Association of State Wetland Managers - Protecting the Nation's Wetlands.

Salameander: Navigable, Adjacent, Assumable Waters? We need to distinguish between assumable and jurisdictional waters of the United States.

Salameanderby Peg Bostwick, ASWM

I recently had the opportunity to represent the Association of State Wetland Managers in a meeting with wetland program representatives from Alaska and Oregon to discuss their potential assumption of the §404 wetland permit program.  Michigan and New Jersey were also included to share their 404 experiences.   Among other issues, we discussed the barriers that have limited404 Program assumption by the states, contrary to Congressional expectations in 1977.

It is clear from Congressional records that lawmakers anticipated routine 404 assumption by states, in a manner parallel to the NPDES program.  Congress not only expected that states would be willing and able to take responsibility for regulation of headwater and “interior” waters and wetlands, but also recognized that states – with their inherent land use authority – would be especially well-positioned to integrate land and water management.  However, more than 30 years after Congress authorized states to administer their own wetland programs in lieu of the federal permit program, only Michigan and New Jersey have completed the assumption process.

Of the several barriers to assumption, one in particular – the scope of state jurisdiction under an assumed program – has special relevance during review of EPA’s Science Advisory Board report on the Connectivity of Streams and Wetlands to Downstream Waters, and anticipated rulemaking on the scope of federal jurisdiction.   This is because over the past thirty years, various legal rulings have clouded the legal terminology that defines what waters can be included in a state assumed 404 Program (i.e. “assumable waters”) in addition to the extent of waters that are regulated under the Clean Water Act.

The Clean Water Act allows for assumption of the §404 Program by,

“..any State desiring to administer its own …permit program for the discharge of dredged and fill material into the navigable waters (other than those waters that are presently used, or are susceptible to use…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…including wetlands adjacent thereto…).” -CWA §404(g)

This clause includes two important limitations on assumption.  The Corps of Engineers must retain jurisdiction over (1)waters used to transport interstate or foreign commerce, and (2) wetlands adjacent to these waters.  Given uncertainty regarding the legal meaning of both “navigable” and “adjacent”, these limits are open to interpretation.

In 1977,Congress explained that states would be allowed to regulate “navigable waters other than traditional navigable waters” [1]– a phrase that helps only a little in the context of recent U.S. Supreme Court decisions that have rested heavily on the term “navigable waters” in defining the limits of federal jurisdiction.  More helpful was a statement in the legislative history explaining that non-assumable waters include the “Phase I” “traditional navigable waters” defined in regulations promulgated by the Corps of Engineers in 1975. [2]By contrast, other (assumable) waters listed in these regulations included primary tributaries of navigable waters, natural lakes over 5 acres, and adjacent wetlands (Phase II); and other waters up to the headwaters, and adjacent wetlands (Phase III).

Neither Michigan (in 1984) nor New Jersey (1993) had any significant difficulty in defining assumable waters.  The Corps of Engineers retained jurisdiction over the traditionally navigable waters that it had regulated under §10 of the Rivers and Harbors Act, including the Great Lakes in Michigan, tidal waters in New Jersey, and some major river mouth areas in both.  On the other hand, many lakes, rivers, and streams that are clearly “navigable” under a broader definition have been routinely regulated by these state 404 Programs.

The Michigan Princess on waters of the Grand River near Lansing, MI, an area regulated under Michigan’s 404 Program.

Unfortunately, the extent of assumable waters is less clear for states considering §404 assumption at the present time.   In the muddied vocabulary defining waters of the U.S. as navigable waters under the Clean Water Act, the Corps of Engineers is understandably concerned that if waters are not defined as “navigable”, then the federal government will lose regulatory control.   Yet clearly, Congress intended that the states be able to take over the regulation of “navigable” interior waters.   This issue must be clarified.

In addition to the question of navigable waters, states must contend with the definition of “adjacent” wetlands – both to determine the extent of assumable waters, and to compare the extent of jurisdiction under their own state law and the Clean Water Act.   Use of the term “adjacent” for both purposes causes confusion.   In terms of the original limit on assumption, it appears that Congress meant to ensure that the Corps maintains clear authority to protect navigable channels  including immediately adjacent wetlands along the shore of those waters; placement of physical structures on foundations along the shore, or excavation of immediately adjacent wetlands, could impact the physical integrity of the navigation channel.

However, as used in determining the extent of Clean Water Act jurisdiction post Carabell/Rapanos and SWANCC, the term “adjacent” has been used to define wetlands that exist at a significant distance from stream channels (but that have some sort of connection with those waters).  Use of this term in various parts of the nation is far from consistent, and for that matter, the term “adjacent” applied in the context of state assumptionis inconsistent in the conflicting opinions rendered by the U.S. Supreme Court in the Rapanos case.

For wetland rich states such as Florida, an enormous percentage of wetlands might be considered “adjacent to navigable waters”.  Drawing a boundary defining continued Corps jurisdiction under an assumed program would not only require difficult case-by-case decisions by the Corps, but could leave the state with little to assume.  This does not appear to mesh with Congressional intent.

The Florida Everglades

Anticipated rulemaking regarding Clean Water Act jurisdiction offers an important opportunity to simultaneously explain the extent of waters that are assumable under §404(g).   Given the experience of Oregon and Alaska, I would strongly encourage clarification of the terms “navigable” and “adjacent” for this purpose.  Specifically, the new rules should clarify that – for purposes of defining non-assumable waters in accordance with §404(g) – the term “navigable” includes only traditionally navigable waters (such as tidal waters, the Mississippi River, or the Great Lakes) which support interstate or foreign commerce and that were regulated by the Corps of Engineers under Phase I of their 1975regulations.   Waters defined under Phase II and III of the 1975 Corps regulations should be assumable by the states in accordance with legislative history.

Likewise, I would suggest that –for purposes of defining limits on assumable waters under §404(g) – the term “adjacent” wetlands refer only to immediately connected wetlands necessary to maintain the physical integrity of traditionally navigable waters that support interstate and foreign commerce.   The Corps of Engineers and a state that wishes to assume administration of the Section 404 Program should be allowed to agree on a readily identifiable boundary between state-assumed waters and retained Corps jurisdiction based on a fixed buffer area, such as 500 or 1000 feet from the shoreline of the navigable water.

Clarification of the distinction between the extent of “assumable” waters by states and the extent and limits of Clean Water Act jurisdiction would remove one significant barrier to state program assumption.   Relative to the complexity of some other Clean Water Act issues, this appears to require a relatively simple and straightforward definition of terms – and I hope that EPA takes advantage of this opportunity during rulemaking.

To review the SAB report, click here.

For additional information regarding the SAB report and proposed rulemaking, or to find out how to comment on the report, click here.

For more information regarding state 404 program assumption, click here.

[1]A Legislative History of the Clean Water Act of 1977: Volume 3. Conference Report page 349

[2] Ibid, page 347-348

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