U.S. Supreme Court EPA v. Nat'l Crushed Stone Assn., 449 U.S.
64 (1980) Environmental Protection Agency
v. National Crushed Stone
Association No. 79-770 Argued October 7,
1980 Decided December 2, 1980 449 U.S.
64 ast|>* 449 U.S.
64 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH
CIRCUIT Syllabus Under § 301(b) of the Federal Water Pollution Control Act, the
Environmental Protection Agency (EPA) is to set 1977 effluent
limitations for categories of point sources, requiring such sources
to meet standards based on application of the "best practicable
control technology currently available" (BPT), and 1987
limitations, requiring all point sources to meet standards based on
application of the "best available technology economically
achievable" (BAT). Section 301(c) of the Act provides for variances
from 1987 BAT effluent limitations for individual point sources
upon a showing "that such modified requirements (1) will represent
the maximum use of technology within the economic capability of the
owner or operators; and (2) will result in reasonable further
progress toward the elimination of the discharge of pollutants."
However, the Act contains no similar variance provision authorizing
consideration of the economic ability of the individual operator to
meet the cost of complying with 1977 BPT standards. In 1977, the
EPA promulgated BPT pollution discharge limitations for the coal
mining industry and for certain portions of the mineral mining and
processing industry. Under the regulations, a greater than normal
cost of implementation will be considered in acting on a request
for a variance, but a variance will not be granted on the basis of
the applicant's economic inability to meet the cost of implementing
the uniform standard. Respondents sought review of the regulations
in various Courts of Appeals, challenging both the substantive
standards and the variance clause. All of the petitions were
transferred to the Court of Appeals for the Fourth Circuit, which
set aside the variance provision as unduly restrictive and required
the EPA to consider, inter alia, the factors set out in §
301(c), including the applicant's economic capability.

															Held: The Court of Appeals erred in not accepting the EPA's
interpretation of the Act. The EPA is not required by the Act to
consider economic Page 449 U. S. 65 capability in granting variances from its uniform BPT standards.
Pp. 449 U. S.
73 -85.

															(a) The statute's plain language does not support the Court of
Appeals' position. Section 301(c)'s requirement for a BAT variance
of "reasonable further progress" toward the elimination of
pollutant discharges refers to the prior BPT standard, but there is
no comparable prior standard with respect to BPT limitations. And
since BPT limitations do not require an industrial category to
commit the maximum resources economically possible to pollution
control, even if affordable, the § 301(c) BAT variance factor as to
the maximum use of technology within the applicant's economic
capability is inapposite in the BPT context. More importantly,
under the Act, the Administrator of the EPA, in determining BPT
limitations, is directed to consider the benefits of effluent
reductions as compared to the cost of pollution control in defining
the best practicable technology at a level that would effect the
1977 goal of substantially reducing total pollution produced by
each industrial category. Thus, the statute contemplated
regulations that would require a substantial number of point
sources with the poorest performances either to conform to BPT
standards or to cease production. To allow a BPT variance based on
economic capability and not to require adherence to the prescribed
minimum technology would permit the employment of the very
practices that the Administrator had rejected in establishing the
best practicable technology currently available in the industry.
Pp. 449 U. S.
73 -78.

															(b) The EPA's interpretation of the statutory language is also
supported by the legislative history, which shows that Congress
understood that the economic capability provision of § 301(c) was
limited to BAT variances; foresaw and accepted the economic
hardship, including the closing of some plants, that BPT effluent
limitations would cause; and took certain steps to alleviate this
hardship, steps which did not include allowing a BPT variance based
on economic capability. Pp. 449 U. S.
79 -83.

															(c) In the face of § 301(c)'s explicit limitation to BAT
variances and in the absence of any other specific direction in the
statute to provide for BPT variances in connection with permits for
individual point sources, the Administrator adopted a reasonable
construction of the statutory mandate, and the Court of Appeals
erred in concluding that, since BAT limitations are to be more
stringent than BPT limitations, the variance provision for the
latter must be at least as flexible as that for the former with
respect to affordability. Pp. 449 U. S.
83 -84.

															601 F.2d 111 and 604 F.2d 239, reversed. Page 449 U. S. 66 WHITE, J., delivered the opinion of the Court, in which all
other Members joined, except POWELL, J., who took no part in the
consideration or decision of the cases.

															JUSTICE WHITE delivered the opinion of the Court.

															In April and July, 1977, the Environmental Protection Agency
(EPA), acting under the Federal Water Pollution Control Act (Act),
as amended, 86 Stat. 816, 33 U.S.C. § 1251 et seq., promulgated pollution discharge limitations for the coal mining
industry and for that portion of the mineral mining and processing
industry comprising the crushed stone, construction sand, and
gravel categories. [ Footnote 1 ]
Although the Act does not expressly authorize or require variances
from the 1977 limitation, each set of regulations contained a
variance provision. [ Footnote
2 ] Respondents sought review of the regulations in Page 449 U. S. 67 various Courts of Appeals, challenging both the substantive
standards and the variance clause. [ Footnote 3 ] All of the petitions for review were
transferred to the Court of Appeals for the Fourth Circuit. In National Crushed Stone Assn. v. EPA, 601 F.2d 111 (1979),
and in Consolidation Coal Co. v. Costle, 604 F.2d 239
(1979), the Court of Appeals set aside the Page 449 U. S. 68 variance provision as "unduly restrictive" and remanded the
provision to EPA for reconsideration. [ Footnote 4 ]

															To obtain a variance from the 1977 uniform discharge
limitations, a discharger must demonstrate that the

															"factors relating to the equipment or facilities involved, the
process applied, or other such factors relating to such discharger
are fundamentally different from the factors considered in the
establishment of the guidelines."

															Although a greater than normal cost of implementation will be
considered in acting on a request for a variance, economic ability
to meet the costs will not be considered. [ Footnote 5 ] A variance, therefore, will not be granted
on the basis of the applicant's economic inability to meet the
costs of implementing the uniform standard.

															The Court of Appeals for the Fourth Circuit rejected this
position. It required EPA to "take into consideration, among other
things, the statutory factors set out in § 301(c)," which
authorizes variances from the more restrictive pollution
limitations to become effective in 1987 and which specifies
economic capability as a major factor to be taken into account.
[ Footnote 6 ] The court held
that

															"'if [a plant] is doing all that the maximum use of Page 449 U. S. 69 technology within its economic capability will permit, and if
such use will result in reasonable further progress toward the
elimination of the discharge of pollutants . . . no reason appears
why [it] should not be able to secure such a variance should it
comply with any other requirements of the variance.'"

															601 F.2d at 124, quoting from Appalachian Power Co. v.
Train, 545 F.2d 1351, 1378 (CA4 197).

															We granted certiorari to resolve the conflict between the
decisions below and Weyerhaeuser Co. v. Costle, 191
U.S.App.D.C. 309, 590 F.2d 1011 (1978), in which the variance
provision was upheld. 444 U.S. 1069. I We shall first briefly outline the basic structure of the Act,
which translates Congress' broad goal of eliminating "the discharge
of pollutants into the navigable waters," 33 U.S.C. § 1251(a)(1),
into specific requirements that must be met by individual point
sources. [ Footnote 7 ]

															Section 301(b) of the Act, 33 U.S.C. § 1311(b) (1976 ed. and
Supp. III), authorizes the Administrator to set effluent
limitations for categories of point sources. [ Footnote 8 ] With respect to existing point
sources, the section provides for implementation of increasingly
stringent effluent limitations in two steps. The first step to be
accomplished by July 1, 1977, requires all point sources to meet
standards based on "the application of Page 449 U. S. 70 the best practicable control technology currently available
[BPT] as defined by the Administrator. . . ." § 31(b)(1)(A). The
second step, to be accomplished by July 1, 1987, requires all point
sources to meet standards based on application of the "best
available technology economically achievable [BAT] for such
category or class. . . ." [ Footnote
9 ] § 301(b)(2)(A). Both sets of limitations -- BPT's followed
within 10 years by BAT's -- are to be based upon regulatory
guidelines established under § 304(b).

															Section 304(b) of the Act, 33 U.S.C. § 1314(b), is again divided
into two sections corresponding to the two levels of technology,
BPT and BAT. Under § 304(b)(1), the Administrator is to
quantify

															"the degree of effluent reduction attainable through the
application of the best practicable control technology currently
available [BPT] for classes and categories of point sources. . .
."

															In assessing the BPT, the Administrator is to consider

															"the total cost of application of technology in relation to the
effluent reduction benefits to be achieved from such application, .
. . the age of equipment and facilities involved, the process
employed, the engineering aspects of the application of various
types of control techniques, process changes, non-water quality
environmental impact (including energy requirements), and such
other factors as the Administrator deems appropriate."

															33 U.S.C. § 1314(b)(1)(b). Page 449 U. S. 71 Similar directions are given the Administrator for determining
effluent reductions attainable from the BAT, except that, in
assessing BAT, total cost is no longer to be considered in
comparison to effluent reduction benefits. [ Footnote 10 ]

															Section 402 authorizes the establishment of the National
Pollutant Discharge Elimination System (NPDES), under which every
discharger of pollutants is required to obtain a permit. The permit
requires the discharger to meet all the applicable requirements
specified in the regulations issued under § 301. Permits are issued
by either the Administrator or state agencies that have been
approved by the Administrator. [ Footnote 11 ] The permit

															"transform[s] generally applicable effluent limitations . . .
into the obligations (including a timetable for compliance) of the
individual discharger. . . ." EPA v. California ex rel. State Water Resources Control
Board, 426 U. S. 200 , 426 U. S. 205 (1976).

															Section 301(c) of the Act explicitly provides for modifying the
1987 (BAT) effluent limitations with respect to individual point
sources. A variance under § 301(c) may be obtained upon a
showing

															"that such modified requirements (1) will represent the maximum
use of technology within the economic capability of the owner or
operator; and (2) will result in reasonable further progress toward
the elimination Page 449 U. S. 72 of the discharge of pollutants."

															Thus, the economic ability of the individual operator to meet
the costs of effluent reductions may in some circumstances justify
granting a variance from the 1987 limitations.

															No such explicit variance provision exists with respect to BPT
standards, but in E. I. du Pont de Nemours Co. v. Train, 430 U. S. 112 (1977), we indicated that a variance provision was a necessary
aspect of BPT limitations applicable by regulations to classes and
categories of point sources. Id. at 430 U. S. 128 .
The issue in this case is whether the BPT variance provision must
allow consideration of the economic capability of an individual
discharger to afford the costs of the BPT limitation. For the
reasons that follow, our answer is in the negative. [ Footnote 12 ] Page 449 U. S. 73 II The plain language of the statute does not support the position
taken by the Court of Appeals. Section 301(c) is limited on its
face to modifications of the 1987 BAT limitations. It says nothing
about relief from the 1977 BPT requirements. Nor does the language
of the Act support the position that, although § 301(c) is not
itself applicable to BPT standards, it requires that the
affordability of the prescribed 1977 technology be considered in
BPT variance decisions. [ Footnote 13 ] Page 449 U. S. 74 This would he a logical reading of the statute only if the
factors listed in § 301(c) bore a substantial relationship to the
considerations underlying the 1977 limitations as they do to those
controlling the 1987 regulations. This is not the case.

															The two factors listed in § 301(c) -- "maximum use of technology
within the economic capability of the owner or operator" and
"reasonable further progress toward the elimination of the
discharge of pollutants" -- parallel the general definition of BAT
standards as limitations that

															"require application of the best available technology
economically achievable for such category or class, which will
result in reasonable further progress toward . . . eliminating the
discharge of all pollutants. . . ."

															§ 301(b)(2). A § 301(c) variance, thus, creates for a particular
point source a BAT standard that represents for it the same sort of
economic and technological commitment as the general BAT standard
creates for the class. As with the general BAT standard, the
variance assumes that the 1977 BPT standard has been met by the
point source and that the modification represents a commitment of
the maximum resources economically possible to the ultimate goal of
eliminating all polluting discharges. Page 449 U. S. 75 No one who can afford the best available technology can secure a
variance.

															There is no similar connection between § 301(c) and the
considerations underlying the establishment of the 1977 BPT
limitations. First, § 301(c)'s requirement of "reasonable further
progress" must have reference to some prior standard. BPT serves as
the prior standard with respect to BAT. There is, however, no
comparable, prior standard with respect to BPT limitations.
[ Footnote 14 ] Second, BPT
limitations do not require an industrial category to commit the
maximum economic resources possible to pollution control, even if
affordable. Those point sources already using a satisfactory
pollution control technology need take no additional steps at all.
The § 301(c) variance factor, the "maximum use of technology within
the economic capability of the owner or operator," would therefore
be inapposite in the BPT context. It would not have the same effect
there that it has with respect to BAT's, i.e., it would
not apply the general requirements to an individual point
source.

															More importantly, to allow a variance based on the maximum
technology affordable by the point source, even if that technology
fails to meet BPT effluent limitations, would undercut the purpose
and function of BPT limitations. Rather than the 1987 requirement
of the best measures economically and technologically feasible, the
statutory provisions for 1977 contemplate regulations prohibiting
discharges from any point source in excess of the effluent produced
by the best practicable technology currently available Page 449 U. S. 76 in the industry. The Administrator was referred to the industry
and to existing practices to determine BPT. He was to categorize
point sources, examine control practices in exemplary plants in
each category, and, after weighing benefits and costs and
considering other factors specified by § 304, determine and define
the best practicable technology at a level that would effect the
obvious statutory goal for 1977 of substantially reducing the total
pollution produced by each category of the industry. [ Footnote 15 ] Necessarily, if
pollution is to be diminished, limitations based on BPT must forbid
the level of effluent produced by the most pollution-prone segment
of the industry, that segment not measuring up to "the average of
the best existing performance." So understood, the statute
contemplated regulations that would require a substantial number of
point sources with the poorest performances either to conform to
BPT standards or to cease production. To allow a variance based on
economic capability and not to require adherence to the prescribed
minimum technology would permit the employment of the very
practices that the Administrator had rejected in establishing the
best practicable technology currently in use in the industry.

															To put the matter another way, under § 304, the Administrator is
directed to consider the benefits of effluent reductions as
compared to the costs of pollution control in determining BPT
limitations. Thus, every BPT limitation represents a conclusion by
the Administrator that the costs imposed on the industry are worth
the benefits in pollution reduction Page 449 U. S. 77 that will be gained by meeting those limits. To grant a variance
because a particular owner or operator cannot meet the normal costs
of the technological requirements imposed on him, and not because
there has been a recalculation of the benefits compared to the
costs, would be inconsistent with this legislative scheme and would
allow a level of pollution inconsistent with the Judgment of the
Administrator. [ Footnote
16 ]

															In terms of the scheme implemented by BPT limitations, the
factors that the Administrator considers in granting variances do
not suggest that economic capability must also be a determinant.
The regulations permit a variance where

															"factors relating to the equipment or facilities involved, the
process applied, or such other factors relating to such discharger
are fundamentally different from the factors considered in the
establishment of the guidelines."

															If a point source can show that its situation, including its
costs of compliance, is not within the range of circumstances
considered by the Administrator, then it may receive a variance,
whether or not the source could afford to comply with the minimum
standard. [ Footnote 17 ] In
such situations, the variance is an acknowledgment Page 449 U. S. 78 that the uniform BPT limitation was set without reference to the
full range of current practices, to which the Administrator was to
refer. Insofar as a BPT limitation was determined without
consideration of a current practice fundamentally different from
those that were considered by the Administrator, that limitation is
incomplete. A variance based on economic capability, however, would
not have this character: it would allow a variance simply because
the point source could not afford a compliance cost that is not
fundamentally different from those the Administrator has already
considered in determining BPT. It would force a displacement of
calculations already performed, not because those calculations were
incomplete or had unexpected effects, but only because the costs
happened to fall on one particular operator, rather than on another
who might be economically better off.

															Because the 1977 limitations were intended to reduce the total
pollution produced by an industry, requiring compliance with BPT
standards necessarily imposed additional costs on the segment of
the industry with the least effective technology. If the statutory
goal is to be achieved, these costs must be borne or the point
source eliminated. In our view, requiring variances from otherwise
valid regulations where dischargers cannot afford normal costs of
compliance would undermine the purpose and the intended operative
effect of the 1977 regulations. Page 449 U. S. 79 III The Administrator's present interpretation of the language of
the statute is amply supported by the legislative history, which
persuades us that Congress understood that the economic capability
provision of § 301(c) was limited to BAT variances; that Congress
foresaw and accepted the economic hardship, including the closing
of some plants, that effluent limitations would cause; and that
Congress took certain steps to alleviate this hardship, steps which
did not include allowing a BPT variance based on economic
capability. [ Footnote
18 ]

															There is no indication that Congress intended § 301(c) to reach
further than the limitations of its plain language. The statement
of the House managers of the Act described § 301(c) as

															"not intended to justify modifications which would not represent
an upgrading over the July 1, 1977, requirements of 'best
practicable control technology.'"

															Leg.Hist. 232. The Conference Report noted that a § 301(c)
variance could only be granted after the effective date of BPT
limitations, Page 449 U. S. 80 and could only be applied to BAT limitations. Similarly, the
Senate Report on the Conference action emphasized that one of the
purposes of the BPT limitation was to avoid imposing on the
"Administrator any requirement . . . to determine the economic
impact of controls on any individual plant in a single community."
Leg.Hist. 170.

															Nor did Congress restrict the reach of § 301(c) without
understanding the economic hardships that uniform standards would
impose. Prior to passage of the Act, Congress had before it a
report jointly prepared by EPA, the Commerce Department, and the
Council on Environmental Quality on the impact of the pollution
control measures on industry. [ Footnote 19 ] That report estimated that there would be
200 to 300 plant closings caused by the first set of pollution
limitations. Comments in the Senate debate were explicit: "There is
no doubt that we will suffer some disruptions in our economy
because of our efforts; many marginal plants may be forced to
close." Leg.Hist. 1282 (Sen. Bentsen). [ Footnote 20 ] The House managers explained the
Conference position as follows:

															"If the owner or operator of a given point source determines
that he would rather go out of business than meet the 1977
requirements, the managers clearly expect that any discharge issued
in the interim would reflect the fact that all discharges not in
compliance with such 'best practicable technology currently
available' would cease by June 30, 1977." Id. at 231.

															Congress did not respond to this foreseen economic impact by
making room for variances based on economic impact. In fact, this
possibility was specifically considered and rejected:

															"The alternative [to a loan program] would be waiving strict
environmental standards where economic hardship Page 449 U. S. 81 could be shown. But the approach of giving variances to
pollution controls based on economic grounds has long ago shown
itself to be a risky course: all too often, the variances become a
tool used by powerful political interests to obtain so many
exemptions for pollution control standards and timetables on the
filmsiest [ sic ] of pretenses that they become meaningless.
In short, with variances, exceptions to pollution cleanup can
become the rule, meaning further tragic delay in stopping the
destruction of our environment." Id. at 1355 (Sen. Nelson). Instead of economic
variances, Congress specifically added two other provisions to
address the problem of economic hardship.

															First, provision was made for low-cost loans to small businesses
to help them meet the cost of technological improvements. 86 Stat.
898, amending § 7 of the Small Business Act, 15 U.S.C. § 636. The
Conference Report described the provision as authorizing the Small
Business Administration

															"to make loans to assist small business concerns . . . if the
Administrator determines that the concern is likely to suffer
substantial economic injury without such assistance."

															Leg.Hist. 153. Senator Nelson, who offered the amendment
providing for these loans, saw the loans as an alternative to the
dangers of an economic variance provision that he felt might
otherwise be necessary. [ Footnote 21 ] Several Congressmen understood the loan
program as an alternative to forced closings:

															"It is the smaller business that is hit hardest by these laws
and their enforcement. And it is that same class of business that
has the least resources to meet the demands of this enforcement. .
. . Without assistance, many of these businesses may face
extinction." Id. at 1359 (Sen. McIntyre). [ Footnote 22 ] Page 449 U. S. 82 Second, an employee protection provision was added, giving EPA
authority to investigate any plant's claim that it must cut back
production or close down because of pollution control regulations.
§ 507(e), 86 Stat. 890,33 U.S.C. 1367(e). [ Footnote 23 ] This provision had two purposes: to
allow EPA constantly to monitor the economic effect on industry of
pollution control rules and to undercut economic threats by
industry that would create pressure to relax effluent limitation
rules. [ Footnote 24 ]
Representative Fraser explained this second purpose as follows:

															"[T]he purpose of the amendment is to provide for a public
hearing in the case of an industry claim that Page 449 U. S. 83 enforcement of these water control standards will force it to
relocate or otherwise shut down operations. . . . I think too many
companies use the excuse of compliance, or the need for compliance,
to change operations that are going to change anyway. It is this
kind of action that gives the whole antipollution effort a bad
name, and causes a great deal of stress and strain in the
community."

															Leg.Hist. 659.

															The only protection offered by the provision, however, is the
assurance that there will be a public inquiry into the facts behind
such an economic threat. The section specifically concludes
that

															"[n]othing in this subsection shall be construed to require or
authorize the Administrator to modify or withdraw any effluent
limitation or order issued under this chapter."

															§ 507(e), 33 U.S.C. § 1367(e).

															As we see it, Congress anticipated that the 1977 regulations
would cause economic hardship and plant closings: "[T]he question .
. . is not what a court thinks is generally appropriate to the
regulatory process; it is what Congress intended for these regulations." Du Pont, 430 U.S. at 430 U. S.
138 . IV It is by now a commonplace that,

															"when faced with a problem of statutory construction, this Court
shows great deference to the interpretation given the statute by
the officers or agency charged with its administration." Udall v. Tallman, 380 U. S. 1 , 380 U. S. 16 (1965). [ Footnote 25 ] The
statute itself does not provide Page 449 U. S. 84 for BPT variances in connection with permits for individual
point sources, and we had no occasion in Du Pont to
address the adequacy of the Administrator's 1977 variance
provision. In the face of § 301(c)'s explicit limitation and in the
absence of any other specific direction to provide for variances in
connection with permits for individual point sources, we believe
that the Administrator has adopted a reasonable construction of the
statutory mandate.

															In rejecting EPA's interpretation of the BPT variance provision,
the Court of Appeals relied on a mistaken conception of the
relation between BPT and BAT standards. The court erroneously
believed that, since BAT limitations are to be more stringent than
BPT limitations, the variance provision for the latter must be at
least as flexible as that for the former with respect to
affordability. [ Footnote 26 ]
The variances permitted by § 301(c) from the 1987 limitations,
however, can reasonably be understood to represent a cost in
decreased effluent reductions that can only be afforded once the
minimal standard expressed in the BPT limitation has been reached.
[ Footnote 27 ] Page 449 U. S. 85 We conclude, therefore, that the Court of Appeals erred in not
accepting EPA's interpretation of the Act. EPA is not required by
the Act to consider economic capability in granting variances from
its uniform BPT regulations.

															The Judgments of the Court of Appeals are Reversed.

															JUSTICE POWELL took no part in the consideration or decision of
these cases.

															* Together with Costle, Administrator, Environmental
Protection Agency v. Consolidation Coal Co. et al., also on
certiorari to the same court (see this Court's Rule 19.4).

															[ Footnote 1 ]

															The coal mining standards were published at 42 Fed.Reg. 21380 et seq. (1977), adopting 40 CFR Part 434. The mineral
mining and processing standards were published at 42 Fed.Reg. 35843 et seq. (1977), adopting 40 CFR Part 436.

															[ Footnote 2 ]

															The variance provision reads as follows:

															"In establishing the limitations set forth in this section, EPA
took into account all information it was able to collect, develop
and solicit with respect to factors (such as age and size of plant,
raw materials, manufacturing processes, products produced,
treatment technology available, energy requirements and costs)
which can affect the industry subcategorization and effluent levels
established. It is, however, possible that data which would affect
these limitations have not been available and, as a result, these
limitations should be adjusted for certain plants in this industry.
An individual discharger or other interested person may submit
evidence to the Regional Administrator (or to the State, if the
State has the authority to issue NPDES permits) that factors
relating to the equipment or facilities involved, the process
applied, or other such factors related to such discharger are
fundamentally different from the factors considered in the
establishment of the guidelines. On the basis of such evidence or
other available information, the Regional Administrator (or the
State) will make a written finding that such factors are or are not
fundamentally different for that facility compared to those
specified in the Development Document. If such fundamentally
different factors are found to exist, the Regional Administrator or
the State shall establish for the discharger effluent limitations
in the NPDES permit either more or less stringent than the
limitations established herein, to the extent dictated by such
fundamentally different factors. Such limitation must be approved
by the Administrator of the Environmental Protection Agency. The
Administrator may approve or disapprove such limitations, specify
other limitations, or initiate proceedings to revise these
regulations." See 40 CFR § 434.22 (1980) (coal preparation plants); §
434.32 (acid mine drainage); § 434.42 (alkaline mine drainage); §
436.22 (crushed stone) and § 436.32 (construction sand and
gravel).

															[ Footnote 3 ]

															The actions were brought under § 509(b)(1)(E), which, as set
forth in 33 U.S.C. § 1369(b)(1)(E), gives the courts of appeals
jurisdiction to review "the Administrator's action . . . in
approving or promulgating any effluent limitation or other
limitation under section 1311 . . . of this title. . . ."
Plaintiffs in National Crushed Stone were three producers
and their trade association. Plaintiffs in Consolidation
Coal were 17 coal producers, their trade association, 5
citizens' environmental associations, and the Commonwealth of
Pennsylvania.

															[ Footnote 4 ]

															In National Crushed Stone, the Court of Appeals also
vacated and remanded the substantive regulations. That action is
not before the Court. In Consolidation Coal, the
substantive regulations were upheld.

															[ Footnote 5 ]

															EPA has explained its position as follows:

															"Thus, a plant may be able to secure a BPT variance by showing
that the plant's own compliance costs with the national guideline
limitation would be x times greater than the compliance costs of
the plants EPA considered in setting the national BPT limitation. A
plant may not, however, secure a BPT variance by alleging that the
plant's own financial status is such that it cannot afford to
comply with the national BPT limitation."

															43 Fed.Reg. 50042 (1978).

															[ Footnote 6 ]

															Section 301(c), 86 Stat. 844, 33 U.S.C. § 1311(c), allows the
Administrator to grant a variance

															"upon a showing by the owner or operator . . . that such
modified requirements (1) will represent the maximum use of
technology within the economic capability of the owner or operator;
and (2) will result in reasonable further progress toward the
elimination of the discharge of pollutants."

															[ Footnote 7 ]

															A "point source" is defined as "any discernible, confined and
discrete conveyance, . . . from which pollutants are or may be
discharged." § 502(14), 33 U.S.C. § 1362(14) (1976 ed., Supp.
III).

															[ Footnote 8 ]

															Throughout this opinion, "Administrator" refers to the
Administrator of EPA. In E. I. du Pont de Nemours & Co. v.
Train, 430 U. S. 112 (1977), we sustained the Administrator's authority to issue the
1977 effluent limitations.

															[ Footnote 9 ]

															The Federal Water Pollution Control Act Amendments of 1972, 86
Stat. 816, required that the second-stage standards be met by 1983.
This deadline was extended in the Clean Water Act of 1977, 91 Stat.
1567. Depending on the nature of the pollutant, the deadline for
the more stringent limitations now falls between July 1, 1984, and
July 1, 1987. The 1977 Act also replaced the BAT standard with a
new standard, "best conventional pollutant control technology [BCT]
," for certain so-called "conventional pollutants." 33 U.S.C. §
1311(b)(2)(1) (1976 ed., Supp. III). The distinction between BCT
and BAT is not relevant to the issue presented here.

															[ Footnote 10 ]

															Senator Muskie, the principal Senate sponsor of the Act,
described the "limited cost-benefit analysis" employed in setting
BPT standards as being intended to

															"limit the application of technology only where the additional
degree of effluent reduction is wholly out of proportion to the
costs of achieving such marginal level of reduction. . . ."

															Remarks of Senator Muskie reprinted in Legislative History of
the Water Pollution Control Act Amendments of 1972 (Committee Print
compiled for the Senate Committee on Public Works by the Library of
Congress) Ser. No. 93-1, p. 170 (1973) (hereafter Leg.Hist.).
Section 304(b)(2)(b) lists "cost" as a factor to consider in
assessing BAT, although it does not state that costs shall be
considered in relation to effluent reduction.

															[ Footnote 11 ]

															Establishment of state permit programs is authorized by §
402(b), 33 U.S.C. § 1342(b) (1976 ed., Supp. III). At present, over
30 States and covered territories operate their own NPDES
programs.

															[ Footnote 12 ]

															In Du Pont, we held that preenforcement review of the
BPT variance provision would be "premature," 430 U.S. at 430 U. S. 128 ,
n.19. In its petition for certiorari in this case, EPA argued that
the Court of Appeals erred in reviewing the variance clause prior
to application of the regulation to a particular discharger's
request for a variance. EPA has now abandoned this position. We
agree with the Court of Appeals that whatever may have been true at
the time of Du Pont, preenforcement review of the variance
provision is no longer premature, since EPA has now taken the
definitive position that the factors specified in § 301(c) apply
only to BAT limitations, and not to BPT limitations. See 43 Fed.Reg. 44847-44848, 50042 (1978); 44 Fed.Reg. 32893-32894
(1979). But cf. n 25, infra. The Court of Appeals for the District of
Columbia Circuit reached the same conclusion in considering the
identical variance clause in the context of BPT standards for paper
mills:

															"In the three years that have now elapsed since du Pont was briefed and argued in the Fourth Circuit, however, enough
indicia of the Agency's attitude toward the 1977 variance provision
under the Act has [ sic ] accumulated so that its
administration is anything but 'a matter of speculation.'" Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 330,
590 F.2d 1011, 1032 (1978) (citation omitted).

															This is the proper result under the twofold test articulated in Abbott Laboratories v. Gardner, 387 U.
S. 136 , 387 U. S. 149 (1967), for evaluating the ripeness of administrative action.
First, the issue is "fit" for judicial decision, because it
involves only a question of law: whether the Court of Appeals
properly construed the Act to require EPA to consider § 301(c)
factors in granting BPT variances. Second, failure to review the
variance issue now would cause "hardship" to the parties. The
regulations in question affect thousands of point sources
throughout the country -- about 4,800 crushed-stone facilities and
6,000 coal facilities, many of them involved in this case through
their trade associations. The resolution of this conflict will
determine for some of these plants whether they will continue to
exist or not, and, for many others, it will determine the level of
funding they must budget for pollution controls. They should not be
left to speculate on what the regulations require of them.
Similarly, EPA represents to the Court that a failure to resolve
the issue will cause some hardship to EPA: "a present ruling . . .
would advance, rather than impede, the administrative enforcement
of the Act." Brief for Petitioners 1, n. 17.

															Moreover, in Du Pont, supra, we held that a uniform BPT
effluent regulation must contain a variance provision, if it is to
be valid. EPA has definitively stated that economic capability will
not be a ground for a variance. Section 509(b)(1)(E) provides for
judicial review of effluent limitations promulgated pursuant to §
301, and these actions were brought under that section. Since the
variance clause is an integral part of the regulation, review of
the regulation must reach the question of whether this limitation
on the scope of the variance provision renders the regulation
invalid under Du Pont. Finally, the fact that the Court of Appeals for the Fourth
Circuit held the variance provision to be invalid, while the Court
of Appeals for the District of Columbia Circuit in Weyerhaeuser, supra, upheld the same provision, provides
yet another reason for this Court to settle this controversy at
this time. For all of these reasons, the issue is ripe for judicial
review.

															[ Footnote 13 ]

															It is true that, in Du Pont, we said there "[was no]
radical difference in the mechanism used to impose limitations for
the 1977 and the 198[7] deadlines" and that "there is no indication
in either § 301 or § 304 that the § 304 guidelines play a different
role in setting 1977 limitations." 430 U.S. at 430 U. S. 127 .
But our decision in Du Pont was that the 1977 limitations,
like the 1987 limitations, could be set by regulation and for
classes of point sources. It dealt with the power of the
Administrator and the procedures he was to employ. There was no
suggestion, nor could there have been, that the 1977 BPT and the
1987 BAT limitations were to have identical purposes or content. It
follows that no proper inference could be drawn from Du
Pont that the grounds for issuing variances from the 1987
limitations should also be the grounds for permitting individual
point sources to depart from 1977 standards. Indeed, our opinion
recognized that § 301(c) was designed for BAT limitations, 430 U.S.
at 430 U. S. 121 , 430 U. S. 127 ,
n. 17. Had we thought that § 301(c) governed variances from both
the BAT and BPT standards, there would have been no need to
postpone to another day, as we did in 430 U.S. at 430 U. S. 128 ,
n.19, the question whether the variance clause contained in the
1977 regulations had the proper scope. That scope would have been
defined by § 301(c).

															[ Footnote 14 ]

															Also, the ultimate goal expressed in § 301(c), "the elimination
of the discharge of pollutants," reflects the "national goal"
specified in § 301(b)(2)(A) of "eliminating the discharge of all
pollutants." This is not the aim of a BPT limitation; its more
modest purpose is to effect a first step toward this goal. Thus,
while BAT limitations may be regarded as falling between a level of
effluent reduction already achieved and the ultimate goal, the
frame of reference within which BPT limitations are established
contains neither the prior nor the subsequent measure.

															[ Footnote 15 ]

															EPA defines BPT as

															"the average of the best existing performance by plants of
various sizes, ages and unit processes within each industrial
category or subcategory. This average is not based upon a broad
range of plants within an industrial category or subcategory, but
is based upon performance levels achieved by exemplary plants."

															39 Fed.Reg. 6580 (1974). See also EPA, Effluent
Guidelines Div., Development Document for Mineral Mining and
Processing Point Source Category 409 (1979) and Development
Document for Coal Mining 225 (1976). Support for this definition is
found in the legislative history, Leg.Hist. 169-170 (remarks of
Sen. Muskie); id. at 231 (remarks of Rep. Jones).

															[ Footnote 16 ]

															Respondents fail to consider this tension between a general
calculation of costs and benefits and a particularized
consideration of costs when they argue that, because EPA only has
authority to promulgate industry-wide BPT regulations by analogy to
its authority to promulgate industry-wide BAT regulations, the same
kind of economic capability/effluent reduction balancing relevant
to a BAT variance must apply as well to a BPI variance.

															[ Footnote 17 ]

															Respondents argue that precluding consideration of economic
capability in determining whether to grant a variance effectively
precludes consideration of the "total costs" for the individual
point source. Respondents rely upon a statement by Representative
Jones as to the meaning of "total cost" in § 304(b)(1)(b):

															"internal, or plant, costs sustained by the owner or operator
and those external costs such as potential unemployment,
dislocation and rural area economic development sustained by the
community, area, or region."

															Leg.Hist. 231. Unless economic capability is considered, it is
argued, it will be impossible to consider the potential external
costs of meeting a BPT limitation, caused by a plant closing.
Although there is some merit to respondents' contention, we do not
believe it supports the decision of the Court of Appeals. The court
did not hold that economic capability is relevant only if it
discloses "fundamentally different" external costs from those
considered by EPA in establishing the BPT limitation; rather, the
court held that the factors included in § 301(c) must be taken into
consideration. Section 301(c) makes economic capability, regardless
of its effect on external costs, a ground for a variance. It is
this position that we reject.

															[ Footnote 18 ]

															Since any variance provision will permit nonuniformity with the
general BPT standard for a given category, we cannot attribute much
weight to those passages in the legislative history, to which EPA
points, that express a desire and expectation that

															"each polluter within a category or class of industrial sources
. . . achieve nationally uniform effluent limitations based on
'best practicable' technology no later than July 1, 1977."

															" See Leg.Hist. 162 (statement of Sen. Muskie). See
also e.g., id. at 170; id. at 302, 309 (Conference
Report); id. at 787 (Report of House Committee on Public
Works). Moreover, EPA has itself stated that a variance does not
represent an exception to BPT or BAT limitations, but rather sets
an individualized BPT or BAT limitation for that point source:"

															"No discharger . . . may be excused from the Act's requirement
to meet BPT [and] BAT . . . through this variance clause. A
discharger may instead receive an individualized definition of such
a limitation or standard where the nationally prescribed limit is
shown to be more or less stringent than appropriate for the
discharger under the Act."

															44 Fed.Reg. 32893 (1979). Therefore, expressions of an intent
that "all" point sources meet BPT standards by 1977 do not
necessarily support EPA's argument.

															[ Footnote 19 ]

															U.S. Council on Environmental Quality, Dept. of Commerce, &
EPA, The Economic Impact of Pollution Control (Mar.1972). See Leg.Hist. 156, 523.

															[ Footnote 20 ] See also remarks quoted in n 22, infra. [ Footnote 21 ] See quotation above.

															[ Footnote 22 ]

															Similar remarks were made by Representative Harrington ("No one
in Congress wishes to legislate so irresponsibly that we drive out
of business t.hose who sincerely wish to abide by the new pollution
laws but who, because of a bad state of the economy, will be forced
to close. The $800 million authorized by this section may not be
completely adequate. But it is a start." Leg.Hist. 450).

															[ Footnote 23 ]

															Section 507(e) provides in pertinent part:

															"The Administrator shall conduct continuing evaluations of
potential loss or shifts of employment which may result from the
issuance of any effluent limitation or order under this chapter,
including, where appropriate, investigating threatened plant
closures or reductions in employment allegedly resulting from such
limitation or order. Any employee who is discharged or laid-off,
threatened with discharge or lay-off . . . because of the alleged
results of any effluent limitation or order issued under this
chapter . . . may request the Administrator to conduct a full
investigation of the matter. . . . [T]he Administrator shall make
findings of fact as to the effect of such effluent limitation or
order on employment and on the alleged discharge, layoff, or
discrimination and shall make such recommendations as he deems
appropriate. Such report, findings, and recommendations shall be
available to the public."

															33 U.S.C. § 1367(e).

															[ Footnote 24 ] See Leg.Hist. 654-659. Representative Abzug emphasized
the first purpose of the provision:

															"This amendment will allow the Congress to get a close look at
the effects on employment of legislation such as this, and will
thus place us in a position to consider such remedial legislation
as may be necessary to ameliorate those effects." Id. at 658. Representative Miller noted that

															"some economic hardship, especially in smaller communities who
rely on single, older plants, may result from the requirements of
the pending bill,"

															but opposed this provision because he thought that economic
hardships caused by the Act should be addressed systematically by
modifying the Economic Development Act. Ibid. [ Footnote 25 ]

															Respondents contend that deference to agency interpretation is
not appropriate in this case, because EPA has not consistently
interpreted the BPT variance requirements. However, in only one
instance has EPA stated that it would consider economic capability
in relation to BPT variance applications. 43 Fed.Reg. 44846-44848
(1978). This was in response to the Court of Appeals decision in Appalachian Power Co. v. Train, 545 F.2d 1351 (CA4 1976),
and EPA specifically limited this change to steam electric power
generating plants, which were the subject of the court's order.

															[ Footnote 26 ]

															This argument appears in Appalachian Power, supra at
1359, which the Court of Appeals relies upon in Crushed
Stone. 601 F.2d at 123.

															The Court of Appeals also believed that, because there will be
situations in which the BPT and the BAT standards are identical, see Development Document for Mineral Mining, supra, n 15, at
438, it would be illogical to allow a variance based on economic
capability for the latter, but not for the former. The result would
be to "close a plant in 1979 which would be allowed to operate
under a variance in 1983." 601 F.2d at 124. This assumes, however,
that a variance would be available even though BPT standards had
not been met, an assumption which EPA rejects, Brief for
Petitioners 27, and which is questionable in light of the
legislative history. Leg.Hist. 232 ("This provision [§ 301(c)] is
not intended to justify modifications which would not represent an
upgrading over the July 1, 1977, requirements of best
practicable control technology.'" (Rep. Jones, chairman of the
House Conferees)). The suggested contradiction is accordingly
unlikely to appear. In any event, it is of minor significance in
considering the facial validity of the 1977 variance
provisions. [ Footnote 27 ]

															We find no support for respondents' contention that Congress
implicitly approved the Court of Appeals' reading of the variance
provision, when it considered and passed the 1977 amendments to the
Act. Respondents rely primarily on the discussion of Appalachian Power in a document prepared by the Library of
Congress for the House Committee on Public Works and
Transportation, Case Law Under the FWPCA Amendments of 1972
(Comm.Print 1977). However, that document notes that there was at
that time a conflict in the United States Courts of Appeals over
the validity of the variance provision, and in no way indicates
that the Appalachian Power decision was the correct
interpretation. Id. at 28.

Summary:
The case revolves around the Environmental Protection Agency's (EPA) interpretation of the Federal Water Pollution Control Act and its ability to set pollution discharge limitations for industries. The dispute is over the EPA's authority to grant variances from these limitations, considering economic capability.

The Court of Appeals held that the EPA must consider economic capability when granting variances from its uniform Best Practicable Control Technology (BPT) standards. However, the Supreme Court disagreed, stating that the plain language of the statute does not support this interpretation. The Court found that the EPA is not required by the Act to consider economic capability when granting variances from BPT standards, and that the Act only provides for variances from the more stringent Best Available Technology (BAT) standards based on economic capability.

The Supreme Court accepted the EPA's interpretation of the Act and overruled the Court of Appeals, giving deference to the agency's expertise in interpreting and implementing the statute. This decision affirmed the EPA's authority to set uniform BPT standards without considering the economic capabilities of individual industries.


U.S. Supreme Court United States v. Riverside Bayview, 474
U.S. 121 (1985) United States v. Riverside Bayview
Homes, Inc. No. 84-701 Argued October 16,
1985 Decided December 4,
1985 474
U.S. 121 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus 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 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. Page 474 U. S. 123 JUSTICE WHITE delivered the opinion of the Court.

															This case presents the question whether the Clean Water Act
(CWA), 33 U.S.C. § 1251 et seq., together with certain
regulations promulgated under its authority by the Army Corps of
Engineers, authorizes the Corps to require landowners to obtain
permits from the Corps before discharging fill material into
wetlands adjacent to navigable bodies of water and their
tributaries. I The relevant provisions of the Clean Water Act originated in the
Federal Water Pollution Control Act Amendments of 1972, 86 Stat.
816, and have remained essentially unchanged since that time. Under
§§ 301 and 502 of the Act, 33U.S.C. §§ 1311 and 1362, any discharge
of dredged or fill materials into "navigable waters" -- defined as
the "waters of the United States" -- is forbidden unless authorized
by a permit issued by the Corps of Engineers pursuant to § 404, 33
U.S.C. § 1344. [ Footnote 1 ]
After initially construing the Act to cover only waters navigable
in fact, in 1975 the Corps issued interim final regulations
redefining "the waters of the United States" to include not only
actually navigable waters but also tributaries of such waters,
interstate waters and their tributaries, and nonnavigable
intrastate waters whose use or misuse could affect interstate
commerce. 40 Fed.Reg. 31320 Page 474 U. S. 124 (1975). More importantly for present purposes, the Corps
construed the Act to cover all "freshwater wetlands" that were
adjacent to other covered waters. A "freshwater wetland" was
defined as an area that is "periodically inundated" and is
"normally characterized by the prevalence of vegetation that
requires saturated soil conditions for growth and reproduction." 33
CFR § 209.120(d)(2)( h ) (1976). In 1977,the Corps refined
its definition of wetlands by eliminating the reference to periodic
inundation and making other minor changes. The 1977 definition
reads as follows:

															"The term 'wetlands' means those areas that are in undated 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. Wetlands generally include swamps,
marshes, bogs and similar areas."

															33 CFR § 323.2(c) (1978). In 1982, the 1977 regulations were
replaced by substantively identical regulations that remain in
force today. See 33 CFR § 323.2 (1985). [ Footnote 2 ] Respondent Riverside Bayview
Homes, Inc. (hereafter respondent), owns 80 acres of low-lying,
marshy land near the shores of Lake St. Clair in Macomb County,
Michigan. In 1976, respondent began to place fill materials on its
property as part of its preparations for construction of a housing
development. The Corps of Engineers, believing that the property
was an "adjacent wetland" under the 1975 regulation defining
"waters of the United States," filed suit in the United States
District Court for the Eastern District of Michigan, seeking to
enjoin respondent from filling the property without the permission
of the Corps. Page 474 U. S. 125 The District Court held that the portion of respondent's
property lying below 575.5 feet above sea level was a covered
wetland, and enjoined respondent from filling it without a permit.
Civ. No. 77-70041 (Feb. 24, 1977) (App. to Pet. for Cert. 22a);
Civ. No. 77-70041 (June 21, 1979) (App. to Pet. for Cert. 32a).
Respondent appealed, and the Court of Appeals remanded for
consideration of the effect of the intervening 1977 amendments to
the regulation. 615 F.2d 1363 (1980). On remand, the District Court
again held the property to be a wetland subject to the Corps'
permit authority. Civ. No. 77-70041 (May 10, 1981) (App. to Pet.
for Cert. 42a).

															Respondent again appealed, and the Sixth Circuit reversed. 729
F.2d 391 (1984). The court construed the Corps' regulation to
exclude from the category of adjacent wetlands -- and hence from
that of "waters of the United States" -- wetlands that were not
subject to flooding by adjacent navigable waters at a frequency
sufficient to support the growth of aquatic vegetation. The court
adopted this construction of the regulation because, in its view, a
broader definition of wetlands might result in the taking of
private property without just compensation. The court also
expressed its doubt that Congress, in granting the Corps
jurisdiction to regulate the filling of "navigable waters,"
intended to allow regulation of wetlands that were not the result
of flooding by navigable waters. [ Footnote 3 ] Under the court's reading of the regulation,
respondent's property was not within the Corps' jurisdiction,
because its semiaquatic characteristics were not the result of
frequent flooding by the nearby navigable waters. Respondent was
therefore free to fill the property without obtaining a permit. Page 474 U. S. 126 We granted certiorari to consider the proper interpretation of
the Corps' regulation defining "waters of the United States" and
the scope of the Corps' jurisdiction under the Clean Water Act,
both of which were called into question by the Sixth Circuit's
ruling. 469 U.S. 1206 (1985). We now reverse. II The question whether the Corps of Engineers may demand that
respondent obtain a permit before placing fill material on its
property is primarily one of regulatory and statutory
interpretation: we must determine whether respondent's property is
an "adjacent wetland" within the meaning of the applicable
regulation, and, if so, whether the Corps' jurisdiction over
"navigable waters" gives it statutory authority to regulate
discharges of fill material into such a wetland. In this
connection, we first consider the Court of Appeals' position that
the Corps' regulatory authority under the statute and its
implementing regulations must be narrowly construed to avoid a
taking without just compensation in violation of the Fifth
Amendment.

															We have frequently suggested that governmental land use
regulation may, under extreme circumstances, amount to a "taking"
of the affected property. See, e.g., Williamson County Regional
Planning Comm'n v. Hamilton Bank, 473 U.
S. 172 (1985); Penn Central Transportation Co. v.
New York City, 438 U. S. 104 (1978). We have never precisely defined those circumstances, see id. at 438 U. S.
123 -128, but our general approach was summed up in Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 (1980), where we stated that the application of land use
regulations to a particular piece of property is a taking only "if
the ordinance does not substantially advance legitimate state
interests . . . or denies an owner economically viable use of his
land." Moreover, we have made it quite clear that the mere
assertion of regulatory jurisdiction by a governmental body does
not constitute a regulatory taking. See Hodel v. Virginia
Surface Mining & Reclamation Assn. , 452 Page 474 U. S. 127 U.S. 264, 452 U. S.
293 -297 (1981). The reasons are obvious. A requirement
that a person obtain a permit before engaging in a certain use of
his or her property does not, itself, "take" the property in any
sense: after all, the very existence of a permit system implies
that permission may be granted, leaving the landowner free to use
the property as desired. Moreover, even if the permit is denied,
there may be other viable uses available to the owner. Only when a
permit is denied and the effect of the denial is to prevent
"economically viable"use of the land in question can it be said
that a taking has occurred.

															If neither the imposition of the permit requirement itself nor
the denial of a permit necessarily constitutes a taking, it follows
that the Court of Appeals erred in concluding that a narrow reading
of the Corps' regulatory jurisdiction over wetlands was "necessary"
to avoid "a serious taking problem." 729 F.2d at 398. [ Footnote 4 ] We have held that, in
general,

															"[e]quitable relief is not available to enjoin an alleged taking
of private property for a public use, duly authorized by law, Page 474 U. S. 128 when a suit for compensation can be brought against the
sovereign subsequent to a taking." Ruckelshaus v. Monsanto Co., 467 U.
S. 986 , 467 U. S.
1016 (1984) (footnote omitted). This maxim rests on the
principle that, so long as compensation is available for those
whose property is in fact taken, the governmental action is not
unconstitutional. Williamson County, supra, at 473 U. S.
194 -195. For precisely the same reason, the possibility
that the application of a regulatory program may in some instances
result in the taking of individual pieces of property is no
justification for the use of narrowing constructions to curtail the
program if compensation will, in any event, be available in those
cases where a taking has occurred. Under such circumstances,
adoption of a narrowing construction does not constitute avoidance
of a constitutional difficulty, cf. Ashwander v. TVA, 297 U. S. 288 , 297 U. S.
341 -356 (1936) (Brandeis, J., concurring); it merely
frustrates permissible applications of a statute or regulation.
[ Footnote 5 ] Because 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, see Ruckelshaus v. Monsanto
Co., supra, at 467 U. S.
1017 , is available to provide compensation for takings
that may result from the Corps' exercise of jurisdiction over
wetlands, the Court of Appeals' fears that application of the
Corps' permit program might result in a taking did not justify the
court in adopting a Page 474 U. S. 129 more limited view of the Corps' authority than the terms of the
relevant regulation might otherwise support. [ Footnote 6 ] III Purged of its spurious constitutional overtones, the question
whether the regulation at issue requires respondent to obtain a
permit before filling its property is an easy one. The regulation
extends the Corps' authority under § 404 to all wetlands adjacent
to navigable or interstate waters and their tributaries. Wetlands,
in turn, are defined as lands 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."

															33 CFR § 323.2(c) (195) (emphasis added). The plain language of
the regulation refutes the Court of Appeals' conclusion that
inundation or "frequent flooding" by the adjacent body of water is
a sine qua non of a wetland under the regulation. Indeed,
the regulation could hardly state more clearly that saturation by
either surface or ground water is sufficient to bring an area
within the category of wetlands, provided that Page 474 U. S. 130 the saturation is sufficient to, and does, support wetland
vegetation. The history of the regulation underscores the absence
of any requirement of inundation. The interim final regulation that
the current regulation replaced explicitly included a requirement
of "periodi[c] inundation." 33 CFR § 209.120(d)(2)(h) (1976). In
deleting the reference to "periodic inundation" from the regulation
as finally promulgated, the Corps explained that it was repudiating
the interpretation of that language "as requiring inundation over a
record period of years." 42 Fed.Reg. 37128 (1977). In fashioning
its own requirement of "frequent flooding" the Court of Appeals
improperly reintroduced into the regulation precisely what the
Corps had excised. [ Footnote 7 ]
Without the nonexistent requirement of frequent flooding,the
regulatory definition of adjacent wetlands covers the property
here. The District Court found that respondent's property was
"characterized by the presence of vegetation that requires
saturated soil conditions for growth and reproduction," Page 474 U. S. 131 App. to Pet. for Cert. 24a, and that the source of the saturated
soil conditions on the property was groundwater. There is no
plausible suggestion that these findings are clearly erroneous, and
they plainly bring the property within the category of wetlands as
defined by the current regulation. In addition, the court found
that the wetland located on respondent's property was adjacent to a
body of navigable water, since the area characterized by saturated
soil conditions and wetland vegetation extended beyond the boundary
of respondent's property to Black Creek, a navigable waterway.
Again, the court's finding is not clearly erroneous. Together,
these findings establish that respondent's property is a wetland
adjacent to a navigable waterway. Hence, it is part of the "waters
of the United States" as defined by 33 CFR § 323.2 (1985), and if
the regulation itself is valid as a construction of the term
"waters of the United States" as used in the Clean Water Act, a
question which we now address, the property falls within the scope
of the Corps' jurisdiction over "navigable waters" under § 404 of
the Act. IV A An agency's construction of a statute it is charged with
enforcing is entitled to deference if it is reasonable and not in
conflict with the expressed intent of Congress. Chemical
Manufacturers Assn. v. Natural Resources Defense Council,
Inc., 470 U. S. 116 , 470 U. S. 125 (1985); Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc. , 467 U. S. 837 , 467 U. S.
842 -845 (1984). Accordingly, our review is limited to
the question whether it is reasonable, in light of the language,
policies, and legislative history of the Act, for the Corps to
exercise jurisdiction over wetlands adjacent to, but not regularly
flooded by, rivers, streams, and other hydrographic features more
conventionally identifiable as "waters." [ Footnote 8 ] Page 474 U. S. 132 On a purely linguistic level, it may appear unreasonable to
classify "lands," wet or otherwise, as "waters." Such a simplistic
response, however, does justice neither to the problem faced by the
Corps in defining the scope of its authority under§ 404(a) nor to
the realities of the problem of water pollution that the Clean
Water Act was intended to combat. In determining the limits of its
power to regulate discharges under the Act, the Corps must
necessarily choose some point at which water ends and land begins.
Our common experience tells us that this is often no easy task: the
transition from water to solid ground is not necessarily or even
typically an abrupt one. Rather, between open waters and dry land
may lie shallows, marshes, mudflats, swamps, bogs -- in short, a
huge array of areas that are not wholly aquatic but nevertheless
fall far short of being dry land. Where on this continuum to find
the limit of "waters" is far from obvious. Faced with such a
problem of defining the bounds of its regulatory authority, an
agency may appropriately look to the legislative history and
underlying policies of its statutory grants of authority. Neither
of these sources provides unambiguous guidance for the Corps in
this case, but together they do support the reasonableness of the
Corps' approach of defining adjacent wetlands as "waters" within
the meaning of§ 404(a). Section 404 originated as part of the
Federal Water Pollution Control Act Amendments of 1972, which
constituted a comprehensive legislative attempt "to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters." CWA § 101, 33 U.S.C. § 1251. This objective
incorporated a broad, systemic view of the goal of maintaining and
improving water quality: as the House Report on the legislation put
it, "the word integrity' . . . refers to a condition in which
the natural structure and function of ecosystems [are] maintained."
H.R.Rep. No. 92911, p. 76(1972). Protection of aquatic ecosystems,
Congress recognized, Page 474 U. S.
133 demanded broad federal authority to control pollution, for
"[w]ater moves in hydrologic cycles, and it is essential that
discharge of pollutants be controlled at the source." S.Rep.No.
92414, p. 77 (1972). In keeping with these views, Congress chose to
define the waters covered by the Act broadly. Although the Act
prohibits discharges into "navigable waters," see CWA §§
301(a), 404(a), 502(12), 33 U.S.C. §§ 1311(a), 1344(a), 1362(12),
the Act's definition of "navigable waters" as "the waters of the
United States" makes it clear that the term"navigable" as used in
the Act is of limited import. In adopting this definition of
"navigable waters," Congress evidently intended to repudiate limits
that had been placed on federal regulation by earlier water
pollution control statutes, and to exercise its powers under the
Commerce Clause to regulate at least some waters that would not be
deemed "navigable" under the classical understanding of that term. See S.Conf.Rep. No. 921236, p. 144 (1972); 118 Cong.Rec.
33756-33757(1972) (statement of Rep. Dingell). Of course, it is one
thing to recognize that Congress intended to allow regulation of
waters that might not satisfy traditional tests of navigability; it
is another to assert that Congress intended to abandon traditional
notions of "waters" and include in that term "wetlands" as well.
Nonetheless, the evident breadth of congressional concern for
protection of water quality and aquatic ecosystems suggests that it
is reasonable for the Corps to interpret the term "waters" to
encompass wetlands adjacent to waters as more conventionally
defined. Following the lead of the Environmental Protection Agency, see 38 Fed.Reg. 10834 (1973), the Corps has determined
that wetlands adjacent to navigable waters do, as a general matter,
play a key role in protecting and enhancing water quality: "The regulation of activities that cause water pollution cannot
rely on . . . artificial lines . . . , but must focus on all waters
that together form the entire aquatic system. Page 474 U. S. 134 Water moves in hydrologic cycles, and the pollution of this part
of the aquatic system, regardless of whether it is above or below
an ordinary high water mark, or mean high tide line, will affect
the water quality of the other waters within that aquatic
system."

															"For this reason, the landward limit of Federal jurisdiction
under Section 404 must include any adjacent wetlands that form the
border of or are in reasonable proximity to other waters of the
United States, as these wetlands are part of this aquatic
system."

															42 Fed.Reg. 37128 (1977).

															We cannot say that the Corps' conclusion that adjacent wetlands
are inseparably bound up with the "waters" of the United States --
based as it is on the Corps' and EPA's technical expertise -- is
unreasonable. In view of the breadth of federal regulatory
authority contemplated by the Act itself and the inherent
difficulties of defining precise bounds to regulable waters, the
Corps' ecological judgment about the relationship between waters
and their adjacent wetlands provides an adequate basis for a legal
judgment that adjacent wetlands may be defined as waters under the
Act. This holds true even for wetlands that are not the result of
flooding or permeation by water having its source in adjacent
bodies of open water. The Corps has concluded that wetlands may
affect the water quality of adjacent lakes, rivers, and streams
even when the waters of those bodies do not actually inundate the
wetlands. For example, wetlands that are not flooded by adjacent
waters may still tend to drain into those waters. In such
circumstances, the Corps has concluded that wetlands may serve to
filter and purify water draining into adjacent bodies of water, see 33 CFR§ 320.4(b)(2)(vii) (1985), and to slow the flow
of surface runoff into lakes, rivers, and streams, and thus prevent
flooding and erosion, see §§ 320.4(b)(2)(iv) and (v). In
addition, adjacent wetlands may

															"serve significant natural biological functions, including food
chain production, general habitat, and nesting, Page 474 U. S. 135 spawning, rearing and resting sites for aquatic . . .
species."

															§ 320.4(b)(2)(i). In short, the Corps has concluded that
wetlands adjacent to lakes, rivers, streams, and other bodies of
water may function as integral parts of the aquatic environment
even when the moisture creating the wetlands does not find its
source in the adjacent bodies of water. Again, we cannot say that
the Corps' judgment on these matters is unreasonable, and we
therefore conclude that a definition of "waters of the United
States" encompassing all wetlands adjacent to other bodies of water
over which the Corps has jurisdiction is a permissible
interpretation of the Act. Because respondent's property is part of
a wetland that actually abuts on a navigable waterway, respondent
was required to have a permit in this case. [ Footnote 9 ] B Following promulgation of the Corps' interim final regulations
in 1975, the Corps' assertion of authority under § 404 over waters
not actually navigable engendered some congressional opposition.
The controversy came to a head during Congress' consideration of
the Clean Water Act of 1977, a major piece of legislation aimed at
achieving "interim improvements within the existing framework" of
the Clean Water Act. H.R.Rep. No. 95139, pp. 1-2 (1977). In the Page 474 U. S. 136 end, however, as we shall explain, Congress acquiesced in the
administrative construction.

															Critics of the Corps' permit program attempted to insert
limitations on the Corps' § 404 jurisdiction into the 1977
legislation: the House bill as reported out of committee proposed a
redefinition of "navigable waters" that would have limited the
Corps' authority under § 404 to waters navigable in fact and their
adjacent wetlands (defined as wetlands periodically inundated by
contiguous navigable waters). H.R. 3199, 95th Cong., 1st Sess., §
16 (1977). The bill reported by the Senate Committee on Environment
and Public Works, by contrast, contained no redefinition of the
scope of the "navigable waters" covered by § 404, and dealt with
the perceived problem of overregulation by the Corps by exempting
certain activities (primarily agricultural) from the permit
requirement, and by providing for assumption of some of the Corps'
regulatory duties by federally approved state programs. S.1952,
95th Cong., 1st Sess., § 49(b) (1977). On the floor of the Senate,
however, an amendment was proposed limiting the scope of "navigable
waters" along the lines set forth in the House bill. 123 Cong.Rec.
26710-26711 (1977).

															In both Chambers, debate on the proposals to narrow the
definition of navigable waters centered largely on the issue of
wetlands preservation. See id. at 10426-10432 (House
debate); id. at 26710-26729 (Senate debate). Proponents of
a more limited § 404 jurisdiction contended that the Corps'
assertion of jurisdiction over wetlands and other
nonnavigable"waters" had far exceeded what Congress had intended in
enacting § 404. Opponents of the proposed changes argued that a
narrower definition of "navigable waters" for purposes of § 404
would exclude vast stretches of crucial wetlands from the Corps'
jurisdiction, with detrimental effects on wetlands ecosystems,
water quality, and the aquatic environment generally. The debate,
particularly in the Senate, was lengthy. In the House, the debate
ended with the adoption of a narrowed definition of "waters"; but
in the Senate the limiting Page 474 U. S. 137 amendment was defeated and the old definition retained. The
Conference Committee adopted the Senate's approach: efforts to
narrow the definition of "waters" were abandoned; the legislation
as ultimately passed, in the words of Senator Baker, "retain[ed]
the comprehensive jurisdiction over the Nation's waters exercised
in the 1972 Federal Water Pollution Control Act." [ Footnote 10 ]

															The significance of Congress' treatment of the Corps' § 404
jurisdiction in its consideration of the Clean Water Act of 1977 is
twofold. First, the scope of the Corps' asserted jurisdiction over
wetlands was specifically brought to Congress' attention, and
Congress rejected measures designed to curb the Corps'
jurisdiction, in large part because of its concern that protection
of wetlands would be unduly hampered by a narrowed definition of
"navigable waters." Although we are chary of attributing
significance to Congress' failure to act, a refusal by Congress to
overrule an agency's construction of legislation is at least some
evidence of the reasonableness of that construction, particularly
where the administrative construction has been brought to Congress'
attention through legislation specifically designed to supplant it. See Bob Jones University v. United States, 461 U.
S. 574 , 461 U. S.
599 -601 (1983); United States v. Rutherford, 442 U. S. 544 , 442 U. S. 554 ,
and n. 10 (1979).

															Second, it is notable that even those who would have restricted
the reach of the Corps' jurisdiction would have done so not by
removing wetlands altogether from the definition of "waters of the
United States," but only by restricting the scope of "navigable
waters" under § 404 to waters navigable in fact and their
adjacent wetlands. In amending the definition of "navigable
waters" for purposes of § 404 only, the backers of the House bill
would have left intact the existing definition of "navigable
waters" for purposes of § 301 of the Page 474 U. S. 138 Act, which generally prohibits discharges of pollutants into
navigable waters. As the House Report explained: " Navigable
waters,' as used in section 301, includes all of the waters of the
United States, including their adjacent wetlands." H.R.Rep. No.
95139, p. 24 (1977). Thus, even those who thought that the Corps'
existing authority under § 404 was too broad recognized (1) that
the definition of "navigable waters" then in force for both § 301
and § 404 was reasonably interpreted to include adjacent wetlands,
(2) that the water quality concerns of the Clean Water Act demanded
regulation of at least some discharges into wetlands, and (3) that
whatever jurisdiction the Corps would retain over discharges of
fill material after passage of the 1977 legislation should extend
to discharges into wetlands adjacent to any waters over which the
Corps retained jurisdiction. These views provide additional support
for a conclusion that Congress in 1977 acquiesced in the Corps'
definition of waters as including adjacent wetlands. Two features actually included in the legislation that Congress
enacted in 1977 also support the view that the Act authorizes the
Corps to regulate discharges into wetlands. First, in amending §
404 to allow federally approved state permit programs to supplant
regulation by the Corps of certain discharges of fill material,
Congress provided that the States would not be permitted to
supersede the Corps' jurisdiction to regulate discharges into
actually navigable waters and waters subject to the ebb and flow of
the tide, "including wetlands adjacent thereto." CWA § 404(g)(1),
33 U.S.C.§ 1344(g)(1). Here, then, Congress expressly stated that
the term "waters" included adjacent wetlands. [ Footnote 11 ] Second, the Page 474 U. S. 139 1977 Act authorized an appropriation of $6 million for
completion by the Department of Interior of a "National Wetlands
Inventory" to assist the States "in the development and operation
of programs under this Act." CWA § 208(i)(2), 33U.S.C. §
1288(i)(2). The enactment of this provision reflects congressional
recognition that wetlands are a concern of the Clean Water Act, and
supports the conclusion that, in defining the waters covered by the
Act to include wetlands, the Corps is "implementing congressional
policy, rather than embarking on a frolic of its own." Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367 , 395 U. S. 375 (1969). C We are thus persuaded that 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 fill material into wetlands adjacent to the "waters of
the United States." The regulation in which the Corps has embodied
this interpretation, by its terms, includes the wetlands on
respondent's property within the class of waters that may not be
filled without a permit; and, as we have seen, there is no reason
to interpret the regulation more narrowly than its terms would
indicate. Accordingly, the judgment of the Court of Appeals is Reversed. [ Footnote 1 ]

															With respect to certain waters, the Corps' authority may be
transferred to States that have devised federally approved permit
programs. CWA § 404(g), as added, 91 Stat. 1600, 33 U.S.C. §
1344(g). Absent such an approved program, the Corps retains
jurisdiction under § 404 over all "waters of the United
States."

															[ Footnote 2 ]

															The regulations also cover certain wetlands not necessarily
adjacent to other waters. See 33 CFR §§ 323.2(a)(2) and
(3) (1985). These provisions are not now before us.

															[ Footnote 3 ]

															In denying the Government's petition for rehearing, the panel
reiterated somewhat more strongly its belief that the Corps'
construction of its regulation was "overbroad and inconsistent with
the language of the Act." 729 F.2d at 401.

															[ Footnote 4 ]

															Even were the Court of Appeals correct in concluding that a
narrowing construction of the regulation is necessary to avoid
takings of property through the application of the permit
requirement, the construction adopted which requires a showing of
frequent flooding before property may be classified as a wetland is
hardly tailored to the supposed difficulty. Whether the denial of a
permit would constitute a taking in any given case would depend
upon the effect of the denial on the owner's ability to put the
property to productive use. Whether the property was frequently
flooded would have no particular bearing on this question, for
overbroad regulation of even completely submerged property may
constitute a taking. See, e.g., Kaiser Aetna v. United
States, 444 U. S. 164 (1979). Indeed, it may be more likely that denying a permit to fill
frequently flooded property will prevent economically viable use of
the property than denying a permit to fill property that is wet but
not flooded. Of course, by excluding a large chunk of the Nation's
wetlands from the regulatory definition, the Court of Appeals'
construction might tend to limit the gross number of takings that
the permit program would otherwise entail, but the construction
adopted still bears an insufficiently precise relationship with the
problem it seeks to avoid.

															[ Footnote 5 ] United States v. Security Industrial Bank, 459 U. S.
70 (1982), in which we adopted a narrowing construction
of a statute to avoid a taking difficulty, is not to the contrary.
In that case, the problem was that there was a substantial argument
that retroactive application of a particular provision of the
Bankruptcy Code would in every case constitute a taking; the
solution was to avoid the difficulty by construing the statute to
apply only prospectively. Such an approach is sensible where it
appears that there is an identifiable class of cases in which
application of a statute will necessarily constitute a taking. As
we have observed, this is not such a case: there is no identifiable
set of instances in which mere application of the permit
requirement will necessarily or even probably constitute a taking.
The approach of adopting a limiting construction is thus
unwarranted.

															[ Footnote 6 ]

															Because the Corps has now denied respondent a permit to fill its
property, respondent may well have a ripe claim that a taking has
occurred. On the record before us, however, we have no basis for
evaluating this claim, because no evidence has been introduced that
bears on the question of the extent to which denial of a permit to
fill this property will prevent economically viable uses of the
property or frustrate reasonable investment-backed expectations. In
any event, this lawsuit is not the proper forum for resolving such
a dispute: if the Corps has indeed effectively taken respondent's
property, respondent's proper course is not to resist the Corps'
suit for enforcement by denying that the regulation covers the
property, but to initiate a suit for compensation in the Claims
Court. In so stating, of course, we do not rule that respondent
will be entitled to compensation for any temporary denial of use of
its property should the Corps ultimately relent and allow it to be
filled. We have not yet resolved the question whether compensation
is a constitutionally mandated remedy for "temporary regulatory
takings," see Williamson County Planning Comm'n v. Hamilton
Bank, 473 U. S. 172 (1985), and this case provides no occasion for deciding the
issue.

															[ Footnote 7 ]

															The Court of Appeals seems also to have rested its
frequent-flooding requirement on the language in the regulation
stating that wetlands encompass those areas that "under normal
circumstances do support" aquatic or semiaquatic vegetation. In the
preamble to the final regulation, the Corps explained that this
language was intended in part to exclude areas characterized by the
"abnormal presence of aquatic vegetation in a nonaquatic area." 42
Fed.Reg. 37128 (1977). Apparently, the Court of Appeals concluded
that the growth of wetlands vegetation in soils saturated by ground
water, rather than flooded by waters emanating from an adjacent
navigable water or its tributaries, was "abnormal" within the
meaning of the preamble. This interpretation is untenable in light
of the explicit statements in both the regulation and its preamble
that areas saturated by ground water can fall within the category
of wetlands. It would be nonsensical for the Corps to define
wetlands to include such areas and then, in the same sentence,
exclude them on the ground that the presence of wetland vegetation
in such areas was abnormal. Evidently, the Corps had something else
in mind when it referred to "abnormal" growth of wetlands
vegetation -- namely, the aberrational presence of such vegetation
in dry, upland areas.

															[ Footnote 8 ]

															We are not called upon to address the question of the authority
of the Corps to regulate discharges of fill material into wetlands
that are not adjacent to bodies of open water, see 33 CFR
§§ 323.2(a)(2) and (3) (1985), and we do not express any opinion on
that question.

															[ Footnote 9 ]

															Of course, it may well be that not every adjacent wetland is of
great importance to the environment of adjoining bodies of water.
But the existence of such cases does not seriously undermine the
Corps' decision to define all adjacent wetlands as "waters." If it
is reasonable for the Corps to conclude that, in the majority of
cases, adjacent wetlands have significant effects on water quality
and the aquatic ecosystem, its definition can stand. That the
definition may include some wetlands that are not significantly
intertwined with the ecosystem of adjacent waterways is of little
moment, for where it appears that a wetland covered by the Corps'
definition is, in fact, lacking in importance to the aquatic
environment, or where its importance is outweighed by other values
the Corps may always allow development of the wetland for other
uses simply by issuing a permit. See 33 CFR § 320.4(b)(4)
(1986).

															[ Footnote 10 ]

															123 Cong.Rec. 39209 (1977); see also id. at 39210
(statement of Sen. Wallop); id. at 39196 (statement of
Sen. Randolph); id. at 38950 (statement of Rep. Murphy); id. at 38994 (statement of Rep. Ambro).

															[ Footnote 11 ]

															To be sure, § 404(g)(1) does not conclusively determine the
construction to be placed on the use of the term "waters" elsewhere
in the Act (particularly in § 502(7), which contains the relevant
definition of "navigable waters"); however, in light of the fact
that the various provisions of the Act should be read in pari
materia, it does at least suggest strongly that the term
"waters," as used in the Act, does not necessarily exclude
"wetlands."

Summary: The Clean Water Act prohibits discharging dredged or fill materials into "navigable waters" without a permit from the Army Corps of Engineers. The Corps defined "navigable waters" to include adjacent wetlands, including those saturated by groundwater. The Supreme Court upheld the Corps' jurisdiction over adjacent wetlands, rejecting arguments that a narrow reading was needed to avoid takings without compensation. The Court emphasized that permit requirements and denials don't necessarily constitute takings, and compensation is available under the Tucker Act if needed. The Court also affirmed the District Court's findings that the property in question was within the Corps' jurisdiction due to its wetland characteristics and proximity to navigable waters.