Federal Authority to Regulate Drainage Ditches and Isolated Wetlands: Wide Spectrum of Opinions On Scope of Authority Coming to a Head
 
October 24, 2003
 
Lawrence R. "Larry" Liebesman- Washington
Rafe Petersen - Washington

In the wake of the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (hereinafter SWANCC), there has been much confusion over the scope and reach of the U.S. Army Corps of Engineers regulatory authority over "navigable waters" pursuant to the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (hereinafter CWA).  A growing number of courts, notably the U.S. Courts of Appeal for the Fourth, Sixth, Seventh and Circuits have read SWANCC narrowly – upholding the Corps' assertion of jurisdiction over drainage ditches, intermittent tributaries, and isolated wetlands that have any type of surface water connection to regulated "navigable waters," no matter how attenuated.  On the other side of the spectrum stands the 5th Circuit, which ruled that SWANCC reigned in the historic expansion of the Corps jurisdiction.  Finally, both the Bush Administration and Congress have proposed regulatory and statutory clarifications that would end the controversy.  Given the split in circuits and the wording- fixes proposed by the executive and congressional branches, it is likely that this issue will be soon be resolved.

Narrow Interpretations Give Corps Broad Authority

The 4th, 6th, 7th and 9th Circuits have narrowly interpreted SWANCC as merely invalidating a controversial 1986 regulation allowing the Corps to assert jurisdiction over isolated wetlands based upon their use by migratory birds.  These circuits have found that the Corps may find the necessary "nexus" to commerce (the jurisdictional prerequisite required under the Constitution’s Commerce Clause) by simply proving that the wetland or stream in question has an indirect hydrologic connection to "navigable water," or some other Commerce Clause connection, other than use by migratory birds.   

For example, in Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001), the 9th Circuit held that an irrigation district's use of aquatic herbicide in a system of irrigation canals that entered nearby Bear Creek through a malfunctioning waste gate was regulated under the CWA.  The court concluded that the Corps' assertion of jurisdiction was "not affected" by the SWANCC decision concerning "isolated waters," since in this case, the canal had released water into Bear Creek twice in 13 years.  The court held that even a tenuous hydrological connection to a navigable water was a sufficient nexus, and that "[e]ven tributaries that flow intermittently are 'waters of the United States.'"  

In what was a bit of a surprise to court watchers, the 4th Circuit in United States v. Deaton, 2003 WL 21357305 (4th Cir. 2003), narrowly interpreted SWANCC to allow jurisdiction over non-navigable waters "with some connection to navigable ones." Deaton sets forth the most extensive analysis of the issue to date by a federal court of appeals.  At issue in that case was whether the CWA permitted federal jurisdiction over a roadside ditch, dug by Deaton, whose waters eventually connected with the navigable Wicomico River, eight miles away, after traversing through at least five culverts, three ponds and five dams.  In upholding the Corps' assertion of jurisdiction, the court first held that because the CWA term, "waters of the United States" is ambiguous, it must defer to the agency's interpretation of that term, thereby allowing jurisdiction over any branch of a tributary system that eventually flows into a navigable body of water.  Second, the court noted that Congress' power over the "channels" of interstate commerce "reaches beyond the regulation of activities that are purely economic in nature."  The court noted "there is no reason to believe Congress has less power over navigable waters than over other interstate channels such as highways… ."

The 6th Circuit has followed Deaton.  In United States v. Rapanos, 2003 WL 21789241 (6th Cir. 2003), the defendant owned a tract of land 20 miles from both the Saginaw Bay and the navigable Kawkawlin River.  Approximately one-third of the land consisted of wetlands, which the defendant filled with sand.  The government's evidence showed that the wetlands were connected by a "surface hydrological connection" – an open drain sluice connected to a creek, connected to the Kawkawlin.  The 6th Circuit found CWA jurisdiction based on Deaton's reasoning.  In light of congressional concern for water quality and aquatic ecosystems, a nexus between navigable waterways and their non-navigable tributaries is enough to grant CWA jurisdiction over the whole tributary system of any navigable waterway. 

Finally, the 7th Circuit held in United States v. Rueth Development Co. 335 F.3d 598 (7th Cir. 2003), that surface runoff that winds through tributaries into navigable waters may establish a jurisdictional nexus.

Fifth Circuit’s Broad Interpretation

To date, only the 5th Circuit Court of Appeals has broadly interpreted SWANCC.  In Rice v. Harken Exploration Co, 250 F.3d 264 (5th Cir. 2001), the owner of the surface rights to a tract of land utilized for oil exploration and drilling filed suit under the Oil Protection Act (OPA) against the drilling company for the accumulated damage to the soil and groundwater resulting from many small-scale discharges of oil and other pollutants onto the soil.  Ultimately, the pollutants entered into Big Creek, a “small seasonal" or "intermittent" creek on the property.  The court concluded that neither the groundwater nor the non-navigable creek were protected by the CWA, and therefore, fell outside the OPA as well.  Unlike other circuits, the court was not persuaded by the fact that ultimately, Big Creek may have some sort of connection to navigable water.  The court also declined to extend the coverage of the CWA to a discharge on dry land that seeps into groundwater, which in turn seeps into navigable water.

One of the Branches of Government Likely to Bring Clarification

The split in interpretation among the courts wrestling with the SWANCC decision was deep and instantaneous.  In the two years since the Supreme Court ruled, two diametrically opposed, fully articulated interpretations have emerged among the lower federal courts.  On the whole, the trend is toward a more narrow reading of the decision.  A growing majority of courts have preserved the Corps' jurisdiction over all but the most isolated waters.   It is impossible to predict whether the Supreme Court will ultimately decide to further clarify SWANCC’s application to tributaries and their adjacent wetlands.  However, the conflict in circuits suggests that the odds are in favor of the Court once again addressing these issues.

 The judiciary has not been the only branch of government to wrestle with this issue.  On January 15, 2003, the Corps and EPA issued a Joint Guidance Memorandum and Advanced Notice of Proposed Rule Making (ANPRM) that may eventually lead to a formal rule that could provide a clearer interpretation of SWANCC's meaning.  The ANPRM cites the great uncertainty engendered by SWANCC, and notes that one of its purposes is to "solicit additional information, data, or studies addressing the extent of resource impacts to isolate intrastate, non-navigable waters."  The goal of the ANPRM is to determine which factors provide a basis of jurisdiction over isolated, intrastate, non-navigable waters; whether the regulations should define "isolated waters"; and, if so, what factors should be considered in determining whether a water is, or is not, isolated for jurisdictional purposes.  The agencies have only begun analyzing the comments received.  It is uncertain when the Corps and EPA will publish a proposed regulation for public comment.  Meanwhile, there are several bills pending before Congress that address the definition of "waters of the United States."

Given all this attention, it appears likely that clearer guidance is in sight.  Which branch of government it ultimately comes from, however, is anyone's guess. 

For more information, e-mail Lawrence R. Liebesman or Rafe Petersen at lawrence.liebesman@hklaw.com, or rafe.petersen@hklaw.com, respectively, or call toll free, 1-888-688-8500.