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

No. 84-701

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Orice- tip eme court, U

In the Supreme Court’ «++ *”

OF THE MAY @ 1s

United States

ALEXANDE® L STEVAS,

OcToper Term, 1984 CLERK

UNITED STATES OF AMERICA,

Petitioner,

Vv.

Riversipe Bayview Homes, INc., et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE

STATE OF CALIFORNIA, JOHN K. VAN DE KAMP, ATTOR-

NEY GENERAL OF CALIFORNIA, CALIFORNIA COASTAL

COMMISSION, SAN FRANCISCO BAY CONSERVATION

AND DEVELOPMENT COMMISSION, CALIFORNIA

COASTAL CONSERVANCY, AND THE STATES OF CON-

NECTICUT, HAWAII, ILLINOIS, LOUISIANA, MARYLAND,

MINNESOTA, MISSOURI, MONTANA, NEBRASKA, NEW

MEXICO, NORTH CAROLINA, RHODE ISLAND, TENNES-

SEE, VERMONT, WEST VIRGINIA, AND WISCONSIN

IN SUPRART OR BERERSAD

Attorney General of Califorma

N. Grecory TAYLOR

THEODORA BERGER

Assistant Attorneys Genera!

Steven H. KAUFMANN

Davip W. HAMILTON

COUNSEL OF RECORD)

Deputy Attorneys General

350 McAllister Street

6000 State Building

San Francisco, California 94102

(415) 557-2013

Attorneys for Amici State of California.

John K. Van De Kamp. Attorney Gen-

eral of California, California Coastal

Commission, San Francisco Bay Con-

servation and Development Commis-

sion, and California Coastal

Conservancy

BOWNE OF GAN FRANCISCO WC + 180 NINTH GT + SF CA 84108 + (415) 664 2900

Josern |. LIEBERMAN

Attorney General

State of Connecticut

MicHaet A. LILLY

Attorney General

State of Hawaii

New. F. HARTIGAN

Attorney General

Jict Wine-Banks

Solicitor General

State of Illinois

Witttiam J. Guste, Jr.

Attorney General

State of Louisiana

STEPHEN H. SAcHs

Attorney General

State of Maryland

Husert H. Humenrey, Ill

Attorney General

State of Minnesota

WiLtiaM L. WessTer

Attorney General

State of Missouri

Mike GREELY

Attorney General

State of Montana

Ropert M. Spire

Attorney General

State of Nebraska

PAUL BARDACKE

Attorney General

State of New Mexico

Lacy H. THORNBURG

Attorney Gencral

State of North Carolina

ARLENE VIOLE?

Attorney General

Rhode Island

W. J. Micnaet Copy

Attorney General and

Reporter

State of Tennessee

Jerrrey L. AMESTOY

Attorney General

State of Vermont

CHARLIE BROWN

Attorney General

State of West Virginia

BRONSON C. La FouLerre

Attorney General

State of Wisconsin

\

QUESTION PRESENTED

Whether the Corps of Engineers’ administrative interpretation

of its jurisdiction to regulate discharges into “adjacent wetlands”

under the Clean Water Act of 1977 properly embraces inundated

or saturated lands which support aquatic vegetation, but are not

necessarily “frequently flooded” by adjacent streams, lakes, or

seas.

TABLE OF CONTENTS

Page

PN Gc cencodecdsdcoeecddsonstedesseedens l

Ge SEED Sdvccccccdecdisonscdeunnceses 5

CE, 6 0. co scctenncncessecesdscodsenececetsesiuc 8

In the Exercise of its Commerce Clause Authority, Con-

gress Conferred on the Corps Broad Jurisdiction to Reg-

ulate the Discharge of Dredged and Fill Material Into

“Adjacent Wetlands” as Part of its Program to Effec-

tively Control Pollution of the Nation’s Waters ....... 8

A. The Corps’ Regulation of the Discharge of Dredged

and Fill Material in “Adjacent Wetlands” Is Well

Within the Scope of Congress’ Authority Under the

Commerce Clause, and Congress Clearly Intended

to Regulate Such Discharges .................. 9

1. Congress Has Broad Authority Under the Com-

merce Clause to Regulate Water Pollution

2. The Legislative History of the CWA Demon-

strates the Intent of Congress to Exercise Its

Fullest Authority Under the Commerce Clause 10

3. The Corps’ Definition Implements the Intent of

Ss en inc boeréeccécccesecess 15

B. The Sixth Circuit’s Narrow Interpretation of the

Corps’ Regulation Is Not Compelled by the Takings

Clause of the Fifth Amendment................ 17

II

The Court of Appeals Erred in Not Deferring to the Corps’

Treatment of “Adjacent Wetlands” As “Waters of the

United States” and in Substituting its Own Wetland Test

PN Ge GE vikcivctescctncocgdcescccecec: 22

TABLE OF AUTHORITIES

Cases

Page

Agins v. City of Tiburon, 447 U.S. 255 (1980) ......... 19, 21

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897

a i ha as de 8, 20, 22, 26

Buttrey v. United States,c,19, 21 690 F.2d 1170 (Sth Cir.

1982), cert. denied, 103 S.Ct. 2087 (1983) .......... 20

Chemical Mfrs. Ass’n v. NRDC, 105 S.Ct. 1102 (1985) 22

Chevron USA, Inc. v. NRDC, 104 S.Ct. 2778 (1984)... 22

Conservation Council of North Carolina v. Costanzo, 398

Fy EE, SOU cccccceccteccesscccee 12

The Daniel Ball, 77 U.S. (10 Wall) 557 (1870) ..... .. 11

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

1981), cert. denied, 455 U.S. 1017 (1982) ........... 20

Economy Light and Power Co. v. United States, 256 U.S.

Tie tcebese) hess cheudbusiddactesesooce 11

EPA v. California ex rel. State Water Resources Control

Board, 426 U.S. 200 (1976) ........ 6c cece cece ees 9

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

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

EG ne EE ETE ee ee ee 9

Hodel v. Indiana, 452 U.S. 314 (1981)................ 10

Hodel v. Virginia Surface Min. & Recl. Ass’n, 452 U.S. 264

DT teh ctu Deed dean nedeanene 9, 10, 16, 17, 18, 19, 20

Hoopengarner v. United States, 270 F.2d 465 (6th Cir.

Tiina ones ieee ete enneeunns 26

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

einumenadidncsvinonmdanedetbodsctcabeenoset 18, 20, 21

Leslie Salt Co. v. Froehike, 578 F.2d 742 (9th Cir. 1978) x

Maryland v. Wirtz, 392 U.S. 183 (1968) .............. 10

Minnesota v. Hoffman, 543 F.2d 1198 (8th Cir. 1976),

appeal dismissed, 430 U.S. 977 (1977) .............. §

iv

TABLE OF AUTHORITIES

CASES

Page

Penn Central Transp. Co. v. New York City, 438 U.S. 104

DED Ub dcbelesdchsnnbedibbekeedsoeaus Geadcceete 18

Perez v. United States, 402 U.S. 146 (1971) ........... 10

P.F.Z. Properties, Inc. v. Train, 393 F. Supp. 1370 (D.D.C.

Sete beddull dnebednecdeconcbadmaneeedsabecascse 12

Train v. Colorado Pub. Int. Research Group, 426 U.S. |

SET AGULELERUGRSESE LAEGER DASORSCSCLeOCEOREee 10

Train v. NRDC, 421 U.S. 60 (1975) ................. 22

State of Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) .. 8, 15

United States v. Appalachian Power Co., 311 U.S. 377

SD ckcbocceauudbesebhscéseubeuseiestesddesenes 11

United States v. Ashland Oil and T _nsp. Co., 504 [2d

EE DE cc endantd beheunedondeanens oé 11, 26

United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979)

eucdeunededodacvetddenhesencessiseesececeedwet 8, 15, 20

United States v. Central Eureka Min. Co., 357 U.S. 155

SED whedoedesblechedes HbiNsRSeeckaUNeasaeards 18

United States v. Ciampitti, 583 F. oon 483 (D.N.J. 1984) 20

United States v. Earth Sciences, Inc., 599 F.2d 368 (10th

Cir. 1979) .........eeeee indect visvabedendedebess 15

United States v. Holland, 373 F. Supp. 665 (M.D. Fla.

SUE Socedendecethuedessusncbsdusdasesoteveécose 12

United States v. Huebner, 752 F.2d 1235 (7th Cir. 1985) 24

United States v. Lambert, 695 F.2d 536 (11th Cir. 1983) 8

United States v. Riverside Bayview Homes, Inc., 729 F.2d

Se ED CE dni dheedcuduschacuteedanensess 5,6, 8

United States v. St. Bernard Parish, 589 F. Supp. 617 (E.D.

a etl ee N So eek oe eee saeeseat 15

v

TABLE OF AUTHORITIES

Page

Constitution

United States Constitution:

ET ED ee 9,15

ES 6, 7, 17, 18, 20, 21

Statutes and Regulations

Administrative Procedure Act:

i <1 J2tn ite eceeseasseanaounenenseeene 20

Cal. Gov't Code:

I. is 00 nnee805e000000000000466060004 4

666 6ueegencebedeeshsegsseetees 4

Cal. Pub. Res. Code:

cee cesescaeedbetebaseeeadeusessé 4

cee penn gonsesténeeessnesseuses 5

Clean Water Act of 1977:

i <1) ocbacsedeececacasceseceess 6

Ts ons ca cbaugeencesesseeuntsees 21

TT chakbncccceccscescsseccessouess passim

PEED oc cccccocesceseeseseons 19

DS an ona cecceseensestetsestes 19

Ee 21

ED ccccccueccceecessneceeeces 14

6p ccc ikae chaneadeéeaens 10

Senate Committee on Environment and Public Works, A

Legislative History of the Federal Water Pollution

Control Act Amerdments of 1972 and the Clean Water

Act of 1977, prepared by the Environmental Policy

Division of the Congressional Research Service of the

Library of Congress (Comm. Print 1973 & 1978)

pSOOOSedeseeseedéneessessoececes 10, 11, 12, 13, 14, 16, 23

BD Grae OB EPC ENS ED ev cccccccscccccccesees 17

BD CER. G TEBE GESOOD cvccccccccccscccccscccces 8, 23

oe TTT 8

Fe Sr le OIE USED occcccccccescccccccccectes 18

vi

TABLE OF AUTHORITIES

STATUTES AND REGULATIONS

Page

ee 19

40 C.F.R. part 230 (1984) 20000. en. 19

40 C.F.R. § 230.3(t) (1984) .. 0.2... 22

123 Cong. Rec. 38,994 (1977) . 2.2... 2

42 Fed. Reg. 37,124 & 37,128 (1977) ..... 0... c cee. 25

42 Fed. Reg. 37,127 (1977) «2.0... 0... ccc cece eee. 15

42 Fed. Reg. 37,128 (1977) ... 2.2... ccc cece. 16, 17, 22, 25

sec skedbenudes 20

Rules

U.S. Supreme Court Rule 36.4.......00.00..00000005.

Other Authorities

Blumm, Wetlands Preservation, Fish and Wildlife

Protection and 404 Regulation: A Response, \8 Land &

es SED onc vcncéacesecusadeesees 21

California Coastal Commission, Statewide Interpretive

Guidelines for Wetlands and Other Wet Environmentally

Sensitive Habitat Areas (1981) .................... 74

Council on Environmental Quality, Our Nation’s Wetlands

EY iid ie hc ele ee eee eens enesaneniet 1,2

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

Classificetion of Wetlands and Deepwater Habitats of

INTE Snnackdcccaccdeenckstdcess 24

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

Wetlands of the United States: Current Status and

IE, 156 acbnduedcteteteces<tuece 1, 3, 26

Fish and Wiidlife Service, U.S. Dep't of the Interior &

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

Ecology of San Francisco Bay Tidal Marshes: A

SE EE EEE cunceskcccedatcodcedcess 3

TABLE OF AUTHORITIES

OTHER AUTHORITIES

Page

Gramling, Wetland Regulation and Wildlife Habitat Pro-

tection: Proposals for Florida, 8 Harv. Envt’| L. Rev. 365

DD énbadeuceetsdsbedadedcusnsesséueoecseecees 3

J. Kusler, Our National Wetland Heritage (1983) ...... l

Office of Technology Assessment, Congress of the United

States, Wetlands: Their Use and Regulation (1984)

ai ecen eel ae enn oe dawns weiss 1,2,4,5

Want, Federal Wetlands Law: The Cases and the Problems

| § | SE Oe 4

No. 84-701

In the Supreme Court

United States

Octoser Term, 1984

Unrrep STATES OF AMERICA,

Petitioner.

v.

Riversipe Bayview Homes, Inc., et al.,

Respondents

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE

STATE OF CALIFORNIA, JOHN K. VAN DE KAMP, ATTOR-

NEY GENERAL OF CALIFORNIA, CALIFORNIA COASTAL

COMMISSION, SAN FRANCISCO BAY CONSERVATION

AND DEVELOPMENT COMMISSION, CALIFORNIA

COASTAL CONSERVANCY, AND THE STATES OF CON-

NECTICUT, HAWAII, ILLINOIS, LOUISIANA, MARYLAND,

MINNESOTA, MISSOURI, MONTANA, NEBRASKA, NEW

MEXICO, NORTH CAROLINA, RHODE ISLAND, TENNES-

SEE, VERMONT, WEST VIRGINIA, AND WISCONSIN

Amici respectfully submit this brief, pursuant to Rule 36.4 of

the Rules of the United States Supreme Court, in support of

petitioner, the United States of America.

INTERESTS OF AMICI

The states which have joined as amici in this brief share a deep

and abiding concern for the future of wetlands within their

respective jurisdictions. The historic loss of wetlands described

below and the manifold threats to their existence impel amici to

urge that this Court uphold the legal authority of the U.S. Army

Corps of Engineers (“Corps”) to effectively regulate discharge

Recent Trends 14 (1984) [hereinafter “Wetlands of the U.S.”);

Council on Environmental Quality, Our Nation's Wetlands 2

(1978) [hereinafter “CEQ, Our Nation's Wetlands” ]. Wetlands

are among the most productive ecosystems in nature, and there-

fore serve as an important link in the food chain. OTA, Wetlands

at 57-59; CEQ, Our Nation's Wetlands at 2, 21-22; see J. Kusler,

Our National Wetland Heritage 3 (1983).

The economic and commercial implications of these environ-

mental values are enormous, both to the individual states which

join in this brief as amici and to the nation at large. Approxi-

mately two thirds of the commercially important fish and shellfish

harvested along the Atlantic coastline and in the Gulf of Mexico

depend on coastal estuaries and their wetlands for food, spawning

grounds, or nurseries for their young; on the Pacific coast, the

figure is almost 50 percent. CEQ, Our Nation's Wetlands at 2;

2

Wetlands of the U.S. at 13. Sixty-three percent of total U.S.

commercial landings of fish and shellfish in 1980 consisted of

wetland-dependent estuarine species, representing 51.5 percent of

the dollar value of the total catch (which amounts to some $1.15

billion). OTA, Wetlands at 58-59.

in nonconsumptive activities such as

birdwatching and photographing or feeding wildlife Wetlands of

the U.S. at 24

2 ee ee

3

amount to under 99 million acres, or less than 46 percent of our

original wetlands. Wetlands of the U.S. at 28-29.' The conversion

of wetlands to agncultural, residential, and other uses continues at

an astonishing pace. Between the mid-1950's and the 1970's, the

wetland conversion rate averaged between 450,000 and 550,000

acres per year. Wetlands of the US. at 31; OTA, Wetlands at 6,

' While these figures for the national decline in wetlands are dramatic.

losses in particular regions and states have been even more startling For

example, California has lost over 90 percent of its original wetland

resources. Wetlands of the U.S. at 32. In San Francisco Bay, 75 percent

of the 313 square miles of histonc wetlands have disappeared, while 95

percent of the Bay's tidal marshes have been diked or filled. Fish and

Wildlife Service, U.S. De~"* of the Interior & Corps of Engineers, US.

Dep't of the Army, The Ecology of San Francisco Bay Tidal Murshes: A

Community Profile 14 (1983). Less than 5 percent of lowa’s natural

wetlands remain. Wetlands of the U.S. at 32. Michigan, in which the

instant case arose, has suffered the destruction of 7! percent of its

onmginal wetland resources. /d at 34 In 1850, Flonda possessed over 20

milhon acres of wetlands, today, that figure has dwindled to about |?)

million acres. Gramling, Wetland Regulation and Wildlife Habitat

Protection: Proposals for Florida, § Harv. Envi! L. Rev. 365, 366

The other Califorma agencies which have jouned im this also

have special responsibilities for wetland protection under state law The

Attorney General is the chief law enforcement officer of the state with

= tttsti‘S

5

California’s regulatory scheme is by no means unique. As

indicated above, while coastal wetlands are regulated reasonably

well, through a combination of state programs and the Corps’ 404

program, in most cases the only protection for inland wetlands is

that provided by the Corps. OTA, Wetlands at 13. Consequently,

the issues in this case are of major concern to the states joining in

SUMMARY OF ARGUMENT

Section 404 of the Clean Water Act of 1977 (“CWA”), 33

U.S.C. § 1344, prohibits the discharge of dredged or fill material

) into waters of the United States, including wetlands, without a

permit from the Corps. The United States brought this action to

enjoin the unpermitted discharge of fill material into a wetland

site owned by the respondent, Riverside Bayview Homes, Inc.

(“Riverside”). The district court found a portion of Riverside’s

property to be a wetland subject to the Corps’ regulatory jurisdic-

tion and enjoined further filling of that part of the site without a

404 permit.

Riverside appealed and the circuit court remanded the case to

the district court for reconsideration in light of the Corps’ revised

1977 definition of wetlands. A second district court judge also

. ruled for the United States, and Riverside appealed once again.

| The Court of Appeals, in the decision now under review by this

, Court, held that Riverside’s property was not a wetland under the

1977 regulations and thus not subject to the Corps’ 404 permit

authority. United States v. Riverside Bayview Homes, Inc., 729

F.2d 391 (6th Cir. 1984).

The circuit court ruled that the Corps’ 404 jurisdiction to

regulate the discharge of pollutants into wetlands is restricted to

areas which support aquatic vegetation only by virtue of “frequent

flooding by waters flowing from ‘navigable waters’ as defined in

the Act.” Jd. at 398. Its rationale for engrafting this “frequent

flooding” requirement onto the Corps’ regulatory definition of

Conservancy makes grants to local public entities and nonprofit organi-

zations to acquire, restore, and enhance valuable wetlands. Cal. Pub.

Res. Code §§ 31000-31406.

iia iii iain

6

wetlands was based on both statutory and constitutional con-

straints. The court questioned whether Congress intended to

reach properties having the characteristics attributed to River-

side’s land, id. at 397-398, 401, and concluded that in any event

the Corps’ definition must be narrowly construed to avoid what it

perceived to be “a serious taking problem under the fifth amend-

ment.” Jd. at 397-398.

Amici contend that the Sixth Circuit’s decision is plainly

contrary to the intent of Congress in enacting Section 404. Unlike

the circuit court, moreover, amici see no constitutional impedi-

ments to extending the Corps’ regulatory jurisdiction over wet-

lands to the property owned by Riverside.

Congress declared that the objective of the CWA was “to

restore and maintain the chemical, physical, and biological integ-

rity of the Nation’s waters.” 33 U.S.C. § 1251 (a). In furtherance

of this ambitious goal, Congress intended to assert jurisdiction

over the nation’s waters to the full extent of its powers under the

Commerce Clause of the Constitution. This Court has repeatedly

held, in an unbroken line of precedent, that the Commerce

Clause is a grant of plenary authority which enables Congress to

regulate purely intrastate activities as long as it has a rational

basis for determining that such activities affect interstate com-

merce. The legislative history of the CWA, which the Court of |

Appeals completely ignored, unmistakably demonstrates that

Congress not only had a rational basis for determining that the

discharge of dredged or fill material into wetlands has major

impacts on interstate commerce, but fully intended to reach such

activities under Section 404. Congress recognized that wetlands

perform essential environmental functions which are inextricably

connected to the CWA’s central object of purifying the nation’s

waters. These vital ecological services, in turn, have a social and

economic dimension of which our legislators were well aware

when they created the 404 program.

The Sixth Circuit's constricted reading of the Corps’ regulation

certainly was not required by any Fifth Amendment “taking”

considerations. Riverside contests the jurisdiction of tne Corps

over its land and asserts its right to develop the parcel without

having to obtain a 404 permit. Thus, the only “taking” issue

7

which can possibly arise is whether the regulation on its face

effects a taking of Riverside’s property without compensation.

Neither Section 404 nor the implementing regulations necessarily

forbid all beneficial use of the tract of land involved here;

therefore, because Riverside has not been denied all economically

viable use of the parcel, its property has not been taken in

contravention of the Fifth Amendment.

Congress vested in the Corps broad jurisdiction to regulate the

discharge of dredged and fill materials into adjacent wetlands,

unconfined by arbitrary limitations of the sort imposed by the

Court of Appeals. The Corps, exercising this congressional grant

of authority, adopted a definition of “wetlands” which admirably

serves the purposes Congress had in mind when it passed the

CWA. By focusing on soil condition, the prevalence of aquatic

vegetation, and the presence of abundant moisture (by virtue of

either inundation or saturation)—the factors which scientists

themselves typically take into accouni—the Corps’ definition

takes a biologically sound approach to the problem of identifying

wetlands. Furthermore, insofar as the regulation’s scope is di-

rected at wetlands in close geographical proximity to streams

lakes, or seas, it properly recognizes the functional link betwec.:

adjacent wetlands and such waterwiys.

By narrowly interpreting the Corps’ regulation and imparting to

it a limitation which neither Congress nor the Corps intended, the

circuit court improperly fashioned its own judicial definition of

wetlands. In so doing, the court disregarded the well-established

rule that the views of an agency charged with administering a

complex regulatory statute such as the CWA are entitled to

judicial deference. Rather than deferring to the Corps’ unques-

tioned expertise, the Court of Appeals improperly created its own

definition, which bears little resemblance to the one adopted by

the agency. In sharp contrast to the Corps’ scientifically based

approach, moreover, the Sixth Circuit’s definition has no legiti-

mate scientific basis and would artificially exclude broad catego-

ries of wetlands from protection with no rational basis for doing

so. The circuit court's definition, in short, is neither good science

_ nor good law.

ARGUMENT

I

IN THE EXERCISE OF ITS COMMERCE CLAUSE AU-

THORITY, CONGRESS CONFERRED ON THE CORPS

BROAD JURISDICTION TO REGULATE THE DIS-

CHARGE OF DREDGED AND FILL MATERIAL INTO

“ADJACENT WETLANDS” AS PART OF ITS PROGRAM

TO EFFECTIVELY CONTROL POLLUTIO:: OF THE NA-

TION’S WATERS .

The Court of Appeals held that the Corps’ Section 404 jurisdic-

tion to regulate the discharge of pollutants into “adjacent wet-

lands”™ is restricted to areas which are “frequently flooded” by

waters flowing from “navigable waters.” Unites States v. River-

side, 729 F.2d at 397-398. Review of the 1972 and 1977 amend-

ments to the CWA and the legislative record surrounding their

enactment, however, plainly demonstrates that Congress intended

no such limitation. As numerous other circuit courts have recog-

nized,’ Congress intended to extend the coverage of the Act as far

‘The Corps’ regulations define “wetlands” as follows:

The term “wetlands” mears 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 prevalence of vegetation typically adapted for life in

saturated soil conditions. Wetlands generally include swamps, mar-

shes, bogs and similar areas.

33 C.F.R. § 323.2(c) (1984). The Corps defines “adjacent” thusly:

The term “adjacent” means bordering, contiguous, or neighbor-

ing. Wetlands separated from other waters of the United States by

man-made dikes or barriers, natural river berms, beach dunes and

the like are “adjacent wetlands.”

33 C.F.R. § 323.2(d) (1984).

5 See, e.g. State of Utah v. Marsh, 740 F.2d 799, 802 (10th Cir.

1984); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 914-

916 & n. 33 (Sth Cir. 1983); United States v. Lambert, 695 F.2d 536,

$38 (11th Cir. 1983); United States v. Byrd, 609 F.2d 1204, 1209 (7th

Cir. 1979); Leslie Salt Co. v. Froehlke, 578 F 2d 742, 754-755 (9th Cir.

1978); Minnesota v. Hoffman, 543 F.2d 1198, 1200 n. | (8th Cir. 1976),

appeal dismissed, 430 U.S. 977 (1977).

9

as permissible under the Commerce Clause of the Constitution.

To effectively control pollution of the nation’s waters, it adopted 2

Strategy of reguiating the discharge of pollutants at the point

source. See EPA v. California ex rel. State Water Resources

Control Board, 426 U.S. 200, 204-205 (1976). In so doing,

Congress gccorded the Corps broad jurisdiction under Section

404 to regulate the discharge of dredged and fill materials into

“adjacent wetlands,” unconfined by arbitrary limitations of the

sort fashioned by the Court ‘of Appeals.

A. The Corps’ Regulation of the Discharge of Dredged and Fill

Material in “Adjacent Wetlands” Is Well Within the Scope

of Congress’ Authority Under the Commerce Clause, and

Congress Clearly Intended to Regulate Such Discharges

1. Congress Has Broad Authority Under the Commerce

Clause to Regulate Water Pollution Activities

Since Congress premised the enlarged scope of federal author-

ity to fully regulate water pollution activities on its authority

under the Commerce Clause, we begin with a review of the

applicable precedent in this area. This Court has agreed that the

power conferred by the Commerce Clause is indeed “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.” Hodel v. Virginia Surface Min. &

Recl. Ass'n, 452 U.S. 264, 282 (1981). The constitutional provi-

sion is a grant of plenary authority to Congress, and this power is

“complete in itself, may be exercised to its utmost extent, and

acknowledges no limitations, other than are prescribed in the

constitution.” /d. at 276, quoting Gibbons v. Ogden, 22 U.S. (9

Wheat) |, 196 (1824).

In a number of cases the Court has made clear that “the power

of Congress to promote interstate commerce also includes the

power to regulate the incidents thereof, including local activities

in both States of origin and destination, which might have a

substantial and harmful effect upon that commerce.” Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1974);

see Hodel v. Virginia Surface Min. & Recl. Ass'n, 452 U.S. at 310-

313 (Rehnquist, J., concurring); Wickard v. Filburn, 317 US.

10

111, 124-125 (1942). Even if a particular activity has no percepti-

ble interstate effect, it can be reached by Congress through

regulation of that class of activity in general as long as the ciass,

considered as a whole, affects interstate commerce. See Hodel v.

Indiana. 452 U.S. 314, 324 (1981); Perez v. United States, 402

U.S. 146, 154 (1971); Maryland v. Wirtz, 392 U.S. 183, 192-193

(1968). As explained in Perez: “Where the class of activities is

regulated and that class is within the reach of federal power, the

courts have no power ‘to excise, as trivial, individual instances’ of

the class.” Perez v. United States, 402 U.S. at 154, quoting

Maryland v. Wirtz, 392 U.S. at 193 (emphasis in original). In

order to regulate an activity, Congress need only have a rational

basis for a determination that the activity affects interstate com-

merce. Hodel v. Virginia Surface Min. & Recl. Ass'n, 452 US. at

276.

2. The Legislative History of the CWA Demonstrates the

Intent of Congress to Exercise Its Fullest Authority

Under the Commerce Clause

Bearing in mind these rules, amici believe the Sixth Circuit

fundamentally erred in failing to address in any sense the broad

reach of jurisdiction under Section 404 intended by Congress in

the exercise of its Commerce Clause authority, and the extensive

legislative history of the CWA which makes that intent so

clear. See Train v. Colorado Pub. Int. Research

Group, 426 U.S. 1, 9-10 (1976). The legislative record plainly

demonstrates that Congress, in defining “navigable waters” in the

Act to mean “waters of the United States,” 33 U.S.C. § 1362(7),

fully intended to extend the reach of federal regulatory authonty

over water pollution activities to a class of activities it deemed to

have potentially substantial effects on interstate commerce: the

discharge of dredged and fill material into adjacent wetlands.

In furtherance of its principal objective under the Act to restore

and maintain the integrity of the nation’s waters, Congress ¢x-

pressly stated its intent at the outset “that the term ‘navigable

waters’ be given the broadest possible constitutional interpreta-

tion...” | Leg. Hist. at 327 (S. Rep. No. 1236, 92d Cong., 2d

Sess. 14 (1972) (conference report) ); see also | Leg. Hist. at 178

(remarks of Sen. Muskie); | Leg. Hist. at 250-25! (remarks of

*Cj . to the I isl . Hi ; " } . . ii i are

to Senate Committee on Environment and Public Works, A Legislative

History of the Federal Water Pollution Control Act Amendments of

1972 and the Clean Water Act of 1977, prepared by the Environmental

Policy Division of the C ional R hb Service of the Lit of

Congress (Comm. Print 1973 & 1978), in four volumes.

” As used in the traditional sense, “navigable waters” has generally

been interpreted for purposes of federal regulatory junsdiction to include

all waters used to transport interstate or foreign commerce, The Daniel

Bail, 77 U.S. (10 Wall) 557 (1870); used im the past to transport

inte: state or foreign commerce, Economy Light and Power Cov. United

States, 256 U.S. 113 (1921); and susceptible to use in their ordinary

condsuon or b; reasonable improvement to transport interstate or foreign

commerce, United States v. Appalachian Power Co. 311 US. 377

(1940). In the 1972 amendments, Congress opted for the broader

definition of “navigable waters” contained in the CWA because it was

plainly evident that a polluter could adversely affect navigable waters

merely by dumping its waste, or dredged or fill materials, into a

svn iavigable tnbutary of navigable waters or into adjacent wetlands See

United States v. Ashland Oil and Transp. Co. 504 F 2d 1317 (6th Cir. -

1974).

12

2 Leg. Hist. at 1495 (emphasis added).*

In passing the 1977 amendments to the Act, Congress left no

doubt about its intent to regulate the discharge of pollutants into

wetlands. Efforts by the House to restrict the CWA’s reach to

waters that are in fact navigable were rejected in 1977. See 3 Leg.

Hist. at 281-282. Significantly, the Senate also defeated an

amendment proposed by Senator Bentsen which would have

limited Section 404 jurisdiction to waters navigable-in-fact and

their contiguous or adjacent saline or fresh water wetlands. 4 Leg.

Hist. at 901-950. Indeed, the legislative record makes it very clear

that when Congress rejected attempts to restrict the Corps’

jurisdiction in 1977, it was fully aware of the Corps’ regulatory

extension of that jurisdiction beyond the traditional definition of

“navigable waters” and of the Corps’ pending revision of its

wetland definition in the disputed regulation before this Court. 4

Leg. Hist. at 920-922 (remarks of Sen. Baker); 3 Leg. Hist. at

347-348 (remarks of Rep. Roberts).

Congress repeatedly emphasized the importance of protecting

wetlands as part of its overall strategy for restoring the biological!

and chemical integrity of the nation’s waters. Senator Muskie,

one of the primary sponsors of the CWA, explained:

“There is no question that the systematic destruction of

the Nation’s wetlands is causing serious, permanent ecologi-

cal damage. The wetlands and bays, estuaries and deltas are

the Nation’s most biologically active areas. They represent a

principal source of food supply. They are the spawning

grounds for much of the fish and shellfish which populate the

oceans, and they are passages for numerous upland game

fish. They also provide nesting areas for a myriad of species

of birds and wildlife.

* With this strategy in mind, the lower federal courts had little

difficulty concluding that “adjacent wetlands” were intended by Con-

gress to be “waters of the United States” within the scope of the 1972

amendments to the Act. See Conservation Council of North Carolina v.

Costanzo, 398 F. Supp. 653, 673-674 (E.D.N.C. 1975); P.F.Z. Proper-

ties. Inc. v. Train, 393 F. Supp. 1370, 1381 (D.D.C. 1975); United

States v. Holland, 373 F. Supp. 665, 674-676 (M.D. Fla. 1974).

Dan seneneeeisimmnninaetel

13

“The unregulated destruction of these areas is a matter

which needs to te corrected and which implementation of

section 404 has attempted to achieve.”

4 Leg. Hist. at 869.

Further, the substantial impacts upon the economy and inter-

state commerce derived from dredging and filling activities in

wetlands were forcefully brought home in the remarks of Senators

Chaifee and Baker. Senator Chaffee, in opposing the Bentsen

amendment, addressed wetlands as a national asset, “not just

confined within boundaries which happen to exist for any one of

our States”:

“The wetlands perform a vital part of the food chain for

our wildlife.

“Mr. President, I cali the attention of the Members of the

Senate to the fact that 90 percent of the fish and shellfish in

the whole Gulf of Mexico, that mammoth body of water, 90

percent of those fish and shellfish spend some part of their

life cycle in Louisiana wetlands. More than two-thirds of the

cash value of fish harvested along the Atlantic coast is

derived from species that depend upon the estuaries.

“In other words, it is a life chain that starts with the tiny

little organisms that grow in these marshlands, are generated

there, and then go to provide food up through the animal

chain.

“As we all know, the New England commercial fishery is

vital to our economy. It is one of our more productive

industries. For instance, in the State of Maine, in 1975, the

last year for which we have figures, nearly $50 million was

the value of the fishing harvest there. Ninety-eight percent of

that was made up of species that depended upon the wet-

lands for some part of their life cycle.”

4 Leg. Hist. at 917.

Senator Baker, during that same debate, observed that without

wetlands “the cost of abating pollution in this country by industry

and municipalities would be enormously increased by the addi-

tional costs that would be required by the technology to take the

14

place of what nature has provided us.” 4 Leg. Hist. at 920. He

emphasized that:

“ ..[U]nlike most industrial and municipal pollution,

dredged and fill material can physically destroy essential

parts of the aquatic system, including swamps, marshes,

submerged grass flats and shellfish beds. These critical

aquatic areas are essential to many water uses, not the least

of which is a viable commercial and sports fishery.

“Wetlands serve as spawning and nursery areas while

providing natural control of organic and inorganic nutrient

transfer that dictate quantity and quality of life in the water.

The declining availability of swamps, marshes, and free-

flowing streams to assimilate pollution from point and

nonpoint sources will greatly increase the dollar and energy

costs of maintaining desirable water uses.”

Id. at 921.

Other legislators voiced similar sentiments concerning the

economic significance of wetlands. See, e.g, 4 Leg. Hist. at 927

(remarks of Sen. Hart), 1247 (House Comm. Rpt., Additional

Views of Reps. Edgar and Myers), 1317 (remarks of Rep.

Lehman), and 1320 (remarks of Rep. Bonior).’

Finally, consistent with these views, Congress made its intent to

reach pollution activities in adjacent wetlands explicit by specifi-

cally referring to “wetlands adjacent” to navigable waterways in

one of the key provisions added to Section 404 by the 1977

amendments to the Act. See 33 U.S.C. § 1344(g)(1) (addressing

state administration of the Section 404 program).

The foregoing therefore amply documents that, recognizing

wetlands as a diminishing resource of inestimable value to the

nation (in economic as well as biological terms), Congress

believed it imperative to protect this resource through the 404

permit program. As for adjacent wetlands specifically, Congress

* The concerns of these legislators, moreover, are well grounded in the

facts and statistics detailed in the introductory statement of the Interests

of Amici, supra, demonstrating the national economic and commercial

significance of wetlands.

ae

15

purposefully determined to regulate, as a class under Section 404.

the discharge of dredged and fill materials into such areas, which

it regarded as an essential provision to protect the economy and

interstate commerce from the substantial effects that may result

from that kind of activity.'° Amici submit the regulation of that

class of activities unquestionably represents a valid and rational

exercise of Congress’ authority under the Commerce Clause.

3. The Corps’ Definition Implements the Intent of Con-

gress in the CWA

The Corps, in turn, had the intent of Congress, as well as this

Court’s Commerce Clause precedent, well in mind when it

promulgated its final regulation defining “waters of the United

States” for purposes of Section 404. 42 Fed. Reg. 37,127 (1977).

Rejecting the traditional limits of the “navigable waters” in the

case of wetlands, the agency explained in the preamble to the

1977 revision of its regulations:

“The regulation of activities that cause water pollution

cannot rely on these artificial lines, however, but must focus

on all waters that together form the entire aquatic system.

Water moves in hydrologic cycles and the pollution of this

part of the aquatic system, regardless of whether it is above

or below an ordinary high water mark, or mean high tideline,

'° A number of courts have recognized that discharge of pollutants

into the nation’s waters, including adjacent wetlands, has the potential

for exerting substantial effects on interstate commerce, even where the

activity at issue is purely local in nature. These courts have pointed out,

for example, that such activities may disrupt the food chain, essential to

propagation of fish, shellfish, and other wildlife which could be taken

and sold in interstate or foreign commerce, Utah v. Marsh, 740 F.2d at

803; United States v. St. Bernard Parish, 589 F. Supp. 617, 620 (E.D.

La. 1984); impair the attraction of lakes and streams used by interstate

travellers for swimming, boating, fishing. hunting, or viewing and appre-

ciating bird and animal life, Utah v. Marsh, 740 F.2d at 804: United

States v. Byrd, 609 F.2d at 1210; or degrade the quality of irrigation

waters used for agricultural crops sold in interstate commerce. Utah v.

Marsh, 740 F.2d at 804; United States v. Earth Sciences, Inc., 599 F.2d

368, 375 (10th Cir. 1979),

16

will affect the water quality of the other waters within that

aquatic system.

“For this reason, the landward limit of Federal jurisdiction

under Section 404 must include any adjacent wetlands that

form the border of or are in reasonable proximity to other

waters of the United States, as these wetlands are part of this

aquatic system.”

42 Fed. Reg. 37,128 (1977). It thus broadly defined “adjacent

wetlands” as “waters of the United States”, without the kind of

constraint imposed by the Court of Appeals, to ensure that

discharge activities in such sensitive areas would in fact receive

regulatory scrutiny. That definition, born of the “organic” concept

chosen by Congress to further its objective of eliminating the

discharge of pollutants into the nation’s waters, is wholly in

accord with the goals Congress sought to accomplish under the

CWA. Cf. Hodel v. Virginia Surface Min. & Recl. Ass'n, 452 U.S.

at 283 (Surface Mining Act).

The approach of the Court of Appeals stands in stark contrast

to the congressional intent underlying Section 404. The court’s

restriction of the Corps’ jurisdiction to wetlands “frequently

flooded by waters flowing from the ‘navigable waters’ ” literally

makes no sense, when viewed either against the breadth of

regulation intended by Congress to combat water pollution or the

substantial effects on interstate commerce exerted by the dis-

charge of pollutants in such areas. This perhaps is not surprising

given that the court in its opinion simply failed to address either

of these factors. Recognizing that “[w]ater moves in hydrological

cycles,” 2 Leg. Hist. at 1495, Congress also quite clearly sought to

regulate, as a particular class of activities, the discharge of

pollutants in wetlands which drain by ground or surface water

runoff into other adjacent waters. The Corps’ wetland definition

reaches activities of this sort and therefore achieves precisely the

broad extent of jurisdiction intended by Congress to effectively

control water pollution by regulating it at its source.

In short, the Court of Appeals seriously erred in its attempt to

restrict the scope of the Corps’ wetland jurisdiction. Since, in the

instant case, the discharge of fill on Riverside’s property falls well

Se a

17

within the broad class of activities Congress appropriately sought

to regulate under the CWA, it is properly reached under Section

404.

B. The Sixth Circuit’s Narrow Interpretation of the Corps’

Regulation Is Not Compelled by the Takings Clause of the

Fifth Amendment

In attempting to justify its narrow construction of the Corps’

regulatory authority over wetlands, the Court of Appeals reasoned

that its interpretation was compelled by the Takings Clause of the

Fifth Amendment to the Constitution. 729 F.2d at 397-398. The

Court explained that it took this approach “in order to avoid

serious questions concerning the [constitutional] validity of the

definition itself” under the CWA. /d. at 397. Far from being

required by the Fifth Amendment, however, the Sixth Circuit's

constricted reading of the regulation reveals an erroneous under-

standing of this Court’s decisions in the takings area.''

As the Court has made clear in a series of land use cases, the

“taking” question is fundamentally a factual inquiry. Hodel y.

'' The circuit court expressed the opinion that a restrictive interpreta-

tion of the wetlands definition was needed lest the Corps’ jurisdictional

reach extend to “low lying backyards miles from a navigable waterway”.

729 F.2d at 401. We submit, however, that the Corps’ definition contains

“an adequate limiting principle”, id, that makes the court’s narrow

reading of the regulation wholly unnecessary. First, isolated wetlands not

in close proximity to waterways that are in fact navigable are subject to

the Corps’ 404 jurisdiction only if there is a provable nexus between

them and interstate or foreign commerce. See 33 CFR.

§ 323.2(a) (3) (1984). Secondly, in the preamble to its 1977 revision of

the regulations, the Corps explained that the term “normally” was

inserted into the wetlands definition, in part, to exclude from 404

jurisdiction areas that exhibit an abnormal presence of aquatic vegeta-

tion but are not true wetlands. As the Corps interpreted the new

definition, “the abnormal presence of aquatic vegetation in a non-

aquatic area would not be sufficient to include that area within the

Section 404 program.” 42 Fed. Reg. 37,!28 (1977). Thus, the Corps

itself has interpreted its own regulation in a manner which remains

faithful to Congress’ intent in the CWA and falls well within constitu-

tional boundaries, making judicial revision quite unnecessary.

18

Virginia Surface Min. & Recl. Ass'n, 452 U.S. at 294-295; Kaiser

Aetna v. United States, 444 U.S. 164, 175 (1979); Penn Central

Transp. Co. v. New York City, 438 U.S. 104, 123-124 (1978). In

developing the jurisprudence of the Fifth Amendment’s Taking

Clause, the Court has not developed any “set formula” for

determining when public actions resulting in economic injury

must be compensated by the government. Instead, it has often

observed that whether a particular restriction will be held invalid

for the government's failure to compensate the property owner for

losses caused by regulatory conduct “depends largely ‘upon the

particular circumstances [in that] case.’” Penn Central v. New

York City, 438 U.S. at 124, quoting United States v. Central

Eureka Min. Co., 357 U.S. 155, 168 (1958). Several factors have

been identified as being of particular significance: the economic

impact of the regulation in question, the character of the govern-

mental action, and the extent of its interference with “reasonable

investment-backed expectations.” Kaiser Aetna v. United States,

444 US. at 175.

None of these “essentially ad hoc, factual inquiries”, id., can be

addressed in the abstract. They can only be conducted with

respect to specific property and with careful attention to the

particulars of the economic harm suffered by the property owner

in his unique circumstances. Hodel v. Virginia Surface Min. &

Recl. Ass'n, 452 U.S. at 295. Given the procedural posture in

which the instant case arose, the question of whether the 404

permit requirement resulted in a “taking” of Riverside’s property

cannot be answered. The issue presented here is not whether the

Corps’ denial of a 404 permit was reasonable under all the

circumstances, but whether Riverside must apply for a permit in

the first place.'?

'2 While this case was on appeal in the Sixth Circuit, the Corps denied

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

had already filled without authorization by the Corps, and also refused

permission to fill an additional 30.6 acres. This permit denial was based

on the adverse impact of the fill on the wetland, and the absence of a

permit from the State of Michigan. U.S. Pet. 11 n. 8; see 33 C.F.R.

§ 325.8(b) (1984). Riverside never sought judicial review of this deci-

sion, and the Court of Appeals had no occasion to consider whether the

19

Since Riverside has resisted this requirement on the grounds

the Corps has no jurisdiction over its land, the Sixth Circuit's

conclusign that its restrictive interpretation of the regulation was

dictated by Takings Clause considerations could only have been

founded on an implicit judgment that Section 404 or the regula-

tions on their face effect a taking of Riverside’s property. The test

applied to such a facial challenge is that a statute or regulation

limiting the use of property results in a taking if it “denies an

owner economically viable use of his land . . .” Hodel v. Virginia

Surface Min. & Recl. Ass'n, 452 U.S. at 295-296, quoting Agins v.

City of Tiburon, 447 U.S. 255, 260 (1980). Section 404 and the

Corps’ regulations easily survive this test.

The Court of Appeals apparently was laboring under the

misapprehension that sanctioning the Corps’ assertion of 404

jurisdiction over Riverside’s property would be tantamount to

approving an absolute prohibition of “any development or change

of such property by the landowner’. 729 F.2d at 398. Requiring

that Riverside obtain a permit from the Corps, however, is not

equivalent to forbidding all development. Indeed, the Act itself

clearly presupposes that permits will be issued in appropriate

circumstances. See 33 U.S.C. § 1344(a) & (b). To assume that

requiring a 404 permit would necessarily frustrate the developer's

plans, as the lower court apparently did, is to ignore the plain

language of the Act.

Moreover, even if one were to assume that Riverside would be

unable to obtain a permit for its project, it does not necessarily

follow that the corporation would be deprived of any economically

viable use of its property. The Act exempts certain categories of

discharge entirely, 33 U.S.C. §1344(f)(1), and the regulations

provide for permits to be granted for numerous activities and uses.

See generally 33 C.F.R. part 330 (1984); 40 C.F.R. part 230

(1984). Thus, since the Act and the regulations, on their face, do

not forbid all uses of the property, a taking claim based only on a

Corps’ permit denial was reasonable or effected a taking under the

circumstances. Therefore, this question is not presented to the Court

here, and in any event Riverside, by its failure to appeal the Corps’

administrative determination, has waived any claim that the refusal of a

permit effected a taking of its property.

20

recognition of Corps jurisdiction is premature and cannot be

sustained. Cf. Hodel v. Virginia Surface Min. & Recl. Ass'n, 452

U.S. at 296-297 (Surface Mining Act does not, on its face,

prevent beneficial use of coal bearing lands); see Avoyelles

Sportsmen's League v. Marsh, 715 F.2d at 927, United States v.

Byrd, 609 F.2d at 1211; United States v. Ciampitti, 583 F. Supp.

483, 495-496 (D.N.J. 1984).

The only authority relied upon by the Sixth Circuit in analyzing

the “taking” issue was Kaiser Aetna v. United States, 444 US.

164 (1979). Not only are the “parallels” between the case at bar

and Kaiser Aetna not “obvious”, as the lower court asserted, that

decision does not even remotely suggest that a narrow view of the

government’s regulatory jurisdiction under the CWA is required

to avoid a constitutional problem. The Court in Kaiser Aetna was

concerned with the proper scope of the government's traditional

navigational servitude, and the issue was whether that servitude

negated any private property interest in navigable waters. In

rejecting the argument that the navigational servitude necessarily

immunizes the government from a Fifth Amendment taking

claim, the Court remarked that applying the navigational servi-

tude to create a public right of access would “result in an actual

physical invasion of the privately owned marina” and held that

the government's assertion of such a right of access “goes so far

beyond ordinary regulation or improvement for navigation as to

amount to a taking”. /d. at 178, 180.

In the instant case, by contrast, we are not presented with any

physical invasion of Riverside’s property by the government. Nor

'3 Even if a taking were found here, Riverside would have no constitu-

tional complaint unless appropriate relief were unavailable. Hodel v.

Virginia Surface Min. & Recl. Ass'n, 452 U.S. at 297 n. 40. Presumably,

if the denial of a 404 permit were held to be a taking, Riverside would

have a remedy by way of either an action in the U.S. Court of Claims,

28 U.S.C. § 1491, or judicial review pursuant to the Administrative

Procedure Act, 5 U.S.C. § 702. See Buttrey v. United States, 690 F.2d

1170, 1183-84 (Sth Cir. 1982), cert. denied, 103 S.Ct. 2087 (1983);

Deltona Corp. v. United States, 657 F.2d 1184 (Ct. Cl. 1981), cert.

denied. 455 U.S. 1017 (1982). No showing to the contrary was made by

Riverside or by the Court of Appeals.

21

does the Corps’ mere assertion of regulatory jurisdiction “extin-

guish a fundamental attribute of ownership”. Agins v. Tiburon,

447 U.S. at 262. In fact, the Court in Kaiser Aetna expressly

acknowledged the government’s rightful authority to regulate the

navigable water involved there in order to protect navigation and

promote commerce, without “taking” private property in contra-

vention of the Fifth Amendment. Kaiser Aetna v. United States,

444 US. at 174, 179. This Court’s holding in Kaiser Aetna,

therefore, provides no support for the Sixth Circuit's taking

analysis.

In short, the application of the CWA to Riverside’s property

creates no conflict with the Takings Clause. The “serious ques-

tions” about the constitutional! validity of the Corps’ definition of

wetlands which concerned the Sixth Circuit, on close examina-

tion, present little difficulty, particularly in the procedural context

in which this case comes before the Court. Fifth Amendment

“taking” considerations thus do not compel the overly restrictive

interpretation of the Corps’ regulations which the Court of Ap-

peals adopted.'*

'* Riverside also maintained in the court below that subjecting its

property to regulation under Section 404 would contravene the Congres-

sional policy expressed in the CWA that the primary responsibility for

land use decisions should continue to reside with state and local

governments. See 33 U.S.C. § 1251(b). Riverside’s fear that defining its

Property as a “wetland” for Section 404 purposes would inject an

unwarranted federal presence into an area better left to the states is

unfounded. !n the first place, to equate wetlands protection with local

land use controls is to confuse the well-defined and specific objectives of

the former—water quality protection, flood prevention, groundwater

recharge, fish and wildlife conservation—with the more general concerns

of the latter. Unlike local zoning and other land use decisions, activities

subject to 404 regulation often have effects far removed from the local

jurisdiction. Blumm, Wetlands Preservation, Fish and Wildlife Protec-

tion, and 404 Regulation: A Response, 18 Land & Water L. Rev. 469.

472-473 (1983). More importantly, federal control over dredging and

filling is largely a matter of choice for individual states, inasmuch as they

have the option of administering part of the 404 permit program

themselves within their jurisdictions. 33 U.S.C. § 1344(g).

{

22

ul

THE COURT OF APPEALS ERRED IN NOT DEFERRING

TO THE CORPS’ TREATMENT OF “ADJACENT WET-

LANDS” AS “WATERS OF THE UNITED STATES” AND

IN SUBSTITUTING ITS OWN WETLAND TEST FOR

THAT OF THE AGENCY

As a consequence of its constricted interpretation of the Corps’

wetland definition, the Court of Appeals, in effect, fashioned its

own wetland test—a test which bears little resemblance in either

form or substance to the one adopted by the agency. In so doing,

it plainly erred in not deferring to the Corps’ definition and in

substituting its own judicially created version. The record in this

case readily supports the district court’s ruling that Riverside’s

discharge activities fell properly within the scope of the Corps’

regulatory jurisdiction.

This Court has recently confirmed the long-standing rule that

the views of an agency charged with administering a complex

statute such as the CWA are entitled to judicial deference, and

moreover that a court may not substitute its own construction of a

statutory provision for a rational one made by the agency. Chemi-

cal Mfrs. Ass'n v. NRDC, 105 S.Ct. 1102, 1108 (1985); Chevron

USA, Inc. v. NRDC, 104 S.Ct. 2778, 2782-2783 (1984); Train v.

NRDC, 421 U.S. 60, 75, 87 (1975).

Under the CWA, Congress delegated substantial discretion to

the Corps to implement the 404 permit program. The final

wetland definition promulgated by the agency in 1977 was devel-

oped in response to numerous comments concerning its earlier

interim definition, and after drawing upon its special expertise in

wetlands regulation and the expertise provided by the Depart-

ments of Interior and Agriculture and the Environmental Protec-

tion Agency (“EPA”). 42 Fed. Reg. 37,128 (1977); see also

Avoyelles Sportsmen's League v. Marsh, 715 F.2d at 911 n. 27.

EPA has added the same definition to its 404 guidelines. 40

C.F.R. § 230.3(t) (1984). While adopted for jurisdictional pur-

poses, the definition blends scientific and technical fac-

tors—vegetation, soil, and hydrology—into a convenient and

workable methodology for identifying wetlands. Furthermore, it

menial

23

bears repeating that during the debates over the 1977 amend-

ments to the CWA, Congress was well aware of the broad reach

of this wetland definition and fully embraced it. See 4 Leg. Hist.

at 920-922 (remarks of Sen. Baker); 3 Leg. Hist. at 347-348

(remarks of Rep. Roberts).

Accordingly, the Court of Appeals should have given the

Corps’ definition the deference required under the well-estab-

lished rules outlined above. In essentially rewriting the regulation

instead, it clearly misconceived its role. Its interpretation would

substitute for the Corps’ scientifically based definition one that is

patently artificial, unworkable, and unpredictable. As discussed

below, the court departed from the Corps’ definition in three

significant respects, the result of which would be the exclusion of

broad categories of adjacent wetlands from 404 regulation.

First, the Corps’ definition addresses lands that are “inundated

or saturated by surface or ground water at a frequency and

duration sufficient to support” aquatic vegetation. 33 C.F.R. §

323.2(c) (1984). In its discussion, however, the circuit court

completely ignored saturation and focused exclusively on inunda-

tion as the essential source of water in classifying an area as a

wetland. Moreover, it compounded this error throughout its

opinion by misquoting the regulatory definition, conspicuously

omitting the words “or saturated by surface or ground water.” See

729 F.2d at 396-398.

From a scientific point of view, it is the presence of water in the

soil or substrate of a particular duration and fre-

quency—regardless of how it got there—which determines the

ability of plants to grow in and dominate an area. As the U.S. Fish

and Wildlife Service has explained:

“Wetlands are lands where saturation with water is the

dominant factor determining the nature of soil development

and the types of land and animal communities living in the

soil and on its surface. The single feature that most wetlands

share is soils or substrate that is at least periodically satu-

rated 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.”

24

Fish and Wildlife Service, U.S. Dep’t of the Interior, Classifica-

tion of Wetlands and Deepwater Habitats of the United States 3

(1979).

The disjunctive nature of the Corps’ definition is thus particu-

larly appropriate given the variability of hydrologic regimes con-

trolling waters throughout the nation. Nowhere is this more

evident than in California where, along its 1,000-mile coastline,

wetlands exist on a continuum between wet and alternating wet

and dry conditions. In the northern portions of the state, flooding

(inundation) may be the primary source of waters giving rise to a

wetland area. In the drier, southern half of the state, by contrast,

wetlands are more likely to be sustained by virtue of ground water

saturation or surface water runoff as a result of precipitation. See

California Coastal Commission, Statewide Interpretative Guide-

lines for Wetlands and Other Wet Environmentally Sensitive

Habitat Areas 33, 78 (1981). Under the Corps’ definition, both

would properly be reached by Section 404 regulations. The test

created by the Court of Appeals, on the other hand, would simply

cleave wetlands of the latter kind out of the agency’s definition.'°

The second major flaw in the Court’s test is the requirement

that flooding from the navigable waters must be “frequent”.

There is no such requirement in the Corps’ wetland definition.

Indeed, while noting that the Corps eliminated in its final regula-

tion the element of “periodic” inundation contained in its previ-

ous definition, 729 F.2d at 395, the court in its holding appears to

resurrect that very requirement.

The record in this case well underscores the difficulty the first

district court judge had in addressing the question of whether

Riverside’s property was “periodically inundated.” Pet. App. 25a-

31a. The Corps was particularly aware of that difficulty and

'S The Corps’ definition, because it covers both saturation and inunda-

tion, also furthers congressional recognition that protection of the

wetlands of the United States requires “an ‘organic’ concept of the

national aquatic system” and thus “a permit system with ‘no gaps’ in its

protective measures.” United States v. Huebner, 752 F.2d 1235, 1240 &

n. 9 (7th Cir. 1985). The Sixth Circuit's test does not begin to address

that congressional intent.

scenic neeaeiaieaaiel

25

indeed of the district court’s decision in preparing its final wetland

regulation. 42 Fed. Reg. 37,124 & 37,128 (1977). To provide

greater clarity for both landowners and regulators, the agency

intentionally revised its definition to eliminate the requirement of

showing inundation “over a record period of years”.'® The circuit

court’s test nonetheless would reintroduce such a requirement and

the very uncertainty created under the Corps’ earlier test. It gives

no guidance whatsoever concerning how frequent is “frequent” or,

for that matter, what hydrologic proof would be required merely

to determine whether an application for a 404 permit must be

made to the Corps for a particular discharge activity.

Lastly, the court’s holding is completely off the mark in its

requirement that to subject an “adjacent” wetland to 404 regula-

tion, not only must it be “frequenily flooded”, but the flooding

must flow from the navigable waters. This limitation arbitrarily

excludes from 404 regulation wetlands feeding, rather than fed by,

adjacent streams, lakes, or seas. It would therefore place outside

the Corps’ jurisdiction discharge activities having a clear and

direct impact upon the quality of such waterways—a result

Congress clearly did not intend.'’ Congress rejected such artificial

'° The Corps explained in the preamble to the 1977 revision of its

regulations:

“This definition is intended to eliminate several problems and

achieve certain results. The reference to ‘periodic inundation’ has

been climinated. Many interpreted that term as requiring inunda-

tion over a record period of years. Our intent under Section 404 is

to regulate discharges of dredged or fill materials into the aquatic

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

period of time. The new definition is designed to achieve this intent.

It pertains to an existing wetland and requires that the area be

inundated or saturated by water at a frequency and duration

sufficient to support aquatic vegetation. .. .”

42 Fed. Reg. 37,128 (1977).

ad Although the instant case involves wetlands “adjacent” to water-

ways that are navigable-in-fact, it should be recognized that the Sixth

Circuit’s holding would deprive the Corps of jurisdiction over isolated

wetlands, as well. The latter serve crucial ecological funct ons in their

own right. In Nebraska, for example, most wetlands are isolated from

26

limitations, recognizing that “[w]ater moves in hydrological cy-

cles and it is essential that discharge of pollutants be controlled at

the source.” 2 Leg. Hist. at 1495; see also Avoyelles Sportsmen's

League v. Marsh, 715 F.2d at 915; United States v. Ashland Oil,

504 F.2d at 1329.

To summarize, therefore, in contrast to the test created by the

circuit court, the Corps’ wetland regulation provides a biologically

sound, workable methodology for identifying wetlands. It is con-

sistent with and facilitates the means Congress has chosen to

control water pollution. The Court of Appeals should have de-

ferred to that regulation.

Applying the regulation to the facts of this case, moreover, we

see that the record amply demonstrates that the property at issue

is a wetland. Riverside’s property is located but 200 feet from

Black Creek, a navigable tributary of Lake St. Clair. Pet. App.

23a-24a. In addition, it is approximately one mile from Lake St.

Clair, a significant commercial waterway linking the Upper and

Lower Great Lakes with a 27-foot seaway channel. JA 17; see

Hoopengarner v. United States, 270 F.2d 465, 471 (6th Cir.

1959). The principal use of this lake and its shoreline is recrea-

tional, including boating, fishing, and seasonal waterfowl hunting.

JA 17.

The record shows that Riverside’s property is part of a larger

wetland system that borders Lake St. Clair. JA 16-20, 58.

Further, it is part of an undeveloped area that runs to Black

Creek, which has exhibited wetland vegetation and saturated soils

for decades. JA 51-53, 56, 58-59, 64-65, 67-68, 70-71. Signifi-

cantly, the evidence below made clear that the unfilled portions of

Riverside’s parcel itself are characterized by the prevalence of

wetland vegetation that both requires and is supported by satu-

rated soil conditions. JA 26, 28-29, 33, 35, 39-42, 47-48, 55, 77.

Finally, expert testimony described the environmental functions

of this area as providing habitat for muskrats and birds and

surface tributaries of traditionally navigable waters, but they are none-

theless of vital importance to migrating sandhill cranes and waterfowl in

the Central Flyway. See Wetlands of the U.S. at 46-48.

27

furnishing food resources for fish in nearby Lake St. Clair. JA 39-

42, 55, 62-63, 72, 75-76.

This evidence fully supports the conclusion reached by the

district court that large portions of Riverside’s property constitute

“adjacent wetlands” and thus “waters of the United States”, as

defined by the Corps in its regulations implementing the 404

permit program. Amici therefore submit that the trial court was

correct in its determination that Riverside’s discharge activities

are subject to the Corps’ 404 permit jurisdiction.

CONCLUSION

For the foregoing reasons, amici respectfully submit that the

decision of the Court of Appeals should be reversed.

DATED: May 6, 1985.

JOHN K. VAN De Kamp

Attorney General of California

N. GreGory TAYLOR

THEODORA BERGER

Assistant Attorneys Generai

STEVEN H. KAUFMANN

Davip W. HAMILTON

(Counsel of Record)

Deputy Attorneys General

350 McAllister Street

6000 State Building

San Francisco, CA 94102

(415) 557-2013

Attorneys for Amici State of

California, John K. Van De Kamp,

Attorney General of California,

California Coastal Commission,

San Francisco Bay Conservation

and Development Commission,

and California Coastal

Conservancy

Joseph I. Lieberman

Attorney General

State of Connecticut

MICHAEL A. LILLY

Attorney General

State of Hawaii

NelL F. HARTIGAN

Attorney General

Jit. Wine-BANKS

Solicitor General

State of Illinois

WILLIAM J. GusTe, Jr.

Attorney General

State of Louisiana

STEPHEN H. SACHS

Attorney General

State of Maryland

Husert H. Humpnureey, [Il

Attorney General

State of Minnesota

WILLIAM L. WEBSTER

Attorney General

State of Missouri

Mike GREELY

Attorney General

State of Montana

ROBERT M. SPIRE

Attorney General

State of Nebraska

PAUL BARDACKE

Attorney General

State of New Mexico

Lacy H. THORNBURG

Attorney General

State of North Carolina

ARLENE VIOLET

Attorney General

Rhode Island

W. J. MICHAEL Copy

Attorney General and

Reporter

State of Tennessee

JEFFREY L. AMESTOY

Attorney General

State of Vermont

CHARLIE BROWN

Attorney General

State of West Virginia

BRONSON C. LA FOLLETTE

Attorney General

State of Wisconsin