CWA SECTION 301a:

1
CWA SECTION 301(a) Except as in compliance
various permitting provisions of the Act
including Sections 402 and 404 of the Act of
this title, the discharge of any pollutant by any
person shall be unlawful.
2
Wetlands Regulation CWA Sec. 404. Permits for
dredged or fill material (a) Discharge into
navigable waters at specified disposal sites
The Secretary may issue permits, after notice
and opportunity for public hearings for the
discharge of dredged or fill material into the
navigable waters at specified disposal sites... .

3
Wetlands Regulation CWA Sec. 404. Permits for
dredged or fill material (e) (1)  the
Secretary may, after notice and opportunity for
public hearing, issue general permits on a State,
regional, or nationwide basis for any category of
activities involving discharges of dredged or
fill material . . . No general permit issued
under this subsection shall be for a period of
more than five years
4
Wetlands Regulation CWA 404 (f) Non-prohibited
discharge (A) from normal farming,
silviculture, and ranching activities . . . (B)
for the purpose of maintenance . . . of currently
serviceable structures (C) for the purpose
of construction or maintenance of farm or stock
ponds or irrigation ditches (D) for the
purpose of construction of temporary
sedimentation basins on a construction site . .
. (E) for the purpose of construction or
maintenance of farm roads or forest roads . . .
5
Discharge Definition
CWA Section 502  (12) The term ''discharge of a
pollutant'' and the term ''discharge of
pollutants'' each means (A) any addition of any
pollutant to navigable waters from any point
source, (B) any addition of any pollutant to the
waters of the contiguous zone or the ocean from
any point source other than a vessel or other
floating craft.
6
Wetlands Regulation CWA Sec. 404. Permits for
dredged or fill material (a) Discharge into
navigable waters at specified disposal sites
The Secretary may issue permits, after notice
and opportunity for public hearings for the
discharge of dredged or fill material into the
navigable waters at specified disposal sites... .

7
Commerce Clause and the Evolving Definition of
navigable waters (prior to CWA)
Congress may only exercise enumerated powers in
Article II of the Constitution, one of which is
the power to regulate interstate commerce.

• Navigable waters are
• 1. Actually navigable now (pre-1947)
• No. 1 OR historically navigable (1940s and 50s)
• Nos. 1 or 2 OR waters that could be made
  navigable with improvements (since early 60s)

8

• Wetlands Regulation
• US v. Riverside Bayview Homes (USSC 1985)
• adjacent wetlands

9

• Wetlands Regulation
• US v. Riverside Bayview Homes (USSC 1985)
• adjacent wetlands
• Hoffman Homes v. EPA (7th Cir. 1993)
• isolated, natural wetland
• Leslie Salt Co. v. U.S. (9th Cir. 1990)
• isolated, artificial wetland

10

• Wetlands Regulation
• US v. Riverside Bayview Homes (USSC 1985)
• adjacent wetlands
• Hoffman Homes v. EPA (7th Cir. 1993)
• isolated, natural wetland
• Leslie Salt Co. v. U.S. (9th Cir. 1990)
• isolated, artificial wetland
• U.S. v. Wilson (4th Cir. 1997)
• What kind of wetlands are at issue here?
• What then is the jurisdictional issue?

11
Corps' regulations define jurisdictional waters
how?
As interstate waters and intrastate waters, "the
use, degradation or destruction of which could
affect interstate or foreign commerce." 33 CFR
328.3(a)(3). Whats wrong with that?
Does the court say that Congress cannot
constitutionally regulate intrastate waters or
that they did not?
12

• Wetlands Regulation
• US v. Riverside Bayview Homes (USSC 1985)
• adjacent wetlands
• Hoffman Homes v. EPA (7th Cir. 1993)
• isolated, natural wetland
• Leslie Salt Co. v. U.S. (9th Cir. 1990)
• isolated, artificial wetland
• U.S. v. Wilson (4th Cir. 1997)
• SWANCC v. U.S. Army Corps of Engineers (USSC 2001)

13

• Does it violate the Clean Water Act to
• Add pollutants to a wetland that is
  hydrologically connected but physically distant
  from open waters?
• Drain a jurisdictional wetland?
• Move dirt around in a jurisdictional wetland?
• Take dirt out of a jurisdictional wetland, and
  then put it back?
• Pollute groundwater that is hydrologically
  connected to jurisdictional wetlands or other
  jurisdictional waters?

14
(No Transcript)