ELR Citation: ELR 20361
No(s). C-85-8615-CAL (N.D. Cal. Jan 6, 1992)

The court delineates which potions of the former salt crystallizers and calcium chloride pits on a company's property are wetlands under §404 of the Federal Water Pollution Control Act (FWPCA), and issues its findings on the landowner's liability. The court initially adopts the Ninth Circuit's holding that the crystallizers and calcium chloride pits are seasonal waters under the jurisdiction of the FWPCA as "other waters" of the United States. The court then delineates on maps which areas have a sufficient tie to interstate commerce based on their use as a habitat by migratory birds or other endangered species. The findings are based on evidence of the extent of water, soil hydrology, and vegetation. The court next holds that according to previous determinations in the case, the landowner is not in violation of the Rivers and Harbors Act.

Turning to the landowner's FWPCA liability, the court holds that the landowner violated FWPCA §301(a) by building ditches and discharging fill—a defined pollutant—without a permit in areas the court has found subject to FWPCA jurisdiction. The court holds that the landowner violated the FWPCA by blocking the flow of waste through a culvert with plywood and sandbags. This activity does not qualify as the maintenance of an existing structure or a drainage ditch, which would be exempt from FWPCA permit requirements. The purpose of blocking the culvert was to prevent the flow of water onto a wetland, which would convert a §404 wetland to a non-wetland. FWPCA §404(f)(2) precludes the exemption from permit requirements of activities that bring about a change in use. The court holds that the landowner's construction of a concrete bulkhead and a tide gate, designed to control the flow of water through the culvert, violated the FWPCA. The court finds that this activity was the construction of a new south tide gate, not the maintenance of the existing north tide gate, and caused a change in use. The installation of the tide gate constitutes the placement of a pollutant, and the side-casting and reposit of excavated wetlands, and the pouring of concrete, would constitute the discharge of a pollutant.

[Prior decisions in this case are published at 17 ELR 21006, 19 ELR 20420, and 20 ELR 20477. A related decision is published at 22 ELR 20359.]

Counsel for Plaintiff
Edgar B. Washburn
Washburn, Briscoe & McCarthy
55 Frisco St., Ste. 600, San Francisco CA 94133
(415) 421-3200

Counsel for Defendants
Thomas H. Pacheco, Scott A. Schachter
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000