Subject: INFORMATION: Supreme Court Ruling Concerning
CWA Jurisdiction over Isolated Waters
Date: January 19, 2001
From: Gary S. Guzy
General Counsel, EPA
Robert M. Andersen
Chief Counsel, U.S. Army Corps of Engineers
To: See Distribution
The purpose of this memorandum is to inform you of a significant
new ruling by the Supreme Court pertaining to the scope of regulatory jurisdiction
under the Clean Water Act (CWA) and to inform you of what is and is not affected
by this ruling. Solid Waste Agency of Northern Cook County v. U.S. Army Corps
of Engineers, No. 99-1178 (January 9, 2001) ("SWANCC") involved statutory
and constitutional challenges to the assertion of CWA jurisdiction over isolated,
non-navigable, intrastate waters used as habitat by migratory birds.
Although the SWANCC case itself specifically involved section 404 of the CWA,
the Court's decision affects the scope of regulatory jurisdiction under other
provisions of the CWA as well, including the section 402 NPDES program and the
section 311 oil spill program. Under each of these sections, the Agencies have
jurisdiction over "waters of the United States." CWA § 502(7).
Accordingly, the following discussion applies to any program that involves "waters
of the United States" as that term is used in the CWA, and will be relevant
to any federal, state, or tribal staff involved in implementing sections 402,
404, 311, and any other provision of the CWA which applies the definition of "waters
of the United States."1
In the 5-4 decision, the Supreme Court held that the Corps exceeded its statutory
authority by asserting CWA jurisdiction over "an abandoned sand and gravel
pit in northern Illinois which provides habitat for migratory birds." Slip
op. at 1. The Court did not reach the question of "whether Congress could
exercise such authority consistent with the Commerce Clause, U.S. Const., Art.
I, § 8, cl. 3." Slip op. at 1. It summarized its holding as follows:
"We hold that 33 C.F.R. § 328.3(a)(3) (1999), as clarified and applied
to petitioner's balefill site pursuant to the 'Migratory Bird Rule,' 51 Fed. Reg.
41217 (1986), exceeds the authority granted to respondents under § 404(a)
of the CWA." Id. at 14.2 Although the Court
held that the Corps' application of § 328.3(a)(3) was invalid in SWANCC,
the Court did not strike down §328.3(a)(3) or any other component of the
regulations defining "waters of the United States."
While the Court's actual holding was narrowly limited to CWA regulation of
"nonnavigable, isolated, instrastate" waters based solely on the use
of such waters by migratory birds, the Court's discussion was wider ranging. For
example, the Court clearly recognized the CWA's assertion of jurisdiction over
traditional navigable waters and their tributaries and wetlands adjacent to them.
Slip op. at 6, 10. The Court also expressly declined to address certain other
aspects of the scope of CWA jurisdiction. Slip op. at 10. As a result, the Court's
opinion has led to questions concerning the effect of the decision on other waters
within the definition of "waters of the United States" in agency regulations.
Accordingly, this memorandum describes which aspects of the regulatory definition
of "waters of the United States" are and are not affected by SWANCC.
In light of the Court's "conclu[sion] that the 'Migratory Bird Rule' is
not fairly supported by the CWA," slip op. 6, field staff should no longer
rely on the use of waters or wetlands as habitat by migratory birds as the sole
basis for the assertion of regulatory jurisdiction under the CWA.
As noted above, the Court's holding was strictly limited to waters that are
"nonnavigable, isolated, [and] instrastate." With respect to any waters
that fall outside of that category, field staff should continue to exercise CWA
jurisdiction to the full extent of their authority under the statute and regulations
and consistent with court opinions.
The Court did not overrule the holding or rationale of United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121 (1985), which upheld the regulation of traditionally
navigable waters, interstate waters, their tributaries, and wetlands adjacent
to each. See id. at 123, 129, 139. Each of these categories is still considered
"waters of the United States," as is discussed below in paragraphs 4
- Because the Court's holding was limited to waters that are "non-navigable,
isolated, [and] intrastate," the following subsections of the regulatory
definition of "waters of the United States"3
are unaffected by SWANCC:
"(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" (see, e.g., SWANCC, slip
op. at 7-8);
"(2) All interstate waters including interstate wetlands" (see, e.g.,
CWA section 303(a)(1); Hodel v. Virginia Surface Mining and Reclamation Ass'n,
452 U.S. 264, 282 (1981));
"(4) All impoundments of waters otherwise defined as waters of the United
States under the definition [except subsection (a)(3) waters] " (implicit
in SWANCC, slip. op. at 6);
"(5) Tributaries to waters identified in paragraphs (a)(1)[, (2), and]
(4) of this section" (see, e.g., SWANCC, slip op. at 10);
"(6) The territorial seas" (see CWA section 502(7)); and
- "(7) Wetlands adjacent to waters (other than waters which
are themselves wetlands) identified in paragraphs (a)(1)[,(2), (4), (5), and]
(6) of this section" (see, e.g., SWANCC, slip op. at 6; Riverside Bayview
at 134-35, 139).4
The following subsections of the regulatory definition of "waters of the
United States" are, or potentially are, affected by SWANCC:
"(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 . . ."
Waters covered solely by subsection (a)(3)5 that
could affect interstate commerce solely by virtue of their use as habitat by migratory
birds are no longer considered "waters of the United States." The Court's
opinion did not specifically address what other connections with interstate commerce
might support the assertion of CWA jurisdiction over "nonnavigable, isolated,
intrastate waters" under subsection (a)(3). Therefore, as specific cases
arise, please consult agency legal counsel.
The Court's opinion expressly reserved the question of what "other waters"
were intended to be addressed by CWA § 404(g)(1) (regarding state 404 programs).
Factors not addressed in SWANCC may have a bearing on whether subsection (a)(3)
may still be relied on as the basis for asserting CWA jurisdiction over certain
"other waters." Jurisdiction over such "other waters" should
be considered on a case-by-case basis in consultation with agency legal counsel.
Factors that may be relevant to the analysis under 33 C.F.R. 328.3(a)(3) include,
but are not limited to, the following:
- With respect to waters that are isolated, intrastate, and nonnavigable--jurisdiction
may be possible if their use, degradation, or destruction could affect other "waters
of the United States," thus establishing a significant nexus between the
water in question and other "waters of the United States;"
- With respect to waters that, although isolated and intrastate, are navigable
-- jurisdiction may also be possible if their use, degradation, or destruction
could affect interstate or foreign commerce (examples of ways the use, degradation
or destruction of a water could affect such commerce are provided at 33 CFR 328.3(a)(3)(i)
Impoundments of subsection (a)(3) waters, tributaries of (a)(3) waters, and
wetlands adjacent to subsection (a)(3) waters should be analyzed on a case-by-case
basis in accordance with subparagraphs 5.a and 5.b immediately above. Such impoundments,
tributaries and adjacent wetlands are also part of the "waters of the United
States" if the waters they impound, are tributaries to, or are adjacent to
are themselves "waters of the United States."
The Supreme Court's decision in SWANCC does provide an important new limitation
on how and in what circumstances the EPA and the Corps can assert regulatory authority
under the CWA. However, this decision's limited holding must be interpreted in
light of other Supreme Court and lower court precedents, unaffected by the SWANCC
decision, which precedents broadly uphold CWA jurisdictional authority. The following
quotations from the Riverside Bayview decision are provided to remind EPA and
Corps field offices that most CWA jurisdiction remains basically intact after
the SWANCC decision.
The Supreme Court's Riverside Bayview decision (at 123, 139) upheld the legality
of the basic provisions of the Corps' CWA jurisdictional regulation, which the
Court described (at 129) as follows: "The [Corps and EPA jurisdictional]
regulation extends the Corps' authority under Section 404 to all wetlands adjacent
to navigable or interstate waters and their tributaries."7
The Court in Riverside Bayview also stated, at 132-33, that:
. . . Section 404 originated as part of the Federal Water Pollution Control Act
Amendments of 1972, which constituted a comprehensive legislative attempt 'to
restore and maintain the chemical, physical, and biological integrity of the Nation's
waters.' CWA§ 101, 33 U.S.C. § 1251. This objective incorporated a broad,
systemic view of the goal of maintaining and improving water quality: as the House
Report on the legislation put it, "the word 'integrity' . . . refers to a
condition in which the natural structure and function of ecosystems is [are] maintained.
. . . Protection of aquatic ecosystems, Congress recognized, demanded broad federal
authority to control pollution, for '[w]ater moves in hydrologic cycles and it
is essential that discharge of pollutants be controlled at the source.' . . .
In keeping with these views, Congress chose to define the waters covered by the
In Riverside Bayview, at 133-134, the Court quoted with approval the following
language from the preamble to the Corps' 1977 regulations:
" The regulation of activities that cause water pollution cannot rely
on . . . artificial lines . . . but must focus on all waters that together form
the entire aquatic system. Water moves in hydrologic cycles, and the pollution
of this part of the aquatic system, regardless of whether it is above or below
an ordinary high water mark, or mean high tide line, will affect the water quality
of the other waters within that aquatic system. For this reason, the landward
limit of Federal jurisdiction under Section 404 must include any adjacent wetlands
that form the border of or are in reasonable proximity to other waters of the
United States, as these wetlands are part of this aquatic system."
The Court went on to conclude, at 134, that: "In view of the breadth of
federal regulatory authority contemplated by the Act itself . . . the Corps' ecological
judgment about the relationship between waters and their adjacent wetlands provides
an adequate basis for a legal judgment that adjacent wetlands may be defined as
waters under the Act."
- In sum, the holding, the facts, and the reasoning of United States v. Riverside
Bayview Homes continue to provide authority for the EPA and the Corps to assert
CWA jurisdiction over, inter alia, all of the traditional navigable waters, all
interstate waters, and all tributaries to navigable or interstate waters, upstream
to the highest reaches of the tributary systems, and over all wetlands adjacent
to any and all of those waters.
Any questions not answered by this guidance should be addressed to legal staff
attorneys Cathy Winer (EPA) at (202) 564-5494 or Lance Wood (Corps) at (202) 761-8556.
Assistant Administrator for Water (4101)
Assistant Administrator for Solid Waste and Emergency Response (5101)
Assistant Administrator for Enforcement and Compliance Assurance (2201A)
Commander, U.S. Army Corps of Engineers
Deputy Commander, Civil Works, USACE
Regional Administrators, Regions I-X
Commanders, Major Subordinate Commands, USACE
Commanders, Engineer Districts, USACE
Elaine Davies, Acting Director, Office of Emergency and Remedial Response
Office Directors, Office of Water
Water Division Directors, Regions I-X
Regional Counsels, Regions I-X
Division and District Counsels, USACE
1The SWANCC decision
only addresses the scope of regulatory jurisdiction under the federal CWA. Therefore,
the scope of regulatory jurisdiction over aquatic features under other federal
statutes is not affected by this decision. In addition, the Clean Water Act explicitly
provides that nothing in the Act "shall...be construed as impairing or in
any manner affecting any right or jurisdiction of the States with respect to the
waters (including boundary waters) of such States." 33 U.S.C. § 1370.
Therefore, nothing in the SWANCC decision alters the extent of State (or tribal)
jurisdiction over aquatic features under State (or tribal) law.
233 C.F.R. § 328(a)(3) describes a subset
of "waters of the United States": "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 "Migratory Bird Rule" refers to an explanation, in the preambles
to 1986 Corps regulations and 1988 EPA regulations, that waters that are or may
be used as habitat for migratory birds are an example of waters whose use, degradation,
or destruction could affect interstate or foreign commerce and therefore are "waters
of the United States." 51 Fed. Reg. 41217 (1986); 53 Fed. Reg. 20765 (1988).
3Different CWA regulations contain slightly different
formulations of the definition. For simplicity's sake, this memo refers to the
Corps' version at 33 C.F.R. § 328.3(a). Other versions appear at, e.g., 40
CFR §§ 110.1, 112.2, 116.3, 117.1, 122.2, 230.3(s), and 232.2.
4"Adjacent" is defined by regulation
as "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.' " 33 C.F.R. § 328.3(d).
This definition was approved in Riverside Bayview and is not undercut by SWANCC.
5Subsection (a)(3) is intended to cover waters
that are not covered by the other subsections of § 328.3(a).
6An example of an intra-state lake that is "isolated"
(i.e., not part of the tributary system of traditional navigable waters or interstate
waters) but which might reasonably be considered "waters of the United States"
under subsections (a)(1) or (a)(3) is the Great Salt Lake in Utah. That "isolated"
lake is navigable-in-fact (see United States v. Utah, 403 U.S. 9 (1971)), and
has substantial connections with interstate commerce (see, e.g., Hardy Salt Co.
v. Southern Pacific Transportation Co., 501 F. 2d 1156 (10th Cir. 1974)).
7The one specific part of the Corps' CWA jurisdiction
that the Court did not reach in Riverside Bayview related to "wetlands that
are not adjacent to bodies of open water" under 33 C.F.R. 328.3(a)(2) or
(3). Riverside Bayview, 474 U.S. at 131, n. 8.
Questions and feedback should be directed to Mike Ruth (Mike.Ruth@dot.gov, 202-366-9509).