Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.

No. 21-454

In The

Supreme Court of the United States

MICHAEL SACKETT, ET UX.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

THE NATIONAL ASSOCIATION OF HOME

BUILDERS OF THE UNITED STATES IN

SUPPORT OF PETITIONERS

THOMAS J. WARD*

JEFFREY B. AUGELLO

NATIONAL ASSOCIATION

OF HOME BUILDERS

OF THE U.S.

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8230

tward@nahb.org

* Counsel of Record

i

TABLE OF CONTENTS

Page(s)

INTEREST OF AMICUS CURIAE ...................... 1

SUMMARY OF ARGUMENT ............................... 3

ARGUMENT ........................................................... 4

I. THERE ARE VARIOUS TYPES OF

WATERBODIES THAT THE COURT

COULD CONSIDER TRADITIONAL

NAVIGABLE WATERS ....................................... 5

A. Tidal Waters ............................................... 5

B. The “Navigable Waters of the United

States” or The Daniel Ball Waters............... 6

C. Rivers and Harbors Act Waters ............. 9

D. Navigable in Fact Waterbodies............ 12

E. The Agencies’ Regulatory Definition

of “Waters of the United States” or The

“(a)(1)” Waters ................................................ 13

II. THE TRADITIONAL NAVIGABLE WATERS

ARE THE DANIEL BALL WATERS ............. 14

A. In Rapanos, Justice Scalia and Justice

Kennedy Equate the Traditional

Navigable Waters With The Daniel Ball

Waters ............................................................ 14

ii

TABLE OF CONTENTS (cont.)

Page(s)

B. The Agencies Incorrectly Interpret The

Term Traditional Navigable Waters ....... 17

III. THE EPA HAS NOT DETERMINED

THAT PRIEST LAKE IS A “NAVIGABLE

WATER OF THE UNITED STATES”........ 20

CONCLUSION ..................................................... 24

iii

TABLE OF APPENDICES

Appendix A. Table 1 .............................................. A-1

Appendix B. Interim Guidance on the Rapanos

and Carabell Supreme Court Decision,

July 5, 2006 ........................................................ B-1

Appendix C. Waters of Idaho Regulated

Under Section 10 of the Rivers and Harbors

Act of 1899 .......................................................... C-1

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Akins v. Fed. Election Comm'n, 101 F.3d 731

(D.C. Cir. 1996), vacated on other grounds,

524 U.S. 11 (1998) ............................................... 19

Brewer-Elliott Oil & Gas Co. v. United States,

260 U.S. 77 (1922) ............................................... 13

Christensen v. Harris Cnty.,

529 U.S. 576 (2000) ............................................. 20

The Daniel Ball,

77 U.S. (10 Wall.) 557 (1870) ....................... passim

Econ. Light & Power Co. v. United States,

256 U.S. 113 (1921) ............................................8, 9

Emp. Sols. Staffing Grp. II, L.L.C. v. Off. of

Chief Admin. Hearing Officer, 833 F.3d 480

(5th Cir. 2016) ..................................................... 19

Escanaba & Lake Mich. Transp. Co. v. City

of Chicago, 107 U.S. 678, 682 (1883) .................... 5

Exec. Jet Aviation, Inc. v. City of Cleveland,

Ohio, 409 U.S. 249 (1972) ..................................... 8

Hardy Salt Co. v. S. Pac. Transp. Co.,

501 F.2d 1156 (10th Cir. 1974) ...................... 10-11

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ..........................................6, 18

v

TABLE OF AUTHORITIES (cont.)

Page(s)

Leslie Salt Co. v. Froehlke, 578 F.2d 742

(9th Cir. 1978) ....................................................... 8

Lykes Bros. v. U.S. Army Corps of Eng’rs,

64 F.3d 630 (11th Cir. 1995) ............................... 10

Marine Transit Corp. v. Dreyfus,

284 U.S. 263 (1932) ............................................... 6

Minnehaha Creek Watershed Dist. v. Hoffman,

597 F.2d 617 (8th Cir. 1979) ............................9, 11

Nat'l Wildlife Fed'n v. Alexander,

613 F.2d 1054 (D.C. Cir. 1979) ........................... 10

New York v. United States,

505 U.S. 144 (1992) ............................................. 18

Perry v. Haines, 191 U.S. 17 (1903)......................... 6

PPL Mont., LLC v. Montana,

565 U.S. 576 (2012) ....................................6, 12, 18

The Propeller Genesee Chief,

53 U.S. (12 How.) 443 (1851) ................................ 5

Rapanos v. United States and

Carabell v. U.S. Army Corps of Eng’rs,

547 U.S. 715 (2006) ...................................... passim

vi

TABLE OF AUTHORITIES (cont.)

Page(s)

Sierra Pac. Power Co. v. F. E. R. C.,

681 F.2d 1134 (9th Cir. 1982) ............................... 1

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159 (2001) .................. 18

State of Oklahoma v. State of Texas,

258 U.S. 574 (1922) ............................................. 13

Tundidor v. Miami-Dade Cnty., 831 F.3d 1328

(11th Cir. 2016) ..................................................... 6

United States v. Appalachian Elec. Power Co.,

311 U.S. 377 (1940) ......................................8, 9, 16

United States v. DeFelice, 641 F.2d 1169

(5th Cir. 1981) ....................................................... 8

United States v. Holt State Bank,

270 U.S. 49 (1926) ............................................... 12

United States v. The Montello,

78 U.S. (10 Wall.) 411 (1870) ................................ 7

United States v. Riverside Bayview Homes, Inc.,

729 F.2d 391 (6th Cir. 1984), rev'd,

474 U.S. 121 (1985) ............................................. 15

United States v. Sasser, 967 F.2d 993

(4th Cir. 1992) ....................................................... 6

vii

TABLE OF AUTHORITIES (cont.)

Page(s)

United States v. Stoeco Homes, Inc.

498 F.2d 597 (3d Cir. 1974) .............................6, 11

Utah v. United States, 403 U.S. 9 (1971) .............. 12

STATUTORY AND CONSTITUTIONAL

PROVISIONS

33 U.S.C. § 401 ......................................................... 9

33 U.S.C. § 403 ......................................................... 9

33 U.S.C. § 407 .................................................... 9-10

33 C.F.R. § 328.3(a)(1) ..................................1, 13, 19

33 C.F.R. § 329.4 .................................................... 10

40 C.F.R. § 120.2 ...............................................13, 19

40 C.F.R. § 122.2 ...................................................... 1

The Navigable Waters Protection Rule:

Definition of ‘‘Waters of the United States,’’

85 Fed. Reg. 22250 (April 21, 2020) ................... 13

Clean Water Rule: Definition of “Waters of the

United States” 80 Fed. Reg. 37054

(June 29, 2015) .................................................... 13

Final Rule for Regulatory Programs of the Corps

of Eng’rs, 51 Fed. Reg. 41206 (Nov. 13, 1986).... 13

viii

TABLE OF AUTHORITIES (cont.)

Page(s)

MISCELLANEOUS

Virginia S. Albrecht and Stephen M. Nickelsburg,

Could SWANCC Be Right? A New Look at the

Legislative History of the Clean Water Act,

32 Envtl. L. Rep. News & Analysis,

11402 (Sept. 2002)............................................... 15

John F. Baughman, Balancing Commerce, History,

and Geography: Defining the Navigable Waters of

the United States, 90 Mich. L. Rev. 1028 (1992) .. 6

Mark B. Harmon & Harry T. Gower, III,

Prosecuting Marine Pollution Crimes,

5 U.S.F. Mar. L.J. 241 (1993) ............................... 9

Mike Brodwater, Evidence of Logging Past,

THE SPOKESMAN-REVIEW, July 25, 2010,

www.spokesman.com/stories/20210/jul/

25/evidence-of-logging-past/ .............................. 23

Idaho Dept. of Fish and Game, Fisheries Mgmt

Plan: 2007-2012, https://idfg.idaho.gov/oldweb/docs/wildlife/planFisheries.pdf ................ 23

Lakes Considered Navigable For State Title

Purposes, https://www.idl.idaho.gov/wpcontent/uploads/sites/2/2020/01/list-navigablelakes-rivers-1-1.pdf.............................................. 23

ix

TABLE OF AUTHORITIES (cont.)

Page(s)

Navigability Determinations for the

Thirteenth Dist., https://www.pacificarea.

uscg.mil/Portals/8/District_13/dpw/

docs/Navigability_Determination_fr_the_

13th_Coast_Guard_District.pdf?ver=2017-0620-135946-777 ..................................................... 23

Steamboat “Tyee” pulling log boom on Priest

Lake, Idaho, Priest Lake Historical Photograph

Collection, https://www.lib.uidaho.edu/

digital/priestlake/items/priestlake224.html .... 23

U.S. EPA and U.S. Army Corps of Eng’rs,

Appendix D to the Jurisdictional Determination

Form Instructional Guidebook (June 5, 2007),

https://www.epa.gov/wotus/ appendix-d-legaldefinition-traditional-navigable-waters ..14, 17, 18

1

INTEREST OF AMICUS CURIAE 1

The National Association of Home Builders of the

United States (“NAHB”) is a Washington, D.C.based trade association whose mission is to enhance

the climate for housing and the building industry.

Chief among NAHB’s goals are providing and

expanding opportunities for all people to have safe,

decent, and affordable housing. Founded in 1942,

NAHB is a federation of more than 700 state and

local associations. About one-third of NAHB’s

approximately 120,000 members are home builders

or remodelers and are responsible for the

construction of 80% of all new homes in the United

States. The remaining members are associates

working in closely related fields within the housing

industry, such as environmental consulting,

mortgage finance and building products and

services.

A large part of building and selling homes consists

of obtaining and preparing land for construction. 2

That land often contains Clean Water Act (“CWA”)

“waters of the United States,” as the federal

government has defined and interpreted that term.

See 33 C.F.R. § 328.3(a); 40 C.F.R. § 122.2. Often

Amicus curiae has obtained consent from the Petitioners

and the Respondents have filed a blanket consent with the

Clerk. No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

1

2

land developers must alter those “waters” to ensure

that their communities make the best use of the land

in accordance with local and state zoning and land

use requirements. Unfortunately, the boundaries of

the CWA have been constantly changing due to the

“significant nexus” test developed in Rapanos v.

United States, 547 U.S. 715 (2006) and as

interpreted by the government.

These everchanging rules make it more costly for developers to

purchase and develop land and these costs in turn

make it difficult to provide homes that the public can

afford.

3

SUMMARY OF THE ARGUMENT

In Rapanos v. United States and Carabell v. U.S.

Army Corps of Eng’rs, 547 U.S. 715 (2006), the

plurality and concurring opinions, written by Justice

Scalia and Justice Kennedy, each tied the

jurisdiction of the CWA to “traditional navigable

waters.” There are numerous types of waterbodies

that the Court could consider traditional navigable

waters. Both Justice Scalia and Justice Kennedy,

however, equated the traditional navigable waters

with the “navigable waters of the United States” as

defined in The Daniel Ball, 77 U.S. (10 Wall.) 557

(1870).

The Agencies have improperly developed their own

broader definition of traditional navigable waters.

Moreover, they have improperly determined that

Priest Lake is a traditional navigable water using

that broad definition.

4

ARGUMENT

In Rapanos v. United States and Carabell v. U.S.

Army Corps of Eng’rs, 547 U.S. 715 (2006)

(hereinafter Rapanos), both the plurality and

concurring opinions, written by Justice Scalia and

Justice Kennedy, established that certain wetlands

are jurisdictional under the Clean Water Act

(“CWA”) if they have a sufficient connection to a

traditional navigable water.3 The lower courts in

this matter have grappled with the issue of whether

the wetlands on the Sackett property have a

sufficient connection to Priest Lake to support

jurisdiction under the CWA. It has been assumed,

with little analysis, that Priest Lake is a traditional

navigable water. NAHB disputes the government’s

definition of traditional navigable water and

questions whether Priest Lake is a traditional

navigable water.

The Agencies and the Court use the term traditional

navigable waters as if it is a settled term of art or

law. It is not. NAHB is concerned that the Court

may establish a jurisdictional test and use that term

without explanation, or inadvertently declare Priest

Lake a traditional navigable water without defining

the term and explaining why the Lake meets the

definition.

NAHB uses “traditional navigable waters” as a shorthand

for “traditionally navigable waters,” “navigable waters in the

traditional sense,” “waters that have traditionally been found

navigable,” etc.

3

5

I. THERE ARE VARIOUS TYPES OF

WATERBODIES THAT THE COURT

COULD CONSIDER TRADITIONAL

NAVIGABLE WATERS.

The term traditional navigable waters is not found

in the CWA nor is it defined by regulation. In

addition, the Court has not clearly defined

traditional navigable waters. Based on caselaw,

relevant statutes and regulatory documents NAHB

has developed a list of five types of waterbodies that

the Court could consider traditional navigable

waters. See Table 1 at App. A-1.

A. Tidal Waters.

The phrase “navigable waters” originated in

England. The common law test for navigability was

determined by the ebb and flow of tide—tidal waters

were considered navigable waters. That test grew

from the fact that in England there were very few

navigable waters that were not also tidal. The

Propeller Genesee Chief, 53 U.S. (12 How.) 443, 454–

55 (1851); Escanaba & Lake Michigan Transp. Co. v.

City of Chicago, 107 U.S. 678, 682 (1883). The

common law test, however, was insufficient in the

United States because “[s]ome of our rivers are as

navigable for many hundreds of miles above as they

are below the limits of tide water, and some of them

are navigable for great distances by large vessels,

which are not even affected by the tide at any point

during their entire length.” The Daniel Ball, 77 U.S.

(10 Wall.) 557, 563 (1870).

Thus, the Court

expanded the test for determining whether a

waterbody is a navigable water. United States v.

6

Sasser, 967 F.2d 993, 996 (4th Cir. 1992) (explaining

that the tidal test survived after The Daniel Ball);

United States v. Stoeco Homes, Inc., 498 F.2d 597,

610 (3d Cir. 1974) (explaining that The Daniel Ball

expanded the test for navigability but did not

extinguish the tidal test).

B. The “Navigable Waters of the United

States” or The Daniel Ball Waters.

The Court first developed a broader test of

navigability for regulatory 4 purposes in The Daniel

Some have questioned whether The Daniel Ball is an

admiralty case or a Commerce Clause case.

John F.

Baughman, Balancing Commerce, History, and Geography:

Defining the Navigable Waters of the United States, 90 Mich. L.

Rev. 1028, 1037 n. 66 (1992). The ship was libeled in

admiralty. However, the underlying license regulations were

based on Congress’s Commerce Clause power. The Daniel Ball,

77 U.S. (10 Wall.) at 558, 564. Moreover, the constitutional

issue before the Court was the scope of federal Commerce

Clause authority regarding the transportation of goods on a

vessel that did not travel out of state but whose goods were

destined for other states. Finally, even this Court has referred

to The Daniel Ball as “a case concerning federal power to

regulate navigation.” PPL Montana, LLC v. Montana, 565 U.S.

576, 591 (2012); see Kaiser Aetna v. United States, 444 U.S. 164,

171 (1979) (citing to The Daniel Ball “to define the scope of

Congress’ regulatory authority under the Interstate Commerce

Clause”).

4

Moreover, The Daniel Ball test is the same basic test federal

courts use to determine their admiralty or maritime

jurisdiction. Marine Transit Corp. v. Dreyfus, 284 U.S. 263,

271–72 (1932); Perry v. Haines, 191 U.S. 17, 26 (1903). For

admiralty jurisdiction, however, the waterbody must presently

be able to transport interstate commerce. Tundidor v. MiamiDade Cnty., 831 F.3d 1328, 1331–32 (11th Cir. 2016).

7

Ball, 77 U.S. (10 Wall.) at 563 (1870). The case

concerned whether the steamship, the Daniel Ball,

violated federal law by failing to be licensed and

inspected as required by statute. Id. at 558. It was

stipulated that the steamer only traveled between

Grand Haven, at the mouth of the Grand River to

Grand Rapids. Id. at 559. The owners argued that

the Grand River was not a navigable water of the

United States and thus, the license and inspection

requirements did not apply to the Daniel Ball. Id.

at 561. The Court established a two-part test for

determining whether waterbodies are “navigable

waters of the United States.” First, they must be

“navigable in fact,” which means they are “used, or

are susceptible of being used, in their ordinary

condition, as highways for commerce, over which

trade and travel are or may be conducted in the

customary modes of trade and travel on water.” Id.

at 563. Second, they are considered navigable

waters of the United States (as opposed to navigable

waters of the States) “when they form in their

ordinary condition by themselves, or by uniting with

other waters, a continued highway over which

commerce is or may be carried on with other States

or foreign countries in the customary modes in which

such commerce is conducted by water.” 5 Id.; see also,

United States v. The Montello, 78 U.S. (11 Wall.) 411,

415 (1870)(“If, however, the river is not of itself a

highway for commerce with other States or foreign

countries, or does not form such highway by its

Thus, the two-part test has a navigation component

(customary modes of travel), a commerce component (a

highway of commerce for trade and travel), and an interstate

component (connection to other states or countries).

5

8

connection with other waters, and is only navigable

between different places within the State, then it is

not a navigable water of the United States, but only

a navigable water of the State . . .”). The Court held

that the Grand River was a navigable water of the

United States because it joins Lake Michigan and

thereby forms a highway of commerce that connects

the River “with other States and with foreign

countries.” The Daniel Ball, 77 U.S. (10 Wall.) at

564 (1870).

The Daniel Ball expanded but did not supplant the

tidal waters test. Thus, tidal waters are also still

considered navigable waters of the United States.

See Exec. Jet Aviation, Inc. v. City of Cleveland,

Ohio, 409 U.S. 249, 253 (1972) (explaining that

maritime jurisdiction was “expanded” from tidal

waters to navigable waters); United States v.

DeFelice, 641 F.2d 1169, 1175 n. 14 (5th Cir. 1981);

Leslie Salt Co. v. Froehlke, 578 F.2d 742, 749 (9th

Cir. 1978) (recognizing that The Daniel Ball

expanded the tidal test to non-tidal inland waters).

Additionally, over time, the first part of The Daniel

Ball test has been expanded for Commerce Clause

purposes. In Econ. Light & Power Co. v. United

States, 256 U.S. 113, 123 (1921), the Court clarified

that a waterbody that was used for commercial

navigation in the past remains navigable in fact

even if it is not currently used for that purpose.

Furthermore, in United States v. Appalachian Elec.

Power Co., 311 U.S. 377, 406–408 (1940), the Court

held that a water body is navigable in fact if it can

be made so with reasonable improvements. The

second part of The Daniel Ball test (the interstate

connection element), however, has not been altered.

9

Minnehaha Creek Watershed Dist. v. Hoffman, 597

F.2d 617, 623 (8th Cir. 1979) (hereinafter

Minnehaha); Mark B. Harmon & Harry T. Gower,

III, Prosecuting Marine Pollution Crimes, 5 U.S.F.

Mar. L.J. 241, 249 (1993).

Therefore, a navigable water of the United States is

a water that (i) was or is used, or is susceptible of

being used with reasonable improvements, as a

highway for commerce, over which trade and travel

are or may be conducted in the customary modes of

trade and travel on water and (ii) forms by itself, or

by uniting with other waters, a continued highway

over which commerce was, is or may be carried on

with other States or foreign countries. The Daniel

Ball, 77 U.S. (10 Wall.) at 561-563 (1870);

Appalachian Elec. Power Co., 311 U.S. at 406–408

(1940); Econ. Light & Power Co., 256 U.S. at 123

(1921).

C. Rivers and Harbors Act Waters.

Sections 9 and 10 of the Rivers and Harbors Act of

18996 provide the U.S. Army Corps of Engineers

(“Corps”)

with

regulatory

authority

over

obstructions to navigable waters. 33 U.S.C. §§ 401,

403. Section 13 of the Rivers and Harbors Act makes

it unlawful to place refuse into the navigable waters

of the United States or their tributaries. 33 U.S.C.

Section 9 regulates bridges, dams, and causeways, while

Section 10 deals with smaller obstructions such as piers,

wharfs, and fill material. 33 U.S.C. §§ 401, 403.

6

10

§ 407. The Corps defines its authority under the

Rivers and Harbors Act as follows:

Navigable waters of the United States are

those waters that are subject to the ebb and

flow of the tide and/or are presently used, or

have been used in the past, or may be

susceptible for use to transport interstate or

foreign commerce.

33 C.F.R. § 329.4. The first part of the sentence

reflects the historic use of tidal influence to define

navigable waters of the United States. However, the

government has argued that, pursuant to this

language, a waterbody is a navigable water of the

United States, even if it does not form by itself or by

uniting with other waters a highway “over which

commerce is or may be carried on with other States

or foreign countries.” The Daniel Ball, 77 U.S. (10

Wall.) at 563 (1870). Numerous courts of appeals

have rejected this argument and have held that the

waters covered by the Rivers and Harbors Act are

identical to the The Daniel Ball waters. Lykes Bros.,

Inc. v. U.S. Army Corps of Eng’rs, 64 F.3d 630, 634

(11th Cir. 1995) (providing that Rivers and Harbors

Act waters must meet both parts of The Daniel Ball

test); Nat'l Wildlife Fed'n v. Alexander, 613 F.2d

1054, 1062 (D.C. Cir. 1979) (explaining that section

10 waters are limited “to those waters usable in

interstate commerce that connect with other waters

so as to form a continuous interstate waterway.”);

Hardy Salt Co. v. S. Pac. Transp. Co., 501 F.2d 1156,

1169 (10th Cir. 1974) (“[A] navigable water of the

United States within the meaning of Sections 9, 10

and 13 of the Rivers and Harbors Act must be

11

construed in line with the interpretation in The

Daniel Ball, as contemplating such a body of water

forming a continued highway over which commerce

is or may be carried on with other states or foreign

countries, by water.”); Stoeco Homes, Inc., 498 F.2d

at 609 (3d Cir. 1974) (quoting the The Daniel Ball

two-part test); See also Sierra Pac. Power Co. v. F. E.

R. C., 681 F.2d 1134, 1138 (9th Cir. 1982)

(explaining that a “navigable water of the United

States” as used in the Federal Power Act must meet

The Daniel Ball two-part test).

In Minnehaha, the U.S. Court of Appeals for the

Eight Circuit addressed waterbodies like those in

Sackett. In Minnehaha, plaintiffs challenged the

Corps assertion of Rivers and Harbors Act authority

over Lake Minnetonka. Lake Minnetonka is located

entirely within Minnesota and its sole connecting

waterway is Minnehaha Creek. Minnehaha, 597

F.2d at 623 (1979). The parties agreed that Lake

Minnetonka was navigable in fact, but the Eighth

Circuit found that only the upper portion of

Minnehaha Creek was navigable. The Corps argued

that the Lake and Creek had interstate road and rail

connections, and that made them part of a highway

of commerce. Id. at 620. The court rejected this

argument. It explained that though the first part of

The Daniel Ball test has been clarified over time, the

second part has not been changed. Thus, because

the waterbodies did not “form in themselves, or in

conjunction with other navigable waters a continued

highway over which interstate commerce [could] be

conducted,” the court held that the Corps did not

have jurisdiction under the Rivers and Harbors Act.

Id. at 623.

12

D. Navigable in Fact Waterbodies.

Pursuant to the equal footing doctrine, states hold

the title to the bed of waterbodies (within the state)

that were navigable at the time the state was

admitted into the Union. PPL Montana, LLC v.

Montana, 565 U.S. 576, 590–91 (2012).

To

determine navigability for title purposes, the courts

use only the first part of The Daniel Ball test—

namely whether waterbodies are “used, or are

susceptible of being used, in their ordinary

condition, as highways for commerce, over which

trade and travel are or may be conducted in the

customary modes of trade and travel on water.” Id.

at 592 (quoting The Daniel Ball). Thus, “navigable

in fact” waters refer to waters that satisfy only the

first part of The Daniel Ball test.

For example, in Utah v. United States, 403 U.S. 9

(1971), the federal government contested Utah’s

ownership of the bed of the Great Salt Lake. Utah

proved that commerce had moved on the lake, but

not to other states by water. Id. at 11-12. The Court

explained that because the Great Salt Lake was

navigable in fact under the first part of The Daniel

Ball test, Utah owned the bed underneath it. Id.

Furthermore, the Court stated that “the fact that the

Great Salt Lake is not part of a navigable interstate

or international commercial highway in no way

interferes with the principle of public ownership of

its bed.” Id. at 10. In other words, as long as the

Lake was “navigable in fact” (which it was) then the

state had title to the bed. See also United States v.

Holt State Bank, 270 U.S. 49, 56 (1926) (utilizing the

first part of The Daniel Ball to determine title);

13

Brewer-Elliott Oil & Gas Co. v. United States, 260

U.S. 77, 84-86 (1922) (utilizing the first part of The

Daniel Ball to determine title); State of Oklahoma v.

State of Texas, 258 U.S. 574, 583 (1922) (utilizing the

first part of The Daniel Ball to determine title).

E. The Agencies’ Regulatory Definition of

“Waters of the United States” or The

“(a)(1)” Waters.

The U.S. Environmental Protection Agency’s and

Corps’ (collectively, “the Agencies”) regulations

define (in part) the CWA term “waters of the United

States” as “waters which are currently used, or were

used in the past, or may be susceptible to use in

interstate or foreign commerce, including waters

which are subject to the ebb and flow of the tide.” 33

C.F.R. §328.3(a)(1); 40 C.F.R. § 120.2. These waters

are often referred to as the “paragraph (a)(1)” or

simply the “(a)(1)” waters.

Since 2015, the Agencies have struggled to fully

define the CWA term “waters of the United States.”

The Navigable Waters Protection Rule: Definition of

‘‘Waters of the United States,’’ 85 Fed. Reg. 22250

(April 21, 2020); Clean Water Rule: Definition of

‘‘Waters of the United States,’’ 80 Fed. Reg. 37054,

(June 29, 2015); Final Rule for Regulatory Programs

of the Corps of Eng’rs, 51 Fed. Reg. 41206 (Nov. 13,

1986).

Even through the Agencies’ various

iterations they have maintained the above language

as part of the definition of “waters of the United

States.” 85 Fed. Reg. at 22338, 80 Fed. Reg. at

37104, 51 Fed. Reg. at 41250.

14

The Agencies erroneously refer to these waters,

together with the territorial seas, as the traditional

navigable waters. U.S. EPA and U.S. Army Corps of

Eng’rs, Appendix D to the Jurisdictional

Determination Form Instructional Guidebook (June

5,

2007)

(“Appendix

D”),

available

at

https://www.epa.gov/wotus/appendix-d-legaldefinition-traditional-navigable-waters.

II. THE TRADITIONAL NAVIGABLE WATERS

ARE THE DANIEL BALL WATERS.

Despite the plethora of different waterbodies that

could be the “traditional navigable waters,” NAHB

believes that only one definition is supported by this

Court’s case law: the definition of navigable waters

of the United States as identified in The Daniel Ball

and the Rivers and Harbors Act. The government’s

“(a)(1)” definition does not describe the “traditional”

navigable waters for the reasons detailed below.

A. In Rapanos, Justice Scalia and Justice

Kennedy Equate the Traditional Navigable

Waters With The Daniel Ball Waters.

In Rapanos, the issue was whether the Corps had

jurisdiction over certain wetlands that were not

adjacent to a traditional navigable water. Rapanos,

547 U.S. at 715 (2006). Justice Scalia, writing for

the plurality, developed a two-part jurisdictional

test. First, it requires the presence of a relatively

permanent water body that is connected to a

“traditional interstate navigable water.” Second, it

requires the wetland in question to have a

“continuous surface connection” to the relatively

15

permanent waterbody. Id. at 742 (2006) (plurality

opinion).

Similarly, Justice Kennedy’s test requires “the

existence of a significant nexus between the

wetlands in question and navigable waters in the

traditional sense.” Rapanos, 547 U.S. at 779 (2006).

(Kennedy, J. concurring). Thus, both tests require a

connection to a traditional navigable water.

Justice Scalia’s test applied the term—“traditional

interstate navigable water.” By using the word

“interstate” he suggested a waterbody that can be

used to travel to other states. Id. at 742. In addition,

he referenced the term “navigable waters of the

United States” (citing to The Daniel Ball) and

referred to the “navigable waters of the United

States” as the “traditional judicial definition” of

“navigable waters.” Id. at 723. Finally, when

describing United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985), he explained that

the Court “upheld the Corps’ interpretation of ‘the

waters of the United States’ to include wetlands that

‘actually abut[ted] on’ traditional navigable waters.”

Rapanos, 547 U.S. at 725 (2006). In Riverside, the

government described the waterbody in question,

Black Creek, as a “navigable water of the United

States.” Virginia S. Albrecht and Stephen M.

Nickelsburg, Could SWANCC Be Right? A New Look

at the Legislative History of the Clean Water Act, 32

Envtl. L. Rep. News & Analysis 11402, 11052 n. 90

(Sept. 2002); see also United States v. Riverside

Bayview Homes, Inc., 729 F.2d 391, 394 (6th Cir.

1984) (describing Black Creek as navigable and a

tributary to Lake St. Clair. Lake St. Clair is also

16

navigable and shares a border with Canada).

Therefore, because Black Creek is a navigable water

of the United States and Justice Scalia referred to it

as a traditional navigable water, he equated

navigable waters of the United States with

traditional navigable waters.

Thus, in Rapanos, Justice Scalia associated

traditional navigable waters with the navigable

waters of the United States as defined in The Daniel

Ball.

Similarly, Justice Kennedy discussed waters that

are “susceptible to use in interstate commerce,”

referred to them as “the traditional understanding

of the term ‘navigable waters of the United States,’”

and then cited both Appalachian Elec. Power Co.,

311 U.S. at 406–408 (1940) and The Daniel Ball, 77

U.S. (10 Wall.) at 563–564 (1870). Rapanos, 547 U.S.

at 760 (2006) (Justice Kennedy concurring). By

using the term “navigable waters of the United

States” he also equated traditional navigable waters

to The Daniel Ball and Rivers and Harbors Act

waters.

***

While the shifting terminology of both justices has

proved confusing to the lower courts, nonetheless, in

Rapanos both the plurality and concurring opinions

equated the traditional navigable waters with the

waters the Court identified in The Daniel Ball.

17

B. The Agencies Incorrectly Interpret The

Term Traditional Navigable Waters.

In July 2006, in response to the Rapanos decision,

the Corps issued guidance to the field concerning

when and how to make CWA jurisdictional

determinations. App. B-1.

Throughout that

guidance document, the Corps referred to the

“traditionally navigable (Section 10) waters.” App.

B-1 at B-1 to B-5. Thus, at that time the Corps

correctly recognized that the “Section 10” or Rivers

and Harbors Act waters were the traditional

navigable waters.

Subsequently, in June 2007, the Agencies

reinterpreted their understanding of traditional

navigable waters in Appendix D of the U.S. E.P.A. &

Army Corps of Eng’rs, Jurisdictional Determination

Form Instructional Guidebook (June 5, 2007),

https://www.epa.gov/wotus/appendix-d-legaldefinition-traditional-navigable-waters (“Appendix

D”). In that document, the Agencies initially provide

that (a)(1) waters are traditional navigable waters

and conclude that any waterbody that is tidal, a

navigable water of the United States or is navigable

in fact is a traditional navigable water.

This document is flawed. First, the Agencies provide

that a waterbody is a “navigable water of the United

States” if it is tidal or “is presently used, or has been

used in the past, or may be susceptible for use (with

or without reasonable improvements) to transport

interstate or foreign commerce.” Id. at 2. While this

definition is partly correct, it fails to fully recognize

the second part of The Daniel Ball test and the court

18

cases which hold that the jurisdiction of the Rivers

and Harbors Act is congruent with that test. Supra

pp. 10-11.

Furthermore, the Agencies provide that “[I]f the

federal courts have determined that a water body is

navigable-in-fact under federal law for any purpose,

that water body qualifies as a ‘traditional navigable

water.’” Appendix D at 2-3 (2007) (emphasis added).

That statement flies in the face of this Court’s

decision in PPL Montana. In PPL Montana, the

Court explained that it does not apply the test for

“navigability” the same way when being used to

determine title, for admiralty purposes or for

analyzing the scope of the government’s authority

over interstate commerce. PPL Mont., 565 U.S. at

592-93 (2012); see also Kaiser Aetna v. United States,

444 U.S. at 170-71 (1979). If the purpose of a

navigability determination impacts how the test is

applied, then so should the purpose of determining

if a waterbody is a traditional navigable water. In

other words, it makes little sense to use the test for

determining navigability under the equal footing

doctrine (navigable-in-fact) as a basis for

determining the scope of the CWA which is based on

Congress’s Commerce Clause authority. See e.g.,

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159, 171–73 (2001)

(providing that Congress enacted the CWA under its

Commerce Clause authority); New York v. United

States, 505 U.S. 144 (1992) (explaining that the

CWA, among other acts, was enacted pursuant to

the Commerce Clause).

19

Moreover, the Agencies (a)(1) definition provides

that a “water of the United States” is one that “may

be susceptible to use in interstate or foreign

commerce . . ..” 33 C.F.R. §328.3(a)(1); 40 C.F.R. §

120.2. (emphasis added). This definition removes

any requirement that waterbodies be “used . . . as

highways for commerce, over which trade and travel

are or may be conducted . . ..” The Daniel Ball, 77

U.S. (10 Wall.) at 563 (1870). Thus, there is no

navigability requirement. A waterbody can be

“used” for commerce and still not be navigable. For

example, a ranch pond could be used to water cattle

that are sold in interstate commerce. That pond is

“used” in commerce, but not as a highway to move

goods or people.

Finally, the Agencies’ interpretation of traditional

navigable waters is not due any deference. First, the

term traditional navigable water is not a statutory

term but a judicial phrase. As such, Congress did

not delegate the authority to define the term to the

Agencies and Courts are not “obliged to defer to an

agency's interpretation of Supreme Court precedent

under Chevron or any other principle.” Akins v. Fed.

Election Comm'n, 101 F.3d 731, 740 (D.C. Cir. 1996),

vacated on other grounds, 524 U.S. 11 (June 1, 1998);

Emp. Sols. Staffing Grp. II, L.L.C. v. Off. of Chief

Admin. Hearing Officer, 833 F.3d 480, 484 (5th Cir.

2016) (“agency’s interpretations of caselaw are

reviewed de novo.”). In addition, Appendix D is part

of a guidance document that was created without

public input pursuant to the Administrative

Procedure Act’s notice and comment requirements.

“Interpretations such as those in opinion letters—

like interpretations contained in policy statements,

20

agency manuals, and enforcement guidelines, all of

which lack the force of law—do not warrant

Chevron-style deference.” Christensen v. Harris

Cnty., 529 U.S. 576, 587 (2000).

***

A close reading of Rapanos reveals that the plurality

and concurring opinions equate the phrase

traditional navigable waters with the navigable

waters of the United States as the Court defined

that term in The Daniel Ball. The Agencies,

however, have misinterpreted the term traditional

navigable waters. Their definition deletes the

navigability requirement, waters down the

commerce connection, and removes any interstate

element.

Therefore, if the Court continues to use the phrase

traditional navigable waters it should clearly equate

those waters to the navigable waters of the United

States as defined in The Daniel Ball. In contrast,

the Court could abandon the phrase traditional

navigable waters and instead simply use the welldefined term navigable waters of the United States.

III. THE EPA HAS NOT DETERMINED THAT

PRIEST LAKE IS A “NAVIGABLE WATER

OF THE UNITED STATES”.

The proper identification of a traditional navigable

water is the essential, foundational component of

any CWA jurisdictional analysis. Rapanos, 547 U.S.

at 779 (2006). Here the Sacketts’ wetlands flow into

an unnamed tributary, to Kalispell Creek and then

21

into Priest Lake. From Priest Lake the water flows

to the Priest River and then to the Pend Oreille

River. The Corps has determined that the Pend

Oreille

River,

which

traverses

the

Idaho/Washington state border, is a navigable water

of the United States. App. C-1.7

As detailed above, supra p.7 n.5, navigable waters of

the United States include a navigation element, a

commerce element, and an interstate element. The

administrative record confirms that Priest Lake is

navigable and can support commerce. However, the

government has not demonstrated that commerce on

Priest Lake can move to another state by water.

Thus, Priest Lake may lack an interstate element.

The Corps’ Jurisdictional Determination (“JD”) of

May 15, 2008, prepared by EPA Wetland Ecologist

John Olson, opens with the identification of Priest

Lake as the nearest downstream traditional

navigable water into which the Sacketts’ wetlands

flow. Olson details a flow route from the wetlands

to an unnamed tributary to Kalispell Creek to Priest

Lake. Cert. App. C-1. Field notes prepared in

support of the JD read:

Priest Lake is [a] TNW (consistent w/

previous COE JDs around lake and based on

interstate commercial use on lake and

navigation-in-fact with commercial uses

(boat rentals, fishing guides, public

Reproduced from https://www.nww.usace.army.mil/

Portals/28/docs/regulatory/Sec10Waters/Section10RiversId

aho.pdf?ver=2016-06-03-150345-950 (last visited April 11,

2022).

7

22

campground and

marinas, etc.)).

boat

ramps,

private

Administrative Record by Nicholas J. Woychick,

Sackett, et al. v. Johnson, No. 2:08-cv-00185 (Jan. 15,

2013), Dkt#62, Olson Inspection Notes re: Sackett

Site Inspection on 05/15/2008, 00317, 00319 (May

15, 2008) (“Admin. Record Index #31”) (emphasis

added). The administrative record also includes a

2007 Priest Lake-specific JD prepared by Gregg

Rayner of the Corps’ Walla Walla District. Rayner

also classifies Priest Lake as an “(a)(1)” water, or

Traditional Navigable Water:

Priest Lake is jurisdictional because it is

used in interstate commerce (Category B. (1))

and is an impoundment of waters (Category

B. (4)) and flows to navigable waters of the

United States (Category A). Out-of-state

and foreign visitors use Priest Lake for

boating, fishing, swimming, hunting, and

general recreation. Visitors use the public

boat launch facilities available around the

lake. There are commercial marinas on the

lake that are also used by out-of-state

visitors. Priest Lake flows into Priest River

which flows into Pend Oreille River, which is

a navigable water of the United States

(Category A).

Administrative Record by Nicholas J. Woychick,

Sackett, et al. v. Johnson, No. 2:08-cv-00185 (Jan. 15,

2013), Dkt#62,

Priest Lake Jurisdictional

Determination by Gregg Rayner, U.S. Army Corps of

Eng’rs, Walla Walla Dist., 00145, 00146 (Feb. 21,

23

2007) (“Admin. Record Index #8”) (emphasis added).

Priest Lake clearly meets the “navigation” element

of a traditional navigable water. 8 The lake has

23,360 surface acres, 62 miles of shoreline, and a

depth of more than 350 feet. JA at 33-35.9 Sailing,

canoeing, kayaking, fishing, and other water-based

recreational activities are prevalent. Likewise,

there is little doubt that Priest Lake meets the

“commerce” element because steam-powered logging

tugs of a bygone era once traversed the lake. 10

The Idaho State Board of Land Commissioners together

with the state courts have determined that Priest Lake is a

“navigable” water for state title purposes. Lakes Considered

Navigable For State Title Purposes, available at

https://www.idl.idaho.gov/wp-content/uploads/sites/2/

2020/01/list-navigable-lakes-rivers-1-1.pdf (last visited April

10, 2022); The U.S. Coast Guard has determined that Priest

Lake is a “navigable” water for the purposes of exercising Coast

Guard authority and jurisdiction. Navigability Determinations

for

the

Thirteenth

District,

available

at

https://www.pacificarea.uscg.mil/Portals/8/District_13/dp

w/docs/Navigability_Determination_fr_the_13th_Coast_Guar

d_District.pdf?ver=2017-06-20-135946-777 (last visited April

10, 2022).

8

Idaho Dept of Fish and Game, Fisheries Management Plan:

2007-2012 at 133, available at https://idfg.idaho.gov/

old-web/docs/wildlife/planFisheries.pdf (last visited April 10,

2022).

9

Mike Brodwater, Evidence of Logging Past, THE

SPOKESMAN-REVIEW,

July

25,

2010,

available

at

www.spokesman.com/stories/2010/jul/25/evidence-oflogging-past/ (last visited April 10, 2022). See also Steamboat

“Tyee” pulling log boom on Priest Lake, Idaho, Priest Lake

Historical

Photograph

Collection,

available

at

https://www.lib.uidaho.edu/digital/priestlake/items/

priestlake224.html (last visited April 10, 2022).

10

24

However, just because a waterbody is capable of

supporting boat traffic and used in commerce does

not necessarily make it a navigable water of the

United States. The government has ignored The

Daniel Ball’s interstate requirement. 77 U.S. (10

Wall.) 557, 563 (1870).

Accordingly, it never

determined whether Priest Lake, an intrastate lake,

unites with other waters to form a continued

highway over which commerce is or may be carried

on with other states or foreign countries.

The government points to “out-of-state and foreign

visitors” arriving overland to participate in

commercial activities (boat rentals, fishing guides,

commercial marinas) on Priest Lake to illustrate a

connection to commerce. Rather, the analysis

should center on Priest Lake, Priest River, and the

Pend Oreille River and whether those waters

together form an interstate highway of waterborne

commerce. Absent such a finding, Priest Lake does

not qualify as a navigable water of the United States

or a traditional navigable water.

CONCLUSION

In Rapanos, both the plurality and concurring

opinions require that a sufficient connection exist

between wetlands (not adjacent to traditional

navigable waters) and traditional navigable waters

for the wetlands to fall within the jurisdiction of the

CWA.

Moreover, both opinions equate the

traditional navigable waters to navigable waters of

the United States as characterized by The Daniel

Ball two-part test. Finally, it is unclear that Priest

Lake satisfies The Daniel Ball test.

25

NAHB, therefore, respectfully suggests that the

Court clearly define traditional navigable waters as

The Daniel Ball waters.

In addition, NAHB

suggests that the Court explain why Priest Lake is

or is not a navigable water of the United States or

remand that question to the lower courts.

Dated: April 18, 2022

THOMAS J. WARD*

JEFFREY B. AUGELLO

NATIONAL ASSOCIATION

OF HOME BUILDERS

OF THE U.S.

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8230

tward@nahb.org

* Counsel of Record

TABLE OF APPENDICES

Appendix A. Table 1 .............................................. A-1

Appendix B. Interim Guidance on the Rapanos

and Carabell Supreme Court Decision,

July 5, 2006 ........................................................ B-1

Appendix C. Waters of Idaho Regulated

Under Section 10 of the Rivers and Harbors

Act of 1899 .......................................................... C-1

Appendix A-1

WATER

TEST

Tidal Waters

Ebb and flow of tide.

The Daniel Ball Waters

or the “Navigable

Waters of the United

States”

1. Was or is used, or is susceptible of being used with reasonable improvements, as

a highway for commerce, over which trade and travel are or may be conducted in

the customary modes of trade and travel on water; and

2. Forms by itself, or by uniting with other waters, a continued highway over which

commerce was, is or may be carried on with other States or foreign countries.

Rivers and Harbors Act

Waters

Same as The Daniel Ball Waters.

Navigable in Fact

Waterbodies (for title)

Used or are susceptible of being used in their ordinary condition as highways for

commerce over which trade and travel are or may be conducted in the customary

modes of trade and travel on water.

Agencies’ Regulatory

Definition of “Waters of

the United States” or

the (a)(1) Waters

1. Waters, which are currently used, or were used in the past, or may be susceptible

to use in interstate or foreign commerce, including waters which are subject to

the ebb and flow of the tide.

2. Territorial seas.

Appendix B-1

From: Sudol, Mark F HQ02

Sent: Wednesday, July 05, 2006 10:25 AM

To: CDL-REG-All; CDL-REG-CHIEFS; CDL-REGMSC; CDL-REG-Ros

Cc: Barnes, Gerald W HQ02: Smith, Chip R HQDA:

Wood, Lance D HQ02; Stockdale, Earl H HQ02:

'Schmauder, Craig R Mr OGC'; Dunlop, George S

HQDA; Sherman, Rennie H HQ02; Cummings,

Ellen M HQ02

Subject: Interim Guidance on the Rapanos and

Carabell Supreme Court Decision

Everyone,

The Supreme Court handed down a decision on June

19, 2006, in the Rapanos and Carabell cases. That

decision addresses the scope of Clean Water Act

(CWA) jurisdiction over certain waters of the United

States, including wetlands. I appreciate the

difficulty you are facing in trying to keep an on-going

program functioning in the face of the present

uncertainty. Given the confusion created by the

differing opinions that the Supreme Court justices

filed in that case, it will take some time for the Corps

and the EPA to analyze and reach consensus on

what legal guidance is to be derived from the

decision. In the near future we intend to issue joint

EPA/Army guidance clarifying CWA jurisdiction in

light of the Rapanos/Carabell decision.

We anticipate that the Rapanos/Carabell decision

will lead the Corps and the EPA to make some

changes in how we describe and document the

justifications that underlie some of our CWA

jurisdictional determinations (JDs). In other words,

Appendix B-2

the tests that we cite and the facts that we document

in some of our JD administrative records will

probably change somewhat, to insure that our JDs

reflect the Supreme Court's most recent legal tests

for asserting CWA jurisdiction. We will try to send

you our advice in this regard as soon as possible and

in the very near future.

In the meantime, in order to allow the Corps and

EPA to prepare and issue substantive guidance, I

am recommending that, to the extent circumstances

allow, you delay making CWA jurisdictional

determinations for areas beyond the limits of the

traditional navigable waters (i.e., outside the

"Section 10" waters) for the next three weeks. Even

though you should delay making CWA jurisdictional

calls in areas outside the traditional navigable

waters for the next three weeks, that does not mean

that the processing and issuance of CWA permit

authorizations in those areas using general permits

and standard individual permits should be delayed,

as is further explained below.

***

Appendix B-3

***

Similarly, during the period until we issue

substantive guidance on how to implement the

Rapanos/Carabell decision, you should not refer any

new regulatory enforcement actions to the

Department of Justice other than those involving

illegal activities in or affecting traditionally

navigable (Section 10) waters, or violation of the

terms or conditions of Corps permits covering

activities in Section 10 waters. If illegal discharges

of dredged or fill material in other waters are

causing significant, immediate environmental harm

and would justify injunctive relief, notify CECC-L

(Martin Cohen) and we will determine an

appropriate response on a case by case basis.

Regarding the issuance of permit authorizations

during the period before we issue substantive

guidance on Rapanos/Carabell, all forms of Section

10 and CWA Section 404 permit authorizations for

activities proposed to take place in the traditional

navigable waters (i.e., the Section 10 waters) should

continue to be issued as before, since the

Rapanos/Carabell decision does not affect Section 10

of the Rivers and Harbors Act of 1899 at all, and does

not affect CWA jurisdiction over any category of

Section 10 waters. In waters other than the

traditional navigable (Section 10) waters, where a

permit applicant proposes to conduct an activity

involving the discharge of dredged or fill material

pursuant to any form of CWA general permit

authorization (e.g., NWP, regional general permit,

SPGP, etc.), the Corps will continue to authorize

those activities using applicable general permits,

Appendix B-4

recognizing that such a permit applicant has the

right to seek a modification of the terms and

conditions or such a general permit authorization at

a later time, as explained below.

Regarding applications for standard individual

permits under CWA Section 404 covering activities

involving the discharge of dredged or fill material

outside the limits of the traditional navigable

(Section 10) waters, as a general matter we expect

that those individual Section 404 permits will

continue to be issued as expeditiously as is

practicable, to meet the legitimate needs of permit

applicants, during the next few weeks while we are

preparing

substantive

"Rapanos/Carabell

guidance." The primary exception to that general

rule might be for any individual Section 404 permit

covering activities outside the traditional navigable

waters where permit issuance is feasible during the

next few weeks, but where special conditions of the

proffered permit would require the permittee to

provide compensatory mitigation, and where that

permittee might believe that some or all of his

activities are now not subject to regulation under

CWA Section 404 because of the Rapanos/Carabell

decision, and thus that the mitigation requirements

of the permit are excessive or unnecessary. In such

a circumstance the Corps should inform the permit

applicant that he or she has a number of options, as

follows: The

Appendix B-5

permit applicant can accept and sign the proffered

permit now, with its existing terms and conditions;

or the permit applicant can ask for a delay in the

issuance of the permit until the Corps District has

received substantive Rapanos/Carabell guidance

from Corps Headquarters, so that the amount of

required compensatory mitigation can be reevaluated (if appropriate) based on that new

guidance.

For Corps CWA Section 404 permit authorizations

made during the next few weeks for activities

outside the traditional navigable waters pursuant to

either a general permit or a standard individual

permits, where the permittee later concludes that

the terms or conditions of that permit authorization

are inappropriate in light of the Rapanos/Carabell

decision, that permittee can ask the Corps to modify

the terms or conditions of that permit to rectify the

matter subsequent to the issuance of the anticipated

EPA/Army substantive Rapanos/Carabell guidance.

Corps Headquarters POCs are Mark Sudol and Russ

Kaiser (Regulatory COP), Lance Wood (CCE), and,

for litigation and enforcement matters, Martin

Cohen (CCL).

***

Appendix C-1