ANPRM Solicts Comment on Scope of CWA Jurisdiction Post-SWANCC

Dan P. Kravets

On Jan. 15, 2003, the Army Corps of Engineers and the Environmental Protection Agency (Agencies) jointly published an Advanced Notice of Proposed Rulemaking (ANPRM) on the Clean Water Act (CWA) regulatory definition of “waters of the United States.” The stated purpose of the ANPRM is to obtain comment on issues associated with the scope of waters that are subject to the CWA in light of the U.S. Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). In SWANCC, the U.S. Supreme Court held that the Corps exceeded its authority under Section 404 of the CWA by asserting jurisdiction over isolated, intrastate, non-navigable waters solely on the basis of the migratory bird rule. The migratory bird rule stated, among other things, that waters that are used as habitat by migratory birds that cross state lines are “waters of the United States.” In addition to invalidating the migratory bird rule as a basis for CWA jurisdiction, the rationale used by the Court in SWANCC calls into question whether the Agencies’ other CWA jurisdictional bases are consistent with the congressional intent to regulate “navigable” waters.

The ANPRM also includes an Appendix containing a Joint Memorandum providing guidance on the effect that the SWANCC holding has on the Agencies’ CWA jurisdiction. While the new guidance supersedes all prior guidance, it offers little additional clarification on the effect of the SWANCC holding. Stating the obvious, the guidance directs field staff not to assert CWA jurisdiction over isolated waters that are both intrastate and non-navigable, where the sole basis available for asserting CWA jurisdiction rests on any of the factors listed in the migratory bird rule. The guidance also recognizes that the SWANCC decision may affect the scope of regulatory jurisdiction under programs other than the Section 404 dredge and fill permit program, including the Section 402 NPDES program, the Section 311 oil spill program, Section 401 water quality certification, and water quality standards under Section 303, because the scope of the Agencies’ authority in these other programs is also limited to “waters of the United States.”

Of potential value is a second directive in the new guidance that requires field staff to seek formal, project-specific Headquarters approval before asserting jurisdiction over waters based on factors listed in 33 CFR 328.3(a)(3)(i)-(iii) (note that this article and the ANPRM reference only the Corps regulations at 33 CFR, but that the Agencies specifically recognize that there are counterpart and substantively similar regulatory definitions that exist for EPA under 40 CFR). Section 328.3(a)(3)(i)-(iii) defines “waters of the United States” to include all other waters the use, degradation or destruction of which could affect interstate or foreign commerce, including: (i) use by interstate or foreign travelers for recreational or other purposes, (ii) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce, or (iii) which are used or could be used for industrial purposes by industries in interstate commerce. The basis for requiring Headquarters approval stems from the Agencies’ uncertainty whether, after SWANCC, there remains any basis for jurisdiction under the rationales of 33 CFR 328.3(a)(3)(i)-(iii). The guidance adds that within the states comprising the Fourth Circuit, CWA jurisdiction under 33 CFR 328.3(a)(3) in its entirety has been precluded since 1997 by the Fourth Circuit’s ruling in United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). The requirement to seek Headquarters approval may prove useful to entities challenging jurisdiction solely on the basis of 33 CFR 328.3(a)(3) and should also result in more consistent jurisdictional determinations.

The Joint Memorandum also includes a recitation of federal district and appellate court opinions that have addressed the effect of the SWANCC holding on CWA jurisdiction. The Agencies’ review is divided into four categories of cases that affect: (1) isolated, intrastate waters that are non-navigable; (2) traditional navigable waters; (3) adjacent wetlands; and (4) tributaries. For every case within each of these categories holding that the SWANCC decision requires the Agencies to limit its jurisdictional authority, there is another case holding that the SWANCC decision should be applied narrowly to its facts with little regard to the decision’s rationale. The Agencies’ review of these post-SWANCC decisions highlights the need for clarification.

The stated goal of the Agencies in the ANPRM is to develop proposed regulations that will clarify what waters are subject to CWA jurisdiction after the SWANCCholding. To achieve this goal, the Agencies are soliciting comments on a variety of specific issues, as well as inviting comment on any other revisions that may be appropriate to the existing regulations with respect to the extent of jurisdiction under the CWA.

Specifically, the Agencies asked for comments on whether the factors listed in 33 CFR 328.3(a)(3)(i)-(iii) (cited above) or any other factors provide a basis for determining CWA jurisdiction over isolated, intrastate, non-navigable waters, and if so, under what circumstances. The Agencies also asked the question of whether the regulations should define “isolated waters,” and if so, what factors should be considered in determining whether water is or is not isolated for jurisdictional purposes. In addition, the Agencies solicited comments from State and local agencies on the implementation of Total Maximum Daily Loads (TMDLs) and attainment of water quality standards.

It is clear from the discussion in the ANPRM that the Agencies recognize that Congress authorized federal regulation over a limited area of jurisdiction under the CWA. The Agencies correctly explain that SWANCChighlights the role of states in protecting waters not addressed by the CWA. In addition to the often cited objective “… to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 USC 1251(a), the CWA also states “[I]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the [Agencies]….” 33 USC 1251(b). As a result, the Agencies are soliciting data and information on the availability and effectiveness of other federal or state programs for the protection of aquatic resources and on the functions and values of certain water resources, such as wetlands, that may be affected by modification of the regulations required by the holding in SWANCC.

In answering the questions raised by the Agencies and providing comment, the Agencies request that submissions include any information (e.g., scientific and technical studies, data, analysis of issues and impacts, etc.), supporting comments, and specific recommendations on how to implement any recommended modifications. The Agencies originally requested comments on the ANPRM to be submitted by March 3, 2003. In response to comments from the public requesting additional time to fully analyze the issues, gather requested information, and prepare comments, the Agencies extended the comment due date to April 16, 2003. Refer to the Federal Register notices published on Jan. 15, 2003 (68 Fed. Reg. 1991) and Feb. 28, 2003 (68 Fed. Reg. 9613) for specific details on how to submit comments.