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January 15, 2003


The opinion of the court was delivered by: Harold Ackerman, Senior District Judge.


This matter comes before the court on Plaintiff's motion for summary judgment. For the reasons outlined below, Plaintiff's motion is DENIED.

I. Factual and Procedural Background
Plaintiff FD & P Enterprises ("FD & P") is a corporation engaged in providing freight transportation services to the New York-New Jersey metropolitan area. FD & P owns a 100-acre property located on Secaucus Road in Jersey City, New Jersey ("the FD & P Property"). FD & P hopes to construct an intermodal rail facility on the FD & P Property, which would be used for transferring cargo from trains to trucks. The FD & P Property lies along the eastern edge of the Hackensack Meadowlands. The western border of the FD & P Property is adjacent to Penhorn Creek, a non-navigable tributary of the Hackensack River. United States' Response to Plaintiff's Statement of Uncontested Material Facts ("Defendant's Facts"), ¶ 2, 4. The Hackensack River is a navigable body of water used in interstate commerce. More than a dozen creeks and ditches contribute water to the Hackensack River in the Meadowlands. Declaration of Kevin J. Coakley in Support of Plaintiff's Motion for Summary Judgment ("Coakley Declaration"), at 425. The United States Army Corps of Engineers ("the Corps") has deemed 77.0 acres of the FD & P Property to be wetlands, as defined in 33 C.F.R. § 328.3(b).*fn1 Defendant's Facts, ¶ 2. As part of the construction of the intermodal facility, FD & P plans to fill 53.5 acres of the wetlands on its property. Plaintiff's Statement of Uncontested Material Facts ("Plaintiff's Facts"), ¶ 14.

In order to legally construct the intermodal facility, FD & P applied to the Corps for a permit under Section 404 of the Clean Water Act ("CWA") on December 18, 1992. Nearly seven years of negotiations between FD & P and the Corps followed, during which various proposals for mitigation of the losses of wetlands caused by FD & P's project were considered and rejected by both sides. FD & P filed this action on July 23, 1999, and filed an amended complaint on July 26, 2000. FD & P now seeks summary judgment on Count II of its amended complaint, alleging that the Corps lacks jurisdiction over the wetlands in question.

II. Jurisdiction Under the Clean Water Act
The issue presented to the court in this case is straightforward: does the CWA confer jurisdiction over wetlands abutting a non-navigable tributary, which feeds into a navigable body of water?

Section 404(a) of the CWA, 86 Stat. 884, as amended, 33 U.S.C. § 1344(a), regulates the discharge of dredged or fill material into "navigable waters." Under the statute, the Corps may issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a) (2002). The statute defines the term "navigable waters" as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7) (2002).

The Corps has promulgated the following regulations to interpret these provisions of the CWA:

(a) The term `waters of the United States' means

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) 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 including any such waters:
(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purpose by industries in interstate commerce;
(4) All impoundments of waters otherwise defined as waters of the United States under the definition;
(5) Tributaries of waters identified in paragraphs (a)(1)-(4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section.
33 C.F.R. § 328.3(a) (2002).

In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Supreme Court interpreted the CWA and the Corps' corresponding regulations as follows:

Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into `navigable waters,'. . . the Act's definition of `navigable waters' as `the waters of the United States' makes it clear that the term `navigable' as used in the Act is of limited import. In adopting this definition of `navigable waters,' Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed `navigable' under the classical understanding of that term. (internal citations omitted) . . . [T]he evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term `waters' to encompass wetlands adjacent to waters as more conventionally defined.
474 U.S. at 133, 106 S.Ct. 455.

Therefore, the Riverside Bayview court concluded that, given "the inherent difficulties of defining precise bounds to regulable waters," wetlands which are not themselves navigable bodies of water may nonetheless be regulated under the CWA when they are adjacent to navigable waters. 474 U.S. at 133, 106 S.Ct. 455. It is important to note that the Court in Riverside Bayview explicitly declined to extend its holding to cases involving wetlands adjacent to non-navigable waters. See id. ("[w]e are not called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . . and we do not express any opinion on that question.").

Despite this limiting language, most courts, including the Third Circuit, held that the reasoning of Riverside Bayview extended CWA jurisdiction to wetlands adjacent to nonnavigable tributaries which flowed into navigable waters. Thus, in United States v. Pozsgai, 999 F.2d 719 (3d Cir. 1993), the defendant discharged fill material into wetlands adjacent to a non-navigable stream, which flowed into the Pennsylvania Canal, a navigable waterway. 999 F.2d at 730. Under these circumstances, the Third Circuit held that the CWA conferred jurisdiction upon Pozsgai's filling activities. Citing to the legislative history of the CWA, the court noted that "`[t]he conferees fully intend[ed] that the term `navigable waters' be given the broadest possible constitutional interpretation . . .'" 999 F.2d at 727 (citing S.Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144, U.S. Code Cong. & Admin. News 1972, 3668). Other circuits reached similar conclusions. See, e.g., Quivira Mining Co. v. EPA, 765 F.2d 126 (10th Cir. 1985) cert. denied, 474 U.S. 1055, 106 S.Ct. 791, ...

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