United States v. Riverside Bayview Homes
Primary Discussion Question 3
In light of the Courts opinion in this case, what lands do the Corps regulations include within the section 404 permitting scheme?
In the third sentence of the first paragraph of Part 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.
As discussed in more detail in Secondary Discussion Question 2, the Court does not challenge, and in fact appears to validate, this portion of the Corps' regulations.
The Court continues the passage above with the following sentence:
"More importantly for present purposes, the Corps construed the Act to cover all 'freshwater wetlands' that were adjacent to other covered waters." 474 U.S. at 124.
In the second sentence of section A of Part IV of the opinion, the Court states:
"[O]ur review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act[,] for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as 'waters.'" 474 U.S. at 131.
The Court expressly concludes, later in section A of Part IV, that this exercise of jurisdiction by the Corps is in fact reasonable. Id. at 134-35.
Presumably the Corps' jurisdiction over wetlands that are both adjacent to and regularly flooded by hydrographic features is reasonable a fortiorari. All wetlands adjacent to the waters of the United States are thus fair game for the Corps' jurisdiction for section 404 permits.
And, as the Court tells us on page 124 that the Corps tell us:
" '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 CFR ß 323.2(c) (1978)."
Combining the definition of "the waters of the United States" with the definition of "wetlands" (and the inclusion of all adjacent wetlands), one can then state:
The Corps may reasonably exercise jurisdiction over all land 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, so long as that land is adjacent to actually navigable waters, or tributaries of such waters, or interstate waters and their tributaries, or nonnavigable intrastate waters whose use or misuse could affect interstate commerce.
Whether the opinion also supports the inclusion of isolated (that is, non-adjacent) wetlands within the Corps' jurisdiction is the subject of Primary Discussion Question 4.
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This page was last updated on 03/08/99.