United States v. 0.21 Acres

Nos. 77-393-Civ-CA, -2776-Civ-CA (S.D. Fla. May 15, 1981)

In a pre-trial ruling, the district court determines that environmental laws and regulations enacted prior to the filing of a notice of condemnation are relevant to a determination of the highest and most profitable use of defendants' condemned land. Defendants are the owners of property located in Ochopee, Florida that was included in the acquisition program for the creation of the Big Cypress National Preserve, which was established by Congress on October 11, 1974. After defendants rejected plaintiff's offer to purchase the property at its appraised value, plaintiff initiated court proceedings and subsequently filed a declaration of taking for defendants' property on October 28, 1978. Initially, the court rejects defendants' contention that the date of the announcement of the Big Cypress National Preserve is the critical date in ascertaining the extent of the environmental restrictions with which the property is burdened, and rules that any environmental laws and regulations enacted prior to the filing of the notice of condemnation must be considered by the court in its determination of the highest and best use of the condemned property. Because prospective uses of which the property is allegedly capable are speculative due to regulatory restrictions, just compensation must be determined in light of applicable environmental regulations that were promulgated prior to the filing of the notice of condemnation.The court rejects as unripe for review defendants' contention that restrictions on the use of their property amount to a taking of private property. In addition, the court rejects defendants' argument that plaintiff must prove that the proposed uses to which defendants would put their property are not in the public interest and thus not cognizable in a condemnation proceeding. Plaintiff need only show that defendants' property is within the ambit of the applicable regulations. Turning to the proper application of environmental laws and regulations, the court concludes that, prior to discharging dredged or fill material into portions of their property, defendants would be required to obtain a permit from the Army Corps of Engineers pursuant to § 404 of the Federal Water Pollution Control Act (FWPCA) since federal jurisdiction under § 404 has existed since October 18, 1972 and since the relevant portions of defendants' property constitute wetlands. Furthermore, defendants' property is subject to the restrictions imposed under § 10 of the Rivers and Harbors Act of 1899 since Snook Canal, located on defendants' property, is a navigable waterway of the United States and since federal jurisdiction to regulate activities concerning the canal has existed since 1899. Finally, the court rejects defendants' contention that plaintiff is estopped from asserting the application of the permit requirements in the subsequent condemnation proceedings. The Army Corps of Engineers' determinations regarding federal regulatory jurisdiction under the FWPCA and the Rivers and Harbors Act are actions arising out of the exercise of the federal government's sovereign powers and thus cannot be frustrated under the doctrine of estoppel.

Counsel for Plaintiff
Arnold M. Weiner, Ass't U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 350-4573

Counsel for Defendants
William Moore
Brigham, Reynolds, Byrne & Moore
Suite 1000-D, 2699 S. Bayshore Dr., Miami FL 33133
(305) 858-2400

[12 ELR 20327]

Atkins, J.:

Findings of Fact and Conclusions of Law

THIS CAUSE is before this Court for the resolution of certain pretrial issues of law raised by plaintiff and defendants concerning the highest and most profitable use of certain parcels of defendants' property in light of the alleged existence and applicability of Federal and State jurisdiction to regulate the use of that property. The scope of the Federal and State control over these parcels of land concern the obtaining of permits for activities in waters of the United States and the State of Florida. In an attempt to uncomplicate the presentation of evidence, the parties filed a joint motion which amended this Court's Order setting all outstanding issues for an evidentiary hearing. This first evidentiary hearing is limited to jurisdictional and estoppel issues.

The jurisdictional issues came before the Court in plaintiff's Unilateral Pretrial Stipulation filed June 27, 1979, and defendants' Unilateral Pretrial Stipulation filed June 28, 1979. These issues were to have been heard by the late Judge Mehrtens during the early summer of 1979, but, as a result of two mandamus proceedings, the case was reassigned to Judge King. In June 1980, Judge King requested memoranda of law on the outstanding issues of fact and law. These memoranda were filed during June 1980. On October 7, 1980, Judge King entered Orders which resolved a number of the outstanding issues, particularly reaffirming the use of the Big Cypress Land Commission. Judge King requested additional memoranda which were filed by plaintiff on November 12, 1980, and by defendants on November 17, 1980. These cases were then transferred to this Court.

The Big Cypress National Preserve was established by an Act of Congress and approved on October 11, 1974. Pub. L. No. 93-440, 16 U.S.C. § 698(f) (1974). Section 1(a) of the Act states the purpose for which the Preserve was created was to preserve and protect the Big Cypress watershed. In 1973, the State of Florida enacted the Big Cypress Conservation Act of 1973, and designated the land and water within its boundaries as an area of Critical State Concern. FLA. STAT. § 380.055 (1973).

For approximately a year after the enactment of the Big Cypress National Preserve there was some question concerning the inclusion of the defendants' land, comprising the Ochopee area, in the acquisition program. (See Jack Stark Memo, Def. Exh. CC). The State of Florida, on the other hand, excluded the Ochopee area from its area of Critical State Concern. (See Def. Exh. U: Letter from Eastern Tin, Fla. Dept. of Administration).

Forrest Harmon and his wife made their first land purchase in the Ochopee area in 1958 and in 1962 began to reside in the area. The Harmons also acquired an additional property in that area in the same year. The Harmons then became partners with Charles Caldwell and his wife and began acquiring additional acreage in Ochopee, Florida. The first partnership terminated with the sale of all the partnership lands in A.S. Johnson Corporation. The corporation survived less than a year. The Harmons and Caldwells again became partners in 1969 by acquiring the assets and liabilities of the A.S. Johnson Corporation.

In 1970, during the second Harmon-Caldwell partnership, there was a purchase of the Waterfront Development property comprising 280 acres in section 33. This property included Snook Canal which is a navigable canal because it gives the rivers of Everglades National Park access to the Gulf of Mexico.

The Harmon-Caldwell partnership lasted until November 1975, when it was amicably dissolved. The dissolution was accomplished by the transfer of property in sections 34 and 35 and the assumptions by the Caldwells of a note in the amount of [12 ELR 20328] $325,000, held by Southeast Bank. All of the remaining property in sections 27, 28, 33 and 34 along with the remaining partnership debt was transferred to and assumed by the Harmons. Upon a close inspection of the Court file, it appears that the partnership dissolution, division and subsequent sale gave rise to title difficulties which were not fully resolved until after the Declaration of Taking was filed on October 24, 1978.¹

Ernest Adamic made his first purchase of property in the Ochopee area in 1970 and continued to purchase property through November 21, 1977. (Pl. Exh. 19). Tracts 507-04 and 507-03 contain approximately 280 acres in the west half of section 28 and are zoned to accommodate 266 one acre lots. (Def. Exh. Q).

On June 15, 1975 the Big Cypress National Preserve land acquisition office was opened in Naples, Florida. The first priority of the land acquisition office was thoroughly to acquaint the staff to the area. The appraisal staff, headed by Raymond Cleary, spent the period from June to September in the project area to become familiar with the land so that they could later appraise it. (Sewell testimony).

Sewell first met the Harmons in July 1975, when the Chief Cartographer for the project went to Ochopee for the purpose of securing the maps and surveys to aid in mapping the area. (Sewell, F. Harmon, D. Harmon testimony).

Proposals for the appraisal of the Harmon property were solicited in January of 1976. The contract for the appraisal was awarded in March, 1976. The appraisal of the Harmon property was completed, reviewed and accepted by the Park Service in September, 1976. Shortly thereafter Mr. Raymond of the project office made an offer on behalf of the Park Service to purchase the property at the appraisal value. When asked what would happen if they refused the offer, Raymond advised that delay due to condemnation procedures would occur. (Harmon testimony).

The Harmons rejected the Parks Service's offer. A notice of filing of these cases were filed in this Court on February 22, 1977. On October 28, 1978 the declaration of taking was filed for Harmon's property.

Plaintiff claims that the portions of defendants' property identified as Tracts 404-24, 404-33, 404-34, 412-07, 412-41 and 507-04, formerly owned by Forrest L. Harmon,² and tracts 404-44, 412-40 and 507-03, owned by Ernest Adamic are in waters of the United States³ and therefore within the jurisdiction of the Army Corps of Engineers. Plaintiff also claims that the eastern half of tract 404-24 is also in waters of the State of Florida.⁴

Defendants deny that any portion of their holdings are in waters of the United States or the State of Florida. Furthermore, defendants assert that even if their property was subject to the permit requirements applicable to all other property in waters of the United States and/or the State of Florida, plaintiff is estopped from asserting the applicationof the regulations in a subsequent condemnation proceeding to determine just compensation.⁵

The defendants are correct in asserting that the law of this case, as pronounced by Court Order on October 7, 1980, is "that any laws imposing development restrictions which are enacted after the condemnation authority files its notice of taking may not be applied in determining the highest and best use of the property condemned." The defendants attempt to carry "the law of the case" one step further by contending that the plaintiff acquired no greater interests in defendants' property by virtue of the filing of a notice of taking than it did by the announcement of the project on October 11, 1974. The mere fact that Judge King entered an Order stating that the date of the notice of filing was the critical date in the stopping of the applicability of after-enacted developmental restrictions implies that he rejected the assertion made by the defendants that the date of the announcement of the project should be the critical date.

Furthermore, from the evidence presented at trial, it appears that there was some uncertainty as to whether or not defendants' property located in Ochopee, Florida would be taken by the Federal or State governments. The boundaries of the Big Cypress National Preserve were first tentatively identified in 16 U.S.C. § 698(f)(1)(b) by reference to the map entitled Big Cypress National Preserve dated November, 1971, and numbered B.C.-91,001 (Def. Exh. BB).⁶ The Act recognizes that the area shown on the map was not necessarily the final boundaries of the Preserve, nor was it determined that all of the land and water within the boundary was to be taken. Section 2 of the Act limits the acquisition of property to the lands and interests in lands necessary to achieve the purpose of the Act. Within a year from the passage of the Act these lands were to be identified.⁷

In 1973 the State of Florida enacted the Big Cypress Conservation Act of 1973, FLA. STAT. § 380.055 (1973), and designated the land and water within its boundaries as an area of Critical State Concern. The State of Florida had specifically excluded the area known as Ochopee from the purview and effect of its Act.⁸ Thus, the date of the announcement of the project is not the legally most significant date in determining the applicability of environmental regulations to the property involved. Rather, this Court upholds the previous ruling made by Judge King that environmental regulations enacted after the filing of the notice of condemnation are not to be considered by this Court in resolving the pretrial issues of law.

The defendants cite several equitable principles in order to bolster their argument that all regulations promulgated after the announcement of the project should not affect the "highest and best use" determination for the property. In implementing the mandate of the fifth amendment, certain "working rules" and "practical standards" have been developed by the courts. Among these working rules and practical standards are the following: The measure of compensation is to be the value of the property at the date of taking. See, e.g., United States v. Miller, 317 U.S. 369 (1943); fair market value takes into consideration "the highest and most profitable use" for which the property is adaptable. Olson v. United States, 292 U.S. 246, 255 (1934); and an owner is neither entitled to any increment nor burdened with any devaluing of his land occasioned by the Government's undertaking of the project. Proper application of these and other rules satisfy any equitable notions that the just compensation clause of the fifth amendment requires.

Highest and Most Profitable Use

As previously mentioned, one of the basic principles of eminent domain law is that condemnees are entitled not just to the value of their properties as used at the date of taking, but rather to the value their properties would command in the open market in light of the highest and most profitable use to which it might reasonably be devoted in the near future. "The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held." Olson v. United States, 292 U.S. 246 (1934). Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonable should be excluded from consideration, for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value.

[12 ELR 20329]

During a hearing to determine just compensation the burden of proof is upon the landowner to produce credible evidence that a potential use is reasonably practicable and reasonably probable within the near future. Once that is established it is then for the commission (trier of fact) to decide whether the property's suitability for this use enhances its market value, and, if so, by how much. United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979). In other words, the judge determines whether an arguable element of value is a legally cognizable element of value for which compensation may be awarded, and, where the judge does find the element a legally compensable one, the trier of fact decides whether it is in fact an element of fair market value, and, if so, just how much value it in fact represents.

More importantly to this hearing, a prospective use may be speculative, and therefore subject to exclusion from consideration by the trier of fact not just because there is insufficient evidence of the property's adaptability or of any market demand for that use, but rather because the use simply is not permitted by law. Regulatory restrictions may preclude an otherwise possible use even more decisively that the inherent physical characteristics of a property. It is clear that just compensation must be determined in light of such regulatory restrictions. Thus, in screening proffered potential uses to ascertain whether there is sufficient evidence of their practicability and probability to warrant submission to the trier of fact, the judge must take into account any regulatory restrictions applicable to the property and the proposed use. And, if the judge finds that the regulations preclude the proffered use, he must, pursuant to Rule 71(A)h, exclude evidence of that use from the just compensation determination.

Construing the applicability of governmental regulations is, of course, a paradigmatic judicial function. A legal restriction either applies to the proposed use, or — it does not — and that is a quintessential question of law for the judge to decide. Prior to the parties' presentation of valuation evidence to the Commission, the Court will resolve any dispute regarding the applicability of regulations impacting upon the issue of highest and best use.

Defendants claim that the Big Cypress National Preserve Act renders ineffective and meaningless any subsequent legislation dealing with the same subject matter. The argument suggests that since the Big Cypress National Preserve Act and the environmental regulations accomplish the same purpose, the preservation of the waterways of the United States and Florida, the application of the environmental regulations to the Big Cypress watershed would be unnecessary. The defendants boldly assert such an argument without the citation of any authority. After carefully researching the subject this Court has come to the conclusion that no authority exists.

"Just compensation means a compensation that would be just in regard to the public, as well as in regard to the individual." Bauman v. Ross, 167 U.S. 548 (1897). The underlying principle of just compensation is the concept that a dispossessed landowner "is entitled to be put in as good a position pecuniarily as if his property has not been taken." Olson v. United States, 292 U.S. 246, 555 (1934). Accordingly, when determining the fair market value of the defendants' land, the trier of fact should not take into consideration the effect of the Big Cypress National Preserve Act.⁹ However, in this hypothetical market place, any knowing buyer of the defendants' land would certainly want to know about the existence and extent of any and all regulatory restrictions applicable to the property. In order for this Court to make a proper determination about what evidence the trier of fact should consider in determining what the highest best use of the land is, the environmental regulations must be considered.

Application of the Regulations

A major area of disagreement during the evidentiary hearing was the proper application of the environmental regulations allegedly requiring the defendants to get permits for certain activities occurring on their land. The defendants assert that the application of these regulations to the defendants' property is violative of the fifth amendment to the United States Constitution. This Court believes that that argument is conjectural at best.

The Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et seq. (as amended in 1977)¹⁰ commonly referred to as the Clean Water Act, is a comprehensive effort by Congress to restore, and to maintain, the "chemical, physical and biological integrity of the nation's waters." 33 U.S.C. § 1251, Section 101(a). The essence of the act prohibits the discharge of pollutants¹¹ into the waters of the United States, except when in compliance with various sections of the Act.

Section 404 of the Act, 33 U.S.C. § 1344, extablishes a program for the issuance of permits for the discharge of dredged and fill material subject to certain criteria and standards aimed at achieving the goals of the Act. In recognition of the Corps of Engineers pre-existing regulatory program covering deposits of dredged and fill material into traditionally defined navigable waters of the United States under section 10 of the Rivers and Harbors Appropriations Act of 1899,¹² 33 U.S.C. § 403, Congress gave the Secretary of the Army, acting through the Chief of Engineers, authority to issue permits under FWPCA for the discharge of dredged or fill material into waters of the United States, subject to certain limitations and restrictions. See Section 404(a). EPA, in conjunction with the Corps, develops the substantive guidelines which govern permit issuance. See Section 404(b). EPA, in turn, has the authority under Section 404(c) to veto a permit on environmental grounds. Both EPA and the Corps have enforcement authority, under Section 309, 33 U.S.C. § 1319, and 404(s) respectively.

The major contention by the defendants concerning the application of these regulations to their property centers around the definition of the term "navigable waters." The Section 301 prohibition against discharge and the Section 404 permit program apply to discharges into "navigable waters," which are defined in Section 502(7) of the Act as "waters of the United States including the territorial seas." 33 U.S.C. § 1362(7). The legislative history emphasizes, and numerous courts have concurred, that Congress intended "waters of the United States" to be given the broadest possible consitutional interpretation under the commerce clause, Art. I, § 8, cl. 3. Conference Report, S. REP. No. 92-236, 92d Cong., 2d Sess. 114, reprinted in 1972 U.S. CODE CONG. & ADMIN. NEWS 3822. See also United States v. Ashland Oil & Transportation Co., 504 F.2d 1317, 1323-24 [4 ELR 20784] (6th Cir. 1974); Leslie Salt v. Froehlke, 578 F.2d 742, 754-55 [8 ELR 20480] (9th Cir. 1978); United States v. Byrd, 609 F.2d 1204 [9 ELR 20757] (7th Cir. 1979); Commonwealth of Puerto Rico v. Alexander, 438 F. Supp. 90, 95 [7 ELR 20751] (D.D.C. 1977); [12 ELR 20330] Wyoming v. Hoffman, 437 F. Supp. 114 (D. Wyo. 1977); United States v. Holland, 373 F. Supp. 665, 672-73 [4 ELR 20710] (M.D. Fla. 1974). Congress adopted this definition because "[w]ater moves in hydrolic cycles and it is essential [in order to meet the goals of the Act] that the discharge of pollutants be controlled at the source." S. REP. No. 92-414, 92 Cong., 1st Sess. 77 (1971), reprinted in U.S. CODE & ADMIN. NEWS 3668, 3742 (1972).¹³

The congressional intent and judicial interpretations of "navigable waters" goes far beyond the traditional interpretations of that phrase. In United States v. Holland, 373 F. Supp. 665, 667 [4 ELR 20710] (M.D. Fla. 1974), the EPA instituted an action under the FWPCA to prevent the placement of fill material above the mean high water line in coastal wetlands similar to those on protions of defendants' properties. The court held:

The mean high water line is no limit to federal authority under the FWPCA. While the line remains a valid demarcation for other purpose, it has no rational connection to the aquatic ecosystems which the FWPCA is intended to protect.

Defendants argue that under certain circumstances the imposition of these regulations could amount to a "taking of private property." See, e.g., Kaiser Aetna v. United States, 444 U.S. 164 [10 ELR 20042] (1979); United States v. Twin City Power Co., 350 U.S. 222 (1956); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). The defendants make a valid distinction between the governmental authority to regulate traditionally defined navigable waters and non-navigable waters. "The interests of the United States in the flow of a navigable stream originated in the Commerce Clause. That Clause speaks in terms of power, not in terms of property. But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one. The power is a privilege which we have called a 'dominant servitude.'" United States v. Twin City Power Co., 350 U.S. 222, 224 (1956). However, whether a statute or regulation that went so far amounted to a "taking" is an entirely separate question. The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters in their natural condition are in fact capable of supporting public navigation. See United States v. Cress, 243 U.S. 316 (1917). "The navigational servitude, which exists by virtue of the Commerce Clause in navigable streams, gives rise to an authority in the Government to assure that such streams retain their capacity to serve as continuous highways for the purpose of navigation in interstate commerce." Kaiser Aetna, 444 U.S. at 177.

The determination of whether the regulatory power of the sovereign requires the exercise of its powers of eminent domain is the same in both navigable and non-navigable waters. In navigable waters, riparian owners do not have a legally cognizable property interest. Thus, there is nothing for the Government to "take." In non-navigable waters the riparian owners have cognizable property rights. Nevertheless, the Government has the power under the Commerce Clause to regulate those property rights. Should the regulations become too intrusive, however, the regulations would amount to a taking of private property by the sovereign requiring just compensation. See United States v. Willow River Co., 324 U.S. 499, 502 (1945).

In the case at bar, any argument about whether the regulations retricting the land use of the defendants' property amounts to a taking by the Government is not ripe for judicial determination. The issue before this Court is the threshold issue of whether the Army Corps of Engineers has jurisdiction over the defendants' property. Moreover, since the defendants never applied for permits to the appropriate governmental agencies, it would be impossible for this Court to resolve the issue raised by the defendants. Finally, the defendants' reliance upon the Deltona Corp. v. United States,¹⁴ No. 370-76 Trial Div. (Ct. Cl. Nov. 25, 1980) to support their argument that the imposition of these governmental regulations would amount to a taking is misplaced because in that case the defendants' permit application was denied and it was that denial which the Court of Claims (trial division) held constituted a de facto condemnation.

In conjunction with the "taking" argument, the defendants contend that in order for the various statutes and regulations to be constitutionally applied to defendants, the Government has the burden of proof to demonstrate that the proposed uses to which the defendants would put their properties is not in the public interest. The defendants are correct in asserting that state law governs the defining of the existence of a property right for which compensation must be made. United States v. Certain Property Located in Manhattan, 396 F.2d 439 (2d Cir. 1962). All other rights, however, are governed by federal law, and state decisions and statutes are neither controlling nor persuasive. See United States v. 93.970 Acres of Land, 360 U.S. 328 (1959); West, Inc. v. United States, 374 F.2d 218 (5th Cir. 1967). Accordingly, federal law outlining the power of condemnation, the procedures for condemnation, the admissibility of evidence, and the measure of damages controls. See WRIGHT & MILLER, 12 FEDERAL PRACTICE & PROCEDURE § 3042. To suggest that the plaintiff has the burden of proof to demonstrate that the proposed uses to which defendants would put their properties is not in the public interests finds no support in federal law. As the District Court in the Middle District of Florida states, "The Commerce Clause gives Congress ample authority to reach activities above the mean high water line [traditionally defined navigable waters] that pollutes the waters of the United States." United States v. Holland, 373 F. Supp. 665 [4 ELR 20710] (M.D. Fla. 1974). Thus, if the defendants' property comes within the ambit of the federal statutes, then no additional showing that defendants would not use their property in the public interest is required.

Obviously, the defendants also argue that in order for various state statutes and regulations to be constitutionally applied to the defendants the Government has the burden of proving that the proposed uses to which the defendants would put their properties is not in the public interest.This Court disagrees with the defendants' position.

The leading case¹⁵ to support the defendants' argument is Zabel v. Pinellas County Water & Navigation Control Authority, 171 So. 2d 376 (Fla. 1965). In Zabel the Supreme Court of Florida held that the statute in question would be unconstitutional as applied if it required the appellants to prove the proposed landfill would not materially and adversely affect any of the eight specified public interests. Zabel is of limited value, however, because the facts differ significantly from the case at bar. In Zabel the property in question had been transferred from the state to the landowners by a conveyance whichcarried with it a statutory right to bulkhead and fill of the property purchased. The state's subsequent denial of the fill permit amounted to the state's reneging on its agreement. The Supreme Court of Florida found that the rights to dredge, fill, and bulkhead the land were the appellants' "only present right attributable to ownership of the submerged land itself." Id. at 381. Denying those rights would have deprived the owners of the only beneficial use of their property. To then place the burden of proof on the owners to show that the dredging and filling would have no adverse impact on public interest would have been unconstitutional. See Graham v. Estuary Properties, Inc., (No. 58,485) [11 ELR 20992] (April 16, 1981). When the defendants bought the property in question in this case, however, they did so with no reason to believe that the conveyance carried with it a guarantee from the state that dredging and filling of the property would be permitted.

Zabel stands for the proposition that the burden is on the state to show that an adverse impact will result if a permit is [12 ELR 20331] granted. The defendants have not applied for a state permit, therefore, this issue cannot at this time be resolved by this Court. Furthermore, in holding that the state has the initial burden of showing that a proposed land use will have an adverse impact in light of Section 380.06(8), this Court reaffirms the rule that the exercise of the state's police power must relate to the health, safety, and welfare of the public and may not be arbitrarily and capriciously applied. Should the state have denied a permit to the defendants without showing the existence of an adverse or unfavorable impact, there would be no showing that the regulation protected the health, safety, or welfare of the public.Without such a showing the denial would be arbitrary and capricious and therefore unconstitutional.

The Scope of the Corps' Jurisdiction

The Corps of Engineers, following the enactment of Section 404, continued to limit its regulatory program to those activities taking place in waters subject to the Corps' traditional jurisdiction. These regulations were challenged as being too restrictive in scope in Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 [5 ELR 20285] (D.D.C. 1975). In that case the court held that Congress, in enacting the 1972 FWPCA Amendments, had "asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution." Id. at 686. Moreover, the court found that the Corps' regulations implementing Section 404 Were too narrow and directed the Corps to publish new regulations "clearly recognizing the full regulatory mandate of the Water Act." Id.

Pursuant to the court's order, the Corps published interim final regulations. See 40 Fed. Reg. 31320 (July 25, 1975), 33 C.F.R. § 209.120. The regulations defined the term "navigable waters" for purposes of Section 404 to include:

(b) All coastal wetlands, mudflats, swamps, and similar areas that are contiguous or adjacent to other navigable waters. "Coastal wetlands" include marshes and shallows and means those areas periodically inundated by saline or brackish waters and that are normally characterized by the prevalence of salt or brackish water vegetation capable of growth and reproduction

(h) Freshwater wetlands including marshes, shallows, swamps and similar areas that are contiguous or adjacent to other navigable waters and that support freshwater vegetation. "Freshwater wetlands" means those areas that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.

Since the Corps had not previously enforced the permit requirements in waters of the United States other than in traditional navigable waters, the Corps "grandfathered" all discharges of dredged or fill material in such other waters which were completed before the date of the interim regulation. 33 C.F.R. § 209.120(e)(2)(iii); 40 Fed. Reg. 31326 (July 25, 1975) (left col.). See also 40 Fed. Reg. 31321 (July 25, 1975) (right col.). Should there be another evidentiary hearing to determine the reasonable probability of obtaining a permit, the limited enforcement of the Corps authority over only traditionally defined navigable waters and the three phased adoption of the Corps' full authority would aid this Court in that determination.

On July 19, 1977, the Corps issued final regulations that define "waters of the United States" to include:

(1) The territorial seas with respect to the discharge of fill material;

(2) Coastal and inland waters, lakes, rivers, and streams that are navigable waters of the United States, including adjacent wetlands;

(3) Tributaries to navigable waters of the United States, including adjacent wetlands;

(4) Interstate waters and their tributaries, including adjacent wetlands; and

(5) All other waters of the United States not identified in paragraphs (1)-(4) above, such as isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.

33 C.F.R. § 323.2(a)(1-5).

The July 19, 1977, regulations amend the definition of wetlands as follows:

. . . those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

33 C.F.R. § 323.2(c).¹⁶ The 1977 revised definition did not reflect a change in the Corps' policy from that expressed in the July 25, 1975 interim final regulations in implementing the Section 404 program. 42 Fed. Reg. 37128-29.

Section 10 of the Rivers and Harbors Appropriations Act of 1899 ("RHA"), 33 U.S.C. § 403, was enacted March 3, 1899. It provides:

The creation of any obstruction not, affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

On December 18, 1968 the Corps promulgated new regulations implementing the Section 10 permit program. (33 Fed. Reg. 18760). These regulations provided that permit applications would be evaluated in the context of a public interest review, which included insideration of factors other than navigation. Specifically, the Corps would examine the ecological consequences of the proposed work.¹⁷

In 1972 the Corps published regulations administratively defining "navigable waters of the United States." 37 Fed. Reg. 18290 and 18911 (September 9 and 16, 1972), codified at 33 C.F.R. 209.260. The Corps' definition included all waters that were navigable in fact, and those that were used or were susceptible to use in interstate commerce, and including artifical canals.

The State of Florida administers a dredge and fill permit program regarding alterations to and discharges into navigable waters of the State of Florida pursuant to FLA. STAT. Sections 253 and 403. The State regulations implementing this program, Chapter 17-4 of the Florida Administrative Code, became effective on June 10, 1975.

The Florida program requires a permit for discharges of fill into navigable waters and adjacent wetlands. Under the Florida rules, the existence of a dike or a berm along a water body cuts off a wetland behind it destroying its "adjacency" for State regulatory purposes.¹⁸ The Florida rules list vegetation species [12 ELR 20332] that identifies various areas as wetlands. Chapter 17-4, Florida Administrative Code.

The Corps jurisdiction to require permits for the discharge of dredged or fill material in coastal wetlands under Section 404, 33 U.S.C. § 1344, began on October 18, 1972, the date on which the Federal Water Pollution Contol Act Amendments of 1972 were enacted. Pub. L. No. 92-500, 86 Stat. 816. It was the enactment of the FWPCA that extended federal regulatory jurisdiction to control water pollution to all waters of the United States which includes all waters that affect interstate commerce. 33 U.S.C. §§ 1311(a), 1362(7), 1362(12).

The Corps decided to phase-in the permit program regulating the discharge of dredged material in all waters of the United States over a two-year period because of manpower and budgetary constraints. 40 Fed. Reg. 31320 (July 25, 1975) (middle co.); 40 Fed. Reg. 31321 (July 25, 1971) (right col.); 33 C.F.R. § 209.120(e)(2)(i). Phase I included those traditionally defined navigable waters and their contiguous or adjacent wetlands.¹⁹ Phase II waters, which were implemented after July 1, 1976, included primary tributaries and lakes, and their adjacent wetlands. Finally, Phase III which included discharges of dredged or fill material in all waters of the United States became effective as of July 1, 1977. 33 C.F.R. § 209.120(e)(2)(1).

In light of the budgetary and manpower constraints on the Corps the purpose of the phase-in program was to enable "the protection of those wetlands and water resources that were in immedate danger of being further destroyed through unregulated development." 40 Fed. Reg. 31321 (July 25, 1975) (right col.). Accordingly, discharges of dredged or fill material that occur before a particular water body fell under a particular phase were sanctioned provided certain prescribed conditions were met before discharge occurs (i.e., obtaining state water quality certification). Id. More importantly, the phasing-in program did not automatically exempt all discharges of dredged or fill material not covered by a particular phase from the permitting requirement of the FWPCA. Rather, the Corps had the discretion to exercise jurisdiction over any activity involving the discharge of dredged or fill material in those cases where the activity would have a significant impact on the environment. 33 C.F.R. § 209.120(e)(2)(ii); United States v. Byrd, 609 F.2d 1204 [9 ELR 20757] (7th Cir. 1979).²⁰

Contrary to the defendants' assertions, the phasing-in schedule adopted by the Corps did not set the date for the establishment of federal jurisdiction under the FWPCA. Rather, jurisdiction existed since October 18, 1972. Nevertheless, the phasing-in schedule would have probative value in establishing the reasonable probability of defendants obtaining a permit or being exempted from these regulations.

The defendants' argument that in order for wetlands to be within the jurisdiction of the Corps the wetlands must be adjacent to "traditionally defined navigable waters" is incorrect. As previously stated, the purview of the FWPCA is not circumscribed by traditionally defined notions of navigability. The scope of the FWPCA extends to the fullest extent of the commerce clause. Furthermore, a determination of whether a permit should be issued pursuant to the Rivers and Harbors Act is not limited by traditional notions of navigability. Rather, "there is no doubt that the Secretary can refuse on conservation grounds to grant a permit under the Rivers and Harbors Act." Zabel v. Tabb, 430 F.2d 199, 214 [1 ELR 20023] (5th Cir. 1970). Thus, the premise of the defendants' argument about adjacency is incorrect.

Many of defendants' arguments disputing the jurisdiction of the Army Corps of Engineers are misplaced. For example, the defendants assert that the Corps is asserting jurisdiction merely to deprive the defendants of the highest and best use of their property. Even assuming that defendants contentions are accurate, it would not deprive the Corps of jurisdiction over the property involved. Rather, the argument would be useful in a determination of the reasonable probability of defendants' obtaining a permit for their construction activities.

Wetland Determination & Jurisdiction

Michael Slayton is currently the Chief of Regulatory Functions, United States Army Corps of Engineers, Miami Beach Area Office. He is a biologist with eight (8) years of professional experience, at both the State and Federal level, involving wetlands in Florida. He has made hundreds of wetland determinations. (Slayton testimony). Slayton has experience in identifying wetlands through both personal site inspections and aerial photographs. In combination with actual site condition, aerial photographs and their vegetative signatures, he is capable of identifying historical site conditions. (Id.) This court accepted Slayton as an expert in identifying wetlands.

Delbert Hicks is currently a senior aquatic biologist at the Surveillance and Analysis Division, EPA Region IV, Athens, Georgia. He is a wetland ecologist with over ten (10) years of professional experience. He participated in developing wetland criteria for EPA guidelines. He was co-author of BIG CYPRESS ENVIRONMENTAL ANALYSIS, published in 1973. (Hicks testimony). This Court accepted Hicks as an expert in wetlands identifications.

John F. Adams is currently Chief of the Regulatory Branch of the Jacksonville District of the Army Corps of Engineers.He has held that position since March 1976. From 1972 to 1976 Adams was the Chief of the Enforcement Section of the Jacksonville District Office of the Corps. As part of his duties, Adams makes determinations as to whether certain bodies and wetlands are subject to federal jurisdiction and Corps permitting requirements under Section 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 403, and under Section 404 of the FWPCA, 33 U.S.C. § 1344. (Adams testimony). This Court accepted the parties' stipulation that Adams is an expert in making wetland determinations.

George Cornwell is currently a senior consulting ecologist and President of Equal Impact, Inc. Cornwell was schooled in the areas of biology and the other physical sciences. In the summer of 1978 Cornwell rendered a quality assessment survey, commissioned by the defendants' counsel, regarding the wetland characteristics of tracts 507-04 and 404-03. This Court accepted Cornwell as an expert in wetland determinations.

The Corps determination that certain lands are "wetlands" are based upon the prevalence of vegetative species that are typically adapted to saturated soil. This determination of prevalence of vegetation refers to the amount of area covered by wetland species, not to the number of wetland species vis-a-vis other vegetative species that appear on the land.

Except for previously filled areas that are now uplands, tracts 404-24, 412-41, 412-40, 404-44, 404-33 and 404-34 are wetlands within the regulatory definition of that term subject to federal jurisdiction. (Slayton, Adams & Hicks testimony). The conclusion that the aforementioned tracts are wetlands is based upon personal observations by experts who concluded that the prevalent vegetation is that which is typically adapted for life in saturated soil conditions and on observations of the soil conditions themselves. In those areas where there is no standing water all year round, the soil condition is moist. A Department of Army permit issued pursuant to section 404 of the FWPCA would be required to discharge or fill material in the wetlands portion of these tracts.²¹

These tracts have remained wetlands throughout the years with no significant changes in vegetation. The existence of a dike constructed by Harmon has had no significant impact on the wetland vegetation in the area "impounded" by the dike. Furthermore, the existence of the dike does not negate the areas' status as a wetland contiguous and adjacent to navigable waters within the scope of federal jurisdiction.

The existence of the dike within these tracts means that the [12 ELR 20333] State of Florida does not require a dredge or fill permit for dredge and/or fill activities in the area "impounded" by the dike. FLA. STAT. §§ 253, 403 and Chapter 17-4 FLA. ADMIN. CODE. However, those portions of the tracts that are not partially enclosed by the dike are subject to state jurisdiction and permitting requirements would have become required by June 10, 1975.

Except for isolated upland areas, including roads and tree islands, tracts 507-03 and 507-04 are wetlands within the regulatory definition of that term. (Pl. Exh. 1, 2, 3 & 4; Slayton & Hicks testimony). Most of the surface of the tracts is characterized by a prevalence of vegetation typically adapted to saturated soil conditions. (Slayton & Hicks testimony). On those areas that were once cleared, the wetland species have reclaimed the substrate and those areas have reverted to wetlands for the past several years. (Hicks testimony). In those areas where there is no standing water year round, the soil remains moist throughout the year.²²

Snook Canal is a navigable waterway of the United States within the regulatory definition of that term. Any activity, including but not limited to the removal of the plug separting Snook Canal from Tarpon Canal, that would affect the course, location, condition, or capacity of Snook Canal, requires a section 10 permit from the Corps. The Corps has never issued a section 10 permit to Harmon for any alteration to Snook Canal. (Def. Exh. B).

In conclusion, there was extensive and virtually unrefuted credible expert factual and opinion testimony that the tracts of land at issue came within the regulatory definition of wetlands. This determination is based upon site inspections by experts over several years of the predominant vegetation and of soil conditions, and by expert analysis of aerial photography dating back to 1971. This Court finds as a fact that, except for the portions that have been filled to the point that they are now uplands, tracts identified as 404-24, 412-41, 412-40, 404-44, 404-33, 404-34, 507-03 and 507-04 are wetlands and therefore within the jurisdiction of the Army Corps of Engineers. Consequently, before the defendants could lawfully have discharged dredge or fill material into those areas they would have had to obtain prior authorization from the Corps in the form of a section 404 and/or section 10 permit.

Estoppel Argument

The defendants argue that even if their property was subject to the permit requirements applicable to all other property in waters of the United States and/or Florida, the plaintiff should be estopped from asserting the application of the regulations in the subsequent condemnation proceedings to determine just compensation. The estoppel argument is based upon the actions among and by various governmental agencies which were aimed at reducting the amount of compensation that the plaintiff would have to pay to the defendants for the "taking" of their properties. In other words, the defendants claim that they should be compensated for potential uses for which dredging and/or fill was a prerequisite because but for the actions by the governmental agencies, the defendants would have been able to fill the existing wetlands converting them into uplands. The wetlands would have been filled prior to the effective date of the applicable regulations and thus the defendants would have avoided section 404 permitting requirements. The plaintiff admits that with sufficient fill, wetlands can be converted into uplands and thus be outside Corps jurisdiction.

Although the law is unsettled in this area, in this Circuit "[e]stoppel cannot be asserted against the United States in actions arising out of the exercise of its sovereign powers . . . ." Hicks v. Harris, 606 F.2d 65, 68 (5th Cir. 1979). See also Utah Power & Light Co. v. United States, 243 U.S. 389, 408-09 (1917); Robinson v. Vollert, 602 F.2d 87, 94 (5th Cir. 1979).

The rationale for disfavoring the application of estoppel against the Government was explained by the Supreme Court:

The Government, which holds its interest here as elsewhere in trust for all the people, is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property.

United States v. California, 332 U.S. 19, 40 (1947).

In Robinson v. Vollert, 602 F.2d 87 (5th Cir. 1979), the Regional H.E.W. program director told the plaintiff school district that its application for aid had been approved and would be funded. The Fifth Circuit rejected the plaintiff's contention that H.E.W. was estopped to deny the application, concluding:

The government could scarcely function if it were bound by its employees' unauthorized representation. Where a party claims entitlement to benefits under federal statutes and lawfully promulgated regulations, that party must satisfy the requirements imposed by Congress. Even detrimental reliance on misinformation obtained from a seemingly authorized government agent will not excuse a failure to qualify for the benefits under the relevant statutes and regulations.

Id. at 94, (quoting Goldberg v. Weinberger, 546 F.2d 447, 488 (2d Cir. 1976), cert. denied, 431 U.S. 937 (1977)). Similarly, in Hicks, 606 F.2d at 69, the Fifth Circuit affirmed the district court's order granting the government's motion for summary judgment in a case in which the plaintiff claimed that the government should be estopped. The Court opined:

Assuming for the purposes of argument that [plaintiff] detrimentally relied on the statements and actions of governmental employees] under the relevant precedent there nevertheless can be no question of material fact as to the existence of government waiver or estoppel that would allow [plaintiff] to recover on its claims.

Simply stated, the United States is not subject to an estoppel which impedes the exercise of the powers of government. United States v. Florida, 482 F.2d 205, 209 (5th Cir. 1973).

Determinations by the Corps of Engineers regarding federal regulatory jurisdiction under 33 U.S.C. § 403 and 33 U.S.C. § 1344 are actions arising out of the exercise of the federal government's sovereign powers. The precedent in this Circuit is dispositive. The defendants' estoppel claims must be rejected. Accordingly, it is

ORDERED AND ADJUDGED that there is federal jurisdiction to regulate activities affecting Snook Canal pursuant to section 10 to the Rivers and Harbors Appropriations Act of 1899 and that such jurisdiction dates from 1899. Further, tracts 404-24, 404-33, 404-34, 404-44, 412-40, 412-41, 507-03 and 507-04 are wetlands within the regulatory definition of that term, and that there is federal jurisdiction to egulate the discharge of dredged or fill material into them, and that such jurisdiction dates from October 18, 1972. To discharge dredged or fill material lawfully into the wetland portions of the aforementioned tracts, the defendants would have had to obtain prior authorization from the Corps.

This Court further finds that estoppel does not lie against the Government and that the United States shall not be estopped from asserting regulatory jurisdiction pursuant to the FWPCA and the RHA with regard to the properties in issue. Finally, the property shall be valued with due regard for the application of the statutes and their implementating regulations, as well as the applicable state law and regulations found in FLA. STAT. §§ 253 and 403, and Chapter 17-4 of the FLA. ADMIN. CODE.

There will be another evidentiary hearing starting on Wednesday, June 3, 1981 at 9:30 a.m., in the South Courtroom, U.S. District Courthouse, 300 N.E. 1st Avenue, Miami, Florida. At that time this Court will schedule a trial date and all other necessary dates.

DONE AND ORDERED at Miami, Florida, this 15 day of May, 1981.

1. See Court file stipulation as to title, application for withdrawal of funds and Order for distribution.

2. These tracts were included in the Declaration of Taking filed in this case on October 24, 1978.

3. Both parties agree that a section 10 permit 10 remove the plug separating Snook Canal from Tarpon Canal is required. See 33 U.S.C. § 1251 et seq.

4. Sections 253 and 403, Florida Statutes Annotated and Chapter 17-4 Administrative Code.

5. The determination of "just compensation" is made by land commission established by this Court. See FED. R. CIV. P. 71(A)h.

6. The total authorized area was limited to 570,000 acres of land and water.

7. Section 2(b)(1) of the Act states:

(b) Within one year after the date of the enactment of this Act, the Secretary shall submit, in writing, to the Committee on Interior and Insular Affairs, and to the Committees on Appropriations of the United States Congress a detailed plan which shall include:

(i) the lands and areas which he deems essential to the protection and public enjoyment of this Preserve.

8. See Defendants' Exhibit U. Letter dated March 11, 1975 from Eastern Tin, Fla. Dept. of Administration.

9. The Second and Further Instruction to the Big Cypress Land Commission instructs the Commission not to take into account any increase or decrease in value to the land that is caused by the Government's taking of the land.

10. It is well established that the FWPCA and the Corps' implementing regulations are constitutional. The numerous courts which have considered that issue have consistently upheld the constitutionality of the Act and the implementing regulations. E.g., United States v. Byrd, 609 F.2d 1204 [9 ELR 20757] (7th Cir. 1979) (holding that the Act is constitutional under the commerce clause and the regulations are reasonably related to Congress' purposes); Leslie Salt Co. v. Froehlke, 578 F.2d 742 [8 ELR 20480] (6th Cir. 1978) (holding that the FWPCA and regulations are constitutional, and the regulations are reasonable and consistent with the intent of Congress); United States v. Ashland Oil and Transportation Co., 504 F.2d 1317 [4 ELR 20784] (6th Cir. 1974) (holding the Act to be within Congress' commerce power); P.F.Z. Properties, Inc. v. Train, 393 F. Supp. 1370 (D.D.C. 1975) (holding that the Act and commerce power extend to protect mangrove wetlands from water pollution); United States v. Phelps Dodge Corp., 391 F. Supp. 1181 [5 ELR 20308] (D. Ariz. 1975) (holding that the Act is not unconstitutionally vague, that the Act does not violate ex post facto principles because of alleged uncertainty as to the extent of jurisdiction, and that the commerce power extends to control water pollution in all waters, including normally dry arroyos); United States v. Holland, 373 F. Supp. 665 [4 ELR 20710] (M.D. Fla. 1974) (holding that the commerce power gives congress ample power to control dredging and filling in mangrove wetlands above the mean high tide line). See Zabel v. Tabb, 430 F.2d 199 [1 ELR 20023] (5th Cir. 1970) (holding that the commerce clause clearly gives Congress the power to regulate dredge and fill projects for environmental reasons).

11. The term "discharge of pollutants" is defined as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12).

12. The United States Environmental Protection Agency (EPA) has the overall responsibility for administering the Act. The United States Attorney General's opinion of September 5, 1979 states that under section 101(d), 33 U.S.C. § 1251(d), the Administrator of EPA has responsibility for determining the reach of the Act's jurisdiction over the waters of the United States. 43 Op. Att'y. Gen. No. 15 (1979). Nevertheless, both the EPA and the Corps of Engineers play a role in the implementation of section 404 permitting.

13. The role of wetlands in this hydrolic system was specifically noted by Congress during the debates on the Clean Water Act of 1977. See, e.g., House Debate on the 1977 Amendments to the Clean Water Act, 123 CONG. REC. H. 12962 (Dec. 15, 1977) Rep. Dingell, Senate Debate, 123 CONG. REC. S. 19657, 19661, 19674 (Dec. 15, 1977) (Senators Stafford, Randolf and Baker), reprinted in 3 LEG. HIST. 417, 484, 494, 523. On December 27, 1977, Congress enacted the Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566, substantially amending the FWPCA. The 1977 Act did not effect any changes to the provisions relevant to this proceeding.

14. The Deltona Corp. case was heard in the trial divisions of the Court of Claims and its precedential value is equivalent to that of a master's report.

15. Estuary Properties, Inc. v. Askew, 381 So. 2d 1126 (Fla. 1st DCA 1979), a case which the defendants heavily rely upon to advance their argument has recently been reversed by the Supreme Court of Florida. Graham v. Estuary Properties, Inc., (No. 58,485) [11 ELR 20992] (April 16, 1981).

16. EPA, the agency with primary responsibility for administering the Clean Water Act, has promulgated definitions of "waters of the United States" and "wetlands" which are comparable in scope, and, in the case of wetlands, identical in wording. 45 Fed. Reg. 33290 (May 19, 1980).

17. In Zabel v. Tabb, 430 F.2d 199 [1 ELR 20023] (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971), the Fifth Circuit reversed a district court decision invalidating the Corps' denial of a Section 10 permit on ecological grounds.

18. The existence of a dike or berm is not relevant to federal jurisdictional determinations. 42 Fed. Reg. 31329 (July 19, 1977).

19. The existence of a dike or berm does not negate the adjacency of a wetland to other navigable waters for Section 404 purposes. See 42 Fed. Reg. 31329 (July 19, 1977).

20. In Byrd, the Seventh Circuit affirmed the district engineers' assertion of jurisdiction on June 15, 1976 over wetlands adjacent to an intrastate lake.

21. For deposits of dredged or fill material into wetlands at elevations at or below mean high water (MHW) the Corps required section 10 or 404 permits after October 18, 1972.

These tracts are "Phase I" wetlands (wetlands adjacent to traditionally navigable waters) for which the Corps would have required a permit for discharges of dredge or fill material on July 25, 1975.

22. Tracts 507-03 and 507-04 are "Phase II" wetlands (contiguous or adjacent to a primary tributary of a traditionally navigable water) for which the Corps would have required a section 404 permit to discharge dredged or fill material after September 1, 1976. (Adams testimony).