Freshwater Wetlands - Hydro-Environmental Analysis: Freshwater Environments - page 522

implementing Section 404 of the CWA, the irst approach was to limit the Corps regulatory activi-
ties to those navigable waters.
However, under CWA Section 502, navigable waters are broadly deined as “the waters of the
United States, including territorial seas.” So, the question then becomes, what are “waters of the
United States,” and does that include wetlands, and if so which ones? That has become the subject
of considerable administrative law.
The Corps original regulations, which narrowly restricted the implementation of Section 404 to
navigable waterways, were invalidated by the federal court in Natural Resources Defense Council
v. Callaway (Gardner 2011). As a result, the Corps Regulatory program revised its regulations in
the Code of Federal Regulations (CFR)—Title 33: Navigation and Navigable Waters, Chapter II:
Corps of Engineers, Part 328: Deinition of Waters of The United States. A few of the deinitions of
“waters of the United States” in this section include the traditional deinition:

• 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
low of the tide (3(a)(1))

and additional deinitions including:

• All interstate waters including interstate wetlands (3(a)(2))

• All other waters such as intrastate lakes, rivers, streams (including intermittent streams),

mudlats, sand lats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or nat-
ural ponds, the use, degradation or destruction of which could affect interstate or foreign
commerce including any such waters (3(a)(3))

• All impoundments of waters otherwise deined as waters of the United States under the

deinition (3(a)(4))

• Tributaries of waters identiied in paragraphs (a) (1) through (4) of this section (3(a)(5))

• The territorial seas (3(a)(6))

• Wetlands adjacent to waters (other than waters that are themselves wetlands) identiied in

paragraphs (a) (1) through (6) of this section (3(a)(7))

The regulation went on to deine wetlands as “those areas that are inundated or saturated by
surface or ground water at a frequency and duration suficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”
Based on this revised regulation, the Corps also issued guidance documents such as the Wetland
Delineation manual (TR Y-87-1, USACE 1987) as well as a series of regional supplements. One
change of course in the revised regulations was that they now protected wetlands directly or indi-
rectly connected to navigable waters as well as isolated wetlands as long as they “are currently used,
or were used in the past, or may be susceptible to use in interstate or foreign commerce.” Of course,
that introduces the further question of how isolated wetlands may be connected to (have nexus with)
interstate commerce.

19.5.1.3 “The Waters of the United States Saga” Part 2: The Saga Continues
Of course, the aforementioned regulation did not make some people happy, as described by Gardner
(2011). One result was a series of lawsuits that challenged and changed the interpretation of what the
intent of Congress was in deining “waters of the United States.”

19.5.1.3.1 United States v. Riverside Bayview Homes
In this case, a housing developer, Riverside Bayview Homes, began developing a property in
Macomb County, Michigan, near Lake St. Clair, a traditional navigable waterway. The developer