CHAPTER 1 OVERVIEW OF REGULATION UNDER SECTION 404 OF THE CLEAN WATER ACT (HOW CAN YOU GET A PERMIT TO DO WHAT YOU WANT TO DO?)
| Jurisdiction | United States |
(Nov 1993)
OVERVIEW OF REGULATION UNDER SECTION 404 OF THE CLEAN WATER ACT (HOW CAN YOU GET A PERMIT TO DO WHAT YOU WANT TO DO?)
Saunders, Snyder, Ross & Dickson, P.C.
Denver, Colorado
I. A QUESTION CLIENTS MOST OFTEN ASK: "DO I NEED A § 404 PERMIT TO DO WHAT I WANT TO DO?"
The "short answer" to this question is often: "probably." A more precise, but equally frustrating answer is: "If the area in which you want to work has standing water, contains vegetation which is dependent on wet soil conditions, if water has ever flowed over the area, or if the area looks potentially attractive to bird life, the answer is probably yes."
We have entered the second decade since the first substantive amendments to the Clean Water Act, which established the § 404 program in 1972. The § 404 program was created at a time when environmentally insensitive dredging operations in our nation's major rivers, waterways and coastlines were a national concern. The program now reaches its tentacles well into the arid west. Growing cities feel stymied, ranchers are upset, and miners are concerned.
But let us look at the goals of the Clean Water Act. Section 101(a), 33 U.S.C. 1251(a) (1988), declares that it is "The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." That national objective is accompanied by several other goals which include inter alia that the discharge of pollutants into navigable waters be eliminated. Couple these sweeping goals and the specific implementing language of § 404 with the expansive interpretation of the commerce clause by the Supreme Court and one can envision a jurisdictional reach for this program without limit.
A. Synopsis of the History of the Jurisdictional Reach of the § 404 Program — A Case Study in Expanding Agency Jurisdiction
The legislative debate surrounding the 1972 enactment of § 404 completely lacks discussion concerning wetlands. Congress instead focused on environmental problems resulting from the disposal of contaminated spoil that had been dredged from the nation's major
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rivers and harbors, and whether the U.S. Army Corps of Engineers ("Corps") or whether the new U.S. Environmental Protection Agency ("EPA") would administer the permit program over dredge and fill operations. The House Bill gave this authority to the Corps, which historically had administered dredging activities in waters of traditional navigability. 118 Cong. Rec. 33,752 (daily ed. Oct. 4, 1972). EPA was granted § 404 administrative authority and point source discharge permitting authority in the Senate Bill. 1973 Clean Water Act Legis. Hist. at 177. 118 Cong. Reg. 33,699 (daily ed. Oct. 4, 1972). The compromise that has come to govern grants the Corps permitting authority under § 404(a), 33 U.S.C. § 1344(a), however, that authority must be administered pursuant to the criteria promulgated by EPA pursuant to § 404(b), 33 U.S.C. § 1344(b). In addition, EPA was granted veto authority under § 404(c) 33 U.S.C. § 1344(c).
At first, the jurisdictional reach of the § 404 program covered only waters of traditional navigability which corresponded to the Corps' historic focus. This was challenged in NRDC v. Callaway, 392 F. Supp. 685 (D.D.C. 1975) and, as a result, the Corps expanded the jurisdictional reach of the § 404 program to coincide with the reach of "waters of the United States," as interpreted in other Clean Water Act programs. See the preamble discussion in 42 Fed. Reg. 37,122-24 (1977).
A major effort was mounted during the 1977 Clean Water Act reauthorization process to rollback the expanded jurisdictional reach to waters of traditional navigability as had been defined by the Corps. Although it succeeded in the House of Representatives, the effort narrowly failed in the Senate. See 123 Cong. Rec. 26,710-28 (daily ed. Aug. 4, 1977).
In 1985, the Supreme Court handed down United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), which held that "waters" hydrologically connected to navigable waters, defined to the fullest extent of the commerce clause, could be subjected to CWA jurisdiction. The Court expressly reserved the question of whether isolated waters (i.e. those not connected to navigable waters) could be subject to jurisdiction as waters of the United States. Id. at 131 n.8. The general counsel of EPA issued an opinion in 1985 stating that isolated and ephemeral "waters" can be jurisdictional if there is a commerce clause connection to the waters. It provided that jurisdiction could be asserted if the area could be used (1) as habitat by birds protected by a migratory treaty, (2) by migratory birds, or (3) by endangered species. Memorandum from EPA general counsel Blake, dated September 12, 1985, "Clean Water Act Jurisdiction Over Isolated Wetlands."
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B. Waters of the United States — Is There a Limit?
In 1993, we find the term "waters of the United States" to be very broadly defined to include all waters currently used, used in the past, or susceptible to use in interstate or foreign commerce. 33 C.F.R. § 328.3(a). This includes all lakes, rivers, streams, mud flats, wet meadows, wetlands, impoundments of water, and tributaries to the above, the use or degradation of which could affect interstate or foreign commerce. Id. Thus, waters which are or could be used by interstate or foreign travelers for recreational purposes qualify as jurisdictional waters. Id. So do waters used to irrigate crops sold in interstate commerce. Id.
Section 404 "waters" have been held to extend to artificial or man-made water bodies, including reservoirs and wetlands arising from seepage or altered drainage patterns. See Leslie Salt Co. vs. United States, 896 F.2d 354 (9th Cir. 1990), cert. denied, 111 S. Ct. 1089 (1991); United States v. Ciampetti, 615 F.Supp. 116 (D.N.J. 1984), aff'd, 772 F.2d 893 (3d Cir. 1985). Some even believe that wetlands arising at the toe of dams qualify as jurisdictional waters. "Waters of the United States" has also been determined administratively and judicially to extend to isolated waters and to intermittent streams and dry arroyos. See United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979); Utah v. Marsh, 740 F.2d 799, 802-04 (10th Cir. 1984); Quivira Mining Co. v. EPA, 765 F.2d 126 (10th Cir. 1985). The placement of material into such areas is regulated under § 404 even at those times when water is not physically present in the jurisdictional "water body." See Quivira, supra; United States v. Phelps Dodge Corp., 391 F.Supp. 1181 (D.Az. 1975).
In 1992, an intriguing saga began when the U.S. Court of Appeals for the Seventh Circuit required that EPA demonstrate more than a mere assertion of the potential for an interstate effect. Hoffman Homes v. EPA, 961 F.2d 1310 (7th Cir. 1992). Shortly thereafter, the court abruptly vacated its decision without explanation. Hoffman Homes v. EPA, 975 F.2d 1544 (7th Cir. 1992). A new opinion was issued following a year of settlement negotiations. Hoffman Homes v. EPA, 999 F.2d 256 (7th Cir. 1993). The court upheld EPA's interpretation that regulatory "use of the word 'could' indicates the regulation covers waters whose connection to interstate commerce may be potential rather than actual, minimal rather than substantial." Id. at 261. The court also expressly approved EPA's interpretation "allowing migratory birds to be that connection between a wetland and interstate commerce." Id.; accord Leslie Salt, 896 F.2d at 360.
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The Corps and EPA regulations do not provide a definition of "migratory birds." Does that class include any species of bird which crosses state lines? U.S. Fish and Wildlife Service regulations contain eight pages of migratory bird listings including over thirty species of Sparrows and the common Starling. 50 C.F.R. § 10.13 (1992).
The federal agencies1 claim authority to regulate disjunct landscape features capable of temporarily holding water. When trying to understand how federal agencies view the extent of their authority, one must assume that it will be exercised broadly based on the argument that § 404 permit jurisdiction could exist over any isolated physical feature capable of temporarily holding or running water — even if devoid of aquatic features and not connected to any body of water — merely if it could be visited by any non-water dependent migratory bird. Under this reasoning, jurisdiction would exist even if that physical "feature" were dry in most years and provided no special ecological requirement for the bird or any discernable effect on interstate commerce. This enhanced jurisdictional reach of the § 404 program will be particularly acute in the arid southwest where jurisdiction may be asserted over dry arroyos that only run seasonally, if at all, are rarely connected to navigable waters, and do not support an aquatic ecosystem. This jurisdictional philosophy establishes a test whereby any instance where water collects in or runs over the landscape can establish jurisdiction under the Clean Water Act. Such a rule knows no limits in theory. Query, will this theory prevail?
EPA and the Corps issued a new rule on August 25, 1993 to expand the regulatory definition of discharge, thereby further expanding the jurisdictional reach of the program. 58 Fed. Reg. 45008 (Aug. 25, 1993). This rule expands jurisdiction to excavation activities that degrade or destroy "waters" which heretofore were not routinely subject to regulation. Thus, excavation activities, including mechanized land clearing, ditching and ditch maintenance, channelization, excavation and many mining activities, are now touched more frequently by § 404 than in the past. This regulation is presently the subject of an industry challenge in Federal Court in Washington, D.C.
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C. Exemptions from § 404...
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