Corps Regulatory Program

1. Corps Regulatory Program Clean Water Act Section 404:Jurisdictional Issue Questions related to theSWANCC Decision

2. SWANCC Background SWANCC eliminated CWA jurisdiction over isolated watersthat areintrastateandnon-navigable, where thesole basisfor asserting CWA jurisdiction is the actual or potential use of the waters as habitat for migratory birds that cross state lines in their migrations. Both the Corps and EPA are now precluded from asserting CWA jurisdiction in such situations.

3. “Migratory Bird Rule” - Four Criteria "In 1986, in an attempt to 'clarify' the reach of its jurisdiction, the Corps stated that § 404(a) extends to intrastate waters . . . • which are or would be used as habitat by birds protected by Migratory Bird Treaties; or . . . • which are or would be used as habitat by other migratory birds which cross state lines; or . . . • which are or would be used as habitat for endangered species; or . . . • used to irrigate crops sold in interstate commerce . . This last promulgation has been dubbed the 'Migratory Bird Rule'. . ."

4. SWANCC Background Although SWANCC did not specifically address other possible bases of jurisdiction over such waters, it raised several questions/issues, which must be addressed by further policy guidance and/or rulemaking . . .

5. Issues Raised by SWANCC Are there any remaining basis for jurisdiction under the other rationales of 33 CFR 328.3(a)(3)(i)-(iii) over isolated, non-navigable, intrastate waters (i.e., use of the water by interstate or foreign travelers for recreational or other purposes; the presence of fish or shellfish that could be taken and sold in interstate commerce; use of the water for industrial purposes by industries in interstate commerce)?

6. Issues Raised by SWANCC What is the precise definition of the term "navigable waters?“ Guidance/rulemaking is likely to establish threshold indicators for the navigable use of an isolated intrastate water body, either alone or in combination with indicators of interstate commerce, necessary to support CWA jurisdiction.

7. Issues Raised by SWANCC What is the precise definition of the term "tributary?“ Guidance/rulemaking is likely to provide criteria for determining the specific circumstances in which water conveyances such as ditches, pipes, culverts, pumps, gutters, sewers, sheetflow, and groundwater would qualify as tributary connections. Guidance/rulemaking could also specify a frequency and duration of water flow necessary to distinguish tributary water courses from non-tributary water courses, and it may establish the relevant field criteria (e.g., OHWM, hydric soils, vegetation adaptations, etc.) for such differentiation when water isn’t always present.

8. Issues Raised by SWANCC What is the precise definition of the term "adjacent wetlands?“ Guidance/rulemaking might include precise definitions of the terms “bordering, contiguous, or neighboring” that are included in current Corps regs on adjacent wetlands. In particular, rulemaking may provide specific circumstances (e.g., distance, nature of hydrologic link) in which non-contiguous wetlands are considered “bordering” and/or “neighboring.” Rulemaking could expand the concept of adjacency to include ‘waters’ in addition to wetlands.

9. Post-SWANCC Rulemaking Issues Tributaries Adjacent Wetlands Traditional Navigable Water Interrupted Flow? (Natural Subsurface Connection?) Contiguous Wetland Connection through Pumps/Sewers? Ground Water Connection? Man-Made Ditches? P How Far from water? What is “Neighboring?” “Bordering?” Intermittent? Ephemeral? (Frequency of Flow?) Culverts/ Pipes? (How Long?) ? How Many Berms? Sheetflow over Uplands? Navigation? Interstate Commerce Connection? Either or Both? Isolated Intrastate Waterbodies

10. Post-SWANCC Guidance Questions When will the Corps engage in rulemaking regarding the SWANCC decision? What is the timetable? Who are the individuals that will be involved, and what role will the regulated community play in the process? The Administration has not yet decided which issues should be the subject of rulemaking or policy guidance, nor has it committed to any timetable. Under the terms of 1979 Attorney General opinion, the EPA has the final authority over the scope of geographic jurisdiction under all CWA programs. In light of this, the Corps must defer to EPA; it can not act unilaterally to issue policy guidance or to engage in rulemaking. The public would have no role in the issuance of policy guidance, but it seems more likely that rulemaking will be necessary, as required by the Administrative Procedures Act. The public will be invited to provide comment on proposed rulemaking, and those comments will be addressed in any final rule.

11. Post-SWANCC Guidance Questions When will more definitive Guidance be issued from OCE to the Districts on isolated wetlands? The Corps can not unilaterally issue guidance that in any way addresses the geographic scope of CWA jurisdiction – EPA has final authority. Any such guidance is likely to be produced jointly with the EPA, either as policy guidance, or more likely, in a rulemaking. However, the Corps has no control over the timing of either effort

12. Post-SWANCC Guidance Questions Given the court decisions in Rice v. Harken Exploration Co. 250 F.3d 264 (5th Cir 2001) and United States v. Needham No. 01-CV-1897 (USDC WD of La. 2002) what is the position of the Corps in the United States 5th Circuit with regard to connectivity of jurisdictional areas to navigable waters? Because of the disparity of post-SWANCC decisions in the lower courts, and of the fact that the EPA has final authority on the scope of jurisdiction under all CWA programs, the Corps has not taken any official administrative position in response to any court decision. These matters are currently under consideration at Administration levels of the involved agencies, and they will likely be addressed in subsequent policy guidance and/or rulemaking.

13. Post-SWANCC Guidance Questions If uplands are clearly between a wetland area and a “body” of water, does this constitute isolation? Since no decision has yet been made as to whether subsurface hydrologic connections establish the "tributary" status of up-gradient aquatic areas, the exact nature of "isolation" remains uncertain. However, under current Corps regulations, wetlands that that are separated from waters of the United States by upland areas may still be jurisdictional as adjacent wetlands. However, the continued viability of this regulation is also under consideration at the Administration levels of the involved agencies, and this issue, like many others, is expected to be addressed in depth in subsequent policy guidance and/or rulemaking.

14. Post-SWANCC Guidance Questions How does the size (area) of a wetland influence whether or not it is isolated? If a 0.5 acre, a 5 acre, or a 25-acre wetland is totally surrounded by uplands - not connected in any way to any body of water/receiver stream, is it isolated? To date, there has been no consideration given to whether the size of a wetland has any effect on its jurisdictional status under the CWA. However, it is possible that, as a practical consideration, some such limit could be imposed in policy guidance and/or through rulemaking. Although it may be reasonable to concede that if a wetland is not connected in any way to waters of the United States, it is isolated, subsequent guidance/rulemaking is likely to address the issue of isolation more precisely.

15. Post-SWANCC Guidance Questions The SWANCC ruling specifically mentioned that the groundwater table should not be considered when determining adjacency? Are all Districts complying with this? Pending further guidance/rulemaking, the only areas that are clearly excluded from CWA jurisdiction are isolated, intrastate, non-navigable waters, where the sole basis for jurisdiction is the use by migratory birds. This has been clearly communicated to all Corps Districts, and we believe that all Districts are complying. All other potential bases for jurisdiction are at least arguable, and are under consideration by the Administration in the development of policy guidance and/or rulemaking.

16. Post-SWANCC Guidance Questions Does the flood zone have any bearing in isolated status? Not all Flood Zone A land is located along a stream, and some A flood zones are inundated only due to hurricane events. How does flooding with this kid of frequency (once every 100 years) fit with determinations of isolation and connectivity? This issue is under interagency Administration-level consideration, and it remains to be addressed in subsequent policy guidance and/or rulemaking.

17. Post-SWANCC Guidance Questions Can isolated wetlands be found within levee systems that are under pump? Like the issues of subsurface connections and periodic overflows across uplands, the Administration is considering the propriety of including human-controlled connections, such as pumped water, as possible "tributary" connections between otherwise isolated aquatic areas and waters of the United States.

18. Post-SWANCC Guidance Questions How consistent are Corps districts’ interpretations of isolation? There is considerable inconsistency among Corps district interpretations of jurisdiction over aquatic areas that are arguably "isolated." However, since the Corps does not have the authority to unilaterally issue even interim guidance, District must rely on their locally-adopted, pre-SWANCC practices for making "tributary" and "adjacent wetland“ determinations. Absent clear policy guidance or regulations, such determinations remain subject to legal challenge.

19. SWANCC and Corps 404 Program Questions?