Chapter §12.3 Scope of Jurisdiction and Regulatory Authority

• Jurisdiction: Washington

§12.3 SCOPE OF JURISDICTION AND REGULATORY AUTHORITY

The jurisdictional scope of the CWA is "navigable waters," defined in CWA §502(7) as "waters of the United States, including the territorial seas." 33 U.S.C. §1362(7).

Existing EPA and Corps of Engineers regulations define "waters of the United States" as

(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 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 travelers 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 the definition;
(5)	Tributaries of waters identified in ... this section;
(6)	The territorial seas;
(7)	Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in ... this section.

33 C.F.R. §328.3(a) (Corps of Engineers); 40 C.F.R. §230.3(s) (EPA); see also 40 C.F.R. §§110.1, 112.2, 116.3, 117.1, 122.2, 232.2, 300.5, 302.3, 401.11, & 40 C.F.R. pt. 300 (for substantively similar regulatory definitions).

(1) Federal agencies

Under the CWA, federal jurisdiction is broad, particularly regarding establishment of national standards or effluent limitations. Claudia Copeland, CSR Report for Congress RL 30030, Clean Water Act: A Summary of the Law (Oct. 18, 2016), available at https://www.fas.org/sgp/crs/misc/RL30030.pdf. The EPA issues regulations containing the BPT and BAT effluent standards applicable to categories of industrial sources (such as iron and steel manufacturing, organic chemical manufacturing, petroleum refining, and others). Certain responsibilities are delegated to the states or to federally recognized Indian tribes, however. The CWA embodies a philosophy of federal-state partnership in which the federal government sets the agenda and standards for pollution abatement, while states carry out day-to-day activities of implementation and enforcement. Id. at 2, 4. Delegated responsibilities under the CWA include, among other things, authority for qualified states and Indian tribes to issue discharge permits to industries and municipalities, to enforce permits, and to set water quality standards.Id. at 4.

The NPDES permit incorporates numerical effluent limitations issued by the EPA. The initial BPT limitations focused on regulating discharges of conventional pollutants, such as bacteria and oxygen-consuming materials. Id. at 6. The more-stringent BAT limitations emphasize controlling toxic pollutants, including heavy metals, pesticides, and other organic chemicals. Id. In addition to these limitations applicable to categories of industry, the EPA has issued water quality criteria for more than 115 pollutants, including 65 named classes or categories of toxic chemicals, or priority pollutants, which provide ambient, or overall, concentration levels for the pollutants and provide guidance to states for establishing water quality standards that will achieve the goals of the Act. Id.

A separate type of permit is required to dispose of dredge or fill material in the nation's waters including wetlands. This permit program is administered under §404 of the CWA, 33 U.S.C. §1344, by the Corps of Engineers, subject to and using the EPA's environmental guidance. Id. Some types of activities are exempt from permit requirements, including certain farming, ranching, and forestry practices that do not alter the use or character of the land; some construction and maintenance; and activities already regulated by states under other provisions of the CWA. Id. With EPA approval and oversight, states and tribes can assume administration of the §404 permit program in certain "nonnavigable" waters within their jurisdiction. So far, only Michigan and New Jersey have done this. In those two states, the Corps retains jurisdiction in tidal and navigable waters and their adjacent wetlands.

Because of the federal jurisdictional reach and the impacts on private property use and development, the CWA's wetlands permit program is one of the most controversial parts of the law. Id.

In 2009, the U.S. Supreme Court held that the Corps, rather than the EPA, has jurisdiction to issue permits under the CWA for the discharge of fill material into navigable waters. Coeur Alaska, Inc. v. Se. Alaska Conserv. Council, 557 U.S. 261, 129 S.Ct. 2458, 174 L.Ed.2d 193 (2009). The court affirmed that discharges allowed by the Corps under §404 do not require permits from the EPA under §402 of the CWA, and sustained the Corps' and the EPA's reading of the relationship between those two sections of the CWA, despite the fact that the interpretation was based on an internal memorandum rather than formal rule making or regulations, which would have required Chevron deference. Id. at 273-77.

Chevron deference, named for Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), is a principle of administrative law requiring courts to defer to interpretations of statutes made by government agencies responsible for enforcing them, unless such interpretations are unreasonable. Under Chevron, the court must defer to an agency's reasonable interpretation, even if a court finds that another interpretation is reasonable or even superior to the agency's interpretation. Chevron, 467 U.S. at 844-45.

(a) Environmental Protection Agency

The EPA administers the NPDES permitting system under §402, 33 U.S.C. §1342, applying effluent limitations and performance standards issued pursuant to §301 and §306. Under this permitting program, entities that discharge pollutants from a point source into waters of the United States are required to obtain a permit from the EPA, or the state or tribe if it has been delegated permitting authority. Discharges pursuant to a permit issued under §402 must comply with applicable EPA-established "effluentlimitations" under §301,33 U.S.C. §1311, for existing sources; and "performance standards" under §306, 33 U.S.C. §1316, for new sources.

(b) Army Corps of Engineers

The CWA regulates the discharge of dredge or fill material into waters of the United States pursuant to permits issued by the Corps under §404, which provides that the Corps "may issue permits...