ELR Citation: ELR 20477
No(s). 89-15244 (9th Cir. Feb 6, 1990)

The court holds that the Corps of Engineers has jurisdiction over a 153-acre tract of artificially ponded land under Federal Water Pollution Control Act (FWPCA) §404, even though the Corps' jurisdiction is, in part, the result of inundation caused by the Corps itself. The undeveloped tract of land, originally used as pastureland, was used to construct basins and pits for the manufacture of salt. The court first finds that Congress intended that FWPCA jurisdiction should extend to property that government actions helped make aquatic. The court holds that because the Corps was not directly or solely responsible for flooding the land and did not intend to expand its own jurisdiction by flooding the land, the fact that third parties, including the government, are responsible for flooding the land is irrelevant to the Corps' jurisdiction. If the Corps' regulatory activities under the FWPCA harm a landowner, the appropriate remedy is to seek damages through inverse condemnation proceedings, not to restrict the scope of the Corps' jurisdiction.

The court next holds that whether wetlands are artificially or naturally created is irrelevant to the Corps' regulation defining wetlands as areas that under normal circumstances support wetland vegetation. The court further holds that this wetland is an adjacent water of the United States because culverts connect the wetland to a neighboring slough. The court holds that the former basins and pits are "other waters" under Corps' regulations, and the seasonal ponding of these basins and pits poses no obstacle to Corps' jurisdiction. However, since "other waters" must still have sufficient connections to interstate commerce to come under the Corps' jurisdiction, the court remands for a determination of the degree of ties these waters have to interstate commerce.

[Previous cases in this litigation are published at 17 ELR 21006 and 19 ELR 20420.]

Counsel for Plaintiff-Appellee
Edgar B. Washburn
Washburn, Briscoe & McCarthy
144 Second St., P.O. Box 880130, San Francisco CA 94188
(415) 543-8131

Counsel for Defendants-Appellants
Michael P. Healy
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2757

Before Pregerson and Rymer, JJ.