On December 16, 2003, the same day the Environmental Protection Agency and the Army Corps of Engineers announced that they would not issue a new rule clarifying federal jurisdiction on what waters are subject to wetland regulation, the U.S. Court of Appeals for the 5th Circuit, in a decision that contradicts other federal appellate courts, narrowed the scope of wetland jurisdiction to exclude waters “that are neither themselves navigable nor truly adjacent to navigable waters.”

The Supreme Court’s 2001 decision in the case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (commonly known as SWANCC) overturned the Corps’ earlier assertion of federal jurisdiction over certain isolated wetlands based on the presence of migratory birds. The Supreme Court found the inclusion within “waters of the United States” of certain isolated non-navigable waters exceeded the Corps regulatory power under the Clean Water Act.

EPA and the Corps responded to SWANCC by issuing ‘revised guidance’ to their field offices defining navigable waters as “all waters, excluding groundwater, that have any hydrological connection with navigable waters.” Early in 2003, at least two federal courts upheld that ‘guidance’ including in United States v. Deaton, where the U.S. Court of Appeals for the 4th Circuit (the circuit that includes Maryland) asserted authority under the Clean Water Act, over wetlands that are “adjacent to, and drain into, a roadside ditch whose waters eventually flow into the navigable Wicomico River and Chesapeake Bay.”

On December 16, 2003, the U.S. Court of Appeals for the 5th Circuit, in United States v. Needham, in direct contradiction to the 4th Circuit’s Deaton decision, rejected the expanded ‘guidance’ as “unsustainable under SWANCC.” The 5th Circuit ruled that “the Clean Water Act … [is] not so broad as to permit the federal government to impose regulations over ‘tributaries’ that are neither themselves navigable nor truly adjacent to navigable waters. Consequently, in this circuit the United States may not simply impose regulations over puddles, sewers, roadside ditches and the like.”

After soliciting public comment, for 11 months, to determine if regulatory clarification was needed “on issues associated with the scope of waters that are subject to the Clean Water Act in light of … SWANCC,” on December 16, 2003 (the same day as the Needham decision), the EPA and Corps announced that they would not issue any new rules clarifying federal wetland regulatory jurisdiction. Many property owners are disappointed that rumors the Bush Administration was going to propose regulations that adopted a much narrower delineation of wetland jurisdiction, did not come to fruition. The federal government had in January 2003, given advanced notice of proposed rule making for regulations that would have provided a single nationwide regulation clarifying what waters are subject to wetland regulation.

Without further regulatory guidance, all that is now clear is that if the Needham “puddles, sewers, roadside ditches and the like” are in Louisiana they are not navigable waters subject to federal wetland jurisdiction, but if they are located in Maryland they are navigable waters subject to regulation. Without action from the Corps or EPA, the Supreme Court is now the only likely arbitrator over the uncertainty of what are waters of the United States.