US SUPREME COURT DECISIONS

The Clean Water Act prohibits any discharge of dredged or fill materials into "navigable waters" -- defined as the "waters of the United States" -- unless authorized by a permit issued by the Army Corps of Engineers (Corps). Construing the Act to cover all "freshwater wetlands" that are adjacent to other covered waters, the Corps issued a regulation defining such wetlands as

"those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."

After respondent Riverside Bayview Homes, Inc. (hereafter respondent), began placing fill materials on its property near the shores of Lake St. Clair, Michigan, the Corps filed suit in Federal District Court to enjoin respondent from filling its property without the Corps' permission. Finding that respondent's property was characterized by the presence of vegetation requiring saturated soil conditions for growth, that the source of such soil conditions was ground water, and that the wetland on the property was adjacent to a body of navigable water, the District Court held that the property was wetland subject to the Corps' permit authority. The Court of Appeals reversed, construing the Corps' regulation to exclude from the category of adjacent wetlands -- and hence from that of "waters of the United States" -- wetlands that are not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court took the view that the Corps' authority under the Act and its implementing regulations must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment. Under this construction, it was held that respondent's property was not within the Corps' jurisdiction, because its semi-aquatic characteristics were not the result of frequent flooding by the nearby navigable waters, and that therefore respondent was free to fill the property without obtaining a permit.

Held:

1. The Court of Appeals erred in concluding that a narrow reading of the Corps' regulatory jurisdiction over wetlands was necessary to avoid a taking problem. Neither the imposition of the permit requirement chanrobles.com-red

Page 474 U. S. 122

itself nor the denial of a permit necessarily constitutes a taking. And the Tucker Act is available to provide compensation for takings that may result from the Corps' exercise of jurisdiction over wetlands. Pp. 474 U. S. 126-129.

2. The District Court's findings are not clearly erroneous, and plainly bring respondent's property within the category of wetlands, and thus of the "waters of the United States" as defined by the regulation in ques tion. Pp. 474 U. S. 129-131.

3. The language, policies, and history of the Clean Water Act compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of material into wetlands adjacent to other "waters of the United States." Pp. 474 U. S. 131-139.

729 F.2d 391 reversed.

WHITE, J., delivered the opinion for a unanimous Court. chanrobles.com-red

Page 474 U. S. 123