United States Environmental Protection Agency
/>>'" ^^ ~V Office of Wetlands, Oceans, and Watersheds
| *££L. 1 Washington, D.C. 20460
* " United States Department of the Army
U.S. Army torps 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
May 29. 1998
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, 1998. 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.
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 regulations, 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.
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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 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 "criminal 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.1
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
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.
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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.
Callawav. 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)2 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)(l) 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.
2 EPA's regulations contain equivalent (although not verbatim) definitions; the two
agencies' regulations cover the same waters. For convenience, this discussion refers to the
Corps' regulations.
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(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).
(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)(l) 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)(l) (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 dispute 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 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 Bavview 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., Ouivira 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
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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 sub, 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. 111.
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 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 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.
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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 jurisdiction over any area for any purpose
within the Fourth Circuit. Similarly, within the five states comprising the Fourth Circuit, neither
the Corps nor the EPA will assert CW A 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 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 commerce3; 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), qff'd, 639 F.2d 495 (9th
Cir. 1981), and National Association of Homebuilders v. Babbitt 130F.3d 1041 (D.C. Cir.
1997)).
3 Although Tabb Lakes, Ltd, v. United States, (715 F. Supp. 726, aff d 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.
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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.
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 public 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.
FOR THE COMMANDER:
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Robert H. Wayland, III Charles M. Hess
Director, Office of Wetlands, Oceans, Chief, Operations, Construction,
and Watersheds and Readiness Division
Office of Water Directorate of Civil Works
U.S. Environmental Protection Agency U.S. Army Corps of Engineers
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