ELR Citation: ELR 20530
No(s). s. 83-2338 et al (10th Cir. Jun 10, 1985)

The court holds that two intermittent streams, though not navigable-in-fact, have a sufficient impact on interstate commerce to qualify as waters of the United States, subjecting the plaintiffs to Environmental Protection Agency jurisdiction for the issuance of discharge permits under the Federal Water Pollution Control Act (FWPCA). The court rejects the argument that jurisdictional decisions by an agency are subject to review de novo, and instead relies on the Administrative Procedure Act and the value of agency expertise to hold that the decision following an adjudicatory hearing may not be set aside unless it is unsupported by substantial evidence. Noting that Congress' intent in the FWPCA was to regulate waters of the United States to the fullest extent possible, the court holds that the Arroyo del Puerto and San Mateo Creek have sufficient impact on interstate commerce to satisfy the commerce clause, given that they flow for short distances from the discharge points, and that their flow reaches navigable waters through underground transport and during heavy rainfall.

Counsel for Plaintiffs
G. Stanley Crout
Stephenson, Carpenter, Crout & Olmsted
Bokum Bldg., 142 W. Palace Ave., P.O. Box 669, Santa Fe NM 87504
(505) 982-4611

Richard A. Meserve
1201 Pennsylvania Ave. NW, Washington DC 20044
(202) 662-5304

Counsel for Defendant
John L. Wittenborn
New Post Office, Rm. 4433, 13th and Pennsylvania Ave. NW, Washington DC 20026-3986
(202) 633-2182

Before Holloway and Doyle, JJ.