What Wetlands Are Regulated? Jurisdiction of the §404 Program

AuthorMargaret 'Peggy' Strand/Lowell Rothschild
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
• 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
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.
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].

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