WETLANDS PROTECTION-A GOAL WITHOUT A
STATUTE
Vickie V. Sutton·
I. Introduction
With the exception ofthe "Swampbuster" provision in the Food Security Act, I
Congress has never articulated the goal ofwetlands protection. However, legislative
history indicates that Congress did not intend that a wetlands program administered
by the federal government would become institutionalized. Rather, the history
shows Congress intended to transfer the wetlands program, as well as the National
Pollutant Discharge and Elimination System permitting program, to the states as
soon as possible. Moreover, the use ofthe term "navigable waters" as the source for
jurisdiction over wetlands demonstrates the broad reading ofthe statute, which has
also caused difficulties with implementation and jurisdiction.
The difficulty ofachieving the goal ofwetlands protection arises because ofthe
regulatory mismatch between wetlands protection and the Clean Water Act (CWA).
Beyond those difficulties posed by the inconsistencies in the legislative history of
wetlands protection, the wetlands regulations are premised upon an ecological
definition of wetlands -- an area where science is uncertain. The protection of
wetlands would rest more easily if based on a premise of ethics, aesthetics, and
planning rather than a sketchy or vague scientific premise. Such a basis is examined
as a source of federal legislation. Commerce clause justification for wetlands law
introduces a continuing problem with federal regulation in the area ofproperty rights
often reserved to states.
The mismatch problem raises questions concerning Fifth Amendment takings
issues and is partially responsible for grave concerns among environmentalists
supporting regulatory reform of wetlands regulations. Challenges based on
violations ofthe Administrative Procedure Act also continue to plague the wetlands
program.
• Dr. Vickie V. Sutton, Associate Professor, Texas Tech University School ofLaw, received
a J.D. magna cum laude from American University, Washington College of Law; a Ph.D. in
Environmental Sciences from the University of Texas at Dallas; an M.P.A. from Old Dominion
University; and two Bachelor of Science degrees in Animal Science and Zoology cum laude from
North Carolina State University.
I Food Security Act of 1985, Pub. L. No. 99-198, 99 Stat 1504 (codified as amended at 16
U.S.C. §§ 3821-3823 (1994».
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Interpretation ofthe Clean Water Act has also caused controversy concerning
the wetlands provisions. Challenges have arisen over the delegation of authority
from Congress to the agencies, and whether that authority has been exceeded.
Finally, the recent decision in American Mining Congress v. United States Army
Corps ofEngineer?" struck down the Tulloch rule and provided further indication
that this statute does not match the goal of wetlands protection. The Tulloch rule
prevented the drainage ofwetlands by controlling dredging activities and prohibiting
any activity that would result in fill dirt, a "pollutant," falling into the wetland.
Dredging, however, by definition cannot be done without this result. Thus, the
tortured reading ofthe statute resulted in a similarly tortured rule, which the court
in American Mining rescinded.
This significant blow to the agency's authority to prevent draining ofwetlands
vitiated the Clean Water Act in terms of wetland protection. In his trial court
opinion, District Court Judge Stanley Harris stated, "The appropriate remedy for
what the agencies now perceive to be an imperfect statute however, is Congressional
action; defendant's authority is limited to adopting regulations that effect the will of
Congress as expressed in the statute.,,3
The difficulties encountered in applying the Clean Water Act over the past
twenty-five years provide valuable insight into the regulatory mismatch problem.
The idea that a Congressional determination that wetlands must be preserved, not
only for scientific, but also for aesthetic and ethical reasons, would provide a
constitutional basis for wetlands legislation, is examined in this paper. The
difficulties encountered when basing law on an ambiguous scientific basis are also
examined and certain solutions are considered. The concept of returning to the
original intent ofCongress through examination ofthe Clean Water Act's legislative
history regarding the delegation ofauthority' to the states is also considered. Finally.
the movement of federal permit programs to state implementation (similar to the
NPDES permitting program), as originally intended by the legislators, is examined.
II. Revelations of "Mismatch" in the Legislative History
A. "Wetlands" Conspicuously Missing
Water pollution control began in 1899 with the U.S. Rivers and Harbors Act and
included the term "navigable waters." This term proved to be one of the most
controversial in the statute because of its later interpretation to include wetlands.
However, the term "wetlands" is conspicuously missing from the original Clean
Water Act.
2
3
American Mining Congress v. United States, 145 F.3d 1399 (D.C. Cir. 1997).
American Mining Congress v. United States, 951 F. Supp. 267, 278 (D. D.C. 1997).
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The term "wetlands" has only come into usage in the last halfofthe twentieth
century, and includes earlier words used to describe what are now wetlands
including: "swamps," "mire,"
"bog,"and "fen.,,4
B. Historical Federal Policy to Protect States' Jurisdiction on Water
Pollution Control
The history ofCongressional action relating to clean water necessarily begins
with the U.S. Rivers and Harbors Act of 1899, which includes a reference to
"navigable waters," and the Refuse Act of 1899,s which "prohibits" the discharge of
any matter into the navigable waters.,,6 This legislation sufficed for a growing nation
during the industrial revolution. The first comprehensive federal legislation for the
control ofwater pollution was the Water Pollution Control Act of 1948. 7 The 1948
Act terminated on June 30, 1956 and was replaced by the Water Pollution Control
Act Amendments of 1956. The House Report from the Committee on Public Works
stated that they intended to "extend and strengthen"g the 1948 Act, and emphasized
Congress' policy of protecting state rights and responsibilities in controlling water
pollution:
The bill as reported reemphasizes the policy of the Congress to
recognize, preserve, and protect the primary rights and
responsibilities of the States in controlling water pollution. . . .
Regulatory authority at the Federal level should be limited to
interstate pollution problems and used on a standby basis only for
serious situations which are not resolved through State and interstate
collaboration.9
Two of the three changes cited in the existing law, concern the recognition of
state authority over pollution control. The Act's policy statement clearly intended
to avoid federal jurisdiction over pollution control. "Section 1(b) provides that
nothing in the act shall be construed as impairing or affecting any right or
4
NATIONALREsEARCHCOUNCIL,WETLANDs: CHARACfERISTICS AND BOUNDARIES 43 (1995).
533 U.S.C. § 407 (1994).
6 FEDERAL WATER POLLUTION CONTROL Acr AMENDMENTS OF 1972, S. REp. No. 92-414, at
5 (1972), reprinted in 1972 U.S.C.CAN. 3668, 3672 (citing Refuse Act of 1899 §13).
7 Water Pollution Control Act of1948, Pub. L. No. 80-845, 62 Stat 1155 (1948)(codified as
amended in scattered sections of33 U.S.C.).
8 WATER POLLUTION CONTROLAcr AMENDMENTS OF 1956, H.R. REP. No. 1446, at 2 (1956),
reprinted in 1956 U.S.C.C.A.N. 3023, 3024.
9Id.
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jurisdiction of the States with respect to their waters."IO
The new legislation established the Public Health Service as the lead research
agency with the goal ofdetermining "the impact ofnew pollutants on public health
and other vital water uses, and to find more practical and economically feasible
abatement measures.,,1l The Surgeon General received authority to develop
comprehensive programs to implement and enforce the Act, and the states received
grants enabling them to establish pollution control programs. The Act also
prevented the Surgeon General from issuing regulations without prior agreement
with the states. Moreover, the Water Pollution Control Advisory Board was
expanded to provide for greater participation by local government rcpresentatives. 12
During the same session ofCongress, President Eisenhower vetoed the Rivers
and Harbors Act of 1956, which provided federally mandated commissions to
implement bridge building programs among the states. President Eisenhower was
not opposed to the appropriation of funds for these bridges, but, among other
concerns, he recognized a lack of state participation that would result from such
commissions. In President Eisenhower's message concerning his veto he states:
In various messages to the Congress, I have clearly stated my view
that our vital water resources can best be conserved and utilized in
the public interest if the Federal Government cooperates with State
and local governments and with private interests in the development
of those resources, and does not undertake such development as
though it were a matter of exclusive Federal interest. 13
The message goes on to explain his policy of state involvement:
I believe that authorization ofwater resources projects on such terms
would represent a serious backward step in the desirable
development ofthe Nation's water resources, and would result in the
loss ofthe best test yet devised for insuring that a project is soundthe willingness oflocal people to invest their own money in a joint
enterprise with the Federal Government. 14
101d. at 3026.
ld. at 3025.
12Seeid.
II
13 President's Message Memorandum of Disapproval, August 10, 1956, reprinted in 1956
U.S.C.C.A.N. 4828, 4829.
141d.
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In 1956, the existing water pollution law was strongly constructed and involved
states as the lead participants with comprehensive programs, regulation development, and enforcement exclusively under the control ofthe Surgeon General. IS The
Refuse Act of 1965, however, created the Federal Water Pollution Control
Administration, and the federal portion of the 1956 law was delegated to this
Commission housed in the Department of Health, Education, and Welfare. The
Surgeon General, as head of the Public Health Service, reported to the Secretary of
Health, Education, and Welfare, but the exclusive control of water pollution
activities was now shared by the Surgeon General with the newly created Commission. 16 Significantly, the states were given requirements to develop standards for
water quality within their boundaries, and such requirements were to be submitted
to the new Commission for approval by July 1,1967.17
Instability in the federal authority over implementation begins to appear with
the shifting ofthe Federal Water Pollution Control Administration from its historical
association with the Department ofHealth, Education and Welfare to the Department
of the Interior in 1966,18 and then shifting again in 1970 to the Environmental
Protection Agency (EPA). Congress moved to broaden and intensify federal support
ofthe states in water pollution control by authorizing a total of$3.4 billion for the
construction ofwastewater treatment plants; $150 million was scheduled for 1967,
with the funding increasing inl971 by an additional $1.25 billion.19 But trouble was
brewing in the states. The states' deadline to set water quality standards passed on
July 1, 1967 and the majority of states had not yet complied.20
A significant year in the history of environmental policy in the United States
was 1970, when the first Earth Day was held. A surge in public interest indicated
that protecting the environment was a national priority. This popular attitude
encouraged significant changes in water pollution control laws. The Subcommittee
on Air and Water Pollution ofthe Senate Committee on Public Works was charged
with environmental legislation. The strong interest in environmental legislation by
this Subcommittee prevented passage ofnew waterpollution control laws until 1972.
While hearings "on water pollution abatement and control" were held during April,
May, and June of 1970, the Subcommittee's work with the Clean Air Act of 1970
15 Water Pollution Control Act Amendments of 1956, Pub. L. No. 660, §§ 10, 12,70 Stat 498
(1956), reprinted in 1956 U.S.C.C.A.N. 560, 570-71.
161d.
17 FEDERAL WATER POLLUTION CONTROL Acr AMENDMENTS OF 1972, S. REp. No. 92-414
(1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3669.
181d. at 3669-70.
191d. at 3670.
2Q
ld. at 3671.
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and the Resource Recovery Act of 1970 prevented them from developing a water
pollution control bill for the full Committee.21 Prior to these amendments,
legislation and Committee reports referred to "water pollution control" legislation,
but in 1969 and 1970 the word "abatement" was introduced into the Committee
language concerning water pollution control amendments. The National Environmental Policy Act of 1969 was signed into law on January 1, 1970, and called for a
national policy "to promote efforts which will prevent or eliminate damage to the
environment and biosphere ... .'>22 Also in 1970, President Nixon, in another
milestone in environmental policy, issued a reorganization plan creating the EPA.
Thus, authority over the Federal Water Pollution Control Administration changed for
the third time in the five years since its creation.23
Amendments in 1970 added new sections to existing water pollution control
laws dealing with liability for cleaning up oil discharges, discharges of hazardous
substances and sewage from vessels, and the regulation of federal activities
affecting water quality.24 Late in 1970, an Executive Order issued by President
Nixon exercised dormant statutory authority in the Refuse Act of 1899 to create a
permit program regulating discharges into navigable waters.2S The U.S. Army Corps
ofEngineers (USACE), historically charged with implementing navigation law, was
given responsibility for implementing the permit program and issuing necessary
regulations. 26 Although the USACE's specialty is navigation law, this was the first
~
effort to involve the Corps in environmental issues. 27
Congress was uneasy about the implementation of the new permit program.
Division among the agencies was one ofthe first Committee jurisdictional conflicts
that began the fragmentation ofenvironmental statutes among multiple Congressional committees. The Committee considered integrating the permit program between
§ 13 of the Refuse Act and § 402 of the Federal Water Pollution Control Act
Amendments ofl97 1.28 An amendment was proposed to transfer all permit authority
to the newly created EPA and to treat dredging and filling as polluting activities. 29
21/d. at 3670.
22
42 U.S.C. § 4321 (1994).
23
Reorg. Plan No.3 of 1970, 35 Fed. Reg. 15,623 (1970), reprinted in 84 Stat. 2086 (1970).
24
Water Quality Improvement Act of 1970, Pub. L. No. 91-224, 84 Stat. 91, 98 (1970).
2S
Exec. Order No. 11,574, 35 Fed. Reg. 19,627 (1970).
26
33 C.F.R. § 209.170 (1998).
'XI/d.
28 FEDERAL WATER POLLUTION CONTROL Acr AMENDMENTS OF 1972, S. REp. No. 92-414
(1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3736.
29
S. 2770, 92nd Cong. §§ 101(c), 502(f) (1971).
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Another amendment, proposed by Senator Allen Ellender on a Committee having
jurisdiction for the USACE, sought to retain sole authority for permitting to the
USACE. 30 USACE involvement was opposed by some legislators because of its
navigation mission. Senator Edmund Muskie, a Democrat from Maine, argued
successfully that the USACE should not have sole authority over the permitting
program because "the mission of [USACE] is to protect navigation. Its mission is
not to protect the environment . . ..'>31 In Conference, the House prevailed in
establishing a separate permit program under § 404, but EPA retained veto power
over dredge and fill disposal permitting ifit determined the activity would "have an
unacceptable adverse effect.'>32 The 1972 Senate Report cites the two major
problems with the permit program, its limited application to "industrial polluters"
and that two federal agencies shared concurrent authority for its implementation.33
Significantly, the 1972 Amendments added a legal definition of"pollutant" to
the statute. 34 The Committee also added a definition of"pollution" for the purpose
offurther refining "the concept ofwater quality measured by the natural chemical,
physical, and biological integrity.,,3s
1. Trouble in River City - Cities and States Continue to Lose Ground
Despite these measures, the states were in trouble. Water quality standards,
considered the "keystone" ofthe waterpollution control law, were not under control.
The 1965 legislation required states to develop water quality standards, and in 1971,
more than four years after the deadline for submission of these standards, only
slightly more than half of the states had complied. Thus, the Committee report
described the process by which the standards would be implemented. The report
stated "[t]he States have first responsibility for enforcement of their standards.
When approved by the Environmental Protection Agency, however, the standards for
interstate navigable waters become Federal-State standards.',36
The trend in water and property was shifting away from the laissez faire policy
of the states toward nationwide compliance with demands for water quality
standards. As the report stated, "[t]he task of setting water quality standards,
30
117 CONGo REc. 38,553 (1972) (statement ofSen. Ellender).
31
117 CONGo REc. 38,855 (1972) (statement ofSen. Muskie).
32
S. CONF. REp. No. 92-1236 (1972), reprinted in 1972 U.S.C.C.A.N. 3776, 3819.
33
S. REP. NO. 92-414, at 76 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3672.
34 Id. at 3742.
35Id.
36
Id. at 3671-72.
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assigned to the States by the 1965 legislation, is lagging.,,37 Congress expressed its
dissatisfaction with enforcement: "...States have first responsibility for enforcement
of their standards. . .. [T]he almost total lack of enforcement, encourage[s]
governing bodies and officials to search for other, more direct avenues of action
against water polluters and water pollution."38 The states did not move quickly
enough, in part because of the money required to construct new waste water
treatment systems. To ease the burden, Congress granted funding for municipal
waste water treatment works in the 1972 Act,39 but continued to move toward federal
enforcement and away from state authority. The result was exactly the opposite of
that foreseen in the 1956 legislation, which was to allow the states more control.
2. Wetlands Jurisdiction Never Shifted to the Clean Water Act in Congress as Claimed
in Retroactive Analysis of Congressional Intent
Further evidence of Congressional intent to address wetlands protection
separately from the Clean Water Act is reflected by activity in the Committee on
Commerce and the legislative history ofthe Wetlands Loan Extension Act of1976,40
an amendment to the Hunting Stamp Tax Act,41 a provision of the Migratory Bird
Conservation Act,42 and a provision of the National Wildlife Refuge System
Administration Act of 1966.43 Congress supported the Hunting Stamp Tax Act,
which provided funds for wetlands acquisition, increased appropriations, and
extended acquisitions for the 1961 Act until 1983. The Committee reported that the
acquisition goals ofthe Department ofInterior increased by 1.3 million acres to 3.8
million and that it endorsed further increases. 44 The Committee cited the prevention
of dredging and polluting as the purpose for the legislation, and the reason for
preservation of wetlands was to "recharge ... ground water supply, floodwater
retention, salt and nutrient entrapment ... and various recreational activities.'>45 It
37
[d. at 3671.
38
[d. at 3672.
39 FEDERAL WATER POLLUTION CONTROL Acr AMENDMENTS of 1972, S. REp. No. 92-414,
reprinted in 1972 U.S.C.C.AN. 3668, 3690.
.4(J WETLANDS LoAN EXTENSIONAcr OF 1976,S. REp. No. 94-594, at 1 (1976), reprinted in 1976
U.S.C.C.AN. 271.
41
16 U.S.C. § 718a (1994).
42
16 U.S.C. § 715a (1994).
43
16 U.S.C. § 668dd (1994).
44 WETLANDS LoAN EXTENSIONAcr OF 1976, S. REp. No. 94-594 at 2 (1976), reprinted in 1976
U.S.C.C.AN 271,272.
4S
[d. at 3, reprinted in 1976 U.S.C.C.A.N. at 274.
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was not necessary to duplicate the purpose and goal in the Clean Water Act. The
Senate Report does not mention the Clean Water Act or any goal or purpose for the
protection of wetlands.
Other Committees were unaware of any wetlands jurisdictional issues; these
Committees were never mentioned. Congressional jurisdiction for the Clean Water
Act fell to the Public Works Committee, but the House Report was from the
Merchant Marine and Fisheries Committee. The Senate Committee having wetlands
jurisdiction for this Act was the Commerce Committee, while the Senate Public
Works Committee had jurisdiction for the Clean Water Act. Wetlands issues could
have been addressed through these Committees; both had been legislating wetlands
laws since 1961. In 1972, the House and Senate Public Works Committees appeared
to have been oblivious to the other Committees' jurisdiction.
The Wetlands Loan Extension Act ofl961 continued to be administered by the
Department of Interior,46 the Clean Water Act was administered by the U.S.
Environmental Protection Agency, and the wetlands provisions rested with the
USACE. However, there was no evidence ofCongressional intent to shift wetlands
issues from the Department ofInterior to the EPA.
3. Congress Never Intended to Create A Permanent Federal Wetlands Permit Program
State control continued to subside in 1977 with the Clean Water Act Amendments, although the "bill intends to develop a better response from the states with
respect to the development ofbettermanagement practices for non-point sources and
de minimus point sources.,,47 Distinctions were made between what would be federal
jurisdiction and what would be "local" jurisdiction.
The Committee bill includes a provision which utilizes existing
legislative mechanisms, and maintains the primary thrust of section
404 with respect to protection of wetlands from spoil and fill
discharges where wetlands protection is an important public need.
At the same time, the bill tries to free from the threat of regulation
those kinds ofmanmade activities which are sufficiently de minimis
as to merit general attention at State and local level and little or no
attention at the nationalleve1.48
The bill provided for the states to continue to have the regulatory role in
wetlands protection. First, in language which set out what states could do, the
Committee reported that "the degree of exemption from the section 404 program
-46
ld. at 1, reprinted in 1976 U.S.C.C.A.N.at 271.
47
S. REp. NO. 95-370, at 11 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4337.
481d. at 10-11, reprinted in 1977 U.S.C.C.A.N. at 4336-37.
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[was] to be determined by the states, as opposed to the courts, as is currently the case
when there is a dispute between the regulator and the potentially regulated."49
Second, the legislation provided that "[b]y the act of assuming the regulatory
program under section 208, the state can define those covered by state best
management practices, the effect of which, if approved by EPA, will be a specific,
precisely defined exemption from section 404.,,50 Boldly, the Committee proclaimed
to have addressed "most real problems with section 404 [wetlands protection]1I
through this legislation with three provisions: "(a) by providing general delegation
ofauthority to the states; (b) by specifying exempt activities; and (c) by bringing the
program under the general procedures of section 402.,,51
The move to provide general delegation ofauthority to the states was discussed
in context with the delegation of authority to the states for implementation of the
National Pollution Discharge Elimination System. In 1977, twenty-eight states had
approved NPDES programs, and the Committee optimistically predicted that these
states "should be able to assume the program [wetlands permit approval program]
quickly."52 But the Committee was not satisfied with the states' performances under
their delegated authority to implement the NPDES program. The Committee Report
stated that:
EPA has been much too hesitant to take any action where States have
approved permit programs. The result might well be the creation of
'pollution havens' in some of those 8tates which have approved
permit programs. . .. Lack of a strong EPA oversight of State
programs is neither fair to industry nor to States that are vigorously
pursuing the act's requirements. The committee is concerned that the
Agency is not conducting a vigorous overview of State programs to
assure uniformity and consistency ofpermit requirements and ofthe
enforcement ofviolations of permit conditions.,,53
With the backdrop ofa satisfactorily progressing permit system delegated to the
states, the delegation of authority for the wetlands permit program was already in
trouble, despite the optimism expressed by the Committee. In fact, by 1995, only
Michigan and New Jersey were authorized to operate § 404 programs, and eighteen
states had their own legislation but had not adopted the federal program.54
Id. at 11, reprinted in 1977 U.S.C.CAN. at 4337.
so Id.
51 Id.
49
52
Id. at 77-78, reprinted in 1977 U.S.C.CAN. at 4402-03.
53
Id. S. REP. No. 95-370, at 73 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4398.
54
Oliver A Houck & Michael Rolland, Federalism in Wetlands Regulation: A Consideration
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In the 1977 Senate Report, the plan for state implementation was clear. "Under
the committee amendment, the corps will continue to administer the section 404
permit program in all navigable waters for a discharge ofdredge or fill material until
the approval ofa State program . ...,,55 There was clearly no intent to create a
permanent federal permitting program for wetlands.
C. "Navigable Waters" Unclear - Congressional Commerce Power
Reaches Wetlands
The power ofCongress to regulate in matters ofcommerce56 on navigable waters
has been firmly established since Gibbons v. Ogden. 57 In that case, Justice Marshall
defined "commerce among the States" as '''commerce' which concerns more states
than one," and includes any activities which "affect the states generally."58 The
debates in the Constitutional Convention also show that navigation was an area to
be regulated by Congress and "was never objected to as an erroneous interpretation
of the [Congressional] power.,,59 Five years later, the power of states was defined
in Willson v. Black Bird Creek Marsh Co. 60 Chief Justice Marshall held there was
a dormant commerce clause, which upheld the right of states to regulate in areas
where the Congress had not spoken. Thus, the Court upheld the state's rightto build
a dam across a navigable creek because ofits importance to flood control and health,
and not on the basis ofits navigability. William Wirt, the state's counsel, argued the
creek was unnavigable, saying it was "one ofthose sluggish, reptile streams, that do
not run but creep, and which, wherever it passes, spreads its venom, and destroys the
health of all those who inhabit its marshes.,,61
In wetlands legislation, the Court has determined thatthe definition ofnavigability extends to wetlands and that wetlands substantially affect interstate commerce.
Since navigation is reached by Congress through the Commerce Clause, using
navigability to include wetlands by definition allows the statute to stand. However,
o/Delegation o/Clean Water Act Section 404 and RelatedPrograms to the States, 54 MD. L. REV.
1242, 1268 (1995).
55 Clean Water Act ofl977, S. REP. NO. 95-217, at 75 (1977), reprinted in 1977 U.S.C.C.A.N.
4326,4400 (emphasis added).
56
U.S. CONST. art. I, § 8, cI. 3.
57
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (involving an interstate, navigable creek).
58
See id. at 69-71.
59 Albert Abel, The Commerce Clause in the Constitutional Convention and in Contemporary
Comment, 25 MINN L. REV. 432, 456 (1941).
60
Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829).
6\
Id. at 249.
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ifthe court defined navigability by its plain meaning, the wetlands law would require
that a commercial use substantially affect interstate commerce in order to survive a
Constitutional challenge.
The recent decision in United States v. Lopez62 holds that Congressional power
exercised pursuant to the Commerce Clause is limited to "commercial" uses that
"substantially affect" interstate commerce. One commentatorremarked that because
the Court in Lopez found that guns were being regulated, rather than the commerce
ofguns, it is reasonable to view environmental regulation as analogous.63 Under the
rational of the Lopez decision, regulation of the environment under the Commerce
Clause fails the standard of "commercial" uses, since the land itself and not the
transaction is being regulated. 64 However, it is unlikely the court would define
navigability under a plain meaning analysis since navigability was defined by the
agency, which will be given deference under the Chevron principles. Finally, the
long history of federal environmental legislation would all but preclude any
challenge to wetlands law on the basis of Lopez.
1. Unnavigable Waters Become ''Navigable Waters" in the Clean Water Act World
"Navigable waters" has long meant what its plain meaning would indicate. The
concept is ancient and dates back to the Roman common law notions of property.
The drafters ofthe Magna Carta reasserted this concept because during that period,
navigation was the key for countries aspiring to world leadership. The public interest
was served through the protection of navigable waterways. In England, the
boundary of navigable waterways was the "mean high-tide line," and the United
States adopted the same definition. 6s The U.S. Rivers and Harbors Act of 1899
adopted the English meaning when it used the term "navigable waters."
As previously discussed, the Federal Water Pollution Control Act of 1972 was
an amendment to the 1965 Act, the 1956 Act, the 1948 Act, and the 1899U.S. Rivers
and Harbors Act. The term navigable waters appeared in each Act, and in 1972
Congress sought to define navigable waters. The Senate Report states: "The control
strategy of the Act extends to navigable waters. The definition of this term means
the navigable waters of the United States, portions thereof, tributaries thereof and
includes the territorial seas and the Great Lakes.,,66 However, the report language
62
514 U.S. 549 (1995).
See Bradley C. Karkkainen, Biodiversity and Land, 83 CORNELL L. REV. 1,77 (1997).
64 Seeid.
63
6S Telephone Interviewwith Ron Outen, formerly with the National Resources Defense Council
(April 1997).
66 FEDERAL WATERPOLLUTIONCONTROLAcr AMENDMENTS OF 1972, S. REP. No. 92-414, at
4 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3742-3.
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goes on to extend the definition without revising it:
Through a narrow interpretation ofthe defmition ofinterstate waters,
the implementation of the 1965 Act was severely limited. Water
moves in hydrologic cycles and it is essential that discharge of
pollutants be controlled at the source. Therefore, reference to the
control requirements must be made to the navigable waters, portions
thereof, and their tributaries. 67
The definition is still unclear and never mentions the word "wetlands."68
The confusion led to litigation, and in United States v. Hollamf'9 and Natural
Resources Defense Council v. Calloway70 the court interpreted the term "navigable
waters" broadly. In Calloway, the court held that for purposes of the Clean Water
Act, navigable waters were not tied to "traditional tests of navigability,,71 and
ordered the USACE to published regulations which recognized "the full regulatory
mandate of the Water Act.,m
After much controversy between the agencies and the regulated community over
the navigable waters issue, and in response to the Calloway court and the Clean
Water Act of 1972, the USACE issued regulations in 1975 under the dredge and
disposal permit program. These regulations expanded the definition of navigable
waters to include tributaries and waters that might affect navigable ones, including
freshwaterwetlands. 73 The Natural Resources Defense Council filed suit against the
USACE for regulations which it believed to be insufficient. The USACE and the
Department of Agriculture issued press releases aimed at farmers and foresters
regarding the impact that the regulations would have on agricultural operations; the
result was a response from Congress. 74 Opposition stirred by the USACE press
releases caused the farming and the forestry communities to be the focus for
differential treatment with respect to wetlands regulation. 75
67
ld.
63
ld.
69
373 F. Supp. 665, 672 (M.D. Fla. 1974).
70
392 F. Supp. 685, 686 (D.D.C. 1975).
ld. at 686.
71
nId.
73
See 40 C.F.R. § 232.2 (1998).
Telephone Interview with Ron Outen, formerly with the Natural Resources Defense Council
(April 1997).
74
75
S. REp. No. 95-370, at 10 (1977), reprinted in 1977 U.S.C.CAN. 4326, 4336.
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Although the Calloway court ordered regulations expanding the definition of
navigable waters, Congress did not include wetlands in the scope ofnavigable waters
and referred to wetlands and navigable waters as separate items in a series. For
example, "there should be a degree of discipline over the extent to which these
activities destroy wetlands or pollute navigable waters.,,76 In another part of the
Report, the Congressional language reads, "It may be that the States will be reluctant
to develop the control measures and management practices which protect upland
wetlands and navigable waters.'>17 From this language it appears Congress did not
intend to include wetlands in the definition ofnavigable waters because the Report
repeatedly refers to wetlands and navigable waters separately rather than under the
single term navigable waters. The 1977 Report specifically states that "The
committee amendment does not redefine navigable waters. Instead, the committee
amendment intends to assure continued protection of all the nations waters ...."78
The Committee stated they would not redefine the term navigable waters until the
controversy between the House and Senate over the extent ofUSACE's jurisdiction
ended. The House rejected amendments which left USACE with the jurisdiction
. provided by the Calloway court. The Senate took a different approach and addressed
the exemptions for farming and forestry. Perhaps the expectation that the states
would assume the program led Congress to consider the issue a temporary
controversy that would be resolved with delegation to the states.
Jurisdiction overwetlands was delegated by Congress to the USACE for "Phase
I" waters, which included traditional navigable waters of the United States and the
adjacent wetlands. 79 However, another controversy arose when the USACE sought
to extend itsjurisdiction to non-adjacent wetlands, or isolated wetlands. Based upon
a Congressional intent analysis, the court in Avoyelles Sportsmen's League v.
Alexander80 held that Congress intended to protect wetlands; therefore, isolated
wetlands were within the reach of § 404 of the Clean Water Act.
Historical interpretation and definition ofthe term "navigable waters" by both
Congress and the Executive Branch is a significant factor leading to the conclusion
that the statute is not appropriate for regulating wetlands, adjacent or isolated, as
long as the term "navigable waters" is used as the basis for Congressional
legislation.
ID. Regulatory Mismatch Continues to Surface in the Executive Branch
76
ld. (emphasis added).
n ld. (emphasis added).
78
S. REp. No. 95-217, at 75 (1977), reprinted in 1977 U.S.C.C.A.N. at 4400.
79
S. REP. NO. 95-370, at 75 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4400••
EO
473 F. Supp. 525, 533 (W.D. La. 1979).
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A. The Making ofRegulation - Problems
1. Commerce Clause, Navigable Waters, and Isolated Wetlands
The issue ofisolated wetlands raised in Avoyelles was addressed in the district
court in Louisiana. The court held thatjurisdiction to regulate isolated wetlands was
within the scope of authority of the agencies. 81 In 1985, the Supreme Court in
United States v. Riverside Bayview Homes, Inc. 82 held that USACE's interpretation
was correct and the agency can regulate isolated wetlands.83
This issue arose again in another form in the Seventh Circuit with a different
result. The isolated wetlands jurisdiction issue was challenged in 1993 inHoffman
Homes, Inc. v. EPA. 84 The court did not find convincing the government's assertion
that migratory birds might stop at this wetland on the way to their destination thus
invoking commerce-based jurisdiction. 85 Therefore, based upon an ultra vires
conclusion the EPA exceeded the jurisdiction delegated to it by Congress, the court
ruled the EPA could not regulate isolated wetlands on the basis of commerce. 86
2. Opponents to the Agency Response Invoke the Administrative Procedure Act
In response to this court decision, the EPA issued what was referred to as the
"migratory bird rule.,,87 This rule responded to the adverse court ruling in the
Hoffman Homes case, which held that EPA did not have jurisdiction over isolated
wetlands. Proceeding under a Chevron 88 theory of deference to agency interpretations, the agency sought to correct what was considered a necessary interpretation
of the existing rules.
The rule was issued without notice and comment in accordance with the
Administrative Procedure Act,89 which requires that proposed regulations must be
8\
ld.
82
474 U.S. 121 (1985).
8J
ld. at 139.
M
999 F.2d 256, 260-62 (7th Cir. 1993).
8S
ld. at 260-262.
86
ld. at 262.
81
Migratory Waterfowl Rules, 7 C.F.R. § 752 (1998).
B3
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 866 (1984).
89
Administrative Procedure Act of 1966, Pub. L. No. 89-554, 553 Stat 483, 526 (1996).
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published in the Federal Register to satisfy notice requirements. Then, an
opportunity for comment must be provided before issuing final regulations.
In 1988, a district court in the Fourth Circuit addressed the rulemaking issue.9o
The United States argued the migratory bird rule was merely an interpretive rule,
appearing in the preamble of the regulation, and therefore exempt from the notice
and comment requirements of rulemaking. 91 In rejecting this argument, the court
held the migratory bird rule was issued in violation of the notice and comment
requirements of the Administrative Procedure Act and held the rule invalid.92
In 1989, the government issued regulations to identify and delineate wetlands. 93
These regulations were controversial and there was intense public opposition. In
response to political pressure, the Bush Administration attempted to revise these
regulations in 1991. Although some commentators believe presidential oversight in
such matters is allowed,94 political pressure resulted in the withdrawal ofthe revised
manual because the proposed regulations reduced the number of wetlands to be
preserved. Commentators raised further opposition based upon the administrative
rulemaking objection, and cited lack of notice and comment. However, other
commentators cited continued opposition which claimed that the agencies continued
to regulate wetlands permitting without a statutory or regulatory basis. 9s
In 1995, in Leslie Salt Co. v. United States 96 the plaintiffchallenged the notice
and comment issue when the owner ofa commercial enterprise was denied a permit
to drain ponds because ofthe migratory bird rule. The permit was denied because as
a result ofthe company's use ofthe company used holding ponds to collect calcium
chloride, the ponds had attracted migratory birds, and could therefore not be
drained. 97 The court bypassed the issue ofthe failure to provide notice and comment
for the migratory bird rule and held it was "not a substantive addition to its [the
agency's] reach,,98 to include wetlands created by humans; legislative history
indicated a Congressional intent "to extend Act jurisdiction over waters of the
91
See Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726 (B.D. Va. 1988).
Seeid.
92
Id. at 729.
93
Federal ManualjOr Identifying and DelineatingJurisdictional Wetlands 1989.
90
94 Thomas o. Sargentich, Normative Tensions in the Theory ofPresidential Oversight ofAgency
Rulemaking, 7 ADMIN. L.J. AM. U. 325 (1993).
95 Robert A. Anthony, "Well, You Want the Permit, Don't You?" Agency Efforts to Make
Nonlegislative Documents Bind the Public, 44 ADMIN. L. REv. 31 (1992).
96
55 F.3d 1388 (9th Cir. 1995).
97
See id. at 1372.
98
Id. at 1394.
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United States to the maximum extent possible under the Commerce Clause.,,99
Although the agencies have succeeded in surviving challenges to their
rulemaking process, the repeated challenges to this authority suggest a potential
weakness in the legal foundations ofthe rulemaking authority under the Clean Water
Act.
In 1995, the National Association ofHomebuilders filed an action opposing the
issuance of new regulations which further expanded the list of regulated activities
under § 404. They argued not on the basis of notice and comment, but on the basis
that the agency exceeded its scope of authority delegated to it by Congress. 100 The
challenges have continued, and there is no indication that these issues are concluded.
Challenges ofpermit denials through judicial review under the Administrative
Procedure Act have also resulted in a finding of broad discretion to the agency
denying the permit. In Loveladies Harbor Inc. v. Baldwin,lol an administrative
hearing, the court rejected claims that the agency acted in an arbitrary and capricious
manner, with abuse of discretion, not in accordance with law, and in excess of the
agency's authority. Ultimately, the Federal Circuit Court of Appeals found a Fifth
Amendment taking in Loveladies,102 but the administrative law issues were not
considered by the appeals court.
Although challenges based on the Administrative Procedure Act may be valid,
there has been a lack ofsuccess on the part ofchallengers with the issues concerning
wetlands permitting the promulgation ofregulations. The threat ofan administrative
law challenge to the publication of the 1991 wetlands delineation regulations was
enough to prevent its finality. Moreover, the issue was never resolved through
judicial review. Therefore, it is unlikely that this area will result in any significant
judicial decisions.
3. Regulatory Challenge to the Tulloch Rule Drains the Chevron Protection to the
Agencies' Interpretation of the Clean Water Act
A significant surprise came with the decision ofthe United States District Court
of the District of Columbia in American Mining Congress v. United States Army
99
Id. at 1394-95 (citations omitted).
Clean Water Amendments of 1995: Hearings on H.R. 961 Before the Subcomm. on
Reauthorization ofthe Clean WaterActofthe Comm. on Transp. andInfrastructure Water Resources
and Env't," 104th Congo (March 1995) (statement of the National Association of Homebuilders),
available in 1995 WL 10383796.
100
101
20 E.R.C. (BNA) 1897 (March 12, 1984).
102
Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994).
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Corps ofEngineers, 103 which challenged the Tulloch rule 104 and determined that the
rule is invald. The Tulloch rule was the result ofNorth Carolina Wildlife Federation
v. Tulloch, lOS where environmental organizations alleged that certain excavation
activities were harming the environment and were therefore subject to § 404
permitting requirements. 106 The plaintiff excavated the wetlands with machinery
specifically designed to prevent the fallback of dredged material into the wetland,
precluding any deposition ofa pollutant. The parties settled the case when the EPA
and the USACE agreed to regulate the addition or redeposit ofdredged materials into
wetlands. 107 The agencies found that dredging per se would result in some fallback,
regardless of the sophistication of the machinery used to perform the dredging,108
thereby bringing all excavation under the jurisdiction of the EPA and the USACE.
Judge Stanley Harris held the Tulloch rule invalid, but on a motion to alter or
amendjudgment, Judge Harris granted the motion for injunctive reliefand extended
it nationwide.109 The Court ofAppeals affirmance ofthe invalidation ofthe Tulloch
rule, largely eviscerated the dredging permit program and rendered the Clean Water
Act's goal ofwetlands protection ineffective. no The National Mining court held that
"[t]he district court was well within its discretion in finding that the complaint
placed the agencies on notice that appellees sought both declaratory and injunctive
relief." In upholding the District Court's injunction, the court further found that
"[a]lthough the court made no express findings as to the elements necessary for a
permanent injunction, ... we do not think it was required to do so."lII
The Court ofAppeals decision confirmed some commentators' arguments that
the Chevron doctrine would be invoked on a first level determination of "plain
meaning" which would prevent the subsequent second level Chevron analysis. 1l2
103
951 F. Supp. 267 (D.D.C. 1997).
1M
58 Fed. Reg. 45008, 45009-13 (1993).
lOS
Civil No. C90-713-CIV-5-BO (E.D.N.C. 1992).
See American Mining Congress, 951 F. Supp. at 269.
107 See id.
106
lOS
See id.
See American Mining Congress v. United States Anny Corps ofEngineers, 962 F. Supp. 2
(D.D.C. 1997) affd, National Mining Assoc. v. Anny Corps ofEngineers, 145 F.3d 1399 (D.C. Cir.
1998).
109
110
National Mining Assoc. v. Army Corps ofEngineers, 145 F.3d 1399 (D.C. Cir. 1998).
III
[d. at 1408.
lIZ BmdfordC. Mank, AmericanMining Congress v. Army Corps ofEngineers: Ignoring Chevron
and the Clean Water Act's Broad Purposes, 25 N. Ky. L. Rev. 51, 70 (1997).
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IV. Fifth Amendment Takings
Wetlands regulation has been perceived as regulatory takings in contravention
of the Fifth Amendment provision against seizing private property without
compensation. ll3 This conflict between the Fifth Amendment and the wetlands
regulation is an example of the foundational problems that will ultimately destroy
the Clean Water Act's effectiveness in protecting wetlands.
The first Supreme Court case to address this issue was Lucas v. South Carolina
Coastal Council. 114 The Court in Lucas found that environmental regulation had
effected a compensable taking that essentially took all value away from the property.
However, the Lucas decision only applies to a narrow set of circumstances where
government regulation has essentially stripped all value from a property. Still,
Lucas provided the framework for regulatory takings jurisprudence which opened
the door to future wetlands cases decided by the U.S. Circuit Court of Appeals in
1994.
The landmark case ofFlorida RockIndus.Jnc. v. United States, lIS followed the
Lucas decision. In Florida, the court denied a § 404 permit for private property
which resulted in the court's finding ofa partial taking. Through the application of
the Takings Clause, the court limited governmental action by requiring compensation
for not only full takings, as in Lucas, but also for a partial diminution of value
resulting in a partial taking. The Supreme Court's denial ofcertiorari allowed partial
takings for wetlands preservation to stand under the Clean Water Act.
Decided later that same year, Loveladies Harbor, Inc. v. United States 116 further
sharpened the test for partial takings under the issue ofpermit denial. InLoveladies,
private property owners challenged § 404 permit denials as a violation of due
process under the Fifth Amendment of the U.S. Constitution. In the related case of
Loveladies Harbor, Inc. v. Baldwin, the District Court ofthe United States rejected
arguments that the administrative process satisfied due process. 117 Although the due
process prong ofa takings analysis cannot, by itself, result in a finding ofcompensable taking, it is still important. The remedies for a denial ofdue process are damages
and invalidation ofthe regulation; whereas, the remedy for a violation ofthe Takings
Clause is compensation. liB Previous due process challenges have unsuccessfully
113
See u.s. CONST. amend. V.
114
505 U.S. 1003 (1992).
lIS
18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 115 S. Ct 898 (1995).
116
28 F.3d 1171 (Fed. Cir. 1994).
117
20 Env't Rep. (BNA) 1897, (1984).
liB
See, e.g., John D. Echeveria & Sharon Dennis, The Taldngs Issue andtheDueProcess Clause:
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resulted in the court's refusal to find a denial ofa wetlands permit unconstitutional
unless there is a finding ofa compensable taking. The Court ofAppeals applied this
reasoning in Florida RockIndus., Inc. v. United States 119 and found that the Supreme
Court has made it clear that compensation for loss, not invalidation ofan offending
regulation, is the remedy for violation of the Takings Clause. 120
The "character ofthe government action," a test which has been applied to the
wetlands permit denial process, was suggested in the landmark case Pennsylvania
Coal v. Mahon. 121 The Pennsylvania Coal decision made the "government action"
prong the basis of all takings analyses, with the standard that a taking had been
effected when government action "goes too far.,,122 The test was first articulated in
Penn Central Transportation v. City ofNew YorlC 23 as the "substantially advances
legitimate state interests" test, which was presented two years later in Agins v.
Tiburon. 124 The existence of these tests led to the statement by the EPA in a
memorandum from the General Counsel to the Administrator that the denial of a §
404 wetlands permit "is a legitimate state interest, which Congress bas recognized
S0 me
under § 404, and which the permit denial substantially advanced."12S
commentators have suggested that the takings jurisprudence has not made any
practical impact on the preservation ofwetlands. One commentator found that "in
the vast majority of cases, takings claims are rejected and only three judicial
decisions have found that federal wetlands requirements have taken private
property."126 Further, in 1995, "there were over 62,000 § 404 permit applications,
yet only 274 (or 5%) of the permits were denied."127 Another commentator found
"surprising few reported decisions even mentioning the prominent U.S. Supreme
A Way Out ofa Doctrinal Conftsion, 17 VT. L. REv. 695 (1993).
119
18 F.3d 1560, cert denied, 513 U.S. 1109 (1995).
120 ld. (citing First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304,
(1987»; see also, James L. Huffinan, Judge Plager's - "Sea Change" in Regulatory Takings Law,
6 FORDHAM ENVTL. LJ. 597, n. 109 (1995).
121
260 U.S. 393 (1922).
122
ld. at 415.
123
Penn Cent Transp. Co. v. City ofNew York, 438 U.S. 104 (1978).
124
Agins v. City ofTiburon, 447 U.S. 255, 260 (1980).
125 Memorandum from E. Donald Elliott, Assistant Administrator, General Counsel to William
Reilly, Administrator, (November23, 1990) (discussing takings issues raisedby Congressional letters
regarding wetlands cases), available in 1990 WL 357109 (E.P.A.A.G.C.).
126 Glenn P. Sugameli, Why Laws to Protect Wetlands Are Unlikely to Cause Fifth Amendment
Takings ofProperty, 3 (October 1996) (unpublished manuscript, on file with the National Wildlife
Federation, October 1996).
127 ld.
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Court holding in the three cases,,128 He concluded that regulatory takings did not
have the expected impact on private property takings. 129 David Lucas, the plaintiff
in Lucas, founded an organization to promote the passage of state legislation in
South Carolina and Florida. In his opinion, states will ignore the Supreme Court
ruling on his case without corresponding state property rights legislation.130
In a survey sponsored by the National Wildlife Federation, 1,201 respondents
were asked whether property owners should be compensated for takings resulting
from environmental regulations. The survey results showed that only 34% of the
respondents thought that property owners should be compensated.131
Although the impact has not been as great as initially expected after the
Supreme Court decisions, the additional threat to the Clean Water Act adds yet
another factor to the weaknesses ofthe Act and its effectiveness in the preservation
of wetlands.
v.
Science and the Law of Wetlands - A Dilemma
The goal of developing a scientific definition for wetlands has been seen as a
solution to the wetlands problems. Both Congress and the Executive Branch, believe
that the controversy over regulations for delineation of wetlands can be resolved
once a unified, scientific definition is developed. 132
The difficulty with creating a scientific definition for the basis of a regulation
in this area is that the political and economic demands cannot match the scientific
scope. The result is a social construct that is a blend of both science and law. As
stated by one commentator, "[w]etlands must be delineated because federal law
distinguishes them from non-wetland or dry land. This is a scientific dilemma for
those who see the landscape as a continuous interactive system, because the term is
a social construct not a scientific one. Nonetheless, we cannot escape applying
128 Ronald Rosenberg, The Non-Impact ofthe United States Supreme Court Regulatory Takings
Cases on the State Courts: Does the Supreme Court Really Matter? 6 FORDHAM ENVTL. L.J. 523
(1997); see Dolan v. City ofTigard, 512 U.S. 374 (1994); Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992); NoIlan v. California Coastal Comm'n, 483 U.S. 825 (1987).
129 Id.
130 DAVID LUCAS, SOUTH CAROLINA POLICY COUNCIL CAPITAL COMMENT No. 46, IT COULD
HAPPEN To You (Sept 1994).
131 Peter D. Hart Research Associates, A Post Election Voter Survey, National Wildlife
Federation, Question number 13 (1994).
132 A. Dan Tarlock, Symposium: Twenty-Five Years of Environmental Regulation, The
Nonequilibrium Paradigm in Ecology and the Partial Unraveling ofEnvironmental Law, 27 LOY.
L.A. L. REV. 1121, 1132 (1994).
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science to wetlands delineation."133 The United States District Court stated that
"[t]he term wetlands is not a term ofpure science; it is a term that Congress defined
and expected to be interpreted to satisfy a practical, social and political need. ,,134
Wetlands ·transcend political jurisdictions, and a scientific solution does not
recognize the political boundaries. Nevertheless, some scientific basis for the
delineation ofwetlands is necessary in order to identify the object ofthe regulation.
In 1975, an ecological definition was used to define a statutory requirement in
modem environmental water legislation. Previously, engineering definitions had
been used for water and navigational regulatory activities. 13s The use of an
ecological definition for § 404 permitting was a new approach and one which has
continued to be a source of conflict. To try to resolve definitional discrepancies in
wetlands science, the National Academy of Sciences took on the task of defining
wetlands.
In 1993, the EPA and the USACE announced they were contracting with the
National Academy of Sciences "to prepare a scientific analysis of wetlands
delineation, including an evaluation of the scientific validity and practicability of
existing wetland delineation manuals,"136 for which $400,000 had been appropriated.
The National Research Council (NRC), the operational arm of the National
Academies, formed the Committee on Characterization ofWetlands (Committee) for
this task.
Afterthe Committee reviewed the Wetlands Delineation Manual 137 for scientific
validity, it developed a reference definition for wetlands. The Committee's
definition referred to "minimum essential characteristics ofa wetland" and included
"common diagnostic features."138 The minimum essential characteristics of a
wetland are "recurrent, sustained inundation or saturation at or near the surface and
the presence of physical, chemical and biological features reflective of recurrent,
sustained, inundation or saturation."139 The common diagnostic features were set out
133
ld. at 1132.
134
United States v. City ofFort Pierre, 580 F. Supp. 1036, 1038 (D. S.D. 1983), rev'd on other
grounds, 747 F.2d 464 (8th Cir. 1984).
I3S Telephone interview with Ron Outen, fonnerly with the Natural Resources Defense Council
(April 1996).
136 Memorandum ofAgreement Concerning the Detennination ofthe Geographic Jurisdiction of
the Section 404 Program, 58 Fed. Reg. 4995 (1993).
137 TheWetlands DelineationManual is the EPA's guidance for identifying wetlands for purposes
of § 404 permitting.
138
139
National Research Council, WETLANDs: CHARACTERISTICS AND BOUNDARIES, 59 (1995).
ld.
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as "hydric soils andhydrophytic vegetation."I40 The definition is broad and does not
represent the red-line approach to regulation that many were seeking, or that might
be found in an engineering definition. The Committee also agreed that the definition
encompassed a broader universe of wetlands than was includc;ld in regulatory
delineations.141 The Committee encountered many difficulties in attempting to
provide scientific information within a legal framework. The conflict between
scientific and technical aspects of identification and boundary determination of
wetland boundaries are confused with the federal jurisdiction over wetlands.,,142
The Committee focused on a scientific, rather than a legal basis for identifying
wetlands. Although mindful that their conclusions might not fit the legal framework,
the Committee proceeded to categorize threatened ecosystems. The Committee
identified riparian zones as major areas in need of protection. Riparian zones are
areas adjacent to streams and rivers that include some wetlands, but are integral to
watershed management. From a scientific standpoint, riparian zones do not fall
under and should not be retrofitted into a wetlands definition. The Committee urged
separate legislation to address these areas. 143 Not all wetlands that meet the
scientific definition, such as riparian zones, are regulated as wetlands.
Unlike riparian zones, permafrost meets the scientific definition of wetlands,
but is not regulated. Although the NAS Committee agrees that permafrost meets the
definition, the Food Security Act specifically excludes these wetlands. Since
permafrost wetlands are found predominately in Alaska, the economic consequences
ofregulating this significant land mass prevented their inclusion in § 404 wetlands.
However, from a scientific basis, these wetlands should be protected by § 404. 144
The NAS Committee also found that isolated wetlands were no less important
than adjacent wetlands. 14s Similarly, agricultural and forestry wetlands are no
different than other wetlands based on a purely scientific definition, and there is no
justification for their differential treatment. l46 The Nationwide Permit 26 system
allows isolated wetlands to be filled in amounts up to one acre without review, and
ten acres with minimal review unless overridden by the USACE district engineer or
state regulations. 147 This gap in the permitting system could result in cumulative
wetland losses. The NRC advocates that "[t]he rationale for extensive use of
140
[d. at 59.
141
[d. at 12.
142
[d. at 15.
143
[d. at 8-9.
144
See National Research Council, supra note 138, at 8.
145
[d. at 9.
146
[d.
141
[d.
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Nationwide Permit 26 for isolated and headwater wetlands should be reviewed.,,148
The Council's proposed review may have merit since the system allegedly "is the
cause of more litigation than any other nationwide permit.,,149
Mitigation of wetlands is a controversial part of the wetlands permitting
program that allows developers to mitigate the lost wetlands through buying other
wetlands or creating them. From a scientific perspective, wetlands mitigation has
been controversial. Critics argue that creation ofwetlands has unproven ecological
benefits, is scientifically unsound and cannot replace a complex, thriving
ecosystem. ISO From a regulatory perspective, those required to mitigate complain
they are required to do far more than what is required for the adverse impact oftheir
project; while those opposed to mitigation complain that it is scientifically unsound
and not extensive enough. lSI Despite these criticisms, the NRC recommended an
increase in mitigation banking and restoration activities. ls2
Both the Clinton and Bush Administrations endorsed the mitigation banking
approach to restoring wetlands lost by development. ls3 The concept of mitigation
banking demonstrates a solution to the regulatory mismatch exemplified in Justice
Breyer's framework. According to Justice Breyer, a regulation coupled with an
economic incentive is one of the best reform approaches, especially when a
regulation is "undertaken for reasons of 'economic fairness'" or to avoid certain
adverse social effects. ls4
The NAS Committee also concluded that the Delineation Manual was
scientifically valid "in most respects," but cautioned that it could be "more efficient,
more uniform, more credible with regulated entities and more accurate in a technical
or scientific sense through constructive reforms of the type suggested in this
report."ISS
As demonstrated by this scientific work, the effort to regulate wetlands based
on a scientific perspective requires the use ofbroad categories ofexceptions, a legal
and a scientific definition of wetlands. Therefore, to justify wetlands regulation
solely on the basis of science is unsound.
148
Id.
149Id.
William W. Sapp, Mitigation Banking: Panacea orPoisonfor Wetlands Protection, 1ENVTL.
99, 118 (1994).
lSI See id. at 117.
150
LAW.
IS2
NATIONAL REsEARCH COUNCIL, supra note
135, at 12.
m Michael C. Blumm, The Clinton Wetlands Plan: No Net Gain in Wetlands Protection, 9
203,226-27 (1994).
J.LANO USE & ENVTL. L.
1S4
JUSTICE STEPHEN BREYER, REGULATION ANO ITS REFORM 22-23
ISS
National Research Council, supra note 138, at 12.
(1982).
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VI. Recommendations
The need to preserve wetlands and the goal of "no net loss" of wetlands is a
matter ofnational interest. However, the basis on which the regulation is created is
the first step in the solution to a regulatory mismatch problem. The basis on which
wetlands legislation is grounded in the Constitution is confusing for many, even
those involved in the field. One of the best examples can be found in the opening
sentence of a published law review article: "Because of the ecological importance
of wetlands, they are subject to regulation under federal environmental law." 156
Unfortunately, "ecological importance" is not a constitutional basis for Congress to
pass wetlands legislation, but it would be a more accurate basis for wetlands
legislation than the basis ofcommerce or "navigable waters." Some commentators
have strongly supported the theory ofcommon law nuisance as a basis for wetlands
regulation, thereby foreclosing takings claims. ls7
Yet another commentator wrote, "One obvious change that needs to be made is
for Congress to state clearly in the law that one ofthe goals ofthe Clean Water Act
is to preserve wetlands for their own sake as well as to mitigate non-point sources
of water pollution." Although the inherent value of wetlands is a more accurate
basis than a grounding in commerce or "navigable waters," it likely will not survive
judicial scrutiny. Some have suggested that causing species extinction is a moral
crime and society should regulate against it. ls8 A federal criminal statute is a
theoretical possibility, but it is probably a very impractical one.
A. A State Solution
A return to the legislative intent of the Clean Water Act in the context of
moving wetlands protection programs to states through delegation, exactly like the
NPDES permitting system delegation ofauthority, is the solution that will cure many
ofthe regulatory mismatch problems concerning private property rights, administrative law problems, and constitutionality problems which have haunted the wetlands
provisions of the Act since 1972. Authority exists in the Clean Water Act which
permits agencies to pursue this solution without further authorizing legislation.
Unfortunately, some have abandoned the provision for state delegation, and
156 Emily Hartshorne Goodman, Defining Wetlands for Regulatory Purposes: A Case Study in
the Role ofScience in Policymaking, 2 BUFF. ENVTL. L. J. 135, 136 (1994).
1S7 See Mark Sagoff, Muddle orMuddle Through? Takings Jurisprudence Meets theEndangered
Species Act, 38 WM. & MARy L. REv. 825, 885 (1997).
ISS Id. at 902.
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along with it, the intent ofCongress to transfer this program to the states. Others are
attempting to breathe new life into the environmental federalism movement which
promotes national and even international centralization ofenvironmental problems
as the superior solution. to local land control. 159
B. A Federal Solution
The basis for wetlands regulation is critical to solving the regulatory mismatch
problem, and social welfare is one such basis which bears consideration as it may
apply to wetlands regulation. The uncertain existence ofa federal police power, in
addition to the power reserved to the states, may allow the federal government to
legislate on the basis of social welfare objectives. Although the Constitutional
Convention rejected four resolutions seeking to confer the power on Congress to
"enact legislation for the national morals, health, safety, and well_bcing,"160 there is
some question as to whether the federal government police power can enact
legislation to prevent action which might jeopardize public welfare. In discussing
the federal police power, one commentator wrote that the police power:
Aims directly to secure and promote the public welfare by subjecting
to restraint or compulsion the members of the community. It is the
power by which the government abridges the freedom ofaction or the
free use ofproperty ofthe individual in order that the welfare ofthe
state or nation may not be jeopardized. 161
The use of federal police power has not been in vogue since the late 1800's.
The reality of the need for environmental regulation, the need to find a genuine
Constitutional grounding for the protection of wetlands, the continuing problems
with the Constitutional basis of wetlands regulation, and the conflicts with state
property laws suggest that the use offederal police power may be a viable approach
as a basis for federal wetlands regulation.
c.
Proposals for Wetlands Law Reform
The previous recommendations are significantly different from legislative
proposals made over the last several years. One of the first bills attempted to
provide a compensable remedy, but did not adequately address the many other
IS9
See e.g. Daniel C. Esty,RevitalizingEnvironmentalFederalism, 95 MICH. L. REv. 570 (1996).
160
JEROMEA.BARRONETAL.,CONSTITUTIONALLAW:PRlNCIPLESANDPOLICY94(5thed.1996).
Robert Cushman, TheNationalPolicePower Underthe Commerce Clauseo/the Constitution,
3 MINN. L. REv. 289, 290 (1919).
161
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complex problems. 162 This bill sought to provide classifications in wetlands
delineation and optional compensation for certain classes. The legislation gained the
support of one hundred House Members, but, because it was too narrow in
addressing the many other facets ofwetlands protection, it did not advance further.
Using an economic incentive approach, another bill sought to encourage the
preservation and creation of wetlands through tax incentives, coordination of
implementation through the Department ofTreasury, and through a revision in the
Internal Revenue Code. This legislation did not succeed. 163 Another proposal
attempted to solve the wetlands problem with a scientific approach. This proposal
suggested a review of the Federal Delineation Manual and a study by the National
Academy ofScience providing a scientific definition for wetlands and an assessment
ofthe viability ofhuman-created wetlands. 164 Another proposal sought to reform the
wetlands program through implementation reform. This failed bill, known as the
Wetlands Simplification Act, provided for only one agency to implement the
wetlands permitting program on agricultural property - the Soil Conservation
Service. 165 Another bill addressed the personnel training issue to reform the
wetlands program and to provide training funds. The funding would have been for
public education on identification and protection of wetlands as well as the legal
obligations flowing from wetlands identification. 166
During the 104th Congress, the legislature introduced more bills targeting
reform of wetlands law, with varying objectives for reform. The Clean Water Act
Amendments of 1995 167 were intended to re-authorize the Clean Water Act and
amend the § 404 permitting process. The Natural Resources Defense Council
opposed the wetlands provisions of the bill, citing no need for radical changes. At
that time, the Natural Resources Defense Council opposed the wetlands provisions
of the bill, citing no need for radical changes. The Council identified three areas of
concern: (1) the National Academy of Sciences' completion of an extensive study
of the definition of wetlands; (2) the elimination of confusion and inconsistencies
by the return to the use of the Delineation Manual of 1987; and (3) the proposition
revising the EPA regulations to clarify the applicability of § 404 to isolated waters
and artificial wetlands. 168 The National Wildlife Federation also opposed the bill,
162 H.R
1330, 102nd Congo (1991).
163
H.R 251, 102nd Congo (1991).
164
H.R 3578, 102nd Congo (1991).
165
S. 2018, 102nd Congo (1991).
I66H.R 3492, 102nd Congo (1991).
167
H.R 961, 104th Congo (1995).
168 Clean Water Act Amendments of 1995: Hearings on H. R. 961 Before the Subcomm. On
Tramp. and Infrastructure Water Resources and Env't, l04th Congo (MarchI995) (testimony of
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claiming that the "unscientific" definition of wetlands would exclude half of
America's wetlands from protection and attacking the compensation provisions of
the new bill as. a "new entitlement program" for those who held the highest
classification wetlands. 169 Adding its criticism, the National Association of Home
Builders observed that the National Academy ofSciences report would "only restate
what is known and . . . will reiterate the need for Congress to decide the issue
[defining wetlands].,,17o In spite ofthis opposition, the bill passed the House,171 but
languished and failed to pass in the Senate.
The Senate introduced The Wetlands Regulatory Reform Act ofl995, 172 which
provided for a system of classification of wetlands. Delineation would identify
wetlands as having "low," "medium," or "high" value and protection would be
afforded accordingly. Wetlands in the high category would require just compensation be paid to the property owner. Many groups opposed this ranking system,
including about fifty sport and commercial fishery groups which sent a letter
opposing the bill to each ofthe U.S. Senators. Instead, the group sought reconsideration of another Senate bill providing for funds to assist small landowners with
identifying wetlands on their property, an administrative appeals process and
expedited permit decision deadlines.
Many of these proposals were creative policy responses to specific problems
with the section 404 permitting program. However, this piecemeal approach only
provides band-aid solutions where a cure is needed. Wetlands protection is an area
with widespread public support and is worthy ofprotection on a scientific, aesthetic,
and moral basis. There are two approaches that are viable alternatives: (1) activate
the dormant provision in the Clean Water Act that allows the delegation of
permitting authority to the states or (2) create a new federal statute which correctly
matches the protection of wetlands with the foundation on which the regulation is
created and incorporates the economic incentives provisions which have policy and
scientific support.
Jessica C. Landman, Senior Attorney, Natural Resources Defense Council), available in 1995 WL
10382220.
169 Clean Water Act Reauthorization: Wetlands and property Rights, 1995: Hearings on H. R.
961 Before the Subcomm. On Transp. and Infrastructure Water Resources and Env't, 104th Congo
(March 1995) (testimony ofJan Goldman-Carter, Counsel, Fish and Wildlife Resources Division,
National Wildlife Federation), available in 1995 WL 10383886.
170 Statement ofthe NationalAssociation ofHome Builders, Testimony on Reauthorization ofthe
Clean Water ActBefore the Clean Air, Wetlands, Private Property andNuclear Safety Subcomm. of
the Senate Comm. On Environment andPublic Works, 104th Congo (Aug. 1995) (statement ofMark
Tipton, president, National Association ofHome Builders), available in 1995 WL 10382429.
171 Passed the House May 16, 1995.
172
S. 851, 104th Congo (1995).
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VB. Conclusion
In testimony before Congress in 1985, Robert K. Dawson, the Acting Assistant
Secretary of the Army for Civil Works, stated the position of the USACE:
"Congress did not design § 404 to be a wetlands protection mechanism and it does
not function well in that capacity."173 Another commentator has written that
"[p]rotection for wetlands has entered the Clean Water Act through the back door by
court interpretation and agency implementation to control non-point source
pollution."174 Repeating the conclusion ofJudge Stanley Harris in American Mining
Congress: "The appropriate remedy for what the agencies now perceive to be an
imperfect statute, however, is Congressional action; defendants' authority is limited
to adopting regulations that effectthe will ofCongress as expressed in the statute."175
The conclusions of these commentators and recent judicial opinions signal serious
problems with the Clean Water Act as a statute to achieve the goal of wetlands
protection. Continuing legal problems with the § 404 permitting program and the
decisive holding in American Mining Congress invalidating the most effective
regulation to prevent the destruction of wetlands suggests that lawmakers should
revisit wetlands protection.
Policy makers should consider a state-by-state approach and the delegation of
authority to the states for the wetlands permitting program. In considering a federal
approach, the creation ofa federal statute for wetlands protection based upon a solid
constitutional basis, and not on commerce as ajustification for the regulation, should
be seriously considered. Moreover, the need to include economic incentives, such
as mitigation banking, is necessary to assure the regulatory match of the problem
with the regulation.
I7J Blwnm, supra note 153; see Clean WaterAct § 404: OversightHearingsBefore the Subcomm.
on Envtl. Pollution of the Senate Comm. On Env't and Public Works, 99th Congo (May 1985)
(Testimony ofRobert K. Dawson, Acting Assistant Secretary ofthe Army for Civil Works,) (stating
Corps view that "Congress did not design § 404 to be a wetlands protection mechanism and it does
not function well in that capacity."), reported in Senate Subcomm. Holds Clean Water Act § 404
Oversight Hearings, NAT'L WETLANDS NEWSL., July/Aug. 1985, at 8-9.
174 Lettie McSpadden Wenner, Wetlands Preservation in the United States:
Fragmented Authority, 13 N.ILL. U. L. REv. 589, 607 (1993).
I7S
A Case of
951 F. Supp. at 301 (D.D.C. 1997).
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