Amicus Curiae Brief — United States v. Riverside Bayview Homes, Inc.

No. 84-701

IN THI ok

MAL

Supreme Court of the United States

OcTOBER TERM, 1984 ——

L NITED STATES OF AMERICA.

Petitioner

Riversipte Bayvirw Homes. INC.. ef a/

ON WRIT OF CERTIORARI

fO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUTI

BRIEF OF AMICI CURIAEF

NATIONAL WILDLIFE FEDERATION, STATE OF ALASKA,

AMERICAN FISHERIES Society, Bass ANGLERS

SPORTSMAN SOCIETY, CHESAPEAKE Bay FOUNDATION,

INC... ENVIRONMENT COUNCIL OF RHODE ISLAND, INC.,

ENVIRONWENTAL DEFENSE FUND, INC... ENVIRONMENTAI

Pouicy Unsrirute, STATE OF FLORIDA, FLORIDA

AUDUBON Society, FLoripsa Witpitre FEDERATION,

LOUISIANA WILDLIFE Feperation, Stare OF MEICHIGAN.,

MicHican Untrep Conservation Crupss, INc..,

NATIONAL AUDUBON Society, NortH CAROLINA

Witpuire Feperation, Scenic Hupson, INC. SreRRa

Crus, Soutn CaROLina WILDLIFE FEDERATION,

TENNESSER CONSERVATION Leacur, Trout LU NLIireD,

WILDLIFE FEDERATION OF ALASKA, Witpuire MANAGEMEN!

INSTITUTE, and Wisconsin Witpuirr Feperation, INC.

IN SUPPORT OF PETITIONER

FRANK J. KELLEY JERRY JACKSON

Attorney General National Wildlife Federation

Louts CARUSO 1412 Sixteenth St... N.W

Solicitor General Washington, DC 20036

State of Michigan (202) 797-6827

760 Law Building

Lansing, Michigan 48913 Counsel of Record and

(517) 373-1110 Attorney for Amici Curiae

PANDICK WASHINGTON, D.C.—18)1N. OAK STREET, ARLINGTON, VA 22209— (703) 522-6000

i

QUESTION PRESENTED

Whether the definition of wetlands for purposes of Clean

Water Act regulation correctly includes wetiand areas that are

not frequently flooded by adjacent streams.

TABLE OF CONTENTS

Page

OF i

TABLE OF CONTENTG...................--c00000 auscsnmmaminastiitan il

TABLE OF AUTHIORITTES ............-0...cccc-ccccsecscssnsesecees il

INTERESTS OF AMICI CURIAE ................-.:.-cccceeceeesees l

SUMMARY OF ARGUMENT .....0000......ccccceeceeeeeeneenees 2

BA EEE 3

1 THE DISTRICT COURT PROPERLY EN-

JOINED FILLING ACTIVITY WITHIN

AREAS OF RIVERSIDE’S TRACT THAT

MEET THE REGULATORY DEFINITION

ON 3

Il. CONGRESS INTENDED THE GEO-

GRAPHIC REACH OF SECTION 404 TO BE

FREE OF TRADITIONAL JURISDICTION

———— EEE 7

Ill. THE 1977 LEGISLATIVE HISTORY DEM-

ONSTRATES A CONTINUED LEGISLA-

TIVE COMMITMENT TO SECTION 404’s

GEOGRAPHIC JURISDICTION _ ESPE-

CIALLY WITH REGARD TO WETLANDS... 1!

IV. THE REGULATORY AGENCIES’ DEFINI-

TIONS OF “WETLANDS” FULFILL CON-

GRESSIONAL INTENT BY IDENTIFYING

WETLAND AREAS LIKELY TO PERFORM

FUNCTIONS CONGRESS CONSIDERED

TO BE VAL UAE ncccccccceccnccccccncssscnssnsccessases 15

V. THE DECISION OF THE COURT BELOW

IMPOSES AN ARTIFICIAL JURISDIC-

TIONAL LIMITATION ON SECTION 404

THAT EXCLUDES WETLANDS THAT

CONGRESS INTENDED TO REGULATE....... 18

VI. SECTION 404 REGULATION OF RIV-

ERSIDE’S WETLAND IS WELL WITHIN

CONGRESS’ CONSTITUTIONAL AUTHOR-

A. The Just Compensation Clause Does Not

Preclude Congress’ Authority to Regulate

Discharges Into Wetlands ......................-.---+. 21

B. Congress’ Determination That Destruction

of Wetlands Substantially Affects Interstate

Commerce Has a Rational Basis................... 23

ee tl) eee 28

PX 1) |) Fann la

TABLE OF AUTHORITIES

CASES:

Bell v. New Jersey, 461 U.S. 773 (1983)... cece.

Chapman v. Houston Welfare Rights Org., 441 U.S.

i enenenannnees

Chemical Manufacturers Ass’n v. NRDC, 105 S. Ct.

ALESSI

Colautti v. Franklin, 439 U.S. 379 (1979) o000000000.000..

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870) ........

Gibbons v. Ogden, 22 U.S. (9 Wheat.) | ( 1824)..........

Heart of Atlanta Motel, Inc. v. United States, 379

a sttetenmnacane

Hodel v. Virginia Surface Mining & Reclamation

LT

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

Manyland v. Wirtz, 392 U.S. 183 (1968)...

Minnehaha Creek Watershed Dist. v. Hoffman, 597

a

Missouri v. Holland, 252 U.S. 416 (1920)......0.....c0c...

Mount Sinai Hosp. v. Weinberger, 517 F.2d 329 (Sth

EEE ASSET

Natural Resources Defense Council v. Callaway, 392

Sk.)

North Dakota v. United States, 460 U.S. 300 (1983) ..

Perez v. United States, 402 U.S. 146 (1971) ...0.0000000...

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) 00000000...

Ruckelshaus v. Monsanto Co., 104 S.Ct. 2862 (1984).

Swanson v. United States, 600 F. Supp. 802 (D.

— 1985), appeal pending, No. 85-3718 (9th

LESSEE

United States v. Appalachian Electric Power Co., 311

i eenmsences

United States v. Ciampitti, 583 F. Supp. 483 (D.N.J.

1984), appeal pending, No. 85-5004 ( 3rd Cir. )......

Page

10,13

24-25

23

21

IV

Page

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

SIGIR, (OTN x: ccnptiicsiaesipandttiitaniasennbenesniensebeniadinitin 21

United States v. Darby, 312 U.S. 100 (1941)... 23,26-27

Utah v. Marsh, 740 F.2d 799 ( 10th Cir. 1984) ............ 25

Wickard v. Filburn, 317 U.S. 111 (1942)... 27

STATUTES AND REGULATIONS:

Clean Water Act, 33 U.S.C. 1251 et seq.

a Fe sictetiininictcctinenicitiicnnecsionninniionie 8,14

po RET Sp, REE 9.14

ie I ins scicinenibiniehcasicinsstnasanalianvecinnidcindnianies 16

I RN ii iisessseccdesindéissnnssticiinnibauiiadiibinss 3,10,16

BD iis te idectnicitisncinicisnresiitinisincititiinimnmniainii 10,16

BD a Bai cicescessccstiscistnneniesvunininasiniiiteninuniniinaaniiin passim

Te Sa ee rei esiniihindneiseitidiihiticcentsniinicitcisadaiannsiitiinn 3

Be Fi ee vesictesccestncndscinisiinnstinciinnassinndiptennians 14,16

BD ULBG, COED cncevescrcccscencesccsstesconevesesescesscsscene 14-15

FD a Ce iecctenttiticcinnetsienstdinnicnenstinnsainiincitininann 3

Be HE FP ncicertamiciicteeenienenintaeniesmeniinntins 3,9-10

Clean Water Restoration Act of 1966, Pub. L. No.

, SSI eiecennctecinisercnnstinssctiidisanniinapianntaniiiee 7

Federal Water Pollution Control Act Amendments of

I, Ge rs ee I i iccttncccnctcccnnctisscnecnnsicisnstionese 7-8

Federal Water Pollution Control Act Amendments of

1961, Pub. L. No. 87-88, 75 Stat. 204.000.0000. 7-8

Rivers and Harbors Act of 1899, 33 U.S.C. 403 and

Re secstuiininnlatihteinentadimbicincsttaasidicstiaeminnaaniion 8

Det te, Fae ls Se icstaniccciercenencinnenensecienaim 22

bs - ? emma Control Act of 1948, ch. 758, 62 Stat. -

Water Quality Improvement Act of 1970, Pub. L. 91-

Be I OT scctterensscesninsintnnevenscreecsnenemarnennnin 7

pie S Beh FG) ee 4,7

Page

pS A ee 4-6,16-17

me I 4

| ee a a 4-5,16-17

40 Fed. Reg. 31324-31325, formerly codified at 33

te Rs | eee 4,10

8 ELAS nt AS A a ete OOD 17-18,21

ISR TR 7

rr re i csnteinieiniin 7

49 Fed. Reg. 39484, to be codified at 33 C.F.R.

EES NE One Rr nD 7

MISCELLANEOUS:

F. Bellrose, Ducks, Geese & Swans of North America

| SIERRAS SSE Ie a aS 1 SA NC = 25

Congressional Research Service, 95th Cong., Ist

Sess., Legislative History of the Federal Water

Pollution Control Act Amendments (1973 and

IF eiasieiichesseilacindaerdandiniapipaciiiaadisalcanicidiadilidabiaiaaieebinadaiiinsamen passim

Gosselink & Turner, The Role of Hydrology in

Freshwater Wetland Ecosystems, in Good, et al.

(eds.), Freshwater Wetlands: Ecological Processes

and Management Potential ( 1978) ..0........ccccccceeee. 17

Harper & Row’s Complete Field Guide to North

American Wildlife ( Eastern ed. 1981) ......0000..cco... 6

Library of Congress, Case Law Under the Federal

Water Pollution Control Act Amendments of 1972,

House Public Works and Transportation Com-

EES REA OND 13

McCormick, Ecology and the Regulation of Fresh-

water Wetlands, in Good, et al. (eds. ), Freshwater

Wetlands: Ecological Processes and Management

STE LE NI ee 17

Office of Technology Assessment, Wetlands: Their

Use and Regulation (1984) ooo... eeceeeeeeeeees 27

Office of Technology Assessment, Wetland Use and

Regulation: Alaska Case Study (1983) 0.000.000... 19

43 Op. Att’y Gen. No. 15 (Sept. 5, 1979) .occccccccccscseooe 4

vi

C. Richardson, Pocosin Wetlands ( 1981 )....................

2A C. Sands, Statutes and Statutory Construction

CGE, FE, D ccsvesicsseccensstenioniensnestitesnemieimenerees

U.S. Army Engineer Waterways Experiment Station,

Preliminary Guide to the Onsite Identification and

Delineation of the Wetlands of the Interior United

SNEED nccctesncniiitbimensantincnnicnasianennieneiinmniinttinutes

2 [1961] U.S. Code Cong. & Ad. News 2082-20864 ....

U.S. Fish & Wildlife Service, Classification of Wet-

lands and Deepwater Habitats of the United States

6 Di er ccniinnstebtessticssersneteriieshaiidininatinnsniitiaiaepiniaiaiediiinumads

U.S. Fish & Wildlife Service, 1980 National Survey

of Fishing, Hunting, and Wildlife-Associated Rec-

CIID ccccecscsirsintatsaniicitsitlp asisienscuuipatitehaniamainaiadiileonmiansieaven

U.S. Fish & Wildlife Service, Wetlands of the United

States: Current Status and Recent Trends ( 1984) ...

Want, Federal Wetlands Law: The Cases and the

Problems, 8 Harv. Envt’l L. Rev. | ( 1984)..............

M. Weller, Freshwater Marshes: Ecology and Wild-

life Management ( 1981 )...................csrscsscsseeseseereees

Wenner, Federal Water Pollution Control Statutes in

Theory and Practice, 4 Envt’l Law 251 (1974)........

D. Zwick & M. Benstock, Water Wasteland (1971) ...

25

16,19,21,

25

8,10

17,19,21

8

8,27

IN THE

Supreme Court of the Mnited States

OCTOBER TERM, 1984

No. 84-701

UNITED STATES OF AMERICA,

Petitioner

v.

RIVERSIDE BAYViEW Homes, INC.., et ai.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE

NATIONAL WILDLIFE FEDERATION, STATE OF ALASKA,

AMERICAN FISHERIES Society, BASS ANGLERS

SPORTSMAN Society, CHESAPEAKE Bay FOUNDATION,

INC., ENVIRONMENT COUNCIL OF RHODE ISLAND, INC.,

ENVIRONMENTAL DEFENSE FUND, INC., ENVIRONMENTAL

Pouicy INSTITUTE, STATE OF FLORIDA, FLORIDA

AUDUBON Society, FLORIDA WILDLIFE FEDERATION,

LOUISIANA WILDLIFE FEDERATION, STATE OF MICHIGAN,

MICHIGAN UNITED CONSERVATION CLUBS, INC.,

NATIONAL AUDUBON Society, NortH CAROLINA

WILDLIFE FEDERATION, SCENIC Hupson, INc., SIERRA

CLus, SouTH CAROLINA WILDLIFE FEDERATION,

TENNESSEE CONSERVATION LEAGUE, Trout UNLIMITED,

WILDLIFE FEDERATION OF ALASKA, WILDLIFE MANAGEMENT

INSTITUTE, and WISCONSIN WILDLIFE FEDERATION, INC.

IN SUPPORT OF PETITIONER

INTERESTS OF AMICI CURIAE

Pursuant to Supreme Court Rule 36.2 the National Wild-

life Federation and the above-listed states and organizations

2

file this brief as amici curiae in support of the petitioner United

States. Letters of consent from counsel for the parties have

been filed with the clerk.

Amici curiae are the states of Alaska, Florida, and Michi-

gan and non-profit membership organizations dedicated to the

conservation and wise use of natural resources including wet-

lands. Members and citizens of amici curiae regularly use and

enjoy the wetlands of the United States for outdoor recreation,

including fishing, hunting, hiking, camping, nature observation,

photography, scientific study, and aesthetic enjoyment. Mem-

bers and citizens of amici curiae also have a substantial interest

in the protection and preservation of wetlands because these

resources contribute to the maintenance and restoration of the

chemical, physical, and biological integrity of the Nation’s

waters. Members and citizens of amici curiae will be adversely

affected by a judicial decision that removes important wetlands

from the regulatory scope of Section 404 of the Clean Water

Act, 33 U.S.C. 1344.

Amici curiae have participated extensively in all facets of

public decisionmaking on the use of wetlands. Amici curiae

support Section 404 of the Clean Water Act including its

application in a broad geographical sense to wetlands. Amici

curiae have also brought, entered, and filed amicus curiae briefs

in numerous lawsuits involving Section 404 and wetlands. A

more detailed statement of the interests of amici curiae is set Out

as Appendix A to this brief.

SUMMARY OF ARGUMENT

The district court properly enjoined respondent from con-

ducting unpermitted filling in an area that clearly meets the

definition of “wetlands” implemented by the Army Corps of

Engineers and the Environmental Protection Agency. The

court of appeals incorrectly reversed by relying on a reading of

that definition that is totally at odds with its plain meaning.

The regulatory definition of wetlands is consistent with

congressional intent that Section 404 of the Clean Water Act

extend to wetlands of the type at issue here, regardless of

3

traditional standards of navigability. In 1977 Congress specifi-

cally reconsidered the jurisdictional limits of Section 404 and

consciously refrained from narrowing those limits, thus reaf-

firming the statute’s purpose of protecting wetlards because of

the important functions they serve. The regulatory definition is

also scientifically valid and encompasses areas most likely to

perform the congressionally desired functions.

The court of appeals’ reliance on the Just Compensati: ...

Clause to narrow the jurisdictional scope of Section 404 is

completely misplaced. That some takings may occur under

Section 404 does not render the statute or its implementing

regulations invalid. Instead, the Commerce Clause provides the

proper test of Congress’ constitutional authority to regulate the

filling of wetlands. The significant contribution to interstate

commerce made by wetlands is lost upon their destruction. A

regulatory effort to control this destruction is well within

Congress’ plenary power to regulate interstate commerce.

ARGUMENT

I. THE DISTRICT COURT PROPERLY ENJOINED

FILLING ACTIVITY WITHIN AREAS OF RIVER-

SIDE’S TRACT THAT MEET THE REGULATORY

DEFINITION OF WETLANDS.

Section 301(a) of the Clean Water Act prohibits “the

discharge of any pollutant” except i compliance with specified

sections of the Act. 33 U.S.C. 1311(a). One of the specified

sections is Section 404 which authorizes the Secretary of the

Army to issue permits “for the discharge of dredged or fill

material into the navigable waters ....” 33 U.S.C. 1344(a).

The term “pollutant” is defined by the Act to include materials

such as “dredged spoil, solid waste, . . . rock, sand, [and] cellar

dirt....” 33 U.S.C. 1362(6). The Act defines “navigable

waters” to mean “waters of the United States... .” 33 U.S.C.

1362(7).

The Secretary of the Army has designated the Army Corps

of Engineers (Corps) as the agency responsible for issuing

4

permits under Section 404. The United States Environmental

Protection Agency ( EPA) also has certain Section 404 responsi-

bilities, including the “ultimate administrative authority to

determine” the meaning of “waters of the United States” under

that Section. 43 Op. Att’y Gen. No. 15, at | (Sept. 5, 1979).

Both the Corps and EPA interpret “waters of the United

States” to include wetlands. 33 C.F.R. 323.2(a) and (c)

(1984) (Corps); 40 C.F.R. 230.3(s) and (t) (1984) (EPA).

This case arose from the failure of the respondent Riv-

erside Bayview Homes, Inc. ( Riverside ) to obtain a Section 404

permit before discharging fill material into wetlands located in

Michigan near Lake St. Clair. The United States brought this

action to enjoin those unpermitted activities.

The district court held seven days of hearings and visited

the site primarily to determine whether the Riverside tract

contained a wetland. The court relied upon Section 404

regulations promulgated by the Corps that defined “freshwater

wetlands” to include areas “periodically inundated” and “char-

acterized by . . . vegetation” requiring saturated soil ccnditions.

40 Fed. Reg. 31324-31325 (July 25, 1975), formerly codified at

33 C.F.R. 209.120(d)(2)(i)(A), quoted at Pet. App. 23a. The

district court found that the Riverside tract meets the terms of

this definition and enjoined further unpermitted filling ( Pet.

App. 22a-3la).

By the time of Riverside’s initial appeal, the Corps had

revised its definition of wetlands ihrough regulations promul-

gated in 1977. The court of appeals remanded the appeal for

reconsideration in light of the new definition. On remand the

district court reaffirmed its earlier decision ( Pet. App. 42a-44a).

The Corps’ 1977 definition remains in effect today and has

been adopted in identical form by EPA. It reads:

The term “wetlands” means those areas that are

inundated or saturated by surface or ground water at

a frequency and duration sufficient to support, and

that under normal circumstances do support, a preva-

lence of vegetation typically adapted for life in

5

saturated soil conditions. Wetlands generally include

swamps, marshes, bogs and similar areas.

33 C.F.R. 323.2(c) (Corps) and 40 C.F.R. 230.3(t) (EPA).

The Record compiled in the district court demonstrates that

Riverside’s tract contains a wetland within the meaning of the

Corps’ and EPA’s present definitions.

The wetland on Riverside’s site is characterized by plants

such as cattails, sedge, duckweed, and common reed (J.A.

28,33,55,59, and 75; Tr. Jan. 15, 1977 at 14 and 21). These

species are recognized as “typically adapted for life in saturated

soil conditions,” 33 C.F.R. 323.2(c), in that they require or are

tolerant of water-logged or highly saturated soils. U.S. Army

Engineer Waterways Experiment Station, Preliminary Guide to

the Onsite Identification and Delineation of the Wetlands of the

Interior United States 9-12 and Al-Al0 (1982) (hereafter

“Preliminary Guide to Wetlands”); U.S. Fish & Wildlife

Service, Classification of Wetlands and Deepwater Habitats

of the United States 3 (1979) (hereafter “Classification of

Wetlands”’).

Moreover, these plants on the Riverside tract live in an

area that is “inundated or saturated by surface or ground

water.” The tract is occasionally flooded (Pet. App. 28a-29a;

J.A. 118) and was covered by ice at the time of the January

1977 hearing (J.A. 47-48). More importantly the tract is

saturated by ground water as demonstrated by a water table

within inches of the surface and a soil type (called Lamson)

which is highly retentive of water (J.A. 21 and 112; Tr. Jan. 21,

1977 at 163).

The ground water saturation is of a “frequency and

duration sufficient to support” species adapted to “saturated

soil conditions,” namely, cattails, reeds, sedges, and similar

species found on the site. The area has been a wetland for

decades and is a part of a larger wetland area found on the

western shore of Lake St. Clair (located less than a mile from

the site) (J.A. 48 and 56; Tr. Jan. 15, 1977 at 155 and 158).

The tract is also inhabited by wildlife species such as muskrat

and long-billed marsh wrens (J.A. 41-42 and 55) which are

6

found almost exclusively in wetlands habitat. Harper & Row’s

Complete Field Guide to North American Wildlife 150 and 265

(Eastern ed. 1981).

Notwithstanding the wealth of evidence showing that the

tract is a wetland within the Corps’ present definition, the court

of appeals reversed, ruling that the site is not a wetland for

Section 404 purposes. The court of appeals’ analysis is not

entirely clear but the decision seems to rest on three grounds:

(1) the site does not meet the present regulatory definition of a

wetland (Pet. App. 8a-12a), (2) Congress probably did not

intend to include such an area within the geographic reach of

Section 404 (Pet. App. 13a-l6a and 20a-21la), and (3) in-

clusion of such an area within Section 404 would result in a

taking under the Fifth Amendment (Pet. App. | 3a-16a).

The first ground for the decision of the court below is

plainly wrong. The court of appeals focused its attention solely

on the portions of the 1977 definition referring to inundation

“at a frequency and duration sufficient to support, and that

under normal circumstances [does] support wetlands vegeta-

tion” (Pet. App. 10a quoting 33 C.F.R. 323.2(c) [brackets in

original]). In fact, the court fashioned its own test for

geographic jurisdiction, ruling that Section 404 applies only to

areas “frequently flooded by waters from adjacent

streams. ...” (Pet. App. 15a). Since, in the court’s view, the

wetland vegetation found on the site was not caused by

“frequent” inundation (see id. at 10a-l2a & n.3), the court

ruled that the area is not subject to regulation under Section 404

(id. at 12a and |5Sa-16a).

However, the court of appeals’ conclusion is completely at

odds with the plain meaning of the Corps’ definition. By its

express terms, the regulation encompasses wetland areas “in-

undated or saturated by surface or ground water” sufficient to

support vegetation capable of surviving “in saturated soil

conditions.” 33 C.F.R. 323.2(c) [emphasis added]. The

court’s requirement that wetlands must be “frequently flooded

by... adjacent streams” (Pet. App. 15a), regardless of the

contribution made to wetlands vegetation by saturation from

ground water and by saturated soil conditions, is contrary to the

;

language of the Corps’ definition. Nonetheless, the court of

appeals never explained or even acknowledged the regulatory

language that is inconsistent with the result it reached. '

When read as a whole, the regulation plainly includes the

Riverside tract as a wetland. Because Riverside failed to obtain

a Section 404 permit, the district court’s judgment for the

United States and injunction against further filling should have

been affirmed. However, to the extent the court of appeals’

decision may be read to implicitly cast doubt on the statutory or

constitutional validity of the regulatory definition of wetlands.

such issues are addressed in the following discussion.

Il. CONGRESS INTENDED THE GEOGRAPHIC REACH

OF SECTION 404 TO BE FREE OF TRADITIONAL

JURISDICTION LIMITS.

Section 404 was enacted into law as part of the Federal

Water Pollution Control Act Amendments of 1972 ( 1972 Act ),

33 U.S.C. 1251 et seqg., renamed the Clean Water Act in 1977.

The 1972 Act was born of the congressional perception that six

federal statutes passed in the previous 24 years 2 to protect the

aquatic environment “ha[d] been inadequate in every vital

aspect.”” Congressional Research Service, 95th Cong., Ist Sess.,

Legislative History of the Federal Water Pollution Control Act

Amendments (hereafter “Leg. Hist.”) Vol. 2 at 1425 (1973)

(Senate Committee Report).

' The court of appeals decision is also flatly contradicted by the Corps’

regulatory definition of “waters of the United States.” 42 Fed. Reg. 37144

(July 19, 1977) and 47 Fed. Reg. 31810-31811 (July 22, 1982), codified at

33 C.F.R. 323.2(a). Since 1977 the Corps’ definition of “waters of the United

States” has referred to types of wetlands such as “isolated” wetlands and

prairie potholes that have no clear surface water hydrologic connection to

traditional navigable waters. /d., see also 49 Fed. Reg. 39484 ( Oct. 5, 1984),

to be codified at 33 C.F.R. 330.5(a)(26)(ii) (defining “isolated” wetlands ).

EPA's definition of “waters of the United States” also includes such wetlands.

40 C.F.R. 230.3(s).

2 Water Pollution Control Act of 1948, ch. 758, 62 Stat. 1155; Federal

Water Pollution Control Act Amendments of 1956, ch. 518, 70 Stat. 498:

Federal Water Pollution Control Act Amendments of 1961, Pub. L. No. 87-

88, 75 Stat. 204; Water Quality Act of 1965, Pub. L. 89-234, 79 Stat. 903:

Clean Water Restoration Act of 1966, Pub. L. No. 89-753, 80 Stat. 1246:

Water Quality Improvement Act of 1970, Pub. L. 91-224, 84 Stat. 91.

8

One “vital aspect” was the lack of adequate enforcement.

Id. at 1423. All of the preceding legislation provided for some

form of federal enforcement authority but only one enforce-

ment action was brought between 1948 and 1972 and it was

largely a failure.? Jd. This abysmal record resulted in part from

restrictions imposed by these statutes on the geographic

jurisdiction of federal enforcement agencies. Under the pre-

1972 legislation, federal abatement suits were limited to cases

where it could be proved that discharges in one state endan-

gered health or welfare in another state. Abatement suits were

also limited to pollution of interstate, navigable-in-fact, or

coastal waters.

Congressional awareness of the jurisdictional limitation

and similar problems led to the creation of a completely new

Act in 1972 intended to provide a clean break with past

outmoded and ineffective legislative approaches.5 The very first

sentence of the new Act announced Congress’ ambitious aim to

provide effective federal protection of America’s aquatic

environment:

The objective of this Act is to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.

33 US.C. 1251(a). The House Committee further amplified

this goal by explaining that the word “integrity” was intended

3 The case concerned sewage disposal by a midwestern city. After six

years of enforcement effort the city was still treating only half of its sewage

and dumping more than five million tons of raw sewage per day. 2 Leg. Hist.

1423.

4See note 2 supra. 1948 Act, §§ 2(d) and 3(e); 1956 Act §§ 8 and

Life); 1961 Act §§ 8 and 8(f)(2), see 2 [1961] US. Code Cong. & Ad.

News 2082-2084 (House Committee Report) (definition of “navigable

waters”). For more detailed discussion of the inadequacies of pre-!972

legislation see D. Zwick & M. Benstock, Water Wasteland (1971); Wenner,

Federal Water Pollution Control Statutes in Theory and Practice, 4 Envt'l

Law 251 (1974).

5 Sections 10 and 13 of the Rivers and Harbors Act of 1899, 33 U.S.C.

403 and 407, were also in force in 1972. The geographic jurisdiction of both

is limited to waters navigable-in-fact. See The Daniel Ball, 77 U.S. (10

Wall.) 557, 563 (1870); see also Want, Federal Wetlands Law: The Cases

and the Problems, 8 Harv. Envt'l L. Rev. |, 5-8 (1984).

9

to refer to “a condition in which the natural structure and

function of ecosystems is maintained.” | Leg. Hist. 763 [empha-

sis added]. An additional goal states that the Act is intended to

provide “for the protection and propagation of fish, shellfish,

and wildlife... .” 33 U.S.C. 1251(a){2).

Congress’ use of these terms to describe the purposes of the

1972 Act suggests legislative awareness that a scientific

approach would be necessary to solve a scientific problem.

Such a view is consistent with Congress’ approach to geo-

graphic jurisdiction in the 1972 Act which thoroughly de-

molished the traditional notion that federal regulatory authority

should be limited to interstate or navigable-in-fact waters. The

term “navigable waters,” which states the geographic reach of

the 1972 Act, including Section 404, is expressly defined in the

statute to mean “waters of the United States,” without quali-

fication. 33 U.S.C. 1362(7). By this latter phrase Congress

meant to include “ail ‘the waters of the United States’ in a

geographical sense.” | Leg. Hist. 250 (Remarks of Rep.

Dingell) [emphasis added]. The geographic jurisdiction of the

1972 Act is to be bounded only by the limits of Congress’

constitutional power:

The conferees fully intend that the term “navigable

waters” be given the broadest possible constitutional

interpretation. . . .

| Leg. Hist. 327 (Conference Report).

The lesson of the previous 24 years of federal legislation

was not lost on Congress. Natural aquatic systems pay no

attention to state lines or the ability of a water body to float

goods in commerce. Instead, as noted by the Senate Public

Works Committee: “Water moves in hydrologic cycles and it is

essential that discharge of pollutants be controlled at the

source.” 2 Leg. Hist. 1495. Thus the geographic reach of the

1972 Act must be viewed in terms of the natural functions of

aquatic ecosystems subject only to the limits of Congress’ power

to regulate interstate commerce.

10

Section 404’s regulation of discharges of dredged or fill

material into “navigable waters” also reflects this congressional

intent. Congress is presumed to have intended that the term

“navigable waters” have the same broad meaning throughout

the Act. See Colautti v. Franklin, 439 U.S. 379, 392-393 & n.i0

(1979): 2A C. Sands, Statutes and Statutory Construction

§ 47.07 (4th ed. 1984 rev.). Thus, the express definition of

“navigable waters” to mean “waters of the United States,” 33

U.S.C. 1362(7), applies with equal force to Section 404.

Indeed, Section 404 is woven into the fabric of the 1972

Act and its goals. As stated in Section 301( a), the heart of the

Act’s regulatory mechanism,

[e]xcept as in compliance with this section and

sections 302, 306, 307, 318, 402, and 404..., the

discharge of any pollutant by any person shall be

unlawful.

33 US.C. 1311(a) [emphasis added]. Violations of Section

301, and hence of Section 404, are punishable by civil and

criminal penalties under Section 309, 33 U.S.C. 1319, the

general enforcement provision for the Act. Therefore Congress’

articulated effort to create broad geographic jurisdiction,

coextensive with the Commerce Clause and consistent with

scientific knowledge of ecosystem functions, applies to Section

404 as well as the rest of the 1972 Act.

Although the Corps of Engineers originally limited the

Section 404 permit program to traditionally navigable waters,

both the EPA and the Department of Justice read the 1972 Act

and Section 404 to eliminate such historic limitations. See

Want, Federal Wetlands Law: The Cases and the Problems, 8

Harv. Envt'l L. Rev. 1, 10-11 & n. 90 (1984). The courts

agreed with EPA and the Justice Department and in 1975 the

Corps was ordered to discard the traditional tests of navigabi-

lity for geographic jurisdiction under Section 404. Naturai

Resources Defense Council v. Callaway, 392 F. Supp. 685, 686

(D.D.Cc. 1975). Later that year the Corps complied,

promulgating the regulatory definition of “freshwater wet-

lands” initially involved in the present suit. 40 Fed. Reg.

31324-31325.

lil. THE 1977 LEGISLATIVE HISTORY DEMON-

STRATES A CONTINUED LEGISLATIVE COM-

MITMENT TO SECTION 404’s GEOGRAPHIC

JURISDICTION ESPECIALLY WITH REGARD TO

WETLANDS.

In 1977 Congress revisited the 1972 Act. At that time

efforts were made to amend Section 404 so that its geographic

jurisdiction would be limited to waters navigable-in-fact, tidal

waters, and wetlands adjacent thereto. Congress’ rejection of

those efforts underscores the legislative commitment to broad

jurisdiction for Section 404, recognizing the natural functions of

aquatic ecosystems, especially wetlands.

During the course of these legislative proceedings, oppo-

nents of amendments to reduce Section 404’s geographic

jurisdiction sought to persuade their colleagues by extolling the

many valuable environmental functions performed by wet-

lands. The Senate Public Works Committee reported a bill to

amend the 1972 Act in several respects but retaining intact

Section 404’s geographic jurisdiction. Members of the Com-

mittee, such as Senator Baker, defended continued Section 404

jurisdiction over wetlands by describing the many values of

wetlands:

As you know. wetlands are a priceless, multiuse

resource. They perform the following services:

First, high yield food sources for aquatic ani-

mals;

Second, spawning and nursery areas for com-

mercial and sports fish;

Third, natural treatment of waterborne and air-

borne pollutants;

Fourth, recharge of ground water for water

supply:

Fifth, natural protection from floods and storms;

and

Sixth, essential nesting and wintering areas for

waterfowl.

12

We should be mindful of the fact that when

these areas are polluted out of existence, we will have

lost the very valuable free service of nature; and if

toxic-laden dredged or fill material is discharged into

wetlands, we risk poisoning the very foundation of

our aquatic system.

4 Leg. Hist. 923. (Debate on Senate bill). Other Committee

members including Senators Stafford, Chafee, and Hart echoed

this argument. /d. at 881-882, 917, and 927 ( Debate on Senate

bill). Senator Muskie, a member of the Committee as well as

principal sponsor of the 1972 Act and floor manager of the

1977 bill, made a similar argument, describing wetlands as

some of “the Nation’s most biologically active areas.” Jd. at

869-870 ( Debate on Senate bill).

Although an amendment limiting Section 404’s geographic

scope passed the House, opponents of that effort espoused these

same values. For example, Representative Lehman argued that

Section 404

is a key to the protection of drinking supplies, finfish

and shellfish spawning grounds, wildlife nesting and

breeding areas, and countless aesthetic and recrea-

tion benefits that are enjoyed throughout the Nation.

Furthermore, wetlands provide free of charge $140

billion worth of flood protection and water purifica-

tion services, according to the clean water action

project. Such priceless natural resources should be

given Federal protection from development and de-

struction.

Id. at 1317 (Debate on House bill). Representative Bonior,

whose District includes Riverside’s wetlands, invoked similar

arguments in support of broad Section 404 jurisdiction. Jd. at

1320 (Debate on House bill); see also id. at 1247 (House

Committee Report, Additional Views of Reps. Edgar and

Myers). These arguments carried the day as Congress

amended Section 404 in several respects but refrained from

altering the Section’s geographic scope enacted in 1972.

The 1977 legislative history is of particular significance in

this case because Congress was consciously responding to

13

judicial decisions such as NRDC v. Callaway, supra, that had

rejected the traditional navigability standards and applied

Section 404 to wetlands. The Committee Report accompanying

the House bill seeking to reduce Section 404 jurisdiction

referred directly to NRDC v. Callaway. 4 Leg. Hist. 1216.

Senator Bentsen proposed a similar amendment on the Senate

Floor, arguing that the “scope of [Section 404] jurisdiction as

defined by the courts” was inconsistent with Congress’ original

intent in 1972. Jd. at 903.

In debate on the Conference Committee bill that left

Section 404’s jurisdiction intact, Representative Don H. Clau-

sen reminded his colleagues that

[a] full understanding of [the 1972 Act] can only be

achieved by having an understanding of the case law

interpreting the public law.

3 Leg. Hist. 374. Representative Clausen also referred in these

remarks to a Library of Congress publication entitled “Case

Law Under the Federal Water Pollution Control Act Amend-

ments of 1972.”6 This document discusses (id. at 84-88)

NRDC v. Callaway, supra, and other cases reaching similar

conclusions on the scope of Section 404. Representative

Clausen’s statement and the Library of Congress litigation

summary to which he referred demonstrate congressional

awareness of the 1972 Act’s meaning as construed by the courts.

Chemical Manufacturers Ass’n v. NRDC, 1058S. Ct. 1102, 1109

& n. 17 (1985). Congress was clearly conscious that it was

rejecting an effort to legislatively overrule that case law. See id.

In this context the view of a later Congress on an earlier

enactment has “persuasive value” because

“[h]ere we have Congress at its most authoritative,

adding complex and sophisticated amendments to an

already complex and sophisticated act. Congress is

not merely expressing an opinion . . . but is acting on

what it understands its own prior acts to mean.”

Bell v. New Jersey, 461 U.S. 773, 784-785 & n. 12 (1983),

quoting Mount Sinai Hosp. v. Weinberger, 517 F.2d 329, 343

6 House Public Works and Transportation Committee Print 95-35.

14

(Sth Cir. 1975). Thus Congress clearly intended the phrase

“navigable waters” in the 1972 Act to include, without regard

to artificial geographic limitations, the vast multitude of wet-

lands so beneficial to society. See Minnehaha Creek Watershed

Dist. v. Hoffman, 597 F. 2d 617, 626 (8th Cir. 1979) ( applying

1977 legislative history to determine regulatory scope of Section

404 as originally passed ).

The 1977 legislative history clearly demonstrates that

Section 404 applies to wetlands. Remarks praising the valuable

biological and hydrologic contributions of wetlands, particu-

larly when made during debate over geographic jurisdiction,

cannot be squared with artificial geographic limits such as the

traditional navigability test.

Moreover, the 1977 legislative history’s recognition of

wetlands values is entirely consistent with the 1972 Act’s goals

of “restor|ing] and maintain[ing] the chemical, physical, and

biological integrity of the Nation’s waters[,]” and “the protec-

tion and propagation of fish, shellfish, and wildlife... .” 33

U.S.C. 1251(a) and (a)(2). This theme is echoed by Section

404(c) of the 1972 Act, which provides the Administrator of

EPA with final authority to preclude discharge of dredged or

fill material into sites where there will be “an unacceptable

adverse effect on... shellfish beds and fishery areas ( including

spawning and breeding areas)...[and] wildlife....” 33

U.S.C. 1344(c). The remarks of Senator Baker, Representative

Lehman, and others during the 1977 debates demonstrate that

Congress was well aware of the contributions wetlands make

toward these goals.

Finally, congressional support for broad geographic

jurisdiction is reflected in one of the amendments to Section 404

that Congress did pass in 1977. The addition of subsection (g)

to Section 404 thoroughly repudiates any limitation of the

Section to waters navigable-in-fact. Section 404(g) provides

for state assumption of the Section 404 program under certain

conditions. However, Section 404(g)(1) expressly excludes

state assumption of jurisdiction over traditionally navigable and

tidal waters, “including wetlands adjacent thereto...” 33

U.S.C. 1344(g)(1) [emphasis added]. Thus Congress not

15

only used the word “wetlands” in Section 404 but aiso ex-

pressed its intent that the Section’s geographic reach extend

beyond traditional navigable waters. Had Congress intended to

limit Section 404 to traditionally navigable waters in the first

place, provision for state assumption of regulation over all other

wetland areas would be meaningless because there would be

nothing to assume. Section 404’s geographic scope must be

construed to avoid rendering Section 404(g) meaningless or

superfluous. See Reiter v. Sonotone Corp., 442 U.S. 330, 338-

339 (1979).

IV. THE REGULATORY AGENCIES’ DEFINITIONS OF

“WETLANDS” FULFILL CONGRESSIONAL INTENT

BY IDENTIFYING WETLAND AREAS LIKELY TO

PERFORM FUNCTIONS CONGRESS CONSIDERED

TO BE VALUABLE.

Section 404 must be interpreted “in light of the purposes

Congress. sought to serve.” Chapman v. Houston Welfare Rights

Org., 441 U.S. 600, 608 (1979). Those purposes are reflected in

the 1972 Act’s removal of artificial barriers to geographic

jurisdiction and the 1977 legislative history demonstrating

congressional intent to protect wetlands because of the valuable

functions they may perform. Significantly, Congress has never

expressed any intent to limit the types of wetlands to which

Section 404 should be applied. Therefore, as far as geographic

jurisdiction is concerned, Section 404 should be interpreted to

achieve Congress’ purposes by extending to all areas that are

likely to perform wetland functions.

The regulatory definition of wetlands must be scientifically

valid to meet the 1972 Act’s goal of maintaining and restoring

the integrity of ecosystem functions. Scientific accuracy also

ensures that the definition includes areas that may perform

wetlands functions Congress considered to be valuable. Limita-

tions on Section 404’s geographic jurisdiction that are unrelated

to the identification of wetlands areas and that ignore the way

in which wetland ecosystems function must be rejected as

contrary to congressional intent. Judged by these standards, the

Corps’ and EPA’s definition of wetlands is consistent with

Congressional intent while the court of appeals’ requirement of

“frequent flooding” ( Pet. App. 15a) is not.

lo

To a scientist, “wetlands” are essentially those areas where

life can survive in a saturated environment. According to the

United States Fish and Wildlife Service,

wetlands are lands where saturation with water is the

dominant factor determining the nature of soil devel-

opment and the types of plant and animal commu-

nities living in the soil and on its surface. The single

feature that most wetlands share is soil or substrate

that is at least periodically saturated with or covered

by water. The water creates severe physiological

problems for all plants and animals except those that

are adapted for life in water or in saturated soil.

U.S. Fish & Wildlife Service, Classification of Wetlands, supra,

at 3.7 The primary factors influencing wetland areas are the

extent and duration of water present. As a result, life existing in

such areas must be tolerant of or dependent upon saturated

conditions to survive. Therefore, one of the most accurate

approaches to identifying wetlands is to rely upon the presence

of life forms that require or are tolerant of areas covered by or

saturated with water.

The identical definitions of “wetlands” adopted by the

Corps and the EPA for purposes of Section 404 regulation use

this approach. These definitions appropriately focus on

“areas ... inundated or saturated by surface or ground water at

7 The US. Fish and Wildlife Service is responsible for administering the

National Wetlands Inventory, see Section 208(i)(2), 33 U.S.C. 1288(1)(2),

designed to use the Service's biological expertise to provide scientific informa-

tion on wetlands characteristics as well as to indicate the extent of such areas

in the United States. U.S. Fish & Wildlife Service, Wetlands of the United

States: Current Status and Recent Trends | (1984). The information is

intended to provide technical assistance to agencies regulating activities in

wetlands. /d.; see 33 U.S.C. 1288(1).

8 EPA shares Section 404 permit responsibility with the Corps. EPA has

ultimate authority in permit decisions by virtue of its power to veto permits

issued by the Corps. Section 404(c), 33 U.S.C. 1344(c). In addition, EPA

has authority to bring an enforcement action against any unpermitted

discharge of dredged or fill material into wetlands. Sections 301( a), 309(b)

and (c), 33 US.C. 1311(a), 1319(b) and (c).

17

a frequency and duration sufficient to support . . . a prevalence

of vegetation typically adapied for life in saturated soil

conditions.” 33 C.F.R. 323.2(c)(Corps) and 40 C.F.R.

230.3(t)(EPA). Thus, the “prevalence of vegetation” capable

of surviving “in saturated soil conditions” is the focus of

identifying wetlands for Section 404 regulatory purposes.

These species of vegetation have been catalogued and there is

widespread scientific agreement on their identity. See e.g.

Preliminary Guide to Wetlands, supra; Classification of Wet-

lands, supra.

Wetlands may be formed by a variety of water sources

including surface runoff, ground water tables, and water body

overflow. M. Weller, Freshwater Marshes: Ecology and Wild-

life Management 11-13 (1981) (hereafter “Weller”). The

presence of enough water to create physiological stress for

nonadaptive life forms is important. The source of the water is

not. See Classification of Wetlands, supra, at 3. As a result

there is no scientific basis for requiring a “hydrologic con-

nection” between a wetland and nearby water bodies to create

Section 404 jurisdiction. The regulatory definitions correctly

avoid such a purely artificial limitation, stating that the “in-

undat[ion] or saturat[ion]” that supports wetland vegetation

may be caused “by surface or ground water[,]” regardless of

the source of that water. 33 C.F.R. 323.2(c) and 40 C.F.R.

230.3(t).

Finally, wetlands are dynamic areas that result from the

interaction of climatic, geologic, hydrologic, and biologic pro-

cesses. Gosselink & Turner, The Role of Hydrology in

Freshwater Wetland Ecosystems, in Good, et al. (eds. ), Fresh-

water Wetlands: Ecological Processes and Management Poten-

tial 64 (1978). A wetland area may fluctuate in size over time

depending upon factors such as the amount of water available.

McCormick, Ecology and the Regulation of Freshwater Wet-

lands, in id. at 353-354; Weller, supra, at 55. Any scientifically

valid demarcation of wetlands must acknowledge the dynamic

nature of wetlands because an area may presently provide

wetland values even if it did not in the past. The Corps’

preamble to the present regulatory definition of wetlands

properly takes this fact into account: “Our intent under Section

18

404 is to regulate discharges of dredged or fill material into the

aquatic system as it exists, and not as it may have existed over a

record period of time.” 42 Fed. Reg. 37128 (July 19, 1977).

This conforms to Congress’ recognition that “|e ]cosystems

themselves are dynamic, changing things.” | Leg. Hist. 764

(House Committee Report on 1972 Act).

Therefore the regulatory definitions of wetlands for Section

404 purposes are consistent with congressional intent because

they draw jurisdictional lines on the basis of ecosystem func-

tions and apply Section 404 to areas likely to provide the kind

of values identified by Congress in the 1977 legislative history.

In fact, the agencies’ approach to defining wetlands was noted

with approval during the 1977 debates: “The location of a

coastal marsh by using the aquatic vegetation line accurately

identifies most marsh areas.” 4 Leg. Hist. 922 ( Remarks of Sen.

Baker ).

V. THE DECISION OF THE COURT BELOW IMPOSES

AN ARTIFICAL JURISDICTIONAL LIMITATION ON

SECTION 404 THAT EXCLUDES WETLANDS THAT

CONGRESS INTENDED TO REGULATE.

Measured by the standards of congressional intent and

scientific validity, the decision of the court below is incorrect.

The Riverside tract clearly contains a wetland as demonstrated

by the prevalence of plant species that require or are tolerant of

saturated conditions and the abundant presence of wetland

animal species such as the muskrat and long-billed marsh wren.

Nonetheless the court of appeals excluded the site from the

coverage of Section 404 because it is not “frequently flooded by

waters from adjacent streams” ( Pet. App. 15a).

This newly-invented standard imposes a completely arti-

ficial, nonscientific limitation on the geographic reach of Section

404. Such a result flatly contradicts Congress’ weil expressed

intent that the 1972 Act's jurisdiction should recognize the

existence of natural ecosystems and that Section 404 should

apply to wetlands because those areas perform valuable

functions.

Many types of wetlands that would not meet the court of

appeals’ standard nonetheless perform functions discussed in

° De me

19

the 1977 legislative history. For example, the Northern Great

Plains contain approximately three million acres of “prairie

pothole” wetlands formed by glacial depressions in a relatively

flat landscape. U.S. Fish & Wildlife Service, Wetiands of the

United States: Current Status and Recent Trends 42 ( 1984)

( hereafter “Wetlands of the United States”). Although few of

these wetlands are frequently flooded by adjacent streams they

provide significant wetland functions. /d.; Weller, supra, at 7-9

and 12. Prairie potholes constitute only one-tenth of North

America’s waterfowl breeding area but produce half of the

annual duck crop and provide substantial flood control func-

tions, retaining up to 75% of surface runoff. Wetlands of the

United States, supra, at 22 and 42-43. Many prairie potholes

also contribute to groundwater recharge. /d. at 23.

Alaska’s 100 million acres of tundra wetlands are the result

of snowmelt and the thawing of permafrost substrate. Weller,

supra, at 10; Office of Technology Assessment, Wetland Use

and Regulation: Alaska Case Study 2-2 and 2-3 (1983).

Frequent flooding by adjacent streams plays little or no part in

the hydrology of these wetlands. Yet tundra wetlands provide

nesting and breeding habitat for millions of ducks, geese, other

waterfowl, and shorebirds which migrate to Alaska each year.

Id. at iti, 2-6 and 2-7. Caribou herds depend on vast areas of

wet tundra not only for calving grounds but also for migratory

range which prevents depletion of their lichen food supply. /d.

at iii and 2-6 through 2-8.

Similarly the 2.2 million acres of pocosin wetlands in

North Carolina are formed by ground water and rainfall, not

flooding by adjacent streams. C. Richardson, Pocosin Wet-

lands 5 (1981) (hereafter “Richardson”). These forested

wetlands provide habitat for many animal species, including

coastal black bears, and contribute to the well-being of shellfish

and finfish nurseries. Wetlands of the United States, supra, at

49; Richardson, supra, 243-249.

Few if any of these wetlands fall within the court of

appeals’ narrow restriction on the geographic reach of Section

404. Nonetheless they are undoubtedly wetlands from a

scientific point of view and perform valuable wetlands func-

tions. These same functions stimulated Congress to include

20

wetlands within the scope of Section 404 as demonstrated by

the statements made in the 1977 legislative history.

The decision of the court below is also contrary to congres-

sional intent because it places scientifically unsound limits on

the jurisdictional reach of the 1972 Act. Even though the

vegetation on Riverside’s tract is characterized by species

adapted to waterlogged or highly saturated soils (such as

cattails, sedge, and common reed ), the court of appeals rejected

these indicators because their presence was not necessarily

caused by inundation from a nearby waterway ( Pet. App. | la-

12a and n. 3). The court of appeals never explained why this

hydrologic connection is required for an area to be a wetland

subject to Section 404. From a scientific point of view the

source of the water is irrelevant to the identification of a

wetland. Accordingly, the court of appeals’ implicit rejection of

ground water as a source of saturation is exactly the kind of

artificial distinction repudiated by Congress in the 1972 Act, as

expressed by the Senate Committee Report:

The Committee recognizes the essential link

between ground and surface waters and the artificial

nature of any distinction.

2 Leg. Hist. 1491.

The court of appeals was also incorrectly concerned with

possible previous uses of the tract, as if those somehow bear

relation to the existence of a wetland (Pet. App. 3a, |3a-14a,

and 21a). However, the fact that fire hydrants and storm

sewers may have been placed on the tract 70 years ago (and

never used ) does not prevent an area from being a wetland or

performing wetland functions, as demonstrated by the Record

in this case.? Also irrelevant is the remote possibility that the

area's wetland characteristics stem from manmade flood control

9 In fact Riverside’s proposed fill will render the storm sewers useless as

their openings will be several feet underground (Tr. Jan. 17, 1977 at 64).

Therefore the existence of these obsolete “improvements” should not logically

form a basis for denying federal jurisdiction over the filling activity.

21

structures. '® As noted above, wetlands are dynamic ecosystems

subject to fluctuation. Notwithstanding this trait, wetlands may

still be valuable. For example, some prairie potholes may dry

up entirely during some seasons and years. Weller, supra, at

55; Wetlands of the United States, supra, at 42-43. They are

nonetheless valuable habitat for waterfowl during wet years

and seasons. Therefore failure to include a wetland within

Section 404 “as it exists,” 42 Fed. Reg. 37128, at the time of

regulation constitutes still another artificial, nonscientific limita-

tion on jurisdiction. As such it is invalid.'' See United States v.

Ciampitti, 583 F. Supp. 483, 492-495 (D.N.J. 1984), appeal

pending, No. 85-5004 ( 3rd Cir.) ( rejecting prior uses of site as

bar to Section 404 jurisdiction ); Swanson v. United States, 600

F. Supp. 802, 807-809 (D. Idaho 1985), appeal pending, No.

85-3718 (9th Cir.) (manmade expansion of “navigable water”

subject to Section 404 jurisdiction ); cf. United States v. City of

Fort Pierre, 747 F.2d 464 (8th Cir. 1984).

VI. SECTION 404 REGULATION OF RIVERSIDE’S WET-

LAND IS WELL WITHIN CONGRESS’ CON-

STITUTIONAL AUTHORITY.

The court of appeals’ constitutional analysis (Pet. App.

13a-16a) completely ignores the fact that Congress intended

the Commerce Clause to provide the only limits on the geo-

graphic reach of Section 404 over wetlands. See | Leg. Hist.

327. Instead the court of appeals asserted that the Just

Compensation Clause dictates the narrow jurisdictional limita-

tions fashioned by the court.

A. The Just Compensation Clause Does Not Preclude

Congress’ Authority to Regulate Discharges Into

Wetlands.

The court’s only authority for its “taking” holding, Kaiser

Aetna v. United States, 444 U.S. 164 (1979), clearly upheld the

federal government’s Commerce Clause authority to assert

‘0 It is possible that the tract would be more frequently inundated but for

the system of dikes and drains in the vicinity (Tr. Jan. 15, 1977 at 156).

'' In any event Riverside’s tract has probably been a wetland for decades

(J.A. 56).

22

regulatory jurisdiction over the fish pond in question. It is true

this Court ruled that the United States’ efforts to require public

access to the fish pond would result in a taking under the

peculiar circumstances of that case. Jd. at 179-180. However,

before reaching that conclusion the Court expressly held that

the fish pond falls within “the boundaries of Congress’ regu-

latory authority under the Commerce Clause....” Jd. at 172

[emphasis added]. Therefore Kaiser Aetna’s taking holding

applies only to the issue of requiring public access to private

property, a point not raised by the present litigation. On the

issue that is raised here, the extent of Congress’ regulatory

authority under the Commerce Clause, the Court found no

taking and affirmed federal regulatory jurisdiction over the

pond. /d. at 172 and 174. The court of appeals’ reliance on

Kaiser Aetna to limit Congress’ Commerce Clause regulatory

authority is completely misplaced.

Indeed, by relying on the Just Compensation Clause to

limit Section 404’s geographic reach, the court of appeals ruled

in effect that Section 404 on its face constitutes a taking when

applied to wetlands not “frequentiy flooded by... adjacent

streams.” However, Congress’ power to regulate interstate

commerce is not limited by the Just Compensation Clause even

though the exercise of that power may occasionally result in a

taking, so long as the statute in question leaves available an

inverse condemnation action under the Tucker Act, 28 U.S.C.

1491. Ruckelshaus v. Monsanto Co., 104 §.Ct. 7862, 2880-2883

(1984); Hodel v. Virginia Surface Mining & Reclamation Ass'n,

452 US. 264, 297 n. 40( 1981). The assertion of Section 404

jurisdiction does not preclude Riverside from availing itself of

the Tucker Act. '?

12 This case is an enforcement action against an unpermutted discharge

Accordingly, the only jumsdictional issue should be the statutory and con-

stitutional authonty of the United States to require such a permit. Whether

the subsequent denial of Riverside’s application for a Section 404 permit was

lawful and constituted a taking requiring just compensation are issues

appropnately raised in separate litigation initiated by Riverside. Riverside

has apparently never contested the denial of the permit or pursued a Tucker

Act claim for compensation.

23

B. Congress’ Determination That Destruction of Wet-

lands Substantially Affects Interstate Commerce Has

a Rational Basis.

In view of Congress’ express intent that the term “navi-

gable waters” in the 1972 Act should “be given the broadest

possible constitutional interpretation,” | Leg. Hist. 327, the

geographic reach of Section 404 is coextensive with Congress’

authority to regulate interstate commerce.'? Therefore, the

appropriate constitutional analysis in this case is to determine

what limit, if any, the Commerce Clause places on Congress’

assertion of geographic jurisdiction over wetlands, an issue

completely ignored by the court below.

Clearly all wetland areas falling within the Corps’ and the

EPA's regulatory definitions of “wetlands” are well within the

Commerce Clause. Congress’ “plenary authority” to regulate

interstate commerce, United States v. Darby, 3\2 U.S. 100, 115

(1941), is “as broad as the needs of commerce.” United States

v. Appalachian Electric Power Co., 311 US. 377, 426 (1940).

This power is “complete in itself, may be exercised t its utmost

extent, and acknowledges no limitations, other than are pre-

scribed in the Constitution.” Gibbons v. Ogden, 22 US. (9

Wheat.) 1, 196 (1824). The Commerce Clause authority

extends not only to “the use of channels of interstate

or foreign commerce” and to “protection of the

instrumentalities of interstate commerce ... or per-

sons or things in commerce,” but also to “activities

affecting commerce.”

Hodel v. Virginia Surface Mining, supra, 452 U.S. at 276-277,

quoting Perez v. United States, 42 US. 146, 150 (1971).

When Congress elects to regulate an entire class of activities

that substantially affect interstate commerce, even purely in-

trastate activities fall within the federal power. Perez v. United

States, supra, 402 U.S. at 154. In such a case, “the courts have

no power ‘to excise, as trivial, individual instances’ of the class.”

Id. quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968).

"Sit is clear from Rep. Dingell’s remarks that Congress intended two

invoke its Commerce Clause authority in enacting the 1972 Act. | Leg Hist.

250-251 ( Debate on Conference bill )

24

“The task of a court that is asked to determine whether a

particular exercise of congressional power 1s valid under the

Commerce Clause is relatively narrow.” Hodel v. Virginia

Surface Mining, supra, 452 U.S. at 276. Congress’ determina-

tion that discharge of dredged or fill material into the Nation’s

wetlands substantially affects interstate commerce must be

upheld if there is “any rational basis for such a finding.” Jd;

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258

(1964). Section 404’s embrace of areas likely to perform the

valuable functions identified in the 1977 legislative history

clearly meets this test.‘

During the 1977 debates, Senator Stafford defended his

Committee’s retention of Section 404’s original geographic

reach by estimating that at least 300,000 acres of wetlands are

destroyed in the United States each year. 4 Leg. Hist. 882. A

more recent estimate put the figure at 450,000 acres. Wetlands

of the United States, supra, at 31. The 1977 legislative history

is replete with detailed references to the effects of this destruc-

tion ON Interstate commerce.

For example, Representative Lehman noted that wetlands

provide “$140 billion worth of flood protection and water

purification services....” 4 Leg. Hist. 1317. Senator Chafee

observed that 98 percent of Maine’s $50 million-per-year fish

harvest “was made up of species that depended upon the

wetlands for some part of their life cycle.” Jd. at 917. Congress

was also aware that wetlands make an enormous contribution

to wildlife and fisheries habitat. See id. at 881-882 ( Remarks

of Sen. Stafford ), 923 ( Remarks of Sen. Baker), 927 ( Remarks

of Sen. Hart), and 1320 ( Remarks of Rep. Bonior).

There is clearly a rational basis for the conclusion that

wetlands filling has a substantial effect on interstate commerce.

To take one example, the prairie potholes of the Northern

Great Plains make up “(t]he principal waterfowl breeding

grounds in the continental United States,” North Dakota v.

'* As demonstrated below, the filling of wetlands not only “affects”

interstate commerce. it does so substantially, fully as much as surface mining

of coal. See Hadel v. Virginia Surface Mining, supra, 452 US. at 307-313

( Rehnquist. J. concurnmng i judgment ).

25

United States, 460 U.S. 300, 304 (1983), and produce over

one-half of the newborn wild duck population every year.

Wetlands of the United States, supra, at 42. Waterfowl travel

annually along migratory corridors that encompass all or parts

of 49 states. F. Bellrose, Ducks, Geese & Swans of North

America 20-24 (1976). “The protection of migratory birds has

long been recognized as ‘a national interest of very nearly the

first magnitude.”” North Dakota v. United States, supra, 460

U.S. at 309, quoting Missouri v. Holland, 252 U.S. 416, 435

(1920).

The hunting of migratory birds, including waterfowl, is a

$638 million per year industry. U.S. Fish & Wildlife Service,

1980 National Survey of Fishing, Hunting, and Wildlife-

Associated Recreation 70 (hereafter “Wildlife Survey”). Ap-

proximately 421,000 hunters annually cross state lines to hunt

migratory birds. /d. at 88. Millions of dollars are spent each

year to purchase equipment such as field guides and binoculars

for use in observing and photographing waterfow! in the

United States.'5 Jd. at 108 and 114. Obviously the destruction

of “essential nesting and wintering areas for waterfowl,” 4 Leg.

Hist. 923 ( Remarks of Sen. Baker), could substantially burden

interstate commerce by affecting these expenditures. See Utah

v. Marsh, 740 F.2d 799, 804 (10th Cir. 1984) (intrastate lake

subject to Section 404 regulation because it provides habitat for

migratory waterfowl ).

As another example, the destruction of portions of the

remaining 2.2 million acres of North Carolina’s pocosin wet-

lands increases freshwater runoff into saltwater and brackish

estuarine systems. Richardson, supra, at 243-249. This destruc-

tion upsets the salinity balance in these systems which destroys

their usefulness as shellfish and finfish nurseries. Jd North

Carolina’s coastal fishing industry generates an estimated $300

million in revenues per year and is dependent upon these

estuarine nurseries. /d. at 238-239.

'S Nineteen millon people observed, photographed, or fed wild water-

fowl in 1980. Wildlife Survey, supra, at 108. That same year approximately

$97 million was spent on field guides and binoculars primarily for the

observation of wildlife. Jd at 114.

26

These examples cover only a narrow portion of the impacts

on interstate commerce resulting from the destruction of wet-

lands “essential to the preservation of migratory and resident

fish, bird and other animal populations. ...” 4 Leg. Hist. 881-

882 (Remarks of Sen. Stafford). The wildlife habitat impacts

alone demonstrate the rational basis for Congress’ determina-

tion that interstate commerce 4 adversely affected by the

destruction of wetlands. The impacts on air and water quality

and flood control, in combination with habitat destruction,

clearly show that elimination of wetlands substantially affects

interstate commerce. See Hodel v. Virginia Surface Mining,

supra, at 277-280. As this Court ruled in Hodel, “ the power

conferred by the Commerce Clause [is] broad enough to

permit congressional regulation of activities causing air or water

pollution, or other environmental hazards that may have effects

in more than one State.” /d. at 282 ( footnote omitted ).

In addition it is a classic exercise of Commerce Clause

power to enact federal legislation imposing minimum standards

on commercial activity to protect states that regulate the activity

from competition with those states that do not. United States v.

Darby, supra, 312 U.S. at 115. Prevention of industrial “forum

shopping” is appropriate in the context of environmental

regulation. Hodel v. Virginia Surface Mining, supra, 453 U.S.

at 281-282.

Concern with this sort of “ecological blackmail,” | Leg.

Hist. 869 (House Committee Report, Additional Views of

Reps. Abzug and Rangel ), clearly influenced enactment of the

1972 Act:

When states are confronted by competition for indus-

trial locations, water quality so often is the real loser.

| Leg. Hist. 433 (Testimony of League of Women Voters

inserted in the Record by Rep. Gude). The Governor of

Minnesota complained in House Committee testimony of “the

practice of playing off one state against the other.” Jd. at 452

es

27

( Testimony quoted in Remarks of Rep. Reuss); see D. Zwick

and M. Benstock, Water Wasteland 231 (1971).16

The forum shopping problem is an obvious concern in the

context of Section 404, particularly because 95 percent of the

Nation’s wetlands are inland wetlands which are not protected

by law in most states. Office of Technology Assessment,

Wetlands: Their Use and Regulation 187-188 (1984). Asser-

tion of federal jurisdiction over wetlands is well within Con-

gress’ power to regulate interstate commerce. See Hodel vy.

Virginia Surface Mining, supra, 452 U.S. at 281-282.

It is also clear that the Commerce Clause authority extends

even to wetlands that might be “intrastate” in character.

Wetlands that are not hydrologically connected to a tradition-

ally navigable water and that are completely contained in one

state may still exert a substantial effect on interstate commerce

as in the case of prairie potholes. Even though the filling of one

such wetland may seem local in nature, that “by itself is not

enough to remove [it] from the scope of federal regulation

where,” the impact, “taken together with that of many others

similarly situated, is far from trivial.” Wickard v. Filburn, 317

U.S. 111, 127-128 (1942). The destruction of 300,000 to

450,000 acres of wetlands per year can hardly be considered

trivial. Congress may properly consider all discharges of

dredged or fill material into wetlands to constitute, in com-

bination, a substantial impact on interstate commerce and

hence regulate them all. See United States v. Darby, supra, 3\2

US. at 123.

Therefore, Congress’ evident intent to adopt a regulatory

program with comprehensive geographic jurisdiction over wet-

lands is entirely consistent with the Commerce Clause. Since

Riverside’s tract indisputably falls within the regulatory defini-

tions, the discharge of dredged or fill material onto the site is

properly governed by Section 404. The court of appeals’

‘6 These concerns led to the 1972 Act's creation of national effluent

standards “so that industries wiil no longer be able to relocate to a community

of less stringent pollution standards. .. .” | Leg. Hist. 132 ( Remarks of Sen.

Williams ).

28

exclusion of the tract from this regulatory program is incorrect

as a matter of statutory interpretation and constitutional legisla-

tive authority.

CONCLUSION

For these reasons and those stated in the Brief of the 3

United States, the judgment of the court below should be

reversed.

Respectfully submitted,

Jerry JACKSON

National Wildlife Federation

1412 Sixteenth Street, N.W.

Washington, DC 20036

(202) 797-6827

Counsel of Record and

Attorney for Amici Curiae

FRANK J. KELLEY

Attorney General

Louis CARUSO

Solicitor General

State of Michigan

760 Law Building

Lansing, Michigan 48913

(517) 373-1110

May 1985

la

APPENDIX A

Detailed Statement of Interests

The National Wildlife Federation is a nonprofit member-

ship organization incorporated in 1939 under the laws of the

District of Columbia. The Federation maintains its headquar-

ters at 1412 Sixteenth Street, N.W., Washington, DC 20036

(telephone 202-797-6827). The Federation is the largest

nongovernmental conservation education organization in the

world, with affiliate organizations in 50 states and three terri-

tories. Its 4.1 million members and supporters are dedicated to

increasing public awareness of the need for wise use, proper

management, and conservation of our natural resources. The

Federation undertakes a comprehensive conservation education

program, distributes numerous periodicals and educational

materials, lobbies for the adoption of laws to protect and

improve the environment, and litigates when necessary to

conserve natural resources and wildlife. The Federation has

undertaken a wide range of legal, legislative, adm inistrative,

and educational initiatives aimed at improving the conservation

of wetlands and other wildlife habitat.

The State of Alaska contains as many as 200 million acres

of wetlands, including almost 100 million acres of tundr4.

Unlike most states, Alaska has retained most of its wetlands

intact. The people of Alaska depend on wetlands to support

wildlife habitat and fisheries. Because these valuable wetlands

are subject to development pressure, the State of Alaska

supports a strong federal regulatory program of wetlands

protection.

The American Fisheries Society is a nonprofit professional

society organized in 1870 to promote the conservation, devel-

opment and wise utilization of recreational and commercial

fisheries. The Society supports the conservation of wetlands

because such areas play a critical role in the well-being of many

fisheries. The Society has 8,300 members.

The Bass Anglers Sportsman Society (BASS) ts a non-

profit membership organization founded in 1968 to fight pollu-

tion and provide conservation education. BASS’s member

2a

sportsmen and 1500 affiliated local chapters are located in all

50 states. BASS’s members are committed to the preservation

of wetlands and water quality in order to maintain and enhance

the nation’s fishery resources.

The Chesapeake Bay Foundation, Inc., is a nonprofit

regional membership organization founded in 1966 to promote

the environmental welfare and proper management of Chesa-

peake Bay, including its tributaries. The Foundation accom-

plishes these goals through citizen representation, environmen-

tal education, and land preservation. The Foundation has

25,000 members.

The Environment Council of Rhode Island, Inc., is a

statewide nonprofit organization affiliated with the National

Wildlife Federation whose goals and objectives it shares.

The Environmental Defense Fund, Inc., is a nationwide

public interest organization of lawyers, scientists, and econo-

mists dedicated to protecting and improving environmental

quality and public health, The Fund pursues responsible

reform of public policy in a number of environmental fields

including water resources, land use, wildlife, and wetlands

conservation, working through research, public education, and

judicial, administrative, and legislative action. The Fund has

50,000 members including residents in all 5O states.

The Eavironmental Policy Institute is a nonprofit organiza-

tion that conducts research, education, lobbying, and litigation

on key energy and environmental laws. The Institute is

produces a periodic educational newsletter reporting on these

issues to concerned citizens across the country.

The State of Florida has a vital interest in protecting the

significant wetland resources found in Florida. Over 40 percent

of Florida’s original wetlands have been destroyed by human

activity. This loss has had a devastating effect on Florida’s

economy, causing increased flooding of property and decreased

catches in fisheries dependent upon wetlands. Although Flornda

3a

has enacted wetlands legislation, a strong federal regulatory

program is necessary to enhance State wetlands protection.

The Florida Audubon Society is a statewide nonprofit

organization founded in 1900 to provide an understanding of,

and an interest in wildlife, and in the environment that supports

it, and to further the cause of wildlife conservation.

The Florida Wildlife Federation is a statewide nonprofit

organization affiliated with the National Wildlife Federation

whose goals and objectives it shares.

The Louisiana Wildlife Federation is a statewide nonprofit

organization affiliated with the National Wildlife Federation

whose goals and objectives it shares.

The State of Michigan was the first state in the Nation to

assume responsibility for dredge and fill projects in waters

regulated under Section 404 of the Clean Water Act, 33 U.S.C.

1344, from the United States Environmental Protection Agency.

Michigan has a long history of concern for, and actions to

protect, its valued wetlands. Michigan is vitally interested in

the outcome because the controversy involves natural resources

located within the State of Michigan.

Michigan United Conservation Clubs, Inc., is a statewide

nonprofit organization affiliated with the National Wildlife

Federation whose goals and objectives it shares.

The National Audubon Society is a nonprofit national

membership organization dedicated to the conservation and

wise use of wetlands and other natural resources. Since the turn

of the century, National Audubon has been active in efforts to

protect migratory birds and their habitat, including wetlands.

National Audubon has over one-half million members in the |

United States and several foreign countries. These members

use the nation’s wetlands for birdwatching, fishing and other

recreational pursuits, and for scientific research. National

Audubon owns and manages a nationwide system of sanc-

tuaries totaling over 200,000 acres, many of which contain

wetland systems, which provide essential habitat for birds,

other wildlife and rare plants.

4a

The North Carolina Wildlife Federation is a statewide

nonprofit organization affiliated with the National Wildlife

Federation whose goals and objectives it shares.

Scenic Hudson, Inc. is a nonprofit, citizen’s conservation

group founded in 1963 to improve and preserve the natural,

recreational, historic and scenic resources of the Hudson River

Valley, including wetlands.

The Sierra Club is a nonprofit national membership or-

ganization founded in 1892 to promote the responsible use of

the earth’s ecosystems, to enjoy and protect the earth’s re-

sources, and to educate humanity in the need to protect and

restore the quality of the natural and human environment.

With approximately 336,000 members and 54 local chapters

coast to coast, the Sierra Club works on legislation, litigation,

public information, and outings to protect, understand, and

enjoy the natural environment.

The South Carolina Wildlife Federation is a statewide

nonprofit organization affiliated with the National Wildlife

Federation whose goals and objectives it shares.

The Tennessee Conservation League is a statewide

nonprofit organization affiliated with the National Wildlife

Federation whose goals and objectives it shares.

Trout Unlimited is a nonprofit international conservation

organization founded in 1959 and dedicated to the protection of

clean water and the enhancement of trout and salmon fishery

resources. Trout Unlimited has 32,000 members.

The Wildlife Federation of Alaska is a statewide nonprofit

organization affiliated with the National Wildlife Federation

whose goals and objectives it shares.

The Wildlife Management Institute is a national noaprofit

membership organization, supported by industries, groups, and

individuals, promoting better use of natural resources for the

welfare of the Nation. The Institute is particularly concerned

with the conservation of wetlands because of the importance of

this resource to wildlife habitat.

Sa

The Wisconsin Wildlife Federation, Inc. is a statewide

nonprofit organization affiliated with the National Wildlife

Federation whose goals and objectives it shares.