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Clean Water Act Jurisdiction

&

SWANCC

October 2002

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Navigable Waters - Basics• CWA applies to “navigable waters,”

broadly defined in § 502(7) as “waters of the United States”

• 1977 CWA reauthorization explicitly recognized jurisdiction over wetlands– Also added flexibility in § 404(f) activity

based exemptions

• Rivers and Harbors Act jurisdiction distinguished (see 33 CFR Part 329)– Geographic scope more limited

(traditionally navigable waters)

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Navigable Waters - Wetlands

• Wetlands – Inundated or saturated by surface or

groundwater that support under normal circumstances prevalence of vegetation adapted to life in saturated soil conditions• 33 C.F.R. 328.3(b); 40 C.F.R. 232.2

– ‘87 manual

• Riverside Bayview: protection for adjacent wetlands as part of the broader aquatic ecosystem

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Navigable Waters - Regs

• Similar regulatory definitions across multiple CWA programs, e.g.:

– 404 dredged & fill material: 33 C.F.R. 328.3 (Corps); 40 C.F.R. 232.2 (EPA)

– 402 NPDES program: 40 C.F.R. 122.2

– 311 spill remediation: 40 C.F.R 300.5

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Navigable Waters Reg -Overview

• Waters used in interstate or foreign commerce

• Interstate waters• Intrastate lakes, rivers, streams,

wetlands the use, degradation or destruction of which could affect interstate commerce– At issue in SWANCC

• Impoundments of waters of the U.S• Tributaries of above waters• Territorial sea • Wetlands adjacent to above waters

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SWANCC Decision• 404 permit denial for landfill sited in

isolated manmade ponds used by migratory birds– Statutory issue (CWA authority)– Constitutional issue (Commerce clause)

•Not reached by court

• January 9, 2001: Court finds CWA does not extend to isolated intrastate non-navigable waters solely on basis of migratory bird use– Addressed reg as applied, did not actually

invalidate• Note: Within 4th Circuit (MD, VA, WVA, NC,SC) the 1997

Wilson decision did invalidate the reg itself

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SWANCC Implications

• Impacts all CWA programs whose jurisdiction depends on meaning of “navigable waters” (e.g., 404, 402, 303, 311) as well as Oil Pollution Act

• Does not affect other statutes’ reach (e.g., Swampbuster not affected)

• January 19, 2001, joint Corps/EPA legal memorandum analyzes opinion

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SWANCC Implications [cont]

• Waters no longer jurisdictional:– Isolated intrastate non-navigable

waters, with use by migratory birds as only basis for CWA jurisdiction

• Questionable jurisdictional status– Isolated intrastate non-navigable

waters with links to interstate commerce as only basis for jurisdiction (e.g., used to irrigate crops sold in interstate commerce)

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SWANCC Implications [cont]

• Waters not at issue in SWANCC– Waters used in interstate commerce

& tidal waters– Interstate waters– Impoundments of jurisdictional

waters– TRIBUTARIES to jurisdictional waters– Territorial seas– WETLANDS ADJACENT to

jurisdictional waters

• Although not at issue in SWANCC, tributary/adjacency issues take on added importance

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Tributary/Adjacency Issues• Take on added importance as can no

longer rely solely on migratory bird use

• What factors are relevant to establishing wetlands adjacency?– Bordering, contiguous, neighboring

• 40 CFR 230.3(b); 33 CFR 328.3(c)

• What factors are relevant to establishing tributary status?– Lateral limits and OHWM (33 CFR 328.4 &

328.3(e))

– Effect of manmade conveyances

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Evolving Case Law

• Post SWANCC caselaw still evolving

• Cases have arisen in context of tributary or adjacency issues

– Most courts have found SWANCC did not impact tributary/adjacency jurisdiction

– However, some have read SWANCC to mean waters must be actually navigable or adjacent to such waters for CWA jurisdiction

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Next Steps

• Agencies considering further guidance to clarify CWA jurisdiction in light of SWANCC

• Agencies also have stated their intent in testimony on SWANCC to undertake rulemaking– Likely will address jurisdictional status of

isolated waters and provide clarification with regard to tributary and adjacency issues

– Will be issued as proposed rule for comment

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Assistance Grants to States

• EPA Wetland Program Development Grants (WPDGs)– Encourage comprehensive wetlands

program development – Build S/T/L government capacity to protect

wetlands and other aquatic resources– Promote coordination and acceleration of

initiatives relating to elimination of water pollution

• Priority areas: monitoring, compensatory mitigation, and vulnerable wetlands

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Grants to States [cont]

• Eligibility for WPDGs– States, Tribes, local government agencies– Interstate agencies, intertribal consortia,– National, nonprofit, non-governmental

organizations

• Match requirement of 25%• FY03 Application Process

– Competitive process, largely run through Regions

• For more info, see: http://www.epa.gov/owow/wetlands