EPA and Army Corps of Engineers Attempt to Define ‘Wetland’

Published May 1, 2003

The Bush administration appears poised to re-define what constitutes a “wetland” for purposes of the Clean Water Act (CWA). Doing so may expedite construction projects and agricultural activity in many parts of the country and bring some common sense to EPA’s wetland permitting program.

On January 10, 2003, EPA and the U.S. Army Corps of Engineers announced two actions long anticipated by industry and agricultural stakeholders: the issuance of a guidance document clarifying the federal government’s jurisdiction over wetlands; and an Advance Notice of Proposed Rule Making (ANPRM) that will elicit data to help EPA determine whether formal rulemaking will be necessary to further clarify the extent of the federal government’s power over wetlands.

The agencies have taken these actions in response to the U.S. Supreme Court’s decision nearly two years ago in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), which limited federal authority under the CWA to regulate isolated or intermittent wetlands.

As a general matter, “the CWA protects wetlands, streams, and other waters from discharges of pollutants by requiring permits with appropriate environmental safeguards before a discharge may be authorized.” In the SWANCC decision, the Supreme Court held the Corps had exceeded its CWA regulatory authority by using the Migratory Bird Rule to exercise “jurisdiction over isolated intrastate non-navigable ponds.” EPA claims the decision leaves unprotected one-fifth of the nation’s hundred million acres of wetlands.

Addressing industry concerns, the Undersecretary for the Army and Acting Assistant Secretary of the Army for Civil Works stated the two-pronged strategy–the guidance and ANPRM–is “important because the Corps’ … regulatory officers and the regulated community now have guidance which more clearly describes the scope of jurisdiction for which permits are required.”

According to Army officials, the ANPRM is also intended to solicit data from the regulated community that will further clarify the federal government’s role in limiting construction activity and farming near wetlands. The government’s action attempts to bolster the administration’s policy of attaining “no new net loss of wetlands.”

Field Staff Policies Outlined

According to a statement from EPA, the new guidance document affirms the following policies:

  • Field staff should continue to assert jurisdiction over traditional navigable waters (and adjacent wetlands) and, generally speaking, their tributary systems (and adjacent wetlands).
  • Field staff should not assert CWA jurisdiction over isolated waters that are both intrastate and non-navigable, where the sole basis available for asserting CWA jurisdiction rests on any of the factors listed in the Migratory Bird Rule.
  • Field staff should seek formal, project-specific headquarters approval prior to asserting jurisdiction over isolated non-navigable intrastate waters based on other types of interstate commerce links listed in current regulatory definitions of “waters of the U.S.” This is where EPA exerts major influence in stopping construction and highway projects.

The government’s action follows up on a December 26, 2002 regulatory guidance letter on compensatory mitigation and the launch of a new “National Wetlands Mitigation Action Plan listing 17 action items that federal agencies will undertake to improve the effectiveness of wetlands restoration.”

Legislation recently enacted by Congress bolsters the administration’s new policy. Under the Conservation Security Program adopted as part of the 2002 agriculture bill, farmers will receive payments for engaging in practices that enhance environmental quality, including wetlands mitigation and protection. Under the President’s budget proposal for FY 2004, unveiled on February 3, 2003, approximately $2 billion will be earmarked for the CSP over the next 10 years.

Considerations for Industry and Agriculture

By requiring EPA field staff to acquire project approval from EPA headquarters when adopting different definitions of “waters of the U.S.” for wetlands projects, the administration appears to be centralizing decision-making and expediting creation of a uniform standard with which industry may more easily comply. The administration is also making it clear EPA and Corps staff cannot declare an isolated wetland as a protected water when the sole basis for the determination arises from factors listed under the Migratory Bird Rule. Both efforts are good news for private businesses operating near protected wetlands.

Gary Baise and Bryan Brendel are attorneys with the Washington, DC-based law firm of Baise and Miller PC, specializing in legislative and regulatory affairs focusing on energy, environment, and agricultural issues.