First Circuit Finds CWA Jurisdiction over Cranberry Farm

Jonathan Lew, 2L, Roger Williams School of Law
Stephanie Showalter

The First Circuit Court of Appeals recently upheld a district court ruling that U.S. Army Corps of Engineers’ (Corps) jurisdiction under the Clean Water Act (CWA) extends to cranberry bogs with a surface water connection to navigable waters.

Background
Between 1979 and 1999, Charles Johnson used earth-moving equipment to construct, expand, and maintain his cranberry bogs. In 1999, the EPA found that Johnson had destroyed fifty acres of wetlands over the years and violated the CWA by not securing a § 404 dredge and fill permit from the Corps for his activities. On February 16, 2005, a U.S. district judge fined Johnson $75,000 and ordered him to restore twenty-five acres of wetlands at an estimated cost of $1.1 million.1

The Clean Water Act prohibits the discharge of dredged and fill material into the waters of the U.S. without a § 404 permit from the Corps. Johnson consistently argued that he was not required to secure CWA permits because he did not discharge material into the “waters of the U.S.” EPA and Corps regulations define “waters of the U.S.” to include, among others, navigable waters, tributaries of navigable waters, and wetlands adjacent to navigable waters.2

Johnson’s cranberry bogs are located on parcels of land the EPA claims are hydrologically connected to navigable waters. For example, the EPA’s expert described the connection for one of the sites, Bog A, as follows:

The 1977 map shows a stream connecting the area of Bog A to the Log Swamp Reservoir. The 1977 USGS map shows that from the Log Swamp Reservoir, water flows south through another bog system, into a stream that travels through a wetland and into a pond. Water from this pond drains into another bog system, and becomes Rocky Meadow Brook.3

Rocky Meadow Brook, in turn, flows into the navigable Weweantic River. Johnson’s other cranberry bogs have similar surface water connections to the Weweantic River. The district court found that these hydrological connections were sufficient to support the exercise of CWA jurisdiction. Johnson appealed.

Jurisdiction
The First Circuit was faced with the question of whether the CWA “extends jurisdiction to distant, non-navigable tributaries of navigable-in-fact waters, and wetlands adjacent to those tributaries.”4 The regulation at issue, 40 C.F.R. § 230.3(s), defines “waters of the United States” to include tributaries of navigable waters5 and “wetlands adjacent to waters (other than waters that are themselves wetlands) identified [in other subsections].”6 Johnson argued that the EPA was wrong to interpret this regulation as reaching “any nonnavigable water with any hydrologic connection to a navigable[-in-fact] water, no matter how distant or infrequent the connection and regardless of the number of intervening, nonnavigable waters.”7

The parties did not dispute that the Weweantic River is a navigable water covered by § 230.3(s)(1). The EPA asserted jurisdiction over Johnson’s property under § 230.3(s)(7) because it contains wetlands adjacent to tributaries of the Weweantic River covered by § 230.3(s)(5). EPA and the Corps interpret “tributaries” to mean “tributary system” or “all of the streams whose water eventually flows into navigable waters.”8

The First Circuit concluded that the agencies’ interpretation of tributaries to include any body of water hydrologically connected to a navigable water was reasonable. The First Circuit explicitly stated that this interpretation complied with Supreme Court precedent in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC).9 In SWANCC, the Supreme Court stated that there must be a “significant nexus” between regulated wetlands and the navigable water. The First Circuit found that the exercise of jurisdiction in the present case was appropriate because “there is a ‘significant nexus’ between a navigable-in-fact water and the tributary system that drains into it.”10 “Given this connection and Congress’ broad delegation of authority under the CWA, the government has reasonably and permissibly interpreted the CWA to extend jurisdiction over the entire tributary system – and wetlands adjacent to that tributary system – of a navigable-in-fact water.”11

Conclusion
In light of the undisputed evidence that the Johnsons’ land is hydrologically connected to the Weweantic River, the First Circuit concluded that the EPA reasonably interpreted the CWA to extend jurisdiction over Johnson’s land.

Endnotes
1. Robert Knox, Ruling Backs EPA in Clash over Wetlands, The Boston Globe (Feb. 27, 2005).
2. 40 C.F.R. § 230.3.
3. U.S. v. Johnson, 437 F.3d 157, 163 (1st Cir. 2006).
4. Id at 177.
5. 40 C.F.R. § 230.3(s)(5).
6. Id. § 230.3(s)(7).
7. Johnson, 437 F.3d at 178.
8. Id. at 179, citing U.S. v. Deaton, 332 F.3d 698, 710-11 (4th Cir. 2003).
9. 531 U.S. 159 (2001).
10. Johnson, 437 F.3d at 180.
11.Id. at 181.