United States v. Riverside Bayview Homes

Primary Discussion Question 1

What degree of deference does the Court give the Corps in Riverside Bayview Homes?

In Part IV of the opinion, the Court finally takes up this question directly, having determined (in Part II) that takings-clause jurisprudence is irrelevant to interpreting the statute and having established (in Part III) that the Corps' regulation as drafted clearly covered the petitioner's lands. The Court's discussion in Part IV asks--and answers--a classic question of deference: does the Corps' regulation exceed its statutory authority?  The question involves deference, of course, because the Court does not simply interpret the statute by itself and then declare that interpretation binding, but rather states that the Corps may choose any interpretation within some permissible range of interpretations.  The greater the range, the greater the deference to the administrative agency.

One approach to the deference question in this case might be to look more carefully at Chevron, in light of the fact that the Court prominently cites Chevron, the fact that the word "Chevron" has come over the years to stand for the federal courts' standard for deference to agencies (as in, "the Chevron standard" or "this is a Chevron question"),  and  the fact that Chevron was decided less than eighteen months before Riverside Bayview Homes.  (Chevron was decided on June 25, 1984, while Riverside Bayview Homes was decided on December 4, 1985.) 

We won't take that approach, however.  Instead, we'll look only at what the Court has to say about deference in this case.

There are three passages especially relevant to the degree of deference granted by the Court to the Corps' interpretation of the Clean Water Act.  The first such passage begins Section A of Part IV of the opinion:

"An agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress. Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125 (1985); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845 (1984). Accordingly, our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act[,] for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as 'waters.'" 474 U.S. at 131.  {Go to this passage in the opinion.}

The second such passage follows the Court's discussion of Congress' broad purposes when it first passed the Clean Water Act (including its definition of "waters of the United States") and of the Corps' statements concerning the important role of wetlands in serving those broad purposes:

"We cannot say that the Corps’ conclusion that adjacent wetlands are inseparably bound up with the 'waters' of the United States—based as it is on the Corps’ and EPA’s technical expertise—is unreasonable. In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act."  474 U.S. at 134.  {Go to this passage in the opinion.}

The third such passage follows the Court's more specific discussion of that same hydrologic role, but as played by adjacent wetlands not inundated by waters of the United States:

"In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water. Again, we cannot say that the Corps’ judgment on these matters is unreasonable, and we therefore conclude that a definition of 'waters of the United States' encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act."  474 U.S. at 135.  {Go to this passage in the opinion.}

If we glean from those passages some plausibly crucial phrases, we get a relatively short list of descriptions of permissible agency action:

  1. reasonable and not in conflict with the expressed intent of Congress {1st sentence of 1st passage}
  2. reasonable, in light of the language, policies, and legislative history of the Act {2nd sentence of 1st passage}
  3. reasonable based on the agency's technical expertise {1st sentence of 2nd passage}
  4. cannot be said to be unreasonable {from 1st sentence of 2nd passage or from 2nd sentence of 3rd passage}

The Court uses these different phrases rather casually--that is, the Court neither states that it is using different words to set forth "the same" standard, nor states that it is using different words to set forth a variety of different standards.  

Perhaps the Court is emphasizing different aspects of some single standard, depending upon the particular context in which the Court makes each statement.  The first passage, which emphasizes Congress, occurs at the beginning of Part IV, when the Court is framing the issue in the abstract.  The passage highlighting the agency's technical expertise, in contrast, occurs later, after the Court has discussed a number of particular aspects of the statute as well as some findings made by the agency.  If you were confident that the Court believed that it had in mind a single standard throughout, and if you were willing to treat the phrase "cannot be said to be unreasonable" as equivalent to the one-word phrase "reasonable," then you can aggregate all four of the gleaned standards listed above into a single standard of deference:

An agency's interpretation of a statute will stand if that interpretation is reasonable in light of (a) the language, policies, and legislative history of that statute; and (b) the agency's technical expertise.

For an analysis of the four gleaned standards that instead emphasizes the potential differences among them, and even the possibility that they cannot be aggregated into one standard, please go here.

Continuing along under the assumption that the single, bold-faced standard above captures the Court's view on when agencies are entitled to deference in their statutory intepretations, one may note a few things.

First, the agency's interpretation of the statute just has to be reasonable (in light of the various factors).  The agency does not need to reach the same interpretation of the statute that the Court would reach if the Court were to determine the statute's meaning de novo.  (One would therefore presumably rather be an agency than a district court, at least if you'd rather not have your decisions overturned by appellate courts and at least as to matters of law.) 

Second, the word "reasonable" covers a broad range of behavior, as you may recall from your first-year torts class.  In this case, for example, we know that the Corps' decision to include adjacent wetlands within the section 404 permitting scheme is reasonable, and it doesn't seem a big leap to imagine that the Corps' decision not to include such wetlands in the permitting scheme would also have been reasonable.  So in this case, anything that the Corps did with the adjacent-wetlands issue would be reasonable, which is another way of saying that the "reasonable" standard excludes very little (i.e., no) outcomes as possible.

Third, "reasonable" is also a fairly vague term, as you may also recall from your first-year torts class.  Contrast such terms as "inconsistent with prior agency action," "utterly ungrounded in the language or legislative history of the act," or "unaccompanied by a statement of the agency's reasons."

Fourth, the agency may justify its interpretaton as reasonable not only by referring to the express language of the statute, but also by referring to the legislative history of the statute and the policies behind the statute. 

Fifth, the agency may use its own expertise to justify its interpretation.   Indeed, in this particular case, the Court brings up technical expertise but does nothing to persuade the reader of that expertise beyond the implicit correspondence between the subject matter under discussion (the hydrological impact of wetlands on navigable waters) and the general subject matter with which the Corps and EPA are concerned (hydrology and ecology, respectively).  There is no discussion of the expertise of any person employed or consulted by the Corps or EPA, nor any discussion of whether hydrology is an abstruse or accessible science, nor any discussion of why the Corps and EPA should be treated with equal deference (as the Court implicitly does by simply citing both agencies' rationales for their various rules).

For all of these reasons, the single standard for deference listed above gives the agency a great deal of room within which its interpretation is secure from judicial modification.  The standard need not match the Court's own interpretation of the statute; the word "reasonable" is both broad and vague; the agency may refer to a wide variety of texts associated with the legislative process in justifying its interpreation; and the agency receives further deference as a result of expertise that is apparently assumed rather than proven.

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This page was last updated on 03/16/99.