Utah Bar Journal

Look Before You Fill!

by H. Michael Keller

I. INTRODUCTION
Development in and around waters and wetlands, including seasonally dry channels and washes, can trigger the need to obtain a dredge and fill permit from the Army Corps of Engineers ("Corps") under ¤ 4041 of the federal Clean Water Act.2 Failure to comply can subject a developer to enforcement action enjoining the project and assessing civil and criminal fines and sanctions. The 11th Circuit Court of Appeals recently affirmed the conviction and sentencing of a Florida man to three years in jail, three years of supervised release, and payment of restitution and a $25,000 fine for illegally filling wetlands to make a ramp to transport his jet skis to nearby Lake Okeechobee.3

II. THE ROLE AND ORGANIZATION OF THE CORPS

A. PERMITTING PROGRAMS.
The Corps is the primary permitting authority under ¤ 404, but EPA holds ultimate veto authority over the Corps' ¤ 404 permitting decisions.4 The Corps administers the ¤ 404 permitting program in conjunction with its permitting program under the Rivers and Harbors Appropriation Act of 1899.5

B. DIVISIONS AND DISTRICTS.
The Corps is highly decentralized, with eight Divisions, each headed by a Division Engineer, and thirty-six District offices, each headed by a District Engineer, throughout the United States. Utah lies within the Sacramento and Los Angeles Districts of the South Pacific Division headquartered in San Francisco and is directly served by field offices in Woods Cross and St. George. Most permitting and delineation decisions are handled at or under the direction of the District Engineer with input from local field offices.

III. SECTION 404 REGULATORY FRAMEWORK
The ¤ 404 program is implemented through regulations issued by the Corps6 and EPA.7 Regulatory interpretations are issued from time to time by the Corps in the form of regulatory guidance letters. Guidance on interagency issues is provided through various memoranda of agreement between the Corps, EPA, and other agencies on such matters as enforcement, jurisdiction, and mitigation.

IV. SECTION 404 JURISDICTION.
Jurisdiction under ¤ 404 depends upon whether the waters or wetlands are regulated "waters of the United States" and whether the contemplated development activities involve a discharge for which a permit must be obtained.

"WATERS OF THE U.S."
Geographic jurisdiction under the Clean Water Act extends to "navigable waters," which Congress defined as "the waters of the United States, including the territorial seas."8 The statute offers little guidance on how far Congress intended to extend jurisdiction beyond waters considered commercially navigable under the Rivers and Harbors Act.

Most lower federal courts interpreting the geographic reach of Clean Water Act jurisdiction were unconstrained by traditional concepts of navigability and took a broad Commerce Clause9 approach to the geographic reach of the Clean Water Act.10 The Tenth Circuit concluded that the Clean Water Act was "designed to regulate to the fullest extent possible sources emitting pollution into rivers, streams and lakes" because Congress did not "use the term 'navigable waters' in the traditional sense" but, instead, "intended to extend the coverage of the [Act] as far as permissible under the commerce clause."11

In 1985, the U.S. Supreme Court gave support to this approach, concluding in United States v. Riverside Bayview Homes, Inc.12 that Congress intended to regulate at least some waters that would not be deemed "navigable" under the classical understanding of that term and holding that Clean Water Act jurisdiction extended to wetlands adjacent to navigable waters.

Relying on an expansive Commerce Clause analysis, the Corps and EPA broadly defined "waters of the United States" to include not only waters that are commercially navigable, but also nonnavigable tributaries, adjacent wetlands, and other waters and wetlands "the use, degradation, or destruction of which could affect interstate or foreign commerce."13 They took the position that virtually any tie to interstate commerce rendered a water or wetland jurisdictional.14 Their approach achieved its broadest application in 1986 when the Corps issued a guidance statement, known as the "Migratory Bird Rule," extending jurisdiction to waters simply on the basis they were or could be used as habitat by migratory birds.15 The agencies used the rule to assert Clean Water Act jurisdiction over virtually any water or wetland, regardless of its connection to navigable waters.

In 2001, the United States Supreme Court invalidated the Migratory Bird Rule, holding in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC"),16 that Congress did not intend to authorize the Corps to regulate isolated, wholly intrastate waters solely on the basis the waters were used as habitat by migratory waterfowl. The court explained it was "the significant nexus between the wetlands and 'navigable waters' that informed our reading of the CWA in Riverside Bayview Homes."17

After the SWANCC decision, the agencies issued limited guidance18 on the scope of "navigable waters" under the Clean Water Act and began but never completed rulemaking19 to redefine the term in light of the court's decision.

Meanwhile, the federal courts began considering the reach of Clean Water Act jurisdiction in light of the SWANCC decision, particularly as it may impact the upstream reach of tributary jurisdiction.

1. Tributary Jurisdiction.
The challenge in evaluating tributary jurisdiction is determining how far it may extend upstream from the navigable water. The agencies take the position that all tributaries of regulated waters are also regulated20 upstream to the point at which the ordinary high water mark ("OHWM")21 is no longer perceptible.22

Prior to SWANCC, the great weight of authority from the lower courts held that tributaries of navigable waters were themselves subject to Clean Water Act jurisdiction, regardless of the navigability of the tributary.23 These cases relied on the fact that what is discharged into a tributary may eventually flow into a navigable water.24

Most courts read SWANCC narrowly as not restricting tributary jurisdiction.25 These courts continue to rely on the "hydrologic connection" rationale espoused in Eidson26 that as long as the tributary would eventually flow into the navigable body under significant rainfall, it, too, is regulated. In Headwaters, Inc. v. Talent Irrigation District, the Ninth Circuit held that irrigation canals were "waters of the United States" notwithstanding a system of closed irrigation gates, because the canals were tributaries to the natural streams with which they exchanged water.27 More recently, the U.S. Supreme Court declined to review three appeals court decisions that read SWANCC narrowly and concluded SWANCC did not restrict Clean Water Act jurisdiction from reaching non-navigable tributaries of navigable systems.28

The Fifth Circuit reads SWANCC broadly as precluding jurisdiction over waters that, although technically tributaries, are "neither themselves navigable nor truly adjacent to navigable waters... Consequently, in this circuit the United States may not simply impose regulations over puddles, sewers, roadside ditches and the like; under SWANCC "a body of water is subject to regulation . . . if the body of water is actually navigable or adjacent to an open body of navigable water."29

In the arid West, the long reach of tributary jurisdiction can pose unexpected regulatory challenges. Tributaries may include non-perennial streams, such as intermittent streams,30 that flow seasonally, and ephemeral streams,31 that flow only in direct response to precipitation. Prior to SWANCC, the Tenth Circuit held that normally dry arroyos that flow only in response to precipitation are subject to Clean Water Act jurisdiction.32

2. Regulated Wetlands.
The Corps defines "wetlands" as:

Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions . . . Wetlands generally include swamps, marshes, bogs, and similar areas.33

Wetlands are delineated using the technical criteria and field indicators set forth in the 1987 edition of the Corps of Engineers Wetland Delineation Manual. Three basic factors must be considered in evaluating the existence of wetlands: wetland soils, wetland vegetation, and wetland hydrology. Wetland hydrology may exist if there is inundation or saturation to the surface for more than 5 to 12.5% of the growing season, which is a relatively short time in higher latitudes.34

Even if a wetland meets the characteristic test under the 1987 Manual, it must still qualify as a "water of the United States" in order to be subject to regulation under the Clean Water Act. The Corps asserts Clean Water Act jurisdiction over wetlands either on the basis the wetlands are adjacent to regulated waters35 or on the basis that their use, degradation or destruction could affect interstate or foreign commerce.36 The latter approach, which reached its maximum extension under the Migratory Bird Rule, has been called into question by SWANCC.

3. Adjacent Wetlands.
The Corps defines "adjacent" as "bordering, contiguous, or neighboring" and considers wetlands to be adjacent even if they are "separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes."37 Under the adjacency approach, the Corps asserts jurisdiction over wetlands adjacent to waters which are themselves regulated, including regulated nonnavigable tributaries. The 6th Circuit recently examined the test for determining whether wetlands are "adjacent" and concluded that there is no "direct abutment" requirement but a "significant nexus" is required "which can be satisfied by the presence of a hydrological connection" between the wetlands and navigable waters.38

4. Isolated, Intrastate Waters.
The Corps defines "isolated waters" as those non-tidal waters of the United States that are neither part of a surface tributary system to interstate or navigable waters of the United States nor adjacent to such waters.39 These waters include "intrastate lakes, rivers, streams (including intermittent streams) mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds" that the agencies purport to regulate if their "use, degradation or destruction . . . could affect interstate or foreign commerce."40 After SWANCC, jurisdiction over such waters is problematic. The Corps takes the position that formal project-specific approval should be sought from headquarters before asserting jurisdiction over such waters.41

5. Artificial Waters.
Several courts have held that Clean Water Act jurisdiction is not dependent on how the water was created, and, thus, may extend to artificially created waters if they meet the criteria of navigable waters.42

6. Previously Altered Land.
Altering a jurisdictional area and making it fast by illegal filling does not alter its legal status as a navigable water or regulated wetland.43

7. Croplands.
As a general rule, agricultural lands that exhibit wetlands characteristics are subject to ¤ 404 jurisdiction, but may enjoy the statutory exemption for normal agricultural activities.44 However, wetlands converted to croplands for growing annual (but not perennial) crops prior to December 23, 1985, are not subject to Section 404 jurisdiction if they no longer exhibit wetlands characteristics.45

B. REGULATED ACTIVITIES UNDER ¤ 404 - THE DISCHARGE OF DREDGED AND FILL MATERIAL
Section 404 authorizes the Corps to issue permits for the "discharge of dredged or fill material into the navigable waters at specified disposal sites."46 The Clean Water Act defines a "discharge" as the "discharge of a pollutant,"47 which is defined as "any addition of any pollutant"48 to regulated waters.

The occurrence of a discharge of a pollutant to waters of the United States is the key to whether an activity is regulated under ¤ 404. For example, excavation activities are not regulated under ¤ 404, unless they involve a regulated discharge. If conducted in navigable waters regulated under Rivers and Harbors Act, however, excavation activities may be subject to the Corps' jurisdiction under ¤ 1049 and require a permit from the Corps, regardless of whether they involve a discharge subject to ¤ 404.

1. Discharge of Fill Material.
The Corps defines fill material as material placed in waters of the United States that has the effect of either replacing any portion of a water of the United States with dry land, or changing the bottom elevation of any portion of a water of the United States.50 Fill material does not include trash or garbage.51 The Corps defines the "discharge of fill material" as "the addition of fill material into waters of the United States."52

2. Discharge of Dredged Material.
Dredged material means material that is excavated or dredged from waters of the United States.53 The Corps traditionally took the view that dredging, itself, was not regulated if the dredged material was not redeposited within the waters of the United States. Controversy arose over the extent to which landclearing, trenching and other excavation activities in wetlands involved discharges of dredged material that should be regulated under ¤ 404.

Following a lengthy period of litigation culminating in the 1998 decision in National Mining Ass'n v. United States Army Corps of Engineers,54 the Corps issued a final rule55 in 2001 modifying the definition of "discharge of dredged material" to mean "any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the United States."56 The use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, or other earth-moving activities in waters of the United States is considered to result in a discharge of dredged material, unless project-specific evidence shows that the activity only results in incidental fallback. Incidental fallback means the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same place as the initial removal. Examples of incidental fallback include soil that is disturbed when dirt is shoveled and the back-spill that falls off the bucket into substantially the same place from which it was removed.57

a. Drainage. If there is no discharge of a pollutant to regulated waters, the activity should not be subject to regulation under ¤ 404. Thus, draining a wetland should not require a ¤ 404 permit so long as the drainage does not involve a discharge of dredged or fill material into regulated waters.58

b. Landclearing. As explained above, the agencies take the position that mechanized landclearing is a regulated activity because it involves more than incidental fallback. The courts generally agree that the use of earth-moving machinery in regulated waters or wetlands constitutes a regulated discharge. In Borden Ranch Partnership v. U.S. Army Corps of Engineers,59 the Ninth Circuit held the practice of "deep-ripping," which involved dragging four-to-seven foot long metal prongs behind a tractor or a bulldozer to break up the soil, to be a regulated activity. Relying on it prior decision in Rybachek v. U.S. Environmental Protection Agency60 regarding placer mining activities, and the 4th Circuit's reasoning in Deaton regarding sidecasting, the court concluded:

. . . by ripping up the bottom layer of soil, the water that was trapped can now drain out. While it is true, that in so doing, no new material has been "added," a "pollutant" has certainly been "added." Prior to the deep ripping, the protective layer of soil was intact, holding the wetland in place. Afterwards, that soil was wrenched up, moved around, and redeposited somewhere else. We can see no meaningful distinction between this activity and the activities at issue in Rybachek and Deaton.61

c. Sidecasting. Sidecasting involves the placement of removed soil and material along side the excavated area. Many have argued that sidecasting should not be regulated because it does not result in the net "addition" of any pollutant. In the leading case, U.S. v. Deaton,62 the Fourth Circuit rejected the argument that the activity did not constitute "addition" of a pollutant and squarely held that sidecasting of dredged material from excavation of a drainage ditch in a regulated wetland was a regulated discharge, because the dredged material was transformed into a regulated pollutant when it was excavated and redeposited.

3. Exempt Activities and "Recapture."
Section 404(f)(1) expressly exempts certain activities from permitting, including discharges of dredged or fill material from (i) normal farming, silviculture and ranching activities, (ii) maintenance of currently serviceable structures such as dikes, dams, and transportation structures, (iii) construction or maintenance of farm or stock ponds or irrigation ditches, and maintenance of drainage ditches, and (iv) construction or maintenance of farm roads or forest roads, or temporary roads for mining equipment.63 The party claiming an exemption bears the burden of showing it applies64 and satisfies various regulatory conditions and limitations.65

Even if an activity fits within one of the statutory exemptions, it will be subject to "recapture" under ¤ 404 (f)(2)66 and require a permit, if the activity brings an area of navigable waters into a new use and will impair the flow or circulation of regulated waters or reduce their reach.67 In Borden Ranch, the Ninth Circuit held that deep ripping of wetland ranch lands to convert them into dry land for orchards and vineyards was not exempt as normal farming activity and was subject to recapture under ¤ 404(f)(2), because the activity brought the land "into a use to which it was not previously subject" and the destruction of the soil layer "constituted an impairment of the flow of nearby navigable waters."68

V. PERMITS UNDER ¤ 404
The issuance of permits is governed by the Corps' regulations in 33 C.F.R. Parts 320-38 and EPA's Guidelines in 40 C.F.R. Part 230. Although the Corps is the primary permitting authority, the EPA holds ultimate veto authority over the Corps' permitting decisions.69 Several types of permits may be issued under ¤ 404. These include individual permits issued on a case-by-case basis following review of individual applications, general permits authorizing a category or categories of activity in a specific region or nationwide, and letters of permission issued without the need for individual public notice.70

A. INDIVIDUAL PERMITS

1. Application Process.
Individual permit applications71 should be submitted to the District Engineer of the District in which the project is located. Typically, the application is referred by the District to the local regulatory office of the Corps for review and any field investigations. Upon a determination of completeness, the District Engineer is required to issue a public notice advising of the proposed activity for which a permit is sought and soliciting comments and information on the proposal.72 Comments received from agencies and third parties are typically provided to the applicant with a request to provide input to assist the Corps in making its determination. A public hearing may be held to consider issues raised concerning an application.73

2. Permit Issuance.
In evaluating a permit application, the Corps is required to evaluate the probable impact, including cumulative impacts, on the public interest. Relevant factors include conservation, economics, aesthetics, general environmental concerns, historic properties, etc.74 Of particular concern are the potential impacts on historical and cultural resources, aquatic resources, and threatened and endangered species and their critical habitats. Issuance of an individual permit will usually trigger the Corps' obligation under the National Environmental Policy Act75 to assess environmental impacts of the proposed development by preparing an environmental assessment or an environmental impact statement.76

3. EPA Guidelines.
The Corps may issue a permit if it determines that issuance would not be contrary to the EPA's Guidelines or the public interest. This involves consideration of the benefits which reasonably may be expected to accrue from the proposal in relation to the reasonably foreseeable detriments, including cumulative impacts.77 The benefits of the proposed alteration of wetlands must outweigh the damage to the wetlands resource.78

Under EPA's guidelines, a permit may be issued only if:

(i) there is no practicable alternative,

(ii) there will be no significant adverse impact on aquatic resources,

(iii) all reasonable mitigation is employed, and

(iv) there will be no statutory violations caused by the proposed discharge.79

4. Practicable Alternatives.
A permit must be denied if there is a practicable alternative to the proposed discharge that involves less adverse impact. The Corps considers an alternative to be practicable if it is "available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes."80 Practicable alternatives are presumed to exist for projects which are not water dependent (i.e., a shopping center, as opposed to a marina).

5. Mitigation and Mitigation Sequencing.
In accordance with the policy that there be no "overall net loss of wetlands values and functions,"81 the Corps requires permit applicants to mitigate unavoidable adverse impacts to wetlands through a process known as mitigation sequencing. The applicant must first attempt to avoid adverse wetland impacts, then minimize unavoidable impacts to the extent appropriate and practicable by altering project plans, and finally, compensate for lost aquatic resource values through compensatory mitigation.82 Compensatory mitigation through creation, restoration or enhancement of wetlands can pose an expensive and time-consuming hurdle to a developer, particularly where lands for potential mitigation projects are not readily available. Project-specific compensatory mitigation approved by the Corps and completed on or adjacent to the site of the impacts it is designed to offset is considered preferable to mitigation conducted off-site.83 Where such on- or near-site, in-kind, mitigation is not practicable, a permit applicant may be able to satisfy its mitigation obligation financially by purchasing credits in an approved wetland mitigation bank84 or paying an "in-lieu-fee"85 to a qualifying resource management entity for a qualifying wetland project.

6. Section 401 Certification.
Section 401 of the Clean Water Act requires that every applicant for a federal permit involving a discharge of pollutants to navigable waters provide certification from the state that the proposed discharge will meet all applicable state water quality requirements.86 The Corps may not issue a ¤ 404 permit for a project until the ¤ 401 certification has been received or waived by the appropriate state water quality agency.87 EPA regulations specify the requisite elements that must be included in an acceptable certification under ¤ 401. Certification may be waived by a state either through a formal notice to the Corps or as a result of the stateÕs failure to act timely on a CorpsÕ request for certification within sixty days after receipt.88

B. NATIONWIDE PERMITS.
Many activities may proceed more expeditiously, with minimal delay and paperwork, pursuant to a nationwide permit ("NWP") under the Corps' regulations in 33 C.F.R. Part 330. A NWP is a general permit issued by regulation for a specific category of activities deemed to have minimal impacts. There are currently 43 NWPs.89

Parties relying on a NWP must comply with the notification and other specific and general conditions applicable to the permit. Most NWPs require preconstruction notice to the Corps, and many of them have very restrictive acreage limitations. NWPs may not be used twice on the same project to increase the allowable acreage of a single permit, unless a linear project (such as a highway or pipeline) is involved.90

The Corps is increasingly utilizing regional conditions to ensure that NWPs only authorize those activities with minimal adverse effects on the aquatic environment. Increased "regionalization" makes it even more imperative that proponents of regulated activities coordinate closely with their local and District Corps offices to ensure compliance with NWPs and applicable regional conditions.

C. REGIONAL PERMITS.
Regional permits are general permits issued by a Division or District Engineer authorizing a category of activities within the Division or District.91 Activities covered by a regional permit are authorized without the need for obtaining an individual permit. However, the issuing Division or District Engineer may, on a case-by-case basis, override the regional permit and require individual application and review.92

VI. ADMINISTRATIVE APPEAL PROCESS
The Corps has an administrative appeals process allowing permit applicants to appeal adverse permit decisions or jurisdictional determinations.93 Appeals must be filed with the division engineer within 60 days after the date of a Notice of Appealable Action from the Corps. This administrative appeal remedy must be exhausted before filing an action in court. The Corps will not accept any appeal of an approved jurisdictional determination associated with an unauthorized activity or an after-the-fact permit application, unless and until the appellant executes a statute of limitations tolling agreement with the District Engineer.94

VII. TAKINGS CLAIMS
Imposition of wetlands regulation may give rise to a taking of private property without compensation in violation of the Fifth Amendment to the U.S. Constitution. A taking may not be raised as a defense to an enforcement action brought under the Clean Water Act; the proper procedure is to initiate a suit for compensation in the Court of Claims.95 The Court of Claims has sole jurisdiction for claims against the United States in excess of $10,000.96 Recent court decisions have indicated a trend toward granting compensation when a party is deprived of the use of his or her land by the denial of a ¤ 404 permit.97 The claimant of a regulatory taking under ¤ 404 must have an investment-backed expectation of development98 and may not assert a claim until a permit has been sought and denied.99

VIII. ENFORCEMENT
The Clean Water Act grants independent enforcement authority to the Corps and to EPA to issue an administrative compliance order ("ACO"), assess administrative penalties, and make referrals for judicial enforcement.100 EPA also has significant authority to conduct inspections and require dischargers to provide information regarding their discharges.101 Under the language of the Act, failure to comply with an ACO subjects the violator to potential penalties.102 The Act also provides that such orders are not subject to judicial review unless they also assess civil penalties.103 Although the Tenth Circuit has upheld the non-reviewability of ACOs,104 the Eleventh Circuit more recently held the comparable provisions of the Clean Air Act "unconstitutional to the extent that severe civil and criminal penalties can be imposed for noncompliance with the terms of an ACO" without an opportunity for prior judicial review of the ACO.105

A. CIVIL LIABILITY.
The Act grants both the EPA and the Corps authority to assess administrative penalties of up to $11,000 per day per violation, not to exceed $137,500.106 These are divided into two classes. Under Class I, penalties are only chargeable per violation, informal hearing procedures apply, only a maximum of $27,500 may be assessed, and judicial appeals are to the federal district court; under Class II, penalties are chargeable per day of violation, adjudicative hearing procedures apply, a maximum of $137,500 may be assessed, and judicial appeals are to the federal circuit court.107 Judicially-levied civil penalties of up to $27,500 per day per violation may be assessed for certain violations.108

B. CRIMINAL LIABILITY.
The Clean Water Act provides stiff criminal sanctions.109 Criminal liability extends to negligent as well as knowing violations of the Clean Water Act. Maximum criminal fines range from $10,000 or imprisonment for up to two years or both for lesser offenses, to $250,000 or 15 years or both for individuals and $1,000,000 for corporations for violations involving knowing endangerment of other persons. Repeat offenders are subject to double these penalties. "Responsible corporate officers" may be held criminally liable for acts of the corporation.110

C. MANDATORY PENALTIES.
Courts are divided on the issue of whether civil penalties under the Clean Water Act are mandatory or discretionary. In Leslie Salt Co. v. United States, the Court held that once a violation has been established, a penalty is mandatory, but the court has discretion to reduce the fine. 111

D. STATUTE OF LIMITATIONS.
There is no statute of limitations in the Clean Water Act. The Tenth Circuit has held that the general five-year federal statute of limitations in 28 U.S.C. ¤ 2462 is applicable to enforcement actions under the Clean Water Act for civil penalties for unpermitted discharges of dredge and fill material that occurred more than five years before EPA filed a complaint, but did not bar EPA's claims for injunctive relief to require restoration or mitigation of the filled wetlands.112

1. See 33 U.S.C.A. ¤ 1344.

2. 33 U.S.C.A. ¤¤ 1251-1387. Such activities may also trigger the need to obtain a storm water discharge permit pursuant to the National Pollutant Discharge Elimination System (NPDES) under ¤ 402 (33 U.S.C.A. ¤ 1342) of the Clean Water Act. Utah has been delegated authority to administer the NPDES program, including storm water permitting, on non-Indian lands within the state. Utah Admin. Code R317-8. Utah law also requires written approval from the State Engineer to relocate any natural stream channel or to alter or change the beds or banks of any natural stream. Utah Code Ann. ¤ 73-3-29 (Michie Repl. 1996); Utah Admin. Code R655-13 (promulgated May 4, 2004).

3. U.S. v. Perez, 366 F.3d 1178 (11th Cir. 2004).

4. 33 U.S.C.A. ¤ 1344(c).

5. See 33 U.S.C.A. ¤¤ 403, 407 (West 1986); 33 C.F.R. Part 329. The Rivers and Harbors Act prohibits the obstruction of or the discharge of refuse into the "navigable waters of the United States" without a permit from the Corps. Jurisdiction extends to waters that are used, have been used, or may be susceptible for use to transport interstate or foreign commerce and waters subject to the ebb and flow of the tide, but does not extend above the mean or ordinary high water line.

6. 33 C.F.R. Parts 320-338 (2002).

7. 40 C.F.R. Parts 230-233 (2002) Ð known as the "EPA Guidelines."

8. 33 U.S.C.A. ¤ 1362(7).

9. U.S. Const. art. I, ¤ 8, cl. 3.

10. See generally William Funk, The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond, ELR News & Analysis, 31 ELR 10741, 10760 (July 2001).

11. U.S. v. Earth Sci., Inc., 599 F.2d 368, 373 (10th Cir. 1979) (upholding Clean Water Act jurisdiction over a nonnavigable tributary).

12. 106 S. Ct. 455 (1985).

13. 33 C.F.R. ¤ 328.3(a)(3) (2002); 40 C.F.R. ¤ 230.3(s)(3) (2002).

14. 45 Fed. Reg. 62733 (Sept. 19, 1980).

15. 51 Fed. Reg. 41217 (1986). The Corps also asserted jurisdiction over waters which are or would be used as habitat for endangered species and waters which are used to irrigate crops sold in interstate commerce.

16. 121 S. Ct. 675 (2001).

17. Id. at 680.

18. "Joint Memorandum" from Robert E. Frabricant, General Counsel, Environmental Protection Agency, and Stephen J. Morello, General Counsel, Department of the Army. 68 Fed. Reg. 1995 (Jan. 15, 2003).

19. 68 Fed. Reg. 1991 (Jan. 15, 2003).

20. See 33 C.F.R. ¤ 328.3(a)(5); 40 C.F.R. ¤ 230.3(s)(5).

21. 33 C.F.R. ¤ 328.3(e).

22. 65 Fed. Reg. 12818, 12823 (March 9, 2000).

23. See, e.g., U.S. v. Tex. Pipeline Co., 611 F.2d 345 (10th Cir. 1979) (nonnavigable tributary of a tributary of the Red River); U.S. v. Eidson, 108 F.3d 1336, 1341 (11th Cir. 1997) (storm ditch connected to sewer drain that led to a canal eventually leading to Tampa Bay); Driscoll v. Adams, 181 F.3d 1285, 1291 (11th Cir. 1999) (intermittent tributary stream).

24. Eidson, 108 F.3d at 1341 (concluding Congress intended to regulate "all waters that may eventually lead to waters affecting interstate commerce").

25. See U.S. v. Rapanos, 339 F.3d 447 (6th Cir. 2003), cert. den., 124 S. Ct. 1875 (2004), reh'g den., 124 S. Ct. 2407Ê(2004) (criminal enforcement) U. S. v. Rapanos, 376 F.3d 629 (6th Cir. 2004) (civil enforcement); Treacy v. Newdunn Assocs., LLP, 344 F.3d 407 (4th Cir. 2003); United States v. Deaton, 332 F.3d 698 (4th Cir. 2003), cert. denied, 158 L. Ed. 2d 466, 124 S. Ct. 1874 (2004); United States v. Rueth Dev. Co., 335 F.3d 598 (7th Cir. 2003), cert. denied, 157 L. Ed. 2d 699, 124 S. Ct. 835 (2003); Headwaters v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001).

26. 108 F.3d at 1341.

27. 243 F.3d at 533.

28. Deaton, 332 F.3d 698 (wetlands adjacent to a roadside ditch that eventually flowed into a navigable system); Newdunn, 344 F.3d 407 (wetlands connected by intermittent flow to navigable waters by a series of drainage ditches, a culvert under a highway, and several miles of a non-navigable creek); Rapanos, 339 F.3d 447 (wetlands adjacent to a non-navigable ditch that flowed into a river tributary to Lake Huron).

29. United States v. Needham, 354 F.3d 340, 345-46 (5th Cir. 2003); accord Rice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001). Both cases interpret the scope of "navigable waters" under the Oil Pollution Act, 33 U.S.C. ¤¤ 2701-2761, which also defines "navigable waters" as the "waters of the United States, including the territorial seas." 33 U.S.C. ¤ 2701(21).

30. 33 C.F.R. ¤ 328.3(a)(3); 40 C.F.R. ¤ 230.3(s)(3).

31. 65 Fed. Reg. 12823 (March 9, 2000).

32. See Quivira Mining Co. v. EPA, 765 F.2d 126 (10th Cir. 1985), cert. denied, 474 U.S. 1055 (1986). Accord Friends of Santa Fe County v. Lac Minerals, Inc., 892 F. Supp. 1333, 1354-56 (D. N.M. 1995). But see Rice v. Harken, 250 F.3d 264 (holding, in light of SWANCC, that discharges onto a dry creek bed were not regulated under the Oil Pollution Act).

33. See 33 C.F.R. 328.3(b); U.S. v. Larkins, 852 F.2d 189 (6th Cir. 1988) cert. den., 109 S. Ct. 1131 (1989); U.S. v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151 (1st Cir. 1987), cert. den., 108 S. Ct. 1016 (1988).

34. See U.S. v. Thorson, 2004 U.S. Dist. LEXIS 5927 at *22-29 (W.D. WI.) (rejecting a challenge to the Corps' methodology for determining wetland hydrology).

35. 33 C.F.R. ¤ 328.3(a)(7); 40 C.F.R. ¤ 230.3(s)(7).

36. 33 C.F.R. ¤ 328.3(a)(3); 40 C.F.R. ¤ 230.3(s)(3).

37. 33 C.F.R. ¤ 328.3(d). See, e.g., U.S. v. Banks, 115 F. 3d 916, 921 (11th Cir. 1997) (finding adjacency where a paved road separated wetlands from a waterway).

38. United States v. Rapanos, 376 F.3d at 639. Accord U.S. v. Thorson, 2004 U.S. Dist. LEXIS 5927 at *43-44.

39. 33 C.F.R. ¤ 330.2(e).

40. 33 C.F.R. ¤ 328.3(a)(3); 40 C.F.R. ¤ 230.3(s)(3).

41. See Joint Memorandum, supra, n. 18.

42. Leslie Salt Co. v. United States, 896 F.2d 354, 358-360 (9th Cir. 1990), cert. den., 111 S. Ct. 1089 (1990) ("The Corps" jurisdiction does not depend on how the property at issue became a water of the United States. Congress intended to regulate locate aquatic ecosystems regardless of their origin.Ó)

43. Golden Gate Audubon Soc'y, Inc. v. U.S. Corps of Eng'rs, 700 F. Supp. 1549, 1557, amended, 717 F. Supp. 1417 (N.D. Cal. 1988).

44. 33 U.S.C.A. ¤ 1344(f)(1)(A); 33 C.F.R. ¤ 323.2(d)(3)(iv).

45. RGL #90-07; 33 C.F.R. ¤ 328.3(8) (1998); 58 Fed. Reg. 45031-34 (August 25, 1993).

46. 33 U.S.C.A. ¤ 1344(a).

47. 33 U.S.C.A. ¤ 1362(16).

48. 33 U.S.C.A. ¤ 1362(12).

49. 33 U.S.C.A. ¤ 403; 33 C.F.R. Part 322.

50. 33 C.F.R. ¤ 323.2(e).

51. Id.

52. 33 C.F.R. ¤ 323.2 (f). The definition excludes, however, plowing, cultivating, seeding and harvesting for the production of food, fiber, and forest products

53. 33 C.F.R. ¤ 232.2(c).

54. 145 F.3d 1399, 1405 (D.C. Cir. 1998).

55. 66 Fed. Reg. 4550 (January 17, 2001). A facial challenge to the new rule was rejected in Nat'l Ass'n of Home Builders v. U.S. Army Corps, 311 F. Supp. 2d 91 (D.D.C. 2004).

56. 33 C.F.R. ¤ 232.2(d); 40 C.F.R. ¤ 323.2(d).

57. Id.

58. Save Our Community v. EPA, 971 F.2d 1155 (5th Cir. 1992).

59. 261 F.3d 810, 816 (9th Cir. 2001), aff'd, 123 S. Ct. 599 (2002) (per curiam).

60. 904 F.2d 1276, 1285 (9th Cir. 1990) (removing material from a stream bed, sifting out the gold, and returning the material to the stream bed constituted an "addition" of a "pollutant").

61. 261 F.3d at 815. The court went on to hold that each pass of the ripper constituted a separate violation of the Clean Water Act. Id. at 818.

62. 209 F.3d 331 (4th Cir. 2000).

63. 33 U.S.C.A. ¤ 1344(f).

64. U.S. v. Larkins, 657 F. Supp 76, 85, n.22 (W.D. Ky. 1987).

65. See 33 C.F.R. ¤ 323.4.

66. 33 U.S.C.A. ¤ 1344(f)(2).

67. See Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 925 (5th Cir. 1983) (recapture provision can preclude the normal farming exemption).

68. 261 F.3d at 815, aff'd 123 S. Ct. 599 (2002) (per curiam).

69. 33 U.S.C.A. ¤ 1344(c).

70. 33 C.F.R. ¤ 325.2(e)(1).

71. See 33 C.F.R. Part 325, Appendix A.

72. 33 C.F.R. ¤ 325.3.

73. 33 C.F.R. ¤ 327.4.

74. 33 C.F.R. ¤325.3(c).

75. 42 U.S.C.A. ¤¤ 4321-4370d.

76. See 33 C.F.R. Part 325, App. B.

77. 33 C.F.R. ¤ 320.4(a)(1).

78. 33 C.F.R. ¤ 320.4(b)(4).

79. 40 C.F.R. ¤ 230.10.

80. 40 C.F.R. ¤ 230.10(a)(2).

81. See Memorandum of Agreement Concerning the Determination of Mitigation Under the Clean Water Act ¤ 404(b)(1) Guidelines (February 26, 1990), 55 Fed. Reg. 9211 (March 12, 1990).

82. Id.

83. Id.

84. See 60 Fed. Reg. 58605 (Nov. 28, 1995).

85. See 65 Fed. Reg. 6693 (Nov. 7, 2000).

86. 33 U.S.C.A. ¤ 1341.

87. 33 C.F.R. ¤ 325.2(b)(1)(ii).

88. 33 C.F.R. ¤ 325.2(b)(1)(ii).

89. 67 Fed. Reg. 2019 (Jan. 15, 2002).

90. See RGL #88-06: Nationwide Permit Program. (June 27, 1988).

91. 33 C.F.R. ¤ 325.2(e)(2).

92. Id.

93. 33 C.F.R. Part 331.

94. 33 C.F.R. ¤ 326.3(e)(1)(v).

95. Riverside Bayview Homes, Inc., 106 S. Ct. 455 (1985).

96. Bowles v. Army Corps of Eng'rs., 841 F.2d 112 (5th Cir. 1988).

97. See, e.g., Florida Rock Industries Inc. v. U.S., 2000 U.S. Claims LEXIS 50 (developer entitled to an award of more than $2 million plus compound interest dating back to 1980 for partial regulatory taking of a 98-acre tract of wetlands).

98. Good v. U.S., 189 F.3d 1355, 1361-63 (Fed. Cir. 1999), cert. den., 529 U.S. 1023 (2000).

99. 106 S. Ct. at 459.

100. See 33 U.S.C.A. ¤¤ 1319, 1344(s).

101. 33 U.S.C.A. ¤ 1318.

102. 33 U.S.C.A. ¤ 1319(d). The original statutory amount of $25,000 per day of violation has been adjusted upward for inflation to $27,500. See 40 C.F.R. Part 19.

103. See 33 U.S.C.A. ¤¤ 1319(g), 1344(s)(4).

104. Laguna Gatuna, Inc. v. Browner, 58 F.3d 564, 566 (10th Cir.1995), cert. denied, 116 S. Ct. 771 (1996).

105. TVA v. Whitman, 336 F.3d 1236, 1239 (11th Cir. 2003), cert. denied sub nom. Leavitt v. TVA, U.S. No. 03-1162 (2004)

106. 33 U.S.C.A. ¤ 1319(g), as adjusted for inflation. See 40 C.F.R. Part 19.

107. 33 U.S.C.A. ¤ 1319(g)(2), (8).

108. 33 U.S.C.A. ¤ 1319(d), as adjusted for inflation. See 40 C.F.R. Part 19.

109. 33 U.S.C.A. ¤ 1319(c). See U.S. v. Perez, 366 F.3d 1178 (11th Cir. 2004).

110. 33 U.S.C.A. ¤ 1319(c).

111. 55 F.3d 1388 (9th Cir. 1995), cert. denied, sub nom., Cargill, Inc. v. U.S., 116 S. Ct. 407 (1995).

112. U.S. v. Telluride Co., 146 F.3d 1241 (10th Cir. 1998).

Posted by at November 24, 2004 04:47 PM