Clean Water Act Jurisdiction & SWANCC

Clean Water Act Jurisdiction & SWANCC October 2002

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)

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

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

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

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 decisiondid invalidate the reg itself

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

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)

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

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

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

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

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

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

Clean Water Act Jurisdiction & SWANCC