What Wetlands Are Regulated? Jurisdiction of the §404 Program

Date01 April 2010
What Wetlands
Are Regulated?
Jurisdiction of the
§404 Program
by Margaret “Peggy” Strand and
Lowell M. Rothschild
Peggy Strand and Lowell Rothschild are partners
at Venable, LLP in Washington, D.C.
Editors’ Summary
Despite the 1972 Clean Water Act approaching its 40th
anniversary, the nation continues to struggle to dene
which waters fall within federal jurisdiction under
that landmark statute. Wetlands frequently represent
the geographical transition zone between open waters
and uplands, such that wetland jurisdictional disputes
are at the forefront of the Clean Water Act jurisdic-
tion debate. is A rticle, excerpted from the Wetlands
, summarizes the status of wetland jurisdic-
tional law, including standards for treating wetlands as
“waters of the United States” subject to federal author-
ity, as well as application of the three-parameter techni-
cal criteria for wetland delineation. e text addresses
the confusing Supreme Court cases of Rapanos and
, which indicate that federal jurisdiction
must cease at some (as yet not clearly dened) point
within waterways. In addition, it discusses the ma ny
long-settled issues of wetland jurisdiction.
I. Clean Water Act Jurisdictional Wetlands
Wetlands or other waters that are subject to federal control
are referred to as “jurisdictional waters” because they are
within the regulatory jurisdiction of federal law. e Clean
Water Act (CWA)1 regulations provide a set of denitions
identifying physical standa rds used to determine what geo-
graphic features qualify as wetlands. ese are discussed
below. A separate set of denitions and legal standards is
used to decide whether any specic feature falls under federal
legal jurisdiction as discussed below. e legal jurisdiction—
whether federal law regulates those physical features dened
as wetlands—has presented the most challenging issues, as
reected in recent U.S. Supreme Court decisions.
e CWA does not dene wetlands or even mention wet-
lands within the context of the permit and regulatory pro-
gram. Rather, all of the rules and criteria for determining
wetlands jurisdiction are found in regulations and in other
policy g uidance. e t ypes of geographic or landscape fea-
tures treated as wetlands subject to regulation under the
CWA have changed over the course of the years. e geo-
graphic reach of CWA jurisdiction remains under active
review by the agencies and the courts.
e denition of jurisdictional waters involves several pro-
visions of the statute and the regulations. e CWA oper-
ates by prohibiting the “discha rge of a ny pollutant by any
person.”2 e phrase “discharge of a pollutant” is dened,
in pertinent pa rt, as “any addition of any pollutant to navi-
gable waters from any point source.”3 e statute denes the
key phrase “navigable waters” as “the waters of the United
States, including the territorial seas.”4 e U.S. Congress left
it to the U.S. Army Corps of Engineers (the Corps) and the
U.S. Environmental Protection Agency (EPA) to provide
a regulatory denition for the term “waters of the United
States,” which would determine the limits of CWA jurisdic-
tion. As discussed more fully below, the Supreme Court,
despite a serious split on these issues, has held that waters of
the United States is limited by its relationship to the phrase
navigable waters. e result has been an almost continuous
eort to determine the geographic limits to federal wetlands
jurisdiction. e precise extent of such limits remains uncer-
tain, and will be established in regulatory practice and case
law over the coming years. Congress may also amend the
CWA to address this issue.
1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
2. 33 U.S.C. §1311(a), ELR S. FWPCA §301(a).
3. 33 U.S.C. §1362(12), ELR S. FWPCA §502(12).
4. 33 U.S.C. §1362(7), ELR S. FWPCA §502(7).
Wetlands Deskbook (Margaret “Peggy” Strand and
   
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
4-2010 NEWS & ANALYSIS 40 ELR 10373
e Corps originally approached its jurisdiction under
§404 in the same manner that it regulates pursuant to the
Rivers and Harbors Act (RHA). Under the RHA, the Corps
regulates activities in traditionally navigable waters.5 Tradi-
tionally navigable waters are waters subject to the ebb and
ow of the tide and/or waters that are, or have been, used to
transport interstate or foreign commerce.6 Tidal ats, subject
to regular tidal ow, are considered to lie under traditionally
navigable waters, and thus are subject to the RHA .7 RHA
jurisdiction also extends to the areas where a river customar-
ily ows in its natural meanders.8
e initial Corps regulations under §404 extended cover-
age to the navigable waters, as had the RHA.9 Since wetlands
are generally non-navigable, t his early denition excluded
most wetlands and other isolated or shallow waters from
CWA jurisdiction. Environmental groups challenged these
regulations, arguing that the regulatory jurisdiction of the
CWA extended beyond traditionally navigable waters to a
broader aquatic system, including small streams, tributar-
ies, a nd wetlands. e issue was rst addressed in 
Resources    ,10 where the Corps’
regulations were invalidated on the grounds that they applied
the CWA too narrowly. As a result, the Corps revised its
regulations to include a broader range of waters, including
adjacent wetlands and isolated waters. e C orps followed
the instruction of the court and relied on the CWA’s legis-
lative history, which indicated t hat Congress intended the
phrase “navigable waters” to be given the broadest constitu-
tional interpretation.11
e current Corps and EPA regulations dene waters of
the United States to include:
• all traditionally navigable waters;
• all interstate waters, including interstate wetlands;
• all waters, including wetlands, the use, degradation, or
destruction of which could aect interstate commerce;
• the territorial seas; and
• wetlands adjacent to, and tributaries and impound-
ments of, other waters within the denition.12
5. See 33 C.F.R. pt. 329.
6. 33 C.F.R. §329.4; see also infra Section II.C.1.a., addressing 2008 EPA guid-
ance indicating the Agency’s position that waters susceptible to future com-
mercial use are also “traditionally navigable.”
7. See Buttrey v. United States, 573 F. Supp. 283, 298, 14 ELR 20152 (E.D. La.
1983); P.F.Z. Properties v. Train, 393 F. Supp. 1370, 1380, 1382 (D.D.C.
8. See United States v. Sunset Cove, Inc., 3 ELR 20370 (D. Or. 1973), a’d in
   , 514 F.2d 1089, 5 ELR 20407 (9th Cir.
1975); United States v. Zanger, 767 F. Supp. 1030, 22 ELR 20231 (N.D. Cal.
9. See 42 Fed. Reg. 37122 (July 19, 1977).
10. 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).
11. See 42 Fed. Reg. at 37127.
e scope of these regu lations, as impacted by Supreme
Court decisions, is addressed more fully below. Under the
§404 program, regu lated parties are initially responsible for
determining whether they have wetlands under the CWA’s
jurisdiction. e follow ing sections provide more informa-
tion on (1) the process for obtainin g such wet lands deter-
minations, (2) the criteria for est ablishing wetlands, and
(3) the factors that aect whether wet lands fa ll within
CWA jurisdiction.
II. Process for Determining Wetlands
A. EPA/Corps Jurisdictional Authority
e division of authority between EPA and the Corps under
the CWA is implicated in the issue of deciding what waters
are subject to the §404 program. e CWA’s single denition
of waters of the United States denes the limits of author-
ity for both the §404 permit program and other programs
administered by EPA, such as the CWA §402 national pollut-
ant discharge elimination system (NPDES) permit program.
After EPA and the Corps disagreed over which agency had
authority to dene the scope of waters of the United States for
purposes of the §404 program, the Corps requested the U.S.
Attorney General to resolve the dispute. In 1979, U.S. Attor-
ney General Benjamin Civiletti issued an opinion (Civiletti
Opinion) concluding that EPA, not the Corps, had ultimate
authority to decide the CWA’s jurisdiction because EPA car-
ried most of the responsibility for administering the statute.13
e Civiletti Opinion also concluded that EPA, rather than
the Corps, had the ultimate authority to decide the scope of
the exemptions provided in §404(f).
While EPA was vested with the primary authority for the
CWA’s jurisdictional decisions,14 the Agency lacked both the
resources and the authority to take over the §404 permitting
program from the Corps. However, for the Corps to admin-
ister §404 and process permit applications, it must be able
to decide whether lling activities will occur in the CWA’s
jurisdictional waters. us, EPA and the Corps entered into a
Memorandum of Understanding (MOU) on April 23, 1980,
concerning geographical jurisdiction of the §404 program.15
e 1980 MOU was superseded by a 1989 Memorandum
of Agreement (MOA) between the Corps and EPA on juris-
dictional determinations.16 Under the 1989 MOA, EPA and
13. 43 Op. Att’y Gen. 15 (1979.
14. 33 U.S.C. §1344(a), ELR S. FWPCA §404(a), clearly gives the Army, not
EPA, permit-issuing authority.
15. Memorandum of Understanding, Geographical Jurisdiction of the Section
404 Program (Apr. 23, 1980), reprinted in 45 Fed. Reg. 45018 (July, 2, 1980).
16. Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning the Determination of the
Geographic Jurisdiction of the Section 404 Program and the Application of
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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