United States v. Riverside Bayview Homes, Inc.: Mountain or Molehill?

James L. Conner II

Editors' summary: Federal Water Polution Control Act § 404 gives the Army Corps of Engineers broad jurisdiction to control development of wetlands. In United States v. Riverside Bayview Homes, Inc., the Sixth Circuit apparently drastically curtailed the Corps' jurisdiction, ruling that a parcel not frequently inundated by navigable waters was outside the Corps' overview. This Comment takes a close look at the opinion and its apparent anomalies, and concludes that the court's odd approach leaves Corps jurisdiction over many types of wetlands intact. The court did not intend to, and did not, rule on jurisdiction over wetlands caused by groundwater saturation. Though the decision is hardly harmless, it is neither an invalidation of the wetlands definition nor a radical curtailment of Corps wetlands jurisdiction.

[14 ELR 10333]

On June 8 the Sixth Circuit denied a motion for rehearing en banc of its March 7 decision in United States v. Riverside Bayview Homes, Inc.¹ This let stand what is at first glance an anomalous and dangerous interpretation of § 404 of the Federal Water Pollution Control Act (FWPCA)² and the Army Corps of Engineers' regulations implementing it, greatly limitating the Act's coverage of sensitive wetlands. Because of this, the decision has caused much consternation among environmental groups.³ A close examination of the case, though, reveals that the Sixth Circuit was construing only a part of the Corps' definition of wetlands, and the case should not be read to restrict wetlands jurisdiction generally.

Wetlands Regulation under § 404

Section 301 of the FWPCA⁴ prohibits discharge of pollutants into navigable waters, except as permitted under other sections of the FWPCA, including § 404. "Pollutant" is defined broadly and includes materials used as fill in wetland areas.⁵ Section 404 allows the Corps to issue permits for the deposit of fill material in navigable waters.⁶ "Navigable waters" is defined as "the waters of the United States, including the territorial seas."⁷ Congress included no requirement of actual navigability in its definition, but simply and broadly defined the term apparently to include all waters in the country. In fact, the legislative history of the 1977 amendments to the Act shows unequivocal intent that the term be defined by the Corps and the courts as broadly as the constitutional constraints of the Commerce Clause would allow.⁸

The Corps' § 404 jurisdiction, then, is circumscribed by the definition of "navigable waters," or more directly, the definition of "waters of the United States." The Corps defines waters of the United States to include several categories: waters actually used for interstate commerce and waters subject to the ebb and flow of the tide; interstate waters; intrastate waters which touch on interstate commerce; impoundments of waters of the United States; tributaries of the above waters; the territorial seas; and wetlands adjacent to the above waters.⁹ Wetlands are included by name in three of the [14 ELR 10334] categories,¹⁰ and by implication in two more.¹¹ The Corps defines the term "wetland" in another subsection of the definitional regulation to mean "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. Wetlands generally include swamps, marshes, bogs and similar areas."¹²

The Riverside Bayview Litigation

Riverside Bayview involved a sixty acre parcel of land in Michigan lying about one mile from Lake St. Clair and about 200 feet from Black Creek and the man-made Savan Drain.¹³ The parcel was platted for subdivision in 1916 and storm drains and fire hydrants were installed at that time. Riverside Bayview Homes, Inc. (Riverside) bought the property in 1960. The parcel was farmed for some period during the interim. In 1976, Riverside began filling the parcel in preparation for development, despite not having a § 404 permit, and continued despite a cease and desist order from the Corps.¹⁴

The Corps accordingly sought, and on January 7, 1977 obtained, a temporary restraining order prohibiting further filling.¹⁵ On February 24, 1977, District Court Judge Kennedy issued an opinion granting a preliminary injunction against further filling on a large portion of the property that she determined to be wetlands under the FWPCA.¹⁶

Judge Kennedy based her wetlands determination on the Corps' regulation defining wetland that was in effect when the action was initially brought. That provision required that to be a wetland an area must be continguous to other navigable waters, be periodically inundated, and be "normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction."¹⁷ Judge Kennedy found that the parcel was continguous to Black Creek, a navigable water, and that the proper types of vegetation prevailed, though she found that this was due to the soil type and not due to any hydrologic effect from the lake and creek.¹⁸ She struggled with the "periodically inundated" requirement, since floodwaters had touched the property in only 14 of the prior 80 years and parts of the property had never been flooded. She finally found the portion of the property below the 575.5 foot elevation contour line to have been inundated six times, therefore periodically inundated, and therefore a wetland.¹⁹

By the time the case reached the Sixth Circuit on appeal, the present wetlands definition had been put in place by the Corps. Accordingly, the Sixth Circuit panel on appeal remanded the case for further examination in light of the new regulation. Judge Gilmore, on remand, found the new regulation "broader than its predecessor," and again held the area to be wetland.²⁰

The Sixth Circuit's Holding

On appeal again, the Sixth Circuit reversed Judge Gilmore. It held that "the words 'inundated at a frequency and duration sufficient to support, and that under normal circumstances [does] support [wetlands vegetation]' as set forth in the amended regulation … require frequent flooding by waters flowing from 'navigable waters' as defined in the Act."²¹

This interpretation of the wetlands definition is on its face contrary to the plain language of the regulation. First, the court simply misquotes the definition, leaving out the words "or saturated by surface or ground water" without so indicating in its quotation and without explanation elsewhere. Second, the court continues this error by interpreting the definition to require flooding, when the definition requires only saturation or flooding. Third, the court apparently requires that the flooding come from a navigable water, a requirement that also does not appear in the regulation. The court's holding would appear to exclude broad categories of wetlands from Corps regulation by construing them out of the Corps definition: wetlands that depend on groundwater saturation, isolated wetlands that depend on surface water runoff, and wetlands feeding rather than fed by adjacent navigable waters.

This is just the sort of effect that motivated the government to file the petition for rehearing, a group of environmental organizations to file an amicus brief in support of the petition,²² and a coalition of environmental [14 ELR 10335] groups to urge the Solicitor General to petition the Supreme Court for certiorari.²³ These entities have seen the decision as radically limiting the Corps' § 404 jurisdiction.²⁴ Indeed, though the court's decision actually only construes a definition, its effect is jurisdictional. Further, there is a strong jurisdictional tone to the opinion.²⁵ For example, the court spent two paragraphs at one point wondering "how far away from 'navigable waters' Congress contemplated that the regulations under the Act could drift."²⁶ But, despite the anti-broad-jurisdiction dicta there and elsewhere throughout the opinion, the court never held that the Corps exceeded its jurisdiction under either the statute or the Constitution. Rather, the court held that under the Corps' wetlands definition the Riverside property is not a wetland. The court did not invalidate the wetland definition. The court did not invalidate the Corps' regulations delineating its jurisdiction. In fact, the court made no reference to the Corps' jurisdictional regulations; other than the definition of wetland, no current Corps regulation was cited by the court.²⁷ So despite the strong jurisdictional overtones of the opinion, and despite the fact that the effect of the holding was to remove Corps jurisdiction over the Riverside property, there was no broad explicitly jurisdictional holding.

This approach of the court — narrowing the wetlands definition without touching the jurisdictional rules — limits the impact of the holding. The court has taken a definition designed to identify actual wetlands and converted it wholesale into a legal term-of-art definition, so that, like "navigable waters," "wetland" under § 404 would not mean what wetland means to the scientist or layman. That is, some areas that are clearly wetlands-infact would no longer be "wetlands." Since the court did not limit the Corps' jurisdiction other than through its change in the wetlands definition, the Corps can still exert jurisdiction over these excluded areas if they are included under some name other than "wetlands" in its jurisdictional regulation. For example, § 323.2(a)(3) includes as waters of the United States "mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows … the use, degradation, or destruction of which could affect interstate or foreign commerce."²⁸ Since the court only decided what a wetland is, it in no way affected the inclusion of mudflats, sandflats, sloughs, wet meadows, or prairie potholes under this provision. Likewise, § 323.2(a)(5) includes tributaries of other waters of the United States.²⁹ Therefore, wet areas feeding rather than fed by navigable waters are arguably not excluded from Corps jurisdiction. Finally, § 323.2(a)(1) includes all waters subject to the ebb and flow of the tide,³⁰ which saves from possible exclusion vast coastal wet areas, though these would probably qualify as wetlands under the court's "frequently flooded" condition anyway.

A Second Look, or Mountain to Molehill

Although the above method of circumventing the court's holding³¹ preserves protection for a great many wetlands, it leaves the anomalous opinion unexplained. Fortunately, a careful exposition of the opinion and the intent of the court yields results just as encouraging for wetlands protection.

One cannot help but conclude from a careful reading of the opinion that the panel's intention was not to exclude saturation by groundwater from the definition of wetlands, but simply to require clearly that the wetlands vegetation on a parcel be caused by the wetness of the land — that it not be abnormal. The court saw two statements in the Corps' preamble to its present wetlands definition as being critical to interpreting the definition. The preamble states that the "abnormal presence of aquatic vegetation in a nonaquatic area would not be sufficient to include that area …."³² The court coupled this with the preamble's admonition to look at the aquatic system "as it exists, and not as it may have existed over a record period of years"³³ to form its guideline for interpreting the regulation:

The new regulation makes clear that it is the present occurrence of inundation or flooding sufficient to support wetlands vegetation, not the mere presence of such vegetation from some other cause, that determines whether a particular area is a wetland. Thus, as we understand it, the presence of inundation on the land "as it exists" now, sufficient to cause the growth of aquatic [14 ELR 10336] vegetation, is necessary to satisfy the wetlands definition. Neither inundation nor aquatic vegetation would be sufficient, standing alone, to bring a piece of land within the definition. Both must be present, and the latter must be caused by the former.

Were this not so, then areas which inexplicably support some species of aquatic vegetation, but which are not normally inundated, would fall within the wetlands definition. Such a perverse result could not have been what the Corps contemplated in promulgating the regulation. Indeed, as noted earlier, the Corps expressly adverted to the situation of "areas that are not aquatic but experience an abnormal presence of aquatic vegetation" and emphasized that such lands were not intended to be covered by the regulations.

Turning now to the facts as found by Judge Kennedy, and applying our interpretation of the new wetlands definition to those facts, we conclude that the Riverside land is not a wetland.³⁴

If one takes only the part of the definition of wetland quoted by the court and applies it to the facts the court describes as being before it, the decision changes in aspect from a radical bobtailing of Corps jurisdiction to exactly what the court describes it as being³⁵ — a somewhat narrow interpretation of the wetlands regulation using the Corps' interporetative guidelines for that regulation. If the growth of wetlands vegetation on the property is not caused by flooding of the property, then the court was correct in holding the Riverside property not a wetland under the court's portion of the regulation. And the court describes the facts before it in this regard as follows: "[Judge Kennedy] found that the source of this vegetation was the type of soil found on the property and not the few instances of flooding. The evidence supports her determination that the infrequent inundation caused by the adjacent navigable water, Black Creek, was not the cause of the wetland vegetation."³⁶

Although the court's application of the "as it exists" guideline is open to criticism,³⁷ it is certainly true, as the court found, that flooding "on four to six occasions in the eighty years of recorded history of the area … cannot fairly be said [to] describe the land [as frequently flooded] 'as it exists.'"³⁸ So though the court does interpret the wetland definition narrowly by use of the "as it exists" guideline³⁹ and by putting a heavy burden of proof of wetlands vegetation causation on the Corps,⁴⁰ its interpretation of the language it quotes hardly constitutes a repudiation of the wetlands definition or a wholesale truncating of Corps jurisdiction.

This analysis leaves unexplained, however, the court's use of only the inundation part of the definition. The key factor in understanding that anomaly is the realization that the court perceived itself as deciding only an inundation case. The wetlands definition interpreted in the district court opinion that the court relied on for factual determinations required inundation, with no mention of saturation or groundwater.⁴¹ Though the court spent at least two paragraphs analyzing the changes in the new regulations, nowhere in the opinion did the court explicitly recognize the new saturation language. The issue in district court had been inundation; the Sixth Circuit continued to focus on inundation — spending about a fifth of the opinion just setting out Judge Kennedy's determination as to periodic inundation; and the court never, explicitly at least, shifted gears to look at saturation. Though the court set out the present wetlands definition in full in its introduction, all three times that it purported to quote the definition in the course of its analysis it left out the saturation and groundwater language.⁴² Moreover, the court never explicitly held that saturation by groundwater is categorically insufficient for wetlands classification.⁴³

Itis unlikely that all of this was mere oversight. In fact, the court had a reasoned basis for construing only the inundation language: saturation was not before the court. There was no finding by the district court that the property was or was not saturated or that groundwater did or did not cause the growth of wetlands vegetation. Again, the question throughout was whether the flooding that took place was periodic, and whether it was the cause of the growth of aquatic vegetation.

Of course, one cannot ascertain with absolute certainty why the court ignored the saturation language in the definition nor understand why the court did not simply explain what it was doing. But certainly it is more reasonable to interpret the court as ignoring those words because the court perceived that saturation and groundwater were not before it than to assume that the judges were struck with a selective blindness that prevented their seeing the groundwater saturation language or that they were disingenuously trying to ignore away troublesome language. The unstated premise is often a stumbling block to effective communication, and here the unstated premise — that this was an inundation case and that the saturation and groundwater language was irrelevant — sent readers of the opinion sprawling and left the court apparently wondering what all the fuss is about.⁴⁴

[14 ELR 10337]

The court's ruling setting forth the sort of inundation it takes to make a wetland — "the words 'inundated at a frequency and duration sufficient to support, and that under normal circumstances [does] support [wetlands vegetation]' as set forth in the amended regulation … require frequent flooding….⁴⁵ — is both an indication of the court's intention and a symbol of the legal limitations of the holding. Given that there was not finding of saturation or lack thereof, that the court explicitly construed only the inundation language of the regulation, and that the court never expressly held that saturation by surface or groundWater is insufficient, any implication that saturation is insufficient for a wetlands determination is at most dicta and is better not read into the opinion at all. Similarly, the implications that the Corps' jurisdictional regulations exceed the authority granted by Congress and that wetlands must have some direct relation to traditional navigable waters to be waters of the United States⁴⁶ are merely dicta. As the Supreme Court has said, "broad language … unnecessary to the [c]ourt's decision … cannot be considered binding authority."⁴⁷

Conclusion

The Sixth Circuit's opinion in Riverside Bayview, despite broad jurisdictional language, interprets only the Corps' wetlands definition. For this reason, direct and literal application of the holding leaves several categories of wet areas unaffected: those subject to the ebb and flow of the tide; mudflats, sandflats, sloughs, prairie potholes, and wet meadows degradation of which could affect interstate commerce;⁴⁸ and wet areas that are tributaries of other waters of the United States. Further, the opinion decides only what sort of inundation it takes to make a wetland, namely, a situation of presently frequent flooding sufficient to be the cause of the aquatic vegetation in the purported wetland. The court did not hold that saturation is insufficient to make a wetland. Upon careful analysis, the jagged, ominous Himalayan visage of the decision dissolves away to reveal just a modest molehill.

1. 729 F.2d 391, 14 ELR 20365 (6th Cir. 1984), reh'g denied, 14 ELR 20617 (6th Cir. June 8, 1984).

2. 33 U.S.C. § 1344, ELR STAT 42142.

3. See infra notes 22-24 and accompanying test.

4. 33 U.S.C. § 1311(a), ELR STAT. 42123.

5. FWPCA § 502(6), 33 U.S.C. § 1362(6), ELR STAT. 42146.

6. 33 U.S.C. § 1344(a), ELR STAT. 42142.

7. FWPCA § 502(7), 33 U.S.C. § 1362(7), ELR STAT. 42146.

8. See the discussion of the legislative history in Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 914-15, 13 ELR 20942, 20950 (5th Cir. 1983).

9. (a) The term "waters of the United States" means: n1

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

(i) Which are or could be used by interstate or foreign travels [sic] for recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial purposes by industries in interstate commerce;

(4) All impoundments of waters otherwise defined as waters of the United States under this definition.

(5) Tributaries of waters identified in paragraphs (a)(1)-(4) of this section;

(6) The territorial sea;

(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section. Waste treatment systems, including treatment ponds or laboons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.

33 C.F.R. § 323.2(a), ELR REG. 46380.

1. The terminology used by the CWA is "navigable waters" which is defined in Section 502(7) of the Act as "waters of the United States including the territorial seas." For purposes of clarity, and to avoid confusion with other Corps of Engineers regulatory programs, the term "waters of the United States' is used throughout this regulation.

10. See supra note 9, §§ 323.2(a)(2), (3) & (7).

11. See supra note 9, §§ 323.2(a)(1) & (5).

12. 33 C.F.R. § 323.2(c), ELR REG. 46380.

13. United States v. Riverside Bayview Homes, Inc., 7 ELR 20445 (E.D. Mich. Feb. 24, 1977), remanded, 615 F.2d 1363 (6th Cir. 1980).

14. 729 F.2d at 393, 14 ELR at 20366.

15. See id.

16. 7 ELR 20445.

17. 40 Fed. Reg. 31324-25 (July 25, 1975) (formerly codified at 33 C.F.R. § 209.120(d)(2)(i)(h)).

18. 7 ELR at 20445.

19. Id. at 20447.

20. See 729 F.2d at 396, 14 ELR at 20368.

21. Id. at 398-99, 14 ELR at 20369.

22. Plaintiff's Petition for Rehearing, Riverside Bayview; Brief of Amici Curiae in Support of Petition for Rehearing, Riverside Bayview. (Both are available from ELR; see ELR PEND. LIT. 65820).

23. Letter from Jay Hair et al. to Rex E. Lee, Solicitor General (July 19, 1983).

24. See documents cited supra notes 22 & 23.

25. For example, the court in giving the statutory and regulatory background of the action said "[t]he Corps … developed regulations pursuant to the Act covering areas denominated as 'wetlands' as well as the congressionally specified 'navigable waters.'" 729 F.2d at 394, 14 ELR at 20367 (emphasis added). In its order denying rehearing, the court said petitioners would have "low lying land areas where water sometimes stands and where vegetation requiring moist conditions grows" "converted into 'navigable waters' by the court without regard to either their proximity to navigable waters …." United States v. Riverside Bayview Homes, Inc., 14 ELR 20617 (6th Cir. June 8, 1984). In quoting the old wetlands definition, the court added a "sic": "Freshwater wetlands … that are … adjacent to other [sic] navigable waters …." 729 F.2d at 394, 14 ELR at 20367. The examples could go on, see, e.g., infra text accompanying note 26. Clearly, the court was unable to accept that "navigable waters" has been given a non-literal meaning by Congress, the courts, and the Corps. See supra note 8.

26. 729 F.2d at 397, 14 ELR at 20369.

27. Nor did the court make clear that it understood how Corps jurisdiction over an area follows from an area's being denominated a wetland. More specifically, the court appeared to have overlooked the fact that under the regulations, wetlands themselves are waters of the United States and therefore navigable waters. See supra note 25.

28. 33 C.F.R. § 323.2(a)(3), ELR REG. 46380. See supra note 9.

29. See supra note 9.

30. Id.

31. If the analysis which follows is wrong and the court did intend a broad jurisdictional effect for its holding, use of the above method of circumventing such an effect would have the salutary effect of forcing the court to clarify its thinking and its writing and to drop its backhanded treatment of the issue. That is, when a challenge to an exercise of Corps jurisdiction based on the reasoning suggested reaches the court, in order for the court to achieve the broad jurisdictional effect it sought, it would have to invalidate the jurisdiction regulations themselves. Given the lack of basis for such a holding upon close and reasoned examination, the court might well realize the error of its anti-broad-jurisdiction predilection and remove its cloud from Corps jurisdiction completely.

32. 729 F.2d at 396, 14 ELR at 20368, quoting from 42 Fed. Reg. 37128 (July 19, 1977).

33. Id. at 395, 14 ELR at 20367, quoting from 42 Fed. Reg. 37128 (July 19, 1977).

34. Id. at 396, 14 ELR at 20368.

35. Id. at 396, 397, 14 ELR at 20368.

36. Id. at 396, 14 ELR at 20368.

37. For example, shouldn't the "as it exists" language be applied to the overall definition, rather than just one isolated part? That is, rather than is the area as it exists frequently flooded, does the area as it exists support wetlands vegetation because of inundation?

38. 729 F.2d at 396-97, 14 ELR at 20368.

39. See supra note 37.

40. The court concludes, 729 F.2d at 397, 14 ELR at 20368, that in "the absence of evidence that the property as it exists now is frequently flooded and that the flooding causes aquatic vegetation to grow there, the government's case is insufficient …." In note 3, id., the court criticizes the government's case on the ground that a government witness admitted that non-aquatic vegetation was growing on the property along with the aquatic vegetation.

41. 40 Fed. Reg. 31324-25 (July 25, 1975) (formerly codified at 33 C.F.R. § 209.120(d)(2)(i)(h)), quoted at 729 F.2d at 394, 14 ELR at 20367.

42. Three times, 729 F.2d at 396, 397, & 398, 14 ELR at 20368, 20368, & 20369, the court quoted the regulation, see supra text accompanying note 12, to say (with slight variations not relevant to the point): "'inundated at a frequency and duration sufficient to support and that under normal circumstances [does] support' wetlands vegetation." (brackets and bracketed material added by the court).

43. The closest the court came was when it said, directly floowing the holding quoted above, see supra text accompanying note 21: "The definition thus covers marshes, swamps, and bogs directly created by such waters, but not inland lowlying areas such as the one in question here that sometimes become saturated with water." 729 F.2d at 399, 14 ELR at 20369. This was the court's only reference to the property as saturated.

44. See United States v. Riverside Bayview Homes, Inc., 14 ELR 20617 (6th Cir. June 8, 1984) (denial of rehearing).

Additional indications that the court indeed intended, as asserted in this Comment, only a somewhat narrow interpretation of the regulation may be found in the court's constitutional argument for limiting the regulation. The court says it was necessary to construe the definition "somewhat narrowly … to avoid serious questions concerning the validity of the definition itself [under the Fifth Amendment Taking Clause]," clearly implying that it was not invalidating the regulation. 729 F.2d at 397, 14 ELR 20368. Further, the principole of statutory construction invoked by the court — that "the fact that one among alternative constructions would involve serious constitutional difficulties is reason to reject that interpretation in favor of another," 2A SUTHERLAND ON STATUTORY CONSTRUCTION § 45.11, at 33-34 (C. Sands ed. 1973) — justifies a narrow construction of the inundation requirement, but does not justify excising the clear groundwater inundation language. Again, interpreting the decision as broadly curtailing Corps jurisdiction by invalidating a portion of the regulation requires imputing disingenuousness to the court.

45. 729 F.2d at 298, 14 ELR at 20369.

46. Under the two jurisdictional rules that most broadly include wetlands (without requiring contiguity), the wetlands need have no relation to any other navigable water, much less the frequent flooding relationship required by the court. More generally, the Corps' regulation defines wetlands themselves as waters of the United States; to require that an area be flooded by water from a navigable water in order to be a water of the United States carries an assumption about the definition of water of the United States that is clearly contrary to the premises upon which the Corps' regulation is based, without a holding that the Corps' treatment of the term "waters of the United States" is contrary to law. Under the broad interpretation of the decision that this Comment argues is incorrect, the court would work a backhanded invalidation of a central concept in the Corps' jurisdictional scheme without ever addressing the jurisdictional regulation itself.

47. Kastigar v. United States, 406 U.S. 441, 454-55 (1982).

48. For an indication of how easily even isolated waters can meet the affecting-interstate-commerce requirement, see Utah v. Marsh, 14 ELR 20683 (10th Cir. Aug. 3, 1984) (isolated lake contained completely within borders of Utah and not capable of supporting interstate navigation subject to Commerce Clause regulation and Corps § 404 jurisdiction).