Title: Navigation the Wetlands Jurisdiction of the Army Corps of Engineers
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Title: Navigation the Wetlands Jurisdiction of the Army Corps of Engineers
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Abstract: Navigation the Wetlands Jurisdiction of the Army Corps of Engineers, Christopher H. Meyer
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 45
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Navigating the Wetlands
Jurisdiction of the Army
Corps of Engineers


y
Christopher H. Meyer
Last December, the Supreme Court handed down Its
decision in United States v. Riverside Bayview Homes,
Inc., 106 S. Ct. 455 (1985) upholding the Army Corps of
Engineers' ("Corps") assertion of jurisdiction to regulate
the discharge of dredged and fill material into certain wet-
lands owned by a Michigan home developer. Conser-
vationists hailed the ruling as a significant victory in their
battle to stem the tide of wetlands destruction.1 Despite
the jubilation, the victory was far from complete, as the
Court's decision was limited to those wetlands "adjacent"
to navigable waterways-not the full range of isolated
sinks, bogs, and potholes which dot the landscape.2 This
article will explore the convoluted historical development of
the Corps' wetlands jurisdiction and offer some thoughts
on its constitutional limits.
The Rivers and Harbors Act: Roots of the
Corps' Current Authority
The Corps' regulatory involvement with the disposal of
dredged and fill material began with the Rivers and Harbors
Appropriation Act of 1899, 33 U.S.C. 401-403 (1982)
("RHA"), the first act of Congress to confer upon a federal
agency comprehensive regulatory authority over navigable
watersrs Section 10 of the Act, 33 U.S.C. 403 (1982),
.rbids private parties from engaging in any excavation,
construction, alteration, modification of or within "navigable
waters" without a permit from the Corps. While the Act was
originally aimed at physical obstructions to navigation, it has
been interpreted broadly by federal courts since the 1960s
to prohibit virtually all forms of water pollution discharges.
United States v. Republic Steel Corp., 362 U.S. 482
(1959); United States v. Standard Oil Co., 384 U.S. 224
(1966); Kalur v. Resor, 335 F. Supp. 1 (D.D.C. 1971) (each
dealing with section 13 of the RHA which prohibits the
discharge of "refuse" into navigable waters and their
tributaries).
Not until 1968, however, in response to growing public
concern over environmental quality, did the Corps pro-
mulgate rules interpreting section 10 of the Act to
authorize consideration of ecological as well as navigational
factors. 33 Fed Reg. 18,686-88 (Dec. 18, 1968). These
new regulations provided for a "public interest review" by
the Corps in the course of administering its RHA regulatory
program. The regulations were upheld in their first judicial
test. Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert.
denied, 401 U.S. 910 (1971) (upholding the Corps
decision to deny a land filling permit solely on the basis of
fish and wildlife concerns). Despite this gradual broadening
of environmental considerations, the geographical scope
"-f the Act has remained transfixed upon the traditional
Definition of "navigable waters."3 It took congressional
action in 1972 to break the Corps' authority loose of its
historical fetters.


Enactment of Clean Water Act:
Congress Stretches its Constitutional Muscle
The narrow view of the Corps' authority was abandoned
by Congress in 1972 when it enacted the Clean Water Act
("CWA"), 33 U.S.C. 1251-1376 (1982) (originally termed
the Federal Water Pollution Control Act). Unfortunately,
the arcane terminology of navigability was retained, and
continues to muddle the regulatory process today.
Section 301 of the Act, 33 U.S.C. 1311 (1982),
prohibits the discharge of pollutants into "navigable
waters" unless the discharge complies with section 402 or
section 404, 33 U.S.C. 1342, 1344. Section 402 deals
with so-called point sources of pollution under the National
Pollution Discharge Elimination System ("NPDES"), and is
administered by the Environmental Protection Agency
("EPA"). Section 404 created a separate permit system to
be administered by the Corps4 for the disposal of dredged
or fill material.
The 1974 Regulations
While the CWA authorized the Corps only to regulate
discharges into "navigable waters," it provided an ex-
pansive, new definition of the term reaching far beyond the
meaning of the same words employed in the RHA.5 The
CWA defines "navigable water" as "the waters of the
United States, including the territorial seas." 33 U.S.C.
1362(7) (1982). As the legislative history makes clear,
Congress intended by this language to encompass the
broadest possible constitutional interpretation. See S.
Rep. No. 1236, 92nd Cong., 2d Sess. 99, reprinted in
1972 U.S. Code Cong. & Ad. News 3822.
Nevertheless, the Corps issued regulations (imple-
menting both section 10 and section 404) which limited its
jurisdiction under each program to navigable waters as the
term had been previously defined under section 10. 39
Fed. Reg. 12,115-37 at 12,119 (April 3, 1974). Curiously,
the Corps did include in these regulations a limited
definition bf wetlands, but only for purposes of stating a
"policy" of protecting wetlands, and not for purposes of
expanding the Corps' jurisdiction so that it could protect
them. 39 Fed. Reg. 12,115 (1974) (codified at 33 C.F.R.
209.120(g)(3) (1975)).
This action was challenged by the Natural Resources

The Natural Resources Law Center

The Natural Resources Law Center was estab-
lished at the University of Colorado School of Law in
the fall of 1981. Building on the strong academic base
in natural resources already existing in the Law School
and the University, the Center's purpose is to facilitate
research, publication, and education related to natural
resources law.
For information about the Natural Resources Law
Center and its programs, contact:
Lawrence J. MacDonnell, Director


Katherine Taylor, Executive Assistant
Diane Fenick, Secretary
Fleming Law Building
Boulder, Colorado 80309-0401
Telephone: (303) 492-1286

3


i P-----X-~I~IIIIC-





Defense Council and the National' ;lile Federation in
Natural Resources Defense Council v. Callaway, 392 F.
Supp. 685, 686 (D.D.C. 1975). In a terse, one-page
opinion the court invalidated the Corps' restrictive reading
of the Act, declaring. "Congress by defining the term
(UNavigable waters' in (the CWA) to mean 'the waters of the
.niled Stales, including the territorial seas,' 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 is not limited to the traditional tests of navigability."

The 1975 Regulations
In response to Callaway, the agency issued new interim
final regulations which, for the first time, expanded the
definition of navigable waters to include wetlands. These
regulations contained, however, two significant limitations:
First, the wetlands had to be created by periodic
inundation, not saturation (in addition to their supporting
vegetation which requires saturated soil conditions).
Second, they had to be contiguous or adjacent to other
navigable waters. 40 Fed. Reg. 31,320-44 at 31,324 (July
25, 1975).
The 1975 regulations received considerable criticism
from both sides, and congressional attention was focused
on the Corps' new definition of navigability. However,
legislative efforts to cut back on the Corps section 404
jurisdiction went down to defeat when a joint House-
Senate Conference Committee was unable to resolve
differences between bills which had passed both houses.
See 122 Cong. Rec. 16,569 and 28,771 (1976).

he 1977(Current) Regulations
In 1977 the Corps again revised and expanded6 its
jurisdictional rules. 42 Fed. Reg. 37,122-164 (1977)
(codified at 33 C.F.R. 320-330.8 (1985)). Notably, the
new wetland definition (1) lacked the earlier regulation's
"periodic inundation" requirement (so long as wetland-
type vegetation was present, it made no difference
whether the water came from inundation or saturation) and
(2) eliminated the requirement that the wetlands be
adjacent to navigable water.7 These regulations also
adopted a new nomenclature, referring to the Corps
jurisdiction no longer in terms of "navigable waters" but
rather as "waters of the United States." 33 C.F.R.
323.2(a) (1985) (this terminology derives from the CWA
itself, 33 U.S.C. 1362(7) (1982)). In the last days of that
year Congress again amended the CWA, but left the Corps
new section 404 program intact--despite concerted
lobbying efforts to eliminate the Corps' new found
jurisdiction over non-navigable wetlands.

The Riverside Bayview Challenge
One aspect of these new regulations was put to the test
in United States v. Riverside Bayview Homes, Inc., 106 S.
Ct. 455 (1985). The case arose in a suburb of Detroit
where the respondent owned eighty acres of un-
I(eveloped land located about a mile west of Lake St. Clair,
navigable waterway. The area had been platted, and
storm sewers and fire hydrants had been placed there
seventy years ago, but no further action was taken toward


development until .verside Bayview began to fill in
wetlands without a permit in 1976.
The respondent challenged the Corps' assertion of
regulatory authority over wetlands which were not physi-
cally inundated by a navigable waterway, but were merely
located adjacent to a navigable waterway and saturated by
ground water.8
The Court addressed the argument at four levels: (1) are
these wetlands included within the Corps' regulations? (2)
If so, do the regulations fall within the scope of the Corps'
authority? i.e., Did Congress intend to reach these
wetlands? (3) If so, did Congress have the power to reach
these wetlands under the commerce clause? (4) If so, does
this exercise of power constitute a taking for which
compensation must be paid?
In a unanimous decision the Supreme Court ruled on
each point: (1) Yes, the adjacent, saturated wetlands fall
within the Corps' regulations. (2) Yes, the Congress in-
tended to reach these wetlands. (3) The Court did not
explicitly address the power of the Congress to reach
these wetlands, apparently assuming that the existence of
such power is beyond question. (4) It is not necessary to
reach the taking question (or to construe the law narrowly
to avoid reaching it) because the question of com-
pensation may always be raised in a subsequent action
against the govemment.
On the first point, the Court described the question of
the Corps' regulations as "an easy one," S. Ct. at 460, and
chastised the appeals court for "fashioning its own
requirement of frequent flooding,"' S. Ct. at 461, where
the regulations plainly defined wetlands to include those
lands subject either to inundation or saturation by ground
water, 33 C.F.R. 323.2(c) (1982).
The Court provided a more detailed analysis on the
second point, ultimately concluding that the Corps "acted
reasonably in interpreting the Act," S. Ct. at 465, to include
the wetlands as Congress intended a more wholistic and
ecologically based regulatory program than one confined
to arcane principles of navigability.
The curious, and unfortunate, thing is what the Court did
not decide. Fourteen times the Court mentioned the term
"adjacent" in connection with wetlands, and in note 8 at S.
Ct. 462, the Court states explicitly that it is not passing on
the authority of the Corps to regulate wetlands which are
not "adjacent to bodies of open water." Instead, the Court
focused its opinion solely on one of three categories of
wetlands which are included in the Corps 1977
regulations: 33 C.F.R. 323.2(a)(7) ("Wetlands adjacent to
[other] waters"), but not 33 C.F.R. 323.2(a)(2) ("All...
interstate wetlands") and 323.2(a)(3) (intrastate...
wetlands...which could affect interstate or foreign com-
merce").
Finally, the takings claim, like the claim that the wetlands
fell without the scope of the Act, was disposed of quickly
by the Court. The decision by the appeals court, 729 F.2d
391 (6th Cir. 1984), rested largely on the perceived need
to steer clear of a potential taking without just compen-
sation. The Supreme Court dismissed this concern
pointing out that (1) even if the permit were denied there
may be other viable uses available to the owner, S. Ct. at
459, and (2) even if the permit is denied, and no alternative






use is available, and taking has occL J, the owner may
always bring a separate action for compensation under the
Tucker Act, 28 U.S.C. 1491 (1982), S. Ct. at 460. While
the Court left the takings question open, its strong
Jgnguage on the issue ("spurious constitutional over-
fies," S. Ct. at 460) and its recitation of a string of cases
holdingg federal regulation against fifth amendment
challenge, hardly gives encouragement to those who hold
out the hope that regulation of wetlands may be
compensable.9
The Constitutional Limits of
Wetlands Regulation
The tortured course wetlands jurisdiction has taken is all
the more remarkable in that it is completely unnecessary.
While the Corps has edged along what it perceived as a
constitutional tightrope, it has in fact been treading solid
constitutional ground. Only poor vision and an apparent
failure to read the case law made the ground seem so far
away.
The law is well settled that commerce clause authority
extends not only to "the use of channels of
interstate or foreign commerce" [such as navigable
waters] and to "protection of the instrumentalities
of interstate commerce... or persons or things in
commerce," but also to "activities affecting
commerce."
Hodel v. Virginia Surface Mining and Reclamation Ass'n,
452 U.S. 264, 276-77 (1981) (quoting Perez v. United
,.ates, 402 U.S. 146, 150 (1971)).10 Congress' utilization
the "navigable waters" language reflects no more than
an anachronistic throwback to that era, long past,
characterized by a restrictive view of the commerce power.
As the Court said in Wickard, "[Q]uestions of the power of
Congress are not to be decided by reference to any
formula which would give controlling force to nomen-
clature." Wickard at 120. Yet, such devotion to nomen-
clature continues, I believe, as a consequence both of
habit and of overabundant caution. This cautious habit is
shared by the Corps, which continues to construe its
jurisdiction narrowly (despite its broad 1977 regulations),
the Congress which continues to employ terms of art laden
with unnecessary constitutional baggage while
renouncing the constitutional limitations in its legislative
history, and the Supreme Court which has trod ever so
delicately around easy constitutional questions. The
unfortunate result is the needless confusion over isolated
wetlands left unresolved in the Riverside Bayviewcase.
Given that Congress may legislate beyond the reach of
navigable-in-fact waters, and has chosen to do so, the only
question is what are the limits of that jurisdiction? The test
is straightforward: Congress' determination that discharge
of dredged or fill material into the nation's wetlands
substantially affects interstate commerce must be upheld if
there is "any rational basis for such a finding." Surface
4, jning at 276; Heart of Atlanta Motel, Inc. v. United States,
f 9 U.S. 241 258 (1964). Given the critical role played by
wetlands commerce as well as health and recreation,1'
there cannot be any serious question that such a rational
basis exists.


In short, the Sui .ne Court ducked an issue which II
easily could have resolved. As the court found in Natural
Resources Defense Council v. Callaway, 392 F. Supp.
685, 686 (D.D.C. 1975), Congress exercised its full
constitutional power in enacting the CWA. That power
reaches wetlands everywhere in the nation. But for now,
we must be content with a ruling that wetlands adjacent to
navigable water bodies fall within the scope of the Corps'
authority regardless of what made them wet.
The broader issue, however, may not lie dormant for
long. The question sidestepped by the Supreme Court is
now before a federal district court in Galveston, Texas,
where the National Wildlife Federation has challenged the
Corps' failure to exercise its jurisdiction over a wetland
known only as "Pond 12" as well as "a policy or pattern or
practice" of ignoring its section 404 responsibilities on
isolated wetlands throughout the United States. Amended
Complaint at 7 (March 11, 1986). In defense of its refusal to
exercise more broadly its section 404 powers, the Corps
has taken, in effect, the curious position that its own
regulations are unconstitutional. Because the wetlands at
issue are not adjacent to navigable waterways, the court,
assuming it reaches the merits, may be expected at last to
address the constitutionality of the sweeping powers
vested in the Corps by the Congress in 1972.

Endnotes
Mr. Meyer serves as counsel to the National Wildlife
Federation's Rocky Mountain Natural Resources Clinic in
Boulder, Colorado, and is an associate professor adjoint at
the University of Colorado Law School. This article is based
on a presentation given by Mr. Meyer at the Section 404
seminar cosponsored by the Natural Resources Law
Center in March, 1986.
1. Until recently, wetlands have been regarded as having
little value (except for their potential for conversion to fast
lands). As a result of this incomplete understanding of their true
worth, and of federal and state policies promoting their
development, over half the nation's wetlands have been lost.
Want, Federal Wetlands Law: The Case and the Problems, 8
Harv. Envtl. L. Rev. 1, 3 (1984). Wetland destruction continues
today at a rate of 450,000 acres annually. U.S. Fish and Wildlife
Service, Wetlands of the United States: Current Status and
Recent Trends 31 (1984). It is recognized now, however, that


Rocky Mountain Natonal Park. eting for the upcoming national parks
conference


56i







wetlands serve a variety of critical en,,.jnmental, commercial,
safety, and health needs. For instance, wetlands serve to
maintain ground water supplies and prevent flooding by retaining
rainwater, to purify water by absorbing and recycling nutrients
. and other pollutants, and to provide essential nesting, wintering,
nd resting habitat for countless species of migratory waterfowl.
Council on Environmental Quality, Our Nation's Wetlands, An
Interagency Task Force Report 2, 23, 27 (1978) (GPO No. 041-
01100045-9) ('CEO"). Wetlands even have been employed to
treat sewage.
2. The question of the broader scope of Corps' authority is
now before a federal district court in Texas, National Wildlife
Federation v. Laubscher, Civil Action No. G-86-37 (S.D. Tex.
filed Jan. 15,1986).
3. In 1972 the Corps published a definition of the term
"navigable waters of the United States" for purposes of defining
the scope of the RHA. 37 Fed. Reg. 18,289-92 at 18,290 (Sept.
9, 1972). The regulation simply codified the evolution of federal
case law up to that point. Navigable waters were defined as: (1)
all waters presently used to transport interstate or foreign
commerce (derived from The Daniel Ball, 77 U.S. (10 Wall.) 557
(1870); (2) all waters used in the past to transport interstate or
foreign commerce (derived from Economy Light and Power Co. v.
United States, 256 U.S. 113 (1921) (in other words, once
navigable, forever navigable); or (3) all waters susceptible to use
in their ordinary condition or by reasonable improvement to
transport interstate or foreign commerce (derived from United
States v. Appalachian Electric Power Co., 311 U.S. 377 (1940);
as well as waters subject to the ebb and flow of the tide. These
regulations remain essentially in tact in 33 C.F.R. 323.2(a),
329.4 (1985) (see 33 C.F.R. 323.2(b) (1985) for a definition of
the same term under the Clean Water Act).
4. While the Corps has the primary regulatory function
Jnder section 404, the EPA has ultimate authority in permit
decisions by virtue of its power to veto permits issued by the
Corps. Section 404(c), 33 U.S.C. 1344(c) (1982). Moreover,
EPA holds the ultimate responsibility for determining the scope
of "navigable waters" for the purposes of section 404. 43 Op.
Att'y Gen. No. 15 (Sept. 5, 1979); Avoyelles Sportsmen's
League, Inc. v. Marsh, 715 F.2d 897, 903 n.12. The Corps and
EPA share authority to bring enforcement actions to halt the
unpermitted discharge of dredged or fill material into wetlands.
Sections 309, 404(s)(1), 33 U.S.C. 1311(a), 1319(b) and (c),
1344(s)(1) (1982). Finally, the Corps' authority may be
transferred to states that have devised federally approved
permit programs. Section 404(g), 33 U.S.C. 1344(g) (1982).
5. Although the scope of jurisdiction under section 404 of
the CWA is generally thought to include (and surpass) that of


section 10 of the Ri ... there are three narrow exceptions to that
rule in which jurisdiction may be found under section 10 but not
under section 404 (1) an exemption from section 404 coverage
applies (e.g, certain agricultural activities are exempt), (2)
activities affecting a waterway but not involving the disposal of
dredge or fill material are involved, and (3) the action predates
the CWA.
6. While the 1977 regulations generally expanded the
Corps' jurisdiction, in two very limited respects, the regulations
reflected a tightening of jurisdiction: (1) the new wording made
clear that the wetland must be a wetland at the time of the
proposed action (not just in the past), and (2) the new wording
also made clear that the "abnormal" presence of wetland
vegetation is not sufficient to convert the area into a wetland.
7. The 1977 regulations do contain a provision on adjacent
wetlands, 33 C.F.R. 323.2(a)(7) (1985), but this appears to be
redundant and completely absorbed by two broader
classifications of qualifying wetlands for which there is no
adjacency requirement, 33 C.F.R. 323.2(a) (2) and (3) (1985).
8. The Court readily disposed of respondent's threshold
argument that no wetlands can fall within the definition of waters
of the United States, describing it as a "simplistic response." 106
S. Ct. at 462.
9. The compensation question recently was taken up but
hardly elucidated in an inscrutable opinion by the Federal Circuit
in Florida Rock Industries, Inc. v. United States, Nos. 85-2588,
85- 2609, slip op. (Fed. Cir. May 14,1986).
10. The commerce clause has been read this broadly for
over forty years. See Wickard v. Filburn, 317 U.S. 111 (1942)
(federal crop limitations extending to wheat consumed on farm
premises upheld as proper exercise of the commerce power
where the only effect on interstate commerce was that the wheat
consumed may have displaced interstate wheat which the farmer
otherwise would have had to purchase); Katzenbach v. McClung,
379 U.S. 294 (1964) (Civil Rights Act held proper exercise of
commerce power where the only effect on interstate commerce
was purchase of meat by Ollie's Barbeque and the likelihood that
black people would travel and eat out more often in the absence
of discrimination).
11. Wetlands have been estimated to provide $140 billion
worth of flood protection and water purification services. Ninety-
eight percent of Maine's $50 million-per-year fish harvest "was
made up of species that depend upon wetlands for some part of
their life cycle." The prairie potholes of the Northern Great Plains
produce over one-half of the newborn wild duck population every
year. U.S. Fish and Wildlife Service, Wetlands of the United
States: Current Status and Recent Trends 42 (1984); remarks of
Sen. Chafee during the 1977 floor debate.


- I


Steve LaSatz, Vice President for Law at Rocky Mountain Energy presents a $10,000 check
for the Natural Resources Law Center to Associate Dean Clifford Calhoun and Larry
MacDonnell
6




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