I i O UNITED STATES ENVIRONMENTAL PRI F'. IL.. A .','Cs
WASHINGTON. D.C. 2Cd46
SEP 12 1985
TO: Richard E. Sanderson
Acting Assistant Administrator
Office of External Affairs (A-100EA)
FROM: Francis S. Blake it .-
General Counsel (LE-130)
SUBJECT: Clean Water Act Jurisdiction over Isolated Waters
At the section 404 oversight hearings before the Senate
Committee on Environment and Public Works on July 15, 1985,
Senator Mitchell asked that you confer with the Office of
General Counsel concerning a jurisdictional question under
the Clean Water Act. Specifically, he asked whether, in
asserting jurisdiction over isolated waters on the basis of
use by migratory birds or endangered species, EPA required
proof that a particular water body was actually used by such
birds or endangered species prior to recognizing jurisdiction
or whether EPA would be satisfied with evidence that such
water body could be so used.
The jurisdiction of the Clean Water Act extends to "waters
of the United States." EPA's regulations define waters of
the United States to include, inter alia:
(c) 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, degrada-
tion, or destruction of which would affect or could
affect interstate or'foreign commerce including any such
(1) Which are or could be used by foreign or interstate
travelers for recreationor other purposes;
(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.
40 CFR 1122.2; 40 CFR 1233.3.
These regulations implement the Congressional intent that
Clean W&ter Act jurisdiction be asserted to the maximum
extent permitted under the Commerce Clause. See, e.g., 1 Leg.
hist., at 178 and 250-51; Avoyelles Sportsmen's League v.
Marsh, 7i5 F.2d 897 (5th Cir. 1983); Leslie Salt Co. v.
Froelke, 578 F.2d 742 (9th Cir. 1978). Therefore, the regula-
tions should be broadly construed, subject of course to the
limitations of the Commerce Clause and the actual language of
The specific definition of waters of the United States in
EPA's regulations has evolved over the years, and it is not
necessary to trace here its entire history since passage of the
Act in 1972. However, it is relevant to note that in 1979
the agency changed the prior definition, which simply referred
to waters used by. inter alia, industry in interstate commerce,
to add theW phrase waterse tK use, degradation, or destruction
of which would affect or could affect" commerce.1/ As explained
in the preamble, this language was intended to broaden the
definition of waters of the United States based on the suscepti-
bility of a stream of use by industries in interstate commerce
(44 Fed. Reg. 32854, June 7, 1979).
[T]he regulations now focus, not on the nature of the
stream's users, but on the characteristics of the stream
itself, and it will no longer be necessary to show actual
industrial use for a stream to fall within the definition.
Id. at 32858.2/
It is now generally accepted that migratory birds and
endangered species may be regulated under the Commerce Clause,
and that this regulation extends to protection of habitat.
See, e.g., Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984);
Hu hes v. O-ITEoma,~TU.S. 322 (1979); Bailey v. Holland,
126 F.2d 317 (4th Cir. 1942); Palila v. RHaaii Dept of Land
and Natural Resources. 471 F. Supp. 85 (D. Ha. 1979), aff'd
639 F.2d 495 (9th Cir. 1981). The impact on commerce of the
destruction of any one isolated wetland need not itself be
1/ This change was made after an Office of General Counsel
opinion interpreted the old definition as not covering
intrastate waters at or below a discharge point where there
was no actual use by a downstream industrial user. Decision
of the General Counsel No. 73 (Dec. 15, 1978).
2/ In addition, the regulation was reworded to make explicit
the long-held view that the waters specifically mentioned
were not an exclusive list of waters of the United States.
use is available, and taking has occL J, the owner may
always bring a separate action for compensation under the
Tucker Act. 28 U.S.C. 1491 (1982), S. Ct. at 460. While
the Court left the takings question open, its strong
_nguage on the issue ("spurious constitutional over-
l es," S. Ct. at 460) and its recitation of a string of cases
holdingg federal regulation against fifth amendment
challenge, hardly gives encouragement to those who hold
out the hope that regulation of wetlands may be
The Constitutional Limits of
The tortured course wetlands jurisdiction has taken is all
the more remarkable in that it is completely unnecessary.
While the Corps has edged along what it perceived as a
constitutional tightrope, it has in fact been treading solid
constitutional ground. Only poor vision and an apparent
failure to read the case law made the ground seem so far
The law is well settled that commerce clause authority
extends not only to "the use of channels of
interstate or foreign commerce" [such as navigable
waters] and to "protection of the instrumentalities
of interstate commerce... or persons or things in
commerce," but also to "activities affecting
Hodel v. Virginia Surface Mining and Reclamation Ass'n,
452 U.S. 264, 276-77 (1981) (quoting Perez v. United
,pates, 402 U.S. 146, 150 (1971)).10 Congress' utilization
( the "navigable waters" language reflects no more than
en anachronistic throwback to that era, long past,
characterized by a restrictive view of the commerce power.
As the Court said in Wickard, "[Q]uestions of the power of
Congress are not to be decided by reference to any
formula which would give controlling force to nomen-
clature." Wickard at 120. Yet, such devotion to nomen-
clature continues, I believe, as a consequence both of
habit and of overabundant caution. This cautious habit is
shared by the Corps, which continues to construe its
jurisdiction narrowly (despite its broad 1977 regulations),
the Congress which continues to employ terms of art laden
with unnecessary constitutional baggage while
renouncing the constitutional limitations in its legislative
history, and the Supreme Court which has trod ever so
delicately around easy constitutional questions. The
unfortunate result is the needless confusion over isolated
wetlands left unresolved in the Riverside Bayviewcase.
Given that Congress may legislate beyond the reach of
navigable-in-fact waters, and has chosen to do so, the only
question is what are the limits of that jurisdiction? The test
is straightforward: Congress' determination that discharge
of dredged or fill material into the nation's wetlands
substantially affects interstate commerce must be upheld i
there is "any rational basis for such a finding." Surface
,AMining at 276; Heart of Atlanta Motel, Inc. v. United States,
f 9 U.S. 241 258 (1964). Given the critical role played by
wetlands commerce as well as health and recreation,"1
there cannot be any serious question that such a rational
In short, the Su, .ne Court ducked an issue which II
easily could have resolved. As the court found in Natural
Resources Defense Council v. Callaway. 392 F. Supp.
685, 686 (D.D.C. 1975), Congress exercised its full
constitutional power in enacting the CWA. That power
reaches wetlands everywhere in the nation. But for now,
we must be content with a ruling that wetlands adjacent to
navigable water bodies fall within the scope of the Corps'
authority regardless of what made them wet.
The broader issue, however, may not lie dormant for
long. The question sidestepped by the Supreme Court is
now before a federal district court in Galveston, Texas,
where the National Wildlife Federation has challenged the
Corps' failure to exercise its jurisdiction over a wetland
known only as "Pond 12" as well as "a policy or pattern or
practice" of ignoring its section 404 responsibilities on
isolated wetlands throughout the United States. Amended
Complaint at 7 (March 11, 1986). In defense of its refusal to
exercise more broadly its section 404 powers, the Corps
has taken, in effect, the curious position that its own
regulations are unconstitutional. Because the wetlands at
issue are not adjacent to navigable waterways, the court,
assuming it reaches the merits, may be expected at last to
address the constitutionality of the sweeping powers
vested in the Corps by the Congress in 1972.
Mr. Meyer serves as counsel to the National Wildlife
Federation's Rocky Mountain Natural Resources Clinic in
Boulder, Colorado, and is an associate professor adjoint at
the University of Colorado Law School. This article is based
on a presentation given by Mr. Meyer at the Section 404
seminar cosponsored by the Natural Resources Law
Center in March, 1986.
1. Until recently, wetlands have been regarded as having
little value (except for their potential for conversion to fast
lands). As a result of this incomplete understanding of their true
worth, and of federal and state policies promoting their
development, over half the nation's wetlands have been lost.
Want, Federal Wetlands Law: The Case and the Problems, 8
Harv. Envtl. L. Rev. 1, 3 (1984). Wetland destruction continues
today at a rate of 450,000 acres annually. U.S. Fish and Wildlife
Service, Wetlands of the United States: Current Status and
Recent Trends 31 (1984). It is recognized now, however, that
Rocky Mountain National Park, setting forthe upcoming national parks
wetlands serve a variety of critical en..jnmental, commercial,
safety, and health needs. For instance, wetlands serve to
maintain ground water supplies and prevent flooding by retaining
rainwater, to purify water by absorbing and recycling nutrients
.and other pollutants, and to provide essential nesting, wintering,
( nd resting habitat for countless species of migratory waterfowl.
Council on Environmental Quality, Our Nation's Wetlands, An
Interagency Task Force Report 2, 23, 27 (1978) (GPO No. 041-
01100045-9) ('CEO"). Wetlands even have been employed to
2. The question of the broader scope of Corps' authority is
now before a federal district court in Texas, National Wildlife
Federation v. Laubscher, Civil Action No. G-86-37 (S.D. Tex.
filed Jan. 15, 1986).
3. In 1972 the Corps published a definition of the term
"navigable waters of the United States" for purposes of defining
the scope of the RHA. 37 Fed. Reg. 18,289-92 at 18,290 (Sept.
9, 1972). The regulation simply codified the evolution of federal
case law up to that point. Navigable waters were defined as: (1)
all waters presently used to transport interstate or foreign
commerce (derived from The Daniel Ball, 77 U.S. (10 Wall.) 557
(1870); (2) all waters used in the past to transport interstate or
foreign commerce (derived from Economy Light and Power Co. v.
United Slates, 256 U.S. 113 (1921) (in other words, once
navigable, forever navigable); or (3) all waters susceptible to use
in their ordinary condition or by reasonable improvement to
transport interstate or foreign commerce (derived from United
States v. Appalachian Electric Power Co., 311 U.S. 377 (1940);
as well as waters subject to the ebb and flow of the tide. These
regulations remain essentially in tact in 33 C.F.R. 323.2(a),
329.4 (1985) (see 33 C.F.R. 323.2(b) (1985) for a definition of
the same term under the Clean Water Act).
( 4. While the Corps has the primary regulatory function
inder section 404, the EPA has ultimate authority in permit
decisions by virtue of its power to veto permits issued by the
Corps. Section 404(c), 33 U.S.C. 1344(c) (1982). Moreover,
EPA holds the ultimate responsibility for determining the scope
of "navigable waters" for the purposes of section 404. 43 Op.
Att'y Gen. No. 15 (Sept. 5, 1979); Avoyelles Sportsmen's
League, Inc. v. Marsh, 715 F.2d 897, 903 n.12. The Corps and
EPA share authority to bring enforcement actions to halt the
unpermitted discharge of dredged or fill material into wetlands.
Sections 309, 404(s)(1), 33 U.S.C. 1311(a), 1319(b) and (c),
1344(s)(1) (1982). Finally, the Corps' authority may be
transferred to states that have devised federally approved
permit programs. Section 404(g), 33 U.S.C. 1344(g) (1982).
5. Although the scope of jurisdiction under section 404 of
the CWA is generally thought to include (and surpass) that of
section 10 of the Ri.... there are three narrow exceptions to that
rule in which jurisdiction may be found under section 10 but not
under section 404. (1) an exemption from section 404 coverage
applies (e.g, certain agricultural activities are exempt), (2)
activities affecting a waterway but not involving the disposal of
dredge or fill material are involved, and (3) the action predates
6. While the 1977 regulations generally expanded the
Corps' jurisdiction, in two very limited respects, the regulations
reflected a tightening of jurisdiction: (1) the new wording made
clear that the wetland must be a wetland at the time of the
proposed action (not just in the past), and (2) the new wording
also made clear that the "abnormal" presence of wetland
vegetation is not sufficient to convert the area into a wetland.
7. The 1977 regulations do contain a provision on adjacent
wetlands, 33 C.F.R. 323.2(a)(7) (1985), but this appears to be
redundant and completely absorbed by two broader
classifications of qualifying wetlands for which there is no
adjacency requirement, 33 C.F.R. 323.2(a) (2) and (3) (1985).
8. The Court readily disposed of respondent's threshold
argument that no wetlands can fall within the definition of waters
of the United States, describing it as a "simplistic response." 106
S. Ct. at 462.
9. The compensation question recently was taken up but
hardly elucidated in an inscrutable opinion by the Federal Circuit
in Florida Rock Industries, Inc. v. United States, Nos. 85-2588,
85- 2609, slip op. (Fed. Cir. May 14, 1986).
10. The commerce clause has been read this broadly for
over forty years. See Wickard v. Fihurn, 317 U.S. 111 (1942)
(federal crop limitations extending to wheat consumed on farm
premises upheld as proper exercise of the commerce power
where the only effect on interstate commerce was that the wheat
consumed may have displaced interstate wheat which the farmer
otherwise would have had to purchase); Katzenbach v. McClung,
379 U.S. 294 (1964) (Civil Rights Act held proper exercise of
commerce power where the only effect on interstate commerce
was purchase of meat by Ollie's Barbeque and the likelihood that
black people would travel and eat out more often in the absence
11. Wetlands have been estimated to provide $140 billion
worth of flood protection and water purification services. Ninety-
eight percent of Maine's $50 million-per-year fish harvest "was
made up of species that depend upon wetlands for some part of
their life cycle." The prairie potholes of the Northern Great Plains
produce over one-half of the newborn wild duck population every
year. U.S. Fish and Wildlife Service, Wetlands of the United
States: Current Status and Recent Trends 42 (1984); remarks of
Sen. Chafee during the 1977 floor debate.
Steve LaSatz, Vice President for Law at Rocky Mountain Energy presents a $10.000 check
for the Natural Resources Law Center to Associate Dean Cliford Calhoun and Larry