United States v. Riverside Bayview Homes

Secondary Discussion Question 2

Is Section IV of the opinion the only place at which the Court implicitly or explicitly exercises deference to the actions of an administrative agency?


Section IV clearly involves a deference question, as Primary Discussion Question 1 discusses at length.  Arguably, however, section IV is not the only part of the opinion where the Court defers to the Corps.

In the first third sentence of the first paragraph of section I of the opinion, the Court notes:

"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 (1975)." 474 U.S. at 123-24.

Here, the Court implicitly defers to the Corps in two ways. 

First, the Court does not challenge the right of the Corps to change its own regulations.  There are in fact some procedural requirements that attach to such changes, but the Court raises no questions about these. 

Second, the Corps' interim final regulations of 1975 "redefin[ed]" the phrase, "the waters of the United States," in a substantive way that the Court never challenges.  Before the 1975 interim final regulations, according to the Court, the Corps considered "the waters of the United States" to include only actually navigable waters (sometimes called waters "navigable in fact").  After the 1975 interim final regulations, however, the Corps included tributaries of navigable waters (regardless of whether the tributaries themselves were navigable), interstate waters and their tributaries (regardless of whether either those waters or their tributaries were navigable), and any intrastate waters that could affect interstate commerce (regardless of whether these intrastate waters were navigable, and regardless of whether these intrastate waters actually did affect interstate commerce).  This is quite an expansion of the Corps' jursidiction, but the Court appears simply to accept it without question, thus implicitly  demonstrating a high degree of deference.

It is of course possible that the Court's silence about these matters stems from the fact that some other court case conclusively establishes that these portions of the Corps' 1975 interim final regulations are, insofar as they bear upon wetlands regulation, authorized by the Clean Water Act.  The Court does not cite such a case, however.  

The Court does discuss, in section B of Part IV, what one should make for definitional purposes of various actions by Congress in 1977.  A bill passed by the House

"would have limited the Corps’ authority under 404 to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters). ... Proponents of a more limited 404 jurisdiction contended that the Corps’ assertion of jurisdiction over wetlands and other nonnavigable 'waters' had far exceeded what Congress had intended in enacting 404."  474 U.S. at 136 (emphasis added).    

The Senate bill contained no such limitations, however, and the Conference Committee adopted the Senate's position.  From this evidence, the Court draws some support for the notion that Congress acquiesced in the Corps' (expansive) definition of "waters of the United States" for purposes of the section 404 permitting scheme.  Id. at 137.  Presumably, if the congressional acquiescence were clear, that would suffice.  The Court's general conclusion on the matter is appropriately judicious:

"Although we are chary of attributing significance to Congress’ failure to act, a refusal by Congress to overrule an agency’s construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress’ attention through legislation specifically designed to supplant it."  Id.


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This page was last updated on 03/10/99.