ELR Citation: ELR 20086
No(s). 84-701 (U.S. Dec 4, 1985)

The Court holds that the Army Corps of Engineers' regulations under Federal Water Pollution Control Act (FWPCA) §404 reasonably include wetlands adjacent to other waters within the Corps' permit jurisdiction. The Court first rejects the court of appeals, reasoning that the Corps' jurisdiction must be narrowly construed to avoid an unconstitutional taking of property. The mere assertion of regulatory jurisdiction does not constitute a regulatory taking; even denial of a permit might not work a taking. And even if a denial could take property, the Tucker Act allows relief for a regulatory taking, negating the court of appeals, argument that a narrow construction of the regulation was necessary to avoid constitutional problems. The Court holds that under, the plain language and history of the Corps' regulation, property does not need to be periodically flooded to be a wetland. Given that fact, and the findings of the district court, which were not clearly erroneous, the Corps' regulations cover the property at issue. Finally, the Court rules that the Corps' regulations represent a reasonable construction of the FWPCA given the statute's language, policies, and legislative history. The Act refers simply to "waters" without explaining where open water ends and dry land begins. The underlying policies of the Act support a broad definition of waters as does the legislative history, which repudiates classical definitions of navigability as jurisdictional limits. The Corps' conclusion that adjacent wetlands are inseparably bound up with waters of the United States is reasonable. Congress' rejection of provisions in the 1977 amendments to the FWPCA that would have restricted the Corps' jurisdiction adds further support to the Corps' position.

[Lower court opinions in the case appear at 7 ELR 20445; 14 ELR 20365, 20617. Analyses of the lower court opinions appear at 14 ELR 10333, 10366.]

Counsel for Petitioner
Rex E. Lee, Solicitor General; Louis F. Claiborne, Kathryn A. Oberly
Office of the Solicitor General
Department of Justice, Washington DC 20530
(202) 633-2201

F. Henry Habicht II, Ass't Attorney General; Anne S. Almy, Ellen J. Durkee
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2217

Counsel for Respondent
Edgar B. Washburn, John P. Yeager
Washburn & Kemp
144 Second St., San Francisco CA 94188
(415) 543-8131

Richard K. Gienapp, Thomas D. McElgunn, Alexander V. Lyzohub
38825 Ryan Rd., Sterling Heights MI 48077
(313) 326-3720