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

Supreme Court, U.S.

FILED

No. 84-701 JUN 28 1985

eee

IN THE CLERK

ALEXANDER L. STFVAS

Supreme Court of the United States

OCTOBER TERM, 1984

UNITED STATES OF AMERICA,

Petitioner,

v.

RIVERSIDE BAYVIEW HOMBs, INC., et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

R. SARAH COMPTON

Counsel of Record

PATRICIA J. BENEKE

Kurt J. OLSON

McDERMOTT, WILL & EMERY

1850 K Street, N. W., Suite 50

Washington, D.C. 20006

(202) 887-8000

Attorneys for Amicus Curiae

The Chamber of Commerce

of the United States

Of Counsel:

ROBIN S. CONRAD

THE NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

June 28, 1985

Em

WILSON - Eres PRINTING Co.. Inc. - 789-0096 - WaSHINGTON, D.C. 20001

mm BEST AVAILABLE COPY

QUESTION PRESENTED

Whether section 404 of the Clean Water Act, 33 U.S.C.

1251 et seqg., authorizing regulation of the deposit of

dredged or fill material into “navigable waters,” also

grants jurisdiction for regulation of hydrologically iso-

lated wetlands.

(i)

TABLE OF CONTENTS

Page

e ... 1

ä 3

e 6

EEE EL „ 7

I. CONGRESS HAS NEVER MANIFESTED

ANY INTENT TO EXTEND FEDERAL JU-

RISDICTION UNDER THE CLEAN WATER

ACT (“CWA”) TO HYDROLOGICALLY ISO-

LATED WETLANDS. S. a — 7

A. The Goals of The CWA Are Attainable

Without Any Federal Jurisdiction Over

Such Isolated Wetlands. 7

B. The 1972 Amendments Neither Expressly

Nor Implicitly Adopted Any Regulatory De-

vice For Wetlands, Much Less for Those

Wetlands Which Are Hydrologically Iso-

r ˙ ...... 95

C. The Legislative History of the 1977 Amend-

ments Reflects No Congressional Intent to

Inelude Hydrologically Isolated Wetlands In

the Definition Of “Navigable Waters“). 14

II. THE CWA IS NEITHER A WETLANDS

PRESERVATION ACT NOR A LAND USE

r . 17

(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715

a kl LR eo 4

Economy Light and Power Co. v. United States,

I a I i ial ieee 11

Federal Trade Commission v. Dean Foods Co., 384

, ̃ iini... a 15

Helvering v. Hallock, 309 U.S. 106 (19400) 15

Lake County Estates, Inc. v. Tahoe Regional Plan-

ning Agency, 440 U.S. 391 (19799 18

Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir.

ICIS RN ra? AMINE ARS Sr! A 4

Oklahoma ex rel. Phillips v. Guy F. Atchinson Co.,

| RES EES a 11

The Daniel Ball, 77 U.S. 999 (10 Wall. 557)

—— A A eee eS a a 11

The Montello, 87 U.S. 391 (20 Wall. 430) (1874)... 11

United States v. Appalachian Electric Power Co.,

& 8 Ff ̃ (ꝙ . il

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

EE RN EA A RAS e 4

United States v. Standard Oil Co., 384 U.S. 224

ESS ESS a nS re es ae 4 8

United States v. Tilton, 705 F.2d 429 (llth Cir.

1 rr 1 4

U.S. CONSTITUTION :

Art. I, § 8, cl. 3 (Commerce Clause) Ra x

STATUTES:

Clean Water Act, 33 U.S.C. § 1251 et seg. passim

r EEE Sree tao 2

e 4, 6, 7

e 18

r 2

$3 U.S.C. § 1811. ccc 7, 17, 18

/ / 7

EE x - 18

| tk —— 7

2, 6, 7, 17

V

TABLE OF AUTHORITIES—Continued

Page

I -- eecamsieeele 16

r 16

. . 3, 9

ALA. CODE §§ 9-7-10 to 22 (1980, Supp. 1984) 19

ALASKA STAT. 88 46.40.010 to .210 (1982, Supp.

. 19

CAL. PuB. RES. Cob §§ 5001.5-65 (Supp. 1984) 19

CONN. GEN. STAT. §§ 22a-28 to 32, 22a-90 to 122

e . eusmmbelubeesanee 19, 20

DEL. CODE ANN. tit. 7, S8 7001-7013 (Supp. 1983) 19

GA. CODE §§ 125-210 to 312 (1982, Supp. 1984) 19

HAWAII REv. STAT. S5 205A-1 to 22 (1976, Supp.

SAE EPS Sh A ee RES Et 19

LA. REV. STAT. ANN. §§ 213.1 to 22 (West 1985) 19

ME. REv. STAT. ANN. tit. 38, §§ 471-478, tit. 12,

$$ 4751-4758 (1978, Supp. 1984) 2000. 19

Mp. NAT. RES. CODE ANN. §§ 9-101 to 501 (1974).. 19, 20

Mass. ANN. LAWS ch. 131, §§ 40, 40 (a), ch. 252

$§ 1-24 (Michie/Law. Co-op. 1980, Supp. 1985) 19

MICH. STAT. ANN. 58 18.595 (51) to (72) (Callag-

, . 19

MINN. Srar. §§ 105.37 to .403 (1977, Supp. 1985) 19

Miss. CoDE ANN. §§ 49-27-1 to 69 (Supp. 1984). 19, 20

MONT. CODE ANN. §§ 75-7-101 to 308 (1983, 1984) 19

N. H. REV. STAT. ANN. §§ 483-A:1-7 (1983 . 19

N. J. STAT. ANN. SS 13:9A-1A to 9A-6, 17-1 to 17-

86, 18A-1 to 18A-29 (West 1979, Supp. 1984) 19

N.Y. ENvT. CONSERV. Law SS 24-0101 to 1305,

SS 25-0101 to 0404, §§ 34-0101 to 0113 (Me-

D ea a 19, 20

N.C. GEN. STAT. $§ 113A-100 to 128 (1983 19

N.D. CENT. CODE §§ 29-06, 3101 to 10 (Supp.

11J%ͤĩ ⁵˙b ˙ DI. T— lace 19

Pa. STAT. ANN. 58 11941, 11945 (Purdon Supp

—1 ̃ A atutibiemmenned 19

R. I. GEN. LAWS 58 2-1 13 to 27, 88 46-23-1 to 18

, x 19, 20

S.C. CoDE ANN. 58 48-39-10 to 220) (Supp. 1984) 19

TEX. NAT. RES. CODE §§ 33.001 to .238, 88 155.1 to

9 (Vernon 1982, Supp. 198))))))) 19

VA. Cob §§ 62.1-13.1 to 13.8 (1982, Supp. 1985).. 19, 20

vi

TABLE OF AUTHORITIES—Continued

Page

WASH. REV. CoDE ANN. §§ 90.58.020 to .140 (Supp.

K i helenae lalla ide dla sh iniasinians 19

W. VA. CoDE §§ 20-5B-1 to 14 (1981) -................... 19

REGULATIONS:

e eee 2, 4, 15

C. F. . 3e) (10664) ccc cccccccccccccesccceeeees 3

ie e 18

rr 15

MISCELLANEOUS:

A Legislative History of the Clean Water Act,

ee passim

A Legislative History of the Water Pollution Con-

trol Act Amendments of 1972, 93d Cong., Ist

r ˙ —6ʃm'̃Üé?t...——,˙.˙.,r ] . passim

2 F. GRAD, ENVIRONMENTAL LAW § 10.04 (1984) 19

H.R. 572, 99th Cong., Ist Sess. (19880) 17

H.R. 1000, 99th Cong., Ist Sess. (1985) 17

H.R. 3199, 95th Cong., Ist Sess. (1977777 15

H.R. 11896, 92d Cong., 2d Sess. (1972777 9,11

H.R. 1203, 99th Cong., Ist Sess. (1988) 16

8.626, 99th Cong., Ist Sess. (1985) 000. 17

8.740, 99th Cong., Ist Sess. (1988) ** 16

S. 1952, 95th Cong., Ist Sess. (1977)77 15

S. 2770, 92d Cong., Ist Sess. §502(h) (19717 9, 10

S. 1035, 99th Cong., Ist Sess. (1988) 17

Office of Technology Assessment, Congress of the

United States OTA-0-206, Wetlands Their Use

1 — . —— 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-701

UNITED STATES OF AMERICA,

8 Petitioner,

RIVERSIDE BaYVIEW HOMES, INC., et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST '

The Chamber of Commerce of the United States

Chamber“ is the largest federation of business organ-

izations and individuals in the United States. Current

Chamber membership includes more than 180,000 cor-

porations, partnerships and proprietorships, as well as

several thousand trade associations and state and local

chambers of commerce. The Chamber regularly advocates

its members’ views in court on issues of national con-

This brief is filed with the written consent of the parties pur-

suant to Supreme Court Rule 36.2. The parties’ letters of consent

are on file with the Clerk of this Court.

cern to the American business community. The Cham-

ber’s interest in environmental issues is well-established.’

This case is important to the business community be-

cause it involves the scope of the jurisdiction of the

United States Government over certain isolated wetlands

under section 404 of the Clean Water Act (“CWA” or

Act“) “ 33 U.S.C. §§ 1251, 1344 (1982). In particular,

this case poses the question of whether hydrologically

isolated wetlands are appropriately included in the regu-

latory definition of “waters of the United States” for

purposes of the dredged and fill permitting program

which is administered jointly by the U.S. Environmental

Protection Agency (“EPA”) and the U.S. Army Corps

of Engineers (“Corps”). Under the Corps’ present defi-

nition of “waters of the United States,” the 80 acres of

partially developed suburban land at issue here would be

within the Corps’ jurisdiction and subject to a prohibition

against all development, merely because the land itself

is sometimes wet.

The Chamber views the Government’s assertion of ju-

risdiction over such hydrologi-ally isolated wetlands as a

classic example of federal reguiatory overreaching. The

2 See, e.g., Dow Chemical Co. v. United States, 749 F.2d 307 (6th

Cir. 1984), cert. granted, 53 U.S.L.W. 3865 (U.S. June 10, 1985)

(No. 84-1259); Chemical Manufacturers Association v. Natural

Resources Defense Council, Inc., 53 U.S.L.W. 4193 (U.S. February

27, 1985); Natural Resources Defense Council, Inc. v. Environ-

mental Protection Agency, 595 F. Supp. 65 (D.D.C. 1984), appeal

docketed, Nos. 84-5566-69 (D.C. Cir. 1984).

The Federal Water Pollution Control Act was originally en-

acted by the Act of June 30, 1948, ch. 758, 62 Stat. 1155. The Act

has been subsequently amended and was substantially revised in

1972. Federal Water Pollution Control Act of 1972, Pub. L. No. 92-

500, 86 Stat. 816. In 1977, the Act again wa substantially revised

and renamed the Clean Water Act. 33 U.S.C. §1251 note. The

statute is referred to by its new name throughout the brief.

* The definition of “waters of the United States” is set forth at

33 C.F.R. 323.204 (1984).

WA is not, and was not designed to be, a wetlands

preservation statute. Yet, by asserting regulatory juris-

diction over such wetlands, the Government has attempted

to convert this Act into the equivalent of a national wet-

lands law, even though productive economic use of such

lands would pose no threat to the quality of the nation’s

waters.

Many Chamber members have had development plans

ruined by the Corps’ assertion of CWA jurisdiction over

their property. Other members have been denied the

potential economic benefits that result from development.

As the principal voice of the American business com-

munity, the Chamber is well-suited to present the broad

interests of business in this case.

STATEMENT

The issue presented in this case is whether hydrolog.

ically isolated wetlands * are appropriately included with-

in the scope of the regulatory definition of “waters of

the United States“ for purposes of the dredged and fill

permitting program of the CWA.

Section 404 of the CWA provides for issuance of per-

mits for the discharge of dredged or fill material into

the “navigable waters,” defined by section 502(7), 33

U.S.C. § 136217), as “waters of the United States, in-

cluding the territorial seas.” The term “waters of the

For purposes of the CWA, “wetlands” are defined by the

Corps as:

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 con-

ditions. Wetlands generally include swamps. marshes, bogs

and similar areas.

33 C.F.R. § 323.2(c) (1984).

* See footnote 4, supra at 2.

4

United States” is not defined in the Act, bit has instead

been defined by the Corps’ regulations. See 33 C. F. R.

$ 323.2(a).

As demonstrated in this case, the Corps has inter-

preted section 404 and this implementing regulation as

a license to engage in the broad-ranging regulation of

hydrologically isolated wetlands which have no relation-

ship whatsoever to the purpose of the CWA—“to restore

and maintain the chemical, physical and biological in-

tegrity of the Nation’s waters.” 33 U.S.C. § 125l(a).

In fact, as demonstrated below, the basic rationale for

extending the concept of “waters of the United States”

to any wetlands at all was to insure that pollution is

stopped at its source, before it could reach those water

bodies traditionally viewed as navigable.’ This rationale

is wholly lacking in the context of hydrologically isolated

wetlands. Consequently, the Chamber asserts that Con-

gress never intended to exert CWA jurisdiction over

such isolated wetlands.*

In analyzing the question before this Court, it is im-

portant to note the several matters not at issue here:

the ecological value of wetlands; the importance of pre-

tecting wetlands; and the constitutional authority of

7 See, e.g., United States v. Byrd, 609 F.2d 1204, 1210 (7th Cir.

1979) (pertaining to wetlands adjacent te a lake and stating,

“Destruction of all or most of the wetlands around [the lake

could significantly impair the attraction the lake holds for inter-

state travelers by degrading the water quality of the lake

Indeed, no court has ever held that Congress so intended. See,

e.g., Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897

(5th Cir. 1983) (pertaining to backwater swamp annually flooded

by rivers); United States v. Tilton, 705 F.2d 429 (11th Cir. 1983)

(pertaining to wetlands hydrologically linked to river 30 feet

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

(pertaining to wetlands adjacent to lake, the destruction of which

could degrade the water quality of the lake); Leslie Salt Co. v.

Froeh'ke, 578 F.2d 742 (9th Cir. 1978) (pertaining to salt ponds

periodically submerged by waters from San Francisco Bay).

5

Congress to enact wetlands preservation legislation if it

so chooses. What is at issue in this case is whether Con-

gress intended, in passing the CWA, to extend the Gov-

ernment’s authority o hydrologically isolated wetlands,

thereby effectively prohibiting development in many cases.

We think not.

The wetlands at issue in this case are distinguishable

from many acres of other wetlands which do, arguably,

play some role in preserving the quality of the nation’s

waters. Here, there is no hydrological connection by

which pollution might move between the water of the

wetland itself and other surface water bodies. Although

surface waters do exist in the vicinity,’ the District Court

found that:

the contiguous navigable waters have not contrib-

uted to the wetland type of vegetation on defend-

ants’ property.

Pet. App. 25a.

Most significantly, the district court expressly adopted

expert testimony that “the nearness of the lake and

nals had no hydrological effect on the soil beyond a

to 100-foot distance (emphasis added. Id. See also

— App. 34a. This hydrological isolation stems from

the type of soil comprising the land in question, i.e.,

Lamson soil, which is impermeable, does not drain well,

and is characterized by high water table and water near

the surface. Pet. App. 25a; Jt. App. 108."

_ Despite the Government's assertion of CWA jurisdic-

Lake St. Clair is one mile east of the land, the Clinton River

is to the north and Black Creek is to the east. Petitioner's Ap-

pendix (“Pet. App.”) 2a, 6a.

% In addition to impermeable soil, measures taken in 1973 to

protect homes and busines es from the flood waters of Lake St. Clair

impaired drainage on the land. Pet. App. 3a.

exert jurisdiction over such hydrologically isolated wet-

lands. Instead, they indicate that Congress intended the

term “waters of the United States” to include only those

water bodies traditionally considered to be the conduits of

interstate and foreign commerce and other waters which

are hydrologically connected thereto—not hydrologically

isolated wetlands such as those involved herein. See A

Legislative History of the Water Pollution Control Act

Amendments of 1972, 93d Cong. Ist Sess. (1973) (Vol-

umes 1 and 2); A Legislative History of the Clean Water

Act, 95th Cong., 2d Sess. (1978) (Volumes 3 and 4)

(hereinafter cited as “Legis. Hist.”) 1 Legis. Hist. at

178, 250-251.

SUMMARY OF ARGUMENT

1. The CWA and the legislative history of the 1972

Amendments and the 1977 Amendments to the Act fail to

establish that Congress intended to extend federal juris-

diction under the CWA to hydrologically isolated wet-

lands. By the terms of the CWA itself (see, e.g., 33

U.S.C. § 1251(a)), and as reflected in the legislative his-

tory of the 1972 Amendments and 1977 Amendments,

Congress’ goal in enacting the CWA was the protection

of water quality. The exercise of federal jurisdiction

over hydrologically isolated wetlands, such as those at

issue herein, is wholly unrelated to the goals of the CWA

and goes far beyond the limits of jurisdiction granted by

section 404 of that Act. 33 U.S.C. § 1344.

2. The CWA is neither a wetlands preservation act

nor a land use planning act. The legislative history of

the 1972 and 1977 Amendments fails to demonstrate that

Congress intended the CWA to be a wetlands protection

statute. Further, there is no indication that Congress

intended the CWA to be used as a land use planning

mechanism to regulate local development. Indeed, land

use planning is a matter traditionally left to states and

local authorities, and many states have adopted their

own measures to protect wetlands.

7

ARGUMENT

I. CONGRESS HAS NEVER MANIFESTED ANY IN-

TENT TO EXTEND FEDERAL JURISDICTION

UNDER THE CLEAN WATER ACT TO HYDRO-

LOGICALLY ISOLATED WETLANDS.

A. The Goals of the CWA are Attainable Without Any

Federal Jurisdiction Over Such Isolated Wetlands.

The CWA is a water quality statute. Its simply-stated

objective is to “restore and maintain the chemical, physi-

cal and biological integrity of the Nation’s waters.” 33

U.S.C. §1251(a). To achieve this objective, Congress

adopted a regulatory scheme designed to limit, and then

eliminate, pollutants discharged into navigable waters.

33 U.S.C. §§ 1311(a), 1342, 1344.

Recognizing that water moves in “hydrological cy-

cles,” Congress enunciated that its intent was to control

pollution at its source. Consequently, Congress adopted

an “end of pipe” technology approach for liquid efflu-

ents,” a point source discharge approach for dredged or

fill materials,“ and extended the geographical jurisdiction

of the Act to the limits necessary to achieve its goals.

Congress realized that to preserve the quality of waters

traditionally considered to be navigable, it was necessary

to extend the scope of the Act to control and regulate wa-

ter hydrologically connected thereto. The unrestricted

discharge of potential pollutants into hydrologically con-

nected waters could affect the quality of those waters and

consequently, the quality of the water bodies forming the

traditional conduits of commerce.

Congress also recognized, however, that federal juris-

diction over the waters and activities therein was not

11 2 Legis. Hist. at 1495.

2 See, e.g., sections 301 and 402 of the CWA, 33 U.S.C. §§ 1311,

1342.

8 See, e.g., section 404 of the CWA, 33 U.S.C. § 1344.

unlimited. Accordingly, Congress tailored its intentions

to meet its express goals. Indeed, as set forth in detail

below, the statements of the conferees clearly demonstrate

that, in their view, the jurisdictional reach of the federal

government was confined to those water bodies forming

a conduit for commerce and other waters hydrologically

connected to such water bodies. This perceived limita-

tion on the jurisdiction of the federal government,

whether or not a correct interpretation of the actual ex-

tent of the power of Congress to regulate the nation’s

waters under the Commerce Clause, art. I, §8, cl. 3,

forms the limiting principle of the federal government’s

jurisdiction under the CWA.

Although Congress undoubtedly could, if it so chooses,

regulate certain dredged or fill activities in isolated or

unconnected wetlands under its Commerce Clause power,

Congress did not intend to do so in enacting the CWA.

Congress specifically sought to maintain the quality of

those water bodies forming a conduit of commerce and

recognized the need to regulate the use of other hydro-

logically connected waters, the degradation or destruction

of which could have an effect on those conduits of com-

merce. The Commerce Clause power was exercised specifi-

cally to accomplish these objectives. In this sense the

term “ ‘navigable waters’ [is] given the broadest possi-

ble constitutional interpretation” as intended by Congress,

(see 1 Legis. Hist. at 818), even though it does not in-

clude hydrologically isolated wetlands. Accordingly, the

CWA should not be interpreted as a blanket grant to

regulate all waters of whatever nature and wherever

14 The geographic scope of federal jurisdiction over water bodies

is defined in terms of conduits of waterborne commerce. Federal

regulatory authority within these geographical confines, however,

is not limited to navigability alone, and the abatement of pollution

is well within the power of the federal government to exercise con-

trol over its waters. United States v. Standard Oil Co., 384 U.S. 224

(1966).

found, regardless of their potential to affect the quality of

the nation’s “navigable waters.”

B. The 1972 Amendments Neither Expressly Nor Im-

plicitly Adopted any Regulatory Device for Wet-

lands, Much Less For Those Wetlands Which Are

Hydrologically Isolated.

When it enacted the 1972 Amendments, Congress did

not enunciate any policy or enact any provision regarding

wetlands preservation or regulation. Indeed, nowhere in

the 1972 Amendments or their legislative history are wet-

lands even mentioned.

The 1972 Amendments did, however, adopt section 404,

a provision designed primarily to consolidate in the Corps

material into navigable waters.“ Like the rest of the

1972 Amendments, section 404 did not reference wet-

lands.

In the 1972 Amendments, Congress authorized the Corps

to issue permits for the discharge of dredged or fill ma-

teria] into navigable waters. Section 404 “navigable wa-

ters” were defined as “the waters of the United States,

including the territorial seas.” 33 U.S.C. § 1362/7).

While this definition is less than explicit, the legislative

history of the 1972 Amendments succinctly establishes

Congress’ intent to regulate only those bodies of water

6qàwZ2—— of Gn Me

tions thereof, 1

the territorial seas and the Great Lakes.

S. 2770, 92d Cong., Ist Sess. §502(h) (1971). In ex-

plaining the purposes of this definition, the Senate Com-

mittee on Public Works stated that:

11

The House version of the 1972 Amendments originally

defined navigable waters as:

[t]he navigable waters of the United States, inelud-

ing the territorial seas.

H. R. 11896, 92d Cong., 2d Sess. § 502 (8) (1972). The

House Committee on Public Works stated in its report

that:

lone term that the Committee was reluctant to

define was the term “navigable waters”. The re-

luctance was based on a fear that any interpretation

would be read narrowly. However, this is not the

Committee’s intent. The Committee fully intends

that the term “navigable waters” be given the

broadest possible constitutional interpretation.

1 Legis. Hist. at 818. Thus, the House definition was

intended to be co-extensive with the federal government’s

constitutionally permissible jurisdiction over navigable

waters.“ Viewed in this light, and with reference to the

case law existing at the time, the House definition of

navigable waters was essentially the same as that of the

Senate, and included waters traditionally considered to be

1 In defining the term “navigable waters“ Congress was aware

of and concerned with prior administrative interpretations of this

term which severely limited the geographic reach of the federal

government. 1 Legis. Hist. at 327, 818. To avoid similar limitations

from being imposed in the case of the CWA, Congress sought to

make very clear, that “navigable waters” was to encompass not

only the traditional conduits of commerce, but also, all waters

hydrologically connected thereto.

7 The case law at the time of the 1972 Amendments, defined

navigable waters of the United States subject to regulation under

the Commerce Clause as those which were navigable in fact, made

so with reasonable improvement, non-navigable portions of other-

wise navigable waters and tributaries of navigable waters. The

Daniel Ball, 77 U.S. 999 (10 Wall. 557) (1870); The Montello, 87

U.S. 391 (20 Wall. 430) (1874); Economy Light and Power Co. v.

United States, 256 U.S. 113 (1920); United States v. Appalachian

Electric Power Co., 311 U.S. 377 (1949) ; Oklahoma ex rel. Phillips

v. Guy F. Atchinson Co., 313 U.S. 508 (1940).

12

conduits of commerce and other waters hydrologically con-

nected thereto. The intent of this definition was expressly

confirmed by the Conference Committee.

The Conference Committee defined “navigable waters“

as:

[t]he waters of the United States, including the

territorial seas.

1 Legis. Hist. at 327. While the Committee struck the

word “navigable” from the definition proposed by the

House, the Committee’s explanation of its actions demon-

strates that the substantive effect of the definition was

intended to be no broader than the jurisdictional scope

established in the House and Senate versions of the defini-

tion.

In the Senate Report on the Conference, the Senate

conferees stated that:

One matter of importance throughout the legisla-

tion is the meaning of the term “navigable waters

of the United States.”

The conference agreement does not define the term.

The Conferees fully intend that the term “navigable

waters” be given the broadest possible constitutional

interpretation unencumbered by agency determina-

tions which have been made or may be made for

administrative purposes.

Based on the history of consideration of this legis-

lation, it is obvious that its provisions and the ex-

tent of application should be construed broadly. It

is intended that the term “navigable waters” in-

clude all water bodies, such as lakes, streams and

rivers, regarded as public navigable waters in law

which are navigable in fact. It is further intended

that such waters shall be considered to be navigable

in fact when they form, in their ordinary condition

by themselves or by uniting with other waters or

other streams of transportation, such as highways

or railroads, a continuing highway over which com-

13

merce is or may be carried on with other states or

with foreign countries in the customary means of

trade and travel in which commerce is conducted

today.

1 Legis. Hist. at 178 (emphasis added).

The same intent of regulating only those water bodies

forming a conduit for commerce and waters hydrologically

connected thereto was expressed by the House Conferees

who recognized a distinction between the new concept of

conduit of commerce and the old technical navigable in

fact test:

[The conference bill describes the term “navigable

waters” broadly for water quality purposes. It

means all “the waters of the United States” in a

geographic sense. It does not mean “navigable wa-

ters of the United States” in a technical sense as

we sometimes see in some laws.

The new and broader definition is in line with more

recent judicial opinions which have substantially ex-

panded the limited view of navigability—derived

from the Daniel Ball case . . —to include water-

ways which would be “susceptible of being used.

with reasonable improvement,” as well as . wa-

terways which include sections presently obstructed

by falls, rapids, and sand bars, currents, floating

debris, et cetera

The U.S. Constitution contains no mention of navi-

gable waters. The authority of Congress over navi-

gable waters is based on the Constitution’s grant to

Congress of Power . . to regulate commerce with

Foreign Nations and among the several States“

Although most interstate commerce 150 years ago

was accomplished on waterways, there is no require-

ment in the Constitution that the waterway must

cross a State boundary in order to be within the

interstate commerce power of the Federal Govern-

ment. Rather, it is enough that the waterway serves

as a link in the chain of commerce among the States

14

as it flows in the various channels of transporta-

tion—highways, railroads, air traffic, radio and pos-

tal communication, waterways, et cetera. The “gist

of the Federal test” is the waterway’s use “as a

highway,” not whether it is “part of a navigable

interstate or international commercial highway.”

1 Legis. Hist. 250-251 (Statement of Rep. Dingell) (em-

phasis added).

Moreover, the Conferees emphasized the purpose for

which the statute was to be enacted:

Thus, the new definition clearly encompasses all

water bodies, including main streams and their trib-

utaries, for water quality purposes.

Id.

The legislative history of the 1972 Amendments demon-

strates that while not explicitly defining the term “navi-

gable waters,” Congress intended it to encompass all wa-

ters forming a conduit for interstate and foreign com-

merce and all waters which are hydrologically connected

thereto, the use, destruction or degradation of which

would affect the quality of these main water bodies.

Isolated wetlands were not viewed by Congress as “navi-

gable waters” and were not intended to be covered by the

Act.

C. The Legislative History of the 1977 Amendments

Reflects No Congressional Intent to Include Hydro-

logically Isolated Wetlands in the Definition of

“Navigable Waters.”

No action taken subsequent to 1972 alters the conclu-

sion that hydrologically isolated wetlands do not fall

within the meaning of the term “navigable waters” for

purposes of the CWA. As in 1972, the legislative history

to the 1977 amendments fails to lend any support to the

proposition that hydrologically isolated wetlands fall

within the purview of the Government’s regulatory au-

15

thority." Significantly, the 1977 amendments did noth-

ing to change the statutory definition of “navigable

waters.“ Thus, it is the history of the 1972 amend-

ments rather than the history of the amendments of 1977,

that is instructive on the issue of legislative intent with

respect to the meaning of “navigable waters” and the

reach of the Corps’ jurisdiction.”

The legislative history to the 1977 amendments recon-

firms that Congress’ objective in enacting the statute was

the protection of water quality.“ Congress evidenced its

concern for water quality when it added, in 1977, two

provisions in section 404 only after making. or requiring

18 Note that the Corps has equivocated on its own thoughts and

position concerning the definition of “navigable waters.” On

May 12, 1983, the Corps published proposed regulations providing

that in order for wetlands to be “adjacent” to waters of the United

States and therefore “navigable waters” under the CWA, they must

not only be “bordering, contiguous, or immediately neighboring,”

but must also have “a reasonably perceptible surface or sub-surface

hydrologic connection to a water of the United States.” 4° Fed.

Reg. 21466, 21474 (1983). The currently applicable regulations,

promulgated in 1977, contain a much broader definition of navigable

waters. See 33 C. F. R. § 323.2(a).

1% The 1977 legislative history does reflect a concern over the

excessive exercise of jurisdiction by the Corps. In the House of

Representatives, H.R. 3199 passed overwhelmingly, limiting the

extent of the Corps’ jurisdiction. After narrowly cefeating a

comparable provision offered by Senator Bentsen, the Senate de-

clined to redefine “navigable waters,” in its bill, 8.1952, which was

essentially the version adopted by the Conference Committee.

2° Congressional inactivity in 1977 with respect to the definition

of “navigable waters” ought not to be construed as an expression

of congressional intent. Federal Trade Commission v. Dean Foods

Co., 384 U.S. 597 (1966) ; Helvering v. Hallock, 309 U.S. 106 (1940).

2! See, e.g., Statement of Senator Muskie inserting testimony of

Russel Train declaring that the “overriding purpose” of the CWA

is “to restore and maintain the ecological health of our nation’s

waters.” 4 Legis. Hist. at 851.

16

the Corps to make, a threshold determination regarding

the effect on water quality. 33 U.S.C. § 1344/e), f.

One such provision, subsection 404(e), authorized the

Corps to issue general permits for categories of activities

involving discharges of dredged or fill material, only when

such activities have been determined to have “minimal

cumulative adverse effects” on water quality. Similarly,

Congress added subsection 404(f), which exempted from

the operation of section 404 certain activities, including

normal farming, silviculture, and ranching activities, that

Congress deemed not to have a serious adverse impact

on water quality. As expressed in the Conference Report

to the 1977 amendments:

These specified activities should have no serious ad-

verse impact on water quality if performed in a

manner which will not impair the flow and circula-

tion patterns and the chemical and biological charac-

teristics of the affected waterbody and which will

not reduce the reach of the affected waterbody.

3 Legis. Hist. at 283.

Congress’ focus, then, continued to be the protection

of water quality. Recognizing that certain activities

would not have adverse effects on water quality, Congress

proceeded to exempt them, or authorize their exemption,

from the requirements of section 404. Indeed, if wet-

lands protection per se rather than water quality were

at the heart of the CWA, it is unlikely that Congress

would have adopted these exemptions.”

22 It is of note that Congress has seen fit to introduce several

proposals with the express purpose of preserving wetlands. Indeed,

several wetlands protection bills have been introduced in the cur-

rent session of Congress. Prominent among the legislation intro-

duced this session is H.R. 1203, 99th Cong., Ist Sess. (1985), the

Emergency Wetland Resources Act of 1985. Similarly, the Senate

has introduced S. 740, 99th Cong., Ist Sess. (1985), the Emergency

Wetlands Resources Act of 1985, which provides for a range of

activities aimed at protecting wetlands.

[Continued |

17

II. THE CWA IS NEITHER A WETLANDS PRESER-

VATION ACT NOR A LAND USE PLANNING ACT.

Notwithstanding the overriding water quality objective

of the CWA, section 404 has been expanded such that it

now encompasses wetlands preservation and land use

management. As discussed above, this expansion is en-

tirely inconsistent with Congress’ intent.“ Moreover by

this expansion, the Government is entering a realm of

broader land use issues that are appropriately regulated

by the states through !ocal legislation.

Privr to engaging in any activity which involves the

discharge of dredged or fill material into navigable

waters, a person must obtain a permit from the Corps.

33 U.S.C. §§ 1311, 1344. Absent such a permit, the

activity is in violation of the CWA, and the person en-

22 | Continued |

cludes: H.R. 572, 99th Cong., Ist Sess. (1985), the National Wet-

lands Inventory and Evaluation Act (a bill to authorize the Secre-

tary of the Interior to classify and inventory wetlands resources,

to measure wetlands degradation, to evaluate the environmental

contribution of natural wetlands, and for other purposes); H.R.

1000, 99th Cong., Ist Sess. (1985), 8.626, 99th Cong., Ist Sess.

(1985), the Farm Debt Restructure and Conservation Set Aside

poses in wetlands, uplands and highly erodible land); and S. 1035,

99th Cong., la} Sess. (1985), the Fragile Lands Conservation and

Wetlands Protection Act of 1985 (a bill to promote the conserva-

tion of highly erodible land and wetlands, and for other purposes).

tivities requiring a permit. As stated by the Office of Technology

Assessment, “Projects that are abandoned, made less or

developments and tax revenue.” Office of Technology Assessment,

Congress of the United States, OTA-0-206, Wetlands Their Use and

Regulation (1984) at 153.

18

gaging in the activity is subject to civil penalties and

criminal sanctions. 33 U.S.C. §§ 1311, 1339. Accord-

ingly, the Corps often is the final arbiter of whether an

activity is or is not conducted. In the case of isolated

wetlands, this role assumed by the Corps places it in the

position of determining the propriety of local land de-

velopment. See, e. g., 40 C.F.R. Part 230 (1984) (Section

404 (b) (1) Guidelines for Specification of Disposal Sites

for Dredged or Fill Material, requiring an assessment of

practicable alternatives).

The regulation and control of land use, however, is

traditionally a function performed by local governments

which, unless usurped deliberately by Congress, remains

with the states. See Lake County Estates, Inc. v. Tahoe

Regional Planning Agency, 440 U.S. 391, 401 (1979).

This traditional state role was expressly recognized by

Congress in the CWA. 33 U.S.C. § 1251(b). In the dec-

laration of goals and policy of the 1972 Amendments,

Congress stated that it was its policy te:

KJ ecognize, preserve and protect the primary re-

and rights of states to prevent, reduce,

and eliminate pollution, to plan the development and

use (including restoration, preservation and en-

hancement) of land and water resources.

Id. The role of the states also was recognized by Con-

gress when considering the 1977 Amendments. As ex-

pressed by Congressman Roberts in debating the confer-

ence report to the 1977 CWA amendments:

3 Legis. Hist. at 348 (Statement of Mr. Roberts). See

also 3 Legis. Hist. at 419 (Statement of Mr. Harshaw)

19

(“The conference amendment recognizes that the States

should be responsible for controlling the discharge of

dredged or fill material in State waters that do not in-

volve interstate or foreign commerce.

Being essentially a land use control function, the pro-

tection of hydrologically isolated wetlands is thus ap-

propriately exercised by the states. Indeed, numerous

states—nearly half—have enacted wetlands protection

legislation.“

All of the coastal states have adopted some legislation

to protect coastal resources. 2 F. GRAD, ENVIRONMENTAI.

LAW § 10.04 (1984). Nearly all of this legislation pro-

vides, in essence, that its purpose is to protect, preserve

and enhance wetlands and other coastal areas, while pro-

™ See, e. g., ALA. Cope §§9-7-10 to 22 (1980, Supp. 1984);

ALASKA Stat. §§ 46.40.010 to 210 (1982, Supp. 1984); Can. Pus.

Res. Cope §§ 5001.5-65 (Supp. 1984 Conn. GEN. Stat. chap. 440,

§§ 22a-28, 22a-90 to 122 (1975, Supp. 1983) ; DeL. Cope ANN. tit. 7.

$§ 7001-7013 (Supp. 1983); Ga. Cope §§ 12-5-210 to 312 (1982);

Hawatt Rev. Stat. §§ 205A-1 to 22 (1976, Supp. 1982); La. Rev.

STAT. ANN. tit. 49, ch. 213, §§ 213.1 to 22 (West 1985); Me. Rev.

STAT. ANN. tit. 38, §§ 471-478, tit. 12, §$§ 4751-4758 (1978, Supp.

1984); Mp. Nat. Res. Cope ANN. §§ 9-101 to 501 (1974); Mass.

ANN. Laws ch. 131, §§ 40, 40(a), ch. 252, §§ 1-24 (Michie/Law.

Co-op. 1980, Supp. 1985) ; Micn. Stat. ANN. 6 18-595(51) to (72)

(Callaghan Supp. 1985); Minn. Stat. §§ 105.37 to 408 (1977,

Supp. 1985); Miss. Cob ANN. §§ 49-27-1 to 69 (Supp. 1984);

MONT. Cope ANN. §§ 75-7-101 to 308 (1983, 1984); N.H. Rev. Star.

ANN. §§ 483-A:1-7 (1983); NJ. STaT. ANN. §§ 13:9A-1A to 9A-4,

17-1 to 17-86, 18A-1 to 18A-29 (West 1979, Supp. 1984); N.Y.

Exvr. Conserv. Law §§ 24-0101 to 1305, §§ 25-0101 to 0404, 34

0101 to 0113 (McKinney 1981); N.C. Gen. Stat. §§ 1134-100 to

128 (1983); N.D. Cent. Cope §§ 29-06.31-01 to 10 (Supp. 1983) ;

Pa. STAT. ANN. §§ 11941, 11945 (Purdon Supp. 1985); RJ. Gen.

LAWS §§2-1-13 to 27, §§ 46-23-1 to 18 (1980 Supp. 1983); S.C.

Cope ANN. tit. 48, ch. 39, §§ 48-39-10 to 220 (Supp. 1984); Tex.

Nat. Res. Cope, §§ 33.001 to .238, §§ 155.1 to 9 (Vernon 1982,

Supp. 1984); Va. Cope tit. 62, §§ 62.1-13.1 to 138 (1982, Supp.

1985); Wasn. Rev. Cope ANN. §§ 90.58.020 to .140 (Supp. 1985) ;

W. Va. Cope art. 5B §§ 20-5B-1 to 14 (1981).

viding for sound resource development and management,

and for the protection of certain private rights. /d.

See, e.g., Mp. Nat. Res. Cope ANN. § 9-102 (1974)

(stating a purpose of preserving and protecting wetlands

functions while preserving riparian rights); Miss. Cob

ANN. § 49-27-3 (Supp. 1984) (providing for preserva-

tion of natural state of coastal wetlands and prevention

of their despoilation except under limited circumstances) ;

N.Y. Envt. Conserv. Law § 25-0102 (McKinney 1981)

(providing for preservation and protection of tidal wet-

lands); Va. Cope § 62.1-13.1 (1982, Supp. 1985) (pro-

viding for preservation of wetlands and prevention of

their despoilation and destruction together with accom-

modation of necessary economic development in manner

consistent with wetlands preservation“

Consequently, in view of the fact that the legislative

ning act, the Government’s attempt, through the exercise

of jurisdiction under section 404, to preserve and regu-

|

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Conn. GEN. STAT.

i

.

:

21

CONCLUSION

For these reasons and those stated in the Brief of Re-

spondents Riverside Bayview Homes, Inc., the Chamber

respectfully urges the Court to rule that hydrologically

isolated wetlands do not fall within the jurisdiction

granted by section 404 of the CWA.

Respectfully submitted,

R. SARAH COMPTON

Counsel of Record

PATRICIA J. BENEKE

Kurt J. OLSON

McDermott, WILL & EMERY

1850 K Street, N.W., Suite 500

Washington, D.C. 20006

(202) 887-8000

Attorneys for Amicus Curiae

The Chamber of Commerce

of the United States

Of Counsel:

Rosin S. CONRAD

THE NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

June 28, 1985