by Robert T. Yamachika

The extent of Clean Water Act (“CWA”) jurisdiction has been a hotly debated topic over the past few years ever since the United States Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC“). In SWANCC, a divided Supreme Court (5-4) invalidated the Migratory Bird Rule which the Army Corps of Engineers (“ACOE”) used to extend the CWA’s jurisdiction to non-navigable, isolated waters used as habitat by migratory birds. Although the Court struck down the Migratory Bird Rule, it failed to make clear what waters and wetlands are subject to the CWA’s jurisdiction. This has resulted in considerable confusion and the courts have continued to struggle with determining the extent of the CWA’s jurisdiction.

Under a narrow reading of the SWANCC decision, the ACOE only lost jurisdiction over waters which are completely isolated, non-navigable, intrastate and the sole basis of the CWA’s jurisdiction is the presence of migratory birds. On the other hand, a broad reading of SWANCC would reduce the CWA’s jurisdiction to waters that are navigable in fact or are adjacent to navigable waters. The United States Court of Appeals for the Fourth Circuit rendered two decisions, United States v. Deaton, 332 F.3d 698 (4th Cir. 2003) and Treacy v. Newdunn, 344 F.3d 407 (4th Cir. 2003), and the United States Court of Appeals for the Sixth Circuit recently issued United States v. Rapanos, 339 F.3d 447 (6th Cir. 2003), all three of which adopt a narrow reading of SWANCC and uphold ACOE interpretation of CWA.

These cases establish the following rule: The CWA’s jurisdiction extends to any branch of a tributary system, including non-navigable tributaries and adjacent wetlands with a sufficient nexus, i.e. a hydrological connection, to navigable waters. This article provides a summary of each case.

United States v. Deaton, 332 F.3d 698 (4th Cir. 2003)

On June 12, 2003, the Fourth Circuit ruled that roadside ditches and culverts that are located far away from navigable waters can be considered tributaries to navigable waters making them and adjacent wetlands jurisdictional under the CWA. The case supports a narrow reading of SWANCC and defers to the ACOE’s broad interpretation of the CWA. In light of the Deaton decision it is prudent that landowners and developers evaluate whether ditches or culverts on their property are even remotely linked to a navigable water before placing any dredge or fill material in an “isolated wetland.”

The Deatons purchased a twelve-acre parcel with the intent to develop a small five-lot residential subdivision. The property had poor drainage and there was a large, low, wet area in the middle of the parcel where water stood in the winter and after heavy rainfall. The parcel sloped gently downhill towards a road. A drainage ditch ran alongside this road between the pavement and the Deaton’s property. The surface water from the Deaton’s property drained into the roadside ditch. The water from the roadside ditch took a winding, thirty-two mile path to the Chesapeake Bay. Specifically, the roadside ditch drained into a culvert under the road. On the other side of the road, the culvert drained into another ditch, which was the prong of Perdue Creek. Perdue Creek flowed into Beaverdam Creek, a natural watercourse. About eight miles from the Deaton’s property Beaverdam Creek empties into the navigable Wicomico River. About twenty-five river miles further downstream, the Wicomico River flows into the Chesapeake Bay, a vast body of navigable water.

Because of the property’s poor drainage, the Health Department denied the Deaton’s application for a sewage disposal permit. The Deatons decided to dig a drainage ditch across the property. The U.S. Soil Conservation Service advised the Deatons that a large portion of the property contained non-tidal wetlands and that he would need a 404 permit prior to undertaking any ditching work. The Deatons proceeded to dig a 1,100-foot drainage ditch across the property which connected to the roadside ditch without a 404 permit. The contractor piled the excavated dirt on either side of the ditch, a practice known as sidecasting. The ACOE promptly initiated regulatory action issuing a stop work order and warned the Deatons that no further work should be done without a 404 permit. After a lengthy period of unsuccessful negotiations, the government filed a civil complaint. The Deatons unsuccessfully challenged whether sidecasting fell under the CWA’s definition of a discharge. See United States v. Deaton, 209 F.3d 331 (4th Cir. 2000).

After remanding the case on the sidecasting issue, the Supreme Court decided SWANCC. The Deatons filed a motion asking the court to reconsider the issue of the CWA’s jurisdiction, arguing that under SWANCC the CWA could not be interpreted to extend jurisdiction to their wetlands or the roadside ditch. The district court denied the motion holding “(1) that the Deatons’ wetlands are adjacent to the roadside ditch, which is a tributary to navigable waters, (2) that ‘because there is a hydrologic connection between the Deaton wetlands and navigable waters,’ SWANCC does not bar CWA jurisdiction, and (3) that protecting the Deatons’ wetlands is reasonably related to Congress’s authority under the Commerce Clause to protect navigable waters as channels of commerce.” Deaton at 703.

The Fourth Circuit agreed with the district court. The Fourth Circuit held that Congress’s power under the Commerce Clause allows it to regulate channels of commerce and is broad enough to allow it to enact the CWA to prevent the use of navigable waters for injurious purposes. Id. at 707. The power over navigable waters also carries with it the authority to regulate non-navigable waters when that regulation is necessary to achieve Congressional goals in protecting navigable waters. The appellate court stated that “any pollutant or fill material that degrades water quality in a tributary of navigable water has the potential to move downstream and degrade the quality of the navigable waters themselves.” Id..

The Deatons maintained that even if the CWA authorizes the ACOE to regulate non-navigable tributaries of navigable waters, that the roadside ditch is not such a tributary. The Deatons argued that the ditch does not meet the definition of a tributary at all, or alternatively, it is not a tributary to a navigable water because water flowing from the ditch must pass through several non-navigable watercourses before reaching a navigable water. Id. at 708. In short, the Deatons argue that the ACOE is misinterpreting its own regulation by using the tributaries provision, 33 C.F.R. § 328.3(a)(5) to assert jurisdiction over the roadside ditch.

The precise question which the Fourth Circuit in Deaton struggled with was whether the CWA’s jurisdiction extends to distant, non-navigable tributaries of navigable waters. The court applied the Chevron test which is a two-part test. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984). The first step of the Chevron test is to ask if Congress has spoken to the precise question at issue. If so, there is no ambiguity and thus no room for the agency interpretation. However, if Congress has not spoken directly, but instead has been silent or ambiguous on the issue, it has by implication delegated authority to the agency charged with administering the statute, allowing the agency to clarify the ambiguity or fill the gap. If the court concludes that the statute is silent or ambiguous, it normally moves directly to the second step in the Chevron analysis and determines whether the agency’s regulation reflects a reasonable construction of the statute. If the agency’s interpretation is based on a reasonable construction of the statute then it will give “Chevron deference” to the agency, that is the court need not find the agency’s interpretation to be the only permissible construction or the “correct” interpretation but only that it is a sufficiently rational one to preclude a court from substituting its judgment for the agency’s.

The Fourth Circuit found that “we cannot tell from the [CWA] the extent to which non-navigable tributaries are covered. The statutory term ‘waters of the United States’ is sufficiently ambiguous to constitute an implied delegation of authority to the Corps, this authority permits the Corps to determine which waters are to be covered within the range suggested by SWANCC.” Id. at 711. The Fourth Circuit concluded that the ACOE’s current interpretation that its jurisdiction extends to any branch of a tributary system that eventually flows into a navigable body of water is reasonable and subject to deference. The appellate court gave the following explanation as to why deference was appropriate.

“In Riverside Bayview the Supreme Court concluded that the Corps regulation extending jurisdiction to adjacent wetlands was a reasonable interpretation in part because of what SWANCC described as ‘the significant nexus between the wetlands and ‘navigable waters.’ SWANCC at 167. There is also a nexus between a navigable waterway and its nonnavigable tributaries. The Corps argues, with supporting evidence, that discharges into nonnavigable tributaries and adjacent wetlands have a substantial effect on water quality in navigable waters. This nexus, in light of the ‘breadth of congressional concern for protection of water quality and aquatic ecosystems,’ [citation omitted], is sufficient to allow the Corps to determine reasonably that its jurisdiction over the whole tributary system of any navigable waterway is warranted. The regulation, as the Corps reads it, reflects a reasonable interpretation of the Clean Water Act. The Act thus reaches to the roadside ditch and its adjacent wetlands.” Deaton at 712.

United States v. Rapanos, 339 F.3d 447 (6th Cir. 2003)

On August 5, 2003, the Sixth Circuit expressly followed the Deaton case discussed above in United States v. Rapanos and held that SWANCC did not limit the CWA jurisdiction to only those wetlands which are adjacent to navigable waters. Rapanos owned a 175-acre piece of property with forested wetland and cleared meadow areas in Michigan. In order to make the property more attractive to buyers, Rapanos made plans to clear the trees and wetlands on the property. Rapanos hired a wetland consultant who determined that the property had between 49 and 59 acres of wetlands. Unhappy with the result, Rapanos asked the consultant to destroy any paper trail and threatened to fire him and sue if he did not comply. Rapanos then began to fill the wetland on his property without a 404 permit from the ACOE.

Rapanos was then charged with knowingly discharging pollutants into waters of the United States without a permit, a criminal violation. Rapanos acknowledged that the wetlands were destroyed but argued that the area was not jurisdictional under the CWA. After a mistrial and two new trials, Rapanos was eventually convicted. Rapanos appealed and filed a petition with the Supreme Court which was granted and remanded back to the district court for consideration in light of the then recent SWANCC decision. The district set aside Rapanos’ conviction and dismissed the case, finding that SWANCC had changed the scope of the CWA’s jurisdiction. The district court found that since the waters were not directly adjacent to navigable waters they were not jurisdictional. The United States appealed.

The primary question in the case was one of jurisdiction. Rapanos relied on Chief Justice Rehnquist’s frequent use in the majority opinion of the phrase “wetlands adjacent to water.” Rapanos argued that by repeatedly using this phase, the Court required that in order for jurisdiction to exist, the wetlands must be directly adjacent to navigable waters. The wetlands on Rapanos’ property were connected to a one hundred year old man-made drain which flowed into a creek which, in turn flowed into a river which is navigable. At trial, the wetlands were described as being between eleven to twenty miles from the nearest navigable-in-fact water. The Sixth Circuit was persuaded by the Deaton case and concluded that although SWANCC limited the application of the CWA, it did not restrict the CWA’s jurisdiction to only wetlands directly abutting navigable water. Rapanos at 453. The appellate court held that SWANCC requires a significant nexus between the wetlands and navigable waters, for there to be jurisdiction under the CWA. Because the wetlands are adjacent to the drain and there exists a hydrological connection among the wetlands, the drain and the river, the appellate court found an ample nexus to establish jurisdiction.

Treacy v. Newdunn, 344 F.3d 407 (2003)

On September 10, 2003, the Fourth Circuit decided Treacy v. Newdunn. Newdunn purchased 43 acres of land in Newport News, Virginia and it is undisputed that about 38 acres of the property were wetlands. The wetlands were connected to navigable waters by the flow of intermittent surface water through approximately 2.4 miles of natural streams and manmade ditches which paralleled and crossed under Interstate 64. The Fourth Circuit relied on its previous decision in Deaton, stating “this circuit has recently concluded that . . . the Corps intends to assert jurisdiction over ‘any branch of a tributary system that eventually flows into a navigable body of water.'”

Newdunn challenged the ACOE’s decision to label the manmade, Interstate 64 ditch as a tributary, an argument that the appellate court found to be foreclosed by its prior decision in Deaton. The Deaton court recognized that the ACOE has defined the word “tributary” to include the entire tributary system, including roadside ditches. The Newdunn court found that the fact that the Interstate 64 ditch was manmade rather than a natural watercourse was an irrelevant distinction. The court stated that the CWA’s primary objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” If the court were to conclude that the Interstate 64 ditch is not a tributary solely because it is manmade, the CWA’s chief goal would be subverted. Whether manmade or natural, the tributary flowed into traditional, navigable waters. Accordingly, the court found that the ACOE may permissibly define the manmade ditch as part of waters of the United States.


These three cases support a narrow reading of the SWANCC decision and support the ACOE’s position that it only lost jurisdiction over waters which are completely isolated, non-navigable, intrastate and the sole bases of jurisdiction is based on the presence of migratory birds.

They also make it clear that because SWANCC failed to clarify the extent of the CWA’s jurisdiction, that determining what waters and wetlands are subject to the CWA is far from certain. In the meantime, one thing is clear: Landowners and developers with wetlands near ditches, culverts or drains, whether manmade or natural, should evaluate whether there is even a remote possibility of a hydrological connection between the ditch, culvert or drain and a water of the United States before placing any dredge or fill material without a 404 permit.

Robert T. Yamachika is an associate with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.