Waters of the United States and Section 404 Jurisdiction -

The Supreme Court SWANCC Decision

"Waters of the United States" is a definition critical to Federal jurisdiction under the authority of the Clean Water Act, including Sections 404, 402, 401, and 311. The definition is stated in several slightly differing forms, one of which is found at 33 CFR 328.3(a), as follows:

1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.
2. All interstate waters including interstate wetlands.
3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use degradation, or destruction of which could affect interstate or foreign commerce, including any such waters:
   1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
   2. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
   3. Which are used or could be used for industrial purposes by industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the United States under the definition;
5. Tributaries of waters identified in paragraphs (a)(1)-(4) of this section;
6. The territorial seas;
7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.
8. Waters of the United States do not include prior converted cropland.

Adjacent means bordering, contiguous or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are "adjacent wetlands."

The definition of "navigable waters of the United States" is found at 33 CFR 329.4, as follows: "Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past."

In a recent decision, the Solid Waste Association of Northern Cook County (SWANCC) case, the Supreme Court of the United States determined that the Corps of Engineers exceeded its statutory authority by asserting Clean Water Act jurisdiction under the Section 404 regulatory program over "an abandoned sand and gravel pit in northern Illinois which provides habitat for migratory birds." Although the Court held that the Corps' application of the definition of "waters of the United States", based solely on use by migratory birds, to this situation was invalid, it did not strike down any part of the definition of "waters of the United States" cited above, or any part of the regulations which state those definitions.

The Court's discussion in this case clearly recognized the Clean Water Act's jurisdiction over traditional navigable waters, their tributaries, and adjacent wetlands. Adjacency with respect to wetlands is usually interpreted to as having some apparent hydrologic connection, such as a floodplain or evidence of either surface or shallow subsurface water exchange. The only component of the definition of "waters of the United States" potentially affected by the Court's decision is section (a)(3): "All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce...."

The Corps and EPA have issued a guidance memorandum (full text) directing field offices to consider jurisdiction over these "other waters" which are isolated, non-navigable, and intrastate, on a case by case basis. Section 404 jurisdiction might be asserted based on "other factors", such as

1. a hydrologic, chemical, or physical water quality connection between the isolated water receiving the discharge and non-isolated, navigable, or interstate "waters of the United States", thus establishing a significant nexus between the aquatic site being impacted and those waters;
2. the proposed discharge is into isolated, intrastate waters that are navigable or substantially contribute to interstate or foreign commerce (33 CFR 328.3(a)(3)(i)-(iii)), such as the Great Salt Lake; or
3. discharge into impoundments of tributaries of waters of the United States or wetlands that are adjacent to those impoundments.

The future extent of Clean Water Act jurisdiction under Section 404 and other sections is still to be decided, most likely through implementation in the field and continued legal refinement of the definition of "waters of the United States" and how those waters affect the national interest. In the meantime, most Corps field offices are expected to assert Section 404 jurisdiction over the same general types of wetlands they did before the SWANCC decision, with the possible exception of prairie potholes, isolated ponds, playas, and seeps/springs which are hydrologically and physically isolated from navigable waters or their tributaries. Sites such as sloughs or ponds within the floodplain of a navigable stream or tributary, lakes, reservoirs, oxbows, mudflats, sandflats or marshes that are hydrologically connected through surface or shallow subsurface exchange on a regular basis with "navigable waters" or their tributaries are likely to remain under the Corps jurisdiction for Section 404 purposes.