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

Supreme Court, U.S.

FILED

OCT 2 1985

No. 84-701 :

! JOSEPH F. SPANIOL, JR.

— es

In the Supreme Court of the wits siates

OcTOBER TERM, 1985

UNITED STATES OF AMERICA. PETITIONER

v.

RIVERSIDE BAYview Homes. INC.. ET AL

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

CHARLES FRIED

Acting Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

SS

BEST AVAILABLE COPY ©

TABLE OF AUTHORITIES

Cases: Page

American Power & Light Co. v. SEC, 329 U.S.

% . „„ „sees 17

Avoyelles Sportsmen's League, Inc. v. Marsh,

re eee desen

Bayside Enterprises, Inc. v. NLRB, 429 US.

%%% eee 16

Carlson v. Landon, 342 U.S. 522 16

Chevron U.S.A. Ine. v. NRDC, No. 82-1005

Dit DD icc coecetueéececeetenss 15, 16

County of Oneida v. Oneida Indian Nation,

No. 83-1065 (Mar. 4, 1985) .............. 15

Dickerson v. New Banner Institute, Ine., 460

r ] ’ r etl ele, Seencnnhses 8

FEA v. Algonquin SN. Ie, 426 US

jig. wi ̃ ⅛Ä eee tes eee 16. 17

Heckler v. Day, No. 82-1371 (May 22, 1984) 14

Hodel v. Virginia Surface Mining & Reclama-

en 9

Hough v. Marsh, 557 F. Supp. 7117 19

Industrial Union Dep't, AFL-CIO v. American

Petroleum Institute, 448 US. 6077 16

Kaiser Aetna v. United States, 444 U.S. 164 7

Louisiana Wildlife Federation v. York, 761

„„ ce cvs fre kdenseenentsves lace ee

Morton v. Ruiz, 415 U.S. 199 16

NLRB v. Hearst Publications, Inc., 322 U.S.

eee soe ces 16

North Dakota v. United States, 460 U.S. 300 7

NRDC v. Callaway, 392 F. Supp. 685 ....... 15

United States v. Security Industrial Bank,

D 7 eeteadhasedenekeues 17

Williamson County Regional Planning

Comm'n v. Hamilton Bank, No. 84-4

rere ee ee esse 17

Constitution, statutes and regulations: Page

U.S. Const.:

Art. 1 (Commerce Clause 7. 8

Amend. V (Takings Claus 15

Clean Water Act of 1977, 33 U.S.C. 1251

et seq.:

CI 16

üer... ..ñ 17

uren. . passim

CLI 17

II 12

Durrer. . 9

3B UBL. BROGD . „„ 12

Surface Mining Control and Reclamation Act

of 1977, 30 U.S.C. 1201 ef seg. ........... 9

Tucker Act, 28 U.S.C. 149] ............... 17

II 19

IIIA 7

II 7. 11

SB CPR. SERS . 7

tee eee 2. 10

C. F. R. Pt. 330 ....... — 12

came... 10

CIT 12. 17. 19

Seren. 19

III 12

III 11

48 Fed. Reg. 21474 (1688 13

Miscellaneous:

118 Cong. Rec. 33699 (1972) .............. s

123 Cong. Rec. (1977):

p. 26607 ........ % eee ne 9

pp. 26718-26719 99. y

*

Miscellaneous Continued: Page

Fish & Wildlife Service, U.S. Dep't of the

Interior, Classification of Wetlands and

Deepwater Habitats of the United States

D „„ „„ „ „ 10-11

Institute for Water Resources, U.S. Army

Corps of Engineers, Research Report 79-R1,

Wetland Values—Concepts and Methods for

Wetlands Evaluation (1979) .......... 9, 10, 12

Office of Technology Assessment, Congress of

the United States, OTA-0-206, Wetlands:

Their Use and Regulation (1984) ......... 18

S. Rep. 95-370, 95th Cong., Ist Sess. (1977) . . 8

U.S. Corps of Engineers, Dep't of the Army,

Wetlands Delineation Manual, Doe. No.

EE ̃ . 11

i

I

5

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In the Supreme Court of the United States

OcTOBER TERM, 1985

No. 84-701

UNITED STATES OF AMERICA, PETITIONER

{ V.

Riversipe BAyview Homes, IN, br AL.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY, BRIEF FOR THE UNITED STATES

I. In its attempt to convince the Court that the

government's position in this case would, in the words

of the court of appeals, lead to federal regulation of “low

lying backyards miles from a navigable waterway” (Pet.

App. 21a), Riverside makes a number of factual

misstatements and incomplete statements that require

correction and clarification. We briefly address these

matters before turning to Riverside’s legal arguments.

A. First, Riverside asserts (Br. 4) that its property is

“ringed on all four sides by paved public streets and

fully developed urban areas.” Preliminarily, we note

that even if Riverside’s assertion were correct, it would

be irrelevant, because the presence of “man-made dikes

or barriers” does not defeat the Corps’ jurisdiction over

wetlands adjacent to “waters of the United States.”

2

33 C. F. R. 323.2(d). (We also note that many of the

Great Lakes are “ringed on all sides by paved public

streets,” including interstate highways. Certainly,

Riverside would not contend that this fact negates their

status as “waters of the United States” under the Clean

Water Act.) More important, however, is the fact that

there is direct, unimpeded access from the mid-east

boundary of Riverside’s property to additional marshes

and the open waters of Black Creek, a navigable water

of the United States. Black Creek in turn flows into

Lake St. Clair, and that lake connects directly with the

Great Lakes Erie (to the south) and Huron (to the

north). Indeed, it would not be an exaggeration to state

that one could, after wading through a cattail marsh,

swim directly from Riverside’s property to the Great

Lakes. This statement is documented by an aerial

photograph and a topographic map of Riverside’s prop-

erty (PX 1 (J.A. 118); PX 23 (S. Ct. Exh. 4), reproduced

in part at App., infra) that accurately reflect the true

location of the four “paved public streets and fully

developed urban areas.“ As these exhibits demon-

strate, the property touches paved streets on only two

sides. The northern boundary of the property (Ce, the

boundary of the upland portion over which the Corps

does not assert jurisdiction (see Gov't Br. 45) abuts

South River Road, which runs roughly parallel to the

Clinton River. The western boundary of the property

' The exhibits in this case are in considerable disarray, apparent-

ly because the district court clerk’s office misplaced them for a

number of years. It is our understanding that they were never sent

to the court of appeals, and that court appears to have decided the

case without benefit of any of the exhibits. When the government

requested the transfer of the exhibits to this Court, the district

court clerk’s office was unable to locate all of them, and thus this

Court does not have all of the exhibits in the case. Additional confu-

sion has been generated by the fact that the district court clerk's of.

fice renumbered the exhibits it did have before transmitting them to

DEST AVAILABLE COPY

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8

runs along Jefferson Avenue. The southern portion of

the property is, on the other hand, bounded not by a

paved street but by more wetlands (see also Pet. App.

24a). The road south of those werlands, the

Metropolitan Parkway, is some 1300 feet south of

Riverside’s property. Finally, and of greatest

significance, is the location of the north-south road to

the east of Riverside’s property, Venetian Drive. Bet-

ween the eastern boundary of Riverside’s property and

that road lie some 3300 feet of additional wetlands.

Moreover, at its southern terminus, Venetian Drive

dead ends at Black Creek; it does not connect with the

Metropolitan Parkway’s eastern terminus. Stated dif-

ferently, the “ring of paved public streets” is un-

mistakably broken, permitting direct access across

Riverside’s wetlands and wetlands owned by others to

Black Creek through a sizeable outlet of open water (not

merely a marsh) that does not require crossing “paved

streets,” man-made dikes or drains, or any other feature

relied upon by Riverside to convey the impression that

its property is unconnected to any navigable water.“

this Court. In some instances, it is not possible to determine the

former exhibit number, thus making it difficult to correlate the

trial testimony with particular exhibits. Where correlation is possi-

ble, we shall employ a parallel citation form, citing first to the

original exhibit number at trial and, in parentheses, to the new

number assigned to the exiaiat in this Court.

In any event, it is our view that the most informative exhibits are

PX 1 and PX 23(8. Ct. Exh. 4), and these exhibits are reproduced,

respectively, at J. . 118 and App., dura. PX 23 (8. Ct. Exh. is a

USGS topographic map of the quadrangle that includes Riverside’s

property; to make reproduction possible in this brief, we have

cropped the map to delete those portions of the quadrangle that are

quite distant from Riverside’s property.

* PX 23 (S. Ct. Exh. 4) was made in 1968 and revised in 1973,

with the revisions shown in purple (App., e The southern por-

tion of Riverside’s property, over which the Corps asserts jurisdic-

1

B. Riverside also asserts (Br. 4, 31) that its property

was actively farmed for close to 60 years, or until 1955.

In addition to the fact that historic use is irrelevant to a

current determination of wetlands jurisdiction, the

record citation that Riverside relies upon does not bear

out its contention. The witness, who was 75 years old at

the time of trial (1/21/77 Tr. 3), testified that he saw

corn on the property when he was about 10 years old

(id. at 6). Thereafter, he testified only that he and his

father cut hay on the property during World War II (id.

at 7); he did not testify to any other farming activity oc-

curring at that time or at any subsequent time.“

Although there is some evidence that row crops were

cultivated on the property as late as 1940 (J.A. 31;

1/21/77 Tr. 99-101), the only “agricultural” activity on

tion,as well as the surrounding wetlands to the south and east, is

dotted with the topographer’s symbol for marshes. App., infra;

1/15/77 Tr. 167-168. Thus, Riverside’s contention (Br. 31) that flood

protection activities undertaken by the Corps in 1973 are responsi-

ble for ereating the wetland conditions that now dominate its prop-

erty is totally contradicted by the abundance of marsh symbols on

the 1968 topographic map and the absence of any revisor's changes

to the map in 1973. See also Gov't Br. 47-48 n.41. It is also worth

noting that a USGS map prepared in 1952 (PX 22 (8. Ct. Exh. 17)

likewise shows marsh symbols all over the southern portion of

Riverside’s property (see also J. A. 43-44).

Riverside also cites (Br. 4) to DX 25, 26, and 27, in support of its

assertion that the property was actively farmed until at least 1955.

Unfortunately, these exhibits are not available to the Court; they

appear to be among the exhibits lost by the district court clerk's of.

fice. To the best of our knowledge, all three exhibits are Depart-

ment of Agriculture aerial depictions of the property, one made in

1940 and the other two in 1955. Without the exhibits themselve it

is of course impossible to ascertain what they show about past uses

of the property. We note, however, that there was testimony at

trial that only DX 26, the 1940 depiction, suggested the possibility

of farming activity. The quality of DX 25 and 27 (the 1955 depic-

tions), on the other hand, was too poor to indicate what use was

being made of the property (1/13/77 Tr. 51-52).

5

the property in the 1950s was the mowing of grass (J. A.

87; see also 1/21/77 60-61 (no agricultural use of the

property since at least 1951)). To our knowledge, mow-

ing grass does not constitute farming. In any event, far-

ming, be it mowing grass, cutting hay, or more tradi-

tional agricultural activities, is not inconsistent with the

status of the property as a wetland covered by Section

404. J.A. 37, 59-60. Indeed, the evidence shows that,

notwithstanding the very limited farming activities in

the distant past, the property has been a wetland since

at least 1873 (J. A. 17-18; 1/15/77 Tr. 153-155) and has

been consistently used for trapping and hunting

muskrats and waterfowl and for spear fisning by bow

and arrow (see, c. g.. J. A. 51-54, 64-71).

C. Riverside further asserts (Br. 4) that the portions

of the property that were not farmed were heavily

wooded by oak and maple trees that are still in existence

today. Riverside’s record citation for this contention ts

the confusing testimony of one witness that he observed

one dead oak tree and another tree that may or may not

have been an oak but had been pushed over by prior fill-

ing activities (Resp. Br. App. 3a-4a). In addition, the

cited testimony suggests that the dead oak tree and the

other unident fied tree were located on the upland por-

tion of Riverside’s property, over which the Corps does

not assert jurisdiction. In any event, none of the maps

and photographs in the record suggests that the prop-

erty (with the possible exception of a very small area in

the northern, upland portion) is heavily wooded. Final-

ly, the maple trees on Riverside’s property are a

wetland species of vegetation. J. A. 33, 56.

D. Riverside also contends (Br. 31) that its property is

partially developed with sidewalks, sewers, and fire

hydrants. The only testimony in the record with respect

to sidewalks is that of George Short, the scle owner of

Riverside Bayview Homes, Inc., to the effect that

sidewalks were “down on Macomber Street” when the

6

property was platted in 1916 (J.A. 85). Riverside

neglects to point out, however, that Macomber Street

runs only through the upland portion of its property not

covered by Section 404 (see PX 23 (S. Ct. Exh. 4), App.,

inf. ay, nothing in the record suggests that there are any

sidewalks on the wetland portion of the property. With

respect to sewers and fire hydrants, the record contains

testimony that the filling operation that would be

necessary for Riverside to carry out its development

plans would bury the sewers and fire hydrants, thereby

rendering them useless (see 1/17/77 Tr. 64 (It they

filled this area, they would have to extend the fire

hydrants and manhole covers up in the air.”)). The

record also contains testimony that the fire department

has been unable to put out marsh fires on Riverside’s

property because the area was too muddy for the fire

trucks to enter (1/21/77 Tr. 61-63).

E. In short, as we explained in our opening brief (at

44-48), the southern portion of Riverside’s property has

exhibited the wetland characteristics of aquatic vegeta-

tion and saturated (sometimes flooded) conditions for

decades (J.A. 56, 64-65, 70; 1/15/77 Tr. 59), and the

visual evidence befor this Court (J. A. 118; App., infra)

demonstrates beyond cavil that the property is adjacent

to navigable waters of the United States. Riverside’s

contention that its property is nothing more than an

“unconnected low-lying areal |” (Br. 38) is totally con-

tradicted by the evidence of record.

Il. A. Riverside contends (Br. 22) that the term

“navigable waters” as used in the Clean Water Act

refers only to “the navigable waters of the United

States, non-navigable portions of those waters and

tributaries.” According to Riverside (ibid.), the only

“wetlands” that Congress intended to regulate under

the CWA are those that “constitut|e] part of the forego-

ing waterbodies.” Reduced to its essentials, Riverside’s

7

argument amounts to a contention that Congress did

not intend to regulate adjacent wetlands at all, because

such wetlands, by definition, are not part of any of the

enumerated water bodies, but are instead the marshes,

swamps, and bogs adjacent to those water bodies.“ In

light of the legislative history of the 1977 amendments

to the CWA, this contention is untenable (see Gov't Br.

22-27 and pages 13-14, infra).

Riverside’s confusion clearly stems from its erroneous

assumption (Br. 16-22) that those waters subject to

federal regulatory control under the Commerce Clause

are the same as, ana no broader than, those waters sub-

ject to federal regulation for the purpose of protecting

or improving navigation. But this Court has clearly

recognized that the limits of Congress's Commerce

Clause powers are in no way circumscribed by factors

relating to navigation. See Kaiser Aetna v. United

States, 444 U.S. 164, 171-174 (1979). As the Court there

stated (id. at 174 (emphasis added)), “a wide spectrum of

economic activities ‘affect’ interstate commerce and

thus are susceptible of congressional regulation under

the Commerce Clause irrespective of whether naviga-

tion, or indeed, water, is involved.” In this case,

therefore, Riverside’s reference to the waters regulated

by the United States for purposes of navigation sheds

no light on congressional intent with respect to the

areas—be they traditional waters or wetlands—

* Although the Section 404 program also encompasses “isolated”

wetlands, Ie, wetlands such as prairie potholes (see North Dakota

v. United States, 460 US. 300, 304 0.4 (1983), the regulatory

standards for the Corps’ assertion of jurisdiction over isolated

wetlands differ from those applicable to adjacent wetlands. See 33

(FR. 323. 2(a¥2), (3), and (7). This case, however, does not involve

the regulation of “isolated” wetlands; instead, the Corps asserts

jurisdiction over Riverside’s property on the basis of its

“adjacency,” or geographic proximity, to open water bodies, See

pages 10-11, „%.

8

that Congress intended to regulate when exercising its

Commerce Clause powers to their “constitutional limit”

(see, e.g., 118 Cong. Rec. 33699 (1972); S. Rep. 95-370;

95th Cong., Ist Sess. 75 (1977). Indeed, one would have

to make the wholly unwarranted and truly fanciful

assumption that Congress was unaware of the broad

sweep of its regulatory powers under the Commerce

Clause in order to accept Riverside’s contention that

Congress believed the full extent of its constitutional

power over water was in any way circumscribed by the

interests of navigation.

Moreover, conspicuously absent from Riverside’s

enumeration of the waters it believes Congress in-

tended to regulate is any attempt to correlate those

waters with the purposes of the Clean Water Act. It is,

of course, axiomatic that a statute must be interpreted

in light of the purposes Congress sought to achieve. See,

e.g., Dickerson v. New Banner Institute, Inc, 460 U.S.

103, 118 (1983). As we demonstrated in our opening

brief (at 19-27, 33-39), the Corps’ definition of wetlands,

which attaches no significance to the source of water in-

undating or saturating an area characterized by

wetlands vegetation, is fully consistent with both con-

gressional and scientific understanding of the many

valuable services performed by wetlands. See also id. at

25 n. 17.

Riverside’s only response to these concerns is to argue

that the government is seeking “to expand the CWA in-

to the equivalent of a national wetlands preservation

act” (Br. 42). But the legislative history of the 1977

amendments to the CWA unequivocally demonstrates

congressional recognition of the importance of

wetlands. Congress clearly understood that wetlands

adjacent to large areas of open water such as Lake St.

Clair perform vital hydrologic support functions in the

aquatic ecosystem, including natural drainage, organic

9

and mineral nutrient exchange, sedimentation control,

flushing, water purification, provision of diverse fish

and waterfowl habitat required for all stages of life

cycles, water current control, and flood water storage.

See, e. g., 123 Cong. Rec. 26697 (1977) (remarks of Sen.

Muskie); id. at 26718-26719 (remarks of Sen. Baker); In-

stitute for Water Resources, U.S. Army Corps of

Engineers, Research Report 79-R1i, Wetland

Values—Concepts and Methods for Wetlands Evalua-

tion (1979) [hereinafter cited as Wetland Values]. And

to the extent that federal regulation of wetlands may

produce an incidental effect on local land use decisions

(see Resp. Br. 43), that result is merely a necessary by-

product of Congress's decision to control discharges in-

to waters of the United States, including wetlands. It no

more invades the province of the states than does im-

plementation of the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C, 1201 et seq. See

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

452 U.S. 264, 283-293 (1981). °

® Riverside’s additional argument (Br. 43-44 & 1.46) that Con

gress intended federal jurisdiction over wetlands to be construed

narrowly because it wanted to leave wetland regulation entirely to

the states is all the more unsound in light of Section EKH of the

CWA, 33 U.S.C. 1344(g¢1). In that Section, Congress expressly

specified the maximum extent to which it was willing to empower

the States to administer the Section ol program, including

wetland regulation. Judicial creation of a greater role for the states

would completely rewrite the statute. (We note that the decision of

20 states, including Michigan, to support the United States in this

case as amici curiae further belies Riverside’s argument.)

Finally, the fact that wetlands may be adversely affected by ac-

tivities not regulated under Section 404 and the existence of other

federal programs that provide different types of protection for

wetlands than does Section 404 (see Resp. Br. 45) do not support

Riverside’s argument for a narrow construction of Section 404.

Riverside cites no authority for the proposition that Congress must

address every facet of wetlands protection in a single statute; in-

deed, the existence of multiple statutes dealing with wetlands only

underscores the importance that Congress attaches to their protec:

tion.

10

B. Riverside and its amici argue that the court of ap-

peals’ “frequent flooding” test will ensure the presence

of a “hydrologic connection” between traditional water

bodies and those adjacent wetlands that Congress may

have intended to regulate under Section 404. This is

true enough, but it should be obvious that “frequent

flooding,” which was never mentioned in the legislative .

history of the 1972 Act or the 1977 amendments and is

nowhere to be found in the Corps’ regulations, is not the

only means by which to establish such a “hydrologic con-

nection.”

Although we disagree with the extremely narrow con-

cept of “hydrologic connection” espoused by Riverside

and its amici, we do not take serious issue with the pro-

position that wetlands, to be considered “adjacent” to a

water body (see 33 C. F. R. 323.2(d)), should have some

functional relationship with the water body. But that

relationship may take any number of forms, including

“frequent flooding,” a visible surface water connection,

a ground water connection, or, more generally but

equally pertinent, an areal relationship that recognizes

the interrelated nature of all waters, including

wetlands, in a single aquatic ecosystem. Wetland Values

26-27. (By a single aquatic ecosystem, we mean all

waters, including wetlands, within a geographically pro-

ximate hydrologic regime that support interrelated and

interacting communities of plants or animals (see 40

CF. R. 230. eh.

Precise quantification of the relationships within an

aquatic ecosystem and the relative importance of par-

ticular wetlands requires highly sophisticated tech-

niques and instruments beyond the scope of most

threshold jurisdictional inquiries conducted by the

Corps. Wetland Values 26. See also Fish & Wildlife

Service, U.S. Dep't of the Interior, Classification of

Wetlands and Deepwater Habitats of the United States

23 (1979) (technical data describing hydrologic

characteristics of water regimes, including wetlands, is

seldom available). Accordingly, the Corps invokes the

concept of “adjacency” as a regulatory tool to identify

: i :

presump-

tion that a wetland in close geographic proximity to an

open water body affects interstate commerce by virtue

of its relationship to that water body and is therefore

within the class of wetlands that Congress intended to

regulate. On the other hand, no such presumption at-

taches in the case of “isolated” waters, including

wetlands; in such cases, the Corps assumes the case-by-

case burden of demonstrating tl at the use, degradation,

or destruction of isolated waters, including wetlands,

could affect interstate commerce (33 C. F. R.

323. 2(aK3)).

The regulatory classification of wetlands into the

categories of “adjacent” and “isolated” is an essential

tool for the effective implementation of the statute. As

noted, establishing a hydrologic connection is often a

time-consuming and expensive process“ Were the

* Riverside takes issue (Rr. 32-33) with our position (Gov't Br.

40-44) that an easily-apphed threshold test for Seetvon 404 Jurte

tion benefits both landowners and regulators alike, contending that

wetlands determinations are inherently difficult and that satisfying

the court of appeals’ “frequent flooding” requirement therefore

adds nothing to the complexity of a wetlands determination. In

fact, however, the Corps’ draft n aual, U.S. Corps of Engineers,

Dep't of the Army, Wetlands Delineation Manual, Doe. No N

(Draft 1985) (upon which Riverside relies for its claim of complext-

ty), has not been officially adopted by the Corps, does not even ad-

dress the issue of hydrologne connections, and, more importantly,

states that Aim most cases, the combination of available office data

and relatively simple, rapidly applied, onsite methods will be suffi

cient” to make a wetlands determination. Id at 48. These methods

“usually [do] not require collection of quantitative data” of the sort

that se perplexed the district court (See Pet. App. ala

Dielineatvon Manual at 112.

"Tae Cone unten Ee

variables. K. g. Wetland Values 27. These variables are

fully considered in the permit review process (see, „.

40 C. F. R. 230.6(a), 230.10(b}(d), 230.11). To require

their consideration and definitive resolution earlier, at

the threshold jurisdictional stage, would, as noted,

’ Riverside complains (Br. 32) that the permit review process

itself is burdensome and time-consuming. Riverside’s own case,

however, which began with the submission of an incomplete ap-

plication, ts net typical. The Corps advises us that the average time

for processing: permit applications is currently 70 days. Never

theless. burdens on individual permit appheants are of concern to

the Corps, and, pursuant te 33 U.S.C. nh the Corps has

adopted varnous measures to streamline interagency review of per-

mit applications. Finally, a substantial number of actions that

would otherwise require individual Section 404 permit applications

are instead automatically authorwed by “general” permits issued by

regulation. See 33 U.S.C. 1d44teu ly 33 CPLR. Pt. 330.

13

result in the unwarranted degradation or destruction of

many environmentally significant wetlands. According-

ly, the Corps’ “adjacency” regulation, as broadly defined

above in accordance with sound scientific principles,

should be upheld as a reasonable administrative ap-

proach to Riverside’s “hydrologic connection” argu-

ment.“

C. As we demonstrated in our opening brief (at 22-25),

Congress in 1977 clearly ratified the Corps’ interpreta-

tion of its jurisdiction under Section 404. While River-

side correctly notes (Br. 35-36) that Congress was

dissatisfied with certain aspects of the Corps’ Section

404 program, it ignores the fact that Congress engaged

in a comprehensive reexamination of every facet of that

It is important to note that the outer limits of what may proper-

ly constitute a “hydrologic connection” need not be defined in this

case. The maps and photographs of record (PX 1 (J. A. 118); PX 23

(S. Ct. Exh. J), App., infra) clearly demonstrate an open water con-

nection between Riverside’s marsh and the navigable waters of

Black Creek. Using any sensible approach to the problem, this con-

nection clearly satisfies the “hydrologic connection” requirement

urged by Riverside. Moreover, the district court's finding that

there was no hydrologic connection between Riverside’s property

and the adjacent water bodies (Pet. App. 32a-37a) clearly referred

only to the absence of a subsurface flow from the adjacent water

bodies to Riverside’s property. Whether or not this finding is clear-

ly erroneous (as we suspect it is) is irrelevant in the face of the visi-

ble surface water connection. See also Gov't Br. 8 n.7.

Finally, it should be noted that the Corps has discarded proposed

regulations (48 Fed. Reg. 21474 (1983)) that would have amended

the definition of “adjacent” to require, in addition to geographic

proximity, “a reasonably perceptable [sic] surface or subsurface

hydrologic connection to a water of the United States.” The pro-

posal was abandoned in the face of adverse comments, particularly

from EPA (which bears ultimate administrative responsibility for

defining “waters of the United States”). The commentors feared

that the Corps’ proposal would be read too narrowly, so as to ex-

clude from the “hydrologic connection” concept those geographical-

ly proximate wetlands that perform the functions of concern to

Congress even in the absence of a readily-ascertainable surface or

subsurface connection to open water bodies.

14

program and decided to cure the objectionable features

by exempting specific activities from Section 404’s per-

mit requirements; on the other hand, Congress express-

ly declined to adopt an amendment to limit the Corps’

interpretation of the geographic reach of Section 404.

Congress understood exactly what it was doing (ef.

Heckler , Day, No. 82-1371 (May 22, 1984), slip op.

7-12), it #hequivocally rejected the interpretation urged

by Riverside. Contrary to Riverside’s argument (Br. 36),

therefore, this case does not involve an ordinary claim

of legislative acquiescence through silence, nor is it

simply a case of reliance on post-enactment remarks by

individual legislators.“

D. As we have demonstrated here and in our opening

brief, the Corps’ regulations reasonably interpret con-

gressional intent, and the court of appeals erred in

substituting its own construction of the statute and the

regulations for that of the agency. Riverside’s response

is to argue (Br. 29) that no deference is due the Corps’

interpretation because it has not been consistent.

Notably, Riverside never acknowledges that the

ultimate administrative responsibility for defining

* Equally without merit is Riverside’s suggestion (Br. 36-37 n.39)

that congressional ratification of the Corps’ program, if any, was

limited to the Corps’ 1975 interim final regulations and did not en-

compass the final regulations promulgated in 1977. The 1977

regulations were promulgated before the pertinent legislative

debates, and Congress was aware of those regulations (see, ¢.4.,

Gov't Br. 24). In any event, Riverside erroneously argues (Br. 37

n.39) that the 1975 regulations encompassed only those freshwater

wetlands created by periodic inundation from a contiguous or adja-

cent navigable water. This interpretation is not traceable to the

1975 regulatory language, and the 1975 regulations were never so

construed by the Corps. As with the 1977 regulations, the Corps’

position was that the source of water—be it overflow from adja-

cent water bodies, rainwater, ground water, or storm water

runoff—was irrelevant. See Affidavit of William N. Hedeman, Jr.

(Inst. Ct. Docket Entry No, 14)

15

“waters of the United States” rests with EPA (see Gov't

Br. 18 n.11), and that agency has demonstrated un-

wavering consistency in its interpretation and im-

plementation of the CWA. Moreover, the only “incon-

sistency” on the part of the Corps was rectified in

response to the order in NRDC v. Callaway, 392 F.

Supp. 685 (D. D.C. 1975) (see Gov't Br. 5-6); since that

time, the Corps has never deviated from the interpreta-

tion of the CWA it advances in this Court. Indeed, it is

only by blinding itself to any distinction between pro-

posed regulations and duly promulgated final regula-

tions that Riverside is able to advance its claim of “in-

consistency” on the part of the Corps. But the notion

that an agency’s interpretation of a statute is undeserv-

ing of deference whenever it makes changes to pro-

posed rules undermines the very purpose of notice and

comment rulemaking. In any event, “[a]n initial agency

interpretation is not instantly carved in stone. On the

contrary, the agency, to engage in informed rulemak-

ing, must consider varying interpretations and the

wisdom of its policy on a continuing basis.” Chevron

U.S.A. Ine. v. NRDC, No. 82-1005 (June 25, 1984), slip

op. 25.

III. Finally, Riverside argues (Br. 41, 46-50) that if the

CWA does permit the regulation of “adjacent wetlands”

as defined by the Corps, then the Act is an unconstitu-

tional delegation of legislative functions and violates the

Takings Clause of the Fifth Amendment. Neither con-

tention has any merit.'®

A. Congress may constitutionally delegate to an ad-

ministrative agency the responsibility for effectuating

Riverside never raised the delegation argument in the lower

courts, and those courts had no oecasion to pass on it. Accordingly,

this Court should decline to consider the issue. See, ¢.g., County of

Oneida v, Oneida Indian Nation, No, 83-1065 (Mar. 4, 1985), slip

op. 16-17,

16

legislative policy so long as it sets general standards

sufficient to provide the agency with an intelligible prin-

ciple for guidance. See, e.g., FEA v. Algonquin SNG,

Ine., 426 U.S. 548, 559 (1976); Carlson v. Landon, 342

U.S. 524, 542-544 (1952). Congress’s delegation of

authority to the Corps (and the EPA) under the CWA

easily satisfies this test. Avoyelles Sportsmen's League,

Ine. v. Marsh, 715 F.2d 897, 916 (5th Cir. 1983).

In determining whether Congress has provided suffi-

cient standards, it is appropriate to look to statutory

context and legislative history to add gloss to a broad

grant of legislative authority. See /ndustrial Union

Dept, AFL-CIO v. American Petroleum Institute, 448

U.S. 607, 675-676 (1980) (Rehnquist, J., concurring).

The stated goals of the CWA (restoration of the integri-

ty of the Nation’s waters and elimination of discharges

of pollutants into those waters, 33 U.S.C. 1251(a)), the

legislative history’s guidance that “waters of the United

States” be construed to the constitutional limit to ac-

complish those goals, and the 1977 legislative history

relating specifically to Section 404 collectively provide

an intelligible standard to guide the Corps’ assertion of

regulatory jurisdiction.'' This Court has recognized

he Corps’ promulgation of regulations defining “waters of the

United States” does not warrant the conclusion that an unconstitu-

tional delegation has occurred, “The power of an administrative

agency to administer a congressionally created ... program

necessarily requires the formulation of policy and the making of

rules to fill any gap left, implicitly or explicitly, by Congress.”

Chevron USA, Ine. u NRDC, slip op. 5 (quoting Morton v. Kuss.

415 U.S. 199, 231 (1974). Furthermore, it is immaterial that such

yap-filling regulations clarify a term that determines jurisdiction

under the Act. See Bayside Enterprises, Ine. v. NLRB, 429 U.S.

298, 303-304 (1977) NLAB v. Hearst Publications, Ine, 322 U.S.

111, 180 (1944),

With respect to the Corps’ authority to grant or deny permits,

which Riverside also sugyests (Br. 41) is an unconstitutional

17

that “‘[njecessity ... fixes a point beyond which it is

unreasonable and impractical to compel Congress to

prescribe detailed rules. FEA v. Algonquin SNG, Ine.,

426 U.S. at 560 (quoting American Power & Light Co. v.

SEC, 329 U.S. 90, 105 (1946)). The specificity demanded

by Riverside would exceed that point, and its delegation

argument should be rejected.

B. Riverside’s argument that the Corps’ assertion of

regulatory jurisdiction over wetlands of the type found

on its property amounts to an unconstitutional taking of

private property reflects a failure to distinguish be-

tween the mere assertion of regulatory jurisdiction over

wetlands and the decision to grant or deny a permit.

This Court recently reaffirmed the principle that taking

claims are premature until a landowner receives a final

decision regarding how or whether he will be permitted

to develop his property. Williamson County Regional

Planning Comm n v. Hamilton Bank, No. 84-4 (June 28,

1985), slip op. 17. The Court also reaffirmed the princi-

ple that taking claims against the federal government

are premature until the landowner has availed himself

of the process for seeking just compensation provided

by the Tucker Act, 28 U.S.C. 1491. Williamson County,

slip op. 20-21. Riverside has not done so.

Accordingly, the proposition (Resp. Br. 16, 50) that a

statute susceptible to more than one interpretation

should be construed so as to avoid a taking of private

property is inapposite here. In United States v. Security

Industrial Bank, 459 U.S. 70, 77-78, 82 (1982), the

Court concluded that Congress did not intend to apply a

provision of the Bankruptcy Code retroactively in part

because, if it were so applied, the statute would effect a

delegation of legislative power, the CWA sets forth quite specific

criteria, See 33 U.S.C. aan 38: ULS.C. 1343; Avoyelles Sports

men's League, Ine, v. Marsh, 715 F. q at 916; Gov't Rr. 21 m. 12.

18

taking on its face for private purposes. Here, on the

other hand, the assertion of CWA jurisdiction merely

triggers a permit requirement for certain polluting ac-

tivities, not a taking of any property right.

In an attempt to overcome the problems with its tak-

ing argument, Riverside asserts (Br. 48) that a deter-

mination of wetlands jurisdiction is invariably tanta-

mount to a permit denial.’ Riverside grossly

misrepresents reality by its claim (Br. 49) that “[t}he

criteria contained in the Corps’ regulations relative to

the granting of a permit in a wetland area assure that a

permit will be denied.“ Riverside apparently bases this

misstatement on its erroneous assumption (Br. 48) that

the Section 404 regulagigns effectively require the

' At the same time, Riverside recognizes (Br. 49), as it must,

that the determination whether a permit denial amounts to a tak-

ing requires a factual inquiry. Thus, Riverside’s taking argument

must be rejected for the additional reason that it can poimt to no

evidence supporting its assertion ( that without a permit there

is no alternative economic use of its property; there simply was no

inquiry in the courts below into possible alternative uses of River-

side's property. Riverside’s assertions (Rr. 47-48) that the only use

for the wetlands portion of its property is as a housing subdivision

and that agricultural use is neither economically viable nor com-

patible with the site improvements (e, the sewers and fire

hydrants discussed at pages 5-6, supra) are totally without record

Support,

In fact, only a small number—approximately 2.7% —of all See-

tion 404 permit applications are denied. Office of Technology

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

Their Use and Regulation 143-144 (1984). The Corps grants 50% of

Section 404 permit applications without significant modification,

and 33% are granted with substantial modifications intended to

reduce adverse project impacts. Id. at 12. In 1980-1981, the Corps

authorized projects that resulted in the conversion to other uses of

about 50% of the wethinds acreage for which permits were sought,

Id. at 11. 144-145, a

19

denial of a permit for any project that does not need to

be located in, or in close proximity to, the aquatic en-

vironment.

In fact, an applicant for a nonwater-dependent activi-

ty covered by Section 404 may instead show a lack of en-

vironmentaily preferable practicable alternatives (33

C.F.R. 320.4(b\4); 40 C. F. R. 230.10(a)); the showing re-

quired is inversely related to the degree of potential

adverse .mpact from a proposed activity (see 40 C. F. R.

230.6(a)). Although a permit application for a nonwater-

dependent activity necessitates a more persuasive

showing regarding the lack of alternatives than does an

application for a water-dependent activity, this distinc-

tion imposes only a heightened factual burden. For ex-

ample, in Louisiana Wildlife Federation v. York, 761 F.

2d 1044, 1047-1048 (5th Cir. 1985), the court of appeals

approved the Corps’ issuance of permits allowing the

conversion of 5,200 acres of wetlands to agricultural use

(a nonwater-dependent activity), notwithstanding a

claim that the permit applicants had failed to make the

necessary showing concerning the lack of alternatives.

The court held that under the Corps’ regulations and

EPA's guidelines, the Corps was permitted, and indeed

had the duty, to consider the objectives of the project

and the economic feasibility and logistics of alter-

natives. 761 F.2d at 1048. See also Hough v. Marsh, 557

F. Supp. 4, 83 (D. Mass. 1982) (finding of water

dependency is not a prerequisite to filling wetlands

under Section 404, but it is a factor to be considered in

the application process). On this record, therefore, there

is no support for Riverside’s argument that the mere

assertion of regulatory jurisdiction amounts to a taking.

20

For the foregoing reasons, as well as those stated in

our opening brief, the judgment of the court of appeals

should be reversed.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

OCTOBER 1985

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