Federal Register / Vol. 68, No. 10 /Wednesday, January 15, 2003 / Proposed Rules 1995

Appendix A 

Joint Memorandum 

Introduction

This document provides clarifying 

guidance regarding the Supreme Court’s 

decision in Solid Waste Agency of Northern 

Cook County v. United States Army Corps of 

Engineers, 531 U.S. 159 (2001) (‘‘SWANCC’’) 

and addresses several legal issues concerning 

Clean Water Act (‘‘CWA’’) jurisdiction that 

have arisen since SWANCC in various factual 

scenarios involving federal regulation of 

‘‘navigable waters.’’ Because the case law 

interpreting SWANCC has developed over 

the last two years, the Agencies are issuing 

this updated guidance, which supersedes 

prior guidance on this issue. The Corps and 

EPA are also initiating a rulemaking process 

to collect information and to consider 

jurisdictional issues as set forth in the 

attached ANPRM. Jurisdictional decisions 

will be based on Supreme Court cases 

including United States v. Riverside Bayview 

Homes, 474 U.S. 121 (1985) and SWANCC,

regulations, and applicable case law in each 

jurisdiction. 

Background 

In SWANCC, the Supreme Court held that 

the Army Corps of Engineers had exceeded 

its authority in asserting CWA jurisdiction 

pursuant to section 404(a) over isolated, 

intrastate, non-navigable waters under 33 

C.F.R. 328.3(a)(3), based on their use as 

habitat for migratory birds pursuant to 

preamble language commonly referred to as 

the ‘‘Migratory Bird Rule,’’ 51 FR 41217 

(1986). ‘‘Navigable waters’’ are defined in 

section 502 of the CWA to mean ‘‘waters of 

the United States, including the territorial 

seas.’’ In SWANCC, the Court determined 

that the term ‘‘navigable’’ had significance in 

indicating the authority Congress intended to 

exercise in asserting CWA jurisdiction. 531 

U.S. at 172. After reviewing the jurisdictional 

scope of the statutory definition of 

‘‘navigable waters’’ in section 502, the Court 

concluded that neither the text of the statute 

nor its legislative history supported the

1996 Federal Register / Vol. 68, No. 10 / Wednesday, January 15, 2003 / Proposed Rules 

1The CWA provisions and regulations described 

in this document contain legally binding 

requirements. This document does not substitute 

for those provisions or regulations, nor is it a 

regulation itself. It does not impose legally binding 

requirements on EPA, the Corps, or the regulated 

community, and may not apply to a particular 

situation depending on the circumstances. Any 

decisions regarding a particular water will be based 

on the applicable statutes, regulations, and case 

law. Therefore, interested person are free to raise 

questions and objections about the appropriateness 

of the application of this guidance to a particular 

situation, and EPA and/or the Corps will consider 

whether or not the recommendations or 

interpretations of this guidance are appropriate in 

that situation based on the law and regulations.

2These traditional navigable waters are not 

limited to those regulated under Section 10 of the 

Rivers and Harbors Act of 1899; traditional 

navigable waters include waters which, although 

used, susceptibale to use, or historically used, to 

transport goods or people in commerce, do not form 

part of a continuous wateborne highway.

Corps’ assertion of jurisdiction over the 

waters involved in SWANCC. Id. at 170–171. 

In SWANCC, the Supreme Court 

recognized that ‘‘Congress passed the CWA 

for the stated purpose of ‘restoring and 

maintaining the chemical, physical, and 

biological integrity of the Nation’s waters’ ’’

and also noted that ‘‘Congress chose to 

‘recognize, preserve, and protect the primary 

responsibilities and rights of States to 

prevent, reduce, and eliminate pollution, to 

plan the development and use (including 

restoration, preservation, and enhancement) 

of land and water resources.’ ’’ Id. at 166–67 

(citing 33 U.S.C. 1251(a) and (b)). However, 

expressing ‘‘serious constitutional and 

federalism questions’’ raised by the Corps’

interpretation of the CWA, the Court stated 

that ‘‘where an administrative interpretation 

of a statute invokes the outer limits of 

Congress’ power, we expect a clear indication 

that Congress intended that result.’’ Id. at 

174, 172. Finding ‘‘nothing approaching a 

clear statement from Congress that it 

intended section 404(a) to reach an 

abandoned sand and gravel pit’’ (id. at 174), 

the Court held that the Migratory Bird Rule, 

as applied to petitioners’ property, exceeded 

the agencies’ authority under section 404(a). 

Id. at 174. 

The Scope of CWA Jurisdiction After 

SWANCC 

Because SWANCC limited use of 33 CFR 

§ 328.3(a)(3) as a basis of jurisdiction over 

certain isolated waters, it has focused greater 

attention on CWA jurisdiction generally, and 

specifically over tributaries to jurisdictional 

waters and over wetlands that are ‘‘adjacent 

wetlands’’ for CWA purposes. 

As indicated, section 502 of the CWA 

defines the term navigable waters to mean 

‘‘waters of the United States, including the 

territorial seas.’’ The Supreme Court has 

recognized that this definition clearly 

includes those waters that are considered 

traditional navigable waters. In SWANCC, the 

Court noted that while ‘‘the word ‘navigable’

in the statute was of ‘limited import‘ ’’

(quoting Riverside, 474 U.S. 121 (1985)), ‘‘the 

term ‘navigable’ has at least the import of 

showing us what Congress had in mind as its 

authority for enacting the CWA: traditional 

jurisdiction over waters that were or had 

been navigable in fact or which could 

reasonably be so made.’’ 531 U.S. at 172. In 

addition, the Court reiterated in SWANCC

that Congress evidenced its intent to regulate 

‘‘at least some waters that would not be 

deemed ‘navigable’ under the classical 

understanding of that term.’’ SWANCC at 171 

(quoting Riverside, 474 U.S. at 133). Relying 

on that intent, for many years, EPA and the 

Corps have interpreted their regulations to 

assert CWA jurisdiction over non-navigable 

tributaries of navigable waters and their 

adjacent wetlands. Courts have upheld the 

view that traditional navigable waters and, 

generally speaking, their tributary systems 

(and their adjacent wetlands) remain subject 

to CWA jurisdiction. 

Several federal district and appellate courts 

have addressed the effect of SWANCC on 

CWA jurisdiction, and the case law on the 

precise scope of federal CWA jurisdiction in 

light of SWANCC is still developing. While 

a majority of cases hold that SWANCC

applies only to waters that are isolated, 

intrastate and non-navigable, several courts 

have interpreted SWANCC’s reasoning to 

apply to waters other than the isolated waters 

at issue in that case. This memorandum 

attempts to add greater clarity concerning 

federal CWA jurisdiction following SWANCC

by identifying specific categories of waters, 

explaining which categories of waters are 

jurisdictional or non-jurisdictional, and 

pointing out where more refined factual and 

legal analysis will be required to make a 

jurisdictional determination. 

Although the SWANCC case itself 

specifically involved Section 404 of the 

CWA, the Court’s decision may affect the 

scope of regulatory jurisdiction under other 

provisions of the CWA as well, including the 

Section 402 NPDES program, the Section 311 

oil spill program, water quality standards 

under Section 303, and Section 401 water 

quality certification. Under each of these 

sections, the relevant agencies have 

jurisdiction over ‘‘waters of the United 

States.’’ CWA section 502(7).

This memorandum does not discuss the 

exact factual predicates that are necessary to 

establish jurisdiction in individual cases. We 

recognize that the field staff and the public 

could benefit from additional guidance on 

how to apply the applicable legal principles 

to individual cases.1 Should questions arise 

concerning CWA jurisdiction, the regulated 

community should seek assistance from the 

Corps and EPA.

A. Isolated, Intrastate Waters That are NonNavigable 

SWANCC squarely eliminates CWA 

jurisdiction over isolated waters that are 

intrastate and non-navigable, where the sole 

basis for asserting CWA jurisdiction is the 

actual or potential use of the waters as 

habitat for migratory birds that cross state 

lines in their migrations. 531 U.S. at 174 

(‘‘We hold that 33 CFR § 328.3(a)(3) (1999), 

as clarified and applied to petitioner’s balefill 

site pursuant to the ‘Migratory Bird Rule,’ 51 

FR 41217 (1986), exceeds the authority 

granted to respondents under § 404(a) of the 

CWA.’’). The EPA and the Corps are now 

precluded from asserting CWA jurisdiction in 

such situations, including over waters such 

as isolated, non-navigable, intrastate vernal 

pools, playa lakes and pocosins. SWANCC

also calls into question whether CWA 

jurisdiction over isolated, intrastate, nonnavigable waters could now be predicated on 

the other factors listed in the Migratory Bird 

Rule, 51 FR 41217 (i.e., use of the water as 

habitat for birds protected by Migratory Bird 

Treaties; use of the water as habitat for 

Federally protected endangered or threatened 

species; or use of the water to irrigate crops 

sold in interstate commerce). 

By the same token, in light of SWANCC, it 

is uncertain whether there remains any basis 

for jurisdiction under the other rationales of 

§ 328.3(a)(3)(i)–(iii) over isolated, nonnavigable, intrastate waters (i.e., use of the 

water by interstate or foreign travelers for 

recreational or other purposes; the presence 

of fish or shellfish that could be taken and 

sold in interstate commerce; use of the water 

for industrial purposes by industries in 

interstate commerce). Furthermore, within 

the states comprising the Fourth Circuit, 

CWA jurisdiction under 33 CFR § 328.3(a)(3) 

in its entirety has been precluded since 1997 

by the Fourth Circuit’s ruling in United 

States v. Wilson, 133 F. 3d 251, 257 (4th Cir. 

1997) (invalidating 33 CFR § 328.3(a)(3)). 

In view of SWANCC, neither agency will 

assert CWA jurisdiction over isolated waters 

that are both intrastate and non-navigable, 

where the sole basis available for asserting 

CWA jurisdiction rests on any of the factors 

listed in the ‘‘Migratory Bird Rule.’’ In 

addition, in view of the uncertainties after 

SWANCC concerning jurisdiction over 

isolated waters that are both intrastate and 

non-navigable based on other grounds listed 

in 33 CFR § 328.3(a)(3)(i)–(iii), field staff 

should seek formal project-specific 

Headquarters approval prior to asserting 

jurisdiction over such waters, including 

permitting and enforcement actions. 

B. Traditional Navigable Waters 

As noted, traditional navigable waters are 

jurisdictional. Traditional navigable waters 

are waters that are subject to the ebb and flow 

of the tide, or waters that are presently used, 

or have been used in the past, or may be 

susceptible for use to transport interstate or 

foreign commerce. 33 CFR § 328.3(a)(1); 

United States v. Appalachian Elec. Power 

Co., 311 U.S. 377, 407–408 (1940) (water 

considered navigable, although not navigable 

at present but could be made navigable with 

reasonable improvements); Economy Light & 

Power Co. v. United States, 256 U.S. 113 

(1911) (dams and other structures do not 

eliminate navigability); SWANCC, 531 U.S. at 

172 (referring to traditional jurisdiction over 

waters that were or had been navigable in 

fact or which could reasonably be so made).2

In accord with the analysis in SWANCC,

waters that fall within the definition of 

traditional navigable waters remain 

jurisdictional under the CWA. Thus, isolated, 

intrastate waters that are capable of 

supporting navigation by watercraft remain 

subject to CWA jurisdiction after SWANCC if 

they are traditional navigable waters, i.e., if 

they meet any of the tests for being navigablein-fact. See, e.g., Colvin v. United States 181 

F. Supp. 2d 1050 (C.D. Cal. 2001) (isolated

Federal Register / Vol. 68, No. 10 / Wednesday, January 15, 2003 / Proposed Rules 1997

man-made water body capable of boating 

found to be ‘‘water of the United States’’). 

C. Adjacent Wetlands 

(1) Wetlands Adjacent to Traditional 

Navigable Waters 

CWA jurisdiction also extends to wetlands 

that are adjacent to traditional navigable 

waters. The Supreme Court did not disturb 

its earlier holding in Riverside when it 

rendered its decision in SWANCC. Riverside

dealt with a wetland adjacent to Black Creek, 

a traditional navigable water. 474 U.S. 121 

(1985); see also SWANCC, 531 U.S. at 167 

(‘‘[i]n Riverside, we held that the Corps had 

section 404(a) jurisdiction over wetlands that 

actually abutted on a navigable waterway’’). 

The Court in Riverside found that ‘‘Congress’; 

concern for the protection of water quality 

and aquatic ecosystems indicated its intent to 

regulate wetlands ‘inseparably bound up 

with’ ’’ jurisdictional waters. 474 U.S. at 134. 

Thus, wetlands adjacent to traditional 

navigable waters clearly remain jurisdictional 

after SWANCC. The Corps and EPA currently 

define ‘adjacent’ as ‘‘bordering, contiguous, 

or neighboring. Wetlands separated from 

other waters of the United States by manmade dikes or barriers, natural river berms, 

beach dunes, and the like are ‘adjacent 

wetlands.’ ’’ 33 CFR § 328.3(b); 40 CFR 

§ 230.3(b). The Supreme Court has not itself 

defined the term ‘‘adjacent,’’ nor stated 

whether the basis for adjacency is geographic 

proximity or hydrology.

(2) Wetlands Adjacent to Non-Navigable 

Waters 

The reasoning in Riverside, as followed by 

a number of post-SWANCC courts, supports 

jurisdiction over wetlands adjacent to nonnavigable waters that are tributaries to 

navigable waters. Since SWANCC, some 

courts have expressed the view that 

SWANCC raised questions about adjacency 

jurisdiction, so that wetlands are 

jurisdictional only if they are adjacent to 

navigable waters. See, e.g., Rice v. Harken,

discussed infra. 

D. Tributaries 

A number of court decisions have held that 

SWANCC does not change the principle that 

CWA jurisdiction extends to tributaries of 

navigable waters. See, e.g., Headwaters v. 

Talent Irrigation Dist., 243 F.3d 526, 534 (9th 

Cir. 2001) (‘‘Even tributaries that flow 

intermittently are ‘waters of the United 

States’ ’’); United States v. Interstate Gen. Co,

No. 01–4513, slip op. at 7, 2002 WL 1421411 

(4th Cir. July 2, 2002), aff’ing 152 F. Supp. 

2d 843 (D. Md. 2001) (refusing to grant writ 

of coram nobis; rejecting argument that 

SWANCC eliminated jurisdiction over 

wetlands adjacent to non-navigable 

tributaries); United States v. Krilich, 393F.3d 

784 (7th Cir. 2002) (rejecting motion to vacate 

consent decree, finding that SWANCC did 

not alter regulations interpreting ‘‘waters of 

the U.S.’’ other than 33 C.F.R. § 328.3(a)(3)); 

Community Ass. for Restoration of the Env’t

v. Henry Bosma Dairy, 305 F.3d 953 (9th Cir. 

2002) (drain that flowed into a canal that 

flows into a river is jurisdictional); Idaho 

Rural Council v. Bosma, 143 F. Supp. 2d 

1169, 1178 (D. Idaho 2001) (‘‘waters of the 

United States include waters that are 

tributary to navigable waters’’); Aiello v. 

Town of Brookhaven, 136 F. Supp. 2d 81, 118 

(E.D. N.Y. 2001) (non-navigable pond and 

creek determined to be tributaries of 

navigable waters, and therefore ‘‘waters of 

the United States under the CWA’’). 

Jurisdiction has been recognized even when 

the tributaries in question flow for a 

significant distance before reaching a 

navigable water or are several times removed 

from the navigable waters (i.e., ‘‘tributaries of 

tributaries’’). See, e.g., United States v. 

Lamplight Equestrian Ctr., No. 00 C 6486, 

2002 WL 360652, at *8 (ND. Ill. Mar. 8, 2002) 

(‘‘Even where the distance from the tributary 

to the navigable water is significant, the 

quality of the tributary is still vital to the 

quality of navigable waters’’); United States

v. Buday, 138 F. Supp. 2d 1282, 1291–92 (D. 

Mont. 2001) (‘‘water quality of tributaries 

* * * distant though the tributaries may be 

from navigable streams, is vital to the quality 

of navigable waters’’); United States v. Rueth 

Dev. Co., No. 2:96CV540, 2001 WL 17580078 

(N.D. Ind. Sept. 26, 2001) (refusing to reopen 

a consent decree in a CWA case and 

determining that jurisdiction remained over 

wetlands adjacent to a non-navigable (manmade) waterway that flows into a navigable 

water). 

Some courts have interpreted the reasoning 

in SWANCC to potentially circumscribe 

CWA jurisdiction over tributaries by finding 

CWA jurisdiction attaches only where 

navigable waters and waters immediately 

adjacent to navigable waters are involved. 

Rice v. Harken is the leading case taking the 

narrowest view of CWA jurisdiction after 

SWANCC. 250 F.3d 264 (5th Cir. 2001) 

(rehearing denied). Harken interpreted the 

scope of ‘‘navigable waters’’ under the Oil 

Pollution Act (OPA). The Fifth Circuit relied 

on SWANCC to conclude ‘‘it appears that a 

body of water is subject to regulation under 

the CWA if the body of water is actually 

navigable or is adjacent to an open body of 

navigable water.’’ 250 F.3d at 269. The 

analysis in Harken implies that the Fifth 

Circuit might limit CWA jurisdiction to only 

those tributaries that are traditionally 

navigable or immediately adjacent to a 

navigable water. 

A few post-SWANCC district court 

opinions have relied on Harken or reasoning 

similar to that employed by the Harken court 

to limit jurisdiction. See, e.g., United States

v. Rapanos, 190 F. Supp. 2d 1011(E.D. Mich. 

2002) (government appeal pending) (‘‘the 

Court finds as a matter of law that the 

wetlands on Defendant’s property were not 

directly adjacent to navigable waters, and 

therefore, the government cannot regulate 

Defendant’s property.’’); United States v. 

Needham, No. 6:01–CV–01897, 2002 WL 

1162790 (W.D. La. Jan. 23, 2002) (government 

appeal pending) (district court affirmed 

finding of no liability by bankruptcy court for 

debtors under OPA for discharge of oil since 

drainage ditch into which oil was discharged 

was found to be neither a navigable water nor 

adjacent to an open body of navigable water). 

See alsoUnited States v. Newdunn, 195 F. 

Supp. 2d 751 (E.D. Va. 2002) (government 

appeal pending) (wetlands and tributaries not 

contiguous or adjacent to navigable waters 

are outside CWA jurisdiction); United States

v. RGM Corp., 222 F. Supp. 2d 780 (E.D. Va. 

2002) (government appeal pending) 

(wetlands on property not contiguous to 

navigable river and, thus, jurisdiction not 

established based upon adjacency to 

navigable water). 

Another question that has arisen is 

whether CWA jurisdiction is affected when a 

surface tributary to jurisdictional waters 

flows for some of its length through ditches, 

culverts, pipes, storm sewers, or similar 

manmade conveyances. A number of courts 

have held that waters with manmade features 

are jurisdictional. For example, in 

Headwaters Inc. v. Talent Irrigation District,

the Ninth Circuit held that manmade 

irrigation canals that diverted water from one 

set of natural streams and lakes to other 

streams and creeks were connected as 

tributaries to waters of the United States, and 

consequently fell within the purview of CWA 

jurisdiction. 243 F.3d at 533–34. However, 

some courts have taken a different view of 

the circumstances under which man-made 

conveyances satisfy the requirements for 

CWA jurisdiction. See, e.g., Newdunn, 195 F. 

Supp. 2d at 765 (government appeal pending) 

(court determined that Corps had failed to 

carry its burden of establishing CWA 

jurisdiction over wetlands from which 

surface water had to pass through a spur 

ditch, a series of man-made ditches and 

culverts as well as non-navigable portions of 

a creek before finally reaching navigable 

waters).

A number of courts have held that waters 

connected to traditional navigable waters 

only intermittently or ephemerally are 

subject to CWA jurisdiction. The language 

and reasoning in the Ninth Circuit’s decision 

in Headwaters Inc. v. Talent Irrigation 

District indicates that the intermittent flow of 

waters does not affect CWA jurisdiction. 243 

F.3d at 534 (‘‘Even tributaries that flow 

intermittently are ‘waters of the United 

States.’ ’’). Other cases, however, have 

suggested that SWANCC eliminated from 

CWA jurisdiction some waters that flow only 

intermittently. See, e.g., Newdunn, 195 F. 

Supp. 2d at 764, 767–68 (government appeal 

pending) (ditches and culverts with 

intermittent flow not jurisdictional). 

A factor in determining jurisdiction over 

waters with intermittent flows is the 

presence or absence of an ordinary high 

water mark (OHWM). Corps regulations 

provide that, in the absence of adjacent 

wetlands, the lateral limits of non-tidal 

waters extend to the OHWM (33 CFR 

328.4(c)(1)). One court has interpreted this 

regulation to require the presence of a 

continuous OHWM. United States v. RGM,

222 F. Supp. 2d 780 (E.D. Va. 2002) 

(government appeal pending). 

Conclusion 

In light of SWANCC, field staff should not 

assert CWA jurisdiction over isolated waters 

that are both intrastate and non-navigable, 

where the sole basis available for asserting 

CWA jurisdiction rests on any of the factors 

listed in the ‘‘Migratory Bird Rule.’’ In 

addition, field staff should seek formal 

project-specific HQ approval prior to 

asserting jurisdiction over waters based on

1998 Federal Register / Vol. 68, No. 10 / Wednesday, January 15, 2003 / Proposed Rules 

other factors listed in 33 CFR 328.3(a)(3)(i)–

(iii). 

Field staff should continue to assert 

jurisdiction over traditional navigable waters 

(and adjacent wetlands) and, generally 

speaking, their tributary systems (and 

adjacent wetlands). Field staff should make 

jurisdictional and permitting decisions on a 

case-by-case basis considering this guidance, 

applicable regulations, and any additional 

relevant court decisions. Where questions 

remain, the regulated community should 

seek assistance from the agencies on 

questions of jurisdiction.

Robert E. Fabricant, 

General Counsel, Environmental Protection 

Agency. 

Steven J. Morello, 

General Counsel, Department of the Army.

[FR Doc. 03–960 Filed 1–14–03; 8:45 am] 

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