Wetlands Law:
A Course Source
Fourth Edition

Stephen M. Johnson
CALI eLangdell® Press

Wetlands Law: A Course Source
Fourth Edition

Stephen M. Johnson
Professor of Law
Mercer University School of Law

CALI eLangdell Press 2021

Notices
This is the fourth edition of this casebook, updated August
http://elangdell.cali.org/ for the latest version and for revision history.

2021.

Visit

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i

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iii

Summary of Contents
Notices .............................................................................................................................. i
About CALI eLangdell Press ............................................................................................iii
Summary of Contents ..................................................................................................... iv
Table of Contents ............................................................................................................ vi
Acknowledgments ...........................................................................................................xii
About the Author ............................................................................................................ xiii
Preface ...........................................................................................................................xiv
Table of Cases ............................................................................................................. xviii
Audio/Video Materials ................................................................................................. xxvii
Problems and Exercises .............................................................................................. xxxi
Chapter 1 ......................................................................................................................... 1
The Science .................................................................................................................. 1
Chapter 2 ....................................................................................................................... 26
The History of Regulation ........................................................................................... 26
Chapter 3 ....................................................................................................................... 47
Administrative Law ..................................................................................................... 47
Chapter 4 ....................................................................................................................... 74
Regulation of Wetlands and Waters of the United States .......................................... 74
Chapter 5 ..................................................................................................................... 160
Additions and Discharges ......................................................................................... 160
Chapter 6 ..................................................................................................................... 240
Section 404 Permits ................................................................................................. 240
Chapter 7 ..................................................................................................................... 289
Mitigation .................................................................................................................. 289
Chapter 8 ..................................................................................................................... 314
EPA’s Role in Permitting and EPA’s Veto Authority ................................................. 314
Chapter 9 ..................................................................................................................... 336
States’ Roles and State Programs ........................................................................... 336
Chapter 10 ................................................................................................................... 354
iv

Administrative Appeals, Judicial Review and Enforcement ...................................... 354
Chapter 11 ................................................................................................................... 404
Regulatory Takings ................................................................................................... 404

v

Table of Contents
Summary of Contents
Notices
About CALI eLangdell Press
Acknowledgments
About the Author
Preface
Table of Cases
Audio/Video Materials
Problems and Exercises
Chapter 1
I.

The Science

Wetland Values and Functions
A.
B.
C.
D.
E.
F.
G.
H.
I.

Protection of Habitat/Protection of Species and Biodiversity
Flood Control
Erosion Prevention and Shoreline Protection/Stabilization
Water Quality Protection
Groundwater Replenishment
Atmospheric Maintenance
Wetland Products
Recreation, Aesthetics, Education and Research
Protection of Cultural Values
vi

II.

Definition and Types of Wetlands
A.
Definitions
B.
Types of Wetlands
1.
Cowardin Classification
2.
Marshes, Swamps, Bogs and Fens
3.
Hydrogeomorphic (HGM) Classification

III.

Status and Trends

IV.

Wetland Delineation (section includes a Research Problem)
Chapter Quiz

Chapter 2

The History of Regulation

I.

Early Development Laws

II.

A Slow Shift to Conservation

III.

Toward Comprehensive Federal Regulation (section includes a Research
Problem)

IV.

Conservation Programs and Agricultural Programs

V.

International Wetland Protection - U.S. Role (section includes a Research
Problem)

VI.

The Agencies that Regulate Wetlands (section includes a Research Problem and
Hypothetical)
A.
Corps of Engineers
B.
Environmental Protection Agency
C.
U.S. Fish and Wildlife Service
D.
Natural Resources Conservation Service
E.
U.S. Department of Justice, Environment and Natural Resources Division
Chapter Quiz

Chapter 3

Primer on Administrative Law

I.

Nature of Administrative Agencies

II.

Limits on Agency Authority
A.
Statutory Limits
B.
Constitutional Limits
C.
Limits Imposed by Other Branches
vii

III.

Procedural Requirements for Agency Action
A.
Rulemaking Procedures (includes a Research and Drafting Problem)
B.
Adjudication Procedures (includes a Hypothetical)

IV.

Judicial Review of Agency Action
A.
Prerequisites for a Judicial Challenge
B.
Standards for Judicial Review (includes a Hypothetical)
Chapter Quiz

Chapter 4

Regulation of Wetlands and Waters of the
United States

I.

Activities Regulated Under the Clean Water Act
A.
The Rivers and Harbors Act
B.
The Clean Water Act
C.
Identifying and Delineating Wetlands (includes a Research Problem and
Hypothetical)
Section Quiz

II.

Waters of the United States
A.
The Corps’ Initial Interpretation
B.
Expanded Jurisdiction, Adjacent Wetlands and Riverside-Bayview Homes
C.
Isolated Waters and Wetlands
D.
Repercussions of SWANCC - Isolated Waters, Non-Navigable Tributaries
and Their Adjacent Wetlands
1.
Regulatory Response
2.
Legislative Response
3.
Judicial Response
E.
Post-Rapanos Developments
1.
2008 Guidance
2.
Judicial Interpretation of Rapanos
3.
2011 Guidance and 2014 Proposed Rulemaking (includes a
Hypothetical)
Chapter Quiz

Chapter 5
I.

Additions and Discharges

Regulated Activities (includes a Hypothetical)
A.
Landclearing
B.
Ditching, Draining, and Dredging
C.
Sidecasting
viii

D.
Deep Ripping (includes a Hypothetical)
E.
Competing Permit Programs - 404 v 402 - What is Fill Material?
E.
Discharges Through Groundwater
Chapter Quiz

Chapter 6

Section 404 Permits

I.

Permit Exemptions

II.

Nationwide and Other General Permits
A.
Issuance of General Permits
B.
Conditions of General Permits (includes a Research Problem)
C.
Similar in Nature / Minimal Effects
D.
Combining Permits
Section Quiz

III.

Individual Permits
A.
The Process
1.
Application, Public Notice and Comment
2.
Coordination with Other Agencies
3.
Hearings and Decision-Making (includes a Research Problem)
B.
The Standards for Permit Review
1.
Public Interest Review
2.
Section 404(b)(1) Guidelines (includes a Hypothetical)
Chapter Quiz

Chapter 7

Mitigation

I.

Types of Mitigation

II.

Legal Authority for Mitigation

III.

Mitigation Sequencing and Permit Conditions

IV.

Amount and Type of Mitigation Required
A.
No Net Loss
B.
On-Site and In-Kind
C.
Ratios and Timing

V.

Mitigation Banking
A.
Benefits of Mitigation Banking
B.
Historical Development
C.
Nuts and Bolts of Mitigation Banking (includes a Research Problem)
ix

VI.

In Lieu Fee Programs
A.
Benefits and Concerns
B.
History and Regulation (includes a Hypothetical)
Chapter Quiz

Chapter 8

EPA’s Role and EPA Vetoes

I.

EPA’s Role in the Section 404 Permitting Process

II.

EPA’s Veto Authority
A.
Authority and Procedures
1.
Section 404(q) and Elevation of Permit Disputes (includes a
Research Problem)
2.
Section 404(c) Procedures (includes a Research Problem)
B.
Timing of the Veto
C.
Standards for the Veto (includes a Drafting Exercise)
Chapter Quiz

Chapter 9

States’ Roles and State Programs

I.

State Programs
A.
Federal/State Relationship (includes a Research Problem)
B.
A Survey of State Programs (includes a Research Problem)

II.

State Assumption of the Section 404 Program and State Programmatic General
Permits
A.
Assumption of the 404 Permitting Program
B.
State Programmatic General Permits (includes a Research Problem)

III.

401 Certification (includes a Research Problem)

IV.

Coastal Zone Management Act Certification (includes a Hypothetical)
Chapter Quiz

Chapter 10
I.

Administrative Appeals, Enforcement &
Judicial Review

Administrative Appeals and Judicial Review
A.
Administrative Appeals of Corps’ Decisions
1.
Reviewable Actions
2.
Review Process (includes a Hypothetical and Research Problem)
x

B.

II.

Judicial Review
1.
Reviewable Actions includes a Hypothetical)
2.
Limits on Judicial Review
3.
Standards of Review and Remedies

Enforcement
A.
Administrative Enforcement
1.
Administrative Compliance Orders and Cease and Desist Letters
2.
Administrative Penalty Orders
B.
Judicial Enforcement - Civil and Criminal
1.
Civil Enforcement (includes a Research Problem)
2.
Criminal Enforcement (includes 2 Hypotheticals)
C.
Citizen Suits
1.
Suits Allowed
2.
Jurisdiction, Venue, and Relief Available
3.
Limits on Citizen Suits (includes a Hypothetical and Drafting
Exercise)
Chapter Quiz

Chapter 11

Regulatory Takings

I.

Background

II.

Jurisdiction and Timing of Takings Claims (includes a Hypothetical)

III.

The Takings Analysis

IV.

Applying Lucas and Penn Central in the Wetlands Context (includes a
Hypothetical)

V.

Mitigation, Permit Conditions and Exactions

VI.

Other Takings-Related Requirements (includes an Interviewing and Drafting
Exercise)
Chapter Quiz

xi

Acknowledgments
I would like to thank my wife, Anne, and my children, Lyndsey, Keith and Caroline, for
their support and for all of the time that we spent walking, hiking, running, climbing,
paddling and otherwise enjoying the outdoors over the years, which provided the
inspiration for this project. I would also like to thank Mercer Law School for providing me
with a sabbatical and financial support for this project. I owe special thanks to the
colleagues who agreed to be interviewed for this project or hosted those interviews and
to everyone who provided suggestions and comments on drafts of the work. Finally, I
would like to dedicate this project to everyone at CALI and in academia that are working
to create the next generation of e-books.

xii

About the Author
Stephen M. Johnson is a Professor of Law at Mercer University Law School in Macon,
Georgia. He received his J.D. from Villanova University School of Law and an LL.M. in
environmental law from the George Washington University Law School. Prior to teaching,
he served as an attorney for the Bureau of Regulatory Counsel in the Pennsylvania
Department of Environmental Resources (now DEP) and as a trial attorney for the U.S.
Department of Justice, Environment and Natural Resources Division, Environmental
Defense Section, where he worked on wetlands litigation and other environmental
litigation.
He joined the Mercer faculty in 1993 and served as the Associate Dean for Academic
Affairs from 2002-2012. He specializes in Environmental Law, but has also taught Torts,
Statutory Law, Administrative Law, and Dispute Resolution. His scholarship focuses on
wetlands, environmental justice, economics and the environment, technology and the law,
and administrative law. In addition to authoring numerous articles on those topics, he has
edited an American Bar Association book on Wetlands law and has authored a book on
economic approaches to environmental protection. He has also authored several CALI
exercises on wetlands and environmental law and has served on the Board of Directors
of CALI for more than a decade.
While teaching at Mercer, he has been fortunate to teach or visit at Notre Dame Law
School, the University of London and Strathclyde University. In 2004, he taught at the
University of Tokyo and at Waseda University (Tokyo) on a Fulbright grant.

xiii

Preface
Course Source: The Casebook Evolved
You’ll notice that these materials are entitled, Wetlands Law: A Course Source. I chose
the term “course source,” as opposed to casebook or coursebook, to indicate that the
format of these materials is qualitatively different from traditional law school textbooks.
I.

Traditional casebooks and the evolution of casebooks

The law school casebooks that were created in the late 1800's to implement Christopher
Columbus Langdell’s case method of teaching consisted primarily of edited versions of
cases and perhaps a few questions and comments. Casebooks have evolved slowly over
the years. Over time, it became popular to incorporate excerpts from law review articles,
statutes and regulations into the texts in addition to the cases, questions and comments.
Little changed for decades until problem-based books came along, incorporating a wealth
of hypotheticals and problems that allowed students to apply the law that they were
learning from the cases, statutes, and regulations included in the book. Those books
could more precisely be referred to as “coursebooks” than “casebooks,” because they
incorporated more than cases, questions and comments.
After the MacCrate report in the 1990s and the 2007 Carnegie Foundation report, faculty
and book publishers began publishing separate books focusing on skills development
that could be used to supplement traditional casebooks and coursebooks. In a few cases,
books that were not marketed as “skills” books incorporated some skills exercises as well.
Publishers also began marketing “law stories” books that provided a wealth of background
information about a few cases to help bring those cases to life. Those were positive
developments in the evolution of law school teaching materials.
II.

The “Course Source”: The technological evolution of the casebook

Technology can help casebooks and coursebooks evolve into a new format. Several
years ago, publishers began marketing e-books for the law school market. So far, e-books
for law school have not taken full advantage of the medium. A few of the early books were
simply electronic versions of traditional casebooks or coursebooks. Others added a few
hyperlinks to a traditional casebook or coursebook. For the most part, though, the
changes in the format of casebooks and coursebooks in the e-book era have been
modest. Much more is possible. Technology can foster the transformation of the
casebook and the coursebook into the “course source” - a one-stop shop for all of a faculty
member’s teaching resource needs.
xiv

The Carnegie Foundation Report, Educating Lawyers: Preparation for the Profession of
Law, stressed the importance of three apprenticeships in the formation of a lawyer - the
cognitive apprenticeship, the apprenticeship in the forms of expert practice shared by
practitioners, and the apprenticeship of identity and purposes (professionalism). In short,
the report stressed that law schools should be training students in the knowledge, skills,
and values necessary to the legal profession. A “course source,” the next generation of
law teaching materials, can utilize technology to provide resources for training students
in all three apprenticeships. A “course source” recognizes that the three apprenticeships
are interconnected and that a faculty member needs the tools to train students in all three
apprenticeships, rather than assuming that a separate course in legal professionalism or
research and writing will develop the student’s skills and values.
In addition, legal educators have increasingly recognized the importance of formative and
summative assessment, and the American Bar Association’s Standards for Approval of
Law Schools require schools to use both formative and summative assessment in their
curriculum “to measure and improve student learning and to provide meaningful feedback
to students.” A “course source” provides a variety of tools for formative and summative
assessment.
A “course source” also takes advantage of the wealth of materials available online and in
a variety of media formats to incorporate links to content that puts the cases, materials
and disputes in the book in context, to provide a fuller and richer understanding of the
materials.
Further, a “course source” is portable and customizable, since it is distributed through a
Creative Commons license as open source materials. Thus, faculty can pick and choose
the portions of the materials that they find most useful and relevant for their teaching and
distribute those materials to students for free.
A “course source” is available in a variety of formats as an e-book, but most of the content
and links in the book will also be re-purposed as a web-based library of teaching
resources related to the topic of the book.
III.

Wetlands Law: A Course Source

This “course source” on wetlands law implements the vision outlined in the preceding
section. The Wetlands Law Course Source includes resources to train students in all three
apprenticeships. To address the knowledge apprenticeship, the “course source” includes
all of the traditional elements of a casebook or coursebook (cases, commentary, notes
and questions) and includes several hypotheticals and problem exercises that focus on
reinforcing wetlands law. In addition, as one of the many forms of summative and
formative assessment included in the book, every chapter includes one or more CALI
xv

exercise as a “quiz” to reinforce the material covered in the chapter. The course source
also includes links to other CALI exercises on topics related to the material covered in the
book.
To address the skills apprenticeship, the “course source” includes sixteen separate legal
research exercises, several drafting exercises (including exercises that focus on drafting
a FOIA request, drafting comments on a proposed regulation, and drafting a citizen suit
complaint and 60 day notice letter), a negotiation exercise, and an interviewing and
counseling exercise.
To address the values apprenticeship, the “course source” includes several
professionalism scenarios, with questions related to the scenarios.
As noted above, the “course source” also incorporates a wealth of audio/video materials
and external links to bring the cases, disputes and materials in the book to life. For
instance, links are provided to the audio for the oral arguments in most of the principal
cases excerpted in the book. A Google map is included in the book, identifying the location
of the properties involved in all of the principal cases excerpted in the book, so that
students can see the wetlands that were preserved in the cases or the development that
replaced the wetlands. For most of the principal cases that are excerpted in the book,
there are links to decision documents, administrative orders, property maps, pictures,
local media coverage or other background materials. While the principal cases have been
edited, the book includes links to the full unedited versions of all of the principal cases in
the book. Throughout each chapter, there are several “Resource” sections that identify
reports, databases, audio or video materials, government documents, and other materials
that are relevant to the topics covered in the chapter.
The book also links to (1) a series of videos prepared by the Army Corps of Engineers
that describe the wetland delineation process, wetland mitigation, the wetland permitting
process and many other wetland-related issues; (2) videos demonstrating mountaintop
removal mining; and (3) videos outlining the values and functions of wetlands. In addition,
the book contains links to interviews that I conducted regarding a variety of different
wetland issues with attorneys who work with local communities and with the Department
of Justice, the National Wildlife Federation, and the Environmental Council of the States.
Those interviews are posted on YouTube.
Since the “course source” is distributed under a Creative Commons license, it was also
possible to include several pictures of wetlands and activities that take place in wetlands
in the book, as the pictures are available through the Wikimedia Commons for materials
that are distributed under the Creative Commons license. Most of the cases that are cited
in the book, other than cases that are only cited in the excerpts of the principal cases, are
linked to full, unedited opinions that are available online for free through Justia.com.
Further, almost all of the statutes, regulations, reports, databases, and government
xvi

documents in the book are hyperlinked to external sources. The 400 page book includes
almost 1000 links. I hope you will find this “course source” to be a useful and engaging
teaching and learning tool.
The links in the book have also been re-purposed as a web-based library of wetlands
teaching resources, which is accessible at:
http://www.envirolawteachers.com/wetlands-law-a-course-source.html

xvii

Table of Cases
All of the opinion links below, and throughout the book, are links to Justia.com, unless
noted below. The principal cases that are excerpted in the book are indicated in bold
text.
Agins v. City of Tiburon, 447 U.S. 255 (1980)

11

AJA Associates v. U.S. Army Corps of Engineers, 817 F.2d 1070 (3d Cir.
1987)

6

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)

3

Alaska Center for the Environment v. West, 157 F.3d 680 (9th Cir. 1998)

6

Alliance to Save Mattaponi v. United States Army Corps of Engineers,
515 F. Supp. 2d 1 (D.D.C. 2007) (Link to Casetext)

8

Atchafalaya Basinkeeper, et al. v. Chustz, 682 F.3d 356 (5th Cir. 2012)

10

Auer v. Robins, 519 U.S. 452 (1997)

3, 4

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.
1983)

5,10

Baccarat Fremont v. U.S. Army Corps of Engineers, 425 F.3d 1150 (9th
Cir. 2005)

4

Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462
U.S. 87 (1983)

3

Barnhart v. Walton, 535 U.S. 212 (2002)

3

Belle Corp., L.L.C. v. U.S. Army Corps of Engineers, No. 13-30262 (5th
Cir. July 30, 2014) (Link to the court’s website)

10

Bennett v. Spear, 520 U.S. 154,178 (1997) (Link to Cornell’s LII)

10

Bersani v. Robichaud, 850 F.2d 36 (2d Cir. 1988)

6, 8

Borden Ranch Partnership v. United States Army Corps of
Engineers, 261 F.3d 810 (9th Cir. 2001)

5

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)

4

Bowles v. United States, 31 Fed. Cl. 37 (1994)

11

xviii

Buckhannon Board and Care Home, Inc. v. West Virginia Department of
Health and Human Resources, 532 U.S. 598 (2001)

10

Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982)

6

Chevron v. NRDC, 467 U.S. 837 (1984)

3

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897)

11

Christensen v. Harris County, 529 U.S. 576 (2000)

3

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)

3,10

Clarke v. Securities Industry Association, 479 U.S. 388 (1987)

10

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557
U.S. 261 (2009)

5

Community Assn. For Restoration of Environment v. Henry Bosma Dairy,
305 F.3d 943 (9th Cir. 2002) (Link to Law.Resource.Org)

4

County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2019)
Crutchfield v. County of Hanover, Virginia, 325 F.3d 211 (4th Cir. 2003)

6

Deltona Corp. v. United States, 657 F.2d 1184 (Cl. Ct. 1981), cert.
denied, 455 U.S. 1017 (1982)

11

Department of Energy v. Ohio, 503 U.S. 607 (1992) (Link to Cornell’s LII)

10

Dolan v. City of Tigard, 512 U.S. 374 (1994)

11

Ex Parte Young, 209 U.S. 123 (1908)

10

Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d
586 (9th Cir. 2008)

10

First English Evangelical Lutheran Church of Glendale v. County of Los
Angeles, 482 U.S. 304 (1987)

11

Florida Rock Industries v. United States, 45 Fed. Cl. 21 (1999)

11

Florida Rock Industries v. United States, 18 F.3d 1560 (Fed. Cir. 1994),
cert denied 513 U.S. 1109 (1995)

11

Florida Rock Industries v. United States, 21 Cl. Ct. 161 (1990), vacated
on other grounds, 18 F.3d 1560 (Fed. Cir. 1994), cert denied 513 U.S.
1109 (1995)

11

xix

Forest Guardians v. United States Forest Service, 641 F.3d 423 (10th Cir.
2011) (From the court’s website)

10

FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944)

3

Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986)

6,10

Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S.
167 (2000) (Link to Cornell’s LII)

10

Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d
989 (9th Cir. 1993)

6

Fund for Animals v. Rice, 85 F.3d 535, 541-542 (11th Cir. 1996)

6

Golden Gate Audubon Society v. U.S. Army Corps of Engineers, 717 F.
Supp. 1417 (N.D. Cal. 1988)

10

Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004)

6

Grutter v. Bollinger, 539 U.S. 306 (2003)

4

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49
(1987)

10

Hadacheck v. Sebastian, 239 U.S. 394 (1915)

11

Hallstrom v. Tillamook County, 493 U.S. 20 (1989)

10

Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 782 F.3d 994 (8th Cir.
2015)

10

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001)

4

Heckler v. Chaney, 470 U.S. 821 (1985)

10

Hobbs v. United States, 947 F.2d 941 (4th Cir. 1991), cert. denied 504
U.S. 940 (1992)

4

Hoffman Homes, Inc. v. Administrator, United States EPA 975 F.2d 1554
(7th Cir. 1992)

4

Hoffman Homes, Inc. v. Administrator, United States EPA, 961 F.2d 1310
(7th Cir. 1992)

4

In re Environmental Protection Agency, 808 F.3d 804 (6th Cir. 2015)

4

In re Needham, 354 F.3d 340 (5th Cir. 2003)

4

xx

James City County v. Environmental Protection Agency, 12 F.3d 1330 (4th
Cir. 1993)

8

James City County v. U.S. Environmental Protection Agency, 955 F.2d
254 (4th Cir. 1992)

6, 8

Jentgen v. United States, 657 F.2d 1210 (Cl. Ct. 1981), cert. denied, 455
U.S. 1017 (1982)

11

Just v. Marinette County, 201 N.W.2d. 761 (Wis. 1972)

11

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928)

3

Kelly v. United States, 203 F.3d 519 (7th Cir. 2000)

10

Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir.
2003)

5

Kentucky Riverkeeper, Inc. v. Rowelette, 714 F.3d 402 (6th Cir. 2013)
(From the court’s website)

6

Koontz v. Saint John’s River Water Management District, 133 S. Ct.
2586 (2013)

11

Leovy v. United States, 177 U.S. 621 (1900)

2

Leslie Salt v. United States, 896 F.2d 354 (9th Cir. 1990), cert. denied,
486 U.S. 1126 (1991)

4

Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377, 1387 (2014)

10

Lingle v. Chevron, U.S.A., 544 U.S. 528 (2005) (Link to Cornell’s LII)

11

Lost Tree Village Corporation v. United States, 43 E.L.R. 20012 (Fed.
Cir. 2013)

11

Lost Tree Village Corp. v. United States, No. 08-117L (Fed. Cl.
03/14/2014)

11

Lost Tree Village Corp. v. United States, 787 F.3d 1111 (Fed. Cir. 2015)
Louisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044 (5th Cir.
1985)

6

Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994)

11

Loveladies Harbor v. United States, 21 Cl. Ct. 153 (1990)

11

xxi

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

11

Lucas v. South Carolina Coastal Council, 424 S.E.2d 424, 23 E.L.R.
20297 (S.C. 1992) (From Duke Law School)

11

Marks v. United States, 430 U.S. 188 (1977)

4

McDonald et al v. County of Yolo, 477 U.S. 340 (1986)

11

McQueen v. South Carolina Coastal Council, 580 S.E.2d 116 (S.C. 2003)

11

Middlesex County Sewerage Authority v. National Sea Clammers
Association, 453 U.S. 1 (1981)

10

Mingo Logan Coal Company v. U.S. Environmental Protection
Agency, 714 F.3d 608 (D.C. Cir. 2013) (From the court’s website)

8

Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile
Ins. Co., 463 U.S. 29 (1983)

3

Municipality of Anchorage v. United States, 21 ELR 20119 (D. Alaska
1990), aff’d 980 F.2d 1320 (9th Cir. 1992)

7

Murr v. Wisconsin, 582 U.S. ___ (2017)

11

Murray Energy Corp. v. United States Department of Defense (In re:
U.S.D.O.D.), 817 F.3d 261 (6th Cir. 2016)

4

National Assoc. of Mfrs. v. Dept of Defense, 138 S. Ct. 617 (2018)

4,10

National Broadcasting Co. v. United States, 319 U.S. 190 (1943)

3

National Cable & Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967 (2005)

4

National Mining Association v. McCarthy, No. 12-5310 (D.C. Cir. July 11,
2014).

5

National Mining Association v. U.S. Army Corps of Engineers, 145
F.3d 1399 (D.C. Cir. 1998)

5

National Wildlife Federation v. Whistler, 27 F.3d 1341 (8th Cir. 1994) (Link
to OpenJurist)

6

Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685
(D.D.C. 1975)

4

Natural Resources Defense Council v. California Department of

10

xxii

Transportation, 96 F.3d 420 (9th Cir. 1996)
Nollan v. California Coastal Commission, 483 U.S. 825 (1987)

11

North Dakota v. U.S. Environmental Protection Agency, 127 F. Supp. 3d
1047 (D. N.D. 2015)

4

Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th
Cir. 2007)

4

Office of Personnel Management v. Richmond, 496 U.S. 414 (1990)

4

Ohio Valley Environmental Coalition v. Aracoma Coal Company, 556 F.3d
1777 (4th Cir. 2009) (From EPA’s website)

5

Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (4th Cir.
2005)

6

Orleans Audubon Society v. Lee, 742 F.2d 901 (5th Cir. 1984)

10

Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001)

11

Penn Central Transportation Company v. New York City, 438 U.S. 104
(1978)

11

Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922)

11

Permit Elevation, Plantation Landing Resort (From EPA’s website)
(Administrative decision)

6

Precon Development Corp. v. Corps, 633 F.3d 278 (4th Cir. 2011)

4

Preserve Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of
Engineers, 87 F.3d 1242 (11th Cir. 1996)

8,10

Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d
1179 (3d Cir. 1995)

10

PUD No. 1 of Jefferson County v. Washington Department of
Environmental Quality, 511 U.S. 700 (1994)

9

Rapanos v. United States, 547 U.S. 715 (2006)

4

Resource Investments, Inc. v. United States, 85 Fed. Cl. 447 (2009) (Link
to Findlaw)

11

Sackett v. EPA, 132 S. Ct. 1367 (2012)

4,10

Sasser v. Administrator, 990 F.2d 127 (4th Cir. 1993)

10

xxiii

Save Our Community v. EPA, 971 F.2d 1155 (5th Cir. 1992) (Link to the
court’s website)

5

Save Ourselves v. U.S. Army Corps of Engineers, 958 F.2d 659 (5th Cir.
1992)

10

Save Our Wetlands v. Sands, 711 F.2d 634 (5th Cir. 1983)

5

Securities and Exchange Commission v. Chenery, 332 U.S. 194 (1947)

3

Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80
(1943)

3,10

Seminole Tribe v. Florida, 517 U.S. 44 (1996)

10

Sierra Club v. U.S. Environmental Protection Agency, 268 F.3d 898 (9th
Cir. 2001)

10

Sierra Club v. U.S. Army Corps of Engineers, 508 F.3d 1332 (11th Cir.
2007) (Link to Findlaw)

6

Shoreline Associates v. Marsh, 555 F. Supp. 169 (D. Md. 1983), aff’d 725
F.2d 677 (4th Cir. 1984) (Link to Google Scholar)

6

Skidmore v. Swift, 323 U.S. 134 (1944)

3

Solid Waste Agency of Northern Cook County, v. United States Army
Corps of Engineers, et al., 531 U.S. 159 (2001) (Link to Mercer Law)

4

Stoddard v. Western Carolina Regional Sewer Authority, 784 F.2d 1200
(4th Cir. 1986)

10

Sylvester v. U.S. Army Corps of Engineers, 871 F.2d 817 (9th Cir. 1989),
revised at 884 F.2d 394 (9th Cir. 1989)

6

Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993)

11

Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency,
535 U.S. 302 (2002) (Link to Legal Information Institute)

11

Texas Mun. Power Agency v. EPA, 836 F.2d 1482 (5th Cir. 1988)

4

Tull v. United States, 481 U.S. 412 (1987)

10

The Daniel Ball, 77 U.S. 557 (1870)

4

United States v. Bailey, 571 F.3d 791 (8th Cir. 2009) (Link to Google
Scholar)

4

xxiv

United States v. Banks, 115 F.3d 916 (11th Cir. 1997)

10

United States v. Cundiff, 555 F.3d 200 (6th Cir. 2009) (Link to Google
Scholar)

4

United States v. Deaton, 209 F.3d 331 (4th Cir. 2000)

5

United States v. Deaton, 332 F.3d 698 (4th Cir. 2003)

5

United States v. Donovan, 661 F.3d 174 (3d Cir. 2011)

4

United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006)

4

United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995)

10

United States v. Huebner, 752 F.2d 1235 (7th Cir. 1985)

6

United States v. Johnson, 467 F.3d 56 (1st Cir. 2006) (Link to Google
Scholar)

4

United States v. Lucas, 516 F.3d 316 (5th Cir. 2008) (Link to the court’s
website)

4

United States v. Mead Corp., 533 U.S. 218 (2001)

3, 5

United States v. Nova Scotia Food Products Corp., 568 F.2d 240 (2d Cir.
1977)

3

United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)

1, 4, 10,
11

United States v. Robison, 505 F.3d 1208 (11th Cir. 2007) (Link to the
court’s website)

4

United States v. Rueth Development Co., 335 F.3d 598 (7th Cir. 2003)

4

United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994)

10

xxv

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997)

4, 5, 10

U. S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016)

4, 10

Vieux Carre Property Owners v. Brown, 948 F.2d 1436 (5th Cir. 1991)

10

Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001)

3

Williamson County Regional Planning v. Hamilton Bank, 473 U.S. 172
(1985)

11

Yakus v. United States, 321 U.S. 414 (1944)

3

http://law.justia.com/cases/federal/appellate-courts/F3/332/698/550477/Zabel v.
Tabb, 430 F.2d 199 (5th Cir. 1970), cert. denied 401 U.S. 910 (1971)

2

xxvi

Audio/Video Materials
Interviews:

Alexandra Dapolito Dunn, Director and General Counsel, Environmental
Council of the States
Chapter 7:

discusses State wetland mitigation programs, in
contrast to the federal program

Chapter 9:

discusses regional and other variations in the attitudes
that States take toward wetlands regulation;
discusses whether many States operate their own
State wetland permitting programs and generally
describes the State programs;
discusses the most effective tools that States are using
to protect wetlands;
discusses the greatest impediments to wetland
protection in the States;
discusses the Association of Wetlands Managers and
the role they play in wetland protection; impediments to
assumption by States of the 404 permitting program;
and
discusses the way in which States use the 401
certification process to protect wetlands.

Jan Goldman Carter, Senior Manager and Counsel, National Wildlife
Federation Wetlands and Water Resources Program:
Chapter 1:

discusses the value of a scientific background for a
career in environmental law;
discusses the judicial and legislative understanding of,
and receptivity to, scientific issues involving wetlands.

Chapter 4:

discusses the importance of the Clean Water Act’s
“waters of the United States” language as a foundation
xxvii

for wetlands protection.
Chapter 5:

discusses the Tulloch litigation (in which she was
involved) and the aftermath of the litigation.

Chapter 9:

discusses the variety of State wetland protection
programs and the political pressure on State programs.

Chapter 10: discusses the mission and structure of the National
Wildlife Federation, and work that the organization
does to protect wetlands; and
discusses the role that litigation plays in protecting
wetlands, and the manner in which the National Wildlife
Federation chooses litigation priorities.
Patrick McGinley, Charles H. Haden Professor of Law, West Virginia
University College of Law
Chapter 5:

discusses the history of mountaintop removal mining;
discusses valley fills and their environmental impacts;
discusses other impacts of mountaintop mining;
discusses benefits to communities from mountaintop
mining;
discusses the environmental justice impacts of
mountaintop removal mining; and
discusses representing communities affected by
mountaintop mining

Stephen Samuels, U.S. Department of Justice, Environment and Natural
Resources Division, Environmental Defense Section
Chapter 1:

discusses the challenge of influencing courts and
legislatures with scientific information on the values
and functions of wetlands.

Chapter 2:

discusses the division of responsibility for wetlands
litigation within the Environment and Natural
xxviii

Resources Division;
discusses how the Environmental Defense Section
represents multiple federal agencies that may take
conflicting positions on issues in litigation; and
discusses the role that DOJ's Environment and Natural
Resources Division plays in developing regulations
and legislation, focusing specifically on legislative and
regulatory initiatives to clarify the scope of the "waters
of the U.S."
Chapter 4:

discusses the Supreme Court cases interpreting the
breadth of the Clean Water Act jurisdiction over "waters
of the United States", the interpretive difficulties the
decisions have created, and the legislative and
regulatory efforts to clarify the breadth of jurisdiction.

Chapter 10: explains how federal wetland enforcement priorities
are set.
Map:

Google Map identifying the location of the properties at issue in all of the
cases excerpted in the course source - Chapters 3, 4, 5, 6, 8, 10, and 11.

Oral
Arguments: Borden Ranch Partnership v. United States Army Corps of Engineers (link
to the Oyez Project) - Chapter 5
Chevron v. NRDC (link to the Oyez Project) - Chapter 3
Coeur Alaska v. S.E. Alaska Conservation Council (link to the Oyez Project)
- Chapter 5
Koontz v. St. John’s River Water Management (link to the Oyez Project) Chapter 11
Lost Tree Village Corp. v. United States (link to the court’s website) Chapter 11
Lucas v. South Carolina Coastal Council (link to the Oyez Project) - Chapter
11

xxix

Mingo Logan Coal Company v. U.S. Environmental Protection Agency Oral
Argument (link to the court’s website) - Chapter 8
Murr v. Wisconsin (link to the Oyez Project) – Chapter 11
Rapanos v. United States (link to the Oyez Project) - Chapter 4
Sackett v. EPA (link to the Oyez Project) - Chapter 10
Solid Waste Agency of Northern Cook County v. Corps (link to the Oyez
Project) - Chapter 4
U.S. v. Riverside Bayview Homes (link to the Oyez Project) - Chapter 4
Videos:

Corps of Engineers videos on Delineating Wetlands (Chapter 1); 404
permitting (Chapter 6); 404(b)(1) Guidelines (Chapter 6); Alternatives
Analysis (Chapter 6); Mitigation (Chapter 8); Administrative Appeals
(Chapter 10)
Deep Ripping Videos on Facebook and YouTube - Chapter 5
EPA Video - Wetlands and Wonders - Reconnecting Children with Nearby
Nature - Chapter 1
Liquidity: The Value of Wetlands - Chapter 1
Mountaintop removal mining videos from Appalachian Voices, Discovery,
and Smithsonian - Chapter 5
USDA Video regarding the history of the Conservation Reserve Program Chapter 2
Wetlands Values and Functions Videos from Conservation Media,
GreenTreks Network (Pennsylvania’s wetlands), Delaware DNREC, and
Oklahoma Gardening - Chapter 1

xxx

Problems and Exercises
Chapter 1
Research Problem:

Finding agency reports online; Finding agency
guidance documents online

CALI Chapter Quiz

Chapter 2
Research Problem:
Research Problem:
Professionalism Hypothetical:
CALI Chapter Quiz

Finding international materials online
Finding agency contacts - offices and phone numbers
Model Rule 1.1

Chapter 3
Research Problem:
Drafting Exercise:
Hypothetical:
Hypothetical:

Finding rules using Regulations.gov; Finding
information in the rulemaking dockets on
Regulations.gov
Drafting a comment on a proposed rulemaking
Rulemaking v. adjudication; Formal v. informal
procedures
Standards of review for agency decision-making
(Chevron, Skidmore, etc.)

CALI Chapter Quiz

Chapter 4
Research Problem:
Professionalism Hypothetical:
Hypothetical:
CALI Section Quiz
CALI Chapter Quiz

Finding jurisdictional determinations online
Model Rule 4.2
Waters of the United States

Chapter 5
Professionalism Hypothetical:
Hypothetical:

Model Rule 1.6
Regulated Activities
xxxi

CALI Chapter Quiz

Chapter 6
Research Problem:
Research Problem:
Hypothetical:
CALI Section Quiz
CALI Chapter Quiz

Finding and interpreting nationwide and regional
general permits
Finding individual permits and pending individual
permits
Alternatives Analysis

Chapter 7
Research Problem:
Professionalism Hypothetical:
CALI Chapter Quiz

Finding mitigation banking data in RIBITS
Model Rules 1.16 and 2.1

Chapter 8
Research Problem:
Research Problem:
Drafting Exercise:
CALI Chapter Quiz

Finding and interpreting EPA elevation decisions
Finding and interpreting EPA veto documents
Drafting a FOIA request

Chapter 9
Research Problem:
Research Problem:
Research Problem:
Research Problem:

Finding and interpreting state laws limiting authority
over wetlands
Finding and interpreting state laws regarding
jurisdiction over wetlands
Finding and interpreting state programmatic general
permits
Finding and interpreting state laws regarding water
quality standards

CALI Chapter Quiz

Chapter 10
Hypothetical:
Research Problem:
Hypothetical:

Administrative Appeals
Finding administrative appeals
Judicial Review of Administrative Actions
xxxii

Research Problem:
Hypothetical:
Hypothetical:
Hypothetical:
Drafting Exercise:

Finding and interpreting consent decrees
Criminal Enforcement
Choice of Enforcement Tool
Citizen Suits
Drafting a Complaint and 60 day notice in a Citizen
Suit

CALI Chapter Quiz

Chapter 11
Hypothetical:
Timing of Takings Claims
Hypothetical:
Takings Analysis
Interviewing & Drafting Exercise: Draft questions to evaluate the strength of a client’s
takings claim
CALI Chapter Quiz

xxxiii

Chapter 1
The Science
I.

Wetland Values and Functions

This is a book about wetlands, and the laws that protect wetlands. It seems only natural,
therefore, to begin the book by looking at the reasons that there are laws to protect
wetlands. This first chapter begins with a focus on the values and functions of wetlands.
In the 19th century, wetlands were considered “a menace, the cause of malaria, and a
hindrance to land development.” See U.S. Congress, Office of Technology Assessment,
OTA-O-206, Wetlands: Their Use and Regulation 37 (Mar. 1984). Attitudes towards
wetlands have changed greatly since then as scientists and the public have discovered
the societal benefits and important ecological functions of wetlands. The United Nations
Millennium Ecosystem Assessment determined that the ecosystem services provided
globally by wetlands in 1997 were worth 15 trillion dollars. See Ramsar Convention on
Wetlands, Ramsar Convention Secretariat, Wetland Ecosystem Services - An
Introduction. Consequently, wetlands frequently provide far greater economic benefits as
part of healthy functioning ecosystems than they would provide after being converted to
other uses. Id. The “ecosystem services” and other values and functions provided by
wetlands include:

•

Provision of Habitat / Protection of Species and Biodiversity

•

Flood Control

•

Erosion Prevention and Shoreline Stabilization / Protection

•

Water Quality Protection (removal of sediments, nutrients and toxics)

•

Groundwater Replenishment

•

Climate Regulation

•

Wetland Products (timber, food products, etc.)

•

Recreation, Aesthetics, and Education

•

Protection of Cultural Values
1

Not every wetland provides all of the functions outlined above. The services that each
wetland provides will vary based on the type of wetland, its size and location. See Ramsar
Convention on Wetlands, Ramsar Convention Secretariat, Wetland Ecosystem Services
- An Introduction. However, the services that each wetland provides generally benefit
much broader segments of the public than would be benefitted by the conversion of the
wetlands to unsustainable uses. Id. It is not always easy to get that message across,
though, as, in the past, there has frequently been a lack of concrete economic data
available to demonstrate the monetary value of preserving wetlands in their natural state.
Id. In addition, some of the values provided by wetlands, such as recreation, aesthetics,
education, research and protection of cultural values, are difficult to quantify in dollar
figures. Nevertheless, methods for assessing the value of ecosystem services are
maturing and a recent study demonstrated that coastal wetlands in the United States
provide storm protection worth over 23 billion dollars per year, so that the conversion of
one hectare (about 2 ½ acres) of coastal wetlands would eliminate about 33,000 dollars
worth of storm protection per year. Id; see also Institute for European Environmental
Policy, The Economics of Ecosystems and Biodiversity for Water and Wetlands 19-33
(2013).
Many of the values and functions provided by wetlands, such as water quality protection,
flood control, shoreline stabilization, atmospheric maintenance, and groundwater
replenishment, are tied to the integral role of wetlands within the hydrologic cycle.
Wetlands receive, store and release water physically through ground water and surface
water, and biologically through transpiration by vegetation. See U.S. Environmental
Protection Agency, Watershed Academy Web, Distance Learning Modules on Watershed
Management, Wetland Functions and Values 5 [hereinafter “Watershed Academy Web”];
see also Institute for European Environmental Policy, The Economics of Ecosystems and
Biodiversity for Water and Wetlands 5-6 (2013). Wetlands are frequently referred to as
“nature’s kidneys.” See Association of State Wetlands Managers, The Compleat
Wetlander: Wetlands - Nature’s Kidneys and Other Specialized Services (Feb. 23, 2010).
The United States Supreme Court recognized the central role that wetlands play in the
hydrologic cycle and discussed the importance of protecting wetlands in order to protect
ecosystems in United States v. Riverside Bayview Homes, 474 U.S. 121, 132-133 (1985).
The diverse values and functions that wetlands provide are discussed in more detail in
the following sections.

2

A.

Provision of Habitat /
Species and Biodiversity

Protection

of

Wetlands are sometimes referred to as “nurseries of life”
because they provide the essential elements of habitat food, water, and shelter - for thousands of species of
aquatic and terrestrial plants and animals. See U.S.
Environmental Protection Agency, Wetlands Overview.
Almost 50% of endangered animal species in the United Photo 1 By Muffet
http://commons.wikimedia.org/wiki/File:
States depend on wetlands for survival and viability, even Blue_heron.jpg [CC-BY-2.0 ]
though wetlands only occupy about 3.5% of the land area
in the U.S. See William J. Mitsch, James G. Gosselink, Wetlands 344 (4th ed. John Wiley
& Sons, 2007). More generally, according to Fish and Wildlife Service estimates, 43% of
all of the federally listed endangered or threatened species rely on wetlands either directly
or indirectly. See Watershed Academy Web at 7. Not surprisingly, therefore, the
Secretariat for the Ramsar Convention on Wetlands has referred to wetlands as
“reservoirs of biodiversity.” See Ramsar Convention on Wetlands, Ramsar Convention
Secretariat, Wetland Ecosystem Services - An Introduction. Globally, coastal wetlands
“contain some of the most biologically diverse and productive communities in the world.”
Id.
Wetlands are not just habitat for endangered or threatened species, though. About 80%
of the breeding bird population in the United States rely on wetlands for their primary
habitat. See Mitsch & Gosselink, supra at 336. Between 1950 and 1994, for instance, the
coastal wetlands in the Chesapeake Bay Region supported an annual average of 79,000
black ducks and 14,000 pintails on their southernly migration. See Watershed Academy
Web at 7. Two thirds of the 10-12 million migratory waterfowl in the continental United
States reproduce in the prairie pothole wetlands of the Midwest. See U.S. Environmental
Protection Agency, Wetlands Overview. Many animals, including beavers and wood
ducks, and plants, including wild rice and cattails, rely almost exclusively on wetlands. Id.
at 6.

3

Wetlands provide rich habitats for several reasons. In many
wetlands, the shallow water, high levels of inorganic nutrients,
and high rates of productivity of new plant biomass combine to
provide ideal conditions for the development of organisms at the
bottom of the food chain. See U.S. Environmental Protection
Agency, America’s Wetlands: Our Vital Link Between Land and
Water 6-7 (2003) [hereinafter “America’s Wetlands”]. In addition,
the plant biomass in the wetlands is increasingly enriched as it
breaks down due to bacterial, fungal and protozoan activity. Id. at
6. The biomass provides food for small invertebrates and fish,
which, in turn, provide food for larger amphibians, reptiles, fish,
Photo 2
birds and mammals. Id. The high levels of biomass and
https://commons.wikime
invertebrate life make wetlands an important nursery area for
dia.org/wiki/File:Cattails
many
fish and shellfish. See Watershed Academy Web at 7.
_in_the_Everglades.jpg
Further, many species of fish rely on wetlands because they
[Public Domain]
require areas of shallow water for breeding and feeding, or for
some other portion of their life cycle. Id. at 4; see also William A. Niering, Wetlands 32
(Chanticleer Press, 1985).

B.

Flood Control

Wetlands help prevent or minimize flooding and flood damage by storing and slowing
water. See America’s Wetlands, at 8. Like sponges, wetlands absorb and slowly release
rain, snow melt, groundwater and surface water, including flood waters. Id. By doing so,
they reduce the speed and volume of
runoff entering streams and rivers. See
Ramsar Convention on Wetlands,
Ramsar
Convention
Secretariat,
Wetland Ecosystem Services - Flood
Control [hereinafter “Ramsar - Flood
Control”] The trees and vegetation in
wetlands can also slow the speed of
flood waters and distribute them over
the floodplain. See America’s Wetlands,
at 8. By storing and slowing water,
wetlands can reduce flood heights and
reduce erosion downstream. See Photo 3 By LSUSoccerbum
Watershed Academy Web, at 9. The http://commons.wikipedia.org/wiki/File:Clearview_Metair
ie_08_30_2005.jpg [Public Domain]
flood control benefits provided by
wetlands can be particularly important near urban areas where there are significant
volumes of runoff from pavement and buildings. Id. Regardless of where the wetlands are

4

located, though, by reducing flooding and flood damages, wetlands provide economic
benefits, by reducing property damages, and protect health, safety and welfare. Id. at 10.
When wetlands within a floodplain are converted to other uses, peak river discharges
following snowmelt or heavy rains that used to dissipate broadly across the floodplain are
concentrated in a smaller area, leading to deeper and more damaging floods. See
Ramsar - Flood Control. Prior to significant filling and draining, the bottomland hardwood
riparian wetlands of the Mississippi River used to store almost 60 days of floodwater. See
America’s Wetlands, at 8-9. Now, they only store about 12 days of floodwater. Id.
Engineered flood control measures, such as dredging or the construction of levees, are
significantly more expensive than preserving or restoring wetlands. Id. A study in
Minnesota determined that it would cost 1.5 million dollars per year to replace the flood
control provided by 5000 acres of drained wetlands. See Watershed Academy Web, at
10.
Coastal wetlands can play a significant role in protecting communities from storm surges
and conversion of those wetlands reduces those natural defenses. See Ramsar - Flood
Control. When Hurricane Katrina inundated 80% of the City of New Orleans in 2005, many
experts suggested that the destruction of significant amounts of coastal wetlands in the
decades prior to the storm, and the artificial constriction of the Mississippi River’s
floodplains contributed to the magnitude of the flooding. Id. Protection of coastal wetlands
is particularly important in light of the fact that 39% of the U.S. population lived in coastal
shoreline counties in 2010, even though those counties represented less than 10% of the
land area of the United States (excluding Alaska). See U.S. Department of Commerce,
National Oceanic and Atmospheric Administration, NOAA’s State of the Coast: National
Coastal Population Survey. In addition, the population in those counties increased 39%
between 1970 and 2010. Id.

C.

Erosion Prevention and Shoreline Protection/Stabilization

Just as wetlands prevent or reduce
flooding by storing and slowing water
flows, they also protect shorelines and
stream banks from erosion. See
America’s Wetlands, at 9. The roots of
wetland plants stabilize the soil and the
plants absorb wave energy and break
up currents. Id. Erosion prevention can
provide significant benefits, as coastal
erosion causes 500 million dollars in
Photo 4 USFWS
coastal property loss each year,
http://commons.wikimedia.org/wiki/File:Coastal_wetlands. including damage to structures and
jpg

5

conversion of land to aquatic areas. See U.S. Department of Commerce, National
Oceanic and Atmospheric Administration, Coastal Hazards. A study by the Heinz Center
in 2000 estimated that erosion may destroy one quarter of the houses located within 500
feet of the shoreline by the middle of this century. Id. The federal government spends
about 150 million dollars each year on erosion control measures. Id. In recognition of the
erosion prevention benefits of wetlands, some states are restoring coastal wetlands to
provide buffers from storm surges. See America’s Wetlands, at 9.

D.

Water Quality Protection

Wetlands play a vital role in protecting and
improving water quality by removing sediments,
organic and sometimes toxic pollutants, and
excess nutrients from water and storing and/or
processing those materials. See America’s
Wetlands, at 8. Wetland soils and vegetation
capture and retain nutrients in water that might
otherwise cause dangerous levels of nutrients in
groundwater that serves as a drinking water source
or cause eutrophication of downstream water
bodies. See Ramsar Convention on Photo 5 USDA/ NRCS Photo – Martin Pena
Wetlands, Ramsar Convention Secretariat, http://commons.wikimedia.org/wiki/File:NRCSID89001__Idaho_(4105)(NRCS_Photo_Gallery).jpg
Wetland Ecosystem Services - Water
Purification [hereinafter “Ramsar - Water Purification”]. Eutrophication of water bodies
causes massive growth in algae, which depletes oxygen in the water and blocks sunlight
which is essential for many of the plants and animals in the water. Id.
Just as wetlands remove and store nutrients, wetland plants trap suspended sediments
that could otherwise smother downstream spawning areas, insects and plants. See
America’s Wetlands, at 8. In addition, increased turbidity in streams caused by excess
sediments can lead to increased water temperatures, reduced light penetration and plant
growth, and reduced visibility in the stream, making it more difficult for fish to find prey.
See North Carolina State University, Department of Biological and Agricultural
Engineering, Soil in Our Streams, Stream Notes, Vol. 1, No. 1. Some wetland animals,
such as oysters in the Chesapeake Bay, can even help to filter out nutrients and
sediments from water that flows through wetlands. See Ramsar - Water Purification.
Wetland plants also protect water quality by removing and storing organic wastes. See
America’s Wetlands, at 8. There are clear economic benefits associated with this filtering
function, as a 1990 study determined that the Congaree Swamp in South Carolina
removes as much pollution from the water as would be removed by a 5 million dollar
wastewater treatment plant. Id. Similarly, in 1997, the city of New York determined that it

6

could spend less than half as much to protect the city’s water quality by purchasing and
protecting wetlands than it would spend if it constructed new wastewater treatment plants.
See Ramsar - Water Purification. Governments and developers are even constructing
wetlands to remove nutrients or waste from contaminated water. Id.
Some wetland plants can even remove heavy metals and other toxic substances from the
water that flows through wetlands. Id. As a result, wetlands are being constructed to treat
wastewater from mining and other activities, as well as to treat sewage effluent. See
Ramsar Convention on Wetlands, Ramsar Convention Secretariat, Wetland Ecosystem
Services - Sediment and Nutrient Retention and Export.
Although wetlands can provide these water quality protection features, excessive levels
of nutrients, sediments, or pollutants in wetlands can degrade the wetlands and reduce
or eliminate many of the values that they would otherwise provide. See Watershed
Academy Web, at 9.

E.

Groundwater Replenishment

Depending on their location and type, wetlands may maintain stream flow during dry
periods and may replenish groundwater. See America’s Wetlands, at 8. Although some
wetlands have no connection to groundwater, others are located on permeable soils
overlaying aquifers. See Ramsar Convention on Wetlands, Ramsar Convention
Secretariat, Wetland Ecosystem Services - Groundwater Replenishment. In those
wetlands, water can percolate through the soil into the aquifer to recharge the aquifer
when the water table is low. Id. Conversely, when the water table is high, the wetland can
serve as a groundwater discharge zone. Id. Globally, almost 95% of available fresh water
is contained in groundwater aquifers, and one third of the world’s population relies on
groundwater for drinking water. Id. One of the most productive groundwater sources in
the United States is the Floridan aquifer system, which stretches throughout Florida,
southern Georgia, and portions of South Carolina and Alabama. See Watershed
Academy Web, at 9. Wetlands in Florida play an important role in recharging that aquifer,
as a study found that groundwater in a particular area of the aquifer would be reduced by
45% if 80% of a 5 acre Florida cypress swamp in the area was drained. Id.

F.

Climate Regulation

While many of the values and functions of wetlands are tied to water and water quality,
wetlands can also provide climatic benefits. Some wetlands, especially peat bogs, store
large amounts of carbon, functioning as “carbon sinks.” See Ramsar Convention on
Wetlands, Ramsar Convention Secretariat, Wetland Ecosystem Services - Climate
Change Mitigation & Adaptation. By doing so, they help slow the rate of greenhouse gas
emissions that contribute to global climate change. Id. However, when wetlands are
7

converted for development, trees and vegetation are removed and sometimes burned,
releasing the carbon that was stored in the wetlands into the atmosphere. Id. Those
releases may be significant. A recent study indicated that damage to peatlands caused
greenhouse gas emissions equal to 1/10 of the emissions from the worldwide use of fossil
fuels. Id.
Wetlands will be impacted by, and impact society’s response to climate change in several
ways. First, to the extent that climate change results in the predicted sea level rise and
extreme weather events, wetlands will play an important role in adaptation due to the
flood control, erosion prevention, groundwater replenishment, habitat protection, and
water quality protection functions that they can serve. Id. They can only provide those
benefits, though, if they survive. Unfortunately, the United Nations Intergovernmental
Panel on Climate Change (IPCC) cautions that wetlands are among the ecosystems
“most vulnerable to climate change.” Id.

G. Wetland Products
Wetlands may also provide more tangible
economic benefits in the form of products that can
be harvested from them. Cranberries, blueberries,
rice and many other plants are produced in
wetlands. See America’s Wetlands, at 10. Various
medicines can also be extracted from wetland
plants and soils. Id.
Timber is frequently harvested from wetlands, and
there are 55 million acres of wetlands supporting
Photo 6 USDA Photo http://commons.wikimedia.org/wiki/File:Cranberr timber harvesting in the United States. See U.S.
Environmental Protection Agency, EPA-841-R-02y_bog.jpg
001, National Water Quality Inventory, 2000 Report
45 (2002) [hereinafter “2000 National Water Quality Inventory”]. Fish and shellfish are
another wetland “product.” In the southeastern United States, about 96% of the fish and
shellfish that are harvested commercially, and 50% of the fish that are caught by
recreational fishers, rely on estuarine or coastal wetlands. See Watershed Academy Web,
at 11. Nationally, about 75% of the fish and shellfish that are harvested commercially
depend on wetlands for food or habitat. Id. More than 2 billion dollars worth of fish and
shellfish are harvested commercially in the United States every year. Id.
Wetlands provide essential habitat for several other animals that are trapped and sold
commercially, including muskrat, beaver, otter, mink and alligators. Id. at 12. In 2000,
EPA estimated that more than 70 million dollars worth of muskrat pelts were harvested
every year. See 2000 National Water Quality Inventory, at 45.

8

H.

Recreation, Aesthetics, Education and Research

In addition to the values outlined above, wetlands often provide opportunities for
recreation, education and research. EPA estimates that more than half of the adult
population in the United States hunts, fishes, engages in bird-watching or photographs
wildlife, and that they spend about 59.5 billion dollars per year on those activities. See
America’s Wetlands, at 10. A 2011 survey conducted by the Fish and Wildlife Service
found that the annual expenditures had increased to 144.5 billion. See U.S. Department
of the Interior, U.S. Fish and Wildlife Service, and U.S. Department of Commerce, 2011
National Survey of Fishing, Hunting, and Wildlife Associated Recreation 4 (2011). A
significant amount of that hunting, fishing, or wildlife watching takes place in wetlands, as
the natural beauty and diversity of animal and plant life in many wetlands promotes
recreational tourism. See Ramsar Convention on Wetlands, Ramsar Convention
Secretariat, Wetland Ecosystem Services - Recreation & Tourism [hereinafter “Ramsar Recreation and Tourism”]. In EPA’s National Water Quality Inventory report to Congress
in 2000, the agency indicated that “[a]t least $18 billion in economic activity is generated
annually from recreational fishing in coastal wetlands by 17 million Americans.” See 2000
National Water Quality Inventory, at 45.
While hunting, fishing and bird-watching attract many people to wetlands, others visit to
hike, boat, paint, photograph, record, or otherwise appreciate the beauty and aesthetics
of the wetland ecosystems. See America’s Wetlands, at 10. Many of those wetland values
are difficult to capture in purely economic terms.
Wetlands provide rich educational opportunities for students of all ages, ranging from
grammar schools through adult continuing education programs and programs at nature
centers. See Watershed Academy Web, at 13. As EPA notes, wetlands are excellent sites
“to learn about vegetative structure ... and ecological functions ..., natural ecological
processes ..., biodiversity, and plant-animal interactions.” Id.
While wetlands can provide significant recreational and educational opportunities, some
recreational or tourism uses of wetlands could harm wetlands, so wetland managers
frequently must limit recreational and educational uses to specific areas to protect the
wetlands. See Ramsar - Recreation & Tourism.

I.

Protection of Cultural Values

In some cases, wetlands can also be closely tied to the cultural heritage of the
surrounding communities. The songs, music, dance, art, literature, stories and rituals of
an area may be deeply influenced by the wetland ecosystem in which it is located. See
Ramsar Convention on Wetlands, Ramsar Convention Secretariat, The Cultural Heritage
9

of Wetlands: Wetlands, An Inspiration in Art, Literature, Music and Folklore. Like the
aesthetics of wetlands, these values are difficult to measure in purely economic terms,
but are vital to the communities. See Ramsar Convention on Wetlands, Ramsar
Convention Secretariat, Wetland Ecosystem Services: Cultural Values. As the wetlands
disappear, the ties to the land and many of the stories, rituals and traditions of the
communities could disappear as well.

Questions and Comments
1.

If the services that each wetland provides will vary based on the type of wetland
and its size and location, should all wetlands be provided the same level of
protection? Are they provided the same level of protection? Think about those
questions as you read about the standards that the government uses to determine
whether to issue a permit to authorize development in wetlands, the process that
the government uses to determine appropriate mitigation for destruction of
wetlands, the manner in which the government structures its enforcement
programs, the analysis that is used to determine whether government restrictions
on wetlands development constitute a taking, and other issues throughout this
book.

RESOURCES
EPA Video - Wetlands and Wonders - Reconnecting Children with Nearby Nature
EPA’s Watershed Academy - Wetland Values and Functions
EPA - America’s Wetlands
Wetlands: Their Use and Regulation (1984 OTA report)
EPA Watershed Academy Webinars (including wetlands)
Videos on wetland values and functions from Conservation Media, GreenTreks Network
(Pennsylvania’s wetlands), Delaware DNREC, Oklahoma Gardening
Liquidity: The Value of Wetlands - independently produced video
EPA’s Connectivity Study - Connectivity of Wetlands and Streams to Downstream Waters

10

II.

Definition and Types of Wetlands

A.

Definitions

In general terms, wetlands are “lands where saturation with water is the dominant factor
determining the nature of soil development and the types of plant and animal communities
living in the soil and on its surface.” See U.S. Environmental Protection Agency, Wetland
Definitions. That description, which appears on the web site of the Environmental
Protection Agency (EPA), is adapted from a more elaborate definition adopted by the
United States Fish and Wildlife Service, which administers a National Wetlands Inventory,
as part of its “Cowardin” classification system (named for the scientist who developed it).
The Fish and Wildlife Service definition for wetlands is:
lands transitional between terrestrial and aquatic systems where the water table is
usually at or near the surface or the land is covered by shallow water. For purposes
of this classification, wetlands must have one or more of the following three attributes:
(1) at least periodically, the land supports predominantly hydrophytes, (2) the
substrate is predominantly undrained hydric soil, and (3) the substrate is nonsoil and
is saturated with water or covered by shallow water at some time during the growing
season of each year.
See L. Cowardin, et al., U.S. Department of the Interior, Fish and Wildlife Service,
Classification of Wetlands and Deep-Water Habitats of the United States (1979).
EPA and the Army Corps of Engineers have adopted the following conceptually, though
not linguistically, similar definition of wetlands for their regulatory programs:
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.
See 33 C.F.R. § 328.3 (b) (Corps’ regulations); 40 C.F.R. § 230.3(t) (EPA’s regulations).
Although the Fish and Wildlife Service has developed maps of wetlands as part of its
National Wetlands Inventory, the maps are not designed or intended to be used for legal
or regulatory purposes to identify the existence of, or boundaries of, wetlands. See U.S.
Fish and Wildlife Service, National Wetlands Inventory: Frequently Asked Questions.

11

Instead, as outlined in Part IV of this chapter, both the classification of a specific piece of
property as a wetland and the boundaries of the wetland are determined through a
process known as delineation. The delineation process focuses on whether the property
has the soils, vegetation, and hydrology that are typically found in wetlands.

B.

Types of Wetlands

There are many different ways to categorize or classify wetlands. This section begins by
examining the Cowardin classification system developed by the Fish and Wildlife Service,
takes a closer look at four common types of wetlands, and then focuses on the
Hydrogeomorphic (HGM) classification system that categorizes wetlands based on the
values and functions that they provide.

1.

Cowardin classification

Using the Cowardin classification system mentioned above, the Fish and Wildlife Service
identifies the following five types of wetland and deepwater habitat systems:
•

Marine

•

Estuarine

•

Lacustrine

•

Riverine

•

Palustrine

Marine systems encompass the open ocean and coastlines, and include coastal lagoons,
rocky shores and coral reefs. See L. Cowardin, et al., U.S. Department of the Interior,
Fish and Wildlife Service, Classification of Wetlands and Deep-Water Habitats of the
United States 4 (1979).
Estuarine systems encompass deepwater habitats “that are usually semi-enclosed by
land but have ... access to the open ocean, and in which ocean water is at least
occasionally diluted by freshwater runoff from the land.” Id. at 4. Estuarine systems
include areas such as deltas, tidal marshes, coastal brackish areas, and mangrove
swamps. The marine and estuarine systems are generally salt water habitats. The other
systems are generally fresh water habitats, although there are some tidal riverine
systems.

12

For wetlands, lacustrine systems generally refer to wetlands associated with lakes and
reservoirs. Id. at 9-10. Similarly, the wetlands included within riverine systems are
generally wetlands associated with rivers and streams. Id. at 7-8. However, whether
wetlands in or near rivers, lakes or streams fit within the lacustrine or palustrine
categories, or another category, will depend on the amount of “trees, shrubs, persistent
emergents, emergent mosses or lichens” in the wetlands. Riverine systems do not include
wetlands dominated by those features, and lacustrine systems do not include wetlands
where those features cover more than 30% of the wetlands. Id. at 7-10. Wetlands
associated with rivers and lakes that do not fit within the lacustrine or riverine systems
are included with the much broader final category of wetlands, the palustrine system.
The palustrine system includes “all non-tidal wetlands dominated by trees, shrubs,
persistent emergents, emergent mosses or lichens” and similar wetlands in some tidal
areas. Id. at 10. The system includes marshes, swamps, bogs, fens, and prairies. Id. Most
of the wetland acreage in the United States is within this category. According to a recent
Fish and Wildlife Service report, in 2009, 88% of the wetlands in the conterminous United
States were in the palustrine system. See Stedman, S. & T.E. Dahl, National Oceanic
and Atmospheric Administration, National Marine Fisheries Service and U.S. Department
of the Interior, Fish and Wildlife Service, Status and Trends of Wetlands in the Coastal
Watersheds of the Conterminous United States: 2004 to 2009 38 (2013).

2.

Marshes, Swamps, Bogs, and Fens

Within the various wetland and deepwater habitat systems identified above, the most
prevalent types of wetlands are marshes, swamps, bogs, and fens. The differences
between those types of wetlands are described in the following sections.

Marshes
Marshes are wetlands that are characterized by soft stemmed herbaceous plants, such
as cattails and pickerelweed, see Niering, supra, at 21, and are frequently or continually
inundated with water. See U.S. Environmental
Protection Agency, Marshes. While some marshes
may be fed by groundwater, marshes usually receive
most of their water from surface water. Id.

Photo 7 Photo By Jpaw1991 (Own work)
http://commons.wikimedia.org/wiki/File:
Cattails.jpg [CC-BY-SA-3.0 ]

Tidal marshes are most prevalent on the east coast
of the United States and along the Gulf of Mexico. Id.
Non-tidal marshes are “the most prevalent and
widely distributed wetlands in North America.” Id.
Non-tidal marshes are often found in poorly drained
depressions along streams and in the shallow water
13

along lakes, rivers, and ponds. Id.
Included within the category of non-tidal marshes are freshwater marshes, wet
meadows, wet prairies, prairie potholes, vernal pools and playa lakes. Wet
meadows commonly occur in poorly drained areas, resemble grasslands, and are
generally drier than other marshes except during seasonal high water periods. See U.S.
Environmental Protection Agency, Wet Meadows. They frequently are found in
agricultural areas. Id. Wet prairies are similar to wet meadows, but are wet for longer
periods of time. See U.S. Environmental Protection Agency, EPA-843-F-01-002b, Types
of Wetlands (Sept. 2001). Prairie potholes are depressional wetlands that are found
most frequently in the upper midwest. See U.S. Environmental Protection Agency, Prairie
Potholes. Many species of migratory waterfowl rely on these wetlands for breeding and
feeding. Id. Vernal pools are seasonal depressional wetlands found primarily on the west
coast and in the glaciated areas of the northeast and midwest. See U.S. Environmental
Protection Agency, Vernal Pools. They are covered by shallow water during periods of
the winter and spring, but may be dry for the summer and fall. Id. They are usually found
in gently sloping grassland plains and usually overlay bedrock or a layer of hard clay. Id.
Playa lakes are round hollows usually found in the southern high plains and are only
present for short periods during the year. See U.S. Environmental Protection Agency,
Playa Lakes. They are vital because they store water in a region of the country that
receives very little rain and has no permanent rivers or streams. Id.

Swamps
Swamps are wetlands dominated by woody plants,
such as trees and shrubs. See Niering, supra, at 22.
The soils are saturated during the growing season and
standing water is not uncommon during certain times
of the year. See U.S. Environmental Protection
Agency, Swamps. Swamps are generally divided into
two types, forested swamps and shrub swamps,
depending on the vegetation present. Id.
Forested swamps are found throughout the United
States and are frequently inundated with surface
Photo 8 NPS Photo
water from rivers and streams. Id. While they vary by
http://commons.wikimedia.org/wiki/File:
geographic region, trees typically found in forested
Big_thicket.jpg
wetlands include red maple, white oak and bald
cypress. See U.S. Environmental Protection Agency, EPA-843-F-01-002b, Types of
Wetlands (Sept. 2001). Forested swamps in the south central United States are generally
referred to as bottomland hardwood swamps.

14

Shrub swamps are similar to forested swamps and sometime found adjacent to them,
but are dominated by shrub vegetation. See U.S. Environmental Protection Agency,
Swamps. They are often found along streams and in floodplains, although there are also
tidal shrub swamps, including mangrove swamps. Id.

Bogs and Fens
Bogs are acidic peatlands, often covered by a blanket of sphagnum moss. See U.S.
Environmental Protection Agency, Bogs. They are mostly found in the northeast and the
Great Lakes region (northern bogs), although they can also be found in the southeast
(pocosins) and receive most of their water from precipitation, as opposed to runoff,
groundwater or streams. Id. Large amounts of carbon are stored in the peat deposits in
bogs, so these wetlands play an important role in minimizing and adapting to climate
change. Id.
Fens also are peatlands, but receive water from groundwater as well as precipitation.
See U.S. Environmental Protection Agency, Fens. Consequently, they are less acidic and
have higher nutrient levels than bogs and can support a greater diversity of plants and
animals. Id.

3.

Hydrogeomorphic (HGM) Classification

The hydrogeomorphic (HGM) classification system is a system developed by the U.S.
Army Corps of Engineers to classify wetlands and other aquatic systems based on their
ability to perform various functions. The HGM system was originally developed in 1993
as a tool to classify wetlands based on their location within a landscape (“geomorphic
setting” - i.e., location on a hillside, in a valley, adjacent to rivers) and their hydrology
(based on the source of the water in the wetland, such as runoff, groundwater or
precipitation; the flow rate of water; and the duration of water in the wetland). See Mark
M. Brinson, U.S. Army Corps of Engineers, Technical Report WRP-DE-4, A
Hydrogeomorphic Classification for Wetlands (Aug. 1993). It was expanded a few years
later to focus on assessing the functions of wetlands, based on the original HGM
classifications. See R. Daniel Smith, U.S. Army Corps of Engineers, Technical Report
WRP-DE-9, An Approach for Assessing Wetland Functions Using Hydrogeomorphic
Classification, Reference Wetlands, and Functional Indices (Oct. 1995). The HGM system
was originally designed for use in the Clean Water Act section 404 permit program that
the Corps administers, see Chapter 2 of this book, but, in 1997, most federal agencies
that had jurisdiction over wetlands under various laws agreed to use the HGM system to
assess wetland functions. See U.S. Army Corps of Engineers, The National Action Plan
to Implement the Hydrogeomorphic Approach to Assessing Wetland Functions, 62 Fed.
Reg. 33607 (June 20, 1997). Pursuant to that 1997 “National Action Plan,” the Corps of
Engineers has developed a series of regional guidebooks to explain the process for
15

applying the system to various HGM classes across the United States. See U.S. Army
Corps of Engineers, Guidebooks.
The HGM classification system divides wetlands into the following seven classes:
•
•
•
•
•
•
•

Depressional
Riverine
Mineral Flats (Flats)
Organic Flats (Extensive peatlands)
Tidal Fringe
Lacustrine Fringe
Slopes

See U.S. Army Corps of Engineers, Hydrogeomorphic Approach for Assessing Wetlands
Functions, Wetland Classifications.
Some of the characteristics of the various types of systems and some of the types of
wetlands included in each system, are identified in the following chart:

HGM Type

Characteristics

Typical Wetlands

Depressional

Located in topographic depressions; Fed
by precipitation, surface water,
groundwater; Water flows toward the
center of the depression; Duration of
wetness varies from ephemeral to
perennial.

Prairie potholes, playa
lakes, and vernal pools

Riverine

Located in floodplains and riparian
corridors associated with stream
channels; Water source is primarily
overbank flow, with some groundwater
and other connections; Water flows out to
the channels during rainfall events and
after flooding.

Bottomland hardwoods

Mineral Flats

Located on slight slopes; Water source is
primarily precipitation; Water moves
slowly out of these wetlands.

Pine flatwoods

16

Extensive
peatlands

Located on flat interfluves or in locations
where depressions have filled with peat;
water source is primarily precipitation;
Water flows out through overland flow and
seepage to groundwater.

Northern peatlands

Tidal Fringe

Located along the coast and in estuaries;
Tidal currents are the predominant water
source, although groundwater and
precipitation may be additional sources;
Bi-directional flow of water between the
wetlands and tides; These wetlands are
seldom dry.

Salt marsh

Lacustrine
Fringe

Usually located adjacent to lakes where
the water table of the lake maintains the
wetland’s water table; Water sources
include the lake, precipitation and
groundwater discharge; Surface water
flow is bi-directional.

Un-impounded
marshes bordering the
Great Lakes

Slopes

Usually located on slight to steep sloping
land; Predominant water source is
groundwater and some precipitation;
Surface water generally flows quickly
downgradient and out of the wetland.

Fens

See U.S. Army Corps of Engineers, Hydrogeomorphic Approach for Assessing Wetlands
Functions, Wetland Classifications.
Since wetlands in the same HGM category have similar geomorphology (location within
a landscape) and similar hydrology, they will generally perform similar functions. See
Dennis W. Magee, A Primer on Wetland Ecology, Wetlands Law and Policy:
Understanding Section 404 43-49 (Section of Environment, Energy and Resources,
American Bar Association, 2005). For instance, because depressional wetlands trap more
water than some other categories of wetlands, they may provide groundwater recharge
functions that wetlands in other HGM categories, like slope wetlands, may not. Id. at 4344. Similarly, because of their hydrology and geomorphology, lacustrine fringe wetlands
serve a very important floodwater storage function, among other functions. Id. at 45-46.
Tidal fringe wetlands can perform significant water quality functions, among other
functions. Id. at 48-49. Since the wetlands within similar categories perform similar
functions, the HGM classification system tailors assessment tools within each category
17

to determine how well a specific wetland can perform the functions assessed for that
category. Id. at 52-53.

RESOURCES
Cowardin Classification
FWS Fact Sheets on Wetland and Deepwater Habitat Systems - Marine,
Estuarine, Riverine, Lacustrine, Palustrine
Corps of Engineers HGM web page
EPA Wetland Types web page

III.

Status and Trends

At the end of the eighteenth century, it is estimated that there were approximately 392
million acres of wetlands in the United States, with 221 million acres in the lower 48 states.
See Dahl, T.E., U.S. Department of Interior, U.S. Fish and Wildlife Service, Wetlands
Losses in the United States: 1780s to 1980s 1 (1990). By 1980, the Fish and Wildlife
Service concluded that, after a “200 year history of wetland conversion”, wetland acreage
in the lower 48 states had declined by 53% to about 104 million acres. Id. Over that time
period, therefore, about 585,000 acres of wetlands were lost every year. During that time
period, California lost 90% of its wetlands, 10 states (Arkansas, California, Connecticut,
Illinois, Indiana, Iowa, Kentucky, Maryland, Missouri, and Ohio) lost 70% or more of their
wetlands, and 22 states lost at least 50% of their wetlands. Id. at 3-5. Except for Alaska,
Hawaii, and New Hampshire, every other state lost at least 20% of their wetlands during
that time period. Id. An overwhelming percentage of those losses occurred before the
1950s, as a 1983 Fish and Wildlife Service report found that there were 108.1 million
acres of wetlands in the lower 48 states in the 1950s. See U.S. Department of Interior,
U.S. Fish and Wildlife Service, Status and Trends of Wetlands and Deepwater Habitats
in the Conterminous United States: 1950s to 1970s 3 (Apr. 1983). That report also
determined that the rate of wetland losses between the 1950s and 1970s was 458,000
acres per year. Id. In a follow-up survey, the Fish and Wildlife Service determined that the
rate of wetland loss has decreased, between the mid-1980s through mid-1990s, to
290,000 acres per year. Dahl, T.E. & C.E. Johnson, U.S. Department of the Interior, U.S.
Fish and Wildlife Service, Status and Trends of Wetlands in the Conterminous United
States: Mid·1970s to Mid·l980s 3 (1991).
The Fish and Wildlife Service has continued to conduct periodic surveys of the status of
wetland acreage in the United States and, in a report issued in 2000, concluded that the
rate of wetland loss declined, during the period from 1986-1997, to 58,500 acres per year,
and that 105.5 million acres of wetlands remained in the conterminous United States in
1997. See Dahl, T.E., U.S. Department of the Interior, U.S. Fish and Wildlife Service,
18

Status and Trends of Wetlands in the Conterminous United States: 1986 to 1997 9 (2000).
Ninety-five percent of the remaining wetlands, at that time, were inland freshwater
wetlands, while five percent were estuarine and saltwater wetlands. Id. at 10. Ninety-eight
percent of the wetland losses during the study period were losses to freshwater wetlands.
Id. The study suggested that the overall decline in the rate of wetland losses was due to
“implementation and enforcement of wetland protection measures and elimination of
some incentives for wetland drainage,” among other factors. Id. For the first time, that
study also attempted to identify the types of activities that contributed to the wetland
losses. Thirty percent of the wetland losses during the study period were attributed to
urban development, twenty-six percent were attributed to agriculture, twenty three
percent to silviculture, and 21 percent to rural development. Id. at 11. Road construction
is a major factor in wetland conversion, as it often entails the placement of fill material in
wetlands and it opens up previously inaccessible areas, wetland and otherwise, to
development. See Royal C. Gardner, Lawyers, Swamps, and Money 95 (Island Press
2011). To serve a growing population, energy exploration, including offshore exploration
and mountaintop removal mining, has also grown as a source of wetland destruction. Id.
at 96.
In 2005, the Fish and Wildlife Service released a report that found, for the first time, that
wetland acreage in the conterminous United States was increasing. Dahl, T.E., U.S.
Department of the Interior, U.S. Fish and Wildlife Service, Status and Trends of Wetlands
in the Conterminous United States: 1998 to 2004 (2005). The study found that there were
107.7 million acres of wetlands in the conterminous United States in 2004, and that
wetland acreage increased by 32,000 acres per year between 1998 and 2004. Id. at 16.
The report suggested that the net gains in wetland acreage were due to “wetlands
created, enhanced or restored through regulatory and nonregulatory restoration
programs.” Id. at 16. More specifically, though, the report indicated that most of the gains
during the study period were due to the restoration and creation of freshwater ponds
through agricultural conservation programs, and that the ponds “would not be expected
to provide the same range of wetland values and functions as a vegetated freshwater
wetland.” Id. The authors of the study indicated, at the outset of the report, that “[o]n Earth
Day 2004, President Bush announced a wetlands initiative that established a federal
policy beyond “no net loss” of wetlands, [which] ... seeks to attain an overall increase in
the quality and quantity of wetlands [and that] ... [t]he President set a goal of restoring,
improving and protecting more than 3 million acres ... in five years.” Id. at 15. The authors
indicated that the report provided some data regarding the progress being made to meet
the goals regarding the increase in quantity of wetlands, but that the report did “not assess
the quality or condition of the nation’s wetlands.” Id. Indeed, none of the previous reports
assessed the quality or condition of the wetlands either. All of the reports focused simply
on the quantity of wetland acreage lost.
In the most recent study of wetland status and trends, the Fish and Wildlife Service found

19

that there was a small, but statistically insignificant, difference between wetland acreage
in the conterminous United States between 2004 and 2009, with overall acreage declining
by 62,300 acres (or 13,800 acres per year over the 4.5 year study period).” Dahl, T.E.,
U.S. Department of the Interior, U.S. Fish and Wildlife Service, Status and Trends of
Wetlands in the Conterminous United States: 2004 to 2009 15-16 (2011). As in several
previous studies, ninety-five percent of the wetlands identified were freshwater wetlands
and five percent were marine or estuarine wetlands. Id. at 16. Freshwater pond acreage
continued to grow, although more slowly than in the prior report, and forested wetlands
“sustained their largest losses since the 1974 to 1985 time period.” Id. at 16. While the
authors indicated that the report did not draw conclusions regarding trends in the quality
or condition of wetlands, they wrote, “The cumulative effects of losses in the freshwater
system have had consequences for hydrologic and ecosystem connectivity. In certain
regions, profound reductions in wetland extent have resulted in habitat loss,
fragmentation, and limited opportunities for reestablishment and watershed
rehabilitation.” Id.
Although the rate of wetland loss in the conterminous United States may have leveled off,
in some regions, the rate of wetland loss continues to increase. In addition to the reports
that focus on wetland acreage in the conterminous United States, the Fish and Wildlife
Service has partnered with the National Oceanic and Atmospheric Administration to
examine wetland trends in coastal watersheds. Significantly, the agencies found that,
during the 1998-2004 time period, the coastal watersheds of the eastern United States
lost about 59,000 acres of wetlands each year, at a time when the Fish and Wildlife
Service study above was indicating that there was an overall net increase of 32,000 acres
of wetlands per year. See Stedman, S. & T.E. Dahl, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service and U.S. Department of the Interior,
Fish and Wildlife Service, Status and Trends of Wetlands in the Coastal Watersheds of
the Eastern United States: 1998 to 2004 5 (2008). In a more recent report, the agencies
concluded that wetland acreage in the coastal watersheds of the United States declined
by 360,720 acres between 2004 and 2009, for an average loss of 80,160 acres per year.
See Stedman, S. & T.E. Dahl, National Oceanic and Atmospheric Administration, National
Marine Fisheries Service and U.S. Department of the Interior, Fish and Wildlife Service,
Status and Trends of Wetlands in the Coastal Watersheds of the Conterminous United
States: 2004 to 2009 2 (2013). That represented a 25% increase in the rate of wetland
loss when compared to data for the region between 1998 and 2004. Id. The greatest
losses in acreage are occurring in the Gulf of Mexico and Atlantic regions, with smaller
losses along the Pacific coast and net gains in the Great Lakes region. Id. at 20. The
authors of the report noted that “wetland reestablishment in coastal watersheds has
lagged behind reestablishment rates observed nationally [and that] ... [a] strategy of
achieving “no net loss” by offsetting wetland acreage losses with wetland creation or
reestablishment does not appear to be effective in the coastal watersheds as wetland
losses have increased in some coastal regions.” Id. at 3.

20

Questions and Comments
1.

No net loss ...: In 1987, the Conservation Foundation convened a National
Wetlands Policy Forum, which developed a set of consensus recommendations
on protecting and managing wetlands. One of the recommendations was that the
national policy be guided by a goal of “no overall net loss” of the nation’s wetlands
and a long-term goal to increase the quantity and quality of the nation’s wetlands.
See Julie M. Sibbing, National Wildlife Federation, Nowhere Near No Net Loss.
President George H.W. Bush endorsed the policy of “no net loss” of wetlands in
1989 and Presidents Clinton and George W. Bush endorsed the policy and
expanded it in their administrations to achieve increases in wetland acreage. Note,
though, that “no net loss” focuses not just on loss of acreage of wetlands, but on
loss of the quality of wetlands - the values and functions. Why have most of the
federal government studies focused solely on wetland acreage? EPA and the Fish
and Wildlife Service recently completed a National Wetland Condition Assessment
to determine the quality of our nation’s wetlands. See U.S. Environmental
Protection Agency, National Wetland Condition Assessment. Will this tool help the
agencies determine whether the quality of the nation’s wetlands has degraded in
the last 50-100 years? The next 50-100 years?

2.

The 2005 Fish and Wildlife report indicated that net wetland acreage in the United
States had increased between 1998 and 2004. Much of the net growth was
attributable to projects to create or restore ponds and other wetlands on
agricultural lands. Should the increase in acreage be viewed as a success? When
compared to the values and functions provided by the wetlands lost? When
compared to the losses of other types of wetlands, such as coastal wetlands,
where restoration projects did not outpace conversion projects?

3.

Mission Accomplished?: In 2008, President George W. Bush released a report
indicating that more than 3.6 million acres of wetlands had been restored,
protected or preserved as part of an initiative that he announced in 2004 to create,
improve or protect at least 3 million acres of wetlands by 2009. See Office of the
President, Council on Environmental Quality, Conserving America’s Wetlands
2008: Four Years of Progress Implementing the President’s Goal (April 2008).
Environmental groups criticized the report because it did not quantify wetland
losses during the corresponding period, or indicate whether the actions resulted in
any net gain of acreage, let alone values or functions.

4.

The Natural Resources Conservation Service (NRCS), within the U.S. Department
of Agriculture, also collects and analyzes data relating to wetland acreage as part
of its National Resources Inventory. See U.S. Department of Agriculture, Natural

21

Resources Conservation Service, National Resources Inventory. It relies on the
same classification system for wetlands as the Fish and Wildlife Service, but the
study only examines resources on non-federal land in the conterminous United
States. See U.S. Department of Agriculture, Natural Resources Conservation
Service, 2007 Natural Resources Inventory: Wetlands 1 (2013). In addition, the
study periods are different from the study periods used by the Fish and Wildlife
Service. Id. Consequently, it is difficult to compare the data from the NRCS and
FWS studies. NRCS did, however, find net increases in wetland acreage between
1997 and 2002, and between 2002 and 2007. Id. at 5.
5.

It is estimated that 75% of the remaining wetlands in the lower 48 states are on
private lands. See U.S. Environmental Protection Agency, Wetlands Protection:
Partnering with Land Trusts. What impacts might that have for regulatory and
legislative policy-making?

IV.

Wetland Delineation

While Part II of this chapter focused on the classification systems that are used to
categorize wetlands, this part examines the “delineation” process that is used to
determine whether property is a wetland and to determine the physical boundaries of
wetlands. With the exception of the Natural Resources Conservation Service, the federal
agencies that regulate wetlands follow procedures in a 1987 technical manual developed
by the Army Corps of Engineers to delineate wetlands. See U.S. Army Corps of
Engineers, Wetlands Research Technical Report Y-87-1, Corps of Engineers Wetlands
Delineation Manual (1987) [hereinafter “1987 Corps Delineation Manual”].
The agencies focus on three characteristics of wetlands to determine whether property is
a wetland - vegetation, soils and hydrology. Id. ¶ 26(b). Except when an area has been
altered or in a few other unusual circumstances, positive indicators of all three
characteristics must be present for an area to be delineated as a wetland. Id. ¶ 26(c).
Thus, an area that has wetland vegetation and wetland hydrology, but not wetland soils,
will normally not be a wetland. Since vegetation, soils and hydrology differ throughout the
country, the Corps has also developed supplements to the 1987 delineation manual that
provide guidance on delineating wetlands in 10 different geographic regions. See U.S.
Army Corps of Engineers, Regional Supplements to the Corps Delineation Manual.
Vegetation
Wetlands are areas where the prevalent vegetation is hydrophytic vegetation (species
that have the ability to grow, effectively compete, reproduce and/or persist in anaerobic
soil conditions). See 1987 Corps Delineation Manual ¶¶ 26(b)(1). The Fish and Wildlife
Service publishes a list of hydrophytic vegetation that is used in making this

22

determination. See U.S. Department of the Interior, U.S. Fish and Wildlife Service, 2014
National Wetland Plant List. Generally, this criterion is met if more than 50% of the
dominant plant species in the area are hydrophytic (categorized as obligate wetland
plants, facultative wetland plants or facultative plants on the National Wetland Plant list).
See 1987 Corps Delineation Manual ¶¶ 35(a). In addition, identification of trees with
shallow root systems, swollen trunks or roots growing from the plant stem or trunk above
the soil surface may sometimes indicate that the vegetation criterion is satisfied. See U.S.
Army Corps of Engineers, Recognizing Wetlands.
Soils
Areas meet the criterion for wetland soils if the soils in the area are
hydric soils (i.e., “have characteristics that indicate that they were
developed in conditions where soil oxygen is limited by the presence
of saturated soil for long periods during the growing season.”) See U.S.
Army Corps of Engineers, Recognizing Wetlands. The Natural
Resources Conservation Service maintains a list of hydric soils, see
U.S. Department of Agriculture, Natural Resources Conservation
Service, Soil Taxonomy (2d ed. 1999), and soil types can usually be
identified by comparing soil colors at various depths to soil charts. See
Munsell Color, Munsell Soil Color Charts.
Photo 9 NRCS Photo By Bob Nichols
Since hydric soils can remain in an area
http://commons.wikimedia.org/wiki/File:NRCSNE00023__Nebraska_(5167)(NRCS_Photo_Gallery).jpg
even after the area no longer exhibits
wetland hydrology or vegetation, though,
soils are considered less reliable indicators than the other two criterion. See Mark A.
Chertok & Kate Sinding, Federal Jurisdiction over Wetlands: “Waters of the United
States”, in Wetlands Law and Policy 87 (Section of Environment, Energy and Resources,
American Bar Association, 2005).
Hydrology
Areas meet the criterion for hydrology if they “are periodically inundated or have soils
saturated to the surface at some time during the growing season.” See 1987 Corps
Delineation Manual ¶¶ 46. The Corps provides the following helpful definition in an
information pamphlet on recognizing wetlands, “wetland hydrology refers to the presence
of water at or above the soil surface for a sufficient period of the year to significantly
influence the plant types and soils that occur in the area.” See U.S. Army Corps of
Engineers, Recognizing Wetlands. Normally, areas must be inundated for at least a week
during the growing season to meet the hydrology criterion. See Chertok & Sinding, supra,
at 87. Inundation or saturation can be demonstrated by visual observation or recorded
data, such as stream gage data, lake gage data, flood predictions and historical data. See
1987 Corps Delineation Manual ¶¶ 49. In addition to those methods, the hydrology

23

criterion may be satisfied through observation of drift lines, sediment deposits, drainage
patterns, or watermarks on vegetation. Id. Many of those indicators, though, do not reveal
the frequency, timing or duration of flooding or the soil saturation. See U.S. Army Corps
of Engineers, Recognizing Wetlands. While hydrology “is often the least exact” of the
criterion, “it is essential to establish that a wetland area is periodically inundated or has
saturated soils during the growing season.” See 1987 Corps Delineation Manual ¶¶ 46.

Interviews
Jan Goldman Carter, Senior Manager and Counsel for the National Wildlife
Federation’s Wetlands and Water Resources Program, discusses:
1

The value of a scientific background for a career in environmental law.
(You Tube)

2. The judicial and legislative understanding of, and receptivity to, scientific
issues involving wetlands. (YouTube)
Stephen Samuels, an Assistant Section Chief in the Environmental Defense
Section of the Environment and Natural Resources Division of the U.S.
Department of Justice, discusses the challenge of influencing courts and
legislatures with scientific information on the values and functions of
wetlands. (YouTube)

24

Research Problems
1. Agency Reports: While federal law requires agencies to publish rules and
various adjudicative decisions and guidance documents in the Federal Register, see
Chapter 3, infra, agencies are generally not required to publish reports that they
produce in any specific format. However, most agencies make significant reports
that they produce available on the agency’s website. See if you can locate a report
issued by the United States Fish and Wildlife Service entitled “Status and Trends of
Wetlands in the Coastal Watersheds of the Conterminous United States 2004 to
2009". According to the report, in 2009, there were an estimated 41.1 million acres
of wetlands in the coastal watersheds of the United States.
a.
b.
c.

What percentage of those wetlands were freshwater wetlands?
What percentage of those wetlands were saltwater wetlands?
Which coastal region experienced a new gain in wetland acreage
between 2004 and 2009?

2. Guidance documents: Although a few agency guidance documents are
published in the Federal Register, most are not. However, agencies publish
frequently requested guidance documents on their websites. If guidance documents
are not available on the agency’s website, interested persons normally have to
contact the agency to request a copy of the guidance document (if they know that
the guidance document exists). See if you can locate the Regional Supplement to
the Corps of Engineers Wetland Delineation Manual that would apply to property
located in New York State. Which section of the Corps’ 1987 Delineation Manual is
replaced, for that Region, by Chapter 2 of the Regional Supplement?

RESOURCES
Corps of Engineers Video on Delineating Wetlands
DNREC (Delaware) Video on Wetlands and Identifying Wetlands
1987 Corps Delineation Manual & Regional Supplements (Map of regions for suppl.)
Field Evaluation Questionnaire used by Corps in delineating wetlands
National Food Security Act Manual (includes NRCS delineation procedures)
National Wetlands Inventory by Fish and Wildlife Service
National Wetlands Inventory - Mapping Utility (Search for Wetlands)
Loria A. Sutter, Royal C. Gardner, James E. Perry, Science and Policy of U.S. Wetlands, 29
Tul. Envt’l L. J. 31 (2015)

Chapter Quiz
Now that you’ve finished Chapter 1, why not try a CALI Lesson on the material
at: http://cca.li/PQ. It should only take about fifteen minutes.

25

Chapter 2
The History of Regulation
I.

Early Development Laws

Sentiments toward wetlands have evolved significantly over
the history of our nation, and wetlands laws have evolved
significantly as well. For much of the eighteenth and
nineteenth centuries, public sentiment and legislation favored
the draining and conversion of wetlands. They were long
considered “insect-ridden, unattractive, and dangerous”
places. See William A. Niering, Wetlands 19 (Chanticleer
Press, 1985). In 1732, William Byrd II, the founder of
Richmond, Virginia, described the Great Dismal Swamp (now
a national wildlife refuge) as “a vast body of mire and
nastiness.” See U.S. Department of Interior, U.S. Fish and
Wildlife Service, The Great Dismal Swamp and the
Underground Railroad. Thirty years later, George Washington
joined several partners to form “Adventurers for Draining the Photo 10 USFWS Photo by S.
Dismal Swamp” and the Virginia General Assembly authorized Bournique
their company to harvest the timber and drain much of the http://commons.wikimedia.or
swamp, which extended over 2,000 square miles at the time. g/wiki/File:Great_dismal_swa
See The Diaries of George Washington, Vol. 1: 11 March mp.jpg
1748 – 13 November 1765, at 319-320 (ed. Donald Jackson. Charlottesville: University
Press of Virginia, 1976).
To the extent that Congress legislated in the area of natural resources in the eighteenth
and nineteenth centuries, laws such as the Homestead Act of 1862, Act of May 20, 1862,
Pub. L. 37-62, 12 Stat. 392 (which required the “improvement” of homesteads), and the
General Mining Act of 1872, 30 U.S.C. §§ 22-47, focused on encouraging the settlement
of the country and the exploitation of natural resources, as opposed to protecting and
conserving resources. Federal laws regarding wetlands at the time were no different. The
Swamp Wetland Act of 1849, 9 Stat. 352 (1849), granted to Louisiana all of the swamp
lands in the State that were not suitable for cultivation, so that the State could build levees
and drains to “reclaim” the wetlands. See Shaw, Samuel P. and C. Gordon Fredine, U.S.
Department of the Interior, Circular 39 Wetlands of the United States - Their Extent and
26

Their Value to Waterfowl and Other Wildlife (1956) [hereinafter “USGS, Wetlands of the
United States”]. The Swamp Wetland Act of 1850, 9 Stat. 519 (1850), granted the
swamp lands in 12 other states (Alabama, Arkansas, California, Florida, Illinois, Indiana,
Iowa, Michigan, Mississippi, Missouri, Ohio, and Wisconsin) to those states for similar
purposes. See USGS, Wetlands of the United States. In 1860, Congress extended the
provisions of those laws to cover the wetlands in Minnesota and Oregon. Id. Through
those laws, almost 65 million acres of wetlands were given to the States. Id. The States
sold or gave away most of those wetlands to local governments or developers, and now
most are in private hands. Id. Most of the wetlands that were destroyed over the first two
centuries of our nation were converted to agricultural lands, usually by private
landowners. See National Research Council. Wetlands: Characteristics and Boundaries
17 (Washington, DC: The National Academies Press, 1995).
At the end of the nineteenth century, Congress passed the Rivers and Harbors
Appropriations Act of 1899, see 33 U.S.C. § 401, et. seq., a law that would eventually
play a role in limiting the destruction and conversion of wetlands. See Chapters 4 and 6,
infra. However, the primary focus of that law is on protecting the navigability of the nation’s
waters and protecting interstate commerce, which is often accomplished through
dredging or the construction of channels. While the law includes provisions that limit
obstructions in navigable waters, see 33 U.S.C. § 403, and prohibits the deposit of refuse
in navigable waters, see 33 U.S.C. § 407, it was almost three quarters of a century after
the law was enacted before courts upheld the government’s authority to prohibit
obstruction activities in wetlands for environmental reasons under the law. See Zabel v.
Tabb, 430 F.2d 199 (5th Cir. 1970). Thus, at the time, enactment of the law did not signal
a significant shift in the congressional policy or attitude toward wetlands.
The prevailing sentiment towards wetlands at the turn of the twentieth century was
probably expressed most clearly in the Supreme Court’s 1900 decision in Leovy v. United
States, when Justice Shiras, for the Court, wrote:
If there is any fact which may be supposed to be known by everybody, and therefore
by courts, it is that swamps and stagnant waters are the cause of malarial and
malignant fevers, and that the police power is never more legitimately exercised than
in removing such nuisances.
177 U.S. 621, 636 (1900). The Court also noted that converting the wetlands in the case
to agricultural use increased the value of the land from $5,000 to $100,000 and could
possibly increase the value to $300,000. Id. at 627.

27

II.

A Slow Shift to Conservation

Although large segments of the public and policymakers adopted views similar to those
expressed by the Court, the turn of the twentieth century also witnessed the birth of a
national conservation movement. In 1903, by Executive Order, President Theodore
Roosevelt established the country’s first National Wildlife Refuge, Pelican Island National
Wildlife Refuge, in south Florida. See U.S. Department of the Interior, U.S. Fish and
Wildlife Service, Short History of the Refuge System: The Early Years (1864-1920). While
the Pelican Island Refuge was the first National Wildlife Refuge, federal and state
governments and private organizations had already begun to acquire wetlands to
establish wildlife sanctuaries in the late nineteenth century. See National Research
Council. Wetlands: Characteristics and Boundaries 45 (Washington, DC: The National
Academies Press, 1995). In the six years after he established the Pelican Island National
Wildlife Refuge, President Roosevelt issued 51 additional Executive Orders that
established wildlife reservations in 17 States. Id. As it approached its centennial, the
National Wildlife Refuge System included more than 520 units in all 50 states, covering
93 million acres of wildlife habitat. See U.S. Department of the Interior, U.S. Fish and
Wildlife Service, Short History of the Refuge System: Approaching the Centennial (1997
and On). For an in-depth history of the National Wildlife Refuge System, see Robert L.
Fischman, The National Wildlife Refuge System and the Hallmarks of Modern Organic
Legislation, 29 Ecology L. Quarterly 457 (2002).
A few years after President Roosevelt left office, in 1913, Congress enacted the WeeksMcLean Act, Ch. 145, 37 Stat. 828, 847 (1913), to prohibit the commercial hunting and
shipment of migratory birds across state lines. The law, which was enacted as a rider to
appropriations legislation, was held unconstitutional as violating the Tenth Amendment,
but was replaced a few years later by the Migratory Bird Treaty Act of 1918, 16 U.S.C.
§ 703, et seq., which prohibits hunting, capturing, possessing, selling and many other
activities with regard to migratory birds that are protected by an international migratory
bird treaty. Although those laws were not enacted to provide protection to wetlands, they
demonstrated Congress’ concern with protecting migratory birds, and that concern would
eventually lead to further legislation to protect the habitat, including wetlands habitat, of
those birds.

28

Two of the earliest federal wetland conservation
laws were the Migratory Bird Conservation Act
of 1929, 16 U.S.C. §§ 715-715d, 715e, 715f-715r,
which authorized, but did not permanently fund, the
acquisition and preservation of wetlands as habitat
for waterfowl, and the Migratory Bird Hunting
Stamp Act of 1934, 16 U.S.C. §§ 718 - 718j
(generally referred to as “The Duck Stamp Act”),
which created a funding source for the wetlands
conservation authorized by the 1929 law. See U.S.
Department of the Interior, U.S. Fish and Wildlife
Service, Federal Duck Stamp Office, History of the
Photo 11 Public Domain Photo
http://commons.wikimedia.org/wiki/File: Federal Duck Stamp. Duck Stamps are pictorial
Duck_stamp.jpg
stamps that are produced by the Fish and Wildlife
Service which were originally created as federal licenses to hunt migratory waterfowl. Id.
Today, Duck Stamps also serve as entry passes to National Wildlife Refuges and many
people buy Duck Stamps simply to promote wetland conservation, as ninety-eight cents
out of every dollar from the sale of Duck stamps is used to purchase or lease wetland
habitat for National Wildlife Refuges. Id. Since 1934, the Fish and Wildlife Service has
raised more than 800 million dollars from the sale of Duck Stamps and has purchased or
leased more than 6 million acres of wetlands with those proceeds. Id.
Although Congress created the Duck Stamp program in 1934 to fund federal acquisition
and protection of wetlands, between 1940 and 1977, the U.S. Department of Agriculture
provided technical information and cost-sharing, through its Agricultural Conservation
Program, to assist landowners in draining wetlands. See U.S. Congress, Office of
Technology Assessment, OTA-O-206, Wetlands: Their Use and Regulation 77 (Mar.
1984).

III.

Towards Comprehensive Federal Regulation

As was the case with most environmental issues, though, federal regulatory involvement
in wetlands protection grew during the end of the 1960s and throughout the 1970s. At
first, Congress and the Corps strengthened the wetland protections in the Rivers and
Harbors Act. In 1965, Congress amended the Fish and Wildlife Coordination Act to
require agencies to consider opportunities for fish and wildlife enhancement when
planning any navigation, flood control, reclamation, hydroelectric or multipurpose water
resource project. See Pub. L. 89-72, 79 Stat. 213 (1965). After that, the Corps entered
into an agreement with the Fish and Wildlife Service to consult on projects that the Corps
would review for authorization under the Rivers and Harbors Act. See Memorandum of
Understanding Between the Secretary of the Interior and the Secretary of the Army (July
13, 1967). Around the same time, the Corps adopted regulations to incorporate a “public

29

interest” review, including a focus on environmental factors, into the Rivers and Harbors
Act permitting program. See 33 Fed. Reg. 18670 (Dec. 18, 1968). While these changes
provided some additional protection for wetlands, the Rivers and Harbors Act only
regulates activities in waters that are, were historically, or could potentially be, navigable,
see Chapter 4, infra, so the Corps’ jurisdiction over wetlands under the Act is fairly narrow.
Instead, most federal regulation of wetlands derives from the Federal Water Pollution
Control Act Amendments of 1972, Pub. L. 92-500, 86 Stat. 816 (1972), which, after
subsequent amendments, is commonly known as the Clean Water Act. The statute
prohibits the addition of pollutants into navigable waters, a term that has been interpreted
by the government and courts to include wetlands. See Chapter 4, infra. However,
Section 404 of the statute authorizes the Corps of Engineers to issue permits to authorize
the discharge of dredged or fill material into navigable waters. See 33 U.S.C. § 1344.
While the Endangered Species Act and the National Environmental Policy Act play a role
in protecting wetlands, as discussed later, the Clean Water Act Section 404 permitting
program is the primary federal tool for regulating and protecting wetlands and most of this
book focuses on that program. Although the statute authorizes the Corps to issue the
permits, Congress gave EPA the authority, with the Corps, to develop the guidelines that
the Corps uses to determine whether to issue the permits. See 33 U.S.C. § 1344(b)(1).
The statute also authorizes EPA and the Fish and Wildlife Service to comment on permit
applications, and authorizes EPA to veto Section 404 permits. See 33 U.S.C. § 1344(c).
The division of authority between EPA and the Corps has created some tension over the
years.
In the first few years after Congress created the Section 404 permit program, the Corps
of Engineers interpreted the Clean Water Act narrowly to provide limited jurisdiction over
wetlands. See Chapter 4, infra. By 1975, however, the Corps had adopted a more
expansive reading of the statute. Id. Since those early years of the Section 404 program,
several Presidents have issued Executive Orders, adopted action plans or announced
policies to expand protection of wetlands.
In 1977, President Carter issued Executive Order 11990, which required federal
agencies to “take action to minimize the destruction, loss or degradation of wetlands, and
to preserve and enhance the natural and beneficial values of wetlands.” See Executive
Order 11990, Protection of Wetlands § 1 (May 24, 1977). Significantly, the order also
required agencies to “avoid undertaking or providing assistance for new construction
located in wetlands unless the ... agency finds (1) that there is no practicable alternative
to such construction, and (2) that the proposed action includes all practicable measures
to minimize harm to wetlands which may result from such use.” Id. § 2. A little over a
decade later, in 1988, President George H.W. Bush endorsed a policy, which was
developed by a National Wetlands Policy Forum, of “no net loss” of wetlands. See Julie
M. Sibbing, National Wildlife Federation, Nowhere Near No Net Loss. After President

30

Clinton took office, through a 1993 Interagency Wetlands Plan, he reaffirmed the “no
net loss” policy as an interim goal and called for an increase in the quality and quantity of
the nation’s wetlands as a long term goal. See White House Office on Environmental
Policy, Protecting America’s Wetlands: A Fair, Flexible, and Effective Approach (Aug. 24,
1993). A decade after that, on Earth Day, 2004, President George W. Bush announced a
Strategy to Increase Wetland Acres and Quality, which focused on moving from a “no
net loss” policy to an increase in wetland acres and quality. See The White House, Office
of the Press Secretary, Wetlands Initiative Announced on Earth Day (April 22, 2004).

Photo 12 Screen Shot of NWI website – July 2014

31

For several decades, the National Wetlands Inventory has played an important role in
providing information about whether the “no net loss” goal is being met, at least with
regard to wetland acreage. The Fish and Wildlife Service began work on the national
inventory of wetlands in 1974 “to provide biologists and others with information on the
distribution and type of wetlands and to aid in conservation efforts.” See U.S. Department
of the Interior, U.S. Fish and Wildlife Service, NWI Overview. The agency developed the
Cowardin wetland classification system described in Chapter 1, supra, to classify
wetlands for the inventory. Id. While wetlands in the National Wetlands Inventory were
originally plotted on paper maps, the wetlands data in the inventory is now accessible and
searchable online in digital maps. Id. The data are also used to prepare the Service’s
periodic reports on wetland status and trends discussed in Chapter 1. Id. Congress
required the agency to prepare those periodic reports as part of the Emergency
Wetlands Resources Act of 1986, 16 U.S.C. §§ 3901-3932.

IV.

Conservation Programs and Agricultural Programs

While the Clean Water Act Section 404 program ushered in an era of comprehensive
federal regulation, the federal government also provides protection for wetlands through
a variety of economic incentive programs. Some of the programs have been in place for
several decades. For instance, in 1965, Congress passed the Land and Water
Conservation Fund Act of 1965, creating a Land and Water Conservation Fund, which
provides money to federal, state and local governments to purchase property, including
wetlands, for conservation and to fund conservation projects. See 16 U.S.C. §§ 4601-4 4601-11. Through 2014, the Fund provided $4 billion in grants to States to fund more than
42,000 conservation projects. See Land and Water Conservation Fund Coalition, 50
Years of Conserving America the Beautiful 6 (2014).
In 1970, Congress passed the Water Bank Act, which authorizes the Departments of
Agriculture and Interior to enter into 10 year contracts with landowners to preserve
wetlands on their land and protect wildlife habitat. See 16 U.S.C. §§ 1301-1311. In return,
the landowners receive annual payments over the contract period. Id. In Fiscal Year 2012,
Congress appropriated $7.5 million to fund the Water Bank Program. See U.S.
Department of Agriculture, Natural Resources Conservation Service, Water Bank
Program.
From those modest beginnings, Congress greatly expanded the number and scope of
federal programs that provide economic incentives for wetland protection shortly after the
release of a report by the Congressional Office of Technology Assessment (“OTA”) that
identified several federal laws and programs that impeded wetlands protection. See U.S.
Congress, Office of Technology Assessment, OTA-O-206, Wetlands: Their Use and
Regulation 78 (Mar. 1984). The report noted that the Federal tax code provided numerous

32

deductions that gave farmers incentives to clear and drain wetlands for agricultural use.
Id. The report also concluded that several other federal programs, including cost sharing
and technical assistance in the U.S. Department of Agriculture’s Agricultural Conservation
Program, Farmers Home Administration Loans, Federal disaster payments and crop
insurance, and commodity programs provided incentives to farmers to clear and drain
wetlands. Id. at 78-81.
In 1985, the year after the OTA report, Congress included several important provisions in
the Food Security Act of 1985 (also known as the 1985 Farm Bill) to protect wetlands.
See Pub. L. 99-198, 99 Stat. 1509 (1985). The law created a Conservation Reserve
Program, which provides yearly rental payments to farmers (owners of highly erodible
cropland) who agree to remove their land from agricultural production for 10 - 15 years
and to plant vegetation that will improve the environmental health and quality of their land.
Id. § 1231. The program is administered by the Farm Service Agency within the U.S.
Department of Agriculture. See U.S. Department of Agriculture, Farm Service Agency,
Conservation Programs: Conservation Reserve Program. Since 1988, restoration of
cropped wetlands is one of the activities that is eligible for program participation. Although
the original law authorized enrollment of up to 45 million acres of highly erodible land in
the reserve, that limit was reduced to 39 million acres in the 2002 Farm Bill and 32 million
acres in the 2008 Farm Bill. The program provides about $2 billion to farmers each year
and, as of 2012, the program restored over 2 million acres of wetlands and reduced soil
erosion by more than 300 million tons per year. See U.S. Department of Agriculture, Farm
Service Agency, The Conservation Reserve Program: 45th Signup Results (Sept. 2013).
Perhaps the more significant provisions in the 1985 Farm Bill, though, were the
Swampbuster provisions. Congress included provisions in the law that disqualified
farmers from receiving all or a portion of Federal farm program benefits, including loans,
subsidies, crop insurance, and price supports, if they produced agricultural commodities
on converted wetlands. See 16 U.S.C. § 3821. The Swampbuster provisions were
strengthened in the Food Agriculture, Conservation and Trade Act of 1990 (also known
as the 1990 Farm Bill), which disqualifies farmers from receiving those benefits if they
convert wetlands for the purpose of, or with the effect of, making production of agricultural
commodities on them possible. See 16 U.S.C. § 3821(c). As noted in Chapters 1, supra,
and 4, infra, the Natural Resources Conservation Service delineates wetlands for
purposes of the Swampbuster provisions, see 28 U.S.C. § 3822, and uses a different
delineation manual than the manual used by the Corps of Engineers, EPA and the
Department of Interior. While the Natural Resources Conservation Service and the Farm
Service Agency administer the Swampbuster provisions, the Fish and Wildlife Service,
within the Department of Interior, provides technical assistance to those agencies, and
their relationship in administering the law is outlined in a 2002 Memorandum of
Understanding. See U.S. Department of Agriculture and U.S. Department of Interior,
Memorandum of Understanding Regarding Implementation of the 2002 Farm Bill

33

Conservation Provisions (Aug. 6, 2002).
Subsequent farm bills created additional wetland conservation programs. For instance,
the 1990 Farm Bill created the Wetlands Reserve Program, which provided money and
technical assistance to farmers and other landowners to protect, enhance and restore
wetlands on their property. See 16 U.S.C. §§ 3837 - 3837f. Landowners could enroll in
the program by placing a permanent conservation easement or a 30 year conservation
easement on their property, in which case they were fully or partially (for the 30 year
easement) compensated for the value of the easement and received funding to cover the
restoration costs. Id. § 3837a. If the landowners did not prefer to place a conservation
easement on their property, they could still enroll their land in the program, but they only
received funding to cover the restoration costs. Id. In the first twenty years of the program,
which was administered by the Natural Resources Conservation Service (NRCS), more
than 11,000 landowners participated, enrolling more than 2.3 million acres of wetlands.
See U.S. Department of Agriculture, Natural Resources Conservation Service, Restoring
America’s Wetlands: A Private Lands Conservation Success Story. The program was
replaced, in the 2014 Farm Bill, by an Agricultural Conservation Easement Program,
also administered by NRCS, which includes a Wetland Reserve Easement program and
an Agricultural Land Easement program. In the Wetland Reserve Easement program,
landowners place permanent easements, 30 year easements, or shorter term easements
on wetlands in exchange for compensation for the easement and funding to cover wetland
restoration costs. Id.
The Federal Agricultural Improvement and Reform Act of 1996 (the 1996 Farm Bill or
Freedom to Farm Act) created the Wildlife Habitat Incentive Program (WHIP) and the
Environmental Quality Incentive Program (EQIP), both of which are administered by
the Natural Resources Conservation Service. See Pub. L. 104-127, 100 Stat. 888 (1996).
The Wildlife Habitat Incentive Program provided funding and technical assistance to
landowners to develop wildlife habitat on private agricultural land, nonindustrial private
forest land, and tribal lands, see 16 U.S.C. § 3839bb-1, but was not re-authorized when
Congress enacted the 2014 Farm Bill. The Environmental Quality Incentives Program
provides financial and technical assistance to agricultural producers to plan and
implement conservation practices and related projects. See 16 U.S.C. §§ 3839aa 3839aa-9. Landowners sign contracts for a term between one and ten years. Id.
§ 3839aa-2.
Congress has also created other wetland conservation programs independent of farm
bills. For instance, the North American Wetlands Conservation Act of 1989 created a
program to provide matching grants to organizations and individuals who are partnering
to carry out wetlands conservation projects in the U.S., Mexico, or Canada. See 16 U.S.C.
§§ 4401 - 4414. Between 1998 and 2018, the program provided about $1.6 billion to more
than 6,000 partners, who contributed about $3.3 billion in matching funds, affecting more

34

than 27.5 million acres of habitat. See U.S. Department of the Interior, U.S. Fish and
Wildlife Service, Division of Bird Habitat Conservation, North American Wetlands
Conservation Act. Congress created another wetlands conservation grant program in the
Coastal Wetlands Planning, Protection, and Restoration Act of 1990. The National
Coastal Wetlands Conservation Grant Program is administered by the Fish and
Wildlife Service and provides grants to States and Territories to protect, restore, and
enhance coastal habitats. See 16 U.S.C. §§ 3951 - 3956. From the time the program was
created through early 2013, about $183 million in grants were awarded to 25 States and
one U.S. territory to acquire, restore or protect 250,000 acres of coastal wetland
ecosystems. See U.S. Department of the Interior, U.S. Fish and Wildlife Service, National
Coastal Wetlands Conservation Grant Program. Finally, in 2006, Congress passed the
Partners for Fish and Wildlife Act, which creates a program to provide financial and
technical assistance to landowners and Tribes for projects in a variety of habitats to
conserve or restore vegetation, hydrology and soils associated with imperiled
ecosystems, including bottomland hardwoods, marshes, rivers, streams and a variety of
other habitats, including ecosystems that provide habitat for a rare, declining or protected
species. See U.S. Department of the Interior, U.S. Fish and Wildlife Service, Partners for
Fish and Wildlife Program. Between 1987 and 2010, the program restored and enhanced
over 1 million acres of wetlands. See U.S. Department of the Interior, U.S. Fish and
Wildlife Service, Partners for Fish and Wildlife Program: Regional Showcase
Accomplishments: Fiscal Year 2010 at 2.
The following chart summarizes the variety of economic incentive programs for wetlands
conservation:
Program

Agency

Recipients

Type of
Assistance

Requirements

Conservation
Reserve
Program

USDA Farm
Service
Agency

Farmers

Rental payments
for 10-15 years

Remove land from
agricultural production
and vegetate to improve
the environmental health
and quality of the land

EQIP

USDA –
NRCS

Agricultural
Producers

$$$ and Technical
Assistance

Plan and implement
conservation projects
and related projects

Land and
Water
Conservation
Fund

DOI National
Park
Service

Federal,
State and
Local
Governments

$$$

Conservation projects,
including purchase of
land for conservation

National
Coastal

DOI - FWS

States and
Territories

Grants

Protect, restore or
enhance coastal habitats

35

Wetlands
Conservation
Grants
North
American
Wetlands
Conservation
Act Grants

DOI - FWS

Organizations
and
Individuals

Grants

Wetlands conservation
projects in the U.S.,
Mexico or Canada

Partners for
Fish and
Wildlife

DOI - FWS

Landowners
and Tribes

$$$ and Technical
Assistance

Conservation or
restoration of wetlands
and other habitats

Water Bank
Act

USDA /
DOI

Landowners

Annual payments
for a 10 year term

Preserve wetlands and
protect wildlife habitat

WHIP
(Eliminated in
2014 Farm
Bill)

USDA –
NRCS

Landowners:
Private
agricultural;
Private
forestland;
Tribal land

$$$ and Technical
Assistance

Develop wildlife habitat
on the land

Agricultural
Conservation
Easement
Program

USDA –
NRCS

Landowners
and Tribes

$$$ and Technical
Assistance

Protect, enhance, or
restore wetlands and
place a conservation
easement on the land

Additional Resources
USDA Farm Service Agency Reports and Statistics
USDA NRCS Conservation Programs website
USDA NRCS Data and Reports and Data Mapper
USDA Video re: the History of the Conservation Reserve Program
USDA NRCS report re: WRP Successes
USDA NRCS Photo Gallery of WRP Restoration Projects
Land and Water Conservation Fund - Find Grants in Your Community

Questions and Comments
1.

Multiple agencies: Why do you think that Congress divided responsibility for
administration of the Section 404 permit program between the Corps of Engineers
and EPA in the manner that it did? What expertise and historical regulatory
authority did each have with regard to wetlands and water pollution? Does having
36

regulation divided between the Corps and the EPA make effective regulation more
difficult? Should only one agency have authority over regulation? Which one? See
Alyson C. Flournoy, Section 404 at Thirty-Something: A Program in Search of a
Policy, 55 Ala. L. Rev. 607 (2004); Sam Kalen, Commerce to Conservation: The
Call for a National Water Policy and the Evolution of Federal Jurisdiction Over
Wetlands, 69 N.D. L. Rev. 873 (1994); Michael C. Blumm and D. Bernard Zaleha,
Federal Wetlands Protection Under the Clean Water Act: Regulatory Ambivalence,
Intergovernmental Tension , and a Call for Reform, 60 U. Colo. L. Rev. 695 (1989).
This division has created some tension, as will be explored in the chapters in this
book that address jurisdiction over waters of the United States, delineation,
mitigation, and the EPA veto process, among others.
2.

Access to information: The Department of Interior and the Department of
Agriculture provide Internet access to significant amounts of data regarding their
wetlands programs. For instance, the Department of Interior provides a userfriendly mapping interface for its National Wetlands Inventory and convenient
access to information about grants provided through the Land and Water
Conservation Fund. Who are some of the audiences that might use that
information and how could it be used? To familiarize yourself with the tools, (a) find
the wetlands that are located near you and identify the type of wetlands; (b) find
the most recent grant awarded by the Land and Water Conservation Fund to a
project in your community.

3.

Swampbuster exemptions: Although the Food Security Act disqualifies farmers
from receiving various federal farm benefits or participating in various federal farm
programs if they produce agricultural commodities on converted wetlands, the
statute includes a grandfather provision that allows farming on wetlands that were
converted (or the conversion was commenced) to cropland prior to December 23,
1985 (the date of enactment of the law) as long as the wetlands did not exhibit
wetlands characteristics after the conversion. 16 U.S.C. § 3822(b)(1)(A). The
exemption applies even if the converted cropland once again exhibits wetland
characteristics due to various reasons outlined in the statute. Id. § 3822(b)(1)(G).
The statute or agency regulations also exempt farmers from disqualification for
farming artificial wetlands, farming that does not destroy natural wetland
characteristics or that has a minimal effect on wetland functions and values in the
area, or farming where the farmer has acted in good faith and without intent to
violate the law. Id. § 3822.

4.

Voluntary programs: What are some of the limitations to the effectiveness of
voluntary economic incentive programs as a tool to conserve and protect
wetlands? Is there a national plan or are there regional plans that identify the
ecosystems and resources to protect under the voluntary programs? Who

37

determines which wetlands and resources should be protected, and on what
criteria? How much wetland acreage can be protected under the programs? What
factors limit the amount of acreage? Where does the money to protect the
wetlands come from? Are there advantages to conservation easements over rental
payments and cost sharing? Advantages to loans versus grants? Is there strong
federal oversight of the projects? Several years ago, EPA’s National Center for
Environmental Economics prepared a comprehensive report on various
environmental economic incentive programs. See U.S. Environmental Protection
Agency, EPA-240-R-01-001, The United States Experience with Economic
Incentives for Protecting the Environment (Jan. 2001).
5.

The Clean Water Act Section 404 program is unusual in the sense that federal
environmental laws tend to avoid imposing mandates or restrictions on individual
behavior, although many environmental problems, such as climate change, are
caused primarily by individual lifestyle choices. See Stephen M. Johnson, Is
Religion the Environment’s Last Best Hope?: Targeting Change in Individual
Behavior Through Personal Norm Activation, 24 J. Envtl. L. & Litig. 119 (2009);
Michael P. Vandenbergh, From Smokestack to SUV: The Individual as Regulated
Entity in the New Era of Environmental Law, 57 Vand. L. Rev. 515 (2004). One of
the reasons that direct regulation of individual behavior frequently generates public
opposition is that direct regulation makes the costs of the regulation more
transparent than indirect regulation. See Katrina Fischer Kuh, When Government
Intrudes: Regulating Individual Behaviors That Harm the Environment, 61 Duke L.
J. 1111 (2012). While Professor Kuh reports that customer service surveys of
Section 404 permit applicants do not generally reveal animosity or opposition to
the program, she acknowledges that the permitting requirement can generate
opposition in specific cases because (1) it imposes burdens on the applicant that
create benefits for the public; and (2) it involves federal regulation of land use, a
traditionally local activity. Id. at 1142-1143.

6.

A program in flux: As you read this book, focusing on issues such as the
delineation of wetlands, federal jurisdiction over waters of the United States, the
divided responsibility of the Corps and EPA, and the implementation of
compensatory mitigation requirements, consider the following quote by Professor
Alyson Flournoy: “A review of the section 404 program’s evolution ... reveals a
program (and agency) perpetually in flux with a poorly defined goal.” See Alyson
C. Flournoy, Section 404 at Thirty-Something: A Program in Search of a Policy, 55
Ala. L. Rev. 607, 608 (2004). Is there a need for a different federal law to protect
wetlands? What might be done differently?

38

V.

International Wetlands Protection - U.S. Role

In 1971, 18 nations reached agreement on the terms of a treaty that committed the nations
to identify and protect “Wetlands of International Importance” and to plan for the “wise
use” (sustainable use) of all their wetlands. See Convention on Wetlands of International
Importance Especially as Waterfowl Habitat, Feb. 2, 1971, T.I.A.S. No. 1084, 996
U.N.T.S. 245 (amended 1982 & 1987). The Ramsar Convention, named for the city in
Iran that hosted the negotiations, came into force in 1975. See The Ramsar Convention
on Wetlands, A Brief History of the Ramsar Convention. As of October, 2014, 168 nations
signed on to the Convention. See The Ramsar Convention on Wetlands, Country Profiles.
The United States joined in 1987. Id. Two years later, Congress passed the North
American Wetlands Conservation Act of 1989, mentioned in the last section, to partially
implement the convention in the United States. Pursuant to the terms of the Ramsar
Convention, the Fish and Wildlife Service adopted a “Policy on Wetlands of International
Importance” in 1990. See 55 Fed. Reg. 13856 (Apr. 12, 1990). As of February, 2014, 36
sites in the United States were designated as wetlands of international importance. See
The Ramsar Convention on Wetlands, The Annotated Ramsar List: United States.
Research Problems
International Materials: International materials can be very difficult to locate, but the Ramsar Convention
website includes the governing documents and many other useful wetlands resources, including a site
database. See if you can answer the following questions after browsing through their website: (1) Which
wetlands were the first wetlands in the United States to be included on the Ramsar List of Wetlands of
International Importance? (2) In what year were they added to the list? (3) Which wetlands on the List of
Wetlands of International Importance are located closest to your home? Sounds like a good field trip
opportunity. February 2 is World Wetlands Day.

VI.

The Agencies That Regulate Wetlands

Although there are hundreds of agencies at the federal, state and local level that play
some role in the regulation or protection of wetlands, the four primary federal agencies
that are involved in wetlands protection are the U.S. Army Corps of Engineers (within the
U.S. Department of Defense), the U.S. Environmental Protection Agency, the U.S. Fish
and Wildlife Service (within the U.S. Department of Interior) and the Natural Resources
Conservation Agency (within the U.S. Department of Agriculture).
A.

Corps of Engineers

The Corps of Engineers is part of the Department of the Army, within the Department of

39

Defense. The Corps’ military leader, the Chief of Engineers, a three star general, reports
directly to the Assistant Secretary of the Army for Civil Works. See Melissa Samet,
American Rivers & National Wildlife Federation, A Citizens Guide to the Corps of
Engineers 10 (2009). The Corps has primary authority for issuing Section 404 permits,
including both individual permits and general permits, and is responsible for the day to
day administration of the permit program. The Corps also administers the Section 10
Rivers and Harbors Act permitting program. Both permitting programs are part of the
Department of the Army Regulatory Program.
The Corps’ headquarters is located in Washington, D.C., and the agency is divided
regionally into 9 Divisions, each of which is commanded by a Division Engineer. There
are 43 Districts within the 9 Divisions, each of which is commanded by a District Engineer.
Although regulations and general program policies are developed at the headquarters
level, other aspects of the Corps’ regulatory program are very decentralized, with most
permitting and enforcement decisions being made on a regional level. For instance, final
agency decisions on most administrative appeals are made by the Division Engineers.
See 33 C.F.R. § 331. General permits may also be issued on a regional basis, as well as
national basis. See Chapter 6, infra.
A map of the Corps’ Divisions and Districts is included below:

Photo 13 Corps of Engineers Map from http://www.usace.army.mil/Locations.aspx

40

For more information about the Corps, American Rivers and the National
Wildlife Federation have prepared a useful guide to the history and structure
of the agency and its programs. See Melissa Samet, American Rivers &
National Wildlife Federation, A Citizens Guide to the Corps of Engineers 10
(2009).

B.

Environmental Protection Agency

The Environmental Protection Agency is an independent agency within the Executive
Branch and it administers most of the nation’s environmental laws. For wetlands, EPA
developed the guidelines that are used to evaluate Section 404 permits, the agency
reviews and comments on the permits, and it can veto permits. See 33 U.S.C. § 1344(c).
EPA also shares wetlands enforcement authority with the Corps. See Chapter 10, infra.
EPA is headed by an Administrator and has its headquarters in Washington, D.C. See
U.S. Environmental Protection Agency, About EPA. The agency is divided into ten
regions, each of which is headed by a Regional Administrator. Development of
regulations and national policies on wetlands takes place in the Office of Water, within
EPA’s headquarters in Washington. However, daily administration of the agency’s
responsibilities related to permitting and enforcement under the 404 program takes place
in the regions, in coordination with headquarters. Unlike the Corps, though, EPA’s
administrative appeals are handled by an Environmental Appeals Board, headquartered
in Washington. In the event that there are disputes between EPA and the Corps regarding
individual permits, EPA’s Assistant Administrator for Water (head of the Office of Water),
makes final decisions regarding permit vetoes. A map of EPA’s regional office structure
is included below:

Photo 14 EPA Map from http://www2.epa.gov/aboutepa/visiting-regional-office

41

C.

U.S. Fish and Wildlife Service

The U.S. Fish and Wildlife Service is an agency within the Department of the Interior
(DOI). The agency is headed by a Director, who reports to the Assistant Secretary for
Fish, Wildlife and Parks in DOI, and it is divided into 8 regions. See U.S. Department of
the Interior, U.S. Fish and Wildlife Service, Our Regions. The agency reviews and
comments on Section 404 permits and Rivers and Harbors Act permits based on authority
in the Fish and Wildlife Coordination Act and the Clean Water Act. The agency also
administers the National Wetlands Inventory.
D.

Natural Resources Conservation Service

The Natural Resources Conservation Service is an agency within the Department of
Agriculture (USDA). It is headed by a Chief, who reports to the Under Secretary for
Natural Resources and the Environment in USDA, and it is divided into 4 regions, which
are headed by Regional Conservationists. See U.S. Department of Agriculture, Natural
Resources Conservation Service, National Headquarters Directory. The agency
administers the Swampbuster provisions of the Food Security Act and administers several
economic incentive programs for protection of wetlands on agricultural lands. See supra.
E.

U.S. Department of Justice, Environment and Natural Resources Division

While many disputes involving wetlands are resolved administratively, without going to
court, wetland litigation for the Corps, EPA and other federal agencies is handled by the
Environment and Natural Resources Division of the United States Department of Justice.
Within the Division, the Environmental Defense Section handles wetlands enforcement
as well as defense of most lawsuits against the Corps and EPA involving actions relating
to the Section 404 permitting program. For a history of the Division, see Richard J.
Lazarus, One Hundred Years of the Environment and Natural Resources Division, 41
ELR 10985 (Nov. 2011); U.S. Department of Justice, ENRD: Public Lands and National
Treasures: The First 100 Years of the Environment and Natural Resources Division
(2009).

42

Research Problems
Agency Contacts: You represent a landowner in Charleston, South Carolina, who is interested in
obtaining a wetlands permit from the Corps. You understand that the Regulatory Section of the Corps
issues those permits at the District level. What telephone number would you call for more information
about the permitting process? If you ultimately needed to appeal a decision of the District Office, to what
Divisional Office would you appeal?
Assume that your client lives in Langhorne, Pennsylvania, instead of Charleston, and that your client is
a neighbor of a developer who is filling wetlands without a permit. Your client wants to speak to someone
at EPA about the violation in their office, rather than on the phone. Where is the closest Regional Office
located?

Interview
Stephen Samuels, an Assistant Section Chief in the Environmental Defense
Section of the Environment and Natural Resources Division of the U.S.
Department of Justice, discusses:
•
•
•

The division of responsibility for wetlands litigation within the
Environment and Natural Resources Division (YouTube).
How the Environmental Defense Section represents multiple federal
agencies that may take conflicting positions on issues in litigation
(YouTube).
The role that DOJ's Environment and Natural Resources Division
plays in developing regulations and legislation, focusing specifically
on legislative and regulatory initiatives to clarify the scope of the
"waters of the U.S." (YouTube).

43

Hypothetical
Environmental law can be a complex area of practice. It often involves an intricate web of
federal, state and local laws, regulations and policies, and the disputes may focus on
complicated scientific principles. Consider that as you read the following dialogue between a
lawyer and a client regarding a wetlands matter. The lawyer has practiced family law for
twenty-five years and specializes in divorce cases. The client has retained the lawyer to
finalize the terms of the client’s third divorce.

Scene: Lawyer’s office in Whitefish, Montana
Client: Well, three times was not the charm. I guess I keep you pretty busy, don’t I?
Lawyer: I’m sure that you’ll find true love one of these days. But until you do, I’m happy to
help you move on with your life.
Client: Thanks. You do a great job and I’m very happy with your work, but I would like it if I
didn’t need to keep seeing you like this every few years. While I’m here, though, I had a
question about a different issue. Do you do any environmental law?
Lawyer: If someone’s got an environmental law question, it usually has some science in it. I
usually try to stay as far away from those as I can.
Client: I don’t think this one is that tough. Here’s the thing. You know that my daughter just
graduated from college with an environmental science degree.
Lawyer: That’s great. Congratulations.
Client: Thanks. Well, she’s visiting a few weeks ago and she tells me that she thinks that this
little ditch in my backyard is a wetland. I told her that I was going to be filling it in to build a
garage back there and she told me that I might need to get a permit to do that. She said
something about a Clean Water Act. Does the city require permits for things like that? I know
that I had to get a permit from P&Z when I re-built my deck, but I didn’t know that they made
you get permits to fill ditches.
Lawyer: Like I said. I really have never handled any environmental cases, so I’m not sure
about whether the city or anyone else would require a permit for that. My sister is a lawyer,
too, and she deals with a lot of environmental matters in her real estate practice. I’d give her
a call, but we’re not really talking right now. I’ve got a friend in town who does hazardous
waste law. He might know something about wetlands and I could probably call him, but he’s
on vacation until next week.
Client: Next week would be o.k. I’m not planning to do anything about the garage for a while,
but I just wanted to know if I would need to get a permit before I did anything.

44

Lawyer: I’ll do a little research on it, then, and get back to you. But you know, I really don’t
feel right about charging you for that, since I don’t really do environmental law. This one
will be on the house.
Client: Well, that’s nice of you, but I really would feel better if I paid you for it.
Lawyer: I insist. No charge on this one. I’ll look into it and get back to you as soon as I
can. And I should have those papers for the divorce ready for you to sign tomorrow.
Client: Thanks. So I’ll stop back tomorrow, then.
(Client leaves)
Lawyer: Sam, could you call Paul’s office and see if he has some time to talk about a
wetlands issue?
Sam (Lawyer’s assistant): I would, but he’s on vacation for the next month.
Lawyer: A month? I thought that he was getting back next week.
Sam: No. It’s a month. He rented an RV and took the family to see all of the national parks
in California.
Lawyer: Oh, well. I guess he won’t be any help, then. Pat, I’ve got some research for you
to do.
Pat (Lawyer’s paralegal): O.K. What do you need?
Lawyer: I need you to find out whether someone needs to get a permit to fill a ditch to build
a garage. Our client says that his daughter thinks that the ditch is a wetland and that the
Clean Water Act might require him to get a permit to fill the ditch.
Pat: I’ll get right on it.
(Pat does some research and returns)
Pat: Good news. I searched through the whole Clean Water Act online and it only mentions
wetlands a few times, but doesn’t say anything about requiring a permit to fill wetlands. It
does have a few different permit programs, but they are only triggered if there is an addition
of a pollutant to a navigable water. You said that the client was asking about a ditch, right?

45

Lawyer: Yeah. The client said a ditch. The client’s daughter said a wetland. Neither of them
said anything about a navigable water. I would imagine that a navigable water is something
that you can navigate, right?
Pat: Well, I checked the regulations, and it’s actually a little broader than that. It turns out
that it’s the federal government - EPA and the Army - that administer the Clean Water Act.
It’s not a local government thing. They’ve adopted regulations to define navigable waters. I
didn’t see anything in the regulations about ditches, though, so I think that our client can go
ahead and fill the ditch without worrying about getting a permit.
Lawyer: That’s great. Thanks for finding that so quickly. I guess this environmental law isn’t
that tough, after all. I’m sure our client will be happy to hear that they can go ahead and fill
the ditch. I’ll call the client right now and fill them in on the good news.
Lawyer (on the phone): Jordan, good news. I did some research on your wetlands issue
and it looks like you won’t need a permit. You can go ahead and get started on your garage
whenever you like….
Question
Were you troubled, in any way, by the lawyer’s representation of the client on the wetlands
issue in the scenario above? Is it relevant that the lawyer was not paid for the advice? What
should the lawyer have done differently? See American Bar Association, Model Rule of
Professional Conduct 1.1 (and accompanying comments).

Chapter Quiz
Now that you’ve finished Chapter 2, why not try a CALI Lesson on the material at:
http://cca.li/PR. It should only take about fifteen minutes.

46

Chapter 3
Administrative Law
The laws that protect wetlands in the United States are administered by the United States
Environmental Protection Agency (EPA), the United States Army Corps of Engineers (the
Corps), and a variety of other federal, state and local agencies. It is important, therefore,
to understand the basic principles of administrative law in order to comprehend the
nuances of federal and state wetlands protection laws. This Chapter provides a general
introduction to administrative agencies and administrative law. Although the Chapter
focuses primarily on federal agencies, state and local agencies are often governed by
state laws that closely resemble the federal laws.
I.

Nature of Administrative
Agencies

Resources
List of Federal Agencies from USA.gov and the
Federal Register
Administrative Conference of the U.S. (ACUS)
Office of Management and Budget (White House)
Sourcebook of U.S. Executive Agencies (ACUS)

Administrative agencies are ubiquitous.
Think, for a moment, about your typical
day. Your alarm clock wakes you to the
sounds of your favorite radio station. That
station is licensed and regulated by the
Federal Communications Commission, a
federal administrative agency. As you
jump into the shower, the water may be delivered to your home by a municipal or regional
water authority, a public utility, which is usually regulated by a state utility commission.
The water quality is regulated by federal and state environmental or health agencies.

When you go to the kitchen for breakfast and pour yourself a bowl of cereal, you’ll notice
that the cereal package includes nutritional labels required by the Food and Drug
Administration. In addition, the production of the ingredients in the cereal, and in most of
the other foods that you put on your breakfast table, is likely regulated by federal, state
and maybe local agricultural and environmental agencies. Those products were produced
by businesses that were required to adhere to fair labor standards and workplace safety
standards set by federal and state labor departments. The electricity in your home is most
likely provided by a utility that is regulated by federal and state energy, environmental and
labor agencies, as well as state utility commissions.
If you drive to work, the car that you are driving was also likely produced in a factory that
47

was subject to fair labor and workplace safety standards. In addition, the car was built to
comply with safety and environmental standards set by federal and state transportation
and environmental agencies. Indeed, it is hard to identify events in your daily routine that
are not touched, in some way, by administrative agency regulation.
Administrative agencies exist at the federal, state and local levels and are often referred
to as the “fourth branch” of government. As is obvious from the discussion above,
agencies exert broad authorities over public and private activities. Moreover, agencies
can take a variety of types of actions. First, agencies often create standards, limits or
other requirements that apply to the communities that they regulate (rulemaking). For
instance, an environmental agency may set limits on the amount of lead that can be
emitted into the air by a factory or a car. As another example, in the context of wetlands
regulation, the EPA and Corps establish rules that outline the requirements for obtaining
a permit to fill wetlands under the Clean Water Act. See Chapter 6, infra.
In addition to setting standards and making rules, agencies apply the law and the rules
that they make to specific factual situations on a case-by-case basis (adjudication). In
the wetlands context, for instance, the Corps decides whether to issue or deny a wetlands
permit, and what conditions to include in the permit, by applying the Clean Water Act and
its regulations to the developer’s proposed activity. See Chapter 6, infra. Similarly, the
Corps or EPA can bring an administrative or judicial enforcement action against a person
when the agency determines that the person’s activities violate the Clean Water Act
and/or the agency’s regulations. See Chapter 10, infra.
In order to create rules and to make decisions on a case-by-case basis, agencies also
collect information from the regulated community and other sources. They maintain that
information, make much of it available to the public and often create reports based on the
information.
Consequently, administrative agencies engage in activities that can be characterized as
legislative (setting standards and establishing other rules), judicial (applying the law to
facts on a case-by-case basis) and executive (implementing and administering the law).
This combination of functions in federal administrative agencies creates some
tensions, because the United States Constitution exclusively assigns these functions to
other branches of government. Article I of the Constitution creates the Legislative Branch,
and provides that “[a]ll legislative powers herein granted shall be vested in a Congress of
the United States.” U.S. Const., Art. I. Similarly, Article III creates the Judicial Branch, and
provides that “[t]he judicial power of the United States shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from time to time ordain and
establish.” U.S. Const., Art. III. Finally, Article II of the Constitution provides that “[t]he
executive power shall be vested in a President of the United States.” U.S. Const., Art. II.
In contrast to those direct statements, there is no provision in the Constitution that

48

explicitly creates or authorizes the creation of administrative agencies or authorizes them
to carry out the powers delegated to the legislative, judicial or executive branches of
government. Similar separation-of-powers concerns can arise under state constitutions,
which also do not explicitly provide for state administrative agencies.
Nevertheless, agencies have flourished throughout the twentieth and twenty-first
centuries and courts have generally upheld most delegations of authority to agencies
against constitutional challenges, as discussed further below.
II.

Limits on Agency Authority

A.

Statutory Limits

Agencies are created by statutes. The composition of agencies, their authorities, and any
limits on their authorities are set forth in legislation. Congress or a state legislature often
initially creates an agency through an “organic statute,” but the legislature frequently
expands or limits the agency’s powers through other statutes that target the specific
agency or statutes that apply generically to a group of agencies or to all agencies. For
example, EPA was initially created by a Presidential Reorganization Plan that reassigned
responsibilities of other federal administrative agencies to EPA, see Office of the
President, Reorganization Plan No. 3 of 1970 (July 9, 1970), but Congress subsequently
passed dozens of laws that expanded or limited EPA’s authority to regulate various
activities. As noted throughout this book, the Clean Water Act, 33 U.S.C. §§ 1251, et seq.,
establishes most of the authorities and limits on authority for wetlands regulation by EPA
and the Army Corps.
As noted above, Congress frequently authorizes, and sometimes requires, agencies to
set standards or to promulgate rules that apply generally to persons or entities regulated
by the statute. There are several reasons why Congress gives this power, which seems
like law-making authority, to agencies. In some cases, the legislature simply does not
have the time to set standards at the level of detail that is necessary to implement the
law. For instance, the Clean Water Act imposes limits on hundreds of different types of
industries regarding the amount of potentially hundreds of different types of pollutants
that they might discharge based on technologies that those industries can use to reduce
or eliminate those pollutants. See U.S. Environmental Protection Agency, Water: Industry
Effluent Guidelines. When Congress created the program limiting those pollutants, it
delegated to the EPA the authority to establish specific numerical limits on the industries
through a rulemaking process, rather than trying to establish those thousands of
numerical limits in the statute itself. See 33 U.S.C. § 1311.
In addition to not having the time to enact detailed standards, Congress also may not
have the expertise to determine what specific numerical standards may be appropriate

49

for specific industries. Although the legislature will likely have some experts on staff, they
will not have the resources that are available to an administrative agency, which will also
have the experience of implementing the law on a day-to-day basis. Continuing with the
Clean Water Act example, because an agency may be better equipped to determine the
specific numerical pollutant limits, Congress will often give the agency general directions
regarding how to set those numerical limits but allow the agency to establish the limits
through a rulemaking process.
There are a few other reasons why Congress frequently delegates authority to agencies
to make rules. To the extent that regulatory restrictions in a law are based on specific
technological, economic, or other assumptions that are in existence at the time the
restrictions are put in place, those restrictions may no longer be appropriate when the
technological, economic or other circumstances change. If Congress were to have set the
regulatory restrictions by statute, Congress could only change the restrictions by enacting
another statute. When Congress delegates the authority to an agency to set the
restrictions through rulemaking, however, the agency can respond to changing
circumstances by changing the requirements through rulemaking, as opposed to waiting
for legislative consensus. In theory, the rulemaking process should be faster than the
legislative process. In practice, that is not always true.
A final reason why Congress may delegate authority to an agency to make rules, rather
than setting the standards directly through legislation, is that Congress may lack the
political will to set the standards itself. Delegating to an agency the authority to set
specific standards gives Congress political cover from difficult political issues in
implementation of the legislation.
B.

Constitutional Limits

While agencies are created by statute, Congress cannot
amend the Constitution simply by enacting a statute.
Consequently, at the dawn of the era of administrative law,
opponents of agency rulemaking frequently asserted that
the delegation of rulemaking authority to an agency
violated constitutional separation of powers principles,
on the basis that Article I vests legislative powers
exclusively in Congress. The United States Supreme
Court outlined the limits of Congress’ authority to delegate Photo 15 National Archives
rulemaking authority to agencies in J.W. Hampton, Jr. & http://commons.wikimedia.org/wiki/
Co. v. United States, 276 U.S. 394, 409 (1928), when the File:Constitution_Pg1of4_AC_icon_
cut.png
Court held that Congress could constitutionally delegate
ratemaking authority as long as it set forth “by legislative act an intelligible principle to
which the person or body authorized to fix rates is directed to conform.” Thus, as long as

50

Congress provides a very general standard for the agency to use to set more specific
standards, courts will uphold the statutory delegation of rulemaking authority against a
Constitutional challenge. The Supreme Court has not struck down a federal statute on
the grounds that it constituted an excessive delegation of legislative authority since 1935,
when it invalidated codes of fair competition established under the National Industrial
Recovery Act in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
Since that time, the Court has upheld broad delegations of authority, including the
authority to set “just and reasonable rates”, see FPC v. Hope Natural Gas Co., 320 U.S.
591 (1944), to set prices that are “fair and equitable”, see Yakus v. United States, 321
U.S. 414 (1944), and to regulate licensing “as public interest, convenience, or necessity
require.” See National Broadcasting Co. v. United States, 319 U.S. 190 (1943). In a more
recent decision in the environmental arena, the Supreme Court upheld the Clean Air Act
delegation of authority to EPA to set “ambient air quality standards the attainment and
maintenance of which in the judgment of the Administrator, based on such criteria and
allowing an adequate margin of safety, are requisite to protect the public health.” See
Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001).
The delegation of adjudicative authority to agencies has also been challenged as a
violation of separation of powers principles. Because Article III vests all judicial power
in the Article III courts, critics have argued that the delegation of authority to agencies to
apply the law to facts on a case-by-case basis to issue or deny permits, to impose
penalties, or to take other adjudicative actions violates the Constitution. A discussion of
the case law interpreting the constitutional limits on the delegation of adjudicative
authority to agencies is beyond the scope of this book. In the wetlands context, however,
most final administrative adjudications can be challenged at some point in an Article III
court, so the separation of powers issue has not proven problematic in the context of
federal wetland regulation.
C.

Limits Imposed by Other Branches

Although agencies are referred to as the “fourth branch” of government, the other
branches can influence agencies actions in a variety of ways. Because the source and
limits of agencies’ powers are set by statute, Congress can exert significant influence
over agencies by passing laws that reduce or eliminate agencies’ powers if Congress
opposes actions taken by agencies. Similarly, agencies rely on annual appropriations
legislation from Congress to fund their activities, so Congress can exert influence over
agencies by decreasing, or threatening to decrease, an agency’s budget. In the wetlands
context, Congress has frequently attached riders to appropriations legislation that limit
the authority of the Corps to implement policies with which Congress disagrees. See
Chapter 4, infra. In addition to those powers, the Senate has the power to approve the
appointment of “officers,” which can include high ranking agency officials. See
U.S. Const., Art. II, § 2. The Senate may block or delay appointments of those officials if

51

the Senate opposes the potential candidate or, sometimes, if the Senate opposes the
policies that have been adopted by the agency. Even when Congress does not actually
exercise any of these powers, it can exert control over agencies by threatening to exercise
them. Congress frequently holds oversight hearings, calling agency leaders to testify
regarding actions taken by the agency or to testify regarding proposed legislative
changes.
The President also exerts control and influence over agencies, including the Corps and
EPA. The White House has ultimate control over the budget, legislative proposals, and
litigation positions taken by Executive Branch agencies. Although the agencies can
develop budget requests, the requests are coordinated through the White House Office
of Management and Budget (OMB) and the White House makes the ultimate decision
regarding the amount of funds to request for each agency. Similarly, agencies cannot
work with legislators independently to advance legislative proposals to expand their
authorities or eliminate responsibilities. Legislative proposals, like budget requests, must
be coordinated through the OMB. OMB also reviews major regulations developed by
agencies, as well as regulatory agendas and various guidance documents prepared by
agencies. For litigation, Executive Branch agencies are generally represented by the
Department of Justice, so the White House also can exert some control over the positions
taken in litigation by agencies. The President also has the power to appoint and remove
officers of the United States, which includes high ranking agency officials. See
U.S Const., Art. II, § 2.
One of the more formal ways that the President controls Executive Branch agencies is
through the issuance of Executive Orders. Executive Orders are not laws; instead, they
direct agencies, where agencies have discretion, to implement policies, take actions, or
follow procedures outlined in the order. Because an Executive Order is not a law, it cannot
change existing law, but it can influence the manner in which agencies exercise discretion
afforded to them under existing laws. Executive Orders cannot be challenged in court, but
some orders have been held to be enforceable in administrative proceedings. Over the
years, Presidents have issued several Executive Orders that apply to the development of
wetlands regulations and other regulations, including an Executive Order that requires
agencies to weigh the costs and benefits of major rules, see Executive Order 12866, 58
Fed. Reg. 51735 (Oct. 4, 1993), and an Executive Order that requires agencies to
consider whether their actions may unconstitutionally “take” property. See Executive
Order 12630, 53 Fed. Reg. 8859 (Mar. 15, 1988).

52

The judicial branch also exerts control. Because the courts
have the ultimate authority to adjudicate disputes involving the
Clean Water Act and other wetlands protection laws, the
judicial branch can limit agencies by invalidating their actions if
they misinterpret the law, fail to follow procedures required by
statutes, regulations, or the Constitution, or make decisions
that are unreasonable. Those limits are explored more fully in
the judicial review section of this Chapter.
Photo 16 By Matthew Trump
http://commons.wikimedia.org/wiki/File:D
SCN2559_jacksoncountycourthouse_600.jp
g distributed under GNU Free
Documentation License v 1.2

III.

Procedural Requirements for Agency Action

Although agencies engage in a variety of different activities, most agency actions can be
categorized as either rulemaking or adjudication. As noted above, adjudication involves
the application of law to a specific set of facts, while rulemaking involves establishing a
general standard or obligation that applies broadly and prospectively. The Administrative
Procedures Act (APA), the federal statute that establishes the procedures that all
agencies must follow and that outlines the manner in which agency actions can be
challenged in court, defines a “rule” as “the whole or a part of an agency statement of
general or particular applicability and future effect designed to implement, interpret, or
prescribe law or policy or describing the organization, procedure, or practice requirements
of an agency ...” 5 U.S.C. § 551(4). The Act defines “adjudication”, as “agency process
for formulation of an order”, 5 U.S.C. § 551(7), and defines “order” as “the whole or a part
of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of
an agency in a matter other than rule making but including licensing.” 5 U.S.C. § 551(6).
Although rulemaking and adjudication are distinct categories of agency actions, an
agency can generally interpret and clarify ambiguous provisions of a statute either
through rulemaking or in an adjudication, if Congress has given the agency both powers
and has not required the agency to use a specific procedure to interpret the statute. See
Securities and Exchange Commission v. Chenery, 332 U.S. 194 (1947).
Within the broad category of rulemaking, an agency’s rules can be divided into
legislative rules (sometimes called “substantive rules”) and non-legislative rules.
When Congress, in a statute, authorizes an agency to makes rules that have the force of
law and the agency adopts rules pursuant to that statutory authority, following the required
administrative procedures (generally known as “notice and comment” rulemaking), the
rules are legislative rules. For example, the Clean Water Act authorizes EPA to issue
any regulations that are necessary to carry out the agency’s functions under the Act, see

53

33 U.S.C. § 1361(a), and authorizes the Corps to adopt regulations to implement the
Section 404 permit program. See 33 U.S.C. § 1344. Thus, when EPA adopts rules to
clarify the meaning of the statutory term “waters of the United States,” which is not defined
in the Clean Water Act, EPA’s rules are legislative rules. Similarly, the Corps’ section
404 permitting regulations, the 404(b)(1) Guidelines adopted by EPA, with the Corps, and
the compensatory mitigation regulations adopted by EPA and the Corps are legislative
rules.
While agencies with legislative rulemaking authority can adopt legislative rules, there are
times when an agency does not have legislative rulemaking authority or when an agency
has that authority but prefers not to exercise it. In those situations, agencies can still
interpret a statute through a non-legislative rule. Agencies may choose to interpret
statutes through non-legislative rules for a variety of reasons. First, as will be discussed
below, agencies must follow certain procedures when adopting legislative rules, but are
subject to very few procedural requirements when adopting non-legislative rules.
Because the legislative rulemaking procedures may be time consuming, an agency may
decide to issue a non-legislative rule in order to announce its interpretation of the law
more quickly. An agency might also decide to use a non-legislative rule because the
agency is still uncertain about its interpretation of the statute and would like to retain the
flexibility to change that interpretation without going through a legislative rulemaking
process, which it would be required to do if it wanted to change a legislative rule. In
addition, because a non-legislative rule is often not a “final agency action,” an agency can
also generally avoid legal challenges to the rule in court.
Non-legislative rules are issued in a variety of forms, including interpretative rules, policy
statements, guidance documents, and enforcement manuals, among others. In the
wetlands context, the Corps issues many legal and policy interpretations in the form of
Regulatory Guidance Letters. The delineation manual discussed in Chapter 1 is another
example of a non-legislative rule. In addition, important wetlands legal and policy
directives of EPA, the Corps, and other federal agencies are included in Memoranda of
Agreement and Memoranda of Understanding discussed throughout this book. Federal
administrative agencies, across the board, have increasingly interpreted statutes through
guidance documents and other non-legislative rules because of the advantages outlined
above.
While an agency can save time, avoid litigation, and retain flexibility by interpreting a
statute through a non-legislative rule, legislative rules have two distinct advantages
over non-legislative rules. First, legislative rules have the force of law and agencies do
not have to independently justify the basis for the rule when applying it to a specific factual
setting. Non-legislative rules, on the other hand, are not binding on the agency or the
regulated community. An agency must justify the basis for the legal or policy interpretation
adopted in the non-legislative rule when applying it to a specific factual setting. The

54

second important advantage that legislative rules have is that courts will accord an
agency more deference when reviewing the statutory interpretation adopted by the
agency in a legislative rule than in a non-legislative rule. The different standards of judicial
review that apply to legislative and non-legislative rules are discussed in the judicial
review section of this Chapter.

Advantages of Legislative v. Non-Legislative Rules
Legislative Rules

Non-Legislative Rules

Force of Law

Fewer Procedures (Quicker)

Greater Judicial Deference

Easier to Change (More Flexible)
Harder to Challenge in Court

A.

Rulemaking Procedures

Resources
OIRA - Rulemaking Primer
OMB’s Reginfo website (Track regulations)
Regulations.gov (Online rulemaking)
Regulation Room (Cornell e-rulemaking project)
Congressional Research Service report on
Rulemaking and Judicial Review (2011)
Congressional Research Service report re: number of
rules issued by agencies (2013)

The procedures that agencies must
follow when adopting rules or making
decisions through adjudication are set
by the APA, which applies to all federal
agencies, but can be modified by
specific statutes, such as the Clean
Water Act. The APA requires agencies
to follow either formal rulemaking
procedures or informal (“notice and comment”) rulemaking procedures when adopting
legislative rules, see 5 U.S.C. § 553, but it exempts non-legislative rules from those
procedural requirements. Id. § 553(b)(3)(A). Formal rulemaking involves a trial-type
hearing before an administrative law judge, who makes a decision based on a record
presented at the hearing. See 5 U.S.C. §§ 556 - 557. An agency must adopt rules through
formal rulemaking only when the statute that authorizes the agency to make rules requires
the agency to make the rules “on the record after opportunity for an agency hearing.” See
5 U.S.C. § 553(c). Courts rarely interpret statutes to require formal rulemaking and have

55

not interpreted the Clean Water Act to require formal rulemaking for the regulations
adopted by the Corps or EPA.
If an agency is not required to follow formal rulemaking procedures when adopting
legislative rules, the agency must follow the APA’s informal rulemaking procedures.
For informal rulemaking, the APA requires agencies to begin the process by publishing a
notice of proposed rulemaking in the Federal Register, including the terms or
substance of the proposed rule, a reference to the legal authority for the rule, and a
statement of the time, place and nature of public rulemaking proceedings. See 5 U.S.C.
§ 553(b). The agency is not required to hold public hearings, although it can, but the
agency is required to provide interested persons an opportunity to comment on the
proposed rule. Id. § 553(c). Unlike formal rulemaking, therefore, there is no formal record
for the agency’s decision and the agency can rely solely on written submissions in
formulating its rule. At the end of the comment period, the agency reviews the public input
and decides whether to make any changes to the proposed rule based on the comments
that the agency received. When the agency has finalized the rule in light of the public
input, the APA requires the agency to provide a “concise general statement of [the] …
basis and purpose” of the rules, which the agency publishes with the final rule in the
Federal Register. Id. Agencies do not have to change rules based on the public input, but
they must consider the comments, respond to the major comments and identify the “major
issues of policy” that they considered in formulating the rule. See United States of America
v. Nova Scotia Food Products Corp., 568 F.2d 240 (2d Cir. 1977).
Today, significant portions of the notice-and-comment process take place online, and
interested persons are able to view comments submitted by other persons during the
comment period, as well as significant amounts of information that the agency relied on
in preparing a proposed rule that would not have been as readily accessible before
agencies began to carry out the notice and comment process online. See
Regulations.gov.
While the APA establishes procedures for legislative (or substantive) rules, it does not
require agencies to follow any specific procedures when adopting non-legislative rules.
Agencies generally develop such guidance with very little input from the public or notice
to the public. Although the APA does not require agencies to follow procedures in
developing non-legislative rules, the Freedom of Information Act (FOIA) requires federal
agencies to publish, in the Federal Register, “statements of general policy or
interpretations of general applicability formulated and adopted by the agency.” See 5
U.S.C. § 552(a)(1)(D). In addition, FOIA requires agencies to make available to the
public other statements of policy or interpretations that haven’t been published in the
Federal Register, as well as “administrative staff manuals and instructions to staff that
affect a member of the public.” Id. § 552(a)(2).

56

Congress can impose additional procedural requirements on the development of
legislative or non-legislative rules by agencies and, when it does, the rulemaking process
is referred to as hybrid rulemaking. However, the Clean Water Act does not require EPA
or the Corps to follow additional procedures beyond the APA’s when adopting regulations
and guidance under the statute.

APA Procedural Requirements for Rulemaking
Legislative Rules Formal Rulemaking

Legislative Rules Informal Rulemaking

trial-type hearing
before an ALJ;
decision “on the
record”
5 U.S.C. § 556, 557

notice; opportunity for
comment; publication of
final rule with a concise
general statement of the
basis and purpose
5 U.S.C. § 553

57

Non-Legislative Rules
publish or make available
5 U.S.C. § 552

Research and Drafting Exercise
Most federal agencies post proposed and final rules, as well as guidance documents and other
important public information on their websites. In addition, many federal agencies post proposed
rulemakings and documents that support the proposed rulemakings online and allow interested
persons to comment online through Regulations.gov Those agencies also make the final rules,
supporting documents and comments available on Regulations.gov Guidance documents and other
agency materials are also posted on Regulations.gov
1. In 2014, EPA and the Corps of Engineers issued a notice of proposed rulemaking to re-define
“waters of the United States” under the Clean Water Act. The proposal was posted on
Regulations.gov on April 21, 2014. Search Regulations.gov to find the EPA docket for the proposed
rule. When you find it, click on the “Open Docket Folder” link. This lists all of the documents that were
posted that are associated with the rulemaking. Who were the agency contacts for the rule?
2. Review the proposed rule and identify: (a) the legal authority for the rule adopted by EPA and the
Corps; (b) the length of the comment period; (c) the proposed definition of “waters of the United
States” that would be included in 33 C.F.R. § 328.3(a); (d) whether EPA or the Corps prepared an
environmental impact statement or an environmental assessment for the proposed rulemaking.
3. In the supporting documents for the proposed rule, review the economic analysis prepared for the
rule and identify the total low and high estimated incremental annual indirect costs and benefits of the
proposed rule (per Exhibit 16). Does EPA estimate that benefits of the rule will be greater than the
costs?
4. To get a flavor for the nature of public comments submitted in notice and comment rulemaking,
search for the docket for the Federal Motor Carrier Safety Administration’s (FMCSA) rule restricting
the use of cellular phones by drivers of commercial vehicles. (FMCSA-2010-0096). When you find
that docket, click on the “Open Docket Folder” link and browse through some of the comments
submitted to FMCSA for the rule. Compare, for instance, the comments submitted by Robert Paul
Smith or Wildon Clyde Renn III, and those submitted by Edison Electric Institute or the Alliance of
Automobile Manufacturers. Review the “Tips for Submitting Effective Comments” on the
Regulations.gov page. After reviewing those tips, do you think that the comments of Mr. Smith or the
Edison Electric Institute are likely to be more effective?
5. Draft a comment on a proposed rulemaking that you find on Regulations.gov and identify the
rulemaking for which the comment is being submitted. DO NOT SUBMIT THE COMMENT ONLINE!!
Think about the “Tips for Submitting Effective Comments” as you draft your comment.

58

B.

Adjudication Procedures

Just as the APA establishes minimum procedural requirements for federal agency
rulemaking, it also establishes minimum procedural requirements for adjudication. As
with rulemaking, the APA creates distinct procedural requirements for formal
adjudication and for informal adjudication. See 5 U.S.C. § 554. The APA requirements
for formal adjudication are similar to the requirements for formal rulemaking and include
a trial-type hearing before an administrative law judge, who makes a decision based on
a record presented at the hearing. See 5 U.S.C. §§ 554, 556 - 557.
In contrast to the requirements for formal adjudication, the APA includes minimal
requirements for informal adjudication. If an agency is denying a written application,
petition or request of a person, the statute requires the agency to give the person “prompt
notice” and “a brief statement of the grounds for denial.” 5 U.S.C. § 555(e). The APA does
not include any other procedural requirements for informal adjudication, but FOIA requires
agencies to “make available for public inspection and copying” any “final opinions ... as
well as orders, made in the adjudication of cases.” Id. § 552(a)(2)(A).
Agencies must follow the APA’s formal adjudication procedures whenever a statute
requires the agency to make a decision in adjudication “on the record after opportunity
for an agency hearing.” See 5 U.S.C. § 554(a). Although formal adjudication is much more
common than formal rulemaking, courts have not interpreted the Clean Water Act to
require the Corps or EPA to use formal adjudication procedures when taking most actions
involving wetland regulation under the Clean Water Act, including issuing or denying
permits, vetoing permits, or approving or denying a state’s request to assume federal
permitting authority. However, the agencies must use formal adjudication procedures
when they are imposing Class II penalties, the most severe form of administrative
penalties that the Clean Water Act authorizes. See 33 U.S.C. § 1319(g)(2)(B).

59

Hypotheticals
1. 33 U.S.C. § 1361 provides that "[t]he [EPA] Administrator is authorized to prescribe
such regulations as are necessary to carry out his functions under [the Clean Water
Act.]" If EPA planned to issue rules under the Clean Water Act to define the undefined
statutory term "waters of the United States", would the agency be required to follow the
trial-type procedures in 5 U.S.C. §§ 556 and 557 when issuing those rules?
2. 33 U.S.C. § 1317(b)(1) provides that "[t]he [EPA] Administrator shall, within one
hundred and eighty days after October 18, 1972, and from time to time thereafter,
publish proposed regulations establishing pretreatment standards for ... [sewage
treatment plants]. Not later than ninety days after such publication, and after
opportunity for public hearing, the Administrator shall promulgate such pretreatment
standards. ..." Does the statute require EPA to use formal rulemaking procedures or
notice and comment rulemaking when promulgating pretreatment standards?
3. 33 U.S.C. § 1344(a) provides that "[t]he Secretary [of the Army] may issue permits,
after notice and opportunity for public hearings for the discharge of dredged or fill
material into the navigable waters at specified disposal sites." Does the statute require
the Secretary to follow the trial-type procedures in 5 U.S.C. §§ 556 and 557 when
issuing permits?
4. 33 U.S.C. 1344(i), which focuses on federal oversight of states that have taken over
administration of the Clean Water Act Section 404 permitting program, provides that
"Whenever the Administrator determines after public hearing that a State is not
administering a program approved under ... this section, in accordance with this
section, the Administrator shall so notify the State, and if appropriate corrective action
is not taken within a reasonable time, ... the Administrator shall ... withdraw approval of
such program until the Administrator determines such corrective action has been
taken..." Does the statute require EPA to use formal adjudication procedures when
determining that a State is not administering a permitting program in accordance with
Section 404 of the Clean Water Act? Does the statute require EPA to use formal
adjudication procedures when determining that the State has taken corrective action
and may take over administration of the permitting program again?

IV.

Judicial Review of Agency Action

A.

Prerequisites for a judicial challenge

In order to challenge an agency action in court, a litigant must generally demonstrate, at
a minimum, that: (1) the action is reviewable; (2) the court has jurisdiction to hear the
litigant’s challenge and grant the requested relief; (3) the government has waived

60

sovereign immunity and authorized the suit; and (4) the litigant has standing to sue.
In addition to establishing minimum procedural requirements for federal agencies, the
APA creates the general framework for judicial review of federal agency actions. It
provides that a “final agency action for which there is no other adequate remedy in a court
..[is] subject to judicial review,” 5 U.S.C. § 704, and “[a] person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. As a
result, “final agency actions” are presumptively reviewable in court. Chapter 10 of this
book outlines the actions of the Corps and EPA that are “final agency actions” that are
reviewable under the APA. The APA’s judicial review provisions, including the
presumption of reviewability, do not apply when a statute precludes judicial review or
when an agency action is committed to agency discretion by law, see 5 U.S.C.
§ 701(a), but neither of those exceptions have significantly limited judicial review of the
EPA’s or the Corps’ actions in implementing the federal wetlands protection program.
Those exceptions are examined in more detail in Chapter 10 of this book.
The APA does not grant subject matter jurisdiction to any court to hear the challenges
that it makes reviewable, so litigants must rely on another statute to demonstrate
jurisdiction. If the statute that authorizes the agency to take the action that a litigant wants
to challenge does not include a provision that grants jurisdiction to a court to hear
challenges to that action, litigants can frequently rely on 28 U.S.C. § 1331 (the general
federal question jurisdiction statute) or other general jurisdictional statutes to establish
jurisdiction for their lawsuit. The general federal question jurisdiction statute provides
“[t]he district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” Id. Although the Clean Water Act
includes a judicial review provision that explicitly authorizes courts to review EPA actions
outside of the wetlands context, litigants must generally rely on 28 U.S.C. § 1331 to
establish jurisdiction to challenge actions of EPA and the Corps in administering the
federal wetlands protection program. However, if a litigant is challenging the
government’s action as an unconstitutional “taking” of property, federal statutes grant
jurisdiction to the Court of Federal Claims or federal district courts (depending on the
amount in controversy) to hear those challenges. See 28 U.S.C. §§ 1346, 1491. Takings
claims are discussed at length in Chapter 11 of this book.
The general federal question jurisdiction statute does not waive the government’s
sovereign immunity, but the APA waives sovereign immunity to the extent that a litigant
is seeking declaratory and injunctive relief, as opposed to money damages. See 5 U.S.C.
§ 702. In the wetlands context, litigants that are challenging actions of the Corps or EPA
are generally seeking declaratory or injunctive relief, rather than money damages, so the
APA waiver of sovereign immunity is sufficient for their challenges. When litigants are
challenging federal agency actions as a “taking” of their property, the statutes that grant

61

the court jurisdiction to hear those claims waive sovereign immunity of the government
for the money damages authorized by those statutes.
As noted above, in addition to demonstrating reviewability, jurisdiction, and a waiver of
sovereign immunity, litigants must demonstrate that they have standing to sue. Chapter
10 of this book discusses the standing requirement, as well as other limits on judicial
review, including mootness, ripeness, and statutes of limitation.
B.

Standards for judicial review

Although Congress can vary the standards for review of agency actions, the APA
establishes standards that generally apply to judicial review of agency actions under that
statute. Specifically, the APA provides that a reviewing court shall:
(2)

hold unlawful and set aside agency action, findings, and conclusions
found to be
(A)
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(B)
contrary to constitutional right, power, privilege, or immunity;
(C)
in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(D)
without observance of procedure required by law;
(E)
unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or
(F)
unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.”

5 U.S.C. § 706.
The standard that applies most frequently on judicial review of an agency’s action is the
arbitrary and capricious standard. The standard applies to all factual determinations
made by agencies outside of formal hearing procedures, as well as policy determinations
made by agencies. It is a narrow standard of review, which focuses on whether the
agency decision “was based on a consideration of relevant factors and whether there has
been a clear error of judgment...” See Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971). As a result, if an agency does not explain its decision, ignores
relevant factors in reaching its decision, or makes a decision that seems clearly
unreasonable in light of the information considered by the agency, a court will find that
the agency’s action is arbitrary and capricious. When an agency is making determinations
“within its special expertise, at the frontiers of science,” the Supreme Court has counseled

62

that a reviewing court “must generally be at its most deferential.” See Baltimore Gas &
Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 103 (1983).
Although the standard is quite deferential, courts reviewing an agency’s policy
determinations occasionally apply a more rigorous, less deferential version of the
standard, referred to as “hard look” arbitrary and capricious review. For instance, in Motor
Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43
(1983), the Supreme Court held that an agency decision is arbitrary and capricious if “the
agency has relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence, or is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.”
Regardless of whether a reviewing court is applying a “hard look” standard or the
traditional arbitrary and capricious standard, the court will not substitute its judgment for
the agency and will normally not make a decision in place of the agency when the court
determines that the agency’s decision is arbitrary and capricious. See Securities and
Exchange Commission v. Chenery Corp., 318 U.S. 80 (1943). Instead, in those cases,
the reviewing court will routinely remand the dispute back to the agency to resolve. Id.
While the arbitrary and capricious standard is ubiquitous in judicial review of agency
action, it does not generally apply to review of an agency’s legal interpretation of a statute.
The following landmark administrative law decision addresses that issue.

63

Chevron v. Natural Resources Defense
Council

Resources for the Case
Unedited Opinion (From Justia)
Oral Argument (from the Oyez Project)
Google Map of all the Cases in the Course Source

467 U.S. 837 (1984)
JUSTICE STEVENS delivered the opinion of
the Court.

In the Clean Air Act Amendments of 1977,
* * * Congress enacted certain requirements
applicable to States that had not achieved the
national air quality standards established by the
Environmental Protection Agency (EPA) pursuant
to earlier legislation. The amended Clean Air Act
required these "nonattainment" States to establish
a permit program regulating "new or modified major
stationary sources" of air pollution. Generally, a
Photo 17 By
permit may not be issued for a new or modified
http://www.flickr.com/photos/keepitsurreal/
major stationary source unless several stringent
http://commons.wikimedia.org/wiki/File:Oil_
conditions are met. * * * The EPA regulation refinery_canada.jpg [CC-BY-SA-2.0 )
promulgated to implement this permit requirement allows a State to adopt a plantwide
definition of the term "stationary source."2 Under this definition, an existing plant that
contains several pollution-emitting devices may install or modify one piece of equipment
without meeting the permit conditions if the alteration will not increase the total emissions
from the plant. The question presented by these cases is whether EPA's decision to allow
States to treat all of the pollution-emitting devices within the same industrial grouping as
though they were encased within a single "bubble" is based on a reasonable construction
of the statutory term "stationary source."
The EPA regulations containing the plantwide definition of the term stationary source
were promulgated on October 14, 1981. * * * Respondents3 filed a timely petition for
2

"(i) 'Stationary source' means any building, structure, facility, or installation which emits
or may emit any air pollutant subject to regulation under the Act."
"(ii) 'Building, structure, facility, or installation' means all of the pollutant-emitting activities
which belong to the same industrial grouping, are located on one or more contiguous or
adjacent properties, and are under the control of the same person (or persons under
common control) except the activities of any vessel."
40 C.F.R. §§ 51.18(j)(1)(i) and (ii) (1983).
3

National Resources Defense Council, Inc., Citizens for a Better Environment, Inc., and
64

review in the United States Court of Appeals for the District of Columbia Circuit pursuant
to 42 U.S.C. § 7607(b)(1).4 The Court of Appeals set aside the regulations. * * * The court
observed that the relevant part of the amended Clean Air Act "does not explicitly define
what Congress envisioned as a stationary source, to which the permit program . . . should
apply," and further stated that the precise issue was not "squarely addressed in the
legislative history." * * * In light of its conclusion that the legislative history bearing on the
question was "at best contradictory," it reasoned that "the purposes of the nonattainment
program should guide our decision here." * * * Based on two of its precedents concerning
the applicability of the bubble concept to certain Clean Air Act programs, * * * the court
stated that the bubble concept was "mandatory" in programs designed merely to maintain
existing air quality, but held that it was "inappropriate" in programs enacted to improve air
quality. * * * Since the purpose of the permit program its "raison d'etre," in the court's view
-- was to improve air quality, the court held that the bubble concept was inapplicable in
these cases under its prior precedents. * * * It therefore set aside the regulations
embodying the bubble concept as contrary to law. We granted certiorari to review that
judgment, * * * and we now reverse.
The basic legal error of the Court of Appeals was to adopt a static judicial definition of the
term "stationary source" when it had decided that Congress itself had not commanded
that definition. Respondents do not defend the legal reasoning of the Court of Appeals.7
Nevertheless, since this Court reviews judgments, not opinions, * * * we must determine
whether the Court of Appeals' legal error resulted in an erroneous judgment on the validity
of the regulations.

North Western Ohio Lung Association, Inc.
4

Petitioners, Chevron U.S.A. Inc., American Iron and Steel Institute, American Petroleum
Institute, Chemical Manufacturers Association, Inc., General Motors Corp., and Rubber
Manufacturers Association were granted leave to intervene and argue in support of the
regulation.
7

Respondents argued below that EPA's plantwide definition of "stationary source" is
contrary to the terms, legislative history, and purposes of the amended Clear Air Act. The
court below rejected respondents' arguments based on the language and legislative
history of the Act. It did agree with respondents’ contention that the regulations were
inconsistent with the purposes of the Act, but did not adopt the construction of the statute
advanced by respondents here. Respondents rely on the arguments rejected by the Court
of Appeals in support of the judgment, and may rely on any ground that finds support in
the record. * * *
65

II
When a court reviews an agency's construction of the statute which it administers, it is
confronted with two questions. First, always, is the question whether Congress has
directly spoken to the precise question at issue. If the intent of Congress is clear, that is
the end of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.9 If, however, the court determines
Congress has not directly addressed the precise question at issue, the court does not
simply impose its own construction on the statute, * * * as would be necessary in the
absence of an administrative interpretation. Rather, if the statute is silent or ambiguous
with respect to the specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.11
"The power of an administrative agency to administer a congressionally created .
. . program necessarily requires the formulation of policy and the making of rules
to fill any gap left, implicitly or explicitly, by Congress."
Morton v. Ruiz, 415 U.S. 199, 231 (1974). If Congress has explicitly left a gap for the
agency to fill, there is an express delegation of authority to the agency to elucidate a
specific provision of the statute by regulation. Such legislative regulations are given
controlling weight unless they are arbitrary, capricious, or manifestly contrary to the
statute. * * * Sometimes the legislative delegation to an agency on a particular question
is implicit, rather than explicit. In such a case, a court may not substitute its own
construction of a statutory provision for a reasonable interpretation made by the
administrator of an agency. * * *
We have long recognized that considerable weight should be accorded to an executive
department's construction of a statutory scheme it is entrusted to administer, * * * and the
principle of deference to administrative interpretations
"has been consistently followed by this Court whenever decision as to the meaning
or reach of a statute has involved reconciling conflicting policies, and a full
9

The judiciary is the final authority on issues of statutory construction, and must reject
administrative constructions which are contrary to clear congressional intent. * * * If a
court, employing traditional tools of statutory construction, ascertains that Congress had
an intention on the precise question at issue, that intention is the law, and must be given
effect.
11

The court need not conclude that the agency construction was the only one it
permissibly could have adopted to uphold the construction, or even the reading the court
would have reached if the question initially had arisen in a judicial proceeding. * * *
66

understanding of the force of the statutory policy in the given situation has
depended upon more than ordinary knowledge respecting the matters subjected
to agency regulations. See, e.g., National Broadcasting Co. v. United States, 319
U.S. 190; Labor Board v. Hearst Publications, Inc., 322 U.S. 111; Republic Aviation
Corp. v. Labor Board, 324 U.S. 793; Securities & Exchange Comm'n v. Chenery
Corp., 332 U.S. 194; Labor Board v. Seven-Up Bottling Co., 344 U.S. 344. . . . If
this choice represents a reasonable accommodation of conflicting policies that
were committed to the agency's care by the statute, we should not disturb it unless
it appears from the statute or its legislative history that the accommodation is not
one that Congress would have sanctioned."
United States v. Shimer, 367 U.S.374, 367 U.S. 382, 383 (1961). * * *
In light of these well-settled principles, it is clear that the Court of Appeals misconceived
the nature of its role in reviewing the regulations at issue. Once it determined, after its
own examination of the legislation, that Congress did not actually have an intent regarding
the applicability of the bubble concept to the permit program, the question before it was
not whether, in its view, the concept is "inappropriate" in the general context of a program
designed to improve air quality, but whether the Administrator's view that it is appropriate
in the context of this particular program is a reasonable one. Based on the examination
of the legislation and its history which follows, we agree with the Court of Appeals that
Congress did not have a specific intention on the applicability of the bubble concept in
these cases, and conclude that the EPA's use of that concept here is a reasonable policy
choice for the agency to make. * * *
VII
* * * We are not persuaded that parsing of general terms in the text of the statute will
reveal an actual intent of Congress. * * *
Legislative History
In addition, respondents argue that the legislative history and policies of the Act foreclose
the plantwide definition, and that the EPA's interpretation is not entitled to deference,
because it represents a sharp break with prior interpretations of the Act.
Based on our examination of the legislative history, we agree with the Court of Appeals
that it is unilluminating. * * * We find that the legislative history as a whole is silent on the
precise issue before us. It is, however, consistent with the view that the EPA should have
broad discretion in implementing the policies of the 1977 Amendments.
More importantly, that history plainly identifies the policy concerns that motivated the

67

enactment; the plantwide definition is fully consistent with one of those concerns -- the
allowance of reasonable economic growth -- and, whether or not we believe it most
effectively implements the other, we must recognize that the EPA has advanced a
reasonable explanation for its conclusion that the regulations serve the environmental
objectives as well. * * * Indeed, its reasoning is supported by the public record developed
in the rulemaking process, * * * as well as by certain private studies. * * *
Our review of the EPA's varying interpretations of the word "source" -- both before and
after the 1977 Amendments -- convinces us that the agency primarily responsible for
administering this important legislation has consistently interpreted it flexibly -- not in a
sterile textual vacuum, but in the context of implementing policy decisions in a technical
and complex arena. The fact that the agency has from time to time changed its
interpretation of the term "source" does not, as respondents argue, lead us to conclude
that no deference should be accorded the agency's interpretation of the statute. An initial
agency interpretation is not instantly carved in stone. On the contrary, the agency, to
engage in informed rulemaking, must consider varying interpretations and the wisdom of
its policy on a continuing basis. Moreover, the fact that the agency has adopted different
definitions in different contexts adds force to the argument that the definition itself is
flexible, particularly since Congress has never indicated any disapproval of a flexible
reading of the statute. * * *
Policy
The arguments over policy that are advanced in the parties' briefs create the impression
that respondents are now waging in a judicial forum a specific policy battle which they
ultimately lost in the agency and in the 32 jurisdictions opting for the "bubble concept,"
but one which was never waged in the Congress. Such policy arguments are more
properly addressed to legislators or administrators, not to judges.38
In these cases, the Administrator's interpretation represents a reasonable
accommodation of manifestly competing interests, and is entitled to deference: the
regulatory scheme is technical and complex, * * * the agency considered the matter in a
detailed and reasoned fashion, * * * and the decision involves reconciling conflicting
38

Respondents point out if a brand new factory that will emit over 100 tons of pollutants
is constructed in a nonattainment area, that plant must obtain a permit pursuant to §
172(b)(6), and, in order to do so, it must satisfy the § 173 conditions, including the LAER
requirement. Respondents argue if an old plant containing several large emitting units is
to be modernized by the replacement of one or more units emitting over 100 tons of
pollutant with a new unit emitting less -- but still more than 100 tons -- the result should
be no different simply because "it happens to be built not at a new site, but within a
preexisting plant." * * *
68

policies. * * * Congress intended to accommodate both interests, but did not do so itself
on the level of specificity presented by these cases. Perhaps that body consciously
desired the Administrator to strike the balance at this level, thinking that those with great
expertise and charged with responsibility for administering the provision would be in a
better position to do so; perhaps it simply did not consider the question at this level; and
perhaps Congress was unable to forge a coalition on either side of the question, and
those on each side decided to take their chances with the scheme devised by the agency.
For judicial purposes, it matters not which of these things occurred.
Judges are not experts in the field, and are not part of either political branch of the
Government. Courts must, in some cases, reconcile competing political interests, but not
on the basis of the judges' personal policy preferences. In contrast, an agency to which
Congress has delegated policymaking responsibilities may, within the limits of that
delegation, properly rely upon the incumbent administration's views of wise policy to
inform its judgments. While agencies are not directly accountable to the people, the Chief
Executive is, and it is entirely appropriate for this political branch of the Government to
make such policy choices -- resolving the competing interests which Congress itself either
inadvertently did not resolve, or intentionally left to be resolved by the agency charged
with the administration of the statute in light of everyday realities.
When a challenge to an agency construction of a statutory provision, fairly
conceptualized, really centers on the wisdom of the agency's policy, rather than whether
it is a reasonable choice within a gap left open by Congress, the challenge must fail. In
such a case, federal judges -- who have no constituency -- have a duty to respect
legitimate policy choices made by those who do. The responsibilities for assessing the
wisdom of such policy choices and resolving the struggle between competing views of
the public interest are not judicial ones: "Our Constitution vests such responsibilities in
the political branches." TVA v. Hill, 437 U.S. 153, 195 (1978).
We hold that the EPA's definition of the term "source" is a permissible construction of the
statute which seeks to accommodate progress in reducing air pollution with economic
growth.
"The Regulations which the Administrator has adopted provide what the agency could
allowably view as . . . [an] effective reconciliation of these twofold ends. . . ." United States
v. Shimer, 367 U.S. at 383.
The judgment of the Court of Appeals is reversed.
It is so ordered.

69

Questions and Comments
1.

The Bubble: Under the Clean Air Act, at the time of the decision, construction of
a new major “stationary source” or “modification” of a major “stationary source” in
an area of a state that was not meeting air quality standards (“nonattainment”)
required a permit and compliance with stringent technology-based air pollution
limits. Not every change in a stationary source, however, constituted a
“modification.” A change only constituted a “modification” if it resulted in the
emission of a new pollutant or an increase in emissions of existing pollutants.
Therefore, as noted in footnote 38 above, therefore, by defining “stationary source”
to include an entire plant, an industrial facility could avoid the permitting and new
technology requirements of the statute by replacing existing parts of a factory that
are emitting pollution with new parts, as long as the new parts emitted the same
or less pollution as the existing parts, since the facility would not be “modifying” a
source. If, however, each part of the facility that emitted pollution were defined as
a separate “source,” the construction of a new part would be construction of a
“stationary source” which could (if it were a major stationary source) trigger the
permitting and new technology requirements, regardless of whether any other
portions of the facility were being retired. Why do you think that NRDC opposed
the bubble concept, and why did Chevron favor it?

2.

The Two Step: The Court created a two-step test that is frequently used to review
agencies’ legal interpretations of statutory terms. At step one, Justice Stevens
suggests that courts must ask “whether Congress has directly spoken to the
precise question at issue.” Is the Court applying a clear statement test at step one?
If so, is the Court’s review limited to the language of the statute, or can it consider
the legislative history or purpose of the statute as well?

3.

Step Two: If a court determines, at step one, that the statute is silent or
ambiguous, then Chevron directs the court to defer to the agency’s interpretation
as long as it is “based on a permissible construction of the statute.” Subsequent
cases routinely rephrase step two to provide that courts should defer to the
agency’s interpretation as long as it is reasonable. In practice, courts almost
always uphold agency interpretations at step two. Consequently, most of the
battles in Chevron cases are fought based on statutory construction principles at
step one.

4.

Agency Change in Position: The Court noted that EPA did not always interpret
the term “stationary source” to encompass the “bubble concept” and that the
agency had previously interpreted the term to apply to separate units within a plant.
Does the agency’s change in position make its decision unreasonable at step two?
Would the result have been the same if the agency had changed its interpretation

70

several times prior to adopting the regulations that were challenged in this case?
Would the result have been the same if the agency did not explain why it had
changed its interpretation of the term “stationary source”?
5.

Reason for Deference: In crafting a decision for a unanimous Court, Justice
Stevens identified several different reasons why deference to an agency’s
interpretation is warranted, including: (a) Congress intended that the agency
should resolve the issue; (b) agencies have specialized expertise to resolve the
issue; and (c) agencies are politically accountable through the democratic process.
In determining how far Chevron applies outside of the context in which the case
arose, courts have struggled to determine whether one rationale carries more
weight than others.

6.

Reach of Chevron: Chevron involved the review of an agency’s interpretation of
a statutory term when the agency had interpreted the term as a legislative rule
through notice-and-comment rulemaking. Sixteen years later, in Christensen v.
Harris County, 529 U.S. 576 (2000), the Supreme Court held that courts should
generally not apply Chevron when reviewing an agency’s interpretation of a statute
through a non-legislative rule, such as a guidance document, policy statement, or
interpretative rule. The following year, in United States v. Mead Corp., 533 U.S.
218 (2001), the Court held that Chevron did not apply to review of a letter ruling
issued by the U.S. Customs Service. The Court provided some general guidance
regarding when Chevron should apply. Specifically, the Court indicated that
Chevron applies “when it appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of that
authority.” Id. at 226-227 (emphasis added). The Court suggested that an agency
could show the necessary delegation of authority “in a variety of ways, as by an
agency’s power to engage in adjudication or notice and comment rulemaking, or
by some other indication of a comparable congressional intent.” Id. at 227. A year
later, in Barnhart v. Walton, 535 U.S. 212, 222 (2002), the Court confused the
analysis more, suggesting that in determining whether Chevron applies, courts
should also consider “the interstitial nature of the legal question, the related
expertise of the Agency, the importance of the question to administration of the
statute, the complexity of that administration, and the careful consideration the
agency has given the question over a long period of time.” Although the Court’s
Chevron jurisprudence is very complex, it is probably safe to assume that when a
court is reviewing a legislative rule adopted by an agency through formal or
informal rulemaking, or is reviewing a decision that an agency has made through
formal adjudication, the court will apply Chevron. It is also probably safe to assume
that in most cases, when a court is reviewing an agency’s non-legislative rule, the
court will not apply Chevron (although the Court has left the door open to the

71

possibility that Chevron might apply in a specific case). It is hard to reach a similar
broad conclusion regarding whether a court will apply Chevron to a decision made
by an agency in the context of informal adjudication. The answer will lie in the
ultimate clarification of the Court’s decisions in Mead and Barnhart.
7.

Skidmore: If a court reviewing an agency’s legal interpretation does not use the
Chevron analysis, that does not mean that the court will review the statutory
interpretation question de novo. Agencies are still accorded deference under an
earlier Supreme Court decision, although the deference is weaker than Chevron
deference. In Skidmore v. Swift, the Supreme Court, reviewing a decision of the
Administrator of the Department of Labor’s Wage and Hour Division, held that:
the rulings, interpretations and opinions of the Administrator under this Act,
while not controlling upon the courts by reason of their authority, do
constitute a body of experience and informed judgment to which courts and
litigants may properly resort for guidance. The weight of such a judgment in
a particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and
later pronouncements, and all those factors which give it power to persuade,
if lacking power to control.
323 U.S. 134, 140 (1944).

8.

Agency interpretations of agency regulations: Chevron involved judicial review
of an agency’s interpretation of a statute. However, agencies occasionally adopt
regulations that are ambiguous and need to be interpreted further. When a court
reviews an agency’s interpretation of its own regulations, rather than the
interpretation of a statute, courts accord the agency an even greater level of
deference than Chevron deference. In Auer v. Robins, 519 U.S. 452, 461 (1997),
the Supreme Court held that courts should uphold an agency’s interpretation of its
regulations unless it is “plainly erroneous or inconsistent with the regulation.”

72

Hypotheticals
1. Focusing on the same statutory language that was interpreted in Chevron, assume, for
purposes of this hypothetical, that EPA did not promulgate a regulation that allowed states to
adopt a plant-wide definition of "stationary source." Instead of adopting a regulation, EPA adopted
a "policy statement" that indicated that states could adopt a plant-wide definition of "stationary
source". The agency adopted the policy statement because it was not fully committed to that
interpretation of the statute and wanted to consider the matter further before issuing a regulation
to define the term. Nevertheless, EPA published the policy statement in the Federal Register and
posted it on its website. If NRDC were able to challenge EPA's policy statement, should a court
review the agency's interpretation of the statute under the Chevron analysis or some other
analysis?
2. Focusing on the same statutory language that was interpreted in Chevron, assume that EPA
did not promulgate a regulation that allowed states to adopt a plant-wide definition of "stationary
source" and assume that they did not adopt a policy statement to that effect either. Assume that
they did not provide any direction to states or regulated industries regarding the definition of
"stationary source." Instead, assume that EPA began an administrative penalty proceeding (an
informal process) against Chevron alleging that Chevron was violating the Clean Air Act because
it had not sought a permit for modifications to its refinery. In the context of that informal
administrative proceeding, EPA announced that it was interpreting the term "stationary source" to
mean each smokestack in a plant. If Chevron appealed EPA's decision to court, would the
reviewing court apply the Chevron analysis to EPA's interpretation of "stationary source" or would
the court apply some other analysis?
3. Focusing on the same statutory language that was interpreted in Chevron, assume that EPA
adopted the regulations that it adopted in Chevron, allowing States to adopt a plant-wide definition
of "stationary source." Assume, however, that the regulations were ambiguous regarding whether
a "plant-wide" definition could incorporate smokestacks that were located a mile away from the
plant (but were related to the process at the plant), and that EPA began an administrative penalty
proceeding against Chevron when Chevron made changes to the off-site processes that
increased pollution from an off-site smokestack without obtaining a permit, because the agency
determined that the term "stationary source" should not include off-site stacks. If Chevron
appealed EPA's decision to court, would the reviewing court apply the Chevron analysis to EPA's
interpretation of "stationary source" or would the court apply some other analysis?

Chapter Quiz
Now that you’ve finished Chapter 3, why not try a CALI Lesson on the material
at: http://cca.li/PS. It should take about 20 minutes.

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Chapter 4
Regulation of Wetlands and Waters of
the United States
I.

Activities Regulated Under the Clean Water Act

A. The Rivers and Harbors Act
Before Congress enacted the Clean Water Act, federal regulation of wetlands was
generally limited to regulation under the Rivers and Harbors Appropriation Act of 1899,
33 U.S.C. § 401, et. seq. Section 10 of the Act prohibits obstruction of navigable waters
except in accordance with a permit issued by the Corps of Engineers, see 33 U.S.C. §
403, and Section 13 of the Act prohibits the deposit of refuse into the navigable waters.
See 33 U.S.C. § 407. As explored
further later in this chapter, though,
the main focus of the statute was, and
remains, protection of navigability of
the nation’s waters. The statutory
definition of “navigable waters” is
driven by that focus, ands limited to
waters that are “subject to the ebb and
flow of the tide and/or are presently
used, or have been used in the past,
or may be susceptible for use to
transport
interstate
or
foreign
commerce.” 33 C.F.R. § 329.4. As a
result, very few wetlands were or are
regulated as “navigable waters” under
the Rivers and Harbors Act.
Photo 18 Corps of Engineers photo http://commons.wikimedia.org/wiki/File:Two
_Harbors_Minnesota_aerial_view.jpg

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B.

The Clean Water Act

When Congress adopted the Federal Water Pollution Control Act Amendments of 1972,
though, it greatly expanded federal regulation over a broad range of activities in wetlands
and other waters, with a focus on protecting water quality rather than protecting
navigation. See 33 U.S.C. § 1251(a) (providing that the objectives of the Act are to
“restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters”). Indeed, in the Act, Congress established, as a national goal, “that the discharge
of pollutants into the navigable waters be eliminated by 1985.” Id. § 1251(a)(1).
Section 301: Perhaps the most important provision of the statute, for purposes of federal
regulation of wetlands and other waters, is Section 301, which prohibits “the discharge
of any pollutant by any person” except in compliance with Section 301 and with several
other sections of the statute, including the sections that create the federal permitting
programs for point source discharges and discharges into wetlands. 33 U.S.C. § 1311(a).
The statute further defines “the discharge of a pollutant” to mean the “addition of any
pollutant to navigable waters from any point source”. 33 U.S.C. § 1362(12).
As a result, Section 301 requires permits and compliance with the other requirements of
Section 301 for an activity if all of the following requirements are met:
Triggers for Section 301 prohibition
•
•
•
•
•

there is an addition
of a pollutant
from a point source
into the navigable waters
by a person

402 and 404 Permit Programs: The Clean Water Act creates two separate permit
programs to regulate discharges of pollutants into navigable waters. While the Section
402 permit program, administered by EPA and the states, is the primary permitting
program for point source discharges of pollution into the navigable waters, see 33 U.S.C.
Triggers for 404 Jurisdiction
•
•

there is a discharge of dredged or fill material
into the navigable waters

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§ 1342, most activities involving wetlands are governed by the Section 404 permit
program. See 33 U.S.C. § 1344. Section 404 authorizes the Corps, rather than EPA, to
issue permits when the regulated activity involves the “discharge of dredged or fill material
into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a), Nevertheless,
EPA plays an important role in that permitting process, see 33 U.S.C. § 1344(b)-(c). In
order for the federal government to have Section 404 jurisdiction over an activity in
wetlands, therefore, there must be a “discharge of dredged or fill material” into “navigable
waters.”
When wetlands are ditched, drained, filled or otherwise
altered, several of the pre-requisites for regulation under
sections 301 and 404 are easily met.
Point source: For instance, the Clean Water Act defines
“point source” very broadly as “any discernible, confined
and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which
pollutants are or may be discharged.” 33 U.S.C. §
1362(14). Ditching, draining, or filling activities in wetlands
usually involve heavy construction equipment, such as
backhoes, excavators, or loaders, which clearly are
“discernible, confined and
discrete conveyances.”

Photo 20 USFWS Photo
http://commons.wikimedia.org/wiki/
File:Rolling_fill_material.jpg

Photo 19 B frankenstoen (Flickr:
backhoe)
http://commons.wikimedia.org/wi
ki/File:Case_backhoe_loader.jpg
[CC-BY-2.0]

Pollutant: Similarly, the statute defines “pollutant” to
include “dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt
and industrial, municipal, and agricultural waste
discharged into water.” 33 U.S.C. § 1362(6). Normally,
activities impacting wetlands involve the placement, in
wetlands, of rocks, soil, silt, organic debris or similar
materials, all of which fit comfortably within the definition
of “pollutant.”

Person: The statute also defines “person” very broadly to include “an individual,
corporation, partnership, association, State, municipality, commission, or political
subdivision of a State, or any interstate body.” 33 U.S.C. § 1362(5). As a result, when

76

wetlands are ditched, drained, filled or otherwise altered, it is normally not very difficult to
demonstrate that the activity was undertaken by a “person.”
Consequently, whether Section 301 prohibits ditching, draining, filling or otherwise
impairing wetlands usually depends on whether the activity at issue involves an addition
of a pollutant and whether the wetlands at issue are navigable waters. Similarly, whether
the federal government has jurisdiction under Section 404 over such activities impacting
wetlands usually depends on whether the activity involves a discharge of dredged or fill
material and whether the wetlands at issue are navigable waters. Section II of this
Chapter examines the scope of the federal government’s jurisdiction over navigable
waters at length, and Chapter 5 focuses on which activities in wetlands have been held
to involve the addition of pollutants or the discharge of dredged or fill material.
As Section II of this Chapter will describe, the Corps and EPA have defined the statutory
term “navigable waters” to include certain wetlands. Before turning to a closer
examination of the scope of federal jurisdiction over navigable waters, therefore, it may
be helpful to examine the federal government’s regulatory approach to defining and
identifying wetlands in more detail.
C.

Identifying and Delineating Wetlands

Definitions: Although the Clean Water Act does not include a statutory definition for
“wetlands,” both EPA and the Corps have adopted regulations that define “wetlands” as
follows:
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 C.F.R. § 328.3 (b) (Corps’ regulations); 40 C.F.R. § 230.3(t) (EPA’s regulations).
While that definition is the primary definition of wetlands for purposes of the Clean Water
Act, there are a few other definitions used by other agencies that have some responsibility
over wetlands under the Clean Water Act. As noted in Chapter 2, the Fish and Wildlife
Service has some responsibilities regarding wetlands under the Clean Water Act and
several other federal statutes. In administering a National Wetlands Inventory, the Fish
and Wildlife Service uses a definition of “wetlands” that is similar, but not identical, to the
definition adopted by EPA and the Corps. Specifically, the Service defines wetlands as
“lands transitional between terrestrial and aquatic systems where the water table is

77

usually at or near the surface or the land is covered by shallow water. For purposes of
this classification, wetlands must have one or more of the following three attributes: (1) at
least periodically, the land supports predominantly hydrophytes, (2) the substrate is
predominantly undrained hydric soil, and (3) the substrate is nonsoil and is saturated with
water or covered by shallow water at some time during the growing season of each year.”
L. Cowardin, et al., U.S. Department of the Interior, Fish and Wildlife Service,
Classification of Wetlands and Deep-Water Habitats of the United States (1979). In
addition, the Natural Resources Conservation Service regulates wetlands under the Food
Security Act, which has a similar, though not identical, statutory definition for wetlands,
see 16 U.S.C. § 3801(27), but that agency also has some regulatory responsibilities over
wetlands on agricultural lands under the Clean Water Act, as discussed below.
Chapter 1 of this book described the scientific bases for determining whether a particular
geographic area constitutes a wetland (i.e. the presence of specific types of soils,
vegetation and hydrology) and outlined the delineation process that is used to identify the
boundaries of wetlands. Not surprisingly, the federal regulatory definitions focus on the
three characteristics of wetlands that are central to delineation - vegetation, soils, and
hydrology. Because the regulatory definition of wetlands adopted by EPA and the Corps
may seem a little difficult to apply to a specific piece of property without further
clarification, the federal agencies with jurisdiction over wetlands have provided guidance
over the years to help staff and the regulated community determine the scope of the
definition.
Delineation manuals: In 1987, the Corps adopted a Wetlands Delineation Manual that
outlined tests and procedures that agency staff could use to determine whether a
particular geographic area had the vegetation, soils and hydrology necessary to be
classified as a wetland. The manual was a guidance document, rather than a rule, so it
was not adopted pursuant to notice and comment rulemaking. In 1988, EPA adopted a
different manual, also as a guidance document, which used different tests and procedures
to delineate wetlands. W.S. Sipple, U.S. Environmental Protection Agency, Wetland
Identification and Delineation Manual (1988). The EPA manual included a test that relied
heavily on an analysis of vegetation for sites of 15 acres or less. Ralph W. Tiner,
WETLAND INDICATORS: A GUIDE TO WETLAND IDENTIFICATION, DELINEATION,
CLASSIFICATION, AND MAPPING 208-209 (CRC Press 1999). Adding to the confusion,
at the time, the Fish and Wildlife Service had its own procedures for identifying wetlands,
based on the Cowardin definition outlined above, as did the Soil Conservation Service,
which regulated wetlands under the Food Security Act. See Soil Conservation Service,
U.S. Department of Agriculture, National Food Security Act Manual (1985). (Note: The
Soil Conservation Service became the Natural Resources Conservation Service in a 1994
USDA reorganization.)
In order to eliminate the confusion caused by the sometimes conflicting guidance

78

documents, in 1989, EPA, the Corps, the Fish and Wildlife Service and the Soil
Conservation Service developed a uniform manual for delineating wetlands, see Fish and
Wildlife Service, Environmental Protection Agency, Department of the Army, Soil
Conservation Service, Federal Manual for Identifying and Delineating Jurisdictional
Wetlands (1989). Like the predecessor documents, the interagency manual was a
guidance document, rather than a rule, and was adopted outside of the notice and
comment rulemaking process. Shortly after its adoption, the interagency manual was
criticized by landowners and organizations who claimed that the manual would expand
jurisdiction to cover a much broader universe of areas as wetlands. See National
Research Council, Wetlands: Characteristics and Boundaries 2 (The National Academies
Press, 1995).
Because the manual was adopted informally, landowners challenged the use of the
manual on the grounds that it was a legislative rule that was adopted in violation of the
APA’s notice-and-comment rulemaking procedures and was, therefore, invalid. The
United States Court of Appeals for the Fourth Circuit addressed that issue in the following
case:

Photo 21 By Ardfern (Own work)
http://commons.wikimedia.org/wiki/File%3ABallynoe_(24)%2C_September_2009.JPG [CC-BY-SA-3.0 or
GFDL]

79

Hobbs v. United States
947 F.2d 941 (4th Cir. 1991)
cert. denied 504 U.S. 940 (1992)

Resources for the Case
Google Map of all the cases in the book
Unedited opinion (From Justia)

PER CURIAM:
These appeals arise from a civil enforcement action brought by the Environmental
Protection Agency for alleged violations of the Clean Water Act ("CWA"), * * * by Phillip
and Dorothy Hobbs as well as the couple's son and daughter-in-law, Paul and Donna
Hobbs. The violations stem from the clearing, draining, and constructing of roads on
approximately 50 acres of alleged wetlands to create hay fields. All of the Hobbses were
subjected to penalties for violations of the CWA by the district court. The Hobbses appeal
the district court's decision on various grounds. Finding none of their arguments
persuasive, we affirm the district court's decision.
I.
A.
A brief review of the statute is necessary for an understanding of the law of this case. The
Clean Water Act is a comprehensive statute designed to "restore and maintain the
chemical, physical, and biological integrity of the Nation's waters." CWA § 101(a)(2)
* * * In accordance with this mandate, the Act bars the discharge of pollutants into waters
of the United States except in compliance with a permit issued under the Act. CWA §
301(a) * * * The term pollutant includes dredged and fill material consisting of soil, rock,
and sand. CWA § 404 * * * The Hobbses do not contest that their discharge material fits
within the definition of a pollutant.
The term "waters of the United States" is not explicitly defined under the statute. The Act
does define "navigable waters," however, as waters of the United States. 33 U.S.C.
§ 1362(7). * * *
"Waters of the United States" is also defined as waters adjacent to other waters of the
nation. 40 C.F.R. § 230.3(s); United States v. Riverside Bayview Homes, Inc., 474 U.S.
121 (1985). EPA defines "adjacent" as bordering, contiguous, or neighboring. 40 C.F.R.
§ 230.3(a). Moreover, wetlands separated from other waters of the United States by
"man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent
wetlands'" according to the EPA. 40 C.F.R. § 230.3(b). Finally, both the EPA and the
Army Corps of Engineers ("Corps") define wetlands as:

80

those areas that are inundated or saturated by surface or groundwater 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.
40 C.F.R. § 230(t); 33 C.F.R. § 328(b).
The EPA is authorized under the Act to issue a Finding of Violation and a Compliance
Order for any violation of CWA § 301(a). 33 U.S.C. § 1319(a). Moreover, EPA may
commence a civil action for appropriate relief for a violation of CWA § 301(a).
For the instant case, there are two relevant manuals for wetlands determinations, one
produced by the EPA and the other by the Corps. Both manuals are used to aid in the
determination of what constitutes wetlands. Each manual relies on three parameters to
make a determination: hydrology, vegetation, and soils. The Corps of Engineers
Delineation Manual was adopted in 1987. The EPA manual was adopted April 1988.
There is also an interagency manual, adopted by the EPA and the Corps, which was
adopted January 10, 1989. The joint manual, like the EPA manual, uses the three
parameter test in a manner that expands the definition of wetlands. The jury was allowed
to consider the multiparameter standard in each of the manuals.
II
Phillip and Dorothy Hobbs own about 169 acres in Ware Neck, Gloucester County,
Virginia. The Hobbses' son and daughter-in-law, Paul and Donna, also own 37 acres in
the county. The combined property contains approximately 206 acres ("Hobbses'
property"). The jury found this parcel to be wetlands adjacent to the Ware River.
The Hobbses cleared, drained, and constructed roads on approximately 50 acres of
wetlands to create hay fields. In the process, the elder Hobbs discharged, dredged, or
filled material onto their wetlands in 1980, 1984, and 1985. The younger Hobbs did the
same in 1986, 1987, and 1988. The Hobbses, however, did not apply for a § 404 permit
from the Corps, as required by the CWA.
The Hobbses contend that they did not apply for a permit because they were under the
impression that they were not required to do so. On September 29, 1988 an official of the
U.S. Fish and Wildlife Service ("FWS") went to the Hobbses property and told Paul Hobbs
they might be doing work on nontidal wetlands. The FWS official arranged a site visit by
a Corps official. The Hobbses contend they overheard the two men talking and expressing
doubt about whether the land was in fact wetlands. When Paul Hobbs asked about the
property, the Corps official stated that "it was a grey area of enforcement for the Corps of
Engineers ... and he didn't see where the [Hobbses] had ... done anything wrong."
Moreover, the Corps employee told the Hobbses that he would get back to them about

81

whether their land was wetlands; but he never told them whether the property was
wetlands nor did the official tell them about a permit.
EPA issued the Hobbses a Findings of Violation and Compliance Order, or Administrative
Order, on March 23, 1989. EPA subsequently amended the order on April 25, 1989.
III
On April 25, 1989, the Hobbses filed a complaint challenging the EPA's Findings of
Violation and Compliance Order issued against them under § 404. On May 4, 1989, the
district court issued a preliminary injunction allowing the Hobbses to continue to farm that
portion of the land previously converted to hayfields. * * *
[At the trial level, EPA then filed a counterclaim against the Hobbses for illegally filling the
wetlands and the court dismissed the Hobbses complaint against EPA. On EPA’s
counterclaim, a jury found that the Hobbses discharged pollutants onto wetlands on their
land in violation of the Clean Water Act. The court allowed the defendants to continue to
grow hay on the parcels that they had previously converted to hay fields, but ordered
them to pay $300 in civil penalties and required them to take various actions to restore
and/or preserve the other wetlands on their property. The defendants appealed the court’s
decision on several grounds, including an argument that the delineation manual(s) used
by the government were substantive rules that were invalid because they were not
adopted in accordance with the APA.]
IV
A
***
The second issue is whether the EPA's wetlands delineation manuals are interpretive
guidance documents or substantive rules with binding legal effect in the determination of
what constitutes wetlands under 40 C.F.R. § 230(t) and 33 C.F.R. § 328.3(b). Closely
related to this matter is the question of whether the EPA Manual constitutes substantive
rules subject to the Administrative Procedure Act ("APA") notice and comment
requirements, 5 U.S.C. § 553.
The Hobbses contend that the EPA manual represents substantive rules subject to the
public notice and comment requirements under the APA. Their argument in effect is the
manual does not merely clarify and explain the process of wetlands determination, but
rather expands federal jurisdiction.

82

Whether the manual is subject to APA depends on whether it constitutes interpretive rules
or substantive rules. The former rules " 'are those which merely clarify or explain existing
law or regulations,' and 'do not have the full force and effect of a substantive rule but [are]
in the form of an explanation of particular terms.' " American Hospital Ass'n v. Bowen,
834 F.2d 1037, 1045 (D.C. Cir.1987) (citations omitted). In Jerri's Ceramic Arts v.
Consumer Products Safety Comm'n, 874 F.2d 205 (4th Cir.1989), we noted the distinction
between the two rules:
An interpretive rule simply state[s] what the administrative agency thinks the
statute means, and only "remind[s]" affected parties of existing duties ... [while] a
substantive or legislative rule has the force of law, and creates new law or imposes
new rights or duties.
Id., 207. Moreover, this court held that in determining whether a rule was interpretive or
substantive courts must consider the agency's intent. Id., at 208.
The intent behind the manuals and absence of the force of law make it clear that they are
interpretive rules. The EPA manual states in its preface that it was "developed to address
the need for operational and jurisdictional guidance." Moreover, the manual states that
the methods offered for wetlands determinations "are the recommended approaches."
While the EPA manual does not possess the force of law, the EPA manual does represent
a significant change in the definition and an expansion of jurisdiction. The change in
definition, however, is premised upon the making of certain scientific assumptions
regarding the presence of the three parameters for a wetlands determination. The
Hobbses point to nothing in the record to suggest any explicitly political motivation or
policy consideration behind the change in the parameter test. Without a showing of intent
or legal force, the manuals are no more than interpretive rules.
Questions and Comments
1.

What procedures does the APA require agencies to follow when adopting
interpretative rules? How do those procedures differ from the procedures required
for substantive (legislative) rules?

2.

Are interpretative rules entitled to Chevron deference? Do they carry the force of
law? Why might the agencies have preferred to adopt the delineation manuals as
interpretative rules, as opposed to substantive (legislative) rules?

3.

Is an agency’s characterization of a rule as “interpretative” or “substantive”
outcome determinative? How does this court determine what type of “rule” EPA
has adopted?

83

4.

Remember that several federal agencies have jurisdiction over various aspects of
wetlands regulation under the Clean Water Act and other statutes. Note that the
violation in this case was first identified by a representative of the Fish and Wildlife
Service, who arranged a visit by a representative of the Corps of Engineers, but
that the enforcement action in the case was brought by EPA. Note, too, that the
representatives of the various agencies appeared to view the severity of the
violation differently. One of the defendants in the case argued that the government
should be estopped from prosecuting him because he constructed the drainage
ditches on the property under the supervision of and according to the design
specifications of two Soil Conservation Service employees. The court addressed
that argument in a separate portion of the opinion. How do you think the court
should have ruled? See Office of Personnel Management v. Richmond, 496 U.S.
414 (1990).

5.

As Chapter 10 will explore more fully, the government does not need to prove that
a defendant acted intentionally, or with any mental state, to prevail in a civil
enforcement action under the Clean Water Act. Nevertheless, the government, and
courts, are likely to consider the defendant’s mental state when determining the
severity of the penalties for violating the Act. Does it appear that the trial court
considered the Hobbses mental state in determining the penalty for the
defendant’s conduct?

84

More Manuals: In 1991, the Corps and EPA developed updates to the 1989 manual and
began a rulemaking process to adopt a new manual. See 56 Fed. Reg. 40,446 (Aug. 14,
1991). The 1991 proposal generated controversy when critics argued that it was
grounded more in politics than science and would significantly narrow jurisdiction over
wetlands. Environmental groups claimed that 30-80% of the areas regulated as wetlands
under the 1989 manual would be excluded from regulation under the proposed 1991
manual. See Heimlich, R.E., K.D. Wiebe, R. Claassen, D. Gadsby and R.M. House,
Economic Research Service, U.S. Department of Agriculture, Wetlands and Agriculture:
Private Interests and Public Benefits, Agricultural Economic Report No. 765 (1998).
http://www.ers.usda.gov/epubs/pdf/aer765/The agencies ultimately abandoned the proposed
rulemaking.
In response to criticism of the 1989 manual and concerns about the process that the
agencies were using to develop the delineation manuals, in 1992, Congress included a
rider in appropriations legislation for the Corps that prohibited the Corps from utilizing the
1989 interagency manual or any other manual adopted after the 1989 manual unless the
manual was adopted pursuant to notice-and-comment rulemaking procedures. See
Energy and Water Development Appropriations Act of 1993, Pub. L. No. 102-377, 106
Stat, 1315 (1992). In light of the legislation, the Corps returned to using its 1987
delineation manual to delineate wetlands under the Clean Water Act. Although the
legislation did not apply to EPA, EPA also decided to use the Corps’ 1987 manual to
delineate wetlands under the Clean Water Act at that time. The Natural Resources
Conservation Service, however, returned to its own National Food Security Act Manual.
In 1995, the National Academy of Sciences released a report on characterizing wetlands,
see National Research Council, Wetlands: Characteristics and Boundaries (The National
Academies Press, 1995) (“NAS Study”), that was prepared in response to a federal law
that required the Academy to prepare such a study to assist in the development of a new
federal wetlands delineation manual. See Departments of Veterans Affairs and Housing
and Urban Development and Independent Agencies Appropriations Act of 1993, Pub. L.
No. 102-389, 106 Stat. 1571 (1992). The report included a series of recommendations
improving the 1987 Corps’ manual, but also found that the approach that the agencies
were using under that manual was scientifically sound. See NAS Study, supra, at 12.
Although the National Academy of Sciences study suggested that there was a need for a
“more efficient, more uniform, ... and more accurate” approach to delineating wetlands,
id., EPA and the Corps still use the Corps’ 1987 delineation manual to delineate wetlands
under the Clean Water Act. However, following up on recommendations in a 2002 Corps
report, see James S. Wakeley, Developing a Regionalized Version of the Corps of
Engineers Wetlands Delineation Manual: Issues and Recommendations, ERDC/EL TR02-20 (Aug. 2002), the Corps adopted a series of 10 regional supplements to the
delineation manual, with procedures and tests tailored to the specific vegetation, soils

85

and hydrology conditions of each region. See U.S. Army Corps of Engineers, Regional
Supplements to the Corps Delineation Manual, available at:
http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/reg_sup
p.aspx
Division of authority for determining jurisdiction: As will be described more fully in
Chapters 6 and 10, EPA plays an important role in the permitting process with the Corps
and both agencies have enforcement authority under the Clean Water Act. In order to
establish efficient coordination between the agencies in making jurisdictional
determinations under the Act, EPA and the Corps entered into a Memorandum of
Agreement in 1989, see Memorandum of Agreement Between the Department of the
Army and the Environmental Protection Agency Concerning the Determination of the
Section 404 Permit Program and the Application of the Exemptions Under Section 404(f)
of the Clean Water Act (Jan. 19, 1989)(MOA), that gave the Corps the responsibility for
performing “the majority of the geographic jurisdictional determinations” and provided that
the Corps’ determinations would be binding on the Government. The MOA did, however,
authorize EPA to make jurisdictional determinations in “special cases” and recognized
that EPA would be the lead agency in developing guidance on determining jurisdiction
under the Act. Id. Because the agencies entered into the agreement in 1989, the MOA
provided that the agencies would make determinations using the 1989 interagency
delineation manual. Id. In 1993, the agencies amended the MOA to provide that
determinations would be made using the 1987 Corps delineation manual, but left the rest
of the agreement intact. See 58 Fed. Reg. 4995 (Jan. 19, 1993). While most jurisdictional
determinations are covered by those MOAs, the Natural Resources Conservation Service
takes the lead on delineating wetlands for purposes of the Food Security Act and
delineates them using its own manual. See Environmental Protection Agency,
Department of Defense, Department of Agriculture, Department of Interior, Interagency
Memorandum of Agreement Concerning Wetlands Determinations for Purposes of
Section 404 of the Clean Water Act and Subtitle B of the Food Security Act, (Jan. 6, 1994).
While the government agencies are ultimately responsible for determining the geographic
limits of wetlands jurisdiction, landowners frequently retain consultants to delineate the
wetland boundaries on their property in accordance with the 1987 Corps manual prior to
seeking an official jurisdictional determination from the government. States and
professional organizations, such as the Society of Wetlands Scientists, provide training
and certification for wetlands delineators, see Leah Stetson, Association of State
Wetlands Managers, State Wetland Delineator Certification Programs, Wetland News
(June-July 2007), but there is not a national certification program. An official jurisdictional
determination, though, can be made only by the government. While the Corps and EPA
rely on the same scientific tests to delineate wetlands nationwide, a 2004 General
Accounting Office Report determined that those criteria are interpreted and applied

86

unevenly by the various Corps district offices. See General Accounting Office, Corps of
Engineers Needs to Evaluate its District Office Practices in Determining Jurisdiction
GAO–04–297 (Feb. 2004).
Types of Jurisdictional Determinations: The Corps issues two types of jurisdictional
determinations - “preliminary jurisdictional determinations” and “approved jurisdictional
determinations.” See U.S. Army Corps of Engineers, Jurisdictional Determinations,
Regulatory Guidance Letter 08-02 (June 26, 2008) (hereinafter “RGL 08-02"). A
“preliminary jurisdictional determination” is non-binding, cannot be appealed, and can be
used only to indicate that there may be wetlands or waters on a piece of property. See 33
C.F.R. § 331.2. It cannot be used to indicate that wetlands or waters are not present. See
RGL 08-02, § 8. Landowners might seek preliminary jurisdictional determinations to waive
questions regarding jurisdiction and move ahead expeditiously to obtain a development
permit or the Corps might use a preliminary jurisdictional determination as the basis for a
compliance order when site access may be impractical or unauthorized or in other
circumstances when it is not possible to complete an approved jurisdictional
determination in a timely manner. Id. § 4.
An “approved jurisdictional determination” is an official determination that “wetlands,”
“waters of the United States,” or “navigable waters” are present on the property or are not
present on the property. See 33 C.F.R. § 331.2. The “approved jurisdictional
determination” precisely identifies the boundaries of those waters. Id. “Approved
jurisdictional determinations” are valid for five years and can be challenged
administratively. See RGL 08-02 §2. In addition, in United States Army Corps of
Engineers v. Hawkes Co., et al., 136 S. Ct. 1807 (2016), the Supreme Court held that
approved jurisdictional determinations are “final agency actions” that can be reviewed in
court under the APA.
Resources
•
•
•
•

A Corps’ “approved jurisdictional determination” that wetlands
exist on a site in Sacramento, California.
Access the Corps JDs online for the Baltimore District or San
Francisco District.
Access the Unified Corps Database of JDs for all Districts
EPA/Corps Memo re: Strengthening Transparency and
Coordination in Jurisdictional determinations (Nov. 16, 2015)

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Research Problem
Many of the Corps Districts post approved jurisdictional determinations on their websites, as
noted above. Browse one of the Corps District’s websites to find an approved jurisdictional
determination where the Corps has determined that there are wetlands on the property that
are waters of the United States, but where the wetlands are not adjacent to traditional
navigable waters (TNWs). For that jurisdictional determination, please identify (1) the District;
(2) the file number; and (3) the acreage of wetlands that qualify as waters of the United States.
In addition, briefly summarize the connection between the wetlands and traditional navigable
waters and the factors that demonstrate that the wetlands have a significant nexus to traditional
navigable waters.

Hypothetical
Clarissa Darrow is an attorney with the EPA in the Atlanta Regional Office and has been
contacted by an EPA investigator in the Water Branch of the Office regarding the illegal
discharge of fill material into wetlands near Naples, Florida by the Valencia Citrus Company.
Elvin Kagan, the corporate counsel for the Valencia Citrus Company, informed Darrow that
before expanding their orchards last year, Valencia contracted with Carl Kramer as a
consultant to delineate their property and determine whether there were any wetlands on the
property that Valencia planned to develop. Kagan insisted that Valencia did not add any fill
material to wetlands on the property until Kramer informed them that the wetlands were not
“waters of the United States.” If EPA has not yet instituted any enforcement proceedings
against Valencia, and if Kramer is not independently represented by an attorney, may Darrow
contact Kramer and question him without seeking approval from Kagan, as long as Kramer
consents to the meeting? Could Darrow contact Kramer and question him if he were an
employee of the Valencia Fruit Company? See American Bar Association, Model Rule of
Professional Conduct 4.2 and 4.3 (and associated comments).

Section Quiz
Now that you’ve finished the material covering Section I of Chapter 4, why not try a CALI
Lesson on the material at http://cca.li/PT. It should only take about 15 minutes or less.

88

II.

Waters of the United States

A.

The Corps’ Initial Interpretation

The scope of waters, including wetlands, that have been subject to jurisdiction under the
Clean Water Act has ebbed and flowed over the years. The statute does not explicitly
indicate that it covers wetlands. As noted above, the statute regulates various activities
in “navigable waters,” which Congress defined as “waters of the United States, including
the territorial seas.” 33 U.S.C. § 1362(7). When the Corps first adopted rules to define the
term “navigable waters,” it used the definition that it had been using under the Rivers and
Harbors Act. See 37 Fed. Reg. 18289 (Sep. 9, 1972).
1974 Corps definition of “navigable waters”
The term "navigable waters of the United States" and "navigable waters,"
as used herein mean those waters of the United States which are subject
to the ebb and flow of the tide, and/or are presently, or have been in the
past, or may be In the future susceptible for use for purposes of interstate
or foreign commerce. 33 C.F.R. 209.210(d)(1), 39 Fed. Reg. 12115 (April
3, 1974).
Under that definition, “navigable” really meant “navigable.” In order to be a navigable
water, the water had to be:
•
•
•

currently navigable;
historically navigable; or
potentially navigable

The Corps’ “navigable waters” definition was derived, historically, from a test established
by the Supreme Court over one hundred years earlier in The Daniel Ball, 77 U.S. 557
(1870). In that case, the Court rejected the British common law approach that defined
navigability based on the ebb and flow of the tide, and adopted a definition that focused
on whether the waters “are used, or are susceptible of being used, in their ordinary
condition, as highways for commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on water.” 77 U.S. 563. The tie to
commerce was significant, so the mere fact that one could float a canoe on the water was
not dispositive if the water could not at least potentially be used as a highway of
commerce for trade or travel. (For a primer on “navigability” prepared by American
Whitewater, click here.)

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Photo 22 USFWS Photo by John and Karen Hollingsworth
http://commons.wikimedia.org/wiki/File:Canoes_on_water_in_swamp_area.jpg

Environmental groups, including the Natural Resources Defense Council, felt that the
Corps’ regulatory interpretation of “navigable waters” was too narrow and that Congress
intended to regulate a broader range of waters under the Clean Water Act than were
regulated under the Rivers and Harbors Act. Accordingly, NRDC sued the Corps, and the
Federal District Court for the District of Columbia issued the following decision.
Natural Resources Defense Council, Inc. v. Callaway
392 F. Supp. 685 (D.D.C. 1975)
AUBREY E. ROBINSON, Jr., District Judge.
* * * [The Plaintiffs’] Motion for Partial Summary Judgment on Count I of the Complaint
is granted; and it is DECLARED that: * * *
Congress by defining the term ' navigable waters' in Section 502(7) of the [Clean Water
Act] to mean 'the waters of the United States, including the territorial seas,' asserted
federal jurisdiction over the nation's waters to the maximum extent permissible under the
Commerce Clause of the Constitution. Accordingly, as used in the [Clean] Water Act, the
term is not limited to the traditional tests of navigability. * * *

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Defendants Howard H. Callaway, Secretary of the Army, and Lt. Gen. William C. Gribble,
Chief, Army Corps of Engineers, are without authority to amend or change the statutory
definition of navigable waters and they are hereby declared to have acted unlawfully and
in derogation of their responsibilities under Section 404 of the [Clean] Water Act by the
adoption of the definition of navigability described at 33 C.F.R. § 209.210(d)(1), 39
Federal Register 12119 (April 3, 1974) and 33 C.F.R. 209.260; and it is ordered that
Defendants Callaway and Gribble:
1. Revoke and rescind so much of 39 Federal Register 12115, et seq. (April 3, 1974) as
limits the permit jurisdiction of the Corps of Engineers by definition or otherwise to other
than 'the waters of the United States.'
2. Publish within fifteen (15) days of the date of this Order proposed regulations clearly
recognizing the full regulatory mandate of the [Clean] Water Act.
3. Publish within thirty (30) days of the date of this Order final regulations clearly
recognizing the full regulatory mandate of the [Clean] Water Act * * * .
Questions and Comments
1.

Subsequent decisions examining the regulatory definition of “waters of the United
States” frequently invoke the Chevron analysis, which accords agency rulemaking
a degree of deference. Why did the Court not use that analysis in this case, and
would the case have come out differently if the Court had used the Chevron
analysis?

2.

Would the deadlines that the court gave the agency to adopt proposed and final
rules to define “navigable waters” be realistic today?

3.

If the Court upheld the Corps’ regulatory definition of “navigable waters,” would
many wetlands be regulated under the Clean Water Act?

4.

How broad was the Corps’ jurisdiction over “waters” after this decision? What limits
did the Court impose on the Corps’ authority to regulate waters? Would “navigable
waters” need to be “navigable”?

B.

Expanded Jurisdiction, Adjacent Wetlands and Riverside-Bayview Homes

In response to the court’s decision in N.R.D.C. v. Callaway, the Corps amended its
regulations to significantly broaden the definition of “navigable waters” under the Clean

91

Water Act to advance the water quality protection purposes of the statute, as opposed to
the navigability goals of the Rivers and Harbors Act. In 1975, the agency issued interim
final regulations that included not only the traditional “navigable waters” that were
regulated under the Rivers and Harbors Act, but also tributaries of those waters and
“coastal wetlands” or “freshwater wetlands” that were contiguous to, or adjacent to,
traditional navigable waters. See 40 Fed. Reg. 31320 (July 25, 1975). The 1975
regulations marked the first time that the Corps defined “navigable waters” under the
Clean Water Act to include wetlands. The new regulations also asserted jurisdiction over
intrastate lakes, rivers and streams (even if not traditionally navigable) if they were utilized
in various ways for interstate commerce. Thus, while the regulations broadened the
categories of waters within the Corps’ jurisdiction, the agency limited its jurisdiction to
waters with ties to interstate commerce.
In 1982, the Corps refined its regulations but did not significantly expand jurisdiction.
Because the Clean Water Act defines “navigable waters” as “waters of the United States,”
the Corps adopted a regulatory definition of “waters of the United States” that included
the following waters:
•
•
•
•
•
•
•

the traditional navigable waters regulated under the 1974 regulations (33 C.F.R.
§ 323.2(a)(1));
interstate waters and interstate wetlands (33 C.F.R. § 323.2(a)(2));
intrastate waters the use, degradation or destruction of which could affect
interstate or foreign commerce (33 C.F.R. § 323.2(a)(3));
impoundments of water otherwise defined as waters of the United States under
the definition (33 C.F.R. § 323.2(a)(4));
tributaries of waters identified in paragraphs (a)(1) - (4) (33 C.F.R. § 323.2(a)(5));
the territorial sea (33 C.F.R. § 323.2(a)(6)); and
wetlands adjacent to waters (other than waters that are themselves wetlands)
identified in paragraphs (a)(1)-(6) (33 C.F.R. § 323.2(a)(7))

See 33 C.F.R. § 323 (1982).
Those rules were challenged in the following case, which made it to the U.S. Supreme
Court in 1985.

92

United States v. Riverside Bayview
Homes

Resources for the Case

474 U.S. 121 (1985)
JUSTICE WHITE delivered the opinion of the
Court.

Oral Argument Audio (from the Oyez
Project)
Unedited opinion (From Justia)
Google Map of all the cases in the
coursebook

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. * * * 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). 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 C.F.R. § 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 reads 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 C.F.R. § 323.2(c) (1978).
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In 1982, the 1977 regulations were replaced by substantively identical regulations that
remain in force today. See 33 C.F.R. § 323.2 (1985).2 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. 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.
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. * * * Respondent appealed, and the Court of Appeals remanded for consideration
of the effect of the intervening 1977 amendments to the regulation. * * * On remand, the
District Court again held the property to be a wetland subject to the Corps' permit
authority.
***
Respondent again appealed, and the Sixth Circuit reversed. * * * 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. * * * 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.
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.
* * * We now reverse.

2

The regulations also cover certain wetlands not necessarily adjacent to other waters.
See 33 C.F.R. §§ 323.2(a)(2) and (3) (1985). These provisions are not now before us.
94

II
The question whether the Corps of Engineers may demand that respondent obtain a
permit before placing fill material on its property is primarily one of regulatory and statutory
interpretation: we must determine whether respondent's property is an "adjacent wetland"
within the meaning of the applicable regulation, and, if so, whether the Corps' jurisdiction
over "navigable waters" gives it statutory authority to regulate discharges of fill material
into such a wetland. In this connection, we first consider the Court of Appeals' position
that the Corps' regulatory authority under the statute and its implementing regulations
must be narrowly construed to avoid a taking without just compensation in violation of the
Fifth Amendment.
[The Court then held that neither the imposition of a permit requirement by the Clean
Water Act nor the denial of a permit would necessarily constitute a taking. Accordingly,
the Court held that it was not necessary to interpret the statute narrowly to avoid takings
concerns.]
***

III
Purged of its spurious constitutional overtones, the question whether the regulation at
issue requires respondent to obtain a permit before filling its property is an easy one. The
regulation extends the Corps' authority under § 404 to all wetlands adjacent to navigable
or interstate waters and their tributaries. Wetlands, in turn, are defined as lands 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) (195)
(emphasis added). The plain language of the regulation refutes the Court of Appeals'
conclusion that inundation or "frequent flooding" by the adjacent body of water is a sine
qua non of a wetland under the regulation. Indeed, the regulation could hardly state more
clearly that saturation by either surface or ground water is sufficient to bring an area within
the category of wetlands, provided that the saturation is sufficient to, and does, support
wetland vegetation. The history of the regulation underscores the absence of any
requirement of inundation. The interim final regulation that the current regulation replaced
explicitly included a requirement of "periodi[c] inundation." 33 C.F.R. § 209.120(d)(2)(h)
(1976). In deleting the reference to "periodic inundation" from the regulation as finally
promulgated, the Corps explained that it was repudiating the interpretation of that
language "as requiring inundation over a record period of years." 42 Fed. Reg. 37128
(1977). In fashioning its own requirement of "frequent flooding" the Court of Appeals
improperly reintroduced into the regulation precisely what the Corps had excised.
* * * Without the nonexistent requirement of frequent flooding, the regulatory definition of

95

adjacent wetlands covers the property here. The District Court found that respondent's
property was "characterized by the presence of vegetation that requires saturated soil
conditions for growth and reproduction," * * * and that the source of the saturated soil
conditions on the property was groundwater. There is no plausible suggestion that these
findings are clearly erroneous, and they plainly bring the property within the category of
wetlands as defined by the current regulation. In addition, the court found that the wetland
located on respondent's property was adjacent to a body of navigable water, since the
area characterized by saturated soil conditions and wetland vegetation extended beyond
the boundary of respondent's property to Black Creek, a navigable waterway. Again, the
court's finding is not clearly erroneous. Together, these findings establish that
respondent's property is a wetland adjacent to a navigable waterway. Hence, it is part of
the "waters of the United States" as defined by 33 C.F.R. § 323.2 (1985), and if the
regulation itself is valid as a construction of the term "waters of the United States" as used
in the Clean Water Act, a question which we now address, the property falls within the
scope of the Corps' jurisdiction over "navigable waters" under § 404 of the Act.

IV
A
An agency's construction of a statute it is charged with enforcing is entitled to deference
if it is reasonable and not in conflict with the expressed intent of Congress. Chemical
Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U.S.116, 125
(1985); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.837,
842-845 (1984). Accordingly, our 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."8
On a purely linguistic level, it may appear unreasonable to classify "lands," wet or
otherwise, as "waters." Such a simplistic response, however, does justice neither to the
problem faced by the Corps in defining the scope of its authority under § 404(a) nor to
the realities of the problem of water pollution that the Clean Water Act was intended to
combat. In determining the limits of its power to regulate discharges under the Act, the
Corps must necessarily choose some point at which water ends and land begins. Our
common experience tells us that this is often no easy task: the transition from water to
solid ground is not necessarily or even typically an abrupt one. Rather, between open
8

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 C.F.R. §§ 323.2(a)(2) and (3) (1985), and we do not express any opinion on that
question.
96

waters and dry land may lie shallows, marshes, mudflats, swamps, bogs -- in short, a
huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry
land. Where on this continuum to find the limit of "waters" is far from obvious. Faced with
such a problem of defining the bounds of its regulatory authority, an agency may
appropriately look to the legislative history and underlying policies of its statutory grants
of authority. Neither of these sources provides unambiguous guidance for the Corps in
this case, but together they do support the reasonableness of the Corps' approach of
defining adjacent wetlands as "waters" within the meaning of § 404(a). Section 404
originated as part of the Federal Water Pollution Control Act Amendments of 1972, which
constituted a comprehensive legislative attempt "to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters." CWA § 101, 33 U.S.C. § 1251.
This objective incorporated a broad, systemic view of the goal of maintaining and
improving water quality: as the House Report on the legislation put it, "the word integrity'
. . . refers to a condition in which the natural structure and function of ecosystems [are]
maintained." H.R.Rep. No. 92911, p. 76 (1972). Protection of aquatic ecosystems,
Congress recognized, demanded broad federal authority to control pollution, for "[w]ater
moves in hydrologic cycles, and it is essential that discharge of pollutants be controlled
at the source." S.Rep.No. 92414, p. 77 (1972). In keeping with these views, Congress
chose to define the waters covered by the Act broadly. Although the Act prohibits
discharges into "navigable waters," see CWA §§ 301(a), 404(a), 502(12), 33 U.S.C.
§§ 1311(a), 1344(a), 1362(12), the Act's definition of "navigable waters" as "the waters of
the United States" makes it clear that the term “navigable" as used in the Act is of limited
import. In adopting this definition of "navigable waters," Congress evidently intended to
repudiate limits that had been placed on federal regulation by earlier water pollution
control statutes, and to exercise its powers under the Commerce Clause to regulate at
least some waters that would not be deemed "navigable" under the classical
understanding of that term. See S.Conf.Rep. No. 921236, p. 144 (1972); 118 Cong. Rec.
33756-33757(1972) (statement of Rep. Dingell). Of course, it is one thing to recognize
that Congress intended to allow regulation of waters that might not satisfy traditional tests
of navigability; it is another to assert that Congress intended to abandon traditional
notions of "waters" and include in that term "wetlands" as well. Nonetheless, the evident
breadth of congressional concern for protection of water quality and aquatic ecosystems
suggests that it is reasonable for the Corps to interpret the term "waters" to encompass
wetlands adjacent to waters as more conventionally defined. Following the lead of the
Environmental Protection Agency, see 38 Fed. Reg. 10834 (1973), the Corps has
determined that wetlands adjacent to navigable waters do, as a general matter, play a
key role in protecting and enhancing water quality:
"The regulation of activities that cause water pollution cannot rely on . . . artificial
lines . . . , but must focus on all waters that together form the entire aquatic system.
[*134] Water moves in hydrologic cycles, and the pollution of this part of the
aquatic system, regardless of whether it is above or below an ordinary high water

97

mark, or mean high tide line, will affect the water quality of the other waters within
that aquatic system." "For this reason, the landward limit of Federal jurisdiction
under Section 404 must include any adjacent wetlands that form the border of or
are in reasonable proximity to other waters of the United States, as these wetlands
are part of this aquatic system."
42 Fed.Reg. 37128 (1977).
We cannot say that the Corps' conclusion that adjacent wetlands are inseparably bound
up with the "waters" of the United States -- based as it is on the Corps' and EPA's technical
expertise -- is unreasonable. In view of the breadth of federal regulatory authority
contemplated by the Act itself and the inherent difficulties of defining precise bounds to
regulable waters, the Corps' ecological judgment about the relationship between waters
and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent
wetlands may be defined as waters under the Act. This holds true even for wetlands that
are not the result of flooding or permeation by water having its source in adjacent bodies
of open water. The Corps has concluded that wetlands may affect the water quality of
adjacent lakes, rivers, and streams even when the waters of those bodies do not actually
inundate the wetlands. For example, wetlands that are not flooded by adjacent waters
may still tend to drain into those waters. In such circumstances, the Corps has concluded
that wetlands may serve to filter and purify water draining into adjacent bodies of water,
see 33 C.F.R. § 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes,
rivers, and streams, and thus prevent flooding and erosion, see §§ 320.4(b)(2)(iv) and
(v). In addition, adjacent wetlands may
"serve significant natural biological functions, including food chain production,
general habitat, and nesting, spawning, rearing and resting sites for aquatic . . .
species."
§ 320.4(b)(2)(i). In short, the Corps has concluded that wetlands adjacent to lakes, rivers,
streams, and other bodies of water may function as integral parts of the aquatic
environment even when the moisture creating the wetlands does not find its source in the
adjacent bodies of water. Again, we cannot say that the Corps' judgment on these matters
is unreasonable, and we therefore conclude that a definition of "waters of the United
States" encompassing all wetlands adjacent to other bodies of water over which the Corps
has jurisdiction is a permissible interpretation of the Act. Because respondent's property
is part of a wetland that actually abuts on a navigable waterway, respondent was required
to have a permit in this case.9
9

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
98

B
Following promulgation of the Corps' interim final regulations in 1975, the Corps' assertion
of authority under § 404 over waters not actually navigable engendered some
congressional opposition. The controversy came to a head during Congress'
consideration of the Clean Water Act of 1977, a major piece of legislation aimed at
achieving "interim improvements within the existing framework" of the Clean Water Act.
H.R.Rep. No. 95139, pp. 1-2 (1977). In the end, however, as we shall explain, Congress
acquiesced in the administrative construction.
[The Court then cited portions of the legislative history of the enactment of the Clean
Water Act of 1977 that demonstrated attempts to narrow the definition of navigable waters
in the statute.]
***
The significance of Congress' treatment of the Corps' § 404 jurisdiction in its consideration
of the Clean Water Act of 1977 is twofold. First, the scope of the Corps' asserted
jurisdiction over wetlands was specifically brought to Congress' attention, and Congress
rejected measures designed to curb the Corps' jurisdiction, in large part because of its
concern that protection of wetlands would be unduly hampered by a narrowed definition
of "navigable waters." 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. See Bob Jones University v. United States, 461 U.S.
574, 599-601 (1983); United States v. Rutherford, 442 U.S. 544, 442 U.S. 554, and n.10
(1979).
Second, it is notable that even those who would have restricted the reach of the Corps'
jurisdiction would have done so not by removing wetlands altogether from the definition
of "waters of the United States," but only by restricting the scope of "navigable waters"
under § 404 to waters navigable in fact and their adjacent wetlands. In amending the
definition of "navigable waters" for purposes of § 404 only, the backers of the House bill
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 C.F.R. § 320.4(b)(4) (1986).
99

would have left intact the existing definition of "navigable waters" for purposes of § 301
of the Act, which generally prohibits discharges of pollutants into navigable waters. As the
House Report explained: "Navigable waters,' as used in section 301, includes all of the
waters of the United States, including their adjacent wetlands." H.R.Rep. No. 95139, p.
24 (1977). Thus, even those who thought that the Corps' existing authority under § 404
was too broad recognized (1) that the definition of "navigable waters" then in force for
both § 301 and § 404 was reasonably interpreted to include adjacent wetlands, (2) that
the water quality concerns of the Clean Water Act demanded regulation of at least some
discharges into wetlands, and (3) that whatever jurisdiction the Corps would retain over
discharges of fill material after passage of the 1977 legislation should extend to
discharges into wetlands adjacent to any waters over which the Corps retained
jurisdiction. These views provide additional support for a conclusion that Congress in
1977 acquiesced in the Corps' definition of waters as including adjacent wetlands.
Two features actually included in the legislation that Congress enacted in 1977 also
support the view that the Act authorizes the Corps to regulate discharges into wetlands.
First, in amending § 404 to allow federally approved state permit programs to supplant
regulation by the Corps of certain discharges of fill material, Congress provided that the
States would not be permitted to supersede the Corps' jurisdiction to regulate discharges
into actually navigable waters and waters subject to the ebb and flow of the tide, "including
wetlands adjacent thereto." CWA § 404(g)(1), 33 U.S.C.§ 1344(g)(1). Here, then,
Congress expressly stated that the term "waters" included adjacent wetlands.11 Second,
the 1977 Act authorized an appropriation of $6 million for completion by the Department
of Interior of a "National Wetlands Inventory" to assist the States "in the development and
operation of programs under this Act." CWA § 208(i)(2), 33U.S.C. § 1288(i)(2). The
enactment of this provision reflects congressional recognition that wetlands are a concern
of the Clean Water Act, and supports the conclusion that, in defining the waters covered
by the Act to include wetlands, the Corps is "implementing congressional policy, rather
than embarking on a frolic of its own." Red Lion Broadcasting Co. v. FCC, 395 U.S.367,
375 (1969).
C
We are thus persuaded that 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 fill material into wetlands adjacent to the "waters of the United
11

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."
100

States." The regulation in which the Corps has embodied this interpretation, by its terms,
includes the wetlands on respondent's property within the class of waters that may not be
filled without a permit; and, as we have seen, there is no reason to interpret the regulation
more narrowly than its terms would indicate. Accordingly, the judgment of the Court of
Appeals is
Reversed.
Questions and Comments
1.

The Supreme Court reviewed both the legality of the Corps’ regulation and the
legality of the Corps’ interpretation of its regulation. Landmark Supreme Court
administrative law decisions provide that an agency’s interpretation of its own
regulation is controlling unless it is plainly erroneous or inconsistent with the
regulation. See Auer v. Robbins, 519 U.S. 452, 461 (1997); Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945). Did the Sixth Circuit use that
approach when reviewing the Corps’ interpretation of “adjacent wetlands”? Does
the Supreme Court cite that precedent or apply that test in reviewing the Corps’
interpretation of “adjacent” wetlands?

2.

Groundwater v. Surface Water: Did the Corps’ regulations require a surface
water connection between wetlands and other waters for the wetlands to be
considered “adjacent” to the waters? Was there a scientific justification for the
Corps’ interpretation and did the Court accord that any deference? Keep this in
mind when reading the Supreme Court’s decision in Rapanos v. United States.
Incidentally, the Corps’ current regulations define “adjacent” to mean “bordering,
contiguous, or neighboring” and adjacent wetlands include wetlands “separated
from other waters of the United States by man-made dikes or barriers, natural river
berms, beach dunes and the like.” See 33 C.F.R. § 328.3(c)

3.

In reviewing the legality of the Corps’ rule that asserted jurisdiction over “adjacent
wetlands,” did the Court apply the Chevron analysis? Did the Court decide the
case at Step 1 or Step 2? It is interesting to compare the Supreme Court’s
application of the Chevron analysis in this case, Solid Waste Agency of Northern
Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States.

4.

Navigability and the Commerce Clause: Does the Court conclude that “waters”
must be “navigable” to be regulated under the Clean Water Act? Is the Court’s
articulation of the breadth of the Corps’ jurisdiction under the Act as broad as the
Callaway court’s?

5.

Note the Court’s focus on the purposes of the Clean Water Act and the legislative

101

history. How does the Corps’ interpretation of the statute advance the purposes of
the statute or advance Congress’ intent? This was a unanimous opinion from the
Court and it is interesting to compare the statutory analysis in this case with the
textualism adopted by the Supreme Court in many cases today.
6.

Legislative Acquiescence: What weight should courts accord to Congress’
failure to enact legislation that overturns an agency’s rules? Are you persuaded by
the Court’s discussion of Congressional acquiescence?

7.

Values and Functions: Recall our discussion about the values and functions of
wetlands in Chapter 1. The Riverside Bayview court acknowledges those values
and functions in its opinion and defers to the Corps’ scientific judgment in
regulating adjacent wetlands because of the values and functions that they provide
to the adjacent waters. Again, keep this in mind when reading the Supreme Court’s
decision in Rapanos v. United States.

8.

Adjacent to What? As noted above, the Corps’ 1982 regulations asserted
jurisdiction over wetlands adjacent to traditional navigable waters, adjacent to
interstate waters, adjacent to tributaries of traditional navigable waters or interstate
waters, and adjacent to isolated, intrastate waters the use or misuse of which could
affect interstate commerce. Which portions of the Corps’ regulations were
challenged in the Riverside Bayview case? Did the Court express any opinion
regarding the legality of regulating other wetlands?

9.

Post-Script: The wetlands at issue in the Riverside Bayview case were not
developed, but were later used as compensatory mitigation for another wetlands
development. See Royal C. Gardner, Lawyers, Swamps and Money 200 (Island
Press 2011).

C.

Isolated Wetlands and Waters

In 1986, the year after the Supreme Court’s decision in Riverside Bayview Homes, the
Corps again amended its regulatory definition of “waters of the United States.” The Corps
did not change the categories of waters that would be regulated as “waters of the United
States,” but renumbered the regulations, so that the definition of “waters of the United
States” now appears at 33 C.F.R. § 328.3. In both the 1982 and 1986 regulations, the
Corps defined “waters of the United States” to include certain isolated, intrastate waters
that were not traditional navigable waters but that could be regulated because of their ties
to interstate commerce. The 1986 regulation, which used essentially the same language
as the 1982 regulation, described the “isolated waters” that could be regulated as “waters
of the United States” in the following manner:

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33 C.F.R. § 328.3(a)(3)
All other waters such as intrastate lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows,
playa lakes or natural ponds, the use degradation or destruction of which could
affect interstate or foreign commerce, including any such waters:
(i) Which are or could be used by interstate or foreign travelers for recreational or
other purposes;
(ii) From which fish or shellfish could be taken and sold in interstate or foreign
commerce; or
(iii) Which are used or could be used for industrial purpose by industries in interstate
commerce

Although the Corps did not make any significant changes to the categories of “waters of
the United States” regulated in the rule itself, the agency provided further guidance in the
preamble to the rule regarding the types of “isolated waters” that would be regulated
under the Clean Water Act. See 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986). For
instance, the Corps indicated that certain isolated waters would generally not be regulated
as “waters of the United States,” although they could be regulated on a case-by-case
basis. Those included non-tidal irrigation ditches; artificial lakes or ponds that are used
for watering, irrigation, or settling basins; and various other artificially created waters.
The Migratory Bird Test: More significantly,
though, the Corps clarified that isolated waters
would generally be regulated under 33 C.F.R. §
328.3(a)(3) if the waters:
•
•
•
•

a. * * * are or would be used as habitat by
birds protected by Migratory Bird Treaties;
b. * * * are or would be used as habitat by
other migratory birds which cross state
lines;
c. * * * are or would be used as habitat for
endangered species; or
Photo 23 Photo by S. Johnson
d. used to irrigate crops sold in interstate
commerce.” See 51 Fed. Reg. at 41217.

As noted above, this “migratory bird rule” was not adopted as a regulation but included in
the preamble to the regulation as guidance. In the years following the amendment of the

103

rules, federal appellate courts reached opposing conclusions regarding the validity of the
“migratory bird rule.” The Ninth Circuit upheld regulation of artificial wetlands in basins
that were formerly used in salt production on the grounds that the Corps had determined
that the wetlands provided habitat for migratory birds and the endangered salt marsh
harvest mouse. See Leslie Salt v. United States, 896 F.2d 354 (9th Cir. 1990), cert. denied,
486 U.S. 1126 (1991). The Seventh Circuit, reviewing EPA’s version of the test, initially
invalidated the test, see Hoffman Homes, Inc. v. Administrator, United States EPA, 961
F.2d 1310 (7th Cir. 1992), but later upheld it. See Hoffman Homes, Inc. v. Administrator,
United States EPA 975 F.2d 1554 (7th Cir. 1992). The Fourth Circuit expressed deeper
concerns and a divided panel of the Circuit suggested that the Corps exceeded its
statutory authority in regulating isolated waters generally simply because they could,
rather than did, affect interstate commerce. See United States v. Wilson, 133 F.3d 251
(4th Cir. 1997).
The dispute over the Corps’ authority to regulate isolated waters reached the U.S.
Supreme Court in Solid Waste Agency of Northern Cook County v. United States Army
Corps of Engineers. Sixteen years after Riverside Bayview Homes, the Court was
reviewing another case focusing on the government’s Clean Water Act jurisdiction over
“waters of the United States.” Unlike the unanimous decision in Riverside Bayview
Homes, the Solid Waste Agency case generated greater division among the Court, which
issued a 5-4 decision. Justices Rehnquist, O’Connor, Scalia, Kennedy and Thomas were
in the majority, with Justices Stevens, Souter, Ginsburg, and Breyer dissenting.

Solid Waste Agency of
Northern Cook County, v.
United States Army Corps of
Engineers, et al.
531 U.S. 159 (2001)
CHIEF JUSTICE REHNQUIST
delivered the opinion of the Court.

Resources for the Case
Oral Argument Audio (from the Oyez Project)
Map of the site - now the Heron Woods State
Habitat Area - sold by SWANCC in 2001
Chicago Tribune news story re: permit denial
What is a balefill - Rhode Island Dept. of Envtl.
Mgmt.
SWANCC website
Unedited opinion
Google Map of all the cases in the coursebook

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Section 404(a) of the Clean Water Act (CWA or Act), 86 Stat. 884, as amended, 33 U.S.C.
§ 1344(a), regulates the discharge of dredged or fill material into “navigable waters.” The
United States Army Corps of Engineers (Corps), has interpreted § 404(a) to confer federal
authority over an abandoned sand and gravel pit in northern Illinois which provides habitat
for migratory birds. We are asked to decide whether the provisions of § 404(a) may be
fairly extended to these waters, and, if so, whether Congress could exercise such
authority consistent with the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. We answer
the first question in the negative and therefore do not reach the second.
Petitioner, the Solid Waste Agency of Northern Cook County (SWANCC), is a consortium
of 23 suburban Chicago cities and villages that united in an effort to locate and develop
a disposal site for baled nonhazardous solid waste. The Chicago Gravel Company
informed the municipalities of the availability of a 533-acre parcel, bestriding the Illinois
counties Cook and Kane, which had been the site of a sand and gravel pit mining
operation for three decades up until about 1960. Long since abandoned, the old mining
site eventually gave way to a successional stage forest, with its remnant excavation
trenches evolving into a scattering of permanent and seasonal ponds of varying size (from
under one-tenth of an acre to several acres) and depth (from several inches to several
feet). The municipalities decided to purchase the site for disposal of their baled
nonhazardous solid waste. By law, SWANCC was required to file for various permits from
Cook County and the State of Illinois before it could begin operation of its balefill project.
In addition, because the operation called for the filling of some of the permanent and
seasonal ponds, SWANCC contacted federal respondents (hereinafter respondents),
including the Corps, to determine if a federal landfill permit was required under § 404(a)
of the CWA, 33 U.S.C. § 1344(a).
Section 404(a) grants the Corps authority to issue permits “for the discharge of dredged
or fill material into the navigable waters at specified disposal sites.” Ibid. The term
“navigable waters” is defined under the Act as “the waters of the United States, including
the territorial seas.” § 1362(7). The Corps has issued regulations defining the term “waters
of the United States” to include “waters such as intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds, the use, degradation or destruction of which
could affect interstate or foreign commerce . . . .” 33 C.F.R. § 328.3(a)(3) (1999).
In 1986, in an attempt to “clarify” the reach of its jurisdiction, the Corps stated that § 404(a)
extends to intrastate waters:
“a.
“b.

Which are or would be used as habitat by birds protected by Migratory Bird
Treaties; or
Which are or would be used as habitat by other migratory birds which cross state
lines; or

105

“c.
“d.

Which are or would be used as habitat for endangered species; or
Used to irrigate crops sold in interstate commerce.”

51 Fed. Reg. 41217.
This last promulgation has been dubbed the “Migratory Bird Rule.”1 The Corps initially
concluded that it had no jurisdiction over the site because it contained no “wetlands,” or
areas which support “vegetation typically adapted for life in saturated soil conditions,” 33
C.F.R. § 328.3(b) (1999). However, after the Illinois Nature Preserves Commission
informed the Corps that a number of migratory bird species had been observed at the
site, the Corps reconsidered and ultimately asserted jurisdiction over the balefill site
pursuant to subpart (b) of the “Migratory Bird Rule.” The Corps found that approximately
121 bird species had been observed at the site, including several known to depend upon
aquatic environments for a significant portion of their life requirements. Thus, on
November 16, 1987, the Corps formally “determined that the seasonally ponded,
abandoned gravel mining depressions located on the project site, while not wetlands, did
qualify as ‘waters of the United States’ . . . based upon the following criteria: (1) the
proposed site had been abandoned as a gravel mining operation; (2) the water areas and
spoil piles had developed a natural character; and (3) the water areas are used as habitat
by migratory bird [sic] which cross state lines.” * * * During the application process,
SWANCC made several proposals to mitigate the likely displacement of the migratory
birds and to preserve a great blue heron rookery located on the site. Its balefill project
ultimately received the necessary local and state approval. By 1993, SWANCC had
received a special use planned development permit from the Cook County Board of
Appeals, a landfill development permit from the Illinois Environmental Protection Agency,
and approval from the Illinois Department of Conservation.
Despite SWANCC’s securing the required water quality certification from the Illinois
Environmental Protection Agency, the Corps refused to issue a § 404(a) permit. * * *
Petitioner filed suit under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., in the
Northern District of Illinois challenging both the Corps’ jurisdiction over the site and the
merits of its denial of the §404(a) permit. The District Court granted summary judgment
to respondents on the jurisdictional issue, and petitioner abandoned its challenge to the
Corps’ permit decision. On appeal to the Court of Appeals for the Seventh Circuit,
petitioner renewed its attack on respondents’ use of the “Migratory Bird Rule” to assert
jurisdiction over the site. Petitioner argued that respondents had exceeded their statutory
authority in interpreting the CWA to cover nonnavigable, isolated, intrastate waters based
upon the presence of migratory birds and, in the alternative, that Congress lacked the
1

The Corps issued the "Migratory Bird Rule" without following the notice and comment
procedures outlined in the Administrative Procedure Act, 5 U.S.C. § 553.
106

power under the Commerce Clause to grant such regulatory jurisdiction. The Court of
Appeals began its analysis with the constitutional question, holding that Congress has the
authority to regulate such waters based upon “the cumulative impact doctrine, under
which a single activity that itself has no discernible effect on interstate commerce may still
be regulated if the aggregate effect of that class of activity has a substantial impact on
interstate commerce.” * * * The aggregate effect of the “destruction of the natural habitat
of migratory birds” on interstate commerce, the court held, was substantial because each
year millions of Americans cross state lines and spend over a billion dollars to hunt and
observe migratory birds.2 * * * The Court of Appeals then turned to the regulatory
question. The court held that the CWA reaches as many waters as the Commerce Clause
allows and, given its earlier Commerce Clause ruling, it therefore followed that
respondents’ “Migratory Bird Rule” was a reasonable interpretation of the Act. * * * We
granted certiorari, * * * and now reverse.
Congress passed the CWA for the stated purpose of “restor[ing] and maintain[ing] the
chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §1251(a). In
so doing, Congress chose to “recognize, preserve, and protect the primary responsibilities
and rights of States to prevent, reduce, and eliminate pollution, to plan the development
and use (including restoration, preservation, and enhancement) of land and water
resources, and to consult with the Administrator in the exercise of his authority under this
chapter.” § 1251(b). Relevant here, § 404(a) authorizes respondents to regulate the
discharge of fill material into “navigable waters,” 33 U.S.C. § 1344(a), which the statute
defines as “the waters of the United States, including the territorial seas,” § 1362(7).
Respondents have interpreted these words to cover the abandoned gravel pit at issue
here because it is used as habitat for migratory birds. We conclude that the “Migratory
Bird Rule” is not fairly supported by the CWA.
This is not the first time we have been called upon to evaluate the meaning of § 404(a).
In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), we held that the
Corps had § 404(a) jurisdiction over wetlands that actually abutted on a navigable
waterway. In so doing, we noted that the term “navigable” is of “limited import” and that
Congress evidenced its intent to “regulate at least some waters that would not be deemed
‘navigable’ under the classical understanding of that term.” Id., at 133. But our holding
was based in large measure upon Congress’ unequivocal acquiescence to, and approval
of, the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable
waters. See id., at 135–139. We found that Congress’ concern for the protection of water
2

Relying upon its earlier decision in Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (CA7
1993), and a report from the United States Census Bureau, the Court of Appeals found
that in 1996 approximately 3.1 million Americans spent $1.3 billion to hunt migratory birds
(with 11 percent crossing state lines to do so) as another 17.7 million Americans observed
migratory birds (with 9.5 million traveling for the purpose of observing shorebirds). See
191 F.3d, at 850.
107

quality and aquatic ecosystems indicated its intent to regulate wetlands “inseparably
bound up with the ‘waters’ of the United States.” Id., at 134.
It was the significant nexus between the wetlands and “navigable waters” that informed
our reading of the CWA in Riverside Bayview Homes. Indeed, we did not “express any
opinion” on 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 . . . .” Id., at 131–132, n.8. In
order to rule for respondents here, we would have to hold that the jurisdiction of the Corps
extends to ponds that are not adjacent to open water. But we conclude that the text of the
statute will not allow this.
Indeed, the Corps’ original interpretation of the CWA, promulgated two years after its
enactment, is inconsistent with that which it espouses here. Its 1974 regulations defined
§ 404(a)’s “navigable waters” to mean “those waters of the United States which are
subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or
may be in the future susceptible for use for purposes of interstate or foreign commerce.”
33 C.F.R. § 209.120(d)(1). The Corps emphasized that “[i]t is the water body’s capability
of use by the public for purposes of transportation or commerce which is the determinative
factor.” § 209.260(e)(1). Respondents put forward no persuasive evidence that the Corps
mistook Congress’ intent in 1974.3
Respondents next contend that whatever its original aim in 1972, Congress charted a
new course five years later when it approved the more expansive definition of “navigable
waters” found in the Corps’ 1977 regulations. In July 1977, the Corps formally adopted
33 C.F.R. § 323.2(a)(5) (1978), which defined “waters of the United States” to include
“isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that
are not part of a tributary system to interstate waters or to navigable waters of the United
States, the degradation or destruction of which could affect interstate commerce.”
Respondents argue that Congress was aware of this more expansive interpretation during
its 1977 amendments to the CWA. Specifically, respondents point to a failed House bill,
H.R. 3199, that would have defined “navigable waters” as “all waters which are presently
used, or are susceptible to use in their natural condition or by reasonable improvement
3

Respondents refer us to portions of the legislative history that they believe indicate
Congress’ intent to expand the definition of “navigable waters.” Although the Conference
Report includes the statement that the conferees “intend that the term ‘navigable waters’
be given the broadest possible constitutional interpretation,” S. Conf. Rep. No. 92–1236,
p. 144 (1972), neither this, nor anything else in the legislative history to which respondents
point, signifies that Congress intended to exert anything more than its commerce power
over navigation. Indeed, respondents admit that the legislative history is somewhat
ambiguous. See Brief for Federal Respondents 24.
108

as a means to transport interstate or foreign commerce.” 123 Cong. Rec. 10420, 10434
(1977).4 They also point to the passage in § 404(g)(1) that authorizes a State to apply to
the Environmental Protection Agency for permission “to administer its own individual and
general permit program for the discharge of dredged or fill material into the navigable
waters (other than those waters which are presently used, or are susceptible to use in
their natural condition or by reasonable improvement as a means to transport interstate
or foreign commerce . . . including wetlands adjacent thereto) within its jurisdiction . . . .”
33 U.S.C. § 1344(g)(1). The failure to pass legislation that would have overturned the
Corps’ 1977 regulations and the extension of jurisdiction in § 404(g) to waters “other than”
traditional “navigable waters,” respondents submit, indicate that Congress recognized
and accepted a broad definition of “navigable waters” that includes nonnavigable,
isolated, intrastate waters.
Although we have recognized congressional acquiescence to administrative
interpretations of a statute in some situations, we have done so with extreme care.
* * * “[F]ailed legislative proposals are ‘a particularly dangerous ground on which to rest
an interpretation of a prior statute.’” Central Bank of Denver, N. A. v. First Interstate Bank
of Denver, N. A., 511 U.S. 164, 187 (1994) (quoting Pension Benefit Guaranty
Corporation v. LTV Corp., 496 U.S. 633, 650 (1990)). A bill can be proposed for any
number of reasons, and it can be rejected for just as many others. The relationship
between the actions and inactions of the 95th Congress and the intent of the 92d
Congress in passing § 404(a) is also considerably attenuated. Because “subsequent
history is less illuminating than the contemporaneous evidence,” Hagen v. Utah, 510 U.S.
399, 420 (1994), respondents face a difficult task in overcoming the plain text and import
of § 404(a).
We conclude that respondents have failed to make the necessary showing that the failure
of the 1977 House bill demonstrates Congress’ acquiescence to the Corps’ regulations
or the “Migratory Bird Rule,” which, of course, did not first appear until 1986. Although
respondents cite some legislative history showing Congress’ recognition of the Corps’
assertion of jurisdiction over “isolated waters,”* * * as we explained in Riverside Bayview
Homes, “[i]n both Chambers, debate on the proposals to narrow the definition of navigable
waters centered largely on the issue of wetlands preservation.” 474 U.S., at 136. Beyond
Congress’ desire to regulate wetlands adjacent to “navigable waters,” respondents point
us to no persuasive evidence that the House bill was proposed in response to the Corps’
claim of jurisdiction over nonnavigable, isolated, intrastate waters or that its failure
indicated congressional acquiescence to such jurisdiction.
Section 404(g) is equally unenlightening. In Riverside Bayview Homes we recognized that
4

While this bill passed in the House, a similarly worded amendment to a bill originating
in the Senate, S. 1952, failed. See 123 Cong. Rec. 26710, 26728 (1977).
109

Congress intended the phrase “navigable waters” to include “at least some waters that
would not be deemed ‘navigable’ under the classical understanding of that term.” Id., at
133. But § 404(g) gives no intimation of what those waters might be; it simply refers to
them as “other . . . waters.” Respondents conjecture that “other . . . waters” must
incorporate the Corps’ 1977 regulations, but it is also plausible, as petitioner contends,
that Congress simply wanted to include all waters adjacent to “navigable waters,” such
as nonnavigable tributaries and streams. The exact meaning of § 404(g) is not before us
and we express no opinion on it, but for present purposes it is sufficient to say, as we did
in Riverside Bayview Homes, that “§ 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’) . . . .” Id., at 138,
n.11.* * *
We thus decline respondents’ invitation to take what they see as the next ineluctable step
after Riverside Bayview Homes: holding that isolated ponds, some only seasonal, wholly
located within two Illinois counties, fall under § 404(a)’s definition of “navigable waters”
because they serve as habitat for migratory birds. As counsel for respondents conceded
at oral argument, such a ruling would assume that “the use of the word navigable in the
statute . . . does not have any independent significance.” * * * We cannot agree that
Congress’ separate definitional use of the phrase “waters of the United States” constitutes
a basis for reading the term “navigable waters” out of the statute. We said in Riverside
Bayview Homes that the word “navigable” in the statute was of “limited effect” and went
on to hold that § 404(a) extended to nonnavigable wetlands adjacent to open waters. But
it is one thing to give a word limited effect and quite another to give it no effect whatever.
The term “navigable” has at least the import of showing us what Congress had in mind as
its authority for enacting the CWA: its traditional jurisdiction over waters that were or had
been navigable in fact or which could reasonably be so made. See, e.g., United States v.
Appalachian Elec. Power Co., 311 U.S. 377, 407–408 (1940).
Respondents— relying upon all of the arguments addressed above— contend that, at the
very least, it must be said that Congress did not address the precise question of § 404(a)’s
scope with regard to nonnavigable, isolated, intrastate waters, and that, therefore, we
should give deference to the “Migratory Bird Rule.” See, e.g., Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We find § 404(a) to be
clear, but even were we to agree with respondents, we would not extend Chevron
deference here.
Where an administrative interpretation of a statute invokes the outer limits of Congress’
power, we expect a clear indication that Congress intended that result. See Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568,
575 (1988). This requirement stems from our prudential desire not to needlessly reach
constitutional issues and our assumption that Congress does not casually authorize

110

administrative agencies to interpret a statute to push the limit of congressional authority.
See ibid. This concern is heightened where the administrative interpretation alters the
federal state framework by permitting federal encroachment upon a traditional state
power. See United States v. Bass, 404 U.S. 336, 349 (1971) (“[U]nless Congress conveys
its purpose clearly, it will not be deemed to have significantly changed the federal-state
balance”). Thus, “where an otherwise acceptable construction of a statute would raise
serious constitutional problems, the Court will construe the statute to avoid such problems
unless such construction is plainly contrary to the intent of Congress.” DeBartolo, supra,
at 575.
Twice in the past six years we have reaffirmed the proposition that the grant of authority
to Congress under the Commerce Clause, though broad, is not unlimited. See United
States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).
Respondents argue that the “Migratory Bird Rule” falls within Congress’ power to regulate
intrastate activities that “substantially affect” interstate commerce. They note that the
protection of migratory birds is a “national interest of very nearly the first magnitude,”
Missouri v. Holland, 252 U.S. 416, 435 (1920), and that, as the Court of Appeals found,
millions of people spend over a billion dollars annually on recreational pursuits relating to
migratory birds. These arguments raise significant constitutional questions. For example,
we would have to evaluate the precise object or activity that, in the aggregate,
substantially affects interstate commerce. This is not clear, for although the Corps has
claimed jurisdiction over petitioner’s land because it contains water areas used as habitat
by migratory birds, respondents now, post litem motam, focus upon the fact that the
regulated activity is petitioner’s municipal landfill, which is “plainly of a commercial
nature.” * * * But this is a far cry, indeed, from the “navigable waters” and “waters of the
United States” to which the statute by its terms extends.
These are significant constitutional questions raised by respondents’ application of their
regulations, and yet we find nothing approaching a clear statement from Congress that it
intended § 404(a) to reach an abandoned sand and gravel pit such as we have here.
Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within
the “Migratory Bird Rule” would result in a significant impingement of the States’ traditional
and primary power over land and water use. See, e.g., Hess v. Port Authority TransHudson Corporation, 513 U.S. 30, 44 (1994) (“[R]egulation of land use [is] a function
traditionally performed by local governments”). Rather than expressing a desire to
readjust the federal-state balance in this manner, Congress chose to “recognize,
preserve, and protect the primary responsibilities and rights of States . . . to plan the
development and use . . . of land and water resources . . . .” 33 U.S.C. § 1251(b). We
thus read the statute as written to avoid the significant constitutional and federalism
questions raised by respondents’ interpretation, and therefore reject the request for
administrative deference.8
8

Because violations of the CWA carry criminal penalties, see 33 U. S.C. § 1319(c)(2),
111

We hold that 33 C.F.R. § 328.3(a)(3) (1999), as clarified and applied to petitioner’s balefill
site pursuant to the “Migratory Bird Rule,” 51 Fed. Reg. 41217 (1986), exceeds the
authority granted to respondents under §404(a) of the CWA. The judgment of the Court
of Appeals for the Seventh Circuit is therefore
Reversed.
Questions and Comments
1.

Did the Solid Waste Agency case involve wetlands? If not, what implications does
the case have for regulation of wetlands?

2.

Artificial Wetlands: Note that the ponds in Solid Waste Agency of Northern Cook
County were artificially created. Even though the Court did not find jurisdiction over
the ponds in this case, man-made ponds and wetlands can be regulated as “waters
of the United States” under the Clean Water Act. See, e.g., Leslie Salt Co. v. United
States, 896 F.2d 354 (9th Cir. 1990); Texas Mun. Power Agency v. EPA, 836 F.2d
1482 (5th Cir. 1988).

3.

Could the “migratory bird rule” have been challenged on procedural grounds? With
what success?

4.

The “migratory bird rule” was not adopted as a rule through notice and comment
rulemaking. Is it appropriate, therefore, to use the Chevron analysis to review the
Corps’ decision? If Chevron doesn’t apply, should courts accord the agency any
deference? More or less than under the Chevron analysis? What weight should
the Corps’ 1974 rules carry, in light of the fact that the Corps rejected the reasoning
behind them almost 25 years before the Solid Waste Agency decision?

5.

Does the Court use the Chevron analysis in this case? If so, does it decide the
case at step 1 or step 2? What canons of statutory analysis are central to the
Court’s holding?

6.

In Riverside Bayview Homes, the Court interpreted the Clean Water Act broadly in
accordance with its purposes and relied on evidence of Congressional
acquiescence in the Corps’ interpretation of the statute to uphold the Corps’
regulation of adjacent wetlands. Does the Court ignore those purposes and
evidence of Congressional acquiescence in this case? Does it focus on other

petitioner invokes the rule of lenity as another basis for rejecting the Corps' interpretation
of the CWA. Brief for Petitioner 31–32. We need not address this alternative argument.
See United States v. Shabani, 513 U.S. 10, 17 (1994).
112

statutory goals? The dissenting Justices argued for a broad interpretation of the
statute consistent with the purposes articulated in Riverside Bayview Homes. They
noted, for instance, that the statute protects significant natural biological functions,
including food chain production, general habitat, and nesting spawning, rearing
and resting sites for aquatic wildlife and that isolated waters provide those
functions, regardless of whether they have any connection to traditional navigable
waters. See 531 U.S. at 181-182 (Stevens, dissenting).
7.

Riverside Bayview Homes and the D.C. District Court’s Callaway decision seemed
to approve a broad reading of jurisdiction under the Clean Water Act to extend to
all waters that could be regulated under the Commerce Clause. Does the majority
in this case adopt a narrower vision of the breadth of authority? The dissenting
Justices argued that Congress’ Commerce Clause power over navigation is clearly
more limited than Congress’ Commerce Clause power generally. See 531 U.S. at
181 (Stevens, dissenting).
While the Court does not overrule Riverside Bayview Homes, the majority makes
it clear that the prior case did not address isolated waters and that the Court upheld
the regulation of adjacent wetlands in Riverside Bayview Homes because of the
“significant nexus” between the wetlands and more traditional “navigable waters.”
Is the Court saying that the Corps can only regulate traditional navigable waters or
waters that have some connection to traditional navigable waters? The dissenting
justices asserted that the Court’s decision could limit jurisdiction to actually
navigable waters, their tributaries, and wetlands adjacent to each. See 531 U.S. at
177 (Stevens, dissenting).

8.

How broad is the Court’s decision in the Solid Waste Agency case? Is the Court
simply striking down the migratory bird test, or is it invalidating the regulation of
isolated waters more generally? If the Corps can regulate isolated waters after the
Solid Waste Agency decision, which isolated waters can it regulate?

9.

Did the Court reach the question of whether the regulation of isolated waters based
on the migratory bird test violated the Commerce Clause? The dissent argued that
such regulation was clearly constitutional. The portion of the dissenting opinion
addressing that issue follows. Are you persuaded? For various views on the impact
of the Solid Waste Agency decision shortly after the Court issued the decision, see
Robin Kundis Craig, Beyond SWANCC: The New Federalism and Clean Water Act
Jurisdiction, 33 Envtl. L. 113 (2003); Christine A. Klein, The Environmental
Commerce Clause, 27 Harv. Envtl. L. Rev. 1 (2003); Bradford C. Mank, The Murky
Future of the Clean Water Act After SWANCC: Using a Hydrological Connection
Approach to Saving the Clean Water Act, 30 Ecology L.Q. 811 (2003). For an
exploration of the issue published prior to the Lucas decision, see Stephen M.

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Johnson, Federal Regulation of Isolated Wetlands, 23 Envtl. L. 1 (1993). For a
defense of the constitutionality of federal regulation of isolated wetlands, see Blake
Hudson and Mike Hardig, Isolated Wetland Commons and the Constitution, 2014
B.Y.U. L. Rev. 1443.

Solid Waste Agency of Northern Cook County, v. United States Army
Corps of Engineers, et al.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
***
IV
Because I am convinced that the Court's miserly construction of the statute is incorrect, I
shall comment briefly on petitioner's argument that Congress is without power to prohibit
it from filling any part of the 31 acres of ponds on its property in Cook County, Illinois. The
Corps' exercise of its § 404 permitting power over "isolated" waters that serve as habitat
for migratory birds falls well within the boundaries set by this Court's Commerce Clause
jurisprudence.
In United States v. Lopez, 514 U.S. 549, 558-559 (1995), this Court identified "three broad
categories of activity that Congress may regulate under its commerce power": (1)
channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons
and things in interstate commerce; and (3) activities that "substantially affect" interstate
commerce. Ibid. The migratory bird rule at issue here is properly analyzed under the third
category. In order to constitute a proper exercise of Congress' power over intrastate
activities that "substantially affect" interstate commerce, it is not necessary that each
individual instance of the activity substantially affect commerce; it is enough that, taken
in the aggregate, the class of activities in question has such an effect. Perez v. United
States, 402 U.S. 146 (1971) (noting that it is the "class" of regulated activities, not the
individual instance, that is to be considered in the "affects" commerce analysis); see also
Hodel, 452 U.S., at 277; Wickard v. Filburn, 317 U.S. 111, 127-128 (1942).
The activity being regulated in this case (and by the Corps' § 404 regulations in general)
is the discharge of fill material into water. The Corps did not assert jurisdiction over
petitioner's land simply because the waters were "used as habitat by migratory birds." It
asserted jurisdiction because petitioner planned to discharge fill into waters "used as
habitat by migratory birds." Had petitioner intended to engage in some other activity
besides discharging fill (i. e., had there been no activity to regulate), or, conversely, had

114

the waters not been habitat for migratory birds (i. e., had there been no basis for federal
jurisdiction), the Corps would never have become involved in petitioner's use of its land.
There can be no doubt that, unlike the class of activities Congress was attempting to
regulate in United States v. Morrison, 529 U.S. 598, 613 (2000) ("[g]endermotivated
crimes"), and Lopez, 514 U.S., at 561 (possession of guns near school property), the
discharge of fill material into the Nation's waters is almost always undertaken for
economic reasons. See V. Albrecht & B. Goode, Wetland Regulation in the Real World,
Exh. 3 (Feb. 1994) (demonstrating that the overwhelming majority of acreage for which §
404 permits are sought is intended for commercial, industrial, or other economic use).15
Moreover, no one disputes that the discharge of fill into "isolated" waters that serve as
migratory bird habitat will, in the aggregate, adversely affect migratory bird populations.
See, e.g., 1 Secretary of the Interior, Report to Congress, The Impact of Federal
Programs on Wetlands: The Lower Mississippi Alluvial Plain and the Prairie Pothole
Region 79-80 (Oct. 1988) (noting that "isolated," phase 3 waters "are among the most
important and also [the] most threatened ecosystems in the United States" because
"[t]hey are prime nesting grounds for many species of North American waterfowl ... " and
provide "[u]p to 50 percent of the [D. S.] production of migratory waterfowl"). Nor does
petitioner dispute that the particular waters it seeks to fill are home to many important
species of migratory birds, including the second-largest breeding colony of Great Blue
Herons in northeastern Illinois, App. to Pet. for Cert. 3a, and several species of waterfowl
protected by international treaty and Illinois endangered species laws, Brief for Federal
Respondents 7.16
In addition to the intrinsic value of migratory birds, see Missouri v. Holland, 252 D. S. 416,
435 (1920) (noting the importance of migratory birds as "protectors of our forests and our
crops" and as "a food supply"), it is undisputed that literally millions of people regularly
participate in birdwatching and hunting and that those activities generate a host of
commercial activities of great value.17 The causal connection between the filling of
15

The fact that petitioner can conceive of some people who may discharge fill for
noneconomic reasons does not weaken the legitimacy of the Corps' jurisdictional claims.
As we observed in Perez v. United States, 402 U.S. 146 (1971), "[w]here the class of
activities is regulated and that class is within the reach of federal power, the courts have
no power to excise, as trivial, individual instances of the class." Id., at 154 (internal
quotation marks omitted).
16

Other bird species using petitioner's site as habitat include the" 'Great Egret, Greenbacked Heron, Black-crowned Night Heron, Canada Goose, Wood Duck, Mallard,
Greater Yellowlegs, Belted Kingfisher, Northern Waterthrush, Louisiana Waterthrush,
Swamp Sparrow, and Red-winged Blackbird.' " Brief for Petitioner 4, n.3.
17

In 1984, the U. S. Congress Office of Technology Assessment found that, in 1980, 5.3
115

wetlands and the decline of commercial activities associated with migratory birds is not
"attenuated," Morrison, 529 U.S., at 612; it is direct and concrete. Cf. Gibbs v. Babbitt,
214 F.3d 483, 492-493 (CA4 2000) ("The relationship between red wolf takings and
interstate commerce is quite direct-with no red wolves, there will be no red wolf related
tourism ... ").
Finally, the migratory bird rule does not blur the "distinction between what is truly national
and what is truly local." Morrison, 529 U.S., at 617-618. Justice Holmes cogently observed
in Missouri v. Holland that the protection of migratory birds is a textbook example of a
national problem. 252 U.S., at 435 ("It is not sufficient to rely upon the States [to protect
migratory birds]. The reliance is vain ... "). The destruction of aquatic migratory bird
habitat, like so many other environmental problems, is an action in which the benefits
(e.g., a new landfill) are disproportionately local, while many of the costs (e.g., fewer
migratory birds) are widely dispersed and often borne by citizens living in other States. In
such situations, described by economists as involving "externalities," federal regulation is
both appropriate and necessary. * * * Identifying the Corps' jurisdiction by reference to
waters that serve as habitat for birds that migrate over state lines also satisfies this Court's
expressed desire for some "jurisdictional element" that limits federal activity to its proper
scope. Morrison, 529 U.S., at 612.
The power to regulate commerce among the several States necessarily and properly
includes the power to preserve the natural resources that generate such commerce. Cf.
Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 953 (1982) (holding water to be an
"article of commerce"). Migratory birds, and the waters on which they rely, are such
resources. Moreover, the protection of migratory birds is a well established federal
responsibility. As Justice Holmes noted in Missouri v. Holland, the federal interest in
protecting these birds is of "the first magnitude." 252 U.S., at 435. Because of their
transitory nature, they "can be protected only by national action." Ibid.
Whether it is necessary or appropriate to refuse to allow petitioner to fill those ponds is a
question on which we have no voice. Whether the Federal Government has the power to
require such permission, however, is a question that is easily answered. If, as it does, the
Commerce Clause empowers Congress to regulate particular "activities causing air or
water pollution, or other environmental hazards that may have effects in more than one
State," Hodel, 452 U.S., at 282, it also empowers Congress to control individual actions
that, in the aggregate, would have the same effect. Perez, 402 U.S., at 154; Wickard, 317

million Americans hunted migratory birds, spending $638 million. * * * More than 100
million Americans spent almost $14.8 billion in 1980 to watch and photograph fish and
wildlife. Ibid. Of 17.7 million birdwatchers, 14.3 million took trips in order to observe, feed,
or photograph waterfowl, and 9.5 million took trips specifically to view other waterassociated birds, such as herons like those residing at petitioner's site. * * *
116

U.S., at 127-128.18 There is no merit in petitioner's constitutional argument.
Because I would affirm the judgment of the Court of Appeals, I respectfully dissent.

LEARN MORE
Although we haven’t covered the Commerce Clause in detail here, there is a very helpful CALI exercise,
authored by Professor Robin Craig, that examines the Commerce Clause and Federalism issues in the
context of environmental law. If you are a law student at a CALI member school, you can access the lesson
at: http://www.cali.org/lesson/1142

D.

Repercussions of SWANCC - Isolated Waters, Non-Navigable Tributaries
and Their Adjacent Wetlands

While it was clear that the Supreme Court invalidated the Corps’ regulation of isolated
waters based on the “migratory bird rule,” it was unclear whether the Court was placing
further limits on the Clean Water Act jurisdiction over “waters of the United States.” As
noted above, the SWANCC court indicated that Court’s decision to uphold the regulation
of adjacent wetlands in Riverside Bayview was based on the “significant nexus” between
those wetlands and other waters and the SWANCC Court indicated that the term
“navigable” in the Clean Water Act “has at least the import of showing us what Congress
had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters
that were or had been navigable in fact or which could reasonably be so made.” 531 U.S.
at 172. Furthermore, in response to arguments that the legislative history of the Clean
Water Act demonstrated that Congress intended that “navigable waters” be given “the
broadest possible constitutional interpretation”, the SWANCC Court stressed that the
legislative history suggested that Congress only intended to exert its “commerce power
over navigation.” Id. at 168, n.3.
Consequently, it was unclear, after SWANCC, whether the Corps and EPA could continue
to exercise jurisdiction over (1) isolated waters that have a sufficient connection to
18

JUSTICE THOMAS is the only Member of the Court who has expressed disagreement
with the "aggregation principle." United States v. Lopez, 514 U.S. 549, 600 (1995)
(concurring opinion).
117

interstate commerce, other than through the “migratory bird rule”; and (2) non-navigable
tributaries of traditionally navigable waters and wetlands adjacent to those non-navigable
tributaries.
Depending on how the decision was interpreted, the impact on regulated waters could
have been significant. A report prepared for the Association of State Wetlands Managers
after the SWANCC decision suggested that if the Court’s decision were interpreted to
allow the government to regulate only traditionally navigable waters and wetlands
adjacent to those waters, 80% of the nation’s wetlands would be excluded from federal
regulation under the Clean Water Act. See Jon Kusler, State Regulation of Wetlands to
Fill the Gap 6 (Association of State Wetlands Managers, Inc., 2004). In that scenario, the
major types of wetlands that would be unregulated included prairie potholes, wet
meadows, river fringing wetlands along non-navigable rivers and streams, many forested
wetlands, playas, and vernal pools. Id. The report suggested that up to 95% of the waters
in Arizona, 66% of Florida’s wetlands and 90% of Wisconsin’s wetlands could be outside
of federal regulation, depending on the interpretation of the SWANCC decision. If, on the
other hand, the SWANCC decision were interpreted to allow the government to regulate
traditionally navigable waters, all of their tributaries, and wetlands adjacent to those
waters and tributaries, only 40% of the nation’s wetlands would be excluded from federal
regulation. Id. at 7.
Although States could, theoretically, have regulated the waters that would no longer be
subject to federal regulation after SWANCC, most States did not have such regulatory
programs in place. At the time of the SWANCC decision, thirty-two States did not have
programs to regulate isolated freshwater wetlands. Id. at 13. Prior to SWANCC, those
States primarily relied on the federal regulatory program and their ability to participate in
the permitting program through the Clean Water Act Section 401 certification process
(described in Chapter 6) to protect those waters. Id. A few States, including Indiana, Ohio,
North Carolina and South Carolina, expanded their State programs to regulate isolated
wetlands after SWANCC, but many did not. Id. at 13-14.
1.

Regulatory Response

Shortly after the Court’s decision in SWANCC, the General Counsel of EPA and the Chief
Counsel of the Corps issued a joint memorandum addressing the Court’s ruling. In the
guidance, the agencies adopted a narrow reading of the ruling. Although the agencies
acknowledged that the decision invalidated jurisdiction over isolated waters based on the
“migratory bird rule”, the guidance suggested that regulators could determine, on a caseby-case basis, that isolated waters could be regulated under the Clean Water Act if their
use, degradation, or destruction could affect interstate or foreign commerce and that nonnavigable isolated waters might be regulated if they had a “significant nexus” to other
waters of the United States. Id. § 5. It would be more difficult and time-consuming to

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demonstrate the ties to interstate commerce on a case-by-case basis without relying on
the “migratory bird rule,” but the guidance suggested that such regulation was still
appropriate after the SWANCC ruling.
The guidance also addressed the agencies’ authority to regulate tributaries of navigable
waters and wetlands adjacent to those tributaries. Specifically, the guidance provided that
“the holding, the facts, and the reasoning of United States v. Riverside Bayview Homes
continue to provide authority for the EPA and the Corps to assert jurisdiction over ... all of
the traditional navigable waters, all interstate waters, all tributaries to navigable or
interstate waters, upstream to the highest reaches of the tributary systems, and over all
wetlands adjacent to any and all of those waters.” Id.
Two years later, after a change in presidential administrations, the agencies updated their
guidance. See 68 Fed. Reg. 1995 (Jan. 15, 2003). The 2003 guidance indicated that
“generally speaking” the Corps would continue to assert jurisdiction over all tributaries,
including non-navigable tributaries, of navigable waters, and to wetlands adjacent to
those tributaries. 68 Fed. Reg. at 1996. Regarding non-navigable isolated intrastate
waters, the guidance expressed skepticism that the agencies could assert jurisdiction
over those waters based on other ties to interstate commerce, but authorized regulators
to continue to do so on a case-by-case basis with approval from Headquarters. Id.
In January 2003, the Corps and EPA also began the process of developing a new rule to
clarify the definition of “waters of the United States” in light of the SWANCC decision by
issuing an advance notice of proposed rulemaking. See 68 Fed. Reg. 1991 (Jan. 15,
2003). The agencies received more than 130,000 comments on the notice and the
comments overwhelmingly supported a narrow interpretation of SWANCC and broad
federal jurisdiction. See Jon Kusler, State Regulation of Wetlands to Fill the Gap 8
(Association of State Wetlands Managers, Inc. 2004). Forty-three States submitted
comments and forty of those States encouraged the agencies to retain broad federal
jurisdiction over “waters of the United States.” Id. Many States were concerned that a
broad reading of SWANCC would make it difficult to protect wetlands in their States. Id.
After more than 200 members of Congress signed a letter, in November 2003, asking the
Corps and EPA not to issue new rules, EPA announced, in December 2003, that the
agencies would not be moving forward with new rules at that time. Id.

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2.

Legislative Response

While the agencies were developing guidance to respond to SWANCC, Congress was
also focusing on the issue. In 2003, the Clean Water Authority Restoration Act was
introduced in the House and Senate. See S. 473, 108th Cong. 1st Sess. (2003); H.R. 962,
108th Cong., 1st Sess. (2003). The legislation would restore an expansive definition of
“waters of the United States” to include “all waters subject to the ebb and flow of the tide,
the territorial seas, and all interstate and intrastate waters and their tributaries, including
lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all
impoundments of the foregoing, to the fullest extent that these waters, or activities
affecting these waters, are subject to the legislative power of Congress under the
Constitution.” S. 473, § 4(3). The legislation did not pass, but was re-introduced in the
109th Congress, see Clean Water Authority Restoration Act of 2005, S. 912, 109th Cong.,
1st Sess. (2005); H.R. 1356, 109th Cong., 1st Sess. (2005) and 110th Congress, see Clean
Water Restoration Act of 2007 in the 110th Congress, see H.R. 2421, 110th Cong., 1st
Sess. (2007);http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.2421.IH: S. 1870, 110th Cong.,
1st Sess. (2007). Similar legislation, with a slightly narrower definition of “waters of the
United States” was proposed in the 111th Congress, see Clean Water Restoration Act of
2009 - S. 787, 111th Cong. 1st. Sess. (2009). http://thomas.loc.gov/cgibin/query/z?c111:S.787.RS:Ultimately, however, none of those legislative proposals were
successful.
3.

Judicial Response

While the Executive and Legislative branches considered or debated appropriate
responses to the SWANCC decision, landowners brought many judicial challenges to
federal jurisdiction over non-navigable tributaries and wetlands adjacent to those
tributaries. Most of the courts, including the federal appellate courts, that addressed the
question concluded that the Clean Water Act authorized regulation of those waters. See
Baccarat Fremont v. U.S. Army Corps of Engineers, 425 F.3d 1150 (9th Cir. 2005); United
States v. Rueth Development Co., 335 F.3d 598 (7th Cir. 2003); United States v. Deaton,
332 F.3d 698 (4th Cir. 2003); Community Assn. For Restoration of Environment v. Henry
Bosma Dairy, 305 F.3d 943 (9th Cir. 2002); Headwaters, Inc. v. Talent Irrigation Dist., 243
F.3d 526 (9th Cir. 2001); but see In re Needham, 354 F.3d 340 (5th Cir. 2003). A 2004
Association of Wetlands Managers report noted that 28 of the 31 federal court decisions
interpreting SWANCC at that time had interpreted the Clean Water Act broadly, either by
interpreting “tributary” broadly to include non-navigable tributaries, by adopting a broad
concept of “adjacency” or by adopting a broad concept of the significant nexus. See Jon
Kusler, State Regulation of Wetlands to Fill the Gap 8 (Association of State Wetlands
Managers, Inc. 2004).

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It was not long, however, before the Supreme Court again weighed in on the definition of
“waters of the United States.” Before reading the next case, it might be helpful to look a
little more closely at sections of the Corps and EPA regulations on “waters of the United
States” that have not been described in detail above.
First, in determining jurisdiction over tributaries, the regulations include navigable and
non-navigable tributaries, as long as the tributaries have a perceptible “ordinary high
water mark” See 33 C.F.R. § 328.4(c). An “ordinary high-water mark” is a “line on the
shore established by the fluctuations of water and indicated by physical characteristics
such as clear, natural line impressed on the bank, shelving, changes in the character of
soil, destruction of terrestrial vegetation, the presence of litter and debris, or other
appropriate means that consider the characteristics of the surrounding areas.” 33 C.F.R.
§ 328.3(e). Consequently, the federal regulations assert jurisdiction over a wide variety
of intermittent and ephemeral streams, ditches, and other non-navigable tributaries of
navigable waters.
Second, the regulations define “adjacent” in a manner that is subject to generous
interpretation. Specifically, “adjacent” means “bordering, contiguous, or neighboring”
(emphasis added) and includes wetlands that are “separated from other waters of the
United States by man-made dikes or barriers, natural river berms, beach dunes and the
like.” See 33 C.F.R. § 328.3(c). Prior to the Rapanos case, some of the Corps’ offices
had concluded that wetlands were “adjacent” to other bodies of water if they were
hydrologically connected to the waters “through directional sheet flow during storm
events” or if they were within the 100 year floodplain of the waters. See General
Accounting Office, Corps of Engineers Needs to Evaluate its District Office Practices in
Determining Jurisdiction GAO–04–297, 16-18 (Feb. 2004).
The Supreme Court was faced with challenges to the government’s regulation of nonnavigable tributaries of navigable waters and to regulation of wetlands adjacent to those
tributaries in the following case, Rapanos v. United States. The case was actually the
consolidation of two separate Clean Water Act lawsuits: (1) an enforcement action against
John Rapanos for filling wetlands, to build a shopping center, without a Clean Water Act
permit; and (2) a challenge by Keith and June Carabell to the denial of a Clean Water Act
permit to fill wetlands for a housing development. In both cases, the federal government
asserted jurisdiction over the wetlands at issue not because the wetlands were adjacent
to traditional navigable waters but because they were adjacent to non-navigable
tributaries of navigable waters. In addition, in the Carabell case, the wetlands were
separated from the non-navigable tributaries by a berm. Ultimately, the Supreme Court
split 4-4-1 in deciding the case, so the decision has continued to muddy the waters on the
scope of Clean Water Act jurisdiction over “waters of the United States.”

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Photo 24 By Famartin (Own work)
http://commons.wikimedia.org/wiki/File%3AView_of_an_ephemeral_stream_along_the_Ora
nge_Trail_near_the_Assunpink_Creek_in_the_Van [CC-BY-SA-3.0]

RAPANOS V. UNITED STATES
547 U.S. 715 (2006)
Justice Scalia announced the judgment
of the Court, and delivered an opinion, in
which The Chief Justice, Justice
Thomas, and Justice Alito join.

Resources for the Case
Oral argument audio (from Oyez project)
EPA Administrative Order re: Rapanos property
Carabell permit application and Corps denial
Corps’ EA and Public Interest Review - Carabell
Maps of the properties - Carabell; Rapanos
Unedited opinion
Google Map of all the cases in the coursebook

In April 1989, petitioner John A. Rapanos
backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop.
This parcel included 54 acres of land with sometimes-saturated soil conditions. The
nearest body of navigable water was 11 to 20 miles away. 339 F.3d 447, 449 (CA6 2003)
(Rapanos I). Regulators had informed Mr. Rapanos that his saturated fields were “waters
of the United States,” 33 U.S.C. § 1362(7), that could not be filled without a permit. Twelve
years of criminal and civil litigation ensued.
The burden of federal regulation on those who would deposit fill material in locations
denominated “waters of the United States” is not trivial. In deciding whether to grant or
deny a permit, the U.S. Army Corps of Engineers (Corps) exercises the discretion of an
enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and

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“in general, the needs and welfare of the people,” 33 C.F.R. § 320.4(a) (2004). * * * The
average applicant for an individual permit spends 788 days and $271,596 in completing
the process, and the average applicant for a nationwide permit spends 313 days and
$28,915—not counting costs of mitigation or design changes. * * * “[O]ver $1.7 billion is
spent each year by the private and public sectors obtaining wetlands permits.” Id., at 81.
These costs cannot be avoided, because the Clean Water Act “impose[s] criminal
liability,” as well as steep civil fines, “on a broad range of ordinary industrial and
commercial activities.” Hanousek v. United States, 528 U.S. 1102, 1103 (2000) (Thomas,
J., dissenting from denial of certiorari). In this litigation, for example, for backfilling his own
wet fields, Mr. Rapanos faced 63 months in prison and hundreds of thousands of dollars
in criminal and civil fines. See United States v. Rapanos, 235 F.3d 256, 260 (CA6 2000).
The enforcement proceedings against Mr. Rapanos are a small part of the immense
expansion of federal regulation of land use that has occurred under the Clean Water Act—
without any change in the governing statute—during the past five Presidential
administrations. In the last three decades, the Corps and the Environmental Protection
Agency (EPA) have interpreted their jurisdiction over “the waters of the United States” to
cover 270-to-300 million acres of swampy lands in the United States—including half of
Alaska and an area the size of California in the lower 48 States. And that was just the
beginning. The Corps has also asserted jurisdiction over virtually any parcel of land
containing a channel or conduit—whether man-made or natural, broad or narrow,
permanent or ephemeral—through which rainwater or drainage may occasionally or
intermittently flow. On this view, the federally regulated “waters of the United States”
include storm drains, roadside ditches, ripples of sand in the desert that may contain
water once a year, and lands that are covered by floodwaters once every 100 years.
Because they include the land containing storm sewers and desert washes, the statutory
“waters of the United States” engulf entire cities and immense arid wastelands. In fact,
the entire land area of the United States lies in some drainage basin, and an endless
network of visible channels furrows the entire surface, containing water ephemerally
wherever the rain falls. Any plot of land containing such a channel may potentially be
regulated as a “water of the United States.”
***
II
In these consolidated cases, we consider whether four Michigan wetlands, which lie near
ditches or man-made drains that eventually empty into traditional navigable waters,
constitute “waters of the United States” within the meaning of the Act. Petitioners in No.
04–1034, the Rapanos and their affiliated businesses, deposited fill material without a
permit into wetlands on three sites near Midland, Michigan: the “Salzburg site,” the “Hines
Road site,” and the “Pine River site.” The wetlands at the Salzburg site are connected to

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a man-made drain, which drains into Hoppler Creek, which flows into the Kawkawlin
River, which empties into Saginaw Bay and Lake Huron. * * * The wetlands at the Hines
Road site are connected to something called the “Rose Drain,” which has a surface
connection to the Tittabawassee River. * * * And the wetlands at the Pine River site have
a surface connection to the Pine River, which flows into Lake Huron. * * * It is not clear
whether the connections between these wetlands and the nearby drains and ditches are
continuous or intermittent, or whether the nearby drains and ditches contain continuous
or merely occasional flows of water.
The United States brought civil enforcement proceedings against the Rapanos
petitioners. The District Court found that the three described wetlands were “within federal
jurisdiction” because they were “adjacent to other waters of the United States,” and held
petitioners liable for violations of the CWA at those sites. * * * On appeal, the United
States Court of Appeals for the Sixth Circuit affirmed, holding that there was federal
jurisdiction over the wetlands at all three sites because “there were hydrological
connections between all three sites and corresponding adjacent tributaries of navigable
waters.” * * *
Petitioners in No. 04–1384, the Carabells, were denied a permit to deposit fill material in
a wetland located on a triangular parcel of land about one mile from Lake St. Clair. A
man-made drainage ditch runs along one side of the wetland, separated from it by a 4foot-wide man-made berm. The berm is largely or entirely impermeable to water and
blocks drainage from the wetland, though it may permit occasional overflow to the ditch.
The ditch empties into another ditch or a drain, which connects to Auvase Creek, which
empties into Lake St. Clair. * * *
After exhausting administrative appeals, the Carabell petitioners filed suit in the District
Court, challenging the exercise of federal regulatory jurisdiction over their site. The District
Court ruled that there was federal jurisdiction because the wetland “is adjacent to
neighboring tributaries of navigable waters and has a significant nexus to ‘waters of the
United States.’ ” * * * Again the Sixth Circuit affirmed, holding that the Carabell wetland
was “adjacent” to navigable waters. 391 F.3d 704, 708 (2004) (Carabell).
We granted certiorari and consolidated the cases, * * * to decide whether these wetlands
constitute “waters of the United States” under the Act, and if so, whether the Act is
constitutional.
III
The Rapanos petitioners contend that the terms “navigable waters” and “waters of the
United States” in the Act must be limited to the traditional definition of The Daniel Ball,
which required that the “waters” be navigable in fact, or susceptible of being rendered so.

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See 10 Wall., at 563. But this definition cannot be applied wholesale to the CWA. The Act
uses the phrase “navigable waters” as a defined term, and the definition is simply “the
waters of the United States.” 33 U.S.C. § 1362(7). Moreover, the Act provides, in certain
circumstances, for the substitution of state for federal jurisdiction over “navigable waters
… other than those waters which are presently used, or are susceptible to use in their
natural condition or by reasonable improvement as a means to transport interstate or
foreign commerce … including wetlands adjacent thereto.” § 1344(g)(1) (emphasis
added). This provision shows that the Act’s term “navigable waters” includes something
more than traditional navigable waters. We have twice stated that the meaning of
“navigable waters” in the Act is broader than the traditional understanding of that term,
SWANCC, 531 U.S., at 167; Riverside Bayview, 474 U.S., at 133. * * * We have also
emphasized, however, that the qualifier “navigable” is not devoid of significance,
SWANCC, supra, at 172.
We need not decide the precise extent to which the qualifiers “navigable” and “of the
United States” restrict the coverage of the Act. Whatever the scope of these qualifiers,
the CWA authorizes federal jurisdiction only over “waters.” 33 U.S.C. § 1362(7). The only
natural definition of the term “waters,” our prior and subsequent judicial constructions of
it, clear evidence from other provisions of the statute, and this Court’s canons of
construction all confirm that “the waters of the United States” in § 1362(7) cannot bear
the expansive meaning that the Corps would give it.
The Corps’ expansive approach might be arguable if the CWA defined “navigable waters”
as “water of the United States.” But “the waters of the United States” is something else.
The use of the definite article (“the”) and the plural number (“waters”) show plainly that
§ 1362(7) does not refer to water in general. In this form, “the waters” refers more narrowly
to water “[a]s found in streams and bodies forming geographical features such as oceans,
rivers, [and] lakes,” or “the flowing or moving masses, as of waves or floods, making up
such streams or bodies.” Webster’s New International Dictionary 2882 (2d ed. 1954)
(hereinafter Webster’s Second). * * * On this definition, “the waters of the United States”
include only relatively permanent, standing or flowing bodies of water.5 The definition
5

By describing “waters” as “relatively permanent,” we do not necessarily exclude streams,
rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We
also do not necessarily exclude seasonal rivers, which contain continuous flow during
some months of the year but no flow during dry months—such as the 290-day,
continuously flowing stream postulated by Justice Stevens’ dissent (hereinafter the
dissent), post, at 15. Common sense and common usage distinguish between a wash
and seasonal river.
Though scientifically precise distinctions between “perennial” and “intermittent” flows are
no doubt available, * * * we have no occasion in this litigation to decide exactly when the
drying-up of a stream bed is continuous and frequent enough to disqualify the channel as
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refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water
“forming geographical features.” Ibid. All of these terms connote continuously present,
fixed bodies of water, as opposed to ordinarily dry channels through which water
occasionally or intermittently flows. Even the least substantial of the definition’s terms,
namely “streams,” connotes a continuous flow of water in a permanent channel—
especially when used in company with other terms such as “rivers,” “lakes,” and
“oceans.”6 None of these terms encompasses transitory puddles or ephemeral flows of
water.
The restriction of “the waters of the United States” to exclude channels containing merely
intermittent or ephemeral flow also accords with the commonsense understanding of the
term. In applying the definition to “ephemeral streams,” “wet meadows,” storm sewers
and culverts, “directional sheet flow during storm events,” drain tiles, man-made drainage
ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term
“waters of the United States” beyond parody. The plain language of the statute simply
does not authorize this “Land Is Waters” approach to federal jurisdiction.

a “wate[r] of the United States.” It suffices for present purposes that channels containing
permanent flow are plainly within the definition, and that the dissent’s “intermittent” and
“ephemeral” streams, post, at 16 (opinion of Stevens, J.)—that is, streams whose flow is
“[c]oming and going at intervals … [b]roken, fitful,” Webster’s Second 1296, or “existing
only, or no longer than, a day; diurnal … short-lived,” id., at 857—are not.
6

The principal definition of “stream” likewise includes reference to such permanent,
geographically fixed bodies of water: “[a] current or course of water or other fluid, flowing
on the earth, as a river, brook, etc.” Id., at 2493 (emphasis added). The other definitions
of “stream” repeatedly emphasize the requirement of continuous flow: “[a] steady flow, as
of water, air, gas, or the like”; “[a]nything issuing or moving with continued succession of
parts”; “[a] continued current or course; current; drift.” Ibid. (emphases added). The
definition of the verb form of “stream” contains a similar emphasis on continuity: “[t]o issue
or flow in a stream; to issue freely or move in a continuous flow or course.” Ibid. (emphasis
added). On these definitions, therefore, the Corps’ phrases “intermittent streams,” 33
C.F.R. § 328.3(a)(3) (2004), and “ephemeral streams,” 65 Fed. Reg. 12823 (2000), are—
like Senator Bentsen’s “ ‘ flowing gullies,’ ” post, at 16, n.11 (opinion of Stevens, J.)—
useful oxymora. Properly speaking, such entities constitute extant “streams” only while
they are “continuous[ly] flow[ing]”; and the usually dry channels that contain them are
never “streams.” Justice Kennedy apparently concedes that “an intermittent flow can
constitute a stream” only “while it is flowing,” post, at 13 (emphasis added)—which would
mean that the channel is a “water” covered by the Act only during those times when water
flow actually occurs. But no one contends that federal jurisdiction appears and evaporates
along with the water in such regularly dry channels.
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In addition, the Act’s use of the traditional phrase “navigable waters” (the defined term)
further confirms that it confers jurisdiction only over relatively permanent bodies of water.
The Act adopted that traditional term from its predecessor statutes. See SWANCC, 531
U.S., at 180 (Stevens, J., dissenting). On the traditional understanding, “navigable waters”
included only discrete bodies of water. For example, in The Daniel Ball, we used the terms
“waters” and “rivers” interchangeably. 10 Wall., at 563. And in Appalachian Electric, we
consistently referred to the “navigable waters” as “waterways.” 311 U. S., at 407–409.
Plainly, because such “waters” had to be navigable in fact or susceptible of being
rendered so, the term did not include ephemeral flows. * * *
Moreover, only the foregoing definition of “waters” is consistent with the CWA’s stated
“policy of Congress to recognize, preserve, and protect the primary responsibilities and
rights of the States to prevent, reduce, and eliminate pollution, [and] to plan the
development and use (including restoration, preservation, and enhancement) of land and
water resources … .” § 1251(b). This statement of policy was included in the Act as
enacted in 1972, see 86 Stat. 816, prior to the addition of the optional state administration
program in the 1977 amendments, see 91 Stat. 1601. Thus the policy plainly referred to
something beyond the subsequently added state administration program of 33 U.S.C.
§ 1344(g)–(l). But the expansive theory advanced by the Corps, rather than “preserv[ing]
the primary rights and responsibilities of the States,” would have brought virtually all
“plan[ning of] the development and use . . . of land and water resources” by the States
under federal control. It is therefore an unlikely reading of the phrase “the waters of the
United States.” * * *
Even if the phrase “the waters of the United States” were ambiguous as applied to
intermittent flows, our own canons of construction would establish that the Corps’
interpretation of the statute is impermissible. As we noted in SWANCC, the Government’s
expansive interpretation would “result in a significant impingement of the States’
traditional and primary power over land and water use.” 531 U.S., at 174. Regulation of
land use, as through the issuance of the development permits sought by petitioners in
both of these cases, is a quintessential state and local power. See FERC v. Mississippi,
456 U.S. 742, 768, n.30 (1982); Hess v. Port Authority Trans-Hudson Corporation, 513
U.S. 30, 44 (1994). The extensive federal jurisdiction urged by the Government would
authorize the Corps to function as a de facto regulator of immense stretches of intrastate
land—an authority the agency has shown its willingness to exercise with the scope of
discretion that would befit a local zoning board. See 33 C.F.R. § 320.4(a)(1) (2004). We
ordinarily expect a “clear and manifest” statement from Congress to authorize an
unprecedented intrusion into traditional state authority. See BFP v. Resolution Trust
Corporation, 511 U.S. 531, 544 (1994). The phrase “the waters of the United States”
hardly qualifies.
Likewise, just as we noted in SWANCC, the Corps’ interpretation stretches the outer limits

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of Congress’s commerce power and raises difficult questions about the ultimate scope of
that power. See 531 U.S., at 173. (In developing the current regulations, the Corps
consciously sought to extend its authority to the farthest reaches of the commerce power.
See 42 Fed. Reg. 37127 (1977).) Even if the term “the waters of the United States” were
ambiguous as applied to channels that sometimes host ephemeral flows of water (which
it is not), we would expect a clearer statement from Congress to authorize an agency
theory of jurisdiction that presses the envelope of constitutional validity. See Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S.568,
575 (1988). * * *
In sum, on its only plausible interpretation, the phrase “the waters of the United States”
includes only those relatively permanent, standing or continuously flowing bodies of water
“forming geographic features” that are described in ordinary parlance as “streams[,] …
oceans, rivers, [and] lakes.” See Webster’s Second 2882. The phrase does not include
channels through which water flows intermittently or ephemerally, or channels that
periodically provide drainage for rainfall. The Corps’ expansive interpretation of the “the
waters of the United States” is thus not “based on a permissible construction of the
statute.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
843 (1984).
IV
In Carabell, the Sixth Circuit held that the nearby ditch constituted a “tributary” and thus
a “water of the United States” under 33 C.F.R. § 328.3(a)(5) (2004). See 391 F.3d, at
708–709. Likewise in Rapanos, the Sixth Circuit held that the nearby ditches were
“tributaries” under § 328(a)(5). 376 F.3d, at 643. But Rapanos II also stated that, even if
the ditches were not “waters of the United States,” the wetlands were “adjacent” to remote
traditional navigable waters in virtue of the wetlands’ “hydrological connection” to them.
See id., at 639–640. This statement reflects the practice of the Corps’ district offices,
which may “assert jurisdiction over a wetland without regulating the ditch connecting it to
a water of the United States.” * * * We therefore address in this Part whether a wetland
may be considered “adjacent to” remote “waters of the United States,” because of a mere
hydrologic connection to them.
In Riverside Bayview, we noted the textual difficulty in including “wetlands” as a subset of
“waters”: “On a purely linguistic level, it may appear unreasonable to classify ‘lands,’ wet
or otherwise, as ‘waters.’ ” 474 U.S., at 132. We acknowledged, however, that there was
an inherent ambiguity in drawing the boundaries of any “waters”:
“[T]he Corps must necessarily choose some point at which water ends and land
begins. Our common experience tells us that this is often no easy task: the
transition from water to solid ground is not necessarily or even typically an abrupt
one. Rather, between open waters and dry land may lie shallows, marshes,

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mudflats, swamps, bogs—in short, a huge array of areas that are not wholly
aquatic but nevertheless fall far short of being dry land. Where on this continuum
to find the limit of ‘waters’ is far from obvious.” Ibid.
Because of this inherent ambiguity, we deferred to the agency’s inclusion of wetlands
“actually abut[ting]” traditional navigable waters: “Faced with such a problem of defining
the bounds of its regulatory authority,” we held, the agency could reasonably conclude
that a wetland that “adjoin[ed]” waters of the United States is itself a part of those waters.
Id., at 132, 135, and n.9. The difficulty of delineating the boundary between water and
land was central to our reasoning in the case: “In view of the breadth of federal regulatory
authority contemplated by the Act itself and the inherent difficulties of defining precise
bounds to regulable waters, the Corps’ ecological judgment about the relationship
between waters and their adjacent wetlands provides an adequate basis for a legal
judgment that adjacent wetlands may be defined as waters under the Act.” Id., at 134
(emphasis added).10
When we characterized the holding of Riverside Bayview in SWANCC, we referred to the
close connection between waters and the wetlands that they gradually blend into: “It was
the significant nexus between the wetlands and ‘navigable waters’ that informed our
reading of the CWA in Riverside Bayview Homes.” 531 U.S., at 167 (emphasis added).
In particular, SWANCC rejected the notion that the ecological considerations upon which
the Corps relied in Riverside Bayview—and upon which the dissent repeatedly relies
today, see post, at 10–11, 12, 13–14, 15, 18–19, 21–22, 24–25—provided an
10

Since the wetlands at issue in Riverside Bayview actually abutted waters of the United
States, the case could not possibly have held that merely “neighboring” wetlands came
within the Corps’ jurisdiction. Obiter approval of that proposition might be inferred,
however, from the opinion’s quotation without comment of a statement by the Corps
describing covered “adjacent” wetlands as those “ ‘that form the border of or are in
reasonable proximity to other waters of the United States.’ ” 474 U.S., at 134 (quoting 42
Fed. Reg. 37128 (1977); emphasis added). The opinion immediately reiterated, however,
that adjacent wetlands could be regarded as “the waters of the United States” in view of
“the inherent difficulties of defining precise bounds to regulable waters,” 474 U.S., at
134—a rationale that would have no application to physically separated “neighboring”
wetlands. Given that the wetlands at issue in Riverside Bayview themselves “actually
abut[ted] on a navigable waterway,” id., at 135; given that our opinion recognized that
unconnected wetlands could not naturally be characterized as “ ‘waters’ ” at all, id., at
132; and given the repeated reference to the difficulty of determining where waters end
and wetlands begin; the most natural reading of the opinion is that a wetlands’ mere
“reasonable proximity” to waters of the United States is not enough to confer Corps
jurisdiction. In any event, as discussed in our immediately following text, any possible
ambiguity has been eliminated by SWANCC, 531 U.S. 159 (2001).
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independent basis for including entities like “wetlands” (or “ephemeral streams”) within
the phrase “the waters of the United States.” SWANCC found such ecological
considerations irrelevant to the question whether physically isolated waters come within
the Corps’ jurisdiction. It thus confirmed that Riverside Bayview rested upon the inherent
ambiguity in defining where water ends and abutting (“adjacent”) wetlands begin,
permitting the Corps’ reliance on ecological considerations only to resolve that ambiguity
in favor of treating all abutting wetlands as waters. Isolated ponds were not “waters of the
United States” in their own right, see 531 U.S., at 167, 171, and presented no boundarydrawing problem that would have justified the invocation of ecological factors to treat them
as such.
Therefore, only those wetlands with a continuous surface connection to bodies that are
“waters of the United States” in their own right, so that there is no clear demarcation
between “waters” and wetlands, are “adjacent to” such waters and covered by the Act.
Wetlands with only an intermittent, physically remote hydrologic connection to “waters of
the United States” do not implicate the boundary-drawing problem of Riverside Bayview,
and thus lack the necessary connection to covered waters that we described as a
“significant nexus” in SWANCC. 531 U.S., at 167. Thus, establishing that wetlands such
as those at the Rapanos and Carabell sites are covered by the Act requires two findings:
First, that the adjacent channel contains a “wate[r] of the United States,” (i.e., a relatively
permanent body of water connected to traditional interstate navigable waters); and
second, that the wetland has a continuous surface connection with that water, making it
difficult to determine where the “water” ends and the “wetland” begins.
***
VIII
Because the Sixth Circuit applied the wrong standard to determine if these wetlands are
covered “waters of the United States,” and because of the paucity of the record in both of
these cases, the lower courts should determine, in the first instance, whether the ditches
or drains near each wetland are “waters” in the ordinary sense of containing a relatively
permanent flow; and (if they are) whether the wetlands in question are “adjacent” to these
“waters” in the sense of possessing a continuous surface connection that creates the
boundary-drawing problem we addressed in Riverside Bayview.
We vacate the judgments of the Sixth Circuit in both No. 04–1034 and No. 04–1384, and
remand both cases for further proceedings.
***
Justice Kennedy, concurring in the judgment.

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These consolidated cases require the Court to decide whether the term “navigable
waters” in the Clean Water Act extends to wetlands that do not contain and are not
adjacent to waters that are navigable in fact. In Solid Waste Agency of Northern Cook
Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), the Court held, under
the circumstances presented there, that to constitute “ ‘navigable waters’ ” under the Act,
a water or wetland must possess a “significant nexus” to waters that are or were navigable
in fact or that could reasonably be so made. Id., at 167, 172. In the instant cases neither
the plurality opinion nor the dissent by Justice Stevens chooses to apply this test; and
though the Court of Appeals recognized the test’s applicability, it did not consider all the
factors necessary to determine whether the lands in question had, or did not have, the
requisite nexus. In my view the cases ought to be remanded to the Court of Appeals for
proper consideration of the nexus requirement.
***
Riverside Bayview and SWANCC establish the framework for the inquiry in the cases now
before the Court: Do the Corps’ regulations, as applied to the wetlands in Carabell and
the three wetlands parcels in Rapanos, constitute a reasonable interpretation of
“navigable waters” as in Riverside Bayview or an invalid construction as in SWANCC?
Taken together these cases establish that in some instances, as exemplified by Riverside
Bayview, the connection between a nonnavigable water or wetland and a navigable water
may be so close, or potentially so close, that the Corps may deem the water or wetland
a “navigable water” under the Act. In other instances, as exemplified by SWANCC, there
may be little or no connection. Absent a significant nexus, jurisdiction under the Act is
lacking. Because neither the plurality nor the dissent addresses the nexus requirement,
this separate opinion, in my respectful view, is necessary.
A
The plurality’s opinion begins from a correct premise. As the plurality points out, and as
Riverside Bayview holds, in enacting the Clean Water Act Congress intended to regulate
at least some waters that are not navigable in the traditional sense. Ante, at 12; Riverside
Bayview, 474 U.S., at 133; see also SWANCC, supra, at 167. This conclusion is
supported by “the evident breadth of congressional concern for protection of water quality
and aquatic ecosystems.” Riverside Bayview, supra, at 133; see also Milwaukee v.
Illinois, 451 U.S. 304, 318 (1981) (describing the Act as “an all-encompassing program of
water pollution regulation”). It is further compelled by statutory text, for the text is explicit
in extending the coverage of the Act to some nonnavigable waters.
***

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From this reasonable beginning the plurality proceeds to impose two limitations on the
Act; but these limitations, it is here submitted, are without support in the language and
purposes of the Act or in our cases interpreting it. First, because the dictionary defines
“waters” to mean “water ‘[a]s found in streams and bodies forming geographical features
such as oceans, rivers, [and] lakes,’ or ‘the flowing or moving masses, as of waves or
floods, making up such streams or bodies,” ante, at 13 (quoting Webster’s New
International Dictionary 2882 (2d ed. 1954) (hereinafter Webster’s Second)), the plurality
would conclude that the phrase “navigable waters” permits Corps and EPA jurisdiction
only over “relatively permanent, standing or flowing bodies of water,” ante, at 13–14—a
category that in the plurality’s view includes “seasonal” rivers, that is, rivers that carry
water continuously except during “dry months,” but not intermittent or ephemeral streams,
ante, at 13–15, and n.5. Second, the plurality asserts that wetlands fall within the Act only
if they bear “a continuous surface connection to bodies that are ‘waters of the United
States’ in their own right”—waters, that is, that satisfy the plurality’s requirement of
permanent standing water or continuous flow. Ante, at 23–24.
The plurality’s first requirement—permanent standing water or continuous flow, at least
for a period of “some months,” ante, at 13–14, and n.5—makes little practical sense in a
statute concerned with downstream water quality. The merest trickle, if continuous, would
count as a “water” subject to federal regulation, while torrents thundering at irregular
intervals through otherwise dry channels would not. Though the plurality seems to
presume that such irregular flows are too insignificant to be of concern in a statute focused
on “waters,” that may not always be true. Areas in the western parts of the Nation provide
some examples. The Los Angeles River, for instance, ordinarily carries only a trickle of
water and often looks more like a dry roadway than a river. * * * Yet it periodically releases
water-volumes so powerful and destructive that it has been encased in concrete and steel
over a length of some 50 miles. * * * Though this particular waterway might satisfy the
plurality’s test, it is illustrative of what often-dry watercourses can become when rain
waters flow. * * *
***
It follows that the Corps can reasonably interpret the Act to cover the paths of such
impermanent streams.
***
The plurality’s second limitation—exclusion of wetlands lacking a continuous surface
connection to other jurisdictional waters—is also unpersuasive. To begin with, the plurality
is wrong to suggest that wetlands are “indistinguishable” from waters to which they bear
a surface connection. Ante, at 37. Even if the precise boundary may be imprecise, a bog
or swamp is different from a river. The question is what circumstances permit a bog,

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swamp, or other nonnavigable wetland to constitute a “navigable water” under the Act—
as § 1344(g)(1), if nothing else, indicates is sometimes possible, see supra, at 10–11.
Riverside Bayview addressed that question and its answer is inconsistent with the
plurality’s theory. There, in upholding the Corps’ authority to regulate “wetlands adjacent
to other bodies of water over which the Corps has jurisdiction,” the Court deemed it
irrelevant whether “the moisture creating the wetlands … find[s] its source in the adjacent
bodies of water.” 474 U.S., at 135. The Court further observed that adjacency could serve
as a valid basis for regulation even as to “wetlands that are not significantly intertwined
with the ecosystem of adjacent waterways.” Id., at 135, n.9. “If it is reasonable,” the Court
explained, “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.”
Ibid.
The Court in Riverside Bayview did note, it is true, the difficulty of defining where “water
ends and land begins,” id., at 132, and the Court cited that problem as one reason for
deferring to the Corps’ view that adjacent wetlands could constitute waters. Given,
however, the further recognition in Riverside Bayview that an overinclusive definition is
permissible even when it reaches wetlands holding moisture disconnected from adjacent
water-bodies, id., at 135, and n.9, Riverside Bayview’s observations about the difficulty
of defining the water’s edge cannot be taken to establish that when a clear boundary is
evident, wetlands beyond the boundary fall outside the Corps’ jurisdiction.
***
SWANCC, likewise, does not support the plurality’s surface-connection requirement.
SWANCC’s holding that “nonnavigable, isolated, intrastate waters,” 531 U.S., at 171, are
not “navigable waters” is not an explicit or implicit overruling of Riverside Bayview’s
approval of adjacency as a factor in determining the Corps’ jurisdiction. In rejecting the
Corps’ claimed authority over the isolated ponds in SWANCC, the Court distinguished
adjacent nonnavigable waters such as the wetlands addressed in Riverside Bayview. 531
U.S., at 167, 170–171.
As Riverside Bayview recognizes, the Corps’ adjacency standard is reasonable in some
of its applications. Indeed, the Corps’ view draws support from the structure of the Act,
while the plurality’s surface-water-connection requirement does not.
***
As the Court noted in Riverside Bayview, “the Corps has concluded that wetlands may
serve to filter and purify water draining into adjacent bodies of water, 33 C.F.R.
§ 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and
streams and thus prevent flooding and erosion, see §§ 320.4(b)(2)(iv) and (v).” 474 U.S.,

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at 134. Where wetlands perform these filtering and runoff-control functions, filling them
may increase downstream pollution, much as a discharge of toxic pollutants would. Not
only will dirty water no longer be stored and filtered but also the act of filling and draining
itself may cause the release of nutrients, toxins, and pathogens that were trapped,
neutralized, and perhaps amenable to filtering or detoxification in the wetlands. * * * In
many cases, moreover, filling in wetlands separated from another water by a berm can
mean that flood water, impurities, or runoff that would have been stored or contained in
the wetlands will instead flow out to major waterways. With these concerns in mind, the
Corps’ definition of adjacency is a reasonable one, for it may be the absence of an
interchange of waters prior to the dredge and fill activity that makes protection of the
wetlands critical to the statutory scheme.
***
It bears mention also that the plurality’s overall tone and approach—from the
characterization of acres of wetlands destruction as “backfilling … wet fields,” ante, at 2,
to the rejection of Corps authority over “man-made drainage ditches” and “dry arroyos”
without regard to how much water they periodically carry, ante, at 15, to the suggestion,
seemingly contrary to Congress’ judgment, that discharge of fill material is
inconsequential for adjacent waterways, ante, at 26, and n.11—seems unduly dismissive
of the interests asserted by the United States in these cases. Important public interests
are served by the Clean Water Act in general and by the protection of wetlands in
particular. To give just one example, amici here have noted that nutrient-rich runoff from
the Mississippi River has created a hypoxic, or oxygen-depleted, “dead zone” in the Gulf
of Mexico that at times approaches the size of Massachusetts and New Jersey.
* * * Scientific evidence indicates that wetlands play a critical role in controlling and
filtering runoff. * * * It is true, as the plurality indicates, that environmental concerns
provide no reason to disregard limits in the statutory text, ante, at 27, but in my view the
plurality’s opinion is not a correct reading of the text. The limits the plurality would impose,
moreover, give insufficient deference to Congress’ purposes in enacting the Clean Water
Act and to the authority of the Executive to implement that statutory mandate.
Finally, it should go without saying that because the plurality presents its interpretation of
the Act as the only permissible reading of the plain text, ante, at 20, 23–24, the Corps
would lack discretion, under the plurality’s theory, to adopt contrary regulations. The Chief
Justice suggests that if the Corps and EPA had issued new regulations after SWANCC
they would have “enjoyed plenty of room to operate in developing some notion of an outer
bound to the reach of their authority” and thus could have avoided litigation of the issues
we address today. Ante, at 2. That would not necessarily be true under the opinion The
Chief Justice has joined. New rulemaking could have averted the disagreement here only
if the Corps had anticipated the unprecedented reading of the Act that the plurality
advances.

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B
While the plurality reads nonexistent requirements into the Act, the dissent reads a central
requirement out—namely, the requirement that the word “navigable” in “navigable waters”
be given some importance. Although the Court has held that the statute’s language
invokes Congress’ traditional authority over waters navigable in fact or susceptible of
being made so, SWANCC, 531 U.S., at 172 (citing Appalachian Power, 311 U.S., at 407–
408), the dissent would permit federal regulation whenever wetlands lie alongside a ditch
or drain, however remote and insubstantial, that eventually may flow into traditional
navigable waters. The deference owed to the Corps’ interpretation of the statute does not
extend so far.
Congress’ choice of words creates difficulties, for the Act contemplates regulation of
certain “navigable waters” that are not in fact navigable. Supra, at 10–11. Nevertheless,
the word “navigable” in the Act must be given some effect. See SWANCC, supra, at 172.
Thus, in SWANCC the Court rejected the Corps’ assertion of jurisdiction over isolated
ponds and mudflats bearing no evident connection to navigable-in-fact waters. And in
Riverside Bayview, while the Court indicated that “the term ‘navigable’ as used in the Act
is of limited import,” 474 U.S., at 133, it relied, in upholding jurisdiction, on the Corps’
judgment that “wetlands adjacent to lakes, rivers, streams, and other bodies of water may
function as integral parts of the aquatic environment even when the moisture creating the
wetlands does not find its source in the adjacent bodies of water,” id., at 135. The
implication, of course, was that wetlands’ status as “integral parts of the aquatic
environment”—that is, their significant nexus with navigable waters—was what
established the Corps’ jurisdiction over them as waters of the United States.
Consistent with SWANCC and Riverside Bayview and with the need to give the term
“navigable” some meaning, the Corps’ jurisdiction over wetlands depends upon the
existence of a significant nexus between the wetlands in question and navigable waters
in the traditional sense. The required nexus must be assessed in terms of the statute’s
goals and purposes. Congress enacted the law to “restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), and it
pursued that objective by restricting dumping and filling in “navigable waters,” §§ 1311(a),
1362(12). With respect to wetlands, the rationale for Clean Water Act regulation is, as the
Corps has recognized, that wetlands can perform critical functions related to the integrity
of other waters—functions such as pollutant trapping, flood control, and runoff storage.
33 C.F.R. § 320.4(b)(2). Accordingly, wetlands possess the requisite nexus, and thus
come within the statutory phrase “navigable waters,” if the wetlands, either alone or in
combination with similarly situated lands in the region, significantly affect the chemical,

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physical, and biological integrity of other covered waters more readily understood as
“navigable.” When, in contrast, wetlands’ effects on water quality are speculative or
insubstantial, they fall outside the zone fairly encompassed by the statutory term
“navigable waters.”
Although the dissent acknowledges that wetlands’ ecological functions vis-a-vis other
covered waters are the basis for the Corps’ regulation of them, post, at 10–11, it
concludes that the ambiguity in the phrase “navigable waters” allows the Corps to
construe the statute as reaching all “non-isolated wetlands,” just as it construed the Act
to reach the wetlands adjacent to navigable-in-fact waters in Riverside Bayview, see post,
at 11. This, though, seems incorrect. The Corps’ theory of jurisdiction in these
consolidated cases—adjacency to tributaries, however remote and insubstantial—raises
concerns that go beyond the holding of Riverside Bayview; and so the Corps’ assertion
of jurisdiction cannot rest on that case.
As applied to wetlands adjacent to navigable-in-fact waters, the Corps’ conclusive
standard for jurisdiction rests upon a reasonable inference of ecologic interconnection,
and the assertion of jurisdiction for those wetlands is sustainable under the Act by
showing adjacency alone. That is the holding of Riverside Bayview. Furthermore,
although the Riverside Bayview Court reserved the question of the Corps’ authority over
“wetlands that are not adjacent to bodies of open water,” 474 U.S., at 131–132, n.8, and
in any event addressed no factual situation other than wetlands adjacent to navigable-infact waters, it may well be the case that Riverside Bayview’s reasoning—supporting
jurisdiction without any inquiry beyond adjacency—could apply equally to wetlands
adjacent to certain major tributaries. Through regulations or adjudication, the Corps may
choose to identify categories of tributaries that, due to their volume of flow (either annually
or on average), their proximity to navigable waters, or other relevant considerations, are
significant enough that wetlands adjacent to them are likely, in the majority of cases, to
perform important functions for an aquatic system incorporating navigable waters.
The Corps’ existing standard for tributaries, however, provides no such assurance. As
noted earlier, the Corps deems a water a tributary if it feeds into a traditional navigable
water (or a tributary thereof) and possesses an ordinary high-water mark, defined as a
“line on the shore established by the fluctuations of water and indicated by [certain]
physical characteristics,” § 328.3(e). See supra, at 3. This standard presumably provides
a rough measure of the volume and regularity of flow. Assuming it is subject to reasonably
consistent application, * * * it may well provide a reasonable measure of whether specific
minor tributaries bear a sufficient nexus with other regulated waters to constitute
“navigable waters” under the Act. Yet the breadth of this standard—which seems to leave
wide room for regulation of drains, ditches, and streams remote from any navigable-infact water and carrying only minor water-volumes towards it—precludes its adoption as
the determinative measure of whether adjacent wetlands are likely to play an important

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role in the integrity of an aquatic system comprising navigable waters as traditionally
understood. Indeed, in many cases wetlands adjacent to tributaries covered by this
standard might appear little more related to navigable-in-fact waters than were the
isolated ponds held to fall beyond the Act’s scope in SWANCC. * * *
When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may
rely on adjacency to establish its jurisdiction. Absent more specific regulations, however,
the Corps must establish a significant nexus on a case-by-case basis when it seeks to
regulate wetlands based on adjacency to nonnavigable tributaries. Given the potential
overbreadth of the Corps’ regulations, this showing is necessary to avoid unreasonable
applications of the statute. Where an adequate nexus is established for a particular
wetland, it may be permissible, as a matter of administrative convenience or necessity,
to presume covered status for other comparable wetlands in the region. That issue,
however, is neither raised by these facts nor addressed by any agency regulation that
accommodates the nexus requirement outlined here.
This interpretation of the Act does not raise federalism or Commerce Clause concerns
sufficient to support a presumption against its adoption. To be sure, the significant nexus
requirement may not align perfectly with the traditional extent of federal authority. Yet in
most cases regulation of wetlands that are adjacent to tributaries and possess a
significant nexus with navigable waters will raise no serious constitutional or federalism
difficulty. Cf. Pierce County v. Guillen, 537 U.S. 129, 147 (2003) (upholding federal
legislation “aimed at improving safety in the channels of commerce”); Oklahoma ex rel.
Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 524–525 (1941) (“[J]ust as control over the
non-navigable parts of a river may be essential or desirable in the interests of the
navigable portions, so may the key to flood control on a navigable stream be found in
whole or in part in flood control on its tributaries …. [T]he exercise of the granted power
of Congress to regulate interstate commerce may be aided by appropriate and needful
control of activities and agencies which, though intrastate, affect that commerce”). As
explained earlier, moreover, and as exemplified by SWANCC, the significant-nexus test
itself prevents problematic applications of the statute. See supra, at 19–20; 531 U.S., at
174. The possibility of legitimate Commerce Clause and federalism concerns in some
circumstances does not require the adoption of an interpretation that departs in all cases
from the Act’s text and structure. See Gonzales v. Raich, 545 U.S. 1, __ (2005) (slip op.,
at 14) (“[W]hen a general regulatory statute bears a substantial relation to commerce, the
de minimis character of individual instances arising under that statute is of no
consequence” (internal quotation marks omitted)).
III
In both the consolidated cases before the Court the record contains evidence suggesting
the possible existence of a significant nexus according to the principles outlined above.

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Thus the end result in these cases and many others to be considered by the Corps may
be the same as that suggested by the dissent, namely, that the Corps’ assertion of
jurisdiction is valid. Given, however, that neither the agency nor the reviewing courts
properly considered the issue, a remand is appropriate, in my view, for application of the
controlling legal standard.
***
In these consolidated cases I would vacate the judgments of the Court of Appeals and
remand for consideration whether the specific wetlands at issue possess a significant
nexus with navigable waters.
Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer
join, dissenting.
***
The narrow question presented in No. 04–1034 is whether wetlands adjacent to tributaries
of traditionally navigable waters are “waters of the United States” subject to the jurisdiction
of the Army Corps; the question in No. 04–1384 is whether a manmade berm separating
a wetland from the adjacent tributary makes a difference. The broader question is whether
regulations that have protected the quality of our waters for decades, that were implicitly
approved by Congress, and that have been repeatedly enforced in case after case, must
now be revised in light of the creative criticisms voiced by the plurality and Justice
Kennedy today. Rejecting more than 30 years of practice by the Army Corps, the plurality
disregards the nature of the congressional delegation to the agency and the technical and
complex character of the issues at stake. Justice Kennedy similarly fails to defer
sufficiently to the Corps, though his approach is far more faithful to our precedents and to
principles of statutory interpretation than is the plurality’s.
In my view, the proper analysis is straightforward. The Army Corps has determined that
wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of
our Nation’s waters by, among other things, providing habitat for aquatic animals, keeping
excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream
flooding by absorbing water at times of high flow. The Corps’ resulting decision to treat
these wetlands as encompassed within the term “waters of the United States” is a
quintessential example of the Executive’s reasonable interpretation of a statutory
provision. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842–845 (1984).
Our unanimous decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121
(1985), was faithful to our duty to respect the work product of the Legislative and

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Executive Branches of our Government. Today’s judicial amendment of the Clean Water
Act is not.
***
Unlike SWANCC and like Riverside Bayview, the cases before us today concern wetlands
that are adjacent to “navigable bodies of water [or] their tributaries,” 474 U.S., at 123.
Specifically, these wetlands abut tributaries of traditionally navigable waters. As we
recognized in Riverside Bayview, the Corps has concluded that such wetlands play
important roles in maintaining the quality of their adjacent waters, see id., at 134–135,
and consequently in the waters downstream. Among other things, wetlands can offer
“nesting, spawning, rearing and resting sites for aquatic or land species”; “serve as
valuable storage areas for storm and flood waters”; and provide “significant water
purification functions.” 33 C.F.R. § 320.4(b)(2) (2005); 474 U.S., at 134–135. These
values are hardly “independent” ecological considerations as the plurality would have it,
ante, at 23—instead, they are integral to the “chemical, physical, and biological integrity
of the Nation’s waters,” 33 U.S.C. § 1251(a). Given that wetlands serve these important
water quality roles and given the ambiguity inherent in the phrase “waters of the United
States,” the Corps has reasonably interpreted its jurisdiction to cover non-isolated
wetlands. See 474 U.S., at 131–135.
This conclusion is further confirmed by Congress’ deliberate acquiescence in the Corps’
regulations in 1977. Id., at 136. Both Chambers conducted extensive debates about the
Corps’ regulatory jurisdiction over wetlands, rejected efforts to limit this jurisdiction, and
appropriated funds for a “ ‘National Wetlands Inventory’ ” to help the States “ ‘in the
development and operation of programs under this Act.’ ” Id., at 135–139 (quoting 33
U.S.C. § 1288(i)(2)). We found these facts significant in Riverside Bayview, see 474 U.S.,
at 135–139, as we acknowledged in SWANCC. See 531 U.S., at 170–171 (noting that
“[b]eyond Congress’ desire to regulate wetlands adjacent to ‘navigable waters,’
respondents point us to no persuasive evidence” of congressional acquiescence
(emphasis added)).
The Corps’ exercise of jurisdiction is reasonable even though not every wetland adjacent
to a traditionally navigable water or its tributary will perform all (or perhaps any) of the
water quality functions generally associated with wetlands. Riverside Bayview made clear
that jurisdiction does not depend on a wetland-by-wetland inquiry. 474 U.S., at 135, n.9.
Instead, it is enough that wetlands adjacent to tributaries generally have a significant
nexus to the watershed’s water quality. If a particular wetland is “not significantly
intertwined with the ecosystem of adjacent waterways,” then the Corps may allow its
development “simply by issuing a permit.” Ibid.6 Accordingly, for purposes of the Corps’
6

Indeed, “[t]he Corps approves virtually all section 404 permit[s],” though often requiring
applicants to avoid or mitigate impacts to wetlands and other waters. GAO Report 8.
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jurisdiction it is of no significance that the wetlands in No. 04–1034 serve flood control
and sediment sink functions, but may not do much to trap other pollutants, supra, at 4–5,
and n.2, or that the wetland in No. 04–1328 keeps excess water from Lake St. Clair but
may not trap sediment, see supra, at 5–6.
***
In final analysis, however, concerns about the appropriateness of the Corps’ 30-year
implementation of the Clean Water Act should be addressed to Congress or the Corps
rather than to the Judiciary. Whether the benefits of particular conservation measures
outweigh their costs is a classic question of public policy that should not be answered by
appointed judges. The fact that large investments are required to finance large
developments merely means that those who are most adversely affected by the Corps’
permitting decisions are persons who have the ability to communicate effectively with
their representatives. Unless and until they succeed in convincing Congress (or the
Corps) that clean water is less important today than it was in the 1970’s, we continue to
owe deference to regulations satisfying the “evident breadth of congressional concern for
protection of water quality and aquatic ecosystems” that all of the Justices on the Court
in 1985 recognized in Riverside Bayview, 474 U.S., at 133.
***
Justice Kennedy’s “significant nexus” test will probably not do much to diminish the
number of wetlands covered by the Act in the long run. Justice Kennedy himself
recognizes that the records in both cases contain evidence that “should permit the
establishment of a significant nexus,” ante, at 27, see also ante, at 26, and it seems likely
that evidence would support similar findings as to most (if not all) wetlands adjacent to
tributaries of navigable waters. But Justice Kennedy’s approach will have the effect of
creating additional work for all concerned parties. Developers wishing to fill wetlands
adjacent to ephemeral or intermittent tributaries of traditionally navigable waters will have
no certain way of knowing whether they need to get § 404 permits or not. And the Corps
will have to make case-by-case (or category-by-category) jurisdictional determinations,
which will inevitably increase the time and resources spent processing permit
applications. These problems are precisely the ones that Riverside Bayview’s deferential
approach avoided. See 474 U.S., at 135, n.9 (noting that it “is of little moment” if the
Corps’ jurisdiction encompasses some wetlands “not significantly intertwined” with other
waters of the United States). Unlike Justice Kennedy, I see no reason to change Riverside
Bayview’s approach—and every reason to continue to defer to the Executive’s sensible,
bright-line rule.
***

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I would affirm the judgments in both cases, and respectfully dissent from the decision of
five Members of this Court to vacate and remand. * * * In these cases, * * * while both
the plurality and Justice Kennedy agree that there must be a remand for further
proceedings, their respective opinions define different tests to be applied on remand.
Given that all four Justices who have joined this opinion would uphold the Corps’
jurisdiction in both of these cases—and in all other cases in which either the plurality’s or
Justice Kennedy’s test is satisfied—on remand each of the judgments should be
reinstated if either of those tests is met.14
***
Questions and Comments
1.

In light of the fact that there was no majority opinion in the Rapanos case, it is a
little difficult to determine precisely what further limits the Court placed on Clean
Water Act jurisdiction. Parsing the opinions closely may help clarify what the Court
did and did not hold. For instance, after SWANCC, some commentators believed
that Clean Water Act jurisdiction might be limited to traditional navigable waters
and adjacent wetlands. Did the plurality or any of the Justices adopt that narrow
reading of the statute? Is the SWANCC focus on limiting jurisdiction to Congress’
commerce power over navigation retained by a majority of the Justices? Is Justice
Breyer a voice crying out in the wilderness?

2.

As noted above, the Rapanos Court focused on whether non-navigable tributaries
of traditional navigable waters were “waters of the United States” and on whether
wetlands adjacent to non-navigable tributaries were “waters of the United States.”
What test does the plurality adopt to answer those two questions? Note the
plurality’s distinction between ephemeral or intermittent streams, on the one hand,
and seasonal rivers or waters that dry up in extraordinary circumstances. Is the
plurality sliding down a slippery slope?

3.

Prior to Rapanos, the lower federal courts routinely deferred to the government’s
determinations that non-navigable tributaries of traditional navigable waters were
“waters of the United States.” Does the plurality ignore the Chevron analysis? In
construing the statute, does the plurality focus on the water quality purposes of the

14

I assume that Justice Kennedy’s approach will be controlling in most cases because it
treats more of the Nation’s waters as within the Corps’ jurisdiction, but in the unlikely
event that the plurality’s test is met but Justice Kennedy’s is not, courts should also uphold
the Corps’ jurisdiction. In sum, in these and future cases the United States may elect to
prove jurisdiction under either test.
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statute or legislative history, as the Riverside Bayview Court had done? Why not?
On what purposes of the statute does the plurality focus? Which statutory
construction canons?
4.

What do you think of Justice Scalia’s tone in the plurality opinion? What did Justice
Kennedy think about it? It is interesting to compare the plurality’s factual
description of the plight of John Rapanos, who “faced 63 months in prison and
hundreds of thousands of dollars in criminal and civil fines” for “backfilling his own
wet fields” with the factual descriptions provided by Justice Kennedy and the
dissenting Justices, who point out that Rapanos threatened to “destroy” the
consultant he hired to delineate his property unless the consultant destroyed the
report that identified the wetlands on the property, and that Rapanos ignored
numerous cease and desist orders from the State and EPA when he filled the
wetlands.

5.

Justice Kennedy wrote a separate opinion, concurring in the Court’s judgment.
Does Kennedy apply the Chevron analysis when determining whether the
government can regulate “ephemeral” or “intermittent” streams? Why does Justice
Kennedy feel such regulation is appropriate? Does he focus on the “significant
nexus” in his analysis of the non-navigable waters?

6.

What test does Justice Kennedy suggest should apply to determine whether
wetlands can be regulated? Does he adopt a different test depending on whether
the wetlands are adjacent to traditional navigable waters or whether they are
adjacent to non-navigable tributaries? Is his interpretation of the statute based on
the plain meaning of the text, the purposes of the statute, the legislative history, or
some combination of all three? Does Kennedy apply the Chevron analysis? How
does he respond to the plurality’s federalism and constitutional concerns?

7.

Applying the “Significant Nexus” Test: Does Kennedy believe that there must
be a hydrological connection between the wetlands and a traditional navigable in
fact water? Is a hydrological connection sufficient for Justice Kennedy? What types
of connections between wetlands and a traditional navigable water might constitute
a “significant nexus”? Would Kennedy focus only on the specific wetlands that the
government seeks to regulate in determining whether the wetlands have a
“significant nexus” to other waters? Do the plurality or dissenting Justices believe
that such ecological connections are sufficient to establish jurisdiction?

8.

Justice Stevens, in his dissenting opinion, argues for a straightforward application
of the Chevron analysis. Steven’s focus on the water quality protection purposes
of the Clean Water Act, Congressional acquiescence, and deference to agency
expertise echo the approach taken in the Court’s unanimous Riverside Bayview

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Homes decision. Note how the dissenting Justices and Justice Kennedy, in his
concurrence, rely heavily on science and the scientific expertise of agencies in
crafting their opinions.
9.

A Missed Opportunity?: Justice Breyer, in a separate dissent, and Justice
Roberts, in a separate concurring opinion, both lament the government’s failure to
adopt regulations to clarify the meaning of “waters of the United States” after
SWANCC and both note that the government’s regulations would have been
accorded deference under Chevron if they had pursued that route. However,
Justice Kennedy suggests, in his concurrence, that if the plurality’s reasoning had
been adopted by a majority of the Court, the Corps and EPA would not be accorded
Chevron deference if, after the Rapanos decision, they adopted rules to clarify that
ephemeral and intermittent streams were “waters of the United States” and to
adopt a definition of “adjacent” similar to the approach that they were applying in
practice before the decision. Why would those rules not be accorded Chevron
deference? See National Cable & Telecommunications Association v. Brand X
Internet Services, 545 U.S. 967 (2005).

10.

Rapanos Post-script: The United States finally settled the civil lawsuit against
Rapanos in December 2008, and the defendants agreed to pay $150,000 in civil
penalties, create 100 acres of wetlands, and preserve 134 acres of wetlands. The
consent decree is available at:
http://www2.epa.gov/sites/production/files/documents/rapanos-cd.pdf

11.

Marks or Counting Noses?: The Justices divided 4-4-1 in Rapanos. Justice
Roberts, in a concurring opinion, suggests that lower courts and regulated parties
“will now have to feel their way on a case-by-case basis”. 547 U.S. at 758 (Roberts,
concurring). He provides some guidance on how the decision might be read by
citing Grutter v. Bollinger, 539 U.S. 306 (2003) (discussing Marks v. United States,
430 U.S. 188 (1977)).http://supreme.justia.com/cases/federal/us/430/188/ The
dissenting Justices suggest an alternative approach for reconciling the various
opinions and developing a test for determining when it is appropriate to regulate
“non-navigable tributaries” and wetlands adjacent to non-navigable tributaries?
Compare the two approaches.

12.

For various views on the impact of the Rapanos decision shortly after the Court
issued the decision, see Robin Kundis Craig, Justice Kennedy and Ecosystem
Services: A Functional Approach to Clean Water Act Jurisdiction After Rapanos,
38 Envtl. L. 635 (2008); Jamison E. Colburn, Waters of the United States: Theory,
Practice and Integrity at the Supreme Court, 34 Fla. St. U. L. Rev. 183 (2007);
Bradford C. Mank, Implementing Rapanos - will Justice Kennedy’s Significant
Nexus Test Provide a Workable Standard for Lower Courts, Regulators and

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Developers?, 40 Indiana L. Rev. 291 (2007); Mark Squillace, From ‘Navigable
Waters’ to ‘Constitutional Waters’, 40 U. Mich. J.L. Reform 799 (2007); James
Murphy, Muddying the Waters of the Clean Water Act: Rapanos v. United States
and the Future of America’s Wetlands, 31 Vt. L. Rev. 356 (2006).
E.

Post-Rapanos Developments

After the Rapanos decision, there was confusion regarding whether jurisdictional
determinations regarding non-navigable tributaries and wetlands adjacent to nonnavigable tributaries should be made based on the plurality’s test, Justice Kennedy’s test,
or both. To recap, the following chart highlights the differences between the plurality’s
opinion and Justice Kennedy’s opinion.
Non-Navigable Tributaries

Wetlands Adjacent to NonNavigable Tributaries

Plurality

Jurisdiction exists if the water is
a “relatively permanent,
continuously flowing” body of
water that flows into a traditional
navigable water.

Jurisdiction exists if the wetlands
have a “continuous surface
connection” with a relatively
permanent, continuously flowing
body of water that flows into a
traditional navigable water.

Kennedy

Jurisdiction exists if the water
has a significant nexus to a
traditional navigable water.

Jurisdiction exists if the wetlands
have a significant nexus to a
traditional navigable water.

A “significant nexus” exists
where the water “either alone or
in combination with similarly
situated lands in the region,
significantly affects the
chemical, physical, and
biological integrity” of a
traditional navigable water.

A “significant nexus” exists where a
wetland “either alone or in
combination with similarly situated
lands in the region, significantly
affects the chemical, physical, and
biological integrity” of a traditional
navigable water.

Justice Stevens, for the dissenting Justices, wrote that Justice Kennedy’s “significant
nexus” test would “probably not do much to diminish the number of wetlands covered by
the Act in the long run.” 547 U.S. at 808 (Stevens, dissenting) However, just as elimination
of the “migratory bird” test made it more time-consuming to document and support
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jurisdictional determinations over “isolated waters,” the requirement that the Corps and
EPA demonstrate a “significant nexus” between wetlands or non-navigable tributaries and
traditional navigable waters would increase the time and resources necessary to
document and support jurisdictional determinations over those waters.
Justice Kennedy’s test would allow the Corps and EPA to regulate a much broader
universe of “waters” than the plurality’s test, but there are some “waters” that could be
regulated under the plurality’s test that would not be regulated under Kennedy’s test
(waters that have continuous surface connections to traditional navigable waters, but for
which the government cannot demonstrate a “significant nexus” to the traditional
navigable water).
Just as the SWANCC decision raised concerns that many isolated waters would be
excluded from federal regulation, the Rapanos decision raised concerns that many nonnavigable tributaries, including intermittent and ephemeral streams, and wetlands
adjacent to those non-navigable tributaries, would be excluded from federal regulation.
The Environmental Law Institute released a report that outlined, in great detail, the various
types of waters that would be unprotected at the State level if not protected at the federal
level. See Environmental Law Institute, America’s Vulnerable Waters: Assessing the
Nation’s Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States, (Aug.
2011). In a follow-up report, the Institute warned that 36 states have laws that could
restrict the authority of state or local agencies to regulate, under their laws, waters that
are excluded from federal regulation. See Environmental Law Institute, State Constraints:
State Imposed Limitations on the Authority of Agencies to Regulate waters Beyond the
scope of the Federal Clean Water Act 1 (May 2013). The restrictions include “absolute or
qualified prohibitions that require state law to be ‘no more stringent than’ federal law;
property rights limitations; or a combination of the two.” Id. Once again, therefore, State
environmental regulators were concerned that the Supreme Court’s interpretation of the
Clean Water Act could significantly harm their ability to protect waters and wetlands in
their states.
1.

2008 Guidance

About a year after the Court’s ruling in Rapanos, the Corps and EPA issued guidance to
the Corps’ district offices and EPA regional offices regarding the implications of the ruling
for regulating “waters of the United States.” The agencies took public comment on the
guidance for seven and a half months and replaced the 2007 joint guidance document
with a revised guidance document in December 2008. In essence, the guidance asserted
jurisdiction over waters that would meet either the Kennedy or plurality tests. This is the
approach that was suggested by the dissenting Justices in Rapanos, as Justice Stevens
wrote, “Given that all four Justices who have joined this opinion would uphold the Corps’
jurisdiction in both of these cases—and in all other cases in which either the plurality’s or

145

Justice Kennedy’s test is satisfied—on remand each of the judgments should be
reinstated if either of those tests is met.” 547 U.S. at 810 (Stevens, dissenting). More
specifically, the guidance provided that the agencies would assert jurisdiction over:
•
•

Traditional navigable waters and wetlands adjacent to traditional navigable waters
Non-navigable tributaries of traditional navigable waters that are relatively
permanent where the tributaries typically flow year round or have continuous flow
at least seasonally (e.g. typically three months), and wetlands that direct abut such
tributaries

Those are the waters that would be regulated under Riverside-Bayview Homes or the
Rapanos plurality’s opinion.
In addition, the guidance provided that the agencies would decide jurisdiction over the
following waters based on a fact-specific analysis to determine whether they have a
significant nexus with a traditional navigable water:
•
•
•

Non-navigable tributaries that are not relatively permanent
Wetlands adjacent to non-navigable tributaries that are not relatively permanent
Wetlands adjacent to but that do not directly abut a relatively permanent nonnavigable tributary

Those are the waters that would be regulated under Justice Kennedy’s “significant nexus”
test from Rapanos.
The guidance also provided that the agencies would not exert jurisdiction over swales or
gullies with low volume or short or infrequent flows or ditches that are excavated wholly
in uplands and drain only in uplands. Many of the determinations that the agencies have
made using the guidance have been upheld in court, as the following section describes
in more detail. However, in January, 2018, the Justice Department issued a memorandum
indicating that it will not bring enforcement actions in cases where guidance documents
are used as the basis for proving violations of law, so the Department will likely be bringing
fewer enforcement actions in cases where jurisdiction is not clear based on the language
of the WOTUS regulations. See Amena H. Saiyid, Justice Department Memo Muddies
Enforcement of Water Permits, 49 Env. Rep. 250 (Feb. 16. 2018).
2.

Judicial Interpretation of Rapanos

As Justice Roberts surmised, courts have been feeling their way on a case-by-case basis
to determine the reach of Rapanos. There has been a significant amount of litigation in
the federal courts focusing on the meaning of “waters of the United States” after Rapanos.
According to an Environmental Law Institute study, by May 2013, federal cases had been

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brought in two thirds of all of the states in the United States after Rapanos and every
federal circuit court, other than the Second Circuit and Tenth Circuit, had issued an
opinion in a case involving Clean Water Act jurisdictional issues similar to those in
Rapanos. See Environmental Law Institute, State Constraints: State Imposed Limitations
on the Authority of Agencies to Regulate Waters Beyond the scope of the Federal Clean
Water Act 4 (May 2013).
Three circuits have held that waters can be regulated if they meet either the “significant
nexus” test or the plurality test. Three circuits have upheld the “significant nexus” test
without ruling on whether the plurality test could be utilized in other cases. Two circuits
have held that the “significant nexus” test is appropriate and the plurality test is not, and
two circuits have resolved their cases without deciding which test should be used to
determine jurisdiction.
The following chart outlines the split in jurisdictions:
Test
Kennedy or Plurality

Circuits
•
•
•

Kennedy / Silent on Plurality

•
•
•

Kennedy Only

•
•

Resolved Without Choosing

•

1st Circuit: United States v. Johnson, 467
F.3d 56 (1st Cir. 2006)
3rd Circuit: United States v. Donovan, 661
F.3d 174 (3d Cir. 2011)
8th Circuit: United States v. Bailey, 571 F.3d
791 (8th Cir. 2009)
4th Circuit: Precon Development Corp. v.
Corps, 633 F.3d 278 (4th Cir. 2011)
7th Circuit: United States v. Gerke
Excavating, Inc., 464 F.3d 723 (7th Cir.
2006)
9th Circuit: Northern California River Watch
v. City of Healdsburg, 496 F.3d 993 (9th Cir.
2007)
11th Circuit: United States v. Robison, 505
F.3d 1208 (11th Cir. 2007)
2nd Circuit: Cordiano v. Metacon Gun Club ,
Inc. 575 F.3d 199 (2d Cir. 2009)
5th Circuit: United States v. Lucas, 516 F.3d
316 (5th Cir. 2008)

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•

6th Circuit: United States v. Cundiff, 555 F.3d
200 (6th Cir. 2009)

Two trends are clear from those decisions. First, the appellate courts generally agree that
if a water satisfies Justice Kennedy’s “significant nexus” test, it can be regulated as a
“water of the United States.” Second, none of the appellate courts have found that the
Rapanos plurality test is a sufficient test, in and of itself, to determine jurisdiction.
3.

2011 Guidance and 2015 Rulemaking

While Courts have generally upheld the government’s exercise of jurisdiction under
Justice Kennedy’s “significant nexus” test, the test is time consuming and resource
intensive, and implementation of the test on a case-by-case basis led to reductions in the
scope of waters covered under the Clean Water Act. After the Rapanos decision, the
Corps and EPA still preferred to assert jurisdiction broadly over categories of waters
rather than making the jurisdictional determination on a case by case basis. Accordingly,
the agencies continued to explore amending their “waters of the United States” guidance
or adopting regulations to define the term more categorically.
In May 2011, the Corps and EPA prepared draft guidance to replace the 2008 guidance
and published the draft guidance in the Federal Register for public comment. See 76 Fed.
Reg. 24479 (May 2, 2011). The agencies received approximately 230,000 comments on
the guidance, but did not take further steps to finalize the guidance. See Environmental
Law Institute, The Clean Water Act Jurisdictional Handbook, 2d ed. 36 (May 2012).
Just as legislators proposed bills to respond to the Supreme Court’s SWANCC decision,
legislators introduced legislation to amend the Clean Water Act after the Rapanos
decision. In April 2010, Representative Oberstar introduced the America’s Commitment
to the Clean Water Act, which was similar to the previous Clean Water Restoration Acts,
and would establish broad jurisdiction over streams and wetlands. See H.R. 5088, 111th
Cong. 2d Sess. (2010). Other legislators introduced bills to restrict Clean Water Act
jurisdiction or to limit the Corps and EPA from finalizing the 2011 guidance or using it as
the basis for a rulemaking. See Defense of Environment and Property Act of 2012,
S. 2122, 112th Cong., 2d Sess. (2012), and Preserve the Waters of the United States Act,
S. 2245, 112th Cong., 2d Sess. (2012).http://thomas.loc.gov/cgi-bin/query/z?c112:S.2245.IS:
Like the post-SWANCC legislation, though, none of the post-Rapanos bills were enacted.
In September 2013, EPA released a draft study, Connectivity of Streams and Wetlands
to Downstream Waters, that concluded that all tributaries, including intermittent and
ephemeral streams, of downstream rivers are physically, chemically, and biologically
connected to the downstream rivers. Id. at 1-3. It also found that wetlands and open

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waters in the flood plains of rivers and riparian areas are connected in the same way to
downstream rivers as the tributaries are connected to those rivers. Id. at 1-3. Although
the report did not find that isolated waters and wetlands that are outside of the floodplains
of rivers have a similar connection to downstream rivers, it did suggest that a case-bycase analysis of such wetlands and waters could determine that they have an aggregate
impact on downstream rivers. Id. at 1-4. EPA’s Science Advisory Board then solicited
public comment on the proposal, and the agency indicated that the study would be the
basis for a proposed rulemaking to clarify the meaning of “waters of the United States.”
See United States Environmental Protection Agency, Clean Water Act Definition of
“Waters of the United States”, available at:
http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm
Based on that study, which was ultimately finalized in January 2015, the Corps and EPA
issued a notice of proposed rulemaking to re-define “waters of the United States.” See 79
Fed. Reg. 22188 (Apr. 21, 2014) (the “WOTUS” rule). In the proposed rule, the agencies
defined “waters of the United States” to include traditional navigable waters, interstate
waters, the territorial seas, all impoundments of those three categories of waters, all
tributaries of those three categories of waters and all waters, including wetlands, adjacent
to those three categories of waters. Id. at 22262-22263. While the agencies were
developing the rule, legislators introduced bills to prevent the agencies from finalizing the
rule. See Protecting Water and Property Rights Act of 2014, S. 2496, 113th Cong., 2d
Sess. (2014); Waters of the United States Regulatory Overreach Protection Act, H.R.
594, 114th Cong., 2d Sess. (2014).
On June 29, 2015, EPA and the Corps issued a final rule after providing a 200 day
comment period and receiving more than 1 million comments on the proposal.” See 80
Fed. Reg. 37054, 37057 (June 29, 2015). According to the agencies, the rule “makes the
process of identifying waters protected under the [Clean Water Act] easier to understand,
more predictable, and consistent with the law and peer-reviewed science.” Id. at 37055.
The Connectivity Study ”provided much of the technical basis” for the rule. Id. at 37057.
Although the rule reduced the circumstances in which agencies must determine, on a
case-by-case basis, that waters have a “significant nexus” to traditional navigable waters,
interstate waters or the territorial seas, the “significant nexus” standard remained an
important element of the agencies’ interpretation of the Clean Water Act. Id. at 37056.
The agencies identified several categories of waters as “waters of the United States” in
the final rule because the agencies concluded that the waters, as a class, had a
“significant nexus” to traditional navigable waters, interstate waters or the territorial seas.
By reducing the situations in which the Corps and EPA must conduct case-by-case
analyses, the new rule was designed to make it easier for the agencies to determine that
waters like those at issue in Rapanos were protected by the Clean Water Act. For an
overview of the 2015 rule, see Environmental Law Institute, EPA’s “Waters of the United
States” Rule: Substance and Significance, 45 Envtl. L. Rep. 10995 (Nov. 2015).

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The final rule identified eight categories of waters as “waters of the United States.” See
33 C.F.R. § 328.3(a). The first three categories of waters have long been regulated as
“waters of the United States,” and include traditional navigable waters, id. § 328.3(a)(1),
interstate waters (including interstate wetlands), id. § 328.3(a)(2), and the territorial seas.
Id. § 328.3(a)(3). Any impoundments of those waters, id. § 328.3(a)(4), or tributaries of
those waters, id. § 328.3(a)(5) are also “waters of the United States.” The rule did not
require the Corps or EPA to make a case-by-case determination that an impoundment or
tributary of those waters is a “water of the United States.” It includes all such
impoundments or tributaries. The rule defined a tributary as “a water that contributes flow,
either directly or through another water ... to [a traditional navigable water, interstate water
or the territorial seas] that is characterized by the presence of the physical indicators of a
bed and banks and an ordinary high water mark.” Id. § 328.3(c)(3). Thus, the term was
broad enough to include ephemeral and intermittent streams. For a useful overview of the
importance of regulating small streams, see Dave Owens, Little Streams and Legal
Transformations, 2017 Utah L. Rev. 1.
In addition to those five categories of “waters,” the rule included, as “waters of the United
States”, waters that are adjacent to waters within any of those five categories of waters.
Id. § 328.3(a)(6). While the prior regulation defined “waters of the United States” to include
wetlands that were “adjacent” to other “waters of the United States,” and defined
“adjacent” to include “bordering, contiguous or neighboring,” the new rule included
“adjacent” waters, as opposed simply to “adjacent” wetlands, and defined waters as
“neighboring” based on the distances between those waters and specific features of other
waters (i.e. ordinary high water mark, 100 year floodplain, high tide line). Id. § 328.3(c)(2).
While the prior regulation defined “waters of the United States” to include intrastate waters
the use, degradation or destruction of which could affect interstate or foreign commerce,
the new rule eliminates that category of “waters.” However, some waters that may have
been regulated under that “interstate commerce” category might still have been regulated
under the new rule as the Corps and EPA include, in the “waters of the United States”
definition, a new category that includes prairie potholes, Carolina bays and Delmarva
bays, pocosins, Western vernal pools, and Texas coastal prairie wetlands, if those
wetlands were determined, on a case-by-case basis, to have a significant nexus to a
traditional navigable water, interstate water, or the territorial seas. Id. § 328.3(a)(7). While
that decision must be made on a case-by-case basis, the rule clarified that the wetland
types identified in the category (prairie potholes, bays, pocosins, vernal pools, and coastal
prairie wetlands) “are similarly situated and shall be combined, for purposes of a
significant nexus analysis, in the watershed that drains to the nearest water...” Id.
Finally, the new rule included, in the definition of “waters of the United States,” all waters
located within the 100 year floodplain of a traditional navigable water, interstate water, or

150

the territorial seas and all waters located within 4,000 feet of the high tide line or ordinary
high water mark of any of the first five categories of waters of the United States if the
waters are determined, on a case-by-case basis, to have a significant nexus to a
traditional navigable water, interstate water or the territorial seas. Id. § 328.3(a)(8).
For purposes of making the case-by-case determination required for the final two
categories of “waters of the United States,” the rule defined “significant nexus” to mean
that “a water, including wetlands, either alone or in combination with other similarly
situated waters in the region, significantly affects the chemical, physical or biological
integrity” of the other water. Id. § 328.3(c)(5). The rule also identified aquatic functions
that are relevant to determine whether a water has a “significant nexus” to another water,
including sediment trapping; nutrient recycling; pollutant trapping, transformation, filtering
and transport; retention and attenuation of flood waters; runoff storage; contribution of
flow; export of organic matter; export of food resource; and provision of life cycle
dependant aquatic habitat. Id.
While the rule outlined eight categories of waters that are “waters of the United States,”
it also identified several categories of waters that are not “waters of the United States,”
including waste treatment systems, prior converted cropland, artificially irrigated areas
that would revert to dry land, other artificial and constructed waters and ornamental pools,
as well as depressions, various erosional features, puddles, groundwater, constructed
stormwater control features, waste water recycling structures, and many types of ditches.
Id. § 328.3(b). Most of those features were never regulated in the past, but the new rule
was the first rule to explicitly codify the exemptions.
The agencies predicted that the new rule would reduce the scope of jurisdiction when
compared to jurisdiction prior to the SWANCC decision, but could increase jurisdiction by
2.84 - 4.65% when compared to jurisdiction after the Rapanos decision. See U.S. EPA &
U.S. Army Corps of Engineers, Economic Analysis of the EPA-Army Clean Water Rule
vii (May 2015). They estimated that the annual costs for the regulation would range from
$158.6 million to $306.6 million, while the annual benefits would range from $338.9 million
to $349.5 million. Id. at x.
4.

Aftermath of 2015 Rulemaking

a. Legal Challenges
Within the first two days after the agencies published the final rule, 27 states filed lawsuits
challenging the rule. See Chris Marr, More Than Half States Sue EPA to Block Rule on
Water Jurisdiction, 46 Env. Reporter 2012 (July 3, 22015). Within another two weeks, 14
agriculture and industry groups filed lawsuits, see Amena H. Saiyid and Anthony Adragna,

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Chamber of Commerce Joins in Water Rule Lawsuit, 46 Env. Reporter 2143 (July 17,
2015). Environmental groups, on the other hand, argued that the agencies did not go far
enough in asserting jurisdiction over waters. Some of their criticisms are outlined in
Patrick Parenteau, A Bright Line Mistake: How EPA Bungled the Clean Water Rule, 46
Envtl. L. 379 (2016) ,Craig N. Johnston & Gerald Torres, Normal Farming and Adjacency:
A Last Minute Gift for the Farm Bureau, 46 Envtl. L. 395 (2016) and Amena H. Saiyid,
Endangered Species at Risk from Water Rule, Advocates Say, 47 Env. Reporter 4027
(Nov. 4, 2016). Ultimately, approximately 100 parties filed 23 petitions for review of the
rule in the federal appellate courts and 17 complaints challenging the rule in federal district
courts. See Suzanne Murray, Mary Mendoza, and Lissette Villarruel, States Challenge
Clean Water Rule in Federal Courts, American Bar Association Section of Environment,
Energy and Resources, Water Quality and Wetlands Committee Newsletter, Vol. 14, No.
2, at 11, 12 (Aug. 2016).
On August 27, 2015, the day before the 2015 rule was supposed to take effect, the U.S.
District Court for the District of North Dakota issued a preliminary injunction staying the
rule in the 13 states that were parties to the lawsuit before that court. See North Dakota
v. U.S. Environmental Protection Agency, 127 F. Supp. 3d 1047 (D. N.D. 2015). All of the
appellate challenges were consolidated for review and, in October, 2015, the U.S. Court
of Appeals for the Sixth Circuit issued a nationwide stay of the rule. See In re
Environmental Protection Agency, 808 F.3d 804 (6th Cir. 2015). When the 2015 WOTUS
rule was stayed, EPA and the Corps returned to applying the agencies’ interpretation of
“waters of the United States” that was in effect before the agencies adopted the new rule,
as did many of the district courts hearing challenges to the rule.
Since the Clean Water Act language is imprecise, most of the initial litigation regarding
the rule focused on whether the federal district courts or appellate courts have jurisdiction
to review the agencies’ rule. In February, 2016, the Sixth Circuit ruled that it had original
jurisdiction to hear the challenges to the rule. See Murray Energy Corp. v. United States
Department of Defense (In re: U.S.D.O.D.), 817 F.3d 261 (6th Cir. 2016). In November,
2016, the National Association of Manufacturers asked the Supreme Court to review the
Sixth Circuit’s decision and, in January, 2017, the Court granted the petition for review.
See Lars-Eric Hedberg, Supreme Court to Decide Water Rule Challenge Venue, 48 Env.
Reporter 123 (Jan. 20, 2017). The Sixth Circuit then held its review of the rule in abeyance
pending the Supreme Court review.
b. Congressional Response
At the same time that States, regulated entities and environmental groups were
challenging the rule in court, Senator Joni Ernst (R-Ia.) introduced a resolution in
Congress to overturn the rule under the Congressional Review Act. See S.J. Res. 22,
114th Cong., 1st Sess. (2015). Although the resolution was passed by the House and the

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Senate, it was vetoed by President Obama on January 20, 2016. Id. In addition to
attempting to repeal the rule under the Congressional Review Act, several members of
Congress asked the Government Accountability Office (GAO) to review the manner in
which EPA used social media in the rulemaking process to solicit comments on the rule
and the GAO issued a report finding that some of the agency’s actions violated
prohibitions in federal appropriations laws against publicity, propaganda and lobbying.
See U.S. Gov’t. Accountability Office, GAO-B-326944, Environmental Protection Agency
– Application of Publicity or Propaganda and Anti-Lobbying Provisions (2015). The
violations identified by the GAO, however, were minor, and did not affect the validity of
the agency’s rule. For a thorough review of the use of social media by EPA and
opponents of the 2015 “waters of the United States” rule in the rulemaking process, see
Stephen M. Johnson, #Better Rules: The Appropriate Use of Social Media in Rulemaking,
44 Fla. St. U. L. Rev. 1 (2017). Legislative efforts to repeal the 2015 rule continued, as
an amendment was added to the 2018 Farm Bill to repeal the rule. See Amena Saiyid
and David Schultz, House Adds Water Rollback to Ill-Fated Farm Bill, Bloomberg
Environment, May 18, 2018. However, the Farm Bill was subsequently rejected by the
House.
c. A Change in Administration and a Change in Direction
The election of Donald Trump as President marked the beginning of the end for the
agencies’ 2015 WOTUS rule. Less than two months after his inauguration, the President
issued Executive Order 13,778, which directed EPA to rescind or revise the WOTUS rule
and to rescind or revise all orders, rules, guidelines or policies implementing or enforcing
the rule. See 80 Fed. Reg. 37,054 (June 29, 2015). The Order micro-manages to a degree
that is unusual for Executive Orders, in that it directs the agencies, when revising the
WOTUS rule, to “consider interpreting the term ‘navigable waters’ … in a manner
consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.” Id. §
3. Scalia’s opinion was the plurality opinion that has not been adopted by any of the
federal appellate courts as the sole basis for determining jurisdiction under the Clean
Water Act. In his statement at the time of issuing the Order, the President indicated, “I’m
directing EPA to take action, paving the way for the elimination of this very destructive
and horrible rule.” See President Donald Trump, Remarks by President Trump at Signing
of Waters of the United States (WOTUS) Executive Order. On the same day that the
President issued the Order, EPA and the Corps announced their intention to review and
rescind or revise the WOTUS rule. See 82 Fed. Reg. 12,532 (Mar. 6, 2017). In the notice,
the agencies stressed that revision of the rule need not be based on a change in facts or
circumstances, but can be based “on a reevaluation of which policy would be better in
light of the facts”, and the agencies indicated that they planned to consider interpreting
“navigable waters” in a revised rule consistent with the plurality opinion in Rapanos. Id.
d.

Two Step Rulemaking to Rescind and Replace the 2015 Rule

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In response to President Trump’s Executive Order, EPA and the Corps announced their
plans to rescind and replace the 2015 rule through a two step process. See U.S.
Environmental Protection Agency, Waters of the United States (WOTUS) Rulemaking:
Rulemaking Process. As Step One of the process, the agencies indicated that they
planned to rescind the 2015 rule and re-codify the regulatory regime that was in place
before the 2015 rule was adopted, while the agencies developed a new rule to replace
the 2015 rule. Id. The proposed Step One rule was published in the Federal Register on
July 27, 2017. See 82 Fed. Reg. 34899 (July 27, 2017). The agencies received almost
700,000 comments on the proposal during a 60 day comment period and published a
supplemental notice of proposed rulemaking in July 2018, seeking additional comment
on the proposal.
As the second step of the process, EPA and the Corps planned to issue a new rule that
re-defined “waters of the United States” in a manner consistent with the directives of the
Executive Order. See U.S. Environmental Protection Agency, Waters of the United
States (WOTUS) Rulemaking: Step Two – Revise.
e.

Applicability Date Rulemaking

As EPA and the Corps progressed with the Step One rescission rulemaking, it became
clear that the agencies would not be likely to finalize that rule before the Supreme Court
issued a ruling that would determine whether the federal district courts or appellate courts
had jurisdiction to hear challenges to the WOTUS rule. The agencies were concerned
that, if the Supreme Court ruled that district courts, rather than appellate courts, had
jurisdiction to review the WOTUS rule, the nationwide stay of the 2015 rule imposed by
the 6th Circuit would be vacated and that rule would again be effective, except in the 13
states where the District Court of North Dakota had enjoined the rule. In order to prevent
that from happening, the Corps and EPA began another rulemaking addressing the 2015
WOTUS rule. On November 22, 2017, the agencies published a notice of proposed
rulemaking to add an “applicability date” to the 2015 WOTUS rule, delaying the date that
the 2015 rule would be “applicable” until 2 years after the applicability date rulemaking
was finalized. See 82 Fed. Reg. 55542 (Nov. 22, 2017). The agencies only provided for
a 21 day comment period on the rule and, on February 6, 2018, published a rule that
effectively delayed the implementation of the 2015 WOTUS rule until February 6, 2020.
See 83 Fed. Reg. 5200 (Feb. 6, 2018).
The applicability date rule was challenged on the date it was published by ten States, the
District of Columbia, and environmental groups in three separate lawsuits in New York
and South Carolina. See New York v. Pruitt, No. 1:18-cv-1030 (S.D. N.Y. Feb. 6, 2018);
Natural Resources Defense Council v. Environmental Protection Agency, No. 18-cv-1048
(S.D. N.Y. Feb. 6, 2018); South Carolina Coastal Conservation League v. Pruitt, No. 2:18-

154

cv-00330-DCN (S.D. S.C. Feb. 6, 2018). Several other environmental groups challenged
the rule in the Northern District of California in June, 2018. See Waterkeeper Alliance,
Inc. v. Pruitt, No. 18-cv-3521 (N.D. Cal. June 13, 2018).
f.

Supreme Court ruling and resumption of district court challenges to the 2015 rule

As the agencies anticipated, on January 22, 2018, the Supreme Court issued an opinion
in National Association of Manufacturers v. Department of Defense, 138 S. Ct. 617
(2018). In a unanimous decision, the Court held that challenges to the “waters of the
United States” rule must be brought in the federal district courts, rather than the federal
circuit courts. Id. Accordingly, the Court remanded the case to the U.S. Court of Appeals
for the Sixth Circuit with instructions to dismiss the challenges in the circuit court for lack
of jurisdiction. Id. On February 28, 2018, the Sixth Circuit vacated the nationwide stay of
the 2015 rule and dismissed all of the consolidated circuit court lawsuits. However, since
the applicability date rulemaking was finalized on February 6, 2018, delaying the 2015
WOTUS rule until 2020, EPA and the Corps continued to implement the “waters of the
United States” rules that were in effect prior to the 2015 WOTUS rule, rather than the
2015 rule.
While the 6th Circuit dismissed the federal appellate court challenges to the 2015 rule,
the Supreme Court’s ruling opened the door for the resumption of the federal district
court challenges to the 2015 rule. EPA and the Corps did not want to defend the 2015
rule in court, so they argued, in several lawsuits, that the challenges to the rule were moot
or should be stayed in light of the fact that the agencies delayed the effective date of the
rule until 2020. Nevertheless, on March 23, 2018, the District Court for the District of North
Dakota, which had issued the stay of the 2015 rule in 13 States, rejected the agencies’
arguments and resumed the litigation challenging the rule. Litigation resumed in several
other district courts as well, including the Southern District of Georgia, which enjoined the
2015 rule in the 11 States that were suing in that case. See Georgia v. Pruitt, No. 2:15cv-0079 (S.D. Ga. June 8, 2018).
g.

Invalidation of Applicability Date Rule

Although EPA and the Corps, pursuant to the applicability date rulemaking, applied the
pre-2015 WOTUS rules for several months after the Sixth Circuit lifted the nationwide stay
of the 2015 rule, the applicability date rule (also referred to as the “suspension rule”)
was invalidated by the U.S. District Court for the District of South Carolina on August 16,
2018. In South Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959
(D.S.C. 2018), the court issued a nationwide injunction of the rule, finding that the EPA
and the Corps failed to provide an opportunity for meaningful comment on the rule and
acted arbitrarily and capriciously in failing to reasonably explain their change in position

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regarding the 2015 rule. The United States District Court for the Western District of
Washington reached a similar conclusion a few months later and also issued a nationwide
injunction of the rule. See Puget Soundkeeper Alliance v. Wheeler, Case No. C15-1342JCC (W.D. Wash. Nov. 26, 2018). After the applicability date rule was invalidated, the
2015 WOTUS rule was once again effective, except in the 24 States where the rule had
been previously enjoined by district courts. But the 2015 rule would not be in force for
long in any States.
h.

The Step One and Step Two Rules are Finalized

On October 22, 2019, EPA and the Corps finalized the Step One rulemaking, which
repealed the 2015 WOTUS rule and restored the pre-2015 regulatory regime. See 84
Fed. Reg. 56626 (Oct. 22, 2019). Before the rule took effect in December, three separate
lawsuits were filed by States, conservation groups and ranchers in district courts in New
Mexico, South Carolina, and New York, challenging the repeal. See South Carolina
Coastal Conservation League et al. v. Andrew R. Wheeler et al., No. 2:19-cv-03006
(D.S.C. Oct. 23, 2019); New York v. Wheeler, No. 1:19-cv-11673 (S.D.N.Y., Dec. 20,
2019).
Six months after the agencies finalized the Step One rulemaking, they finalized the Step
Two rulemaking and published the Navigable Waters Protection Rule to replace the
pre-2015 regulatory regime. See 85 Fed. Reg. 22250 (Apr. 21, 2020). The final rule
identified the following waters as “waters of the United States”: (1) The territorial seas,
and waters which are currently used, or were used in the past, or may be susceptible to
use in interstate or foreign commerce, including waters which are subject to the ebb and
flow of the tide; (2) Tributaries; (3) Lakes and ponds, and impoundments of jurisdictional
waters; and (4) Adjacent wetlands. See 33 C.F.R. § 328.3(a). Interstate waters, which
were defined as waters of the United States under most of the prior WOTUS rules, were
no longer defined as “waters of the United States” unless they fit within one of the four
categories identified in the rule. The rule also eliminated the case-by-case determination
of jurisdiction for waters that have a “significant nexus” to other regulated waters.
The rule explicitly exempted 12 categories of waters, including ephemeral waters, from
the definition of “waters of the United States.” See 33 C.F.R. § 328.3(b). The rule also
adopted new narrower definitions for “tributaries” and “adjacent”, tied to the plurality
opinion in Rapanos, which significantly reduced the scope of wetlands, streams, and
intermittent waters that are regulated as “waters of the United States.” See 33 C.F.R.
§ 328.3(c). A 2020 report from the External Environmental Economics Advisory
Committee determined that the Navigable Waters Protection Rule eliminated protection
for more than half of the nation’s wetlands and 18% of the nation’s streams. See E-EEAC,
Report on the Repeal of the Clean Water Rule and its Replacement with the Navigable

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Waters Protection Rule to Define Waters of the United States (WOTUS) December 2020.
The report also noted that it was unlikely that States would step in to regulate those
waters, as States have not significantly increased their regulatory jurisdiction in the past
when federal jurisdiction has decreased as a result of changes to the WOTUS definition.
Not surprisingly, the Navigable Waters Protection Rule generated a significant amount of
litigation. Conservation groups, States, Native American Tribes, farmers, cattlemen, and
others filed almost a dozen lawsuits challenging the rule in federal district courts around
the country. See, e.g., South Carolina Coastal Conservation League v. Wheeler, No.
2:20-cv-01687-DCN (D.S.C., Apr. 29, 2020); California v. Wheeler, No. 3:20-cv-03005RS (N.D. Cal., May 1, 2020); Colorado v. EPA, No. 20-cv-1461-WJM-NRN (D. Col. May
22, 2020); Pascua Yaqui Tribe, et al v. EPA, No. CV-20-00266-TUC-RM (D. Az., June
22, 2020), New Mexico Cattle Growers Association v. Wheeler, No. 1:19-cv-00988-JHRSCY, (D. N.Mex., Apr. 27, 2020).
i.

Another change in Administration and more rule changes

Before any of the district courts that were reviewing the Step One or Step Two rules from
the Trump Administration reached the merits of the challenges to the rules, there was
another change in Administration and another change in policy. After President Biden
won the election in 2020, he revoked President Trump’s WOTUS Executive Order and
directed EPA and the Corps to review the Navigable Waters Protection rule, as well as
dozens of other rules. See Executive Order 13990, Executive Order on Protecting Public
Health and the Environment and Restoring Science to Tackle the Climate Crisis, Jan. 20,
2021; White House, Fact Sheet: List of Agency Actions for Review, Jan. 20, 2021. On
June 9, 2021, EPA and the Corps announced that they would, once again, engage in
rulemaking to revise the definition of “waters of the United States.” The agencies indicated
that they planned to propose an initial rule to repeal the Navigable Waters Protection rule
and restore the regulatory regime that was in place prior to the 2015 rule, updated to be
consistent with Supreme Court decisions. Following that, they planned to propose a new
rule that would “further refine and build upon that regulatory foundation.” See EPA,
Intention to Revise the Definition of “Waters of the United States”, June 9, 2021.
In light of those plans, the Biden Administration filed motions in the lawsuits challenging
the Navigable Waters Protection rule, seeking a remand of the rule to the agencies
without vacatur. Several of the courts remanded the rule to the agencies. See, e.g., South
Carolina Coastal Conservation League v. Regan, No. 2:20-cv-01687-BHH (D.S.C., July
15, 2021) (Order Granting Motion for Voluntary Remand Without Vacatur). As the
Navigable Waters Protection rule will remain in effect until the agencies adopt a rule to
repeal it, developers are acting quickly to move ahead with projects in waters that were
regulated prior to the rule and will be regulated again when the rule is repealed. See, e.g.,
Stanley Dunlap & Jill Nolin, Okefenokee Lovers Still Hope State, Biden Administration

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Will Halt Mine, Ga. Recorder, Mar. 21, 2021. EPA and the Corps identified over 300
development proposals that were no longer regulated as “waters of the United States”
under the Navigable Waters Protection rule. See Dino Grandoni, Biden Pushes Protection
for More Streams and Wetlands, Targeting a Major Trump Rollback, Wash. Post, June 9,
2021.

Interviews
Jan Goldman Carter, Senior Manager and Counsel for the National Wildlife
Federation's Wetlands and Water Resources Program, discusses the importance of
the Clean Water Act’s “waters of the United States” language as a foundation for
wetlands protection. (YouTube).

Stephen Samuels, an Assistant Section Chief in the Environmental Defense Section
of the Environment and Natural Resources Division of the U.S. DOJ, discusses the
Supreme Court cases interpreting the breadth of the Clean Water Act jurisdiction over
"waters of the United States", the interpretive difficulties the decisions have created,
and the legislative and regulatory efforts to clarify the breadth of jurisdiction.
(YouTube).

•
•
•
•
•
•

Resources
Economic Analysis of 2015 “waters of the United States rule
EPA Website for the “waters of the United States” rule
Videos - Clear Protection for Clean Water (EPA); That’s Enough (“Let it Go”
Parody - Missouri Farm Bureau)
EPA Infographic - Why Clean Water Rules
EPA - Connectivity Study
Analysis of the 2015 “waters of the United States” rule (CPR Blog)

158

Hypotheticals
1. Will McDonald owns a farm near Washington, Iowa. And on that farm, he has several
prairie pothole wetlands. The nearest traditional navigable water, the Iowa River, is
located about 20 miles from McDonald's farm. The wetlands are not adjacent to any
creeks, streams or other watercourses. There is no evidence that the wetlands are
connected by surface water or groundwater to the Iowa River or any other traditional
navigable water. However, every spring, thousands of pintails, mallards, and Canada
geese rely on the wetlands (in conjunction with other wetlands in the region), for nesting
and habitat on their northerly migration. In addition, hundreds of birdwatchers from Illinois,
Missouri and other states flock to the Washington area every year to observe the annual
migration. Would McDonald need to obtain a Clean Water Act Section 404 permit or a
Rivers and Harbors Act Section 10 permit from the Corps of Engineers if he wanted to fill
the wetlands? Would your answer be different if it could be demonstrated that the
wetlands on McDonald's property, in conjunction with other wetlands in the region, played
a vital role in preventing flooding of the Iowa River?
2. Assume, instead, that the wetlands on McDonald's farm are not prairie pothole
wetlands, but are adjacent to an unnamed intermittent stream that flows for a mile into a
ditch, which is connected, after another mile, to the South Fork of Long Creek. The South
Fork of Long Creek flows into Long Creek, which is a tributary of the Iowa River (which is
located 20 miles from McDonald's farm). The wetlands on McDonald's property do not
have a continuous surface connection to any traditional navigable water. There is also no
evidence of a groundwater connection between the wetlands and a traditional navigable
water. However, there is evidence that the wetlands, in conjunction with other wetlands in
the region, play a significant role in filtering pollution and sediments that would otherwise
be deposited in the Iowa River. Would McDonald need to obtain a Clean Water Act
Section 404 permit or a Rivers and Harbors Act Section 10 permit to fill the wetlands on
his property? Would your answer be different if it could be demonstrated that the wetlands
provided important habitat for snakes that were listed on the state's list of endangered
species?
3. Assume, finally, that McDonald lives near Burlington, Iowa and owns property adjacent
to the Mississippi River. There are a few acres of wetlands on his property that are
adjacent to the Mississippi River. Would McDonald need to obtain a Clean Water Act
Section 404 permit or a Rivers and Harbors Act Section 10 permit to fill the wetlands on
his property?

Chapter Quiz
Now that you’ve finished the material covering the federal government’s Clean Water Act
jurisdiction over “navigable waters” and “waters of the United States”, why not try a CALI
Lesson on the material at http://cca.li/PU. It should only take about a half hour or less.

159

Chapter 5
Additions and Discharges
I.

Regulated Activities

As noted in the previous Chapter, Section 301 of the Clean Water Act regulates the
“discharge” of pollutants, which the statute defines to mean “addition” of a pollutant to
navigable waters from a point source. 33 U.S.C. § 1362(12). Section 404 of the Act
authorizes the Corps of Engineers to issue permits for the “discharge of dredged or fill
material into the navigable waters at specified disposal sites.” As a result, whether an
activity in wetlands or regulated waters is regulated under the Clean Water Act frequently
depends on whether it involves the addition of pollutants and on whether it involves the
discharge of dredged or fill material.
The terms “addition,” “dredged material,” “fill material,” and “discharge of dredged or fill
material” are not defined in the Clean Water Act, but the Corps and EPA have defined
most of them by regulation. The Corps first adopted regulations defining many of those
terms in 1977. See 42 Fed. Reg. 37,121 (July 19, 1977). In those regulations, the agency
defined dredged material and fill material as follows:

•
Dredged material: material that is excavated or dredged from the
waters of the United States
•
Fill material: any material used for the primary purpose of replacing an
aquatic area with dry land or of changing the bottom elevation of a waterbody.
The term does not include any pollutant discharged into the water primarily to
dispose of waste, as that activity is regulated under Section 402 * * *

Id. While the definition of “dredged material” was simply tied to the nature of the material,
the definition of “fill material” was tied to the purpose for which the material was being
used. The regulations also included a definition of “discharge of dredged material”
(“addition of dredged material into the waters of the United States”) and a definition of

160

“discharge of fill material” (“addition of fill material into the waters of the United States”),
but neither was particularly illuminating. Id. The regulations did not define “addition.”
The regulations that EPA adopted in 1980 included a similar definition of “dredged
material,” but they defined “fill material” as: “any ‘pollutant’ which replaces portions of the
‘waters of the United States’ with dry land or which changes the bottom elevation of a
water body for any purpose.” See 45 Fed. Reg. 33290, 33421 (May 19, 1980). Thus, the
EPA definition of “fill material” was not tied to the purpose for which a material was used,
but rather the effect of the use of the material. For many years, the EPA and Corps
regulatory definitions of “fill material” diverged in that manner.
Since 2002, however, the Corps and EPA have defined the terms “dredged material” and
“fill material” consistently in their regulations. The current regulatory definitions of the
terms are:

•
Dredged material: material that is excavated or dredged from waters
of the United States.
•
Fill material: material placed in waters of the United States where the
material has the effect of: (i) Replacing any portion of a water of the United
States with dry land; or (ii) Changing the bottom elevation of any portion of a
water of the United States. * * *

33 C.F.R. § 323.2 (Corps’ regulations); 40 C.F.R. § 232.2 (EPA’s regulations). Both
agencies also include a non-exclusive list of materials that constitute “fill material” within
their definition of the term. The list includes “rock, sand, soil, clay, plastics, construction
debris, wood chips, overburden from mining or other excavation activities, and materials
used to create any structure or infrastructure in the waters of the United States.” Id.
The evolution of the definitions of “dredged material,” “fill material,” “discharge of dredged
material,” and “discharge of fill material” are discussed at length in the sections that follow.
However, neither agency has defined “addition” by regulation.

161

Hypothetical
Ellen Marshall is an attorney who specializes in real estate development and she represents
Stewart Griffith, a shopping mall developer. While meeting with Griffith last week to review a
contract to purchase property in Wilmington, Delaware, she learned that Griffith had
instructed some of the contractors who were building a mall for him on property near Dover,
Delaware to fill in an acre of coastal wetlands without seeking a permit from the Corps of
Engineers. Griffith told Marshall that the contractors had found several Black Rail nests in the
wetlands. Since Black Rails are an endangered bird, Griffith was sure that the Corps of
Engineers would never issue him a permit for the development if he applied for one, so he
thought it would be best to fill in the wetlands and hope no one found out about it. Marshall
encouraged Griffith to tell the Corps about his actions and to apply for an after the fact permit,
but he refused and told her that he would take his chances, because he didn’t think anyone
other than the contractors knew that the wetlands had been filled. Marshall believes that
Griffith will be subject to much more stringent penalties if the Corps discovers the violation
independently than if Griffith reports the violation to the Corps. Marshall is also concerned
because there are only a few Black Rails left in Delaware and Griffith’s action destroyed vital
habitat for the birds. If Griffith reports the violation and creates, restores or enhances
wetlands in the vicinity of the mall development in Dover, the birds have a better chance for
survival.
Can Marshall notify the Corps about Griffith’s illegal filling activities if Griffin does not want to
report the violation? See American Bar Association, Model Rule of Professional Conduct 1.6
(and associated comments). Would your answer be different if the filling significantly
increased the likelihood that a hospice near the mall in Dover would be flooded in the event
of a hurricane or major tropical storm in the region?

162

A.

Landclearing

Because neither the statute nor agency regulations define “addition”, there has been
significant litigation regarding whether certain activities constitute the “addition” of a
pollutant. One question that has arisen frequently concerns whether there is an “addition”
of a pollutant when a material is removed from wetlands or other waters of the United
States and then replaced within the same waters. This issue arose shortly after the
enactment of the 1977 amendments to the Clean Water Act in the context of landclearing.
If a person cuts down trees or vegetation in a wetland or other water in order to clear the
land, and some of those trees or vegetation are disposed of in the wetlands or water, has
there been an “addition” of a pollutant, even though the trees and vegetation were in the
wetland or water at the outset of the landclearing activities? The following case explores
that issue.

Photo 24 Photo by Nigel Corby
http://commons.wikipedia.org/wiki/File%3AHarversting_timber_near_Wood_-_geograph.org.uk__1012869.jpg [CC BY SA 2.0]

163

Avoyelles Sportsmen’s League, Inc.
v. Marsh

Resources for the Case
EDF Website (plaintiffs)
Unedited opinion (From Justia)
EPA’s JD for the property
Google Map of all the cases in the coursebook

715 F.2d 897 (5th Cir. 1983)
RANDALL, Circuit Judge:

This is an appeal from a district court
judgment
that
enjoined
the
private
defendants1 from any additional clearing, except by permit under 33 U.S.C. § 1344 (Supp.
V 1981), of certain lands determined by the district court to be wetlands. The federal
defendants2 contend that the district court should have reviewed the Environmental
Protection Agency's ("EPA") final wetlands determination (attached as an appendix to this
opinion) on the basis of the administrative record, and that the court erred in adopting its
own wetlands determination instead of reviewing the agency's determination under the
arbitrary and capricious standard. The federal defendants also dispute the district court's
conclusion that the mere removal of vegetation from wetlands constitutes a discharge of
a pollutant under section 301(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a)
(1976). * * * The private defendants contest the validity of the district court's
determination that approximately ninety percent of their land is a wetland, as well as the
court's conclusion that their landclearing activities fall under the CWA's prohibition on the
discharge of pollutants into waters of the United States.
For the reasons set forth below, to the extent that the district court's decision that ninety
percent of the Lake Long Tract is a wetland is inconsistent with the EPA's determination,
the decision of the district court is reversed. The court's determination that the private
defendants' actual landclearing activities require permits is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
This case concerns an approximately 20,000 acre tract of land (the "Lake Long Tract") in
Avoyelles Parish, Louisiana. The tract lies within the Bayou Natchitoches basin, an area
of approximately 140,000 acres, which, along with the Ouachita, Black and Tensas river
basins, makes up the Red River backwater area. The Bayou Natchitoches basin is subject
to flooding during the spring months, and it experiences an average rainfall of sixty inches
per year.
1

The private defendants are the owners of the land that is the subject of this litigation.
***
2

The federal defendants are United States Army Corps of Engineers and Environmental
Protection Agency officials. * * *
164

Much of the basin had been cleared of forest before the private defendants began their
landclearing activities, but 80,000 acres were still forested. The Lake Long Tract made
up a quarter of this forested area. The topography of the tract itself is uneven, resulting in
some areas with permanent water impoundments and other drier areas that support a
variety of plant species.
The private defendants own the Lake Long Tract. They decided that the land could be put
to agricultural use, specifically soybean production. Consequently, they began a program
of large-scale deforestation in June of 1978. * * * Using bulldozers with shearing blades
that "floated" along the ground, the defendants cut the timber and vegetation at or just
above ground level. The trees were then raked into windrows, burned, and the stumps
and ashes were disced into the ground by other machinery. The shearing and raking
caused some leveling of the tract, and the defendants dug one drainage ditch.
On August 25, 1978, the Vicksburg District of the Army Corps of Engineers ordered
defendant Prevot to halt his activities pending a wetlands determination by the Corps.
Thereafter, Dr. Donald G. Rhodes, an expert consultant employed by the Corps,
undertook a comprehensive vegetative mapping of the Lake Long Tract and determined
that thirty-five percent of it was a wetland. In October, 1978, the Fish and Wildlife Service
wrote a letter to the Corps stating that the Service believed that the entire tract was a
wetland. After Dr. Rhodes had made his determination, the landowners resumed their
activities on the portion of the tract that the Corps had not designated as a wetland.
On November 8, 1978, the plaintiffs5 brought this citizens' suit * * * against a number of
Corps and EPA officials, as well as against the private landowners. The plaintiffs claimed,
inter alia, that the landclearing activities would result in the discharge of dredged and fill
material into the waters of the United States in violation of sections 301(a) and 404 of the
CWA, * * * and also result in the discharge of pollutants into the waters of the United
States in violation of section 402 of the CWA, * * * The plaintiffs requested a declaration
that the tract was a wetland within the scope of the CWA, * * * that the private defendants
could not engage in their landclearing activities without obtaining a permit from the EPA
or the Corps, and that the federal defendants had failed to exercise their "mandatory duty"
* * * to designate the tract a wetland and to order the private defendants to cease and
desist from discharging pollutants and dredged materials. The plaintiffs also sought
injunctive relief against the federal defendants to require them to exercise their jurisdiction
over the property and to issue cease-and-desist orders until the private defendants
obtained the requisite permits. The district court immediately issued a temporary
restraining order, preventing the private defendants from engaging in landclearing
activities pending the court's action on the plaintiffs' motion for a preliminary injunction.
5

The plaintiffs are a number of environmental groups and one interested individual.
***
165

On January 17, 1979, the district court granted the plaintiffs' motion for a preliminary
injunction and ordered the federal defendants to prepare a final wetlands determination
within sixty days. All of the private parties were to have the opportunity to participate in
the administrative proceedings, and the federal defendants were to file a preliminary
report within forty-five days. The court allowed the private defendants to engage in normal
cultivation on the more than 10,000 acres that had been cleared, but ordered them to
apply for a permit with respect to the area already designated by the government as a
wetland and enjoined them for sixty days from engaging [*903] in landclearing activities
on the remainder of the tract.
The parties complied with the court's preliminary order, and the EPA submitted its final
wetlands determination on March 26, 1979. * * * After examining the vegetation, soil
conditions, and hydrology of the tract, the EPA concluded that approximately eighty
percent of the land was a wetland. In a brief final paragraph, the EPA also offered its
views of the types of activities that would require a section 404 permit.
At the private defendants' request, the district court agreed to bifurcate the consideration
of the two major issues in the case: (1) how much of the Lake Long Tract was a wetland,
and (2) which activities required a section 404 permit. After extensive trials on both issues,
the court decided that a section 404 permit was required for the landclearing activities
and that over ninety percent of the Lake Long Tract was a wetland. * * * The court then
enjoined the private defendants from engaging in any additional landclearing activities,
without a section 404 permit, on the land that the court had determined to be a wetland,
other than the land already cleared. The defendants timely appealed.
***
[In Part II of the opinion, the court concluded that the district court used the wrong
standard to review EPA’s determination regarding the extent of wetlands on the private
defendants’ property. The court held that the district court substituted its judgment for the
agency and reviewed the determination de novo, when the court should have accorded
deference to the agency’s determination and upheld it as long as it was not arbitrary or
capricious. However, instead of remanding the case to the district court to allow that court
to review EPA’s determination under the proper standard, the appellate court reviewed it
and upheld the agency’s finding that eighty percent of the private defendants’ property
was wetlands on the grounds that the agency’s determination was not arbitrary or
capricious. The court also rejected claims that the agency’s regulations asserting
jurisdiction over wetlands exceeded the agency’s authority under the Clean Water Act
and that Congress unconstitutionally delegated legislative power to the agency in the Act.]
***

166

III.

ACTIVITIES REQUIRING A PERMIT

[The court began Part III by indicating that the court would uphold the district court’s
factual findings unless they were clearly erroneous. After describing the evidence
presented below, the court concluded that it could not find on the basis of the record that
the district court’s factual findings were clearly erroneous. The major factual findings were
summarized at the beginning of this opinion.] * * *
B.

The Discharge of Pollutants

The district court held that the private defendants' landclearing activities constituted a
"discharge of a pollutant" into the waters of the United States, and that engaging in those
activities without a section 404 dredge-and-fill permit was a violation of Section 301(a) of
the CWA. * * * As the district court did, we must look beyond section 301(a) itself, to the
statutory and regulatory definitions, in order to determine whether the district court's
holding was correct.
Section 502(12) defines the term "discharge of a pollutant" as "(a) any addition of any
pollutant to navigable waters from any point source ...." * * * The question in this case is
whether the landclearing activities were (1) a discharge (2) of a pollutant (3) from a point
source (4) into navigable waters. Further, we must determine whether the activities were
"normal agricultural activities" exempted from the permit requirements by 33 U.S.C.
§ 1344(f).
As discussed in Part II, these activities did occur in navigable waters, as that term is
defined in the statute. Further, we agree with the district court that the bulldozers and
backhoes were "point sources," since they collected into windrows and piles material that
may ultimately have found its way back into the waters. * * * The question then is whether
these activities constituted a "discharge" of a "pollutant."
Emphasizing that the removal of all of the vegetation would destroy the vital ecological
function of the wetlands, the district court concluded that the landclearing activities
constituted a "discharge" within the meaning of the CWA. Both the federal and private
defendants argue that the "mere removal" of wetlands vegetation was not a discharge
because the term discharge is defined as the "addition" of pollutants, not the removal of
materials. The district court rejected this argument as "untenable" because it believed that
the federal defendants' interpretation would frustrate the ecological purposes of the CWA.
* * * In the court's view, the federal defendants' argument implied that "the excavation of
[a] ditch 6 feet deep and 100 feet long requires a § 404 permit (is destructive of wetlands)
but that the clearing of 20,000 acres of forest wetlands by methods involving only de
minimis movement of earth does not (is not destructive of wetlands)." * * *

167

A brief analysis of the district court's factual findings indicates that the dispute about
whether the CWA covers the mere removal of vegetation is a false issue in this case. The
EPA has explained on appeal that it agrees with the district court that "if vegetation or
other materials are redeposited in the wetland, that activity is a discharge. [Their] point of
disagreement with the district court was with its apparent conclusion that removal
activities [were] covered by the Act even when nothing is redeposited on the land."
Federal Defendants' Reply Brief at 2 n.140 The district court's factual findings demonstrate
that this is not a "mere removal" case. The court found that "during the clearing process
small sloughs were filled in and larger ones partially filled thereby levelling the land." * * *
The landowners' own witness admitted to burying logs in holes that he had dug, and the
plaintiffs' witnesses testified that material that would not burn was buried. Since the
landclearing activities involved the redeposit of materials, rather than their mere removal,
we need not determine today whether mere removal may constitute a discharge under
the CWA.41 Any suggestion made by the district court that the term "discharge" does cover
removal is pure dicta.
The word "addition", as used in the definition of the term "discharge," may reasonably be
understood to include "redeposit." As the district court recognized, this reading of the
definition is consistent with both the purposes and legislative history of the statute. The
CWA was designed to "restore and maintain the chemical, physical and biological integrity
of the Nation's waters," 33 U.S.C. § 1251(a), and as discussed in Part II, the legislative
history indicates that Congress recognized the importance of protecting wetlands as a
means of reaching the statutory goals. * * * There is ample evidence in the record to
support the district court's conclusion that the landowners' redepositing activities would
significantly alter the character of the wetlands and limit the vital ecological functions
served by the tract. * * * Since we have concluded that the term "discharge" covers the
redepositing of materials taken from the wetlands, we hold that the district court correctly
decided that the landclearing activities on the Lake Long Tract constituted a discharge
within the meaning of the Act.43
40

After persistent questioning at oral argument, the federal defendants explained further
that, in their view, if the vegetation was cut down without significant disturbance of the
soil and then removed to dry land, no permit would be required. They further explained
that, in their view, if the vegetation were cut down and put back into the wetlands soil,
however, then there would have been a redeposit in the wetland, and hence a discharge.
41

It is equally clear from the record that the activities in this case did not involve a "de
minimis" disturbance; hence we have no reason to determine whether de minimis
disturbances are exempted from the Act. * * *
43

In National Wildlife, supra, the EPA argued that an activity was a discharge requiring
a § 402 permit only if materials were introduced into the water "from the outside world."
693 F.2d at 165. No one has urged here that the materials must come from an external
168

Similarly, we agree with the district court, the plaintiffs and the federal defendants that the
material discharged in this case was "fill," if not "dredged," material and hence subject to
the Corps' regulation under section 404, as long as the activities did not fall within the
section 404(f) exemption. The term "fill material" is defined in the Corps' regulations as:
any material used for the primary purpose of replacing an aquatic area with dry
land or of changing the bottom elevation of a waterbody. The term does not include
any pollutant discharged into the water primarily to dispose of waste, as that
activity is regulated under Section 402 of the Federal Water Pollution Control Act
Amendments of 1972.
33 C.F.R. § 323.2(m). The regulations define the "discharge of fill material" as:
the addition of fill material into waters of the United States. The term generally
includes, without limitation, the following activities: Placement of fill that is
necessary to the construction of any structure in a water of the United States; the
building of any structure or impoundment requiring rock, sand, dirt, or other
material for its construction; site-development fills for recreational, industrial,
commercial, residential, and other uses; causeways or road fills; dams and dikes;
artificial islands; property protection and/or reclamation devices such as riprap,
groins, seawalls, breakwaters, and revetments; beach nourishment; levees; fill for
structures such as sewage treatment facilities, intake and outfall pipes associated
with power plants and subaqueous utility lines; and artificial reefs. The term does
not include plowing, cultivating, seeding and harvesting for the production of food,
fiber, and forest products.
33 C.F.R. § 323.2(n).
As discussed above, the burying of the unburned material, as well as the discing, had the
effect of filling in the sloughs on the tract and leveling the land. The landowners insist that
any leveling was "incidental" to their clearing activities and therefore the material was not
deposited for the "primary purpose" of changing the character of the land. The district
court found, however, that there had been significant leveling. The plaintiffs' witnesses
testified that sloughs that had contained rainwater in the past had been filled in; thus, the
activities were "changing the bottom elevation of the waterbody." Certainly, the activities
were designed to "replace the aquatic area with dry land." Accordingly, we hold that the
source in order to constitute a discharge necessitating a § 404 permit, nor would we
expect them to, since § 404 refers to "dredged" or "fill" material. As discussed infra,
"dredged" material is by definition material that comes from the water itself. A requirement
that all pollutants must come from outside sources would effectively remove the dredgeand-fill provision from the statute. * * *
169

district court correctly concluded that the landowners were discharging "fill material" into
the wetlands.
The district court also found that removal of the vegetation constituted dredging. The
regulations define "dredged material" as "material that is excavated or dredged from
waters of the United States." 33 C.F.R. § 323.2(k). The district court reasoned that since
the vegetation was part of the wetlands, it was also part of the "waters of the United
States;" therefore, removal of the vegetation constituted dredging.
The landowners emphasize that dredging is "excavation." They argue that the vegetation
is a wetland indicator, not a part of the wetland itself; therefore, the removal of the
vegetation from the surface of the wetland is not "dredging." The federal defendants agree
with the landowners that the removal of vegetation from above ground is not dredging,
but they do not view this as a crucial issue in this case because they agree with the district
court that the landowners were discharging "fill material." * * * We note that there was
testimony that the landowners' activities included the digging of ditches and holes, which
would constitute "dredging" even under the landowners' interpretation of the regulation.
Like the federal defendants, however, we do not believe that a decision whether there
was a discharge of dredged material is necessary here, since we have concluded that
there was a discharge of fill material.
***
[The court then determined that the defendants’ activities were not exempt from the permit
requirements of Section 404 as “normal farming operations.”]
***
V.

CONCLUSION
***

With respect to the activities at issue, we hold: * * *
(2) that in filling in the sloughs and leveling the land, the landowners were
redepositing fill material into waters of the United States, and that therefore, [*930]
these activities constituted a ‘discharge of a pollutant,’ * * *
Accordingly, we affirm the district court's judgment that these landclearing activities may
not be carried out without a section 404 dredge-and-fill permit; however, we note that
should a section 404 permit application be filed, the Corps will be free to apply its
expertise to that permit determination without any constraint from the district court's
injunctive determinations except those we have expressly affirmed.

170

Questions and Comments
1.

This was not a government enforcement action. Who sued? What was the
“mandatory duty” that the government failed to perform? Does the government
have a duty to bring enforcement actions whenever a person violates the Clean
Water Act? Government enforcement and citizen suits will be explored more fully
in Chapter 10.

2.

Does the court rely on the plain meaning of the term “addition” to conclude that the
redeposit of material in the wetlands constitutes an “addition?” On what tools of
statutory interpretation did the court rely to reach that determination?

3.

Although the court found that the trees and vegetation in this case met the
regulatory definition of “fill material,” the same appellate court concluded that trees
and vegetation that would be cut and left in wetlands to facilitate the construction
of a electricity transmission line were not “fill material” because the wetlands would
remain wetlands at the end of the project and would not be converted. See Save
Our Wetlands v. Sands, 711 F.2d 634 (5th Cir. 1983).

4.

At the time of this lawsuit, the Corps still defined “fill material” based on the purpose
for which the material was used. Was that important in this case? Would the court
have reached a different determination if the Corps defined “fill material”, as they
do today, to include material that has the effect of replacing any portion of a water
of the United States with dry land or changing the bottom elevation of any portion
of a water of the United States?

5.

The court does not determine whether the trees and vegetation constitute “dredged
material” because the court concludes that they are “fill material.” Note, though,
that the court suggests that the term “addition” must include some redeposit of
materials into waters, since the statute authorizes the Corps to issue permits for
the discharge of “dredged material,” which “is by definition material that comes
from the water itself.” See infra, n.43.

6.

If the landowner could have cleared the land without redepositing any of the trees
or vegetation in the wetlands, would that activity have been regulated as an
“addition” of a pollutant under the court’s opinion? What if the activity involved only
the redeposit of a small amount of vegetation or other material?

7.

Note the difference between the Corps’ delineation of the wetlands on the property
(35%), EPAs’ (80%), and the district court’s (90%). If all were relying on the same
delineation manual, why was there such a disparity in results?

171

8.

The Rest of the Story: The controversy underlying the Avoyelles litigation is
recounted in detail in Oliver A. Houck, Rescuing Ophelia: Avoyelles Sportsmen's
League and the Bottomland Hardwoods Controversy, 81 Miss. L.J. 1473 (2012).

Post-script: In light of the court’s decision in Avoyelles, the Corps issued a Regulatory
Guidance Letter, RGL 85-04, that indicated that the Corps would apply the approach
taken by the Fifth Circuit on a national level and would require 404 permits for landclearing
activities with mechanized equipment if “the activity would involve burying logs or burying
burn residue, or totally or partially filling in sloughs or low areas, or leveling the land.” See
Regulatory Guidance Letter 85-04, Avoyelles ¶ 2 (March 29, 1985). The RGL also
provided that sidecasting of materials from the construction of ditches would require a
permit. Id. With regard to some of the questions that the Avoyelles court did not address,
the Corps’ RGL provided that a 404 permit would not be required for the mere removal of
vegetation from wetlands or waters, id. ¶ 5, and that a 404 permit would not be required
if the landclearing only involved a de minimis discharge of dredged or fill material. Id. ¶ 4.
The RGL also clarified that a permit would not be required for the felling of a tree, piling
of trees, brush and stumps (which don’t totally or partially fill in sloughs or level the land),
filling in stump holes, or many types of discing, plowing or raking the soil surface in
regulated waters. Id. ¶ 6.
However, five years later, the Corps issued another Regulatory Guidance Letter, RGL 9005, in which the agency indicated that “it is our position that mechanized land-clearing
activities in jurisdictional wetlands result in a redisposition of soil that is subject to
regulation under section 404.” See Regulatory Guidance Letter 90-05, Landclearing
Activities Subject to Section 404 Jurisdiction, ¶ 2 (July 18, 1990). The guidance indicated
that some limited exceptions might occur, “such as cutting trees above the soil’s surface
with a chain saw.” Id. Today, the Corps regulates landclearing activities fairly broadly, in
part due to changes in the regulatory definition of “discharge of dredged material”, which
will be discussed in the next section.
B.

Ditching, Draining and Dredging

While the Clean Water Act 404 permit requirement is triggered by the “discharge of
dredged or fill material” into “waters of the United States”, “draining” a wetland, by
pumping out the water, constructing ditches outside of the wetlands to drain the water, or
otherwise, does not require a permit unless the draining activity involves a “discharge of
dredged or fill material” into the wetland. See Save Our Community v. EPA, 971 F.2d
1155 (5th Cir. 1992). However, draining activities frequently involve “discharges of
dredged or fill material,” and when they do, they require a 404 permit.
In addition, since 1990, the Corps has taken the position that wetlands that are subject to
404 jurisdiction and are drained remain subject to 404 jurisdiction even after they are

172

drained, and a permit will be required for any subsequent filling activities on the converted
wetlands. See Memorandum from Lance Wood to All Division and District Counsels,
Evading 404 Jurisdiction by Pumping Water from Wetlands (Apr. 10, 1990). Since the
Corps and EPA define “wetlands” as areas that “under normal circumstances” support
wetland vegetation, the Corps has taken the position that wetlands that are drained
remain subject to jurisdiction because, “under normal circumstances” (i.e., if they had not
been drained), they would support wetland vegetation. Id. This reduces the incentive for
landowners to drain the wetlands, since the ultimate development activity will still require
a permit even though the draining may not.

Photo 25 By U.S. Army Corps of Engineers from USA
http://commons.wikimedia.org/wiki/File%3ADredge_Bill_Holman_works_for_Army_Corps_of_Engineers_a
t_McAlpine_Locks%2C_Louisville%252 [CC-BY-2.0]

“Dredging,” like “draining,” does not require a Section 404 permit unless there is some
discharge (addition of a pollutant) into the “waters of the United States” associated with
the dredging. The act of “dredging” is generally regulated under the Rivers and Harbors
Act, and similar laws. However, dredging in wetlands and other waters of the United
States will almost always involve some incidental redeposit of dredged material in the
waters during the dredging process. The Corps’ regulation of that material has evolved
over the years.
173

In a 1986 rulemaking defining “discharge of dredged material,” the Corps noted that the
material that “incidentally” falls back into the water during the dredging process is
considered a “de minimis” discharge and does not require a permit. See 51 Fed. Reg.
41206, 41210 (Nov. 13, 1986). The regulation adopted at the time excluded “de minimis,
incidental soil movement occurring during normal dredging operations.” Id. at 41232. The
agency indicated that if it regulated the fallback, “we would, in effect, be adding the
regulation of dredging to section 404 which we do not believe was the intent of Congress.”
Id. at 41210.
The Corps changed its policy several years later in response to a lawsuit. In 1992, the
North Carolina Wildlife Federation sued the Corps of Engineers and Colonel Walter
Tulloch, the District Engineer for the Corps’ Wilmington District, because the Corps did
not require a landowner to apply for a section 404 permit when the landowner ditched
and drained wetlands to convert them and build a housing development. See North
Carolina Wildlife Federation, et al. v. Tulloch, E.D.N.C. C90-713-CIV-5-BO (E.D. N.C.
1992). Since the ditching and draining only involved de minimis discharges of material
into the wetlands, the Corps had declined to require the developer to obtain a 404 permit.
Id. In order to settle the lawsuit, EPA and the Corps agreed to propose a revision and
clarification of the definition of “dredged or fill material.” See 58 Fed. Reg. 45007, 45008
(Aug. 25, 1993).
The Tulloch Rule: The regulations that the Corps and EPA adopted broadly defined
“discharge of dredged or fill material” to mean “any addition, including any redeposit, of
dredged material within the United States.” Id. at 45,035. The regulations also indicated
that the term included “any addition, including redeposit, of dredged material, into waters
of the United States which is incidental to any activity, including mechanized landclearing,
ditching, channelization and other excavation.” Id. At the same time, though, the
regulations provided that a permit was not required for “any incidental addition, including
redeposit, of dredged material associated with any activity that does not have or would
not have the effect of destroying or degrading an area of waters of the United States,”
provided that the person undertaking the activity demonstrated to the Corps or EPA,
before undertaking the activity, that it would not destroy or degrade an area of waters of
the United States.” Id. In effect, therefore, incidental fallback would be regulated unless a
developer could demonstrate that the fallback would not harm the wetlands or waters of
the United States. The rulemaking that the agencies issued to settle the lawsuit became
known as “the Tulloch Rule” (in reference to Colonel Tulloch, the defendant in the lawsuit).
The “Tulloch Rule” generated controversy and was challenged, and struck down, in the
following case:

174

National Mining Association v.
U.S. Army Corps of Engineers
145 F.3d 1399 (D.C. Cir. 1998)
WILLIAMS, Circuit Judge:

Resources for the Case
33 C.F.R. 323.2 (1994) (incorp.Tulloch rule)
Unedited opinion (From Justia)
Google Map of all the cases in the coursebook
NMA website

* * * In 1986 the Corps issued a regulation
defining the term "discharge of dredged
material," as used in § 404, to mean "any addition of dredged material into the waters of
the United States," but expressly excluding "de minimis, incidental soil movement
occurring during normal dredging operations." * * * In 1993, responding to litigation, the
Corps issued a new rule removing the de minimis exception and expanding the definition
of discharge to cover "any addition of dredged material into, including any redeposit of
dredged material within, the waters of the United States." 33 C.F.R. § 323.2(d)(1)
(emphasis added). Redeposit occurs when material removed from the water is returned
to it; when redeposit takes place in substantially the same spot as the initial removal, the
parties refer to it as "fallback." In effect the new rule subjects to federal regulation virtually
all excavation and dredging performed in wetlands.
The plaintiffs, various trade associations whose members engage in dredging and
excavation, mounted a facial challenge to the 1993 regulation, claiming that it exceeded
the scope of the Corps's regulatory authority under the Act by regulating fallback. The
district court agreed and granted summary judgment for the plaintiffs. American Mining
Congress v. United States Army Corps of Engineers, 951 F. Supp. 267 (D.D.C.1997).
The district court also entered an injunction prohibiting the Corps and the Environmental
Protection Agency, who jointly administer § 404, from enforcing the regulation anywhere
in the United States. Id. at 278. We affirm.
***
As mentioned above, the Tulloch Rule alters the preexisting regulatory framework
primarily by removing the de minimis exception and by adding coverage of incidental
fallback. Specifically, the rule defines "discharge of dredged material" to include "[a]ny
addition, including any redeposit, of dredged material, including excavated material, into
waters of the United States which is incidental to any activity, including mechanized
landclearing, ditching, channelization, or other excavation." 33 C.F.R. § 323.2(d)(1)(iii)
(emphasis added).3
***
3

EPA promulgated a parallel rule, which is codified at 40 C.F.R. § 232.2(1)(iii).
175

It is undisputed that by requiring a permit for "any redeposit," 33 C.F.R. § 323.2(d)(1)(iii)
(emphasis added), the Tulloch Rule covers incidental fallback. According to the agencies,
incidental fallback occurs, for example, during dredging, "when a bucket used to excavate
material from the bottom of a river, stream, or wetland is raised and soils or sediments
fall from the bucket back into the water." Agencies Br. at 13 (There is no indication that
the rule would not also reach soils or sediments falling out of the bucket even before it
emerged from the water.) Fallback and other redeposits also occur during mechanized
landclearing, when bulldozers and loaders scrape or displace wetland soil, * * * as well
as during ditching and channelization, when draglines or backhoes are dragged through
soils and sediments. * * * Indeed, fallback is a practically inescapable by-product of all
these activities. In the preamble to the Tulloch Rule the Corps noted that "it is virtually
impossible to conduct mechanized landclearing, ditching, channelization or excavation in
waters of the United States without causing incidental redeposition of dredged material
(however small or temporary) in the process." * * * As a result, the Tulloch Rule effectively
requires a permit for all those activities, subject to a limited exception for ones that the
Corps in its discretion deems to produce no adverse effects on waters of the United
States.
The plaintiffs claim that the Tulloch Rule exceeds the Corps's statutory jurisdiction under
§ 404, which, as we have noted, extends only to "discharge," defined as the "addition of
any pollutant to navigable waters." 33 U.S.C. §§ 1344, 1362(12). It argues that fallback,
which returns dredged material virtually to the spot from which it came, cannot be said to
constitute an addition of anything. Therefore, the plaintiffs contend, the Tulloch Rule
conflicts with the statute's unambiguous terms and cannot survive even the deferential
scrutiny called for by Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).
***
The agencies argue that the terms of the Act in fact demonstrate that fallback may be
classified as a discharge. The Act defines a discharge as the addition of any pollutant to
navigable waters, 33 U.S.C. § 1362(12), and defines "pollutant" to include "dredged spoil,"
as well as "rock," "sand," and "cellar dirt." Id. § 1362(6). The Corps in turn defines
"dredged material" as "material that is excavated or dredged from waters of the United
States," 33 C.F.R. § 323.2(c), a definition that is not challenged here. Thus, according to
the agencies, wetland soil, sediment, debris or other material in the waters of the United
States undergoes a legal metamorphosis during the dredging process, becoming a
"pollutant" for purposes of the Act. If a portion of the material being dredged then falls
back into the water, there has been an addition of a pollutant to the waters of the United
States. Indeed, according to appellants National Wildlife Federation et al. ("NWF"), who
intervened as defendants below, this reasoning demonstrates that regulation of redeposit
is actually required by the Act.

176

We agree with the plaintiffs, and with the district court, that the straightforward statutory
term "addition" cannot reasonably be said to encompass the situation in which material is
removed from the waters of the United States and a small portion of it happens to fall
back. Because incidental fallback represents a net withdrawal, not an addition, of
material, it cannot be a discharge. As we concluded recently in a related context, "the
nearest evidence we have of definitional intent by Congress reflects, as might be
expected, that the word 'discharge' contemplates the addition, not the withdrawal, of a
substance or substances." North Carolina v. FERC, 112 F.3d 1175, 1187 (D.C. Cir.1997).
The agencies' primary counterargument--that fallback constitutes an "addition of any
pollutant" because material becomes a pollutant only upon being dredged--is ingenious
but unconvincing. Regardless of any legal metamorphosis that may occur at the moment
of dredging, we fail to see how there can be an addition of dredged material when there
is no addition of material. Although the Act includes "dredged spoil" in its list of pollutants,
33 U.S.C. § 1362(6), Congress could not have contemplated that the attempted removal
of 100 tons of that substance could constitute an addition simply because only 99 tons of
it were actually taken away. * * *
In fact the removal of material from the waters of the United States, as opposed to the
discharge of material into those waters, is governed by a completely independent
statutory scheme. Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403,
makes it illegal "to excavate or fill" in the navigable waters of the United States without
the Corps's approval. As the general counsel of the Army noted in a law review article
published a few years after the passage of the Clean Water Act, Congress enacted "two
separate statutory frameworks. Section 10 of the 1899 Act covers the act of dredging,
while Section 404 [of the Clean Water Act] covers the disposal of the dredged material."
***
The agencies, though acknowledging that the Tulloch Rule effectively requires a permit
for all mechanized landclearing, ditching, channelization or excavation in waters of the
United States, * * * locate their permitting requirement under § 404, not under the Rivers
and Harbors Act's explicit coverage of "excavat[ion]." The explanation for this choice is
apparently that the scope of the Corps's geographic jurisdiction is narrower under the
Rivers and Harbors Act than under the Clean Water Act, extending only to waters subject
to the ebb and flow of the tide, or waters that are used, have been used, or may be
susceptible for use to transport interstate or foreign commerce. 33 C.F.R. § 329.4; see
also id. § 328.1 (noting difference between geographic jurisdiction under the two statutes).
There may be an incongruity in Congress's assignment of extraction activities to a statute
(the Rivers and Harbors Act) with a narrower jurisdictional sweep than that of the statute
covering discharges (the Clean Water Act). This incongruity, of course, could be cured
either by narrowing the jurisdictional reach of the Clean Water Act or broadening that of
the Rivers and Harbors Act. But we do not think the agencies can do it simply by declaring

177

that incomplete removal constitutes addition.
***
NWF complains that our understanding of "addition" reads the regulation of dredged
material out of the statute. They correctly note that since dredged material comes from
the waters of the United States, 33 C.F.R. § 323.2(c), any discharge of such material into
those waters could technically be described as a "redeposit," at least on a broad
construction of that term. The Fifth Circuit made a similar observation fifteen years ago: "
'[D]redged' material is by definition material that comes from the water itself. A
requirement that all pollutants must come from outside sources would effectively remove
the dredge-and-fill provision from the statute." Avoyelles Sportsmen's League v. Marsh,
715 F.2d 897, 924 n.43 (5th Cir. 1983). But we do not hold that the Corps may not legally
regulate some forms of redeposit under its § 404 permitting authority.6 We hold only that
by asserting jurisdiction over "any redeposit," including incidental fallback, the Tulloch
Rule outruns the Corps's statutory authority. Since the Act sets out no bright line between
incidental fallback on the one hand and regulable redeposits on the other, a reasoned
attempt by the agencies to draw such a line would merit considerable deference. Cf.
Dubois v. U.S. Dep't of Agriculture, 102 F.3d 1273, 1296-99 (1st Cir. 1996) (although
movement of pollutants within the same body of water might not constitute an "addition"
for purposes of NPDES permit requirement, movement from one body of water to a
separate one with different water quality is an addition). But the Tulloch Rule makes no
effort to draw such a line, and indeed its overriding purpose appears to be to expand the
Corps's permitting authority to encompass incidental fallback and, as a result, a wide
range of activities that cannot remotely be said to "add" anything to the waters of the
United States.
***
In a press release accompanying the adoption of the Tulloch Rule, the White House
announced: "Congress should amend the Clean Water Act to make it consistent with the
agencies' rulemaking." * * * While remarkable in its candor, the announcement contained
a kernel of truth. If the agencies and NWF believe that the Clean Water Act inadequately
protects wetlands and other natural resources by insisting upon the presence of an
"addition" to trigger permit requirements, the appropriate body to turn to is Congress.
Without such an amendment, the Act simply will not accommodate the Tulloch Rule. The
judgment of the district court is
Affirmed.
6

Even the plaintiffs concede that under a broad reading of the term "redeposit," "a
redeposit could be an addition to [a] new location and thus a discharge." Plaintiffs' Br. at
17.
178

SILBERMAN, Circuit Judge, concurring:
I join the opinion of the court and write separately only to make explicit what I think implicit
in our opinion. We hold that the Corps's interpretation of the phrase "addition of any
pollutant to navigable waters" to cover incidental fallback is "unreasonable," which is the
formulation we use when we have first determined under Chevron that neither the
statutory language nor legislative history reveals a precise intent with respect to the issue
presented--in other words, we are at the second step of the now-familiar Chevron Step I
and Step II analysis. See, e.g., Whitecliff, Inc. v. Shalala, 20 F.3d 488 (D.C. Cir.1994);
Fedway Associates, Inc. v. United States Treasury, 976 F.2d 1416 (D.C. Cir.1992); Abbott
Labs. v. Young, 920 F.2d 984 (D.C. Cir.1990); Associated Gas Distribs. v. FERC, 899
F.2d 1250 (D.C. Cir.1990). As our opinion's discussion of prior cases indicates, the word
addition carries both a temporal and geographic ambiguity. If the material that would
otherwise fall back were moved some distance away and then dropped, it very well might
constitute an "addition." Or if it were held for some time and then dropped back in the
same spot, it might also constitute an "addition." But the structure of the relevant statutes
indicates that it is unreasonable to call incidental fallback an addition. To do so perforce
converts all dredging--which is regulated under the Rivers and Harbors Act--into
discharge of dredged material which is regulated under the Clean Water Act.
Moreover, that Congress had in mind either a temporal or geographic separation between
excavation and disposal is suggested by its requirement that dredged material be
discharged at "specified disposal sites," 33 U.S.C. § 1344 (1994), a term which simply
does not fit incidental fallback.
***
Questions and Comments
1.

Did this lawsuit arise in the context of an enforcement action? Had the Corps
applied the Tulloch rule to require members of the National Mining Association to
obtain permits for the incidental fallback during mining activities? If not, why was
there no problem with standing or ripeness of the challenge? Chapter 3
(Administrative Law) and Chapter 10 (Administrative Appeals, Enforcement and
Judicial Review) will examine questions like this in more detail.

2.

Does the court resolve the case at Chevron step one or two? Is the statutory
language clear?

3.

What impact, if any, does the court’s opinion, have on the Corps’ regulation of “fill
material” under the Clean Water Act?

179

4.

The court appears to leave open the possibility that the Corps can require a Section
404 permit for some redeposit of material that occurs during dredging in wetlands
and waters of the United States. In what circumstances might it be appropriate to
require a permit? Is that inconsistent with the majority’s statement that incidental
fallback cannot be a discharge because it “represents a net withdrawal, not an
addition, of material”?

5.

If, as the court notes, dredging activities are already regulated under the Rivers
and Harbors Act, why didn’t the Corps rely on its Rivers and Harbors Act authority
to protect wetlands?

6.

Take a moment to review the APA’s standards for judicial review of agency action,
particularly 5 U.S.C. § 706(2)(C). What do you think about the White House’s press
release in light of those standards?

Post-script: In the wake of the D.C. Circuit’s ruling, thousands of acres of wetlands were
ditched and converted to other uses. See Carl H. Herschner, Tulloch Drilling, Wetlands
Technical Report 99-4 (Virginia Institute of Marine Science, May 1999). The Virginia
Institute of Marine Science at the College of William and Mary estimated that 12,000 acres
of wetlands in North Carolina and Virginia alone were converted through “Tulloch ditching”
in the year after the decision. Id. In an attempt to limit those impacts, the agencies, in a
1999 rulemaking, interpreted the National Mining Association decision narrowly to prohibit
the regulation of “incidental fallback,” but to allow regulation of other redeposit of material
in waters of the United States. See 64 Fed. Reg. 25120 (May 10, 1999).
Tulloch II: Only two years later, the agencies amended their regulations and to clarify the
definition of “discharge of dredged material.” The regulations that the agencies adopted
in 2001 defined “discharge of dredged material” as “any addition of dredged material into,
including any redeposit of dredged material other than incidental fallback within, the
waters of the United States.” See 66 Fed. Reg. 4550 (Jan. 17, 2001). The agencies
defined “incidental fallback” as “the redeposit of small volumes of dredged material that
is incidental to excavation activity in waters of the United States when such material falls
back in substantially the same place as the initial removal.” (emphasis added). Id.
More controversially, though, the agencies included a presumption in the rule that “the
use of mechanized earth-moving equipment to conduct landclearing, ditching,
channelization, instream mining or other earth-moving activity in waters of the United
States” results in a discharge of dredged material “unless project-specific evidence shows
that the activity results in only incidental fallback. Id. Those regulations (“Tulloch II”) were
codified at 33 C.F.R. § 323.2 (2002).

180

Not surprisingly, the regulations generated more controversy and the National
Association of Home Builders and several other industry trade organizations challenged
the rule as exceeding the Corps’ authority under the Clean Water Act, the APA, and the
Tenth Amendment of the Constitution. See National Association of Home Builders v. U.S.
Army Corps of Engineers, No. 01-0274, 2007 U.S. Dist. LEXIS 6366 (D.D.C. 2007). In
2007, the United States District Court for the District of Columbia held that the agency’s
definition of “incidental fallback” was invalid and enjoined the agency from enforcing and
applying that definition. Id. at *15. The court held that the Corps should have defined
“incidental fallback” in terms of the amount of time that material was removed from waters,
in addition to the location where it was replaced, and that the agency should not have
defined it with respect to the volume of the material being removed. Id. at *11-*13. In light
of the court’s decision, EPA and the Corps re-adopted the definition of “discharge of
dredged material” that they adopted in 1999, which did not include a definition for
“incidental fallback” or the presumption that the use of mechanized earth moving
equipment results in a discharge of dredged material. See 73 Fed. Reg. 79641 (Dec. 30,
2008). The current definition is codified at 33 C.F.R. § 323.2 (2013).

Interview
Jan Goldman Carter, Senior Manager and Counsel for the National Wildlife
Federation's Wetlands and Water Resources Program, discusses the Tulloch
litigation (in which she was involved) and the aftermath of the litigation.
(YouTube).

181

C.

Sidecasting

The National Mining
Association decision focused on
the incidental redeposit of
material in wetlands in the
same place and at the same
time as it is being removed from
the wetlands. However, it is
quite common, during ditching
or dredging activities, to remove
material from a wetland or
water of the United States and
place it in a different location
within the same wetland or
water of the United States. As
Photo 26 Corps of Engineers Photo
noted above, the Corps has
http://www.saw.usace.army.mil/Missions/Navigation/Dredging/Dist
consistently interpreted that
rictPlantDredging/Merritt.aspx
activity, which is known as
sidecasting, to constitute a “discharge” or “addition” of material (dredged or fill), which
requires a Section 404 permit. See, e.g. Regulatory Guidance Letter 85-04, Avoyelles ¶
2 (March 29, 1985). In 1997, a divided panel of the United States Court of Appeals for
the Fourth Circuit could not reach consensus on whether “sidecasting” required a
Section 404 permit. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). However,
three years later, a different panel of the Fourth Circuit concluded that “sidecasting”
requires a 404 permit in the United States v. Deaton case, which follows.

United States v. Deaton
209 F.3d 331 (4th Cir. 2000)
MICHAEL, Circuit Judge:

Resources for the Case
Unedited opinion (From Justia)
Google Map of all the cases in the coursebook

The United States sued James and
Rebecca Deaton, alleging that they
violated §§ 301 and 404 of the Clean Water Act, * * * by sidecasting dredged material as
they dug a drainage ditch through a wetland. The district court ultimately awarded
summary judgment to the Deatons, and the government appeals. We reverse, holding
that sidecasting in a jurisdictional wetland is the discharge of a pollutant under the Clean
Water Act. We dismiss the Deatons' cross-appeal for lack of appellate jurisdiction.

182

I
On November 22, 1988, James Deaton signed a contract to buy a twelve-acre parcel of
land in Wicomico County, Maryland, subject to the condition that it was suitable for
developing a small residential subdivision. Deaton immediately applied to the Wicomico
County Health Department for a sewage disposal permit for a five-lot "single family
subdivision." The Health Department denied the permit on April 26, 1989, because the
groundwater elevations were unacceptably high at the disposal sites proposed by Deaton
and his consultant. The department commented that "[t]he majority of the parcel... is very
poorly drained and would severely restrict the function of the onsite sewage disposal
systems." There was a "very limited area" that might warrant evaluation, the department
said, if it proved to be within the property boundary. In late April 1989, after the permit
was denied, Deaton contacted the U.S. Department of Agriculture, Soil Conservation
Service (SCS), to discuss the wetness problem on the twelve-acre parcel. Deaton was
referred to Glen Richardson, who agreed to examine the site. According to Deaton,
Richardson suggested that the problem could be corrected by digging a ditch through the
middle of the property. Deaton and his wife (Rebecca) decided to go ahead with the
purchase of the land, and title was transferred to them in June 1989.
Before any ditching work began, the property was also inspected by Michael Sigrist,
District Conservationist at the SCS in Wicomico County. Deaton and Sigrist walked over
the property together, and Deaton told Sigrist that he wanted to dig a large ditch to drain
the area. Sigrist saw hydric soils (which are typical of wetland areas), areas of standing
water, "a large, low wet area" in the center of the parcel, and non-tidal wetlands. Water
was flowing from the property into a culvert that connects to (or is part of) Perdue Creek.
(The waters of Perdue Creek end up in the Wicomico River, a tributary of the Chesapeake
Bay.) Sigrist advised Deaton that a large portion of his property contained non-tidal
wetlands and that he would need a permit from the U.S. Army Corps of Engineers (the
Corps) before undertaking any ditching work. Deaton ignored Sigrist's advice and hired a
contractor to dig a drainage ditch across the property. Using a back hoe, a front-end track
loader, and a bulldozer, the contractor dug a 1,240 foot ditch that intersected the areas
that Sigrist had identified as wetlands. As he dug, the contractor piled the excavated dirt
on either side of the ditch, a practice known as sidecasting.
In July 1990 the Corps learned of possible Clean Water Act violations on the Deaton
property. A Corps ecologist, Alex Dolgos, inspected the site and concluded that it
contained wetlands, that those wetlands were "waters of the United States" under the
Clean Water Act, and that the ditching and fill work that had taken place required a permit.
On August 7 and 8, 1990, the Corps issued stop-work orders to Deaton and his contractor,
warning them that their placement of fill material in a non-tidal wetland violated § 404 of
the Clean Water Act, * * * and that no further work should be done without a permit.
Deaton filed a joint state and federal application in December 1990, seeking permits to

183

ditch and fill wetlands in order to construct an eighteen-lot subdivision. That application
was returned as incomplete on February 15, 1991, and was never resubmitted. Over the
next three years Deaton engaged several consultants to inspect the property, negotiate
with the Corps, and prepare a remediation plan. No remediation ever took place, however,
and on July 21, 1995, the government filed a civil complaint alleging that the Deatons had
violated the Clean Water Act by discharging fill material (the dirt excavated from the ditch)
into a regulated wetland.
***
[In the district court, both parties moved for summary judgment. The court initially granted
partial summary judgment to the government, holding that sidecasting into wetlands on
the property was the “discharge of a pollutant.” However, while the litigation in the district
court continued, the 4th Circuit issued the United States v. Wilson decision described
above. Although there was no majority holding in that case regarding whether sidecasting
is regulated under Section 404, the district court vacated its prior determination that
sidecasting was the “discharge of a pollutant’ and granted summary judgment for the
Deatons. The government then appealed.] * * *
II.
The Clean Water Act prohibits the discharge, without a permit, of any pollutant into
“navigable waters.” See 33 U.S.C. §§ 1311(a), 1362(6), (7), (12). * * *
The Corps argues and we assume for purposes of this appeal that the Deatons' property
contains wetlands that are subject to the Clean Water Act. The narrow issue before us
today is whether sidecasting (that is, the deposit of dredged or excavated material from
a wetland back into that same wetland) constitutes the discharge of a pollutant under the
Clean Water Act. We hold that it does.
The Clean Water Act defines "discharge of a pollutant" to mean "any addition of any
pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)(A). The
definition of pollutant, in turn, specifically includes "dredged spoil" that has been
"discharged into water." Id. § 1362(6). The piles of dirt dredged up by the Deatons'
contractor were, without question, "pollutants" within the meaning of the Act. See Wilson,
133 F.3d at 259 (op. of Niemeyer, J.) ("[D]redged materials, including the native soils
excavated by ditching activities, may constitute a pollutant within the meaning of the
Clean Water Act."); id. at 269, 274 & n.12 (op. of Payne, J.) (dredged earth is a pollutant).
This conclusion, instead of resolving the dispute, merely brings us to its center because
the parties disagree fundamentally about what it means to "discharge... a pollutant" into
the waters of the United States.

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The Deatons seize on the word "addition" in the phrase "addition of any pollutant" in the
statutory definition of discharge. 18 U.S.C. § 1362(12). They argue that the "ordinary and
natural meaning of `addition' means something added, i.e., the addition of something not
previously present." * * * Thus, according to the Deatons, no pollutant is discharged
unless there is an "introduction of new material into the area, or an increase in the amount
of a type of material which is already present." Wilson, 133 F.3d at 259 (op. of Niemeyer,
J.). Because sidecasting results in no net increase in the amount of material present in
the wetland, the Deatons argue, it does not involve the "addition" (or discharge) of a
pollutant. See National Mining Ass'n v. U.S. Army Corps of Engineers, 145 F.3d 1399,
1404 (D.C. Cir. 1998) ("[W]e fail to see how there can be an addition of dredged material
when there is no addition of material."). We are not convinced by this argument.
Contrary to what the Deatons suggest, the statute does not prohibit the addition of
material; it prohibits "the addition of any pollutant." The idea that there could be an
addition of a pollutant without an addition of material seems to us entirely unremarkable,
at least when an activity transforms some material from a nonpollutant into a pollutant, as
occurred here. In the course of digging a ditch across the Deaton property, the contractor
removed earth and vegetable matter from the wetland. Once it was removed, that material
became "dredged spoil," a statutory pollutant and a type of material that up until then was
not present on the Deaton property. It is of no consequence that what is now dredged
spoil was previously present on the same property in the less threatening form of dirt and
vegetation in an undisturbed state. What is important is that once that material was
excavated from the wetland, its redeposit in that same wetland added a pollutant where
none had been before. See 33 U.S.C. § 1362 (6), (12). Thus, even under the definition of
"addition" (that is, "something added") offered by the Deatons, sidecasting adds a
pollutant that was not present before.
Although we conclude that the Clean Water Act's definition of discharge and its use of the
term "addition" are unambiguous, the underlying rationale for defining dredged spoil as a
pollutant provides further support for our conclusion. In deciding to classify dredged spoil
as a pollutant, Congress determined that plain dirt, once excavated from waters of the
United States, could not be redeposited into those waters without causing harm to the
environment. Indeed, several seemingly benign substances like rock, sand, cellar dirt,
and biological materials are specifically designated as pollutants under the Clean Water
Act. See 33 U.S.C. § 1362(6). Congress had good reason to be concerned about the
reintroduction of these materials into the waters of the United States, including the
wetlands that are a part of those waters.
Wetlands perform a vital role in maintaining water quality by trapping sediment and toxic
and nontoxic pollutants before they reach streams, rivers, or other open bodies of water.
See Office of Technology Assessment, U.S. Congress, Wetlands: Their Use and
Regulation 48-50 (1984). Given sufficient time, many (but not all) of these pollutants will

185

decompose, degrade, or be absorbed by wetland vegetation. See id. at 48-49. When a
wetland is dredged, however, and the dredged spoil is redeposited in the water or
wetland, pollutants that had been trapped may be suddenly released. See id. at 49
("Natural or manmade alterations of the wetland caused by lowering the water table,
dredging, and the like, could mobilize large quantities of toxic materials."); id. at 124 ("A
long-term effect of the disposal of contaminated dredged spoil in or near wetlands is the
potential bioavailability of toxic chemicals such as oil and grease, pesticides, arsenic, and
heavy metals, when the sediments are resuspended periodically."); Wilson, 133 F.3d at
273-74 (op. of Payne, J.) (describing how sidecasting dredged material threatens to
release pollutants contained in sub-surface soil). At the same time, the increased
drainage brought about by the dredging may render the surrounding wetland unable to
reabsorb and filter those pollutants and sediment (the very purpose of dredging is to
destroy wetland characteristics). 40 C.F.R. § 230.41(b) (explaining how discharge of
dredged or fill material in wetlands "can degrade water quality by obstructing circulation
patterns that flush large expanses of wetland systems, by interfering with the filtration
function of wetlands, or by changing the aquifer recharge capability of a wetland"). Even
in a pristine wetland or body of water, the discharge of dredged spoil, rock, sand, and
biological materials threatens to increase the amount of suspended sediment, harming
aquatic life. See id.; Office of Technology Assessment, supra, at 48; see also Wilson, 133
F.3d at 274 (op. of Payne, J.).
These effects are no less harmful when the dredged spoil is redeposited in the same
wetland from which it was excavated. The effects on hydrology and the environment are
the same. Surely Congress would not have used the word "addition" (in “addition of any
pollutant") to prohibit the discharge of dredged spoil in a wetland, while intending to
prohibit such pollution only when the dredged material comes from outside the wetland.
In reaching this conclusion, our understanding of the word "addition" is the same as that
of nearly every other circuit to consider the question. See Avoyelles Sportsmen's League,
Inc. v. Marsh, 715 F.2d 897, 923-25 (5th Cir. 1983) (interpretation of "addition" to include
"redeposit" of trees and vegetation dredged or excavated from the wetland itself is
consistent with both the purposes and legislative history of the Clean Water Act); United
States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir. 1985) (redeposit of spoil
churned up by tugboat propellers constituted the discharge of a pollutant under the Clean
Water Act), vacated and remanded on other grounds, 481 U.S. 1034 (1987), readopted
in relevant part, 848 F.2d 1133 (11th Cir. 1988); Rybachek v. EPA, 904 F.2d 1276, 1285
(9th Cir. 1990) (dirt and gravel extracted by gold miners and redeposited into the stream
bed from which it was extracted constituted an "addition" of a pollutant under the Clean
Water Act); see also United States v. Bay-Houston Towing Co., 33 F. Supp. 2d 596, 606
(E.D. Mich. 1999) (adopting reasoning of Judge Payne's Wilson opinion). But cf. National
Mining Ass'n, 145 F.3d at 1404, 1406 (concluding that "incidental fallback" of dredged
material into waterway does not constitute the addition of a pollutant, but distinguishing
between incidental fallback and sidecasting).

186

For these reasons, we hold that the Clean Water Act's definition of discharge as "any
addition of any pollutant to navigable waters" encompasses sidecasting in a wetland. We
therefore reverse the district court's June 23, 1998, judgment to the contrary.
Questions and Comments
1.

Transformation: The court seems to concede that no “material” is being added to
the wetlands in the case, but holds that “pollutants” are being added. How can
pollutants be added when no material is added?

2.

Is the court suggesting that sidecasting always constitutes an addition of a
pollutant? What is the basis for the court’s determination that it is appropriate for
the Corps to regulate sidecasting in this case? The plain meaning of the statutory
terms? Legislative history? The purposes of the statute?

3.

Time and Place Matter: Although the Deatons seek to rely on the D.C. Circuit’s
National Mining Association decision, what direction, if any, did that court provide
regarding whether, or when, the Corps could regulate redeposit of material in
waters of the United States? Did that court address the issue of sidecasting?

D.

Deep Ripping

Another activity that alters wetlands or other waters of the United States, but does not
involve the addition of material from outside of those waters is “deep ripping.” Deep
ripping is a technique used to break up compacted soil, and involves dragging four to
seven foot metal blades through the soil. It is generally used to improve site drainage and
facilitate deep root growth. Like sidecasting, the activity involves only redeposit of material
that was previously in the waters into which it is being placed. However, because the
activity can destroy the hydrological integrity of wetlands, the Corps generally requires a
Section 404 permit for deep ripping. See Regulatory Guidance Letter 96-02, Applicability
of Exemptions under Section 404(f) to “Deep Ripping” Activities in Wetlands (Dec. 12,
1996). The United States Court of Appeals for the Ninth Circuit addressed the Corps’
authority to regulate deep-ripping in the Borden Ranch Partnership v. United States Army
Corps of Engineers case that follows.

187

Borden Ranch Partnership v. United
States Army Corps of Engineers

Resources for the Case
Deep Ripping information - from the Western
Australia Dept. of Agr. and Food
Deep Ripping Videos - YouTube and Facebook
Unedited Opinion (from Justia)
Oral Argument Audio - from the Oyez Project
Google Map of all the cases in the coursebook

261 F.3d 810 (9th Cir. 2001)
HAWKINS, Circuit Judge:

This appeal concerns the authority of the
U.S. Army Corps of Engineers ("the
Corps") and the Environmental Protection
Agency ("EPA") over a form of agricultural activity called "deep ripping" when it occurs in
wetlands. We conclude that the Clean Water Act applies to this activity and affirm the
district court's findings that Borden Ranch violated the Act by deep ripping in protected
wetland swales. * * *
Facts and Procedural Background
In June of 1993, Angelo Tsakopoulos, a Sacramento real estate developer, purchased
Borden Ranch, an 8400 acre ranch located in California's Central Valley. Prior to
Tsakopoulos's purchase, the relevant areas of the ranch had been used primarily as
rangeland for cattle grazing. The ranch contains significant hydrological features including
vernal pools, swales, and intermittent drainages. Vernal pools are pools that form during
the rainy season, but are often dry in the summer. Swales are sloped wetlands that allow
for the movement of aquatic plant and animal life, and that filter water flows and minimize
erosion. Intermittent drainages are streams that transport water during and after rains. All
of these hydrological features depend upon a dense layer of soil, called a "restrictive
layer" or "clay pan,” which prevents surface water from penetrating deeply into the soil.
Tsakopoulos intended to convert the ranch into vineyards and orchards and subdivide it
into smaller parcels for sale. Vineyards and orchards, however, require deep root
systems, much deeper than the restrictive layer in the relevant portions of Borden Ranch
permitted. For vineyards and orchards to grow on this land, the restrictive layer of soil
would first need to be penetrated. This requires a procedure known as “deep ripping," in
which four-to seven-foot long metal prongs are dragged through the soil behind a tractor
or a bulldozer. The ripper gouges through the restrictive layer, disgorging soil that is then
dragged behind the ripper.
Under the Clean Water Act, an individual seeking to fill protected wetlands must first
obtain a permit from the Corps. Since 1993, Tsakopoulos and the Corps have disagreed
about the Corps' authority to regulate deep ripping in wetlands. Tsakopoulos initiated
deep ripping without a permit in the fall of 1993, and the Corps granted him a retrospective
permit in the spring of 1994, when Tsakopoulos agreed to various mitigation

188

requirements. In the fall of 1994, the Corps and the EPA informed Tsakopoulos that he
could deep rip in uplands and that he could drive over swales with the deep ripper in its
uppermost position, but that he could not conduct any deep ripping activity in vernal pools.
The next spring, the Corps discovered that deep ripping had occurred in protected
wetlands and promptly issued a cease and desist order. From July 1995 through
November 1995, Tsakopoulos again initiated deep ripping on various parcels of land
without a permit. The Corps concluded that more protected wetlands had been ripped
and again issued a cease and desist order.
In May of 1996, the Corps and the EPA entered into an Administrative Order on Consent
with Tsakopoulos that was intended to resolve his alleged Clean Water Act violations.
Under the agreement, Tsakopoulos set aside a 1368-acre preserve and agreed to refrain
from further violations.
***
In March of 1997 the Corps concluded that Tsakopoulos had continued to deep rip
wetlands without permission. That April, EPA investigators visited the ranch and observed
fully engaged deep rippers passing over jurisdictional wetlands. EPA then issued an
Administrative Order to Tsakopoulos.
Tsakopoulos responded by filing this lawsuit, challenging the authority of the Corps and
the EPA to regulate deep ripping. The United States filed a counterclaim seeking
injunctive relief and civil penalties for Tsakopoulos's alleged violations of the Clean Water
Act.
Both parties filed motions for summary judgment. The district court ruled that the Corps
has jurisdiction over deep ripping in jurisdictional waters. However, the court found
disputed facts with respect to whether such deep ripping had actually occurred. These
facts were litigated in a bench trial that began on August 24, 1999, and concluded on
September 16, 1999. The district court heard evidence from over twenty witnesses and
received hundreds of documentary exhibits.
The district court subsequently entered findings of fact and conclusions of law determining
that Tsakopoulos had repeatedly violated the Clean Water Act. The court found 348
separate deep ripping violations in 29 drainages, and 10 violations in a single vernal pool.
The district court gave Tsakopoulos the option of paying a $1.5 million penalty or paying
$500,000 and restoring four acres of wetlands. Tsakopoulos chose the latter option. After
denying a motion for more specific findings of fact, the district court entered its final order
in favor of the United States.
Tsakopoulos then brought this timely appeal. We have jurisdiction under 28 U.S.C.
§§ 1291.

189

Analysis
Corps Jurisdiction over Deep Ripping
***
A.

Discharge of a Pollutant

Tsakopoulos initially contends that deep ripping cannot constitute the "addition" of a
"pollutant” into wetlands, because it simply churns up soil that is already there, placing it
back basically where it came from. This argument is inconsistent with Ninth Circuit
precedent and with case law from other circuits that squarely hold that redeposits of
materials can constitute an "addition of a pollutant" under the Clean Water Act. Rybachek
v. United States Envtl. Prot. Agency, 904 F.2d 1276 (9th Cir. 1990), considered a claim
that placer mining activities were exempt from the Act. We held that removing material
from a stream bed, sifting out the gold, and returning the material to the stream bed was
an “addition" of a "pollutant." Id. at 1285. The term “pollutant" encompassed "the materials
segregated from gold in placer mining." Id.
Our reasoning in Rybachek is similar to that of the Fourth Circuit in United States v.
Deaton, 209 F.3d 331 (4th Cir. 2000). In Deaton, a property owner alleged that the Corps
could not regulate "sidecasting," which is “the deposit of dredged or excavated material
from a wetland back into that same wetland." Id. at 334. The property owner asserted that
"sidecasting results in no net increase in the amount of material present in the wetland"
and therefore could not constitute the "addition of a pollutant." Id. at 335. The Fourth
Circuit squarely rejected this argument, in language that is worth quoting in full:
Contrary to what the Deatons suggest, the statute does not prohibit the addition of
material; it prohibits the "addition of any pollutant." The idea that there could be an
addition of a pollutant without an addition of material seems to us entirely
unremarkable, at least when an activity transforms some material from a
nonpollutant into a pollutant, as occurred here . . . . Once [earth and vegetable
matter] was removed [from the wetland], that material became "dredged spoil," a
statutory pollutant and a type of material that up until then was not present on the
Deaton property. It is of no consequence that what is now dredged spoil was
previously present on the same property in the less threatening form of dirt and
vegetation in an undisturbed state. What is important is that once that material was
excavated from the wetland, its redeposit in that same wetland added a pollutant
where none had been before.

190

Id. at 335-36. As the court concluded, "Congress determined that plain dirt, once
excavated from waters of the United States, could not be redeposited into those waters
without causing harm to the environment." Id. at 336; see also Avoyelles Sportsmen's
League, Inc. v. Marsh, 715 F.2d 897, 923 (5th Cir. 1983) (holding that the word "addition"
may be reasonably understood to include "redeposit").
These cases recognize that activities that destroy the ecology of a wetland are not
immune from the Clean Water Act merely because they do not involve the introduction of
material brought in from somewhere else. In this case, the Corps alleges that
Tsakopoulos has essentially poked a hole in the bottom of protected wetlands. That is,
by ripping up the bottom layer of soil, the water that was trapped can now drain out. While
it is true, that in so doing, no new material has been "added," a "pollutant" has certainly
been "added." Prior to the deep ripping, the protective layer of soil was intact, holding the
wetland in place. Afterwards, that soil was wrenched up, moved around, and redeposited
somewhere else. We can see no meaningful distinction between this activity and the
activities at issue in Rybachek and Deaton. We therefore conclude that deep ripping,
when undertaken in the context at issue here, can constitute a discharge of a pollutant
under the Clean Water Act.2
Tsakopoulos also contends that no case has ever held a plow to be a point source, and
that a prohibited discharge must be from a point source. This argument has no merit. The
statutory definition of "point source" ("any discernible, confined, and discrete
conveyance") is extremely broad, 33 U.S.C. §§ 1362(14), and courts have found that
“bulldozers and backhoes" can constitute "point sources,” Avoyelles, 715 F.2d at 922. In
this case, bulldozers and tractors were used to pull large metal prongs through the soil.
We can think of no reason why this combination would not satisfy the definition of a "point
source."
[The court also concluded that the deep ripping did not fit within the “normal farming
operations” exemption from the 404 permit requirements because the purpose of the
deep ripping was to “bring an area of the navigable waters into a use to which it was not
previously subject.” 33 U.S.C. § 1344(f)(2).]
***

2

National Mining Assoc. v. U.S. Army Corps of Eng'rs, 145 F.3d 1399 (D.C. Cir. 1998),
upon which Tsakopoulos heavily relies, does not persuade us to the contrary. That case
distinguished "regulable redeposits" from "incidental fallback." Id. at 1405. Here, the deep
ripping does not involve mere incidental fallback, but constitutes environmental damage
sufficient to constitute a regulable redeposit.
191

GOULD, Circuit Judge, dissenting:
I respectfully dissent. The crux of this case is that a farmer has plowed deeply to improve
his farm property to permit farming of fruit crops that require deep root systems, and are
more profitable than grazing or other prior farm use. Farmers have been altering and
transforming their crop land from the beginning of our nation, and indeed in colonial times.
Although I have no doubt that Congress could have reached and regulated the farming
activity challenged, that does not in itself show that Congress so exercised its power. I
conclude that the Clean Water Act does not prohibit "deep ripping" in this setting.
I would follow and extend National Mining Association v. U.S. Army Corps of Engineers,
145 F.3d 1399 (D.C. Cir. 1998), and hold that the return of soil in place after deep plowing
is not a "discharge of a pollutant." In National Mining, the court held that the Corps
exceeded its authority under section 404 of the Clean Water Act by regulating the
redeposit of dredged materials that incidentally fall back in the course of dredging
operations. The court explained that "the straightforward statutory term `addition' cannot
reasonably be said to encompass the situation in which material is removed from the
waters of the United States and a small portion of it happens to fall back." Id. at 1404.
The court rejected the agencies' primary argument that incidental fallback constitutes an
"addition" because once dredged the material becomes a pollutant:
Regardless of any legal metamorphosis that may occur at the moment of dredging,
we fail to see how there can be an addition of dredged material when there is no
addition of material. Although the Act includes "dredged spoil" in its list of
pollutants, Congress could not have contemplated that the attempted removal of
100 tons of that substance could constitute an addition simply because only 99
tons of it were actually taken away.
Id. at 1404 (emphasis omitted).
Those considerations are persuasive here as deep ripping does not involve any
significant removal or "addition" of material to the site. The ground is plowed and
transformed. It is true that the hydrological regime is modified, but Congress spoke in
terms of discharge or addition of pollutants, not in terms of change of the hydrological
nature of the soil. If Congress intends to prohibit so natural a farm activity as plowing, and
even the deep plowing that occurred here, Congress can and should be explicit. Although
we interpret the prohibitions of the Clean Water Act to effectuate Congressional intent, it
is an undue stretch for us, absent a more clear directive from Congress, to reach and
prohibit the plowing done here, which seems to be a traditional form of farming activity.
Rybachek v. United States Environmental Protection Agency, 904 F.2d 1276 (9th Cir.

192

1990), in my view, is distinguishable. In Rybachek, we held that placer mining, "a process
in which miners excavate dirt and gravel in and around waterways and, after extracting
the gold, discharge the left-over material back into the water," fell within the scope of
section 404 of the Clean Water Act. Id. at 1285. There, the Rybachek court identified the
regulable discharge as the discrete act of dumping leftover material into the stream after
it had been processed. Id. As the concurrence in National Mining makes clear, however,
"the word addition carries both a temporal and geographic ambiguity. If the material that
would otherwise fall back were moved some distance away and then dropped, it very well
might constitute an `addition.' Or if it were held for some time and then dropped back in
the same spot, it might also constitute an `addition.' “National Mining, 145 F.3d at 1410
(Silberman, J., concurring). Because deep ripping does not move any material to a
substantially different geographic location and does not process such material for any
period of time, Rybachek is not controlling.
Nor is the Fourth Circuit's opinion in United States v. Deaton, 209 F.3d 331 (4th Cir. 2000),
relied on by the majority, persuasive to me in the context presented. A farmer who plows
deeply is not, in my view, redepositing dredged or excavated materials. While the Fourth
Circuit relied on the fact that a "dredged spoil" is a statutory pollutant, the deep plowing
activity here, in my view, is not the same as dredging dirt from and redepositing it in
waters.
Questions and Comments
1.

The majority cites the Rybacheck and Deaton cases in support of its decision. Is it
relevant that those cases involved redeposit of material in a different place or at a
different time? Is it important that the court suggests that the soil is “dragged behind
the ripper”? The dissent refers to the “return of soil in place.”

2.

The majority adopts the transformation theory that Deaton adopted and National
Mining Association rejected. Is the ruling based on the text of the statute, legislative
history, or the purposes of the statute? On what does the dissent rely?

3.

On appeal, Tsakopoulos argued that the Corps had relied on RGL 96-02 to
determine that a permit was required for his deep ripping and that the guidance
was invalid because it was a substantive rule that was not adopted pursuant to
notice and comment rulemaking. The court declined to address the issue because
it was not addressed below. The district court did, however, determine that it was
not clear that the Corps relied on the guidance in determining that a permit was
required in the case. If the appellate court had addressed Tskopoulos’ challenge
to RGL 96-02, how might the court have ruled?

193

4.

On Tsakopoulos’ petition for certiorari, the Supreme Court agreed to review the
Ninth Circuit’s decision. Justice Kennedy, born and raised in Sacramento,
California, was a friend of Tsakopoulos, the Sacramento real estate developer, so
Kennedy did not participate in the case. Without his involvement, the Court split 44 and, therefore, affirmed the Ninth Circuit’s decision, which upheld the Corps’
jurisdiction over deep ripping. See Borden Ranch Partnership v. Army Corps of
Engineers, 537 U.S. 99 (2002).
Hypothetical
Jeremy and Casey Wright purchased an 80 acre tract of land in northern Minnesota near the
Saint Louis River. The Wrights planned to build a house on the property, but discovered that
60 acres of the property were wetlands that are regulated as “waters of the United States”
under the Clean Water Act. Rather than building the house on the 20 acres that are not
wetlands, Jeremy rented a backhoe and dug a ditch in the wetlands located on the western
portion of the property to drain those wetlands. Jeremy used most of the excavated material to
level an upland portion of the property where he planned to build a garage, but he placed some
of the excavated material in the wetlands located a few acres east of the ditch. In addition,
while he was digging the ditch, small amounts of the soil and vegetation that he was removing
from the wetlands spilled out of the bucket of the backhoe into the wetlands that he was
draining. After he completed construction of the ditch, a consultant that he retained to delineate
the wetlands on the property indicated that there were only 30 acres of wetlands on the
property, and that the wetlands were located on the portion of the property situated east of the
drainage ditch. Based on that information, Jeremy cleared 10 acres of the western portion of
the property that formerly were wetlands, re-graded the area, incorporating several hundred
cubic yards of dirt that he purchased from the Minnesota Sand and Gravel Company, and built
his new home on that portion of the property. Jeremy did not obtain a Section 404 permit for
any of his activities.
Should a permit have been required for (1) the construction of the drainage ditch; (2) the
placement of the excavated material in the wetlands east of the ditch; (3) the use of the
excavated materials to level the property for the garage; or (4) the placement of the dirt and
construction of the home on the western portion of the property?
Should a permit have been required for the construction of the drainage ditch if no soil or
vegetation spilled out of the backhoe bucket during the construction of the ditch?

194

Photo 27 By JW Randolph (Friend's work)
http://commons.wikimedia.org/wiki/File%3AMT
R1.jpg [Public domain]

Photo 24 By Roston (Own work)
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E.

Competing Permitting Programs - 404 versus 402 - What is Fill Material?

As noted in Chapter 4, there are two permit programs in the Clean Water Act that regulate
the addition of pollutants into the navigable waters. EPA administers the Section 402
permit program, which applies generally to point source discharges of pollutants into the
navigable waters, while the Corps administers the Section 404 permit program, which
applies to discharges of dredged or fill material into the navigable waters. More than 90%
of the activities regulated under the Section 404 permit program are authorized pursuant
to general permits and the Corps generally denies less than 1% of individual Section 404
permit applications. See Claudia Copeland, Wetlands: An Overview of Issues,
Congressional Research Service RL 33483 (July 12, 2010). Needless to say, EPA’s
Section 402 permit program is somewhat more demanding. Consequently, persons
engaging in activities that involve addition of pollutants into navigable waters have
frequently argued that, if their activities are regulated at all, they involve the discharge of
fill material and require a Section 404 permit rather than a Section 402 permit.
For many years, this issue was central to the controversy over the regulation of
mountaintop removal mining. Mountaintop removal mining is a surface mining practice
that involves removing the tops of mountains to expose coal seams that lie below the
mountaintops. See U.S. Environmental Protection Agency, Surface Coal Mining in
Appalachia, available at: Error! Hyperlink reference not valid.https://www.epa.gov/scmining To extract the coal, large amounts of rock and soil (called “spoils”) are removed
from the mountain. See Claudia Copeland, Mountaintop Mining: Background on Current
Controversies, Congressional Research Service RS21421 (Dec. 2, 2013) [hereinafter
“CRS Mountaintop Mining Report”] Although the Federal Surface Mining Control and
Reclamation Act (SMCRA) requires mining companies to return the spoils to the mined
area to return the area to its “approximate original contour” (AOC), 30 U.S.C. § 1265(b)(3),
it is normally impossible to do that with mountaintop removal mining because “broken
rock takes up more volume than did the rock prior to mining and because there are
stability concerns with the spoil pile.” CRS Mountaintop Mining Report, supra, at 1.
SMCRA includes a provision that provides for waiver of the AOC requirement in certain
circumstances, though, see 30 U.S.C. § 1265(c)(3), and, as a result, the spoils from
mountaintop removal are usually placed in “valley fills” on the sides of the mountains,
frequently burying streams in the valley below. See CRS Mountaintop Mining Report,
supra, at 1. The practice became very popular in the Appalachian region of the United
States in the 1990s. Id. Almost 1.2 million acres of land have been surface mined in the
Central Appalachian region and 500 mountains have been severely impacted or
destroyed by mountaintop mining in that region. See Appalachian Voices, Mountaintop
Removal 101.
Residents of the Appalachian region and environmentalists raised concerns about the
environmental impacts of mountaintop mining for years and, in a recent report, EPA

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concluded that mountaintop removal mining and valley fills have the following impacts:
(1) springs, and ephemeral, intermittent streams, and small perennial streams are
permanently lost with the removal of the mountain and from burial under fill,
(2) concentrations of major chemical ions are persistently elevated downstream,
(3) degraded water quality reaches levels that are acutely lethal to standard laboratory test
organisms,
(4) selenium (Se) concentrations are elevated, reaching concentrations that have caused toxic
effects in fish and birds, and
(5) macroinvertebrate and fish communities are consistently and significantly degraded.

See U.S. Environmental Protection Agency, The Effects of Mountaintop Mines and Valley
Fills on Aquatic Ecosystems of the Central Appalachian Coalfields 1 (EPA 600/R-09/138f)
(March 2011).
In the Clean Water Act context, residents of Appalachia and environmentalists argued
that the valley fills required Section 402 permits from EPA. The mining companies, on the
other hand, argued that the mining spoils that were being disposed of in the streams were
“fill material,” which could be authorized by the Corps of Engineers under Section 404.
As noted above, for many years, EPA and the Corps relied on different regulatory
definitions of “fill material.” The Corps’ 1977 regulation, which remained in place until
2002, defined “fill material” as “any material used for the primary purpose of replacing an
aquatic area with dry land or of changing the bottom elevation of a waterbody. The term
does not include any pollutant discharged into the water primarily to dispose of waste, as
that activity is regulated under Section 402.” See 42 Fed. Reg. 37,121, 37,145 (July 19,
1977). EPA’s regulations, on the other hand, at least since 1980, have focused on
whether materials have the “effect” of replacing water with dry land or changing the bottom
elevation of water, regardless of the “purpose” of the placement of the material. See 45
Fed. Reg. 33290, 33421 (May 19, 1980). Pursuant to the Corps’ regulations, opponents
of mountaintop mining argued that the purpose of the valley fills was waste disposal,
regulated by EPA under Section 402, while the mining companies argued that the valley
fills involved the discharge of fill material and were regulated under Section 404. In the
1990s, when mountaintop removal mining was becoming increasingly popular, the Corps
authorized most valley fills under a general permit, Nationwide Permit 21, instead of
requiring mining companies to obtain individual Section 404 permits. See 33 C.F.R.
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§ 330.5(a)(21) (1992).
In 1998, several environmental groups and concerned citizens sued the Corps, arguing
that valley fills should be regulated by EPA under the Section 402 permit program, rather
than under Section 404. See Bragg v. Robertson, 54 F. Supp. 2d. 635 (S.D. W.Va. 1999),
aff’d in part, vacated in part sub nom Bragg v. West Virginia Coal Ass’n, 248 F.3d 275 (4th
Cir. 2001). The Fourth Circuit did not resolve the question of whether Section 402 or 404
applied to the valley fills, but the case did result in some changes to the federal regulation
of valley fills. Pursuant to a partial settlement agreement of the case, the Corps agreed
to require companies to obtain individual permits, rather than rely on the agency’s
nationwide permit, for many of the larger valley fills, and the Corps agreed to prepare an
environmental impact statement on mountaintop removal mining and valley fills. 54 F.
Supp. 2d at 639. The Corps, along with EPA, the Fish and Wildlife Service, and the West
Virginia Department of Environmental Protection, completed the final environmental
impact statement in 2005. See U.S. Environmental Protection Agency, Final
Programmatic Environmental Impact Statement (PEIS) on Mountaintop Mining/Valley
Fills in Appalachia, EPA 903-R-05-002 (Oct. 2005).
Although the Fourth Circuit, in Bragg, did not resolve the question of whether Section 402
or 404 applied to valley fills, the court was faced with the question again a few years later
in the following case. Prior to the court’s decision, the Corps began the process of
amending its regulations to adopt a definition of “fill material” that mirrored EPA’s
definition and would define material as “fill material” if it had the effect of replacing a water
of the United States with dry land or of changing the bottom elevation of a water of the
United States. See 65 Fed. Reg. 21,292 (Apr. 20, 2000). In the proposal, EPA and the
Corps indicated that, prior to the proposal, the agencies generally agreed that valley fills
would be regulated under Section 404 and, while the proposal would change the Corps’
definition of “fill material,” it would not change the division of authority between the
agencies with regard to valley fills. Id. at 21,295. However, the action challenged in the
case was taken by the Corps under the existing Corps’ regulations, which defined “fill
material” in terms of the purpose for which the material was used.

198

Kentuckians for the
Commonwealth v.
Rivenburgh
317 F.3d 425 (4th Cir. 2003)
NIEMEYER, Circuit Judge:

Resources for the Case
Corps letter authorizing Beech Fork Mine under NWP 21
Unedited opinion (From Justia)
Google Map of all the cases in the coursebook
Videos of Mountaintop Removal from Appalachian Voices,
Smithsonian, and Discovery
Kentuckians for the Commonwealth web page

This appeal presents the issue of
whether the U.S. Army Corps of Engineers has authority under the Clean Water Act and
under its now-superseded 1977 regulation implementing the Act to issue permits for
valley fills in connection with mountaintop coal mining. It does not present the question of
whether mountaintop coal mining is useful, desirable, or wise.
Kentuckians for the Commonwealth, Inc., a nonprofit corporation formed to promote
"social justice and quality of life for all Kentuckians," commenced this action for
declaratory and injunctive relief to declare illegal the Corps' interpretation of the Clean
Water Act and to require the Corps to revoke the permit that it issued to Martin County
Coal Corporation under § 404 of the Act, authorizing Martin Coal to place excess
overburden from one of its coal mining projects into 27 valleys in Martin County, Kentucky.
On cross-motions for summary judgment, the district court "found and concluded" that "fill
material" as used in § 404 referred only to "material deposited for some beneficial primary
purpose," not for waste disposal, and therefore that the Corps' "approval of waste disposal
as fill material under § 404 [of the Clean Water Act] [was] ultra vires" and "beyond the
authority" of the Corps. Because Martin Coal's assignee of the permit, Beech Fork
Processing, Inc., proposed "to re-engineer [the] existing mine plan to place no spoil in
waters of the United States without a constructive primary purpose," the court found there
to be no "imminent probable irreparable injury" to Kentuckians for the Commonwealth.
The court determined that in the absence of injury, Kentuckians' application for injunctive
relief with regard to the Martin Coal authorization "must be denied." But on the basis of
its conclusion that the Corps acts ultra vires whenever it issues permits for valley fills
without a beneficial primary purpose, the district court entered a purely prospective
permanent injunction against the Corps. This injunction prohibits the Corps from "issuing
any further § 404 permits within the Huntington District [covering portions of five states]
that have no primary purpose or use but the disposal of waste," in particular, any permit
to create valley fills with the spoil of mountaintop coal mining for the sole purpose of waste
disposal.
Because we conclude that the Corps' practice of issuing § 404 permits, including the
permit to Martin Coal, to create valley fills with the spoil of mountaintop coal mining is not
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ultra vires under the Clean Water Act and that the injunction issued by the district court
was overbroad, we reverse the court's declaratory judgment; we vacate its injunction and
the memorandums and orders of May 8 and June 17, 2002; and we remand for further
proceedings not inconsistent with this opinion.
I.
Martin County Coal Corporation ("Martin Coal"), having obtained a mining permit from the
Commonwealth of Kentucky in November 1999 to undertake a surface mining project in
Martin County, Kentucky, applied to the U.S. Army Corps of Engineers ("the Corps") for
authorization under § 404 of the Clean Water Act and under the Corps' Nationwide Permit
21 ("NWP 21") "to construct hollow fills and sediment ponds in waters of the United
States" in connection with the proposed mining project. On June 20, 2000, the Corps
"authorized" Martin Coal's project, permitting it to place mining-operations "spoil" from
"excess overburden" in 27 valleys, filling about 6.3 miles of streams. "Overburden" is the
soil and rock that overlies a coal seam, and overburden that is excavated and removed
is "spoil." In connection with surface mining operations in mountains where the mine
operator must return the mountains to their approximate original contour, the spoil is
placed temporarily in valleys while the coal is removed from the seam and then returned
to the mining location. However, because spoil takes up more space than did the original
overburden, all surface mining creates excess spoil that must be placed somewhere. The
permit in this case authorized Martin Coal to create 27 valley fills with the excess spoil,
which in turn would bury some 6.3 miles of streams at the heads of the valleys.
The Corps' exercise of authority under NWP 21 to permit the creation of valley fills in
connection with mining operations was consistent with its past practices and with the
understanding of the Corps and the EPA as to how the Clean Water Act divides
responsibility for its administration. While court cases have, over the years, evinced
confusion over that division based on the agencies' differing approaches to defining "fill
material" in their regulations, see, e.g., Resource Investments, Inc. v. U.S. Army Corps of
Eng'rs, 151 F.3d 1162 (9th Cir.1998); Avoyelles Sportsmen's League v. Marsh, 715 F.2d
897 (5th Cir.1983), the Corps and the EPA have in fact exercised their authority
consistently in interpreting the Clean Water Act to give the Corps authority to issue
permits for the creation of valley fills in connection with surface coal mining activities.
At the time that the Corps issued its authorization to Martin Coal in this case, it had already
published notice, together with the EPA, of their intent to amend their regulations to
resolve ambiguities in both agencies' regulatory definitions of "fill material" and to clarify
the division of authority between the two agencies. As the Corps and the EPA stated in
the public notice of the intended amendments, issued on April 20, 2000:
With regard to proposed discharges of coal mining overburden, we believe that the

200

placement of such material into waters of the U.S. has the effect of fill and
therefore, should be regulated under CWA section 404. This approach is
consistent with existing practice and the existing EPA definition of the term "fill
material." In Appalachia in particular, such discharges typically result in the
placement of rock and other material in the heads of valleys, with a sedimentation
pond located downstream of this "valley fill." This has required authorization under
CWA section 404 for the discharges of fill material into waters of the U.S., including
the overburden and coal refuse, as well as the berms, or dams, associated with
the sedimentation ponds. The effect of these discharges is to replace portions of
a water body with dry land. Therefore, today's proposal makes clear that such
material is to be regulated under CWA section 404.
65 Fed. Reg. 21,292, 21,295 (Apr. 20, 2000). This public notice also pointed out that the
EPA would, in connection with coal mining activities, continue to regulate "effluent
discharged into waters of the U.S. from sedimentation ponds," pursuant to § 402 of the
Clean Water Act. Id. at 21,296.
In August 2001, Kentuckians for the Commonwealth, Inc. ("Kentuckians"), commenced
this action against the Corps under the Administrative Procedure Act ("APA"), challenging
the Corps' action in issuing the June 20, 2000 permit to Martin Coal to create 27 valley
fills and to bury 6.3 miles of streams. * * * In support of their request for declaratory and
injunctive relief, Kentuckians alleged that the Corps had violated § 404 of the Clean Water
Act as well as its own regulations and had "acted in a manner that is arbitrary, capricious,
an abuse of discretion, and otherwise contrary to law, in violation of the APA, 5 U.S.C. §
706(2)." Kentuckians asked the court to "[d]eclare that Defendants' June 20, 2000
decision granting authorization under NWP 21 to [Martin Coal] is contrary to Section 404
of the CWA and its implementing regulations ... in violation of the APA," and to "[i]ssue
an order requiring Defendants to revoke [Martin Coal's] authorization under NWP 21 or,
in the alternative, to suspend that authorization pending completion of EPA's Section
404(c) proceeding and/or unless and until Defendants comply with their obligations herein
under the APA, CWA, and NEPA [National Environmental Policy Act]." * * *
[O]n May 8, 2002, the district court ruled on the pending cross-motions for summary
judgment, concluding that the efforts of the Corps and the EPA, as well as their past
applications of § 404, were inconsistent with the Clean Water Act. Kentuckians for the
Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927 (S.D.W.Va.2002). The court
declared that "fill material" as used in § 404 of the Clean Water Act "refers to material
deposited for some beneficial primary purpose: for construction work, infrastructure,
improvement and development in waters of the United States, not waste material
discharged solely to dispose of waste." Accordingly, the court declared that the Corps'
"approval of a waste disposal as fill material under § 404 is ultra vires, that is, beyond the
authority of either [the Corps or the EPA]." * * *

201

Although the court refused to grant Kentuckians' motion for an injunction requiring the
Corps to revoke its permit to Martin Coal because Martin Coal's assignee was prepared
to reengineer the project so as not to create valley fills of waste material,* * * it issued a
permanent injunction against the Corps prohibiting it from issuing "any further § 404
permits that have no primary purpose or use but the disposal of waste." As the court
restated its order, it enjoined the issuance of "mountaintop removal overburden valley fill
permits solely for waste disposal under § 404." The court did not, however, strike down
the New Rule, as no party had challenged it. But it declared the New Rule to be ultra
vires: * * *
The district court issued a revised memorandum and order dated June 17, 2002, in which
it stated that the injunction did not have nationwide application; rather, it prohibited the
Corps from issuing § 404 permits "from their ordinary place of business, the Huntington
District," which the court stated would have "substantial national impact" because 97% of
"stream length affected by valley fills in the nation" was approved in the Huntington District
in 2000. Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 206 F. Supp. 2d 782
(S.D. W.Va.2002). The court also stated that the injunction did not enjoin the New Rule,
33 C.F.R. § 323.2 (2002). The court repeated, however, its declaration that the New Rule
was "inconsistent with the statutory scheme, and therefore ultra vires." * * *
[In Part II of the opinion, the court concluded that the injunction issued by the district court
was overbroad and the court vacated the injunction.]
III
[At the beginning of Part III of the opinion, the court discussed which parts of the district
court’s opinion were dicta and which parts would be reviewed on appeal.]
***
The judgment of the district court, as contained in its two orders of May 8 and June 17,
2002, and the positions of the parties thus bring us to the single question whether § 404
of the Clean Water Act, in providing that the Corps "may issue permits... for the discharge
of dredged or fill material into navigable waters," authorizes the Corps to issue permits
for the creation of valley fills in connection with coal mining activities, when the valley fills
serve no purpose other than to dispose of excess overburden from the mining activity.
This question is presented particularly in Kentuckians' challenge of the Corps' action in
issuing the permit to Martin Coal.

202

B
When reviewing a particular agency action challenged under § 706(2) of the APA, "[t]he
court is first required to decide whether the [agency] acted within the scope of [its]
authority." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). The first
step in this analysis is an examination of the statute providing authority for the agency to
act. As the Supreme Court explained in NationsBank of North Carolina, N.A. v. Variable
Annuity Life Ins. Co., 513 U.S. 251, 257 (1995):
[W]hen we confront an expert administrator's statutory exposition, we inquire first
whether "the intent of Congress is clear" as to "the precise question at issue."
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842 (1984). If so, "that is the end of the matter" Ibid. But "if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether
the agency's answer is based on a permissible construction of the statute." Id. at
843. If the administrator's reading fills a gap or defines a term in a way that is
reasonable in light of the legislature's revealed design, we give the administrator's
judgment "controlling weight." Id. at 844.
This analytical approach applies not only when a regulation is directly challenged, as in
Chevron, but also when a particular agency action is challenged, as in NationsBank.
Moreover, when an agency acts pursuant to a regulation, a reviewing court must, if there
is any dispute about the meaning of the regulation, interpret the meaning of the regulation
to determine whether the agency's action is consistent with the regulation. The reviewing
court does not have much leeway in undertaking this interpretation, however, because
the agency is entitled to interpret its own regulation and the agency's interpretation is
"controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins,
519 U.S. 452, 461 (1997) (internal quotation marks and citation omitted). This
requirement of binding deference to agency interpretations of their own regulations,
unless "plainly erroneous or inconsistent with the regulation," is known as Seminole Rock
deference, having first been articulated in Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 414 (1945).
Finally, if there is any question whether an agency action taken pursuant to a regulation
exceeds the agency's statutory authority, the statutory inquiry under Chevron step one
(whether the intent of Congress is clear) must take place prior to interpreting the agency's
own regulation. This ordering is a function of the Chevron test itself: If Congress has
spoken clearly to the issue, then the regulation is inapplicable. See Chevron U.S.A. Inc.
v. Echazabal, 536 U.S. 73 (2002) (applying an analytical approach by which the validity
of an action taken in reliance a regulation depends, in the first instance, on whether the

203

regulation itself exceeds the issuing agency's statutory authority); see also John F.
Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of
Agency Rules, 96 Colum. L. Rev. 612, 627 n.78 (1996) ("It is important to note that
because a regulation must be consistent with the statute it implements, any interpretation
of a regulation naturally must accord with the statute as well.... [T]o get to Seminole Rock
deference, a court must first address the straightforward Chevron question whether an
agency regulation, as interpreted, violates the statute. Seminole Rock addresses the
further question whether the agency's interpretation is consistent with the regulation").
C
In this case the Corps contends that "[t]he district court erred as a matter of law in holding
that the Corps lacks authority under CWA Section 404 to regulate as `fill material' the
discharge of excess spoil from surface coal mining into waters of the United States." * * *
It notes that Congress did not define "fill material" and left that to the agencies charged
with administering § 404. It concludes that the practice followed by it and by the EPA over
the years is "a permissible one entitled to deference" under Chevron. It claims that the
new dual-agency construction in the New Rule reflects the agencies' past practices and
"falls easily within the most obvious reading of the term `fill material,'" and is consistent
with the statutory scheme and purposes of the Clean Water Act.
***
Kentuckians contends that "[t]he district court correctly held that the Corps lacks authority
under § 404 of the Clean Water Act to allow the filling of waters of the United States solely
for waste disposal," but Kentuckians asserts that it "reaches that conclusion on grounds
that differ, in part, from those relied on by the district court." Although Kentuckians agrees
that "fill material" has not been defined in the Clean Water Act, it argues that Congress'
intent is clear from the context of the Clean Water Act and that Congress did not mean
for any provision of the Act to permit the Corps to "evade the water quality standards"
mandated by the Act. Kentuckians asserts that to construe "fill material" in any way other
than that given by the district court would violate the clear intent of the Clean Water Act
"to restore and maintain the chemical, physical and biological integrity of the nation's
waters." 33 U.S.C. § 1251(a). Kentuckians contends alternatively that even if the Act is
ambiguous, the Corps' interpretation is unreasonable and impermissible because
"[e]vasion of a statute's core mandate and purpose can scarcely be considered a
`reasonable' interpretation." Finally, Kentuckians asserts that the Corps' interpretation is
internally inconsistent because the Corps' construction gives it authority over "mining
waste, but excludes trash and garbage." It argues that such a construction produces an
absurd result because the burial of a stream by mining waste is "much more devastating"
than degradation of water by trash or garbage.

204

As with any issue of statutory interpretation, we begin with the language of the statute. If
congressional intent is clear from application of "traditional tools of statutory construction,"
Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 161 (4th Cir.1998), aff'd, 529
U.S. 120 (2000), "that is the end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress," Chevron, 467 U.S. at
842-43. "[I]f the statute is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is based on a permissible
construction of the statute." Id. at 843.
Because the Clean Water Act does not define "fill material," nor does it suggest on its
face the limitation of "fill material" found by the district court, the statute is silent on the
issue before us, and such silence "normally creates ambiguity. It does not resolve it."
Barnhart v. Walton, 535 U.S. 212 (2002); see also Piney Run Preservation Ass'n v.
County Comm'rs, 268 F.3d 255, 267 (4th Cir.2001) * * *
The district court concluded, however, that its facial interpretation -- that a permit issued
under § 404 can only authorize the discharge of fill material into navigable waters "for
some beneficial primary purpose... not waste material discharged solely to dispose of
waste" -- was supported by § 404(f)(2) of the Clean Water Act, by the Act's succession to
the Rivers and Harbors Act, and by the Act's relation to the Surface Mining Control and
Reclamation Act ("SMCRA"). We examine each of these to determine whether any
unambiguously indicates a clear congressional intent with respect to the definition of "fill
material" as used in § 404(a). * * *
[The court then examined, and rejected, each of those findings of the district court and
disagreed with the district court’s conclusion that the statutory language was clear.]
The district court’s application of traditional tools of statutory construction thus could not
leave it with a clear congressional intent that the undefined term “fill material” as used in
§ 404 means material deposited for a beneficial primary purpose. Indeed, the lack of
clarity in the term itself prompted the agencies to undertake efforts to develop the term’s
meaning from the context of the permit programs and the interrelationship between § 402
permits and § 404 permits. While the statute authorizes the EPA to issue permits “for the
discharge of any pollutant,” defining “pollutant” to include “rock, sand, dirt and industrial,
municipal and agricultural waste,” 33 U.S.C. § 1362(6), the EPA is not authorized to issue
a permit for “fill material,” 33 U.S.C. § 1342(a)(1). Yet, when a permit is issued by the
Corps under § 404 for the discharge of fill material that has a substantive adverse effect
on municipal waters, fish, and wildlife, the EPA can veto the Corps’ permit. 33 U.S.C.
§ 1344 (c). The statute’s silence on the definition of “fill material” thus gives rise to
ambiguity, particularly when a broad definition of “fill material” is employed.
Based on our de novo review of whether Congress has spoken clearly on the meaning of

205

"fill material," see Holland v. Pardee Coal Co., 269 F.3d 424, 430 (4th Cir. 2001) (holding
that an issue of statutory construction is a "pure question of law" subject to de novo
review), we conclude that Congress has not clearly spoken on the meaning of "fill
material" and, in particular, has not clearly defined "fill material to be material deposited
for some beneficial primary purpose." Accordingly, we proceed into Chevron step-two
analysis to determine whether the Corps' action is based on a permissible construction of
§ 404. See Capitol Mortgage Bankers, Inc. v. Cuomo, 222 F.3d 151, 155 (4th Cir.2000)
(determining that the district court's Chevron step-one holding was incorrect and stating
that "[w]e must therefore proceed to the second step of the Chevron analysis and
consider, with deference to [the agency's] expertise in this area, whether the agency's
interpretation of the statute ... is based on a permissible construction of the statute").
D
Although the district court rested its holding principally on a statutory interpretation of the
Clean Water Act under Chevron step one, concluding that "§ 404 is neither silent nor
ambiguous on the issue of § 404 fills and their purposes," it addressed alternatively, albeit
conclusorily, the reasonableness of the Corps' interpretation of the statute under Chevron
step two. The court stated that its "examination of the legislative and regulatory history,
interagency agreements, and related statutes demonstrates any interpretation of § 404
fill material that ignores and deliberately eliminates the primary purpose test for fill
authorization is contrary to the purpose, principles, and policy of the CWA. [Citation
omitted]. Such an agency interpretation is not permissible." The court thus reiterated the
conclusion it reached in its Chevron step-one analysis, and its Chevron step-two analysis
did not give any deference to the agency's interpretation of this regulation nor did it explain
why such deference would be inappropriate.
Because the agency action at issue in this case was taken at a time when the Corps'
1977 Regulation was in effect, the appropriate inquiry under Chevron step two is whether
that regulation, as interpreted by the Corps, is based on a permissible reading of the
Clean Water Act, and, if so, whether the agency acted consistently with the regulation in
issuing a permit to Mountain Coal to create valley fills in connection with coal mining
activities.
The Corps' 1977 Regulation defines "fill material" as "any material used for the primary
purpose of replacing an aquatic area with dry land or of changing the bottom elevation of
a[] waterbody." 33 C.F.R. 323.2(e) (2001). The regulation provides further that "[t]he term
does not include any pollutant discharged into the water primarily to dispose of waste, as
that activity is regulated under section 402 of the Clean Water Act." Id. At the time when
this 1977 Regulation was promulgated, the Corps, explaining the "waste" exclusion,
stated that in its experience:

206

several industrial and municipal discharges of solid waste materials have been
brought to our attention which technically fit within our definition of "fill material" but
which are intended to be regulated under the NPDES program [i.e., the EPA's
program created under § 402]. These include the disposal of waste materials such
as sludge, garbage, trash, and debris in water.
***
The Corps and the Environmental Protection Agency feel that the initial decision
relating to this type of discharge should be through the NPDES program.
42 Fed. Reg. 37,122, 37,130 (July 19, 1977).
To demonstrate that the Corps' understanding of its authority to issue permits for valley
fills was based on a longstanding division of authority between the Corps and the EPA
that reflected the interpretations of both agencies with regard to their respective regulatory
authority under the Clean Water Act, the Corps submitted to the district court over 120
pages of correspondence with the EPA and with regulated parties addressing valley fill
permits issued under Section 404. This correspondence, which spans approximately ten
years from 1990 through 2000, includes actual permit grants, EPA objections to Corps
actions, and evaluations by the Corps and the EPA of mitigation plans. To the extent that
this correspondence reveals any disputes about the Corps' exercise of its permitting
authority, these disputes focus on whether the impact of a particular valley fill would be
more than minimal, thus requiring the issuance of an individual permit rather than
authorization under a nationwide permit. The basic division of authority, including the
Corps' authority to issue valley fill permits, is apparent throughout this record of both
agencies' practices. The Corps also submitted the affidavit of Michael B. Cook, the
director of EPA's Office of Wastewater Management in Washington, D.C. since 1991.
According to Mr. Cook:
While the effluent guidelines address certain discharges of pollutants associated
with coal mining operations (e.g., coal preparation plants and mine drainage), the
regulations do not address discharges of soil, rock and vegetation (i.e.,
overburden) that is excavated in order to access coal reserves and then placed in
waters of the United States, as in the case of valley fills. To our knowledge, such
discharges have only been authorized by permits issued under section 404 of the
CWA by the Army Corps of Engineers.
In short, the evidence submitted to the district court revealed a longstanding and
consistent division of authority between the Corps and the EPA with regard to the
issuance of permits under CWA Section 402 and CWA Section 404.

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Moreover, when the Corps issued the permit to Martin Coal on June 20, 2000, it continued
to operate with an understanding that it was authorized to regulate discharges of fill, even
for waste, unless the fill amounted to effluent that could be subjected to effluent
limitations. It certainly did not interpret its own 1977 Regulation to impose a beneficial
primary purpose requirement. This is evidenced by its public notice given on April 17,
2000, two months prior to the issuance of the permit at issue in this action, when the
Corps joined with the EPA to propose a joint rule that would "not alter current practice,"
but rather was "intended to clarify what constitutes `fill material' subject to CWA section
404." 65 Fed. Reg. at 21,292. The Corps and the EPA recognized that some courts had
interpreted the Corps' regulation to impose a primary-purpose test applied without regard
to the traditional division of authority between the Corps and the EPA, and that the
ambiguities of this test had caused confusion. As one specific example of this confusion,
the Corps and the EPA pointed to dicta in an opinion issued by the district court in an
earlier valley-fill case in which the district court determined that "the Corps lacked
authority to regulate under CWA section 404 the placement into waters of the U.S. of
rock, sand, and earth overburden from coal surface mining operations, because the
`primary purpose' of the discharge was waste disposal." Id. at 21,295. Disclaiming any
interpretation of the Corps' 1977 Regulation that would strip the Corps of authority to issue
§ 404 permits for valley fills, the Corps and the EPA described what they understood the
appropriate division of labor to be:
The section 402 program is focused on (although not limited to) discharges such
as wastewater discharges from industrial operations and sewage treatment plants,
stormwater and the like.... Pollutant discharges are controlled under the section
402 program principally through the imposition of effluent limitations, which are
restrictions on the "quantities, rates, and concentrations of chemical, physical,
biological and other constituents which are discharged from point sources into
navigable waters".... There are no statutory or regulatory provisions under the
section 402 program designed to address discharges that convert waters of the
U.S. to dry land.
***
[S]ection 404 focuses exclusively on two materials: dredged material and fill
material. The term "fill material" clearly contemplates material that fills in a water
body, and thereby converts it to dry land or changes the bottom elevation. Fill
material differs fundamentally from the types of pollutants covered by section 402
because the principal environmental concern is the loss of a portion of the water
body itself. For this reason, the section 404 permitting process focuses on different
considerations than the section 402 permitting program.
Id. at 21,293.

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This contemporaneous explanation by the two agencies charged with the responsibility
of administering the Clean Water Act provides a rational interpretation of the 1977
Regulation that is neither plainly erroneous nor inconsistent with the text of the regulation.
The 1977 Regulation seeks to divide the statutory responsibilities between the agencies
charged with different responsibilities by defining "fill material" that is subject to regulation
by the Corps and "waste" that is subject to regulation by the EPA through the
administration of effluent limitations. Moreover, the resolution among agencies of the line
dividing their responsibilities is just the type of agency action to which the courts must
defer. See Echazabal, 122 S. Ct. at 2052 (noting that the EEOC's resolution of a tension
between the Americans with Disabilities Act and the Occupational Safety and Health Act
"exemplifies the substantive choices that agencies are expected to make when Congress
leaves the intersection of competing objectives both imprecisely marked and subject to
administrative leeway").
A reviewing court can set aside the agency's interpretation of its own regulation only if
that interpretation is "plainly erroneous or inconsistent with the regulation." Auer, 519 U.S.
at 461 (internal quotation marks and citation omitted). When we examine the Corps' 1977
Regulation and its interpretations of that regulation, we conclude that the Corps'
interpretations of the 1977 Regulation -- made both by interpretations published in the
Federal Register and by its application of that regulation in issuing permits -- were neither
plainly erroneous nor inconsistent with the text of the regulation.
We next determine whether the 1977 Regulation itself, as construed by both the Corps
and the EPA, was also a permissible reading of the Clean Water Act.
The stated goal of the Clean Water Act is "to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To that end, the
Clean Water Act prohibits discharges of pollutants into the waters of the United States,
except in compliance with a permit issued by one of the permit regimes established by
the Act. 33 U.S.C. § 1311(a). Two principal regimes are created in §§ 402 and 404 of the
Act. Section 402 creates a permit program under the National Pollutant Discharge
Elimination System, a combination of State and EPA regulatory activities that is
administered by the EPA. Section 404 creates a permit program administered by the
Corps, authorizing the Corps to issue permits only in connection with the "discharge of
dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C.
§ 1344(a). The two sections are linked by cross-references, exclusions, and vetoes.
Section 402 authorizes the EPA to issue permits for the discharge of any pollutant or
combination of pollutants, except as provided in § 404. And § 404 in turn provides that
the Corps may issue permits for the limited discharges relating to dredged or fill material,
providing that the Corps' permits are always subject to the veto power of the EPA when
the dredged or fill material would have "an unacceptable adverse effect on municipal
water supplies, shellfish beds and fishery areas ... wildlife, or recreational areas." 33

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U.S.C. § 1344(c). Thus, a § 404 permit is always subject to the EPA's determination that
a discharge will have an "unacceptable adverse effect" on certain specified waters,
reinforcing the fill-effluent distinction that has been followed by the agencies.
Because the Clean Water Act clearly intended to divide functions between the Corps and
the EPA based on the type of discharge involved, we conclude that it was consistent with
the Act for the Corps to have adopted its 1977 Regulation defining "fill material" to be
any material used for the primary purpose of replacing an aquatic area with dry
land or of changing the bottom elevation of a water body. The term does not include
any pollutant discharged into the water primarily to dispose of waste, as that
activity is regulated under Section 402 of the Clean Water Act.
33 C.F.R. § 323.2(e) (2001). The first sentence of this regulation adopts an inclusive test
that focuses on the purposeful displacement of water with solid material. The second
sentence provides, as construed by the agencies, an exclusion which defers to the EPA's
authority to regulate "waste." Because it was not plainly erroneous or inconsistent with
the regulation for the Corps to have asserted that its use of the term "waste" in the 1977
Regulation was not intended to defer to the EPA on all material deposited for disposal,
as we have already concluded, we read the 1977 Regulation to include that interpretation
and, as so interpreted, conclude that the 1977 Regulation was a rational interpretation of
the Clean Water Act. Section 404 confers on the Corps all responsibility to issue permits
for the discharges of "fill material," but it gives the EPA a veto when those discharges
might adversely affect the quality of certain waters. Section 402 confers on the EPA
responsibility to regulate the discharge of pollutants into waters under mechanisms to
administer effluent limitations. The two authorizations might overlap on certain types of
"fill material" that adversely affect the quality of water, and the 1977 Regulation, as
interpreted by the Corps, reasonably addresses this potential ambiguity.
In sum, we conclude that the Corps' interpretation of "fill material" as used in § 404 of the
Clean Water Act to mean all material that displaces water or changes the bottom elevation
of a water body except for "waste" -- meaning garbage, sewage, and effluent that could
be regulated by ongoing effluent limitations as described in § 402 -- is a permissible
construction of § 404. And as an interpretation of its 1977 Regulation, it is neither plainly
erroneous nor inconsistent with the text of the regulation.
The Corps' issuance of the permit to Martin Coal on June 20, 2000, therefore, was not
arbitrary, capricious, an abuse of discretion, or otherwise contrary to law insofar as
Kentuckians alleged in Count I of the complaint. On this issue, we reverse the judgment
of the district court.

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Questions and Comments
1.

This case involved a question of whether the 1977 Corps regulatory definition of
“fill material” was authorized by the Clean Water Act and whether the Corps’
interpretation of that regulation was appropriate. As in the Supreme Court’s
Riverside Bayview Homes case, the Fourth Circuit noted, in this case, that the
Chevron analysis applied to the first question, while the Auer analysis applied to
the second question. The order in which the court addressed those questions,
though, is a bit unorthodox. The court begins the opinion with a focus on Chevron
step 1, moves to Auer, then returns to Chevron step 2. Why might the court have
structured the opinion in that manner?

2.

Chevron: Although the district court determined that the Clean Water Act was
clear and did not authorize the Corps to regulate valley fills as “fill material,” the
appellate court concluded that the statute is ambiguous, so the agency’s
interpretation is entitled to deference at Chevron step 2. At Chevron step 1, the
appellate court seems to focus solely on the text of the statute to find that the Clean
Water Act is ambiguous with regard to whether “fill material” means “material
deposited for some primary beneficial purpose.” On what basis, then, does it
conclude, at Chevron step 2, that the Corps’ interpretation of the statute (rather
than the regulation) is reasonable? Has the court set the Chevron bar very high?

3.

Kentuckians for the Commonwealth argued that permits issued under Section 402
of the Clean Water Act incorporate standards to protect water quality that are not
included in Section 404 permits, and that the Corps could not define “fill material”
in a way that would include valley fills because such a regulation would evade the
implementation of those standards and violate the water quality protection
purposes of the statute. Does the appellate court address that argument or focus
on those purposes of the statute in interpreting it? A regulation that defined “fill
material” to be limited to materials primarily used for a beneficial purpose would
seem to advance that purpose.

4.

Auer: When will an agency’s interpretation of its regulations be “plainly erroneous
or inconsistent with the regulation” under Auer? The Corps’ regulations provided
that “fill material” “does not include any pollutant discharged into the water primarily
to dispose of waste.” Regardless of the long-standing nature of the Corps and
EPA’s interpretation of the Corps’ regulation, is there any purpose for the disposal
of the mining spoils in the valley other than waste disposal?

5.

The district court also concluded that the rule that the Corps proposed in 2000 to
redefine “fill material” (the “new rule”) was outside of the agency’s authority. Why

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do you think that the appellate court vacated that determination without much
discussion?
6.

After the case was decided, the Corps finalized the “new rule” mentioned in the
case and adopted EPA’s definition of “fill material,” which is based on the “effect”
of the placement of material, rather than its purpose. See 33 C.F.R. § 323.2. Under
the new regulation, it is certainly easier to argue that “valley fills” have the “effect”
of changing the bottom elevation of waters of the United States or replacing a
portion of the waters of the United States with dry land, regardless of their purpose.
Thus, the Corps’ interpretation of the new rule would clearly seem to be entitled to
Auer deference. Could the new rule still be challenged as beyond the Corps’
statutory authority, though? Would such a challenge likely be successful in the
Fourth Circuit?

7.

Scope of Injunction: The injunction issued by the district court was a regional
injunction, rather than a national injunction. Note, however, that the appellate court
pointed out that activities authorized by one district office of the Corps of Engineers
in Kentucky accounted for 97% of the stream length affected by valley fills in the
nation in 2000.

8.

Environmental Justice: Note that the plaintiff, Kentuckians for the
Commonwealth, is described in the opinion as “a nonprofit corporation formed to
promote ‘social justice and quality of life for all Kentuckians.” Numerous studies
over several decades have demonstrated that low income and minority
communities are disparately impacted by pollution. See Stephen M. Johnson,
Economics v. Equity: Do Market-Based Environmental Reforms Exacerbate
Environmental Injustice?, 56 Wash. & Lee L. Rev. 111, 117 (1999). The
mountaintop removal mining issue is another example of this trend. See Patrick
McGinley, Collateral Damage: Turning a Blind Eye to Environmental and Social
Injustice in the Coalfields, 19 J. Envtl. & Sustainability L. 305 (2013). The
Appalachia region, where most mountaintop removal mining takes place, is one of
the poorest regions in the country. See e.g. Appalachian Regional Commission,
Economic Overview of Appalachia - 2011 (per capita income in Appalachia is 18%
lower than the national average). As Professor Patrick McGinley notes, “After a
century of mining in the ‘billion dollar coalfields’, local communities lack funds to
upgrade aging schools, tens of thousands live below the federal ‘poverty line’; and
public services such as fire, police, sewage treatment, and libraries struggle to
survive . . .” Patrick C. McGinley, From Pick & Shovel to Mountaintop Removal:
Environmental Injustice in the Appalachian Coalfields, 34 Envir. L. 21, 23 (2004).
Because of the implementation of new technologies and practices like mountaintop
removal mining, mining employment decreased in Kentucky by two thirds between
1980 and 2006, although production from the mines decreased only slightly. See

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Kentuckians for the Commonwealth, How Does Mountaintop Removal Affect the
Economy? Perhaps these factors played some role in the court’s statement at the
outset of the opinion that the case “does not present the question of whether
mountaintop coal mining is useful, desirable, or wise.”
9.

More Resources: Additional information about mountaintop removal mining is
available on the websites of EPA, NRDC, Sierra Club, Earthjustice, Appalachian
Voices, and Kentuckians for the Commonwealth.

10.

Post-Script: After another Fourth Circuit ruling in 2009, Ohio Valley Environmental
Coalition v. Aracoma Coal Company, 556 F.3d 1777 (4th Cir. 2009), in which the
court rejected challenges that the Corps violated the National Environmental Policy
Act and acted arbitrarily in approving four valley fill permits, EPA announced that
it would review all pending surface coal mining permit requests in Appalachia
pursuant to its authority under Section 404 to review and comment on permits
issued by the Corps. In June, 2009, EPA, the Corps and the Department of Interior
signed a Memorandum of Understanding that established a series of actions to
reduce the environmental impacts of mountaintop mining. See Memorandum of
Understanding among the U.S. Department of the Army, U.S. Department of the
Interior, and U.S. Environmental Protection Agency Implementing the Interagency
Action Plan on Appalachian Surface Coal Mining (June 11, 2009). As part of the
action plan in that MOU, EPA and the Corps began using an Enhanced
Coordination Procedure (“ECP”) for evaluating 79 coal mining permits that EPA
identified for additional environmental review. See CRS Mountaintop Mining
Report, supra at 6. Coal companies complained that the process significantly
delayed permit decisions and they challenged the ECP in court. In National Mining
Association v. Jackson, 816 F. Supp. 2d 37 (D.D.C. 2011), the United States
District Court for the District of Columbia held that the ECP unlawfully transferred
Clean Water act authority from the Corps to EPA. Although the court set aside the
ECP, EPA and the Corps subsequently issued memoranda to the field reminding
staff that the agencies should coordinate their review of mining permits in
accordance with existing agency regulations. See Nancy Stoner, Acting Assistant
Administrator, U.S. Environmental Protection Agency, Office of Water, Transmittal
of Department of the Army Memo on “Decision in National Mining Association et
al. v. Jackson, et al”. The D.C. Circuit later overturned the decision of the district
court and upheld the ECP. See National Mining Association v. McCarthy, No. 125310 (D.C. Cir. July 11, 2014). EPA’s role in the 404 permitting process is
discussed in detail in Chapter 6 of this book.
In addition to the litigation discussed above, mountaintop removal mining has
spurred litigation focusing on the appropriate scope of coverage of nationwide
permits and EPA’s authority to veto Section 404 permits. Those cases, and the

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underlying controversies, will be explored in detail in Chapters 6 (Permits) and 8
(EPA Vetoes).
11.

Landfills: When the Corps amended its regulatory definition of fill material, it
included a non-exclusive list of materials that met the definition (rock, sand, soil,
clay, plastics, construction debris, wood chips, overburden from mining or other
excavation activities, and materials used to create any structure or infrastructure
in the waters of the United States) and specifically provided that the term “does not
include trash or garbage.” See 33 C.F.R. § 323.2. In addition, in the preamble to
the rule, the agency indicated that fill material used to create liners, berms and
other infrastructure associated with solid waste landfills would be regulated as fill
material under Section 404, rather than under section 402. See 67 Fed. Reg.
31129, 31134 (May 9, 2002).

Interview
Professor Pat McGinley, Charles H. Haden II Professor of Law at
West Virginia College of Law and frequent mountaintop removal
mining litigator discusses:
•
•
•
•
•
•

The history of mountaintop removal mining (YouTube)
Valley fills and their environmental impacts (YouTube)
Other impacts of mountaintop removal mining (YouTube)
Benefits to communities from mountaintop removal mining
(YouTube)
The environmental justice impacts of mountaintop removal
mining (YouTube)
Representing communities affected by mountaintop removal
mining (YouTube).

While there has been significant litigation surrounding mountaintop removal mining, more
traditional mining activities have also spawned Section 404 litigation. In 2004, Coeur
Mining sought to reopen the Kensington Mine, located near the Tongass National Forest
in Alaska, which had ceased operations in 1928. As noted above, EPA and the Corps
regulate the disposal of a variety of types of mining waste as the “discharge of fill
material,” requiring a Section 404 permit rather than a Section 402 permit. Accordingly,
Coeur Mining sought, and received, a Section 404 permit from the Corps of Engineers
that authorized the disposal of mining waste from the Kensington Mine in the Lower Slate
Lake in Alaska. As noted above, when EPA issues Section 402 permits, the permits often
include limits on pollution discharges based on technology-based and water quality based
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standards. Those limits are not included in Section 404 permits that the Corps issues.
The controversy arose in the Kensington Mine case because EPA had developed
technology-based pollution limits that would have significantly limited or precluded Coeur
from disposing of its mining waste in the Lower Slate Lake if Coeur were required to obtain
a Section 402 permit. However, since Coeur was not required to obtain a Section 402
permit, the EPA standards did not apply to Coeur’s disposal of waste in the Lake, but did
apply to any pollution that was released from the Lake. The Southeast Alaska
Conservation Council, a local environmental group, challenged the permit, arguing that
the Corps lacked authority under the Clean Water Act to issue the Section 404 permit and
that the permit should have been issued by EPA under Section 402.

Photo 25 Lower Slate Lake Before and After - Photo by EarthJustice http://blog.nwf.org/2012/10/theclean-water-act-40-years-and-still-a-work-in-progress/lowerslate_beforeandafter/

215

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council
557 U.S. 261 (2009)
Justice Kennedy delivered the opinion
of the Court

Resources for the Case

These cases require us to address two
Unedited opinion (From Justia)
questions under the Clean Water Act
Google Map of all the cases in the coursebook
(CWA or Act). The first is whether the Act
Oral Argument Audio (from the Oyez Project)
gives authority to the United States Army
Information on “froth flotation”
Corps 404 permit for Coeur; EPA NPDES permit
Corps of Engineers, or instead to the
Coeur operating plan
Environmental Protection Agency (EPA),
Alaska DNR Resource Page
to issue a permit for the discharge of
Websites for Coeur and SEACC
mining waste, called slurry. The Corps of
Engineers has issued a permit to
petitioner Coeur Alaska, Inc. (Coeur
Alaska), for a discharge of slurry into a lake in Southeast Alaska. The second question is
whether, when the Corps issued that permit, the agency acted in accordance with law.
We conclude that the Corps was the appropriate agency to issue the permit and that the
permit is lawful.
With regard to the first question, § 404(a) of the CWA grants the Corps the power to “issue
permits … for the discharge of … fill material.” 86 Stat. 884; 33 U.S.C. § 1344(a). But the
EPA also has authority to issue permits for the discharge of pollutants. Section 402 of the
Act grants the EPA authority to “issue a permit for the discharge of any pollutant” “[e]xcept
as provided in” § 404. 33 U.S.C. § 1342(a). We conclude that because the slurry Coeur
Alaska wishes to discharge is defined by regulation as “fill material,” 40 C.F.R. § 232.2
(2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under
§ 404, rather than from the EPA, under § 402.
The second question is whether the Corps permit is lawful. Three environmental groups,
respondents here, sued the Corps under the Administrative Procedure Act, arguing that
the issuance of the permit by the Corps was “not in accordance with law.” 5 U.S.C.
§ 706(2)(A). The environmental groups are Southeast Alaska Conservation Council,
Sierra Club, and Lynn Canal Conservation (collectively, SEACC). The State of Alaska
and Coeur Alaska are petitioners here.
SEACC argues that the permit from the Corps is unlawful because the discharge of slurry
would violate an EPA regulation promulgated under § 306(b) of the CWA, 33 U.S.C.
§ 1316(b). The EPA regulation, which is called a “new source performance standard,”
forbids mines like Coeur Alaska’s from discharging “process wastewater” into the

216

navigable waters. 40 C.F.R. § 440.104(b)(1). Coeur Alaska, the State of Alaska, and the
federal agencies maintain that the Corps permit is lawful nonetheless because the EPA’s
performance standard does not apply to discharges of fill material.
Reversing the judgment of the District Court, the Court of Appeals held that the EPA’s
performance standard applies to this discharge so that the permit from the Corps is
unlawful.
I
A
Petitioner Coeur Alaska plans to reopen the Kensington Gold Mine, located some 45
miles north of Juneau, Alaska. The mine has been closed since 1928, but Coeur Alaska
seeks to make it profitable once more by using a technique known as “froth flotation.”
Coeur Alaska will churn the mine’s crushed rock in tanks of frothing water. Chemicals in
the water will cause gold-bearing minerals to float to the surface, where they will be
skimmed off.
At issue is Coeur Alaska’s plan to dispose of the mixture of crushed rock and water left
behind in the tanks. This mixture is called slurry. Some 30 percent of the slurry’s volume
is crushed rock, resembling wet sand, which is called tailings. The rest is water.
The standard way to dispose of slurry is to pump it into a tailings pond. The slurry
separates in the pond. Solid tailings sink to the bottom, and water on the surface returns
to the mine to be used again.
Rather than build a tailings pond, Coeur Alaska proposes to use Lower Slate Lake,
located some three miles from the mine in the Tongass National Forest. This lake is small
— 800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. See App.
138a, 212a. Though small, the lake is 51 feet deep at its maximum. The parties agree the
lake is a navigable water of the United States and so is subject to the CWA. They also
agree there can be no discharge into the lake except as the CWA and any lawful permit
allow.
Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the
lake. This will raise the lakebed 50 feet — to what is now the lake’s surface — and will
increase the lake’s area from 23 to about 60 acres. Id., at 361a (62 acres), 212a (56
acres). To contain this wider, shallower body of water, Coeur Alaska will dam the lake’s
downstream shore. The transformed lake will be isolated from other surface water.
Creeks and stormwater runoff will detour around it. Id., at 298a. Ultimately, lakewater will
be cleaned by purification systems and will flow from the lake to a stream and thence
onward. Id., at 309a–312a.

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B
Numerous state and federal agencies reviewed and approved Coeur Alaska’s plans. At
issue here are actions by two of those agencies: the Corps of Engineers and the EPA.
1
The CWA classifies crushed rock as a “pollutant.” 33 U.S.C. § 1362(6). On the one hand,
the Act forbids Coeur Alaska’s discharge of crushed rock “[e]xcept as in compliance” with
the Act. CWA §301(a), 33 U.S.C. §1311(a). Section 404(a) of the CWA, on the other
hand, empowers the Corps to authorize the discharge of “dredged or fill material.” 33
U.S.C. § 1344(a). The Corps and the EPA have together defined “fill material” to mean
any “material [that] has the effect of … [c]hanging the bottom elevation” of water. 40
C.F.R. § 232.2. The agencies have further defined the “discharge of fill material” to
include “placement of … slurry, or tailings or similar mining-related materials.” Ibid.
In these cases the Corps and the EPA agree that the slurry meets their regulatory
definition of “fill material.” On that premise the Corps evaluated the mine’s plan for a §
404 permit. After considering the environmental factors required by § 404(b), the Corp
issued Coeur Alaska a permit to pump the slurry into Lower Slate Lake. App. 340a–378a.
In granting the permit the Corps followed the steps set forth by § 404. Section 404(b)
requires the Corps to consider the environmental consequences of every discharge it
allows. 33 U.S.C. § 1344(b). The Corps must apply guidelines written by the EPA
pursuant to § 404(b). See ibid.; 40 C.F.R. pt. 230 (EPA guidelines). Applying those
guidelines here, the Corps determined that Coeur Alaska’s plan to use Lower Slate Lake
as a tailings pond was the “least environmentally damaging practicable” way to dispose
of the tailings. App. 366a. To conduct that analysis, the Corps compared the plan to the
proposed alternatives.
The Corps determined that the environmental damage caused by placing slurry in the
lake will be temporary. And during that temporary disruption, Coeur Alaska will divert
waters around the lake through pipelines built for this purpose. Id., at 298a. Coeur Alaska
will also treat water flowing from the lake into downstream waters, pursuant to strict EPA
criteria. Ibid.; see Part I–B–2, infra. Though the slurry will at first destroy the lake’s small
population of common fish, that population may later be replaced. After mining operations
are completed, Coeur Alaska will help “recla[im]” the lake by “[c]apping” the tailings with
about 4 inches of “native material.” App. 361a; id., at 309a. The Corps concluded that
“[t]he reclamation of the lake will result in more emergent wetlands/vegetated
shallows with moderate values for fish habitat, nutrient recycling, carbon/detrital
export and sediment/toxicant retention, and high values for wildlife habitat.” Id., at
361a.

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If the tailings did not go into the lake, they would be placed on nearby wetlands. The
resulting pile would rise twice as high as the Pentagon and cover three times as many
acres. Reply Brief for Petitioner Coeur Alaska 27. If it were chosen, that alternative would
destroy dozens of acres of wetlands—a permanent loss. App. 365a–366a. On the
premise that when the mining ends the lake will be at least as environmentally hospitable,
if not more so, than now, the Corps concluded that placing the tailings in the lake will
cause less damage to the environment than storing them above ground: The reclaimed
lake will be “more valuable to the aquatic ecosystem than a permanently filled wetland …
that has lost all aquatic functions and values.” Id., at 361a; see also id., at 366a.
2
The EPA had the statutory authority to veto the Corps permit, and prohibit the discharge,
if it found the plan to have “an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas … , wildlife, or recreational areas.” CWA § 404(c), 33
U.S.C. § 1344(c). After considering the Corps findings, the EPA did not veto the Corps
permit, even though, in its view, placing the tailings in the lake was not the
“environmentally preferable” means of disposing of them. App. 300a. By declining to
exercise its veto, the EPA in effect deferred to the judgment of the Corps on this point.
The EPA’s involvement extended beyond the agency’s veto consideration. The EPA also
issued a permit of its own—not for the discharge from the mine into the lake but for the
discharge from the lake into a downstream creek. Id., at 287a–331a. Section 402 grants
the EPA authority to “issue a permit for the discharge of any pollutant,” “[e]xcept as
provided in [CWA § 404].” 33 U.S.C. § 1342(a). The EPA’s § 402 permit authorizes Coeur
Alaska to discharge water from Lower Slate Lake into the downstream creek, subject to
strict water-quality limits that Coeur Alaska must regularly monitor. App. 303a–304a,
309a.
The EPA’s authority to regulate this discharge comes from a regulation, termed a “new
source performance standard,” that it has promulgated under authority granted to it by
§306(b) of the CWA. Section 306(b) gives the EPA authority to regulate the amount of
pollutants that certain categories of new sources may discharge into the navigable waters
of the United States. 33 U.S.C. § 1316(b). Pursuant to this authority, the EPA in 1982
promulgated a new source performance standard restricting discharges from new frothflotation gold mines like Coeur Alaska’s. The standard is stringent: It allows “no discharge
of process wastewater” from these mines. 40 C.F.R. § 440.104(b)(1).
Applying that standard to the discharge of water from Lower Slate Lake into the
downstream creek, the EPA’s § 402 permit sets strict limits on the amount of pollutants
the water may contain. The permit requires Coeur Alaska to treat the water using “reverse

219

osmosis” to remove aluminum, suspended solids, and other pollutants. App. 298a; id., at
304a. Coeur Alaska must monitor the water flowing from the lake to be sure that the
pollutants are kept to low, specified minimums. Id., at 326a–330a.
C
SEACC brought suit against the Corps of Engineers and various of its officials in the
United States District Court for the District of Alaska. The Corps permit was not in
accordance with law, SEACC argued, for two reasons. First, in SEACC’s view, the permit
was issued by the wrong agency—Coeur Alaska ought to have sought a § 402 permit
from the EPA, just as the company did for the discharge of water from the lake into the
downstream creek. See Part I–B–2, supra. Second, SEACC contended that regardless
of which agency issued the permit, the discharge itself is unlawful because it will violate
the EPA new source performance standard for froth-flotation gold mines. (This is the
same performance standard described above, which the EPA has already applied to the
discharge of water from the lake into the downstream creek. See ibid.) SEACC argued
that this performance standard also applies to the discharge of slurry into the lake. It
contended further that the performance standard is a binding implementation of § 306.
Section 306(e) of the CWA makes it “unlawful” for Coeur Alaska to “operate” the mine “in
violation of” the EPA’s performance standard. 33 U.S.C. § 1316(e).
Coeur Alaska and the State of Alaska intervened as defendants. Both sides moved for
summary judgment. The District Court granted summary judgment in favor of the
defendants. The Court of Appeals for the Ninth Circuit reversed and ordered the District
Court to vacate the Corps of Engineers’ permit. Southeast Alaska Conservation Council
v. United States Army Corps of Engs., 486 F.3d 638, 654–655 (2007).
The Court of Appeals concluded that Coeur Alaska required a § 402 permit for its slurry
discharge, that the Corps lacked authority to issue such a permit under § 404, and that
the proposed discharge was unlawful because it would violate the EPA new source
performance standard and § 306(e).
The decision of the Court of Appeals in effect reallocated the division of responsibility that
the Corps and the EPA had been following. The Court granted certiorari. We now hold
that the decision of the Court of Appeals was incorrect.
II
The question of which agency has authority to consider whether to permit the slurry
discharge is our beginning inquiry. We consider first the authority of the EPA and second
the authority of the Corps. Our conclusion is that under the CWA the Corps had authority
to determine whether Coeur Alaska was entitled to the permit governing this discharge.

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A
Section 402 gives the EPA authority to issue “permit[s] for the discharge of any pollutant,”
with one important exception: The EPA may not issue permits for fill material that fall
under the Corps’ § 404 permitting authority. * * *
Section 402 thus forbids the EPA from exercising permitting authority that is ‘provided [to
the Corps] in § 404.
***
The Act is best understood to provide that if the Corps has authority to issue a permit for
a discharge under § 404, then the EPA lacks authority to do so under § 402.
Even if there were ambiguity on this point, the EPA’s own regulations would resolve it.
Those regulations provide that “[d]ischarges of dredged or fill material into waters of the
United States which are regulated under section 404 of CWA” “do not require permits”
from the EPA. 40 C.F.R. § 122.3.
In SEACC’s view, this regulation implies that some “fill material” discharges are not
regulated under § 404—else, SEACC asks, why would the regulation lack a comma
before the word “which,” and thereby imply that only a subset of “discharges of … fill
material” are “regulated under section 404.” Ibid.
The agencies, however, have interpreted this regulation otherwise. In the agencies’ view
the regulation essentially restates the text of § 402, and forbids the EPA from issuing
permits for discharges that “are regulated under section 404.” 40 C.F.R. § 122.3(b); cf.
CWA § 402(a) (“[e]xcept as provided in … [§ 404], the Administrator may . . . issue a
permit”). Before us, the EPA confirms this reading of the regulation. Brief for Federal
Respondents 27. The agency’s interpretation is not “plainly erroneous or inconsistent with
the regulation”; and so we accept it as correct. Auer v. Robbins, 519 U.S.452, 461 (1997)
(internal quotation marks omitted).
The question whether the EPA is the proper agency to regulate the slurry discharge thus
depends on whether the Corps of Engineers has authority to do so. If the Corps has
authority to issue a permit, then the EPA may not do so. We turn to the Corps’ authority
under § 404.
B
Section 404(a) gives the Corps power to “issue permits … for the discharge of dredged
or fill material.” 33 U.S.C. § 1344(a). As all parties concede, the slurry meets the definition

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of fill material agreed upon by the agencies in a joint regulation promulgated in 2002. That
regulation defines “fill material” to mean any “material [that] has the effect of … [c]hanging
the bottom elevation” of water—a definition that includes “slurry, or tailings or similar
mining-related materials.” 40 C.F.R. § 232.2.
SEACC concedes that the slurry to be discharged meets the regulation’s definition of fill
material. Brief for Respondent SEACC et al. 20. Its concession on this point is appropriate
because slurry falls well within the central understanding of the term “fill,” as shown by
the examples given by the regulation. See 40 C.F.R. § 232.2 (“Examples of such fill
material include, but are not limited to: rock, sand, soil, clay … .”). The regulation further
excludes “trash or garbage” from its definition. Ibid. SEACC expresses a concern that
Coeur Alaska’s interpretation of the statute will lead to §404 permits authorizing the
discharges of other solids that are now restricted by EPA standards. Brief for Respondent
SEACC et al. 44–45 (listing, for example, “feces and uneaten feed,” “litter,” and waste
produced in “battery manufacturing”). But these extreme instances are not presented by
the cases now before us. If, in a future case, a discharger of one of these solids were to
seek a § 404 permit, the dispositive question for the agencies would be whether the solid
at issue—for instance, “feces and uneaten feed”—came within the regulation’s definition
of “fill.” SEACC cites no instance in which the agencies have so interpreted their fill
regulation. If that instance did arise, and the agencies were to interpret the fill regulation
as SEACC fears, then SEACC could challenge that decision as an unlawful interpretation
of the fill regulation; or SEACC could claim that the fill regulation as interpreted is an
unreasonable interpretation of § 404. The difficulties are not presented here, however,
because the slurry meets the regulation’s definition of fill.
Rather than challenge the agencies’ decision to define the slurry as fill, SEACC instead
contends that § 404 contains an implicit exception. According to SEACC, § 404 does not
authorize the Corps to permit a discharge of fill material if that material is subject to an
EPA new source performance standard.
But § 404’s text does not limit its grant of power in this way. Instead, § 404 refers to all
“fill material” without qualification. Nor do the EPA regulations support SEACC’s reading
of § 404. The EPA has enacted guidelines, pursuant to § 404(b), to guide the Corps
permitting decision. 40 C.F.R. pt. 230. Those guidelines do not strip the Corps of power
to issue permits for fill in cases where the fill is also subject to an EPA new source
performance standard.
SEACC’s reading of § 404 would create numerous difficulties for the regulated industry.
As the regulatory regime stands now, a discharger must ask a simple question—is the
substance to be discharged fill material or not? The fill regulation, 40 C.F.R. § 232.2,
offers a clear answer to that question; and under the agencies’ view, that answer decides
the matter—if the discharge is fill, the discharger must seek a § 404 permit from the Corps;

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if not, only then must the discharger consider whether any EPA performance standard
applies, so that the discharger requires a § 402 permit from the EPA.
Under SEACC’s interpretation, however, the discharger would face a more difficult
problem. The discharger would have to ask—is the fill material also subject to one of the
many hundreds of EPA performance standards, so that the permit must come from the
EPA, not the Corps? The statute gives no indication that Congress intended to burden
industry with that confusing division of permit authority.
The regulatory scheme discloses a defined, and workable, line for determining whether
the Corps or the EPA has the permit authority. Under this framework, the Corps of
Engineers, and not the EPA, has authority to permit Coeur Alaska’s discharge of the
slurry.
[In Part III of the opinion, the Court determined that the Corps did not act unlawfully by
failing to include conditions in the Section 404 permit that would be necessary to comply
with the new source performance standards of Section 306 of the Clean Water Act.]
***
Justice Ginsburg, with whom Justice Stevens and Justice Souter join, dissenting:
Petitioner Coeur Alaska, Inc., proposes to discharge 210,000 gallons per day of mining
waste into Lower Slate Lake, a 23-acre subalpine lake in Tongass National Forest. The
“tailings slurry” would contain concentrations of aluminum, copper, lead, and mercury.
Over the life of the mine, roughly 4.5 million tons of solid tailings would enter the lake,
raising the bottom elevation by 50 feet. It is undisputed that the discharge would kill all of
the lake’s fish and nearly all of its other aquatic life.1
Coeur Alaska’s proposal is prohibited by the Environmental Protection Agency (EPA)
performance standard forbidding any discharge of process wastewater from new “frothflotation” mills into waters of the United States. See 40 C.F.R. § 440.104(b)(1) (2008).
Section 306 of the Clean Water Act directs EPA to promulgate such performance
standards, 33 U.S.C. § 1316(a), and declares it unlawful for any discharger to violate
them, § 1316(e). Ordinarily, that would be the end of the inquiry.
Coeur Alaska contends, however, that its discharge is not subject to EPA’s regulatory
1

Whether aquatic life will eventually be able to inhabit the lake again is uncertain.
Compare ante, at 5, with App. 201a–202a; and Southeast Alaska Conservation Council
v. United States Army Corps of Engineers, 486 F.3d 638, 642 (9th Cir. 2007).
223

regime, but is governed, instead, by the mutually exclusive permitting authority of the
Army Corps of Engineers. The Corps has authority, under § 404 of the Act, § 1344(a), to
issue permits for discharges of “dredged or fill material.” By regulation, a discharge that
has the effect of raising a water body’s bottom elevation qualifies as “fill material.” See 33
C.F.R. § 323.2(e) (2008). Discharges properly within the Corps’ permitting authority, it is
undisputed, are not subject to EPA performance standards. See ante, at 20; Brief for
Petitioner Coeur Alaska 26; Brief for Respondent Southeast Alaska Conservation Council
et al. 37.
The litigation before the Court thus presents a single question: Is a pollutant discharge
prohibited under § 306 of the Act eligible for a § 404 permit as a discharge of fill material?
In agreement with the Court of Appeals, I would answer no. The statute’s text, structure,
and purpose all mandate adherence to EPA pollution-control requirements. A discharge
covered by a performance standard must be authorized, if at all, by EPA.
I
A
Congress enacted the Clean Water Act in 1972 “to restore and maintain the chemical,
physical, and biological integrity” of the waters of the United States. 33 U.S.C. § 1251(a).
“The use of any river, lake, stream or ocean as a waste treatment system,” the Act’s
drafters stated, “is unacceptable.” S. Rep. No. 92–414, p. 7 (1971). Congress announced
in the Act itself an ambitious objective: to eliminate, by 1985, the discharge of all pollutants
into the Nation’s navigable waters. 33 U.S.C. § 1251(a).
In service of its goals, Congress issued a core command: “[T]he discharge of any pollutant
by any person shall be unlawful,” except in compliance with the Act’s terms. § 1311(a).
***
The Act instructs EPA to establish various technology-based, increasingly stringent
effluent limitations for categories of point sources. E.g., §§ 1311, 1314. These limitations,
formulated as restrictions “on quantities, rates, and concentrations of chemical, physical,
biological, and other constituents,” § 1362(11), were imposed to achieve national
uniformity among categories of sources. See, e.g., E. I. du Pont de Nemours & Co. v.
Train, 430 U.S. 112, 129–130 (1977). The limitations for a given discharge depend on the
type of pollutant and source at issue. * * *
Of key importance, new sources must meet stringent “standards of performance” adopted
by EPA under § 306. That section makes it “unlawful for any … new source to operate …
in violation of” an applicable performance standard. 33 U.S.C. § 1316(e) (emphasis
added). In line with Congress’ aim “to insure …‘maximum feasible control of new sources,’

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” du Pont, 430 U.S., at 138, the preferred standard for a new source is one “ ‘permitting
no discharge of pollutants,’ ” id., at 137–138 (quoting 33 U.S.C. § 1316(a)(1) (emphasis
added)). Moreover, new sources, unlike existing sources, are not eligible for EPA-granted
variances from applicable limitations. 430 U.S., at 138. * * *
In 1982, EPA promulgated new source performance standards for facilities engaged in
mining, including those using a froth-flotation milling process. See Ore Mining and
Dressing Point Source Category Effluent Limitations Guidelines and New Source
Performance Standards, 47 Fed. Reg. 54598 (1982). Existing mills, the Agency found,
were already achieving zero discharge; it was therefore practicable, EPA concluded, for
new mills to do as well. Id., at 54602. Accordingly, under 40 C.F.R. § 440.104(b)(1), new
mines using the froth-flotation method, as Coeur Alaska proposes to do, may not
discharge wastewater directly into waters of the United States.
B
The nationwide pollution-control requirements just described are implemented through
the National Pollution Discharge Elimination System (NPDES), a permitting scheme set
forth in § 402 and administered by EPA and the States. The NPDES is the linchpin of the
Act, for it transforms generally applicable effluent limitations into the individual obligations
of each discharger. EPA v. California ex rel. State Water Resources Control Bd., 426 U.S.
200, 205 (1976). The discharge of a pollutant is generally prohibited unless the source
has obtained a NPDES permit. E.g., EPA v. National Crushed Stone Assn., 449 U.S. 64,
71 (1980) (“Section 402 authorizes the establishment of the [NPDES], under which every
discharger of pollutants is required to obtain a permit.”).
The Act also establishes a separate permitting scheme, administered by the Corps, for
discharges of “dredged or fill material.” 33 U.S.C. § 1344(a). Section 404 hews to the
Corps’ established expertise in matters of navigability and construction. The § 404
program does not implement the uniform, technology-based pollution-control standards
set out, inter alia, in § 306. Instead, § 404 permits are subject to regulatory guidelines
based generally on the impact of a discharge on the receiving environment. See
§ 1344(b); ante, at 4–5.
As the above-described statutory background indicates, Coeur Alaska’s claim to a § 404
permit carries weighty implications. If eligible for that permit, Coeur Alaska can evade the
exacting performance standard prescribed by EPA for froth-flotation mills. It may, instead,
use Lower Slate Lake “as the settling pond and disposal site for the tailings.” App. 360a
(Corps’ Record of Decision).

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II
Is a pollutant discharge prohibited under § 306(e) eligible to receive a § 404 permit as a
discharge of fill material? All agree on preliminary matters. Only one agency, the Corps
or EPA, can issue a permit for the discharge. See ante, at 10, 22. Only EPA, through the
NPDES program, issues permits that implement § 306. See supra, at 2. Further, § 306(e)
and EPA’s froth-flotation performance standard, unless inapplicable here, bar Coeur
Alaska’s proposed discharge. See ante, at 14–15.
No part of the statutory scheme, in my view, calls into question the governance of EPA’s
performance standard. The text of § 306(e) states a clear proscription: “[I]t shall be
unlawful for any owner or operator of any new source to operate such source in violation
of any standard of performance applicable to such source.” 33 U.S.C. § 1316(e). Under
the standard of performance relevant here, “there shall be no discharge of process
wastewater to navigable waters from mills that use the froth-flotation process” for mining
gold. 40 C.F.R. § 440.104(b)(1). The Act imposes these requirements without
qualification.
Section 404, stating that the Corps “may issue permits” for the discharge of “dredged or
fill material,” does not create an exception to § 306(e)’s plain command. 33 U.S.C.
§ 1344(a). Cf. ante, at 12. Section 404 neither mentions § 306 nor states a contrary
requirement. The Act can be home to both provisions, with no words added or omitted,
so long as the category of “dredged or fill material” eligible for a § 404 permit is read in
harmony with § 306. Doing so yields a simple rule: Discharges governed by EPA
performance standards are subject to EPA’s administration and receive permits under the
NPDES, not § 404.
This reading accords with the Act’s structure and objectives. It retains, through the
NPDES, uniform application of the Act’s core pollution-control requirements, and it
respects Congress’ special concern for new sources. Leaving pollution-related decisions
to EPA, moreover, is consistent with Congress’ delegation to that agency of primary
responsibility to administer the Act. Most fundamental, adhering to § 306(e)’s instruction
honors the overriding statutory goal of eliminating water pollution, and Congress’
particular rejection of the use of navigable waters as waste disposal sites. See supra, at
2–3. See also 33 U.S.C. § 1324 (creating “clean lakes” program requiring States to
identify and restore polluted lakes). * * *
Questions and Comments
1.

Did the case involve any addition of pollutants into wetlands? If not, does it have
any implications for disposal of slurry and mining waste in wetlands?

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2.

In its recitation of the facts, the majority indicates that the Corps determined that
disposal of the slurry in Lower Slate Lake was the “least environmentally damaging
practicable” way to dispose of the tailings and the court contrasted the harm that
would be caused to the lake with the permanent loss of wetlands that would occur
under one of the alternative proposals that involved storing the tailings near the
mine in a “dry tailings facility.” However, the Court does not mention that the “dry
tailings facility” alternative would destroy the most common types of wetlands in
Alaska, while the activities associated with disposal in the Lake would affect a
greater variety of wetland types. See U.S. Department of Agriculture, U.S.
Environmental Protection Agency, U.S. Army Corps of Engineers, Alaska
Department of Natural Resources, Kensington Gold Project, Final Environmental
Impact Statement § 4.12.3 (Dec. 2004). EPA determined that the alternative
involving the construction of the “dry tailings facility” was the “environmentally
preferred alternative.” Id. at 5. The Court also indicates that EPA deferred to the
Corps’ determination that the disposal of the tailings in the Lake was
“environmentally preferable” because EPA did not veto the Corps permit. Do you
agree? What is the standard for EPA’s exercise of its veto? See 33 U.S.C.
§ 1344(c). What considerations impact EPA’s decision regarding whether to veto
a Corps permit? Chapter 8 of this book examines EPA’s veto authority in detail.

3.

The case involves two questions: (a) whether the Corps or EPA has authority to
issue a permit for the addition of the slurry to the Lower Slate Lake; and (b) whether
the Corps acted in accordance with the law when it issued the Section 404 permit
to Coeur. With regard to the first question, does the Court address the question
whether the slurry is “fill” material under the Corps’ regulatory definition and, if so,
whether the regulatory definition is within the Corps’ authority under the Clean
Water Act? If not, why not?

4.

What is the basis for SEACC’s argument that the Corps does not have authority
under Section 404 to issue permits for the disposal of the mine slurry in Lower
Slate Lake? On what tools of statutory interpretation does the majority rely to
conclude that the Corps can issue such permits? In light of the approach taken by
the majority, could EPA change its interpretation of the statute and assert
jurisdiction over disposal activities like Coeur’s in the future? Does the dissent
agree with the majority that industries like the mining industry would find it difficult
to determine whether EPA had adopted technology based standards that applied
to their pollution discharges?

5.

Does the Court’s decision provide industries with an end run around EPA’s
technology-based standards? If EPA issued the permit under section 402, rather
than the Corps issuing the permit under Section 404, the permit would prohibit

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Coeur from discharging any “process wastewater” from the mine into the Lake. On
what statutory interpretation tools does the dissent rely to determine that EPA,
rather than the Corps, should issue permits for discharges of fill material by
industries when EPA has adopted technology based standards that apply to those
industries?
6.

On the second question, regarding whether the Corps acted within its authority in
issuing a Section 404 permit for the disposal of the mine slurry without requiring
the permittee to comply with EPA’s technology based standards, the majority
concluded that the statute and regulations were ambiguous, but that the agencies’
interpretation of the ambiguous regulations was reasonable and entitled to Auer
deference. While Justice Scalia concurred in the result, he wrote separately to
criticize the majority’s approach. He pointed out that United States v. Mead, 533
U.S. 218 (2001), a case from which he dissented, limited the situations in which
Chevron deference applied. See Coeur Alaska, Inc. v. Southeast Alaska
Conservation Council, 557 U.S. 261, 295 (Scalia, dissenting). Although he
disagreed with Mead, Scalia criticized the majority for, in essence, creating an end
run around Mead by holding that the agencies’ interpretation of the Clean Water
Act was not entitled to Chevron deference but according the agencies a similar
degree of deference in reviewing their interpretation of their regulations. Id. He
argued that the Court should not accord agencies Auer deference when the statute
and regulation being interpreted are both ambiguous. Id. Nevertheless, he
concurred with the majority’s ruling, because he thought that the agencies actions
were reasonable, and he wrote, “I favor overruling Mead. Failing that, I am pleased
to join an opinion that effectively ignores it.” 557 U.S. at 296.

7.

Post-script: The Kensington Mine began operations on July 3, 2010 and currently
has over 300 employees. Operating costs at the mine for 2013 were $890 per
ounce. See Coeur Mining, Kensington, Alaska. In 2006, before the mine started
operations, it paid a fine of $18,334 to EPA for stormwater violations associated
with construction. See Elizabeth Bluemink, Kensington Gold Mine Operator to Pay
$170,000 Federal Fine, Anchorage Daily News (Dec. 15, 2010). The following
year, it began discharging sediment and acidic stormwater into a nearby creek in
violation of the Clean Water Act. Id. EPA discovered the violations the following
year and the mine operator paid a $170,000 fine in 2010 for violations between
2006 and 2010. Id.

F.

Discharges Through Groundwater

In 2019, the Supreme Court addressed another important issue regarding the scope of
federal regulation over “discharges” from point sources into navigable waters, when it
decided County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2019), which involved

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an indirect discharge of pollution from a wastewater reclamation facility into coastal
waters through groundwater.
County Of Maui V. Hawaii Wildlife Fund
140 S. Ct. 1462 (2019)
Resources for the Case
Justice Breyer delivered the opinion
Unedited
opinion
(From LII)
of the Court.
Google
Map
of
all
the cases in the coursebook
The Clean Water Act forbids the
Oral Argument Audio (from the Oyez Project)
“addition” of any pollutant from a “point
EPA Interpretive Statement re: groundwater
source” to “navigable waters” without
Maui County WWRF webpage and FAQs re:
wastewater injection
the appropriate permit from the
Sierra Club webpage re: facility
Environmental Protection Agency
2004 EPA permit for underground injection wells
(EPA). Federal Water Pollution Control
EPA study – connection b/w discharge and waters
Act, §§301(a), 502(12)(A), as amended
Hawaii NPR stories re: site and litigation
by the Federal Water Pollution Control
Upgrades to WWRF – News stories from Maui
News and Lahaina News
Act Amendments of 1972 (Clean Water
Act) §2, 86 Stat. 844, 886, 33 U. S. C.
§§1311(a), 1362(12)(A). The question
presented here is whether the Act
“requires a permit when pollutants originate from a point source but are conveyed to
navigable waters by a nonpoint source,” here, “groundwater.” *** Suppose, for example,
that a sewage treatment plant discharges polluted water into the ground where it mixes
with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean. Must
the plant’s owner seek an EPA permit before emitting the pollutant? We conclude that the
statutory provisions at issue require a permit if the addition of the pollutants through
groundwater is the functional equivalent of a direct discharge from the point source into
navigable waters.
I
A
Congress’ purpose as reflected in the language of the Clean Water Act is to “‘restore and
maintain the . . . integrity of the Nation’s waters,” §101(a) *** Prior to the Act, Federal and
State Governments regulated water pollution in large part by setting water quality
standards. *** The Act restructures federal regulation by insisting that a person wishing
to discharge any pollution into navigable waters first obtain EPA’s permission to do so.
***
The Act’s provisions use specific definitional language to achieve this result. * * * The Act
*** states that (with certain exceptions) “‘the discharge of any pollutant by any person’ ”
without an appropriate permit “ ‘shall be unlawful.’ ” §301, id., at 844. The question here,
as we have said, is whether, or how, this statutory language applies to a pollutant that

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reaches navigable waters only after it leaves a “point source” and then travels through
groundwater before reaching navigable waters. In such an instance, has there been a
“discharge of a pollutant,” that is, has there been “any addition of any pollutant to
navigable waters from any point source?”
B
The petitioner, the County of Maui, operates a wastewater reclamation facility on the
island of Maui, Hawaii. The facility collects sewage from the surrounding area, partially
treats it, and pumps the treated water through four wells hundreds of feet underground.
This effluent, amounting to about 4 million gallons each day, then travels a further half
mile or so, through groundwater, to the ocean.
In 2012, several environmental groups, the respondents here, brought this citizens’ Clean
Water Act lawsuit against Maui. *** They claimed that Maui was “discharg[ing]” a
“pollutant” to “navigable waters,” namely, the Pacific Ocean, without the permit required
by the Clean Water Act. The District Court, relying in part upon a detailed study of the
discharges, found that a considerable amount of effluent from the wells ended up in the
ocean (a navigable water). It wrote that, because the “path to the ocean is clearly
ascertainable,” the discharge from Maui’s wells into the nearby groundwater was
“functionally one into navigable water.” 24 F. Supp. 3d 980, 998 (Haw. 2014). And it
granted summary judgment in favor of the environmental groups. See id., at 1005.
The Ninth Circuit affirmed the District Court, but it described the relevant statutory
standard somewhat differently. The appeals court wrote that a permit is required when
“the pollutants are fairly traceable from the point source to a navigable water such that
the discharge is the functional equivalent of a discharge into the navigable water.” 886
F.3d 737, 749 (2018) (emphasis added). The court left “for another day the task of
determining when, if ever, the connection between a point source and a navigable water
is too tenuous to support liability . . . .” Ibid.
Maui petitioned for certiorari. In light of the differences in the standards adopted by the
different Courts of Appeals, we granted the petition. Compare, e.g., 886 F. 3d, at 749
(“fairly traceable”), with Upstate Forever v. Kinder Morgan Energy Partners, L. P., 887
F.3d 637, 651 (CA4 2018) (“direct hydrological connection”), and Kentucky Waterways
Alliance v. Kentucky Util. Co., 905 F.3d 925, 932–938 (CA6 2018) (discharges through
groundwater are excluded from the Act’s permitting requirements).
II
The linguistic question here concerns the statutory word “from.” Is pollution that reaches
navigable waters only through groundwater pollution that is “from” a point source, as the

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statute uses the word? The word “from” is broad in scope, but context often imposes
limitations. “Finland,” for example, is often not the right kind of answer to the question,
“Where have you come from?” even if long ago you were born there.
The parties here disagree dramatically about the scope of the word “from” in the present
context. The environmental groups, the respondents, basically adopt the Ninth Circuit’s
view—that the permitting requirement applies so long as the pollutant is “fairly traceable”
to a point source even if it traveled long and far (through groundwater) before it reached
navigable waters. They add that the release from the point source must be “a proximate
cause of the addition of pollutants to navigable waters.” ***
Maui, on the other hand, argues that the statute creates a “bright-line test.” *** A point
source or series of point sources must be “the means of delivering pollutants to navigable
waters.” *** They add that, if “at least one nonpoint source (e.g., unconfined rainwater
runoff or groundwater)” lies “between the point source and the navigable water,” then the
permit requirement “does not apply.” *** A pollutant is “from” a point source only if a point
source is the last “conveyance” that conducted the pollutant to navigable waters.
The Solicitor General, as amicus curiae, supports Maui, at least in respect to
groundwater. Reiterating the position taken in a recent EPA “Interpretive Statement,” see
84 Fed. Reg. 16810 (2019), he argues that, given the Act’s structure and history, “a
release of pollutants to groundwater is not subject to” the Act’s permitting requirement
“even if the pollutants subsequently migrate to jurisdictional surface waters,” such as the
ocean. ***
We agree that statutory context limits the reach of the statutory phrase “from any point
source” to a range of circumstances narrower than that which the Ninth Circuit’s
interpretation suggests. At the same time, it is significantly broader than the total
exclusion of all discharges through groundwater described by Maui and the Solicitor
General.
III
Virtually all water, polluted or not, eventually makes its way to navigable water. This is
just as true for groundwater. See generally 2 Van Nostrand’s Scientific Encyclopedia 2600
(10th ed. 2008) (defining “Hydrology”). Given the power of modern science, the Ninth
Circuit’s limitation, “fairly traceable,” may well allow EPA to assert permitting authority
over the release of pollutants that reach navigable waters many years after their release
(say, from a well or pipe or compost heap) and in highly diluted forms. ***
The respondents suggest that the standard can be narrowed by adding a “proximate
cause” requirement. That is, to fall within the permitting provision, the discharge from a

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point source must “proximately cause” the pollutants’ eventual addition to navigable
waters. But the term “proximate cause” derives from general tort law, and it takes on its
specific content based primarily on “policy” considerations. See CSX Transp., Inc. v.
McBride, 564 U. S. 685, 701 (2011) (plurality opinion). In the context of water pollution,
we do not see how it significantly narrows the statute beyond the words “fairly traceable”
themselves.
Our view is that Congress did not intend the point source-permitting requirement to
provide EPA with such broad authority as the Ninth Circuit’s narrow focus on traceability
would allow. First, to interpret the word “from” in this literal way would require a permit in
surprising, even bizarre, circumstances, such as for pollutants carried to navigable waters
on a bird’s feathers, or, to mention more mundane instances, the 100-year migration of
pollutants through 250 miles of groundwater to a river.
Second, and perhaps most important, the structure of the statute indicates that, as to
groundwater pollution and nonpoint source pollution, Congress intended to leave
substantial responsibility and autonomy to the States. See, e.g., §101(b) *** (stating
Congress’ purpose in this regard). Much water pollution does not come from a readily
identifiable source. See 3 Van Nostrand’s Scientific Encyclopedia, at 5801 (defining
“Water Pollution”). Rainwater, for example, can carry pollutants (say, as might otherwise
collect on a roadway); it can pollute groundwater, and pollution collected by unchanneled
rainwater runoff is not ordinarily considered point source pollution. Over many decades,
and with federal encouragement, the States have developed methods of regulating
nonpoint source pollution through water quality standards, and otherwise. * * *
The Act envisions EPA’s role in managing nonpoint source pollution and groundwater
pollution as limited to studying the issue, sharing information with and collecting
information from the States, and issuing monetary grants. See §§105, 208 ***; see also
Water Quality Act of 1987, §316 *** (establishing Nonpoint Source Management
Programs). Although the Act grants EPA specific authority to regulate certain point
source pollution (it can also delegate some of this authority to the States acting under
EPA supervision, see §402(b) ***), these permitting provisions refer to “point sources”
and “navigable waters,” and say nothing at all about nonpoint source regulation or
groundwater regulation. We must doubt that Congress intended to give EPA the authority
to apply the word “from” in a way that could interfere as seriously with States’ traditional
regulatory authority—authority the Act preserves and promotes—as the Ninth Circuit’s
“fairly traceable” test would.
Third, those who look to legislative history to help interpret a statute will find that this Act’s
history strongly supports our conclusion that the permitting provision does not extend so
far. Fifty years ago, when Congress was considering the bills that became the Clean
Water Act, William Ruckelshaus, the first EPA Administrator, asked Congress to grant

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EPA authority over “ground waters” to “assure that we have control over the water table
. . . so we can . . . maintai[n] a control over all the sources of pollution, be they discharged
directly into any stream or through the ground water table.” Water Pollution Control
Legislation–1971 (Proposed Amendments to Existing Legislation): Hearings before the
House Committee on Public Works, 92d Cong., 1st Sess., 230 (1971). Representative
Les Aspin similarly pointed out that there were “conspicuou[s ]” references to groundwater
in all sections of the bill except the permitting section at issue here. Water Pollution
Control Legislation–1971: Hearings before the House Committee on Public Works on H.
R. 11896 and H. R. 11895, 92d Cong., 1st Sess., 727 (1972). The Senate Committee on
Public Works “recognize[d] the essential link between ground and surface waters.”
S. Rep. No. 92–414, p. 73 (1971).
But Congress did not accept these requests for general EPA authority over groundwater.
It rejected Representative Aspin’s amendment that would have extended the permitting
provision to groundwater. Instead, Congress provided a set of more specific groundwaterrelated measures such as those requiring States to maintain “affirmative controls over the
injection or placement in wells” of “any pollutants that may affect ground water.” *** These
specific state-related programs were, in the words of the Senate Public Works Committee,
“designed to protect ground waters and eliminate the use of deep well disposal as an
uncontrolled alternative to toxic and pollution control.” *** The upshot is that Congress
was fully aware of the need to address groundwater pollution, but it satisfied that need
through a variety of state-specific controls. Congress left general groundwater regulatory
authority to the States; its failure to include groundwater in the general EPA permitting
provision was deliberate.
Finally, longstanding regulatory practice undermines the Ninth Circuit’s broad
interpretation of the statute. EPA itself for many years has applied the permitting provision
to pollution discharges from point sources that reached navigable waters only after
traveling through groundwater. *** But, in doing so, EPA followed a narrower
interpretation than that of the Ninth Circuit. *** EPA has opposed applying the Act’s
permitting requirements to discharges that reach groundwater only after lengthy periods.
*** Indeed, in this very case (prior to its recent Interpretive Statement ***), EPA asked the
Ninth Circuit to apply a more limited “direct hydrological connection” test. *** The Ninth
Circuit did not accept this suggestion.
We do not defer here to EPA’s interpretation of the statute embodied in this practice.
Indeed, EPA itself has changed its mind about the meaning of the statutory provision. ***
But this history, by showing that a comparatively narrow view of the statute is
administratively workable, offers some additional support for the view that Congress did
not intend as broad a delegation of regulatory authority as the Ninth Circuit test would
allow.

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As we have said, the specific meaning of the word “from” necessarily draws its meaning
from context. The apparent breadth of the Ninth Circuit’s “fairly traceable” approach is
inconsistent with the context we have just described.
IV
A
Maui and the Solicitor General argue that the statute’s permitting requirement does not
apply if a pollutant, having emerged from a “point source,” must travel through any amount
of groundwater before reaching navigable waters. That interpretation is too narrow, for it
would risk serious interference with EPA’s ability to regulate ordinary point source
discharges.
Consider a pipe that spews pollution directly into coastal waters. There is an “addition of
” a “pollutant to navigable waters from [a] point source.” Hence, a permit is required. But
Maui and the Government read the permitting requirement not to apply if there is any
amount of groundwater between the end of the pipe and the edge of the navigable water.
*** If that is the correct interpretation of the statute, then why could not the pipe’s owner,
seeking to avoid the permit requirement, simply move the pipe back, perhaps only a few
yards, so that the pollution must travel through at least some groundwater before reaching
the sea? *** We do not see how Congress could have intended to create such a large
and obvious loophole in one of the key regulatory innovations of the Clean Water Act. Cf.
California ex rel. State Water Resources Control Bd., 426 U. S., at 202–204 (basic
purpose of Clean Water Act is to regulate pollution at its source); The Emily, 9 Wheat.
381, 390 (1824) (rejecting an interpretation that would facilitate “evasion of the law”).
B
Maui argues that the statute’s language requires its reading. That language requires a
permit for a “discharge.” A “discharge” is “any addition” of a pollutant to navigable waters
“from any point source.” And a “point source” is “any discernible, confined and discrete
conveyance” (such as a pipe, ditch, well, etc.). Reading “from” and “conveyance”
together, Maui argues that the statutory meaning of “from any point source” is not about
where the pollution originated, but about how it got there. Under what Maui calls the
means-of-delivery test, a permit is required only if a point source itself ultimately delivers
the pollutant to navigable waters. Under this view, if the pollutant must travel through
groundwater to reach navigable waters, then it is the groundwater, not the pipe, that is
the conveyance.
Congress sometimes adopts less common meanings of common words, but this esoteric
definition of “from,” as connoting a means, does not remotely fit in this context. The statute

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couples the word “from” with the word “to”—strong evidence that Congress was referring
to a destination (“navigable waters”) and an origin (“any point source”). Further
underscoring that Congress intended this every day meaning is that the object of “from”
is a “point source”—a source, again, connoting an origin. That Maui’s proffered
interpretation would also create a serious loophole in the permitting regime also indicates
it is an unreasonable one.
***
E
For the reasons set forth in Part III and in this Part, we conclude that, in light of the
statute’s language, structure, and purposes, the interpretations offered by the parties, the
Government, and the dissents are too extreme.
V
Over the years, courts and EPA have tried to find general language that will reflect a
middle ground between these extremes. The statute’s words reflect Congress’ basic aim
to provide federal regulation of identifiable sources of pollutants entering navigable waters
without undermining the States’ longstanding regulatory authority over land and
groundwater. We hold that the statute requires a permit when there is a direct discharge
from a point source into navigable waters or when there is the functional equivalent of a
direct discharge. We think this phrase best captures, in broad terms, those circumstances
in which Congress intended to require a federal permit. That is, an addition falls within the
statutory requirement that it be “from any point source” when a point source directly
deposits pollutants into navigable waters, or when the discharge reaches the same result
through roughly similar means.
Time and distance are obviously important. Where a pipe ends a few feet from navigable
waters and the pipe emits pollutants that travel those few feet through groundwater (or
over the beach), the permitting requirement clearly applies. If the pipe ends 50 miles from
navigable waters and the pipe emits pollutants that travel with groundwater, mix with
much other material, and end up in navigable waters only many years later, the permitting
requirements likely do not apply.
The object in a given scenario will be to advance, in a manner consistent with the statute’s
language, the statutory purposes that Congress sought to achieve. As we have said
(repeatedly), the word “from” seeks a “point source” origin, and context imposes natural
limits as to when a point source can properly be considered the origin of pollution that
travels through groundwater. That context includes the need, reflected in the statute, to
preserve state regulation of groundwater and other nonpoint sources of pollution.
Whether pollutants that arrive at navigable waters after traveling through groundwater are

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“from” a point source depends upon how similar to (or different from) the particular
discharge is to a direct discharge.
The difficulty with this approach, we recognize, is that it does not, on its own, clearly
explain how to deal with middle instances. But there are too many potentially relevant
factors applicable to factually different cases for this Court now to use more specific
language. Consider, for example, just some of the factors that may prove relevant
(depending upon the circumstances of a particular case): (1) transit time, (2) distance
traveled, (3) the nature of the material through which the pollutant travels, (4) the extent
to which the pollutant is diluted or chemically changed as it travels, (5) the amount of
pollutant entering the navigable waters relative to the amount of the pollutant that leaves
the point source, (6) the manner by or area in which the pollutant enters the navigable
waters, (7) the degree to which the pollution (at that point) has maintained its specific
identity. Time and distance will be the most important factors in most cases, but not
necessarily every case.
At the same time, courts can provide guidance through decisions in individual cases. The
Circuits have tried to do so, often using general language somewhat similar to the
language we have used. And the traditional common-law method, making decisions that
provide examples that in turn lead to ever more refined principles, is sometimes useful,
even in an era of statutes.
The underlying statutory objectives also provide guidance. Decisions should not create
serious risks either of undermining state regulation of groundwater or of creating
loopholes that undermine the statute’s basic federal regulatory objectives.
EPA, too, can provide administrative guidance (within statutory boundaries) in numerous
ways, including through, for example, grants of individual permits, promulgation of general
permits, or the development of general rules. Indeed, over the years, EPA and the States
have often considered the Act’s application to discharges through groundwater.
Both Maui and the Government object that to subject discharges to navigable waters
through groundwater to the statute’s permitting requirements, as our interpretation will
sometimes do, would vastly expand the scope of the statute, perhaps requiring permits
for each of the 650,000 wells like petitioner’s or for each of the over 20 million septic
systems used in many Americans’ homes. ***
But EPA has applied the permitting provision to some (but not to all) discharges through
groundwater for over 30 years. *** In that time we have seen no evidence of
unmanageable expansion. EPA and the States also have tools to mitigate those harms,
should they arise, by (for example) developing general permits for recurring situations or
by issuing permits based on best practices where appropriate. See, e.g., 40 CFR

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§ 122.44(k) (2019). Judges, too, can mitigate any hardship or injustice when they apply
the statute’s penalty provision. That provision vests courts with broad discretion to set a
penalty that takes account of many factors, including “any good-faith efforts to comply”
with the Act, the “seriousness of the violation,” the “economic impact of the penalty on the
violator,” and “such other matters as justice may require.” See 33 U. S. C. §1319(d). We
expect that district judges will exercise their discretion mindful, as we are, of the
complexities inherent to the context of indirect discharges through groundwater, so as to
calibrate the Act’s penalties when, for example, a party could reasonably have thought
that a permit was not required.
In sum, we recognize that a more absolute position, such as the means-of-delivery test
or that of the Government or that of the Ninth Circuit, may be easier to administer. But,
as we have said, those positions have consequences that are inconsistent with major
congressional objectives, as revealed by the statute’s language, structure, and purposes.
We consequently understand the permitting requirement, §301, as applicable to a
discharge (from a point source) of pollutants that reach navigable waters after traveling
through groundwater if that discharge is the functional equivalent of a direct discharge
from the point source into navigable waters.
VI
Because the Ninth Circuit applied a different standard, we vacate its judgment and
remand the case for further proceedings consistent with this opinion.
It is so ordered.
Questions and Comments
1.

Discharges through groundwater: Scientific studies demonstrated that
pollutants that originated at the County’s wastewater reclamation facility migrated
through the groundwater into nearby coastal waters. However, the County
discharged its wastewater into the groundwater through injection wells and did not
discharge its wastewater directly into the coastal waters. EPA has consistently
taken the position that groundwater is not included in the definition of “waters of
the United States,” so the discharge in the case was an indirect discharge into
navigable waters, rather than a direct discharge. When did the environmental
groups argue that the federal government should be able to regulate such
discharges? When did the County argue that the federal government should be
able to regulate such discharges? Did EPA agree with the environmental groups
or the County or did the agency propose a different test?

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2.

Proximate Cause: In interpreting the Endangered Species Act and the National
Environmental Policy Act, the Supreme Court has incorporated the tort concept of
proximate cause into statutory language. See, e.g., Department of Transportation
v. Public Citizen, 541 U.S. 752 (2004) (agencies are only required to consider
“effects” in determining whether to conduct an environmental impact statement for
an action when the effects are proximately caused by the action being considered);
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687
(1995) (Endangered Species Act prohibition on harm caused by actions that
indirectly injure species limited to situations where the actions proximately cause
the injury). However, the Court refuses to create a test for “addition of a pollutant”
in the Maui case because it holds that principles of proximate causation do not
significantly narrow the “fairly traceable” test. Do you agree? What absurd readings
of the statute does the Court suggest could result if it adopted the “fairly traceable”
test?

3.

Groundwater v. unregulated surface water: Although the case involved
discharge of pollutants through groundwater to navigable waters, the scope of the
Court’s holding could extend further. The majority, for instance, indicated that the
question presented as whether the Clean Water Act “requires a permit when
pollutants originate from a point source but are conveyed to navigable water by
a nonpoint source”. Similarly, Justice Kavanaugh, in his concurring opinion cites
Justice Scalia’s plurality opinion in Rapanos as support for Clean Water Act
jurisdiction over discharges from point sources into unregulated surface waters
that convey the pollutants into navigable waters.

4.

Textualism v. Purposivism: Does the Court interpret the statute using textualism,
purposivism, or some other theory? What purposes of the Clean Water Act does
the Court identify and how do those purposes influence the way it interprets the
scope of federal jurisdiction over “discharges” to navigable waters? What absurd
reading of the statute does the Court suggest could result if it adopted the County’s
textualist interpretation of the statute?

5.

Chevron deference: Shortly before the Supreme Court decided the Maui case,
EPA adopted an “interpretive statement” that indicated that discharges into
groundwater are not regulated under the Clean Water Act. Did the Court accord
the agency’s interpretation Chevron deference or any other deference? Why or
why not?

6.

The Court’s test: The majority ultimately concludes that the statute requires a
permit whenever there is “the functional equivalent of a direct discharge” of
pollution from a point source to navigable waters. How easy is it to identify when a
discharge is the functional equivalent of a direct discharge? What factors should

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be considered? Justice Alito, in dissent, argues that the Court’s test “provides no
clear guidance and invites arbitrary and inconsistent application.” How does the
majority defend the test in response to that criticism? On January 14, 2021, EPA
issued a guidance document to clarify the scope of federal jurisdiction in light of
the Court’s decision. See U.S. Environmental Protection Agency, Applying the
Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean
Water Act Section 402 National Pollutant Discharge Elimination System (NPDES)
Permit Program, 86 Fed. Reg. 6321 (Jan. 21, 2021).

Chapter Quiz
Now that you’ve finished the material covering activities regulated under Section
404, why not try a CALI Lesson on the material at http://cca.li/PV. It should only
take about a half hour or less.

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Chapter 6
Section 404 Permits
The cornerstone of federal wetlands protection is the Clean Water Act Section 404 permit
program. Chapters 4 and 5 of this book outlined the scope of activities that require a
Section 404 permit, but this Chapter will begin with a brief explanation of a few statutory
exemptions to the permit requirement that were not discussed in those chapters. Most of
the chapter, though, focuses on the processes and standards for the two types of Section
404 permits: General Permits and Individual Permits.

I.

Permit Exemptions

Section 404(f)(1) of the
Clean Water Act exempts
from the Section 404 permit
requirement several categories of activities that are
primarily associated with
farming. Section
404(f)(1)(A), for instance,
exempts dis-charges
associated with “normal
farming, silviculture, and
ranching activities such as
plowing, seeding, cultivating, minor drainage,
har-vesting for the
production of food, fiber
and forest pro-ducts, or
upland soil and water
conservation projects”. The Photo 26 USDA Photo http://commons.wikimedia.org/wiki/File:GreenCountyWI.jpg
exemptions in Section
404(f)(1), though, are tem-pered by a “recapture” pro-vision in Section 404(f)(2), which
requires a permit for the activities if they are carried out for the purpose of changing the
use of the property and they impair the flow or circulation of navigable waters or reduce
their reach. The exemption for “normal farming, silviculture and ranching activities” is

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described in the following excerpt.

United States v. Huebner
752 F.2d 1235
(7th Cir. 1985)

Resources for the Case
Unedited opinion (From Justia)
Google Map of all the cases in the coursebook

Bauer, Circuit Judge
In 1978, pursuant to litigation commenced under the Clean Water Act (CWA), * * * by the
United States Army Corps of Engineers (Corps), defendants Roland G. Huebner, William
Huebner and the Petenwell Potato Farms (Huebners), entered into a consent decree with
the Corps regarding the maintenance of the wetlands on their property. In 1983, following
a six-day hearing, the district court found the Huebners in contempt of the 1978 order and
ordered them to comply with a restoration plan developed by the Corps. The Huebners
appeal the lower court's contempt order and restoration plan. We affirm the district court's
finding of contempt * * *
In 1977, the Huebners, owners of a 4,000 acre vegetable farm, acquired "Bear Bluff
Farms," a 5,000 acre property in Jackson County, Wisconsin, the largest continuous area
of wetlands in Wisconsin. * * * Since the turn of the century Bear Bluff has been used
intermittently for a variety of agricultural purposes, including the production of dryland
crops, such as corn and oats. For the twenty years preceding the Huebners' ownership,
however, only cranberries have been grown on the land. * * * The record indicates that
the Huebners intended to expand the cranberry operations of Bear Bluff Farms and to
use a portion of the farm for growing vegetables and other upland crops.
In 1977, the Huebners began to plow sections of the farm to clear out existing ditches
and dig new ones. On September 2, 1977, the St. Paul District of the United States Army
Corps of Engineers issued several cease and desist orders to the Huebners, alleging that
their ditching activities constituted a permitless "discharge of dredged or fill material" into
the Bear Bluff wetlands in violation of section 301 of the Federal Water Pollution Control
Act, * * * On November 10, 1977 the Corps filed a complaint in the district court seeking
a permanent injunction and a financial penalty against the Huebners. In June, 1978 the
parties settled the action by entering into a consent decree approved by District Judge
James E. Doyle.
The Huebners complied with the immediate restoration provisions of the consent order.
On November 16, 1982, however, the government moved for an order to show cause why
the Huebners should not be held in contempt for violating the 1978 order. The
government, through its affidavits, charged that dredged material had been placed on the
sides of Beaver Creek and was sliding into the adjacent wetlands, that a portion of the

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wetland had been plowed and furrowed by a marsh plow, and that the dikes of the
Hunter's Peak, Juleane and Unnamed Reservoirs had been leveled and scraped by a
bulldozer without notice to the Corps and without any Corps permit allowing such activity.
The Huebners had planted barley in a plowed portion of the Hunter's Peak, and stated
that they intended to plant corn.5 * * *
On August 4, 1983 the district court entered an order holding the Huebners in civil
contempt of the court's 1978 consent order on the grounds that the government had
proved by "clear and convincing evidence" that the Huebners had made permitless
discharges of dredged and fill material into the Bear Bluff wetlands in violation of the 1978
order. The Huebners allege that they are not in contempt of the district court's 1978 order
because the activities in which they engaged in on their land did not require a Corps
permit. They allege that the district court erred in its interpretation of the agricultural
exemptions of the CWA, as relevant to the 1978 consent order, in determining when
permits are required. * * *
The Huebners did not challenge the authority of the Corps to regulate parts of Bear Bluff
Farms as wetlands in the district court, but argued that their activities were exempt from
the CWA's permit process under Section 1344(f)(1). The district court held that the phrase
"discharge of dredged or fill material" in the 1978 consent order incorporated the legal
meaning of those terms under the CWA and therefore the question of whether the
Huebners' permitless activities violated the terms of the 1978 consent decree hinged on
the court's interpretation of the scope of Section 1344(f)(1)'s exemptions. The district
court held that "[i]t is clear that the amendments that created the subsection (f) exceptions
on which defendants rely were not intended to exempt all farming operations from the
permit requirements, but only those whose effect upon wetlands or other waters was so
minimal as not to warrant federal review and supervision." R. 118, Order at 17-18. The
court then analyzed the defendants' actions in light of the purposes of the Clean Water
Act, the intent of Congress in enacting the farming exceptions, and the terms of the 1978
order. Our review of the legislative history confirms the conclusion reached by the lower
court.
Section 1344(f)(1) provides exemptions from the permit process for discharges into
wetlands caused by agricultural activities, such as plowing and the maintenance of dikes,
ponds, and farm roads.* * * The exceptions of Section 1344(f)(1) are subject to section
1344(f)(2), however, which provides that discharges are not exempt from the permit
process if they bring "an area of the navigable waters into a use to which it was not
previously subject, where the flow or circulation of navigable waters may be impaired or
5

The Huebners stated that they needed an immediate cash crop to pay for the equipment
costs of their dredge and fill activities. R. 51. Cranberries take several years to become
fully productive.
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the reach of such waters be reduced."
Our review of the legislative history of the agricultural exemptions convinces us that
because of the significance of inland wetlands, which make up eighty-five percent of the
nation's wetlands, * * * Congress intended that Section 1344(f)(1) exempt from the permit
process only "narrowly defined activities ... that cause little or no adverse effects either
individually or cumulatively [and which do not] convert more extensive areas of water into
dry land or impede circulation or reduce the reach and size of the water body."
3 LEGISLATIVE HISTORY at 420 (statement of Rep. Harsha, member of the conference
committee, during House debates). See also id. at 474. The Fifth Circuit also has held
that Sec. 1344(f)(1) was designed to be a "narrow exemption." Avoyelles Sportsmen's
League, Inc. v. Marsh, 715 F.2d 897, 925 n.44 (5th Cir.1983).
Recognizing that "there has been widespread concern that many activities that are
normally considered routine would be prohibited or made extremely difficult because of
the complex regulatory procedures," 4 LEGISLATIVE HISTORY 897 (statement of Sen.
Randolph), Congress enacted in the 1977 amendments a delicate balance of exceptions
that protected wetlands while permitting routine activities to go on unimpeded.
The drainages exemption is very clearly intended to put to rest, once and for all, the fears
that permits are required for draining poorly drained farm or forest land of which millions
of acres exist. No permits are required for such drainage. Permits are required only where
ditches or channels are dredged in a swamp, marsh, bog or other truly aquatic area.
4 LEGISLATIVE HISTORY 1042 (statement of Sen. Muskie). * * * We therefore affirm the
district court's narrow interpretation of the agricultural exemptions and its incorporation of
the purpose of those exemptions into the finding of contempt against the Huebners for
violation of the 1978 consent decree.
Questions and Comments
1.

Note that the court interpreted the exemption in Section 404(f)(1) narrowly to only
exempt activities that “cause little or no adverse effects” on waters of the United
States. Other Circuits have taken a similar approach. See Borden Ranch
Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001), aff’d by
an equally divided court, 537 U.S. 99 (2002); United States v. Larkins, 852 F.2d
189 (6th Cir. 1988). Note, also, that the recapture provision of Section 404(f)(2)
focuses on both the purpose of an activity (“bringing an area of the navigable
waters into a use to which it was not previously subject”) and the effect of the
activity (“where the flow or circulation of navigable waters may be impaired or the
reach of such waters be reduced”). For a more general outline of the environmental
regulation of farming, see J.B. Ruhl, Farms, Their Environmental Harms, and
Environmental Law, 27 Ecology L. Q. 263 (2000).

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2.

Other exemptions: Section 404(f)(1) also exempts, from the Section 404 permit
requirement, discharges associated with maintenance of dikes, dams, levees, and
similar structures (404(f)(1)(B)); construction or maintenance of farm or stock
ponds or irrigation ditches or maintenance of drainage ditches (404(f)(1)(C));
construction of temporary sedimentation basins (404(f)(1)(D)); construction of
various farm, forest, or mining roads constructed in accordance with best
management practices (404(f)(1)(E)); and discharges from activities with respect
to approved non-point source programs (404(f)(1)(F)).

3.

Regulations and guidance: The Corps regulations implementing the Section
404(f)(1) exemptions are codified at 33 C.F.R. § 323.4 In addition, in May 1990,
EPA and the Corps issued a joint memorandum addressing the exemptions. See
U.S. Environmental Protection Agency, U.S. Department of the Army,
Memorandum: Clean Water Act Section 404 Regulatory Program and Agricultural
Activities (May 1990). The regulations and memo make it clear that farmers who
have been farming wetlands as part of an established, ongoing operation do not
have to obtain a Section 404 permit for those activities as long as the farmer
doesn’t convert the wetlands to dray land. Id.

4.

Interaction with Swampbuster: The Corps regulatory definition of “waters of the
United States” excludes “prior converted cropland.” 33 C.F.R. § 328.3(a)(8). Thus,
if a wetland was converted to cropland prior to the enactment of the Food Security
Act, see Chapter 2, infra, and meets the definition of “prior converted cropland”, a
Section 404 permit is not required for activities in that cropland. However, although
the Natural Resources Conservation Agency makes determinations regarding the
delineation of wetlands and the application of the Swampbuster provisions to
farmers, see Chapter 2, infra, the Corps’ regulations explicitly provide that
“Notwithstanding the determination of an area's status as prior converted cropland
by any other Federal agency, for the purposes of the Clean Water Act, the final
authority regarding Clean Water Act jurisdiction remains with EPA.” 33 C.F.R.
§ 328.3(a)(8).

II.

Nationwide and Other General Permits

Five years after Congress created the Section 404 permit program, it amended the Clean
Water Act to authorize the Corps of Engineers to approve the discharge of dredged or fill
material through general permits, in addition to individual permits. See 33 U.S.C.
§ 1344(e). Unlike individual permits, persons can often engage in the activities authorized
by a general permit without applying to the Corps of Engineers for an individualized review
of their activities and the effect of their activities on the environment. Instead, as long as
the persons are engaged in activities authorized by the general permit and are complying

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with any terms or conditions of the permit, they do not need to obtain an individual Section
404 permit. For instance, the Corps of Engineers has issued nationwide general permits
that authorize landowners to construct temporary recreational structures, reshape
drainage ditches, build boat ramps and engage in a variety of other activities without
applying for individual Section 404 permits, as long as they comply with the conditions in
the nationwide general permit. See U.S. Army Corps of Engineers, 2017 Nationwide
Permits, Conditions, District Engineer’s Decision, Further Information, and Definitions.
Landowners can save significant time and money if their activities are authorized by a
general permit. Even though some general permits require individualized review, as
described below, the average time for processing nationwide general permits in 2010 was
32 days, compared to an average of 221 days for processing individual permit
applications. See U.S. Army Corps of Engineers, Reissuance of Nationwide Permits, 77
Fed. Reg. 10184, 10190 (Feb. 21, 2012). Regarding cost, a 2002 study found that the
cost of preparing the documentation necessary to undertake activities authorized by a
nationwide permit was about 1/10 the cost of preparing the documentation necessary for
an individual permit. See David Sunding & David Zilberman, The Economics of
Environmental Regulation by Licensing: An Assessment of Recent Changes to the
Wetland Permitting Process, 42 Nat. Res. J. 59, 74 (2002).
Most of the discharges of dredged or fill material that take place every year are authorized
by general permits, rather than individual permits. In 2007 and 2008, for instance,
approximately 95% of the discharges that were authorized by a Section 404 permit were
authorized by a general permit, rather than an individual permit. See Royal C. Gardner,
Lawyers, Swamps, and Money 102 (Island Press, 2011). There are currently 56
Nationwide permits in force, in addition to regional and State-wide general permits. See
U.S. Army Corps of Engineers, 2021 Nationwide Permits Final Rule Summary Chart.
While general permits provide many advantages for landowners, the Clean Water Act
limits the duration of nationwide permits and other general permits to five years. See 33
U.S.C. § 1344(e)(2). In addition, the Corps has the authority to revoke or modify general
permits if it determines, after opportunity for a public hearing, “that the activities
authorized by the general permit have an adverse impact on the environment or such
activities are more appropriately authorized by individual permits.” Id. Both the Corps and
EPA have adopted general permit regulations. See 33 C.F.R. Part 325 (Corps’
regulations); 40 C.F.R. § 230.7 (EPA’s regulations).
The most recent revisions to the nationwide permits were issued in January 2021, just
days before the end of the Trump Administration. The revisions were issued earlier than
the normal five year schedule, so that the Administration could make changes consistent
with its pre-development policies. The rule revised 12 permits, created 4 new permits
(primarily for oil and gas pipeline development) and left the remaining 40 permits
unchanged. See 86 Fed. Reg. 2744 (Jan. 13, 2021). The current nationwide permits are

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accessible on the Corps website.
A.

Issuance of General Permits

The Clean Water Act authorizes the Corps of Engineers, “after notice and opportunity for
public hearing” to issue general permits “on a State, regional or nationwide basis”, 33
U.S.C. § 1344(e), and the agency has issued all of those types of permits. The three
categories of general permits that the Corps issues are: (1) nationwide permits; (2) state
and regional permits; and (3) programmatic general permits. See 33 C.F.R.
§ 325.5(c). Nationwide permits authorize dredge and fill activities on a national basis
and the agency issues those permits through the traditional notice and comment
rulemaking process. See 33 C.F.R. § 330.1(b). While nationwide permits are developed
at the Corps’ headquarters, state and regional permits are issued by the district or
division offices of the Corps of Engineers after a public notice and authorize activities
within the State or region that issued the permit. See 33 C.F.R. § 325.3. Programmatic
general permits are founded on existing federal, state or local programs to avoid
duplication with those programs, so they may be issued on a national, state or regional
level. See 33 C.F.R. § 325.5. In addition to general permits, the Corps authorizes some
activities through letters of permission, another streamlined alternative to individual
permits. Id. § 325.5(b)(2). The abbreviated procedures for letters of permission do not
include a public notice. See 33 C.F.R. § 325.2(e)(1).
Questions and Comments
1.

Public participation: The level and tone of public comments on the nationwide
permits has evolved significantly over the years. The first nationwide permits were
issued by the Corps in 1977 and the Corps received 163 comments on the
proposal, most of which were positive comments. See 42 Fed. Reg. 37122, 37130
(July 19, 1977). When the permits were reissued in 1996, the Corps received 4000
comments after one national public hearing and six regional public hearings. See
61 Fed. Reg. 65874 (Dec. 13, 1996). By 2007, the number of public comments
grew to 22,500, see 72 Fed. Reg. 11092 (March 12, 2007), and in 2017, the Corps
received 54,000 comments when it reissued the nationwide permits. See 82 Fed.
Reg. 1860 (Jan. 6, 2017). A significant portion of the comments that the Corps
received over the last decade were critical of various provisions of the program.
How might that impact the time or resources required by the agency to reissue
nationwide permits?

2.

Publication of the permits: Until 1996, the nationwide general permits issued by
the Corps of Engineers were published in the Federal Register as an Appendix to
the nationwide permit regulations at 33 C.F.R. § 330. When the permits were
reissued in 1996, however, the agency indicated that from that time forward, the

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nationwide permits would be published in the Federal Register and announced
with regional conditions in the public notices issued by the Corps' district offices
and posted on the Internet. See 61 Fed. Reg. 65874 (Dec. 13, 1996). What are the
advantages of publication in that manner?
3.

Challenging NWPs: Is the issuance of nationwide permits a final agency action
that can be challenged in court? See National Association of Home Builders v.
U.S. Army Corps of Engineers, 417 F.3d 1272 (D.C. Cir. 2005). What other
impediments might litigants face if they wanted to make a facial challenge to
nationwide permits immediately upon their adoption?

B.

Conditions of General Permits

Although general permits are issued through a different process than individual permits
and authorize activities by numerous actors, as opposed to a single applicant, general
permits are still Section 404 permits and must comply with the legal requirements that
apply to those permits. Accordingly, general permits will include conditions that are
necessary to comply with the requirements of the Clean Water Act and any other
applicable laws. In some cases, the conditions will even require an individualized review
by the Corps of the prospective permittee’s proposed activities.
Most significantly, the permits must include conditions to comply with the Section
404(b)(1) guidelines, described in the next section, that were developed by EPA and the
Corps to establish the standards that apply to the review and issuance of all Section 404
permits. See 33 U.S.C. § 1344(e)(1)(A). Thus, some general permits may require
landowners to mitigate the harm to wetlands caused by their activities by creating,
restoring, enhancing or preserving other wetlands. See Chapter 7, infra.
In addition, as outlined in Part III of this Chapter, depending on the nature and location of
the activity being authorized by the Corps, the Coastal Zone Management Act, 16
U.S.C. §§ 1451, et seq., the Endangered Species Act, 16 U.S.C. §§ 1531, et seq., the
National Historic Preservation Act, 16 U.S.C. §§ 470, et seq., and other laws may
require the Corps to consult with other agencies or may impose limits on the scope of the
activities the Corps can authorize when it issues Section 404 permits. In order to comply
with those laws, the Corps may consult with the other agencies as part of the process for
issuing the general permits and the Corps will include conditions in the general permits
required by the other laws or suggested by the agencies through the consultation process.
See U.S. Army Corps of Engineers, 2017 Nationwide Permits, Conditions, District
Engineer’s Decision, Further Information, and Definitions .
For instance, the Clean Water Act includes a process, Section 401 certification,

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whereby States can veto or impose conditions on a variety of federal permits, including
Section 404 permits, to ensure that the permits comply with State water quality standards.
See 33 U.S.C. § 1341. To comply with that process, the Corps will frequently seek 401
certification from States when developing a general permit and the Corps is required to
seek such certification before issuing a nationwide permit. See 33 C.F.R. § 330.4(c)(1).
While States can certify that the general permit, as proposed, will meet their water quality
standards, they can also refuse certification (in essence, prohibiting the use of the general
permit in their State) or they can require the Corps to include conditions in the general
permit to comply with State water quality standards (including a condition that requires
approval from the State for individual projects that will be conducted under the general
permit.) Id. § 330.4(c). The Corps of Engineers issued a Regulatory Guidance Letter in
1992 to address the relationship between general permits and the Section 401
certification process, including the conditions that States could appropriately include in
those permits. See U.S. Army Corps of Engineers, RGL 92-04, Section 401 Water Quality
Certification and Coastal Zone Management Act Conditions for Nationwide Permits (Sept.
1992).
When developing general permits, the Corps engages in similar consultation with States
that have approved Coastal Zone Management Plans to ensure that the permits include
conditions necessary to comply with the Coastal Zone Management Act. Id. While the
Corps consults with States and other agencies when developing general permits if
another statute requires the Corps to consult when issuing permits, a Corps nationwide
permit might not incorporate conditions to comply with all federal, state and local laws, so
the agency’s regulations clearly provide that nationwide permits “do not obviate the need
to obtain other Federal, state or local permits, approvals or authorizations required by
law.” See 33 C.F.R. § 330.4(b)(2).
In addition to the conditions described above, the Corps frequently includes a condition
in general permits that requires persons who intend to undertake activities authorized by
the permit to notify the Corps prior to undertaking those activities (provide a “preconstruction notification”). See U.S. Army Corps of Engineers, 2017 Nationwide
Permits, Conditions, District Engineer’s Decision, Further Information, and Definitions 50.
In some cases, the permit also includes a condition that precludes persons from
undertaking actions authorized by the permit until the Corps has reviewed and approved
their proposed action. Id. at 50-55. Even in those cases, though, the process for the
landowner is faster than the individual Section 404 permit process.
Questions and Comments
1.

National Environmental Policy Act compliance: The National Environmental
Policy Act requires federal agencies to prepare an environmental impact
statement (EIS) for major federal actions that significantly affect the quality of the

248

human environment, see 42 U.S.C. § 4332(2)(C). The EIS examines the
environmental effects of the proposed agency action and alternatives to the
agency action and is developed with public participation. Id. If it is not clear whether
an action will have a sufficient impact on the environment to require the preparation
of an EIS, agencies generally are required to prepare an environmental
assessment (EA) to determine if an environmental impact statement is necessary.
See 40 C.F.R. § 1501.4. An EA is a more streamlined study of the effects of the
action and alternatives. Id. § 1508.9. When the agency completes the EA, it will
either determine that the impacts of the action are not significant enough to require
an EIS and it will issue a “finding of no significant impact” (FONSI) or it will
determine that an EIS is necessary, and it will prepare one. Id. § 1501.4. Since the
issuance of a permit is a federal action under NEPA, the Corps must prepare an
EIS or EA when issuing a Section 404 permit, either as an individual permit or a
general permit.
When the Corps issues nationwide permits or other general permits, it usually
prepares an EA or EIS for the permit before it provides notice of the proposed
permit and the Corps provides for the public participation required by NEPA as part
of the development of the permit. See 33 C.F.R. § 330.5(b)(3). Even though the
Corps generally prepares at least an EA when issuing a nationwide permit, courts
have invalidated several of the Corps’ general permits on the grounds that the
agency failed to prepare adequate environmental analyses under NEPA.
For instance, NWP 29, the nationwide permit that the Corps issued to authorize
discharges for construction of single family housing was invalidated in 1998 in
Alaska Center for the Environment v. West, 31 F. Supp. 714 (D. Alaska 1998), but
it was subsequently reissued in a modified form. More recently, the United States
Court of Appeals for the Sixth Circuit invalidated NWP 21, the nationwide surface
coal mining permits that authorized the discharges associated with valley fills
discussed in Chapter 5 of this book, see Kentucky Riverkeeper, Inc. v. Rowelette,
714 F.3d 402 (6th Cir. 2013).
2.

Modification, Suspension or Revocation of NWPs: As noted above, the Corps
has statutory authority to revoke or modify general permits if the agency
determines that the activities authorized by the permit have an adverse impact on
the environment or are more appropriately authorized by individual permits. See
33 U.S.C. § 1344(e)(2). Accordingly, the Corps’ regulations for nationwide permits
provide that the agency can modify the permits (by imposing additional or revised
terms or conditions on the permit), suspend the permits or revoke the permits for
a geographic area, class of activity, class of waters, or even for specific individual
activities. See 33 C.F.R. § 330.4(e).

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3.

Expiring RGLs: RGL 92-04, and some of the other RGLs cited in this book, may
have technically expired, but the Corps issued a regulatory guidance letter in 2005
that provides that many of the RGLs that technically have expired “provide useful
information and ... are still generally applicable to current program execution”. See
U.S. Army Corps of Engineers, RGL 05-06, Expired Regulatory Guidance Letters
2-3 (Dec. 7, 2005). RGL 92-04 and the other RGLs cited in this book are in the
category of RGLs listed in RGL 05-06 as “still generally applicable”. Id.

4.

ES Compliance: Shortly after the Corps issued the nationwide permits in 2017,
the Northern Plains Resource Council challenged NWP 12, which authorizes
discharges of fill material required for construction, maintenance, repair and
removal of utility lines, including oil and gas pipelines. In 2020, the District Court
of Montana determined that the Corps reissued NWP 12 in 2017 without consulting
the Fish and Wildlife Service as required by section 7(a)(2) of the Endangered
Species Act. Accordingly, the Court vacated NWP 12 and remanded it to the Corps
for compliance with the Endangered Species Act. See Northern Plains Resource
Council v. U.S. Army Corps of Engineers, No. CV-19-44-GF-BMM (D. Mont., Apr.
15, 2020). The court’s decision was affirmed by the Ninth Circuit, see Northern
Plains Resource Council v. U.S. Army Corps of Engineers, No. 20-35412 (9th Cir.,
May 28, 2021), but the Corps reissued NWP 12 as three separate nationwide
permits in 2021, without engaging in consultation under the Endangered Species
Act. Consequently, the Center for Biological Diversity sued the Corps for ignoring
the required consultation. See Center for Biological Diversity v. Spellmon, No. CV21-47-GF-BMM (D. Mont., May 3, 2021).

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Research Problems
1. The Wilson family live just outside of Savannah, Georgia on a 5 acre lot. George and Martha
Wilson would like to build a pond in a wet portion of their back yard to attract birds and other
wildlife. Unfortunately, in order to construct the pond, they will be placing fill material in the
wetlands on their property. The company that will be building the pond has indicated that the
construction will likely impact about 1 acre of wetlands and the surface area of the pond will be
about 2 acres. Before the Wilsons begin work on the pond, they have sought your advice
regarding whether they need to apply for an individual Section 404 permit or whether a national
or regional general permit might authorize their project. Assuming that the wetlands are
jurisdictional waters of the United States, please advise them accordingly. In addition, if the
construction of the pond may be authorized by a general permit, please advise them whether
they need to notify the Corps of Engineers before they begin the project and whether they will
need to provide any compensatory mitigation for the impacts to the wetlands.
2. The Mitchell family would like to build a new ocean-front home in Florida. Construction of the
foundation and building pad for the home will require an addition of fill material into tidal wetlands.
Can the Mitchell’s rely on a nationwide general permit to authorize the construction of their new
home? If so, do they need to notify the Corps of Engineers before they begin construction?

C.

Similar in Nature / Minimal Environmental Effects

There are limits on the activities that the Corps can authorize through general permits.
The Clean Water Act allows the agency to issue general permits for categories of activities
involving discharge of dredged or fill material if the agency determines that the activities
in such category are similar in nature, will cause only minimal adverse environmental
effects when performed separately, and will have only minimal cumulative adverse effect
on the environment. See 33 U.S.C. § 1344(e)(1).

Activities that Could Be Covered in a General Permit
•
•
•

Similar in nature
Minimal adverse effects by the activities individually and
Minimal adverse effects by the activities cumulatively

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The following case and notes explore the meaning and application of those terms.
Ohio Valley Environmental Coalition v.
Bulen

Resources for the Case
NWPs in effect at the time of the case
Unedited opinion (From Justia)
Google Map of all of the cases in the coursebook

429 F.3d 493 (4th Cir. 2005)
LUTTIG, Circuit Judge

This case presents the question whether the United States Army Corps of Engineers ("the
Corps") exceeded its authority under the Clean Water Act ("CWA") when it promulgated
Nationwide Permit 21 ("NWP 21"), a general permit for the discharge of dredged or fill
material into the waters of the United States that allows projects to proceed only after
receiving individualized authorization from the Corps. We conclude that the Corps
complied with the CWA when it promulgated NWP 21. The contrary judgment of the
district court is therefore vacated.
I
***
The Army Corps of Engineers has authority under the CWA to issue two types of permits
for the discharge of dredged or fill material: individual permits and general permits. The
Corps issues individual permits under section 404(a) on a case-by-case basis for
discharges at "specified disposal sites," after providing notice and opportunity for public
hearing. Id. § 1344(a). The Corps issues general permits, which authorize "categories of
activities" rather than individual projects, under section 404(e). * * *
Pursuant to section 404(e), the Corps has promulgated a number of general permits, all
but one of which authorize projects that comply with the permits' terms to proceed without
prior approval by the Corps. The exception, NWP 21 - which authorizes discharges of
dredged or fill material associated with surface coal mining and reclamation projects requires that projects be individually authorized by the Corps. NWP 21 authorizes:
discharges of dredged or fill material into waters of the U.S. associated with
surface coal mining and reclamation operations provided the coal mining activities
are authorized by the DOI, Office of Surface Mining (OSM), or by states with
approved programs under Title V of the Surface Mining Control and Reclamation
Act of 1977 and provided the permittee notifies the District Engineer in accordance

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with the "Notification" General Condition. In addition, to be authorized by this NWP,
the District Engineer must determine that the activity complies with the terms and
conditions of the NWP and that the adverse environmental effects are minimal both
individually and cumulatively and must notify the project sponsor of this
determination in writing.
Issuance of Nationwide Permits, 67 Fed.Reg.2020, 2081 (Jan. 15, 2002).
In this litigation, plaintiffs, a coalition of environmental groups, have raised various
challenges to NWP 21. The district court did not reach most of those challenges, holding
simply that NWP 21 is facially invalid under Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), because it conflicts with the unambiguous
meaning of section 404(e). * * * The district court accordingly suspended existing
authorizations under NWP 21 and enjoined the Corps from issuing further NWP 21
authorizations in the Southern District of West Virginia. * * * This appeal followed.
II
The district court concluded that NWP 21 conflicts with the unambiguous meaning of
section 404(e) for essentially four reasons. First, it concluded that NWP 21 "defines a
procedure instead of permitting a category of activities." * * * Second, it concluded that
section 404(e) "unambiguously requires determination of minimal impact before, not after,
the issuance of a nationwide permit," and that, in violation of this requirement, "NWP 21
provides for a post hoc, case-by-case evaluation of environmental impact." * * * [The
district court also concluded that the procedure used by the agency was inadequate and
that a condition included in the permit was in excess of the agency’s jurisdiction.] None
of these conclusions withstands scrutiny. * * *
A
The district court first concluded that NWP 21 fails to comply with section 404(e) because
it "defines a procedure instead of permitting a category of activities." * * * We disagree.
NWP 21 plainly authorizes a "category of activities." The category of activities authorized
by NWP 21 consists of those discharges of dredged or fill material that (1) are associated
with surface coal mining and reclamation operations, so long as those operations are
authorized by the Department of Interior or by states with approved programs under the
Surface Mining Control and Reclamation Act of 1977, (2) are preceded by notice to the
Corps, and (3) are approved by the Corps after the Corps concludes that the activity
complies with the terms of NWP 21 and that its adverse environmental effects are minimal
both individually and cumulatively. * * *
The district court erroneously reasoned that NWP 21 does not authorize a "category of

253

activities" because it is defined by procedural requirements "rather than objective
requirements or standards." * * * ("NWP 21 imposes no limit on the number of linear feet
of a stream, for example, that might be impacted by a valley fill or surface impoundment.
It does not limit the total acreage of a watershed that might be impacted."). As an initial
matter, we note that, by virtue of its incorporation of the requirements of the Surface
Mining Control and Reclamation Act ("SMCRA"), NWP 21 does contain substantive
requirements.1 More importantly, nothing in section 404(e) or in logic prohibits, much less
unambiguously prohibits, the use of procedural, in addition to substantive, parameters to
define a "category." The district court therefore erred when it concluded that NWP 21
does not define a "category of activities." * * *
B
The district court next concluded that NWP 21 violates the unambiguous terms of section
404(e) because it allows the Corps to defer the statutorily-required minimalenvironmental-impact determinations until after issuance of the nationwide permit. * * * 3
Section 404(e) allows the Corps to issue a general permit only "if [it] determines ... that
the activities in [the subject] category ... will cause only minimal adverse environmental
effects when performed separately, and will have only minimal cumulative adverse effect
on the environment." 33 U.S.C. § 1344(e). The district court concluded that the Corps did
not make the required minimal-impact determinations before issuing NWP 21, but instead
opted to make those determinations on a case-by-case basis after issuance of the permit.
***
It is clear from the record before us that the Corps did make the required minimal-impact
1

SMCRA imposes a host of "performance standards" on "all surface coal mining and
reclamation operations." 30 U.S.C. § 1265(b). For example, under SMCRA, all surface
coal mining operations must "minimize the disturbances to the prevailing hydrologic
balance at the mine-site and in associated offsite areas and to the quality and quantity of
water in surface and ground water systems both during and after surface coal mining
operations and during reclamation." Id. § 1265(b)(10).
3

The Corps argues that section 404(e) does not unambiguously require that the minimalimpact determinations be made before issuance of a nationwide permit. The Corps
believes that the statute allows it to issue a nationwide permit so long as it makes the
minimal-impact determinations before the permit is actually used to authorize discharges,
even if after issuance of the permit. At the very least, the Corps argues, section 404(e)'s
minimal impact determination requirement is temporally ambiguous, and the Corps'
reading is a permissible construction entitled to Chevron deference. Because we
conclude that the Corps made the required minimal-impact determinations before issuing
NWP 21, we do not reach these contentions.
254

determinations before it issued NWP 21. * * * The Decision Document for NWP 21 and
the supplement to that document, set forth at pages 469-512 of the Joint Appendix,
contain the Corps' pre-issuance analysis of the anticipated environmental impact of the
activities authorized by NWP 21. * * * The Corps' impact analysis took account of a variety
of factors, including public commentators' opinions, * * * NWP 21's incorporation of
SMCRA's requirements, * * * the nature of the coal-mining activities authorized by NWP
21, * * * the applicability of a variety of General Conditions to NWP 21, * * * and data about
usage of previous versions of NWP 21 * * * Based on these considerations and others,
the Corps concluded that the activities authorized by NWP 21 "will not result in significant
degradation of the aquatic environment." * * * This determination was sufficient to meet
the requirements of section 404(e).
The district court held that the Corps did not satisfy section 404(e) because it did not
provide an ex ante guarantee that the activities authorized by NWP 21 would have only
a minimal impact. The district court reasoned that, under section 404(e), "[t]he issuance
of a nationwide permit ... functions as a guarantee ab initio that every instance of the
permitted activity will meet the minimal impact standard," and that, by permitting the Corps
to engage in "post hoc, case-by-case evaluation of environmental impact," NWP 21 "runs
afoul of the statutory requirement of initial certainty." * * *
The district court erred. It is simply not the case that issuance of a general permit functions
as a guarantee ab initio that every instance of the permitted activity will have only a
minimal impact. * * *
For two reasons, we do not believe that an interpretation of section 404(e) that would
require initial certainty is tenable. First, section 404(e)(2) gives the Corps authority to
revoke or modify a general permit if, after issuing the permit, it "determines that the
activities authorized by such general permit have an adverse impact on the environment."
33 U.S.C. § 1344(e)(2). This provision demonstrates that Congress anticipated that the
Corps would make its initial minimal-impact determinations under conditions of
uncertainty and that those determinations would therefore sometimes be inaccurate,
resulting in general permits that authorize activities with more-than-minimal impacts. It
also demonstrates that Congress expected that the Corps would engage in post-issuance
policing of the activities authorized by general permits in order to ensure that their
environmental impacts are minimal. * * *
Second, it is impossible for the Corps' ex ante determinations of minimal impact to be
anything more than reasoned predictions. Even under the paradigmatic general permit
envisioned by the district court, where the parameters of the authorized activities are
delineated in objective, measurable terms, the Corps' minimal-impact determinations
would necessarily be a forecast only. This is so because the environmental impact of the
activities authorized by a general permit depends on factors that, as a practical matter,

255

are outside the Corps' ability to predict with certainty ex ante. This uncertainty is especially
acute when the Corps issues a nationwide permit like NWP 21 because the Corps must
attempt to forecast the environmental effects the authorized activities could have if
undertaken anywhere in the country under any set of circumstances. * * *
Nor can we agree with the district court's implicit conclusion that the Corps may not rely
on the availability of post-issuance procedures, such as NWP 21's requirement of postissuance individualized authorization, when it makes its pre-issuance minimal-impact
determinations. * * * The statute is silent on the question whether the Corps may make
its pre-issuance minimal impact determinations by relying in part on the fact that its postissuance procedures will ensure that the authorized projects will have only minimal
impacts. We must therefore defer to the Corps' conclusion that it may do so if that
conclusion is permissible in light of the statutory language and is reasonable. It is both.
***
In concluding that section 404(e) permits the Corps to rely in part on post-issuance
procedures to make its pre-issuance minimal-impact determinations, we do not suggest
that section 404(e) permits the Corps completely to defer the minimal-impact
determinations until after issuance of the permit. We would have substantial doubts about
the Corps' ability to issue a nationwide permit that relied solely on post-issuance, caseby-case determinations of minimal impact, with no general pre-issuance determinations.
In such a case, the Corps' "determinations" would consist of little more than its own
promise to obey the law. * * *
However, we are satisfied, based on our review of the Corps' decision document, that the
Corps did actually make, in advance, the minimal-impact determinations required by the
statute. It made those determinations after undertaking a good-faith, comprehensive, preissuance review of the anticipated environmental effects of the activities authorized by
NWP 21, and its partial reliance on post-issuance procedures to ensure minimal impacts
did not make those determinations any less valid. * * *
In sum, we conclude that the Corps complied with section 404(e) when it issued NWP 21.
* * * The contrary judgment of the district court and the injunction against NWP 21
authorizations are vacated and the case is remanded for further proceedings not
inconsistent with this opinion.
Questions and Comments
1.

Categories of activities that are similar in nature / scope and conditions: Are
there limits on the breadth of the categories of activities that can be regulated
through a general permit? In the case above, NWP 21 authorized discharges of
dredged or fill material associated with surface coal mining and reclamation

256

activities if the discharges were authorized under the Surface Mining Control and
Reclamation Act. While that category seems quite broad, the Corps narrowed it by
limiting authorization to discharges when the discharger notifies the Corps that it
plans to discharge under the permit and the Corps affirmatively authorizes the
discharge, after reviewing the potential environmental effects of the discharge.
Would the permit have sufficiently identified a category of activities that are similar
in nature without the notification and approval procedures? What concerns are
raised if the category of activities is defined too broadly? While courts have
frequently upheld the authorization of fairly broad categories of activities under
general permits, they usually have done so after concluding that the conditions in
the permit sufficiently narrow the categories so that they are “similar in nature.” In
addition to the instant case, see Sierra Club v. U.S. Army Corps of Engineers, 508
F.3d 1332 (11th Cir. 2007) (upholding a general permit to cover “suburban
development” activities over a 48,000 acre area based on the limiting conditions in
the permit, but recognizing concerns about circumvention of the notice and public
hearing requirements that would apply to individual permitting); Alaska Center for
the Environment v. West, 157 F.3d 680 (9th Cir. 1998) (upholding a general permit
that authorized discharges associated with construction of “residential buildings”
and a broad range of other activities in the City of Anchorage based on the limiting
conditions in the permit).
Prior to 1996, one of the most widely used nationwide permits that the Corps
issued was NWP 26, which authorized a broad range of activities in waters above
headwaters and in isolated waters. Many critics argued that the activities
authorized by that permit were not “similar in nature,” and the Corps replaced the
permit with a series of permits that addressed more narrowly tailored categories of
activities. See 61 Fed. Reg. 65874 (Dec. 13, 1996).
2.

Statutory / regulatory definition of “similar in nature”: Does “similar in nature”
refer to the nature of the projects, the nature of the effects, or both? Does the
statute define “similar in nature”? The 404(b)(1) guidelines (regulations) limit the
issuance of general permits to categories of activities where the activities are
similar in nature and similar in their impact on water quality and the aquatic
environment. See 40 C.F.R. § 230.7(a) If the statute is silent and there is a
regulation that interprets the statutory language, how does that impact judicial
review of the language? See Alaska Center for the Environment v. West, 157 F.3d
680 (9th Cir. 1998) (upholding Corps determination that a broad range of activities
authorized by the general permit were “similar in nature” because they would have
similar impacts, when limited by the conditions in the permit).

3.

Documentation: The 404(b)(1) guidelines require the Corps to prepare a written
evaluation of the individual and cumulative impacts of the activities that will be

257

authorized by a general permit, to demonstrate that they will be minimal, and an
explanation of why the activities to be authorized are “similar in nature” before the
agency issues the permit. See 40 C.F.R. § 230.7(b).
4.

Minimal impacts: In a footnote, in Ohio Valley Environmental Coalition v. Bulen,
the court indicated that it would not reach the Corps’ contention that the Clean
Water Act authorized the Corps to make the minimal impact determination for a
general permit after the permit is issued, as long as the determination is made
before the permit is used. If the court does not “reach the contentions”, does it
provide some guidance regarding whether the Corps’ interpretation of the statute
is reasonable?

5.

Post-issuance review: As noted above, many of the nationwide permits issued
by the Corps of Engineers include a “pre-construction notification” requirement, so
that persons who intend to take actions authorized by the permit must notify the
Corps prior to undertaking those actions. In most cases, if the actor provides that
notice and the Corps does not notify them within 45 days that they can’t proceed
with their activity, they can undertake the activity authorized by the permit even
though the Corps did not respond to their notice. See U.S. Army Corps of
Engineers, 2017 Nationwide Permits, Conditions, District Engineer’s Decision,
Further Information, and Definitions General Condition 32. In the Ohio Valley
Environmental Coalition v. Bulen case, above, the presumption was reversed for
NWP 21, so that persons could not undertake activities under the permit until the
Corps affirmatively authorized the activities.

6.

Should nationwide and other general permits include more stringent limits on the
total acreage of wetlands that can be filled under those permits? See Steven G.
Davison, General Permits Under Section 404 of the Clean Water Act, 26 Pace
Envtl. L. Rev. 35 (2009).

D.

Combining permits

In light of the fact that the Corps has issued many general permits on a national, regional,
or State-wide basis, questions arise regarding whether a landowner can rely on (1) a
combination of general permits; (2) multiple uses of a single general permit; or (3) a
combination of general permits and individual permits to authorize discharges of dredged
or fill material.
In situations where a project would require an individual Section 404 permit, the
permittee may be able to undertake a portion of the project through a general permit while
the Corps is processing the individual permit application but only if the portion of the
project that would be authorized by the general permit “would have independent utility”

258

and would be “able to function or meet [its] purpose independent of the total project.” See
33 C.F.R. § 330.6(d).
For situations where a developer would like to rely on multiple general permits, rather
than an individual permit, to authorize a project, the Corps allows persons to combine two
or more different nationwide permits, but only if they are being combined to authorize a
“single and complete project.” Id. § 330.6(c). If the activities being authorized by the
combination of general permits are really only part of a larger project and do not have
“independent utility”, they are not a “single and complete project” and the Corps’
regulations do not allow developers to combine general permits to authorize the activities.
See Crutchfield v. County of Hanover, Virginia, 325 F.3d 211 (4th Cir. 2003). Similarly, the
Corps’ regulations prohibit multiple use of the same nationwide permit on a “single and
complete project.” See 33 C.F.R. § 330.6(c). The limits that the Corps places on the use
of multiple general permits are designed to prevent developers from evading the
individual permit requirement for a project by segmenting the project into a lot of smaller
activities which could qualify for general permits. See Crutchfield v. County of Hanover,
Virginia, 325 F.3d 211 (4th Cir. 2003).
Resources
Complete list of 2021 NWPs and conditions
Chart summarizing the 2021 NWPs and conditions
Final Decision Documents supporting the 2021 NWPs
Examples of Regional and Programmatic permits - Region GP 96-07;
Maryland Programmatic GP MDSPG-4;
Letter of Permission Process for California (Sacramento District)
General permit regulations of the Corps and EPA

Section Quiz
Now that you’ve finished the material on permit exemptions and
general permits, why not try a CALI Lesson on the material at:
http://cca.li/PW. It will only take about fifteen minutes.

259

III.

Individual Permits

As noted above, most development activities in wetlands are authorized through general
permits, rather than individual permits. Less than 5% of the projects authorized by the
Corps each year are authorized through individual permits. See Royal C. Gardner,
Lawyers, Swamps, and Money 102 (Island Press, 2011). Although the individual permit
process is longer and more expensive than the general permit process, in most cases,
the Corps will issue a permit at the end of the process. In 2007 and 2008, while the Corps
evaluated more than 150,000 development activities for authorization under individual or
general permits, it denied fewer than 750 individual permit applications (less than 1%).
Id. That permit denial rate has remained fairly constant over the years. For instance, in
1981, the Corps denied 2.7% of the individual permit applications. See U.S. Congress,
Office of Technology Assessment, OTA-O-206, Wetlands: Their Use and Regulation 143144 (Mar. 1984). Once issued, individual permits generally authorize permittees to leave
dredged or fill material in wetlands indefinitely, see 33 C.F.R. § 325.6, but the Corps has
the authority to modify, suspend or revoke the
permits as “necessary by considerations of
Resources
the public interest. Id. § 325.7.
Corps Video on the permitting process
Description of the permit process (Corps
A.
The Process
HQ); (Corps Regional Office)
The Corps of Engineers reviews and issues or
Graphical representation of the permit
denies individual Section 404 permits through
process (Corps)
an informal process that involves public
404 Permit application form
participation and review by EPA and other
404 Permit application instructions
federal and state agencies. In most cases, the
EPA web page re: Section 404 permitting
decision whether to issue or deny the permit
Search for recently issued and pending
will be made at the district level, by the District
Section 404 permits
Engineer. See 33 C.F.R. § 325.2(a)(6). While
404 permit regulations - Corps; EPA Veto;
the Corps administers the Section 404 permit
EPA 404(b)(1) Guidelines
program, EPA plays an important role as well.
In addition to reviewing and commenting on
the individual permit applications, EPA, in
consultation with the Corps, wrote the rules
(the Section 404(b)(1) guidelines) that the
Corps uses to determine whether to issue or deny permits and EPA has the authority to
veto the Corps’ permits. See 33 U.S.C. § 1344(c) (discussed in Chapter 8, infra).
Section 404 of the Clean Water Act provides that the Corps “may issue permits, after
notice and opportunity for public hearings for the discharge of dredged or fill material into
the navigable waters at specified disposal sites.” See 33 U.S.C. § 1344(a). The Corps
has interpreted that language to authorize it to issue permits through an informal process,
rather than through the formal adjudication procedures of the Administrative Procedures

260

Act, and courts have upheld that interpretation. See Buttrey v. United States, 690 F.2d
1170 (5th Cir. 1982). The Corps’ regulations that address the Section 404 permit process
are codified at 33 C.F.R. Part 325.
1.

Application, public notice and comment

The Corps encourages, but does not require, permit applicants who are proposing major
projects to meet with the agency before filing their application for a brief pre-application
consultation. See 33 C.F.R. § 325.1(b). After an applicant files a complete application and
pays the application fee (ranging from $10 - $100), the Corps issues a public notice of the
permit application and invites public comment on the application. See 33 C.F.R. § 325.3.
The notice is posted online, in the post office or other public buildings in the area, sent to
the applicant, adjoining property owners, appropriate federal, state and local agencies,
the news media, and a variety of other interested parties and includes information outlined
in the regulations that is “sufficient ... to give a clear understanding of the nature and
magnitude of the activity to generate meaningful comment.” Id. § 325.3(a).
The Corps normally provides for a 30 day public comment period and consults with EPA,
the Fish and Wildlife Service, and several other agencies during this comment period to
comply with other federal laws, as described below. All of the comments that the Corps
receives from the public or other agencies are included in the administrative record for
the agency’s ultimate decision and the agency provides the applicant with an opportunity
to provide additional information in response to those comments. See 33 C.F.R.
§ 325.2(a)(3).
2.

Coordination with other agencies

In light of its authority to veto section 404 permits, see Chapter 8, infra, and its authority
to bring enforcement actions for illegal discharges of dredged or fill material, see Chapter
10, infra, EPA is involved in the review and commenting process for Section 404 permits
at an early stage. As the primary author of the Section 404(b)(1) guidelines, the standards
that the Corps will use to evaluate the permit, EPA can provide vital comments regarding
whether an application complies with those standards. The Fish and Wildlife Service also
provides comments based on its authority under the Fish and Wildlife Coordination Act
and the Endangered Species Act, discussed infra, and the National Oceanographic and
Atmospheric Administration (NOAA), within the Department of Commerce provides
comments on permits based on authority in the Endangered Species Act and Coastal
Zone Management Act, discussed infra. The Corps has entered into Memoranda of
Agreement with EPA, see Memorandum of Agreement Between the Environmental
Protection Agency and the Department of the Army, Section 404(q) (August 11, 1992),
the Fish and Wildlife Service, see Memorandum of Agreement Between the Department

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of the Interior and the Department of the Army, Section 404(q) (December 21, 1992) and
NOAA, see Memorandum of Agreement Between the Department of Commerce and the
Department of the Army, Section 404(q) (December 21, 1992) to coordinate their
involvement in the review of permits and to minimize delays in processing the permits, as
required by the statute. See 33 U.S.C. § 1344(q). While the Corps consults with EPA, the
Fish and Wildlife Service, and NOAA as part of the permit review process, the Corps
retains the ultimately authority to decide whether to issue or deny the Section 404 permit.
See U.S. Army Corps of Engineers, RGL 92-01, Federal Agencies Roles and
Responsibilities (May 12, 1992).
Many of those agencies, as well as states and other federal agencies, consult or comment
during the permit process because the Corps’ decision to issue or deny a Section 404
permit triggers provisions of other statutes or other provisions of the Clean Water Act.
For instance, Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C.
§ 1536(a)(2), requires federal agencies to insure that actions that they authorize, such as
through the issuance of a Section 404 permit, are not likely to “jeopardize ... endangered
... or threatened species” or destroy or adversely modify their critical habitat. The ESA
requires federal agencies to follow specific procedures to consult with the Fish and
Wildlife Service or the National Marine Fisheries Service within NOAA (for marine
species) to ensure that the agencies’ actions don’t violate Section 7. Id. § 1536(a); 50
C.F.R. Part 402, Subpart B (Department of Interior’s regulations). Accordingly, when the
Corps receives a section 404 permit application, it reviews the application and, if the
proposed activity may affect endangered or threatened species, it begins the consultation
process required by the ESA. See 33 C.F.R. § 325.2(b)(5). As part of the formal
consultation process, the Fish and Wildlife Service or the National Marine Fisheries
Service will prepare an environmental study called a biological opinion that evaluates
whether the proposed activity will jeopardize the continued existence of an endangered
or threatened species. See 50 C.F.R. § 402.14. If the Corps ultimately concludes that the
activity proposed in a permit will jeopardize and endangered or threatened species or
destroy or adversely modify its critical habitat, the agency must deny the permit.
The Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451 et seq., also limits the
Corps authority to issue Section 404 permits. If a state has an approved coastal zone
management program under the CZMA, the Corps cannot issue a permit for an activity
that affects the coastal zone unless the state certifies that the proposed activity complies
with the state’s program. Id. § 1456(c)(3). When the Corps receives a permit application
for such an activity, the applicant must include a certification that the activity complies
with the state’s coastal zone management program. See 33 C.F.R. § 325.2(b)(2). The
Corps forwards that certification to the state for concurrence. Id. If the state objects, the
Corps cannot issue the permit. Id. On the other hand, if the state concurs or fails to object
within six months, the Corps can issue the permit. Id.

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The NEPA and Clean Water Act Section 401 certification requirements discussed in
the section above regarding general permits also apply to the Corps’ evaluation of
individual permits. Thus, when the Corps receives a Section 404 permit application, it will
prepare either an environmental assessment or environmental impact statement,
depending on the magnitude of the impacts of the activities authorized by the permit, as
part of the permitting process. See 33 C.F.R. Part 325, App. B. NEPA requires public
involvement in the preparation of those documents, so the Corps provides notice and
appropriate opportunities to comment on the EA or EIS as part of the Section 404 permit
review process. Id. NEPA is a procedural statute and does not require agencies to take
actions that have the least harmful impacts on the environment, so, as long as the Corps
prepares the environmental assessment or environmental impact statement in
accordance with the procedures and requirements of NEPA, the agency can issue or
deny the Section 404 permit without further restrictions from NEPA.
In order to comply with the Clean Water Act Section 401 certification requirements, the
Corps asks the applicant to submit the certification (that the discharge won’t violate state
water quality standards) from the State where the discharge will occur as part of the
application. See 33 C.F.R. § 325.2(b)(1). If the applicant does not provide the certification,
the Corps seeks the certification from the State. Id. If, after the Corps issues the initial
public notice for a permit application, EPA determines that additional states need to
provide Section 401 certification, EPA will notify those states. Id. As noted above, in
response to a request for certification, states can agree to the certification or they can
object to the certification and seek to have conditions imposed on the discharge. The
Corps cannot issue a Section 404 permit until states issue the 401 certification or waive
their right to do so, by failing to act on a request for certification within 60 days. Id.
3.

Hearings and Decision-making

Unless the other federal laws outlined above require a hearing because of the nature of
a particular permit application, the Corps’ regulations give the district engineers discretion
to decide whether it is necessary to hold a public hearing on a Section 404 permit
application. Id. § 325.2(a)(5). Few hearings are held, even though the Corps’ regulations
provide that the agency will hold a public hearing whenever any person requests a hearing
during the comment period, unless the agency determines “that the issues raised are
insubstantial or there is otherwise no valid interest to be served by a hearing.” Id.
§ 327.4(b). When the Corps holds a hearing on a permit application, it is not a formal trialtype hearing. The district engineer is usually the presiding officer at the hearing and any
person may present oral or written testimony at the hearing and call witnesses to present
statements, but there is no cross-examination of witnesses. See 33 C.F.R. Part 327.
When the Corps has completed its review of the permit application under the Clean Water

263

Act standards discussed in the next section and has completed the consultation and
review required by the laws outlined above, the agency will issue or deny the permit, or
issue it with conditions. If the Corps issues a permit before other agencies have completed
their review of the activities authorized by the permit, the Corps will normally condition the
permit on approval by the other agencies. See 33 C.F.R. § 325.2(d)(4). When the Corps
makes a final decision on the permit application, it supports the decision with a written
statement of findings or record of decision (if an EIS was prepared), which explains
the basis for the agency’s decision. Id. § 325.2(b)(6).
If the Corps denies a permit application or includes conditions in the permit that lead the
applicant to decline the permit, the applicant, but no third party, can appeal the Corps’
permit decision administratively. See 33 C.F.R. § 331.6. The administrative process is
described in Chapter 10 of this book. Permit applicants must appeal the Corps’ decision
through those administrative processes before they can appeal the decision in court. Id.
§ 331.12. Since the administrative appeal process is only available to permit applicants,
anyone else who wants to challenge the Corps’ decision to issue, condition, or deny a
Section 404 permit must challenge it in court. Chapter 10 of this book explores the judicial
review and citizen suit provisions of the Clean Water Act in detail.
Questions and Comments
1.

Timing: The Corps’ permit regulations require the Corps to make a determination
regarding whether a permit application is complete within 15 days after receiving
the application, and require the Corps to make a decision on a permit application
within 60 days after the agency determines that the application is complete, unless
specific conditions identified in the regulation are met. See 33 C.F.R. § 325.2. Not
surprisingly, the process normally takes longer than that. Although the authors of
a 2002 study claimed that it took, on average, about 788 days to process an
individual Section 404 permit, see Sunding & Zilberman, supra, at 74, the Corps
indicates that it took, on average, about 221 days to process individual permits in
2010. See U.S. Army Corps of Engineers, Reissuance of Nationwide Permits, 77
Fed. Reg. 10184, 10190 (Feb. 21, 2012).

2.

The rest of the story re: permit denials: Although the Corps denies a very small
percentage of individual Section 404 permit applications each year, many permit
applications are withdrawn before the Corps makes a decision on the permit, and
many permits include conditions that the applicant did not originally propose or
might prefer were not included. In 2007 and 2008, for instance, 14% of permit
applications were withdrawn. See Royal C. Gardner, Lawyers, Swamps, and
Money 102 (Island Press, 2011).

3.

NEPA Issues: As will be discussed in the next section, when a landowner receives

264

a permit to discharge dredged or fill material into wetlands (or other waters of the
United States), the Corps frequently requires the permittee to create, restore,
enhance, or preserve other wetlands to mitigate the environmental harm caused
by the discharge. When the Corps is determining whether the effects of a
discharge authorized by a permit are significant enough to require the preparation
of an environmental impact statement, the Corps often focuses on the net effects
of the discharge when considering any mitigation that will take place as part of the
permit, rather than simply focusing on the environmental effects of the discharge
itself. By doing this, the adverse impacts are often reduced to a level where they
are not significant, so the Corps can issue a FONSI. Although environmental
groups have criticized this approach, the Council on Environmental Quality has
issued guidance that authorizes “mitigated FONSIs” if the mitigation is
enforceable and monitored. See Nancy Sutley, Chair, Council on Environmental
Quality, Memorandum for Heads of Federal Departments and Agencies,
Appropriate Use of Mitigation and Clarifying the Appropriate Use of Mitigated
Findings of No Significant Impact (Jan. 14, 2011).
Another issue that arises with regard to NEPA is the scope of the project to be
reviewed under NEPA. If a project will involve a discharge of dredged or fill material
into waters of the United States but also includes development of uplands, the
Corps normally only evaluates the portions of the project that take place in waters
of the United States as part of the environmental review under NEPA. See 33
C.F.R. Part 325, App. B, § 7. The Corps’ approach has been upheld by the Ninth
Circuit. See Sylvester v. U.S. Army Corps of Engineers, 871 F.2d 817 (9th Cir.
1989), revised at 884 F.2d 394 (9th Cir. 1989).
4.

Compliance with other laws: In addition to the laws outlined above, the Corps
must also comply with the National Historic Preservation Act, 16 U.S.C. §§ 470
et seq., when issuing a Section 404 permit. The Corps’ regulations establish a
process for review and consultation to comply with the statute as part of the 404
permit process. See .33 C.F.R. Part 325, App. C,

5.

Surface coal mining: In light of all the controversy surrounding the Corps’
issuance of permits for valley fills from mountaintop removal mining, the Corps,
EPA and the Fish and Wildlife Service entered into a Memorandum of
Understanding in 2005 to coordinate review of such permits. See Memorandum of
Understanding for the Purpose of Providing Concurrent and Coordinated Review
and Processing of Surface Coal Mining Applications Proposing Placement of
Dredged and/or Fill Material in Waters of the United States (Feb. 10, 2005).

6.

The hearing requirement: What is the standard of review that courts will apply
when the Corps determines that it is not necessary to hold a public hearing for a

265

Section 404 permit? See Friends of the Payette v. Horseshoe Bend Hydroelectric
Co., 988 F.2d 989 (9th Cir. 1993).
When the Corps holds a hearing for Section 404 permits, it holds an informal
hearing. Does due process require a more formal hearing than the hearing
provided by the Corps as part of the Section 404 permit process? Does due
process require that the Corps provide that hearing for every permit decision? See
AJA Associates v. U.S. Army Corps of Engineers, 817 F.2d 1070 (3d Cir. 1987);
Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982).
7.

After the fact permits: The Corps’ regulations authorize the agency, in limited
circumstances, to issue “after the fact” permits for activities that have already taken
place. See 33 C.F.R. § 326.3(e). The agency uses this as an enforcement tool,
and the permittee must follow the normal permit application procedures. Id
Research Problems
Pending or final permits: The Corps provides, on the website of the Corps’
headquarters, a searchable list of individual Section 404 permits issued by the
agency and pending individual permit applications. The list does not, however,
include links to the actual permits, which are available from the district offices. In
addition, the Regulatory sections of the Corps district offices usually post public
notices of pending permit applications on their websites. Although the notices do
not usually include the permit application, they provide more information than is
available for pending applications on the Corps’ headquarters website. Relying on
those sources, answer the following questions:
1. How many individual Section 404 permits and letters of permission were issued
by the Sacramento District of the Corps in February, 2014? What activity was
authorized by the permit issued to Scott Murphy and the City of Montrose?
2. What is the website address where you will find public notices of pending Section
404 permit applications in the Seattle, Washington area? If you can find a pending
permit application, please identify the applicant and indicate when the comment
period for that notice expires.

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B.

The Standards for Permit Review

The primary standards that the Corps of Engineers uses to evaluate whether to issue or
deny a Section 404 permit, or the conditions to include in a Section 404 permit are the
Section 404(b)(1) guidelines. See 40 C.F.R. Part 230. However, when evaluating
Section 404 permit applications, the Corps also conducts a public interest review.
1.

Public Interest Review

Although it is not explicitly required by the Clean Water Act, the Corps conducts a “public
interest review” of each Section 404 permit application (and Rivers and Harbors Act
section 10 permit application). Pursuant to its regulations, the Corps evaluates “the
probable impacts, including cumulative impacts of the proposed activity and its intended
use on the public interest.” See 33 C.F.R. § 320.4(a). The factors that the Corps considers
as part of its public interest review include:
Conservation

Economics

Aesthetics

General Environmental
Concerns

Wetlands

Historic Properties

Fish and Wildlife Values

Flood Hazards

Floodplain Values

Land Use

Navigation

Shore Erosion

Recreation

Water Supply and
Conservation

Water Quality

Mineral Needs

Considerations of Property
Ownership

The Needs and Welfare of
the People

Id.
Because the review includes such a broad range of factors, it has been criticized as
“virtually standardless”. See Royal C. Gardner, Lawyers, Swamps, and Money 75 (Island
Press, 2011).
For purposes of the public interest review, the regulations create a presumption in favor
of granting the permit, providing that “a permit will be granted unless the [Corps]
determines that it would be contrary to the public interest.” See 33 C.F.R. § 320.4(a).
However, the regulations also provide that the Corps should not issue permits to alter
“important” wetlands unless the Corps determines that the benefits of alteration outweigh
the damage to the wetlands. Id. While the Corps evaluates Section 404 permit
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applications under the public interest review, as a practical matter, the agency never
denies a permit based on the public interest review alone. See Royal C. Gardner,
Lawyers, Swamps, and Money 75 (Island Press, 2011). The primary standards for review
of Section 404 permit applications are the 404(b)(1) guidelines.
2.

Section 404(b)(1) Guidelines

Resource
Corps Video on the 404(b)(1) Guidelines

The Clean Water Act authorizes the Corps of
Engineers to issue permits for discharge of
dredged or fill material “through the
application of guidelines developed by the
Administrator, in conjunction with the Secretary ...” See 33 U.S.C. § 1344(b)(1). Although
they are called the 404(b)(1) guidelines, the “guidelines” are binding legislative rules,
which were issued through the notice and comment rulemaking process, see 45 Fed.
Reg. 85336 (Dec. 24, 1980), and are codified at 40 C.F.R. Part 230.
The guidelines place four major restrictions on discharges of dredged or fill material.
First, they prohibit discharges if there is “a practicable alternative to the proposed
discharge which would have less adverse impact on the aquatic ecosystem.” See 40
C.F.R. § 230.10(a).

Second, they prohibit discharges that violate or contribute to violation of several other
listed provisions of the Clean Water Act, Endangered Species Act, and the National
Marine Sanctuaries Act. Id. § 230.10(b).
Third, they prohibit discharges that will “cause or contribute to significant degradation
of the waters of the United States.” Id. § 230.10(c).
Fourth, they prohibit discharges unless “appropriate and practicable steps have been
taken which will minimize potential adverse impacts ... on the aquatic ecosystem.” Id.
§ 230.10(d).
If a discharge violates any one of those requirements, the Corps will deny the permit for
the discharge or condition the permit so that the discharge will not violate the
requirements.
The fourth restriction identified above is the basis for the mitigation requirements that
are included in Section 404 permits and will be explored at length in Chapter 7 of this
book. Regarding the third restriction, the guidelines provide further elaboration on the
meaning of “significant degradation”, see 33 C.F.R. § 230.11, but courts have rarely
overturned Section 404 permits on the grounds that the permit would cause or contribute

268

to “significant degradation.” See Margaret Strand, Wetlands Deskbook 90 (Environmental
Law institute, 3d ed., 2009) The second restriction identified above is rather
straightforward and is designed to ensure that the activities authorized by the Corps do
not violate specific environmental standards that are frequently implicated by the
discharge of dredged or fill material. Consequently, the remainder of this chapter will
focus on the practicable alternatives restriction in the 404(b)(1) guidelines.
a. Practicable alternatives

Resources
Corps Video on Alternatives Analysis
Statement of Findings, including alternatives
analysis, for Port of Anchorage 404 permit

As noted above, the Section 404(b)(1)
guidelines prohibit discharges of dredged
or fill material if there is “a practicable
alternative to the proposed discharge
which would have less adverse impact on the aquatic ecosystem.” See 40 C.F.R.
§ 230.10(a). An alternative is a “practicable” alternative if “it is available and capable of
being done after taking into consideration cost, existing technology and logistics in light
of the overall project purpose.” Id. § 230.10(a)(2). Thus, when the Corps evaluates a
Section 404 permit application, it focuses, in part, on whether the permit applicant could
proceed with the proposed project on other land or in a different manner on the same land
in a way that would have a less adverse impact on the aquatic ecosystem. If there is a
practicable alternative with less adverse impacts, the Corps must deny the permit. For
instance, taking a very simplified example, if a developer owns two parcels of land
adjacent to a major highway, only one of which has wetlands on it, and the developer
seeks a Section 404 permit to build a shopping mall on the parcel of land with the
wetlands, but could build the mall on the other parcel (considering cost and the project
purpose), the Corps should deny the permit to the developer since construction on the
other parcel is a practicable alternative that would have a less adverse impact on the
aquatic ecosystem.
The guidelines also establish two presumptions regarding practicable alternatives when
the activity to be permitted involves a discharge into a “special aquatic site” (which, per
the guidelines, includes wetlands, see 40 C.F.R. § 230.41.

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First, if an activity to be permitted is not waterdependent (does not require access or proximity to
or siting within the special aquatic site to fulfill its
basic purpose), the guidelines presume that
practicable alternatives exist that do not involve
special aquatic sites, “unless clearly demonstrated
otherwise.” See 40 C.F.R. § 230.10(a)(3). Thus, while
a dock would be water-dependent, a golf course
would
generally
not
be
water-dependent.
Accordingly, in the permitting process, the golf course
developer would have the burden of demonstrating
that there were no practicable alternatives to
constructing the golf course in the location and
manner proposed in the permit application.
Second, for activities that involve discharges into Photo 27 By Bill Fitzpatrick (Own work)
special aquatic sites, the guidelines presume that http://commons.wikimedia.org/wiki/File%3A
any practicable alternatives to the proposed Municipal_Golf_Course.jpg [CC-BY-SA-3.0]
discharge that do not involve special aquatic sites will have less adverse impact on
the aquatic environment, “unless clearly demonstrated otherwise.” Id. Accordingly, if
there was another location available where the golf course developer in the last example
could build the golf course without filling wetlands and the location was a “practicable”
alternative, the developer would have to rebut the presumption that the alternative would
have a less adverse impact on the aquatic environment before the Corps could issue a
Section 404 permit.
Project Purpose
One issue that has been the source of controversy over the years has been the
identification of the purpose of a project for which a Section 404 permit is being sought.
If the purpose is defined sufficiently narrowly, the range of alternatives that will achieve
that purpose and be considered “practicable” will be narrowed as well. Similarly, the
manner in which the project purpose is framed can greatly affect whether the project is
considered “water dependent.” As a result, for many years, disputes arose concerning
whether the project purpose was ultimately determined by the Corps or the applicant. The
issue is addressed (1) in the following case and (2) in the following memorandum issued
by the Corps in response to a request from EPA and the Department of Commerce to
elevate a permit dispute to the Corps’ headquarters for resolution. (Note: When EPA,
FWS or NOAA cannot resolve disputes with the Corps regarding Section 404 permit
applications at the regional level, the agencies have adopted a process, pursuant to
Section 404(q) of the Clean Water Act, to elevate those disputes to higher levels within
the agencies for resolution. The elevation process is described in detail in Chapter 8).

270

Louisiana Wildlife Federation, Inc. v.
York

Resources for the Case
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761 F.2d 1044 (5th Cir. 1985)
PER CURIAM:

Six environmental organizations object to the issuance by the U.S. Army Corps of
Engineers of six individual permits allowing private landowners to clear and convert to
agriculture approximately 5200 acres of bottomland hardwood wetlands. * * * As to the
six individual permits, we agree with the district court that the Corps properly followed
both the National Environmental Policy Act (NEPA), and the Environmental Protection
Agency's regulatory guidelines in making its determination. * * *
The district court opinion efficiently distilled a voluminous record and described in detail
* * * the physical characteristics of the six tracts affected by the permit applications.
* * * We, therefore, do not attempt to repeat the factual background of this case.
The six permits granted by the Corps authorize the agricultural conversion of 5200 acres
of wetlands. For environmental protection purposes, such wetlands are denominated
"special aquatic sites." * * * Both the Environmental Protection Agency's Guidelines and
the Corps of Engineers' regulations treat all special aquatic sites as worthy of extra
protection, and state as "[t]he guiding principle ... that degradation or destruction of
special sites may represent an irreversible loss of valuable aquatic resources." * * *
Such heightened solicitude for wetlands is manifest in the regulations stating the
considerations that must be taken into account when evaluating a proposed alteration to
wetlands acreage. When a discharge of dredged or fill material is proposed, the Corps'
Guidelines prohibit issuance of a permit if there is a "practicable alternative that would
have less adverse impact on the aquatic ecosystem...." * * * A "practicable alternative," in
turn, is defined as one that is, "available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of overall project purposes."
* * * With respect to wetlands, however, the Guidelines specify:
[w]here the activity associated with a discharge which is proposed for a special
aquatic site ... does not require access or proximity to or siting within the special
aquatic site in question to fulfill the basic purpose (i.e. is not 'water dependent'),
practicable alternatives that do not involve special aquatic sites are presumed to
be available, unless clearly demonstrated otherwise. * * *

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"Thus, the guidelines couple a general presumption against all discharges into aquatic
ecosystems with a specific presumption that practicable alternatives to the fill of wetlands
exist." * * *
In each of the six permit-application proceedings, the Corps characterized the applicant's
basic purpose for the project as being, "to increase soybean production or to increase net
return on assets owned by the company." * * * It is undisputed that soybean production is
a non-water dependent activity. As shown above, this fact "necessitate[s] a more
persuasive showing than otherwise concerning the lack of alternatives." * * *
The environmental protection organizations argue on appeal that the applicants failed to
make the required showing, and that the Corps erroneously granted them permits by
interpreting "practicable alternatives" to mean "profit-maximizing alternatives." In addition,
they contend that the Corps erred in viewing the alternatives with the applicants'
objectives in mind instead of with an eye towards environmental maintenance. Both
arguments must be rejected. * * *
[The Court held that the Corps, in granting the permits, often approved an alternative that
was not “profit maximizing”, so the court rejected the environmental organizations initial
argument.]
The environmental protection organizations' second contention, that the alternatives may
not be viewed with the applicant's objectives in mind, is not substantiated by either case
law or the applicable regulations. As the district court recognized, the Preamble to the
Guidelines states, "... [w]e consider implicit that, to be practicable, an alternative must be
capable of achieving the best purpose of the proposed activity." * * * In turn, the text of
the Guidelines provides that an alternative is practicable if it is available and capable of
being done after taking into account costs, existing technology and logistics in light of the
overall project purposes. * * * Under these Guidelines, therefore, not only is it permissible
for the Corps to consider the applicant's objective; the Corps has a duty to take into
account the objectives of the applicant's project.* * * Indeed, it would be bizarre if the
Corps were to ignore the purpose for which the applicant seeks a permit and to substitute
a purpose it deems more suitable.
The case law, although sparse, is in accord with our conclusion. In Hough v. Marsh, supra,
residents of Edgartown, Massachusetts challenged a Corps permit authorizing the filling
of a coastal tract to construct two private homes and a tennis court. The District Engineer
had found that the project was not "water dependent," and undertook the requisite
examination to discover the existence of "practicable alternatives." The Engineer defined
the basic purpose of the project as "providing two homes and a tennis court."
* * * Although the district court remanded for the landowners to demonstrate more clearly
that no practicable alternatives to the proposed fill existed, the court did not question the

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Engineer's formulation of the project's objective, and did not suggest that the alternatives
were not considered from the proper perspective. * * *
The district court's findings that the Corps properly analyzed all six permit applications
and correctly decided to grant permission to clear the tracts for agricultural use is amply
supported by the record. Nothing in it convinces us that the Corps' actions were arbitrary,
capricious, or otherwise not in accordance with law, the sole standards by which we
review such actions.

Resources

Permit Elevation, Plantation Landing
Resort

Unedited version of the decision
EPA fact sheet describing elevation process
EPA website regarding 404(q) and elevation

Patrick Kelly, Brigadier General
Memorandum Thru Commander, U.S. Army
Engineer Division, Lower Mississippi Valley
For Commander, U.S. Army Engineer District, New Orleans, Permit Elevation,
Plantation Landing Resort, Inc. (Apr. 21, 1989)

* * * By memorandum dated 3 February 1989, the Assistant Secretary of the Army (Civil
Works) advised me that he had granted the request of the Environmental Protection
Agency (EPA) and the Department of Commerce (DOC) to elevate the permit case for
Plantation Landing Resort, Inc., to HQUSACE for national policy level review concerning
the practicable alternatives and mitigation provisions of the 404(b)(1) Guidelines. My
review of the case record * * * leads me to conclude that Corps policy * * * should be
clarified in certain respects. * * *
Please re-evaluate the subject permit case in light of the guidance provided in the
attachment, and take action accordingly. * * *
Attachment
* * * 5. One essential aspect of applying the “practicable alternative” and "water
dependency” provisions of the Guidelines to a particular 404 permit case is to decide what
is the “basic purpose” of the planned activity requiring the proposed discharge of dredged
or fill material. The preamble to the Guidelines provides the following guidance on the
meaning of “basic purpose”:
“Non-water-dependent” discharges are those associated with activities which do
not require access or proximity to or siting within the special aquatic site to fulfill
their basic purpose. An example is a fill to create a restaurant site, since

273

restaurants do not need be in wetlands to fulfill their basic purpose of feeding
people. (45 Fed. Req. 85339, Dec. 24, 1980; emphasis added)
6. The 404(b) (1) analysis for the Plantation Landing Resort, Inc., application, even when
read in conjunction with the Statement of Findings (SOF) and the Environmental
Assessment (EA), does not deal with the issues of practicable alternatives and water
dependency in a satisfactory manner. * * *
7. One significant problem in the [New Orleans District’s] approach to the 404(b)(1) review
is found in the following, which is the only statement in the [New Orleans District’s]
404(b)(1) evaluation document presenting a project-specific reference to the Plantation
Landing case with respect to the practicable alternative requirement of the Guidelines:
Several less environmentally damaging alternatives were identified in the
Environmental Assessment. The applicant stated and supplied information
indicating that these alternatives would not be practicable in light of his overall
project purposes. Recent guidance from [the Lower Mississippi Valley Division]
states that the applicant is the authoritative source of information regarding
practicability determinations, therefore no less environmentally damaging
practicable alternatives are available. ([New Orleans District’s] “Evaluation of
Section 404(b)(1) Guidelines”, * * * )
This statement appears to allow the applicant to determine whether practicable
alternatives exist to his project. Emphatically, that is not an acceptable approach for
conducting the alternatives review under the 404(b)(1) Guidelines. The Corps is
responsible for controlling every aspect of the 404(b)(1) analysis. While the Corps should
consider the views of the applicant regarding his project’s purpose and the existence (or
lack of) practicable alternatives, the Corps must determine and evaluate these mattes
itself, with no control or direction from the applicant, and without undue deference to the
applicant’s wishes. * * *
9. A reading of the entire record indicates that [the New Orleans District] accepted the
applicant's assertion that the project as proposed must be accepted by the Corps as the
basis for the 404(b) (1) Guidelines practicability analysis. The applicant proposed a fullyintegrated, waterfront, contiguous water-oriented recreational complex, in the form the
applicant proposed. Consequently, [the New Orleans District] apparently presumed that
no alternative site could be considered if it could not support in one, contiguous waterfront
location the same sort of fully integrated recreational complex that the applicant proposed
to build. * * *
11. The effect of NOD'S deferring to and accepting the applicant's definition of the basic
purpose of his project as a contiguous, fully-integrated, and entirely waterfront resort

274

complex in the form the applicant had proposed was to ensure that no practicable
alternative could exist. Nevertheless, the , administrative record nowhere provides any
rationale for why the applicant's proposed complex had to be "contiguous" or "fully
integrated" or why all features of it had to be "waterfront." The only reason appearing on
the record to indicate why NOD presumed that the project had to be contiguous, fully
integrated, and entirely waterfront is that the applicant stated that that was his proposal,
thus by definition that was the official project purpose which the Corps must use. That is
not an acceptable approach to interpret and implement the 404(b)(1) Guidelines. Only if
the Corps, independently of the applicant, were to determine that the basic purposes of
the project cannot practicably be accomplished unless the project is built in a
“contiguous”, "fully integrated," and entirely "waterfront" manner would those conditions
be relevant to the 404(b) (1) Guidelines' alternative review. The fact that those conditions
may be part of the proposal as presented by the applicant is by no means determinative
of that point. Once again, the Corps, not the applicant, must define the basic purpose
underlying the applicant's proposed activity. * * *
Questions and Comments
1.

Standard of Review of Corps’ alternatives analysis: What standard of review
did the 5th Circuit apply to the Corps’ identification of the purposes of the permit
applicants’ projects and the analysis regarding whether practicable alternatives
existed to achieve those purposes? Does “increas[ing] net return on assets owned
by the company” seem to be an appropriate purpose?
For another case discussing the standard of review that applies to the Corps’
decision-making in many aspects of the 404 permit review, including the
alternatives analysis, see Fund for Animals v. Rice, 85 F.3d 535, 541-542 (11th Cir.
1996). That court’s discussion of the “arbitrary and capricious” standard is black
letter administrative law and may help explain the 5th Circuit’s deferential decision
in Louisiana Wildlife Federation v. York.

2.

While the 5th Circuit deferred to the Corps’ identification of the project purpose in
Louisiana Wildlife Federation v. York, how much deference does the Court suggest
is due to the applicant’s identification of the purpose? Who makes the final
determination, according to the 5th Circuit?

3.

Plantation Landing Elevation: It is probably not surprising, in light of the
language used by the 5th Circuit in Louisiana Wildlife Federation v. York, that the
New Orleans District of the Corps of Engineers deferred to the applicant’s
identification of the project purpose in carrying out the alternatives analysis for the
Plantation Landing permit application. It should be clear, though, that after that
guidance, the Corps makes an independent determination of the project’s purpose,

275

as well as whether alternatives are practicable and have less adverse effects on
the aquatic environment. Subsequent to the guidance in the Plantation Landing
permit elevation case, the Corps issued similar guidance in several other permit
elevation cases, including the Hartz Mountain Elevation and the Old Cutler Bay
Elevation.
The Corps regulations that implement NEPA review for the Section 404 permit
process explicitly provide “[W]hile generally focusing on the applicant’s statement,
the Corps will, in all cases, exercise independent judgment in defining the purpose
and need for the project from the applicant’s and the public’s perspective.” See 33
C.F.R. Part 325, App. B(9)(c)(4). Although those regulations don’t apply on their
face to the alternatives analysis, the Corps has taken the same approach in
conducting the alternatives analysis since the elevation decisions above.
4.

Flexibility in application: In 1993, recognizing that the impacts from discharges
of dredged or fill material vary greatly, the Corps and EPA jointly issued guidance
that provides that the Guidelines “do not contemplate that the same intensity of
analysis will be required for all types of projects but instead envision a correlation
between the scope of the evaluation and the potential extent of adverse impacts
on the aquatic environment.” See U.S. Army Corps of Engineers, RGL 93-02,
Guidance on Flexibility of the 404(b)(1) Guidelines and Mitigation Banking 3 (Aug.
23, 1993). Accordingly, the guidance suggests that “[t]he amount of information
needed to make such a determination [that there is no practicable alternative to a
proposed discharge] and the level of scrutiny required by the Guidelines is
commensurate with the severity of the environmental impact * * * resource and the
nature of the proposed activity) and the scope/cost of the project.” Id. at 2. How
might this flexibility in application of the guidelines impact the deference accorded
to the Corps when a court reviews the agency’s alternatives analysis? See Greater
Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004).

5.

Water-dependent: The characterization of a project's purpose will greatly
influence whether the project is deemed to be "water-dependent" for purposes of
the alternatives analysis. For instance, in Shoreline Associates v. Marsh, when the
permit applicant sought permission to discharge fill material to build a boat storage
area and boat launch in conjunction with a townhouse development, the court
upheld the Corps’ determination that the basic purpose of the project was
construction on the townhouse community, which was not water dependent, and
that the construction of the boat launch was only incidental to the basic purpose of
the project. See 555 F. Supp. 169 (D. Md. 1983), aff’d 725 F.2d 677 (4th Cir. 1984).
Several years later, when a permit applicant sought to reopen a river channel to
provide boat access to a residential community, the U.S. Court of Appeals for the
Eighth Circuit upheld the Corps’ determination that the basic purpose of the project

276

was to provide boat access to the community, which was a water-dependent
activity. See National Wildlife Federation v. Whistler, 27 F.3d 1341 (8th Cir. 1994).
The Court distinguished the Shoreline case and cases like it on the grounds that
the residential community in the case under review was being constructed in
uplands and did not require a permit, so the only activity triggering the permit
requirement was the construction of the boat access. Id. at 1345. Although the
Corps rejected the applicant’s purpose in one case and accepted it in the other, in
both cases, the courts deferred to the agency because they concluded that the
agency’s determination was not arbitrary or capricious.

Photo 33 By S. Johnson

Alternatives - Availability and Practicability
Since the 404(b)(1) guidelines prohibit the Corps from issuing a permit when practicable
alternatives to the proposed discharge are available that have less adverse impacts on
the aquatic environment, it is important to spend a little time examining how to determine
when an alternative is “available” and when an available alternative is “practicable.”
Although the applicant may suggest that certain alternatives are or are not available or
practicable, the Corps has the ultimate authority to determine which alternatives are
practicable alternatives, just as it has the ultimate authority to determine the basic
purpose of the project. The following case focuses on determining when alternatives are
“available.”

277

Bersani v. Robichaud
850 F.2d 36 (2d Cir. 1988)

Resources for the case
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This case arises out of Pyramid's attempt
to build a shopping mall on certain
wetlands in Massachusetts known as
Sweedens Swamp. Acting under the Clean Water Act, * * * EPA vetoed the approval by
the Corps of a permit to build the mall because EPA found that an alternative site had
been available to Pyramid at the time it entered the market to search for a site for the
mall. The alternative site was purchased later by another developer and arguably became
unavailable by the time Pyramid applied for a permit to build the mall.
On appeal, the thrust of Pyramid's argument is a challenge to what it calls EPA's "market
entry" theory, i.e., the interpretation by EPA of the relevant regulation, which led EPA to
consider the availability of alternative sites at the time Pyramid entered the market for a
site, instead of at the time it applied for a permit. Pyramid argues principally (1) that the
market entry approach is contrary to the regulatory language and past practice; and (2)
that since the Corps, another agency which was jointly responsible with EPA for
administering the program in question, interpreted the pertinent regulation in a different
way than EPA had, and since the market entry issue does not involve environmental
expertise, this Court should not defer to EPA's interpretation of the regulation. * * *
We hold (1) that the market entry theory is consistent with both the regulatory language
and past practice; (2) that EPA's interpretation, while not necessarily entitled to deference,
is reasonable; and (3) that EPA's application of the regulation is supported by the
administrative record. We agree with the district court's conclusion that EPA's findings
were not arbitrary and capricious. We also hold that Pyramid's other arguments * * * lack
merit.
We affirm.

278

I.
A.

***
Statutory and Regulatory Framework
***

The 404(b)(1) guidelines * * * are regulations containing the requirements for issuing a
permit for discharge of dredged or fill materials. 40 C.F.R. Sec. 230.10(a)2 covers "nonwater dependent activities" (i.e., activities that could be performed on non-wetland sites,
such as building a mall) and provides essentially that the Corps must determine whether
an alternative site is available that would cause less harm to the wetlands. Specifically, it
provides that "no discharge of dredged or fill material shall be permitted if there is a
practicable alternative" to the proposal that would have a "less adverse impact" on the
"aquatic ecosystem". It also provides that a practicable alternative may include "an area
not presently owned by the applicant which could reasonably be obtained, utilized,
expanded or managed in order to fulfill the basic purpose of the proposed activity." * * * It
further provides that, "unless clearly demonstrated otherwise", practicable alternatives
are (1) "presumed to be available" and (2) "presumed to have less adverse impact on the
aquatic ecosystem". * * * Thus, an applicant such as Pyramid must rebut both of these
presumptions in order to obtain a permit. Sections 230.10(c) and (d) require that the Corps
not permit any discharge that would contribute to significant degradation of the nation's
wetlands and that any adverse impacts must be mitigated through practicable measures.
***
Under Section 404(c) of the Act * * * , EPA has veto power over any decision of the Corps
to issue a permit. It is this provision that is at the heart of the instant case. * * *
Factual Background of the Sweedens Swamp Project
Sweedens Swamp is a 49.5 acre wetland which is part of an 80 acre site near Interstate
95 in South Attleboro, Massachusetts. Although some illegal dumping and motorbike
intrusions have occurred, these activities have been found to have had little impact on the
site which remains a "high-quality red maple swamp" providing wildlife habitat and
protecting the area from flooding and pollution.
The effort to build a mall on Sweedens Swamp was initiated by Pyramid's predecessor,
the Edward J. DeBartolo Corporation ("DeBartolo"). DeBartolo purchased the Swamp
some time before April 1982. At the time of this purchase an alternative site was available
in North Attleboro (the "North Attleboro site"). Since Massachusetts requires state
approval (in addition to federal approval) for projects that would fill wetlands, DeBartolo
applied to the Massachusetts Department of Environmental Quality Engineering
("DEQE") for permission to build on Sweedens Swamp. DEQE denied the application in
April 1982.

279

Pyramid took over the project in 1983 while the appeal of the DEQE denial was pending.
In April 1983, Massachusetts adopted more rigorous standards for approval of permits.
The new standards added wildlife habitat as a value of wetlands to be protected and
required the absence of a "practicable alternative". In March 1985, DEQE granted
approval under the old, less stringent, regulations. The Massachusetts District Court
reversed on the ground that DEQE should have applied the new regulations, but the
Massachusetts Supreme Judicial Court ultimately upheld DEQE's approval. * * *
One of the key issues in dispute in the instant case is just when did Pyramid begin
searching for a suitable site for its mall. EPA asserts that Pyramid began to search in the
Spring of 1983. Pyramid asserts that it began to search several months later, in
September 1983. The difference is crucial because on July 1, 1983--a date between the
starting dates claimed by EPA and Pyramid--a competitor of Pyramid, the New England
Development Co. ("NED"), purchased options to buy the North Attleboro site. This site
was located upland and could have served as a "practicable alternative" to Sweedens
Swamp, if it had been "available" at the relevant time. Thus, if the relevant time to
determine whether an alternative is "available" is the time the applicant is searching for a
site (an issue that is hotly disputed), and if Pyramid began to search at a time before NED
acquired options on the North Attleboro site, there definitely would have been a
"practicable alternative" to Sweedens Swamp, and Pyramid's application should have
been denied. On the other hand, if Pyramid did not begin its search until after NED
acquired options on the North Attleboro site, then the site arguably was not "available"
and the permit should have been granted. Of course it also is possible that the North
Attleboro site remained "available" after NED's acquisition of the options, since Pyramid
arguably could have purchased the options from NED. Moreover, since the North
Attleboro site indisputably was "available" when Pyramid's predecessor, DeBartolo,
purchased Sweedens Swamp, one might argue, as EPA does, that Pyramid should be
held to stand in its predecessor's shoes. The district court apparently agreed with Pyramid
on the issue of when Pyramid entered the market, stating that "Pyramid initially became
interested in developing a shopping mall in the Attleboro area in September 1983." * * *
In December 1983, Pyramid purchased Sweedens Swamp from DeBartolo. In August
1984, Pyramid applied under Sec. 404(a) to the New England regional division of the
Corps (the "NE Corps") for a permit. It sought to fill or alter 32 of the 49.6 acres of the
Swamp; to excavate nine acres of uplands to create artificial wetlands; and to alter 13.3
acres of existing wetlands to improve its environmental quality. Later Pyramid proposed
to mitigate the adverse impact on the wetlands by creating 36 acres of replacement
wetlands in an off-site gravel pit.
During the review of Pyramid's application by EPA, by the Fish and Wildlife Service
("FWS") and by the Corps, Pyramid submitted information on "practicable alternatives",

280

especially the North Attleboro site. In rejecting that site as an alternative, Pyramid
asserted that building a mall there was not feasible, not that the site was unavailable. In
the words of the district court, Pyramid claimed that
"the site lacked sufficient traffic volume and sufficient access from local roads,
potential department store tenants had expressed strong doubts about the
feasibility of the site and previous attempts to develop the site had met with strong
resistance from the surrounding community." * * *
In November 1984, EPA and FWS submitted official comments to the NE Corps
recommending denial of the application because Pyramid's proposal was inconsistent
with the 404(b)(1) guidelines. Pyramid had failed (1) to overcome the presumption of the
availability of alternatives and (2) to mitigate adequately the adverse impact on wildlife.
EPA threatened a Sec. 404(c) review. Pyramid then proposed to create additional artificial
wetlands at a nearby upland site, a proposal it eventually abandoned.
In January 1985, the NE Corps hired a consultant to investigate the feasibility of
Sweedens Swamp and the North Attleboro site. The consultant reported that either site
was feasible but that from a commercial standpoint only one mall could survive in the
area. On February 19, 1985, the NE Corps advised Pyramid that denial of its permit was
imminent. On May 2, 1985, the NE Corps sent its recommendation to deny the permit to
the national headquarters of the Corps. Although the NE Corps ordinarily makes the final
decision on whether to grant a permit, see 33 C.F.R. Sec. 325.8 (1982), in the instant
case, because of widespread publicity, General John F. Wall, the Director of Civil Works
at the national headquarters of the Corps, decided to review the NE Corps' decision. Wall
reached a different conclusion. He decided to grant the permit after finding that Pyramid's
offsite mitigation proposal would reduce the adverse impacts sufficiently to allow the
"practicable alternative" test to be deemed satisfied. * * *
Although he did not explicitly address the issue, Wall apparently assumed that the
relevant time to determine whether there was a practicable alternative was the time of the
application, not the time the applicant entered the market. In other words, Wall appears
to have assumed that the market entry theory was not the correct approach. ***
[On May 13, 1986, EPA vetoed the permit and found] (2) that the North Attleboro site
could have been available to Pyramid at the time Pyramid investigated the area to search
for a site; * * * [and] (4) that the North Attleboro site was feasible and would have a less
adverse impact on the wetland environment * * * In the second of these findings, EPA
used what Pyramid calls the ‘market entry’ approach.
On July 1, 1986, Pyramid commenced the instant action in the district court to vacate
EPA’s final determination as arbitrary and capricious. * * * On October 6, 1987, the court
granted EPA’s motion for summary judgment. The court stated that, with regard to the

281

market entry theory, EPA’s interpretation of its regulations was entitled to deference. This
appeal followed.
For the reasons which follow, we affirm.
II
One of Pyramid's principal contentions is that the market entry approach is inconsistent
with both the language of the 404(b)(1) guidelines and the past practice of the Corps and
EPA.
A
With regard to the language of the regulations, Pyramid reasons that the 404(b)(1)
guidelines are framed in the present tense, while the market entry approach focuses on
the past by considering whether a practicable alternative was available at the time the
applicant entered the market to search for a site. To support its argument that the
404(b)(1) guidelines are framed in the present tense, Pyramid quotes the following
language:
"An alternative is practicable if it is available.... If it is otherwise a practicable
alternative, an area not presently owned by the applicant which could reasonably
be obtained, utilized, expanded or managed in order to fulfill the basic purpose of
the proposed activity may be considered." * * *
While this argument has a certain surface appeal, we are persuaded that it is contrary to
a common sense reading of the regulations; that it entails an overly literal and narrow
interpretation of the language; and that it creates requirements not intended by Congress.
First, while it is true that the language is in the present tense, it does not follow that the
"most natural" reading of the regulations would create a time-of-application rule. As EPA
points out, "the regulations do not indicate when it is to be determined whether an
alternative 'is' available," (emphasis in original), i.e., the "present" of the regulations might
be the time the application is submitted; the time it is reviewed; or any number of other
times. Based upon a reading of the language in the context of the controlling statute and
the regulations as a whole, moreover, we conclude that when the agencies drafted the
language in question they simply were not thinking of the specific issues raised by the
instant case, in which an applicant had available alternatives at the time it was selecting
its site but these alternatives had evaporated by the time it applied for a permit. We
therefore agree with the district court that the regulations are essentially silent on the
issue of timing and that it would be appropriate to consider the objectives of the Act and
the intent underlying the promulgation of the regulations.

282

Second, as EPA has pointed out, the preamble to the 404(b)(1) guidelines states that the
purpose of the "practicable alternatives" analysis is "to recognize the special value of
wetlands and to avoid their unnecessary destruction, particularly where practicable
alternatives were available in non-aquatic areas to achieve the basic purpose of the
proposal." 45 Fed. Reg. 85,338 (1980) (emphasis added). In other words, the purpose is
to create an incentive for developers to avoid choosing wetlands when they could choose
an alternative upland site. Pyramid's reading of the regulations would thwart this purpose
because it would remove the incentive for a developer to search for an alternative site at
the time such an incentive is needed, i.e., at the time it is making the decision to select a
particular site. If the practicable alternatives analysis were applied to the time of the
application for a permit, the developer would have little incentive to search for alternatives,
especially if it were confident that alternatives soon would disappear. Conversely, in a
case in which alternatives were not available at the time the developer made its selection,
but became available by the time of application, the developer's application would be
denied even though it could not have explored the alternative site at the time of its
decision.
Pyramid attacks this reasoning by arguing that few developers would take the risk that an
available alternative site would become unavailable and that EPA's reading improperly
considers the motives and subjective state of mind of the applicant. These arguments are
wide of the mark. Whether most real-life developers would take such a risk is irrelevant.
The point is that Pyramid's time-of-application theory is completely at odds with the
expressed intent of the regulations to provide an incentive to avoid choosing wetlands.
Similarly, EPA's interpretation does not require courts to investigate the subjective state
of mind of a developer. EPA discusses state-of-mind issues only because it is discussing
the purpose behind the regulations, which is concerned with incentives, and thus in fact
is indirectly concerned with the developer's state of mind.
In short, we conclude that a common sense reading of the statute can lead only to the
use of the market entry approach used by EPA.
B
With regard to the past practice of the Corps and EPA, Pyramid asserts that neither has
ever applied a market entry approach. It first cites two previous final determinations of
EPA * * * On the basis of these determinations, Pyramid argues that, had EPA been using
a market entry approach in these cases, it would have examined whether alternatives
were available at earlier times and that EPA had failed to make such an examination.
***
Our examination of these prior decisions has satisfied us, however, that the issue raised
in the instant case simply has not been addressed before. [The court then discussed why

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the issue was not relevant in the prior decisions cited by Pyramid.] * * *
We believe that the issue essentially is one of first impression. We view EPA’s action in
the instant case as an application of the regulatory language to the specific needs of the
case which arose here for the first time. We therefore hold that EPA has not acted contrary
to prior practice under the regulations.
III
[In Part III of the opinion, the court addressed Pyramid’s claim that EPA’s interpretation
of the Guidelines was not entitled to deference because the Corps was charged with
issuing Section 404 permits and the Corps had adopted a different interpretation of the
Guidelines. The Court did not ultimately determine whether EPA’s interpretation, as
opposed to the Corps’, was entitled to a greater level of deference because (1) the court
felt that it was unclear whether the Corps was evaluating alternatives based on a “time of
application” theory or a “market entry” theory; and (2) regardless of whether EPA was
entitled to a greater level of deference than the Corps, EPA’s decision was valid under
the normal standard of review that would apply in the case - the arbitrary and capricious
standard.]
Questions and Comments
1.

EPA’s veto: As mentioned above and as will be discussed in detail in Chapter 8,
infra, EPA can veto permits issued by the Corps if EPA determines that the
permitted discharge will have unacceptable adverse effects. Since EPA vetoed the
permit, the court is reviewing EPA’s decision, rather than the Corps. In light of
EPA’s veto authority, it is probably more accurate to say that the government,
rather than the Corps, has the ultimate authority to determine whether alternatives
are available and practicable.

2.

Timing of availability: In determining whether an alternative is “available” to a
permit applicant, what is the appropriate time period to examine, according to the
court? Should the Corps examine the alternatives that are available at the time of
the permit application? What are the disadvantages of that approach, according to
the court? Does the market entry approach achieve the goal of the statute and
regulations if there are alternatives available at the time of application that were
not available when the applicant entered the market? As an alternative, should the
Corps examine the alternatives that are available at the time the agency is deciding
whether to issue or deny the permit, regardless of what alternatives were available
earlier? The dissent, in a portion of the opinion not reproduced above, suggests
that a “time of decision” rule would be most consistent with the goals of the statute
and regulations. Do you understand why? If you read the dissent’s opinion, you’ll

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notice that the dissent has an “interesting” view regarding the goals of the Clean
Water Act and the 404(b)(1) Guidelines.
3.

Applying the market entry test: If the government will examine the alternatives
that are available to a permit applicant at the time the applicant enters the market
for the project in the permit application, when does the applicant “enter” the
market? When the first internal memo is circulated? When they hire a consultant?
Did the court articulate a precise test to determine when an applicant “enters” the
market? Did it have to do so in this case?

4.

Property not owned by the applicant: As was evident in this case, the 404(b)(1)
Guidelines provide that “available” alternatives include areas “not presently owned
by the applicant which could reasonably be obtained, utilized, expanded or
managed in order to fulfill the basic purpose of the proposed activity.” See 40
C.F.R. § 230.10(a)(2).

5.

Fairness: What role do considerations of fairness play in this case? On the one
hand, the majority suggested that it might be appropriate to examine alternatives
that existed at the time that the permit applicant’s predecessor entered the market,
because the applicant received a permit from the State of Massachusetts for the
project under state standards that had been replaced because the applicant took
over its predecessor’s permit application, which was proceeding under the old
standards and was grand-fathered.
On the other hand, the permit applicant argued that the government’s decision to
apply a “market entry” test to determine whether alternatives were “available” was
a retroactive application of a new standard. Was it? Can agencies make decisions
in adjudication that apply retroactively? What are the limits on the agency?

6.

Changing positions: The permit applicant argued that EPA’s decision to apply a
“market entry” approach should be invalidated because the “market entry” test
represented a change in the agency’s interpretation of the Guidelines and was
inconsistent with the prior interpretation of the Guidelines. The court did not believe
that the agency was changing its past interpretation or practice. How would the
court’s analysis have differed if EPA’s interpretation represented a change in its
prior interpretation of the Guidelines? Can agencies change their interpretations of
regulations over time? If so, are there any limits on those changes? Could EPA
have adopted a “market entry” approach if it had previously adopted a regulation
that indicated that alternatives would be evaluated based on alternatives that are
available at the time of the permit application?

7.

Dueling agencies: The permit applicant argued that EPA’s interpretation of the

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404(b)(1) Guidelines is not entitled to deference in this case because the Corps,
rather than EPA, administers the Section 404 permit program on a daily basis. The
court did not ultimately determine whether EPA’s interpretation was entitled to
greater deference than the Corps’ interpretation because the court concluded that
EPA’s interpretation was not arbitrary or capricious and was valid even without any
additional deference. However, if the court had to decide the question, would
EPA’s interpretation be entitled to greater deference than the Corps if they
interpreted the Guidelines differently? What is the analysis that should be used to
resolve that issue?
8.

Less adverse impact - Buy down: The Corps granted the permit in this case
because the decisionmaker concluded that the practicable alternatives to the
proposed discharge would not have less adverse impact on the aquatic
environment when compared to the impacts of the proposed discharge, taking into
consideration the off-site mitigation for the proposed discharge. At the time, it was
not unusual for the Corps to allow permit applicants to satisfy the alternatives
analysis by “buying down” (reducing) the effects of a proposed discharge to a level
where they would be equal to or less than the effects of practicable alternatives.
However, in 1990, EPA and the Corps entered into a Memorandum of Agreement
that clarified that compensatory mitigation should not be considered in determining
the effects of a proposed discharge for purposes of the alternatives analysis
required by the Section 404(b)(1) Guidelines. See U.S. Army Corps of Engineers
& U.S. Environmental Protection Agency, Memorandum of Agreement: The
Determination of Mitigation Under the Clean Water Act Section 404(b)(1)
Guidelines (Feb. 6, 1990). The Corps and EPA still follow that approach today.
See 33 C.F.R. § 332.1(f)(2).

9.

Considering cost in determining practicability: The preamble to the 404(b)(1)
Guidelines provides that “[t]he mere fact that an alternative may cost somewhat
more does not mean it is not practicable.” See 45 Fed. Reg. 85336, 85339 (Dec.
24, 1980). However, if the alternative is “unreasonably expensive”, it will not be
considered to be “practicable.” Id. at 85343. Although the analysis is very factsensitive, cases where courts have found that alternatives are not “practicable”
due to the cost include James City County v. U.S. Environmental Protection
Agency, 955 F.2d 254 (4th Cir. 1992) (cost of alternative would be 50% higher than
cost of proposed activity); Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986)
(alternative would have increased costs by $1 million per year).

10.

Professor Oliver Houck outlines the history of the alternatives analysis and
provides an early critique of the process in Hard Choices: The Analysis of
Alternatives Under Section 404 of the Clean Water Act and Similar Environmental
Laws, 60 U. Colo. L. Rev. 774 (1989).

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Hypothetical
Several years ago, Springfield FC, a minor league professional soccer team, moved out of
the city of Springfield because the club felt that the city did not adequately maintain the
stadium in which they played. The owners of the club, who leased the stadium from the city,
complained that the city did not adequately maintain the turf, the locker rooms, or the
training fields. In addition, the owners of the club complained that there was not adequate
parking at the stadium and that the two lane access roads to the stadium were too small. It
was surprising that so many fans attended the games because the stadium was located
within a mile of the city's retired solid waste landfill, and the smell that emanated from the
landfill was rather unpleasant.
In order to attract another professional soccer team to Springfield, city officials formed the
Springfield Stadium Development Authority (SSDA) on October 31, 2011 to spearhead the
construction of a new stadium in Springfield. The SSDA decided that the stadium should
be located downtown, so that it could spur redevelopment of the city's central business
district. In January, 2012, the SSDA began to explore potential locations for the stadium.
The first property that they considered was a 40 acre parcel of land in the central business
district that was an abandoned zipper factory. Construction on that site would not have
impacted any wetlands, but the SSDA was concerned that the costs of demolishing the
factory and cleaning up any pollution from the site would be exorbitant. An environmental
consultant estimated that clean-up costs could exceed $30 million.
A few weeks later, the SSDA visited a 30 acre plot of undeveloped land that was located a
mile away from the zipper factory, but still in the central business district. At the time, Ned
Rooney, the owner of the site, was listing the property at $7 million. Construction on the site
would not have impacted any wetlands, and the SSDA strongly considered purchasing that
property until they found the Sturridge Family Trust Property.
The Sturridge property is a 40 acre plot of land that is located just outside of the central
business district, near the Springfield River, and was advertised for sale at $6 million.
Although it is located outside of the central business district, SSDA believed that
development of the stadium on that site will still spur redevelopment in the central business
district. Unfortunately, the property contained 20 acres of wetlands, and it would be very
difficult to build the stadium on the property without impacting the wetlands.
In addition to those sites, the SSDA looked at a 50 acre parcel of undeveloped land that
was located in the northern suburbs of Springfield. Construction of the stadium on that site
would not have impacted any wetlands, but the SSDA rejected the site because it was not
located near the central business district. Further, the Springfield city manager identified a
30 acre parcel of vacant land that was located near the central business district (the
Portsmouth site), but the SSDA rejected that site because it was not for sale at the time.
Construction on that site would have impacted 2 acres of isolated wetlands.

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The SSDA also considered upgrading the existing soccer stadium and expanding the
parking and access roads to the stadium, which was located just outside the central
business district. Those improvements would not have impacted any wetlands. Although
the improvements would have cost about $15 million, an economist for the SSDA forecast
that the improvements would increase the value of the stadium by $30 million and could
attract a professional soccer team that would lease the stadium and pay the city enough
money to cover the redevelopment costs within 15 years.
However, the economist also advised the SSDA that construction of a new stadium on the
Sturridge property would likely provide income that was twice as much as the city could
receive if it upgraded the existing stadium.
After exploring all of those sites, the SSDA decided to purchase the Sturridge property. At
the time that they bought the property, the Rooney property had already been sold to
another developer, who had begun construction of a mall on the property.
Since construction of the stadium on the Sturridge property involved a discharge of dredged
or fill material into wetlands that are adjacent to the Springfield River, the SSDA applied to
the Corps of Engineers for a Section 404 permit. The proposed development would destroy
15 acres of wetlands that provide flood control for the downtown area of the city and
important wildlife habitat. The SSDA identified the purpose of the project, in its permit
application as "to construct a soccer stadium for a professional soccer team in an area of
Springfield that will spur redevelopment of the city's central business district."
Which of the properties identified above are likely to be considered "available" alternatives
in the Corps' review of the permit application? Are there any practicable alternatives to the
SSDA's development proposal that would have less adverse impact on the aquatic
ecosystem? Do any presumptions apply to the Corps' review of the permit application? Is
it likely that the Corps will issue the permit to SSDA for the project as proposed by SSDA?

Chapter Quiz
Now that you’ve finished Chapter 6, why not try a CALI Lesson on individual Section
404 permits at: http://cca.li/PX. It should only take about 30 minutes.

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Chapter 7
Mitigation
When the Corps issues a Section 404 permit that authorizes the discharge of dredged or
fill material into wetlands, at least some wetlands are likely to be destroyed or degraded,
even though the permit applicant has taken measures to avoid and minimize the impacts.
For that reason, the Corps has, from the early days of the Section 404 permit program,
included conditions in permits that require the permittee to offset those environmental
harms by providing compensatory mitigation.
I.

Types of Mitigation

There are basically four types of compensatory mitigation:
•
•
•
•

Restoration
Enhancement
Creation
Preservation

Restoration of wetlands involves re-establishing or
rehabilitating wetlands with the goal of returning
natural or historic functions to a former wetland or a
degraded wetland. See 33 C.F.R. § 332.2. Wetlands
are re-established or rehabilitated by manipulating
the physical, chemical or biological characteristics of
a site. Id. For instance, a wetland that has been
drained may be restored by removing underground
drain tiles, plugging open ditches, or building small
dikes. See Michigan Department of Natural
Resources, Wetland Restoration Techniques.
Restoration often provides the most cost-effective
improvement in wetland function. See U.S.
Department of Agriculture, Engineering Field
Handbook, Part 650, Chapter 13, Wetland

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Photo 28 Wetlands Restoration - USDA
Photo on
http://commons.wikimedia.org/wiki/File:
Wetlands_restoration_hughes_co_south_
dakota.jpg

Restoration, Enhancement or Creation 13-2 (Apr. 2008) [hereinafter “USDA Engineering
Field Handbook”]. Sites that will be restored often have wetlands soils and some wetland
plants and mainly require re-establishment of the former hydrology and topography.
Enhancement of wetlands involves manipulating the physical, chemical or biological
characteristics of an existing wetland to improve a particular function or functions. See 33
C.F.R. § 332.2. For instance, enhancement projects might involve diverting a small
stream into a wetland to change the water depth or planting different vegetation in the
wetland in order to provide habitat for different varieties of fish, birds, or other wildlife. See
USDA Engineering Field Handbook 13-2. By improving some functions of wetlands,
though, enhancement projects might impair other functions. See 33 C.F.R. § 332.2. For
example, by improving the habitat for some varieties of fish and wildlife, a project may
degrade the habitat for others. Enhancement projects do not generally increase the
acreage of existing wetlands. Id. While restoration and enhancement projects can both
take place in degraded wetlands, restoration projects focus on returning the site to a prior
condition, while enhancement focuses on changing the functions of the site, without
regard to the prior condition of the site. Wetlands enhancement projects generally require
more management and are more expensive than wetlands restoration projects. See
USDA Engineering Field Handbook 13-2.
Creation (or establishment) of wetlands involves manipulating the physical, chemical or
biological characteristics of land to establish wetlands in uplands or on lands where
wetlands did not previously exist. See 33 C.F.R. § 332.2. Wetland creation is the most
difficult type of compensatory mitigation because it requires bringing water to a site where
it does not naturally occur and establishing vegetation on soils that are not hydric soils.
See National Oceanographic and Atmospheric Administration, An Introduction and User’s
Guide to Wetland Restoration, Creation and Enhancement 11. Consequently, wetland
creation is more expensive and requires more management than other mitigation options.
See USDA Engineering Field Handbook 13-2. Wetlands are often created for only one
function, such as providing wildlife habitat, educational opportunities, or improving water
quality of non-point source runoff. Id. If successful, though, wetland creation provides an
increase in the functions and acreage of wetlands. See 33 C.F.R. § 332.2
Preservation of wetlands involves the permanent protection of ecologically important
wetlands through the implementation of appropriate legal and physical mechanisms, such
as conservation easements or transfer of title. See 40 C.F.R. § 230.93(h). It does not
provide an increase in wetland functions or acreage. See 33 C.F.R. § 332.2
The purpose of compensatory mitigation is to develop long term self-sustaining aquatic
resources that offset adverse effects and are not dependent on human intervention after
the mitigation has been established. See U.S. Army Corps of Engineers, Sacramento
District, Mitigation.

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Of the four types of compensatory mitigation, restoration is generally the preferred option
because it has a greater likelihood of success and impacts potentially ecologically
important uplands less than wetlands creation, and because it provides greater gains in
wetlands functions than wetlands enhancement or preservation. See 33 C.F.R.
§ 332.3(a)(2). Preservation is limited to preserving ecologically important wetlands and
resources and normally is only accepted as part of a package of mitigation that also
includes restoration, enhancement or creation of wetlands resources. See 40 C.F.R.
§ 230.93(h).
Thus, when the Corps issues a Section 404 permit that authorizes the destruction or
degradation of wetlands, the Corps will generally include conditions in the permit that
require the permittee to offset those environmental harms by restoring, enhancing,
creating and/or preserving wetlands.
As will be explained further below, the Corps may require the permittee to carry out and
manage the mitigation project itself, or it may allow the permittee to provide the required
mitigation by purchasing mitigation credits from a mitigation bank that restores, enhances,
creates or preserves wetlands or by paying a fee, “in lieu” of doing the mitigation itself, to
an organization that been approved by the Corps to restore, enhance, create or preserve
wetlands. “Permitee-responsible mitigation”, “mitigation banking” and the “in lieu fee
programs” will be discussed in detail below.
II.

Legal Authority for Mitigation

The Clean Water Act does not explicitly state that Section 404 permits must include
compensatory mitigation requirements, but the statute provides that the 404(b)(1)
Guidelines, which establish the criteria for permit evaluation, should be based on criteria
comparable to the ocean dumping criteria in Section 403(c) of the Clean Water Act, and
those criteria require avoidance and minimization of impacts. See 33 U.S.C. § 1344(b)(1).
Until 2008, the 404(b)(1) Guidelines also did not explicitly require compensatory
mitigation, although they required permittees to take “appropriate and practicable steps
... [to] minimize potential adverse impacts ... on the aquatic ecosystem.” See 40 C.F.R.
§ 230.10(d). For several decades, therefore, the Corps and EPA used guidance
documents, such as memoranda of agreement, action plans, and Regulatory Guidance
Letters, to explain and administer the compensatory mitigation requirements in Section
404 permits.
In 2003, however, Congress included a provision in Section 314 of the National Defense
Authorization Act for Fiscal Year 2004, P.L. 108-136, 117 Stat. 1392, that required the

291

Corps, within two years, to promulgate regulations governing mitigation and mitigation
banking for the Section 404 permitting program. In response, in 2008, a few years late,
the Corps and EPA published compensatory mitigation rules. See 73 Fed. Reg. 19594
(Apr. 10, 2008). The new rules superseded most of the guidance documents that the
agencies previously used to administer the compensatory mitigation requirements. See
33 C.F.R. § 332.1(f).
Incidentally, those regulations also suggest that compensatory mitigation can be required
in order to ensure that an activity authorized by a Clean Water Act Section 404 permit or
a Rivers and Harbors Act Section 10 permit is “not contrary to the public interest.” Id.
§ 332.1(d). However, as noted earlier, the Corps rarely relies solely on its “public interest”
authority to support decisions involving Section 404 permits.
The Corps has also cited the National Environmental Policy Act (NEPA) as a basis for the
mitigation requirements that are included in Section 404 permits. See Memorandum of
Agreement Between the Department of the Army and the Environmental Protection
Agency: The Determination of Mitigation Under the Clean Water Act Section 404(b)(1)
Guidelines § II.A. (Feb. 1990) [hereinafter “1990 MOA”].
Mitigation Resources
Corps Video on Mitigation
National Academy of Sciences Report on Compensatory Mitigation
1990 MOA on Mitigation Between the Corps and EPA
Corps Mitigation Regulations (33 C.F.R. Part 332)
EPA Mitigation Regulations (404(b)(1) Guidelines - especially 40 C.F.R.
Part 230, Subpart J) and EPA Fact Sheet on Mitigation
Example of a Restrictive Covenant for Permittee Mitigation (Corps/Md.)
Model Mitigation Plan Checklist (EPA/Corps - 2003)

III.

Mitigation Sequencing and Permit Conditions

Mitigation requirements are formulated by the Corps, with input from EPA, the Fish and
Wildlife Service and National Marine Fisheries Service, and are included as conditions in
Section 404 permits. If EPA, the Fish and Wildlife Service, or the National Marine
Fisheries Service disagree with the mitigation requirements that the Corps plans to
include in a permit, they can elevate their dispute to higher levels within the agencies
pursuant to the 404(q) dispute resolution process described in the last chapter. While the
Corps makes the final determination regarding the mitigation conditions included in the
permit, EPA retains the authority to veto the permit if it concludes that the mitigation is not

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adequate. See Chapter 8, infra.
Since mitigation requirements are included as conditions in the permit, the Corps can
bring enforcement actions against the permittee if the permittee does not comply with the
mitigation requirements. See 33 U.S.C. § 1344(s).
As noted in the last chapter, when the Corps evaluates alternatives to a permit applicant’s
proposed project under the Section 404(b)(1) Guidelines to determine whether there are
practicable alternatives that have less adverse impacts on the aquatic environment, the
Corps compares the effects of the alternatives to the effects of the proposed project,
without regard to any mitigation. It does not compare the effects of alternatives to the
effects of the proposed project, as reduced by mitigation measures. It is only after the
Corps determines that there are no practicable alternatives to the proposed discharge
that the Corps addresses mitigation. This approach was first announced in a 1990
Memorandum of Agreement between the Corps and EPA. See 1990 MOA, supra.
The 1990 MOA creates a mitigation sequencing process to implement the
requirement in the Section 404(b)(1) Guidelines that the Corps must require permittees
to take “appropriate and practicable steps ... [to] minimize potential adverse impacts ...
on the aquatic ecosystem.” See 40 C.F.R. § 230.10(d). The three step sequence
consists of (1) avoidance; (2) minimization; and (3) compensatory mitigation; in that
order.

•
•
•

Mitigation Sequence
Avoid
Minimize
Mitigate

Avoid: As the first step in the process, the Corps must ensure that the proposed
discharge avoids impacts to wetlands and the aquatic ecosystem. It does this through the
alternatives analysis described above. If there is a practicable alternative to the proposed
discharge that would have less adverse impacts on the aquatic environment, the Corps
may not issue a permit authorizing the proposed discharge. The 1990 MOA explicitly
provided that “Compensatory mitigation may not be used as a method to reduce
environmental impacts in the evaluation of the least environmentally damaging
practicable alternatives for the purposes of requirements under Section 230.10(a).” See
1990 MOA, § II.C.1. The alternatives analysis, therefore, helps ensure that the permittee
avoids impacts to wetlands and aquatic resources if practicable.

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Minimize: The second step in the mitigation sequence is minimization. Impacts to
wetlands and the aquatic environment that cannot be avoided must be minimized. As the
1990 MOA notes, the 404(b)(1) Guidelines provide that appropriate and practicable steps
to minimize adverse impacts will be required through project modifications and permit
conditions. See 40 C.F.R. § 230.10(d) Subpart H of the Guidelines outlines several
actions to minimize impacts, including actions concerning the location of the discharge
(i.e., confining it to minimize smothering organisms); actions concerning the material to
be discharged (i.e., to reduce the potency and availability of pollutants); actions controlling
the material after discharge (i.e., capping contaminated material with clean material);
actions affecting the method of dispersion (setting limits on the amount of material
discharged per unit of time or volume of receiving water); actions affecting plant and
animal populations (i.e., avoiding sites having unique habitat value) and others. See 40
C.F.R. Part 230, Subpart H. The Corps includes such requirements as conditions of
Section 404 permits.
Mitigate: The final step in the mitigation sequence is compensatory mitigation. Since
a proposed discharge may still cause adverse impacts to the aquatic environment after
the Corps has required the permittee to avoid and minimize the impacts, the Corps
includes conditions in Section 404 permits to require compensatory mitigation for those
remaining adverse effects. The MOA provides “Appropriate and practicable
compensatory mitigation is required for unavoidable adverse impacts which remain after
all appropriate and practicable minimization has been required.” See 1990 MOA § II.C.3.
In addition to creating the mitigation sequence to be used when evaluating Section 404
permit applications, the 1990 MOA clearly provided that mitigation requirements “shall be
conditions” of Section 404 permits and that the Corps should deny Section 404 permits
“[i]f the mitigation plan necessary to ensure compliance with the Guidelines is not
reasonably implementable or enforceable.” Id. § III.E.
The 1990 MOA was challenged shortly after the agencies entered into the agreement,
but the federal district court hearing the challenge held that the MOA was an interpretive
rule, rather than a substantive or legislative rule, and that the challenge to the MOA was
not ripe. See Municipality of Anchorage v. United States, 21 ELR 20119 (D. Alaska 1990),
aff’d 980 F.2d 1320 (9th Cir. 1992).
The legality of mitigation sequencing no longer depends on the legality or enforceability
of the 1990 MOA, however, as the Corps and EPA incorporated the sequencing
requirement into the 2008 mitigation regulations. See 33 C.F.R. § 332.1(c). While those
regulations superseded most of the other mitigation guidance documents issued by the
Corps prior to the regulations, the regulations provided that the 1990 MOA remained in
effect, except for portions of the MOA that addressed the amount, type and location of
compensatory mitigation projects. Id. § 332.1(f)(2).

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IV.

Amount and Type of Mitigation Required

A.

No Net Loss

The presumptions and policies that the Corps uses to determine how much compensatory
mitigation and what type of compensatory mitigation are required have evolved over time,
but have always left considerable discretion in the hands of the individuals that are
reviewing the permit applications. However, the overarching goal to be used in calculating
the amount and type of mitigation has remained fairly constant. Beginning with the 1990
MOA, the Corps and EPA indicated that they would “strive”, in making decisions regarding
compensatory mitigation, “to achieve a goal of no overall net loss of values and
functions.” See 1990 MOA § II.B. However, they stressed that the goal “may not be
achieved in each and every permit action.” Id. In theory, therefore, in most cases, the
compensatory mitigation that will be required for each permit should replace the values
and functions (and not simply acreage) of the wetlands that will be destroyed or
degraded by the project authorized by the permit. The “no net loss” policy was re-affirmed
in Regulatory Guidance Letters in 2001, see U.S. Army Corps of Engineers , RGL 01-01,
Guidance for the Establishment and Maintenance of Compensatory Mitigation Projects
Under the Corps Regulatory Program Pursuant to Section 404(a) of the Clean Water Act
and Section 10 of the Rivers and Harbors Act of 1899 (Oct. 31, 2001), and 2002, see U.S.
Army Corps of Engineers, RGL 02-02, Guidance on Compensatory Mitigation Projects
for Aquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 § 2.c.
(Dec. 24, 2002) (clarifying that Districts will strive to achieve the goal on a cumulative
basis, even though it may not be achieved for every permit action, and that the Corps will
achieve the goal programmatically). While the Corps’ 2008 permit regulations did not
explicitly codify the “no net loss” policy, the preamble to the regulations indicated that the
portions of the 1990 MOA that created the policy were not superseded by the regulations.
See 70 Fed. Reg. at 19603.
B.

On-site and in-kind

While the “no overall net loss of values and functions” goal has not changed, the manner
in which it has been implemented in permit decisions has changed over time. The 1990
MOA established preferences for “on-site” compensatory mitigation and “in-kind”
compensatory mitigation. The MOA indicated that compensatory actions “should be
undertaken, when practicable, in areas adjacent or continuous to the discharge site.” See
1990 MOA § II.C.3. In addition, it provided that “[i]f on-site compensatory mitigation is not
practicable, off-site compensatory mitigation should be undertaken in the same
geographic area if practicable.” Id. Since the goal of the mitigation was to replace the
values and functions of the wetlands destroyed or degraded by the permitted discharge,

295

mitigation measures at or near the site of those wetlands were deemed to be more likely
to replace those values and functions. If a wetland is providing flood control for a particular
area, for instance, creation of another wetland at a different location is unlikely to serve
that same function. The preference for “in-kind” compensation (replacement of a
particular type of wetland lost with a similar type of wetland) was based on similar
considerations. As noted in Chapter 1, infra, a freshwater marsh will likely provide values
and functions that may not be replaced by a forested swamp. The policy presumed that
wetlands were more likely to replace the values and functions of wetlands destroyed or
degraded if the mitigation wetlands were the same type of wetlands as those destroyed
or degraded.
On-site and in-kind mitigation may be more likely to replace the values and functions of
the wetlands being destroyed or degraded by a section 404 permitted discharge than offsite or out-of-kind mitigation if the mitigation measures are actually being implemented
successfully. However, in 2001, the National Research Council of the National
Academy of Sciences issued a report that suggested that the Corps was not adequately
monitoring mitigation projects and that the literature on mitigation at the time suggested
that “required mitigation projects often are not undertaken or fail to meet permit
conditions.” See National Research Council. Compensating for Wetland Losses Under
the Clean Water Act 3 (The National Academies Press, 2001) [hereinafter “NRC
Mitigation Report”]. The Council suggested that the Corps should consider the values and
functions that wetlands serve within a watershed when making mitigation decisions,
rather than simply focusing on the impacts at or near the site. Id. at 3-4. The Council
suggested that “a preference for on-site and in-kind mitigation should not be automatic,
but should follow from an analytically based assessment of the wetland needs in the
watershed and the potential for the compensatory wetland to persist over time.” Id. The
Council’s report explained that on-site mitigation measures may frequently be
unsuccessful because the hydrology, soils and vegetation at the site may not support the
mitigation project, and recommended selection of sites to promote development of selfsustaining mitigation. Id. at 4-5. Regarding the preference for “in-kind” mitigation, the
report also noted that some types of wetlands, such as fens and bogs, could not be
restored based on the knowledge at the time of the report. Id. at 4.
The Corps responded to the National Research Council Report by issuing a 2001
Regulatory Guidance Letter that softened the preferences. See RGL 01-01, supra. The
agency was heavily criticized because it made major changes to the 1990 MOA in the
RGL without involving EPA or other agencies in the development of the policy, so the
agency replaced that Guidance Letter a year later with a new Regulatory Guidance Letter
that it developed with input from the other agencies. See RGL 02-02, supra. The new
guidance indicated that mitigation should be used to “maintain wetland functional levels
within a watershed” and that off-site mitigation could be used “when it provides more
watershed benefit than on-site mitigation.” Id. § 2.g. Similarly, the guidance indicated that

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out-of-kind mitigation was appropriate when it was “practicable and provides more
environmental or watershed benefit than in-kind compensation.” Id. § 2.h.
That Guidance was superseded by the 2008 regulations, though, which now establish a
hierarchy for selecting compensatory mitigation and which establish a preference for
selecting mitigation based on a watershed approach. See 33 C.F.R. § 332.3(b)(4). Thus,
the 1990 MOA preference for on-site, in-kind mitigation has been replaced by a
preference for selecting mitigation on a watershed basis. In situations where a watershed
approach is not practicable, though, the regulations maintain a preference for on-site and
in-kind mitigation over off-site and out-of-kind mitigation. Id. § 332.3(b)(5).
C.

Ratios and Timing

Two other important issues that arise concerning compensatory mitigation involve the
amount of mitigation that will be required and the timing of the mitigation project.
Regarding the amount of mitigation, the 1990 MOA recognized that implementation of
the “no net loss” goal meant that mitigation should provide at least a one to one
replacement of the values and functions of wetlands, and not simply a one to one
replacement of acreage. See 1990 MOA § II.B. However, the MOA also provided that in
the absence of more definitive information on the functions and values of specific
wetlands, a minimum 1 to 1 acreage replacement ratio may be used as a reasonable
surrogate for no net loss of values and functions. Id. Thus, if 10 acres of wetlands were
being destroyed or degraded, the Corps could require the permittee to provide 10 acres
of wetlands mitigation in the absence of more definitive information on the values and
functions of those wetlands.
Even if it is possible to precisely identify the values and functions that are being lost when
a wetland is destroyed or degraded and to precisely identify the values and functions that
could be provided by wetlands that may be restored, enhanced, created, or preserved,
the ratio adopted by the Corps for mitigation projects will vary depending on the type of
project (restoration, enhancement, creation, or preservation) because some types of
mitigation projects, like preservation, do not provide any increase in values or functions
to offset the values and functions lost, and because some mitigation projects, like
restoration, may have greater chances to succeed than others, like wetlands creation.
The 1990 MOA recognized this dynamic, providing that the 1 to 1 ratio “may be greater
where the functional values of the area being impacted are demonstrably high and the
replacement wetlands are of lower functional value or the likelihood of success of the
mitigation project is low [and that ] ... the ratio may be less than 1 to 1 for areas where
the functional values associated with the area being impacted are demonstrably low and
the likelihood of success associated with the mitigation proposal is high.” Id. Accordingly,
while the Corps might require a permittee to restore 10 acres of wetlands to replace 10

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acres of wetlands (1:1 ratio), they may require the permittee to create 30 acres (3:1 ratio),
instead of restoring 10, to replace those wetlands, since the likelihood of successful
wetland creation may be lower than the likelihood of successful restoration.
The Corps re-affirmed the 1990 MOA approach in the 2002 Regulatory Guidance Letter,
see RGL 02-02, supra, but the 2008 regulations superseded both that RGL and the
portion of the 1990 MOA that created that approach. The regulations adopt a similar
approach, though, and provide little more certainty regarding specific ratios than the prior
guidance provided. Specifically, the regulations indicate that the amount of compensatory
mitigation must be sufficient to replace “lost aquatic functions”, based on “appropriate
functional or conditional assessment methods or other suitable metrics.” See 33 C.F.R.
§ 332.3(f)(1). Where those methods or metrics aren’t available, the regulations provide
that “a minimum one to one acreage or linear foot compensation ratio must be used.” Id.
They also require the permit issuer (district engineer) to require a ratio greater than one
to one “to account for the method of compensatory mitigation (e.g., preservation), the
likelihood of success, differences between the functions lost at the impact site and the
functions expected to be produced by the compensatory mitigation project, temporal
losses of aquatic resource functions, the difficulty of restoring or establishing the desired
aquatic resource type and functions, and/or the distance between the affected aquatic
resource and the compensation site.” Id. § 332.3(f)(2).
While the guidance and regulations leave considerable discretion to the permit issuer to
identify specific ratios for compensatory mitigation, in practice, most Districts have
adopted guidance that identify ratios for specific types of mitigation projects. See
Margaret Strand, Wetlands Deskbook 93 (Environmental Law institute, 3d ed., 2009).
Regarding the timing of compensatory mitigation, in light of concerns that many
mitigation projects were not being implemented or were not succeeding, the 2001
National Research Council report recommended that “compensatory mitigation should be
in place concurrent with, and preferably before, permitted activity” and that “there should
be effective legal and financial assurances for long-term site sustainability and monitoring
of all compensatory wetland projects”. See NRC Mitigation Report, supra, at 7. The 2008
regulations codified those requirements, (1) providing that “[i]mplementation of the
compensatory mitigation project shall be, to the maximum extent practicable, in advance
of or concurrent with the activity causing the authorized impacts”; (2) requiring additional
compensatory mitigation to offset any losses of wetland functions that occur between the
time of the discharge and the implementation of the mitigation, see 33 C.F.R. § 332.3(m);
and (3) requiring “sufficient financial assurances to ensure a high level of confidence that
the compensatory mitigation project will be successfully completed.” Id. § 332.3(n).

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Questions and Comments
1.

Monitoring: Although the 1990 MOA indicated that monitoring was an important
aspect of mitigation, see 1990 MOA § III.D, the 2001 National Academy of
Sciences National Research Council Report suggested that the Corps was not
adequately monitoring and tracking the success of mitigation projects associated
with Section 404 permits. See NRC Mitigation Report, supra, at 3. A 2005
Government Accountability Office (GAO) report also concluded that the Corps was
infrequently monitoring and rarely inspecting compensatory mitigation projects.
See U.S. Government Accountability Office, GAO-05-898, Corps of Engineers
Does Not Have an Effective Oversight Approach to Ensure That Compensatory
Mitigation is Occurring (Sept. 8, 2005). In light of those reports, the Corps’ 2008
mitigation regulations require permittees to monitor the mitigation and submit
reports pursuant to a monitoring plan approved by the Corps, but the regulations
provide flexibility to the Corps to tailor the monitoring requirements and reporting
frequency to the specific mitigation project. See 33 C.F.R. § 332.6. For a detailed
examination of the role that outside organizations have played, or should play, in
monitoring and enforcing mitigation requirements, see Jessica Owley, The
Increasing Privatization of Environmental Permitting, 46 Akron L. Rev. 1091
(2013).

2.

Success of mitigation: Various studies have found that (1) fewer than 30% of the
mitigation sites reviewed were successful in replacing the functions of the wetlands
sites that they replaced; (2) fewer than 50% of mitigation sites reviewed were
ecologically successful; and (3) failure rates for some types of wetlands are
significantly higher than the failure rate for other types of wetlands, resulting in a
shift in the predominance of various types of wetlands. See Rebecca L. Kihslinger,
Success of Wetland Mitigation Projects, 30:2 National Wetlands Newsletter 14, 15
(2008). In addition, a recent EPA Office of the Inspector General report criticized
EPA for claiming that the agency reported “no net loss” of wetlands in the Section
404 regulatory program for fiscal years 2009-2011 because the agency presumed
that mitigation projects for permitted activities will meet performance standards,
when many of the projects failed to meet those standards. See U.S. Environmental
Protection Agency, Office of the Inspector General, Report No. 14-P-0191, EPA
Needs to Clarify its Claim of “No Net Loss” of Wetlands 1-3 (April 16, 2014). How
should the information reported by Rebecca Kihslinger and the information in the
Inspector General report affect permitting and mitigation decisions?

3.

Mitigation Planning: The 2008 mitigation regulations also established planning
requirements for mitigation, so that each mitigation project must have a mitigation
plan approved by the Corps including the following elements:

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Objectives

Amount, Type and Method (restoration, etc.) of mitigation and the
manner in which it addresses the needs of the watershed

Site Selection

Factors considered in selecting the mitigation site

Site Protection
Instrument

Legal instruments to be used to protect the mitigation site (e.g.
conservation easement)

Baseline information

Description of the mitigation site before mitigation

Determination of
credits

Explanation of how the proposed mitigation site provides sufficient
compensation for impacts from the permitted activity

Mitigation Work Plan

Detailed work plan for developing the mitigation project

Maintenance Plan

Plan for maintenance after initial construction is completed

Performance
standards

Ecologically-based standards to be used to determine whether the
mitigation is meeting its objectives

Monitoring
Requirements

Plan outlining parameters to be monitored, and the timing of
monitoring and reporting

Long Term
Management Plan

Plan for long-term sustainability, including financing and
identification of the persons responsible for long-term management

Adaptive
Management Plan

Strategy to address unforeseen changes in site conditions or other
components of the mitigation project

Financial Assurances

Financial assurances for the project (e.g. performance bond)

See 33 C.F.R. § 332.4(c).
4.

Shortly after the agencies adopted the 2008 mitigation rule, several members of
the National Research Council’s Committee on Mitigating Wetland Losses
critiqued the rule, discussing discuss the importance of the watershed approach,
adaptive management and implementation of the rule. See Royal C. Gardner, Joy
Zedler, Ann Redmond, R. Eugene Turner, Carol A. Johnston, Victoria R. Alvarez,
Karen L. Prestegaard, and William J. Mitsch, Compensating for Wetland Losses
Under the Clean Water Act (Redux): Evaluating the Federal Compensatory
Mitigation Regulation, 33 Stetson L. Rev. 213 (2009). For a detailed examination
of the ecosystem focus of the new regulations, see J.B. Ruhl, James Salzman &
Iris Goodman, Implementing the New Ecosystem Services Mandate of the Section
404 Compensatory Mitigation Program - A Catalyst for Advancing Science and
Policy, 38 Stetson L. Rev. 251 (2009).

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V.

Mitigation Banking

Although the Corps initially required permittees to undertake compensatory mitigation
projects themselves on land that they owned or would acquire (permittee responsible
mitigation), other mitigation alternatives have gained popularity over time and the 2008
mitigation regulations established a preference for those other alternatives. The major
alternatives to permittee responsible mitigation are mitigation banking and in lieu fee
programs (which will be discussed later in this chapter).
In mitigation banking, a person or entity restores, enhances, creates or preserves
wetlands in a compensatory mitigation project and generates credits that can be used to
satisfy mitigation requirements for a Section 404 permit. See 33 C.F.R. § 332.2. While
the first mitigation banks generated credits that the banker would use to satisfy mitigation
requirements for projects that the banker was undertaking, many mitigation banks today
are entrepreneurial banks, and sell credits to third parties who are engaged in
development projects and need to provide compensatory mitigation as a condition of
obtaining a Section 404 permit.
Although the 1990 MOA between the Corps and EPA provided that mitigation banking
could be an acceptable form of compensatory mitigation, see 1990 MOA § III.C, the MOA
limited the situations in which banking could be used, since the MOA created the
preference for on-site, in-kind mitigation described above. Entrepreneurial banks, by their
nature, will be used to provide mitigation for many different projects and will not generally
be on-site of any of those projects. As the preference for on-site, in-kind mitigation
softened and the Corps developed mitigation banking guidance, see Federal Guidance
for the Establishment, Use and Operation of Mitigation Banks, 68 Fed. Reg. 58605 (Nov.
28, 1995) [hereinafter “Mitigation Banking Guidance”], mitigation banking became much
more popular.
A.

Benefits of Mitigation Banking

Mitigation banking provides benefits for the environment, the government and permit
applicants. As noted above, the National Academy of Sciences raised concerns that
many of the traditional permittee-responsible mitigation projects were not successful.
Mitigation banking addresses that problem because the mitigation banks must meet
performance standards before credits are released and can be used to satisfy permit
requirements. See 33 C.F.R. § 332.8. Thus, it is less likely that the mitigation will result in
a loss of wetland functions. In addition, mitigation banks are more likely to generate
successful mitigation because they can bring together money and expertise that the
individual permittees would not be able to access if they were developing mitigation
projects on-site separately. See Mitigation Banking Guidance at 58,607. Mitigation banks

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can provide additional environmental benefits compared to a series of separate, smaller
mitigation projects, in that “[i]t may be more advantageous for maintaining the integrity of
the aquatic ecosystem to consolidate compensatory mitigation into a single large parcel
or contiguous parcels”. Id.
The Corps and EPA benefit from mitigation banking because it is easier to monitor and
enforce mitigation requirements when the mitigation projects are consolidated in a large
parcel or contiguous parcels, as opposed to dozens or hundreds of locations around a
state. Id. Better monitoring and enforcement also benefits the environment, by increasing
the likelihood that the mitigation will be successful. While a 2005 GAO report criticized
the Corps’ monitoring of mitigation banking projects, it concluded that the Corps provided
more oversight for those projects than it provided for the permittee-responsible projects.
See GAO Mitigation Oversight Report, supra.
Finally, permit applicants benefit from mitigation banking because applicants can obtain
permits quicker and at a lower cost if they can obtain credits from a mitigation bank than
if they develop permittee responsible mitigation projects. See Mitigation Banking
Guidance at 58,607. Applicants will save time because the Corps should be able to review
a mitigation project involving purchase of credits from a mitigation bank much more
quickly than it could evaluate a site-specific mitigation proposal prepared by the permit
applicant. Applicants should be able to save money because the economies of scale
involved in developing a mitigation bank should make mitigation credits from banks less
expensive than on-site mitigation projects.
Permit applicants also receive another important benefit through mitigation banking.
When a permit applicant satisfies its mitigation requirement by purchasing credits from a
mitigation bank approved by the Corps of Engineers, the Corps will include that as a
condition of the permit and the mitigation banker, rather than the permittee, will be
responsible for the success of the mitigation. The permittee will not be required to provide
alternative mitigation if the bank’s mitigation fails.
Questions and Comments
1.

Size matters: Although the federal guidance suggested that it may be more
advantageous to consolidate mitigation into a larger parcel, environmental
advocates have pointed out that small, isolated wetlands provide unique ecological
and water quality functions and that an assemblage of a series of small wetlands
scattered across a wide geographic area can provide habitat benefits that a single
large wetland cannot provide. See Environmental Law Institute, Banks and Fees:
The Status of Off-Site Wetland Mitigation in the United States 28 (Sept. 2002)
[hereinafter “ELI Mitigation Banking Study”].

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2.

Success: Despite the benefits outlined above, some studies have suggested that
mitigation banks are no more successful at replacing wetland values and functions
than permittee-responsible mitigation. See Rebecca L. Kihslinger, Success of
Wetland Mitigation Projects, 30:2 National Wetlands Newsletter 14, 15 (2008).

3.

Takings: What effect might a robust mitigation banking system as an option for
compensatory mitigation have on wetland permitting decisions and the likelihood
and success of takings challenges based on Section 404 permit denials? See
Chapter 11, infra, for an extended discussion of regulatory takings.

4.

Limitations: If compensatory mitigation is designed to replace the functions and
values of wetlands that are destroyed or degraded by a Section 404 permitted
activity, can you see where that might be difficult to do in some cases by relying
on mitigation banking? Can mitigation banking be reconciled with the goal of “no
net loss”?

B.

Historical Development

As noted above, the 1990 MOA authorized mitigation banking as a form of compensatory
mitigation, but created some roadblocks to its broad adoption by establishing the on-site,
in-kind mitigation preference. In the early years of mitigation banking, most of the
mitigation banks were single-user banks, where an entity that was engaged in a series
of development projects that required Section 404 permits would develop a large
compensatory mitigation project in advance of those development projects, and would
rely on that project to serve as compensatory mitigation for the Section 404 permits that
it would need to obtain for the future development projects. While some of those early
banks were operated by private developers, most were operated by public entities. By
1992, for instance, almost half of the mitigation banks in existence were developed by
state departments of transportation for their road development projects. See ELI
Mitigation Banking Study at 15. Congress encouraged this trend by making federal
highway funding available for such mitigation banks in the Intermodal Surface
Transportation Efficiency Act of 1991, Pub. L. 102-240, 105 Stat. 1914 (2001).
Mitigation banking began to gain popularity after the Corps, EPA, the Natural Resources
Conservation Agency and NOAA issued federal mitigation banking guidance in 1995. See
Mitigation Banking Guidance, supra. The guidance identified legal authority for mitigation
banking and outlined a process for review and approval of mitigation banks, creating
much more certainty for prospective mitigation bank developers. Id. It also emphasized
that the agencies’ preference for on-site mitigation should not preclude the use of
mitigation banking when banking is environmentally preferable. Id. § II.D.4.

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In 1998, Congress fueled the growth of mitigation banks further by expressing a
preference for their use on federally funded highway projects. See Transportation Equity
Act for the 21st Century, Pub. L. No. 105-178, 112 Stat. 107 (1998). Between 1993 and
2000, the number of mitigation banks approved by the Corps of Engineers grew from 44
to more than 230. See Royal C. Gardner, Mitigation in Wetlands Law and Policy:
Understanding Section 404 266 (American Bar Association, Section on Environment,
Energy and Resources 2005). By 2005, 405 mitigation banks had been approved by the
Corps, and 72% of those were entrepreneurial banks. See Royal C. Gardner, Lawyers,
Swamps, and Money 119 (Island Press 2011). Despite the growth in popularity of banks,
developers complained that the agency’s mitigation guidelines placed them at a
disadvantage with respect to traditional permittee-responsible mitigation. According to a
2006 study, permittee-responsible mitigation still accounted for approximately 60% of
wetland mitigation at that time, based on mitigation acreage. Id. at 140.
In 2008, when the Corps adopted its mitigation regulations, the agency indicated that the
rule applied equivalent standards and criteria to all sources of compensatory mitigation,
to the maximum extent practicable. See 73 Fed. Reg. 19594 (Apr. 10, 2008). However,
the final rules largely abandoned the on-site mitigation preference and created a hierarchy
of preferred methods of compensatory mitigation, with mitigation banking at the top of the
hierarchy. See 33 C.F.R. § 332.3(b). The hierarchy proceeds as follows:
•
•
•
•
•

Mitigation Banking
In Lieu Fee Programs
Permittee-responsible mitigation under a watershed approach
Permittee-responsible mitigation through on-site and in-kind mitigation
Permittee-responsible mitigation through off-site and out-of-kind mitigation

Id. Within a few years after the regulations were adopted, the number of banks approved
by the Corps had grown to over 1000. See Royal C. Gardner, Lawyers, Swamps, and
Money 119 (Island Press 2011).
C.

Nuts and Bolts of Mitigation Banking

A mitigation bank can only generate credits that can be used for compensatory mitigation
if the bank is authorized to do so by the Corps of Engineers through an approved a
mitigation banking instrument. See 33 C.F.R. § 332.8.
In order to receive approval from the Corps, the bank must prepare a mitigation plan that
includes the same elements described above for permittee-responsible mitigation (i.e.,
objectives, baseline information, work plan, financial assurances, etc.). See 33 C.F.R.

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§ 332.4(c). Mitigation banking instruments are reviewed by an interagency review team
(IRT) that includes representatives of the Corps, EPA, Fish and Wildlife, NOAA, and can
include representatives of state, local and tribal resource agencies in appropriate
circumstances. See 40 C.F.R. § 230.98(b).
When a bank is approved by the Corps, it will be approved with a specific geographic
service area, meaning that the credits generated by mitigation from the bank can only be
used as compensatory mitigation for projects within that service area. See 33 C.F.R.
§ 332.3(b)(2). Normally, mitigation banks can only sell credits for use within the
watershed in which the bank is located. Id. § 332.3(b)(1). While bankers would prefer
larger service areas that include more potential customers, it is more likely that the
mitigation provided by the bank will offset the impacts of the development for which the
mitigation is provided when the bank is located in the same watershed as the
development. While banks may be allowed to sell some credits before their mitigation
project has been completed, the mitigation banking instrument will outline milestones that
the bank must meet before issuing specific amounts of credits. Id. § 332.3(b)(1). The
regulations provide that a significant share of the credits from the bank should be withheld
until the bank fully achieves the ecological performance standards set forth in the banking
instrument. See 40 C.F.R. § 230.98(o)(8).
Questions and Comments
1.

Cost of credits: Neither the Corps nor any other agency regulates the cost of
mitigation credits sold by banks. The bank can determine the price that it would
like to charge for the credits and Section 404 permit applicants can decide whether
to buy the credits at that price, buy from another banker at a different price, or
develop their own mitigation proposal. The Ecosystem Marketplace estimates that
the average cost of mitigation credits in 2008 was $74,535 per acre, although the
prices ranged from $3,000 to $653,000 per acre. See Ecosystem Marketplace,
U.S. Wetland Banking. They also estimated that developers spent over $1 billion
on wetland mitigation credits in 2008. Id.

2.

Responsibility: As noted above, when a permit applicant receives approval from
the Corps to satisfy the compensatory mitigation requirements for a Section 404
permit by purchasing credits from a mitigation bank, the bank is then responsible,
rather than the permit applicant, for the success of the mitigation. See 33 C.F.R.
§ 332.2. Thus, if the mitigation fails, the Corps will not bring an enforcement action
against the permittee for violating the permit conditions and will not require the
permittee to provide alternate mitigation. Instead, the Corps will likely suspend the
mitigation bank’s operation and prevent additional credit releases and sales.

3.

Size: As of 2011, the average size of approved mitigation bank sites was 466

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acres, although the average size varied considerably by region. For instance, the
average size of banks in Minnesota, which had the most approved and operational
banks at that time, was 49 acres, while the average size of banks in Florida was
1,999 acres. See Steven Martin and Robert Brumbagh, Entering a New Era: What
Will RIBITS Tell Us About Mitigation Banking?, 33 Natl. Wetlands Newsletter, 3:16
(2011).
4.

In addition to wetland mitigation banking, several other emerging markets, such as
water quality trading, species conservation banks, and greenhouse gas trading,
can encourage wetland preservation. For an interesting overview of the issues
raised by the commodification of wetlands, see Fred Bosselman, Swamp Swaps:
The ‘Second Nature’ of Wetlands, 39 Envtl. L. 577 (2009). See also, James
Salzman & J.B. Ruhl, Currencies and the Commodification of Environmental Law,
53 Stanford L. Rev. 607 (2000).

5.

For a detailed description of the development of mitigation banking and the
operation of mitigation banks, see Royal C. Gardner, Banking on Entrepreneurs:
Wetlands, Mitigation Banking and Takings, 81 Iowa L. Rev. 527 (1996).
Mitigation Banking Resources
RIBITS (Corps’ Regulatory In Lieu Fee and Bank Information Tracking System - search for
mitigation banks, service area, credits available, reports, etc.)
1995 Mitigation Banking Guidance (superseded by the 2008 mitigation regulations
EPA Mitigation Banking Website
2005 GAO Mitigation Oversight Report
ELI Report on Mitigation Banking (2002)
Model Mitigation Banking Instrument (Corps - but predates 2008 regulations)
Example of a Mitigation Banking Restrictive Covenant (Corps/Md.)
The Conservation Fund - Mitigation Bank Training for IRT members (includes many sample
documents)

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Research Problems
Agency Data: The Corps of Engineers maintains an online database of approved
mitigation banks (RIBITS) that permit applicants can use to find mitigation credits for
their projects. Using that database, answer the following questions:
1. How many commercial mitigation banks in Missouri are currently approved to sell
wetland mitigation credits? Remember that single client banks do not sell credits
and remember to focus on banks that sell wetland credits, as the Corps database
also includes banks that sell stream mitigation credits.
2. The Corps of Engineers is requiring a permit applicant in Sturgeon Lake,
Minnesota to provide 1 acre of “shallow marsh” wetlands as mitigation for a project
on his property on Island Lake Road in Sturgeon Lake, Minnesota. Please identify
any mitigation banks that he could contact to buy those credits. It may be helpful to
know that the longitude and latitude coordinates of the property where the project
will take place are 46.415175, -92.730863.
VI.

In Lieu Fee Programs

In lieu fee mitigation programs are the other alternative to traditional permitteeresponsible compensatory mitigation. In this scenario, the Corps authorizes the permittee,
in lieu of implementing a compensatory mitigation project itself, to pay a third party that is
implementing a compensatory mitigation project approved by the Corps. See 33 C.F.R.
§ 332.2. The entity that is performing the mitigation project must be a government or nonprofit natural resources management entity. Id. Prior to the 2008 regulations, the Corps
frequently entered into Memoranda of Agreement with the government or non-profit
entities to establish guidelines for the mitigation, see Royal C. Gardner, Money for
Nothing? The Rise of Fee Mitigation, 19 Va. Envt’l. L. J. 1, 23-30 (2000), but the
responsibilities of the program sponsors are now governed by the 2008 mitigation
regulations. See 73 Fed. Reg. 19594 (Apr. 10, 2008). As with mitigation banking, in lieu
fee programs involve “off-site” compensatory mitigation projects.
A.

Benefits and Concerns

In lieu fee programs are different from mitigation banking programs because, in an in lieu
fee program, the government or non-profit entity usually collects money from several
permittees before implementing a mitigation project, and there could be a significant delay
between the collection of the money and the implementation of the project. See ELI
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Mitigation Banking Study at 8. Unlike mitigation banking, even if in lieu fee programs
ultimately replace the functions of wetlands that are destroyed or degraded by Section
404 permitted activities, there will generally be temporal losses of wetland functions. Id.
However, in lieu fee programs can be used to restore a variety of wetland types of varying
sizes in varying locations, while mitigation banks usually create, restore, enhance and/or
preserve a single large site. Id. In addition, in lieu fee programs make it easier for the
Corps to require mitigation for some small projects, such as those authorized by
nationwide permits, for which the Corps might not otherwise require mitigation. See Royal
C. Gardner, Lawyers, Swamps, and Money 129 (Island Press 2011).
For Section 404 permit applicants, in lieu fee programs provide the same benefits as
mitigation banking. They make it quicker and cheaper to obtain a permit, see U.S. General
Accounting Office, GAO-01-325, Wetlands Protection: Assessments Needed to
Determine Effectiveness of In-Lieu Fee Mitigation 9 (May 2001) [hereinafter “GAO In Lieu
Fee Report”], and they provide certainty to the permittee by shifting the responsibility for
the success of the mitigation to a third party, the in lieu fee program sponsor.
For the government, to the extent that in lieu fee programs may involve smaller, scattered
mitigation projects, as opposed to large, contiguous projects, in lieu fee programs may
not provide the same monitoring and enforcement efficiency as mitigation banking.
However, by consolidating the mitigation responsibilities in fewer entities with greater
resources, the Corps still achieves a greater level of efficiency in monitoring and
enforcement than it would in permittee-responsible mitigation, see GAO In Lieu Fee
Report at 9, and the chances of mitigation success may be greater due to the greater
flexibility that is available to the in lieu fee program sponsor in selecting a site for the
mitigation project. See Environmental Law Institute, The Status and Character of In Lieu
Fee Mitigation in the United States 3 (June 2006).
While in lieu fee programs provide benefits for the environment, the permit applicant, and
the government, they have also been criticized. In a 2001 report, the U.S. General
Accounting Office raised concerns that the in lieu fees that were being collected were not
being used to implement mitigation projects in a timely manner, that the Corps was not
adequately monitoring mitigation projects in the programs, and that the mitigation
provided by the projects was not offsetting the impacts authorized by the Section 404
permits. See GAO In Lieu Fee Report at 10. Similarly, a 2005 ELI report found that 58 of
the 87 in lieu fee programs that were in place at the time of the study did not require that
the funds collected be spent on mitigation within a specific time frame. See ELI Mitigation
Banking Study at 110. Prior to the adoption of the 2008 regulations, in lieu fee programs
were also criticized because they frequently authorized preservation as a mitigation
method. Id. at 119-120 (88% of in lieu fee programs authorized preservation).

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B.

History and Regulation

The Corps established the first in lieu fee program in the Vicksburg, Mississippi District in
1987, and had established 63 programs throughout the country by September, 2000. See
GAO In Lieu Fee Report at 7.
In 2000, at about the same time that the GAO was issuing its report criticizing in lieu fee
programs, the Corps, EPA, the Fish and Wildlife Service and NOAA issued
comprehensive in lieu fee guidance. See Federal Guidance on the Use of In-Lieu-Fee
Arrangements for Compensatory Mitigation under Section 404 of the Clean Water Act
and Section 10 of the Rivers and Harbors Act (Oct. 2000). By 2005, the Corps had
approved 87 programs in 27 states. See ELI Mitigation Banking Study at 99. According
to a 2006 study, in lieu fee programs accounted for about 8.4% of the acreage of
compensatory mitigation required in permits at that time. See Royal C. Gardner, Lawyers,
Swamps, and Money 119 (Island Press 2011).
In lieu fee programs were regulated under the federal guidance document until the Corps
adopted the mitigation regulations in 2008, which superseded the guidance. See 33
C.F.R. § 332.1(f)(1). As noted above, the regulations were structured to provide
“equivalent” regulation of all types of compensatory mitigation, but created a hierarchy or
preferred mitigation options, which placed in lieu fee programs below mitigation banking,
but above permittee-responsible mitigation. See 33 C.F.R. § 332.3(b).
The regulations now require in lieu fee programs to be administered pursuant to an in lieu
fee program instrument, similar to mitigation banking instruments, see 33 C.F.R. § 332.2,
to be approved by an interagency review team, similar to mitigation banks, see 40 C.F.R.
§ 230.98(b), and to prepare mitigation plans that address the same 12 factors as the plans
prepared by mitigation banks and by permittees engaged in permittee-responsible
mitigation (i.e., objectives, baseline information, work plan, financial assurances, etc.).
See 33 C.F.R. § 332.4(c). The regulations also require the Corps to identify a geographic
service area in which credits from in lieu fee programs can be used, usually limited to the
watershed in which the mitigation project will take place. See 33 C.F.R. § 332.3(b). As
with mitigation banking, if a permittee is authorized to satisfy its mitigation requirements
by providing funds to an in lieu fee program, the program sponsor, rather than the
permittee is then responsible for the success of the mitigation. See 33 C.F.R. § 332.2. As
noted above, the Corps would then seek relief for any mitigation failure from the in lieu
fee program manager through contract law.
Although the regulations treat in lieu fee programs in a manner that is similar to mitigation
banking in many respects, there is still one important difference between the programs.
Unlike mitigation banks, in lieu fee programs can sell some credits and raise money as
soon as the program instrument has been approved and do not have to wait until the

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mitigation project can demonstrate that it has met various milestones. See 33 C.F.R.
§ 332.8(n). As the mitigation project is implemented and meets milestones, the program
sponsors can sell additional advance credits. Id.
In Lieu Fee Program Resources
RIBITS (Corps’ Regulatory In Lieu Fee and Bank Information Tracking System search for mitigation banks, service area, credits available, reports, etc.)
2008 Corps/EPA Mitigation Regulations
2000 Federal In Lieu Fee Guidance (superseded)
ELI Report on Mitigation Banking an In Lieu Fee Programs (2002)
ELI Report on the Status and Character of In Lieu Fee Mitigation in the U.S. (2006)
In Lieu Fee Mitigation: Model Instrument Language and Resources (ELI - 2009)
ELI/Stetson Report on In Lieu Programs and Implementation (2019)
ELI In Lieu Fee Training Webinars (2013)
In Lieu Fee Programs Approved by the Corps’ Sacramento District

Hypothetical
In a 2006 article, Professors J.B. Ruhl and James Salzman pointed out that when a
developer uses mitigation banking, as opposed to on-site, in-kind mitigation, to satisfy
mitigation requirements for Section 404 permits, the environmental and public benefits
provided by the wetlands that are being destroyed are transferred from the area where the
development is taking place to the area where the mitigation bank is located. See J.B. Ruhl
& James Salzman, The Effects of Wetland Mitigation Banking on People, 28 Natl. Wetlands
Newsletter 8 (2006). Professors Ruhl and Salzman noted that this often means that
development is destroying wetlands in urban areas and replacing them with wetlands in
rural areas. Id. Mitigation banking, therefore, may raise some environmental justice
concerns in its administration.
Consider that as you read the following dialogue between a lawyer and a client regarding
mitigation requirements for a Clean Water Act Section 404 permit. The client has applied to
the Corps of Engineers for a permit to fill 1 acre of coastal wetlands to build a parking deck
in downtown Mobile, Alabama.

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Scene: Lawyers Office in downtown Mobile, Alabama
Lawyer: Thanks for stopping by this morning. I know that you're busy, but I just wanted to
update you on your permit application.
Client: Great. I've been sitting on that swampland for years. It will be great to finally get
some money out of it.
Lawyer: Well, you'll be happy to know that the Corps will probably grant your permit for the
parking deck, but we just need to come to some agreement on the mitigation requirements.
Client: OK. So what are my options? The last time we talked about this, you told me that
the Corps wanted me to clean up some of the other wetlands near my property or build new
ones near my property. I think you said that they wanted 4 acres of wetlands to make up
for the 1 that I was filling. Is that still what they want?
Lawyer: They still would prefer that mitigation, but they are also willing to allow you to buy
mitigation credits from the South Alabama Mitigation Bank in Citronelle, Alabama. If you
bought credits from the mitigation bank, it would cost about $80,000 for the credits.
Client: That sounds better than the $100,000 it was going to cost me to clean up or build
swamps near my property.
Lawyer: I agree that credits from the mitigation bank will be less expensive, but I think that
there are some other factors that you might want to consider in choosing the mitigation.
When we discussed mitigation with the Corps before, they were exploring the on-site
options because a lot of the coastal wetlands around Mobile are being developed and they
felt that restoration or creation of wetlands on or near your property would help prevent
flooding in Mobile and would help protect the shrimp fisheries in the Mobile Bay. The South
Alabama Mitigation bank is located about 40 miles north of Mobile, so the wetlands that
they have created and restored up there won't really provide any protection to the fisheries
or to the folks who might be flooded by storms in the Mobile Bay. That's been happening a
lot here in Alabama. Wetlands are being destroyed by development in the cities and being
replaced by wetlands in mitigation banks in rural areas. Then, when the flooding hits, the
cities get hit hard.
Client: Would my parking deck be affected by flooding?
Lawyer: It's hard to tell, but I think that you've got it designed and located so that any
impacts should be minimal. Plus, we've got some good insurance lined up for it.
Client: Well, I don't see why I should worry about the fisheries or flooding, then. Besides,
how much of an impact can my project have, anyway? I'm only filling an acre of swamp for
my parking deck.

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Lawyer: Yes, but lots of people are only filling an acre or a couple acres by the bay.
Before you know it, half of our wetlands are gone. Which is why I think that there are
benefits to restoring or creating wetlands near your property.
Client: I hired you to represent me and not the citizens of Mobile or the Gulf Coast
Shrimpers Union. All I'm concerned about is that I get my permit at the lowest cost without
violating any laws. If I buy the mitigation credits, that will be legal, and I won't be sued by
anyone when I build my parking deck?
Lawyer: If you buy the mitigation credits, the Corps will issue you the permit and you
won't be sued by the government as long as you comply with the permit. The
government's regulations actually create a preference for mitigation banking, but they
allow on-site mitigation when the mitigation would restore an outstanding resource, like it
would in your case. The Clean Water Act allows citizens to sue for some violations of the
law, but they won’t be able to sue you as long as you have a permit from the Corps to
build your parking deck.
You may be able to buy some good will with the Mobile community, though, by restoring
or creating some wetlands near your property instead of just buying mitigation credits. If
you do a good job on the mitigation, it could really make the area around the parking deck
look nice and it might make folks want to park in your parking deck instead of some of the
other decks downtown. It could look like a little nature preserve in the middle of an urban
jungle.
Client: Location is everything with parking decks. If I'm near where folks need to park, I'll
get folks parking in my garage. If I'm not, I won't. I don't think that building some swamps
near my garage is going to increase my business. Besides, I've never built swamps. What
happens if they don't work the way they're supposed to? Won't the government come
after me then?
Lawyer: Well, you're right that if we go with the on-site mitigation option and the
restoration or creation doesn't work, the Corps can ask you to provide alternative
mitigation. You don't have to worry about that with the mitigation bank. Once you buy the
credits from an approved bank and the Corps signs off on that in your permit, you won't
be responsible for providing any other mitigation if the mitigation bank's mitigation doesn't
work.
Client: Well, it sounds like a no-brainer, then. Let's go with the credits from the mitigation
bank and get that permit, so that we can start building the garage.
Lawyer: OK. I'll contact the Corps this afternoon. I'll let you know if anything else comes
up.

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Questions
1. Is it appropriate for the lawyer to raise concerns about the fisheries or flooding, or business
concerns (such as the potential increased use of the garage if the area around the garage
looks like a nature preserve) in counseling the client? See American Bar Association, Model
Rule of Professional Conduct 2.1. (and associated comments); David Dana, Environmental
Lawyers and the Public Service Model of Lawyering, 74 Or. L. Rev. 57 (1995)
2. If the lawyer strongly disagreed with the client’s mitigation choice, would it be appropriate
for the lawyer to withdraw from representing the client? See American Bar Association, Model
Rule of Professional Conduct 1.16 (and associated comments)

Interview
Alexandra Dunn, Executive Director and General Counsel for the
Environmental Council of the States, discusses State wetland mitigation
programs, in contrast to the federal program. (YouTube Video)

Chapter Quiz
Now that you’ve finished Chapter 7, why not try a CALI Lesson on the material at:
http://cca.li/PY. It should only take about 30 minutes.

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Chapter 8
EPA’s Role in Permitting and EPA’s Veto
Authority
I.

EPA’s Role in the Section 404 Permitting Process

As a result of Congressional compromises, the Clean Water Act vests significant authority
for administering and enforcing the Section 404 permit program in the U.S. Army Corps
of Engineers and the U.S. Environmental Protection Agency. In general, the two agencies
have significantly different missions, so it is not surprising that they have adopted
conflicting positions, at times, in interpreting and administering the Section 404 program.
While the Corps administers the permitting program on a day to day basis and has the
ultimate authority to issue or deny Section 404 permits, Congress gave EPA several
important duties and responsibilities with respect to the program. First, Congress gave
EPA the authority, in conjunction with the Corps, to write the 404(b)(1) Guidelines, which
are the rules that the Corps uses to review permit applications when determining whether
to issue or deny permits and when determining the conditions to include in those permits.
See 33 U.S.C. § 1344(b)(1). The Guidelines were described in detail in Chapters 6 and 7
of this book. Second, EPA provides comments to the Corps of Engineers during the
permit review process regarding the agency’s views on the application of the Guidelines
to the permit application, whether the permit should be issued or denied, and any
conditions that should be included in the permit, if issued. EPA’s role in the permitting
process was outlined in detail in Chapter 6 of this book. Third, while the Corps may have
the ultimate authority to issue or deny Section 404 permits, EPA is authorized to veto
permits and prohibit discharges of dredged or fill material in specific areas regardless
of whether the Corps determines a discharge is appropriate. See 33 U.S.C. § 1344(c).
Not surprisingly, in light of this authority, the Corps must give significant weight to the
comments that EPA provides during the Section 404 permit review process. EPA’s veto
authority is discussed in the next section of this Chapter. Fourth, the Clean Water Act
authorizes both the Corps, see 33 U.S.C. § 1344(s), and EPA, see 33 U.S.C. § 1319, to
bring administrative actions and to refer judicial actions to the Department of Justice to
enforce the Section 404 permitting program. Those authorities, and the manner in which
the agencies have divided those responsibilities, are discussed in Chapter 10 of this book.
In addition to the powers outlined above, EPA also has authority, with the Corps, to
determine whether a site is within federal jurisdiction as “waters of the United States.”

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Chapter 4 of this book outlined the manner in which the Corps and EPA have divided that
responsibility.
In order to facilitate efficient and timely processing of Section 404 permits by the Corps,
Congress directed EPA and the other agencies routinely involved in review of those
permits to enter into agreements with the Corps to “minimize ... duplication, needless
paperwork, and delays in the issuance of [Section 404] permits.” See 33 U.S.C. § 1344(q).
The agreement that EPA entered into with the Corps also includes dispute resolution
provisions to address the inevitable disagreements between the agencies in the permit
review process. The Section 404(q) MOA and dispute resolution processes are discussed
in the next section of this Chapter.
II.

EPA’s Veto Authority

A.

Authority and Procedures

Although Section 404(c) is often referred to as EPA’s “veto” authority, that provision
grants EPA broader authority to limit discharges of dredged of fill material than simply the
authority to “veto” a Section 404 permit. Section 404(c) provides:
The Administrator is authorized to prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal site, and he is
authorized to deny or restrict the use of any defined area for specification (including
the withdrawal of specification) as a disposal site, whenever he determines, after
notice and opportunity for public hearings, that the discharge of such materials into
such area will have an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and breeding areas), wildlife,
or recreational areas.
33 U.S.C. § 1344(c). Thus, while EPA usually uses its Section 404(c) authority to veto
permits issued by the Corps, the agency has the authority to prohibit, deny, restrict, or
withdraw the specification of an area as a disposal site in a variety of contexts. EPA
retains that authority even if a State takes over administration of the Section 404 permit
program. See 40 C.F.R. § 231.1.
1.

Section 404(q) and Elevation of
Permit Disputes

Although EPA has only exercised its
Section 404(c) authority 13 times in the
history of the Section 404 program, see
U.S. Environmental Protection Agency,

Resources
EPA/Corps 404(q) MOA
EPA 404(q) fact sheet
Chronology of 404(q) elevations
EPA web page of 404(q) resources

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Chronology of 404(c) Actions, it usually exercises it to “veto” a permit that the Corps is
about to issue or has issued. In most cases, EPA has raised concerns about the permitted
activity during the comment period, before the Corps has decided to issue the permit.
EPA permit vetoes are rare. In the vast majority of cases, EPA and the Corps work out
any disagreements that they have regarding the issuance or denial of a permit, and the
conditions to be included in a permit, at the field level. However, when disputes arise
between the agencies at the field level, the disputes can be “elevated” to higher levels
within the agencies for resolution pursuant to a Memorandum of Agreement that EPA and
the Corps signed in 1992 to comply with Section 404(q) of the Clean Water Act. See U.S.
Environmental Protection Agency & U.S. Army Corps of Engineers, Memorandum of
Agreement: Clean Water Act Section 404(q) [hereinafter “1992 MOA”].
Under the MOA, if EPA is concerned that a project may result in “substantial and
unacceptable impacts to “aquatic resources of national importance” (ARNI), regional
representatives of the agency must notify the Corps’ District Engineer about those
concerns during the comment period for the permit for the project. Id. ¶ IV.3.(a). In
determining whether a site is an ARNI, EPA examines the economic importance of the
resource, its rarity or uniqueness, and/or the importance of the resource to the protection,
maintenance or enhancement of the quality of the nation’s waters. See U.S.
Environmental Protection Agency, Section 404(q) Dispute Resolution Process. If EPA
and the Corps cannot work out their differences, the EPA Regional Administrator can
send a letter to the Corps District Engineer (within 25 days after the comment period
ends), indicating that the project will have substantial and unacceptable impacts to an
ARNI. See 1992 MOA ¶ IV.3.(b).
If the Corps plans to issue the permit for the project regardless of EPA’s concerns, the
District Engineer must notify the EPA Regional Administrator, and the Regional
Administrator can ask EPA headquarters (EPA Assistant Administrator) to request review
(elevation) of the dispute by the Corps’ headquarters (Assistant Secretary of the Army
(Civil Works)). Id. ¶ IV.3. Although the Corps will not issue the permit during the elevation
review process, the Assistant Secretary of the Army (Civil Works) can ultimately decide
that the permit should be issued after reviewing the dispute. Id. The Assistant Secretary
might also decide that the permit should not be issued, or that it should be issued with
specific conditions, and might provide case specific guidance for the agency. Id. When
the Assistant Secretary makes a decision, the Assistant Secretary should immediately
notify EPA’s Assistant Administrator. Id. If the Corps determines that it will issue the
section 404 permit regardless of EPA’s concerns, EPA must then decide whether to begin
the Section 404(c) veto process.
Just as it is unusual for EPA to veto a Corps permit, it is unusual for EPA and the Corps
to be unable to resolve their differences regarding a permit application at the regional

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level. While the Corps processes approximately 60,000 permits per year, EPA has only
sought elevation of Corps permits 11 times in the 20 years since the agencies entered
into the Section 404(q) MOA, and 8 times before they signed the MOA. See U.S.
Environmental Protection Agency, Section 404(q) Dispute Resolution Process.
Research Problems
EPA posts the permit elevation requests from regional offices to headquarters and
the subsequent correspondence between EPA headquarters, the region and the
Army on its website. Based on the information posted there, please answer the
following questions:
1. How many times, after the EPA and Corps of Engineers entered into the 1992
MOA to implement Section 404(q), has EPA headquarters declined to pursue the
request of a Regional Office of EPA to elevate a permit dispute? Please identify the
permits at issue in those cases.
2. Did the Corps ultimately issue or deny a permit for the Breckenridge Ski Area in
Colorado when EPA’s Assistant Administrator for Water requested review of the
permit?
3. According to EPA, how many acres of wetlands would be adversely impacted by
the project authorized by the permit for the Florida Power Corporation near Tampa,
Florida?

2.

Section 404(c) Procedures

Section 404(c) requires EPA, before making a decision to prohibit, deny, restrict, or
withdraw specification of an area as a disposal site, to consult with the Corps. See 33
U.S.C. § 1344(c). The statute also requires EPA to “set forth in writing and make public
[the] ... findings and reasons” for making those decisions. Id. EPA has adopted
regulations to implement those requirements. See 40 C.F.R. Part 231. The regulations
outline a three step process that applies
regardless of whether EPA is vetoing a
Resources
permit or prohibiting, denying, restricting,
EPA Section 404(c) regulations
or withdrawing specification of a disposal
EPA Section 404(c) fact sheet
area in other contexts. See 40 C.F.R.
Chronology of EPA Section 404(c) actions
§ 231.1. Normally, though, EPA uses its
404 (c) authority when the agency and the

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Corps have not been able to work out disagreements regarding a Section 404 permit
application and the Corps has issued a notice that it intends to issue the permit. The
elevation process and the 404(c) process are separate processes, and there is no
requirement that EPA attempt to resolve disagreements with the Corps through formal
elevation before commencing the 404(c) process.

Section 404(c) Process
Notice of Proposed Determination
↓
Recommended Determination
↓
Final Determination

The Section 404(c) process begins at the regional level of EPA. If a Regional
Administrator of EPA finds that a discharge of dredged or fill material will have
“unacceptable adverse effects” on municipal water supplies, shellfish beds and fishery
areas, wildlife, or recreational areas, the Administrator notifies the Corps that the
Administrator intends to issue a public notice of a proposed determination to withdraw,
prohibit, deny or restrict the specification of the area as a disposal site. See 40 C.F.R.
§ 231.3(a)(1). If EPA is beginning the process because someone is seeking a permit from
the Corps to discharge in the area, the Regional Administrator notifies the permit applicant
as well. Id. Unless it is demonstrated to the Regional Administrator that the discharge
won’t have unacceptable adverse effects, within 15 days after notifying the Corps and
any permit applicant that it intends to issue a notice, the Administrator publishes, in the
Federal Register, a Notice of Proposed Determination to withdraw, prohibit, deny, or
restrict the area as a disposal site. Id. § 231.3(a)(2). If EPA begins the process while the
Corps is reviewing a permit application for the site, the Corps will not issue the permit
until EPA finishes the 404(c) process. Id. See also 33 C.F.R. § 323.6(b).
After EPA publishes the notice of proposed determination, the agency provides an
opportunity for public comment on the notice and may hold a public hearing. See 40
C.F.R. § 231.4. At the end of the comment period, the Regional Administrator either
withdraws the proposed determination or forwards a Recommended Determination
(and administrative record for the determination) to EPA headquarters (the EPA Assistant
Administrator for Water). See 40 C.F.R. § 231.5. Within 30 days after the EPA Assistant
Administrator receives the recommended determination, the Assistant Administrator
contacts the Corps, the property owner, and the permit applicant (if there is a permit
application), so that they can take “corrective action” to prevent unacceptable adverse

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effects. See 40 C.F.R. § 231.6. Within 60 days after the Assistant Administrator receives
the recommended determination from the Regional Administrator, the Assistant
Administrator must issue, and publish in the Federal Register, a Final Determination
affirming, modifying, or rescinding the recommended determination. Id.
Questions and Comments
1.

Judicial Review: Which of the following actions are reviewable final agency
actions?: (1) a Regional Administrator’s Proposed Determination; (2) a Regional
Administrator’s Withdrawal of a Proposed Determination; (3) a Regional
Administrator’s Recommended Determination; (4) a Final Determination of the
Assistant Administrator. See 40 C.F.R. part 231. What if EPA never initiates the
404(c) process at all? Is the agency’s failure to veto a permit or failure to initiate
the 404(c) process with respect to a disposal site reviewable? Compare Preserve
Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Engineers, 87
F.3d 1242 (11th Cr. 1996) (EPA’s decision whether to exercise its 404 (c) authority
is discretionary and can’t be challenged in a citizen suit) with National Wildlife
Federation v. Hanson, 859 F.2d 313 (4th Cir. 1988) (EPA has a non-discretionary
duty to exercise its 404(c) authority when the Corps has made an erroneous
wetland determination) and Alliance to Save Mattaponi v. United States Army
Corps of Engineers, 515 F. Supp. 2d 1 (D.D.C. 2007) (EPA’s failure to exercise its
404(c) authority cannot be challenged in a citizen suit, but can be challenged under
the Administrative Procedures Act).

2.

Nature of hearings: Section 404(c) requires EPA to make determinations “after
notice and opportunity for public hearings.” Does that language require the agency
to hold formal trial-type hearings before an administrative law judge? How has the
agency interpreted the language? See 40 C.F.R. § 231.4. How does that impact
the standard of review that applies to the factual determinations made by EPA in
a final determination under section 404 (c)? See James City County v.
Environmental Protection Agency, 12 F.3d 1330 (4th Cir. 1993) (relying on the
arbitrary and capricious standard after previously applying the substantial
evidence standard).

3.

Frequency: EPA exercises its 404(c) authority sparingly. It has only issued 13
vetoes since 1972, and did not issue any veto decisions over an 18 year period
between 1990 and 2008. See U.S. Environmental Protection Agency, Chronology
of 404(c) Actions. While EPA vetoed 11 projects between 1981 and 1990, the
decline in permit vetoes was likely influenced by two factors. First, several bills
were introduced in Congress in the early 1990s that would have eliminated EPA’s
Section 404(c) authority. See, e.g., Wetlands Regulatory Reform Act of 1995, 104th
Cong., 1st Sess. (1995); Wetlands Protection and Regulatory Reform Act of 1991,

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H.R. 404, 102d Cong., 1st Sess (1991). Second, and perhaps more importantly, in
1992, EPA entered into the MOA with the Corps establishing the elevation
procedures, which provide a process to resolve inter-agency disputes which might
otherwise lead to permit vetoes. See 1992 MOA.
Research Problems
EPA posts the proposed and final determinations in the 404(c) process on its
website. Based on the information posted there, please answer the following
questions:
1. When EPA vetoed the Lake Alma Impoundment permit in Georgia, was it
concerned about the impacts of the project on (a) municipal water supplies; (b)
recreational areas; or (c) wildlife?
2. When EPA vetoed the Two Forks Water Supply Impoundments permit in
Colorado, was it concerned about the impacts of the project on (a) fisheries; (b)
municipal water supplies; or (c) wildlife?
3. In how many 404(c) proceedings has EPA modified a final determination after the
agency issued a determination? Please identify the proceedings.

B.

Timing of the “Veto”

As noted above, while EPA normally uses its authority under Section 404(c) to veto a
permit that the Corps plans to issue or has already issued, the statutory language does
not limit EPA’s exercise of authority to those situations. The statute does not refer to a
“veto” at all. Instead, it authorizes EPA to prohibit, deny, restrict or withdraw the
specification of a defined area as a disposal site. See 33 U.S.C. § 1344(c). EPA has
interpreted that language, through regulation, to mean that the agency can exercise its
authority before anyone applies for a permit, while the Corps is processing a permit
application, and after the Corps issues a permit. See U.S. Environmental Protection
Agency, Clean Water Act Section 404 (c) “Veto Authority”. Below are EPA’s regulatory
definitions that support that broad exercise of authority.

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Statutory Term

Regulatory Definition

Prohibit Specification

Prevent the designation of an area as a present or
future disposal site - 40 C.F.R. § 231.2(b).

Deny or Restrict the Use
of Any Defined Area for
Specification

Deny or restrict the use of any area for the present or
future discharge of any dredged or fill material - 40
C.F.R. § 231.2(c).

Withdraw Specification

Remove from designation an area already specified as
a disposal site by the U.S. Army Corps of Engineers or
by a state which has assumed the Section 404
program, or any portion of such area - 40 C.F.R.
§ 231.2(a).

While the agency’s regulations authorize EPA to exercise its Section 404(c) powers in a
broad range of situations, in most cases, EPA exercises its authority when the Corps is
reviewing a Section 404 permit application and is likely to issue the permit, but has not
yet issued the permit. 10 of the 13 EPA “vetoes” arose in that context. See Brief for the
Respondent in Opposition to Petition for Writ of Certiorari at 14, Mingo Logan Coal
Company v. Environmental Protection Agency, No. 13-599 (U.S. Feb. 14, 2014). In the
other 3 cases, EPA acted to limit the use of an area as a disposal site after the Corps
had issued a permit authorizing the discharge. Id. at 5. In 2 of those cases, EPA acted
shortly after the permit was issued or when a permit modification was being sought. Id. In
one case, however, EPA exercised its Section 404(c) authority four years after the Corps
issued a Section 404 permit for a mountaintop removal mining project. That was EPA’s
most recent exercise of its authority and was challenged in the following case.
Mingo Logan Coal Company v.
U.S. Environmental Protection
Agency
714 F.3d 608 (D.C. Cir. 2013)
cert. denied 134 S. Ct. 1540 (2014)
KAREN LECRAFT HENDERSON,
Circuit Judge:

Resources for the Case
Unedited opinion (From court’s website)
Google Map of all the cases in the coursebook
D.C. Circuit Oral Argument Audio
EPA letter initiating 404(c) process
Arch Coal Company website

The Mingo Logan Coal Company
(Mingo Logan) applied to the United
States Army Corps of Engineers (Corps) for a permit under section 404 of the Clean
Water Act (CWA), 33 U.S.C. § 1344, to discharge dredged or fill material from a mountain-

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top coal mine in West Virginia into three streams and their tributaries. The Corps—acting
on behalf of the Secretary of the Army (Secretary) and without objection from the
Administrator of the United States Environmental Protection Agency (Administrator,
EPA), who has “veto” authority over discharge site selection under CWA subsection
404(c), * * * issued the permit to Mingo Logan, approving the requested disposal sites
for the discharged material. Four years later, EPA invoked its subsection 404(c) authority
to “withdraw” the specifications of two of the streams as disposal sites, thereby prohibiting
Mingo Logan from discharging into them. Mingo Logan filed this action challenging EPA’s
withdrawal of the specified sites on the grounds that (1) EPA lacks statutory authority to
withdraw site specification after a permit has issued and (2) EPA’s decision to do so was
arbitrary and capricious in violation of the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701 et seq. The district court granted summary judgment to Mingo Logan on the first
ground without reaching the second. We reverse the district court, concluding that EPA
has post-permit withdrawal authority, and remand for further proceedings.
I.
The CWA provides that “the discharge of any pollutant by any person shall be unlawful”
except as in compliance with specifically enumerated CWA provisions, including section
404. * * * Subsection 404(a) authorizes the Secretary to issue permits allowing discharge
of dredged or fill material “at specified disposal sites,” which are to be “specified for each
such permit by the Secretary . . . through the application of guidelines developed by the
Administrator, in conjunction with the Secretary.” * * * The Secretary’s authority to specify
a disposal site is expressly made “[s]ubject to subsection (c) of [section 404].”
* * * Subsection 404(c) authorizes the Administrator, after consultation with the Corps, to
veto the Corps’s disposal site specification—that is, the Administrator “is authorized to
prohibit the specification (including the withdrawal of specification) of any defined area as
a disposal site, and . . . to deny or restrict the use of any defined area for specification
(including the withdrawal of specification) as a disposal site”—“whenever he determines”
the discharge will have an “unacceptable adverse effect” on identified environmental
resources. * * *
In June 1999, Hobet Mining, Inc., Mingo Logan’s predecessor, applied for a section 404
permit to discharge material from the Spruce No. 1 Mine into four West Virginia streams
and their tributaries. In 2002, after the Corps prepared a draft Environmental Impact
Statement, EPA expressed its concern that “even with the best practices, mountaintop
mining yields significant and unavoidable environmental impacts that had not been
adequately described in the document.” * * * In the end, however, EPA declined to pursue
a subsection 404(c) objection. * * * On January 22, 2007, the Corps issued Mingo Logan
a section 404 permit, effective through December 31, 2031, which authorized Mingo
Logan to dispose of material into three streams—Pigeonroost Branch, Oldhouse Branch
and Seng Camp Creek—and certain tributaries thereto. * * * The permit expressly

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advised that the Corps “may reevaluate its decision on the permit at any time the
circumstances warrant” and that “[s]uch a reevaluation may result in a determination that
it is appropriate to use the suspension, modification, and revocation procedures contained
in 33 C.F.R. 325.7.” * * * The permit made no mention of any future EPA action.
On September 3, 2009, EPA wrote the Corps requesting it “use its discretionary authority
provided by 33 C.F.R. 325.7 to suspend, revoke or modify the permit issued authorizing
Mingo Logan Coal Company to discharge dredged and/or fill material into waters of the
United States in conjunction with the construction, operation, and reclamation of the
Spruce Fork No. 1 Surface Mine,” based on “new information and circumstances . . .
which justif[ied] reconsideration of the permit.” * * * EPA noted in particular its “concern[]
about the project’s potential to degrade downstream water quality.” * * * The Corps
responded that there were “no factors that currently compell[ed it] to consider permit
suspension, modification or revocation.” * * * EPA wrote back: “We intend to issue a
public notice of a proposed determination to restrict or prohibit the discharge of dredged
and/or fill material at the Spruce No. 1 Mine project site consistent with our authority under
Section 404(c) of the Clean Water Act and our regulations at 40 C.F.R. Part 231.” * * *
EPA’s Regional Director published the promised notice of proposed determination on
April 2, 2010, requesting public comments “[p]ursuant to Section 404(c) . . . on its proposal
to withdraw or restrict use of Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch,
and certain tributaries to those waters in Logan County, West Virginia to receive dredged
and/or fill material in connection with construction of the Spruce No. 1 Surface Mine.”
* * * The Regional Director followed up with a Recommended Determination on
September 24, 2010, limited to withdrawal of the specification of Pigeonroost Branch and
Oldhouse Branch and their tributaries. On January 13, 2011, EPA published its Final
Determination, which, adopting the Regional Director’s recommendation, formally
“withdraws the specification of Pigeonroost Branch, Oldhouse Branch, and their
tributaries, as described in [the Spruce Mine Permit] . . . as a disposal site for the
discharge of dredged or fill material for the purpose of construction, operation, and
reclamation of the Spruce No. 1 Surface Mine” and “prohibits the specification of the
defined area . . . for use as a disposal site associated with future surface coal mining that
would be expected to result in a nature and scale of adverse chemical, physical, and
biological effects similar to the Spruce No. 1 mine.” * * *
Mingo Logan filed this action in district court immediately following the Proposed
Determination, challenging EPA’s authority to “revoke” the three-year-old permit,
* * * and amended its complaint in February 2011 to challenge the Final Determination,
asserting it is both ultra vires and arbitrary and capricious. * * * On cross-motions for
summary judgment, the district court granted judgment to Mingo Logan on March 23,
2012. * * * The court concluded EPA “exceeded its authority under section 404(c) of the
Clean Water Act when it attempted to invalidate an existing permit by withdrawing the

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specification of certain areas as disposal sites after a permit had been issued by the Corps
under section 404(a).” * * * The United States filed a timely notice of appeal on behalf of
EPA. The Corps joined EPA on brief. * * *
II.
In granting summary judgment, the district court agreed with Mingo Logan’s interpretation
of subsection 404 to preclude EPA from withdrawing a site specification once the Corps
has issued a permit. “We review a grant of summary judgment de novo applying the same
standards as those that govern the district court’s determination.” Troy Corp. v. Browner,
120 F.3d 277, 283 (D.C. Cir. 1997). “Moreover, insofar as the agency’s determination
amounts to or involves its interpretation of . . . a statute entrusted to its administration, we
review that interpretation under the deferential standard of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).” Id. Under Chevron:
We first ask “whether Congress has directly spoken to the precise question at
issue,” in which case we “must give effect to the unambiguously expressed intent
of Congress.” If the “statute is silent or ambiguous with respect to the specific
issue,” however, we move to the second step and defer to the agency’s
interpretation as long as it is “based on a permissible construction of the statute.”
Natural Res. Def. Council v. EPA, 706 F.3d 428, 431 (D.C. Cir. 2013) (quoting Chevron,
467 U.S. at 842–43). We construe subsection 404(c) under Chevron step 1 because we
believe the language unambiguously expresses the intent of the Congress.
As noted earlier, * * * section 404 vests the Corps, rather than EPA, with the authority to
issue permits to discharge fill and dredged material into navigable waters and to specify
the disposal sites therefor. * * * Nonetheless, the Congress granted EPA a broad
environmental “backstop” authority over the Secretary’s discharge site selection in
subsection 404(c), which provides in full:
(c) Denial or restriction of use of defined areas as disposal sites
The Administrator is authorized to prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal site, and he is
authorized to deny or restrict the use of any defined area for specification (including
the withdrawal of specification) as a disposal site, whenever he determines, after
notice and opportunity for public hearings, that the discharge of such materials into
such area will have an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and breeding areas), wildlife,
or recreational areas. Before making such determination, the Administrator shall
consult with the Secretary. The Administrator shall set forth in writing and make

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public his findings and his reasons for making any determination under this
subsection.
33 U.S.C. § 1344(c); see Legislative History at 177 (“[T]he Conferees agreed that the
Administrator . . . should have the veto over the selection of the site for dredged spoil
disposal and over any specific spoil to be disposed of in any selected site.”).2 Section 404
imposes no temporal limit on the Administrator’s authority to withdraw the Corps’s
specification but instead expressly empowers him to prohibit, restrict or withdraw the
specification “whenever” he makes a determination that the statutory “unacceptable
adverse effect” will result. 33 U.S.C. § 1344(c) (emphasis added). Using the expansive
conjunction “whenever,” the Congress made plain its intent to grant the Administrator
authority to prohibit/deny/restrict/withdraw a specification at any time. See 20 Oxford
English Dictionary 210 (2d ed.1989) (defining “whenever,” used in “a qualifying
(conditional) clause,” as: “At whatever time, no matter when.”). Thus, the unambiguous
language of subsection 404(c) manifests the Congress’s intent to confer on EPA a broad
veto power extending beyond the permit issuance.3
2

Thus, subsection 404(c) affords EPA two distinct (if overlapping) powers to veto the
Corps’s specification: EPA may (1) “prohibit the specification (including the withdrawal of
specification) of any defined area as a disposal site” or (2) “deny or restrict the use of any
defined area for specification (including the withdrawal of specification).” In withdrawing
the specifications here, EPA did not clearly distinguish between the two powers. See Final
Determination, 76 Fed. Reg. at 3127 (“EPA Region III published in the Federal Register
a Proposed Determination to prohibit, restrict, or deny the specification or the use for
specification (including withdrawal of specification) of certain waters at the project site as
disposal sites for the discharge of dredged or fill material for the construction of the Spruce
No. 1 Surface Mine.”). It appears, however, that EPA exercised the first authority—“to
prohibit”/“withdraw[]”—given the post-permit timing. See id. at 3128 (“EPA’s Final
Determination withdraws the specification of Pigeonroost Branch, Oldhouse Branch, and
their tributaries, as described in DA Permit No. 199800436-3 (Section 10: Coal River), as
a disposal site for the discharge of dredged or fill material for the purpose of construction,
operation, and reclamation of the Spruce No. 1 Surface Mine. This Final Determination
also prohibits the specification of the defined area constituting Pigeonroost Branch,
Oldhouse Branch, and their tributaries for use as a disposal site associated with future
surface coal mining that would be expected to result in a nature and scale of adverse
chemical, physical, and biological effects similar to the Spruce No. 1 mine.”).
3

Based on the plain meaning of the statutory language, EPA has consistently maintained
this interpretation for over thirty years. See Section 404(c) Procedures, 44 Fed. Reg.
58,076, 58,077 (Oct. 9, 1979) (“The statute on its face clearly allows EPA to act after the
Corps has issued a permit; it refers twice to the ‘withdrawal of specification,’ which clearly
refers to action by EPA after the Corps has specified a site (e.g. issued a permit or
authorized its own work).”); Final Determination of the Administrator Concerning the North
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This construction is further buttressed by subsection 404(c)’s authorization of a
“withdrawal” which, as EPA notes, is “a term of retrospective application.” * * * EPA can
withdraw a specification only after it has been made. See 20 Oxford English Dictionary
449 (2d ed.1989) (defining “withdraw” as “[t]o take back or away (something that has been
given, granted, allowed, possessed, enjoyed, or experienced)”). Moreover, because the
Corps often specifies final disposal sites in the permit itself—at least it did here, * * * —
EPA’s power to withdraw can only be exercised post-permit. Mingo Logan’s reading of
the statute would eliminate EPA’s express statutory right to withdraw a specification and
thereby render subsection 404(c)’s parenthetical “withdrawal” language superfluous—a
result to be avoided. See Corley v. United States, 556 U.S. 303, 314 (2009) (applying
“one of the most basic interpretative canons, that a statute should be construed so that
effect is given to all its provisions, so that no part will be inoperative or superfluous, void
or insignificant”) (brackets and quotation marks omitted).
Notwithstanding the unambiguous statutory language, Mingo Logan presses its own view
of the language, the statutory structure and section 404’s legislative history to maintain
that the Congress intended to preclude post-permit withdrawal. We find none of its
arguments persuasive.
First, Mingo Logan argues that the statutory language itself contemplates that
specification occurs before (rather than when) the permit issues and therefore can (and
must) be withdrawn pre-permit. We find no such intent in the statutory directive Mingo
Logan quotes—that “each such disposal site shall be specified for each such permit by
the Secretary . . . through the application of guidelines developed by the Administrator, in
conjunction with the Secretary.” 33 U.S.C. § 1344(b). This language is at least as
consistent with specification by the Corps at the time the permit issues as it is with prepermit specification. Moreover, as noted earlier, * * * the Corps expressly “specified” the
final sites in the Spruce Mine Permit itself. Nor does the permitting process—including
the “extensive coordination process during which EPA can review the Corps’s statement
of findings/record of decision,” * * * require that the specification be made before the
permit issues. During the permitting process, the disposal sites are proposed, reviewed—
perhaps even “specified,” as Mingo Logan contends—but the final specifications are
included in the permit itself.
Second, Mingo Logan asserts EPA’s interpretation conflicts with section 404 “as a whole.”
* * * Mingo Logan claims, for example, that “EPA’s reading obliterates the choice
Congress made to give the permitting authority with all of its attributes to the Corps, not
Miami Landfill Site Pursuant to Section 404(c) of the Clean Water Act at 1-2 (Jan. 26,
1981) (JA 239-40) (exercising 404(c) authority “to restrict the use of [of the North Miami
Landfill] for specification (including the withdrawal of specification) as a disposal site”
almost five years after Corps issued permit therefor). The Corps has made clear by joining
EPA in this litigation that it agrees with EPA’s interpretation. See supra * * * .
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EPA.” * * * While it is true that subsections 404(a)-(b) unambiguously authorize the
Secretary to issue a discharge permit—and to specify the disposal site(s) therefor—
section 404(b) makes equally clear * * * that the Administrator has, in effect, the final say
on the specified disposal sites “whenever” he makes the statutorily required
“unacceptable adverse effect” determination. Thus, insofar as site specification may be
considered, as Mingo Logan asserts, an “attribute[]” of the permitting authority, the statute
expressly vests final authority over this particular attribute in the Administrator.
Mingo Logan also contends that EPA’s interpretation “tramples on provisions like sections
404(p) and 404(q) that are intended to give permits certainty and finality.” * * * Subsection
404(p) provides: “Compliance with a permit issued pursuant to [section 404], including
any activity carried out pursuant to a general permit issued under this section, shall be
deemed compliance, for purposes of [enforcement actions brought under] sections 1319
and 1365 of [title 33] . . . .”4 According to Mingo Logan, “absent . . . permit violations or
public interest considerations, the permittee can rely on the permit shield of section
404(p).” * * * But again, section 404(c)’s language is plain with regard to its enumerated
“unacceptable adverse effects”: the Administrator retains authority to withdraw a specified
disposal site “whenever” he determines such effects will result from discharges at the
sites. And when he withdraws a disposal site specification, as he did here, the disposal
site’s “terms and conditions specified” in the permit * * * are in effect amended so that
discharges at the previously specified disposal sites are no longer in “[c]ompliance with”
the permit—although the permit itself remains otherwise in effect to the extent it is usable.5
Moreover, as EPA notes, subsection 404(c) was enacted in 1972 and its plain meaning
did not change when 404(p) was enacted five years later. * * * As Mingo Logan
acknowledges, if “the text of section 404(c) clearly and unambiguously gave EPA the
power to act post-permit”—a reading it rejects—then section 404(p) “cannot be read to
4

Sections 1319 and 1365 of title 33 authorize an action by, respectively, (1) EPA against
a violator of, inter alia, the terms of a section 404 permit; and (2) a citizen against a violator
of a CWA effluent limitation or against EPA for failure to perform a non-discretionary “act
or duty” under the CWA. 33 U.S.C. §§ 1319, 1365.
5

In this case for example, EPA left intact the specification as disposal site of “the Right
Fork of Seng Camp Creek and its tributaries . . . in part because some of those discharges
have already occurred and because the stream resources in Right Fork of Seng Camp
Creek were subject to a higher level of historic and ongoing human disturbance than
those found in Pigeonroost Branch or Oldhouse Branch.” Final Determination, 76 Fed.
Reg. at 3127 n.1.
In addition, EPA has made clear that a permittee may not be penalized for discharges
that occurred in compliance with the permit before the effective date of the withdrawal of
the specification.
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implicitly overturn section 404(c).” * * * As we have repeatedly stated throughout this
opinion, the text of section 404(c) does indeed clearly and unambiguously give EPA the
power to act post-permit. Thus, subsection 404(p) does not implicitly limit section 404(c)’s
scope. Nor does EPA’s express statutory authority to act post-permit interfere with
subsection 404(q)’s directive that the Secretary enter into agreements with other agency
heads “to minimize, to the maximum extent practicable, duplication, needless paperwork,
and delays in the issuance of permits under this section” and “to assure that, to the
maximum extent practicable, a decision with respect to an application for a permit under
subsection (a) of this section will be made not later than the ninetieth day after the date
the notice for such application is published under subsection (a) of this section.” 33 U.S.C.
§ 1344(q) (emphases added). The enumerated obligations apply only pre-permit and are
therefore unaffected by EPA’s post-permit actions.
Finally, Mingo Logan argues that the legislative history “confirms that Congress intended
EPA to act under section 404(c), if at all, prior to permit issuance.” * * * In particular, it
relies on the statement of then-Senator Edmund Muskie that
prior to the issuance of any permit to dispose of spoil, the Administrator must
determine that the material to be disposed of will not adversely affect municipal
water supplies, shellfish beds, and fishery areas (including spawning and breeding
areas), wildlife or recreational areas in the specified site. Should the Administrator
so determine, no permit may issue.
118 Cong. Rec. at 33,699, reprinted in Legislative History at 177 (emphasis added).
“Assuming legislative history could override the plain, unambiguous directive” of section
404(c) and “putting to one side the fact that this was the statement of a single member of
Congress,” the quoted language is “not necessarily inconsistent with” EPA’s
interpretation. See Natural Res. Def. Council v. EPA, 706 F.3d 428, 437 (D.C. Cir. 2013)
(quotation marks and brackets omitted); see also Mims v. Arrow Fin. Servs., LLC, 132
S. Ct. 740, 752 (2012) (“[T]he views of a single legislator, even a bill’s sponsor, are not
controlling.”). That EPA should review the preliminary specifications pre-permit to
determine whether discharges will have the required “unacceptable adverse effect”—as
EPA in fact did here—does not mean it is foreclosed from doing so post-permit as well—
as it also did here.6 “Thus, ‘this case does not present the very rare situation where the
legislative history of a statute is more probative of congressional intent than the plain
6

Similarly, post-permit withdrawal is not precluded by 33 C.F.R. § 323.6(b) (“The Corps
will not issue a permit where the regional administrator of EPA has notified the district
engineer and applicant in writing pursuant to 40 C.F.R. 231.3(a)(1) that he intends to
issue a public notice of a proposed determination to prohibit or withdraw the specification,
or to deny, restrict or withdraw the use for specification, of any defined area as a disposal
site in accordance with section 404(c) of the Clean Water Act.”).
328

text.’ ” Va. Dep’t of Med. Assistance Servs. v. U.S. Dep’t of Health & Human Servs., 678
F.3d 918, 923 (D.C. Cir. 2012) (quoting Consumer Elecs. Ass’n v. FCC, 347 F.3d 291,
298 (D.C. Cir. 2003)) (brackets omitted).
For the foregoing reasons, we reverse the district court insofar as it held that EPA lacks
statutory authority under CWA section 404(c) to withdraw a disposal site specification
post-permit. Because the district court did not address the merits of Mingo Logan’s APA
challenge to the Final Determination and resolution of the issue is not clear on the present
record, we follow our usual practice and remand the issue to the district court to address
in the first instance. See Friends of Blackwater v. Salazar, 691 F.3d 428, 434 n.* (D.C.
Cir. 2012) (citing Piersall v. Winter, 435 F.3d 319, 325 (D.C. Cir. 2006)).
Questions and comments
1.

Deference: The Corps and EPA both play a role in administering the Section 404
permit program. If EPA and the Corps disagree about the interpretation of Section
404(c), which agency’s interpretation is entitled to deference? Did the court have
to resolve that issue in this case?

2.

Consistent interpretation: Why is it significant that EPA interpreted its authority
under Section 404(c) consistently over thirty years? Is there evidence that
Congress was aware of that interpretation? Is that relevant?

3.

On a cert petition to the Supreme Court, Mingo Logan argued that the appellate
court’s decision would chill investment in development because it calls into
question the finality of Corps’ permits. However, is there another way that the
government could have prevented the Mingo Logan Coal Company from
continuing to discharge fill material besides EPA’s exercise of its 404(c) authority?
How “final” are the Corps’ permits?

4.

A familiar statutory interpretation canon provides that when two statutes conflict,
the statute enacted last prevails. Another canon provides that repeals by
implication are disfavored. Yet another canon provides that when two statutes
conflict, the specific controls over the general. Were any of those canons relevant
to Mingo Logan’s argument that Section 404(p) demonstrated Congress’ intent that
EPA should not have the authority to veto a permit after the Corps has issued it?

5.

Projects vetoed: The project in the Mingo Logan case would have been the
largest surface coal mine in West Virginia. However, many of the cases where EPA
has exercised its 404(c) authority involve infrastructure development projects,
such as dams, water supply impoundments, flood control projects and landfills or
recycling plants. See U.S. Environmental Protection Agency, Clean Water Act

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Section 404 (c) “Veto Authority”. Consequently, when Mingo Logan file a petition
for writ of certiorari to the Supreme Court seeking review of the D.C. Circuit’s
decision, amicus briefs were filed by 27 States and the U.S. Conference of Mayors,
as well as the National Mining Association, National Association of Home Builders,
American Petroleum Institute, and the Chamber of Commerce. See SCOTUSblog,
Mingo Logan Coal Company v. Environmental Protection Agency. The Court
denied the petition on March 24, 2014.
6.

Remand: On remand, the District Court of the District of Columbia held that EPA’s
decision to exercise its 404(c) authority “was reasonable, supported by the record,
and based on considerations within the agency’s purview.” See Mingo Logan Coal
Company, Inc. v. U.S. Environmental Protection Agency, Case No. 10-0541
(D.D.C. 2014).

7.

Pre-emptive vetoes: Although EPA’s regulations authorize the agency to prohibit
the specification of an area as a disposal site even before anyone has applied to
the Corps for a permit, EPA rarely exercises that authority. In 1987, when the
agency was vetoing Corps permits that would have authorized the developer to
discharge into two sites, the agency prohibited discharges into a third site nearby,
even though the developer had not yet sought a permit to discharge there. See 52
Fed. Reg. 38519, 38520 (Oct. 16, 1987). While that project involved a relatively
small parcel of land (60 acres of wetlands), in 2014, EPA began Section 404(c)
proceedings to address impacts from an open pit mining project in Alaska that
would cover almost 70 square kilometers and could destroy between 1200 and
4900 acres of wetlands. See Environmental Protection Agency, EPA 910-R-14001ES, An Assessment of the Potential Mining Impacts on Salmon Ecosystems of
Bristol Bay, Alaska 11,13 (Jan. 2014). Several tribes asked EPA to begin the
Section 404(c) proceedings before developers applied to the Corps for a permit for
the Pebble Mine project. See Environmental Protection Agency, Why We Studied
the Bristol Bay Watershed. When the agency received those requests, it decided
to conduct a scientific assessment of the Bristol Bay watershed to understand how
large scale mining could impact water quality and the ecosystem, which is home
to one of the largest sockeye salmon populations in the world. Id. After completing
the assessment, EPA decided to begin the 404(c) process even though a
developer had not yet sought a Section 404 permit from the Corps. See U.S.
Environmental Protection Agency, Proposed Determination Of The U.S.
Environmental Protection Agency Region 10 Pursuant To Section 404(C) Of The
Clean Water Act Pebble Deposit Area, Southwest Alaska, July 2014. The
developer immediately sued EPA, but the Ninth Circuit rejected the challenge,
concluding that EPA’s initiation of the 404(c) process was not a “final agency
action.” See Pebble Limited Partnership v. EPA, 9th Cir., No. 3:14-cv-00097-HRH,
ruling 5/28/15 (unpublished opinion). In July, 2019, however, EPA reversed course

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and withdrew its proposed Section 404(c) veto of the project after the developer
applied to the Corps for a 404 permit. See 84 Fed. Reg. 45749 (Aug. 30, 2019).
Several groups sued to challenge the agency’s decision, but the federal district
court for Alaska dismissed the lawsuit, finding that EPA’s decision was not
reviewable because it was “committed to agency discretion” under the APA. See
Bristol Bay Economic Development Corporation et al v. Hladick et al, 454 F. Supp.
3d 892 (D.Alaska 2020). The Ninth Circuit disagreed, though, and held that EPA’s
regulations (40 C.F.R. § 231.5(a)) limit the agency’s discretion and establish a
standard for judicial review, because they allow the agency to withdraw a veto “only
if [the agency determines] that an unacceptable adverse effect is not likely.” See
Trout Unlimited v. Pirzadeh, No. 20-35504, (9th Cir., June 20, 2021). Thus, the
court held that EPA’s decision was reviewable and remanded the case to the
district court. Id. (The Ninth Circuit’s oral arguments on the case are available
here.) Meanwhile, the Corps of Engineers denied the developer a 404 permit in
November, 2020, but the Corps agreed, in April 2021, to hear the developer’s
administrative appeal of the permit denial.
8

End Run Around a Veto: In 2008, EPA issued a veto of the Yazoo Backwater
Area Pumps project, a Corps of Engineers’ flood control project on the Mississippi
River. See 73 Fed. Reg. 54398 (Sept. 19, 2008). The agency has never revoked
that veto. However, twelve years later, the Corps made some minor changes to
the development proposal and EPA concluded that the Corps’ new proposal would
not be covered by the veto. See Emily Waggster Pettus, Yazoo Backwater flood
control project approved: But will it ever get built?, A.P., Jan. 15, 2021. Several
environmental groups sued EPA, claiming that the agency had, in effect, revoked
its veto in a manner that is arbitrary and capricious and did not follow procedures
required by the APA to revoke the veto. See American Rivers v. Environmental
Protection Agency, No. 1-21-cv-00097, (D.D.C., Jan. 12, 2021).

C.

Standards for the Veto

Section 404(c) empowers EPA to exercise its authority whenever the Administrator
determines that a discharge will have an unacceptable adverse effect on municipal
water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. See 33
U.S.C. § 1344(c). The statute does not further define “unacceptable adverse effect”, but
EPA’s regulations define it as an “impact on an aquatic or wetland ecosystem which is
likely to result in significant degradation of municipal water supplies (including surface or
ground water) or significant loss of or damage to fisheries, shellfishing, or wildlife habitat
or recreation areas.” See 40 C.F.R. § 231.2(e). More importantly, perhaps, the regulations
provide that “In evaluating the unacceptability of such impacts, consideration should be
given to the relevant portions of the section 404(b)(1) guidelines.” Id.

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Since neither the statute nor the regulations provide a clear substantive standard for
EPA’s exercise of authority, the agency frequently commences Section 404(c)
proceedings when it concludes that the Corps is planning to issue, or has issued, a permit
in violation of the 404(b)(1) guidelines. For instance, in James City County v. U.S.
Environmental Protection Agency, 955 F.2d 254 (4th Cir. 1992), EPA initially vetoed a
Corps permit because the agency determined that the Corps incorrectly determined that
there were no practicable alternatives for the proposed project. Similarly, in Bersani v.
Robichaud, 850 F.2d 36 (2d Cir. 1988), the Second Circuit upheld EPA’s veto of a mall
development project based on the agency’s determination that the Corps incorrectly
applied the alternatives analysis.
Since many of the projects that EPA has vetoed have been public works projects,
developers and local governments have argued that EPA should weigh and balance the
“public interest” of a project against any environmental harms when determining whether
a discharge would have an unacceptable adverse effect. However, courts have generally
rejected that argument. As the Fourth Circuit wrote in James City County v. Environmental
Protection Agency, 12 F.3d 1330 (4th Cir. 1993), in response to an argument that EPA
should weigh the necessity of an enlarged water supply for the community against the
environmental harms of the project:
“Congress obviously intended the Corps ... in the initial permitting process to
consider the total range of factors bearing on the necessity or desirability of
building a dam in the Nation’s waters, including whether the project was in the
public interest. ... Ultimately, however, recognizing the EPA’s expertise and
concentrated concern with environmental matters, Congress gave the final
decision whether to permit a project to that agency. Its authority to veto to protect
the environment is practically unadorned. ... In our view, the EPA’s only function
relating to the quantities of available water is limited to assuring purity in whatever
quantities the state and local agencies provide. For those reasons, we think its
veto based solely on environmental harms was proper.”
Questions and Comments
1.

Basis for decision: Although EPA frequently exercises its Section 404(c) authority
when it determines that the Corps has misapplied the 404(b)(1) guidelines, the
agency also exercises its authority by making a more general determination that a
discharge is likely to cause a significant degradation of water supplies or significant
loss of, or damage to, fisheries, shellfishing, or wildlife habitat or recreation areas.
When the agency exercises its authority in advance of a permit application, as in
the Pebble Mine case, it cannot rely on the 404(b)(1) guidelines, as there is no
project proposal to evaluate against the guidelines.

332

2.

Standard of Review: What standard of review will courts apply to EPA’s
determination that a discharge will have an unacceptable adverse effect on
municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational
areas? See James City County v. Environmental Protection Agency, 12 F.3d 1330
(4th Cir. 1993). To the extent that EPA’s decision is based on the 404(b)(1)
guidelines, does EPA owe any deference to the Corps’ interpretation of, or
application of, the guidelines? See in Bersani v. Robichaud, 850 F.2d 36 (2d Cir.
1988).

333

Drafting Exercise
The Freedom of Information Act, 5 U.S.C. § 552, allows any person to request and obtain
agency records on any topic, although it exempts nine categories of records from the
disclosure requirement. Id. § 552(b). The statute requires agencies to respond to requests
within specific time periods and authorizes agencies to charge reasonable fees to find,
duplicate and review documents that will be disclosed. Id. § 552(a). The statute also
authorizes agencies to disclose the documents without charging fees “if the disclosure of
the information is in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.” Id. § 552(a)(4)(A)(iii). Federal agencies adopt their
own regulations to implement FOIA and EPA’s regulations are codified at 40 C.F.R. § 2.100,
et. seq. The agency also maintains a FOIA reference guide that outlines the process for
making a FOIA request at https://www.epa.gov/foia
For this drafting exercise, you will be drafting a FOIA request to EPA, but DO NOT USE
EPA’S ONLINE FOIA REQUEST FORM. Instead, you should model your request on
sample letters like those provided by the National Freedom of Information Coalition, George
Washington University, or the Department of the Treasury. EPA’s regulations will identify
the appropriate person to whom your request should be directed.
For purposes of this drafting exercise, you are an attorney with Defenders of the Canadian
River, a non-profit environmental advocacy group. Several years ago, the Corps of
Engineers issued a Clean Water Act Section 404 permit to the Mammoth Quarry Company,
authorizing mining activities that impact wetlands adjacent to the Canadian River. Your
organization believes that the discharges authorized by the permit are having a much
greater impact on those wetlands than the Corps anticipated when it issued the permit.
Recently, EPA has been considering initiating Section 404(c) proceedings to “withdraw the
specification” of the site of Mammoth’s discharge as a disposal site. You have heard that
sometime in the last two months, Senator Letitia Fen, a supporter of the quarry, met with
EPA to express her opposition to Section 404(c) proceedings. You have also heard that
representatives of the Mammoth Quarry Company met with EPA, within the last month, to
provide the agency with studies that indicate that the discharge of dredged or fill material
from the quarry is not harming the wetlands adjacent to the Canadian River. After those
meetings, EPA announced that it had decided that it would not take any further action under
Section 404(c) at this time.
You don't know whether Senator Fen provided EPA with any documents at her meeting
with the agency or whether the agency kept any minutes regarding the meetings with
Senator Fen or the Mammoth Quarry Company, but you would like to see any documents
that the Senator or the Quarry Company provided to EPA, any documents that EPA
provided to the Senator or the Quarry Company, any minutes of the meetings, and
any communications between Senator Fen and EPA or the Quarry Company and EPA
relating to those meetings. In order to obtain those records, you need to make a request
to EPA under the Freedom of Information Act.

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A.
Prepare a FOIA request for the documents, minutes and communications described
above. In preparing your request, please be sure to direct the request to the appropriate
contact person. Assume that you would like the agency to waive any fees for locating or
reproducing these records and include, in your letter, a request for a waiver of those fees.
Include any information that is necessary to obtain the fee waiver.
B.
In two weeks, you are scheduled to meet with several other non-profit environmental
groups to develop an advocacy strategy regarding the Mammoth Quarry permit and you
would like to have the EPA records by that time. Is EPA required to provide you the records
within that time frame? If not, can you ask EPA to expedite your request and is it likely that
they will grant your request to expedite if the reason for the request is as described above?

Chapter Quiz
Now that you’ve finished Chapter 8, why not try a CALI Lesson on the material at:
http://cca.li/PZ. It should only take about 15 minutes.

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Chapter 9
States’ Roles and State Programs
Although the Corps of Engineers and the Environmental Protection Agency jointly
administer the Clean Water Act Section 404 program, States play a vital role in the
protection of wetlands. States can protect wetlands by: (1) creating their own State laws,
regulations and programs to protect wetlands, which can be more stringent and regulate
more wetlands than the Section 404 program; (2) assuming authority from the Corps of
Engineers to administer the federal Section 404 permit program, or streamlining
permitting under that program through the implementation of a State programmatic
general permit; (3) “vetoing” or imposing conditions on Section 404 permits through the
Clean Water Act Section 401 certification process; and (4) preventing the issuance of a
Section 404 permit for activities that violate State plans under the Coastal Zone
Management Act.

State Authorities
•
•
•
•

State Wetland Protection Programs
404 Assumption or Programmatic General Permits
401 Certification
Coastal Zone Management Act Certification

State programs to protect wetlands are especially important to address wetlands or
activities that are outside the jurisdiction of the Section 404 program. See Chapters 4 and
5, supra.
I.

State Programs

A.

Federal/State Relationship

The Clean Water Act, like most federal environmental laws, adopts a cooperative
federalism approach, recognizing “the primary responsibilities and rights of States to
prevent, reduce and eliminate pollution...” See 33 U.S.C. § 1251(b). The statute explicitly

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provides that the Clean Water Act does not pre-empt State or local water pollution control
programs, and recognizes that States and local governments can establish programs that
are more restrictive and regulate more waters and activities than the federal program.
See 33 U.S.C. § 1370. Section 510 of the statute provides:
Except as expressly provided in this chapter, nothing in this chapter shall
(1) preclude or deny the right of any State or political subdivision thereof or
interstate agency to adopt or enforce
(A) any standard or limitation respecting discharges of pollutants, or
(B) any requirement respecting control or abatement of pollution;
except that if an effluent limitation, or other limitation, effluent standard,
prohibition, pretreatment standard, or standard of performance is in effect
under this chapter, such State or political subdivision or interstate agency
may not adopt or enforce any effluent limitation, or other limitation, effluent
standard, prohibition, pretreatment standard, or standard of performance
which is less stringent than the effluent limitation, or other limitation, effluent
standard, prohibition, pretreatment standard, or standard of performance
under this chapter; or
(2) be construed as impairing or in any manner affecting any right or jurisdiction of
the States with respect to the waters (including boundary waters) of such States.
Id. Under this floor preemption approach, programs of states and local governments
can be more restrictive, but not less restrictive, than the federal program.
In theory, therefore, states can provide vital protection for wetlands by addressing waters
and activities that are not regulated under the Section 404 program, or by imposing
additional limits on activities that are regulated under that program. However, a recent
study prepared by the Environmental Law Institute found that over 2/3 of states have
enacted laws that could limit the authority of states to regulate waters that are not
regulated under the Clean Water Act. See Environmental Law Institute, State Constraints:
State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the
Scope of the Federal Clean Water Act (May 2013). Many of those laws were not targeted
specifically at wetlands regulation, but apply broadly to state environmental regulation or
state regulation of a range of activities. According to the ELI report, thirteen states have
adopted laws that require that state regulations must be “no more stringent than” federal
regulations. Id. at 1. Twenty-three other states have adopted laws that prohibit states from
adopting regulations that are more stringent than federal regulations unless certain
requirements are met. Id. at 13-14. In addition to those limitations, the report notes that

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twenty-two states have adopted laws that could limit state protection of wetlands because
the laws require state officials to compensate landowners for reductions in property value
caused by regulation or require state officials to assess their actions for takings
implications or other impacts on private property rights. Id. at 24. The report suggests that
those laws could chill state regulation of activities in wetlands that are not regulated under
federal law. Id.
Although many states have laws that could limit the authority of the states to regulate
activities that are not regulated under the Clean Water Act, half of the states have adopted
laws and regulations that provide some protection to wetlands that are not regulated
under the Clean Water Act and many states have adopted laws that require permits for
activities that are not regulated under the Clean Water Act despite the limits identified in
the ELI report. In fact, the ELI report noted that 17 states that had enacted laws that could
limit state regulation of waters and activities that are not regulated under the Clean Water
Act nevertheless regulated those activities. Id. at 2. Those programs, and state programs
that provide additional protection to wetlands that are already regulated under the Clean
Water Act, are described in the next section.

Research Problems
State Laws: Using the tools that you learned in your legal research class regarding
researching state laws, see if you can answer the following questions. When answering
the questions, please provide citations to support your answers.
1. When will a government action constitute a “taking” under Texas law?
2. In Mississippi, when a state action prohibits or severely limits the right of a landowner
to conduct forestry or agricultural activities on forest or agricultural land (but does not
result in a taking), the landowner may still sue for compensation in an inverse
condemnation action. What level of reduction in property value triggers that right under
Mississippi law? Is the landowner entitled to compensation if the government is acting
to prohibit a nuisance by the landowner?

3. Does Idaho law place any limits on the authority of state agencies to adopt rules to
protect wetlands and waters that are more stringent than the rules adopted by the
federal government? If so, please describe the general limits.

B.

A Survey of State Programs

While the Clean Water Act allows states and local governments to administer their own
programs to protect wetlands and water quality, it does not require them to do so.
Nevertheless, according to a report prepared by the Environmental Law Institute in 2008,
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twenty three states have enacted laws and regulations to require state permits for dredge
and fill activities in wetlands and other waters in the state. See Environmental Law
Institute, State Wetland Protection: Status, Trends & Model Approaches 9 (March 2008)
[hereinafter “ELI State Wetland Protection Report”]. Eight of those states limit the permit
requirement to activities in coastal and tidal wetlands, while the other fifteen regulate
activities in freshwater wetlands as well as in coastal, tidal and shoreline areas. Id. at 10.
In states with their own wetlands permitting programs, a discharge may often require both
a federal and state wetlands permit. If the Corps and the state have not streamlined the
permitting process through a State Programmatic General Permit, see infra, the project
developer will need to obtain permits from both the Corps and the state. As noted in
Chapter 6, if the Corps completes its review of a section 404 permit and issues the permit
before other agencies (including the state) have completed their reviews, the Corps will
normally condition the permit on approval by the other agencies. See 33 C.F.R.
§ 325.2(d)(4).
In light of the fact that state programs can regulate waters that are outside of federal
jurisdiction, six states regulate “geographically isolated” wetlands, such as the wetlands
at issue in the Solid Waste Agency of Northern Cook County case, although some of
those programs are not permitting programs. See ELI State Wetland Protection Report at
11.
States with permit programs
for freshwater, coastal and
tidal wetlands

States with permit
programs for coastal
and tidal wetlands only

States with programs
for geographically
isolated wetlands

Connecticut, Florida, Maine,
Maryland, Massachusetts,
Michigan, Minnesota, New
Hampshire, New Jersey,
Oregon, Pennsylvania, Rhode
Island, Vermont, and Virginia

California, Delaware,
Georgia, Louisiana,
Mississippi, North
Carolina, South Carolina,
and Washington

Indiana, North Carolina,
Ohio, Tennessee,
Washington, and
Wisconsin

Id. While some of the states with wetlands permitting programs have adopted dedicated
wetlands permitting programs, other states rely on a patchwork of laws, such as water
pollution laws, growth management laws, shoreline management laws, and other laws,
to regulate activities in wetlands. Id. at 11. In most states, permits are issued by a state
agency, but some states have created programs that authorize local agencies to
administer wetlands permit programs. Id.
Regardless of whether states have adopted state wetlands permitting programs, every
state has adopted a definition of “waters” (by legislation or regulation) that includes
wetlands, and forty-two states have adopted statutory or regulatory definitions for
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“wetlands.” Id. at 15, 18.
State wetlands programs are often similar to the federal program in many respects. For
instance, most states delineate wetlands using the 1987 Corps delineation manual,
although eighteen states rely on other delineation criteria or guidelines, in addition to, or
instead of, the Corps manual. Id. at 19-20. Regarding mitigation, thirty six states have
adopted legislation or policies to authorize and regulate mitigation for impacts to wetlands
or other aquatic resources. Id. at 23. Twenty-two states specifically authorize or require
mitigation banking through legislation, regulations or guidance. Id. at 26. Eighteen states
specifically address “in lieu fee mitigation” through legislation, regulations or guidance. Id.
at 28. Although only fourteen states have adopted statewide goals regarding wetland
restoration, most of those states have adopted a “no net loss” goal, similar to the federal
goal, or a goal of restoring a specific amount of wetland acreage within a specific timeframe. Id. at 47.
State wetland programs are also similar to the federal program in that several agencies
are usually involved in wetland regulation, management or protection in each state. Id. at
32. In twenty-six states, two resource or environmental agencies oversee wetland
activities, with one agency generally focusing on regulatory activities, while the other
focuses on non-regulatory activities. Id. at 32. In eleven states, authority over wetlands is
divided among three or more agencies. Id. at 33. In twelve states, though, a single state
agency administers all of the wetland programs in the state. Id. at 32.
Not surprisingly, the scope of activities regulated, the resources dedicated to wetlands
regulation, protection and restoration, and the level of monitoring and enforcement of
state wetland protection laws vary greatly from state to state. Only sixteen states have
monitoring and/or assessment programs that focus on wetlands, and only eight states
implement a program to recruit community members as volunteer monitors for wetlands.
Id. at 42, 44. The level of wetland protection afforded by states is often constrained by the
level of funding available for wetland protection activities. Most states rely on federal
grants and general state appropriations to fund wetland programs, but more than half of
the states rely, in part, on fees, and fifteen states rely, in part, on dedicated state
appropriations. Id. at 36.

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State Programs - Resources
Association of State Wetland Managers (ASWM) Website
State Wetland Programs - Reports and Guidance from ASWM
State Wetland Program Summaries - ASWM
State Wetland Program Summaries - Environmental Law Institute (ELI)
State Wetland Protection: Status, Trends and Model Approaches - ELI
State Constraints Report - ELI
EPA web site for State, Tribal and local Initiatives (financial assistance, program
descriptions, etc.)

Research Problems
State Laws: When answering the following questions, please provide citations to support your
answers.
1.

How does the Minnesota Water Pollution Control Act define “waters of the state”?
Which agencies make “determinations” regarding projects that result in fill, excavation
or drainage of wetlands under the state’s Wetland Conservation Act? Which state
agency is responsible for enforcing the state laws preserving and protecting
groundwater quantity, wetlands and public waters?

2.

What activities require a permit under Georgia’s “Coastal Marshlands Protection Act
of 1970"? Who issues the permits? How are “marshlands” defined under that Act?

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Interviews
Alexandra Dunn, Executive Director and General Counsel of the
Environmental Council of the States responds to the following
questions:
•
•
•
•
•

Are there regional or other variations in the attitudes that States
take toward wetlands regulation? (YouTube Video)
Do many States operate their own State wetland permitting
programs and could you describe them generally? (YouTube
Video)
What are the most effective tools that States are using to protect
wetlands? (YouTube Video)
What are the greatest impediments to wetland protection in the
States? (YouTube video)
What is the Association of Wetlands Managers and what role do
they play in wetland protection? (YouTube Video)

Jan Goldman Carter, Senior Manager and Counsel for the National
Wildlife Federation's Wetlands and Water Resources Program,
discusses the variety State wetland protection programs and the political
pressure on State programs (YouTube Video).

II.

State Assumption of the Section 404 Program and State Programmatic
General Permits

A.

Assumption of the 404
Permitting Program
In addition to preserving the authority
of states to administer their own state
wetland protection programs, the
Clean Water Act, like most federal
environmental laws, authorizes states
to take over and administer the federal
wetlands permitting program in lieu of
the Corps of Engineers.
Pursuant to Section 404(g) of the
Clean Water Act, a state can assume

Resources
EPA State Program Rules - 40 C.F.R. Part 233
Michigan MOA w/ EPA and Corps for
assumption and Michigan program regs.
New Jersey MOA w/ EPA and Corps for
assumption and N.J. program regs.
Florida MOA w/ EPA and the Corps for
assumption and Florida program regs.
ASWM web page re: assumption and
Handbook for States/Tribes re: assumption

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the authority to issue permits for the discharge of dredged or fill material into waters
regulated under the Clean Water Act other than traditional navigable waters or waters
seaward of the high water mark. See 33 U.S.C. § 1344(g). In 2018, the Corps issued a
memorandum to clarify the extent of non-assumable waters. EPA’s regulations also
authorize tribes to assume that authority within their jurisdiction. See 40 C.F.R. § 233.2
(defining “state” to include “indian tribe”). In order to assume authority to administer the
Section 404 permitting program, a state must enact laws and regulations to create a
program that meets several requirements outlined in the statute that are designed to
ensure that the state has the same authority to administer the Section 404 permitting
program as the Corps would have. See 33 U.S.C. § 1344(h)(1). The requirements of the
state program must be at least as stringent as, and may be more stringent than, the
federal requirements. See 40 C.F.R. § 233.1(c)-(d). Although the Corps administers the
Section 404 permitting program, Congress gave EPA, rather than the Corps. the authority
to review applications by states to assume Section 404 permitting authority. If EPA
determines that the state program meets the requirements of the statute, the agency will
approve the program and the state will assume authority to issue Section 404 permits in
lieu of the Corps. See 33 U.S.C. § 1344(h)(2). The Corps will, however, continue to have
authority to issue permits for discharges into traditional navigable waters and waters
seaward of the high water mark. In addition, to the extent that the state program is more
stringent than the federal program, those more stringent provisions can only be enforced
by the state and are not subject to federal oversight and enforcement. See 40 C.F.R.
§ 233.1(c).
The rest of the state program is, however, subject to federal oversight. After EPA
approves a state’s request to assume Section 404 permitting authority, the state must still
provide EPA notice and an opportunity to comment on individual and general permits that
the state reviews or prepares. See 33 U.S.C. § 1344(j). EPA can, however, waive its
authority to review categories of discharges in the state, by adopting regulations to waive
the authority. Id. § 1344(k)-(l). If EPA doesn’t waive its authority to review permits issued
by the state, EPA solicits comments from the Corps, the Fish and Wildlife Service and the
National Marine Fisheries Service when determining whether to submit comments to the
state and when framing comments for the permit. See 40 C.F.R. § 233.50(b). If EPA
objects to a permit that the state plans to issue, the state cannot issue the permit unless
EPA withdraws its objection. See 33 U.S.C. § 1344(j). If the state does not deny the permit
or revise it to address EPA’s objections, the state loses the authority to issue that permit
and the Corps processes that permit application. Id.
While a State is administering the Section 404 permitting program, EPA also retains the
authority to bring enforcement actions, just as it would if the Corps were administering the
program. See 33 U.S.C. § 1344(n). Finally, if EPA determines that a state that has
assumed authority to issue Section 404 permits is not administering the program in
accordance with federal standards, the agency can, after notice and a hearing, withdraw

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the state’s authority to administer the program. Id. § 1344(i).
Although the Clean Water Act authorizes states to assume Section 404 permitting
authority in lieu of the Corps, only three states have done so. Michigan assumed authority
for the program in 1984, see 40 C.F.R. § 233.70, New Jersey assumed authority for the
program in 1994, see 40 C.F.R. § 233.71 and Florida assumed authority for the program
in 2020. See 85 Fed. Reg. 83553 (Dec. 22, 2020). Shortly after Florida assumed authority
to issue Section 404 permits, the Center for Biological Diversity sued EPA, alleging that
the agency violated the Clean Water Act and the APA when it approved the assumption.
See Center for Biological Diversity v. Wheeler, No. 21-cv-119 (D.D.C., Jan. 14, 2021).
B.

State Programmatic General
Permits

Resources
States that do not assume Section 404
ASWM Website re: SPGPs
permitting authority from the Corps can still
play a greater role in the administration of
the federal program and streamline
permitting for developers in the state through a State Programmatic General Permit. As
noted in Chapter 6, supra, Section 404(e) authorizes the Corps of Engineers to issue
general permits “on a state, regional or nationwide basis for any category of activities
involving discharges of dredged or fill material if the Secretary determines that the
activities in such category are similar in nature, will cause only minimal adverse
environmental effects when performed separately, and will have only minimal cumulative
adverse effect on the environment.” See 33 U.S.C. § 1344(e).
Pursuant to that authority, the Corps has issued programmatic general permits in
several states that provide that persons who obtain a permit under the state wetlands
permitting program do not have to apply for an individual Section 404 permit from the
Corps as long as they comply with the terms of the programmatic general permit. See,
e.g. Department of the Army Programmatic General Permit, State of Maryland MDSPGP-4 (Oct. 1, 2011). The general permit only applies to specific categories of
activities in the state (i.e., discharges in a specific region, discharges that have impacts
below a specific threshold, discharges associated with specific types of activities) and the
Corps issues the permit pursuant to the normal general permitting procedures described
in Chapter 6 after the Corps determines that the activities in the permit are similar in
nature and will cause only minimal adverse effect on the environment. See 33 U.S.C.
§ 1344(e). The programmatic general permit, therefore, streamlines the permitting
process in those states for persons engaged in the activities authorized by the permit.
Like other general permits, programmatic general permits are issued for a five year term,
but can be revoked if the Corps determines, after opportunity for a public hearing, that the
activities authorized by the permit have an adverse effect on the environment or are more

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appropriately authorized by individual permits. Id.
When the Corps issues a programmatic general permit, the permit will include conditions
that specify whether, and to what extent, the Corps, EPA and other federal agencies will
review or comment on the use of the general permit by a discharger. See, e.g.
MDSPGP - 4, supra at 6-9. For activities that have very little impact, the permit may
provide very limited federal review. Id. The states for which the Corps has issued
programmatic general permits are listed below.

States with Programmatic General Permits
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Connecticut (all waters)
Delaware (all waters)
Florida (limited waters)
Louisiana (limited waters)
Maine (all waters)
Maryland (all waters)
Massachusetts (all waters)
New Hampshire (all waters)
New Jersey (all waters)
North Carolina (coastal zone)
Pennsylvania (all waters)
Rhode Island (all waters)
Utah (limited waters)
Vermont (all waters)
Virginia (limited waters)

Questions and Comments
1.

Why do you think that more states have not assumed administration of the Section
404 permitting program from the Corps, when so many states have taken over the
Clean Water Act Section 402 permitting program and other federal environmental
permitting programs? What are the benefits and disadvantages of taking over the
federal program? See Association of State Wetland Managers, Clean Water Act
Section 404 State Assumption (2010).

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2.

What are the similarities and differences between assumption of the Section 404
permitting program and a statewide programmatic general permit?

3.

For a more detailed examination of state assumption of the Clean Water Act 404
program, see Lance D. Wood, The ECOS Proposal for Expanded State
Assumption of the CWA §§ 404 Program: Unnecessary, Unwise and Unworkable,
31:3 Nat’l Wetlands Newsletter 13 (2009); Oliver A. Houck & Michael Rolland,
Federalism in Wetlands Regulation: A Consideration of Delegation of Clean Water
Act Section 404 and Related Programs to the States, 54 Md. L. Rev. 1242 (1995).
Professor Jonathan Adler explores whether federal regulation has “crowded out”
state wetlands regulation in When is Two a Crowd? The Impact of Federal Action
on State Environmental Regulation, 31 Harv. Envtl. L. Rev. 67 (2007).

Research Problems
State PGPs: State PGPs can be found on the Corps’ websites for the Division in which a
State is located or on the website of the State agency that regulates water quality. Please
answer the following questions regarding the PGPs of Louisiana and North Carolina.
1. Does the Louisiana Programmatic General Permit apply to the discharge of dredged or
fill material into waters outside of the Louisiana Coastal Zone? Would minor road crossings
that cause the loss of less than .5 acres of special aquatic sites be regulated as Category
I or Category II activities under that permit?
2. What activities are authorized by the North Carolina Programmatic General Permit?
Does the permit impose any limits on mechanized land-clearing activities in waters or
wetlands?

Interview
Alexandra Dunn, Executive Director and General Counsel for the
Environmental Council of the States, discusses impediments to
assumption by States of the 404 permitting program. (YouTube Video)

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III.

401 Certification

While states can adopt their own state wetlands permitting programs, assume the federal
permitting program and streamline regulation through state programmatic general
permits, almost half of the states do not take those approaches and rely solely on the
Clean Water Act Section 401 certification process to regulate wetlands in their state.
According to a 2008 ELI report, 22 states do not have any wetlands regulatory program
and rely solely on the 401 certification process to regulate wetlands. See ELI State
Wetland Protection Report at 13. An additional 15 states regulate coastal wetlands,
isolated wetlands, or other subcategories of wetlands through a state permitting program,
but rely on section 401 certification as the primary form of regulation for other wetlands in
the state. Id. Thus, section 401 certification is probably the most important tool in the
Clean Water Act for state regulation of wetlands.
Section 401 of the Clean Water Act provides:
Any applicant for a Federal license or permit to conduct any activity ...which may
result in any discharge into the navigable waters, shall provide the licensing or
permitting agency a certification from the State in which the discharge originates
or will originate ... that any such discharge will comply with [state water quality
standards and several other requirements of the Clean Water Act] ... No license or
permit shall be granted until the certification required by this section has been
obtained or has been waived ... No license or permit shall be granted if certification
has been denied by the State ….
33 U.S.C. § 1341(a)(1). In light of that requirement, whenever a person applies to the
Corps for a Section 404 permit, or whenever a person applies for any Federal license or
permit that results in a discharge into the navigable waters (including jurisdictional
wetlands), they must provide the permitting or licensing agency with a certification from
the State that the activity to be authorized by the permit complies with state water quality
standards and other requirements of the Clean Water Act. The state can (1) certify that
the discharge meets the state standards and requirements; (2) deny certification; or (3)
attach comments or conditions to any permit that the Corps issues to ensure that the
discharge complies with state water quality standards and “appropriate requirement[s] of
state law”. Id. § 1341(d). The Corps (or other permitting or licensing agency) cannot issue
the permit unless the State certifies that the activity complies with the state standards or
waives its right to certify. Id. § 1341(a). If a state fails or refuses to act on a request for
401 certification within 60 days after receiving the request, the state waives its right to
veto or condition the permit. See 33 C.F.R. § 325.2(b)(1)(ii). Any conditions that the state
attaches to a 401 certification become conditions of the federal permit or license. See 33
U.S.C. § 1341(d).

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In deciding whether to certify a discharge, deny certification or include conditions in the
permit for the discharge, states can consider not only the immediate effects of the
discharge on water quality in the state, but the longer term effects of the activity authorized
by the discharge on water quality. See 40 C.F.R. § 121.2(a)(3)-(4); 33 C.F.R. § 320.3(a);
PUD No. 1 of Jefferson County v. Washington Department of Environmental Quality, 511
U.S. 700 (1994).
As a result, even when a state does not have a state wetlands permitting program, they
can exert some control over discharges into wetlands in their state, as long as the
discharges require a Section 404 permit (or other federal permit or license), and as long
as the state’s water quality standards or “other appropriate requirements of state law”
provide protection for wetlands. The 2008 ELI report found that states rarely deny or waive
401 certification, although they may frequently include conditions in their certifications.
See ELI State Wetland Protection Report at 15. The number of 401 certifications issued
each year by states varies greatly, from Connecticut, issuing fewer than 20 certifications
per year, to California, issuing more than 1000 certifications per year. Id. States that have
their own state wetland permitting and regulatory programs generally rely less frequently
on Section 401 certification to protect wetlands.
As noted above, in determining whether to grant, deny or condition 401 certification for a
discharge into wetlands, states focus on whether the discharge violates state water
quality standards and other appropriate requirements of state law. The Clean Water Act
requires states to establish water quality standards, which are reviewed and approved
by EPA, for the waters in the state that are regulated under the Act. See 33 U.S.C. § 1313.
Water quality standards generally include use designations for waters in the state and
water quality criteria to protect the various uses of water. See 40 C.F.R. § 131.3(i). The
standards are set at levels to “protect the public health or welfare, enhance the quality of
water and serve the purposes of the Act.” Id.
Regarding use designations, states can establish a range of acceptable uses for waters
in the state, including recreation, drinking water supplies, fishing, and others. See 40
C.F.R. § 131.10. Water quality criteria are then established for each use, or for all waters
in the state, to ensure that the waters can be used for the designated uses. Id. § 131.11.
The criteria may be specific numerical limits on pollutant levels in a body of water or
they may be narrative criteria that don’t include specific numerical limits. Id. States
assign use designations to each body of water in the state that is regulated under the
Clean Water Act (and can assign different use designations for different segments of the
water), and the water quality criteria that apply to the assigned use, or to all waters in the
state, set the pollution limits for that body of water (or segment of the body of water). See
40 C.F.R. § 131.10. Georgia’s water quality standards are linked here as an example.

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As noted above, every state has adopted a definition of “waters’ that includes wetlands.
However, most states have not adopted water quality standards that are specifically
designed to provide protection to wetlands (i.e., by designating uses for wetlands or
developing specific criteria for wetlands). According to the Environmental Law Institute’s
2008 50 state survey, only 13 states have adopted water quality standards that are
specifically targeted at protecting wetlands. See ELI State Wetland Protection Report at
37. That doesn’t mean that water quality standards in the other states might not provide
protection to wetlands and might not be used as the basis for denying or conditioning 401
certification for a discharge that affects wetlands. Indeed, other water quality standards
may provide incidental protection to wetlands, even though they were not adopted with
that specific goal in mind. For instance, water quality standards that are not wetlandspecific often include limits to address flood control, sediment trapping, habitat protection,
pollution control, shoreline protection, and maintenance of stream flow. Id. at 38.
While a variety of water quality standards may provide incidental protection to wetlands,
wetland-specific water quality standards can be a more effective way to provide wetland
protection and to serve as a basis for denial or conditioning of 401 certification. EPA
published guidance in 1990 to assist states in developing water quality standards
specifically targeted to protect wetlands. See U.S. Environmental Protection Agency, EPA
440/S-90-011, Water Quality Standards for Wetlands: National Guidance (July 1990).
Frequently, whether a state adopts wetland-specific water quality standards depends on
the broader range of tools that the state uses to protect wetlands. Most of the states that
have adopted wetland-specific water quality standards do not have a permitting program
that applies to all wetlands in the state and rely heavily on the Section 401 certification
process to regulate wetlands. Id. at 37. Similarly, many of the 37 states that have not
adopted wetland-specific water quality standards do not rely primarily on the 401
certification process to protect wetlands. Id at 39.
While the Section 401 certification process primarily protects the interests of the state
where a discharge of dredged or fill material will occur, the statute also authorizes EPA
to notify other states about potentially permitted discharges if the agency determines that
the discharge may affect the water quality in the other states. See 33 U.S.C. § 1341(a)(2).
Based on recommendations from the state and EPA, the federal permitting agency may
then include conditions in the federal license or permit necessary to meet water quality
standards in the other states or may deny the permit if it is not possible to condition the
permit to meet those standards. Id.
Questions and Comments
1.

Water Quality Standards: In addition to designated uses and water quality
criteria, state water quality standards usually include provisions to ensure
compliance with a state “anti-degradation policy.” The anti-degradation policy is

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designed to maintain existing water uses and a level of water quality necessary to
protect and maintain existing water uses. See 40 C.F.R. § 131.12. In PUD No. 1
of Jefferson County v. Washington Department of Environmental Quality, 511 U.S.
700 (1994), the Supreme Court held that a state can deny 401 certification or
condition it on compliance with any one of the three components of water quality
standards - uses, criteria, or standards necessary to comply with an antidegradation policy.
2.

Appropriate requirements of state law: Section 401 authorizes states to deny or
condition permits on compliance with “appropriate requirements of state law.”
While the Supreme Court, in the PUD No. 1 of Jefferson County case, held that
water quality standards were “appropriate requirements of state law”, the Court
refused to “speculate on what additional state laws, if any, might be incorporated”
by that language.

3.

Amendments to the Section 401 regulations: At the same time that the Trump
Administration was narrowing the federal jurisdiction over “waters of the United
States”, arguing that the move protected States’ rights, the Administration reduced
States’ control over federally permitted projects in “waters of the United States” by
making significant changes to the regulations implementing Section 401 of the
Clean Water Act. See 85 Fed. Reg. 42210 (July 13, 2020). The new rules (1)
require States to take action within 1 year of notification, regardless of whether
permit or license applications are complete, and do not authorize any tolling of the
time period; (2) provide that the certification decision must be based on the
discharges from a proposed activity, rather than the water quality effects of the
activity as a whole; (3) restrict the conditions that may be included in certifications
by States; and (4) limit enforcement of conditions in certifications to federal
agencies. Id. States, environmental groups, and Native American tribes filed
several lawsuits challenging the rules. See, e.g. In re Clean Water Act Rulemaking,
No. 20-04636 (N.D. Cal., Oct. 30, 2020) (consolidating several lawsuits filed in the
court); Delaware Riverkeeper Network v. U.S. Environmental Protection Agency,
No. 2:20-CV-3412, (E.D. Pa., July 13, 2020); South Carolina Coastal Conservation
League v. Wheeler, No. 2:20-cv-03062-DCN (D.S.C., Aug. 26, 2020). Shortly after
President Biden took office, he directed EPA to review the rule changes, see
Executive Order 13990, and on June 2, 2021, the agency announced that it
intended to reconsider and revise the rule. See 86 Fed. Reg. 29541 (June 2, 2021).
In addition, the Administration filed motions in several of the lawsuits seeking a
remand of the rule without vacatur, alleging that the agency identified “substantial
concerns with a number of provisions of the 401 Certification Rule that relate to
cooperative federalism principles and CWA Section 401's goal of ensuring that
states are empowered to protect their water quality”. See Morgan Conley, EPA
Urges Courts to Remand Water Rule As It Retools Regs, Law 360, July 2, 2021.

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401 Certification Resources
401 Certification and wetlands - EPA
Water Quality Standards for Wetlands - EPA
EPA Guidance on Water Quality Standards for Wetlands
Section 401 Certification Handbook for States and Tribes (EPA)
EPA Guidance on Setting Nutrient Criteria for Wetlands in WQ Standards
ASWM report on Section 401 Certification Best Practices for States
Water Quality Standard Regulations - 40 C.F.R. Part 131
Water Quality Standards - EPA Web Page
Water Quality Standards Handbook - EPA

Research Problems
State Laws: When answering the following questions, please provide citations to support
your answers.
1. What agency is responsible for adopting water quality standards in the State of North
Carolina? How are wetlands defined by regulation for purposes of that law?
2. What agency is responsible for adopting water quality standards in the State of
Wyoming? How are wetlands defined by regulation for purposes of that law?

Interview
Alexandra Dunn, Executive Director and General Counsel for the
Executive Council of the States, discusses the way in which States
use the 401 certification process to protect wetlands. (YouTube
Video).

IV.

Coastal Zone Management Act Certification

In addition to the tools outlined above, some states can also utilize the Coastal Zone
Management Act’s certification process to protect wetlands in the state. Under the Act,
coastal states (states that border the Atlantic, Pacific and Arctic Oceans, the Gulf of
Mexico, the Long Island Sound, or one or more of the Great Lakes) prepare coastal zone

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management plans, which are reviewed and approved by the Secretary of Commerce.
See 16 U.S.C. § 1455. Approved programs are eligible for federal funding to assist in
implementation of the programs. Id. Twenty-nine states have approved coastal zone
management programs. See U.S. Department of Commerce, National Oceanographic
and Atmospheric Administration, State Coastal Management Program Manager and
Federal Consistency Contacts. The states with approved programs are: Alabama,
California, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana,
Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire,
New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island,
South Carolina, Texas, Virginia, Washington, and Wisconsin. Id.
To ensure consistency with the state programs, any person who applies for a federal
permit or license to conduct an activity that will affect land or water use or natural
resources of the coastal zone must provide, as part of the permit or license application,
“a certification that the proposed activity complies with the enforceable policies of the
state’s approved program and that such activity will be conducted in a manner consistent
with the program.” See 16 U.S.C. § 1456(c)(3)(A). Consequently, if a proposed discharge
of dredged or fill material will affect the land, water or resources of the coastal zone in a
state with an approved coastal zone management program, the applicant for a section
404 permit will need to submit a certification from the state that the discharge complies
with, and is consistent with, the state’s coastal zone management program. If the
applicant does not submit the certification, the Corps will not issue the Section 404 permit.
See 33 C.F.R. § 325.2(b)(2)(ii). Pursuant to this authority, therefore, a state could refuse
to certify a discharge that would harm wetlands in the coastal zone if the discharge was
not consistent with the state’s program or did not comply with the program.

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Hypothetical
The State of Colorado does not have any laws that require persons to obtain permits from the
State to undertake activities that impact wetlands in the State. Assume, for purposes of this
question, that Colorado does not issue Clean Water Act Section 402 permits and that those
permits are issued by EPA. The City of Alamosa, Colorado is upgrading its sewage treatment
plant and has applied to EPA to amend its permit under Section 402 of the Clean Water Act to
discharge treated wastewater into the Rio Grande River. The State of Colorado is concerned
that high levels of nutrients and chlorine discharged from the sewage treatment plant might
harm the freshwater wetlands that are located downstream of the treatment plant, adjacent to
the Rio Grande River. Will the city be required to obtain a permit or other approval from the
State of Colorado as part of the Section 402 permit process? Is there any action that Colorado
can take to limit the amount of nutrients or chlorine that the plant will be allowed to discharge
under its Section 402 permit? Could the State rely on a local ordinance of the City of Alamosa
that limits the amount of nutrients that are discharged into the Rio Grande River?
The Rio Grande River flows south from Colorado into New Mexico. If the state of New Mexico
is also concerned about the levels of nutrients and chlorine that will be discharged by the
treatment plant, is there any action that it can take to limit the amount of nutrients or chlorine
that the plant will be allowed to discharge under its Section 402 permit? With what success? It
is not necessary to provide specific state statutory provisions to answer these questions.

Chapter Quiz
Now that you’ve finished Chapter 9, why not try a CALI Lesson on the material at:
http://cca.li/Q0. It should only take about 15 minutes.

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Chapter 10
Administrative Appeals, Judicial Review
and Enforcement
When the Corps of Engineers or EPA takes an action under the Clean Water Act, or fails
to take an action, landowners, interest groups, states, and any number of other persons
may seek to challenge the agencies’ action or inaction. Part I of this chapter examines
the administrative and judicial avenues for appealing those decisions.
However, the Corps and EPA are not simply defendants in administrative and judicial
proceedings. Whenever a person fails to comply with the permitting requirements or other
requirements of the Clean Water Act, the agencies can take a variety of administrative or
judicial enforcement actions. Part II of this chapter examines those enforcement options.
I.

Administrative Appeals and Judicial Review

A.

Administrative Appeals of Corps’
decisions

Resources
Corps Administrative Appeal Regulations
Fact Sheet and Request for Appeal
(Mississippi Valley Division of the Corps)
Corps videos describing appeals process
Flow chart of appeal process for permit
decisions and for approved jurisdictional
determinations
RGL 06-01 - Timeliness of a request for
appeal

The Clean Water Act does not explicitly
provide for an administrative process to
review the Corps’ actions in administering
the Section 404 permit program and there
was no administrative appeal process for the
program for the first several decades of its
existence. To the extent that persons wanted
to challenge a Corps decision to issue or
deny a permit or to take some other action,
they could only challenge those actions in
court, if at all. However, in 1999 and 2000,
the Corps of Engineers adopted regulations that created an administrative appeal
program for final permit decisions, see 64 Fed. Reg. 11,708 (March 9, 1999) and final
jurisdictional determinations. See 65 Fed. Reg. 16,486 (March 28, 2000). One of the
advantages of the program for the Corps and for landowners is that it should lead to more
uniform and consistent decision-making. As noted in Chapters 4 and 5, absent an appeal,

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final permit decisions and final jurisdictional determinations are made at the District level,
by 43 different District Engineers. The appeal process adopted by the Corps provides for
review at the Division level. Since there are only 9 Divisions, as opposed to 43 Districts,
the decision-making should be more uniform and consistent. (Note: Although there are 9
Divisions, the Transatlantic Division does not issue Section 404 permits, since the
Division only encompasses the Middle East and Asia).
Since administrative processes are generally quicker and less expensive than judicial
processes, the administrative appeal process should also save the Corps and challengers
time and money by keeping challenges out of court. It should also provide the Corps with
an additional opportunity to develop a record that can withstand judicial challenge if the
agency’s decision is ultimately contested in court.
1.

Reviewable Actions

The Corps’ regulations limit the agency
Appealable action means an approved
actions
that
can
be
appealed
jurisdictional determination, a permit
administratively. Under the regulations,
denial, or a declined permit. 33 C.F.R.
landowners and permit applicants can
§ 331.2.
appeal: (1) an approved jurisdictional
determination; (2) a written denial of an
individual permit application with prejudice
(a permit denial); and (3) an individual permit or letter of permission that the applicant
has declined to accept because he has objections to the terms and conditions of the
permit (a declined permit). See 33 C.F.R. § 331.2.
Consequently, a preliminary jurisdictional determination, in which the Corps indicates
that there may be jurisdictional waters on a parcel of property or which indicates the
approximate location of jurisdictional waters on a parcel of property, cannot be appealed
administratively, while an approved jurisdictional determination can be appealed
administratively. Id. As noted in Chapter 4, supra, an approved jurisdictional
determination is an official determination by the Corps that there are, or are not,
jurisdictional waters on a parcel of property, and outlining the limits of the waters. See 33
C.F.R. § 331.2.
Regarding permit decisions, if the Corps denies an individual permit request without
prejudice, for instance, because a state denied Section 401 certification or refused to
certify that the discharge was consistent with a coastal zone management plan, the
Corps’ permit denial cannot be administratively appealed. Id. The Corps’ denial of an
individual permit request can only be challenged administratively when the Corps denies
the permit with prejudice. Further, if the Corps determines that a general permit does
not authorize a particular activity, that decision cannot be appealed administratively. The

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administrative appeal process is limited to individual permit decisions. Id.
In addition to limiting the actions that can be challenged administratively, the regulations
limit who can raise those challenges. Only “affected parties”, defined as permit
applicants, landowners or other persons with a substantial and identifiable legal interest
in the property at issue, can bring administrative challenges. Id. Neighbors, competitors,
interest groups, state or local governments, and other interested parties can only
challenge actions of the Corps judicially, if at all.
2.

Review Process

At the time that the Corps makes a decision at the District level that can be appealed
under its regulations, the agency provides a notice to the person to whom the decision is
directed that the decision can be appealed, a fact sheet describing the appeal process,
and a form that the person can use to request an appeal of the decision. See 33 C.F.R.
§ 331.4. If the permit applicant or landowner wishes to appeal, they must file a request
for appeal, stating the reasons for the appeal, within sixty days of the notice from the
Corps. Id. § 331.6.
While EPA’s administrative appeal process and the administrative appeal processes of
many agencies provide for review and decision-making by a centralized body, usually at
the headquarters level, the Corps’ regulations provide for review and ultimate decisionmaking on appeals at the Division level. Id. § 331.9. Thus, when a permit applicant or
landowner appeals a decision of a Corps District, a Review Officer for the Division will
oversee the appeal. Id. § 331.3. The regulations do not require that the Corps provide
public notice of the appeal and do not provide for a formal hearing. Instead, the
regulations authorize an informal meeting or conference call for appeals of jurisdictional
determinations and an informal conference for appeals of permit decisions. Id. § 331.7.
Ultimately, the Division Engineer has limited authority to overturn the District’s decisions.
The Division Engineer can only overturn the District Engineer’s factual findings if they
are not supported by substantial evidence on the administrative record prepared by the
District. Id. § 331.9. In addition, the Division Engineer can only overturn other portions of
the decision below if they are “arbitrary, capricious, an abuse of discretion, ..., or plainly
contrary to a requirement of law, regulation, an Executive Order, or officially promulgated
Corps policy guidance.” Id. § 331.9(b). The Division Engineer must issue a final decision
in writing, id., and should normally make the decision within 90 days after the permit
applicant or landowner begins the appeal process. Id. § 331.8.
The Corps’ regulations provide that decisions on appeals are “only applicable to the
instant appeal and [have] no other precedential effect.” Id. § 331.7(g). Nevertheless, each
of the Divisions that is involved in Section 404 permitting makes those decisions available

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on a website for the Division. The following table provides links for the Divisions.
Great Lakes and Ohio River

Mississippi Valley

North Atlantic

Northwestern

Pacific Ocean

South Atlantic

South Pacific

Southwestern

Questions and Comments
1.

Preliminary jurisdictional determinations of the Corps cannot be administratively
appealed. Neither can permit denials without prejudice, cease and desist orders
issued by the Corps, delays in processing of Corps permits, and many other Corps
actions. Why do you think that the Corps did not provide for administrative appeals
of a broader range of actions? Similarly, why did the Corps establish the appeals
process for permit decisions and jurisdictional determinations in separate
rulemakings? See 65 Fed. Reg. 16,486 (March 28, 2000); 64 Fed. Reg. 11,708
(March 9, 1999).

2.

Third parties: Only permit applicants and landowners can file administrative
appeals of Corps actions. While federal rules for intervention may provide
opportunities for third parties to become involved in judicial challenges to Corps
actions, those rules do not apply to administrative proceedings. Instead, the
Corps regulations do not provide any procedure for third parties to seek to be
involved in the appeal process and only provide limited authority for the Review
Officer to invite appropriate third parties to participate informally in the
proceedings. See 33 C.F.R. § 331.7(e)(3).

3.

Volume: When the Corps issued the initial notice of proposed rulemaking for the
administrative appeals program, it anticipated that the program would consume
significant resources because there would be a high volume of appeals. See 60
Fed. Reg. 37,280, 37,283 (July 19, 1995). However, fewer than 1% of individual
permit and jurisdictional determinations are appealed. See Kim D. Connolly, The
Corps Administrative Appeal Process, in Wetlands Law and Policy: Understanding
Section 404 361 (American Bar Association, Section on Environment, Energy and
Resources 2005).

4.

Issue Exhaustion: To the extent that the Corps’ regulations require persons to
challenge the agency’s decisions administratively before challenging the decisions
in court, see 33 C.F.R. § 331.12, general administrative law principles require
challengers to alert the agency to their specific positions and contentions in the
administrative appeal “in order to allow the agency to give the issue meaningful
consideration” or face dismissal of those challenges in court for failure to exhaust
administrative remedies. See, e.g., Forest Guardians v. United States Forest
Service, 641 F.3d 423 (10th Cir. 2011).
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Hypotheticals
In which of the following cases could the challenger pursue an administrative appeal?
1. Juan Lagares would like to challenge the preliminary jurisdictional determination that the
Corps issued because the Corps concluded that the wetlands on his property may be “waters
of the United States.”
2. Phyllis Jones would like to challenge the approved jurisdictional determination that the
Corps issued to her neighbor, Juan Lagares, because the Corps ultimately concluded that
the wetlands on his property were not “waters of the United States.”
3. Rollie Wright planned to build a dock on his property and indicated to the Corps that he
planned to construct the dock in accordance with a regional general permit issued by the
local Corps district. The local Corps district informed Wright that the construction was not
authorized by the general permit, and he would like to challenge that decision.
4. Rollie Wright applied to the Corps for an individual Section 404 permit to authorize
construction of his dock, but the State refused to issue a Section 401 certification.
Accordingly, the Corps denied Wright’s permit application without prejudice. Wright would like
to challenge that decision.
5. The Shea Development Corporation applied to the Corps for an individual Section 404
permit to authorize construction of a golf course. The Corps issued the permit with a condition
that Shea restore or enhance 50 acres of wetlands in the watershed in which the development
will take place or purchase mitigation credits to restore or enhance 50 acres of wetlands in
that watershed. Shea would like to challenge the mitigation condition in the permit.

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Research Problems
Although the Corps’ administrative appeal decisions are not available on Westlaw or Lexis, the
Corps’ Divisions post the decisions on their websites, as noted above. Please answer the
following questions based on the information provided on the agency’s websites.
1. Your client was denied a Section 404 permit for development in Cherry Hill, New Jersey and
you are considering an administrative appeal. Between 2001 and 2013, how frequently did the
Corps Division that will hear your appeal find that an appeal of a permit denial or proffered
permit had merit?
2. Your client wants to challenge an approved jurisdictional determination for property that she
owns in Galveston, Texas, as she believes that the ponds on her property are not “waters of
the United States.” You have heard that the Division that would hear your appeal overturned a
jurisdictional determination from your district with similar facts in 2012. Although the Corps’
administrative appeal decisions are not precedential, you are interested in examining that
decision. Please find that decision and identify the reasons that the Division concluded that the
landowner’s appeal had merit.
3. For decisions appealed in 2011, in the South Atlantic Division, from which District did most
of the meritorious appeals to permitting decisions originate? From which district did most of the
meritorious appeals to jurisdictional determinations originate? Between 2000 and 2012, when
permit applicants challenged a permit denial to the Division, how frequently did the challenge
ultimately result in a permit issuance by the Corps District?

B.

Judicial Review

1.

Reviewable Actions

The Clean Water Act includes a judicial review provision that authorizes review of many
EPA actions, but the provision does not explicitly apply to any of EPA’s actions regarding
the Section 404 program, and it does not apply to any actions of the Corps of Engineers.
See 33 U.S.C. § 1369. When the regulations adopted by EPA and the Corps to define
“waters of the United States” were challenged, the agencies argued that the judicial
review provision applied and required the challenges to be brought in the United States
Courts of Appeals, but the Supreme Court rejected that argument in National Association
of Manufacturers v. Department of Defense, 138 S. Ct. 617 (2018), holding that 33 U.S.C.
§ 1369 did not apply, and that challenges to the regulations should be brought in federal
district courts under the APA.

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The Act also includes a citizen suit provision, discussed later, that authorizes suits
against EPA if the agency fails to perform a non-discretionary duty. See 33 U.S.C. § 1365.
However, most of the lawsuits that might be brought against EPA regarding wetlands,
such as a challenge to regulations implementing Section 404, approval or denial of state
program assumption, exercise of a Section 404 veto, or an enforcement order, involve
the exercise of discretion by the agency, rather than a failure to perform a nondiscretionary duty. The citizen suit provision is even less helpful with regard to
challenging actions of the Corps, as the statute only explicitly authorizes suits against “the
Administrator” (EPA), and not the Corps. While the Corps takes some actions regarding
wetlands pursuant to its Rivers and Harbors Act authority, that statute also does not have
a provision authorizing judicial review of the Corps’ actions. The only provision in either
statute that expressly authorizes judicial review of an action by EPA or the Corps is a
provision, discussed later, that authorizes review of administrative penalties imposed by
EPA. See 33 U.S.C. § 1319(g)(8).
Consequently, persons seeking judicial review of actions of the Corps or EPA regarding
wetlands usually must rely on the Administrative Procedures Act (APA). The APA
provides that a “final agency action for which there is no other adequate remedy in a court
..[is] subject to judicial review”, see 5 U.S.C. § 704, and “[a] person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review thereof.” See 5 U.S.C. § 702.
Significantly, the APA defines “agency action” to include a “failure to act.” See 5 U.S.C.
§ 551(13). The APA waives the government’s sovereign immunity to the extent that the
challenger is seeking declaratory or injunctive relief. See 5 U.S.C. § 702. While the APA
does not grant jurisdiction to any court to hear the challenges that it makes reviewable,
litigants can usually rely on 28 U.S.C. § 1331 (the general federal question jurisdiction
statute) or other general jurisdictional statutes to establish jurisdiction for their lawsuit.
The general federal question jurisdiction statute provides “[t]he district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.” Id.
Thus, persons who can demonstrate standing to sue, as discussed below, will generally
be able to challenge actions of EPA or the Corps regarding wetlands in federal district
court as long as the action is a final agency action. In general, the Supreme Court has
held that for an action to be final, it “must mark the ‘consummation’ of the agency’s
decisionmaking process” (not be of a tentative or interlocutory nature) and “must be one
by which ‘rights or obligations have been determined’ or from which ‘legal consequences
will flow.” See Bennett v. Spear, 520 U.S. 154,178 (1997).
a.

Permitting Decisions

One might assume that a permit applicant could challenge the Corps’ denial of a

360

Section 404 permit with prejudice or any unwanted conditions included in a Section
404 permit issued by the Corps as a final agency action under the APA, but the Corps’
administrative appeals regulations require permit applicants to appeal those decisions
administratively before suing in court. See 33 C.F.R. § 331.12. If the Corps affirms the
denial of the permit or affirms the inclusion of the unwanted conditions when it makes a
decision on the administrative appeal, the permit applicant can challenge those decisions
in court at that time.
Persons other than the permit applicant who want to challenge the Corps’ decision to
issue a permit, deny a permit, or include conditions in the permit have no obligation to
pursue any administrative appeal process before suing in court because they have no
right to appeal in the administrative process. However, if they challenge the Corps’
decision to issue or deny a permit and the permit applicant is pursuing, or could still
pursue, an administrative appeal, a court will likely conclude that the challenger cannot
bring their lawsuit until the administrative process has concluded, because the agency’s
decision is not “the ‘consummation’ of the agency’s decision-making process” and is not
a final agency action. See 33 C.F.R. § 331.10 (identifying the final decision of the Corps
in the event of an administrative appeal).
b.

Jurisdictional Determinations

For jurisdictional determinations, a preliminary jurisdictional determination (a decision
that there may be waters of the United States on a parcel of land) is likely not subject to
judicial review because it is tentative and subject to further review and modification within
the agency. See 33 C.F.R. § 331.2. An approved jurisdictional determination (a
decision that waters of the United States exist or do not exist on a parcel of land and
outlining the extent of the jurisdictional waters) can be appealed administratively, and, for
many years, EPA and the Corps argued that an approved jurisdictional determination that
confirms the presence of “waters of the United States” on property was not a final agency
action that could be challenged in court. Instead, they argued that persons could only
challenge those decisions in court after they applied for a permit and the Corps or EPA
made a decision on the permit. Their position was endorsed by the Fifth Circuit and the
Ninth Circuit Courts of Appeals. See Belle Corp., L.L.C. v. U.S. Army Corps of Engineers,
761 F.3d 383 (5th Cir. 2014), Fairbanks North Star Borough v. U.S. Army Corps of
Engineers, 543 F.3d 586 (9th Cir. 2008). The agencies did not, however, resist judicial
review of an approved jurisdictional determination that found that property did not
contain “waters of the United States.” In those cases, the government’s determination is
not tentative and, in essence, authorizes the landowner to move ahead with development
projects without seeking a Section 404 permit. The landowner is unlikely to challenge that
decision, but neighbors, competitors, interest groups and other third parties may
challenge the decision. See Golden Gate Audubon Society v. United States Army Corps
of Engineers, 717 F. Supp. 1417 (N.D. Cal. 1988).

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While EPA and the Corps argued that approved jurisdictional determinations that confirm
the presence of “waters on the United States” could not be challenged in court, in 2016,
the Supreme Court held, in United States Army Corps of Engineers v. Hawkes Co., et al.,
136 S. Ct. 1807 (2016), that all approved jurisdictional determinations are “final agency
actions” that can be reviewed under the APA. Several factors influenced the Court in its
decision. Significantly, the Corps’ regulations define approved jurisdictional
determinations as “final agency action”, see 33 C.F.R. § 320.1(a)(6), and the
determinations are binding on both the Corps and EPA for five years. See EPA,
Memorandum of Agreement: Exemptions Under Section 404(F) of the Clean Water Act
§ VI-A (1989). Applying the Supreme Court’s two part test for determining whether an
action is a final agency action, the Hawkes Court first held that the agency action
“mark[ed] the consummation of the agency’s decisionmaking process .. [and was] not of
a merely tentative or interlocutory nature” because the Corps conceded that approved
jurisdictional determinations met that requirement. 136 S. Ct. at 1813-1814. The Court
also concluded that approved jurisdictional determinations met the second part of the test
– that the agency action must “be one by which rights or obligations have been
determined, or from which legal consequences will flow.” Id. at 1813. The Court reasoned
that an approved jurisdictional determination that finds that property does not contain
waters of the United States has legal consequences for landowners because the
determination binds the agencies for five years and creates a safe harbor from
enforcement actions for the landowner for that period. Id. at 1814. Similarly, the Court
reasoned that an approved jurisdictional determination that finds that property contains
waters of the United States has legal consequences for the landowner because it denies
the landowner the safe harbor from enforcement actions. Id. at 1815.
In addition to arguing that approved jurisdictional determinations were not “final agency
actions”, the Corps argued that they should not be reviewable under the APA because
the APA only authorizes review of final agency action if there are not other adequate
alternatives to APA review in court. Id. The Corps argued that landowners could obtain
review of the Corps’ determination either by “discharg[ing] fill material without a permit,
risking an EPA enforcement action during which they can argue that no permit was
required, or apply[ing] for a permit and seek[ing] judicial review if dissatisfied with the
results.” Id. The Court, however, concluded that neither alternative was adequate. First,
the Court indicated, “we have long held [that] parties need not await enforcement
proceedings before challenging final agency action where such proceedings carry the risk
of ‘serious criminal and civil penalties.’” Id. Regarding the Corps suggestion that
landowners apply for a permit and challenge the agency’s permit decision, the Corps
noted that “the permitting process can be arduous, expensive and long” and would not
alter the finality of the approved jurisdictional determination or affect its suitability for
judicial review. Id. at 1815-1816.

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In light of the Court’s decision, the Corps issued a Regulatory Guidance Letter that
confirms that approved jurisdictional determinations can be challenged in court. See U.S.
Army Corps of Engineers, Jurisdictional Determinations, Regulatory Guidance Letter 1601 (Oct. 2016). Despite the Supreme Court’s decision and the agency’s change in policy,
there has not been a significant increase in the number of judicial challenges to approved
jurisdictional determinations by the Corps. See Amena H. Saiyid, Challenges to Corps
Waters Findings Still a Trickle After Ruling, 48 Env. Reporter 355 (Feb. 24, 2017).
c.

Enforcement actions and other agency actions

Regarding other permitting decisions, when the Corps or EPA determines that an activity
doesn’t qualify for a general permit or a permit exemption, the agencies argue that the
developer must apply for an individual permit and can only challenge the general permit
or exemption determination judicially as part of a challenge to the agencies’ ultimate
decision on the permit application. In Avella v. U.S. Army Corps of Engineers, 916 F.2d
721 (11th Cir. 1990), the Eleventh Circuit affirmed a district court’s finding that the Corps’
determination that a developer’s activity was not authorized by a nationwide permit was
not a final agency action because the agency’s decision did not have a binding legal effect
on the developer. If, however, the government determines that an activity qualifies for a
general permit or a permit exemption, the decision can generally be challenged in court
at that time, since the government’s decisionmaking process is complete and has a
similar binding legal effect as the issuance of an individual permit. See Orleans Audubon
Society v. Lee, 742 F.2d 901 (5th Cir. 1984).
There are many actions that EPA and the Corps take in administering Section 404 of the
Clean Water Act other than issuing or denying permits and making jurisdictional
determinations. However, for all of those other actions, the road to the courthouse door
is the same as for the permitting and jurisdictional decisions. The agencies’ actions are
reviewable if they are final agency actions. Although the cases are fact-sensitive, this
means that regulations adopted by the Corps or EPA will frequently be subject to APA
challenge as final agency actions, since they are legally binding and often have direct
legal effect on challengers, while guidance documents and policy statements will not be
subject to review, since they are not legally binding and don’t have a direct legal effect.
EPA’s exercise of its Section 404(c) authority represents the consummation of the
agency’s procedures and has the same legal effect on a landowner as the denial of a
Section 404 permit, so it will generally be judicially reviewable.
In the enforcement context, for many years, EPA and the Corps argued that cease and
desist orders and administrative enforcement orders issued by the agencies could not be
challenged because they were not final agency action and because the statute implicitly
precluded review of the orders. Several courts agreed with the agencies until the
Supreme Court issued the following decision.

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Resources for the Case

Sackett v. Environmental Protection
Agency
566 U.S. 120 (2012)
JUSTICE SCALIA delivered the opinion of the
Court.

Unedited opinion (From Justia)
Google Map of all of the cases in the coursebook
Oral Argument audio (from the Oyez Project)
EPA Compliance Order at issue
Administrative Record
EPA Guidance Post-Sackett
Local media article re: the Sackett case

We consider whether Michael and Chantell
Sackett may bring a civil action under the
Administrative Procedure Act * * * to challenge the issuance by the Environmental
Protection Agency (EPA) of an administrative compliance order under § 309 of the Clean
Water Act, 33 U.S.C. § 1319. The order asserts that the Sacketts’ property is subject to
the Act, and that they have violated its provisions by placing fill material on the property;
and on this basis it directs them immediately to restore the property pursuant to an EPA
work plan.
I
The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any
person” * * * without a permit, into the “navigable waters,”* * * which the Act defines as
“the waters of the United States” * * * . If the EPA determines that any person is in
violation of this restriction, the Act directs the agency either to issue a compliance order
or to initiate a civil enforcement action. § 1319(a)(3). When the EPA prevails in a civil
action, the Act provides for “a civil penalty not to exceed [$37,500] per day for each
violation.” * * * § 1319(d). And according to the Government, when the EPA prevails
against any person who has been issued a compliance order but has failed to comply,
that amount is increased to $75,000—up to $37,500 for the statutory violation and up to
an additional $37,500 for violating the compliance order.
The particulars of this case flow from a dispute about the scope of “the navigable waters”
subject to this enforcement regime. Today we consider only whether the dispute may be
brought to court by challenging the compliance order—we do not resolve the dispute on
the merits. * * *
The Sacketts * * * own a 2/3-acre residential lot in Bonner County, Idaho. Their property
lies just north of Priest Lake, but is separated from the lake by several lots containing
permanent structures. In preparation for constructing a house, the Sacketts filled in part
of their lot with dirt and rock. Some months later, they received from the EPA a compliance
order. The order contained a number of “Findings and Conclusions,” including the
following:

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“1.4 [The Sacketts’ property] contains wetlands within the meaning of 33 C.F.R.
§ 328.4(8)(b); the wetlands meet the criteria for jurisdictional wetlands in the 1987
‘Federal Manual for Identifying and Delineating Jurisdictional Wetlands.’
“1.5 The Site’s wetlands are adjacent to Priest Lake within the meaning of 33
C.F.R. § 328.4(8)(c). Priest Lake is a ‘navigable water’ within the meaning of
section 502(7) of the Act, 33 U.S.C. § 1362(7), and ‘waters of the United States’
within the meaning of 40 C.F.R. § 232.2.
“1.6 In April and May, 2007, at times more fully known to [the Sacketts, they] and/or
persons acting on their behalf discharged fill material into wetlands at the Site.
[They] filled approximately one half acre. . . . . .
“1.9 By causing such fill material to enter waters of the United States, [the Sacketts]
have engaged, and are continuing to engage, in the ‘discharge of pollutants’ from
a point source within the meaning of sections 301 and 502(12) of the Act, 33 U.S.C.
§§ 1311 and 1362(12).. . . . .
“1.11 [The Sacketts’] discharge of pollutants into waters of the United States at the
Site without [a] permit constitutes a violation of section 301 of the Act, 33 U.S.C.
§ 1311.” App. 19–20.
On the basis of these findings and conclusions, the order directs the Sacketts, among
other things, “immediately [to] undertake activities to restore the Site in accordance with
[an EPA-created] Restoration Work Plan” and to “pro- vide and/or obtain access to the
Site . . . [and] access to all records and documentation related to the conditions at the
Site . . . to EPA employees and/or their designated representatives.” Id., at 21–22, ¶¶2.1,
2.7.
The Sacketts, who do not believe that their property is subject to the Act, asked the EPA
for a hearing, but that request was denied. They then brought this action in the United
States District Court for the District of Idaho, seeking declaratory and injunctive relief.
Their complaint contended that the EPA’s issuance of the compliance order was “arbitrary
[and] capricious” under the Administrative Procedure Act (APA) * * * and that it deprived
them of “life, liberty, or property, without due process of law,” in violation of the Fifth
Amendment. The District Court dismissed the claims for want of subject- matter
jurisdiction, and the United States Court of Appeals for the Ninth Circuit affirmed * * * . It
concluded that the Act “preclude[s] pre-enforcement judicial review of compliance orders,”
* * * and that such preclusion does not violate the Fifth Amendment’s due process
guarantee * * * . We granted certiorari. * * *

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II
The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review
of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C.
§ 704. We consider first whether the compliance order is final agency action. There is no
doubt it is agency action, which the APA defines as including even a “failure to act.”
§§ 551(13), 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our
opinions establish. Through the order, the EPA “ ‘determined’ ” “ ‘rights or obligations.’ ”
Bennett v. Spear, 520 U.S. 154, 178 (1997) (quoting Port of Boston Marine Terminal
Assn. v. Re- deriaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). By reason of the
order, the Sacketts have the legal obligation to “restore” their property according to an
agency-approved Restoration Work Plan, and must give the EPA access to their property
and to “records and documentation related to the conditions at the Site.” App. 22, ¶2.7.
Also, “‘legal consequences . . . flow’ ” from issuance of the order. Bennett, supra, at 178
(quoting Marine Terminal, supra, at 71). For one, according to the Government’s current
litigating position, the order exposes the Sacketts to double penalties in a future
enforcement proceeding.2 It also severely limits the Sacketts’ ability to obtain a permit
for their fill from the Army Corps of Engineers * * *. The Corps’ regulations provide that,
once the EPA has issued a compliance order with respect to certain property, the Corps
will not process a permit application for that property unless doing so “is clearly
appropriate.” 33 C.F.R. § 326.3(e)(1)(iv) (2011).3
The issuance of the compliance order also marks the “ ‘consummation’ ” of the agency’s
decisionmaking process. Bennett, supra, at 178 (quoting Chicago & Southern Air Lines,
Inc. v. Waterman S. S. Corp., 333 U.S.103, 113 (1948)). As the Sacketts learned when
they unsuccessfully sought a hearing, the “Findings and Conclusions” that the compliance
order contained were not subject to further agency review. The Government resists this
conclusion, pointing to a portion of the order that invited the Sacketts to “engage in
informal discussion of the terms and requirements” of the order with the EPA and to inform
the agency of “any allegations [t]herein which [they] believe[d] to be inaccurate.” App. 22–
23, ¶2.11. But that confers no entitlement to further agency review. The mere possibility
that an agency might reconsider in light of “informal discussion” and invited contentions
of inaccuracy does not suffice to make an otherwise final agency action nonfinal.
2

We do not decide today that the Government’s position is correct, but assume the
consequences of the order to be what the Government asserts.
3

The regulation provides this consequence for “enforcement litigation that has been
initiated by other Federal . . . regulatory agencies.” 33 C.F.R. § 326.3(e)(1)(iv) (2011).
The Government acknowledges, however, that EPA’s issuance of a compliance order is
considered by the Corps to fall within the provision. * * * Here again, we take the
Government at its word without affirming that it represents a proper interpretation of the
regulation.
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The APA’s judicial review provision also requires that the person seeking APA review of
final agency action have “no other adequate remedy in a court,” 5 U.S.C. § 704. In Clean
Water Act enforcement cases, judicial review ordinarily comes by way of a civil action
brought by the EPA under 33 U.S.C.§ 1319. But the Sacketts cannot initiate that process,
and each day they wait for the agency to drop the hammer, they accrue, by the
Government’s telling, an additional $75,000 in potential liability. The other possible route
to judicial review—applying to the Corps of Engineers for a permit and then filing suit
under the APA if a permit is denied—will not serve either. The remedy for denial of action
that might be sought from one agency does not ordinarily provide an “adequate remedy”
for action already taken by another agency. The Government, to its credit, does not
seriously contend that other available remedies alone foreclose review under § 704.
Instead, the Government relies on § 701(a)(1) of the APA, which excludes APA review
“to the extent that [other] statutes preclude judicial review.” The Clean Water Act, it says,
is such a statute.
III
Nothing in the Clean Water Act expressly precludes judicial review under the APA or
otherwise. But in determining “[w]hether and to what extent a particular statute precludes
judicial review,” we do not look “only [to] its express language.” Block v. Community
Nutrition Institute, 467 U.S. 340, 345 (1984). The APA, we have said, creates a
“presumption favoring judicial review of administrative action,” but as with most
presumptions, this one “may be overcome by inferences of intent drawn from the statutory
scheme as a whole.” Id., at 349. The Government offers several reasons why the statutory
scheme of the Clean Water Act precludes review.
The Government first points to 33 U.S.C. § 1319(a)(3), which provides that, when the
EPA “finds that any person is in violation” of certain portions of the Act, the agency “shall
issue an order requiring such person to comply with [the Act], or . . . shall bring a civil
action [to enforce the Act].” The Government argues that, because Congress gave the
EPA the choice between a judicial proceeding and an administrative action, it would
undermine the Act to allow judicial review of the latter. But that argument rests on the
question-begging premise that the relevant difference between a compliance order and
an enforcement proceeding is that only the latter is subject to judicial review. There are
eminently sound reasons other than insulation from judicial review why compliance orders
are useful. The Government itself suggests that they “provid[e] a means of notifying
recipients of potential violations and quickly resolving the issues through voluntary
compliance.” * * * It is entirely consistent with this function to allow judicial review when
the recipient does not choose “voluntary compliance.” The Act does not guarantee the
EPA that issuing a compliance order will always be the most effective choice.

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The Government also notes that compliance orders are not self-executing, but must be
enforced by the agency in a plenary judicial action. It suggests that Congress therefore
viewed a compliance order “as a step in the deliberative process[,] . . . rather than as a
coercive sanction that itself must be subject to judicial review.” * * * But the APA provides
for judicial review of all final agency actions, not just those that impose a self-executing
sanction. And it is hard for the Government to defend its claim that the issuance of the
compliance order was just “a step in the deliberative process” when the agency rejected
the Sacketts’ attempt to obtain a hearing and when the next step will either be taken by
the Sacketts (if they comply with the order) or will involve judicial, not administrative,
deliberation (if the EPA brings an enforcement action). As the text (and indeed the very
name) of the compliance order makes clear, the EPA’s “deliberation” over whether the
Sacketts are in violation of the Act is at an end; the agency may still have to deliberate
over whether it is confident enough about this conclusion to initiate litigation, but that is a
separate subject.
The Government further urges us to consider that Congress expressly provided for
prompt judicial review, on the administrative record, when the EPA assesses
administrative penalties after a hearing, see § 1319(g)(8), but did not expressly provide
for review of compliance orders. But if the express provision of judicial review in one
section of a long and complicated statute were alone enough to over- come the APA’s
presumption of reviewability for all final agency action, it would not be much of a
presumption at all.
***
Finally, the Government notes that Congress passed the Clean Water Act in large part to
respond to the inefficiency of then-existing remedies for water pollution. Compliance
orders, as noted above, can obtain quick remediation through voluntary compliance. The
Government warns that the EPA is less likely to use the orders if they are subject to
judicial review. That may be true—but it will be true for all agency actions subjected to
judicial review. The APA’s presumption of judicial review is a repudiation of the principle
that efficiency of regulation conquers all. And there is no reason to think that the Clean
Water Act was uniquely designed to enable the strong-arming of regulated parties into
“voluntary compliance” without the opportunity for judicial review—even judicial review of
the question whether the regulated party is within the EPA’s jurisdiction. Compliance
orders will remain an effective means of securing prompt voluntary compliance in those
many cases where there is no substantial basis to question their validity.
***
We conclude that the compliance order in this case is final agency action for which there
is no adequate remedy other than APA review, and that the Clean Water Act does not

368

preclude that review. We therefore reverse the judgment of the Court of Appeals and
remand the case for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE GINSBURG, concurring.
Faced with an EPA administrative compliance order threatening tens of thousands of
dollars in civil penalties per day, the Sacketts sued “to contest the jurisdictional bases for
the order.” * * * “As a logical prerequisite to the issuance of the challenged compliance
order,” the Sacketts contend, “EPA had to determine that it has regulatory authority over
[our] property.” * * * The Court holds that the Sacketts may immediately litigate their
jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on
that question. Whether the Sacketts could challenge not only the EPA’s authority to
regulate their land under the Clean Water Act, but also, at this pre-enforcement stage,
the terms and conditions of the compliance order, is a question today’s opinion does not
reach out to resolve. Not raised by the Sacketts here, the question remains open for
another day and case. On that understanding, I join the Court’s opinion.
Questions and Comments
1.

Final agency action: Would the Court have reached the same conclusion
regarding the finality of EPA’s compliance order if the agency did not take the
position that it could double the penalties that it could recover in a judicial
enforcement action by issuing a compliance order? Does the Court believe that
EPA is likely to modify a compliance order based on informal discussions with the
alleged violator after the order is issued? If EPA routinely made such changes,
should that affect the Court’s conclusion?

2.

Preclusion of review: As noted in the Sackett opinion, while the APA includes a
presumption that final agency actions are reviewable, it includes an exception to
reviewability if statutes preclude review. See 5 U.S.C. § 701(a)(1). As evidenced
by the Court’s opinion in Sackett, the presumption in favor of reviewability is very
strong. Although it can be rebutted either expressly or implicitly, the Sackett Court
was unwilling to find that the Clean Water Act precluded judicial review of
compliance orders despite arguments based on the structure and purposes of the
statute.

3.

Terms of the Order: Did the Court hold that EPA’s order was invalid and that the
agency lacked jurisdiction over the wetlands at issue? If the Sacketts want to
challenge the restoration plan required by the order, or EPA’s requirement that
they provide records to the agency, does the Court’s opinion authorize them to

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raise those challenges in court? Litigation between the Sacketts and EPA
continued for at least the next decade. See, e.g. Sackett v. EPA, No. 19-35469,
(9th Cir. May 30, 2019).
4.

Jurisdictional determinations: Sackett involved judicial review of an EPA
compliance order. Would the rationale of the decision also apply to a preliminary
or approved jurisdictional determination? Would they constitute final agency
action, based on the Court’s analysis, or can they be distinguished?

5.

Due Process: Does the Court resolve the Sackett’s due process claim? If so,
how? If not, why not? What sort of a hearing is required by due process? Could a
hearing before an administrative tribunal suffice? Could a hearing after an initial
decision by the government suffice?

6.

Impact of decision: How might the Court’s decision affect how frequently EPA
issues administrative compliance orders to address Section 404 violations, as
opposed to using other enforcement tools? How might it impact the documentation
that EPA prepares in support of compliance orders? (Note, though, that EPA
prepared a detailed administrative record supporting its determination that the
Sacketts were discharging fill material into wetlands that were regulated under the
Clean Water Act.)
Is the Court’s decision likely to accelerate resolution of disputes over Clean Water
Act jurisdiction over waters of the United States or will it severely hamper
government enforcement efforts? Are there less stringent alternatives to
administrative compliance orders? Would they be subject to judicial review? At oral
argument, Justice Scalia predicted, “They’ll just issue warnings is what they’ll do.”
See Craig N. Johnston, Sackett: The Road Forward, 42 Envtl. L. 993 (2012); Albert
Ferlo & Tom Lindley, Practical Impacts of the Sackett Decision, 42 Envtl. L. 1009
(2012); Richard E. Glaze Jr., A Detailed Look at the Effects of Sackett v. EPA on
Administrative Enforcement Orders, 42 Envtl. L. Rep. News & Analysis 11030
(Nov. 2012).

7.

Waters of the United States: In a concurring opinion that is not reproduced
above, Justice Alito chastised Congress and EPA for failing to provide concrete
rules outlining the boundaries of federal jurisdiction over “waters of the United
States” and called for Congress to clarify the reach of the statute.

8.

Non-enforcement: The Sackett case involved an APA challenge to an EPA
enforcement order. However, can a person who is upset because EPA or the
Corps are not bringing an enforcement action against someone bring suit against
the agencies based on the APA, since agency action can include a failure to act?

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See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821 (1985). Could they
bring a suit against EPA or the Corps for non-enforcement under the citizen suit
provisions of the Clean Water Act, alleging that the agencies failed to perform a
non-discretionary duty? See Sierra Club v. U.S. Environmental Protection Agency,
268 F.3d 898 (9th Cir. 2001).

Hypotheticals
1. Walt Pinkman recently observed Jessie White dumping several tons of dirt onto wetlands
on her property to build a new tennis court. He immediately contacted EPA, and the agency
sent an investigator to her house to determine whether she was violating the Clean Water
Act. After conducting an inspection of the property, the EPA investigator issued Jessie a
“notice of violation” under Section 309(a) of the Clean Water Act, which indicated that she
was discharging fill material into “waters of the United States” and that she could potentially
be fined and ordered to restore the wetlands to their natural state. The notice was not,
however, an administrative compliance order, and did not require her to take any immediate
action. Can Jessie challenge the notice in court?
2. Shortly after EPA issued the notice of violation, a representative of the Corps of Engineers
visited the property and issued a preliminary jurisdictional determination, finding that the
wetlands on White’s property may be “waters of the United States”. Can Jessie challenge
the jurisdictional determination in court?
3. When Jessie did not cease her wetland filling activities, EPA issued an administrative
compliance order, notifying her that she was discharging fill material into “waters of the
United States” and ordering her to restore the wetlands pursuant to a restoration plan that
was included in the order. Jessie will not challenge the agency’s determination that the
wetlands on her property are “waters of the United States”, but she would like to challenge
the terms of the restoration plan. Can Jessie challenge the terms of the restoration plan in
court?
4. Jessie ultimately applies for a Section 404 permit to authorize the construction of her
tennis court, but the Corps of Engineers denies the permit application on the grounds that
there are practicable alternatives to the project that would have less adverse impacts on the
aquatic environment. Jessie does not appeal the permit denial administratively within the
period in which appeals can be brought. Can Jessie challenge the permit denial in court if
she can no longer challenge it administratively?

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2.

Limits on Judicial Review

Even if a litigant can demonstrate that the action of the EPA or the Corps that they wish
to challenge is a final agency action, they may face some additional obstacles to bringing
their lawsuit.
A primary roadblock for some plaintiffs may be the standing requirement. In order to
bring suit, a plaintiff must demonstrate that (1) they have suffered, or imminently will
suffer, an injury that was caused by the action that they are challenging and which can
be redressed by the relief that they are seeking in the lawsuit; and (2) the interest that
they are suing to protect is arguably within the zone of interests sought to be protected
by the statute under which they are suing. See Bennett v. Spear, 520 U.S. 154 (1997).
The first requirement, the “injury in fact” requirement, derives from Article III of the
Constitution, which limits the judicial role to resolving “cases or controversies.” For many
years, the Supreme Court referred to the second requirement, the “zone of interests”
requirement, as a prudential limit imposed on plaintiffs by courts based on concerns for a
limited judicial role in a democratic society. Id. However, in Lexmark International, Inc. v.
Static Control Components, Inc., 134 S. Ct. 1377, 1387 (2014), the Court held that the
“zone of interests” analysis should not be identified as a standing test, prudential or
otherwise, and that the test is not a jurisdictional test. According to the Court, the “zone
of interests” analysis still applies in cases involving challenges to agency actions, but the
analysis focuses on the statutory interpretation question of whether Congress authorized
the plaintiff to bring the cause of action against the agency.” Id.
When a permit applicant is challenging a permit denial, the conditions included in a permit,
or an EPA veto of a permit, or a landowner is challenging a determination that their
property contains waters of the United States, the challenger should have little trouble
demonstrating that they have standing to sue under that test. Normally, the permit denial
or the conditions in the permit will cause the applicant or landowner some economic injury
that can be avoided if the permit is granted or the conditions are removed or altered.
Similarly, if a landowner or permittee has been issued an enforcement order and can
demonstrate that the government’s action is final agency action, they should usually be
able to demonstrate that they meet the requirements for standing. The order will likely
cause them some economic injury or other injury, which could be avoided if the order
were rescinded. However, when neighboring landowners, competitors, or other third
parties challenge the government’s decisions to issue permits, cover activities through
general permits, exempt activities from permitting requirements, or find that property does
not contain waters of the United States, it may be more difficult to demonstrate the
standing requirements. See, e.g. Save Ourselves v. U.S. Army Corps of Engineers, 958
F.2d 659 (5th Cir. 1992). The plaintiffs may not yet have suffered any injury and may have
a difficult time proving that they will be imminently injured in a concrete way by the
government action or that the relief that they are seeking will redress that injury. Similarly,

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when regulated entities, interest groups, or other persons challenge regulations issued
by the Corps or EPA, standing may be an obstacle to suit.
In addition to the standing limitation, a plaintiff may find that their lawsuit against the EPA
or the Corps will be dismissed if it is not brought in a timely manner. While the Clean
Water Act does not have a judicial review provision that establishes time limits for actions
against EPA and the Corps relating to the Section 404 program, the general six year
statute of limitations for civil actions against the United States applies to those lawsuits.
See 28 U.S.C. § 2401(a). That statute runs from the time the cause of action first arose.
Id. There are more restrictive time limits for citizen suits against the government for failure
to perform a non-discretionary duty, but those time limits will be discussed in the citizen
suit section of this chapter, since there are few, if any, lawsuits that could be brought
against EPA or the Corps for failure to perform a non-discretionary duty with regard to the
Section 404 program. There are also more restrictive time limits that apply to appeals of
administrative penalty orders, but they will be discussed in the enforcement section of this
chapter.
Even if a plaintiff brings their lawsuit within the six year statute of limitations, a court may
dismiss the action as untimely if the claims in the lawsuit are moot. For instance, in Vieux
Carre Property Owners v. Brown, 948 F.2d 1436 (5th Cir. 1991), the Fifth Circuit held that
a litigant’s claim that the Corps did not comply with the National Environmental Policy Act
when deciding to issue a section 404 permit was moot because the retail complex that
was authorized by the permit was substantially completed at the time of the lawsuit.
Similarly, in Sierra Club v. U.S. Army Corps of Engineers, 277 Fed. Appx. 170 (3d Cir.
2008), the Third Circuit held that a litigant’s challenge to the Corps’ issuance of a Section
404 permit was moot when the plaintiff brought the challenge after 98% of the wetlands
at issue were filled, structures had been built for the project and mitigation had been
completed.
3

Standards of Review and Remedies

Since judicial challenges to actions of the Corps and EPA regarding wetlands will be
brought pursuant to APA authority, the judicial review provisions of the APA apply in those
actions. In general, courts review the decisions of EPA and the Corps based on the record
prepared by the agencies to support their decisions and the justifications articulated by
the agencies for those decisions, and do not hold evidentiary hearings or gather new
evidence. See Preserve Endangered Areas of Cobb’s History v. U.S. Army Corps of
Engineers, 87 F.3d 1242, 1246-1247 (11th Cir. 1996); Friends of the Earth v. Hintz, 800
F.2d 822, 828-829 (9th Cir. 1986); Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897,
907 (5th Cir. 1983).

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When reviewing the record prepared by the agencies, courts do not generally engage in
de novo review. Instead, they review the agencies’ decisions under very deferential
standards. The judicial review provisions of the APA indicate that a reviewing court shall
“(2) hold unlawful and set aside agency action, findings, and conclusions found
to be
(A)
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(B)
contrary to constitutional right, power, privilege, or immunity;
(C)
in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(D)
without observance of procedure required by law;
(E)
unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the record
of an agency hearing provided by statute; or
(F)
unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.”
See 5 U.S.C. § 706.
As noted in earlier chapters, when a court reviews an agency’s interpretation of a statute
adopted through legislative rulemaking or in some other contexts, the court will apply the
Chevron analysis. See Chapter 4, supra. If the court is not reviewing an agency’s
interpretation of a statute, it will normally review the agency’s decision under the arbitrary
and capricious standard, another deferential standard, and uphold the agency’s decision
as long as it is reasonable. As the Supreme Court has indicated, the arbitrary and
capricious standard of review “is a narrow one” and the “court is not empowered to
substitute its judgment for that of the agency.” See Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 415 (1971).
If the reviewing court ultimately decides that an action taken by the Corps or EPA is
arbitrary and capricious, the court will usually set aside the decision and remand the
matter to the agency to reconsider. On remand, the agency can resolve the matter
differently than it did initially, but it is also free to make the same decision as it made
initially, as long as it addresses the court’s concerns and can support the decision as
reasonable. See Securities and Exchange Commission v. Chenery, 332 U.S. 194 (1947).
Questions and Comments
1.

Beyond the record: While APA review of most actions of the Corps and EPA is
limited to the administrative record prepared by the agency, in rare situations, a
court may take evidence if the record is incomplete or if there is a strong showing
of bad faith or improper behavior.

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2.

Intervention: Since the judicial review provisions of the Clean Water Act do not
apply to review of actions of the Corps or EPA regarding Section 404, intervention
in lawsuits against the Corps and EPA is governed by the normal federal rules of
civil procedure. See Fed. R. Civ. P. 24.

II.

Enforcement
Resources

EPA Citizen Violation Report Form
The Corps of Engineers and EPA share
EPA IG report re: Enforcement
enforcement authority over Section 404
EPA Wetland Enforcement Web Page
violations under the Clean Water Act. In
EPA Region 9 Wetlands Enforcement Web Page
1989, the agencies entered into a
EPA Enforcement Web Page
Memorandum
of
Agreement
to
coordinate their enforcement activities.
See U.S. Environmental Protection
Agency & U.S. Army Corps of Engineers, Memorandum of Agreement: Federal
Enforcement for the Section 404 Program of the Clean Water Act (Jan. 19, 1989).
Pursuant to the agreement, in most cases, the Corps conducts initial investigations of
Section 404 violations, making a determination of whether waters of the United States
are present on the property where a discharge occurred and whether there has been a
violation of Section 404. Id. While the Corps conducts most initial investigations, the
memorandum provides that EPA will normally be the lead enforcement agency for
discharges where the violator does not have a permit, while the Corps will be the lead
enforcement agency for discharges that violate a Corps permit. Id.

As noted in Chapter 4, supra, the prohibition on filling wetlands derives from Section 301
of the Clean Water Act, which, when read in conjunction with Section 502 (the definition
section), prohibits the addition of a pollutant into navigable waters from a point source
by a person unless the person is adding the pollutant in accordance with a Section 404
permit or a Section 402 permit, and is complying with other requirements of the statute
listed in Section 301. See 33 U.S.C. § 1311. Section 404 permits are issued to authorize
the discharge of dredged or fill material into navigable waters. See 33 U.S.C. § 1344.
Thus, if the Corps or EPA bring an enforcement action against someone for filling
wetlands without a Section 404 permit or in violation of a Section 404 permit, they have
the burden of proving that there was an addition of a pollutant into navigable waters
from a point source by a person (to demonstrate a violation of section 301) and that there
was a discharge of dredged or fill material (to demonstrate that a Section 404 permit,
rather than a Section 402 permit, was required.) If the enforcement action is based on
violation of the terms or conditions of a Section 404 permit, the government has the
burden of proving that the defendant violated the permit terms or conditions. If the
defendant argues that a Section 404 permit is not required because the activity that
caused the alleged violation was exempt from the permit requirement or because it was

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covered by a general permit, the defendant has the burden of proof.
Except in criminal enforcement proceedings, in making out the prima facie case, the
government does not have to prove that the defendant acted with a specific mental state.
The government merely has to prove that the defendant took the action that was
prohibited by the Clean Water Act. See Kelly v. United States, 203 F.3d 519 (7th Cir.
2000); Stoddard v. Western Carolina Regional Sewer Authority, 784 F.2d 1200 (4th Cir.
1986). The statute defines “person” broadly to include an “individual, corporation,
partnership, association, State, municipality, commission, or political subdivision of a
State, or any interstate body.” See 33 U.S.C. § 1362(5). EPA’s regulations clarify that a
Federal agency, its agents and employees, and an “agent or employee” of any entity listed
in the statutory definition can also be liable as a “person”. See 40 C.F.R. § 232.2.
The enforcement process begins when EPA or the Corps learn about a potential section
404 violation. The Corps encourages members of the public to report violations, see
33 C.F.R. § 326.3(a), so the government may become aware of violations from citizen
complaints. In addition, the Corps works with state, local and other federal agencies to
watch for potential violations, so the Corps or one its partners may discover a violation
through its surveillance program. Id. The Corps relies on those tools to identify violations
of permit conditions as well as unpermitted discharges, because, unlike other
environmental statutes, the Clean Water Act does not require Section 404 permittees to
monitor their activities or file periodic reports with the Corps. EPA has limited field
resources and relies on reports from citizens or referrals from the Corps or other federal
agencies to identify potential violations. However, a 2009 report of EPA’s Office of
Inspector General found that the agency’s passive and reactive approach to wetlands
enforcement was not effective in identifying violations. See U.S. Environmental Protection
Agency, Office of Inspector General, 10-P-0009, EPA Needs a Better Strategy to Identify
Violations of Section 404 of the Clean Water Act (Oct. 6, 2009). Consequently, the
Inspector General recommended that the agency implement “a § 404 enforcement
strategy that includes increased communication/coordination with enforcement partners,
a system to track repeat and flagrant violators, performance measures, and crosstraining” and the agency agreed to make those changes. Id. at 6.
Once the Corps or EPA discover a potential violation, they can choose from a broad range
of administrative and judicial enforcement options, including both civil and criminal
sanctions. The Clean Water Act gives the agencies broad discretion to choose the
appropriate enforcement tool and does not mandate a specific type of enforcement action
for any particular violation.

376

A.

Administrative Enforcement

Resources

1.

Administrative Compliance
Orders and Cease and Desist
Letters

Corps Enforcement Regulations
EPA Enforcement Regulations
EPA Region 9 Enforcement Web Page - incl.
compliance orders and consent decrees
Example of an EPA compliance order

Most violations will be resolved
administratively, rather than in court. The least stringent enforcement tools available to
the agencies are notices of violation and administrative orders. The Clean Water Act
authorizes EPA to issue orders (administrative compliance orders) that require
persons to comply with the Clean Water Act or with Section 404 permits that are issued
by States, see 33 U.S.C. § 1319(a)(3), and authorizes the Corps to issue orders (cease
and desist letters) that require persons to comply with the terms and conditions of
Section 404 permits that the Corps issued. See 33 U.S.C. § 1344(s). If a permittee has
already completed the fill activity that violates a permit, the Corps will usually issue a
notice of violation and request for remedial action, instead of a cease and desist letter.
See 33 C.F.R. § 326.3(c). When EPA issues an administrative compliance order or the
Corps issues a cease and desist letter, the agencies provide a copy of the order or letter
to the state where the violation occurred and any other states affected by the violation.
See 33 U.S.C. §§ 1319(a)(4); 1344(s)(2).
If the person who receives an order does not comply with the order, the agencies can
only enforce the order by bringing an action in court, id. §§ 1319(b); 1344(s)(3). As the
Sackett Court noted, in a judicial action to enforce an administrative order, the
government will seek to recover penalties for the violation of the order, as well as for the
violation that led to the issuance of the order.
Although the Clean Water Act does not explicitly authorize persons who receive
administrative compliance orders or cease and desist letters to challenge them in court,
the Sackett Court held that the recipient of an EPA administrative compliance order could
challenge the agency’s jurisdictional determination in that order in court. The Court’s
decision did not, however, address cease and desist letters of the Corps.
2.

Administrative Penalty Orders

Both EPA and the Corps have authority
to impose administrative penalties on
violators. Section 309(g) authorizes
both agencies to assess civil penalties

Resources
EPA’s Administrative Penalty Regulations
Corps’ Administrative Penalty Regulations
EPA’s Civil Penalty Policy
EPA’s Environmental Appeals Board

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on persons who fill wetlands without a permit (or otherwise violate the Clean Water Act)
or who violate the terms or conditions of a permit, although, as noted above, the Corps
generally takes the lead on violations of permits issued by the Corps. See 33 U.S.C.
§ 1319(g)(1). The statute establishes two categories of administrative penalties, based
on the severity of the violation. Class I penalties may not exceed $11,000 per violation
or $32,500 overall, and Class II penalties may not exceed $11,000 per day of violation
or $157,500 overall. See 33 U.S.C. § 1319(g)(2); 40 C.F.R. § 19.4. (Note: The original
maximum penalty amounts in the statute were lower, and were increased by the Debt
Collection Improvement Act, 31 U.S.C. § 3701).
For Class I penalties, the statute requires the government to provide notice and an
opportunity for a hearing before assessing a penalty. See 33 U.S.C. § 1319(g)(2)(A). The
hearing is an informal hearing, though, and the statute only requires the government to
provide the potential recipient of the order “a reasonable opportunity to be heard and to
present evidence.” Id.
For Class II penalties, the statute requires the government to provide notice and the
opportunity for a formal hearing following the procedures of the APA (5 U.S.C. § 554)
before assessing a penalty. See 33 U.S.C. § 1319(g)(2)(B).
In determining the amount of the penalties, the statute directs the agencies to “take into
account the nature, circumstances, extent and gravity of the violation, or violations, and,
with respect to the violator, ability to pay, any prior history of such violations, the degree
of culpability, economic benefit or savings (if any) resulting from the violation, and such
other matters as justice may require.” Id. § 1319(g)(3).
For both types of penalties, the Corps or EPA must also provide public notice of the
proposed penalty order and an opportunity to comment on the order before issuing the
order. See 33 U.S.C. § 1319(g)(4). Unlike administrative compliance orders, the statute
explicitly provides that persons who are assessed an administrative penalty or persons
who commented on the administrative penalty order can challenge the order in court, as
long as they challenge the order within 30 days. Id. § 1319(g)(8). Class I penalties must
be challenged in federal district court, while Class II penalties must be challenged in the
federal appellate courts. Id. The general rules regarding judicial review, discussed above
(i.e. review limited to the record, application of the arbitrary and capricious standard),
apply to review of these orders. However, if the Class II penalties are issued after a formal
hearing, the appellate court reviews the agency’s factual findings under the substantial
evidence test. See 5 U.S.C. § 706(2)(E).
Before challenging an administrative penalty order in court, recipients of the orders must
exhaust their administrative remedies. There is no administrative appeal process for
Class I penalty orders, so recipients can challenge those orders immediately. However,

378

recipients of a Class II penalty order must appeal the order administratively before
challenging the order in court. See 40 C.F.R. § 22.27(d).
If the Corps or EPA issues an administrative penalty order and the recipient does not
comply with the order, the Clean Water Act authorizes the government to bring an action
in federal district court to recover the penalties. See 33 U.S.C. § 1319(g)(9). Significantly,
in that action, “the validity, amount and appropriateness of ... [the] penalty shall not be
subject to review.” Id.
Questions and Comments
1.

Jury Trial: When courts review administrative penalty orders, they generally limit
review of the order to the record created by the agency and review the decision
based on the arbitrary and capricious standard. In Sasser v. Administrator, 990
F.2d 127 (4th Cir. 1993), the Fourth Circuit rejected an argument that such a
procedure violated the order recipient’s 7th Amendment right to a jury trial. The
court concluded that the case involved a dispute over “statutory public rights,” to
which the 7th Amendment did not apply.

2.

Civil Penalty Policy: While the statute outlines criteria for EPA and the Corps to
consider in determining the amount of administrative penalties, EPA has also
developed a civil penalty policy to establish uniformity and consistency in
calculating administrative and judicial civil penalties for Clean Water Act Section
404 violations. See U.S. Environmental Protection Agency, Issuance of Revised
CWA Section 404 Settlement Penalty Policy (Dec. 21, 2001). The policy identifies
the minimum amounts that the agency should recover in settlements, but
acknowledges that the agency will seek and attempt to recover more if settlement
is not possible. The policy creates the following formula for determining the
minimum civil penalty:
Penalty = Economic Benefit + (Preliminary Gravity Amount +/- Gravity
Adjustment Factors) - Litigation Considerations - Ability to Pay - Mitigation
Credit for SEPs.
Id. at 8. Under the formula, EPA is primarily concerned with ensuring that the
violator does not receive any economic benefit by violating the statute. The agency
calculates the economic benefit using a computer model (BEN). Id. at 9. In
calculating and adjusting the “gravity” of the violation, the agency assigns
numerical rankings to factors such as harm to human health or welfare, extent of
impacts, severity of impacts, duration of violation, degree of culpability, compliance
history of the violator, and the need for deterrence, among others. Id. at 9-15. After
determining an appropriate penalty based on the economic benefit and gravity

379

factors, the agency may reduce the penalty that it is seeking based on litigation
considerations (i.e. weaknesses in the case), the ability of the violator to pay, and
the violator’s agreement to implement a supplemental environmental project
(SEP). SEPs are “environmentally beneficial projects that a violator agrees to
undertake as part of a settlement, but is not otherwise legally obligated to perform.”
Id. at 20. Thus, EPA may be willing to reduce the penalty it assesses a violator
when the violator agrees to take an environmentally beneficial action that the
agency could not have forced them to take otherwise. During the Trump
Administration, the Department of Justice issued a memo prohibiting agencies
from including SEPs in settlements, but that decision was reversed by the Biden
Administration shortly after President Biden took office.
3.

After the fact permits: In addition to the administrative options outlined above,
when the Corps discovers an illegal discharge of dredged or fill material, it can
issue an “after the fact” permit to authorize the discharge, which protects the
violator from further enforcement action. See 33 C.F.R. § 326.3(e). As noted in
Chapter 6, supra, the illegal discharger must follow the normal permit application
procedures, the Corps processes the application through the normal procedures
for individual permits, and EPA retains the right to veto the permit. The Corps
regulations provide, though, that the Corps will not accept an after the fact permit
application when the district engineer determines that legal action is appropriate,
or where federal, state or local regulatory agencies have initiated litigation against
the applicant. Id.

B.

Judicial Enforcement - Civil and
Criminal

Resources

While the Corps and EPA will address most
violations through administrative processes,
they also have judicial enforcement tools, and
they do not have to pursue administrative
remedies before seeking judicial relief.
Similarly, they can pursue judicial relief even
though
they
have
already
pursued
administrative remedies.

EPA Region 9 Wetlands Enforcement
Example of a Wetlands Enforcement Consent
Decree
DOJ ENRD Proposed Consent Decrees (not
just wetlands)
EPA - Summary of Case Settlements (not
just wetlands)

The Clean Water Act authorizes the government to seek a broad range of civil and
criminal penalties for violations of the statute, although the Department of Justice brings
the lawsuits on behalf of the agencies. While EPA’s regulations do not indicate precisely
the violations that would motivate the agency to refer a case to the Department of Justice
for judicial enforcement, the Corps’ regulations suggest that appropriate cases for referral
involve violations that are “willful, repeated, flagrant, or of substantial impact.” See 33

380

C.F.R. § 326.5. In addition, in 1990, EPA and the Corps issued guidance regarding judicial
enforcement priorities. See U.S. Army Corps of Engineers and U.S. Environmental
Protection Agency, Guidance on Judicial Civil and Criminal Enforcement Priorities (Dec.
1990). As part of that guidance, the agencies suggested that enforcement personnel
should consider the following factors when deciding whether to refer a case for civil
enforcement: (1) quality of the waters affected; (2) impact of the discharge; (3) culpability
of the violator; (4) deterrence value; (5) benefit from the violation; and (6) equitable
considerations. Id.
1.

Civil Enforcement

The Clean Water Act authorizes EPA and the Corps to seek civil penalties and injunctive
relief for any violations of the Clean Water Act, the terms and conditions of any Section
404 permit, or any administrative orders issued under the Act. See 33 U.S.C. §§ 1319(b),
(d); 1344(s). The lawsuits must be brought in federal district court in the district in which
the defendant is located, resides, or does business, and the government must notify the
state where the discharge occurs when the government files the suit. Id. The government
will normally refrain from filing suit if a state is pursuing an enforcement action, but the
statute does not preclude federal enforcement simply because a state is also bringing an
enforcement action.
In an enforcement action under the Clean Water Act, courts can award penalties up to
$37,500 per day per violation. Id. Although the statute originally authorized a maximum
penalty of $25,000 per day per violation, the amount has been increased over time in
accordance with the Federal Civil Penalties Inflation Adjustment Act, 28 U.S.C. § 2461,
as amended by the Debt Collection Improvement Act, 31 U.S.C. § 3701. See 40 C.F.R.
§ 19.4. The government takes the position, and several courts have agreed, that each
day that dredged or fill material remains in place constitutes a separate day of violation.
See, e.g. United States v. Cumberland Farms of Conn., Inc., 647 F. Supp. 1166, 1183
(D. Mass. 1986), aff’d 826 F.2d 1151 (1st Cir. 1987), cert denied 484 U.S. 1061 (1988);
United States v. Tull, 615 F. Supp. 610, 626 (E.D. Va. 1983), aff’d 769 F.2d 182 (4th Cir.
1985), rev’d on other grounds 481 U.S. 412 (1987). Under this “continuing violation”
theory, therefore, if a defendant illegally filled wetlands, the defendant would be subject
to $37,500 penalties not only for each day during which the filling occurred, but also for
each day during which the fill remained in place.
Just as the statute outlines factors for the agencies to consider in determining an
appropriate administrative penalty amount, the statute identifies a similar list of factors
that courts should consider in determining the amount of civil penalties. The statute
directs courts to consider the following factors in setting civil penalties: “the seriousness
of the violation or violations, the economic benefit (if any) resulting from the violation, any
history of such violations, any good-faith efforts to comply with the applicable

381

requirements, the economic impact of the penalty on the violator, and such other matters
as justice may require.” See 33 U.S.C. §§ 1319(d); 1344(s). Since the factors outlined in
the statute are similar for administrative and judicial penalties, the Department of Justice
relies on the same EPA civil penalty policy in judicial settlement negotiations as the
agency relies on in administrative settlement negotiations. Ultimately, the penalties that
are recovered are paid into the general fund of the United States Treasury, and are not
paid to EPA, the Corps or the Department of Justice.
In addition to civil penalties, the statute authorizes courts to award declaratory relief and
temporary and permanent injunctive relief. See 33 U.S.C. §§ 1319(b), (d); 1344(s).
Pursuant to that authority, courts frequently order defendants to cease any discharging
activities, remove dredged or fill material, and to restore sites where dredged or fill
material has been discharged to their condition before the filling activity occurred. If
restoration is not possible, the government will normally seek appropriate mitigation.
The statute does not include a statute of limitations, so courts apply the general five year
limit on federal civil penalty actions to Clean Water Act civil penalty suits. See 28 U.S.C.
§ 2462. However, courts have held that the statute does not begin to run until the
government becomes aware of the violation, see United States v. Hobbs, 736 F. Supp.
1406 (E.D. Va. 1990), aff’d 947 F.2d 941 (4th Cir. 1991), cert. denied 504 U.S. 940 (1992),
and the statute does not apply to suits for injunctive relief, so courts can order defendants
to cease prohibited activities, remove dredged or fill material, and restore wetlands, even
though the five year statutory time period for a civil penalty action has expired. See United
States v. Banks, 115 F.3d 916, 919 (11th Cir. 1997).
Although most cases settle before trial, if a Clean Water Act enforcement action reaches
the trial stage, the Supreme Court has held that defendants have a constitutional right to
a jury trial in those actions. See Tull v. United States, 481 U.S. 412 (1987). However, the
Tull Court only held that defendants have a right to a jury trial on the issue of liability. Id.
As a result, the judge, rather than the jury, determines the appropriate remedy, regardless
of whether the remedy is a civil penalty or injunctive relief. In addition, if the government
is only seeking injunctive relief, there is no constitutional right to a jury trial, even on
liability, since the Seventh Amendment right is limited to actions at common law. See U.S.
Const., Amend. VII.
As noted above, in an enforcement action, the government has the burden of proving all
of the elements of a Section 301/404 violation, while the defendant has the burden of
proving any affirmative defenses. The statute does not identify specific affirmative
defenses, but a defendant might argue that their activity is exempt from the Section 404
permit requirement or is covered by a general permit. In addition, to the extent that a
permittee is complying with a Section 404 permit, including a general permit, the Clean
Water Act provides that the permittee is complying with Sections 301, 307 and 403 of the

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Act, for purposes of federal enforcement actions and citizen suits. See 33 U.S.C.
§ 1344(p). To the extent that EPA or the Corps would like to rely on guidance documents
to assist them in prosecuting wetlands violations, a January, 2018 Justice Department
memorandum makes that difficult, as it provides that the Department will not bring
enforcement actions in cases where guidance documents are used as the basis for
proving violations of law. See Amena H. Saiyid, Justice Department Memo Muddies
Enforcement of Water Permits, 49 Env. Rep. 250 (Feb. 16. 2018).
A defendant cannot avoid an enforcement action by arguing that the application of the
Clean Water Act constitutes a taking of their property. See United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121 (1985). While the defendant can bring a separate
action for a taking of property, see Chapter 11, infra, the claim is not a defense to an
enforcement action.
Research Problems
While DOJ makes pending consent decrees available online, once the decrees are finalized, it is more
difficult to search for them online. Consent decrees involving EPA are available on Lexis and on EPA’s
website, as noted above. Consent decrees involving the Corps are not available on Lexis, Westlaw,
or the agency’s website. Without using Lexis, please answer the following questions:
1. In 2012, the U.S. and defendants resolved the case of United States v. Snowden, involving illegal
fill of wetlands at Falls Creek Farm in Sterling, Connecticut, through a consent decree. What was the
amount of civil penalties that the defendants agreed to pay? What are the amounts of stipulated
penalties that the parties agreed upon in the event that the defendants fail to timely fulfill requirements
of the consent decree?
2. Pursuant to the consent decree in United States v. Savoy Senior Housing Corporation, what is the
total amount of money that the defendants agreed to pay as civil penalties and to fund the injunctive
relief required by the decree? Can representatives of the United States enter the defendants’ property
to oversee the restoration activities under the consent decree?

2.

Criminal Enforcement

Resources
The final, and most severe, enforcement
Search EPA Database of Criminal
option that the government can pursue is
Prosecutions
EPA Criminal Enforcement Web Page
criminal prosecution. The Clean Water
Act authorizes criminal prosecution for
negligent violations, knowing violations,
and knowing endangerment (placing
someone in danger of death or injury). See 33 U.S.C. §§ 1319(c)(1)-(3). For purposes of
criminal sanctions, the statute defines “person” to include “responsible corporate officers”.
Id. § 1319(c)(6). The government normally refrains from bringing criminal enforcement
383

actions unless the defendant’s action caused significant environmental harm, the
defendant continued to engage in illegal conduct after repeated warnings from the Corps
or EPA, or the defendant will receive significant economic benefit from continuing to
violate the statute. Conversely, when a person self-reports a violation, discovered a
violation through an environmental audit, or implements compliance programs to improve
compliance after discovering a violation, the government will be less likely to pursue a
criminal action against the person. See U.S. Department of Justice, Environment and
Natural Resources Division, Factors in Decisions on Criminal Prosecutions for
Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure
Efforts by the Violator (July 1, 1991). The government generally prefers to prosecute high
visibility cases, to maximize the deterrent effect of the prosecution.
Courts can impose fines between $2,500 and $25,000 per day per violation and
imprisonment up to one year for negligent violations of the Clean Water Act. Id.
§ 1319(c)(1). For knowing violations, courts can impose fines that are twice as high and
imprisonment for up to three years. Id. § 1319(c)(2). Finally, for knowing endangerment,
courts can impose fines up to $250,000 per violation (or $1,000,000 per violation for
organizations) and imprisonment for up to fifteen years. Id. § 1319(c)(3). In all cases, the
maximum penalties are doubled for violations committed after the defendant has been
previously convicted. See 33 U.S.C. §§ 1319(c)(1)-(3). According to EPA’s website, the
most significant criminal wetlands case involved the development of a subdivision that
impacted 260 acres. In that case, United States v. Lucas, 516 F.3d 316 (5th Cir. 2008),
the court fined Robert Lucas Jr, his daughter and his engineer $15,000 each, assessed
restitution of $1,407,400 for each defendant, and fined Lucas’ two companies $5,300,000.
See U.S. Environmental Protection Agency, Section 404 Enforcement.
The following case examines when courts will consider a violation to be a knowing
violation under the Clean Water Act.

384

United States v. Wilson
133 F.3d 251 (4th Cir. 1997)

Resources for the Case
Unedited opinion (From Justia)
Google Map of all the cases in the coursebook

NIEMEYER, Circuit Judge, writing for the
court on parts I, II, V and VI:
The defendants in this case were convicted of felony violations of the Clean Water Act for
knowingly discharging fill and excavated material into wetlands of the United States
without a permit. On this appeal they challenge: (1) the validity of federal regulations
purporting to regulate activities that "could affect" interstate commerce; * * * [and] (4) the
district court's interpretation of the mens rea required for a felony conviction under the Act
***
Because we conclude that 33 C.F.R. § 328.3(a)(3) (1993) (defining waters of the United
States to include those waters whose degradation "could affect" interstate commerce) is
unauthorized by the Clean Water Act as limited by the Commerce Clause and therefore
is invalid, and that the district court erred in failing to require mens rea with respect to
each element of an offense defined by the Act, we reverse and remand for a new trial.
In February 1996, after a seven-week trial, a jury convicted James J. Wilson, Interstate
General Co., L.P., and St. Charles Associates, L.P., on four felony counts charging them
with knowingly discharging fill material and excavated dirt into wetlands on four separate
parcels without a permit, in violation of the Clean Water Act, 33 U.S.C. §§ 1319(c)(2)(A)
& 1311(a). The district court sentenced Wilson to 21 months imprisonment and 1 year
supervised release and fined him $1 million. It fined the other two defendants $3 million
and placed them on 5 years probation. The court also ordered the defendants to
implement a wetlands restoration and mitigation plan proposed by the government.
Wilson, a land developer with more than 30 years of experience, was the chief executive
officer and chairman of the board of directors of Interstate General. He was personally
responsible for various decisions relevant to the defendants' convictions in this case.
Interstate General was a publicly traded land development company with 340 employees,
2,000 shareholders, and assets of over $100 million. It was the general partner of St.
Charles Associates, a limited partnership that owned the land being developed within the
planned community of St. Charles, which lies between the Potomac River and the
Chesapeake Bay in Charles County, Maryland. The convictions involve discharges onto
four parcels that are part of St. Charles.
***
At trial, the government introduced evidence that during the period from 1988 to 1993,

385

the defendants attempted to drain at least three of the four parcels of land involved in this
case by digging ditches. The excavated dirt was deposited next to the ditches--a process
known as "sidecasting." The government also introduced evidence that the defendants
transported a substantial amount of fill dirt and gravel and deposited it on three of the
parcels; only one parcel involved sidecasting without the addition of fill. The government
presented evidence that all four of these parcels contained wetlands and that the
defendants failed to obtain permits from the Army Corps of Engineers * * * prior to making
efforts to drain and fill the parcels.
Although the parcels in question were not, because of neighboring development, located
in pristine wilderness areas, the government presented substantial evidence about the
physical characteristics which identified them as wetlands, including testimonial and
photographic evidence of significant standing water, reports of vegetation typical to
hydrologic soils, and infrared aerial photographs showing a pattern of stream courses
visible under the vegetation. Evidence also showed that the properties were identified as
containing wetlands on public documents including the National Wetlands Inventory Map
and topographical maps of Charles County and the State of Maryland. The government
demonstrated that water from these lands flowed in a drainage pattern through ditches,
intermittent streams, and creeks, ultimately joining the Potomac River, a tributary of the
Chesapeake Bay.
The government also produced evidence of the defendants' awareness of the physical
conditions of their land. The very development work underlying the present prosecution
involved efforts to improve the drainage of the areas to make building feasible. Substantial
fill was later added in an attempt to raise the ground level of the parcels. Some
construction work involved repeated reshoring efforts because of wetness-induced
ground shifting and collapse. Evidence was introduced that bids for work at one of the
parcels actually contained different price quotations for wet and dry work because of the
level of moisture on parts of the property. And witnesses gave testimony that despite the
attempts at drying the property through ditching and draining or through the pumping off
of standing water, and even after hundreds of truck loads of stone, gravel and other fill
had been added to three of the parcels, wetland-loving plants continued to sprout through
the fill.
Witnesses also testified at trial that a private consulting firm retained by the defendants
informed the defendants that its observations of conditions on the parcels led it to
conclude that the parcels contained wetlands. The firm recommended seeking permits
from the Army Corps of Engineers before beginning development. The defendants were
also contacted by Charles County zoning authorities concerned about the possible
presence of wetlands in the vicinity of the new construction projects. Finally, the
government presented evidence that even as the defendants complied with an Army
Corps of Engineers order to cease construction on one of the parcels and remove fill dirt

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that had already been added, they continued to develop the other parcels without notifying
the Corps or making an effort to ascertain whether a permit was necessary.
The defendants introduced contradictory evidence suggesting that whether the four
parcels were wetlands under the Clean Water Act was unclear. They offered evidence
which they claim showed that the Army Corps of Engineers was inconsistent in asserting
jurisdiction over the parcels in question, claiming that the Corps took action on only one
parcel, even though it had been aware for years of the ongoing development. Defendants
also introduced an internal Corps memorandum that stated that while the areas in the St.
Charles community have the "necessary parameters ... to be considered wetlands when
using the Corps Wetland Delineation Manual," "it is not clear to me that these areas can
be interpreted as 'waters of the United States' within the meaning or purview of Section
404." That memo suggested obtaining guidance from higher authority as to what
constitutes "waters of the United States." The defendants also introduced evidence
indicating their belief that they had legally drained three parcels prior to introducing fill,
and that no fill was discharged into the fourth which was being drained by the digging of
ditches.
Following 15 hours of deliberation, the jury convicted all defendants of the four felony
counts. Because of the felony convictions, the defendants were not convicted of four
misdemeanor counts for the "negligent" violations of the Clean Water Act involving the
same parcels.
***
V
The defendants * * * contend that the district court erred in instructing the jury about the
criminal intent, the "mens rea," required to prove a felony violation of the Clean Water
Act. They argue (1) that the statute requires a showing that they were aware of the
illegality of their conduct, and (2) that the required mens rea, however it is defined, must
accompany each element of the offense. They note that the district court's jury
instructions comported with neither requirement.
The district court charged the jury that the government must prove each of four elements
of the offense beyond a reasonable doubt:
First, that is the defendant knowingly ... discharged or caused to be discharged a
pollutant.
Second, that the pollutant was [dis]charged from a point source.

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Third, that the pollutant entered a water of the United States; and fourth, that the
discharge was unpermitted.
The court defined an act as "knowingly" done "if it is done voluntarily and intentionally and
not because of ignorance, mistake, accident or other innocent reason." For each felony
count, the court stated,
the government must prove that the defendants knew, one, that the areas which
are the subject of these discharges had the general characteristics of wetland; and,
two, the general nature of their acts. The government does not have to prove that
the defendants knew the actual legal status of wetlands or the actual legal status
of the materials discharged into the wetlands. The government does not have to
prove that the defendants knew that they were violating the law when they
committed their acts. (Emphasis added).
Finally, the court instructed on willful blindness, which it stated could stand in the place of
actual knowledge.
Determining the mens rea requirement of a felony violation of the Clean Water Act
requires us to make an interpretation based on "construction of the statute and ...
inference of the intent of Congress." * * * We thus begin our analysis by looking at the
language of 33 U.S.C. § 1319, as well as its place in the larger statutory structure.
Section 1319(c)(2)(A), making an illegal discharge of a pollutant a felony if accompanied
by the defined mens rea, provides: "Any person who knowingly violates section 1311 ...
shall be punished." (Emphasis added). Section 1311 makes unlawful "the discharge of
any pollutant" without a permit. And finally, § 1362 defines "discharge of a pollutant" to
include "any addition of any pollutant to navigable waters from any point source" and
defines "navigable waters" as "waters of the United States." * * * Within that statutory
structure, we must determine the nature of intent that the statute requires for each
element of the offense.
On a first reading of the clause, "any person who knowingly violates section 1311 shall
be punished," the order of words suggests that "knowingly" modifies "violates" so that the
clause imposes punishment only when one violates the statute with knowledge that he is
violating it, i.e. with knowledge of the illegality of his conduct. But the statute's structure,
the architecture of which includes a series of sections incorporating other sections, its
legislative history, and the body of Supreme Court jurisprudence addressing mens rea of
federal criminal statutes caution that our first reading may not so simply lead us to the
proper interpretation.
Our first concern is a pragmatic one engendered by the overall structure of the Clean

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Water Act. The conduct that is made criminal with the "knowingly violates" language
encompasses numerous elements from other substantive statutory sections. See 33
U.S.C. § 1319(c)(2)(A). Each of those substantive sections may also be enforced with
other civil and criminal penalties if the actions proscribed therein are performed with
different scienter. See generally 33 U.S.C. § 1319. If Congress intended that the
"knowing" mens rea accompany each element of the offense, as we have previously
assumed is the case, * * * the task of inserting the alternative mens rea requirements for
the multiple civil and criminal enforcement provisions within each substantive prohibition
would require confusingly repetitious drafting. A shorthand method of accomplishing the
same purpose thus would be to insert "knowingly" in a single place where the conduct is
made criminal, in this case, § 1319(c)(2)(A). See United States v. International Minerals
& Chemical Corp., 402 U.S. 558, 562 (1971) (the phrase "knowingly violates [applicable
regulations]" was "a shorthand designation for specific acts or omissions which violate
the act").
Our second and more profound problem with our first-blush interpretative proposal arises
from a recognition of two general common law principles regarding mens rea. First, in
Anglo-American jurisprudence, criminal offenses are ordinarily required to have a mens
rea. * * * This supposition is based on "the contention that an injury can amount to a crime
only when inflicted by intention." * * * Indeed, statutes requiring no mens rea are generally
disfavored. * * * But a second and deeply-rooted common law principle is that ignorance
of the law provides no defense to its violation. * * * Thus, while some level of
deliberateness is usually required to impose criminal punishment, it is also usually true
that the defendant need not appreciate the illegality of his conduct. Applying those
principles to a statute similar to the one before us, the Supreme Court in International
Minerals declined "to attribute to Congress the inaccurate view that [the] Act requires
proof of knowledge of the law, as well as the facts." * * * In that case, the statute--which
provided that whoever "knowingly violates any such regulation" shall be fined or
imprisoned--was held to be a "shorthand designation" for knowledge of the specific acts
or omissions which violate the Act. * * * When so viewed, the Court noted, "the Act ...
does not signal an exception to the rule that ignorance of the law is no excuse." * * * In
light of these background rules of common law, we may conclude that mens rea requires
not that a defendant know that his conduct was illegal, but only that he "know the facts
that make his conduct illegal," * * * unless Congress clearly specifies otherwise. And this
knowledge must generally be proven with respect to each element of the offense. * * *
Finally, our first-blush reading of the phrase "knowingly violates" is cast into doubt by the
legislative history, which suggests that Congress, by amending the statute in 1987,
intended to facilitate enforcement of the Clean Water Act and increase the impact of
sanctions by creating a separate felony provision for deliberate, as distinct from negligent,
activity. Before the amendment, the Act imposed a single set of criminal penalties for
"willful or negligent" violations. See 33 U.S.C. § 1319(d)(1) (1986). The 1987

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amendments, however, segregated the penalties for negligent violations, making them
misdemeanors, and added felony provisions for knowing violations. See 33 U.S.C.
§ 1319(c)(1)(A) ("negligent" violation) and § 1319(c)(2)(A) ("knowing" violation). Thus,
before 1987, the statute proscribed "willful or negligent" violations and after 1987 it
proscribed separate "knowing" and "negligent" violations. In changing from "willful" to
"knowing," we should assume that Congress intended to effect a change in meaning.
* * * Because "willful" generally connotes a conscious performance of bad acts with an
appreciation of their illegality, * * * we can conclude that Congress intended to provide a
different and lesser standard when it used the word "knowingly." If we construe the word
"knowingly" as requiring that the defendant must appreciate the illegality of his acts, we
obliterate its distinction from the willfulness.
Based upon these interpretative guides, then, we cannot conclude that Congress
intended to require the defendant to know that his conduct was illegal when it stated that
"Any person who knowingly violates [incorporated statutory sections] ... shall be
punished." The ready alternative interpretation is that Congress intended that the
defendant have knowledge of each of the elements constituting the proscribed conduct
even if he were unaware of their legal significance. This interpretation would not carry
with it the corollary that the defendant's ignorance of his conduct's illegality provides him
a defense, but would afford a defense for a mistake of fact. Thus, if a defendant thought
he was discharging water when he was in fact discharging gasoline, he would not be
guilty of knowingly violating the act which prohibits the discharge of pollutants. See United
States v. Ahmad, 101 F.3d 386, 393 (5th Cir.1996); see also International Minerals, 402
U.S. at 563-64 * * *
Accordingly, we hold that the Clean Water Act * * * requires the government to prove the
defendant's knowledge of facts meeting each essential element of the substantive
offense, * * * but need not prove that the defendant knew his conduct to be illegal * * * .
In light of our conclusion that the government need only prove the defendant's knowledge
of the facts meeting each essential element of the substantive offense and not the fact
that defendant knew his conduct to be illegal, in order to establish a felony violation of the
Clean Water Act, we hold that it must prove: (1) that the defendant knew that he was
discharging a substance, eliminating a prosecution for accidental discharges; (2) that the
defendant correctly identified the substance he was discharging, not mistaking it for a
different, unprohibited substance; (3) that the defendant knew the method or
instrumentality used to discharge the pollutants; (4) that the defendant knew the physical
characteristics of the property into which the pollutant was discharged that identify it as a
wetland, such as the presence of water and water-loving vegetation; (5) that the
defendant was aware of the facts establishing the required link between the wetland and
waters of the United States; and (6) that the defendant knew he did not have a permit.
This last requirement does not require the government to show that the defendant knew

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that permits were available or required. Rather, it, like the other requirements, preserves
the availability of a mistake of fact offense if the defendant has something he mistakenly
believed to be a permit to make the discharges for which he is being prosecuted.
While we thus reject the defendants' challenge to the district court's instructions based on
the contention that the government must prove awareness of the illegality of their conduct,
we agree that the instructions did not adequately impose on the government the burden
of proving knowledge with regard to each statutory element. For this reason, a new trial
is required.
Questions and Comments
1.

Compare the instructions given by the trial court regarding the prima facie case to
the instructions required by the appellate court. Do you understand the difference?

2.

Mistake of fact v. mistake of law: Note that the Court suggests that a mistake of
fact defense may still be available in a criminal prosecution for a wetlands violation,
even though a mistake of law defense is not. If the wetlands at issue were not
adjacent to a traditionally navigable water, could a defendant avoid criminal liability
by providing evidence that the defendant was not aware that the wetlands had any
connection to other waters of the United States? What if the defendant was aware
that the wetlands were adjacent to a non-navigable stream, but the defendant did
not know that the stream had a “significant nexus” to a traditionally navigable
water?

3.

Administrative orders and notice: The court notes that the defendants were
complying with an administrative order from the Corps for filling wetlands at the
same time that they continued to discharge fill material on other wetlands on the
property. One factor that may motivate the government to bring a criminal action
is a defendant’s violation of an administrative order. However, if the defendant in
Wilson was not violating the order, do you understand why the issuance of the
order is relevant to the question of whether the defendant was “knowingly” violating
the Clean Water Act?

4.

Standard of proof: Note that the district court required the government to prove
each element of the case beyond a reasonable doubt. In criminal prosecutions
under the Clean Water Act, all of the normal protections afforded to criminal
defendants apply.

5.

Other circuits: The Ninth Circuit interpreted the knowing requirement of the Clean
Water Act in a manner similar to the Wilson court in a case that did not involve
discharges into wetlands. See United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir.

391

1994). The Second Circuit adopted a similar reading of the statute, in another case
that didn’t involve wetlands, but extended liability to persons who deliberately and
consciously avoided knowledge of the facts surrounding a violation. See United
States v. Hopkins, 53 F.3d 533 (2d Cir. 1995).
6.

Press coverage of criminal enforcement: While EPA limits criminal enforcement
actions and tries to select high profile cases that will deter violators, criminal
wetlands prosecutions can lead to bad press for EPA, regardless of the nature of
the defendant’s actions. For instance, in the early 1990s, EPA brought a criminal
prosecution against John Pozgai, a landowner who bought wetlands at a reduced
price, knowing that they were wetlands, and who filled 4 acres of wetlands with
400 truckloads of fill, flooding his neighbors properties, while ignoring cease and
desist letters from the Corps, as well as a temporary restraining order from federal
district court. See Royal C. Gardner, Mitigation in Wetlands Law and Policy:
Understanding Section 404 170 (American Bar Association, Section on
Environment, Energy and Resources 2005). Despite his conduct, the local press
generally vilified the agency as jackbooted thugs unfairly prosecuting a Hungarian
immigrant and violating his private property rights. Id.

7.

Public involvement in settlement of enforcement actions: When DOJ settles
environmental enforcement cases and prepares a consent decree, the Department
provides public notice of the consent decree and allows the public to comment on
the decree for 30 days. See 28 C.F.R. § 50.7. Among other places, the proposed
consent decrees are available on the website for the Environment and natural
Resources Division of the Department. See U.S. Department of Justice,
Environment and Natural Resources Division, Welcome to ENRD. Depending on
the comments, the Department may decide to withdraw from the settlement or
proceed to file the order with the court. Id.

Interview
Stephen Samuels, an Assistant Section Chief in the Environmental
Defense Section of the Environment and Natural Resources Division
of the U.S. Department of Justice, explains how federal wetland
enforcement priorities are set. (YouTube)

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Hypotheticals
1. Oliver Douglas recently purchased 100 acres of farmland in Springfield, Iowa from Virgil
Haney. Haney was aware that there were several prairie pothole wetlands on the property and
he did not farm on those sections of the property. However, he did not ever mention anything
to Douglas about the wetlands. Douglas moved to Iowa from New York City and was unfamiliar
with farming or prairie potholes. At the time that he bought the property, there was no water
in the potholes and they did not look like wetlands to Douglas’ untrained eye. Although the
plants that were growing in the wetlands were wetland plants, Douglas did not recognize them
as such. Similarly, he did not know that the water marks on a few trees near the wetlands
were evidence of periodic inundation of the area. Since his wife, Lisa, was not pleased with
the size of the small farmhouse on the property, Douglas hired a construction company to
build an addition to the house. When the construction company dug a new basement and
foundation, Douglas directed the company to dump the dirt from the construction into several
depressional areas on the property (the prairie potholes) to level them out. If EPA, upon
learning about Douglas’ activities, brought a criminal action against Douglas for “knowingly”
violating Section 301 of the Clean Water Act, could he likely be held liable for criminal fines
and imprisonment?
2. Assume that there was no continuous surface or groundwater connection between the
prairie potholes in question 1 and any other traditionally navigable water, but that the potholes
provided flood protection and filtered pollutants out of water that eventually flowed into the
Springfield River, a traditionally navigable water. In addition, many tourists visited Springfield
each fall to observe migratory birds that relied on the potholes in the region as temporary
habitat during their migration. If Douglas was aware that the potholes were wetlands, but was
not aware of the connections between the wetlands and the Springfield River or the migratory
birds, and Douglas directed the construction company to dump the dirt into the potholes, could
he likely be held criminally liable for “knowingly” violating Section 301 of the Clean Water Act?
3. Assume that Douglas was aware that the potholes were wetlands and a representative of
the Corps of Engineers visited his property while he was building the house and told him that
he could not dump the dirt from the construction into the wetlands. If Douglas’ attorney
incorrectly informed him that the fill was authorized by a general permit that the Corps had
issued and Douglas relied on that information, could he likely be held criminally liable for
“knowingly” violating Section 301 of the Clean Water Act?

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Hypothetical
As outlined above, the Federal government has many enforcement options when a person fills
wetlands in violation of the Clean Water Act. The following hypothetical focuses on the choice of
an appropriate enforcement tool.
In March 2008, Wilbur Dunphy contacted the Corps of Engineers because he planned to purchase
property near Interstate 70 west of Columbia, Missouri to build a shopping center and he was
concerned that the construction might impact some wetlands on the property. Representatives of
the Corps visited the site and verbally told Dunphy that the wetlands on the property were not
connected, in any way, to jurisdictional waters, and were not “waters of the United States” that
were regulated under the Clean Water Act. Although there were many other parcels of land
available that did not have any wetlands on them, Dunphy preferred the parcel that the Corps
examined because it was located adjacent to an exit off the Interstate. If the wetlands on the parcel
were “waters of the United States,” it is unlikely that Dunphy would have been able to acquire a
permit to authorize the shopping center construction.
Based on the information that Dunphy received from the Corps, he bought the property and filled
50 acres of wetlands to build the shopping center. Six years later, a local citizens group
complained to EPA that the construction of the shopping center was contributing to pollution
problems in the nearby Missouri River, a traditionally navigable water. Although the wetlands that
were filled did not have a continuous surface connection to the Missouri River, a series of ditches,
gullies, and intermittent streams had connected the wetlands to the Missouri River. In fact, a few
years before Dunphy had contacted the Corps, and unbeknownst to the Corps, a Natural
Resource Conservation Service employee had examined the site and had collected data to
demonstrate that the wetlands decreased sedimentation, pollutants and flood waters to the
Missouri River. Before the citizens group contacted EPA, the agency was not aware that any filling
activity had taken place on Dunphy’s property. The citizens group believed that recent major floods
near Columbia would not have been as extreme if the wetlands had not been destroyed. The
citizens group also believes that the wetlands that were destroyed had provided habitat for several
different species of endangered amphibians, which were killed when the wetlands were converted.
At the same time that the citizens group complained to EPA about the filling activity, they
complained to the Corps. A representative of the Corps met with the citizens group and, after
reviewing the data collected by the Natural Resource Conservation Service employee, told the
members of the citizens group that it is often difficult, after the Rapanos decision, to demonstrate
that wetlands adjacent to non-navigable waters are “waters of the United States.” Nevertheless,
the representative of the Corps told the citizens group that she would explore enforcement options
with management at the District.
The shopping center is very profitable and is currently worth over $15 million. It is an economic
hub for the area and provides hundreds of jobs for local residents. It would be impossible to restore
the wetlands on the property at this time without tearing down major portions of the shopping
center. Which agency, if any, should pursue an enforcement action at this time? If the Corps or
EPA pursue an enforcement action, what relief should they seek? Should the agency pursue
administrative remedies, judicial civil remedies, or judicial criminal remedies? What are the
advantages and disadvantages of each option?

394

C.

Citizen Suits

Resources
Like many federal environmental statutes,
CWA citizen suit primer and model complaint
the Clean Water Act anticipates that federal
- Stack & Associates
or state governments will take the lead in
Citizens Guide to CWA Enforcement - Ohio
enforcing the law, but allows citizens to file
Environmental Council
lawsuits to enforce the law in the absence
Example of CWA citizen suit complaint of government enforcement. Thus, citizen
plaintiffs - Quad Cities Waterkeeper
suit authority serves multiple purposes. In
some cases, the threat of a citizen suit may
spur the government to take enforcement
action. In other cases, citizen suits fill the
enforcement gap when the government fails to take action against persons who violate
the Clean Water Act. The language of the citizen suit provision of the Clean Water Act is
reproduced below:

Except as provided in subsection (b) of this section * * * any citizen may commence
a civil action on his own behalf
(1) against any person (including (i) the United States, and (ii) any other
governmental instrumentality or agency to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be in violation of (A) an effluent
standard or limitation under this chapter or (B) an order issued by the
Administrator or a State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator
to perform any act or duty under this chapter which is not discretionary with the
Administrator
33 U.S.C. § 1365(a).
1.

Suits allowed

As is apparent from the language above, the statute authorizes citizen suits in two types
of situations: (1) suits against anyone who violates an effluent standard or limit or
administrative order regarding an effluent standard or limit; and (2) suits against EPA for
failing to perform a non-discretionary duty. As noted above, there are few mandatory
requirements for EPA in the Clean Water Act Section 404 program, so there are very few
citizen suits based on that authority. Most of the Clean Water Act wetlands citizen suits
are brought under Section 505(a)(1), 33 U.S.C. § 1365(a)(1), against persons who violate
395

effluent standards or limits or orders related to those standards or limits.
For purposes of the citizen suit provision, the Clean Water Act defines “effluent standard
or limitation” to include Section 401 certifications and actions that violate section 301(a)
of the Act, among other things. See 33 U.S.C. § 1365(f)(1),(5). Thus, citizens can sue
any persons who fill wetlands without a Section 404 permit, if one is required, since the
persons would be violating an effluent standard or limitation by violating Section 301(a).
While Section 505(a)(1) allows citizens to sue persons who fill wetlands without a permit,
it is not clear that the provision authorizes them to sue persons who have a Section 404
permit (including general permit) and who violate the terms or conditions of the
permit. The Clean Water Act explicitly defines “effluent standard or limitation” to include
a Section 402 (NPDES) permit or conditions in a Section 402 permit, but it does not
explicitly define the term to include Section 404 permits, so some courts have held that
citizens cannot sue persons who violate the terms or conditions of a Section 404 permit.
See Atchafalaya Basinkeeper, et al. v. Chustz, 682 F.3d 356 (5th Cir. 2012); Northwest
Environmental Defense Center v. U.S. Army Corps of Engineers, 118 F. Supp. 2d 1115
(D. Ore. 2000).
Since the statute limits citizen suits to situations where persons are alleged to be in
violation, citizens cannot sue persons who violated the Clean Water Act in the past, but
are no longer violating it at the time of the lawsuit. See Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Foundation, 484 U.S. 49, 64 (1987). The Supreme Court has
interpreted the “alleged to be in violation” language to limit citizen suit jurisdiction to
cases where the plaintiff can “make a good faith allegation of continuous or
intermittent violation” of an effluent standard or limit. Id. If the Clean Water Act violation
challenged is not continuing or reasonably likely to recur after the date that the lawsuit is
filed, courts will dismiss the citizen suit. Id. However, to the extent that litigants advance,
and courts are willing to embrace, the government’s theory that each day that fill material
remains in place constitutes a separate day of violation, plaintiffs should be able to avoid
the Gwaltney limit for cases where the illegal fill remains in place.
Section 505(a)(1) also clarifies that persons who can be sued for violating effluent
standards or limits include the United States, federal agencies, states and state agencies
(subject to limits imposed by the 11th Amendment). However, the remedies available in
those citizen suits are limited. Plaintiffs can only obtain injunctive relief and “coercive”
civil penalties (fines imposed to induce agencies to comply with injunctions or other
judicial orders designed to modify behavior prospectively) and not “punitive” civil
penalties, when suing the federal government for filling wetlands without a permit. See
Department of Energy v. Ohio, 503 U.S. 607 (1992) (interpreting the citizen suit provisions
of the Clean Water Act and the Resource Conservation and Recovery Act, but not
involving Section 404 violations). Further, the 11th Amendment likely prevents plaintiffs
from bringing citizen suits against states to recover civil penalties, see Seminole Tribe v.

396

Florida, 517 U.S. 44 (1996) (finding that Congress can only abrogate state immunity if
Congress unequivocally expresses its intent to do so and acts pursuant to authority of the
14th Amendment), but plaintiffs can probably bring citizen suits against state officials for
injunctive relief (i.e. cessation of filling activities or restoration of wetlands) when a state
or state agency is illegally filling wetlands. See Ex Parte Young, 209 U.S. 123 (1908);
Natural Resources Defense Council v. California Department of Transportation, 96 F.3d
420 (9th Cir. 1996).
2.

Jurisdiction, Venue and Relief available

The Clean Water Act authorizes citizens to file their lawsuits in federal district court. See
33 U.S.C. § 1365(a). When the plaintiff is alleging that the defendant is violating an
effluent standard or limitation or an order regarding an effluent standard or limitation, the
plaintiff must bring the suit in the district in which the source of the violation is located. Id.
§ 1365(c). The district courts can order persons violating effluent standards, limits, or
orders to comply with those requirements and can order the Administrator to perform nondiscretionary duties. Id. § 1365(a). In addition, the court can impose civil penalties on the
defendant (subject to the limits discussed above for federal and state defendants). Id. As
with government enforcement, though, the civil penalties are paid into the general fund of
the United States Treasury and are not paid to the plaintiffs. The statute does not
authorize the court to award any damages to plaintiffs, and there is no implied right of
action for damages, so plaintiffs must rely on common law theories to recover any
compensation for personal injury, property damage or similar injuries. See Middlesex
County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981).
The statute also authorizes the court to award litigation costs, including reasonable
attorneys fees and expert witness fees, to any prevailing or substantially prevailing
party whenever the court determines an award is appropriate. Id. § 1365(d). In order to
be a prevailing or substantially prevailing party, the party seeking costs must have
succeeded on a significant issue in the litigation. See Public Interest Research Group of
New Jersey, Inc. v. Windall, 51 F.3d 1179 (3d Cir. 1995) (Clean Water Act case that didn’t
involve wetlands). Prior to 2001, many courts held that a plaintiff could recover attorneys
fees as a prevailing party when their lawsuit acted as a catalyst for a voluntary change
in the defendant’s conduct that achieved the outcome that the plaintiff desired to achieve
in bringing the citizen suit. However, in Buckhannon Board and Care Home, Inc. v. West
Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), a case
involving the Americans with Disabilities Act and the Fair Housing Amendments Act, the
Supreme Court held that a party must secure a judgment on the merits or a court-ordered
consent decree, which can include a consent decree that enforces a settlement
agreement, to recover attorneys’ fees as a prevailing party.

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3.

Limits on citizen suits
Standing

Section 505(a) of the Clean Water Act authorizes any citizen to bring a citizen suit, and
the statute defines a citizen as “a person or persons having an interest which is or maybe
adversely affected.” See 33 U.S.C. § 1365(g). While the statute authorizes a broad
category of persons to sue, Congress cannot eliminate Article III standing requirements
through legislation, so plaintiffs must still demonstrate that they have suffered or
imminently will suffer an injury that was caused by the Clean Water Act violation about
which they are suing and that the relief that they are seeking in the citizen suit (injunction,
damages, etc.) will redress their injury. See Friends of the Earth, Inc. v. Laidlaw
Environmental Services, 528 U.S. 167, 181-183 (2000) (noting that aesthetic injuries
suffered by the plaintiff can suffice, as can injuries suffered by the plaintiff that are caused
by the plaintiff’s reasonable concerns that the defendant’s conduct will cause harm).
Depending on the facts of the case, a plaintiff may have a difficult time demonstrating that
they have already been injured by the defendant’s conduct or that they will imminently be
injured by the conduct, or that an injunction or civil penalties will redress their injuries.
As noted above, in order to demonstrate standing, plaintiffs normally also must show that
their interest in the litigation is arguably within the zone of interests sought to be protected
by the statute under which they are suing. However, this prudential standing
requirement is less problematic for plaintiffs in the Clean Water Act context than the
Article III standing (injury in fact) requirement. It is less problematic because it is an easy
test to meet in most cases. In Clarke v. Securities Industry Association, 479 U.S. 388,
399-400 (1987), the Supreme Court held that standing will be denied under that test only
if the plaintiff’s interests are “so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed that Congress intended to
permit the suit.” In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court clarified
that, in determining whether the zone of interests test is met, the court examines the
purpose of the section of the statute under which the plaintiff is suing, rather than the
general purposes of the statute. Thus, in a citizen suit alleging violations of Section 404,
the plaintiff would have to demonstrate that their interests not simply marginally related
to or inconsistent with the purposes of Section 404. When citizens are alleging
environmental injuries caused by the defendant’s Section 404 violation, it is not difficult
to demonstrate that the injuries are within the zone of interests sought to be protected by
Section 404. However, if the plaintiffs are competitors of the defendants and are alleging
that they have suffered economic harm caused by the violation, it may be more difficult
to satisfy the zone of interest test.
It is likely, though, that the zone of interests test will not serve as a roadblock to citizen
suits in any case because it probably does not apply at all in the Clean Water Act citizen

398

suit context. Although Congress cannot eliminate Article III standing requirements through
legislation, the Supreme Court held, in Bennett v. Spear, 520 U.S. 154 (1997), that
Congress eliminated the “zone of interest” requirement for citizen suits under the
Endangered Species Act when it enacted a broadly worded citizen suit provision that
authorized any person to sue for violations of the statute. Since Section 505 also broadly
authorizes any citizen to sue, there is a strong argument available to plaintiffs that
Congress eliminated the zone of interest requirement for citizen suits under the Clean
Water Act, as well. However, in finding that the language of the Endangered Species Act
citizen suit provision was broad enough to demonstrate Congress’ intent to eliminate the
“zone of interest” requirement for that statute, the Supreme Court pointed out that the
language was broader than the language used in other environmental statutes,
specifically contrasting the language of Section 505 of the Clean Water Act. Thus, it is
possible that Clean Water Act citizen suit plaintiffs may still need to satisfy the zone of
interest test.
Notice and Diligent Prosecution Bar
As noted above, citizen enforcement is designed to supplement, rather than replace,
government enforcement. Consequently, before a plaintiff can file a citizen suit, they must
provide, to the defendant, EPA, and the state where the violation is occurring, a notice of
their intent to sue at least 60 days before filing suit. See 33 U.S.C. § 1365(b). If they are
suing EPA for failure to perform a non-discretionary duty, they must provide EPA with
notice of their intent to sue at least 60 days before filing suit. Id. EPA has adopted
regulations that further specify the content of the required notice, the manner in which it
must be served, and the persons to whom it must be directed. See 40 C.F.R.
§§ 135.1 - 135.3. If a plaintiff files their citizen suit without filing the required 60 day notice,
the court will dismiss the suit for lack of jurisdiction. See Hallstrom v. Tillamook County,
493 U.S. 20, 26 (1989) (interpreting similar language in RCRA).
If a citizen files their notice of intent to sue a defendant for violating an effluent standard
or limitation or order regarding an effluent standard or limitation, and EPA or the state
commence and are diligently prosecuting a civil or criminal action in state or federal
court to enforce the standard, limitation or order before the plaintiff files a citizen suit,
the plaintiff is precluded from filing suit. See 33 U.S.C. § 1365(b). That limit is consistent
with the goal of the statute to establish the government as the primary enforcement
authority. The Clean Water Act also prohibits citizen suits when the Corps, EPA or States
are diligently prosecuting administrative penalty proceedings.” See 33 U.S.C.
§ 1319(g)(6). While courts are reluctant to find that the government is not diligently
prosecuting a lawsuit if the government has commenced the lawsuit in court, there are
cases where a plaintiff can prove lack of diligent prosecution. For instance, a Clean Water
Act case that didn’t involve wetlands or Section 404 reached the Supreme Court when
the district court allowed the citizen suit to go forward, finding that a state enforcement

399

action was not being diligently prosecuted because the defendant drafted the complaint
against itself, drafted the settlement agreement, filed the lawsuit against itself and paid
the filing fee, and because the agreement was entered into with “unusual haste” and
provided for civil penalties that were less than the economic benefit that the defendant
received by violating the Clean Water Act. See Friends of the Earth, Inc. v. Laidlaw
Environmental Services, 528 U.S. 167 (2000). The Laidlaw case is unusual, though, and
judicial enforcement actions by government usually will preclude citizen suits. If the
plaintiff cannot bring a citizen suit because the government is diligently prosecuting an
enforcement action, the statute authorizes the citizen to intervene as of right in
enforcement actions brought in federal court. See 33 U.S.C. § 1365(b).
While the statute bars citizen suits when the government is diligently prosecuting an
enforcement action, if a plaintiff files a notice of intent to sue in accordance with the statute
and neither the state nor the federal government commence a judicial enforcement action,
the plaintiff can file its citizen suit and can proceed with the suit even if the state or federal
government bring an enforcement action after the plaintiff files the citizen suit. The bar on
citizen suits in Section 505 only applies when the government brings enforcement actions
before the plaintiff files suit. When the plaintiff brings a citizen suit, though, the Clean
Water Act requires the plaintiff to serve a copy of the complaint on the Attorney General
and EPA and authorizes EPA to intervene in the citizen suit as of right. See 33 U.S.C.
§ 1365(c). In addition, the statute prohibits the court from entering a consent judgment in
a citizen suit if the United States isn’t a party to the suit until 45 days after the Attorney
General and EPA receive a copy of the proposed consent judgment. Id. EPA’s regulations
provide more detail regarding the manner of service of the complaint and consent
judgment. See 40 C.F.R. §§ 135.4 - 135.5.
Interview
Jan Goldman Carter, Senior Manager and Counsel for the National
Wildlife Federation's Wetlands and Water Resources Program,
discusses:
1. the mission and structure of the National Wildlife Federation, and work
that the organization does to protect wetlands (YouTube).
2. the role that litigation plays in protecting wetlands, and the manner in
which the National Wildlife Federation chooses litigation priorities.
(YouTube).

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Hypotheticals
The Griffin Heavy Equipment Company, which manufactures construction vehicles, recently
broke ground on a new factory in the suburbs of Seattle, Washington. Flanders Construction
Company, a competitor of Griffin, has most of its manufacturing facilities on the east coast, but
hoped to open a factory on the west coast and was in negotiations to acquire the property which
Griffin eventually acquired. The city provided Griffin with significant tax incentives and Flanders
has not been able to find another suitable location in the state of Washington.
While driving by the Griffin property in April of last year, Ed Flanders, the CEO of Flanders
Construction Company, noticed that Griffin was filling 20 acres of wetlands on the property to
build the factory. Ed Flanders was still upset that Griffin acquired the property that he wanted to
acquire for his factory, so he consulted his corporate counsel to see whether he could do
anything to “make life difficult” for Griffin.
After speaking to his attorney and learning that Griffin did not have a permit authorizing the filling
activity, Flanders sent a letter to the Griffin Heavy Equipment Company, copying EPA and the
Washington State Department of Ecology, indicating that Flanders intended to sue Griffin under
Section 505(a)(1) of the Clean Water Act, because Griffin was violating Section 301 of the Clean
Water Act by discharging fill material into navigable waters without a permit.
A week later, Griffin completed the filling of wetlands and poured the concrete pad for the factory.
Flanders waited another 3 months before taking any other action. Griffin did not engage in any
additional filling activities during that time and neither EPA nor the State of Washington took any
administrative, civil or criminal action against Griffin. Three and a half months after sending the
letter to Griffin threatening a lawsuit, Flanders filed a citizen suit against Griffin under Section
505(a)(1) of the Clean Water Act in the Federal District Court for the Eastern District of
Washington, located in Spokane, Washington. Flanders felt that the judges in that court would
be more sympathetic to his case than the judges in the Western District, where the property was
located.
In his complaint, Flanders alleged that he had an economic interest in bringing suit and would
be injured, as a competitor, because Griffin was able to lower its operating costs by building a
factory without complying with the Clean Water Act. Flanders did not allege any interest in clean
water or the environment in his complaint. What defenses could Griffin raise in response to the
complaint? With what success? If EPA brought an enforcement action under Section 309 after
Flanders sued, and EPA sought civil penalties, but did not seek restoration of the wetlands,
could Flanders proceed with his suit?

401

Drafting Exercise
You have been retained by Friends of the Ocmulgee (“Friends”), a non-profit organization, to
file a citizen suit against Middle Georgia River Runners, Inc. (“MGRRI”), because MGRRI
allegedly discharged dredged or fill material into navigable waters without a Clean Water Act
Section 404 permit. Friends was incorporated in Georgia and has its headquarters at 12345
Sixth Street, Macon, Georgia, 31207. Their phone number is (478) 987-6543. MGRRI is a
corporation that was incorporated in Georgia, has its headquarters on River Road in Juliette,
Georgia, 31046, and is doing business in Georgia.
Friends was created to protect and advocate for the water quality of the Ocmulgee River
and the recreational use and enjoyment of the River. Friends has numerous members in
Macon, Juliette, and Middle Georgia who live, work or travel along the Ocmulgee River and
recreate in or near the River (by fishing, hiking, walking, photographing, plant gathering and
boating).
MGRRI operates a rafting tour business from its property on River Road, which is adjacent
to the Ocmulgee River. On October 10, 2014, members of Friends observed employees of
MGRRI using a Caterpillar Backhoe Loader to clear ½ acre of wetlands adjacent to the
Ocmulgee River on the River Road property. On the same day, they observed those
employees using the Backhoe Loader to add rock and soil to the wetlands to construct a
parking lot for the rafting tour business. For purposes of this exercise, assume that the
Ocmulgee River is a tributary of an interstate water. MGRRI did not have a Section 404
permit that authorized the clearing or filling of the wetlands. The fill material remains in place
today.
The recreational, economic, aesthetic and/or health interests of Friends and its members
have been, are being, and will be adversely affected by MGRRI’s violations of the Clean
Water Act. The relief sought in the lawsuit will redress the injuries to those interests.
Friends would like to bring a citizen suit against MGRRI under the Clean Water Act for a
declaratory judgment that MGRRI is violating the Act, an injunction to require MGRRI to
remediate the harm caused by the violation, imposition of civil penalties, an award of costs,
including attorneys’ fees and expert witness fees, and other appropriate relief.
1. Draft the 60 day notice required by the Clean Water Act. EPA’s regulations regarding the
notice requirements are codified at 40 C.F.R. §§ 135.1 - 135.3. The materials included in
the “Resources” box at the beginning of the section of this Chapter that addresses “Citizen
Suits” should also be helpful in drafting the notice.
2. Draft the complaint for the citizen suit. The materials included in the “Resources” box,
referenced in the last question, should be helpful in drafting the notice. For purposes of this
exercise, you do not need to conform the pleading to the local rules of the federal district
court in which you will file the complaint. Remember to include the 60 day notice that you
prepared in response to the last question as an attachment.

402

Chapter Quiz
Now that you’ve finished Chapter 10, why not try a CALI Lesson on the material at:
http://cca.li/Q1. It should take about 45 minutes.

403

Chapter 11
Regulatory Takings
I. Background
From the early days of the Clean Water Act Section 404 program through today, private
property rights advocates have criticized government regulation of wetlands. Although the
Corps denies very few Section 404 permit applications, over the years, several
landowners have challenged wetland permit denials as “takings” of their property. In light
of the fact that almost 75% of the remaining wetlands in the lower 48 states are privately
owned, the takings issue is likely to remain an important consideration in the design and
implementation of wetlands protection programs.
To the extent that “takings” claims arise regarding federal or state wetlands regulation,
the claims usually arise when the government
denies a permit to a landowner that would
authorize development in wetlands, although
some landowners have raised takings claims
as soon as the government has asserted
jurisdiction over wetlands on their property.
Landowners have also raised takings
challenges when the government issues a
permit, but includes conditions or limits in the
permit that the landowners oppose.
Takings claims are based on the Fifth
Amendment
of
the
United
States
Constitution, which provides that private
property shall not be “taken for public use,
without just compensation.” See U.S. Const., Photo 29 By Ian Paterson
Amend. 5. While the Fifth Amendment http://commons.wikimedia.org/wiki/File%3APriv
provides the basis for takings claims against ate_Property_-_geograph.org.uk_-_838016.jpg
[CC-BY-SA-2.0]
the Corps of Engineers and other federal
agencies, the takings prohibition is also made applicable to states and state agencies
through the Due Process Clause of the Fourteenth Amendment of the Constitution. See
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897).

404

Although early court decisions focused on physical invasion or appropriation of property
by government as takings, the Supreme Court has held, since 1922, that government
regulation of property that restricts the use of the property can constitute a taking if the
regulation “goes too far.” See Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922). At the
same time, though, Justice Holmes, writing for the Court, stressed that “[g]overnment
hardly could go on if to some extent values incident to property could not be diminished
without paying for every such change in the general law.” Id. at 413.
Fifty years later, the Court provided some guidance to help determine when government
regulation “goes too far,” so that is a taking. In Penn Central Transportation Company v.
New York City, 438 U.S. 104, 124 (1978), the Court eschewed adopting any bright line
rules, but held that several factors are significant in evaluating whether government
regulation constitutes a taking, including (1) the economic impact of the regulation on
the claimant; (2) the extent to which the regulation has interfered with investmentbacked expectations of the claimant; and (3) the character of the government action.
Regarding the character of the government action, the Court suggested that it was less
likely that government regulation would be a taking when the interference with private
property rights “arises from some public program adjusting the benefits and burdens of
economic life to promote the common good.” Id. According to the Court, the three factor
Penn Central test requires an ad hoc, factual analysis in each case. Id. The Penn Central
Court again stressed that the government is not required to pay for every reduction in
property value caused by regulation, but is only required to pay when the regulation “goes
too far.” Id. In Hadacheck v. Sebastian, 239 U.S. 394 (1915), a case cited by the Penn
Central Court, the Supreme Court upheld a law prohibiting the operation of a brickyard in
a residential neighborhood against a taking challenge even though the regulation reduced
the landowner’s property value by more than 90%.
II.

Jurisdiction and Timing of Takings Claims

According to the Tucker Act, takings claims against the United States must be brought in
the United States Court of Federal Claims if the plaintiff is seeking more than $10,000.
See 28 U.S.C. § 1491. Takings claims for less than $10,000 can be brought in the federal
district courts. See 28 U.S.C. § 1346. The Court of Federal Claims does not have
jurisdiction to adjudicate the validity of the Corps’ denial or issuance of a Section 404
permit, an EPA veto of a permit, or a jurisdictional determination by EPA or the Corps, so
a landowner who is seeking more than $10,000 in compensation for a taking based on
those actions must bring two separate actions if they want to challenge the validity of the
underlying agency determination that is allegedly a taking. Decisions of the U.S. Court of
Federal Claims can be appealed to the United States Court of Appeals for the Federal
Circuit. Consequently, most of the takings jurisprudence developed outside of the
Supreme Court is developed in the Court of Federal Claims and the Federal Circuit.

405

Since a court determining whether a government regulation constitutes a taking must
conduct an ad hoc factual analysis of the impact of the government regulation on the
property, the Supreme Court has stressed that a takings claim “is not ripe until the
government entity charged with implementing the regulations has reached a final decision
regarding the application of the regulations to the property at issue.” See Williamson
County Regional Planning v. Hamilton Bank, 473 U.S. 172 (1985). In that case, the Court
held that a developer could not challenge, as a taking, a county planning commission’s
decision to deny approval for a development proposal because the developer had not yet
sought a variance that might have allowed the development to proceed. In the following
year, in McDonald et al v. County of Yolo, 477 U.S. 340, 351 (1986), the Court again
stressed that a landowner cannot pursue a takings challenge based on the application of
a government regulatory program to its land until the landowner receives the
government’s “final, definitive position regarding how it will apply the regulations at issue
to the particular land in question.” In McDonald, the Court determined that, even though
the government had denied the landowner’s subdivision proposal, it was possible that the
government would approve a more limited subdivision proposal if the landowner sought
approval, so the Court could not determine the extent of the government interference with
the landowner’s property rights until the government identified a final, definitive position
on the limits on the development of the property. Id.
There are, however, limits to this line of authority. In Palazzolo v. Rhode Island, 533 U.S.
606, 620 (2001), the Supreme Court held that “once it becomes clear that the agency
lacks the discretion to permit any development, or the permissible uses of the property
are known to a reasonable degree of certainty, a takings claim is likely to have ripened.”
In that case, the government argued that the plaintiff’s takings challenge to regulation
limiting the development of wetlands was unripe because the plaintiff had not submitted
additional development proposals after three development proposals were rejected, but
the Court concluded that the plaintiff could pursue a takings claim because it was clear
that the government would not allow any development of the wetlands even if the plaintiff
submitted another development proposal. Id. Thus, if the limits that the government will
ultimately place on a landowner’s property can be determined to a reasonable degree of
certainty, the landowner’s taking claim will be ripe and they do not have to pursue variance
procedures or advance other development proposals that would be futile.
In light of ripeness concerns like those in the Williamson County and McDonald cases,
landowners are generally unable to bring takings challenges based on a preliminary or
approved jurisdictional determination by the Corps or EPA. See United States v. Riverside
Bayview Homes, 474 U.S. 121 (1985). Since a landowner might still be able to obtain a
Section 404 permit to develop their property after the government has determined that
the property contains jurisdictional waters, it is not clear, at the time of the jurisdictional
determination, what restrictions, if any, will be placed on the landowner’s use of their

406

property. Similarly, a landowner will generally not be able to challenge a cease and desist
order or administrative compliance order as a taking, since the landowner may ultimately
be able to engage in the prohibited development of their property if they seek and obtain
a Section 404 permit. See Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993).
For the same reasons, when the government determines that an activity is not exempt
from the Section 404 permit requirement or that an activity is not authorized by a general
permit, a landowner will generally be unable to challenge the government decision as a
taking because the landowner may still apply for, and perhaps obtain, an individual
Section 404 permit. In each of the preceding scenarios in this paragraph, though, if it is
clear that any application for a Section 404 permit would be ultimately rejected, a
landowner may be able to argue their takings challenge is ripe in light of the Palazzolo
decision.
Once landowners apply for a permit and the Corps or EPA (though a veto) make a final
decision on the permit, it becomes easier for landowners to raise takings challenges,
although some of those decisions may still not be ripe for a takings challenge. If the Corps
has issued a Section 404 permit to a landowner and the landowner wants to challenge
the restrictions placed on his property by the conditions included in the permit, the
landowner’s claim is probably ripe for review, since the permit reflects the government’s
final definitive application of the Clean Water Act regulatory program to the landowner’s
property.
If, however, a Section 404 permit application is withdrawn or denied “without prejudice”
because the applicant did not provide all of the information required to process the permit
application or because the applicant was not able to obtain the necessary state or local
approvals for the development project (i.e. State permit, 401 certification, CZMA
consistency, local zoning approval, etc.), the landowner will probably not be able to
pursue a takings claim against the Corps at that time. See Heck v. United States, 37 Fed.
Cl. 245 (1997). After all, it is not clear, at that time, whether the Corps would have issued
a permit or included specific conditions in the permit if the applicant had obtained the
other necessary approvals. If the Corps, in denying the permit “without prejudice”,
indicates that it would have denied the permit anyway, though, a court may determine
that a takings claim against the agency is ripe. See City National Bank v. United States,
33 Fed. Cl. 224 (1995).
When the Corps denies a permit and does not deny it “without prejudice”, landowners are
in the best position to pursue a ripe takings challenge. Although the Corps might argue
that the landowner must re-submit a less ambitious permit application before challenging
the denial as a taking, in light of the Williamson County and McDonald precedent, the
Court of Federal Claims frequently rejects that argument, finding that additional permit
applications would be futile. See, e.g., Cristina Inv. Corp. v. United States, 40 Fed. Cl.
571 (1998); City National Bank v. United States, 30 Fed. Cl. 715 (1994).

407

Questions and Comments
1.

Ripeness and Appeals: Pursuant to the Corps’ regulations, permits denied with
prejudice and declined permits can be appealed administratively and cannot be
challenged in court if they are not challenged administratively. See 33 C.F.R.
§ 331.12. In light of those regulations, it is unclear whether the Court of Federal
Claims will allow a landowner to pursue a takings challenge to a permit denial or
permit conditions if the landowner has not exhausted its administrative remedies.
If the landowner has sought administrative review, though, the Court of Federal
Claims will not review a takings claim until the Corps has made a final decision on
the appeal. See Bay-Houston Towing Co. v. United States, 58 Fed. Cl. 462 (2003).

2.

Swampbuster: Landowners have not generally brought takings claims based on
a denial of farm benefits due to the Swampbuster provisions of the Food Security
Act. Do you understand why not?

3.

State Laws Providing Compensation for Diminution in Value: Although the
Supreme Court has held that the government is not required to pay for every
reduction in property value, but is only required to compensate landowners when
government regulation “goes too far,” many states have passed laws that require
government entities to compensate landowners when government regulation
reduces property values by a specific degree (i.e., 50%, 70%, etc.) See
Environmental Law Institute, State Constraints: State-Imposed Limitations on the
Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean
Water Act 20-23 (May 2013). The laws are not based on the federal or state
constitutions, but create additional limits on government regulation to protect
“private property rights.” Many of the laws allow states to avoid paying
compensation by waiving the application of the regulation to the landowner
challenging the government action. Id. What impact might these laws have on
federal or state regulation of wetlands?

408

Hypotheticals
1. Alex Pritchett owns an acre of land in Glynn County, Georgia. She would like to build a dock
on the property, which is primarily coastal wetlands, but the Corps of Engineers has just issued
an approved jurisdictional determination, finding that the entire parcel of land is “waters of the
United States.” Without focusing on whether the Corps’ action ultimately would be a taking, can
she bring a taking action in federal district court seeking $8,000 in damages (the amount that
she paid for the property) based on the Corps’ jurisdictional determination? If the Corps
subsequently informs her that her plans to build her dock on the property do not qualify for the
regional general permit that the Corps district issued to authorize the construction of small
docks, can she bring her takings lawsuit at that time? Would it make a difference if the Corps
simultaneously told her that she would never be able to build a dock on her property because
any construction on her property would harm a sensitive breeding area for several species of
snakes and rodents?
2. Arthur Gomez applied to the Corps of Engineers for a Section 404 permit to fill 7 acres of
wetlands on a 10 acre plot of land that he owned, so that he could develop the property as a
residential subdivision. When the State would not provide a Section 401 certification for his
proposed development, the Corps denied his permit without prejudice, although they
encouraged him to submit a new application that would impact fewer acres of wetlands because
they would never approve a proposal to fill all 7 acres of wetlands on his property. Without
focusing on whether the Corps’ action would ultimately be a taking, can he bring a taking action
in federal district court seeking $500,000 (the amount that he paid for the property)? Would
your answer be different if the State provided the Section 401 certification but the Corps denied
the permit application after the agency asked Gomez to submit a development proposal that
would impact 5 acres or less of wetlands on the property and Gomez refused? Should Gomez
appeal the permit denial administratively before bringing his takings claim?

III.

The Takings Analysis

In determining whether government regulation constitutes a taking, courts generally
engage in an ad hoc, fact-sensitive analysis using the Penn Central analysis. However,
the Supreme Court has established a few categorical rules that apply in takings cases.
The following case examines one of those rules. As additional background for the case,
it is helpful for the reader to know that, prior to this case, the Supreme Court held that a
landowner can recover compensation when a government regulation “temporarily” takes
their property, even though the regulatory restriction is later removed. See Tahoe Sierra
Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002); First
English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304
(1987).

409

Photo 30 By Cugirl (Own work)
http://commons.wikimedia.org/wiki/File:Iop.jpg [Public domain]

Lucas v. South Carolina Coastal
Council

Resources for the Case

505 U.S. 1003 (1992)
JUSTICE SCALIA delivered the opinion of
the Court.

Unedited Opinion (From Justia)
Google Map of all the cases in the coursebook
Oral argument (from the Oyez Project)
Photos, Documentary and Court Documents (from
Duke Law - American Voices Project)

In 1986, petitioner David H. Lucas paid
$975,000 for two residential lots on the Isle of Palms in Charleston County, South
Carolina, on which he intended to build single-family homes. In 1988, however, the South
Carolina Legislature enacted the Beachfront Management Act, * * * which had the direct
effect of barring petitioner from erecting any permanent habitable structures on his two
parcels. * * * A state trial court found that this prohibition rendered Lucas's parcels
"valueless." * * * This case requires us to decide whether the Act's dramatic effect on the
economic value of Lucas's lots accomplished a taking of private property under the Fifth
and Fourteenth Amendments requiring the payment of "just compensation." U.S. Const.,
Amend. 5.

410

I
A
South Carolina's expressed interest in intensively managing development activities in the
so-called "coastal zone" dates from 1977 when, in the aftermath of Congress's passage
of the federal Coastal Zone Management Act of 1972, * * * the legislature enacted a
Coastal Zone Management Act of its own. * * * In its original form, the South Carolina Act
required owners of coastal zone land that qualified as a "critical area" (defined in the
legislation to include beaches and immediately adjacent sand dunes, * * * to obtain a
permit from the newly created South Carolina Coastal Council (Council) (respondent
here) prior to committing the land to a "use other than the use the critical area was devoted
to on [September 28, 1977]." * * *
In the late 1970's, Lucas and others began extensive residential development of the Isle
of Palms, a barrier island situated eastward of the city of Charleston. Toward the close of
the development cycle for one residential subdivision known as "Beachwood East," Lucas
in 1986 purchased the two lots at issue in this litigation for his own account. No portion of
the lots, which were located approximately 300 feet from the beach, qualified as a "critical
area" under the 1977 Act; accordingly, at the time Lucas acquired these parcels, he was
not legally obliged to obtain a permit from the Council in advance of any development
activity. His intention with respect to the lots was to do what the owners of the immediately
adjacent parcels had already done: erect singlefamily residences. He commissioned
architectural drawings for this purpose.
The Beachfront Management Act brought Lucas's plans to an abrupt end. Under that
1988 legislation, the Council was directed to establish a "baseline" connecting the
landwardmost "point[s] of erosion ... during the past forty years" in the region of the Isle
of Palms that includes Lucas's lots. * * * In action not challenged here, the Council fixed
this baseline landward of Lucas's parcels. That was significant, for under the Act
construction of occupable improvements2 was flatly prohibited seaward of a line drawn
20 feet landward of, and parallel to, the baseline. * * * The Act provided no exceptions.
B
Lucas promptly filed suit in the South Carolina Court of Common Pleas, contending that
the Beachfront Management Act's construction bar effected a taking of his property
without just compensation. Lucas did not take issue with the validity of the Act as a lawful
2

The Act did allow the construction of certain nonhabitable improvements, e.g., "wooden
walkways no larger in width than six feet," and "small wooden decks no larger than one
hundred forty-four square feet."
411

exercise of South Carolina's police power, but contended that the Act's complete
extinguishment of his property's value entitled him to compensation regardless of whether
the legislature had acted in furtherance of legitimate police power objectives. Following a
bench trial, the court agreed. Among its factual determinations was the finding that "at the
time Lucas purchased the two lots, both were zoned for single-family residential
construction and ... there were no restrictions imposed upon such use of the property by
either the State of South Carolina, the County of Charleston, or the Town of the Isle of
Palms." * * * The trial court further found that the Beachfront Management Act decreed a
permanent ban on construction insofar as Lucas's lots were concerned, and that this
prohibition "deprive[d] Lucas of any reasonable economic use of the lots, ... eliminated
the unrestricted right of use, and render[ed] them valueless." * * * The court thus
concluded that Lucas's properties had been "taken" by operation of the Act, and it ordered
respondent to pay "just compensation" in the amount of $1,232,387.50. * * *
The Supreme Court of South Carolina reversed. It found dispositive what it described as
Lucas's concession "that the Beachfront Management Act [was] properly and validly
designed to preserve ... South Carolina's beaches." * * * Failing an attack on the validity
of the statute as such, the court believed itself bound to accept the "uncontested ...
findings" of the South Carolina Legislature that new construction in the coastal zone-such
as petitioner intended-threatened this public resource. * * * The court ruled that when a
regulation respecting the use of property is designed "to prevent serious public harm,"
* * * (citing, inter alia, Mugler v. Kansas, 123 U.S. 623 (1887)), no compensation is owing
under the Takings Clause regardless of the regulation's effect on the property's value.
Two justices dissented. They acknowledged that our Mugler line of cases recognizes
governmental power to prohibit "noxious" uses of property-i. e., uses of property akin to
"public nuisances"-without having to pay compensation. But they would not have
characterized the Beachfront Management Act's "primary purpose [as] the prevention of
a nuisance." * * * To the dissenters, the chief purposes of the legislation, among them the
promotion of tourism and the creation of a "habitat for indigenous flora and fauna," could
not fairly be compared to nuisance abatement. * * * As a consequence, they would have
affirmed the trial court's conclusion that the Act's obliteration of the value of petitioner's
lots accomplished a taking.
We granted certiorari. * * *
III
Prior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922), it was generally thought that the Takings Clause reached only a "direct
appropriation" of property * * * or the functional equivalent of a "practical ouster of [the
owner's] possession," * * * Justice Holmes recognized in Mahon, however, that if the

412

protection against physical appropriations of private property was to be meaningfully
enforced, the government's power to redefine the range of interests included in the
ownership of property was necessarily constrained by constitutional limits. 260 U.S., at
414-415. * * *
Nevertheless, our decision in Mahon offered little insight into when, and under what
circumstances, a given regulation would be seen as going "too far" for purposes of the
Fifth Amendment. In 70-odd years of succeeding "regulatory takings" jurisprudence, we
have generally eschewed any "'set formula' " for determining how far is too far, preferring
to "engag[e] in ... essentially ad hoc, factual inquiries." Penn Central Transportation Co.
v. New York City, 438 U.S. 104, 124 (1978) (quoting Goldblatt v. Hempstead, 369 U.S.
590,594 (1962)). * * * We have, however, described at least two discrete categories of
regulatory action as compensable without case-specific inquiry into the public interest
advanced in support of the restraint. The first encompasses regulations that compel the
property owner to suffer a physical "invasion" of his property. * * *
The second situation in which we have found categorical treatment appropriate is where
regulation denies all economically beneficial or productive use of land. See Agins v. City
of Tiburon, 447 U.S. 255, 260; see also Nollan v. California Coastal Comm'n, 483 U.S.
825, 834 (1987); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495
(1987); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 295296 (1981). * * * As we have said on numerous occasions, the Fifth Amendment is
violated when land-use regulation "does not substantially advance legitimate state
interests or denies an owner economically viable use of his land." Agins, supra, at 260
(citations omitted) (emphasis added).7
7

Regrettably, the rhetorical force of our "deprivation of all economically feasible use" rule
is greater than its precision, since the rule does not make clear the "property interest"
against which the loss of value is to be measured. When, for example, a regulation
requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether
we would analyze the situation as one in which the owner has been deprived of all
economically beneficial use of the burdened portion of the tract, or as one in which the
owner has suffered a mere diminution in value of the tract as a whole. (For an extremeand, we think, unsupportable-view of the relevant calculus, see Penn Central
Transportation Co. v. New York City, 42 N.Y.2d 324, 333-334, 366 N.E.2d 1271, 12761277 (1977), aff'd, 438 U.S. 104 (1978), where the state court examined the diminution
in a particular parcel's value produced by a municipal ordinance in light of total value of
the takings claimant's other holdings in the vicinity.) Unsurprisingly, this uncertainty
regarding the composition of the denominator in our "deprivation" fraction has produced
inconsistent pronouncements by the Court. Compare Pennsylvania Coal Co. v. Mahon,
260 U.S. 393, 414 (1922) (law restricting subsurface extraction of coal held to effect a
taking), with Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 497-502
(1987) (nearly identical law held not to effect a taking); see also id., at 515-520
413

We have never set forth the justification for this rule. Perhaps it is simply, as Justice
Brennan suggested, that total deprivation of beneficial use is, from the landowner's point
of view, the equivalent of a physical appropriation. See San Diego Gas & Electric Co. v.
San Diego, 450 U.S., at 652 (dissenting opinion). "[F]or what is the land but the profits
thereof[?]" 1 E. Coke, Institutes, ch. 1, § 1 (1st Am. ed. 1812). Surely, at least, in the
extraordinary circumstance when no productive or economically beneficial use of land is
permitted, it is less realistic to indulge our usual assumption that the legislature is simply
"adjusting the benefits and burdens of economic life," Penn Central Transportation Co.,
438 U.S., at 124, in a manner that secures an "average reciprocity of advantage" to
everyone concerned, Pennsylvania Coal Co. v. Mahon, 260 U.S., at 415. And the
functional basis for permitting the government, by regulation, to affect property values
without compensation-that
"Government hardly could go on if to some extent values incident to property could
not be diminished without paying for every such change in the general law,"
id., at 413 - does not apply to the relatively rare situations where the government has
deprived a landowner of all economically beneficial uses.
On the other side of the balance, affirmatively supporting a compensation requirement, is
the fact that regulations that leave the owner of land without economically beneficial or
productive options for its use-typically, as here, by requiring land to be left substantially
in its natural state-carry with them a heightened risk that private property is being pressed
into some form of public service under the guise of mitigating serious public harm. See,
e.g., Annicelli v. South Kingstown, 463 A.2d 133, 140-141 (R.I. 1983) (prohibition on
construction adjacent to beach justified on twin grounds of safety and "conservation of
open space"); Morris County Land Improvement Co. v. Parsippany-Troy Hills Township,
40 N.J. 539, 552-553, 193 A.2d 232, 240 (1963) (prohibition on filling marshlands
imposed in order to preserve region as water detention basin and create wildlife refuge).
As Justice Brennan explained:

(REHNQUIST, C. J., dissenting); * * * The answer to this difficult question may lie in how
the owner's reasonable expectations have been shaped by the State's law of property-i.
e., whether and to what degree the State's law has accorded legal recognition and
protection to the particular interest in land with respect to which the takings claimant
alleges a diminution in (or elimination of) value. In any event, we avoid this difficulty in the
present case, since the "interest in land" that Lucas has pleaded (a fee simple interest) is
an estate with a rich tradition of protection at common law, and since the South Carolina
Court of Common Pleas found that the Beachfront Management Act left each of Lucas's
beachfront lots without economic value.
414

"From the government's point of view, the benefits flowing to the public from
preservation of open space through regulation may be equally great as from
creating a wildlife refuge through formal condemnation or increasing electricity
production through a dam project that floods private property."
San Diego Gas & Elec. Co., supra, at 652 (dissenting opinion). The many statutes on the
books, both state and federal, that provide for the use of eminent domain to impose
servitudes on private scenic lands preventing developmental uses, or to acquire such
lands altogether, suggest the practical equivalence in this setting of negative regulation
and appropriation. * * *
We think, in short, that there are good reasons for our frequently expressed belief that
when the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.8
8

JUSTICE STEVENS criticizes the "deprivation of all economically beneficial use" rule
as "wholly arbitrary," in that "[the] landowner whose property is diminished in value 95%
recovers nothing," while the landowner who suffers a complete elimination of value
"recovers the land's full value." Post, at 1064. This analysis errs in its assumption that the
landowner whose deprivation is one step short of complete is not entitled to
compensation. Such an owner might not be able to claim the benefit of our categorical
formulation, but, as we have acknowledged time and again, "[t]he economic impact of the
regulation on the claimant and ... the extent to which the regulation has interfered with
distinct investment-backed expectations" are keenly relevant to takings analysis
generally. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978).
It is true that in at least some cases the landowner with 95% loss will get nothing, while
the landowner with total loss will recover in full. But that occasional result is no more
strange than the gross disparity between the landowner whose premises are taken for a
highway (who recovers in full) and the landowner whose property is reduced to 5% of its
former value by the highway (who recovers nothing). Takings law is full of these "all ornothing" situations.
JUSTICE STEVENS similarly misinterprets our focus on "developmental" uses of
property (the uses proscribed by the Beachfront Management Act) as betraying an
"assumption that the only uses of property cognizable under the Constitution are
developmental uses." Post, at 1065, n.3. We make no such assumption. Though our prior
takings cases evince an abiding concern for the productive use of, and economic
investment in, land, there are plainly a number of noneconomic interests in land whose
impairment will invite exceedingly close scrutiny under the Takings Clause. See, e.g.,
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436 (1982) (interest in
excluding strangers from one's land).
415

B
The trial court found Lucas's two beachfront lots to have been rendered valueless by
respondent's enforcement of the coastal-zone construction ban.9 Under Lucas's theory
of the case, which rested upon our "no economically viable use" statements, that finding
entitled him to compensation. Lucas believed it unnecessary to take issue with either the
purposes behind the Beachfront Management Act, or the means chosen by the South
Carolina Legislature to effectuate those purposes. The South Carolina Supreme Court,
however, thought otherwise. In its view, the Beachfront Management Act was no ordinary
enactment, but involved an exercise of South Carolina's "police powers" to mitigate the
harm to the public interest that petitioner's use of his land might occasion. * * *
It is correct that many of our prior opinions have suggested that "harmful or noxious uses"
of property may be proscribed by government regulation without the requirement of
compensation. For a number of reasons, however, we think the South Carolina Supreme
Court was too quick to conclude that that principle decides the present case. The "harmful
or noxious uses" principle was the Court's early attempt to describe in theoretical terms
why government may, consistent with the Takings Clause, affect property values by
regulation without incurring an obligation to compensate-a reality we nowadays
acknowledge explicitly with respect to the full scope of the State's police
power.* * * “Harmful or noxious use” analysis was, in other words, simply the progenitor
of our more contemporary statements that "land-use regulation does not effect a taking if
it 'substantially advance[s] legitimate state interests' .... " Nollan, supra, at 834 (quoting
Agins v. Tiburon, 447 U.S., at 260); see also Penn Central Transportation Co., supra, at
127; Euclid v. Ambler Realty Co., 272 U.S. 365, 387-388 (1926).
The transition from our early focus on control of "noxious" uses to our contemporary
understanding of the broad realm within which government may regulate without
compensation was an easy one, since the distinction between "harmpreventing" and
"benefit-conferring" regulation is often in the eye of the beholder. It is quite possible, for
example, to describe in either fashion the ecological, economic, and esthetic concerns
that inspired the South Carolina Legislature in the present case. One could say that
imposing a servitude on Lucas's land is necessary in order to prevent his use of it from
"harming" South Carolina's ecological resources; or, instead, in order to achieve the
"benefits" of an ecological preserve.11 Compare, e.g., Claridge v. New Hampshire [*1025]
11

In the present case, in fact, some of the "[South Carolina] legislature's 'findings' " to
which the South Carolina Supreme Court purported to defer in characterizing the purpose
of the Act as "harm-preventing," * * * seem to us phrased in "benefit conferring" language
instead. For example, they describe the importance of a construction ban in enhancing
"South Carolina's annual tourism industry revenue," * * * in "provid[ing] habitat for
numerous species of plants and animals, several of which are threatened or endangered,"
416

Wetlands Board, 125 N.H. 745, 752, 485 A.2d 287, 292 (1984) (owner may, without
compensation, be barred from filling wetlands because landfilling would deprive adjacent
coastal habitats and marine fisheries of ecological support), with, e.g., Bartlett v. Zoning
Comm'n of Old Lyme, 161 Conn. 24, 30, 282 A.2d 907, 910 (1971) (owner barred from
filling tidal marshland must be compensated, despite municipality's "laudable" goal of
"preserv[ing] marshlands from encroachment or destruction"). Whether one or the other
of the competing characterizations will come to one's lips in a particular case depends
primarily upon one's evaluation of the worth of competing uses of real estate. * * * A given
restraint will be seen as mitigating "harm" to the adjacent parcels or securing a "benefit"
for them, depending upon the observer's evaluation of the relative importance of the use
that the restraint favors. See Sax, Takings and the Police Power, 74 Yale L.J. 36, 49
(1964) ("[T]he problem [in this area] is not one of noxiousness or harm-creating activity at
all; rather it is a problem of inconsistency between perfectly innocent and independently
desirable uses"). Whether Lucas's construction of single family residences on his parcels
should be described as bringing "harm" to South Carolina's adjacent ecological resources
thus depends principally upon whether the describer believes that the State's use interest
in nurturing those resources is so important that any competing adjacent use must yield.12
When it is understood that "prevention of harmful use" was merely our early formulation
* * * and in "provid[ing] a natural healthy environment for the citizens of South Carolina to
spend leisure time which serves their physical and mental well-being," * * * It would be
pointless to make the outcome of this case hang upon this terminology, since the same
interests could readily be described in "harm-preventing" fashion.
JUSTICE BLACKMUN, however, apparently insists that we must make the outcome
hinge (exclusively) upon the South Carolina Legislature's other, "harm-preventing"
characterizations, focusing on the declaration that "prohibitions on building in front of the
setback line are necessary to protect people and property from storms, high tides, and
beach erosion." * * * He says "[n]othing in the record undermines [this] assessment,"
* * * apparently seeing no significance in the fact that the statute permits owners of
existing structures to remain (and even to rebuild if their structures are not "destroyed
beyond repair," * * * ), and in the fact that the 1990 amendment authorizes the Council
to issue permits for new construction in violation of the uniform prohibition * * *
12

In JUSTICE BLACKMUN'S view, even with respect to regulations that deprive an owner
of all developmental or economically beneficial land uses, the test for required
compensation is whether the legislature has recited a harm-preventing justification for its
action. See post, at 1039, 1040-1041, 1047-1051. Since such a justification can be
formulated in practically every case, this amounts to a test of whether the legislature has
a stupid staff. We think the Takings Clause requires courts to do more than insist upon
artful harm-preventing characterizations.
417

of the police power justification necessary to sustain (without compensation) any
regulatory diminution in value; and that the distinction between regulation that "prevents
harmful use" and that which "confers benefits" is difficult, if not impossible, to discern on
an objective, value-free basis; it becomes self-evident that noxious-use logic cannot serve
as a touchstone to distinguish regulatory "takings" -which require compensation -from
regulatory deprivations that do not require compensation. A fortiori the legislature's
recitation of a noxious-use justification cannot be the basis for departing from our
categorical rule that total regulatory takings must be compensated. If it were, departure
would virtually always be allowed. The South Carolina Supreme Court's approach would
essentially nullify Mahon's affirmation of limits to the noncompensable exercise of the
police power. Our cases provide no support for this: None of them that employed the logic
of "harmful use" prevention to sustain a regulation involved an allegation that the
regulation wholly eliminated the value of the claimant's land. See Keystone Bituminous
Coal Assn., 480 U.S., at 513-514 (REHNQUIST, C. J., dissenting) * * *
Where the State seeks to sustain regulation that deprives land of all economically
beneficial use, we think it may resist compensation only if the logically antecedent inquiry
into the nature of the owner's estate shows that the proscribed use interests were not part
of his title to begin with. * * * This accords, we think, with our "takings" jurisprudence,
which has traditionally been guided by the understandings of our citizens regarding the
content of, and the State's power over, the "bundle of rights" that they acquire when they
obtain title to property. It seems to us that the property owner necessarily expects the
uses of his property to be restricted, from time to time, by various measures newly
enacted by the State in legitimate exercise of its police powers; "[a]s long recognized,
some values are enjoyed under an implied limitation and must yield to the police power."
Pennsylvania Coal Co. v. Mahon, 260 U.S., at 413. And in the case of personal property,
by reason of the State's traditionally high degree of control over commercial dealings, he
ought to be aware of the possibility that new regulation might even render his property
economically worthless (at least if the property's only economically productive use is sale
or manufacture for sale). See Andrus v. Allard, 444 U.S. 51, 66-67 (1979) (prohibition on
sale of eagle feathers). In the case of land, however, we think the notion pressed by the
Council that title is somehow held subject to the "implied limitation" that the State may
subsequently eliminate all economically valuable use is inconsistent with the historical
compact recorded in the Takings Clause that has become part of our constitutional
culture.* * *
Where "permanent physical occupation" of land is concerned, we have refused to allow
the government to decree it anew (without compensation), no matter how weighty the
asserted "public interests" involved, Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S., at 426 -though we assuredly would permit the government to assert a permanent
easement that was a pre-existing limitation upon the land title. * * *

418

We believe similar treatment must be accorded confiscatory regulations, i.e., regulations
that prohibit all economically beneficial use of land: Any limitation so severe cannot be
newly legislated or decreed (without compensation), but must inhere in the title itself, in
the restrictions that background principles of the State's law of property and nuisance
already place upon land ownership. A law or decree with such an effect must, in other
words, do no more than duplicate the result that could have been achieved in the courtsby adjacent landowners (or other uniquely affected persons) under the State's law of
private nuisance, or by the State under its complementary power to abate nuisances that
affect the public generally, or otherwise.16
On this analysis, the owner of a lakebed, for example, would not be entitled to
compensation when he is denied the requisite permit to engage in a landfilling operation
that would have the effect of flooding others' land. Nor the corporate owner of a nuclear
generating plant, when it is directed to remove all improvements from its land upon
discovery that the plant sits astride an earthquake fault. Such regulatory action may well
have the effect of eliminating the land's only economically productive use, but it does not
proscribe a productive use that was previously permissible under relevant property and
nuisance principles. The use of these properties for what are now expressly prohibited
purposes was always unlawful, and (subject to other constitutional limitations) it was open
to the State at any point to make the implication of those background principles of
nuisance and property law explicit. * * * In light of our traditional resort to "existing rules
or understandings that stem from an independent source such as state law" to define the
range of interests that qualify for protection as "property" under the Fifth and Fourteenth
Amendments, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972);
see, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011-1012 (1984); Hughes v.
Washington, 389 U.S. 290, 295 (1967) (Stewart, J., concurring), this recognition that the
Takings Clause does not require compensation when an owner is barred from putting
land to a use that is proscribed by those "existing rules or understandings" is surely
unexceptional. When, however, a regulation that declares "off-limits" all economically
productive or beneficial uses of land goes beyond what the relevant background
principles would dictate, compensation must be paid to sustain it.17
16

The principal "otherwise" that we have in mind is litigation absolving the State (or private
parties) of liability for the destruction of "real and personal property, in cases of actual
necessity, to prevent the spreading of a fire" or to forestall other grave threats to the lives
and property of others. Bowditch v. Boston, 101 U.S. 16, 18-19 (1880); see United States
v. Pacific R. Co., 120 U.S. 227, 238-239 (1887).
17

Of course, the State may elect to rescind its regulation and thereby avoid having to pay
compensation for a permanent deprivation. See First English Evangelical Lutheran
Church, 482 U. S., at 321. But "where the [regulation has] already worked a taking of all
use of property, no subsequent action by the government can relieve it of the duty to
provide compensation for the period during which the taking was effective." Ibid.
419

The "total taking" inquiry we require today will ordinarily entail (as the application of state
nuisance law ordinarily entails) analysis of, among other things, the degree of harm to
public lands and resources, or adjacent private property, posed by the claimant's
proposed activities, see, e.g., Restatement (Second) of Torts §§ 826, 827, the social
value of the claimant's activities and their suitability to the locality in question, see, e.g.,
id., §§ 828(a) and (b), 831, and the relative ease with which the alleged harm can be
avoided through measures taken by the claimant and the government (or adjacent private
landowners) alike, see, e.g., id., §§ 827(e), 828(c), 830. The fact that a particular use has
long been engaged in by similarly situated owners ordinarily imports a lack of any
common-law prohibition (though changed circumstances or new knowledge may make
what was previously permissible no longer so, see id., § 827, Comment g. So also does
the fact that other landowners, similarly situated, are permitted to continue the use denied
to the claimant.
It seems unlikely that common-law principles would have prevented the erection of any
habitable or productive improvements on petitioner's land; they rarely support prohibition
of the "essential use" of land, Curtin v. Benson, 222 U.S. 78, 86 (1911). The question,
however, is one of state law to be dealt with on remand. We emphasize that to win its
case South Carolina must do more than proffer the legislature's declaration that the uses
Lucas desires are inconsistent with the public interest, or the conclusory assertion that
they violate a common-law maxim such as sic utere tuo ut alienum non laedas. As we
have said, a "State, by ipse dixit, may not transform private property into public property
without compensation ...." Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,
164 (1980). Instead, as it would be required to do if it sought to restrain Lucas in a
commonlaw action for public nuisance, South Carolina must identify background
principles of nuisance and property law that prohibit the uses he now intends in the
circumstances in which the property is presently found. Only on this showing can the
State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management
Act is taking nothing.18

18

JUSTICE BLACKMUN decries our reliance on background nuisance principles at least
in part because he believes those principles to be as manipulable as we find the "harm
prevention" / "benefit conferral" dichotomy, see post, at 1054-1055. There is no doubt
some leeway in a court's interpretation of what existing state law permits-but not remotely
as much, we think, as in a legislative crafting of the reasons for its confiscatory regulation.
We stress that an affirmative decree eliminating all economically beneficial uses may be
defended only if an objectively reasonable application of relevant precedents would
exclude those beneficial uses in the circumstances in which the land is presently found.
420

The judgment is reversed, and the case is remanded for proceedings not inconsistent
with this opinion.
So ordered.
Questions and Comments
1.

Categorical Rule: After Lucas, if government regulation of wetlands denies a
landowner “all economically beneficial or productive use” of their property, the
government will be required to compensate the landowner. If the impact of the
government action is less than a denial of all economically beneficial or productive
use of property, though, the court will continue to use the ad hoc, three factor Penn
Central analysis to determine whether the government action is a taking.

2.

Denial of All Economically Beneficial or Productive Use: Did the Court provide
any direction regarding how to determine when government regulation denies “all
economically beneficial or productive use” of a landowner’s property? In a separate
statement, Justice Souter suggested that the determination that the state
regulation deprived Lucas of his entire economic interest in his property was
“highly questionable”, and Souter suggested that the Court should dismiss the writ
of certiorari and await a case to directly address the issue of what constitutes a
“total deprivation” of use. 505 U.S. at 1076, 1078. In his dissenting opinion, Justice
Blackmun labeled the determination “implausible”. 505 U.S. at 1036. Why did the
South Carolina Coastal Council never challenge the trial court’s determination that
the regulation denied the landowner all economically beneficial or productive use
of his property?

3.

Temporary v. Permanent Taking: David Lucas bought the lots at issue in this
litigation in 1986. The Beachfront Management Act, which limited Lucas’
development of the property, was enacted in 1988. In 1990, after Lucas challenged
the statute and government regulation as a taking, the Act was amended to
authorize landowners like Lucas to apply for a permit to develop their property.
Lucas never applied for the permit, but pressed forward with his takings challenge.
If the Supreme Court was reviewing Lucas’ challenge as a permanent taking claim,
would the challenge be ripe? The Court did not review the challenge as a
permanent taking claim but, rather, as a claim that the state regulation constituted
a “temporary taking” from the time that the Beachfront Management Act was
enacted until it was amended to provide an opportunity to seek a permit (19881990). In a portion of the opinion not reproduced above, the majority indicated that
Lucas could still apply for a permit even after the Supreme Court’s decision in the
case. If Lucas were to receive a permit to develop his property after the Court’s
decision, what damages could he recover for the temporary taking?

421

4.

An Exception to the Categorical Rule: Prior to the Lucas decision, it was
believed that there was a “noxious use” exception in takings jurisprudence,
whereby governments would not have to provide compensation, regardless of the
extent of economic harm caused by regulation, if the government was regulating
to prevent a “noxious use” of property. As the Lucas Court noted, the South
Carolina Coastal Council argued that regulation designed to prevent harm should
be treated differently than regulation to confer benefits on citizens. Although the
Lucas Court rejected that approach, how is the exception to the categorical rule
created by the Court different from the “noxious use” exception? Justice Blackmun,
in dissent, argues that the new test adopted by the Court could be as malleable as
the harm prevention/benefit conferral analysis that the Court was rejecting. What
“background principles of the State’s law of property and nuisance” will be
considered in determining that a regulated use of property is not “part of [the
landowner’s] title to begin with”, so that government regulation can extinguish that
use without paying compensation? Should the exception be limited to common law
principles or can it include state statutory provisions? In a concurring opinion,
Justice Kennedy suggested that reasonable expectations regarding property use
should be “understood in light of the whole of our legal tradition” and that the Court
should not limit its focus to the common law of nuisance and property. 505 U.S. at
1035. Did the Lucas Court find that background principles of South Carolina
nuisance or property law prohibited the uses of property prohibited by the
Beachfront Management Act?

5.

Background Principles in Wetlands Cases: Although the Lucas Court allows
the government to avoid paying compensation when prohibiting uses of property
that, based on background principles of state property or nuisance law, are not
part of the landowner’s title to begin with, that exception has had little influence in
wetlands cases so far. The Court of Federal Claims and the U.S. Court of Appeals
for the Federal Circuit have generally rejected claims that wetland filling activities
are nuisances which can be prohibited by the government without compensation.
See, e.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994);
Florida Rock Industries v. United States, 45 Fed. Cl. 21 (1999); Bowles v. United
States, 31 Fed. Cl. 37 (1994); Florida Rock Industries v. United States, 21 Cl. Ct.
161 (1990), vacated on other grounds, 18 F.3d 1560 (Fed. Cir. 1994), cert denied
513 U.S. 1109 (1995). While some state courts have viewed the “public trust”
doctrine as a background principle of state law that justifies regulation without
compensation, see Just v. Marinette County, 201 N.W.2d. 761 (Wis. 1972);
McQueen v. South Carolina Coastal Council, 580 S.E.2d 116 (S.C. 2003), the
Court of Federal Claims and the Federal Circuit have not adopted that approach.
For an outline of the “public trust” doctrine and a proposal for a new theoretical

422

framework for the doctrine, see Alexandra B. Klass, Modern Public Trust
Principles: Recognizing Rights and Integrating Standards, 82 Notre Dame L. Rev.
699 (2013). For an exploration of whether “background principles” can evolve to
incorporate natural capital and ecosystem services, see J.B. Ruhl, The
‘Background Principles’ of Natural Capital and Ecosystem services - Did Lucas
Open Pandora’s Box?, 22 J. Land Use & Envtl L. 525 (2007). Professor Timothy
M. Mulvaney also explores the scope of “background principles” in Foreground
Principles, 20 Geo. Mason L. Rev. 837 (2013). Professors Michael C. Blumm and
Lucus Ritchie explore the rise in categorical defenses to takings claims resulting
from the Lucas focus on “background principles” in Lucas’s Unlikely Legacy: The
Rise of Background Principles as Categorical Takings Defenses, 29 Harv. Envtl.
L. Rev. 321 (2005).
6.

Agins v. City of Tiburon: The Lucas Court noted that the Supreme Court, in Agins
v. City of Tiburon, 447 U.S. 255 (1980), held that government regulation can be a
taking if it does not substantially advance legitimate state interests or if it denies
an owner economically viable use of his land. Although the Supreme Court
routinely cited that test in takings decisions, suggesting that government regulation
that did not deny an owner economically viable use of his land could still be a taking
if the regulation did not substantially advance legitimate state interests, the Court
later held, in Lingle v. Chevron, U.S.A., 544 U.S. 528 (2005), that the requirement
that government regulation substantially advance legitimate state interests is
based on the Due Process clause, and is not part of the takings analysis. That
decision had little impact on wetlands taking litigation, since few challengers ever
asserted that the government regulation of wetlands did not substantially advance
legitimate government interests.

7.

Subsequent History: On remand, the South Carolina Supreme Court found that
there were no background principles of South Carolina law that limited Lucas’
construction of a home on his property, so that the restrictions on his development
constituted a temporary taking of his property. See Lucas v. South Carolina
Coastal Council, 424 S.E.2d 424, 23 E.L.R. 20297 (S.C. 1992). The South Carolina
Supreme Court then remanded the case to the trial court to make specific findings
of damages from the date of enactment of the Beachfront Management Act
through the date of the court’s order. Id. South Carolina ultimately settled the case
for $1.5 million, buying the two lots from Lucas for $425,000 each, and paying legal
fees, costs, and interest. See H. Jane Lehman, Case Closed: Settlement Ends
Property Rights Lawsuit, Chicago Tribune, July 25, 1993. The State subsequently
sold the lots to a private developer for $750,000. See Royal C. Gardner, Lawyers,
Swamps, and Money 207 (Island Press 2011). In 1996, a 4200 square foot home
was built on Lot 22, and it was valued at $2,124,999 in 2013, according to the
Charleston County tax records (search for 11 Beachwood East, Isle of Palms). In

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2001, a 3400 square foot home was built on Lot 24, and it was valued at
$2,700,000 in 2013. Id. (Search for 13 Beachwood East, Isle of Palms). Professor
Oliver Houck outlines the history of the Lucas litigation in detail in More Unfinished
Stories: Lucas, Atlanta Coalition, and Palila/Sweet Home, 75 U. Colo. L. Rev. 331
(2004).
IV.

Applying Lucas and Penn Central in the Wetlands Context

While Lucas created a categorical rule for total
deprivations of economically beneficial or productive
uses of property, which the Court of Federal Claims
has applied in one case involving the denial by the
Corps of a Section 404 permit, see Lost Tree Village
Corp. v. United States, No. 08-117L (Fed. Cl.
03/14/2014), most takings claims based on wetland
regulation continue to be analyzed under the Penn
Central analysis. As noted above, the analysis focuses
on the extent of economic impact on the landowner’s
property caused by the government action, the
interference with the landowner’s reasonable
investment backed expectations, and the character
of the government action.
In calculating the extent of economic impact, courts Photo 31 "Brass scales with cupped
generally compare the fair market value of the trays" by Toby Hudson - Own work.
landowner’s property immediately before the http://commons.wikimedia.org/wiki/Cat
government action challenged as a taking to the value egory:Unbalanced_scales_of_justice#me
of the property immediately after the action. See Florida diaviewer/File:Brass_scales_with_cuppe
d_trays.png [CC-BY-SA-3.0]
Rock Industries v. United States, 18 F.3d 1560 (Fed.
Cir. 1994), cert denied 513 U.S. 1109 (1995); Bowles v. United States, 31 Fed. Cl. 37
(1994). Courts are no more willing to create bright line rules regarding the extent of
economic impact that could trigger a taking in the wetlands context than in other contexts.
While cases where plaintiffs have prevailed on takings claims for wetland permit denials
usually involve reductions in property value of 90% or more, see Loveladies Harbor, Inc.
v. United States, 28 F.3d 1171 (Fed. Cir. 1994) (99% reduction); Florida Rock Industries
v. United States, 21 Cl. Ct. 161 (1990) (95% reduction) the Court of Federal Claims has
found that a 73% reduction in property value could constitute a taking of property, when
considered in light of the other Penn Central factors. See Florida Rock Industries v. United
States, 45 Fed. Cl. 21 (1999). While landowners frequently assert that Corps permit
denials require them to leave wetlands in a natural state and render their property
valueless, the increase in mitigation banking, creating opportunities to reap economic
benefits from restoring, enhancing, preserving or creating wetlands, may impact the

424

analysis of the economic impact of development restrictions in more cases.
For the second Penn Central factor, in reviewing the extent to which government
regulation interferes with a landowner’s reasonable investment-backed expectations,
courts focus on the regulatory landscape that was in place at the time that the landowner
acquired the property. Although the Supreme Court has rejected a bright line rule that
would prohibit landowners from recovering for a taking if the regulatory scheme that
allegedly triggers the taking was in place at the time the landowner acquired the property,
see Palazzolo v. Rhode Island, 533 U.S. 606 (2001), it is more difficult for the landowner
to prove that the government regulation interfered with reasonable investment backed
expectations in such a case. Thus, when a landowner acquired property after the Clean
Water Act Section 404 permit program was implemented and it was clear that the program
applied to wetlands, it will be more difficult for the landowner to prevail on a claim that
restrictions on development of the property based on the 404 program constitute a taking
than it will be for a landowner who acquired property before the Section 404 program was
implemented and applied to wetlands. After all, to the extent that it was clear, at the time
that the landowner acquired the property, that a permit would be required to develop the
property, any expectation that the property can be developed without obtaining the permit,
is unreasonable.
The final factor in the Penn Central analysis is the character of the government action.
As noted earlier, in focusing on this factor, courts often examine the “average reciprocity
of advantage” created by the government regulatory scheme. If a landowner receives a
benefit from restrictions placed on his property because other landowners are subject to
similar restrictions, courts will be less likely to find that the government restriction is a
taking. On the other hand, if courts feel that a landowner is being unfairly singled out and
forced to shoulder a significant share of the burden to protect a broad social interest,
courts will be more likely to find that the government restriction is a taking.
Questions and Comments
1.

Compensation: If a permit denial, a condition in a permit, or other land use
restriction in a wetlands protection program “takes” a landowner’s property, the
government will required to pay compensation for the restriction. To the extent that
the restriction deprives the landowner of all or almost of the property value, the
government can acquire title to the property in exchange for the payment of
compensation. However, if a government regulation only deprives a landowner of
70% of their property value, what should the remedy be? See Florida Rock
Industries v. United States, 45 Fed. Cl. 21 (1999).

2.

Temporary Takings: While landowners can recover compensation for temporary
takings caused by a government restriction on the use of property which is later

425

removed, courts have not found that the delay caused by the processing of a
Section 404 permit application constitutes a temporary taking. See Bay-Houston
Towing Co. v. United States, 58 Fed. Cl. 462 (2003). However, a landowner may
be able to recover compensation for damages suffered between the time that the
Corps denied the landowner a Section 404 permit and the time that the Corps
eventually issued the permit, following a judicial challenge to the initial permit
denial, see Resource Investments, Inc. v. United States, 85 Fed. Cl. 447 (2009),
or for the damages suffered between the time that the Corps issued a cease and
desist order and the time that a court remanded the matter to the Corps after a
judicial challenge. See Creppel v. United States, 30 Fed. Cl. 323 (1994), aff’d 41
F.3d 627 (Fed. Cir. 1994). To the extent that such claims are allowed, courts
analyze the claims under the Lucas or Penn Central frameworks, depending on
the severity of the deprivation of property use.
3.

Litigation Trends: The government prevailed in the first wetlands-related takings
lawsuit in 1970, Zabel v. Tabb, 430 F.2d 199 (1970), cert. denied 401 U.S. 910
(1971), as well as most of the takings lawsuits brought against it through the mid1980s. See, e.g., Deltona Corp. v. United States, 657 F.2d 1184 (Cl. Ct. 1981),
cert. denied, 455 U.S. 1017 (1982); Jentgen v. United States, 657 F.2d 1210 (Cl.
Ct. 1981), cert. denied, 455 U.S. 1017 (1982). From the mid-1980s through the
mid-1990s, courts found that Corps’ wetland permit denials constituted takings in
several cases, including two on the same day in 1990. See Florida Rock Industries
v. United States, 21 Cl. Ct. 161 (1990); Loveladies Harbor v. United States, 21 Cl.
Ct. 153 (1990). The United States fared better between 1994 and 2005, prevailing
in every wetlands taking lawsuit except one. See Robert Meltz, Wetlands and
Regulatory Takings, in Wetlands Law and Policy: Understanding Section 404 429
(American Bar Association, Section on Environment, Energy and Resources
2005). However, the government did not fare as well in the recent litigation
surrounding the Lost Tree Village development in Florida, discussed after the next
note.

4.

Parcel as a Whole: One issue that is significant for wetlands takings cases and
was raised in a footnote, but not resolved, in Lucas concerns the extent of the
property that courts examine when determining whether government regulation
constitutes a total deprivation of economically beneficial or productive use, for
Lucas, and that courts examine when determining the economic impact of
government regulation for Penn Central. If a person owns 100 acres of land that
includes 20 acres of wetlands, and the government regulatory scheme limits the
development of the 20 acres of wetlands, but does not limit the development of the
other 80 acres, should the court focus on the economic impact of the government
regulation on the 20 acres or the 80 acres? The Supreme Court has repeatedly
held that courts should focus their analysis on the “parcel as a whole”, see Tahoe

426

Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302
(2002); Penn Central Transportation Company v. New York City, 438 U.S. 104
(1978); but the Court has not provided concrete guidance on how to determine
what constitutes the “parcel as a whole.” In footnote 7 in Lucas, the Court did not
establish a bright line rule but noted, instead, that “[t]he answer to this difficult
question may lie in how the owner's reasonable expectations have been shaped
by the State's law of property- i.e, whether and to what degree the State's law has
accorded legal recognition and protection to the particular interest in land with
respect to which the takings claimant alleges a diminution in (or elimination of)
value.”
Although the Supreme Court focused on state property law as the basis for
determining the extent of property to be evaluated in a takings case, when a
landowner contemporaneously acquires or owns several lots in the vicinity of a lot
containing wetlands, the Court of Federal Claims and the U.S. Court of Appeals
for the Federal Circuit frequently focus on the expectations of the landowner and
the manner in which the landowner treated the property for development purposes
in determining whether the parcel to be evaluated is limited to the lot containing
the wetlands or whether the parcel includes other lots in the vicinity that the
landowner owns or acquired contemporaneously with the lot containing the
wetlands. See, e.g., Palm Beach Isles Associates v. United States, 208 F.3d 1374
(Fed. Cir. 2000); Forest Properties, Inc. v. United States, 177 F.3d 1360, 1365
(Fed. Cir. 1999).
The following case demonstrates the approach taken by the Federal Circuit.

427

Lost Tree Village Corporation v.
United States
43 E.L.R. 20012 (Fed. Cir. 2013)

Resources for the Case
Unedited Opinion (Findlaw)
Google Map of all the cases in the coursebook
Oral Argument - from Federal Circuit website

RADER, Chief Judge
The United States Court of Federal
Claims determined that the Army Corps of Engineers did not effect a regulatory taking
compensable under the Fifth Amendment when it denied Lost Tree Village Corporation's
application for a permit to fill wetlands on its 4.99 acre plat (Plat 57). In reaching this
conclusion, the Court of Federal Claims found Lost Tree's parcel as a whole includes Plat
57, a neighboring upland plat (Plat 55), and scattered wetlands in the vicinity owned by
Lost Tree at the time the permit was denied. Because the Court of Federal Claims erred
in its determination of the relevant parcel, this court reverses and remands for further
proceedings.
I
In 1968, Lost Tree Village Corporation (Lost Tree) entered an Option Agreement to
purchase approximately 2,750 acres of property on Florida's mid-Atlantic coast, near the
City of Vero Beach. The property covered by the Option Agreement encompasses a
barrier island on the Atlantic Ocean, which is bisected by the A-1-A Highway, and
stretches westward to interior land and islands on the Indian River. Lost Tree purchased
substantially all of the land covered by the Option Agreement in a series of transactions
during the period 1969-1974. In 1974, Lost Tree purchased the 4.99 acres now known as
Plat 57 as part of a transaction in which it acquired the entire peninsula on which Plat 57
is located (known as the Island of John's Island), Gem Island, and other parcels in and
along the Indian River.
Beginning in 1969 and continuing through the mid-1990s, Lost Tree developed
approximately 1,300 acres of the property purchased under the 1968 Option Agreement
into the upscale gated residential community of John's Island. The John's Island
community includes most of Lost Tree's holdings on the barrier island, Gem Island, and
the Island of John's Island. The John's Island community also includes some property that
was not covered by the 1968 Option Agreement and was never owned by Lost Tree. Lost
Tree built the infrastructure for the community, including utilities, sewage systems, and
the majority of the roads and bridges within the community. The community includes two
golf courses, a beach club, a private hotel, condominiums, and single family homes. * * *
In 1980, Lost Tree submitted to the Army Corps of Engineers (Corps) an application for
a permit under § 404 of the Clean Water Act * * * to make numerous infrastructure

428

improvements including construction of causeways connecting the barrier island, Gem
Island, and the Island of John's Island. The application also sought approval to dredge
canals and fill some wetland areas to create developable lots. Lost Tree's application was
accompanied by plans and drawings for its proposed development of the Island of John's
Island and Gem Island (the 1980 Development Plan). A drawing in the 1980 Development
Plan depicts a substantial portion of Plat 57, as well as other areas, shaded in green and
labeled "wildlife preserve." * * *
The Corps did not act on Lost Tree's 1980 permit application as submitted because the
State of Florida required numerous changes to Lost Tree's plans. Lost Tree submitted a
revised proposal to the Corps in 1982. The proposal stated that "all originally proposed
project features are being deleted from this application except the bridge from John[']s
[Island] to Gem Island and its approaches." * * * The Corps approved a modified version
of the 1982 application, and development of the Island of John's Island and Gem Island
proceeded throughout the 1980s and 1990s "in a manner that diverged in significant ways
from the 1980 Application." * * * During development, Lost Tree sought and received two
additional § 404 permits for infrastructure improvements and construction of canals, and
reserved various parcels as conservation easements by deed restrictions recorded in
favor of the local, state, or federal government. Plat 57 was not among the land dedicated
for conservation.
Plat 57 lies on Stingaree Point, a small peninsula located on the southwestern portion of
the Island of John's Island. Lost Tree developed Stingaree Point in 1985-1986. At that
time, the company built Stingaree Point Road, installed water and sewer lines, and
recorded Plat 40, which is comprised of six lots to the south and west of the road. Also in
1985, Lost Tree "stubbed out" water and sewer lines to Plat 40 and to unplatted land on
the eastern end of the Point that was later recorded as Plat 55. Lost Tree sold the six lots
on Plat 40 within a few years after the plat was recorded. Homes have been built on those
properties.
To east of Plat 40, on the north side of Stingaree Point Road, is the 4.99 acre tract
eventually recorded as Plat 57. Plat 57 consists of 1.41 acres of submerged lands and
3.58 acres of wetlands with some upland mounds installed by Florida's "Mosquito Control"
authority. To the east of Plat 57 is a mosquito control impoundment, a narrow, 323 foot
long shoulder along the north side of the road, and then Plat 55. Although Lost Tree
neither "stubbed out" nor recorded Plat 57 when it developed the rest of Stingaree Point,
an April 1986 appraisal stated that "Stingaree Point development is substantially
completed, with the exception of the entrance area, landscaping, and a final layer of
asphalt on the road." * * *
As the trial court found, Plat 57 was "ignored entirely" during Lost Tree's development of
Stingaree Point and the rest of John's Island. * * * In 1994, when "most knowledgeable

429

people considered development of the community of John's Island to have been
completed, the property constituting Plat 57 had not been platted, utilities had not been
extended to it, nor had it been dedicated to any use such as mitigation for a project on
other plats." * * *
Lost Tree did not consider Plat 57 for development until approximately 2002, when the
company learned it would obtain "mitigation credits" as a result of improvements a
neighboring landowner had agreed to make as part of a development project. Lost Tree
identified Plat 57 as a property that could be developed profitably to exploit the mitigation
credits. In August 2002, Lost Tree filed an application with the Town of Indian River
Shores requesting approval for a preliminary plat and permission to fill 2.13 acres of
wetland on the property. The company then filed a corresponding application for a § 404
wetlands fill permit from the Corps. Lost Tree obtained all state and local approvals to
develop Plat 57 into a site for one residential home. The Corps, however, denied Lost
Tree's § 404 permit application in August 2004, stating that less environmentally
damaging alternatives were available, and that Lost Tree "has had very reasonable use
of its land at John's Island." * * *
II
The Court of Federal Claims held a seven-day trial, after which it denied Lost Tree's
takings claim. The trial court rejected the government's argument that the entire John's
Island community is the relevant parcel for the takings analysis, finding Lost Tree's
development of Plat 57 was "physically and temporally remote from" its development of
the rest of the community. * * * The court also rejected Lost Tree's argument that the
relevant parcel was Plat 57 alone. Instead, the court determined that the relevant parcel
is "Plat 57 and Plat 55, plus those scattered wetlands still owned by Lost Tree within the
community of John's Island." * * * The court found that, while Plats 55 and 57 are "distinct
legal parcels, they are undoubtedly contiguous." * * * Further, it found Lost Tree has
comparable usage objectives for the two plats, because it hopes to sell for profit the lots
on each plat.
Based on its relevant parcel determination, the trial court found the Corps' denial of the
§ 404 permit application for Plat 57 "diminished the value of Lost Tree's property by
approximately 58.4%." * * * After analyzing the factors set forth in Penn Central
Transportation Co. v. City of New York * * * , the court found the diminution in value
insufficient support a takings claim. Lost Tree appeals, and this court has jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).

430

III
***
Lost Tree asserts the denial of a § 404 permit to fill wetlands on Plat 57 by the Corps
effectively deprived Lost Tree of its property such that it is entitled to just compensation
under the Fifth Amendment. While the Government's authority to "prevent a property
owner from filling or otherwise injuring or destroying vital wetlands" is unquestioned, the
issue is whether the denial of a fill permit for a particular project imposes a
disproportionate loss on the affected landowner. Loveladies Harbor, Inc. v. United States,
28 F.3d 1171, 1175 (Fed. Cir. 1994) * * *
Regulations requiring land to be left substantially in its natural state – such as when a
wetlands fill permit is denied – may sometimes "leave the owner of land without
economically beneficial or productive options for its use." Lucas v. S. Carolina Coastal
Council, 505 U.S. 1003, 1018 (1992). In the "relatively rare situations where the
government has deprived a landowner of all economically beneficial uses," the regulatory
action is recognized as a "categorical taking" that must be compensated. Id.; see Florida
Rock Indus., Inc. v. United States, 18 F.3d 1560, 1564-65 (Fed. Cir. 1994). * * *
Most regulatory takings cases, however, are analyzed under the framework set out in
Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). * * *
In many cases, as here, the definition of the relevant parcel of land is a crucial antecedent
that determines the extent of the economic impact wrought by the regulation. Keystone
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 496 (1987) ("Because our test for
regulatory taking requires us to compare the value that has been taken from the property
with the value that remains in the property, one of the critical questions is determining
how to define the unit of property 'whose value is to furnish the denominator of the
fraction.'") * * * ; Palm Beach Isles, 208 F.3d at 1380 (discussing the "denominator
problem"). Definition of the relevant parcel affects not only whether a particular regulation
is a categorical taking under Lucas, but also affects the Penn Central inquiry into the
economic impact of the regulation on the claimant and on investment-backed
expectations. The relevant parcel determination is a question of law based on underlying
facts. Palm Beach Isles, 208 F.3d at 1380.
The Supreme Court has not settled the question of how to determine the relevant parcel
in regulatory takings cases, but it has provided some helpful guideposts. See Lucas, 505
U.S. at 1016 n.7. First, the property interest taken is not defined in terms of the regulation
being challenged; the takings analysis must focus on "the parcel as a whole."
* * * Second, the "parcel as a whole" does not extend to all of a landowner's disparate
holdings in the vicinity of the regulated property. Lucas, 505 U.S. 1003, 1017 n.7, 112

431

S. Ct. 2886, 120 L. Ed. 2d 798 (characterizing as "extreme" and "unsupportable" the state
court's analysis in Penn Central Transportation Co. v. New York City, 42 N.Y.2d 324, 33334, (N.Y. 1977) aff'd, 438 U.S. 104 (1978), which examined the diminution in a particular
parcel's value in light of the total value of the takings claimant's other holdings in the
vicinity).
This court has taken a "flexible approach, designed to account for factual nuances," in
determining the relevant parcel where the landowner holds (or has previously held) other
property in the vicinity. Loveladies, 28 F.3d at 1181. In this inquiry, the "critical issue is
'the economic expectations of the claimant with regard to the property.'" Norman v. United
States, 429 F.3d 1081, 1091 (Fed. Cir. 2005) (quoting Forest Props., Inc. v. United States,
177 F.3d 1360, 1365 (Fed. Cir.1999)). When a "developer treats several legally distinct
parcels as a single economic unit, together they may constitute the relevant parcel."
Forest Props., 177 F.3d at 1365 (holding relevant parcel included 53 upland acres and 9
acres of lake bottom where tracts were acquired at different times but "economic reality"
was that owner treated the property as single integrated project).
Conversely, even when contiguous land is purchased in a single transaction, the relevant
parcel may be a subset of the original purchase where the owner develops distinct parcels
at different times and treats the parcels as distinct economic units. Palm Beach Isles, 208
F.3d at 1381 (holding relevant parcel consisted of 50.7 acre wetland portion of original
311.7 acre purchase where landowner "never planned to develop the parcels as a single
unit," and sold 261 acres of upland, oceanfront property prior to enactment of relevant
regulatory scheme); Loveladies, 28 F.3d at 1181 (holding relevant parcel consisted of
12.5 acres from original 250 acre purchase where landowner developed and sold 199
acres before regulatory scheme was enacted and deeded remaining 38.5 acres to state
in exchange for development permits).
Here, Lost Tree did not treat Plat 57 as part of the same economic unit as other land it
developed into the John's Island community. The trial court correctly found that Lost Tree
did not include Plat 57 in its formal or informal development plans for the community.
* * * The only proposal that ever addressed Plat 57 was the unapproved 1980 Permit
Application. While the 1980 application proposed dedicating Plat 57 as a wildlife preserve
to mitigate other development, Lost Tree withdrew that application. Thus, when the Corps
eventually granted Lost Tree's permit application, Plat 57 had no designated use.
The government argues Plat 57 was informally part of the John's Island development
because Lost Tree intentionally included undeveloped land within the perimeter of its
gated community. Lost Tree advertised such "open spaces" as part of the unique
environment offered by John's Island. However, Lost Tree expressly planned open
spaces in its development of the community, through the use of large lots for single family
homes, and inclusion of golf courses and dedicated conservation wetlands. Lost Tree's

432

failure to plan for Plat 57 even as open space supports the trial court's conclusion that the
parcel was "ignored"--rather than intentionally left undeveloped--when the company
carried out the John's Island project. * * *
Lost Tree's actual course of development further demonstrates that it did not treat Plat 57
as part of the John's Island community. Lost Tree did not seek a fill permit or run utility
service to the area that became Plat 57 when it developed the rest of Stingaree Point.
Plat 55, by contrast, was brought to grade and water and sewer lines were stubbed out
to that area. Although the company did not immediately plat the land that became Plat
55, it developed it in the mid-1980s in preparation for eventual sale as part of the John's
Island community. Plat 57, by contrast, was absent from Lost Tree's development plans
until 2002--at least seven years after the development of the John's Island community
was considered complete. * * *
Indeed, the record shows that after 1982, Lost Tree was essentially unaware of its
ownership of Plat 57 until the company prepared an inventory of its residual properties in
1995. At that time, Lost Tree had already transitioned its business from real estate
development to focus on investment in commercial properties. The company also was
working to divest itself of remaining real estate holdings in the vicinity of John's Island.
When the Corps denied Lost Tree's § 404 permit application in 2002, the company held
only the "West Acreage," which lies well outside the John's Island community, Plat 55,
Plat 57, and scattered wetlands within John's Island. The objective evidence of Lost
Tree's actions demonstrates that the company considered the John's Island community
completed long before it proposed to fill wetlands on Plat 57. The company's long hiatus
from development efforts reinforces the conclusion that Lost Tree did not consider Plat
57 part of the same economic unit as the John's Island community.
In short, this court sees no error in the trial court's factual findings that "Lost Tree's belated
decision to develop Plat 57 was not part of its planned actual or projected use of the
property constituting the community of John's Island." * * * This finding, however, conflicts
with the court's conclusion that the relevant parcel comprises not just Plat 57, but also
Plat 55 and "scattered wetlands still owned by Lost Tree within the community of John's
Island." * * * Unlike Plat 57, Lost Tree treated Plat 55 as part of the John's Island
community, developing it for eventual sale as three single family home sites at the same
time that it developed Plat 40 on Stingaree Point.
The Court of Federal Claims erred by aggregating Plat 57, Plat 55, and the scattered
wetlands as the relevant parcel. The only links between the two plats identified by the trial
court are: 1) they are connected by the 323 foot strip of land owned by Lost Tree and
therefore "undoubtedly contiguous," and 2) both currently are held with the "usage
objective[ ] . . . to sell for profit the lots" on each plat. * * * Similarly, the scattered wetlands
are only linked to Plat 57 by their geographic location within the gated community of

433

John's Island. Here, the mere fact that the properties are commonly owned and located
in the same vicinity is an insufficient basis on which to find they constitute a single parcel
for purposes of the takings analysis. * * * Loveladies, 28 F.3d at 1180 (holding relevant
parcel excludes 6.4 acres of previously-developed uplands purchased in same
transaction as regulated parcel and owned by claimant when § 404 permit was denied).
After a careful review of the entire record, this court determines that the relevant parcel
is Plat 57 alone. The trial court's factual findings support the conclusion that Lost Tree
had distinct economic expectations for each of Plat 57, Plat 55, and its scattered wetland
holdings in the vicinity. Because the Court of Federal Claims erred in its determination of
the relevant parcel, this court reverses the judgment and remands for further proceedings.
On remand, the court first should determine the loss in economic value to Plat 57 suffered
by Lost Tree as a result of the Corps' denial of the § 404 permit, and then apply the
appropriate framework to determine whether a compensable taking occurred. In
determining the loss in value to Plat 57, the court may revisit the property values it
adopted in the course of determining the impact of the Plat 57 permit denial on Lost Tree
under its definition of the relevant parcel. * * *
IV
For the reasons set forth above, the judgment of the Court of Federal Claims is reversed
and remanded for further proceedings.
Questions and Comments
1.

The Remand: On remand, the Court of Federal Claims concluded that the value
of Plat 57 in light of the Corps’ permit denial was $27,500, which the court
characterized as “a nominal amount that does not reflect any economic use.” See
Lost Tree Village Corp. v. United States, No. 08-117L (Fed. Cl. 03/14/2014). Thus,
the court held that the Corps’ action was a categorical taking under Lucas. Despite
reaching that conclusion, the court also analyzed the Corps’ action under the Penn
Central analysis. For purposes of that analysis, the court suggested that the 99.4%
reduction in property value that resulted from the Corps’ permit denial was a factor
that weighed in favor of finding a taking. Id. The court also suggested that the
character of the government action weighed in favor of finding a taking, because
the court was persuaded that the landowner was singled out for adverse treatment
in the case, and that the Corps would have issued a permit for the proposed
development if a different develop had applied for the permit. Id. The Court of
Appeals for the Federal Circuit affirmed the court’s holding on June 1, 2015. See
Lost Tree Village Corp. v. United States, 787 F.3d 1111 (Fed. Cir. 2015).

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2.

Strategic Behavior: Justice Stevens, in a dissenting opinion in Lucas, predicted
that the Court’s decision in that case could be manipulated in light of the lack of a
clear definition of the “parcel as a whole.” 505 U.S. at 1065. Stevens predicted,
“developers and investors may market specialized estates to take advantage of
the Court’s new rule. The smaller the estate, the more likely that a regulatory
change will effect a total taking. Thus, an investor may, for example, purchase the
right to build a multifamily home on a specific lot * * * ”

The Supreme Court provided clarification regarding the manner in which courts should
determine the extent of the “parcel as a whole” in the following case, decided in June
2017.
Murr v. Wisconsin

Resources for the Case

582 U.S. ___ (2017)
Justice Kennedy delivered the opinion of
the Court.

Unedited opinion (From Justia)
Google Map of all the cases in the coursebook
Oral argument audio - from the Oyez Project
Pacific Legal Foundation website re: Murr

The classic example of a property taking by the government is when the property has
been occupied or otherwise seized. In the case now before the Court, petitioners contend
that governmental entities took their real property—an undeveloped residential lot—not
by some physical occupation but instead by enacting burdensome regulations that forbid
its improvement or separate sale because it is classified as substandard in size. The
relevant governmental entities are the respondents.
Against the background justifications for the challenged restrictions, respondents contend
there is no regulatory taking because petitioners own an adjacent lot. The regulations, in
effecting a merger of the property, permit the continued residential use of the property
including for a single improvement to extend over both lots. This retained right of the
landowner, respondents urge, is of sufficient offsetting value that the regulation is not
severe enough to be a regulatory taking. To resolve the issue whether the landowners
can insist on confining the analysis just to the lot in question, without regard to their
ownership of the adjacent lot, it is necessary to discuss the background principles that
define regulatory takings.

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I
A
The St. Croix River originates in northwest Wisconsin and flows approximately 170 miles
until it joins the Mississippi River, forming the boundary between Minnesota and
Wisconsin for much of its length. The lower portion of the river slows and widens to create
a natural water area known as Lake St. Croix. Tourists and residents of the region have
long extolled the picturesque grandeur of the river and surrounding area. * * *
Under the Wild and Scenic Rivers Act, the river was designated, by 1972, for federal
protection. * * * The law required the States of Wisconsin and Minnesota to develop “a
management and development program” for the river area. * * * In compliance, Wisconsin
authorized the State Department of Natural Resources to promulgate rules limiting
development in order to “guarantee the protection of the wild, scenic and recreational
qualities of the river for present and future generations.” * * *
Petitioners are two sisters and two brothers in the Murr family. Petitioners’ parents
arranged for them to receive ownership of two lots the family used for recreation along
the Lower St. Croix River in the town of Troy, Wisconsin. The lots are adjacent, but the
parents purchased them separately, put the title of one in the name of the family business,
and later arranged for transfer of the two lots, on different dates, to petitioners. The lots,
which are referred to in this litigation as Lots E and F, are described in more detail below.
For the area where petitioners’ property is located, the Wisconsin rules prevent the use
of lots as separate building sites unless they have at least one acre of land suitable for
development. * * * A grandfather clause relaxes this restriction for substandardlots which
were “in separate ownership from abutting lands” on January 1, 1976, the effective date
of the regulation. * * * The clause permits the use of qualifying lots as separate building
sites. The rules also include a merger provision, however, which provides that adjacent
lots under common ownership may not be “sold or developed as separate lots” if they do
not meet the size requirement. * * * The Wisconsin rules require localities to adopt parallel
provisions, * * * so the St. Croix County zoning ordinance contains identical restrictions,
* * * The Wisconsin rules also authorize the local zoning authority to grant variances from
the regulations where enforcement would create “unnecessary hardship.” * * *
B
Petitioners’ parents purchased Lot F in 1960 and built a small recreational cabin on it. In
1961, they transferred title to Lot F to the family plumbing company. In 1963, they
purchased neighboring Lot E, which they held in their own names.

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The lots have the same topography. A steep bluff cuts through the middle of each, with
level land suitable for development above the bluff and next to the water below it. The line
dividing Lot E from Lot F runs from the riverfront to the far end of the property, crossing
the blufftop along the way. Lot E has approximately 60 feet of river frontage, and Lot F
has approximately 100 feet. Though each lot is approximately 1.25 acres in size, because
of the waterline and the steep bank they each have less than one acre of land suitable
for development. Even when combined, the lots’ buildable land area is only 0.98 acres
due to the steep terrain.
The lots remained under separate ownership, with Lot F owned by the plumbing company
and Lot E owned by petitioners’ parents, until transfers to petitioners. Lot F was conveyed
to them in 1994, and Lot E was conveyed to them in 1995. * * (There are certain
ambiguities in the record concerning whether the lots had merged earlier, but the parties
and the courts below appear to have assumed the merger occurred upon transfer to
petitioners.)
A decade later, petitioners became interested in moving the cabin on Lot F to a different
portion of the lot and selling Lot E to fund the project. The unification of the lots under
common ownership, however, had implicated the state and local rules barring their
separate sale or development. Petitioners then sought variances from the St. Croix
County Board of Adjustment to enable their building and improvement plan, including a
variance to allow the separate sale or use of the lots. The Board denied the requests, and
the state courts affirmed in relevant part. In particular, the Wisconsin Court of Appeals
agreed with the Board’s interpretation that the local ordinance “effectively merged” Lots
E and F, so petitioners “could only sell or build on the single larger lot.” * * *
Petitioners filed the present action in state court, alleging that the state and county
regulations worked a regulatory taking by depriving them of “all, or practically all, of the
use of Lot E because the lot cannot be sold or developed as a separate lot.” * * * The
parties each submitted appraisal numbers to the trial court. Respondents’ appraisal
included values of $698,300 for the lots together as regulated; $771,000 for the lots as
two distinct buildable properties; and $373,000 for Lot F as a single lot with improvements.
* * * Petitioners’ appraisal included an unrebutted, estimated value of $40,000 for Lot E
as an undevelopable lot, based on the counterfactual assumption that it could be sold as
a separate property. * * *
The Circuit Court of St. Croix County granted summary judgment to the State, explaining
that petitioners retained “several available options for the use and enjoyment of their
property.” * * * For example, they could preserve the existing cabin, relocate the cabin, or
eliminate the cabin and build a new residence on Lot E, on Lot F, or across both lots. The
court also found petitioners had not been deprived of all economic value of their property.
Considering the valuation of the property as a single lot versus two separate lots, the

437

court found the market value of the property was not significantly affected by the
regulations because the decrease in value was less than 10 percent. * * *
The Wisconsin Court of Appeals affirmed. The court explained that the regulatory takings
inquiry required it to “ ‘first determine what, precisely, is the property at issue.’ * * * Relying
on Wisconsin Supreme Court precedent * * * , the Court of Appeals rejected petitioners’
request to analyze the effect of the regulations on Lot E only. Instead, the court held the
takings analysis “properly focused” on the regulations’ effect “on the Murrs’ property as a
whole”—that is, Lots E and F together. * * *
Using this framework, the Court of Appeals concluded the merger regulations did not
effect a taking. In particular, the court explained that petitioners could not reasonably have
expected to use the lots separately because they were “ ‘charged with knowledge of the
existing zoning laws’ ” when they acquired the property. * * * Thus, “even if [petitioners]
did intend to develop or sell Lot E separately, that expectation of separate treatment
became unreasonable when they chose to acquire Lot E in 1995, after their having
acquired Lot F in 1994.” * * * The court also discounted the severity of the economic
impact on petitioners’ property, recognizing the Circuit Court’s conclusion that the
regulations diminished the property’s combined value by less than 10 percent. The
Supreme Court of Wisconsin denied discretionary review. This Court granted certiorari *
* *.
II
***
B
This case presents a question that is linked to the ultimate determination whether a
regulatory taking has occurred: What is the proper unit of property against which to assess
the effect of the challenged governmental action? Put another way, “[b]ecause our test
for regulatory taking requires us to compare the value that has been taken from the
property with the value that remains in the property, one of the critical questions is
determining how to define the unit of property ‘whose value is to furnish the denominator
of the fraction.’ * * *
Defining the property at the outset, however, should not necessarily preordain the
outcome in every case. In some, though not all, cases the effect of the challenged
regulation must be assessed and understood by the effect on the entire property held by
the owner, rather than just some part of the property that, considered just on its own, has
been diminished in value. This demonstrates the contrast between regulatory takings,
where the goal is usually to determine how the challenged regulation affects the

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property’s value to the owner, and physical takings, where the impact of physical
appropriation or occupation of the property will be evident.
While the Court has not set forth specific guidance on how to identify the relevant parcel
for the regulatory taking inquiry, there are two concepts which the Court has indicated
can be unduly narrow.
First, the Court has declined to limit the parcel in an artificial manner to the portion of
property targeted by the challenged regulation. * * *
The second concept about which the Court has expressed caution is the view that
property rights under the Takings Clause should be coextensive with those under state
law. Although property interests have their foundations in state law, the Palazzolo Court
reversed a state court decision that rejected a takings challenge to regulations that
predated the landowner’s acquisition of title. * * * The Court explained that States do not
have the unfettered authority to “shape and define property rights and reasonable
investment-backed expectations,” leaving landowners without recourse against
unreasonable regulations. * * *
By the same measure, defining the parcel by reference to state law could defeat a
challenge even to a state enactment that alters permitted uses of property in ways
inconsistent with reasonable investment-backed expectations. For example, a State
might enact a law that consolidates nonadjacent property owned by a single person or
entity in different parts of the State and then imposes development limits on the aggregate
set. If a court defined the parcel according to the state law requiring consolidation, this
improperly would fortify the state law against a takings claim, because the court would
look to the retained value in the property as a whole rather than considering whether
individual holdings had lost all value.
III
A
As the foregoing discussion makes clear, no single consideration can supply the exclusive
test for determining the denominator. Instead, courts must consider a number of factors.
These include the treatment of the land under state and local law; the physical
characteristics of the land; and the prospective value of the regulated land. The endeavor
should determine whether reasonable expectations about property ownership would lead
a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as
separate tracts. The inquiry is objective, and the reasonable expectations at issue derive
from background customs and the whole of our legal tradition. * * *

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First, courts should give substantial weight to the treatment of the land, in particular how
it is bounded or divided, under state and local law. The reasonable expectations of an
acquirer of land must acknowledge legitimate restrictions affecting his or her subsequent
use and dispensation of the property. * * * A valid takings claim will not evaporate just
because a purchaser took title after the law was enacted. See Palazzolo, 533 U.S., at
627 (some “enactments are unreasonable and do not become less so through passage
of time or title”). A reasonable restriction that predates a landowner’s acquisition,
however, can be one of the objective factors that most landowners would reasonably
consider in forming fair expectations about their property. * * * In a similar manner, a use
restriction which is triggered only after, or because of, a change in ownership should also
guide a court’s assessment of reasonable private expectations.
Second, courts must look to the physical characteristics of the landowner’s property.
These include the physical relationship of any distinguishable tracts, the parcel’s
topography, and the surrounding human and ecological environment. In particular, it may
be relevant that the property is located in an area that is subject to, or likely to become
subject to, environmental or other regulation. Cf. Lucas, 505 U.S. at 1035 (Kennedy, J.,
concurring) (“Coastal property may present such unique concerns for a fragile land
system that the State can go further in regulating its development and use than the
common law of nuisance might otherwise permit”).
Third, courts should assess the value of the property under the challenged regulation,
with special attention to the effect of burdened land on the value of other holdings. Though
a use restriction may decrease the market value of the property, the effect may be
tempered if the regulated land adds value to the remaining property, such as by increasing
privacy, expanding recreational space, or preserving surrounding natural beauty. A law
that limits use of a landowner’s small lot in one part of the city by reason of the landowner’s
nonadjacent holdings elsewhere may decrease the market value of the small lot in an
unmitigated fashion. The absence of a special relationship between the holdings may
counsel against consideration of all the holdings as a single parcel, making the restrictive
law susceptible to a takings challenge. On the other hand, if the landowner’s other
property is adjacent to the small lot, the market value of the properties may well increase
if their combination enables the expansion of a structure, or if development restraints for
one part of the parcel protect the unobstructed skyline views of another part. That, in turn,
may counsel in favor of treatment as a single parcel and may reveal the weakness of a
regulatory takings challenge to the law.
State and federal courts have considerable experience in adjudicating regulatory takings
claims that depart from these examples in various ways. The Court anticipates that in
applying the test above they will continue to exercise care in this complex area.
***

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IV
Under the appropriate multifactor standard, it follows that for purposes of determining
whether a regulatory taking has occurred here, petitioners’ property should be evaluated
as a single parcel consisting of Lots E and F together.
First, the treatment of the property under state and local law indicates petitioners’ property
should be treated as one when considering the effects of the restrictions. As the
Wisconsin courts held, the state and local regulations merged Lots E and F. * * * The
decision to adopt the merger provision at issue here was for a specific and legitimate
purpose, consistent with the widespread understanding that lot lines are not dominant or
controlling in every case. * * * Petitioners’ land was subject to this regulatory burden,
moreover, only because of voluntary conduct in bringing the lots under common
ownership after the regulations were enacted. As a result, the valid merger of the lots
under state law informs the reasonable expectation they will be treated as a single
property.
Second, the physical characteristics of the property support its treatment as a unified
parcel. The lots are contiguous along their longest edge. Their rough terrain and narrow
shape make it reasonable to expect their range of potential uses might be limited. * * *
(“[Petitioners] asserted Lot E could not be put to alternative uses like agriculture or
commerce due to its size, location and steep terrain”). The land’s location along the river
is also significant. Petitioners could have anticipated public regulation might affect their
enjoyment of their property, as the Lower St. Croix was a regulated area under federal,
state, and local law long before petitioners possessed the land.
Third, the prospective value that Lot E brings to Lot F supports considering the two as
one parcel for purposes of determining if there is a regulatory taking. Petitioners are
prohibited from selling Lots E and F separately or from building separate residential
structures on each. Yet this restriction is mitigated by the benefits of using the property
as an integrated whole, allowing increased privacy and recreational space, plus the
optimal location of any improvements. * * * (“They have an elevated level of privacy
because they do not have close neighbors and are able to swim and play volleyball at the
property”).
The special relationship of the lots is further shown by their combined valuation. Were Lot
E separately saleable but still subject to the development restriction, petitioners’ appraiser
would value the property at only $40,000. We express no opinion on the validity of this
figure. We also note the number is not particularly helpful for understanding petitioners’
retained value in the properties because Lot E, under the regulations, cannot be sold
without Lot F. The point that is useful for these purposes is that the combined lots are
valued at $698,300, which is far greater than the summed value of the separate regulated

441

lots (Lot F with its cabin at $373,000, according to respondents’ appraiser, and Lot E as
an undevelopable plot at $40,000, according to petitioners’ appraiser). The value added
by the lots’ combination shows their complementarity and supports their treatment as one
parcel.
The State Court of Appeals was correct in analyzing petitioners’ property as a single unit.
Petitioners allege that in doing so, the state court applied a categorical rule that all
contiguous, commonly owned holdings must be combined for Takings Clause analysis. *
* * This does not appear to be the case, however, for the precedent relied on by the Court
of Appeals addressed multiple factors before treating contiguous properties as one
parcel. * * * The judgment below, furthermore, may be affirmed on any ground permitted
by the law and record. See Thigpen v. Roberts, 468 U.S. 27, 30 (1984). To the extent the
state court treated the two lots as one parcel based on a bright-line rule, nothing in this
opinion approves that methodology, as distinct from the result.
Considering petitioners’ property as a whole, the state court was correct to conclude that
petitioners cannot establish a compensable taking in these circumstances. Petitioners
have not suffered a taking under Lucas, as they have not been deprived of all
economically beneficial use of their property. * * * They can use the property for residential
purposes, including an enhanced, larger residential improvement. * * * . The property has
not lost all economic value, as its value has decreased by less than 10 percent. * * *
Petitioners furthermore have not suffered a taking under the more general test of Penn
Central. * * * The expert appraisal relied upon by the state courts refutes any claim that
the economic impact of the regulation is severe. Petitioners cannot claim that they
reasonably expected to sell or develop their lots separately given the regulations which
predated their acquisition of both lots. Finally, the governmental action was a reasonable
land-use regulation, enacted as part of a coordinated federal, state, and local effort to
preserve the river and surrounding land.
Like the ultimate question whether a regulation has gone too far, the question of the
proper parcel in regulatory takings cases cannot be solved by any simple test. * * * Courts
must instead define the parcel in a manner that reflects reasonable expectations about
the property. Courts must strive for consistency with the central purpose of the Takings
Clause: to “bar Government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole.” * * * Treating
the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and
this supports the conclusion that no regulatory taking occurred here.
The judgment of the Wisconsin Court of Appeals is affirmed.
It is so ordered.

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Questions and Comments
1.

Federal Circuit Precedent: In cases such as Lost Tree Village, supra, the Federal
Circuit focused heavily on “the economic expectations of the claimant with regard
to the property” in determining how to identify the “parcel as a whole.” That
approach accords property owners with significant control over the manner in
which the parcel is defined for takings analysis. Is it likely that the Federal Circuit
can continue to focus as heavily on the landowners’ economic expectations in
determining the extent of the “parcel as a whole” after Murr?

2.

State property law: In a footnote in Lucas, the Supreme Court suggested that the
manner in which courts determine the extent of the “parcel as a whole” “may lie in
how the owner’s reasonable expectations have been shaped by the State’s law of
property – i.e., whether and to what degree the State’s law has accorded legal
recognition and protection to the particular interest in land with respect to which
the takings claimant alleges a diminution in (or elimination of) value.” Is the Court’s
decision in Murr based simply on the fact that the two lots owned by the petitioners
were merged for purposes of redevelopment under the State’s property laws?
What problems might be raised by relying solely on the State’s property laws to
define the extent of the “parcel as a whole”? Petitioners argued that the Court
should adopt a bright line test for determining the extent of the “parcel as a whole”
based simply on the lot lines established for the two parcels under state law.
Justice Roberts, in a dissenting opinion, agreed. What are the flaws with that
approach in a case like this? Does the Court’s multi-factor test give governments
too much power to shape the contours of the “parcel as a whole” for takings
purposes to reduce the likelihood that compensation will be due?

3.

Physical characteristics / conservation: One of the three factors identified by
the Court as relevant for determining the extent of the “parcel as a whole” was the
physical characteristics of the property, including whether it is located in an area
that is subject to, or likely to become subject to, environmental or other regulation.
How might this impact the ability of landowners to prevail in future takings cases
challenging environmental restrictions on land use?

4.

Reciprocity of advantage: In analyzing the third factor of its “parcel as a whole”
test, the Court suggests that “courts should assess the value of the property under
the challenged regulation, with special attention to the effect of burdened land on
the value of other holdings.” This is a factor that courts also consider in the multifactor Penn Central analysis, after the “parcel as a whole” is identified, to determine
whether government regulation has “gone too far”, so that the government must

443

pay the landowner compensation for a taking. Justice Roberts, in dissent, argues
that the majority’s decision allows the government to stack the deck against
landowners by focusing on the purposes of the government’s regulation in both the
“parcel as a whole” analysis and in the Penn Central takings analysis.
5.

Justice Thomas’ dissent: In a solo dissenting opinion that adopts an extreme
constitutional position, Justice Thomas questioned whether the Takings Clause,
based on the drafters’ original intent, should be limited to physical appropriation
cases and whether it is more appropriate to analyze regulatory restrictions on land
use under the Fifth and Fourteenth Amendments.

444

Hypothetical
Toby Mercer bought 100 acres of land in Monroe County, Georgia in 1970 from Lucy Tift
for $100,000. Lucy sold the land, the Tift's family farm, when her father, Herschel, died. In
1985, Mercer subdivided the property into 75 lots, ranging in size from ½ acre to 2 acres,
and a 10 acre lot, which he planned to set aside as a nature preserve for the subdivision.
Between 1985 and 1998, Mercer developed or sold all of the lots, other than the 10 acre
lot, for $1.5 million. In 2008, he decided to develop the remaining 10 acre lot. At that time,
he subdivided the lot into 10 lots, ranging in size from ½ acre to an acre, and a 2 acre lot.
He sold the 10 lots for $200,000 and sought a Clean Water Act Section 404 permit from
the Corps of Engineers to fill the entire 2 acres of wetlands on the remaining lot, in order to
build a house on the property.
During the public hearings on Mercer's proposal, Maggie Green vigorously protested the
permit because she owned an organic farm on the property adjacent to Mercer's property
and Mercer's proposal to fill the wetlands on his property would greatly increase flooding
on her property and destroy her farm. Although Mercer and the Corps discussed other
development options that would impact fewer acres of wetlands, the Corps ultimately told
Mercer that they would not authorize him to fill any of the wetlands on his property, and
they denied his permit application.
Mercer is upset because the property can now only be used as a nature preserve. A realtor
he retained has indicated that the property is worth about $8,000, but would be worth about
$130,000, if he could build a house on the property. Mercer files a lawsuit against the Corps
of Engineers in the U.S. Court of Federal Claims, alleging that the denial of his permit
application constitutes a taking of his property. Should the court award Mercer
compensation for a taking of his property?

V.

Mitigation, Permit Conditions and Exactions

Although most takings challenges in the wetlands context involve permit denials,
conditions included in a permit, such as mitigation requirements, can also be challenged
as takings based on a line of Supreme Court decisions that prohibit “exactions” takings.
In Nollan v. California Coastal Commission, 483 U.S. 825, 836-37 (1987), when a
landowner challenged the California Coastal Commission’s decision to require the
landowner to provide an easement for public beach access as a condition of approving a
permit to allow construction of a house on the beach, the Supreme Court held that there
must be an “essential nexus” between a legitimate state interest and a condition imposed
in a permit or the permit condition will constitute a taking. The Court began its analysis by
indicating that if California had simply required the Nollans to provide an easement for
public access outside of the permitting context, it would clearly constitute a taking of
property. Id. at 831. At the same time, the Court recognized that the state could deny the

445

Nollan’s development permit without facing a constitutional challenge if the permit denial
substantially advanced a legitimate state interest. Id. at 835-836. Consequently, the Court
held that the state could include conditions in the permit that serve the same legitimate
purpose without violating the Constitution. Id. at 836. The Court’s decision seemed to be
based, in part, on the Court’s holding, in Agins v. City of Tiburon, that a regulation can be
a taking if it does not substantially advance a legitimate state interest.
A few years later, the Supreme Court returned to the exactions issue in Dolan v. City of
Tigard, 512 U.S. 374 (1994). In that case, a landowner challenged the decision of the city
planning commission, when approving the expansion of her store and paving of the
parking lot for the store, to condition the approval on dedication of land for a greenway
and a bike path. Id. The Court reiterated the “essential nexus” requirement of Nollan, but
added a requirement that the permit issuer must make an individualized determination
that the permit condition is “related both in nature and extent to the impact of the proposed
development.” Id. at 391. The Court required that the condition must be “roughly
proportional” to the impact of the proposed development. Id. Rather than simply citing
Agins as authority for the new takings limits, the Dolan Court based its holding on the
“unconstitutional conditions” doctrine, which provides that “the government may not
require a person to give up a constitutional right - here the right to receive just
compensation when property is taken for a public use - in exchange for a discretionary
benefit where the benefit sought has little or no relationship to the property.” Id. at 385.
In light of Nollan and Dolan, when a permit condition is challenged as an unconstitutional
taking, the government has the burden of demonstrating that there is an essential nexus
between the permit condition and a legitimate state objective and that the condition is
roughly proportional to the impact of the proposed development. Although the Supreme
Court held, in Lingle v. Chevron, 544 U.S. 528 (2005), that the “substantially advances a
legitimate state interest” requirement in Agins was based on the process clause, rather
than the takings clause, the Lingle Court held that its holding did not require it to disturb
the holdings in Nollan and Dolan. Id.
In the wetlands context, the government should normally be able to meet the
requirements of Nollan and Dolan when including conditions in Section 404 permits.
When the Corps or EPA include conditions in permits to minimize harm to wetlands or to
require compensatory mitigation for such harm, there is an “essential nexus” between
those conditions and the legitimate government interest in protecting water quality and
the environment. With mitigation conditions especially, the government makes an
individualized determination of the amount and type of mitigation that are necessary to
compensate for the values and functions of the wetlands that will be lost due to the
development activity authorized by the permit. In most cases, therefore, this individualized
analysis should meet the “rough proportionality” requirement of Dolan.

446

Questions and Comments
1.

Mitigation Ratios: As discussed in Chapter 7, the ratio of mitigation acreage that
the government will require compared to the acreage of wetlands harmed by an
activity authorized by a Section 404 permit will vary depending on whether the
mitigation involves creation, restoration, enhancement, or preservation of
wetlands, and depending on the location and type of wetlands being harmed and
being protected. Although the mitigation ratios will vary, the goal of the government
in fashioning the mitigation requirements is to replace the values and functions of
the wetlands that are being harmed. As long as the government can demonstrate
those connections in litigation, the mitigation requirements should meet the
“essential nexus” and “rough proportionality” tests.

2.

Mitigation Banking and In Lieu Fee Mitigation: Mitigation banking may involve
protection of different types of wetlands than the wetlands that are harmed by
development authorized by a Section 404 permit and will usually involve protection
of wetlands that are not located at the site of the development project. Is it harder
to defend mitigation banking conditions in a wetland permit under the Nollan and
Dolan tests than it would be to defend a condition that required on-site, in-kind
mitigation? What if the mitigation bank was authorized to issue mitigation credits
in watersheds other than the watershed where the permitted activity occurred? Are
there concerns raised by in lieu fee mitigation permit conditions that are not raised
by mitigation banking or on-site, in-kind mitigation?

3.

Burden of Proof: When the Corps of Engineers denies a Section 404 permit or
EPA vetoes a Section 404 permit, the landowner, in a takings action, has the
burden of demonstrating that the government’s action has “gone too far” under the
Penn Central analysis. Note, though, that when a landowner challenges the
conditions included in a permit issued by the government, the government has the
burden of demonstrating that the conditions meet the “essential nexus” and “rough
proportionality” requirements.

4.

Professor Timothy M. Mulvaney explores the constitutional constraints on the
ability of local governments to attach conditions to land use permits to address
future cumulative impacts of the proposed development in Exactions for the
Future, 64 Baylor L. Rev. 511 (2012).

5.

Scope of Nollan and Dolan: The Supreme Court’s rulings in Nollan and Dolan
both involved cases where a government entity required a landowner to provide
public access to their property as a condition for approval of a permit or
development proposal. The following case examines whether Nollan and Dolan
apply when the government denies a permit or approval because the landowner

447

won’t agree to a permit condition and whether they apply to conditions that do not
involve requiring public access to property.
Koontz v. Saint John’s River Water Management District
133 S. Ct. 2586 (2013)
Justice Alito delivered the opinion of the
Court.

Resources for the Case
Unedited opinion (From Justia)
Google Map of all the cases in the coursebook
Oral argument audio - from the Oyez Project
Lecture on the case by Tim Mulvaney (Texas A&M
Law)
Orange County Property Records for property
Pacific Legal Foundation website re: Koontz

Our decisions in Nollan v. California Coastal
Comm’n, 483 U.S. 825 (1987), and Dolan v.
City of Tigard, 512 U.S. 374 (1994), provide
important protection against the misuse of the
power of land-use regulation. In those cases,
we held that a unit of government may not
condition the approval of a land-use permit on
the owner’s relinquishment of a portion of his
property unless there is a “nexus” and “rough proportionality” between the government’s
demand and the effects of the proposed land use. In this case, the St. Johns River Water
Management District (District) believes that it circumvented Nollan and Dolan because of
the way in which it structured its handling of a permit application submitted by Coy Koontz,
Sr., whose estate is represented in this Court by Coy Koontz, Jr. * * * The District did not
approve his application on the condition that he surrender an interest in his land. Instead,
the District, after suggesting that he could obtain approval by signing over such an
interest, denied his application because he refused to yield. The Florida Supreme Court
blessed this maneuver and thus effectively interred those important decisions. Because
we conclude that Nollan and Dolan cannot be evaded in this way, the Florida Supreme
Court’s decision must be reversed.
I
A
In 1972, petitioner purchased an undeveloped 14.9-acre tract of land on the south side of
Florida State Road 50, a divided four-lane highway east of Orlando. The property is
located less than 1,000 feet from that road’s intersection with Florida State Road 408, a
tolled expressway that is one of Orlando’s major thoroughfares.
A drainage ditch runs along the property’s western edge, and high-voltage power lines
bisect it into northern and southern sections. The combined effect of the ditch, a 100 foot
wide area kept clear for the power lines, the highways, and other construction on nearby

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parcels is to isolate the northern section of petitioner’s property from any other
undeveloped land. Although largely classified as wetlands by the State, the northern
section drains well; the most significant standing water forms in ruts in an unpaved road
used to access the power lines. The natural topography of the property’s southern section
is somewhat more diverse, with a small creek, forested uplands, and wetlands that
sometimes have water as much as a foot deep. A wildlife survey found evidence of
animals that often frequent developed areas: raccoons, rabbits, several species of bird,
and a turtle. The record also indicates that the land may be a suitable habitat for
opossums.
The same year that petitioner purchased his property, Florida enacted the Water
Resources Act, which divided the State into five water management districts and
authorized each district to regulate “construction that connects to, draws water from,
drains water into, or is placed in or across the waters in the state.” * * * Under the Act, a
landowner wishing to undertake such construction must obtain from the relevant district
a Management and Storage of Surface Water (MSSW) permit, which may impose “such
reasonable conditions” on the permit as are “necessary to assure” that construction will
“not be harmful to the water resources of the district.” * * *
In 1984, in an effort to protect the State’s rapidly diminishing wetlands, the Florida
Legislature passed the Warren S. Henderson Wetlands Protection Act, which made it
illegal for anyone to “dredge or fill in, on, or over surface waters” without a Wetlands
Resource Management (WRM) permit. * * * Under the Henderson Act, permit applicants
are required to provide “reasonable assurance” that proposed construction on wetlands
is “not contrary to the public interest,” as defined by an enumerated list of criteria.
* * * Consistent with the Henderson Act, the St. Johns River Water Management District,
the district with jurisdiction over petitioner’s land, requires that permit applicants wishing
to build on wetlands offset the resulting environmental damage by creating, enhancing,
or preserving wetlands elsewhere.
Petitioner decided to develop the 3.7-acre northern section of his property, and in 1994
he applied to the District for MSSW and WRM permits. Under his proposal, petitioner
would have raised the elevation of the northernmost section of his land to make it suitable
for a building, graded the land from the southern edge of the building site down to the
elevation of the high-voltage electrical lines, and installed a dry-bed pond for retaining
and gradually releasing stormwater runoff from the building and its parking lot. To mitigate
the environmental effects of his proposal, petitioner offered to foreclose any possible
future development of the approximately 11acre southern section of his land by deeding
to the District a conservation easement on that portion of his property.
The District considered the 11 acre conservation easement to be inadequate, and it
informed petitioner that it would approve construction only if he agreed to one of two

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concessions. First, the District proposed that petitioner reduce the size of his development
to 1 acre and deed to the District a conservation easement on the remaining 13.9 acres.
To reduce the development area, the District suggested that petitioner could eliminate the
dry-bed pond from his proposal and instead install a more costly subsurface stormwater
management system beneath the building site. The District also suggested that petitioner
install retaining walls rather than gradually sloping the land from the building site down to
the elevation of the rest of his property to the south.
In the alternative, the District told petitioner that he could proceed with the development
as proposed, building on 3.7 acres and deeding a conservation easement to the
government on the remainder of the property, if he also agreed to hire contractors to make
improvements to District-owned land several miles away. Specifically, petitioner could
pay to replace culverts on one parcel or fill in ditches on another. Either of those projects
would have enhanced approximately 50 acres of District-owned wetlands. When the
District asks permit applicants to fund offsite mitigation work, its policy is never to require
any particular offsite project, and it did not do so here. Instead, the District said that it
“would also favorably consider” alternatives to its suggested offsite mitigation projects if
petitioner proposed something “equivalent.” * * *
Believing the District’s demands for mitigation to be excessive in light of the environmental
effects that his building proposal would have caused, petitioner filed suit in state court.
Among other claims, he argued that he was entitled to relief under Fla. Stat. § 373.617(2),
which allows owners to recover “monetary damages” if a state agency’s action is “an
unreasonable exercise of the state’s police power constituting a taking without just
compensation.” * * *
II
A
We have said in a variety of contexts that “the government may not deny a benefit to a
person because he exercises a constitutional right.” * * *
Nollan and Dolan “involve a special application” of this doctrine that protects the Fifth
Amendment right to just compensation for property the government takes when owners
apply for land-use permits. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 547 (2005);
Dolan, 512 U.S., at 385 (invoking “the well-settled doctrine of ‘unconstitutional
conditions’”). Our decisions in those cases reflect two realities of the permitting process.
The first is that land-use permit applicants are especially vulnerable to the type of coercion
that the unconstitutional conditions doctrine prohibits because the government often has
broad discretion to deny a permit that is worth far more than property it would like to take.
By conditioning a building permit on the owner’s deeding over a public right-of- way, for

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example, the government can pressure an owner into voluntarily giving up property for
which the Fifth Amendment would otherwise require just compensation. * * * So long as
the building permit is more valuable than any just compensation the owner could hope to
receive for the right-of-way, the owner is likely to accede to the government’s demand,
no matter how unreasonable. Extortionate demands of this sort frustrate the Fifth
Amendment right to just compensation, and the unconstitutional conditions doctrine
prohibits them.
A second reality of the permitting process is that many proposed land uses threaten to
impose costs on the public that dedications of property can offset. Where a building
proposal would substantially increase traffic congestion, for example, officials might
condition permit approval on the owner’s agreement to deed over the land needed to
widen a public road. Respondent argues that a similar rationale justifies the exaction at
issue here: petitioner’s proposed construction project, it submits, would destroy wetlands
on his property, and in order to compensate for this loss, respondent demands that he
enhance wetlands elsewhere. Insisting that landowners internalize the negative
externalities of their conduct is a hallmark of responsible land-use policy, and we have
long sustained such regulations against constitutional attack. * * *
Nollan and Dolan accommodate both realities by allowing the government to condition
approval of a permit on the dedication of property to the public so long as there is a
“nexus” and “rough proportionality” between the property that the government demands
and the social costs of the applicant’s proposal. * * * Our precedents thus enable
permitting authorities to insist that applicants bear the full costs of their proposals while
still forbidding the government from engaging in “out-and-out . . . extortion” that would
thwart the Fifth Amendment right to just compensation. * * * Under Nollan and Dolan the
government may choose whether and how a permit applicant is required to mitigate the
impacts of a proposed development, but it may not leverage its legitimate interest in
mitigation to pursue governmental ends that lack an essential nexus and rough
proportionality to those impacts.
B
The principles that undergird our decisions in Nollan and Dolan do not change depending
on whether the government approves a permit on the condition that the applicant turn
over property or denies a permit because the applicant refuses to do so. We have often
concluded that denials of governmental benefits were impermissible under the
unconstitutional conditions doctrine. * * * In so holding, we have recognized that
regardless of whether the government ultimately succeeds in pressuring someone into
forfeiting a constitutional right, the unconstitutional conditions doctrine forbids burdening
the Constitution’s enumerated rights by coercively withholding benefits from those who
exercise them.

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A contrary rule would be especially untenable in this case because it would enable the
government to evade the limitations of Nollan and Dolan simply by phrasing its demands
for property as conditions precedent to permit approval. Under the Florida Supreme
Court’s approach, a government order stating that a permit is “approved if” the owner
turns over property would be subject to Nollan and Dolan, but an identical order that uses
the words “denied until” would not. Our unconstitutional conditions cases have long
refused to attach significance to the distinction between conditions precedent and
conditions subsequent. See Frost & Frost Trucking Co. v. Railroad Comm’n of Cal., 271
U.S. 583 –593 (1926) (invalidating regulation that required the petitioner to give up a
constitutional right “as a condition precedent to the enjoyment of a privilege”); Southern
Pacific Co. v. Denton, 146 U.S. 202, 207 (1892) (invalidating statute “requiring the
corporation, as a condition precedent to obtaining a permit to do business within the State,
to surrender a right and privilege secured to it by the Constitution”). * * * To do so here
would effectively render Nollan and Dolan a dead letter.
The Florida Supreme Court puzzled over how the government’s demand for property can
violate the Takings Clause even though “ ‘no property of any kind was ever taken,’ ”
* * * but the unconstitutional conditions doctrine provides a ready answer. Extortionate
demands for property in the land-use permitting context run afoul of the Takings Clause
not because they take property but because they impermissibly burden the right not to
have property taken without just compensation. As in other unconstitutional conditions
cases in which someone refuses to cede a constitutional right in the face of coercive
pressure, the impermissible denial of a governmental benefit is a constitutionally
cognizable injury.
Nor does it make a difference, as respondent suggests, that the government might have
been able to deny petitioner’s application outright without giving him the option of securing
a permit by agreeing to spend money to improve public lands. See Penn Central Transp.
Co. v. New York City, 438 U.S. 104 (1978). Virtually all of our unconstitutional conditions
cases involve a gratuitous governmental benefit of some kind. * * * Yet we have
repeatedly rejected the argument that if the government need not confer a benefit at all,
it can withhold the benefit because someone refuses to give up constitutional rights. E.g.,
United States v. American Library Assn., Inc., 539 U.S. 194, 210 (2003) (“[T]he
government may not deny a benefit to a person on a basis that infringes his
constitutionally protected . . . freedom of speech even if he has no entitlement to that
benefit” (emphasis added and internal quotation marks omitted)); Wieman v. Updegraff,
344 U.S. 183, 191 (1952) (explaining in unconstitutional conditions case that to focus on
“the facile generalization that there is no constitutionally protected right to public
employment is to obscure the issue”). Even if respondent would have been entirely within
its rights in denying the permit for some other reason, that greater authority does not imply
a lesser power to condition permit approval on petitioner’s forfeiture of his constitutional

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rights. See Nollan, 483 U.S., at 836–837 (explaining that “[t]he evident constitutional
propriety” of prohibiting a land use “disappears . . . if the condition substituted for the
prohibition utterly fails to further the end advanced as the justification for the prohibition”).
That is not to say, however, that there is no relevant difference between a consummated
taking and the denial of a permit based on an unconstitutionally extortionate demand.
Where the permit is denied and the condition is never imposed, nothing has been taken.
While the unconstitutional conditions doctrine recognizes that this burdens a
constitutional right, the Fifth Amendment mandates a particular remedy—just
compensation—only for takings. In cases where there is an excessive demand but no
taking, whether money damages are available is not a question of federal constitutional
law but of the cause of action—whether state or federal—on which the landowner relies.
Because petitioner brought his claim pursuant to a state law cause of action, the Court
has no occasion to discuss what remedies might be available for a Nollan/Dolan
unconstitutional conditions violation either here or in other cases. * * *
We hold that the government’s demand for property from a land use permit applicant must
satisfy the requirements of Nollan and Dolan even when the government denies the
permit * * * . The Court expresses no view on the merits of petitioner’s claim that
respondent’s actions here failed to comply with the principles set forth in this opinion and
those two cases. The Florida Supreme Court’s judgment is reversed, and this case is
remanded for further proceedings not inconsistent with this opinion.
Questions and Comments
1.

Burden of Proof: In light of this decision, when the government denies a permit
because the applicant refuses to agree to a condition proposed for the permit, in a
takings challenge, the government will have the burden of proving that the rejected
condition meets the “essential nexus” and “rough proportionality” tests. As noted
above, if the landowner were challenging the permit denial as a taking because of
the impact of the denial on the landowner’s use of property, the landowner would
have the burden of demonstrating that the denial constituted a taking under the
Penn Central analysis. Did the Koontz Court determine that the government
demonstrated that either of the mitigation proposals it requested met the “essential
nexus” and “rough proportionality” tests?

2.

Compensation: When a regulation “goes too far”, a property owner is entitled to
just compensation. If the government denies a permit application because the
applicant won’t agree to a condition that violates the Nollan or Dolan tests, but the
permit denial doesn’t “go too far” under the Penn Central analysis, what remedy is
available to the landowner? Has anything been taken?

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3.

Which Conditions are Examined? The Section 404 permit application process
frequently will involve negotiations regarding mitigation requirements or other
permit conditions. The Corps may propose some conditions which it later decides
to take off the table. Does Koontz suggest that a court should strike down a permit
denial whenever any of the conditions proposed in negotiations violate the Nollan
or Dolan tests, or do courts only look at the last offer that was on the table before
the government denied a permit? How might the Koontz decision and the manner
in which courts answer the question above affect the permit negotiation process?
If the government can deny a permit outright without “going too far” to limit property
usage under Penn Central, should it invite potential litigation by requesting permit
conditions in the negotiation process that might be challenged under Nollan and
Dolan?

4.

Money Payments: In a portion of the opinion not reproduced above, the Koontz
Court also held that Nollan and Dolan applied when the government asks a
landowner, through a permit condition, to spend money instead of providing an
easement over property. The Court wrote: “if we accept this argument it would be
very easy for land use permitting officials to evade the limitations of Nollan and
Dolan. Because the government need only provide a permit applicant with one
alternative that satisfies the nexus and rough proportionality standards, a
permitting authority wishing to exact an easement could simply give the owner a
choice of either surrendering an easement or making a payment equal to the
easement’s value. Such so called ‘in lieu of’ fees are utterly commonplace * * * and
they are functionally equivalent to other types of land use exactions. For that
reason and those that follow, we reject respondent’s argument and hold that socalled ‘monetary exactions’ must satisfy the nexus and rough proportionality
requirements * * *” In light of the Court’s holding, it seems fairly clear that
conditions included in Section 404 permits that require mitigation through the use
of in lieu fee mitigation programs would be analyzed under the Nollan and Dolan
tests.

5.

Professors J.B. Ruhl and John Echeverria discussed the impact of Koontz on
environmental law in a presentation at Vermont Law School entitled Koontz: A Big
Yawn for Environmental Law? Video of their presentation is available on YouTube.

VI.

Other Takings-Related Requirements

Because of the financial liability associated with takings, the Corps, EPA and wetland
regulators routinely consider the likelihood that their actions will be challenged as takings
when deciding whether to issue or deny permits and when deciding what conditions to
include in permits. Even if they did not have a financial incentive to undertake that
analysis, federal wetland regulators are required, by a Presidential Executive Order, to

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consider the takings implications of their actions. Executive Order 12630, issued in 1988,
requires federal agencies, among other things, to consider the takings implications of
actions before undertaking those actions and to document the takings analysis for
regulations in the notice of proposed rulemaking, and to submit to the Office of
Management and Budget, annually, a list of actions that have been challenged as, or held
to be, takings. See Executive Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, 53 Fed. Reg. 8859 (Mar. 15, 1988). For
permits, the Executive Order requires that conditions in the permit “serve the same
purpose that would have been served by a prohibition of the use or action; and ...
substantially advance that purpose.” Id. ¶ 4. In addition, the Order provides that “When a
proposed action would place a restriction on a use of private property, the restriction
imposed on the use shall not be disproportionate to the extent to which the use contributes
to the overall problem that the restriction is imposed to redress.” Id.
In a 2003 report, the General Accounting Office (GAO) examined the implementation of
the Executive Order by the Corps, EPA, the Department of Agriculture and the
Department of Interior, and concluded that the Order was not being aggressively
implemented. See General Accounting Office, GAO-03-1015, Regulatory Takings:
Implementation of Executive Order on Government Actions Affecting Private Property
Use (Sept. 2003). GAO criticized the Department of Justice for failing to update guidelines
regarding the implementation of the Executive Order and noted that OMB had informed
agencies, in 1994, that they did not have to submit annual reports outlining the just
compensation challenges or awards against the agencies. Id. at 4. Since takings claims
against federal agencies are litigated by the Department of Justice, GAO was able to
obtain data from the Department regarding the volume of takings claims against the four
agencies during the three fiscal years preceding the report. Id. at 5. Between FY 2000
and FY 2002, 44 takings lawsuits were filed against the Corps, EPA, the Department of
Agriculture or the Department of Interior. Id. The plaintiffs prevailed in 14 of those cases
and received $36.5 million in awards or settlements. Id. GAO determined that the
Executive Order did not apply to the actions of the agencies in 11 of those 14 cases, and
determined that the four agencies generally only conducted the takings analysis required
by the Executive Order in 1 out of every 3 cases where the Order did apply. Id. By the
end of 2002, plaintiffs filed 54 more takings lawsuits against one or more of the four
agencies. Id.
Just as federal agencies are required to evaluate the takings implications of actions
before they undertake the actions, many state agencies are required to engage in similar
analyses before undertaking actions. According to a 2013 study prepared by the
Environmental Law Institute, at least 17 states have adopted legislation that requires state
government officials to assess their actions for potential constitutional takings implications
or for other impacts on private property rights. See Environmental Law Institute, State
Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters

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Beyond the Scope of the Federal Clean Water Act 24 (May 2013). Most of the states
require the government officials to assess their own actions, but 3 states require agency
officials to have at least some rulemakings reviewed for compliance by the attorney
general or a legislative committee.

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Interviewing and Drafting Problem
Doctor Leslie McCoy, a cardiologist from Charlotte, North Carolina, bought some property on
Ocracoke Island, North Carolina a few years ago to build a vacation home. Apparently, there
were some wetlands on the property that she bought. A few years later, she built a house on one
of the lots that she bought and sold that house. Within the past few months, though, she tried to
build a house on the other lot, but the Corps of Engineers would not grant her a Clean Water Act
permit to fill the wetlands on the property. She thinks that challenging the validity of the permit
denial is futile, but she wants to challenge the permit denial as a taking of her property. She says
that the property is basically worthless now, and she bought it for $100,000.
Questions
1. Draft a series of questions that you would ask Doctor McCoy in order to evaluate the strength
of any takings claim that she might have, based on the Corps’ Section 404 permit denial. If you
are not familiar with client interviewing techniques, or have not conducted client interviews in the
past, the attached short summary of client interviewing may be helpful. The interview should
include a mix of open-ended and closed-ended questions that will elicit the information that is
necessary to determine whether the client can establish the prima facie case for a taking (i.e.,
economic impact of the decision, interference with reasonable investment-backed expectations,
character of the government action, rationale for the government’s action, identification of the
parcel as a whole, final definitive agency position, etc.).
2. Doctor McCoy has arranged to meet with you to explore whether she should pursue a takings
claim against the Corps of Engineers. Interview her and gather the information that you will need
to assess the strength of her takings claim. For purposes of this simulation, it is not necessary to
discuss financial arrangements for the representation. The confidential information for Doctor
McCoy is in the teacher’s manual.

Chapter Quiz
Now that you’ve finished Chapter 11, why not try a CALI Lesson on the material at: http://cca.li/Q2.
It should take about 30 minutes.

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