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			Related Practices: Appellate and Supreme Court Land Use & Natural Resource Law Litigation Wetlands & Endangered Species

The Scope of Federal and State Jurisdiction over Navigable Waters after SWANCC v. United States

April 2001

Introduction

On January 9, 2001, the United States Supreme Court handed down a 5-4 decision that limited the authority of the federal government to regulate the disturbance of wetlands and other waters under Section 404 of the federal Clean Water Act ("CWA"). 33 U.S.C. § 1344. In its decision, Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers et al., 121 S. Ct. 675 (2001) ("SWANCC"), the Supreme Court struck down a policy of the U.S. Army Corps of Engineers (the "Corps") to exercise CWA jurisdiction over intrastate, isolated, nonnavigable bodies of water if those waters are or would be used by migratory birds. This policy, commonly known as the "Migratory Bird Rule" (51 Fed. Reg. 41,217 (1986)), had been employed by the Corps as a test to determine whether the use or disturbance of intrastate, isolated nonnavigable waters would have an effect on interstate commerce, a prerequisite to federal regulation under the U.S. Constitution. In SWANCC, the Supreme Court held that the Migratory Bird Rule was illegal because Congress intended Section 404 of the CWA to govern only navigable waters.

It is debatable whether SWANCC has reduced significantly the geographic reach of the CWA. In its ruling, the Supreme Court let stand an earlier decision that allows federal regulation of intrastate, isolated, nonnavigable waters that have some significant nexus to navigable waters.

United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). Because there are likely relatively few isolated waters that lack the kind of hydrologic or other nexus described in Riverside Bayview, and allowed under SWANCC as a basis for federal jurisdiction, the Corps' regulatory program under Section 404 remains alive and well. Nonetheless, SWANCC was a dramatic decision in many respects and definitely will affect the way in which the 404 program is administered.

First, the Supreme Court sent a clear signal of concern about the fundamental constitutionality of the federal environmental laws and the way they are administered. Although SWANCC was not decided on constitutional grounds, the Court held that the Migratory Bird Rule pushed the limits of federal authority under the "Commerce Clause" of the U.S. Constitution (discussed below) and was not entitled to the deference that the judiciary typically affords federal regulations under Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984). Moreover, the Corps indicated that a broad reading of the Clean Water Act would result in an improper impingement on the states' traditional and primary power over land and water use. As discussed below, SWANCC is one of a series of recent Supreme Court decisions suggesting that the Commerce Clause imposes real limits on federal authority, and may be a harbinger of future decisions restricting the scope of the Clean Water Act, the Federal Endangered Species Act and similar laws.

Second, constitutional questions aside, SWANCC introduces into the 404 program a renewed need for close factual and legal evaluations of the applicability of the CWA to particular bodies of water. Since the mid-1980s and up until SWANCC was decided, the reach of federal jurisdiction - under the Migratory Bird Rule and similar policies - was so broad that one typically could assume that any wetland was subject to federal jurisdiction if it met the technical definition of a wetland. Now, one must consider a variety of factual questions in determining whether a 404 permit is required for the disturbance of wetlands and other waters (e.g., Is it navigable? If not, is it "adjacent" to or a "tributary" of a navigable water? What hydrologic or other connections exist between a particular wetland and other, navigable waters?). This will spawn new disputes between the federal government and the regulated public and, undoubtedly, additional litigation.

Third, because the jurisdiction of a variety of federal agencies often depends upon whether a particular water is subject to regulation under Section 404, SWANCC will affect the jurisdiction of those agencies where it affects the jurisdiction of the Corps. Affected agencies undoubtedly will include EPA and the U.S. Fish and Wildlife Service ("USFWS"). Even where these agencies' jurisdiction do not depend on Corps involvement, SWANCC may have an impact. For example, SWANCC has probably limited directly the jurisdiction of EPA under other provisions of the Clean Water Act. Moreover, the states will be left with the question of whether they have the authority to, and should, regulate impacts to waters that are left without federal regulatory protection under SWANCC. Already these federal and state agencies have formulated guidance for their staffs on appropriate responses to SWANCC, and at least one federal court has already opined on the scope of SWANCC.

The Constitutional Background
The Regulatory Background
The SWANCC Decision
    Background
    The Holding
    Immediate Regulatory Responses
    Questions After SWANCC
The Resulting Regulatory Landscape
    Role of Army Corps of Engineers
        Navigability in Fact
        Adjacency or Substantial Nexus
        Tributaries
        Other Sources of Jurisdiction
U.S. EPA Role in 404 Permit Process
        Delineations
        Elevations
        Permit Veto Authority
        Enforcement
        EPA Role Under Other provisions of CWA
Conclusion

The Constitutional Background

The fundamental power of Congress to pass environmental legislation is found in the Commerce Clause of the U.S. Constitution. U.S. Const. art. I, § 8. The Commerce Clause provides that that "[t]he Congress shall have power * * * to regulate commerce with foreign nations and among the several States."

Although the connection between commercial regulation and environmental regulation may seem implausible to some, until the mid-1990s few courts seriously questioned whether the Commerce Clause established a valid foundation for the environmental laws. Since the New Deal Era and until quite recently, the Supreme Court has continuously expanded the scope of Congress' powers under the Commerce Clause. For 60 years, it appeared that the Supreme Court determined that any effect on interstate commerce -- no matter how remote or tenuous the causal chain to reach interstate commerce or how insubstantial the commercial impact of the particular conduct -- would be sufficient to empower the federal government to intervene to displace or supplement state and local regulation. Most scholars assumed that the Supreme Court had essentially abandoned any notion that the Commerce Clause imposes any constraint on the ability of Congress to pass legislation, including environmental legislation. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942) (Congress may properly regulate wheat prices for intrastate activities which affect Interstate Commerce); Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964) (discrimination by hotels and motels impedes interstate travel and power of Congress over interstate commerce extends to activities intrastate which affect interstate commerce); Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) (Corps jurisdiction upheld over Utah Lake despite the fact it was an intrastate lake); and Quivira Mining Co. v. EPA, 765 F.2d 126 (10th Cir. 1985) (EPA jurisdiction upheld over intermittent streams that were not navigable in fact and discharge occurred into a navigable water only during periods of intense rain).

Serious questions were raised in 1995, however, with the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 (1995). In that case, a 5-4 majority of the Supreme Court struck down the federal Gun-Free School Zones Act ("GFSZA") on Commerce Clause grounds. Concluding that the commerce power did not permit federalization of the offense of possessing a gun in a school zone, the Court applied a four-factor test that

the activity of possessing a gun in school is not inherently economic or commercial in nature;

the GFSZA contained no express jurisdictional element limiting its reach to conduct with an explicit effect on interstate commerce;

Congress made no specific findings that possessing a gun in a school zone had effects on interstate commerce; and

the proffered connections to commerce (e.g., possession of a gun in a school zone may result in violent crime, which is costly to society, and may disrupt learning, which could result in a "less productive citizenry") were so attenuated that they would "destroy the Framers' system of enumerated federal and reserved state powers," essentially subjecting everything to the Commerce Clause.

Despite the Supreme Court's significant ruling, Lopez did not have much of an impact on Commerce Clause regulation over the next five years. With the exception of United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) (discussed below), the lower federal courts continued to opine that the Commerce Clause was not a real limit on federal power and that Congress can pass legislation governing any matter of national interest.

Then, just last year, the Supreme Court decided two seminal Commerce Clause cases: United States v. Morrison, 529 U.S. 598 (2000) and Jones v. United States, 529 U.S. 848 (2000). In Morrison, a 5-4 majority of the Court struck down provisions of the Violence Against Women Act ("VAWA") on Commerce Clause grounds, using the Lopez 4-factor test. Moreover, the Supreme Court held that the specific congressional findings supporting the VAWA were insufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. Morrison, 529 U.S. 598 at 615-617. The Court rejected Congress' findings because they stretched the "but-for causal chain * * * to every attenuated effect upon interstate commerce," such that all conduct would be covered by the Commerce Clause. Morrison, 529 U.S. 598 at 615-617. Subsequently, in Jones, the Supreme Court read statutes narrowly to avoid problems involving an insufficient commerce connection. Relying on Lopez, the Supreme Court read a federal arson statute to avoid the issue of regulating arson involving an owner-occupied residence.

The Court's decisions in Lopez, Morrison and Jones suggest that the Court will take a hard look at the constitutionality of environmental laws and regulations, some of which may fall short of the tests established by the court in Lopez. In fact, as signaled by the Court in SWANCC, it now appears that the traditional deference offered by the Courts to environmental regulations under Chevron is inapplicable to regulations that raise constitutional questions under Lopez and its progeny.

The Regulatory Background

It is against this constitutional backdrop that SWANCC was decided. Although the Supreme Court did not hold in SWANCC that the Migratory Bird Rule was an unconstitutional exercise of commerce power authority, the majority was clearly concerned that the rule essentially made meaningless any limit on federal power under the Commerce Clause. Indeed, by anyone's standards the scope of Corps jurisdiction over wetlands and other waters has grown by statutory and regulatory accretion over the decades. To understand SWANCC, it is useful to understand this history.

Under the Rivers and Harbors Act of 1899 ("RHA"), the Corps has since the turn of the century required permits for activities involving the obstruction of the navigable capacity of any waters of the United States or the construction of a wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty or other structures or alteration of capacity in any port, roadstead, haven, harbor, canal, navigable river or other water of the United States. 33 U.S.C. § 403. The RHA was a revision of the prior Rivers and Harbors Act of 1890. 26 Stat. 454. Prompted by the Supreme Court decision in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888), the earlier law afforded the Corps its first role in regulating dams, bridges or other obstructions to navigable waters. For many decades the RHA was viewed by the Corps and others primarily as a tool to protect the navigability of the nations' waterways, a legitimate exercise of the commerce power. In the late 1960s, however, the Corps' mission began to shift to accommodate environmental concerns.

Responding to the adoption of the Fish and Wildlife Coordination Act, 16 U.S.C.A. § 662, which directs federal agencies altering a waterbody to consult with the USFWS, the Corps issued regulations in 1967 to protect wetlands under the RHA by undertaking a "public interest" review in which the Corps considered navigational effects, as well as, inter alia ecological effects. In 1967, the Secretaries of the Army and Interior implemented the Fish & Wildlife Coordination Act and the revised interpretation of the Rivers and Harbors Act by entering into a Memorandum of Agreement (July 13, 1967), reprinted in 33 Fed. Reg. 18,672-73 (1968) in which the Secretary of the Army agreed to consider the Secretary of the Interior's views on the merits of proposed activities (the "1967 MOA"). Over the years, the Corps continued to expand its role in regulating waters by relying on the 1967 MOA as a basis for its ecological authority to regulate. In 1970, the Fifth Circuit upheld the Corps' denial of a permit for the fill of 11 acres of submerged land in Florida based on ecological considerations. Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970).

With authorization of the Federal Water Pollution Control Act in 1972 (as subsequently amended, Clean Water Act), the Corps retained an important role - along with EPA - in protecting the nation's navigable waters through the administration of a permit system similar to the system it administered under the RHA.^{[2]However, its role had become expressly environmental in nature.}

Section 404 and other provisions of the CWA direct the Corps to require permits for the discharge of dredged or fill material into the navigable waters, 33 U.S.C. § 1344(a), which is the term traditionally used to describe federal jurisdiction over the waterways (e.g., under the RHA). When it passed the CWA in 1972, Congress defined the term navigable waters using a phrase apparently broader than the term it defined. The CWA defines navigable waters to mean the waters of the United States, including the territorial seas. 33 U.S.C. § 1362(7).

Notwithstanding this broad definition, the Corps' original regulations under Section 404, promulgated in 1975, asserted jurisdiction only over those waterways traditionally regulated by the Corps under the RHA (i.e., only those that were truly navigable). Under pressure from various sources, the Corps subsequently adopted broader regulations that did not limit its jurisdiction to navigable waters. These 1977 regulations covered (a) truly navigable waters; (b) tributaries to navigable waters and wetlands adjacent to navigable waters; and (c) isolated wetlands and other waters with some connection to interstate commerce. The Corps' assertion of jurisdiction over isolated waters generated a considerable degree of controversy and, later in the year, the House of Representatives passed a bill that would have restricted Corps jurisdiction to traditional navigable waters and adjacent wetlands and eliminated Section 404 jurisdiction over non-adjacent isolated wetlands. After lengthy debate, the Senate rejected this legislation.

The scope of Corps' jurisdiction over wetlands and other waters has been subject to almost continuous litigation since the 1970s. The 1977 regulations were not immune from this trend. In 1985, the United States Supreme Court considered whether the Corps could exercise jurisdiction over nonnavigable wetlands that were hydrologically connected to other waters clearly subject to Section 404. United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). In Riverside Bayview, the Supreme Court upheld those provisions of the Corps' regulations that governed such "adjacent" nonnavigable wetlands. In so doing, the Court focused on the CWA's broad definition of the term navigable waters (i.e., to include the "waters of the United States, including the territorial seas"), observing that -- as so defined -- the term navigable must be of "limited import." The Court also found meaningful the Senate's rejecting of the House of Representatives' bill to narrow Corps jurisdiction to truly navigable waters, finding that Congress implicitly acquiesced in the Corps' broad reading of Section 404 as reflected in the 1977 regulations. However, the Supreme Court expressed no opinion on the question of nonnavigable waters that were "isolated" from other waters subject to 404 jurisdiction.

In response to Riverside Bayview, the Corps in 1986 adopted new regulations to clarify the scope of its jurisdiction under Section 404. As noted above, the CWA jurisdiction defines the term "navigable waters" to include the "waters of the United States, including the territorial seas." 33 U.S.C. §§ 404, 502(7). In its 1986 regulations, the Corps defined the "waters of the United States" as including, among other waters, "[a]ll 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." 33 C.F.R. § 328.3(a)(3). When it published its 1986 regulations in the Federal Register, the Corps included the preamble language stating that any such "other waters" would be deemed to affect interstate commerce if they "are or would be used as habitat by . . . migratory birds which cross state lines." 51 Fed. Reg. 41,217 (1986). This principle, which the Corps has subsequently used to assert jurisdiction in very many instances, has became known as the Migratory Bird Rule. This policy has been subject to many lawsuits since its "publication," with conflicting results in the appellate courts until SWANCC.

The SWANCC Decision

Background
SWANCC involved a challenge by the Solid Waste Agency of North Cook ounty ("SWANCC") to the Corps' exercise of jurisdiction over a number of nonnavigable, isolated, intrastate ponds located on property SWANCC was attempting to develop as a solid waste disposal site. The property included an abandoned sand and gravel pit with remnant excavation trenches that had returned over time to largely "natural" conditions through the growth of considerable vegetation and the development of a number of scattered permanent and seasonal ponds - unconnected to any truly navigable water - but used by migratory birds. The Corps asserted jurisdiction over these ponds based upon the Migratory Bird Rule and, accordingly, SWANCC requested a Section 404 permit from the Corps to fill some of them. The Corps denied the permit on several grounds.^[3]

After being denied the permit, SWANCC filed suit in federal court challenging the Corps' exercise of jurisdiction over the ponds on the basis of the Migratory Bird Rule. The trial court ruled in favor of SWANCC, and the decision was appealed to the Seventh Circuit.

At the appellate level, SWANCC argued that the Corps exceeded its statutory authority in interpreting the CWA to cover "nonnavigable, isolated, intrastate waters" based solely upon the presence of migratory birds and that, if Congress did purport to grant such authority under the CWA, it was beyond Congress' power under the Commerce Clause to do so. In evaluating the constitutional claim, the Seventh Circuit applied a principle known as the "cumulative impact doctrine," which stands for the proposition that a single activity that itself has no discernible effect on interstate commerce may still be regulated under the Commerce Clause "if the aggregate effect of that class of activity has a substantial impact on interstate commerce." Solid Waste Agency, Inc. v. U.S. Army Corps of Engineers, 191 F.3d 845 (7th Cir. 1999). Applying this principle, and its belief that the CWA is intended to regulate as far as the Commerce Clause allows, the Court of Appeals reasoned that the Migratory Bird Rule was appropriate due to the aggregate effect on interstate commerce resulting from the destruction of natural habitat for migratory birds and effects on the millions of people who cross state lines and spend billions of dollars to hunt and observe these birds. Id. at 850-852.

The United States Supreme Court granted review of the Seventh Circuit decision and, on January 19 by a narrow 5-4 majority (i.e., the same conservative majority that decided Bush v. Gore, 121 S. Ct. 525 (2000), only a few weeks earlier), reversed the Seventh Circuit, ruling that the Corps' jurisdiction under the CWA does not extend to nonnavigable, isolated, intrastate waters based solely on that fact these waters are used as habitat by migratory birds.

The Holding

The Supreme Court's ruling in SWANCC is ostensibly narrow. In reversing the Seventh Circuit, the Supreme Court refused to address whether the Commerce Clause allows federal jurisdiction over isolated waters based upon migratory bird use. Instead, the Court held that the CWA itself prohibited application of the Migratory Bird Rule because the CWA explicitly applies only to navigable waters, whereas the Migratory Bird Rule was used by the Corps to extend jurisdiction over nonnavigable, intrastate, isolated waters. Although the reasoning behind the Court's ruling suggests strongly that the entire text of 33 C.F.R. § 328.3(a)(3) is illegal (i.e., that provision covers only nonnavigable, intrastate, isolated waters), the Court declined to specifically rule on the legality of the regulation itself, limiting its holding to the Migratory Bird Rule.^[4] The language of the opinion is nonetheless sweeping, casting a constitutional cloud over portions of the Section 404 regulatory program (and other environmental laws), and establishing a platform for further significant litigation over the scope and effect of the CWA.

Although the reasoning behind SWANCC undoubtedly justifies a host of law review-worthy explorations more scholarly than the authors have time to indulge, two themes bear mentioning:

First, as mentioned above, SWANCC was decided principally on a question of statutory construction. The question presented in SWANCC was whether, when it defined the term navigable waters broadly to include the waters of the United States, Congress intended to rob the limiting term navigable of independent meaning. In Riverside Bayview, when the Supreme Court decided that the CWA regulated nonnavigable waters that were "adjacent" to navigable waters or their tributaries, it found that the term navigable was of limited import and that Congress evidenced its intent to "regulate at least some waters that would not be deemed navigable under the classical understanding of that term," including wetlands adjacent to navigable waters. Riverside Bayview, 474 U.S. at 133. Moreover, as discussed above, the Court in Riverside Bayview had concluded that, by failing to amend the CWA in 1977, Congress had "acquiesced" to the Corps' interpretation of Section 404 to cover adjacent wetlands and had expressed an intent to regulate wetlands "inseparably bound up with the 'waters' of the United States."Id. at 134-39. Thus, in deciding SWANCC, the majority was faced with the problem of reading meaning back into a term - navigability -- that whose importance it had previously diminished.

The Court found a way to clear this logical hurdle:

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. [SWANCC, 121 S. Ct. at 683 (citations omitted).]

In other words, the Supreme Court in SWANCC distinguished Riverside Bayview by emphasizing that it was the "significant nexus" between the wetlands at issue in Riverside Bayview and other navigable waters that informed the Court's reading of the CWA in that case. This may be the most important element of SWANCC. In cases where no significant nexus to navigable or waters exists, then Section 404 of the CWA does not apply. Where such a nexus does exist, then the waters in question are appropriately subject to federal regulation. The Court may be charged with indulging some rhetorical gymnastics to make this distinction and read meaning back into the term navigability.Of course, it may be charged with the same type of gymnastics in having removed meaning from the term in the first place in Riverside Bayview. The bottom line is that - notwithstanding its restriction of federal jurisdiction under SWANCC - the Supreme Court arguably adopted a fairly ecological rule: Where a nonnavigable water has some significant nexus to navigable waters, then it is properly subject to jurisdiction; and where it does not have such a nexus, it is not subject to regulation under Section 404. The problem comes in determining where such a nexus exists.

Second, the Court sent a clear signal that it will look closely at the constitutional basis for environmental laws where they press upon the limits of the Commerce Clause. This is particularly true where an administrative interpretation of a federal statute is under scrutiny. While the Court narrowly construed federal statutes in Morrison and Jones to avoid the constitutional problems raised under the Commerce Clause, cases prior to Lopez, Morrison and Jones suggest that only the clearest indication that Congress intended the regulatory construction adopted by the federal agency overcomes the presumption against an administrative interpretation of a statute of questionable constitutionality. See e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988); NLRB v. Catholic Bishop, 440 U.S. 490 (1979).

Moreover, the Court sent a strong message it was not willing to extend deference under Chevron U.S.A. Inc., 467 U.S. 837 (1984) where there was an administrative interpretation of a statute invoking the outer limits of Congress' power, unless there was a clear indication that Congress intended that result. Edward J. DeBartolo Corp., 485 U.S. at 575. Noting that Congress does not "casually authorize administrative agencies to interpret a statute to push the limit of congressional authority," the concern for reaching constitutional issues is heightened where the administrative interpretation alters the federal-state framework by allowing federal regulation to encroach on traditional state power. SWANCC, 121 S. Ct. at 683; see also United States v. Bass, 404 U.S. 336 (1971). Finding that the Migratory Bird Rule would result in a significant impingement of the States' "traditional and primary power over land and water use," the Court concluded that Congress did not desire to readjust the federal-state balance in this manner. [Recall the Court's statement in Lopez that the GFSZA would destroy the Framers' system of enumerated federal and reserved state powers.] The Court read the Clean Water Act to avoid the significant constitutional and federalism questions raised by the Corps' interpretation of its rules and refused to grant the Corps administrative deference under Chevron. Perhaps, one of the most significant effects of Lopez, Morrison, Jones and now SWANCC is the limitation on Chevron deference -- that is, no deference is owed to a regulatory agency's statutory interpretation that is of questionable constitutionality.

Immediate Regulatory Responses

Not surprisingly, state and federal agencies have reacted quickly to the Court's challenges to regulatory authority under SWANCC.

On January 19, 2001, 10 days after the Court issued its decision in SWANCC, the Chief Counsel for the Corps and the General Counsel of the EPA issued a joint memorandum identifying the aspects of the regulatory definition of "waters of the United States" affected by SWANCC ("Joint Memorandum"). The Joint Memorandum states that, although SWANCC discussed federal CWA jurisdiction in broad terms, its holding was limited to invalidating the Corps application of 33 C.F.R. § 328.3(a)(3), as clarified and applied to the ponds at issue pursuant to the Migratory Bird Rule. In other words, the Joint Memorandum takes that position SWANCC did not affect the scope of Section 328.3(a)(3) itself.

In particular, the Joint Memorandum advises field staff to no longer rely on the use of waters or wetlands by migratory birds as the sole basis for the assertion of jurisdiction under the CWA. Because SWANCC is limited to "nonnavigable, isolated, intrastate" waters, field staff are advised under the Joint Memorandum to exercise CWA jurisdiction over waters falling outside this category to the full extent of their authority under the CWA and regulations and consistent with court opinions. Because the Court did not overturn Riverside Bayview, traditionally navigable waters, interstate waters, their tributaries, and wetlands adjacent to each are still considered by the Corps and EPA under the Joint Memorandum to be waters of the United States.

In fact, the Corps and EPA concluded that the following subsections of the regulatory definition of "waters of the United States" ^[5] are unaffected by SWANCC:

(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 which are subject to the ebb and flow of the tide." See 33 C.F.R. § 328.(a)(1).^[6]

(2) All interstate waters including interstate wetlands. See 33 C.F.R. § 328.(a)(2).

(4) All impoundment of waters otherwise defined as waters of the United States under the definition [except subsection (a)(3) waters. See 33 C.F.R. § 328.(a)(4).

(5) Tributaries to waters identified in paragraphs (a)(1) [, (2), and] (4) of this section. See 33 C.F.R. § 328.(a)(5).

(6) The territorial seas. See 33 C.F.R. § 328.(a)(6); see also 33 U.S.C. § 502(7).

(7) Wetlands adjacent to waters (other than waters which are themselves wetlands) identified in paragraphs (a)(1) [, (2), (4), (5), and] (6) of this section. See 33 C.F.R. § 328.(a)(7).^[7]

The Joint Memorandum identifies 33 C.F.R § 328.3(a)(3) as the only subsection of the regulatory definition of "waters of the United States" affected, or potentially affected, by SWANCC. This subsection defines "waters of the United States" as including:

(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. See 33 C.F.R. § 328.3(a)(3).

The Joint Memorandum advises that waters covered by subsection (a)(3) that could affect interstate commerce solely by virtue of their use as habitat by migratory birds are no longer considered "waters of the United States." With respect to other nonnavigable, isolated, intrastate waters, the Joint Memorandum suggests that other types of interstate commerce connections may still be relied upon to assert CWA jurisdiction subject to review on a case-by-case basis. The memorandum suggests further that two factors should be considered to determine whether subsection (a)(3) may support CWA jurisdiction:

(1) With respect to waters that are isolated, intrastate, and nonnavigable -- jurisdiction may be possible if their use, degradation, or destruction could affect other "waters of the United States," thus establishing a significant nexus between the water in question and other "waters of the United States;"

(2) With respect to waters that, although isolated and intrastate, are navigable -- jurisdiction may also be possible if their use, degradation, or destruction could affect interstate or foreign commerce (examples of ways the use, degradation or destruction of a water could affect such commerce are provided at 33 C.F.R. 328.3(a)(3)(i)-(iii)).

Impoundments of (a)(3) waters, tributaries of (a)(3) waters, and wetlands adjacent to (a)(3) waters are to be analyzed in accordance with the above, and are to be considered "waters of the United States" if they impound, are tributary to, are adjacent to, or are themselves "waters of the United States."

To the extent the Joint Memorandum supports the assertion of jurisdiction over intrastate, nonnavigable, isolated waters that have some Commerce Clause connection other than migratory bird use, it is unsupported by any reasonable reading of SWANCC. Although the Supreme Court did not strike down 33 C.F.R. 328.3(a)(iii) itself, it is clear from the opinion that nonnavigable waters are not subject to regulation unless they fall within the protections offered by Riverside Bayview. The authors believe that, where regulatory staff attempt to assert jurisdiction over truly isolated waters based upon commerce clause connections other than migratory bird use, they will be subject to legal challenge. Nonetheless, it is likely that the legitimate regulatory void created by SWANCC will be filled with arguments as to whether wetlands and other waters that may appear to be isolated may in fact have some significant nexus justifying the assertion of jurisdiction under Riverside Bayview or other provisions of the Corps' regulations.

Questions After SWANCC

Although SWANCC clearly imposes very real restrictions on federal regulation of a limited number of wetlands and other waters, it also creates a number of difficult questions. By way of example only:

Role of Commerce Clause. The Supreme Court declined to reach the constitutional question underlying SWANCC. Thus, a question remains as to scope of federal power under the CWA. Under Lopez and the other non-environmental Commerce Clause cases described above, it is possible that some "tributary" or "adjacent" waters may still be beyond federal power notwithstanding the Supreme Court's apparent sanction of jurisdiction over those waters in Riverside Bayview.

Legality of 33 C.F.R. 328.3(a)(iii).The legal problem at issue in SWANCC was the legality of the Migratory Bird Rule. Although the Supreme Court did not do so expressly, the language of its opinion called into question the legality of this regulation in its entirely, which purports to regulate nonnavigable waters based upon Commerce Clause connections in general. Given that the Supreme Court rejected CWA jurisdiction over all nonnavigable waters (other than those falling within the scope of Riverside Bayview), and notwithstanding the provisions of the Joint Memorandum, it is likely that this regulation would not withstand judicial scrutiny following SWANCC.

Definition of Navigability. The Supreme Court's broad attack on jurisdiction over nonnavigable waters undoubtedly will have the agencies looking for ways to broaden the definition of navigability. For example, the Corps' regulations allow jurisdiction over waters that, although not navigable themselves, are tributaries of navigable waters. Cases arising under the RHA and the CWA define tributary jurisdiction fairly broadly, and one can expect that EPA and the Corps will increasingly rely upon this jurisdiction to assert CWA authority. In fact, just this month the Ninth Circuit handed down an opinion defining tributary authority quite broadly and asserting that such jurisdiction remains unaffected by SWANCC. Headwaters, Inc. v. Talent Irrigation Dist., No. 99-35373, 2001 U.S. App. LEXIS 3718 (9th Cir. March 12, 2001).

Meaning of "Adjacency" and "Substantial Nexus." Where the Corps and EPA cannot establish jurisdiction through traditional tests of navigability or tributary jurisdiction, one can expect them seeking to assert jurisdiction by showing that isolated waters have a "substantial nexus" to otherwise regulable waters. In Riverside Bayview, the Supreme Court determined that wetlands adjacent to traditional navigable waters possess a substantial nexus to navigable waters so as to render them "waters of the United States." The term "adjacent" is defined quite broadly in the regulations to include wetlands that are "bordering, contiguous or neighboring" and, to date, has been largely untested as to its meaning or compliance with constitutional or statutory standards. 40 C.F.R. § 230.3(b). And there is likely to be argument over the question as to whether the term "adjacency" is broader or narrower than the "substantial nexus" test discussed in SWANCC. In fact, the authors have already encountered efforts by the Corps and EPA to incorporate into traditional delineation processes efforts to identify hydrologic and other factors to establish jurisdictional "links" between navigable waters and the areas being delineated.

Roles of Other Agencies. Various federal and state agencies have already stepped in to fill the regulatory void, albeit limited, left by SWANCC. As described above, counsel for the Corps and EPA have issued an opinion purporting to downplay the importance of SWANCC. As described more fully below, counsel for the California State Water Resources Control Board has issued a memorandum outlining a broader reading of SWANCC and asserting state jurisdiction over isolated waters under California's water quality laws. The USFWS has, in several instances observed by the authors, informally advanced its authority to prosecute violations of the "take" provisions of Section 9 of the Federal Endangered Species Act as a disincentive to the filling of isolated waters.

Most of these questions will not be resolved until time has passed and the inevitable litigation, rulemakings and legislative efforts have been pursued. In the meantime, there will be considerable question as to the scope of the Section 404 and the authority of the various state and federal agencies to implement its provisions.

The Resulting Regulatory Landscape

Role of Army Corps of Engineers
The Corps is solely responsible for making final permit decisions pursuant to CWA Section 404 and RHA Section 10 of the RHA. More significantly in light of SWANCC, the Corps is vested with authority to delineate the scope of federal jurisdiction under the CWA. Although EPA has gained a significant role in this process (described in Subsection B below), and can use this role to influence Corps decisions in significant cases, in the vast majority of instances the Corps will have the final say in jurisdictional decisions.

As noted above, with the Supreme Court's removal of commerce jurisdictional tests (including the Migratory Bird Rule) as the federal trump card for federal jurisdiction under CWA, it is likely that the Corps -- with considerable pressure from EPA - will resort to traditional, more fact-based tests for determining the scope of its jurisdiction. In fact, cases decided long before the Corps' 1986 regulations, long considered irrelevant given the Corps' sweeping assertion of jurisdiction since that time, will once again become relevant. One can expect the following types of issues to become relevant during the delineation process.

Navigability in Fact
SWANCC once again elevates the importance of navigability determinations in determining the scope of Section 404 jurisdiction. Prior to the Federal Water Pollution Control Act amendments of 1972 and the subsequent enactment of the Clean Water Act in 1977, "navigable waters" were regulated primarily under sections 10 and 13 of the RHA. The Supreme Court's reference in SWANCC to "traditional navigable waters" as the outer bounds of Section 404 jurisdiction refers in large part to those waters considered "navigable in fact" as defined by case law construing the jurisdictional reach of the RHA.

The definition of "navigable waters" evolved over a century or more of Supreme Court jurisprudence. In the 1870s, "navigable waters" included waters over which the federal government was authorized to assert commerce powers, described as "waters that . . . 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. The Daniel Ball, 77 U.S. 557 (1870). This navigability test was expanded in 1874 to include waters that were used not just for actual commercial purposes, but also those that merely had the capability for commercial use. The Montello, 87 U.S. 430 (1874). In 1921, the definition was expanded again to include waters that were capable of commercial use in the past but that were no longer capable of use for commerce due to physical and economic changes. Economy Light & Power Co. v. United States, 256 U.S. 113 (1921). In 1940, the definition was further expanded to include waters that could be made navigable through reasonable improvements. United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940).

Books can be (and have been) written on tests to determine the navigability of waters under state and federal laws for various purposes, whether related to land title, water rights, or the effects of various laws and regulations. Suffice it to say that today, for the purposes of Section 404, the Corps' regulations define "navigable waters" generally to include "[a]ll 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 which are subject to the ebb and flow of the tide." 33 C.F.R. § 328.(a)(1). This includes all waters which presently, in the past, or, with reasonable improvements, in the future could be used for interstate or foreign commerce by water, with the mean high water mark serving as the shoreward boundary and the actual limits of navigability serving as the upstream boundary. Although SWANCC itself does not affect the Corps' definition of navigable waters, the issue may become important in many cases as applicants seek to determine whether particular wetlands or other waters have the requisite jurisdictional nexus to such waters.

Adjacency or Substantial Nexus
As defined in the Corps' 1986 regulations, "waters of the United States" are defined to include wetlands adjacent to waters (other than waters that are themselves wetlands) that fall within more traditional tests of federal jurisdiction as identified in 33 C.F.R. 328.3(a)(1) through (6). 33 C.F.R. § 328.3(a)(7). As used in the Corps regulations, "adjacent" is defined broadly to include "bordering, contiguous, or neighboring." Wetlands separated from other waters of the U.S. by man-made dikes or barriers, natural river berms, beach dunes and the like are considered adjacent wetlands. 33 C.F.R. § 328.3(c). It is interesting to note that, under the 1986 regulations, nonnavigable waters are considered "adjacent" and subject to regulations only if they fall within the Corps' definition of "wetlands."

A number of pre-SWANCC federal appellate decisions, including one issued by the Ninth Circuit, have addressed the nature of the "adjacency" required to establish jurisdiction under Section 404. Under these decisions, a wetland is "adjacent" if its abuts a navigable waterway or a tributary to a navigable waterway. Riverside Bayview, 474 U.S. at 135. Courts also have held that a surface or groundwater "hydrological connection" or "ecological adjacency" must exist between the land and drainage for purposes of establishing Corps jurisdiction. United States v. Banks, 115 F.3d 916 (11th Cir. 1997) (Eleventh Circuit held wetlands were "adjacent" based upon a groundwater and surface water hydrological connection between the wetlands and two channels, as well as "ecological adjacency" based on the water connections and the fact that the lots served as habitat for birds, fish, turtles, snakes and other wildlife).

Several courts also have held that wetlands adjacent to non-navigable tributaries of navigable waters are subject to Clean Water Act jurisdiction. In United States v. Pozsgai, 999 F.2d 719 (3rd Cir. 1993), the Third Circuit held that the Corps had jurisdiction over wetlands adjacent to a non-navigable tributary of a canal used for navigation in the past and which was a tributary of another non-navigable water. Similarly, the Fifth Circuit held in Slagle v. United States, 809 F.Supp. 704 (U.S. Dist. Minn. 1992) that the Corps had jurisdiction over wetlands adjacent to a non-navigable lake that was a tributary of a navigable water.

Prior to SWANCC, at least one Circuit Court was reluctant to extend Clean Water Act coverage to waters that are neither connected closely to interstate commerce nor navigable waters. In United States of America v. Wilson, 133 F.3d 251 (4th Cir. 1997), the Fourth Circuit held that the Corps did not have jurisdiction over wetlands that lacked direct or indirect surface connection to interstate waters, navigable waters or interstate commerce. In that case, the Corps' regulations attempted to extend jurisdiction over intrastate, nonnavigable waters solely on the basis that the use, degradation or destruction of such waters could affect interstate commerce. The Fourth Circuit concluded that the regulation presented "serious constitutional difficulties * * * under the Commerce Clause" because it neither required that the regulated activity have a substantial affect on interstate commerce, nor that the covered waters have any sort of nexus with navigable or even interstate waters. Wilson 133 F. 3d at 257. The Fourth Circuit also concluded that the Corps improperly asserted jurisdiction over isolated wetlands that were located up to 10 miles from a navigable water or tributary because these wetlands did not have a "direct or indirect surface connection" with interstate waters. The Corps has interpreted this to mean that it will assert jurisdiction where it can establish an actual link between the water body and interstate or foreign commerce; and where individually or combined, the use, degradation or destruction of isolated waters with such a link would have a substantial effect on interstate or foreign commerce. Guidance for Corps and EPA Field Offices Regarding Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of United States v. James J. Wilson (Guidance withdrawn after January 19, 2001 SWANCC decision.) Read in the context of SWANCC, the Wilson decision suggests that the "significant nexus" test could be limited by the requirement that a direct or indirect hydrologic connection exist between wetlands and navigable waters.

Although decisions requiring a hydrological connection as a prerequisite to federal jurisdiction generally remain valid under SWANCC, those decisions that attempt to broaden the scope of adjacency based solely upon the Migratory Bird Rule are likely invalid. For example, in Leslie Salt Co. v. United States, 55 F.3d 1388 (1995) ("Leslie Salt III")^[8] the Ninth Circuit concluded that the Corps' rationale for regulating wetlands adjacent to navigable waters (i.e., under Riverside Bayview) was applicable to isolated waters that were not adjacent even though the seasonally ponded areas in question had no hydrologic connection to any other body of water and, in fact, did not exist for much of the year. Such rationales are unlikely to survive in a post-SWANCC world.

Tributaries
SWANCC did not address the extent to which tributaries of navigable waters would continue to be subject to Section 404 regulation. As described in the Corps' regulations, "waters of the United States" include tributaries of waters that are used for interstate or foreign commerce. Although the regulations do not indicate whether a tributary itself must be navigable, the Federal Register preamble implies that tributaries include non-navigable tributaries of navigable waters. See 42 Fed. Reg. 37,127 (1977).

Courts generally have interpreted the regulation of tributaries to include both navigable and non-navigable waters. See United States v. Ashland Oil & Transp. Co., 504 F.2d 1317 (6th Cir. 1974) (Regulation over a non-navigable tributary was within the commerce clause power); United States v. Pozsgai, 999 F.2d 719 (3rd Cir. 1993) (Interstate commerce based on wetlands adjacent to a tributary of a waterway formerly used in interstate commerce); United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979) (Clean Water Act jurisdiction covered an unnamed intermittent stream that was a tributary to a tributary of a navigable water (the Red River)); United States v. Zanger, 767 F. Supp. 1030 (N.D. Cal. 1997) (Discharge of fill into a creek was covered by Section 404 because it was a water of the U.S. in its own right and because it was a tributary of other waters of the U.S. and thus covered by Section 328.3(a)(5)).

Courts, however, have split on whether Clean Water Act jurisdiction covers canals, as tributaries, that are unconnected to navigable waters. In United States v. Sexton Cove Estates, 526 F.2d 1293 (5th Cir. 1976), the Fifth Circuit held that the Corps did not have jurisdiction over landlocked canals that did not affect the course, condition, capacity or location of a navigable water. Acknowledging the Fifth Circuit's decision in Sexton Cove, a South Carolina District Court noted that a canal must be connected to a navigable water, or itself serve as a navigable water for purposes of Section 10 jurisdiction. United States v. Hanna, No. 80‑0949‑2, 1983 U.S. Dist. LEXIS 17314 (U.S. Dist. S. C. April 29, 1983). After finding a connection between a canal and a navigable water, the court then concluded that all of the lands between the canal and the navigable water constituted wetlands and therefore, waters of the U.S. for purposes of Section 404 jurisdiction. To reach its conclusion, the court found evidence that the lands had standing water, wetland vegetation and hydric soils.

In a post-SWANCC Ninth Circuit decision issued on March 12, 2001, the Court confirmed that irrigation canals are subject to regulation as tributaries under the Clean Water Act. Headwaters v. Talent Irrigation Dist., No. 99-35373, 2001 U.S. App. LEXIS 3718 (9th Cir. March 12, 2001). The Court expressly stated that its opinion was unaffected by the Supreme Court's decision in SWANCC since the irrigation canals were not "isolated waters;" the canals received water from natural streams and lakes, and divert water to streams and creeks, and they are connected as tributaries to other waters of the United States. The Court also rejected the irrigation district's argument that the canals are not tributaries because during the application of pesticides (the discharge at issue), closing the gates to the canal isolated the canal from natural streams.

In light of SWANCC and the Ninth Circuit Headwaters decision, we can expect the Corps to continue to assert jurisdiction over tributaries, including irrigation canals and drainage ditches. We also can expect the Corps to attempt to establish hydrological connections and raise adjacency arguments to assert jurisdiction over wetlands that may be adjacent to tributaries, but not to actual navigable waters.

Other Sources of Jurisdiction
Based upon the Joint Memorandum, we also can expect the Corps to continue to assert jurisdiction over impoundments. Impoundments of other waters that meet the definition of 328.3(a)(3) will be analyzed on a case-by-case basis. Additionally, all interstate waters and waters currently or previously used for interstate commerce also remain subject to jurisdiction. Finally, the Corps will continue to maintain jurisdiction over territorial seas. Joint Memorandum at 4.

U.S. EPA Role in 404 Permit Process

Delineations
In the years following passage of the CWA, confusion reigned as to whether the Corps or EPA had ultimate authority to make wetlands determinations. Due to the lack of clear statutory guidance, the determination as to the agency responsible for delineations was resolved as part of the highly controversial wetlands case, Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983). A U.S. Attorney General opinion had determined that EPA had ultimate authority for wetlands jurisdictional determinations. 43 Op. Att'y Gen. 15 (1979). Later confirmed by the court in Avoyelles,^[9] the Attorney General opinion governed until the agencies entered into a Memorandum of Understanding ("MOU") specifying the agency's respective roles in geographical determinations.^[10]

The EPA and Corps subsequently revised the MOU to clarify that as the agency responsible for administering the Section 404 regulatory program, the Corps has exclusive authority to delineate jurisdictional waters under applicable Section 404 regulations and an MOA with the EPA.^[11] In making their Section 404 determinations, the Corps and EPA adhere to the January 1987 Corps of Engineers Wetlands Delineation Manual and EPA guidance on isolated waters.^[12] In light of the Court's decision in SWANCC, EPA has withdrawn some of its prior guidance memoranda regarding isolated waters^[13] and issued a joint guidance memorandum with the Corps that will govern the determination of jurisdiction over isolated wetlands, as described above. In "special cases," the EPA will make the final determination of the geographic jurisdictional scope of Waters of the U.S. for purposes of Section 404. "Special cases" may arise in generic or project-specific situations where significant issues or technical difficulties are anticipated or exist concerning the geographical jurisdictional scope of Section 404 coverage and where clarifying guidance is likely to be needed.^[14]

Elevations
Although the Corps is responsible for administering the Section 404 permit program^[15], the EPA plays a significant role through its authority to elevate a permit decision. RGL No. 86-5. Pursuant to Section 404(1), the EPA may request elevation of specific individual permits where the net loss after considering mitigation from the project (i.e., that is within the scope of impacts evaluated by the Corps) will result in unacceptable adverse effects to aquatic resources of national importance ("ARNI").^[16] 40 C.F.R. § 231.3. While the Joint Memorandum governs both agencies, the EPA independently could request elevation of individual Corps permit decisions in those instances where the EPA disagrees with the Corps' determinations on adjacency or navigability as applied on a case-by-case. Through the elevation process, EPA could have another shot at asserting jurisdiction if it disagrees with the Corps determinations related to isolated wetlands.

Permit Veto Authority
Similar to its authority to elevate an individual permit decision, the EPA may veto a permit issued by the Corps pursuant to Section 404(c). Section 404(c) allows the EPA to determine that a location should not be used for filling because it will "have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas." 33 U.S.C. § 1344(c). In James City County v. U.S. Environmental Protection Agency, 12 F.3d 1330 (4th Cir. 1993), the Fourth Circuit upheld EPA's right to exercise its veto authority on environmental grounds alone.

While it is true that EPA's veto authority will no longer be a threat to the fill of isolated wetlands (i.e., because the Corps will not be issuing Section 404 permits), it is possible that the EPA could threaten to veto Section 404 permits issued for the fill of adjacent wetlands, if the Corps has (in EPA's view) illegally "segmented" the permit to eliminate navigable/adjacent waters. Although unlikely, the EPA could attempt to veto Section 404 permits issued for the fill of non-isolated wetlands (or adjacent wetlands), if EPA made some tenuous determination that the activity in an adjacent water of the U.S. would result in an unacceptable adverse effect on another isolated wetland affording wildlife habitat (e.g., filling a drainage could adversely affect water quality impacting a nearby, but non-adjacent vernal pool supporting fairy shrimp). The extent to which the EPA will exercise its veto authority to broaden federal jurisdiction over isolated wetlands remains to be seen.

Enforcement
Under Sections 309, 404(h)(1)(G), and 404(s), EPA, approved States (not applicable to California) and the Corps all play a role in enforcing the Section 404 permit requirements.^[17] 45 Fed. Reg. 85,336 (1980). Citizens also have a right to enforcement under the Clean Water Act. 33 U.S.C. § 1365. Enforcement actions occur when an individual discharges dredged or fill material without a required permit, or violates the terms and conditions of a permit. Generally, EPA is authorized to bring enforcement actions for the unpermitted discharge of dredged or fill material and the Corps brings enforcement actions for the violation of any condition or limitation in a 404 Permit. 33 U.S.C. §§ 1319(b), 1344(s).

Based upon its authority under the CWA, EPA may attempt to prosecute fills of isolated wetlands that the Corps determined were outside of its jurisdiction based on SWANCC (and for which the applicant sought no permit). The likelihood of EPA asserting enforcement authority is somewhat minimized by the division of responsibilities between the Corps and EPA under the MOA. Under the MOA, the Corps generally will act as the lead enforcement agency for unpermitted discharge violations, unless it involves a repeat violator, a flagrant violation, a request by the EPA to cover a class of cases or the Corps recommends that an EPA administrative penalty action is warranted. While in many cases the Corps will take the lead, EPA could assert special enforcement authority in a geographic determination, if EPA is the agency investigating the particular case. In light of EPA's enforcement authority, consultation with the Corps may be advisable in those cases where it is unclear whether a given fill is subject to Section 404 jurisdiction.

EPA Role Under Other provisions of CWA
EPA's other programs may be subject to further scrutiny in light of SWANCC. The same definitions of "navigable waters" and "waters of the U.S." apply under the NPDES program. The Clean Water Act requires that all point sources that discharge pollutants into Waters of the U.S. must obtain an NPDES Permit. 33 U.S.C. § 1311. Given the Supreme Court's views on navigable waters and Waters of the U.S., we may see regulatory changes in the scope of EPA's authority under the NPDES/point source programs.

Conclusion

In light of the Supreme Court's decision in SWANCC, greater regulation of isolated wetlands can be expected at the state and local levels. Additionally, we can anticipate that the resource agencies (e.g., U.S. Fish and Wildlife Service and California Department of Fish & Game) will attempt to exert jurisdiction over isolated waters based on wildlife and ecological concerns in order to fill the regulatory gap. While these agencies use their authorities to regulate isolated wetlands, we can also expect to witness future litigation involving the substantial nexus standard, the need for hydrological connections, as the Corps attempts to modify its regulations to broaden its authority beyond traditional definitions of navigability and adjacency.