B. Congress' jurisdictional intent

Assuming that the federal permitting scheme controls in the instant cases,[6] this Court must determine whether the Corps through its current definition of "waters of the United States" has properly interpreted Congress’ intent regarding the waters that are to be regulated under the CWA. This Court has discussed the bounds of federal jurisdiction over wetlands in two cases: United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); and SWANCC. When these cases are read in conjunction, it is clear that Congress intended to limit the CWA’s jurisdictional reach to waters covered by the Corps’ 1974 definition[7] of navigable waters and to wetlands adjacent to and inseparably bound up with such waters.

This conclusion is justified by the statutory and regulatory history related to the CWA and the Corps’ definition of "navigable waters" and/or "waters of the United States." As part of the Federal Water Pollution Control Act (FWPCA) Amendments of 1972,[8] Congress created a program for issuing fill permits. Under this program, the "discharge" of any "pollutant" is generally prohibited. 33 U.S.C. § 1311(a). Rock, sand, and dirt are treated as pollutants, 33 U.S.C. § 1362(6), and discharge is defined as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). A party that wants to discharge fill into a "navigable water" has to obtain a permit, 33 U.S.C. § 1344(a), and most importantly to the instant cases, "navigable waters" is defined as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7).

It is clear that in enacting the definition in § 1362(7), Congress was simply attempting to remedy perceived shortcomings in the Corps’ interpretation of the term "navigable waters" under sections 10 and 13 of the Rivers and Harbors Act of 1899. In a report published in 1972, Congress admonished the Corps for merely seeking jurisdiction over navigable-in-fact waters, instead of including waters that had been navigable in fact, or waters that with reasonable improvements could become navigable in fact. H.R. Rep. No. 92-1323 at 29-30 (1972).

After this admonishment, and one month prior to the enactment of the FWPCA Amendments of 1972, the Corps promulgated a regulation that defined "navigable waters" as "those waters which are presently, or have been in the past, or may be in the future susceptible for use for purposes on interstate or foreign commerce." 37 Fed. Reg. 18,289, 18,290 (Sept. 9, 1972).

The definition was expanded slightly in 1974. The Corps defined "navigable waters" as "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) (1974).

A lawsuit was brought challenging this definition on grounds that it was not broad enough, and a district court judge held that Congress meant to assert jurisdiction over water to the fullest extent permissible under the Commerce Clause, a concept the court did not define. Natural Res. Def. Council v. Callaway, 392 F. Supp. 685 (D. D.C. 1975). The Corps was given forty days to issue a new regulation.

Rather than appeal, the Corps instead promulgated an interim regulation that significantly broadened the definition of "navigable waters" to include "freshwater wetlands including marshes, shallows, swamps and similar areas that are contiguous or adjacent to other navigable waters." 40 Fed. Reg. 31,320, 31,324 (July 25, 1975). Other navigable waters included tributaries of rivers, lakes, and streams. Id. Also included were "intrastate lakes, rivers, and streams" that were used recreationally or that were tangentially related to commercial fishing, industry, or agriculture. Id.

In 1977, the Corps finalized the regulation. 42 Fed. Reg. 37,122 (July 19, 1977). At that time, Congress was considering amendments to the CWA. An amendment that would have limited federal jurisdiction of wetlands to the Corps’ more narrow 1974 definition passed the House, but a similar amendment was defeated in the Senate. Hence, the CWA amendments that Congress passed on December 27, 1977, did not change the CWA definition of "navigable waters."

Over the years, the Corps’ 1977 definition of "navigable waters" has become slightly more expansive, and eventually the Corps settled on its current definition of "waters of the United States." Aside from the creation of the Migratory Bird Rule (discussed below), the course of definitional changes from 1977 to the present is not pertinent here.

This Court’s first decision regarding the scope of federal jurisdiction under the CWA was Riverside Bayview Homes. There, this Court determined whether the owner of "80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan" needed to obtain a fill permit.[9] 474 U.S. at 124. The wetlands at issue extended past the owner’s property line and were adjacent to a navigable creek. Id. at 131. This Court indicated that there were two questions presented: (1) whether the property was an "adjacent wetland" under the regulation (essentially the same regulation at issue here); and (2) whether the Corps could require the owner to obtain a permit.

Foreshadowing this Court’s actions in SWANCC, the Sixth Circuit had narrowly construed the Corps’ jurisdictional regulation in its Riverside Bayview Homes decision to avoid a constitutional problem – in that case, a potential regulatory taking, rather than the scope of Congress’ commerce power, the issue presented in the instant cases.[10]

But this Court held that there was no justification for the Sixth Circuit’s narrow construction of the regulation, since even if there were to be a taking, the owner of the property would be compensated. Therefore, this Court did not believe that there was a serious constitutional issue presented.

This Court then indicated that in enacting the CWA, Congress did not choose to limit the waters covered to traditional navigable waters. Congress’ decision to define "navigable waters" as "waters of the United States" meant that the term " ‘navigable’ as used in the act is of limited import." 474 U.S. at 133. This Court stated that Congress intended to "regulate at least some waters that would not be deemed ‘navigable’ under the classic definition of that term," id., concluding that it was permissible for the Corps to regulate wetlands that were adjacent "to waters as more conventionally defined." Id. The Corps’ conclusion "that adjacent wetlands are inseparably bound up with the ‘waters’ of the United States," id. at 134, was cited with approval. Thus, this Court held that the Corps’ construction of the statute was entitled to deference under Chevron. In Riverside Bayview Homes, unlike SWANCC, this Court did not discuss whether a Commerce Clause consideration would prevent deference to the agency’s interpretation of its jurisdiction under the CWA. Thus, this Court concluded that the Corps properly asserted jurisdiction over the wetlands at issue.

This Court also noted that it was 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." Id. at 131-32 n. 8. Therefore, the key concepts were that the wetlands needed to be adjacent to "open water" and inseparably bound up with those waters.

This Court’s second case discussing federal jurisdiction under the CWA was SWANCC. There, a consortium of Illinois municipalities was seeking to locate and develop a disposal site for nonhazardous solid waste. The consortium chose an abandoned sand and gravel pit. Over the course of time, the excavation trenches from that site became seasonal ponds. The consortium sought to fill some of these ponds. The Corps originally concluded that it did not have jurisdiction over the ponds because they did not meet the definition of wetlands. But in 1986, the Corps, without following the dictates of the Administrative Procedure Act, had issued the "Migratory Bird Rule." This regulation purported to give the Corps jurisdiction over intrastate water that could be a habitat of migratory birds.

After the Corps claimed that it had jurisdiction solely due to the Migratory Bird Rule and denied the consortium a fill permit, the consortium brought suit. This Court held that the Migratory Bird Rule was not fairly supported by the CWA. It also clarified the Riverside Bayview Homes holding.

In SWANCC, this Court explained that the key concept in Riverside Bayview Homes was the proximity of the wetlands to traditional navigable waters:

[W]e 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 474 U.S. at 135-139. We found that Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands "inseparably bound up with the ‘waters’ of the United States." 474 U.S. 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. . . ." 474 U.S. 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.

531 U.S. at 167-68.

This Court emphasized that the Corps’ 1974 regulation correctly set forth Congress’ intent about the waters to be regulated. Id. at 168. This Court rejected the argument that Congress acquiesced in 1977 to the Corps’ broadened definition of CWA jurisdiction; rather, the most Congress had contemplated in 1977 was extending federal jurisdiction to waters covered by the Corps’ 1974 regulation and wetlands that were adjacent to and inseparably bound up with those waters:

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’ [1977] regulations or the "Migratory Bird Rule," which, of course, did not first appear until 1986. . . . 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.

Id. at 170-71.

The next question addressed was whether Chevron deference should apply. Under the traditional Chevron analysis, when construing an agency regulation, the courts must consider two issues: (1) whether Congress’ intent was clear, since Congress’ clear intent must be given effect; and (2) whether, in cases where Congress’ intent was not clear, the agency’s interpretation was based on a permissible construction of the statute. 467 U.S. at 842-43. The courts defer to the agency’s determination whenever an agency must fill a statutory gap. Id. at 843-44.

In SWANCC, this Court held that the CWA was clear. This ruling would ordinarily end the analysis; however, this Court then went on to address the level of deference the courts should give an agency regulation that nears a boundary of Congress’ power:

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, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988). This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize 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, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971) ("Unless 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, 485 U.S. at 575.

531 U.S. at 172-73.

The above is an exception to the norm of agency deference. Respectfully, however, this Court’s ruling in SWANCC is a partial solution to a much larger underlying problem: the delegation of important legislative issues to unelected and largely unaccountable federal agencies.SWANCC does require that the people’s elected representatives explicitly make the decision that pushes the boundaries of Congress’ constitutional powers, but this still leaves many other significant issues to be decided by federal agencies.

Whatever the basis for SWANCC’s modified Chevron rule, it is clear that the Corps’ current, expansive jurisdictional regulation should not control in these cases. As a primary matter, in SWANCC, this Court held that the CWA was clear; Congress intended to regulate only those waters that meet the Corps’ 1974 definition of "navigable waters" and those wetlands that were adjacent to and inseparably bound up with those waters. None of the instant properties meets this conjunctive test. None of the properties is adjacent to waters that are navigable, were navigable, or with reasonable effort could become navigable. Therefore, federal jurisdiction should not extend to any of the properties.

But even if this Court now determines that the CWA is ambiguous, the modified Chevron rule does not grant deference to an agency determination that pushes the limit of congressional authority, as the Corps’ current definition clearly does. Hence, the regulation should be interpreted to avoid constitutional issues, a goal this Court can accomplish by interpreting the regulation to extend jurisdiction only to waters like those in Riverside Bayview Homes and SWANCC – waters that meet the Corps’ 1974 definition, as well as wetlands that are adjacent to and inseparably bound up with the waters in that definition.

[6] Michigan law regarding wetlands and the effect of 33 U.S.C. § 1344(g) will be discussed below.

[7] This definition will be set forth below.

[8] The Federal Water Pollution Control Act is the CWA’s formal title.

[9] This description seems incomplete given that the property had been platted for a subdivision as early as 1916, at which time storm drains and fire hydrants were installed. United States v. Riverside Bayview Homes, Inc., 729 F.2d 391, 392 (6th Cir. 1984), rev’d, United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). Further, the wetlands came into being only in 1973, due to the creation of an emergency dike in relation to rising water levels in Lake St. Clair. Id. at 393. The owner started filling the property in 1976.

[10] The Sixth Circuit’s decision was issued three months before this Court’s decision in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The Sixth Circuit therefore did not address that case.