The United States Supreme Court has been called upon repeatedly in the last five years to define the limits of federal regulatory jurisdiction over wetlands, isolated waters and other non-navigable water bodies. In the latest development under the federal Clean Water Act ("CWA"), the Supreme Court declined to review three federal appeals court decisions that uphold broad authority for the U. S. Army Corps of Engineers ("Corps") to regulate activities affecting tributaries and wetlands located far from, but nevertheless hydrologically connected to, traditionally navigable waters. These decisions -- and the Supreme Court's willingness to let them stand -- signify a continuing judicial trend in recognizing expansive federal jurisdiction over wetlands and other non-navigable waters.
One of the cornerstones of the CWA is Section 404, which requires that persons obtain a permit from the Corps prior to discharging dredged or fill material into jurisdictional "waters of the United States. "33 U. S. C. §§ 1344, 1362(7). The Corps regulations implementing the CWA define "waters of the United States" to include traditionally navigable waters, tributaries to those waters and adjacent wetlands, even when seasonal. 33 C. F. R. § 328. 3(a).
Although the Supreme Court ruled in SWANCC v. U. S. Army Corps of Engineers, 531 U. S. 159 (2001), that activities impacting isolated wetlands with no hydrologic connection to navigable waters did not require a Section 404 permit, federal courts have since struggled to delineate the authority of the Corps to require dredge and fill permits for waters which are far removed from traditional navigable waters, but which are nevertheless hydrologically connected to those waters.
In one of the three cases the Supreme Court recently declined to review, U. S. v. Deaton, 332 F. 3d 698 (4th Cir. 2003), owners of an upland property in Virginia that contained wetlands were charged with violating the CWA for failing to obtain a Section 404 permit from the Corps when they excavated a ditch and deposited the fill into the wetlands. Significantly, the wetlands were not adjacent to navigable water. Instead, water from the wetlands drained into a roadside ditch, which flowed into a culvert and a second roadside ditch before flowing into a series of creeks connected with a navigable waterway.
The Fourth Circuit deferred to the Corps' interpretation that the CWA provided it with authority to regulate the placement of fill material into these wetlands because such regulation represented a rational approach to addressing the "aggregate effect" that discharges into tributaries such as roadside or other man-made ditches could have on downstream navigable waters. The Court also found that the Corps' exercise of regulatory authority was proper in light of SWANCC because there was a "significant nexus between the wetlands and 'navigable waters'" by virtue of the roadside ditch connecting the wetland to a navigable water body. A subsequent Fourth Circuit decision, Newdunn Associates v. Army Corps of Engineers, 344 F. 3d 407 (4th Cir. 2003), echoed this decision and is among the cases that the Supreme Court declined to review.
In a third case, U. S. v. Rapanos, 339 F. 3d 447 (6th Cir. 2003), a Michigan property owner filled wetlands located between 11 and 20 miles from a navigable-in-fact waterway despite warnings not to do so from a state agency and the U. S. Environmental Protection Agency. The property owner was convicted of criminal violations of the CWA and sentenced to three years probation and $185,000 in fines. The Sixth Circuit upheld the conviction, adopting the reasoning of the Fourth Circuit in Deaton, and rejecting the property owners argument that SWANCC limited the Corps jurisdiction to wetlands directly abutting traditional navigable waters of the United States. The Sixth Circuit concluded that, because the wetlands were adjacent to a drainage, and that drainage itself provided a hydrologic connection to the navigable waterway, a sufficient nexus existed for the Corps to require a Section 404(a) permit.
In declining to review these federal appellate court decisions, the Supreme Court has let stand opinions that broadly construe the Corps jurisdiction to regulate wetlands, notwithstanding the narrower view expressed in SWANCC. As a result, the Corps is likely to continue to aggressively assert jurisdiction over wetlands and other non-navigable water bodies that are geographically remote from navigable surface waters, but which have some hydrologic connection -- through man-made ditches, culverts and various types of seasonal or intermittent drainages -- to those waters.
Landowners, developers, contractors, agricultural interests and public agencies will need to be increasingly vigilant in delineating potential wetland areas before proceeding with activities that could cause impacts falling within Corps jurisdiction. The failure to properly identify wetlands and other waters potentially subject to CWA jurisdiction and, when necessary, obtain Section 404 permits or adopt measures to mitigate impacts, may result in the need to defend costly enforcement actions that could result in civil or criminal penalties.
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