United States v. Riverside Bayview Homes: A Questionable Interpretation of § 404

Jerry Jackson and Sarah V. Armitage

Mr. Jackson is an attorney with the National Wildlife Federation in Washington, D.C. and Ms. Armitage is a third-year student at the Northwestern School of Law, Lewis and Clark College.

[14 ELR 10366]

The Sixth Circuit has recently issued a decision in United States v. Riverside Bayview Homes, Inc. (Riverside Bayview) which suggests that the Corps of Engineers' § 404 jurisdiction may be quite limited.¹ Last month's Comment on Riverside Bayview² argues that the apparently far-reaching effects of the decision can be dismissed as dictum and can be overcome by regulatory changes. In this Dialogue we take a somewhat different tack by presenting arguments to refute any persuasive authority the decision may have in future cases. Based on the case law and legislative history of the Clean Water Act, Riverside Bayview is an anomalous effort to return to artificial jurisdictional limitations on federal authority over the Nation's waters.

Background of the Army Corps of Engineers' Wetlands Definition

When § 404 of the Clean Water Act³ was passed in 1972, the Corps of Engineers initially construed its jurisdictional limits to be the same as under the Rivers and Harbors Act: waters subject to tidal influence up to the mean high water mark and waters navigable in fact.⁴ However, the Corps' approach met with disagreement from federal courts, the Environmental Protection Agency (EPA), the Department of Justice, and a number of environmental organizations.⁵ All of these institutions considered the Corps' interpretation too narrow in view of Congress' express intent for the Clean Water Act to apply to "all waters of the United States."⁶

The issue came to a head in Natural Resources Defense Council, Inc. (NRDC) v. Callaway⁷ where the court rejected the Corps' construction of § 404's geographical limit and ordered new regulations consistent with Congress' intent to reach all waters to the maximum extent permissible under the Commerce Clause.⁸

As a result of NRDC v. Callaway, the Corps published regulations in 1975 including wetlands as "waters of the United States."⁹ The regulations included a definition for "coastal" wetlands and also one for "freshwater" wetlands.¹⁰ The latter definition read:

"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.¹¹

In 1977 the Corps revised the wetlands definition.¹² The distinction between coastal and freshwater wetlands was dropped and wetlands were defined as:

Those areas that are inundated or saturated by surface or groundwater 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.¹³

The Corps stated that the reference to "periodic inundation" in the 1975 freshwater wetlands definition was eliminated in part because the water or saturation necessary to support aquatic vegetation may result from surface water, groundwater, or both.¹⁴ The Corps also stressed that the definition was intended to identify wetlands as they presently exist regardless of their status in the past as uplands or wetlands.¹⁵ The 1977 wetlands definition remains in force today.

[14 ELR 10367]

The Riverside Bayview Decision

In 1976 the owner of an 80-acre parcel of land located near Detroit and Lake St. Clair, began discharging fill material onto the site.¹⁶ The owner had applied for but received no § 404 permit.¹⁷ The Army Corps of Engineers issued a cease and desist order,¹⁸ and in early 1977 the United States initiated an enforcement action under the Clean Water Act.¹⁹ The government sought a preliminary injunction against unpermitted fills in wetlands on the site.²⁰

The government's testimony at trial established that a portion of the site constituted a wetland.²¹ According to the government's experts, the land was characterized by a predominance of vegetation types (such as cattails, sedge, reeds, marsh grasses) adapted to waterlogged or highly saturated soils.²² In addition, there was a complete absence of upland plants (i.e. those unable to tolerate wet soils) on the site.²³ According to these experts, the area has been a wetland for at least 20 years, is part of a larger wetland area on the western shore of Lake St. Clair, and would be inundated but for a system of dikes and drains in the vicinity.²⁴ The area is also inhabited by muskrat and long-billed marsh wrens, both species which depend on wetlands environment for habitat.²⁵

Riverside Bayview's tract is characterized by a type of soil which lends itself to saturation, and by a water table within inches of the surface.²⁶ The tract has been flooded six times in the past 80 years by waters from Lake St. Clair and Black Creek.²⁷

Based on the Corps' 1975 wetlands definition the court found that the portion of the tract below a certain contour line constituted a wetland because it was "characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction," was contiguous to a navigable water, and, in the court's view, was periodically inundated.²⁸ The court granted preliminary and permanent injunctive relief.²⁹

On the landowner's first appeal, the Sixth Circuit remanded the case for further proceedings in district court in light of the Corps' 1977 wetlands definition.³⁰ In this subsequent proceeding, a different district judge decided that since the 1977 language was broader than the 1975 language, the area remained a wetland under the 1977 regulation.³¹

After the first remand, the Sixth Circuit reached the merits of the case in March 1984. The court reversed the district court on the ground that the site is not a wetland subject to § 404.³²

The court seemed to be at pains to characterize the facts of the case in a way that would support the conclusion that the area is not a wetland. For example, the court made much of the fact that the area was "platted" for subdivision "with the fire hydrants and storm sewers already installed."³³ Of course, platting consists of drawing lines on a map, an activity irrelevant to an area's biological status as a wetland. Moreover, the hydrants and sewers were installed in 1916³⁴ and, as one witness testified, would be completely obsolete once the proposed fill was completed because the openings would then be several feet underground.³⁵ In fact, the proposed fill was required by local ordinance, apparently to protect residences from flooding when Lake St. Clair rises, as it has in the past.³⁶ The court also referred to past farming in the area but one witness testified in 1977 that Riverside Bayview's tract had been a wetland for at least the previous 20 years.³⁷

Nonetheless, the Sixth Circuit decided the tract was not a wetland within the Corps' 1977 definition. The Sixth Circuit apparently decided that, under the 1977 definition, the presence of wetland vegetation alone was insufficient for the tract to fall within § 404.³⁸ Instead the vegetation must be caused by "inundation."³⁹ Moreover, the inundation must be "frequent" and must come "from adjacent streams and seas subject to the jurisdiction of the Corps" or "from 'navigable waters' as defined in the Clean Water Act."⁴⁰ The court did not explain any of the terms it used in these phrases.

The Sixth Circuit opinion stated that this result stemmed from the court's interpretation of the Corps' wetlands definition.⁴¹ However, the court also relied upon the Just Compensation Clause which presumably [14 ELR 10368] limited Congress' authority to regulate activities in wetlands.⁴² The Sixth Circuit decided that a broader definition of wetlands might lead to a regulatory taking and that this could be avoided by restricting the Corps' definition.⁴³

In the Sixth Circuit's words, the opinion construes

the regulation containing the amended wetlands definition as limited to lands such as swamps, marshes, and bogs that are so frequently flooded by waters from adjacent streams and seas subject to the jurisdiction of the Corps that it is not unreasonable to classify them as lands which frequently underlie the "waters of the United States." …. The definition thus covers marshes, swamps, and bogs directly created by such waters, but not inland lowlying areas such as the one in question here that sometimes become saturated with water.⁴⁴

Accordingly, the Sixth Circuit reversed. The United States' petition for rehearing and suggestion for rehearing en banc was subsequently denied. In its order denying rehearing the original panel addressed none of the arguments raised by the United States' brief in support of rehearing, and by four conservation organizations as amici curiae in support of the government's petitions.⁴⁵ However, the panel stated that under the United States' interpretation of the Corps' 1977 definition, "low lying backyards miles from a navigable waterway would become wetlands."⁴⁶

The United States has recently decided to petition the Supreme Court for a writ of certiorari.

Jurisdictional Scope of Section 404

In passing § 404, Congress placed no discernible geographic limit on the waters covered. Indeed, by virtue of the definitions in the Clean Water Act, § 404 effectively prohibits the unpermitted discharge of dredged or fill material into "the waters of the United States."⁴⁷ According to the legislative history Congress intended the Act to apply to "all 'the waters of the United States' in a geographical sense."⁴⁸ The conference committee report stated that the phrase "navigable waters" should "be given the broadest constitutional interpretation."⁴⁹ The courts have universally ruled that this meant the geographic scope of the Clean Water Act was as broad as Congress' practically unlimited power under the Commerce Clause.⁵⁰ The Supreme Court has approvingly taken note of this judicial approach.⁵¹

There is also no question that § 404 was intended to apply to wetlands. Although the 1972 version of § 404 does not expressly refer to wetlands, the case law and subsequent legislative history establish beyond dispute that discharges into wetlands are subject to § 404's prohibitions. NRDC v. Callaway firmly dispelled any notions that § 404's geographic reach was limited to traditional principles of navigability.⁵² Other courts upheld the application of § 404 to fills in wetlands.⁵³

In 1977, § 404 was the subject of intensive debate as Congress reevaluated the 1972 legislation. A major effort to reduce the section's scope to a navigability standard was met by committee reports and floor statements expressing strong support for § 404 as a wetlands provision.⁵⁴ Senator Muskie, a major sponsor of the 1972 Clean Water Act, expressed satisfaction with § 404's application to wetlands:

There is no question that the systematic destruction of the Nation's wetlands is causing serious, permanent ecological damages …. The unregulated destruction of these areas is a matter which needs to be corrected and which implementation of Section 404 has attempted to achieve.⁵⁵

Opponents of the effort to reduce § 404's geographic scope urged their colleagues to consider the valuable environmental and economic functions performed by wetlands, such as flood control, water purification, wildlife and fisheries habitat, and groundwater recharge.⁵⁶ The proposed jurisdictional reduction was defeated⁵⁷ and § 404(a)'s prohibitions of unpermitted discharges of dredged or fill material in "navigable waters" or "waters [14 ELR 10369] of the United States' has remained unchanged since its 1972 enactment except that certain discharge activities have been exempted.⁵⁸

The significance of the 1977 legislative activities was not lost on the judiciary. The courts soon began to cite the 1977 legislative history as convincing evidence that § 404 applies to discharges in wetlands.⁵⁹

In addition, by 1977 the Corps had adopted a definition of "wetlands" which completely repudiates any notion of navigability as a limitation of the Corps' § 404 authority. This approach is totally in line with Congress' evident intent and has been consistently approved by the courts.⁶⁰

In summary, Congress has struck to its guns on the geographical scope of § 404 despite considerable pressure to do otherwise. Efforts to reduce § 404's reach have been rejected by the courts with a uniformity rare in the federal judiciary on an issue of such significance and controversy. Until the appearance of Riverside Bayview one could safely have said that every wetland meeting the Corp's wetlands definition was within the purview of § 404 unless the area was beyond the reach of the Commerce Clause.

Logical and Legal Problems with the Riverside Bayview Decision.

However, the Sixth Circuit has apparently imposed a significant restriction on the Corps' § 404 authority. Remarkably, the court reached this result in an opinion that reads as if no other court had ruled on the issue.⁶¹

Ashland Oil

In reality, the case was not entirely a matter of first impression even in the Sixth Circuit. Ironically, the court's opinion in United States v. Ashland Oil & Transportation Co.⁶² was the first federal appellate case to rule that the phrase "waters of the United States" in the Clean Water Act was intended to reach far beyond traditional notions of navigability or interstate streams.⁶³ The court in fact ruled that the phrase was intended by Congress to reach to the very limits of the Commerce Clause.⁶⁴ Since the geographical limit "navigable waters" in § 404(a) is defined by the Act to mean "waters of the United States," one could assume that Ashland Oil, though not a § 404 case, would provide some guidance in construing § 404. In fact, a number of courts have relied on Ashland Oil in ruling that § 404 reaches to the limits of Congress' Commerce Clause power.⁶⁵

In Riverside Bayview the Sixth Circuit never even addressed the Commerce Clause issue or acknowledged Ashland Oil. In any even the Riverside Bayview result is difficult to justify under a Commerce Clause analysis. For example, the Tenth Circuit recently ruled that the Corps may assert § 404 authority over an "isolated" lake because the lake provides habitat for migratory waterfowl protected by other federal law and international treaty.⁶⁶ Many types of isolated wetlands such as prairie potholes also provide such haibtat and, for that reason, presumably fall within the constitutional limits of the Corps' § 404 authority.⁶⁷ However, many of these same types of wetlands are not frequently flooded by adjacent streams and in fact are often not anywhere near streams.⁶⁸ The Riverside Bayview decision seems to preclude § 404 authority over such wetlands notwithstanding the wetlands' evident connection to interstate commerce. Thus Riverside Bayview is difficult, if not impossible, to square with controlling case law within the same circuit, namely, Ashland Oil.

"Interpretation" of the 1977 Definition

The Riverside Bayview court not only ignored case law on point, but the stated rationale for the decision is unsupportable. First, the Sixth Circuit purported to interpret the Corps' 1977 definition of wetlands "to require frequent flooding by waters flowing from 'navigable waters.'"⁶⁹ But the Corps' definition does not limit the source of water to "flooding" or inundation. Instead the definition encompasses "areas that are inundated or saturated by surface or ground water."⁷⁰ The frequency of inundation or saturation is measured under the Corps' definition by "a prevalence of vegetation typically adapted for life in saturated soils."⁷¹ Thus the key factor is the saturated condition of the soil and whether it supports wetlands vegetation.The source of the water is irrelevant.

[14 ELR 10370]

The Sixth Circuit was able to fashion its crabbed interpretation of the Corps' definition only by literally reading out of the definition the words "saturated," "ground water," and "saturated soils." In fact, the court purported to quote the Corps' definition three times within two pages of the opinion, but each time conveniently omitted the definition's references to saturation and ground water:⁷² The following quotation of the entire first sentence of the Corps' definition, with the panel's omissions italicized, illustrates the significance of the omissions:

Wetlands are 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.⁷³

The court did not discuss the omitted language or explain why the omitted phrases failed to directly contradict the court's narrow limitation of the definition.

Therefore, the court's "interpretation" of the Corps' definition is completely contrary to the plain meaning of the language in the Corps' regulation.

Although the court suggested that it was merely interpreting the Corps' definition, the issue addressed by the Sixth Circuit was actually one of statutory authority and ultimately — as the court saw it — constitutional authority.⁷⁴ The court did not assert that the definition inaccurately identifies wetlands from a scientific view. Instead, the court seemed concerned that the Corps' definition had "drift[ed]" from the "'navigable waters' Congress contemplated."⁷⁵

Yet, on the issue of statutory interpretation, the Riverside Bayview court also erred by failing to follow the time-honored rule that a statute must be construed "in light of the purposes Congress sought to serve."⁷⁶ Given the abundant evidence of Congress' intent to regulate activities in wetlands because of the value of that resource to the nation,⁷⁷ the Sixth Circuit's restrictive approach is untenable. The court offered no reason to believe that wetlands not frequently flooded by adjacent streams are any less valuable than those within the Sixth Circuit's new restriction. Indeed, the court totally ignored the purposes of the statute in interpreting the meaning of "navigable waters."

Just Compensation

The court's effort to justify its decision on the basis of the Just Compensation Clause is equally meritless because the law of just compensation does not support the court's restrictive reading of the wetlands definition.

According to the Supreme Court an owner of property may be entitled to just compensation when the exercise of regulatory authority "denies an owner economically viable use of his land,"⁷⁸ a determination to be based in part "on the nature and extent of the interference with rights in the parcel."⁷⁹ Whether the exercise of regulatory authority effects a taking depends upon the circumstances of the particular case.⁸⁰

Presumably a court could have determined that denial of a § 404 permit in the Riverside Bayview case deprived the owner of "economically viable use" of its land, although the Sixth Circuit cited nothing in the district court findings or record to support such a conclusion there. However, even if such a result had occurred in Riverside Bayview, there is no way of knowing whether it would occur the next or any other time the Corps asserts jurisdiction over a wetland that is outside the limits the Sixth Circuit imposed on the scope of § 404. Similarly, the owner of a wetland "frequently flooded by … adjacent streams"⁸¹ could conceivably suffer a taking notwithstanding the linedrawing in Riverside bayview. In short, determining whether a wetland is "frequently flooded by … adjacent streams" tells one nothing about whether the assertion of regulatory jurisdictionover such a wetland constitutes a taking.

Moreover, the Supreme Court regularly rejects attempts to limit statutory authority premised on the ground that in some instances the assertion of such authority may constitute a taking.⁸² The rationale for this rule is simple. First, it is generally impossible to say that the mere enactment of a statutory provision such as § 404 will result in a taking in every instance it is applied.⁸³ Section, if a particular application of the provision results in a taking, the owner's remedy is to seek just compensation from the United States — not the invalidation of the statutory authority.⁸⁴

This principle was recently reaffirmed by the Supreme Court in Ruckelshaus v. Monsanto Co.,⁸⁵ involving a challenge to certain regulatory provisions under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).⁸⁶ A pesticide manufacturer sought to prohibit the Environmental Protection Agency from considering or disclosing certain trade secrets under the Act, arguing that such action would constitute a taking of property, namely, the trade secrets. The Court conceded that the Act might effect such a taking in some instances, but refused to invalidate the statute or enjoin its enforcement on that ground.⁸⁷

[14 ELR 10371]

Equitable relief is not available to enjoin an alleged taking of private property by a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking.⁸⁸

The Court noted that such a compensation action was available for any taking resulting from FIFRA because Congress had not expressly withdrawn the operation of that Act from the Tucker Act,⁸⁹ which provides a cause of action for federal takings.⁹⁰ Since nothing in FIFRA precluded the Tucker Act remedy, a taking claim could not be the basis for invalidating the regulatory act.⁹¹ The same reasoning applies to § 404, and thus Riverside Bayview improperly limited the Corps' jurisdiction on the basis of potential takings.

The Sixth Circuit's reliance on Kaiser Aetna v. United States⁹² as the basis for the Just Compensation ruling is also misplaced. Kaiser Aetna involved the government's attempt to assert a navigational servitude, resulting in free public entry, over a previously landlocked pond which had been opened to waterborne access from the Pacific Ocean.⁹³ The Supreme Court described the government's effort as an attempt to turn the previously private pond "into a public aquatic park."⁹⁴

Even if the Corps completely denies permission for a landowner to deposit any "dredged or fill material" on its land, the owner's right to exclude the general public would remain unhampered. Due to the peculiar circumstances of that case, the Kaiser Aetna Court focused on the government's deprivaton of "the 'right to exclude' so universally held to be a fundamental element of the property right,"⁹⁵ and found that "the imposition of the navigational servitude … will result in an actual physical invasion of the privately owned marina."⁹⁶ The Supreme Court relied on these factors, not present in the Riverside Bayview case, to distinguish its own holding from takings cases arising in the regulatory context.⁹⁷ Later the Supreme Court refused to apply Kaiser Aetna in a case challenging a land use regulation which, like § 404, does not "extinguish a fundamental attribute of ownership."⁹⁸ Thus Kaiser Aetna provides no support for the anomalous result reached by the Sixth Circuit.

Scientific Approach to Jurisdiction

Despite its logical and legal shortcomings, the principal problem with the Riverside Bayview decision is its attempt to turn back the clock to the days when the federal government's interest in water was limited to navigability.⁹⁹ The opinion indicates an effort to limit § 404's reach to areas which have some sort of flow connection to traditional navigable waters.¹⁰⁰

If so, then the Riverside Bayview decision is a remarkably anachronistic reaction to Congress' effort to deal with environmental problems on a scientific basis. The history of the Clean Water Act is a perfect example of Congress' decision to eliminate legal traditions left over from an earlier era when environmental problems were not considered to be a national issue.After 24 years of ineffective federal legislation, Congress finally decided that the nation's water would not become significantly cleaner if the federal government limited its efforts to controlling pollution in "interstate streams" or traditionally navigable waters.¹⁰¹ When the 1972 FWPCA was passed, Congress expressed its recognition that state lines and the degree to which a stream could bear human navigation were irrelevant to the existence of water pollution and therefore would be irrelevant to any meaningful solution of the problem.¹⁰²

The old self-imposed legislative limits on the federal government were jettisoned in favor of reaching "all waters of the United States" to the limits of Congress' constitutional powers because "water moves in hydrological cycles."¹⁰³ The courts immediately jumped on the same bandwagon, as illustrated by United States v. Holland, a landmark § 404 wetlands case:

The Court is of the opinion that the mean high water line is no limit to federal authority under the [Clean Water Act]. While the line remains a valid demarcation for other purposes, it has no rational connection to the aquatic ecosystems which the [Act] is intended to protect. Congress has wisely determined that federal authority over water pollution properly rests on the Commerce Clause and not on past interpretations of an act designed to protect navigation. And the Commerce Clause gives Congress ample authority to reach activities above the mean high water line that pollute the waters of the United States.¹⁰⁴

The Holland court's approach stands in stark contrast to Riverside Bayview's.

There is no basis for exempting § 404 from this clearly [14 ELR 10372] evinced congressional attitude, particularly since Congress chose to apply to that section, by definition, the same geographical limit used in the rest of the Act.¹⁰⁵ Accordingly, one can conclude, and most courts have concluded, that artificial jurisdictional limits on § 404 were abandoned by Congress in favor of a comprehensive approach that gets at the heart of the problem: the illadvised destruction of wetlands.

Section 404 was apparently passed because wetlands are a valuable resource performing important economic and ecological functions and deserve protection by the national government.¹⁰⁶ Therefore the goal of the regulating agencies, the Corps and the EPA, should be to accurately define wetlands from a scientific point of view in order to insure that all areas which scientists consider to be wetlands are in fact subject to the regulatory provisions of § 404. In this way areas which perform wetlands functions will be theoretically protected by § 404 because proposed discharges will be subject to some sort of review process before being permitted. Only to the extent that the regulatory program reaches all areas that are truly wetlands from a scientific point of view are the goals of Congress met. Thus any artificial limitations on the types of wetlands covered (i.e., nonscientific limitations based on policy or traditional legal concepts such as navigability-in-fact) frustrate the intent of Congress. This is demonstrated by the fact that Congress has never indicated that it intended to differentiate among types of wetlands in § 404's coverage — although certain types of activities in wetlands are expressly or impliedly excluded from § 404.¹⁰⁷ Accordingly, all limitations on the types of wetlands covered by § 404, regardless of the source of the limitation, i.e., the courts or the federal agencies, violate Congress' intent unless they are designed to exclude (1) areas that are not truly wetlands from a scientific point of view or (2) wetlands that cannot be regulated under the Commerce Clause.

Happily the scientific issue of what is a wetland is one that scientists can answer with a fair degree of agreement and predictability.¹⁰⁸ The Corps has adopted and successfully applied for seven years a wetlands definition that allows reasonably accurate identification of wetlands areas which are most likely to perform wetlands functions.

Although there may be ways to improve the definition to more acurately or readily identify wetlands, all other tinkering with the definition to limit its application is purely a matter of policy or legal philosophy and should be recognized as such. These latter types of restrictions should be measured strictly by the standard of Congress' intent and authority under the Commerce Clause. Given the breadth of Congress' intent and constitutional authority, it is difficult to imagine any valid restriction on the areas covered by § 404 unless such restriction is designed to make the wetlands definition more accurately identify what scientists consider to be wetlands.

Therefore Riverside Bayview is a serious effort to frustrate Congress' goal. Since the source of the water is largely irrelevant in determining whether an area supports a prevalance of water-tolerant plant species, the Sixth Circuit's requirement of flooding by adjacent streams must be rejected. The same is true of the court's requirement that the flooding be "frequent."

The problem with the Sixth Circuit's approach is illustrated by the Court's notion that the wetlands vegetation on the site was "abnormal" because it resulted from "unprecedented" flooding or "unusual soil conditions."¹⁰⁹ However, wetlands are dynamic areas that result from the interaction of climatic, geologic, hydrologic, and biologic processes.¹¹⁰ It is therefore anomalous to suggest that some wetland areas are abnormal or unusual.¹¹¹

The court apparently considered the flooding here to be unusual because it occurred only five or six times in the 87 years during which records have been kept for Lake St. Clair levels.¹¹² The point is, however, that Congress gave no indication that § 404 was intended to cover only "normal" wetlands. The Corps' definition identifies wetlands as they now exist¹¹³ which makes sence because if an area now exists as a wetland then it is likely to be performing the wetland functions which Congress thought were important and sought to protect. The fact that the area may have been dry enough in the past to be farmed or that someone installed sewer lines there nearly 70 years ago is irrelevant. As the record here shows, the area nonetheless still functions as a wetland now and should be protected as such.¹¹⁴

In summary, Riverside Bayview reconstructs one of the very evils Congress sought to eliminate in passing the 1972 FWPCA: artificial legal barriers to the solution of complex scientific problems. The drawbacks of such an approach are illustrated by the results in this case.

Conclusion

For the reasons stated here, other courts should decline to follow Riverside Bayview.¹¹⁵ The 10 years of case law [14 ELR 10373] built up around the phrase "waters of the United States" is consistent and founded in logic and established principles of statutory construction. Rejection of that body of law in favor of a free-floating approach that ignores prior case law and congressional intent runs the risk of making § 404 jurisdictional determinations totally unpredictable. It is difficult to see how this would benefit anyone concerned: the public, the discharge proponents, or the regulating agencies.

1. 729 F.2d 391, 14 ELR 20366 (6th Cir. 1984).

2. Comment, United States v. Riverside Bayview Homes, Inc.: Mountain or Molehill<0">, 14 ELR 10333 (Sept. 1984).

3. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 931 (1972) (codified as amended at 33 U.S.C. §§ 1251 — 376, ELR STAT. 42101).

4. See discussion of regulatory history, 42 Fed. Reg. 37123 (July 19, 1977).

5. Want, Federal Wetlands Law: The Cases and the Problems, 8 HARV. ENVTL. L. REV. 1, 11 & nn. 90, 91 (1984).

6. Id.

7. 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).

8. Id. at 686, 5 ELR at 20285.

9. 40 Fed. Reg. 31320 (July 25, 1975) (formerly codified at 33 C.F.R. § 209.120).

10. Id.

11. Id. at 31324-31325 (formerly codified at 33 C.F.R. § 209.120(d)(2)(i)(h)).

12. 42 Fed. Reg. 37122 (July 19, 1977).

13. Id. at 37128 (codified at 33 C.F.R. § 323.2(c), ELR REG. 46380).

14. 42 Fed. Reg. 37122, 27128 (July 19, 1977).

15. Id.

16. United States v. Riverside Bayview Homes, Inc., 729 F.2d 391, 392, 393, 14 ELR 20366 (6th Cir. 1984).

17. Id. at 393, 14 ELR at 20366. The landowner's application was denied for failure to obtain necessary state authorization for the fill. United States' Petition for Rehearing, etc. at 13 n.13.

18. 729 F.2d at 393, 14 ELR at 20366.

19. Id.

20. United States v. Riverside Bayview Homes, Inc., 7 ELR 20445 (E.D. Mich. 1977).

21. Transcript from United States v. Riverside Bayview Homes, Inc., 7 ELR 20445 (E.D. Mich., 1977) [hereafter cited as "Transcript" with date of hearing noted] January 13, 1977 at 20-21, 36; January 17, 1977 at 47-75; January 22, 1977 at 103, 114-15.

22. Id., January 13, 1977 at 20-21; January 15, 1977 at 8, 14, 21, 84; January 17, 1977 at 48, 61.

23. Id., January 15, 1977 at 21. The term "upland plants" is used to describe plants that are incapable of surviving and reproducing in the saturated soil conditions present in wetlands. Many species are adapted to cope with these stressful soil conditions and remain wetland indicators even though they are not dependent upon saturated soil conditions. TINER, WETLANDS OF THE UNITED STATES: CURRENT STATUS AND RECENT TRENDS 3 and 58-89 (1984). Examples include ash, red maple, cottonwood, and sedge, all of which are common wetland plants, id., but which the Sixth Circuit described as "not necessarily wetland-type vegetation" because they are sometimes found in upland locations. Riverside Bayview, 729 F.2d at 397 n.3, 14 ELR at 20368 n.3. However, the presence of these species does not undermine the wetlands determination particularly in the complete absence of species intolerant of saturated soils.

24. Transcript, January 15, 1977 at 156.

25. Id. at 54, 55, 97.

26. Transcript, January 22, 1977 at 114-15, 163.

27. 7 ELR at 20445, 20447.

28. Id. at 20446-47.

29. Id.

30. United States v. Riverside Bayview Homes, Inc. 615 F.2d 1363 (6th Cir. 1980); see 729 F.2d at 392, 14 ELR at 20366.

31. See 729 F.2d at 396, 14 ELR at 20368.

32. Id. at 392, 14 ELR at 20366.

33. 729 F.2d at 392 and 397-98, 14 ELR at 20366, 20368-69.

34. Id. at 392, 14 ELR at 20366.

35. Transcript, January 17, 1977 at 64.

36. 729 F.2d at 393, 14 ELR at 20366.

37. Id. at 398, 14 ELR at 20369; Transcript, January 15, 1977 at 134.

38. 729 F.2d at 396, 14 ELR at 20368.

39. Id. at 397, 14 ELR at 20368.

40. Id. at 398, 14 ELR at 20369.

41. Id. at 396, 14 ELR at 20368.

42. Id. at 397-99, 14 ELR at 20368-69.

43. Id. at 398-99, 14 ELR at 20369.

44. Id. at 398-99, 14 ELR at 20369.

45. United States v. Riverside Bayview Homes, Inc., 14 ELR at 20617 (6th Cir. June 8, 1984).

46. Id.

47. FWPCA §§ 404(a), 502(7), 33 U.S.C. §§ 1344(a), 1362(7), ELR STAT. 42142, 42146.

48. United States v. Ashland Oil & Transportation Co., 504 F.2d 1317, 1323-24, 4 ELR 20784, 20787 (6th Cir. 1974), quoting Rep. Dingell's floor statement, 118 CONG. REC. 33756-57 (1972).

49. CONF. REP. NO. 1236, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & AD. NEWS 3822.

50. E.g., Utah v. Marsh, 740 F.2d 799, 802, 14 ELR 20683, 20684 (10th Cir. 1984) (§ 404 case); Avoyelles Sportsmen's League v. March, 715 F.2d 897, 914-16 & n.33, 13 ELR 20942, 20950-51 & n.33 (5th Cir. 1983), aff'g 511 F. Supp. 278, 285-86, 11 ELR 20321, 20323-24 (W.D. La. 1981) (§ 404 case); United States v. Tilton, 705 F.2d 428, 431, 13 ELR 20583, 20583 (11th Cir. 1983) (§ 404 case); Deltona Corp. v. United States, 657 F.2d 1184, 1186 (Ct. Cl. 1981) (§ 404 case); United States v. Byrd, 609 F.2d 1204, 1209, 9 ELR 20757, 20759-60 (7th Cir. 1979) (§ 404 case); Consolidation Coal Co. v. Costle, 604 F.2d 239, 243, 9 ELR 20511, 20512 (4th Cir. 1979), rev'd on other grounds, 440 U.S. 64 (1980); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55 & n.15, 8 ELR 20480, 20486 & n.15 (9th Cir. 1978) (§ 404 case); Minnesota v. Hoffman, 543 F.2d 1198, 1200 n.1, 7 ELR 20066, 20066 n.1 (8th Cir. 1976), cert. den., 430 U.S. 977 (1977) (§ 404 case).

51. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 282, 11 ELR 20569, 20573 (1981).

52. 392 F. Supp. 685, 5 ELR 20285.

53. E.g., Avoyelles Sportmen's League, 715 F.2d at 914-16 & n.33, 13 ELR at 20950-51 & n.33; Tilton, 705 F.2d at 431, 13 ELR at 20583; Deltona Corp., 657 F.2d at 1186; Byrd, 609 F.2d at 1209, 9 ELR at 20759-60; Leslie Salt, 578 F.2d at 754-56 & nn.15-16, 8 ELR 20486-87 & nn.15-16; United States v. Ciampitti, 583 F. Supp. 483, 491-92 & nn.3, 4 (D.N.J. 1984).

54. See legislative history summarized in Avoyelles Sportmen's League, 715 F.2d at 915-16, 13 ELR at 20950.

55. Senate debate, Aug. 4, 1977, CONGRESSIONAL RESEARCH SERVICE, 95TH CONG., 1ST SESS., 4 LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1977 at 869 (Comm. Print 1977) (hereinaftercited as LEG. HIST.).

56. See e.g., 4 LEG. HIST. at 881-82 (Sen. Stafford); 917 (Sen. Chafee); 920-21, 923 (Sen. Baker); 927 (Sen. Hart); 1247 (Reps. Edgar and Myers); 1317 (Rep. Lehman); and 1320 (Rep. Bonior).

57. The proposed Bentsen amendment, designed to bring S. 1952 (amending the 1972 Act) into line with H.R. 3199 which contained a provision limiting "navigable waters" in § 404 to a navigable-in-fact standard (up to the mean high tide line) and adjacent wetlands, was defeated (see 4 ELG. HIST. 947). The conference committee rejected the House version. 3 LEG. HIST. 281-89. Congress rejected five similar efforts to reduce § 404 jurisdiction in 1976. Avoyelles Sportsmen's League v. Alexander, 511 F. Supp. 278, 288, 11 ELR 20321, 20324 (W.D. La. 1981), aff'd, 715 F.2d 877, 13 ELR 20942 (5th Cir. 1983).

58. E.g., 33 U.S.C. § 1344(f) and (r), ELR STAT. 42143.

59. E.g., Avoyelles Sportsmen's League, 715 F.2d at 914-16, 13 ELR at 20950-51; see also Minnehaha Creek Watershed Dist. v. Hoffman, 597 F.2d 617, 626, 9 ELR 20334, 20337-38 (8th Cir. 1979) (1977 legislative history shows Congress' awareness and approval of Corps' § 404 program).

60. E.g., Avoyelles Sportsmen's League, 715 F.2d at 910-13, 13 ELR at 20948-49; Tilton, 705 F.2d at 431, 13 ELR at 20583; Deltona Corp., 657 F.2d at 1186-87 & n.5; Ciampitti, 583 F. Supp. at 491-94; United States v. City of Fort Pierre, 580 F. Supp. 1036, 1038-40, 14 ELR 20209, 20210-11 (D.S.D. 1983), appeal pending No. 84-1162 (8th Cir.); United States v. Hanna, 19 ERC 1068, 1084-85 (D.S.C. 1983); Bayou des Familles Development Corp. v. U.S. Corps of Engineers, 541 F. Supp. 1025, 1035-36 & n.5, 13 ELR 20055, 20059-60 & n.5 (E.D. La. 1982); United States v. Carter, 12 ELR 20682, 20683-84 (S.D. Fla. Feb. 25, 1982). In addition, during 1977 floor debate on proposed changes to § 404, Senator Baker favored the Corps' approach: "The location of a coastal marsh by using the aquatic vegetation line accurately identifies most marsh areas." 123 CONG. REC. 26718 (1977).

61. In a footnote the court acknowledged but did not discuss Avoyelles Sportsmen's League, in which the Fifth Circuit upheld the Corps' 1977 wetlands definition. 729 F.2d at 397 n.4, 14 ELR at 20368 n.4.

62. 504 F.2d 1317, 4 ELR 20781 (6th Cir. 1974). The defendant in this case was charged with violation of § 311(b)(5) of the 1972 Act, 33 U.S.C. § 1321(b)(5), for discharging oil into a nonnavigable stream without immediately reporting the discharge, 504 F.2d at 1319, 4 ELR at 20784.

63. Id. at 1320-29, 4 ELR at 20785-89.

64. Id. at 1323-25, 4 ELR at 20787-88.

65. E.g., Utah v. Marsh, 740 F.2d at 804, 14 ELR at 20684; Avoyelles Sportsmen's League, 715 F.2d at 916 n.33, 13 ELR at 20951 n.33; United States v. Lambert, 695 F.2d 536, 538, 13 ELR 20436, 20437 (11th Cir. 1983); United States v. Byrd, 609 F.2d at 1209, 9 ELR at 20759-60; United States v. Ciampitti, 583 F. Supp. at 491.

66. Utah v. Marsh, 740 F.2d at 804, 14 ELR at 20684.

67. M. WELLER, FRESH WATER MARSHES: ECOLOGY AND WILDLIFE MANAGEMENT 7-8 (1981).

68. Id. at 12; D. HUBBARD, HYDROLOGY OF PRAIRIE POTHOLES: A SELECTED ANNOTATED BIBLIOGRAPHY 9, 29 (1981).

69. 729 F.2d at 396-99, 14 ELR at 20368-69.

70. 33 C.F.R. § 323.2(c), ELR REG. 46380 (emphasis added).

71. Id. (emphasis added).

72. 729 F.2d at 396-97, 14 ELR at 20368.

73. 33 C.F.R. § 323.2(c), ELR REG. 46380 (emphasis added).

74. See 729 F.2d at 397-99, 14 ELR at 20368-69.

75. Id. at 397, 14 ELR at 20369.

76. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979).

77. See supra note 54-57 and accompanying text.

78. Agins v. City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980).

79. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 130-31, 8 ELR 20528, 20534 (1978).

80. Id. at 124, 8 ELR at 20533.

81. 729 F.2d at 398, 14 ELR at 20369.

82. Dames & Moore v. Regan, 453 U.S. 654, 688-90 (1981); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 293-97 & n.40, 11 ELR 20569, 20576-77 & n.40 (1981); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 94 n.39, 8 ELR 20545, 20553 n.39 (1978).

83. Hodel v. Virginia Surface Mining, 452 U.S. at 293-97, 11 ELR at 20576-77.

84. Id. at 297 n.40, 11 ELR at 20577 n.40; Dames & Moore, 453 U.S. at 688-90; Duke Power, 438 U.S. at 94 n.39, 8 ELR at 20553 n.39.

85. 104 S. Ct. 2862, 14 ELR 20538 (1984).

86. 7 U.S.C. § 136 et seq., ELR STAT. 42301.

87. 104 S. Ct. at 2874-79, 2880-83, 14 ELR at 20543-45, 20546-47.

88. Id. at 2880, 14 ELR at 20546.

89. 28 U.S.C. § 1491.

90. 104 S. Ct. at 2881, 14 ELR at 20546.

91. Id. at 2882-83, 14 ELR at 20547.

92. 444 U.S. 164, 10 ELR 20042 (1979).

93. Id. at 165-66, 10 ELR at 20043.

94. Id. at 180, 10 ELR at 20046.

95. Id. at 179-80, 10 ELR at 20046 (footnote omitted).

96. Id. at 180, 10 ELR at 20046.

97. Id. at 179-80, 10 ELR at 20046.

98. Agins v. City of Tiburon, 447 U.S. at 262, 10 ELR at 20362 — 63.

99. Representative Dingell, a sponsor of the 1972 Clean Water Act, placed in constitutional context the history and origins of the traditional federal interest:

The U.S. Constitution contains no mention of navigable waters. The authority of Congress over navigable waters is based on the constitution's grant to Congress of "Power … to regulate [interstate] commerce …." Although most interstate commerce 150 years ago was accomplished on waterways, there is no requirement in the constitition that the waterway must cross a state boundary in order to be within the interstate commerce power of the Federal Government …. No longer are the old, narrow definitions of navigability, as determined by the Corps of Engineers, going to govern matters covered by this bill.

118 CONG. REC. 33756-57, quoted in Ashland Oil, 504 F.2d at 1323-24, 4 ELR at 20787.

100. "Neither is it clear that Congress intended to subject to the permit requirement inland property which is rarely if ever flooded. Nor is it clear that the statute was intended to cover a piece of property a mile inland from Lake St. Clair …." 729 F.2d at 397-98, 14 ELR at 20369.

101. See Note, Effective National Regulation of Point Sources Under the 1972 Federal Water Pollution Control Act, 10 GA. L. REV. 983, 984-87 & nn.2-22 (1976).

102. See discussion in Ashland Oil, 504 F.2d at 1320-29, 4 ELR at 20785-89.

103. 2 LEG. HIST. 1495 (SEN. COMM. REP. 1972 ACT), quoted in Leslie Salt, 578 F.2d at 754-55 n.15, 8 ELR at 20486 n.15.

104. 373 F. Supp. 665, 676, 4 ELR 20710, 20715 (M.D. Fla. 1974).

105. 33 U.S.C. §§ 1344(a), 1362(7), ELR STAT. 42142, 42146.

106. See supra notes 54-58 and accompanying text.

107. For example, § 404 only regulates the discharge of dredged or fill material into wetlands, 33 U.S.C. § 1344(a), ELR STAT. 42142, and certain agricultural activities are exempted from § 404, 33 U.S.C. § 1344(f), ELR STAT. 42142.

108. See e.g., L. COWARDIN, CLASSIFICATIONS OF WETLANDS AND DEEPWATER HABITATS OF THE UNITED STATES 3-4 (1979).

109. 729 F.2d at 393, 397 n.3, 14 ELR at 20366, 20368 n.3.

110. Gosselink & Turner, The Role of Hydrology in Freshwater Wetlands Ecosystems, in Good, FRESHWATER WETLANDS: ECOLOGICAL PROCESSES AND MANAGEMENT POTENTIAL 63 — 78 (1977).

111. The Sixth Circuit construed the term "abnormal," as used in the preamble to the Corps' 1977 definition, to refer to water-tolerant vegetation which is not caused by inundation. 729 F.2d at 397, 14 ELR at 20368.Since the Corps' definition clearly includes wetlands that are "saturated by … ground water," 33 C.F.R. § 323.2, ELR REG. 46380, and since the source of water is scientifically irrelevant to the existence of a wetland, the Sixth Circuit's construction is incorrect.

112. 729 F.2d at 396-97, 14 ELR at 20368.

113. The preamble to the final rule establishing the 1977 definition stated: "Our intent under Section 404 is to regulate discharges of dredged or fill material into the aquatic system as it exists, and not as it may have existed over a record period of time." 42 Fed. Reg. 37128 (July 19, 1977).

114. See United States v. Ciampitti, 583 F. Supp. at 492 — 95 (rejecting prior uses of site as bar to § 404 jurisdiction).

115. At least two proponents of wetlands fills have cited Riverside Bayview in arguing that the Corps has no jurisdiction over wetlands which are not inundated. Brief of Cook Inlet Region, Inc., National Audubon Society v. Cook Inlet Region, Inc., No. A-84-401 (D. Alaska 1984); letter from Prudential Insurance Company to Army Corps of Engineers concerning activities in New Jersey. (Materials on file with the authors.) However, one federal court recently upheld the Corps' vegetation-indicators approach to defining wetlands and declined to follow Riverside Bayview. United States v. Lambert, 14 ELR 20588, 20590 (M.D. Fla. 1984).