31 ELR 10508 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Navigating Federalism: The Missing Statutory Analysis in Solid Waste Agency

Associate Professor of Law, Western New England College School of Law, Springfield, Mass.; J.D. 1996, Lewis & Clark School of Law; Ph.D. 1993, University of California; M.A. 1986, The Johns Hopkins University. The author may be reached by e-mail at rcraig@law.wnec.edu or through her website at http://wneclaw.wnec.edu/faculty/craig/default.html. I am indebted in this paper to Sarah Miller, one of my independent study students, for her intellectual curiosity and determination to write about the ocean-related provisions of the CWA, which first got me thinking about CWA jurisdictional distinctions and federalism.

[31 ELR 10508]

For the last several years, federal circuit courts¹ have debated the exact jurisdictional scope of § 404 of the Clean Water Act (CWA),² which authorizes the Secretary of the U.S. Army (the Army), acting through the U.S. 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."³ The circuit courts have based their debates on the assumption, well-supported by earlier CWA decisions, that Congress intended the term "navigable waters" within the CWA to extend to the limits of the U.S. Commerce Clause.⁴ This interpretation of "navigable waters" gives the agencies that administer the CWA⁵ much broader jurisdiction over water pollution than federal agencies have traditionally exercised through other statutes focused on "navigable waters," such as the Rivers and Harbors Act of 1899.⁶ It also rather immediately requires courts to assess CWA jurisdiction in terms of the ordinary constitutional Commerce Clause analysis.

The factual basis for the most recent debates on the Corps' CWA jurisdiction has been the Corps' assertion of jurisdiction over isolated wetlands through the so-called migratory bird rule. Pursuant to the migratory bird rule, the Corps claimed jurisdiction over isolated wetlands—that is, wetlands with no direct hydrological connection to other waters—if those wetlands served as habitat for birds protected by the Migratory Bird Treaty Act, birds that migrated across state lines, or endangered species.⁷ As such, the migratory bird rule clearly dispenses with any traditional "navigable waters" requirement that the subject waters be navigable in fact or subject to the ebb and flow of the tide.

The absence of traditional navigability, however, has not been a concern to the circuit courts. Instead, the circuits split over the Corps' application of the migratory bird rule as a result of a constitutional question: does federal jurisdiction over isolated wetlands based solely on the migratory bird rule violate the interstate Commerce Clause, as the U.S. Supreme Court has most recently interpreted that clause?⁸

Therefore, when the Supreme Court finally granted certiorari to one of these circuit court decisions, the expectation was that it would decide the Commerce Clause legitimacy of the migratory bird rule. Instead, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,⁹ the Supreme Court invalidated the migratory bird rule on statutory grounds, finding that the Corps had exceeded its authority and, implicitly, congressional intent by extending its CWA jurisdiction so far beyond waters that are themselves traditionally "navigable." Part of the basis for the Court's decision was the federalism concern inherent in extending federal jurisdiction over internal waters, a fear that the migratory bird rule "alters the federal-state framework by permitting federal encroachment upon a traditional state power."¹⁰

In giving effect to this federalism concern, however, the Court not only undermined a pervasive view that CWA jurisdiction extends to the limits of the federal government's Commerce Clause power, it also ignored statutory evidence that the CWA's use of "navigable waters" cannot be read in traditional terms of navigability and that Congress was clearly aware of federalism concerns in the Act's statutory scheme. In the CWA, in fact, "navigable waters" acts not as a designation of waters that are physically capable of supporting navigation and navigation-dependent commerce, i.e., waters traditionally subject to dominant federal interests, but instead as a short-hand description of the states' [31 ELR 10509] sphere of regulatory jurisdiction. Examined in context, "navigable waters" in the CWA designates the geographic areas already largely under state control and over which states may obtain CWA regulatory authority. In contrast, the CWA explicitly distinguishes the "ocean" from "navigable waters," giving states absolutely no regulatory authority more than three miles out to sea. This division of jurisdiction parallels almost perfectly the normal jurisdictional division between the state and federal governments over internal, coastal, and ocean waters.

The text of the CWA thus strongly indicates that Congress has already considered the demands of federalism and drawn jurisdictional lines that preserve "traditional state power"—so long as the states adopt Congress' vision of water quality protection. The assertion of this vision, therefore, must rest on Congress' Commerce Clause authority, and the Supreme Court contradicted congressional intent in Solid Waste Agency as a direct result of confining its statutory analysis almost exclusively to § 404. By almost completely destroying the larger statutory structure of the CWA and definitional context of § 404 from its analysis, as well as the long and convoluted legislative history of water pollution regulation, the Supreme Court impressed its own sense of federalism into the text of the CWA, ignoring and contradicting Congress' own complex but rational scheme for dividing state and federal regulatory authority to protect the nation's waters.

Background: The CWA, Riverside Bayview, and the Migratory Bird Rule

The Structure of the CWA, § 404, and the Migratory Bird Rule

In 1972, Congress enacted the Federal Water Pollution Control Act, renamed the CWA in 1977 Amendments,¹¹ in order "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."¹² Specifically, Congress established national goals and policies to eliminate "the discharge of pollutants into the navigable waters . . . by 1985"¹³; "to provide interim water quality that protect fish, shellfish, wildlife, and recreation"¹⁴; to prohibit discharges of toxics¹⁵; to support the research necessary to achieve these goals¹⁶; and to develop programs for controlling nonpoint source pollution.¹⁷ Thus, the CWA undeniably establishes water quality as a national issue.

At the same time, however, Congress remained conscious of the role of the states in achieving the national water quality goals.

It is the policy of the Congress 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, and to consult with the Administrator in the exercise of his authority under this chapter.¹⁸

Consistent with this policy, Congress specifically announced that "it is the national policy that Federal financial assistance be provided [to States] to construct publicly owned treatment works"¹⁹ and that "it is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of pollutants in each State."²⁰

The heart of the CWA's regulatory scheme is § 301, which establishes that "except as in compliance with this section and sections [402 and 404] of this title, the discharge of any pollutant by any person shall be unlawful."²¹ The Act explicitly defines "discharge of a pollutant" to be "(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or floating craft."²² It further defines "pollutant" very broadly,²³ while a "point source" is "any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged."²⁴ Thus, in general, the addition of almost anything from a human-made or human-controlled source into the navigable waters, the contiguous zone, or the ocean triggers the CWA's coverage.²⁵

As § 301 indicates, however, the CWA also provides dischargers means of complying with the Act. In particular, the Act establishes two major permit programs, one administered by the U.S. Environmental Protection Agency (EPA) and one administered by the Corps. The more extensive of the two permit programs is the national pollutant discharge [31 ELR 10510] elimination system (NPDES) permit program that EPA administers through § 402 of the Act.²⁶ Under that section, the Administrator of EPA "may, after opportunity for a hearing, issue a permit for the discharge of any pollutant, or combination of pollutants," so long as the Administrator ensures that the discharge meets the other requirements of the Act, such as effluent limitations, new source performance standards, limitations on toxic discharges, pretreatment standards, and ocean discharge criteria.²⁷ Because the NPDES permit program applies to "discharges of pollutants," it applies to almost all types of human-controlled, water-polluting activities in all types of waters.

In contrast, the Corps administers a much more limited permit program, the § 404 "dredge and fill" permit program. Under § 404, the Secretary of the Army, "acting through the Chief of Engineers,"²⁸ "may issue permits . . . for the discharge of dredged or fill material into the navigable waters at specified disposal sites."²⁹ In comparison to the NPDES permit program, therefore, the Corps' authority is limited in terms of both the activities it regulates and the waters over which it has jurisdiction. Moreover, the Administrator of the EPA retains the authority to veto any § 404 permit if a particular discharge of dredged or fill material "will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas."³⁰

Given the Corps' limited permitting authority, definitions of the key terms in § 404 become crucial to its permitting jurisdiction. The CWA defines "navigable waters" to be "the waters of the United States, including the territorial seas."³¹ While it further defines "territorial seas" to be "the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea . . . and extending seaward a distance of three miles,"³² it fails to define "waters of the United States" or "discharge of dredged or fill material." Instead, the Corps has defined these terms in regulations.

Under the Corps' definitions, "dredged material" is "material that is excavated or dredged from waters of the United States,"³³ while the "discharge of dredge material" is "any addition of dredged material into, including any redeposit of dredged material within, the waters of the United States."³⁴ "Fill material," in turn, is "any material used forthe primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody,"³⁵ and the "discharge of fill material" is "the addition of fill material into waters of the United States."³⁶ Given these definitions, most construction in and around waters of the United States requires a permit from the Corps.

EPA and the Corps agree that "waters of the United States," as used in the CWA, is a broad term. Since 1977, their regulations have defined "waters of the United States" to be

(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 subject to the ebb and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (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 recreation 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 purpose 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;

[31 ELR 10511]

(8) Waters of the United States do not include prior converted cropland . . . .³⁷

This definition emphasizes that EPA and the Corps perceive their CWA regulatory jurisdiction to be closely tied to interstate commerce. In particular, subsection (3) quoted above explicitly ties CWA jurisdiction over intrastate waters to those waters' use or susceptibility to use in interstate commerce. The federal courts have also achieved a wide consensus that Congress intended the CWA's jurisdiction to extend to the limits of Congress' constitutional Commerce Clause powers.³⁸

In 1986, at the urging of EPA, the Corps again emphasized that its § 404 jurisdiction is intimately connected to the Commerce Clause by endorsing the so-called migratory bird rule in revisions to its § 404 regulations. In the preamble to those regulations, the Corps noted:

EPA has clarified that waters of the United States at 40 C.F.R. 328.3(a)(3) also include the following 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.³⁹

Because the § 404 permit program deals with the dredging and filling of navigable waters, and thus with the actual methods used in and location of construction near navigable waters, it is widely perceived to intrude on land use and land use planning far more than the NPDES permit program, which regulates "end of the pipe" limits on how many pollutants a business or facility can put into the navigable waters, the contiguous zone, or the ocean—not where or how the business is conducted. Jurisdictional challenges to the Corps' authority have been many and created the context for the Supreme Court's most recent decision in Solid Waste Agency.

Riverside Bayview Homes and Adjacent Wetlands

In 1985, the Supreme Court decided United States v. Riverside Bayview Homes, Inc.,⁴⁰ which involved a challenge to the Corps' authority to require a § 404 permit for the filling of wetlands. Specifically, the case "presented the question whether the Clean Water Act . . . authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetland adjacent to navigable bodies of water and their tributaries."⁴¹ Riverside Bayview Homes owned 80 acres of marshy land next to a lake that it began to fill in 1976 in order to construct a housing development.⁴² The Corps insisted that Riverside Bayview Homes get a § 404 permit on the grounds that the marshy areas were "adjacent wetlands" under its regulations.⁴³

The Supreme Court considered two questions in its analysis of the case; "whether respondent's property is an 'adjacent wetland' within 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 material into such a wetland."⁴⁴ In addition, the Court also considered the Sixth Circuit's "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."⁴⁵

The Court first addressed the Fifth Amendment argument. Noting that "we have made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking,"⁴⁶ the Court had no trouble concluding that a narrow construction of the Corps' authority was unnecessary.

So long as compensation is available for those whose property is in fact taken, the governmental action is not unconstitutional. . . . 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 . . . it merely frustrates permissible applications of a statute or regulation.⁴⁷

As a result, the Court refused to construe the CWA and the Corps' regulations narrowly, referring to the Fifth Amendment issue as "spurious constitutional overtones."⁴⁸

The Court next turned to the issue of whether the Corps' regulations did indeed apply to Riverside Bayview Homes' property. Riverside Bayview Homes argued that in order to qualify as a wetland, its property would have to be subject to inundation or frequent flooding by the adjacent navigable waters.⁴⁹ The Court, however, noted that the Corps' "regulation extends the Corps' authority under § 404 to all wetlands adjacent to navigable or interstate waters and their tributaries" and that the Corps had defined "wetlands" "as lands that are 'inundated or saturated by surface or ground water at a [31 ELR 10512] 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.'"⁵⁰ The plain language of the regulation, the Court declared, refuted the argument that inundation or frequent flooding was required because "saturation be either surface or ground water is sufficient to bring an area within the category of wetlands, provided that the saturation is sufficient to and does support wetland vegetation."⁵¹ Moreover, the history of the Corps' regulations also supported this conclusion, because the Corps specifically deleted any reference to "periodic inundation" in the 1977 revisions to these regulations.⁵² Given the district court's findings that the requisite vegetation existed, that Riverside Bayview Homes' property was saturated by groundwater, and that the wetland was adjacent to a body of navigable water, the Court concluded that Riverside Bayview Homes' property was indeed covered by the Corps' regulation.⁵³

This conclusion left the Court with the issue of whether the CWA actually authorized the Corps' regulations. The Court accorded the Corps Chevron deference, emphasizing that "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."⁵⁴ As such, the Court saw its review as "limited to the question of 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.'"⁵⁵ Moreover, it expressly noted that "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 . . . and we do not express any opinion on that question."⁵⁶

The Court began its statutory analysis by noting that it might seem unreasonable at first blush to classify wetlands as "waters of the United States."⁵⁷ However, it quickly acknowledged that, realistically, it can be difficult to draw the line between land and water.

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 find the limit of "waters" is far from obvious.⁵⁸

Given the CWA's ambiguity regarding "waters of the United States," the Court upheld the Corps in looking to the purposes, goals, and legislative history of the Act for guidance. First, the Court noted that "section 404 originated 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.'"⁵⁹ Second, according to the Act's legislative history, protecting such integrity included protecting ecosystems, and "protection of aquatic ecosystems, Congress recognized, demanded broad federal authority to control pollution, for 'water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.'"⁶⁰ Third, "in keeping with these views, Congress chose to define the waters covered by the Act broadly."⁶¹ In particular, the Court noted that although Congress had chosen to use the term "navigable waters,"

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.⁶²

However, the clear congressional intent to repudiate navigability did not fully answer the question of whether the Corps' regulations were reasonable because "it is one thing to recognize that Congress intended to allow regulation of waters that might not satisfy 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."⁶³ Nevertheless, the Court upheld the Corps' regulations, largely because the Corps and EPA had "determined that wetlands adjacent to navigable waters do as a general matter play a key role in protecting and enhancing water quality."⁶⁴ As a result:

We cannot say that the Corps' conclusion that adjacent wetlands are inseparably bound up with "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.⁶⁵

Moreover, the Court declared, during the 1977 Amendments to the CWA "Congress acquiesced in the administrative [31 ELR 10513] construction" of the term "waters of the United States."⁶⁶ The Court explained in detail how "critics of the Corps' permit program attempted to insert limitations on the Corps' § 404 jurisdiction into the 1977 legislation" and how the bills proposed in both the House and the Senate "would have limited the Corps' authority under § 404 to waters navigable in fact and their adjacent wetlands."⁶⁷ In particular, the Court focused on the lengthy debates in both chambers regarding the status of wetlands and arguments 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."⁶⁸ In the end, the Court emphasized, "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, 'retained the comprehensive jurisdiction over the Nation's waters exercised in the 1972 Federal Water Pollution Control Act.'"⁶⁹

The Court found a "twofold" significance in these lengthy congressional debates and their final resolution.

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' 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.⁷⁰

Second, it is notable that even those who would have restricted the reach of the Corps' jurisdiction would have done so not 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.⁷¹

Finally, the Court found that two other aspects of the 1977 legislation supported the Corps' interpretation of "waters of the United States." First, the Court looked at § 404(g)(1),⁷² which Congress added to § 404 in 1977.⁷³ Section 404(g)(1) allows a state 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 shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto) within its jurisdiction . . . .⁷⁴

As the Riverside Bayview Homes Court noted, in enacting the "other than" restriction in § 404(g)(1), "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.'"⁷⁵ As a result, Congress had explicitly recognized that some adjacent wetlands are included within the Corps' jurisdiction.⁷⁶

The second feature of the 1977 Amendments that supported the Corps' jurisdiction over wetlands was a $ 6 million appropriation for a National Wetlands Inventory.⁷⁷ According to the Court, "the enactment of this provision reflects congressional recognition that wetlands are a concern of the CWA 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.'"⁷⁸

Given the CWA's language, legislative history, 1977 Amendment debates, goals, and policies, the Supreme Court found "that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of fill material into wetlands adjacent to 'waters of the United States.'"⁷⁹ It thus not only upheld the Corps' specific exercise of jurisdiction over Riverside Bayview Homes' property but also strongly indicated that the Corps' § 404 jurisdiction should generally be construed broadly to effectuate the CWA's larger purposes.

Isolated Waters and the Commerce Clause Debate

In extending CWA jurisdiction to intrastate waters and wetlands, EPA and the Corps exposed the federal government to Commerce Clause challenges. Since Riverside Bayview Homes, this challenge has focused on isolated waters—wetlands or other intrastate waters that have no direct connection to larger waters and hence do not participate in hydrological cycles like adjacent wetlands do. Nevertheless, given the widespread agreement that CWA jurisdiction extends to the limits of the Commerce Clause,⁸⁰ EPA and the [31 ELR 10514] Corps continued to assert jurisdiction over such waters on purely Commerce Clause grounds, using arguments such as the migratory bird rule to support the federal government's right to regulate.

Until 1995, the federal government's right to assert such Commerce Clause jurisdiction seemed certain. The history of the Commerce Clause up until 1995 had been a steady expansion of federal regulatory power over activities connected to interstate commerce, and federal courts were more than willing to extend this broad regulatory authority to the Corps under § 404. For example, in 1989, in Leslie Salt Co. v. United States,⁸¹ the Ninth Circuit held that the Corps had authority to regulate abandoned, nonadjacent salt-extraction pits near San Francisco Bay, even though the pits were artificially created and even though the pits only temporarily filled with water each year during the rainy season.⁸² The Ninth Circuit began with the premise "that Congress intended to create a very broad grant of jurisdiction in the [CWA], extending to any aquatic feature within the reach of the commerce clause power."⁸³ Moreover, the fact that the ponds were created artificially did not matter because "the Corps' jurisdiction does not depend on how the property at issue became a water of the United States. Congress intended to regulate local aquatic ecosystems regardless of their origin."⁸⁴ Although all of the waters specifically listed in § 328.3(a)(3) of the Corps' regulation defining "waters of the United States" "were naturally created," the Ninth Circuit emphasized that "other parts of the Corps' regulations . . . assert that the Corps generally has jurisdiction over man-made waters under both the [CWA] and the Rivers and Harbors Act"⁸⁵ and that "courts have uniformly included artificially created waters in the Corps' jurisdiction under the [CWA] and the Rivers and Harbors Act."⁸⁶ In addition, "the seasonal nature of the ponding is no obstacle to Corps jurisdiction, . . . because the regulations specifically enumerate two seasonal water features as other waters: intermittent streams and playa lakes."⁸⁷ Finally, addressing the Commerce Clause issue by relying on the migratory bird rule, the Ninth Circuit concluded "that migratory birds (including many protected by Migratory Bird Treaties) and one endangered species may have used the property as habitat" and that "the commerce clause power, and the [CWA], is broad enough to extend the Corps' jurisdiction to local waters which may provide habitat to migratory birds and endangered species."⁸⁸

In 1995, however, in United States v. Lopez,⁸⁹ the Supreme Court struck down the Gun-Free School Zones Act on the ground that it exceeded Congress' Commerce Clause power and violated principles of federalism. Emphasizing that the interstate commerce power "may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government,"⁹⁰ the Lopez Court "identified three broad categories of activity that Congress may regulate under its commerce power."⁹¹ "First, Congress may regulate the use of the channels of interstate commerce."⁹² "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons and things in interstate commerce, even though the threat may come only from intrastate activities."⁹³ "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce."⁹⁴

Lopez-based challenges to the Corps' assertion of jurisdiction over isolated waters, particularly its assertions based on the migratory bird rule, were not long in coming. The first such attempted challenge came out of the Ninth Circuit. In 1994, the year before the Supreme Court decided Lopez, the Ninth Circuit revisited the isolated waters issue in a second round of Leslie Salt Co. v. United States.⁹⁵ Precisely, the court faced the issue of "whether to revisit an issue previously resolved by this court—whether isolated, seasonally dry intrastate waters used only by migratory birds are within the reach of the [CWA]."⁹⁶ The case involved the same abandoned salt-extraction pits and the same seasonal pond issue, which, on remand from the first Leslie Salt decision, the district court had found to be subject to the Corps' jurisdiction.⁹⁷ On the second appeal, Cargill, Inc., the successor-in-interest to Leslie Salt, urged the Ninth Circuit to reconsider the migratory bird rule issue. On law of the case grounds, the court declined the invitation, upholding its previous finding "that 'the commerce clause power, and thus the [CWA], is broad enough to extend the Corps' jurisdiction to local waters which may provide habitat to migratory birds and endangered species.'"⁹⁸ First, the court found that [31 ELR 10515] because it was "plausible to find" that the migratory bird rule was a valid interpretive rule under the federal Administrative Procedure Act,⁹⁹ its prior holding could not be deemed clearly erroneous.¹⁰⁰

Second, the Ninth Circuit determined that extension of the CWA to isolated waters used by migratory birds was reasonable. Relying on Riverside Bayview Homes, it accorded the Corps Chevron deference and noted that "the reasonableness of the Corps' interpretation must be judged in light of the Act's language, policies, and legislative history."¹⁰¹ "The language of the Act evinces broad congressional purposes that can be cited in support of the Corps' interpretation," including goals to protect wildlife.¹⁰² Moreover, "legislative history from 1972 asserts Congress's intent to extend Act jurisdiction over waters of the United States to the maximum extent possible under the Commerce Clause."¹⁰³ Even Riverside Bayview Homes provided "some support" for the Corps' position. Noting that the Supreme Court had been dealing with hydrologically connected adjacent wetlands in that case, the Ninth Circuit emphasized that, "nevertheless, the Corps' rationale for regulating adjacent wetlands may have some application to isolated waters as well. The seasonally ponded areas may have a connection to the aquatic ecosystem in their role as habitat for migratory birds."¹⁰⁴

Finally, Cargill argued that the migratory bird rule exceeded Congress' Commerce Clause authority.¹⁰⁵ The Ninth Circuit disagreed. Noting that "[a] court's review of congressional enactments under the Commerce Clause should be highly deferential"¹⁰⁶ and that the Supreme Court and other federal courts had suggested or held "that Congress's commerce clause powers extend to the regulation of migratory birds,"¹⁰⁷ it concluded that, "given the broad sweep of the Commerce Clause," its prior holding could not be considered clearly erroneous.¹⁰⁸

In 1995, after it had decided Lopez, the Supreme Court denied certiorari to review the Ninth Circuit's decision despite arguments that Lopez invalidated the Ninth Circuit's reliance on the "broad sweep" of the Commerce Clause.¹⁰⁹ In a rare dissent from the denial of certiorari, Justice Thomas argued that Lopez did in fact affect the asserted limits of CWA jurisdiction. In particular, the fact that

substantial interstate commerce depends on the continued existence of migratory birds does not give the Corps carte blanche authority to regulate every property that migratory birds use or could use as habitat. The point of Lopez was to explain that the activity on the land to be regulated must substantially affect interstate commerce before Congress can regulate it pursuant to its Commerce Clause power.¹¹⁰

In 1997, the Fourth Circuit agreed with Justice Thomas, finding that not only the migratory bird rule but all of subsection (a)(3) of the Corps' "waters of the United States" definition was unconstitutional under Lopez. In United States v. Wilson,¹¹¹ it declared that the intrastate waters portion of the regulation "requires neither that the regulated activity have a substantial effect on interstate commerce, nor that the covered waters have any sort of nexus with navigable, or even interstate, waters."¹¹² It delineated Congress' authority to regulate such waters.

The power of Congress to regulate the discharge of pollutants into at least some nonnavigable waters is indisputable, but the limits of this power are far from clear. As explained in Lopez, Congress can clearly regulate discharges of pollutants that substantially affect interstate commerce. . . . Presumably, Congress may also regulate the discharge of pollutants into nonnavigable waters to the extent necessary to protect the use or potential use of navigable waters as channels or instrumentalities of interstate commerce, although the extent of that power is not entirely clear. Finally, it is arguable that Congress has the power to regulate the discharge of pollutants into any waters that themselves flow across state lines, or connect to waters that do so, regardless of whether such waters are navigable in fact, merely because of the interstate nature of such waters, although the existences of such a far reaching power could be drawn into question by the Court's recent federalism jurisprudence.¹¹³

The Seventh Circuit, however, upheld the migratory bird rule in 1999 in the face of a post-Lopez Commerce Clause challenge. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,¹¹⁴ a group of 23 municipalities in Illinois "banded together to form a municipal corporation for the purpose of locating and developing a disposal site for nonhazardous waste."¹¹⁵ The Solid Waste Agency of Northern Cook County (SWANCC) found a 533-acre site that had once been used for mining, but in order to use that site as a landfill, it would have to fill "approximately 17.6 acres of semi-aquatic property . . . ."¹¹⁶ SWANCC contacted the Corps to determine whether it needed a CWA § 404 permit to fill these acres.¹¹⁷ Although "the Corps initially decided that the site did not include protected wetlands and therefore did not fall within its regulatory [31 ELR 10516] jurisdiction,"¹¹⁸ it changed its mind "after the Illinois Nature Preserves Commission (a state agency) informed it that a number of migratory bird species had been observed there."¹¹⁹ Invoking the migratory bird rule, the Corps both asserted jurisdiction and rejected SWANCC's repeated applications for a § 404 permit.¹²⁰ SWANCC then sued the Corps, originally challenging both the permitting decisions and the legitimacy of the migratory bird rule.¹²¹ At the Seventh Circuit, however, SWANCC focused solely on the rule, arguing both that "(1) Congress lacked the power to grant the Corps regulatory jurisdiction over isolated, intrastate waters based on the presence of migratory birds alone; [and] (2) the Corps exceeded its statutory authority in interpreting the Act to confer jurisdiction as provided by the migratory bird rule . . . ."¹²²

The Seventh Circuit began its analysis with the constitutional argument. It emphasized that Lopez "expressly recognized, and in no way disapproved, 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."¹²³ It then asked whether the destruction of migratory bird habitat, in the aggregate, substantially affected interstate commerce. Given evidence that millions of Americans travel across state lines and spend billions of dollars to hunt and watch migratory birds, the Seventh Circuit concluded that the destruction of wetland habitat through dredging and filling substantially affected interstate commerce and fell within Congress' Commerce Clause authority.¹²⁴ Moreover, it countered SWANCC's argument that the migratory bird rule gave the Corps jurisdiction over everything by emphasizing the importance of "habitat."

A "habitat" is not simply a place where a bird might alight for a few minutes, as SWANCC suggests, but rather "the place where a plant or animal species naturally lives or grows." Before the Corps may assert jurisdiction under the migratory bird rule, it must first make a factual determination that a particular body of water provides habitat for migratory birds, which it has done here.¹²⁵

Nor did SWANCC's policy argument based on federalism affect the Seventh Circuit's analysis. SWANCC claimed that the migratory bird rule is "inconsistent with the principles of federalism that motivated the Court in Lopez, because it erodes the 'distinction between what is truly national and what is truly local.'"¹²⁶ Given the number of international treaties governing migratory birds, however, the Seventh Circuit was unpersuaded that "the protection of migratory bird habitat is a matter of local concern only."¹²⁷

Even less persuasive is SWANCC's suggestion that giving a federal agency (here, the Corps) the power to override decisions by local land use and zoning boards to permit the filling of local waters conflicts with notions of state sovereignty. To the contrary, because the regulation of migratory bird habitat is a permissible exercise of Congress' authority, the Supremacy Clause . . . squarely supports the legitimacy of giving precedence to federal law in this area.¹²⁸

Turning to SWANCC's statutory argument, the Seventh Circuit noted that the CWA "expressly limits the Corps' jurisdiction to 'the waters of the United States.'"¹²⁹ It further noted, however, that both EPA and the Corps have defined "waters of the United States" "to include 'all other waters . . . the use, degradation, or destruction of which could affect interstate or foreign commerce.'"¹³⁰ It accorded these agencies' interpretations Chevron deference,¹³¹ finding first that "it is well established that the geographical scope of the Act reaches as many waters as the Commerce Clause allows. . . . Thus, if Congress possesses that power to regulate a body of water under the Act, generally this court will conclude that it has in fact done so."¹³² As a result, the migratory bird rule was in keeping with congressional intent, and the Seventh Circuit upheld it on both statutory and constitutional grounds.

The Supreme Court granted certiorari to review the Seventh Circuit's decision on May 22, 2000.¹³³ Given the courts of appeals' unanimous acceptance of the principle that Congress intended CWA jurisdiction to extend to the limits of the Commerce Clause and their consequent focus on the constitutional analysis, it was expected that the Supreme Court would decide the scope of CWA jurisdiction on Commerce Clause grounds.

The Supreme Court's Decision in Solid Waste Agency

In fact, the Supreme Court in Solid Waste Agency failed to reach the Commerce Clause issue, instead reversing the Seventh Circuit on the basis of statutory interpretation and concluding "that the 'Migratory Bird Rule' is not fairly supported by the CWA."¹³⁴ Moreover, its statutory decision turned on the meaning of the word "navigable" as Congress used it in the CWA and the federalism concerns that navigability raises.

[31 ELR 10517]

Starting with statutory basics, the Court noted that § 404(a) of the CWA¹³⁵ "grants the Corps authority to issue permits 'for the discharge of dredged or fill material into the navigable waters at specified disposal sites.'"¹³⁶ In turn, "the term 'navigable waters' is defined under the Act as 'the waters of the United States, including the territorial seas.'"¹³⁷ The Court then immediately focused its attention on the intrastate waters portion of the Corps' regulation, § 328.3(a)(3), and the migratory bird rule, characterizing the latter as a 1986 "attempt to clarify the reach of its [§ 404] jurisdiction" over intrastate waters.¹³⁸

From the very beginning of its analysis, the Solid Waste Agency Court emphasized a perceived tension between the CWA's environmental goals and federalism concerns, a tension that the Court characterized as a conflict between two of the CWA's specific provisions: the definition of "navigable waters," especially as expanded by agency rulemaking, and § 1251(b), which preserves certain powers to states. Thus, although the Court noted that "Congress passed the CWA for the stated purpose of 'restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters,'"¹³⁹ it also immediately emphasized that "in so doing, 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, and to consult with the Administrator . . . .'"¹⁴⁰

Given this perceived conflict between statutory provisions, the Court treated the issue before it as one requiring harmonizing of the two provisions, which the Court proceeded to do by systematically narrowing the asserted breadth of the Corps' § 404 jurisdiction—that is, by narrowing the definition of "navigable waters." Turning first to Riverside Bayview Homes, the Solid Waste Agency Court admitted that it had previously decided "that the Corps had § 404(a) jurisdiction over wetlands that actually abutted on a navigable waterway," "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 the classic understanding of that term."¹⁴¹ However, the Court immediately backed away from any more expansive reading of these holdings.

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 . . . . We found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands "inseparably bound up with 'waters of the United States.'"

It was the significant nexus between wetlands and 'navigable waters' that informed our reading of the CWA in Riverside Bayview Homes.¹⁴²

As quoted, however, the focus of the Court's revisitation of Riverside Bayview Homes emphasizes Congress' acquiescence to the Corps' regulations, not the plain meaning of the CWA itself. Following this focus, the Court next turned to the regulatory history of CWA "navigable waters" rather than focusing on the statutory scheme. As such, the Court emphasized that "the Corps' original interpretation of the CWA, promulgated two years after its enactment, is inconsistent with that which it espouses here."¹⁴³ In 1974, the Corps had defined "navigable waters" for purposes of § 404 to be nearly identical to the definition of "navigable waters" for the Rivers and Harbors Act of 1899¹⁴⁴—namely, "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."¹⁴⁵ As the Court noted, moreover, in 1974 "the Corps emphasized that 'it is the water body's capability of use by the public for purposes of transportation or commerce which is the determinative factor.'"¹⁴⁶ In the face of these early regulatory interpretations by the Corps, "respondents put forward no persuasive evidence that the Corps mistook Congress' intent in 1974."¹⁴⁷ The Court relegated the CWA's legislative history and direct statements from Congress to a footnote, noting that "although the Conference Report [for the 1972 enactment] includes the statement that the conferees 'intend that the term "navigable waters" be given the broadest possible constitutional interpretation,' . . . neither this, nor anything else in the legislative history . . . signifies that Congress intended to exert anything more than its commerce power over navigation."¹⁴⁸

The Supreme Court's treatment of the 1977 CWA Amendments was little different and focused on the importance of the Corps' 1977 regulations rather than congressional intent. In July 1977, the Corps promulgated new regulations that extended "waters of the United States" to the isolated waters currently described in § 328.3(a)(3).¹⁴⁹ These were the same 1977 regulations that included adjacent wetlands as part of the "waters of the United States" and to which the Court had found congressional acquiescence in Riverside Bayview Homes. Nevertheless, in Solid Waste Agency, the Court refused to find congressional acquiescence to the intrastate waters parts of the regulations. Noting that in Riverside Bayview Homes it had found acquiescence because of the significant congressional attention to the wetlands issue, the Court concluded that, "beyond Congress' [31 ELR 10518] desire to regulate 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 acquiescence to such jurisdiction."¹⁵⁰

The government then attempted to demonstrate such intent through § 404(g)(1), pointing out that in § 404(g)(1) Congress gives states authority to issue dredge and fill permits for waters other than those that are navigable in fact or subject to the ebb and flow of the tide and their adjacent wetlands.¹⁵¹ Moreover, in Riverside Bayview Homes, the Court had already acknowledged "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.'"¹⁵² Nevertheless, the Court refused to conclude that in so dividing the waters of the United States, Congress had intended the waters available to state regulation to include all those waters listed in § 328.3(a)(3), finding it equally plausible "that Congress simply wanted to include all waters adjacent to 'navigable waters,' such as nonnavigable tributaries and streams."¹⁵³

Finally, the Court retreated from its discounting of the word "navigable" in Riverside Bayview Homes.

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 statute. We said in Riverside Bayview Homes that the word "navigable" in the statute was of "limited effect" 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 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.¹⁵⁴

Concluding that the Corps' regulations threatened to violate the Commerce Clause and undermine the demands of federalism, the Court refused to extend Chevron deference to the Corps like it had in Riverside Bayview Homes. "Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result."¹⁵⁵ Moreover, "this concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power."¹⁵⁶ Application of the migratory bird rule, the Court concluded, raised "significant constitutional questions,"

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 . . . . 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. § 1251(b). We thus read the statute as written to avoid the significant constitutional and federalism questions raised by the respondents' interpretation, and therefore reject the request for administrative deference.¹⁵⁷

Given this reasoning, the majority of five Justices reversed the Seventh Circuit and invalidated the Corps' jurisdiction over the isolated pond. Specifically, they held "that 33 C.F.R. § 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."¹⁵⁸

The Supreme Court's decision in Solid Waste Agency leaves many issues for further resolution. For example, although technically the Court only invalidated the migratory bird rule gloss to § 328.3(a)(3), its Commerce Clause concerns suggest that that part of the definition of "waters of the United States" is invalid in its entirety. Moreover, the Court left the exact reach of CWA "navigable waters" in some doubt, although it arguably created a hydrology test for CWA jurisdiction by expressly approving jurisdiction over adjacent wetlands and nonnavigable tributaries but disapproving jurisdiction over isolated waters.

More vexing, however, is the Court's unwillingness to consider and wrestle with the full implications of its decision to reconnect CWA jurisdiction to traditional navigable waters. Both the majority and the dissent ignored the fact that the § 404 permit program is only a small part of a much more complex regulatory scheme and that the definition of "navigable waters" applies to both. Moreover, in ignoring this larger statutory context and in discounting the import of § 404(g)(1), the Court shielded itself from the fact that Congress had already enacted a specific scheme to address federalism concerns.

Federalism and the Statutory Definitions Missing From Solid Waste Agency: Navigable Waters, the Oceans, and the CWA

Federalism and the CWA

Federalism is one of the basic constitutional structures of the American government. It derives from the Founders' deep desire to prevent governing power from becoming concentrated in a single, centralized, and (they feared) tyrannical body.¹⁵⁹ "Federalism" thus describes the balance of power created in the U.S. Constitution between a centralized but limited national government and the relatively unfettered but dispersed state governments, whose jurisdictions govern, respectively, national issues and those of local import.

[31 ELR 10519]

The Commerce Clause and the Tenth Amendment are at the heart of much federalism litigation. Commerce Clause jurisprudence seeks to strike a balance between the states' "reasonable exercise of [their] police powers over local affairs" and over "matters of local concern" and the federal government's power to oversee matters of "national interest."¹⁶⁰ Thus, in Lopez, the Supreme Court emphasized that the federal government's power over interstate commerce "may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectively obliterate the distinction between what is national and what is local and create a completely centralized government . . . ."¹⁶¹ In contrast, the states' end of federalism rests mainly in the Tenth Amendment, which reserves to states all powers not expressly given to the federal government.¹⁶² In New York v. United States,¹⁶³ a case in which the Supreme Court struck down federal legislation on federalism grounds, the Court nevertheless emphasized that the Commerce Clause and Tenth Amendment "inquiries are mirror images of each other. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress."¹⁶⁴

Within these constitutional limits, however, Congress has considerable flexibility to designate the exact relationship between the state and federal governments, and it has done so in the CWA—although not in the way that the Supreme Court relied upon. The Supreme Court invalidated the migratory bird rule in part on federalism grounds because, "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. § 1251(b)."¹⁶⁵ It thus rested its entire analysis of Congress' intent regarding federalism and the CWA on one sentence of § 1251(b). In its entirety, § 1251(b) provides:

It is the policy of the Congress 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, and to consult with the Administrator in the exercise of his authority under this chapter. It is the policy of Congress that the States manage the construction grant program under this chapter and implement the permit programs under sections 1342 and 1344 of this title. It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and elimination of pollution and to provide Federal technical services and financial aid to State and interstate agencies and municipalities in connection with the prevention, reduction, and elimination of pollution.¹⁶⁶

Viewed in its entirety, therefore, § 1251(b) suggests that it is mainly through federal financing, a state-managed grant program, and state acquisition of the permitting programs that Congress intended to preserve state authority and federalism values. Legislative history supports this inference. Discussing § 1251, the Senate drafting committee commented that

this section establishes a policy that the discharge of pollutants should be eliminated by 1985, that the natural chemical, physical, and biological integrity of the Nation's waters be restored, and that an interim goal of a water quality allowing fish propagation and suitable for swimming should be reached by 1981. The States are declared to have the primary responsibility and right to implement such a goal.¹⁶⁷

However, this statement—and the current § 1251(b)—must be evaluated in light of the committee's immediate qualification. "The policy declaration of the [prior] Federal Water Pollution Act has been revised substantially in order to represent the departure in Federal water pollution policy from a water quality standards control mechanism to a discharge control mechanism."¹⁶⁸ Congress enacted this change in policy in 1972 explicitly to give the federal government more control over water quality, a control to be exercised through the 1972 Act's permit programs.

For more than two decades, Federal legislation in the field of water pollution control has been keyed primarily to an important principle of public policy: The States shall lead the national effort to prevent, control and abate water pollution. As a corollary, the Federal role has been limited to support of, and assistance to, the States . . . .

To most Americans, the problems of water pollution control appeared to be localized and moderate . . . .

From its two-year study of the [prior, State-based] Federal water pollution control program, the Committee concludes that the national effort to abate and control water pollution has been inadequate in every vital aspect . . . .

The [new] permit system establishes a direct link between the Federal government and each industrial source of discharge into the navigable waters . . . . The legislation will restore Federal-State balance to the permit system. Talents and capacities of those States whose own programs are superior are to be called upon to administer the permit system within their boundaries. The Administrator is to suspend his activity, insofar as the permit system is concerned, in these States.¹⁶⁹

Section 1251(b), therefore, indicates that the federalism issues inherent in § 404 should be evaluated with respect to the larger context of the CWA's two permitting programs and the provisions allowing states to acquire program authority. Moreover, the federalism issues inherent in the CWA's overall structure also require an understanding of traditional state and federal jurisdiction over the various kinds of waters regulated within the United States.

[31 ELR 10520]

Traditional Regulatory Authority Over the "Navigable Waters," Intrastate Waters, and the Ocean

Internal Waters: A Long-Term Tension Between States and the Federal Government

Regulatory authority over various types of waters within the United States has a long and complex history. A good place to start, however, is the public trust doctrine and its connection to sovereignty. Control of waterways derives in part from control of the underlying lands, and the law of this country has long been that, at least with respect to internal waters, ownership of the beds and banks of navigable waters belongs to the sovereign, while ownership of the beds and banks of non-navigable waters belongs to private landowners.¹⁷⁰ Sovereign ownership of lands under navigable waters, moreover, impresses those lands with a public trust; title to such lands is "held in trust for the people . . . that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction of interference of private parties."¹⁷¹

In England, the issue of sovereign control over such lands was rather straightforward, and "at common law, the title and dominion in lands flowed by the tide water were in the King for the benefit of the nation."¹⁷² Given the U.S. dual system of government, however, the question in America was which sovereign—the states or the federal government—would receive the title to lands under navigable waters. Given the exact history of the formation of our federal government, the Supreme Court concluded that, "upon the American Revolution, these rights, charged with a like trust, were vested in the original States within their respective borders, subject to the rights surrendered by the Constitution of the United States."¹⁷³ Moreover, under the so-called equal footing doctrine, "the new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the [navigable] waters, and in the lands under them, within their respective jurisdictions."¹⁷⁴

Thus, all states acquire title to the beds and banks of navigable waters within their borders, and "navigable waters," for purposes of state title, include both waters that were navigable-in-fact at the time of statehood¹⁷⁵ and waters subject to the ebb and flow of the tide.¹⁷⁶ Nevertheless, a state's title and its accompanying rights are subject to the rights that the federal government acquired through the Constitution. Regardless of state title, for instance, the federal government retains the right to regulate traditionally navigable waters—those navigable in fact or subject to the ebb and flow of the tide—to maintain those waters' capacity for navigation. At common law, courts give effect to this power through the federal navigation servitude, which allows the federal government to destroy private property in aid of navigation without compensating the private property owner, as the Fifth Amendment would otherwise require.¹⁷⁷ The Supreme Court has justified the navigation servitude as follows:

If the public right of navigation is the dominant right and if, as must be the case, the title of the owner of the bed of navigable waters holds subject absolutely to the public right of navigation, this dominant right must include the right to use the bedof the water for every purpose which is in aid of navigation. This right to control, improve, and regulate the navigation of such waters is one of the greatest of the powers delegated to the United States by the power to regulate commerce. Whatever power the several States had before the Union was formed, over the navigable waters within their several jurisdictions, has been delegated to the Congress, in which, therefore, is centered all of the governmental power over the subject, restricted only by such limitations as are found in other clauses of the Constitution.¹⁷⁸

In addition, this traditional federal government power to preserve navigation has been codified into §§ 9 and 10 of the Rivers and Harbors Act of 1899, which prohibit construction in or obstruction of the navigable waters without Congress' consent or a permit from the Corps.¹⁷⁹ "Navigable waters" for the purposes of the Rivers and Harbors Act are limited to "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce."¹⁸⁰ The Rivers and Harbors Act thus demonstrates that, prior to the CWA, use of the term "navigable waters" in statutes served to designate water subject to the traditional federal governmental power to regulate in aid of navigation. Federal jurisdiction was thus justified even though the federal presence intruded upon waters whose beds and banks were state-owned and over which the states otherwise exercised authority.

As the Rivers and Harbors Act suggests, however, federal authority to regulate waters of the United States also has a long connection to commerce. Moreover, since at least 1870, it has been the Commerce Clause—not the traditional navigability of the waters—that has been the more important source of the federal government's regulatory authority. In The Daniel Ball,¹⁸¹ the Supreme Court upheld the federal government's authority to regulate interstate commerce over waters within the United States (specifically, a river in Michigan) if the water is a "navigable water" and Congress otherwise has the Commerce Clause power to pass the statute.¹⁸² In this context, moreover, the test for navigability

is found in [the waters'] navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And [31 ELR 10521] they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.¹⁸³

Later cases extended this federal Commerce Clause power to waters made navigable through artificial aids.¹⁸⁴

Internal waters, therefore, have for well over a century been the sites of an uneasy jurisdictional tension between the states and the federal government. Indeed, the Supreme Court explored this tension with respect to commerce on the navigable waters in its 1824 decision in Gibbons v. Ogden.¹⁸⁵ In deciding that the federal government could regulate commerce on the navigable waters—even when states owned the beds and banks of those waters—the Court emphasized that "the power of Congress is 'to regulate commerce.'"¹⁸⁶ Moreover, Congress' Commerce Clause power "comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with 'commerce with foreign nations, or among the several States, or with the Indian Tribes.'"¹⁸⁷ As a result, Congress could reach into the borders of the various states to regulate navigation and commerce on the navigable waters, so long as that regulation was connected to foreign, interstate, or Tribal commerce. However, the Court also recognized that "the right of a State to regulate its internal trade, applies as well to its navigable waters, as to its other territory. Its rivers are its territory and domain, as much as the land, and equally subject to its laws in all respects."¹⁸⁸ As a result, according to the Court, both the state and federal governments have regulatory authority over the internal navigable waters.

The Federal government can do no act on the navigable waters within the limits of the United States, which, or a corresponding act to which, it cannot do on the land, within the same limits . . . . Then the navigable waters belong no more to the Federal government, and are not otherwise affected by the Union, than the land itself. Both are equally subject to the jurisdiction of the general government, for the exercise of all powers delegated to it by the Constitution, and both equally subject to State jurisdiction, for the exercise of all powers connected with State sovereignty.¹⁸⁹

Nevertheless, in 1979, the Supreme Court appeared to resolve this federalism tension in favor of the federal government's Commerce Clause powers when it consciously repudiated a unitary view of the term "navigable waters" for all regulatory purposes¹⁹⁰ and instead emphasized the importance of a standard Commerce Clause analysis for assessing the federal government's regulatory authority over the waters of the United States.

Reference to the navigability of a waterway adds little if anything to the breadth ofCongress' regulatory power over interstate commerce. It has long been settled that Congress has extensive authority over this Nation's waters under the Commerce Clause . . . .

Congressional authority over the waters of this Nation does not depend on a stream's "navigability." And . . . a wide spectrum of economic activities "affect" interstate commerce and thus are susceptible of congressional regulation under the Commerce Clause irrespective of whether navigation, or, indeed, water, is involved. The cases that discuss Congress' paramount authority to regulate waters used in interstate commerce are consequently best understood when viewed in terms of more traditional Commerce Clause analysis than by reference to whether the stream in fact is capable of supporting navigation or may be characterized as "navigable water of the United States."¹⁹¹

Ocean and Coastal Waters: Strong Federal Authority

In sharp contrast to its treatment of internal navigable waters, the Supreme Court has resoundingly and repeatedly declared that the sea is the province of the federal government. For example, when states like California asserted jurisdiction over the band of ocean waters along their coasts through the equal footing doctrine, the Supreme Court refused to recognize the states' claims, instead assigning regulatory power over these waters to the federal government. In United States v. California,¹⁹² the federal government conceded that "California has a qualified ownership of lands under inland navigable waters such as rivers, harbors, and even tidelands down to the low water mark."¹⁹³ California, however, claimed the three-mile belt of waters along its coast, arguing

that a belt extending three English miles from low water mark lies within the original boundaries of the state . . .; that the original thirteen states acquired from the Crown of England title to all lands within their boundaries under navigable waters, including a three-mile belt in adjacent seas; and that since California was admitted as a state on an "equal footing" with the original states, California at that time became vested with title to all such lands.¹⁹⁴

The Supreme Court was unconvinced, noting that "from the wealth of material supplied, . . . we cannot say that the thirteen original colonies separately acquired ownership to the three-mile belt or the soil under it, even if they did acquire elements of the sovereignty of the English Crown by their revolution against it."¹⁹⁵ Indeed, "at the time this country won its independence from England there was no settled international custom or understanding among nations that each nation owned a three-mile water belt along its borders."¹⁹⁶ Instead, "acquisition, as it were, of the three-mile belt [has] been accomplished by the national [31 ELR 10522] Government, [and] protection and control of it has been and is a function of national external sovereignty."¹⁹⁷ As a result, "the Federal Government rather than the state has paramount rights in and power over that belt . . . ."¹⁹⁸

Six years later, Congress "restored" title to this three-mile belt to the states in the Submerged Lands Act of 1953.¹⁹⁹ The Act declared that it was in the public interest that "title to and ownership of the lands beneath navigable waters within the boundaries of the respective States" and "the right and power to manage, administer, lease, develop and use the said lands" and their natural resources be "recognized, confirmed, established, and vested in and assigned to the respective States . . . ."²⁰⁰ The Act defines "lands beneath navigable waters" to include the state's internal public trust waters and "all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each State,"²⁰¹ and it expressly allows any coastal state to extend its seaward boundary "to a line three geographical miles distant from its coast line . . . ."²⁰² The federal government, in turn, generally renounced all of its interests in this three-mile belt²⁰³ except "all its navigational servitude and rights in and power of regulation and control of said lands and navigable waters for constitutional purposes of commerce, navigation, national defense, and international affairs . . . ."²⁰⁴

Despite this restoration of state title to the coastal zone, however, the Supreme Court has continued to uphold the federal government's supremacy in ocean and coastal waters. For example, in contrast to its decision in Solid Waste Agency, the Court routinely defers to the Corps' interpretation of its own regulatory jurisdiction over the ocean and coastal waters.²⁰⁵ More importantly, when federalism issues arise with respect to the ocean or coast, the Court has repeatedly upheld the federal government's authority. For example, when the city of Nome, Alaska, applied to the Corps for a permit under the Rivers and Harbors Act to build its port facilities, the Corps required the state of Alaska to "waive any future claims pursuant to the Submerged Lands Act . . . that might arise from a seaward extension of Alaska's coastline caused by the building of these facilities."²⁰⁶ In response to Alaska's protest, in 1992 the Supreme Court held in favor of the Corps despite Alaska's argument that federalism interests mandated that the state's interest be protected.²⁰⁷

Contrary to Alaska's position, the agency here is not usurping authority. The Secretary [of the Army] is making no effort to alter the existing rights of a State to sovereignty over submerged lands within three miles of the coastline . . . . What the Corps is doing, and what we find a reasonable exercise of agency authority, is to determine whether an artificial addition to the coastline will increase the State's control over submerged lands to the detriment of the United States' legitimate interests . . . . Were we to accept Alaska's position, the Federal Government's interests in submerged lands outside the State's zone of control would conceivably become hostage to a State's plans to add artificial additions to its coastline. And if Alaska's reading of the applicable law were followed to its logical extreme, the United States would be powerless to protect its interests in submerged lands if a State were to build an artificial addition to the coastline for the sole purpose of gaining sovereignty over submerged lands within the United States' zone, so long as the project did not affect navigability or cause pollution.²⁰⁸

More recently, in 1999, the Supreme Court not only found state law regarding oil tankers preempted by federal statutes despite "savings" clauses within those statutes, but the Court also rejected the normal preemption presumption that federal regulation does not preempt state law when the federal government chooses to regulate the ocean and coastal waters. In United States v. Locke,²⁰⁹ the Court narrowly construed the savings clauses in the Oil Pollution Act of 1990²¹⁰ and the Ports and Waterways Safety Act²¹¹ in order to "respect] [ the established federal-state balance in matters of maritime commerce between the subjects as to which the States retain concurrent powers and those over which the federal authority displaces state control."²¹² Thus, while the Court recognized that "it is fundamental in our federal structure that states have vast residual powers,"²¹³ it instead emphasized that

the State of Washington has enacted legislation in an area where the federal interest has been manifest since the beginning of our Republic and is now well established. The authority of Congress to regulate interstate navigation, without embarrassment from intervention of the separate States and resulting difficulties from foreign nations, was cited in the Federalist Papers as one of the reasons for adopting the Constitution.²¹⁴

As a result, the usual presumption that federal law does not preempt state law did not apply, because Washington was "regulating in an area where there has been a history of significant federal presence."²¹⁵

In addition, the United States has steadily extended its national jurisdiction seaward. Until the mid-20th century, international law recognized national jurisdiction over only a narrow band of coastal waters along coastal nations, generally considered to extend seaward for three nautical [31 ELR 10523] miles.²¹⁶ Then, "in 1945, President Truman claimed for the United States jurisdiction and control over the natural resources of the continental shelves off U.S. coasts," a claim to "ownership rights to resources under the high seas beyond, often far beyond, the outer edge of [the United States'] three-mile territorial sea."²¹⁷ At the same time, President Truman also claimed for the United States the right "to set conservation rules for its own citizens and vessels fishing in the high seas outside U.S. territorial seas . . . ."²¹⁸

International law soon ratified and even expanded these national interests in the oceans. The 1958 United Nations Conference on the Law of the Sea (UNCLOS I), in its Convention on the Territorial Sea and the Contiguous Zone, authorized coastal nations to claim not only a territorial sea but a contiguous zone beyond that territorial sea extending up to 12 nautical miles seaward.²¹⁹ Within this contiguous zone, a coastal nation could "exercise enforcement jurisdiction to prevent and punish violations of its customs, fiscal, immigration, and sanitary laws applicable to its territory or territorial sea."²²⁰ Moreover, the Convention on the Continental Shelf gave a coastal nation "the exclusive right to explore the continental shelf and to exploit its resources," with the continental shelf extending by law to the 200-meter isobath.²²¹

By 1973, however, the Third United Nations Conference on the Law of the Sea (UNCLOS III) was working again to expand coastal nations' jurisdiction, producing a convention in 1982 that went into effect in 1994.²²² Under this convention, signatories are entitled to claim a 12-nautical-mile-wide territorial sea, a 24-mile-wide contiguous zone, and a 200-mile-wide Exclusive Economic Zone (EEZ).²²³ In this new EEZ, moreover, signatories have: (a) "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superadjacent to the sea-bed and of the sea-bed and its subsoil"; and (b) jurisdiction regarding "the establishment and use of artificial islands, installations and structures," "marine scientific research," and "the protection and preservation of the marine environment."²²⁴

The United States has not signed onto the 1982 convention. Nevertheless, in 1976 Congress "passed the Magnuson Fishery Conservation and Management Act, which established a 200-mile exclusive fishing zone for the United States . . . and effectively ensured that 200-mile zones would not only be part of any future law of the sea treaty but would also become accepted in customary international law within a few years."²²⁵ In 1983, President Reagan, through presidential proclamation, claimed a 200-mile EEZ for the United States,²²⁶ while in 1988, again through presidential proclamation, he extended the U.S. territorial sea to 12 nautical miles.²²⁷ Finally, in 1999, President Clinton extended the U.S. contiguous zone to 24 nautical miles.²²⁸

Under the logic of California, these extensions of U.S. jurisdiction into the seas, having been obtained through the efforts of the federal government, are controlled by the federal government, not the states. Congress has not passed any statutes that would undermine that assumption. Therefore, despite national expansion seaward, states remain restricted to the jurisdiction given to them in the Submerged Lands Act, which has not been amended to extend state jurisdiction beyond its original three-mile limit.

CWA Jurisdiction and a Broader View of Federalism

State and Federal Jurisdiction in the NPDES Permit Program

As has been discussed, the CWA's regulatory scope is far broader than the § 404 permit program that the Corps administers. Moreover, had the Supreme Court used a broader perspective in its statutory analysis of that Act, it would have noticed that Congress has already addressed and incorporated a respect for federalism into the Act's provisions.

As has been noted, the CWA's more extensive permit program, the § 402 NPDES program, applies to "any discharge of a pollutant."²²⁹ The statutory definition of "discharge of a pollutant" is "(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft."²³⁰ By distinguishing two types of "discharges of a pollutant," this definition highlights an important regulatory distinction within the CWA: the difference between "navigable waters" and more seaward waters. The Act specifically recognizes two bands of ocean waters. The "contiguous zone" is "the entire zone" established through the international Convention of the Territorial Sea and the Contiguous Zone.²³¹ As noted, however, while UNCLOS III extended the permissible contiguous zone to 24 nautical miles, the United States has not ratified that convention.²³² Moreover, when President Clinton extended the contiguous zone through proclamation, he specified that the extension did not change the provisions of any statute.²³³ Therefore, the "contiguous zone" for CWA purposes probably still extends only 12 nautical miles out to sea—the width of the allowable contiguous zone under the last Convention on the Law of the Sea that the United States ratified. Moreover, the contiguous zone does not include the innermost three-mile territorial sea.

[31 ELR 10524]

The CWA defines the "ocean" to be "any portion of the high seas beyond the contiguous zone."²³⁴ As noted, in 1976, between the 1972 enactment of and the 1977 Amendments to the CWA, Congress explicitly extended U.S. fishery management authority out to 200 miles, or 188 miles beyond the contiguous zone, and President Reagan later underscored that authority through presidential proclamation. As a result, the inclusion of "discharges of pollutants" into the "ocean" within the § 402 NPDES program extends active federal CWA jurisdiction at least 200 miles out to sea.

Against this backdrop of ocean regulation, "navigable waters" becomes a much more complex term for the CWA than it is in statutes such as the Rivers and Harbors Act. "Navigable waters," as noted, are "the waters of the United States, including the territorial seas."²³⁵ The Act defines the "territorial seas" to be "the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea . . . and extending seaward a distance of three miles."²³⁶ In other words, the CWA defines the "territorial seas" to mirror the band of coastal waters over which states have considerable influence through the Submerged Lands Act, which had been in existence for almost 20 years at the time Congress first enacted the CWA. Moreover, Congress has not amended either statute's three-mile limitation even though the United States extended its "territorial seas" for international law purposes to 12 miles in 1988.

The Act does not define "waters of the United States." Nevertheless, the elaborate statutory definitional structure for the various types of waters strongly suggests that "waters of the United States" must be the country's internal waters—that is, the other set of waters besides the three-mile territorial sea that are largely under state jurisdiction and the only set of waters not explicitly addressed in any definition relevant to the NPDES permit program.²³⁷ EPA, the agency charged with administering most of the CWA, has also taken this view. Under EPA's regulatory definition, "waters of the United States" include not only the traditionally "navigable" waterways but also "interstate waters"; "all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and ponds" whose use or degradation could affect interstate commerce; wetlands adjacent to any of these waters; and tributaries of any of these waters.²³⁸

Thus, viewed in the more extensive light of the CWA's definitional complexities and the comprehensive coverage of the NPDES permit program, the term "navigable waters" operates most clearly to designate waters over which the states have some regulatory jurisdiction rather than, as in the Rivers and Harbors Act, to specify those waters where the federal government has traditional authority. If the term "navigable waters" was intended, as the Supreme Court in Solid Waste Agency decided, to justify federal regulation through the federal government's traditional regulatory authority over navigation, there would have been no need for Congress to distinguish the contiguous zone and the ocean from other kinds of navigable waters: both are clearly navigable in fact under the traditional test for federal regulatory authority, and both clearly support interstate and foreign commerce.²³⁹ Instead, Congress' use of the three terms—"navigable waters," "contiguous zone," and "ocean"—in the CWA emphasizes the fact that states have authority over certain kinds of waters into which discharges of pollutants may occur, while other kinds of waters are exclusively federal.²⁴⁰

The structure of the NPDES permitting program itself further emphasizes that Congress used the term "navigable waters" to preserve rather than encroach upon principles of federalism. For example, Congress provided that states could acquire authority to issue their own NPDES permits and thus displace EPA's permitting authority.²⁴¹ Moreover, although the federal government retains the right to review the state's permit program and each permit issued, it can generally waive its right to be notified when the state proposes to issue an NPDES permit.²⁴² In effect, therefore, the state assumption provisions effectively allow states to assume almost all day-to-day implementation of water quality regulation.

Nevertheless, a state may only acquire authority "to issue permits for discharges into the navigable waters within the jurisdiction of such State"²⁴³—that is, permits for discharges into the state's internal waters and into the territorial sea. Thus, even if all 50 states were to acquire NPDES permitting authority, EPA would still retain jurisdiction to issue NPDES permits for discharges into the contiguous zone and the ocean. Thus, in permit program acquisition as in the definitions, the term "navigable waters" serves to divide areas of state jurisdiction from those of federal jurisdiction, preserving principles of federalism.

In addition, the specific discharge requirements contained within a particular NPDES permit are based on effluent limitations,²⁴⁴ water quality standards,²⁴⁵ and ocean discharge criteria,²⁴⁶ and the Act's provisions governing these standards underscore the fact that the NPDES program's structure acknowledges and preserves principles of federalism. Under the CWA, states received the primary authority to set water quality standards.²⁴⁷ As the 1972 Act was being [31 ELR 10525] implemented, if a state had already adopted water quality standards for interstate or intrastate waters, those standards "remained in effect unless the Administrator determined that such standard[s are] not consistent with the applicable requirements of this Act."²⁴⁸ However, if a state had not adopted water quality standards prior to October 18, 1972, the Act required it to do so and to submit those standards to EPA—but only for intrastate waters.²⁴⁹ This distinction between preexisting and federally prompted water quality standards allows willing states to address both intrastate and interstate water quality issues but only requires states to focus on their own internal waters. Interstate waters cross state lines, and, thus, the federal government has a more obvious jurisdictional interest in them.

EPA, in contrast, received the primary authority to set effluent limitations, which it sets for all point sources,²⁵⁰ whether they discharge into the navigable waters, the contiguous zone, or the ocean. Moreover, the Act defines an "effluent limitation" to be "any restriction . . . on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance."²⁵¹ Thus, EPA's standard-setting authority, like the NPDES program in general, is far broader than the state-controlled internal waters and waters of the territorial sea.

In addition, EPA determines the ocean discharge criteria. Under § 403 of the Act, "no permit under section [402] of this title for a discharge into the territorial sea, the waters of the contiguous zone, or the ocean shall be issued . . . except in compliance" with guidelines that EPA issues specifically for such discharges.²⁵² These guidelines "determine the degradation of the territorial seas, the contiguous zones, and the oceans" and effectively give EPA more control and oversight over discharges of pollutants into the territorial sea than over discharges of pollutants into internal waters. Emphasizing this point, § 403 provides that EPA cannot waive its right to notification of state-issued NPDES permits for discharges into the territorial sea.²⁵³

The interstate provisions for water quality standards and § 403's treatment of the territorial sea thus blur the otherwise neat statutory division of state and federal regulatory authority. However, both also underscore that Congress was well aware of federalism concerns in its construction of the CWA. The federal government has a jurisdictional interest in interstate waters that it does not have in other internal waters because interstate waters cross state lines, raising issues regarding the relation between states as well as effects on intrastate water quality. Similarly, Congress' provision for greater federal involvement in the territorial sea is consistent with the greater federal interest in the coastal zone than in internal waters, a principle of federalism that the Supreme Court has repeatedly recognized in cases like California and Locke.

Such subtlety in Congress' treatment of the subcategories of navigable waters belies the Supreme Court's assertion in Solid Waste Agency that Congress intended "navigable waters" to refer only to the federal government's "traditional jurisdiction over waters that were or had been navigable in fact or which reasonably could be so made."²⁵⁴ Instead, Congress used the CWA's definition section—which applies to both the NPDES permit program and the § 404 permit program at issue in Solid Waste Agency—to incorporate the many common-law, statutory, and international law distinctions in regulatory authority between the states and the federal government. However,these distinctions only become obvious in the NPDES permit program, and the Court's failure to look beyond § 404 warped its perspective on the meaning and federalism significance of "navigable waters" in the Act.

State and Federal Jurisdiction in the § 404 Program

In comparison to the NPDES program, the § 404 permit program is relatively limited in both scope and jurisdiction. Under § 404, the Corps "may issue permits . . . for the discharge of dredged or fill material into the navigable waters . . . ."²⁵⁵ Given the definitional structure of the CWA, therefore, Congress explicitly restricted the Corps' permit jurisdiction to those waters over which the states already had a regulatory interest. Viewed in isolation, § 404 may indeed, as the Supreme Court feared, encroach upon state regulatory jurisdiction. Viewed in the larger context of § 402, however, one cannot argue that such encroachment was accidental or unintended: Congress knew the difference between waters subject purely to federal control and those subject to a mix of state and federal control, and it limited the § 404 permit program to the latter.

Although § 404 is limited to "navigable waters," a number of its provisions still indicate that Congress had considered and statutorily resolved federalism concerns. First, Congress exempted from the § 404 permit requirement a number of activities connected to particular land uses, minimizing federal intrusion. Such exempted activities include "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"²⁵⁶; "maintenance . . . of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures"²⁵⁷; and "any activity" for which the relevant state has an approved areawide waste treatment management plan.²⁵⁸ Together, these exemptions—particularly the last—leave states considerable control (or at least potential control) over land uses that can result in discharges of dredged or fill material.

Second, as in the NPDES permit program, states can acquire § 404 permitting authority, through § 404(g). However, also as in the NPDES permit program, state permitting jurisdiction is narrower than federal permitting jurisdiction, and the lines Congress drew reflect established divisions of regulatory [31 ELR 10526] authority between the two governments. Thus, a state can "administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters"—but not for discharges of dredged or fill material into

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 their mean high water mark . . . .²⁵⁹

In other words, states cannot acquire § 404 permitting authority for those waters of the United States over which the federal government has always had a paramount regulatory right—the traditional "navigable" waters. Congress was clear about this distinction when it added § 404(g). While it "provided for the administration by a State of its own permit program for the regulation of the discharge of dredged or fill material into the navigable waters," it emphasized that state authority extended only to waters "other than traditionally navigable waters and adjacent wetlands."²⁶⁰ Therefore, as even the majority in Solid Waste Agency was forced to admit, the term "navigable waters" for purposes of the CWA has to be broader than it has been traditionally.²⁶¹ Moreover,

the authority for control of discharges of dredge or fill material granted to a State through the approval of a program pertains solely to the environmental concerns reflected in the specific guidelines set forth in the amendment. The responsibility of the Corps of Engineers under the Rivers and Harbors Act of 1899 . . . is not affected or altered by this provision.²⁶²

As such, Congress strove to preserve traditional federal authority even as it acted to allow states to take over part of the § 404 permit program, strongly indicating that it was well aware of federalism issues and was enacting its own sense of the proper division between state and federal authority.

In addition, as the dissent in Solid Waste Agency recognized, the CWA's legislative and regulatory history strongly suggest that Congress did in fact want "navigable waters" for the CWA to extend to the limits of the Commerce Clause—that is, for the statute's own structure of federalism to embrace the constitutional structure.

By 1972, Congress' Commerce Clause power over "navigation" had long since been established . . . . Why should Congress intend that its assertion of federal jurisdiction be given the "broadest possible constitutional interpretation" if it did not intend to reach beyond the very heartland of its commerce? 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.²⁶³

The 1977 Amendments adding § 404(g) also strongly support the argument that Congress intended the scope of "navigable waters" to be as broad as possible.

The Conference Report discussing the 1977 amendments . . . states that § 404(g) "establish[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 the program by the Administrator . . . . Similarly, a Senate Report discussing the 1977 amendments explains that, under § 404(g), "the Corps will continue to administer the section 404 program in all navigable waters for a discharge of dredge or fill material until the approval of a State program for phase 2 and 3 waters . . . .

Of course, . . . "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."²⁶⁴

Even the dissent, however, neglected the evidence of congressional intent regarding federalism displayed in the CWA's other definitions and the structure of the NPDES program.

Conclusion

To "avoid . . . significant constitutional and federalism questions,"²⁶⁵ the Supreme Court in Solid Waste Agency approached the regulatory scope of § 404 with tunnel vision, ignoring the Act's larger regulatory and definitional structure and the widespread acceptance of a Commerce Clause breadth in the courts of appeals in favor of its own view of the "proper" relationship between the state and federal governments. By highlighting one sentence of § 1251(b), the Court displaced Congress' complex compromise between state and federal regulatory authority—a compromise that incorporates the variety of accepted state and federal interests in the waters of this country by recognizing and distinguishing three broad categories of waters, not just one. In so obviously pushing beyond the more traditional division of regulatory authority based on traditional navigable waters, however, Congress was necessarily relying on its Commerce Clause power to further broad environmental goals completely unrelated to navigation.

The migratory bird rule may or may not be constitutional under the Commerce Clause. However, by constraining the CWA to the federal government's "traditional jurisdiction over waters that were navigable in fact or which could reasonably be so made," the Supreme Court certainly did violence to congressional intent. The Solid Waste Agency Court justified such violence as a resolution of what it perceived to be an inherent conflict between arguments for expanded CWA jurisdiction and Congress' desire to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . . ."

[31 ELR 10527]

If the Solid Waste Agency Court had looked beyond § 404 and "waters of the United States," however, it would have found that there is, in fact, no statutory conflict between federalism and Congress' intent to restore the water quality of all of this country's waters. It would have found that, within this broader CWA context, Congress used the term "navigable waters" to recognize and preserve state authority over certain types of waters rather than to undermine it. Unfortunately, the Solid Waste Agency Court's statutory perspective was not broad enough, and both the § 404 and the NPDES permit programs are likely to suffer as a result.

1. See, e.g., Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 191 F.3d 845, 849-51, 30 ELR 20161, 20162-63 (7th Cir. 1999); United States v. Wilson, 133 F.3d 251, 256-57, 28 ELR 20299, 20300-01 (4th Cir. 1997); Leslie Salt Co. v. United States, 55 F.3d 1388, 1390-95, 25 ELR 21046, 21047-49 (9th Cir. 1995); Leslie Salt Co. v. United States, 896 F.2d 354, 355-60, 20 ELR 20477, 20478-81 (9th Cir. 1990).

2. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

3. Id. § 1344(a), (d), ELR STAT. FWPCA § 404(a), (d).

4. See Leslie Salt Co., 896 F.2d at 360, 20 ELR at 20480; United States v. Rivera Torres, 826 F.2d 151, 155, 17 ELR 21285, 21286-87 (1st Cir. 1987); Utah v. Marsh, 740 F.2d 799, 804, 14 ELR 20683, 20687 (10th Cir. 1984); Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897, 916 n.33, 13 ELR 20942, 20951 n.33 (5th Cir. 1983); United States v. Lambert, 695 F.2d 536, 538, 13 ELR 20436, 20437 (11th Cir. 1983); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55, 8 ELR 20480, 20485-86 (9th Cir. 1978); Minnesota v. Hoffman, 543 F.2d 1198, 1200 n.1, 7 ELR 20066, 20066 n.1 (8th Cir. 1976); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1325, 4 ELR 20784, 20787-88 (6th Cir. 1974); Puerto Rico v. Alexander, 438 F. Supp. 90, 95, 7 ELR 20751, 20753 (D.D.C. 1977).

5. The U.S. Environmental Protection Agency (EPA) administers most of the CWA's programs. See, e.g., 33 U.S.C. § 1342(a), ELR STAT. FWPCA § 402 (giving the Administrator of EPA authority to issue permits for the discharge of pollutants).

6. 33 U.S.C.§§ 401-418.

7. 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986) (announcing rules that became effective January 12, 1987).

8. See Solid Waste Agency, 191 F.3d at 849-51, 30 ELR at 20162-63; Wilson, 133 F.3d at 256-57, 28 ELR at 20300-01; Leslie Salt Co., 55 F.3d at 1390-95, 25 ELR at 21046-49; Leslie Salt Co., 896 F.2d at 355-60, 20 ELR at 20477-81.

9. 121 S. Ct. 675 (2001).

10. Id. at 683.

11. Pub. L. No. 95-217, § 1, 91 Stat. 1567 (Dec. 27, 1977).

12. 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a).

13. Id. § 1251(a)(1), ELR STAT. FWPCA § 101(a)(1).

14. Id. § 1251(a)(2), ELR STAT. FWPCA § 101(a)(2).

15. See id. § 1251(a)(3), ELR STAT. FWPCA § 101(a)(3).

16. See id. § 1251(a)(6), ELR STAT. FWPCA § 101(a)(6).

17. See id. § 1251(a)(7), ELR STAT. FWPCA § 101(a)(7).

18. Id. § 1251(b), ELR STAT. FWPCA § 101(b).

19. Id. § 1251(a)(4), ELR STAT. FWPCA § 101(a)(4); see also id. §§ 1281-1299, ELR STAT. FWPCA §§ 201-219 (establishing a grant program for state construction of treatment works).

20. Id. § 1251(a)(5), ELR STAT. FWPCA § 101(a)(5); see also id. § 1288, ELR STAT. FWPCA § 208 (outlining the state planning process for areawide waste treatment plans).

21. Id. § 1311(a), ELR STAT. FWPCA § 301(a).

22. Id. § 1362(12), ELR STAT. FWPCA § 502(12).

23. See id. § 1362(6), ELR STAT. FWPCA § 502(6) (defining "pollutant" to mean "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." Id.).

24. Id. § 1362(14), ELR STAT. FWPCA § 502(14).

25. Although discharges of pollutants from vessels into the contiguous zone or the ocean are not technically "discharges of pollutants" for purposes of § 301, they do not escape CWA regulation. Vessels are required to have and use federally-approved marine sanitation devices for their sewage, id. § 1322, ELR STAT. FWPCA § 312, and they are prohibited from discharging oil or hazardous substances

into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or in connection with activities under the Outer Continental Shelf Lands Act [43 U.S.C. §§ 1331 et seq.] or the Deepwater Port Act of 1974 [33 U.S.C. §§ 1501 et seq.], or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. §§ 1801 et seq.].

33 U.S.C. § 1321(b)(1), ELR STAT. FWPCA § 311(b)(1).

26. See 33 U.S.C. § 1342(a), ELR STAT. FWPCA § 402(a).

27. See id. "Effluent limitations" include "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance." Id. § 1362(11), ELR STAT. FWPCA § 502(11). Standard effluent limitations are technology-based standards governing the discharge of pollutants. Id. § 1311(b)(1)(A), (2)(A), (E), ELR STAT. FWPCA § 301(b)(1)(A), (2)(A), (E). However, when technology-based effluent limitations are insufficient to ensure water quality that will protect "public health, public water supplies, agricultural and industrial uses, [protect] . . . a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the water," the EPA must set water quality-based effluent limitations. Id. § 1312(a), ELR STAT. FWPCA § 302(a).

New source performance standards are national standards that apply to new sources of water pollution and that reflect "the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology . . . ." Id. § 1316(a)(1), ELR STAT. FWPCA § 306(a)(1). Dischargers discharging toxic pollutants, in turn, must comply with limitations based on "the best available technology economically achievable for the applicable category or class of point sources . . . ." Id. § 1317(a)(2), ELR STAT. FWPCA § 307(a)(2). Pretreatment standards apply to discharges into publicly owned treatment works. See id. § 1317(b)(1), ELR STAT. FWPCA § 307(b)(1).

Finally, ocean discharge criteria apply only to "discharge[s] into the territorial sea, the waters of the contiguous zone, or the oceans" and consist of "guidelines for determining the degradation of the waters of the territorial seas, the contiguous zones, and the oceans . . . ." Id. § 1343(a), (c), ELR STAT. FWPCA § 403(a), (c). These guidelines consider such issues as "the effect of disposal of pollutants on human health or welfare, including but not limited to plankton, fish, shellfish, wildlife, shorelines, and beaches" and the effect "on marine life . . . ." Id. § 1343(c)(1)(A), (B), ELR STAT. FWPCA § 403(c)(1)(A), (B).

28. Id. § 1344(d), ELR STAT. FWPCA § 404(d).

29. Id. § 1344(a), ELR STAT. FWPCA § 404(a) (emphasis added).

30. Id. § 1344(c), ELR STAT. FWPCA § 404(c).

31. Id. § 1362(7), ELR STAT. FWPCA § 502(7).

32. Id. § 1362(8), ELR STAT. FWPCA § 502(8).

33. 33 C.F.R. § 323.2(c).

34. Id. § 323.2(d)(1). The D.C. Circuit has invalidated the definition of "discharge of dredged material" as it applies to "incidental fallback" of dredged material, National Mining Ass'n v. Corps of Eng'rs, 145 F.3d 1399, 1406-08, 28 ELR 21318, 21321-22 (D.C. Cir. 1998), and the Corps has proposed new regulations to deal with that decision. See Further Revisions to the Clean Water Act Regulatory Definition of "Discharge of Dredged Material," 65 Fed. Reg. 50108, 50109 (Aug. 16, 2000). This issue, however, is not material to the current discussion.

35. 33 C.F.R. § 323.2(e).

36. Id. § 323.2(f).

37. Id. § 328.3(a); see also 40 C.F.R. § 230.3(s) (EPA regulation containing an identical definition of "waters of the United States" for its CWA programs).

38. See Leslie Salt Co. v. United States, 896 F.2d 354, 360, 20 ELR 20477, 20480 (9th Cir. 1990); United States v. Rivera Torres, 826 F.2d 151, 155, 17 ELR 21285, 21286-87 (1st Cir. 1987); Utah v. Marsh, 740 F.2d 799, 804, 14 ELR 20683, 20687 (10th Cir. 1984); Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897, 916 n.33, 13 ELR 20942, 20951 n.33 (5th Cir. 1983); United States v. Lambert, 695 F.2d 536, 538, 13 ELR 20436, 20437 (11th Cir. 1983); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55, 8 ELR 20480, 20485-86 (9th Cir. 1978); Minnesota v. Hoffman, 543 F.2d 1198, 1200 n.1, 7 ELR 20066, 20066 n.1 (8th Cir. 1976); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1325, 4 ELR 20784, 20787-88 (6th Cir. 1974); Puerto Rico v. Alexander, 438 F. Supp. 90, 95, 7 ELR 20751, 20753 (D.D.C. 1977).

39. 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986).

40. 474 U.S. 121, 16 ELR 20086 (1985).

41. Id. at 123, 16 ELR at 20086.

42. See id. at 124, 16 ELR at 20087.

43. See id.

44. Id. at 126, 16 ELR at 20087.

45. Id.

46. Id. at 126-27, 16 ELR at 20087 (citing Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 293-97, 11 ELR 20569, 20578-80 (1981)).

47. Id. at 128, 16 ELR at 20087-88 (citing Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-95 (1985); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 341-56 (1936)).

48. Id. at 129, 16 ELR at 20088.

49. See id.

50. Id. (quoting 33 C.F.R. § 323.2(c)).

51. Id. at 129-30, 16 ELR at 20088.

52. See id. at 130, 16 ELR at 20088.

53. See id. at 130-31, 16 ELR at 20088.

54. Id. at 131, 16 ELR at 20088 (citing Chemical Mfrs. Ass'n v. Natural Resources Defense Council, 470 U.S. 116, 125, 15 ELR 20230, 20233 (1985); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45, 14 ELR 20507, 20509 (1984)).

55. Id.

56. Id. at 131 n.8, 16 ELR at 20088 n.8 (internal citation omitted).

57. Id. at 132, 16 ELR at 20088 (emphasis added).

58. Id. 16 ELR at 20089.

59. Id. (quoting 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a)).

60. Id. at 132-33, 16 ELR at 20089 (citing H.R. REP. NO. 92-911, at 76 (1972), and quoting S. REP. NO. 92-414, at 77, reprinted in 1972 U.S.C.C.A.N. 3668, 3742).

61. Id. at 133, 16 ELR at 20089.

62. Id. (citing S. CONF. REP. NO. 92-1236, at 144 (1972); 118 CONG. REC. 33756-57 (1972) (statement of Rep. Dingell)) (emphasis added).

63. Id.

64. Id. (relying on 42 Fed. Reg. 37128 (July 19, 1977)).

65. Id. at 134, 16 ELR at 20089.

66. Id. at 135-36, 16 ELR at 20089-90.

67. Id. at 136, 16 ELR at 20090 (citing H.R. 3199, 95th Cong. § 16 (1977); S. 1952, 95th Cong. § 49(b) (1977); 123 CONG. REC. 26710-11 (1977)).

68. Id.

69. Id. at 137, 16 ELR at 20090 (quoting 123 CONG. REC. 39209 (1977)).

70. Id. (citing Bob Jones Univ. v. United States, 461 U.S. 574, 599-601 (1983); United States v. Rutherford, 442 U.S. 544, 554 & n.10 (1979)).

71. Id. (emphasis in original) (internal citations omitted).

72. See 33 U.S.C. § 1344(g)(1), ELR STAT. FWPCA § 404(g)(1).

73. See Pub. L. No. 95-217, § 67, 91 Stat. 1600 (1977).

74. 33 U.S.C. § 1344(g)(1), ELR STAT. FWPCA § 404(g)(1) (emphasis added).

75. Riverside Bayview Homes, 474 U.S. at 138, 16 ELR at 20090 (quoting 33 U.S.C. § 1344(g)(1), ELR STAT. FWPCA § 404(g)(1)).

76. See id.

77. See id. at 139, 16 ELR at 20090 (citing 33 U.S.C. § 1288(i)(2), ELR STAT. FWPCA § 208(i)(2)).

78. Id. (quoting Red Lion Broad. Co. v. Federal Communications Comm'n, 395 U.S. 367, 375 (1969)).

79. Id.

80. See Leslie Salt Co. v. United States, 896 F.2d 354, 360, 20 ELR 20477, 20480 (9th Cir. 1990); United States v. Rivera Torres, 826 F.2d 151, 155, 17 ELR 21285, 21286-87 (1st Cir. 1987); Utah v. Marsh, 740 F.2d 799, 804, 14 ELR 20683, 20687 (10th Cir. 1984); Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897, 916 n.33, 13 ELR 20942, 20951 n.33 (5th Cir. 1983); United States v. Lambert, 695 F.2d 536, 538, 13 ELR 20436, 20437 (11th Cir. 1983); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55, 8 ELR 20480, 20485-86 (9th Cir. 1978); Minnesota v. Hoffman, 543 F.2d 1198, 1200 n.1, 7 ELR 20066, 20066 n.1 (8th Cir. 1976); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1325, 4 ELR 20784, 20787-88 (6th Cir. 1974); Puerto Rico v. Alexander, 438 F. Supp. 90, 95, 7 ELR 20751, 20753 (D.D.C. 1977).

81. 896 F.2d 354, 20 ELR 20477 (9th Cir. 1990).

82. See id. at 355-56, 20 ELR at 20478.

83. Id. at 357, 20 ELR at 20479 (citing Froehlke, 578 F.2d at 755, 8 ELR at 20486 (citing California v. EPA, 511 F.2d 963, 964 n.1, 5 ELR 20213, 20213 n.1 (9th Cir. 1975), rev'd on other grounds, 426 U.S. 200, 6 ELR 20563 (1976))).

84. Id. at 358, 20 ELR at 20479 (citing Swanson v. United States, 789 F.2d 1368, 16 ELR 20799 (9th Cir. 1986); United States v. Tull, 769 F.2d 182, 184, 15 ELR 21061, 21063 (4th Cir. 1985), rev'd on other grounds, 481 U.S. 412, 414 n.1, 17 ELR 20667, 20668 n.1 (1987); United States v. DeFelice, 641 F.2d 1169, 1175, 11 ELR 20505, 20506-07 (5th Cir. 1981); Track 12, Inc. v. District Eng'r, 618 F. Supp. 448, 449, 16 ELR 20163, 20164 (D. Minn. 1985)).

85. Id. at 359, 20 ELR at 20480 (citing 33 C.F.R. §§ 328.5, 329.8).

86. Id. at 360, 20 ELR at 20480 (citing Tull, 769 F.2d at 182, 15 ELR at 21061, rev'd on other grounds, 481 U.S. at 412, 17 ELR at 20667; Stoeco Dev., Ltd. v. Corps of Eng'rs, 701 F. Supp. 1075, 19 ELR 20634 (D.N.J. 1988); United States v. Akers, 651 F. Supp. 320, 17 ELR 20702 (E.D. Cal. 1987); Track 12, Inc., 618 F. Supp. at 448, 16 ELR at 20163; United States v. Ciampitti, 583 F. Supp. 483 (D.N.J. 1984), aff'd, 772 F.2d 893 (3d Cir. 1985)).

87. Id., 20 ELR at 20480-81 (referencing 33 C.F.R. § 328.3(a)(3) and citing Quivira Mining Co. v. EPA, 765 F.2d 126, 130, 15 ELR 20530, 20531 (10th Cir. 1985); United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 1187, 5 ELR 20308, 20310 (D. Ariz. 1975)).

88. Id. (citing Utah v. Marsh, 740 F.2d 799, 804, 14 ELR 20683, 20684 (10th Cir. 1984); Palila v. Hawaii Dep't of Land & Natural Resources, 471 F. Supp. 985, 991-95, 9 ELR 20426, 20428-29 (D. Haw. 1979), aff'd, 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981); Hughes v. Oklahoma, 441 U.S. 322, 329-36, 9 ELR 20360, 20364-65 (1979)).

89. 514 U.S. 549 (1995).

90. Id. at 557 (quoting National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

91. Id. at 558.

92. Id.

93. Id.

94. Id. at 558-59.

95. 55 F.3d 1388, 25 ELR 21046 (9th Cir. 1995).

96. Id. at 1390, 25 ELR at 21046.

97. See id. at 1390-91, 25 ELR at 21047.

98. Id. at 1392, 25 ELR at 21048 (quoting Leslie Salt Co. v. United States, 896 F.2d 354, 360, 20 ELR 20477, 20 ELR 20480 (9th Cir. 1990)).

99. 5 U.S.C. § 503, available in ELR STAT. ADMIN. PROC.

100. See Leslie Salt Co., 55 F.3d at 1394, 25 ELR at 21049.

101. Id. (citing United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 16 ELR 20086, 20088 (1985) (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45, 14 ELR 20507, 20509 (1984))).

102. Id. (citing 33 U.S.C. § 1251(a)(2), ELR STAT. FWPCA § 101(a)(2)).

103. Id. at 1394-95, 25 ELR at 21049 (citing S. REP. NO. 1236, at 144 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3776; Rueth v. EPA, 13 F.3d 227, 231, 24 ELR 20214, 20216 (7th Cir. 1993)).

104. Id. at 1395, 25 ELR at 21049.

105. See id.

106. Id. (citing United States v. Evans, 928 F.2d 858, 862 (9th Cir. 1991); Columbia Gorge United-Protecting People & Property v. Yeutter, 960 F.2d 110, 113, 22 ELR 20947, 20948 (9th Cir. 1992) (quoting Wickard v. Filburn, 317 U.S. 111, 127-28 (1942))).

107. Id. at 1396, 25 ELR at 21050 (citing Hughes v. Oklahoma, 441 U.S. 322, 329-36, 9 ELR 20360, 20364-65 (1979); Palila v. Hawaii Dep't of Land & Natural Resources, 471 F. Supp. 985, 995, 9 ELR 20426, 20429 (D. Haw. 1979), aff'd, 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981)).

108. Id.

109. Cargill, Inc. v. United States, 516 U.S. 955, 26 ELR 20001 (1995).

110. Id. at 959, 26 ELR at 20002.

111. 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997).

112. Id. at 257, 28 ELR at 20301 (emphasis in original).

113. Id. at 256, 28 ELR at 20301 (citing United States v. Lopez, 514 U.S. 548, 558-59 (1995); Printz v. United States, 521 U.S. 898 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); New York v. United States, 505 U.S. 144, 22 ELR 21082 (1992)) (emphasis in original) (internal citation omitted).

114. 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999).

115. Id. at 847, 30 ELR at 20161.

116. Id. at 847-48, 30 ELR at 20161.

117. See id.

118. Id.

119. Id., 30 ELR at 20162

120. See id. at 848-49, 30 ELR at 20162.

121. See id. at 849, 30 ELR at 20162.

122. Id. SWANCC also argued that the migratory bird rule violated the notice-and-comment provisions of the federal Administrative Procedure Act, 5 U.S.C. § 553, available in ELR STAT. ADMIN. PROC., but the court held that the migratory bird rule is an interpretive rule and therefore exempt from the APA's notice-and-comment requirements. Id. at 852-53, 30 ELR at 20163.

123. Id. at 850, 30 ELR at 20162.

124. See id.

125. Id. (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1017 (1993)).

126. Id. (quoting United States v. Lopez, 514 U.S. 549, 567-68 (1995)).

127. Id. at 851, 30 ELR at 20162 (citing to the Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, U.S.-Japan, 25 U.S.T. 3331 (1972); Convention for the Protection of Migratory Birds and Game Mammals, U.S.-Mexico, 50 Stat. 1311, T.S. No. 912 (1936); Convention for the Protection of Migratory Birds, U.S.-Great Britain, 39 Stat. 1702, T.S. No. 628 (1916)).

128. Id., 30 ELR at 20163 (citing U.S. CONST. art. VI, cl. 2).

129. Id.

130. Id.

131. See id (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984)).

132. Id. (citing Rueth v. EPA, 13 F.3d 227, 231, 24 ELR 20214, 20216 (7th Cir. 1993); United States v. Huebner, 752 F.2d 1235, 1239, 15 ELR 20083, 20084 (7th Cir. 1985); United States v. Byrd, 609 F.2d 1204, 1209, 9 ELR 20757, 20760 (7th Cir. 1979)).

133. See Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 120 S. Ct. 2003 (2000).

134. 121 S. Ct. at 680.

135. 33 U.S.C. § 1344(a), ELR STAT. FWPCA § 404(a).

136. 121 S. Ct. at 678 (quoting 33 U.S.C. § 1344(a), ELR STAT. FWPCA § 404(a)).

137. Id. (quoting 33 U.S.C. § 1362(7), ELR STAT. FWPCA § 502(7)).

138. Id. (citing 51 Fed. Reg. at 41217).

139. Id. at 680 (quoting 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a)).

140. Id. (quoting 33 U.S.C. § 1251(b), ELR STAT. FWPCA § 101(b)).

141. Id. (quoting Riverside Bayview Homes, 474 U.S. at 133, 16 ELR at 20089).

142. Id. (citing and quoting Riverside Bayview Homes, 474 U.S. at 134, 135-39, 16 ELR at 20089-90).

143. Id.

144. 33 U.S.C. §§ 401-418.

145. 33 C.F.R. § 209.120(d)(1). In comparison, "navigable waters" for purposes of the Rivers and Harbors Act "are those waters that are subject to the ebb and flow of the tide and/or 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. § 329.4.

146. Solid Waste Agency, 121 S. Ct. at 680 (quoting 33 C.F.R. § 209.260(e)(1)).

147. Id.

148. Id. at 680 n.3 (quoting S. CONF. REP. NO. 92-1236, at 144 (1972)).

149. 33 C.F.R. § 323.2(a)(5) (1978).

150. SWANCC, 121 S. Ct. at 682.

151. See id.

152. Id. (quoting Riverside Bayview Homes, 474 U.S. at 133, 16 ELR at 20089).

153. Id.

154. Id. at 682-83 (citing United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407-08 (1940)) (emphasis added).

155. Id. at 683 (citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)).

156. Id. (citing United States v. Bass, 404 U.S. 336, 349 (1971)).

157. Id. at 684 (citing Hess v. Port Auth. Trans-Hudson Corp., 53 U.S. 30, 44 (1994) (emphasis added)).

158. Id.

159. See, e.g., Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 324 (1816) (emphasizing that the ultimate governing power in the United States is with the people).

160. Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 370-71 (1976).

161. United States v. Lopez, 514 U.S. 549, 557 (quoting National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

162. U.S. CONST. amend. X.

163. 505 U.S. 144, 22 ELR 21082 (1992).

164. Id. at 156, 22 ELR at 21098.

165. Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 121 S. Ct. 675, 684 (2001).

166. 33 U.S.C. § 1251(b), ELR STAT. FWPCA § 101(b) (emphasis added).

167. S. REP. NO. 92-414 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3678.

168. Id.

169. Id. at 3669-75; see also E.I. DuPont de Nemours & Co. v. Train, 528 F.2d 1136, 1137-38, 6 ELR 20117, 20117 (4th Cir. 1975), aff'd, 430 U.S. 112, 7 ELR 20191 (1977) (discussing the changes that the 1972 legislation made and the increased federal role).

170. See, e.g., Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 471-85, 18 ELR 20483, 20484-86 (1988) (quieting title to submerged lands in the state of Mississippi rather than in private landowners).

171. Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892).

172. Shively v. Bowlby, 152 U.S. 1, 57 (1894).

173. Id.

174. Id.; see also Pollard's Lessee v. Hagan, 44 U.S. 212, 224 (1845).

175. See United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407-09 (1940).

176. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 478-81, 18 ELR 20483, 20485 (1988).

177. See., e.g., Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82, 87-88 (1913).

178. Id.

179. 33 U.S.C. §§ 401, 403.

180. 33 C.F.R. § 329.4.

181. 77 U.S. (10 Wall.) 557 (1870).

182. See id. at 563-66.

183. Id. at 563 (emphasis added).

184. United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407-09 (1940).

185. 22 U.S. 1 (1824).

186. Id. at 76.

187. Id. at 197.

188. Id. at 73.

189. Id. at 92.

190. Kaiser Aetna v. United States, 444 U.S. 164, 170-72, 10 ELR 20042, 20044-45 (1979).

191. Id. at 173-74, 10 ELR at 20044-45 (internal citations omitted).

192. 332 U.S. 19 (1947).

193. Id. at 30.

194. Id. at 23.

195. Id. at 31.

196. Id. at 32.

197. Id. at 34.

198. Id. at 38-39.

199. 43 U.S.C. §§ 1301-1303, 1311-1315.

200. Id. § 1311(a).

201. Id. § 1301(a)(1), (2).

202. Id. § 1312.

203. See id. § 1311(b).

204. Id. § 1314(a).

205. See, e.g., United States v. Alaska, 503 U.S. 569, 575-76 (1992) (according Chevron deference to the Secretary of the Army's requirement that Alaska disclaim title to an artificially expanded coastline as a condition of a permit under the Rivers and Harbors Act of 1899); United States v. Republic Steel Corp., 362 U.S. 482, 490 n.5 (1960) (giving "great weight" to the Army Corps' construction of what constitutes a forbidden "obstruction" in the Rivers and Harbors Act of 1899).

206. United States v. Alaska, 503 U.S. 569, 572-73 (1992).

207. See id. at 585.

208. Id. at 585-86.

209. 120 S. Ct. 1135 (1999).

210. 33 U.S.C. § 2718, ELR STAT. OPA § 1018.

211. 33 U.S.C. § 1225(b).

212. Locke, 120 S. Ct. at 1147.

213. Id. at 1148.

214. Id. at 1143.(NEWLINE)

215. Id. at 1147-48.

216. See JOSEPH J. KALO ET AL., OCEAN AND COASTAL LAW: CASES AND MATERIALS 322 (1999).

217. Id. at 318.

218. Id. at 324.

219. See id. at 328.

220. Id.

221. See id. at 329.

222. See id. at 333, 337.

223. See id. at 341.

224. Id. at 346 (quoting Article 56(1) of the 1982 convention).

225. Id. at 336; see also Pub. L. No. 94-265, §§ 3(11), 101, 90 Stat. 331 (1976) (enacting the Magnuson-Stevens Fisheries Conservation and Management Act).

226. See Exclusive Economic Zone of the United States of America, Proclamation No. 5030, 48 Fed. Reg. 10605 (Mar. 10, 1983).

227. See Territorial Sea of the United States of America, Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988).

228. See Contiguous Zone of the United States, Proclamation No. 7219, 64 Fed. Reg. 48701 (Aug. 2, 1999).

229. 33 U.S.C. § 1342(a), ELR STAT. FWPCA § 402(a).

230. Id. § 1362(12), ELR STAT. FWPCA § 502(12) (emphasis added).

231. See id. § 1362(9), ELR STAT. FWPCA § 502(9).

232. See KALO ET AL., supra note 216, at 343-44.

233. See 64 Fed. Reg. at 48701.

234. 33 U.S.C. § 1362(10), ELR STAT. FWPCA § 502(10).

235. Id. § 1362(7), ELR STAT. FWPCA § 502(7).

236. Id. § 1362(8), ELR STAT. FWPCA § 502(8).

237. See Natural Resources Defense Council v. EPA, 863 F.2d 1420, 1434-35, 19 ELR 20225, 20232 (9th Cir. 1988) (holding that when EPA issued an NPDES permit that authorized discharges of pollutants seaward of the three-mile-wide territorial seas, no state certification was required under § 401 because the discharge did not affect the state's navigable waters: the discharge was not in the territorial sea, and "navigable waters include only those waters landward from the outer boundary of the territorial seas") (emphasis in original).

238. 40 C.F.R. § 230.3(s).

239. See Pacific Legal Found. v. Costle, 586 F.2d 650, 655-56, 8 ELR 20731, 20734 (9th Cir. 1978) (holding that EPA has the exclusive authority to issue NPDES permits for discharges beyond the territorial sea).

240. See S. REP. NO. 92-414 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3743 ("The Committee has added definitions of the terms territorial seas, contiguous zone, and ocean to describe clearly the jurisdictional limits of the Act, and provide a basis for its relationship to other laws of the United States as well as to international law.").

241. See 33 U.S.C. § 1342(a)(5), (b), ELR STAT. FWPCA § 402(a)(5), (b).

242. See id. § 1342(d), ELR STAT. FWPCA § 402(d).

243. Id., § 1342(a)(5), ELR STAT. FWPCA § 402(a)(5) (emphasis added).

244. See id. § 1311(b), ELR STAT. FWPCA § 301(b).

245. See id. § 1313(a), ELR STAT. FWPCA § 303(a).

246. See id. §§ 1342(a), 1343, ELR STAT. FWPCA §§ 403(a), 404.

247. See id. § 1313(a), ELR STAT. FWPCA § 303(a). Accord, Natural Resource Defense Council v. EPA, 16 F.3d 1395, 1401, 24 ELR 20496, 20498 (4th Cir. 1993); Mississippi Comm'n on Natural Resources v. Costle, 625 F.2d 1269, 1275, 10 ELR 20931, 20933 (5th Cir. 1980).

248. 33 U.S.C. § 1313(a)(1), (2), ELR STAT. FWPCA § 303(a)(1), (2).

249. See id. § 1313(a)(3), ELR STAT. FWPCA § 303(a)(3).

250. See id. § 1311(b), ELR STAT. FWPCA § 301(b).

251. Id. § 1362(11), ELR STAT. FWPCA § 502(11) (emphasis added).

252. See id. § 1343(a), ELR STAT. FWPCA § 403(a) (emphasis added).

253. See id. § 1343(b), ELR STAT. FWPCA § 403(b).

254. 121 S. Ct. at 683.

255. 33 U.S.C. § 1344(a), ELR STAT. FWPCA § 404(a) (emphasis added).

256. Id. § 1344(f)(1)(A), ELR STAT. FWPCA § 404(f)(1)(A).

257. Id. § 1344(f)(1)(B), ELR STAT. FWPCA § 404(f)(1)(B).

258. See id. § 1344(f)(1)(F), ELR STAT. FWPCA § 404(f)(1)(F).

259. Id. § 1344(g)(1), ELR STAT. FWPCA § 404(g)(1).

260. H.R. REP. NO. 95-830, at 104 (1977), reprinted in 1977 U.S.C.C.A.N. 4424, 4479.

261. See 121 S. Ct. at 682.

262. H.R. REP. NO. 95-830, at 99 (1977), reprinted in 1977 U.S.C.C.A.N. at 4474; see also id. at 103-04, reprinted in 1977 U.S.C.C.A.N. at 4478-79 ("This new subsection is not to be construed as affecting or impairing the authority of the Secretary to maintain navigation.").

263. 121 S. Ct. at 687-88 (quoting S. REP. NO. 92-1236, at 144 (1972) and citing The Daniel Ball, 10 Wall. 557 (1871); Gilman v. Philadelphia, 3 Wall. 713 (1866); Gibbons v. Ogden, 9 Wheat. 1 (1824)).

264. Id. at 692 (quoting H.R. REP. NO. 95-830, at 101 (1977), reprinted in 1977 U.S.C.C.A.N. at 4476; S. REP. NO. 95-370, at 75 (1977), reprinted in 1977 U.S.C.C.A.N. at 4400; 40 Fed. Reg. 31325-26 (July 25, 1975)).

265. Id. at 684.

31 ELR 10508 | Environmental Law Reporter | copyright © 2001 | All rights reserved