On January 23, 2001, in an article titled U.S. Supreme Court Severely Narrows U.S. Army Corps of Engineers' Jurisdiction Over Waters of the United States, I reported on the recent United States Supreme Court Ruling in the case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (January 9, 2001) ("SWANCC").
The General Counsel of the U.S. Environmental Protection Agency and the Chief Counsel of the U.S. Army Corps of Engineers have issued a January 19, 2001 Memorandum to various EPA and U.S. Army Corps of Engineers offices discussing the Court's holding.
In SWANCC, the Supreme Court held that the Corps' regulation which describes certain "waters of the United States", such as intrastate lakes, rivers, streams, and wetlands, "the use, degradation or destruction of which could affect interstate or foreign commerce" as applied to the petitioner's sand and gravel pit pursuant to the "Migratory Bird Rule", exceeds the statutory authority granted to the Corps under Section 404(a) of the Clean Water Act ("CWA"). The "Migratory Bird Rule" refers to an explanation in regulations promulgated by the Corps in the 1980s that waters that are or may be used as habitat for migratory birds are an example of waters, the use, degradation or destruction of which could affect interstate or foreign commerce and therefore are "waters of the United States."
The memorandum states that the Court's actual holding was narrowly limited to CWA regulation of non-navigable, isolated, intrastate waters based solely on their use by migratory birds. The memorandum instructs field staff to ".no longer rely on the use of waters or wetlands as habitat by migratory birds as the sole basis for the assertion of regulatory jurisdiction under the CWA." Importantly, the memorandum provides a comprehensive statement of the position of the two offices with respect to issues not affected by the opinion, such as:
1. State or Tribal Jurisdiction. ".nothing in the SWANCC decision alters the extent of state (or tribal) jurisdiction over aquatic features under state (or tribal) law." Some states have already initiated legislation aimed at protecting intrastate wetlands and others, with statutory authority already in place, are contemplating rules.
2. Jurisdiction over navigable waters, interstate waters, their tributaries and wetlands adjacent to each. ".the Court clearly recognized the CWA's assertion of jurisdiction of traditional navigable waters and their tributaries and wetlands adjacent to them."
3. Connections to interstate commerce other than migratory birds that may confer jurisdiction. "The Court's opinion did not specifically address what other connections with interstate commerce might support the assertion of CWA jurisdiction over "non-navigable, isolated, intrastate waters"." The Corps' regulations (33 C.F.R. 328.3), giving examples of the kinds of activities which "could" affect interstate commerce sufficiently to bring isolated waters within CWA, include waters used by interstate or foreign travelers, waters from which fish or shellfish are taken and are later sold in interstate commerce and waters used for industrial purposes by industries engaged in interstate commerce. Note that the Memorandum admonishes field staff not to base jurisdiction on migratory birds but says nothing about these or other "interstate" activities.
4. Connections with other waters of the United States. "With respect to waters that are isolated, intrastate and non-navigable - jurisdiction may be possible if their use, degradation or destruction could affect other "waters of the United States," thus establishing a significant nexus between the water in question and other "waters of the United States"."
The memorandum then considers the 1985 Riverside Bayview Homes Supreme Court case and states: "The following quotations from the Riverside Bayview decision are provided to remind EPA and Corps field offices that most CWA jurisdiction remains basically intact after the SWANCC decision."
One of the sections quoted states "the regulation of activities that cause water pollution cannot rely on . artificial lines. but must focus on all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this part of the aquatic system . will affect the water quality of the other waters within that aquatic system. For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system."
The memorandum ends by stating "in sum, the holding, the facts, and the reasoning of United States v. Riverside Bayview Homes continue to provide authority for the EPA and the court to assert CWA jurisdiction over, inter alia, all of the traditional navigable waters, all interstate waters, and all tributaries to navigable or interstate waters, upstream to the highest reaches of the tributary system, and over all wetlands adjacent to any and all of those waters."
While this opinion may not be the official policy statement of US EPA or the Corps, a fair reading indicates that if it is adopted as such, those agencies will assert jurisdiction over the highest reaches of tributary systems and all wetlands adjacent to such tributary systems so long as they flow to traditional navigable waters. This interpretation would seem to eliminate from the Corps' jurisdiction only waterbodies that have no hydrological connection to navigable waters of the United States. As mentioned above, some states have indicated their intention to step in to the void created by the SWANCC decision by passing legislation or promulgating rules designed to protect intrastate waters over which the Corps may no longer have jurisdiction.