UNITED STATES OF AMERICA, PETITIONER V. RIVERSIDE BAYVIEW HOMES, INC., ET AL. No. In the Supreme Court of the United States October Term, 1984 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PARTIES TO THE PROCEEDING In addition to the parties listed in the caption, Allied Aggregate Transportation Company is a respondent in this case. So far as the United States is aware, Allied has no interest in the case separate from that of Riverside Bayview Homes, Inc. Cf. App., infra, 22a n.2. TABLE OF CONTENTS Question Presented Parties to the Proceeding Opinions below Jurisdiction Statute and regulations involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-19a) is reported at 729 F.2d 391. The judgment order of the district court (App., infra, 42a-44a) is unreported. Two previous opinions of the district court (App., infra, 22a-31a, 32a-41a) are also unreported. JURISDICTION The judgment of the court of appeals was entered on March 7, 1984. A petition for rehearing was denied on June 8, 1984 (App., infra, 20a-21a). On August 27, 1984, Justice O'Connor extended the time for filing a petition for a writ of certiorari to and including November 5, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE AND REGULATIONS INVOLVED Relevant provisions of the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., and implementing regulations promulgated by the United States Army Corps of Engineers are reprinted at App., infra, 45a-48a. QUESTION PRESENTED Whether, under the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., federal jurisdiction to regulate discharges into "wetlands" is limited to areas that support aquatic vegetation only by virtue of "frequent flooding" from adjacent streams, lakes, or seas. STATEMENT 1. The court of appeals has held that respondent's property is not the kind of "wetland" that is subject to the regulatory jurisdiction of the United States Army Corps of Engineers and hence that respondent may fill in its property without securing a permit under Section 404 of the Clean Water Act of 1977 (CWA), 33 U.S.C. 1344. The issue presented by this case is the extent to which the Nation's "wetlands" are "waters of the United States" within the meaning of Section 502(7) of the CWA, 33 U.S.C. 1362(7), and therefore subject to federal regulatory jurisdiction. Before turning to the facts of this case, we set forth a brief description of "wetlands" generally and the statutory and regulatory scheme for their protection. a. In general, and not as a strictly legal or jurisdictional matter, wetlands are areas characterized by vegetation growing in soils that are periodically or normally saturated with water. See generally Office of Technology Assessment, Congress of the United States, OTA-0-206, Wetlands: Their Use and Regulation (1984) (hereinafter cited as Wetlands); Council on Environmental Quality, Our Nation's Wetlands, An Interagency Task Force Report (1978) (hereinafter cited as Our Nation's Wetlands). Familiar types of wetlands are marshes, swamps, and bogs. Wetlands occur along gradually sloping areas between uplands and deep-water environments, such as rivers, or form in basins that are isolated from larger water bodies. Wetlands 3. Freshwater wetlands, which account for approximately 90% of total remaining wetlands in the country, may be fed by ground water, surface springs, streams, runoff from the surrounding terrain, or a combination of these sources. Our Nation's Wetlands 10. Water levels in freshwater wetlands rise and recede in part according to rainfall, so that at times they may be quite dry. Ibid. It is widely recognized that wetlands perform unique ecological services. For example, many wetlands purify water by holding nutrients and recycling pollutants, they provide flood protection by retarding surface runoff from rainwater and shielding upland areas from storm damage, and they also provide vital food resources and habitat for fish and wildlife. Our Nation's Wetlands 19-27; see also 123 Cong. Rec. 26718-26719 (1977) (remarks of Sen. Baker). In a 1977 congressional debate, it was reported that wetlands provide $140 billion worth of flood protection and water purification services. 123 Cong. Rec. 38994 (1977) (remarks of Rep. Lehman). b. The Clean Water Act of 1977 is a comprehensive statute designed "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. 1251(a). /1/ In Section 301(a) of the CWA, 33 U.S.C. 1311(a), Congress enacted an absolute prohibition against the discharge of pollutants into the Nation's waters, excepting only discharges made in compliance with other sections of the Act. Pursuant to Section 404 of the CWA, 33 U.S.C. 1344, the United States Army Corps of Engineers administers a permit program for the discharge of dredged or fill material into "navigable waters." The statute defines "navigable waters" as "waters of the United States, including the territorial seas." 33 U.S.C. 1362(7). The Corps of Engineers first published regulations further defining "navigable waters" for purposes of the Section 404 permit program on April 3, 1974. 39 Fed. Reg. 12115. Those regulations limited the Corps' jurisdiction under Section 404 of the same waters previously regulated by the Corps pursuant to the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. 401 et seq. Thus, "navigable waters" for both Section 404 and Rivers and Harbors Appropriation Act purposes initially were defined by the Corps as "those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce" (33 C.F.R. 209.120(d)(1) (1974). Under this definition, commonly referred to as the "traditional" definition of navigable waters, the Corps exercised extremely limited jurisdiction over freshwater wetlands; only wetlands subject to such regular inundation by lacustrine or riverine flow so as to be considered part of a navigable water body were encompassed by the regulations. /2/ The Environmental Protection Agency /3/ and several federal courts interpreted the CWA as a congressional assertion of broader federal jurisdiction than would be encompassed by the traditional definition of "navigable waters." E.g., United States v. Holland, 373 F. Supp. 665, 670-676 (M.D. Fla. 1974). In NRDC v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975), the court held that in the CWA Congress "asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution. Accordingly, as used in the Water Act, the term ('navigable waters') is not limited to the traditional tests of navigability." The court ordered the Corps to publish new regulations "clearly recognizing the full regulatory mandate of the Water Act" (ibid.). In response to the order in NRDC v. Callaway, the Corps promulgated interim final regulations providing for a phased-in expansion of its Section 404 jurisdiction. 40 Fed. Reg. 31320 (1975); 33 C.F.R. 209.120(d)(2) and (e)(2) (1976). /4/ On July 19, 1977, the Corps published its final regulations, in which it revised the 1975 interim final regulations to clarify many of the definitional terms. 42 Fed. Reg. 37122. Pursuant to the final regulations published in 1977, the Corps' jurisdiction under Section 404 extends to all wetlands that are adjacent to (1) navigable waters as traditionally defined, (2) the tributaries of traditional navigable waters, and (3) interstate waters, whether or not navigable, and their tributaries. In addition, certain intrastate lakes or streams and isolated wetlands are subject to the Corps' jurisdiction if the use, degradation, or destruction of those areas could affect interstate commerce. See 33 C.F.R. 323.2(a). /5/ The regulations pertinent to this case provide as follows (33 C.F.R. 323.2(c) and (d)): (c) The term "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. (d) The term "adjacent" means bordering, contiguous, or neighboring. 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." 2. Riverside Bayview Homes, Inc., owns approximately 80 acres of property in Macomb County, Michigan, near Lake St. Clair. In November 1976, Riverside submitted an incomplete permit application to fill a portion of its property. Without completing the application and without waiting for the Corps' decision on its request for a permit, Riverside commenced fill activity. When Riverside refused to comply with a cease and desist order issued by the Corps, the United States initiated this action in the United States District Court for the Eastern District of Michigan, seeking to enjoin Riverside's unauthorized filling of wetlands. Riverside defended its actions by asserting that none of its property was subject to Clean Water Act jurisdiction. Following evidentiary hearings, the district court (then-District Judge Cornelia Kennedy) entered a preliminary injunction and later a permanent injunction prohibiting further filling activity on that portion of the property below the elevation of 575.5 feet until a Corps permit was obtained. The district court found that the area subject to the injunction was an "adjacent wetland" under the Corps' 1975 interim final regulations. /6/ This "wetlands" area is contiguous to Black Creek, a navigable water and tributary of Lake St. Clair. App., infra, 23a. It was undisputed that Riverside's property is predominantly vegetated with cattails, marsh grasses, and other wetland plants -- i.e., vegetation that is typically adapted for life in saturated soil conditions. Ibid. The district court found that, except for periodic surface water inundation from their overflow, the nearby water bodies (Black Creek, Clinton River, and Lake St. Clair) are not the cause of the saturated conditions that support the wetlands vegetation found on Riverside's property (id. at 25a). /7/ Instead, the district court found that the growth of the wetlands vegetation was principally caused by saturation associated with the type of soil found on the property -- the soil drains poorly, resulting in a high water table and water on or near the surface (id. at 24a-25a). The record reflects that Riverside's property is part of a larger undeveloped area that has exhibited the wetlands characteristics of moisture and vegetation for decades. See, e.g., 1/15/77 Tr. 89, 121-122, 126-127, 134, 158, 185; 1/17/77 Tr. 4-7, 9, 14-15, 29-33. The environmental functions of the area were described by experts as providing habitat for muskrats and birds and furnishing food resources for fish in Lake St. Clair. 1/15/ 77 Tr. 52-56, 131, 158, 173-174; 1/17/77 Tr. 47, 61. Having found that Riverside's property is "normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction" (33 C.F.R. 209.120(d)(2)(h) (1976), the district court separately considered the requirement of "periodic inundation" found in the 1975 interim final regulation (ibid.). The court had considerable difficulty with this aspect of the regulation (which has since been eliminated to avoid confusion), but ultimately concluded that "periodic" required "more than five" floods (App., infra, 31a) and found that the elevation of 574.9 feet had been surpassed by flooding on six "occurrences" in the last 80 years (id. at 30a). By adding half a foot to account for normal monthly fluctuation, the court arrived at its conclusion that Riverside's property below the elevation of 575.5 feet was a "wetland" subject to the Corps' jurisdiction (id. at 31a). Riverside appealed. On motion of the United States, the court of appeals remanded the case to the district court for consideration of the effect of the Corps' 1977 revised final regulations. District Judge Gilmore applied the new regulations to the facts found by Judge Kennedy and again concluded that the area was an adjacent wetland under the regulations. The court permanently enjoined Riverside from filling without a permit. App., infra, 42a-44a. Riverside appealed anew. 3. The court of appeals reversed, holding that Riverside's property was not a "wetland" under the 1977 regulations and was not subject to the Corps' jurisdiction under the Clean Water Act (App., infra, 1a-19a). The court held that the Corps' jurisdiction over "wetlands" is limited to areas in which aquatic vegetation is caused by frequent flooding from adjacent navigable waters. Applying this test, the court concluded that Riverside's property was not a "wetland" for jurisdictional purposes because inundation by the periodic flooding from adjacent water bodies had not been sufficiently frequent to be the cause of the aquatic vegetation found on the property. App., infra, 10a-12a. The court of appeals initially characterized its "frequent flooding" test as an interpretation of the Corps' revised definition of "wetlands," 33 C.F.R. 323.2(c). The court stated (App., infra, 10a): The new regulation makes clear that it is the present occurrence of inundation or flooding sufficient to support wetlands vegetation, not the mere presence of vegetation from some other cause, that determines whether a particular area is a wetland. Thus, as we understand it, the presence of inundation on the land "as it exists" now, sufficient to cause the growth of aquatic vegetation, is necessary to satisfy the wetlands definition. Neither inundation nor aquatic vegetation would be sufficient, standing alone, to bring a piece of land within the definition. Both must be present, and the latter must be caused by the former. Although the court quoted a portion of the pertinent regulation at several points in its opinion (App., infra, 10a, 11a, 15a), nowhere did it discuss the regulation's applicability to areas characterized by a prevalence of aquatic vegetation that is attributable to saturated soil conditions or ground water (33 C.F.R. 323.2(c)). Instead, the court held that the regulation requires "frequent flooding by waters flowing from 'navigable waters' as defined in the Act" (App., infra, 15a). The court reasoned that its narrow interpretation of the regulation was necessitated by what it perceived as both statutory and constitutional constraints on the Corps' jurisdiction. App., infra, 13a-16a. Because the CWA extends jurisdiction to "waters of the United States," the court questioned whether Congress intended to regulate "wetlands" at all. Id. at 13a (emphasis added). In addition to its view that Congress may not have intended to extend jurisdiction over the property at issue, the court reasoned that its narrow construction was required to avoid the potential problem of an unconstitutional taking (id. at 14a-15a). The government petitioned for rehearing en banc. The petition was denied, but the panel expanded its initial opinion to make clear its view that the Clean Water Act itself, in addition to the Corps' regulation, does not authorize federal jurisdiction over "wetlands" not caused by "frequent flooding" from adjacent navigable waters (App., infra, 20a-21a). The government's interpretation of the Clean Water Act, which is reflected in the Corps' regulations, was rejected as "over broad and inconsistent with the language of the Act in question" (id. at 21a). /8/ REASONS FOR GRANTING THE PETITION The decision below conflicts with the decisions of other circuits, is flatly inconsistent with the intent of Congress, and stands as a serious obstacle to the achievement of Congress's goals. Though the statutory phrase, "waters of the United States," may at first blush be deceiving, even a cursory review of the legislative history of the Clean Water Act, both as it was passed in 1972 and as amended in 1977, quickly and conclusively dispels any notion that Congress intended the Section 404 program to be limited by the traditional concepts of navigability resurrected by the court of appeals. The court's opinion is truly remarkable for its failure to address Congress's purposes in enacting the CWA, the Act's legislative history, or the several decisions of other circuits that have uniformly recognized the broad sweep of federal regulatory jurisdiction that Congress intended. Because the court of appeals' "frequent flooding" test will release millions of acres of wetlands from federal jurisdiction, it threatens adverse effects on water quality, wildlife, and fish resources resulting from the unregulated discharge of dredged or fill material into wetlands. Further, the court of appeals' decision undermines Clean Water Act enforcement by creating inconsistency on a national level and by establishing a jurisdictional test that neither landowners nor regulators can readily apply. Accordingly, review by this Court is warranted. 1. a. The Clean Water Act totally restructured the Nation's efforts to combat water pollution by adopting a strategy of controlling pollution at the point of its discharge. See generally EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 204-205 (1976). Congress recognized that restricting jurisdiction over water pollution to those relatively few waterways that support navigation would make it impossible to achieve the objectives of the Act. /9/ Thus, Congress intentionally deleted the word "navigable" from the Act's definition of "navigable waters" and rejected the Corps' traditional definition of navigable waters as ill-suited to the Act's water quality goals. The Conference Committee explained that (118 Cong. Rec. 33699 (1972) (emphasis added)): The Conferees fully intend that the term "navigable waters" be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes. (/10/) See also H.R. Rep. 92-911, 92d Cong., 2d Sess. 131 (1972) ("One term that the Committee was reluctant to define was the term 'navigable waters.' The reluctance was based on the fear that any interpretation would be read narrowly."). Congress thus clearly understood that concepts of navigability have nothing to do with combatting water pollution and that the Act's purposes require a scientific and functional interpretation of "waters of the United States" directly tied to water quality concerns. Whatever doubt may have existed on this score when the Act was first passed in 1972 was completely laid to rest by the 1977 amendments to the statute. The regulations promulgated by the Corps in response to NRDC v. Callaway, supra, aroused considerable congressional interest. Hearings on the subject of Section 404 jurisdiction were held in both the House and the Senate. /11/ An amendment to limit the geographic reach of the Section 404 program to traditional navigable waters and their adjacent wetlands was passed by the House, 123 Cong. Rec. 10434 (1977), defeated on the floor of the Senate, 123 Cong. Rec. 26728 (1977), and eliminated by the Conference Committee. Instead of restricting the geographic reach of Section 404, Congress amended the statute by exempting certain activities -- most notably, certain normal agricultural and silvicultural activities -- from the Act's permit requirements. See 33 U.S.C. 1344(f). /12/ The legislative history of the 1977 amendments clearly demonstrates Congress's recognition of the importance of wetlands and its intention to protect them under the Clean Water Act regulatory program. /13/ When Congress rejected the attempt to limit the reach of Section 404, it was well aware that the Corps' 1977 regulations asserted jurisdiction over all adjacent wetlands and some isolated wetlands. See, e.g., S. Rep. 95-370, 95th Cong., 1st Sess. 75 (1977); 123 Cong. Rec. 38967-38968 (1977) (remarks of Rep. Roberts); 123 Cong. Rec. 26718-26719 (1977) (remarks of Sen. Baker). Moreover, Congress specifically referred to "adjacent" "wetlands" as regulated waters in one of the amended Section 404 provisions, 33 U.S.C. 1344(g)(1). Congress's use of this regulatory term of art was an affirmative endorsement of the Corps' interpretation of the scope of its jurisdiction under Section 404. See Bob Jones University v. United States, No. 81-3 (May 24, 1983), slip op. 24-26; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381 (1969). The court of appeals' failure to consider the legislative history was improper. See Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 9-10 (1976). This is particularly so because the legislative history so strongly supports the validity of the Corps' interpretation of the statute as reflected in the 1977 regulations. This Court has repeatedly emphasized that reviewing courts are precluded from substituting their judgment for that of an agency, particularly with respect to technical matters or to a determination, including jurisdiction, that has been assigned primarily to the agency administering a statute. See, e.g., Chevron U.S.A. Inc. v. NRDC, No. 82-1005 (June 25, 1984), slip op. 5-6; E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 134-135 (1977); NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130-131 (1944). /14/ Had the court below followed these principles, it would have recognized that its self-created "frequent flooding" test bears no relationship to the water quality concerns that motivated Congress. The positive contributions of wetlands to the integrity of the aquatic system (see page 3, supra) are in no way dependent on frequent inundation from overflowing streams or lakes. /15/ b. The court of appeals seriously erred in concluding that its narrow interpretation of Section 404 jurisdiction was required by the Takings Clause of the Fifth Amendment. The fundamental flaw in the court's "taking" analysis was its erroneous assumption that the mere assertion of Section 404 jurisdiction amounts to the prohibition of "any development or change of such property." App., infra, 14a. In fact, however, the scope of Section 404 jurisdiction determines nothing more than whether the owner of a wetland must obtain a permit before discharging pollutants onto his property. Moreover, the statute and the implementing regulations expressly contemplate the granting of permits in appropriate circumstances, see 33 U.S.C. 1344(b); 33 C.F.R. Pts. 320, 323; 40 C.F.R. Pt. 230, and, even if a permit is denied, it does not follow that all economically viable uses of the property will be foreclosed. See Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897, 927 (5th Cir. 1983); United States v. Byrd, 609 F.2d 1204, 1211 (7th Cir. 1979); cf. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 295-296 (1981). /16/ A "taking" of private property cannot arise from the mere assertion of regulatory authority to require an application for a permit. Moreover, even if a permit is denied, and a taking has been established, no constitutional violation occurs unless just compensation is unavailable. See, e.g., Ruckelshaus v. Monsanto Co., No. 83-196 (June 26, 1984), slip op. 27-28; Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. at 297 n.40; Regional Rail Reorganization Act Cases, 419 U.S. 102, 127, 149 (1974); Hurley v. Kincaid, 285 U.S. 95, 104 (1932). Thus, the court of appeals clearly erred in invalidating significant portions of the Section 404 regulatory program in the absence of any conclusion (which would have found no support in the law in any event) that a landowner whose permit application is denied may not bring an inverse condemnation action. /17/ Finally, the taking analysis in any particular case is fundamentally factual. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. at 295; Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979). In a Section 404 case, for example, the court would have to determine, inter alia, whether denial of a permit deprived the landowner of all economically viable uses of his land. See, e.g., Deltona Corp. v. United States, 657 F.2d 1184, 1191-1193 (Ct. Cl. 1981), cert. denied, 455 U.S. 1017 (1982). The court of appeals conducted no such inquiry in this case, and thus its taking concerns were wholly speculative. /18/ 2. Although it acknowledged in a footnote devoid of any discussion (App., infra, 13a n.4) that the Fifth Circuit has recently upheld the Corps' definition of wetlands (see Avoyelles Sportsmen's League v. Marsh, supra), the court below seemingly approached the issue before it as though it were a question of first impression. In fact, it is not, and, what is more, every other circuit to address the matter (either in the context of Section 404 or of other sections of the CWA that apply to "waters of the United States") has concluded that Congress intended in the CWA to assert jurisdiction over the Nation's waters to the full extent of its power under the Commerce Clause and that the implementing regulations faithfully reflect that intent. See, e.g., Utah v. Marsh, 740 F.2d 799, 802-804 (10th Cir. 1984); Avoyelles Sportsmen's League v. Marsh, 715 F.2d at 914-916; United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); United States v. Byrd, 609 F.2d at 1209-1211; Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-756 (9th Cir. 1978); cf. Consolidation Coal Co. v. Costle, 604 F.2d 239, 243 (4th Cir. 1979). These courts have all recognized that Congress's purposes, described at pages 3, 12-13, supra, would be severely frustrated by an interpretation of "waters of the United States" that excluded areas, including wetlands, the destruction or pollution of which could threaten the purity of the more traditional waters to which the court below confined its concern. The result of this conflict in the circuits, unless resolved, will be inconsistent application of the nationwide Section 404 program, to the detriment of landowners and regulators alike. See pages 21-22, infra. /19/ 3. a. The court of appeals' decision threatens to cause significant environmental damage by allowing unregulated discharges into critical wetlands. In deciding whether to grant or deny a permit request, the Corps carefully reviews the environmental risks posed by dumping dredged or fill material into a wetland within its jurisdiction pursuant to criteria (40 C.F.R. Pt. 230) established by the EPA under Section 404(b) of the Act, 33 U.S.C. 1344(b). In the permit review process, the ecological importance of the particular wetland and the impacts of the proposed activity are evaluated, as well as the need for the project; permits may be granted, denied, or conditioned to reduce adverse consequences of the proposal. On average, two-thirds of all permits that are granted include conditions requiring best management practices or other measures to mitigate adverse effects on water resources, including wetlands. Wetlands 12. The permit review process, therefore, prevents the unnecessary pollution or destruction of wetlands important to the maintenance of water quality. See 33 U.S.C. 1344(b); 40 C.F.R. 230.10; 33 C.F.R. 320.4(a) and (b). The court of appeals' contraction of jurisdiction wholly pretermits this review process and will inevitably lead to water pollution and destruction of wetlands that would not otherwise occur. Indeed, the Corps has estimated that the court of appeals' "frequent flooding" test will release 2,128,000 acres of wetlands within the Sixth Circuit from the protection of the Clean Water Act; this acreage amounts to 48% of the wetlands previously thought to be within the Corps' jurisdiction within the Sixth Circuit. b. Effective implementation of the Section 404 regulatory program will be substantially undermined by the court of appeals' decision. Approximately 11,000 Section 404 permit applications are filed each year. These applications are processed by the Corps' 40 district offices throughout the country. Due to the magnitude of the program and its decentralized administration, effective implementation of Section 404 is highly dependent on voluntary compliance by landowners, which in turn requires a clear, easily-applied jurisdictional test. In contrast to the relative ease with which the jurisdictional test set forth in the Corps' regulations can be applied to particular parcels of land, however, the court of appeals' "frequent flooding" test is dependent upon highly technical, hydrologic data not readily accessible to landowners or regulators. As a practical matter, it will be difficult for landowners and regulators to isolate the inundation required by the court's decision from other factors affecting the wetness of an area. In effect, the court's decision requires a potential permit applicant to hire hydrologists to assess the existence, the frequency, and the direction of the flow of water. In these circumstances, public cooperation in the voluntary implementation of the program will inevitably be jeopardized. For the same reasons, the Corps' ability to enforce Section 404, by detecting violations and advising landowners of permit requirements, will be unduly complicated. /20/ Accordingly, clarification of the appropriate test for wetlands jurisdiction is required for the benefit of landowners and regulators alike. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General F. HENRY HABICHT II Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor General KATHRYN A. OBERLY Assistant to the Solicitor General ANNE S. ALMY ELLEN J. DURKEE Attorneys NOVEMBER 1984 /1/ In 1972, Congress passed extensive amendments to the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., and for the first time established a comprehensive federal program for the control and abatement of water pollution. The 1977 amendments to the FWPCA changed the popular name of the statute to the Clean Water Act. 33 U.S.C. 1251 note. For convenience, we shall refer to the statute by its new name throughout this petition. /2/ In freshwater bodies, only those wetlands below the ordinary high water mark were regulated, and jurisdiction in tidal areas limited to wetlands below the mean high water mark. 33 C.F.R. 209.260(j) and (k)(ii) (1974). /3/ See 40 C.F.R. 125.1 (1974); Section 404 of the Federal Water Pollution Control Act Amendments of 1972; Hearings Before the Senate Comm. on Public Works, 94th Cong., 2d Sess. 349-351 (1976) (letter from Russell E. Train, EPA Administrator, to Lt. Gen. W.C. Gribble, Jr., Chief, Corps of Engineers). /4/ The Phase 1 regulations, which were made immediately effective, included coastal waters and traditional inland navigable waters and their adjacent wetlands. "Adjacent wetlands" were to be determined by a prevalence of aquatic vegetation and periodic inundation; neither the ordinary high water mark nor the mean high tide line necessarily marked the shoreward limit of jurisdiction. 40 Fed. Reg. 31321, 31324, 31326 (1975). The Phase 2 regulations, which took effect on July 1, 1976, extended the Corps' jurisdiction to lakes and primary tributaries of Phase 1 waters, as well as wetlands adjacent to the lakes and primary tributaries. Ibid. The Phase 2 regulations, which took effect on July 1, 1977, extended the Corps' jurisdiction to all remaining areas encompassed by the regulations (e.g., perched or isolated wetlands and wetlands adjacent to tributaries other than primary tributaries). Ibid. /5/ The Corps' current definition of "waters of the United States" is a reworded, but substantively unchanged, version of the definition promulgated in 1977. The 1977 definition was amended in 1982 to make it identical to EPA's definition of the same phrase (40 C.F.R. 122.2). See 47 Fed. Reg. 31795 (1982). Thus, the two agencies define "waters of the United States" -- and hence the scope of federal regulatory jurisdiction -- in the same way for all Clean Water Act programs, regardless of which agency administers a particular program. For this reason, the impact of the decision below may extend beyond the Corps' Section 404 program to the extent that the opinion is read as an invalidation of the administrative definition of "waters of the United States." /6/ The relevant interim final regulation provided (33 C.F.R. 209.120(d)(2)(h) (1976): "'Freshwater wetlands' means those areas that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." In relevant part, the final regulation eliminated the words "periodically inundated" and substituted "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)). See page 6, supra. /7/ This finding was based on the district court's conclusion that there is no hydrologic connection between Riverside's property and the nearby water bodies (App., infra, 32a-37a). In context, however, it is clear that the finding refers to the absence of an underground connection by which water flows from those water bodies to the property. The court made no findings on the reverse question whether surface water drains from the property to the water bodies; the record suggests that it does because the property slopes toward Black Creek. See 1/21/77 Tr. 59, 86; DX 33. /8/ During the pendency of the appeal in this case, the Corps denied Riverside's application for an after-the-fact permit for a 10-acre area filled between May 26, 1976, and January 16, 1977. The after-the-fact permit request was denied based on the Corps' conclusion that "the existing fill has had an adverse impact on the wetland and its function as a flood-water storage area, water quality enhancement basin and fish and wildlife habitat." In addition to its request for after-the-fact approval of its earlier fill, Riverside sought permission to fill 30.6 more acres. The State of Michigan denied a state permit for this proposed fill. Accordingly, the Corps also refused to approve the proposed work because its regulations (see 33 C.F.R. 325.8(b)) provide that permits will not be granted by District Engineers in the absence of all necessary state and local approvals. Riverside did not seek judicial review of the Corps' permit denials, and the court of appeals did not address the subject, presumably because its ruling on the scope of the Corps' jurisdiction made it unnecessary for Riverside to obtain any Corps permits. /9/ The Senate report explained (S. Rep. 92-414, 92d Cong., 1st Sess. 77 (1971)): "Water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source." /10/ Regulation of wetlands in order to address environmental problems is undoubtedly within Congress's power under the Commerce Clause. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 282 (1981); United States v. Byrd, 609 F.2d 1204, 1209-1210 (7th Cir. 1979). /11/ Section 404 of the Federal Water Pollution Control Act Amendments of 1972: Hearings Before the Senate Comm. on Public Works, 94th Cong., 2d Sess. (1976); Development of New Regulations by the Corps of Engineers, Implementing Section 404 of the Federal Water Pollution Control Act Concerning Permits for Disposal of Dredge or Fill Material: Hearings Before the Subcomm. on Water Resources of the House Comm. on Public Works and Transportation, 94th Cong., 1st Sess. (1975). /12/ Congress also added several other provisions to Section 404, including provisions designed to streamline the permit process and to allow states to administer portions of the program. Those amendments, while not pertinent to the issue in this case, demonstrate that Congress thoroughly reexamined Section 404 when it passed the 1977 amendments. In these circumstances, Congress's decision not to alter the geographic reach of the section takes on added significance. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 381-382 (1982). /13/ For example, Senator Muskie, one of the primary sponsors of the CWA, explained (123 Cong. Rec. 26697 (1977)): There has been considerable discussion of section 404 of this act, much of which has been related to the suspicions and fears with respect to that section, and little of which has been related to substantive solutions to real problems while providing an adequate regulatory effort to assure some degree of wetlands protection. There is no question that the systematic destruction of the Nation's wetlands is causing serious, permanent ecological 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. The unregulated destruction of these areas is a matter which needs to be corrected and which implementation of Section 404 has attempted to achieve. See also 123 Cong. Rec. 38994-38996 (1977) (remarks of Reps. Ambro, Lehman, and Dingell); 123 Cong. Rec. 26701-26702, 26713, 26716-26717 (1977) (remarks of Sens. Stafford, Hart, and Chaffee). /14/ The fact that the Corps initially took a narrower view of its jurisdiction under the CWA is of no moment in this case. The Attorney General has determined that the "ultimate administrative authority to determine the reach of the 'navigable waters' for the purposes of Section 404" resides with EPA. 43 Op. Att'y Gen. No. 15, at 1 (Sept. 5, 1979). As previously noted (see pages 4-5 & n.3, supra), EPA has consistently supported a broad interpretation of the scope of Clean Water Act jurisdiction. /15/ Relatively little need be said respecting the court of appeals' interpretation of the Corps' regulation defining "wetlands" (33 C.F.R. 323.2(c)). The court's interpretation was plainly inconsistent with the regulatory language. By virtue of its singular focus on flooding, the court totally ignored the words "saturated" and "ground water" found in the "wetlands" definition. As the preamble to the Corps' regulations explains, "inundation or saturation (of a wetland) may be caused by either surface water, ground water, or a combination of both." 42 Fed. Reg. 37128 (1977). Nowhere in the regulations is there a suggestion that the water inundating or saturating an area must flow from a lake or stream. Furthermore, the court of appeals failed to heed the well-established principle that an agency's interpretation of its own regulations is entitled to deference by a reviewing court, particularly where, as here, technical expertise is involved. E.g., Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 556 (1980); Udall v. Tallman, 380 U.S. 1, 16 (1965). In short, the prevalence of wetland vegetation attributable to saturated soil conditions brings Riverside's property within the regulatory definition of wetlands. Because the property is adjacent to Black Creek, it falls within the regulatory definition of "waters of the United States," 33 C.F.R. 323.2(a) and (d). The court's concern (App., infra, 21a) that the Corps was attempting to regulate "low lying backyards" was entirely misplaced. Although the wetlands vegetation on Riverside's property is not attributable to inundation from the adjacent navigable waters, it is undisputed that the property serves precisely the type of critical ecological functions that Congress intended to protect. See page 8, supra. /16/ The sole authority for the court of appeals' "taking" analysis, Kaiser Aetna v. United States, 444 U.S. 164 (1979) (App., infra, 14a-15a), nowhere suggests that a narrow view of federal regulatory jurisdiction is required to avoid a taking "problem." In fact, Kaiser Aetna supports the opposite conclusion. There, this Court explicitly acknowledged that a privately-owned lagoon converted by its owners into a navigable water was subject to federal regulatory jurisdiction. 444 U.S. at 174, 179. It was only the government's attempt to require the owners to provide the public with free access to the lagoon that amounted to a "taking" for which compensation would be due because the access requirement would have deprived the owners of "the 'right to exclude,' so universally held to be a fundamental element of the property right" (id. at 179-180 (footnote omitted)). Subsequently, the Court refused to apply Kaiser Aetna to a land use regulation that, like the permit requirements of the Clean Water Act, did not extinguish any "fundamental attribute of ownership." Agins v. City of Tiburon, 447 U.S. 255, 262 (1980). /17/ Of course, a landowner may also obtain judicial review, pursuant to the Administrative Procedure Act, 5 U.S.C. 702, of a Corps decision to deny a permit application. See, e.g. Buttrey v. United States, 690 F.2d 1170, 1183 (5th Cir. 1982), cert. denied, No. 82-1303 (May 16, 1983); Deltona Corp. v. Alexander, 682 F.2d 888 (11th Cir. 1982). /18/ As noted (see note 8, supra), Riverside applied for and was denied a permit while this case was pending in the court of appeals. But the court of appeals did not decide whether the permit denial was proper or whether it effected a taking in the circumstances of this case, nor could the court have considered these questions inasmuch as Riverside never challenged the denial of the permit. /19/ In addition, the problem is compounded by the fact that the regulations at issue were initially promulgated in response to a court order. See page 5, supra. Even if we thought that the decision below were correct, which we do not, it seems doubtful that the Corps could amend its regulations to conform to the court of appeals' ruling without risking additional litigation challenging any new regulations as inconsistent with the mandate of NRDC v. Callaway, supra. Thus, the conflict in the circuits cannot be resolved administratively. /20/ The court of appeals' decision creates other cumbersome management problems for the Corps. The conflict between the court's decision and the Corps' regulations, fully applicable in other circuits, will require the Corps to administer a nationwide program using inconsistent standards. Because the Corps' district offices that manage the permit program are divided by watershed, eight such offices overlap a Sixth Circuit state and a state in another circuit. Consequently, regulators in those eight offices will be forced to apply both the Corps' regulations and the court of appeals' "frequent flooding" test. APPENDIX