Corps and EPA Issue Guidance on Jurisdiction

Lawrence R. Liebesman

On Jan. 15, 2003, the Corps and EPA released a long awaited joint guidance memorandum and an Advanced Notice of Proposed Rule Making (ANPRM) to clarify the Supreme Court’s January 2001 decision of Solid Waste Agency of Northern Cook County v. Corps, 531 U.S. 159 (2001) (SWANCC). That decision, which eliminated Clean Water Act (CWA) jurisdiction over isolated waters and wetlands based on actual or potential use by migratory birds, has caused great confusion due to lack of consistency in interpretation by Corps districts around the country.

The joint guidance memorandum reaffirms the agencies’ prior narrow interpretation of SWANCCby stating that the decision only expressly eliminated the “Migratory Bird Rule” as a basis of CWA jurisdiction over isolated waters and wetlands. (“The EPA and the Corps are now precluded from asserting CWA jurisdiction in such situations including waters such as isolated non-navigable, intrastate vernal pools, playa lakes and pocosins.”) However, the guidance also states that SWANCC “also calls into question whether CWA jurisdiction over isolated waters could also be predicated on the other factors” such as “use of water as habitat for birds protected by Migratory Bird treaties, use of water as habitat by Federally protected endangered or threatened species, or use of the water to irrigate crops sold in interstate commerce.” In the case of those isolated waters, the guidance instructs the Corps field staff to seek “formal project-specific Headquarters approval prior to asserting jurisdiction over such waters, including permitting and enforcement actions.”

However, the guidance does not further clarify the situations where jurisdiction may be based on an asserted tributary connection to traditionally navigable waters – which is by far the most common method the agencies utilize to assert jurisdiction. Instead, the guidance cites the cases that have interpreted SWANCCdifferently with respect to jurisdiction over these waters and their adjacent wetlands. The agencies note that the majority of courts “did not change the principle that CWA jurisdiction extends to tributaries of navigable waters.” The guidance also cites those cases that have interpreted SWANCC as covering even tributaries that flow intermittently or that are connected by man-made ditches and canals, such as Headwaters v. Talent Irrigation District, 243 F. 3d 526 (9th Cir. 2001), or where water must travel a substantial distance and through man-made structures before reaching navigable water, such as U.S. v. Buday, 138 F. Supp 2d. 1282 (D. Mont. 2001).

The guidance, however, also notes the cases that take a narrow view of jurisdiction by excluding CWA jurisdiction over tributaries that are not contiguous or adjacent to navigable waters. These include Rice v. Harken Oil, 250 F. 3d 264 (5th Cir. 2001) and U.S. v. Newdunn, 195 F. Supp 2d. 751 (E.D. Va. 2002). Thus, the guidance simply advises

Corps Field staff to “make jurisdictional and permitting decisions on a case-by-case basis, considering this guidance, applicable regulations and any additional relevant court decisions.” This means that, for the most part, the regulated community must carefully monitor case law developments in particular jurisdictions, pending rulemaking by the agencies and/or a possible future Supreme Court decision.