetland areas 1,

44a

2, 5, 6 and 7 were hydrologically connected through surface
flow, according to the topographic maps supplied by the
applicant, and would have been hydrologically connected to
tidal waters through a surface drainage ditch and two culverts
with flap gates.

3. This decision serves as the Corns Final Decision under
33 CFR 331.10.

4Sa
APPENDIX E

[LOGO]

DEPARTMENT OF THE ARMY
SAN FRANCISCO DISTRICT, CORPS OF ENGINEERS
333 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105-2197

May 8, 2001

Regulatory Branch (1145b)
Subject: File Number 23205S

Mr. Carl Berg

Baccarat Fremont Developers LLC
10050 Bandley Drive

Cupertino, California 95014-2188

Dear Mr. Berg:

Thank you for your submittal of January 9, 2001 requesting
reevaluation of the extent of Corps of Engineers jurisdiction
at the Fremont Cushing Plaza sitc, located at the southwest
comer of the intersection of Cushing Parkway and Fremont
Boulevard, in the City of Fremont, Alameda County, Califor-
nia. This area was last reviewed in January 1998, as docu-
mented in our letter dated February 17, 1998.

We have reexatnined our previous jurisdictional determina-
tion, in light of recent case law. The U.S. Supreme Court
decision recently invalidated the Corps authori‘y to take juris-
diction over wetlands, solely on the use of migratory bird use.
However, the Court did not eliminate the Corps authority to
regulate wetlands adjacent to a tidal waterway.

Based upon the information provided and our knowledge
of the area, we have determined that all wetlan’s on site are
adjacent to a tidal flood control channel. Th.s channel is
located within 250 feet of the site’s western and southern

46a

boundaries. Separation of these wetlands from the channel, by
man made barriers does not extinguish adjacency. According
to 33 CFR 328.3(c), “Wetlands separated from other waters
of the U.S. by man-made dikes or barriers, natural river
berms, beach dunes, and the like are adjacent.” Furthermore,
the site’s topography indicates that the water in the wetlands
would flow into the channel in storm events, if not for the
man-made barriers. Therefore, the Corps will continue to
assert jurisdiction, based on the map provided with our Feb-
ruary 17, 1998 letter.

One wetland on site, receives tidal flow from the flood
control channel, and is subject to Corps jurisdiction under
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C.
403). All proposed work in this wetland, must be authorized
by the Corps of Engineers pursuant to Section 10 of the
Rivers and Harbors Act.

All proposed discharges of dredged or fill material into
waters of the United States must be authorized by the Corps
of Engineers pursuant to Section 404 of the Clean Water Act
(CWA) (33 U.S.C. 1344). Waters of the United States gen-
erally include tidal waters, lakes, ponds, rivers, streams (in-
cluding intermittent streams), and wetlands.

You are advised that the Corps has established an Admin-
istrative Appeal Process, as described in 33 CFR Part 331 (65
FR 16,486; Mar. 28, 2000), and outlined in the enclosed
flowchart and “Notification of Administrative Appeal Op-
tions, Process, and Request for Appeal” form (NAO-RFA). If
you do not intend to accept the approved jurisdictional deter-
mination, you may elect to provide new information to the
District Engineer for reconsideration or submit a completed
NAO-RFA form to the Division Engineer to initiate the
appeal process. You will relinquish all rights to appeal, unless
new information or a completed NAO-RFA form is received
by the Corps within sixty (60) days of the date of the NAO-
RFA.

47a

If you have any questions, please call Philip Shannin of our
Regulatory Branch at telephone 415-977-8445. All corre-
spondence should reference the file number at the head of this
letter.

Sincerely,

Original Signed By Calvin C. Fong
Calvin C. Fong
Chief, Regulatory Branch

Enclosure
CF:

CESPN-OR-RS
CESPN-OR-R Rdg File

48a
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed NOV 23, 2005]

No. 03-16586
D.C. No. CV-02-03317-CW
Northern District of California, Oakland

BACCARAT FREMONT DEVELOPERS, LLC,
a California limited liability company,
Plaintiff-Appellant,
Vv.

UNITED STATES ARMY CORPS OF ENGINEERS; TIMOTHY A.
O’ROURKE; SAN FRANCISCO STATES ARMY CORPS OF
ENGINEERS; STATE WATER RESOURCES CONTROL BOARD;
CELESTE CANTU, Executive Officer of State Water Re-
sources Control Board; SAN FRANCISCO REGIONAL WATER
QUALITY CONTROL BOARD; LORETTA K. BARSAMIAN,
Executive Officer of San Francisco Regional Water
Quality Control Board; CITy OF FREMONT,

Defendants-Appellees.

ORDER
Before: W. FLETCHER, Circuit Judge.
Appellant’s motion for an extension of time within which
to file a petition for rehearing is hereby GRANTED. Ap-

pellant’s petition for rehearing is due on or before Decem-
ber 5, 2005.

49a
APPENDIX G

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

[Filed DEC 22, 2005]

No. 03-16586
D.C. No. CV-02-03317-CW
Northern District of California, Oakland

BACCARAT FR

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1691%3A1. Public record. Not legal advice.