FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321.

 

FN ** Briefs of amici curiae urging reversal were filed for the National Wildlife Federation et al. by Jerry Jackson, Frank J. Kelley, Attorney General of Michigan, and Louis Caruso, Solicitor General; and for the State of California et al. by John K. Van de Kamp, Attorney General of California, N. Gregory Taylor and Theodora Berger, Assistant Attorneys General, and Steven H. Kaufmann and David W. Hamilton, Deputy Attorneys General, Joseph I. Lieberman, Attorney General of Connecticut, Michael A. Lilly, Attorney General of Hawaii, Neil F. Hartigan, Attorney General of Illinois, and Jill Wine-Banks, Solicitor General, William J. Guste, Jr., Attorney General of Louisiana, Stephen H. Sachs, Attorney General of Maryland, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Mike Greely, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, Paul Bardacke, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Arlene Violet, Attorney General of Rhode Island, W.J. Michael Cody, Attorney General of Tennessee, Jeffrey L. Amestoy, Attorney General of Vermont, Charlie Brown, Attorney General of West Virginia, and Bronson C. La Follette, Attorney General of Wisconsin.

Briefs of amici curiae urging affirmance were filed for the American Petroleum Institute by Stark Ritchie and James K. Jackson; for the Citizens of Chincoteague for a Reasonable Wetlands Policy by Richard R. Nageotte; for the Mid-Atlantic Developers Association by Kenneth D. McPherson; and for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and Sam Kazman.

R. Sarah Compton and Robin S. Conrad filed a brief for the Chamber of Commerce of the United States as amicus curiae.

{Discussion Question}

 

FN1. With respect to certain waters, the Corps’ authority may be transferred to States that have devised federally approved permit programs. CWA 404(g), as added, 91 Stat. 1600, 33 U.S.C. 1344(g). Absent such an approved program, the Corps retains jurisdiction under 404 over all "waters of the United States."

FN2. The regulations 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. {Discussion Question}

FN3. In denying the Government’s petition for rehearing, the panel reiterated somewhat more strongly its belief that the Corps’ construction of its regulation was "overbroad and inconsistent with the language of the Act." 729 F.2d, at 401

FN4. Even were the Court of Appeals correct in concluding that a narrowing construction of the regulation is necessary to avoid takings of property through the application of the permit requirement, the construction adopted—which requires a showing of frequent flooding before property may be classified as a wetland—is hardly tailored to the supposed difficulty. Whether the denial of a permit would constitute a taking in any given case would depend upon the effect of the denial on the owner’s ability to put the property to productive use. Whether the property was frequently flooded would have no particular bearing on this question, for overbroad regulation of even completely submerged property may constitute a taking. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164 (1979). Indeed, it may be more likely that denying a permit to fill frequently flooded property will prevent economically viable use of the property than denying a permit to fill property that is wet but not flooded. Of course, by excluding a large chunk of the Nation’s wetlands from the regulatory definition, the Court of Appeals’ construction might tend to limit the gross number of takings that the permit program would otherwise entail; but the construction adopted still bears an insufficiently precise relationship with the problem it seeks to avoid.

FN5. United States v. Security Industrial Bank, 459 U.S. 70 (1982), in which we adopted a narrowing construction of a statute to avoid a taking difficulty, is not to the contrary. In that case, the problem was that there was a substantial argument that retroactive application of a particular provision of the Bankruptcy Code would in every case constitute a taking; the solution was to avoid the difficulty by construing the statute to apply only prospectively. Such an approach is sensible where it appears that there is an identifiable class of cases in which application of a statute will necessarily constitute a taking. As we have observed, this is not such a case: there is no identifiable set of instances in which mere application of the permit requirement will necessarily or even probably constitute a taking. The approach of adopting a limiting construction is thus unwarranted.

FN6. Because the Corps has now denied respondent a permit to fill its property, respondent may well have a ripe claim that a taking has occurred. On the record before us, however, we have no basis for evaluating this claim, because no evidence has been introduced that bears on the question of the extent to which denial of a permit to fill this property will prevent economically viable uses of the property or frustrate reasonable investment-backed expectations. In any event, this lawsuit is not the proper forum for resolving such a dispute: if the Corps has indeed effectively taken respondent’s property, respondent’s proper course is not to resist the Corps’ suit for enforcement by denying that the regulation covers the property, but to initiate a suit for compensation in the Claims Court. In so stating, of course, we do not rule that respondent will be entitled to compensation for any temporary denial of use of its property should the Corps ultimately relent and allow it to be filled. We have not yet resolved the question whether compensation is a constitutionally mandated remedy for "temporary regulatory takings," see Williamson County Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), and this case provides no occasion for deciding the issue.

FN7. The Court of Appeals seems also to have rested its frequent-flooding requirement on the language in the regulation stating that wetlands encompass those areas that "under normal circumstances do support" aquatic or semi-aquatic vegetation. In the preamble to the final regulation, the Corps explained that this language was intended in part to exclude areas characterized by the "abnormal presence of aquatic vegetation in a non-aquatic area." 42 Fed.Reg. 37128 (1977). Apparently, the Court of Appeals concluded that the growth of wetlands vegetation in soils saturated by ground water rather than flooded by waters emanating from an adjacent navigable water or its tributaries was "abnormal" within the meaning of the preamble. This interpretation is untenable in light of the explicit statements in both the regulation and its preamble that areas saturated by ground water can fall within the category of wetlands. It would be nonsensical for the Corps to define wetlands to include such areas and then in the same sentence exclude them on the ground that the presence of wetland vegetation in such areas was abnormal. Evidently, the Corps had something else in mind when it referred to "abnormal" growth of wetlands vegetation—namely, the aberrational presence of such vegetation in dry, upland areas.

FN8. We are not called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water, see 33 CFR 323.2(a)(2) and (3) (1985), and we do not express any opinion on that question.

FN9. Of course, it may well be that not every adjacent wetland is of great importance to the environment of adjoining bodies of water. But the existence of such cases does not seriously undermine the Corps’ decision to define all adjacent wetlands as "waters." If it is reasonable for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem, its definition can stand. That the definition may include some wetlands that are not significantly intertwined with the ecosystem of adjacent waterways is of little moment, for where it appears that a wetland covered by the Corps’ definition is in fact lacking in importance to the aquatic environment—or where its importance is outweighed by other values—the Corps may always allow development of the wetland for other uses simply by issuing a permit. See 33 CFR 320.4(b)(4) (1985).

FN10. 123 Cong.Rec. 39209 (1977); see also id., at 39210 (statement of Sen. Wallop); id., at 39196 (statement of Sen. Randolph); id., at 38950 (statement of Rep. Murphy); id., at 38994 (statement of Rep. Ambro).

FN11. To be sure, 404(g)(1) does not conclusively determine the construction to be placed on the use of the term "waters" elsewhere in the Act (particularly in 502(7), which contains the relevant definition of "navigable waters"); however, in light of the fact that the various provisions of the Act should be read in pari materia, it does at least suggest strongly that the term "waters" as used in the Act does not necessarily exclude "wetlands."