Petitioners Brief — United States v. Riverside Bayview Homes, Inc.

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No. 84-701 MAY 6 5

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' CUERK

In the Supreme Court of the United Stuten

OCTOBER TERM, 1984

UNITED STATES OF AMERICA, PETITIONER

Vv.

RIVERSIDE BAYVIEW HOMES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

REX E. LEE

Solicitor General

F. HENRY HaBIcuT II

Assistant Attorney General

LOUIS F. CLAIBORNE

Deputy Solicitor General

KATHRYN A. OBERLY

Assistant to the Solicitor General

ANNE S. ALMY

ELLEN J. DURKEE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether, under the Clean Water Act of 1977, 33

U.S.C. 1251 et se., federal jurisdiction to regulate dis-

charges into “wetlands” is limited to areas that support

aquatic vegetation only by virtue of “frequent flooding”

from adjacent streams, lakes, or seas.

(1)

PARTIES TO THE PROCEEDING

In addition to the parties listed in the caption, Allied

Aggregate Transportation Company is a respondent in

this case. So far as the United States is aware, Allied

has no interest in the case separate from that of River-

side Bayview Homes, Inc. Cf. Pet. App. 22a n.2.

TABLE OF CONTENTS

Page

a - 1

e : . —— 1

Statute and regulations involved 2

r ũ ͤ᷑ cTƷrfrf —-— 2

Summary of argument 1 11

r ESTEE K———„— 16

I. The court of appeals ignored well-established

rules of statutory construction in interpreting

the scope of Section 404 wetlands jurisdiction... 17

II. The Corps’ assertion of Section 404 jurisdiction

to regulate discharges of dredged or fill material

into wetlands adjacent to streams, lakes, or seas

comports with congressional intent 19

A. The Act’s objectives and legislative history

demonstrate that Congress intended to reg-

ulate discharges of dredged or fill material

into “wetlands” beyond the limits of tradi-

tional navigable waters 19

B. Extensive judicial authority supports a

broad interpretation of Section 404 jurisdic-

e acineeernnosoosconvs 2 27

C. The Fifth Amendment does not require a

narrow construction of Section 404 30

III. The Corps’ regulatory implementation of its

jurisdiction under Section 404 is based on sound

legal, scientific, and administrative considera-

, ‚ͥͥͥ 22 rv 33

A. Nothing in the Corps’ definition of wet-

lands” requires that they be created by

“frequent flooding” from adjacent navigable

SE 33

Argument—Continued: Page

B. The regulatory definition of “wetlands” is

scientifically sound and serves to promote

Congress’s water quality concerns 37

C. The Corps’ regulatory definition of its Sec-

tion 404 jurisdiction ensures that critical

wetlands will receive the protection intended

by Congress and promotes ease of adminis-

tration for regulators and landowners alike.. 40

IV. The southern portion of Riverside’s property is

a wetland subject to Section 404 regulatory

rr! AAA 44

D Ad 49

TABLE OF AUTHORITIES

Cases: Page

Agins v. City of Tiburon, 447 U.S. 25 31

Avoyelles Sportsmen’s League, Inc. v. Alexander,

511 F. Supp. 278, aff’d in part and rev’d in

part on other grounds, 715 F.2d 897 33

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715

r le hor oe Paes Bier one! passim

Bob Jones University v. United States, 461 U.S.

PP. . PL SE SIR 8 DALES a ROE 13, 25

Buttrey v. United States, 690 F.2d 1170, cert. de-

,,, ̃ ———— 31-32

Chemical Manufacturers Ass’n v. NRDC, No. 83-

I / 19

Chevron U.S.A. Inc. v. NRDC, No. 82-1005 (June

r Ute re FO 19

Consolidation Coal Co. v. Costle, 604 F.2d 239 28

Deltona Corp. v. Alexander, 682 F.2d 888 32

Deltona Corp. v. United States, 657 F.2d 1184,

cert. denied, 455 U.S. 1017 5 88 32

E. J. du Pont de Nemours & Co. v. Train, 430 U.S.

— — K oe 19

EPA v. California ex rel. State Water Resources

Control Board, 426 U.S. 200 ................................. 20

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555.. 36-37

Hodel v. Virginia Surface Mining & Reclamation

FO Senos 22, 29, 31, 32, 40

Hurley v. Kincaid, 285 U.S. 95 9 31

Cases—Continued : Page

Kaiser Aetna v. United States, 444 U.S. 164 ........ 31, 32

Leslie Salt Co. v. Froehlke, 578 F.2d 742 28

Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

I Ge Ms i etcescccectnniincignnsnciiccenneciisescdnecscenes 23

NRDC v. Callaway, 392 F. Supp. 68 5, 22

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367. 25

Regional Rail Reorganization Act Cases, 419 U. 8.

% 31

Rogers v. Lodge, 458 U.S. 618 45

Ruckelshaus v. Monsanto Co., No. 83-196 (June 26,

r rN ON OC 31

Train v. Colorado Public Interest Research Group,

,, e ete: 18

Udall v. Tallman, 380 US. FFF 37

United States v. American Trucking Ass’ns, 310

r 18

United States v. Appalachian Electric Power Co.,

. ** 22

United States v. Ashland Oil & Transportation Co.,

SS tea ae 22

United States v. Byrd, 609 F.2d 1204 _.............. 22, 28, 29,

30-31, 34

United States v. City of Fort Pierre, 747 F.2d

REE ER BEET a eS nes MEME, OR 28

United States v. Holland, 373 F. Supp. 6666 5, 29

United States v. Huebner, 752 F.2d 1233 27.28

United States v. Republic Steel Corp., 362 U.S.

1 J 95 cS IE DRIED DIET 22, 28

United States v. Texas Pipe Line Co., 611 F. 2d

FFF 28

United States v. Tilton, 705 F. 2d 429 9 28, 29

Utah v. Marsh, 740 F. 2d 799 22. 28, 29

Wickard v. Filburn, 817 U.S. 111. 40

Zabel v. Tabb, 430 F.2d 199, cert. denied, 401 U.S.

910 — e eee 22

Constitution, statutes and regulations:

U.S. Const. :

Art. I, § 8, Cl. 3 (Commerce Clause) 5, 13, 22, 29,

32, 40

. A 13, 30, 32

Just Compensation Clause 30

Statutes and regulations—Continued : Page

Administrative Procedure Act, 5 U.S.C. 702 31

Clean Water Act of 1977 (formerly Federal Water

Pollution Control Act), 33 U.S.C. 1251 et seq...2, 3, 11,

I I / / 3, 20

D 20

, cscs earimnbieenatiatl 5

, ( 3

re 37

r tices lana 37

4 n 19

r eeteliiannisiealiniss 3, 20

r ... ̃ ̃˙ ee anc ea on n= 19

e 21

Zee passim

r x 30, 40

1 „ • 21, 41

EEE SE een ie eee ee Rae 21

, T 23

r i slecnictem aseslaniinatinlions 48

TE ( ee 24

— 17, 25

D / eae as esr eE en 20

, - 2, 4, 11, 20

Rivers and Harbors Appropriation Act of 1899,

eee 4

33 C. F. R.:

Pt. 209:

Section 209.120 (d) (1) (197a—292e 4

Section 209.120 (d) (2) (1976)))) 5

Section 209.120 (d) (2) () (1976) 7, 8, 35, 45

Section 209.120 (e) (2) (1976) 5

Section 209.260 (J) (197)7ꝓ́y˖̃᷑ n 4

Section 209.260 (k) (ii) (1973ͥI1)ĩ 4

I C 30, 41

r 1 41

eee 42

Section 320.4 (b) 9 42

VII

Regulations Continued: Page

Z e 30

r 6

Section 323.2(a) (3) .................................... 16, 29

r ee Nee passim

Section 338.23(6) ................................... 6, 15, 16, 46

Pt. 325:

r 11

Pt. 330:

. AI PRS ee eae ede 42

r ee 6

40 C. F. R.:

nnn ace ORR RE 21, 30, 41

er 41

Section 230.10 (a) (3) 6 41

Section 230.20-23 0.61111. 41

Section 230.70-230.7ꝰ7 . 42

38 Fed. Reg. 10834 (1973) 8 ED 18

SO Fred. Rew. IBLIG (1G74) oo... ccccccccccecceeeccoceseee 4

40 Fed. Reg. (1975) :

r Y 5

. i 5

D ̃è˙—“ . ! 5

, caves nee 5

42 Fed. Reg. (1977):

1 A Te 6

pp. 37127-37128 . iid a ae a 29

SE 3, 4, 34, 35, 45, 46, 48

47 Fed. Reg. 31795 (1982) ee 6

Miscellaneous:

118 Cong. Rec. 33699 (1972) 21

123 Cong. Rec. (1977) :

.. 25

ieee 22

EL . es 26

rr 25, 26

e a ae ce ens em 27

VIII

Miscellaneous —Continued: Page

r ——— 23

e —— 25

r 37

c —— 27

e 27

1 26, 27

r 24, 25, 27, 43

e 3, 26

Zr 1 25

rr 8 22

Z 25

r e 3, 27

aer 27

Council on Environmental Quality, Our Nation’s

Wetlands, An Interagency Task Force Report

0 ial alah tisigcimetnaintl 2, 3, 38

Development of New Regulations by the Corps of

Engineers, Implementing Section 404 of the

Federal Water Pollution Control Act Concern-

ing Permits for Disposal of Dredge or Fill Ma-

terial: Hearings Before the Subcomm. on Wa-

ter Resources of the House Comm. on Public

Works and Transportation, 94th Cong., Ist Sess.

r 22

Fish and Wildlife Service, U.S. Dep't of the In-

terior, Classification of Wetlands and Deepwater

Habitats of the United States (1979). 2, 37, 38, 45, 48

J. Kusler, Environmental Law Institute, Our Na-

tional Wetland Heritage: A Protection Hand-

ES ES Ee 0 a 38, 39

H.R. Rep. 92-911, 92d Cong., 2d Sess. (1972) 20

H.R. Rep. 93-1396, 93d Cong., 2d Sess. (1974) 5

H.R. Rep. 95-139, 95th Cong., Ist Sess. (1977) 1 27

H.R. Conf. Rep. 95-830, 95th Cong., Ist Sess.

SI — ³ 5 AAA iat tcabnnn 22

Office of Technology Assessment, Congress of the

United States, OTA-0-206, Wetlands: Their Use

.. passim

43 Op. Att’y Gen. No. 15 (Sept. 5, 19799 18

Miscellaneous—Continued : Page

R. Tiner, Fish and Wildlife Service, U.S. Dep’t of

the Interior, Wetlands of the United States:

Current Status and Recent Trends (1984) 37, 38, 39

Section 404 of the Federal Water Pollution Control

Act Amendments of 1972: Hearings Before the

Senate Subcom m. on Public Works, 94th Cong..,

, a lenriuientiios 4, 22

S. Rep. 92-414, 92d Cong., Ist Sess. (19717 20, 25

S. Rep. 95-370, 95th Cong., Ist Sess. (1977) .......... 23

In the Supreme Court of the United States

OCTOBER TERM, 1984

No 84-701

UNITED STATES OF AMERICA, PETITIONER

RIVERSIDE BAYVIEW HOMES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-19a)

is reported at 729 F.2d 391. The judgment order of the

district court (Pet. App. 42a-44a) is unreported. Two

previous opinions of the district court (Pet. App. 22a-31a,

32a-41la) are also unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 7, 1984. A petition for rehearing was denied on

June 8, 1984 (Pet. App. 20a-21a). On August 27, 1984,

Justice O’Connor extended the time for filing a petition

for a writ of certiorari to and including November 5,

1984. The petition was filed on November 1, 1984, and

granted on February 19, 1985. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATUTE AND REGULATIONS INVOLVED

Relevant provisions of the Clean Water Act of 1977, 33

U.S.C. 1251 et se., and implementing regulations pro-

mulgated by the United States Army Corps of Engineers

are reprinted at Pet. App. 45a-48a.

STATEMENT

1. The court of appeals has held that respondent’s

property is not the kind of “wetland” that is subject to

the regulatory jurisdiction of the United States Army

Corps of Engineers and hence that respondent may fill in

its property without securing a permit under Section 404

of the Clean Water Act of 1977 (CWA), 33 U.S.C. 1344.

The issue presented by this case is the extent to which

the Nation’s “wetlands” are “waters of the United

States” within the meaning of Section 502(7) of the

CWA, 33 U.S.C. 1362(7), and therefore subject to fed-

eral regulatory jurisdiction. Before turning to the facts

of this case, we set forth a brief description of “wet-

lands” generally and the statutory and regulatory scheme

for their protection.

a. In general, and not as a strictly legal or jurisdic-

tional matter, wetlands are areas characterized by vegeta-

tion growing in soils that are periodically or normally

saturated with water. See generally Office of Technology

Assessment, Congress of the United States, OTA-0-206,

Wetlands: Their Use and Regulation (1984) [hereinafter

cited as Wetlands]; Fish and Wildlife Service, U.S. Dep’t

of the Interior, Classification of Wetlands and Deepwater

Habitats of the United States (1979) [hereinafter cited

as Classification] ; Council on Environmental Quality, Our

Nation’s Wetlands, An Interagency Task Force Report

(1978) [hereinafter cited as Our Nation’s Wetlands}.

Familiar types of wetlands are marshes, swamps, and

bogs. Wetlands occur along gradually sloping areas be-

tween uplands and deep-water environments, such as

rivers and lakes, or form in basins that are isolated from

larger water bodies. Wetlands 3. Freshwater wetlands,

which account for approximately 90% of total remaining

wetlands in the country, may be fed by ground water,

surface springs, streams, run-off from the surrounding

terrain, or a combination of these sources. Our Nation’s

Wetlands 10. Water levels in freshwater wetlands rise

and recede in part according to rainfall, so that at times

they may be quite dry. Ibid.

It is widely recognized that wetlands perform unique

ecological services. For example, many wetlands purify

water by holding nutrients and recycling pollutants, they

provide flood protection by retarding surface runoff from

rainwater and shielding upland areas from storm dam-

age, and they also provide vital food resources and

habitat for fish and wildlife. Our Nation’s Wetlands 19-

27; see also 123 Cong. Rec. 26718-26719 (1977) (remarks

of Sen. Baker). In a 1977 congressional debate, it was

reported that wetlands provide $140 billion worth of flood

control and water purification services. 123 Cong. Rec.

38994 (1977) (remarks of Rep. Lehman).

b. The Clean Water Act is a comprehensive statute

designed “to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.” 33

U.S.C. 1251 (a) In Section 301 (a) of the CWA, 33

U.S.C. 1811(a), Congress enacted an absolute prohibition

against the discharge of pollutants into the Nation’s wa-

ters, excepting only discharges made in compliance with

other sections of the Act, including Section 404.

Pursuant to Section 404 of the CWA, 33 U.S.C. 1344,

the United States Army Corps of Engineers administers

a permit program for the discharge of dredged or fill

1In 1972, Congress passed extensive amendments to the Federal

Water Pollution Control Act (FWPCA), 33 U.S.C. 1251 et seq., and

for the first time established a comprehensive federal program for

the control and abatement of water pollution. The 1977 Amend-

ments to the FWPCA changed the popular name of the statute to

the Clean Water Act. 33 U.S.C. 1251 note. For convenience, we

shall refer to the statute by its new name throughout this brief.

material into “navigable waters.” The statute defines

“navigable waters” as “waters of the United States, in-

cluding the territorial seas.” 33 U.S.C. 1362(7). The

Corps of Engineers first published regulations further de-

fining “navigable waters” for purposes of the Section 404

permit program on April 3, 1974. 39 Fed. Reg. 12115.

Those regulations limited the Corps’ assertion of jurisdic-

tion under Section 404 to the same waters previously reg-

ulated by the Corps pursuant to the Rivers and Harbors

Appropriation Act of 1899, 33 U.S.C. 401 et seg. Thus,

“navigable waters” for both Section 404 and Rivers and

Harbors Act purposes initially were defined by the Corps

as “those waters of the United States which are subject

to the ebb and flow of the tide, and/or are presently, or

have been in the past, or may be in the future susceptible

for use for purposes of interstate or foreign commerce”

(33 C. F. R. 209.120(d)(1) (1974)). Under this defini-

tion, commonly referred to as the “traditional” definition

of navigable waters, the Corps exercised extremely limited

jurisdiction over freshwater wetlands; only wetlands sub-

ject to such regular inundation by lacustrine or riverine

flow so as to be considered part of a navigable water

body were encompassed by the regulations.“

The Corps’ initial interpretation of the scope of its

jurisdiction under Section 404 met with substantial op-

position. The Environmental Protection Agency inter-

preted the CWA as a congressional assertion of signifi-

cantly broader federal jurisdiction than would be encom-

passed by the traditional definition of “navigable wa-

ters.” See Section 404 of the Federal Water Pollution

Control Act Amendments of 1972: Hearings Before the

Senate Comm. on Public Works, 94th Cong., 2d Sess. 349-

351 (1976) (letter from Russell E. Train, EPA Admin-

istrator, to Lt. Gen. W. C. Gribble, Jr., Chief, Corps of

2In freshwater bodies, only those wetlands below the ordinary

high water mark were regulated, and jurisdiction in tidal areas

was limited to wetlands below the mean high water mark. 33 C.F.R.

209.260(j) and (k) (ii) (1974).

Engineers)“ In addition, the House Committee on Gov-

ernment Operations called upon the Corps to abandon its

narrow view of Section 404 jurisdiction and to use that

provision to protect wetlands above the mean high water

line from the damage caused by the discharge of dredged

or fill material. H.R. Rep. 93-1396, 93d Cong., 2d Sess.

23-27 (1974). Several federal courts agreed that the

Corps had given Section 404 a more restrictive reading

than had been intended by Congress. E. g., United States

v. Holland, 373 F. Supp. 665, 670-676 (M.D. Fla. 1974).

In NRDC v. Callaway, 392 F. Supp. 685, 686 (D.D.C.

1975), the court held that in the CWA Congress “as-

serted federal jurisdiction over the nation’s waters to the

maximum extent permissible under the Commerce Clause

of the Constitution. Accordingly, as used in the Water

Act, the term [‘navigable waters’] is not limited to the

traditional tests of navigability.“ The court ordered the

Corps to publish new regulations “clearly recognizing the

full regulatory mandate of the Water Act” (ibid.).

In response to the order in NRDC v. Callaway, the

Corps promulgated interim final regulations providing for

a phased-in expansion of its Section 404 jurisdiction. 40

Fed. Reg. 31320 (1975); 33 C. F. R. 209.120(d) (2) and

(e) (2) (1976).* On July 19, 1977, the Corps published

EPA administers the CWA except as otherwise explicitly pro-

vided. 33 U.S.C. 1251(d). See also note 11, infra. The only re-

sponsibilities assigned to the Corps under the CWA are those con-

tained in Section 404.

*The Phase 1 regulations, which were made immediately effec-

tive, included coastal waters and traditional inland navigable wa-

ters and their adjacent wetlands. “Adjacent wetlands” were to

be determined by a prevalence of aquatic vegetation and periodic

inundation; neither the ordinary high water mark nor the mean

high tide line necessarily marked the shoreward limit of jurisdic-

tion. 40 Fed. Reg. 31321, 31324, 31326 (1975). The Phase 2 regu-

lations, which took effect on July 1, 1976, extended the Corps’

jurisdiction to lakes and primary tributaries of Phase 1 waters.

as well as wetlands adjacent to the lakes and primary tributaries.

Ibid. The Phase 3 regulations, which took effect on July 1, 1977,

extended the Corps’ jurisdiction to all remaining areas encompassed

its final regulations, in which it revised the 1975 interim

final regulations to clarify many of the definitional terms.

42 Fed. Reg. 37122.

Pursuant to the fina] regulations published in 1977, the

Corps’ jurisdiction under Section 404 extends to all “wet-

lands” that are “adjacent” to (1) navigable waters as

traditionally defined, (2) the tributaries of traditional

navigable waters, and (3) interstate waters, whether or

not navigable, and their tributaries. In addition, intra-

state lakes or streams and isolated wetlands are subject

to the Corps’ jurisdiction if the use, degradation, or de-

struction of those areas could affect interstate commerce.

See 33 C. F. R. 323.2(a).° The regulations define the criti-

eal terms “wetlands” and “adjacent” as follows (33

C. F. R. 323.2(c) and (d)):

are inundated or saturated by surface or =

— at a frequency and duration sufficient to

port, and that under normal circumstances do

port, a prevalence of vegetation typically adapted

for life in saturated soil conditions. Wetlands gen-

erally include swamps, marshes, bogs and similar

areas.

(d) The term “adjacent” means bordering, con-

tiguous, or neighboring. Wetlands separated from

other waters of the United States by man-made

dikes or barriers, natural river berms, beach dunes

and the like are “adjacent wetlands.”

by the regulations (e.g., perched or isolated wetlands and wetlands

adjacent to tributaries other than primary tributaries). /bid.

5 The Corps’ current definition of “waters of the United States.”

including “wetlands,” is a reworded, but substantively unchanged,

version of the definition promulgated in 1977. The 1977 definition

was amended in 1982 to make it identical to EPA's definition of

the same phrase (40 C.F.R. 122.2). See 47 Fed. Reg. 31795 (1982).

Thus, the two agencies define “waters of the United States”—and

hence the scope of federal regulatory jurisdiction—in the same way

for all Clean Water Act programs. regardless of which agency ad-

ministers a particular program.

—

2. Respondent Riverside Bayview Homes, Inc. owns

approximately 80 acres of property in Macomb County,

Michigan, near Lake St. Clair. In November 1976, River-

side submitted an incomplete permit application to fill a

portion of its property. Without completing the applica-

tion and without waiting for the Corps’ decision on its

request for a permit, Riverside commenced fill activity.

When Riverside refused to comply with a cease and de-

sist order issued by the Corps, the United States initiated

this action in the United States District Court for the

Eastern District of Michigan, seeking to enjoin River-

side’s unauthorized filling of wetlands. Riverside defended

its actions by asserting that none of its property was

subject to Clean Water Act jurisdiction. Following evi-

dentiary hearings, the district court (then-District Judge

Cornelia Kennedy) entered a preliminary injunction and

later a permanent injunction prohibiting further filling

activity on that portion of the property below the eleva-

tion of 575.5 feet until a Corps permit was obtained.

The district court found that the area subject to the

injunction was an “adjacent wetland” under the Corps’

1975 interim final regulations.“ This “wetland” area is

contiguous to Black Creek, a navigable water and tribu-

tary of Lake St. Clair. Pet. App. 23a. It was undisputed

that Riverside’s property is predominantly vegetated with

cattails, marsh grasses, and other wetlands plants—i.e.,

vegetation that is typically adapted for life in saturated

soil conditions. Ibid. The district court found that, ex-

cept for periodic surface water inundation from their

overflow, the nearby water bodies (Black Creek, Clinton

The relevant interim final regulation provided (33 C.F.R.

209.120 (d) (2) () (1976)): Freshwater wetlands’ means those

areas that are periodically inundated and that are normally char-

acterized by the prevalence of vegetation that requires saturated

soil conditions for growth and reproduction.” In relevant part, the

final regulation eliminated the words “periodically inundated” and

substituted “inundated or saturated by surface or ground water at

a frequency and duration sufficient to support * * * [aquatic vegeta-

tion]“ (33 C. F. R. 323.2(c)). See page 6, supra.

River, and Lake St. Clair) are not the cause of the

satyrated conditions that support the wetlands vegetation

four’ on Riverside’s property (id. at 25a).” Instead, the

district court found that the growth of the wetlands

vegetation was principally caused by saturation asso-

ciated with the type of soil found on the property—the

soil drains poorly, resulting in a high water table and

water on or near the surface (id. at 24a-25a). The

record reflects that Riverside’s property is part of a

larger undeveloped area that has exhibited the wetlands

characteristics of moisture and vegetation for decades.

See, e.g., J.A. 51-53, 58-60, 64-67; Pet. App. 23a-24a.

The environmentai functions of the area were described

by experts as providing habitat for muskrats and water-

fowl and furnishing food resources for fish in Lake St.

Clair. E. g., J. A. 41-42, 47, 62-63, 72, 75-76.

Having found that Riverside’s property is “normally

characterized by the prevalence of vegetation that re-

quires saturated soil conditions for growth and reproduc-

tion“ (33 C.F.R. 209.120 (d) (2) ( (1976)), the district

court separately considered the requirement of “periodic

inundation” found in the 1975 interim final regulation

(ibid.). The court had considerable difficulty with this

aspect of the regulation (which has since been eliminated

to avoid confusion), but ultimately concluded that “pe-

riodie“ required “more than five” floods (Pet. App. 31a)

and found that the elevation of 574.9 feet had been sur-

passed by flooding on six “occurrences” (some of several

years’ duration) in the last 80 years (id. at 30a). By

7 This finding was based on the district court’s conclusion that

there is no hydrologic connection between Riverside’s property and

the nearby water bodies (Pet. App. 32a-37a). In context, however,

it is clear that the finding refers to the absence of an underground

connection by which water flows from those water bodies to the

property. The court made no findings on the reverse question

whether surface water drains from the property to the water

bodies; the record suggests that it does because the property slopes

toward Black Creek. See J.A. 104, 114; DX 33.

adding half a foot to account for normal monthly fluetua-

tion, the court arrived at its conclusion that Riverside’s

property below the elevation of 575.5 feet was a “wet-

land” subject to the Corps’ jurisdiction (id. at 31a).

Riverside appealed. On motion of the United States,

the court of appeals remanded the case to the district

court for consideration of the effect of the Corps’ 1977

revised final regulations. District Judge Gilmore applied

the new regulations to the facts found by Judge Kennedy

and again concluded that the area was an adjacent wet-

land under the regulations. The court permanently en-

joined Riverside from filling without a permit. Pet. App.

42a-44a. Riverside appealed anew.

3. The court of appeals reversed, holding that River-

side’s property was not a “wetland” under the 1977 reg-

ulations and was not subject to the Corps’ jurisdiction

under the Clean Water Act (Pet. App. la-19a). The

court held that the Corps’ jurisdiction over “wetlands” is

limited to areas in which aquatic vegetation is directly

attributable to frequent flooding from adjacent navigable

waters. Applying this test, the court concluded that

Riverside’s property was not a “wetland” for jurisdic-

tional purposes because inundation by the periodic flood-

ing from adjacent water bodies had not been sufficiently

frequent to be the cause of the aquatic vegetation found

on the property. Pet. App. 10a-i2a.

The court of appeals initially characterized its “fre-

quent flooding” test a= an interpretation of the Corps’

revised definition of “wetlands” (33 C.F.R. 323.2 (e)).

The court stated (Pet. App. 10a):

The new regulation makes clear that it is the present

occurrence of inundation or flooding sufficient to sup-

port wetlands vegetation, not the mere presence of

vegetation from some other cause, that determines

whether a particular area is a wetland. Thus, as we

understand it, the presence of inundation on the

land “as it exists” now, sufficient to cause the growth

of aquatic vegetation, is necessary to satisfy the

wetlands definition. Neither inundation nor aquatic

vegetation would be sufficient, standing alone, to

bring a piece of land within the definition. Both

must be present, and the latter must be caused by

the former.

Although the court quoted a portion of the pertinent reg-

ulation at several points in its opinion (Pet. App. 10a,

lla, 15a), nowhere did it discuss the regulation’s ap-

plicability to areas characterized by a prevalence of

aquatic vegetation that is attributable in whole or in part

to saturated soil conditions or ground water (33 C. F. R.

323.2 (e)). Instead, the court held that the regulation re-

quires “frequent flooding by waters flowing from ‘naviga-

ble waters’ as defined in the Act” (Pet. App. 15a).

The court reasoned that its narrow interpretation of

the regulation was necessitated by what it perceived as

both statutory and constitutional constraints on the Corps’

jurisdiction. Pet. App. 18a-16a. Because the CWA ex-

tends jurisdiction to “waters of the United States,” the

court questioned whether Congress intended to regulate

“wetlands” at all. Id. at 18a (emphasis added). In addi-

tion to its view that Congress may not have intended to

extend jurisdiction over the property at issue, the court

reasoned that its narrow construction was required to

avoid the potential problem of an unconstitutional taking

(id. at 14a-15a).

The government petitioned for rehearing en banc. The

petition was denied, but the panel expanded its initial

opinion to make clear its view that the Clean Water Act

itself, in addition to the Corps’ regulation, does not au-

thorize federal jurisdiction over “wetlands” not created

by “frequent flooding” from adjacent navigable waters

(Pet. App. 20a-2la). The government’s interpretation

of the Clean Water Act, which is reflected in the Corps’

regulations, was rejected as “over broad and inconsistent

with the language of the Act in question” (id. at 2la).*

8 During the pendency of the appeal in this case, the Corps denied

Riverside’s application for an after-the-fact permit for a 10-acre

SUMMARY OF ARGUMENT

I. A. Under the Clean Water Act, 33 U.S.C. 1251

et seq., the United States Army Corps of Engineers was

given the responsibility of issuing permits for the dis-

charge of dredged-or-fill material into the “waters of the

United States.” 33 U.S.C. 1344 and 1362(7). The Corps

has issued jurisdictional regulations defining the “waters

of the United States” to include, inter alia, “wetlands”

that are adjacent to navigable water bodies and 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. 323.2(c). If a wetland area falls

within this regulatory assertion of jurisdiction, then the

landowner must apply for a Corps permit before engaging

in the discharge of dredged-or-fill material. The mere

assertion of regulatory jurisdiction does not, however,

mean that a permit will be denied. On the contrary, it

merely allows the Corps the opportunity to conduct a

site-specific evaluation of the landowner’s dredge-or-fill

proposal to ensure that the critical ecological functions

performed by wetlands are not unnecessarily destroyed.

area filled between May 26, 1976, and January 16, 1977. The after-

the-fact permit request was denied based on the Corps’ conclusion

that “the existing fill has had an adverse impact on the wetland

and its function as a flood-water storage area, water quality en-

hancement basin and fish and wildlife habitat.”

In addition to its request for after-the-fact approval of its

earlier fill, Riverside sought permission to fill 30.6 more acres.

The State of Michigan denied a state permit for this proposed fill.

Accordingly, the Corps also refused to approve the proposed work

because its regulations (see 33 C.F.R. 325.8(b)) provide that per-

mits will not be granted by District Engineers if a permit required

by state or local law has been denied. Riverside did not seek judi-

cial review of the Corps’ permit denials, and the court of appeals

did not address the subject, presumably because its ruling on the

scope of the Corps’ jurisdiction made it unnecessary for Riverside

to obtain any Corps permits.

Apparently unaware of the distinction between a

threshold jurisdictional determination and an actual de-

cision on a permit application, the court of appeals con-

cluded that the Corps’ interpretation of its jurisdiction

over “adjacent wetlands” would prevent landowners “from

using low lying land areas where water sometimes stands

and where vegetation requiring moist conditions grows”

(Pet. App. 20a). Unhappy with this prospect, the court

of appeals created its own test for wetlands jurisdiction,

holding that the Corps may assert Section 404 jurisdiction

only over those wetlands that exhibit aquatic vegetation

attributable to “frequent flooding” from adjacent lakes,

streams, or seas.

The lower court’s “frequent floodng” test is flatly in-

consistent with the intent of Congress and fails to accord

any deference to the agencies (in this case, the Corps and

the Environmental Protection Agency) entrusted with the

administration of the statute. Both as originally enacted

in 1972 and as amended in 1977, Congress made clear

that the purpose of the Clean Water Act was to promote

and maintain the integrity of the Nation’s waters by

controlling pollutant discharges at their source. Congress

intentionally abandoned its previous reliance on voncepts

of navigability and instead made water quality the touch-

stone of the statutory and regulatory program. More-

over, Congress repeatedly demonstrated its understanding

of the vital role played by wetlands in the maintenance

of water quality.

Of particular significance is the fact that Congress was

fully aware of the geographic reach of the Corps’ regula-

tory program under Section 404, which had generated

substantial controversy between 1972 and 1977. Con-

gress’s response to the controversy was to exempt certain

activities, such as normal farming activities, from the

reach of the statute. After extensive debate, however,

Congress refused to narrow the geographic reach of Sec-

tion 404 as implemented by the Corps’ regulations. Thus,

Congress clearly ratified the Corps’ interpretation of the

scope of its Section 404 jurisdiction. See, e.g., Bob Jones

University v. United States, 461 U.S. 574, 599-602

(1983). In these circumstances, it was error for the

court of appeals to disregard the legislative history of the

1977 amendments in favor of its own self-created “fre-

quent flooding” test for wetlands jurisdiction. The error

was all the more apparent in light of the fact that every

other circuit to address the issue has recognized that Con-

gress intended to exercise jurisdiction over the Nation’s

waters, including wetlands, to the full extent of its power

under the Commerce Clause.

B. Contrary to the court of appeals’ analysis, there-

fore, the only relevant constitutional provision is the Com-

merce Clause, and not the Fifth Amendment. The lower

court’s concern that a narrow reading of the Corps’ Sec-

tion 404 jurisdiction was required to avoid a “taking

problem” was misguided and premature. No “taking”

of private property arises from the mere assertion of

regulatory authority to require an application for a per-

mit. Moreover, even if a permit is denied, and a taking

has been established, no constitutional violation occurs un-

less just compensation is unavailable. The court of ap-

peals therefore erred in invalidating significant portions

of the Section 404 regulatory program in the absence of

any conclusion (which would have found no support in

the law in any event) that a landowner whose permit ap-

plication is denied may not bring an inverse condemna-

tion action.

II. In addition to holding that the Corps’ interpreta-

tion of Section 404 is inconsistent with the language of

the Clean Water Act, the court of appeals also held that

Riverside’s property is not a “wetland” within the mean-

ing of the Corps’ regulations. This ruling was plainly

inconsistent with the regulatory language. The court’s

“frequent flooding” test, which it purported to derive

from the regulations, totally ignores the fact that the reg-

ulations also assert jurisdiction over areas that support

a prevalence of wetlands vegetation attributable to

ground water or saturated soil conditions. The court also

ignored the fact that the regulations are consistent with

congressional intent, reflect good wetlands science, and

promote ease of administration for landowners and regu-

lators alike.

In light of Congress’s demonstrated concern for the

promotion of enhanced water quality, any jurisdictional

test that focuses on the source of the waters creating

wetlands vegetation makes no sense. Wetlands perform

the same important functions whether they are fed by

“frequent flooding,” ground water, surface run-off, rain-

water, or types of soil that retain moisture. The Corps’

regulations recognize this fact by asserting jurisdiction

over areas that are inundated or saturated at a frequency

and duration sufficient to support wetlands vegetation.

This regulatory definition of wetlands not only accords

with congressional intent, but it reflects good science.

Although there are many different types of wetlands, the

single feature that wetlands have in common is exposure

to water. The source of that exposure, however, is totally

irrelevant to the valuable functions that wetlands per-

form.

In addition, the Corps’ definition of wetlands is ad-

ministratively sound. If the Corps is to fulfill Congress s

intent to protect ecologically important wetlands, then

its threshold jurisdiction must be construed broadly. The

determination whether particular wetlands should be sub-

ject to restrictions on development by virtue of Section

404 can only be made on a case-by-case basis, after the

Corps has had the opportunity to evaluate the environ-

mental impacts of the proposed project and to weigh

those impacts against the public benefits of the project.

The court of appeals’ crabbed approach to the threshold

jurisdictional issue wholly pretermits the permit review

process for vast areas of wetlands and will inevitably

lead to water pollution and destruction of wetlands that

would not otherwise occur.

Finally, the Corps’ regulatory definition of wetlands

jurisdiction has the virtue of ease of application for land-

owners and regulators alike. By focusing primarily on

vegetation, the threshold jurisdictional inquiry usually

can be answered through visual inspection. Under the

court of appeals’ “frequent flooding” test, on the other

hand, time-consuming and expensive hydrologic studies

would be required to determine the existence, the fre-

quency, and the direction of the flow of water, and then

to evaluate its causal relationship to aquatic vegetation.

Requiring landowners to partake in such a complex in-

quiry as a threshold matter undoubtedly would jeopardize

public cooperation with the Corps’ program.

III. The southern portion of Riverside’s property is a

wetland within the meaning of the Clean Water Act and

the Corps’ implementing regulations. Expert witnesses

for both parties agreed that the property exhibits a prev-

alence of wetlands vegetation, and the record demon-

strates a total absence of upland species of vegetation.

In addition, the property is saturated at a frequency and

duration sufficient to support the wetlands vegetation

found there. The soil on the property drains poorly and

has a high water table, with water on or near the sur-

face most of the time. Riverside’s property also is “ad-

jacent” to a navigable waterway within the meaning of

33 C. F. R. 323.2(d) because it is contiguous to Black

Creek, a navigable waterway and tributary of Lake St.

Clair. Finally, there is no dispute that Riverside’s prop-

erty performs precisely the type of valuable ecological

functions that Congress intended to protect when it en-

acted Section 404. Accordingly, the judgment of the

court of appeals holding that Riverside need not apply for

a Section 404 permit should be reversed.

ARGUMENT

At the outset, it should be clearly understood what is

involved in this case and what is not. The only issue

before the Court is whether the Clean Water Act author-

izes the Corps of Engineers to assert regulatory jurisdic-

tion over those wetlands whose “aquatic” character is

attributable to causes other than “frequent flooding”

from navigable lakes, streams, or seas. The court of ap-

peals failed to appreciate that this threshold jurisdic-

tional inquiry is wholly distinct from the question whether

a permit to discharge dredged-or-fill material should be

granted in a particular case. Recognition of jurisdiction

does nothing more than allow the Corps to consider

whether the wetlands values that Congress sought to pro-

tect would be jeopardized by a particular project; it

does not in and of itself mean that any and all activity

on a particular parcel of land will be prohibited. See

pages 30-31, 40-43, infra.

The position of the United States, as set forth in the

Corps’ 1977 regulations, is that jurisdiction over wet-

lands—as distinct from the decision to grant or deny a

permit—is to be determined by geographic proximity

(“adjacency”) to a navigable water body, coupled with

the presence of saturated soil conditions sufficient to sup-

port a prevalence of wetlands vegetation. 33 C.F.R. 323.2

(ec) and (d).* The court of appeals rejected this position

as a matter of law, concluding that it was “inconsistent

with the language of the Act” (Pet. App. 21a). As a

result, the court of appeals could not and did not con-

sider whether the Corps should have issued a permit for

the filling of Riverside’s property. Instead, by adopting

a crabbed interpretation of the Corps’ threshold jurisdic-

*In this brief we address only the scope of the Corps’ jurisdic-

tion under the CWA over wetlands that are adjacent to traditional

navigable water bodies and their tributaries. The Corps’ regula-

tions also assert jurisdiction over certain “isolated” wetlands (see

33 C.F.R. 323.2(a)(3)), but Riverside’s property does not fall

within that category. See pages 29 note 20, 46-47 & note 40, infra.

tion even to consider the effect on wetlands of particular

dredge-or-fill projects, the court of appeals wholly pre-

termitted the permit review process (see pages 40-43,

infra) that Congress intended as the mechanism to en-

sure that wetlands are not destroyed without a prior

determination of the ecological importance of the par-

ticular wetland and the impacts of the proposed activity

on that wetland. As we demonstrate below, the court of

appeals was able to arrive at this result only by ignoring

well-settled principles of statutory construction and by

substituting its judgment for that of the agencies charged

with the administration of the statute.

I. THE COURT OF APPEALS IGNORED WELL-

ESTABLISHED RULES OF STATUTORY CON-

STRUCTION IN INTERPRETING THE SCOPE OF

SECTION 404 WETLANDS JURISDICTION

The court of appeals’ exclusive reliance on the statu-

tory language, with its concomitant failure to examine

the Act’s legislative history, led it to an interpretation of

the statute that is flatly inconsistent with congressional

intent. The court of appeals observed (Pet. App. 13a)

that Congress “may, indeed, have meant to extend the

protections of the Act beyond the straightforward” statu-

‘ory definition of “navigable waters” but concluded that

it was “not clear” from: the statute how far the Corps’ ju-

risdiction extends in the case of wetlands." Having found

a lack of clarity in the statutory language, it was mani-

festly inappropriate for the court of appeals to ignore the

legislative history. With specific reference to the CWA,

this Court has held that, “however clear the words may

appear on ‘superficial examination.“ courts may not ig-

The court of appeals’ assertion (Pet. App. 13a) that the lan-

guage of the statute makes no reference to “wetlands” is inac-

curate. Section 404(g)(1) refers to “adjacent” “wetlands” as

regulated waters. 33 U.S.C. 1344(g)(1). Thus, the statutory lan-

guage itself casts doubt on the court of appeals’ conclusion that

the adjacent wetlands at issue in this case are not “waters of the

United States.”

nore the legislative history in discerning the meaning of

a statutory term. Train v. Colorado Public Interest Re-

search Group, Inc., 426 US. 1, 10 (1976) (quoting

United States v. American Trucking Ass’ns, 310 U.S.

534, 543-544 (1940)). Thus, the court of appeals erred

in resting its decision solely on the bald conclusion that

the Corps’ interpretation of the CWA was “inconsistent

with the language of the Act” (Pet. App. 21a. Though

the statutory term “waters of the United States” may

at first blush be deceiving, even a cursory review of the

legislative history of the CWA, both as it was passed in

1972 and as amended in 1977, quickly and conclusively

dispels any notion that Congress intended the Section 404

program to be limited by the traditional concepts of

navigability resurrected by the court of appeals. See

pages 19-27, infra.

The court of appeals compounded its analytic error by

refusing to accord any deference to the administrative

interpretation of the statute.“ This Court has repeatedly

emphasized that reviewing courts are precluded from sub-

stituting their judgment for that of an agency, particu-

larly with respect to technical matters or to a determina-

The fact that the Corps initially took a narrower view of its

jurisdiction under Section 404 is of no moment in this case. The

Attorney Genera! has determined that the “ultimate administrative

authority to determine the reach of the ‘navigable waters’ for the

purposes of § 404” resides with EPA. 43 Op. Att'y Gen. No. 15,

at 1 (Sept. 5, 1979). EPA has consistently supported a broad

interpretation of the scope of Clean Water Act jurisdiction (see

pages 4-5 & note 3, supra). Shortly after the Act was passed in

1972, EPA established a policy of preserving wetland ecosystems in

the administration of its regulatory activities and grant programs.

The agency took this action because t he Nation's wetlands * * *

are a unique, valuable, irreplaceable water resource” (38 Fed. Reg.

10834 1973 With particular regard to the type of wetland at

issue in this case, EPA recognized that ibid.

Fresh-water wetlands support the adjacent or downstream

aquatic ecosystem in addition to the complex web of life that

has developed within the wetland environment. The relation-

ship of the fresh-water wetland to the subsurface environment

is symbiotic, intricate, and fragile.

tion, including jurisdiction, that has been assigned pri-

marily to the agency administering a statute. See, e. g.,

Chemical Manufacturers Ass’n v. NRDC, No. 83-1013

(Feb. 27, 1985), slip op. 8-9; Chevron U.S.A. Inc. v.

NRDC, No. 82-1005 (June 25, 1984), slip op. 5-6; EJ.

du Pont de Nemours & Co. v. Train, 430 U.S. 112, 134-

135 (1977). Congress delegated substantial authority to

EPA and, with respect to permits for the discharge of

dredged-or-fill material, to the Corps for implementa-

tion of the Clean Water Act. See, e. g., 33 U.S.C. 1311,

1342, and 1344. In the absence of an explicit statutory

definition of covered wetlands, those agencies were given

implicit authority to determine administratively the pre

cise scope of wetlands jurisdiction. See Chevron U.S.A.

Ine. v. NRDC, slip op. 5-6. Since the agencies had done

so, the court of appeals was precluded from substituting

its own construction of the statute so long as the adminis-

trative interpretation was a reasonable one.

Had the court below consulted the legislative history

and followed these principles of judicial review, it would

have recognized that the Corps’ interpretation of its juris-

diction under Section 404 is a reasonable construction of

the statute that should have been upheld.

Il. THE CORPS’ ASSERTION OF SECTION 404 JURIS-

DICTION TO REGULATE DISCHARGES OF

DREGED OR FILL MATERIAL INTO WETLANDS

ADJACENT TO STREAMS, LAKES, OR SEAS

COMPORTS WITH CONGRESSIONAL INTENT

A. The Act’s Objectives And Legislative History Dem-

onstrate That Congress Intended To Regulate Dis-

charges Of Dredged Or Fill Material Into “Wet-

lands” Beyond The Limits Of Traditional Naviga-

ble Waters

1. In 1972, Congress substantially rewrote the federal

law governing water pollution in order to “restore and

maintain the chemical, physical, and biological integrity

of the Nation’s waters.” 33 U.S.C. 1251(a). The in-

tegrity” of the Nation’s waters is a broad concept—‘“a

condition in which the natural structure and function of

ecosystems is maintained. H.R. Rep. 92-911, 92d Cong.,

2d Sess. 76 (1972). Congress’s objective was to achieve

that level of water quality that provides for the “protec-

tion and propagation of fish, shellfish, and wildlife and

provides for recreation in and on the water” (33 U.S.C.

12510 % % The strategy adopted to achieve these

goals was to control the discharge of pollutants at their

source. See generally EPA v. California ex rel. State

Water Resources Control Board, 426 U.S. 200, 204-205

(1976). Congress recognized that restricting Clean Wa-

ter Act jurisdiction to those relatively few waterways

that support navigation would make it impossible to

achieve the objectives of the Act. The Senate Report ex-

plained S. Rep. 92-414, 92d Cong., Ist Sess. 77 (1971)):

Water moves in hydrologic cycles and it is essential

that discharge of pollutants be controlled at the

source.

Accordingly, the statute prohibits the unauthorized dis-

charge of any pollutant—including dredged or fill mate

rial—into “navigable waters,” defined as the “waters of

the United States, including the territorial seas.” 33

U.S. C. 131l(a), 1344, 1362(6). 1362(7). Congress’s

use of the term “waters of the United States” was a

deliberate rejection of the more limited concept of tradi-

tional navigable waters, in recognition of the fact that

that narrow focus was ill-suited to the Act’s water qual-

ity goals. The House Report stated (H.R. Rep. 92-911,

supra, at 131):

One term the Committee was reluctant to define was

“navigable waters.” The reluctance was based on

the fear that any interpretation would be read nar-

rowly. However, this is not the Committee’s intent.

To alleviate its fears, Congress deleted the word “naviga-

dle from the Act’s definition of “navigable waters.”

The Conference Committee explained that (118 Cong.

Rec. 33699 (1972) (emphasis added) ):

The Conferees fully intend that the term “navigable

waters” be given the broadest possible constitutional

interpretation unencumbered by agency determina-

tions which have been made or may be made for ad-

ministrative purposes.

Congress thus clearly understood that traditional con-

cepts of navigability had nothing to do with combatting

water pollution and that the Act’s purposes require a

scientific and functional interpretation of “waters of the

United States” directly tied to water quality concerns.“

Moreover, Congress intended to assert federal jurisdic-

tion over the sources of pollutant discharges into the hy-

drologic cycle to the maximum extent permissible under

the Commerce Clause in order to improve and maintain

water quality. In other words, the only constraint on

regulatory jurisdiction intended by Congress was the

limit of the Commerce Clause power to control water

pollution.“

12 The criteria that the Corps must consider when evaluating

permit applications for dredged or fill materials exemplify Con-

gress’s water quality concerns. Section 404(b)(1) of the Act,

33 U.S.C. 1344(b) (1), directs the Corps to evaluate permit applica-

tions by applying guidelines developed by EPA in conjunction with

the Corps. EPA’s guidelines (published at 40 C. F. R. Pt. 230) must

take into account, inter alia, the effect of discharges of dredged

or fill material on fish, shellfish, and wildlife; effects on recrea-

tional, economic, and aesthetic values; and changes in aquatic

ecosystem diversity, productivity, and stability. Sections 403(c) (1)

and 404(b) (1), 33 U.S.C. 134306 (1) and 1344(b) (1). In addition,

EPA may veto or restrict the use of any site for the disposal of

dredged or fill material when it determines that a discharge “will

have an unacceptable adverse effect on municipal water supplies,

shellfish beds and fishery areas (including spawning and breeding

areas), wildlife, or recreational areas.” Section 404(c), 33 U.S.C.

1344(c). Thus, Congress sought through the permit requirement

and evaluation process to prevent unnecessary discharges causing

significant adverse impacts on water quality.

13 Historically, federal regulatory involvement in water-related

activities focused primarily on the navigability of waterways, but

2. Whatever doubt may have existed concerning the

intended reach of the CWA over wetlands was completely

laid to rest by the 1977 amendments to the statute. The

1975 interim final regulations promulgated by the Corps

in response to NRDC v. Callaway, supra, aroused con-

siderable congressional interest. Hearings on the subject

of Section 404 jurisdiction were held in both the House

and the Senate. An amendment to limit the geographic

reach of Section 404 to traditional navigable waters end

their adjacent wetlands was passed by the House, 123

Cong. Rec. 10434 (1977), defeated on the floor of the

Senate, 123 Cong. Rec. 26728 (1977), and eliminated by

the Conference Committee, H.R. Conf. Rep. 95-830, 95th

Cong., Ist Sess. 97-105 (1977). Congress rejected the

proposal to limit the geographic reach of Section 404 be-

cause it wanted a permit system with “no gaps” in its

it has long been recognized that other water-related interests can

be addressed pursuant to the Commerce Clause, including, inter

alia, ecological concerns. See, e.g., United States v. Republic Steel

Corp., 362 U.S. 482 (1960); United States v. Appalachian Electric

Power Co., 311 U.S. 377, 426 (1940); Zabel v. Tabb, 430 F.2d 199,

203-204 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971). Regula-

tion of wetlands for the purpose of addressing environmental prob-

lems is undoubtedly within Congress’s power under the Commerce

Clause. See Hodel v. Virginia Surface Mining & Reclamation Ass'n,

452 U.S. 264, 282 (1981); United States v. Byrd, 609 F.2d 1204,

1209-1210 (7th Cir. 1979). Cf. Utah v. Marsh. 740 F.2d 799, 804

(10th Cir. 1984) (CWA regulation of an intrastate lake that affects

interstate commerce is constitutional); United States v. Ashland

Oil & Transportation Co., 504 F.2d 1317, 1328-1329 (6th Cir.

1974) (CWA jurisdiction over non-navigable tributaries of naviga-

ble streams is constitutional)

14 Section 404 of the Federal Water Pollution Control Act Amend-

ments of 1972: Hearings Before the Senate Comm. on Pubiic

Works, 94th Cong., 2d Sess. (1976); Development of New Regula-

tions by the Corps of Engineers, Implementing Section 404 of the

Federal Water Pollution Control Act Concerning Permits for Dis-

posal of Dredge or Fill Material: Hearings Before the Subcomm.

on Water Resources of the House Comm. on Public Works and

Transportation, 94th Cong., Ist Sess. (1975).

protective sweep. 123 Cong. Rec. 26707 (1977) (remarks

of Sen. Randolph).

Rather than alter the geographic reach of Section 404,

Congress amended the statute by exempting certain ac-

tivities—most notably certain agricultural and silvicul-

tural activities—from Section 404’s permit requirements.

See 33 U.S.C. 1344 (f).“ The Senate Report, which ex-

plained the approach ultimately adopted by the Confer-

ence Committee, demonstrates that the decision to leave

the geographic scope of Section 404 intact was an affirma-

tive approval of the administrative interpretation of the

term “waters of the United States.” The report stated

(S. Rep. 95-370, 95th Cong., Ist Sess. 75 (1977) ):

Initial consideration of the section 404 controversy

stimulated discussion on the extent of the waters

in which discharges of dredged or fill material will

be regulated.

The 1972 Federal Water Pollution Control Act

exercised comprehensive jurisdiction over the Na-

tion’s waters to control pollution to the fullest con-

stitutional extent.

To limit the jurisdiction of the Federal Water Pol-

lution Control Act with reference to discharges o?

the pollutants of dredged or fill material would er p-

ple efforts to achieve the act’s objectives.

The committee amendment does not redefine navi-

gable waters. Instead, the committee amendment in-

tends to assure continued protection of all the Na-

tion’s waters, but allows States to assume the pri-

* 1 Congress also added several other provisions to Section 404.

including provisions designed to streamline the permit process and

to allow states to administer portions of the program. Altogether,

16 new subsections were added to Section 404. Those amendments

demonstrate that Congress thoroughly reexamined Section 404

when it passed the 1977 amendments. In these circumstances,

Congress's decision not to alter the geographic reach of the section

takes on added significance. See, ., Merrill Lynch, Pierce, Fenner

& Smith, Inc. v. Curran, 456 U.S. 353, 381-382 (1982).

mary responsibility for protecting those lakes, rivers,

streams, swamps, marshes, and other portions of the

navigable waters outside the corps program in the

so-called phase I waters. Under the committee

amendment, the corps will continue to administer the

section 404 permit program in all navigable waters

for a discharge of dredge or fill material until the

approval of a State program for phase 2 and 3

waters. '**!

Other evidence abounds to support the conclusion that

when Congress rejected the attempt to limit the geo-

graphic reach of Section 404, it was well aware that the

Corps’ 1977 regulations asserted jurisdiction over all

adjacent wetlands and some isolated wetlands. For ex-

ample, Senator Baker stated (123 Cong. Rec. 26718

(1977) ):

Interim final regulations were promulgated by the

corps [on] July 25, 1975. * * *

Together the regulations and [EPA] guidelines

established a management program that focused the

decisionmaking process on significant threats to

aquatic areas while avoiding unnecessary regulation

of minor activities. On July 19, 1977, the corps re-

vised its regulations to further streamline the pro-

gram and correct several misunderstandings. * * *

Continuation of the comprehensive coverage of

this program is essential for the protection of the

aquatic environment. The once seemingly separable

types of aquatic systems are, we now know, inter-

related and interdependent. We cannot expect to

preserve the remaining qualities of our water re-

sources without providing appropriate protection for

the entire resource.

16 This passage is particularly significant because it demonstrates

beyond peradventure Congress’s understanding of the Corps’

phased-in expansion of Section 404 jurisdiction (see page 5 &

note 4, supra). Instead of rejecting that approach, Congress

specifically incorporated the Corps’ regulatory scheme into the

amendment authorizing partial delegation of the Section 404 permit

program to the States. Section 404(g), 38 U.S.C. 1344(g).

Earlier jurisdictional approaches under the [Riv-

ers and Harbors Act] established artificial and often

arbitrary boundaries

See also 123 Cong. Rec. 38967-38968 (1977) (remarks

of Rep. Roberts). Moreover, Congress specifically re-

ferred to “wetlands adjacent” to traditional navigable

waters as regulated waters in one of the amended Sec-

tion 404 provisions, 33 U.S.C. 1344(g)(1). Congress’s

use of this regulatory term of art was an affirmative

endorsement of the Corps’ interpretation of the scope of

its jurisdiction under Section 404.

This legislative history leaves no room for doubt that

Congress intended adjacent wetlands to be treated as

“waters of the United States.” The proceedings lead-

ing to the 1977 amendments to the CWA offer a textbook

case of congressional approval of administrative action.

See Bob Jones University v. United States, 461 U.S. 574,

599-602 (1983); Red Lion Broadcasting Co. v. FCC, 395

U.S. 367, 380-381 (1969).

Furthermore, the legislative history of the 1977 amend-

ments clearly demonstrates Congress’s continuing con-

cern with water quality, its understanding of the sig-

nificant relationship between wetlands and water quality,

and its intention to regulate wetlands under the Section

404 program to promote enhanced water quality.“ In

It also bears noting that Congress was fully aware that the

dredged materia! and fill material with which Section 404 is con-

cerned is not harmless “clean dirt.” As Senator Baker noted (123

Cong. Rec. 26718 (1977)), dredged and fill materials often con-

tain a wide range of pollutants, including toxic substances.” See

also S. Rep. 92-414, supra, 74-75; 123 Cong. Rec. 26701, 26713-

26714, 26720-26721 (1977) (remarks of Sens. Stafford, Hart, and

Muskie) ; 123 Cong. Rec. 6792-6794 (1977) (statement of Khristine

L. Hall, Natural Resources Defense Council, Inc.). And even in

the case of fill material that is not contaminated by toxic pollutants,

its mere placement into wetlands “can physically destroy essential

parts of the aquatic system, including swamps, marshes, submerged

grass flats and shellfish beds.” 123 Cong. Rec. 26718 (1977) (re-

marks of Sen. Baker).

debating the proposal to restrict Section 404 jurisdic-

tion, it was noted that more than half of the Nation’s

original wetlands already have been lost by filling, dredg-

ing, or draining and that the remaining areas are dis-

appearing at a rate of 300,000 acres per year. 123 Cong.

Rec. 26701, 26717 (1977) (remarks of Sens. Stafford

and Chaffee). Congress thought it essential to put a

stop to this trend in order to achieve the water quality

goals of the CWA. For example, Senator Baker, a spon-

sor of the 1977 amendments, stated (123 Cong. Rec.

26718-26719 (1977)):

[P]rotection of water quality must encompass the

protection of the interior wetlands and smaller

streams.

We should be mindful of the fact that when these

(wetland) areas are polluted out of existence, we

will have lost the very valuable free service of na-

ture; and if toxic-laden dredged or fill material is

discharged into wetlands, we risk poisoning the very

foundation of our aquatic system.

Senator Muskie, also one of the primary sponsors of

the Act, expressed similar views (123 Cong. Rec. 26697

(1977) ):

There is no question that the systematic destruction

of the Nation’s wetlands is causing serious, perma-

nent ecological damage. The wetlands and bays, es-

tuaries and deltas are the Nation’s most biologically

active areas. They represent a principal source of

food supply. They are the spawning grounds for

much of the fish and shellfish which populate the

oceans, 14 They pe A 12 for numerous upland

game 5 provide nesting areas for a

myriad of species of birds and wildlife.

unregulated destructi these areas is a

and which imple-

has attempted to achieve.

See also 123 Cong. Rec. 38994-38996 (1977) (remarks of

Reps. Ambro, Lehman, and Dingell); 123 Cong. Rec.

26701-26702, 26713, 26716-26717 (1977) (remarks of

Sens. Stafford, Hart, and Chaffee); H.R. Rep. 95-139,

95th Cong., Ist Sess. (1977) (additional views of Reps.

Edgar and Myers)“

In sum, the court of appeals’ conclusion that it is “not

clear” (Pet. App. 13a) that Congress wanted the Corps

to exercise the broadest possible jurisdiction over the

Nation’s wetlands is simply untenable when examined in

light of the legislative history.

B. Extensive Judicial Authority Supports A Broad

Interpretation Of Section 104 Jurisdiction

The court of appeals seemingly approached the issue

before it as though it were a question of first impression.

In fact, it is not, and, what is more, every other circuit

to address the matter (either in the context of Section

404 or of other sections of the CWA that apply to “waters

of the United States”) has concluded that Congress in-

tended in the CWA to assert federal jurisdiction over

the Nation’s waters to the full extent of its constitu-

tional power, not limited by traditional concepts of navi-

gability, and that the Corps’ implementing regulations

faithfully reflect that intent. See, e.g., United States v.

18 Finally, Congress also was concerned about the economic im-

pact of the loss of wetland areas on commercial fish harvests and

water treatment and flood control costs. See, e.g., 123 Cong. Rec.

26716 (1977) (remarks of Sen. Chaffee); id. at 26718 (remarks

of Sen. Baker): id. at 38994 (remarks of Rep. Lehman). In

addition to the estimate that wetlands provide $140 billion worth

of water purification and flood control services (see page 3, supra),

specific illustrations of the economic impact of wetlands destruc-

tion were cited. In the early 1960s, for example, a channelization

project on the Kissimmee River in Florida eliminated 45.000 acres

of flood plain marshes. The unexpected result of the project was

a “gross deterioration of water quality in the Kissimmee River

and in Lake Okeechobee,” into which the river flowed. To undo

this damage, “it is going to cost a lot more money.” 123 Cong.

Rec. 26717 (1977) (remarks of Sen. Chaffee).

Huebner, 752 F.2d 1235, 1239, 1240-1241 & n.9 (7th

Cir. 1985) ; Utah v. Marsh, 740 F.2d 799, 802-804 (10th

Cir. 1984) ; Avoyelles Sportsmen's League, Inc. v. Marsh,

715 F.2d 897, 914-916 (5th Cir. 1983); United States v.

Tilton, 705 F.2d 429, 431 (11th Cir. 1983) ; United States

v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir.

1979) ; United States v. Byrd, 609 F.2d 1204, 1209-1211

(7th Cir. 1979); Leslie Salt Co. v. Froehike, 578 F.2d

742, 754-756 (9th Cir. 1978); ef. Consolidation Coal Co.

v. Costle, 604 F.2d 239, 243, (4th Cir. 1979).”

These courts have all recognized that Congress’s pur-

poses, described at pages 19-27, supra, would be severely

frustrated by an interpretation of “waters of the United

States” that excluded areas, including wetlands, the de-

struction or pollution of which could threaten the more

traditional waters to which the court below confined its

concern. In contrast to the admittedly “narrow interpre-

tation” of wetlands jurisdiction adopted by the court

below (Pet. App. 13a), these courts have accorded Sec-

tion 404 the broad reach intended by Congress in order

to accomplish the Act’s goal of controlling water pollu-

tion at its source. Repeatedly, courts have rested their

interpretation of the scope of “wetlands” jurisdiction on

the understanding that Congress intended to exercise its

1 But see United States v. City of Fort Pierre, 747 F.2d 464

(8th Cir. 1984). There, the court of appeals held that the Corps’

jurisdiction did not extend to an area falling within the literal

language of the Corps’ “wetlands” definition because the area’s

wetland characteristics were the undisputed by-product of the

Corps’ dredging activities and the area was polluted and devoid of

any value for fish, wildlife, or recreation. The court emphasized,

however, that its conclusion turned on “peculiar facts and unique

circumstances,” and it did “not question the Corps’ broad, plenary

authority to protect, maintain, and restore our Nation’s wetlands”

(id. at 465-466). The court also noted that (when determining

whether the Corps’ jurisdiction over our Nation’s wetlands extends

to a particular area, a court must bear in mind Congress’ intent

to extend this jurisdiction to the full extent permissible under the

Constitution” (id. at 465).

regulatory powers to the maximum extent permitted by

the Commerce Clause. See, e. g., Avoyelles Sportsmen's

League, Inc. v. Marsh, 715 F.2d at 916 n.33; United

States v. Tilton, 705 F.2d at 431; United States v. Byrd,

609 F.2d at 1209-1211; United States v. Holland, 373

F. Supp. at 668-676.

For example, in United States v. Byrd, 609 F.2d at

1210, the court held that the Corps’ assertion of Section

404 jurisdiction over wetlands adjacent to an intrastate

lake was a constitutional exercise of power, consistent

with congressional intent, because “filling activities, al-

though they are local, have the potential for exerting a

substantial economic effect on interstate commerce by an

easily traced chain of causation.” The court recognized

that the effect of such localized filling activities would

be to degrade the water quality of the lake they adjoined.

Ibid. That degradation, in turn, would affect interstate

commerce through its impact on the lake’s value for

recreation, fish, and wildlife. Ibid. See also Utah v.

Marsh, 740 F.2d at 803-804.”

In Hodel v. Virginia Surface Mining & Reclamation

Ass n, 452 U.S. 264, 282 & n.21 (1981), this Court, citing

Byrd and similar cases with approval, endorsed the same

Commerce Clause analysis: “{We] agree with the lower

federal courts that have uniformly found the power con-

ferred by the Commerce Clause broad enough to permit

congressional regulation of activities causing air or water

pollution, or other environmental hazards that may have

Under the Corps’ regulations, 33 C. F. R. 323.2(a)(3), a pre-

requisite to jurisdiction over an intrastate lake or wetland such as

that involved in Byrd is a specific finding that its destruction or

degradation could affect interstate or foreign commerce. Where,

as here, the water body to which a wetland is adjacent is an inter-

state water or the tributary of an interstate water, no such show-

ing is required. See 42 Fed. Reg. 37127-37128 (1977). The portion

of Riverside’s property at issue in this litigation (see pages 46-47

& note 40, infra) is adjacent to Black Creek, a navigable water and

primary tributary of Lake St. Clair, an international boundary

water linking the Great Lakes Huron and Erie.

effects in more than one State.” The reasoning of the

court below is, therefore, fundamentally at odds with

the analytical approach to which all other courts have

subscribed. The court below made no attempt to tie its

self-created “frequent flooding” limitation to the goals

and legislative history of the Act and seemingly rejected

the Commerce Clause as an inadequate “limiting prin-

ciple” (Pet. App. 2la). Contrary to the assumption

implicit in the court of appeals’ “frequent flooding” test,

federal jurisdiction over wetlands is not predicated on

the physical creation of wetlands by navigable water

bodies. Rather, the ecological and environmental role

of wetlands in the hydrologic cycle is the touchstone for

federal jurisdiction.

C. The Fifth Amendment Does Not Require A Narrow

Construction Of Section 404

The court of appeals seriously erred in concluding that

a narrow interpretation of Section 404 wetlands juris-

diction is required by the Just Compensation Clause

of the Fifth Amendment. The fundamental flaw in the

court’s “taking” analysis was its erroneous assumption

that the mere assertion of Section 404 jurisdiction

amounts to the prohibition of “any development or change

of such property.” Pet. App. 14a. In fact, however, the

scope of Section 404 jurisdiction determines nothing more

than whether the owner of a wetland must obtain a per-

mit before discharging pollutants onto his property.

Moreover, the statute and the implementing regulations

expressly contemplate the granting of permits in appro-

priate circumstances, see 33 U.S.C. 1344(b); 33 C.F.R.

Pts. 320, 323; 40 C.F.R. Pt. 230, and, even if a permit

is denied, it does not follow that all economically viable

uses of the property will be foreclosed. Thus, a “taking”

claim based only on a recognition of wetlands jurisdiction

is altogether premature. See Avoyelles Sportsmen’s

League, Inc. v. Marsh, 715 F.2d at 927; United States

v. Byrd, 609 F.2d at 1211; ef. Hodel v. Virginia Surface

Mining & Reclamation Ass’n, 452 U.S. at 295-296.

A “taking” of private property cannot arise from the

mere assertion of regulatory authority to require an

application for a permit. Moreover, even if a permit is

denied, and a taking has been established, no constitu-

tional violation occurs unless just compensation is un-

available. See, e.g., Ruckelshaus v. Monsanto Co., No.

83-196 (June 26, 1984), slip op. 27-28; Hodel v. Virginia

Surface Mining & Reclamation Ass’n, 452 U.S. at 297

n.40; Regional Rail Reorganization Act Cases, 419 U.S.

102, 127, 149 (1974); Hurley v. Kincaid, 285 U.S. 95,

104 (1932). Thus, the court of appeals clearly erred in

invalidating significant portions of the Section 404 regu-

latory program in the absence of any conclusion (which

would have found no support in the law in any event)

that a landowner whose permit application is denied may

not bring an inverse condemnation action.”

The sole authority for the court of appeals’ “taking” analysis,

Kaiser Aetna v. United States, 444 U.S. 164 (1979) (Pet. App.

14a-15a), nowhere suggests that a narrow view of federal regula-

tory jurisdiction is required to avoid a taking “problem.” In fact,

Kaiser Aetna supports the opposite conclusion. There, this Court

explicitly acknowledged that a privately owned lagoon converted

by its owners into a marina was subject to federal regulatory

jurisdiction. 444 U.S. at 174, 179. It was only the government's

attempt to require the owners to provide the public with free

access to the lagoon in the unique factual circumstances of that

case that amounted to a “taking” for which compensation would be

due. The Court noted that the access requirement would have

deprived the owners of “the ‘right to exclude,’ so universally held

to be a fundamental element of the property right” (id. at 179-180

(footnote omitted)). Subsequently, the Court refused to apply

Kaiser Aetna to a land use regulation that, like the permit require-

ments of the Clean Water Act, did not extinguish any “fundamental

attribute of ownership.” Agins v. City of Tiburon, 447 U.S. 255,

262 (1980).

22 Of course, a landowner also may obtain judicial review, pur-

suant to the Administrative Procedure Act, 5 U.S.C. 702, of a

Corps decision to deny a permit application. See, ¢.g., Buttrey v.

United States, 690 F.2d 1170, 1183 (5th Cir. 1982), cert. denied.

Finally, the taking analysis in any particular case is

fundamentally factual. See, e. g., Hodel v. Virginia Sur-

face Mining & Reclamation Ass'n, 452 US. at 295;

Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979).

In a Section 404 case, for example, the court would have

to determine, inter alia, whether denial of a permit de-

prived the landowner of all economically viable uses of

his land. See, ¢.g., Deltona Corp. v. United States, 657

F.2d 1184, 1191-1193 (Ct. Cl. 1981), cert. denied, 455

U.S. 1017 (1982). The court of appeals conducted no

such inquiry in this case, and thus its taking concerns

were wholly speculative.”

In sum, the only constitutional provision relevant to

this case is the Commerce Clause, not the Fifth Amend-

ment. Congress’s power to regulate wetlands emanates

from the Commerce Clause because of the functional re-

lationship between wetlands and the environmental goals

of the Clean Water Act. The benefits that wetlands pro-

vide for water quality and management, and the con-

comitant negative impacts resulting from the dumping

of fill and other pollutants into wetlands, leave no doubt

that the exercise of Section 404 jurisdiction over “adja-

cent wetlands” is well within Congress’s power.”

461 U.S. 927 (1983); Deltona Corp. v. Alexander, 682 F.2d 888

(11th Cir. 1982).

As noted (see note 8, supra), Riverside applied for and was

denied a permit while this case was pending in the court of appeals.

But the court of appeals did not decide whether the permit denial

was proper or whether it effected a taking in the circumstances of

this case, nor could the court have considered these questions in-

asmuch as Riverside never challenged the denial of the permit.

24 The Commerce power, although it encompasses the protection

and regulation of interstate navigation, is not, of course, limited

to navigable waters or even to activities that affect such waters.

Thus, Section 404 is not constitutionally restricted to what would

be a permissible exercise of the federal navigation servitude. See

Kaiser-Aetna v. United States, 444 U.S. at 173-180.

III. THE CORPS’ REGULATORY IMPLEMENTATION

OF ITS JURISDICTION UNDER SECTION 404 IS

BASED ON SOUND LEGAL, SCIENTIFIC, AND

ADMINISTRATIVE CONSIDERATIONS

In addition to holding that the Corps’ interpretation of

the statute was “inconsistent with the language of the

Act” (Pet. App. 21a), the court of appeals also construed

the Corps’ regulatory definition of wetlands (33 C.F.R.

323.2(c)) to exclude Riverside’s property (Pet. App.

10a-12a). The court’s ruling was plainly inconsistent

with the regulatory language. Moreover, the court failed

to recognize that the Corps’ regulatory definition of wet-

lands represents both a scientifically and administratively

A. Nothing In The Corps’ Definition Of “Wetlands”

Requires That They Be Created By “Frequent

Flooding” From Adjacent Navigable Water Bodies

The court of appeals was of the view that the Corps’

regulatory definition of “wetlands” is limited to areas in

which aquatic vegetation is caused by “frequent flooding”

by waters from adjacent streams, lakes, and seas Pet.

App. 15a). This interpretation finds no support what-

which encom-

soever in the language of the regulation,

passes not only areas that are “inundated” by adjacent

for life in saturated soil conditions.” 33 C. F. R. 323.2(c)

(emphasis added). “The [1977] revision makes it clear

that inundation is not necessary if actual saturation is

present.” Avoyelles Sportsmen's League, Inc. v. Alezx-

ander, 511 F. Supp. 278, 290 (W.D. La. 1981), aff'd in

part and rev'd in part on other grounds, 715 F.2d 897

(5th Cir. 1980). Nowhere in the Corps’ regulations is

there a suggestion that the water inundating or saturat-

ing an area must flow from a lake or stream. On the

contrary, the water inundating or saturating a wetland

may originate from groundwater, rainwater, surface run-

off, or a combination of these and other sources. See 42

Fed. Reg. 37128 (1977); ef. Avoyeiles Sportsmen's

League, Inc. v. Marsh, 715 F.2d at 933; United States v.

Byrd, 609 F.2d at 1208. Thus, the court of appeals’ re-

quirement that water flowing from adjacent navigable

waters cause the wetland vegetation—thereby eliminating

saturated or inundated areas fed by surface run-off,

groundwater, rainwater, or a combination of sources—

burdens the administrative definition with limiting con-

cepts untraceable to the regulatory language.

Contrary to the court of appeals’ suggestion Pet. App.

9a, 12a n.3), the preamble to the Corps’ 1977 regulations

one sentence in the preamble, and it read that sentence

out of context. The sentence stated that “[t]he abnormal

presence of aquatic vegetation in a non-aquatic area would

not be sufficient to include that area within the Section

court

— — — —

which, in the past, have been transformed into dry land

for various purposes.” 42 Fed. Reg. 37128 (1977).

Riverside’s property, which has exhibited the wetlands

characteristics of saturation and aquatic vegetation for

decades, is not within that category (see J.A. 52-53, 56,

58-60, 64-67, 69-71; pages 44-46, infra).

The court of appeals also misunderstood the import of

the Corps’ intent to assert jurisdiction over a wetland

area “as it exists” now, and “not as it may have existed

over a record period of time.” 42 Fed. Reg. 37128

(1977). By confining its self-created jurisdictional test

to instances of inundation from “frequent flooding,” the

court was able to conclude that Riverside’s property is not

a wetland “as it exists’ now” (Pet. App. 10a, 11a).

But the Corps intentionally eliminated the requirement of

“periodic inundation” (33 C. F. R. 209.120(d) (2) (h)

(1976)) because that phrase had been erroneously con-

strued “as requring inundation over a record period of

years.” 42 Fed. Reg. 37128 (1977). This was never the

Corps’ intent (ibid.) :

Our intent under Section 404 is to regulate dis-

charges 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

existing wetland and requires that the area be inun-

dated or saturated by water at a frequency and

duration sufficient to support aquatic vegetation.

Thus, the court clearly erred in concluding that the pres-

ence or absence of “frequent flooding” was conclusive on

26 Thus, the Corps’ regulation does require that the presence of

wetland vegetation be attributable to wet or saturated conditions,

as opposed to the “abnormal” presence of wetland species in a dry

or upland environment. However, inundation or saturation may be

intermittent, rather than constant; the inundation or saturation

need only be at a “frequency and duration sufficient to support

aquatic vegetation.” 33 C.F.R. 323.2(c). Cf. Avoyelles Sportsmen's

League, Inc. v. Marsh, 715 F.2d at 913.

the question whether Riverside’s property is a wetland

“as it exists” now.

Moreover, while vegetation and hydrology are the pri-

mary factors relied upon to identify wetlands, soil also

is considered a wetlands indicator. See Avoyelles Sports-

men’s League, Inc. v. Marsh, 715 F.2d at 917-918.“ Ac-

cordingly, the court of appeals plainly erred in suggesting

that the type of soil found on Riverside’s property—soil

characterized by a high water table, poor drainage, and

water at or near the surface—is a reason for concluding

that the prevalence of wetlands vegetation represents

“abnormal” growth in an upland area (Pet. App. 12a

n.3). On the contrary, the soil type is confirmatory evi-

dence that the wetland vegetation results from saturated

conditions, as contemplated by the regulatory definition.

In sum, the Corps’ regulation contains no requirement

that wetland vegetation be caused by frequent flooding

from navigable waterways, as opposed to other water

sources. In reading frequent flooding and causation re-

strictions into the regulation, the court of appeals clearly

disregarded the well-established principle that an agency’s

interpretation of its own regulations is entitled to defer-

ence by a reviewing court, particularly where, as here,

the matter involves technical expertise. See, e.g., Ford

27 In Avoyelles, the court upheld EPA’s methodology and applica-

tion of the regulatory definition of “wetlands” to a particular tract

of land. EPA’s methodology is discussed in a report attached as

an appendix to the court’s opinion. 715 F.2d at 930-934. The report

explained that [while vegetation is perhaps the most important

factor in applying the [wetlands] definition,” some species con-

sidered to be wetlands vegetation “may sometimes grow in soils

that are only rarely saturated” (id. at 931). Hydrologic or soil

data are therefore relevant factors used to verify the significance

of wetlands vegetation (id. at 931-933). The report observed that

much of the tract consists of soil types generally recognized as

wetlands soils because of fheir tendency to hold moisture and drain

poorly” (id. at 932). Thus, the wetland to be regulated in Avoyelles

“consist[ed] of those areas where the evidence showed that the

presence of wetland species was confirmed by either inundation or

saturated soils” (id. at 933).

Motor Credit Co. v. Milhollin, 444 U.S. 555, 556 (1980);

Udall v. Tallman, 380 U.S. 1, 16 (1965); Avoyelles

Sportsmen’s League, Inc. v. Marsh, 715 F.2d at 910.

B. The Regulatory Definition Of “Wetlands” Is Scien-

tifically Sound And Serves To Promote Congress’s

Water Quality Concerns

Having failed to consult the legislative history of Sec-

tion 404, the court of appeals was unaware of Congress’s

intention to promote enhanced water quality and the

necessary role that wetlands play in achieving that goal.

Thus, the court failed to appreciate that the Corps’ regu-

latory definition of “wetlands” (33 C.F.R. 323.2(c)) isa

scientifically sound description of areas performing the

multiple ecological services that scientists generally at-

tribute to wetlands. The presence of vegetation and

saturation or inundation are, for example, consistent with

the scientific identification of wetlands developed by the

United States Fish and Wildlife Service for purposes of

the National Wetlands Inventory authorized by Congress

in Section 208 (i) (2) of the CWA, 33 U.S.C. 1288(i)

2)“ Scientists have developed a complex taxonomic

28 The National Wetlands Inventory, for which Congress au-

thorized the expenditure of $6 million, was intended to generate

scientific information on the characteristics and extent of the

Nation’s wetlands in order to provide technical assistance to state

agencies regulating wetlands. See 33 U.S.C. 1288(i)(1) and (2);

123 Cong. Rec. 26715-26716 (1977) (remarks of Sen. Stafford);

Classification iii; R. Tiner, Fish & Wildlife Service, U.S. Dep’t of

the Interior, Wetlands of the United States: Current Status and

Recent Trends 2-3 (1984) [hereinafter cited as Current Status}.

The Fish and Wildlife Service, approaching the classification of

wetlands from an “ecological standpoint” (id. at 3), has adopted a

broader definition of wetlands than the regulatory definition used

by the Corps for jurisdictional purposes. For example, hydric soil

alone is sufficient to classify an area as a wetland under the defini-

tion employed by the Fish and Wildlife Service. See Classification

3. The Corps’ regulatory definition, on the other hand, requires a

combination of wetlands vegetation and inundation or saturation of

the soil (33 C. F. R. 323.2(c) ).

structure for differentiating types of wetlands (see gen-

erally Classification 4-33), but the single feature that

nearly all wetlands have in common is “soil or substrate

that is at least periodically saturated with or covered by

water.” Id. at 3. This exposure to water—from what-

ever source“ creates severe physiological problems for

all plants and animals except those that are adapted for

life in water or saturated soil.” bid.

Thus, the fact that the Corps’ regulatory definition of

wetlands attaches no significance to the source of water

is fully consistent with scientific understanding. Scien-

tists recognize that ground water, surface run-off, or

precipitation may be the source of the water feeding wet-

land areas. See Our Nations Wetlands 10; J. Kusler,

Environmental Law Institute, Our National Wetland

Heritage: A Protection Handbook 37 (1983) [herein-

after cited as Our National Wetland Heritage]. From

a functional standpoint, there is no merit to the court of

appeals’ requirement that “frequent flooding” from an

adjacent navigable water body be the cause of wetland

vegetation. The beneficial services provided by wetlands

are not limited by, nor dependent on, any particular test

of causation. Rather, areas having the physical charac-

teristics of wetlands (i.e., saturation and vegetation)

typically provide scientifically and economically demon-

strable ecological services and resource values. See gen-

erally Wetlands 25-28, 37-61.

For example, wetlands purify water by removing nu-

trients, processing chemical and organic wastes, and re-

ducing sediment loads. See Current Status 18.“ Wet-

20 The processes by which wetlands perform these functions are

too complex to be fully understood by scientists, much less explained

in detail here. It is clear, however, that vegetation is important to

these processes ( Wetlands 48 (footnote omitted) ) :

Dissolved nutrients (i.e., nitrogen and phosphorous) may be

taken up directly by plants during the growing season and by

chemical absorption and precipitation at the wetland soil sur-

face. Organic and inorganic suspended material also tends to

lands located in the transition zone between uplands and

permanent water bodies are particularly good water fil-

ters because they intercept run-off from land before it

reaches the water body. Ibid. Other functions performed

by wetlands, such as controlling floods by retarding the

flow of surface run-off or providing habitat and nutri-

tion for fish and wildlife,” likewise do not depend upon

any particular water source as the cause of the wetland

vegetation.

In short, the court of appeals’ “frequent flooding” test

bears no relationship to the best scientific understanding

of the role of wetlands. By excluding functionally im-

portant wetland areas from coverage under the Corps’

regulations, the court has failed to recognize Congress’s

intent to protect the economic and ecological value of

wetlands. The Corps’ regulatory definition, on the other

hand, reflects good wetlands science.

settle out and is trapped in the wetland. Some pollutants

associated with this trapped material may be converted by

biochemical processes to less harmful forms; some may remain

buried. Others may be taken up by the plants growing in the

wetland and either recycled or transported from it.

* * * With some toxic chemicals, like degradable pesticides, the

fact that these pollutants are secured in the wetland long

enough to degrade is important. Other toxics either remain

buried or are taken up by the wetland plants.

See generally Wetlands 48-52; Our National Wetland Heritage 37.

% Although some wildlife (e.g., waterfowl and muskrats) rely

directly on wetland vegetation for food, its primary food value is

indirect. Current Status 19. When a wetland plant dies, it frag-

ments into small particles to form detritus that flushes into ad-

jacent waters. Detritus is the base of an aquatic food web that

supports “higher consumers,” such as commercial fish (ibid.). Al-

though commercially and recreationally important fish may not

consume detritus directly, they feed on animals (e.g., snails, worms,

small fish, crustaceans) or aquatic insects that employ detritus as

a major food source (ibid.). Most aquatic animals depend, either

directly or indirectly, on this resource (ibid.)

C. The Corps’ Regulatory Definition Of Its Section 404

Jurisdiction Ensures That Critical Wetlands Will

Receive The Protection Intended By Congress And

Promotes Ease Of Administration For Regulators

And Landowners Alike

1. If Congress’s intention to protect wetland values is

to be realized, the Corps’ threshold jurisdiction to evalu-

ate proposed activities that might threaten those values

must be interpreted broadly. The determination whether

particular wetlands should be subject to restrictions on

development by virtue of Section 404 rationally can oc-

cur only after the Corps has been given the opportunity

to make case-specific evaluations. A narrow jurisdic-

tional threshold such as that adopted by the court below

thus pretermits the regulatory procedure set up by Con-

gress to enhance and maintain water quality. It leaves

wetlands that may be critical to the quality of the tra-

ditional waters to which the court below confined its con-

cern wholly outside the regulatory ambit.”

Each “adjacent wetland” subject to the Corps’ regula-

tory jurisdiction does not, however, perform ecological

functions to the same degree; nor does every pollutant

discharge into these areas cause significant downstream

impacts. A Corps permit will issue if the proposed activ-

ity complies with the guidelines issued under Section

404(b) of the Act, 33 U.S.C. 1344(b), and is otherwise

not contrary to the public interest. That determination,

of course, can only be made on a case-by-case basis. The

degree to which a particular wetland actually performs

the functions that Congress sought to promote varies

according to localized, complex, interacting factors. See

31 A broad test for threshold jurisdiction over adjacent wetlands

also is consistent with the Commerce Clause principle that the

triviality of an individual's intrastate act is irrelevant so long as

the class of such acts might well have a nationally significant effect

on interstate commerce. See Hodel v. Virginia Surface Mining &

Reclamation Ass'n, 452 U.S. at 277; Wickard v. Filburn, 317 U.S.

111, 127-128 (1942).

Wetlands 5, 37, 43. Impacts also depend on the scope

and methodology of the project and will vary according

to the season of the year. Id. at 124-135.

Jurisdictional rules are of only limited utility in aec-

commodating these variations. It is for that reason that

site and project-specific considerations are evaluated in

the Section 404 permit review process. In issuing Sec-

tion 404 permits, the Corps must apply environmental

guidelines developed by EPA in conjunction with the

Corps. See Section 404(b)(1) of the CWA, 33 U.S.C.

1344 (b) (1); 40 C. F. R. Pt. 230. EPA’s guidelines re

quire the Corps to consider the potential impact of the

proposed project upon the physical, chemical, and bio-

logical characteristics of the aquatic ecosystem. 40

C. F. R. 230.20-230.61.

The Corps has supplemented EPA’s guidelines with

its own regulations governing the issuance of all Corps

permits. 33 C.F.R. Pt. 320. Under these regulations,

the Corps engages in a “ ‘public interest balancing proc-

ess. which takes into account “the national concerns

for both the protection and utilization of important re-

sources.” 33 C. F. R. 320.1(a). The Corps’ “public in-

terest review” is “a dynamic program that varies the

weight given to a specific public interest factor in light

of the importance of other such factors in a particular

situation.” Ibid.

With respect to wetlands in particular, the Corps

evaluates seven criteria to determine whether a given

The guidelines state that “no discharge of dredged or fill ma-

terial shall be permitted if there is a practicable alternative to the

proposed discharge which would have less adverse impact on the

aquatic ecosystem” (40 C.F.R. 230.10(a)). In addition, if the

proposed discharge is to occur in a wetland (a “special aquatic

site”) and the proposal is not water dependent ie, it does not

require siting within or access to the “special aquatic site” to fulfill

its purpose—practicable alternatives are presumed available unless

otherwise specifically shown. 40 C.F.R. 230.10(a)(3). This pre-

sumption imposes an evidentiary burden on an applicant, but it

does not bar issuance of a permit if a proper showing is made.

wetland perform is] functions important to the public

interest.” 33 C. F. R. 320.4(b) (2). “ If a given wetland

is identified as “important” under these criteria, then

the Corps still must weigh the benefits of the project

against the damage to the wetland resources. 33 C.F.R.

320.4 (b) (4). Conversely, if a given wetland has rela-

tively little value under these criteria, the public inter-

est weighs more heavily in favor of issuance of the

permi

to result in an “all-or-nothing” decision.

the Corps may determine that a permit

should issue, but that it should be conditioned to reduce

adverse consequences of the proposal. Adverse effects

from the discharge of pollutants into the aquatic en-

of relatively low ecological value or by employing “best

management practices” (see 40 C.F.R. 230.70-230.77;

33 C.F.R. 330.6) or other measures to mitigate adverse

effects on water resources, including wetlands.”

A broad test for threshold jurisdiction, therefore, al-

functions, (2) is set aside for study or as a refuge (3) is valuable

for natural drainage, (4) is significant in shielding other areas

from erosion, (5) is valuable for water storage, (6) is a prime

natural recharge area for other connected waters, or (7) serves

to purify other waters.

* On average, more than one-third of all Section 404 permits

that are granted contain conditions requiring best management

practices or other mitigation measures. Wetlands 12.

inevitably lead to water pollution and destruction of

wetlands that would not otherwise occur.“

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sentially a throwback to the unduly complicated deter-

mination required when the mean or ordinary high water

mark was employed as the shoreward limit of jurisdie-

tion, undermines effective implementation of the Section

THE

404 program. In contrast to the relative ease with which

the jurisdictionai test set forth in the Corps’ regulations

can be applied to particular parcels of land, the court of

appeals’ “frequent flooding” test is dependent upon highly

technical, hydrologic data not readily accessible to land-

owners or regulators. As a practical matter, it would

be difficult for landowners to isolate the inundation re-

quired by the court’s decision from other factors affect-

ing the wetness of an area. The presence of saturated

soil and wetland vegetation is, however, relatively easy

to detect. Approximately 11,000 Section 404 permit ap-

plications are processed annually by 38 Corps district

offices. Wetlands 12. Due to the magnitude of the pro-

gram and its decentralized administration, effective im-

plementation of Section 404 is highly dependent on vol-

untary compliance by landowners, which in turn requires

a clear, easily-applied jurisdictional test. In effect, the

court of appeals’ decision requires a potential permit

applicant to hire hydrologists to assess the existence, the

frequency, and the direction of the flow of water, and

then to evaluate its causal relationshipship to the aquatic

vegetation. In these circumstances, public cooperation in-

evitably will be jeopardized. For the same reasons, the

government’s ability to enforce Section 404 by detecting

violations and advising landowners of permit require-

ments will be unduly complicated. By contrast, the

Corps’ regulations are a workable means of readily iden-

tifying areas subject to Section 404 jurisdiction, thereby

promoting effective implementation of the statutory

scheme.

IV. THE SOUTHERN PORTION OF RIVERSIDE’S

PROPERTY IS A WETLAND SUBJECT TO SEC-

TION 404 REGULATORY JURISDICTION

The vegetation and saturated soil conditions that char-

acterize the southern portion of Riverside’s property—

i.e., the area south and east of a contour line of the ele-

vation of 575.5 feet (International Great Lakes Datum)

(Pet. App. 31a)—bring that area within the Corps’ wet-

lands definition. (The Corps did not assert, nor did the

district court find, Section 404 jurisdiction over the

northwest portion of the property, some of which had

been filled previously without objection (Pet. App. 22a-

23a).) It is undisputed that the southern portion of the

property supports a “prevalence of vegetation typically

adapted for life in saturated soil condit 33 C.F.R

323.2(c). Expert witnesses identified all of the vegeta-

tion on the property as wetland species, and the

tation. J. A. 33-34, 56-57, 75, 77.“ As accurately

by the district court, “{Riverside’s] witnesses conceded

soil conditions for survival. J.A. 29, 34, 55, 71, 75-76. Thus, the

district court, in applying the Corps’ 1975 interim regulation, 33

C.F.R. 209.120(d)(2)(h) (1976), concluded that the unfilled,

southern portion of the property is “ ‘characterized by the preva-

lence of vegetation that requires saturated soil conditions for

growth and reproduction.“ Pet. App. 23a. Other types of vegeta-

tion found on the property (¢.g., ash, red maple, pussy willows,

cottonwood, and red ozier dogwood) can survive in dry or upland

but they can tolerate saturated wetland conditions. J.A.

33-34, 56-57. See also Classification 37-41 (listing all of the vegeta-

tion found on Riverside’s property as wetland plants). The 1977

revision to the Corps’ regulations eliminated the words “vegetation

that requires saturated soil conditions” (33 C. F. R. 209.120(d) (2) (a)

(1976)) and substituted the phrase “vegetation typically adapted

for life in saturated soil conditions“ (33 C.F.R. 823.2(c)). The

revision clarified that wetland species include vegetation that can

tolerate, but does not biologically require, saturated soil conditions.

See 42 Fed. Reg. 37128 (1977); Avoyelles Sportsmen's League,

Ine. v. Marsh, 715 F.2d at 912-913.

u The court of appeals declined to overturn any of the district

court’s factual findings, and thus they should be accepted by this

Court. See, ¢.g., Rogers v. Lodge, 458 U.S. 613, 623 (1982).

It is also clear that the property in question is, “as it

exists” now (42 Fed. Reg. 37128 (1977)), saturated at

a frequency and duration sufficient to support wetlands

vegetation. The Lamson soil found on the property is

generally saturated because of its attributes of poor

drainage and a high water table (Pet. App. 25a, 37a.“

The observations of expert witnesses who inspected the

property near the time of trial confirmed that there was

water on the surface and that the soil was saturated

(although there was no evidence suggesting that Lake

St. Clair was then at a high enough level to overflow

onto the property). J. A. 29, 47-48, 74-75, 77.“ More-

over, the prevalence of plants that require saturated soil

conditions, coupled with the evidence of abundant wet-

land wildlife such as muskrats and marsh wrens (JA.

41-42, 55, 66, 67), can only be explained by saturated

conditions.

Finally, Riverside’s property is an “adjacent” wetland

within the meaning of 33 C.F.R. 323.2(d). The property

As noted by the district court (Pet. App. 37a) the “Soil

Survey, Macomb County, Michigan,” issued by the Soil Conserva-

tion Service of the United tates Department of Agriculture (DX

28), confirmed that for Lamsom soil, the water table is at or

near the surface much of the year” (J.A. 21); that “water in and

or on the soil interferes with plant growth or cultivation” (J.A.

22); that “[a)rtifical drainage is a major management requirement

for all uses of this soil” (ibid.); aad that the soil is “well-suited”

for “wetland food and cover plants” and wildlife “that normally

frequent such wet areas as ponds, marshes, and swamps” (J.A. 25).

% Even Riverside’s expert, Mr. Gough, who had the most reserva-

tions about classifying the property as a wetland, testified that “at

the present time” the southern portion of the property could be

classified as a Class 3 wetland (a shallow fresh water marsh) that

is usually water-logged during the growing season and often is

covered with as much as six inches or more of water (J.A. 110

DX 91). As the surface elevation rises to the north, the property

was by Mr. Gough's evaluation a Class 2 wetland (an inland

fresh meadows wetland), in which the soil is without standing

water during most of the growing season but

a few inches of the surface (J.A. 110-111).

404 program. J.A. 41-42, 47, 62-63, 72, 75-76."

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CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

Rex E. LEE

Solicitor General

F. HENRY HABICHT II