United States v. Riverside Bayview Homes

Primary Discussion Question 4

Are isolated wetlands permissibly part of the section 404 permitting scheme?

In footnotes 2 and 8 of the Court's opinion, the Court is at some pains to state that its opinion does not resolve the question of whether isolated wetlands--that is, non-adjacent wetlands--are permissibly part of the section 404 permitting scheme.   See Secondary Discussion Question 5.  The short answer to the question posed at the top of this page, therefore, is "The Court didn't answer that question."  Professors don't like short answers, however, so a longer (and of course richer and subtler) answer follows.

Two of the passages especially relevant to judging the Court's standard of deference are also relevant to the question of whether isolated wetlands can fall within the Corps' juridiction under section 404.  After discussing Congress' broad purposes when it first passed the Clean Water Act (including its definition of "waters of the United States"), the Court says:

"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.

The Court also discusses the specific hydrologic role 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.

It is difficult to take from these passages any message that gives the Corps jurisdiction over adjacent wetlands but bars the Corps from obtaining jurisdiction over isolated wetlands.  The breadth of federal regulatory authority, and the difficulty of defnining precise bounds to regulable waters, remain with respect to isolated wetlands.   The Corps could make an "ecological judgment" about isolated wetlands that tracks the rationale sufficient to support jurisdiction over adjacent wetlands: the Corps might state that isolated wetlands "may function as integral parts of the aquatic environment" even when the wetlands are not connected on the surface to other waters of the United States.  Since this case has held that the wetlands need not have its origin in moisture that comes from waters of the United States, the surface disconnection between isolated wetlands and those waters plainly waters of the United States is also no bar to finding isolated wetlands within the Corps' jurisdiction.

So the Court, in holding that adjacent wetlands are within the Corps' jurisdiction, uses a test that seems also suited to holding that isolated wetlands are within the Corps' jurisdiction--so long as the Corps can generate whatever evidence is necessary to support the conclusion of ecological integrity.  (The Court simply states that the Corps made that determination here within the bounds of its expertise, so we don't know much about what sort of evidence is/would be necessary with respect to adjacent/isolated wetlands.)   Thus, despite the Court's statement that it is not deciding the issue of isolated wetlands, one can certainly imagine that someone attempting to show that the Corps had jurisdiction, for section 404 purposes, over isolated wetlands would find Riverside Bayview Homes quite useful in the endeavor.

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This page was last updated on 03/09/99.