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Leslie Salt Co. v. United States

Citation: 19 ELR 20420
No. Nos. C-85-8615-CAL, -86-4187-CAL, 700 F. Supp. 476/(N.D. Cal., 09/09/1988, 01/11/2089) Judgment for plaintiffs

The court holds that the Corps of Engineers' assertion of jurisdiction under § 404 of the Federal Water Pollution Control Act (FWPCA) over a 153-acre parcel in Alameda County, California, was unreasonable. The court first holds that the proper standard of review for the Corps' interpretation of the statute is the reasonableness standard. The court next holds that the effects of state road construction projects on the property and the United States' flooding of an adjacent wildlife refuge, both of which brought tidewater to the reaches of plaintiff's property, cannot be considered in the determination of whether the property constitutes a "water of the United States." Although the manmade nature of alterations to property is usually irrelevant to § 404 jurisdictional determinations, this case is atypical, since the property is not indisputably a "wetland" or "water of the United States" and the alterations were made without the consent of the landowner.

The court holds that the Corps does not have jurisdiction over the property under § 10 of the Rivers and Harbors Act, since none of plaintiff's property is below the mean high water line, except where affected by the state's road construction projects. Moreover, even if the effects of the road construction projects were considered, the evidence would not be sufficient to establish that the property is a "navigable water of the United States." The court next holds that the Corps does not have jurisdiction under FWPCA § 404. The court first notes generally that land does not become a water of the United States just because water collects, ponds, and stands on the land for a few days after a rain, or because water drains off of the land and ultimately flows into waters of the United States. The court holds that property is not subject to the ebb and flow of the tide, except for some limited inundation caused by bay water reaching the property as a result of the United States' flooding and maintenance of the wildlife refuge. The court also holds that plaintiff's property is not an isolated wetland under the Corps' regulations, since it does not constitute "other waters" under 33 C.F.R. § 328.3(a)(3). Calcium chloride pits and crystallizers dug on the property for manufacturing salt are settling basins rather than natural bodies of water, and in fact are dry most of the year. The court also holds that the property is not an adjacent wetland. First, it is not inundated or saturated, except for a short time during the winter rains. Second, the property does not under normal conditions support wetland-type vegetation. The ability of a small part of the property to support such vegetation was caused primarily by the federal government's flooding of the wildlife refuge, and even if the flooding can be considered to be "normal circumstances," those circumstances are not reflective of the property as a whole. The court holds that there is no prevalance of wetland vegetation on plaintiff's property, rejecting the Corps' position that there is a prevalence of wetland vegetation if most of the vegetation on the property is adapted to saturated soils, even if there is very little vegetation there overall. Much of plaintiff's property has no vegetation at all, and the little vegetation that exists in some areas is dormant for as much as nine months out of the year. Little vegetation on the property overall is adapted to saturated soil conditions. In addition, the court holds that the property is not adjacent to waters of the United States.

Finally, the court holds that plaintiff is not entitled to attorney fees under the Equal Access to Justice Act since the position of the Corps, although unreasonable in some respects, was substantially justified and motivated by a good faith concern for the objectives of Congress and the ecosystem of the area.

[An earlier opinion in this case is published at 17 ELR 21006.]

Counsel for Plaintiff
Edgar B. Washburn, John P. Yeager
Washburn & Kemp
144 Second St., San Francisco CA 94288
(415) 543-8131

Counsel for Defendant
Francis B. Boone, Ass't U.S. Attorney
Federal Bldg., U.S. Courthouse, 450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126