| April
14, 2003  Water
Docket
U.S. Environmental Protection Agency
Mail Code 4101T
1200
Pennsylvania Avenue, N.W.
Washington, D.C. 20460 Attention:
Docket ID No. OW-2002-0050
The
National Grange is pleased to submit the following comments in response to the
Advance Notice of Proposed Rulemaking (ANPRM) to implement the Supreme Court's
decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001) (SWANCC).
The
National Grange (Grange) is the oldest general farm and rural public interest
organization in the United States. Founded in 1867, today the Grange represents
over 200,000 individual Grange members who are affiliated with nearly 3000 local,
county and state Grange chapters located across rural America. Grange members
have traditionally advocated a balanced federal policy for conserving and regulating
the Nation's wetlands.
The
ANPRM, which was issued jointly by the U.S. Environmental Protection Agency (EPA)
and the U.S. Army Corps of Engineers (Corps), is seeking early comment on issues
associated with the scope of waters, including wetlands, that are subject to federal
jurisdiction under the Clean Water Act in light of SWANCC. The Clean Water Act
(CWA) asserts jurisdiction over "the navigable waters," which are defined in the
Act as the "waters of the United States." The Supreme Court in SWANCC held that
intrastate, non-navigable, isolated waters are not jurisdictional "waters of the
United States" where the sole basis for asserting CWA jurisdiction is the use
of such waters by migratory birds. Read in its entirety, however, the opinion
of the Court is broader than the immediate holding in the SWANCC case, and excludes
from CWA jurisdiction not only all "isolated waters," but all waters, except traditionally
navigable waters and their adjacent wetlands. The Corps and EPA should propose
and issue a final rule that gives full effect to the Supreme Court's decision.
I.
The Migratory Bird Rule is Eliminated as a Basis For Federal Jurisdiction. The
Grange agrees with the agencies' recent guidance that SWANCC eliminates CWA jurisdiction
over isolated waters that are intrastate and non-navigable where the sole basis
for asserting CWA jurisdiction rests on any of the factors listed in the Migratory
Bird Rule. The factors identified in the Migratory Bird Rule are the use of the
water in question: as habitat for birds protected by Migratory Bird Treaties or
migratory birds that cross state lines; 1.
as habitat for endangered species; or
2. to irrigate crops sold in interstate
commerce. Some
groups that wish to maintain maximum federal jurisdiction claim that only the
first factor noted above, the use of the water as habitat by migratory birds,
is eliminated by SWANCC as a basis for jurisdiction. The Coalition concurs with
the determination by EPA and the Corps that SWANCC "squarely eliminated" the Migratory
Bird Rule in its entirety, including the second and third factors above, as a
basis for federal jurisdiction under the CWA. II.
The So-Called "(a)(3) Factors" Do Not Provide a Basis for Federal Jurisdiction.
One of the
specific questions presented by the agencies in the ANPRM is: Whether,
and if so, under what circumstances, the factors listed in 328.3(a)(3)(i)-(iii),
or any other factors, provide a basis for determining CWA jurisdiction over isolated,
intrastate, non-navigable waters. The factors involve connections to interstate
commerce other than the migratory bird rule, and include the use of the wetlands
or other waters for recreation, the sale of fish or shellfish, and industry. The
Grange believes that under the Supreme Court's decision in SWANCC, the jurisdiction
of the CWA, including the Section 404 program, is not governed by the "commerce
clause." Accordingly, full and fair implementation of the Court's decision in
SWANCC means that connections to interstate commerce such as those included in
the "other waters" regulation (328.3(a)(3)(i)-(iii)) may no longer be used as
a basis for jurisdiction under the CWA. Instead, the test for jurisdiction under
SWANCC is navigability.
The Court made clear through a number of statements in its opinion in SWANCC that
in enacting the CWA, Congress intended to exercise only its authority over navigation.
The Court reminded the Corps that the Corps' original interpretation of the CWA
in the Corps' 1974 regulations limited its jurisdiction to "navigable waters,"
meaning "those waters of the United States which are subject to the ebb and flow
of the tide, and/or are presently, or have been in the past, or may be in the
future susceptible for use for purposes of interstate or foreign commerce. The
Court found in SWANCC that the agencies had "put forward no persuasive evidence
that the Corps mistook Congress' intent in 1974.
The Court acknowledged and reaffirmed its 1985 holding in United States v. Riverside
Bayview Homes, Inc., in which jurisdiction over wetlands adjacent to traditionally
navigable waters was upheld. The Court in that case relied on evidence of congressional
intent to "regulate at least some waters that would not be deemed 'navigable'
under the classical understanding of that term. The Court in SWANCC limited the
reasoning in Riverside Bayview Homes and made clear that navigability was the
mark of federal jurisdiction under the CWA. The SWANCC Court explained that its
decision in Riverside Bayview Homes was based on Congress' clear intent to regulate
wetlands that "actually abutted on a navigable waterway. The Court stated in SWANCC
that it was the "significant nexus between the wetlands and 'navigable waters'
that informed our reading of the CWA in Riverside Bayview Homes. In contrast,
the CWA does not allow jurisdiction over "ponds that are not adjacent to open
water. The Court intended "adjacency" to be limited to wetlands that are contiguous
or bordering navigable waters; wetlands that actually "abut" the navigable waters.
Wetlands that
are separated by uplands do not abut the navigable waters and should not be considered
adjacent. The agencies' regulations do not include adjacent open waters. This
provides further evidence that adjacency is limited to contiguous or bordering
waters. The use of the term adjacency, limited to contiguous or bordering, would
have no meaning for open waters, since the open water would then be incorporated
within the waterbody itself. If "adjacency" was meant to include waterbodies separated
by uplands, then it would have made sense to include adjacent ponds in the definition
of waters of the United States. Allowing jurisdiction over waters that do not
abut a navigable water, the Court found, would read the word "navigable" out of
the statutory term "navigable waters." The
Court in SWANCC stated further that the term "navigable" has "at least the import
of showing us what Congress had in mind as its authority for enacting the CWA:
its traditional jurisdiction over waters that were or had been navigable in fact
or which could reasonably be so made. In sum, according to the Court, nothing
in the text or legislative history of the CWA "signifies that Congress intended
to exert anything more than its commerce power over navigation.
Indeed, the Court in SWANCC warned the agencies that the commerce clause-based
"other waters" regulation raises constitutional questions. According to the Court,
"[w]here an administrative interpretation of a statute invokes the outer limits
of Congress' power, we expect a clear indication that Congress intended that result."
The Court found no such clear statement by Congress. On the contrary, Congress
explicitly chose to "recognize, preserve, and protect the primary responsibilities
and rights of States . . . to plan the development and use . . . of land and water
resources" as expressed in Section 101(b) of the CWA. The Court reasoned that
allowing the Corps and EPA to claim jurisdiction over isolated waters such as
ponds and mudflats would result in a "significant impingement of the State's traditional
and primary power over land and water use. Allowing jurisdiction under any of
the so-called "(a)(3) factors" would unlawfully readjust the federal-state balance
crafted by Congress when it enacted the CWA. A
number of post-SWANCC court decisions reflect these statements by the Supreme
Court. The U.S. Court of Appeals for the 5th Circuit held that under SWANCC, a
body of water is subject to CWA jurisdiction "only if its actually navigable or
is adjacent to an open body of navigable water. Recently a federal district court
in New Jersey held that wetlands adjacent to a non-navigable creek that fed into
the Hackensack River were not jurisdictional. The court ruled that in light of
SWANCC a "mere hydrologic connection" is no longer enough; there must be a "significant
nexus" between the wetlands and the navigable water. Another federal court in
Michigan held that because the wetlands on the property were not directly adjacent
to navigable waters, the government had no jurisdiction over the property pursuant
to Section 404 of the CWA. The court cited that part of the opinion in SWANCC
which reasoned that "navigable" must be read to have some meaning. According to
the court, there must be some effect on a navigable waterbody in order for federal
jurisdiction to obtain. The court found that the defendant's filling of wetlands
on his property with sand had no effect on the Kawkawlin River, the navigable
waterbody that, although 20 miles away, was nearest to the property.
III. Jurisdictional
Waters Must be Defined in a Manner Consistent with the SWANCC Decision. The
ANPRM also specifically requested comment on the following issue: Whether
the regulation should define "isolated waters," and if so, what factors should
be considered in determining whether a water is isolated for jurisdictional purposes.
As
noted previously, current regulations define "isolated waters" as those non-tidal
waters, including wetlands, that are not part of a surface tributary system to
interstate or navigable waters, and are not adjacent to such tributary waterbodies.
The question presented by the agencies, then, raises the issue of how to define
the key terms "tributary system" and "adjacent" wetlands. The Grange advocates
the following basic principles for defining isolated waters. The principles set
forth below should apply to any final or interim rule issued by the agencies,
whether or not the rule limits jurisdiction to navigable waters and their adjacent
wetlands as suggested above. A.
"Adjacent" wetlands are those wetlands that are bordering or contiguous to (i.e.
abutting) jurisdictional waters. The
Supreme Court held in United States v. Riverside Bayview Homes, Inc. that wetlands
"adjacent" to navigable waters are subject to federal jurisdiction under the CWA.
The Corps and EPA currently have identical regulations in place that define "adjacent"
to mean: 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. Some
groups that wish to define away "isolated waters" after SWANCC now suggest that
all wetlands within a mile of a tributary of a traditionally navigable water and
all wetlands within the 100 year flood plain should be considered "neighboring,"and
therefore jurisdictional as adjacent wetlands. The
correct, and less expansive, view, which the Corps has historically held, is that
it is the second sentence of the existing regulation which defines "neighboring"
as wetlands separated from navigable waters by narrow linear features. Moreover,
"neighboring" should be defined in the context of the other terms used in the
definition: "bordering" and "contiguous." This interpretation of "adjacent" is
the one that is supported by the previous decision of the Supreme Court in Riverside
Bayview Homes as explained by the Court in SWANCC. The Court in Riverside observed
that Riverside's property "is part of a wetland that actually abuts on a navigable
waterway." On this basis, the Court upheld regulation of the wetland as an "adjacent"
wetland within the Corps' jurisdiction. The Court in SWANCC reinforced this opinion
when it stated that in Riverside, "we held that the Corps had 404(a) jurisdiction
over wetlands that actually abutted on a navigable waterway.
B. A non-navigable
"tributary" of a traditional navigable water means (1) that it must be part of
a continuous surface tributary system, and (2) must have a minimal stream flow
beyond simple drainage of surface water for federal jurisdiction to attach. As
stated previously in these comments, the position of the Coalition is that the
SWANCC decision limits CWA jurisdiction to traditionally navigable waters and
their adjacent wetlands. However, the Coalition acknowledges the possibility that
the agencies might issue a proposed rule that includes non-navigable tributaries
as jurisdictional "waters of the United States." If the agencies take such an
approach, the Coalition asserts that such tributaries must be part of a continuous
surface tributary system in order for jurisdiction to attach. Currently, many
Corps districts are not requiring a continuous surface connection in order to
assert jurisdiction. EPA has claimed subsequent to the SWANCC decision that surface
tributaries include underground storm water drainage systems. Historically,
however, the Corps has never regulated groundwater or waters in subsurface storm
drains as providing a continuous surface tributary connection between navigable
waters. Nor have non-tidal drainage ditches excavated on dry land normally been
considered "navigable waters. Such a change would actually trigger an expansion
of jurisdiction over pre-SWANCC limits, and is not supported by SWANCC. The Court
in SWANCC stated that "[t]he term 'navigable' has at least the import of showing
us what Congress had in mind as its authority for enacting the [Clean Water Act]:
its traditional jurisdiction over waters that were or had been navigable in fact
or which could reasonable be made so. Regulation of waters connected to navigable
waters only by groundwater tributaries, underground storm systems, or man-made
ditches constructed in uplands is not consistent with the Court's opinion in SWANCC.
Any rule issued
by the Administration should make clear that the following areas are not jurisdictional
and may not be used to connect an isolated water or wetland to a surface tributary
system: -
ephemeral areas (erosion features, areas that only drain rainwater, rain puddles);
- man-made ditches
in uplands;
- groundwater;
- surface water
runoff (sheet flow); or
- underground
stormwater drainage systems (except short culverts that direct a tributary under
a manmade structure such as a road).
The
case law since SWANCC supports limiting jurisdiction to surface waters. The U.S.
Court of Appeals for the 5th Circuit held that subsurface waters and ephemeral
"streams" were not jurisdictional waters under the Oil Pollution Act or the CWA.
Last year, the U.S. District Court for the Eastern District of Virginia ruled
that wetlands connected to traditionally navigable waters by man-made drainage
ditches and underground culverts are not subject to federal jurisdiction under
the Clean Water Act. The Newdunn case involved 38 acres of wetlands over which
the Corps asserted jurisdiction, arguing that surface water flow from Newdunn's
property was connected to traditionally navigable waters by a series of man-made
ditches and underground culverts that ran for several miles before connecting
to a tributary of the James River. The court reasoned that if such a connection
were allowed to suffice for jurisdiction, "any property connected by a drainage
pipe or culvert to navigable waters would fall under the Corps' jurisdiction .
. . ."
IV. A Rule Can be Fashioned That Differentiates the Section 404 Program from
Other CWA Programs. Other
federal courts have adopted a narrower view of the SWANCC decision. Much of that
case law has involved pollutants that move easily within the waters, such as those
regulated under Section 402 of the CWA, rather than the dredged or fill material
regulated under Section 404. Those cases did not consider that federal jurisdiction
could have been asserted without determining that the waters or wetlands in question
were "waters of the United States" in view of the limiting effect of SWANCC. The
courts could have done so by taking jurisdiction at the point where the ditch
or stream channel finally joined a traditionally navigable water by determining
that the ditch or stream channel from which the pollutant was discharged was a
discrete conveyance. In other words, the ditch or stream channel was a point source
where it discharged into a traditionally navigable water ("water of the United
States"), giving rise to jurisdiction under Section 402 of the CWA. This approach
would obviate the need to determine that a ditch, storm drain, or closed canal
system was a jurisdictional "water of the United States," a finding at odds with
the Supreme Court's decision in SWANCC. Such an approach is suitable for pollutants
that are water soluble. This is not the case with Section 404 discharges. A section
404 discharge is intended to stay where it is put. Where such a pollutant moves
into a navigable water, it can also be regulated by considering the ditch or stream
channel as a point source conveyance. The Coalition is not aware that this issue
has been directly considered by any court in the wake of the SWANCC decision.
V.
Balanced State Wetlands Regulatory Programs Should be Developed. The
Supreme Court's decision in SWANCC curbs the broad federal jurisdiction under
the CWA that has been expanded steadily by federal courts and federal agencies
since 1975. But the Court's decision by no means strips waters and wetlands of
all protection. Most coastal wetlands and many important non-tidal wetlands will
continue to be protected under the CWA. Other federal regulatory programs, such
as the Swampbuster Program administered by the Department of Agriculture, remain
in place. Many thousands of acres of wetlands are owned outright by the federal
or various state governments. In addition, nonregulatory federal programs such
as the Wetlands Reserve Program provide incentives to landowners to conserve wetlands.
Many private groups such as Ducks Unlimited also restore and preserve wetland
areas. Finally, a number of state governments already have regulatory programs
in place that regulate isolated waters. Other states may wish to develop such
programs in light of SWANCC. The
Coalition supports the development of responsible and balanced state wetlands
regulatory programs. For example, a package of materials for use in drafting state
legislation was developed in late 2001 by a group of Coalition members. The materials,
entitled "Isolated Wetlands": Elements of State Legislation and Supporting Materials,"
include a model for state wetlands legislation. These materials were prepared
in response to SWANCC to assist states in reasserting, in the words of the Supreme
Court, their "traditional and primary power over land and water use."
VI. Conclusion The
Supreme Court decided the SWANCC case in January, 2001. Regulatory guidance was
issued two years later. While providing some answers, the guidance left most critical
issues unresolved. The agencies' decision to use an (arguably standardless) "case-by-case"
approach has resulted in inconsistent jurisdictional determinations among the
38 Corps districts (and in some cases even within a single Corps district) as
well as contradictory decisions issued by the courts. The members of The National
Wetlands Coalition call on the EPA and the Corps to undertake a rulemaking in
accordance with these comments. Such action will implement faithfully the Supreme
Court's decision in SWANCC. That is all that is asked of the agencies, and all
that they are empowered to do. | 
