While this statute concerns the jurisdiction of a state to submit to the Administrator any plans it has for the discharge of dredged and fill materials into navigable waters of the United States (defined as “waters of the United States,” in 33 USCS § 1362(7), it describes the waters subject to this provision as “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 shoreward o their ordinary high water mark, including all water which are subject to the ebb and flow of the tides shoreward to their mean high water mark, or mea higher high water mark on the west coast, including wetlands adjacent thereto.”

Link to case: https://supreme.justia.com/cases/federal/us/474/121/

Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title33/USCODE-2023-title33-chap26-subchapIV-sec1344

Please note that the following brief was prepared by a student.

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

1. Plaintiff (Petitioner): United States, representing the EPA and Army Corps of Engineers.

2. Defendant (Respondent): Riverside Bayview Homes, Inc.

3. Court: Supreme Court of the United States

Facts: The respondent, Riverside Bayview Homes, Inc., is a real-estate developer based in Michigan that has been sued by the United States, which represents the EPA and the Army Corps of Engineers in this case. The United States brought legal action against the respondent because of their dumping of fill materials in wetlands near heavily navigable waters, Lake St. Clair, without a permit administered by the Army Corps of Engineers, a clear breach of the Clean Water Act, more specifically, § 404, 33 U.S.C.S. § 1344. Riverside Bayview Homes, Inc., “owns 80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan,” and started using fill materials on this property in 1976 to make the wetlands suitable for the construction of housing. The Army Corps of Engineers claimed the respondents’ marshy lands qualified as “waters of the United States,” under the Clean Water Act §404, even though the land was not navigable, which meant that the dumping of fill materials without a permit was a violation of federal law. 

Procedural History: As stated above, the petitioners (namely, the Corps of Engineers) claimed the contested property that was being dumped on did fall into the category of “adjacent wetland” found in the 1975 regulation which expanded “waters of the United States” to include “freshwater wetlands” and “not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and non navigable intrastate waters whose use or misuse could affect interstate commerce.” Therefore, the petitioners first filed suit against Riverside Bayview Homes, Inc. in the United States District Court for the Eastern District of Michigan, with the goal of receiving an injunction that would stop Riverside from filling the contested land without a permit administered by the Corps. 

The District Court ruled that Riverside's property sitting below 575.5 feet above sea level is considered wetland and, therefore, the respondent is enjoined from filling that land until it obtains authorization from the Corps. Riverside appealed this decision causing the Court of Appeals to remand consideration “of the effect of the intervening 1977 amendments to the regulation.” The 1977 amendments refer to the Corps’ re-definition of wetlands, removing a reference to “periodic inundation.” The 1977 definition states: "The term 'wetlands' means 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." 33 CFR [****6]  § 323.2(c) (1978).” The District Court then reaffirmed their initial holding stating that the contested property is considered wetlands given the Corps authority established in the Clean Water Act § 404.

Riverside appealed again, bringing the case to the Sixth Circuit Court of Appeals which then reversed the ruling of the District Court on the basis that adjacent wetlands do not have proficient standing as part of “waters of the United States” because the court believed that having this broader definition would lead to the confiscation of private property “without compensation,” resulting in a larger issue with the Fifth Amendment. Additionally, the Sixth Circuit believed that Congress did not intend to give full authority to the Corps in regulating the filling of wetlands unless these wetlands were impacted/ caused by flooding from navigable waters. Meaning, the court thought that the Corps did not have jurisdiction to regulate the respondents because their wetlands were not a result of flooding from adjacent navigable waters.

The case was then brought to the U.S. Supreme Court, which reversed and granted certiorari in order to further examine what the correct understanding of what the Corps’ regulatory jurisdiction is under the Clean Water Act, and how “waters of the United States” should be defined with the implication of wetlands in mind. The Supreme Court sided with the United States and the Corps’ interpretation of the Act and their fight for an injunction because the “language, policies, and history” of the Clean Water Act provides sufficient evidence that the Corps have holding to regulate via permit, the filling of wetlands adjacent to “waters of the United States” under §1344. The Supreme Court also noted that the Sixth Circuit’s claim to narrow the definition of wetlands and waters of the U.S. on the basis of a potential conflict with the Fifth Amendment, has no holding, especially because the Corps only requested an injunction, not a confiscation of private property.   

Legal Issue: The relevant legal issue is: Although the marshy, contested land was not a result of flooding from navigable waters, should the court take a broader interpretation of §404, 33 U.S.C. §1344, of the Clean Water Act, as it relates to the legalities surrounding adjacent wetlands and “waters of the United States,” therefore affirming the Corps’ jurisdiction to regulate the respondent's land?

Holding: What the court decided: Yes, the respondents’ contested wetland near navigable waters is protected under a broader reading of §404, 33 U.S.C. §1344 of the Clean Water Act, giving the Corps the jurisdiction to enjoin and regulate the filling of the respondents land until they have obtained a permit.

Rationale:  As stated above, the Supreme Court sided with petitioner, United States, in ordering an injunction of the respondents filling of “wetlands adjacent to waters of the United States.” This goes against the Sixth Circuit’s decree because the intent of the petitioner was not to “take” the property, but to merely oversee the filling and to hold the respondent to the requirement of obtaining a permit before such filling, as established in the Clean Water Act, specifically §1344. A broader interpretation of §1344 was taken by the Supreme Court on this point of protecting wetlands near navigable waters because of the ecological importance of wetlands. The Court wanted to set precedent with this case, and the overall interpretation of the Act because it firmly believed in the Act’s “purpose of restoring the ‘integrity of the Nation’s waters.” 

The Sixth Circuit’s narrow reading of the Act out of the fear that there might be constitutional conflicts if a permit be denied, and/ or land becomes less “economically viable” undermines the purpose of the statute as a whole. It is not the job of the Corps to dictate profitability of land, it is the Corps responsibility to administer the law that is written in the Clean Water Act. It is clear that the Supreme Court made the correct decision when reversing the ruling and claims made by the Sixth Circuit related to the potential constitutional difficulties that might follow an injunction order. Given the precedent set by a similar case: “adoption of a narrowing construction does not constitute avoidance of a constitutional difficulty” (Ashwander v. TVA, 297 U.S. 288, 341-356 (1936)). To solidify the err on behalf of the Sixth Circuit, there is a statute called the Tucker Act, 28 U.S.C. §1491, “which presumptively supplies a means of obtaining compensation for any taking that may occur through the operation of a federal statute.” This includes potential compensation for enjoined wetlands, as proven in Ruckelshaus v. Monsanto Co., supra, at 1017. This evidence firmly strikes down any claims against not ordering an injunction.

On the issue of whether wetlands adjacent to navigable waters should be protected under the CWA, it is clearly written into law that the Corps have jurisdiction to regulate “discharges into actually navigable waters and waters subject to the ebb and flow of the tide, "including wetlands adjacent thereto” (33 U.S.C. §1344 (g)(1)). 

Additionally, as stated in the Congressional Research Report, “Evolution of the Meaning of ‘Waters of the United States’ in the Clean Water Act,” the rationale for the Court’s decision also resided in the fact that: “Instead of applying a narrow approach to avoid constitutional implications, the Court gave deference to the Corps' position, and concluded that because "[w]ater moves in hydrological cycles" rather than along "artificial lines," it was reasonable for the Corps to conclude that "adjacent wetlands are inseparably bound up with the 'waters' of the United States . . . ." (Mulligan, 2019).

Finally, it is necessary to note a present-day update. In recent years, the definition of what includes, “waters of the United States,” has been narrowed, which now means that not all adjacent wetlands are protected. This comes after Sackett v. EPA (2023) which ruled in a 5-4 decision with Justice Alito presenting the majority opinion. This Supreme Court did not believe in a broad interpretation of the Act because of the worry that the federal government was overstepping into private property use and profitability. 

Dissenting Opinion: None. Unanimous decision was reached. 

Link to the United States Code (2024 edition): https://www.govinfo.gov/app/details/USCODE-2024-title33/USCODE-2024-title33-chap26-subchapIV-sec1344/summary

Link to case: https://supreme.justia.com/cases/federal/us/557/261/

Please note that the following brief was prepared by a student.

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

a. Plaintiff: Southeast Alaska Conservation Council; environmental groups
b. Defendant: Coeur Alaska, Inc.; State of Alaska

2. Facts

Coeur Alaska, Inc. sought to reopen a gold mine in Alaska using a froth flotation process that produced a waste byproduct known as slurry (a mixture of crushed rock and water). The company planned to dispose of this slurry by discharging it into a nearby lake. To do so, Coeur Alaska obtained a permit from the U.S. Army Corps of Engineers under 33 U.S.C. § 1344, which governs the discharge of dredged or fill material. Environmental groups challenged the permit, arguing that the discharge should instead be regulated under § 1342 by the EPA and that it violated EPA performance standards established under § 1316 (261).

3. Procedural History

This case originated in the United States District Court for the District of Alaska. The plaintiffs, Southeast Alaska Conservation Council (SEACC) and other environmental groups, challenged the Army Corps of Engineers’ issuing of a Section 404 permit to Coeur Alaska for the discharge of mining slurry into Lower Slate Lake. The District Court granted summary judgment in favor of the defendant, Coeur Alaska, and the Army Corps, upholding the permit.

The plaintiffs appealed the decision to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit reversed the District Court’s judgment, ruling that the discharge was subject to the EPA’s performance standards under Section 306, which would prohibit the discharge of such slurry into the lake (11).

Coeur Alaska and the state of Alaska subsequently petitioned for a writ of certiorari to the Supreme Court of the United States. The Supreme Court granted certiorari to resolve the conflict between Section 402 and Section 404 of the Clean Water Act. In June 2009, the Supreme Court reversed the Ninth Circuit’s decision and remanded the case for further proceedings, concluding that the Army Corps, not the EPA, had the authority to issue the permit (21).

4. Legal Issue

Under 33 U.S.C. § 1344, did the U.S. Army Corps of Engineers have the authority to issue a permit for the discharge of slurry as “fill material,” or should it instead be regulated under other provisions of the Clean Water Act, including § 1316 performance standards and § 1342 permitting requirements?

5. Holding

Yes. The Supreme Court held that the Corps of Engineers had authority under 33 U.S.C. § 1344 to issue the permit because the slurry qualified as “fill material,” and therefore the discharge was properly regulated under § 1344 rather than § 1342 (261).

6. Reasoning:

The Court’s reasoning focused on interpreting the statutory structure of the Clean Water Act and resolving ambiguity between overlapping provisions.

First, The Court emphasized that § 1344 explicitly grants the Corps authority to issue permits for the discharge of “fill material.” The agencies had jointly defined “fill material” to include substances like slurry that change the bottom elevation of a water body. Since the slurry discharged by Coeur Alaska met this definition, it fell within § 1344 (266).

Second, the Court addressed the apparent conflict between § 1344 and § 1316 performance standards, which prohibit certain pollutant discharges. The Court found that the statute was ambiguous regarding whether these performance standards applied to discharges regulated under § 1344 (281). To resolve this ambiguity, the Court deferred to the EPA’s interpretation of its own regulations. The EPA had interpreted the statute to allow § 1344 permits even where performance standards might otherwise apply. The Court held that this interpretation should be upheld (282).

Finally, the Court rejected the argument that requiring dual permitting under both § 1342 and § 1344 would better serve environmental goals. It reasoned that Congress intended to create a clear division of authority between agencies, and overlapping requirements would create confusion and inefficiency (285).

Therefore, the Court concluded that § 1344 governs discharges of fill material, even when those discharges might implicate other provisions of the Clean Water Act.

7. Dissenting Opinions

Justice Ginsburg, as well as Justice Stevens and Justice Souter, dissented, arguing that the majority’s interpretation undermined the environmental protections of the Clean Water Act.

The dissent argued that EPA’s performance standards under 33 U.S.C. § 1316 clearly prohibit the discharge of mining waste like slurry into navigable waters. According to the dissent, allowing the discharge under § 1344 creates a loophole around these stricter standards (297). Justice Ginsburg emphasized that Congress intended the Clean Water Act to impose strong, technology-based limits on pollution, and that these limits should not be avoided by classifying waste as “fill material.” The dissent warned that the majority’s decision creates a loophole that allows significant pollution to escape regulation under the more stringent EPA standards (Adams, 2010, p. 448).

Ultimately, the dissent argued that the discharge should have been regulated and prohibited under § 1316 and § 1342, rather than permitted under § 1344.

Link to the United States Code (2024 edition): https://www.govinfo.gov/app/details/USCODE-2011-title33/USCODE-2011-title33-chap26-subchapIV-sec1344

Link to case: https://supreme.justia.com/cases/federal/us/531/159/

Please note that the following brief was prepared by a student.

1. Heading: Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) 

a. Petitioner: Solid Waste Agency of Northern Cook County (SWANCC)

b. Respondent: United States Army Corps of Engineers 

c. Court: United States Court of Appeals 

2. Facts 

SWANCC consisted of a group of municipalities, seeking to build a landfill on an abandoned sand and gravel pit in Illinois. Over time, the site developed isolated ponds that became habitats for migratory birds. The U.S. Army Corps of Engineers denied a permit under §404 of the Clean Water Act, claiming jurisdiction based on the “Migratory Bird Rule,” which extended federal authority to waters used by migratory birds, but SWANCC argued against this, claiming that the waters were isolated, intrastate and non-navigable. 

Section 404, which is addressed in Solid Waste Agency v. The United States Army Corps of Engineers regulates the discharge of dredged or fill material into wetlands and other waters. Under this section and under certain conditions, the EPA may prohibit, restrict or deny the issuance of a permit to discharge these materials if the Administrator decides that there would be an unacceptable adverse effect on resources.

3. Procedural History 

The district court upheld jurisdiction and ruled for the Corps, that the Clean Water Act extended to non-navigable intrastate waters, which was upheld by the Seventh Circuit Court of Appeals. 

4. Legal Issue 

According to the Clean Water Act 33 U.S.C. § 1344(a), does the U.S. Army Corps of Engineers have the authority to regulate isolated, non-navigable intrastate waters under the Migratory Bird Rule? 

5. Holding 

No, according to the Clean Water Act 33 U.S.C. § 1344(a), the U.S. Army Corps of Engineers does not have the authority to regulate isolated, non-navigable intrastate waters under the Migratory Bird Rule. 

6. Rationale 

The Court held that the Clean Water Act’s term “navigable waters” does not extend to isolated, non-navigable intrastate waters, and without a clear statement from Congress, the United States Army Corps of Engineers therefore cannot assert jurisdiction based solely on the Migratory Bird Rule. 

The act regulates “navigable waters” as part of the “waters of the United States”, which offers a broad statutory interpretation that does not extend beyond the statute’s specific text to isolated ponds. Additionally, the case lacks prior precedent to determine whether or not the act is relevant in this case, as the court allowed regulation of wetlands adjacent to navigable waters in

United States v. Riverside Bayview Homes, but there was no significant nexus surrounding the waters, and the ponds were isolated in that case. 

Furthermore, the court stresses the importance of the fact that land and water use regulation is traditionally a state power, and that allowing the United States Army Corps of Engineers to regulate isolated ponds would expand federal power to state jurisdiction, intruding on state authority. 

Lastly, the desire to avoid constitutional problems raises the petitioner’s argument that migratory birds affect interstate commerce, though the court returns that this is too broad of an interpretation of the Commerce Clause, and that it raises constitutional doubts. 

7. Dissenting Opinion 

The dissent was written by Judge Stevens, and strongly disagreed with the majority on the interpretation of the Clean Water Act, arguing that the definition of “top restore and maintain the integrity of the Nation’s waters” allows for a broad interpretation, and that ecologically important waters include isolated waters as they still affect larger ecosystems, and are not truly isolated in the ecological sense, and should thereby be encompassed by the act. 

Judge Stevens also agrees that the Commerce Clause is satisfied as migratory birds generate billions in interstate economic activity, a large amount which justifies using federal over state regulation for the matter.