ELR Citation: ELR 20267
No(s). C 87-6063 TEH (N.D. Cal. Jun 26, 1992)

The court holds that wetlands in an area filled prior to the enactment of the Federal Water Pollution Control Act (FWPCA) can be within the jurisdiction of the U.S. Army Corps of Engineers (the Corps). The court holds that the Corps' determination that it did not have jurisdiction for a site that contained wetlands, which had been filled prior to the enactment of the FWPCA in 1975, is contrary to law, and thus, not entitled to deference. The Corps read the Act's language too narrowly, and thus, misapplied the phrase "under normal circumstances" in the statutory definition of wetlands. The Corps' jurisdictional determination should have turned on whether or not the site contained wetlands by 1975. The court holds that the Corps' two-step analysis, in which it first looks to see whether wetlands are present and then determines whether those wetlands are normal, imposes an additional qualification for jurisdiction, in addition to wetland status, which is circular, redundant, and simply does not exist. As a legal matter, the Corps' finding that the site contained wetlands but that the normal circumstances of the site was dry land, because the site had been filled in 1972 and was dry in 1975, is nonsensical. The "under normal circumstances" language allows the Corps to find that areas that exhibit wetlands characteristics are nonetheless not wetlands because the area cannot, under normal circumstances, support wetland-type vegetation. It does not allow the Corps to find that the presence of wetlands in an area is abnormal. A finding by the Corps that wetlands are present is a determination that their presence is normal. In addition, the court holds that the Corps' interpretation of the "under normal circumstances" language is in conflict with Ninth Circuit case law and violates congressional intent. As long as there are wetlands on the site, and they are in any way within Congress' Commerce Clause power, they are subject to the Corps' jurisdiction. The Corps' interpretation, which exempts from the FWPCA's permit requirements those wetlands which reemerge on nonabandoned sites, undermines Congress' intent to preserve and protect ecosystems. The court remands the jurisdictional determination to the Corps for a determination consistent with this opinion within 180 days. Finally, the court holds that the Corps could conclude that a portion of the filled area was abandoned, and that the large bodies of water on the abandoned portion were "other waters of the United States" within the jurisdiction of the Corps.

[Prior related decisions are published at 18 ELR 20992, 18 ELR 21401, 20 ELR 21264.]

Counsel for Plaintiffs
Zach Cowan
655 Sutter St., Ste. 200, San Francisco CA 94102
(415) 202-9789

Alan Waltner
Environmental Law Offices
1736 Franklin St., 8th Fl., Oakland CA 94612
(510) 465-4494

Counsel for Defendants
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Benjamin F. Wilson, Brenda Mallory
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000