Title: Avoyelles Sportsmen's League v. Alexander - US District Court Western District of Louisiana, Alexandria Division
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Title: Avoyelles Sportsmen's League v. Alexander - US District Court Western District of Louisiana, Alexandria Division
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Language: English
Publisher: 17 ERC 1378
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Avoyelles Sportsmen's League v. Alexander - US District Court Western District of Louisiana, Alexandria Division (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 37
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Full Text



17 ERC 1375


C such person would be inimical to the com-
mon defense and security or to the health
and safety of the public." Pub. L. No. 83-
703, 103, 68 STAT. 919, codified at 42
U.S.C. 2133(d) (1976). The 1954 Act
may have been adopted to promote devel-
opment of nuclear energy, but it did not
authorize the Commission to proceed at
the expense of health and safety. Id.
2(a), (b), (d), (e), 3(d). Again the statute
did not define or limit the term "health" in
any manner.
The 1946 and 1954 Acts established the
Commission's mandate to protect health
in plain language which encompasses psy-
chological health. No subsequent action
by Congress has limited the scope of the
Commission's responsibilities. The Com-
mission quotes from a 1957 study report
S by the staff of the Joint Committee on
Atomic Energy, Statement of Reasons at 8-
9, but the quoted language does not sup-
port the Commission's position. Even if
hazards created by potentially harmful
radiation are "[t]he special problem of
safety in the atomic field," it does not fol-
low that they are the only problem of health
and safety that the Commission must take
into account. In addition, the Commission
S rests on the legislative history of amend-
ments to the Atomic Energy Act adopted
in 1956 and 1965. Id. at 9-10. But neither
amending statute dealt with the Commis-
sion's licensing responsibilities over nu-
clear power plants. Tangential, imprecise
descriptions of the Commission's health
responsibilities are entitled to no weight.
In short, the Commission has failed to
offer any convincing evidence that the
/ Atomic Energy Act excludes mandatory
consideration of one of the important
components of health psychological
health. An examination of the original
sources shows that the Commission lifts
scattered passages out of context from
committee studies and committee reports.
Given the plain meaning of the statutory
language, I cannot agree that the Commis-
sion's resulting interpretation of the Act is
within the bounds of reasonableness.
As a fallback position the Commission
urges that, even if psychological health is
"health" under the Atomic Energy Act,
consideration of psychological health is
purely discretionary. This contention is
S without merit. The Act unequivocally bans
issuance of a license to any facility whose
operation would be inimical to the public
health and safety. The Commission has
broad procedural discretion, but it may
not avoid its substantive responsibilities


by pleading lack of expertise or by point-
ing to the difficulty of the task. If the Com-
mission is not currently equipped to assess
psychological health effects, it must add
qualified experts to its staff to fulfill its
statutory duties. No other government
agency, state or federal, has the power to
grant or deny nuclear power plant licen-
ses; therefore it is disingenuous for the
Commission to defer to "agencies with ex-
pertise in the area of mental health." State-
ment of Reasons at 17. In addition, the
Commission exaggerates the problem of
quantification. Its own Atomic Safety and
Licensing Board concluded that, at least
for purposes of NEPA, "psychological
stress is sufficiently quantifiable." 11 NRC
297, 301 (1980).Joint Appendix at 67.
T'he importance of today's interpreta-
tion of the Atomic Energy Act should not
be underestimated. Bearing the imprima-
tur of this court, it will be applied not only
in the TMI- I restart proceeding but in all
future Commission licensing proceed-
ings.: It permits the Commission to license
a nuclear plant even if studies have shown
beyond the shadow of a doubt that its
operation would seriously damage the
psychological health of large numbers of
Americans. This result is inconsistent with
the plain language and ordinary meaning
of the Atomic Energy Act. I respectfully
dissent.



AVOYELLES SPORTSMEN'S
LEAGUE v. ALEXANDER

U.S. District Court
Western District of Louisiana
Alexandria Division
THE AVOYELLES SPORTSMEN'S
LEAGUE, INC., et al. v. CLIFFORD L.
ALEXANDER, el al., Civil Action No. 78-
1428, March 12, 1981

WATER
Federal, state, and local regulation -
Constitutionality (28.03)


s In the narrow circumstances of the present
case, which addressed only the scope of the
Commission's in\ estigation, the court s holding
under NEPA has given PANE the relief it seeks.
Indeed, for this reason I am not convinced that
it was necessary for the court to reach the Atom-
ic Energy Act question.


Avoyelles Sportsmen's Ueague v. Alexander








17 ERC 1376
Federal, state, and local regulation -
Statutory construction In general
(28.051)
Federal, state, and local regulation -
Navigable waters (28.35)
Federal, state, and local regulation -
Fishing and fisheries (28.40)
[1] Congress properly exercised its
broad powers under Commerce Clause of
U.S. Constitution by defining "navigable
waters" under Federal Water Pollution
Control Act to include full hydrologic
cycle, to protect propagation offish, shell-
fish, and wildlife, and to provide for recre-
ation in and on such waters.
LAND
Federal, state, and local regulation -
Statutory construction In general
(8.051)
Federal, state, and local regulation -
Eminent domain "Taking"
(8.133)
Federal, state, and local regulation -
Wetlands (8.24)
[2] Designation of "wetlands" under
Section 404 of Federal Water Pollution
Control Act (33 USC 1344) is not taking
for which compensation is due because
Congress effected legitimate economic
and social policy with Act, thus "highest
and best use" is not at issue.
Federal, state, and local regulation -
Statutory construction In general
(8.051)
Federal, state, and local regulation -
Wetlands (8.24)
[3] "Wetlands" under Section 404 of
Federal Water Pollution Control Act (33
USC 1344) includes land that supports
vegetation tolerant to saturated soil condi-
tions, whether or not inundation occurs
regularly.
STATUTES
Federal Federal Water Pollution
Control Act In general (95.0211)
Construed.


Private plaintiffs seek declaratory judg-
ment and permanent injunction against
private defendants seeking to clear lands
without Section 404 permits and against
Corps of Engineers until jurisdiction over
lands is determined; granted. Preliminary
injunction granted in part at 13 ERC 1353.


Avoyelles Sportsmen s League v. Alexander

Donald R. Wilson, Jera, La., for plain-
tiffs.
James B. Tripp, New York, N.Y., for En-
vironmental Defense Fund.
Michael Osborne, New Orleans, La., for
Environmental Defense Fund and Na-
tional Wildlife Federation.
F. Walter Conrad, Houston, Tex., for in-
lervenors Ophelia Lake and Bayou
Lafourche and for defendants Lambright
and Prevot.
William D. Brown, Monroe, La.; David
B. Beers and Nancy C. Shea, Washington,
D.C.; and Richard S. Wasserstrom, Wash-
ington, D.C., for amici curiae American
Paper Institute, the National Forest Pro-
ducts Ass'n, and the Louisiana Forestry
Ass'n.
Frances O. Allen, Shreveport, La., for all
government defendants.
Charles K. Reasonover, New Orleans,
La., for defendant Elder Realty Co.
Louis D. Curet, Baton Rouge, La., for
amicus curiae Louisiana Farm Bureau Fed-
eration, Inc.
Dan E. Melichar, Alexandria, La., for de-
fendant H. P. Lambright.
Edwin R. Woodman, Baton Rouge, La.,
for intervenor Department of Natural Re-
sources.
Joseph E. LeBlancJr., New Orleans, La.,
for intervenors Bartmess, Smith, Rag-
sdale, Rogers & Sons, Inc. and Tilden
Plantation.
Fred R. Disheroon and Nancy L. Long,
Department of Justice, and Catherine A.
Winer, EPA, Washington, D.C., for all fed-
eral defendants.
Before Nauman S. Scott, Chief District
Judge.

Full Text of Opinion

Plaintiffs' brought this declaratory arid
injunctive action alleging that land-clear-
ing operations being carried on by the pi-
vate defendants2 have and will: alter anrd


I The Avoyelles Sportsmen's League, Inc.,
Point Basse Hunting Club, Inc., Avovelles Bays
Runners, Inc., IraJ. Marcotte, Avovelles Natu-
ral Guard, Inc., The Environmental Defenme
Fund, Inc., and The National Wildlife Federa-
tion.
Albert Prevot, H. P. Lambright and Elder
Realty Co., Inc. Additional parties, The State of
Louisiana, Louisiana Land Owners Association,


0


0







17 ERC 1377


modify the course, condition and capacity
* of the navigable waters of the United
States in violation of 10 of the Rivers and
Harbors Act of 1899,33 U.S.C.A. 403; re-
sult in the discharge of dredged and fill
material into the waters of the United
States in violation of 404 of the Clean
Water Act (hereinafter CWA), 33 U.S.C.A.
1344; result in the discharge of pollutants
S into the waters of the United States in
violation of 402 of the CWA, 33 U.S.C.A.
1342; and violate Louisiana State law
under Louisiana Civil Code arts. 667 and
857. The plaintiffs requested that we com-
pel the federal defendants' to regulate the
and-clearing activities and enjoin the
land-clearing activities until the extent of
the federal defendants' jurisdiction has
O been determined and permits applied for
under 33 U.S.C.A. 403, 1342 and 1344.
The land subject to this proceeding and
being cleared is an approximately 20,000
acre tract (hereinafter referred to as the
Lake Long Tract) situated in Avoyelles
Parish, Louisiana between the Grassy Lake
State Management Area and the Spring
Bayou State Management Area. It lies
within the Bayou Natchitoches basin
which, along with the Ouachita, Black and
S Tensas river basins, makes up the Red
River backwater area. The Bayou
Natchitoches basin itself is an area com-
prised of approximately 140,000 acres.
Much of this basin has been cleared of for-
est but before the private defendants'
land-clearing operations commenced, ap-
proximately 80,000 acres of this area still
was forested. Consequently, prior to the
commencement of the private defendants'
land-clearing operations, the Lake Long
S tract represented one-quarter of the


Inc., Ophelia Lake, Inc., Bayou Lafourche, Inc.,
George Bartmess, RogerJ. Smith,James E. Rag-
sdale, Dale Rogers & Sons, Inc., and Tilden
Plantation, Inc., have intervened since the ren-
dition of our opinion covering the first phase of
this proceeding and, for the purposes of this
final opinion are included in the designation,
private defendants, but are not land owners and
are not therefore covered by the injunctive re-
lief granted in the opinion covering the first
phase of this proceeding.
Clifford L. Alexander. Secretary of the
Army,John W. Morris, Chief of Engineers, U.S.
Army Corps of Engineers, Colonel Robert L.
Moellering, Vicksburg District Engineer, U.S.
Army Corps of Engineers. Douglas Costle. Ad-
ministrator of the U.S. Environmental Protec-
tion Agency, and Adlene Harrison. Regional
Administrator of the U.S. Environmental Pro-
tection Agency.


remaining forested acreage in the Bayou
Natchitoches basin.
The clearing of the Lake Long tract
began in June of 1978. Sometime prior to
that loggers had harvested much of the
commercially valuable hardwoods with
chainsaws. Thereafter, the private defend-
ants took various steps to remove all the
remaining trees and vegetation from the
tract so that it could be put to agricultural
use and specifically into soybean produc-
tion.
On November 7, 1978 we granted a tem-
porarv restraining order whereby the pri-
vate defendants were prohibited from en-
gaging in any further land-clearing activi-
ty. More specifically, they were prohibited
from conducting ditch excavation, altering
the surface of the land, logging, except by
chainsaw, destroying vegetation, plowing,
discing, or discharging any biologic mate-
rial or pollutants onto the land. They were
permitted to clean up debris already on the
ground.
OnJanuary 17, 1979 it was ordered that
the federal defendants prepare a final wet-
land determination within sixty days. The
private defendants were permitted to en-
gage in normal cultivation, plowing and
seeding without obtaining a permit on the
land already cleared, approximately
10,000 acres. The private defendants were
ordered to and agreed under protest, to
apply for permits under 404 for any
ditching, levee construction and drainage
work construction on the land already
cleared. As to the uncleared land, the
prohibitions of the temporary restraining
order remained unchanged.
On March 26, 1979 the federal defend-
ants filed their final wetland determination
which designated certain portions of the
tract, including substantial portions of the
cleared lands, to be wetlands. Thereafter
the private defendants filed objections to
this determination.
The wetland determination also con-
tained a statement concerning what activi-
ties of the private defendants were subject
to the permit requirements of 404, 33
U.S.C. 1344. This was the subject of our
judgment of June 9, 1979, The Avoielles
Sportsmen's League, et al v. Alexander, et als.
473 F.Supp. 525 [13 ERC 13531 (W.D. La.
1979). We must now consider the ultimate
issue which was bifurcated and therefore
not covered in our opinion ofJune 9. 1979:
Was the Government's final wetland de-
termination filed by the Federal defend-


Aivoyelles Sportsnier's I-eague v. Alexatider







17 ERC 1378

ants on March 26, 1979, correct so that the
area designated therein as wetlands
(shown in green on the survey attached
thereto) is subject to the strictures of the
CWA? Stated another way: Is the Lake
Long tract included in "waters of the Unit-
ed States" and more particularly, does it
constitute a "wetlands" within the mean-
ing of the regulations promulgated by the
Corps under the 404 program?

FINDINGS OF FACT

1) The Lake Long Tract (approximate-
ly 20,000 acres) is located in the Bayou
Natchitoches basin consisting of approxi-
mately 140,000 acres and along with the
Ouachita, Black and Tensas River basins,
makes up the Red River backwater area.
2) The Bayou Natchitoches basin
serves as a major overflow or backwater
area for Red River. When the Red River
rises, its waters flow westward through
bayous, principally Bayou Natchitoches
and across the Lake Long tract. This back
flooding occurs in the Spring of each year
at varying times during the months of
March, April, May and occasionally the
first part ofJune. Three major backwater
floods have occurred during the 1970s.
3) Rainfall in the Bayou Natchitoches
basin averages almost 60 inches a year, the
heaviest rainfall occurring during the
months of December, January, February,
March, April and May. Since the rainfall
drains easterly across the Lake Long tract
and into Bayou Natchitoches and the Red
River, it adds to the waters on the Lake
Long tract especially during times of
backwater flooding which occurs during
these same months.
4) The topography of the Lake Long
tract is very uneven with swells and ridges
which impede drainage and bring about
the formation of standing water sloughs
and permanent water impoundments such
as Lake Long, Lake Ophelia, West Cut
Lake, Mouillier a Yor, Mouillier Swamp,
Lake Claire, Lac a Paul, Lac Byrondas
Chats, Lac Volee, Lac Calebasse, Nichols
Lake, Lac Barbue and Pointe Basse (Soils
map Gov. G). Sediment has formed
ridges along the streams in the area and
the ridges on each side of Lake Long di-
vide the northern portion of that tract
from the southern in terms ofwater move-
ment. Drainage of the northern area east-
ward through Three Mile Bayou is inter-
mittent and much poorer than the drain-
age on the south. The drainage on the


Avoyelles Sportsmen's League v. Alexander

south through BayouJeansonne to Bayou A
Natchitoches is somewhat better though W
impeded by the decreased channel size of
Bayou Jeansonne. The type of soil on the
tract is an additional drainage difficulty.
5) The Lake Long tract ranges in eleva-
tion from below 40 feet mean sea level
(msl) to over 55 feet msl at the ridges. The
one year frequency flood4 is estimated to
be 45.8 feet (46 feet msl); the one to one
and a half year fi equency flood, 47 feet
msl; the one and a half year frequency
flood, 48 feet msl, and the two year fre-
quency flood, 49.6 feet msl.
6) The minimal flood duration5for ele-
vations at or below 40 feet msl is 70%; this
would inundate approximately 1323 acres
on the Lake Long tract; for elevation 45
feet msl, 13% (approximately 10,188
acres); for elevation 50 feet msl, 4% (ap-
proximately 18,556 acres); and for eleva-
tion 55 feet msl, 1% (approximately


The one-year frequency flood is that flood
which, statistically, over a long period of time,
can be expected to occur every year. It is calcu-
lated by reference to historical flood data, but it k
is not exactly an averaging of the floods that f
occur every year. It covers that area of land W
which can be expected to be inundated by the
one-year flood.
5 What the flood duration means is that at a
given elevation, water will inundate the area for
a particular percentage of the time. Thus on the
Lake Long tract, the elevation 40 feet msl will be
equalled or exceeded 70% of the me by flood
waters; this is based on historical data. The
flood duration is not an annual average, but it is
not unreasonable to say that there would be
flooding at elevation 40 feet msl for 70% of the
time each year. In other words, over the histori-
cal period, from which the data is compiled, for
707 of the time the elevation 40 feet msl was
once under water. As we understand it, witness
Phil Combs, Chief of the Hydrology Section of
the Vicksburg District Corps of Engineers, who
made these calculations, did not take into ac-
count actual rainfall onto the Lake Long tract.
He did what is known in the hydrology profes-
sion s a routing. Rainfall from areas west of the
Lake Long tract were scientifically converted
into stream flow across the tract, apparently be-
cause drainage from those areas is onto the
tract. The routing was then correlated with river
stages to arrive at estimates of flooding frequen-
cy and duration. He took into account rainfall
runoffand backwater flooding but his consider-
ation of topograph in the area was minimal.
Dr. Van Beek's water levels were somewhat
higher than Combs' because he took into ac-
count actual rainfall on the Lake Long tract, the
drainage characteristics, the impoundments of
water, and soil saturation characteristics which
slow the drainage.


I








Avoyelles Sportsmen's League v. Alexander

20,949 acres). These calculations do not
include the duration of soil saturation
which continues after surface flooding has
subsided.
7) All the soils in the Lake Long tract
are wetland soils with the possible excep-
tion of soils along the Red River and the
Lake Long ridge, i.e. Roxanna, very fine
sandy loam, gently undulating (61) and
Norwood silty clay loam, occasionally
flooded (52). The data on these soils was
inadequate. There were substantial dis-
putes regarding the wetlands character of
the following soils:
(19) Dundee silty clay loam, occa-
sionally flooded;
(53) Sharkey clay, overwash, occa-
sionally flooded;
(54) Sharkey clay, overwash, gently un-
dulating, occasionally flooded;
(55) Tensas silty clay, overwash, occa-
sionally flooded;
(57) Tensas-Sharkey complex, over-
wash, undulating, occasionally
flooded.
We find these to be wetland soils because:'
(a) Moisture regime aquic regime as-
suring that dissolved oxygen is virtually
absent;
(b) Drainage classification described
alternatively as "somewhat poorly
drained"; "poorly drained due to high
water table to slow permeable layer within
profile to seepage or a combination of
these conditions" and "somewhat poorly
drained" due to much the same condi-
tions.
(c) Capability classification very se-
vere limitations because of excess water
that restrict the choice of plants and re-
quire careful management or both; poor
soil drainage, wetness, high water table
and overflow.
(d) Mottling Colorations in the soils
which reflect alternating periods of no free
oxygen in the soil (reduced conditions)
and periods of free oxygen oxidatedd con-
ditions). No mottles are present unless
there has been some saturation of the soil.
This is possibly the best indication of the
saturated character of the soils on the Lake
Long tract.
(e) Lay description Soil Conserva-
tion Service data describes these soils in
terms of their farming potential in a manu-
al specifically developed for Avoyelles Par-
ish. The descriptions are an obvious indi-
cation of the wetland character of these
soils. (SCS Manual).


17 ERC 1379


When these soils become flooded thev
remain saturated over a more extended
period of time than other types of soils. Be-
cause of their extended anaerobic (lack of
free oxygen available for roots) condition
when flooded only certain species of vege-
tation can adapt and survive. Certain vege-
tation can tolerate and survive very ex-
tended periods of saturation, others can
survive intermittent and less extended pe-
riods, upland vegetation cannot adapt.
and therefore cannot tolerate and survive
even the intermittent and less extended
periods.
8) A prevalence of' the following plant
species appear on the Lake Long tract.


SPECIES
American Elm
Bald Cypress*
Bitter Pecan
Black Willow*
Box Elder
Button Bush*
Deciduous Holly
Drummond's Red
Maple
Eastern
Cottonwood
Green Ash
Hathorn
Honey Locust
Nutta 's Oak
Overcup Oak
Persimmon
Sugarberry
Swamp Privet*
Swamp Tupelo
Sweet Gum
Sycamore
Water Elm*
Water Locust
Water Oak
Water Tupelo*
Willow Oak


WHITLOW
&
HARRIS
ST
VT
VT
VT
ST
VT
VT
T
T
VT
ST
ST
VT
VT
T
T
VT
ST
T
ST
VT
VT
ST
VT
ST


TESKEY
&
HINCKLEY
T
VT
ST
VT
T
VT
VT

T


ST
v-I-
VTI
ST
T
T
T
T
VT
VT
T
T
T
T
T
T


Studies of the flood tolerance of various
plant species have been made by Whitlow
& Harris7 and by Teskey &


Throughout this proceeding all persons
concerned have found it more convenient to
refer to a community of certain species or vege-
tation rather than "a prevalence of vegetation"
which is the term used in both the 1975 and
1977 definition of wetlands.
7 Whitlow & Harris (Whitlow & Harris, Flood
Tolerance in Plants: A State-of-the-Art-Review.
Final Report, U.S. Army Corps of Engineers
Waterways Experiment Station. Technical Re-
port E-79-2. August 1979) classify plants as (1)
very tolerant (VT) able to survive deep, pro-
longed flooding for more than one year; (2) tol-







I7ERC 1380 Avoyelles Sportsmen's League v. Alexander


Hinckley.8Their tolerance classification
for each species is shown in the table
above. Private defendants' principal wit-
ness, Dr. Donald Rhodes, retained as a bo-
tanical consultant by the Vicksburg Dis-
trict of the Corps of Engineers (also
Thomas, Hook & McKnight) are of the
opinion that Bald Cypress, Black Willow,
Button Bush, Swamp Privet, Water Elm
and Water Tupelo (indicated by asterisks)
are the only wetland plant species.
9) Bald Cypress, Black Willow, Button
Bush, Swamp Privet, Water Elm and Water
Tupelo exist in community only in deep
swamp or cypress swamp areas; areas
which are inundated and water dominated
most of each year. The other species men-'
tioned in Paragraph 8 above cannot sur-
vive such extended periods of inundation
and/or saturation but can survive substan-
tially shorter periods of intermittent inun-
dation and saturation. All species have sur-
vived in community through the periods of
inundation and saturation experienced on
the Lake Long tract.
10) The Lake Long tract can be cleared,
disced, leveled, ditched and improved for
soybean cultivation. A soybean crop can
be made even though it is planted as late as
June 15th. Indeed, much of the Lake Long
tract has already been cleared and is in
soybean cultivation. In fact, any lowland
and even lakes can be converted to agricul-
ture with the proper engineering improve-


erant (T) able to survive deep flooding for
one growing season, with significant mortality
occurring if flooding is repeated the following
year; (3) somewhat tolerant (ST) able to sur-
vive flooding or saturated soils for 30 consecu-
tive days during the growing season: and (4) in-
tolerant unable to survive more than a few
days of flooding during the growing season
without significant mortality.
8 Teskey & Hinckley (Teskey & Hinckley, Im-
pact of Water Level Changes on Woody Ripari-
an and Wetland Communities, U.S. Fish & Wil-
dlife Service, Vols. I and II, December 1977)
classify plants as (1) very tolerant (VT) -able to
withstand flooding for periods of 2 or more
growing seasons; exhibit good adventitious or
secondary root growth during this period; (2)
tolerant (T) able to withstand flooding for
most of one growing season; exhibits some new
root development during this period; (3) inter-
mediately tolerant (IT) able to survive flood-
ing for periods between one to three months
during the growing season; exhibits few new
roots or dormant roots during this period; and
(4) intolerant unable to withstand flooding
for short periods (one month or less) during the
growing season; the root system will die during
this period.


ments. This is the problem being met by
the CWA. We do not consider it an appro-
priate criteria to determine what is or is not
a wetlands.

CONCLUSIONS OF LAW

A. CONSTITUTIONAL ISSUE
Congress has declared the goals and
policy of the CWA 101 (a), 33 U.S.C.
1251(a), to be as follows:
"(a) The objective of this chapter is to
restore and maintain the chemical, phys-
ical, and biological integrity of the Na-
tion's waters. In order to achieve this ob-
jective it is hereby declared that, consist-
ent with the provisions of this chapter-
(1) it is the national goal that the dis-
charge of pollutants into the naviga-
ble waters be eliminated by 1985;
(2) it is the national goal that
wherever attainable, an interim goal
ofwater quality which provides for the
protection and propagation of fish,
shellfish, and wildlife and provides for
recreation in and on the water be
achieved, byJuly 1, 1983;

*"

These lofty ecological goals could not
be achieved through the limited jurisdic-
tion (ordinary high water mark) tradi-
tionally exercised by the Corps of En-
gineers (Corps). Such jurisdiction is inade-
quate to the purpose. The Corps' explana-
tion following the promulgation of the
1977 revisions stated:
"WETLANDS. Prior to enactment of
the FWPCA. In freshwater lakes, riv-
ers and streams that are navigable wa-
ters of the United States the andward
limit of jurisdiction has been tradi-
tionally established at the ordinary high
water mark.
"The regulation of activities that cause
water pollution cannot rely on these ar-
tificial lines, however, but must focus on
all waters that together form the entire
aquatic system. Water moves in hydro-
logic cycles, and the pollution of this
part of the aquatic system, regardless of
whether it is above or below an ordinary
high water mark, or mean high tide line,
will affect the water quality of the other
waters within that aquatic system.
"For this reason, the landward limit of
Federal jurisdiction under Section 404


4


0


17 ERC 1380


Avoyelle Sportsmen's League v. Alexander








Avoyelles Sportsmen's League v. Alexander 17 ERG 1381


must include any adjacent wetlands that
form the border of or are in reasonable
proximity to other waters of the United
States, as these wetlands are part of this
aquatic system." Fed.Reg., Vol. 42, No.
138, p. 37128 (1977). Congress was
acutely aware of this and in drafting Sec-
tion 502(7) of the Federal Water Pollu-
tion Control Act (now CWA), 33 U.S.C.
1362(7), deliberately moved away
from the earlier restrictive definitions of
navigable waters. "The conferees fully
intend that the term 'navigable waters'
be given the broadest possible constitu-
tional interpretation unencumbered by
agency determinations which have been
made or may be made for administrative
purposes." S. Rep. No. 1236, 92d
Cong., 2d Sess. 144, reprinted in (1972)
U.S. Code Cong. & Ad. News 3822.9
Although 101(a)(l) refers to the dis-
charge of pollutants in the "navigable wa-
ters", it is clear that Congress was not re-
ferring to "navigable waters" in the usual
physical sense. In fact the statutory defini-
,tion mentions no physical characteristics
such as width, depth, volume or flow. It
mentions none of the characteristics nor-
rmally associated with navigability such as
"ebb and flow of tide" or "high water
mark" or "low water mark". The CWA de-
fines "navigable waters" in terms consist-
ent with Congress' stated objective to re-
store and maintain the chemical, physical
and biological integrity of the Nation's wa-
ters. The report of the House Committee
on Public Works which accompanied the
House bill, defined"integrity"to mean a
condition in which the natural structure
and function of ecosystems is maintained.
H. Rep. No. 92-911, 92nd Cong. 2d Sess.
76-77 (1972), reprinted in 1 Legislative
History 753, 763-64. In enacting the 1972
Amendments to the Federal Water Pollu-
tion Control Act (now CWA), Congress
"intended to extend the Act's jurisdiction
to the Constitutional limit." Leslie Salt Co.
v. Froehlke, 578 F.2d 742, 755 [11 ERC
1729] (9th Cir., 1975); State of Minnesota v.
Hoffman, 543 F.2d 1198, 1200 n. 1 [9 ERC
1353] (8th Cir., 1976), cert. denied 430 U.S.
977 [9 ERC 20731 (1976); People of the State


9 Other parts of this 1972 legislative history
(statements by Sen. Muskie and Rep. Dingell)
indicate a congressional intent to limit jurisdic-
tion to waters which are today "navigable in
fact." However, litigation and legislative history
since 1972 have rendered this portion of the
statement obsolete.


of California v. Environmental Protection .gen-
cy, 511 F.2d 963, 964-965 n. 1 [7 ERC
1667] (9th Cir., 1975), rev'd on othergromuds,
426 U.S. 200 [8 ERC 2089] (1976); United
States v. Ashland Oil and Transportation Co..
504 F.2d 1317, 1324 [7 ERC 11141 (6th
Cir., 1974); United States v. Holland, 373
F.2d 665, 671 [6 ERC 1388] (M.D. Fla.,
1974); Natural Resources Defense Council v.
Callaway, 392 F.Supp. 685, 686 [7 ERC
1784] (D.D.C. 1975).
[1] Congress effectively implemented
its intent (1) to extend the Act s jurisdic-
tion to the Constitutional limit, (2) to ex-
tend the broadest protection possible to
the nation's full hydrologic cycle, (3) to
provide for the protection and propaga-
tion of fish, shellfish, and wildlife and to
provide for recreation in and on the water
when it defined the term "navigable wa-
ters" in 502(c)(7), 33 U.S.C. 1362(c)(7)
as follows:
"(7) The term'navigable waters' means
the waters of the United States, includ-
ing the territorial seas."
It has been recognized that pollution, in-
cluding 404 pollution, can be regulated
only at the source of that pollution, United
States v. Holland, supra;i1 Puerto Rico v. Alex-
ander, 438 F.Supp. 90 [10 ERC 1575] (D.C.
1977). The definition, as we shall see, is
broad enough to allow such control.
Congress has broad powers under the
Commerce Clause, Art. 1, 8, Constitu-
tion of the United States. In United States v.
Darby, 312 U.S. 100, 85 L.Ed. 609,61 S.Ct.
451 (1941), ChiefJustice Stone stated:
"The power of Congress over interstate
commerce is not confined to the regula-
tion of commerce among the states. It


f' Although C'.S. v. Holland, suli a. is con-
cerned with coastal terrain, the following liln-
guage is singularly applicable to wetlands in
general:
"(9). The Court is of the opinion that the
mean high water line is no limit to federal
authority under the FWPCA. While the line
remains a valid demarcation for other pur-
poses, it has no rationale connection to the
aquatic ecosystems which the FWPCA is in-
tended to protect. Congress has wisely deter-
mined that federal authority over water pol-
lution properly rests on the Commerce
Clause and not on past interpretations of an
act designed to protect navigation. And the
Commerce Clause gives Congress ample
authority to reach activities above the mean
high water line that pollute the waters of the
United States." At p. 676.


I


Avoyelles Sportsinen s Lealgue v. Alexpander


17 ERC 1381








I7ERC 1382 Avoyelles Sportsmen's League v. Alexander


extends to those activities intrastate
which so affect interstate commerce or
the exercise of the power of Congress
over it as to make regulation of them ap-
propriate means to the attainment of a
legitimate end, the exercise of the grant-
ed power of Congress to regulate inter-
state commerce. See M'Culloch v. Mary-
land, 4 Wheat 316, 421, 4 L.Ed. 579,
605."
Congress has utilized the Commerce
Clause to extend its power to essentially
local activities involving fraudulent securi-
ty trans-actions, Securities & Exchange
Comm'n v. Ralston Purina Co., 346 U.S. 119,
97 L.Ed. 1494, 73 S.Ct. 981 (1953); to de-
ceptive practices in the sale of products,
Federal Trade Comm'n v. Mandel Bros., Inc.,
359 U.S. 385, 3 L.Ed.2d 893, 79 S.Ct. 818
(1959); to resale price maintenance, Hud-
son Distributors, Inc. v. Eli Lilly & Co., 377
U.S. 386, 12 L.Ed.2d 394, 84 S.Ct. 1273
(1964); to professional football, Radovich
v. National Football League, 352 U.S. 445, 1
L.Ed.2d 456, 77 S.Ct. 390 (1957); to public
accommodation practices, Heart of Atlanta
Motel v. United States, 379 U.S. 241, 13
L.Ed.2d 258, 85 S.Ct. 348 (1964); Katzen-
bach v. McClung. 379 U.S. 294, 13 L.Ed.2d
290, 85 S.Ct. 377 (1964); and to loanshark
lending practices, Perez v. United States, 402
U.S. 146, 28 L.Ed.2d 686, 91 S.Ct. 1357
(1971). Each of these cases, and many oth-
ers like them, are examples of local intra-
state activity which affect interstate com-
merce and are subject to the powers of
Congress.
It has been established also thatjurisdic-
tion under the Act had to be broad in order
to accomplish its stated purpose. But it
does not follow from this that the Act is
vague. There is a strong presumption in
favor of the validity of an act of Congress.
United States v. National Dairy Products, 372
U.S. 29, 9 L.Ed.2d 561, 83 S.Ct. 594
(1963). We are less inclined to strike down
a congressional enactment on grounds of
vagueness, where the statute involves a
regulatory measure rather than constitu-
tionally protected rights. U.S. v. Harriss,
347 U.S. 612. 98 L.Ed. 989, 74 S.Ct. 808
(1954). Where, as here, the breadth of the
Act is necessary to accomplish its purpose,
and is reasonably related to that purpose,
it is not unconstitutionally vague, U.S. v.
Phelps Dodge Corp., 391 F.Supp. 1181 [7
ERC 1823] (D.C. Ariz. 1975),ll U.S. v.


1I "For the purpose of this Act to be effec-


Powell, 423 U.S. 87, 46 L.Ed.2d 228, 96
S.Ct. 316 (1975); M. Krause & Bros., Inc. v.
United States, 327 U.S. 614, 90 L.Ed. 894,
66 S.Ct. 705 (1946).

B. HIGHEST AND BEST USE

[2] The fact that the Lake Long tract
could be more valuable if converted to
soybean cultivation or that such cultiva- W
tion may be its "highest and best use" is
not pertinent here. Designation as a "wet-
lands" under the provisions of the CWA
does not amount to a taking for which
compensation may be due. The CWA was
designed by Congress to effect a legiti-
mate economic and social policy. It has not
been shown that the consideredjudgment
of Congress in passing that Act is not rea-
sonable, legitimate and in the public inter-
est. Andrus v. Allard, 444 U.S. 51. 62
L.Ed.2d 210, 100 S.Ct. 318 [113 ERC 2057]
(1979); Penn Central Transportation Co. v.
New York City, 438 U.S. 104, 57 L.Ed.2d
631,98 S.Ct. 2646 [11 ERC 1801] (1978);
and .Maher v. City of New Orleans, 516 F.2d
1051 (5th Cir., 1975), cert. denied 426 U.S.
905 (1976). Therefore, the enforcement of
the 404 regulation is not a "taking" for
which compensation is due.


C. HISTORY AND METHODOLOGY

In order to demonstrate the methodolo-
gy used by us in applying the "wetlands"
definition to the Lake Long tract, we find it
necessary to give a brief history of the
CWA, part of which history may be repeti-
tive. As stated previously, Congress in-
tended to extend the jurisdiction of the
Federal Water Pollution Control Act (now
CWA) to the constitutional limit. Yet the
regulations of the Department of the Army
did not reflect such broadened jurisdic-
tion:


lively carried into realistic achievement, the
scope of its control must extend to any
waterways, including normally dry arroyos,
where any water which might flow therein could
reasonably end up in any body of water to which
or in which there is some public interest ..
Obviously, Congress did not specifically define
the term 'waters of the United States'. The task
is whether the term is sufficiently clear or
definite and certain as to give fair warning of the
conduct that is criminal." U.S. v. Phelps Dodge
Corp., 391 F.Supp. 1181 [7 ERC 1823] (D.C.
Ariz. 1975) at 1187.


Av~oyelles Sportsmen's League v. AlexanderT


I7 ERC 1382








Av'vlls botsie aue .AeadrIEC18


"As part of the revisions to its April 3,
1974 permit regulation, the Department
of the Army published regulations to
implement the Section 404 permit pro-
gram. These regulations limited the
Section 404 permit program to the same
waters that were being regulated under
the River and Harbor Act of 1899: wa-
ters that are subject to the ebb and flow
of the tide shoreward to their mean high
water mark (mean higher water mark on
the West Coast) and/or waters that are
presently used, were used in the past, or
are susceptible to use to transport inter-
state or foreign commerce." Fed.Reg.,
Vol. 42, No. 138, p. 37123 (1977).
Meanwhile, courts interpreted the Act to
afford jurisdiction sufficient to accomplish
the goals and policy of the Act; i.e., juris-
diction over "waters of the United States"
including wetlands. The Corps consistent-
ly interpreted the term "waters of the Unit-
ed States" to cover only those waters
which are subject to the ebb and flow of the
tide or were, are could be made navigable
in fact. The EPA, on the other hand, in-
sisted that the definition of those waters
was specifically intended to replace the
traditional definition with one which
would grant the broad jurisdiction neces-
sary to achieve effective Section 404 pollu-
tion control. The courts adopted the latter
point of view and finally on March 27,
1975 the Court in Natural Resources Defense
Council v. Callaway, supra, ordered that the
Corps regulations be revised and broad-
ened.12 Thereafter, the Corps, with the

12 Natural Resources Defense Council, Inc. v. Cal-
laway, supra:
"(1) 1. Congress by defining the term
'navigable waters' in Section 502(7) of the
Federal Water Pollution Control Act Amend-
ments of 1972, 86 Stat. 816, 33 U.S.C. 1251
et seq. (the 'Water Act') to mean 'the waters of
the United States, including the territorial
seas,' asserted federal jurisdiction over the
nation's waters to the maximum extent per-
missible under the Commerce Clause of the
Constitution. Accordingly, as used in the
Water Act, the term is not limited to the tradi-
tional tests of navigability.
"(2) 2. Defendants Howard H. Callaway,
Secretary of the Army, and Lt. Gen. William
C. Gribble, Chief, Army Corps of Engineers,
are without authority to amend or change the
statutory definition of navigable waters and
they are hereby declared to have acted unlaw-
fully and in derogation of their responsibili-
ties under Section 404 of the Water Act by the
adoption of the definition of navigability de-
scribed at 33 C.F.R. 209-210(d)(1), 39
Fed.Reg. 12119 (April 3, 1974), and 33
C.F.R. 209.260."


help of other Federal agencies, issued its
interim final regulations on July 25, 1975,
broadening the definition of "waters of the
United States" to include certain types of
land above the mean high water mark in-
cluding "fresh water wetlands." Neverthe-
less, because of the pressure of many farm,
forestry and land development groups,
there were continued efforts to amend the
Federal Water Pollution Control Act to re-
define the term "navigable waters" in a
more traditional and restrictive sense.
These efforts were reflected by the pro-
posed Breaux amendment; Wright
amendment; an Administration amend-
ment; the Baker amendment and the
Baker-Randolph amendment, all of which
were considered by Congress in 1976.
None passed. The Corps had received
many comments on its final interim regu-
lations and on July 19, 1977 issued its final
regulations redefining "waters of the Unit-
ed States" and "wetlands". On December
27, 1977 Congress passed the Clean Water
Act which amended the Federal Water Pol-
lution Control Act in many respects and
significantly did not affect or modify the
provisions of the final regulations.
It is quite obvious from this history that
the terms "waters of the United States"
and "wetlands" are not terms of pure sci-
ence. They are not meant to be. "Wet-
lands" is ajurisdictional term, the product
of the legislative process, of political pres-
sure groups. The plaintiffs in this proceed-
ing are representative of those who have
fought historically to expand Section 404
jurisdiction to promote pollution control.
Private defendants are representative of
those who have fought historically for the
right to clear and develop forest lands.
Thus, the "wetlands" definition does not
answer a scientific need, it satisfies a prac-
tical, a social, a political need, the need to
define the scope of Section 404 jurisdic-
tion. It should be interpreted with this pur-
pose in mind. The definition may be scien-
tifically incorrect, but that should not af-
fect its validity as a jurisdictional defini-
tion. A "wetlands" is what Congress (as re-
flected by the regulations) says it is. We
have the definition. We have been favored
by the testimony and evidence of immi-
nent agronomists, soil scientists, hydrolo-
gists and biologists. This information has
been used by us to classify the types of soil
and vegetation and to determine the to-
pography and hydrology affecting the
Lake Long tract and to determine whether
the wetlands characteristics, the elements
of the definition, are present. If the ele-


17 ERC 1383


Avo~velles Sbortsmen'si Leaguee v. Alexander


J 4 v








17 ERC 1384


ments of the definition are not present
then the Lake Long tract is not a wetland.

D. MERITS
"Wetlands" are included in "waters of
the United States" and were called "fresh
water wetlands" in theJuly 25, 1975 regu-
lation:
"(8) Freshwater wetlands, including
marshes, shallows, swamps, and similar
areas that are contiguous or adjacent to
other navigable waters and that support
freshwater vegetation. 'Freshwater wet-
lands' means those areas that normally
are characterized by the prevalence of
vegetation that requires saturated soil
conditions for growth and reproduc-
tion." (emphasis ours).
The revision in the July 19, 1977 regula-
tion refers to "wetlands" and arms
them, 33 C.F.R. 323.2(c), as follows:
"(c) The term 'wetlands' means 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 typi-
cally adapted for life in saturated soil con-
ditions. Wetlands generally include
swamps, marshes, bogs and similar
areas." (emphasis ours).
There is no dispute that wetlands are
transition areas lying between the aquatic
and the terrestrial zone. Necessarily wet-
lands are at times wet and at other times
dry. By their nature they are subject to pe-
riodic pulses of water. Were they always
wet they would constitute part of the
aquatic zone. Likewise, were they always
dry they would constitute part of the ter-
restrial zone. How wet and how often they
are wet (in order to qualify as wetlands) is
determined by the land's capacity under
normal circumstances to support "a preva-
lence of vegetation typically adapted for
life in saturated soil conditions." There
are three areas of analysis to determine
whether a tract of land is or is not a wetland
under the 1977 definition: The type of
soils, the degree and frequency of inunda-
tion and saturation, and the type of vegeta-
tion. We have made findings of fact on
each of these elements sufficient to form a
basis for our legal conclusion.
In order to determine whether a particu-
lar area is or is not a wetland, both the
1975 and the 1977 definitions utilize the
characteristics of the hydrology, the soils,
and the vegetation. The 1977 definition is


broader in several respects. The purpose
of the revision, as we shall see, was to
broaden jurisdiction and to eliminate
problems of interpretation arising from
the final interim definition of 1975.
The most important revision is the elim-
ination of the words "vegetation that re-
quires saturated soil conditions" appearing
in the 1975 definition by the words "vege-
tation typically adapted for life in saturated
soil conditions". No one can deny that the
"wetlands" concept is broadened by the
revision. The private defendants contend
that wetlands should be restricted to the
deep swamp or cypress swamp areas in
which only Bald Cypress, Button Bush,
Black Willow, Tupelo Gum, Swamp Privet
and Water Elm can survive. All the experts
agreed that these species are the most tol-
erant of the vegetable species and can sur-
vive in soils which are inundated or satu-
rated almost 100% of the time. There is no
doubt that the 1975 definition included
this species at the very least. The effect of
this theory is to reduce the area of "wet-
lands", and consequently the jurisdic-
tional reach of 404, to the ultimate. It
would be reduced to the smallest area
possible. It implies that "wetlands" as
used in the CWA is a scientific term, that it
is immutable and that it must be interpre-
ted with no consideration for the goals and
purposes of the Act. As a matter of fact, it
represents the same trend of thought, the
same theory, the same interests which have
been rejected previously in the litigation,
in the contest involved in the 1976 amend- i
ments, in the revision of 1977 and in the
passage of the CWA in December 1977
without disturbing the final revision. We 0
find absolutely no basis for the contention
that the words "for life" means that "wet-
lands" vegetation must spend all of its life
in inundated or saturated soils. We hold
that the word means simply the ability to
live, to exist, to tolerate. Only the latter in-
terpretation is consistent with the balance
of the clause in which "for life" appears;
with the rest of the definition and with the
purpose of the 1977 revision. If the mean-
ing of "wetlands" is to be restricted in this
manner, there was no need to revise in
1977. We agree with plaintiffs1 that the



I "Stress borne by the rooting zone ofplants
in saturated soil conditions is less severe than
the stress borne by rooting zones covered by
standing water because the pathway for diffu-
sion of oxygen through the stem to the root


A voyvelle Sportsmen's5 League v. A lexander







Avoyelles Sportsmen's League v. Alexander

words "vegetation typically adapted for
life in saturated soil conditions" includes
) all vegetation which is capable of and does
adapt regardless of a mechanism it might
employ to do so. The scientific evidence
establishes that there is little or no dispute
regarding which vegetable species are in-
tolerant. The only discernable disputes
occurred in the degree of tolerance as-
signed to each tolerant species by different
scientific experts. These disputes are more
a matter of semantics than actual differ-
ences of opinion because the definitional
standards for the classifications VT, T, and
ST differed. However they all had a com-
mon characteristic they were all tolerant
to a greater or lesser degree. None were
intolerant. We hold that'all species except
the intolerant species are wetland species.
S)We hold in fact that the very purpose of the
revision was to close a technical loophole
which might exclude many species which
are truly aquatic by adaption but do not re-
quire saturated soil from a biological stand-
point for their th growth and reproduction.
Certainly this broader interpretation was
the intent of the drafters of the 1977 revi-
sion.
"At the same time, we have changed our
description of the vegetation involved
Sby focusing on vegetation 'typically
adapted for life in saturated soil condi-
tions.' The old definition of'freshwater
wetlands' provided a technical 'loop-
hole' by describing the vegetation as
that which requires saturatedsoil condi-
tions for growth and reproduction, there-
by excluding many forns of truly aquatic vege-
tation that are prevalent in a inundated or

, ) zone which facilitates aerobic respiration is sig-
nificantly shorter in plants that grow in saturat-
ed soil conditions than in plants whose stems
are partially submerged (Teskey, Hook). Thus,
many bottomland hardwood species, including
all of the tolerant species, as well as the three
intermediately tolerant species found on the
tract (bitter pecan, sugarberry (Cletis laevigata)
and honey locust), as identified in
S Teskey/Hinckley Vol. II (PIs. 15, p. 18-19), have
the adaptations required to grow and survive in
soils saturated for significant portions of the
growing season (Teskey, Radford, Kral). How-
ever, these same species may not be able to tol-
erate nearly permanent inundation or standing
water in deep swamp conditions. Since 33 CFR
323.2(c) speaks of the ability to live in saturat-
ed soil rather than inundated conditions, areas
Dominated by species which can grow in saturat-
ed soils, but may not be able to survive in deep
standing water subject to prolonged, regular
flooding, should not be excluded from being
considered as wetlands."


17 ERC 1385


saturated area, but that do not require saturat-
ed soil from a biological standpoint for their
growth and reproduction." Fed.Reg., Vol.
42, No. 138, at p. 37128 (1977). (empha-
sis ours).
[3] This broad interpretation is sup-
ported in revisions of other parts of the
definition. The words "those areas that are
periodically inundated" in the 1975 defini-
tion are replaced by the words "Those
areas that are inundated or saturated by
surface or brown water at a frequency and
duration sufficient to support" certain
vegetation. Both of these definitions em-
phasize the intermittent or temporary du-
ration of the inundation. The revision
makes it clear that inundation is not neces-
sary if the actual saturation is present. De-
fendants have contended that wetlands are
restricted to deep swamp or cypress
swamp areas. We find however that the de-
fendants' interpretation is strained and in-
appropriate in the context of the definition
and completely in conflict with the first
sentence in the revision which is quoted
above. We find also that it is refuted by the
Corps' explanation of the revised lan-
guage.
"The reference to 'periodic inundation'
has been eliminated. Many interpreted
that term as requiring inundation over a
record period of years. Our intent under
Section 404 is to regulate discharges of
dredged or fill material into the aquatic
system as it exists, and not as it may have
existed over a record period of time.
The new definition is designed to
achieve this intent. It pertains to an ex-
isting wetland and requires that the area
be inundated or saturated by water at a
frequency and duration sufficient to
support aquatic vegetation. This inun-
dation or saturation may be caused by
either surface water, ground water, or a
combination of both." Fed.Reg. Vol.42,
No. 138, p. 37128 (1977).
The 1977 revision retains the expres-
sion "prevalence of vegetation" which was
used in the 1975 revision. We interpret the
term to mean the dominance of tolerant or
aquatic species to the virtual exclusion of
purely upland, intolerant or nonaquatic
species. If a substantial growth of intoler-
ant species is present, the prevalence of
tolerant species is destroyed. The explana-
tory comment of the Corps sustains this in-
terpretation:
"Concerns were also expressed over the
types and amount of vegetation that
would be required to establish a 'wet-







171'.RC 1386 ll'ood v. Pu-illo


land' under this definition. We have
again used the term prevalencee' to
distinguish from those areas that have
only occasional aquatic vegetation inter-
spersed with upland or dry land vegeta-
tion." Fed.Reg., Vol. 42, No. 138, at p.
37128 (1977).

E. CONCLUSION
We find that the definition was revised
in 1977 to assure that wetlands was suffi-
ciently broad in concept to give jurisdic-
tion required for achieving the goals of the
CWA. We also find that the Lake Long
tract is not inundated or saturated to a wet-
lands standard from about June 15th to
July 1st to December Ist of each year but
that from the Ist of December to approxi-
matelyJune 15th it is inundated or saturat-
ed intermittently and at different dura-
tions but to a sufficient frequency and du-
ration to support vegetation as described
in the definition. We find in addition that
the plant species mentioned above (Find-
ing of Fact No. 8) are capable of adapting
to the inundated and saturated condition
existing on the Lake Long tract, that they
are found in prevalence on said tract to the
virtual exclusion of any upland species and
that these species have adapted, that is,
they grow and reproduce normally and
without artificial aids or cultivation
throughout the Lake Long tract. The sci-
entific evidence goes into much detail re-
garding the anaerobic condition of soils in
an inundated or saturated condition; how
certain species such as Bald Cypress toler-
ate and adapt by oxidizing the
rhizosphere; how others adapt by certain
adaptations or other adapting mecha-
nisms. Much of the briefing by the parties
involved a detailed discussion of the dif-
ferent methods of adapting. We fail to find
any basis in the definition for these scien-
tific distinctions. We hold the scientific ev-
idence shows without substantial disagree-
ment that all of the plant species which ap-
pear in prevalence on the Lake Long tract
(Finding of Fact No. 8) are tolerant spe-
cies. The only difference between experts
is the degree of tolerance in specific spe-
cies. Significantly none are found to be in-
tolerant. Thus where these species appear
in prevalence as they do here in a wetland
environment of soils and hydrology the
elements of the wetland definition are pre-
sent. The Lake Long tract is therefore wet-
lands.
The sole exception to the above findings
is related to the areas covered by Roxanna


and Norwood soils and this finding is
based on the lack of evidence of wetland
characteristics in the soil. Perhaps such ev-
idence is available but it is not in this re-
cord. We therefore find that the record is
deficient of evidence to show the wetland
nature of Roxanna and Norwood soils
which lie in the Lake Long tract along the
bank of the Red River and along the Lake
Long ridge. We also find that the said soils
along the Lake Long ridge from the
nort ernmost point of Pointe Basse to the
intersection with Bayou Natchitoches are
so thin that they lack separate identity and
must take their identity from the wetlands
around them and be subject to regulation
under 404. (See Exhibit 1 attached).14
We approve the Government's final
wetland determination filed in these pro-
ceedings on March 26, 1979 except those
portions of the Application of Methodology
and Other Major Points Considered which con-
flict with our finding restricting non-wet-
land areas to the Red River bank and the
portion of the Lake Long ridge as above
set forth on Exhibit 1 attached.
We grant a permanent injunction as
prayed for enjoining any additional clear-
ing, except by permit under Sec. 404, 33
USC 1344, of the wetlands in the Lake
Long Tract as determined by this opinion
with the exception of those wetlands
cleared prior to the issuance of our tempo-
rary restraining order of November 7,
1978.
We repeat and reaffirm our findings in
Avoyelles Sportsmen's League v. Alexander,
supra, regarding the cleared lands above
referred to.
THUS DONE AND SIGNED in Cham-
bers, at Alexandria, Louisiana, on this the
12th day of March, 1981.

WOOD v. PICILLO
Rhode Island Supreme Court
W. EDWARD WOOD, et al. v. WAR-
REN V. PICILLO, et al., No. 80-419-Ap-
peal, April 9, 1982
LAND
Federal, state, and local regulation -
Nuisance (8.15)

14 Exhibit I is a reduced facsimile of an over-
lay (Court Exhibit #1) of the plat attached to
the Government's final determination of March
26, 1979. The outline of the nonwetlands
shown thereon are the outer limits of the (61)
Roxanne and (52) Norwood soils as shown on
soils map (Gov. Ex. G) rounded offso as to elim-
inate sharp irregular indentations and pockets.


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17 ERC 1386


Wood. Pirillo




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