II. THE WETLANDS DETERMINATION

A. Statutory and Regulatory Background

The Federal Water Pollution Control Act was enacted to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. 1251(a) (1976). The Act declares that "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." Id. 1251(a)(1). Section 301 of the Act states that, except as permitted under certain exceptions, "the discharge of any pollutant by any person shall be unlawful." Id. 1311(a). One of the express exceptions to this rule is contained in section 404, 33 U.S.C. 1344, which authorizes the Corps to issue permits for the disposal of dredged or fill materials into "navigable waters."

The Act contemplates that applications for section 404 permits are to be evaluated by the Corps under regulations developed *394 jointly by the Environmental Protection Agency and the Corps. See id. 1344(b); 40 C.F.R. 230 (1983). These regulations are supposed to identify the factors to be used in determining whether filling will have an adverse impact on water quality. A person who fills or otherwise discharges pollutants into "navigable waters" without a permit subjects himself to civil or criminal penalties. See 33 U.S.C. 1344(h)(1)(G) (violations of permit program entail "civil and criminal penalties and other ways and means of enforcement").

The "navigable waters" which the Federal Water Pollution Control Act was meant to protect are defined in the Act as "the waters of the United States, including the Territorial seas." [FN2] Id. 1362(7). The Act does not mention or define "wetlands." The Corps and the EPA, however, developed regulations pursuant to the Act covering areas denominated as "wetlands" as well as the congressionally specified "navigable waters." These regulations, including the permit procedures noted above, seek to prohibit tampering with wetlands without the express permission of the agencies.

 

B. The Wetlands Definition

At the time that this action was initially brought, the Corps regulation defined wetlands and provided that a permit must be obtained for filling of Freshwater wetlands including marshes, shallows, swamps and similar areas that are contiguous or adjacent to other [sic] navigable waters and that support freshwater vegetation. "Freshwater wetlands" means those areas that are [1] periodically inundated and that [2] are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction 33 C.F.R. 209.120(d)(2)(i)(h) (1976) (emphasis added).

The question before the District Court in the initial proceeding was whether the Riverside land possessed the characteristics set forth in the above definition and thus should be classified as a wetland subject to the Corps' regulatory jurisdiction. Judge Kennedy found that the land was contiguous to a navigable water, Black Creek, which is a tributary of Lake St. Clair. Furthermore, she found that because of the type of soil found on the land, the unfilled Riverside property was "characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." These two aspects of the wetlands definition having been satisfied, the District Court focused on the question of whether the land was "periodically inundated."

Judge Kennedy's resolution of this issue was based on what she admitted was an unavoidably "arbitrary" interpretation of the term "periodic" as it is used in the Corps regulation. She accepted the standard dictionary definition, "flooded," as the meaning of "inundated," but was compelled to rely on a rough statistical plotting of the potential for flooding of the Riverside land in order to determine whether it was "periodically inundated," or flooded on a "periodic" basis.

Judge Kennedy found that the Riverside land was rarely if ever inundated. From testimony concerning Lake St. Clair which established that a water level of 575.0 feet would be reached or surpassed only about two percent of the time, she concluded that it was difficult to ascertain whether the Riverside land south and east of the contour line of 575.5 feet was ever flooded. She explained:

"The mean of the elevations on the south and east of defendants' property is 574.6, ranging from 575.70 to 574.45. Using the monthly mean level of Lake St. Clair ... and adding six inches, the normal variation, it is immediately apparent that *395 there have been long periods of time when none of the property was inundated by water from contiguous or adjacent navigable waters. Indeed, this has been true most of the time."   Opinion and Order Granting Motion for Preliminary Injunction in Part at 6 (emphasis added).

Judge Kennedy noted that the high-water levels in the period from 1973-75 were unprecedented. From this and other statistical information, she extrapolated that "there have been periods in only 14 of the 80 years of recorded lake levels in which the monthly mean inundated the property,--or, 17% of the time," and that "[s]ome of the higher elevations have been inundated only during the last recent unprecedented high water or have never been inundated." Id. (emphasis added).

Despite these misgivings, Judge Kennedy found that there was sufficient evidence from which to conclude that the land had been "inundated." Accordingly, she then turned to the question of whether that inundation was "periodic," observing that "[t]he Court is left in the unenviable position of having to define 'periodic' without knowing the reason for the adoption of this standard." Id. at 7. She found that the Riverside land at the contour line of 575.5 feet above sea level had been inundated on four to six occasions in the past eighty years. Acknowledging that there was no precedent for her analysis, Judge Kennedy reasoned:

"If treating the years 1972-1975 and 1952-1953, as one occurrence, then the lake levels have exceeded 575 feet only four times (1928, 1952-1953, 1969 and 1972-1975). If the level of 574.9 feet were to be considered, the number of occurrences would increase to six ... [I]t is clear that determining the level at which the inundation would be considered 'periodic' is difficult and perhaps somewhat arbitrary. The Court must choose the point at which an occurrence became periodic. It has selected more than five. It therefore determines that the appropriate level is 575 feet, plus the half-foot of normal monthly fluctuation [of the mean high water level of Lake St. Clair] above the mean."   Id.

On this basis, the District Court enjoined Riverside from placing fill below the 575.5 foot contour line without first obtaining a Corps permit. Under this ruling, some eighty percent of the land was denominated as a "wetland," and therefore was not usable as contemplated by the landowner without the government's permission.

In 1977, after Judge Kennedy's initial permanent injunction was issued, the Corps wetlands definition on which the ruling was based was repealed and replaced. Wetlands are now defined as

"those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.  Wetlands generally include swamps, marshes, bogs and similar areas."   33 C.F.R. 323.2(c) (1983).

In the preamble to the new regulations, the Corps explained that the wetlands definition had been changed "to eliminate several problems and achieve certain results." The reference to "periodic inundation" was deleted because

"[m]any interpreted that term as requiring inundation over a record period of years. Section 404 is intended to regulate discharges of dredged or fill material into the acquatic system as it exists, and not as it may have existed over a record period of time."  42 Fed.Reg. 37128 (July 19, 1977) (emphasis added).

The preamble goes on to indicate that the new definition "pertains to an existing wetland and requires that the area be inundated or saturated by water at a frequency and duration sufficient to support aquatic vegetation." Id.

For similar reasons, the Corps also eliminated the term "normally" in the wetlands definition, replacing it with the phrase, "and that under normal circumstances do support." The preamble notes that the *396 term "normally" was used in the original version of the definition "to respond to those situations in which an individual would attempt to eliminate the permit review requirement of Section 404 by destroying the aquatic vegetation, and to those areas that are not aquatic but experience an abnormal presence of aquatic vegetation." Id. (emphasis added). Significantly, the preamble notes that it is still the case under the new regulation that "[t]he abnormal presence of aquatic vegetation in a non-acquatic area would not be sufficient to include that area within the Section 404 program." Id.


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