# Amicus Curiae Brief — United States v. Riverside Bayview Homes, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0360%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1985 - **Citation:** 474 U.S. 121 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0360%3A10. Public record. Not legal advice.