concurring in part, dissenting in part:

I join in the majority's holding that the southern portions of Leslie’s property meet the Clean Water Act requirements for Corps’ jurisdiction. I disagree, however, with the majority’s conclusion that the district court erred in its treatment of the crystallizers and calcium chloride pits.

The crystallizers and pits are seasonal bodies of water that derive their major source of water from rain. There is standing water in the crystallizers and pits during the winter rainy season, when the rain collects, until early to mid-spring, when all the water has evaporated. The rest of the year the crystallizers and pits are dry. Although the majority is correct that seasonal nature of the ponding is no obstacle to Corps’ jurisdiction,” the cycle of ponding in the crystallizers and pits creates no hydrological connection with any other body of water. This fact distinguishes Quivira Mining Co. v. EPA, 765 F.2d 126 (10th Cir.1985) and United States v. Phelps Dodge, 391 F.Supp. 1181 (D.Ariz.1975). Even though three fish may have found their way into one of the ponds, there is nothing in the record to show that water flows directly or indirectly from the crys-tallizers or pits into another body of water.

That being the case, the district court correctly determined that the crystallizers and pits are not “other waters” within the meaning of section 328.3(a)(3). It is therefore unnecessary to reach the issue on which the Supreme Court has declined to rule, see United States v. Riverside Bayview Homes, 474 U.S. 121 , 131 n. 8, 106 S.Ct. 455 , 461 n. 8, 88 L.Ed.2d 419 (1985): whether the Clean Water Act extends Corps’ jurisdiction to waters that are not “adjacent to bodies of open water." 1

. The majority holds that "the commerce clause power, and thus the Clean Water Act, is broad enough to extend the Corps’ jurisdiction to local waters which may provide habitat to migratory birds and endangered species." Congress does have power under the Commerce Clause to regulate wildlife and endangered species. Palila v. Hawaii Dep't of Land and Natural Resources, 471 F.Supp. 985 (D.Haw.1979), aff’d 639 F.2d 495 (9th Cir.1981) and Hughes v. Oklahoma, 441 U.S. 322 , 99 S.Ct. 1727 , 60 L.Ed.2d 250 (1976) stand for that proposition. However the issue in this case is not whether Congress has the power under the Commerce Clause to regulate wildlife and endangered species, but whether Congress meant to extend Corps’ jurisdiction under the Clean Water Act to the full extent of its commerce clause power. Specifically, it is: is it reasonable for Corps’ jurisdiction to rest on the fact that migratory birds and endangered species may use the waters as a habitat? In Utah v. Marsh, 740 F.2d 799 (10th Cir.1984), the other opinion on which the majority relies, the lake was used for several purposes that established a connection to interstate commerce. It is unclear whether the Marsh court would have found a substantial enough effect on interstate commerce, and thus Corps’ jurisdiction under the Clean Water Act, had the only connection to interstate commerce been that "the lake was on flyway of several species of migratory waterfowl....” Id. at 803 .

In addition, in Riverside Bayview Homes the Supreme Court held that since the Corps’ asserted jurisdiction over adjacent wetlands was brought to the attention of Congress "through legislation specifically designed to supplant it” (Congress' consideration of the Clean Water Act of 1977, a major piece of legislation aimed at achieving “interim improvements within the existing framework” of the Clean Water Act, H.R. Rep. No. 95-139 pp. 1-2 (1977)), and Congress rejected efforts designed to curb that jurisdiction, that was "at least some evidence of the reasonableness of the [Corps’] construction.” 474 U.S. at 137 , 106 S.Ct. at 464 . Such evidence *362 of reasonableness does not exist in this case. The Corps issued new regulations governing its regulatory programs on November 13, 1986 in order to clarify the scope of the Section 404 permit program. The new regulations placed the definition of "waters of the United States” into a new Part 328 of Title 33 of the Code of Federal Regulations. As a further clarification, and as an addition to the old regulations, the new regulations stated that "waters of the United States” also include the following: areas which are "or would be” used as a habitat for migratory birds or endangered species. 33 C.F.R. § 328.3 (a)(3). This 1986 addition to, or clarification of, the Corps’ regulations was not considered during congressional debates on the Clean Water Act of 1977. Therefore, the evidence of reasonableness that the Supreme Court found regarding the Corps’ regulations in Riverside Bayview Homes does not apply to the 1986 clarification of those regulations, in particular, the list that includes migratory and endangered species habitats.