PRACTICAL TOOLS FOR WETLANDS PROTECTION IN AWATERSHED CONTEXT

1
Clean Water Act Jurisdiction SWANCC
October 2002
2
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)

3
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

4
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

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

6
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 decision did invalidate the reg itself

7
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

8
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)

9
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

10
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

11
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

12
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

13
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

14
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/wetla
  nds