The Supreme Court Endorses a Broad Reading of Corps Wetland Jurisdiction Under FWPCA § 404

Kenneth L. Rosenbaum

Editors' Summary: This comment reviews the Supreme Court's reversal of the Sixth Circuit's decision in United States v. Riverside Bayview Homes, Inc., the controversial FWPCA wetlands jurisdiction case. The Court rejected the Sixth Circuit's argument that the jurisdiction must be narrowly construed in order to avoid potential takings of private property. Relying on the water quality and ecological purposes of the FWPCA, the Court upheld Army Corps of Engineers' regulations that broadly interpret FWPCA upheld Army Corps of Engineers' reglations that broadly interpret FWPCA jurisdiction over wetlands. The opinion falls in line with earlier opinions of the Burger Court rejecting the Takings Clause as a substantive limit on governmental powers and deferring to expert agency interpretations of controlling statutes. The broad reading of the FWPCA's purposes would support a broad § 404 regulatory program; however, some observers doubt that the current Corps leadership is interested in using § 404 as a wetlands protection tool.

[16 ELR 10008]

The Army Corps of Engineers' dredge and fill regulation program under § 404 of the Federal Water Pollution Control Act (FWPCA)¹ has generated its share of litigation, but until December 1985, it had never been the subject of a Supreme Court ruling. In December, the high Court ruled in United States v. Riverside Bayview Homes, Inc.,² a case construing the geographical reach of the Corps' jurisdiction over wetlands.

Proponents of wetlands conservation feared that a narrow construction of the Corps' jurisdiction could cripple the § 404 program as a wetlands protection tool. The Sixth Circuit, in the case below, had adopted a narrow construction.³ If the Supreme Court were to accept the Sixth Circuit's reasoning, the damage might be irreparable; at best, it would have to be mended in Congress, and Congress' recent track record on tackling tough environmental problems has been uneven.⁴

As it turned out, the fears were unwarranted. In a short, well-reasoned, and unanimous opinion, the Court reversed the Sixth Circuit and upheld the Corps' broad exercise of jurisdiction under § 404. The Court rejected the Sixth Circuit's reliance on takings law as a justification for narrowly construing the Corps' powers. And the Court acknowledged that the FWPCA aims to ensure ecosystem integrity as well as water quality, laying the foundation for future defenses of a broad § 404 program.

The Case⁵

Riverside involved a low-lying property bordering a stream that flowed into nearby Lake St. Clair, in Michigan. In 1976 the owners began to fill the land in preparation for development. The Corps claimed jurisdiction and ordered filling to cease; the owners continued, and eventually the government sued to enjoin the filling. The key issue in the suit was whether the land actually fell within the Corps' jurisdiction. The district court, applying the Corps' 1975 regulations covering wetlands "that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions," held that the owners needed a Corps permit to fill part of the land.⁶

Because the Corps' redefined its jurisdiction in 1977, the Sixth Circuit remanded the case for the district court to apply the new regulations.⁷ The district court, applying regulations covering areas "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," upheld its order, and a second appeal followed.⁸

In the second appeal, the Sixth Circuit reversed the district court, holding that the Corps lacked jurisdiction over the site. The court concluded that the Corps' regulations must be construed "somewhat narrowly in order to avoid serious questions concerning the validity of the regulation under the Act."⁹ Citing only the language of the statute, and without examining the legislative history, the court declared that it was not clear that Congress intended the Corps to "subject to the permit requirement inland property which is rarely if ever flooded."¹⁰ The court further reasoned that to prohibit development of such property would raise "a serious taking problem under the fifth amendment."¹¹ Therefore, the court ruled that the Corps [16 ELR 10009] only had jurisdiction over wetlands frequently flooded by waters flowing from "navigable waters" as defined in the FWPCA. Since most of the contested property had been flooded only four to six times in 80 years, and since no evidence suggested that the vegetation there was dependent on water from floods, the court held the property to be outside the Corps' control.

The Supreme Court's Opinion

Justice White, writing for a unanimous Court, launched into the merits of the case by noting that the issue was primarily one of statutory and regulatory construction, although the Sixth Circuit had given the case a constitutional twist.¹² Addressing that twist, the Court stated that the basic test for a regulatory taking was whether a law "does not substantially advance legitimate state interests … or denies an owner economically viable use of his land,¹³ however, "mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking."¹⁴ The Sixth Circuit's narrow reading of the Corps' jurisdictional reach was therefore unnecessary.Further, equitable relief is unavailable in takings cases if the landowner can seek relief through a suit for compensation; analogously, a narrow construction of jurisdiction is unjustified if compensation is ultimately available through a Tucker Act¹⁵ suit. The Court distinguished United States v. Security Industrial Bank,¹⁶ a 1982 case in which it declined to retroactively apply a section of the bankruptcy code because of the takings that would result; in that case a retroactive construction would have worked a taking every time the law was applied.¹⁷

After disposing of the "spurious constitutional overtones,"¹⁸ the Court easily concluded that the plain language of the Corps' regulations does not require that property be periodically inundated to be wetlands. The regulations expressly include wetlands dependent on groundwater. Since the district court found that the properly had wetlands vegetation and soil saturated from groundwater, it properly concluded that the Riverside property was a wetland under the Corps' regulations.

The Court next examined the validity of those regulations. It began by reciting the byword of the Court's administrative law rulings: "[a]n 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."¹⁹ The FWPCA refers simply to "waters of the United States,"²⁰ and the Court noted that a slippery slope exists between open water on one hand and dry land on the other, with swamps, marshes, mudflats, and bogs in between. Given this ambiguity, the Corps would be justified in turning to legislative history and underlying statutory policy to draw the jurisdictional line.

Examining these sources, the Court held that Congress wished to improve water quality and protect the integrity of aquatic ecosystems. To that end, Congress recognized that water moves in broad hydrologic cycles and called for broad administrative jurisdiction.

The Corps' expert opinion, put forth in the preamble to its regulations, justified including adjacent wetlands in the category of "waters" to achieve Congress' goals. The Court concluded that "[i]n 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."²¹ Further, the Court noted that the Act does not require that regulated wetlands be created by flooding or seepage from open water. The Corps reasonably concluded that the Act empowers it to protect wetlands that filter water draining into adjacent water bodies, wetlands that serve flood or erosion control functions, and wetlands that "may 'serve significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic … species.'"²² Finally, the Court noted that in 1977 Congress considered at length and ultimately rejected amendments that would have eliminated jurisdiction over many wetlands; instead it funded a National Wetlands Inventory and, in language added to § 404 allowing state administration of the program, it expressly reserved jurisdiction over certain wetlands to the Corps. Based on all this, the Court concluded that the Corps' regulations were reasonable.

Discussion

The speed,²³ unanimity, and strength of the Riverside opinion surprised many observers. Environmental causes have often suffered defeat before the Burger Court.²⁴ Environmentalists have become wary, suspecting the Court of being anti-environment. But what seems to be anti-environmentalism is only this Court's brand of judicial conservatism.²⁵ [16 ELR 10010] In fact, the Court is only anti-environment insofar as it declines to recognize the environmental subject matter of a case as reason to invoke different reasoning or rules of law. Though Riverside may seem to stand out from recent environmental decisions, it actually is consistent with the Court's recent conservative holdings on takings and administrative law.

The Court has consistently refused to expand the takings clause as a substantive limit on governmental power.For example, in Ruckelshaus v. Monsanto Co.,²⁶ the Court held that although the data use and disclosure provisions of the Federal Insecticide, Fungicide, and Rodenticide Act may deprive pesticide manufacturers of their trade secret property interests in their data, the provisions were constitutional since the manufacturers could seek after-the-fact compensation for their losses. On a different takings issue, in Hawaii Housing Authority v. Midkiff,²⁷ the Court acknowledged that the Fifth Amendment prevents governments from taking land for private use, even if the original owner is compensated, but it gave great deference to a legislature's finding of public purpose and upheld a law designed to redistribute residential property ownership from landlords to tenants. These decisions are in philosophical accord with the Court's refusal to use the threat of a compensable taking as an excuse to restrict the powers of an agency.

Similarly, the Court's deference to the Corps' interpretation of the FWPCA is completely in line with prior decisions granting great deference to an agency's interpretation of its statutory authority or in fact to any exercise of the agency's special expertise.²⁸ Thus, the very principle that cost the environmental petitioners in several prior cases has carried them in Riverside.²⁹

Implications for Takings Law

Riverside eliminates the takings defense as an argument for equitable limits to wetlands regulation and would be noteworthy for this reason alone.³⁰ But the case also has implications outside the area of wetlands regulation.

The Court stated in cler, unqualified terms that "the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking."³¹ Whenever a statutory scheme including permits or variances comes before a court, Riverside will prevent the court from invoking a takings argument to strike down the law on its face or to narrowly construe the law's fundamental reach. This aspect of Riverside should apply to state and local regulations as well as to federal,³² and to intangible and personal property as well as to real.³³

Also, the Court held that as long as some mechanism for just compensation exists, courts should not enjoin government actions that take property.³⁴ This holding echoes the recent Monsanto case³⁵ and illustrates the Court's general endorsement of "inverse condemnation" actions as relief for takings.³⁶ This aspect of the decision may actually discourage lawmakers and regulators from trying to extend their jurisdictional reach. A regulator, whether a small town zoning board or a federal agency, may not be able to afford to reimburse property owners if a court holds its regulation to work a taking. The regulator would much prefer that property owners receive equitable relief, especially if, under an extension of the Riverside rationale, the court limits itself to enjoining enforcement of the law where it works a taking and does not strike the law in its entirety. The possibility of an inverse condemnation award may chill regulators more strongly than the possibility of a limited injunction.

Implications for Wetlands Regulation

Riverside vindicates many of the claims that proponents of a strong § 404 program have been making since the program's birth. The opinion acknowledges that Congress intended FWPCA jurisdiction to go far beyond the traditional concept of navigable waters, that Congress had both water quality and ecosystem integrity in mind, and that Congress intended the Act to protect whole aquatic systems. The opinion should silence claims that § 404 is not a wetlands provision.³⁷

The Court embraced an enlightened, hydrologically reasonable definition of wetlands. The Sixth Circuit had demanded that the Corps' jurisdiction be limited to wetlands that are actuallya part of a navigable waterway, even if only at flood time. This requirement would have excluded wetlands draining into other waters or wetlands connected to open waters through groundwater. Although the requirement bears some relation to traditional, navigation-based concepts of federal jurisdiction over rivers, it makes [16 ELR 10011] no sense for water quality and aquatic ecosystem protection. The Supreme Court, looking to the policy behind the FWPCA, only required that the wetlands be hydrologically or ecologically bound up with other regulated waters.

The Supreme Court has not laid to rest all questions about the Corps' jurisdiction, but its discussion of the legislative history and purposes of the Act will be useful guidance to other courts addressing such questions. For example, the Court expressly reserved ruling on whether "isolated" wetlands properly come within the Corps' jurisdiction.³⁸ However, the Court's hydrological and ecological rationale suggests that they do. Many wetlands not adjacent to open water are nonetheless hydrologically connected to it, and their destruction or pollution will eventually affect the quality of the connected waters. And even those wetlands that are hydrologically isolated from other waters are ecologically connected, serving as feeding or breeding grounds for migratory birds that are key components of aquatic ecosystems.³⁹ The connection may seem small, but cumulative loss of small, isolated wetlands, such as the prairie potholes of the northern Great Plains or the playa lakes of the Great Basin, could have a devastating effect on migratory shorebirds that are part of the ecological balance at other wetland sites.⁴⁰

The Court's opinion should also give guidance to courts addressing the scope of activities governed by § 404. Just as the purposes of the Act require "waters" to be broadly construed, so they also require "discharge of dredged or fill materials" to be broadly construed. Riverside thus gives indirect support to rulings such as Avoyelles Sportsmen's League v. Marsh,⁴¹ where the Fifth Circuit construed § 404 to cover clearing and leveling of lower Mississippi Valley bottomlands, and United States v. M.C.C. of Florida, Inc.,⁴² where the Eleventh Circuit construed § 404 to cover destruction of shallow sea-bottom habitats by tug boat propellers. The Riverside approach also supports narrow construction of the exemptions to § 404 for normal farming and silvicultural activities⁴³ and broad construction of the Corps' power to deny permits on ecological grounds.⁴⁴

While the Court's reading of the purposes of the FWPCA supports a broad § 404 program, the Court's healthy deference to administrative interpretation of the statute puts the power to maintain that broad program in the hands of the agencies that implement § 404, the Corps and the Environmental Protection Agency.⁴⁵ This power is a sword that can cut two ways. On the same day that the Court decided Riverside, the Senate confirmed the nomination of Robert Dawson to be Assitant Secretary of the Army for Civil Works, in charge of Corps construction projects and the § 404 program.⁴⁶ Environmental groups and several of the Senate's strongest proponents of wetlands protection had opposed Dawson's confirmation, believing him to be out of step with the wetlands protection aspects of the program.⁴⁷ Though Dawson's control over the § 404 program is not absolute,⁴⁸ he will have considerable influence over how effectively the program conserves the nation's wetlands. If Dawson seeks to weaken the Corps' wetlands regulations,⁴⁹ the call for deference in Riverside could impede judicial challenges. On the other hand, a court could easily reject any changes that do not respect the ecological, wetland-conserving purposes of the FWPCA recognized in Riverside.

Conclusion

Sometimes the best surprise is no surprise. The Court's [16 ELR 10012] decision in Riverside held no surprises about the wetlands protection jurisdiction of the Corps. In fact, for those who have long seen § 404 as a mandate to conserve the nation's wetlands, Riverside was a confirmation of long-held beliefs. The Corps is in a better position than ever to achieve Congress' purposes under § 404 — if it chooses to do so.

1. FWPCA § 404, 33 U.S.C. § 1344, ELR STAT. 42142.

2. 16 ELR 20086 (U.S. Dec. 4, 1895).

3. United States v. Riverside Bayview Homes, Inc., 729 F.2d 391, 14 ELR 20365 (6th Cir. 1984), reh'g denied, 14 ELR 20617 (6th Cir. June 8, 1984), rev'd, 16 ELR 20086 (U.S. Dec. 4, 1985). The Sixth Circuit opinions are analyzed in Comment, United States v. Riverside Bayview Homes, Inc.: Mountain or Molehill?, 14 ELR 10333 (1984) and Jackson and Armitage, United States v. Riverside Bayview Homes: A Questionable Interpretation of § 404, 14 ELR 10366 (1984).

4. Witness Congress' inability to address acid rain; to reauthorize the Superfund tax before it expired; or to pass reauthorizations of the Clean Air Act or the FWPCA. See generally Comment, Congress in 1984: A Mixed Bag, 14 ELR 10449 (1984).

5. The facts of the case and the Sixth Circuit's opinion have twice been discussed in these pages. See Comment and Jackson and Armitage, supra note 3. Only the barest of facts are presented again here.

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

7. United States v. Riverside Bayview Homes, Inc., 615 F.2d 1363 (6th Cir. 1980).

8. See 729 F.2d 391, 396, 14 ELR 20365, 20368 (6th Cir. 1984).

9. 729 F.2d at 397, 14 ELR at 20368.

10. 729 F.2d at 397-98, 14 ELR at 20369.

11. 729 F.2d at 398, 14 ELR at 20369. The court held the situation analogous to the facts in Kaiser Aetna v. United States, 444 U.S. 164, 10 ELR 20042 (1979), where the Supreme Court held that to force the owner of a private saltwater pond to allow public access simply because the owner had connected the pond to the sea would be a taking. For an argument that Kaiser Aetna is inapposite to the facts of Riverside, see Jackson and Armitage, supra note 3, at 10371.

12. 16 ELR at 20087 (Section II of the Court's opinion).

13. 16 ELR at 20087, citing Agins v. City of Tiburon, 447 U.S 255, 10 ELR 20361 (1980) (ellipsis by the Court).

14. 16 ELR at 20087, citing Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 11 ELR 20569 (1981).

15. 28 U.S.C § 1491.

16. 459 U.S. 70 (1982).

17. See 16 ELR at 20088, n.5.

18. 16 ELR at 20088.

19. 16 ELR at 20088.

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

21. 16 ELR at 20089.

22. 16 ELR at 20089, quoting 33 C.F.R. § 320.4(b)(2)(i), ELR REG. 46371 (ellipsis by the Court).

23. The decision came down just seven weeks after oral argument.

24. E.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978) (circumscribing judicial review of nuclear plant licensing. See Comment, Vermont Yankee: Supreme Court Sets New Limits on Judicial Review of Agency Rule Making, 8 ELR 10103 (1978)); Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 13 ELR 20515 (1983) (holding that the National Environmental Policy Act does not require agencies to consider the psychological impact of their activities. See Dougherty, The Application of NEPA to Agency Actions Affecting Human Health, 13 ELR 10179 (1983)); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 104 S. Ct. 2778, 14 ELR 20507 (1984) (upholding th Environmental Protection Agency's interpretation of its power to implement a "bubble" policy under the Clean Air Act. See Comment, Three Strikes and the Umpire Is Out: The Supreme Court Throws the D.C. Circuit Out of the Bubble Review Game, 14 ELR 10338 (1984)).

25. See generally Reed, The Supreme Court and Environmental Law: A Whole New Ballgame?, 14 ELR 10263 (1984).

26. 104 S. Ct. 2862, 14 ELR 20539 (1984).

27. 104 S. Ct. 2321, 14 ELR 20549 (digest) (1984).

28. See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978); Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 13 ELR 20544 (1983); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 104 S. Ct. 2778, 14 ELR 20507 (1984); and in particular Chemical Manufacturers Association v. Natural Resources Defense Council, Inc., 105 S. Ct. 1102, 15 ELR 20230 (1985), upholding EPA's construction of a provision of the FWPCA governing issuance of "fundamentally different factor" variances from toxic pollutants standards.

29. In fact, the Court actually cited Chevron and Chemical Manufacturers Association on this point. 16 ELR at 20088.

30. Riverside was not the first case to apply takings law to wetlands regulation. For an analysis of the area, see Want, The Taking Defense to Wetlands Regulation, 14 ELR 10169 (1984).

31. 16 ELR at 20087.

32. The 5th Amendment applies to the states through the 14th. See Hawaii Housing Authority v. Midkiff, 104 S. Ct. 2321, 14 ELR 20549 (digest) (1984).

33. See, e.g., Ruckelshaus v. Monsanto Co., 104 S. Ct. 2862, 14 ELR 20539 (1984) (applying taking law to trade secrets).

34. 16 ELR at 20087.

35. Ruckelshaus v. Monsanto Co., 104 S. Ct. 2862, 14 ELR 20539 (1984).

36. See id. at 2880, 14 ELR at 20546.

37. One person making such claims has been Robert Dawson, who was recently confirmed as Assistant Secretary of the Army (Civil Works), in charge of the Corps. In testimony given before the Senate Subcommittee on Environmental Pollution's § 404 oversight hearings in May 1985, he said, "One significant point to recall is that the Congress did not design § 404 to be a wetland protection mechanism…." Testimony of Robert K. Dawson, Acting Assistant Secretary of the Army (Civil Works), Before the Subcommittee on Environmental Pollution of the Committee on Environment and Public Works at 11 (May 21, 1985). Full committee chairman Senator Stafford (R-Vt.) made a special appearance at a subsequent oversight hearing and criticized Dawson's position. See Senate Subcommittee Holds Clean Water Act § 404 Oversight Hearings, NAT'L WETLANDS NEWSLETTER, July-Aug. 1985, at 8, 9.

38. 16 ELR 20088, n.8. By "isolated," the Court meant not adjacent to other regulated waters.

39. See Utah v. Marsh, 740 F.2d 799, 14 ELR 20683 (10th Cir. 1984) (citing use of a lake by migratory birds to support Congress' exercise of Commerce Clause power over the lake via § 404).

40. A pre-Riverside memorandum prepared by the General Counsel of the Environmental Protection Agency (EPA) concluded that § 404 jurisdiction applies to any wetland that Congress may reach under the Commerce Clause, including any isolated wetland that provides habitat or potential habitat for migratory birds or endangered species. Memo from Francis S. Blake, EPA General Counsel, to Richard E. Sanderson, EPA Acting Assistant Administrator, Office of External Affairs (Sept. 12, 1985) (Clean Water Act Jurisdiction over Isolated Waters). The problem of pollution of migratory habitat may seem small, but it is real, as recent news about the pollution of Kesterson National Wildlife Refuge has shown. See Comment, Tragedy at Kesterson Reservoir: Death of a Wildlife Refuge Illustrates Failings of Water Law, 15 ELR 10386 (1985).

41. 715 F.2d 897, 13 ELR 20942 (5th Cir. 1983).

42. United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 15 ELR 21091 (11th Cir. 1985).

43. See United States v. Huebner, 752 F.2d 1235, 15 ELR 20083 (7th Cir. 1985) (holding that the farming exception does not apply to activities that reduce the size of wetlands).

44. See Riverside Irrigation District v. Andrews, 758 F.2d 508, 15 ELR 20333 (10th Cir. 1985) (upholding denial of a permit to protect offsite endangered species).

45. EPA's role is largely limited to drawing up guidelines for the program and reviewing permits. See infra note 48.

46. 131 CONG. REC. S16896 (daily ed. Dec. 4, 1985). Dawson had been serving as acting Assistant Secretary and before that as Deputy Assistant Secretary under Assistant Secretary William Gianelli.

47. See Nomination of Robert K. Dawson to Be Assistant Secretary of the Army for Civil Works, ENVTL. & ENERGY STUDY INST. WEEKLY BULL., Week of Dec. 2, 1985, at B7.

48. First, Corps issuance of dredge and fill permits is theoretically governed by a set of Guidelines that EPA has promulgated under FWPCA § 404(b)(1). The Guidelines appear at 40 C.F.R. pt. 230, ELR REG. 46321. The Corps has agreed to be bound by the Guidelines, see National Wildlife Federation v. Marsh, 14 ELR 20261 (D.D.C. Feb. 10, 1984) (settlement agreement); however, it claims not to be bound by EPA's interpretations of the Guidelines. For an analysis of the situation, see Liebesman, The Role of EPA's Guidelines in the Clean Water Act § 404 Permit Program — Judicial Interpretation and Administrative Application, 14 ELR 10272 (1984).

Second, under FWPCA § 404(c), EPA may veto or impose restrictions on Corps permits. This is a cumbersome process, requiring public hearings, interagency consultation, and publication of written findings, and EPA has used it sparingly. In the last year and one-half, though, EPA has invoked its powers three times. See EPA Issues Final § 404(c) Determination Restricting Discharges in Louisiana Wetlands Site, NAT'L WETLANDS NEWSLETTER, Nov.-Dec. 1985, at 2. For a recent opinion concerning EPA powers under § 404(c), see Newport Galleria Group v. Deland, 618 F. Supp. 1129, 16 ELR 20033 (D.D.C. Sept. 25, 1985).

Third, the § 404 program has lately been subject to tough congressional oversight. See Senate Subcommittee Holds Clean Water Act § 404 Oversight Hearings, NAT'L WETLANDS NEWSLETTER, July-Aug. 1985 at 8.

49. A rulemaking to "streamline" and reduce the "regulatory burden" of the Corps' § 404 regulations has been ongoing since July 1982. See 50 Fed. Reg. 44045 (Oct. 29, 1985) (regulatory agenda); see also Comment, Corps Recasts § 404 Permit Program, Braces for Political, Legal Skirmishes, 13 ELR 10128 (1983) (analysis of § 404 reform efforts as of May 1983). A suit by environmental groups, National Wildlife Federation v. Marsh, 14 ELR 20261 (D.D.C. Feb. 10, 1984), forced the Corps to revise its proposed rules and promulgate additional ones, which it did in 1984, 49 Fed. Reg. 12260, 39478 (Mar. 29 & Oct. 5, 1984). The Corps has taken no formal action on the rulemaking since then, but it could publish final rules at any time.