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June 23, 1992



The opinion of the court was delivered by: THELTON HENDERSON

This matter comes before the Court on Plaintiffs', the Army Corps of Engineers' and the Port of Oakland's cross-motions for summary judgment. The motions came on for oral argument on June 15, 1992. After careful consideration of the parties written and oral arguments, and for the reasons stated below, the Court once again vacates the Army Corps of Engineers' (hereafter, "the Corps") jurisdictional disclaimer and remands the wetlands determination to the Corps with the instructions provided below. The Court therefore GRANTS IN PART AND DENIES IN PART plaintiffs' motion for summary judgment, and DENIES both the Port's and the Corps' motions for summary judgment. The Court retains jurisdiction over the action.


 This case has been before this Court for almost 5 years. It concerns the Port's dredging and filling of the "Distribution Center" (hereafter "center" or "site") adjacent to the San Leandro Bay. This Court's previously published opinion in this case ( Golden Gate Audubon Society, Inc. v. United States Army Corps of Engineers, 717 F. Supp. 1417 (N.D. Cal. 1988) (Audubon I)) details the facts which led to this litigation, and we will not repeat those facts now. Rather, we will focus the facts relevant to the instant motions, this Court's decision in Audubon I, and the events which have transpired since that decision.

 The Clean Water Act was enacted in 1972. 33 U.S.C. §§ 1251 et seq. In that Act, Congress directed the Corps, through the Secretary of the Army, to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a).

 Section 301(a) of the Act prohibits the discharge of dredged spoil or fill material into "navigable waters," except in accordance with a permit issued by the Secretary of the Army, acting through the Corps, under § 404(a) of the Act. 33 U.S.C. § 1344(a). Section 502(7) defines "navigable waters" as "waters of the United States." 33 U.S.C. § 1362(7).

 Prior to 1975, if a site was above the Mean Higher High Water (MHHW) line, it was considered "upland" or "dry land" and thus outside of the Corp's "waters of the United States" jurisdiction. In 1975, however, the Corps expanded jurisdiction to bring previously nonjurisdictional wetlands under Corps jurisdiction. In July 1975, the Corps issued regulations defining "waters of the United States" to include not only actually navigable waters but all "wetlands" that are adjacent to traditionally defined navigable waters, tributaries of these waters, and interstate waters, whether navigable or not, and their tributaries. 40 Fed. Reg. 31,320, 31,324 (July 25, 1975). The Corps also expanded its jurisdiction to "other waters" of the U.S., including streams, wetlands, playa lakes and natural ponds, if the use, degradation or destruction of those areas could effect interstate commerce. 33 C.F.R. § 323.2(a)(3) (1986), renumbered as 33 C.F.R. § 328.3(a)(3) (1988).

 Audubon I

 The Port of Oakland began dredging and filling the waters of the San Leandro Bay, concededly wetlands at the time, in 1965, prior to the passage of the Clean Water Act. Between 1972 and 1986, the Port continued to fill the site without a permit. In 1987, the Corps looked into the filling, but determined that because the site had been transformed to dry land by the filling, that the "normal circumstances" of the site was not wetlands and that it therefore lacked jurisdiction to impose permit requirements under § 404. In 1988, in Audubon I, this Court found that determination to be arbitrary and capricious.

 The Corps, and the Port, had alleged that although the site did contain wetlands, that "'those areas would not be wetlands "under normal circumstances"' since the '"normal circumstances" for these areas is that they are part of a longstanding and ongoing fill project' in which the wetlands appear between dormant stages of the project." Audubon I, 717 F. Supp. at 1421 . The "normal circumstances" issue resulted from the regulatory definition of wetlands, which defines wetlands as:

 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.

 33 C.F.R. 328.3(b) (emphasis added). As we noted in Audubon I, "in essence, the Corps found that the filling of the wetlands, and its transformation from wet to dry land, constitutes the normal circumstances of the site." Id.

 The Corps made this determination based in large part on the Corps regulatory statement "that it did not intend to 'assert jurisdiction over the areas that once were wetlands and part of an aquatic system, but which, in the past have been transformed into dry land for various purposes.'" Id., citing 42 Fed.Reg. at 37128. The Corps had also issued a regulatory letter in which it had stated that "'if a former wetland has been converted to another use' and 'that use alters its wetlands characteristics to such an extent that it is no longer a "water of the United States,"' the Corps will not assert jurisdiction over the site." Id., citing Regulatory Guidance Letter No. 86-9, August 27, 1986 at 2.

 We found that the Corps was reading this language much too broadly. As read by the Corps, the "exception" would have swallowed the rule -- it would have allowed a developer to surreptitiously fill a site to destroy the wetland vegetation, and thus destroy jurisdiction, and then to avail itself of the "conversion" exemption to the permit requirements. Thus, by breaking the law developers would remove themselves from the law's jurisdiction.

 We therefore found that the "exception" for "converted" land had a temporal limitation -- "that the language must only apply to those situations in which wetlands were converted to dry land before 1975, the date the Corps acquired jurisdiction over adjacent wetlands." Id. Because the Corps had not made a finding that the site was dry land as of 1975, we remanded the case to the Corps for proper findings, holding that

 If in fact the Port had not transformed the site into dry land by 1975, and instead was eliminating Section 404 jurisdiction by filling the site, the Corps was precluded from finding that the filled site constituted its normal circumstances. If the site had been transformed into dry land by 1975, however, the Corps could find that the dry land was its normal circumstances, since the regulatory definition does not retroactively extend the Corps' jurisdiction over areas that have been transformed into dry land.

 Id. at 1422.

 1991 Jurisdictional Determination

 The Corps has now returned with a finding that the site was converted to dry "uplands" by 1975. It based this determination on a finding that the site had been completely filled by April 1972, thus destroying the previously existing wetlands prior to the enactment of the Clean Water Act. Corps' Memorandum in Support for Motion for Summary Judgment at 8 (hereafter, "Corps' Memo"), citing Administrative Record 48 at 1871 (hereafter "A.R."). However, the Corps also found that biological wetlands were present at the site in July ...

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