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 ------- 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 ------- 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 ------- I ------- n .•ç ,;:; L J I ------- 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) ------- 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 ------- 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 ------- 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 * * * ------- 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 ------- 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 ------- 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 . ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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. ------- 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, ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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; ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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) . ------- 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. ------- 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 ------- 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 ------- 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 ------- 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 ------- 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. ------- 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 ------- 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 ------- 2 ------- ------- 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— ------- 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 -2- ------- 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, -3- ------- 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. -4- ------- 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. -5- ------- 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 -6- ------- 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. -7- ------- 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 -8- ------- 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 -9- ------- 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, -10- ------- 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 —11- ------- 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 -12- ------- (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 -13- ------- 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. -14- ------- 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 -15- ------- 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 -16- ------- 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 -17- ------- 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 -18- ------- 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 -19- ------- 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 -20- ------- 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 -21- ------- 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 -22- ------- 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, -23- ------- 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. -24- ------- 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 -25- ------- 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. -26- ------- (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 -27- ------- 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, -28- ------- 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 -29- ------- 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 -30- ------- 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 -31- ------- 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 -32- ------- 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 ------- 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, ------- 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, ------- 1994 Federal Register/Vol. 68, No. 10/Wednesday, January 15, 2003/Proposed Rules 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 ------- Federal Register / Vol. 68, No. 10/ Wednesday, January 15, 2003 / Proposed Rules 1995 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 ------- 1996 Federal Register / Vol. 68, No. 10/ Wednesday, January 15, 2003 / Proposed Rules 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 ------- Federal Register / Vol. 68, No. 10 / Wednesday, January 15, 2003 / Proposed Rules 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 ------- 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. ------- 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 : ------- 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 : ------- 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 ------- 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 ’ ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ) ------- 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) ------- 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” ------- 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 : ------- 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 ------- 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. ------- .! ‘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 ------- c a k (& () -* -- St v 1 a ( V. J n 7 M w/ i ’I J V t.k - ‘1 4 4s. i; 51 vcd I j Ø I t 0L1 ‘ — ! (tj ( $ /&t t( , 1 tJe 4 ( -t 5&i’ s I ts r o 7f (MJj ci/ I/us -R 4 4 q - D ‘L S vv 6V€ k c r1? 5 y$ r $ 1 ec4ft - 4s ry 2 - wQtt4c ‘J l v ktk {S. 3fV s i çp w A ? US -S 5 W - 4 7 ; j J L ‘r ’s tO vv o’ft 4 o to(v (d ( t -. ------- 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 ------- 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. ------- 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 ------- Page 4 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 ------- Page 5 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 ------- Page 6 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 ------- Page 7 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 ------- Page 8 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 ------- Page 9 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 ------- 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 ------- 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’ ------- 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 ------- 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 ------- 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. ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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. ------- 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 ------- 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 ------- 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 ------- 3 ------- r 2t 1 1 1 ------- 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 ------- 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. ------- 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 ------- 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 ------- 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 ------- 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 ------- 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: ------- 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 ------- 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 ------- 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 ------- 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.) ------- 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) ------- 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 ------- 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 ------- 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. ------- 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 ------- 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. ------- THE FACTS ABOUT SJLVICULTtJRAL ACTIVITIES IN WETLANDS Region IV 345 Couriland St., NE Atlanta, GA 30365 (404) 347-2126 ------- 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. ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 Iof4 - 2/3/2003746AM ------- WAIS Document Retrieval hup /Ifrwebgate access gpo gov/cgi-bin/. 0&PART=232&SECTION3&YEAR=2002&TYPE=TEX1 [ [ 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 2of4 2/3/2003 7 46 AM ------- WAIS Document Retneva hup //frwebgaie.access gpo govlcgi-brni. 0&PART=232&SECTION=3&YEAR=2002&TypETEX1 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. 3of4 2/3 20O3746AM ------- WAIS Document Retneval http //frwebgate access gpo gov/cgi-bml O&PART=232&SECTION=3&YEAR=2002&TYPE=TExT (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. 4of4 213/2003746AM ------- WAIS Document Retrieval httpf/frwebgate access gpo gov/cgi brnI .0&PART=232&SECTION=2&YEAR=2002&TYPE=TEX [ 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 1o15 2/3/2003745AM ------- WAIS Document Retrievai http //frweb gate access gpo govlcgi-bin/ .O&PART=232&SECTION=2&YEAR=2002&TYPE=TEXT 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 2o15 2/312003745AM ------- WAIS Document Retrieval http //frwebgate access gpo gov/cgi-bin/ 0&PART=232&SECTION=2&YEAR=2002&TYPETEXT 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 3o15 2I3 2003745AM ------- WAIS Document Retrieval http //frwebgate access gpo gov/cgi-bin/ 0&PART=232&SECTION=2&YEAR=2002&TYPE=TExT 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 4of5 213/2003745AM ------- WAIS Document Retrieval hup //frwebgate access gpo gov/cgi-bin/. .O&PART=232&SECTION=2&YEAR=2002&TYPETEX1 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] 5of5 21312003745AM ------- 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. ------- 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 ------- 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. ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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. 11 ------- 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. 12 ------- 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. 13 ------- 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. 14 ------- 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. 15 ------- 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. 16 ------- 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. 17 ------- 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. 18 ------- 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. 19 ------- 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 20 ------- 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). 21 ------- 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. 22 ------- 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. 23 ------- 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). 24 ------- 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. 25 ------- 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 ------- 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 ------- 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. 28 ------- 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 29 ------- 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 ------- 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. ------- 4 ------- ll llPO T gkqo ------- . 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 ‘:U1 TI 3 —cJ1C— —’ 1J- - ------- 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 ------- 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 9 d 21 tdQft1t3d-d9Q - - j 3 L1Cd. 81 r t’66 -9O-t1 f ------- 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 USD.4JEPAJDOIL4mq 1404 C cuwh,g &s D sesWc.u g’ Wml á Pai 8 for Cleaii Wale 4aIS , 404 sd Pond $ag i .I lSuh ” B P1d rC t’I ------- 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 ------- 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 Icy Clawi W AaIS 401 d Poad S. .. j .4uiS ,P*41 9t d ØES .P PI PIB L OJ . 1t3d_d1C- 3 WGd E t1 -9 J—N f ------- 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 USDA /EPA /DOIiAr w M 4 C .uc.mè g ths C ie 4 E in,á for Clean W Aa/S.c av, 404 .sd 1o4 S. j1, Aa1S- S Pap! 1 t/(f?sl / d P2t Jt 6 01 .011 3d-d9O 3 W0d. S : t 66-9 2-t1 f ------- 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 2 d P •l ------- 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 fo Clean V/au, Aa/S* ri 404 d Pocd £ Au/ l’ B 80 d P P ’I6 oI r 3d-d1C—t 3 b P 6i-9 —14t1 ------- 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 USDA/LPAIDOIL4, ’ ,rj MOA Coac.es ds. D. .mioui of W.dw’4v Pp 3 foi Claa* W r Aci/Spg cus 404 Poo’ 5 ,*j ’ 4cv/Sa” B 6 d S .P P2V 6 I ii’:±i 0? tt t-e6:-9@—N 1 ------- 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. USZL4JEPAJDOU4muy MCbI Caic.nàg th. r im.o .i q’ W-”--dr p, 4 4 Jo, C1au Waa’ AcZlSrkw 404 ad Food 4cs/S’ v 3 td . L ‘ Oi TI 3d—d1O 3 Wid y ------- 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 . USDAJFJAJDOILArnr MO4 C w uL’ig thi 4 Wv 1 — ’ P . S fc, Ckeis Wau Aa/S.r*ii 401 .id Foad S. erW AdJS’ 8 ttd t’ IE II J-J —- ------- 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. USDAJFJAIDOTh4nay MOl Ccsc.,iiag *1w D. ,s q’ Wggin,á Pq 6 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 ------- 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. USD.4IEPAJDOI1Anw MOA Cerccar ,g th. Ddàsaeree q’ Wed .di Pqi 7 for.Cka Watu 4a/S. ’ri 404 d Feed S. e*, 4crISa.b 8 :i 1i 3d—.J1C-- 3 I1C d £ . t t’€ .E - —‘i ------- 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 ------- 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 ------- 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, ------- 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. ------- 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 ------- 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. ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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. 4 January, 1998 ------- 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 ------- 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. 6 January, 1998 ------- 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 ------- 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. 8 January, 1998 ------- 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 ------- 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 ------- 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 ------- 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. 12 January, 1998 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 5 ------- ------- 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 ------- 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”: ------- 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 ------- Section 404 Field Investigation Report Form (page 4) ADDITIONAL NOTES. _____________________________________ ------- 6 ------- llllMPO W ff O L Sr ------- 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 ------- 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 ------- 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. ------- 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. ------- 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 ------- 7 ------- IIkIIO ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- . 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 ------- • 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 Environmental Law Newsletter ------- 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 ------- © 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 ------- 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 ------- 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 ------- 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 Fall 2003 ------- 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 ------- 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 ------- 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 Environmental Law Newsletter ------- 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 ------- 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 ------- 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 ------- 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 ------- |