United States v. Riverside Bayview Homes, Inc.

PETITIONER:United States
RESPONDENT:Riverside Bayview Homes, Inc.
LOCATION:Hardwick’s Apartment

DOCKET NO.: 84-701
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 474 US 121 (1985)
ARGUED: Oct 16, 1985
DECIDED: Dec 04, 1985

ADVOCATES:
Edgar B. Washburn – on behalf of the Respondents
Kathryn Anne Oberly – on behalf of the petitioner
Ms. Kathryn A. Oberly – on behalf of the petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 16, 1985 in United States v. Riverside Bayview Homes, Inc.

Warren E. Burger:

We will hear arguments next in United States against Riverside Bayview Homes.

Ms. Oberly, I think you may proceed whenever you are ready.

Kathryn Anne Oberly:

Thank you, Mr. Chief Justice, and may it please the Court, the issue in this case is whether Riverside’s property is wetland subject to the Corps of Engineers permit jurisdiction under Section 404 of the Clean Water Act.

The Act prohibits the discharge of any pollutant into waters of the United States without a permit, and the Act further defines dredge and fill material as a pollutant.

In this case, Riverside began filling without a permit in 1976.

The Corps issued a cease and desist order which Riverside ignored.

The United States obtained a temporary restraining order from the District Court which Riverside also ignored, and eventually the District Court held Riverside in contempt of court, and ultimately the District Court at the time Judge Kennedy issued a preliminary injunction in joining Riverside from further filling activity on its property absent a permit from the Corps of Engineers.

Riverside appealed, but in the meantime the regulations defining wetlands had been changed, and so the United States asked that the case be remanded to the District Court to consider the effect of the new regulations on the facts of this case, and on remand, Judge Gilmore, who by this time the case had been reassigned to, applied the facts as found by Judge Kennedy in her lengthy trial to the new regulations, and found again that Riverside’s property was a wetland within the Corps’ jurisdiction, and again entered a permanent injunction prohibiting Riverside from filling without a permit.

On Riverside’s second appeal, the Sixth Circuit reversed.

In its initial opinion, the Court based its decision on its interpretation of the Corps’ revised regulations.

The court interpreted the language in the regulations, which we have quoted in our brief, that relates to ground water saturation as being basically irrelevant.

The way the court treated it as irrelevant was by… to not quote it every time the court mentioned the new regulation.

Instead, the court concluded that the new regulations under which this case was now to be decided required that any wetland vegetation on a piece of property be caused, actually caused by what the Court of Appeals called frequent flooding, which does not appear in the regulations anywhere, frequent flooding from adjacent navigable waters.

Essentially what the court was doing in our opinion was reinstating a requirement in the 1975 regulations for periodic inundation that had been eliminated and was the basis for the United States’ motion that the case be remanded to the District Court for reconsideration under the revised regulations.

Even though the government thought that the Court of Appeals panel opinion had misinterpreted the regulations, we also thought initially that this was perhaps something the government could have corrected administratively by simply issuing revised or clarified regulations explaining that this was never the intent of the regulations, and that could have solved the problem.

Sandra Day O’Connor:

Ms. Oberly, may I inquire, in your reply brief it seemed to me that for the first time the government was saying that the land in this case is connected by open water to a navigable river of the United States.

So is the position you are now taking that there is a direct surface connection between the land at issue here and the navigable waters?

Kathryn Anne Oberly:

Absolutely, Your Honor.

There is the clearest, and I had planned to be talking about–

Sandra Day O’Connor:

Well, why, then, didn’t the Corps just show that surface connection before the District Court and not bother with subsurface connections?

It just seemed to change the whole theory in your reply brief.

Kathryn Anne Oberly:

–Your Honor, in all fairness to Judge Kennedy and the Sixth Circuit, this was one of the first Section 404 cases ever tried.

I don’t think, again, in all fairness to everybody concerned, but at the time of the trial, anybody knew exactly what they were doing.

Sandra Day O’Connor:

Well, it does seem to me that if the theory that you now assert is correct, that there is a direct surface connection to navigable water, that the case is substantially–

Kathryn Anne Oberly:

I agree with you completely.

I think that much, if not all of what went on before Judge Kennedy was irrelevant, which was the reason why when the case first came up on appeal, the United States moved for the remand, from the Court of Appeals back to the District Court, and it was our intention that these irrelevancies which comprise about 90 percent of the District Court record in our view would be just completely set aside.

We would start over with a clean slate, try the case properly, and we were always certain as in fact turned out to be the case, that the United States would and should win this case under the new regulations as well as under the old ones, but our hope was to sweep away what had really diverted everybody’s–

Byron R. White:

–What did the District–

Kathryn Anne Oberly:

–attention from the pertinent issues in the case.

Byron R. White:

–What did the District Court… wasn’t there some expert testimony on the connection between this wetland and the navigable waters?

Kathryn Anne Oberly:

There was expert testimony on flooding on the surface, and there was expert testimony on subsurface, in other words ground water–

Byron R. White:

Which was to the effect that there was no connection.

Kathryn Anne Oberly:

–That’s correct.

We think that, A, the findings are irrelevant to our position, and B, the findings are probably clearly erroneous.

Byron R. White:

You just want to be able to try the case again.

Kathryn Anne Oberly:

No, we are tired of this case, and would just as soon not try it again.

Byron R. White:

Well, what, should we just dismiss it as improvidently granted?

Kathryn Anne Oberly:

No, Your Honor, I think that it would be sufficient if you take… and I plan to talk about the maps and the pictures in the course of my argument.

If you take the maps and the pictures, which are–

Harry A. Blackmun:

I might say I am glad we finally got a map.

It took a long time.

Kathryn Anne Oberly:

–Another factor I should mention, which is noted in Footnote 1 of our reply brief, is that for several years the exhibits in the case were lost, and in all candor I did not understand the case until we found the exhibits, and i had the same physical, mental perception of the land we were talking about that the Court of Appeals opinion describes until these exhibits were found, and once they were found, I realized that we were talking… that what was involved here in terms of both biological and scientific functions the wetlands perform and the actual hydrologic connection between this wetland and navigable waters of the United States was simply not as described in the Court of Appeals opinion.

The Court of Appeals did not have the exhibits.

William H. Rehnquist:

I don’t regard a USGS map as kind of an open sesame to the correct resolution of a case.

I dealt with a number of them in my practice.

They can be as wrong as anybody else’s.

Kathryn Anne Oberly:

But, Your Honor, this map was… the map that is in our reply brief and the picture to which I will be directing your attention was before Judge Kennedy.

She also took a view of the property.

William H. Rehnquist:

Well, did Judge Kennedy make a finding that this map was accurate?

Kathryn Anne Oberly:

Nobody challenged its accuracy.

So there was no occasion for her to make a finding.

William H. Rehnquist:

I mean, is your–

Kathryn Anne Oberly:

She did make a finding, Your Honor, and answered, in direct answer to your question, that the property owned by Riverside is adjacent to a navigable water in the United States, to wit, Black Creek.

That finding is in her opinion, and if is demonstrated beyond any question by the map that is attached to the back of our reply brief.

William H. Rehnquist:

–So the position you are taking now, you feel, is completely consistent with the factual findings of the District Court and of the Court of Appeals?

Kathryn Anne Oberly:

Clearly not of the Court of Appeals, because the Court of Appeals has described a totally different piece of property than what the physical evidence shows exists.

William H. Rehnquist:

And so now we are supposed to hear you and kind of revise the Court of Appeals description?

Kathryn Anne Oberly:

No, Your Honor, I am not asking you to change the facts.

I am asking you to recognize that first of all they were handicapped by not having any pictures, second of all the fact that they did… they didn’t find new facts, but what they did was apply–

William H. Rehnquist:

What you are bringing here then is essentially a factual dispute about how this land lies, and whether there is a surface connection or not.

Kathryn Anne Oberly:

–I think it is more–

William H. Rehnquist:

You say the Court of Appeals is wrong in having described a property a particular way.

Is that the case we… the kind of case we have to hear?

Kathryn Anne Oberly:

–No, Your Honor.

I think if that were it and it were only this wetland, and whether the Corps had jurisdiction over it, we would not have come here on a case with such a confused record as this one has.

Our problem is, as a matter of law, if you were to affirm the Sixth Circuit, we think that there would then be no wetlands regulated under the Clean Water Act.

If you affirm the rationale and the statements in the Sixth Circuit’s opinion and is judgment, we think that all wetlands, whether adjacent to navigable waters or not, would no longer be within the scope of regulatory authority under the Clean Water Act, and our concern goes far beyond the facts of this case and the relationship of this wetland to–

Sandra Day O’Connor:

But the problem is if the facts are different than were perceived or articulated by the Courts below, how do we deal with that to get to the legal question?

And we have to send it back somehow first so that the… get sorted out.

Kathryn Anne Oberly:

–I don’t think you have to, Your Honor, because what we are relying on are trial exhibits for you to see–

Byron R. White:

Well, you didn’t… it sounds to me like there was somewhat of some omissions at the trial stage.

Kathryn Anne Oberly:

–Well, there were a lot of excesses that–

Byron R. White:

At the appellate stage.

I would think you would be satisfied if we just dismissed as improvidently granted, because that leaves the Court of Appeals opinion here–

Kathryn Anne Oberly:

–If the Court of Appeals–

Byron R. White:

–but only for one circuit.

Kathryn Anne Oberly:

–It is a circuit that has substantial and significant wetlands in it, and from the Corps of Engineers perspective would be quite a damaging precedent to leave that opinion out there as precedent.

If the Court of Appeals opinion were also to be vacated, if the whole case were to be vacated, and we started over, that would be something else, but to leave the Sixth Circuit opinion there would mean that no wetlands within the Sixth Circuit could be regulated.

Byron R. White:

Why are you trying to win the case on another ground?

Why don’t you just–

Kathryn Anne Oberly:

Well, I would be happy to–

Byron R. White:

–Why did you ever… why did you–

Kathryn Anne Oberly:

–I am happy to win it on any around, but once we–

–I know, but if you win it on this ground, if you win it on this ground, you don’t disturb the Court of Appeals’ view about a wetland.

I think we do.

I think that there are aspects of the Court of Appeals opinion that this Court would clearly have to say are wrong and inconsistent with the Clean Water Act, even to rule for the government on this narrower ground.

Byron R. White:

–Even without this map and this connection with the water, you claim the Court of Appeals is wrong.

Kathryn Anne Oberly:

That’s correct.

We claim that even before–

Byron R. White:

And I would suppose you would rather win on that than this.

Kathryn Anne Oberly:

–We claimed that even before the map had been found, and we are happy to win it that way or… but it seemed to me important once the exhibits had been located for this Court to see what we were actually talking about in this case, and to the Court of Appeals’ credit, they asked to see the exhibits at the oral argument in the Sixth Circuit, and they were told they had been lost, and it wasn’t until the Government had either petitioned for cert or cert had been granted that someone in the District Court clerk’s office found the exhibits, and that is all quite unfortunate, but it doesn’t change the fact that in our view, either using these maps or using the theory that is basically set forth in our petition and in our opening brief, this is a wetland, and that the Court of Appeals legal analysis was wrong.

Sandra Day O’Connor:

Well, using your old theory, without the overlay of the new map and facts, the Corps includes adjacent wetlands as part of the waters of the United States, apparently without any requirement that the wetlands or the discharges to them affect navigable waters or interstate commerce in any way.

Is that right?

Kathryn Anne Oberly:

I don’t think that is really quite a fair characterization, Your Honor.

The Corps uses adjacency as… I have called it a sort of administrative presumption that a wetland, that is, again referring to the map at the back of the reply brief, a wetland that is as close to navigable waters, as adjacent to navigable waters as this one is, from a scientific standpoint, can be–

Sandra Day O’Connor:

Well, must there be–

Kathryn Anne Oberly:

–Yes.

Sandra Day O’Connor:

–Okay.

Must there be some effect on navigable waters or on interstate commerce?

Kathryn Anne Oberly:

I think you could argue the case, and I could answer the question no and still be correct, but in this case we can demonstrate a connection between the wetland and these navigable waters, and that is all that this Court would have to decide.

Sandra Day O’Connor:

Well, disregarding this case, on the pure theory, must there be a connection?

Must it affect it, or not, interstate commerce?

Kathryn Anne Oberly:

Yes.

In this… for this case, we are willing to concede that there should be a connection for wetland to be treated, as adjacent, but we differ with the way the Court of Appeals characterized the connection.

The Court of Appeals has a one-way connection only which requires frequent flooding from these water bodies to this wetland.

In our opinion, the connection can go either direction–

Sandra Day O’Connor:

A discharge out.

Kathryn Anne Oberly:

–Discharge out.

We have… the record demonstrates, as I will explain in a minute, discharge out.

It demonstrates geographic proximity of a wetland to open water bodies forms what we call an aerial connection, aerial in the sense of geographic proximity connection, where scientists and Congress know that a wetland this close to open water bodies works together with the open water bodies.

They each perform functions that neither one would perform if they were not together, and so the Corps uses the adjacency presumption as a way of saying, if you see this spatial relationship, you know that this wetland will perform at least some of the functions that Congress was concerned about in protecting this open water bodies.

Now, if you had your wetland over here, then that presumption wouldn’t make any sense, and in those circumstances the Corps’ regulations place upon the Corps the affirmative burden of demonstrating an effect on interstate commerce before the hypothetical wetland up in this corner would be regulated as “isolated wetland”.

Sandra Day O’Connor:

So the person watering his back yard a lot is not going to be brought in in your view?

Kathryn Anne Oberly:

Unless we could show that he has got some interstate commerce activity going on in his back yard, and the Corps would take it upon itself to make that showing itself, and not require the back yard owner to come in and demonstrate it, the absence of the commerce connection to the Corps’s satisfaction.

And again, the Court of Appeals’ opinion is permeated with concern that the government is regulating low lying back yards, that it is quite clear from this picture, from this map, and from the aerial photograph that is in the joint appendix, that this is not a low lying back yard.

This is in fact an adjacent wetland, adjacent… by adjacent, I mean it is immediately next to, abuts, adjoins, borders, whatever other adjective you might want to use, navigable waters of the United States.

The reason we think that the Court of Appeals opinion is dangerous and needs to be dealt with is not this particular wetland, but because if you accept the Court of Appeals’ reasoning as to a piece of property like this, then the functions that Congress recognized adjacent wetlands perform for open water bodies will never be regulated in the Sixth Circuit.

And I would like for a moment to just describe a few of those functions.

There are a lot of them listed in our brief.

Some of them are quite technical.

Kathryn Anne Oberly:

Some of them are beyond my scientific understanding.

But using this map, I think we can just understand a few of them.

One, and one of the most important, is trapping of sediment.

Again, using the map at the back of the reply brief, we have developed areas to the northwest of Riverside’s property.

As a hypothetical, we could suppose that the landowners in those areas might water their lawns and fertilize their lawns with chemicals, and then it rains.

Those chemicals and the rainwater wash off in whatever direction the land slopes.

The evidence in the record is that the land in this area is basically quite flat, but the slope is to the southeast.

In other words, it is to Lake St. Clair.

And therefore the chemicals that people put on their lawns here to fertilize their lawns are going to wash in this direction every time it rains, but because there is a wetland here filled with wetland vegetation, that vegetation traps the chemicals and other sediment that would otherwise wash into the open water bodies.

And basically what the wetland does is provide a free water treatment plant.

The chemicals in the sediment would otherwise eventually find their way into the open water bodies.

William H. Rehnquist:

The lawns you are talking about, Ms. Oberly, then are situated to the north and west of the property line?

Kathryn Anne Oberly:

Of the black boundary.

That is correct.

This is as an example.

In reverse, other functions that this wetland and other wetlands perform would be flood control.

When the waters of Lake St. Clair and the Great Lakes flood, which happens more and more often… I think it is a matter of common knowledge that lake levels on the treat Lakes have been rising over the last decade or so… they go this direction, to the northwest, across Riverside’s property.

If the wetland… what the wetland’s presence does is, the vegetation acts like a sponge, and it traps flood waters, and then it releases them more slowly, like a sponge.

William H. Rehnquist:

Didn’t the District Court have something to say about how often that land was flooded?

Kathryn Anne Oberly:

Yes, she did, and she found it wasn’t very often, but it had happened in a manner that was basically consistent with the flood cycle on the Great Lakes, which is an eight to twenty year cycle.

The testimony in the record was that you don’t have annual flooding on the Great Lakes.

You have an uneven eight to twenty year high and low flood cycle, which she found somewhere between four and six, depending on your count, how you count floods over eighty years.

That is consistent with the way the Great Lakes flood cycle works.

The Court of Appeals was unhappy about that

“infrequency, but since in our view frequent flooding isn’t an element of the jurisdictional test in any event, the frequency, doesn’t matter. “

What I am trying to point out is that wetlands do perform this flood control function, and that when you remove the wetland by filling it in, instead of a wetland you need a Corps of Engineers flood control project, and it is a lot more extensive than cattails acting as a sponge to trap overflow.

Byron R. White:

Basically what is the constitutional authority for this statute or these regulations?

Kathryn Anne Oberly:

The commerce clause.

Byron R. White:

Just straight the commerce clause.

Kathryn Anne Oberly:

Yes.

Byron R. White:

And the navigable water is just a stand-in for an effect on commerce.

If you are adjacent to… or if you connect with a navigable water, you are in interstate commerce?

Kathryn Anne Oberly:

That is correct, for an adjacent wetland.

Byron R. White:

Uh-huh.

Kathryn Anne Oberly:

The Act in our view also covers wetlands that are not adjacent to navigable waters, that are called isolated wetlands.

Byron R. White:

If then, what?

Kathryn Anne Oberly:

If the Corps of Engineers affirmatively demonstrates that the use–

Byron R. White:

There is a connection?

Kathryn Anne Oberly:

–or destruction of that wetland would have an effect on interstate commerce.

Byron R. White:

One way or the other, either… running either way, or not?

Kathryn Anne Oberly:

That’s correct.

It doesn’t matter which way.

Sandra Day O’Connor:

Well, an effect by some connection with waters in–

Kathryn Anne Oberly:

It could be used… it could be interstate travelers.

It could be migratory birds.

I am talking about isolated wetlands now, and again this is not a case of an isolated wetland.

Sandra Day O’Connor:

–But it would be your view that an isolated wetland that provided refuge for birds would be enough for Corps of Engineers jurisdiction?

Kathryn Anne Oberly:

If they were migratory birds, yes.

Byron R. White:

If there was an aerial connection, as you say.

Kathryn Anne Oberly:

Yes.

0 [Generallaughter.]

William H. Rehnquist:

Is the movement of birds interstate commerce?

Kathryn Anne Oberly:

It can… Yes.

William H. Rehnquist:

What case do you rely on?

Kathryn Anne Oberly:

Missouri versus Holland would be an example.

William H. Rehnquist:

That was a treaty power case.

Kathryn Anne Oberly:

It is a treaty power case, but I think it demonstrates the importance–

William H. Rehnquist:

Well, it demonstrates the treaty power.

Kathryn Anne Oberly:

–North Dakota… United States versus North Dakota.

I may have it backwards.

Kathryn Anne Oberly:

I think it is North Dakota versus United States, which dealt with prairie potholes in North Dakota as important breeding grounds for migratory waterfowl.

That was statutory construction case.

But I think the Court has recognized in quite a few cases that–

William H. Rehnquist:

That the migration of birds is interstate commerce?

0 [Generallaughter.]

Kathryn Anne Oberly:

–That it can be.

If–

William H. Rehnquist:

Well, what… in what cases–

Kathryn Anne Oberly:

–Duck hunters.

William H. Rehnquist:

–In what cases have we recognized that?

Kathryn Anne Oberly:

I may be unable to give you a case, Your Honor, but I would suggest that duck hunters, interstate travelers who go to wildlife refuges to view ducks, migratory ducks who come from out of state, all of that together combines to make not just the birds alone but the viewing of the birds and–

Warren E. Burger:

It has an effect.

Kathryn Anne Oberly:

–It has an effect sufficient to constitute a connection with interstate commerce.

Warren E. Burger:

Can the states legislate contrary to the Migrant Birds Act?

Can Minnesota, for example, go contrary to the Federal Act on movement of ducks from Canada?

Kathryn Anne Oberly:

Not to my knowledge.

Warren E. Burger:

Haven’t we treated that in some case?

Kathryn Anne Oberly:

If you have, I am afraid that I am not–

Byron R. White:

Of course, there is an argument on this case that even if… whatever power Congress might have to legislate with respect to isolated potholes or wetlands, they didn’t in this case.

They just talked about effects on navigable waters.

Kathryn Anne Oberly:

–That is why, Your Honor, I was trying to explain–

Byron R. White:

Yes.

Kathryn Anne Oberly:

–what it is that an adjacent wetland, not an isolated wetland–

Byron R. White:

How about an isolated?

Kathryn Anne Oberly:

–This case isn’t an isolated wetland.

And so I therefore think it would be inappropriate for the Court to decide in this case what Congress intended with respect to isolated wetlands.

I also–

Byron R. White:

So we should be careful… we should be careful not to decide that case.

Kathryn Anne Oberly:

–I don’t think you have that case before you, but if you wish to put it before you, I think it is quite clear that in the legislative history of the 1977 amendments to the Clean Water Act, that Congress fully understood, and there is one portion in particular… it is a fairly lengthy section, but one portion of the Congressional–

Byron R. White:

Maybe some people who made the legislative history understood that, but is it reflected in the Act?

Byron R. White:

That is the question.

Kathryn Anne Oberly:

–Yes, Your Honor.

It is reflected Section 404(g) of the Act, which was an addition made in 1977, but as far as the debate is concerned, I would like to… when the Court is studying the case, I think the most helpful part is the Senate debate on the 1977 amendments, and it is quite extensive, at 123 Congressional Record, Page 26,710 to Page 26,728.

Those pages demonstrate beyond: question that Congress understood fully every aspect of the Corps of Engineers wetland regulatory program, including its regulation of isolated wetlands, its regulation of adjacent wetlands, how the Corps was phasing in expanded jurisdiction, and Congress made a deliberate choice.

Congress was getting vehement complaints from farmers and from foresters, others who said the Corps has gone completely overboard.

If you don’t stop it, cur normal activities like maintaining drainage ditches will be subject to 404 permits, and you can’t ever have meant that, and Congress came up with two alternatives.

One was to exempt the farmers’ activities from regulation.

The other alternative was to narrow by legislative definition the geographic scope of the waters and wetlands subject to Corps of Engineers jurisdiction, and the legislative history I have quoted to you demonstrates that Congress deliberately rejected the argument Riverside is urging in this Court, and instead chose to opt for the exemption route, and what it did in the new amendments to Section 404 was exempt normal farming and forestry activities from any regulation.

But it affirmatively left unchanged the waters and wetlands that are covered by the Act, and when I say that we know it is not just waters, it is also wetlands, I did refer you to Section 404(g), because what Section 404(g) does is establish a mechanism whereby states who qualify can take over the Section 404 permit program and administer it in lieu of the Corps of Engineers upon showing that they have adequate authority, but they are never under any circumstances… a state may never take over the 404 program insofar as it applies to traditional navigable waters and their adjacent wetlands, and that is spelled out exactly, precisely the way I have said it in Section 404(g).

So, here, going back to this wetland, the map in the back of the reply brief, we have a wetland that Michigan would never be allowed to regulate because it falls within the category of wetlands that Congress and the Corps of Engineers both deem the most important to the national interest, and therefore not subject or suitable for delegation to local control, and again, I come back to the point that our concern is not just this wetland or even just the Sixth Circuit.

Our concern is, if the Sixth Circuit is upheld, this is the one category of wetland that we know for sure Congress wanted to regulate.

We know that by the language of Section 404(g).

And if this wetland is held to be by this Court, or if the Sixth Circuit is affirmed, outside of the Corps’ jurisdiction, than there are no wetlands, isolated or whatever adjective you might use, that are covered at all.

That is clearly contrary to legislative intent.

John Paul Stevens:

Ms. Oberly, I am still… going back to the very beginning of the argument, I have to confess some uncertainty about the whole case.

I understood Judge Kennedy to find that there was no hydrologic connection between this property and any of the navigable waterways.

Kathryn Anne Oberly:

She found–

John Paul Stevens:

And is your map supposed to demonstrate that that basic point was just dead wrong?

Kathryn Anne Oberly:

–It is dead wrong.

It is also irrelevant, though, and I am not asking the Court to find that she was clearly erroneous, although I am convinced that she was.

John Paul Stevens:

When you say it is an adjacent… what do you mean by saying it is an adjacent wetland?

Do you mean that there is a hydrological connection?

Kathryn Anne Oberly:

Yes, in two different senses.

In this case there is a hydrologic connection through a visible surface connection, whereas all the evidence she took pertained to subsurface ground water flow, and that is the way in which I mean that her finding and her evidence is irrelevant, because–

John Paul Stevens:

And that nobody offered any evidence about surface flow?

Kathryn Anne Oberly:

–She had the same maps, but she made no findings.

John Paul Stevens:

I don’t know what… I am a little bit like Justice Rehnquist.

I don’t really know what the map proves, just looking at the map.

It proves that there is a surface flow?

Is that what you are saying?

Kathryn Anne Oberly:

It proves… the testimony in the record is that the property slopes to the southeast.

Therefore water from the wetland… this doesn’t require you to find facts.

It is already a fact in the record that the property slopes to the southeast.

Water from the wetland has to drain to these open water bodies.

And, yes, there is a surface connection.

If there were a concrete wall between–

John Paul Stevens:

Well, it has to drain, unless it sinks into the ground before it flows, I suppose.

It doesn’t sees to me you necessary have surface–

Kathryn Anne Oberly:

–It’s… I mean, it’s true that the soil here is quite wet, but at some point the ground is going to have all that it can hold, and the testimony in the record is, this has been a wetland for decades, possibly for over 100 years.

William H. Rehnquist:

–Did she make any finding on this?

Kathryn Anne Oberly:

On which?

William H. Rehnquist:

On the point that Justice Stevens asked you about.

Kathryn Anne Oberly:

The surface connection?

William H. Rehnquist:

Yes.

Kathryn Anne Oberly:

No, and she made no finding one way or the other.

But it’s–

John Paul Stevens:

She said as I understood it there was no hydrological connection.

You say that just refers to subsurface.

It doesn’t include surface.

Kathryn Anne Oberly:

–Because what she described as the only evidence she was talking about was underground holes that had been dug on the property to see how quickly water came in.

This was that expert testimony.

Kathryn Anne Oberly:

That’s correct, but she made no surface findings except as to flooding, and that was this direction.

She made no surface findings as to drainage in this direction.

John Paul Stevens:

It seems to me you are asking us to make a finding in the first instance on that point based on a map.

Kathryn Anne Oberly:

I don’t think you have to make a finding.

I think that the one or two factors I have given you, all of which are in the record, demonstrate beyond any question–

John Paul Stevens:

That because there is a slope to the property, necessarily there is a surface flow all across that… it is not that clear to me.

Maybe I am stupid.

Kathryn Anne Oberly:

–I am not sure if I am permitted to–

Harry A. Blackmun:

Ms. Oberly, before you sit down, could I try to straighten out one bit of confusion?

Harry A. Blackmun:

There is a good bit of discussion in your brief about Black Creek, which is to the east.

Kathryn Anne Oberly:

–That’s correct.

Harry A. Blackmun:

Now, this property seems to me from the map to be also adjacent to the Clinton River.

Is that of any significance, or is the entire flow to the southeast?

Kathryn Anne Oberly:

The direction of the flow is to the southeast, and we are not relying on the adjacency to the Clinton River, partly because within the property boundary, the part that is closest to the Clinton River is prior filled area, and therefore probably upland area.

Harry A. Blackmun:

So of no significance at all.

Kathryn Anne Oberly:

And so… it is not of no significance, because eventually Black Creek, even going to the east, if you then go north, Black Creek comes back to the Clinton River.

Harry A. Blackmun:

I was going to say, it just flows between the Clinton River and the lake.

Kathryn Anne Oberly:

You can view this whole area, Your Honor, as the lateral boundary of Lake St. Clair, as opposed to giving these individual water bodies separate names.

But we are relying primarily on the adjacency to Black Creek which in turn feeds into Lake St. Clair.

My time has expired.

Warren E. Burger:

Mr. Washburn.

Edgar B. Washburn:

Mr. Chief Justice, and may it please the Court, I must admit that I am somewhat amazed by the government’s position that has been articulated here today.

Essentially the government is displeased with the findings of the trial court, findings which the government did not object to in the Court of Appeals, and which were affirmed by that Court, and is now offering for the first time what it, I presume, is proposing as evidence of facts that were found to be to the contrary before Judge Kennedy.

I don’t mean to dwell on this issue, but I would like to point out that this very contention was made before Judge Kennedy, and was rejected by Judge Kennedy.

She found that there was no hydrologic connection between the Riverside property and any nearby water body.

That included Lake St. Clair, the Clinton River, Black Creek, or any of the canals that drained into Black Creek.

William H. Rehnquist:

Do you have at the tip of your fingers or tongue a citation to the record as to where she made that finding?

I don’t mean to interrupt your argument if you don’t.

Edgar B. Washburn:

It is at the appendix to the government’s petition for certiorari at Pages 24, 25, 34, 35, 36, 37, 28, and 31.

There are a series of findings that she made in her memorandum opinion.

She found that although there were wetland type plants growing on the property, that their existence was totally unrelated to the proximity of this particular piece of land to any water body, and moreover was completely unrelated to any inundation that may have occurred in the past.

And in that respect she found that the property had been flooded on an irregular basis no more than six times in 80 years.

Warren E. Burger:

Would you suggest that is not very much flooding?

Edgar B. Washburn:

In my opinion, Your Honor, that is very infrequent flooding.

Warren E. Burger:

Six in eight years?

Edgar B. Washburn:

Eighty years.

Warren E. Burger:

I thought you said eight.

Edgar B. Washburn:

Pardon me.

I thought I said 80.

Edgar B. Washburn:

I meant to say 80.

Harry A. Blackmun:

It is much like the Great Salt Lake.

It is about that frequency, and they are concerned about it out in Utah.

Edgar B. Washburn:

I don’t believe that is the situation for the Great Salt Lake, Your Honor.

That has been rising and falling over long periods of time.

The government makes the statement that this whole area should be considered a part of Lake St. Clair.

I might add that if that is the case, hundreds if not thousands of homes and businesses will also be part of Lake St. Clair.

I think the argument just doesn’t square with the facts.

The point is that Judge Kennedy made critical findings on the relationship of this land to any water body, both surface and subsurface.

The government maintains that she had no evidence before her concerning surface conditions.

She viewed the site.

She was able to see what was going on, and she made findings with respect to the hydrologic connection.

There is no suggestion that she limited her findings to only an underwater connection.

She did find that the type of soils that were on the property could not transmit, or it was so impervious that water would not move more than 50 feet through it, and on that basis concluded that soils were not saturated because of the relationship or proximity to any water body, the nearest water body being more than 200 feet away, and that was a canal that ultimately flowed into Black Creek.

The point is, this is an isolated wetland.

It is an area that is unconnected by either ground water or surface water to any water body.

It does possess poor drainage, and that is the reason why the wetland type vegetation was growing there.

This was the basis of her findings, and those findings were relied upon by the Court of Appeals in its decision.

The government before the Court of Appeals and its petition here, and I guess up until the time of its reply brief, was maintaining that any land such as Riverside’s which possesses wet soils or any reason, and those soils accommodate the growth of trees and other vegetation that are tolerant of wet conditions is a wetland which in turn means it is a navigable water, and regulated under the Clean Water Act.

And this is so, contended the Government, irregardless, irrespective of the relationship of this land to a water body, or any connection, either subsurface or surface connection, just as long as there was some other water body in the area.

We think that the Court of Appeals was correct in rejecting this construction of the phrase “navigable waters”.

Wetlands are not mentioned as being within the jurisdiction of the government under the Clean Water Act.

The definitional terms are contained in the 1972 amendments, and the Act applies to navigable waters.

Nowhere in that definition does the term “wetlands” appear, and in fact nowhere in the several thousand pages of legislative history surrounding the adoption of that Act does the word “wetlands” or anything equivalent to it appear.

Byron R. White:

That is the original Act?

Edgar B. Washburn:

That’s the original Act, Your Honor.

Byron R. White:

Yes.

Edgar B. Washburn:

Congress in adopting the 1972 amendments, had something specific in mind.

And what it had in mind was the fact that prior efforts at water pollution control had been restricted principally by agencies such as the Corps of Engineers, who had refused to exercise jurisdiction over any water bodies other than waters that crossed state lines.

As a result, Congress in 1972 sought to correct what it perceived to be a severe limitation, and to in essence follow cases decided by this Court concerning the definition of navigable waters.

Edgar B. Washburn:

The legislative history, and in particular the conference report to the 1972 amendments, is very clear on saying what Congress intended.

It referred to cases of this Court, and then stated that it was intending to bring within the Clean Water Act’s regulatory scheme navigable waters that were used in interstate commerce, their tributaries, as long as they were connected to interstate commerce, and then articulated that there could either be a connection through use of those waters in interstate commerce or if the waters ultimately connected to some other method of interstate commerce.

Sandra Day O’Connor:

Do you think that there is no indication that Congress would have been concerned about pollution flowing from adjacent wetlands into navigable waters of the United States, and want to regulate them?

Edgar B. Washburn:

The Act does regulate that, Your Honor, under Section 402.

If a pollutant ultimately ends up in a navigable water, it is subject to regulation under Section 402 as a point discharge.

What we have here is attempting to define the area where that pollutant may come from if it is a wetland, and being a navigable water itself, in instances where there is absolutely no connection between that wetland and the water body.

So in answer to your question, Congress was concerned, and it is regulated.

Under the government’s construction of the Act, something in the neighborhood of 100 million acres of wetlands will be covered.

We find this to be really not credible to say that Congress intended to regulate this acreage, which is the size of the state of California, without ever having mentioned that fact in either the Act or the legislative history when it adopted it in 1972.

This is not to say that the Clean Water Act does not regulate wetlands.

The government’s statement that no wetlands will be regulated is simply incorrect.

For example, tidal wetlands are regulated.

They are inundated by waters of the United States, or navigable waters, and come within the purview of the Act.

As a result, the tidal wetlands that border the Chesapeake Bay or San Francisco Bay or tidal areas in Florida come within the regulatory scheme of the Clean Water Act.

In a like fashion, those wetlands that are a part of or are regularly inundated by lakes and rivers also are regulated.

What is not regulated are those types of lands such as Riverside’s which have no water connection, surface water connection to a water body.

Congress did not intend to bring that type of area within the regulatory scheme of the Act.

The government in its briefs, at least, argues that in 1977, Congress’s refusal to adopt amendments that would have severely restricted the definition of navigable waters should be equated to a legislative endorsement of the Corps’ 1977 regulations.

First off, the 1977 regulations were first promulgated the same day that the bill that amended the 1977 Act was introduced into Congress, and the language as far as these provisions were concerned did not change, so unless Congress is more clairvoyant than I believe it to be, it didn’t even know what those 77 regulations were at that time.

They certainly didn’t know what the Corps was contemplating to do in the future in furtherance of those regulations, but more importantly, Congress did not change the definition of navigable waters.

What it did was to reject a proposed amendment that would have placed the regulation of navigable waters back to where it had been prior to 1972.

In doing that, I don’t think that it is appropriate to read into Congress’s inaction a positive finding in affirmance of the Corps’ conduct as manifested by its 1977 regulations.

This Court has consistently held that a failure of Congress to act is not tantamount to a manifestation of legislative intent.

And we see no reason why that doctrine should be departed from in this particular instance.

I would also note that in the legislative history to the 1977 legislative effort, Congress again restated what it thought it had done in 1972, and that was to regulate not only navigable waters, but also tributaries of those waters and intrastate waters that were navigable in fact.

That is consistent with what the legislative history surrounding the 1972 effort stated, and we see that Congress really was doing nothing different.

It was just restating what it originally intended, which is to get out from under the restrictive definitions of navigable waters that the Corps of Engineers had administratively employed prior to 1972.

The government in its briefs had argued that one of the purposes of the Clean Water Act was to prevent the conversion of any wetlands to any other use.

This has been in essence the foundation upon which it has been urging a liberal construction of the term navigable waters.

One of the problems with this contention is that if the goal is to prevent the conversion of wetlands to any other use, the most common methods of converting wetlands to other uses are not covered by the Act.

Edgar B. Washburn:

For example, draining wetlands, dredging or digging up wetlands as long as you don’t put the dredge spoils on the wetlands themselves, removing vegetation from wetlands, and burning wetlands are not covered.

In fact, the 1984 Congressional Office of Technology Assessment Report on the Status of Wetlands pointed out that since 1950, only 6 percent of the wetland conversions that had occurred occurred through urbanization and methods such as filling.

The remaining 94 percent had occurred through methods that were unregulated and are unregulated by the Clean Water Act.

The point is that the Clean Water Act was not designed to be a wetland protection statute insofar as isolated areas are concerned.

It was an act designed to prevent the pollution of the nation’s waters, and by defining navigable waters in the Act, Congress intended to include navigable waters, non-navigable tributaries of those waters, and non-navigable portions of those water bodies.

It intended to eliminate requirements that the waters cross state lines, and it also intended to abandon the requirement that the activity occur below the ordinary high water line, and would permit regulation as far as the water body extended, in other words, as far as the surface waters flowed.

That is what Congress had in mind.

That is what it stated it intended to do, and in our opinion that is what it did.

The Court of Appeals in reading the Act arrived at the same conclusion.

It concluded, and I think very reasonably so, that the term navigable waters as used in the Act does not mean that land that becomes wet and has no relationship to any water body.

Byron R. White:

You think the regulation then just exceeds the statutory authority where it says that a wetland is any area that is inundated or saturated by surface or ground water, whether it has got any connection with navigable water or not?

Edgar B. Washburn:

To the extent it is applied in a fashion that does not require surface connection, yes, it is invalid.

Byron R. White:

Or an underground connection.

Edgar B. Washburn:

The underground connection, I would say the same thing.

The surface water connection is what the Clean Water Act was seeking to regulate.

Ground water is not regulated by the Clean Water Act.

Byron R. White:

But that is what is infirm about these regulations, you say.

Edgar B. Washburn:

As applied, Your Honor, yes.

The Court of Appeals construed the regulations as requiring a surface water connection.

Byron R. White:

Do you defend that?

Edgar B. Washburn:

I have to admit I have some problems reading the regulations and arriving at that conclusion.

Byron R. White:

Yes.

Edgar B. Washburn:

But I think if the regulations are to be saved, that type of construction is required.

Byron R. White:

But you… as far as adjacency is concerned, would you say this is neighboring?

Edgar B. Washburn:

I would say it is not far away.

0 [Generallaughter.]

It is 200 feet away, Your Honor, from the nearest canal.

Byron R. White:

But if there was a connection–

Edgar B. Washburn:

I would say–

Byron R. White:

–then you would think the statute would authorize it.

Edgar B. Washburn:

–If there was a surface water connection, I would–

Byron R. White:

Or a ground water connection.

Edgar B. Washburn:

–Pardon me?

Byron R. White:

Or a ground water connection.

Edgar B. Washburn:

The Act doesn’t regulate ground water.

Byron R. White:

Well, it may not.

It may not.

But if you want a connection… suppose the expert had testified that this wetland involved here was made wet constantly and regularly by an underground seepage from the river, from navigable waters.

There was a hydrological connection between the navigable waters.

Edgar B. Washburn:

My position would be the same.

It is that Congress in adopting this Act did not intend to regulate that type of area.

In other words, an area that was only moist from a ground water connection.

That gets into a very complicated–

Byron R. White:

I see.

Edgar B. Washburn:

–matter.

Congress has struggled with this, how to regulate ground water.

Fortunately, here we don’t have that factual situation.

The findings are that there was no underground connection.

The second problem from our perspective of the government’s position is that once you depart from the requirement of the surface connection, there really is no limit to how far away from a navigable water an area can be and still be treated as a navigable water within the Act.

The adjacency requirement that is in the regulations was originally, in our opinion, inserted to describe those areas that were inundated by that water body.

But the government has abandoned that requirement in the 1977 regulations, and is now moving away from the water body, and we just don’t know how far away they intend to go.

We have heard in their reply brief that all that is necessary is some sort of aerial relationship.

We don’t know what that is.

One thing for certain, however, is that that type of aerial relationship offers no objective criteria by which a landowner can determine whether or not his property is subject to regulation under the Clean Water Act.

Given the–

Byron R. White:

I suppose it a fortiori would be contrary to the statute in your view to attempt to regulate that kind of a wetland.

Edgar B. Washburn:

–Yes.

If the relationship is something other than a water connection, surface water connection.

The government in its final pages of its brief seems to say that landowners should not be concerned about the indefiniteness and imprecise nature and perhaps even difficulties of determining whether or not their property is subject to regulation, because all that is needed is to engage in the permit procedure where everything can be worked out administratively.

In the government’s words, jurisdictional rules are of limited utility.

Edgar B. Washburn:

Well, they may be of limited utility from the perspective of the Corps of Engineers, but it is certainly not from a landowner’s perspective.

The process is time consuming.

It is expensive.

And it is uncertain.

The permit most likely will be denied, or if it is granted, it will be granted with conditions that require the provision of what is called mitigation, and in this instance, under the present regulations of the Corps and the EPA, litigation is construed as meaning that there should be no net loss of wetland area.

As a result, if a landowner such as Riverside is to secure a permit to fill ten acres, Riverside must acquire ten acres of non-wetlands, convert them to a wetland, and then give it to the government.

The point is that from the landowner’s point of view, the jurisdictional determination is the critical determination, for once jurisdiction attaches, all sorts of bad things begin to happen from the landowner’s perspective.

We think that landowners are entitled to a boundary that not only comports with the meaning of the Clean Water Act, and that is, it is limited to navigable waters and those areas that are connected to them by a surface water connection, but also that the agencies implementing that Act use objective criteria by which that particular boundary can be ascertained.

In this instance, the Corps’ regulations satisfies neither requirement.

It is out of compliance with the Act, and it offers no objective criteria by which a landowner can gauge his conduct.

I might add finally, and this is particularly appropriate in the state of Michigan, that wetlands, even isolated wetlands, are not unregulated.

As I pointed out earlier, many wetlands are presently covered by the Clean Water Act.

States such as Michigan also possess their own wetland regulatory schemes.

Michigan, for example, has a scheme that does regulate isolated wetlands under the police power.

We think that is where wetland regulation should be.

We think there is no need for the courts to construe the Clean Water Act in a fashion that will basically amend the Act to be one of wetland protection when that was not Congress’s intent.

In other words, there is neither a need nor a necessity for that type of interpretation to occur.

Unless there are any further questions, that concludes my presentation.

Warren E. Burger:

Thank you, counsel.

The case is submitted.