United States v. Riverside Bayview Homes

Secondary Discussion Question 5

Footnote 2, on page 124 of the opinion, states in its entirety:

"The regulations [of the Corps] also cover certain wetlands not necessarily adjacent to other waters.  See 33 CFR 323.2(a)(2) and (3) (1985).  These provisions are not now before us."

There are, of course, all sorts of provisions not before the Court in this case. Why does the Court mention—only to say nothing about—these provisions in particular?

In both footnote 2 and footnote 8, the Court notes that it is not called upon to address the question of whether the Corps may require permits for activities connected with "certain wetlands not necessarily adjacent to other waters" (in footnote 2) or "wetlands that are not adjacent to bodies of open water" (in footnote 8). (The Court cites the same regulatory provisions in both footnotes.)

Generally, these footnotes are examples of a rhetorically intriguing phenomenon: the Court notes that it is not addressing something, and then, quite consistently, goes on not to address it. The interesting thing is that there are of course millions of issues not before a court in any given case. This case is not about free speech, the quartering of troops in private residences, the scope of the Clean Air Act, or whether animals in wetlands that look, walk, and sound like aquatic waterfowl are actually aquatic waterfowl. Yet the Court does not strew footnotes through the opinion noting these things that the opinion is not about.

Presumably, the Court chooses to say that it is not addressing the wetlands described in footnotes 2 and 8 because you might otherwise think that it is addressing those wetlands, especially when the Court wants to be able to write freely about the particular situation that it is facing without worrying too much about how the language chosen in the instant case might be applied to resolve the unaddressed situation. Such caution might make particular sense when the Court suspects, or even knows, that the unaddressed situation is an especially controversial one.

The wetlands described in footnotes 2 and 8 are so-called "isolated wetlands"--isolated, in this instance, from other surface waters. The core of the Corps of Engineer's regulatory authority is over the navigable waters of the United States. The Clean Water Act clearly allows the regulation of some additional waters. (See Discussion Question 9(b).) The limit of those additional waters is unclear.

There is a certain intuitive appeal, however, in imagining that the limit of the waters of the United States, and thus of the Corps' jurisdiction, must end at the edge of some body of water connected to the core of the Corps' authority--that is, at the edge of a body of water connected on the surface to bodies of water in turn connected on the surface to navigable waters. Think of this as the "tiny-fish test": a tiny fish starts out swimming in navigable waters, and then swims out into some non-navigable waters (non-navigable unless you're a tiny fish, that is), and then eventually, no matter how tiny it is, has to stop. Surely, goes this intuition, that stopping point must also indicate that the jurisdiction of the Corps has run out.

Isolated wetlands, as described in either footnote 2 or footnote 8, fail the tiny-fish test.  So, presumably, footnotes 2 and 8 are there to let you know that the Court is giving at least enough voice to this intuition to note that it is not in this case deciding that wetlands that are "isolated" in this way are within the ambit of the section 404 scheme.

Note, by the way, that there are some problems with this intuition. The tiny-fish test assumes that the relevant bodies of water must be connected by surface waters, but bodies of water can also be connected by ground waters. (Ground water is sub-surface water; that is, ground water is actually underground water.) Ground-water connections, from a hydrological standpoint, can be just as meaningful as surface-water connections. You can't float your boat in ground water, but the bodies of water connected by ground water are all affected by changes in any of those bodies of water. And the navigational aspect of the float-your-boat test is clearly not the only kind of water regulated by the Act. (See, again, Discussion Question 9(b).) Indeed, the very regulations at issue in this case base their definition of wetlands on the possibility that either surface or ground waters can make for wetlands: "The term wetlands means 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." 33 C.F.R. 323.2(c) (1978).

Of course, the fact that there are some problems with the tiny-fish intution doesn't make the Court wrong for writing footnotes 2 and 8.  Maybe this intuition should decide the jurisidictional limits of "the waters of the United States," and maybe it shouldn't.  The Court presumably simply wants you to know that there may be something behind the intuition and so the Court clarifies that it is not in this opinion contradicting that intuition.

In 1997, by the way, the 4th Circuit held that Congress did not intend to include isolated wetlands within "the waters of the United States."  See United States v. Wilson, 133 F. 3d 251 (4th Cir. 1997).  No court had previously addressed the issue directly, and the Wilson court relied crucially for its decision on United States v. Lopez, 514 U.S. 549 (1995), a recent decision of the Supreme Court that may produce a wholesale revision of Commerce Clause jurisprudence--and a case that, almost certainly, no one would have foreseen at the time of Riverside Bavyview Homes

So perhaps the Supreme Court's footnotes 2 and 8 in Riverside Bayview Homes show the deep wisdom of the Court: there proved to be no need to decide the issue for another dozen years after Riverside Bayview Homes, after all, and those dozen years saw important shifts in the relevant law.

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 03/08/99.