What Wetlands Are Regulated? Jurisdiction of the §404 Program

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 13-39

Page 13

Chapter 2

What Wetlands Are Regulated?

Jurisdiction of the §404 Program

I. CWA Jurisdictional Wetlands

Wetlands or other waters that are subject to federal

control are referred to as “jurisdictional waters”

because they a re within the regulatory jurisd iction

of federal law. e CWA regu lations provide a set

of denitions identifying physical standards used

to determine what geographic features qualify as

wetlands. ese are discussed below. A separate set

of denitions and lega l standards is used to decide

whether any specic feature falls under federal legal

jurisdiction as discussed below. e legal jurisdic-

tion—whether federal law regulates those physi-

cal features dened a s wetlands—has presented

the most challenging issues, as reected in recent

Supreme Court decisions.

e CWA does not dene wetlands or even

mention wet lands within the context of t he per-

mit and regulatory program. Rather, all of the rules

and criteria for determining wetlands jurisdiction

are found in regulations and in other policy guid-

ance. e types of geographic or landscape features

treated as wetla nds subject to regulation under the

CWA have changed over the course of the years.

e geographic reach of CWA jurisdiction remains

under active review by the agencies and the courts.

e denition of jurisdictional waters involves

several provisions of the statute and the regula-

tions. e CWA operates by prohibiting the “dis-

charge of any pollutant by a ny person.”1 e phrase

“discharge of a pollutant” is dened, in pertinent

part, as “any addition of any pollutant to navigable

waters from any point source.”2 e statute denes

the key phrase “navigable waters” as “the waters of

1. 33 U.S.C. §1311(a), ELR S. FWPCA §301(a).

2. 33 U.S.C. §1362(12), ELR S. FWPCA §502(12).

the United States, including the territorial seas.”3

Congress left it to the Corps a nd EPA to provide

a regulatory denition for the term “waters of the

United States,” which would determine the lim-

its of CWA jurisdiction. As discussed more f ully

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 wet lands jurisdiction. e precise

extent of such limits remains uncertain, and will be

established in reg ulatory practice and caselaw over

the coming years. Congress may also amend the

CWA to address this issue.

e Corps originally approached its jurisdic-

tion under §404 in t he same manner that it regu-

lates pursu ant to the RHA . Under the RHA, the

Corps regulates activities in traditionally navigable

waters.4 Traditionally navigable waters are waters

subject to the ebb and ow of the tide and/or waters

that are, or have been, used to t ransport interstate

or foreign commerce.5 Tidal ats, subject to regular

tidal ow, are considered to lie under traditionally

navigable waters, and thus are subject to the RHA.6

RHA jurisdiction also extends to the areas where

a river customarily ows in its natura l meanders.7

3. 33 U.S.C. §1362(7), ELR S. FWPCA §502(7).

4. See 33 C.F.R. pt. 329.

5. 33 C.F.R. §329.4; see al so infra Section II.C.1.a ., addre ss-

ing 2008 EPA guidance ind icating the Agency’s positio n

that waters susc eptible to future commerc ial u se ar e als o

“traditio nally navi gable.”

6. 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. 1975).

7. See United States v. Sunset Cove, Inc., 3 ELR 20370 (D. Or.

1973), a’d in part & remanded on other grounds, 514 F.2d 1089,

5 ELR 20407 (9th Cir. 1975); United States v. Zanger, 767 F.

Supp. 1030, 22 ELR 20231 (N.D. Cal. 1991).

Page 14 Wetlands Deskbook

e initial Corps regulations under §404

extended coverage to the navigable waters, as had

the RH A.8 Since wetlands are generally non-navi-

gable, this early denition excluded most wetlands

and other isolated or shallow waters from CWA

jurisdiction. Environmental groups challenged

these regulations, arguing that the regulatory juris-

diction of the CWA extended beyond tradition-

ally navigable waters to a broader aquatic s ystem,

including small st reams, tributaries, and wetlands.

e issue wa s  rst addressed in Natural Resources

Defense Council v. Callaway,9 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 Corps followed the instruction

of the court and relied on the CWA’s legislative his-

tory, which indicated that Congress intended the

phrase “navigable waters” to be given the broadest

constitutional interpretation.10

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 u se, deg-

radation, or destruction of which could aect

interstate commerce;

• the territorial seas; and

• wetlands adjacent to, and tributaries and

impoundments of, other waters within the

denition.11

The scope of these regulation s, a s imp acte d

by Supreme C ourt de cisions, is add ressed more

ful ly below.

Under the §404 program, regulated parties are

initially responsible for determining whether they

have wet lands under the CWA’s jurisdiction. e

following sections provide more information on (i)

the process for obtaining such wetla nds determi-

nations, (ii) the criteria for establishing wetlands,

and (iii) the factors that aect whether wetlands

fall within C WA jurisdiction.

8. See 42 Fed. Reg. 37122 (1977).

9. 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).

10. See 42 Fed. Reg. at 37127.

11. 33 C.F.R. §328.3(a), 40 C.F.R. §230.3(s).

II. Process for Determining

Wetlands Jurisdiction

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 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. Attorney 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.12 e Civiletti Opinion also concluded

that EPA, rather than the Corps, had the ultimate

authority to decide the scope of the exemptions pro-

vided in §404(f).13

While EPA was vested with the primary author-

ity for the CWA’s jurisdictional decisions,14 the

Agency lacked both the resources and the author-

ity to take over the §404 permitting program from

the Corps. However, for the Corps to administer

§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 an MOU on April 23, 1980,

concerning geographical jurisdiction of the §404

program.15 e 1980 MOU was superseded by a

1989 MOA bet ween the Corps and EPA on juris-

dictional determinations.16 Under the 1989 MOA,

EPA and the Corps established practical divisions of

responsibility for jurisdictional determinations.

12. 43 Op. Att’y Gen. 15 (1979) [hereinafter C O].

13. See infra Chapter 3, Exemptions From §404.

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 (1980).

16. Memorandum of Agreement Between the Department of the

Army and the Environmental Protection Agency Concern-

ing the De termination of the Geographic Jurisdictio n of the

Section 404 Program and the Application of the Exception s

Under Section 404(f) of the Clean Water Act (Jan. 19, 1989)

[hereinafter 1989 MOA].