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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 121

## Text

No. 84-701

== o/s

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0360%3A11. Public record. Not legal advice.