Other Federal Requirements

Natural Environment

Information and FHWA Guidance Jurisdictional Coverage of Isolated, Non-Navigable Intrastate Waters Under the Section 404 Permit Program

The Corps of Engineers (Corps) and Environmental Protection Agency (EPA), on January 10, 2003, issued an Advanced Notice of Proposed Rulemaking (ANPRM) and a joint memorandum establishing policy for jurisdictional determinations under the Clean Water Act (CWA) on isolated, intrastate, non-navigable waters, including wetlands and other aquatic resources, that are subject to interpretation under the Solid Waste Association of Northern Cook County (SWANCC) Supreme Court decision. The ANPRM considers CWA sections 303, Water Quality Standards; 311, Oil Spill Program; 401, Water Quality Certification; 402, NPDES, and 404, Regulatory Program for the Discharge of Dredged and Fill Material. The memorandum summarizes legal decisions and provides current guidance to Corps and EPA field offices in asserting jurisdictional authority over waters and aquatic resources in question under the SWANCC decision.

Waters of the United States, subject to jurisdictional authority under the CWA have been defined at 33 CFR 328.3(a) as:

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 (navigable waters);
2. All interstate waters, including interstate wetlands;
3. All other waters, such as intrastate lakes, rivers, and 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, including any such waters:
   1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
   2. From which fish or shell fish 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.
4. All impoundments of waters otherwise defined as waters of the United States under the definition;
5. Tributaries of waters identified in paragraphs a (1)-(4) of this section;
6. The territorial seas;
7. Wetlands adjacent to waters identified in paragraphs (1)-(6).

Paragraph (3) above is referred to in the Preamble to the Section 404 regulatory program in language that has become known as the Migratory Bird Rule (MBR) (51 Fed. Reg. 41217 (1986)). The Migratory Bird Rule has asserted that CWA jurisdiction could be extended to isolated, intrastate, non-navigable waters based on the following factors being present:

1. Use of the water as habitat by birds protected by the Migratory Bird Treaty Act;
2. Use of the water as habitat for Federally protected endangered or threatened species; or
3. Use of the water to irrigate crops sold in interstate commerce.

Due to the SWANCC decision regarding CWA jurisdiction over isolated wetlands and other aquatic habitats, Corps and EPA have issued new joint guidance to field offices in the January 10 memorandum, the main conclusions of which areas follows:

1. Neither the Corps nor the EPA will exert CWA jurisdiction over isolated, intrastate, non-navigable waters, where the sole basis for asserting CWA jurisdiction rests on the factors (a)-(c) listed under the Migratory Bird Rule, above. The joint guidance memorandum includes such isolated, intrastate, non-navigable aquatic sites as vernal pools, playa lakes, pocosins, prairie potholes, and wet meadows. In discussions with the Corps Headquarters Regulatory Office, we were told that this does not mean that these wetlands are categorically excluded from regulation. Regulation may still be asserted based on any or all of the factors in paragraph 33 CFR § 328.3(a)(3)(i)-(iii) above. The basis for exerting jurisdiction could include such uses as waterfowl hunting, bird watching, and fishing, which involve interstate travel. Corps field staff are directed to seek formal project specific approval from Headquarters prior to asserting jurisdiction over these waters using the factors stated in 328.3(a)(3)(i)-(iii).
2. Traditional navigable waters remain jurisdictional. These include isolated, intrastate waters that are navigable in fact . . . that is, capable of supporting boating.
3. Wetlands adjacent to navigable waters remain jurisdictional. Adjacent is defined as bordering, contiguous, or neighboring.
4. Wetlands adjacent to non-navigable waters that are tributaries to navigable waters remain jurisdictional.
5. Non-navigable tributaries to navigable waters remain jurisdictional, even when the distance from the tributary to the navigable water is significant. Non-navigable waters have been found jurisdictional even when the connection to a navigable water is through a man-made channel, such as a ditch or canal.

Interpretations of navigability and jurisdictional limits have varied among different Federal court districts. However, FHWA anticipates that the Corps and EPA will follow the above guidelines in applying CWA jurisdictional authority throughout all legal jurisdictions.

The Corps headquarters office has told us that the notice makes formal what is already occurring in the field. The Corps Districts, for the most part, have ceased permitting requirements for activities discharging into intrastate isolated wetlands and other waters. This was based on guidance that the Corps and EPA issued shortly after the SWANCC ruling. And last year they said they only had about a dozen calls come in for Headquarters concurrence.

The effect of Corps' instruction to their field offices will not change the need for FHWA and the State DOTs to address impacts to wetlands and provide reasonable mitigation when appropriate. FHWA is still guided by its wetlands regulation at 23 CFR 777, and Executive Order 11990, which directs Federal agencies to avoid new construction in wetlands unless there is no practicable alternative. EO 11990 makes no distinction between wetlands under the jurisdiction of the Corps and isolated, intrastate wetlands. The EO uses essentially the same definition for wetlands, as does the CWA. It specifically directs Federal agencies to provide leadership and take action to minimize the destruction, loss, or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agencies' responsibilities for a variety of actions, including providing Federally undertaken, assisted, or financed construction.

In addition, many States have their own wetlands laws, which the Corps and EPA decision on isolated wetlands will not affect. As protection from liability under the Federal and State laws protecting waters, the DOTs should continue to operate their project development processes as they have been regarding wetlands. Early in the environmental documentation process, the DOTs should alert the Corps about any wetlands in the project area and specifically list which ones they believe are not subject to jurisdiction under the CWA. If the Corps agrees, it could concur in writing, and the State has protected itself. If the Corps does not agree, or worse, if the State assumes wetlands are non-jurisdictional and does not seek early concurrence, the Corps could later maintain that the wetlands fall under its jurisdiction and the project could be delayed. If the Corps agrees that the wetland is not under its jurisdiction, the FHWA and DOT must still decide under EO 11990 if there is a practicable alternative to using the wetland area. If avoidance is not possible, then FHWA and the DOT must determine that all practicable mitigation to the wetland is considered and ultimately implemented.

We encourage the State DOTs to provide input on the ANPRM to the Corps and EPA as appropriate. The ANPRMM asks for any information or examples of experience with the permit program that would be helpful in formulating a proposed, and eventually, final rule. It also includes specific instructions for filing comments.