Amicus Curiae Brief — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

a ether

No. 99-1178 JUL 27 2000

CLERK |

IN THE ecnsndinaittiniemnceneiannidl

Supreme Court of the United States

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

V.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

BRIEF OF AMICUS CURIAE,

CENTER FOR INDIVIDUAL RIGHTS,

IN SUPPORT OF PETITIONER

MICHAEL E. ROSMAN

Counsel of Record

Center of Individual Rights

1233 Twentieth Street, N.W.

Washington, DC 20036

(202) 833-8400

Counsel for Amicus Curiae

27A2O

TABLE OF CONTENTS

Interests of Amicus Curiae.......c.scsssessseesseeseesseessee

DONDE -icvcicerssiesiisiiniiiaiaiaaadadaa

I. Statutory and Regulatory Scheme..........:-.00-06+-3

Il. Challenging Rules under the Commerce

Raye ia% i

*

Ill. The “Migratory Bird Rule” Presents Serious

Appendix

ii

TABLE OF AUTHORITIES

Page(s)

Cases

United States v. Lopez, 2 F.3d 1342

(5th Cir. 1993), affd, 514

a snnee 1-2, 7, 10

United States v. Morrison,

| Ee Ey) nn 1-2, 6, 10

United States v. Wilson,

Bae Fates BOE CE Che. GBT) .ncoccccccocccccccocccccce: 8

United States Constitution

Article I, Section 8, Clause 3 ......cccccccccccccccccces 2,7

Statutes

Clean Water Act:

I i serene 3, 6, 7

I crrmreene 3

Regulations

I i ee cemeerennrnee 3-4

i cerneeenensconanneces 3

51 Fed. Reg. 41206 (Nov. 13, 1986) ............... 3,5

iii

TABLE OF AUTHORITIES - Continued

Page(s)

Miscellaneous

Guidance for Corps and EPA Field Offices

Regarding Clean Water Act Section 404

Jurisdiction Over Isolated Waters in Light

of United States v. James J. Wilson

(May 29, 1998) (Appendix hereto)..................+. 4

Grant S. Nelson and Robert J. Pushaw, Jr.,

Rethinking the Commerce Clause: Applying

First Principles to Uphold Federal Commercial

Regulations but Preserve State Control Over

Social Issues, 85 lowa L. Rev. 1 (1999) ........... 9

INTERESTS OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, the

Center for Individual Rights (CIR) respectfully

submits this brief amicus curiae in support of the

Petitioner.' Written consent by all parties was

granted by counsel for all parties and is being

lodged with the Clerk of this Court.

The Center for Individual Rights is a public

interest law firm. It was founded in 1989 and has

litigated cases to pursue its goal of protecting

individual liberty, broadly defined. In keeping

with that philosophy, CIR has a strong interest in

preventing the increasing hegemony of federal

power, which it believes is a threat to individual

liberty. United States v. Lopez, 514 U.S. 549, 552

(1995) (Constitution created a federal government

of enumerated powers “to ensure protection of our

fundamental liberties,” quoting Gregory v.

Ashcroft, 501 U.S. 452, 458 (1991)). To this end,

CIR has been at the forefront of the efforts to

provide meaningful limits to Congressional power

under the Commerce Clause. Most recently, CIR

represented one of the defendants, and its

General Counsel argued on behalf of both

defendants, in United States v. Morrison, 120 S.

Ct. 1740 (2000).

As interpreted by federal agencies, the

Clean Water Act regulation at issue in this case is

! Pursuant to Supreme Court Rule 37.6, Amicus Curiae

Center for Individual Rights affirms that no counsel for any

party in this case authored this brief in whole or in part;

and, further, that no person or entity has made a monetary

contribution for the preparation or submission of this brief.

ty

extraordinarily broad and can be deemed

constitutional only by a breathtakingly expansive

interpretation of the Commerce Clause. CIR

believes that this Court should carefully consider

the consequences of adopting such an

interpretation before doing so, and, accordingly,

submits this amicus brief for the Court's

consideration.

STATEMENT

The Solid Waste Agency of Northern Cook

County (SWANCC), a _ consortium of 23

municipalities, is challenging the Army Corps of

Engineers’ assertion of jurisdiction over a balefill

project pursuant to the Corps’ "migratory bird

rule," which was promulgated pursuant to the

Clean Water Act.? That rule purports to authorize

the Corps to regulate placement of fill or dredged

material on any isolated, intrastate water that

does or potentially could serve as a habitat for any

= the billions of migratory birds in the United

tates.

The Corps’ claim of jurisdiction has halted

the cooperative efforts of 23 municipalities to

dispose locally of the solid waste generated by

their citizens. In effect, the Corps has attempted

to transform what has traditionally been a matter

of local land use control into a matter controlled

by the federal government. The Corps bases its

claim of jurisdiction on the Clean Water Act (CWA)

2 A “balefill” is a landfill where baled, rather than loose.

material is dumped. There is water on the part of the site

that SWANCC intends to use as a balefill.

and the Commerce Clause, on which authority the

CWA was enacted.

The government's interpretation of those

powers in this case (as in United States v. Lopez,

514 U.S. 549 (1995) and United States v. Morrison,

120 S. Ct. 1740 (2000)) would arrogate enormous

and virtually unlimited power to the federal

government. Indeed, the “migratory bird rule” is

so broad that it is difficult to imagine a public or

private project that would not require the Corps’

approval. The Court must police the boundaries

of the enumerated powers in the Commerce

Clause, Article I, Section 8. In this case, it would

require finding that the Corps’ interpretation of

the CWA set forth in its “migratory bird rule” is

not permitted under the Commerce Clause.

ARGUMENT

I. Statutory and Regulatory Scheme

The Clear Water Act of 1972 states that the

"discharge of any pollutant by any person shall be

unlawful.” 33 U.S.C. § 1311. This rather broad

proscription is qualified by (1) exceptions listed in

other provisions of the Act which make it

permissible to discharge a pollutant under

circumstances not relevant here or with a permit

granted by an agency of the federal government,

and (2) the various definitions listed in 33 U.S.C.

§ 1362. Those definitions provide that a

“discharge of a pollutant" means “any addition of

any pollutant to navigable waters from any point

source” (33 U.S.C. § 1362(12)); a “pollutant”

includes solid waste, sewage, garbage, heat, rock,

sand, and cellar dirt (33 U.S.C. § 1362(6)); and

“navigable waters" means "the waters of the

United States" (33 U.S.C. § 1362(7)).

That last definition is further elucidated by

regulations issued by the Environmental

Protection Agency ("EPA") and the Corps.* The

Corps’ regulations define “waters of the United

States" in sweeping terms to mean:

(1) All waters which are currently used, or

were used in the past, or may be

susceptible to use in interstate commerce

or foreign commerce, including all waters

which are subject to the ebb and flow of

the tide;

(2) All interstate waters. including

interstate wetlands;

(3) All other waters such as intrastate

lakes, rivers, streams. . . wetlands, . . .

prairie potholes, . .. playa lakes, or

natural ponds, the use, degradation or

destruction of which could affect interstate

or foreign commerce including any such

waters:

(i) Which are or could be used by

interstate or foreign travelers for

recreational or other purposes; or

(ii) From which fish or shellfish are

or could be taken and sold in

interstate or foreign commerce; or

’ The Corps’ regulatory definition is set forth in 33 C.F.R. §

328.3(a); EPA’s are set forth at 40 C.F.R. 230.3(s). See 51

Fed. Reg. 41206, 41216-17 (Nov. 13, 1986). For ease of

discussion, further citations are provided only to the Corps’

definition.

(iii) Which are or could be used for

industrial purpose by industries in

interstate commerce;

(4) All impoundments of waters otherwise

defined as waters of the United States

under this definition;

(5) Tributaries of [the foregoing]... ;

(6) The territorial seas;

(7) Wetlands adjacent to [the foregoing]. . .

33 C.F.R. § 328.3.

The portion of the definition relevant here is

paragraph (3), which defines the “waters of the

United States" to include “[aJll other waters...

the use, degradation or destruction of which could

affect interstate or foreign commerce...” The

waters that fall within the scope of paragraph (3)

are “intrastate and isolated waters” (ie. “truly

isolated water bodies” that have no connection to

any tributary system that drains or flows into

traditional navigable waters or _ interstate

waterways). See Guidance for Corps and EPA

Field Offices Regarding Clean Water Act Section

404 Jurisdiction Over Isolated Waters in Light of

United States v. James J. Wilson, § 3.c, at 3 (May

29, 1998).4

In the preamble to regulations promulgated

in 1986, the Corps “clarified” that paragraph (3)

waters (ie. intrastate, isolated waters) also

include waters:

4 This joint EPA and Corps guidance is included in the

Appendix hereto and is posted on the Corps’ website at

http: //www.usace.army.mil/inet/functions/cw/cecwo/reg/

wilson.

a. Which are or would be used as habitat

by birds protected by Migratory Bird

Treaties; or

b. Which are or would be used as habitat

by other migratory birds which cross state

lines...

51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986). It is

this so-called “migratory bird rule” — not really a

rule, at least not one promulgated with notice and

comment - that the petitioner challenges as a

legally impermissible basis for federal jurisdiction.

Notably, in asserting jurisdiction under its

“migratory bird rule,” the Corps does not rely

upon any of the other paragraphs in its definition

of “waters of the United States.” For example, the

Corps does not assert that jurisdiction is

premised upon the water bodies at the SWANCC

site being “waters which are currently used, or

were used in the past, or may be susceptible to

use in interstate commerce or foreign commerce”

(paragraph 1). Nor does it assert that such water

bodies are interstate waters (paragraph 2) or

wetlands adjacent to interstate waters (paragraph

7). Rather, the “migratory bird rule” purports to

authorize the Corps to regulate placement of fill or

dredged material on any intrastate, isolated water

solely on the basis that it does or potentially could

serve as a habitat for any of the billions of

migratory birds in the United States.

The breath of this definition is sweeping.

Under the Corps’ interpretation, it has permitting

authority over any intrastate, isolated water body

even though such water body has never been

used in interstate commerce, is not being used in

interstate commerce, and is not susceptible to

being used in interstate commerce. In the Corps’

view, it can assert jurisdiction over any local

discharge of fill material into any water body if it

serves, or potentially could serve, as a habitat for

any migratory birds. Under the definition, tossing

a rock into a birdbath (or a lake or pond) without

a permit constitutes a violation of Section 1311.

So would owning a heated pool that birds find

attractive. In enacting the Clean Water Act,

Congress could not have intended to regulate

these types of activities under the rubric of

regulating water pollution.

II. Challenging Rules under the Commerce

Clause

Under the Court's current Commerce

Clause jurisprudence, Congress can pass three

kinds of statutes: it may regulate the channels of

interstate commerce, it may regulate’ the

instrumentalities of interstate commerce, or

persons or things in commerce, and it may

regulate intrastate activities having a substantial

relation to interstate commerce, ie. activities that

substantially affect interstate commerce. United

States v. Morrison, 120 S. Ct. 1740, 1749 (2000).

Under the last branch of that jurisprudence, two

features deserve emphasis. First, the trivial

nature of the interstate commerce effects of one

instance of the intrastate conduct being regulated

is irrelevant, so long as the cumulative effects of

all instances have a_ substantial effect on

interstate commerce. Second, the Court has only

permitted this theory to be used when the

conduct being regulated is economic in nature.

Id. at 1751.

Any challenge to a statute that is defended

as an exercise of Congress’ authority under the

third branch of Commerce Clause jurisprudence,

the "substantial effects" branch, must be a facial

challenge (since the trivial nature of the effects of

individual instances is irrelevant). Since SWANCC

is precluded from making an argument about the

minimal effects of its own conduct, it must

challenge the statute as a whole. In doing so, the

question is whether the conduct being regulated

by the statute as a whole is "economic" in nature.

What SWANCC itself was planning to do is

irrelevant, just as Alfonso Lopez's possession of a

gun so that he could deliver it for $40 was

irrelevant to the outcome in United States uv.

Lopez, 2 F.3d 1342, 1345 (5 Cir. 1993), affd,

514 U.S. 549 (1995).

III. The “Migratory Bird Rule” Presents

Serious Constitutional Difficulties

The question of concern to CIR is whether

Congress, under its Article 1, § 8, power to

regulate “Commerce among the states,” has

authority so sweeping in scope as to allow the

Corps to regulate activities in intrastate, isolated

water bodies under the Corps’ “migratory bird

rule.” In focusing on the Commerce Clause

implications of the Corps “migratory bird rule,”

CIR takes no position on whether the “rule” is a

reasonable interpretation of the term "navigable

waters.” Of course, if the Court finds that the

— ee ~—~

“rule” is not a proper interpretation of the CWA, it

might not reach the Constitutional issue.

While the original statute, limited to truly

navigable waters that are part of an interstate

system or waterways used for travel, might have

been constitutional as a regulation of the

channels of interstate commerce (the first kind of

Commerce Clause legislation), Section 1311

cannot be so defended as interpreted by the Corps

and EPA. As interpreted, it regulates the

"discharge" of a “pollutant” (e.g., “fill material”)

into virtually any body of water in the United

States. Given the interpretations of those terms

by the agencies, the statute cannot reasonably be

interpreted as regulating the channels of

interstate commerce, and the lower courts and

respondents have not tried to defend the statute

on that ground. Rather, it has been defended

solely as an exercise of Congress’ authority to

regulate intrastate activities having a "substantial

effect" on interstate commerce. And, under the

“substantial effect” test, the Corps’ “migratory bird

rule” cannot reasonably be defended.

In fact, at least one Circuit has ruled that

the Corps’ paragraph (3) definition of intrastate,

isolated waters -- the rule that the “migratory bird

rule” purports to clarify - is an impermissible

exercise of Congress’ authority under the third

branch of Commerce Clause jurisprudence, the

"substantial" effects" branch. The Fourth Circuit

in United States v. Wilson, 133 F.3d 251 (4 Cir.

1997), has held invalid the Corps’ paragraph (3)

definition of intrastate, isolated waters because it

exceeded the Corps’ regulatory power under the

10

Clean Water Act. 133 F.3d at 257. The court

noted that, had Congress enacted the paragraph

(3) intrastate, isolated waters definition as a

statute, “it would present serious constitutional

difficulties . . . under the Commerce Clause,”

because it does not require that the regulated

activity have a substantial effect on interstate

commerce, nor that those waters have any nexus

to interstate or navigable waters. Ibid. Because

the paragraph (3) intrastate, isolated waters

definition is not a statute, the court refused to

presume that Congress had authorized that Corps

“to assert its jurisdiction in such a sweeping and

constitutionally troubling manner.” Ibid.

Here, the conduct being regulated as a

whole is primarily non-economic in nature. Even

if people sometimes pollute for economic reasons

(because it is easier than disposing of it in a costly

fashion), that does not mean it is economic

activity. People often murder for economic

reasons, but murder is not "economic" activity

subject to Congress’ Commerce Clause power.

Economic activity involves an exchange between

two or more uncoerced parties. See Grant S.

Nelson and Robert J. Pushaw, Jr., Rethinking the

Commerce Clause: Applying First Principles to

Uphold Federal Commercial Regulations but

Preserve State Control Over Social Issues, 85 lowa

Law Rev. 1 (1999). The activity which is

“discharging pollutants,” including the throwing of

rocks in a birdbath, is not economic activity.

Nor has there been a showing that the

purported cumulative effect of balefilling on an

intrastate, isolated water body would have a

11

substantial effect on migratory birds or on

interstate commerce. Any arguable link between

the regulation of isolated, intrastate water bodies

and a purported substantial effect on interstate

commerce is attenuated, at most.

If the theory of the Corps were adopted by

the Court, it would give Congress the power to

regulate virtually every aspect of land and water

use throughout the United States. Taking down a

bird feeder in one’s backyard, and thus making it

less hospitable to birds that travel in interstate

commerce, would be an act subject to Congress’

Commerce Clause authority. Growing a garden

that could attract flying insects that travel across

state lines (or harvesting and consuming the

produce that migratory birds might consume in

that garden) would be an act subject to Congress’

Commerce Clause authority. And, swatting flies

that travel in interstate Commerce would be

within Congress’ Commerce Clause authority.

The Court has recently held (in Lopez and

Morrison) that Congress cannot regulate non-

economic acts that nave some effect on human

beings’ ability to travel in interstate commerce. It

would be (to say the least) passing strange to

suggest that Congress can regulate non-economic

acts that have some long-range effect on the

ability of birds or insects to travel in interstate

commerce. So long as it is for the Courts, and not

Congress or federal agencies, to determine the

scope of the Commerce Clause Authority, the

Court must reject assertions of that authority that

would grant Congress. virtually unlimited

authority to regulate all aspects of our daily lives

12

and relegate the States to trivial and unimportant

actors in the federal system.

Respectfully submitted,

MICHAEL E. ROSMAN

Counsel of Record

Center of Individual Rights

1233 Twentieth Street, N.W.

Washington, DC 20036

(202) 833-8400

Counsel for Amicus Curae

APPENDIX

United States Environmental Protection

Agency

Office of Wetlands, Oceans, and Watersheds

Washington, D.C. 20460

United States Department of the Army

U.S. Army Corps of Engineers

Washington, D.C. 20314

Guidance for Corps and EPA Field Offices Regarding

Clean Water Act Section 404 Jurisdiction Over Isolated

Waters

in Light of United States v. James J. Wilson

1. INTRODUCTION

a. On December 23, 1997, the U.S. Court of Appeals for the

Fourth Circuit issued a decision in the case of United States v.

Wilson, 133 F. 3d 251 (4th Cir. 1997). The decision resulted

from an appeal from criminal convictions for discharging

dredged and fill material into wetland areas subject to Clean

Water Act (CWA) jurisdiction in Charles County, Maryland,

by Mr. Wilson and two corporations, without obtaining the

required CWA Section 404 permits. The Fourth Circuit

overturned Mr. Wilson's criminal conviction because it

identified legal errors in the jury instructions used in the case,

as explained below. A petition for panel rehearing was denied

January 26, i998. The decision itself, press accounts of the

decision, inquiries from the public, and discussions with Corps

and EPA staff in the five states that comprise the Fourth

Circuit all indicate the need for guidance regarding

interpretation and implementation of that decision and

restating the Corps’ and EPA's longstanding interpretation of

the regulations that describe CWA Section 404 jurisdiction

over the various categories of waters of the United States.

l

b. The purpose of this memorandum is to explain the Wilson

decision, to provide general guidance on the regulations

concerning jurisdiction, and to provide specific guidance on

jurisdiction applicable to the Fourth Circuit in light of Wilson.

This guidance does not change the substantive requirements of

existing Corps or EPA _ zulations, except to the extent

necessary to comply with the decision of the Fourth Circuit

Court of Appeals in the states comprising the Fourth Circuit.

As described below, within the five states comprising the

Fourth Circuit, the Corps and EPA will adhere to the holdings

of law in the Wilson decision. At the same time, within the

Fourth Circuit states, both the Corps and EPA will continue to

assert CWA jurisdiction over any and all isolated water

bodies, including isolated wetlands, based on the CWA statute

itself, where (1) either agency can establish an actual link

between that water body and interstate or foreign commerce

and (2) individually and/or in the aggregate, the use,

degradation or destruction of isolated waters with such a link

would have a substantial effect on interstate or foreign

commerce. This approach addresses the concerns of the Fourth

Circuit regarding jurisdiction over these waters.

2. SCOPE OF THE DECISION

a. The three-judge panel of the Court of Appeals that decided

the case produced three separate written opinions. In reading

the decision, it is important to remember that the three-judge

panel produced legally binding holdings of law regarding only

three matters: (1) the “criminal intent” that a judge and/or jury

must find in order to convict any person of a criminal violation

of the CWA, (2) whether the provision of the Corps regulation

defining CWA jurisdiction over "isolated" water bodies (i.e.,

33 CFR 328.3(a)(3)) is authorized by the CWA, and (3) the

admissibility of expert testimony on legal interpretations. The

United States believes that the Fourth Circuit's holdings of law

on the first two issues were incorrect, and we reserve the right

2

to litigate these issues in other circuits. The Fourth Circuit's

decision in the Wilson case is not binding outside the Fourth

Circuit, and therefore will not be implemented outside the

Fourth Circuit (i.e., outside the states of Maryland, Virginia,

West Virginia, North Carolina, and South Carolina). The first

of the holdings of the Wilson decision (i.e., regarding

“cnminal intent") is primarily of concern to the U.S.

Department of Justice (DOJ) whenever DOJ is considering

whether, or how, to bring a criminal enforcement action under

the CWA; the third holding relates to the conduct of trials.

Neither of these issues will be discussed further in this

memorandum. The focus of this memo is the issue of CWA

jurisdiction.”

b. In addition to the three binding holdings of law noted

above, two judges set out their views in conflicting,

nonbinding discussions of two additional matters: (1) whether

the CWA authorizes the United States to assert jurisdiction

over “adjacent” wetlands even if those wetlands do not have a

direct or indirect surface connection to other waters of the

United States, and (2) whether the CWA authorizes the United

States to assert CWA jurisdiction over the "sidecasting” of

dredged material into waters of the United States during

ditching or dredging activities in waters of the U.S. Because

no binding decisions were reached on these matters, the Corps

and EPA will continue to assert jurisdiction over adjacent

wetlands and sidecasting activities consistent with our existing

regulations and guidance. We believe that the opinion of

Judge Payne, one of the judges on the panel, reflects a sound

understanding of those regulations.

c. The Fourth Circuit's holding of law from Wilson that we

must address is the following:

"we conclude that 33 CFR 328.3(a)(3) (1993) (defining

waters of the United States to include those waters whose

degradation ‘could affect’ interstate commerce) is unauthorized

by the Clean Water Act as limited by the Commerce clause

and therefore is invalid. . . ." (Slip opinion, page 3).

Although the Corps and EPA strongly disagree with that

holding, we must implement it throughout the Fourth Circuit

unless and until it is overruled or clarified in the context of

another court decision. Consequently, in the Fourth Circuit,

neither the Corps nor the EPA will cite or rely upon 33 CFR

328.3(a)(3) as the basis for asserting CWA jurisdiction over

any area, until further notice. Nevertheless, this change in

operating procedures does not necessarily mean that either the

Corps or the EPA will decline to assert jurisdiction over any

aquatic area in the Fourth Circuit states, for the reasons

explained below.

3. GENERAL GUIDANCE REGARDING CWA

JURISDICTION

a. In the Federal Water Pollution Control Act Amendments of

1972, the Congress directed the Federal Executive Branch to

assert jurisdiction over all waters of the United States subject

to Federal constitutional authority (primarily the authority of

the "Commerce Clause” of the U.S. Constitution). (See, e.g.,

Conference Report, S. Rep. No. 236, 92d Cong., 2d Sess. at

144, reprinted in U.S. Code Cong. & Admin. News, p. 3822

(1972).) When the EPA and the Corps assert CWA

jurisdiction nationwide over all waters of the United States,

including wetlands, we are carrying out that statutory

mandate. The Federal Courts have consistently upheld, and, in

fact, required, this broad assertion of Federal jurisdiction

under the CWA. (See, e.g., NRDC v. Callaway, 392 F. Supp.

685 (D.D.C. 1975); United States v. Ashland Oil &

Transportation Co., 504 F.2d 1317 (6th Cir. 1974); United

States v. Byrd, 609 F. 2d 1204 (7th Cir 1979).)

b. The Corps of Engineers regulation at 33 CFR Part 328.3(a)

4

® is intended to interpret, explain, and implement the CWA's

statutory mandate to assert jurisdiction over all "waters of the

United States” subject to Federal constitutional authority.

These regulations provide an interpretive definition of the

term "waters of the United States" (i.e., those aquatic areas

subject to Federal CWA jurisdiction), as follows:

1. First, paragraph (a)(1) defines the term "waters of the

United States” to include all of the traditional

navigable waters of the United States (i.e., “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”).

2. In addition, paragraph (a)(2) defines "waters of the

United States" to include: "All interstate waters

including interstate wetlands”.

3. The next paragraph, (a)(3), further defines "waters of

the United States” to include all water bodies

(including all wetlands) that are intrastate and isolated

(i.e., that do not eventually drain or flow into

traditional navigable waters or interstate waters), but

which still have connections with interstate or foreign

commerce, and are subject to Federal jurisdiction

under the Commerce clause.

4. The next paragraph, (a)(4), further defines "waters of

the United States” to include any impoundment of any

water body otherwise defined as a water of the United

States under any other paragraph in 33 CFR 328.3(a).

5. The next paragraph, (a)(5), further defines "waters of

the United States” to include all tributaries of any

water body identified as a water of the United States

under paragraphs (1) through (4) of 33 CFR 328.3(a).

5

6. The next paragraph, (a)(6), further defines "waters of

the United States” to include the territorial sea.

7. Finally, paragraph (a)(7) defines "waters of the United

States" to include all wetlands adjacent to any water

body defined as a water of the U.S. in paragraphs

(a)(1) through (6).

c. It must be emphasized that 33 CFR 328 3(a)(3) applies only

to, and should be cited only regarding, CWA jurisdiction over

truly isolated water bodies (i.e., intrastate lakes, streams,

prairie potholes, etc.) that have no connection with any

tributary system that flows into traditional navigable waters or

interstate waters. For any water body, including any wetland,

that is part of, or flows into, or is a wetland adjacent to, a

tributary system of traditional navigable waters or interstate

waters, one should not cite 33 CFR 328.3(a)(3), but instead

cite the relevant subsections of 33 CFR 328.3(a), such as

subsection (a)(1) (covering traditional navigable waters);

(a)(2) (covering interstate waters); (a)(5) (covering tributaries

to navigable or interstate waters); and/or (a)(7) (covering

adjacent wetlands). Of course, outside the Fourth Circuit, if

the Corps and/or EPA determines that a water body is in fact

isolated and intrastate, then 33 CFR 328.3(a)(3) may be cited

as the basis for CWA jurisdiction. If there is a factual dispuie

over whether a water body is isolated, 33 CFR 328.3(a)(3)

may be cited (outside the Fourth Circuit) as an alternative

basis for jurisdiction with appropriate documentation included

as to why it applies.

d. There are also two practical reasons why EPA and the

Corps strongly prefer to assert and document CWA

jurisdiction over an aquatic area as part of a tributary system

to traditional navigable waters, or as wetlands adjacent to such

a tributary system, rather than as an "isolated," intrastate water

body under 33 CFR 328.3(a)(3). First, there is a more

6

conclusive body of case law supporting CWA jurisdiction

over an aquatic area based on that area's status as part of, or

wetlands adjacent to, a tributary system to traditional

navigable waters, rather than as isolated waters. The U.S.

Supreme Court, in United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121 (1985), and many lower Federal Courts in

other cases, have clearly upheld Federal CWA jurisdiction

over all tributaries to traditional navigable waters, and over

wetlands adjacent to those tributaries, based on the fact that,

for example, pollutants placed in such tributaries or their

adjacent wetlands can migrate through the tributary system

into traditional navigable waters, and that flood storage

eliminated upstream can cause flooding in the downstream

tributary system. These principles apply whether a portion of

the tributary system is intermittent or perennial (See, e.g.,

Quivira Mining v. U.S. Environmental Protection Agency, 765

F. 2d 126 (10th Cir. 1985), cert. denied, 474 U.S. 1055

(1986)). The Supreme Court has not yet directly addressed

CWA jurisdiction over "isolated," intrastate water bodies that

do not flow into tributaries to traditional navigable waters,

although a number of lower federal courts have upheld federal

CWA jurisdiction over isolated water bodies, including

isolated wetlands. See, e.g., Hoffman Homes, Inc., v. EPA,

999 F.2d 256 (7th Cir. 1993); Leslie Salt Co. v. United States,

896 F. 2d 354 (9th Cir. 1990); Leslie Salt Co v. United States,

55 F.3d 1388 (9th Cir. 1995), cert. denied suo. nom. Cargill,

Inc. v. United States, 116 S. Ct. 407 (1995); United States v.

Byrd, 609 F.2d 1204 (7th Cir. 1979); SWANCC v. U.S. Army

Corps of Engineers, 1998 U.S. Dist. Lexis 3994 (N. Dist. Ill.

1998).

e. The second reason is a matter of ease of proof. When a

water body is shown to be part of a tributary system to

interstate or traditional navigable waters, that usually easily-

established fact is sufficient to show that the water body can

be regulated by the federal government under the commerce

7

clause. United States v. Ashland Oil and Transportation Corp.

504 F.2d 1317 (6th Cir. 1974). For isolated waters under 33

CFR 328.3(a)(3), each water body must have its own nexus

with interstate commerce: that is, the use, degradation or

destruction of the isolated water body could affect interstate

commerce (e.g., the water body in question would support the

hunting of migratory game birds or other animals, or the

harvesting of timber or other products, or the trapping of fur-

bearing animals, or is suitable habitat for migratory birds,

etc.). Paragraph (a)(3) of the regulation sets out a non-

exclusive list of ways an isolated water body could have the

necessary commerce connection. Additional examples are set

out in preamble language (51 Fed. Reg. 41,217 (Nov. 13,

1986), 53 Fed. Reg. 20,765 (June 6, 1988)). This preamble

discussion reflects a September 12, 1985, memorandum by the

General Counsel of EPA explaining and asserting Clean Water

Act jurisdiction over isolated waters based on their use by

migratory birds and federally listed endangered or threatened

species. Of course, for a particular "isolated," intrastate water

body, Corps or EPA field staff may be able to document only

some relatively small-scale connections between that water

body and interstate and foreign commerce (e.g., that the

isolated water body serves as habitat for migratory birds).

Nevertheless, EPA and the Corps believe, and if necessary

will demonstrate, that each of these classes of interstate

commerce-related activities associated with isolated waters

(e.g., migratory bird usage of isolated waters), taken as a

whole or in the aggregate, has a substantial effect on interstate

or foreign commerce, as required by United States v. Lopez,

514 U.S. 549, 1995.

4. GUIDANCE SPECIFIC TO THE FOURTH CIRCUIT

a. The remainder of this guidance addresses assertion of

jurisdiction over isolated waters within the Fourth Circuit until

further notice. Although the written opinion in the Wilson case

8

regarding 33 CFR 328.3(a)(3) is not entirely clear, it appears

that the Court's fundamental objection to that provision of the

Corps’ regulation is that, by its terms, 33 CFR 328.3(a)(3)

asserts CWA jurisdiction over isolated water bodies based on

their potential, as opposed to actual, connections with

interstate or foreign commerce. The court seemed concerned

that this language fell short of the "substantial effect test." .

Consequently, the court declared that 328.3(a)(3) was invalid

because it exceeded Congressional intent.

b. As stated above, while the Corps and EPA believe that the

court's decision regarding the legality of the Corps’

jurisdictional regulation is wrong, we will fully comply with

and implement the Fourth Circuit's holding in the Wilson case

(within the states constituting the Fourth Circuit) so long as it

represents the controlling law on this point within the Fourth

Circuit. Consequently, until further notice, neither the Corps

nor the EPA will cite or rely upon the regulatory provision of

33 CFR 328.3(a)(3) as a basis for asserting CWA junisdiction

over any area for any purpose within the Fourth Circuit. ay

Similarly, within the five states comprising the Fourth Circuit,

neither the Corps nor the EPA will assert CWA jurisdiction

over any isolated, intrastate water body where the only basis

that the Government can establish for such jurisdiction would

be potential effects on interstate or foreign commerce.

c. Nevertheless, both the Corps and EPA will continue to

assert CWA jurisdiction over any and all isolated water .

bodies, including isolated wetlands, within the Fourth Circuit,

based on the CWA statute itself, where (1) either agency can

establish an actual link between that water body and interstate

or foreign commerce, and (2) individually and/or in the

aggregate, the use, degradation or destruction of isolated

waters with such a link would have a substantial effect on

interstate or foreign commerce. Those actual connections with

and effects on interstate or foreign commerce may include all

9

of the types of actual effects on interstate or foreign commerce

that the Corps and EPA have traditionally relied on: for

example, use for recreation by interstate or foreign travelers;

use for taking fish or shellfish sold in interstate or foreign

commerce; use by industries operating in interstate or foreign

commerce; use by migratory waterfowl, other game birds, or

other migratory birds that are sought by hunters, birdwatchers,

or photographers, or are protected by international treaty,

thereby affecting interstate commerce “; or use by federally

listed endangered or threatened species. Corps and EPA

headquarters will be compiling information on the aggregate

effects of various activities On interstate commerce, so that, as

the need arises, the Corps and EPA can document that, in the

aggregate, the use, degradation, or destruction of isolated

water bodies would have substantial effects on interstate or

foreign commerce. Existing case law will assist this endeavor

(e.g., for migratory birds see Hoffman Homes, 961 F.2d 1310

(7th Cir. 1992); for interstate travelers see Byrd, 609 F.2d

1204, 1209 (7th Cir. 1979); for endangered species, Palila, 471

F. Supp. 985, 991-995 (D. Haw. 1979), aff'd, 639 F.2d 495

(9th Cir. 1981), and National Association of Homebuilders v:

Babbitt, 130 F.3d 1041 (D.C. Cir. 1997)).

d. Corps and EPA field offices within the Fourth Circuit

should make it clear to members of the regulated public that

both agencies will still assert jurisdiction over isolated water

bodies, including isolated wetlands, on a case-by-case basis

within the Fourth Circuit states, based on the CWA statute

itself, where there is an actual connection between such water

bodies and interstate or foreign commerce, and the effect on

such commerce, individually and/or in the aggregate, is

substantial. The Corps and EPA will work to minimize any

delays or inconveniences to the regulated public that might

attend the establishment of the actual connections with

interstate or foreign commerce for individual isolated water

bodies.

10

e. Previously issued Section 404 permits authorizing

discharges into isolated waters in the Fourth Circuit remain in

effect as issued. The Corps and the EPA do not believe that

the Fourth Circuit's decision in the Wilson case requires the

Corps to modify such previously issued permits or to delete

permit conditions requiring compensatory mitigation for

activities in isolated water bodies, or to delete other permit

conditions relating to such waterbodies. Moreover, to the

extent that jurisdiction over isolated waters is established as

identified above, no modifications to existing practice for

normal compensatory mitigation or other permit conditions are

necessary for permits issued in the future for activities in

isolated water bodies.

5. FURTHER INFORMATION

a. In the near future, EPA and the Corps intend to promulgate

a rule addressing the jurisdictional issues discussed in this

guidance, with full opportunity for 7 review and

comment.

b. If you have any questions regarding this guidance

memorandum, please contact your local EPA Regional Office

or Corps District Office. For EPA Headquarters, please call

John Goodin at (202) 260-9910. For Corps Headquarters,

contact Sam Collinson at (202) 761-0199.

Robert W. Wayland, III /s/ 5/29/98

Director, Office of Wetlands, Oceans, and

Watersheds

Office of Water

U.S. Environmental Protection Agency

11

FOR THE COMMANDER:

Charles M. Hess /s/ 5/29/98

Chief, Operations, Construction, and

Readiness Division

Directorate of Civil Works

U.S. Army Corps of Engineers

1. The issue addressed by the court's opinion was whether the

wetlands in question were jurisdictional, not how to determine

whether an area is a wetland.

2. EPA's regulations contain equivalent (although not

verbatim) definitions: the two agencies’ regulations cover the

same waters. For convenience, this discussivn refers to the

Corps’ regulations.

3. Although Tabb Lakes, Lid. v. United States, (715 F. Supp.

726, affd without opinion, 885 F.2d 866 (4th Cir., 1989)),

concluded that EPA/Corps guidance could not be cited as the

legal basis for interstate commerce nexus using migratory

birds because that guidance had been issued without notice

and comment, the decision did not prohibit the use of

migratory birds to establish a connection to interstate

commerce under the Clean Water Act. Consequently,

notwithstanding the Fourth Circuit's decision in Tabb Lakes,

Corps and EPA field offices should continue to assert CWA

jurisdiction over all isolated, intrastate water bodies that serve

as habitat for migratory birds.

12