United States v. Riverside Bayview Homes

Secondary Discussion Question 1

Why does the Corps of Engineers want to include these wetlands within the section 404 permit scheme?

One possibility is that every bureaucracy (or perhaps every organization, or even every entity) wishes to enlarge the scope of its authority.  If the Corps is no exception, then the Corps would seek to include as many wetlands as possible within the section 404 permitting scheme.

Another possibility is that the Corps especially wants to expand its authority in this area because the Corps has a particular agenda (besides simply the accumulation of authority) that greater control over wetlands use will serve.  The Corps might consider itself a pro-environmental organization seeking to preserve wetlands in the face of what it assumes will be parochial local interests in filling wetlands.   Alternatively, the Corps might consider itself an anti-environmental organization seeking to grant fill permits whenever possible, in order to prevent local environmental extremists from blocking useful development. 

Yet another possibility is that the Corps cares not so much about wetlands per se as it cares about the contribution that wetlands make to one historically prominent mission of the Corps: mastering the hydrology of the United States in the service of flood control, power generation, and the provision of drinking water.   (The other historically primary mission of the Corps--the construction of field and coastal fortifications--has faded from view.)  Wetlands are an important part of the hydrological cycle, so the Corps may wish to control changes in current wetlands usage as part of a comprehensive Corps plan to control a wide variety of waters in the United States.  Note also that, as William Rodgers states at page 326 of his Environmental Law hornbook, "the Corps of Engineers itself is far and away the leading dredger in the nation."

{Feel free to visit the Web site of the US Army Corps of Engineers.}

(There's a discussion on this site of a John McPhee book describing not only the Corps but also a law professor connected to amici curiae on both sides of this case.  Visit this discussion.}

Note also that asking the question, "What does the Corps want?" may miss some of the point, given the role of the EPA in the process.

Section 404(a) grants permitting authority to the Corps of Engineers: "The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites."  

{There's a little bit of background even to this apparently straight-forward provision.  Section 301(a) of the Clean Water Act prohibits "the discharge of any pollutant by any person" except in compliance with the Act, and section 502(12) defines "pollutant" to include "dredged spoil" ... discharged into water."  In combination with section 404(a), those two sections thus make it clear that the Secretary must issue a permit if a discharge is to be legal.  And section 404(d) makes it clear who "the Secretary" is by stating: "The term 'Secretary' as used in this section means the Secretary of the Army, acting through the Chief of Engineers."}

While section 404(a) gives  initial permitting authority to the Corps, section 404(c) provides the EPA with what is in effect a veto over the permit:

"The Administrator is authorized to prohibit [permitted activity] whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas "

{It is section 101(d), by the way, that defines "the Administrator" as the Administrator of the Environmental Protection Agency.   (Thanks to Xinh Luu of the Law Library for tracking this down.)  Note also, for what little it's worth given the relative predilections of Corps and Agency, that the Corps' denial of a permit is not subject to being overridden by the EPA.}

So the motivations not only of the Corps but also of the EPA may well be important in determining why the Corps adopted the particular regulation that it did.  The Corps may, for example, have sought broad regulatory authority to signal EPA that the Corps was relatively serious about wetlands preservation, in hopes of convincing the EPA to direct its attentions elsewhere.  Or the Corps may have sought broad authority as part of a long-run strategy to convince even environmentalist members of Congress that the Corps could be trusted to make the proper decisions on dredge-and-fill permits without EPA oversight.   (Note that HR 3256 deletes the EPA's veto over the Corps' decisions on section 404 permits where Type C wetlands are involved.  See the section-by-section analysis of HR 3256's treatment of Section 803(b).)

Visit the home page of the Environmental Protection Agency.

Of course, as you probably know, agencies don't typically represent themselves in liitigation, but are rather defended by the Department of Justice (DoJ).   The Office of the Solicitor General within DoJ typically has authority whether to take an appeal from a verdict unfavorable to the United States, while some other part of DoJ is typically responsible for the earlier phases of the litigation--adding yet more complexity to any motivational analysis once actual litigation, as opposed simply to the formulation of a rule, is at issue.

Visit the home page of the Department of Justice,

the home page of the Office of the Solicitor General,

or a page describing the functions of the Office of the Solicitor General.

Return to the Riverside Bayview Homes materials home page.

Return to the Re-Authorizing the Clean Water Act home page.

Return to the Environmental Drafting and Negotiating course's home page.

For corrections, comments, and questions, please e-mail John Setear.

This page was last updated on 03/10/99.