IV. NARROW INTERPRETATION OF "WETLANDS" REGULATION NECESSARY

In deciding that the District Court erred on remand in failing properly to assess the impact of the new wetlands definition upon Judge Kennedy's earlier wetlands determination, we construe the regulation containing the definition somewhat narrowly in order to avoid serious questions concerning the validity of the definition itself under the Act. In delegating authority to the Corps under the Federal Water Pollution Control Act, Congress defined the subject matter intended to be protected by the statute as the "navigable waters." Section 502(7) defines "navigable waters" as "waters of the United States including the Territorial seas." The language of the statute makes no reference to "lands" or "wetlands" or flooded areas at all.

Congress may, indeed, have meant to extend the protections of the Act beyond the straightforward definition it provided of "navigable waters." [FN4] The question, however, is how far away from "navigable waters" Congress contemplated that the regulations under the Act could drift. It is certainly not clear from the statute that the Corps' jurisdiction goes beyond navigable waters and perhaps the bays, swamps and marshes into which those navigable waters flow. Neither is it clear that Congress intended to subject to the permit *398 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 which has been farmed in the past and is now platted and laid out for subdivision development with the fire hydrants and storm sewers already installed.

To prohibit any development or change of such property by the landowner raises a serious taking problem under the fifth amendment. It is well established that government regulation can effect a fifth amendment taking. The rationale, as stated by Justice Brennan, is that "[p]olice power regulations such as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal condemnation or physical invasion of property." San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 652, 101 S.Ct. 1287, 1304, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting). Recently, in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), the Supreme Court addressed a problem markedly similar to this one and declared:

"Although the Government is clearly correct in maintaining that the now dredged Kuapa Pond falls within the definition of 'navigable waters' as this Court has used that term in delimiting the boundaries of Congress' regulatory authority under the Commerce Clause, ... this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation."  Id. at 172, 100 S.Ct. at 388 (citations omitted).

In Kaiser Aetna, the Supreme Court found that the government's attempt to create a public right of access to a pond which was improved so as to be capable of supporting navigation but had always been considered private property "goes so far beyond ordinary regulation or improvement for navigation as to amount to a taking ...." Id. at 178, 100 S.Ct. at 392 (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). The Court found the Kaiser Aetna petitioners' interest in their dredged marina-style subdivision community which included Kuapa Pond "strikingly similar" to that of owners of fast land adjacent to navigable water, like Riverside, noting that there was no doubt that "when the Government wishe[s] to acquire fast lands, it [is] required by the Eminent Domain clause of the Fifth Amendment to condemn and pay fair value for that interest." Id. at 177, 100 S.Ct. at 391. The Court concluded:

"[I]f the Government wishes to make what was formerly Kuapa Pond into a public aquatic park after petitioners have proceeded as far as they have [in developing it as a private subdivision] it may not, without invoking its eminent domain power and paying just compensation, require them to allow free access to the dredged pond while petitioners' agreement with their customers calls for an annual $72 regular fee."  Id. at 180, 100 S.Ct. at 393. 

The parallels between Kaiser Aetna and this case are obvious and hardly require elaboration. We note only that we see a very real taking problem with the exercise of such apparently unbounded jurisdiction by the Corps, a problem we avoid by construing 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." See 2A SUTHERLAND ON STATUTORY CONSTRUCTION 45.11, at 33-34 (C. Sands ed. 1973) (discussing presumption of constitutionality of statutes).

Accordingly, we interpret the words "inundated at a frequency and duration sufficient to support, and that under normal circumstances [does] support [wetlands vegetation]" as set forth in the amended regulation to require frequent flooding by waters flowing from "navigable waters" as defined in the Act. The definition thus covers marshes, swamps, and bogs directly created by such waters, but not inland low-lying areas such as the one in question here that sometimes become saturated with water.


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