with the Court within 180 days of the date of this Order.
II. DISPOSITION OF REMAINING ISSUES
Several other issues warrant discussion.
A. Other Waters
"Waters of the United States" are defined to include:
all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce. . . .
33 C.F.R. § 328.3(a)(3) (emphasis added). The Corps' comments to the final regulations state that "we generally do not consider the following waters to be 'waters of the United States';"
(e) Waterfilled depressions created in dry land incidental to construction activity . . . unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definitions of waters of the United States. . . .
51 Fed. Reg. 41,206, 41,217 (1986).
Based upon its finding that the Port had abandoned the northwestern portion of the site, the Corps found that several large bodies of water which had collected on the northwestern portion of the site were "other waters of the United States" and thus subject to Corps jurisdiction. Similar bodies found on the southern portion of the site remained nonjurisdictional "waterfilled depressions" incident to construction, because that portion of the site remained nonabandoned. The Port contends that the Corps's decision that it had abandoned the northwestern portion of the site was arbitrary because it ignored the "nature" of the site and the Port's long-term plans for site development. Plaintiffs contend that the Corps underestimated the amount of the site that the Port had abandoned.
There is ample evidence in the record to support the Corps' determination that the southwestern portion of the site was abandoned by the Port. The Corps identified only two minor fills on that portion of the site between 1972 and 1986, and found that, contrary to the Port's assertions, there was no evidence to indicate that such a long "waiting" period was necessary before construction could continue on the site. This type of factual determination -- as the Corps termed it, "judgment call" -- is precisely the type of determination that the Corps is entrusted to make. Such determinations are entitled to substantial deference, and will not be upset by this Court unless they are arbitrary and capricious, or otherwise contrary to law. See Avoyelles, 715 F.2d at 911. We find no clear error in judgment in the Corps' determination of abandonment, and both Plaintiffs' and the Port's motions for summary judgment on this point are DENIED.6
B. "Typical" vs. "Atypical" Site Methodology
The parties disagree about the methodology used by the experts in preparing their reports. Plaintiffs' experts used the methodology for "altered" or "disturbed" sites -- generally termed "atypical" sites. Plaintiffs contend that because of the Ports' filling activities until 1986, the site was disturbed and therefore methods for "disturbed sites" should have been employed to evaluate the site. The Corps and the Port contend that these experts inappropriately used that methodology -- and thus discount their reports -- because that methodology is not to be used "if the activity occurred prior to the effective date of regulation  or other jurisdiction." They contend that the filling in this case took place on a site that had been legally converted to upland before the Corps obtained jurisdiction over wetlands under the Clean Water Act.
It appears that the answer to which methodology should have been used is dependent upon when Corps jurisdiction attached to the site. Because the Corps has yet to reach a legally sound jurisdictional determination, evaluation of this issue would be premature. We therefore reach no conclusion as to which methodology was the appropriate methodology for evaluating the site, and express no opinion on that issue.
IT IS SO ORDERED.
THELTON HENDERSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT