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Sierra Club v. Leslie Salt Co.

Citation: 6 ELR 20363
No. No. 72 561-WTS, 412 F. Supp. 1096/10 ERC 2042/(N.D. Cal., 02/23/1976) Plaintiffs' motion for summary judgment granted

Under the Rivers and Harbors Act of 1899, the Army Corps of Engineers' regulatory jurisdiction over filling in navigable waters on the Pacific Coast extends to the mean higher high water line (MHHW), which is defined as the average limit of the higher of the two daily high tides over a period of 18.6 years. The Corps' fill jurisdiction under the Rivers and Harbors Act is thus coextensive with its dredge and fill jurisdiction under the Federal Water Pollution Control Act Amendments of 1972, which reaches to the mean high water (MHW) mark on the Atlantic Coast but to the MHHW line on the Pacific. This conclusion is supported by the case law and by the underlying principle that federal jurisdiction "extends to the entire bed of a navigable waterway." While the difference between MHW and MHHW is negligible on the eastern seaboard, it is considerable on the West Coast. Defendant's 35,000 acres of diked salt flats along the shore of San Francisco Bay lie below the MHHW line of the Bay in its natural state and are therefore subject to the Corps' permit jurisdiction. The natural rather than the MHHW line as presently altered must be used because the diked areas in question would remain subject to tidal inundation but for the artificial obstruction of the dikes. The court finds, however, that while the Corps is not estopped from regulating future filling activities in the diked areas, it would be a violation of equitable principles to require permits under the Rivers and Harbors Act for the maintenance of dikes which have been in place for more than 20 years without objection from the agency. For an earlier ruling in a companion case by this same court that the Corps' jurisdiction under the FWPCA extends to the MHHW on the Pacific Coast, see 5 ELR 20039.

Counsel for Sierra Club
Michael Sherwood
Sierra Club Legal Defense Fund
311 California Street, Suite 311
San Francisco CA 94104
(415) 398-1411

Counsel for the Corps of Engineers
William L. Want
Pollution Control Section
Land and Natural Resources Division
Department of Justice
Washington DC 20530
(202) 739-5220

David E. Golay, Asst. U.S. Attorney
U.S. Courthouse
450 Golden Gate Avenue
San Francisco CA 94102
(415) 556-1126

Counsel for Leslie Salt Co.
Landels, Ripley & Diamond
450 Pacific Avenue
San Francisco CA 94133
(415) 788-5000