Treacy v. Newdunn Associates , 344 F.3d 407 ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DENNIS H. TREACY, Director, 
Department of Environmental Quality;
STATE WATER CONTROL BOARD,
Plaintiffs-Appellants,
and
UNITED STATES OF AMERICA,
Plaintiff,
v.
NEWDUNN ASSOCIATES, LLP; ORION
ASSOCIATES; NORTHWEST CONTRACTORS,
Defendants-Appellees.
MARY MARGARET WHIPPLE, Virginia
State Senator; L. PRESTON BRYANT,
Virginia State Delegate; CHESAPEAKE
BAY FOUNDATION, INCORPORATED,
 No. 02-1480
Amici Supporting Appellants.
NATIONAL ASSOCIATION OF REALTORS;
THE NATIONAL ASSOCIATION OF HOME
BUILDERS; NFIB LEGAL FOUNDATION;
NATIONAL ASSOCIATION OF
INDUSTRIAL AND OFFICE PROPERTIES;
NATIONAL MULTI HOUSING COUNCIL;
NATIONAL APARTMENT ASSOCIATION;
REAL ESTATE ROUNDTABLE; BUILDING
INDUSTRY LEGAL DEFENSE FOUNDATION;
FOUNDATION FOR ENVIRONMENTAL AND
ECONOMIC PROGRESS; INTERNATIONAL
COUNCIL OF SHOPPING CENTERS,
Amici Supporting Appellees. 
2 TREACY v. NEWDUNN ASSOCIATES
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
and
DENNIS H. TREACY, Director,
Department of Environmental Quality;
STATE WATER CONTROL BOARD,
Plaintiffs,
v.
NEWDUNN ASSOCIATES, LLP; ORION
ASSOCIATES; NORTHWEST CONTRACTORS,
Defendants-Appellees.
MARY MARGARET WHIPPLE, Virginia
State Senator; L. PRESTON BRYANT,
Virginia State Delegate; CHESAPEAKE
BAY FOUNDATION, INCORPORATED,
 No. 02-1594
Amici Supporting Appellant.
NATIONAL ASSOCIATION OF REALTORS;
THE NATIONAL ASSOCIATION OF HOME
BUILDERS; NFIB LEGAL FOUNDATION;
NATIONAL ASSOCIATION OF
INDUSTRIAL AND OFFICE PROPERTIES;
NATIONAL MULTI HOUSING COUNCIL;
NATIONAL APARTMENT ASSOCIATION;
REAL ESTATE ROUNDTABLE; BUILDING
INDUSTRY LEGAL DEFENSE FOUNDATION;
FOUNDATION FOR ENVIRONMENTAL AND
ECONOMIC PROGRESS; INTERNATIONAL
COUNCIL OF SHOPPING CENTERS,
Amici Supporting Appellees. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-01-508-2, CA-01-86-4, CA-01-508)
TREACY v. NEWDUNN ASSOCIATES 3
Argued: February 25, 2003
Decided: September 10, 2003
Before GREGORY and SHEDD, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Reversed and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Shedd and Senior Judge Beam joined.
COUNSEL
ARGUED: Katherine J. Barton, Environment & Natural Resources
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellant United States; John Kenneth Byrum, Jr.,
Assistant Attorney General, Richmond, Virginia, for State Appellants.
Mark Randolf Baumgartner, PENDER & COWARD, P.C., Virginia
Beach, Virginia, for Appellees. ON BRIEF: Thomas J. Sansonetti,
Assistant Attorney General, Ellen Durkee, Ethan G. Shenkman, Kent
E. Hanson, Environment & Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Kather-
ine D. Will, Office of General Counsel, U.S. ARMY CORPS OF
ENGINEERS, Norfolk, Virginia; Catherine Winer, Office of General
Counsel, U.S. ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C., for Appellant United States. Jerry W. Kilgore,
Attorney General of Virginia, Roger L. Chaffe, Senior Assistant
Attorney General, Rick R. Linker, Assistant Attorney General, Rich-
mond, Virginia, for State Appellants. Douglas E. Kahle, Richard H.
Matthews, PENDER & COWARD, P.C., Virginia Beach, Virginia,
for Appellees. Roy A. Hoagland, THE CHESAPEAKE BAY FOUN-
DATION, INC., Richmond, Virginia; Deborah M. Murray, SOUTH-
ERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia,
for Amici Curiae Whipple, et al. Virginia S. Albrecht, HUNTON &
WILLIAMS, Washington, D.C., for Amici Curiae Realtors, et al.
4 TREACY v. NEWDUNN ASSOCIATES
OPINION
GREGORY, Circuit Judge:
During the summer of 2001, without obtaining a permit from the
Army Corps of Engineers (the "Corps") or the Virginia State Water
Control Board (the "Board"), Newdunn Associates, Orion Associates,
and Northwest Contractors (collectively "Newdunn") began ditching
and draining wetlands on a forty-three-acre property near Newport
News, Virginia (the "Newdunn Property"). Pursuant to its authority
under the Clean Water Act ("CWA" or the "Act"), the Corps brought
a civil enforcement action in federal district court. The Board initiated
its own enforcement action in state court, premised on the Virginia
Nontidal Wetlands Resources Act of 2000 (the "Virginia Act").
Newdunn removed the state action to federal court, and the two cases
were consolidated. After a five-day bench trial, the district court ruled
for Newdunn in both cases, finding that the Corps lacked jurisdiction
over wetlands on the Newdunn Property under the Clean Water Act,
and that the jurisdictional reach of Virginia law was merely coexten-
sive with federal law. For the reasons stated below, we reverse.
I.
In 1978, Newdunn Associates purchased forty-three acres of land
located in Newport News, Virginia. It is undisputed that approxi-
mately thirty-eight acres of the Newdunn Property (the "Newdunn
Wetlands") were "wetlands," as that term is defined by the Corps in
its CWA regulations. 33 C.F.R. § 328.3(b) (2002) (defining "wet-
lands" as "those areas that are inundated or saturated by surface or
ground water at a frequency and duration sufficient to support, and
that under normal circumstances do support, a prevalence of vegeta-
tion typically adapted for life in saturated soil conditions"). Histori-
cally, before the construction of Interstate 64 ("I-64"), the wetlands
on the Newdunn Property had a natural hydrologic connection to
Stony Run, which is a navigable waterway-in-fact. Presently, the
Newdunn Wetlands remain connected to the navigable waters of
Stony Run by the intermittent flow of surface water through approxi-
mately 2.4 miles of natural streams and manmade ditches (paralleling
and crossing under I-64). Silt-laden waters from the Newdunn Wet-
TREACY v. NEWDUNN ASSOCIATES 5
lands merge with clear water flowing south of the manmade ditch on
the west side of I-64.
In May of 2001, following the Supreme Court’s ruling in Solid
Waste Agency of N. Cook County ("SWANCC") v. United States, 531
U.S. 159, 167 (2001), which struck down the Corps’ attempted exer-
cise of jurisdiction under its Migratory Bird Rule, Newdunn informed
the Corps that it believed the Corps lacked jurisdiction over the
Newdunn Property, and began filling the Newdunn Wetlands without
a permit. Newdunn argued that there were no "jurisdictional" wet-
lands on the property, even though the property contained "scientific"
wetlands. The Corps disagreed with Newdunn’s interpretation of
SWANCC, and on July 6, 2001, attempted to assert jurisdiction over
wetlands on the Newdunn Property by commencing an enforcement
action in federal district court, alleging violations of sections 301 and
404 of the Clean Water Act.
Based on the same activities, and pursuant to Virginia state law, the
Board issued an Emergency Special Order ("ESO"), mandating that
Newdunn cease stumping and grading on its property. Va. Code. Ann.
§ 62.1-44.15(8b). Newdunn ignored the ESO, and as a result, on
August 7, 2001, the Board filed a civil enforcement action in state
court, alleging violations of Va. Code Ann. §§ 62.1-44.5, 62.1-44.14,
62.1-44.15, 62.1-44.15:5, 62.1-44.23, and 62.1-44.32 (2001).
Newdunn removed the Board’s action to federal court. The Board,
claiming that the district court was without jurisdiction to consider its
case, filed a motion to remand. The court denied the Board’s motion,
and the Corps’ and the Commonwealth’s cases were consolidated for
a five-day bench trial in March of 2002.
As to the federal suit, the district court held that the Corps’ wet-
lands regulations were invalid because they exceeded Congress’ grant
of authority to the Corps under the Clean Water Act. On the state suit,
the court ruled that the Commonwealth "has been unable to show that
the Virginia Legislature has, at this time, granted regulatory authority
independently of the Corps’ jurisdiction." Accordingly, the district
court determined that the Commonwealth lacked jurisdiction over the
Newdunn Wetlands, since its authority was presumably coextensive
with the Corps’. This consolidated appeal followed.
6 TREACY v. NEWDUNN ASSOCIATES
II.
We review de novo both the district court’s statutory interpretation
of the Clean Water Act, Hughes River Watershed Conservancy v.
Glickman, 81 F.3d 437, 448 (4th Cir. 1996), and the district court’s
conclusion that it had subject matter jurisdiction over the Common-
wealth’s enforcement action, In re Celotex Corp., 124 F.3d 619, 625
(4th Cir. 1997). We review any factual findings of the district court
for clear error. Virginia Vermiculite, Ltd. v. Historic Green Springs,
Inc., 307 F.3d 277, 284 (4th Cir. 2002).
III.
A.
Before reaching the merits of either case, we must first determine
whether we have jurisdiction over the Board’s enforcement action
premised on Virginia law. In cases where state law creates the cause
of action, federal question jurisdiction is "unavailable unless it
appears that some substantial, disputed question of federal law is a
necessary element of one of the well-pleaded state claims." Franchise
Tax Bd. v. Constr. Laborers Vacation Trust, 461 U.S. 1, 13 (1983)
(emphasis added). For a federal issue to be both a necessary and dis-
puted element, "the vindication of a right under state law [must] nec-
essarily turn[ ] on some construction of federal law." Id. at 9(emphasis added).
In the present case, the district court noted that both the Virginia
state statute and the Corps’ federal regulations define "wetlands" as
"those areas that are inundated or saturated by surface or groundwater
at a frequency and duration sufficient to support, and that under nor-
mal circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions." 33 C.F.R. § 328.3(b);
Va. Code Ann. § 62.1-44.3. Based on this shared scientific definition,1
1
It is, of course, unexceptional that Virginia would elect to take advan-
tage of the Corps’ vast technical resources in elucidating the scientific
meaning of "wetlands," while at the same time making its own, unrelated
decision on when and where to exercise jurisdiction over those wetlands.
As Henry R. Butler and Jonathan R. Macey have observed:
TREACY v. NEWDUNN ASSOCIATES 7
the district court concluded "that the state statute is coextensive with
the CWA." In making this finding, however, the district court con-
fused the definition of "scientific wetlands" and "jurisdictional wet-
lands."
Newdunn concedes, and the district court recognized, that at least
thirty-eight acres of the Newdunn Property contained "wetlands" as
that term is used in both 33 C.F.R. § 328.3(b) and Va. Code Ann.
§ 62.1-44.3. Thus, from a scientific perspective, there is no disputed
federal question as to whether the Newdunn Property contains wet-
lands.2 Because the resolution of this case in no way turns upon any
interpretation of 33 C.F.R. § 328.3(b), there can be no federal ques-
tion jurisdiction based on Virginia’s decision to adopt the Corps’
technical definition of wetlands. See Franchise Tax Bd., 461 U.S. at
One real source of economies of scale associated with central-
ization of environmental regulation could be in centralized
research on technical, scientific issues that recur throughout a
number of different states . . . . These economies can be realized
by the federal government even when most policy-making and
implementation functions are handled by the states.
Henry R. Butler & Jonathan R. Macey, Using Federalism to Improve
Environmental Policy 26 (1996).
2
In fact, even if this case did involve a dispute over the scientific defi-
nition of wetlands, it is doubtful that the conflict would raise a question
of federal law. Importantly, the General Assembly did not reference or
cite to federal law in its definition of wetlands. Rather, it merely parroted
the language from the federal regulation in Va. Code Ann. § 62.1-44.3.
The fact that a state law might mimic the wording of a federal law, of
course, does not transform interpretation of the state statute into a federal
question.
Many states, for example, have "little NEPAs" on their books, which
are based on language found in federal law. See Bradley C. Karkkainen,
"Toward a Smarter NEPA: Monitoring and Managing Government’s
Environmental Performance," 102 Colum. L. Rev. 903, 905 (2002) (not-
ing that the National Environmental Policy Act, 42 U.S.C. § 4321, et
seq., "has inspired dozens of ‘little NEPAs’ at the state and local levels").
Notwithstanding the presence of mirrored language, courts applying
those statutes are interpreting state, not federal, law.
8 TREACY v. NEWDUNN ASSOCIATES
9. Stated differently, the issue is not whether the Newdunn Property
contains wetlands, but whether those wetlands are within the jurisdic-
tion of the State Water Control Board. The answer to this question is
resolved solely by looking to the Virginia Wetlands Resources Act of
2000, codified at Va. Code Ann. §§ 62.1-44.3, 44.5, 44.15, 44.15:5,
44.29 (2001).
The Virginia Act was crafted after this circuit announced its deci-
sion in United States v. Wilson, 133 F.3d 251 (4th Cir. 1997), and
after the D.C. Circuit invalidated the Corps’ Tulloch rule, which had
allowed the Corps to regulate incidental fallback as a pollutant added
to a wetland, see Nat’l Mining Assoc. v. U.S. Army Corps of Eng’rs,
145 F.3d 1399, 1404 (D.C. Cir. 1998). Following Wilson and
National Mining, and the subsequent loss of federal control over Vir-
ginia’s wetlands, nearly 10,000 acres of nontidal wetlands were
drained or were set to be drained in a period of less than six months.
See Tyler Whitley, "Nontidal Wetlands Rules Bill Expected," Rich-
mond Times-Dispatch, Dec. 1, 1999, at B4.3 Although Virginia was
losing wetlands at a dramatic pace, the State Water Control Board
was largely without authority to act. Interpreting then-existing state
law, former Attorney General Mark Earley opined, "[T]he Board [did]
not have authority to regulate wetlands beyond that contemplated by
the § 401 certification process" found in the CWA. 1999 Op. Va.
Att’y Gen. 179.
Subsequent to this 1999 opinion, environmentalists petitioned the
Virginia General Assembly to fill the regulatory vacuum. Delegate L.
Preston Bryant, Jr., responded to this call, and co-patroned a bill to
provide the state with a comprehensive, nontidal wetlands permitting
program. In a letter to then-Governor James S. Gilmore, III, Delegate
Bryant explained the need for his proposal as follows:
For many years, the federal wetlands permitting program
has fluctuated in its ability to protect Virginia’s nontidal
wetlands. This fluctuation has resulted not only from chang-
3
As Wilson and National Mining make clear, the district court erred
when it wrongly assumed that, prior to the Supreme Court’s ruling in
SWANCC, 531 U.S. 159 (2001), the Corps enjoyed "seemingly unlimited
jurisdiction."
TREACY v. NEWDUNN ASSOCIATES 9
ing administrations and policies within the federal U.S.
Army Corps of Engineers, but more recently from changing
federal case law . . . . A comprehensive state program would
remove the uncertainty created by changing federal policies
and case law decisions.
Letter from L. Preston Bryant, Jr., Delegate, to James S. Gilmore, III,
Governor (Dec. 3, 1999) (quoted in Br. of Amici Curiae Sen. Whip-
ple, et al. at 19). Delegate Bryant’s bill was ultimately passed into
law, becoming the Virginia Act at issue in this case. See S. 648, 2000
Gen. Assem., Reg. Sess. (Va. 2000); H.D. 1170, 2000 Gen. Assem.,
Reg. Sess. (Va. 2000) (amending Va. Code Ann. §§ 62.1-44.3, 44.5,
44.15, 44.15:5, 44.29). Newdunn posits that the Virginia Act was
crafted narrowly to close only the Tulloch loophole, and not to
broaden the Board’s jurisdiction within the Commonwealth. The plain
text of the Virginia Act, however, belies this contention. Virginia law
defines "state waters" broadly to include "all water, on the surface and
under the ground, wholly or partially within or bordering the Com-
monwealth or within its jurisdiction, including wetlands." Va. Code
Ann. § 62.1-44.3 (emphasis added). The words "including wetlands"
were added to the statute by the Virginia Act, without any jurisdic-
tional limitation. S. 648, 2000 Gen. Assem., Reg. Sess. (Va. 2000);
H.D. 1170, 2000 Gen. Assem., Reg. Sess. (Va. 2000). In "state
waters," Virginia law prohibits excavating, draining, filling, dumping,
or any other activity that may significantly alter or degrade a wetland
without a permit issued by the Board. See Va. Code Ann. § 62.1-44.5.
Nothing in the Virginia Act refers to the CWA’s definition of "navi-
gable waters" or the "waters of the United States." A plain reading of
the Virginia Act, therefore, makes it inconceivable that the term "wet-
lands" as it is used in the state legislation could necessarily turn on
the resolution of a question of federal law.4
4
In fact, if there were any doubt as to the meaning of the text, the legis-
lative history of the Virginia Act makes it abundantly clear that the legis-
lation was crafted, not to incorporate the CWA’s jurisdictional limits, but
rather to remedy perceived shortcomings with the jurisdictional reach of
federal law.
During the 2000 General Assembly session, legislators rejected a pro-
posal that would have limited the Board’s jurisdiction to those wetlands
10 TREACY v. NEWDUNN ASSOCIATES
Alternatively, Newdunn maintains that the Board’s jurisdiction
depends on a resolution of federal law because Va. Code Ann. § 62.1-
44.15:5 provides: "Issuance of a Virginia Water Protection Permit
shall constitute the certification required under § 401 of the Clean
Water Act." Based on this statute, Newdunn posits that the Board’s
jurisdiction must be coextensive with the Corps’. Newdunn’s theory,
however, is premised on a fundamental misunderstanding of the rela-
tionship between the federal and state permitting procedures.
Section 401(a)(1) of the CWA requires an applicant for a federal
permit to "provide the licensing or permitting agency a certification
from the State in which the discharge originates or will originate
. . . ." The Commonwealth, by enacting § 62.1-44.15:5, has taken
advantage of this federal provision, so that when federal and state
laws overlap, applicants may use their state permits to satisfy the cer-
tification requirements under section 401 of the CWA. Of course,
simply because a state permit carries the added benefit of satisfying
a potentially applicable federal requirement does not mean that the
"that are subject to federal jurisdiction under the federal Clean Water
Act." See Legislative History of S. 695, Gen Assem. Reg. Sess. (Va.
2000), available at http://leg1.state.va.us/001/bil.htm; Legislative His-
tory of H.D. 1246, 2000 Gen. Assem., Reg. Sess. (Va. 2000), available
at http://leg1.state.va.us/001/bil.htm.
Instead, lawmakers adopted an initiative that defined "wetlands" with-
out any federal jurisdictional limitation and that was crafted not only to
close the Tulloch loophole, but also "to protect and enhance the Com-
monwealth’s wetland resources" by charging the Board with designing
regulatory programs "to achieve no net loss of existing wetland acreage
and functions." See Legislative History of S. 648, Gen Assem. Reg. Sess.
(Va. 2000), available at http://leg1.state.va.us/001/bil.htm; Legislative
History of H.D. 1170, 2000 Gen. Assem., Reg. Sess. (Va. 2000), avail-
able at http://leg1.state.va.us/001/bil.htm.
As one commenter has observed, "Under Virginia’s new wetlands reg-
ulations, impacts that may have been permissible to isolated wetlands
under federal regulations will be limited in Virginia. This is because Vir-
ginia includes wetlands as part of its definition of ‘state waters.’" Lisa
Spickler Goodwin, Annual Survey of Virginia Law: Environmental Law,
37 U. Rich. L. Rev. 117, 143 (2002).
TREACY v. NEWDUNN ASSOCIATES 11
state’s jurisdictional reach turns on an interpretation of the CWA.
Undoubtedly, situations will arise where a permittee needs a state per-
mit, but no federal permit. In those situations, the state permitting pro-
cess would apply without reference to the CWA.
As the Supreme Court of Virginia recognized, "The CWA and fed-
eral regulations allow a state program to operate a discharge elimina-
tion system program in place of the federal program, provided that the
state program is authorized under state law and has standards that are
at least as stringent as the federal ones." State Water Control Bd. v.
Smithfield Foods, 542 S.E.2d 766, 768 (Va. 2001) (emphasis added).
That is, for a state’s permitting procedure to satisfy the federal
requirements of 33 U.S.C. § 1342(a), the state law must be "at least"
as exacting as the Clean Water Act, but of course, it may be more
demanding.
Even when state and federal requirements do overlap, as was the
case in Smithfield Foods, the issue of whether the Board has authority
to regulate the subject wetlands remains a question of Virginia law.
Accordingly, the Board’s jurisdiction cannot "necessarily depend" on
any interpretation of federal law, even if it happens that federal and
state laws are coextensive on the particular facts of a certain case. See
Franchise Tax Bd., 461 U.S. at 13.
The Virginia Supreme Court’s finding in Smithfield Foods that "the
interests and rights of both the [federal and state] entities [we]re
vested in a single permit" does not alter this analysis. See Smithfield
Foods, 542 S.E.2d at 770. In Smithfield Foods, because this court had
already "affirmed the finding of the district court that Smithfield was
liable," and because the United States Supreme Court denied certio-
rari, the federal determination was a final judgment for the purposes
of res judicata. Id. at 768. In the present case, while the Corps and
the Board may ultimately require Newdunn to obtain the same dis-
charge permit, no final judgment in either case has been rendered.
Depending upon how the Corps and Newdunn resolve the federal
case on remand, the Board’s interest may or may not be satisfied.
Accordingly, the Board should be permitted to pursue its rights in a
Virginia court. Of course, if either the state or federal actions were to
result in a final judgment requiring the issuance of a permit satisfying
12 TREACY v. NEWDUNN ASSOCIATES
both federal and state laws, then Newdunn might elect to file a motion
to have the unresolved action dismissed on the grounds of res judi-
cata. See Smithfield Foods, 542 S.E.2d at 771.
In sum, in light of the Virginia Act’s clear statutory language, it is
apparent that "Virginia now regulates activities in wetlands beyond its
federal mandate." Goodwin, Annual Survey of Virginia Law, 37 U.
Rich. L. Rev. at 141. It would be perverse, therefore, for this court to
conclude that the jurisdictional limits of the Virginia Act depend upon
the CWA. Any determination as to the extent of the Board’s jurisdic-
tional reach is purely a question of state law that does not require the
resolution of any federal question. Because we lack jurisdiction over
the Board’s action, we reverse the district court’s ruling on the
Board’s motion to remand, and we remand the state enforcement
action to the Virginia court from which it was improperly removed.
B.
We now turn to the only case for which federal subject matter juris-
diction exists — the Corps’ civil enforcement action premised on the
CWA.
The Federal Water Pollution Control Amendments of 1972, known
collectively as the Clean Water Act, were crafted "to restore and
maintain the chemical, physical, and biological integrity of the
Nation’s waters." 33 U.S.C. § 1251(a) (2002). To achieve this ambi-
tious goal, Congress mandated that "the discharge of any pollutant by
any person shall be unlawful" except as in compliance with the Act’s
permitting procedures. Id. § 1311. The permitting scheme at issue in
this case is articulated in section 404(a), which gives the Corps the
authority "to issue permits . . . for the discharge of dredged or fill
material into the navigable waters at specified disposal sites." Id.
§ 1344(a). The CWA defines "navigable waters" to include "the
waters of the United States, including the territorial seas," id.
§ 1362(7), and the Corps’ regulatory jurisdiction is limited by this
definition.
In 1985, the Supreme Court ruled that the Corps possessed the
authority to exercise jurisdiction over wetlands that were adjacent to
other waters, even though the wetlands themselves were not navigable
TREACY v. NEWDUNN ASSOCIATES 13
waters-in-fact. United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 139 (1985). The Court deferred to the Corps’ technical
expertise on the matter, noting the considerable difficulty, both for the
Corps and for federal courts, in defining the jurisdictional limits of the
Act. Id. at 132. The Court explained:
In determining the limits of power to regulate discharges
under the Act, the Corps must necessarily choose some
point at which water ends and land begins. Our common
experience tells us that this is often no easy task: the transi-
tion from water to solid ground is not necessarily or even
typically an abrupt one. Rather, between open waters and
dry land may lie shallows, marshes, mudflats, swamps, bogs
— in short, a huge array of areas that are not wholly aquatic
but nevertheless fall far short of being dry land. Where on
this continuum to find the limit of "waters" is far from obvi-
ous.
Id. The Corps had determined that wetlands adjacent to other waters
should be included in the definition of "waters of the United States,"
because "wetlands adjacent to lakes, rivers, streams, and other bodies
of water may function as integral parts of the aquatic environment
even when the moisture creating the wetlands does not find its source
in the adjacent bodies of water." Id. at 134-35. The Supreme Court
upheld the Corps’ exercise of jurisdiction, concluding, "We cannot
say that the Corps’ conclusion that adjacent wetlands are inseparably
bound up with the ‘waters’ of the United States — based as it is on
the Corps’ and the EPA’s technical expertise — is unreasonable." Id.
at 134.
The Supreme Court has recently reaffirmed Riverside Bayview
Homes, commenting: "It was the significant nexus between the wet-
lands and ‘navigable waters’ that informed our reading of the CWA
in Riverside Bayview Homes." SWANCC, 531 U.S. at 167; see also
United States v. Krilich, 303 F.3d 784, 791 (7th Cir. 2002) (observing
that the SWANCC Court "reaffirm[ed] its prior holding [in Riverside
Bayview Homes] that Section 404 encompassed non-navigable wet-
lands adjacent to navigable waters," but "explicitly declined to further
determine the exact meaning of ‘navigable waters’"). In SWANCC,
the Court struck down the Corps’ so-called "Migratory Bird Rule,"
14 TREACY v. NEWDUNN ASSOCIATES
which defined "waters of the United States" to include intrastate
waters, "[w]hich are or would be used as habitat by birds protected
by Migratory Bird Treaties; or . . . [w]hich are or would be used as
habitat by other migratory birds which cross state lines . . . ."
SWANCC, 531 U.S. at 164 (quoting 51 Fed. Reg. 41217). Quoting
Riverside Bayview Homes, the Court held that "Congress’ concern for
the protection of water quality and aquatic ecosystems indicated its
intent to regulate wetlands ‘inseparably bound up with the "waters"
of the United States.’" Id. at 167 (emphasis added). Thus, the Corps’
attempted exercise of jurisdiction over isolated ponds that had no
hydrologic connection whatsoever to navigable waters could not stand.5
Along similar lines, this court has previously held that the phrase
"waters of the United States" cannot be used by the Corps to assert
jurisdiction over intrastate, nonnavigable waters, solely on the ground
that those waters could possibly affect interstate commerce. United
States v. Wilson, 133 F.3d 251,253-54 (4th Cir. 1997). We explained,
"[T]o include intrastate waters that have nothing to do with navigable
or interstate waters, expands the statutory phrase ‘waters of the
United States’ beyond its definitional limit." Id. at 257-58 (emphasis
added). Accordingly, we struck down 33 C.F.R. § 328.3(a)(3),
because it attempted to give the Corps jurisdiction over any waters,
"the use, degradation or destruction of which could affect interstate
or foreign commerce . . . ." Id. at 257 (quoting 33 C.F.R. § 328.3(a)(a)
(1993)). As we held in Wilson, and as the Supreme Court affirmed in
SWANCC, the Corps’ jurisdiction does not extend to the limits of the
5
As is evident from the above discussion, Newdunn’s insistence that
SWANCC limited the Corps’ jurisdiction solely to those wetlands adja-
cent to navigable waters-in-fact is plainly incorrect. Unlike the adminis-
trative regulation at issue in Riverside Bayview Homes, the "Migratory
Bird Rule" before the Court in SWANCC was not developed to clarify the
scientifically nebulous point "at which water ends and land begins." Riv-
erside Bayview Homes, 474 U.S. at 134. Instead, the Corps’ supposed
justification for the rule was purely legal — that Congress drafted the
CWA with the intention of defining "waters of the United States" as
broadly as possible under the Commerce Clause. The Court rejected the
Corps’ interpretation of the CWA, recognizing that the Corps’ Com-
merce Clause argument would read the phrase "navigable waters" com-
pletely out of the statute. SWANCC, 531 U.S. at 172.
TREACY v. NEWDUNN ASSOCIATES 15
Commerce Clause. Rather, the critical, limiting term is ‘navigable
waters,’ as that term is defined in 33 U.S.C. § 1362(7).
In the present case, the Corps asserts jurisdiction over navigable
waters (33 C.F.R. § 328.3(a)(1)), tributaries of navigable waters
(§ 328.3(a)(5)), and "[w]etlands adjacent to waters (other than waters
that are themselves wetlands) . . ." (§ 328.3(a)(7)). The Corps defines
"adjacent" to mean, "bordering, contiguous, or neighboring. Wetlands
separated from other waters of the United States by man-made dikes
or barriers, natural river berms, beach dunes and the like are ‘adjacent
wetlands.’" 33 C.F.R. § 328.3(c). This circuit has recently concluded
that, pursuant to these regulations, the Corps intends to assert jurisdic-
tion over "any branch of a tributary system that eventually flows into
a navigable body of water." United States v. Deaton, 332 F.3d 698,
711 (4th Cir. 2003). In Deaton, the Corps claimed authority to regu-
late wetlands bordering a "roadside ditch" that took "a winding,
thirty-two mile path to the Chesapeake Bay." Id. at 702. Along the
way to the Bay, water flowed from the Deaton’s wetlands to the road-
side ditch, and then into a "culvert" on the other side of the road. Id.Water from the culvert drained into a second ditch, which flowed into
Beaverdam Creek. Beaverdam Creek was "a direct tributary of the
Wicomico River, which [was] navigable." Id. The distance from the
Deaton’s wetlands to a navigable-in-fact river was approximately
eight miles. The Deaton court upheld the Corps’ exercise of jurisdic-
tion over all of these waters, finding that "the Corps’s regulatory
interpretation of the term ‘waters of the United States’ as encompass-
ing nonnavigable tributaries of navigable waters does not invoke the
outer limits of Congress’s power or alter the federal-state frame-
work." Id. at 708. In dismissing a Commerce Clause challenge to the
Corps’ regulations, the Deaton court summarized Congress’ well-
articulated purpose for crafting the CWA and concluded, "The Corps
has pursued this goal by regulating nonnavigable tributaries and their
adjacent wetlands. This use of delegated authority is well within Con-
gress’s traditional power over navigable waters." Id. at 707. In sum,
the Corps’ unremarkable interpretation of the term "waters of the
United States" as including wetlands adjacent to tributaries of naviga-
ble waters is permissible under the CWA because pollutants added to
any of these tributaries will inevitably find their way to the very
waters that Congress has sought to protect.
16 TREACY v. NEWDUNN ASSOCIATES
To the extent that Newdunn challenges the Corps’ decision to label
the manmade, I-64 ditch a "tributary," that argument has also been
foreclosed by Deaton. The Deaton court recognized that the Corps
has defined the word "tributary" to include "the entire tributary sys-
tem," including roadside ditches. Id. at 710. As explained above, Dea-
ton deferred to the Corps’ definition of "tributary" because
"discharges into nonnavigable tributaries and adjacent wetlands have
a substantial effect on water quality in navigable waters." Id. at 712.
That the I-64 ditch at issue in the present case is a manmade rather
than a natural watercourse is an irrelevant distinction. As the Corps
has explained:
The discharge of a pollutant into a waterway generally has
the same effect downstream whether the waterway is natural
or manmade. Indeed, given the extensive human modifica-
tion of watercourses and hydrologic systems throughout the
country, it would be difficult to identify a principled basis
in this case for distinguishing between natural watercourses
and watercourses that are wholly or partly manmade or
modified.
(Br. for the United States at 48-49.) This observation is particularly
meaningful in the present case, where the United States has exten-
sively documented the connection between the Newdunn Property’s
wetlands and the navigable waters, both before and after the construc-
tion of I-64. Because of this longstanding connection, it would be
illogical to conclude that, prior to the existence of I-64, the Newdunn
Wetlands would have been within the ambit of the Corps’ regulations,
but that now, with the construction of the highway, the wetlands are
no longer jurisdictional.
As stated before, the CWA’s primary objective is "to restore and
maintain the chemical, physical, and biological integrity of the
Nation’s waters." 33 U.S.C. § 1251(a) (2002). If this court were to
conclude that the I-64 ditch is not a "tributary" solely because it is
manmade, the CWA’s chief goal would be subverted. Whether man-
made or natural, the tributary flows into traditional, navigable waters.
Accordingly, the Corps may permissibly define that tributary as part
of the "waters of the United States." See 33 U.S.C. § 1362(7).
TREACY v. NEWDUNN ASSOCIATES 17
Turning our attention to the specific wetlands at issue in this case,
it is undisputed that water flows intermittently from wetlands on the
Newdunn Property through a series of natural and manmade water-
ways, crossing under I-64, draining into the west arm of Stony Run,
and eventually finding its way 2.4 miles later to traditional navigable
waters. As the district court found, Stony Run is "navigable-in-fact"
because the "lower reaches of Stony Run are subject to the ebb and
flow of the tide." The court further found that "Stony Run flows into
the Warwick River, which intersects with the James River, which
intersects with the Hampton Roads Harbor, which intersects with the
Chesapeake Bay." These factual findings are supported in part by
photographic evidence of silt-laden water flowing from the subject
property into Stony Run. Because there exists a sufficient nexus
between the Newdunn Wetlands and navigable waters-in-fact, the
Corps’ jurisdiction in this case is amply supported by the Act and the
Corps’ regulations under the Act.
IV.
For the reasons stated above, the ruling of the district court is
reversed. We remand the Board’s state enforcement action directly to
the Virginia state court from which it was improperly removed. We
remand the Corps’ enforcement action to the district court for further
proceedings not inconsistent with this opinion.
REVERSED AND REMANDED