CHAPTER 10 SECTION 404 PERMITTING

• Jurisdiction: United States

Land and Permitting II
(Jan 1996)
CHAPTER 10
SECTION 404 PERMITTING
H. Michael Keller
Van Cott, Bagley, Cornwall & McCarthy
Salt Lake City, Utah

I. FEDERAL STATUTES

Activities in and discharges to the Nation's waters, including lakes, rivers, streams, coastal waters and wetlands, are regulated under the Federal Water Pollution Control Act (also known as the Clean Water Act ("CWA")),¹ and the Rivers and Harbors Appropriations Act of 1899 ("Rivers and Harbors Act").²

A. RIVERS AND HARBOR ACT. The Rivers and Harbors Act protects navigation by prohibiting obstruction of navigable waters. Section 10 requires a permit from the Army Corps of Engineers (the "Corps") for construction, excavation, filling, or other activities that obstruct navigable waters.³

B. CLEAN WATER ACT. The CWA protects water quality by restoring and maintaining the chemical, physical and biological integrity of navigable waters.⁴ Section 402 of the Act prohibits discharges of pollutants into navigable waters without a discharge permit (NPDES permit) issued by the EPA or an authorized state agency.⁵ Section 404 prohibits discharges of dredged or fill material into navigable waters without a permit (Section 404 permit) issued by the Corps.⁶ Sections 402 and 404 were originally enacted in 1972 as part of the Federal Water Pollution Control Act of 1972.⁷

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II. REGULATORY AGENCIES

The § 10 program is administered by the Corps, whereas the § 404 program is administered jointly by the Corps and the Environmental Protection Agency ("EPA"), with involvement of the Fish & Wildlife Service ("FWS"), the Soil Conservation Service ("SCS") and certain other federal agencies. The Corps is the primary permitting authority under § 404, but EPA holds ultimate veto authority over the Corps' permitting decisions. Both agencies have enforcement authority.

III. ORGANIZATION OF THE CORPS

The Corps is highly decentralized, with 36 district offices throughout the country. Most permitting and delineation decisions are handled at or under the direction of the District Engineer with input from local field offices. Each District is headed by a District Engineer and is located within one of nine Divisions, each headed by a Division Engineer.

The North Pacific Division, headquartered in Portland, covers Alaska, Washington, Oregon and Idaho. Each state comprises a separate District.

The South Pacific Division, headquartered in San Francisco, covers California, Nevada, Arizona, Utah, and western Colorado, and is divided into three Districts headquartered in San Francisco, Sacramento, and Los Angeles. The Sacramento District is divided into the Central California-Nevada Section, which covers central California and all of Nevada, and the Intermountain Section, which covers Utah and western Colorado. Within the Intermountain Section, Utah is served by a field office in Woods Cross, Utah and western Colorado is served by a field office in Grand Junction, Colorado. Arizona and Southern California are in the Los Angeles District of the South Pacific Division.

Northeastern Colorado, Montana, Wyoming, and the Dakotas are in the Omaha District of the Missouri River Division also headquartered in Omaha, while southeastern Colorado and New Mexico are in the Albuquerque District of the Southwestern Division, which is headquartered in Dallas.

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IV. REGULATORY FRAMEWORK OF THE SECTION 404 PROGRAM

The statutory requirements of the 404 program are implemented through detailed regulations issued by the Corps⁸ and by EPA.⁹ In addition, there are regulatory guidance letters ("RGLs") issued from time to time by the Corps, and memoranda of understanding between the Corps and EPA articulating the position of the agencies on such matters as enforcement, jurisdiction, and mitigation. Questions concerning the program may be directed to a Corps District or field office or by calling EPA's toll-free Wetlands Hotline (800) 832-7828.

V. REGULATED WATERS

Jurisdiction under both § 10 and § 404 extends to "navigable waters," but the definition of that term differs under the two statutes in keeping with their differing purposes.

A. RIVERS AND HARBOR ACT JURISDICTION. Jurisdiction under § 10 is based on a concept of commercial navigability and extends to waters that are used, have been used, or may be susceptible for use to transport interstate or foreign commerce.¹⁰ It also extends to those waters that are subject to the ebb and flow of the tide.¹¹

Section 10 jurisdiction only extends to the mean or ordinary high water line of non-tidal navigable waters.¹² As a result, § 10 does not apply to activities in wetlands that are not subject to inundation by the ordinary high waters. Although Section 10 jurisdiction is more limited than jurisdiction under the Clean Water Act, situations can arise where an activity is exempt from the Clean Water Act, but still subject to regulation under Section 10.

B. CLEAN WATER ACT JURISDICTION. Navigable waters are broadly defined as "the waters of the United States, including the territorial seas."¹³ Jurisdiction extends beyond

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those waters that are commercially navigable to encompass nonnavigable tributaries, wetlands and other waters the use, degradation, or destruction of which could affect interstate or foreign commerce.

1. Regulatory Definition. The Corps and EPA define "waters of the United States" to include:

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

b. All interstate waters including interstate wetlands;

c. 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 travelers for recreational or other purposes, (ii) or from which fish or shellfish are or could be taken or sold in interstate or foreign commerce, (iii) or those which are used or could be used for industrial purposes by industries in interstate commerce;

d. All impoundments of waters otherwise defined as waters of the United States;

e. Tributaries of any of the foregoing waters;

f. The territorial seas; and

g. Wetlands adjacent to any of the foregoing waters (other than waters that are themselves wetlands)....¹⁴

2. Groundwater. Navigable waters do not include groundwater, at least to the extent the affected groundwater is isolated and not in direct hydrologic connection with regulated

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surface waters.¹⁵ In the recent case of Village of Oconomowoc Lake v. Dayton Hudson Corp.,¹⁶ the 7th Circuit Court of Appeals followed the decision of the 5th Circuit in Exxon v. Train and held that groundwater was not subject to the Clean Water Act. The court stated that the possibility of a hydrologic connection between the ground water and surface waters was not sufficient to trigger jurisdiction over the groundwater. Other cases, however, have held that Clean Water Act jurisdiction extends to "tributary groundwater" and to discharges that reach surface waters through groundwater.¹⁷

3. Tributaries. Tributaries of navigable waters are themselves subject to Clean Water Act jurisdiction.¹⁸ Tributaries include non-perennial streams (i.e. ephemeral or intermittent streams) which are connected to navigable waters.

Thus, discharges into, or excavation, construction or other activities within normally dry arroyos or other tributary drainages that only flow in response to precipitation are subject to Clean Water Act jurisdiction. In Quivira Mining Co. v. EPA,¹⁹ the court held that the discharge of pollutants from uranium mining facilities into normally dry arroyos was subject to Clean Water Act jurisdiction where flow from heavy rainfall could reach other navigable waters. A similar conclusion (in dictum) was reached by the court in United States v. Phelps Dodge Corp.. with respect to dredging and filling activities in a dry stream bed.²⁰

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4. Other Waters — the Use, Degradation, or Destruction of Which Could Affect Interstate Commerce. Following enactment of the Federal Water Pollution Control Act in 1972, the Corps narrowly interpreted jurisdiction under Section 404 to be the same as that under Section 10 of the Rivers and Harbors Act, and, thus, limited to navigable waters below the mean high water mark. This interpretation was successfully challenged in court.²¹ Regulation under § 404 now extends to "other waters...the use, degradation or destruction of which would affect or could affect interstate or foreign commerce."²² Under this test only a limited connection to interstate commerce is required.

5. Isolated Waters Used by Waterfowl. Use by migratory waterfowl is considered by EPA to be a sufficient connection with interstate commerce to bring isolated waters and wetlands within the jurisdiction of the Clean Water Act. Several court decisions have recognized use by migratory waterfowl as one of the factors supporting Clean Water Act jurisdiction. In Hoffman Homes Inc. v. EPA, the Court directly faced the question of whether such use alone could be sufficient.²³ The Court agreed with EPA that Clean Water Act jurisdiction does extend to isolated wetlands where the only connection to interstate commerce is use by migratory waterfowl. A similar conclusion was recently reached by the Ninth Circuit in Leslie Salt Co. v. United States.²⁴

6. Artificial Waters. Clean Water Act jurisdiction does not depend on how the water was created. Artificially created waters may be subject to Clean Water Act jurisdiction if they meet the criteria of navigable waters.

Clean Water Act jurisdiction over manmade bodies of water is illustrated by the case of Leslie Salt Co. v. United States...