“Waters of the United States”: Something More Than Actually Navigable Waters

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April 29, 2015

The joint initiative of the United States Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (“Corps”) to define the “waters of the United States” is the result of three U.S. Supreme Court cases that develop the “significant nexus” test of jurisdiction under the Clean Water Act (“CWA”). This article discusses the case that defined one end of the spectrum ­- the one in which all nine justices agreed that the “waters of the United States” means something beyond traditionally navigable waters. 
In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) Riverside Bayview Homes, Inc. (“Bayview”) was a developer that planned to build a housing project in a wetland that extended to a navigable waterway, Black Creek, which flows into Lake St. Claire in Michigan. Bayview placed fill materials in the wetland without having been issued a permit by the Corps. The Corps sued Bayview. A unanimous supreme court held that the jurisdiction of the CWA extends to wetlands that are adjacent to traditionally navigable waters. The decision, authored by Justice White, notes that in promulgating regulations so as to implement congressional intent, “the Corps must necessarily choose some point at which the water ends and land begins.” Defining that point is “no easy task.” The court observes that “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.”  The decision notes that where “waters” end is “far from obvious.”
The Court looked to the purpose of the Federal Water Pollution Control Act Amendments of 1972:  “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The objective of the 1972 amendments “incorporated a broad, systemic view of the goal of maintaining and improving water quality.” The Court observes that Congress intended that aquatic ecosystems be protected, which requires broad federal authority because “[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.”
The Corps had determined in its regulations that wetlands adjacent to navigable waters play a key role in protecting and enhancing water quality.
“The regulation of activities that cause water pollution cannot rely on . . . artificial lines . . . but must focus on all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other waters within that aquatic system.
For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system.”
The Supreme Court held that the Corps’ regulations were reasonable in light of the purpose of the Clean Water Act.  Accordingly, the Court interpreted the jurisdiction of the Clean Water Act to extend to wetlands that are adjacent to navigable waters.
The court acknowledges that the Corps had made an “ecological judgment about the relationship between waters and their adjacent wetlands” as providing “an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.” The regulations recognize that such wetlands may filter and purify water that drains into adjacent water bodies; they may slow the flow of runoff and thereby prevent erosion and flooding; they may serve important biological functions “including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic . . . species.” The Corps’ regulations had concluded that wetlands adjacent to navigable waters may function as integral parts of the aquatic system “even when moisture creating the wetlands does not find its source in the adjacent bodies of water.”
This article is part of a series exploring the “waters of the United States”.

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