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Leslie Salt Co. v. Froehlke

Citation: 5 ELR 20039
No. No. 73-2294 WTS, 403 F. Supp. 1292/7 ERC 1311/(N.D. Cal., 12/06/1974)

The Army Corps of Engineers has jurisdiction under the FWPCA Amendments of 1972 to require applications for permits for any discharge of dredged material into waters of the United States up to the mean higher high water (MHHW) line. The traditional limit of the Corps jurisdiction, the mean high water (MHW) line, may remain a proper test for determination of such jurisdiction under the Rivers and Harbors Act of 1899, but it does not limit federal regulatory power under the FWPCA. The Corps regulations defining navigable waters as extending landward along the Pacific coast to the MHHW line (the average height of the higher of the two daily high tides over a period of 19 years) are therefore a reasonable and valid interpretation of the statutory definition of such waters as being "waters of the United States." The regulations thus do not unconstitutionally deprive plaintiff of the use of 35,000 acres of diked and reclaimed property along the shores of San Francisco Bay. The fact that the property in question was originally conveyed by the United States to California under the Arkansas Swamp Act of 1850 and then patented by the state to plaintiff's predecessors in interest in no way renders it immune from federal regulation.

Counsel for Plaintiff
Landels, Ripley & Diamond
450 Pacific Avenue
San Francisco, Cal. 94133

Counsel for Defendants
David Golay Asst. U.S. Attorney
U.S. Courthouse
450 Golden Gate Avenue
San Francisco, Cal. 94102

Counsel for Intervening Defendants
John D. Hoffman
Sierra Club Legal Defense Fund, Inc.
311 California Street, Suite 311
San Francisco, Cal. 94104