UNITED STATES, Petitioner

v.

RIVERSIDE BAYVIEW HOMES, INC., et al.

 

Certiorari to the United States Court of Appeals for the Sixth Circuit

No. 84-701.

Supreme Court of the United States

Argued Oct. 16, 1985.

Decided Dec. 4, 1985.

Syllabus [FN*]

 

The Clean Water Act prohibits any discharge of dredged or fill materials into "navigable waters"—defined as the "waters of the United States"—unless authorized by a permit issued by the Army Corps of Engineers (Corps). Construing the Act to cover all "freshwater wetlands" that are adjacent to other covered waters, the Corps issued a regulation defining such wetlands as "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." {Discussion Question} After respondent Riverside Bayview Homes, Inc. (hereafter respondent), began placing fill materials on its property near the shores of Lake St. Clair, Michigan, the Corps filed suit in Federal District Court to enjoin respondent from filling its property without the Corps’ permission. Finding that respondent’s property was characterized by the presence of vegetation requiring saturated soil conditions for growth, that the source of such soil conditions was ground water, and that the wetland on the property was adjacent to a body of navigable water, the District Court held that the property was wetland subject to the Corps’ permit authority. The Court of Appeals reversed, construing the Corps’ regulation to exclude from the category of adjacent wetlands—and hence from that of "waters of the United States"—wetlands that are not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court took the view that the Corps’ authority under the Act and its implementing regulations must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment. Under this construction, it was held that respondent’s property was not within the Corps’ jurisdiction, because its semi-aquatic characteristics were not the result of frequent flooding by the nearby navigable waters, and that therefore respondent was free to fill the property without obtaining a permit.

Held:

1. The Court of Appeals erred in concluding that a narrow reading of the Corps’ regulatory jurisdiction over wetlands was necessary to avoid a taking problem. Neither the imposition of the permit requirement *122 itself nor the denial of a permit necessarily constitutes a taking. And the Tucker Act is available to provide compensation for takings that may result from the Corps’ exercise of jurisdiction over wetlands. Pp. 126-129.

2. The District Court’s findings are not clearly erroneous and plainly bring respondent’s property within the category of wetlands and thus of the "waters of the United States" as defined by the regulation in question. Pp. 129-131.

3. The language, policies, and history of the Clean Water Act compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of material into wetlands adjacent to other "waters of the United States." Pp. 131-139.

729 F.2d 391 (CA6 1984), reversed.

 

WHITE, J., delivered the opinion for a unanimous Court. {Discussion Question}

Kathryn A. Oberly argued the cause for the United States. With her on the briefs were former Solicitor General Lee, Acting Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Claiborne, and Anne S. Almy.

Edgar B. Washburn argued the cause for respondents. With him on the brief was Richard K. Gienapp.[FN**]

 

*123

Justice WHITE delivered the opinion of the Court.

This case presents the question whether the Clean Water Act (CWA), 33 U.S.C. 1251 et seq., together with certain regulations promulgated under its authority by the Army Corps of Engineers, authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries.

 

I

The relevant provisions of the Clean Water Act originated in the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, and have remained essentially unchanged since that time. Under 301 and 502 of the Act, 33 U.S.C. 1311 and 1362, any discharge of dredged or fill materials into "navigable waters"—defined as the "waters of the United States"—is forbidden unless authorized by a permit issued by the Corps of Engineers pursuant to 404, 33 U.S.C. 1344.  [FN1] After initially construing the Act to cover only waters navigable in fact, in 1975 the Corps issued interim final regulations redefining "the waters of the United States" to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed.Reg. 31320 *124 (1975). More importantly for present purposes, the Corps construed the Act to cover all "freshwater wetlands" that were adjacent to other covered waters. A "freshwater wetland" was defined as an area that is "periodically inundated" and is "normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." 33 CFR 209.120(d)(2)(h) (1976). In 1977, the Corps refined its definition of wetlands by eliminating the reference to periodic inundation and making other minor changes. The 1977 definition read as follows:

"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. Wetlands generally include swamps, marshes, bogs and similar areas." 33 CFR 323.2(c) (1978).

In 1982, the 1977 regulations were replaced by substantively identical regulations that remain in force today. See 33 CFR 323.2 (1985). [FN2] {Note: Footnote 2 contains a Discussion Question.}

Respondent Riverside Bayview Homes, Inc. (hereafter respondent), owns 80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan.  {Discussion Question}  In 1976, respondent began to place fill materials on its property as part of its preparations for construction of a housing development. The Corps of Engineers, believing that the property was an "adjacent wetland" under the 1975 regulation defining "waters of the United States," filed suit in the United States District Court for the Eastern District of Michigan, seeking to enjoin respondent from filling the property without the permission of the Corps.

*125

The District Court held that the portion of respondent’s property lying below 575.5 feet above sea level was a covered wetland and enjoined respondent from filling it without a permit. Civ. No. 77-70041 (Feb. 24, 1977) (App. to Pet. for Cert. 22a); Civ. No. 77-70041 (June 21, 1979) (App. to Pet. for Cert. 32a). Respondent appealed, and the Court of Appeals remanded for consideration of the effect of the intervening 1977 amendments to the regulation. 615 F.2d 1363 (1980). On remand, the District Court again held the property to be a wetland subject to the Corps’ permit authority. Civ. No. 77-70041 (May 10, 1981) (App. to Pet. for Cert. 42a).

Respondent again appealed, and the Sixth Circuit reversed. 729 F.2d 391 (1984). The court construed the Corps’ regulation to exclude from the category of adjacent wetlands—and hence from that of "waters of the United States"—wetlands that were not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court adopted this construction of the regulation because, in its view, a broader definition of wetlands might result in the taking of private property without just compensation. The court also expressed its doubt that Congress, in granting the Corps jurisdiction to regulate the filling of "navigable waters," intended to allow regulation of wetlands that were not the result of flooding by navigable waters. [FN3] Under the court’s reading of the regulation, respondent’s property was not within the Corps’ jurisdiction, because its semiaquatic characteristics were not the result of frequent flooding by the nearby navigable waters. Respondent was therefore free to fill the property without obtaining a permit.

*126

We granted certiorari to consider the proper interpretation of the Corps’ regulation defining "waters of the United States" and the scope of the Corps’ jurisdiction under the Clean Water Act, both of which were called into question by the Sixth Circuit’s ruling. 469 U.S. 1206 (1985). We now reverse.


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