United States Department of Justice
United States Army Corps of Engineers
United States Environmental Protection Agency - Region 4
SOUTHEASTERN FEDERAL
WETLANDS
ENFORCEMENT CONFERENCE
Atlanta, Georgia
February 11 - 12,2003

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Southeastern Federal Wetlands Enforcement Confrrence
Working Agenda
Tuesday. February 11
12:45 p.m. Welcome and Introductions - Tom Welborn, Chief
Wetlands, Coastal and Non-Point Source Branch, Region 4 EPA
Opening Remarks James D. Giattina, Director
Water Management Division, Region 4 EPA
1:00 - 2:15 Tulloch Discussion
Moderators - Stephen Samuels, USDOJ
- Mike Wylie, Regjon 4 EPA
2:15-2:30 Break
2:30 - 3:45 SWANNC Discussion
Moderators - Stu Santos, Jacksonville Corps of Engineers
- Stephen Samuels, USDOJ
3:45 -4:00 Break
4:00 - 5:15 Silviculture issues
Moderators - Tom Welbom and Paul Schwartz, Region 4 EPA
5:15 Session Ends
7:30 Group Dinner - If Desired
Wednesday, February 12. 2003
8:30 a.m. Reconvene, Welcome - Ron Mikulak, Chief
Wetlands Regulatory Section, Region 4 EPA
8:45 - 9:30 Agriculture Memorandum of Agreement
Moderators - Charlie Crosby, Charleston Corps of Engineers
- Randy Clark, Memphis Corps of Engineers
9:30 - 9:45 Break
9:45 - 10:45 Documenting Violations or What Attorney’s Want From The Field To Win A Ca e
Moderators - Martin McDermott, USDOJ
- Philip Mancusi-Ungaro, Region 4 EPA
10:45 - 12:00 What Are The Section 404 Enforcement Concerns and Priorities In Your District
Moderators, Mike Wylie and Paul Schwartz, Region 4 EPA
12:00pm Adjourn

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Southeastern Federal Wetlands Enforcement Conference
Table of Contents for Binder
TAB
FINAL AGENDA Before Tab 1
Tulloch Discussion - Moderators - Stephen Samuels, USDOJ
- Mike Wylie, EPA Region 4
• National Mining Decision
- Revision to Definition of Discharge of Dredged Material
- Borden Ranch - Government’s Supreme Court Brief
SWANCC Discussion - Moderators - Stu Santos, Jacksonville Corps of Engineers 2
- Stephen Samuels, USDOJ
- SWANCC ANPRM and GUIDANCE
- Summary of Post-S WANCC Caselaw
- SWANCC Decision
- Riverside-Bayview Decision
Silviculture Issues - Moderators - Tom Welborn and Paul Schwartz, Region 4 EPA 3
- Southeastern Mechanical Site Preparation Guidance
- 1985 OGC Opinion on 404(t)
- Draft Fact Sheet Re: Silvicultural Activities in Wetlands
-40 CFR Section 232.3
- Weyerhaeuser Special Matter Determination
- Clean Water Act Section 404(f)
Agriculture Memorandum of Agreement -
Moderators - Charlie Crosby, Charleston Corps of Engineers 4
- Randy Clark, Memphis Corps of Engineers
- National Ag MOA Concerning Delineation of Wetlands for CWA and Food Security Act
- South Carolina Local Ag MOA
- Example of a State Mapping Convention
- Section 404/Agriculture Information Document
Documenting Violations or What Attorneys Want From The Field To Win A Case 5
Moderators - Martin McDermott, USDOJ
- Philip Mancusi-Ungaro, Region 4 EPA
- Sample Form for Field Investigation Report
What Are The Section 404 Enforcement Concerns and Priorities In Your District 6
Moderators, Mike Wylie and Paul Schwartz, Region 4 EPA
- COE/EPA 404 Enforcement MOA
PARTICIPANT LIST AND CONTACT INFORMATION 7

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Page 1
United States Court of Appeals,
District of Columbia Circuit.
NATIONAL MINiNG ASSOCIATION, Ct al.,
Appellees,
V.
U.S. ARMY CORPS OF ENGINEERS, et al,
Appellants.
“discharge” defined as any “addition” of pollutant to
navigable waters, in light of fact that incidental failback
was part of net withdrawal of material from waters
rather than “addition,” and regardless of exemptions to
Act’s permitting requirements for discharges of dredged
material for specified activities. Federal Water
Pollution Control Act Amendments of 1972, § 404,
404(f)(l), 502(12), 33 U.S.C.A. 661344, l344(fl(l),
1362(12); 33 C.F.R. 6 323.2(d)(l ) .
Nos. 97-5099,97-5112.
Argued Jan. 9, 1998. -- -.
Decided June 19, 1998.
Mining organization and others sued Army Corps of
Engineers and environmental organizations, challenging
Tulloch rule that incidental fallback that accompanies
dredging is subject to Clean Water Act’s pennitting
provision for “discharge” of dredge or fill material.
The United States District Court for the District of
Columbia, Stanley S. Harris, J., 951 F.Supp. 267 .
entered judgment for plaintiffs. Appeal was taken.
The Court of Appeals, Stephen F. Williams, Circuit
Judge, held that: (1) Tulloch rule exceeded Corps’
authority under Act to regulate any “addition” of
pollutant to navigable waters; (2) facial challenge to
administrative regulation as incompatible with
governing statutory law was subject to deferential
Chevron test rather than tougher standard requiring
showing that no set of circumstances exists under which
rule would be within the agency’s authority; (3) district
court was not required to make explicit findings as to
elements necessary for permanent injunction; and (4)
permanent injunction against enforcement of Tulloch
rule was appropriately given nationwide application.
Affirmed.
Silberrnan, Circuit Judge, filed a concurring opinion.
West Headnotes
LU Environmental Law 136
149Ekl36 Most Cited Cases
(Formerly 270k38)
Army Corps of Engineers’ Tulloch rule subjecting any
redeposit, including incidental fallback, during dredging
operations to permit requirements of Clean Water Act
exceeded Corps’ authority under Act to regulate
121 Administrative Law and Procedure 390.1
I 5Ak390. I Most Cited Cases
Facial challenge to administrative regulation as
incompatible with governing statutory law is subject to
deferential Chevron test rather than tougher standard
for facial challenges to statutes requiring showing that
no set of circumstances exists under which rule would
be within the agency’s statutory authority.
J .1 Injunction 189
212k189 Most Cited Cases
District courts enjoy broad discretion in awarding
injunctive relief.
Jj [ Environmental Law 700
I49Ek700 Most Cited Cases
(Formerly 270k38)
District court was not required to make explicit findings
as to elements necessary for permanent injunction
before permanently enjoining Army Corps of Engineers
or Environmental Protection Agency (EPA) from
enforcing Tulloch rule subjecting incidental fallback
during dredging operations to permit requirements of
Clean Water Act, in light of court’s declaration that rule
was facially invalid. Federal Water Pollution Control
Act Amendments of 1972, § 404,33 U.S.C.A. 6 1344;
33 C.F.R. 6 323.2(d)(1) .
j j Environmental Law 700
l49Ek700 Most Cited Cases
(Formerly 270k38)
District court’s permanent injunction against
enforcement of Army Corps of Engineer’s Tulloch rule
subjecting incidental fallback during dredging
operations to permit requirements of Clean Water Act,
after court found rule to be facially illegal, was
appropriately given nationwide application, rather than
limited only to provide relief to plaintiffs in instant
case, in order to avoid flood of duplicative litigation.
145 F.3d 1399
46 ERC 1769, 1999 A.M.C. 908, 141 Oil & Gas Rep. 198,28 Envtl. L. Rep. 21,318
(Cite as: 145 F.3d 1399, 330 U.S.App.D.C. 329)

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Page 2
Federal Water Pollution Control Act Amendments of
1972, § 404, 33 U.S.C.A. 61344; 33 C.F.R. 6
323.2(d )(1 ) .
* 1400 * *330 Appeals from the Umted States District
Court for the District of Columbia (No. 93cv01754).
Ronald M. Spritzer, Attorney, U.S. Department of
Justice, argued the cause for the federal appellants.
With him on the bnefs were Lois J. Schiffer , Assistant
Attorney General, David C. Shilton, Alice L. Mattice ,
Attorneys, and Steven Neugeboren, Counsel, U.S.
Environmental Protection Agency.
Howarc I. Fox argued the cause and filed the bnefs for
appellants National Wildlife Federation, et al.
Virginia S. Albrecht argued the cause for appellees
National Mining Association, Ct al. With her on the
brief were Gary J. Smith and Harold P. Ouinn. Jr.
Lawrence R. Liebesman , Robin L. Rivett, M. Reed
Hopper, Robert J. Saner. II , and Nancie G. Marzulla
were on the brief for amici curiae City of Colorado
Springs, Colorado, et at.
Tom Udall, Attorney General, State of New Mexico,
Alletta Belin, Assistant Attorney General, Winston
Bryant, Attorney General, State of Arkansas, J. Joseph
Curran, Jr., Attorney General, State of Maryland,
Jeremiah W. Nixon, Attorney General, State of
Missouri, Joseph P. Mazurek, Attorney General, State
of Montana, Frankie Sue Del Papa, Attorney General,
State of Nevada, W.A. Drew Edmondson, Attorney
General, *1401 **331 State of Oklahoma, William H.
Sorrell, Attorney General, State of Vermont, and
Christine 0. Gregoire, Attorney General, State of
Washington, were on the brief for amici curiae State of
New Mexico, et al.
Before: SILBERMAN, WILLIAMS and SENTELLE ,
Circuit Judges.
Opinion for the Court filed by Circuit Judge
STEPHEN F. WILLIAMS .
Concurring opinion filed by Circuit Judge
SILBERMAN.
STEPHEN F. WILLIAMS , Circuit Judge:
Section 404 of the Clean Water Act (the “Act”)
authorizes the United States Army Corps of Engineers
(the “Corps”) to issue permits “for the discharge of
dredged or fill material into the navigable waters at
specified disposal sites.” 33 U.S.C. 61344 . Section
301(a) of the Act provides that the “discharge of any
pollutant by any person” is unlawful unless in
compliance with Act’s permit requirements, including
those of § 404. Id. § 1311(a). “Discharge,” in turn, is
defined as “any addition of any pollutant to navigable
waters from any point source.” Id. 6 1362(12) .
In 1986 the Corps issued a regulation defining the term
“discharge of dredged material,” as used in § 404, to
mean “any addition of dredged material into the waters
of the United States,” but expressly excluding “de
mimmis, incidental soil movement occurring during
normal dredging operatIons.” 51 Fed.Reg. 41.206.
41.232 (Nov. 13. 1986) . In 1993, responding to
litigation, the Corps issued a new rule removing the de
minimis exception and expanding the definition of
discharge to cover “any addition of dredged material
into, including any redeposit of dredged material
within, the waters of the United States.” 33 CFR 6
323 . 2(d)( I ) (emphasis added). Redeposit occurs when
material removed from the water is returned toit; when
redeposit takes place in substantially the same spot as
the initial removal, the parties refer to it as “fallback.”
In effect the new rule subjects to federal regulation
virtually all excavation and dredging performed in
wetlands.
The plaintiffs, various trade associations whose
members engage in dredging and excavation, mounted
a facial challenge to the 1993 regulation, claiming that
it exceeded the scope of the Corps’s regulatory authority
under the Act by regulating fallback. The district court
agreed and granted summary judgment for the
plaintiffs. American M,nin Con2ress v. United States
Army Corps of Engineers. 951 F.Sunr. 267
( D.D.C.l997 ) . The district court also entered an
injunction prohibiting the Corps and the Environmental
Protection Agency, who jointly administer § 404, from
enforcing the regulation anywhere in the Umted States.
Id at 278 . We affirm.
* **
The Act sets up two independent permitting systems.
See 33 U.S.C. 6 1311(a) . Section 402 authorizes EPA
(or state agencies in some circumstances) to issue
National Pollutant Discharge Elimination System
(“NPDES”) permits to control the discharge of
wastewater into navigable waters. Section 404, the
provision at issue in this case, authorizes the Corps,
with EPA oversight, to issue permits “for the discharge
of dredged or fill material into the navigable waters at
specified disposal sites.” Id. 6 1344(a). FFNI1 At the
time ofthe Act’s passage in 1972, the Corps already had
jurisdiction over navigational dredging under Section

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Page 3
10 of the Rivers and Harbors Act of 1899,33 U.S.C.
403.
E! L The challenged regulation does not
address discharge of”fihl material,” which the
Corps defines as “any material used for the
primary purpose of replacing an aquatic area
with dry land or of changing the bottom
elevation of an [ sic] waterbody.” 33 CFR
323.2(e) .
For the purposes of the Act, the phrase “navigable
waters” has been construed to include wetlands. United
States v. Riverside Bavview Homes. 474 U.S. 121.
131-32 & n. 8. 106 S.Ct. 455. 88 L.Ed.2d 419 (1985 )
(upholding as not unreasonable an interpretation by the
Corps that the Act is applicable to wetlands “adjacent
to but not regularly flooded by rivers, streams, and
other hydrographic features more conventionally
identifiable as ‘waters’ “). FFN21 Wetlands, m turn, are
defined *1402 **332 by the Corps as areas “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
vegetation typically adapted for life in saturated soil
conditions.” 33 CFR 328.3(b) . The United States
Fish and Wildlife Service estimated that as of the I 980s
there were 104 million acres of wetlands in the
contiguous United States--about five percent of the total
land surface of the lower 48 states. T.E. DahI,
Wetlands Losses in the United Slates 1780’s to 1980’s
5 (U.S. Fish & Wildlife Service 1990). (Because so
much of Alaska is wetlands by the prevailing definition,
the proportion rises to twelve percent if all 50 states are
included.) Id. The plaintiffs assert that seventy-five
percent of wetlands in the United States are privately
owned. Plaintiffs’ Br. at 6.
Ei 2.. Compare United States v Wilson. 133
F.3d 251. 257 (4th Cir.1997 ) (holding that
regulations purporting to reach wetlands
whose degradation or destruction “could
affect” interstate or foreign commerce were
beyond statutory authorization because they
would “include intrastate waters that need
have nothing to do with navigable or interstate
waters.”).
In 1977 the Corps promulgated regulations that
generally tracked the statutory language, defining
“discharge of dredged material” as “any addition of
dredged material into the waters of the United States,”
with a few limited exceptions. 42 Fed.Reg. 37,145
(July 19, 1977). A new regulation issued in 1986
exempted from the permit requirement “de minimis,
incidental soil movement occurring during normal
dredging operations.” 51 Fed.Reg. at 4 1.232 .
Although this regulation did not define “normal
dredging operations,” its preamble gave some guidance
as to the exemption’s coverage:
Section 404 clearly directs the Corps to regulate the
discharge of dredged material, not the dredging
itself. Dredging operations cannot be performed
without some fallback. However, if we were to
define this fallback as a “discharge of dredged
material,” we would, in effect, be adding the
regulation of dredging to section 404 which we do
not believe was the intent of Congress.
Id. at 41,210. The parties agree that the 1986 rule
did, however, regulate “sidecasting,” which involves
placing removed soil in a wetland but at some distance
from the point of removal (e.g., by the side of an
excavated ditch). See 58 Fed.Reg. 45.008. 45.013/3
( Aug. 25. 1993 ) (noting that sidecasting has “always
been regulated under Section 404.”).
The 1993 rulemaking under challenge here was
prompted by a lawsuit, North Carolina Wildlife
Federation v Tulloch, Civ. No. C90-7 I 3-CIV-5-BO
(ED. N.C. 1992), concerning a developer who sought to
drain and clear 700 acres of wetlands in North Carolina.
See 58 Fed.Reg. at 45.016 . Because the developer’s
efforts involved only minimal incidental releases of soil
and other dredged material, the Corps’s field office
personnel determined that, under the terms of the 1986
regulation, § 404’s permit requirements did not apply.
Environmental groups, concerned by what they viewed
as the adverse effects of the developer’s activities on the
wetland, filed an action seeking enforcement of the §
404 permit requirement. As part of the settlement of
the Tulloch case (a settlement to which the developer
was not a party), the two administering agencies agreed
to propose stiffer rules governing the permit
requirements for landclearing and excavation activities.
The result--the regulation at issue here—has come to be
called the “Tulloch Rule.”
As mentioned above, the Tulloch Rule alters the
preexisting regulatory framework primarily by
removing the de minimis exception and by adding
coverage of incidental fallback. Specifically, the rule
defines “discharge of dredged material” to include
“ [ a]ny addition, including any redeposit, of dredged
material, including excavated material, into waters of
the United States which is incidental to any activity,
including mechanized landclearing, ditching,
channelization, or other excavation.” 33 CFR 6
323.2(d )( l)(iii ) (emphasis added). IFN31

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Page 4
fm., EPA promulgated a parallel rule, which
is codified at4O CFR 6 232.2(1)(iii) .
The Tulloch Rule does have its own de minimis
exception, but it is framed in terms of the Act’s overall
goals. A permit is not *1403 **333 required for “any
incidental addition, including redeposit, of dredged
material associated with any activity that does not have
or would not have the effect of destroying or degrading
an area of waters of the United States.” 33 CFR 6
323.2(d)(3)(i) . Persons engaging in “mechanized
landclearing, ditching, channelization and other
excavation activity,” however, bear the burden of
proving to the Corps that their activities would not have
destructive or degrading effects. Id Degradation is
defined as any effect on the waters of the United States
that is more than de minimis or inconsequential. Id j
323.2(d)(5) . Thus, whereas the 1986 rule exempted de
minimis soil movement, the Tulloch Rule covers all
discharges, however minuscule, unless the Corps is
convinced that the activities with which they are
associated have only minimal adverse effects. In
promulgating the new rule the Corps “emphasize [ d] that
the threshold of adverse effects for the de minimis
exception is a very low one.” 56 Fed.Ree. at 45.020 .
It is undisputed that by requiring a permit for “any
redeposit,” 33 CFR 6 323.2(d )(1 ) (iii ) (emphasis added),
the Tulloch Rule covers incidental failback. According
to the agencies, incidental faliback occurs, for example,
during dredging, “when a bucket used to excavate
material from the bottom of a river, stream, or wetland
is raised and soils or sediments fall from the bucket
back into the water.” Agencies’ Br. at 13. (There is no
indication that the rule would not also reach soils or
sediments falling out of the bucket even before it
emerged from the water.) Faliback and other
redeposits also occur during mechanized landclearing,
when bulldozers and loaders scrape or displace wetland
soil, see 58 Fed.Reg. 45.017-18 . as well as during
ditching and channelization, when draglines or
backhoes are dragged through soils and sediments. See
id at 45.018 . Indeed, failback is a practically
inescapable by-product of all these activities, in the
preamble to the Tulloch Rule the Corps noted that “it is
virtually impossible to conduct mechanized
landclearing, ditching, channelization or excavation in
waters of the United States without causing incidental
redeposition of dredged material (however small or
temporary) in the process.” Id. at 45.017 . As a result,
the Tuioch Rule effectively requires a permit for all
those activities, subject to a limited exception for ones
that the Corps in its discretion deems to produce no
adverse effects on waters of the United States.
The plaintiffs claim that the Tulloch Rule exceeds the
Corps’s statutory jurisdiction under § 404, which, as we
have noted, extends only to “discharge,” defined as the
“addition of any pollutant to navigable waters.”
U.S.C. 661344, 1362(12) . It argues that fallback,
which returns dredged material virtually to the spot
from which it came, cannot be said to constitute an
addition of anything. Therefore, the plaintiffs contend,
the Tulloch Rule conflicts with the statute’s
unambiguous terms and cannot survive even the
deferential scrutiny called for by Chevron (IS A., Inc
NRDC. 467 U.S. 837. 104 S.Ct. 2778. 81 L.Ed.2d
694 (1984) . The “jurisdictional” character of the issue
has no effect on the level of deference, Oklahoma
Natural Gas Co v. FERC. 28 F.3d 1281. 1283-84
( D.C.Cir. 1994) , as the plaintiffs seem to acknowledge
by their silence on the subject.
The agencies argue that the terms of the Act in fact
demonstrate that faliback may be classified as a
discharge. The Act defines a discharge as the addition
of any pollutant to navigable waters, 33 U.S.C. 6
1362(12) , and defines “pollutant” to include “dredged
spoil,” as well as “rock,” “sand,” and “cellar dirt.” Id.
6 1362(6) . The Corps in turn defines “dredged
material” as “material that is excavated or dredged from
waters of the United States,” 33 CFR 6 323.2(c) , a
definition that is not challenged here. Thus, according
to the agencies, wetland soil, sediment, debns or other
matenal in the waters of the United States undergoes a
legal metamorphosis during the dredging process,
becoming a “pollutant” for purposes of the Act. If a
portion of the material being dredged then falls back
into the water, there has been an addition of a pollutant
to the waters of the United States. Indeed, according
to appellants National Wildlife Federation et a!.
(“NWF”), who intervened as defendants below, this
reasoning demonstrates that regulation of redeposit is
actually required by the Act.
* 1404 * *334JJJ We agree with the plaintiffs, and with
the district court, that the straightforward statutory term
“addition” cannot reasonably be said to encompass the
situation in which material is removed from the waters
of the United States and a small portion of it happens to
fall back. Because incidental fallback represents a net
withdrawal, not an addition, of material, it cannot be a
discharge. As we concluded recently in a related
context, “the nearest evidence we have of definitional
intent by Congress reflects, as might be expected, that
the word ‘discharge’ contemplates the addition, not the
withdrawal, of a substance or substances.” North
Carolina v. FERC. 112 F.3d 1175. 1187
( D.C.Cir.1997 ) . The agencies’ primary
counterargument—that fallback constitutes an “addition
of any pollutant” because matenal becomes a pollutant
* * *

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Page 5
only upon being dredged--is ingenious but
unconvincing. Regarciless of any legal metamorphosis
that may occur at the moment of dredging, we fail to
see how there can be an addition of dredged material
when there is no addition of material. Although the
Act includes “dredged spoil” in its list of pollutants,
U.S.C. 6 1362(6) . Congress could not have
contemplated that the attempted removal of 100 tons of
that substance could constitute an addition simply
because only 99 tons of it were actually taken away.
IFN41
EIii The unreasonableness of the agencies’
statutory interpretation was illustrated by some
of the hypotheticals posed at oral argument.
For instance, counsel for ihe agencies
admitted that under their interpretation of the
term “discharge” in § 301(a), it “might very
well” be permissible to require any landowner
in the United States wishing to cut down a tree
in a wetland to obtain a § 402 permit, since 33
U.S.C. 6 1362(6 ) defines “pollutant” to
include “biological material.” Oral Arg. Tr.
at 22. Siniilarly, counsel agreed that the Corps
could require a permit to nde a bicycle across
a wetland under its interpretation of § 404,
althoug i bicycle-riding seems--for now--to be
exempted under the Tulloch Rule as an
activity that does not generally destroy or
degrade waters of the United States. Oral
Arg. Tr. at 25; see 58 Fed.Reg. at 45.023
(indicating that “walking, grazing, vehicular
traffic, and boating” would not generally be
regulated).
In fact the removal of material from the waters of the
United States, as opposed to the discharge of material
into those waters, is governed by a completely
independent statutory scheme. Section 10 of the
Rivers and Harbors Act of 1899, 33 U.S.C. 6 403 .
makes it illegal “to excavate or fill” in the navigable
waters of the United States without the Corps’s
approval. As the general counsel of the Army noted in
a law review article published a few years after the
passage of the Clean Water Act, Congress enacted “two
separate statutory frameworks. Section 10 of the 1899
Act covers the act of dredging, while Section 404 [ of
the Clean Water Act] covers the disposal of the dredged
material.” Charles D. Ablard and Brian B. O’Neill,
Wetland Protection and Section 404 of the Federal
Water Pollution Control Act Amendments of 1972: A
Corps of Engineers Renaissance, 1 Vt. L.Rev. 51, 93
(1976).
Rule effectively requires a permit for all mechanized
landclearing, ditching, channelization or excavation in
waters of the United States, see 58 Fed.Reg. at 45.017 ,
locate their permitting requirement under § 404, not
under the Rivers and Harbors Act’s explicit coverage of
“excavat [ ion].” The explanation for this choice is
apparently that the scope of the Corps’s geographic
jurisdiction is narrower under the Rivers and Harbors
Act than under the Clean Water Act, extending only to
waters subject to the ebb and flow of the tide, or waters
that are used, have been used, or may be susceptible for
use to transport interstate or foreign commerce. fl
CFR 6 329.4 ; see also id. § 328.1 (noting difference
between geographicjurisdiction under the two statutes).
There may be an incongruity in Congress’s assignment
of extraction activities to a statute (the Rivers and
Harbors Act) with a narrower jurisdictional sweep than
that of the statute covering discharges (the Clean Water
Act). This incongruity, of course, could be cured
either by narrowing thejurisdictional reach of the Clean
Water Act or broadening that of the Rivers and Harbors
Act. FFN51 But we do not think the agencies can
* 1405 **335 doit simply by declaring that incomplete
removal constitutes addition.
FNS. Of course it is conceivable that even if
the statutes were construed to cover the same
geographic jurisdiction, some activities—
perhaps some kinds of mechanized
landclearing--might still lie beyond the reach
of both. Any such lacuna--as the agencies
would clearly perceive it—would of course be
simply a function of Congress’s decisions.
The agencies also point to some specific exemptions
set forth in § 404(f) of the Act in support of their view
that fallback can reasonably be said to constitute
discharge. Congress added the subsection in 1977,
apparently in response to the broad construction of
“discharge” in the 1977 regulations. It provides that
“the discharge of dredged or fill material ... is not
prohibited ... or otherwise subject to regulation” under
the Act’s permitting requirements when the discharge
results from any of a number of specifically exempted
activities, including “normal farming, silviculture, and
ranching activities such as plowing, seeding,
cultivating, [ or] minor drainage,” 33 U.S.C. 6
l344(f)(l)(A ) , and “maintenance of drainage ditches,”
id. 1 344(fl( I ) (C) . After listing these exemptions, §
404(f) provides that a permit shall nonetheless be
required for any activity “having as its purpose bringing
an area of the navigable waters into a use to which it
was not previously subject, where the flow or
circulation of navigable waters may be impaired or the
The agencies, thou&i acknowledging that the Tulloch

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Page 6
reach of such waters be reduced.” Id. 5 1 344(fl(2) .
The agencies claim these exemptions show that as a
general matter Congress considered failback to be
covered by § 404. They especially note that §
404(f)(1) uses the term “discharge of dredged or fill
material” to describe the consequences of the protected
activities, supposedly reflecting a congressional belief
that faliback is a form of discharge.
We find the exemptions far less telling. Some of the
named activities-- plowing, ditch maintenance, and the
like--may produce fallback, but they may also produce
actual discharges, i.e., additions of pollutants, so that §
404(f) accomplishes a useful purpose simply by
exempting them insofar as they produce the latter.
Some others, such as seeding, seem to us just as
unlikely to produce fallback as actual discharge, so we
are reluctant to draw any inference other than that
Congress emphatically did not want the law to impede
these bucolic pursuits.
NWF complains that our understanding of “addition”
reads the regulation of dredged material out of the
statute. They correctly note that since dredged material
comes from the waters of the Umted States, 33 CFR 6
323.2(c) , any discharge of such material into those
waters could technically be described as a “redeposit,”
at least on a broad construction of that term. The Fifth
Circuit made a similar observation fifteen years ago:
‘ [ D]redged’ material is by definition material that comes
from the water itself. A requirement that all pollutants
must come from outside sources would effectively
remove the dredge-and-fill provision from the statute.”
A voyelles Sportsmen’s League v Marsh. 715 F.2d 897.
924 n. 43 (5th Cir. I 983 . But we do not hold that the
Corps may not legally regulate some forms of redeposit
under its § 404 permitting authority. IFN61 We hold
only that by asserting jurisdiction over “any redeposit,”
including incidental faliback, the Tulloch Rule outruns
the Corps’s statutory authority. Since the Act sets out
no bright line between incidental faliback on the one
hand and regulable redeposits on the other, a reasoned
attempt by the agencies to draw such a line would merit
considerable deference. Cf. Dubois v. US. Den’r of
ARriculture, 102 F.3d 1273. 1296-99 (1st Cir. 1996 )
(although movement of pollutants within the same body
of water might not constitute an “addition” for purposes
of NPDES permit requirement, movement from one
body of water to a separate one with different water
quality is an addition). But the Tulloch Rule makes no
effort to draw such a line, and indeed its overriding
purpose appears to be to expand the Corps’s permitting
authority to encompass incidental fallback and, as a
result, a wide range of activities that cannot remotely be
said to “add” anything to the waters of the United
States.
Even the plaintiffs concede that under a
broad reading of the term “redeposit,” “a
redeposit could be an addition to [ a] new
location and thus a discharge.” Plaintiffs’ Br.
at 17.
The agencies cite opinions from several other circuits
in support of the proposition that redeposit may be
regulated under § 404. *1406 **336 Because all of
these decisions predated the Tulloch Rule, however,
none addressed the fallback issue directly. Indeed,
none of them contains any language suggesting that
regulation of fallback would be proper.
In Avovelles . for example, the Fifth Circuit held that
the § 404 permit requirement applied to a large-scale
mechamzed landclearing project in Louisiana.
Although the court held that “ [ t]he word ‘addition,’ as
used in the definition of the term ‘discharge,’ may
reasonably be understood to include ‘redeposit,’ “fl.
F.2d at 923 . it did not consider incidental failback at all.
Rather, it simply held that the deliberate leveling of
sloughs that had formerly contained rainwater, for the
purpose of replacing an “aquatic area” with dry land,
constituted a discharge of fill material. Id. at 924-25 .
(It did not even reach the question whether the activities
were “a discharge of dredged material.” Id. at 925.
Similarly, the Eleventh Circuit did not reach the
fallback issue in its decision in United Slates v. M. C C.
of Florida. 772 F.2d 1501 (11th Cir.1985) , vacated on
other grounds, 481 U.S. 1034. 107 S.Ct. 1968. 95
L.Ed.2d 809 (1987) , readopted in relevant part on
remand, 848 F.2d 1133(11th Cir. 1988) , finding instead
that a construction company had displaced dredged
spoil from the bottom of a waterway “onto the adjacent
sea grass beds,” 772 F.2d at 1506 . a displacement that
seems analytically more similar to sidecasting than to
failback. IFN71
E L As for sidecasting, we note that after the
briefs were submitted in this case a divided
panel of the Fourth Circuit issued opinions
concerning whether that activity may properly
be regulated under the Act. Judge Niemeyer
held that sidecastmg does not constitute an
“addition” within the meaning of the Act,
Judge Payne held that it does, and Judge
Luttig joined neither opinion. See Wilson.
133 F.3d at 258-60 (opinion of Niemeyer, J.);
id at 272-75 (opinion of Payne, J.).
Perhaps the strongest authority for the agencies’
position is Rybachek v EPA. 904 F.2d 1276 (9th

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Page 7
Cir.1990) . There the Ninth Circuit found that the Act
permitted EPA to regulate placer mining, a process in
which miners excavate dirt and gravel in and around
waterways, and, after extracting the gold, discharge the
leftover material back into the water. Rybachek held
that the material separated from gold and released into
the stream constituted a pollutant, and, to the extent that
“the material discharged originally comes from the
streambed itself, [ its] resuspension [ in the stream] may
be interpreted to be an addition of a pollutant under the
Act.” Id at 1285. Rvbachelc would help the agencies
if the court had held that imperfect extraction, i.e.,
extraction accompanied by incidental failback of dirt
and grael, constituted “addition of a pollutant,” but
instead it identified the regulable discharge as the
discrete act of dumping leftover material into the stream
after it had been processed. Finally, Minnehaha Creek
Watershed District v Hoffman. 597 F.2d 617 (8th
Cir. I 979 , held simply that the construction of dams
and riprap fall within § 404 because they involve “the
placement of rock, sand or cellar dirt into the body of
water.” Id. at 626. FFN81
Eb1 In addition, our decision today is wholly
consistent with National Wildlife Federation
v. Gorsuch. 693 F.2d 156 (D.C.Cir.1982) , in
which we held that EPA’s interpretation of the
term “addition” “must be accepted unless
manifestly unreasonable.” Id. at 175 . For the
foregoing reasons we find the agencies’
reading of “addition” as including incidental
fallback to be just that.
The agencies make one last-ditch argument in defense
of the Tulloch Rule, relying on the fact that the
plaintiffs have raised a facial challenge to its validity.
In effect, the agencies argue that the deferential
Chevron test should be replaced in the ontext of facial
attacks by an even more lenient standard—an
administrative-law version of the test used by the
Supreme Court to evaluate a facial constitutional
challenge to a statute in United States v. Salerno. 481
U.S. 739. 107 S.Ct. 2095. 95 L.Ed.2d 697 (l987 .
Salerno said that a “facial challenge to a legislative Act
is, of course, the most difficult challenge to mount
successflully, since the challenger must establish that no
set of circumstances exists under which the Act would
be valid.” Id at 745. 107 S.Ct. 2095. FFN91 So here,
argues *1407 **337 the Corps, the Tulloch Rule must
be upheld if any set of circumstances exists under which
the rule would be within the Corps’s statutory authority.
EN2. The Salerno test does not apply in the
area of First Amendment free speech rights,
where statutes with some valid applications
may nonetheless be struck down for
overbreadth. See Salerno. 481 U.S. at 745.
107 S.Ct. 2095 .
If the Salerno approach applies here at all, it does so
with a wrinide. The plaintiffs raise a facial challenge to
a 1993 rulemaking which broadened the scope of the
preexisting 1986 regulation, but they do not deny that
the earlier rule had valid applications. Thus, as even
the Corps concedes, the plaintiffs’ burden under a
Salerno approach would be to show that the
incremental regulation represented by the Tulloch Rule
is invalid under every set of circumstances; to show, in
other words, that the Corps would be acting ultra vires
every time it required a permit under the 1993 rule that
it could not have required under the 1986 rule.
Once this wrinkle has been added, we are not at all sure
that the plaintiffs fail to carry the Salerno burden. At
oral argument, counsel for the agencies gave three
examples of discharges to which he said the Tulloch
Rule could be validly applied but that the old rule did
not cover: (1) mechanized landclearing, (2) fallback at
vanous distances from the point of removal, and (3)
resuspension of dredged material in a body of water.
Oral Mg. Tr. at 29- 30, 47-48, 102. Most discharges
in these three categories, however, would appear to
have been regulable by the Corps before the enactment
of the Tulloch Rule. Subjection of mechanized
landcleanng to § 404 permit requirements was upheld
pre-Tulloch, in Avovelles . As for redeposits at some
distance from the point of removal, the agencies’
assertion that sidecasting has “always been regulated
under Section 404,’ 58 Fed.Re . at 45.013 . places such
conduct within the pre -Tulloch core. But see United
Slates v. Wilson. 133 F.3d 251. 25 8-60 (Niemeyer, J.)
(4th Cu. 1997) (summarized in note 7 above). Finally,
if by “resuspension” counsel for the agencies was
referring to activities like the one at issue in Rvbachek
(removal of dirt and gravel from a streambed and its
subsequent redeposit in the waterway after segregation
of gold), the pre-Tulloch rule clearly suffices. And if
counsel meant “resuspension” to cover excavation or
dredging accompanied by incidental fallback (in other
words, as the agencies concede, virtually every act of
excavation or dredging), it contradicts the statutory
requirement of an addition.
This leaves at most some marginal cases that might fall
outside the scope of pre-Tulloch regulation but would
still qualify as additions under the Act. Such cases
might include incidental soil movements occurring in
normal dredging operations that nonetheless somehow
result in a transfer “between unrelated water bodies of
different water quality.” Dubois. 102 F.3d at 1297-98 .

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Page 8
We express no opinion as to how the Dubois concept
of an addition might apply, if at all, to the sort of
“waters” primarily at issue here, that is, wetlands.
j j Yet we need not determine precisely how far the
Tulloch Rule goes beyond the preexisting regulations,
for we hold that the Salerno standard does not apply
here. The Supreme Court has never adopted a “no set
of circumstances” test to assess the validity of a
regulation challenged as facially incompatible with
governing statutory law. Indeed, the Court in at least
one case, Sullivan v. Zebley. 493 U.S. 521. 110 S.Ct.
885. 107 L.Ed.2d 967(1990) , upheld a facial challenge
under r.ormal Chevron standards, despite the existence
of clearly valid applications of the regulation. The
statute required the Department of Health and Human
Services to cover all children who suffered from
disabilities of”comparable seventy” to those that would
disable an adult, Id at 529. 110 S Ct. 885 . but HHS’s
rule excluded some who would have been considered
disabled had they been adults. Although some of the
exclusions were clearly perfectly proper under the
statute, the Court invalidated the rule, saying that “a
facial challenge [ was] a proper response to the systemic
dispanty between the statutory standard and [ HHS’s]
approach to child-disability claims.” Id at 537 n. 18.
11OSCt 885 .
Our own cases confirm that the normal Chevron test is
not transformed into an even more lenient “no valid
applications” test just because the attack is facial. We
have on several occasions invalidated agency
regulations challenged as facially inconsistent with
governing statutes despite the presence of* 1408 * *338
easily imaginable valid applications. See, e.g., Health
Ins. Ass’n of America. Inc. v Shalala. 23 F.3d 412.
418-20 (D.C.Cir. 1994 ) (holding that agency exceeded
statutory authority in enacting regulation concerning
Medicare payment recovery, because rule plainly
covered some situations in which recovery was barred
by statute).
To be sure, the Supreme Court has recently suggested
that it may take a more Salerno-like line on facial
challenges to regulations. In Babbitt v. Sweet Home
Chapter of Communities for a Great Oreaon. 515 U.S.
687. 115 S.Ct. 2407. 132 L.Ed 2d 597 (1995) , the
Court upheld a regulation promulgated by the Secretary
of the Interior interpreting the word “harm” in the
Endangered Species Act. The Court noted that
because the parties attacking the regulation were
proceeding on a facial basis, “they ask us to invalidate
the Secretary’s understanding of ‘harm’ in every
circumstance,” Id. at 699. 115 S.Ct. 2407 . which the
Court declined to do. There is no indication, however,
that this observation in any way contributed to the result
in that case. The Court did not sustain the regulation
on the basis of a few hypothetical instances of valid
application; instead, it held that the Secretary’s
understanding of “harm” was a reasonable
interpretation of the statute in general. See !L t
696-708. 115 S.Ct. 2407 . As Justice Scalia noted in
dissent, it would have been remarkable for the Court to
find that the regulation omitted an element made
essential by the statute, and then proceed to uphold the
regulation against facial attack because that element
might happen to be present on the facts of a particular
case. See id. at 731-32. 115 S.Ct. 2407 (Scalia, I.,
dissenting). The same can be said here: by purporting
to cover “any redeposit,” the Tulloch Rule eschews the
Act’s “addition” requirement. A facial attack on the
rule should not fail simply because the Corps might
apply it to cases where an addition is present.
Although we reject the agencies’ proposed extension of
Salerno . we emphasize that it is quite distinct from the
familiar proposition that a court should reject a facial
challenge, either as unripe or mentless, when the
challenger’s success turns on the assumption that the
agency will exercise its discretion unlawfiully, see, e.g.,
Action Alliance Of Senior Citizens Of Greater
Philadelphia v. Heckler. 789 F.2d 931. 941
( D C.Cir. 1986) , or will misapply the regulation, see,
e.g., Union of Concerned Scientists v. U.S. Nuclear
ReRulatorv Commission, 880 F.2d 552. 558-59
( D.C.Cir. 1989) . Cf. Sullivan v. Everharg. 494 U.S. 83.
94. 110 S.Ct. 960. 108 L.Ed.2d 72 (1990 ) (although
petitioners argued that Secretary of HHS might apply
statute in bad faith, “since that is an obvious violation
of the Act it is ... not the stuff of which a facial
challenge can be constructed.”). The plaintiffs here
rely on no such assumption. The problem with the
Tulloch Rule is that its faithful application would carry
the agency beyond its statutory mandate.
There remains only the question of remedy. The
agencies challenge the district court’s issuance of a
nationwide injunction ordering “that the so- called
Tulloch rule is declared invalid and set aside, and
henceforth is not to be applied or enforced by the Corps
of Engineers or the Environmental Protection Agency.”
951 F.SuDD. at 278 . The agencies make two
arguments: first, that the plaintiffs are not entitled to an
injunction because they presented no record evidence,
and the district court made no explicit findings, as to the
elements necessary for injunctive relief; and second,
that even ifthe plaintiffs were entitled to an injunction
the district court erred by granting nationwide relief to
plaintiffs and non-parties alike.
F31141 As for the first argument, we note at the outset
that district courts enjoy broad discretion in awarding
injunctive relief. See, e.g., Wa2ner v. Taylor. 836 F.2d
566. 575 (D.C.Cir 1987 . The district court was well

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Page 9
within its discretion in findrng that the complaint placed
the agencies on notice that appellees sought both
declaratory and injunctive relief. See First Amended
Complaint For Declaratory and Injunctive Relief (filed
Sept. 20, 1993), at 25-26. Although the court made no
express findings as to the elements necessary for a
permanent injunction (the most salient of which is the
inadequacy of legal remedies), we do not think it was
required to do so. Even now the agencies identi& no
legal remedy as adequate. Money*1409 **339
damages were never sought in this action, and even if
the government were somehow found to have waived its
sovereign immunity against damage actions, it is hard
to see the relevance of such remedies in the context of
a pre. enforcement challenge to agency regulations.
The plaintiffs did seek (and obtain) a declaration of the
Tulloch Rule’s invalidity, but this brand of relief is itself
more equitable than legal in nature. See In re United
States Brass Corv.. 110 F.3d 1261. 1267 (7th
Cu. 1997); Penthouse International. Ltd v Mee.se. 939
F.2d 1011. 1019-20 ( D.C.Cir. 1991) . Moreover, in their
summary judgment motion the agencies failed to argue
that a declaratory judgment would be adequate, or to
contest any of the elements necessary for an injunction.
And once the court reached the conclusion that the rule
was indeed illegal (i.e., not merely that the plaintiffs
had a reasonable probability of success on the merits, as
would be necessary for a preliminary injunction), there
was no separate need to show irreparable injury, as that
is merely one possible “basis for showing the
inadequacy of the legal remedy.” 1 1A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure 2944 , at 94 (2d ed. 1995). In
sum we do not think the district court was required to
make explicit findings as to these elements before
issuing its injunction.
J J The agencies’ argument about the breadth of the
injunction fares no better. We have made clear that
“ [ w]hen a reviewing court determines that agency
regulations are unlawful, the ordinary result is that the
rules are vacated—not that their application to the
individual petitioners is proscribed.” Harmon v.
Thornbur2h. 878 F.2d 484. 495 n. 21 (D.C.Cir.1989) .
Justice Blackinun made a similar observation in Lujan
v National Wildlife Federation. 497 U.S. 871. 110
S.Ct. 3177. 111 L.Ed.2d 695 (1990) , writing in dissent
but apparently expressing the view of all nine Justices
on this question:
The Administrative Procedure Act permits suit to be
brought by any person “adversely affected or
aggrieved by agencyaction.” In some cases the
“agency action” will consist of a rule of broad
applicability; and if the plaintiff prevails, the result
is that the rule is invalidated, not simply that the court
forbids its application to a particular individual.
Under these circumstances a single plaintiff: so long
as he is injured by the rule, may obtain
“programmatic” relief that affects the rights of parties
not before the court. On the other hand, if a generally
lawful policy is applied in an illegal manner on a
particular occasion, one who is injured is not thereby
entitled to challenge other applications of the rule.
Id at 913. 110 SQ. 3177 (Blackmun, J., dissenting)
(citation omitted). See also id at 890 n. 2. 110 S.Ct .
J.21 (majority opinion) (noting that under APA,
successful challenge by aggrieved individual can affect
entire agency program). The agencies cite Baeder v
Heckler. 768 F.2d 547 (3d Cir.1985) , for the
proposition that a court in some circumstances may not
order a nationwide injunction even after holding a
regulation invalid. Baeder . however, did not involve a
facial challenge to the validity of a regulation; the Third
Circuit held simply that a sweeping injunction would
not be a proper remedy “in the context of [ an individual
plaintiffs] claim for disability benefits.” Id. at 553 .
Moreover, if persons adversely affected by an agency
rule can seek review in the district court for the District
of Columbia, as they often may, see 28 U.S.C.
1391(e) , our refusal to sustain a broad injunction is
likely merely to generate a flood of duplicative
litigation. Even though our jurisdiction is not
exclusive, an injunction issued here only as to the
plaintiff organizations and their members would cause
all others affected by the Tulloch Rule (or at least all
those with enough at stake and with astute enough
lawyers) to file separate actions for declaratory relief in
this circuit. Issuance of a broad mjunction obviates
such repetitious filings. It does so, to be sure, at the
cost of somewhat diminishing the scope of the
“non-acquiescence” doctrine, under which the
government may normally relitigate issues in multiple
circuits. See United States v. Mendoza. 464 U.S. 154.
104 S.Ct. 568. 78 L.Ed.2d 379 (1984) . By contrast,
agency defeats in other circuits cannot produce as
severe an effect, because, although other courts can also
issue nationwide injunctions, they need not fear a flood
of relitigation since venue * 1410 **340 restrictions
would exclude many would-be plaintiffs from access to
the invalidating court. The resulting gap in the
effective scope of the non-acquiescence doctrine
appears to be no more than an inevitable consequence
of the venue rules in combination with the APA’s
command that rules “found to be ... in excess of
statutory jurisdiction” shall be not only “h [ e]ld
unlawful” but “set aside.” 5 U.S.C. 6 706(2 )(C ) .
* S *
In a press release accompanying the adoption of the
Tulloch Rule, the White House announced: “Congress
should amend the Clean Water Act to make it consistent
with the agencies’ rulemaking.” White House Office
on Environmental Policy, Protecting America’s

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Page 10
Wetlands: A Fair, Flexible, and Effective Approach 23
(Aug. 24, 1993). While remarkable in its candor, the
announcement contained a kernel of truth. If the
agencies and NWF believe that the Clean Water Act
inadequately protects wetlands and other natural
resources by insisting upon the presence of an
“addition” to trigger permit requirements, the
appropnate body to turn to is Congress. Without such
an amendment, the Act simply will not accommodate
the Tulloch Rule. Thejudgrnent of the district court is
necessarily results in an addition of pollutants to
navigable waters. But rock and sand only become
pollutants, according to the statute, once they are
“discharged into water.” 33 U.S.C. 1362(6) (1994) .
The Corps’s approach thus just leads right back to the
defmition of discharge.
145 F.3d 1399,46 ERC 1769, 1999 A.M.C. 908, 330
U.S.App.D.C. 329, 141 Oil & Gas Rep. 198, 28 Envtl.
L. Rep. 2 1,318
Affirmed
SILBERMAN , Circuit Judge, concurring:
Ijoin the opimon of the court and write separately only
to make explicit what I think implicit in our opinion.
We hold that the Corps’s interpretation of the phrase
“addition of any pollutant to navigable waters” to cover
incidental fallback is “unreasonable,” which is the
formulation we use when we have first determined
under Chevron that neither the statutory language nor
legislative history reveals a precise intent with respect
to the issue presented--in other words, we are at the
second step of the now-familiar Chevron Step I and
Step II analysis. See, e g.. Whitecliff Inc v Shalala.
20 F.3d 488 (D.C.Cir. 1994); Fedway Associates. Inc.
v United Stales Treasuri’. 976 F.2d 1416
( D.C.Cir. 1992); Abbott Labs. v. Youn2. 920 F.2d 984
( D.C.Cir. 1990); Associated Gas D,stribs v FERC.
899 F.2d 1250 (D.CCir.1990) . As our opinion’s
discussion of prior cases indicates, the word addition
carries both a temporal and geographic ambiguity. If
the material that would otherwise fall back were moved
some distance away and then dropped, it very well
might constitute an “addition.” Or if it were held for
some time and then dropped back in the same spot, it
might also constitute an “addition.” But the structure
of the relevant statutes indicates that it is unreasonable
to call incidental fallback an addition. To do so
perforce converts all dredging--which is regulated
under the Rivers and Harbors Act— into discharge of
dredged matenal which is regulated under the Clean
Water Act.
Moreover, that Congress had in mind either a temporal
or geographic separation between excavation and
disposal is suggested by its requirement that dredged
material be discharged at “specified disposal sites,”
U.S.C. 6 1344(1 994 , a term which simply does not fit
incidental fallback.
The Corps attempts to avoid these difficulties by
asserting that rock and sand are magically transformed
into pollutants once dredged, so all dredging
END OF DOCUMENT

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Wedneday,
January 17, 2001
PartX

Department of
.
Defense
Department of the Army, Corps of
Engineers
—
33 CFR Part 323
Environmental
Protection Agency
40 FR Part 232
Further Revisions to the Clean Water Act
.Regulatory D nitinn of DiscIai ge of
Dredged Materlali Final Rule

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4550 Federal Register I Vol. 66,No. li/Wednesday, January 17, 2001/Rules and Regulations
DEPARTMENT OF DEFENSE
Departn nt of the Army, Corps o1
Engineers
33 CFR Part 323
ENVLRONMENTAL PROTECTION
AGENCY
40 CFR Part 232
WRL-6933-21
Further Revisions to the Clean Water
Act Regulatory Definition of
“Discharge of Dredged Material”
AGENCIES: Army Corps of Engineers,
Department of the Army, DOD; and
Environmental Protection Agenfy.
ACTiON: Final rule.
SUMMARY: The U.S. Army Corps of
Engineers (Corps) and the
Environmental Protection Agency (EPA)
are promulgating a final rule to amend
our Clean Water Act (CWA) section 404
regulations defining the term “discharge
of dredged material.” Today’s final
action is being taken to follow -up on our
esther proposed rulemaking of August
16, zooo,m which we proposed to
amend the regulations to establish a
rebuttable pres mptlon that merthsni,ed
landclearing, ditching, rh nn lizatlon,
in-stream mining, or other mechanized
excavation activity in waters of the U.S.
result in more than incidental fullback,
and thus involve a regulable discharge
of dredged material.
As a result of the comments we
received, today’s final rule reflects
several modifications from the proposal.
In response to concerns raised by some
commenters that the proposal would
have shifted the burden of proof to the
regulated community as to whet
constitutes a regulable discharge, we
have revised the language to make clear.
that this is not the case. Additionally,
we received numerous comments
requesting tha.t we provide a definition
of “incidental fallback” in the
regulatory language. In response, today’s
final rule does contain such a definition,
which is consistent with past preamble
discussions of that issue and is drawn
from language contained in the relevant
court decisions describing that term
Today’s final rule will both enhance
protection of the Nation’s aquatic
resources, including wetlands, and
provide increased certainty and
predictability for the regulated
community. At the same time, it
continues to allow for case-by.case
evaluations as to whether a regulable
discharge of dredged material results
from a particular activity, thus retaining
necessary program flexibility to address
the various fact-specific situations that
are presented.
CUVE DATE February 16,2001.
FOR FURThER INFORMA’flON C0NTACT For
information on today’s rule, contact
either Mr. Mike Smith, U.S. Army Corps
of Engineers, ATTN CECW-OR, 441 “C”
Street, NW, Wasbington. DC 20314-
1000. phone: (2021761—4598, or Mr.
John Lishinan, U.S. Environmental
Protection Agency. Office of Wetlands,
Oceans and. Watersheds (4502F), 1200
Pennsylvania Avenue NW.,
Washington, DC 20460, phone: (202)
260—9180.
SUPPLaçNTARY INFORMATION:
I. Potentially Regulated Entities
Persons or entities that discharge
material dredged or excavated from
waters of the U.S. could be regulated by
t9day’s rule. The CWA generally
prohibits the discharge of pollutants
into waters of the U.S. without a permit
issued bj EPA or a State approved by
EPA under section 402 of the Act, or, in
the case of dredged or fill material, by
the Corps or an approved State under
section 404 of the Act. Today’s rule
addresses the CWA section 404
program’s definition of ‘:.discharge of
dredged material,” which is important
for determining whether a particular
discharge is subject to regulation under
CWA siction 404. Today’s rule sets
forth the agencies’ expecations as to the
typesof activities that are li&ely to
result in a discharge of dredged material
subject to CWA section 404. Examples
of entities potentially regulated include-
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities that axe
likely to be regulated by this action.
This table lists the types of entities that
we are now aware of that could
potanti slly be regulated by this action.
Other types of entities not listed in the
table could also be regulated. To
determine whether your organi’ tion or
its activities are regulated by this action,
you sh 9 uld carefully exam’n EPA’s
applicability criteria in section 230.2 of
Title 40 of the Code of Federal
Regulations, the Corps regulations at
part323 of Title 33 of the Code of
Federal Regulations, and the discussion
in section II of today’s preamble. If you
have questions regarding the
applicability of this action to a
particular entity, consult one of the
persons listed in the preceding FOR
RIRTI N RMA’TlOtl CONTACT section.
U. Background
A.Plain Language
In compliance with President
Clinton’s June 1, 1998, Executive
Memorandum on Plain Language in
government writing, this preamble is
written using plain language. Thus, the
use of “we” in this action refers to EPA
and the US. Army Corps of giii ers
(Corps), and the use of “you” refers to
the reader.
B. Ovemew of Previous Rulemaking
Activities and Related Litigation
Section 404 of the CWA authorizes
the Corps (or a State with an approved
section 404 permitting program) to issue
permits for the discharge of dredged or
fill material into waters of the U.S. Two
States (New Jersey and Michigan) have
assumed the CWA section 404
permitting program. On August 25, 1993
(58 FR 45008), we issued a regulation
(the “Tulioch Rule”) that defined the
Cat
9O1Y
ExaiTiples nt potenhraily
regulated entities
State/Tribal govemmenn or mslrumennlities
State/Tribal agencies dr instnuuientalities that distharge dredged mate-
nal too waters of The U.S
Local governments or unslruinentalmes -
Local governments or .nstrumentahtjes that stharge dredged material
into waters of tile U.S
Federal government agendes or utatrumenialities ..
Federal vemmmt agencies or .nstrurnenteltjes Thai discharge
dredged material Into waters of the U.S
Industrial. commercial, or agricultural entities .. - ....
Land developers and landowners .
Industrial. commercial, or agricultural entities that discharge dredged
material into waters of the U.S
Land developers and landowners that discharge dredged material unto
waters of the U.S

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Federal Re ister/ VoL 66, No. Ill Wednesday, January 17, 2001 / Rules and Regulations
4551
term “discharge of dredged material” as
including”any addition, including any
redeposit, of dredged material.
including excavated material, into
waters of the US. which is incidental to
any activity, including mechanized
landcleaiing, ditching, rh .ima lization.
or other excavation that destroys or
degrades w s of the U.S.” The
American Mining Congress and sei,eral
other trade associations challenged the
revised definition of the term “discharge
of dredged material,” and on January 23.
1997, the U.S. District Court for the
District of Columbia ruled that the
regulation exceeded our authority under
the CWA because iL impermissibly
regulated “incidental faliback” of
dredged matenal, and enjoined us from
applying or enforcing the regulation.
That ruling was affirmed on June 29.
2998, by the U.S. Court of Appeals for
the District of Columbia Circuit.
Americion Mnrng Congress v United
States Army Corps of Engineers, 951
F.Supp. 267 (D.D.C. 1997) (“AMC’);
aWd sub nora. National Mining
Association v. United States Army
Corps of Engineers, 145 F.3d 1339
ID.C.Cir. 1998) f”MkLA”).
On May 10, 1999, we issued a final
rule modifying our definition of
“discharge of dredged material” in order
to respond to the Court of Appeals’
holding in NMA, and to ensure
compliance with the District Court’s
injunction (64 FR 25120). That rule
made those changes necessary to
conform the regulations to the courts’
decisions, primarily by modifying the
definition of “discharge of dredged
material” to expressly exclude
regulation of “incidental fullback.”
The NMA court did not find that all
redeposits are unregulable, and
recognized that redeposits at various
distances bum the point of removal are
properly the subjed of regulation under
the CWA. As explained in the preamble
to the May10, 1999, rulemaking, our
determination of whether a particular
redeposit of dredged material in waters
of the US. requires a section 404 permit
would be done on a case-by-case basis.
consistent with our CWA authorities
and gpvezning case law. The preamble
to that ptl n frii g also described and.
nY V relevant case law (see 64
FR 25121), for example, noting that the
NMA decision indicates incidental
fullback “. - - retains dredged material
virtually to the spot from which It
came” (145 F.3d at 1403) and also
describes incidental fullback as
occurring “when redeposit takes place
in substantially the same spot as the
initial removal.” 145 F.Sd at 1401. The
NMA court also noted that “incidental
fullback” occurs when a bucket used to
excavate material from the bottom of a
river, stream, or wetland is raised and
soils or sediments fall from the bucket
back into the water the court further
noted that “failback and other
redeposits” occur during mechanized
landcleazing, when bulldozers and
loaders scrape or displace wetland soil
as well as during ditching and
channelization when draglines or
b khôes are dragged through soils and
sediments. 145 F.3d at 1403, The
preamble also noted that the district
court inAMCdescnbed incidental
fullback as “the incidental soil
movement from excavation, such as the
soil that is disturbed when dirt is
shoyeled. or the back-spill that comes
off a bucket and falls back into the same
place from which it was removed.” 951
FSupp. at 270.
The NMA Court noted that the CWA
“sets out no bright hue between
incidental fullback on the one hand and
regulable redeposits on the other” and
that “a reasoned attempt to draw such
a line would merit considerable
deference.” (145 F.3d at 1405). The
preamble to our May 10, 1999,
rulemaking stated that we would be
undertaking additional notice and
comment rulemaking in furtherance of
the CWA’s objective to “restore and
Tn2int2in the chemical, physical, and
biological integrity of the Nation’s
waters.”
Subsequent to our May 10, 1999,
rulemaking the National Association of
Homebuilders (NAHE) and others filed
a motion with the district court that
issued the AMC injunction to compel
compliance with that injunction. The
NAHB motion, among other things.
asserted that the May 10. 1999. rule
violated the court’s injunction by
asserting unqualified authority to
regulate me ’h ni,ed landclearing. A
decision on that motion was still
pending at the rime we issued our
August 16. 2000 proposal (65 FR 50108)
to establish a rebuttable presumption
that me 4 inniv d landcleazlng, ditching,
r’haTt,IPlisatIOi l , ln.etream viiiiing , or
other merbem.pd excavation activftv in
waters of the U.S. will result in
regulabie discharges of dredged.
- materiaL
As explained in the preamble, the
proposed rule set fozth
• - our aipoctation that, absent a
n, tratjro to the coatsesy, the activines
addressed in the proposed rule typically will
result in more than in dental llback and
thus result n iegiilable redeposits of dredged
material, It would not, however, establish a
new al process or new record keeping
requizemects, end Section 404 permItting
and applicalian iequuements would
continue to apply only to regulable
discharges and not to inridental fallbacL
65 FR 50113.
As with today’s final rule. th,g.,
proposal addressed only matters related
to the “discharge of dredged niatenai’
under section 404 of the CWA. We note
that other regulatoiyauthorities may be
applicable to activities, in waters of the
U.S,, including stormwater purmitting
requirements under CWkiectiou 402,
and, in the case of”navigable waters of
the U.S.” (so’called’navigable infect
waters), section 10 of the Rivers and
Harbors Act of 1899. Readers should
refer to the preamble of the proposal for
further information on those authorities
(65 FR 501141.
The propdsed rule bad a 60 dry
comment period, which ended on
October 16, 2000. While that public
comment period was still open. on
September 13, 2000, the district tourt
denied NAHB’s motion to compel
compliance with the AMC injunction,
finding that our earlier May10, 1999,
rule was consistent with iti decision
and injunction, and the decision of the
D.C. Circuit in NMA. American Mining
Congress v. U.S. Army Corps of
Engineers. Civil Action No. 93—1 754
SSH (D.D.C. September 13.2000)
(hereafter referred to as “NAEB Motion
Decilson”).
l that decision the court found that,
“Inasmuch as this Court in AMC, an si
the Court of Appeals in MfA,
invalidated the Tulioch Rule because it
regulated incidental fullback, the Court”
order enjoining the agencies iron.
applying or enforcing the Tulloch Rule
must be understood to bar the agencres
from regulating incidental fullback.”
N/JIB Motion Decision, slip op. at 8-
9. The court then went on to determine
that by making dear that the agencies
may not exercise section 404
jurisdiction over redeposits of dredged
materiel to the extent that the redeposits
involve only incidental fullback, the
May 10, 1999, rulemaking did not
violate the court’s injunction and is
consistent with the decisions In AMC
and NMi4. Id. at 10—11.
C. Discussion of Finn! Rule
We received approximately 9,650
,,comments on the August 16.2000,
proposdl (because the numbers given ax
rounded oL we refer to them as
“approximate.”) Approximately 9,500
were various types of individual or form
letters front the general public
expressing overall support for the rule
or requesting it be strengthened. We
received approidniately 150 comments
from various types of orgartir tions,
state or local agencies, or commercial
entities, 75 of which provided detailed

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4552 Federal Register/Vol. 66, No. li/Wednesday, January 17, 2001/Rules and Regulations
comments, with approximately 50 of
these expressing opposition to the rule.
Organizations opposing the rule were
primarily construction and development
interests, mining and commerce
interests, as well as local agencies or
water districts with agricultural, flood
control, or utility interests. These
commentere often expressed the view
that the proposal wa inconsistent with
the AMC and NMA opinions and the
CWA. These comments also often
expressed concern that the rebuttable
presuinpjion would be difficult or
impossible to rebut and sh uld be
removed from the rule, and also
frequently stated that a definition of
incidental failback was necessary, with
many expressing prefere;ce for a
“brightline” definition.
Organizations supporting the proposal
or its strengthening included state and
local natural resource and
environmental protection agencies and
environmental organizations. In
addition, one detailed letter from a
group of wetland scientists associated
with a variety of institutions was
received, and expressed support for the
proposed rule and its strengthening.
Cominenters favoring the rule or its
strengthening generally believed that
%he proposed rule’s presumption that
cierh rni,ed landclearing, ditching,
channelization, in-stream mining, or
other meihani.ed excavation activity in
waters of the U.S. result in more than
incidenta’ fa]lback, and thus involve a
regulable discharge of dredged material,
was appropriate. Many of these
commenters, especially environmental
organizations, requested that the rule be
strengthened in a number of ways.
particularly by identifying certain
activities as always requiring a permit.
and malong clear that if chemical
constituents are released,into the water
column or if material is moved in a way
that permits its more ready erosion and
movement downstream, a regulable
discharge occurs. In addition, many of
the commenters favoring the proposed
rule or requesting that It be strengthened
also expressed the view that it should
define incidental failback.
We have tareftifly considered all the
comments received on the proposal In
developing today’s final rule. A detailed
discussion of those comments and our
responses is set out in section III of
today’s preamble.
Like the proposal, today s rule
modifies our definition of “discharge of
dredged material” in order to clarify
what types of activities we believe are
likely to result in regulable dicrh ges.
As desthbed in the preamble to the
proposed rule (65 FR 5011 1—50113),
based on the nature of the equipment,
we believe that the use of mechanized
earth moying equipment to conduct
landclearing, ditching, channelization,
in-stream mining, or other mechanized
excavation activity in waters of the U.S.
is likely to result in regulable discharges
of dredged material.
However, in response to comments
we received expressing concern that the
proposal would result in a shift in the
burden of ,of and impose undue
burdens on project prbponentsto
“prove a negative,’ we have made a
number of changes to clarify that this is
not our intent and will not be a result
of this rule. Because these concerns
primarily appeared to arise out of the
proposed rule’s use of a rebuttable
presumption formulation, we have
redrafted the rule language to eliminate
use of a rebuttable presumption.
As we had explained in the proposed
rule preamble, the proposal was
intended to express our expectation that
the activities in question typically result
iii regujable discharges, not to create a
formal new process or record keeping
requirements (65 FR 50113). The rule
now provides that the agencies regard
the use of mechanized earth-moving
equipment to conduct landclearzng,
ditching, channeliration, in-stream
mining or other earth-moving activity in
waters of the US. as resulting in a
discharge of dredged material unless
project-specific evidence shows that the
activity results in only incidental
failback
By no longer employing a rebuttable
presumption, we believe it is more
evident that we are not creating a new
process or altering misting burdens
under the CWA to show a regulable
discharge of dredged material has
occurred. To make this point
unmistakably clear, we also have added
anew sentence to the rule language that
expressly provides the rule does not and
is not intended to shift any burden in
any administrative or judicial
proceeding under the CWA. In addition.
the rule language has been clarified to
make it more evident that we will not
look to project proponents alone to
provide information that only incidental
failback results. Thus, the rule language
now refers to “project-specific evidence
show(ing) that the activity results in
only incidental fallback.” While this
might consist in large part of
information from project proponents,
we also will look to all available
information, such as that in agency
project files or information gained from
site visits, when determiiaing if a
discharge of dredged material results.
We also received a number of
comments questioning how the
presumption cont +nod in the proposed
rule might apply to particular
equipment, or asserting that the
presumption in the proposal w too
broad. We thus are clarifying in the l
rule language itself that we are
addressing me.4isni ed “earth-moving”
equipment (e.g.. bulldozers, graders.
backhoes, bucket dredges, and the like)
Earth-moving equipment is designed to
excavate or move about large volurlies of
earth, and we believe it is reasonable
and appropriate for the agencies to view
the use of such equipment in waters of
the U.S. as resulting in a dischaige,of
‘dredged material unless there is case
specific information to the contrary. The
administrative record of today’s rule
contains additional information on the
natue of this equipment and its
operations
We received a large number of
conrmeuts.,both from those opposed to
the proposed rule, as well as those
supporting the proposal (or its
strengthening). requesting us to provide
a definition of”jncidental failback.”
The proposed rule had not done so,
instead providing preamble discussion
of the relevant case law addressing that
term, as well as referring readers to the
preamble to our earlier May 10, 1999,
rule (65 FR 50109—50110; 64 FR 25121)
Subsequent to the proposal, as many of
the coinmenters opposed to the propoikl
noted, the court, in its decision on the
NABB motion to compel compliance
with the AMC court’s injunction,
cautioned against parsing the AMC and
NMA language to render an overly
narrow definition of incidental fallback.
NAHB Motion Decision, sup opinion
12—14
In light of numerous comments
requesting that a definition of incidental
failback be included in the regulations,
and consistent with our preamble
discussions of relevant ease law and the
more recent discussion in the court’s
NAHB Motion Decision, we have
provided a descriptive definition in the
final rule. That I nguage, which is based
on the AMC and NMA. cases and the
NAIIB Motion Decision, provides that:
Incidental fa]Jback is the redeposit of small
volumes of dredged material that is
incidental to excavation activity in waters of
the United States when such material falls
back to substantially the same place as the
initial removal. Ezamples of incidental
fallback include soil that is disterbed when
dirt is shoveled end the back-spill that comes
off a bucket when such small volume of soil
or dirt falls into substantially thesame place
from which it was initially removed
This language is fully consistent with
the spirit and intent of those decisions,
As noted in the AMC decision,
incidental fullback involves “incidental
soil movement from excavation” (951

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Federal Register/Vol. 66, No. Il/Wednesday, January 17. 2001/Rules and Regulations
4553
F.Supp. 270); thus the definitioa in
today’s rule refers to the redeposit of
small volumes of dredged material
incidental to excavation activities. (See
also NM I. 145 F.3d at 1404 (the
statutory term “addition” does not cover
the situation where material is removed
“and a small portion of it happens to
fall back”)). The rule language refers to
- “incidental fallback” as returrong
dredged material to “substantially the
same place” from which it came, a
formulation consistent with the AMC
and NMA decisions. AMC, 951 FSupp.
at 270; Z Th1A. 145 F.3d. at 1403; see also.
NAHB Motion Derision at 13. The
examples of Incidental fallback given in
the rule’s definition are drawn from the
AMC decision. See. AMC, 951 F.Supp.
at 270. We. therefore. believe the
definition reflects an objective and good
faith reading of the AMC and NMA
decisions. See. NAHB Motion Decision.
slip op. at 14.
Webelieve today’s rule both ensures
environmental protection consistent
with CWA authorities and increases
regulatory certainty in a manner fully
consistent with the AMC and NMA
decisions and the distrIct cowl
injunction. This has been accomplished
through regulatory language that serves
to put agency staff and the regulated
community on notice that absent
information to the contrary, it is our
expectation that the use of mechanized
earth moving equipmaat to conduct
landclearing, ditching, cbannelization,
in-stream miain,g. or other merli ni, d
excavation activity in waters of the U.S.
is likely to result in discharges of
dredged material. In addition, in
response to comments, and in order to
provide a descriptive standard of what
constitutes non-regulable incidental
fullback, we have provided in the rule
a descriptive d4nition of that term
which we believe to be fully consistent
with an objective and good faith reading
of the AMC NMA, and NAIlS Motion
decisions
At the same time, today’s rule is not
unnecessarily prescriptive and still
allows for the case-by-case
consideration of whether a discharge
results. In ‘ lting that determInation,
the agencies will consider any available
jalonnation on ojectp1an.or design. as
well as other information, such as site
visits or field observations, during and
after project execution. Information
which we will consider includes that
from project proponents, as well as
other available Information.
In dewirmining If a regulable
discharge of dredged material ormars,
we wifi carefully evaluate whether there
has been movement of dredged material
away from the place of initial removal.
In doing so, we will look to see If earth-
moving equipment pushes or relocates
dredged material beyond the place of
excavation, as well as whether material
is suspended or disturbed such that it Is,
moved by currents and resettles beyond
the place of initial removal in such
volume as to constitute other than
incidental failback, and thus be a
regulable discharge. See e.g., United
States v. M.C.C of Florida, 722 F.zd
1,501 (11th cit. 1985).vacated on other
grounds, 481 U.S. 1034(1987),
readopted in relevant part on remand.
848 F.2d 1133(11th Cir. 1988)
(resettling of material resulting from
propel.ler rotation onto adjacent seagrass
beds is jurisdictional). In appropriate
situations, we also will include
consideration of whether the pperation
results in the release of pollutants to the
environment that were fonnerly
physically or chemically bound up and
sequestered from the environment pnor
to the dredging or excavation of the
sediments. See e.g., United States v.
Deaton, 209 F. ‘3d 331 (4th Cit. 2000) at
335—336 (discussing release of
pollutants in determining sidecasting to
be jurisdictional). in considering
whether matenal is relocated, we will
look at both horizontal and vertical
relocation. For example. sidecasting,
which involves horizontal relocation to
the side of the ditch, is a regulable
discharge. See e.g., Deaton, supra;
NAIlS Motion Decision at n. 3.
Similarly, where activities involve the
verticai relocation of the material, such
as occurs in backfilling of benches, a
regulable discharge results. See e.g.,
(United States v. Mango. 997 F. Supp.
264, 285 (N.D.N.Y. 1998), affirmed in
past, reversed in part on other grounds,
199 P.3d 85 (2d Cir. 1999); see. Iroquois
Gas Transmission System v. FERC, 145
F.3d 398 at 402 (2nd Cir. 1998)
(backfllling of trenches is jurisdictional).
We also will take Into account the
amount or volume of materi4 that is
redeposited. Incidental failback at issue
in AMC and NM 1l was the small-volume
fahlback from excavation. SiiniL .rly.
today’s rule defines Incidental fullback
as the “small volumes of dredged
material” fulling back to substantially
the same place as the initial removal.
Therefore, we will crmsi .Ier the volume
deposrted in deciding whether the
activity results in only incidental
ftllbacL
Thus, the determination of whether
an activity results in a regulable
discharge of dredged material or
produces only incidental fullback
involves consideration of the location
and the amount of the redeposit.
Because of the fact-specific nature of the
es cvm.nt of these factors, and their
interrelated nature, we do not believe it
to be feasible or appropriate to establish
hard and fast cut-off points for each of
tj iese factors. Rather, the totality of the
factors will be considered in each case.
Finally, we note that the proposed
rule would have removed eidsting
paragraph 3(iii) from the Corps’
regulations at 33 R 323.2(d) and the
counterpart EPA regulation at 40 CFR
232.2. Those paragraphs con ined
identical “grandfather” provisiois for
certain activities to be cothpleted by
August 24,1993, and were propojed for
deletion as being outdated, 65 FR
501211. Today’s.flnal rule, consistent
with the original propçsal, removes
those paragraphs from the regulations
m. Discussion of Coiwnents
A. LegolilyofProposo) -
1. Proposal as Inconsistent With N v1A
and Ruling on NAIlS Motion to Compel
A number of commenters contended
that the proposed rule conflicts with the
rulings of the courts in AMC, MYLA, and
the NAHB Motion Decision. Among
other things, they characterized the rule
as an “end-run” around the nationwide
injunction affirmed in NMA; “an
attempt to re-promulgate Ithe 1993
Tulloch Rule);” and an effort to regulate
the activities that the NMA court said
were not regulable. In particular, these
commenters characterized the NMA
decision as holding that regulating any
redeposit of dredged material during
removal activities outruns the section
404 provisions of the CWA end that tar
agencies may only regulate activities
that cause a net addition to waters of the
U.S. They then argued that the rule is
at odds with that holding. In addition,
they asserted that the presumption
would result in regulating effects as
opposed to discharges and would make
all excavation and landcleanng
activities regulated. Several commenters
also noted that using a presumption
does not address ’the NMA court’s
instruction that the agencies attempt to
draw a bright line between what is a
regulable redeposit versus non regulated
incidental fallbac
As discussed in mere detail in the
sections below, we believe that the
changes that we have made in today’s
rule address such comomsiyioreover
we do not agree with the 1ega’ anaJysis
in many of the comments. In a lumber
of respects, we believe the commenters
have simply read the NM 4 decision too
broadly. The court in NMA stated:
‘LWJe do not held that the Corps may
not legally regulate some forms of
redeposit under Its section 404
permitting authority. We hold only that
by asserting jurisdiction over ‘any

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4554 Federal Register/Vol. 66, No. il/Wednesday, January 17, 2001/Rules and Regulations
redeposit,’ including incidental failback,
the Tulloch Rule outruns the Corps’
statutory authority.” 14SF. 3d at 1405.
Thus, the court explicitly recognized
that some redeposits are regulable and
indicated that the agencies’ attempt to
draw a line between incidental failback
and regulable redeposits would be
entitled to deference. The court also
acbiowledged that sidecasting, the
placement of removed soil in a wetland
some distance from the point of
removal, has always been regulated by
the agencies; and finally, it recognized
that removal of dirt and gravel from a
stteambed and its subsequent redeposit
in the waterway after segregation of
minerals constitutes an addition
The court’s acceptance of these
principles undercuts the conclusion
suggested by some that its statement
that “incidental faliback represents a net
withdrawal, not an addition” must be
read to mean that activities that involve
removal of material can never constitute
a discharge. Similarly, the court’s
statement that “Congress could not have
contemplated that the attempted
removal of 100 tons (of dredged spoil)
could constitute an addition simply
because only 99 tons were actually
taken away” must also be reconciled
with the court’s clear recognition that
some redeposits constitute an addition.
In addition, the Court’s NAHB Motion
Decision supports the agencies’ view
that a more narrow reading of the NMA
decision than some commenteis are
advocating is correct. The court stated:
Inasmuch as this Court in AMC. and the
Court of Appeals in ZVMA, invalidated the
Tulloch Rule because it regulated incidental
faliback. the Court’s order enjoining the
agencies from applying or enforcing the
Tulloch Rule must be understood to bar the
agencies from regulating incidental failback
(footnote omitted)’ • The May 10th Rule
is facially consistent with the Court’s
injunction because it .1n ,.,ate, S 404
purisdiction.over incidental failback, and
removes the language asserting jurisdi on
over “any” redeposit of thedged material.
The rule makes clear that the agencies may
not exercise §404 jurisdiCtion over
redeposits of dredged material to the extent
that the redeposits involve only incidental
faliback (citation omitted) (emphasis added).
Court’s Denial of Motion to Compel, at
g!.io.
Thus, the sweeping rl iInc that “any
redeposit” and all removal a±vtties are
beyond the scope of the CWA cannot
be substantiated based on NMA or other
eiasting law. Today’s rule provides a
definition of “incidental fallback” that
adheres to the judicial guidance
provided in the AMC and NMA cases
and the NAIm Motion Decision, while
7 usfriiig clear to the public the types of
activities that we believe are properly
regulated.
a. Excavation not covered. The
contention that excavation and other
removal activities con never be
regulated fells to recognize that
“discharges of pollutants” can occur
during removal activities even where
the ultimate goal is withdrawal of
material. That the CWA definition of
“pollutants” does not include
“incidents] failback from dredging
operations” is of no sigzdfrance,
contrary to the suggestion of one
commenter, because it does include
“dredged spoil.” Several comnienters
referenced dictionary definitions of
“excavate” and “discharge” to buttress
their view that a removal activity can
not involve a discharge. One
commenter, in particular, argued that
“discharge” denotes an intentional act,
and that redeposits from excavation
activity may not be regulated because
they do not involve an intentional act.
These definitions, however do not
indicate whether, in a given situation,
pollutants were added to waters of the
U.S. within the meaning of the CWA,
the only issue we are concerned with
here. First, as indicated in section I lL A.
4 of this preamble, there is no support
under the CWA for the position that a
discharge must be an intentional act. In
addition, as indicated in the preamble to
the proposed rule, as a general matter,
excavation and other earth-moving
activities that are undertaken using
mechanized earth-moving equipment
typically result in the addition of a
pollutant to navigable waters because
the nature of such equipment is to move
large volumes of material within and
around the excavation site.
The court in MdA also recognized
that redeposits associated with earth.
moving activities could be regulated.
(“But we do not hold that the Corps may
not legally regulate some forms of
redeposit under its section 404
permitting authority.” 145 F. 3d at
1405.). As described in the preamble to
the proposed rule, the machinery used
for excavation, me , 4 ui ud
landclearthg, and other removal
activities generally results in substantial
soil movement beyond the area from
which the material is being removed
(See also section III D of todays
preamble). This substantial soil
movement and distribution of material
makes the situations Involving
me ii4 ed earth-moving equipment
akin to the numerous cases in which the
courts have found that the redeposit of
material constituted the discharge of a
pollutant. See e.g.. Avoyalles
Sportsmen’s Leaguev. Marsh, 71SF. 2d
897,923 (5th Cir. 1983)(recognized that
the term “discharge” covers the
redepositing of materials taken from
wetlands); United Stares v. Mango, 997
F. Supp. 264,285 (N.D.N.Y. 1998),
affirmed in port, reversed in port on
other grounds, 199 F. 3d 85 (2d Cii.
1999)(found that backfilling of trenches
with excavated material was a
discharge); United States v, M.C.C. of
Fjorida, Inc., 772 F. 2d 1501 Uith cir.
1985)(holding that re epostpon of
seabed materials resulting from
propeller rotation onto adjacent sea
grass beds was an “addition” of dredged
spoil); Slinger Diainage Inc., CWA
Appeal No. 98-10 (EPA Environmental
Appeals Board Decision (EAB)(holding
that backfiuing by a Hoes trenching
machine is a regulable discharge of
dredged material, not incidental
failbackilappeal pending); United States
v, Deaton, 209 F. 3d 331 (4th Cir
2000)(holding that sidecasting is a
regulated discharge): see also United
Statesv. Huebner, 752 F. 2d 1235 (7th
Cu.), certderued, 474 U,S. 817 (1985)
(sidecasting materials along a ditch and
then using a bulldozer to spread
material over severs] acres constituted a
discharge of dredged material)
We do recognize, however, that some
excavation activities by using
specialized techniques or precautions
may be conducted in such a manner that
no discharge of dredged material in fact
occurs. Today’s rule specifically
provides for consideration of pro ject-
specific information as to whether only
incidental fullback results in
determining jurisdiction under section
404. For example, we achuowledge that
some suction dredging operations can
be conducted in such a manner that if
the excavated material is pumped to an
upland location or other container
outside waters of the U.S. and the
mechanized removal activity takes place
without re-suspending and relocating
sediment downstream, then such
operations generally would not be
regulated. Other examples of activities
that would generally not be regulated
include discing, harrowing, and
harvesting where soil is stirred, cut, or
turned over to prepare for planting of
crops. These practices involve only
minor redistribution of soil, rock, sand,
or other surface materials. The use of I C-
C blades and other forms of vegetation
cutting such as bush hogging or mowing
that cut vegetation above the soil line do
not Involve a discharge of dredged
materiaL
b. Tao naisow reading of “incidental
falIhack’ Several commenters
Incorrectly equate “Incidental faliback”
with all dredged spoil that is’
redeposited in regulated waters asa
result øf activities using me 4 ienived

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Federal Register/VoL 66. No. ia/Wednesday, January 17, 2001/Rules and Regulations
4555
equipment. As indicated, the NMA
court made it clear that regulable
redeposits could be associated with
such activities and, to the extent that
they were, the NMA decision did not
preclude regulation. Today’s rule
explicitly excludes incidental llback
from the definition of discharge of
dredged material. First. it does not alter
the May 10, 1999. amendment to the
definition of “discharge of dredged
material,” which explicitly excluded
incidental fallbaek from the definition.
In addition, today’s rule provides for the
consideration of project.speciflc
evidence which shows that only
incidental failback results fro m the
activity. Thus, we have taken the
necessary steps to ensure that we do not
regulate “incidental failback” when it is
the only material redeposited during
certain removal activities. The Court’s
NAHB Motion Decision found our May
10, 1999, amendment consistent with
the injunction in the NMA case, and
today’s rule does not change or alter the
underlying provisions of that rule.
Nevertheless, several coznmenters
have argued that the agencies are
interpreting “incidental failback” too
narrowly and have not heeded language
in the Court’s NAHB Motion Decision
that cautioned against applying too
narrow definition of incidental fallbar,k
that would be inconsistent with an
objective and good faith reading of the
AMC and NMA decisions. Today’s rule,
however, is entirely consistent with that
order and the decisions in AMC and
NMA. First. commenters are incorrect
that we have construed the meaning of
“incidental fullback” too narrowly
because, in formulating the definition in
today’s regulation, we were guided by
the descriptions of inc idental fullback in
the judicial opinions. The NMti
decision indicates that incidental
fallback ” returns dredged
material virtually to the spot from
which it came.” 145 F. 3d at 1403. Ii
also describes incidental faflback as
occurring “when redeposit takes place
in substantially the same spot as the
initial remo+aL” 145 F. 3d at 1401.
Stmfl rly, the District Court described
izicadchtalfallback as “the incidental
soil movementhoin excavabon, snub as
ilthatisdistuxbedwhendfrtls
shoveled, or the back.splll that comes
off a bucket and falls back Into the same
place from which It was removed.” 951
F. Supp. at 270. We believe that
adopting a definition that relies heavily
on the judicial formulations of
“incidental hllb ’1 ” will ensure
consistency with those opinions as well
as help project proponents understand
the agencies’ view of “incidental
fullback.” We disagree strongly with
coromenters who suggested that we are
tiyingto inappropriately parse the
language of the AMC and M4A
decisions, and belipve that our
definition of”incidental failback” is
based upon a good faith Interpretation
of those rulings. See section II C of
to4ay’s preambje fpr additional
discussion of this issue.
Nevertheless, as discussed in section
WE of today’s preamble, we did not
adopt a definition of incidental fullback
that would t zn on whether the material
was redeposited to “the same general
area” front bich it was removed. We
believe this formulation could
potentially be read to mean that
incidental faliback woul4 include any
dredged material redeposited in the
same overall site where excavation
occurred, as opposed to the place of
initial removal. We believe such a broad
formulation would not adequately
recognize court decisions that have
found a egulab1e discharge where
redeposits have occurred even though
only a short distance from the removal
point. See, e.g., Deaton, Mango. etc.
Moreover, contrary to one
càmmenters contentions. today’s rule is
not inconsistent with the approach
taken by the agencies in the 1997
Tulloch Guidance (“Corps of Engineers/
Envrmnnient& Protection Agency
Guidance Regarding Regulation of
Certain Activities in Light of American
Mining Congressv. Corps of Engineers,”
April 11, 1997) (“1997 Guidancn’i. The
commanter pointed to language in the
1997 Guidance stating that if there is
“movement of substantial amounts of
dredged material from one location to
another in waters of the United States
(i.e., the material does not merely fall
back at the point of u,iv. tion), then
the regulation of that activity is not
affected by the Court’s decision.”
Pointing to that language, the
commenter went on to assert the 1997
Guidance meant that unless “substantial
amounts” of dredged material were
moved, then no dier ’h .ge occurs, and
concluded from this that the proposed
rule was inconsistent with the 1997
Guidance. In response, we do not
believe the 1997 Guidance can be
properly read to supportahe
commenter’s contht cinne The language
quoted by the commeuter comas from a
portion of the guidance under the
section header “Types of Discharge Not
Addressed by Court Decision.” In
addition, it simply provides guidance to
field personnel that where an activity
results in movement of substantial
volumes of dredged material, regulation
of the activity is unaffected by the
court’s decision. The 1997 Guidance
thus does not mean we interpreted the
AMC or NMA decisions to allow
regulation only if relocation of
substantial amounts of dredged material.
takes place. In fact, the 1997 Guid ce
provides at page 3 that: “The Court’s
decision pnly has implications for a
particular subset of discharges of
dredged material, i.e., those activitie
where t)se only discharges to waters of
the U.S. are the relatively sz iai1 volume
discharges described by the Court as
“incidentalfallback “ (emphasis
added). Nothing in today’s rule is
inconsistent with the 1997 Guidance.
The preamble to the proposed rule
clearly recognized that there can be
situations where due to the nature of the
equipment used and,its method of
operation, a redeposit may consist of
material limited to “incidental
fullback.” In addition, that preamble
recognized (as do the regulations at 33
CFR 323.2(d)(2)(ii) and 40 R 232.2),
for example, that the use of equipment
to cut trees above the roots that does not
disturb the root system would not
involve a discharge. Moreover, as
discussed in section II C of today’s
preamble, we have modified today’s
final rule to make it even more clear that
project’specific information maybe
used to demonstrate that only
“incidental fullback” will result. Despite
the discussion in the proposed rule’s
preamble, some commenters contended
that we were overreaching. We believe
that the language changer reflected in
today’s rule as well as the discussion fit
today’s preamble clarify that redeposits
associated with the use of me .! h ni,pd
earth-moving equipment will only be
regulated if more than incidental
fullback is involved, while niahing clear
our view that activities involving
rne hsni !ed earth-moving equipment
typically result in more than incidental
fallbar.k. Where the redeposits are
limited to incidental fallback, they
woujd not be regulated.
C. Covers saute activities as 2993
Tulloch Rule. A number of commenters
argued that the proposed rule was an
improper attempt to circumvent the
NMA decisions and reinstate the
invalidated 1993 Tulloch Rule. They
contended qiat the agencies relied on no
new inforthalionin developihg this suit
and thatlnige segmenes of the proposed
rule appeared In, and were used to
justify, the 1993 Rule. Moreover, as
opposed to narrowing the definition of
“discharge of dredged material” as
instructed by the courts, several argued
that the proposed rule simply swept in
the same activities and created a vague
and Impossible standard for rebutting
the presumption. Several asserted that
the agencies made no attempt to create

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4556 Federal Registev/ Vol. 66, No. il/Wednesday, January 17, 2001/Rules and Regulations
a ‘brightilne” distinction between
incidental failback and regulable
redeposits as encouraged by the courts
arId instead, simply shifted the burden
- to the regulated community. The end
result, they argued. would be that the
agencies would regulate activities that
are not appropriately within the scope
of the CWA, because, among other
reasobs, people lack the resources.
wherewithal, or information to rebut the
presumption.
The changes that we have made in the
rule language further clarify the
dis*inctions between our approach
• today and the 1993 Tu]Ioch Rule. We
believe that today’s rule reflects
important differences with the 1993
Tulloch Rule that make our actitin
consistent with the NMA rulings. First,
as discussed previously in this
preamble. today’s amendments along
with those made on May 10, 1999,
explicitly and repeatedly exclude
incidental failback from the deflnitioo
of “discharge of dredged material”
Today’s rule also provides a descriptive
definition of incidental failback and
explicitly indicates that project.speciflc
evidence may be used to show that only
incidental fullback will result from the
activity. These provisions are a direct
response to the NMA rulings and to the
comments th t we received. In contrast,
the releyant sections of the 1993
Tulloch Rule Included any redeposit,
including redeposits consisting of only
incidental fullback.
Similarly, contrary to the suggestion
of one coinmenter, the rebuttable
presumption would not have recast in
different legal language the central
hypothesis of the Tulloch Rule that
every redeposit of dredged material was
a discharge subject to regulation under
section 404. The commenier referenced
language from the 1993 Preamble stating
that it is ‘virtually impossible to
conduct landcleanng,
ditching, 4 , ,mDli, tion or excavation
in waters of the United States without
causing lncjibmmi redeposition of
dredg d material (however small or
temporary) in the process.” 58 FR at
45017. Lu contrast, the position that we
are tahing today does not cast the
jurisdictional net so broadly. Both the
rebuttable presumption in the proposal
and today’s rule are more narrow in
scope because we are not regulating
incidental failback. As discussed in the
previous paragraph, the regulations
defining the discharge of dredged
material were am m ed on May 10,
1999, to make clear that incidental
fullback is not .nrmnpassed within that
definition and today’s rule does not
alter that exclusion.
Second, some coutmenteis claimed
that the rebuttable presumption that was
in the proposed rule s the same as the
de minimis exception that was added to
the regulations as part of the 1993
Tulloch Rule and continues to be a part
of the definition of discharge of dredged
material today. 33 CFR 323.2(d)13): 40
CFR 232.2. We believe that this
comment misunderstands the
relationship between today’s rule and
the de minimis exception contaihed in
the 1993 Tulloch Rule. We have not
reopened in this rulemaiting the de
minimis exception from the 1993 rule,
since that provision is irreleyant to
determining whether an activity results
in a discharge of dredged material. As
promulgated in the 1993 rule, the de
minimis exception provides that section
404 authorization is not required for the
incidental addition of dredged material
associated with an activity that would
not destroy or degrade a water of the
U.S. Under the 1993 rule, mechanized
landcleariug, ditching, h nDlization,
or other excavation activity that results
in a redeposit into waters of the U.S.
were presumed to destroy or degrade
waters of the US., unless the project
proponent demonstrated prior to
proceeding with the activity that it
would not cause such effects. 33 CFR
323.2(d)(3): 40 CFR 232.2. Thus, the de
mjnzrnis exception in the eiasting
regulations and its associated
presumption address the issue of
whether otherwise regulable discharges
are excluded from section 404
authorization because of minimal effects
on the environment, and does nor, as
some commenters suggested, serve as a
means of asserting authority over
activities outside our jurisdiction based
on the effects of activities.
By contrast, today’s rule addiesses the
issue of whether a regulable discharge of
dredged material is even involved.
Today’s rule does not eIi”i te the
requirement for a “discharge.” Instead it
reflects the agencies’ view that regulable
discharges generally are expected to
ocour when certain activities using
me ” 1 ’”4’ d eazth.moving equipment
are undertaken. The proposed rule
described thisviewlntermnsofa
presumption but allowed project
proponents to demonstrate that their
activities caused only incidental
failback, which Is beyond section 404
jurisdiction. Today’s rule does not use
the words “presumption” or “presume”
to avoid any misunderstanding that we
are attempting to shift CWA burdens to
the project proponent. If the activity
involves only incidental fullback, It
would not be regulated regardless of the
level of associated environmental
impact because the statutory
prerequisite of a discharge has not
occurred. Moreover, unlike the
treatment of mechanized activities when
attempting to qualify for the de minimis
exception, neither the proposed nor
final rules require that the project
proponent affirmatively demonstrate to
the agencies that no discharge will
occur prior to proceeding with his
activities. Thus, the de mzn:m,s
exception and today’s rule serve
different purposes and operate
differently within the context of the
regulation and for that reason the de
minimis exception was not reopened as
part of this rulemaking
In addition, one commenter charged
that by adoptine a rebuttable
presumption s&ilar to the one
proposed in the 1992 proposal but that
was dropped prior to final promulgation
in 1993, the agencies make clear their
intent to sweep into regulation specific
activities rather than determine actual
discharges. In response, we note that the
1992 proposal actually contained an
irrebutable presumption that was more
inclusive than what we promulgated in
the 1993 Tulloch Rule and than either
the proposed or flnaj rules we are
addressing today. In fact, contrary to the
sentiment expressed in the comment,
the allowance for project-specific
evidence that the a tivity results in only
incidental fullback reflects our e rt to
restrict regulation to only regulable
discharges.
We do not believe that it is of any
significance that there is overlap
between the activities addressed by
today’s rule and the 1993 Tulloch Rule
The NMA court did not find that all
activities potentially encompassed by
that rule were beyond the scope of the
CWA, but rather that incidental fallback
was excluded. NAHB Motion Decision.
Thus, it is no surprise that the two rules
address some of the same activities.
d. Improperly relies on on “e bcrs”
test. Several co enters argued that the
proposed rule improperly relies on the
broad goals of the CWA and an “effects
test” as the basis for establishing
jurisdiction. They contended that this
approach is inconsistent with the N1 .f A-
related decisions and with other cases
addressing the basis for jurisdiction
under the CWA. They stated further that
the CWA was not intended to provide
comprehensive protection for wetlands.
We believe that the commenters
misunderstood the purpose and effect of
the proposal, as well as have misread
the conclusions in the NAHB Motion
Deci io ebout an effects based test of
jurisdiction.
First, the agencies agree that the CWA
regulates “ Iiccharges” and today’s rule

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Federal ReglsterIVoL 66. No. li/Wednesday, january 17. 2001/Rules and Regulations
4557
in no way establishes an effects-based
test for asserting CWA jurisdiction. As
was in4icated In the proposal. the
presence ala “discharge” of dredged or
fill material into waters of the U.S. is a
prerequisite to jurisdiction under
section 404. The purpose of this rule is
to provide further clarification of what
constitutes a “discharge of dredged
material.” As indicated, we regard the
use of mechanized earth-moving
equipment to conduct landclearing,
ditching, channelization 1 in-stream
mining or other earth-moving activity iii
waters of the US. as resulting in a
discharge of dredged material unless
there is project-specific infhnnation to
the contrary. Thus, although significant
dveise environmental effects c n result
from acthiities undertaken using
mechanized earth-moving equipment,
the jurisdictional basis is the presence
of regulable discharges.
To the extent these comments are
addressing the de mnumis exception
contained in the 1993 rule, the
comments are outside the scope of this
rulemaking because we have not
itconsidered that provision here. We
note that the continued operation of this
e,dsting regulatory provision is
consistent with AMC and NMA. The
NAHB Motion Decision amrmatively
rejected the position that “the Court’s
injunction must be understood to bar
application and enforcement of the
effects-based test of jurisdiction
because the Court also rejected this
component of the TUUOCh Rule
(citation omitted j” The Court stated:
The Court rejected this test because the
agencies were using it to assert jurisdiction
over otherwise non-regulable activities: the
Court ixpressly did not determine whether
the effects-based teat of jurisdiction would be
valid if applied to activities that otherwise
come within the scope of the Act (citation
omitted) Thus, where the effects-based test is
not applied to otherwise non-zegulable
activities under the Ad (such as incidental
frulback), the Court’s injunction does not bar
its ipplicetion.
NABB Motion Decision, a. 8.
Likewise today’s rule is not in conflict
with the Slinger decision is asserted by
one of the commentect InSlinger
Drainage. Inc.. EPA’s Environmental
Appeals Board affirmed EPA s general
view that the pivotal consideration for
purposes of deciding whether an
individual activity is or Is not subject to
the section 404 permitting requirement
is whether a Mci4iaege of dredged
material takes place.” in ye: Slinger
Drainage. Inc., CWA Appeal No. 98-10
(September 29, i999)(slip opinion), at
19. Notably, the EPA Environmental
Appeals Board also stated in that
opinion that the requirement for a
discharge “is not to say that the ‘effects’
of a particular activity are of no concern.
In a broad sense effects are the driving
force behind the entire regulatory
scheme to protect wetlands.” Id.
Finally, one corementer suggested
that discussions in the proposed rule’s
preamble concerning the release of
in the water column
indi te that the agencies “base their
finding of juri diction on analysis of the
effects of the me han ,ød landclearing.
ditching. or other activity.” This is
incorrect. Rather than being regulated
based on the effect on water quality, as
discussed in section III D of today’s
preamble, the transport of dredged
material downstream or the release of
previously bound-up or sequestered
pollutants (which are in and part of the
dredged material) may constitute a
discharge, not by virtue of associated
environmental impacts, but by virtue of
being added to a new location in waters
of the U.S. In evaluating whether
suspension or downstream transport
results in a regulable discharge or only
incidental fallback, we would consider
the nature and amount of such
suspension and transport
e. Inconsistency with District Court
‘specified disposal site” rationale.
Several commenters contended that
today’s rule ignores the AMC court’s
analysis of “specified disposal sites.”
We do not see today’s rule as
inconsistent with this aspect of the
court’s decision. The court in thC held
that. even if the term “addition of a
pollutant” were broad enough to cover
incidental fallback, the language
“specified disposal sites” in section
404(a) would have led the court to the
same holding. Because today’s rule does
not regulate incidental failback, it is
entirely consistent with this aspect of
the court’s opinion. Moreover, the
court’s reasoning in AMC was that the
1993 rule effectively made all
. . . , ..ution sites into disposal sites,
rendering the statutory language “at
specified disposal sites” superfluous.
Today’s rule does not render the
statutory language superfluous because
we are only asserting jurisdiction over
redeposits that occur outside the place
of initial removal.
•2 Proposal esinconsistent With the
CWA
Several other claims were made that
today’s rule is not consistent with the
CWA. These claims Included several
pronOuncements that the CWA only
regulates discharges and that the
legislative history demonstrates that
Congress did not Intend the CWA to
regulate minor discharges associated
with dredging, merliAn4 d
landclearing, excavation, ditching,
channelization, and other de minimis
discharges. One commenter disagreed
with the proposition that sectInti
404(1112) supports the proposed ruin” -
because it reflects Coagres ional
recognition that these activities result in
discharges. This commenter cited an
excerpt from the NMA court decis ion —
that the court was “reluctant to draw
any inference Ifrom section 404(0) other
than that Congress emphatically did not
want the law to impede these bucolic
pursuits”—Io support his assertion.
Moreover, one coutmenter argued that
the lack of a specific reference to
excavation activities in the CWA Is
further evidence that small-volume,
incidental deposits accompany ng
landcleanng and excavation activities
were not intended to be covered under
section 404. Several commentezs also
contended that the CWA does not
require a person to make a prima facie
showing that activities are exempt from
regulationunder the Act and the
agencies can not administrativeli
impose this requirement.
As discussed in section I II A d, we
recognize that the statute and legislative
history require a discharge for the
requirements of the CWA to apply. The
definition of discharge of dredgçd
material contained In today’s rule is
therefore. pounded on the statutory
term “discharge of a pollutant”
contained in section 502(12) of the Act
and relhvant court decisions that have
construed the discharge requirement.
We think, however, teat some
commenters’ assertion that legislative
intent mandates a broad construction of
the term “incidental fallback” finds no
support either in section 502(12)
(defining “discharge ala pollutant” to.
Include ‘.?ony addition of any pollutant”
(emphasis added)) or section 404(0. We
do not agree that the 1972 and 1977
legislative histories generally indicate
that Congress did .not intend to regulate
minor discharges resulting from certain
activities, including vgtion.’To the
contrary, while Congress was focused
on preserving the Corps’ autonomy with
respect to navigational dredging. it is
clearly over-reading the history in
suggest that other types of removal
activities implicitly were conteniplatec
and rejected by the choice of words
- such as ‘discharge,” “pollutant,”
“dredge spoil,” or “disposal sites ,” as
one commenter suggested.
MOzwves, the trea ent of Incidental
dischaxgesinthe 1977 Acthelps
illustrate Congress’ view of these types
of discharges. The 404(f) exemption was
necessary because Congress recognized
that, absent an exemption, regulation of
discharges “incidental to” certain

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4558 Federal Register/Vol. 66, No. 11 / Wednesday, January 17, 2001/ Rules and Regulations
activities was encompassed within
section 404 under certain
circumstances. There is no support in
the Act or legislative history for
concluding that so-called “minor”
discharges associated with excavation
were intended by Congress to be
categorically excluded from the Act. In
fact, the very use of the word
“incidental” in section 404(f)(2)
suggests just the opposite. Incidental is
defined as: “1. being likely to ensue as
a chance or minor consequence; 2.
occurring merely by chance or without
intention or calculation” (Miriam-
Webster’s Collegiate Dictionary (10th
Ed.. 1998)): “1. occurring or likely to
occur as an unpredictable or minor
accompaniment; 2 ’bf a minor, casual, or
subordinate nature” (American Heritage
Dictionary of the English Language; 4th
Ed.); “happening or likely to happen in
an unplanned orsubórdinate
conjunction with something else”
(Random House Dictionary of the
English Language (2d Ed. 1987)). Thus,
the use of the word ‘incidental” in
section 404(f)(2) belies the notion that
the Act mandates a broad interpretation
of incidental failback.
Senator Muskie, the sponsor of the
1977 CWA amendment, addressed the
section 404(f) exemptIons as follows:
404U) provides that Federal permits will
net be required for those narrowly defined
activities that cause little or no adverse
effects either individually or cumulatively.
While it is understood that some of these
activities may result in incidental filling and
minor harm to aquatic resonross. the
exemptions do not apply to discharges that
convart extensive areas of water into dry land
or impede circulation or reduce the reach or
size of the water body. 3 A Legislative
History of the Clean Water Act of 1977.95th
Cong.. 20 Less.. Ser. No. 95—14 (1978), at 474.
Thus, the Legislative History does not
support the commenters’ pplnt.
In addition, we have clarified the rule
in response to commenters who argued
that the proposal was at odds with the
CWA because the Act does not
specifically require a discharger to make
a pr ima facie case that its activities are
exempt from the p it requirements.
The revised language in today’s rule
clarifies that we are not requiring that a
project proponent mare a prima fame
case as to the ah eni of jurisdiction.
Today’s rule sets forth the agencies’
view that the use of merheTli,ed earth-
moving equipment in waters of the US.
results in a discharge of dredged
material unless there Is evidence that
only incidental failback results, but
expressly provides that the rule does not
shift any burdens In ai4mia ieteathe or
judicial proceedings. This is fully
consistent with the Act. See section III
B of today’s preamble for further
discussion.
Some commenters have argued that
because the regulatory definition of
discharge of dredged material is broad.
the presumption is unreasonable and
cannot be refuted. As indicated in
section U C of today’s preambleS we
have removed the presumption language
and added a descriptive definition of
incidental fallback, and also have
clarified that the regulation does not
shift any burdep in any administrative
or judicial proceeding under the CWA.
We believe the definition mirrors the
reach of the statute as interpreted by the
courts and, therefore, is not
unreasonable. As discussed in section
1111 b, we recognize that there will be
situations when the project-specific
information indicates that only
incidental fallback results from the
activity and thus it would not be
regulated
3. Proposal as Misreading Applicable
Case Law
A number of commenters claimed that
we have misread and axe misapplying
many of the cases we cited in support
of today’s action. Most of these
comments addressed our analysis of the
cases relating to what is a regulable
discharge. We do not believe that we are
unfairly reading the major cases in this
area.
From these cases, we know that the
following factors axe relevant to
determining regulable redeposits:
quantity of material redeposited
(Avoyelles and Slinger involved
substantial quantities of redeposition);
nature and type of relocation (redeposits
adjacent to the removal area or
bii .4fihiii g are generally regulated, see
Deaton, Mango, M.C.C. of Florida and
Slinger); redeposit after some processing
of material (Rybachek v. EPA, 904 F.2d
1276(9th Cir. 1990)). As discussed in
section II C of today’s preamble, an
assessment of such factors from the
relevant cases will assist in determining
whether a regulable redeposit takes
place. We believe that in most
situations, when applying the factors
reflected in the cases, earth-moving
activi,ties undertaken using merh ni Dd
earth-moving equipment result in a
discharge. Todars rule reflects that
view while allowing evidence that only
incidental fullback will result from the
activity to preclude regulation.
Several commenters noted
distinguishing facts that they believe
undermine our reliance on some of the
cases we cited. For example. several
commenters noted that Avoyelles
addresses the “discharge of fill
material” not the “discharge cf dredged
material” and, stated that our reliance on
that case is misplaced. However,
Avoyelles addresses the issue of what is
an “addition,” an analysis relevant for
both the discharge of fill and tl e -
discharge of dredged material. Its
conclusion that the redeposit of material
constitutes a “discharge” thus is
relevant to today’s rule. Moreover, the
court in Deaton, citing Avoyelles among
other cases, noted that its understanding
of the word “a4dition” as including
redeposits was the same a nearly every
other Circuit Court to consider the
addition question. Deaton involved the
“discharge of dredged material;” thus,
we do not believe it is approprjnte to
reject Avoyelles because the court only
expressly addressed how that activity
involved a discharge of “flu”
Similar distinguishing facts or other
purported problems were asserted with
respect to other cases. For example, one
commenter argued that we cited Bay-
Houston Towing Company as if the
court had ruled that “temporary
stockpiling of pent in a wetland is a
regulable discharge.” In fact, the
parenthetical in the preamble for Bay-
Houston ac urately reflects the court’s
determination that the activities at issue
were subject to regulation (“Spreading
the sidecasted bog material from the
side of the ditch into the bog for future
harvest’ • ‘involves relocating the
bogmaterials’ foraperiodoftime
varying from ‘a few hours’ to ‘a few
days” or more.’ * Thus, while there
may be something a step further than
‘incidental failback’ which would fall
outside of the government’s jurisdiction
Bay-Houston’s harvesting activities are
not it.”) Boy-Houston Towing Company,
No, 98—73252 [ E.D. Mich. 2000)(slip
opinion) at 8—9, We believe that the
cases that we nf iced in the proposed
and final rule preambles support our
action.
Finally, one commenter argued that
our discussion of the effects of toxic
releases from redeposited material does
not justify our attempt to regulate
activities that ems beyond the scope of
the CWA. As we noted in our discussion
of the comments concerning the use of
an effects based test to establish
jurisdiction (see section lilA I d of
today’s preamble), today’s rule does not
attempt to regulate activities beyond the
scope of the CWA or base our
jurisdiction on ff,,’t, . , We are only
asserting jurisdiction over redeposits of
dredged material that meet the statutory
requirement of a “discharge.”
4. Proposal as Complying With
Applicable Law
Several other commenters asserted
their view that the proposal was

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Federal Register/VoL 66, No. li/Wednesday. January 17. 2001/Rules and Regulations
-4559
consistent with the court’s decision in
NM t. They noted that the proposal
reflected the concept expressed in AMC
and ifA of “incidental fallback.” They
also noted that the proposal does not
regulate incidental faliback, but rather
other types of redeposits that exceed
incidental faliback. These cominenters
pointed eut that the NMA court
explicitly decliáed to hold that the
Corps may not legally regulate some
forms of redeposit under section 404.
For these reasons, the commenters
stressed that the proposal fully
complied with the NMA decision and
nationwide injunction. As discussed in
section DC of today’s preamble. we
agree that today’s rule is consistent with
AMC and NMA because, among other
things, it retains the exclusion of
incidental fullback from the definition
of discharge of dredged material.
One comuienter described the
proposal as consistent with NMA, even
though the proposal may regulate small
or unintentional redeposits of dredged
thaterial. The commenter argued that
NMA is misinterpreted when described
as standing for the proposition that the
word “incidental” in incidental fullback
means that no regulable discharge
results if only small amounts of material
are moved, or material is moved simply
as an unintentional consequence of
other activity. The commeilter stressed
that the CWA prohibits the discharge of
“any pollutant” not in accordance with
a permit, not merely a specific quantity
of pollutants. A Locus on some concep:
of “significant’ quantity of pollutants
by weight, the conunenter emphasized,
makes no statutory or ecological sense
because dredged spoil contains not only
inert sediment but also small chemical
constituents with potentially large
environmental impacts. The commenter
also noted that the CWA at no point
suggests an added requirement that
discharges be intentional.
We agree that neither NMA nor the
CWA es h1icl øc a quantity threshold
triggering the permit requirement, but
instead regulate any addition of any
pollutant which, in the ease of dredged
material, consists of the diit, soil or rock
that is dredged, including any biological
or chemical constituents contained In
thathat. soil or rock. However, the
amount of redeposit is factor that we
believe should be considered In
determining if a redeposit constitutes
more than incidental fullback. We note
that under AMCand NMA incidental
fullback Involves small volume
discharges returned to substantially the
same place as the initial removaL We
also agree that, under these decisions,
incidental fullback does not extend to
covering all material that may be
incidentally redeposited in the course of
excavaton activities. Simply .,because a
redeposit of dredged material may be
unintended does not mean it is not a
discharge, since thç CWA requires a
permit for any addition of a pollutant
into waters of the U.S., regardless of the
intent of discharger. The broad
interpretation of NMfi urged by other
commenters would elevate intent to
overarching status In discerning
whether an addition baa occurred, a
result we do not believe appropriate or
justified under the CWA scheme. This
suggested interpretation would also blur
any meaningful distinction between
incidental fullback and regulable
discharges because it would effectively
remove the term “fallback” from EPA’s
regulation. In our view, to constitute
“incidental failback,” a redeposit
logically must be both “incidental” (i.e.,
a minor, subordinate consequence of an
activity) and “failback” (i.e., in
substantially the same place as the
initial removal). Neither AMC nor NMA
compels us to expand the concept of
“incidental fallback” to include all
“incidental redeposits” without regard
to the volume or location of the
redeposit. and we decline to do so for
the reasons stated above.
A number of coinmenrers suggested
that the agencies should find guidance
not only front the AMC and NMA
decI ions, but also from other court
decisions discussing the discharge of
dredged material. in particular, the
commenters argued that the “net
addition” approach in NMA has been
explicitly rejected in Deaton and
implicitly rejected by many others. Two
commenters quoted Deaton to stress
that ‘ [ tlhe idea that there could
be an addition of a pollutant without an
addition of material seems to us entirely
unremarkable, at least when an activity
transforms some material from a
nonpollutant into a pollutant
and that “tilt is of no consequence that
what is now dredged spoil was
previously present on the same property
in the less threatening form of dirt and
vegetation in an undisturbed state.” 209
F.Sd at 335—36. Based on Deaton.
several coremeuters believed there Is
.ample.supnoxt for a rule considesing the
redeposit of dredged material outside
the place of initial removal as
constituting on addition of dredged
material. The commeuters also noted
that such an approach is consistent with
the numerous other courts that have
concluded that moving around dredged
matetial within the same water body
requires a permit. See. e.g.. U.S. v.
Brace, 41 F. 3d 117, 122 (3d Cir.), cart.
denied, 515 U.S. 1158(1994) (Clearing,
churning, mulching, leveling, grading,
and landcleating of the formerly
wooded and vegetated site was a
discharge of a dredged spoil that under
the specific facts did not qualify for the
404(0(1) fanning exemption); United
States v. Huebner, 752 F. zd 1235 (7th
Ci:.), cert. denied, 474 U.S. 817 (1985)
(Sidecasting and use of a bulldozer to
spread the inotenal over several acres
constituted the discharge of dredged
material that was not exempt under
404(fl); Weiszmannv. U.S.Army Corps
of Engineers, 526 F. 2d 1302, 1306(5th
Cir. 1976)( “Spill” of sediment during
dredging of canal was a discharge of a
pollutant; court rejected the azg.u rent
that a spill is not a “discharge.”).
We agree that Deaton and the other
cases cited offer additional support
Deaton rovides helpful post.NI4A
insights intq what Is an “addition” of a
potlutant. and we note that the NAHB
Motion Decision rejected the idea that
there is a conflict berw eri Dear.on and
NMA. NAH Motion Decision at 16. We
believe today’s rule is consistent with
Dec ron ,.AMC. and I’JMA, and complies
fully with the injunction affecting the
1993 Tulloch Rule.
Numerous commenters looked to the
CWA as a basis for concluding the.
proposal was consijtent with
Congressional intent and NMA. One
commenter observed that numerous
•courts, including the U.S. Supreme
Court. have looked to the underlying
policies of the CWA when Interpreting
authority to protect wetlands, The
commenter noted th t the goal of th
CWA is to maintain the “chemical,
physical, and biological Integrity of the
Nation’s waters,” and discussed the
pollution and adverse effects to aquatic
ecosystems caused by wetlands
dredging and stream channelization
The commenter emphasized that it
would frustrate the goal of the CWA to
not regulate the i cidenta1 soil
movements that occur during
s. .u..dvdbOfl, While we agree that
regulation of discharges of dredged
material into waters of the U.S. is a
critical component of achieving CWA
goals. consistent with AMC and NMA,
CWA section 404 does not extend to
incidental fullback, and today’s nile has
been drafted to ensure that we regulate
onl! on the basis oftheM genf
dredged material.
Some commenters suggested that
today’s rule also be guided by CWA
section 404(f)(2) and Its legislative
history, which ecplicitly require the
regulation ef”incidental” discharges
under certain circumstances even if they
might otherwise be a result of a
specially exempt category of activities.
Most of these commenters concluded

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4560 Federal Register/Vol. 66. No. 11 IWednesday, January 17. 2001/ Rules and Regulations
that section 404(0(2) reflects an explicit
Congressional intent to regulate minor
and unintentional soil movements that
orcur during the process of constructing
a drainage ditch in wetlands or
otherwise are incidental to an activity
that “impoirs circulation and flow or
reduces the reach” of waters of the U.S.
One commenter concluded that this
section of CWA does not provide
support for to4ay ’s rule.
One cominente’ asserted that section
404(0(2) conveys important
Congressional intent regarding how the
term “discharge” should be interpreted,
despite the fact thai the section does not
define the term “discharge.” While’
agreeing with the District Court l xi 4MC
that the section does not use effects “to’
regulate activities that do not
themselves constitute discharges” (951
FSupp. 267, 275 a. 18), the conimenter
argued that section 404(0(2) makes clear
the proposition that: (1) At a minimum
some category of “incidental”
discharges are regulated by the CWA; (2)
regulation under section 404(0(2) does
not depend on whether the “incidental”
discharge itself has significant
environmental effects but only on
whether the activity, to which the
discharge may be only “incidental,” has
certain environmental effects; and (3)
regulated “incidental” discharges can
o ur during the excavation or dredging
process, because the language of the
section about “reducing the reach” and
“impairing the flow” commonly occur
through excavation of drainage ditches,
One commenter suggested that
language of section 404(0(1) similarly
supported the idea that a permit should
generally be required for activities that
drained wetlands. For example, the
commenter noted section 404(f)(1)(a)
provides an exemption for “minor
drainage” associated with forming arid
silvicriltural activity. If discharges from
such activities trigger the provisions of
section 404(0(2), the commenter
asserted, Congress intended “minor
drainage” to be regulated. The
commenter argued that the plain
language in section 404(0(1) provides
guidance for interpreting the term
‘discharge.” Section 404(0(1) states that
“the discharge of dredged or fill
m teyM ” resulting from these activities
“is not prohibited by or otherwise
subject to regulation.” In other words,
the conimenter emphas ’ d, the
Identified activities that may result in a
discharge of dredged or fill material “axe
exempt from section 404 permit
requirements” (quoting Corps and EPA
implementing regulations, 33 CFR
323.2; 40 R 232.3(c)); otherwise, there
would be no need for the 404(0(1)
exemptions.
As discussed in section IU A 2 above,
today’s rule is based on the definition of
“discharge of a pollutant” contained in
section 502 of the Act, as construed by
the caselaw, including the AMC and
NMA opinions finding that incidental
failback is not a regulable discharge
under the Act. We agree that section
404(0, and in particular the use of the
term “incidental” in section 404(0(2)
provides evidence supporting our
rejection of some conimenters’
assertions that the Act restricts us to
only regulating substantial or significant
redeposits of dredged material.
B. Overall Reasonableness of
Presumption
Many commenters expressed views
on the overall reasonableness of the
presumption contained in the proposed
rule. Commenteru maintaining that the
presumption is reasonable stated that it
would not expand the regulatory
authority of the agencies or be contrary
to relevant court decisions, but instead
would clarify how that existing
authority would apply. Others noted
that the presumption is reasonable
because it is consistent with their
experience or Corps experience in
evaluating discharges of dredged
material. Numerous conimenters
affirmed the validity of the examples of
activities In the preamble of the
proposed rule that are presumed to
result in a discharge of dredged
material, including those who asserted
that the presumption would decrease
regulatory uncertainty as a consequence.
These commenters also stated their view
that other specific activities (e,g.,
grading, leveling, bulldozing) and
redeposits of sediment away from the
point of excavation during ditching and
cbannelization were regulable
discharges.
One commenter indicated that the
very nature of how some equipment
opeTates means that it will always result
in a discharge with more than incidental
fallback. Another asserted that dredging
or excavation activities conducted in a
wetland or stream will always result in
a regulable discharge. A number of
commenters provided citations from the
scientific literature in support of the
presumption for these activities. Several
mmm tPrs maintained that the
presumption is reasonable because in
any inesent a person conducting such
activities would be given the
opportunity to demonstrate that only
incidental failback would result.
Today’s rule reflects a reasonable
belief that mee1u .a tai d earth-moving
equipment when used in waters of the
U.S. typically will cause regulated
discharges because they are made to
move large amounts of earth and will
typically relocate the dredged material
beyond the place of i,nitial removal. We
also recognize, however, that the
activities addressed in today’s rule will
not always result in a discharge, and
therefore, the fipal rule allows the
necessary flexibility for considering
project-specific information that only
incidental fallback results.
Other cominenters maintained .that
the presumption was not reasonable,
arguing that it was at odds with
controlling legal precedent. These
commenters argued that to establish a
rebuttable presumption, case law
requires us to hav a rnibrd
demonstrating that it is more ltkely than
not that the presumed fact exists. See
e.g., National Mining Association v.
Babbitt, 172 F.3d 906 (D.C. Cir. 1999)
Some commenters asserted that the
presumption was unreasonable because
it did not clearly articulate the scope of
what is not regulated lie., what is
incidental failback). Some commenters
also maintained that the presumption
was not-reasonable because it would
require a permit for all of the types of
activities addressed in the rule, and
would thus regulate dredging itself
rather than the discharges that result.
Some asserted that because the
presumption is not always true, it is not
reasonable. Other commenters asserted
that the recognition in the proposed
rule’s preamble that specialized and
sophisticated techniques and machinery
may limit redeposits to incidental
faliback undercuts the proposed rule’s
presumption. One commenter likened
the presumption in the proposed rule to
the agencies presuming that all land was
jurisdictional under section 404 of the
CWA and then taking enforcement
action based on that presumption
without establishing that the agencies
had jurisdiction. Another comment
asserted that no technical analysis was
offered to support the proposed rule’s
presumption. -
As previously discussed iii section II
C of today’s preamble, the final rule
does not establish a rebuttable
presumption. Therefore, commenters’
arguments about not meeting the legal
prerequisites for establishing a
rebuttable presumption in the legal
sense are not relevant to the final rule.
Instead of a rebuttable presumption, the
rule states our view that we will regard
the use of mee ’ha ’ed earth-moving
equipment to conduct landcleanng,
ditching, channelization, in-stream
? niT%iI g or other earth-moving activity in
waters of the US. as resulting in a
discharge of dredged material unless
project-specific evidence shows that the
activity results in only incidental

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Federal Register/Vol. 66 , No. il/Wednesday, January 17, 2001/Rules and Regulations
4561
failback. In addition. in response to
comments that we received, we have
included in the final rule a descriptive
definition of “incidental fullback.”
As today’s rule expressly provides
that It does not shift any burden in CWA
judicial or administrative proceedings,
we do not agree that the rule has the
effect of simply presuming jurisdiction,
as the burden to show that a regulable
discharge occurs has not been altered.
Further, because we do not use a
rebuttable presumption In today’s final
rule, the legal standards under the
caselaw for judging the adequacy of an
agency’s record to justify a rebuttable
presumption are not relevant to this
rule. We also do not agree that today’s
rule results in a permit being required
in every circumstance in which the
activities listed occur. Today’s rule
continues to expressly provide that
incidental faliback is not a regulable
discharge: and also provides for project.
specific consideration of whether only
incidental fullback results from the
activities addressed by the rule We
believe that the modified regulatory
language provides a measure of
regulatory certainty as to the types of
activities that are likely to result in a
regulable discharge, while preserving
necessary flexibility to address the
specific circumstances of a given
project.
We also believe that allowing for
project-specific information that the
activity is conducted in a manner that
results in oth incidental fullback is
indicative of that flexibility, rather than
undercutting the validity of our general
view. With respect to consistency with
legal precedent and the CWA, we have
addressed such issues elsewhere in the
preamble, primarily in sections II C and
mA.
Today’s regulation is based on the
nature of earth-moving equipment (i.e.,
machines that move the earth). Contrary
to the assertion that no teeh,,ir 1
analysis was provided, the preamble to
the proposed rule, as well as materials
in the rule’s record, do provide
technical information supporting the
reasonableness of the final rule. We also
believe the rule is reasozihble in that it
helps ensure that activities resulting in
lici k ges meant to beaddzessed by the
CWA are in fact regulated. Moreover,
the rule’s explicit opportenity to
consider project-specific evidence to the
contrary, and express recognition that it
does not shift any burden in any
a ’ 4 ”i” trative or judicial proceeding
under the CWA, ensures that activities
outside our jurisdiction are not
regulated.
ne ct mmP1 t r contended that
activities result In
environmental benefits, providing an
example that the size of certain
unnamed drainages underwent a net
expansion as the result of excavation at
mine sites. Another comment asserted
that the presumption was not reasonable
because during the interval between the
court decision and the publication of
the proposed rule, the Corps, according.
to the commenter, had implicitly or
explicitly acknowledged circumstances
where excavation activities could be
undertaken without a discharge
requiring a section 404 permit.
Whether or not one agregs.that certain
excavation activjtãge result in a net
expansion of waters or net benefit to the
aquatic environment does not bear upon
the issue of whether such activities
produce regulable discharges. Many
restoration activities and other
environmentally beneficial efforts
ecessitate discharges into waters of the
U.S., a number of which are provided
authorization under Nationwide General
Permits.
A number of commenters requested
clarification of, or objected to, the
rebuttal process due to vagueness. These
commenters sought further specifics as
to the type of information that could be
sed to rebut the presumption and the
standard of proof. In addition, they
expressed concern that it would be
difficult or impractical to rebut the
presumption contained in the proposed
rule. These commenters were concerned
that the proposal placed an unfair
burden on the landowner by requiring
the apphcaneto prove a standardless
proposition or not rebut the
presumption and risk enforcement
These cozómenters believed It would be
difficult to present a valid case because
the proposal did not establish a set of
clearly defined criteria for rebutting the
presumption of discharge’, some said
that the rule seemed to require that a
party undertake the activity with its
,inherent enforcement risks in order to
provide evidence to rebut the
presumption; others argued that the
description of a regulable discharge is so
broad that the presumption can not be
rebutted. Others expressed concern that
any effort to rebut the presumption
-would be t elv time-consuming,
confusing, technically challenging and
cest prohibitive. Other commenters
expressed the view that the rule unfairly
placed the burden of determining
jurisdiction on the regulated
community, a burden that should be
borne by the government instead.
As noted in the proposed rule
preamble, the proposal expressed:
our expectation that, absent a
demonstration to the contrary, the activities
addressed in the proposed rule typically will
result in more than incidental fullback and
thus result in zegulable redeposits of dredged
material. It would not, however, establish a
new formal process or new record keeping
requirements, and Section 404 permitting
and application requirements would
continue to apply only to regulable
discharges and not to incideatal fullback.
65 FR 50113.
The proposal wo ild not have required
project proponepts or landowners to
“prove a negative” or shift the burden
of proof as to CWA jurisdiction from the
government to the regulated community
and the final rule clarifies our intent in
this regard. As we have discussed in
section I I C of today’s preamble, in light
of conimçnrs received, we have revised
the rule to make clear that it does not
shift the burden of showing that a
regulable discharge has occurred under
the CWA, and also have included a
descriptive definition of non-regulable
incidental fullback in order to help
provide..a standard against which to
judge regulable versus non-regulable
redeposits. As a result, we do not
believe the final rule somehow
establishes or requires a time-
consuming or expensive rebuttal
process. Instead, it provides clarification
to those who have unwittingly misread
the MdA case to preclude regulation of
all removal activities in waters of the
United States. Issues related to the types
of relevaritinfonnation we will considri
in determining if a regulable discharge
has occurred are addressed in section I I
C of toda!’s preamble.
Other commenters felt the proposed
rule’s presumption was unreasonable in
light of the exclusion provided for
“normal dredging operations.” As in the
original August 25, 1993, Tulloch Rule,
several commenters suggested that all
discharges of dredged material should
be regulated, stating that it does not
seem reasonable or consistent to
exclude discharges incidental to
“normal dredging operations” for
navigation, while regulating excavatior
for non-navigation purposes.
In response we.note that todars rule
does not modify in any respect the
provisions of the 1993 rule related to
normal dredging operations, and we
have not reopened any of these
provisions in this rulemaking. The
rationale for the normal dredging
operation provisions was explained in
the August 25, 1993 rul ’m fring (58 FR
45025-45026), and interested readers
are f d to that discussion for further
details.

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4562 Federal Register/Vol. 66, No. il/Wednesday, January 17, 2001/Rules and Regulations
C. Reasonableness of nile as to specific
actJvz es
Commentess cited a number of
circumstances or scenarios that may or
may not result in a regulable discharge
As a general matter, there was not
sumcient information provided in the
comments to provide a case-specific
response. The discussion below is not
intended to be definitive, as an actual
decision about whether a particular
activity results in a disdiaige needs to
be made on a case-by-case basis
considering actual evidence of the
particular activity in question.
Literature citations and other
information that such commenters
provided have been added to th record
for the rule.
We received several comments
regarding mining practices. One stated
that for ruining-related activities, they
were unable to name examples of any
equipment used that was not included
on the proposed rule’s referenced list as
falling within the rebuttable
presumption. Therefore, according to
the commenter, the presumption had
the effect of precluding “per Se” all
mining related activities performed with
mechanized equipment in jurisdictional
areas in,contzaventiou of the AMC and
NMA decisions. Another asserted that
under the proposed definition, most
placer mines, suction dredges, and
exploration trenches would be required
to obtain an individual section 404
permit. As discussed in section U C of
today’s preamble, the final rule does not
establish a rebuttable presumption, and
provides for consideration of project-
specific information to determine if a
discharge results. We thus do not
believe that today’s rule has the effect of
“per se” preduding or regulating all
activities conducted with mivthig
equipment in waters of the U.S. For
example, as noted in section ID A I a
of today’s preamble, some suction
dredging can be conducted in such a
way as not to produce a regulable
discharge.
Several commenters raised scenarios
involving in-stream I, iTt g or other
activities in dry,
intermittent stxearnbeds, particularly of
the kind that may o rr in arid regions
of the country. One stated that
wiuavation activities In arid regions
- would not result In the “pstade of
horribles” that the agencies presume
result from ,..tion. One commenler
put forward two specific scenarios of in-
stream inh ing activities that he believed
ware not covered as regulated
discharges. They were the use of a front-
end loader to scoop out material from a
dry, intermittent stream up against the
stream bank or other face, and the use
of a scraper to moi e material out of the
thy stream. Some commenters
contended that such activities are
conducted with little or no sediment
redeposition, stating they do not involve
the uprooting of vegetation and are
undertaken when the stream bed is
completely dry after winter flow ends
and before the threat of the first flow in
the next winter. Other comments stated
that it was necessary to recognize that
the southwest is different from the east
where “real wetlands” exist, contending
that, in the west, wetlands for the most
part are only wetlands because the
goveilment s ys they are. The
commenters believed that one rule
should not apply to all, and that the vast
majority of the drainages located in the
souUiwest are in arid climates, which in
many, instances involve nothing more
than isolated ephemeral streams, or dry
washes with very little if any aquatic
resources and with flows that occur
only in response to infrequent rains an
effluent from stormwater discharge. Still
other comments focused on flood
control maintenance activities where
they asserted the disturbances are
minimal and include only minor water
quality impacts such as deposit and
removal of sediments to maintain flow
conveyance. They stated their activities
are typically performed in a thy
riverbed or channel, where there aie no
aquatic resources, the material in the
channel is primarily sand and gravel,
and the potential for downstream
impacts are minimal.
We acknowledge that the presence or
absence of water in a jurisdictional
stream or other jurisdictional area is a
project-specific foct that would need to
be considered in deciding whether an
activity results in only incidental
fallback or a regulable discharge. While
we agree that the presence or absence of
water is relevant to deter’ ining
whether a di h*vge has occurred due to
suspension and transport of material to
a new location, regulable discharges can
still occur In a dry streambed when
mer -h i,ad equipment is used to push
materials from one area of jurisdictional
water to another. Discharges c n also
ocour when material is deposited in
such a way as to cause materials to slide
beck into the jurisdictional area.
Several commenters contended that
by esinhh Hn a rebuttable
presumption that mechanized
landclearing produces more than
incidental failback, the proposed rule
would have resulted in undue hardship
by subjecting them to environmental
review. They believe that the stated
rationale for the agennes’ proposed
presumption with respect to
mechanized landcleaiing fails to
consider the clearly “incidental” nature
of any soil movement associqted witl
such activity. Another colnnienter
maintained that landclearing activities
such as grubbing and raking with a
small D-7 Caterpillar bulldozer, aiong
with a K-C blade and e root rake, can
be conducted so that the only soil
displaced during a landclearing would
be that which would “stick to and
sometimes fall oft’ the tracks of the
bulldozer,” or would be “scraped off the
blade,” or would be “pushed up by [ a)
stump or stuck to (a) stump or its root
mass as it was knocked over and pulled
from the ground.” This commenter also
maintained that the agencies were well
aware of such landclearing techniques
and should acknowledge that they do
not produce regulable discharges.
In response, we first note that the
final rule has eliminated the use of a
rebuttable presumption. As stated
el ewhere in today’s preamble, the use
of mechanized earth-moving equipment
to conduct iandcleaxing, because it
typically involves movement of soils
around a site, would typlcall)f involve
more than incidental fullback. It is
difficult to give generalized conclusions
regarding specific subcategories of
activities or practices, particularly
where the description of the activities
lacks detail. Whether a particular
activity results.in a discharge, or only
incidental failback, necessarily depends
upon the particular circumstances of
how that activity is conducted, and as
a result, today’s final rule allows for
project-specific considerations. We also
note that in the NAHB Motion Decision.
the Court declined to decide, on a
general level, that the displacing of
soils, sediments, debris, or vegetation
incidental to the use of root rakes and
excavating root systems or knocking
down or uplifting trees and stumps to be
non-regu]able under section 404. NAHB
Motion Decision at 15. Whether or not
these types of a Ivities are conducted
so as to avoid a regulable discharge
depends upon project-specific
- considerations, which today’s final rule
provides for. See also section III A I of
today’s preamble for further discussion
of certain activities, such as use of K-
C blades.
Numerous cozementers suggested that
a backhoe was the classic example of
howdigging could be donewithno
more than Incidental follback. They
believed that one-motion a ,.avation,
such as vation with a conventional
hydraulic-aimed bucket (e,g., trackhoe
or backhoe), can be easily accomplished
with only incidental failback resulting.
They contended that the small amount
of material that fails from the bucket is,

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Federal Register! Vol. 66, No. Il/Wednesday, January 17, 2001/ Rules and Regulations
4563
by definition, incidental to the
operation of the bucket and the
excavation arr4 that no dredged material
is introduced into the jurisdictional
area, meaning a regulable discli arge has
not occurred. In summary, they believed
that the proppsed rule was too inclusive
and should explicitly exclude certain
types of excavation from the
presumption of discharge.
The preamble to today’s rule clearly
recognizes that there are situations
where, due to the nature of the
equipment used and Its method of
operation, a redeposit may be limited to
“incidental fullback.” As emphasized
repeatedly, today’s rule would continue
to exclude incidental faliback from
regulation under section 404. We note.
however, that backhoes by their nature
(i.e., the size of the excavation
machinery) are typically used to move
more than small volumes of material in
the course of excavation, and are thus
likely to result n redeposits that exceed
the definition of incidental failback (i.e..
“small volumes of dredged material
(that) * falls back to
substantially the same place as the
initial removal.”) However, the rule
allo,ws for project.specific evaluation of
whether only incidental faliback occurs,
and the definition of incidental failback
includes as an example “the back-spill
that comes off a bucket when such small
volume of soil or dirt falls into
substantially the same place from which
it was initially removed.”
One commenter suggested that
discing is not excavation, since there n
no removal, but merely minor
displacement. They believed that the
proposed rulemalting suggests that
dishing results in more than incidental
failback, and they question how there
can be any fullback of any nature where
there is no emvation. Another
commenter challenged the
reasonableness of the presumption,
because not all me’] an,Dd activities
first “remove” material from waters of
the U.S. and therefore such activities
could not result in material being
redeposited.
We acknowledge that there are
merhiiii .d activities that do not first
v te or remove material and
therefore redepositional discharges do
not occur (e,g., the driving of pilesin
many circumstances). However, we also
note that by ptt h g or redistributing
soil. activities other than v 0 tion can
result in the addition of dredged
material to a new location, and hence
produce a regulable discharge.
Several commenters discussed the
routine operation and maintenance of
numerous enisting flood ontrol
i4* ,mp1c , levees and detention baclnc
They stated that emasting facilities are
vital to tax-paying citizens since they
are critically needed to protect their
health and safety. They also stated the
jptent of a flood control excavation
project is to maintain hydraulic capacity
and entirely remove accumulated
sediment and debris from the facility,
restoring it tq its original lines and
grades. They contended that the
implementation of existing
maintenance-related Best Management
Practices addresses negative impacts of
this work. Additionally they asserted
that, under current regulation, no permit
Is required for excavation, the work can
proceed in a timely manner, and costly
submittals are not needed. They also
contended that their “finished
products” enhance, protect and
maintain water quality. The commenteis
were concerned that all of their
excavation projects under the proposed
rule would be presumed to include an
“addition” of pollutants.
One commenter, on behalf of a water
authority, stated that they frequently
engage in a number of activities subject
to section 404 of the CWA, and which
typically fall under the Nationwide
permit program. Such activities include
the construction of erosion control
structures, 1iai nelizalion for temporary
water diversions during construction of
facilities, and building pipelines that
infrequently occur in waters of the U.S.
They stated that their efforts to enhance
and restore wetlands often require
mechanized landclearing to remove
non-native, invasive vegetation. They
asserted that, if implemented, the
proposed revision would
inappropriately deem these activities
regulable discharges, when in fact they
do not involve discharges beyond
incidental fallback. Another commenter
stated that they have restored several
lakes, ponds, and sediment iii streams
with the one-step removal process
under the Tulloch Rule. They utilize
specialized low groiand pressure
equipment, to provide one step removal
of accumulated sediments in a low
impact m nn r to restore lakes, ponds,
and streams. They also assert that they
are very ‘ “ cientious to prevent any
fill ba& or otherwise discharges 2
materials into any waters of the US.und
that they have very successfully restored
many acres of U.S. waters, restoring
aquatic habitat and navigability, and
property values throughout their
particular region of the US. They
believed a distinction needs to be made
between restoration activities to remove
sediment from smothered aquatic
habitats and draining jurisdictional
areas to convert waters of the U.S. to
upland uses.
In response, we note that some of the
routine discharges from opexatic.’ ,and
maintenance of existing flood confrol
channels, levees and detention baslhe
are exempt from regulation under CWA
section 404(f), and the exemption isn t
affected by this rule. Also, Corps
Nationwide and Regional General
Permits authorize some of the routine
operation and maintenance work. Wb
also note today’s rule does not establish
new requirements or procedures, and
thus does ned necessitA’te costly new
submittals. Additionally, today’s rule no
longer establishes a rebuttable
presumption, and project-specific
information will be ccnside*ed in
determining whether Sn activity results
in more than incidents] failback. If. as
some of these commenters assert, their
activities do Dot result in more than
incidental fullback, then they would not
be regulated under the CWA, nor are
they currently regulated. We also note
that because the determination of
jurisdiction rests on the presence of a
discharge of dredged material, which is
not dependent upon either the effects of
the activity or the intent of the person.
the fact that an activity may or may not
be beneficial, or i undertaken with the
intent to remove material, does not form
the basis for determining jurisdiction.
One commenter was concerned that
the proposed rule’s presumption would
seriously impede the ability of water
users to maintain their diversion
sfructures. irripation ditches. retaining
ponds and reservoirs. In light of the fact
that the term “waters of the U.S.”
determines the extent of the Corps
jurisdiction under the CWA, they
believed that the proposed rule would
subject even the most routine
maintenance of ditches, headgates and
off-channel storage facilities to the
permitting process and that resulting
delays would hamper the e cient
operation of water delivery systems, and
jeopardize safety as well
Today’s final rule does not establish
a rebuttable presumption, arid as
discussed in section II C and III A of
today’s preamble, would not result in
the regulation of incidental fullback. We
also note that because the determmnatior
of?jurisdlcuon rests on tee presenee of
a lictharge of dredged material, which
is not dependent upon the effects of the
activity, the fact that an activity may or
may not be beneficial does not form the
basis for determining jurisdiction.
I). Regulation on Basis of Toxics]
Pollutant Releases
A number of commenters from the
science profession provided extensive

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4564 Federal Register/Vol. 66, No. il/Wednesday, January 17, ZOOifRules and Regulations
discussion regarding the discharge of
pollutants. These scientists contended
that mechapized excavation and
drainage activities in wetlands, rivers
and streams almost always cause the
discharge of pollutants into waters of
the U.S.. and frequently result in
severely harmful environmental effects.
They noted that it is well-established in
the peer-reviewed scientific literature
that wetlands and many pans of nver
and stream beds act as nainral sinks,
collecting sediment, nutrients, heavy
metals (e.g. lead, mercury, cadmium,
zinc) toxic organic compounds (e.g.,
polycyclic aromatic hydrocarbons-
PAEs, polychlorinated biphenyls-PCBs)
and other pollutants which enter
wetlands through polluted runog, direct
discharges, and atmospheric deposition.
Moreover, they provided citations
which describe other characteristics of
wetlands and water bottoms that also
play an important role in storing
precipitated metals and other
pollutants. For instance, over trite, fresh
layers of sediment added to wetland and
river and stream beds can gradually
bury and sequester trace metals and
to,dcs. Vegetation also helps soils
immobilize to,dns and heavy metals by
attenuating flow of surfuce waters and
stabilizing the substrate, allowing metal-
contem’i eted suspended particles to
settle into sediment.
Furthermore, these commenters cited
scientific literature which illustrates
that wetland soils and river and stream
beds immobilize toxins and heavy
metals and other pollutants. Briefly
summarized, these indicate that
anaerobic conditions occur when
wetland, river, and stream soils are
saturated by water for a sufficient length
of time; microbial decomposition of
organic matter in the sediment produces
anaerobic conditions. The anaerobic soil
environment, with the accompanying
neutral pH levels and presence of
organic matter In the sediment, triggers
different chemical and microbial
processes in the soils. These
characteristic conditions of wetland,
river, and stream soils result in the
precipitation of trace and toxic metals as
inorganic compounds, or complexed
with large molecular-weight organic
material—effectively immobilizing these
compounds.
These commenters maintained, and
provided citations Illustrating, that
when a wetland is ditched or drained,
or a riverbed excavated, , thse iie1i,od or
dredged, mechanized activities dislodge
some of the sediments and resuspend
them in the water column from both the
bottom and the sides of the ditch or
other waterbody. Water draining from
ditched or excavated wetlands carries
suspended sediments down ditches to
receiving waters; similar resuspension
and downstream movement occur when
river and stream bottoms are
channelized. They furthermore
provided supporting literature from
scientific journals documenting that
when wetlands are ditched or drained
or rivers and streams excavated, some
pollutants move into the water column.
As described, when wetlands soils are
exposed to air, the anaerobic, neutral pH
conditions that promoted toxins and
heavy metals to precipitate-out can shift
to aerobic conditions, and the soil
chemistry is transformed by the
oxidizing environment and possible
shift in pH. The mobility of metals
bound in sediment is generally
determined by pH, oxidation-reduction
conditions, and organic complexation—
thus, precipitates may begin to dissolve
and become available for transport
when soils are exposed to air.
Contaminated sediment resuspension
does not usually result in a pH change
in rivers; but there, as in wetlands,
microbial action can release such
pollutants as trace elements dunng the
reoxidation of anoxic sediments that
subsequently flow into drainage ditches
and into receiving waters.
Finally, commenters from the science
community pointed out that turbulence
prolongs the suspension of sediment
and contaminants in the water column,
so moving water (e.g.. drainage ditches)
retains suspended materials longer than
standing water. In general, organic
chemicals and toxic metals are more
likely to be attached to smaller, lighter
particles, which also are more likely to
remain suspended in the water column.
The commenters noted that smaller
particles may also give up organic
chemicals more efficiently than larger
particles. Thus, they assert, exposing
cont2ininated sediment to the water
column causes some dissolution of
pollutants, while the direct discharge of
sPltiInDnt into the water during dredging
accelerates the release of conh nhinr.nts.
The agencies thank these commenters
for their detailed discussion of current
scientific literature, which we have
included In the administrative record.
We agree that the evidence presented
points to the harmful environmental
effects that can be associated with
redeposits of dredged material
incidental to excavation activity within
a particular water of the United States,
even those redposits occurring in close
proximity the point of initial removaL
To the extent commenters believe that
we should determine the scope of our
puisdiction based on such
environmental effects, however, we
decline to do so. As stated previously,
today’s rule does not adopt an effect-
based test to determining whether a
redeposit is regulated, but instead
defines jurisdiction based on the
definition of “djscharge of a pollutant”
in the Act and relevant caselaw. We
have chosen to define our jurisdiction
based not on the effects of the discharge,
but on its physical characteristics—i.e..
whether the amount and location of the
redeposit renders it incidental falibacic
or a regulated discharge. Nonetheless,
the e’ idence reviewed in these
comments points to serious
environmental concerns that can be
associated with redepq its other than
incidental fa]]back (which are regulated
under today’s rule), and support the
agencies’ view that it would not be
appropriate, as suggested by some
commenters, to establish quantitative
volume or other “significance”
thresholds before asserting jurisdiction
over such redeposits
One technical commenter contended
that the likelihood of toxicant release
and mobility is many times greater for
navigati nal dredging than it is for most
other excavation activities, especially in
wetlands. This conimenter asserted that
the primary season for this Is that the
vast majority of excavation projects that
would be subject to the proposed rule
do not have toxic substances in toxic
amounts present in the natural soils, but
many navigational dredging projects in
commercial ports do. The commenter
stated that while it is true that some
contaminants may be more mobile in an
oxidized than reduced state, the
conclusion that contaminants will be
released from normal excavation project
activities is without technical merit. The
commenter further recomdiended that
since the effects of navigational
dredging were determined to be
acceptable, the results of those same
studies should be used to establish what
is more than incidental failback. As
noted in today’s.prearnble, the potential
for release and distribution of pollutants
contained in dredged material is a factor
that would be considered in
detei iith g if a regulable discharge of
dredged material beyond the place of
initial removal results. We do not agree
with the apparent suggestion that
wetlands soils are necessarily In a
pristine or natural state. As discussed in
the proposed rule’s preamble, wetlands
can act as sinks for pollutants, and
sequester con!aminants. In addition, we
note that the 404 program applies to
waters of the U.S.. which Include not
just wetlands, but rivets, lakes, harbors
and thelike as well. Finally, we do not
agree that the environmental effects of
harbor dredging should somehow be

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Federal Register/Vol. 66. No. li/Wednesday, January 17. 2001/ Rules and Regulations
4565
used to establish what Is more than
incidental faliback. As previously noted
in section I II Al d of today’s preamble
and also disct sed below, we do not
believe that use of an effects-based test
for jurisdiction is appropriate in light of
the AMC and NMA decisions.
Other commenters strongly opposed
the idea that the transport of dredged
material downstream or the release of
pollutants as a result of excavation
activities should be treated as a
discharge. Some of these commenters
asserted thaf consideration of impacts
on water quality resulted in the use of
an “effects-based test” to establish
jurisdiction. which they indicated was
not allowable under the NMA decision.
Others expressed the view that such an
‘interpretation would result in regulation
of incidental failback and thus not be
allowable
These comments refer to the
discussion in the proposed rule’s
preamble regarding the information that
we would use to evaluate whether a
regulable discharge has occurred
Among other things. that preamble
stated:
In evaluating (whether regulable discharges
bave occurred), the permitting authority will
censider the nature of the cquipthent and its
method of operation and whether
redeposited material is suspended in the
water column so as to release contaminants
or inereese turbidity, as well as whether
downstream transportation and relocation of
redeposited dredged material results.
65 Fed. Reg.at50113.
The aeencies continue tobeheve that
when determining whether a discharge
has occurred, it is relevant and
appropriate to consider whether an
activity results in the release and
distribution of sequestergd pollutants
into the water column or in suspended
material being carried away from the
place of removal before aettling out. In
such cases, a pollutant is being added to
a new location. This is not the use of an
“effects-based test” to establish the
existance of a discharge.’but rather
recognizes that when pollutants are
released or relocated as a result of the
use of earth-moving equipment, this can
result In the “addition” of a ‘pollutant”
from a “point source” to “waters of the
U.S..” and thus constitute a regulab]e
discharge. In Deaton, the Fourth Circuit
recognized that one of the reasons
sidecastlngshould be treated as a
regulable discharge Is thati “When a
wetland is 4redged, however, and the
dredged spoil is redeposited mthe
water or weglapd, p libaa ts that had
been tzappe4 maybe suddenly
- xeleased.’ Daaton..20S F.3dat 336. The’
KMA court inamatad that Is .ua iensian
shau1dnatorege1
excavation and dredging activities that
result only in incidental fullback. 145
F.3d at 1407. We would consider the
nanre and amount of any resuspension
and transport in determining whether a
ragulable discharge occurred.
We also do not agree that allowing for
consideration of the release of
pollutants contained in the dredged
material into the water column and the
transport of suspended materiel
downstream would necessarily result In
the regulation of incidenta ,fallback.
These are relevant factors in
determining if material has been moved
to a new location, and consequently
resulted in the addition of a pollutant to
a new area. However, in evaluating
these considerations, we would take
into account the volume and location of
‘redeposited material so as not to
regulate incidental failback.
A number of other commenters
requested that the proposed rule be
strengthened so as to require a permit
for excavation and channelization
activities which release even small
amounts of pollutants (such as heavy
metals or PCBs) into the water column
or which would result In their transport
down stream. Under today’s nile. such
pollutants (which constitute dredged
material by virtue of having been
dredged or excavated from waters of the
U.S.) (see e.g., 40 R 232.2 (defining
dredged material as “material that is
dredged or excavated from waters of the
U . S. )) would be regulated If
resusoended and transported to a
location beyond the place of initial
removal in such volume so as to
constitute other than Incidental failback.
We believe that is the appropriate test
for evaluating any redeposit of dredged
material, for reasons stated previously.
As explained elsewhere in today’s
preamble, we expect that the use of
mechanized earth-moving equipment in
waters of the U.S. will generally result
in a regulable discharge. However, we
do not believe that it is appropriate to
perse treat the redeposits described by
these comments as a discharge of
dredged nmi l , as consideration
needs to be given to the factors of each
particular case in making a regulatory
decision.
L edjor ’Blrghtliv.e Test
Many rxcnmentezs expressed concern
that the proposal did not provide a clear
dthnltjoe e [ what constitntes a.
.egulsbie4srnt.i’t..
fa1Wayiefth e ce. s.
.wezece ne.d thatavithimt deer
; 1ha r munity
or slmoegda s neadtaoider to - -
‘d e, an en.uJ ty is aniliati to
have resulted in a system that was
arbitrary and uncertain and was too
vague in light of the CWA’s civil and
criminal penalty scheme. Some of these
commenters expressed the view that
without clear standards the rule would
be void for vagueness, not meat the due
process standard of providing fair
wataing of what activities are regulated,
or violate the Constitution’s non-
delegation doctrine as construed in
Amerixn Trucking Association v.
Browner, 175 F.3d 1027 (D.C. Cit. 1999).
Commenters also expressed concern
that this would result In uncertainty and
the need J r subjective case-by-case
determinations. Many ofQiose
concnrned with the lack of a definition
requested the proposal be withdrawn
and re-proposed,to include such a
provision; some of these also indicated
that guidance on what constitutes a
regulable discharge versus incidental
fallback needs to take the form of anile,
and should not be attempted through
informal guidance.
Our May 10. 1999. rulemaking
amended the substantive aspects of thr
definition of”discharge of dredged
material” to provide thAt we no longer
would regulate “any” redeposit, and
that “incidental failback” was not
subject to regulation. That continues to
be the case under today’s final nile. As
noted in section KB of today’s
preamble, the May 10 rulemaking was
considered by the NMA court in its
September 13, 2000, opinion and found
to be in cornoliance with the AMC and
NMA opinions and associated
injunction. NAHB Motion Decision at
10. Today’s rule does not alter the
substantive regulatory definition of
what constitutes a discharge. Rather
than create arbitrary or unclear
staindards as some commenters have
claimed, today’s rule provides
additional clarification for both industry
and the regulatory agencies as to what
types of activities are likely to result in
regulable discharges.
In addition, the preamble to the
proposed rule did provide guidance as
to the agencies’ views on what
constitutes a regulable redeposit versus
incidental failback. For example, thm
preamble explained that as the NM 4
court and other judicial decisions
recognize, the redeposit oféedged e
matsual “some distance” from the point
of regeoval (see NMA. 145 F.3d at $07)
rmr be.a osguibleileeliarge. 6 4 .rnlndy,,,
ne’emible’acted.teoguage*om ’ • J- .
.i n à,i n arretu zsid ”. ..dzedged
vlth.fly ep the ct been
wh It mme 4 . 15.R3d ag.l4 3, as
• eU - e “w a andeposit takes

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4566 Federal Register/Vol. 66, No. li/Wednesday, January 17, 2001/Rules and Regulations
place in substantially the same spot as
the initial removal.” 145 F.3d at 1401).
Moreover, as explained in section II C
of today’s prea nbla. in response to
comments on the need for a definition
of incidental fallback. we have modified
the final rule to include a descriptive
definition consistent with relevant case
law. Since the definition of incidental
fallback reflects discussion in the AMC
and NM/t opitiio s f ncidental
fa lback. and those cases were discussed
in the preamble to the proposed rule, we
do not believe that this revision to our
proposal necessitates reproposal.
A number o commenters requested
that the agencies adopt a “brighthne
Lest” to distinguish between incidental
fallbaçk on the one hand and regulable
discharges on the other. Some of the
commenters opposed to the proposed
rule expressed the vrew that the
proposal was contrary to the MiL4
decision and the preamble to the
agencies’ earlier May 10, 1999,
rulemaking, in that it did not provide a
sufficiently reasoned or clear attempt to
draw a line between incidental failback
and regulable redeposits. We believe
that the descriptive definition of
incidental fullback in today’s rule will
provide greater certainty, but do not
agree that the court in NMA mandated
that we take any particular approach to
defining our regulatory jurisdiction.
NMA only stated that “a reasoned
attempt by the agencies to draw such a
line would merit considerable
deference.” 145 F.2d at 1405 (fOotnote
omitted). As discussed previously, a
descnptive definition of incidental
faliback has been added to today’s final
rule. We do not believe that a x ore
detailed definition is appropriate at this
time.
Some comments suggested drawing a
bright line on the basis of measurable
criteria such as cubic yards of dredged
material, total acres of land disturbed,
gallons of water removed, tons of
sediment disposed, or similar measures.
Although consideration of factors such
as the volume and amount of the
material and natiue and distance of
relocation are relevant in determining
whether incidental failback or a
regulable vtics vge ocouzs, these factors
are inter-twined with one another, and
do not lend themselves to a segregahie
hard and fast qe ’ ’th5 tion of each
specific factor (or combination of
factors) so as to give rise to a hard and
fast test. Moreover, we are not aware of
nor have commenters suggested, a
sound technical or legal basis on which
to establish b .righlline quantifiable
limits an such factors. For example, we
do not believe it is technically sound or
feasible to simply est2h1l h universally
applicable cut-off points for amount or
distance.
Another commenter requested a
brightline test be established by having
the rule state a presumption against
discharge for incidental soil movement
associated with mechanized
landclearing and excavation activities.
More specifically, this commenter
recommended that the rule provide that
no discharge results from incidental soil
movement associated with mechanized
lan dc1earing, ditching, chazinelization,
draining, in-stream mining, or other
meeh2ni,ed excavation activity such as
when (1) excavated soils and sediments
fall from a bucket, blade or other
implement back to the same general area
from which it was removed; (2) surface
soils, sediments, debris or vegetation are
scraped, displaced or penetrated
incidental to the use of machinery; (3)
excavation machinery is dragged
through soils or sediments; or (4)
vegetative root systems are exposed. or
trees and stumps are knocked down or
uplifted, incidental to the use of
machinery. The commenter’s
recommendation went on to provide
that otherwise the Agency may
demonstrate on a case by case basis that
me h mved excavation activity in
waters of the 11.5. results in the
discharge of dredged material.
We do not agree with this suggestion
for a number of reasons. First, we
believe a test of the “same general area
from which it was removed” for
determming whether incidental failback
has occurred could create the
impression that material redeposited in
virtually any part of the work area
Would not be a discharge, which we
believe would be too broad of a test.. As
both NWi and Deaton recognize, for
example, placement of dredged material
in as close a prortimity to the excavation
point as the side of a ditch can result in
a regulable redeposit. We thus believe a
formulation based upon use of a “same
general area test” to be too expansive to
properly convey that short-distance
relocations can result in regulable
discharges. As discussed in section!! C
of today’s preamble, we do believe a faii
and objective reading of the AMC and
NMA cases and the NAHB Motion
Decision, as well as other relevant
redeposit cases discussed in that section
of the preamble, Is that incidental
failback ocours when redeposit takes
place in “substantially’i the same place
as the initial removal, and have so
provided in today’s final rule.
MOLwvitii, the examples provided by
the commenter (e,g., dragging of
equipment, scraping or displacement of
soil or vegetation, uplifting’of tree roots)
often can result in the relocation and
redeposit in waters of the U.S. of
substantial volumes of material over
considerable distances so as to
con titute more than incidental failback
under the AMC and NMA opinions. The
approach suggested by this commenter
reflects perhaps a different conception
of what constitutes incidental fullback
than is contained in today’s rule. If
incidental fullback were to include any
material incidentally redeposited in the
course of mechanized activity, the
est ,lishment of a presumption of
exclusion of the activitier listed by the
commenter might follow as reayuable.
As discussed i me ia ely above in this
section, however, we believe that this
formulation is not warranted and would
be too broad. We believe that we have
properly described incidental fullback
in today’s rule, and that it would not be
reasonable to assume the activities
listed by the commenter only cause
incidental failback. In fact, as today’s
rule clarifies, we regard such activities
as typically resulting in more than
incidental failback, absent project.
specificinformation to the contrary.
However, there is substantial eidbility
under today’s rule to consider the types
of activities listed by the commenter
and determine on a case-by-case basis
whether a specific project is subject to
regulation.
Other coinmenters recommended that
while the term “discharge” should not.
encompass the fullback of material
precisely to the same spot during
excavation activities, when the
movement of the dredged material raises
new environmental concerns (such as
release of pollutants into the water
column or more ready erosion of the
material and movement downstream),
thu relocation should be treated as a
discharge. These and other cominenters
also requested tbatthe nile make clear
that a permit is required for excavation
and chnnn llzetion activities which
release even small amounts of
pollutants (such as heavy metals or
PCBs) into the water column or which
would result in their transport
downstream. For reasons stated
previously, we do not agree that
whether an activity results in new
environmental concerns should be used
as the basis for establishing jurisdiction.
As discussed in both the proposed rule’s
and today’s preamble, the nature and
amount of tiunsport and resettling of
eAI, V.Ited material downstream from
the area of removal, or release of
pollutants previously bound up in
sediment beyond the place of Initial
removal, are relevant factors to consider
in determining if movement and
relocation other than incidental faflback

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Federal Register/VoL 66, No. 11/Wednesday, January 17, 2001/Rules an 1 Regulations
4567
has occurred. Thus, these factors are
relevant tp determining whether a
redeposit other than incidental faliback
occurs, and are not used to assert
jurisdiction on the basis of
environmental effects,
Other comments urged that the rule
identfy certain activities ps always
requiring a permit or consisting of a
regulable discharge. Examples
mentioned in such comments included
sidecasting, h2ekflting, and stockpiling;
these supporting strengthening of the
proposal also induded bulldoring.
grading, and leveling as always
requiring a section 404 permit. As
previojisly djscussed in section SC of
today’s preamble and the preamble to
the proposed rule, case lawhas4ound
number of activities (e.g.. sidecastiug,
backfihling of trenches) to be regulable
discharges under section 404. We
believe the preamble discussion on
these points to be sufficiently clear and
that inclusion of such specific examples
in the regulation itself is unnecessary.
To the extent grading and leveling
involve redistribution of soils in waters
of the U.S. around a site to create a level
area, such activities would appear to
typically involve not only a discharge of
dredged material (through the pushing
of dredged material from one location to
another) but also possibly fill material
(by filling low areas). See Avoyelies
(movement of soils to depressed areas as
discharge of fill material). In any event,
case law on redenosit issues continues
to evolve over time. Accordingly, we do
not believe the listing of specific
examples of discharges in the regulation
itself to be appropriate.
F. Clarity of Propose! and
implementation Issues
1 Clarity
A number of commenters sought
clarification with regard to section
404(0, as they were concerned or
confused by the references to section
404(0 in the preamble to the proposed
rule. Most of these commentera
interpreted the preamble language to
indicate that the rule would establish
that certain silvicuhure or fanning
activities described in section 404(f) as
being eicempt’hperniltaequirements
*mild now be subject to regulation.
particularly because these activities may
involve the types of marhliiø,y
actions Je 11 ced In the proposal.
We regret that the references to
section 404(0 in the preamble may have
caused confusion regarding the
relationship of section 404(f) to the
and empk c n that today’s
rule does not change the interpretation
or use of the exemptions in any mnTm ,
Today’s rule concerns the fun’I n’ental
issue of what activities result in a
discharge that is regulated under section
404. The section 404(f) exemptions
describe those activities that, although
resulting in a discharge, do not require
a permit if they axe conducted
consistent with that provision.
Activities covered by section 404(f),
including silvi culture, ranching, and
agriculture, involving the use of
equipmeqt and methods such as those
described in the rulemaking remain
exempt, subject to the provisions of
section 404(f), and are not altered by
today’s rule.
2. Comment Period
Two commenters requested an
extension of the public comment period
in order to better gauge the effects of the
rule on their membership. One of these
requested additional time to assess the
potçntlal Impacts of the proposal on
their industry and also requested a
public hearing on the proposal. The
other cominenter expressed the view
that the proposal was fundamentally
different from previous iterations of the
Tulloch Rule, and sought additional
time in order to obtain more information
on the physical settings and the use of
many types of equipment by its
membership. We believe that a 60-day
comment period was adequate time to
obtain widespread and effective public
comment and that extending the public
comment period or holding a public
hearing is unnecessary. In generaL it
appears the public understood the
proposal and was able to provide
comments in a timely fashion. Of the
approximately 9.650 comments that
were received, only two sought an
extension of the comment period, and
only one of those requested a hearing.
In addition, those two commenters did
file specific and substantive comments
within the 60-day comment period.
3. Implementation
A number of commenters raisec
issues associated with the
implementation of the rule, including
the ability of the agencies to effectively
enforce, monitor, and budget for it, as
well as the appropriate exercise of
discretion on behalf of the agencies.
Several commenters iniiimtbd that the
agencies need to dedicate enough st
and other resources nec— - - 7 to
effectively enforce the rule. One
commenter specifically recommended
that the agencies request the necessary
fin th .ig from Congress to allow effective
implementation. Another commenter
specifically mentioned the need for the
agencies (or States or local governments)
to monitor activities not requiring a
permit, to determine if they were in fact
not resulting ma discharge. One of
these commenters supported review and
documentation of completed projects
determined a priori to not result in a
discharge, to ensure that in fact n
discharge resulted. One commenter who
supported the objective of the proposed
rule nonetheless recommended that we
streamline the permitting process
associated with activities that may
involve incidental failback. Another
commenter specifically cited concern
that the Corps would not be able to
efficiently process permits and asserted
that the processing of Nationwide
General Permits is not as efficient as the
agencies contend.
We concur with the commenters who
stated that it was rmportant lorus to
have adequate resources to effectively
enforce, monitor. and otherwise
implement the proposed rule.
Consistent with agency priorities for
aquatic resource protection and our
overall missions, we do propose budgets
to adequately accomplish our CWA
statutory objectives. Effective
enforcement and monitoring is an
important part of the section 404
regulatory program. We will coordinate
with Staje and local partilers to ensure
th t tod r’s rule, as well as wetlands
regulations, in general, have effective
compliance. Over the last two years,
unreported Tulloch activities presented
a challenge to us in obtaining
information on the extent and natdre of
wetlands destruction that has occu:re
following the NMA decision. While
many of these challenges remain, we
believe that satisfactory monitoring, in
cooperation with others, can be
accomplished to adequately track the
results of today’s rule. We agree that
pre-project information alone should
not necessarily be the basis for
concluding that an activity results only
in incidental failback and that other
measures, such as field investigation or
site visits. may be needed to assess
whether an activity has actually resultec
in any regulable discharges.
The agencies’ goal is to work
cooperatively with the public to ensure
that their activities in the Nation’s
waters are fully consistent with the
iequizements.of the hct end I ‘t!
lmpl inenting regulations, including
today’s rule. The Corps of Engineers is
theprinthpal contact for the public both
in the context of responding to
questions that arise prior to conducting
any proposed activity in waters of the
US., as well as monitoring permitted
and unpermitted activities as they
proceed in waters to verify compliance
with permit conditions or, in the case of
unpermitted activities, to ensure that no

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4568 Federal Register/Vol. 66. No. li/Wednesday, January 1?, 2001/Rules and Regulations
regulable discharge takes place.
Consistent with its statutory
responsibilities and relevant
Memoranda of Agreement between EPA
and the Corps, EPA also may serve as
the lead agency in determining whether
a regulable discharge has occurred.
It is a more effective use of agency
resources arid more efficient for project
proponents to coordinate with the Corps
before an activity in waters of the U.S.
occurs to determine whether or not the
project tiig ess the need for a CWA
permit. We strongly recommend that
anyone proposing piojçcts which, for
example, involve earth-moving
activities using mechanized equipment
such as bulldozers or backhoes contact
the Corps well in advance of the project
to determine whether or not a regulable
discharge will occur. As appropriate.
the Corps will also be involved in
working with the public on a project-
specific basis to monitor ongoing or
completed projects which proceed
without a section 404 permit through
site visits, remote sensing, field
investigations and so forth to verify that
no regulable discharges have occurred.
With respect to streamlining the
permit process for discharges that may
involve incidental failback. we note that
neither the proposal nor today’s rule
establishes new procedural or
informational requirements. In addition.
we have provided additional discussion
in today’s preamble (see section tIC) as
well as a descriptive definition of
incidental fallback in order to darifv the
factors and information relevant to
making the determination of incidental
failback versus regulable discharge.
Given that case-specific evidence
regarding whether an activft F iesults
only in incidental failback will be
considered, general authorizations
based on a common set of circumstances
would be inappropriate. -
We have undertaken a number of
succ c fnI efforts to ensure that
activities regulated under the section
404 program are evaluated in an
efficient e iit r , while ensuring
environmental protection. In particular.
with regard to the comment on the
development and use of Nationwide
General permits. such permits have
provided an efficient process for
allowing discharges with truly mmimel
impacts to move forward with little
regulatory review, consistent with
conditions that provide for aquatic
resource protection. Despite successive
annual increases in the use of general
permits over the last ten years.
processing times have remained low.
Some 63,780 general permits r uired a
priori action on the part of the Corps in
Fiscal Year 2000 (as compared with
approximately 4,313 individual
permits), and these were evaluated in an
average time of only 19 days.
A number of commenters addressed
the issue of discretion by the agencies
in implementing today’s rule. The
majority of,these coinmpntçs advocated
that discretion on the part of Corps
Districts should be minimized. Several
commenteis stressed the need for
consistent interpretation and
application of the rule, citing the fact
that several State and local jurisdictions
have multiple Corps Districts. Other
commenters noted that national
guidance or consultation with the
Headquarters offices of the agencies
should be required, particularly if any ,
local operating procedures for.the rule
are developed. One commenter
recommended that C orps field staff
document all communications with
potential dischaigers and submit such
information to Corps and EPA
Headquarters for periodic review. One
commenter indicated that if any
determination is a ‘close call” with
regard to whether or not a discharge
constitutes incidental failback, it should
be considered regulated in order to err
on the side of protecting wetlands. One
commenter asked for clarification that
previous understandings with Corps
Districts regarding ertain “Tulloch”
activities would remain in effect,
specifically mentioning the preamble
text in the proposed rule regarding the
cutting of vegetation, as well as the use
of vehicles and other “landcleaxing and
excavation practices that have been
deemed to fall within the exclusions..
under the Tulloch Rule.” Another
commenter provided a specific example
of guidance provided by a District that
the commenter asserted ran counter to
the agencies interpretation of the NMA
decision: that entities may engage in
instream mining and dredging if the
intent of the work is to create i
discharge of dredged material that
results only in incidental failback.”
We concur with those commenters
that advocate r ’m cktent implementation
of today’s rule across Corps Districts.
but also recognize that the case-specific
nature of incidental faliback
dete nrnetions necessitates some
element of discretion. We have
developed guidance on program
implementation in light of the AMC and
NMA decisions (issued on April 11.
1997, and updated on July 10, 1998), as
well as provided further gwdabce in the
May 10. 1999, rulemaking and today’s
rulemaking action. As additional issues
are raised in the application of today’s
rule that lend themselves to additional
guidance. we will provide such
guidance. Moreover, to the extent that
regional circumstpnces allow regional
guidance to be provided on
circumstances common to a particular
part of the country, we will provide that
as well. In the preparation of any
regional guidance and In the
consideration of “close calls,” our
headquarters will provide bversight and
review to assist our field staff in
reaching determinations that are
consistent with govern1 ng law.
With respect to previous
understandings with Corps Districts
regarding the regulation of certain
“Tulloch” activities, today’s rule
describes how potential dischar&es will
be addressed. While the lack of specific
jetails in many of the specific
comments prevents us from making a
determination here, we con clarify that
the cutting of vegetation above the roots
is not regulated as a discharge of
dredged material under section 404. 33
CFR 323.2 (d)(2)(ii) and 40 CFR 232.2
Likewise, driving vehicles such s cars,
off-road vehicles, or farm tidctors
through a wetland in a manner in which
such vehicle is designed to be used
generally is not subject to regulation
under CWA section 404. See our August
4.1995, guidance entitled
“Applicability of Clean Water Act
Section 404 to Vehicle Use in Waters of
the U.S.” Landcleasing and excavation
practices are discussed above in section
UI C of todays preamble. With respect
to the comment on guidance said to
have been provided by a District that
entities “may engage in instream mining
and dredging if the intent of the work
is to create a discharge of dredged
material that results only in incidental,
failback,” the proper consideration is
not the intent of the discharger. but
whether, in fact, the activity results in
only incidental fullback.
C. Need to Amend CWA
One commenter, while disagreeing
with the MifA decision and its
reasoning, indicated that besides
rulemaking, the agencies also should
seek action by Congress to amend the
CWA so as to clarify agency authority to
fulfill their duty under the CWA to
protect the Nation’s waters. dther
commenters who were opposed to the
proposed rulemaking expressed the
view that it was necessary to obtain an
amendment to the CWA before, or
instead of, proceeding with rul,i . lrii g.
Many of these i inmenters believed that
the proposed rule exceeded the
agencies’ authority under the CWA (see
discussion in section III A of today’s
preamble) and thus could not be
undertaken without an amendment to
the Act. In fact, one such commenter
suggested that language in EPA

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Federal Register/VoL 66, No. li/Wednesday. January 17, 2001/Rules and Regulations
4569
Administrator Carol Browner’s Press
Release announcing the August 16,
2000, proposal reflected a recognition
that the agencies do not have the
authority to undertake the action
reflected in this rule because it called on
“Congress to strengthen the Clean Water
Act to fully protect and restore
,merica’s wetlands.” Others felt that in
light of the uncertainties and
importance of the issue It was
appropriate or even necessary to wait
for Congressional action before
proceeding. We do not agree. We believe
today’s rule Is entirely consistent with
the current CWA and relevant case law,
and helps to clarify for the regulated
community and the agencies what
activities are likely to result in regulable
discharges. In keeping with the AMC
and NMA cases and the NAJ B Motion
Decision, today’s rule does not provide
for regulation of “incidental feliback,”
and a descriptive definition of that term
has been provided In todays rule
language. The language in the press
release calling on Congress to strengthen
the Act was a recognition that the
statute, as interpreted in AMC and
JVMA, does not extend to regulating
incidental failback. Since today’s rule
does not regulate incidental faliback.
but rather articulates an approach to
determining ubether redeposits of
dredged material come within our
existing statutory authority, today’s rule
is consistent with both the press release.
and the CWA as interpreted by the
courts.
H. Other issue. ’
1. Loss Data
As noted in the proposed rule,
available information indicated that
more than 20,000 acres of wetlands
were subject to ditchina and more than
150 miles of stream channelized since
the ZVM4 decision. The activities
causing such “Tulloch” losses typically
take place without a CWA section 404
permit, and therefore are not
systematically reported to either EPA or
the Corps of Engineers. As a result, the
numbers are believed to likely
underestimate actual Tufloch losses.
The proposed rule Invited the public to
submit futilier relemnt information on
Tuiloch losses.
One cMatnenter suggested that this
invitation to submit data on Tulloch
losses was en atezapt to establish a port
hoc rationalization for today’s rule. We
disagree. The CWA section 404
estahHche a regulatory program for
discharges of dredged material Into
waters of the US. The Act does not
hHch a threshold of Impacts after
which an activity will be regulated, nor
as explained in sections UI A 4 and UI
D of today’s preamble, does today’s rule
use an effects.based test to establish
jurisdictipn. As a result, we do not need
aggregate data showing extensive
Tulloch losses or impacts to justify
today’s rulemaking. Such information is
nonetheless helpful in answering
inquiries from the public about the
impacts of Tulloch activities, as well as
in helping focits our limited resources
on important environmental problems.
Many commenters empjiasszed that
the uncertainty created by the NMA
decision has led to a surge in wetlands
drainage, resulting in deposits into
wetlxpds of both unregulated
“incidental failback” and regulable
redeposit of dredged material.
Commenters expressed concern that
project proponents may decide that a
section 404 permit is not necessary and
not contact the Corps for verification.
One commenter described a philosophy
of “if you don’t ask, ‘ iou don’t have to
worry about being told no.” Several
commenters fuggested that Tufloch
losses will continue to increase until the
regulatory definition of”discharge of
dredged material” is clarified and
legislation closes the Tulloch
“loophole.” We appreciate these
concerns and believe that by setting
forth our expectation as to activities that
are likely to result in regulable
discharges, today’s rule will help
enhance protection of the Nation’s
aquatic resources
Several commenters asserted that the
proposal’s estimates of Tulloch losses
were conservative, and do not Include
impacts from numerous activities
ocxurring throughout the U.S. For
example, one commenter noted that its
State data underestimated total wetland
acres drained because estimates were
based on less than 80% of identified
sites on which unauthorized drainage
had occurred. Other commenters
emphasized that comprehensive data on
TUJIOCh losses is difficult because
developers are not contacting the Corps
of Engineers or EPA about many of their
projects. We agree that because Tulloch
losses are not systematically reported,
we have likely underestimated the
magnitude of these losses,
N amerous submitted
i, .fn, . isio ab t Wetlands and stream
losses since the ecislon in NMA, and
emphasized that Impacts are national in
scope. One commenter noted that
Tufloch losses have been reported in
some of the six ecoregions in the U,S,
that have been targeted for special
lnve ent due to their biological
diversity, and expressed concern that
future losses in these key regions could
have serious Impacts on tourism.
fis ng, and other industries reliant on
eøolcgical resources. Many commenters
highlighted Tulloch losses in their’
areas, or described aquati’c resources
that could be,destzoyed by future
projects unreguiated due to the
“Tulloch loophole.” These examples’
illustrate the nationwide implicatioçs of
the NMA decision. Defuriptions were
received of losses in Ar ence ,
California, Connecticut, Georgia, Iowa
Kentucky, Louisiana, Mississippi,
Missouri, Nebraska, New York, North
Carolina, Ohio, Oregon, Tennessee,
Wisconsin, and Virginia, among others.
Public comments providing these
examples are included in the record for
today’s rule?
Many commeuters discussed the
environmental effects of Tulloch losses.
Some commenters noted that extensive
ditching and drainage of wetlands had
resulted in siltation, sedimentation, and
turbidity violations in designated
shellfish waters, primary and secondary
fishery nursery areas, and other
sensitive coastal and estuanne waters.
Coinmeaters described potential adverse
effects of insteam’mining on
anadromous fish habitat in the Pacific
Northwest and other regions. Several
commenters expressed concern about
the potential inipacts on prairie
potholes and other wetlands that
provide important habitat for migratory
waterfowl. Several coinmenters
expressed concern about impacts on
neighbors of unregulated wetlands
drainage. Other adverse environmental
effects from Tulloch losses described by.
commenters included: flooding of
neighboring businesses, homes and
farms; degradation of receiving waters;
shellfish bed closures; degradation of
drinking water supplies; loss of critical
habitat loss of aesthetics; loss of
recreational activities such as bird
watching; and increased tonics loadings
from disturbed sediments.
Several commenters discussed the
environmental impacts of the discharge
of dredged material. One commentc:
quoted the court decision in Deoton,
noting that the environmental impacts
from the discharge of dredged materiel
“(aire no less harmful when the dredged
spoil is redeposited In the same wetland
from which it was excavated. The
ffects of hydrology and the
envixo” ” are the same.” The adverse
environmental impacts of discharge
described by commenters Included such
effects as: Increased turbId1ty reduced
light penetration; mortality of aquatic
plants and sulmels depletion of
dissolved oxygen; resuspension of
contaminants; release of pollutants
(heavy metals, nutrients, and other
chemicals) from suspended material;

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4570 Federal Register/Vol. 66. No. 11 /Wednesday, January 17, 2001/Rules and Regulations
biological uptake of pollutants;
sedimentation and smothering of
beathic organisms; algal population
explosions; fish kills; nuisance odors;
and a decline in blodliversity As we
noted in our discussion of the
comments concerning the use of an
effects bas d test to establish
jurisdiction (see sçction Ill A 1 d of
today’s preamble), to Iay’s rule does not
attempt to regulate activities beyond the
scope of the CWA or base our
jurisdicti n on effects.
Some commenters characterized as
unsubstantiated the prea ble’s
estimates of wetland acres lost and
streajr mile channelized after the
Tulloch Rules invalidation. One
commenter also suggested that data on
Tulloch losses should be grouped by
industry category. We agree that precise
comprehensive data on Tulloch impacts
is difficult to collect. The estimates
discussed in the proposal reflect
projects that have come to the attention
of agencies’ field offices, through field
observations, individual reports, and/or
newspapers and other information
sources. We believe that the preamble
estimates of Tulloch losses are
conservative, because persons
undertaking such activities often
proceed under the assumption that no
authorization from the Corps is
required. The proposals request for
information on Tulloch losses is
intended to help ensure available data is
as complete as possible. We do not
agree, however, that the collection and
categorization of data by industry is
necessary, because today’s rule does not
regulate by industry category but on the
basis of discharges to waters qf the U.S.
One commenter asserted that Tulloch
losses have been more than o et by
mitigation required for permitted losses,
because the preamble to the proposal
cites estimates of over 20,000 acres of
unregulated wetlands loss after
invalidation of the Tulloch Rule, plus
an estiotated 21,500 arms of wetlands
lost through authorized activities in
1999, wIth 46,000 acres of
compensatory mitigation obtained in
1999. However, only permitted losses
resulted in ob *mi g compensatory
mitigation. Compensatory mitigation
ratios for permitted losses are typically
higher than 1:1 to address a variety of
factors considered during permit
evaluation, such as the expected
lifr.lflinod of success; the percentage of
restoration, and/or
preservation intended; the temporal loss
of functions and values before the
mitigation is fully functioning; and
other relevant considerations. Tulloch
losses, on the other band, involve
activities which are not subject to
environmental review or compensatory
mitigation, thus, the compensatory
mitigation figures reported in the ‘
proposed rule’s preamble ware designed
to offset permitted losses only,.not
Tulloch losses.
One commenter disagreed about
implications of wetlands losses,
expressing doubt abotil whether
wetlands losses might result in a
potential for increased flooding, and
characterizing the link between the two
as an unsupported assumption. We
note, however, that an e4ensive body of
scientific literature indicates that
wetlands typically store water at least
temporarily, keeping it from flowing
furtber downhill and dpwnstream,
thereby helping reduce the frequency
and severity of flooding. For example,
the U.S. Geological Survey’s National
Water Sunimarv on Wetlands Resources
(1996) notçs that “(i)n drainage basins
with flat terra!n that contains many
depressions (for example, the prairie
potholes and playa lake regions), lakes
and wetlands store large volumes of
snowmelt and (or) runoffL These
wetlands have no natural outlets, and
therefore this water is retained and does
not contribute to local or regional
flooding.” Other studied, such as the
1994 report by the Interagency
Floodplain Management Review
Committee, similarly have found links
between wetlands losses and flooding.
Sharing the Challenge: Floodplain
Management Into the 21st Century, at
Vol. 1, pg. ix; Vol. V at pp 79—88.
2. Miscellaneous Issues
One commenter raised an issue with
respect to whether or not snow plowed
into headwater creeks would be
regulated by today’s rule. Although we
recognize that other Federal or State
requirements may govern such an
activity, we do not regulate snow
plowing into waters of the US, under
section 404. Today’s rule addresses
discharges of dredged material, which
snow is not. However, if during a snow
removal operation, snowplows, front
loaders, bulldozers, or similar
equipment discharge gravel, sand, or
other material into waters of the U.S. or
move sediment or soil to new locations
within a water of the U.S., then such
activities would be regulated under
section 404.
Some commenters raised ,er,nc
about the definition of “waters of the
U.S.,” expressing the view that the term
is very broad and may be overly
inclusive. Today ’s rule clarifies the
definition of the term “discharge of
dredged material” regulated under CWA
section 404. It does not address the
definition or scope of “waters of the
U.S.” We are contemplating initiating
rulemaking to clarify the definition of
“waters of the US.” (see the Unified
Regulatory Agenda, 65 FR 23574 (April
24, 2000)), and would encourage public
comments on a proposed definition t
that time. We also note issues related to
the scopeof”watersof the U.S.” are
currently pending before the Supreme
Court in Solid Waste Agency of
Northern Cook Countyv. U.S. Arm;’
Corps of Engineers (No. 99—1178)
(S WA NCC’}.
One commenter indicated support for
the dpletion of the “grandfather”
provision hat was a part of the previous
definition of dredged oiateri4...We
agree, and today’s final rule deletçs that
provision as being Out of date and no
longer necessary
A number of commenters raised
issues that, while related to wetlands
regulation, were not germane to the
prOpOSe5l rule. Examples include
comments regarding delineation
methodology or geographic jurisdiction’
of the section 404 program, fill material
regulation or the agencies proposed
rulemaking regarding the definition of
fill material, and general statements
about section 404 regulation. These
comments have been made available to
other relevant dockets or addressed, as
appropriate, in the record for today’s
rule.
3. Economic Issues
Many commenters opposed to the rule
expressed concern over its economic
effects. Some of the commenters raising
economic concerns believed that the
proposal would have regulated
“incidental failbaclc” or was a return to
the Tulloch Rule invalidated by the
court in AMC and NM / I. Many of the
comments raising economic issues
questioned the discussion in the
proposed rule’s preamble that it did not
alter or enlarge section 404 program
jurisdiction or create information
requirements. Other commenters
expressed concern with the expense and
difficulty of rebutting the presumption
contained in the proposed rule,
espedally when, in their view, this was
a standardless proposition. Another
asserted theirbelief that the reference in
the proposed rule preamble to
“potentially” regulated entities was
misleading, as all persons engaging in
excavation activities listed in the rule
would be regulated. Some of the
commenters believed the proposal
would have an annual economic effect
of more than $100 million dollars, and
that issuance of the proposal without a
detailed economic analysis or
consulting with affected entities
violated the requirements of the

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Federal Register/VoL 66, No. 11/Wednesday, January 17, 2001/Rules and Regulations
4571
Regulatory Flexibility Act (RFA) as
Amended by the Small Business
Regulatory Enforcement Fairness Act or
the Unfunded Mandates Reform Act
(UMRA). Sqrce of the commenters
expressed concern that, coupled with
the changes made in the Corps
Nationwide Permit Program, the
proposal would result in increased
delays in obtaining authorizations; one
commenter believed the proposal
somehow superceded existing
Nationwide Permits. Others questioned
how the proposed rule could be deemed
to have smell economic effects when the
preamble to the proposal noted upwards
of 20,000 acres of wetlands were subject
to ditching and more than 150 miles of
stieams nI lizDd . Others questioned
why, if the rule was not economically
significant, it was deemed a “significant
regulatory action” for purposes of
Executive Order 12866. One commenter
expressed concern over the absence of a
grandfather provision.
We continue to believe that the
economic impacts of the rule will be
insignificant. While some of the
commenters expressing concern with
economic impacts believed they would
have to consult in advance with the
Corps or that all excavation activities
would be subject to regulation, this is
not the case. Nothing in today’s rule
alters the current regulatory provisions
that exclude incidental fullback from
regulation as a discharge. provisions
which were found to comply with the
AMC and l%MA decisions by the court
in its NABB Motion Decision. Today’s
rule does not alter that status quo, and
we thus do not agree with commenters
whose economic concerns were
premised on the proposal somehow
enlarging progr’am jurisdiction or
reinstating the invalidated Tulloch Rule.
See also section I II A of today’s
preamble for further discussion.
Moreover, as noted in section BC of
today’s preamble, the final rule has been
clarified in a number of respects to
make clear it is not creating or imposing
new process or Information
requirements and will not result in
substantially incieased workloads. First,
it no longer uses a rebuttable
pxesumotion. Second, the final rule has
been rlafified to expressly provide that
it does not alter any burden in any
_____ or judicial proceeding
under the CWA. Finally, we have
provided a descriptive definition of
Incidental fullback which helps to
clazl for both the regulated community
and regulatory staff the type of
redeposits which axe not subject to
regulation. In this respect, It may
actually reduce costs for the potentially
regulated entities conscientiously
attempting to comply with the existing
regulations. Moreover, as noted and
discussed numerous times in today’s
preamble, the final rule continues to
provide for project-specific
considerations in determinin If more
than incidental fullback results. In this
regard, the proposed rule’s preamble
reference to “potentially” regulated
entities was intended to convey this
case-by’case nature, and the final rule
preamble thus continues to use that
formvla oir. For all of these reasons, we
continue to believe that today’s rule
does not have substantial economic
effects, and does not thgger the
requirements of the RFA as amended or
UMRA
Today’s rule doe not affect section
404 Nationwide permits for dredged
material discharges:Ralher, it clarifies
the types of activities which we regard
as being likely to result in regulable
discharges. Where only incidental
faliback results, a regulable discharge of
dredged material does not occur, and
there is no obligation to obtain coverage
under either an individual or a
Nationwide permit. Some of the
commenteis exp’ressed concern over
lengthy permit review times under
Nationwide and individual permits; we
do not believe that the facts warrant
these concerns and have included the
most recent available statistics on
permit review time in the a i ,ni, ictrative
record for informational purposes.
although, as juSt noted, the rule does not
alter existing requirements for permit
coverage. With regard to coutmenters
raising concerns over the economic
effects of changes that have been made
in the Nationwide permit program (see
65 FR 12818), although outside the
‘scope of today’s rule, we note that the
Corps has prepared and is continuing to
work on economic documentation
related to that program.
We do not believe there is any
inconsistency in the discussion of
Tulloch losses in the proposed rule’s
preamble and the conclusion that the
rule will not have significant economic
effects. As evidenced by photos from
field visits, some of those losses were
accompanied by substantial relocation
and movement of dredged material, and
thus seam to reflect the mistakenbélief
that any excavation or drainage activity
is from regulation under CWA
section 404, regardless of the presence
of a discharge. Activities resulting In a
discharge of dredged material already
are subject to regulation under CWA
section 404 and today’s rule does not
alter this jurisdictional prerequisite.
With regard to questions concerning
consistency of our conclusion that the
rule does not have “igalficant economic
impacts even though it was submitted
for review under Executive Order
12866, we have clarified in today’s
preamble (see section IV B below) thab
this submittal is not made on the basis
o economic effects, but rather on tha
portion of that Executive Order
ajldressing, among other things. rules
which Involve legal or policy issues
arising out of legal mandates or the
President’s prionties. In light of past
litigation challenging the 1993 Tulloch
Rule and the importance of effectively
protecting our Nation’s aquatic
resources, the proposed and final rules
were submitted for review under
Executive Order 12866. Finally, with
regard to the commenter flcpressing
concern over the absence of a
grandfather provision, we have not
Included one as today’s rule still
provides for consideration of project’
specific information,, and does not
create new substantive or procedural
requirements. We thus do not believe a
grandfather provision is appropriate
4. Tubal and Federalism Issues
Several cominenters raised concerns
that the proposed rule would have
substantial direct effects on States, and,
so is subject to the “Federalism”
Executive Order 13132164 FR 43255
(August 10, 1999)). One commenter
additionally noted that the proposed
rule imposes significant comphance
costs on Tribal governments, and
therefore must comply with the
consultation reouirements of Execuuvt
Order 13064. Some commenters were
concerned specifically about the
potential information burden of
rebutting the presumption. We disagree
that today’s rule will have a substantial
direct impact on States or impose
significant compliance costs on Tribes
Today’s rule does not change CWA
section 404 program jurisdiction, nor
affect a discharger’s obligation to obtain
a section 404 permit for discharges of
dredged materiaf into waters of the US
Section 404 always has regulated the
“discharge of dredged material”
Today’s rule simply clarifies program.
expectations of what activities are likely
to result in a regulable discharge. In
addition, today’s rule does not use the
,puposal’s rebuttable presumption
formulation, and has been clarified to
expressly state it does not shift any
burden in any aA ,,i 4 n 4 trative or judicial
proceeding under the CWA.
Two commenters suggested that the
CWA section 404 Itself was
inconsistent with lederelism principles,
because It Imposed on the traditional
State area of regulating land use otis
only weakly connected to a Federal
responsibility. Such comments are

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4572 Federal Register/Vol. 66, No. 11/Wednesday, January 17, 2001 / Rules and Regulations
beyond the scope of today’s ruIpm king.
However, we do not agree th at the
section 404 program is inconsistent with
federalism principles. Controlling the
impacts of pollution and protecting
natural resources has long been a matter
of joint Federal and State concern, and
the Federal government long has
legislated in the field of environmental
pollution control and resource
protection. Section 404 does not
constitute conventional land use
plp”i”g or zoning, but instead is a form
of environmental protection and
pollution control t t leayes the
ultimate dctermination of land use to
State and local authorities consistent
with Federal pollution control
requirements. In a case involving
impacts of mining on Federal lands, the
U.S. Supreme Court expressed the
distinction this way: “Land use
planning in essence chooses particular
uses for the land; environmental
regulation, at its core, does not mandate
particular uses of the land but requires
only that, however the land is used,
damage to the environment is kept
within prescribed limits.” (Calif orraa
Coastal Commission v Graruta Rock
Co.. 480 U.S. 572. 587 (1987)). Section
404 does not dictate the particular use
for a parcel of property; It regulates the
manner in which the proposed use can
be aecomplished by avoiding and/or
mitigating the environmental impacts of
a discharge of dredged or fill material
into waters of the U.S.
One commenter argued that the
proposed rule unlawfully expanded
Constitutional limits to the Corps’
ability to protect biological resources, by
including protection of habitat with
significant biological value but little or
no commercial value. The commenter
stated that such habitat does not involve
interstate commerce, and as a result is
beyond Federal powers and should be
protected by State and local
governments. This issue is not within
the scope of today’s rulemaking and
raises questions about the definition of
“waters of the US.” which are currently
pending before the U.S. Supreme Court
in S WANNC. In addition, nothing in
today’s rule lhnits a State or local
government’s ability to protect habitat
and other resources.
One commenter suggested that
Federal regulation Is not necessary
because ample State and local authority
masts to protect wetlands. Again, this
issue is beyond the scope of today’s
rulemab’ng We disagree about the lack
of a need for a Federal presence in
wetlands regulation. The Federal
wetlands program both addresses
interstate issues 2? T g from wetlands
protection, and helps support the States’
own environmental objectives. For
example, the section 404 program helps
protect States from the effects that
filling of wetlands in one State may
have on water quality, flood control,
and wildlife in another State. States
with wetlands programs might
coordinate closely with the Federal
program, as a means of avoiding
duplication and reducing any
administrative burden. For example.
States might choose to coordinate their
environmental studies with Federal
initiatives or to use Federal expertise in
iden flcation and mapping of wetlands.
We also note that in the S WANCC case,
eight states filed an amscus brief
explaining the benefits of 404 regulation
to the states and expressing their
support for such regulation (CA, IA, ME,
NJ, OK, OR, Vl , and WA).
One commenter argued that no
Federal reason has been demonstrated
for regulating activities such as ditching
and channelization, and the proposal
should not be finalized until an
economic analysis is completed that
supports a valid Federal reason to
“expand” the Corps’ authority. Another
commenter noted that the NMA
decision has forced a number of States
to incur significant financial costs by
acting to stem further wetlands
destruction, and that limited funding
has prevented some States from
ste tping into the post-NMA loophole.
We note that today’s rule does not
regulate on the basis of ditching and
drainage activities, but instead on the
presence of a discharge of dredged
material into waters of the U.S., as
called for under the CWA. Today’s rule
does not expand the scope of CWA
section 404 program junsdiction, nor
establish a new program or new
required processes afilicting the
regulated community. For these reasons.
we do not agree that today’s rule
requires an economic analysis such as
that called for by the commenter.
We note that many Federal
environmental programs, including
CWA section 404, were designed by
Congress to be administered at the State
or Tribal level whenever possible. The
clear intent of this design is to use the
strengths of the Federal and State and
Tribal governments in a partnership to
protect public health end the Nation’s
resources. EPA has issued regulations -
governing State end Tribal assumption
of the section 404 program (40 CFR part
233). The relatianihip between EPA and
the States and Tribes under assumption
of the section 404 Program is intended
to be a partnership. With assumption,
States and Tribes assume primary
responsibility for day.to-day program
operations. EPA is to provide , nsis$oi t
environmental leadership at the
national level, develop general program
frameworks, establish standards as
required by the CWA, provide technical
support to States and Tribes in
maintaining high quality programs, and
ensure national compliance with
environmental quality standards.
Currently two States (New Jersey anti
Michigan) hay; assumed the section 404
program
One Tribal commenter felt that the
proposed rule impinges on Tribal
sovereignty, in that it does not allow
Tribal decisions to undertake ditching
activities for flood control without
Federal rev ew. This commedter also
contended that the agencies did not
comply with Executive Order 13084
which would have required that the
agencies consult with the Tribes on the
proposed rule under certain
circumstances. The commenter s afed
that the agencies’ conclusion that the
proposed rule will not significantly
effect Indian communities nor impose
significant compliance costs on Indian
Tribal jovernments is erroneous. As
mentioned above, today’s rule does not
change program jurisdiction. In
addition, it does not create any new
formal process. In fact, unlike the
proposal, the final rule does not employ
a rebuttable presumption, and also has
been clarified to expressly provide that
it does not shift any burden in any
administrative or judicial proceeding
under the CWA. We thus believe the
rule does not create an impingement to
Tribal sovereignty or significantly affect
Tribal communities
IV. Administrative Requirements
A. Paperwork Reduction Act
This action does not impose any new
information collection burden or alter or
establish new record keeping or
reporting requirements. Thus, this
action is not subject to the Paperwork
Reduction Act.
8. Executive Order 12866
Under Executive Order 12866 (58 FR
51735, October 4, 1993), we must
defravmine whether the regulatory action
is “significant” and therefore subject to
review by the Office of Management and
Budget (0MB) and the requirements of
the Executive Order. The Order defines
“significant regulatory action” as one
that is likely to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more, or
adversely affect ins material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public haalth or safety, or

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Federal Register/VoL 66. No. i l/Wednesday, January 17. 2001/Rules and Regulations
4573
State, local, or Tribal governments or
(2) Create a serious inconsistency or
otherwise Interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, pants, user fees,
or loan programs or the rights and
obligations’of recipients thereot or
(4) Raise navel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth In the Executive Order.
PurSuant to the terms of Executive
Order 12866, it bas been determined
that this rule is a “significant regulatory
action” in light of the provisions of
paragraph (4) above. As such, this action
was submitted to 0MB for review.
Changes made in response to 0MB
suggestions or recommendations are
documented in the public record.
C. Executive Order 13132 (Federalism).
Executive Order 13132, entitled
“Federalism” (64 FR 13255, August 10,
1999). requires us to develop. an
accountable process to ensure
“meaningful and timely input by State
and local officials in the development of
regulatory policies that have fedeialism
implications.” “Policies that have
federalism implications” is defined in
the Executive Order to include
regulations that have “substantial direct
effects on the States, on the relationship
between the national government and
the States. or on the distribution of
power and responsibilities among the
various levels of government.”
This nile does not have federalism
implications. As explained in sections II
and UI of today’s preamble, the rule
does not alter or enlarge section 404
program jurisdiction and therefore does
not affect a discharger’s (including State
dischargersl obligation to obtain a
section 404 permit for any discharge of
dredged material Into waters of the U.S.
Rather, the rule identifies what types of
activities era likely to give rise to an
obligation to obtain such a permit under
the definition of “ Iiehevge of dredged
material” con ed In our ndsthzg
regulations. It will lot have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Thus, Executive
Order 13132 does not apply to this rule.
D. RegulatoiyFlexzbility Act (RFA) Cs
Amended by the Small Business
Regulatorj Enforcement Fairness Act of
1996 (SBR A), 5 U.S.C. 601 ci seq.
The RFA generally requires an agency
to prepare a regulatory flexibility
analysis of any rule subject to notice-
aitd.comment rulemaking requirements
under the Administrative Procedure Act
or any other statute unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations and small
governmental junsdict&ons.
For purposes of assessing the impacts
of today’s rule on small entities, a small
entity is defined as: (1) A small business
based,on SBA size standards; (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district, or special district with a
population of less than 50,000; and (3)
a small organization that is any not.for-
profit enterpnse which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s rule on small entities,
we curtly that this action will not have
a significant economic impact on a
substantial number of small entities. As
explained in sections II and III of
todars preamble, the rule does not alter
or enlarge section 404 program
jurisdiction and therefore does not
change any discharger’s obligation to
obtain a section 404 permit for any
discharge of dredged material into
waters of the U.S. Rather, the rule
identifies what types of activities aie
likely to give rise to an obligation to
obtain such a permit under the existing
regulatory program. Moreover, we also
do not anticipate that provision of
project-specific Information that a
regulable discharge does not occur
would result in significant costs.
E. Unfunded Mandates Reform Act
Title U of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104—4, establishes requirements for
Federal agermnes to assess the effects of
their regulatory actions on State. local,
and Tribal governments and the private
sector. Under section 202 of the UI A,
EPA generally must prepare a written
statement, lnthidizmg a cost-benefit
analysis, for proposed and final rules
with “Federal mandates” that may
result in expenditures to State, local,
and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more In any one year.
Before promulgating an EPA rule for
which a written statement is needed,
section 205 of the UMB.A generally
requires EPA to identify and cotsider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensopa alternative If the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requ ren ants that may
significantly or uniquely affect small
governments, including Tribar
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potent a1ly
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
We have determined that this rule
does not contain a Federal mandate that
may result in expenditures of $100
million or more for State, local, and
Tribal governments, in the aggregate. or
the private sector in anyone year. As
explained In sections II and UI of
today’s preamble. the rule does not alter
or enlarge section 404 program
jurisdiction and therefore does not affec
a dlschargers obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the rule identifies what types of
activities are likely to give rise to an
obligation to obtain such a permit under
the definition of”discharge of dredged
material” contained in our existing
regulations. Thus. today’s rule is not
subject to the requirements of sectlcn i
202 and 205 of the UMRA. For the rame
reasons. we have determined that this
rule contains no regulatory
requirements that might signifrantly ox
uniquely affect smell governments
Thus, toaav’s rule is not subject to tk
requirements of section 203 of UMEA.
F. National Technology ‘lbonsfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advnnr nent
Act of 1995 (the NTI ’AA), Public Law
104—113, section 12(d) (15 U.S.C. 272
note), directs us to use voluntary
consensus standards in our regulatory
activities unless to do so would be

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4574 Federal Register / Vol. 66, No. lI/Wednesday, January 17, 2001 / Rules and Regulations
inconsistent with applicable law or
otherwise mpractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test niethod , sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standard bodies. The N ’I7AA directs
us to provide Congress, through 0MB,
explanations when we decide not to use
available and applicable voluntary
con ensus standards.
This rule does not involve technical
standards. Therefore, we did not
considering the use of any voluntary
consensus standards.
G. Executive Order 13045
Executive Order 13045, entltl3d
Protection of Children From
Environmental Health Risks and Safety
Risks (62 FR 19885, April 23. 1997),
applies to an rule that: (1) Was
initiated after April 21, 1997, or for
which a notice of proposed nilemalung
was published after April 21. 1998; (2)
is determined to be “economically
significant” as defined under Executive
Order 12866, and (3) concerns an
environmental health or safety risk that
we have reason to believe may have a
disproportionate effect on children. If
the regulatory action meets all three
criteria, we must evaluate the
environmental health or safety effects of
the planned nile on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives that
we considered.
This final rule is not subject to
Executive Order 13045 because it is not
an economically significant regulatory
action as defined by Executive Order
12866. As explained in sections II and
Ill of today’s preamble. jbe rule does not
alter or enlarge section 404 program
junsthction and therefore does not affect
a discharger’s ob gation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the rule identifies what types of
activities are likely to give rise to an
obligation to obtain such a permit under
- the definition of “discharge of dredged
material” contained in our existing
regulations. Furthermore, it does not
concern an environmental health or
safety risk that we have reason to
believe may have a disproportionate
effect on children.
H. Executive Order 13084
Under Executive Order 13084, we
may not issue a regulation that is not
required by statute, if it cigniflcantly or
uniquely affects the communities of
Tiwlimi Tribal governments and impases
substantial direct compliance costs on
those communities, unless the Federal
government provides th,e funds
necessary to pay the direct compliance
cost incurred by the Tribal governments.
or we consult with thpse governrnehxs.
If we comply by consulting, Executive
Order ,13084 requires us to provide the
Office of Management and Budget, in
separately identified section of the
preamble to the rule, a desoription of
the extent of our prior consultation with
representatives of affected Tribal
governments, a stimznary of the nature
of their concerns, and a statement
supporting the need to issue the
regulation. In addition, Executive Order
13684 requires us to develop an
effective process permitting elected
officials and other representatives of
Indian Tribal governments “to provide
meaningful and timely input in the
development of regulatory policies on
matters that significantly or uniquely
affect their communities.”
Today’s rule does not significantly or
uniquely affect the communities of
Indian Tribal governments, nor does it
impose significant compliance costs on
them. As explained in sections II and III
of today’s preamble, the rule does not
alter or enlarge section 404 program
jurisdiction and therefore does not affect
a discharger’s obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the rule identifies what types of
activities are likely to give rise to an
obligation to obtain such a permit under
the definition of “discharge of dredged
material” contained in our existing
regulations. Accordingly, the
requirements of section 3(b) of
Executive Order 13084 do not apply to
this rule.
L Environmental Documentation
As required by the National
Environmental Policy Act (NEPA), the
Corps prepares appropriate
environmental documentation for its
activities affecting the quality of the
human environment. The Corps has
made a determination that today’s rule
does not constitute a major Federal
action si niflcnntly affecting the quality
of the human environment, and thus
does not require the preparation of an
Environmental Impact Statement (EIS).
One commenter e tp ssed the view that
an Environmental Impact Statement
(ES) was necessary for the rule.
Howeveq, as we noted in the proposed
rule’s preamble, the Corps prepares
appropriate NEPA documents, when
required, covering specific permit
situations. The implementation of
today’s rule would not authorize anyone
(e.g.. any landowner or permit
applfr t) to perform any work
involving regulated activities in waters
of the U.S. without first seeldag and
obtaining an appropriate permit
authoriration from the Corps As
explained in sections II and Ill of
today’s preamble, the rule does not alter
or enlarge section 404 pro&rani
jurisdIction and therefore does not affect
a discharger’s obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the rule identifies what types of
activities ax likely to give rise to a n
obligation to obtain such a permit under
the definition of”disqharge of diedged
matenpl” co,ntained in our existing
regulations. Accordingly. thi CdifIt
continues to believe an EIS is not
warranted and has prepared an
environmental assessment lEA) for the
rule
J. Con gress:onoi Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the ComptroUer Gener l
of the United States. We will submit a
report containing this rule and other
required information to the U.S. Senate.
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
• is published in the Federal Register
This rule is not a “major rule” as
defined by S U.S.C. 804(2). This rule
will be effective February 16,2001.
List of Subjects -
a R Part 323
Water pollution control, Waterways
40 CFR Part 232
Environmental protection.
Intergovernmental relations, Wate ,
pollution control.
Corps of Engin za
33 CFR Chapter!]
Accordingly, qs set forth in the
preamble 33 CFR part 323 is amended
as set forth below:
PART 323—f AMBIDED)
1. The authority citation for past 323
continues to read as follows.
Anthorfty 33 U.S.C. 1344.
- 2. Amend section 3232 as follows:
a. In paragraph (d)(1) introductory
text, remove the words “paragraph

-------
(d)(2)” and add, in their place. the
words “paragraph (d)(3)”
b. Red ’esignate paragraphs (d)(2)
through (d)(5) as paragraphs (d)(3)
through (d)(6), respectively.
c. Add new paragraph (d)(2).
d. In newly redesi ated paragraph
(d)(4), in the first sentence of paragraph
(d)(4)(i) remove each time they appear
the words “paragraphs (d)(4) and (dM5)”
and add, in their place, the words
“paragraphs (d)(5) and (dM6)”, remove
paragraph (d)(4)(iii), and redesignate
paragraph (d114)(iv) as new paragraph
(d)(4)(iii).
The addition reads as follows:
1323.2 Definlbona.
* 0 0 * 0
(d) *
(2)(i) The Corps and EPA retard the
use of me hanized easth’moving
equipment to conduct landcleanng,
ditching, channelization, in-stream
mining or other earth-moving activfty in
waters of thAUnited States as resulting
in a dlscharke of dredged material
unless project-specific evidence shows
that the activity results in only
incidental failback. This paragraph (ii
does not and is not intended to shift any
burden in any administrative or judicial
proceeding under the CWA.
(ii) Fnc,dentoifoilbackis the redeposit
of small volumes of dredged material
that is incidental to excavation activity
in waters of the United States when
such material falls back to substantially
the same place as the initial removal.
Examples of incidental faliback include
soil that is disturbed when dirt is
shoveled and the back-spill that comes
.3 I
off a bucket when such small volume of
soil or dirt falls into substantially the
same place from which it was initially
removed.- -
• 0 • 0 0
Dated January 8.2001.
Joseph W. Wesiphal.
Assistant SecretatyoftheAnny(Civil Works).
Department of the Army
Environmental Protection Agency
40 CFR Chapter!
Accordingly, as set forth in the
preamble 40 R part 232 is amended
as set forth below:
PART 232—f AMENDED]
1. The authority citation fgr part 232
continues to read as follows
Anthority 33 U.S.C 1344
2. Amend section 232.2 as follows:
a. In paragraph (1) introductory text of
the definition of “Discharge of dredged
material”, remove the words “paragraph
(2)” and add, in their place, the words
“paragraph (3)”.
b. In the definition of “Discharge of
dredged material”, redesignate
paragraphs (2) through (5) as paragraphs
(3) through (6), respectively.
c. In the definition of”Dischaxge of
dredged material”, add new paragraph
(2).
d. In the first sentence of newly
redesignated paragraph 14)(i) remove
each time they appear the words
“paragraphs (4) and (5)” and add, in
their place, the words “paragraphs (5)
and (6)”. remove paragraph (4)(iii). and
redesignate paragraph (4)(iv) as new
paragraph (4)(iii).
The addition reads as follows:
§232.2 Deflnibons.
Discharge of dredged matenoi *
(2)(i) The Corps and EPA regard the
use of mechanized earth-moving
equipment to conduct landclearing,
- ditching, çhannelizataon, in-stream
mining or other earth-moving activity in
waters of the United States’a resulting
in a discharge of dredged, snaterfal’
unless project-specific evid’ence shows
that the activity results in only
‘incidental (ailback. Tuiis paragraph (i)
does not and is not intended to shift any
burden in any administrative or judic&)
proceeding under the CWA. - -
(ii) Incidental foilba ckis the redeposit
of small volumes of dredged material
that is incidental to excavation activity
in waters of the United States when
such material falls back to subsv’ tially
the same place as the initial remdi’al
Examples of incidental failback include
soil that is disturbed when dirt is
sh,oveled and the back- spill that comes
off a bucket when such small volume of
soil or dirt falls into substantially the
sIme place from which it was initially
removed.
‘0 0 * 0 0 -
Dated’ January 9, 2001
Carat M. Browner,
Administrator, EnvzmnmentalProt e t,on
Agenc3’
(FR Doc. 01—1179 Filed 1—16—01 8’45 am(
Biu.iuc coos ssso’so-p
Federal Register/Vol. 66, No. ii/W dnesday, January 17, 2001/Rules and Regulations
4575

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Page 1
261F.3d 810
52 ERC 2025, 32 Envtl. L. Rep. 20,011, 1 Cal. Daily Op. Serv. 7056,2001 Daily Journal D.A.R. 8683
(Cite as: 261 F.3d 810)
WesiHeadnâtes
United States Court of Appeals,
Ninth Circuit
BORDEN RANCH PARTNERSHIP; Angelo K.
Tsakopoulos, Plaintiffs-
Appellants,
V.
UNITED STATES ARMY CORPS OF
ENGINEERS; United States Environmental
Protection
Agency, an agency of the United States,
Defendants-Appellees
No. 00-15700.
Argued and Submitted July 9, 2001.
Filed Aug. 15. 2001
Real estate developer brought action challenging
authority ofUnited States Army Corps of Engineers and
Environmental Protection Agency (EPA) to regulate
deep ripping of wetlands, and United States filed
counterclaim seeking injunctive relief and civil
penalties for developer’s alleged violations of Clean
Water Act (CWA). After ruling that Corps had
jurisdiction over deep ripping in jurisdictional waters,
and following bench trial, the United States District
Court for the Eastern District of California, Garland E.
Burrell, J., 1999 WL 1797329 . found that developer
had repeatedly violated CWA. Developer appealed. The
Court of Appeals, Michael Daly Hawkins, Circuit
Judge, held that: (1) deep ripping can constitute the
diacharge of a pollutant into wetlands under CWA; (2)
use of bulldozers and tractors to pull large metal prongs
through soil, in deep ripping wetlands, comes within
CWA’s broad definition of”point source”; (3) recapture
provision of CWA’s farming exceptions applied to deep
ripping of wetlands so as to convert ranch land to
orchards and vineyards; (4) finding that developer
engaged in deep ripping in protected wetland swales, in
violation of CWA, was not clearly erroneous; and (5)
each individual pass of ripper through wetlands was
separate violation for which penalty could be assessed.
Affirmed in part, reversed in part, vacated in part, and
remanded.
Gould, Circuit Judge, dissented and filed a separate
opinion.
Jfl Environmental Law 175
l49Ekl 75 Most Cited Cases
(Formerly 1991c25.7(6.l) Health and Environment)
Deep ripping can constitute the discharge of a pollutant
into wetlands, under the Clean Water Act (CWA), even
though it simply churns up soil that is already there,
placing it back basically where it came from. Federal
Water Pollution Control Act Amendments of 1972, §
301(a), 502(6, 12, 14), as amended, 33 U.S.C.A. 6
1311(al, 1362(6. 12. 14) .
J J Environmental Law 175
l49Ek1 75 Most Cited Cases
(Formerly l99k25.7(6.l) Health and Environment)
Use of bulldozers and tractors to pull large metal
prongs through soil, n deep r ping wetlands. comes
within Clean Water Act’s (CWA1 broad definition of
“point source.” Federal Water Pollution Control Act
Amendments of 1972, § 502(14), as amended,
U.S.C.A. 61362(14) .
j J Environmental Law 137 -
I49Ek1 37 Most Cited Cases
(Formerly 199k25.7(13. 1) Health and Environment)
Recapture provision of farming exceptions to Clean
Water Act (CWA), which required permit for discharge
incidental to activity designed to bring area of
navigable waters into new use, applied to deep ripping
of wetlands so as to convert ranch land to orchards and
vineyards, in that such activity brought property into
use to which it was ijot previously subject and
corresponding destruction of soil layer impaired flow of
nearby navigable waters. Federal Water Pollution
Control Act Amendments of 1972, § 404(f)(1)(A), (2),
as amended, 33 U.S.C.A. 6 1344(0(11(A). 12 )
1 1 Environmental Law 137
l49Ekl 37 Most Cited Cases
(Formerly l99k25.7(13.l) Health and Environment)
Even normal plowing can be regulated under the Clean
Water Act (CWA) if it falls within recapture provision
of CWA farming exceptions requiring permit for
discharge into navigable waters incidental to activity
designed to bring area of navigable waters into use to
which was not previously subject Federal Water
Pollution Control Act Amendments of 1972, §
404(0(2), as amended, 33 U.S.C.A. 6 1344(0(2) .

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Page 2
j j Federal Courts 85I
1 70Bk85 I Most Cited Cases
flQJ Environmental Law 145
l49EkI45 Most Cited Cases
(Formerly 149Ek7O2, 199k25.7(24)
Environment)
I 1 Environmental Law E I35
149Ekl35 Most Cited Cases
limit penalties to number of days in which violations
occurred. Federal Water Pollution Control Act
Amendments of 1972, § 309(d), as amended, 33
(Formerly 199k25.7(13.i) Health and Environment)
Although, under Clean Water Act (CWA), United
U.S.C.A. 1319(d)
States Anny Corps of Engineers cannot regulate a
farmer who desires merely to change from one wetland
crop to another, activities that require substantial
•
Health and
hydrological alterations require a permit. Federal
Water Pollution Control Act Amendments of 1972, §
404(1)( I )(A), (2), as amended, 33 U.S.C.A.
1344(fl(l )(A). (2).
- -
j Federal Courts 855.1
•
Calculation of penalty for developer’s deep ripping of
wetlands, in violation of Clean Water Act (CWA), was
not abuse of discretion, notwithstanding developer’s
claim that penalty was significantly disproportionate to
I 70Bk855. I Most Cited Cases
penalty imposed in settlement of another deep ripping
case; developer, who knowingly assumed risk that
District court’s factual findings of violations of the
litigation would result in judgment more unfavorable
Clean Water Act (CWA) are reviewed for clear error. -
than he might have attained through settlement, could
Clean Air Act, § 101 et seq., as amended, 42 U.S.C.A.
not be heard to complaint that penalty should have been
7401 et seq. . .
assessed, as if he had effled case, and statute required
case-by-case evaluations. Fedcral Water Pollution
ifi Environmental Law 150
Control Act Amendments of 1972, § 309, as amended.
l49Ekl50 Most Cited Cases
33 U.S.C.A. 1319.
*812 Arthur F. Coon (argued) and Edmund L. Regalia
(Formerly 1 99k25. 15(5.1) Health and Environment)
(argued), Miller, Starr & Regalia, Walnut Creek,
Finding, following four-week bench trial, that developer
California, for the plaintiffs-appellants.
engaged in deep npjiing in protected wetland swales. in
.
violation of Clean Water Act (CWA), was not clearly
Sylvia Ouast (argued), U.S. Department of Justice,
erroneous where district court cited documentary .
Environment and Natural Resources Division,
evidence and eyewitness testimony of deep ripping and
Washington, D.C., for the defendants-appellees.
developer’s own concession that “mistakes had been
-
made,” and also relied on on-site soil studies. Federal
Appeal from the Umted States District Court for the
Water Pollution Control Act Amendments of 1972, §
30 1(a), as amended, 33 U.S C.A. 1311 Ia )
Eastern District of California Garland E. Burrell,
District Judge, Presiding. D.C. No. CV-97-00858- GEB
(JFM).
Before: CANBY, HAWKINS, and GOULD, Circuit
When there are two permissible views of the evidence,
Judges.
the factfmder’s choice between them cannot be “clearly
erroneous.” . ..
J j Environmental Law 145
l49Ekl45 Most Cited Cases
(Formerly l49Ek702, 199k25.7(24) Health and
.
MICHAEL DALY HAWKINS, Circuit Judge:
This appeal concerns the authority of the U.S. Army
Environment)
Corps of Engineers ( the Corps”) and the
Environmental Protection Agency (“EPA”) over a form
For purposes of calculating penalty under Clean Water
of agricultural activity called “deep ripping” when it
Act (CWA) for developer’s deep ripping of protected
occurs in wetlands. We conclude that the Clean Water
wetland swales, each individual pass of ripper through
Act applies to this activity and afFirm the district cowl’s
wetlands was separate violation for which penalty could
findings that Borden Ranch violated the Act by deep
be assessed, notwithstanding developer’s claim that
ripping in protected wetland swales. We reverse the
statute providing for maximum penalty of”$25,000 per
day for each violation” meant that he could only be
assessed $25,000 for any day in which violations
occurred, regardless of total number of nppings that
day; statute’s focus was on each violation, and did not
district court’s findings of liability with respect to
isolated vernal pools in light of Solid Waste Avencv of
N. Cook County v. United States Army Corns of EnE’rs.
531 U.S. 159. 121 S.Ct. 675. 148 L.Ed.2d 576(2001),
and remand for a recalculation of the civil penalties.

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Page 3
Facts and Procedural Background
In June of 1993, Angelo Tsakopoulos, a Sacramento
real estate developer, purchased Borden Ranch, an
8400 acre ranch located in California’s Central Valley.
Prior to Tsakopotilos’s purchase, the relevant areas of
the ranch had been used primarily as rangeland for
cattle grazing. The ranch contains significant
hydrological features including vernal pools, swales,
and intermittent drainages. Vernal pools are pools that
form during the rainy season, but are often dry in the
summer. Swales are sloped wetlands that allow for the
movement of aquatic plant and animal life, and that
filter water flows and minimize erosion. Intermittent
drainages are streams that transport water during and
after rains. All of these hydrological features depend
upon a dense layer of soil, called a “restrictive layer” or
“clay pan,” which prevents surface water from
penetrating deeply into the soil.
Tsakopoulos intended to convert the ranch into
vmevards and orchards and subdivide it into smaller
parcels for sale. Vineyards and orchards, however,
require deep root systems, much deeper than’ thee
restrictive layer, in the relevant portions of Borden
Ranch permitted. For vineyards and orchards to grow
on this land. the restrictive layer of soil would first need
to be penetrated. This requires a procedure known as
“deep ripping.” in which four- to seven-foot long metal
prongs are dragged through the soil behind a tractor or
a bulldozer. The ripper gouges through the restrictive
layer, disgorging soil that is then dragged behind the
ripper
Under the Clean Water Act, an individual seeking to
fill protected wetlands must first obtain a permit from
the Corps. Since 1993, Tsakopoulos and the Corps
have disagreed about the Corps’ authority to regulate
deep ripping in wetlands. Tsakopoulos initiated deep
ripping without a permit in the fall of 1993, and the
Corps granted him a retrospective permit in the spring
of 1994, when Tsakopoulos agreed to various
mitigation requirements. In the fall of 1994, the Corps
and the EPA informed Tsakopoulos that he could deep
rip in uplands and that he could drive over swales with
the deep ripper in its uppermost position, but that he
could not conduct any deep ripping activity in vernal
*813 pools. The next spring, the Corps discovered that
deep ripping had occurred in protected wetlands and
promptly issued a cease and desist order. From July
1995 through November 1995, Tsakopoulos again
initiated deep ripping on various parcels of land without
a permit. The Corps concluded that more protected
wetlands had been ripped and again issued a cease and
desist order.
In May of 1996, the Corps and the EPA entered into an
Administrative Order on Consent with Tsakopoulos that
was intended to resolve his alleged Clean Water Act
violations. Under the agreement, Tsakopoulos set
aside a 1368-acre preserve and agreed to refrain fro r
further violations.
In December of 1996, the Corps and the EPA issued a
regulatory guidance letter that distinguished deep
ripping from normal plowing activity. The letter stated
that deep-ripping in wetlands “destroy [ s] the
hydrological integrity of these wetlands” and therefore
“requires a permit under the Clean Water Act.” FFN?’
j,, In the district court, Tsakopoulos argued
that this letter was invalid. The district court
found that “it is unclear whether the regulatory
guidance letter has actually been applied to
Plaintiffs. Therefore decision is reached
without reference to it.” The district court
also found that “any as-applied challenge to
the regulations that might also in lude a
challenge to the application of the [ regulatory
gii’idance letter) is not ripe.”
On appeal, Tsakopoulos again challenges the
regulatory guidance letter, arguing for the fir t
time that the letter is a substantive rule that
required notice-and-comment rule making.
Since this new argument was not presented to
the district court, we decline to consider it on
appeal. See Nelson v. City of Irvine, 143 F.3d
1196, 1205-06(9th Cir.1998 .
In March of 1997 the Corps concluded that
Tsakopoulos had continued to deep rip wetlands
without permission. That April, EPA investigators
visited the ranch and observed fully engaged deep
rippers passing over jurisdictional wetlands. EPA then
issued an Administrative Order to Tsakopoulos.
0
Tsakopoulos responded by filing this lawsuit,
challenging the authority of the Corps and the EPA to
regulate deep ripping. The United States filed a
counterclaim seeking injunctive relief and civil
penalties for Tsakopoulos’s alleged violations of the
Clean Water Act.
Both parties filed motions for summary judgment.
The district court ruled that the Corps has jurisdiction
over deep ripping injurisdictional waters. However, the
court found disputed facts with respect to whether such
deep ripping had actually occurred. These facts were
litigated in a bench trial that began on August 24,1999,
and concluded on September 16, 1999. The district
court heard evidence from over twenty witnesses and

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Page 4
received hundreds of documentary exhibits.
The district court subsequently entered findings of fact
and conclusions of law determining that Tsakopoulos
had repeatedly violated the Clean Water Act. The court
found 348 separate deep ripping violations in 29
drainages, and 10 violations in a single vernal pool.
The district court gave Tsakopoulos the option of
paying a $1.5 million penalty or paying $500,000 and
restoring four acres of wetlands. Tsakopoulos chose
the latter option. After denying a motion for more
specific findings pf fact, the district court entered its
final order in favor of the Umted States.
Tsakopoulos then brought this timely appeal. We
have jurisdiction under 28 U.S.C. 1291 .
Analysis
I. Corps Jurisdiction over Deep Ripping
The Clean Water 1 ct prohibits “the discharge of any
pollutant” into the nation’s *814 waters. 33 U.s C.
1311(a) . The nation’s waters have been interpreted to
include wetlands adjacent to navigable waters. . See
United Stales v. Riverside Bavview Homes. Inc. 474
U.S. 121. 133-35. 106 S.Ct. 455. 88 L.Ed.2d 419
( 1985) . The Act defines discharge as “any addition of
any pollutant to navigable waters from any point
source.” 33 U.S.C. 1362(12) . Apomtsource is “ans
discernible, confined and discrete conveyance ... from
which pollutants are or may be discharged.” 33 U.S.C
1362(14) . A pollutant is defined, inter aba, as
“dredged spoil, ... biological materials, ... rock, sand,
[ and] cellar dirt.” 33 U.S.C. 1362(6) . It is unlawful to
discharge pollutants into wetlands without a permit
from the Anny Corps of Engineers. 33 U.S.C.
I 344(a)fd ) .
A. Discharge of a Pollutant
Tsakopoulos initially contends that deep ripping cannot
constitute the “addition” of a “pollutant” into wetlands,
because it simply churns up soil that is already there,
placing it back basically where it came from. l’his
argument is inconsistent with Ninth Circuit precedent
and with case law from other circuits that squarely hold
that redeposits of materials can constitute an “addition
of a pollutant” under the Clean Water Act. Rvbachek
United Staies Envil Prot Afencv, 904 F.2d 1276 (9th
Cir.1990) , considered a claim that placer mining
activities were exempt from the Act. We held that
removing material from a stream bed, sifting out the
gold, and returning the material to the stream bed was
an “addition” of a “pollutant.” Id. at 1285 . The term
“pollutant” encompassed “the materials segregated from
gold in placer mining.”
Our reasoning in Rybacliek is similar to that of the
Fourth Circuit in United States v. Deaton. 209 F.3d
331 (4th Cir.2000) . In Deaton . a property owner
alleged that the Corps could not regulate “sidecasting,”
which is “the deposit of dredged or excavated matenal
from a wetland back into that same wetland.” /d.at
j The property owner asserted that “sidecasting
results in no net increase in the amount of material
present in the wetland” and therefore could not
constitute the “addition of a pollutant.” Id. at 335 . The
Fourth Circuit squarely rejected this argument, in
language that is worth quoting in full:
Contrary to what the Deatons suggest, the statute
does not prohibit the addition of material; it prohibits
the “addition of any pollutant.” The idea that there
could be an addition of a pollutant without an
addition of material seems to us entirely
unremarkable, at least when an activity transforms
some material froma nonpollulant into a pollutant, as
occurred here.... Once earth and vegetable n tter)
was removed [ from the wetland], that material
became “dredged spoil,” a statutory pollutant and a
type of inatenal that up until then was not present on
the Deaton property. It is of no consequence that
what is now dredged spoil was previously present on
the same property in the less threatening form of dirt
and vegetation in an undisturbed state. What is
important is that once that material was excavated
from the wetland, its redeposit in that same wetland
added a pollutant where noiiè had been before.
Id at 335-36 . As the court concluded, “Congress
determined that plain dirt, once excavated from waters
of the United States, could not be redepositea into those
waters without causing harm to the environment.” hL
at 336 see also Avovelles Sportsmen’s Leaeue. Inc v
Marsh. 715 F.2d 897.923(5th Cir.l983 ) (holding that
the word “addition” may be reasonably understood to
include “redeposit”).
11.1 These cases recognize that activities that destroy
the ecology ofa wetland are not immune from the Clean ,
Water Act *815 merely because they do not involve the
mtroduction of material brought in from somewhere
else. In this case, the Corps alleges that Tsakopoulos
has essentially poked a hole in the bottom of protected
wetlands. That is, by ripping up the bottom layer of
soil, the water that was trapped can now drain out.
While it is true, that in so doing, no new material has
been “added,” a “pollutant” has certainly been “added.”
Prior to the deep ripping, the protective layer of soil
was intact, holding the wetland in place. Afterwards,
that soil was wrenched up, moved around, and
redeposited somewhere else. We can see no
meaningful distinction between this activity and the
activities at issue in Rybachek and Deaton . We
therefore conclude that deep ripping, when undertaken
in the context at issue here, can constitute a discharge of

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Page 5
a pollutant under the Clean Water Act. FFN21
FN2. National Mininf Assoc. v. U.S. Army
Corps of En ’rs. 145 F.3d 1399
( D.C.Cir.1998) . upon which Tsakopoulos
heavily relies, does not persuade us to the
contrary. That case distinguished “regulable
redeposits” from “incidental fallback.” kj_gj
1405 . Here, the deep ripping does not
involve mere incidental fallback, but
constitutes environmental damage sufficient to
constitute a regulable redeposit.
j .j Tsakopoulos also contends that no case has ever
held a plow to be a point source, and that a prohibited
discharge must be from a point source. This argument
has no merit. The statutory definition of”point source 8
(“any discernible, confined, and discrete conveyance”)
is extremely broad, 33 U.S.C. 6 1362(14) , and courts
have found that “bulldozers and backhoes” can
constitute “point sources,” Avovelles. 715 F.2d at 922
In this case, bulldozers and tractors were used to pull
large metal prongs through the soil. We ëan think of no
reason why this combination woLild not satisfy the
definition of a “point source
B. The Normal Farming Exception
131(41 Tsakopoulos next contends. that even if deep
ripping constitutes a discharge of pollutants, it is
nonetheless exempt from regulation under the “farming
exceptions,” which state that discharges “from normal
farming ... and ranchiiig activities, such as plowing” are
not subject to the Clean Water Act. 33 U.S.C. 6
I 344(fl( 11(A) . The section of the statute containing
the farming exceptions, however, includes a significant
qualifying provision:
Any discharge of dredged or fill material into the
navigable waters incidental to any activity having as
its purpose bringing an area of the navigable waters
into a use to which it was not previously subject,
where the flow or circulation of navigable waters may
be impaired or the reach of such waters be reduced,
shall be required to have a permit under this section.
33 U.S.C. 6 1344(fl(2 ) . Thus, even normal plowing
can be regulated under the Clean Water Act if it falls
under this so-called “recapture” provision. See
A vovelles. 715 F.2d at 925 (noting that 61 344(f )(2 ) can
preclude the normal farming exceptions).
We conclude that the deep ripping at issue in this case
is governed by the recapture provision. Converting
ratich land to orchards and vineyards is clearly bringing
the land “into a use to which it was not previously
-subject,” and there is a lear basisin this record to
conclude that the destruction of the soil layer at issue
here constitutes an impairment of the flow of nearby
navigable waters.
j Although the Corps cannot regulate a fanner who
desires “merely to change from one wetland crop to
another,” activities that require “substantial
hydrological alterations” require a permit. *816 United
Slates v. Akers. 785 F.2d 814. 820(9th Cir.l986 ) . As
we have explained, “the intent of Congress in enacting
the Act was to prevent conversion of wetlands to dry
lands,” and we have classified “as non-exempt those
activities which change a wetland’s hydrological
regime.” Akers. 785 F.2d at 822 . In this case,
Tsakopoulos’s activities were not intended simply to
substitute one wetland crop for another; rather they
radically altered the hydrological regime of the
protected wetlands. Accordingly, it was entirely
proper for the Corps and the EPA to exercise
jurisdiction over Tsakopoulos’s activjties.
H. The Vernal Pool
The di tnct court found Clean Water Act violations in
one isolated vernal pool on Tsakopoulos’s property.
Earlier this year, the Supreme Court ruled in , gjjçj
Waste that the Corps’ rule extending the definition of
“navigable waters” under the Clean Water Act to
include intrastate waters used as habitat for migratory
birds exceeds the authority granted to the Cô’rps under
the Clean Water Act. The government now concedes
that Solid Waste precludes Corps’ authority over the
vernal pooi in dispute and has formally withdrawn its
enforcement claim with respect to the pool We
accordingly reverse the district court’s findings ofClean
Water Act violations in the vernal pool.
III. The District Court’s Factual Findings
161171 Tsakopoulos challenges the district couri s
factual findings of violations of the Clean Water Act.
We review for clear error. Ambassador Hotel Co. v.
Wei-Chuan liw.. 189 F.3d 1017. 1024 (9th Cir. 1999) .
Tsakopoulos argues that “there was no substantial
evidence at all” to support the court’s factual findings of
deep ripping in protected swales. He argues that the
evidence can only demonstrate shallow ripping
consistent with the ripper in its uppermost position,
which was permitted under the government’s direction.
j j “Where there are two permissible views of the
evidence, the factflnder’s choice between them cannot
be clearly erroneous.”. Cree v. FloreL 157 F.3d 762.
768 (9th Cir.1998) . The district court here held a
four-week bench trial, examined numerous exhibits, and
heard bver t renty witnesses. There is ample evidence

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Page 6
to support the district court’s findings. The court cited
documentary evidence showing deep ripping,
eyewitness testimony of deep ripping on the property,
and Tsakopoulos’s own concession that “mistakes had
been made.” The court also relied on the studies of Dr.
Lyndon Lee, who conducted extensive investigations at
the site. Dr. Lee was able to dig soil pits as far as thirty
inches into the soil. By examining the composition of
the soil in these pits, Dr. Lee could determine whether
the underlying clay layer had been ripped up, consistent
with deep ripping. The district court chose to credit
this evidence that deep ripping had occurred, and we
can find no clear error on this reco d.
IV. The Civil Penalty
The district court found that Tsakopoulos had
committed 358 violations of the Clean Water Act. It
counted each pass of the ripper through a protected
wetland as a separate violation. The statute provid.es
for a maximum penalty of “$25,000 per day for each
violation.” 33 U.S.C. 1319 . Thestatutorymaximumn
penalty was therefore 58,950.000. The court then
considered a variety of factors in setting the penalty.
The court found that Tsakopoulos “risked damaging
rare federal wetlands because of his motivation to reap
economic gain.” The court also found an “absence of
a good faith attempt to comply with the Act.” The court
accordingly set the penalty *817 at $1,500,000, which
is $7,450,000 below the statutory maximum. The court
also allowed Tsakopoulos to suspend $1,000,000 of the
penalty if he performed various restoration measures.
Tsakopoulos now makes three challenges to the district
court’s calculation of the civil penalty. We conclude
that nonç of these arguments has merit.
A. Penalty Calculation per Violation
121 Tsakopoulos first contends that the penalty should
have been based on the number of days in which illegal
ripping occurred, not on the number of individual
passes with the ripper. He argues that the statutory
language “per day for each violation” means that he can
only be assessed $25,000 for any day in which ripping
violations occurred, regardless of the total number of
rippings in that day.
We disagree. The statute imposes a maximum penalty
“per day for each violation.” 33 U.S.C. 6 1319(d) . It
does not say “per each day in which violations occur”
or “per day in which a party pollutes.” The focus is
clearly on each violation, and courts have consistently
rejected attempts to limit civil penalties to the number
of days in which violations occur. A contrary rule
would encourage individuals to stack all their violations
into one “Pollution Day,” in which innumerable
offenses could occur, subject only to the $25,000
maximunt
Tsakopoulos relies most heavily on Chesapeake Bay
Found.. Inc v. Gwaltnev of Smithfield. Ltd., 791 F.2d
304 (4th Cir.l986) , vacated, 484 U.S. 49. 108 S.Ct.
376. 98 L.Ed.2d 306 (1987) . In Gwaltnev . the court
considered a case of continuous violations of monthly
permits. The violator argued that a monthly violation
should be treated as a single day of violation. Id.at
Jj The court disagreed, concluding “where a
violation isdefined in terms of a time period longer than
a day, the maximum penalty assessable for that
violation should be defined in terms of the number of
days in that time period.” Id. at 314 . The court
explicitly declined to reach the very different question
of “whether multiple violations attributable to a single
day may give nse to a maximum penalty in excess of
[ the penalty amount] for that day.” Id. at 308 .
This question was addressed in Atlantic Stales LeRal
Found. Inc v. Tyson Foods. Inc.. 897 F.2d 1128 ( 11th
Cir. I 990 . The court found that the statutory provision
was “not a model of clarity,” but nonetheless found that
it was “capable of only a single reasonable
interpretation: the daily maximum penalty applies
separately to each violation of an express limitation.”
Id at 1137. 1138 . The court stated that “each
excessive discharge of a pollutant on a given day will
subject the polluter to a $25,000 maximum fine.” L4 , t
1139 . This interpretation was consistent with the
legislative history, which stated that the provision was
intended “to clarify that each distinct violation is
subject to a separate daily penalty assessment.” IiL
(citation omitted). -
The Fourth Circuit adopted similar reasoning in United
States v. Smithfield Foods. Inc. 191 F.3d 516.528(4th
Cir. 1999’) . The court noted the serious incentive
problems of a contrary ruling: “ [ I]f the maximum
penalty that could be levied against a violator on a
single day was $25,000, no matter how many different
Permit effluent limitations were violated, the permittee
would have a strong disincentive to comply with the
other pemut limitations.” Id. at 52 7-28 . Accordingly,
the court treated each permit violation “as a separate
and distinct infraction for purposes of penalty
calculation.” id. at 528 .
We recognize that these cases do not precisely resolve
the problem at issue here. These cases are concerned
with *818 emission of different types of pollutants in
violation of different permits. This case is about
repeated filling of wetlands without a permit. Here, the
landowner committed the same unlawftil act repeatedly.
Tsakopoulos argues that treating each rip as a separate
violation could lead to nonsensical results in other

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cases. For example, a polluter who emitted 25,000
gallons of a pollutant into a stream continuously over
the course of a day would be subject to a $25,000
maximum penalty, whereas a polluter who made three
separate discharges of one gallon each would be subject
to a $75,000 maximum penalty.
Tsakopoulos’s position, however, also leads to
irrational results. The incentive problems at issue in
Smithfield are equally strong here. Once a wetland
violation has occurred in part of a swale, Tsakopoulos’s
proposed rule would allow the landowner to rip away at
the rest of the swale with impunity from that point
forward, because no additional penalty could be
imposed.
Although neither approach is free from difficulty. we
believe the better rule is to treat each np as a separate
violation. This approach is more consistent with the
statutory language, with pnorjudicial interpretations of
the statute,and with the general policy goal of
discouraging pollution. Tsakopoulos’s concern about
the disparate Lre trnent of the polluter who emits several
small amounts and the serial, continuous polluter is not
without remedy in the district courts. The district
courts have substantial discretion in imposing penalties,
and, as the Gwalrnev court pointed out in response to a
similar argument, the district court “could ... impose a
substantially smaller penalty on [ the] hypothetical
polluter than on Ithe larger polluter].” 791 F.2d at 315 .
In sum, we conclude that the district court correctly
included each pass of the ripper as a separate violation.
A limited remand for recalculation of the penalty is
nonetheless in order. The district court included 10
passes through the vernal pool in its total of 358
violations. Since the government now concedes that it
lacks jurisdiction over these violations, we remand to
the district court to determine what, if any, reduction in
the penalty is appropriate. -
B. The Simpson Timber Consent Decree
1 .121 Tsakopoulos argues that the penalty imposed here
is signiflnantly disproporlionate to the p ialtyiznposcd
in the settlement of violations by the Simpson Timber
Company, which deep ripped 987 acres, but was subject
only to a $30,000 penalty and a restoration order. By
contrast, Tsakopoulos committed violations on only two
acres. The district court found that the Simpson
Timber consent decree had no relevance to the
determination of the civil penalty here, because consent
decrees are different from judgments reached after
extensive litigation and because that decree imposed
significant restoration requirements.
Page 7
Tsakopoulos knowingly assumed the risk that litigation
would result in a judgment more unfavorable than he
might have attained through settlement. Having
assumed that risk, Tsakopoulos cannot now be heard to
complain that his penalty should have been assessed as
if he had settled the case. In any event, the statute
directs that these disputes be evaluated on a
case-by-case basis. Since we know almost nothing
about the facts of the Simpson Timber dispute, it is
impossible to conclude that the district courrs careful
analysis of the penalty issue on the facts of this case
was an abuse of discretion.
C. Further Reductions in Penally
Tsakopoulos finally argues that th district court
should have reduced the penalty *819 further because
of Tsakopoulos’s good faith, the trivial nature of the
violations, and the supposed uncertainty concerning the
government’s regulatory authority. The district court
considered these arguments when setting the penalty (a
penalty that was significantly lower than the statutory
maximum). None of Tsakopoulos’s arguments nses to
the level necessary to demonstrate an abuse of
discretion by the district court.
Conclusion
We affirm the district court’s holding that deep ripping
in this context is subject to the jurisdiction of the Corps
and the EPA. We also affirm the district court’s factual
findmgs except with respect to the vernal pools. We
remand for a recalculation of the civil penalties
Finally, we deny Tsakopoulos’s request that this case be
assigned to a different district judge on reniand
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED. Costs
on appeal to appellees.
GOULD , Circuit Judge, dissenting:
I respectfully dissent. The crux of this case is that a
fanner IFN1I has plowed deeply to improve his farm
properly to permit farming of fruit crops that require
deep root systems, and are more profitable than grazing
or other prior farmuse. Farmers have been altering
and transforming their crop land from the beginning of
our nation, and indeed in colonial times. Although I
have no doubt that Congress could have reached and
regulated the famiing activity challenged, that does nut
in itself show that Congress so exercised its power. I
conclude that the Clean Water Act does not prohibit
“deep ripping” in this setting.
The district court did not abuse its discretion.

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Page 8
C iL Appellant, Angelo Tsakopoulos, is
referred to by the majority as a “real estate
developer.” As the owner of Borden Ranch,
which apparently engaged in both farming and
ranching activities, it seems to me correct to
refer to him as a farmer or a rancher, in
addition to being a developer. Whether
viewed as a farmer, rancher, or developer, his
riehis as a citizen are the same. Because the
challenged activities in this case anse on land
previously used for rangeland for cattle
grazing, and his deep ripping was converting
the land for orchard and vineyard farming, I
consider him as a farmer and rancher, and the
issues raised by his position in this litigation
may impact farmers and ranchers regardless of
whether they plan to sell portions of improved
land.
I would follow and extend National MinInR
Association v. US. Army Corps ofEn2vleers. 145 F.3d
1399 ( D.C.Cir. I 991) , and hold that the return of soil in
place after deep plowing, is not a “discharge of a
pollutant.” In National M,nin . the court held that the
Corps exceeded its authority under section 404 of the
Clean Water Act by regulating the redeposit of dredged
materials that incidentally fall back in the course of
dredging operations. The court explained that “the
straightforward statutory term ‘addition’ cannot
reasonably be said to encompass the situation in which
material is removed from the waters of the United
States and a small portion of it happens to fall back.”
Id at 1404 . The court rejected the agencies’ primary
argument that incidental faliback constitutes an
“addition” because once dredged the material becomes
a pollutant:
Regardless of any legal metamorphosis that may
occur at the moment of dredging, we fail to see how
there can be an addition of dredged material when
there is no addition of material. Although the Act
includes “dredged spoil” in its list of pollutants,
Congress could not have contemplated that the
attempted removal of 100 tons of that substance
could constitute *820 an addition simply because
only 99 tons of it were actually taken away.
Id at 1404 (emphasis omitted).
Those considerations are persuasive here as deep
ripping does not involve any significant removal or
“addition” of material to the site. The ground is
plowed and transformed. It is Lrue thd the
hydrological regime is modified, but Congress spoke in
terms of discharge or addition of pollutants, not in
terms of change of the hydrological nature of the soil.
If Congress intends to prohibit so natural a farm
activity as plowing, and even the deep plowing that
occurred here, Congress can and should be explicit.
Although we interpret the prohibitions of the Clean
Water Act to effectuate Congressionalintent, it is an
undue stretch for us, absent a more clear directive from
Congress, to reach and prohibit the plowing done here,
which seems to be a traditional form of fanning activity.
Rvbachek v. United States Environmental Protection
Apencv. 904 F.2d 1276 (9th Cir. I 990 , in my view, is
distinguishable. In Rybachek . we held that placer
mining, “a process in which miners excavate dirt and
gravel in and around waterways and, after extracting the
gold, discharge the leftover material back into the
water,” fell within the scope of section 404 of the Clean
Water Act. Id. at 1285 . There, the Rybachek court
identified the regulable discharge as the discrete act of
dumping leftover material into the stream after it had
been processed. Id. As the concurrence m National
Mining makes clear, however, “the word addition
carries both a temporal and geographic ambiguity. If
the material that would otherwise fall back were moved
some distance away and then dropped, it very well
might constitute an ‘addition.’ Or if it were held for
some time and then dropped back in the same spot. it
might also constitute an ‘addition.’” National MznlnR.
145 F.3d at 1410 (Silberman, J., concurring). Because
deep npping does not move any material to a
substantially different geographic location and does not
process such material for any period of time, Rybachek
is not controlling.
Nor is the Fourth Circuit’s opinion in United Stares v
Deaton, 209 F.3d 331 (4th Cir.2000) , relied on by the
majority, persuasive to me in the context presented. A
farmer who plows deeply is not, in my view,
redepositing dredged or excavated materials. While
the Fourth Circuit relied on the fact that a “dredged
spoil” is a statutory pollutant, the deep plowing activity
here, in my view, is not the same as dredging dirt from
and redepositing it in waters.
Also, even assuming that deep ripping can be viewed
as a discharge of a pollutant into navigable waters, it
seems at first consideration exempt as a normal farming
activity. The Clean Water Act exempts normal
farming activity, including plowing. See 33 U.S.C. 6
I 344(f)( I ) (A) . The exemption as cast by Congress is
not limited to shallow plowing, but would appear
literally to cover the deep plowing technique referred to
as deep ripping.
This exemption, however, does not apply by its tcuns
to “any activity having as its purpose bringing an area
of the navigable waters into a use to which it was not
previously subject.” See 33 U.S.C. 6 1344(fl(2 .
Moreover, the Corps of Engineers, by regulation, has
provided explicitly that the plowing exemption does not

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Page 9
include “redistribution of soil, rock, sand, or other
surficial materials in a manner which changes any area
of the waters of the United States to dry land.” 33
C.F.R. 323.4(a)(l)(iii)(D ) . The Corp’s regulation,.
which we upheld in United States v. Akers. 785 F.2d
814. 819-20 (9th Cir.l986) , must be read consistent’
with the statute’s terms. Although this limitation
defeats the exemption for any deep ripping that had the
purpose of transforming land, it *821 does not, in my
view, defeat the exemption as to any unintended
imairinent. Most violations found by the district court
involved a purposeflul attempt to transform th,e land.
But some of the transgressions (indentations in swales
caused by moving the kleep ripper to different locations)
found by he district court here were apparentl)
unintentional, or at least there was no finding by th e
district court ofpurposefiil modification as to all of the
violations.
I would hold that the district court erred in finding that
the activities here required a permit and otherwise
violated the Clean WaSter Act. The problem of
interpretation here arises because Congress prohibited
the discharge or addition of any pollutant to navigable
waters from any point source. It did not literally
prohibit any conduct by farmers or ranchers that
changes the hydrological character of their land The
majority opinion, motivated perhaps by the purposes of
the statute, makes new law by conèluding that a plow is
a point source and that deep ripping includes discharge
of pollutants into protected waters. The policy
decision involved here should be made by Congress,
which has the ability to study and the power to make
such fine distinctions. I understand how the majority
reaches its position based on Rybachek . and
incremental judicial reasoning. Notwithstanding, the
judicial determination that a deep plowing technique
constitutes a pollution of navigable waters, with no
prior adequate guidance from Congress, goes beyond
mere statutory interpretation. It would be preferable
for the pubhc, the regulators, and us were Congress ;o’
speak explicitly on the subjects of what normal fa?ming
or ranching activities may include discharge of
pollutants and require permits under the Clean Water
Act, and whether it wishes to exempt any such activities
and upon what terms. The alternatives are an agency
power too unbounded or judicial law-making, which is
worse. I respectfully dissent.
261 F.3d 810,52 ERC 2025,32 Envtl. L. Rep. 20,011,
1 Cal. Daily Op. Serv. 7056,2001 Daily Journal D.A.R.
8683
END OF DOCUMENT

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2

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DEPARTMENT OF DEFENSE
Department of the Army
Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY
4OCFRParts 110, 112, 116, 117, 122,230,232, 300, and4Ol
FRL__
RIN 2040-AB74
Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of
“Waters of the United States”
AGENCIES: U.S. Army Corps of Engineers, Department of the Anny, DOD; and Environmental
Protection Agency
ACTION: Advance Notice of Proposed Rulemaking
SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental Protection
—1—

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Agency (EPA) are today issuing an advance notice of proposed rulemaking (ANPRM) in order to
obtain early comment on issues associated with the scope of waters that are subject to the Clean
Water Act (CWA), in light of the U.S. Supreme Court decision in Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers , 531 U.S. 159 (2001) ( SWANCC) .
Today’s ANPRM requests public input on issues associated with the definition of “waters
of the I Jnited States” and also solicits information or data from the general public, the scientific
community, and Federal and State resource agencies on the implications of the SWANCC
decision for jurisdictional decisions under the CWA. The goal of the agencies is to develop
proposed regulations that will further the public interest by clarifying what waters are subject to
CWA jurisdiction and affording full protection to these waters through an appropriate focus of
Federal and State resources consistent with the CWA. The input received from the public in
response to today’s ANPRM will be used by the agencies to determine the issues to be addressed
and the substantive approach for a future proposed rulemaking addressing the scope of CWA
jurisdiction.
Pending this rulemaking, should questions arise, the regulated community should seek
assistance from the Corps and EPA, in accordance with the joint memorandum attached as
Appendix A.
DATES: In order to be considered, comments or information in response to this ANPRM must
be postmarked or e-mailed on or before [ Insert date 45 days after the date of publication in the
FEDERAL REGISTER].
ADDRESSES: Comments may be submitted electronically, by mail, or through hand
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delivery/courier. Mail comments to: Water Docket, Environmental Protection Agency, Mailcode
41011, 1200 Pennsylvania Ave., NW, Washington, DC 20460, Attention Docket ID No.0W-
2002-0050.
FOR FURTHER INFORMATION CONTACT: For information on this ANPRM, contact
either Donna Downing, U.S. Environmental Protection Agency, Office of Wetlands, Oceans and
Watersheds (4502T), 1200 Pennsylvania Avenue N.W., Washington, DC 20460, phone: (202)
566-1366, e-mail: CWAwaters@epa gov, or Ted Rugiel, U.S. Army Corps of Engineers, ATFN
CECW-OR, 441 G Street N.W., Washington, DC 203 14-1000, phone: (202) 761-4595, e-mail:
Thaddeus.J.Rugiel@HQ O2.USACE.ARMY.MIL.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Potentially Regulated Entities
Persons or entities that discharge pollutants (including dredged or fill material) to “waters
of the U.S.” could be regulated by a rulemaking based on this ANPRM. The CWA generally
prohibits the discharge of pollutants into “waters of the U.S.” without a permit issued by EPA or
a State or Tribe approved by EPA under section 402 of the Act, or, in the case of dredged or fill
material, by the Corps or an approved State or Tribe under section 404 of the Act. In addition,
under the CWA, States or approved Tribes establish water quality standards for “waters of the
U.S.”, and also may assume responsibility for issuance of CWA permits for discharges into
waters and wetlands subject to the Act. Today’s ANPRM seeks public input on what, if any,
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revisions in light of SWANCC might be appropriate to the regulations that define “waters of the
U.S.”, and today’s ANPRM thus would be of interest to all entities discharging to, or regulating,
such waters. In addition, because the Oil Pollution Act (OPA) is applicable to waters and
wetlands subject to the CWA, today’s ANPRM may have implications for persons or entities
subject to the OPA. Examples of entities potentially regulated include:
EXAMPLES OF POTENTIALLY
CATEGORY REGULATED ENTITIES
State/Tribal governments or instrumentalities
,
State/Tribal agencies or instrumentalities that
discharge or spill pollutants into waters of the
U.S.
Local governments or instrumentalities
Local governments or instrumentalities that
discharge or spill pollutants into waters of the
U.S.
Federal government agencies or
instrumentalities
Federal government agencies or
instrumentalities that discharge or spill
pollutants into waters of the U.S.
Industrial, commercial, or agricultural entities
Industrial, commercial, or agricultural entities
that discharge or spill pollutants into waters
of the U.S.
Land developers and landowners
Land developers and landowners that
discharge or spill pollutants into waters of the
U.S.
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This table is not intended to be exhaustive, but rather provides a guide for readers
regarding entities that are likely to be regulated by a rulemaking based on this ANPRM. This
table lists the types of entities that we are now aware of that could potentially be regulated. Other
types of entities not listed in the table could also be regulated. To determine whether your
organization or its activities could be regulated, you should carefully examine the discussion in
this ANPRM. If you have questions regarding the applicability of this action to a particular entity,
consult one of the persons listed in the preceding FOR FURTHER INFORMATION CONTACT
section.
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. The agencies have established an official public docket for this action under
Docket ID No. OW-2002-0050. The official public docket consists of the documents specifically
referenced in this ANPRM, any public comments received, and other information related to this
ANPRM. Although a part of the official docket, the public docket does not include Confidential
Business Information (CBI) or other information whose disclosure is restricted by statute. The
official public docket is the collection of materials that is available for public viewing at the Water
Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B 102, 1301 Constitution Ave.,
NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 am. to
4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the Water Docket is (202)
566-2426. You may have to pay a reasonable fee for copying.
2. Electronic Access. You may access this Federal Register document electronically
through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstrl.
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An electronic version of the public docket is available through EPA’s electronic public
docket and comment system, EPA Dockets. You may use EPA Dockets at
http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the
contents of the official public docket, and to access those documents in the public docket that are
available electronically. Once in the system, select search, then key in the appropriate docket
identification number.
Certain types of information wifi not be placed in the EPA Dockets. Information claimed
as CBI and other information whose disclosure is restricted by statute, which is not included in
the official public docket, will not be available for public viewing in EPA’s electronic public
docket. EPA’s policy is that copyrighted material will not be placed in EPA’s electronic public
docket but will be available only in printed, paper form in the official public docket. Although not
all docket materials may be avai] ble electronically, you may still access any of the publicly
available docket materials through the docket facility identified in I.B.l.
For those who submit public comments, it is important to note that EPA’s policy is that
public comments, whether submitted electronically or in paper, will be made available for public
viewing in EPA’s electronic public docket as EPA receives them and without change, unless the
comment contains copyrighted material, CBI, or other information whose disclosure is restricted
by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a
reference to that material in the version of the comment that is placed in EPA’s electronic public
docket. The entire printed comment, including the copyrighted material, will be available in the
public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket
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will be transferred to EPA’s electronic public docket. Public comments that are mailed or
delivered to the Docket will be scanned and placed in EPA’s electronic public docket. Where
practical, physical objects will be photographed, and the photograph will be placed in EPA’s
electronic public docket along with a brief description written by the docket staff.
C. How and To Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand delivery/courier. To
ensure proper receipt by EPA, identify the appropriate docket identification number (OW-2002-
0050) in the subject line on the first page of your comment. Please ensure that your comments
are submitted within the specified comment period. Comments received after the close of the
comment period wifi be marked late. The agencies are not required to consider these late
comments.
I. Electronically. If you submit an electronic comment as prescribed below, EPA
recommends that you include your name, mailing address, and an e-mail address or other contact
information in the body of your comment. Also include this contact information on the outside of
any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM.
This ensures that you can be identified as the submitter of the comment and allows EPA to
contact you in case EPA cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA’s policy is that EPA will not edit your
comment, and any identifying or contact information provided in the body of a comment will be
included as part of the comment that is placed in the official public docket, and made available in
EPA’s electronic public docket. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, the agencies may not be able to consider your comment.
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i. EPA Dockets. Your use of EPA ’s electronic public docket to submit comments to EPA
electronically is EPA’s preferred method for receiving comments. Go directly to EPA Dockets at
http:I/www.epa.gov/edocket, and follow.t1 online instructions for submitting comments. Once
in the system, select search, and then key in Docket ID No. OW-2002-0050. The system is an
anonymous access system, which means EPA will not know your identity, e-mail address, or other
contact information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to C WA waters@epa.gov,
Attention Docket ID No. OW-2002-0050. In contrast to EPA’s electronic public docket, EPA’s
e-mail system is not an anonymous access system. If you send an e-mail comment directly to the
Docket without going through EPA’s electronic public docket, EPA’s e-mail system
automatically captures your e-mail address. E-mail addresses that are automatically captured by
EPA’s e-mail system are included as part of the comment that is placed in the official public
docket, and made available in EPA’s electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to
the mailing address identified in I.C.2. These electronic submissions will be accepted in
WordPerfect or ASCII file format. Avoid the use of special characters and any form of
encryption.
2. By Mail. Send four copies of your comments to: Water Docket, Environmental
Protection Agency, Mailcode 4101T, 1200 Pennsylvania Ave., NW, Washington, DC 20460,
Attention Docket ID No. OW-2002-0050.
3. By Hand Delivery or Courier. Deliver your comments to: Water Docket, EPA Docket
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Center, EPA West, Room B 102, 1301 Constitution Avenue, NW, Washington, DC, Attention
Docket ID No. OW-2002-0050. Such deliveries are only accepted during the Docket’s normal
hours of operation as identified in I.B.1.
D. What Should I Consider as I Prepare My Comments?
You may find the following suggestions helpful for preparing your comments:
a. Explain your views as clearly as possible.
b. Describe any assumptions that you used.
c. Provide any technical information and/or data on which you based your views.
d. If you estimate potential burden or costs, explain how you arrived at your estimate.
e. Provide specific examples to illustrate your concerns.
f. Offer alternatives.
g. Make sure to submit your comments by the comment period deadline identified.
h. To ensure proper receipt by EPA, identify the appropriate docket identification number
in the subject line on the first page of your response. It would also be helpful if you provided the
name, date, and Federal Register citation related to your comments.
II. The Importance of Updating the Regulations
The agencies have not engaged in a review of the regulations with the public concerning
CWA jurisdiction for some time. This ANPRM will help ensure that the regulations are
consistent with the CWA and the public understands what waters are subject to CWA jurisdiction.
The goal of the agencies is to develop proposed regulations that will further the public interest by
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clarifying what waters are subject to CWA jurisdiction and affording full protection to these
waters through an appropriate focus of Federal and State resources consistent with the CWA. It
is appropriate to review the regulations to ensure that they .are consistent with the SWANCC
decision. SWANCC eliminates CWA jurisdiction over isolated waters that are intrastate and non-
navigable, where the sole basis for asserting CWA jurisdiction is the actual or potential use of the
waters as habitat for migratory birds that cross State lines in their migrations. SWANCC also
calls into question whether CWA jurisdiction over isolated, intrastate, non-navigable waters could
now be predicated on the other factors listed in the “Migratory Bird Rule” or the other rationales
of 33 CFR 328.3(a)(3)(i)-(iii).
Although the SWANCC case itself specifically involves section 404 of the CWA, the
Court’s decision may also affect the scope of regulatory jurisdiction under other provisions of the
CWA, including programs under sections 303, 311, 401, and 402. Under each of these sections,
the relevant agencies have jurisdiction over “waters of the United States.” The agencies wifi
consider the potential implications of the rulemaking for these other sections.
• Section 404 dredged and fill material permit program. This program establishes
a permitting system to regulate discharges of dredged or fill material into waters
of the United States.
• Section 303 water quality standards program. Under this program, States and
authorized Indian Tribes establish water quality standards for navigable waters to
“protect the public health or welfare” and “enhance the quality of water”, “taking
into consideration their use and value for public water supplies, propagation of fish
and wildlife, recreational purposes, and agriculture, industrial, and other purposes,
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and also taking into consideration their use and value for navigation.”
Section 311 spill program and the Oil Pollution Act (OPA). Section 311 of the
CWA addresses pollution from both oil and hazardous substance releases.
‘Together with the Oil Pollution Act, it provides EPA and the U.S. Coast Guard
with the authority to establish a program for preventing, preparing for, and
responding to spills that occur in navigable waters of the United States.
• Section 401 State water-quality certification program. Section 401 provides that
no Federal permit or license for activities that might result in a discharge to
navigable waters may be issued unless a section 401 water-quality certification is
obtained from or waived by States or authorized Tribes.
• Section 402 National Pollutant Discharge Elimination System (NPDES)
permitting program. This program establishes a permitting system to regulate
point source discharges of pollutants (other than dredged or fill material) into
waters of the United States.
III. Legislative and Regulatory Context
The Federal Water Pollution Control Act Amendments, now known as the Clean Water
Act (CWA), was enacted in 1972. In the years since its enactment, the scope of waters regulated
under the CWA has been discussed in regulations, legislation, and judicial decisions.
The CWA was intended to “restore and maintain the chemical, physical, and biological
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integrity of the Nation’s waters.” 33 U.S.C. section 125 1(a). Its specific provisions were
designed to improve upon the protection of the Nation’s waters provided under earlier statutory
schemes such as.the Rivers and Harbors Act-of 1299 (“RFIA”) (33 U.S.C. sections 403,407, 411)
and the Federal Water Pollution Control Act of 1948 (62 Stat. 1155) and its subsequent
amendments through 1970. In doing so, Congress recognized “the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution, to plan the development and use
(including restoration, preservation, and enhancement) of land and water resources. .. .“ 33
U.S.C. section 1251(b).
The jurisdictional scope of the CWA is “navigable waters,” defined in the statute as
“waters of the United States, including the territorial seas.” CWA section 502(7), 33 U.S.C.
section 1362(7). The existing CWA section 404 regulations define “waters of the United States”
as follows:
(1) All waters which are currently used, or were used in the past, or may be
susceptible to use in interstate or foreign commerce, including all waters
which are subject to ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds, the use, degradation
or destruction of which could affect interstate or foreign commerce
including any such waters:
(i) which are or could be used by interstate or foreign travelers for
recreational or other purposes; or
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(ii) from which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
(iii) which are used or could be used for industrial purposes by
industries in interstate commerce.
(4) All impoundments of waters otherwise defined as waters of the United
States under the definition;
(5) Tributaries of waters identified in paragraphs (a)( 1 )-(4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified in paragraphs (a)( 1 )-(6) of this section.
(8) Waters of the United States do not include prior converted cropland
Waste treatment systems, including treatment ponds or lagoons designed to
meet the requirements of CWA (other than cooling ponds ...) are not
waters of the United States.
40 CFR.230.3(s); 33 CFR 328.3(a).
Counterpart and substantively similar regulatory definitions appear at 40 CFR 110.1, 112.2,
116.3, 117.1, 122.2, 232.2, 300.5, part 300 App. E, 302.3 and 401.11 (hereafter referred to as
“the counterpart definitions”).
In regulatory preambles, both the Corps and EPA provided examples of additional types
of links to interstate commerce which might serve as a basis under 40 CFR 230.3(a)(3) and 33
CFR 328.3(a)(3) for establishing CWA jurisdiction over intrastate waters which were not part of
the tributary system or their adjacent wetlands. These included use of waters (1) as habitat by
birds protected by Migratory Bird Treaties or which cross State lines, (2) as habitat for
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endangered species, or (3) to irrigate crops sold in commerce. 51 FR 41217 (November 13,
1986), 53 FR 20765 (June 6, 1988). These examples became known as the “Migratory Bird
Rule,” even though the examples were neither a rui nor entirely about birds. The Migratory Bird...
Rule later became the focus of the SWANCC case.
IV. Potential Natural Resource Implications
To date, some quantitative studies and anecdotal data provide early estimates of potential
resource implications of the SWANCC decision. One of the purposes of the ANPRM is to solicit
additional information, data, or studies addressing the extent of resource impacts to isolated,
intrastate, non-navigable waters.
Non-navigable intrastate isolated waters occur throughout the country. Their extent
depends on a variety of factors including topography, climate, and hydrologic forces. Preliminary
assessments of potential resource impacts vary widely depending on the scenarios considered.
See, e.g., Ducks Unlimited, ‘The SWANCC Decision: Implications for Wetlands and Waterfowl”
(September 2001) (available at http://www.ducks.org/conservationl404_report.asp); ASWM,
“SWANCC Decision and the State Regulation of Wetlands,” (June 2001) (available at
http://www.aswm.org).
There is an extensive body of knowledge about the functions and values of wetlands,
which include flood risk reduction, water quality improvement, fish and wildlife habitat, and
maintenance of the hydrologic integrity of aquatic ecosystems. The ANPRM seeks information
regarding the functions and values of wetlands and other waters that may be affected by the issues
discussed in this ANPRM.
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V. Solicitation of Comments
The agencies are seeking comment on issues related to the jurisdictional status of isolated
waters under the CWA which the public wishes to call to our attention. To assist the public in
considering these issues, the following discussion and specific questions are presented. The
agencies will carefully consider the responses received to this ANPRM in determining what
regulatory changes may be appropriate and the issues to be addressed in a proposed rulemaking to
clarify CWA jurisdiction.
The SWANCC holding eliminates CWA jurisdiction over isolated, intrastate, non-
navigable waters where the sole basis for asserting CWA jurisdiction is the actual or potential use
of the waters as habitat for migratory birds that cross State lines in their migrations. 531 U.S. at
174 (“We hold that 33 CFR § 328.3(a)(3) (1999), as clarified and applied to petitioner’s balefill
site pursuant to the ‘Migratory Bird Rule,’ 51 Fed. Reg. 41217 (1986), exceeds the authority
granted to respondents under § 404(a) of the CWA.”). The agencies seek comment on the use of
the factors in 33 CFR 328.3(a)(3)(i)-(iii) or the counterpart regulations in determining CWA
jurisdiction over isolated, intrastate, non-navigable waters.
The agencies solicit comment from the public on the following issues:
1) Whether, and, if so, under what circumstances, the factors listed in 33 CFR
328.3(a)(3)(i)-(iii) (j ., use of the water by interstate or foreign travelers for
recreational or other purposes, the presence of fish or shellfish that could be taken
and sold in interstate commerce, the use of the water for industrial purposes by
industries in interstate commerce) or any other factors provide a basis for
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determining CWA jurisdiction over isolated, intrastate, non-navigable waters?
2) Whether the regulations should define “isolated waters,” and if so, what factors
should be considered in detennining whether a water is or is not isolated for
jurisdictional purposes?
Solicitation of information
In answering the questions set forth above, please provide, as appropriate, any
information (e.g., scientific and technical studies and data, analysis of environmental impacts,
effects on interstate commerce, other impacts, etc.) supporting your views, and specific
recommendations on how to implement such views. Additionally, we invite your views as to
whether any other revisions are needed to the existing regulations on which waters are
jurisdictional under the CWA. As noted elsewhere in this document, the agencies are also
soliciting data and information on the availability and effectiveness of other Federal or State
programs for the protection of aquatic resources, and on the functions and values of wetlands and
other waters that may be affected by the issues discussed in this ANPRM.
VI. Related Federal and State Authorities
The SWANCC decision addresses CWA jurisdiction, and other Federal or State laws and
programs may still protect a water and related ecosystem even if that water is no longer
jurisdictional under the CWA following SWANCC . The Federal government remains committed
to wetlands protection through the Food Security Act’s Swampbuster requirements and Federal
agricultural program benefits and restoration through such Federal programs as the Wetlands
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Reserve Program (administered by the U.S. Department of Agriculture), grant making programs
such as Partners in Wildlife (administered by the Fish and Wildlife Service), the Coastal Wetlands
Restoration Program (administered by the National Marine Fisheries Service), the State Grant,
Five Star Restoration, and National Estuary Programs (administered by EPA), and the Migratory
Bird Conservation Commission (composed of the Secretaries of Interior and Agriculture, the
Administrator of EPA and Members of Congress).
The SWANCC decision also highlights the role of States in protecting waters not
addressed by Federal law. Prior to SWANCC , fifteen States had programs that addressed isolated
wetlands. Since SWANCC , additional States have considered, and two have adopted, legislation
to protect isolated waters. The Federal agencies have a number of initiatives to assist States in
these efforts to protect wetlands. For example, EPA’s Wetland Program Development Grants are
available to assist States, Tribes, and local governments for building their wetland program
capacities. In addition, the U.S. Department of Justice and other Federal agencies co-sponsored a
national wetlands conference with the National Governors Association Center for Best Practices,
National Conference of State Legislatures, the Association of State Wetlands Managers, and the
National Association of Attorneys General. This conference and the dialogue that has ensued will
promote close collaboration between Federal agencies and States in developing, implementing,
and enforcing wetlands protection programs. EPA also is providing funding to the National
Governors Association Center for Best Practices to assist States in developing appropriate
policies and actions to protect intrastate isolated waters.
In light of this, the agencies solicit information and data from the general public, the
scientific community, and Federal and State resource agencies on the availability and effectiveness
of other Federal or State programs for the protection of aquatic resources and practical
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experience with their implementation. The agencies are also interested in data and comments
from State and local agencies on the effect of no longer asserting jurisdiction over some of the
waters (and discharges to those waters) in a watershed on the implementation of Total Maximum
Daily Loads (TMDLs) and attainment of water quality standards.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA and the Corps must
determine whether the regulatory action is “significant” and therefore subject to review by the
Office of Management and Budget (0MB) and the requirements of the Executive Order. The
Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned
by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising Out of legal mandates, the President’s
priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been determined that this
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Advanced Notice of Proposed Rulemaking is a “significant regulatory action” in light of the
provisions of paragraph (4) above as it raises novel legal or policy issues. As such, this action
was submitted to 0MB for review. Changes made in response to 0MB suggestions or
recommendations will be documented in the public record.
B. National Environmental Policy Act
As required by the National Environmental Policy Act (NEPA), the Corps prepares
appropriate environmental documentation for its activities affecting the quality of the human
environment. The Corps has determined that today’s Advance Notice of Proposed Rulemaking
merely solicits early comment on issues associated with the scope of waters that are properly
subject to the CWA, and information or data from the general public, the scientific community,
and Federal and State resource agencies on the implications of the SWANCC decision for the
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ANPRM on the Clean Water Act Regulatory Definition of “Waters of the United States”
(Page 20 of 32)
protection of aquatic resources. In light of this, the Corps has determined that today’s ANPRIvI
does not constitute a major Federal action significantly affecting the quality of the human
environment, and thus does not require the preparation of an Environmental Impact Statement
(EIS).
Dated: Dated:
Christine Todd Whitman, R.L. Brownlee,
Administrator, Acting Assistant Secretary of the Army
Environmental Protection Agency (Civil Works)
Department of the Army
APPENDIX A
The following guidance document will not appear in the Code of Federal Regulations.
JOINT MEMORANDUM
INTRODUCTION
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This document provides clarifying guidance regarding the Supreme Court’s decision in
Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers , 531
U.S. 159 (2001) (“SWANCC”) and addresses several legal issues concerning Clean Water Act
(“CWA”) jurisdiction that have arisen since SWANCC in various factual scenarios involving
federal regulation of “navigable waters.” Because the case law interpreting SWANCC has
developed over the last two years, the Agencies are issuing this updated guidance, which
supersedes prior guidance on this issue. The Corps and EPA are also initiating a rulemaking
process to collect information and to consider jurisdictional issues as set forth in the attached
ANPRM. Jurisdictional decisions will be based on Supreme Court cases including United States
v. Riverside Bayview Homes , 474 U.S. 121 (1985) and SWANCC , regulations, and applicable
case law in each jurisdiction.
BACKGROUND
In SWANCC , the Supreme Court held that the Army Corps of Engineers had exceeded its
authority in asserting CWA jurisdiction pursuant to § 404(a) over isolated, intrastate, non-
navigable waters under 33 C.F.R. § 328.3(a)(3), based on their use as habitat for migratory birds
pursuant to preamble language conmionly referred to as the “Migratory Bird Rule,” 51 Fed. Reg.
41217 (1986). “Navigable waters” are defined in § 502 of the CWA to mean “waters of the
United States, including the territorial seas.” in SWANCC , the Court determined that the term
“navigable” had significance in indicating the authority Congress intended to exercise in asserting
CWA jurisdiction. 531 U.S. at 172. After reviewing the jurisdictional scope of the statutory
definition of “navigable waters” in § 502, the Court concluded that neither the text of the statute
nor its legislative history supported the Corps’ assertion of jurisdiction over the waters involved in
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SWANCC . at 170- 171.
In SWANCC , the Supreme Court recognized that “Congress passed the CWA for the
stated purpose of ‘restoring and maintaining the chemical, physical, and biological integrity of the
Nation’s waters” and also notedthat “Congress chose to ‘recognize, preserve, and protect the
primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the
development and use (including restoration, preservation, and enhancement) of land and water
resources.” j at 166-67 (citing 33 U.S.C. § 125 1(a) and (b)). However, expressing “serious
constitutional and federalism questions” raised by the Corps’ interpretation of the CWA, the
Court stated that “where an administrative interpretation of a statute invokes the outer limits of
Congress’ power, we expect a clear indication that Congress intended that result.” Id. at 174,
172. Finding “nothing approaching a clear statement from Congress that it intended § 404(a) to
reach an abandoned sand and gravel pit” (id at 174), the Court held that the Migratory Bird Rule,
as applied to petitioners’ property, exceeded the agencies’ authority under § 404(a). ., at 174.
THE SCOPE OF CWA JURISDICTION AFTER SWANCC
Because SWANCC limited use of 33 C.F.R. § 328.3(a)(3) as a basis of jurisdiction over
certain isolated waters, it has focused greater attention on CWA jurisdiction generally, and
specifically over tributaries to jurisdictional waters and over wetlands that are “adjacent wetlands”
for CWA purposes.
As indicated, § 502 of the CWA defines the term navigable waters to mean “waters of the
United States, including the territorial seas.” The Supreme Court has recognized that this
definition clearly includes those waters that are considered traditional navigable waters. In
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SWANCC , the Court noted that while “the word ‘navigable’ in the statute was of ‘limited
import” (quoting Riverside , 474 U.S. 121 (1985)), “the term ‘navigable’ has at least the import
of showing us what Congress had in mind as its authority for enacting the CWA: its traditional
jurisdiction over waters that were or had been navigable in fact or which could reasonably be so
made.” 531 U.S. at 172. In addition, the Court reiterated in SWANCC that Congress evidenced
its intent to regulate “at least some waters that would not be deemed ‘navigable’ under the
classical understanding of that term.” SWANCC at 171 (quoting Riverside , 474 U.S. at 133).
Relying on that intent, for many years, EPA and the Corps have interpreted their regulations to
assert CWA jurisdiction over non-navigable tributaries of navigable waters and their adjacent
wetlands. Courts have upheld the view that traditional navigable waters and, generally speaking,
their tributary systems (and their adjacent wetlands) remain subject to CWA jurisdiction.
Several federal district and appellate courts have addressed the effect of SWANCC on
CWA jurisdiction, and the case law on the precise scope of federal CWA jurisdiction in light of
SWANCC is still developing. While a majority of cases hold that SWANCC applies only to
waters that are isolated, intrastate and non-navigable, several courts have interpreted SWANCC’s
reasoning to apply to waters other than the isolated waters at issue in that case. This
memorandum attempts to add greater clarity concerning federal CWA jurisdiction following
SWANCC by identifying specific categories of waters, explaining which categories of waters are
jurisdictional or non-jurisdictional, and pointing out where more refined factual and legal analysis
will be required to make a jurisdictional determination.
Although the SWANCC case itself specifically involved Section 404 of the CWA, the
Court’s decision may affect the scope of regulatory jurisdiction under other provisions of the
CWA as well, including the Section 402 NPDES program, the Section 311 oil spill program,
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water quality standards under Section 303, and Section 401 water quality certification. Under
each of these sections, the relevant agencies have jurisdiction over “waters of the United States.”
CWA § 502(7).
This memorandum does not discuss the exact factual predicates that are necessary to
establish jurisdiction in individual cases. We recognize that the field staff and the public could
benefit from additional guidance on how to apply the applicable legal principles to individual
cases.’ Should questions arise concerning CWA jurisdiction, the regulated community should
seek assistance from the Corps and EPA.
A. Isolated, Intrastate Waters that are Non-navigable
SWANCC squarely eliminates CWA jurisdiction over isolated waters that are intrastate
and non-navigable, where the sole basis for asserting CWA jurisdiction is the actual or potential
use of the waters as habitat for migratory birds that cross state lines in their migrations. 531 U.S.
The CWA provisions and regulations described in this document contain legally binding
requirements. This document does not substitute for those provisions or regulations, nor is it a
regulation itself. It does not impose legally binding requirements on EPA, the Corps, or the
regulated community, and may not apply to a particular situation depending on the circumstances.
Any decisions regarding a particular water will be based on the applicable statutes, regulations,
and case law. Therefore, interested persons are free to raise questions and objections about the
appropriateness of the application of this guidance to a particular situation, and EPA and/or the
Corps will consider whether or not the recommendations or interpretations of this guidance are
appropriate in that situation based on the law and regulations.
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at 174 (“We hold that 33 C.F.R. § 328.3(a)(3) (1999), as clarified and applied to petitioner’s
baleful site pursuant to the ‘Migratory Bird Rule,’ 51 Fed. Reg. 41217 (1986), exceeds the
authority granted to respondents under § 404(a) of the CWA.”). The EPA and the Corps are now
precluded from asserting CWA jurisdiction in such situations, including over waters such as
isolated, non-navigable, intrastate vernal pools, playa lakes and pocosins. SWANCC also calls
into question whether CWA jurisdiction over isolated, intrastate, non-navigable waters could now
be predicated on the other factors listed in the Migratory Bird Rule, 51 Fed. Reg. 41217 (u., use
of the water as habitat for birds protected by Migratory Bird Treaties; use of the water as habitat
for Federally protected endangered or threatened species; or use of the water to irrigate crops
sold in interstate commerce).
By the same token, in light of SWANCC , it is uncertain whether there remains any basis
for jurisdiction under the other rationales of § 328.3(a)(3)(i)-(iii) over isolated, non-navigable,
intrastate waters (j ., use of the water by interstate or foreign travelers for recreational or other
purposes; the presence of fish or shellfish that could be taken and sold in interstate commerce; use
of the water for industrial purposes by industries in interstate commerce). Furthermore, within
the states comprising the Fourth Circuit, CWA jurisdiction under 33 C.F.R. § 328.3(a)(3) in its
entirety has been precluded since 1997 by the Fourth Circuit’s ruling in United States v. Wilson ,
133 F. 3d 251, 257 ( 4 th Cir. 1997) (invalidating 33 C.F.R. § 328.3(a)(3)).
In view of SWANCC , neither agency will assert CWA jurisdiction over isolated waters
that are both intrastate and non-navigable, where the sole basis available for asserting CWA
jurisdiction rests on any of the factors listed in the “Migratory Bird Rule.” In addition, in view of
the uncertainties after SWANCC concerning jurisdiction over isolated waters that are both
intrastate and non-navigable based on other grounds listed in 33 C.F.R. § 328.3(a)(3)(i)-(iii), field
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staff should seek formal project-specific Headquarters approval prior to asserting jurisdiction over
such waters, including permitting and enforcement actions.
B. Traditional Navigable Waters
As noted, traditional navigable waters are jurisdictional. Traditional navigable waters are
waters ihat are subject to the ebb and flow of the tide, or waters that are presently used, or have
been used in the past, or may be susceptible for use to transport interstate or foreign commerce.
33 C.F.R. § 328.3(a)(1); United States v. Appalachian Elec. Power Co. , 311 U.S. 377, 407-408
(1940) (water considered navigable, although not navigable at present but could be made
navigable with reasonable improvements); Economy Light & Power Co. v. United States , 256
U.S. 113 (1911) (dams and other structures do not eliminate navigability); SWANCC , 531 U.S. at
172 (referring to traditional jurisdiction over waters that were or had been navigable in fact or
which could reasonably be so made). 2
In accord with the analysis in SWANCC , waters that fall within the definition of traditional
navigable waters remain jurisdictional under the CWA. Thus, isolated, intrastate waters that are
capable of supporting navigation by watercraft remain subject to CWA jurisdiction after
SWANCC if they are traditional navigable waters, j , if they meet any of the tests for being
navigable-in-fact. See. e.g.. Colvin v. United States 181 F. Supp. 2d 1050 (C.D. Cal. 2001)
2 These traditional navigable waters are not limited to those regulated under Section 10 of
the Rivers and Harbors Act of 1899; traditional navigable waters include waters which, although
used, susceptible to use, or historically used, to transport goods or people in commerce, do not
form part of a continuous waterborne highway.
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(isolated man-made water body capable of boating found to be “water of the United States”).
C. Adjacent Wetlands
( 1) Wetlands Adjacent to Traditional Navigable Waters
CWA jurisdiction also extends to wetlands that are adjacent to traditional navigable
waters. The Supreme Court did not disturb its earlier holding in Riverside when it rendered its
decision in SWANCC. Riverside dealt with a wetland adjacent to Black Creek, a traditional
navigable water. 474 U.S. 121 (1985); see also SWANCC , 531 U.S. at 167 (“ [ un Riverside , we
held that the Corps had § 404(a) jurisdiction over wetlands that actually abutted on a navigable
waterway”). The Court in Riverside found that “Congress’ concern for the protection of water
quality and aquatic ecosystems indicated its intent to regulate wetlands ‘inseparably bound up
with” jurisdictional waters. 474 U.S. at 134. Thus, wetlands adjacent to traditional navigable
waters clearly remain jurisdictional after SWANCC . The Corps and EPA currently define
“adjacent” as “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(b); 40 C.F.R. § 230.3(b). The Supreme Court has
not itself defined the term “adjacent,” nor stated whether the basis for adjacency is geographic
proximity or hydrology.
( 2) Wetlands Adjacent to Non-Navigable Waters
The reasoning in Riverside , as followed by a number of post-S WANCC courts, supports
jurisdiction over wetlands adjacent to non-navigable waters that are tributaries to navigable
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waters. Since SWANCC , some courts have expressed the view that SWANCC raised questions
about adjacency jurisdiction, so that wetlands are jurisdictional only if they are adjacent to
navigable waters. See, e.g., Rice v. Harken , discussed infra.
D. Tributaijes
A number of court decisions have held that SWANCC does not change the principle that
CWA jurisdiction extends to tributaries of navigable waters. See. e.g.. Headwaters v. Talent
Irrigation Dist. , 243 F.3d 526, 534 ( 9 th Cir. 2001) (“Even tributaries that flow intermittently are
‘waters of the United States”); United States v. Interstate Gen. Co , No. 01-45 13, slip op.at 7,
2002 WL 1421411 ( 4 th Cir. July 2, 2002), aff’ing 152 F. Supp. 2d 843 (D. Md. 2001) (refusing to
grant writ of coram nobis; rejecting argument that SWANCC eliminated jurisdiction over
wetlands adjacent to non-navigable tributaries); United States v. Krilich , 393F.3d 784 ( 7 th Cir.
2002) (rejecting motion to vacate consent decree, finding that SWANCC did not alter regulations
interpreting “waters of the U.S.” other than 33 C.F.R. § 328.3(a)(3)); Community Ass. for
Restoration of the Env’t v. Henry Bosma Dairy , 305 F.3d 953 (9th Cir. 2002) (drain that flowed
into a canal that flows into a river is jurisdictional); Idaho Rural Council v. Bosma , 143 F. Supp.
2d 1169, 1178 (D. Idaho 2001) (“waters of the United States include waters that are tributary to
navigable waters”); Aiello v. Town of Brookhaven , 136 F. Supp. 2d 81, 118 (E.D. N.Y. 2001)
(non-navigable pond and creek determined to be tributaries of navigable waters, and therefore
“waters of the United States under the CWA”). Jurisdiction has been recognized even when the
tributaries in question flow for a significant distance before reaching a navigable water or are
several times removed from the navigable waters (j , “tributaries of tributaries”). See, e.g.,
United States v. Lamplight Equestrian Ox. . No. 00 C 6486,2002 WL 360652, at *8 (ND. Ill.
Mar. 8, 2002) (“Even where the distance from the tributary to the navigable water is significant,
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the quality of the tributary is still vital to the quality of navigable waters”); United States v.
Buday , 138 F. Supp. 2d 1282, 1291-92 (D. Mont. 2001) (“water quality of tributaries. . . distant
though the tributaries may be from navigable streams, is vital to the quality of navigable waters”);
United States v. Rueth Dev. Co. , No. 2:96CV540, 2001 WL 17580078 (N.D. J.nd. Sept. 26,
2001) (refusing to reopen a consent decree in a CWA case and determining that jurisdiction
remained over wetlands adjacent to a non-navigable (man-made) waterway that flows into a
navigable water).
Some courts have interpreted the reasoning in SWANCC to potentially circumscribe
CWA jurisdiction over tributaries by finding CWA jurisdiction attaches only where navigable
waters and waters immediately adjacent to navigable waters are involved. Rice v. Harken is the
leading case taking the narrowest view of CWA jurisdiction after SWANCC . 250 F.3d 264 ( 5 th
Cir. 2001) (rehearing denied). Harken interpreted the scope of “navigable waters” under the Oil
Pollution Act (OPA). The Fifth Circuit relied on SWANCC to conclude “it appears that a body
of water is subject to regulation under the CWA if the body of water is actually navigable or is
adjacent to an open body of navigable water.” 250 F.3d at 269. The analysis in Harken implies
that the Fifth Circuit might limit CWA jurisdiction to only those tributaries that are traditionally
navigable or immediately adjacent to a navigable water.
A few post-S WANCC district court opinions have relied on Harken or reasoning similar
to that employed by the Harken court to limit jurisdiction. See. e.g., United States v. Rapanos ,
190 F. Supp. 2d 101 1(E.D. Mich 2002) (government appeal pending) (“the Court finds as a
matter of law that the wetlands on Defendant’s property were not directly adjacent to navigable
waters, and therefore, the government cannot regulate Defendant’s property.”); United States v.
Needham , No. 6:0l-CV-01897, 2002 WL 1162790 (W.D. La. Jan. 23, 2002) (government
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appeal pending) (district court affirmed finding of no liability by bankruptcy court for debtors
under OPA for discharge of oil since drainage ditch into which oil was discharged was found to be
neither a navigable water nor adjacent to an open body of navigable water). See also United
States v. Newdunn , 195 F. Supp. 2d 751 (E.D. Va. 2002) (government appeal pending)
(wetlands and tributaries not contiguous or adjacent to navigable waters are outside CWA
jurisdiction); United States v. RGM Corp. , 222 F. Supp. 2d 780 (E.D. Va. 2002) (government
appeal pending) (wetlands on property not contiguous to navigable river and, thus, jurisdiction
not established based upon adjacency to navigable water).
Another question that has arisen is whether CWA jurisdiction is affected when a surface
tributary to jurisdictional waters flows for some of its length through ditches, culverts, pipes,
storm sewers, or similar manmade conveyances. A number of courts have held that waters with
manmade features are jurisdictional. For example, in Headwaters inc. v. Talent Irrigation District ,
the Ninth Circuit held that manmade irrigation canals that diverted water from one set of natural
streams and lakes to other streams and creeks were connected as tributaries to waters of the
United States, and consequently fell within the purview ofCWAjurisdiction. 243 F.3d at 533-34.
However, some courts have taken a different view of the circumstances under which man-made
conveyances satisfy the requirements for CWA jurisdiction. See. e.g., Newdunn , 195 F. Supp. 2d
at 765 (government appeal pending) (court determined that Corps had failed to carry its burden of
establishing CWA jurisdiction over wetlands from which surface water had to pass through a spur
ditch, a series of man-made ditches and culverts as well as non-navigable portions of a creek
before finally reaching navigable waters).
A number of courts have held that waters connected to traditional navigable waters only
intermittently or ephemerally are subject to CWA jurisdiction. The language and reasoning in the
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Ninth Circuit’s decision in Headwaters Inc. v. Talent Irrigation District indicates that the
intermittent flow of waters does not affect CWA jurisdiction. 243 F.3d at 534 (“Even tributaries
that flow intermittently are ‘waters of the United States.”). Other cases, however, have
suggested that SWANCC eliminated from CWA jurisdiction some waters that flow only
intermittently. See. e.g., Newdunn , 195 F. Supp. 2d at 764, 767-68 (government appeal pending)
(ditches and culverts with intermittent flow not jurisdictional).
A factor in determining jurisdiction over waters with intermittent flows is the presence or
absence of an ordinary high water mark (OHWM). Corps regulations provide that, in the absence
of adjacent wetlands, the lateral limits of non-tidal waters extend to the OHWM (33 C.F.R. §
328.4(c)( 1)). One court has interpreted this regulation to require the presence of a continuous
OHWM. United States v. RGM , 222 F. Supp. 2d 780 (ED. Va. 2002) (government appeal
pending).
CONCLUSION
In light of SWANCC , field staff should not assert CWA jurisdiction over isolated waters
that are both intrastate and non-navigable, where the sole basis available for asserting CWA
jurisdiction rests on any of the factors listed in the “Migratory Bird Rule.” In addition, field staff
should seek formal project-specific HQ approval prior to asserting jurisdiction over waters based
on other factors listed in 33 C.F.R. § 328.3(a)(3)(i)-(iii).
Field staff should continue to assert jurisdiction over traditional navigable waters (and
adjacent wetlands) and, generally speaking, their tributary systems (and adjacent wetlands). Field
staff should make jurisdictional and permitting decisions on a case-by-case basis considering this
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guidance, applicable regulations, and any additional relevant court decisions. Where questions
remain, the regulated community should seek assistance from the agencies on questions of
jurisdiction. -
Robert E. Fabricant Steven J. Morello
General Counsel, General Counsel,
Environmental Protection Agency Department of the Army
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Federal Register/Vol. 68, No. 10 / Wednesday, January 15, 2003 I Proposed Rules
1991
§ 1794.51 Preparation for scoping.
(a) As soon as practicable after RUS
nd the applicant have developed a
schedule for the environmental review
process, RUS shall have its notice of
intent to prepare an EA or EIS and
schedule scoping meetings ( 1794.13)
published in the Federal Register (see
40 CFR 1508.22). The applicant shall
have published, in a timely manner, a
notice similar to RUS’ notice.
* * * * *
14. Section 1794.5 2(d) is amended by
removing the last sentence and adding
a new sentence at the end of the
paragraph to read as follows:
§ 1794.52 Scoplng meetings.
* * * * *
(d) * * * The applicant or its
consultant shall prepare a record of the
scoping meeting. The record shall
consist of a transcript when a traditional
meeting format is used or a summary
report when an open house format is
used.
* * * * *
15. Section 1794.53 is revised to read
as follows
§ 1794.53 Environmental report.
(a) After scoping procedures have
been completed, RUS shall require the
ppphcant to develop and submit an ER.
The ER shall be prepared under the
supervision and guidance of RUS staff
and RUS shall evaluate and be
responsible for the accuracy of all
information contained therein.
(b) The applicant’s ER will normally
serve as the RUS EA After RUS has
reviewed and found the ER to be
satisfactory, the applicant shall provide
RUS with a sufficient number of copies
of the ER to satisfy the RUS distribution
plan.
(c) The ER shall include a summary
of the construction and operation
monitoring and mitigation measures for
the proposed action. These measures
may be revised as appropriate in
response to comments and other
information, and shall be incorporated
by summary or reference into the
FONSI
16. Section 1794.54 is revised to read
as follows
§ 1794.54 Agency determination.
Following the scoping process and the
development of a satisfactory ER by the
applicant or its consultant that will
serve as the agency’s EA, RUS shall
determine whether the proposed action
is a major Federal action significantly
ffecting the quality of the human
nvironment. If RUS determines the
action is significant, RUS will continue
with the procedures in subpart C of this
part. If RUS determines the action is not
significant, RUS will proceed in
accordance with § 1794 42 through
1794.44, except that RUS shall have a
notice published in the Federal Register
that announces the availability of the
EA and FONSI.
§ 1794.61 (Amendedl
17. Section 1794.61 is amended by.
A. Removing paragraph (b).
B. Redesignating paragraph (a) as the
introductory text; paragraph (a)(1) as (a);
paragraph (a)(2) as (b); and paragraph
(a)(3) as (c).
Dated December 24, 2002
Blame D. Stockton,
Acting Administrator, Rural Utilities Seivice
[ FR Doc 03—713 Filed 1—14—03, 845 am]
BILUNG CODE 3410-15-P
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Parts 110,112,116,117,122,
230,232,300, and 401
LFRL—7439-81
R1N 2040-AB74
Advance Notice of Proposed
Rulemaking on the Clean Water Act
Regulatory Definition of “Waters of the
United States”
AGENCIES: U.S. Army Corps of
Engineers, Department of the Army,
DOD; and Environmental Protection
Agency.
ACTiON: Advance notice of proposed
rulemaking
SUMMARY: The U.S. Army Corps of
Engineers (Corps) and the
Environmental Protection Agency (EPA)
are today issuing an advance notice of
proposed rulemaking (ANPRM) in order
to obtain early comment on issues
associated with the scope of waters that
are subject to the Clean Water Act
(CWA), in light of the U.S. Supreme
Court decision in Solid Waste Agency of
Northern Cook County v. U.S Army
Corps of Engineers, 531 U.S. 159 (2001)
(S WA NCC)
Today’s ANPRM requests public
input on issues associated with the
definition of “waters of the United
States” and also solicits information or
data from the general public, the
scientific community, and Federal and
State resource agencies on the
implications of the SWANCC decision
for jurisdictional decisions under the
CWA. The goal of the agencies is to
develop proposed regulations that will
further the public interest by clarifying
what waters are subject to CWA
jurisdiction and affording full protection
to these waters through an appropriate
focus of Federal and State resources
consistent with the CWA. The input
received from the public in response to
today’s ANPRM will be used by the
agencies to determine the issues to be
addressed and the substantive approach
for a future proposed rulemaking
addressing the scope of CWA
jurisdiction.
Pending this rulemaking, should
questions arise, the regulated
community should seek assistance from
the Corps and EPA, in accordance with
the joint memorandum attached as
Appendix A.
DATES: In order to be considered,
comments or information in response to
this ANPRM must be postmarked or e-
mailed on or before March 3, 2003.
ADDRESSES: Comments may be
submitted electronically, by mail, or
through hand delivery/courier Mail
comments to: Water Docket,
Environmental Protection Agency,
Mailcode 4101T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460,
Attention Docket ID No OW—2002—
0050
FOR FURTHER INFORMATION CONTACT: For
information on this ANPRM, contact
either Donna Downing, U.S.
Environmental Protection Agency,
Office of Wetlands. Oceans and
Watersheds (4502T), 1200 Pennsylvania
Avenue N.W., Washington, DC 20460,
phone: (202) 566—1366, e-mail:
CWflwaters@epa gov, or Ted Rugiel,
U.S. Army Corps of Engineers, ATTN
cECW-OR, 441 C Street NW.,
Washington, DC 20314—1000, phone:
(202) 761—4595, e-mail:
Thaddeus I Rugiel@
HQO2.USACE ARMY MIL
SUPPLEMENTARY INFORMATION:
I. General Information
A. Potentially Regulated Entities
Persons or entities that discharge
pollutants (including dredged or fill
material) to “waters of the U.S.” could
be regulated by a rulemaking based on
this ANPRM. The CWA generally
prohibits the discharge of pollutants
into “waters of the U.S.” without a
permit issued by EPA or a State or Tribe
approved by EPA under section 402 of
the Act, or, in the case of dredged or fill
material, by the Corps or an approved

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1992
Federal Register/Vol. 66, No. 10/Wednesday, January 15, 2003/Proposed Rules
State or Tribe under section 404 of the
Act. In addition, under the CWA, States
or approved Tribes establish water
quality standards for “waters of the
U.S.”, and also may assume
responsibility for issuance of CWA
permits for discharges into waters and
wetlands subject to the Act. Today’s
ANPRM seeks public input on what, if
any, revisions in light of SWANCC
might be appropriate to the regulations
that define ‘waters of the U.S.”, and
today’s ANPRM thus would be of
interest to all entities discharging to, or
regulating, such waters. In addition,
because the Oil Pollution Act (OPA) is
applicable to waters and wetlands
subject to the CWA, today’s ANPRM
may have implications for persons or
entities subject to the OPA. Examples of
entities potentially regulated include:
Category
Examples of
potentially regulated
entities
State/Tribal govern-
State/Tribal agencies
ments or instru-
or instrumentalities
mentalities,
that discharge or
spill pollutants into
waters of the U.S.
Local governments or
Local governments or
Instrumentalities,
instrumentalities
that discharge or
spill pollutants into
waters of the U.S.
Federal government
Federal government
agencies or instru-
agencies or instru-
mentalities
mentalities that dis-
charge or spill pol-
lutants into waters
of the U.S.
lnclustnal, commer-
Industrial, commer-
cial, or agricultural
cial, or agricultural
entities.
entities that dis-
charge or spill pol-
lutants into waters
of the U.S.
Land developers and
Land developers and
landowners
landowners that
discharge or spill
pollutants into wa-
ters of the U.S.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities that are
likely to be regulated by a rulemaking
based on this ANPRM. This table lists
the types of entities that we are now
aware of that could potentially be
regulated. Other types of entities not
listed in the table could also be
regulated. To determine whether your
organization or its activities could be
regulated, you should carefully examine
the discussion in this ANPRM. If you
have questions regarding the
applicability of this action to a
particular entity, consult one of the
persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
B. How Can I Get Copies of This
Document and Other Related
Information?
1. Docket. The agencies have
established an official public docket for
this action under Docket ID No. OW—
2002—0050. The official public docket
consists of the documents specifically
referenced in this ANPRM, any public
comments received, and other
information related to this ANPRM.
Although a part of the official docket,
the public docket does not include
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. The official public
docket is the collection of materials that
is available for public viewing at the
Water Docket in the EPA Docket Center,
(EPA/DC) EPA West, Room B102, 1301
Constitution Ave., NW., Washington,
DC. The EPA Docket Center Public
Reading Room is open from 8:30 am. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566—1744, and the telephone
number for the Water Docket is (202)
566—2426. You may have to pay a
reasonable fee for copying.
2. Electronic Access. You may access
this Federal Register document
electronically through the EPA Internet
under the Federal Register listings at
http.//www.epa.gov/fedrgstr/.
An electronic version of the public
docket is available through EPA’s
electronic public docket and comment
system, EPA Dockets. You may use EPA
Dockets at http://www.epa.gov/edocket
to submit or view public comments,
access the index listing of the contents
of the official public docket, and to
access those documents in the public
docket that are available electronically.
Once in the system, select search, then
key in the appropriate docket
identification number.
Certain types of information will not
be placed in the EPA Dockets.
Information claimed as CE! and other
information whose disclosure is
restricted by statute, which is not
included in the official public docket,
will not be available for public viewing
in EPA’s electronic public docket. EPA’s
policy is that copyrighted material will
not be placed in EPA’s electronic public
docket but will be available only in
printed, paper form in the official public
docket. Although not all docket
materials may be available
electronically, you may still access any
of the publicly available docket
materials through the docket facility
identified in l.B.1.
For those who submit public
comments, it is important to note that
EPA’s policy is that public comments,
whether submitted electronically or i”
paper, will be made available for put
viewing in EPA’s electronic public
docket as EPA receives them and
without change, unless the comment
contains copyrighted material, CBI, or
other information whose disclosure is
restricted by statute. When EPA
identifies a comment containing
copyrighted material, EPA will provide
a reference to that material in the
version of the comment that is placed in
EPA’s electronic public docket. The
entire printed comment, including the
copyrighted material, will be available
in the public docket.
Public comments submitted on
computer disks that are mailed or
delivered to the docket will be
transferred to EPA’s electronic public
docket. Public comments that are
mailed or delivered to the Docket will
be scanned and pla ced in EPA’s
electronic public docket. Where
practical, physical objects will be
photographed, and the photograph will
be placed in EPA’s electronic public
docket along with a brief description
written by the docket staff.
C. How and To Whom DoISubmit
Comments?
You may submit comments
electronically, by mail, or through har
delivery/courier. To ensure proper
receipt by EPA, identify the appropriate
docket identification number (OW—
2002—0050) in the subject line on the
first page of your comment. Please
ensure that your comments are
submitted within the specified comment
period. Comments received after the
close of the comment period will be
marked late. The agencies are not
required to consider these late
comments.
1. Electronically. If you submit an
electronic comment as prescribed
below, EPA recommends that you
include your name, mailing address,
and an e-mail address or other contact
information in the body of your
comment. Also include this contact
information on the outside of any disk
or CD ROM you submit, and in any
cover letter accompanying the disk or
CD ROM. This ensures that you can be
identified as the submitter of the
comment and allows EPA to contact you
in case EPA cannot read your comment
due to technical difficulties or needs
further information on the substance of
your comment. EPA’s policy is that EPA
will not edit your comment, and any
identifying or contact information
provided in the body of a comment wii
be included as part of the comment that -
is placed in the official public docket,

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Federal Register / Vol. 68, No. 10 / Wednesday, January 15, 2003 / Proposed Rules
1993
and made available in EPA’s electronic
public docket. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
the agencies may not be able to consider
your comment.
i. EPA Dockets. Your use of EPA’s
electronic public docket to submit
comments to EPA electronically is
EPA’s preferred method for receiving
comments. Go directly to EPA Dockets
at http://www.epa gov/edocket, and
follow the online instructions for
submitting comments. Once in the
system, select search, and then key in
Docket ID No. OW—2002--0050. The
system is an anonymous access system,
which means EPA will not know your
identity, e-mail address, or other contact
information unless you provide it in the
body of your comment.
ii. E-mail. Comments may be sent by
electronic mail (e-mail) to
C WA waters@epa.gov, Attention Docket
ID No. OW—2002—0050. In contrast to
EPA’s electronic public docket, EPA’s e-
mail system is not an anonymous access
system. If you send an e-mail comment
directly to the Docket without going
through EPA’s electronic public docket,
EPA’s e-mail system automatically
captures your e-mail address. E-mail
addresses that are automatically
captured by EPA’s e-mail system are
included as part of the comment that is
placed in the official public docket, and
made available in EPA’s electronic
public docket.
iii. Thsk or CD ROM. You may submit
comments on a disk or CD ROM that
you mail to the mailing address
identified in l.C.2. These electronic
submissions will be accepted in
WordPerfect or ASCII file format. Avoid
the use of special characters and any
form of encryption.
2. ByMail Send four copies of your
comments to: Water Docket,
Environmental Protection Agency,
Mailcode 4101T, 1200 Pennsylvania
Ave., NW, Washington, DC 20460,
Attention Docket ID No. OW—2002—
0050
3. By Hand Delivery or Courier.
Deliver your comments to: Water
Docket, EPA Docket Center, EPA West,
Room 8102, 1301 Constitution Avenue,
NW, Washington, DC, Attention Docket
ID No OW—2002—0050. Such deliveries
are only accepted during the Docket’s
normal hours of operation as identified
in 1.8.1.
D. What Should I Consider as I Prepare
My Comments 7
You may find the following
suggestions helpful for preparing your
comments.
a. Explain your views as clearly as
possible.
b. Describe any assumptions that you
used
c. Provide any technical information
and/or data on which you based your
views.
d. If you estimate potential burden or
costs, explain how you arrived at your
estimate.
e. Provide specific examples to
illustrate your concerns.
f. Offer alternatives.
g. Make sure to submit your
comments by the comment period
deadline identified.
h. To ensure proper receipt by EPA,
identify the appropriate docket
identification number in the subject line
on the first page of your response. It
would also be helpful if you provided
the name, date, and Federal Register
citation related to your comments
II. The Importance of Updating the
Regulations
The agencies have not engaged in a
review of the regulations with the
public concerning CWA jurisdiction for
some time. This ANPRM will help
ensure that the regulations are
consistent with the CWA and the public
understands what waters are subject to
CWA jurisdiction. The goal of the
agencies is to develop proposed
regulations that will further the public
interest by clarifying what waters are
subject to CWA jurisdiction and
affording full protection to these waters
through an appropriate focus of Federal
and State resources consistent with the
CWA. It is appropriate to review the
regulations to ensure that they are
consistent with the S WANCC decision
SWANCC eliminates CWA jurisdiction
over isolated waters that are intrastate
and non-navigable, where the sole basis
for asserting CWA jurisdiction is the
actual or potential use of the waters as
habitat for migratory birds that cross
State lines in their migrations. SWANCC
also calls into question whether CWA
jurisdiction over isolated, intrastate,
non-navigable waters could now be
predicated on the other factors listed in
the “Migratory Bird Rule” or the other
rationales of 33 CFR 328.3(a)(3)(i)—(iii)
Although the SWANCC case itself
specifically involves section 404 of the
CWA, the Court’s decision may also
affect the scope of regulatory
jurisdiction under other provisions of
the CWA, including programs under
sections 303, 311, 401, and 402. Under
each of these sections, the relevant
agencies have jurisdiction over . waters
of the United States.” The agencies will
consider the potential implications of
the rulemaking for these other sections.
• Section 404 dredged and fill
material permit program. This program
establishes a permitting system to
regulate discharges of dredged or fill
material into waters of the United
States.
• Section 303 water quality standards
program Under this program, States
and authorized Indian Tribes establish
water quality standards for navigable
waters to “protect the public health or
welfare” and “enhance the quality of
water”, “taking into consideration their
use and value for public water supplies,
propagation of fish and wildlife,
recreational purposes, and agriculture,
industrial, and other purposes, and also
taking into consideration their use and
value for navigation.”
• Section 311 spill program and the
Oil Pollution Act (OPA). Section 311 of
the CWA addresses pollution from both
oil and hazardous substance releases.
Together with the Oil Pollution Act, it
provides EPA and the U.S. Coast Guard
with the authority to establish a
program for preventing, preparing for,
and responding to spills that occur in
navigable waters of the United States.
• Section 401 State water-quality
certification program Section 401
provides that no Federal permit or
license for activities that might result in
a discharge to navigable waters may be
issued unless a section 401 water-
quality certification is obtained from or
waived by States or authorized Tribes.
• Section 402 National Pollutant
Discharge Elimination System (NPDES)
permitting program. This program
establishes a permitting system to
regulate point source discharges of
pollutants (other than dredged or fill
material) into waters of the United
States.
III. Legislative and Regulatory Context
The Federal Water Pollution Control
Act Amendments, now known as the
Clean Water Act (CWA), was enacted in
1972. In the years since its enactment,
the scope of waters regulated under the
CWA has been discussed in regulations,
legislation, and judicial decisions.
The CWA was intended to “restore
and maintain the chemical, physical,
and biological integrity of the Nation’s
waters.” 33 U.S.C. 1251(a). Its specific
provisions were designed to improve
upon the protection of the Nation’s
waters provided under earlier statutory
schemes such as the Rivers and Harbors
Act of 1899 (“RI-lA”) (33 U.S.C. 403,
407, 411) and the Federal Water
Pollution Control Act of 1948 (62 Stat.
1155) and its subsequent amendments
through 1970. In doing so, Congress
recognized “the primary responsibilities
and rights of States to prevent, reduce,

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and eliminate pollution, to plan the
development and use (including
restoration, preservation, and
enhancement) of land and water
resources* * * 33USC1251(b)
The jurisdictional scope of the CWA
is “navigable waters,” defined in the
statute as “waters of the United States,
including the territorial seas.” CWA
section 502(7), 33 U.S.C. 1362(7). The
existing CWA section 404 regulations
define “waters of the United States” as
follows:
(1) All waters which are currently
used, or were used in the past, or may
be susceptible to use in interstate or
foreign commerce, including all waters
which are subject to ebb and flow of the
tide;
(2) All interstate waters including
interstate wetlands;
(3) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or
natural ponds, the use, degradation or
destruction of which could affect
interstate or foreign commerce
including any such waters:
(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
(iii) which are used or could be used
for industrial purposes by industries in
interstate commerce.
(4) All impoundments of waters
otherwise defined as waters of the
United States under the definition;
(5) Tributaries of waters identified in
paragraphs (a)(1)—(4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other
than waters that are themselves
wetlands) identified in paragraphs
(a)(1)—(6) of this section.
(8) Waters of the United States do not
include prior converted cropland
Waste treatment systems, including
treatment ponds or lagoons designed to
meet the requirements of CWA (other
than cooling ponds ...) are not waters of
the United States. 40 CFR.230.3(s); 33
CFR 328.3(a).
Counterpart and substantively similar
regulatory definitions appear at 40 CFR
110.1, 112.2, 116.3, 117.1, 122.2, 232.2,
300.5, part 300 App. E. 302.3 and 401.11
(hereafter referred to as “the counterpart
definitions”).
In regulatory preambles, both the
Corps and EPA provided examples of
additional types of links to interstate
commerce which might serve as a basis
under 40 CFR 230.3(a)(3) and 33 CFR
328.3(a)(3) for establishing CWA
jurisdiction over intrastate waters which
were not part of the tributary system or
their adjacent wetlands. These included
use of waters (1) as habitat by birds
protected by Migratory Bird Treaties or
which cross State lines, (2) as habitat for
endangered species, or (3) to irrigate
crops sold in commerce. 51 FR 41217
(November 13, 1986). 53 FR 20765 (June
6, 1988). These examples became
known as the “Migratory Bird Rule,”
even though the examples were neither
a rule nor entirely about birds. The
Migratory Bird Rule later became the
focus of the SWANCC case.
IV. Potential Natural Resource
Implications
To date, some quantitative studies
and anecdotal data provide early
estimates of potential resource
implications of the SWANCC decision.
One of the purposes of the ANPRM is
to solicit additional information, data,
or studies addressing the extent of
resource impacts to isolated, intrastate,
non-navigable waters.
Non-navigable intrastate isolated
waters occur throughout the country.
Their extent depends on a variety of
factors including topography. climate,
and hydrologic forces. Preliminary
assessments of potential resource
impacts vary widely depending on the
scenarios considered. See, e.g., Ducks
Unlimited, “The SWANCC Decision:
Implications for Wetlands and
Waterfowl” (September 2001) (available
at http://www.ducks.org/conservation/
404_report asp) ; ASWM, “SWANCC
Decision and the State Regulation of
Wetlands,” (June 2001) (available at
http://www.aswm.org).
There is an extensive body of
knowledge about the functions and
values of wetlands, which include flood
risk reduction, water quality
improvement, fish and wildlife habitat.
and maintenance of the hydrologic
integrity of aquatic ecosystems. The
ANPRM seeks information regarding the
functions and values of wetlands and
other waters that may be affected by the
issues discussed in this ANPRM.
V. Solicitation of Comments
The agencies are seeking comment on
issues related to the jurisdictional status
of isolated waters under the CWA which
the public wishes to call to our
attention. To assist the public in
considering these issues, the following
discussion and specific questions are
presented. The agencies will carefully
consider the responses received to this
ANPRM in determining what regulatory
changes may be appropriate and the
issues to be addressed in a proposed
rulemaking to clarify CWA jurisdiction.
The SWANCC holding eliminates
CWA jurisdiction over isolated.
intrastate, non-navigable waters whel
the sole basis for asserting CWA
jurisdiction is the actual or potential use
of the waters as habitat for migratory
birds that cross State lines in their
migrations. 531 U.S. at 174 (“We hold
that 33 CFR 328.3(a)(3) (1999), as
clarified and applied to petitioner’s
balefill site pursuant to the “Migratory
Bird Rule,” 51 FR 41217 (1986), exceeds
the authority granted to respondents
under section 404(a) of the CWA.”). The
agencies seek comment on the use of the
factors in 33 CFR 328.3(a)(3)(i)—(iii) or
the counterpart regulations in
determining CWA jurisdiction over
isolated, intrastate, non-navigable
waters.
The agencies solicit comment from
the public on the following issues:
(1) Whether, and, if so, under what
circumstances, the factors listed in 33
CFR 328.3(a)(3)(i)—(iii) (i.e., use of the
water by interstate or foreign travelers
for recreational or other purposes, the
presence of fish or shellfish that could
be taken and sold in interstate
commerce, the use of the water for
industrial purposes by industries in
interstate commerce) or any other
factors provide a basis for determininn
CWA jurisdiction over isolated,
intrastate, non-navigable waters?
(2) Whether the regulations should
define “isolated waters,” and if so, what
factors should be considered in
determining whether a water is or is not
isolated for jurisdictional purposes?
Solicitation of Information
In answering the questions set forth
above, please provide, as appropriate,
any information (e g , scientific and
technical studies and data, analysis of
environmental impacts, effects on
interstate commerce, other impacts, etc.)
supporting your views, and specific
recommendations on how to implement
such views. Additionally, we invite
your views as to whether any other
revisions are needed to the existing
regulations on which waters are
jurisdictional under the CWA. As noted
elsewhere in this document, the
agencies are also soliciting data and
information on the availability and
effectiveness of other Federal or State
programs for the protection of aquatic
resources, and on the functions and
values of wetlands and other waters that
may be affected by the issues discussed
in this ANPRM.
VI. Related Federal and State
Authorities
The SWANCC decision addresses
CWA jurisdiction, and other Federal or

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State laws and programs may still
protect a water and related ecosystem
even if that water is no longer
jurisdictional under the CWA following
SWANCC. The Federal government
remains committed to wetlands
protection through the Food Security
Act’s Swampbuster requirements and
Federal agricultural program benefits
and restoration through such Federal
programs as the Wetlands Reserve
Program (administered by the U.S.
Department of Agriculture), grant
making programs such as Partners in
Wildlife (administered by the Fish and
Wildlife Service), the Coastal Wetlands
Restoration Program (administered by
the National Marine Fisheries Service),
the State Grant, Five Star Restoration,
and National Estuary Programs
(administered by EPA), and the
Migratory Bird Conservation
Commission (composed of the
Secretaries of Interior and Agriculture,
the Administrator of EPA and Members
of Congress).
The S WANCC decision also highlights
the role of States in protecting waters
not addressed by Federal law. Prior to
SWANCC, fifteen States had programs
that addressed isolated wetlands. Since
SWANCC, additional States have
considered, and two have adopted,
legislation to protect isolated waters.
The Federal agencies have a number of
initiatives to assist States in these efforts
to protect wetlands. For example, EPA’s
Wetland Program Development Grants
are available to assist States, Tribes, and
local governments for building their
wetland program capacities. In addition,
the U.S. Department of Justice and other
Federal agencies co-sponsored a
national wetlands conference with the
National Governors Association Center
for Best Practices, National Conference
of State Legislatures, the Association of
State Wetlands Managers, and the
National Association of Attorneys
General. This conference and the
dialogue that has ensued will promote
close collaboration between Federal
agencies and States in developing,
implementing, and enforcing wetlands
protection programs. EPA also is
providing funding to the National
Governors Association Center for Best
Practices to assist States in developing
appropriate policies and actions to
protect intrastate isolated waters
In light of this, the agencies solicit
information and data from the general
public, the scientific community, and
Federal and State resource agencies on
the availability and effectiveness of
pther Federal or State programs for the
protection of aquatic resources and
practical experience with their
implementation. The agencies are also
interested in data and comments from
State and local agencies on the effect of
no longer asserting jurisdiction over
some of the waters (and discharges to
those waters) in a watershed on the
implementation of Total Maximum
Daily Loads (TMDLs) and attainment of
water quality standards.
VII. Statutory and Executive Order
Reviews
A. Executive Order 12866
Under Executive Order 12866 (58 FR
51735, October 4, 1993), EPA and the
Corps must determine whether the
regulatory action is “significant” and
therefore subject to review by the Office
of Management and Budget (0MB) and
the requirements of the Executive Order.
The Order defines “significant
regulatory action” as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof, or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order
Pursuant to the terms of Executive
Order 12866, it has been determined
that this Advanced Notice of Proposed
Rulemaking is a “significant regulatory
action” in light of the provisions of
paragraph (4) above as it raises novel
legal or policy issues. As such, this
action was submitted to 0MB for
review Changes made in response to
0MB suggestions or recommendations
will be documented in the public
record.
B. National Environmental Policy Act
As required by the National
Environmental Policy Act (NEPA). the
Corps prepares appropriate
environmental documentation for its
activities affecting the quality of the
human environment. The Corps has
determined that today’s Advance Notice
of Proposed Rulemaking merely solicits
early comment on issues associated
with the scope of waters that are
properly subject to the CWA, and
information or data from the general
public, the scientific community, and
Federal and State resource agencies on
the implications of the SWANCC
decision for the protection of aquatic
resources. In light of this, the Corps has
determined that today’s ANPRM does
not constitute a major Federal action
significantly affecting the quality of the
human environment, and thus does not
require the preparation of an
Environmental Impact Statement (EIS).
Dated January 10, 2003
Christine Todd Whitman.
Administrator, Environmental Protection
Agency.
Dated January 10, 2003
R.L. Brownlee,
Acting Assistant Secretary of the Army, (Civ:)
Works), Department oftheArmy.
Note: The following guidance document
will not appear in the Code of Federal
Regulations
Appendix A
Joint Memorandum
Introduction
This document provides clarifying
guidance regarding the Supreme Court’s
decision in Solid Waste Agency of Northern
Cook County v United States Army Corps of
Engineers, 531 U S 159 (2001) (“SWANCC”)
and addresses several legal issues concerning
Clean Water Act (“CWA”) jurisdiction that
have arisen since S WANCC in various factual
scenarios involving federal regulation of
“navigable waters “Because the case law
interpreting S WANCC has developed over
the last two years, the Agencies are issuing
this updated guidance, which supersedes
prior guidance on this issue. The Corps and
EPA are also initiating a rulemaking process
to collect information and to consider
jurisdictional issues as set forth in the
attached ANPRM. Jurisdictional decisions
will be based on Supreme Court cases
including United States v Riverside Bariew
Homes, 474 U.S. 121 (1985) and SWANCC.
regulations, and applicable case law in each
jurisdiction.
Background
In S WANCC, the Supreme Court held that
the Army Corps of Engineers had exceeded
its authority in asserting CWA jurisdiction
pursuant to section 404(a) over isolated,
intrastate, non-navigable waters under 33
C FR 328.3(a)(3), based on their use as
habitat for migratory birds pursuant to
preamble language commonly referred to as
the “Migratory Bird Rule,” 51 FR 41217
(1986). “Navigable waters” are defined in
section 502 of the CWA to mean ‘waters of
the United States, including the territorial
seas.” In SWANCC, the Court determined
that the term “navigable” had significance in
indicating the authority Congress intended to
exercise in asserting CWA jurisdiction 531
US at 172. After reviewing the jurisdictional
scope of the statutory definition of
“navigable waters” in section 502, the Court
concluded that neither the text of the statute
nor its legislative history supported the

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Corps’ assertion of jurisdiction over the
waters involved in S WANCC. Id at 170—171
In S WANCC, the Supreme Court
recognized that “Congress passed the CWA
for the stated purpose of ‘restoring and
maintaining the chemical, physical, and
biological integrity of the Nation’s waters’”
and also noted that “Congress chose to
‘recognize, preserve, and protect the primary
responsibilities and rights of States to
prevent, reduce, and eliminate pollution, to
plan the development and use (including
restoration preservation, and enhancement)
of land and water resources.’” Id at 166—67
(citing 33 U.S.C. 1251(a) and (b)). However,
expressing “serious constitutional and
federalism questions” raised by the Corps’
interpretation of the CWA, the Court stated
that “where an administrative interpiytation
of a statute invokes the outer limits of
Congress’ power, we expect a clear indication
that Congress intended that result.’ Id at
174. 172. Finding “nothing approaching a
clear statement from Congress that it
intended section 404(a) to reach an
abandoned sand and gravel pit” (id. at 174),
the Court held that the Migratory Bird Rule,
as applied to petitioners’ property, exceeded
the agencies’ authority under section 404(a)
Id at 174.
The Scope of CWA Jurisdiction After
SWANCC
Because S WANCC limited use of 33 CFR
§ 328 3(a)(3) as a basis of jurisdiction over
certain isolated waters, it has focused greater
attention on CWA jurisdiction generally, and
specifically over tributaries to jurisdictional
waters and over wetlands that are “adjacent
wetlands” for CWA purposes
As indicated, section 502 of the CWA
defines the term navigable waters to mean
“waters of the United States, including the
territorial seas “The Supreme Court has
recognized that this definition clearly
includes those waters that are considered
traditional navigable waters In S WANCC, the
Court noted that while “the word ‘navigable’
in the statute was of ‘limited import’”
(quoting Riverside, 474 U.S 121 (1985)), “the
term ‘navigable’ has at least the import of
showing us what Congress had in mind as its
authority for enacting the CWA: traditional
jurisdiction over waters that were or had
been navigable in fact or which could
reasonably be so made “531 U S at 172. In
addition, the Court reiterated in SWANCC
that Congress evidenced its intent to regulate
“at least some waters that would not be
deemed ‘navigable’ under the classical
understanding of that term “ SWANCCat 171
(quoting Riverside, 474 U S. at 133) Relying
on that intent, for many years, EPA and the
Corps have interpreted their regulations to
assert CWA jurisdiction over non-navigable
tributaries of navigable waters and their
adjacent wetlands Courts have upheld the
view that traditional navigable waters and,
generally speaking, their tributary systems
(and their adjacent wetlands) remain subject
to CWA jurisdiction.
Several federal district and appellate courts
have addressed the effect of S WANCC on
CWA jurisdiction, and the case law on the
precise scope of federal CWA jurisdiction in
light of SWANCC is still developing. While
a majority of cases hold that SWANCC
applies only to waters that are isolated,
intrastate and non-navigable, several courts
have interpreted S WANCC’s reasoning to
apply to waters other than the isolated waters
at issue in that case. This memorandum
attempts to add greater clarity concerning
federal CWA jurisdiction following SWANCC
by identifying specific categories of waters,
explaining which categories of waters are
jurisdictional or non-jurisdictional, and
pointing out where more refined factual and
legal analysis will be required to make a
jurisdictional determination
Although the SWANCC case itself
specifically involved Section 404 of the
CWA, the Court’s decision may affect the
scope of regulatory jurisdiction under other
provisions of the CWA as well, including the
Section 402 NPDES program, the Section 311
oil spill program, water quality standards
under Section 303, and Section 401 water
quality certification. Under each of these
sections. the relevant agencies have
jurisdiction over “waters of the United
States.” CWA section 502(7).
This memorandum does not discuss the
exact factual predicates that are necessary to
establish jurisdiction in individual cases. We
recognize that the field staff and the public
could benefit from additional guidance on
how to apply the applicable legal principles
to individual cases 1 Should questions arise
concerning CWA jurisdiction, the regulated
community should seek assistance from the
Corps and EPA.
A Isolated. Intrastate Waters That are Non-
Navigable
SWANCC squarely eliminates CWA
jurisdiction over isolated waters that are
intrastate and non-navigable, where the sole
basis for asserting CWA jurisdiction is the
actual or potential use of the waters as
habitat for migratory birds that cross state
lines in their migrations 531 U.S at 174
(“We hold that 33 CFR § 328.3(a)(3) (1999),
as clarified and applied to petitioner’s balefill
site pursuant to the ‘Migratory Bird Rule,’ 51
FR 41217 (1986), exceeds the authority
granted to respondents under § 404(a) of the
CWA.”). The EPA and the Corps are now
precluded from asserting CWA jurisdiction in
such situations, including over waters such
as isolated, non-navigable, intrastate vernal
pools, playa lakes and pocosins. SWANCC
also calls into question whether CWA
jurisdiction over isolated, intrastate, non-
navigable waters could now be predicated on
the other factors listed in the Migratory Bird
‘The CWA provisions and regulations described
in this document contain legally binding
requirements This document does not substitute
for those provisions or regulations. nor is it a
regulation itself Ii does not impose legally binding
requirements on EPA. the Corps, or the regulated
community, and may not apply to a particular
situation depending on the circumstances Any
decisions regarding a particular water will be based
on the applicable statutes. regulations, and case
law Therefore, interested person are free to raise
questions and objections about the appropriateness
of the application of this guidance to a particular
situation, and EPA and/or the Corps will consider
whether or not the recommendations or
interpretations of this guidance are appropriate in
that Situation based on the law and regulations
Rule, 51 FR 41217 (i e., use of the water as
habitat for birds protected by Migratory Bi-
Treaties; use of the water as habitat for
Federally protected endangered or threate
species, or use of the water to irrigate crops
sold in interstate commerce)
By the same token, in light of S WANCC. it
is uncertain whether there remains any basis
for jurisdiction under the other rationales of
§ 328 3(a)(3)(i)—(iii) over isolated, non-
navigable, intrastate waters (i.e., use of the
water by interstate or foreign travelers for
recreational or other purposes, the presence
of fish or shellfish that could be taken and
sold in interstate commerce; use of the water
for industrial purposes by industries in
interstate commerce). Furthermore, within
the states comprising the Fourth Circuit,
CWA jurisdiction under 33 CFR § 328 3(a)(3)
in its entirety has been precluded since 1997
by the Fourth Circuit’s ruling in United
States v. Wilson, 133 F 3d 251, 257 (4th Cir.
1997) (invalidating 33 CFR § 328.3(a)(3)).
In view of S WANCC, neither agency will
assert CWA jurisdiction over isolated waters
that are both intrastate and non-navigable,
where the sole basis available for asserting
CWA jurisdiction rests on any of the factors
listed in the “Migratory Bird Rule.” In
addition, in view of the uncertainties after
SWANCC concerning jurisdiction over
isolated waters that are both intrastate and
non-navigable based on other grounds listed
in 33 CFR § 328.3(a)(3)(i)—(iii), field staff
should seek formal project-specific
Headquarters approval prior to asserting
jurisdiction over such waters, including
permitting and enforcement actions.
B Traditional Navigable Waters
As noted, traditional navigable waters are
jurisdictional Traditional navigable waters
are waters that are subject to the ebb and flow
of the tide, or waters that are presently used,
or have been used in the past, or may be
susceptible for use to transport Interstate or
foreign commerce. 33 CFR § 328 3(a)(1) ;
United Stales v. Appalachian Elec. Power
Co., 311 U.S. 377, 407—408 (1940) (water
considered navigable, although not navigable
at present but could be made navigable with
reasonable improvements); Economy Light &
Power Co. v United States, 256 U.S. 113
(1911) (dams and other structures do not
eliminate navigability), S WANCC. 531 U.s. at
172 (referring to traditional jurisdiction over
waters that were or had been navigable in
fact or which could reasonably be so made) 2
In accord with the analysis in SWANCC.
waters that fall within the definition of
traditional navigable waters remain
jurisdictional under the CWA Thus, isolated,
intrastate waters that are capable of
supporting navigation by watercraft remain
subject to CWA jurisdiction after SWANCC if
they are traditional navigable waters, i.e, if
they meet any of the tests for being navigable-
in-fact. See, eg. Colvin v United States 181
F Supp. 2d 1050 (CD Cal 2001) (isolated
2 These traditional navigable waters are not
limited to those regulated under Section 10 of th
Rivers and Harbors Act oF 1899, traditional
navigable waters include waters which. atthougl
used. susceplibale to usa, or historically used, to
transport goods or people in commerce, do not Form
part of a Continuous wateborne highway

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1997
man-made water body capable of boating
found to be “water of the United States”)
Adjacent Wetlands
(1) Wetlands Adjacent to Traditional
Navigable Waters
CWA jurisdiction also extends to wetlands
that are adjacent to traditional navigable
waters The Supreme Court did not disturb
its earlier holding in Riverside when it
rendered its decision in SWANCC Riverside
dealt with a wetland adjacent to Black Creek,
a traditional navigable water. 474 U.S. 121
(1985), see also S WANCC, 531 U S. at 167
(“liln Riverside, we held that the Corps had
section 404(a) jurisdiction over wetlands that
actually abutted on a navigable waterway”)
The Court in Riverside found that “Congress’;
concern for the protection of water quality
and aquatic ecosystems indicated its intent to
regulate wetlands ‘inseparably bound up
with’” jurisdictional waters 474 U S at 134
Thus, wetlands adjacent to traditional
navigable waters clearly remain jurisdictional
after SWANCC The Corps and EPA currently
define ‘adjacent’ as “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 CFR § 328 3(b), 40 CFR
§ 230 3(b) The Supreme Court has not itself
defined the term “adjacent,” nor stated
whether the basis for adjacency is geographic
proximity or hydrology
(2) Wetlands Adjacent to Non-Navigable
IWaters
The reasoning in Riverside, as followed by
a number of post-SWANCC courts, supports
jurisdiction over wetlands adjacent to non-
navigable waters that are tributaries to
navigable waters Since SWANCC, some
courts have expressed the view that
SWANCC raised questions about adjacency
jurisdiction, so that wetlands are
jurisdictional only if they are adjacent to
navigable waters See, e g, Rice v Harken,
discussed infro
D Tributaries
A number of court decisions have held that
SWANCC does not change the principle that
CWA jurisdiction extends to tributaries of
navigable waters. See. e g. Headwaters v.
Talent Irrigation Dist, 243 F 3d 526, 534 (9th
Cir 2001) (“Even tributaries that flow
intermittently are ‘waters of the United
States’ “), United States v Interstate Gen Co,
No 01—4513, slip op at 7, 2002 WL 1421411
(4th Cir July 2, 2002), offing 152 F Supp
2d 843 (D Md 2001) (refusing to grant writ
of coram nobis, rejecting argument that
SWANCC eliminated jurisdiction over
wetlands adjacent to non-navigable
tributaries), United States v. Knlich, 393F 3d
784 (7th Cir 2002) (rejecting motion to vacate
consent decree, finding that SWANCC did
not alter regulations interpreting “waters of
the U S.” other than 33 C FR § 328 3(a)(3)),
Community Ass for Restoration of the Env’t
v Henry Bosma Dairy, 305 F 3d 953 (9th Cir
D002) (drain that flowed into a canal that
flows into a river is jurisdictional), Idaho
Rural Councilv Bosmo,143F Supp 2d
1169, 1178 ID Idaho 2001) (“waters of the
United States include waters that are
tributary to navigable waters”), Aiello v
Town of Brookhaven. 136 F Supp 2d 81, 118
(E D. N.Y. 2001) (non-navigable pond and
creek determined to be tributaries of
navigable waters, and therefore “waters of
the United States under the CWA”)
Jurisdiction has been recognized even when
the tributaries in question flow for a
significant distance before reaching a
navigable water or are several times removed
from the navigable waters (i e, “tributaries of
tributaries”) See, e g. United States v.
Lamplight Equestrian Ctr, No. 00 C 6486,
2002 WL 360652, at *8 (ND. Ill. Mar. 8. 2002)
(“Even where the distance from the tributary
to the navigable water is significant, the
quality of the tributary is still vital to the
quality of navigable waters”), United States
v. Budoy. 138 F. Supp 2d 1282, 1291—92 (D
Mont. 2001) (“water quality of tributaries
* * * distant though the tributaries may be
from navigable streams, is vital to the quality
of navigable waters”), United States v. Rueth
Dev Cc, No 2 96CV540, 2001 WL 17580078
(N D Ind Sept 26, 2001) (refusing to reopen
a consent decree in a CWA case and
determining that jurisdiction remained over
wetlands adjacent to a non-navigable (man.
made) waterway that flows into a navigable
water)
Some courts have interpreted the reasoning
in S WANCC to potentially circumscribe
CWA jurisdiction over tributaries by finding
CWA jurisdiction attaches only where
navigable waters and waters immediately
adjacent to navigable waters are involved.
Rice v. Harken is the leading case taking the
narrowest view of CWA jurisdiction after
SWANCC. 250 F.3d 264 (5th Cir. 2001)
(rehearing denied). Harken interpreted the
scope of “navigable waters” under the Oil
Pollution Act (OPA) The Fifth Circuit relied
on SWANCCto conclude “it appears that a
body of water is subject to regulation under
the CWA if the body of water is actually
navigable or is adjacent to an open body of
navigable water” 250 F 3d at 269 The
analysis in Harken implies that the Fifth
Circuit might limit CWA jurisdiction to only
those tributaries that are traditionally
navigable or immediately adjacent to a
navigable water
A few post -S WANCC district court
opinions have relied on Horken or reasoning
similar to that employed by the Harken court
to limit jurisdiction See, e g, United States
v Rapanos, 190 F. Supp 2d 1011(E D Mich
2002) (government appeal pending) (“the
Court finds as a matter of law that the
wetlands on Defendant’s property were not
directly adjacent to navigable waters, and
therefore, the government cannot regulate
Defendant’s property “); United States v
Needham, No 6 0l—CV—01897, 2002 WL
1162790 (W.D. La Jan 23. 2002) (government
appeal pending) (district court affirmed
finding of no liability by bankruptcy court for
debtors under OPA for discharge of oil since
drainage ditch into which oil was discharged
was found to be neither a navigable water nor
adjacent to an open body of navigable water)
See alsoUnited States v. Newdunn, 195 F
Supp. 2d 751 (E D Va. 2002) (government
appeal pending) (wetlands and tributaries not
contiguous or adjacent to navigable waters
are outside CWA jurisdiction). United States
v RGM Corp , 222 F. Supp 2d 780 (E.D. Va
2002) (government appeal pending)
(wetlands on property not contiguous to
navigable river and, thus, jurisdiction not
established based upon adjacency to
navigable water)
Another question that has arisen is
whether CWA jurisdiction is affected when a
surface tributary to jurisdictional waters
flows for some of its length through ditches,
culverts, pipes, storm sewers, or similar
manmade conveyances. A number of courts
have held that waters with manmade features
are jurisdictional For example, in
Head waters Inc v Talent Irrigation District,
the Ninth Circuit held that manmade
irrigation canals that diverted water from one
set of natural streams and lakes to other
streams and creeks were connected as
tributaries to waters of the United States, and
consequently fell within the purview of CWA
jurisdiction 243 F.3d at 533—34. However,
some courts have taken a different view of
the circumstances under which man-made
conveyances satisfy the requirements for
CWA jurisdiction See. eg., Newdunn. 195 F.
Supp. 2d at 765 (government appeal pending)
(court determined that Corps had failed to
carry its burden of establishing CWA
jurisdiction over wetlands from which
surface water had to pass through a spur
ditch, a series of man-made ditches and
culverts as well as non-navigable portions of
a creek before finally reaching navigable
waters).
A number of courts have held that waters
connected to traditional navigable waters
only intermittently or ephemerally are
subject to CWA jurisdiction The language
and reasoning in the Ninth Circuit’s decision
in Heodwot err Inc v Talent Irrigation
District indicates that the intermittent flow of
waters does not affect CWA jurisdiction. 243
F 3d at 534 (“Even tributaries that flow
intermittently are ‘waters of the United
States.’ “) Other cases, however, have
suggested that S WANCC eliminated from
CWA jurisdiction some waters that flow only
intermittently See. e g.. Newdunn, 195 F.
Supp 2d at 764, 767—68 (government appeal
pending) (ditches and culverts with
intermittent flow not jurisdictional)
A factor in determining jurisdiction over
waters with intermittent flows is the
presence or absence of an ordinary high
water mark (OHWM). Corps regulations
provide that, in the absence of adjacent
wetlands, the lateral limits of non-tidal
waters extend to the OHWM (33 CFR
328 4(c)(1)) One court has interpreted this
regulation to require the presence of a
continuous OHWM United States v RGM,
222 F Supp 2d 780 (E D. Va. 2002)
(government appeal pending)
Conclusion
In light of S WANCC, field staff should not
assert CWA jurisdiction over isolated waters
that are both intrastate and non-navigable.
where the sole basis available for asserting
CWA jurisdiction rests on any of the factors
listed in the “Migratory Bird Rule.” In
addition, field staff should seek formal
project-specific HQ approval prior to
asserting jurisdiction over waters based on

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1998
Federal Register/Vol. 68, No. 10/Wednesday, January 15, 2003/Proposed Rules
other f ctors listed in 33 CFR 328.3(a)(3)(i)—
(iii).
Field staff should continue to assert
jurisdiction over traditional navigable waters
(and adjacent wetlands) and, generally
speaking, their tributary systems (and
adjacent wetlands) Field staff should make
jurisdictional and permitting decisions on a
case-by-case basis considering this guidance,
applicable regulations, and any additional
relevant court decisions Where questions
remain, the regulated community should
seek assistance from the agencies on
questions of jurisdiction
Robert E. Fabricant,
General Counsel, Environmental Protection
Agency.
Steven J. Morello,
General Counsel, Department of the Army
IFR Dcc. 03—960 Filed 1—14—03; 8:45 am]
BILUNG CODE 6560-60-P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[ 1N140—lb; FRL—7433-6J
Approval and Promulgation of
Implementation Plans; Indiana
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The EPA is proposing to
conditionally approve rules submitted
by the State of Indiana as revisions to its
State Implementation Plan(SIP) for
prevention of significant deterioration
(PSD) provisions for attainment areas for
the Indiana Department of
Environmental Management.
In the “Rules and Regulations”
section of this Federal Register, EPA is
approving the State’s request as a direct
final rule without prior proposal
because EPA views this action as
noncontroversial and anticipates no
adverse comments. The rationale for
approval is set forth in the direct final
rule. If EPA receives no written adverse
comments, EPA will take no further
action on this proposed rule. If EPA
receives written adverse comment, we
will publish a timely withdrawal of the
direct final rule in the Federal Register
and inform the public that the rule will
not take effect. In that event, EPA will
address all relevant public comments in
a subsequent final rule based on this
proposed rule. In either event, EPA will
not institute a second comment period
on this action. Any parties interested in
commenting must do so at this time.
DATES: Comments on this action must be
received by February 14, 2003.
ADDRESSES: Written comments should
be sent to: Pamela Blakley, Chief,
Permits and Grants Section (IL/IN/OH),
Air Programs Branch (AR—18J), U.S.
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
A copy of the State’s request is
available for inspection at the above
address.
FOR FURTHER INFORMATION CONTACT: Julie
Capasso, Environmental Scientist,
Permits and Grants Section (IL/IN/OH),
Air Programs Branch, (AR—18J), U.S.
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, telephone (312)
686—1426.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘we,” “us” or “our” are used we mean
the EPA.
I What action is EPA taking today 7
II. Where can I find more information about
this proposal and corresponding direct
final rule’
I. What Action Is EPA Taking Today?
The EPA is proposing to conditionally
approve rules submitted by the State of
Indiana as revisions to its State
Implementation Plan (SIP) for
prevention of significant deterioration
(PSD) provisions for attainment areas for
the Indiana Department of
Environmental Management.
II. Where Can I Find More Information
About This Proposal and
Corresponding Direct Final Rule?
For additional information see the
direct final rule published in the rules
and regulations section of this Federal
Register.
Authority: 42 U.S.C 4201 et seq.
Dated December 18, 2002.
Bharat Mathur,
Acting Regional Administrator, Region 5
IFR Doc 03—617 Filed 1—14—03; 845 am)
BILUNG CODE 6560-50-P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[ MD1 37—3090b; FRL—7420—9]
Approval and Promulgation of Air
Quality Implementation Plans;
Maryland; Revision to the Control of
Volatile Organic Compound Emissions
From Screen Printing and Digital
Imaging
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA proposes to approve tlk
State Implementation Plan (SIP)
revision submitted by the State of
Maryland establishing reasonable
available control technology (RACT) to
limit volatile organic compound (VOC)
emissions from an overprint varnish
that is used in the cosmetic industry.
This action also proposes to add new
definitions and amend certain existing
definitions for terms used in the
regulations. In the Final Rules section of
this Federal Register, EPA is approving
the State’s SIP submittal as a direct final
rule without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A more detailed description
of the state submittal and EPA’s
evaluation are included in a Technical
Support Document (TSD) prepared in
support of this rulemaking action. A
copy of the TSD is available, upon
request, from the EPA Regional Office
listed in the ADDRESSES section of this
document. If no adverse comments are
received in response to this action, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
DATES: Comments must be received in
writing by February 14, 2003.
ADDRESSES: Written comments should
be addressed to Walter Wilkie, Acting
Branch Chief, Air Quality Planning and
Information Services Branch, Mailcode
3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
Copies of the documents relevant to this
action are available for public
inspection during normal business
hours at the Air Protection Division,
U.S. Environmental Protection Agency.
Region I II, 1650 Arch Street,
Philadelphia, Pennsylvania 19103; and
the Maryland Department of the
Environment, 1800 Washington
Boulevard, Suite 705, Baltimore,
Maryland 21230.
FOR FURTHER INFORMATION CONTACT:
Ellen Wentworth, (215) 814—2034, at the
EPA Region III address above, or by e-
mail at wentworth.ellen@epa.gov. Please
note that while questions may be posei’
via telephone and e-mail, formal
comments must be submitted in writin’,,
as indicated in the ADDRESSES section ol
this document.

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Digest of Significant Decisions Addressing SWANCC
1/29/03
A. Decisions of the Courts of Appeals
1. Headwaters Inc. v. Talent Irrigation District , 243 F.3d 526 ( 9 th Cir. March 12, 2001)
Summary :
In the context of a CWA § 402 citizen suit, the Ninth Circuit considered whether an
NPDES permit was required to apply an aquatic herbicide to shallow imgation canals.
The Court concluded that the canals were tnbutaries to other waters of the United States,
and thus themselves were regulated as waters of the United States under the CWA.
Key Passages :
A “stream which contributes its flow to a larger stream or other body of water” is
a tributary. Random House College Dictionary 1402 (rev. ed. 1980). As
tributaries, the canals are “waters of the United States,” and are subject to
the CWA and its permit requirement. . . . Our conclusion is not affected
by the Supreme Court’s recent limitation on the meaning of “navigable
waters” in [ SWANCC].I’
The irrigation canals in this case are not ‘isolated waters” such as those that the
[ Supreme] Court concluded were outside the jurisdiction of the Clean Water Act.
Because the canals receive water from natural streams and lakes, and divert water
to streams and creeks, they are connected as tributaries to other “waters of the
United States.”ZJ
Pollutants need not reach interstate bodies of water immediately or continuously
in order to inflict serious environmental damage.... jIlt makes no
difference that a stream was or was not at the time of the spill discharging
water continuously into a river navigable in the traditional sense. Rather,
as long as the tributary would flow into the navigable body [ under certain
conditions], it is capable of spreading environmental damage and is thus a
“water of the United States” under the Act. !
2. Rice v. Harken Exploration Co. , 250 F.3d 264 ( 5 th Cir. April 25, 2001), reh’g (en banc)
denied , 263 F.3d 167 (June 14, 2001)
Summary :

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In the context of a private cost recovery action under the Oil Pollution Act, which uses
the CWA term “waters of the United States,” the Fifth Circuit held that the plaintiff failed
to meet its burden of proof that: (1) there was a surface hydrological connection between
the creeks and streams in question and the navigable-in-fact Canadian River; and (2) any
oil contamination of covered surface waters had occurred. The Court interpreted a
passage from the Supreme Court’s opinion in SWANCC to imply that water bodies are
regulated under the CWA only if they are “adjacent to an open body of navigable water.”
250 F.3d at 269 (emphasis added). The United States filed a brief as ainicus curiae
supporting panel rehearing, in which it argued that this characterization of SWANCC
was erroneous. Reheanng was denied.
Key Passages :
Under Solid Waste Agency , it appears that a body of water is subject to regulation
under the CWA if the body of water is actually navigable or is adjacent to an open
body of navigable water. See [ SWANCC, 121 S. Ct.] at 680 (uIn order to rule for
respondents here, we would have to hold that the jurisdiction of the Corps extends
to ponds that are not adjacent to open water. But we conclude that the text of the
statute will not allow this.”) ’
It appears from our review of the record that Harken’s various discharges were all
onto dry land. There is no evidence in the record of any discharge of oil directly
into any body of surface water. Instead, the Rices appear to claim that Harken’s
discharges have seeped through the ground into groundwater which has, in turn,
contaminated several bodies of surface water.
The bodies of water the Rices seek to protect are consistently referred to in the
record as intermittent streams which only infrequently contain running water.
There is no detailed or comprehensive description of any of these seasonal creeks
available in the record. There is also very little evidence of the nature of Big
Creek itself. It is described several times in various depositions as a “seasonal
creek” that often has no running water at all. And, apparently, some of the time
that water does flow in it, all the water is underground. There is no detailed
information about how often the creek runs, about how much water flows through
it when it runs, or about whether the creek ever flows directly (above ground) into
the Canadian River. In short, there is nothing in the record that could convince a
reasonable trier of fact that either Big Creek or any of the unnamed other
intermittent creeks on the ranch are sufficiently linked to an open body of
navigable water as to qualify for protection under the OPA. ’
3. United States v. Interstate General Co. , No. 01-4513, 2002 WL 1421411 ( 4 th Cir. July
2, 2002) (unpublished)
Summary :

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After SWANCC was decided, defendants filed a motion to vacate the consent decree in a
CWA § 404 civil enforcement action and a petition for writ of error coram nobis to set
aside the plea agreement in the parallel criminal case. The District Court denied the
motion and petition, and the Court of Appeals affirmed. The Fourth Circuit rejected the
argument that SWANCC restricted CWA jurisdiction to navigable-in-fact waters and
wetlands immediately adjacent thereto.
Key Passages :
[ T]he Corps asserts jurisdiction over the wetlands because they are adjacent, 33
C.F.R. § 328.3(a)(7), to tnbutanes, § 328.3(a)(5), of traditional navigable waters,
§ 328.3(a)(1). The factual predicate for this jurisdiction, specifically, that the St.
Charles wetlands are-adjacent to tributaries of traditionally navigable waters, has
been acknowledged by the parties and this court. For example in Wilson we
concluded that “ [ t]he government demonstrated that water from these lands
flowed in a drainage pattern through ditches, intermittent streams, and creeks,
ultimately joining the Potomac River, a tributary of the Chesapeake Bay.” Wilson ,
133 F.3d at 254-55.
IGC’s argument is that SWANCC eliminated jurisdiction over wetlands adjacent
to waters that are not traditionally navigable even if those waters eventually flow
into traditional navigable waters. According to IGC, SWANCC limited the
Corps’s jurisdiction to (1) traditional navigable waters and (2) wetlands
immediately adjacent to traditional navigable waters
IGC is incorrect. The only clear change in law made by SWANCC is much more
narrow. At issue in SWANCC was the Corps’s jurisdiction over an isolated
intrastate body of water The Corps’s jurisdiction in SWANCC was based
solely on 33 C.F.R. § 328.3(a)(3), the only subsection that covers isolated bodies
of water. The Supreme Court’s actual holding is limited to one particular
application of 33 C.F.R. § 328.3(a)(3) .. . . Because this court had already
invalidated 33 C.F.R. § 328.3(a)(3) in its entirety in United States v. Wilson , 133
F.3d 251(4th Cir. 1997), an opinion issued before either the plea or the consent
decree, SWANCC effected no relevant change in decisional law in this circuit.
4. United States v. Krilich , 303 F.3d 784 ( 7 th Cir. Sept. 9, 2002), petition for cert. filed , 71
U.S.L.W. 3429 (U.S. Dec. 9, 2002) (No. 02-915)
Summary :
The District Court held that SWANCC was not a basis for reopening a 1992 consent
decree in this CWA § 404 civil enforcement action for filling wetlands without a permit,
concluding that the defendants were bound by their stipulations regarding “waters of the
United States.” Knlich appealed. The Seventh Circuit held that the limited holding in
SWANCC did not represent a significant change in the law and therefore it was not an

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abuse of discretion foi- the district court to deny the defendant’s request to reopen the
consent decree.
Key Passages :
[ I]n S WAJS/CC, the Supreme Court merely held that the definition of “waters of the
United States” under 33 C.F.R. § 328.3(a)(3), as clarified by the Migratory Bird
Rule, “exceeds the authority granted to [ the Corps] under § 404(a) of the CWA.”
This limited holding does not represent a significant change in the law such that it
would be equitable to modify or vacate the Consent Decree 2 ’
The SWANCC decision does not establish that the Government exceeded its
authority in entering into the Consent Decree, so Krilich’s claim that the Decree
was void ab inilio fails as well. /
5. Community Ass’n for Restoration of the Env’t v. Henry Bosma Dairy , 305 F.3d 943
( 9 th Cir. Sept. 16, 2002)
Summary :
In the context of a CWA § 402 citizen suit, the Ninth Circuit held that a concentrated
animal feeding operation (CAFO) had violated the CWA by discharging farm waste into
waters of the United States without an NPDES permit. With regard to SWANCC , the
Court concluded that a drain that carried return flows and other waters either directly or
by connecting waterways into the Yakima River was jurisdictional under the CWA.
Key Passages :
In Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 ( 9 th Cir. 2001),
our circuit held that irrigation canals are waters of the United States because they
are tributaries to other waters of the United States. A stream which contributes its
flow to a larger stream or other body of water is a tributary. Id. at 533. Our
circuit reasoned that “ [ e]ven tributaries that flow intermittently are ‘waters of the
United States.’.” Id. at 534. As the district court noted, at three points in the
SYID [ Sunnyside Valley Irrigation Drain], water in the Canal is returned to the
Yakima River. The Yakima River falls within the definition of “waters of the
United States” and no parties dispute this. The SVID takes water out of the
Yakima River at Parker Dam in the Spring of each year. The water runs through
the Canal bringing water to the land serviced by the Canal. Waters runs back to
the Canal through a series of returns composed of water not used by irrigators and
irrigation runoff. . . . [ T]he evidence suggests that J.D. [ Joint Drain] 26.6 drains,
either directly or by connecting waterways, into the Yakima River. Therefore, the
district court did not clearly err in holding that J.D. 26.6 qualifies as a navigable
water under the CWA. 2 ’

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B. Cases on Appeal
1. United States v. Newdunn , 195 F. Supp. 2d 751 (E.D. Va. April 3, 2002), appeal
pending , Nos. 02-1480, 02-1594 ( 4 th Cir.) (argument scheduled for Feb. 25, 2003)
Summary :
After a one-week trial in this CWA § 404 civil enforcement action, the District Court
(Judge Morgan) ruled that wetlands that abut and have a surface hydrological connection
to a drainage ditch, which flows via a culvert to non-navigable portions of a stream
before flowing into traditional navigable waters, are not jurisdictional under the CWA. It
also ruled that the Commonwealth of Virginia’s authority under state lawi ’ was
coextensive with the CWA. Based on these legal conclusions, the District Court
dismissed both the federal and state enforcement actions. Notices of appeal have been
filed with the Fourth Circuit. Key Passages :
The Corps has not carried its burden of factually proving a sufficient connection
between the wetlands on the Property and navigable waters of the United
States. Surface water leaving the Property must pass through miles — via
(1) a spur ditch; (2) the eastern, manmade 1-64 drainage ditch; (3) a
culvert under 1-64; (4) the western, manmade 1-64 drainage ditch (portions
of which were indisputably constructed through “dry lands”); and (5)
non-navigable parts of Stoney Run — before finding navigable waters.
[ W]ere the Court to allow this “surface water connection” to suffice for
junsdiction, any property connected by a drainage pipe or culvert to
navigable waters would fall under the Corps’ jurisdiction, for the Corps
argues that a culvert or storm drainage pipe connection from wetlands to a
tnbutary to navigable waters is a sufficient surface water or hydrological
connection .11’
[ B]y dramatically expanding its own authority through amendments to its own
regulations, the Corps has in effect amended the CWA, thereby usurping
the power of Congress. While expanding its authority through new
regulations may be more expedient than convincing Congress to do so
through properly enacted legislation, it is not permissible for the Corps to
take a shortcut by continually redefining regulatory terminology and
therefore its own junsdiction.i 2 J
****
In the case at bar, only by multiple drainage ditches, a culvert under a highway,
and miles of non-navigable waters, are the wetlands on the Property even

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remotely connected to navigable waters or a water body capable ol use by
the public for purposes of transportation or commerce. Further, the
wetlands on the Property bear no relation to the commerce power over
navigation. Therefore, the Court FINDS that the wetlands on the Property
fall outside the scope of the CWA.Ia’
2. United States v. Rapanos , 190 F. Supp. 2d 1011 (E.D. Mich. Feb. 21, 2002), appeal
pending , No. 02-1377 ( 6 th Cir.)
Summary :
After a remand without opinion from both the Supreme Court and Sixth Circuit in light of
SWANCC , the District Court (Judge Zatkoff) set aside the pre-SWANCC criminal
conviction of a landowner who had filled adjacent wetlands without a permit. Even
though the government had presented evidence of a surface hydrological connection
between the wetlands and navigable-in-fact waters, the District Court concluded that a
20-mile distance was too far for CWA jurisdictional purposes. The United States has
appealed this decision to the Sixth Circuit.
Key Passages :
It is worth noting that the majority opinion in Solid Waste Agency repeatedly
refers to the wetlands at issue in that case as “isolated,” despite the fact
that, as the dissent points out, even the most seemingly “isolated” wetlands
are in fact both hydrologically connected, as well as ecologically
connected, to navigable waters. Solid Waste Agency , 531 U.S. at 176
n.2 (Steven, J., dissenting). The dissent notes that the wetlands in Solid
Waste Agency are at least ecologically connected. Despite this,
the majority still refers to the wetlands as isolated, indicating what is
likely a significant shift in its CWA jurisprudence. This leads the Court to
conclude that even if there is a hydrological connection, Defendant’s
wetlands may be considered “isolated” for purposes of the CWA.J ’
Defendant’s wetlands were not directly adjacent to navigable waters as was the
wetland in Riverside Bayview Homes , and Defendant’s activities did not
have the same direct impact on navigable waters as did the defendant in
Ashland Oil . These differences are crucial because despite its broad
reading of the CWA in Riverside Bayview Homes , the Supreme Court
concluded in Solid Waste Agency that the CWA does have limits.i J
Upon reviewing the government’s proposed facts, the Court finds, as a matter of

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law, that the government is unable to prove that Defendant, whose land
contained wetlands that are located roughly twenty miles from the nearest
body of navigable water, affected any navigable watersJ- /
3. United States v. Deaton , No. MJG-95-2 140 (D. Md. Jan. 29, 2002), appeal pending , No.
02-1442 ( 4 th Cir.) (argued Dec. 5, 2002)
Summary :
The defendants in this CWA § 404 civil enforcement action asked the court to reconsider
a prior liability decision on summary judgment in light of SWANCC . The District Court
(Judge Garbis) affirmed its prior determination that the defendants’ wetlands were
adjacent to other waters of the United States and therefore jurisdictional pursuant to 33
C.F.R. § 328.3(a)(1) (navigable-in-fact waters), § (a)(5) (tributaries), and § (a)(7)
(adjacent wetlands) of the Corps’ definition of “waters of the United States,” whereas
SWANCC involved only § (a)(3) (isolated waters). The District Court also rejected a
constitutional challenge, holding that Congress has the authority to regulate adjacent
wetlands based upon its Commerce Clause power to protect the channels of interstate
commerce. The defendants appealed to the Fourth Circuit and the case was argued on
December 5, 2002..
Key Passages :
Unlike the situation with the isolated pond at issue in SWANCC , there is a
surface water connection, albeit indirect, between the Deaton Parcel and
navigable waters, which was demonstrated in a dye study conducted by
Corps ecologist Alex Dolgos The Defendants’ sidecasting activities
on their wetlands impinged on water that “flows pnmarily over the surface
of the land and empties into a water that is at some point navigable-in-
fact,” a fact which was sufficient to convince the Buday court that the
defendant’s wetlands were subject to regulation under the Act.J - 2 i
If “ [ w]etlands 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,” wetlands, such as those on the Defendants’ Parcel,
having an actual surface water connection to navigable waters are”
adjacent” within the meaning of the Act.J-W
The Defendants’ continued reliance on the “questionable” status of § 328.3(a)(3)
is misplaced. It is the surface water connection between the Defendants’
wetlands and navigable waters that renders the wetlands “waters of the

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United States” under the Act by virtue of § 328.3(a)(1), (5), and (7) and §
328.3(c) and thereby gives the Corps jui-isdiction in the instant action.- 12 ’
[ J]urisdiction is exercised in the instant action under § 328.3(a)(1), (5), and (7),
which derive authority to confer jurisdiction from Lopez Prong 1, i.e.,
wetlands adjacent to ti-ibutanes of channels of interstate commerce. Thus,
the Defendants’ contention that the sidecasting they conducted on their
wetlands did not have a substantial economic impact on interstate
commerce, regardless of its merit, is irrelevant to the instant decision. 2 Q’
4. In re: Needham , No. 99-50242 (Bankr. W.D. La. July 30, 2001), aff’d, United States v.
Needham , 01-1897, 2002 WL 1162790 (W.D. La. Jan. 22, 2002), appeal pending , No.
02-302 17 ( 5 th Cir.) (oral argument scheduled for week of March 10, 2003)
Summary :
In this Oil Pollution Act action, the District Court (Judge Doherty) summarily affirmed a
ruling by the Bankruptcy Court (Judge Schiff) that the Coast Guard was not entitled to
recover costs for the cleanup of an oil spill into a drainage ditch that leaked into a
waterway that the United States contended was navigable-in-fact. Relying on Rice v.
Harken, supra , the Bankruptcy Court stated that a body of water is subject to regulation
under OPA “if and only if the body of water is actually navigable or is adjacent to an
open body of navigable water.” The Bankruptcy Court concluded that “the connection
between the actual oil spill and navigable waters is too tenuous to find that the OPA
applies.” The United States has appealed this decision to the Fifth Circuit, arguing that
the waterway in question is itself navigable-in-fact, or at least tributary to a
navigable-in-fact water.
Key Passages
The spill in the instant case occurred in a drainage ditch. Although that drainage
ditch and Bayou Cutoff may eventually lead to the Gulf of Mexico, the
facility itself is some 60 miles from the shoreline. The court believes that
the connection between the actual oil spill and navigable waters is too
tenuous to find that the OPA applies. 2 . 1 !
5. United States v. Rueth Development Co. , 189 F. Supp. 2d 874 (N.D. md. Sept. 25,
2001, order vacated in part , Feb. 21, 2002), appeal pending , No. 02-2045 ( 7 th Cir.)
Summary :
The District Court (Judge Moody) awarded $4,018,500 in stipulated penalties for
violations of a 1999 consent decree in this CWA § 404 civil enforcement case. In doing

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so, it denied defendant’s request to modify the decree in light of SWANCC . In its initial
decision, the District Court distinguished SWANCC on the basis that the wetlands in
Riieth were adjacent to other waters of the United States, not isolated. It subsequently
vacated that part of its initial decision, however, because it had relied on a mislabeled
document. Nevertheless, the District Court affirmed that EPA retained jurisdiction to
enforce the consent decree because the developer had voluntarily entered the decree and
was bound by its terms. Rueth has filed a notice of appeal to the Seventh Circuit.
6. United States v. Phillips , CA. 02-30035 and C.A. 02-30046, appeal pending , Nos. 02-
30035, 02-30046 ( 9 th Cir.) (argument scheduled for February 13, 2003)
Summary :
A jury convicted Phillips of knowing violations of the CWA. The judge for the district
of Montana had instructed the jury that the wetlands and streams into which the
defendant discharged pollutants were waters of the United States. An issue on appeal is
whether the court properly instructed the jury that discharges were into waters of the
United States under the CWA.
7. United States v. RGM Corp. , 222 F. Supp. 2d 780 (E.D. Va. July 26, 2002), appeal
pending , No. 02-2093 ( 4 th Cir.) (stayed pending decision in Newdunn)
Summary :
In this CWA § 404 civil enforcement action against a developer of wetlands in
Chesapeake, Virginia, the District Court (Judge Morgan -- same judge as in Newdunn,
supra) , ruled in favor of defendants following a four-day trial. The Court concluded that
after SWANCC the Corps lacked regulatory jurisdiction over the wetlands at issue,
which the government alleged were adjacent to other waters of the United States.
Key Passages :
The Corps argues that since water from these wetlands may sometimes enter
navigable waters via drainage ditches and ephemeral streams it should and does
have jurisdiction over such wetlands. When carried to its logical extreme this
argument means that any mountain stream, drainage ditch, culvert or artificial
watercourse which eventually enters navigable water, even sporadically, and
which possesses a perceptible OHWM [ ordinary high water mark] would contain
waters of the United States subject to Corps jurisdiction. Again, the Corps can
persuasively make an argument that this should be so from an environmental
standpoint, but it cannot Support such an argument based upon any valid
regulation promulgated in accordance with the CWA. 2 -Z’
C. Significant Decisions of the District Courts (Not Presently on Appeal )

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1. AieIlo v. Town of Brookhaven , 136 F. Supp 2d 81 (E.D.N.Y. March 15, 2001)
Summary :
In the context of a CWA § 402 citizen suit, the District Court (Judge Block) concluded
that non-navigable tributaries, including a pond and creek that flowed into a lake, which
in turn flowed into a traditional navigable water, are jurisdictional.
Key Passages :
[ E]ven should the pond and creek be considered non-navigable in the classical
sense, which according to the testimony of those who described the usage
of these waters seemingly was not the case, they nonetheless were at least
non-navigable tributaries of navigable waters, and therefore waters of the
United States under the CWA. ’
2. United States v. Buday , 138 F. Supp. 2d 1282 (D. Mont. April 11, 2001)
Summary :
In this CWA criminal enforcement action, the District Court (Chief Judge Molloy) held
that wetlands surrounding a small, intermittent, non-navigable tributary located some 200
miles upstream from the navigable-in-fact Clark Fork River were jurisdictional under the
CWA. The Court also rejected a constitutional challenge to the regulation of these
waters, concluding that Congress had authority under both the “use of the channels of
interstate commerce” and the “substantial relation to interstate commerce” prongs of the
Commerce Clause.
Key Passages :
The legislative history, in combination with the cases cited, establishes that
Congress intended the Clean Water Act to reach any surface water that
contributes to a water that is navigable-in-fact. 2 J
[ J]ust as wetlands adjacent to navigable waters fall under the Act, tributaries that
are distant from but connected to navigable waters are ecologically
capable of undermining the quality of the navigable water.... The water
quality of tributaries like Fred Burr Creek, distant though the tributaries
ma 7 be from navigable streams, is vital to the quality of navigable waters.
3. Idaho Rural Council v. Bosma , 143 F. Supp. 2d 1169 (D. Idaho June 4, 2001)

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Sum mary :
In the context of a CWA § 402 citizen suit, the Distnct Court (Judge Winmill) held that
discharges from a concentrated animal feeding operation were subject to CWA
jurisdiction. The Court found that the term “waters of the United States” encompasses a
spnng that runs into a pond that drains across a pasture into a canal that flows to a creek
that is either navigable-in-fact or flows into a navigable-in-fact nver. It also concluded
that discharges into groundwater that leads to surface water may require a § 402 permit
where such discharges can be traced from their source to the surface water.
Key Passages :
The Court has thoroughly examined the record and is satisfied that Butler and
Walker Springs are sufficiently connected through surface water to Clover
Creek as to fall within the definition of waters of the United States. J
4. Colvin v. United States , 181 F. Supp. 2d 1050 (C.D. Cal. Dec. 28, 2001)
Summary :
The defendant in this CWA § 404 cnminal enforcement case was convicted for
discharging 5.4 million pounds of screw press rejects on the shoreline of the Salton Sea, a
large, isolated, navigable-in-fact lake. After SWANCC , the defendant filed a petition for
a writ of habeas corpus seeking to vacate his sentence. The District Court (Judge Timlin)
denied the petition, finding that the Salton Sea is a water of the United States, jurisdiction
over which is unaffected by SWANCC.
Key Passages :
[ T]he SWANCC Court did not invalidate other Corps interpretations (i.e.,
non-Migratory Bird Rule interpretations) of navigable waters, including
all traditional nav.igable waters, all interstate waters, all tributanes to
navigable or interstate waters, all wetlands adjacent to any and all of such
waters, and all waters that are subject to the ebb and flow of the tide
The trial record reflects that the Salton Sea is a popular destination for out-
of-state and foreign tounsts, who fish and recreate in and on its waters and
shoreline. Some tounsts visit the Salton Sea for medicinal purposes,
believing its water is good for their skin. Other international and domestic
visitors frequent the Salton Sea to water ski, fish, hunt ducks, and race
boats and jet skis on the Sea. Many Canadian tounsis frequent the Sea in
the winter, while many others use it in the summer. The record further
shows that the Sea ebbs and flows with the tide. Under most any meaning
of the term, the Salton Sea is a body of “navigable water” and “water of
the United States “22”

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5. United States v. LamDlight Equestrian Center, inc. , No. 00-6486, 2002 WL 360652
(N.D. III. March 8, 2002)
Summary :
In this CWA § 404 civil enforcement action, the District Court (Judge Pallmeyer)
concluded on summary judgment that CWA jurisdiction existed over a wetland that
drained through a man-made drainage ditch, then through a 50 foot “delta” or
“meandering drainage swale,” and then into Brewster Creek (a non-navigable stream),
and ultimately into the Fox River, a navigable-in-fact water.
Key Passages :
The Corps asserts jurisdiction over the wetlands on the Property on the basis of an
allegedly unbroken line of surface water from the Property’s wetlands to a
tributary of Brewster Creek, which is itself a tributary to the navigable
Fox River....
Water need not flow in an unbroken line at all times to constitute a sufficient
connection to a navigable water or its tributaries; as recognized by other courts,
intermittent flow of the type Lamplight has acknowledged can be sufficient to
establish the Corps’ jurisdiction
[ T]his court concludes that the “drainage connection” between the wetlands and
the tributary of Brewster Creek does establish adjacency: the dictionary
definition of “contiguous” is “being in actual contact: touching along a
boundary or at a point.” MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY 250 (lOth ed. 1997). By virtue of the path of water,
whether it be a delta, a meandering swale, or a drainage connection, the
wetlands come into actual contact with the tributary of Brewster Creek..
SWANCC did not limit Corps junsdiction under the Act to navigable waters and
wetlands adjacent to navigable waters. Thus, whether or not Brewster
Creek is navigable does not end the court’s inquiry. Cases both before and
after SWANCC have found that a tributary need not have a direct
connection to the navigable water, but may be linked through other
connections two or three times removed from the navigable water and still
be subject to the Corps’ jurisdiction.... Even where the distance from
the tributary to the navigable water is significant, the quality of the
tnbutary is still vital to the quality of the navigable waters.Z ’
6. California Sporttishing Protection Alliance v. Diablo Grande, Inc. , 209 F. Supp. 2d
1059 (E.D. Cal. March 21, 2002).
Summary :

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In the context of a CWA citizen suit under CWA § 402 alleging stormwater discharges
without an NPDES permit, the District Court (Judge Wanger) held that a creek iunning
across defendant’s property over a weir and into an underground pipeline which
eventually connects to the San Joaquin River was a jurisdictional “tributary” under the
CWA.
Key Passages :
The fact that the waters of Salado Creek flow underground, partially through a
pipe, does not make them “groundwater” outside the jurisdiction of the
Act. Unlike Rice where there was no clear evidence of a hydrological
connection between the groundwater and the river, here there is no dispute
that when there is sufficient water in Salado Creek it flows Into the San
Joaquin River. The fact that an underground pipeline conveys the water
from one point to the other does not create a hydrological disconnect; nor
does it affect Salado Creek’s status as a tributary of the San Joaquin River.
Salado Creek is not the kind of “isolated water” at issue in Solid Waste
and Rice ; it is a tributary hydrologically connected to the San Joaquin
River, a navigable-in-fact water. 2 W
7. United States v. Adam Bros. Farming Inc. , No. CV 00-7409 CAS (C.D. Cal. July 12,
2002)
Summary :
In this CWA § 404 civil enforcement action, the government alleged that the defendants
violated the Act by discharging dredged or fill material without a permit into wetlands
adjacent to Orcutt Creek. The government asserted that Orcutt Creek, which flows
through a series of man-made conveyances to the Santa Maria River, is a tributary of the
Santa Maria River and hence a water of the United States. In an opinion denying the
defendants’ motion for summary judgment, the District Court (Judge Snyder) held that”
permitting jurisdiction under § 404(a) of the CWA extends to wetlands adjacent to any
tributary, whether or not it is navigable, which is hydrologically connected under certain
conditions with a traditionally navigable body of water.” ’ The Court ruled that a
material question of fact for trial remained as to whether the government could establish
a sufficient hydrological connection in this case.
Key Passages :
Although both SWANCC and Headwaters hold that isolated waters are not
subject to the Corps’ regulatory jurisdiction, the logic of Headwaters also suggests
that there are some circumstances where an artificial structure can create a
hydrological connection sufficient to support Corps’ regulatory jurisdiction where
one did not previously exist. Accordingly, the Court finds that on the present
record there is a material question of fact as to whether pumping water from the

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Orcutt Creek channel into a reservoir which sometimes flows onward to the Santa
Maria River creates a sufficient hydrological connection to support Corps’
regulatory jurisdiction under the CWA:3u1
8. United States v. The New Portland Meadows. Inc. , No. 00-507-AS, 2002 WL
3 1180956 (D. Or. Sept. 9, 2002)
Summary :
In this CWA § 402 civil enforcement action, the district court adopted the magistrate’s
recommendation, which had concluded that ditches that are hydrologically connected to
traditional navigable waters by means of pumping are waters of the United States under
the CWA.
Key Passages :
The mere fact that the water from the District ditches is forced into the Columbia
Slough by pumps is irrelevant. All of the water that enters the District ditches
eventually ends up in the Columbia Slough, whether it flows naturally or not.
Defendants were well aware of the ultimate destination of their wastewater and
created their ditch system with the intent that the wastewater be transported to the
Columbia Slough.
The unnamed ditch at issue is a tributary to waters of the United States and is,
therefore, a water of the United States under the Act. “To hold otherwise and to
allow polluters to contaminate this drainage system would defeat the intent of
Congress and would jeopardize the health of our nation’s waters.” United States
v. Eidson , supra, 108 F.3d at 1343. 2J
9. FD & P Enterprises. Inc. v. United States Army Corps of Engineers , No. 99-3500
HAA, 2003 WL 124761 (D.N.J. Jan. 15, 2003)
Summary :
In this challenge to the Corps’ jurisdictional determination in the context of a CWA § 404
permit proceeding, the district court (Judge Ackerman) denied plaintiff’s motion for
summary judgment on the issue of CWA jurisdiction because a genuine issue of material
fact exists regarding whether the filling of the wetlands at issue would have a substantial
nexus to navigable-in-fact waters.
Key Passages :
The issue presented to the court in this case is straightforward: does the CWA

-------
confer jurisdiction over wetlands abutting a non-navigable tributary, which feeds
into a navigable body of water? 3 - i
In light of Solid Waste , it is the view of this court that the “hydrological
connection” test is no longer the valid mode of analysis. In this context, the
language of Chief Justice Rehnquist’s opinion is instructive: it is “the significant
nexus between the wetlands and ‘navigable waters” that must inform our reading
of the CWA. Because, as Justice Stevens points out, Solid Waste has
substantially altered the meaning of “navigable waters” in the CWA, a “significant
nexus” must constitute more than a mere “hydrological connection.” Therefore,
this court must rejecf the Corps’ reading of Solid Waste , which this court believes
would essentially ignore the Supreme Court’s instructions arid maintain the”
hydrological connection” status quo. J
FD & P additionally argues that the Corps’ assertion of jurisdiction over the FD &
P wetlands violates the Commerce Clause of the United States Constitution. This
claim may be dealt with bnefly. First, it is important to note that while Solid
Waste altered the Court’s junsprudence with respect to the interpretation of the
CWA, that case did not touch on Congress’s authonty to regulate waters under the
Constitution. Therefore, the extensive jurisprudence holding that CWA
jurisdiction over wetlands such as those in the instant case is permissible — as a
Constitutional matter — remains good law. i’
1-! 243 F.3d at 533.
2 !Id. at 533.
at 534 (quoting United States. v. Eidson , 108 F.3d 1336, 1342 (1 1 th Cir. 1997)).
4J 250 F.3d at 269.
5/250 F.3d 270-71.
/ 2002 WL 1421411 at *3
21303 F.3d at 791.
793.
2 /’ 305 F.3d at 954-55.
IQ” See Va. Code § 62.1-44.5 and § 62.1-44.15:5.
.1 -11 195 F. Supp. 2d at 765.
.121 Id. at 766-67.
U! Id. at 767.
) -4/ 190 F. Supp. 2d at 1014 n.3
i ld.at 1016.

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.! ‘Idat 1017.
II” Slip op. at 17.
i 1 i at 18.
1 1 W at 19.
? Q” icL at 23-24.
2J 1 Slip op. at 7.
22 / 222 F. Supp. 2d at 787-88.
? / 136 F. Supp. 2dat 119.
2.41 138 F. Supp. 2d at 1290.
2. at 1291-1292.
2. I 143 F. Supp. 2d at 1178-79.
2.11181 F. Supp. 2d at 1055.
2. J 2002 WL 360652, at *7..*8.
2.2/ 209 F. Supp. 2d at 1076 (citations omitted).
Slip op. at 19.
-ii at 15.
21 2002 WL 31180956, at *6..7.
2003 WL 124761, at *1.
3-4 ” Id. at *6 (citation omitted).
3-51 Id. at *7

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Page 1
121 S.Ct. 675
148 L.Ed.2d 576, 69 USLW 4048, 51 ERC 1833,31 Envtl. L. Rep. 20,382, 1 Cal. Daily Op. Serv. 269,2001 Daily
Journal D.A.R. 267,2001 CJ C.A.R. 346, 14 Fla. L. Weekly Fed. S 48
(Cite as: 531 U.s. 159, 121 S.Ct. 675)
legislative history is less illuminating than
Supreme Court of the United States contemporaneous evidence.
SOLID WASTE AGENCY OF NORTHERN COOK
COUN1’Y, Petitioner,
V.
UNITED STATES ARMY CORPS OF
ENGINEERS, Ct al.
No. 99-1178.
Argued Oct. 31, 2000.
Decided Jan. 9, 2001.
Consortium of municipalities sued the United States
Army Corps of Engineers, challenging Corps’ exercise
of jurisdiction over abandoned sand and gravel pit on
which consortium planned to develop disposal site for
nonhazardous solid waste and denial of a Clean Water
Act (CWA) pennit for that purpose. The United States
District Court for the Northern District of Illinois,
George W. Lindberg, J., 998 F.Supp. 946 . granted
summary judgment for Corps on jurisdictional issue,
and consortium voluntarily dismissed remainder of its
claims. Consortium appealed. The Court of Appeals for
the Seventh Circuit, 191 F.3d 845 . affirmed. Certiorari
was granted. The Supreme Court, Chief Justice
Rehnquist, held that Corps’ rule extending definition of
“navigable waters” under CWA to include mtrastate
waters used as habitat by migratory birds exceeded
authority granted to Corps under CWA.
Reversed.
Justice Stevens filed dissenting opinion in which
Justices Souter, Ginsburg, and Breyer joined.
West Headnotes
111 Statutes 217.4
361k2 17.4 Most Cited Cases
1 .1 Environmental Law 525
I 49Ek525 Most Cited Cases
(Formerly l87k3.5)
1 .1 Environmental Law 173
l49Ek 173 Most Cited Cases
(Formerly 270k38)
j 1 Environmental Law 127
l49Ek127 Most Cited Cases
(Formerly 270k38)
Army Corps of Engineers’ rule extending definition of
“navigable waters” under Clean Water Act (CWA) to
include intrastate waters used as habitat by migratory
birds exceeded authonty granted to Corps under CWA,
and therefore, abandoned sand and gravel pit containing
ponds used by migratory birds was not subject to Corps’
jurisdiction under CWA. Federal Water Pollution
Control Act Amendments of 1972, § 404(a), as
amended. 33 U.S.C.A 1344(a : 33 C.F.R.
328 3(a (3l .
141 Statutes 219(6.1)
361k2l9(6.1’) Most Cited Cases
Army Corps of Engineers’ rule extending definition of
“navigable waters” under Clean Water Act (CWA) to
include intrastate waters used as habitat by migratory
birds which cross state lmes was not entitled to Chevron
deference; rule raised significant constitutional
questions, such as whether Congress had power to
regulate such waters under the Commerce Clause.
U.S.C.A Const. Art. I. 8. ci. 3 ; Federal Water
Pollution Control Act Amendments of 1972, § 404(a),
as amended, 33 U.S.CA. 6 1344(aI; 33 C.F.R
328.3(a)(3 )
J. .I Administrative Law and Procedure 330
I 5Ak330 Most Cited Cases
Failed legislative proposals are a particularly dangerous
ground on which to rest an interpretation of a prior
statute
121 Statutes 22O
361k220 Most Cited Cases
Where an administrative interpretation of a statute
invokes the outer limits of Congress’ power, agency
muct ectablish a cIe r indication that Con a ess *ntended
that result.
J j Administrative Law and Procedure 330
1 5Ak330 Most Cited Cases
p.
For purposes of statutory interpretation, subsequent

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Page 2
Concern that agency interpretation of a statute exceeds
limits of power granted by Congress is heightened
where interpretation alters the federal-state framework
by permitting federal encroachment upon a traditional
state power.
1.7.1 Constitutional Law 48(1)
92k48( I) Most Cited Cases
Where an otherwise acceptable construction ofa federal
statute would raise serious constitutional problems,
court will construe the statute to avoid such problems
unless such construction is plainly contrary to the intent
of Congress.
**676 Syllabus [ FN*1
The syllabus constitutes no part of the
opinion of the Court but has been prepared by
the Reporter of Decisions for the convenience
of the reader. See United S1ate v Detroit
Timber & Lumber Co. 200 U.S. 321. 337.26
S.Ct. 282. 50 L.Ed. 499 .
Petitioner, a consortium of suburban Chicago
mumcipalities, selected as a solid waste disposal site an
abandoned sand and gravel pit with excavation trenches
that had evolved into permanent and seasonal ponds.
Because the operation called for filling in some of the
ponds, petitioner contacted federal respondents,
including the Army Corps of Engineers (Corps), to
determine if a landfill permit was required under §
404(a) of the Clean Water Act (CWA), which
authorizes the Corps to issue permits allowing the
discharge of dredged or fill material into “navigable
waters.” The CWA defines “navigable waters” as “the
waters of the United States,” 33 U.S.C. 61 362(7 , and
the Corps’ regulations define such waters to include
intrastate waters, “the use, degradation or destruction of
which could affect interstate or foreign commerce,”
CFR 6 328.3(a (3l . In 1986, the Corps attempted to
clan1 ’ its jurisdiction, stating, in what has been dubbed
the “Migratory Bird Rule,” that § 404(a) extends to
intrastate waters that, infer alia, provide habitat for
migratory birds. 51 Fed.Reg. 41217 . Asserting
jurisdiction over the instant site pursuant to that Rule,
the Corps refused to issue a § 404(a) permit. When
petitioner challenged the Corps’ jurisdiction and the
merits of the permit denial, the District Court granted
respondents summary judgment on the jurisdictional
issue. The Seventh Circuit held that Congress has
authority under the Commerce Ciause to regulate
intrastate waters and that the Migratory Bird Rule is a
reasonable interpretation of the CWA.
Held: Title 33 CFR 6 328.3(a (3) . as clanfied and
applied to petitioner’s site pursuant to the Migratory
Bird Rule, exceeds the authority granted to respondents
under § 404(a) of the CWA. Pp. 679-684.
(a) In United States v. Riverside Bayview Homes. Inc..
474 U.S. 121. 106 S.Ct. 455. 88 L.Ed.2d 419 . this
Court held that the Corps had § 404(a) jurisdiction over
wetlands adjacent to a navigable waterway, noting that
the term “navigable” is of “limited import” and that
Congress evidenced its intent to “regulate at least some
waters that would not be deemed ‘navigable’ under [ that
term’s] classical understanding,” id.. at 133. 106 S.Ct .
But that holding was based in large measure upon
Congress’ unequivocal acquiescence to, and *160
approval of, the Corps’ regulations interpreting the
CWA to cover wetlands adjacent to navigable waters.
See id. at 135-139. 106 S.Ct. 455 . The Court
expressed no opinion on the question of the Corps’
authority to regulate wetlands not adjacent to open
water, and the statute’s text will not allow extension of
the Corps’ jurisdiction to such wetlands here. P. 680.
(b) The Corps’ original interpretation of the CWA in
its 1974 regulations-- which emphasized that a water
bod s capability of use by the public for transportation
or commerce determines whether it is navigable--is
inconsistent with that which it espouses here, yet
respondents present no persuasive evidence that the
Corps mistook Congress’ intent in 1974. Respondents
contend that whatever its original aim, when Congress
amended the CWA in 1977, it approved the more
expansive definition of”navigable waters” found in the
Corps’ 1977 regulations. Specifically, respondents
submit that Congress’ failure to pass legislation that
would have overturned the 1977 regulations and the
extension of the Environmental Protection Agency’s
jurisdiction in § 404(g) to include waters “other than”
traditional “navigable **677 waters” indicates that
Congress recognized and accepted a broad definition of
“navigable waters” that includes nonnavigable, isolated,
intrastate waters. This Court recognizes congressional
acquiescence to administrative interpretations of a
statute with extreme care. Failed legislative proposals
are a particularly dangerous ground on which to rest an
interpretation of a prior statute, Central Bank of
Denver. N A. v. First Interstate Bank of Denver. N.A..
511 U.S. 164. 187. 114 S.Ct. 1439. 128 L.Ed.2d 119 .
because a bill can be proposed or rejected for any
number of reasons. Here, respondents have failed to
make the necessary showing that Congress’ failure to
pass legislation demonstrates acquiescence to the 1977
regulations or the 1986 Migratory Bird Rule. Section
404(g) Is equally unenlightening, lbr IL does not
conclusively determine the construction to be placed on
the use of the term “waters” elsewhere in the CWA.
Riverside Bayview Homes. supra. at 138. n. 11. 106
S.Ct. 455 . Pp. 680-683.

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Page 3
(c) Even if § 404(a) were not clear, this Court would 2000 WL 1041206 ( Ainicus.Briefl
not extend deference to the Migratory Bird Rule under
Chevron USA. Inc. v Natural Resources Defense 2000 WL 1052146 ( Amicus.Brief)
Council. inc.. 467 U.S. 837. 104 S.Ct. 2778. 81
L.Ed.2d 694 . Where an administrative interpretation of 2000 WL 1052154 (Amicus.Briefl
a statute would raise serious constitutional problems,
the Court will construe the statute to avoid such 2000 WL 1052157 ( Amicus.Briefl
problems unless the construction is plainly contrary to
Congress’ intent. Edward J. DeBartolo Corp v. 2000 WL 1052159 (Amicus.Brief)
Florida Gulf Coast BuildinR & Consir. Trades Council.
485 U.S. 568. 575. 108 S.Ct. 1392. 99 L.Ed.2d 645. 2000 WL 1059641 (Amicus.Brief )
The grant of authority to Congress under the Commerce
Clause, though broad, is not unlimited. See, e.g, 2000 WL 1059644 (Amicus.Brief)
United States v Morrison. 529 U S. 598. 120 S Ct
1740. 146 L.Ed.2d 658 . Respondents’ arguments, e.g. 2000 WL 1059647 (Amicus.Briefl
that the Migratory Bird Rule falls within Congress’
power to regulate intrastate *161 activities that 2000 WL 1369409 ( Aniicus.Briefl
substantially affect interstate commerce, raise
significant constitutional questions, yet there is nothing 2000 WL 1369410 ( Ainicus.Brief )
approaching a clear statement from Congress that it
intended § 404(a) to reach an abandoned sand and 2000 WL 1369436 (Amicus.Brief )
gravel pit such as the one at issue. Permitting
respondents to claim federaljurisdiction overponds and 2000 WL 1369438 (Amicus.Briefl
mudflats falling within the Migratory Bird Rule would
also result in a significant impingement of the States’ 2000 WL 1041204 (Amicus.Brief )
traditional and primary power over land and water use.
The Court thus reads the statute as wntten to avoid such 2000 WL 1041203 (Amicus.Brief )
significant constitutional and federalism questions and
rejects the request for administrative deference Pp 2000 WL 1041200 ( Amicus.Brief )
683-684.
2000 WL 1041198 (Amicus.Briefl
191 P.3d 845 . reversed.
2000 WL 1041197 (Amicus.Brief)
REHNOUIST . C.J., delivered the opinion ofthe Court,
in which O’CONNOR. SCALIA, KENNEDY . and 2000 WL 1041196 ( Amicus.Brief)
THOMAS . JJ.,joined. STEVENS, i., filed a dissenting
opinion, in which SOUTER, GINSBURG , and 2000 WL 1041194 (Amicus.Brief)
BREYER , JJ., joined, post, p. 684.
2000 WL 1041193 (Amicus.Briefl
Timothy S. Bishop , Chicago, IL, for petitioner.
2000 WL 1041192 (Amicus.Briefl
Lawrence G. Wallace , Washington, DC, for
respondents. For Transcnpt of Oral Argument See:
For U.S. Suoreme Court Briefs See: 2000 WL 1669870 ( U.S.Oral.Ara.)
2000 WL 1369439 (Resp.Brief)
2000 WL 1369440 (Resp.Briefl *162 Chief Justice REHNOUTST delivered the opinion
of the Coun.
2000 WL 1532361 (Renlv.Briefl
Section 404(a) of the Clean Water ACT (CWA OT ACT),
2000WL 1041190 ( Pet.Brief ) 86 Stat. 884, as amended, 33 U.S.C. 1344(a) ,
regulates the discharge of dredged or fill material into
2000 WL 1028522 (Amicus.Brief ) “navigable waters.” The United States Army Corps of
Engineers (Corps) has interpreted § 404(a) to confer
2000 WL 1041205 ( Amicus.Brief ) federal authority over an abandoned sand and gravel pit

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in northern Illinois which provides habitat for migratory
birds. We are asked to decide whether the provisions of
§ 404(a) may be fairly extended to these waters, and, if
so, whether Congress could exercise such authority
consistent with the Commerce **678 Clause,
Const.. Art. I. 6 8. cl. 3 . We answer the first question
in the negative and therefore do not reach the second.
Petitioner, the Solid Waste Agency of Northern Cook
County (SWANCC), is a consortium of 23 suburban
Chicago *163 cities and villages that united in an effort
to locate and develop a disposal site for baled
nonhazardous solid waste. The Chicago Gravel
Company infonned the municipalities of the availability
of a 533-acre parcel, bestridmg the Illinois counties
Cook and Kane, which had been the site of a sand and
gravel pit mining operation for three decades up until
about 1960. Long since abandoned, the old mining site
eventually gave way to a successional stage forest, with
its remnant excavation trenches evolving into a
scattering of permanent and seasonal ponds of varying
size (from under one-tenth of an acre to several acres)
and depth (from several inches to several feet).
The municipalities decided to purchase the site for
disposal of their baled nonhazardous solid waste. By
law, SWANCC was required to file for various permits
from Cook County and the State of Illinois before it
could begin operation of its baleful project. In
addition, because the operation called for the filling of
some of the permanent and seasonal ponds, SWANCC
contacted federal respondents (hereinafter respondents),
including the Corps, to determine if a federal landfill
permit was required under § 404(a) of the CWA,
U.S.C. 6 1344(a) .
Section 404(a) grants the Corps authority to issue
permits “for the discharge of dredged or fill material
into the navigable waters at specified disposal sites.”
Ibid. The term “navigable waters” is defined under the
Act as “the waters of the United States, including the
temtonal seas.” 6 1362(7) . The Corps has issued
regulations defining the term “waters of the United
States” to include
“waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows,
playa lakes, or natural ponds, the use, degradation or
destruction of which could affect interstate or foreign
commerce ....“ 33 CFR 6 328.3(a)(3) (1999) .
*164 In 1986, in an attempt to “clari1 r” the reach of its
jurisdiction, the Lorps stated that 4U4(a) extends to
intrastate waters:
“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; or
“c. Which are or would be used as habitat for
endangered species; or
“d. Used to irrigate crops sold in interstate
commerce.” 51 Fed.Reg. 41217 .
This last promulgation has been dubbed the
“Migratory Bird Rule.” FFNI1
EIIL The Corps issued the “Migratory Bird
Rule” without following the notice and
comment procedures outlined in the
Administrative Procedure Act, 5 U.S.C. 6553 .
The Corps initially concluded that it had no jurisdiction
over the site because it contained no “wetlands,” or
areas which support “vegetation typically adapted for
life in saturated soil conditions,” 33 CFR 6 328.3(b)
( 1999) . However, after the Illinois Nature Preserves
Commission informed the Corps that a number of
migratory bird species had been observed at the site, the
Corps reconsidered and ultimately asserted jurisdiction
over the balefill site pursuant to subpart (b) of the
“Migratory Bird Rule.” The Corps found that
approximately 121 bird species had been observed at
the site, including several known to depend upon
aquatic environments for a significant portion of their
life requirements. Thus, on November 16, 1987, the
Corps formally “determined that the seasonally ponded,
abandoned gravel mining depressions located on the
project site, **679 while not wetlands, did qualif ’ as
‘waters of the United States’ ... based upon the following
critena: (1) the proposed site had been abandoned as a
gravel mining operation; (2) the water areas and spoil
piles had developed a natural character; and (3) the
water areas *165 are used as habitat by migratory bird
[ sic] which cross state lines.” U.S. Army Corps of
Engineers, Chicago District, Dept. of Army Permit
Evaluation and Decision Document, Lodging of
Petitioner, Tab No. 1, p. 6.
During the application process, SWANCC made
several proposals to mitigate the likely displacement of
the migratory birds and to preserve a great blue heron
rookery located on the site. Its balefill project
ultimately received the necessary local and state
approval. By 1993, SWANCC had received a special
use planned develppment permit from the Cook County
Board of Appeals, a landfill development permit from
the Illinois Environmental Protection Agency, and
approval from the Illinois Department of Conservation.
Despite SWANCC’s securing the required water
quality certification from the Illinois Environmental
Protection Agency, the Corps refused to issue a §
404(a) permit. The Corps found that SWANCC had
not established that its proposal was the “least

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environmentally damaging, most practicable
alternative” for disposal of nonhazardous solid waste;
that SWANCC’s failure to set aside sufficient funds to
remediate leaks posed an “unacceptable risk to the
public’s drinking water supply”; and that the impact of
the project upon area-sensitive species was
“unnütigatable since a landfill surface cannot be
redeveloped into a forested habitat.” Id.. at 87.
Petitioner filed suit under the Administrative Procedure
Act, 5 U.S.C. 6 701 et seq., in the Northern District of
Illinois challenging both the Corps’jurisdiction over the
site and the merits of its denial of the § 404(a) permit.
The District Court granted summary judgment
torespondents on the jurisdictional issue, and petitioner
abandoned its challenge to the Corps’ permit decision.
On appeal to the Court of Appeals for the Seventh
Circuit, petitioner renewed its attack on respondents’
use of the “Migratory Bird Rule” to assert jurisdiction
over the site. Petitioner argued that respondents had
exceeded their statutory authority m interpreting *166
the CWA to cover nonnavigable, isolated, intrastate
waters based upon the presence of migratory birds and,
in the alternative, that Congress lacked the power under
the Commerce Clause to grant such regulatory
junsdiction.
The Court of Appeals began its analysis with the
constitutional question, holding that Congress has the
authority to regulate such waters based upon “the
cumulative impact doctrine, under which a single
activity that itself has no discernible effect on interstate
commerce may still be regulated if the aggregate effect
of that class of activity has a substantial impact on
interstate commerce.” 191 F.3d 845.850 ( C.A.7 1999) .
The aggregate effect of the “destruction of the natural
habitat of migratory birds” on interstate commerce, the
court held, was substantial because each year millions
of Americans cross state lines and spend over a billion
dollars to hunt and observe migratory birds. IFN21
/ J j The Court of Appeals then turned to the
regulatory question. The court held that the CWA
reaches as many waters as the Commerce Clause allows
and, given its earlier Commerce Clause ruling, it
therefore followed that respondents’ “Migratory **680
Bird Rule” was a reasonable interpretation of the Act.
See Id.. at 851-852 .
E ii Relying upon its earlier decision in
Hoffman Homes. Inc. v. EPA. 999 F.2d 256
IC.A.7 1993 . and a report ifom the United
States Census Bureau, the Court of Appeals
found that in 1996 approximately 3.1 million
Americans spent $1.3 billion to hunt migratory
birds (with Il percent crossing state lines to
do so) as another 17.7 million Americans
observed migratory birds (with 9.5 million
traveling for the purpose of observing
shorebirds). See 191 F.3d. at 850 .
We granted certiorari, 529 U.S. 1129. 120 S.Ct. 2003.
146 L.Ed.2d 954 (2000) , and now reverse.
Congress passed the CWA for the stated purpose of
“restor [ ing] and mainlain [ ing] the chemical, physical,
and biological integrity of the Nation’s waters.”
U.S.C. 6 1251(a) . In so doing, Congress chose to
“recognize, preserve, and protect the primary
responsibilities and rights of *167 States to prevent,
reduce, and eliminate pollution, to plan the
development and use (including restoration,
preservation, and enhancement) of land and water
resources, and to consult with the Administrator m the
exercise of his authority under this chapter.” 61251(b) .
Relevant here, § 404(a) authorizes respondents to
regulate the discharge of fill material into “navigable
waters,” 33 U.S.C. 6 1344(a) , which the statute defines
as “the waters of the United States, including the
territorial seas,” 6 1362(7) . Respondents have
interpreted these words to cover the abandoned gravel
pit at issue here because it is used as habitat for
migratory birds. We conclude that the “Migratory Bird
Rule” is not fairly supported by the CWA.
This is not the first tune we have been called upon to
evaluate the meaning of § 404(a). In United Slates v
Riverside Bavview Homes. Inc.. 474 U.S. 121. 106
S.Ct. 455. 88 L.Ed.2d 419 (1985) . we held that the
Corps had § 404(a) jurisdiction over wetlands that
actually abutted on a navigable waterway. In so doing.
we noted that the term “navigable” is of “linuted
import” and that Congress evidenced its intent to
“regulate at least some waters that would not be deemed
‘navigable’ under the classical understanding of that
term.” kLat 133. 106 S Ct. 455 . But our holding was
based in large measure upon Congress’ unequivocal
acquiescence to, and approval of, the Corps’ regulations
interpreting the CWA to cover wetlands adjacent to
navigable waters. See id.. at 135-139. 106 S.Ct. 455 .
We found 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 134. 106 S.Ct
455.
It was the significant nexus between the wetlands and
navlgable waters that lnnrmed our reading or the
CWA in Riverside Bavview Homes . Indeed, we did not
“express any opinion” on the “question of the authority
of the Corps to regulate discharges of fill material into
wetlands that are not adjacent to bodies of open water
....“ t 1681d.. at 131-132. n.8. 106 S.Ct. 455 . Inorder

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to rule for respondents here, we would have to hold that
the jurisdiction of the Corps extends to ponds that are
not adjacent to open water. But we conclude that the
text of the statute will not allow this.
Indeed, the Corps’ original interpretation of the CWA,
promulgated two years after its enactment, is
inconsistent with that which it espouses here. Its 1974
regulations defined § 404(a)’s “navigable waters” to
mean “those waters of the United States which are
subject to the ebb and flow of the tide, and/or are
presently, or have been in the past, or may be in the
future susceptible for use for purposes of interstate or
foreign commerce.” 33 CFR § 209.1 20(d)( 1). The
Corps emphasized that “ [ i]t is the water body’s
capability of use by the public for purposes of
transportation or commerce which is the determinative
factor.” § 209.260(e)(1). Respondents put forward no
persuasive evidence that the Corps mistook Congress’
intent in 1974. FFN31
E Respondents refer us to portions of the
legislative history that they believe indicate
Congress’ intent to expand the definition of
“navigable waters.” Although the Conference
Report includes the statement that the
conferees “intend that the term ‘navigable
waters’ be given the broadest possible
constitutional interpretation,” S. Conf. Rep.
No. 92- 1236, p. 144(1972), U.S.Code Cong.
& Admin.News 1972 pp. 3668, 3822, neither
this, nor anything else in the legislative history
to which respondents point, signifies that
Congress intended to exert anything more than
its commerce power over navigation. Indeed,
respondents admit that the legislative history
is somewhat ambiguous. See Brief for Federal
Respondents 24.
**681 Respondents next contend that whatever its
original aim in 1972, Congress charted a new course
five years later when it approved the more expansive
definition of “navigable waters” found in the Corps’
1977 regulations. In July 1977, the Corps formally
adopted 33 CFR 6 323.2(a)(5) (1978) , which defined
“waters of the United States” to include “isolated
wetlands and lakes, intermittent streams, prairie
potholes, and other waters that are not part of a
tributary system to interstate waters or to navigable
waters ol the United Stales, the degradation or
destruction of which could affect *169 interstate
commerce.” Respondents argue that Congress was
aware of this more expansive interpretation during its
1977 amendments to the CWA. Specifically,
respondents point to a failed House bill, H.R. 3199, that
would have defined “navigable waters” as “all waters
which are presently used, or are susceptible to use in
their natural condition orby reasonable improvement as
a means to transport interstate or foreign commerce.”
123 Cong. Rec. 10420, 10434(1977). FFN41 Theyalso
point to the passage in § 404(g)(1) that authorizes a
State to apply to the Environmental Protection Agency
for permission “to administer its own individual and
general permit program for the discharge of dredged or
fill material into the navigable waters (other than those
waters which are presently used, or are susceptible to
use in their natural condition or by reasonable
improvement as a means to transport interstate or
foreign commerce ..., including wetlands adjacent
thereto) within its jurisdiction ....“ 33 U.S.C. 6
I 344(g )( I) . The failure to pass legislation that would
have overturned the Corps’ 1977 regulations and the
extension of jurisdiction in § 404(g) to waters “other
than” traditional “navigable waters,” respondents
submit, indicate that Congress recognized and accepted
a broad definition of “navigable waters” that includes
nonnavigable, isolated, intrastate waters.
J j While this bill passed in the House, a
similarly worded amendment to a bill
originating in the Senate, S. 1952, failed. See
123 Cong. Rec. 26710, 26728 (1977).
111121 Although we have recognized congressional
acquiescence to administrative interpretations of a
statute in some situations, we have done so with
extreme care. FFN51 “ [ F]ailed legislative *170
proposals are ‘aparticularly dangerous ground on which
to rest an interpretation of a prior statute.’” Central
Bank of Denver. NA v. First Interstate Bank of
Denver. N.A.511 U.S. 164.187. 114 S.Ct. 1439. 128
L.Ed.2d 119(1994 ) (quoting Pension Benefit Guaranr
Corporation v. LTV Corp.. 496 U.S. 633. 650. 110
S.Ct 2668. 110 L.Ed.2d 579 (1990)) . A bill can be
proposed for any number of reasons, and it can be
rejected for just as many others. The relationship
between the actions and inactions of the 95th Congress
and the intent of the 92d **682 Congress in passing §
404(a) is also considerably attenuated. Because
“subsequent history is less illuminating than the
contemporaneous evidence,” HaRen v. Utah. 510 U S.
399. 420. 114 S.Ct 958. 127 L.Ed.2d 252 (1994) ,
respondents face a difficult task in overcoming the plain
text arid import of § 404(a).
FN5.InBob Jones Univ. v. United States. 461
U.S. 574. 595. 600- 601. 103 S.Ct. 2017. 76
L.Ed.2d 157 (1983) , for example, we upheld
an Internal Revenue Service (IRS) Revenue

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Ruling that revoked the tax-exempt status of
private schools practicing racial
discrimination because the IRS’ interpretation
of the relevant statutes was “correct”; because
Congress bad held “hearings on this precise
issue,” making it “hardly conceivable that
Congress—and in this setting, any Member of
Congress—was not abundantly aware of what
was going on”; and because “no fewer than
13 bills introduced to overturn the IRS
interpretation” had failed. Absent such
overwhelming, evidence of acquiescence, we
are loath to replace the plain text and original
understanding of a statute with an amended
agency interpretation. See Consumer Product
Safety Comm ‘ n v GTE Sylvania. Inc., 447
U.s. 102. 118. ii. 13. 100 S.Ct. 2051. 64
L.Ed.2d 766 (1980 ) ( “ [ E]ven when it would
otherwise be useful, subsequent legislative
history will rarely override a reasonable
interpretation of a statute that can be gleaned
from its language and legislative history pnor
to its enactment”).
We conclude that respondents have failed to make the
necessary showing that the failure of the 1977 House
bill demonstrates Congress’ acquiescence to the Corps’
regulations or the “Migratory Bird Rule,” which, of
course, did not first appear until 1986. Although
respondents cite some legislative history showing
Congress’ recognition of the Corps’ assertion of
jurisdiction over “isolated waters,” FN61 as we
explained in Riverside Bavview Homes . “ [ i]n both
Chambers. debate on the proposals to narrow the
definition of navigable waters centered largely on the
issue of wetlands preservation.” 474 U.S.. at 136. 106
S.Ct. 455 . Beyond Congress’ desire to regulate *171
wetlands adjacent to “navigable waters,” respondents
point us to no persuasive evidence that the House bill
was proposed in response to the Corps’ claim of
jurisdiction over nonnavigable, isolated. intrastate
waters or that its failure indicated congressional
cquiescence to such jurisdiction
E . Respondents Cite, for example, the
Senate Report on S. 1952, which referred to
the Corps’ “isolated waters” regulation. See
S.Rev. No. 95-370. ti. 75 (1977), U.S.Code
Cong. & Admin.News 1977 pp. 4326, 4400.
Iluwçver, the same repurl reiieraled Ihil “(t]Iie
committee amendment does not redefine
navigable waters.” Ibid.
Bayview Homes we recognized that Congress intended
the phrase “navigable waters” to include “at least some
waters that would not be deemed ‘navigable’ under the
classical understanding of that term.” Id.. at 133. 106
S.Ct. 455 . But § 404(g) gives no intimation of what
those waters might be; it simply refers to them as
“other ... waters.” Respondents conjecture that “other
waters” must incorporate the Corps’ 1977 regulations,
but it is also plausible, as petitioner contends, that
Congress simply wanted to include all waters adjacent
to “navigable waters,” such as nonnavigable tributaries
and streams. The exact meaning of 404(g) is not
before us and we express no opinion on it, but for
present purposes it is sufficient to say, as we did in
Riverside Bavview Homes , that” § 404(g)( 1) does not
conclusively determine the construction to be placed on
the use of the term ‘waters’ elsewhere in the Act
(particularly in § 502(7), which contains the relevant
definition of ‘navigable waters’) ....“ Id. at 138. n. II.
106 S.Ct. 455. 1FN7 )
EI 1L Respondents also make a passing
reference to Congress’ decision in 1977 to
exempt certain types of discharges from §
404(a), including, for example, “discharge of
dredged or fill material ... for the purpose of
construction or maintenance of farm or stock
ponds or irrigation ditches, or the maintenance
of drainage ditches.” § 67, 91 Stat. 1600,
U.S.C. l344ff)(C) . As § 404(a) only
regulates dredged or fill material that is
discharged “into navigable waters,” Congress’
decision to exempt certain types of these
discharges does not affect, much less address,
the definition of “navigable waters.’
j ,j We thus decline respondents’ invitation to take what
they see as the next ineluctable step after Riverside
Bavview Homes ’ holding that isolated ponds, some
only seasonal, wholly located within two illinois
counties, fall under § 404(a)’s definition of “navigable
waters” because they serve *172 as habitat for
migratory birds. As counsel for respondents conceded
at oral argument, such a ruling would assume that TM the
use of the word navigable in the statute ... does not have
any independent significance.” Tr. of Oral Arg. 28. We
cannot agree that Congress’ separate definitional use of
the phrase “waters of the United States” constitutes a
basis for reading the term “navigable waters” out of the
Statuic. W said iii Rive r. ,id Buvview Hu,ne , diat thc
ord “navigable” in the **683 statute was of “limited
import” 474 U.S.. at 133. 106 S.Ct. 455 . and went on to
hold that § 404(a) extended to nonnavigable wetlands
adjacent to open waters. But it is one thing to give a
word limited effect and quite another to give it no effect
Section 404(g) is equally unenlightening. In Riverside

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whatever. The term “navigable” has at least the import
of showing us what Congress had in mind as its
authority for enacting the CWA: its traditional
jurisdiction over waters that were or had been navigable
in fact or which could reasonably be so made. See, e.g.,
United Stales v Appalachian Elec. Power Co. 311
U.S. 377.407-408. 61 S.Ct. 291. 85 L.Ed. 243 (1940) .
J J Respondents--relying upon all of the arguments
addressed above--contend that, at the very least, it must
be said that Congress did not address the precise
question of § 404(a)’s scope with regard to
nonnavigable, isolated, intrastate waters, and that,
therefore, we should give deference to the “Migratory
Bird Rule.” See, e.g., Chevron US.A. Inc. v. Natural
Resources Defense Council. Inc.. 467 U.S. 837. 104
S.Ct. 2778. 81 L Ed.2d 694 (1984) . We find § 404(a)
to be clear, but even were we to agree with respondents,
we would not extend Chevron deference here.
15116117 ] Where an administrative interpretation of a
statute invokes the outer limits of Congress’ power, we
expect a clear indication that Congress intended that
result. See EdwardJ DeBartolo Corp v Florida Gulf
Coast BuildinE & Constr Trades Council. 485 U.S.
568. 575. 108 S.Ct. 1392. 99 L.Ed.2d 645 (1988) . This
requirement stems from our prudential desire not to
needlessly reach constitutional issues and our
assumption that Congress does not casually authorize
administrative agencies to interpret a *173 statute to
push the limit of congressional authority. See j j This
concern is heightened where the administrative
interpretation alters the federal-state framework by
permitting federal encroachment upon a traditional state
power. See United States v Bass. 404 U.S. 336. 349.
92 S.Ct. 515. 30 L.Ed.2d 488 (1971 ) (“ [ Ujnless
Congress conveys its purpose clearly, it will not be
deemed to have significantly changed the federal-state
balance”). Thus, “where an otherwise acceptable
construction of a statute would raise serious
constitutional problems, the Court will construe the
statute to avoid such problems uiiless such construction
is plainly contrary to the intent of Congress.”
DeBartolo. supra. at 575. 108 S.Ct. 1392 .
Twice in the past six years we have reaffirmed the
proposition that the grant of authority to Congress
under the Commerce Clause, though broad, is not
unlimited. See United Slates v Morrison. 529 U.S.
598. 120 S.Ct. 1740. 146 L.Ed.2d 658(2000); United
Stales v Lopez. 514 U.S. 549. 115 SCt. 1624. 131
L.k .d.2d bib (199 )1 . Kespondents argue that the
“Migratory Bird Rule” falls within Congress’ power to
regulate intrastate activities that “substantially affect”
interstate commerce. They note that the protection of
migratory birds is a “national interest of very nearly the
first magnitude,” Missouri v. Holland. 252 U.S. 416 .
435.40 S.Ct. 382.64 L.Ed. 641(1920) , and that, as the
Court of Appeals found, millions of people spend over
a billion dollars annually on recreational pursuits
relating to migratory birds. These arguments raise
significant constitutional questions. For example, we
would have to evaluate the precise object or activity
that, in the aggregate, substantially affects interstate
commerce. This is not clear, for although the Corps has
claimed jurisdiction over petitioner’s land because it
contains water areas used as habitat by migratory birds,
respondents nOW, post litem motam, focus upon the fact
that the regulated activity is petitioner’s municipal
landfill, which is “plainly of a commercial nature.”
Brief for Federal Respondents 43. But this is a far cry,
indeed, from the “navigable waters” and “waters of the
United States” to which the statute by its terms extends.
*174 These are significant constitutional questions
raised by respondents’ application **684 of their
regulations, and yet we find nothing approaching a clear
statement from Congress that it intended § 404(a) to
reach an abandoned sand and gravel pit such as we have
here. Permitting respondents to claim federal
jurisdiction over ponds and mudflats falling within the
“Migratory Bird Rule” would result in a significant
impingement of the States’ traditional and primary
power over land and water use. See, e.g. Hess v. Port
Authority Trans-Hudson Corporation. 513 U.S. 30.44.
115 S.Ct. 394. 130 L.Ed.2d 245 (1994 ) (“ [ R]egulation
of land use [ is] a function traditionally performed by
local governments”). Rather than expressing a desire to
readjust the federal- state balance in this manner,
Congress chose to “recognize, preserve, and protect the
primary responsibilities and rights of States ... to plan
the development and use ... of land and water resources
....“ 33 U.S.C. 125 1(b) . We thus read the statute as
written to avoid the significant constitutional and
federalism questions raised by respondents’
interpretation, and therefore reject the request for
administrative deference. IFN81
ENL Because violations of the CWA carry
criminal penalties, see 33 U S.C. 131 9(cW2) ,
petitioner invokes the rule of lenity as another
basis for rejecting the Corps’ interpretation of
the CWA. Brief for Petitioner 31-32. We
need not address this alternative argument.
See United States v Shabani. 513 U.S. 10. 17.
115 S.Ct. 382. 130 L.Ed.2d 225 (1994) .
We hold that 33 CFR 328.3(a)(3) ( 1999) , as clarified
and applied to petitioner’s balefill site pursuant to the
“Migratory Bird Rule.” 51 Fed.Reg. 41217 (1986) ,
exceeds the authority granted to respondents under §
404(a) of the CWA. The judgment of the Court of

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Appeals for the Seventh Circuit is therefore
Reversed.
Justice STEVENS . with whom Justice SOUTER ,
Justice GINSBURG . and Justice BREYER join,
dissenting.
In 1969, the Cuyahoga River in Cleveland, Ohio,
coated with a slick of industrial waste, caught fire.
Congress responded *175 to that dramatic event, and to
others like it, by enacting the Federal Water Pollution
Control Act (FWPCA) Amendments of 1972, 86 Stat.
817, as amended, 33 U.S.C. S 1251 et seq , commonly
known as the Clean Water Act (Clean Water Act,
CWA, or Act). FFNI1 The Act proclaimed the
ambitious goal of ending water pollution by 1985.
1251(a) . The Court’s past interpretations of the CWA
have been hilly consistent with that goal. Although
Congress’ vision of zero pollution remains unfulfilled,
its pursuit has unquestionably retarded the destruction
of the aquatic environment. Our Nation’s waters no
longer burn. Today, however, the Court takes an
unfortunate step that needlessly weakens our principal
safeguard against toxic water.
ENI.. See R. Adler, J. Landinan, & D.
Cameron, The Clean Water Act: 20 Years
Later 5-10 (1993).
It is fair to characterize the Clean Water Act as
“watershed” legislation. The statute endorsed
fundamental changes in both the purpose and the scope
of federal regulation of the Nation’s waters. In § 13 of
the Rivers and Harbors Appropriation Act of
1899(RHA), 30 Stat. 1152, as amended, 33 U.S.C. S
Q2 Congress had assigned to the Army Corps of
Engineers (Corps) the mission of regulating discharges
into certain waters in order to protect their use as
highways for the transportation of interstate and foreign
cc?mmerce; the scope of the Corps’ jurisdiction under
the RHA accordingly extended only to waters that were
“navigable.” In the CWA, however, Congress
broadened the Corps’ mission to include the purpose of
protecting the quality of our Nation’s waters for
esthetic. health. recreational, and environmental uses.
The scope of its jurisdiction was therefore redefmed to
encompass all or me waters of the u’thte states,
including the territorial seas.” 5 1362(7) . That **685
definition requires neither actual nor potential
navigability.
broadened jurisdiction under the CWA properly
included an 80-acre *176 parcel of low-lying marshy
land that was not itself navigable, directly adjacent to
navigable water, or even hydrologically connected to
navigable water, but which was part of a larger area,
characterized by poor drainage, that ultimately abutted
a navigable creek. United States v Riverside Bavview
Homes. Inc.. 474 U.S. 121. 106 S.Ct. 455. 88 L.Ed.2d
419 (l985 . [ FN21 Our broad finding in Riverside
Bavview that the 1977 Congress had acquiesced in the
Corps’ understanding of its jurisdiction applies equally
to the 410-acre parcel at issue here. Moreover, once
Congress. crossed the legal watershed that separates
navigable streams of commerce from marshes and
inland lakes, there is no principled reason for limiting
the statute’s protection to those waters or wetlands that
happen to lie near a navigable stream.
ENL See also App. to Pet. for Cert. 25a, and
Brief for United States 8, n. 7, in Riverside
Bayview, O.T.l984,No. 84-701. The District
Court in Riverside Bavview found that there
was no direct “hydrological” connection
between the parcel at issue and any nearby
navigable waters. App. to Pet. for Cert. in
Riverside Bayview 25a. The wetlands
characteristics of the parcel were due, not to a
surface or groundwater connection to any
actually navigable water, but to “poor
drainage” resulting from “the Lamson soil that
underlay the property.” Brief for Respondent
in Riverside Bayview 7. Nevertheless, this
Court found occasional surface runoff from
the property into nearby waters to constitute a
meaningful connection. Riverside Bayv,ew.
474 U.S.. at 134. 106 S.Ct. 455 : Brief for
United States in Riverside Bayview 8, n. 7. Of
course, the ecological connection between the
wetlands and the nearby waters also played a
central role in this Court’s decision. Riverside
Bavview 474 U.S.. at 134-135. 106 S.Ct 455
Both types of connection are also present in
many, and possibly most, “isolated” waters
Brief for Dr. Gene Likens et al. as Amici
Curiae 6-22. Indeed, although the majorit)
and petitioner both refer to the waters on
petitioner’s site as “isolated,” ante, at 682-683;
Brief for Petitioner 11, their role as habitat for
migratoiy birds,, birds that serve important
functions in the ecosystems of other waters
throughout North Amenca, suggests that--
ecologically speaking—the waters at issue in
this case are anything but isolated.
The Court has previouslyheld that the Corps’
In its decision today, the Court draws a new

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Page 10
jurisdictional line, one that invalidates the 1986
migratory bird regulation as well as the Corps’ assertion
ofjurisdiction over all waters *177 except for actually
navigable waters, their tributaries, and wetlands
adjacent to each. Its holding rests on two equally
untenable premises: (1) that when Congress passed the
1972 CWA, it did not intend “to exert anything more
than its commerce power over navigation,” ante, at 680,
n. 3; and (2) that in 1972 Congress drew the boundary
defining the Corps’ jurisdiction at the odd line on which
the Court today settles.
As I shall explain, the text of the 1972 amendments
affords no support for the Court’s holding, and
amendments Congress adopted in 1977 do support the
Corps’ present interpretation of its mission as extending
to so-called “isolated” waters. Indeed, simple common
sense cuts against the particular definition of the Corps’
jurisdiction favored by the majority.
I
The significance of the FWPCA Amendments of 1972
is illuminated by a reference to the history of federal
water regulation, a history that the majority largely
ignores. Federal regulation of the Nation’s waters
began in the 19th century with efforts targeted
exclusively at “promot [ ing] water transportation and
commerce.” Kalen, Commerce to Conservation: The
Call for a National Water Policy and the Evolution of
Federal Jurisdiction Over Wetlands. 69 N D.L.Rev.
873. 877 (1993 ) This goal was pursued through the
various Rivers and Harbors Acts, the most
comprehensive of which was the RHA of 1899. FFN31
Section 13 **686 of the 1899 RHA, commonly known
as the Refuse Act, prohibited the discharge of “refuse”
into any “navigable water” or its tributaries, as well as
the deposit of”refuse” on the bank of a navigable water
“whereby navigation shall or may be impeded or
obstructed” without first obtaining a permit from the
Secretary of the Army. 30 Stat. 1152.
FN3. See also Rivers and Harbors
Appropriations Act of 1896, 29 Stat. 234;
River and Harbor Act of 1894, 28 Stat. 363;
River and Harbor Appropriations Act of 1890,
26 Stat. 426; The River and Harbor
Appropriations Act of 1886, 24 Stat. 329.
*178 During the middle of the 20th centuxy, the goals
of federal water regulation began to shift away from an
exclusive focus on protecting navigability and toward
a concern for preventing environmental degradation.
Kalen, 69 N.D.L.Rev.. at 877-879. and n. 30 . This
awakening of interest in the use of federal power to
protect the aquatic environment was helped along by
efforts to reinterpret § 13 of the RHA in order to apply
its permit requirement to industrial discharges into
navigable waters, even when such discharges did
nothing to impede navigability. See, e.g., United States
v Republic Steel CorD. 362 U.S. 482. 490-491. 80
S.Ct. 884. 4 L.Ed.2d 903 (1960 ) (noting that the term
“refuse” in § 13 was broad enough to include industrial
waste). FFN41 Seeds of this nascent concern with
pollution control can also be found in the FWPCA,
which was first enacted in 1948 and then incrementally
expanded in the following years. FFN51
E! I4 In 1970, the House Committee on
Government Operations followed the Court’s
lead and advocated the use of § 13 as a
pollution control provision. H.R.Rep. No.
91-917, pp. 14-18 (1970). President Nixon
responded by issuing Executive Order No.
11574,35 Fed.Reg. 19627(1970 ) (revoked by
Exec. Order No. 12553. 51 Fed.Reg. 7237
( 1986)) , which created the Refuse Act Permit
Program. Power, The Fox in the Chicken
Coop: The Regulatory Program of the U.S.
Army Corps of Engineers, 63 Va. L.Rev. 503,
512(1977) (hereinafter Power). The program
ended soon after it started, however, when a
District Court, reading the language of § 13
literally, held the permit program invalid.
Ibid; see Kalur v Resor. 335 F.Supp. 1. 9
( D.C. 1971) .
The FWPCA of 1948 applied only to
“interstate waters.” § 10(e), 62 Stat. 1161.
Subsequently, it was harmonized with the
Rivers and Harbors Act such that--like the
earlier statute—the FWPCA defined its
jurisdiction with reference to “navigable
waters.” Pub.L. 89-753, § 211,80 Stat. 1252.
None of these early versions of the FWPCA
could fairly be described as establishing a
comprehensive approach to the problem, but
they did contain within themselves several of
the elements that would later be employed in
the CWA. Milwaukee v. illinois. 451 U.S.
304. 318. n 10. 101 S.Ct. 1784. 68 L.Ed.2d
114 (1981 ) (REHNQUIST, J.) (Congress
intended to do something “quite different” in
the 1972 Act); 2 W. Rodgers, Environmental
Law: Air and Water 4.1, pp. 11.1-11 (19S0)
(describing the early versions of the FWPCA).
*179 The shift in the focus of federal water regulation
from protecting navigability toward environmental

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Page 11
protection reached a dramatic climax in 1972, with the
passage of the CWA. The Act, which was passed as an
amendment to the existing FWPCA, was universally
described by its supporters as the first truly
comprehensive federal water pollution legislation. The
“major purpose” of the CWA was “to establish a
comprehensive long-range policy for the elimination of
water pollution.” S.Rep. No. 92.414. p. 95(1971). 2
Legislative History of the Water Pollution Control Act
Amendments of 1972 (Committee Print compiled for
the Senate Committee on Public Works by the Library
of Congress), Set. No.93-1, p. 1511(1971) (hereinafter
Leg. Hist.) (emphasis added). And “ [ n]o
Congressman’s remarks on the legislation were
complete without reference to [ its] ‘comprehensive’
nature ....“ Milwaukee v. Illinois, 451 U.S. 304. 318.
101 S.Ct. 1784.68 L.Ed.2d 114(1981 ) (REFINQUIST,
J.). A House sponsor described the bill as “the most
comprehensive and far-reaching water pollution bill we
have ever drafted,” I Leg. Hist. 369 (Rep. Mizell), and
Senator Randolph, Chairman of the Committee on
Public Works, stated: “It is perhaps the most
comprehensive legislation that the Congress of the
United States has ever developed in this particular field
of the environment.” 2 id., at **687 1269. This Court
was therefore undoubtedly correct when it described the
1972 amendments as establishing “a comprehensive
program for controlling and abating water pollution.”
Train v City of New York. 420 U.S. 35. 37. 95 S.Ct
839. 43 L.Ed.2d 1 (1975) .
Section 404 of the CWA resembles § 13 of the RHA,
but, unlike the earlier statute, the primary purpose of
which is the maintenance of navigability, § 404 was
principally intended as a pollution control measure. A
comparison of the contents of the RHA and the 1972
Act vividly illustrates the fundamental difference
between the purposes of the two provisions. The earlier
statute contains pages of detailed appropriations for
Improvements in specific navigation facilities, 30 Stat.
1121-1149, for studies concerning the feasibility *180
of a canal across the Isthmus of Panama. Id., at 1150.
and for surveys of the advisability of harbor
improvements at numerous other locations, Id., at
1155-1161. Tellingly, § 13, which broadly prohibits
the discharge of refuse into navigable waters, contains
an exception for refuse “flowing from streets and
sewers ... in a liquid state.” Id., at 1152.
The 1972 Act, in contrast, appropriated large sums of
money for research and related programs for water
pollution control, b Stat. Slb- 33, and tor the
construction of water treatment works, id., at 833-844.
Strikingly absent from its declaration of “goals and
policy” is any reference to avoiding or removing
obstructions to navigation. Instead, the principal
objective of the Act, as stated by Congress in § 101,
was “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C.
61251 . Congress therefore directed federal agencies in
§ 102 to “develop comprehensive programs for
preventing, reducing, or eliminating the pollution of the
navigable waters and ground waters and improving the
sanitary condition of surface and underground waters.”
33 U.S.C. 61252 . The CWA commands federal
agencies to give “due regard,” not to the interest of
unobstructed navigation, but rather to “improvements
which are necessary to conserve such waters for the
protection and propagation of fish and aquatic life and
wildlife [ and] recreational purposes.” Ibid.
Because of the statute’s ambitious and comprehensive
goals, it was, of course, necessary to expand its
jurisdictional scope. Thus, although Congress opted to
carryover the traditional jurisdiciional term “navigable
waters” from the RHA and prior versions of the
FWPCA, it broadened the definition of that term to
encompass all “waters of the United States.” 61362(7).
FFN61 Indeed, the 1972 conferees arrived at the final
formulation by specifically deleting the *181 word
“navigable” from the definition that had originally
appeared in the House version of the Act. IFN71 The
majority today undoes that deletion.
ENcL The definition of “navigable water” in
earlier versions of the FWPCA had made
express reference to navigability. § 211, 80
- Stat. 1253
EI 1L The version adopted by the House of
Representatives defined “navigable waters” as
“the navigable waters of the United States,
including the territorial seas.” H.R. 11896,
92d Cong., 2d Sess., § 502(8) (1971),
reprinted in 1 Leg. Hist. 1069. The CWA
ultimately defined “navigable waters” simply
as “the waters of the United States, including
the territorial seas.” 33 U.S.C. 6 1362(7) .
The Conference Report explained that the definition in
§ 502(7) was intended to “be given the broadest
possible constitutional interpretation.” S. Conf Rep.
No. 92-1236, p. 144 (1972), reprinted in I Leg. Hist.
327. The Court dismisses this clear assertion of
legislative intent with, the back of its hand. Ante, at
(bU, xi. .5. She statement, it claims, “ ignthes that
Congress intended to exert [ nothing] more than its
conunerce power over navigation.” Ibid.
The majority’s reading drains all meaning from the
conference amendment. By **688 1972, Congress’

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Page 12
Commerce Clause power over “navigation” had long
since been established. The Daniel Ball. 10 Wall. 557.
19 L.Ed. 999 (1871); Gilman v. Philadelphia. 3 Wall.
713. 18 L.Ed. 96(1866); Gibbonsv. Ogden. 9 Wheat.
1.6 L.Ed. 23(1824) . Why should Congress intend that
its assertion. of fM 1 jurisdirtinn be given the
“broadest possible constitutional interpretation” ifit did
not intend to reach beyond the very heartland of its
commerce power? The activities regulated by the
CWA have nothing to do with Congress’ “commerce
power over navigation.” Indeed, the goals of the 1972
statute have nothing to do with navigation at all.
As we :vcognized in Riverside Bavvie v . the interests
served by the statute embrace the protection of
‘significant natural biological functions, including food
chain production, general habitat, and nesting,
spawning, rearing and resting sites” for various species
of aquatic wildlife. 474 U.S.. at 134-135. 106 S.Ct .
For wetlands and “isolated” inland lakes, that
interest *182 is equally powerful, regardless of the
proximity of the swamp or the water to a navigable
stream. Nothing in the text, the stated purposes, or the
legislative history of the CWA supports the conclusion
that in 1972 Congress contemplated--much less
commanded--the odd jurisdictional line that the Court
has drawn today.
The majority accuses respondents of reading the term
“navigable” out of the statute. Ante, at 682. But that
was accomplished by Congress wherut deleted the word
from the § 502(7) definition. After all, it is the
definition that is the appropriate focus of our attention.
Babbitt v Sweet Home Chavier of Communities for
Great Oregon. 515 U.S. 687. 697-698. n. 10. 115 S.Ct.
2407. 132 L Ed.2d 597 (1995 ) (refusing to be guided
by the common-law definition of the term “take” when
construing that term within the Endangered Species Act
of 1973 and looking instead to the meaning of the terms
contained in the definition of “take” supplied by the
statute). Moreover, a proper understanding of the
history of federal water pollution regulation makes clear
that--even on respondents’ broad reading--the presence
of the word “navigable” in the statute is not
inexplicable. The term was initially used in the various
Rivers and Harbors Acts because (1) at the time those
statutes were first enacted, Congress’ power over the
Nation’s waters was viewed as extending only to “water
bodies that were deemed ‘navigable’ and therefore
suitable for moving goods to or from markets,” Power
513; and (2) those statutes had the primary purpose of
protecting navigation. Congress choice to employ the
term “navigable waters” in the 1972 Clean Water Act
simply continued nearly a century of usage. Viewed in
light of the history of federal water regulation, the
broad § 502(7) definition, and Congress’ unambiguous
instructions in the Conference Report, it is clear that the
term “navigable waters” operates in the statute as a
shorthand for “waters overwhich federal authonty may
properly be asserted.”
*18311
As the majority correctly notes, ante, at 680, when the
Corps first promulgated regulations pursuant to § 404
of the 1972 Act, it construed its authority as being
essentially the same as it had been under the 1899
R}IA. FFN81 The reaction to those **689 regulations
in the federal courts, FFN91 in the Environmental
Protection Agency (EPA), FFN 101 and in Congress
[ FNI 11 convinced *184 the Corps that the statute
required it “to protect water quality to the full extent of
the [ C]ommerce [ C]lause” and to extend federal
regulation over discharges “to many areas that have
never before been subject to Federal permits or to this
form of water quality protection.” 40 Fed.Reg. 31320
(197.5).
The Corps later acknowledged that the
1974 regulations “limited the Section 404
permit program to the same waters that were
being regulated under the River and Harbor
Act of 1899.” 42 Fed.Reg. 37123 (1977).
Although refusing to defer to the Corps’
present interpretation of the statute, ante, at
682-683, the majority strangely attributes
some significance to the Corps’ initial
reluctance to read the 1972 Act as expanding
its jurisdiction, ante, at 680 (“Respondents put
forward no persuasive evidence that the Corps
mistook Congress’ intent in 1974”). But,
stranger still, by construing the statute as
extending to nonnavigable tributaries and
adjacent wetlands, the majority reads the
statute more broadly than the 1974 regulations
that it seems willing to accept as a correct
construction of the Corps’ jurisdiction. As I
make clear in the text, there is abundant
evidence that the Corps was wrong in 1974
and that the Court is wrong today.
See, e g., Natural Resources Defense
Council v Galloway. 392 F.Supp. 685. 686
( D.C. 1975); United Sgatesv Holland. 373
F.Suvo. 665 (M.D.Fla.1974).
FN1O . In a 1974 letter to the head of the
Corps, the EPA Administrator expressed his
disagreement with the Corps’ parsimonious
view of its own jurisdiction under the CWA.
Section 404 of the Federal Water Pollution

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Page 13
Control Act Amendments of 1972: Hearings
before the Senate Committee on Public
Works, 94th Cong., 2d Sess., 349 (1976)
(letter dated June 19, 1974, from Russell E.
Train, Administrator of EPA, to Lt. Gen. W.C.
Gribble, Jr., Chief of Coips of Engineers).
The EPA is the agency that generally
administers the CWA, except as otherwise
provided. 33 U.S.C. 125 1(d) ; see also 43
Op. Atty. Gen. 197 (1979) (“Congress
intended to confer upon the administrator of
the [ EPA] the final administrative authority”
to determine the reach of the term “navigable
waters”).
FN 11 . The House Committee on Government
Operations noted the disagreement between
the EPA and the Corps over the meaning of
“navigable waters” and ultimately expressed
its agreement with the EPA’s broader reading
of the statute. H.R.Rep. No. 93-1396, pp.
23-27 (1974).
In 1975, the Corps therefore adopted the interim
regulations that we upheld in Riverside Bavvzew . As we
noted in that case, the new regulations understood “the
waters of the United States” to include, not only
navigable waters and their tributaries, but also
“nonnavigable intrastate waters whose use or misuse
could affect interstate commerce.” 474 U.s.. at 123 .
j•Q S.Ct. 455 . The 1975 regulations provided that the
new program would become effective in three phases
phase 1, which became effective immediately,
encompassed the navigable waters covered by the 1974
regulation and the RHA; phase 2, effective after July 1,
1976, extended Corps jurisdiction to nonnavigable
tributaries, freshwater wetlands adjacent to primary
navigable waters, and lakes; and phase 3, effective
after July 1, 1977, extended Corps jurisdiction to all
other waters covered under the statute, including any
waters not covered by phases I and 2 (such as
“intermittent rivers, streams, tributaries, and perched
wetlands that are not contiguous or adjacent to
navigable waters”) that “the District Engineer
determines necessitate regulation for the protection of
water quaIit ,” 40 Fed.Reg. 31325-31326(1975). The
final version of these regulations, adopted in 1977,
made clear that the covered waters included “isolated
lakes and wetlands, intermi ttent streams, prairie
potholes, and other waters that are not pan of a
tributary system to interstate waters or to navigable
waters of the United States, the degradation or
destruction of which could affect interstate commerce.”
FFN 121
FN12 . 42 Fed.Reg. 37127 (1977), as
amended, 33 CFR 328.3(a)(31 (1977) . The
so-called “migratory bird” rule, upon which
the Corps based its assertion ofjunsdiction in
this case, is merely a specific application of
the more general jurisdictional definition first
adopted in the 1975 and 1977 rules. The
“rule,” which operates as a rule of thumb for
identif ’ing the waters that fall within the
Corps’ jurisdiction over phase 3 waters, first
appeared in the preamble to a 1986
repromulgation of the Corps’ definition of
“navigable waters.” 51 Fed.Reg. 41217
( 1986) . As the Corps stated in the preamble,
this repromulgation was not intended to alter
its jurisdiction in any way. Ibid. Instead, the
Corps indicated, the migratory bird rule was
enacted simply to “clarif [ y]” the scope of
existing jurisdictional regulations. Ibid.
* 185 The Corps’ broadened reading of its jurisdiction
provoked opposition among some Members of
Congress. As a result, **690 in 1977, Congress
considered a proposal that would have limited the
Corps’ jurisdiction under § 404 to waters that are used,
or by reasonable improvement could be used, as a
means to transport interstate or foreign commerce and
their adjacent wetlands. H.R. 3199, 95th Cong., 1st
Sess., § 16(f) (1977). A bill embodying that proposal
passed the House but was defeated in the Senate. The
debates demonstrate that Congress was fWly aware of
the Corps’ understanding of the scope of its jurisdiction
under the 1972 Act. We summarized these debates in
our opinion in Riverside Bavview :
“In both Chambers, debate on the proposals to
narrow the definition of navigable waters centered
largely on the issue of wetlands preservation. See
[ 123 Cong. Recj, at 10426-10432 (House debate);
id., at 26710-26729 (Senate debate). Proponents of
a more limited § 404 jurisdiction contended that the
Corps’ assertion of urisdicUon over wetlands and
other nonnavigable ‘waters’ had far exceeded what
congress had intended in enacting § 404. Opponents
of the proposed changes argued that a narrower
definition of’navigable waters’ for purposes of 404
would exclude vast stretches of crucial wetlands from
the Coips’jurisdiction, with detrimental effects on
wetlands ecosyitems, water quality, and the aquatic.
environment generally. The debate, particularly in
the Senate, was lengthy. In the House, the debate
ended with the adoption of a narrowed deflnitlOn 01
*186 ‘waters’; but in the Senate the limiting
amendment was defeated and the old definition
retained. The Conference Committee adopted the
Senate’s approach: efforts to narrow the definition of
‘waters’ were abandoned; the legislation as ultimately

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Page 14
passed, in the words of Senator Baker, ‘retain [ ed] the
comprehensive jurisdiction over the Nation’s waters
exercised in the 1972 Federal Water Pollution
Control Act.’” 474U.S.. at 136-137. 106 S.Ct. 455 .
The net result of that extensive debate was a
congressional endorsement of the position that the
Corps maintains today. We explained in Riverside
Bayview :
“ [ T]he scope of the Corps’ asserted jurisdiction over
wetlands was specifically brought to Congress’
attention, and Congress rejected measures designed
to curb the Corpr’ jurisdiction in large part because of
its concern that protection of wetlands would be
unduly hampered by a narrowed definition of
‘navigable waters.’ Although we are chary of
attributing significance to Congress’ failure to act, a
refusal by Congress to overrule an agency’s
construction of legislation is at least some evidence
of the reasonableness of that construction,
particularly where the administrative construction has
been brought to Congress’ attention through
legislation specifically designed to supplant it.” L
at 137. 106 S.Ct. 455 .
Even if the majonty were correct that Congress did not
extend the Corps’ jurisdiction in the 1972 CWA to
reach beyond navigable waters and their nonnavigable
tributanes, Congress’ rejection of the House’s efforts in
1977 to cut back on the Corps’ 1975 assertion of
jurisdiction clearly indicates congressional
acquiescence in that assertion. Indeed, our broad
determination in Riverside Bai’v,ew that the 1977
Congress acquiesced in the very regulations at issue in
this case should foreclose petitioner’s present urgings to
the contrary. The majority’s refusal in today’s decision
to acknowledge the scope of our pnor decision is
troubling. Compare *187 id.. at 136. 106 S.Ct. 455
(“Congress acquiesced in the [ 1975] administrative
construction [ of the Corps’jurisdiction]”), with ante, at
682 (“We conclude that respondents have failed to
make the necessary showing that the failure of the 1977
House bill demonstrates Congress’ acquiescence to the
Corps’ regulations ...“). FFNI31 **691 Having already
concluded that Congress acquiesced in the Corps’
regulatory definition of its jurisdiction, the Court is
wrong to reverse course today. See Dickerson v
United States. 530 U.S. 428.443. 120 S.Ct. 2326. 147
L.Ed.2d 405 (2000 ) (REHNQUIST, C.J.) (“ ‘ [ T]he
doctrine [ of stare decisis] carries such persuasive force
that we have always required a departure from
precedent so be supported by some “speclai
justification” ‘“).
FN13 . The majority appears to believe that its
position is consistent with Riverside Bavvzew
because of that case’s reservation of the
question whether the Corps’ jurisdiction
extends to “certain wetlands not necessarily
adjacent to other waters,” 474 U.S.. at 124. n.
2, 106 S.Ct. 455 . But it is clear from the
context that the question reserved by Riverside
Bayview did not concern “isolated” waters,
such as those at issue in this case, but rather
“isolated” wetlands. Seeid.. at 131- 132,n. 8,
106 S.Ct. 455 (“We are not called upon to
address the question of the authority of the
Corps to regulate discharges of fill material
into wetlands that are not adjacent to bodies of
open water ...“). Unlike the open waters
present on petitioner’s site, wetlands are lands
“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
vegetation typically adapted for life in
saturated soil conditions. Wetlands generally
include swamps, marshes, bogs, and similar
areas.” 33 CFR 6 328.3(b) (2000) . If, as I
believe, actually navigable waters lie at the
very heart of Congress’ commerce power and
“isolated,” nonnavigable waters lie closer to
(but well within) the margin, “isolated
wetlands,” which are themselves only
marginally “waters,” are the most marginal
category of “waters of the United States”
potentially covered by the statute. It was the
question of the extension of federal
junsdiction to that category of “waters” that
the Riverside Bavview Court reserved. That
question is not presented in this case.
More important than the 1977 bill that did not become
law are the provisions that actually were included in the
1977 revisions. Instead of agreeing with those who
sought to withdraw the Corps’ jurisdiction over
“isolated” waters, *188 Congress opted to exempt
several classes of such waters from federal control. §
67, 91 Stat. 1601, 33 U.S.C. 6 1344(f) . For example,
the 1977 amendments expressly exclude from the
Corps’ regulatory power the discharge of fill material
“for the purpose of construction or maintenance of farm
or stock ponds or irrigation ditches, or the maintenance
of drainage ditches,” and “for the purpose of
construction of temporary sedimentation basins on a
construction site which does not include placement of
fill material Into the navigable waters.” Ibid. The
specific exemption of these waters from the Corps’
jurisdiction mdicates that the 1977 Congress recognized
that similarly “isolated” waters not covered by the
exceptions would fall within the statute’s outer limits.

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Page 15
In addition to the enumerated exceptions, the 1977
amendments included a new section, § 404(g), which
authorized the States to administer their own permit
programs over certam nonnavigable waters. Section
404(g)( 1) provides, in relevant part:
“The Governor of any State desiring to administer its
own individual and general permit program for the
discharge of dredged or fill material into the
navigable waters (other than those waters which are
presently used, or are susceptible to use in their
natural condition or by reasonable improvement as a
means to transport interstate or foreign commerce ...,
including wetlands adjacent thereto) within its
jurisdiction may submit to the Administrator a full
and complete description of the program it proposes
to establish and administer under State law or under
an interstate compact.” 33 U.S.C. 1344(g)(l) .
Section 404(g)(1)’s reference to navigable waters
“other than those waters which are presently used, or
are susceptible to use,” for transporting commerce and
their adjacent wetlands appears to suggest that Congress
viewed (and accepted) the Act’s regulations as covering
more than navigable *189 waters in the traditional
sense. The majority correctly points out that §
404(g)(l) is itself ambiguous because it does not
indicate precisely how far Congress considered federal
jurisdiction to extend. **692 Ante, at 682. But the
Court ignores the provision’s legislative history, which
makes clear that Congress understood § 404(g)( 1 )--and
therefore federal jurisdiction--to extend, not only to
navigable w ters and nonnavigable tributaries, but also
to “isolated” waters, such as those at issue in this case.
The Conference Report discussing the 1977
amendments, for example, states that § 404(g)
“esiablish [ es] a process to allow the Governor of any
State to administer an individual and general permit
program for the discharge of dredged or fill material
into phase 2 and 3 waters after the approval of a
program by the Administrator.” HR. Conf. Rep No.
95-8 30. p. 101(1977) , U.S.Code Cong. & Admin.New
1977 pp. 4326,4476, reprinted in 3 Legislative History
of the Clean Water Act of 1977 (Committee Print
compiled for the Committee on Environment and Public
Works by the Library of Congress), Ser. No. 95-14, p.
285 (emphasis added) (hereinafter Leg. Hist. of CWA).
Similarly, a Senate Report discussing the 1977
amendments explains that, under § 404(g), “the [ C]orps
will continue to administer the section 404 permit
program in all navigable waters for a discharge of
dredge or nil material until the approval of a State
program for phase 2 and 3 waters.” S.Rep. No.
95-370. v.75 (1977), U.S.Code Cong. &Admin.News
1977 pp. 4326,4400, reprinted in 4 Leg. Hist. of CWA
708 (emphases added).
Of course, as I have already discussed, “phase 1”
waters are navigable waters and their contiguous
wetlands, “phase 2” waters are the “primary tributaries”
of navigable waters and their adjacent wetlands, and
“phase 3” waters are all other waters covered by the
statute, and can include such “isolated” waters as
“intermittent rivers, streams, tributaries, and perched
wetlands that are not contiguous or adjacent to
navigable waters.” The legislative history of the 1977
amendments therefore plainly establishes that, *190
when it enacted § 404(g), Congress believed—and
desired--the Corps’ jurisdiction to extend beyond just
navigable waters, their tributaries, and the wetlands
adjacent to each.
In dismissing the significance of § 404(g)(1), the
majonty quotes out of context language in the very
same 1977 Senate Report that I have quoted above.
Ante, at 682, n. 6. It is true that the Report states that
“ [ t]he committee amendment does not redefine
navigable waters.” S.Rep. No. 95- 370 , at p. 75,
U.S.Code Cong. & Admin.News at p. 4400, reprinted
in 4 Leg. Hist. of CWA 708 (emphasis added). But the
majonty fails to point out that the quoted language
appears in the course of an explanation of the Senate’s
refusal to go along with House efforts to narrow the
scope of the Corps’ CWA jurisdictioia to traditionally
navigable waters. Thus, the immediately preceding
sentence warns that “ [ t]o limit the jurisdiction of the
[ FWPCA] with reference to discharges of the pollutants
of dredged or fill material would cripple efforts to
achieve the act’s objectives.” FN 141 Ibid. The Court
would do well to heed that warning.
FNI4 . In any event, to attach significance to
the Report’s statement that the committee
amendments do not “redefine navigable
waters,” one must first accept the majority’s
erroneous interpretation of the 1972 Act. But
the very Report upon which the majority relies
states that “ [ tlhe 1972 [ FWPCA] exercised
comprehensive jurisdiction over the Nation’s
waters to control pollution to the fullest
constitutional extent.” S.Reo. No. 95 - 370, at
p. 75, U.S.Code Cong. & Admin.News,at p.
4400, reprinted in 4 Leg. Hist. of CWA 708
(emphases added). Even if the Court’s flawed
reading of the earlier statute were correct,
however, the language to which the Court
points does not counsel against finding
- congressional acquiescence In the Corps I 97
regulations. Quite the contrary. From the
perspective of the 1977 Congress, those
regulations constituted the status quo that the
proposed amendments sought to alter.
Considering the Report’s favorable references

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Page 16
to the Corps’ “continu [ ing]” jurisdiction over
phase 2 and 3 waters, the language concerning
the failure of the amendments to “redefine
navigable waters” cuts strongly against the
majority’s position, which instead completely
excises phase 3 waters from the scope of the
Act. Ibid.
**693 The majority also places great weight, ante, at
682, on our statement in Riverside Bayt’,ew that §
404(g) “does not conclusively*191 determine the
construction to be placed on the use of the term ‘waters’
elsewhere in eheAct, “ 474 US. at 138. n II. /065 C i
(emphasis added). This is simply more selective
reading. In that case, we also went on to say with
respect to the sign fl cance of,j 404(g) that “the various
provisions of the Act should be read in pan materia.”
More-over, our ultimate conclusion in Riverside
Bayview was that § 404(g) “suggest [ s] strongly that
the term ‘waters’ as used in the Act” supports the
Corps’ reading. Ikig 1
I I I
Although it might have appeared problematic on a
“linguistic” level for the Corps to classify “lands” as
“waters” in Riverside Bayview. 474 U.S.. at 131-132.
106 S.Ct. 455 . we squarely held that the agency’s
construction of the statute that it was charged with
enforcing was entitled to deference under Chevron
U S.A Inc v. NazuraiResources Defense Council. Inc.
467 U.S. 837. 104 S.Ct. 2778.81 L.Ed 2d 694(1984) .
Today, however, the majonty refuses to extend such
deference to the same agency’s construction of the same
statute, see ante, at 682-684. This refusal is unfaithful
to both Riverside Bayview and Chevron For it is the
majority’s reading, not the agency’s, that does violence
to the scheme Congress chose to put into place.
Contrary to the Court’s suggestion, the Corps’
interpretation of the statute does not “encroac [ h]” upon
“traditional state power” over land use. Ante, at 683.
“Land use planning in essence chooses particular uses
for the land; environmental regulation, at its core, does
not mandate particular uses of the land but requires only
that, however the land is used, damage to the
environment is kept within prescribed limits.”
California Coastal Comm ‘ n v. Granite Rock Co.. 480
U.S. 572. 587. 107 S.Ct. 1419.94 L.Ed.2d 577(1987) .
The CWA is not a land-use code; it is a paradigm of
environmental regulation. Such regulation is an
accepted exercise of federal power. Hodel v. Virginia
Surface Minin2 & Reclamation Assn.. Inc. 452 U.S.
264. 282. 101 S.Ct. 2352. 69 L.Ed.2d 1(1981) .
specter of federalism while construing a statute that
makes explicit efforts to foster local control over water
regulation. Faced with calls to cut back on federal
jurisdiction over water pollution, Congress rejected
attempts to narrow the scope of that jurisdiction and, by
incorporating § 404(g), opted instead for a scheme that
encouraged States to supplant federal control with their
own regulatoiy programs. S.Rep. No. 95-3 70 , at p. 75,
U.S.Code Cong. & Admin.News at p. 4400, reprinted
in 4 Leg. Hist. of CWA 708 (“The committee
amendment does not redefine navigable waters.
Instead, the committee amendment intends to assure
continued protection of all the Nation’s waters, but
allows States to assume the primary responsibility for
protecting those lakes, rivers, streams, swamps,
marshes, and other portions of the navigable waters
outside the [ C]orps program in the so-called phase I
waters” (emphasis added)). Because Illinois could have
taken advantage of the opportunities offered to it
through § 404(g), the federalism concerns to which the
majority adverts are misplaced. The Corps’
interpretation of the statute as extending beyond
navigable waters, tributaries of navigable waters, and
wetlands adjacent to each is manifestly reasonable and
therefore entitled to deference.
Iv
Because I am convinced that the Court’s miserly
construction of the statute is incorrect, I shall comment
bnefly on petitioner’s argument that Congress is without
* *694 power to prohibit it from filling any part of the
31 acres of ponds on its property in Cook County,
Illinois. The Corps’ exercise of its § 404 permitting
power over “isolated” waters that serve as habitat for
migratory birds falls well within the boundaries set by
this Court’s Commerce Clause jurisprudence.
In United States v Lopez. 514 U.S. 549. 558-559. 115
S.Ct. 1624. 131 L.Ed.2d 626 (1995) , this Court
identified “three broad categories of activity that
Congress may regulate under its commerce power”: (1)
channels of interstate commerce; (2) instrumentalities
of interstate *193 commerce, or persons and things in
interstate commerce; and (3) activities that
“substantially affect” interstate commerce. The
migratory bird rule at issue here is properly analyzed
under the third category. In order to constitute a proper
exercise of Congress’ power over intrastate activities
that “substantially affect” interstate commerce, it is not
necessary that each individual instance of the activity
substantially affect commerce; it is enough that, taken
in the aggregate, the class of activities in question has
such an effect. Perez v United States. 402 U.S. 146.91
S.Ct. 1357. 28 L.Ed.2d 686 ( 1971 ) (noting that it is the
“class” of regulated activities, not the individual
instance, that is to be considered in the “affects”
*192 It is particularly ironic for the Court to raise the

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Page 17
commerce analysis); see also Yodel. 452 U.s.. at 277.
101 S.Ct. 2352: Wickard v. Filburn. 317 U.S. 111.
127-128. 63 S.Ct. 82. 87 L.Ed 122 (1942) .
The activity being regulated in this case (and by the
Corps’ § 404 regulations in general) is the discharge of
fill material into water. The Corps did not assert
jurisdiction over petitioner’s land simply because the
waters were “used as habitat by migratoiy birds.” It
asserted jurisdiction because petitioner planned to
discharge fill into waters “used as habitat by migratory
birds.” Had petitioner intended to engage in some other
activity besides discharging fill (i.e., had there been no
activity to regulate), or, conversely, had the waters not
been habitat for migratory birds (i.e., had there been no
basis for federal jurisdiction), the Corps would never
have become involved m petitioner’s use of its land.
There can be no doubt that, unlike the class of activities
Congress was attempting to regulate in United Star es v
Morrison. 529 U.S. 598. 613. 120 S.Ct. 1740. 146
L.Ed 2d 658(2000 ) (“ [ g]ender-niotivated crimes”), and
Lovez. 514 U.S.. at 561. 514 U.S. 549 (possession of
guns near school property), the discharge of fill material
into the Nation’s waters is almost always undertaken for
economic reasons. See V. Albrecht & B. Goode,
Wetland Regulation in the Real World, Exh. 3
(Feb.1994) (demonstratmg that the overwhelrnmg
majority of acreage for which § 404 *194 permits are
sought is intended for commercial, industrial, or other
economic use) FFN 151
FN1 5 . The fact that petitioner can conceive of
some people who may discharge fill for
noneconomic reasons does not weaken the
legiurnacy of the Corps’ jurisdictional claims.
As we observed in Perez v United States. 402
US. 146. 91 S.Ct 1357. 28 L.Ed2d 686
( 1971) , “ [ wjhere the class of activities is
regulated and that class is within the reach of
federal power, the courts have no power to
excise, as trivial, individual instances of the
class.” Id.. at 154. 91 S.Ct. 1357 (internal
quotation marks omitted).
Moreover, no one disputes that the discharge of fill
into. “isolated” waters that serve as migratory bird
habitat will, in the aggregate, adversely affect migratory
bird populations. See, e g., 1 Secretary of the Interior,
Report to Congress, The Impact of Federal Programs on
Wetlands: The Luwer Mississippi Alluvial Plain d l i i i
the Prairie Pothole Region 79-80 (Oct.1988) (noting
that “isolated,” phase 3 waters “are among the most
important and also [ the] most threatened ecosystems in
the United States” because “ [ t]hey are prime nesting
grounds for many species ofNorth American waterfowl
...“ and provide “ [ u]p to 50 percent of the [ US.]
production of migratory waterfowl”). Nor does
petitioner dispute that the particular waters it seeks to
fill are home to many important species of **695
migratory birds, including the second-largest breeding
colony of Great Blue Herons in northeastern Illinois,
App. to Pet. for Cert. 3a, and several species of
waterfowl protected by international treaty and Illinois
endangered species laws, Brief for Federal Respondents
7. FFN161
FNI6 . Other bird species using petitioner’s
site as habitat include the “ ‘Great Egret,
Green-backed Heron, Black-crowned Night
Heron, Canada Goose, Wood Duck, Mallard,
Greater Yellowlegs, Belted Kingfisher,
Northern Waterthrush, Louisiana Waterthrush,
Swamp Sparrow, and Red-winged Blackbird.’
“ Brief for Petitioner 4, n. 3.
In addition to the intrinsic value of migratory birds, see
Missouri v Holland. 252 U.S. 416. 435. 40 S.Ct. 382.
64 L.Ed. 641 (1920 ) (noting the importance of
migratory birds as “protectors of our forests and our
crops” and as “a food supply”), it is undisputed that
*195 literally millions ofpeople regularly participate in
birdwatching and hunting and that those activities
generate a host of commercial activities of great value.
IFN 171 The causal connection between the filling of
wetlands and the decline of commercial activities
associated with migratory birds is not “attenuated,”
Morrison. 529 U.S.. at 612, 120 S.Ct. 1740 : it is direct
and concrete. Cf. Gibbs v Babbitt. 214 F.3d 483.
492-493 (C.A 4 2000 ) (“The relationship between red
wolf takings and interstate commerce is quite
direct--with no red wolves, there will be no red wolf
related tourism ...“). -
FNI7 . In 1984, the U.S. Congress Office of
Technology Assessment found that. in 1980,
5.3 million Americans hunted migratory birds,
spending $638 million. U.S. Congress. Office
of Technology Assessment, Wetlands: Their
Use and Regulation 54 (OTA-O-206; Mar.
1984). More than 100 million Americans
spent almost $14.8 billion in 1980 to watch
and photograph fish and wildlife. Thid. Of
17.7 million birdwatchers. 14.3 million took
trips In under ii., ubserve, fecil, UI pbutugrdph
waterfowl, and 9.5 million took trips
specifically to view other water-associated
birds, such as herons like those residing at
petitioner’s site. U.S. Dept. of Interior, U.S.
Fish and Wildlife Service and U.S. Dept. of

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Page 18
Commerce, Bureau of Census, 1996 National
Survey of Fishing, Hunting, and Wildlife-
Associated Recreation 45, 90 (issued Nov.
1997).
Finally, the migratory bird rule does not blur the
“distinction between what is truly national and what is
truly local.” Morrison. 529 U.S.. at 617- 618. 120
S.Ct. 1740 . Justice Holmes cogently observed in
Missouri v. Holland that the protection of migratory
birds is a textbook example of a national problem.
U.S.. at 435. 40 S.Ct. 382. 64 L.Ed. 641 (“It is not
sufficie:t to rely upon the States [ to protect migratory
birds]. The reliance is vain ...“). The destruction of
aquatic migratory bird habitat, like so many other
environmental problems, is an action in which the
benefits (e g., a new landfill) are disproportionately
local, while many of the costs (e.g., fewer migratory
birds) are widely dispersed and often borne by citizens
living in other States. In such situations, described by
economists as involving “externalities,” federal
regulation is both appropriate and necessary. Revesz,
*I96Rehabilitating Interstate Competition: Rethinking
the “Race-to-the-Bottom” Rationale for Federal
Environmental Regulation. 67 N.Y.U.L.Rev. 1210.
1222 (1992 ) (“The presence of interstate externalities
is a powerful reason for intervention at the federal
level”); cf. Hodel. 452 U.S.. at 281-282. 101 S.Ct .
(deferring to Congress’ finding that nationwide
standards were “essential” in order to avoid “destructive
interstate competition” that might undermine
environmental standards). Identifying the Corps’
jurisdiction by reference to waters that serve as habitat
for birds that migrate over state lines also satisfies this
Court s expressed desire for some “jurisdictional
element” that limits federal activity to its proper scope.
Morrison. 529 U.S.. at 612. 120 S.Ct. 1740 .
The power to regulate commerce among the several
Statesnecessarily and properly includes the power to
preserve the natural resources that generate such
commerce. Cf. **696Sporh e v. Nebraska er rd
Douglas. 458 U.S. 941. 953. 102 S.Ct. 3456. 73
L.Ed.2d 1254(1982 ) (holding water to be an “article of
commerce”). Migratory birds, and the waters on which
they rely, are such resources. Moreover, the protection
of migratory birds is a well-established federal
responsibility. As Justice Holmes noted in Missouri v.
Holland . the federal interest in protecting these birds is
of “the first magnitude.” 252 U.S.. at 435. 40 S.Ct .
382. Because of thcii u iniIuiy u Luie, they “tan be
protected only by national action.”
Whether it is necessary or appropriate to refuse to
allow petitioner to fill those ponds is a question on
which we have no voice. Whether the Federal
Government has the power to require such permission,
however, is a question that is easily answered. If, as it
does, the Commerce Clause empowers Congress to
regulate particular “activities causing air or water
pollution, or other environmental hazards that may have
effects in more than one State,” Hodel. 452 U.S.. at
282. 101 S.Ct. 2352 . it also empowers Congress to
control individual actions that, m the aggregate, would
have the same effect. *197 Perez. 402 U.S.. at 154. 91
S.Ct. 1357: Wickard. 317 U.S.. at 127-128. 63 S.Ct.
82. FFNI81 There is no merit in petitioner’s
constitutional argument.
FNI 8 . Justice THOMAS is the only Member
of the Court who has expressed disagreement
with the “aggregation principle.” United
States v Lopez, 514 U.S. 549. 600. 115 S.Ct.
1624. 131 L.Ed.2d 626 (1995 ) (concumng
opinion).
Because I would affirm the judgment of the Court of
Appeals, I respectfully dissent.
121 S.Ct. 675, 531 U.S. 159, 148 L.Ed.2d 576, 69
USLW 4048, 51 ERC 1833, 31 Envtl. L. Rep. 20,382,
1 Cal. Daily Op. Serv. 269,2001 Daily Journal D.A.R.
267, 2001 CJ C.A.R. 346, 14 Fla. L. Weekly Fed. S48
END OF DOCUMENT

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Page 1
106 S.Ct. 455
88 L.Ed.2d 419, 54 USLW 4027, 23 ERC 1561, 16 Envtl. L. Rep. 20,086
(Cite as: 474 U.S. 121, 106 S.Ct. 455)
Supreme Court of the United States
UNITED STATES, Petitioner
V.
RIVERSiDE BAYVIEW HOMES, INC., et al.
No. 84-701.
Argued Oct. 16, 1985.
Decided Dec. 4, 1985.
Corps of Engineers brought action to enjoin owner
from filling wetlands without permission of the Corps.
The District Court for the Eastern District of Michigan
granted relief and owner appealed. The Court of
Appeals for the Sixth Circuit, 615 F 2d 1363 .
remanded. The District Court again granted relief and
landowner again appealed. The Court ofAppeals, 7 .
F 2d 391 . reversed and certiorari was granted. The
Supreme Court, Justice White, J., held that: (I) Corps
of Engineers regulations extended Corps regulatory
authority to wetlands, and (2) Corps definition ofwaters
as including wetlands adjacent to navigable waters,
even if not inundated or frequently flooded by the
navigable water, was reasonable under the statutory
authority.
Reversed.
West Headnotes
[ fl Environmental Law 136
149Ek136 Most Cited Cases
(Formerly 1 99k25.7(6. 1), 1 99k25.7(6) Health and
Environment)
Any discharge of dredged or fill materials into
navigable waters, defined as waters of the United
States, is forbidden unless authorized by permit issued
by the Corps of Engineers. Federal Water Pollution
Control Act Amendments of 1972 (Clean Water Act),
§ 301, 404, 502, as amended, 33 U.S.C.A. 6 1311,
1344 . 1362.
jfl Environmental Law 136
l49Ek136 Most Cited Cases
(Formerly I 99k25.7( 13.1), 1 99k25.7( 13) Health and
Environment)
l49Ek120 Most Cited Cases
(Formerly I 99k25.7(l 3.1), 1 99k25.7(13) Health and
Environment)
Corps of Engineers may transfer to the states the
authority to issue permits to discharge dredged or fill
material into navigable waters if the states have devised
federally approved permit program; absent such an
approved program, the Corps retains jurisdiction to
issue such permits for all waters of United States.
Federal Water Pollution Control Act Amendments of
1972 (Clean Water Act), § 301,404,502, as amended,
33 U.S.C.A. 1311,1344,1362 .
j J Eminent Domain 2(1.2)
148k2(l.2) Most Cited Cases
Requirement that a person obtain a permit before
engaging in a certain use of his or her property does not
itself take the property in any sense; even if permit is
denied, there may be other viable uses available to the
owner and only when a permit is denied and the effect
of the denial is to prevent economically viable use of
the land can it be said that a taking has occurred.
1 1 Eminent Domain E 281
l48k281 Most Cited Cases
So long as compensation is available for those whose
property is in fact taken, governmental action is not
unconstitutional.
j 1 Eminent Domain 281
l48k281 Most Cited Cases
Possibility that application ofa regulatory program may
in some instances result in the taking of individual
pieces of property is no justification for use of
narrowing constructions to curtail the program if
compensation will, in any event, be available in those
cases where taking has occurred.
L .1 Federal Courts 1O73.I
I 7OBkl 073.1 Most Cited Cases
(Formerly I 7OBk 1073)
If Corps of Engineers has effectively taken property by
denying permit, owner’s proper course is not to resist
the Corps’ suit for enforcement by denying that the
regulation covers the property but, rather, to initiate a
suit for compensation in the claims court.
J J Environmental Law 12O
171 Environmental Law 128

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Page 2
149Ek 128 Most Cited Cas’ s
(Formerly 199k25.5(6) Health and Environment)
Inundation or frequent flooding by adjacent body of
navigable water is not a sine qua non of a wetland under
Corps of Engineers’ regulation extending permit
requirement to all wetlands adjacent to navigable or
interstate waters and their tributaries. Federal Water
Pollution Control Act Amendments of 1972 (Clean
Water Act), § 404, as amended, 33 U.S.C.A. 61344 .
J j Environmental Law 136
l49Ekl36 Most Cited Cases
(Formerly l99k2S.7(4) Health and Environment)
Jj Environmental Law 1 28
149Ek 128 Most Cited Cases
(Formerly 199k25.7(4) Health and Environment)
Fact that Army Corps of Engineers’ definition of
“waters” subject to its regulation may include some
wetlands which do not have a significant effect on water
quality and the aquatic ecosystem does not render the
definition invalid. Federal Water Pollution Control Act
Amendments of 1972 (Clean Water Act), § 404, as
amended, 33 U.S.C.A. 6 1344 .
ll i Statutes 219(3)
36lk219(3) Most Cited Cases
j J Environmental Law 123
l49Ekl 23 Most Cited Cases
(Formerly 199k25.7(4) Health and Environment)
Property which was characterized by the presence of
vegetation requiring saturated soil conditions for
growth and reproduction, which was saturated because
of groundwater, and which was adjacent to a body of
navigable water was subject to Corps of Engineers
regulation and permit was required before dredged or
fill material could be placed on the property. Federal
Water Pollution Control Act Amendments of 1972
(Clean Water Act), § 404, as amended, U.S.C.A. 6
1344.
121 Statutes E 219(4)
361k219(4 Most Cited Cases
Agency’s construction of a statute it is charged with
enforcing is entitled to deference if it is reasonable and
not in conflict with expressed intent of Congress.
i!.ffl Administrative Law and Procedure 387
I 5Ak387 Most Cited Cases
Faced with problem of defining the bounds of its
regulatory authonty, agency may appropriately look to
the legislative history and underlying policies of its
statutory grants of authority.
1111 Environmental Law 128
149Ekl28 Most Cited Cases
(Formerly 199k25.7(4) Health and Environment)
Corps of Engineers had statutory authority to extend its
requirement for permits for dredged or fill material to
wetlands adjacent to n vigab1e or iuleislate watcis,
even if there is no inundation or frequent flooding of
the wetland by the adjacent water. Federal Water
Pollution Control Act Amendments of 1972 (Clean
Water Act), § 404, as amended, 33 U.S.C.A. 6 1344 .
Refusal by Congress to overrule an agency’s
construction of legislation is at least some evidence of
the reasonableness of that construction, particularly
where the administrative construction has been brought
to Congress’ attention through legislation specifically
designed to supplant it.
**456 *121 Syllabus FFN*1
N! The syllabus constitutes no part of the
opinion of the Court but has been prepared by
the Reporter of Decisions for the convenience
of the reader. See United States v. Detroil
Lumber Co. 200 U.S. 321. 337. 26 S.Ct. 282.
287. 50 L.Ed. 499 .
The Clean Water Act prohibits any discharge of
dredged or fill materials into “navigable
waters”--defined as the “waters of the United
States”--unless authorized by a permit issued by the
Army Corps of Engineers (Corps). Construing the Act
to cover all “freshwater wetlands” that are adjacent to
other covered waters, the Corps issued a regulation
defining such wetlands 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
vegetation typically adapted for life in saturated soil
conditions.” After respondent Riverside Bayview
Homes, Inc. (hereafter respondent), began placing fill
materials on its properly near the shores of Lake St.
Clair, Michigan. the Corps filed suit in Federal District
Court to enjoin respondent from filling its property
without the Corps’ permission. Finding that
respondent’s property was characterized by the presence
of vegetation requiring saturated soil conditions for
growth, th it the suusic of su li soil iuuditiuiis W4 5
ground water, and that the wetland on the property was
adjacent to a body of navigable water, the District Court
held that the property was wetland subject to the Corps’
permit authority. The Court of Appeals reversed,
construing the Corps’ regulation to exclude from the

-------
Page 3
category of adjacent wetlands--and hence from that of
“waters of the United States”--wetlands that are not
subject to flooding by adjacent navigable waters at a
frequency sufficient to support the growth of aquatic
vegetation. The court took the view that the Corps’
authority under the Act and its implementing
regulations must be narrowly * *457 construed to avoid
a taking without just compensation in violation of the
Fifth Amendment. Under this construction, it was held
that respondent’s property was not within the Corps
jurisdiction, because its semi-aquatic characteristics
were not the result of frequent flooding by the nearby
navigable waters, and that therefore respondent was free
to fill tE property without obtaining a permit.
Held
1. The Court of Appeals erred in concluding that a
narrow reading of the Corps’ regulatory jurisdiction
over wetlands was necessary to avoid a taking problem.
Neither the imposition of the permit requirement *122
itself nor the denial of a permit necessanly constitutes
a taking. And the Tucker Act is available to provide
compensation for takings that may result from the
Corps’ exercise of jurisdiction over wetlands. Pp.
458-460.
2. The District Court’s findings are not clearly
erroneous and plainly bring respondent’s property
within the category of wetlands and thus of the “waters
of the United States” as defined by the regulation in
question. Pp. 460-461.
3. The language, policies, and history of the Clean
Water Act compel a finding that the Corps has acted
reasonably in interpreting the Act to require permits for
the discharge of material into wetlands adjacent to other
“waters of the United States.” Pp. 461-465.
729 F.2d 391 (CA6 1984 , reversed.
WHITE, J., delivered the opinion for a unanimous
Court.
Kathryn A. Oberly argued the cause for the United
States. With her on the briefs were former Solicitor
General Lee. Acting Solicitor General Fried, Assistant
Attorney General Habicht, Deputy Solicitor General
Claiborne, and Anne S Almy.
Edgar B. Washburn argued the cause for respondents.
With bun on the brief was Richurd K Gwnupp.
* Briefs of amic: curiae urging reversal were filed for
the National Wildlife Federation Ct al. by Jerry
Jackson, Frank J. Kelley, Attorney General of
Michigan, and Louis Caruso. Solicitor General; and for
the State of California et al. by John K. Van de Kanip,
Attorney General of California, N. Gregory Taylor and
Theodora Berger, Assistant Attorneys General, and
Steven H. Kaufmann and David W. Hamilton, Deputy
Attorneys General, Joseph I. Lieberman, Attorney
General of Connecticut, Michael A. Lilly, Attorney
General of Hawaii, Neil F. Hartigan, Attorney General
of Illinois, and Jill Wine-Banks, Solicitor General,
William J. Guste, Jr., Attorney General of Louisiana,
Stephen H. Sachs, Attorney General of Maryland,
Hubert H. Humphrey III, Attorney General of
Minnesota, William L. Webster, Attorney General of
Missouri, Mike Greely, Attorney General of Montana,
Robert M Spire, Attorney General of Nebraska, Paul
Bardacke, Attorney General of New Mexico, Lacy H.
Thornburg, Attorney General ofNorth Carolina, Arlene
Violet, Attorney General of Rhode Island, W.J. Michael
Cody, Attorney General of Tennessee, Jeffley L.
Amestoy, Attorney General ofVermont, Charlie Brown,
Attorney General of West Virginia, and Bronson C. La
Folleite, Attorney General of Wisconsin.
Briefs of amici curiae urging affirmance were filed for
the American Petroleum Institute by Stark Ritchie and
James K. Jackson; for the Citizens ofChincoteague for
a Reasonable Wetlands Policy by RichardR Nageotte;
for the Mid-Atlantic Developers Association by
Kenneth D McPherson; and for the Pacific Legal
Foundation Ct al. by Ronald A. Zumbrun and Sam
Kazman
R. Sarah Compton and Robin S Conrad filed a brief
for the Chamber of Commerce of the United States as
amicus curiae.
*123 Justice WHITE delivered the opinion of the
Court.
This case presents the question whether the Clean
Water Act (CWA), 33 U.S.C. & 1251 et seq., together
with certain regulations promulgated under its authority
by the Army Corps of Engineers, authorizes the Corps
tâ require landowners to obtain permits from the Corps
before discharging fill material into wetlands adjacent
to navigable bodies of water and their tributaries.
I
[ 11121 The relevant provisions of the Clean Water Act
wigiuaLcd ui the Fcdcial Watci Pullutiuu Coutiol Act
Amendments of 1972, 86 Stat. 816, and have remained
essentially unchanged since that time. Under § 301
and 502 of the Act, 33 U.S.C. SS 1311 and any
discharge of dredged or fill materials into “navigable
waters”—deflned as the “waters of the United States”—is

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Page 4
forbidden unless authorized by a permit issued by the
Corps of Engineers pursuant to § 404, 33 U.S.C. 6
IFN1 1 After initially construing the Act to cover
only waters navigable in fact, in 1975 the Corps issued
interim final regulations redefining “the waters of the
United States” to include not only actually navigable
waters but also tributaries of such waters, interstate
waters and their tributaries, and nonnavigable intrastate
waters whose use or misuse could affect interstate
commerce. 40 Fed.Reg. 31320 *124 1975). More
importantly for present purposes, the Corps construed
the Act to cover all “freshwater wetlands” that were
adjacent to other covered waters. A “freshwater
wetland” was defined as an area that is “penodically
inundated” and is “normally characterized by the
prevalence of vegetation that requires saturated soil
conditions for growth and reproduction.” 33 CFR §
209.120(d)(2)(h ) (1976). In 1977, the Corps refined
its definition of wetlands by eliminating the reference to
periodic inundation and **458 making other minor
changes. The 1977 definition read as follows:
FNI. With respect to certain waters, the
Corps’ authority may be transferred to States
that have devised federally approved permit
programs. CWA § 404(g), as added, 91 Stat.
1600, 33 U.S.C. 6 1344(e) . Absent such an
approved program, the Corps retains
jurisdiction under § 404 over all “waters of the
United States.”
“The term ‘wetlands’ means 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 vegetation typically adapted for life in
saturated soil conditions. Wetlands generally
include swamps, marshes, bogs and similar areas.”
33 CFR 6 323.2(c) (1978) .
In 1982, the 1977 regulations were replaced by
substantively identical regulations that remain in force
today. See 33 CFR 6 323.2 (1985). FFN21
construction of a housing development. The Corps of
Engineers, believing that the property was an “adjacent
wetland” under the 1975 regulation defining “waters of
the United States,” filed suit in the United States
District Court for the Eastern District of Michigan,
seeking to enjoin respondent from filling the property
without the permission of the Corps.
*125 The District Court held that the portion of
respondent’s property lying below 575.5 feet above sea
level was a covered wetland and enjoined respondent
from filling it without a permit. Civ. No. 77-70041
(Feb. 24, 1977) (App. to Pet. for Cert. 22a); Civ. No.
77-70041 (June 21, 1979) (App. to Pet. for Cert. 32a).
Respondent appealed, and the Court of Appeals
remanded for consideration of the effect of the
intervening 1977 amendments to the regulation.
F.2d 1363(1980) . On remand, the District Court again
held the property to be a wetland subject to the Corps’
permit authority. Civ. No. 77-70041 (May 10, 1981)
(App. to Pet. for Cert. 42a).
Respondent again appealed, and the Sixth Circuit
reversed. 729 F.2d 391 (1984) . The court construed
the Corps’ regulation to exclude from the category of
adjacent wetlands--and hence from that of “waters of
the United States”--wetlands that were not subject to
flooding by adjacent navigable waters at a frequency
sufficient to support the growth of aquatic vegetation.
The court adopted this construction of the regulation
because, in its view, a broader definition of wetlands
might result in the taking of private property without
just compensation. The court also expressed its doubt
that Congress, in granting the Corps jurisdiction to
regulate the filling of “navigable waters,” intended to
allow regulation of wetlands that were not the result of
flooding by navigable waters. FFN31 Under the court’s
reading of the regulation, respondent’s property was not
within the Corps’ jurisdiction, because its semiaquatic
characteristics were not the result of frequent flooding
by the nearby navigable waters. Respondent was
therefore free to fill the property without obtaining a
permit.
E {L The regulations also cover certain
wetlands not necessarily adjacent to other
waters. See 33 CFR 66 323.2(a )(2) and (3)
( 1985) . These provisions are not now before
us.
Respondent Riverside Bayview Homes, Inc. (hereafter
respondent), owns 80 acres of low-lying, marshy land
near the shores of Lake St. Clair in Macomb County,
Michigan. In 1976, respondent began to place fill
materials on its property as part of its preparations for
In denying the Government’s petition for
rehearing, the panel reiterated somewhat more
strongly its belief that the Corps’ construction
of its regulation was “overbroad and
inconsistent with the language of the Act.”
729 F.2d. at 401 .
*126 We granted certiorari to consider the proper
interpretation of the Corps’ regulation defining “waters
of the United States” and the scope of the Corps’
jurisdiction under the Clean Water Act, both of which

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Page 5
were called into question by the Sixth Circuit’s ruling.
469 U.S. 1206. 105 S.Ct. 1166.84 L.Ed.2d 318 ( 1985) .
We now reverse.
II
The question whether the Corps of Engineers may
demand that respondent obtain a permit before placing
fill material on its property is primarily one of
regulatory and statutory interpretation: we must
determine whether respondent’s property is an **459
“adjacent wetland” withm the meaning of the applicable
regulation, and, if so, whether the Corps’ jurisdiction
over “navigable waters” gives it statutory authority to
regulate discharges of fill matenal into such a wetland.
In this connection, we first consider the Court of
Appeals’ position that the Corps’ regulatory authority
under the statute and its implementing regulations must
be narrowly construed to avoid a taking without just
compensation in violation of the Fifth Amendment.
UJ We have frequently suggested that governmental
land-use regulation may under extreme circumstances
amount to a “taking” of the affected property. See, e g,
Williamson County ReFional P/ann 1fl2 Comm ‘ n V
Hamilton Bank. 473 U.S. 172. 105 S.Ct 3108. 87
L.Ed.2d 126(1985); Penn Central Transportation Co
v New York City. 438 U.s 104. 98 S Ct 2646. 57
L.Ed.2d 631(1978) . We have never precisely defined
those circumstances, see Id.. at 123-128. 98 S.Ct.. at
2658-61 : but our general approach was summed up in
ARms v Tiburon. 447 U.S. 255. 260. 100 S.Ct. 2138.
2141. 65 L.Ed.2d 106 (1980) . where we stated that the
application of land-use regulations to a particular piece
of property is a taking only “if the ordinance does not
substantially advance legitimate state interests ... or
denies an owner economically viable use of his land.”
Moreover, we have made it quite clear that the mere
assertion of regulatory jurisdiction by a governmental
body does not constitute a regulatory taking.See
t I27Hodel v. Virpznia Surface MfnznR & Reclamation
Assn.. 452 U.S. 264. 293-297. 101 S.Ct. 2352.
2369-71. 69 L.Ed.2d 1 (1981) . The reasons are
obvious. A requirement that a person obtain a permit
before engaging in a certain use of his or her property
does not itself “take” the property in any sense: after
all, the very existence of a permit system implies that
permission may be granted, leaving the landowner free
to use the property as desired. Moreover, even if the
permit is denied, there may be other viable uses
available to the owner. Only when a permit is denied
and the CffCIL otthc dcuial is Lu pIcvcuL “c uuuuIh .dlly
viable” use of the land in question can it be said that a
taking has occurred.
141F51f61 If neither the imposition of the permit
requirement itself nor the denial of a permit necessarily
constitutes a taking, it follows that the Court ofAppeals
erred in concluding that a narrow reading of the Corps’
regulatory jurisdiction over wetlands was “necessary”
to avoid “a serious taking problem.” 729 F.2d. at 398.
[ FN4 ] We have held that, in general, “ [ e]quitable relief
is not available to enjoin an alleged taking of private
property for a public use, duly authorized bylaw, *128
when a suit for compensation can be brought against the
sovereign subsequent to a taking.” Ruckeishaus v
Monsanto Co. 467 U.S. 986. 1016. 104 S.Ct. 2862.
2880.81 L.Ed.2d 815 ( 1984 ) (footnote omitted). This
maxim rests on the principle that so long as
compensation is available for those whose property is
in fact taken, the governmental action is not
unconstitutional. **460 Williamson County. supra. 473
U.S.. at 194-195. 105 S.Ct. at 3120-3121 . For
precisely the same reason, the possibility that the
application of a regulatory program may in some
instances result in the taking of individual pieces of
property is no justification for the use of narrowing
constructions to curtail the program if compensation
will in any event be available in those cases where a
taking has occurred. Under such circumstances,
adoption of a narrowing construction does not
constitute avoidance of a constitutional difficulty, cf.
Achwander v. TVA. 297 U S. 288. 34 1-356. 56 S.Ct.
466. 480-87. 80 L.Ed 688 ( 1936 ) (Brandeis, 3.,
concurring); it merely frustrates permissible
applications of a statute or regulation. FFN51 Because
the Tucker Act, 28 U.S.C. 6 1491 , which presumptively
supplies a means of obtaining compensation for any
taking that may occur through the operation of a federal
statute, see Ruckeishaus v. Monsanto Co. supra. 467
U.S . at 1017. 104 S.Ct.. at 2880 is available to provide
compensation for takings that may result from the
Corps’ exercise ofjurisdiction over wetlands, the Court
of Appeals’ fears that application of the Corps’ permit
program might result in a taking did not justify the court
in adopting a *129 more limited view of the Corps’
authonty than the terms of the relevant regulation might
otherwise support. EFN61
EI Even were the Court of Appeals correct
in concluding that a narrowing constniction of
the regulation is necessary to avoid takings of
property through the application of the permit
requirement, the construction adopted—which
requires a showing of frequent flooding before
property may be classified as a wetland—is
hardly tailored to the supposed difficulty.
Vllivtlivi tlic dvw 1 uf pcluuI wuuld
constitute a taking in any given case would
depend upon the effect of the denial on the
owner’s ability to put the property to
productive use. Whether the property was
frequently flooded would have no particular

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Page 6
bearing on this question, for overbroad
regulation of even completely submerged
property may constitute a taking. See, e.g.,
Kaiser Aetna v United States. 444 U.S. 164.
100 S.Ct. 383. 62 L.Ed.2d 332 (1979) .
Indeed, it may be more likely that denying a
permit to fill frequently flooded property will
prevent economically viable use of the
property than denying a permit to fill property
that is wet but not flooded. Of course, by
excluding a large chunk of the Nation’s
wetlands from the regulatory defimtion, the
Court of Appeals’ construction might tend to
limit the gross number of takings that the
permit program would otherwise entail; but
the construction adopted still bears an
insufficiently precise relationship with the
problem it seeks to avoid.
E United States v Security Industrial
Bank. 459 U.S. 70. 103 S.Ct. 407.74 LEd 2d
235 (1982) , in which we adopted a narrowing
construction of a statute to avoid a taking
difficulty, is not to the contrary. In that case,
the problem was that there was a substantial
argument that retroactive application of a
particular provision of the Bankruptcy Code
would in every case constitute a taking; the
solution was to avoid the difficulty by
construing the statute to apply only
prospectively. Such an approach is sensible
where it appears that there is an identifiable
class of cases in which application of a statute
will necessarily constitute a taking. As we
have observed, this is not such a case: there is
no identifiable set of instances in which mere
application of the permit requirement will
necessarily or even probably constitute a
taking. The approach of adopting a limiting
construction is thus unwarranted.
FN6. Because the Corps has now denied
respondent a permit to fill its property,
respondent may well have a ripe claim that a
taking has occurred. On the record before us,
however, we have no basis for evaluating this
claim, because no evidence has been
introduced that bears on the question of the
extent to which denial of a permit to fill this
plopcrty will prcvcnt cconomically viabic
of the properly or frustrate reasonable
investment-backed expectations. In any
event, this lawsuit is not the proper forum for
resolving such a dispute: if the Corps has
indeed effectively taken respondent’s property,
respondent’s proper course is not to resist the
Corps’ suit for enforcement by denying that
the regulation covers the property, but to
initiate a suit for compensation in the Claims
Court. In so stating, of course, we do not rule
that respondent will be entitled to
compensation for any temporary denial of use
of its property should the Corps ultimately
relent and allow it to be filled. We have not
yet resolved the question whether
compensation is a constitutionally mandated
remedy for “temporary regulatory takings,”
see Williamson County Planning Comm ‘ n v
Hamilton Bank, 473 U.S. 172. 105 S.Ct. 3108.
87 L.Ed.2d 126(1985) , and this case provides
no occasion for deciding the issue.
III
jfl Purged of its spurious constitutional overtones, the
question whether the regulation at issue requires
respondent to obtain a permit before filling its property
is an easy one. The regulation extends the Corps’
authority under § 404 to all wetlands adjacent to
navigable or interstate waters and their tributaries.
Wetlands, in turn, are defined as lands 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
vegetation typically adapted for life in saturated soil
conditions.” 33 CFR 323.2(c) (19851 (emphasis
added). The plain language of the regulation refutes
the Court of Appeals’ conclusion that inundation or
“frequent flooding” by the adjacent body of water is a
sine qua non of a wetland under the regulation.
Indeed, the regulation could hardly state more clearly
that saturation by either surface or ground water is
sufficient to bring an area within the category of
wetlands, provided that *130 the saturation is sufficient
to and does support wetland vegetation.
The history of the regulation underscores the absence
of any requirement of **461 inundation. The interim
final regulation that the current regulation replaced
explicitly included a requirement of “periodi [ c]
inundation.” 33 CFR § 209.1 20(d)(2)(h ) (1976). In
deleting the reference to “penodic inundation’ from the
regulation as finally promulgated, the Corps explained
that it was repudiating the interpretation of that
language “as requiring inundation over a record period
of ycaro.” 42 rcd.Rcg. 37128(1977). In fashioning ito
own requirement of’ “frequent flooding” the Court of
Appeals improperly reintroduced into the regulation
precisely what the Corps had excised. FFN71

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Page 7
aj7_ The Court of Appeals seems also to have
rested its frequent- flooding requirement on
the language in the regulation stating that
wetlands encompass those areas that “under
normal circumstances do support” aquatic or
semi-aquatic vegetation. In the preamble to
the final regulation, the Corps explained that
this language was intended in part to exclude
areas characterized by the “abnormal presence
of aquatic vegetation in a non-aquatic area.”
42 Fed.Reg. 37128 (1977). Apparently, the
Court of Appeals concluded that the growth of
wetlands vegetation in soils saturated by
ground water rather than flooded by waters
emanating from an adjacent navigable water
or its tributaries was “abnormal” within the
meaning of the preamble. This interpretation
is untenable in light of the explicit statements
in both the regulation and its preamble that
areas saturated by ground water can fall within
the category of wetlands. It would be
nonsensical for the Corps to define wetlands
to include such areas and then in the same
sentence exclude them on the ground that the
presence of wetland vegetation in such areas
was abnormal. Evidently, the Corps had
something else in mind when it referred to
“abnormal” growth of wetlands
vegetation--namely, the aberrational presence
of such vegetation in dry, upland areas.
thJ Without the nonexistent requirement of frequent
flooding, the regulatory definition of adjacent wetlands
covers the property here. The District Court found that
respondent’s property was “characterized by the
presence of vegetation that requires saturated soil
conditions for growth and reproduction,”*131 App. to
Pet. for Cert. 24a, and that the source of the saturated
soil conditions on the property was ground water.
There is no plausible suggestion that these findings are
clearly erroneous, and they plainly bring the property
within the category of wetlands as defined by the
current regulation. In addition, the court found that the
wetland located on respondent’s property was adjacent
to a body of navigable water, since the area
characterized by saturated soil conditions and wetland
vegetation extended beyond the boundary of
respondent’s property to Black Creek, a navigable
waterway. Again, the court’s finding is not clearly
erroneous. Together, these findings establish that
respondent’s property is a wetland adjacent to a
navigable waterway. Hence, it is part of the “waters of
the United States” as defined by 33 CFR 6 323.2
( 1985) . and if the regulation itself is valid as a
construction of the term “waters of the United States” as
used in the Clean Water Act, a question which we now
address, the property falls within the scope of the Corps’
jurisdiction over “navigable waters” under § 404 of the
Act.
N
A
12] An agency’s construction of a statute it is charged
with enforcing is entitled to deference if it is reasonable
and not in conflict with the expressed intent of
Congress. Chemical Manufacturers As.sn. v Natural
Resources Defense Council. Inc. 470 U.S. 116. 125.
105 S.Ct. 1102. 1107-1 108. 84 L.Ed.2d 90 (1985);
Chevron U S.A. Inc v Natural Resources Defense
Council. Inc.. 467 U.S. 837. 842-845. 104 S.Ct. 2778.
278 1-2783. 81 L.Ed.2d 694 ( 1984) . Accordingly, our
review is limited to the question whether it is
reasonable, in light of the language, policies, and
legislative history of the Act for the Corps to exercise
jurisdiction over wetlands adjacent to but not regularly
flooded by rivers, streams, and other hydrographic
features more conventionally identifiable as “waters.”
IFN81
FN8. We are not called upon to address the
question of the authority of the Corps to
regulate discharges of fill material into
wetlands that are not adjacent to bodies of
open water, see 33 CFR 66 323.2(al(21 and
( 31(1985) , and we do not express any opinion
on that question.
*132 **462 On a purely linguistic level, it may appear
unreasonable to classify “lands,” wet or otherwise, as
“waters.” Such a simplistic response, however, does
justice neither to the problem faced by the Corps in
defining the scope of its authority under § 404(a) nor to
the realities of the problem of water pollution that the
Clean Water Act was intended to combat. In
determining the limits of its 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 transition 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 tind the limit 01 waters is tar horn obvious.
1 O1F 111 Faced with such a problem of defining the
bounds of its regulatory authority, an agency may
appropriately look to the legislative history and
underlying policies of its statutory grants of authority.

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Page 8
Neither of these sourcrs provides unambiguous
guidance for the Corps in this case, but together they do
support the reasonableness of the Corps’ approach of
defining adjacent wetlands as “waters” within the
meaning of 404(a). Section 404 onginated as part of
the Federal Water Pollution Control Act Amendments
of 1972, which constituted a comprehensive legislative
attempt “to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” CWA
§ 101, 33 U.S.C. 61251 . 1’his objective incorporated
a broad, systemic view of the goal of maintaining and
improving water quality: as the House Report on the
legislation put it, “the word ‘integrity’ ... refers to a
condition in which the natural structure and function of
ecosystems is [ are] maintained.” H.R.Rep. No.
92-911, p. 76 (1972). Protection of aquatic
ecosystems, Congress recognized, *133 demanded
broad federal authority to controlpoihition, for “ [ w]ater
moves in hydrologic cycles and it is essential that
discharge of pollutants be controlled at the source.”
S.Rep. No. 92-414, p. 77 (1972), U.S.Code Cong. &
Admin.News 1972, pp. 3668, 3742.
In keeping with these views, Congress chose to define
the waters covered by the Act broadly. Although the
Act prohibits discharges into “navigable waters,” see
CWA § 301(a), 404(a), 502(12), 33 U.S.C. 66
1311(a), 1344(a), 1362(12) , the Act’s definition of
“navigable waters” as “the waters of the United States”
makes it clear that the term “navigable” as used in the
Act is of limited import. In adopting this definition of
“navigable waters,” Congress evidently intended to
repudiate limits that had been placed on federal
regulation by earlier water pollution control statutes and
to exercise its powers under the Commerce Clause to
regulate at least some waters that would not be deemed
“navigable” under the classical understanding of that
term. See S.Conf.Rep. No. 92-1236, p. 144 (1972);
118 Cong.Rec. 33756-33757(1972) (statement ofRep.
Dingell).
Of course, it is one thing to recognize that Congress
intended to allow regulation of waters that might not
satisf ’ traditional tests of navigability; it is another to
assert that Congress intended to abandon traditional
notions of”waters” and include in that term “wetlands”
as well. Nonetheless, the evident breadth of
congressional concern for protection of water quality
and aquatic ecosystems suggests that it is reasonable for
the Corps to interpret the term “waters” to encompass
wetlands adjacent to waters as more conventionally
defined. Following the lead 01 the Environmental
Protection Agency, see 38 Fed.Reg. 10834 (1973), the
Corps has determined that wetlands adjacent to
navigable waters do as a general matter play a key role
in protecting and enhancing water quality:
**463 “The regulation of activities that cause water
pollution cannot rely on ... artificial lines ... but must
focus on all waters that together form the entire
aquatic system. *134 Water moves in hydrologic
cycles, and the pollution of this part of the aquatic
system, regardless of whether it is above or below an
ordinary high water mark, or mean high tide line, will
affect the water quality of the other waters within that
aquatic system.
“For this reason, the landward limit of Federal
jurisdiction under Section 404 must include any
adjacent wetlands that form the border of or are in
reasonable proximity to other waters of the United
States, as these wetlands are part of this aquatic
system.” 42 Fed.Reg. 37128 (1977).
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 EPA’s
technical expertise--is unreasonable. In view of the
breadth of federal regulatory authority contemplated by
the Act itself and the inherent difficulties of defining
precise bounds to regulable waters, the Corps’
ecological judgment about the relationship between
waters and their adjacent wetlands provides an adequate
basis for a legal judgment that adjacent wetlands may
be defined as waters under the Act.
11.21 This holds true even for wetlands that are not the
result of flooding or permeation by water having its
source in adjacent bodies of open water. The Corps has
concluded that wetlands may affect the water quality of
adjacent lakes, rivers, and streams even when the waters
of those bodies do not actually inundate the wetlands.
For example, wetlands that are not flooded by adjacent
waters may still tend to drain into those waters. In such
circumstances, the Corps has concluded that wetlands
may serve to filter and purif i water draining into
adjacent bodies of water, see 33 CFR 6 320.4(b )(2)(vii)
( 1985) , and to slow the flow of surface runoff into
lakes, rivers, and streams and thus prevent flooding and
erosion, see 66 320.4(b )(2 )(iv) and (v ) . In addition,
adjacent wetlands may “serve significant natural
biological functions, including food chain production,
general habitat, and nesting, *135 spawning, rearing
and resting sites for aquatic ... species.” j
320.4(b )(2)(i) . In short, the Corps has concluded that
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. Again, we cannot say that the Corps’
judgment on these matters is unreasonable, and we
therefore conclude that a definition of “waters of the
United States” encompassing all wetlands adjacent to
other bodies of water over which the Corps has
jurisdiction is a permissible interpretation of the Act.
Because respondent’s property is part of a wetland that

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Page 9
actually abuts on a navigable waterway, respondent was
required to have a permit in this case. FN91
Of course, it may well be that not every
adjacent wetland is of great importance to the
environment of adjoining bodies of water.
But the existence of such cases does not
seriously undermine the Corps’ decision to
define all adjacent wetlands as “waters.” If it
is reasonable for the Corps to conclude that in
the majority of cases, adjacent wetlands have
significant effects on water quality and the
‘aquatic ecosystem, its definition can stand.
That the definition may include some wetlands
that are not significantly intertwined with the
ecosystem of adjacent waterways is of little
moment, for where it appears that a wetland
covered by the Corps’ defuuiion is in fact
lacking in importance to the aquatic
environment—or where its importance is
outweighed by other values--the Corps may
always allow development of the wetland for
other uses simply by issuing a permit. See
CFR 320 4(b)(4) (1985) .
B
Following promulgation of the Corps’ interim final
regulations in 1975, the Corps’ assertion of authority
under § 404 over waters not actually navigable
engendered some congressional opposition. The
controversy came to a head during Congress’
consideration of the Clean Water Act of **464 1977, a
major piece of legislation aimed at achieving “intenm
improvements within the existing framework” of the
Clean Water Act. H.R.Rep. No. 95-139, pp. 1-2
(1977). In the *136 end, however, as we shall explain,
Congress acquiesced in the administrative construction.
regulatory duties by federally approved state programs.
S. 1952, 95th Cong., 1st Sess., § 49(b) (1977). On the
floor of the Senate, however, an amendment was
proposed limiting the scope of”navigable waters” along
the lines set forth in the House bill. 123 Cong.Rec.
26710-26711 (1977).
In both Chambers, debate on the proposals to narrow
the definition of navigable waters centered largely on
the issue of wetlands preservation. See Id., at
10426-10432 (House debate); Id., at 26710-26729
(Senate debate). Proponents of a more limited § 404
jurisdiction contended that the Corps’ assertion of
jurisdiction over wetlands and other nonnavigable
“waters” had far exceeded what Congress had intended
in enacting § 404. Opponents of the proposed changes
argued that a narrower definition of “navigable waters”
for purposes of § 404 would exclude vast stretches of
crucial wetlands from the Corps’ jurisdiction, with
detrimental effects on wetlands ecosystems, water
quality, and the aquatic environment generally. The
debate, particularly in the Senate, was lengthy. In the
House, the debate ended with the adoption of a
narrowed definition of”waters”; but in the Senate the
limiting *137 amendment was defeated and the old
definition retained. The Conference Committee
adopted the Senate’s approach: efforts to narrow the
definition of “waters” were abandoned; the legislation
as ultimately passed, in the words of Senator Baker,
“retain(ed] the comprehensive jurisdiction over the
Nation’s waters exercised in the 1972 Federal Water
Pollution Control Act.” FFNI 01
FNIO . 123 Cong.Rec. 39209(1977); see also
Id., at 39210 (statement of Sen. Wallop); id.,
at 39196 (statement of Sen. Randolph); Id., at
38950 (statement of Rep. Murphy); Id., at
38994 (statement of Rep. Ambro).
Critics of the Corps’ permit program attempted to insert
limitations on the Corps’ § 404 jurisdiction into the
1977 legislation: the House bill as reported out of
committee proposed a redefinition of “navigable
waters” that would have limited the Corps’ authority
under § 404 to waters navigable in fact and their
adjacent wetlands (defined as wetlands periodically
inundated by contiguous navigable waters). HR.
3199, 95th Cong., 1st Sess., § 16 (1977). The bill
reported by the Senate Committee on Environment and
Public Works, by connast, contained no redefinition of
the scope of the “navigable waters” covered by § 404,
and dealt with the perceived problem of overregulation
by the Corps by exempting certain activities (primarily
agricultural) from the permit requirement and by
providing for assumption of some of the Corps’
Jj J The significance of Congress’ treatment of the
Corps’ § 404 jurisdiction in its consideration of the
Clean Water Act of 1977 is twofold. First, the scope of
the Corps’ asserted jurisdiction over wetlands was
specifically brought to Congress’ attention, and
Congress rejected measures designed to curb the Corps’
jurisdiction in large part because of its concern that
protection of wetlands would be unduly hampered by a
narrowed definition of”navigable waters.” Although
we are chary of attributing significance to Congress’
ftllure to act, a rel%isal by Congress to overrule an
agency’s construction of legislation is at least some
evidence of the reasonableness of that construction,
particularly where the administrative construction has
been brought to Congress’ attention through legislation
specifically designed to supplant it. See Bob Jones

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Page 10
University v. United State.s. 461 U.S. 574. 599- 601.
103 S.Ct. 2017. 2032-34. 76 L.Ed.2d 157 (1983);
United States v. Rutherford. 442 U.S. 544. 554. and n.
10. 99 S.Ct. 2470. 2476. and n. 10. 61 L.Ed.2d 68
( 1979) .
Second, it is notable that even those who would have
restricted the reach of the Corps’ jurisdiction would
have done so not **465 by removing wetlands
altogether from the definition of “waters of the United
States,” but only by restricting the scope of”navigable
waters” under § 404 to waters navigable in fact and
their adjacent wetlands. In amending the definition of
“navigable waters” for purposes of § 404 only, the
backers of the House bill would have left intact the
existing definition of”navigable waters” for purposes of
§ 301 of the *138 Act, which generally prohibits
discharges of pollutants into navigable waters. As the
House Report explained: “‘Navigable waters’ as used
in section 301 includes all of the waters of the United
States including their adjacent wetlands.” H.R.Rep.
No. 95-139, p. 24 (1977). Thus, even those who
thought that the Corps’ existing authority under § 404
was too broad recognized (1) that the definition of
“navigable waters” then in force for both § 301 and §
404 was reasonably interpreted to include adjacent
wetlands, (2) that the water quality concerns of the
Clean Water Act demanded regulation of at least some
discharges into wetlands, and (3) that whatever
jurisdiction the Corps would retain over discharges of
fill material after passage of the 1977 legislation should
extend to discharges into wetlands adjacent to any
waters over which the Corps retained jurisdiction.
These views provide additional support for a conclusion
that Congress in 1977 acquiesced in the Corps’
definition of waters as including adjacent wetlands.
Two featuresactually included in the legislation that
Congress enacted in 1977 also support the view that the
Act authorizes the Corps to regulate discharges into
wetlands. First, in amending § 404 to allow federally
approved state permit programs to supplant regulation
by the Corps of certain discharges of fill material,
Congress provided that the States would not be
permitted to supersede the Corps’ jurisdiction to
regulate discharges into actually navigable waters and
waters subject to the ebb and flow of the tide,
“including wetlands adjacent thereto.” CWA §
404(g)(l), 33 U.S.C. l344(g)(1) . Here, then,
Congress expressly stated that the term “waters”
included adjacent wetlands. lFNI 11 Second, the *139
1977 Act authorized an appropriation of $t5 million for
completion by the Department of Interior ofa “National
Wetlands Inventory” to assist the States “in the
development and operation of programs under this
Act.” CWA § 208(i)(2), 33 U.S.C. 1288(fl(2 ) . The
enactment of this provision reflects congressional
recognition that wetlands are a concern of the Clean
Water Act and supports the conclusion that in defining
the waters covered by the Act to include wetlands, the
Corps is “implementing congressional policy rather
than embarking on a frolic of its own.” Red Lion
Broadcasting Co v FCC, 395 U.S. 367. 375. 89 S.Ct.
1794. 1799. 23 L.Ed.2d 371 (1969) .
FNI 1 . To be sure, § 404(g)(1) does not
conclusively determine the construction to be
placed on the use of the term “waters”
elsewhere in the Act (particularly in § 502(7),
which contains the relevant definition of
“navigable waters”); however, in light of the
fact that the various provisions of the Act
should be read in pan materia, it does at least
suggest strongly that the term “waters” as used
in the Act does not necessarily exclude
“wetlands.”
C
We are thus persuaded that the language, policies, and
history of the Clean Water Act compel a finding that the
Corps has acted reasonably in interpreting the Act to
require permits for the discharge of fill material into
wetlands adjacent to the “waters of the United States.”
The regulation in which the Corps has embodied this
interpretation by its terms includes the wetlands on
respondent’s property within the class of waters that
may not be filled without a permit; and, as we have
seen, there is no reason to interpret the regulation more
narrowly than its terms would indicate. Accordingly,
the judgment of the Court of Appeals is
Reversed
106 S.Ct. 455, 474 U.S. 121, 88 L.Ed.2d 419, 54
USLW 4027, 23 ERC 1561, 16 Envtl. L. Rep. 20,086
END OF DOCUMENT

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3

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r 2t 1 1 1

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United States Environmental Protection Agency
Office of Wetlands, Oceans and Watersheds
Washington, D.C. 20460
United States Department of the Army
U.S. Amy Corps of Engineers
Washington, D.C. 20314
NOV 28 1995
MEMORANDUM TO THE FIELD -- Corps and EPA Regulatory Program Chiefs
SUBJECT: Application of Best Management Practices to Mechanical Silvicultural Site
Preparation Activities for the Establishment of Pine Plantations in the
Southeast
This memorandum! clarifies the applicability of forested wetlands best
management practices to mechanical silvicultural site preparation activities for the
establishment of pine plantations in the southeast Mechanical silvicultural site
preparation activities2 conducted in accordance with the best management practices
discussed below, which are designed to minimize impacts to the aquatic ecosystem, will
not require a Clean Water Act Section 404 permit. These best management practices
further recognize that certain wetlands should not be subject to unpermitted mechanical
silvicultural site preparation activities because of the adverse nature of potential impacts
associated with these activities on these sites.
This memorandum recognizes State expertise that is reflected in the development
and implementation of regionally specific best management practices (BMPs) associated
with forestry activities in wetlands. Such BMPs encourage sound silvicultural operations
while providing protection of certain wetlands functions and values. The U.S. Army
Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA)
believe that it is appropriate to apply the Clean Water Act Section 404 program in a
manner that builds from, and, is consistent with, this State experience. The Agencies will
support and assist State efforts to build upon these BMPs at the State level to ensure
that mechanical silvicultural site preparation is conducted in a manner that best reflects
the specific wetlands resource protection and management goals of each State.
Introduction
Forested wetlands exhibit a wide variety of water regimes, soils, and vegetation
types that in turn provide a myriad of functions and values. The States in the Southeast
contain forested wetlands systems that in many cases are also subject to ongoing timber
operations. In developing silvicultural BMPs, States have identified those specific

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forestry practices that will protect water quality. This guidance was developed to
respond to questions regardmg the applicability of Section 404 to mechanical silvicultural
site preparation activities. EPA and the Corps relied extensively on existing State
knowledge to protect aquatic ecosystems with BMPs, including the types of wetlands,
types of activities, and BMPs described below.
This memorandum reflects information gathered from the southeastern United
States, where mechanical silvicultural Site preparation activities are associated with the
establishment of pine plantations in wetlands.3 As such, this memorandum, and
particularly the descriptions of wetlands, activities, and BMPs, necessarily focus on this
area of the country. However, the guidance presented is generally applicable when
addressing mechanical silvicultural site preparation activities in wetlands elsewhere in the
country.
Circumstances Where Mechanical Silvicultural Site Preparation Activities Require
a Permit
The States, in coordination with the forestry community and the public, have
recognized that mechanical silvicukural site preparation activities may have measurable
and significant impacts on aquatic ecosystems when conducted in wetlands that are
permanently flooded, intermittently exposed, and semi-permanently flooded, and in
certain additional wetland communities that exhibit aquatic functions and values that are
more susceptible to impacts from these activities. For the wetland types identified in
this section, it is most effective to evaluate proposals for site preparation and potential
associated environmental effects on a case-by-case basis as part of the individual permit
process. Therefore, mechanical silvicultural site preparation activities in the areas listed
below require a permit. 4
A permit will be required in the following areas unless they have been so altered
through past practices (including the installation and continuous maintenance of water
management structures) as to no longer exhibit the distinguishing characteristics
described below (see “Circumstances Where Mechanical Silvicultural Site Preparation
Activities Do Not Require a Permit” below). Of course, discharges incidental to activities
in any wetlands that convert waters of the United States to non-waters always require
authorization under Clean Water Act Section 404.
1) Permanently flooded, intermittently exposed, and semi-permanently flooded
wetlands. The hydrology of permanently flooded wetland systems is characterized by
water that covers the land surface throughout the year in all years. The hydrology of
intermittently exposed wetlands is characterized by surface water that is present
throughout the year except in years of extreme drought. The hydrology of semi-
permanently flooded wetlands is characterized by surface water that persists throughout
the growing season in most years and, when it is absent, the water table is usually at or
very near the land surface. 5 Examples typical of these wetlands include Cypress-Gum
Swamps, Muck and Peat Swamps, and Cypress Strands/Domes.

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2) Riverine Bottomland Hardwood wetlands: seasonally flooded (or wetter)
bottomland hardwood wetlands within the first or second bottoms of the floodplains of
river systems. Site-specific characteristics of hydrology, soils, vegetation, and the
presence of alluvial features elaborated in paragraphs a, b, and c below will be
determinative of the boundary of riverine bottomland hardwood wetlands. National
Wetlands Inventory maps can pride a useful reference for the general location of these
wetlands on the landscape.
a) the hydrologic characteristics included in this definition refer to
seasonally flooded or wetter river floodplain sites where overbank flooding has
resulted in alluvial features such as well-defined floodplains, bottoms/terraces,
natural levees, and backswamps. For the purposes of this guidance definition,
“seasonally flooded” bottomland hardwood wetlands are characterized by surface
water that is present for extended periods, especially early in the growing season6
(usually greater than 14 consecutive days), but is absent by the end of the season
in most years. When surface water is absent, the water table is often near the
land surface. Field indicators of the presence of surface water include water-
stained leaves, drift lines, and water marks on trees.
b) the vegetative characteristics included in this definition refer to forested
wetlands where hardwoods dominate the canopy. For the purposes of this
guidance definition, riverine bottomland hardwoods do not include sites in which
greater than 25% of the canopy is pine.
c) the soil characteristics included in this definition refer to listed hydric
soils that are poorly drained or very poorly drained. For the purposes of this
guidance definition, riverine bottomland hardwoods do not include sites with
hydric soils that are somewhat poorly drained or that, at a particular site, do not
demonstrate chroma, concretions, and other field characteristics verifying it as a
hydric soil.
3) White Cedar Swamps: wetlands, greater than one acre in headwaters and
greater than five acres elsewhere, underlain by peat of greater than one meter, and
vegetated by natural white cedar representing more than 50% of the basal area, where
the total basal area for all tree species is 60 square feet or greater.
4) Carolina Bay wetlands: oriented, elliptical depressions with a sand rim, either
a) underlain by clay-based soils and vegetated by cypress; or, b) underlain by peat of
greater than one-half meter and typically vegetated with an overstory of Red, Sweet, and
Loblolly Bays.
5) Non-riverine Forest Wetlands: wetlands in this group are rare, high cjuality wet
forests, with mature vegetation, located on the Southeastern coastal plain, whose
hydrology is dominated by high water tables. Two forest community types fall into. This
group:7

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a) Non-riverine. Wet Hardwood Forests -- poorly drained mineral soil
interstream flats (comprising 10 or more contiguous acres), typically on the
margins of large peatland areas, seasonally flooded or saturated by high water
tables, with vegetation dominated (greater than 50% of basal area per acre) by
swamp chestnut oak, cherrybark oak, or laurel oak alone or in combination.
b) Non-riverine Swamp Forests -- very poorly drained flats (comprising 5
or more contiguous acres), with organic soils or mineral soils with high organic
content, seasonally to frequently flooded or saturated by high water tables, with
vegetation dominated by bald cypress, pond cypress, swamp tupelo, water tupelo,
or Atlantic white cedar alone or in combination.
The term “high quality” used in this characterization refers to generally undisturbed
forest stands, whose character is not significantly affected by human activities (e.g., forest
management). Non-riverine Forest wetlands dominated by red maple, sweetgum., or
loblolly pine alone or in combination are not considered to be of high quality, and
therefore do not require a permit.
7) Wet Marl Forests: hardwood forest wetlands underlain with poorly drained
marl-derived, high pH softs.
8) Tidal Freshwater Marshes: wetlands regularly or irregularly flooded by
freshwater with dense herbaceous vegetation, on the margins of estuaries or drowned
rivers or creeks.
9) Maritime Grasslands, Shrub Swamps, and Swamp Forests: barrier island
wetlands in dune swales and flats, underlain by wet mucky or sandy soils, vegetated by
wetland herbs, shrubs, and trees.
Circumstances Where Mechanical Silvicultural Site Preparation Activities Do Not
Require a Permit
Mechanical silvicultural site preparation activities in wetlands that are seasonally
flooded, intermittently flooded, temporarily flooded, or saturated, or in existing pine
plantations and other silvicultural sites (except as listed above), minimize impacts to the
aquatic ecosystem and do not require a permit if conducted according to the BMPs
listed below. Of course, silvicultural practices conducted in uplands never require a
Clean Water Act Section 404 permit.
The hydrology of seasonally flooded wetlands is characterized by surface water
that is present for extended periods, especially early in the growing season, but is absent
by the end of the season in most years (when surface water is absent, the water table is
often near the surface). The hydrology of intermittently flooded wetland systems is
characterized by substrate that is usually exposed, but where surface water is present for
variable periods without detectable seasonable periodicity. The hydrology of temporarily

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flooded wetlands is characterized by surface water that is present for brief periods during
the growing season, but also by a water table that usually lies well below the soil surface
for most of the season. The hydrology of saturated wetlands is characterized by
substrate that is saturated to the surface for extended periods dunng the growing season,
but also by surface water that is seldom present. 8 Examples typical of these wetlands
include Pine Flatwoods, Pond Pine Woodlands, and Wet Flats (e.g., certain
pine/hardwood forests).
Best Management Practices
Every State in the Southeast has developed BMPs for forestry to protect water
quality and all but two have also developed specific BMPs for forested wetlands. These
BMPs have been developed because silvicultural practices have the potential to result in
impacts to the aquatic ecosystem. Mechanical silvicultural site preparation activities
include shearing, raking, ripping, chopping, windrowing, piling, and other similar physical
methods used to Cut, break apart, or move logging debris following harvest. Impacts
such as soil compaction, turbidity, erosion, and hydrologic modifications can result if not
effectively controlled by BMPs. States have developed BMPs that address not only types
of wetlands and types of activties, but also detail specific measures to protect water
quality through establishing special management zones, practices for stream crossings,
and practices for forest road construction.
in developing forested wetlands BMPs, States in the Southeast have recognized
that certain silvicultural site preparation techniques are more effective when conducted
in areas that have drier water regimes. The BMPs stated below represent a composite
of State expertise to protect water quality from silvicultural impacts. These BMPs also
address the location, as well as the nature, of activities. The Corps and EPA believe
that these forested wetlands BMPs are effective in protecting water quality and therefore
are adopting them to protect these functions and values considered under Section 404.
The following forested wetlands BMPs are designed to minimize the impacts
associated with mechanical silvicultural site preparation activities in circumstances where
these activities do not require a permit (authorization from the Corps is necessary for
discharges associated with silvicultural site preparation in wetlands described above as
requiring a permit9). The BMPs include, at a minimum, the following:
1) position shear blades or rakes at or near the soil surface and windrow, pile,
and otherwise move logs and logging debris by methods that minimize dragging or
pushing through the soil to minimize soil disturbance associated with shearing,
raking, and moving trees, stumps, brush, and other unwanted vegetation;
2) conduct activities in such a manner as to avoid excessive soil compaction and
maintain soil tilth;
3) arrange windrows in such a manner as to limit erosion, overland flow, and

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runoff;
4) prevent disposal or storage of lop or logging debris in streamside management
zones -- defined areas adjacent to streams, lakes, and other waterbodies -- to
protect water quality;
5) maintain the natural contour of the site and ensure that activities do not
immediately or gradually convert the wetland to a non-wetland; and
6) conduct activities with appropriate water management mechanisms to minimize
off-site water quality impacts.
implementation
EPA and the Corps wifi continue to work closely with State forestry agencies to
promote the implementation of consistent and effective BMPs that facilitate sound
silvicultural practices. In those States where no BMPs specific to mechanical silvicultural
site preparation activities in forested wetlands are currently in place, EPA and the Corps
will coordinate with those States to develop BMPs. In the interim, mechanical
silvicultural site preparation activities conducted in accordance with this guidance will
not require a Section 404 permit
in order to ensure consistency in the application of this guidance over time,
changes to the vegetation of forested wetlands associated with human activities
conducted after the issuance of this guidance will not alter its applicabiety. For example,
this guidance is not intended to establish the requirement for a permit for mechanical
silvicultural site preparation where tree harvesting results in the establishment of site
characteristics for which a pei-mit would otherwise be required (e.g., where the selective
cutting of naturally occurring pine in a Riverine Bottomland Hardwood wetland Site with
originally greater than 25% pine in the canopy results in a site “where hardwoods
dominate the canopy”). In a similar manner, while harvesting of timber consistent with
the requirements of Section 404(f) is exempt from regulation and natumi changes (e.g.,
wildfire, succession) may change site characteristics, human manipulation of the
vegetative characteristics of a site does not alter its status for the purposes of this
guidance (e.g., removal of all the Atlantic White Cedar in an Atlantic White Cedar
Swamp does not eliminate the need for a permit for mechanical silvicultural site
preparation if the area would have required a permit before the removal of the trees).
Finally, the Agencies will encourage efforts at the State level to identify additional
wetlands which may be of special concern and could be incorporated into State BMPs
and cooperative programs, initiatives, and partnerships to protect these wetlands. To
facilitate this effort, stakeholders are encouraged to develop a process after the issuance
of this guidance to identify and protect unique and rare wetland sites on lands of the
participating stakeholders. EPA and the Corps will monitor the application of this
guidance, progress with conserving special wetland sites through cooperative programs

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and initiatives, and consider any new information, such as advances in silvicultural
practices, improvements to State BMPs, or data relevant to potential impacts to
wetlands, to determine whether the list of wetlands subject to the permit requirement
should be modified or other revisions to this guidance are appropriate.
1 This guidance is written to provide interpretation and clarification of existing EPA and
Corps regulations and does not change any substantive requirements of these regulations.
This memorandum is further intended to provide clarification regarding the exercise of
discretion under agent agency regulations.
2Mechanical silvicultural site preparation a include shearing, raking, ripping chopping,
windrowing, piling, and other similar physical methods used to cut, break apart, or move
logging debris following harvest for the establishment of pine plantations.
3lnformation was considered from the following States in the Southeast: Virginia, North
Carolina, South Carolina, Georgia, Florida, Tennessee, Alabama, Mississippi, Louisiana, and
Arkansas.
4The community descriptions draw extensively from: Schafale, M.P., and A.S. Weakley.
1990. Classification of the Natural Communities of North Carolina. North Carolina Natural
Heritage Program Raleigh, NC. 3 2 5pp.
SCowardin, L.M., et al. 1979. Classification of wetlands and deepwater habitats of the
United States. U.S. Fish and Wildlife Service, Washington, DC. l3lpp.
6Consistent With the 1987 Corps of Engineers Wetlands Delineation Manual, growing
season starting and ending dates are determined by the 28 degrees F or lower temperature
threshold.
8Cowardin et a], 1979.
9Contact the nearest Corps District listed at the end of this document for further
information.
Further Information
The Corps and EPA will work closely with the States, forestry community, and
public to answer any questions that may arise with regard to this guidance. For further
information on this memorandum, please contact Mr. John Goodin of EPA’s. Wetlands
Division at (202) 260-9910 or Mr. Sam Collinson of the Corps of Engineer’s Regulatory
Branch at (202) 761-0199. The public may also contact:

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EPA
Region IV Tom Welburn (404)347-3871 EXT. 6507
Region VI Bill Cox (214)665-6680
Region III Barbara D’Angelo (215)597-9301
CORPS
Corps Wilmington District Wayne Wright (910)251-4630
Corps Charleston District Bob Riggs (803)727-4330
Corps Savannah District Nick Ogden (912)652-5768
Corps Jacksonville District John Hall (904)232-1666
Corps Norfolk District Woody Poore (804)441-7068
Corps Mobile District Ron Krizman (334)690-2658
Corps Little Rock District Lou Cockman (501)324-5296
Corps Memphis District Larry Watson (901)544-3471
Corps Nashville District Randy Castleman (615)736-5181
Corps New Orleans District Ron Ventola (504)862-2255
Corps Vicksburg District Beth Guynes (601)631-5276
IS’
Robert H. Wayland, III
Director, Office of Wetlands, Oceans,
and Watersheds
U.S. Environmental Protection Agency
IS’
Michael L. Davis
Chief Regulatory Branch
U.S. Army Corps of Engineers

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En virorimental Protection Agency (E.P.A.)
Office of General Counsel
Water Division
*1 ISSUES CONCERNING THE INTERPRETATION OF 404(F) OF THE
CLEAN WATER ACT
February 8, 1985
TO: Josephine S. Cooper
Assistant Administrator for External Affairs (A-100EA)
FROM: Gerald H. Yamada
Acting General Counsel (LE-130)
You have asked for guidance clarifying the application of section 404(f) of the Clean
Water Act (CWA) and its implementing regulations to the expansion or intensification of farming
operations. [ FN 1] This memorandum provides general guidance on the interpretation of the
applicable law and regulations as they relate to that topic. It is intended to assist EPA and Corps
of Engineers personnel in understanding and consistently applying section 404(f) and in explaining
that section to the public.
1. General
At the outset, it should be stressed that section 404 jurisdiction extends only to point
source discharges of dredged or fill material into waters of the United States. Section 404(a).
Unless an activity involves such discharges into such waters, it is not subject to section 404, and
there is no need to consider the applicability of section 404(f). Thus, activities confined to those
portions of a property which have been determined by EPA or the Corps of Engineers, as
appropriate, not to be waters of the United States do not need a section 404 permIt, regardless of
what the activities are. If an activity does involve a discharge of dredged or fill material into
waters subject to the Act, then it is relevant to consider whether the activity is exempt under
section 404(f). Section 404(f)(1) states that:
Except as provided in paragraph (2) of this subsection, the discharge of
dredged or fill material [ from activities specified in (A) through (F)] is
not prohibited by or otherwise subject to regulation under this section or
Section 30 1(a) or 402 of this Act (except for effluent standards or
prohibitions under section 307).
Section 404(f)(2), commonly referred to as the ‘recapture provision,” provides:
Any discharge of dredged or fill material into the navigable waters
incidental to any activity having as its purpose bringing an area of the
navigable waters, into a use to which it was not previously subject, where

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the flow or circulation of navigable waters may be impaired or the reach of
such waters be reduced, shall be required to have a permit under this
section
Thus, in order to conclude that a given discharge activity is exempt from regulation, one
must determine not only that it falls within section 404(f)(1), but also that it is not recaptured
under section 404(0(2). Discharges which are not exempt under sectIon 404 must be evaluated
through the appropriate permit process. If the permit issuer determines the discharges comply
with the section 404(b)(1) guidelines and other applicable criteria, they may be authonzed by a
suitably conditioned permit. Section 404(1) was enacted in 1977 as part of the mid-course
corrections to the CWA and in response to public reaction to the Corps’ expansion of its section
404 jurisdiction following the decision in NRDC v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
In very general terms, the legislative history indicates that section 404(f) reflects a trade-off
between activities and geographic jurisdiction; that is, a decision by Congress to explicitly exempt
certain activities which it never intended to regulate or which are sufficiently minor so as not to
require scrutiny through the permit process, while maintaining the program’s broad geographic
jurisdiction because of the latter’s importance to the purposes of the Act. However, as noted in
the preamble to EPA’s first proposed regulations implementing section 404(f), 44 Fed. Reg.
34263 (June 14, 1979), the interpretation of the section is exceptionally complex, because of the
need to work with the language of the statute and the extensive but sometimes ambiguous or
inconsistent legislative history.
* 2
EPA first proposed regulations interpreting section 404(1) on June 14, 1979. After
consideration of the numerous comments and following close consultation with the Corps, EPA
published final section 404(f) regulations on May 19, 1980, as part of its “Consolidated Permit
Regulations.” 40 CFR § 123.91. Both the proposed and final regulation were accompanied by
extensive preambles On July 22, 1982, the Corps of Engineers incorporated EPA’s 404(f)
regulations into its own permit regulations (at 33 CFR 323.4) verbatim, except for (with EPA’s
concurrence) small changes to the definition of “minor drainage” and to the description of
facilities associated with liTigation ditches. [ FN2] EPA recodified its 1980 section 404(f)
regulations as 40 CFR 233.35 on April 1, 1983. References in this memorandum will be to 40
CFR 233.35.
On its face, section 404(f) does not provide a total, automatic exemption for all activities
related to agriculture. Rather, section 404(f)(1) exempts only those agricultural activities listed in
paragraphs (A) through (F), namely certain “normal” farming practices (404(f)(1)(A)), certain
ditching activities (404(f)(1)(C)), farm roads meeting specified cntena (404(f)(1)(E)), and other
discharges covered by best management practices developed through an approved section
208(b)(4) program (404(f)(I)(F)). [ FN3] In addition, even discharges which are associated with
the activities listed in section 404(f)(1) are not eligible for the exemption if they involve toxic
materials [ FN4] or if they are recaptured by section 404(f)(2). The legislative history leaves little
doubt that Congress intended to limit the environmental effect of the exemptions by defining them
narrowly and by including section 404(f)(2). [ FN5] As Senator Muskie put it, “New subsection
404(1) provides that Federal permits will not be required for those narrowly defined activities that

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cause little or no adverse effects either individually or cumulatively.” 3 Leg. Hist 474 (emphasis
added). See also statements by Rep. Harsha, id. at 420. and Senator Wallop, id. at 530. The
numerous statements concerning what section 404 did not exempt are also telling For example.
Senator Muskie explained, “ [ T]he exemptions do not apply to discharges that convert extensive
areas of water to dry land or impede circulation or reduce the reach or size of the water body ‘ 3
Leg. Hist. 474; see also statement of Senator Baker, id. at 523. As Senator Stafford stated,
“ [ P]ermits will continue to be required for those farm, forestry, and mining activities that involve
the discharge of dredged or fill material chat connect [ sic - presumably intended to be “convert”]
water to dry land including, for example, those occasional farm or forestry activities that involve
dikes, levees or other fills in wetland or other waters.” 3 Leg. Hist. 485. See also, Senate Report,
4 Leg. Hist. 710 (permit review necessary for discharges to convert a hardwood swamp to
another use through dikes or drainage channels). [ FN6]
*3
Thus, in determining whether discharges associated with expansion or intensification of
fanning in waters of the United States are exempt, the issue is whether the discharge activities in
question are among those specifically listed in sections 404(f)(1)(A) through (F) and, if so,
whether section 404(f)(2) recaptures them. The next section of this memorandum discusses
pertinent points relating to the specific provisions of 404(fl(1), as interpreted by existing
regulations.
II. Section 404(f)(1)(A) - (F)
Section 404(f)(1)(A) lists discharges of dredged or fill material from “normal farming,
silviculture, and ranching activities, such as plowing, seeding, cultivating, minor drainage,
harvesting for the production of food, fiber and forest products, or upland soil and water
conservation practices.’ The implementing regulation quotes this language, and then explains that
section (f)(1)(A) is limited to activities which are part of an “established (i.e., ongoing) farming,
silviculture, or ranching operation,” gives examples of what is and is not “established,” and defines
the listed activities (see 40 CFR 233.35(a)(1)(i) and (ii)). This “established” reqwrement is
intended to reconcile the sentiments in the legislative history that although Section 404 should not
unnecessarily restrict a farmer in continuing to farm his land [ FN7], discharge activities which
could destroy wetlands should be regulated. [ FN8]
Several points should be kept in mind in deciding whether this “established” requirement is
met in a given case. First, to fall within 404(IX1)(A), the specific cultivating, seeding, plowing,
etc., activity need not itself have been ongoing as long as it is introduced as part of an ongoing
farming operation. For example, a farmer may decide to initiate “minor drainage” for the
emergency removal of blockages in an area already being farmed (see 40 CFR
233.35(a)(1)(iii)(C)(1)(iv), definition of “minor drainage”). Similarly, if crops have been grown
and harvested on a regular basis, the mere addition of a cultivating step to that farming operation
is not inconsistent with the operation being an “established” one for purposes of section
404(f)(1)(A). (Of course, the mere fact that there is an “established’ operation under section
404(fXl)(A) does not foreclose the possibility of recapture under section 404(0(2). See pp. 9-11
infra.)

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Second. the thrust of the last three sentences in section 233.35(a)(1)(ii) is to ensure that
the “established” requirement is used neither too restrictively (e g., to block use of a conventional
rotational cycle) nor too loosely (e.g., to allow the fact that an area has been timbered or farmed
at any point in history to automatically make it an ongoing farm or forest operation). To guard
against the latter, the regulation sets out two alternative tests to be used to determine whether
there is no longer an ongoing operation on a previously farmed area, i.e., whether a new,
non-farming use has taken place in the interim or whether the area is no longer in a condition such
that farming could resume without hydrologic modification. See United States v. Akers,
supra, for an example of application of this “established” requirement.
*4
The regulations (and preamble) define in some detail the specific “normal” activities listed
in section 404(f)(l)(A). Three points may be useful in the present context. First, as explained in
the 1979 preamble, the words “such as” have been interpreted as restricting the section “to the
activities named in the statute and other activities of essentially the same character as named”,
and “preclude the extension of the exemption . . . to activities that are unlike those named.” 44
Fed. Reg. 34264. Second, plowing is specifically defined in the regulations not to include the
redistribution of surface materials by grading in a manner which converts wetland areas to uplands
(see 40 CFR 233.35(a)(1)(iii)(D)).
The third point relates to the definition of “minor drainage.” Because of the numerous
statements in the legislative history that draining wetlands was not exempt under section 404(f),
[ FN9] and because section 404(f)(l)(C) makes it clear that discharges from the construction of
drainage ditches are not exempt, the “minor drainage” definition was carefully crafted to describe
very specific drainage activities which were identified and judged through rulemaking to be
necessary components of normal operations but to have minimal adverse effects. Thus,
subparagraphs (1)(ii) and (1)(iii) of the minor drainage definition are limited to discharges
associated with continuation of established wetland crop production (see 40 CFR
233.35(a)(I)(iii)(C)). Although those activities may involve plugging ditches and rebuilding small
rice levees, for example, paragraph (2) of the minor drainage definition stresses that the term
“does not include the construction of any canal, ditch, dike or other waterway or structure which
drains or otherwise significantly modifies a ... wetland or aquatic area constituting waters of the
United States.”
Section 404(f)(1)(B) - This subsection covers discharges resulting from maintenance,
including emergency reconstruction of damaged parts, of currently serviceable structures. The
regulation, after repeating the statutory language, states that “maintenance” does not include
changes in character, scope, or size of the original fill design, and requires that emergency work
take place a reasonable time after damage occurs (see 40 CFR 233.35(a)(2)). Thus, discharges to
increase the height or length of a dike are not covered by this section.
Section 404(f)(1)(C) - The statutory language applies only to the “construction or
maintenance of farm or stock ponds or irngation ditches, or the maintenance of drainage ditches.”
A brief history of the regulations interpreting this provision is in order, as they have been modified
several times insofar as they relate to irrigation ditches. EPA’s initial regulations (May 19, 1980)

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supplemented the statutory language by specifying that connections and certain other work related
to irrigation ditches were included in the exemption. [ FNIO] In July 1982, EPA authorized the
Army to replace that supplementary language with a simplified wording which EPA felt was
consistent with its interpretation. [ FN1II Thus, section 323.4(a)(3) of the Corps’ July 22, 1982
regulations included the following statement:
*5
• . . Discharges associated with irrigation facilities in the waters
of the U.S. are included within the exemption unless the discharges have the
effect of bringing these waters into a use to which they were not previously.
subject and the flow or circulation may be impaired or reach reduced of such
waters.
This latter language was challenged in NWF v. Marsh as improperly expanding the statutory
exemption. and new, clearer language was developed under the settlement agreement. Following
rulemaking, EPA and the Corps approved the following substitute language, which was published
as a final regulation effective October 5, 1984:
Discharges associated with siphons, pumps, headgates, wingwalls,
wiers, diversion structures and other such facilities as are appurtenant and
functionally related to irrigation ditches are included in this exemption.
The preamble to the 1984 regulation explains that the new wording is intended to clarify the type
of irrigation Structures involved. “irrigation” discharges which occurred while the July 22, 1982
regulations were in effect probably should, as an equitable matter, be evaluated under the 1982
language, even though EPA’s 1980 language remained on the books; however, the 1982 language
must of course be interpreted in light of the statutory language, EPA’s basis for approving the
change, and the explanation accompanying the 1984 clarification. Thus, even under the Corps’
1982 regulation, exempted imgation facilities must at a minimum be appurtenant to Irngatlon
ditches.
Another issue which has been raised is the applicability of section 404(f)(1)(C) to
construction of ditches which can serve as either irrigation or drainage ditches. The regulations
and preamble do not explicitly address this issue. However, since the statute clearly does not
exempt the construction of drainage ditches, [ FNI2] and the legislative history indicates that
limitation was deliberate and important, it follows that dual function ditches [ FNI3] should be
considered drainage ditches, i.e., their construction is not exempt.
One final point should be made about section 404(f)(1)(C) Because neither that section
nor the implementing regulations have an “ongoing” requirement, it is immaterial for purposes of
section 404(fXl)(C) whether an Irrigation ditch waters an area which was previously irrigated or
indeed whether the area was previously farmed at all (although such facts could be highly relevant
under section 404(f)(2)).
Section 404(O(1)(D) - This section relates only to construction of temporary
sedimentation basins on construction sites, not to the actual building or other structure being

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constructed
Section 404(f)(1)(E) - This section coveis farm, forest, and temporary mining roads,
provided they are constructed and maintained in accordance with best management practices to
assure that flow and circulation patterns and chemical and biological characteristics of the
navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that
any adverse effect on the environment will be otherwise minimized.
*6
EPA’s regulations translate these statutory criteria into a number of best management practices
(BMP’s) (see 40 CFR 233.3 5(a)(5)). If a farm road is built in accordance with those BMP’s (and
in the case of a state 404 program, with any additional BMFs specified by the state), it is deemed
to meet the criteria of section 404(f)(1)(E).
Section 404(f)(1)(F) - As discussed above, this provision is designed to cover activities
controlled under an approved section 208(b)(4) program, and therefore is inoperative where a
state does not have an approved 208(b)(4) program. To date, no state has such a program.
ifi. Section 404(fX2)
As noted above, if a discharge activity falls within the scope of the specific 404(f)(1)(A) -
(F) subsections just descnbed but does not pass muster under section 404(0(2), it is not exempt
from regulation. The applicable regulations, 40 CFR 233.35(c) provide:
Any discharge of dredged or fill material into waters of the United States
incidental to any of the activities identified in [ (f)(1)(A)-(F)] must have a
permit if it is part of an activity whose purpose is to convert an area of
the waters of the United States into a use to which it was not previously
subject, where the flow or circulation of waters of the United States may be
impaired or the reach of such waters reduced. Where the proposed discharge
will result in significant discernible alterations to flow or circulation,
the presumption is that flow or circulation may be impaired by such
alteration.
(Note: For example a permit will be required for the conversion of a
cypress swamp to some other use or the conversion of a wetland from
silvicultural to agricultural use when there is a discharge of dredged or
fill materials into waters of the United States in conjunction with
construction of dikes, drainage ditch or other works or structures used to
effect such conversion. A discharge which elevates the bottom of waters of
the United States without converting it to dryland does not thereby reduce
the reach of, but may alter the flow or circulation of, waters of the United
States.]
Section 404(0(2) has two requirements: the “new use” requirement, and the “reduction in
reach/impairment of flow or circulation” requirement. Although both requirements must be met,
it is the interpretation of the first that raises the most questions. The legislative history discussed

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earlier leaves no doubt that the destruction of the wetland chaiacter of an area (i e., its conversion
to uplands) is a change in use of the waters of the United States, and by definition also a reduction
in their reach. within the meaning of section 404(0(2). The fact that some farming operations
may have previously been conducted in the wetland without altering its wetland status, or that
some new operation could theoretically be conducted without a discharge, does not mean that
discharges associated with an operation which does convert the wetland are exempt. Conversely,
if there is already an established farming operation in a wetland, any discharges resulting from
farming activities listed in the regulation which do not convert the wetland to upland are exempt,
whether or not there is an intensification of farming, change in crops, etc. Similarly, discharges
from the construction of imgation ditches [ FNI4} are exempt, even if they affect a wetland, as
long as they do not convert the wetland to upland, bring it into initial farming use, or otherwise
bring a water of the United States into a new use, and reduce or impair its reach, flow, or
circulation.
*7
To give some concrete examp’es, if there is an established hay harvesting operation in a
wetland, discharges associated with the activities listed in 404(f)(I)(A) would not need a permit,
even if new agricultural crops were introduced, as long as the wetland was not destroyed. If
annual “upland” crops [ FNI5J could be grown in the wetland (dunng the dry season, presumably)
without such an effect, their introduction would not per se eliminate the exemption. Conversely,
if the listed farming activities are employed to grow a perennial upland crop which cannot survive
in a wetland, it follows that establishing that crop so that it survives from year to year will require
effectively eliminating the wetland, the associated discharges would not be exempt (since
elimination of the wetland would be both a “new use” and a reduction in reach).
Finally, it should be noted that in order to trigger the recapture provisions of 404(0(2), the
discharges themselves do not need to be the sole cause of the desti-uction of the wetland or other
change in use or sole cause of the reduction or impairment of reach, flow, or circulation of waters
of the United States. Rather, the discharges need only be “incidental to” or “part of” an activity
which is intended to or will forseeably bring about that result. Thus, in applying section 404(fl(2),
one must consider discharges in context, rather than in isolation.
If additional questions arise concerning the interpretation of section 404(f) which are not
addressed by this memorandum, please contact me or Cathy Winer of my staff.
FN1. EPA is charged with the ultimate administrative responsibility for
interpreting section 404(f). See Op. Att’y Gen., Sept. 5, 1979.
FN2. The amended irrigation ditch provision was challenged in NWF v. Marsh,
D.D.C., Civ. No. 82-3632. As part of the settlement of that case, EPA and the
Corps agreed to the proposal of new wording. Final regulations reflecting the
settlement were published on October 5, 1984. See pp. 7-8, infra.
FN3. As noted in the preamble to the 1979 proposed regulations, if 404(f)(1)(A)
covered all kinds of farming activities, there would be no need to provide for
ditches, ponds, and roads in 404(f)(1)(C) and (E). 44 Fed Reg. 34264.

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FN4 Most farming operations will probably not involve discharges containing
toxic pollutants. However, should the soils to be discharged contain
substances such as pesticides listed as toxic pollutants pursuant to section
307, a permit would be required. See 40 CFR 23 3.35(b).
FN5. This legislative history was relied on by the principal reported court
decisions construing section 404(f), Avoyelles Sportsman’s League v. Alexander,
473 F. Supp. 525, 535-536 (W.D. La. 1979) and Avoyelles Sportsman’s League v.
Marsh, 715 F.2d 897 (5th Cir. 1983). The district court held that the
exemptions should be narrowly construed and that under section 404(f)(1)(A)
only activities that are part of an ongoing agricultural or ongoing
silvicultural operation were intended to be exempted. (This holding preceded
the regulations, and hence simply interpreted the statute, without weight being
given to EPA’s regulations interpreting the statute.) On appeal, the Fifth
Circuit affirmed the district court’s result, but found it unnecessary to
decide the challenge to the district court’s limitation of 404(f)(I)(A) to
‘established” operations since application of section 404(f)(2) would lead to
the same result. The legislative history cited in this memorandum has also been
relied on in two recent unreported decisions, United States v. Huebner, No. 83-3140
(7th Cir. January 11, 1985); United States v. Akers, Civ. S-84-1276 RAR
(E.D. Cal. January 15, 1985).
FN6. There has been a contention that the references in the legislative history
implying that agncultural activities as a class are best regulated by the
states (i.e. not by the Corps) supports a broad exemption. However, such
references are either to the “Bentsen” amendment, which was rejected, or to
activities to be addressed under section 208 plans. When it authorized section
208(b)(4) programs as part of the 1977 amendments, Congress assumed that states
would use such programs to control “quasi-point source” silvicultural or
agricultural activities in order to obviate the need for a Federal permit.
See, e.g. statement by Senator Stafford, 4 Leg. Hist. 911-912. However, to
date no state has an approved 208(b)(4) plan which would qualify for exemption
any agricultural activities not otherwise enumerated in section 404(f)(1)(A)-
(B).
FN7 See, e.g., statement of Rep. Stump, 3 Leg. Hist. 418.
FN8. See, p. 4, supra. An assumption in both the regulation and the
legislative history is that ongoing farming operations normally are not carried
on in waters of the United States (unless perhaps specializing in a wetland
crop like nce or cranbernes), and hence that ordinarily there is little basis
or purpose to apply section 404 to ongoing operations. See, e.g. statement of
Senator Muskie, 4 Leg. Hist. 869

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FN9 See. e g . Senate Report, 4 Leg Hist. 709, as well as the references
cited supra, at p 4
FNIO . . A simple connection of an irrigation return or supply ditch to
waters of the United States and related bank stabilization measures are
included within this exemption. Where a trap, weir, grain, wall. Jetty or
other structure within waters of the United States which will result in
significant discemable alterations to flow or circulation is constructed as
part of the connection, such construction requires a 404 permit.
The rationale for this expansion was that all imgation ditches need
connections in order to function. Unless the connection were exempted, too,
the provision would have no meaning.
FN I.1 See, letter from Anne Gorsuch to Senator Hart, dated January 5, 1982.
FN12. It does exempt maintenance of drainage ditches. Maintenance includes
removal of accumulated debris and silt.
FN I3. Of course, a ditch is not considered “dual function” in this sense if the
water it cames away is not water which contributes to the maintenance of
waters of the United States (e.g., wetlands) but rather is simply irngatlon
return flow.
FNI4. Per discussion above, this means ditches strictly for irngation, not
dual function ditches.
FN15 Such labels should be used cautiously in this context. The controlling
factor is whether establishing the crop is compatible with the area’s remaining
a wetland. not what the plant label is.

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THE FACTS ABOUT
SJLVICULTtJRAL ACTIVITIES IN
WETLANDS
Region IV
345 Couriland St., NE
Atlanta, GA 30365
(404) 347-2126

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REGION IV GUIDANCE ON SILVICULTURE EXEMPTION
OF SECTION 404(f) OF THE CLEAN WATER ACT
1. What activities are regulated under Section 404 of the Clean
Water Act?
A Section 404 permit is required for the point source
discharge of dredged or fill material into waters of the United
States. Certain discharges are permitted under nationwide
permits (33 C.F.R. Part 330). Other permits are issued ona
regional basis. If a discharge is not exempt or permitted under
a nationwide or regional permit, an individual Section 404
permit will be required.
2. What discharges are exempted or otherwise not subject to
regulation under Section 404?
The discharge of dredged or fill material is exempt if the
activity meets the following conditions:
a. It is a normal farming, silviculture or ranching
activity such as seeding, cultivating, minor drainage,
cr harvesting; and
b. It is part of an established (i.e., ongoing) farming,
silviculture or ranchir.g operation; and
c. It does not contain any toxic pollutant listed under
Section 307 of the Clean Water Act; and
d. It is not part of an activity whose purpose is to
convert an area of waters of the United States into a
use t3 which it was not previously subject, where the
fl:w or circulation of waters of the United States may
be i.i paired or th reach of waters reduced.
3. What is an established silviculture operation?
Ir. order for a silviculture operation to be an exempt
activity, it must be part of art “established’ or “ongoing’
operation. Ongoing activities are operations and maintenar.ce
activities which are part of a conventional rotation system and
are introduced as part of an established operation on the
property. EPA’S General Counsel Opinion of February 8, 1985,
states that an activity need not itself have been ongoing as
long as it is introduced as part of an ongoing ... operation.”
In det•rmining whether an operation is established, EPA w: .
exa’njne the historical use of the property. The existence of a
written management plan, evidence of harvesting with either
natural or artificial regeneration, and evidence of fire, insect
or disease control to protect timber would be among the factors
considered by the agency to be indicative of an established
cperat ion.

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DRAFT
4. When does n operation cease to be established?
An operation ceases to be established when:
a. the operation results in the conversion of the area to
another use (from wetland to upland) where the flow or
circulation of waters is impaired or the reach of the
waters is reduced; or
b. .the area has lain idle for so long that hydrologic
modifications are necessary to resume operations. The
term “hydrologic modifications” does not refer to water
management techniques such as minor drainage, plowing,
and seeding, which are exempt activities.
5. How does a change in ownership affect established
activities?
The fact of ownership is irrelevant in determining whether a
silviculture operation is part of an established activity. If,
however, a new owner materially changes the operation such that
the activity results in a conversion of waters to a use to which
it was not previously subject, where the glow or circulation of
waters may be impaired or the reach of waters reduced, the
activity is no longer exempt.
6. Is a species composition change associated with the
intensification of management part of an established
silviculture operation?
Yes, a species composition change resulting in
intensification of management can be part of art established
silviculture activity.
EPA recognizes that the intensification of forest management
practices can occur as part of a conventional rotation and, in
such instances, wouldbe considered part of an established
operation. For example, the biologic conversion of a diverse
forested wetland to a monotyoic stand is a normal silviculturai.
activity if the property is in silvicultural usage before and
after the harvesting and planting. Thus, no change in use will
have occurrd and the operation is exempt.
7. Is a species composition change always exempt even if the
change is part of an established silviculture activity?
No, a species composition change is not exempt if the
activities used to clear, prepare or plant the site would result
in a change in use that is accompanied by an impairment of the
flow or circulation or the reduction of the reach of waters. A.-1
example of such a new use situaticn would be where the change in
species composition would cause a conversion of wetlands to
uplands.
DRAFT

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DRAFT
8. What is the-test used to determine whether flow or
circulation of waters has been impaired or reach of waters has
been reduced?
The test involves a determination of whether the activies
result in a conversion of wetlands to uplands. If filling
activities, including normal silviculture, on any wetland site,
including sites which have ongoing activities, would result in a
change in hydrology, soil characteristics, and/or plant
community s ructure such that the area can no longer be
classified as a wetland, the filling activities are not exempt.
9. Must a discharge which changes use also result in the
impairment of flow or circulation of waters reduce the reach
of waters in order to be regulated?
• No, a discharge which results in a conversion of an area of
waters of the United States into a use to which it was not
previously subject must be accompanied by an impairment of flow
or circulation g reduce the reach of such waters to be subject
to Section 404 permit process. For instance, a discharge which
changes the bottom elevation of waters of the United States,
without converting it to dry land, does not reduce the reach of
waters but may alter flow or circulation and therefore may be
subject to permitting reuirements.
It should be noted that EPA has established a presumption
that flow or circulation may be impaired by significant
discernible alteration. Any activity which causes a
non-significant impairment of flow or circulation or reducticr.
of reach, that is consequent to an action which does not res it
in the conversion of an area of waters of the United States to a
new use, is exempt from regulatior..
10. What is “bedding”?
Bedding, part of site preparation in silvicultural
operations, is the construction of mounds (“beds”) from
surrounding àoil resulting in adjacent and alternating mounds
and furrows. Seedling beds create temporary elevated soil
conditions allowing seedlings to escape saturated soil
conditions and have a greater opportunity to survive and grow.
Bedding further includes the sowing of seed and placement of
seedlings to produce farm, ranch, or forest crops. (40 C.F.R.
§232.3(c) (5))
11. Is bedding a normal silvicu1t ra1 activity which is exempt
from permitting requirements?
DRAFT

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DR; T
Bedding is.a normal silvicultural activity that is exempt
from Section 404 permitting requirements if:
a. it is performed as part of an established silviculture
operation; and
b. the seedling bedding does not result in the conversion
of the wetland to an upland as a consequence of
impairing the flow or circulation or reducing the reach
of waters of the Unit d States.
Norma1l , bedding would be expected to result in only
insignificant impairment of surface flow or circulation.
However, it bedding were to significantly alter flow or
circulation and consequently result in conversion of a wetland
to upland, the exemption would no longer apply.
12. Would any change in the elevation of a wetland site result
in the conversion of the wetland to an upland and cause the
operation to require permitting?
Many normal silvicultural activities result in the displace-
ment of soil causing changes in the elevation of wetland sites.
Determinations concerning whether such elevational changes
result in the conversion of a wetland into an upland site must -
be made on a fact specific basis. Where significant change in
elevation causes the alteration of soil, vegetation or hydrology
and permanent conversion of wetlands to uplands, the activity is
not exempt. Conversely, where the changes are temporary or
minor and the site can still be classified as a wetland, then no
conversion has occurred.
13. Is minor drainage an exempt activity?
Minor drainage which is part of an established operation is
a statutorily exempt activity. EPA considers drainage to be
minor when it is temporary in nature and is not associated with
the iitunediate or gradual conversion of the wetland to a non-
wetland. Minor drainage does not include construction of any
structure or waterway whose purpose or result is to convert Cr
change the u.e of a waters of the United States.
14. Is the construction of a farm or forest road an exempt
activity?
Road construction is exempt only if construction and
maintenance is in accordance with best management practices
(B s) which assure that flow, circulation, chemical and
biological characteristics of waters of the United States are
not impaired, that the reach of waters if not reduced and that
any adverse effect on the aquatic environment will otherwi.se te
minimized.
DRAFT

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DRNT
EPA r.gula b’ions, 40 C.F.R. §232.3(c)(6)(i—xv), explain the
BKPs which must be applied to ensure that certain road
construction would be exempt.
15. What information can a property owner provide to EPA to
assist the Agency in determining whether a normal forestry
operation qualifies for the exemption?
The property owner could provide information evidencing that
the activity on—site:
a. is established or introduced as part of an ongoing
operation; and
b. will not result in the conversion of an existing
wetland to an upland by bringing a wetland area into a
use which it did not previously serve, where the flow
or circulation of waters of the United States is
impaired or the reach is reduced.
DP • T

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WAIS DocumenL Retrieval http llfrwebgate access gpo govlcgi-binl .O&PART=232&SECTION= I &YEAR=2002&TYPE=TEX1
[ Code of Federal Regulations]
[ Title 40, Volume 21]
(Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[ CITE: 40CFR232.1]
[ Page 277]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION
AGENCY (CONTINUED)
PART 232--404 PROGRAM DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 404 PERMITS--Table
Sec. 232.1 Purpose and scope of this part.
Part 232 contains definitions applicable to the section 404 program
for discharges of dredged or fill material. These definitions apply to
both the federally operated program and State administered programs
after program approval. This part also describes those activities which
are exempted from regulation. Regulations prescribing the substantive
environmental criteria for issuance of section 404 permits appear at 40
CFR part 230. Regulations establishing procedures to be followed by the
EPA in denying or restricting a disposal site appear at 40 CFR part 231.
Regulations containing the procedures and policies used by the Corps in
administering the 404 program appear at 33 CFR parts 320-330.
Regulations specifying the procedures EPA will follow, and the criteria
EPA will apply in approving, monitoring, and withdrawing approval of
section 404 State programs appear at 40 CFR part 233.
I of I l/3I 2O03 2 57 PM

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WAIS Document Retneval bLip ifrwebgate access gpo govicgi-bin/ 0&PART=232&SECTION=3&YEAR=2002&TypETEX’r
[ Code of Federal Regulations]
(Title 40, Voluxrte 21]
(Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[ CITE: 40CFR232.3]
[ Page 281-284]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I- -ENVIRONMENTAL PROTECTION
AGENCY (CONTINUED)
PART 232--404 PROGRAM DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 404 PERMITS--Table
Sec. 232.3 Activities not requiring permits.
Except as specified in paragraphs (a) and (b) of this section, any
discharge of dredged or fill material that may result from any of the
activities described in paragraph (c) of this section is not prohibited
by or otherwise subject to regulation under this part.
(a) If any discharge of dredged or fill material resulting from the
activities listed in paragraph (c) of this section contains any toxic
pollutant listed under section 307 of the Act, such discharge shall be
subject to any applicable toxic effluent standard or prohibition, and
shall require a section 404 permit.
(b) Any discharge of dredged or fill material into waters of the
United States incidental to any of the activities identified in
paragraph (c) of this section must have a permit if it is part of an
activity whose purpose is to convert an area of the waters of the United
States into a use to which it was not previously subject, where the flow
or circulation of waters of the United States may be impaired or the
reach of such waters reduced. Where the proposed discharge will result
iii significant discernable alterations to flow or circulation, the
presumption is that flow or circulation may be impaired by such
alteration.
Note: For example, a permit will be required for the conversion of a
cypress swamp to some other use or the conversion of a wetland from
silvicultural to agricultural use when there is a discharge of dredged
or fill material into waters of the United States in conjunction with
constuction of dikes, drainage ditches or other works or structures used
to effect such conversion. A conversion of section 404 wetland to a non-
wetland is a change in use of an area of waters of the U.S. A discharge
which elevates the bottom of waters of the United States without
converting it to dry land does not thereby reduce the reach of, but may
alter the flow or circulation of, waters of the United States.
(c) The following activities are exempt from section 404 permit
requirements, except as specified in paragraphs (a) and (b) of this
section:
(1) (i) Normal farming, silviculture and ranching activities such as
plowing, seeding, cultivating, minor drainage, and harvesting for the
production of food, fiber, and forest products, or upland soil and water
conservation practices, as defined in paragraph (d) of this section.
(ii) (A) To fall under this exemption, the activities specified in
paragraph (c)(l) of this section must be part of an established (i.e.,
ongong) farming, silviculture, or ranching operation, and must be in
accordance with definitions in paragraph (d) of this section. Activities
on areas lying fallow as part of a conventional rotational cycle are
part of an established operation.
(B) Activities which bring an area into farming, silviculture or
ranching use are not part of an established operation. An operation
ceases to be established when the area in which it was conducted has
been converted to another use or has lain idle so long that
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[ [ Page 282))
modifications to the hydrological regime are necessary to resume
operation. If an activity takes place outside the waters of the United
States, or if it does not involve a discharge, it does not need a
section 404 permit whether or not it was part of an established farming,
silviculture or ranching operation.
(2) Maintenance, including emergency reconstruction of recently
damaged parts, of currently serviceable structures such as dikes, dams,
levees, groins, riprap. breakwaters, causeways, bridge abutments or
approaches, and transportation structures. Maintenance does not include
any modification that changes the character, scope, or size of the
original fill design. Emergency reconstruction must occur within a
reasonable period of time after damage occurs in order to qualify for
this exemption.
(3) Construction or maintenance of farm or stock ponds or irrigation
ditches or the maintenance (but not construction) of drainage ditches.
Discharge associated with siphons, pumps, headgates, wingwalls, wiers,
diversion structures, and such other facilities as are appurtenant and
functionally related to irrigation ditches are included in this
exemption.
(4) Construction of temporary sedimentation basins on a construction
site which does not include placement of fill material into waters of
the United States. The term ‘‘construction site’’ refers to any site
involving the erection of buildings, roads, and other discrete
structures and the installation of support facilities necessary for
construction and utilization of such structures. The term also includes
any other land areas which involve land-disturbing excavation
activities, including quarrying or other mining activities, where an
increase in the runoff of sediment is controlled through the use of
temporary sedimentation basins.
(5) Any activity with respect to which a State has an approved
program under section 208(b) (4) of the Act which meets the requirements
of section 208(b) (4) (B) and (C).
(6) Construction or maintenance of farm roads, forest roads, or
temporary roads for moving mining equipment, where such roads are
constructed and maintained in accordance with best management practices
(BMP5) to assure that flow and circulation patterns and chemical and
biological characteristics of waters of the United States are not
impaired, that the reach of the waters of the United States is not
reduced, and that any adverse effect on the aquatic environment will be
otherwise minimized. The BMPs which must be applied to satisfy this
provision include the following baseline provisions:
(i) Permanent roads (for farming or forestry activities), temporary
access roads (for mining, forestry, or farm purposes) and skid trails
(for logging) in waters of the United States shall be held to the
minimum feasible number, width, and total length consistent with the
purpose of specific farming, silvicultural or mining operations, and
local topographic and climatic conditions;
(ii) All roads, temporary or permanent, shall be located
sufficiently far from streams or other water bodies (except for portions
of such roads which must cross water bodies) to minimize discharges of
dredged or fill material into waters of the United States;
(iii) The road fill shall be bridged, culverted, or otherwise
designed to prevent the restriction of expected flood flows;
(iv) The fill shall be properly stabilized and maintained to prevent
erosion during and following construction;
(v) Discharges of dredged or fill material into waters of the United
States to construct a road fill shall be made in a manner that minimizes
the encroachment of trucks, tractors, bulldozers, or other heavy
equipment within the waters of the United States (including adjacent
wetlands) that lie outside the lateral boundaries of the fill itself;
(vi) In designing, constructing, and maintaining roads, vegetative
disturbance in the waters of the United States shall be kept to a
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mi nimuin;
(vii) The design, construction and maintenance of the road crossing
shall not disrupt the migration or other movement of those species of
aquatic life inhabiting the water body;
(viii) Borrow material shall be taken from upland sources whenever
feasible;
(ix) The discharge shall not take, or jeopardize the continued
existence of, a
[ (Page 283]]
threatened or endangered species as defined under the Endangered Species
Act, or adversely modify or destroy the critical habitat of such
species;
(x) Discharges into breeding and nesting areas for migratory
waterf owl, spawning areas, and wetlands shall be avoided if practical
alternatives exist;
(xi) The discharge shall not be located in the proximity of a public
water supply intake;
(xii) The discharge shall not occur in areas of concentrated
shellfish production;
(xiii) The discharge shall not occur in a component of the National
Wild and Scenic River System;
(xiv) The discharge of material shall consist of suitable material
free from toxic pollutants in toxic amounts; and
(xv) All temporary fills shall be removed in their entirety and the
area restored to its original elevation.
(d) For purpose of paragraph (c) (1) of this section, cultivating,
harvesting, minor drainage, plowing, and seeding are defined as follows:
(1) Cultivating means physical methods of soil treatment employed
within established farming, ranching and silviculture lands on farm,
ranch, or forest crops to aid and improve their growth, quality, or
yield.
(2) Harvesting means physical measures employed directly upon farm,
forest, or ranch crops within established agricultural and silvicultural
lands to bring about their removal from farm, forest, or ranch land, but
does not include the construction of farm, forest, or ranch roads.
(3) (i) Minor drainage means:
(A) The discharge of dredged or fill material incidental to
connecting upland drainage facilities to waters of the United States,
adequate to effect the removal of excess soil moisture from upland
croplands. Construction and maintenance of upland (dryland) facilities,
such as ditching and tiling, incidental to the planting, cultivating,
protecting, or harvesting of crops, involve no discharge of dredged or
fill material into waters of the United States, and as such never
require a section 404 permit;
(B) The discharge of dredged or fill material for the purpose of
installing ditching or other water control facilities incidental to
planting, cultivating, protecting, or harvesting of rice, cranberries or
other wetland crop species, where these activities and the discharge
occur in waters of the United States which are in established use for
such agricultural and silvicultural wetland crop production;
(C) The discharge of dredged or fill material for the purpose of
manipulating the water levels of, or regulating the flow or distribution
of water within, existing impoundments which have been constructed in
accordance with applicable requirements of the Act, and which are in
established use for the production or rice, cranberries, or other
wetland crop species.
Note: The provisions of paragraphs (d) (3) (i) (B) and (C) of this
section apply to areas that are in established use exclusively for
wetland crop production as well as areas in established use for
conventional wetland/non-wetland crop rotation (e.g., the rotations of
rice and soybeans) where such rotation results in the cyclical or
intermittent temporary dewatering of such areas.
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(D) The discharge of dredged or fill material incidental to the
emergency removal of sandbars, gravel bars, or other similar blockages
which are formed during flood flows or other events, where such
blockages close or constrict previously existing drainageways and, if
not promptly removed, would result in damage to or loss of existing
crops or would impair or prevent the plowing, seeding, harvesting or
cultivating of crops on land in established use for crop production.
Such removal does not include enlarging or extending the dimensions of,
or changing the bottom elevations of, the affected drainageway as it
existed prior to the formation of the blockage. Removal must be
accomplished within one year after such blockages are discovered in
order to be eligible for exemption.
(ii) Minor drainage in waters of the United States is limited to
drainage within areas that are part of an established farming or
silviculture operation. It does not include drainage associated with the
immediate or gradual conversion of a wetland to a non-wetland (e.g.,
wetland species to upland species not typically adequate to life in
[ [ Page 284]]
saturated soil conditions), or conversion from one wetland use to
another (for example, silviculture to farming).
In addition, minor drainage does not include the construction of any
canal, ditch, dike or other waterway or structure which drains or
otherwise significantly modifies a stream, lake, swamp, bog or any other
wetland or aquatic area constituting waters of the United States. Any
discharge of dredged or fill material into the waters of the United
States incidental to the construction of any such structure or waterway
requires a permit.
(4) Plowing means all forms of primary tillage, including moldboard,
chisel, or wide-blade plowing, thscing, harrowing, and similar physical
means used on farm, forest or ranch land for the breaking up, cutting,
turning over, or stirring of soil to prepare it for the planting of
crops. Plowing does not include the redistribution of soil, rock, sand,
or other surficial. materials in a manner which changes any area of the
waters of the United States to dryland. For example, the redistribution
of surface materials by blading, grading, or other means to fill in
wetland areas is not plowing. Rock crushing activities which result in
the loss of natural drainage characteristics, the reduction of water
storage and recharge capabilities, or the overburden of natural water
filtration capacities do not constitute plowing. Plowing, as described
above, will never involve a discharge of dredged or fill material.
(5) Seeding means the sowing of seed and placement of seedlings to
produce farm, ranch, or forest crops and includes the placement of soil
beds for seeds or seedlings on established farm and forest lands.
(e) Federal projects which qualify under the criteria contained in
section 404(r) of the Act are exempt from section 404 permit
requirements, but may be subject to other State or Federal requirements.
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[ Code of Federal Regulations)
[ Title 40, Volume 21]
[ Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[ CITE: 40CFR232.2)
[ Page 277—281]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION
AGENCY (CONTINUED)
PART 232--404 PROGRAM DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 404 PERMITS--Table
Sec. 232.2 Definitions.
Administrator means the Administrator of the Environmental
Protection Agency or an authorized representative.
Application means a form for applying for a permit to discharge
dredged or fill material into waters of the United States.
Approved program means a State program which has been approved by
the Regional Administrator under part 233 of this chapter or which is
deemed approved under section 404(h) (3), 33 U.S.C. 1344(h) (3).
Best management practices (BMPs) means schedules of activities,
prohibitions of practices, maintenance procedures, and other management
practices to prevent or reduce the pollution of waters of the United
States from discharges of dredged or fill material. BMPs include
methods, measures, practices, or design and performance standards which
facilitate compliance with the section 404(b) (1) Guidelines (40 CFR
[ [ Page 278)J
part 230), effluent limitations or prohibitions under section 307(a),
and applicable water quality standards.
Discharge of dredged material. (1) Except as provided below in
paragraph (3), the term discharge of dredged material means any addition
of dredged material into, including redeposit of dredged material other
than incidental failback within, the waters of the United States. The
term includes, but is not limited to, the following:
(i) The addition of dredged material to a specified discharge site
located in waters of the United States;
(ii) The runoff or overflow, associated with a dredging operation,
from a contained land or water disposal area; and
(iii) Any addition, including redeposit other than incidental
fallback, of dredged material, including excavated material, into waters
of the United States which is incidental to any activity, including
mechanized landclearing, ditching, channelization, or other excavation.
(2) (i) The Corps and EPA regard the use of mechanized earth-moving
equipment to conduct landclearing, ditching, channelization, in-stream
mining or other earth-moving activity in waters of the United States as
resulting in a discharge of dredged material unless project-specific
evidence shows that the activity results in only incidental fallback.
This paragraph (i) does not and is not intended to shift any burden in
any administrative or judicial proceeding under the CWA.
(ii) Incidental fallback is the redeposit of small volumes of
dredged material that is incidental to excavation activity in waters of
the United States when such material falls back to substantially the
same place as the initial removal. Examples of incidental fallback
include soil that is disturbed when dirt is shoveled and the back-spill
that comes off a bucket when such small volume of soil or dirt falls
into substantially the same place from which it was initially removed.
(3) The term discharge of dredged material does not include the
following:
(i) Discharges of pollutants into waters of the United States
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resulting from the onshore subsequent processing of dredged material
that is extracted for any commercial use (other than fill). These
discharges are subject to section 402 of the Clean Water Act even though
the extraction and deposit of such material may require a permit from
the Corps or applicable state.
(ii) Activities that involve only the cutting or removing of
vegetation above the ground (e.g., mowing, rotary cutting, and
chainsawing) where the activity neither substantially disturbs the root
system nor involves mechanized pushing, dragging, or other similar
activities that redeposit excavated soil material.
(iii) Incidental failback.
(4) Section 404 authorization is not required for the following:
(i) Any incidental addition, including redeposit, of dredged
material associated with any activity that does not have or would not
have the effect of destroying or degrading an area of waters of the U.S.
as defined in paragraphs (5) and (6) of this definition; however, this
exception does not apply to any person preparing to undertake mechanized
landclearing, ditching, channelization and other excavation activity in
a water of the United States, which would result in a redeposit of
dredged material, unless the person demonstrates to the satisfaction of
the Corps, or EPA as appropriate, prior to commencing the activity
involving the discharge, that the activity would not have the effect of
destroying or degrading any area of waters of the United States, as
defined in paragraphs (5) and (6) of this definition. The person
proposing to undertake mechanized landclearing, ditching, channelizat ion
or other excavation activity bears the burden of demonstrating that such
activity would not destroy or degrade any area of waters of the United
States.
(ii) Incidental movement of dredged material occurring during normal
dredging operations, defined as dredging for navigation in navigable
waters of the United States, as that term is defined in 33 CFR part 329,
with proper authorization from the Congress or the Corps pursuant to 33
CFR part 322; however, this exception is not applicable to dredging
activities in wetlands, as that term is defined at Sec. 232.2(r) of this
chapter.
[ (Page 279]]
(iii) Certain discharges, such as those associated with normal
farming, silviculture, and ranching activities, are not prohibited by or
otherwise subject to regulation under Section 404. See 40 CFR 232.3 for
discharges that do not require permits.
(5) For purposes of this section, an activity associated with a
discharge of dredged material destroys an area of waters of the United
States if it alters the area in such a way that it would no longer be a
water of the United States.
Note: Unauthorized discharges into waters of the United States do
not eliminate Clean Water Act jurisdiction, even where such unauthorized
discharges have the effect of destroying waters of the United States.
(6) For purposes of this section, an activity associated with a
discharge of dredged material degrades an area of waters of the United
States if it has more than a de minimis (i.e., inconsequential) effect
on the area by causing an identifiable individual or cumulative adverse
effect on any aquatic function.
Discharge of fill material. (1) The term discharge of fill material
means the addition of fill material into waters of the United States.
The term generally includes, without limitation, the following
activities: Placement of fill that is necessary for the construction of
any structure or infrastructure in a water of the United States; the
building of any structure, infrastructure, or impoundment requiring
rock, sand, dirt, or other material for its construction; site-
development fills for recreational, industrial, commercial, residential,
or other uses; causeways or road fills; dams and dikes; artificial
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islands; property protection and/or reclamation devices such as riprap,
groins, seawalls, breakwaters, and revetments; beach nourishment;
levees; fill for structures such as sewage treatment facilities, intake
and outfall pipes associated with power plants and subaqueous utility
lines; placement of fill material for construction or maintenance of any
liner, berm, or other infrastructure associated with solid waste
landfills; placement of overburden, slurry, or tailings or similar
mining-related materials; after the words ‘‘utility lines; and
artificial reefs.
(2) In addition, placement of pilings in waters of the United States
constitutes a discharge of fill material and requires a Section 404
permit when such placement has or would have the effect of a discharge
of fill material. Examples of such activities that have the effect of a
discharge of fill material include, but are not limited to, the
following: Projects where the pilings are so closely spaced that
sedimentation rates would be increased; projects in which the pilings
themselves effectively would replace the bottom of a waterbody; projects
involving the placement of pilings that would reduce the reach or impair
the flow or circulation of waters of the United States; and projects
involving the placement of pilings which would result in the adverse
alteration or elimination of aquatic functions.
(i) Placement of pilings in waters of the United States that does
not have or would not have the effect of a discharge of fill material
shall not require a Section 404 permit. Placement of pilings for linear
projects, such as bridges, elevated walkways, and powerline structures,
generally does not have the effect of a discharge of fill material.
Furthermore, placement of pilings in waters of the United States for
piers, wharves, and an individual house on stilts generally does not
have the effect of a discharge of fill material. All pilings, however,
placed in the navigable waters of the United States, as that term is
defined in 33 CFR part 329, require authorization under section 10 of
the Rivers and Harbors Act of 1899 (see 33 CFR part 322).
(ii) [ Reserved]
Dredged material means material tbat is excavated or dredged from
waters of the United States.
Effluent means dredged material or fill material, including return
flow from confined sites.
Federal Indian reservation means all land within the limits of any
Indian reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation.
Fill material. (1) Except as specified in paragraph (3) of this
definition, the term fill material means material
[ [ Page 280])
placed in waters of the United States where the material has the effect
of:
Ci) Replacing any portion of a water of the United States with dry
land; or
(ii) Changing the bottom elevation of any portion of a water of the
United States.
(2) Examples of such fill material include, but are not limited to:
rock, sand, soil, clay, plastics, construction debris, wood chips,
overburden from mining or other excavation activities, and materials
used to create any structure or infrastructure in the waters of the
United States.
(3) The term fill material does not include trash or garbage.
General permit means a permit authorizing a category of discharges
of dredged or fill material under the Act. General permits are permits
for categories of discharge which are similar in nature, will cause only
minimal adverse environmental effects when performed separately, and
will have only minimal cumulative adverse effect on the environment.
Indian Tribe means any Indian Tribe, band, group, or community
recognized by the Secretary of the Interior and exercising governmental
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authority over a Federal Indian reservation.
Owner or operator means the owner or operator of any activity
subject to regulation under the 404 program.
Permit means a written authorization issued by an approved State to
implement the requirements of part 233, or by the Corps under 33 CFR
parts 320-330. When used in these regulations, ‘‘permit’’ includes
‘‘general permit’ as well as individual permit.
Person means an individual, association, partnership, corporation,
municipality, State or Federal agency, or an agent or employee thereof.
Regional Administrator means the Regional Administrator of the
appropriate Regional Office of the Environmental Protection Agency or
the authorized representative of the Regional Administrator.
Secretary means the Secretary of the Army acting through the Chief
of Engineers.
State means any of the 50 States, the District of Columbia, Guam,
the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana Islands, the Trust Territory of the
Pacific Islands, or an Indian Tribe as defined in this part, which meet
the requirements of Sec. 233.60.
State regulated waters means those waters of the United States in
which the Corps suspends the issuance of section 404 permits upon
approval of a State’s section 404 permit program by the Adnu.nistrator
under section 404(h). The program cannot be transferred for those waters
which are presently used, or are susceptible to use in their natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce shoreward to their ordinary high water
mark, including all waters which are subject to the ebb and flow of the
tide shoreward to the high tide line, including wetlands adjacent
thereto. All other waters of the United States in a State with an
approved program shall be under jurisdiction of the State program, and
shall be identified in the program description as required by part 233.
Waters of the United States means:
All waters which are currently used, were used in the past, or may
be susceptible to us in interstate or foreign commerce, including all
waters which are subject to the ebb and flow of the tide.
All interstate waters including interstate wetlands.
All other waters, such as intrastate lakes, rivers, streams
(including intermittent streams), xnudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation, or destruction of which would or could affect
interstate or foreign commerce including any such waters:
Which are or could be used by interstate or foreign travelers for
recreational or other purposes; or
From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
Which are used or could be used for industrial purposes by
industries in interstate commerce.
All impoundments of waters otherwise defined as waters of the United
States under this definition;
[ [ Page 281)]
Tributaries of waters identified in paragraphs (g) (l)-(4) of this
sect ion;
The territorial sea; and
Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified in paragraphs (q)(l)-(6) of this section.
Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of the Act (other than cooling ponds
as defined in 40 CFR 123.11(m) which also meet the criteria of this
definition) are not waters of the United States.
Waters of the United States do not include prior converted cropland.
Notwithstanding the determination of an area’s status as prior converted
cropland by any other federal agency, for the purposes of the Clean
Water Act, the final authority regarding Clean Water Act jurisdiction
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remains with EPA.
Wetlands means 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
vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.
[ 53 FR 20773, June 6, 1988, as amended at 58 FR 8182, Feb. 11, 1993; 58
FR 45037, Aug. 25, 1993; 64 FR 25123, May 10, 1999; 66 FR 4575, Jan. 17,
2001; 67 FR 31142, May 9, 2002]
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
CIVIL ACTION FILE
ENVIRONMENTAL DEFENSE FUND,
NORTH CAROLINA WILDLIFE
FEDERATION, NORTH CAROLINA
COASTAL FEDERATION, NATIONAL
AUDOBON SOCIETY, and SIERRA
CLUB,
V.
Plaintiffs,
)
)
)
)
)
)
GREER TIDWELL, REGIONAL
ADMINISTRATOR, REGION IV,
U.S. ENVIRONMENTAL PROTECTION
AGENCY; WILLI.AM K. REILLY,
ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION
AGENCY; COL WALTER S. TULLOCH,)
DISTRICT ENGINEER, WILMINGTON,)
U.S. ARMY CORPS OF ENGINEERS;
MICHAEL P.W. STONE, SECRETARY,)
U. S. DEPARTMENT OF THE ARMY;
AND WEYERHAEUSER COMPANY,
Defendants.
NO. 91 - 467 - 1 - 5 F f L E 0
FE 71994
NOTICE OF FILING OF REMAND
DETERMINATION PURSUANT TO
COURT’S MARCH 4, 1993 ORDER
04V
ui
In response to the Court’s Order filed on March 4, 1993,
defendant United States Environmental Protection Agency hereby
Step11en A. West
Assistant United Syates Attorney
P.O. Box 26897
Room 874 Federal Building
310 New Bern Avenue
Raleigh, NC 27611
files their Remand Determination.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
CIVIL ACTION FILE NO. 91-467-CIV-5-D
ENVIRONMENTAL DEFENSE FUND,
NORTH CAROLINA WILDLIFE
FEDERATION, NORTH CAROLINA
COASTAL FEDERATION, NATIONAL
AUDOBON SOCIETY, and SIERRA
CLUB,
Plaintiffs,
v. ) NOTICE OF FILING OF REMAND
DETERMINATION PURSUANT TO
GREER TIDWELL, REGIONAL ) COURT’ S MARCH 4, 1993 ORDER
ADMINISTRATOR, REGION IV,
U.S. ENVIRONMENTAL PROTECTION
AGENCY; WILLIAM K. REILLY,
ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION
AGENCY; COL WALTER S. TULLOCH,)
DISTRICT ENGINEER, WILMINGTON,)
U.S. ARM! CORPS OF ENGINEERS;
MICHAEL P.W. STONE, SECRETARY,)
U . S. DEPARTMENT OP THE ARMY;
AND WEYERHAEUSER COMPANY,
Defendants.
______________________________________________________________________________________ )
In response to the Court’s Order filed on March 4, 1993,
defendant United States Environmental Protection Agency hereby
files their Remand Determination.
p ct fully Submitted,
Stephen A. West, Esq.
Assistant United States Attorney
P.O. Box 26897
Room 874 Federal Building
310 New Bern Avenue
Raleigh, NC 27611

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EPA Region IV Section 404(f)
Special Matter Determination
Weyerhaeuser Company - Parker Tract
Washington County, North Carolina
INTRODUCTION
The plaintiff environmental organizations (hereinafter
“Plaintiffs”) gave notice on January 17, 1990, to the
Weyerhaeuser Company (hereinafter “Weyerhaeuser”), the United
States Environmental Protection Agency (hereinafter “EPA”) and
the United States Army Corps of Engineers (hereinafter “Corps”)
of their intent to sue pursuant to Section 505 of the Clean Water
Act (“CWA”) based on Weyerhaeuser’s alleged conversion of a
forested wetlands (the “Parker Tract”) into a managed pine
plantation without a required Section 404 permit. 2 Based on its
preliminary review, EPA declined to take enforcement action. The
Plaintiffs filed suit in U. S. District Court in North Carolina
on July 22, 1991. Weyerhaeuser took the position that Section
404(f) exempted its activities from regulation under the CWA.
On March 4, 1993, at EPA’s request, the Court issued an
order remanding the matter to EPA for a formal determination of
the applicability of Section 404(f) of the CWA to Weyerhaeuser’s
activities on the Parker Tract.’ This document represents EPA’s
formal determination of the applicability of Section 404 to
Weyerhaeuser’ s activities.
As explained in today’s determination, a key factual issue
is whether the Parker Tract was a wetlands under the CWA at the
time CWA jurisdiction would have first applied and whether it
‘While about two thirds of the tract involved in the
litigation was purchased from J.D. Parker and Sons and the rest
from other owners, the term “Parker Tract” is used to refer to the
entire tract.
2g Documents 9 and 10, EPA March 1993 Submission of Relevant
Materials to the Court.
3 Environmental Defense Fund, et al. v. Greer Tidwell . Regional
Administrator , No. 91—467-CIV-5—D (E.D.N.C., July 22, 1991).
‘The March 4, 1993 Order required EPA submit its remand
determination on September 30, 1993. On September 28th, in
response to Plaintiff’s Motion for an Extension of Time for EPA to
submit its determination, the Court granted an extension until
January 7, 1994. on December 18, 1993, the United States requested
and was granted an extension to submit its determination until
February 7, 1994.

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remained a wetland.S Accepting guendo plaintiffs’ assertion
that the site remained wetlands at all relevant times, EPA
reviewed the applicabi litY of Section 404 to Weyerhaeuser’s
activities on the Parker Tract from 1978 forward. EPA has
concluded that under the then applicable interpretations,
Weyerhaeuser’s andcieariflg activities would not have been
regulated and that Weyerhaeuser’s other activities on the Parker
Tract (with the possible exception of some field ditch
construction) would have fallen within Section 404(f)(l) and not
have been recaptured under Section 404(f)(2). Based on our
extensive review of the record, EPA has concluded that, because
so much time has passed, because of the changing regulatory
scheme, and because of changing conditions at the site, it is not
possible at this time to determine with any confidence whether
there was any violation of Section 404. Accordi-flgly, we are
exercising our prosecutorial discretion not to take enforcement
action against Weyerhaeuser’s past silvicultUral operations on
the Parker Tract.
The remainder of this determination explains EPA’S analysis,
sets forth our interpretation of the relevant portions of Section
404(f), and applies Section 404(f) to the facts to the extent
they are determinable.
STATUTORY FRAMEWORK
Section 301(a) of the CWA prohibits the discharge of
pollutants to the navigable waters except in compliance with,
inter alia , Section 404. Section 502 and the implementing
regulations define navigable waters as the waters of the United
States, which under current regulations include, inter alia ,
traditional navigable waters, their tributaries, and adjacent
5 EPA believes that its analysis of wetlands jurisdictiOn.is
within the scope of the remand in this case. “GeOgraPh3..C”
jurisdictional issues are inextricably intertwined with
“activities” jurisdictional questions. No formal written wetlands
delineation has been made by the Corps or EPA for the tract in
question. AccordinglY, we believe that it is appropriate under the
remand for EPA to address all issues needed to resolve the
application of Section 404 to waters of the united States
activities, including, to the extent relevant, the presence of
waters of the United States on the Parker Tract. Such a course
both contributes to judicial and administrative efficiency and
accords with EPA’s authority to make jurisdictional determinations
under the CWA.
2

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wetlands.’ Wetlands are defined as those areas which are
inundated or saturated at a frequency and duration such that,
under normal circumstances, they support a prevalence of
vegetation typically adapted for life in saturated soil
condi.tions. 7 Thus, a wetlands delineation (jurisdictional
determination) is based on consideration of soils, vegetation and
hydrology; positive indicators that hydric soils, hydrophytic
vegetation and wetlands hydrology would be present are necessary
f or an area to be considered a jurisdictional wetlands.
Section 502 and the implementing regulations, 40 CFR Part
232, define the discharge of pollutants to include the discharge
of dredged or fill material from a point source. Point sources
include backhoes and similar conveyances. Avoyelles Soortsman
League v. Marsh , 715 F. 2d. 897 (5th Cir. 1983). The
construction of drainage ditches and raads in wetlands involve
discharges. Other silvicultural activities which may include
discharges, if conducted in a wetlands, include landclearing, the
construction of dikes and bedding, harvesting and cultivation.
For an extensive discussion of activities involving discharges,
58 Fed. Reg. 45008 (Aug. 25, 1993).
Section 404(a) authorizes the Corps (or approved states) to
issue individual or general permits for the discharge of dredged
or fill material (permits for other kinds of pollutants are
issued by EPA or approved states under Section 402), based on
criteria developed by EPA. As a result of controversy over the
expansive scope of the Section 404 program, Congress amended
Section 404 in 1977 to exempt certain activities enumerated in
Section 404(f)(1), primarily discharges associated with certain
norma]. farming and silvicultura]. operations. To limit the
environmental effect of the exemptions, Congress also enacted
Section 404(f)(2), which effectively recaptures otherwise
exempted discharges if they are incidental to an activity which
brings an area of waters of the United States into a new use,
6 The Corps did not initially recognize this full expanse as
falling under navigable waters limiting jurisdiction to waterB
considered to be “navigable—in—fact.” As explained below,
jurisdiction for the Section 404 program was phased-in; until the
phase—in was complete in 1977, discharges in waters categorized as
Phase III were deemed permitted. 33 CFR if 323.3(a) and 323.4—
1(a) (1977), 42 Fed. Reg. 37122 (July 19, 1977). The exact date
for Phase III was July 1, 1977. However, because the state of the
record does not enable us to pinpoint most activities on the Parker
Tract down to the day and month, this document addresses time in
terms of years and hence uses the period through 1977 to represent
the “pre-regulation” period and 1978 forward to represent the
period of potential regulation of activities.
7 See 40 CFR 232.2(r); 33 CFR §328.3(b).
3

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where the reach of the waters is reduced or flow or circulation
impaired.a
SITE LOCATION
The Parker Tract is located on the Albemarle-Pa.mlico
peninsula near Plymouth, in Washington County, North Carolina,
and is situated at the northern end of what has historically been
referred to as the East Dismal Swamp.’ The Parker Tract is
located on relatively higher ground east of the Suffolk Scarp. A
scarp is a term utilized by geologists to designate a somewhat
steeper slope, which interrupts a plane or gentle inclination.
In this case, the Suffolk Scarp represents a prehistoric ocean
shoreline formed about 75,000 years ago. Elevations range from
about 20 feet above sea level in the western portion of the
Parker Tract to slightly belów.15 feet above sea level in the
northeastern portions .
HISTORY OF THE SITE
The John L. Roper Lumber Company and its real estate
subsidiaries ditched and logged the Parker Tract from about 1885
until the 1940’s. According to Weyerhaeuser, in addition to
logging, apparently Roper ultimately intended to drain and
convert the entire East Dismal Swamp into farmlands to be sold to
new settlers. 1 ’
Several large drainage canals were constructed in close
proximity to or bisecting the Parker Tract in the 1950’s or
8 See Discussion of 404(f), infra .
‘Affidavit of Joseph H. Hughes, August 2, 1993 United States
District Court for the Eastern District of North Carolina, Raleigh
Division Civil Action File No. 91-467-CW-5-D, Catalog E, Tab 5,
Weyerhaeuser August 3, 1993 Submittal of Documents to EPA
(Hereinafter, “Hughes Affidavit”). generally Weyerhaeuser
Document entitled “Submittal of Documents and Co imnents by
Weyerhaeuser Co. August 3, 1993” (Hereinafter “8/3 Submittal”)
which provides a summary of Weyerhaeuser’s position, the maps
submitted by Weyerhaeuser found at Catalog B of their August 3,
1993, submission to the EPA and the maps included in EPA’s March
1993 Submission of Relevant Documents to the court.
‘°8/3 Submittal, Page 10.
‘ 1 For a detailed description of the general history of the area
and a specific history of the Parker Tract, 8/3 Submittal, and
the documents referenced that are found in the Weyerhaeuser August
3, 1993 submission of documents to EPA.
4

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1960’s. 12 Canal #16, constructed by the Albemarle Drainage
District, borders the Parker Tract on the southwest, and the
Sherril Canal forms its southern boundary. The Sexton or Parker
Canal bisects the Parker Tract east to west and is located about
une mile north of the Sherril Canal. 13 In the summer of 1967;
Weyerhaeuser purchased 7,930 acres of the Parker Tract and in
1969 the remaining 3,145 acres. 14 At the time of
Weyerhaeuser’s purchase of the Parker Tract, the property was
regenerating into inunature stands of mixed hardwoods and pine
after disturbances associated with the prior logging and wildfire
events.
Upon gaining title to the land, Weyerhaeuser began a forest
management planning process and implemented the plan on the
Parker Tract, managing the silvicultural activities to meet their
goals of timber production. 16 Initially Weyerhaeuser managed
the Parker Tract for the regeneration of both mixed hardwood and
pine, but in the 1970’s, focused its efforts on the regeneration
of harvested areas with loblolly pine. 17 During the early
1970’s, Weyerhaeuser started the construction “of an extensive
network of field ditching on the Parker Tract to maximize
loblolly pine growth potential. . . . Additional forest access
roads were installed to maximize the efficiency of operations
[ timber management] throughout the property. By 1978, field
ditching and forest access roads had been installed throughout
the entire Parker Tract..le An examination of aerial
128/3 Submittal, Page 10, g also, Hughes Affidavit, Pages 3-
5.
13 See Maps referenced in the Index of Relevant Materials and
included in EPA’s March 1993 Submission of Relevant Materials to
the court.
149/3 Submittal, Page 1, n.1, and Pages 14-15, See also Hughes
Affidavit, Page 5.
158/3 Submittal Page 14, also Hughes Affidavit, Page 5.
169/3 Submittal, Page 15-16, also Hughes Affidavit, Page
6.
178/3 Submittal, Page 16, also Hughes Affidavit, Pages 6-7.
188/3 Submittal, Page 16. also Hughes Affidavit, Page 8 for
additional discussion. A few additional field ditches were
apparently constructed during the 1978 - 1984 period. See
Weyerhaeuser Catalog G, Tab 15.
5

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photographs substantiates this chronology.-’
In summary, the drainage system consists of main drainage
canals (the Parker or Sexton, Sherril, and No. 16 Canals,
constructed in the 1 50’s and 1960’s) approximately 6 to 10 feet
deep, collector canals, and field ditches that empty into the
collector canals. The field ditches are usually 2 to 4 feet deep
arid, in most cases, spaced about 330 feet apart. 2 ° This
historical drainage system represents an artificial drainage
system commonly utilized in Washington County, North Carolina. 2
Due to the combined effects of drainage, t e organic nature of
some of the soils and the debris from the earlier logging
activity, the Parker Tract has been subjected to intense
wildfires as recently as 1957.22
Sometime in the early 1980’s Weyerhaeuser installed
controllable riser board dams in the collector ditches on the
Parker Tract. 23 Riser boards are removable boards which are
used to reduce flow through the drainage ditches, i.e., increase
the wetness of an area, where needed for silvicultural purposes
such as fire control, establishing seedlings and facilitating
planted pine growth. The riser boards were in place at the time
of EPA’s and Corps’ initial visits to the site in early 1990.
Although the exact dates are unknown, at some point around July
1992, Weyerhaeuser removed almost all of the riser boards
specifically to allow the site to return to the hydrological
19 See Weyerhaeuser Catalog B, Map 21. Weyerhaeuser has also
provided a chronology of the field ditching in Catalog B, Tabs 15-
16. (Compare with Catalog G, Tab 1.] Two small areas of the
Parker Tract, Swenson’s Swamp and the headwaters of Kendrick Creek,
have not been ditched.
20 Hydrology of the Parker Tract, R. Wayne Skaggs, July 27,
1993, Exhibit B to Skaggs Affidavit, Weyerhaeuser Catalog E, Tab 1.
21 Affidavit of W. Blake Parker in the United State District
Court for Eastern North Carolina, Raleigh Division, Civil Action
File No. 91—467—CIV—5-D, July 29, 1993, Catalog E, Tab 3,
Weyerhaeuser August 3, 1993 Submission to EPA, (Hereinafter,
“Parker Affidavit”).
229/3 Submittal, Page 14, See also Hughes Affidavit, Page 5.
23 Map attached to August 16, 1993 letter to Thomas Welborn,
Lee Pelej arid Philip Mancusi-Ungaro from John A. J. Ward, and
Hughes Affidavit, Page 8.
6

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conditions that were present prior to the 1980’s. 24
REMAND DETERMINATION
Introduction
During this remand, EPA made several site visits to make
observations of vegetation, soil types, and hydrology. In
addition, it invited the other parties to the litigation to
submit additional information for EPA’S consideration.
Weyerhaeuser conducted its own field work, and submitted that
information as well as additional historical information and
interpretive memoranda on August 3, 1993, with additional
materials submitted on November 11, 1993. Plaintiffs did not
initially conduct their own field work, but did submit materials
to EPA which addressed pine plantation conversions generally and
the wetlands values of the Parker Tract, on August 19, 1993.
Plaintiffs’ second submission, dated November 16th, critiqued
Weyerhaeuser’s August 3, 1993, analysis and included information
generated during site visits by their experts. These materials
have been included in the administrative record and have been
reviewed by EPA. 25
In its August 3, 1993, submissions, Weyerhaeuser took a
different position, based on a new interpretation of the
evidence. In essence, Weyerhaeuser contended that the vast
majority of the site (although they acknowledged two areas of the
site, Swenson’s Swamp and near Kendrick Creek, remain wetlands)
had been effectively drained and converted to uplands prior to
the time that Section 404 jurisdiction was asserted over the site
in 1978 or alternatively, that the process was completed by
discharges authorized by a nationwide permit for discharges in
headwaters which was in effect from 1978 through October 1984.
If either circumstance were the case, the site would have been
legally converted and would have ceased to be waters of the
United States. In the absence of any reestablishment of waters
of the U.S. on the site, subsequent activities on the site would
24 August 23, 1993 letter, Mr. John A.J. Ward to Mr. Thomas C.
Welborn and Mr. Philip G. Mancusi-Ungaro, EPA, citing September 9,
1992 letter from Mr. Ward to Daniel S. Goodman, U.S. Department of
Justice. The removal of riser boards and subsequent draining of
the site does not involve the discharge of dredged or fill
material.
25 As this determination was being conducted pursuant to a
remand in the context of litigation, EPA’s investigation of
Weyerhaeuser’s operations and the Parker Tract, was much more
extensive than a normal Section 404(f) determination by EPA or the
Corps.
7

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not be regulated under Section 404 because those activities would
not be “discharges to navigable waters,” rather than because they
involved discharges which were listed in Section 404(f)(1) and
which were not recaptured under Section 404(f)(2). 2 ’
Plaintiff s’ August 1993 submission, on the other hand,
started with the premise that the site was (and remained) a
jurisdictional wetlands during the time when it was being
converted into a pine plantation and argued in essence that
Weyerhaeuser’s establishment of a pine plantation in a natural
wetlands so altered the hydrologic regime nd wetlands functions
and values of the site that it was not a normal silvicultural
activity exempted from regulation under Section 404(f)(1) and, in
any case, was recaptured under Section 404(f)(2). Plaintiffs’
November 1993 submission addressed Weyerhaeuser’s site specific
contentions, taking issue with nearly every point, but especially
the hydrology analysis.
If it were true that some of the activities had taken place
prior to enactment of the CWA, or in Phase III waters prior to
1978, or were authorized by nationwide permit or took place in
legally converted wetlands, Weyerhaeuser would not have been
required to apply for a Section 404 permit for those activities
and they could be excluded from the Section 404(f) analysis.
Accordingly, in making its formal determination, EPA decided that
it was logical to first address Weyerhaeuser’s contentions
concerning the jurisdictional status o.f the site.
EPA’s review of the entire administrative record, including
historical aerial photographs, confirmed Weyerhaeuser’s
description of the chronology of ditch and road construction,
that is, the ditches and roads were essentially complete and
functioning by 1978, and no roads and ditches were constructed
after 1984. Harvesting and regeneration continued on a
rotational basis during and after that time period.
Phasing-In of Clean Water Act Jurisdiction
The CWA was enacted in 1972; prior activities were not
subject to the Act. As mentioned above, the Corps initially
interpreted Section 404 jurisdiction as extending only to
navigable-in-fact waters of the United States. 2 ’ However, in
response to a court order, the Corps issued interim final
26 Weyerhaeuser also argued that, if arguendo the area had not
been converted, and there were discharges, those discharges were
exempt under Section 404(f). This argument was essentially the
position it had taken prior to the remand. See e.g. ,
Weyerhaeuser’s answer to the complaint.
27 discussion under Statutory Framework and n. 5, supra .
8

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regulations on July 25, 1975, which set out a phased-in expansion
of Section 404 jurisdiction by classifying certain waters, Phase
I, II or III. Phase I waters included coastal waters and
traditional navigable waters and their contiguous wetlands, Phase
II included primary tributaries (below their headwaters) tr Phase
I waters and their contiguous wetlands, and Phase III included
all other waters and their contiguous wetlands (below their
headwaters). Under the regulations, discharges to Phase II and
Phase III waters were covered by a general permit and did not
require an individual permit under Section 404 unless the
discharges were made after July 1, 1976 (extended until September
1, 1976) or July 1, 1977, respectively. 28
On July 19, 1977, the Corps promulgated revisions to its
Section 404 regulations, which retained the nationwide permit for
discharges during the phase-in. The regulations also asserted
jurisdiction over headwaters areas but included a nationwide
permit for discharges in non-tidal headwaters and their adjacent
wetlands. 2 ’ Under the nationwide permit, any discharges of
dredged or fill material to those areas upstream of the 5 cubic
feet per second “headwaters” point on a stream would not require
an individual permit, except in cases specified by the Corps
District
Phase III waters
Weyerhaeuser asserts that the only potential category of
waters of the United States applicable to the Parker Tract was
Phase III. Plaintiffs, on the other hand, assert that the
headwaters point has not been established with the necessary
proof and that, in any case, the site historically was part of a
larger wetlands which was adjacent to traditional navigable
waters (i.e., was Phase I), or, at a minimum, adjacent to•a
primary tributary to such waters (i.e., was Phase II), and hence
was subject to regulation in 1975 or 1976.
The record does not clearly establish where the headwaters
28 under the 1975 regulations, areas above the headwaters of
tributaries were not considered to be waters of the United States
at all, even after Phase III was complete, unless the Corps elected
to assert jurisdiCtion on a case by case basis. 33 CFR Section
209.120(d)(2)(C)(197 5). The 1977 regulations changed this,
asserting jurisdiction over headwaters of all regulated streams.
42 . .g. 37122 (July 19, 1977).
30 1n October, 1984, the nationwide permit was modified to limit
applicability of the permit to discharges causing the loss or
degradation of 10 acres or less and was redesignated Nationwide
Permit 26.
9

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are on the two streams originating on the site. On the one hand,
Corps maps prepared 6-8 years ago show the estimated headwaters
of Conaby Creek as just off the Parker Tract on the west and the
estimated headwaters of Kendrick Creek as just inside the Parker
Tract on the east in each case the estimated headwaters point is
shown as very close to the origin of the creek in question on the
map. This would suggest that the Parker Tract is largely above
the headwaters. However, the Corps Wilmington District does not
consider these maps as reliable for pinpointing the headwaters
for areas like the Parker Tract (e.g., ditched areas with little
gradient and few water control-structures), and expressed the
opinion that, due to these features, it would be very difficult
to ascertain the headwater points at the present time, much less
historically, 16 years in the past. 31
Since the starting date of effective Section 404 regulation
over the Parker Tract is relevant to Weyerhaeuser’s claim that
the site was legally converted to uplands, EPA has considered
what approach to take for the Phase 1/11/111 waters issue under
the circumstances. EPA believes that it would not be appropriate
to assume that the Parker Tract is below headwaters in the
context of applying the Phase 11/111 categorization. 32 As noted
above, the purpose of the phased approach to implementing the
regulations was to make the Corps’ administrative burden
manageable as it expanded its jurisdiction in response to NRDC v.
Callaway , 392 F. Supp. 685 (D.D.C. 1975). Phasing also increased
the likelihood that the public would be aware of permit
requirements by the time they applied. 33 Under the Corps
regulations in effect from 1975-1977, areas above headwaters were
not even considered waters of the United States unless the
District Engineer made a determination that their regulation was
necessary to protect water quality. 34 Accordingly, presuming an
area to be Phase II (below headwaters) and therefore subject to
315 Cathy Winer February 2, 1994 memo to file re
conversations with Corps (hereinafter “Winer memo”).
32 1n contrast, in the context of ascertaining the applicability
of the 1977 and subsequent nationwide permits for discharges in
waters of the United States above the headwaters, EPA believes it
i . appropriate, in the absence of a clear demonstration of the
headwaters point, to assume that the permit is not applicable on
the grounds that the area has not been shown to be above
headwaters, as the burden is normally on the discharger to
establish the applicability of a nationwide permit he relies on.
See infra at Page 15.
Preamble to Corps’ 1975 Regulation, 40 Fed. Reg. 34320—21
(July 25, 1975).
40 Fed. Reg. 34321 (July 25, 1975).
10

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individual permit requirements in 1976, instead of Phase III
(above headwaters) in the absence of reliable information would
not serve the purpose of the phase-in. The fact that EPA is
making this jurisdictional determination 16 or more years after
the fact, in response to a demand that EPA take enforcement
action, further justifies a cautious approach.
Plaintiffs also contend that historically the site was part
of a wetlands system adjacent to the Albemarle Sound and hence,
should be considered Phase I waters or was also adjacent to a
primary tributary below the headwaters point and therefore was
Phase II. However, the entire area, including the historical
wetlands, had been significantly altered by the mid 1970’s (for
example, the Parker Tract was surrounded by cleared and drained
agricultural areas 35 ). The exact extent of the remnants of the
original wetlands system as of that time is unclear, but there is
a basis for concluding that the portion contained in the Parker
Tract was not adjacent to the Sound (and considered Phase I) or
below the headwaters point on a primary tributary (and considered
Phase II). Accordingly, for much the same policy reasons that
EPA assumed the Parker Tract was above the headwaters point for
the purposes of phase-in, EPA declines to assume, without
stronger evidence, that the site remained adjacent in any
meaningful way to the A].bemarle Sound or to primary tributaries
below their headwaters.
Accordingly, EPA concluded that 1978 was the date that the
Clean Water Act regulations became applicable, assuming that the
area was still a wetlands at that time. Pre-1978 activities on
the site did not require a Seátion 404 permit. Therefore, EPA
next considered whether the record supported a conclusion that
the ditching, road building and any other activities on the site
had converted the site to uplands by 1978. (If so, it would be
unnecessary to determine whether Weyerhaeuser’s activities after
1978 constituted normal si].viculture operations under Section
404(f)(1) or to reach Section 404(f)(2)).) To assess the
jurisdictional status of the site, EPA looked to the data
reflecting current conditions of the site as an indicator of what
the 1978 to present conditions may have been, since detailed
historical site information was not available. Although EPA
believes that projecting back in this fashion may in some cases
be reasonable, EPA, after much deliberation, concludes that in
the present case the current information concerning the hydrology
of the site is insufficient to support a reasonably reliable
projection back to 1978, as discussed below.
Jurisdictional Wetlands Analysis
Discussion, 8/3 Submittal.
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Currently, EPA and Corps both use the 1987 Corps of
Engineers Wetlands Delineation Manual (“1987 Manual”) with
clarifying guidance issued by the Corps as guidance in
implementing the regulation. 3 ’ At the time this litigation was
instituted, 1989 Interagency Federal Manual for Identifying and
Delineating Jurisdictional Wetlands (“1989 Manual”) was in use.
However, in August 1991, a rider to the Corps’ appropriation act
effectively required the Corps to return to the 1987 Manual. To
avoid confusion in the regulatory conununity and the potential for
inconsistent jurisdictional determinations, on January 4, 1993,
EPA agreed to also use the 1987 Manual wits existing supplemental
guidance. 37 Accordingly, EPA used the 1987, as opposed to the
1989, Manual as guidance in connection with this remand.
The 1987 Manual provides technical guidelines for making
determinations of the geographic extent of wetlands recognized by
EPA and the Corps in their regulations. 38 These determinations
are based on the three parameters of hydrology, vegetation and
soils. Diagnostic environmental characteristics are used in
applying the technical guidelines for these parameters. 39 The
1987 Manual requires a demonstration of all three parameters in
order to make a positive wetlands determination. 40
EPA’S goal was to determine the extent of jurisdictional
wetlands, if any, that were present at the Parker Tract in 1993
based on data that EPA collected in April, June, and July, 1993,
and on information provided by Weyerhaeuser and Plaintiffs for
inclusion in the record. Using the conclusions regarding the
current extent of the wetlands on the Parker Tract, EPA expected
to project back to 1978 to attempt to reasonably determine
whether or not Weyerhaeuser’s pre—1978 activities had converted
the wetlands at the site to uplands. Very little detailed
information is available regarding conditions at the Parker Tract
in 1978.
36 See generally Corps of Engineers Wetlands Delineation Manual,
Technical Report Y-87—1, January 1987, and Corps October 7, 1991
Memorandum “Questions and Answers on 1987 Manual” and March 6 1992
Guidance Memorandum “Clarification and Interpretation of the 1987
Manual”.
“ January 14, 1993, EPA Memorandum and attached January 4,
1993, Amendment to the January 19, 1989 EPA/Corps Memorandum of
Agreement on Geographic Jurisdiction.
33 CFR § 328.3(b) and 40 CFR § 232.2(r).
39 See aenerallv 1987 Manual and Corps 10/91 and 3/92 Guidance.
‘°See 1987 Manual, Page 14.
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Weyerhaeuser, Plaintiffs, and EPA each analyzed the Parker
Tract’s jurisdictional status. 4 ’ Weyerhaeuser’s experts
concluded that the 1987 Manual criteria for hydrology and soils
were not met at the Parker Tract in 1993. On this basis,
Weyerhaeuser concluded that the site is currently not a wetlands
within the meaning of EPA’s and the Corps’ regulations, and would
not have been wetlands in 1978, when ditching on the site was
essentially completed. 42
Plaintiffs also submitted extensive information to support
their conclusion that, in 1993, the Parker.Tract satisfied all
three parameters and was therefore wetlands subject to Clean
Water Act jurisdiction. Affidavits provided by Plaintiffs
contend that ditching on the site had not sufficiently altered
the hydrology to remove jurisdiction and that the Parker Tract
was wetlands through the period when Weyerhaeuser’s silvicultural
conversion activities were occurring.
Based on our analysis of the record, EPA has determined that
the soil and vegetation parameters of the 1987 Manual were
generally met on the Parker Tract during 1993; however, evidence
regarding the hydrologic status of the Parker Tract is
conflicting and insufficient to determine whether the site
currently satisfies the hydrology parameter in the 1987 Manual,
much less whether the hydrology parameter has been satisfied
since 1978. For example, Plaintiffs correctly recognize that
under the 1987 Manual, field indicators at the Parker Tract could
be interpreted to satisfy the hydrology parameter by a
combination of wetland vegetation that has become established
since 1978, Plaintiffs’ expert’s direct observation of soil
ponding on the Parker Tract during the growing season, and
hydrologic data in the Soil Conservation Service’s County Soil
Survey. 43 Weyerhaeuser, on the other hand, concluded that the
Parker Tract would not have met the hydrology parameter in 1978
based on a quantitative analysis of the 1993 hydrologic status of
415 Generally Site Recon and Routine Wetland Determination
Report and Attachments, USEPA, Region IV Environmental Services
Division, Ecological Support Branch (“EPA-ESD Report”); July 27 -
29, 1993 Field Inspection to the Weyerhaeuser Company’s Parker
Tract Property, Washington County, North Carolina with attachments
(“EPA Field Report”); Weyerhaeuser’s August 3, 1993 Submission of
Documents to EPA including Catalog E; Weyerhaeuser’s November 1993
Submission, and Plaintiff’s August, 1993 and November 16, 1993
Submissions with attachments.
Weyerhaeuser 11/11/93 Submittal, Page 4.
‘ 3 See Plaintiff’s Second Submittal, November 16, 1993, Page 11.
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the Parker Tract using a computer model. 44 While EPA’s
observations of vegetative analysis support Plaintiffs’
conclusions, EPA’s data on the hydrologic status of the Parker
Tract in 1993 are consistent with hydrologic data collected at
the Parker Tract by Weyerhaeuser’s expert. Considering these
inconsistencies, the generally flat and therefore slowly draining
topography of the Parker Tract, the soils that occur on the
Parker Tract, and the alternating use and removal of the riser
boards, EPA does not believe it can draw a reliable conclusion
regarding the historical hydrologic status of the Parker Tract
based on 1993 observations.
In summary, EPA finds that data in the record provided by
Weyerhaeuser, Plaintiffs, and EPA, and expert analysis of the
Parker Tract with respect to the 1987 Manual’s hydrology,
vegetation, and soils parameters are contradictory and
insufficient to interpret present conditions as indicative of
whether or not the Parker Tract would have met the 1987 Manual’s
wetland parameters 16 years ago in 1978.
SECTION 404(f) ANALYSIS
As discussed above, EPA has not been able to determine
whether or not wetlands were converted to uplands on the Parker
Tract by 1978, when Phase III jurisdiction would have been
asserted. Accordingly, to be responsive to the spirit of the
remand, the remainder of this document considers whether the
post-1978 activities on the Parker Traät would have required a
Section 404 permit if, hypothetically, the area remained a
wetland for any or all of the -period after 1978.
In the present case, Plaintiffs have argued strenuously that
the site technically remains a wetland, albeit an impaired one.
Since they are the ones who brought the case, and since EPA needs
to make some factual assumptions to make our Section 404(f)
analysis manageable, the following discussion generally accepts
arguendo , Plaintiffs’ assertion that the Parker Tract has
remained wetlands throughout the period 1978 to present. (Where
relevant to particular parts of Section 404(f), the implication
of alternative assumptions is identified).
Preliminary Issue of Timing
Weyerhaeuser argues that from 1978-84 its activities were
covered by a nationwide permit authorizing discharges above the
“ Weyerhaeuser Submittal, 8/3/93 Page 4.
45 Based on our work to date, we do not believe the necessary
information for a reliable determination is readily available.
Hence, we have not asked for a further extension of time.
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headwaters, 33 C.F.R. § 323.4-4, and that Section 404(f) needs to
be considered only for post-1984 activities.’ Plaintiffs argue
that Weyerhaeuser has not met its burden of proving entitlement
to the headwaters permit; in particular, they challenge the Corps
maps show.i.ng headwaters points relied on by Weyerhaeuser’s
experts, and argue that in any event the site was historically
part of a larger wetland which was adjacent to larger
waterbodies .4
To ascertain the Corps’ position on these issues (since the
nationwide permits were issued and generally administered by the
Corps), we consulted with the Wilmington District of the
Corps.” The Corps personnel stated that the Corps has not been
asked to, and has not made, a determination of the applicability
of any of the headwaters permits to the Parker Tract, and does
not believe that it is technically feasible in 1994 to make a
reliable, retroactive determination for 1978. Mr. Wayne Wright,
Chief, Regulatory Branch, stated that the maps, which were
prepared 6—8 years ago under the supervision of a Corps
hydrologist, were simply intended to show the estimated
headwaters point on various streams and were never intended to be
dispositive of the issue of the applicability of the headwaters
permit. According to Mr. Wright, the reliability of the
headwaters designations on the maps varies widely. In areas like
the Parker Tract, which are crisscrossed by ditches, where there
is little gradient, and where use of water control structures can
significantly redirect flow, the concept of a fixed point above
which average flow is less than 5 c.f.s is not particularly
meaningful. 4 ’
The general rule is that the burden is on dischargers to
demonstrate their entitlement to the applicability of a
nationwide permit. The key element for the permit in question is
location above the headwater point. Accordingly, given the
uncertainty as to the extent to which the Parker Tract is above
the headwaters point, we believe the prudent position for today’s
decision is that the headwaters permit has not been shown to
• 6 g 8/3 Submittal, Page 17 for a discussion of Weyerhaeuser’s
position. As a point of information, the headwaters permit was
revised in 1984 to include size limitations. There is no
contention that Weyerhaeuser’s post—1984 discharges, if conducted
in a wetland, would satisfy those size limitations.
See Plaintiffs’ November 16, 1993 submission, pp. 23—27.
“See Winer memo.
49 1n contrast, there are areas of the former East Dismal Swamp
where it is possible to make headwaters determinations. See letters
cited in Winer memo.
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apply. (We do riot, however, affirmatively find that the 1977-84
permit did not apply.) Accordingly, the following discussion
concerning Section 404(f) addresses activities during the 1978-84
period, as well as during the post-1984 period.
Statutory Framework
Section 404(f)(l) states that:
Except as provided in paragraph (2) of this
subsection, the discharge of dredged or fill
material (from activities specified in (A)
through (F)] is not prohibited by or
otherwise subject to regulation under this
Section or Section 301(a) or 402 of this Act
(except for Section 307).
Section 404(f)(2), commonly referred to as the “recapture
provision,” provides:
Any discharge of dredged or fill material
into the navigable waters incidental to any
activity having as its purpose bringing an
area of the navigable waters, into a use to
which it was not previously subject, where
the flow or circulation of navigable waters
may be impaired or the reach of such waters
be reduced, shall be required to have a
permit under this Section.
Thus, in order to conclude that a given discharge activity
is exempt from regulation, it must be demonstrated that a
discharge falls within Section 404(f)(1), and also that it is not
recaptured under Section 404(f) (2)
Section 404(f) was enacted in 1977 as part of the mid-course
corrections to the CWA and in response to public reaction to the
Corps’ expansion of its Section 404 jurisdiction following the
decision in NRDC v. Callaway , 392 F. Supp. 685 (D.D.C. 1975). In
very general terms, the legislative history indicates that
Section 404(f) reflects a trade-off between activities and
geographic jurisdiction; that is, a decision by Congress to
50 Discharges which are not exempt under Section 404(f) must be
evaluated through the appropriate permit process (either individual
or general (e.g. nationwide)). If an individual permit is
required, and the permit issuer determines the discharges comply
with the Section 404(b)(l) guidelines and other applicable
criteria, the discharges may be authorized by a suitably
conditioned permit.
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explicitly exempt certain activities which it never intended to
regulate or which are sufficiently minor so as not to require
scrutiny through the permit process, while maintaining the
program’s broad geographic jurisdiction because of the latter’s
importance to the purposes of the Act. However; as noted in the
preamble to EPA’s first proposed regulations implementing Section
404(f), 44 Fed. Reg. 34263 (June 14, 1979), the interpretation of
the Section 404(f) is exceptionally complex, because of the need
to work with the language of the statute and the extensive but
sometimes ambiguous or inconsistent legislative history. EPA’s
regulations, while construing the exemptions narrowly, charted
somewhat of a middle ground among the possible interpretations.
Id.
Section 404(f )(1 )
As noted above, Section 404(f)(].) exempts discharges of
dredged or fill material from a series of activities enumerated
in subsections (A) through (F), subject to Section 404(f)(2).
The following addresses each of the subsections of Section
404(f)(1) relevant to the Weyerhaeuser operation on the Parker
Tract from 1978 to present.
Section 404(f) (1) (A) — “Normal Silviculture ”
This subsecticri exempts the discharge of dredged or fill
material “from normal ... silviculture ... activities such as
plowing, seeding, cultivating, minor drainage, harvesting for the
production of ... forest products, or upland soil and water
conservation practices.” EPA’s regulations define “normal”
silviculture as ongoing or established silviculture, with the
objective of excluding from the term the initiation of
silviculture. 51 Therefore, a threshold question is whether
Weyerhaeuser’s discharge activities since 1978 were part of an
established silviculture operation. Based on a review of the
record, and for the reasons discussed below, we conclude that
Weyerhaeuser’s operations on the Parker Tract as of 1978 were
part of an established silviculture operation.
Weyerhaeuser purchased the vast majority of the Parker Tract
some ten years before the time period at issue (northern two
thirds from J.D. Parker and Sons in 1967 and southern third known
51 Weyerhaeuser’s submissions contain considerable material
apparently intended to demonstrate that the types of activities it
carried out were normal in the sense of “typical” or “customary.”
While this material supports a conclusion that Weyerhaeuser was
genuinely engaged in silviculture, it does not speak directly to
the question of whether the activities were part of an established
silviculture operation.
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as “Mordecai-Pfeiffer” tract in 1969),52 with the objective of
harvesting and regenerating wood products on a continuing
basis 53 . The record indicates that contemporaneously with the
purchase Weyerhaeuser developed and began implementing site-wide
manaaeinent plans for fostering growth and for harvesting and
regeneration. 54 While the particular silvicultural activities
undertaken varied over portions of the site (and were revised
over time), they appear to have covered essentially all of the
site, except f or small (generally wetter) areas which have been
kept in a relatively natural state. The harvesting of specific
sub-tracts reflected the condition of the timber remaining from
or regenerating after the prior owners’ timbering and
Weyerhaeuser’s interest in a steady production rate to supply its
Plymouth pulp mill. 55
Weyerhaeuser implies that the historic use of the Parker
Tract for timbering demonstrates the established nature of its
operations. This evidence alone, however, is not dispositive.
The record shows that although intensive timbering operations
began on the Tract after the Civil War and continued for several
decades, there was a slowdown in timbering after the peak of the
1920’s and the railroad lines on the site were unusable by the
time of the Weyerhaeuser purchase. 56 However, it is not clear
that silviculture on the site had actually been abandoned (i.e.,
that the land was lying idle, in the terminology of the
regulation) prior to Weyerhaeuser’s purchase. For example, the
record indicates that J.D. Parker had continued to harvest into
“Small parcels were added at later dates, generally to protect
outlet points.
“See Weyerhaeuser Catalog G, Tab 2, including purchase—related
documents and supporting affidavits.
generally 8/3 Submittal and Weyerhaeuser Catalogs D and
G.
“ Weyerhaeuser Catalog G, Tab 14; Chart entitled “Harvest
History Weyerhaeuser Parker Tract.” This chart plots, from 1968 to
1990, actual acres harvested, actual cumulative acres harvested and
the hypothetical cumulative acres harvested assuming a 30 year
rotation. According to the chart, there has been steady harvesting
on Parker Tract from 1968 forward that follows the 30 year rotation
plan.
S6 Weyerhaeuser Catalog D, Tabs 1 and 24.
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the 60’s.” Moreover, contemporaneous with the purchase of the
Parker Tract, documents indicate that one of the oerceived
benefits of the site was the pre-existing (and apparently largely
functional) system of roads and canals/ditches. 5 ° In any case,
as described above, immediately after its 1960’s purchase and
prior to the applicability of Section 404 to the Parker Tract,
Weyerhaeuser took affirmative action throughout the Parker Tract
to effectuate its management plan. 59 Accordingly, even if,
arguendo , the historic silviculture operations had been abandoned
by the previous owners, Weyerhaeuser had resumed silviculture
operations across the Tract well before 1978.
Plaintiffs contend, however, that Weyerhaeuser had to modify
the hydrologic regime to begin pine plantation operations, 6 ° and
hence that the pine plantation operation cannot be considered
“established” under EPA’s regulation, which provides that “an
operation ceases to be established when the area in which it was
conducted . . . has lain idle so long that modifications to the
hydrological regime are necessary to resume operations.” 1
While substantial parts of the site appear to have been put into
pine plantation operations by 1978, several subtracts were
apparently not changed over until after that date. 62 Some
subtracts remian as mixed hardwoods, hence Plaintiffs’ argument
must be considered with respect to those later planted subtracts.
Plaintiffs’ argument presupposes that a particular subset of
silviculture (e.g., pine monoculture), not just “silviculture,”
Weyerhaeuser Catalog D, Tab 1; mentions active logging
camp 1951-57; Catalog E, Tab 5 (aughes affidavit) indicates Parker
logged in the 50’s and 60’s and generally suggests continuity
between Weyerhaeuser’s operations and prior owners; and Catalog G,
Tab 16 (Lyon’s affidavit at 3 - 4).
se Weyerhaeuser Catalog G, Tab 5.
“ 8/3 Submittal, Pages 14 - 16 and cited references. This
includes a general discussion of Weyerhaeuser’s purchase of the
Parker Tract and the ongoing forest management planning and
silvicultural activities that took place.
60 8y hydrological modification, Plaintiffs are apparently
referring to not only the construction of field ditches but also to
the clearing of old vegetation and creation of beds, all of which
they assert contribute to a reduced rainfall retention time on the
site. EPA agrees that, taken together, these activities likely do
reduce rainfall retention time on the site.
61 See 40 CFR § 232.3(c)(1)(ii)(B).
625 Weyerhaeuser Catalog G, Tabs 6, 8, and 9.
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must have been established prior to the hydrological
modifications for the Section 404(f)(1)(A) exemptions to apply to
discharges associated with that subset.’ 3 However, EPA’s
regulations do not make such a distinction.” In United States
v. Akers , 785 F.2d 814, 819-20 (9th Cir. 1986), the Ninth Circuit
expressly rejected the notion that switching from one type of
wetland crop to another was not exempt. 65 In support of their
argument, Plaintiffs cite the Bayou Marcus district court
opinion. However, in that case, the court found no persuasive
evidence of pre-existing silviculture operation (uncertain
evidence of sporadic harvesting for a short period in the past
did not prove an ongoing silviculture operation); hence, that
decision cannot fairly be read as holding that intensification of
a demonstrated ongoing silviculture operation into pine
monoculture is not exempt.”
‘ 3 Plaintiffs also seem to ignore the “lain idle” predicate.
Whatever its status prior to purchase, the tract was not lying idle
in 1978, but rather was in various stages of mixed hardwood
silviculture. In addition, Plaintiffs’ theory, that if any
hydrological modification is involved an activity is not ongoing,
is undercut by 40 CFR § 232.3.(d)(3)(i)(B), which clearly indicates
that exempted minor drainage (i.e., minor drainage which is part of
an established farming or silviculture operation) can include
installation of ditches to support certain specific activities
identified in the regulation. See discussion of minor drainage
infra at Page 23.
64 5 Memorandum from Gerald H. Yamada to Josephine S. Cooper,
February 8, 1985. Moreover, even if it is possible to interpret
the Clean Water Act so as to draw a distinction between changes in
crops which do not require alterations in the hydrological regime
and changes that do, for purposes of defining established
silviculture, EPA has never interpreted its current regulations as
taking that approach. EPA does not believe that today’s decision
would be an appropriate vehicle for adopting such an
interpretation.
65 1fl response to an assertion at oral argument that all changes
in wetland use involving a discharge require a permit, the court
wrote, “We do not believe that Congress intended to place the
burden of Corps permit regulation on farmers who desire merely to
change from one wetland crop to another.” . at 820.
“To the extent that Plaintiffs are construing some of the
Bayou Marcus court’s language as implying that selectively
harvesting naturally regenerating trees cannot be silviculture,
they are in error since the controversy during Congressional debate
on Section 404(f) over whether clearcutting eastern mixed hardwoods
was exempt makes it abundantly clear that selective (uneven age)
harvesting with natural regeneration included in normal
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As indicated above, the record indicates that hydrological
modifications were not necessary before Weyerhaeuser could engage
in silviculture in the broad sense on the site (assuming arguendo
that operations on the site had been abandoned by the previous
owners). One of the selling points for the purchase of the Tract
was the pre-existing ditch system. supra . Weyerhaeuser did
add field ditches as it intensified its silvicultural operations
by switching to planted pines as particular sections were
harvested, but it was able to conduct silvicultural operations in
the meanwhile using the existing ditches.’ 7 Therefore, there
was an established silviculture operation on the Parker Tract,
within the meaning of EPA’s regulations, by 1978.
Specific activities under Section 4O4(f ’(1)(A )
Section 404(f)(l)(A) does not exempt activities
associated with normal, or established, silviculture, but rather
only activities such as those enumerated, i.e., activities such
as plowing, seeding, cultivating, minor drainage, and harvesting.
(See 44 Fed. Reg. 34264 (June 14, 1979)). Of course, there may
be various methods of conducting the listed activities. See,
e.g., statement of Cong. Roberts, 3 Leg. Mist. 350:
Perhaps more than any other forest type, Eastern
hardwoods require a wider range of cutting methods and
cultural methods with prescriptions varied to fit each
particular tract. For these reasons the interpretation
of normal silvicultural activities should not restrict
or constrain the use of a wide variety of
scientifically proven silvicultural practices.
Therefore, the next issue is which of Weyerhaeuser’s
discharge activities since 1978 are on the ( ‘.st, as it were.
40 CFR § 232.3(d) (4) defines “plowing” as “ ins of primary
tillage” to break up, turn, or stir soil t it for the
planting of crops; it does not include r’ of soil
which converts an area of waters of the dry
land. The regulation states that plo’ em
never involves a discharge.
The record indicates that ti-
silviculture. See, e.g., ren 1
495; Sen. Talinadge, 3 Leg. Mist
675 Weyerhaeuser Catalog G, rj sting
from 1969); Catalog G, Tab 15, (fielc 1 .i until
the 1970’s).
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plantations following c1earcutting ° of the formerly mixed
hardwood wetland involves the use of heavy equipment to clear
remaining debris and roots which are then typically windrowed and
burnt. In the process, some soil is typically excavated, moved
and redeposited, and the microtopography (hummocks, etc.) is
flattened, even if the area technically remains a wetland. It
appears from the record that this stage of the operation is not
primary tillage as described in the plowing definition.”
Following this landclearing, the soil is prepared for bedding;
this latter stage does fall within the definition of plowing.
At the time Weyerhaeuser was clearing the naturally
regenerating areas on the Parker Tract for pine plantation
establishment (principally the 1970’s and into the 1980’s), the
goverrunent did not consistently regulate landclearing involving
limited discharges which did not convert wetlands to dry land, on
the basis that the volume of soil movement was minimis. See
Avovelles ; and Corps Regulatory Guidance Letters (RGLs) 82-5, 85-
4 and 90-5. Accordingly, at the time it took place, the
landclearing on the Parker Tract, to the extent that it would
have been recognized as involving a discharge, would very likely
have been considered de minixnis and hence would not have been
regulated by the Corps, independent of Section 404(f). While the
government’s view of what discharges are appropriately considered
de minimis has recently been clarified under the so-called
Tulloch rule ( 58 Fed. Reg. 45008, (August 25, 1993)), it
would not be appropriate to apply that rule retroactively under
the circumstances of this case. 7 °
6 aThe clearcutting itself would be deemed harvesting, since it
involved removal of the bulk of the standing crop to supply the
sawmills. See discussion infra .
“5 May 19, 1980, preamble to regulations, 45 Fed. Reg.
33396—99.
70 Under the recently promulgated Tulloch rule, landclearing
which destroys or degrades a wetlands is regulated; landclearing
which does not do so is considered minimis . (In other words, the
minimis test has been changed from a volume test to an effects
test.) Until EPA and the Corps have developed more information,
they will have to make decisions on a case-by-case basis as to
whether particular landclearing activities meet the minimis
requirements of the Tulloch rule. However, it is apparent that
landclearing after harvest in an existing managed pine plantation
is likely to have lesser effects than the initial landclearing in
a mixed-age, naturally regenerating forest. Consequently,
landclearing discharges associated with existing managed pine
plantations are likely to be considered minimis under the
current regulations and therefore would not require a permit.
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The regulations define “seeding” to include placement of
seedlings and the placement of soil beds for seedlings on
established forest lands. 40 CFR § 232.3(d)(5) As Weyerhaeuser
began the establishment of pine plantations, it apparently began
to include seeding and bedding as part at its operations. Since,
as discussed above, the Parker Tract was an established
silvicultural operation at the time of Weyerhaeuser’s seeding and
bedding operations, those activities fall within Section
404(f) (1) (A).
The regulations define “cultivating” s physical methods of
soil treatment employed within established silviculture lands on
forest crops to aid and improve their growth, quality, and yield.
40 CFR S 232.3(d)(l) The record suggests that Weyerhaeuser’s
post-planting efforts at weed control and thinning were generally
directed at vegetation directly, rather than through disturbance
of the soil, and hence did not involve a discharge. In any
event, any cultivating in the sense of soil treatment which did
occur falls within Section 404(f)(1)(A).
“Harvesting” is defined to include physical measures
employed directly on forest crops within established
silvicultural lands to bring about their removal from forest land
but does not include construction of forest roads. 40 CFR
S 232.3(d)(2). Weyerhaeuser’s harvesting activities clearly fall
within this definition.
“Minor drainage” is defined at 40 CFR § 232.3(d)(3)(i) as
including, inter alia , installation of ditches or water control
structures incidental to planting, protecting, or harvesting
wetland crop species, when the area is in established use f or
“such wetland crop species.” Subparagraph (ii) provides that
minor drainage does not include drainage which significantly
modifies a swamp or which is associated with the immediate or
gradual conversion of a wetland to a non-wetland or conversion
from one wetland use to another (for example, sij .viculture to
farming).
The record indicates that the field ditching was largely
completed before 1978, with the final 10% being completed in the
1978-84 time frame. 71 Accordingly, EPA needs to consider
whether the final 10% meets the requirements of “minor drainage”
set out in the regulations.
71 Weyerhaeuser, Catalog D, Tab 4, Hayes Affidavit, Catalog
E, Tab 5, Hughes Affidavit; See also chart at Weyerhaeuser Catalog
G, Tab 15, which shows about 90% completion through 1977, remaining
10% by 1984.
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Since loblolly pines are a wetland crop species 72 , the
ditches were clearly installed incidental to planting a wetland
species. EPA has consistently interpreted the phrase ‘such
silvicultural crop production” in the final clause of
subparagraph (i) of the regulation not to mean that the area must
be in established use with the particular wetland crop prior to
drainage, but rather to be satisfied if another wetland crop (in
this case, mixed hardwoods and native pine) had been grown.
Accordingly the field ditches meet the requirements of
subparagraph(i).
The final hurdle to qualifying as “minor drainage” is the
requirement in subparagraph (ii) of the definition that the
ditching not significantly modify the site and not be “associated
with the immediate or gradual conversion from a wetland to non-
wetland.” As discussed above, this Section 404(f) analysis
presumes that the area has remained a wetland after 1978 to
present; under that assumption the ditches would not have caused
the conversion of the wetland to upland. Whether such ditching
would substantially modify a wetlands is too hypothetical a
question to answer given the uncertainty about the historic facts
for this Tract. In sum, assuming arguendo that the Parker Tract
has remained wetlands, the 10% of the field ditching which took
place from 1978-1984 would qualify as minor drainage unless it
were found to significantly modify the wetlands, a factual point
which would be pure speculation in the present context.
Section 4O4(fU1 (B —(E )
Section 404(f)(1)(B) exempts maintenance of currently
serviceable structures, where there is no modification to the
size, character or scope of the original fill design. While the
record notes that Weyerhaeuser “rebuilt” some of the original
roads on site, this occurred in the early 1970’s.’ Hence, the
road building predates the time period relevant to Section
404(f).
Section 404(f)(1)(C) exempts from the permit requirements
discharges from the maintenance of drainage ditches. 74 The
record indicates that there was minimal maintenance of the
72 National List of Plant Species That Occur in Wetlands:
Southeast (Region 2) Fish and Wildlife Service, USD01 Biological
Report 88(26.2) (May, 1988).
Weyerhaeuser Catalog G, Tab 1.
‘ 4 This exemption is limited to maintenance. Hence, any field
ditch construction which did not qualify as minor drainage could
not be covered by 404(f)(1)(C).
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ditches on the site,” although presumably this maintenance may
have continued after 1977. There is no suggestion that any such
maintenance as may have occurred enlarged the original capacity
of the ditches. Both Weyerhaeuser and the Plaintiffs argue that
the status quo was maintained, although they disagree on wh ther
that status quo satisfies the wetland definition. Accordingly,
the ditch maintenance occurring from 1978 to present would fall
within Section 404(f)(1)(C).
Section 404(f)(1)(E) exempts the construction and
maintenance of forest roads which comply with best management
practices (“BMPs”) to minimize impacts on the aquatic
environments. 40 CFR S 232.3(c) (6) sets out baseline EMPs.
Section 404(f)(1)(E) does not specifically require that forest
roads be part of an established operation.
The record shows that, although there were more than 24
miles of roads on the Tract at the time of purchase (G-1),
Weyerhaeuser constructed additional roads during the 1970’s,
apparently in association with the field ditches. 76 The record
indicates that the road building appears to have been complete by
1978 or 1979. ’ Accordingly, although the large majority of
forest roads were clearly covered by the phase-in nationwide
permit, there is a possibility that a small portion were
constructed afterwards.
Because of this possibility, EPA has considered the
applicability of Section 404(f)(1)(E) to the roads constructed by
Weyerhaeuser. The roads on the Tract are clearly forest roads;
there is no contention that they have been used for another
purpose or have been overbuilt to accommodate some future, non-
forestry use. Accordingly, they fall within Section 404(f)(1)(E)
if they satisfied the applicable BMPs. While the regulation
specifying baseline BMPs was not promulgated until the road
construction was complete, 78 and therefore does not directly
govern, it is nonetheless relevant as illustrative of BMPs
designed to “assure that flow and circulation patterns and
chemical and biological characteristics of the navigable waters
are not impaired, that the reach of the navigable waters is not
reduced, and that any adverse effect on the aquatic environment
“ Hughes affidavit, Weyerhaeuser Catalog E, Tab 5 at 8;
Catalog G, Tab 10 at 8.
765 Hayes affidavit, Weyerhaeuser Catalog D, Tab 4; Hughes
affidavit, Catalog E, Tab 5.
“See Weyerhaeuser, Catalog G, Tab 1.
‘ t The regulation was originally promulgated in 1980. 45 Fed.
Reg. 33290, May 19, 1980.
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will otherwise be minimized.” The record does not spell out
directly the exact design of the roads in question; however,
examination of the BMPs suggests that there was likely general
compliance, given that avoidance of wetlands is not practicable,
in an overall swamp setting such as assumed for this discussion.
Swnmarv of Section 404(f)(1) conclusions
Assuming the presence of wetlands of the site, the
particular activities which may have involved discharges which
appear to have occurred on the Parker Tract after 1978 are
harvesting, site preparation (landclearing), plowing, seeding and
bedding, cultivating, and to a very limited extent, field
ditching and road construction. With the exception of
landclearing for the initiation of the pine plantation site
preparation and possibly some of the field ditching, these
activities meet the requirements of Section 404(f)(1)(A).
Accordingly, the next section considers whether any of these
exempted activities were recaptured under Section 404(f)(2).
Section 404(f)(2) - the recapture orovision
As noted above, Section 404(f)(2) has two elements, each of
which must be addressed by a discharger claiming an exemption in
order to avoid recapture. First, the discharge of dredged or
fill material must not be “incidental to any activity having as
its purpose bringing an area of the navigable waters into a use
to which it was not previously subject.” Second, the activity
must not be one which may impair the flow or circulation of
navigable waters or which may reduce the reach of such waters.
See 40 CFR § 232.3.
In the instant case, this discussion of Section 404(f)
accepts arguendo Plaintiffs’ assertion that the entire Parker
Tract has remained wetlands 79 (i.e., the reach of the waters of
the United States was not reduced). However, assuming the area
was a wetlands, the initiation of the pine plantation on the site
has altered the flow and circulation of waters of the U. S. by
the cumulative effect of ditching , landclearing and bedding.
Therefore, the principal issue under Section 404(f)(2) is whether
Weyerhaeuser’s conversion of portions of the Parker Tract to pine
plantation brought the Tract “into a use to which it was not
previously subject.” Weyerhaeuser strongly contends that pine
plantations are simply a subset of silviculture and that since
silviculture was ongoing and the wetland/upland status was not
changed, there was no change in use. Plaintiffs contend equally
vigorously that, given the overall intent of Congress in enacting
“If there was a conversion to uplands, then the activities
would be recaptured and subject to the permitting requirements.
See discussion irifra .
26

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Section 404(f) to limit it to activities with minor impacts, the
phrase “use to which it was not previously subject” should
encompass any activity which impairs the functions of a wetland
in a more than minor way. In Plaintiffs’ view, a conversion from
a harvested mixed hardwood wetland forest to a pine pJarrcation
easily meets this test and therefore is not exempt.
For the reasons below, EPA does not believe that its
regulations intended to draw the distinctions necessary to
support Plaintiffs’ contention that Weyerhaeuser’s establishment
of pine plantation on the Parker Tract constitutes a new use.
Looking at the actual words of the regulation, including the
accompanying note, the better reading of 40 CFR § 232.3(b) is
that a change in use refers to broad changes, such as the
initiation of silviculture in an area not previously subject to
silviculture or initiation of agriculture in an area not
previously subject to agriculture or converting a wetland
silviculture operation to an upland silviculture operation.
The general legislative history does not compel Plaintiffs’
interpretation. Admittedly portions of it could be used to
support that interpretation. However, it is worth noting that
the statements cited by Plaintiffs from the legislative history
that only activities with minor impacts were to be exempted were
often ixmnediately followed by statements which paraphrase the
“use to which it was not previously subject” element of (f)(2) as
“converting more extensive areas of water into dry land.” 8 ° In
short, either interpretation of the statute has some support in
the legislative history. Given EPA’s long standing
interpretation, and the unfolding data on the pine plantation
9O5 e.g., 3 Leg. Hist 420 (Harsha), 474 (Muskie), and 485
(Stafford).
alIfl the context of silviculture in particular, the legislative
history reflects a debate over whether the exemptions were intended
to apply to clearcutting in eastern mixed hardwood forests. Senate
Report No. 95—370 accompanying S. 1529 stated that the term “normal
si].vicultural practice” did not include, for Eastern mixed hardwood
forests, clearcutting of timber, or harvesting associated with even
aged management of timber. 4 Leg. Hist. 710. The House conferee8
strongly disagreed, arguing that eastern mixed hardwood forests
were particularly well-suited to a variety of management practices,
including clearcutting,. and that “the interpretation of normal
silvicultural activities should not restrict or constrain the use
of a wide range of scientifically proven silvicultural practices.”
3 Leg. Hist. 350. Because the House conferees objected, the
Conference report did not retain the limiting language of the
Senate Report. This history indicates that activities associated
with even age—management in eastern forests were not intended
automatically to be excluded from the exemption.
27

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phenomenon in Southeastern wetlands, EPA believes that it would
be inappropriate to revisit its interpretation of Section
404(f)(2) in the context of this citizen suit.
Applying EPA’s regulation to the facts of this case. since
Weyerhaeuser’s establishment of pine plantations in its already
ongoing silviculture operation did not itself constitute a change
in use,a 2 those portions of Weyerhaeuser’s operation falling
within Section 404(f)(1) must be found to result in a conversion
of some wetlands to uplands on site in order to satisfy the ‘new
use” requirement of Section 404(f)(2). Since the premise of this
Section 404(f) discussion is that Weyerhaeuser’s ditching and
other activities did not convert the area to uplands, it follows
that the “new use” requirement is not satisfied, and therefore
that the activities satisfying Section 404(f)(1)(A) are not
recaptured under Section 404(f)(2) and therefore are exempt. (On
the other hand, if some or all of the Parker Tract were converted
to uplands by Weyerhaeuser’s post-1978 activities, then both
parts of (f)(2) would be satisfied and otherwise exempt
activities would be subject to permit requirements.)
CONCLUSION
Accepting arcuendo Plaintiffs’ assertion that the site
remained wetlands at all relevant times, EPA reviewed the
applicability of Section 404 to Weyerhaeuser’s activities on the
Parker Tract from 1978 forward. As explained above, EPA has
concluded that under the then applicable interpretations,
Weyerhaeuser’s landclearing activities would not have been
regulated and that Weyerhaeuser’s other activities on the Parker
Tract (with the possible exception of some field ditch
construction) would have fallen within Section 404(f)(1) and not
have been recaptured under Section 404(f)(2). If the site was
not wetlands at all relevant times, additional activities might
have been subject to regulation. However, given the
circumstances of this case, particularly the length of time that
has passed, the changing regulatory scheme and the changing
conditions of the site, EPA is exercising its prosecutorial
discretion not to take enforcement action for past actions.
° 2 Plaintiffs’ submission persists in referring to a conversion
from a “natural forested wetland” to a pine tree farm. This
implies, misleadingly, that the site was “natural” in the sense of
not being “used,” such that silviculture or tree farming would be
a new use; in fact, the record shows that the Parker tract had been
managed for silviculture and harvested regularly, and that the
“naturally” regenerating species had only shifted slightly from
species that are obligate hydrophytes to more facultative wet
species.
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Finally, EPA wishes to stress that under current regulations
and interpretations, landclearing to convert a mixed age, mixed
hardwood/pine swamp to a managed pine plantation would likely not
qualify as a de minimis discharge and would not meet the
definition of n]owing or other vempted activities, and therefore
would be regulated under the CWA. Conversely, landclearing as
part of a harvest/replanting cycle within an established/ongoing
pine plantation operation would likely qualify as a minimis
discharge.
LU 2
W. Ray inghaxn, D i± ector
Water M ement Divi’ ion
Region IV, U.S. Environmental
Protection Agency
‘EB 4 g94
Date
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CERTIFICATE OF SERVICE
I, Philip G. Mancusi-Ungaro, do hereby certify that on
February 7, 1994, a true and correct copy of the Environmental
Protection Agency’s (EPA’S) Remand Determination were served by
United States First Class Mail upon each of the individuals
listed below.
Derb S. Carter, Jr. Esq.
Southern Environmental Law Center
137 E. Franklin Street, Suite 404
Chapel Hill, North Carolina 27514
(919) 967-1450
John A.J. Ward, Esq.
Ward and Smith, P.A.
1001 College Court -
P.O Box 867
New Bern, North Carolina 28563-0867
(919) 633—1000
Date hilip GIJlancusi-Ungaro
Assistant Regional Counsel
U.S. Environmental Protection Agency
345 Courtland St., N.E.
Atlanta, GA 30365

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CLEAN WATER ACT SECTION 404(f) EXEMPTIONS
(1) Except as provided in paragraph (2) of this subsection, the discharge of dredge or
fill material -
(A) from normal farming, silviculture, and ranching activities such as plowing,
seeding, cultivating, minor drainage, harvesting for the production of food,
fiber, and forest products, or upland soil and water conservation practices;
(B) for the purpose of maintenance, including emergency reconstruction of
recently damaged parts, of currently serviceable structures such as dikes,
dams, levees, groins, riprap, breakwaters, causeways, and bridge
abutments or approaches, and transportation structures;
(C) for the purpose of construction or maintenance of farm or stock ponds or
irrigation ditches, or the maintenance of drainage ditches;
(D) for the purpose of construction of temporary sedimentation basins on a
construction site which does not include placement of fill material into the
navigable waters;
(E) for the purpose of construction or maintenance or farm roads or forest
roads, or temporary roads for moving mining equipment, where such roads
are constructed and maintained, in accordance with best management
practices, to assure that flow and circulation patterns and chemical and
biological characteristics of the navigable waters are not impaired, that the
reach of the navigable waters is not reduced, and that any adverse effect on
the aquatic environment will be otherwise minimized;
(F) resulting from any activity with respect to which a State has an approved
program under section 1288(b)(4) of this title which meets the
requirements of subparagraphs (B)and (C) of such section, is not
prohibited by or otherwise subject to regulation under this section or
section 1311(a) or 1342 of this title (except for effluent standards or
prohibitions under section 1317 of this title).
(2) Any discharge of dredged or fill material into the navigable waters
incidental to any activity having as its purpose bringing an area of the navigable
waters into a use to which it was not previously subject, where the flow or
circulation of navigable waters may be impaired or the reach of such waters be
reduced, shall be required to have a permit under this section.

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ll llPO T gkqo

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.
FACT SHEET
MEMORANDUM OF AGREEMENT
FOR WrI ’LAND DELINEATIONS ON AGRICULTURAL lANDS
Action
• The Departments of Agriculture, Army, Interior, and the EPA have entered Into
a new Memorandum of Agreement (MOA) which ensures that the Nation’s
farmers can rely on Soil Conservation Service (SCS) wetlands jurisdictional
detern n Dons on agnculteral lands for purposes of Section 404 of the Clean
Water Act (CWA) and the Conservation Title of the Food Security Act (FSA).
Background
• The U.S. Departments of Agricultere, Army, Interior, and the Environmental
Protection Agency (EPA) are committed to miuimi nig duplication and
inconsistencies between Food Security Act and Clean Water Act wetlands
programs and to ensuring that Federal wetlands programs are admiithtered in a
manner that minimizes the Impacts on affected landowners to the extent possible
consistent with the goals of protecting wetlands
• These principles are highlighted In the A&imiiiistration’s August 1993
comprehensive wetlands policy and in an August 1993 Interagency statement of
principles concerning federal wetlands programs on agricultural lands
Purpose
• The basic purpose of the MOA Is to have the Army Corps of Engineers (Corps)
and EPA aecept written SCS wetland determinations on agricultural lands as the
final government position on the extent of CWA jurIsdiction.
• Previously, SCS wetlands determinations were used for FSA purposes only. If
there were work in wetlands proposed that would require a CWA Section 404
permit, the Corps or EPA would make an additional wetlands determination for
CWA purposes
• SCS will have the federal lead for wetland delineations on agricultural Lands
whether or not the landowner/operator s a participant in Department of
Agriculture (USDA) programs SCS will make the wetland delineations
consistent with FSA procedures including consulting with the Fish and Wildlife
Service.
P d ?O r .1r
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Lands affected by the MOA
• For the purposes of the MOA, the term agrieultural land? means those Lands
intensively used and managed for the production of food or fiber to the tant
that the natural vegetation has been removed and cannot be used to determine
whether the area meets applicable hydrophytic vegetation criteria in m g a
-wetland delineation.
• Areas that meet this definition of agricultural lands may include intensively used
and managed cropland, ha 1and, pasture land, orchards, vineyards, and areas
which support wetland aeps.
• AgriculturaL land? do not include range lands, forest lands, wood lots, or tree
farms. Further, lands where the natural vegetation has not been removed, even
though that vegetation may be regularly grazed or mowed and collected as forage
or fodder are not considered agricultural lands for the purposes of the MOA.
Delineations on non-agncultural lands
• EPA and the Corps will accept SCS wetland delineations on tion-agricu]tural
Lands that occur as ali Inclusions within agricultural lands, and on lakes, ponds,
and streams that occur on agricultural lands.
• SCS will have the federal lead for wetland deilneations on non-agncultural lands
where the d lineation is requested by the landowner/operator who is a USDA
program participant SCS will give the Corps or EPA the opportunity to review
these delineations before making the delineation finaL
Quality assurance provisions
• The MOA includes provisions to enmre that agency personnel who conduct
wetland delineations are properly trained, that standard, agreed-upon methods
(i.e.. mapping conventions) are used in making such &ternm ticsis, and that the
Corps, EPA, and FWS have the ability to monitor SCS detenninations on a
programmatic basis.
2
S@d -P PC IB oin 3 -d1o-k 3 wUd ..: . 66:-9 — it’r

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Emphasis on field-level interagency coordination
• The MOA places a sfrong empha i on interagency coordination at the field level.
• At the state level, the agencie. must reach agreement on the mapping conventions
which SCS uses to delineate wetlands on agricultural Iands and regulaily review a
- samvle of.SCS.wethniieadoes
• The MOA also includes provisions to ensure that wetland delineations done by
SCS in the past are appropriate for CWA.
Use of SCS delineations done in the past
• The MOA also includes provisions to ensure that wetland delineations done by
SCS in the past are of appropriate quality for CWA use.
Update of SCS wetland delin a*k,ns
• SCS will update wetland delineations on a five-year cyele.
CWA Section 404 enfo ment permitting, and appeals
• Although, with this MOAP farmers can n rely on SCS wetland determinations
on agricultural lands for both the FSA and CWA programs, the CWA Section 404
permit program and Section 404 enforcement will continue to be administered by
the Corps and EPA.
• The MOA recognizes the SCS appeals process for wetland delineations.
Landowners for whom SCS makes wetland delineations for either Swampbuster or
Section 404 will be afforded the opportunity to appeal such delineations through
the SCS appeals proceas
Copies of the MOA may be obtained from EPA’S Wetlands Hotline at (800) 832-7828.
%v & ’\4_ C 1McAk
3
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tdQft1t3d-d9Q - - j 3 L1Cd. 81 r t’66 -9O-t1 f

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C. RELIANCE ON PREVIOUS SCS WErLAND DELINEATIONS FOR CWA
PURPOSES
Section 1222 of the FSA, as amended by the Food Agriculture
Conservation and Trade Act provides that SCS will certify SCS wetland
delineations made prior to November 28, 1990. The intent of this proceis
is to ensure the accuracy of wetland delineations conducted prior to
November 28, 1990, for the purposes of the FSA This certification
proceis also will provide a useful basis for est h1iahing reliance on wetland
delineations for CWA purposes. Afl certifications done after the effective
date of this MOA that are done using mapping conventions will use the
agreed-upon mapping conventions pursuant to Section V.A of this MOA.
2. Written SCS wetland delineations for lande identified in Section WA of
this MOA conducted prior to the effective date of this MOA will be used
for purposes of e ’sklishing CWA jurisdiction, subject to the provisions of
Section V.C.3 below. If such SCS wetland delineations are subsequently
modified or revised through updated certification, these modifications or
revisions will supersede the previous delineations fcc purposes of
establithing CWA jurisdiction. Written SCS auddtllneations for lands
identified in Sections IV.B and P /C of this MOA conducted prior to the
effective date of this MOA will require coordination with the Corps, or
EPA as appropriate, before being used for purposes of detei ntn4iig CWA
jurisdiction.
3. As part of the certification effort, SCS will establish priorities to certify
SCS wetland delineations. In addition to responding to requeste from
individual Landowners who feel their original wc’ 1 ” 1 detenitinations were
made in error, SCS will give priority to certifying those wetland
delineations where at least two of the four signatory agencies represented
on the interagency oversight team convened pursuant to Section V.B.2 of
this MOA apse that SCS wetland delineations in a particular area, or a
generic class of SCS wetland delineations in a particular area, rain. imuca
regarding their accuracy based on current guidance. These priority areas
will be Identified only after mapping conventions are agreed upon pursuant
to Stetion V.A of thin MOA. Identification of these high priority
certification neeth shafl be made at the level of the SCS State
Conservationist, FWS Regional Director, EPA Regional Administrator,
and the Corps Diattict Pngineer. Following identification of these high
priority certification neede, the SCS State Cona rvsti will immediately
notify the affected landowner(s), by letter, that the relevant SCS wetland
delineations have been identified as a high priority for being certified
under Section im of the FSA. In addition, the notification will inform
the landowner that while previous wetland delineations remain valid for
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purposes of the FSA until certification or certification update is completed,
the landowner will need to contact the Corps before proceeding with
di ha,ges of thedged or fill material This communication by the
landowner will enable the Corps to review the wetland delineation to
establish whether it can be u5cd for purposes of CWA jurisdiction. The
SCS State Cousexvatioát will initiate, withIn 30 calendar days of
landowner notification, corrective meanires to resolve the wetland
delineation accuracy problem.
D. APPEALS
Landowners for whom SCS makes wetland delineations for either Swampbustcr or
Section 404 will be afforded the opportunity to appeal such wetland lineations
through the SCS appeals proce . In clrciims* nces where an appeal is m de and
the State Conseivatlonist Is considering a change in the original delineation, the
State Conservationist will notify the Corps District Engineer and the EPA
Regional Administrator to provide the opportunity for their participation and
input on the appeal PWS also will be conmlted cosa nt with the requirements
of current regulations The Corps and EPA reserve the right cc a caae-by.casc
basis, to determine that a revised d Ineatlon resulting from p appeal ii not valid
for purposes of Section 404 jurisdiction.
E. TRAINING
1. SCS, in addition to PWS and EPA, will continue to pastleipsac in the
interagency wetland delineation training sponsored by the Corps, which is
based on the moss carrent manual used to delineate wetlands for purposes
of Section 404k Completion of this tr.n rng will be a prerequisite for field
staff of all signatory agencies who delineate wetlands on non-agricultural
lands using the 1987 Corps Wetland Delineation Manual.
2. The interagency wetland dlineatios ty inbig will address agency wetland
delineation responsibilities as defined by this MOA, Including SCS NFSAM
wetland delineation procedures
3. Field offices of the signatory age es are encouraged to provide
supplemental interagency wetland d”lineadcn training (i.e., in addition to
that required in paragraph W.E), as necessary, to prepare SCS field staff
for maldng Section 404 wetland delmeatiocs. For trnMiiig cc the use of
the 1987 COIpS Wetland Delineation Manual, such supplemental tr ’Pi g
will rely on the training materials used for the Corps d-lincadan training
program and will provide an equivalent level of instruction.
USDAIEPA1DOIIAmr MOA C .enni,g the D ru — Waio,Ja Page 9
for Clean Wor n AczISn#”s 4O and Ptw4 S.cw Aci/Sa B
S1 a ?g s 2POPI6 Cl LJ 11 3d-d1C- 3 tiC t- rt -‘3 3-t4ef

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v i DEP1N ONS
A. “Coordination” means that SCS will contact the Corps, or EPA as appropriate,
and provide an opportunity for revkw, cL nment, and approval of the findings of
SCS prior to making a final delineation. The Corps, or EPA as appropriate, will
review the proposed delineation and respond to SCS regarding its acceptability
for CWA Section 404 purposes within 43 day. ci receipt ci all neceseaiy
information. SCS will not imie a final delineation until agreement is reached
between SCS and the Corps or EPA, as appropriate.
B. “Consultation’ means that SCS, eoniitent with ourrent provisions of the FSA, will
provide FWS opportunity for full participation in the action being taken and for
timely review and c mment on the findings of SCS prior to a final wetland
delineation pursuant to the requirements ci the FSA.
C. A ‘wetland delineation” is any determination of the presence of wetlands and
their boundaries
D. A “special case” for the purposes of this MOA refers to those geographic areas or
wetland types where the Corps or EPA will make final CWA wetland
dalineatiolis.
E. ‘Signatoiy agencies” means the EPA and the Departments of Army (acting
through the Corps), Agrinilture (acting through SCS), and Interior (acting
through FWS).
F. ‘USDA program participant” means individual landownersfoperat eligible to
receive USDA program benefits covered under Title Xl i c i the Food Security Act
of 1985, as amended by the Food, Agriculture, Conservation and Trade Act of
1990.
VII. GENERAL
A. The policy and procedures contained within this MOA do not aeat. any rights,
either aubataudve or procedural, enforceable by any party regarding an
nMuy m t action brought by the United States Deviation or varianc, from the
admIn adve procedures included in this MOA will not constitute a defense for
violatots or others concerned with any Section 404 enforcement action.
B. Notbi in this MOA Is Intended to di,nin , modify, or otherwise affect
statutory or regulatory authorities of any of the t gn 4iiy ageiscilL AB formal
guidance Interpreting this MOA and background materials upon which this MOA
is based will be Issued jointly by the arnm.
USDAIE? 4JDOIL4rmy MOA Coec.ise, the LPdii. ic .u 4 WaJmi* P q 10
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Ltd 1O1
C. Nothing in this MOA will be conatnied as indicating a financial cnmmitment by
SCSI the Corps EPA, crFWS for the expenditure of funds except as authorized
in specific apprcpnations.
D. This MOA will take effect on the date of the last signature be1 and will
CODUDUC in effect until modified or revoked by agreement of all s%natory
agencies, or revoked by any of the signatory agencies alone upon 90 days written
notice. Modifications to this MOA may be made by mutual agreement and
Headquarters level approval by all the signatory agencies. Such modifications will
take effect upon signature of the modified do imcnt by all the signatory agencies.
E. The signatory agencies will refer d lineatlon reque s to the appropriate agency
pursuant to this MOA.
tant Secre or Natural
Resources and vironment
U.S. Department of Agriculture
A stant Seoreary for Fish and
Wildlife and Pam
U.S Department of the Interior
Assistant A’ 1 ’l ator for Water
U.S. Environmental Protection Agency
; aL LQ ;
: Edward Dickey
Acting Aitant Secretary of the
Army far a a Womb
U.S. Department of the Army
‘I
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MEMORANDUM OF AGREEMENT
AMONG THE DEPARTMENT OF AGRICULTURE, THE ENVIRONMENTAL
PROTECIION AGENCY, THE DEPARTMENT OF THE INTERIOR, AND THE
DEPAX1’1 Pff NT OF THE ARMY
CONCERNING THE DEUNEATION OF WETLANDS FOR
PURPOSES OF SECTION 404 OF THE CLEAN WATER ACT AND
SUBTITLE B OF THE FOOD SECURI’IY ACr
I. BACKGROUND
The Departments of the Army, Agriculture, and the Interior, and th .Environniental
Protecuon Agency (EPA) recognize fully that the protection of the Nstic&s remaining
wetlands is an important objective that will be supported throogh the implementation of
the Wetland Conservation (Swampbvster) provision of the Food Security Act (PSA) and
Section 404 of the Clean Water Act (CWA). The agencies further recognize and value
the important contribution of agricultural producers to cur society, cur economy, and
our environment. We are committed to ensuring that Federal wetlands programs are
administered in a manner that ivthiisni e the Imps tI cc affected landowners to the
fullest possible eatent consistent with the important goal of protecting wetlands. We arc
also committed to miniml2lng duplication and inconsistencies between Swamphuster and
the CWA Section 404 program . On August 24, I99 , the M ’i istratlon announced a
comprehensive package of reforms that will improve both the protection of wetlands and
make wetlands programs more fair and fIeml,le for landowoers, including the Nation’s
agriculture producezs This Memorandum of Agreement (MOA) implements one of
over 40 components of the Administration’s Wetlands Plan.
II. PURPOSE AND APPLICABILT!’Y
A. PURPOSE
The purpose of this MOA is to specify the manner in which wetland delineations
and certain other detei’nm taoas of waters of the United States made by the U.S.
Department of Agriculture (USDA) under the FSA will be relied upon for
purposes of CWA Section 404. While this MOA will promote consistency
between CWA and FSA wetlands programs, it is not intended in any way to
diminish the protection of these important aquatic rcemrces. In this regard, all
signatory agencies to this MOA will ensure that wetlands programs are
admiutsiered in a manner consistent with the objectives and requirements of
applicable laws, implementing regulations, and guidsa e.
oi- T 3f-J1C- 3 tifl 9
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B. APPLICABaZrY
1. The Administrator of EPA has the ultimate authority to determine the
geographie scope of waters of the United States subject to jurisdiction
under the CWA, Including the Section 404 regulatoly program. Consistent
with a current MOA between EPA and the Department of the Army, the
Army Corps of Engineers (Corps) conducta jurisdictional delineations
associated with the day-to-day administration of the Section 404 program.
2. The Secretazy of the USDA, acting through the Chief of the Soil
Conservation SeMce (SCS), has the ultimate authority to determine the
geographic soupe of wetland. for FSA purposes and to make delineations
relative to the FSA, in consultation with the Department of the Interior,
Fish and Wildlife Service (FWS).
UI. DEFINmON OF AGRICULTURAL LANDS
For the purposes of this MOA, the term ‘agricultural lands’ means those lands
intensively used and managed for the production of food or fiber to the extent that the
natural vegetation has been removed and cannot be used to determine whether the area
meets applicable hydroph)lic vegetation criteria in m king a wetland delineation.
A. Areas that meet the above definition may include intensively used and managed
cropland, bayland, pasture lan orchards, vineyard., and areas which nippon
wetland crop . (e.g., cranberries, tare, wstezcTeas, rice). For ampLe, lands
intensively used and managed for pasture or hayland where the natural vegetation
has been removed and replaced with planted grasses or legumes suck as iyegrass,
bluegrass or alfalfa, are considered agricultural land. for the purposes of this
MOA.
B. “Agricultural lands’ do not include range lands, forest lands, wood lots, or tree
farms. Further, lands where the natural vegetation has not been removed, even
though that vegetation may be regularly grazed or waned and collected as forage
or fodder (e.g., uncultivated meadows and prairies, salt hay), are not considered
agricultural lands for the purposes of this MOA.
Other definitions for the purposes of this MOA are listed below in Section VI.
IV. ALLOCATION OF RES NSIBIL1’IY
A. In accordance with the terms and procedures of this MOA, wetland delineations
made by SCS on agricultural lands, in coiiaultation with FWS, will be accepted by
EPA and the Corps for th. purposes of determining Section 404 wetland
jurisdiction. In addition, EPA and the Corps will w rpt SCS wetland delineations
USDA/EPA /DOI1 .4nw MOA Crase s 4 W.ii.sdi Pp 2
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on non-agricultural lands that are tither narrow bands hnmediately adjacent to or
small pockets interspersed among, agricultural lands. SCS is re ona1bLe for
making wetland delineations for agricultural lands whether or not the person who
owns, manages, or operates the land is a participant in USDA programs
B. Lands owned or operated by a USDA program participant that are not
agricultural lands and for which a USDA program participant requests a wetland
delineation, will be delineated by SCS in coordination with the Corps, or EPA as
appropriate, and in consultation with FY18. Final wetland delineations conducted
by SCS pursuant to the requirements of this paragraph shall not be
SCS esceot where an opportunitv for coordination and consultation is provided to
the other signatory agencies
C. SCS may conduct delineations of other waters for the purposes of Section 404 of
the CWA, such as lakes, ponds, and streams, in coordination with the Coips, or
EPA as appropriate, on lands on which SCS is otherwise engaged in wetland
deli tions pursuant to paragraphs WA or W.B of this MOA. Delin ations of
•other waters’ will not be made until the interagency oversight team convened
pursuant to Section V.B.2 has agreed on appropriate local procedures and
guidance for making such delineations -.
D. For agricultural lands , the signatory agencies will use the procedures for
delineating wetlands as described in the National Food Security Act Manual,
Thir&Eth an (NFSAM). Far areas that are not agricultural lands, SCS will use
the 1987 Corps Wetland Delineation Manual, with current national Corp.
guidance, to meke wetland delineations applicable to Section 404.
E. Delineations on ‘agricultural Lands must be performed by personnel who are
trained in the use of the NFSAM. Delineations on other lands and waters must
be performed by personnel who are trained in the use of the 1987 Corps Wetland
Delineation Manual This MOA includes provisions for the appropriate
interagency delineation training below in Section V.E.
F. In the spuit c i the agencies ocsnmftment to develop agreed upon methods for use
in making wetland delineations, subsequent revisions or amendments to the Corps
1987 manual or portions of the NPSAM affecting the wetland delineation
procedures upon which this agreement is based will require the concurrence of
the font signatory agencies.
G. A final written wetland delineation rnad by SCS pursuant to the terms of this
MOA will be adhered toby all the signatory agencies and will be effective for a
period of five years from the date the dclineation is made final , unless new
information warrants revision of the delineation before the aspiration date. Such
new information may include, for example, data on landscape changes caused by a
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major flood, jjandowner’s notification of intent to aban n agrj a1 use
and the return of wetland conditions on a prior converted cropland. In
accordance with Section 1222 of the FSA, SCS will update wetland delineations
on this flve.year cycle. Circumstances under which SCS wetland delineations
made prior to the effective date of this ageemcnt will be considered as final for
Section 404 purposes are addressed in Parapaph V.C.
H. Within the course of adm’fii.ternlg their Swampbuster responsibilities, SCS and
FWS Will provide landownerWoperators general written information (i.e.,
EPA/Corps fact sheets) regarding the CWA Section 404 program permit
requirements . general permits, and exemptions. The SCS and FWS will not.
however, provide opinions regarding the applicability of CWA Section 404 permit
requirements or exemptions.
[ DA will m,intain documentation of all final written SCS wetland delineations
, ( and record the appropriate label and boundaly infonuation on an official wetland
delineation map. USDA will make this information available to the slgaasozy
agen s upon request.
In pursuing enforcement activities, the rignatory agencies will rely upon
delineations made by the lead agency, as clarified below, providing a single
Federal delineation for potential violations of Section 404 or Swampbuster.
Nothing in this MOA will dimm&b 1 modify, or otherwise affect existing EPA and
Corps enforcement authorities under the CWA and clarified in the 1989
“EPA/Army MOA Concerning Federal Enfoseement for the Section 404 Program
of the Clean Water ACL EPA. the Carps, and SCS may gather information
based on site vints or other means to provide additional evidentiaxy support for a
wetland delineation which Is the subject of a potential or ongoing CWA Section
404 or Swampbuster enforcement action.
K. For those lands where SCS has not mid . a final written wetland delineation, and
where the Carps or EPA is pursuing a potential CWA violation, the load agency
for the CWA enfo 1 oement action will conduct a jurisdictional delineation for the
purposes of Section 404 and such delineations will be used by SCS for
detcrm iiing Swampbustcr jurisdiction and potential Swampbuster violations. For
those lands where the Corp. has not made a al written wetland delineation,
and whore SCS is purming a potential Swampbnster violation, SCS will make a
final written wetland dClineation consistent with Sections IV.A, IV.B, and NC of
this MOA and provide copies to the Corps and EPA. Such delineations will be
used by the Corps and EPA for the purpose of detennining potential violations of
the CWA In circum ancu in which either the Corps or EPA is pursuing a
potential CWA violation on land that is subject to an ongoing SCS appeaL a
wetland delineation will be conducted by the Corps or EPA in consultation with
S S and FWS.
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Jo, C1au Waa’ AcZlSrkw 404 ad Food 4cs/S’ v 3
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L. In making wetland delineations, the ayncaes recognize that dis harges of dredged
or fill material that are not authorized under SectIon 404 cannot eIi,nina* Section
404 jurisdiction, and that wetlands that were converted as a result of unauthorized
discharges remain subject to SectIon 404 regulation.
V PROCEDURES
Accurate and consistent wetland delineations are critical to the nacoese of this MOA.
For this reason, the signatoiy agencies will work cooperatively at the field level to:
1) achieve interagency concurrence on mapping conventions used by SCS for wetland
delineations on agricultural lands, 2) provide EPA and Corps programmatic review of
SCS delineations, and 3) certify wetland delineations in accordance with Section
1222(a)(2) of the PSA, as amended. The foll. ving sections describe the procedures that
will be followed to aL ca1npliab these objectives.
A. MAPPING CONVENTIONS
1. Each SCS State Conservationist will take the lead In convening
representatives of the Cesps, EPA, FWSI and SCS to obtain the written
concurrence of each of the signatory agencies, within 120 calendar days of
the effective date of this MOA, on a set of mapping conventions for use in
mafring wetland delineations- Only mapping conventions concurred upon
by all signatory agencies will be used by SCS for wetland delineations.
2. If interagency consensus on mapping conventions is not reached within 120
days of the date of thin MOAS the Stats Conservationist will refer
documentation of the unresolved issues to the Chief of SCS The Chief of
SCS will immediately forward copies of the State Conservationist’s
documentation of unresolved issues to the Corps Director of Civil Works
the EPA Director of the Office of Wetlands, Oceans, and Wateuheda and
the FWS Director. Immediately thereafter, the Chief of SCS or an
appropriate designee will lead necemary discussions to achieve interagency
concurrence on resolution of outstanding isuies, and will forward
documentation of the resolution to the State Conservationist and the
appropflaze Headquarters cthces of the signatory agencies.
3. Once Interagency concurrence on mapping conventions is obtained, such
mapping conventions will be used immediately In place of the earlier
mapping conventiom
4. Agreed-upon mapping conventions developed at the state level will be
documented and submitted, far each state, through the Chief of SCS to the
Headquarters of each of the signatory agencies. State4evel agreements
will be reviewed by the Headquarters of the signatory agencies for the
purpose of ensuring national cci ncy .
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fc, Ckeis Wau Aa/S.r*ii 401 .id Foad S. erW AdJS’ 8
ttd t’ IE II J-J —-

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B. DELINEATION PROCESS REVIEW AND OVERSIGHT
This MOA emph* wes the need to eniu’e consistency in the mat fl 5y in
which wetlands are identified for CWA and PSA purposes, and provides a
number of mechaninns to increase meaningful interagency coordination
and consultation in order 10 , the agencies to work towird meeting this
goal. In this regard the agencies believe it is critical that effoits for
achieving consistency be carefully monitored and evaluated. Consequently,
this MOA establishes a monitoring and review process that will be used to
provide for continuous improvement in the wetland delineation process
specified in this MOA.
2. EPA will lead the 4tatoiy agencies in establiohing interagency ov ght
____ at the stats level to conduct periodic review of wetland delineations
conducted under the provisions of this MOA. These reviews will include
delineations done by SCS puralant to Sections IV.A, 1V.B, and IV.C of
this MOA and delineations done by EPA or the Corps pursuant to Section
IVK. of this MOA. These reviews also will include changes to wetland
from the CSappeale process, as well al -
disa 4ing allocation at responsibility. These reviews will
occii i 4 nnm, on a quarterly basis for the flrsj year, on a semi-
annual basis for the second year. and annually thereafter. In addition, a
review will be initiated whenever one or more of the signatoiy agencies
believes a szgnffieant.lssue needs to be addressed. The purpose of each
review will be to evaluate the accuracy of an apprcpnate sample of
wetland delineations. When feasible, this will Include actual field
verifications of wetland delineations. Should the interagency oversight
team identify Issues regarding implementation of thin MOA or wetland
delineations conducted under the provisions of thin MOA, the team will
work to resolve those fames and reach apeesnent on any necessary
con ecdvc actions. Enchrcyj v , and any neccamry corrective action, will
be documented in a report to be dis nted to the signatory agencies
app riate field and Headquarters c oes.
3. In situations in which the interagency oversight team Identifies and reports
unresolved issues concerning wetland delineations conducted under the
provisions of this MOA, Including changes to wetland delineations resulting
from the SCS appeals process , she Headquarters o ces of the signatory
agencies will informauy review the ie and work to reach agreement on
ally nec siaiy corrective actions . This informal process notwithstanding,
the EPA Regional Adminitrator or the Corps District Engineer may, at
any time, propose to designate a geographic area as a “ special case.
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for C1e , W u AaIS.e s 404 d Food S o* .401S.bth& 8
td P PI I6 .j. 1 uj - WCd - i—flt f

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4. Smfl to the terms of the current Memorandum of Agreement between
the Department of the Army and the EPA Concerning the Determination
of the Geographic Jurisdiction of the Section 40 Program and the
Application of the Exemptions under Section 404(f) of the CWA, the EPA
Regional Adwt iiissrator or the Corps Disthct Engineer may propose to
• designate a geographic area, or a particular wetland type within a
designated geograpbit area, as a special case. A special case may be
designated only after the interagency oversight team (EPA. Corps, SCSI
and FWS) has reviewed the relevant imues and been unable to reach a
consensus on an appropriate resolution. Special cases will be designated
by an easily identifiable political or geographic subdivision, such as a
t vnsbip county, pariah, state, EPA Region, or Corps division or distic
and will be marked on maps or using same other clear format and
provided to the appropriate EPA, Corps, FWS, and SCS field offices.
Proposed designations of special cases will not be effective until approved
by EPA or Corps Headquarters, as appropriate.
5. Upon proposing a special case, the EPA Regional Admini*ator or Corps
District Engineer, as appropriate, will notify the appropriate SCS State
Conservationist in writing. FoUc ing notification of the proposed
designation, SCS will not make wetland delineations for the purposes of
CWA jurisdiction within the proposed special case far a period of 20
working days from the date of the notifration. SCS may proceed to make
wetland delineations for CWA purposes in the proposed special case after
the 20-day period if the SCS State Coniervaticuist has not been notified by
the EPA Regional Administrator or Corps District Engineer of approval of
the proposed special case designation by EPA Headquarters or the Corps
Director of Civil Works, as appropriate.
6. Following approval of the proposed special case, the Corps, or EPA as
appropriate, will make final CWA wetland delineations in the special case
area, rather than SCS. In addition, the referring field office (i.e., either
the EPA Regional AthI M atOT or Corps District P nginee ) will develop
draft guldan e relevant to the specific issues raised by the special case and
forward the draft guidance to ita Headquarters office. The Headquarters
office of the agency which designated the special case will develop final
guidance after consulting with the signatory agencies’ Headquarters offices.
EPA concarrence will be required for final guidance for any special case
de gnatcd by the CorpL Special c s reinaiii in effect until final guidance
is iemed by the Headquarters office of the agency which designated the
special case or the designation is withdrawn by the EPA Regional
Administrator or Corps District Engineer, as appropriate.
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:i 1i 3d—.J1C-- 3 I1C d £ . t t’€ .E - —‘i

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Assistant Secretaiy of Agriculture for Natural Resources and E vironment, James
R. Lyons, said, ‘Consistent with the Administration’s overall wetlands policy, this
agreement is good for fanners and for the environment. It s implifies the process of
identifying wetlands for farmers and will more emelently inform them of federal wetland
conservation programs. We look forward to working ciceely and cooperatively with the
other agencies to make this agreement work.’
Interior Assistant Secretary for Fish and Wildlife and Parks, George T. Frainpton,
Jr., said, ‘This agreement represents a common sense approach to aiImiii tering
wetlands programs affecting our Nation’s farmers. We are miimn4 mg duplication ci
effort and recognizing the relative expertise of the federal agendas, while improving the
accuracy and consistency of wetland determinations on agricultural lands. It’s good for
farmers and for wetlands.’
EPA Assistant Mmlnlatrator for Water, Robert Perciasepe, said, ‘This agreement
is based on one of the moSt important themes of this Administration’s environmental
program: interagency partnerships. Through interagency cooperation at the field level,
we will all be able to provide better service to farmers while more effectively ensuring
protection of the Nation’s critical wetlands resources.’
G. Edward Dickey, the Acting Assistant Secretary of the Army for Civil Works,
said, ‘The interagency agreement should result in an improvement In the accuracy of
wetland delineations on agricultural lands through the use c i standard methods and
better training.’
This agreement reflects the conimitment of the Administration to implement Wa
wetland policies through a coordinated process focused on eliminating inconsistencies
between agency policies, minm4 mg duplication of efforts, and the accurate delineation
of wetlands for use by all agencies.
Copies of the MOA may be obtained by calling the EPA Wetlands Hotline at
(800) 832-7828.
2
‘ Oftm9d-d1O--t 3 iic 9: t 6t-9 -41 f

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SOUTH CAROLINA
MEMORANDUM OF AGREEMENT
BETWEEN
USDA-NATURAL RESOURCES CONSERVATION SERVICE, AND
THE DEPARTMENT OF THE ARMY-CORPS OF ENGINEERS
CONCERNING THE DELINEATION OF WETLANDS
FOR
PURPOSES OF SECTION 404 OF THE CLEAN WATER ACT
AND SUBTITLE B OF THE FOOD SECURITY ACT
I. BACKGROUND
The U. S Army Corps of Engineers, Charleston District (Corps), and the U. S. Department of
Agriculture, Natural Resources Conservation Service in South Carolina (NRCS) recognize fully
that protection of the remaining wetlands in the State of South Carolina is an important objective
that will be supported through the implementation of the Wetland Conservation (Swampbuster)
provision of the Food Security Act (FSA) and Section 404 of the Clean Water Act (CWA). The
agencies further recognize and value the important contribution of agricultural producers to our
society, our economy, and our environment. We are committed to insuring that Federal wetlands
programs are administered in a manner that minimizes the impacts on affected landowners to the
fullest possible extent consistent with the important goal of protecting wetlands. We are also
committed to minimizing duplication and inconsistencies between Swampbuster and the CWA
Section 404 program.
II. PURPOSE AND APPLICABILITY
A. PURPOSE
The purpose of this MOA is to specify the manner in which wetland delineations and certain other
determinations of other Waters of the United States made by the Natural Resources Conservation
Service under the FSA will be relied upon for purposes of CWA Section 404. While this MOA
will promote consistency between CWA and FSA wetlands programs, it is not intended in any
way to diminish the protection of these important aquatic resources. In this regard, the signatory
agencies to this MOA will ensure that wetlands programs are administered in a manner consistent
with the objectives and requirements of applicable laws, implementing regulations, and guidance.
B. APPLICABILITY
1. The Administrator of EPA has the ultimate authority to determine the geographic scope of
waters of the United States subject to jurisdiction under the CWA, including the Section 404

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regulatory program Consistent with a current MOA between EPA and the Department of the
Army, the Army Corps of Engineers (Corps) conducts jurisdictional delineations associated with
the day-to-day administration of the Section 404 program
2. The Secretary of the USDA, acting through the Chief of the Natural Resources Conservation
Service (NRCS), has the ultimate authority to determine the geographic scope of wetlands for
FSA purposes and to make delineations relative to the FSA, in consultation with the Department
of the Interior, Fish and Wildlife Service (FWS).
Ill. DEFINITION OF AGRICULTURAL LANDS
For the purposes of this MOA, the term “agricultural lands” means those lands intensively used
and managed for the production of food or fiber to the extent that the natural vegetation has been
removed and cannot be used to determine whether the area meets applicable hydrophytic
vegetation criteria in making a wetland delineation.
A. Areas that meet the above definition may include intensively used and managed cropland,
hayland, pastureland, orchards, small nursery instead of small tree farms, such as Christmas trees
and ornamentals, vineyards, and areas which support wetland crops such as nce. For example,
lands intensively used and managed for pasture or hayland where the natural vegetation has been
removed and replaced with planted grasses or legumes such as ryegrass, bluegrass, or alfalfa, are
considered agricultural lands for the purposes of this MOA.
B. Agricultural lands do not include range lands, forest lands, wood lots, or tree farms. Further,
lands where the natural vegetation has not been removed, even though that vegetation may be
regularly grazed or mowed and collected as forage or fodder (e.g., uncultivated meadows and
praines, salt hay), are not considered agricultural lands for the purposes of this MOA. In
addition, container nurseries or lands that are intensively managed for turf, sod, or other
landscaping purposes, are not considered agriculture land unless the property has a history of
producing a commodity crop.
Other definitions for the purposes of this MOA are listed below in Section VI.
IV. ALLOCATION OF RESPONSIBILITY
A. In accordance with the terms and procedures of this MOA, wetland delineations made by
NRCS on agricultural lands, using FSA procedures,will be accepted by the Corps for the purposes
of determining Section 404 wetland jurisdiction. In addition, the Corps will accept NRCS wetland
delineations on non-agricultural lands, using CWA delineation procedures, that are either narrow
bands immediately adjacent to. or small pockets interspersed among agricultural lands, or wooded
areas that are located entirely within a farm tract. NRCS is responsible for making wetland
delineations for agncultural lands whether or not the person who owns, manages. or operates the
land is a participant in USDA programs.
B. NRCS may conduct delineations of other waters for the purposes of Section 404 of the CWA,

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such as lakes, ponds. and streams, in coordination with the Corps on lands of which NRCS is
otherwise engaged in wetland delineations. Coordination Consists of the submittal of a request for
a verification of a wetland delineation to the Corps of Engineers. Delineations of “other waters”
will not be made until the interagency oversight team has agreed on appropriate local procedures
and guidance for making such delineations.
C. For agricultural lands, the signatory agencies will use the procedures for delineating wetlands
as described in the National Food Security Act Manual, Third Edition (NFSAM). For areas that
are non-agricultural lands, NRCS will use the 1987 Corps Wetland Delineation Manual, with
current national Corps guidance, to make wetland delineations applicable to Section 404.
D. Delineations on “agricultural lands” must be performed by personnel who are certified in the
use of the NFSAM. Delineations on other lands and waters must be performed by personnel who
are certified in the use of the 1987 Corps Wetland Delineation Manual.
E. In the spirit of the agencies’ commitment to develop agreed-upon methods for use in making
wetland delineations, subsequent revisions or amendments to the Corps 1987 manual or portions
of the NFSAM affecting the wetland delineation procedures upon which this agreement is based
will require the concurrence of the signatory agencies.
F. A final written wetland delineation made by NRCS pursuant to the terms of this MOA will be
considered a final certified wetland delineation, and will remain in effect unless new information is
acquired indicating a change which would warrant a re-evaluation. Such new information may
include, for example. data on landscape changes caused by a major flood, or a landowner’s
notification of intent to abandon agricultural use and the return of wetland conditions on a prior
converted cropland in accordance with Section 1222 of the FSA.
G. Within the course of administering their Swampbuster responsibilities, NRCS will provide
landowners/operators general written information (i.e., EPA/Corps fact sheets) regarding the
CWA Section 404 program permit requirements, general permits, and exemptions The NRCS
and the FWS will not, however, provide opinions regarding the applicability of CWA Section 404
permit requirements or exemptions.
H. USDA will maintain documentation of all final wntten NRCS wetland delineations in the local
county offices and record the appropriate label and boundary information on an official wetland
delineation map. USDA will make this information available to the Corps upon request.
I. In pursuing enforcement activities, the signatory agencies will rely upon delineations made by
the lead agency, as clarified below, providing a single Federal delineation for potential violations
of Section 404 or Swampbuster. Nothing in this MOA will diminish, modify, or otherwise affect
existing EPA and Corps enforcement authorities under the CWA and clarified in the 1989
“EPA/Army MOA Concerning Federal Enforcement for the Section 404 Program of the Clean
Water Act.” EPA, the Corps, and NRCS may gather information based on site visits or other
means to provide additional evidentiary support for a wetland delineation which is the subject of a
potential or ongoing CWA Section 404 or Swampbuster enforcement action.

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For those lands where NRCS has not made a final written wetland delineation, and where
the Corps or EPA is pursuing a potential CWA violation, the lead agency for the CWA
enforcement action will conduct a jurisdictional delineation for the purposes of Section 404 and
such delineations will be used by NRCS for determining Swampbuster jurisdiction and potential
Swampbuster violations.
For those lands where the Corps has not made a final written wetland delineation, and
where NRCS is pursuing a potential Swampbuster violation. NRCS will make a final wntten
wetland delineation and provide copies to the Corps and EPA. Such delineations will be used by
the Corps and EPA for the purpose of determining potential violations of the CWA.
In circumstances in which either the Corps or EPA is pursuing a potential CWA violation
on land that is subject to an ongoing NRCS appeal, a wetland delineation will be conducted by the
Corps or EPA in consultation with NRCS.
J. In making wetland delineations, the agencies recognize that discharges of dredged or fill
material that are not authonzed under Section 404 cannot eliminate Section 404 jurisdiction, and
that wetlands that were converted as a result of unauthorized discharges remain subject to Section
404 regulation.
Where a potential Section 404 violation is being investigated on an agncultural or silvicultural
tract, which NRCS is likely to have a presence, the lead agency will contact NRCS for notification
purposes and to request any existing wetland determinations, or potential Swampbuster
investigations. In turn, NRCS will stop all technical assistance associated with the subject tract,
until, the investigation of the lead agency has been resolved.
V. PROCEDURES
Accurate and Consistent wetland delineations are critical to the success of this MOA. For this
reason, the signatory agencies will work cooperatively at the field level to: 1) achieve Interagency
concurrence on mapping conventions used by NRCS for wetland delineations on agricultural
lands, 2) provide EPA and Corps programmatic review of NRCS delineations, and 3) certify
wetland delineations in accordance with Section 1222(a)(2) of the FSA, as amended. The
following sections describe the procedures that will be followed to accomplish these objectives.
Scope of NRCS Determinations and/or Delineations
DETERMINATIONS AND/OR DELINEATIONS ON AGRICULTURAL LANDS
IF...
THEN...
A wetland determination and/or delineations needs to be made on agncultural lands
NRCS will use the NFSAM or 1987 COE Manual.
NRCS has not made a final written determination and/or delineations and the Corps or EPA is

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pursuing a potential CWA violation
The COE or EPA as appropriate makes the determination and/or delineation for CWA purposes
NRCS accepts this determination and/or delineation for Swampbuster purposes.
The COE or EPA is pursuing a potential CWA violation on land subject to an ongoing NRCS
appeal
The COE or EPA as appropnate makes the determination and/or delineation for both CWA and
Swampbuster in consultation with NRCS and FWS to amve at a single determination and/or
delineation. NRCS will use that determination and/or delineation to complete an appeal process.
In all other situations on agncultural land
NRCS makes the wetland determination and/or delineation. The COE or EPA accepts this
determination for CWA purposes.
Changes in a wetland determination and/or delineation on agncultural land is contemplated, as a
result of an appeal.
As per 519.1 4h, NRCS notifies the COE/EPA of current determination and/or delineation,
proposed determination, location, and reason for the change. The COEIEPA has 45 days to
respond on their concurrence or non-concurrence and whether the change can be used for CWA
purposes. If there is no agreement at the field office level, the NRCS representative shall refer the
matenals to the State Conservationist for action.
DETERMINATIONS AND/OR DELINEATIONS ON NON-AGRICULTURAL LANDS
IF...
THEN...
A wetland determination and/or delineation needs to be made on non- agricultural lands as a result
of a report of a potential violation, NRCS and the COE will make a joint determination using the
COE 1987 Wetland Delineation Manual to make determinations see 513.0 c.
On narrow bands either immediately adjacent to or small pockets interspersed among agncultural
lands, NRCS makes the determination for both Swampbuster and CWA using COE 1987 Wetland
Delineation Manual.
When a USDA participant requests a determination and/or delineation on non-agricultural land
NRCS makes the determination for both Swampbuster and CWA in coordination with the COE.
A determination and/or delineation is needed for “other waters”
If appropriate local procedures and guidance have been developed. NRCS makes the
determination for both Swampbuster and CWA in coordination with the COE or EPA. NRCS
only makes these determinations on an incidental basis when it is otherw se engaged in wetland
determinations for Swampbuster purposes.

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In all other situations
COE or EPA makes the determination for CWA NRCS will accept these determinations for
FSA.
A. DELINEATION PROCESS REVIEW AND OVERSIGHT
1. This MOA emphasizes the need to ensure consistency in the manner in which wetlands are
identified for CWA and FSA purposes, and provides a number of mechanisms to increase
meaningful interagency coordination and consultation in order for the agencies to work toward
meeting this goal. In this regard, the agencies believe it is critical that efforts for achieving
consistency be carefully monitored and evaluated. Consequently, this MOA establishes a
monitonng and review process that will be used to provide for continuous improvement in the
wetland delineation process specified in this MOA.
2. The signatory agencies will establish a State MOA Interagency Oversight Team to conduct
periodic review of wetland delineations conducted under the provisions of this MOA.
These reviews will include delineations done by NRCS and the Corps. These reviews also
will include changes to wetland delineations resulting from the NRCS appeals process, as well as
disagreements regarding allocation of responsibility.
These reviews will occur, at a minimum, on a semi-annual basis. In addition, a review will
be initiated whenever one of the signatory agencies believes a significant issue needs to be
addressed.
The purpose of each review will be to evaluate the accuracy of an appropn ate sample of
wetland delineations. When feasible, this will include actual field verifications of wetland
delineations.
Should the interagency oversight team identify issues regarding implementation of this
MOA or wetland delineations conducted under the provisions of this MOA, the team will work to
resolve those issues and reach agreement on any necessary corrective actions. Each review, and
any necessary corrective action, will be documented in a report to be distributed to the signatory
agencies.
B. APPEALS
Appeals will be addressed according to the established appeal procedures of each agency.
C. TRAINING AND CERTIFICATION
1. NRCS, will continue to participate in the interagency wetland delineation training sponsored
by the Corps, which is based on the most current manual used to delineate wetlands for purposes
of Section 404. Completion of this training will be a prerequisite for field staff of all signatory

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agencies who delineate wetlands on non-agricultural lands using the 1987 Corps Wetland
Delineation Manual
2 The interagency wetland delineation training will address agency wetland delineation
responsibilities as defined by this MOA, including NRCS NFSAM wetland delineation
procedures.
3 Field offices of the signatory agencies are encouraged to provide supplemental interagency
wetland delineation training as necessary, to prepare NRCS field staff for making Section 404
wetland delineations. For training on the use of the 1987 Corps Wetland Delineation Manual.
such supplemental training will rely on the training materials used for the Corps delineation
training program and will provide an equivalent level of instruction. This refresher type training
will be conducted periodically, at least on a biannual basis.
4. NRCS State Conservationist will maintain a list of ‘certified personnel” who have met
identified formal training and a satisfactory level of field expenence in wetland delineation.
VI. DEFINITIONS
A. “Coordination” means that NRCS will contact the Corps, where NRCS conducts a wetland
delineation on non-agricultural lands for USDA participants, and provide an opportunity for
review, comment, and approval of the findings of NRCS prior to making a final delineation. The
Corps will review the proposed delineation and respond to NRCS regarding its acceptability for
CWA Section 404 purposes within 30 days of receipt of all necessary information. NRCS will not
issue a final delineation until agreement is reached between NRCS and the Corps. NRCS will
forward a copy of all final determinations to the Corps for informational purposes.
B. A “wetland delineation” is any determination of the presence of wetlands and their boundaries.
C. “Signatory agencies” means the Departments of Army (acting through the Corps) and
Agriculture (acting through NRCS), the Environmental Protection Agency (EPA), the
Department of Interior (acting through the FWS).
D. “USDA program participant” means individual landowners/operators eligible to receive
USDA program benefits covered under Title XII of the Food Security Act of 1985, as amended
by the Food, Agriculture, Conservation and Trade Act of 1990
E. “Certified personnel” means NRCS personnel who have completed identified formal training in
the 1987 Corps of Engineers Wetland Delineation Manual and the National Food Security Act
Manual, Wetland Conservation Provision and have exhibited a satisfactory level of field
experience in wetland delineation.
VII. GENERAL
A. The policy and procedures contained within this MOA do not create any rights, either
substantive or procedural, enforceable by any party regarding an enforcement action brought by

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the United States Deviation or variance from the administrative procedures included in this MOA
will not constitute a defense for violators or others concerned with any Section 404 enforcement
action.
B. Nothing in this MOA is intended to diminish, modify, or otherwise affect statutory or
regulatory authorities of any of the signatory agencies. All formal guidance interpreting this MOA
and background matenals upon which this MOA is based will be issued jointly by the agencies.
C. Nothing in this MOA will be construed as indicating a financial commitment the signatory
agencies for the expenditure of funds except as authorized in specific appropriations.
D. This MOA will take effect on the date of the last signature below and will continue in effect
until modified or revoked by agreement of all signatory agencies, or revoked by any of the
signatory agencies alone upon 30 days written notice. Modifications to this MOA may be made
by mutual agreement and state level approval by the signatory agencies. Such modifications will
take effect upon signature of the modified document by all the signatory agencies.
E. The signatory agencies will refer delineation requests to the appropriate agency pursuant
to this MOA.
USDA - Natural Resources Conservation Service Date
Columbia, South Carolina
U.S. Army Corps of Engineers Date
Charleston, South Carolina

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FLORIDA WETLAND MAPPING CONVENTIONS AND PROCEDURES
(a) GENERAL INFORMATION
The information contained in this document is provided to assist Natural Resources Conservation
Service field offices in Florida in completing wetland determinations and delineations on
“agricultural lands”. Procedures are also provided to make wetland determinations on “non-
agricultural lands” when requested by a USDA program participant.
Wetland determinations and delineations for the 1985 Swampbuster provisions of the Food
Security Act (FSA), the 1990 Food and Agricultural Conservation Trade Act (FACTA), the 1996
Federal Agriculture Improvement and Reform Act (FAIRA) and Section 404 of the Clean Water
Act (CWA) shall be completed using these approved mapping conventions. Exceptions to this
are those areas that are designated as areas of”special concern” by the U. S. Army Corps of
Engineers and the Environmental Protection Agency. They will retain CWA delineation
responsibilities on these areas.
Mapping conventions are a set of accepted practices or procedures used to guide the wetland
delineator in making wetland determinations on agricultural lands. A field visit will be necessary
to verify that the determination is correct.
These mapping conventions were developed by the Natural Resources Conservation Service
(NRCS), the Corps of Engineers (COE), the Environmental Protection Agency (EPA), and the
Fish and Wildlife Service (FWS). They are to be used, along with other appropriate information
in the USDA National Food Security Act Manual (NFSAM) and the COE 1987 Wetland
Delineation Manual for the following activities:
1. To make wetland determinations/delineations on “agricultural lands”.
Preliminary wetland determinations may be made using off-site wetland mapping
conventions employing approved tools; however, all determinations/delineations must
be verified on-site.
2. To make wetland determinations/delineations on “non-agricultural” inclusions of
small pockets and narrow bands and other areas still predominately in native vegetation
when requested by USDA program participants. (See Wetland Determinations/
Delineations on “Non-Agricultural Lands”, p. 6).
Note: For a definition of delineation and determination, see DEFINITIONS , page 4.
Wetland determinations/delineations will be made on “non-agricultural lands” and JJ other
areas predominately in native vegetation using the Corps of Engineers 1987 Wetland Delineation
Manual. Only individuals who have been trained in the use of this manual may make
delineations on non-agricultural lands . When making wetland delineations on “non-agricultural
lands”, coordination with the COE/EPA is also required, unless the area meets the criteria of
“small pockets” or “narrow bands” of”non-agricultural lands” (See Wetland Determinations/
Delineations on “Non-Agricultural Lands, Page 6).
January, 1998 I

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Florida Mapping Conventions
NRCS will make wetland determinations on inclusions of “small pockets” and “narrow bands”,
using the 1987 Corps Manual. These determinations will be accepted by the COEIEPA without
coordination; however, periodic review of these determinations will be conducted under
provisions set forth in the interagency MOA.
NRCS, will also identify “Other Waters of the U.S.” for purposes of Section 404 of the Clean
Water Act (CWA), in coordination with the COE, on lands on which NRCS is otherwise engaged
in making wetland delineations and/or determinations (See Other Waters of the United States
under Mapping Conventions and Procedures, page 7).
Size of an area is not part of the wetlands criteria. Areas large enough to detect, when using the
off-site mapping tools in these conventions, will be determined. Wetland areas will be outlined
and labeled on the FSA photomap nd on appropriate field office base map with labels (i.e., W,
PC, etc.) specified in the National Food Security Act Manual (NFSAM). The preferred base map
is rectified ortho-based photography that will enable future digitization and provide a basis for
future updating. If this is not available, use soil survey or color infrared photos.
(b) DEFINITIONS
(1) Abandonment
Abandonment is the cessation of management on FW or FWP for five consecutive years and
does not refer to the drainage system or other type of hydrologic manipulation, such that:
• wetland criteria are met, and
• the area has not been enrolled in a conservation set-aside program; and
• the area has not been enrolled in a state or federal wetland restoration program other than perpetual
easements or the Wetland Reserve Program (WRP).
NOTE: Non-wetland (NW) which was wetland converted before 12/23/85 and not cropped
may also be abandoned, if the area meets wetland criteria.
CW, CW+year, and PC are n ..subject to abandonment (see PC mapping convention, p.
9-10). FW or FWP’s are not subject to abandonment if the person provides hydrologic
and vegetative baseline conditions prior to allowing the site to revert to wetland
conditions.
This definition of abandonment is applicable only for FSA activities; Clean Water Act
(CWA) regulations may describe different criteria for abandonment. Persons planning to
abandon areas should be notified to discuss this with the COE prior to proceeding.
(2) Agricultural Commodity
An “agricultural commodity” as defined in NFSAM means any crop produced by annual tilling
of the soil, including one-trip planters, or sugarcane.
2 January, 1998

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Florida Mapping Conventions
(3) Agricultural lands
Lands that are intensively used and managed for food and fiber production. Examples are
cropland, hayland and pastures, including native pastures, rangeland, including wooded
rangeland, orchards, vineyards, areas which support wetland crops (e.g., rice), ferneries, sod
farms, and small tree farms (where the trees are harvested whole, as in nurseries or Christmas
tree farms).
Areas which have recently been used for the production of food or fiber and which do not meet
abandonment criteria are considered agricultural lands, not withstanding the fact that natural
vegetation may occur on such lands
(4) Non-agricultural lands
Land that is not covered by the definition of agricultural land. Examples are forest land (where
the trees are grown for wood fiber and wood products) and urbanizing areas.
(5) Coordination
NRCS will contact the COE or EPA as appropriate, and provide an opportunity for review,
comment and approval of the findings of NRCS on all areas where the 1987 COE manual is used
to make the wetland determination (other than on narrow bands and inclusions within
agricultural land). The COE or EPA will review the proposed delineation and respond to NRCS
regarding its acceptability for CWA Section 404 purposes within 45 days of receipt of all
necessary information.
NRCS will not issue a final determination until agreement is reached between NRCS and
the COE or EPA, as appropriate. All coordination and/or consultation with FWS, EPA, or
COE should begin as soon as NRCS receives a request from a USDA participant.
(6) Consultation
Upon request, the Fish and Wildlife Service will provide technical assistance to NRCS for:
• regulations
• mitigation plans
• wetland identification procedures
• abandonment
• minimal effect determinations
• training
• wetland function and value assessment
(7) Certification
A certified wetland determination is a wetland determination of sufficient quality to make a
determination of ineligibility for program benefits, which was completed according to
delineation procedures agreed to by COE, EPA, FWS, and NRCS. All wetland determinations
made after July 3, 1996 will be done on a tract basis and will be certified. Determinations
will done upon client request (signed CPA-38) or as potential violations are investigated
(FSA-569).
January. 1998 3

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Florida Mapping Conventions
(8) Determinations
A determination is placing a label on a wetland that relates to the characteristics and use of the
wetland (i.e., PC, CW, W, FW, etc.). When delineated in accordance with NFSAM or COE
manual procedures and the determination is adequately documented, it may become a certified
determination.
Wetland determinations, once certified, will be valid for USDA Wetland Conservation provision
purposes as long as the area remains in agricultural use and no changes take place in the
operation. These determinations will be valid for CWA purposes as listed above, but only for a
period of five years from the date of certification.
Determinations are approximate wetland boundaries, indicating the presence of wetlands. The
following statement will be included with the NRCS-CPA-026E transmittal letter:
“This determination is an indication of approximate wetland boundaries, or that
wetland may be present within the area. Prior to any manipulation, which includes
alteration of hydrology and/or the removal of woody vegetation (stems and stumps),
or doing any soil disturbance, an on-site delineation of wetlands may be required.
Also, contact with the Corp of Engineers should be made to determine whether a
Section 404 permit is required.”
(9) Delineations :
A “wetland delineation” is establishing the boundaries of a wetland on the ground or a map.
Wetland delineations, once certified (See NFSAM, Part 514.52), will meet the requirements of
both Farm Bill and Clean Water Act (CWA) jurisdiction but are valid for CWA purposes for
only five years.
Wetland delineations on “non-agricultural lands” require an on-site delineation of wetland
boundaries using procedures contained in the COE 1987 Wetland Delineation Manual (training
in the use of this manual is required).
(10) Making Production Possible
Making production possible means:
• manipulation which allows or would allow production of an agricultural commodity where such
production was not previously possible, or
• making an area cropable more years than previously possible, or
• manipulation which reduces crop stress and allows increased crop yields, or
• manipulation after 11/28/90 that allows forage production or pasture and hayland use.
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Florida Mapping Conventions
(11) Manipulation
Manipulation is the alteration of hydrology and/or the removal of woody vegetation ( stems and
stumps), and includes any action which removes water from a wetland.
If, within the course of administering their responsibilities, NRCS personnel observe
wetland manipulation, they will immediately notify the COE office of the nature and
location of observed activity.
(12) ScopeAnd Effect
Scope and effect is the term used to refer to the documentation of site hydrology resulting from
original drainage (prior to December 23, 1985), or current site hydrology due to current drainage
capacity, and the expected site hydrology with any proposed new drainage or maintenance of
existing drainage facilities or structures. Scope and effect documentation will require a field
visit.
Documentation of the site hydrology with the original and with the current drainage system is
required:
• as part of the mthal determination for all FW and FWP labels;
• to respond to an AD-1026 for maintenance of an existing drainage system or installation of new
drainage systems;
• to respond to complamts; or
• during appeals.
Scope and effect documentation must consist of written records for each site. Tools used to
support scope and effect documentation may consist of interviews of landowners, operators,
contractors, neighbors, application of computer models, probing existing drains, aerial
photographs, satellite imagery, historical rainfall records, engineering analysis or hydrology, and
any combination of the tools. The important element is that written documentation of scope and
effect be developed and attached to the site records.
(13) Wetland Mapping Tools
The principle tools and methods to make wetland determinations are recent aerial photography,
NRCS soils maps, National Wetlands Inventory (NW!) maps, and color infrared photographs.
When these tools are not in agreement, an explanation of the discrepancy must be documented in
the case file.. Additional tools will be utilized when available. The use of these tools must take
into consideration periods of above and below normal precipitation. Canopy cover may mask
wetland signatures in woodland areas, or emergent hydrophytic vegetation may be
indistinguishable from upland herbaceous vegetation.
NW! maps give an overview of the wetlands in the area. All wetlands on the NW! map will be
considered wetlands for these conventions unless a review of other tools or the on-site visit
indicates otherwise. Reasons for non-wetland calls must be well documented.
NOTE: Many wetlands are excluded on NW! maps because of the Fish and Wildlife Service’s
practice of not mapping wetlands in agricultural crop fields.
January, 1998 5

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Florida Mapping Conventions
The tools available to conduct wetland inventories and determinations will vary between field
offices. It is imperative that the best and most complete data be used to make inventories and
individual determinations and delineations. In addition to the principle tools, examples of others
are:
• Farm Services Agency (FSA) color slides;
• USGS Topographic Maps;
• FSA cropping history records;
• Flood plain maps or mventories;
• Additional (older) aenal photos;
• Climatic data
• Prior knowledge from on-site visits;
• Engmcenng surveys of site on file.
(14) Wetland DeterminationslDelineations on “Agricultural Lands ”
To determine andior delineate wetlands on agricultural land, personnel must be trained in the use
of the NFSAM. Where the native vegetation has not been removed, the COE approved training
on the 1987 COE Wetland Delineation Manual must have been completed.
(15) Wetland Determinations/Delineations on “Non-Agricultural Lands ”
To determine and/or delineate wetlands on non-agricultural lands, including narrow bands
adjacent to or small pockets interspersed among agricultural land, personnel must be trained in
the use of the 1987 COE Wetland Delineation Manual.
NRCS will make wetland determinations and/or wetland delineations on narrow bands (200
feet wide or less) immediately adjacent to, or small pockets (5 acres or less in size) of non-
agricultural land (or agricultural land predominately in native vegetation) interspersed among,
agricultural lands. Delineations of small pockets and narrow bands will be made using
procedures in the COE 1987 Manual, and will be accepted by the COE and EPA without
coordination. However, periodic review of these delineations will be conducted under provisions
set forth in the interagency MOA.
NRCS, at the request of USDA program participants (via a signed CPA-38) may also make
determinations or delineations on areas of”non-agricultural lands” which do not meet the criteria
of small pockets or narrow bands above. Wetland delineations on these non-agricultural lands
require an on-site delineation of wetland boundaries using procedures contained in the COE 1987
Wetland Delineation Manual). Wetland delineations made on non-agricultural lands by NRCS
that do not meet the criteria of small pockets or narrow bands must be coordinated with the COE
or EPA. Requests by non-USDA program participants for determinations on non-agricultural
land should be referred to the COE.
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Florida Mapping Conventions
(16) Other Waters of the United States (OW )
NRCS will also identif ’ “Other Waters of the U.S.” for purposes of Section 404 of the Clean
Water Act (CWA), in coordination with the COE, on lands on which NRCS is otherwise engaged
in making wetland delineations and/or determinations.
NOTE: (For information regarding the definition and delineation of “Other Waters”, see
Exhibit No. 1)
“Other Waters” would include all of the following which are identified (Coded Blue) on USGS
topographic maps (1:24,000):
• Intermittent Streams
• Perennial Streams
• Lakes
• Ponds
• Rivers
• Man-made ditches
“Other Waters” will also include most areas with a Cowardin System label other than Palustrine
(e.g., Lacustrine, Riverine, Estuarine, etc.) on the NWI maps.
All areas which meet the above criteria would be labeled as “OW”.
NOTE: These exclude areas labeled as “AW”. Also note that not all “Other Waters”
will be marked in blue on USGS maps.
(c) MAPPING CONVENTIONS FOR SPECIFIC WETLAND TYPES
NOTE: These conventions must be used in conjunction with the appropriate sections in
NFSAM Part 514.
(I) NON-WETLAND ( NW
Definition: Non-wetland is land that under natural conditions does not meet wetland
criteria. Non-wetland also includes wetlands which were converted prior
to December 23 1985, to the extent that wetland criteria were not present,
but were never cropped.
Non-Wetland include areas that:
• under natural conditions never did and currently do not meet wetland criteria (sometimes called an upland), or
• were converted wetlands that did not meet wetland critena as of December 23, 1985, and
• were not cropped before 12/23/85, and
• wetland criteria has not returned, and
• the area has not been abandoned
January, 1998 7

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Florida Mapping Conventions
Procedures :
Step 1: Review the soil survey for hydric soils or inclusions of hydnc soils or other
wetness mapping symbols.
Step 2: Review soil survey, black and white and/or infrared aerial photography, and/or
FSA color slides, and NW! maps to determine the presence of a wetland signature
and, if and when the site was drained or manipulated or had the woody vegetation
removed.
Step 3: Determine cropping history with both FSA participants and non-program
participants. Determine from past photography or FSA records if site has been
abandoned.
Step 4: Use the appropriate hydrology tools to confirm that the site does not flood or pond
for at least 7 consecutive days or is not saturated for at least 14 consecutive days
during the growing season under average conditions (50% chance occurrence)
Step 5: Label site NW if applicable. Outline area on the FSA photograph and a suitable
base map, with documentation in the case file and enter appropriate field
information into FOCS.
(2) WETLANDS (W )
Definition: Wetlands that are labeled (W) are areas that meet wetland criteria under
natural conditions and have typically not been manipulated by altering
hydrology and/or removing woody vegetation. Wetland includes areas
that have been abandoned (see NFSAM 514.25).
Wetlands may be planted to produce an agricultural commodity under natural conditions after
December 23, 1985, so long as jj of the following requirements are met:
• production is made possible as a result of a natural condition, such as drought; and
• water regimes are not manipulated;
• woody vegetation is not removed; and
• normal tillage does not fill, level, or otherwise cause conversion of the wetland.
NOTE: Removal of herbaceous vegetation is not considered manipulation for Farm Bill
purposes; however, any soil disturbance in wetlands may require a Section 404
permit.
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Florida Mapping Conventions
Procedures :
Step 1: Review soil survey to confirm a hydric soil or inclusion hydric soil or other
wetness mapping symbols exists on site.
Step 2: Review soil survey maps, FSA compliance slides, USGS quad sheets, NW! maps,
black and white and/or infrared photography, weather service climatological data,
and appropriate hydrology tools to confirm that area is in natural vegetation and
that long term hydrological conditions are met for the site.
Step 3: Review 1985, 1990, and the present FSA slides if available, or other appropriate
methods, to check for a wetland manipulation or conversion.
Step 4: Label site W, if applicable. Outline area on the FSA photograph and a suitable
base map, with documentation in the case file and enter appropriate field
information into FOCS.
(3) PRIOR CONVERTED CROPLAND (PC )
Definition: Prior converted croplands are converted wetlands that were drained,
dredged, filled, leveled, or otherwise manipulated before December 23,
1985, for the purpose of, or to have the effect of, making the production of
an agricultural commodity possible, and an agricultural commodity was
produced at least once prior to December 23, 1985.
Prior converted croplands converted before December 23, 1985 are exempt from the 1985 Act
and CWA provisions. PC’s retain this label as long as they are in agricultural use.
To be considered prior converted cropland, the areas occurring on saturated, ponded, or flooded
hydric soils must meet ll of the following criteria:
• before December 23, 1985:
• an agricultural commodity was produced at least once
• were drained or otherwise had hydrology manipulation to make the production of an agricultural
commodity possible, and/or
• had woody vegetation removed and did not support woody vegetation as of 12123/85.
• the site remains in agricultural use
• does not flood or pond for 15 consecutive days during the growing season under average conditions
(50% chance of occurrence).
• as of December 23, 1985, the area did not meet.
• farmed wetland criteria
• farmed wetland pasture cntena; or
• wetland cntena
January, 1998 9

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Florida Mapping Conventions
NOTE: For Farm Bill purposes, PC’s may not be considered abandoned; however, for
CWA purposes, if the area is not managed for 5 years, such that wetland conditions
return, the COE may consider it abandoned.
FSA records may be used to determine if an agricultural commodity was produced prior to 1985.
In the absence of FSA records and for non-program participants, documentation of cropping
history should be based on aerial photography, crop expense or receipt records, or other suitable
documentation.
Procedures :
Step 1: Review the soil survey to confirm a hydric soil or inclusion hydric soil or other
wetness mapping symbol exists on site.
Step 2: Review soil survey, black and white and/or infrared aerial photography, and/or
FSA color slides, and NW! to determine the presence of a wetland signature and,
if and when the site was drained or manipulated or had the woody vegetation
removed.
Step 3: Determine cropping history with both FSA participants and non-program
participants.
Step 4: Use the appropriate hydrology tools to confirm that the site does not flood or pond
for 15 consecutive days during the growing season under average conditions (50%
chance occurrence).
Step 5: If no other wetland types are involved, PC may be placed on entire fields to avoid
outlining PC areas in detail, or PC and NW may both be placed in appropriate
areas in a field to show that field contains both pnor converted cropland and non-
wetland.
Step 6: Label the site PC if applicable. Outline area on the FSA photograph and a suitable
base map, with documentation in the case file and enter appropriate field
information into FOCS.
(4) FARMED WETLAND (F
Definition: Farmed wetlands are wetlands that were drained, dredged, filled, leveled or
otherwise manipulated before December 23, 1985, for the purpose of, or to have
the effect of, making the production of an agricultural commodity possible, and
continue to meet specific hydrology criteria.
To be considered farmed wetlands, the area must meet all of the following criteria:
• does not meet farmed wetland pasture cnteria
• the area is seasonally ponded or flooded for at least 15 consecutive days during the growing season, under
average conditions (50% chance of occurrence);
• production was not possible before the manipulation;
10 January, 1998

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Florida Mapping Conventions
• an agricultural commodity has been produced at least once, pnor to December 23, 1985, and
• the area has not been abandoned As long as the site remains in agncultural use, the site will not be
considered abandoned, if the baseline conditions are documented and the wetland conditions return as
part of an approved conservation plan.
FSA records may be used to determine if an agricultural commodity was produced. In the
absence of FSA records and for non-program participants, documentation of cropping history
should be based on aerial photography, crop expense or receipt records, or other suitable
documentation.
CAUTION: If the area has been altered after 12/23/85, it may meet the converted
wetland criteria.
Procedures :
Step 1: Review soil survey to confirm a hydric soil or inclusion hydric soil or other
wetness mapping symbols exists on site.
Step 2: Review soil survey, black and white and/or infrared aerial photography, and/or
FSA color slides, and NWI maps to determine if and when the site was drained or
manipulated or had the woody vegetation removed.
Step 3: Determine cropping history with both FSA participants and non-program
participants. Determine from past photography or FSA records if the site has been
abandoned, without the abandonment being part of an approved plan.
Step 4: Use the appropriate hydrology tools to confirm that the site is flooded or ponded
for 15 consecutive days during the growing season under average conditions (50%
chance occurrence)
Step 5: Review past and present FSA color slides and other aerial photography to
determine if site has been altered or manipulated since December 23, 1985,
beyond the scope and effect of original drainage, if the area has been altered,
check the converted wetland criteria.
Step 6: If the hydrology has been modified, document the scope and effect of existing
drainage systems or other hydrologic manipulations.
Step 7: Label site FW, if applicable. Outline area on the FSA photograph and a suitable
base map, with documentation in the case file and enter appropriate field
information into FOCS.
Farmed wetland (FW) label changes will be limited to technical errors, which will be corrected
according to the NIFSAM and with coordination with COE and EPA. Changes in label may also
be needed as a result of significant hydrological events that alter the landscape.
January, 1998

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Florida Mapping Conventions
(5) FARMED WETLAND PASTURE (FWP )
Definition: Farmed wetland pasture or hayland are wetlands that:
- were manipulated and used for pasture, or hayland (includes native pasture or
hayland)), prior to December 23, 1985, still meet wetland criteria and are not
abandoned, or
- are in agricultural use and met FWP criteria on 12/23/85.
Farmed wetland pasture meets the hydrology criteria for FWP if:
• it is inundated for at least 7 consecutive days during the growing season or,
• saturated for at least 14 consecutive days during the growing season.
Farmed wetland pasture is considered abandoned if pasture and/or hayland production ceases for
a five successive year period. As long as the site remains in agricultural use, the site will not be
considered abandoned, if the baseline conditions are documented and the wetland conditions
return as part of an approved conservation plan.
Farmed wetland pasture that has not been abandoned can be used as it was before December 23,
1985. If agricultural commodities were planted as a part of a previously established rotation, the
rotation can be continued (as long as woody vegetation is not removed), and the drainage or
other hydrologic manipulations can be maintained, but not improved beyond the original scope
and effect.
CAUTION: If the area has been altered since 12/23/85, it may meet the converted
wetland criteria.
Procedures :
Step 1: Review soil survey to confirm a hydric soil or inclusion hydric soil or other
wetness mapping symbols exists on site.
Step 2: Review soil survey, black and white and/or infrared aerial photography, and/or
FSA color slides, FSA records, and NWI maps to determine that the area was not
planted to a commodity crop from 1981 to 1985, and that the area has been used
for pasture or hay.
Step 3: Use the appropriate hydrology tools to confirm the site is inundated for 7
consecutive days or saturated for 14 consecutive days during the growing season
under average conditions (50% chance occurrence).
Step 4: Review FSA color slides and other aerial photographs to determine if the site has
been altered or manipulated since December 23, 1985, beyond the scope and
effect of original drainage. If the area has been altered, check the converted
wetland criteria.
Step 5: If hydrology has been modified, document the scope and effect of existing
drainage systems or other hydrologic manipulations.
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Florida Mapping Conventions
Step 6: Label site FWP, if applicable. Outline area on the FSA photograph and a suitable
base map, with documentation in the case file and enter appropriate field
information into FOCS.
Fanned wetland pasture (FWP) label changes will be limited to technical errors, which will be
corrected according to the NFSAM and with coordination with COE and EPA.
(6) CONVERTED WETLAND (CW or CW+Year )
Definition: Converted wetland is land that meets all of the following criteria:
• Was wetland, FW, or FWP, but
• after December 23, 1985, has been drained, dredged, filled, leveled, or otherwise
manipulated, including any activity that results in impairing or reducing the flow,
circulation, or reach of water, and/or
• woody vegetation, including stems and stumps, was removed, and
• the production of an agricultural commodity was made possible, or increased
production was made possible, such as:
(1) Making an area farmable in more years than it previously was, or
(2) Increasing yield because of reduced crop stress due to wetness.
When the Food Security Act was signed in 1985, it provided that persons shall be ineligible for
USDA benefits if an agricultural commodity is planted on wetland that was converted after
December 23, 1985. When FACTA was signed, additional restrictions were imposed for land
converted after November 28, 1990. For this reason, NRCS is required to determine whether a
wetland was converted before or after November 28, 1990. Conversions made after 11/28/90
will be labeled CW+YR. Conversions made prior to 11/28/90, but after 12/23/85 will be
labeled CW.
Converted wetlands can occur on naturally vegetated wetlands (W), farmed wetlands (FW), and
farmed wetland pasture (FWP). Wetland determinations for wetla ids and fanned wetland
pastures that have reverted to predominantly natural vegetation should be conducted using the
guidance in the 1987 COE manual. Determinations on farmed wetlands should use procedures in
the NFSAM.
Procedures :
Step 1: Review soil survey to confirm a hydric soil or inclusion hydric soil or other
wetness mapping symbols exists on site.
Step 2: Review soil survey, FSA compliance slides, USGS quad sheets, NW! maps, black
and white and/or infrared photography, weather service climatological data, and
January, 1998 13

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Florida Mapping Conventions
appropriate hydrology tools to confirm that the area was in natural vegetation and
that long term hydrological conditions were met for the site before the conversion
Step 3: Review 1985 to present FSA slides if available or other photography or other
appropriate methods (e.g., interviews, bills, receipts, tax records) to confirm when
the manipulation occurred.
Step 4: Label site CW or CW+Year, if applicable. Outline area on the FSA photograph
and a suitable base map, with documentation in the case file and enter appropriate
field information into FOCS.
(7) MANIPULATED WETLANDS (WX )
Definition: WX are wetlands that have been manipulated after December 23, 1985,
and the manipulation was not for the purpose of, and did not make
production of an agricultural commodity possible. Manipulated wetlands
may or may not meet wetland criteria depending on type and degree of
manipulation. These areas, by definition, are not capable of producing an
agricultural commodity. If a commodity is ever produced on the
manipulated wetland, or if production is later made possible, the area will
become a converted wetland (CW+Year).
WX also includes wetlands and abandoned wetlands through which
drainage systems have been manipulated, via a drainage maintenance
agreement for the purpose of maintaining the outlet for PC, FW, or FWP.
NOTE: If an area was previously labeled a CW because of manipulation after 12/23/85,
but production was not made possible, the CW label should be changed to WX.
NRCS personnel will notify the local COE office of the nature and location of
these manipulated wetlands, and will seek a decision as to whether the
activity violated the CWA. The person will be advised of the COE decision.
Procedures :
Step 1: Review soil survey to confirm a hydric soil or inclusion hydric soil or other
wetness mapping symbols exists on site.
Step 2: Review soil survey, FSA compliance slides, USGS quad sheets, NWI maps, black
and white and/or infrared photography, weather service climatological data, and
appropriate hydrology tools to confirm that the area was in natural vegetation, and
that wetland hydrology conditions existed on site.
Step 3: Document the scope and effect of existing drainage systems or other hydrologic
manipulations that have altered the wetlands.
Step 4: Label site WX, if applicable. Outline area on the FSA photograph and a suitable
base map, with documentation in the case file and enter appropriate field
information into FOCS.
14 January, 1998

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Florida Mapping Conventions
(8) ARTIFICIAL WETLAND (AW ’
Definition: Artificial wetland is land that was formerly non-wetland under natural conditions,
but now exhibits wetland characteristics because of human activities. These areas
are exempt from the FSA wetland provisions.
Cautions:
• Enhancement of the hydrology on areas meeting wetland criteria does not make such a wetland an
AW.
• Removal of enhanced hydrology is allowed as long as the natural wetland hydrology is not affected.
• A wet area created by irrigation or seepage from an imgation delivery system on an area that was
formerly non-wetland is considered an AW.
Impoundments and dugout ponds placed on undrained hydric soils, or in existing wetlands, will
remain wetlands (W) after construction. Those ponds constructed on non-wetlands will
constitute artificial wetlands (AW).
Artificial wetlands include wetlands created for purposes such as:
- livestock watering
- fish production
- irrigation
- rice production
- flood control
- recreation
- wildlife habitat
- gravel pits
- borrow pits
- other
Wetlands created by beaver activity are flQl artificial wetlands.
Artificial wetlands can be drained, removed or manipulated without causing ineligibility for
USDA benefits.
NOTE: Artificial wetlands as described above may not be exempt from provisions
of the CWA. Landowners will be notified in writing to contact the COE
prior to making any changes in these.
The label AWIW or AWIFW should be used for wetland determinations when no manipulation is
proposed, and where it is difficult to distinguish between irrigation induced or enhanced wetlands
and natural wetlands or farmed wetlands. A determination of the extent of W, FW, and AW
must be made at the time manipulation is proposed.
Procedures :
Step 1: Review soil survey for hydric soils or inclusions of hydric soils or other wetness
mapping symbols. Any part of the area containing these can not be AW.
January, 1998 15

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Florida Mapping Conventions
Step 2: Review FSA compliance slides, USGS quad sheets, NW! maps, black and white
and/or infrared photography, to determine if area was in fact created by human
activities. Document conclusions.
Step 3: Label site AW, if applicable. Outline area on the FSA photograph and a suitable
base map, with documentation in the case file and enter appropriate field
information into FOCS.
(9) OTHER FSA MAP SYMBOLS
All other FSA wetland mapping detenninations (e.g., CWNA, CWTE, MW, TP, etc.) will
require an on-site visit, and will follow procedures outlined in the NFSAM or in the 1987 COE
Wetlands Manual. NI (non-inventoried) can be used as wetland label when no activities that
would impact wetlands are planned within or adjacent to the area labeled NI. It is imperative that
the person understands the need for a detennination to be completed prior to altering or
manipulating these NI areas.
IMPORTANT POINTS TO KEEP IN MIND FOR ALL WETLAND
DETERMINATIONS :
• after July 3, 1996, determinations will be certified.
• require an on-site visit
• will follow procedures outlined in the NFSAM or in the 1987 COE Wetlands Manual
• will be entered in the FOCS resources inventory
• will be provided using the NRCS-CPA-026E process in FOCS
• require labels on the FSA photograph NOTE: Upland areas were not previously required
to be labeled as NW; however, all acres will now require a label.
16 January, 1998

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Florida Mapping Conventions
EXHIBIT NO. I
DELINEATION OF “OTHER WATERS” FOR THE PURPOSE OF SECTION 404
Pursuant to Section 404 of the Clean Water Act (Section 404), a Department of the Army permit
is required for any excavation of or discharge of excavated or fill material into “waters of the
United States”. The term “waters of the United States” includes the following:
a. All waters currently used, used in the past, or that may be used in the future for
interstate or foreign commerce, including all waters subject to the ebb and flow of the
tide;
b. All interstate waters including interstate wetlands;
c. All other waters such as intrastate lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds, the use, degradation or destruction of which could affect interstate
or foreign commerce.
Wetlands are defined in the Corps of Engineers’ (COE) regulations [ 33 CFR, 328.3(b)] as “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 vegetation
typically adapted for life in saturated soil conditions.
For the purposes of Section 404, the identification and delineation of wetlands is accomplished in
accordance with the 1987 Corps of Engineers Wetland Delineation Manual (87 Manual). The
jurisdictional limits, pursuant to Section 404, of all other (UNVEGETATED) waters is
determined by the upper limits of ordinary high water in non-tidal situations or high tide line
within tidal waters. Accordingly, the following provides general guidelines for the
determination of Section 404 jurisdiction within “other waters” which could likely be
encountered by Natural Resource Conservation Service (NRCS) personnel while
performing a wetland delineation/determination on agricultural or on USDA participants’
non-agricultural lands:
a. Perennial streams, intermittent streams, ephemeral streams and rivers:
jurisdiction normally extends to the ordinary high water mark in non-tidal
waterbodies or the high tide line within tidal waters. Within non-tidal streams or
rivers ( perennial = carries water 90% of the year or more in a well-defined
channel; intermittent = flows only during the wet season for a few months per
year, and appears dry during the remainder of the time, may or may not have a
well-defined channel; ephemeral = flows during and for short periods following
rain, and has no well-defined channel), the ordinary high water mark is defined by
January, 1998 17

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Florida Mapping Conventions
COE regulations as “that line on the shore established by the fluctuations of water
and indicated by characteristics such as:
• a clear, natural line impressed on the bank;
• shelving,
• changes in the character of soil;
• destruction of terrestrial vegetation;
• the presence of litter or debris; or
• other appropriate means that consider the characteristics of the surrounding
areas.
Utilizing these field indicators, the ordinary high water mark is normally
estimated to occur at the top of the bank of non-tidal streams and rivers.
The high tide line is defined in COE regulations as “the line of intersection of the
land with the water’s surface at the maximum height reached by a rising tide. The
high tide line may be determined in the absence of data by a line of oil or scum
along shore objects, a more or less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or characteristics, vegetation lines, tidal
gages, or other suitable means that delineate the general height reached by the
rising tide. The line encompasses spring high tides and other high tides that occur
with periodic frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the piling up of
water against a coast by strong winds such as those accompanying a hurricane or
other intense storm.”
In accordance with the above, the most precise method of determining the high tide
line on a particular property would be to utilize available tide gage data from the
nearest source to determine the anticipated elevation of the high tide on the
property in question, and establish this point on the project site based upon known
elevations of the property. In the absence of tide gage data, utilization of the field
indicators as mentioned above will, in most cases, provide a suitable estimate of
the high tide line for the purposes of Section 404.
b. Manmade lakes and ponds: when a lake or pond has been created by the
construction of a dam across a creek or river, jurisdiction pursuant to Section 404
will extend to the reach of ordinary high water along the shore of the waterbody.
The ordinary high water mark can be approximated by utilization of the field
indicators as discussed in the above section regarding non-tidal streams and rivers.
Be aware that a vegetated wetland fringe normally occurs along most
established ponds and lakes, especially in the upper reaches where primary
flows enter the waterbody. These wetlands are subject to CWA Section 404
permitting authority, and are delineated in accordance with the “87
Manual”.
18 January, 1998

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Florida Mapping Conventions
As opposed to construction of a dam, many ponds have been created through the
excavation of soil. For a pond which was originally excavated within
wetlands, the entire waterbody is jurisdictional, pursuant to Section 404, to
the ordinary high water mark. If the pond or pit in question was originally
excavated entirely within high ground and presently has no connection to other
waters or wetlands, it will usually not be considered jurisdictional. An important
exception occurs when the pond or pit has “naturalized with the establishment of
wetland vegetation and exhibits evidence of performing wetland functions. If the
pond or pit has naturalized, then Section 404 jurisdiction will extend to the
ordinary high water mark any vegetated wetlands which may be present. For
FSA purposes, these areas should be marked as artificial wetland (AW), but
the landowner will be notified in writing to contact the COE prior to altering these
areas.
c. Natural ponds or lakes: natural ponds or lakes exist on the landscape of Florida
primarily as permanently or seasonally ponded depressional areas. In other instances,
some resulted from the collapse of subterranean limestone caverns (sinkholes), from
oxbows of large rivers, and from man’s activities. Again, within UNVEGETATED areas
of the water body, Section 404 jurisdiction extends to the ordinary high water mark.
Wetlands along or within the water body are delineated in accordance with the “87
Manual”.
d. Beaverdams: beaverdams, in most cases are constructed across flowing streams.
When a beaverdam is present, Section 404 jurisdiction extends upstream of the dam to
the reach of ordinary high water. This elevation (ordinary high water mark) can be
approximated in the field using the indicators as described above for non-tidal waters.
It should be noted that the Corps of Engineers has the responsibility, subject to oversight by the
Environmental Protection Agency, for the delineation of all waters of the United States including
wetlands. Should a question occur at any time concerning the delineation of an unvegetated
water, the responsible Corps representative should be contacted for assistance and
guidance.
January, 1998 19

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SECTION 404 AND AGRICULTURE
INFORMATION PAPER
L GENERAL QUESFIONS CONCERNING SECI’ION 404 AND AGRICULTURE:
QUESTION: How have recent Corps actions such as the Federal Manual for
Identifying and Delineating Jwisdictional Wetlands (Interagency Manual) and the
EPA/Army Mitigation MOA effected the exernptions for normal farming activities found
in Section 404(f)?
ANSWER: Neither the Interagency Manual nor the February 6, 1990 Army/EPA
Mitigation MOA altered or diminished the Section 404(f) exemptions. in general, a
farmer can continue to farm his land, in the way he has in the past provided it is an
ongoing operation and he uses normal agricultural practices.
QUESTION: Does a farmer need a permit to continue to plow or plant a eId?
ANSWER. No. First, if an area is not waters of the U.S., Section 404 simply does not
apply in any manner and a permit is not required. If a water of the U.S. is involved
(e.g., wetlands), Section 404(1) exempts from the Section 404 program discharges
associated with normal farming and forestry activities such as plowing, cultivating ,
minor drainaa and harvesting, for the production of food, fiber, and forest products.
To be exempt, these activities must be part of an established, ongoing farming
operation.
QUESTION: Can a farmer change crops and still be exempt under Section 404(f)?
ANSWER: Yes. The planting of different agricultural crops as part of a normal or
established crop rotation (e.g., soybeans to rice or rice to crayfish) is exempt.
However, the discharge of dredged or fill material associated with the conversion of
an agricultural crop to catfish or other finfish is not exempt (this activity may be
covered by a general permit, see Appendix B).
QUESTION: Are activities that convert a wetland into farming or forestry for the first
time considered part of an established operation and therefore exempt?
ANSWER: No. For example, the conversion of a bottomiand hardwood wetland to
crop production is not an exempt activity.
Section 4O and Agnculture . InComiation Paper page I

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I
QUESTION: Is the resumption of agricultural production in areas laying fallow as part
of a normal crop rotational cycle considered to be part of an established operation that
would be exempt under Section 404(f)?
ANSWER Generally yes. However, if a wetland area has not been used for farming
for so long that it would require hydrological modifications or the clearing of wetland
vegetation in a manner that would result in a discharge of dredged or fill material, the
farming operation would no longer be established or ongoing.
QUESTION: How is plowing defined under Section 404(f)?
ANSWER: Plowing means all mechanical means of manipulating soil, including land
levelling, to prepare it for the planting of crops.
QUESTION: Are grading activities that change a water of the U.S. to dry land exempt
under Section 404(f)?
ANSWER: No. This includes land levelling which converts wetlands to uplands.
QUESTION: What could cause an otherwise normal farming activity to not comply
with one of the exemptions under Section 404(f)?
ANSWER: Discharges which contain toxic pollutants are not automatically exempt. In
addition, Section 404(f)(2) provides that discharges that change the use of the waters
of the U.S. reduce the reach, or impair the flow or circulation of waters of the U.S.
are exempt (the “recapture” provision).
QUESTION: Is the conversion of a farmed wetland (e.g. rice farm) to a non-
agricultural use “recaptured” under Section 404(f)(2)?
ANSWER Yes. The fact that an activity in wetlands is exempted as normal farming
practices does not authorize the filling of the wetland for other purposes such as the
construction on buildings which would require a Section 404 permit.
QUESTION: Are discharges that are not exempt automatically prohibited?
ANSWER: No. Inapplicability of a Section 404(f) exemption is not a prohibition; it only
necessitates regulatory approval under either an individual or a general permit.
Section 404 and Agnculture • Inrormaiic i Paper page 2

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II. STATISTICS VERIFY ThAT ThE CORPS HAS BEEN REASONABLE IN
ADMINIS1TRING ThE 404 PROGRAM.
o Approximately 15,000 permit applications are evaluated each year.
Approximately 9,500 permits are issued and only 500 denied (5%).
o For example, in the Corps Vicksburg District, since implementation of the
Interagency Manual on March 20, 1989, 28 permits have been issued for
catfish ponds in prior converted wetlands. No mitigation was required for
these permits. No permits have been denied. The breakdown by state
is:
STATE ISSUED ACRES PERMIrii D
Mississippi 17 3747
Louisiana 9 1242
Arkansas 2 350
o In the Vicksburg District, no permits involving agricultural a*ities of any
type have been denied in the past year.
IlL RECENT 404 INITIATIVES CONCERNING AGRICULTURL
o The Corps and EPA have provided clarification that discharges of
dredged or fill material associated with the construction of rice levees in
wetlands in established agricultural crop production are “normal farming
activities” within the meaning of Section 404(f)(1)(a), and are therefore
exempt from Section 404 regulation.
o The Corps and EPA have emphasized to agency field staff that the
Federal Manual for Identifying and Delineating Jurisdictional Wetlands
(Interagency Manual) states that while a site is effectively and legally
drained to the extent that it no longer meets the regulatory wetlands
hydrology criteria (as interpreted by the Interagency Manual), it is not a
wetland subject to jurisdiction under Section 404.
o In making wetlands determinations, agency field staff are required to
ensure that hydrology is not determined based solely on soil
characteristics in areas currently in agriculture. Areas in agriculture are
considered disturbed areas and indicators of all three wetland parameters
(i.e., hydrophytic vegetation, hydric soils, and wetlands hydrology) are
Section 404 and Agncultule Intormat ion Paper page 3

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evaluated utilizing the Ndisturbed area section of the Interagency Manual
(Sections 4.20 through 4.23). Therefore, the hydrology parameter is not
assun ed to exist based solely on soil characteristi in areas currently in
agriculture.
o The Corps has made progress toward the development of a general
permit authorizing discharges of dredged or fill material associated with
the construction of levees and ditches for the construction of ponds for
aquaculture, irrigation reservoirs and sewage lagoons. The Corps
expects to issue the general permit very soon (i.e., upon issuance of
required water quality certification from involved states).
o The Corps has initiated a technical review of the Interagency Manual with
the Environmental Protection Agency, the Soil Conservation Service, and
the Fish and Wildlife Service to determine what, if any, modifications are
necessary. As part of this review, we will be holding public meetings to
solicit technical comments on the Interagency Manual. The first meeting
is scheduled for May 5, 1990, in Baton Rouge, Louisiana.
o EPA and Army will be issuing a joint memorandum on the Section 404
program and agriculture.
Section 404 and AgTIcuIturc Information Paper page .1

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5

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Section 404 Field Investigation Report Form
Name of Inspector: _________________________________ Date: _______________ Time: ______
How Did the Site Come to Your Attention 9 (Include names and contact information for anyone who
reported the site):
Reason for Inspection: Suspected Unpermitted Discharge
Repeat Inspection for Verification of Elements of Violation
_____ Review of Compliance with AO, Cease and Desist Order, Consent Decree
______ Other: _____________________________________________________________
Landowner Name and Contact Info: __________________________________________________________
Contractor Name and Contact Info: __________________________________________________________
Any Other Possible Violators, Contact Info and Relationship to Site and Discharges:
Persons Present During Inspection. Affiliation and Phone Number: ________________________________
Statements by Persons (specify who) at Inspection Re: Purpose of Work and Reason for Failure to Obtain
Permit:
Site Location and Description
State: — County: ________ Nearest Town: _________ Lat/Long
Name of Water Body or Adjacent Water Body:
Description of Work Location and Aquatic Resources Impacted:
Describe Suiface Hydrologic Connections Between Work Area and Tributary System
®Attach Map Highlighting Approximate Location of Site

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Section 404 Field Investigation Report Form (page 2)
Description of Work
Narrative Description of Discharge Activity:
Purpose of Work, if known: ______________________________________________________
Approximate Area and Depth of Fill: ______________________________________________
Approximate Area of Impact (including hydrologic changes, area subject to change in use):
Size of Features such as ditches, spoil piles, culverts, linear feet of stream impact:
Approximate Start and End Dates. if known: _______________________________________
Apparent Composition of Fill: ________________________________________________
Erosion Controls/BMPs observed: _______________________________________________
What Equipment was Used for Work (specify license numbers and identifying marks, if any):
Was Work Occuring During Inspection? If yes, describe: ____________________________
Attach field sketch showing site layout and work, and location/orientation of attached photos
Attach photos, identify photographer and date of photos
Permit History
Prior Contacts/Permitting Activity with COE for this Project:
Evidence of Knowledge of Requirements:
Assumpion that Exemption or Nationwide Permit Applied”:

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Section 404 Field Investigation Report Form (page 3)
Jurisdiction/Wetland Determination/Delineation
Connections of water body to tributary system/navigable waters. _____________________
If applicable, evidence of ordinary high water mark (e.g, deposition of debris, water marks,
wrack lines, etc.) ____________________________________________________________
Category of stream(s) (e.g., perennial, intermittent):__________________________________
Dominant Vegetation
Trees:
Shrubs/Saplings:
Herbaceous/Grasses: _______________________________________________________
Other Notes Regarding Vegetation:
Soils
Survey Information ______________________________________________________
Field Data: _____________________________________________________________
Hydrology
Direct observations of hydrology (inundation or saturation, depth to water table):
Other indicators of hydrology:
Reference Site Observation (where applicable):
Attach held sketch showing data points, estimated boundaries of purusdiccion
® Attach ny data sheets

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Section 404 Field Investigation Report Form (page 4)
ADDITIONAL NOTES. _____________________________________

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6

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llllMPO W ff O L Sr

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MEMORANDUM OF AGREEMENT Between
The Department of the Army and
The En vi ron mental Protection Agency
Concerning
Federal Enforcement for the Section 404 Program of the Clean Water Act
1. PURPOSE AND SCOPE
The United States Department of the Army (Army) and the United States Environmental
Protection Agency (EPA) hereby establish policy and procedures pursuant to which they will
undertake federal enforcement of the dredged and fill material permit requirements (“Section 404
program”) of the Clean Water Act (CWA). The U.S Army Corps of Engineers (Corps) and
EPA have enforcement authorities for the Section 404 program, as specified in Sections 301(a),
308, 309, 404(n), and 404(s)of the CWA. In addition, the 1987 Amendments to the CWA (the
Water Quality Act of 1987) provide new administrative penalty authority under Section 309(g)
for violations of the Section 404 program. For purposes of effective administration of
these statutoiy authorities, this Memorandum of Agreement (MOA) sets forth an appropriate
allocation of enforcement responsibilities between EPA and the Corps The prime goal of the
MOA is to strengthen the Section 404 enforcement program by using the expertise. resources and
initiative of both agencies in a manner which is effective and efficient in achieving
the goals of the CWA.
II POLiCY
A. General.
It shall be the policy of the Army and EPA to maintain the integrity of the program through
federal enforcement of Section 404 requirements. The basic premise of this effort is to establish
a framework for effective Section 404 enforcement with very little overlap. EPA will conduct
initial on-site investigations when it is efficient with respect to available time, resources and/or
expenditures, and use its authorities as provided in this agreement. In the majority of enforcement
cases the Corps, because it has more field resources, will conduct initial investigations and use its
authorities as provided in this agreement. This will allow each agency to play a role in
enforcement which concentrates its resources in those areas for which its authorities and
expertise are best suited The Corps and EPA are encouraged to consult with each other on cases
involving novel or important legal issues and/or technical situations. Assistance from the U.S.
Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS) and other
fedeial. state, tribal and local agencies will be sought and accepted when appropriate.
B. Geographic Jurisdictional Determinations

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Geographic jurisdictional determinations for a specific case will he made by the investigating
agency. If asked for an oral decision, the investigator will caution that oral statements regarding
jurisdiction are not an official agency determination. Each agency will advise the other of any
problem trends that they become aware of through case by case determinations and Initiate
interagency discussions or other action to address the issue. (Note: Geographic jurisdictional
determinations for “special case’ situations and interpretation of Section 404(f) exemptions for
“special Section 404(f) matters” will be handled in accordance with the MOA on Geographical
Jurisdiction and Section 404(f) of the Section 404 Program.)
C. Violation Determinations.
The investigating agency shall be responsible for violation determinations, for example, the
need for a permit. Each agency will advise the other of any problem trends that they become
aware of through case by case determinations and initiate interagency discussions or other action
to address the issue.
D. Lead Enforcement Agency.
The Corps will act as the lead enforcement agency for all violations of Corps-issued permits.
The Corps will also act as the lead enforcement agency for unpermitted discharge violations
which do not meet the criteria for forwarding to EPA. as listed in Section lII.D. of this MOA.
EPA will act as the lead enforcement agency on all unpermitted discharge violations which meet
those criteria. The lead enforcement agency will complete the enforcement action once an
investigation has established that a violation exists. A lead enforcement agency decision with
regard to any issue in a particular case, including a decision that no enforcement action be taken,
is final for that case. This provision does not preclude the lead enforcement agency from refernng
the matter to the other agency under Sections III.D.2 and III.D.4 of this MOA.
E. Environmental Protection Measures.
It is the policy of both agencies to avoid permanent environmental harm caused by the
violator’s activities by requiring remedial actions or ordering removal and restoration. In those
cases where a complete remedy/removal is not appropriate, the violator may be required, in
addition to other legal remedies which are appropnate (e.g., payment of administrative penalties)
to provide compensatory mitigation to compensate for the harm caused by such illegal actions.
Such compensatory mitigation activities shall be placed as an enforceable requirement upon a
violator as authorized by law.
III. PROCEDURES
A. Flow chart
The attached flow chart provides an outline of the procedures EPA and the Corps will follow
in enforcement cases involving unpermitted discharges. The procedures in (B.), (C.), (D.), CE.)
and (F.) below are in a sequence in which they could occur. However, these procedures may be

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combined in an effort to expedite the enforcement process
B. investigation.
EPA, if it so requests and upon prior notification to the Corps. will be the investigating agency
for unpermitted activities occumng in specially defined geographic areas (e.g . a particular
wetland type, areas declared a “special case” within the meaning of the MOA on Geographical
Jurisdiction and Section 404(f) of the Section 404 Program). Timing of investigations will be
commensurate with agency resources and potential environmental damage To reduce the
potential for duplicative federal effort, each agency should verify prior to initiating an
investigation that the other agency does not intend or has not already begun an investigation of
the same reported violation. If a violation exists, a field investigation report will be prepared
which at a minimum provides a detailed description of the illegal activity, the existing
environmental setting, initial view on potential impacts and a recommendation on the need for
initial corrective measures. Both agencies agree that investigations must be conducted in a
professional, legal manner that will not prejudice future enforcement action on the case.
Investigation reports will be provided to the agency selected as the lead on the case.
C. immediate Enforcement Action.
The investigating or lead enforcement agency should inform the responsible parties of the
violation and inform them that all illegal activity should cease pending further federal action. A
notification letter or administrative order to that effect will be sent in the most expeditious
manner. If time allows, an order for initial corrective measures may be included with the
notification letter or administrative order. Also, if time allows, input from other federal, state,
tribal and local agencies will be considered when determining the need for such initial corrective
measures. In all cases the Corps will provide EPA a copy of its violation letters and EPA will
provide the Corps copies of its §308 letters and/or §309 administrative orders. These
communications will include language requesting the other agency’s views and recommendations
on the case. The violator will also be notified that the other agency has been contacted.
D. Lead Enforcement Agency Selection.
Using the following cntena, the investigating agency will determine which agency will
complete action on the enforcement case:
I. EPA will act as the lead enforcement agency when an unpermitted activity involves the
following:
a. Repeat Violator(s).
b. Flagrant Violation(s);
c. Where EPA requests a class of cases or a particular case: or
d. The Corps recommends that an EPA administrative penalty action may be warranted.

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2. The Corps will act as the lead enforcement agency in all other unpermitted cases not
identified in Part III D 1 .above. Where EPA notifies the Corps that. because of limited staff
resources or other reasons, it will not take action on a specific case, the Corps may take action
commensurate with resource availability
3 The Corps will act as the lead enforcement agency for Corps-issued permit condition
violations.
4. Where EPA requests the Corps to take action on a permit condition violation, this MOA
establishes a ‘right of first refusal” for the Corps. Where the Corps notifies EPA that, because of
limited staff resources or other reasons, it will not take an action on a permit condition violation
case, the EPA may take action commensurate with resource availability. However, a
determination by the Corps that the activity is in compliance with the permit will represent a
final enforcement decision for that case.
E. Enforcement Response.
The lead enforcement agency shall determine, based on its authority. the appropriate
enforcement response taking into consideration any views provided by the other agency An
appropriate enforcement response may include an administrative order. administrative penalty
complaint, a civil or criminal judicial referral or othei- appropnate formal enforcement response.
F. Resolution.
The lead enforcement agency shall make a final determination that a violation is resolved and
notify interested parties so that concurrent enforcement files within another agency can be closed.
In addition, the lead enforcement agency shall make arrangements for proper monitoring when
required for any remedy/removal, compensatory mitigation or other coiTective measures.
0. After-the-Fact Permits.
No after-the-fact (ATF) permit application shall be accepted until resolution has been reached
through an appropriate enforcement response as determined by the lead enforcement agency
(e.g., until all administrative, legal and/or corrective action has been completed, or a decision has
been made that no enforcement action is to be taken).
IV. RELATED MAUERS
A. Interagency Agreements.
The Army and EPA are encouraged to enter into interagency agreements with other federal,
state, tribal and local agencies which will provide assistance to the Corps and EPA in pursuit of
Section 404 enforcement activities For example, the preliminary enforcement site investigations
or post-case monitoring activities required to ensure compliance with any enforcement order can
be delegated to third parties (e.g., FWS) who agree to assist Corps/EPA in compliance efforts.

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However, only the Corps or EPA may make a violation determination andlor pursue an
appropriate enforcement response based upon information received from a third party.
B. Corps/EPA Field Agreements
Corps Division or District offices and their respective EPA Regional offices are encouraged to
enter into field level agreements to more specifically implement the provisions of this MOA.
C. Data Information Exchange
Data which would enhance either agency’s enforcement efforts should be exchanged between
the Cot-ps and EPA where available. At a minimum, each agency shall begin to develop a
computerized data list of persons receiving ATF permits or that have been subject to a Section
404 enforcement action subsequent to February 4, 1987 (enactment date of the 1987 Clean Water
Act Amendments) in order to provide histoncal compliance data on persons found to have
illegally discharged. Such information will help in an administrative penalty action to evaluate
the statutory factor concerning history of a violator and will help to determine whether pursuit of
a criminal action is appropriate.
V. GENERAL
A The procedures and responsibilities of each agency specified in this MOA may be delegated to
subordinates consistent with established agency procedures.
B The policy and procedures contained within this MOA do not create any rights, either
substantive or procedural. enforceable by any party regarding an enforcement action brought by
either agency or by the U.S. Deviation or variance from these MOA procedures will not
constitute a defense for violators or others concerned with any Section 404 enforcement action.
C. Nothing in this document is intended to diminish, modify or otherwise affect the statutory or
regulatory authorities of either agency. All formal guidance interpreting this MOA shall be issued
jointly.
D. This agreement shall take effect 60 days after the date of the last signature below and will
continue in effect for five years unless extended, modified or revoked by agreement of both
parties, or revoked by either party alone upon six months written notice, pnor to that time.
Robert W. Page
Assistant Secretary of the Army (Civil Works)
Rebecca W. Hanmer
Acting Assistant Administrator for Water
U.S. Envi ron mental Protection Agency

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7

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IIkIIO

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Southeastern Federal Wetlands Enforcement Conference
Atlanta, Georgia
February 11 - 12, 2003
Participants
Charles R. Allred
Environmental Specialist
Enforcement Section
U.S. Army Corps of Engineers
Vicksburg District
4155 Clay Street
Vicksburg, MS 39183
Telephone: 601-631-5546
e-mail: Charle.R.Allred@mvk02.usace.army.mil
Fax: 602-631-5459
Amy S. Babey
Biologist/Project Manager
CELRL-OP-FS
USACE Louisville District
P.O. Box 59
Louisville, KY 40201-0059
Telephone:502-3 15-6691 Phone
e-mail: Amy.S.Babey@LRLO2.usace.army.mil
Fax: 502-315-6677
Mellie M. Billingsley
Attorney
United States Army Corps of Engineers
4155 East Clay Street, Room 240
Vicksburg, MS 39183-3435
Telephone. 601-631-5078
e-mail: mellie rn.billlnEsley@mvk02.usace.mil
Fax: 601-631-5073
Trevor Black
Assistant Regional Counsel
U.S. Environmental Protection Agency
61 Forsyth St. SW
Atlanta, GA 30303-3104
Telephone: 404-562-9581
e-mail:black.trevor@epa.gov
Fax: 404-562-9486

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Dorothy L. Boardman
Assistant District Counsel
Jacksonville District
U.S. Army Corps of Engineers
P.O. Box 4970
Jacksonville, FL 32232-0019
Telephone: 904-232-1165
e-mail: dorothy.l.boardman@saj02.usace.army.mil
Fax: 904-232-3692
John Case
Chief, Western Section
U.S. Army Corps of Engineers
Regulatory Branch
3701 Bell Road
Nashville, TN 372 14-2660
Telephone: 615-369-7502
e-mail: iohn.i.case.ir@lrn02.usace.army.mil
Fax: 615-369-7501
R. Emery Clark
Assistant U.S. Attorney
1441 Main Street, Suite 500
Columbia, SC 29201
Telephone: 803-929-3085
e-mail: emery.clark@usdoi.gov
Fax: 803-252-2759
Randy Clark
Biologist
Memphis District
U.S. Army Corps of Engineers
Regulatory Branch
167 North Main Street, RM202
Memphis, TN 38103
Telephone: 901-544-0735
e-mail: James.R.Clark@mvm02.USACE.ARMY.MIL
Fax- 901-5440931
Charlie Crosby
Team Leader for Enforcement and Permit Compliance
U.S. Army Corps of Engineers
Charleston District
69A Hagood Avenue
Charleston, SC 204043
Telephone: 843-329-8026
e-mail: charles.crosby@sac.usace.army.mil
Fax: 843-329-2332

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Jack Dunphy
Biologist
Regulatory Division
Enforcement Branch
Jacksonville District
U.S. Army Corps of Engineers
P.O. Box 4970
Jacksonville, FL 32232-0019
Telephone: 904-232-1671
e-mail john.dunphy@saj02.usace.army.mil
Fax: 904-232-1784
Rhonda Evans
Life Scientist
Wetlands Section
United States Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9369
e-mail: evans.rhonda@epa.gov
Fax: 404-562-9343
Stephanie Fulton
Life Scientist
Wetlands Section
United States Environmental Protection Agency
61 Forsyth Street
Atlanta, GA 30303
404-562-9413
e-mail: fulton.stephanie@epa.gov
404-562-9224 (fax)
Ronald Gatlin
Chief, Regulatory Branch
U.S. Army Corps of Engineers
Regulatory Branch
3701 Bell Road
Nashville, TN 37214-2660
Telephone: 615-369-7515
e-mail: ronald.e gatlin @ lmO2.usace.arniy mil
Fax: 615-369-7501

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James D. Giattina
Director, Water Management Division
U.S. Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9322
e-mail: glattina.james@epa.gov
Fax: 404-562-9318
Don Hill
Chief, Environmental Assessment and Enforcement Branch
U.S. Army Corps of Engineers
Charleston District
69A Hagood Avenue
Charleston, SC 204043
Telephone: 843-329-8028
e-mail: Don.Hill@sac.usace.army.mil
Fax: 843-329-2332
Arthur G. Hosie, Jr.
Chief of Enforcement Section
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2282
Mobile, AL 36628
Telephone: 251-694-3781
e-mail: Arthur.G.Hosey.Jr. @ sam usace.army..... .
Fax: 251-690-2660
Cindy House-Pearson
Environmental Protection Specialist
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2282
Mobile, AL 36628
Telephone: 251-694-3188
e-mail:Cindy.J.House-Pearson@sam.usace.army.mil
Fax: 251-690-2660
Morgan Jackson
Environmental Protection Specialist
United States Environmental Protection Agency - Region 4
Wetlands Section
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9393
e-mail: iackson.morgan@epa.gov
Fax: 404-562-9343

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William L. James
Chief, Eastern Section
U.S. Army Corps of Engineers
Regulatory Branch
3701 Bell Road
Nashville, TN 37214-2660
Telephone: 615-369-7508
e-mail: Wilham.L.James@lrnO2.usace.army.mil>
Fax: 615-369-7501
Bob Johnson
Regulatory Program Manager
U.S. Army Corps of Engineers
South Atlantic Division
CESAD-CM-OR
60 Forsyth Street SW, Room 9M15
Atlanta, GA 30303
Telephone: 404-562-5137
e-mail: robert.w.iohnson@usace.army.mil
Fax: 404-562-5138
Edward B. Johnson, Jr.
Supervisory Engineer/Section Chief
U S. Army Corps of Engineers
Savannah District
Regulatory Branch, Northern Section
1590 Adamson Parkway, Suite 200
Morrow, Georgia 30260
Telephone: 678-422-2721
email: edward.b.johnson@saso2.usace.army.rnil
Fax: 678-422-2734
Haynes Johnson
Life Scientist
Wetlands Section
United States Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9407
e-mail: iohnson.haynes@epa.gov
Fax 404-562-9343

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Ken Jolly
Chief, Regulatory Division
Wilmington District
US Army Corps of Engineers
P.O. Box 1890
Wilmington, NC 28402
Telephone: 910-251-4630
e-mail: samuel.k.jolly@usace.army.mil
Fax: 910-251-4025
M. Lance Kidwell
Special Agent
Atlanta Fraud Resident Agency
1465 Hood Avenue, Building 838
Forest Park, GA 30297
Telephone: 404-469-5703
e-mail: Michael.Kidwell@forscom.army.mil
Fax: 404-469-5457
Robert Klepp
Attorney
U.S. Environmental Protection Agency
Mail Code - 2243A
Office of Regulatory Enforcement
1200 Pennsylvania Avenue N.W.
Washington, D.C. 20460
Telephone: 202-564-5805
e-mail: klepp.robert@epa.gov
Robert Lord
Wetlands Regulatory Program Manager
United States Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9408
e-mail: lord.bob@epa gov
Fax: 404-562-9343
Philip Mancusi-Ungaro
Attorney Advisor
United States Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9519
e-mail: mancusi-ungaro.philip@epa.gov
Fax: 404-562-9486

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Judy Marshall
Associate Regional Counsel
Office of Water Legal Support
Environmental Accountabihty Division
U.S. Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9533
e-mail: marshall.judy@epa.gov
Justin McCorcle
Assistant District Counsel
Wilmington District
U.S. Army Corps of Engineers
P0 Box 1890
Wilmington, NC 28402
Telephone: 910-251-4699
e-mail: justin.p.mccorcle@us.army.mil
Fax:910-251-4653
Martin F. McDermott
Trial Attorney
United States Department of Justice
Environment & Natural Resources Division
Environmental Defense Section
601 D Street, NW, Ste. 8000
Patrick Henry Building
Washington, DC 20004
Telephone: 202-514-2219
e-mail: martin.mcdermott@usdoj.gov
Fax: 202-514-2584
Ron Mikulak
Chief, Wetlands Regulatory Section
U.S. Environmental Protection Agency - Region 4
61 Forsyth Street S.W.
Atlanta, GA 30303
Telephone: 404-562-9233
e-mail: mikulak.ronald@epa.gov
Fax; 404-562-9343
Alan Miller
Project Manager
U.S. Army Corps of Engineers
1590 Adamson Parkway, Suite 200
Morrow, GA 30260
Telephone: 678-422-2729
e-mail: Alan Miller@sas02.usace.army.mil
Fax: 678-422-2734

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Gregory R. Miller
United States Attorney. Northern District of florida
111 North Adams Street, 4 th Floor
Tallahassee, FL 32301
Telephone: 850-942-8430
e-mail: Gregory.MilIer@usdoJ.go
Fax: 850-942-9577
Lauren Minto
Assistant District Counsel
U.S. Army Corps of Engineers
Louisville District
600 Dr. M.L. King Jr. Place
Louisville, KY 40207
Telephone: 502-315-6653
e-mail: Lauren.E.Minto@1r102.usace.army.mil
Fax: 502-315-6659
Pamela A. Moine
Civil and Appellate Chief
United States Attorney’s Office
Northern District of Florida
21 E. Garden St.
Pensacola, FL 32501
Telephone: 850-444-4000
e-mail: Pamela.Moine@usdoj.gov
Fax: 850-470-8452
Ken Mosley
Chief, Enforcement Section
Vicksburg District
U.S. Army Corps of Engineers
4155 Clay Street
Vicksburg, MS 39183
Telephone: 601-631-5284
e-mail: Ken.P.Mosley@mvk02.usace.army.mil
Fax: 601-631-5459
Ginger Mullins
Chief, Regulatory Branch
Huntington District
U.S. Army Corps of Engineers
502 Eighth Street
Huntington, WV 25701
Telephone: 304-529-5487
e-maiI Ginger.Mullins@LRHO.usace.army.mil
Fax: 304-529-5085

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Ralph F. Mumme
Wetlands - SEE
United States Environmental Protection Agency
61 Forsyth Street
Atlanta, GA 30303
Telephone: 404-562-9417
e-mail: Mumme.Ralph@epa.gov
Fax: 404-562-9343
Bryan Myers
Associate Regional Counsel
United States Environmental Protection Agency
61 Forsyth Street, SW
Sam Nunn Federal Center, 13th Floor
Atlanta, GA 30303
Telephone: 404-562-9603
e-mail: myers.bryan@epa.gov
Fax: 404-562-9486
Jason D. O’Kane
Biologist
U.S. Army Corps of Engineers, Regulatory
Savannah District
100 West Oglethorpe Avenue
Savannah, Georgia 31402
Telephone. 912-652-5964
e-mail: jason.d.okane@sas02.usace.army.mil
Fax: 912-652-5995
Lee Pelej
Wetlands Jurisdictional Expert
United States Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9396
e-mail: pelei.lee@e a. ov
Fax: 404-562-9343
Rebecca Rowden
Assistant District Counsel
Savannah District
US Army Corps of Engineers
P.O. Box 10201
Savannah, GA 31412
Telephone: 912-652-5123
e-mail: rebecca.a.rowden @sas02.usace.army.mil
Fax: 912-652-5126

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Stephen Samuels
Assistant Section Chief
Environmental Defense Section
United States Department of Justice
P.O. Box 23986
Washington, DC 20026-3986
Telephone: 202-514-3468
e-mail: Stephen.Samuels@usdoj.gov
Fax: 202-514-8865
Stuart L. Santos
Regulatory Program Manager
Regulatory Division
Jacksonville District
U.S. Army Corps of Engineers
P.O. Box 4970
Jacksonville, FL 32232-0019
Telephone: 904-232-2018
e-mail: stuart.l.santos@saj02.usace.army.mil
Fax: 904-232-1684
Bill Sapp
Associate Regional Counsel
U.S. Environmental Protection Agency
61 Forsyth Street SW
Atlanta GA 30303
Telephone: 404-562-9545
e-mail: sapp.bill@epa.gov
Fax: 404-562-9486
Paul Schwartz
Associate Regional Counsel
United States Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9576
e-mail: schwartz.paul@epa.gov
Fax: 404-562-9486
Robert V. Smyth, II
Assistant District Counsel
U.S. Army Corps of Engineers
P.O. Box 1070
Nashville, TN 37202-1070
Telephone: 615-736-5688
e-mail: robert.v.smyth.ll@lrnO2.usace.army.mil
Fax: 615-736-7075

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Eric P. Summa
Chief, Enforcement Branch
Jacksonville District
U.S. Army Corps of Engineers
P.O. Box 4970
Jacksonville, FL 32232-0019
Telephone: 904-232-1665
e-mail: eric.p.summa@sajO2.usace.army.mil
Fax: 904-232-1784
Gregory R. Tan
Associate Regional Counsel
U.S. Environmental Protection Agency - Region 4
61 Forsyth St., S.W.
Atlanta, GA 30303
Telephone: 404-562-9697
e-mail: tan.gregory@epa.gov
Fax: 404-562-9486
Mark A. Taylor
Supervisory Biologist
U.S. Army Corps of Engineers
502 8th Street
Huntington, WV 25701
Telephone: 304-529.5710
e-mail: Mark.A.Taylor@lrhOl.usace.army.mil
Fax. 304-529-5085
Jim Townsend
Chief, Regulatory Branch
Louisville District
U.S. Corps of Engineers
P.O. Box 59
Louisville, KY 40201
Telephone. 502-315-6675
e-mail. james m townsend@lrlO2 usace.army.mil
Fax: 502-315-6675
Tom Welborn
Chief, Wetlands, Coastal and Watersheds Branch
U.S. Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9354
e-mail: welborn.tom@epa.gov
Fax. 404-562-9343

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Gregg Williams
Biologist
Memphis Distnct
U.S. Army Corps of Engineers
Regulatory Branch
167 North Main Street, RM202
Memphis, TN 38103
Telephone: 901-544-3852
e-mail: Greg.W.Williams@mvm02.USACE.ARMY.MIL
fax- 901-0931
Bill D. Woodard
South Atlantic Division Counsel
U.S. Army Corps of Engineers
South Atlantic Division
AflN: CESAD-OC
60 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-5015
e-mail: Billy.D.Woodard@SADO1 . usace.army.mil
Fax: 404-562-5018
Kat Wright
Associate Regional Counsel
U.S. Environmental Protection Agency - Region 4
61 Forsyth Street SW
EAD-13th Floor
Atlanta, GA 30303
Telephone: 404-562-9574
e-mail: Wright.kathleen@epa.gov
Fax: 404-562-9486
Mike Wylie
Wetlands Enforcement Coordinator
Wetlands Section
United States Environmental Protection Agency - Region 4
61 Forsyth Street SW
Atlanta, GA 30303
Telephone: 404-562-9409
e-mail: wylie.mike@epa.gov
Fax: 404-562-9343

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Wetlands Enforcement 101
Introduction
T o the uninitiated, wetlands
enforcement can seem confusing.
A number of questions can, and often
do, arise while the Army Corps of
Engineers or the Environmental
Protection Agency pursues a potential
violator in an enforcement action.
Which agency is going to take the
lead? Can the agencies switch
enforcement responsibilities mid-
stream? Do the agencies need a war-
rant to inspect the violator’s property?
Will the action be administrative,
civil, criminal or all of the above?
What role will the Department of
Justice assume in the case? Will the
violator have to restore the disturbed
wetland? These questions and several
more are addressed in this article.
The article begins by explaining the
enforcement responsibilities of the
EPA and the Corps and then briefly
summarizes the enforcement tools
that each can employ in enforcement
cases. The article is not meant to be .‘
all-encompassing; instead it aims at
providing a basic introduction to the
wetlands enforcement regime
Corps and EPA Enforcement
Responsibilities
The Corps and EPA have overlap-
ping enforcement responsibilities for
protecting wetlands under the Clean
Water Act (CWA). 1 The two agen-
cies set forth their respective enforce-
ment duties in 1989 by entering into a
memorandum of agreement. 2 In
accordance with this MOA, the
Corps, with its extensive field
resources, conducts the majority of
initial investigations to identjfy viola-
tions. 3 Furthermore, the Corps is the
lead enforcement agency for viola-
tions of Corps permits and for certain
unpermitted discharges. The latter
category includes: i) violations that
do not involve repeat or flagrant vio-
lators, ii) cases where EPA has not
requested to be the lead enforcement
agency, and iii) violations that the
Corps has not yet referred to EPA. 4
EPA typically assumes the lead on all
other unpermitted discharges and in
special cases. “Special cases” are
wetlands violations that involve the
exemptions under section 404(f) of
the Clean Water Act for agriculture
and silviculture in addition to any-
thing EPA defines as a special case. 5
Even after an enforcement action
has commenced, the lead agency can
always refer an enforcement matter to
the other agency to take advantage of
that agency’s expertise and
resources. 6 For instance, the Corps
will refer cases involving ‘flagrant
violators” to the EPA for further pros-
ecution. Typically, the Corps and
EPA work well together realizing that
they have a common enforcement
mission to protect wetland resources.
The Wetlands Enforcement Toolkit
The enforcement tools available to
the agencies are several and are
designed to cover wetlands ‘iolations
both large and small. Whether these
tools do the job, however, depends in
large measure on the resources the
agencies have available at the time of
the action and on the continually
evolving body of wetlands l w.
For any given enforcement case,
the agencies have three basic options
at their disposal i) administrative
enforcement, ii) civil enforcement in
conjunction with the Department of
Justice; and iii) criminal enforcement
in conjunction with the Department of
Justice. It is not uncommon for
agency enforcement officials to apply
more than one of the options in a par-
ticular case. Thus, if you are
involved in a wetlands enforcement
case, it is important that you under-
stand not only the respective enforce-
ment responsibilities of each of the
agencies, but also each tool in the
wetlands enforcement toolkit.
A. Administrative Enforcement
Options
1. Information Requests
Both the Corps and EPA have broad
authority under Section 308 of the
CWA to collect information related to
any potential violation of Section 404.
This includes information about the
financial status of the violator, eco-
nomic benefit of the violation, the
existence of government contracts,
development plans, and the specifics
on the violation itself. 7 Corps and
EPA inspectors can also go on the
violator’s property as long as they do
so at reasonable times and have their
credentials in hand. Although it is not
required, the agencies often obtain
administrative warrants when viola-
tors refuse to allow entry.
2. Corps Cease and Desist Orders
and EPA Compliance Orders
Both the Corps and EPA can issue
orders demanding that violators cease
activities causing wetlands violations.
The Corps issues “cease and desist”
orders, 8 whereas EPA issues “compli-
ance” orders. 9 These orders typically
require removal of the illegal fill and
restoration of the damaged wetlands.
They also set the stage for further
enforcement actions by giving notice
to recipients of the violation and by
demanding compliance.’ 0
Typically, these administrative
orders lead to negotiations between
the violator and either the Corps or
EPA. If a settlement is reached, and
often times they are, the settlement is
embodied in an administrative order
on consent that can be entered by the
agency without assistance from the
Department of Justice or a Federal
Court. If a violator does not comply
with such an order, he or she may end
y William W. Sapp
dnited State’s Environmental Protection Agency
Fall 2003
6
Environmental Law Newsletter

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up in Federal District Court and can
be subject to a civil penalty of
$27,500 ’ per day in addition tojudi-
cial penalties for the underlying viola-
tions under Section 309(d) of the Act.
If the Corps or EPA, depending on
which agency issued the order, cannot
reach a settlement with the violator,
then the Agency may refer the case to
DOJ. DOJ will usually try to broker a
settlement. If this fails, DOJ will file
suit in Federal District Court.
It is important to understand that
violators cannot seek immediate judi-
cial review of cease and desist orders
or compliance orders. 12 The Corps
and EPA have been able to resist
defending these orders on grounds of
_pr a urity and lack of finality
because the CWA does not provide for
such judicial review.’ 3 Violators who
have sought judicial review of cease
and desist and compliance orders have
not prevailed.’ 4 Therefore, the viola-
tor who receives a cease and desist
order or compliance order has two
options: i) defy the order and wait for
the DOJ to prosecute, or ii) comply
with the order and enter into settle-
ment discussions with the Agency
involved to workout an acceptable
resolution. 15 In the large majority of
cases, the violators opt for the latter
option. One of the quickest ways for
a violator to end up in Federal District
Court with a DOJ wetlands attorney
seeking significant penalties, is to
ignore multiple cease and desist or
compliance orders.
3. After-the-Fact Permits
The Corps, as the permit issuing
agency, also has the option to process
“after-the-fact” permits for violators
who have either released unpermitted
discharges of dredged or fill material
or violated the conditions of a Corps
Section 404 permit. 16 Under certain
circumstances, after-the-fact permits
allow violators to leave unauthorized
discharges in waters of the United
States if they mitigate the impact of
these discharges. For example, if a
violator fills a wetland without a per-
mit and builds a house on top of this
fill before being discovered, the Corps
ment toolkit.
does not have to force the violator to
remove the fill and the house. Rather,
the Corps can issue an after-the-fact
permit, requiring the violator to pro-
vide compensatory wetlands mitiga-
tion for the damage caused.
The Corps can only issue an after-
the-fact permit if the lead enforcement
agency, which may be the EPA, is sat-
isfied thit an acceptable enforcement
result has been reached. Further-
more, after-the-fact permits are gener-
ally reserved for situations where it
appears that the fill would have satis-
fied the Section 404(b)( 1) Guidelines
and there’ was no wilfulness or recal-
citrance involved during the settle-
ment process.
To receive an after-the-fact permit,
violators must complete a permit
application similar to the application
for an initial wetlands permit. 17 The
Corps will reject after-the-fact permits
in three situations: i) if the violator,
after attempting to restore the site,
fails to “eliminate current and future
detrimental impacts to the satisfaction
of the district engineer”; ii) if legal
action is still pending; or iii) if a fed-
eral, state, or local authorization or
certification for the after-the-fact per-
mit has been denied. 18 If none of
these exceptions are present, then the
Corps processes after-the-fact pennits
in the same manner as a standard per-
mit application, by applying EPA’s
Section 404(b)(l) Guidelines 19 and by
determining whether the activity
would be contrary to the public inter-
est. 20 If the Corps denies an after-
the-fact permit, the violator must take
appropriate corrective action to
restore the site. 21
4. Penalty orders
In the 1987 amendments to the
CWA, Congress granted both the
Corps and EPA administrative penalty
authority, but limited the Corps’
authority to violations of permit con-
ditions and limitations. 22 In contrast,
EPA’s penalty order authority extends
to any violation of the CWA. 23
Section 309 of the CWA, the source
of both agencies’ administrative
penalty authority, 24 establishes two
classes of penalties. 25 Class I penal-
ties may not exceed $11,000 per vio-
lation or a total of $27,500 for multi-
ple violations. 26 Class II penalties,
which are directed at more egregious
violations, may neither exceed
$11,000 per day nor $137,500 in the
aggregate. 27
v’ The Corps has promulgated Class I
penalty procedures that allow a viola-
tor thirty days from the time of
receiving the penalty to request a
hearing. 28 The Corps notifies the
public of the penalty order and estab-
lishes a thirty-day comment period. 29
All hearings are informal and the vio-
lator may present evidence orally or
in writing. 30 Although another Corps
employee may act as the hearing offi-
cer, the District Engineer ultimately
determines the outcome of the case. 3 ’
If a violator does not prevail at a hear-
ing, his only recourse is to file suit in
Federal District Court. 32 The Corps
has not promulgated Class II penalty
procedures, and as a result does not
pursue Class II penalties. Instead it
refers cases that would warrant higher
penalties to the DOJ, or, in some
instances, to the EPA.
Both EPA Class I and Class II
penalty procedures include a hear-
ing. 33 Although the Class II penalty
hearings are subject to Section 554 of
the Administrative Procedures Act and
the Class I penalty hearings are not,
the two types of hearings are very
similar in practice. The only readily
See Wetlands on page 10
If you are involved in a wetlands enforcement case,
it is important that you understand not only the
respective enforcement responsibilities of each of the
agencies, but also each tool in the wetlands enforce-
Environmental Law Newsletter
7
Fall 2003

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Wetlands
Continued from page 7
apparent distinction is that the Class
II penalty hearings are conducted by
an administrative law judge and the
Class I penalty hearings are conduct-
ed by a regional judicial officer. 34
Both types of heanngs are similar to a
trial; however, the rules of evidence
are relaxed and hearsay is typically
allowed in.
Unlike cease and desist and compli-
ance orders, violators can seek judi-
cial review of penalty orders. 35 Few
violators have sought review and
fewer still have been successful. For
example, in Hanson v. United States,
the court upheld a $24,000 Class I
penalty in a
wetlands
enforcement
case. 36
Infrequently,
these penal-
ties are over-
turned. This
occurred in
Hoffman
Homes, Inc.
V.
Administrator, U.S. EPA, 37 where,
after a prolonged legal battle, a devel-
oper was able to persuade the Seven1
Circuit to vacate a Class II adminis-
trative penalty because the EPA could
not demonstrate to the Court’s satis-
faction that it had jurisdiction over the
.8 acre isolated wetland the developer
had filled. 38
One drawback of seeking an admin-
istrative penalty order is that the
agency pursuing it cannot seek the
restoration of the site. The penalty is
all that the agency can hope to obtain.
In many situations leavmg the site
unrestored is unacceptable and the
agency is forced to refer the case to
DOJ if a settlement cannot be reached
that includes restoration. It is for this
reason that the agencies will often
issue a cease and desist order or a
compliance order that requires
restoration in tandem with a penalty
order. If restoration is deemed neces-
sary, then the agency can enforce the
cease and desist or compliance order
with the help of DOJ. However, if an
agency moves forward with an
administrative penalty, and then fol-
lows later with a civil action to obtain
restoration, the agency cannot seek
both administrative and judicial
penalties for the same violation. 39
B. Civil Judicial Enforcement
As mentioned above, the Corps and
EPA can pursue violators through
civil judicial enforcement if the
administrative enforcement tools do
not bring the desired result or are sim-
ply inadequate to deal with the viola-
tions. In some cases a maximum
administrative fine of $137,500 is not
sufficient to get the attention of a fla-
- - grant vio-
lator. In
other
cases,
restoration
isan
imperative
and civil
judicial
enforce-
ment is
the only
vehicle to achieve that end. The
Corps often goes directly to the
appropnate local U.S. Attorney’s
office to seek assistance. 40 The EPA
typically refers its cases to the
Environmental Defense Section of
DOJ, which is located in Washington,
D.C. Once a case arnves in Federal
District Court, the court has the
authority under the CWA-to enjoin the
violator’s activities, order r storation
and assess fines of up to $27,500 per
day per violation. 4 ’ Generally, a new
violation occurs for every day in
which an illegal fill remains on a
site. 42 Thus, penalties for wetlands
violations in Federal District Court
can be substantial. Also, the “contin-
uing-violation” approach allows
courts to grant injunctive relief even
in cases in which a fill has been in
place a significant amount of time. 43
In such cases, effectively, there is no
statute of limitations.
In calculating civil penalties, courts
often determine, as they should, the
appropriate penalty amount by calcu-
lating the maximum penalty and then
using the factors contained in Section
309(d) of the CWA to determine
whether a reduction is warranted.
The penalty factors are
i) “the seriousness of the
violation or violations,”
ii) “the economic benefit
(if any) resulting from the violations,”
iii) “any history of such
violations,”
iv) “any good-faith efforts
to comply with the applicable require-
ments,”
v) “the economic impact of
the penalty on the violator,” and
vi) “such other matters as
justice may require.” 45
By starting at the maximum penalty
permissible, courts make it less likely
that the environment is short-changed
in the penalty calculations. When
civil penalties will not provide the
deterrence necessary, the agencies,
with the help of DOJ, can bring crimi-
nal charges against violators, as is dis-
cussed below.
C. Criminal Enforcement
The 1987 amendments to the CWA
strengthened the criminal enforcement
provisions in the Act; now any person
who negligently or knowingly vio-
lates the CWA can be prosecuted
cruninally. 46 Such violations can lead
to large fines and lengthy prison sen-
tences. 47
Criminal enforcement is usually
reserved for “egregious conduct, such
as significant environmental harm,
abusive conduct, continued illegal
conduct after warnings, and in cases
involving other serious, knowing, and
willful violations.” 48 For example,
DOJ prosecuted an individual who
ignored i) several Corps warnings, ii)
a Corps cease and desist order, and
iii) a court-ordered temporary
restraining order, all of which directed
him to stop filling a wetland he
owned. 49 The infamous Mr. Pozgai
Criminal enforcement is usually
reserved for “egregious conduct,
such as significant environmental
harm, abusive conduct, continued
illegal conduct after warnings, and
in cases involving other serious,
knowing, and willful violations.”
Fall 2003
10
Environmental Law Newsletter

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was convicted and sentenced to three
years in jail, given five years proba-
tion and a $200,000 fine, and ordered
to restore the wetland. 50
in United States v. Ode Mills and
Carey Mills, 51 a man and his son
were sentenced to twenty-one months
in jail and one year of probation for
illegally filling a wetland. 52 Just
recently a Montana man was sen-
tenced to 33 months in jail because he
violated the terms of his probation
that he received from filling in wet-
lands near his residence. 53 And even
more recently the Sixth Circuit Court
of Appeals reinstated a criminal con-
viction in U.S. v. Rapanos. 54 On
resentencing, the violator could face a
10 to 16 month pnson term based on
the offense level selected by the Sixth
Circuit.
Although these high profile cases
serve to deter people from filling wet-
lands illegally, they are often distorted
by the press and can inflame opposi-
tion to the wetlands program. 55
Furthermore, when a case is pursued
criminally the stakes are raised on
issues such as wetlands jurisdiction.
Thus, before the Corps or EPA
decides to opt for a criminal action,
the agencies weigh the pros and cons
of doing so quite carefully. If a viola-
tor sees jail time as a result of a wet-
land violation, he undoubtedly
deserved it.
Citizen Lawsuits
The CWA authorizes citizens to
pursue violators directly under
Section 505.56 Because citizen suits
are supplemental to federal actions,
citizen plaintiffs must give notice to
the alleged violator and government
officials at least sixty days prior to fil-
ing a complaint. 57 These actions can-
not proceed unless government offi-
cials decide not to pursue the enforce-
ment action. 58 These “pnvate attor-
ney general” suits are supposed to be
aimed at protecting the environment
rather than furthering private inter-
ests. Fortunately, in most cases they
are. In such cases, the federal gov-
ernment may intervene or submit ami-
cus briefs if important general
enforcement issues arise.
Conclusion
Although many of the enforcement
authorities and options available to
the EPA and Corps are set forth in the
CWA and its implementing regula-
tions, the agencies continue to adapt
their use to the shifting landscape of
wetlands law. Factors such as how
post-S WANCC cases are decided can
weigh heavily on the future direction
of wetlands enforcement actions, as
can cases such as United States v.
Phillips, which demonstrates that fed-
eral judges are still willing to hand
out substantial prison sentences to
wetlands violators. Like the wetlands
that they protect, wetlands enforce-
ment authorities are designed to
respond to the ebb and flow of the
legal and political tides and to be as
effective as possible regardless of the
enforcemeht climate. o
About the Author
Bill Sapp is the lead wetlands
attorney for Region 4 of the
Environmental Protection Agency.
He previously worked in the Army
Corps of Engineers, Office of the
Chief Counsel, as well as practic-
ing with the law firm of Aiston &
Bird LLP.
Any opinions expressed in this arti-
cle are solely those of the author and
should not be attributed to the
Environmental Protection Agency or
any other government agency
discussed in the article.
Endnotes
1. The Corps and EPA have
enforcement authorities for the
Federal Wetlands Regulatory Program
in accordance with CWA § 301(a),
308, 309, 404(n), 404(s), 33 U.S.C.
§ 1311(a), 1318, 1319, 1344(n),
1344(s).
2. Memorandum of Agreement
Between the Department of the Army
and the Environmental Protection
Agency, Concerning Federal
Enforcement for the Section 404
Program of the Clean Water Act (Jan.
19, 1989).
3. Id. at I1.A.
4. Id. at hID.
5. Id. at ll.D.
6. Id. at hI.D.
7. 33 U.S.C. § 1318.
8. 33 U.S.C. § 1344(s).
9. 33 U.S.C. § l319(a)(3).
10. Margaret Strand, Federal
Wetlands Law: Part II, 23 Envtl. L.
Rep. (Envtl. L. Inst.) 10,284, 10,299
..(May 1995).
11. Under the Federal Civil
Penalties Adjustment Act of 1990, all
administrative and judicial penalty
amounts are increased by 10 percent
for all violations that occur after
January 30, 1997. See 40 C.F.R. §
309(d).
12. Strand supra note 10 at 10,301.
13. Id. at 10,301.
14. Id. (citing Southern Pines Ass’n
v. United States, 912 F.2d 713 (4th
Cir. 1990) (no pre-enforcement
review of compliance order);
Hoffman Group, Inc. v. U.S.
Environmental Protection Agency,
902 F.2d 567 (7th Cir. 1990) (same);
McCiown v. United States, 747 F.
Supp. 539 (E.D. Mo. 1990) (no
review of Corps cease and desist
order); and Fiscella & Fiscella v.
United States, 717 F. Supp. 1143
(E.D. Va. 1989) (same)).
15 A few notorious wetlands viola-
Environmental Law Newsletter
11
Fall 2003

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30. Id. § 326.6(g).
46. 33 U.S.C. § 1319(c)(1)-(3).
tors who have chosen to defy these
orders have landed in jail as a result.
See, e.g., United States v. Pozgai, No.
88-00450 (E.D. Pa. 1988), aff’d 897
F.2d 524 (3d Cir. 1990), cert. denied,
498 U.S. 812 (1990); United States v.
Ocie Mills and Carey Mills, No. 88-
03 100 (ND. Fla. 1989), aff’d 904
F.2d 713 (11th Cir. 1990).
16. 33 C.F.R. § 326.3(e).
17. See id.
18. Id. § 326.3(e)(1).
19. The 404(b)(1) Guidelines pro-
yide the substantive criteria that the
Corps must apply in determining
whether a wetlands permit should be
issued. 40 C.F.R. § 230.
20. 33 C.F.R. § 320.4(a).
21. Id. § 326.3(e)(2).
22. 33 U.S.C. § 1319(g)(I)(B); see
also 33 C.F.R. § 326.6(b).
23. 33 U.S.C. § 1319(g)(1)(A).
24. The Corps also derives penalt
authonty from section 404(s) of the
CWA, but it is more limited than the
authority provided under section 309;
consequently, the Corps exercises its
section 309 authority when it issues
penalty orders. 33 U.S.C. §
1 344(s)(4), 131 9(g)(1)(B).
25. 33 U.S.C. § 13 19(g).
26. 33 U.S.C. 1319(g)(l)(B); supra
note 11.
27. 33 U.S.C. § 13l9(g)(2)(B);
supra note 11.
28. 33 C.F.R. § 326.6(b)(2)(v).
29. Id. § 326.6(b)(2)(viii)(3).
31. Id. § 326.6(j)(5).
32. Id. § 326.6(l)(2).
33. 40 C.F.R. § 22.21 & 22.50(b).
34.40 C.F.R. § 22.21 & 22.51.
35. 33 U.S.C. § l319(g)(8)(A), (B).
36.7lOF.Supp. 1105, 1108(E.D.
Tex. 1989).
37. 999 F.2d 256 (7th Cir. 1993).
38. Id. at 262.
39. 33 U.S.C. § 13 19(g).
40. Strand, supra note 10, at 10,249.
41. 33 U.S.C. § 1319(b)&(d).
42. Strand, supra note 10, at 10,302
(citing United States v. Cumberland
Farms of Conn., Inc., 647 F. Supp.
1166,1183 (D. Mass. 1986), aff’d
826 F.2d 1151 (l t Cir. 1987), cert.
denied, 484 U.S. 1061 (1988); United
States v. Tull, 615 F. Supp. 610, 626
(E.D. Va. 1983), aff’d 769 F.2d 182
(4th Cir. 1985), rev’d on other
grounds, 481 U.S. 412 (1987); United
States v. Ciampitti, 669 F. Supp. 684
(D.N.J. 1987)). . *
43. See, e.g., U.S. v. Banks, 115
F.3d 916,920(11th Cir. 1997).
44. United States v. Marine Shale
Processors, 81 F.3d 1329, 1337 (5th
Cir. 1996), citing Atlantic States
Legal Foundation, Inc. v. Tyson
Foods, Inc., 897 F.2d 1128, 1142
(llthCir. 1990).
45. 33 U.S.C. § 13 19(d).
47. Id. The highest penalties are
reserved for violators who have
knowingly placed others in “imminent
danger of death or serious bodily
injury.” Id.
48. Strand, supra note 10, at 10,304.
49. United States v. Pozgai, 757 F.
Supp. 21, 22 (E.D. Pa. 1991), aff’d
897 F.2d 524 (3d Cir.), cert. denied,
111 U.S. 48 (1990).
50. Id. The fme was later reduced
io3 (i0. David Salvesen, Wetlands:
Mitigating and Regulating
Developments’ Impacts, 2d Ed., 44,
45 (1994).
51. United States v. Mills, No. 88-
03 100 (N.D. Fla. Apr. 17, 1989).
52. United States v. Mills, 904 F.2d
713 (11th Cir. 1990) (Sentences
affirmed).
53. United States v. Phillips, D.
Mont. (unpublished).
54. Civ. No. 02-1377, (6th Cir.
2003).
55. See, e.g., Chris Lawin, At War
Over Wetlands: Father, Son
Imprisoned After Losing Fight With
Government, ST. PETERSBURG
TIMES, Nov. 19, 1989, at 13.
56. 33 U.S.C. § l365(a)(1), (g).
57. Id. § 505(b), 33 U.S.C. §
1 365(b)(1 )(A).
58. Id. § 505(b), 33 U.S.C. §
I 365(b)(1)(B).
Fall 2003
12
Environmental Law Newsletter

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STATE BAR OF GEORGIA
ENVIRONMENTAL
r:i :1 ? ‘
I1I,j
—tL.k__L
Fall 2003
E. Peyton Nunez, Chair
Jeffrey S. Dehner Editor
Inside this Issue
Message from the Chair
page3
Wetlands Enforcement
101
page6
EPA’s “All Appropriate
Inquiry” Rule
page8
Managing Trust by Bold
Inclusion
page 13
Upcoming Events
January 15 - 17, 2004
State Bar of Georgia’s
Midyear Meeting
Sheraton Colony Square,
Atlanta
Significant Stakeholder
Input Shapes Georgia’s
Phase II Permits NPDES
General Storm Water Permits for Construction Activity
by Anne H. Hicks
Holden & Associates, P.C.
Introduction
0 n Aug. 13, 2003, the Georgia Department of Natural Resources,
Environmental Protection Division (EPD) issued three general National
Discharge Elimination System (NPDES) permits (Phase II General Permits or
Permits)’ that regulate storm water discharges to waters of the state associated
with construction activities disturbing one or more acres. The Phase II General
Permits, authorized by the Federal Clean Water Act 2 (CWA) and the Georgia
Water Quality Control Act, 3 replace the NPDES General Permit No. GAR
100000 (Phase I General Permit) that was in effect from Aug. 1, 2000 to July 31,
2003 and regulated construction sites between five and 250 acres. The permits
will be in effect until July 31, 2008.
The Phase II General Permits are the result of significant, and perhaps
unprecedented, input from various organizations representing the environmental
and regulated communities. For two to three years prior to the issuance of the
Phase II General Permits, these stakeholders met and corresponded with EPD to
offer revisions to the confusing state system for the control of erosion, sedimen-
tation and storm water flowing from construction activities. Although there is
still room for improvement, the recent amendments to this area of state law
streamline the regulation of land disturbing activities, while continuing to protect
waters of the state from the negative effects of storm water runoff.
The table on page five summarizes the applicability of each Phase II General
Permit, some important provisions of these permits and how they compare to the
original Phase I General Permit. The language in the three Phase II General
Permits is substantially similar with the exceptions noted in the table. Each
Phase II General Permit is at least 30 pages long and highly technical in nature.
Therefore, this article, and particularly Section highlights only some of the
critical aspects of the new permits.
History of the General Storm Water Permit System
The CWA prohibits the discharge of any pollutant 4 into waters of the United
States from a point source unless the discharge is authorized by a NPDES permit

-------
or another exception applies. 5 The
U.S. Environmental Protection
Agency (EPA) allows authorized
states, such as Georgia, to issue gen-
eral NPDES permits to certain cate-
gories of industrial activities, includ-
ing construction activities. Unlike an
individual permit that applies to an
individual discharger, a general permit
applies to an entire class of dis-
charges.
In response to the 1987
Amendments to the CWA, EPA devel-
oped Phase I of the NPDES Storm
Water Program in 1 99Ø•6 Under
Phase I, EPA required permit cover-
age for storm water discharges from
certain municipal separate storm
sewer systems and eleven categories
of industrial activity, including con-
struction activity disturbing five or
more acres of land. In April 1990,
EPD amended its Rules for Water
Quality Control 7 (WQC Rules) to
allow for the issuance of general
NPDES permits. The WQC Rules
provide that “storm water point
sources” are “point sources subject to
the NPDES permit program. 8 In
January 1991, EPA granted EPD
authority to issue general NPDES per-
mits.
In September 1992, EPD issued the
first of five different general NPDES
permits for construction activities dis-
turbing greater than five acres of land.
Each of the permits was administra-
tively appealed by interested parties
and never became effective. The first
four general NPDES permits were
appealed administratively by Terrence
Hughey, the Sierra Club and other
environmental groups. The fifth gen-
eral NPDES permit was appealed in
1999 by members of the regulated
community, including utilities and
homebuilder’s. After months of set-
tlement negotiations with environ-
mentalists and members of the regu-
lated community, EPD issued the
Phase I General Permit on Aug. 1,
2000 for the regulation of storm water
discharges into waters of the State
from construction activity disturbing
between five and 250 acres.
On Dec. 8, 1999, EPA established
the Phase II storm water regulations
that address construction activities
disturbing between one and five acres
of land. In response, EPD amended
its WQC Rules again in April 2001 to
incorporate the federal Phase II regu-
lations.
Feedback from the Stakeholder
Groups
Only five months after issuing the
Phase I General Permit, Georgia’s
Board of Natural Resources (the DNR
Board) passed a resolution on Jan. 24,
2001, requesting an audit of the state
erosion and sedimentation and general
storm water permit programs, includ-
ing recommendations on whether leg-
islative changes to the Georgia
Erosion and Sedimentation Act (E&S
Act) 9 were needed. Subsequently, the
Georgia Department of Audits con-
ducted an Erosion and Sedimentation
Program Performance Audit in
September 2001.
Later in 2001, EPD began assessing
the Phase I General Permit and the
E&S Act to determine how the over-
lapping programs could be improved.
EPD worked with the Erosion and
Sediment Control Overview Council
10 and formed the General
Permit Advisory Committee (GPAC,
also referred to as the Storm Water
Advisory Committee) to address con-
cerns and ideas for clarif ’ing the
Phase I General Permit. GPAC’s
members included developers, utili-
ties, contractors, local governments,
environmental groups and others
involved in implementing or poten-
tially enforcing the general storm
water permits.’ 1
Throughout 2002, the Council and
GPAC met and corresponded with
EPD to discuss changes to the E&S
Act and the Phase I General Permit.
EPD produced a series of “Concept
Papers” that described proposed
amendments to streamline these regu-
latory programs. It became increas-
ingly clear that EPD required addi-
tional inspectors to ensure that the
purpose of the general storm water
program — keeping soil out of state
waters — was enforced. Imposing per-
mit fees on the entities regulated by
the storm water permits became a
growing reality. There was a general
consensus between the stakeholders
and EPD that the E&S Act needed to
be amended to establish a permit fee
system, be more consistent with the
general storm water permits and to
minimize the duplicate regulation of
the same activity (land disturbance)
by multiple agencies (EPD and local
governments). In exchange for their
support of the permit fee system,
members of the regulated community
understood that EPD would reduce
the monitoring requirements and
make other specific changes to the
Phase I General Permit.
Amendments to the E&S Act and
Their Interplay with the Phase II
General Permits
After nearly two years of discus-
sions with the Council and the GPAC
stakeholder groups, House Bill 285
was introduced in the Georgia
General Assembly in February 2003.
After the General Assembly approved
the bill it was signed by Gov. Sonny
Perdue. The amendments to the E&S
Act became effective on July 1, 2003.
House Bill 285 sign ?ficantly amended
the E&S Act by:
• Requiring local governments, in
order to become certified local issuing
authorities (LIAs), 12 to amend their
local land disturbance ordinances by
July 1, 2004 to meet or exceed the
standards and requirements of a state
general permit, 13 except that the pro-
visions for monitoring, reporting,
inspections, design standards, turbidi-
ty standards and education and train-
ing cannot exceed the requirements in
the state general permit. 14
• Amending O.C.GA. § 12-7-7 so
that in a jurisdiction where no LIA
exists, a party disturbing one or more
acres must only comply with a state
general permit and does not need to
obtain an individual land disturbing
activity (LDA) permit from EPD.’ 5
However, if the construction project is
within a LIA jurisdiction, the party
Fall 2003
2
Environmental Law Newsletter

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.
a)
EE
0
I -
0 n Aug. 1 and 2, the Section
held its annual Summer
Seminar at the Ritz -Carlton
Amelia Island. Robert Fabricant,
who recently resigned but at the
time was the Environmental
Protection Agency’s General
Counsel, kicked off the event by
speaking to attendees about some
of the important cases the EPA is
involved in. Over the course of the
two day seminar, various panels
spoke on traditional environmental
topics, such as air and water; law-
based topics, including
takings/commerce clause issues
and administrative law procedures;
and “sign of the times” topics, such
as the HSRA panel and the home-
land security discussions. Many
thanks to all of the panel partici-
Earlier this year, Harold Reheis
resigned after a long and distin-
guished career as Director of
Georgia’s Environmental
Protection Division. In recognition
of his many accomplishments, and
as a final farewell, the section, in
conjunction with Alston & Bird
LLP, hosted a cocktail reception
for Harold Reheis on Sept. 29 from
5:30 to 7 p.m. at Aiston & Bird’s
Atlantic Center Plaza location.
Finally, it’s time again to nomi-
nate members for section officer
positions. Susan Richardson, cur-
rently Chair-elect, will automati-
cally become Chair in January
2004. Ballots for the i!ethaining
officer positions will be distributed
in early October, so please remem-
ber to cast your vote and return
your ballots by the specified date.
must still obtain a LDA from the local
authority and comply with the state
general permit.
• Requiring all persons involved in
land development, design, review,
permitting, construction, monitoring
or inspections after Dec. 31, 2006, to
meet certain education and training
requirements developed by the State
Soil and Water Conservation
Commission (Commission). 16 In
establishing an education and training
program, the Commission must con-
suit with EPD and a 13-member
Stakehoider Advisory Board to be
appointed by the governor. 17
• Striking the mandatory minimum
penalty provisions and instead allow-
ing EPD or the LIA to issue mandato-
ry stop work orders when a party fails
to maintain a stream buffer or “signif-
icant amounts of sediment,” as deter-
mined by the LIA or EPD, have been
discharged into state waters and
where best management practices
(BMPs) have not been properly
designed, installed and maintained ) 8
• In addition, House Bill 285
amended the Georgia Water Quality
Control Act, by requiring the DNR
Board to establish a general storm
water permit fee system by Dec. 31,
2003.19 These fees will be used to
hire additional EPD inspectors to
enforce the Phase II General
Permits. 2 °
Phase II General Permits
Development of the Drafts Permits
As the July 31, 2003 deadline for
the expiration of the Phase I General
Permit approached, EPD increasingly
sought feedback from the GPAC
regarding specific changes to the
Permit. GPAC members generally
agreed that separate permits were
needed for infrastructure projects and
for projects within common develop-
ments, to avoid the confusing differ-
entiation of such projects in the Phase
I General Permit.
In May and June 2003, EPD distrib-
uted at least three draft versions of the
Phase II General Permits to the
GPAC, prior to the formal notice and
comment period for the draft Permits.
GPAC members provided substantial
written and oral comments to EPD
during this time. EPD held at least
four meetings with the stakeholder
groups to attempt to resolve the most
controversial permit changes. Bob
Kerr, director of DNR’s Pollution
Prevention Assistance Division and
EPD’s Larry Hedges chaired the
meetings. EPD’s Mark Wyiand spear-
headed the dubious task of incorporat-
ing the numerous revisions to the per-
mits that resulted from the meetings
with stakeholders.
Following a 30-day public com-
ment period, 2 ’ on Aug. 13, 2003,
EPD issued the following Phase II
General Permits:
• NPDES General Permit No.
GAR 100001 for Storm Water
Discharges Associated with
Construction Activity for Stand-Alone
Construction Projects (the Stand-
Alone Permit);
I
*
pants.
Environmental Law Newsletter
3
Fall 2003

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• NPDES General Permit No.
GAR 100002 for Storm Water
Discharges Associated with
Construction Activity for
Infrastructure Construction Projects
(the “Infrastructure Permit”); and
• NPDES General Permit No.
GAR 100003 for Storm Water
Discharges Associated with
Construction Activity for Common
Developments (the “Common
Development 22 Permit”).
The Common Development Permit
generally applies to construction
activities involving multiple structures
under one plan of development,
where the primary permittee (i.e. the
owner or operator of the land) choos-
es to use secondary permittees.
“Secondary permittee” is narrowly
defined as “an individual builder, util-
ity company, or utility contractor that
conducts a construction activity with-
in a common development.” If sec-
ondary permittees are not utilized for
the development, the stand-alone per-
mit applies. The infrastructure permit
generally applies to linear construc-
tion activities, such as roads and utili-
ty lines.
In its Aug. 13, 2003 letter respond-
ing to the formal public comments
received on the draft Permits, EPD
stated:
EPD believes that these permits
capture the agreements and under-
standings reached in the GPA C, and
are in accordance with the require-
ments of the Federal Clean Water Act
and the Georgia Water Quality
Control Act. EPD firmly believes that
these permits provide enhanced pro-
tection for the environment while low-
ering costs to the regulated communi-
ty 23
Significant Changes in the General
Storm Water Permits
As depicted more briefly in the
table, the major changes reflected in
the Phase II General Permits, com-
pared to the Phase I General Permit,
include the following:
1. Monitoring Requirements 24
The primary permittee’s responsi-
bility to conduct sampling has been
substantially reduced to the following
two key sampling events:
(1) For each area of the site that
discharges to a receiving stream, 25 the
first rain event> 0.5 inches after all
clearing and grubbing operations have
been completed in the drainage area
of the sampling location; and
(2) For each area of the site that
discharges to a receiving stream, the
first rain event> 0.5 inches that
occurs either 90 days after the first
sampling event [ in (1) above] or after
all mass grading 26 operations have
been completed in the drainage area
of the sampling location, whichever
comes first.
In addition, if, during either of the
two sampling events previously
described, BMPs for preventing and
minimizing erosion and resultant sedi-
mentation are found not to be proper-
ly designed, installed and maintained,
corrective action shall be defined and
implemented within two business
days and turbidity samples shall be
taken in that area for each subsequent
rain > 0.5 inches until the selected
turbidity standard is attained or until
post-storm event inspections deter-
mine that BMPs are properly
designed, installed and maintained. 27
2. Permit Fee System
By submitting a Notice of Intent for
coverage under one of the Phase II
General Permits, the primary permit-
tee agrees to pay a per acre fee for
each acre of disturbed land. EPD’s
proposed Erosion and Sedimentation
Control (E&SC Rules) establish an
$80 per acre permit fee system that
will be presented to the DNR Board
at its October 2003 meeting. 28
3. Best Management Practices
The Phase II General Permits
require construction activities to uti-
lize BMPs for preventing and mini-
mizing erosion and storm water
runoff at construction sites. The
Phase II General Permits now specifi-
cally incorporate the BMPs that are
described in the most recent “Manual
for Erosion and Sediment Control in
Georgia” published by the
Commission.
Part III.C. of the Phase II General
Permits retains the provision protect-
ing permittees that “proper design,
installation and maintenance of best
management practices shall constitute
a complete defense to any action by
the [ EPD] Director or to any other
allegation of noncompliance with
Parts III.C.3 and Part III.C.4.” A new
sentence in this part clarifies that per-
mittees will not be subject to viola-
tions for “BMP maintenance as a
result of the permittee’s routine
inspections.” In addition, this part
now provides that if, during the
course of routine site inspections, a
permittee observes BMP failures (e.g.
silt fences that have collapsed), the
permittee must correct the BMP fail-
ure and submit a summary of viola-
tions to EPD. Nonetheless, mere fail-
ure of a BMP does not necessarily
warrant a legal conclusion that the
BMP was improperly designed,
installed or maintained if BMPs are
promptly repaired.
4. Erosion, Sedimentation & Pollution
Control Plans
The major document required under
the Phase II General Permits is the
Erosion, Sedimentation and Pollution
Control Plan (ES&PC Plan). The
ES&PC Plan must be prepared by a
“design professional” and contain the
information in Part IV of the applica-
ble Permit, including a description of
BMPs and receiving waters or outfalls
that will be sampled. The Phase II
General Permits require the primary
permittee to prepare only an ES&PC
Plan, rather than both an ES&PC Plan
and a Comprehensive Monitoring
Program. Essentially, the information
in the two documents have been
merged into one plan. Furthermore,
in jurisdictions where there is no LIA,
ES&PC Plans now must be submitted
to EPD’s Water Protection Branch and
the local Soil and Water Conservation
District office. 29 In addition, for proj-
ects 50 acres, a copy of the ES&PC
Fall 2003
4
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Plan must also be sent to the appro-
priate EPD district office.
5. Education Requirements
As a result of House Bill 285, all
“qualified personnel” and “design
professionals,” engaging in inspec-
tions and preparing ES&PC Plans
under the permits, must comply with
specific education and training
requirements. After Dec. 31, 2006,
design professionals and qualified
personnel must complete an erosion
and sediment control certification
course approved by the Commission.u
Endnotes
I. See
http://www.ganet.org/dnr/environ
(EPD’s web site) for a copy of the
Phase II General Permits. Click onto
“Technical Guidance” and scroll
down to “Storm Water” to see the per-
mits.
2. 33 U.S.C. § 1251 etseq.
3. O.C.G.A. § 12-5-20 etseq.
4. The definition of “pollutant”
under the CWA includes rock, sand,
cellar dirt and industrial, municipal
and agricultural waste. 40 C.F.R. §
122.2.
5. See 33 U.S.C. § 1311 and 1342.
See Endnotes on page 9
GEORGIA’S PHASE II GENERAL STORM WATER PERMITS
FOR CONSTRUCTION ACTIVITY
GEORGIA’S
EXPIRED
PHASE I
GENERAL
PERMIT
Stand-Alone
Permit
Infrastructure
Permit
Common
Development Permit
Scope of
Coverage
Under the
Permit
Construction
activities> 1 acre
that are not part of a
Common
Development where
the primary permittee
chooses not to use
secondary permittees
Construction activities> 1
acre that are not part of a
Common Development
that are being conducted
by an Infrastructure
Company or
Infrastructure Contractor
Construction activities> 1
acre in a contiguous area
where multiple separate &
distinct construction
activities may be taking
place at different times on
different schedules under
one plan of development
or sale, where the primary
permittee chooses to use
secondary permittees
Construction
activities between 5
and 250 acres.
Distinctions made for
linear (infrastructure)
projects and
Common
Developments
Examples
of Projects
Covered
Under the
Permit
Stand alone buildings
such as schools,
hospitals and gas
stations
Roads, gas pipelines,
substations, high voltage
electric transmission
lines, telecommunications
lines, water & sewer lines
Subdivisions, industrial
parks
All projects
Exceptions
to
Coverage
Agricultural &
silvicultural practices
(1) Agricultural &
silvicultural practices;
(2) Routine maintenance
projects that disturb < 5
acres if certain conditions
are met; and (3) Railroad
construction projects
Agricultural &
silvicultural practices
Agricultural &
silvicultural practices
Sampling
Require-
ments
First ½” rain event
after clearing &
grubbing complete +
first Y 2 ” rain 90 days
later or after all mass
grading complete +
after each ‘A” rain if
BMPs improperly
designed, installed or
maintained. Samples
taken during normal
business hours.
Same as Stand-Alone
Permit; however,
representative sampling of
streams & outfalls is also
allowed — see note 25
below.

Same as Stand-Alone
Permit
Following various
½”, 1” and 2” rain
events. Samples must
be taken within
required time period,
24 hours a day.

Routine
Site
Inspections
Every 7 days &
within 24 hours of
end of storm with
‘A” rainfall
Every 14 days & within
24 hours of end of storm
with ½” rainfall
Every 7 days & within 24
hours of end of storm
with Y 2 ” rainfall
Every 7 days &
within 24 hours of
end of storm with
Y 2 ” rainfall
Environmental Law Newsletter
5
Fall 2003

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© c m M O1
Introduction
o the uninitiated, wetlands
enforcement can seem confusing.
A number of questions can, and often
do, arise while the Army Corps of
Engineers or the Environmental
Protection Agency pursues a potential
violator in an enforcement action.
Which agency is going to take the
lead? Can the agencies switch
enforcement responsibilities mid-
stream? Do the agencies need a war-
rant to inspect the violator’s property?
Will the action be administrative,
civil, criminal or all of the above?
What role will the Department of
Justice assume in the case? Will the
violator have to restore the disturbed
wetland? These questions and several
more are addressed in this article.
The article begins by explaining the
enforcement responsibilities of the
EPA and the Corps and then briefly
summarizes the enforcement tools
that each can employ in enforcement
cases. The article is not meant to be
all-encompassing; instead it aims at
providing a basic introduction to the
wetlands enforcement regime.
Corps and EPA Enforcement
Responsibilities
The Corps and EPA have overlap-
ping enforcement responsibilities for
protecting wetlands under the Clean
Water Act (CWA).’ The two agen-
cies set forth their respective enforce-
ment duties in 1989 by entering into a
memorandum of agreement. 2 In
accordance with this MOA, the
Corps, with its extensive field
resources, conducts the majority of
initial investigations to identify viola-
tions. 3 Furthermore, the Corps is the
lead enforcement agency for viola-
tions of Corps permits and for certain
unpermitted discharges. The latter
category includes: i) violations that
do not involve repeat or flagrant vio-
lators, ii) cases where EPA has not
requested to be the lead enforcement
agency, and iii) violations that the
Corps has not yet referred to EPA. 4
EPA typically assumes the lead on all
other unpermitted discharges and in
special cases. “Special cases” are
wetlands violations that involve the
exemptions under section 404(f) of
the Clean Water Act for agriculture
and silviculture in addition to any-
thing EPA defines as a special case. 5
Even after an enforcement action
has commenced, the lead agency can
always refer an enforcement matter to
the other agency to take advantage of
that agency’s expertise and
resources. 6 For instance, the Corps
will refer cases involving “flagrant
violators” to the EPA for further pros-
ecution. Typically, the Corps and
EPA work well together realizing that
they have a con imon enforcement
mission to protect wetland resources.
The Wetlands Enforcement Toolkit
The enforcement tools available to
the agencies are several and are
designed to cover wetlands violations
both large and small. Whether these
tools do the job, however, depends in
large measure on the resources the
agencies have available at the time of
the action and on the continually
evolving body of wetlands law.
For any given enforcement case,
the agencies have three basic options
at their disposal i) administrative
enforcement, ii) civil enforcement in
conjunction with the Department of
Justice; and iii) criminal enforcement
in conjunction with the Department of
Justice. It is not uncommon for
agency enforcement officials to apply
more than one of the options in a par-
ticular case. Thus, if you are
involved in a wetlands enforcement
case, it is important that you under-
stand not only the respective enforce-
ment responsibilities of each of the
agencies, but also each tool in the
wetlands enforcement toolkit.
A. Administrative Enforcement
Options
1. Information Requests
Both the Corps and EPA have broad
authority under Section 308 of the
CWA to collect information related to
any potential violation of Section 404.
This includes information about the
financial status of the violator, eco-
nomic benefit of the violation, the
existence of government contracts,
development plans, and the specifics
on the violation itself. 7 Corps and
EPA inspectors can also go on the
violator’s property as long as they do
so at reasonable times and have their
credentials in hand. Although it is not
required, the agencies often obtain
administrative warrants when viola-
tors refuse to allow entry.
2. Corps Cease and Desist Orders
and EPA Compliance Orders
Both the Corps and EPA can issue
orders demanding that violators cease
activities causing wetlands violations.
The Corps issues “cease and desist”
orders, 8 whereas EPA issues “compli-
ance” orders. 9 These orders typically
require removal of the illegal fill and
restoration of the damaged wetlands.
They also set the stage for further
enforcement actions by giving notice
to recipients of the violation and by
demanding compliance. 10
Typically, these administrative
orders lead to negotiations between
the violator and either the Corps or
EPA. If a settlement is reached, and
often times they are, the settlement is
embodied in an administrative order
on consent that can be entered by the
agency without assistance from the
Department of Justice or a Federal
Court. If a violator does not comply
with such an order, he or she may end
by William W. Sapp
United State’s Environmental Protection Agency
Fall 2003
6
Environmental Law Newsletter

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up in Federal District Court and can
be subject to a civil penalty of
$27,500 per day in addition tojudi-
cial penalties for the underlying viola-
tions under Section 3 09(d) of the Act.
If the Corps or EPA, depending on
which agency issued the order, cannot
reach a settlement with the violator,
then the Agency may refer the case to
DOJ. DOJ will usually try to broker a
settlement. If this fails, DOJ will file
suit in Federal District Court.
It is important to understand that
violators cannot seek immediate judi-
cial review of cease and desist orders
or compliance orders. 12 The Corps
and EPA have been able to resist
defending these orders on grounds of
prematurity and lack of finality
because the CWA does not provide for
such judicial review. 13 Violators who
have sought judicial review of cease
and desist and compliance orders have
not prevailed.’ 4 Therefore, the viola-
tor who receives a cease and desist
order or compliance order has two
options: i) defy the order and wait for
the DOJ to prosecute, or ii) comply
with the order and enter into settle-
ment discussions with the Agency
involved to workout an acceptable
resolution. 15 In the large majority of
cases, the violators opt for the latter
option. One of the quickest ways for
a violator to end up in Federal District
Court with a DOJ wetlands attorney
seeking significant penalties, is to
ignore multiple cease and desist or
compliance orders.
3. After-the-Fact Permits
The Corps, as the permit issuing
agency, also has the option to process
“after-the-fact” pennits for violators
who have either released unpermitted
discharges of dredged or fill material
or violated the conditions of a Corps
Section 404 permit. 16 Under certain
circumstances, after-the-fact permits
allow violators to leave unauthorized
discharges in waters of the United
States if they mitigate the impact of
these discharges. For example, if a
violator fills a wetland without a per-
mit and builds a house on top of this
fill before being discovered, the Corps
does not have to force the violator to
remove the fill and the house. Rather,
the Corps can issue an after-the-fact
permit, requiring the violator to pro-
vide compensatory wetlands mitiga-
tion for the damage caused.
The Corps can only issue an after-
the-fact permit if the lead enforcement
agency, which may be the EPA, is sat-
isfied that an acceptable enforcement
result has been reached. Further-
more, after-the-fact permits are gener-
ally reserved for situations where it
appears that the fill would have satis-
fied the Section 404(b)( 1) Guidelines
and there was no wilfulness or recal-
citrance involved during the settle-
ment process.
To receive an after-the-fact permit,
violators must complete a permit
application similar to the application
for an initial wetlands permit. 17 The
Corps will reject after-the-fact permits
in three situations: i) if the violator,
after attempting to restore the site,
fails to “eliminate current and future
detrimental impacts to the satisfaction
of the district engineer”; ii) if legal
action is still pending; or iii) if a fed-
eral, state, or local authorization or
certification for the after-the-fact per-
mit has been denied. 18 If none of
these exceptions are present, then the
Corps processes after-the-fact permits
in the same manner as a standard per-
mit application, by applying EPA’s
Section 404(b)( 1) Guidelines 19 and by
determining whether the activity
would be contrary to the public inter-
est. 20 If the Corps denies an after-
the-fact permit, the violator must take
appropriate corrective action to
restore the site. 21
4. Penalty orders
In the 1987 amendments to the
CWA, Congress granted both the
Corps and EPA administrative penalty
authority, but limited the Corps’
authority to violations of permit con-
ditions and limitations. 22 In contrast,
EPA’s penalty order authority extends
to any violation of the CWA. 23
Section 309 of the CWA, the source
of both agencies’ administrative
penalty authority, 24 establishes two
classes of penalties. 25 Class I penal-
ties may not exceed $11,000 per vio-
lation or a total of $27,500 for multi-
ple violations. 26 Class II penalties,
which are directed at more egregious
violations, may neither exceed
$11,000 per day nor $137,500 in the
aggregate. 27
The Corps has promulgated Class I
penalty procedures that allow a viola-
tor thirty days from the time, of
receiving the penalty to request a
hearing. 28 The Corps notifies the
public of the penalty order and estab-
lishes a thirty-day comment period. 29
All hearings are informal and the vio-
lator may present evidence orally or
in writing. 30 Although another Corps
employee may act as the hearing offi-
cer, the District Engineer ultimately
determines the outcome of the case. 31
If a violator does not prevail at a hear-
ing, his only recourse is to file suit in
Federal District Court. 32 The Corps
has not promulgated Class II penalty
procedures, and as a result does not
pursue Class II penalties. Instead it
refers cases that would warrant higher
penalties to the DOJ, or, in some
instances, to the EPA.
Both EPA Class I and Class II
penalty procedures include a hear-
ing. 33 Although the Class II penalty
hearings are subject to Section 554 of
the Administrative Procedures Act and
the Class I penalty hearings are not,
the two types of hearings are very
similar in practice. The only readily
If you are involved in a wetlands enforcement case,
it is important that you understand not only the
respective enforcement responsibilities of each of the
agencies, but also each tool in the wetlands enforce-
ment toolkit.
See Wetlands on page 10
Environmental Law Newsletter
7
Fall 2003

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EPA 5 s Evdllvhig ADD Appropr ate nqu ry’ Rifle
Broad llmpD caE oois to ReaO Es aite Transactions
W hen President Bush signed the
Small Business Liability Relief
and Brownfields Revitalization Act
(the Brownfields Law) in January
2002, the law amended the “Innocent
Landowner Defense” under CERCLA
(i.e. Superfund), in addition to provid-
ing two new categories of liability
protection for contiguous property
owners and bona fide prospective
purchasers. The Brownfields Law
also requires EPA to develop regula-
tions that will establish standards and
practices for conducting “all appropri-
ate inquiry” into the prior ownership
and use of sites in order to meet
superfund’s requirement.
Importantly, the law also designates
the ASTM Standard Practice for
Environmental Site Assessment:
Phase I Environmental Site
Assessment Process” (hereinafter the
“ASTM Phase I Standard”) as the
interim technical standard. Since
1993, the ASTM Phase I Standard has
routinely been relied upon by proper-
ty owners, prospective purchasers,
lenders and attorneys to meet the all
appropriate inquiry obligation. While
the widely recognized ASTM Phase I
Standard will serve as the interim pro-
cedure until Jan. 11, 2004, it may well
be replaced with a new, more compre-
hensive EPA Rule currently being
developed. The new rule will also
establish the procedures to receive
funding under the EPA Brownfields
Program. Significantly, because of
the very general definition of what
constitutes a “Brownfield” site, EPA’s
new rule will effect virtually all com-
mercial real estate transactions, not
just those involving Brownfields.
In order to develop standards and
practices that reflect the positions of
the various stakeholders, EPA opted
to assemble a group of 25 organiza-
tions and associations identified as
the “Negotiated Rule Making
Committee,” establishing the so-
called “Reg-Neg” process. This
approach is a departure from the
EPA’s typical procedure of drafting
the proposed rule in-house and then
putting it out for review and corn-
ment. Committee members first
assembled in Washington in late April
to establish basic processes and
define goals and objectives that strike
a balance of the often divergent views
of the various stakeholders. To guide
EPA’s process the agency published
“EPA’s Common Elements Guidance”
on March 6 which established 10 cri-
teria to be included in the federal “All
Appropriate Inquiry Rule.” The com-
mittee met most recently in early
September to further discuss the defi-
nition of “Environmental
Professionals,” as well as expanding
the scope of current Phase I environ-
mental site assessments to include
interviews with adjoining property
owners. This approach is particularly
problematic for a number of reasons.
There is a lack of statutory basis for
conducting such interviews and con-
tacting adjoining landowners could
significantly compromise the confi-
dential nature of pre-acquisition envi-
ronmental due diligence assessments.
In addition, the reliability of informa-
tion obtained in such interviews may
be difficult to establish and many
types of information likely to be
gained from such interviews can be
more readily and efficiently obtained
froni public records.
One important question that quickly
emerged is what role the ASTM
Phase I Standard will play in the
process. Pursuant to the National
Technology Transfer and
Advancement Act (NTTA), federal
agencies are required to adopt exist-
ing consensus standards wherever
possible. In coordinating with other
federal, state and local agencies,
NTTA seeks to achieve greater
reliance on voluntary standards (such
as the ASTM Phase I Standard) and to
lessen dependence on in-house stan-
dards. Indeed, Congress said as much
in establishing the ASTM Phase I
Standard as the interim procedure in
the Brownfields Law. It appears to be
EPA’s position, however, that the
ASTM Phase I Standard — the single
most financially successful standard
in that organization’s history - does
not go far enough to meet EPA’s
interpretation of its Congressional
mandate. The agency has also taken
the position that it reserves the right
to proceed with its own rulemaking
notwithstanding the outcome of the
Reg-Neg Process. Patricia
Overmeyer, who is spearheading
EPA’s efforts through the Office of
Brownfields Cleanup and
Redevelopment, stated the agency
will also need to have the new rule
reviewed by 0MB, among other fed-
eral agencies, before being finalized.
This “process could take a year, a
month or a day,” according to
Overmeyer.
Alton R. “Tony” Brown, III,
SCSM/CLS, the longstanding chair-
man of the International Council of
Shopping Centers (ICSC)
Environmental Subcommittee, was
appointed by EPA’s committee to rep-
resent the member-stakeholders of the
ICSC. “At this preliminary stage of
the of the discussions, no positions
are being taken by any of the stake-
holders in favor of getting general
concepts out on the table from which
EPA will draft proposed language for
review and comment,” said Brown.
He points out that while “the ASTM
document looms large in the discus-
sions, there are a number of issues on
the table that go beyond the existing
Phase I Scope.” According to Brown,
“the commercial real estate industry
is fairly represented at the bargaining
table.” David A. Luick, Regional
Environmental Real Estate Manager
for Target Corporation, serves as the
ICSC alternate.
Echoing ICSC’s sentiments,
Charles “Chic” Crealese, National
Site Assessment coordinator and prin-
cipal at GZA GeoEnvironmental in
Needham, Mass., acknowledges that
discussions at the first stakeholder
meeting were philosophical in nature;
no details have been discussed and no
level of consensus has emerged.
According to Crealese, “the people at
the table are now getting a taste of the
difficulty in going from abstract con-
cepts to regulations that will meet the
by Michael Carvalho, Esq.
Hartman, Simons, Spielman & Wood, LLP
Fall 2003
8
Environmental Law Newsletter

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needs of differing interests.” For
example, EPA’s mandate to investi-
gate “past owners and operators” of a
facility poses significant challenges to
the Phase I practitioner as the ability
to identify such parties can be burden-
some and add significant cost to the
environmental site assessment
process.
As most real estate professionals
know, the completion of Phase I
Environmental Site Assessments is
important for a number of reasons
beyond the ability to establish
CERCLA’s Innocent Landowner
Defense. A thorough understanding
the environmental issues at a property
helps parties allocate risk and avoid
costly construction delays. Virtually
every lender, consultant and real
estate professional in the United
States recognizes the ASTM Phase I
Standard as “the” process for evaluat-
ing environmental impairment liabili-
ty. According to committee member
Julie Kilgore of Wasatch
Environmental, “the ASTM Standard
gives us two things: a common lan-
guage and a baseline. If EPA moves
much beyond the ASTM process, the
decision will need to be niade as to
what the purpose of the assessment
will be.” The rancor and debate that
characterized the development of
ASTM Phase I Standard will not be
so easily avoided if substantial por-
tions of the document are not reflect-
ed in the new EPA rule.
The old comparison between legis-
lation and sausage seems to have
some applicability here. What
remains clear is that the Reg-Neg
process in which EPA is now engaged
may be significantly more contentious
than the agency anticipated.
Expanding the scope of Phase I
inquiries beyond that which is either
necessary or appropriate will almost
certainly be the subject of consider-
able resistance by the regulated com-
munity. It remains possible that EPA
will simply choose to delay the imple-
mentation of the new rule beyond the
Jan. 11, 2004 deadline set by
Congress in favor of maintaining the
status quo. The new rule, however,
could have a significant effect on vir-
tually all commercial real estate trans-
actions. In the meantime, the ASTM
Phase I Standard will continue to be
widely relied upon for meeting the all
appropriate inquiry standard and busi-
ness needs of the real estate commu-
nity. Stay tuned. u
Endnotes
Continued from page 5
6. 50 Fed. Reg. 47990 (November
16, 1990)and57Fed.Reg. 11394
(April 2, 1992).
7. Ga. Comp. R. & Regs. r. 391-3-6
et seq.
8. Ga. Comp. R. & Regs. r. 39 1-3-
.16(3)(a). “Storm Water Point
Source” is defined as “a conveyance
or system of conveyances (including
pipes, conduits, ditches, and channels
or sheet flow which is later conveyed)
primarily used for collecting and con-
veying storm water runoff excluding
conveyances that discharge storm
water runoff combined with municipal
sewage. Id. at 391-3-. 16(2)(c).
9. O.C.G.A. § S 12-7-I etseq.
10. The Council’s mission, pursuant
to O.C.G.A. § 12-7-7.1(f), is to “pro-
vide guidance on the best nianage-
ment practices for implementing any
erosion and sediment control plan”
[ that the Department of
Transportation (“DOT”) or the State
Road and Tollway Authority must
prepare for any construction or main-
tenance project disturbing one or
more acres] and “may develop recom-
mendations governing the preparation
of plans and the installation and main-
tenance of best management prac-
tices.” Members of the Council
include DOT, EPD, the Georgia
Regional Transportation Authority, a
professional engineer and two repre-
sentatives of the highway contracting
industry certified by DOT.
II. Members of GPAC included
representatives of local governments
throughout the State, the Upper
Chattahoochee Riverkeeper, the Home
Builders Association of Georgia, the
Georgia Branch, Associated General
Contractors, Georgia Power
Company, Georgia Transmission
Corporation, Atlanta Gas Light
Company and various consultants and
engineers involved in implementing
the Phase I General Permit.
12. “Local issuing authority” means
the governing authority of any county
or municipality which is certified pur-
suant to the procedures in O.C.G.A. §
12-7-8. See O.C.G.A. § 12-7-3(10).
O.C.G.A. § 12-7-8, in turn, requires
the DNR Board to establish Rules set-
ting forth the requirements and stan-
dards for certification and decertifica-
tion of a LIA. EPD will publish
amendments to its Erosion and
Sedimentation Control Rules (“E&SC
Rules”), Ga. Comp. R. & Regs. r.
391-3-6.01 etseq,, for public com-
ment in September 2003. The E&SC
Rules should be adopted by the DNR
Board in October 2003.
13. The definition of “state general
permit” is “the National Pollution
Discharge Elimination System general
permit or permits for storm water
runoff from construction activities as
is now in effect or as may be amend-
ed or reissued in the future pursuant
to the state’s authority to implement
the same through federal delegation”
under the CWA and O.C.G.A. § 12-5-
30 (the GWQCA). Therefore, this
term now refers to the Phase II
General Permits.
14. O.C.G.A. § 12-7-8. This lan-
guage may be somewhat confusing
See Endnotes on page 15
Environmental Law Newsletter
9
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Wetlands
Continued from page 7
apparent distinction is that the Class
II penalty hearings are conducted by
an administrative law judge and the
Class I penalty hearings are conduct-
ed by a regional judicial officer. 34
Both types of hearings are similar to a
trial; however, the rules of evidence
are relaxed and hearsay is typically
allowed in.
Unlike cease and desist and compli-
ance orders, violators can seek judi-
cial review of penalty orders. 35 Few
violators have sought review and
fewer still have been successful. For
example, in Hanson v. United States,
the court upheld a $24,000 Class I
penalty in a
wetlands
enforcement
case. 36
Infrequently,
these penal-
ties are over-
turned. This
occurred in
Hoffman
Homes, Inc.
V
Administrator, U.S. EPA, 37 where,
after a prolonged legal battle, a devel-
oper was able to persuade the Seventh
Circuit to vacate a Class II adminis-
trative penalty because the EPA could
not demonstrate to the Court’s satis-
faction that it had jurisdiction over the
.8 acre isolated wetland the developer
had filled. 38
One drawback of seeking an admin-
istrative penalty order is that the
agency pursuing it cannot seek the
restoration of the site. The penalty is
all that the agency can hope to obtain.
In many situations leaving the site
unrestored is unacceptable and the
agency is forced to refer the case to
DOJ if a settlement cannot be reached
that includes restoration. It is for this
reason that the agencies will often
issue a cease and desist order or a
compliance order that requires
restoration in tandem with a penalty
order. If restoration is deemed neces-
sary, then the agency can enforce the
cease and desist or compliance order
with the help of DOJ. However, if an
agency moves forward with an
administrative penalty, and then fol-
lows later with a civil action to obtain
restoration, the agency cannot seek
both administrative and judicial
penalties for the same violation. 39
B. Civil Judicial Enforcement
As mentioned above, the Corps and
EPA can pursue violators through
civil judicial enforcement if the
administrative enforcement tools do
not bring the desired result or are sim-
ply inadequate to deal with the viola-
tions. In some cases a maximum
administrative fine of $137,500 is not
sufficient to get the attention of a fla-
grant vio-
lator. In
other
cases,
restoration
is an
imperative
and civil
judicial
enforce-
ment is
the only
vehicle to achieve that end. The
Corps often goes directly to the
appropriate local U.S. Attorney’s
office to seek assistance. 4 ° The EPA
typically refers its cases to the
Environmental Defense Section of
DOJ, which is located in Washington,
D.C. Once a case arrives in Federal
District Court, the court has the
authority under the CWA to enjoin the
violator’s activities, order restoration
and assess fines of up to $27,500 per
day per violation. 41 Generally, a new
violation occurs for every day in
which an illegal fill remains on a
site. 42 Thus, penalties for wetlands
violations in Federal District Court
can be substantial. Also, the “contin-
uing-violation” approach allows
courts to grant injunctive relief even
in cases in which a fill has been in
place a significant amount of time. 43
In such cases, effectively, there is no
statute of limitations.
In calculating civil penalties, courts
often determine, as they should, the
appropriate penalty amount by calcu-
lating the maximum penalty and then
using the factors contained in Section
3 09(d) of the CWA to determine
whether a reduction is wananted.’ ’
The penalty factors are
1) “the seriousness of the
violation or violations,”
ii) “the economic benefit
(if any) resulting from the violations,”
violations,”
iii) “any history of such
iv) “any good-faith efforts
to comply with the applicable require-
ments,”
v) “the economic impact of
the penalty on the violator,” and
vi) “such other matters as
justice may require.” 45
By starting at the maximum penalty
permissible, courts make it less likely
that the environment is short-changed
in the penalty calculations. When
civil penalties will not provide the
deterrence necessary, the agencies,
with the help of DOJ, can bring crimi-
nal charges against violators, as is dis-
cussed below.
C. Criminal Enforcement
The 1987 amendments to the CWA
strengthened the criminal enforcement
provisions in the Act; now any person
who negligently or knowingly vio-
lates the CWA can be prosecuted
criminally. 46 Such violations can lead
to large fines and lengthy prison sen-
tences. 47
Criminal enforcement is usually
reserved for “egregious conduct, such
as significant environmental harm,
abusive conduct, continued illegal
conduct after warnings, and in cases
involving other serious, knowing, and
willful violations.” 48 For example,
DOJ prosecuted an individual who
ignored i) several Corps warnings, ii)
a Corps cease and desist order, and
iii) a court-ordered temporary
restraining order, all of which directed
him to stop filling a wetland he
owned. 49 The infamous Mr. Pozgai
Criminal enforcement is usually
reserved for “egregious conduct,
such as significant environmental
harm, abusive conduct, continued
illegal conduct after warnings, and
in cases involving other serious,
knowing, and willful violations.”
Fall 2003
10
Environmental Law Newsletter

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was convicted and sentenced to three
years in jail, given five years proba-
tion and a $200,000 fine, and ordered
to restore the wetland. 50
In United States v. Ocie Mills and
Carey Mills, 51 a man and his son
were sentenced to twenty-one months
in jail and one year of probation for
illegally filling a wetland. 52 Just
recently a Montana man was sen-
tenced to 33 months in jail because he
violated the terms of his probation
that he received from filling in wet-
lands near his residence. 53 And even
more recently the Sixth Circuit Court
of Appeals reinstated a criminal con-
viction in U.S. v. Rapanos. 54 On
resentencing, the violator could face a
10 to 16 month prison term based on
the offense level selected by the Sixth
Circuit.
Although these high profile cases
serve to deter people from filling wet-
lands illegally, they are often distorted
by the press and can inflame opposi-
tion to the wetlands program. 55
Furthermore, when a case is pursued
criminally the stakes are raised on
issues such as wetlands jurisdiction.
Thus, before the Corps or EPA
decides to opt for a criminal action,
the agencies weigh the pros and cons
of doing so quite carefully. If a viola-
tor sees jail time as a result of a wet-
land violation, he undoubtedly
deserved it.
Citizen Lawsuits
The CWA authorizes citizens to
pursue violators directly under
Section 505.56 Because citizen suits
are supplemental to federal actions,
citizen plaintiffs must give notice to
the alleged violator and government
officials at least sixty days prior to fil-
ing a complaint. 57 These actions can-
not proceed unless government offi-
cials decide not to pursue the enforce-
ment action. 58 These “private attor-
ney general” suits are supposed to be
aimed at protecting the environment
rather than furthering private inter-
ests. Fortunately, in most cases they
are. In such cases, the federal gov-
ernment may intervene or submit ami-
cus briefs if important general
enforcement issues arise.
Conclusion
Although many of the enforcement
authorities and options available to
the EPA and Corps are set forth in the
CWA and its implementing regula-
tions, the agencies continue to adapt
their use to the shifting landscape of
wetlands law. Factors such as how
post-S WANCC cases are decided can
weigh heavily on the future direction
of wetlands enforcement actions, as
can cases such as United States v.
Phillips, which demonstrates that fed-
eral judges are still willing to hand
out substantial prison sentences to
wetlands violators. Like the wetlands
that they protect, wetlands enforce-
ment authorities are designed to
respond to the ebb and flow of the
legal and political tides and to be as
effective as possible regardless of the
enforcement climate. ci
About the Author
Bill Sapp is the lead wetlands
attorney for Region 4 of the
Environmental Protection Agency.
He previously worked in the Army
Corps of Engineers, Office of the
Chief Counsel, as well as practic-
ing with the law firm of Alston &
Bird LLP.
Any opinions expressed in this arti-
cle are solely those of the author and
should not be attributed to the
Environmental Protection Agency or
any other government agency
discussed in the article.
Endnotes
1. The Corps and EPA have
enforcement authorities for the
Federal Wetlands Regulatory Program
in accordance with CWA § 30 1(a),
308, 309, 404(n), 404(s), 33 U.S.C.
§ 1311(a), 1318, 1319, 1344(n),
1344(s).
2. Memorandum of Agreement
Between the Department of the Army
and the Environmental Protection
Agency, Concerning Federal
Enforcement for the Section 404
Program of the Clean Water Act (Jan.
19, 1989).
3. Id. at Il.A.
4. Id. at III.D.
5. Id. at II.D.
6. Id. at II.D.
7. 33 U.S.C. § 1318.
8. 33 U.S.C. § 1344(s).
9. 33 U.S.C. § 1319(a)(3).
10. Margaret Strand, Federal
Wetlands Law: Part II, 23 Envtl. L.
Rep. (Envtl. L. Inst.) 10,284, 10,299
(May 1995).
11. Under the Federal Civil
Penalties Adjustment Act of 1990, all
administrative and judicial penalty
amounts are increased by 10 percent
for all violations that occur after
January 30, 1997. See 40 C.F.R. §
309(d).
12. Strand supra note 10 at 10,301.
13. Id. at 10,301.
14. Id. (citing Southern Pines Ass’n
v. United States, 912 F.2d 713 (4th
Cir. 1990) (no pre-enforcement
review of compliance order);
Hoffman Group, Inc. v. U.S.
Environmental Protection Agency,
902 F.2d 567 (7th Cir. 1990) (same);
McGown v. United States, 747 F.
Supp. 539 (E.D. Mo. 1990) (no
review of Corps cease and desist
order); and Fiscella & Fiscella v.
United States, 717 F. Supp. 1143
(E.D. Va. 1989) (same)).
15. A few notorious wetlands viola-
Environmental Law Newsletter
11
Fall 2003

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30. Id. § 326.6(g).
46. 33 U.S.C. § 1319(c)(1)-(3).
tors who have chosen to defy these
orders have landed in jail as a result.
See, e.g., United States v. Pozgai, No.
88-00450 (E.D. Pa. 1988), aff’d 897
F.2d 524 (3d Cir. 1990), cert. denied,
498 U.S. 812 (1990); United States v.
Ocie Mills and Carey Mills, No. 88-
03100 (ND. Fla. 1989), aff’d 904
F.2d713(llthCir. 1990).
16. 33 C.F.R. § 326.3(e).
17. See id.
18. Id. § 326.3(e)(1).
19. The 404(b)(1) Guidelines pro-
vide the substantive criteria that the
Corps must apply in determining
whether a wetlands permit should be
issued. 40 C.F.R. § 230.
20. 33 C.F.R. § 320.4(a).
21. Id. § 326.3(e)(2).
22. 33 U.S.C. § 1319(g)(1)(I 3 ); see
also 33 C.F.R. § 326.6(b).
23. 33 U.S.C. § 1319(g)(1)(A).
24. The Corps also derives penalty
authority from section 404(s) of the
CWA, but it is more limited than the
authority provided under section 309;
consequently, the Corps exercises its
section 309 authority when it issues
penalty orders. 33 U.S.C. §
1 344(s)(4), 131 9(g)( 1)(B).
25. 33 U.S.C. § 13 19(g).
26. 33 U.S.C. 1319(g)(1)(B); supra
note 11.
27. 33 U.S.C. § 1319(g)(2)(B);
supra note 11.
28. 33 C.F.R. § 326.6(b)(2)(v).
29. Id. § 326.6(b)(2)(viii)(3).
31. Id. § 326.6(j)(5).
32. Id. § 326.6(l)(2).
33. 40 C.F.R. § 22.21 & 22.50(b).
34. 40 C.F.R. § 22.21 & 22.51.
35. 33 U.S.C. § 1319(g)(8)(A), (B).
36.710F.Supp. 1105, 1108 (ED.
Tex. 1989).
37. 999 F.2d 256 (7th Cir. 1993).
38. Id. at 262.
39. 33 U.S.C. § 13 19(g).
40. Strand, supra note 10, at 10,249.
41. 33 U.S.C. § 1319(b)&(d).
42. Strand, supra note 10, at 10,302
(citing United States v. Cumberland
Farms of Conn., Inc., 647 F. Supp.
1166, 1183 (D. Mass. 1986), aff’d
826 F.2d 1151(1St Cir. 1987), cert.
denied, 484 U.S. 1061 (1988); United
States v. TuIl, 615 F. Supp. 610, 626
(E.D. Va. 1983), aff’d 769 F.2d 182
(4th Cir. 1985), rev’d on other
grounds, 481 U.S. 412 (1987); United
States v. Ciampitti, 669 F. Supp. 684
(D.N.J. 1987)).
43. See, e.g., U.S. v. Banks, 115
F.3d 916, 920 (11th Cir. 1997).
44. United States v. Marine Shale
Processors, 81 F.3d 1329, 1337 (5th
Cir. 1996), citing Atlantic States
Legal Foundation, Inc. v. Tyson
Foods, Inc., 897 F.2d 1128, 1142
(llthCir. 1990).
45. 33 U.S.C. § 13 19(d).
47. Id. The highest penalties are
reserved for violators who have
knowingly placed others in “imminent
danger of death or serious bodily
injury.” Id.
48. Strand, supra note 10, at 10,304.
49. United States v. Pozgai, 757 F.
Supp. 21, 22 (E.D. Pa. 1991), aff’d
897 F.2d 524 (3d Cir.), cert. denied,
111 U.S. 48(1990).
50. Id. The fine was later reduced
to $5,000. David Salvesen, Wetlands:
Mitigating and Regulating
Developments’ Impacts, 2d Ed., 44,
45 (1994).
51. United States v. Mills, No. 88-
03100(N.D.FIa.Apr. 17, 1989).
52. United States v. Mills, 904 F.2d
713 (11th Cir. 1990) (Sentences
affirmed).
53. United States v. Phillips, D.
Mont. (unpublished).
54. Civ. No. 02-1377, (6th Cir.
2003).
55. See, e.g., Chris Lawin, At War
Over Wetlands: Father, Son
Imprisoned After Losing Fight With
Government, ST. PETERSBURG
TIMES, Nov. 19, 1989, at 13.
56. 33 U.S.C. § 1365(a)(1), (g).
57. Id. § 505(b), 33 U.S.C. §
1 365(b)( 1 )(A).
58. Id. § 505(b), 33 U.S.C. §
I 365(b)( 1 )(B).
Fall 2003
12
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M iiag ng Tn s by Bo d chis ori
by Alec D. Van Ryan
Environmental Affairs Group
RMT, Inc
ver the years, public relations
professionals, alternate dispute
resolution gurus, defense and plain-
tiff’s attorneys, and a host of so called
communications experts have opined
on how to build, maintain, and rebuild
(if even possible) that magic pillar
known as “trust.” With the advent of
the three-headed monster of the inter-
net, talk radio, and 24-hour cable
news, protecting and cultivating trust
requires a degree of vigilance and
commitment unheard of less than a
decade ago.
The two most difficult arenas where
the concept of managing trust can be
applied are: I.) When an existing
sound reputation comes under siege,
and 2.) when a reputation needs to be
built from scratch in a limited time
frame. Interestingly, both of these cir-
cumstances share a similar and
proven trust management approach.
What is the approach? Put your com-
pany or client in a situation so open
that any misrepresentation of fact
would be blatantly obvious. Manage
trust by bold openness.
There are many examples where
this approach has both saved compa-
nies from ruin or proved to quickly
build trust where none had before
existed. One of the most famous
examples of this approach, that
worked to save a firm from impend-
ing disaster, was the infamous and
deadly tampering of Johnson &
Johnson’s Tylenol capsules in the
early 1980s.
Between Sept. 29 and Oct. 1, 1982,
seven people in the Chicago area died
after taking Extra-Strength Tylenol
that had been laced with cyanide.
Although the investigations eventu-
ally ruled out the possibility that
cyanide
had been
introduced
into the
Tylenol
capsules
during pro-
duction,
Johnson &
Johnson
initially
came under
intense
media scrutiny and wild speculation.
The stock plummeted and media
mavens were dancing around the
apparent corpse of what had bccn,
until this tragedy, one of the nation’s
most trusted names in medical prod-
ucts. What Johnson & Johnson did
next changed all the rules and set the
standard for managing trust by bold
inclusion: they welcomed in the
Trojan Horse.
Within hours of the story breaking
and the media seemingly reporting
every rumor as fact, the CEO and
Board of Directors of Johnson &
Johnson began an immediate investi-
gation into all rumors and allegations
pertaining to the manufacture and dis-
tribution of Tylenol. No new ground
here, but the brilliant twist in the
strategy that allowed Johnson &
Johnson to grab victory from the jaws
of defeat was that their CEO and
Board welcomed the media to openly
sit in any and all company meetings
concerning this tragedy. Johnson &
Johnson deliberately exposed their
company to
the kind of
risk that no
one would
take if they
intended to
deceive the
public.
And even
with a terri-
ble and
unexpected
early setback, Johnson & Johnson
staid the course. Almost immediately,
and as a direct result of this openness,
the media learned that a certain form
of cyanide was used for production of
other medications in the same build-
ing that produced Extra Strength
Tylenol. But the story did not have
“legs” (or rather it did not get a long
play) because the media also learned
about this fact at the same time as did
the company’s management. And in
real-time, the media and Johnson &
Johnson management met with line
management who together learned
that the poisoning could not have
occurred in the production process.
No possibility of “spin,” therefore no
story. The media moved on to chase
other rumors but not at Johnson &
In today’s media saturated world,
where truth and lies can travel
together at the speed of light, it has
been proven that bold and consis-
tent behavior beats a spin doctor
every time. It’s not rocket science,
but it does take courage and com-
mitment to deliberately go under a
microscope and tell the world to
have a look.
Environmental Law Newsletter
13
Fall 2003

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Johnson’s detriment. And within
weeks, the media spotlight moved
away from Johnson & Johnson broad-
ening to deal with all consumer prod-
ucts whose packaging could be tam-
pered with without detection.
Another contemporary example of
the process of becoming, and holding
onto, a “standard of truth” communi-
cation strategy involves the Alabama
Department of Transportation
(ALDOT). In cooperation with the
Alabama Department of
Environmental Management
(ADEM), ALDOT has been perform-
ing soil and groundwater investiga-
tions following the discovery of a
600+ acre trichloroethylene (TCE)
groundwater plume under residential
areas and commercial properties near
the ALDOT headquarters complex in
Montgomery, Ala. TCE had been
used at the ALDOT Materials and
Testing Lab to test and verify the
quality and contents of road construc-
tion materials.
ALDOT performed an initial series
of investigations at the site before
entering into a Voluntary Assessment
Agreement with ADEM. ALDOT is
also under a settlement decree follow-
ing a related lawsuit concerning this
plume. ALDOT knew what it was
like to be in the public eye. New
roads, old potholes, easements and
right-of-way battles have routinely
attracted outspoken criticism. And
now a 600+ acre TCE groundwater
contamination plume put them on
track for yet another dose of public
distrust and confrontation.
From the very beginning, ALDOT
decided that it wanted to earn and
maintain a standard of trust with the
potentially impacted communities.
Yet unlike some companies and pub-
lic entities that come under intense
scrutiny, ALDOT did not view the
concept of community involvement
issues as a “necessary unpleasant-
ness.”
Taking a page from Johnson &
Johnson as well as industry’s commu-
nity advisory panel (CAP) approach-
es, ALDOT developed a means to
quickly build trust by direct, bold, and
real-time community involvement in
the investigation and eventual cleanup
of this contamination. That objective
was the driving force behind the con-
ception and formation of a
Community Outreach Group (COG).
The COG’s design was clear and
simple: up to nine individuals, all rep-
resentatives from the impacted com-
munity, would be openly involved in
the actual technical planning and
implementation of the plume assess-
ment and remediation. The COG rep-
resentatives would come from a pool
of nominees proposed by the impact-
ed communities’ themselves and
selected by an impartial panel. There
were not even restrictions to plaintiffs
serving on the COG; the primary stip-
ulations were that COG members
commit the time necessary to attend
about one meeting a month and live
in, or have interests in the potentially
impacted neighborhoods.
ALDOT arranged for a facilitator
and provided meeting space. The ini-
tial few meetings were devoted to
COG members being brought up-to-
date on the project and personally
meeting with the technical team and
regulatory agency personnel. The
COG was given free reign as to what
subject they wanted to discuss or
learn more about.
To encourage community interac-
tion, the name of each member of the
COG was listed on the ALDOT proj-
ect web page and members were pro-
vided with special business cards
indicating their involvement on the
COG Not only are COG members
encouraged to attend all public meet-
ings on the project, they are part of
the presentation preview team so they
see and comment on the presentations
before they go out to the public.
By making the investigation and
eventual remediation process a true
open dialog between ALDOT and the
impacted community through the
COG , both entities place themselves
in the position of being so open that
any misunderstandings or miss expec-
tations are quickly made apparent and
therefore promptly addressed.
Barriers to building and maintaining
trust are significantly reduced.
There are many more examples of
similar success stories. These two
examples demonstrate that in today’s
media saturated world, where truth
and lies can travel together at the
speed of light, it has been proven that
bold and consistent behavior beats a
spin doctor every time. It’s not rocket
science, but it does take courage and
commitment to deliberately go under
a microscope and tell the world to
have a look. The view may not
always be pretty but it can make the
difference between standing on a pil-
lar of trust or trying to dig your way
out of a pit of suspicion. u
About the Author
Alec D. Van Ryan serves as
Strategic Issues Management and
Environmental Affairs
Consultant with RMT, Inc.
Fall 2003
14
Environmental Law Newsletter

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Endnotes
Continued from page 9
for local governments trying to revise
their ordinances to conform to the
Phase II General Permits. Ideally, the
legislature should have directed EPD
to develop a model ordinance for
local governments that would mirror
the Phase II General Permits.
15. Local issuing authorities have
the ability to issue and enforce LDA
permits under a local ordinance to
parties engaging in construction activ-
ities disturbing one or more acres of
land, with some exceptions for State
and federally-regulated entities such
as DOT and utility companies.
16. See O.C.GA. § 12-7-19 and
definition of “qualified personnel”
under the Phase II General Permits.
17. See O.C.GA. § 12-7-30 for
details about the composition and
responsibilities of the Board. The
members of the Stakeholder Advisory
Board have not yet been appointed.
Comments of Larry Hedges, Program
Manager for the EPD Water
Protection Branch’s Nonpoint Source
Program, DNR Board meeting, Aug.
19, 2003.
18. BMPs are described in § 12-7-
6(b) of the E&S Act. In addition,
BMPs are defined in the proposed
E&SC Rules as “a collection of struc-
tural measures and vegetative prac-
tices which, when properly designed,
installed and maintained, will provide
effective erosion and sedimentation
control and are designed in accor-
dance with the design specifications
contained in the ‘Manual for Erosion
and Sediment Control in Georgia.”
19. The fee system will be estab-
lished by amendment to EPD’s WQC
Rules, which should be adopted by
the Board in October 2003.
20. EPD estimates the fees will
generate about $5 million per year,
which will enable EPD to hire about
eighty additional inspectors, begin-
ning in mid 2004. Comments of
Lany Hedges, DNR Board meeting,
Aug. 19, 2003.
21. On June 26, 2003, EPD issued
the three Phase II General Permits for
public comment. The public had the
opportunity to submit comments until
July 29, 2003. EPD also held a pub-
lic meeting and hearing on that day.
22. “Common development” is
defined as a contiguous area where
multiple separate and distinct con-
struction activities may be taking
place at different times on different
schedules under one plan of develop-
ment or sale.
23. See 2003 Response to
Comments Letter for Construction
Activities, found on EPD’s web site
(see n. 1 above).
24. These reduced monitoring
events were the result of intense
negotiations between EPD and the
stakeholders in the GPAC. The
expired Phase I General Permit
required permittees to sample storm
water runoff after certain storm events
exceeding V 2 inch, 1 inch and 2 inches
of rainfall.
25. In general, permittees must take
an upstream and downstream sample
of each “receiving water,” “outfall,”
or a combination of receiving waters
and outfalls. “Receiving waters”
means “waters of the State supporting
warm water fisheries, or waters of the
State classified as trout streams, into
which the runoff of storm water from
a construction activity will actually
discharge, either directly or indirectly.
“Outfall” means “the location where
storm water, in a discernible, confined
and discreje conveyance, leaves a
facility or site, or if there is receiving
water on site, becomes a point source
discharging into that receiving water.
However, under the Infrastructure
Permit, the permittee is not required
to sample each stream or outfall if the
design professional preparing the
ES&PC Plan certifies that an increase
in the turbidity of a specific receiving
water to be samples will be represen-
tative of the increase in turbidity of
other receiving waters not to be sam-
pled.
26. “Mass grading” is defined as
the movement of earth by mechanical
means to alter the gross topographical
features (elevations, slopes, etc.) to
prepare a site for final grading and the
construction of facilities (buildings,
roads, parking, etc.).
27. Note that under Part lll.C.l of
the Phase II General Permits, proper
design, installation and maintenance
of BMPs constitutes a complete
defense to an enforcement action
brought for alleged noncompliance
with the Permits.
28. According to the proposed
E&SC Rules, fees must be paid
before land disturbance occurs, with
the exception of projects occurring
between Aug. 13, 2003 and Dec. 31,
2003. Payments for projects occur-
ring within this time period are due
by Jan. 31, 2004.
29. Because it is not clear whether
these offices have been charged with
the task of reviewing ES&PC Plans,
the purpose of sending the Plans to
the local District office seems to be to
increase public awareness of con-
struction projects in the area.
Environmental Law Newsletter
15
Fall 2003

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Officers
Chair
E. Peyton Nunçz
1398 Brookhaven Village Circle
Atlanta, GA 30319
peynunez@comcast.net
Chair-e1ëct
Susan H. Richai dsoñ
Kilpatrick Stocktdn LLP
1100 Peachfree Street
Suite 28 0’
Atlanta, GA 30309
• Ph: 404:8.15:6330
Fax:404.815.6555
suiichardson@kilpafrickstocktoacom
Secretary & Editor
Jeffrey S: Dehner
Hartman, Simons, Spielman &
Wood, LLP
6400 Powers Ferry Road, N.W.
Suite 400
Atlanta, Georgia 30339
Ph: 770.951.6577
Fax: 770.303.1150
jdehner@hssw.com
Treasurer
Christopher A. Thompson
Powell Goldstein Frazer &
Murphy LLP
191 Peachtree Street
16th Floor
Atlanta, GA 30303
Ph: 404.572.6974
Fax: 404.572.6999
cthompson@pgfth.com
Member-at-Large
Charles S. Conerly
Smith Diment Conerly, LLP
119 Maple Street
Suite 315
Carrolton, GA 30117
Ph: 770.838.0100
Fax: 770.838.1198
State Bar of Georgia
104 Marietta Street, NW
Suite 100
Atlanta, Ga 30303
- E vo me 1taO Law Sec o
NON-PROFIT ORG
US POSTAGE
PAID
ATLANTA GA
PERMIT NO 1447

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