Treacy v. Newdunn Associates, LLP

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DENNIS H. TREACY, Director, 

Department of Environmental Quality;

STATE WATER CONTROL BOARD,

Plaintiffs-Appellants,

and

UNITED STATES OF AMERICA,

Plaintiff,

v.

NEWDUNN ASSOCIATES, LLP; ORION

ASSOCIATES; NORTHWEST CONTRACTORS,

Defendants-Appellees.

MARY MARGARET WHIPPLE, Virginia

State Senator; L. PRESTON BRYANT,

Virginia State Delegate; CHESAPEAKE

BAY FOUNDATION, INCORPORATED,

 No. 02-1480

Amici Supporting Appellants.

NATIONAL ASSOCIATION OF REALTORS;

THE NATIONAL ASSOCIATION OF HOME

BUILDERS; NFIB LEGAL FOUNDATION;

NATIONAL ASSOCIATION OF

INDUSTRIAL AND OFFICE PROPERTIES;

NATIONAL MULTI HOUSING COUNCIL;

NATIONAL APARTMENT ASSOCIATION;

REAL ESTATE ROUNDTABLE; BUILDING

INDUSTRY LEGAL DEFENSE FOUNDATION;

FOUNDATION FOR ENVIRONMENTAL AND

ECONOMIC PROGRESS; INTERNATIONAL

COUNCIL OF SHOPPING CENTERS,

Amici Supporting Appellees. 

2 TREACY v. NEWDUNN ASSOCIATES

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

and

DENNIS H. TREACY, Director,

Department of Environmental Quality;

STATE WATER CONTROL BOARD,

Plaintiffs,

v.

NEWDUNN ASSOCIATES, LLP; ORION

ASSOCIATES; NORTHWEST CONTRACTORS,

Defendants-Appellees.

MARY MARGARET WHIPPLE, Virginia

State Senator; L. PRESTON BRYANT,

Virginia State Delegate; CHESAPEAKE

BAY FOUNDATION, INCORPORATED,

 No. 02-1594

Amici Supporting Appellant.

NATIONAL ASSOCIATION OF REALTORS;

THE NATIONAL ASSOCIATION OF HOME

BUILDERS; NFIB LEGAL FOUNDATION;

NATIONAL ASSOCIATION OF

INDUSTRIAL AND OFFICE PROPERTIES;

NATIONAL MULTI HOUSING COUNCIL;

NATIONAL APARTMENT ASSOCIATION;

REAL ESTATE ROUNDTABLE; BUILDING

INDUSTRY LEGAL DEFENSE FOUNDATION;

FOUNDATION FOR ENVIRONMENTAL AND

ECONOMIC PROGRESS; INTERNATIONAL

COUNCIL OF SHOPPING CENTERS,

Amici Supporting Appellees. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CA-01-508-2, CA-01-86-4, CA-01-508)

TREACY v. NEWDUNN ASSOCIATES 3

Argued: February 25, 2003

Decided: September 10, 2003

Before GREGORY and SHEDD, Circuit Judges, and

C. Arlen BEAM, Senior Circuit Judge of the

United States Court of Appeals for the Eighth Circuit,

sitting by designation.

Reversed and remanded by published opinion. Judge Gregory wrote

the opinion, in which Judge Shedd and Senior Judge Beam joined.

COUNSEL

ARGUED: Katherine J. Barton, Environment & Natural Resources

Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-

ington, D.C., for Appellant United States; John Kenneth Byrum, Jr.,

Assistant Attorney General, Richmond, Virginia, for State Appellants.

Mark Randolf Baumgartner, PENDER & COWARD, P.C., Virginia

Beach, Virginia, for Appellees. ON BRIEF: Thomas J. Sansonetti,

Assistant Attorney General, Ellen Durkee, Ethan G. Shenkman, Kent

E. Hanson, Environment & Natural Resources Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Kather-

ine D. Will, Office of General Counsel, U.S. ARMY CORPS OF

ENGINEERS, Norfolk, Virginia; Catherine Winer, Office of General

Counsel, U.S. ENVIRONMENTAL PROTECTION AGENCY,

Washington, D.C., for Appellant United States. Jerry W. Kilgore,

Attorney General of Virginia, Roger L. Chaffe, Senior Assistant

Attorney General, Rick R. Linker, Assistant Attorney General, Rich-

mond, Virginia, for State Appellants. Douglas E. Kahle, Richard H.

Matthews, PENDER & COWARD, P.C., Virginia Beach, Virginia,

for Appellees. Roy A. Hoagland, THE CHESAPEAKE BAY FOUN-

DATION, INC., Richmond, Virginia; Deborah M. Murray, SOUTH-

ERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia,

for Amici Curiae Whipple, et al. Virginia S. Albrecht, HUNTON &

WILLIAMS, Washington, D.C., for Amici Curiae Realtors, et al.

4 TREACY v. NEWDUNN ASSOCIATES

OPINION

GREGORY, Circuit Judge:

During the summer of 2001, without obtaining a permit from the

Army Corps of Engineers (the "Corps") or the Virginia State Water

Control Board (the "Board"), Newdunn Associates, Orion Associates,

and Northwest Contractors (collectively "Newdunn") began ditching

and draining wetlands on a forty-three-acre property near Newport

News, Virginia (the "Newdunn Property"). Pursuant to its authority

under the Clean Water Act ("CWA" or the "Act"), the Corps brought

a civil enforcement action in federal district court. The Board initiated

its own enforcement action in state court, premised on the Virginia

Nontidal Wetlands Resources Act of 2000 (the "Virginia Act").

Newdunn removed the state action to federal court, and the two cases

were consolidated. After a five-day bench trial, the district court ruled

for Newdunn in both cases, finding that the Corps lacked jurisdiction

over wetlands on the Newdunn Property under the Clean Water Act,

and that the jurisdictional reach of Virginia law was merely coexten-

sive with federal law. For the reasons stated below, we reverse.

I.

In 1978, Newdunn Associates purchased forty-three acres of land

located in Newport News, Virginia. It is undisputed that approxi-

mately thirty-eight acres of the Newdunn Property (the "Newdunn

Wetlands") were "wetlands," as that term is defined by the Corps in

its CWA regulations. 33 C.F.R. § 328.3(b) (2002) (defining "wet-

lands" as "those areas that are inundated or saturated by surface or

ground water at a frequency and duration sufficient to support, and

that under normal circumstances do support, a prevalence of vegeta-

tion typically adapted for life in saturated soil conditions"). Histori-

cally, before the construction of Interstate 64 ("I-64"), the wetlands

on the Newdunn Property had a natural hydrologic connection to

Stony Run, which is a navigable waterway-in-fact. Presently, the

Newdunn Wetlands remain connected to the navigable waters of

Stony Run by the intermittent flow of surface water through approxi-

mately 2.4 miles of natural streams and manmade ditches (paralleling

and crossing under I-64). Silt-laden waters from the Newdunn Wet-

TREACY v. NEWDUNN ASSOCIATES 5

lands merge with clear water flowing south of the manmade ditch on

the west side of I-64.

In May of 2001, following the Supreme Court’s ruling in Solid

Waste Agency of N. Cook County ("SWANCC") v. United States, 531

U.S. 159, 167 (2001), which struck down the Corps’ attempted exer-

cise of jurisdiction under its Migratory Bird Rule, Newdunn informed

the Corps that it believed the Corps lacked jurisdiction over the

Newdunn Property, and began filling the Newdunn Wetlands without

a permit. Newdunn argued that there were no "jurisdictional" wet-

lands on the property, even though the property contained "scientific"

wetlands. The Corps disagreed with Newdunn’s interpretation of

SWANCC, and on July 6, 2001, attempted to assert jurisdiction over

wetlands on the Newdunn Property by commencing an enforcement

action in federal district court, alleging violations of sections 301 and

404 of the Clean Water Act.

Based on the same activities, and pursuant to Virginia state law, the

Board issued an Emergency Special Order ("ESO"), mandating that

Newdunn cease stumping and grading on its property. Va. Code. Ann.

§ 62.1-44.15(8b). Newdunn ignored the ESO, and as a result, on

August 7, 2001, the Board filed a civil enforcement action in state

court, alleging violations of Va. Code Ann. §§ 62.1-44.5, 62.1-44.14,

62.1-44.15, 62.1-44.15:5, 62.1-44.23, and 62.1-44.32 (2001).

Newdunn removed the Board’s action to federal court. The Board,

claiming that the district court was without jurisdiction to consider its

case, filed a motion to remand. The court denied the Board’s motion,

and the Corps’ and the Commonwealth’s cases were consolidated for

a five-day bench trial in March of 2002.

As to the federal suit, the district court held that the Corps’ wet-

lands regulations were invalid because they exceeded Congress’ grant

of authority to the Corps under the Clean Water Act. On the state suit,

the court ruled that the Commonwealth "has been unable to show that

the Virginia Legislature has, at this time, granted regulatory authority

independently of the Corps’ jurisdiction." Accordingly, the district

court determined that the Commonwealth lacked jurisdiction over the

Newdunn Wetlands, since its authority was presumably coextensive

with the Corps’. This consolidated appeal followed.

6 TREACY v. NEWDUNN ASSOCIATES

II.

We review de novo both the district court’s statutory interpretation

of the Clean Water Act, Hughes River Watershed Conservancy v.

Glickman, 81 F.3d 437, 448 (4th Cir. 1996), and the district court’s

conclusion that it had subject matter jurisdiction over the Common-

wealth’s enforcement action, In re Celotex Corp., 124 F.3d 619, 625

(4th Cir. 1997). We review any factual findings of the district court

for clear error. Virginia Vermiculite, Ltd. v. Historic Green Springs,

Inc., 307 F.3d 277, 284 (4th Cir. 2002).

III.

A.

Before reaching the merits of either case, we must first determine

whether we have jurisdiction over the Board’s enforcement action

premised on Virginia law. In cases where state law creates the cause

of action, federal question jurisdiction is "unavailable unless it

appears that some substantial, disputed question of federal law is a

necessary element of one of the well-pleaded state claims." Franchise

Tax Bd. v. Constr. Laborers Vacation Trust, 461 U.S. 1, 13 (1983)

(emphasis added). For a federal issue to be both a necessary and dis-

puted element, "the vindication of a right under state law [must] nec-

essarily turn[ ] on some construction of federal law." Id. at 9

(emphasis added).

In the present case, the district court noted that both the Virginia

state statute and the Corps’ federal regulations define "wetlands" as

"those areas that are inundated or saturated by surface or groundwater

at a frequency and duration sufficient to support, and that under nor-

mal circumstances do support, a prevalence of vegetation typically

adapted for life in saturated soil conditions." 33 C.F.R. § 328.3(b);

Va. Code Ann. § 62.1-44.3. Based on this shared scientific definition,1

1

It is, of course, unexceptional that Virginia would elect to take advan-

tage of the Corps’ vast technical resources in elucidating the scientific

meaning of "wetlands," while at the same time making its own, unrelated

decision on when and where to exercise jurisdiction over those wetlands.

As Henry R. Butler and Jonathan R. Macey have observed:

TREACY v. NEWDUNN ASSOCIATES 7

the district court concluded "that the state statute is coextensive with

the CWA." In making this finding, however, the district court con-

fused the definition of "scientific wetlands" and "jurisdictional wet-

lands."

Newdunn concedes, and the district court recognized, that at least

thirty-eight acres of the Newdunn Property contained "wetlands" as

that term is used in both 33 C.F.R. § 328.3(b) and Va. Code Ann.

§ 62.1-44.3. Thus, from a scientific perspective, there is no disputed

federal question as to whether the Newdunn Property contains wet-

lands.2 Because the resolution of this case in no way turns upon any

interpretation of 33 C.F.R. § 328.3(b), there can be no federal ques-

tion jurisdiction based on Virginia’s decision to adopt the Corps’

technical definition of wetlands. See Franchise Tax Bd., 461 U.S. at

One real source of economies of scale associated with central-

ization of environmental regulation could be in centralized

research on technical, scientific issues that recur throughout a

number of different states . . . . These economies can be realized

by the federal government even when most policy-making and

implementation functions are handled by the states.

Henry R. Butler & Jonathan R. Macey, Using Federalism to Improve

Environmental Policy 26 (1996).

2

In fact, even if this case did involve a dispute over the scientific defi-

nition of wetlands, it is doubtful that the conflict would raise a question

of federal law. Importantly, the General Assembly did not reference or

cite to federal law in its definition of wetlands. Rather, it merely parroted

the language from the federal regulation in Va. Code Ann. § 62.1-44.3.

The fact that a state law might mimic the wording of a federal law, of

course, does not transform interpretation of the state statute into a federal

question.

Many states, for example, have "little NEPAs" on their books, which

are based on language found in federal law. See Bradley C. Karkkainen,

"Toward a Smarter NEPA: Monitoring and Managing Government’s

Environmental Performance," 102 Colum. L. Rev. 903, 905 (2002) (not-

ing that the National Environmental Policy Act, 42 U.S.C. § 4321, et

seq., "has inspired dozens of ‘little NEPAs’ at the state and local levels").

Notwithstanding the presence of mirrored language, courts applying

those statutes are interpreting state, not federal, law.

8 TREACY v. NEWDUNN ASSOCIATES

9. Stated differently, the issue is not whether the Newdunn Property

contains wetlands, but whether those wetlands are within the jurisdic-

tion of the State Water Control Board. The answer to this question is

resolved solely by looking to the Virginia Wetlands Resources Act of

2000, codified at Va. Code Ann. §§ 62.1-44.3, 44.5, 44.15, 44.15:5,

44.29 (2001).

The Virginia Act was crafted after this circuit announced its deci-

sion in United States v. Wilson, 133 F.3d 251 (4th Cir. 1997), and

after the D.C. Circuit invalidated the Corps’ Tulloch rule, which had

allowed the Corps to regulate incidental fallback as a pollutant added

to a wetland, see Nat’l Mining Assoc. v. U.S. Army Corps of Eng’rs,

145 F.3d 1399, 1404 (D.C. Cir. 1998). Following Wilson and

National Mining, and the subsequent loss of federal control over Vir-

ginia’s wetlands, nearly 10,000 acres of nontidal wetlands were

drained or were set to be drained in a period of less than six months.

See Tyler Whitley, "Nontidal Wetlands Rules Bill Expected," Rich-

mond Times-Dispatch, Dec. 1, 1999, at B4.3 Although Virginia was

losing wetlands at a dramatic pace, the State Water Control Board

was largely without authority to act. Interpreting then-existing state

law, former Attorney General Mark Earley opined, "[T]he Board [did]

not have authority to regulate wetlands beyond that contemplated by

the § 401 certification process" found in the CWA. 1999 Op. Va.

Att’y Gen. 179.

Subsequent to this 1999 opinion, environmentalists petitioned the

Virginia General Assembly to fill the regulatory vacuum. Delegate L.

Preston Bryant, Jr., responded to this call, and co-patroned a bill to

provide the state with a comprehensive, nontidal wetlands permitting

program. In a letter to then-Governor James S. Gilmore, III, Delegate

Bryant explained the need for his proposal as follows:

For many years, the federal wetlands permitting program

has fluctuated in its ability to protect Virginia’s nontidal

wetlands. This fluctuation has resulted not only from chang-

3

As Wilson and National Mining make clear, the district court erred

when it wrongly assumed that, prior to the Supreme Court’s ruling in

SWANCC, 531 U.S. 159 (2001), the Corps enjoyed "seemingly unlimited

jurisdiction."

TREACY v. NEWDUNN ASSOCIATES 9

ing administrations and policies within the federal U.S.

Army Corps of Engineers, but more recently from changing

federal case law . . . . A comprehensive state program would

remove the uncertainty created by changing federal policies

and case law decisions.

Letter from L. Preston Bryant, Jr., Delegate, to James S. Gilmore, III,

Governor (Dec. 3, 1999) (quoted in Br. of Amici Curiae Sen. Whip-

ple, et al. at 19). Delegate Bryant’s bill was ultimately passed into

law, becoming the Virginia Act at issue in this case. See S. 648, 2000

Gen. Assem., Reg. Sess. (Va. 2000); H.D. 1170, 2000 Gen. Assem.,

Reg. Sess. (Va. 2000) (amending Va. Code Ann. §§ 62.1-44.3, 44.5,

44.15, 44.15:5, 44.29). Newdunn posits that the Virginia Act was

crafted narrowly to close only the Tulloch loophole, and not to

broaden the Board’s jurisdiction within the Commonwealth. The plain

text of the Virginia Act, however, belies this contention. Virginia law

defines "state waters" broadly to include "all water, on the surface and

under the ground, wholly or partially within or bordering the Com-

monwealth or within its jurisdiction, including wetlands." Va. Code

Ann. § 62.1-44.3 (emphasis added). The words "including wetlands"

were added to the statute by the Virginia Act, without any jurisdic-

tional limitation. S. 648, 2000 Gen. Assem., Reg. Sess. (Va. 2000);

H.D. 1170, 2000 Gen. Assem., Reg. Sess. (Va. 2000). In "state

waters," Virginia law prohibits excavating, draining, filling, dumping,

or any other activity that may significantly alter or degrade a wetland

without a permit issued by the Board. See Va. Code Ann. § 62.1-44.5.

Nothing in the Virginia Act refers to the CWA’s definition of "navi-

gable waters" or the "waters of the United States." A plain reading of

the Virginia Act, therefore, makes it inconceivable that the term "wet-

lands" as it is used in the state legislation could necessarily turn on

the resolution of a question of federal law.4

4

In fact, if there were any doubt as to the meaning of the text, the legis-

lative history of the Virginia Act makes it abundantly clear that the legis-

lation was crafted, not to incorporate the CWA’s jurisdictional limits, but

rather to remedy perceived shortcomings with the jurisdictional reach of

federal law.

During the 2000 General Assembly session, legislators rejected a pro-

posal that would have limited the Board’s jurisdiction to those wetlands

10 TREACY v. NEWDUNN ASSOCIATES

Alternatively, Newdunn maintains that the Board’s jurisdiction

depends on a resolution of federal law because Va. Code Ann. § 62.1-

44.15:5 provides: "Issuance of a Virginia Water Protection Permit

shall constitute the certification required under § 401 of the Clean

Water Act." Based on this statute, Newdunn posits that the Board’s

jurisdiction must be coextensive with the Corps’. Newdunn’s theory,

however, is premised on a fundamental misunderstanding of the rela-

tionship between the federal and state permitting procedures.

Section 401(a)(1) of the CWA requires an applicant for a federal

permit to "provide the licensing or permitting agency a certification

from the State in which the discharge originates or will originate

. . . ." The Commonwealth, by enacting § 62.1-44.15:5, has taken

advantage of this federal provision, so that when federal and state

laws overlap, applicants may use their state permits to satisfy the cer-

tification requirements under section 401 of the CWA. Of course,

simply because a state permit carries the added benefit of satisfying

a potentially applicable federal requirement does not mean that the

"that are subject to federal jurisdiction under the federal Clean Water

Act." See Legislative History of S. 695, Gen Assem. Reg. Sess. (Va.

2000), available at http://leg1.state.va.us/001/bil.htm; Legislative His-

tory of H.D. 1246, 2000 Gen. Assem., Reg. Sess. (Va. 2000), available

at http://leg1.state.va.us/001/bil.htm.

Instead, lawmakers adopted an initiative that defined "wetlands" with-

out any federal jurisdictional limitation and that was crafted not only to

close the Tulloch loophole, but also "to protect and enhance the Com-

monwealth’s wetland resources" by charging the Board with designing

regulatory programs "to achieve no net loss of existing wetland acreage

and functions." See Legislative History of S. 648, Gen Assem. Reg. Sess.

(Va. 2000), available at http://leg1.state.va.us/001/bil.htm; Legislative

History of H.D. 1170, 2000 Gen. Assem., Reg. Sess. (Va. 2000), avail-

able at http://leg1.state.va.us/001/bil.htm.

As one commenter has observed, "Under Virginia’s new wetlands reg-

ulations, impacts that may have been permissible to isolated wetlands

under federal regulations will be limited in Virginia. This is because Vir-

ginia includes wetlands as part of its definition of ‘state waters.’" Lisa

Spickler Goodwin, Annual Survey of Virginia Law: Environmental Law,

37 U. Rich. L. Rev. 117, 143 (2002).

TREACY v. NEWDUNN ASSOCIATES 11

state’s jurisdictional reach turns on an interpretation of the CWA.

Undoubtedly, situations will arise where a permittee needs a state per-

mit, but no federal permit. In those situations, the state permitting pro-

cess would apply without reference to the CWA.

As the Supreme Court of Virginia recognized, "The CWA and fed-

eral regulations allow a state program to operate a discharge elimina-

tion system program in place of the federal program, provided that the

state program is authorized under state law and has standards that are

at least as stringent as the federal ones." State Water Control Bd. v.

Smithfield Foods, 542 S.E.2d 766, 768 (Va. 2001) (emphasis added).

That is, for a state’s permitting procedure to satisfy the federal

requirements of 33 U.S.C. § 1342(a), the state law must be "at least"

as exacting as the Clean Water Act, but of course, it may be more

demanding.

Even when state and federal requirements do overlap, as was the

case in Smithfield Foods, the issue of whether the Board has authority

to regulate the subject wetlands remains a question of Virginia law.

Accordingly, the Board’s jurisdiction cannot "necessarily depend" on

any interpretation of federal law, even if it happens that federal and

state laws are coextensive on the particular facts of a certain case. See

Franchise Tax Bd., 461 U.S. at 13.

The Virginia Supreme Court’s finding in Smithfield Foods that "the

interests and rights of both the [federal and state] entities [we]re

vested in a single permit" does not alter this analysis. See Smithfield

Foods, 542 S.E.2d at 770. In Smithfield Foods, because this court had

already "affirmed the finding of the district court that Smithfield was

liable," and because the United States Supreme Court denied certio-

rari, the federal determination was a final judgment for the purposes

of res judicata. Id. at 768. In the present case, while the Corps and

the Board may ultimately require Newdunn to obtain the same dis-

charge permit, no final judgment in either case has been rendered.

Depending upon how the Corps and Newdunn resolve the federal

case on remand, the Board’s interest may or may not be satisfied.

Accordingly, the Board should be permitted to pursue its rights in a

Virginia court. Of course, if either the state or federal actions were to

result in a final judgment requiring the issuance of a permit satisfying

12 TREACY v. NEWDUNN ASSOCIATES

both federal and state laws, then Newdunn might elect to file a motion

to have the unresolved action dismissed on the grounds of res judi-

cata. See Smithfield Foods, 542 S.E.2d at 771.

In sum, in light of the Virginia Act’s clear statutory language, it is

apparent that "Virginia now regulates activities in wetlands beyond its

federal mandate." Goodwin, Annual Survey of Virginia Law, 37 U.

Rich. L. Rev. at 141. It would be perverse, therefore, for this court to

conclude that the jurisdictional limits of the Virginia Act depend upon

the CWA. Any determination as to the extent of the Board’s jurisdic-

tional reach is purely a question of state law that does not require the

resolution of any federal question. Because we lack jurisdiction over

the Board’s action, we reverse the district court’s ruling on the

Board’s motion to remand, and we remand the state enforcement

action to the Virginia court from which it was improperly removed.

B.

We now turn to the only case for which federal subject matter juris-

diction exists — the Corps’ civil enforcement action premised on the

CWA.

The Federal Water Pollution Control Amendments of 1972, known

collectively as the Clean Water Act, were crafted "to restore and

maintain the chemical, physical, and biological integrity of the

Nation’s waters." 33 U.S.C. § 1251(a) (2002). To achieve this ambi-

tious goal, Congress mandated that "the discharge of any pollutant by

any person shall be unlawful" except as in compliance with the Act’s

permitting procedures. Id. § 1311. The permitting scheme at issue in

this case is articulated in section 404(a), which gives the Corps the

authority "to issue permits . . . for the discharge of dredged or fill

material into the navigable waters at specified disposal sites." Id.

§ 1344(a). The CWA defines "navigable waters" to include "the

waters of the United States, including the territorial seas," id.

§ 1362(7), and the Corps’ regulatory jurisdiction is limited by this

definition.

In 1985, the Supreme Court ruled that the Corps possessed the

authority to exercise jurisdiction over wetlands that were adjacent to

other waters, even though the wetlands themselves were not navigable

TREACY v. NEWDUNN ASSOCIATES 13

waters-in-fact. United States v. Riverside Bayview Homes, Inc., 474

U.S. 121, 139 (1985). The Court deferred to the Corps’ technical

expertise on the matter, noting the considerable difficulty, both for the

Corps and for federal courts, in defining the jurisdictional limits of the

Act. Id. at 132. The Court explained:

In determining the limits of power to regulate discharges

under the Act, the Corps must necessarily choose some

point at which water ends and land begins. Our common

experience tells us that this is often no easy task: the transi-

tion from water to solid ground is not necessarily or even

typically an abrupt one. Rather, between open waters and

dry land may lie shallows, marshes, mudflats, swamps, bogs

— in short, a huge array of areas that are not wholly aquatic

but nevertheless fall far short of being dry land. Where on

this continuum to find the limit of "waters" is far from obvi-

ous.

Id. The Corps had determined that wetlands adjacent to other waters

should be included in the definition of "waters of the United States,"

because "wetlands adjacent to lakes, rivers, streams, and other bodies

of water may function as integral parts of the aquatic environment

even when the moisture creating the wetlands does not find its source

in the adjacent bodies of water." Id. at 134-35. The Supreme Court

upheld the Corps’ exercise of jurisdiction, concluding, "We cannot

say that the Corps’ conclusion that adjacent wetlands are inseparably

bound up with the ‘waters’ of the United States — based as it is on

the Corps’ and the EPA’s technical expertise — is unreasonable." Id.

at 134.

The Supreme Court has recently reaffirmed Riverside Bayview

Homes, commenting: "It was the significant nexus between the wet-

lands and ‘navigable waters’ that informed our reading of the CWA

in Riverside Bayview Homes." SWANCC, 531 U.S. at 167; see also

United States v. Krilich, 303 F.3d 784, 791 (7th Cir. 2002) (observing

that the SWANCC Court "reaffirm[ed] its prior holding [in Riverside

Bayview Homes] that Section 404 encompassed non-navigable wet-

lands adjacent to navigable waters," but "explicitly declined to further

determine the exact meaning of ‘navigable waters’"). In SWANCC,

the Court struck down the Corps’ so-called "Migratory Bird Rule,"

14 TREACY v. NEWDUNN ASSOCIATES

which defined "waters of the United States" to include intrastate

waters, "[w]hich are or would be used as habitat by birds protected

by Migratory Bird Treaties; or . . . [w]hich are or would be used as

habitat by other migratory birds which cross state lines . . . ."

SWANCC, 531 U.S. at 164 (quoting 51 Fed. Reg. 41217). Quoting

Riverside Bayview Homes, the Court held that "Congress’ concern for

the protection of water quality and aquatic ecosystems indicated its

intent to regulate wetlands ‘inseparably bound up with the "waters"

of the United States.’" Id. at 167 (emphasis added). Thus, the Corps’

attempted exercise of jurisdiction over isolated ponds that had no

hydrologic connection whatsoever to navigable waters could not stand.5

Along similar lines, this court has previously held that the phrase

"waters of the United States" cannot be used by the Corps to assert

jurisdiction over intrastate, nonnavigable waters, solely on the ground

that those waters could possibly affect interstate commerce. United

States v. Wilson, 133 F.3d 251,253-54 (4th Cir. 1997). We explained,

"[T]o include intrastate waters that have nothing to do with navigable

or interstate waters, expands the statutory phrase ‘waters of the

United States’ beyond its definitional limit." Id. at 257-58 (emphasis

added). Accordingly, we struck down 33 C.F.R. § 328.3(a)(3),

because it attempted to give the Corps jurisdiction over any waters,

"the use, degradation or destruction of which could affect interstate

or foreign commerce . . . ." Id. at 257 (quoting 33 C.F.R. § 328.3(a)(a)

(1993)). As we held in Wilson, and as the Supreme Court affirmed in

SWANCC, the Corps’ jurisdiction does not extend to the limits of the

5

As is evident from the above discussion, Newdunn’s insistence that

SWANCC limited the Corps’ jurisdiction solely to those wetlands adja-

cent to navigable waters-in-fact is plainly incorrect. Unlike the adminis-

trative regulation at issue in Riverside Bayview Homes, the "Migratory

Bird Rule" before the Court in SWANCC was not developed to clarify the

scientifically nebulous point "at which water ends and land begins." Riv-

erside Bayview Homes, 474 U.S. at 134. Instead, the Corps’ supposed

justification for the rule was purely legal — that Congress drafted the

CWA with the intention of defining "waters of the United States" as

broadly as possible under the Commerce Clause. The Court rejected the

Corps’ interpretation of the CWA, recognizing that the Corps’ Com-

merce Clause argument would read the phrase "navigable waters" com-

pletely out of the statute. SWANCC, 531 U.S. at 172.

TREACY v. NEWDUNN ASSOCIATES 15

Commerce Clause. Rather, the critical, limiting term is ‘navigable

waters,’ as that term is defined in 33 U.S.C. § 1362(7).

In the present case, the Corps asserts jurisdiction over navigable

waters (33 C.F.R. § 328.3(a)(1)), tributaries of navigable waters

(§ 328.3(a)(5)), and "[w]etlands adjacent to waters (other than waters

that are themselves wetlands) . . ." (§ 328.3(a)(7)). The Corps defines

"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.’" 33 C.F.R. § 328.3(c). This circuit has recently concluded

that, pursuant to these regulations, the Corps intends to assert jurisdic-

tion over "any branch of a tributary system that eventually flows into

a navigable body of water." United States v. Deaton, 332 F.3d 698,

711 (4th Cir. 2003). In Deaton, the Corps claimed authority to regu-

late wetlands bordering a "roadside ditch" that took "a winding,

thirty-two mile path to the Chesapeake Bay." Id. at 702. Along the

way to the Bay, water flowed from the Deaton’s wetlands to the road-

side ditch, and then into a "culvert" on the other side of the road. Id.

Water from the culvert drained into a second ditch, which flowed into

Beaverdam Creek. Beaverdam Creek was "a direct tributary of the

Wicomico River, which [was] navigable." Id. The distance from the

Deaton’s wetlands to a navigable-in-fact river was approximately

eight miles. The Deaton court upheld the Corps’ exercise of jurisdic-

tion over all of these waters, finding that "the Corps’s regulatory

interpretation of the term ‘waters of the United States’ as encompass-

ing nonnavigable tributaries of navigable waters does not invoke the

outer limits of Congress’s power or alter the federal-state frame-

work." Id. at 708. In dismissing a Commerce Clause challenge to the

Corps’ regulations, the Deaton court summarized Congress’ well-

articulated purpose for crafting the CWA and concluded, "The Corps

has pursued this goal by regulating nonnavigable tributaries and their

adjacent wetlands. This use of delegated authority is well within Con-

gress’s traditional power over navigable waters." Id. at 707. In sum,

the Corps’ unremarkable interpretation of the term "waters of the

United States" as including wetlands adjacent to tributaries of naviga-

ble waters is permissible under the CWA because pollutants added to

any of these tributaries will inevitably find their way to the very

waters that Congress has sought to protect.

16 TREACY v. NEWDUNN ASSOCIATES

To the extent that Newdunn challenges the Corps’ decision to label

the manmade, I-64 ditch a "tributary," that argument has also been

foreclosed by Deaton. The Deaton court recognized that the Corps

has defined the word "tributary" to include "the entire tributary sys-

tem," including roadside ditches. Id. at 710. As explained above, Dea-

ton deferred to the Corps’ definition of "tributary" because

"discharges into nonnavigable tributaries and adjacent wetlands have

a substantial effect on water quality in navigable waters." Id. at 712.

That the I-64 ditch at issue in the present case is a manmade rather

than a natural watercourse is an irrelevant distinction. As the Corps

has explained:

The discharge of a pollutant into a waterway generally has

the same effect downstream whether the waterway is natural

or manmade. Indeed, given the extensive human modifica-

tion of watercourses and hydrologic systems throughout the

country, it would be difficult to identify a principled basis

in this case for distinguishing between natural watercourses

and watercourses that are wholly or partly manmade or

modified.

(Br. for the United States at 48-49.) This observation is particularly

meaningful in the present case, where the United States has exten-

sively documented the connection between the Newdunn Property’s

wetlands and the navigable waters, both before and after the construc-

tion of I-64. Because of this longstanding connection, it would be

illogical to conclude that, prior to the existence of I-64, the Newdunn

Wetlands would have been within the ambit of the Corps’ regulations,

but that now, with the construction of the highway, the wetlands are

no longer jurisdictional.

As stated before, the CWA’s primary objective is "to restore and

maintain the chemical, physical, and biological integrity of the

Nation’s waters." 33 U.S.C. § 1251(a) (2002). If this court were to

conclude that the I-64 ditch is not a "tributary" solely because it is

manmade, the CWA’s chief goal would be subverted. Whether man-

made or natural, the tributary flows into traditional, navigable waters.

Accordingly, the Corps may permissibly define that tributary as part

of the "waters of the United States." See 33 U.S.C. § 1362(7).

TREACY v. NEWDUNN ASSOCIATES 17

Turning our attention to the specific wetlands at issue in this case,

it is undisputed that water flows intermittently from wetlands on the

Newdunn Property through a series of natural and manmade water-

ways, crossing under I-64, draining into the west arm of Stony Run,

and eventually finding its way 2.4 miles later to traditional navigable

waters. As the district court found, Stony Run is "navigable-in-fact"

because the "lower reaches of Stony Run are subject to the ebb and

flow of the tide." The court further found that "Stony Run flows into

the Warwick River, which intersects with the James River, which

intersects with the Hampton Roads Harbor, which intersects with the

Chesapeake Bay." These factual findings are supported in part by

photographic evidence of silt-laden water flowing from the subject

property into Stony Run. Because there exists a sufficient nexus

between the Newdunn Wetlands and navigable waters-in-fact, the

Corps’ jurisdiction in this case is amply supported by the Act and the

Corps’ regulations under the Act.

IV.

For the reasons stated above, the ruling of the district court is

reversed. We remand the Board’s state enforcement action directly to

the Virginia state court from which it was improperly removed. We

remand the Corps’ enforcement action to the district court for further

proceedings not inconsistent with this opinion.

REVERSED AND REMANDED