Amicus Curiae Brief — Carlota Copper Co. v. Friends of Pinto Creek (No. 07-1524)

@ FILED

No. 07-1524 JUL 2 - 2008

In The

Supreme Court of the Anited States

SJ

CARLOTA COPPER COMPANY,

Petitioner,

Vv.

FRIENDS OF PINTO CREEK, ET AL.,

Respondents.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS, CALIFORNIA BUILDING

INDUSTRY ASSOCIATION, BUILDING INDUSTRY

LEGAL DEFENSE FOUNDATION, HOME

BUILDERS ASSOCIATION OF NORTHERN

CALIFORNIA, AS AMICI CURIAE IN SUPPORT

OF PETITIONER CARLOTA COPPER COMPANY

¢

DUANE J. DESIDERIO PAUL S. WEILAND

THE NATIONAL ASSOCIATION (Counsel of Record)

OF HOME BUILDERS JEREMY N. JUNGREIS

1201 15th Street, N.W. NOSSAMAN LLP

Washington, D.C. 20005 18101 Von Karman Avenue

(202) 266-8200 Suite 1800

Irvine, CA 92612

(949) 833-7800

Altuorneys for Amici Curiae

[Additional Counsel Listed On Inside Cover]

—_-—- ——-

—_

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

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;

;

‘

;

NiIcK CAMMAROTA

CALIFORNIA BUILDING

INDUSTRY ASSOCIATION

1215 K Street

Sacramento, CA 95814

(916) 443-7933

ANDY HENDERSON

BUILDING INDUSTRY LEGAL

DEFENSE FOUNDATION

1330 Valley Vista Drive

Diamond Bar, CA 91765

(909) 396-9993

PAUL CAMPOS

HOME BUILDERS ASSOCIATION

OF NORTHERN CALIFORNIA

200 Porter Drive, #200

P.O. Box 5160

San Ramon, CA 94583

(925) 820-7626

QUESTION PRESENTED

Whether 40 C.F.R. § 122.4(i) prohibits issuance of a

“new” discharge permit under the authority of the

Federal Water Pollution Control Act (“Clean Water

Act”), National Pollutant Discharge Elimination

System (“NPDES”), 33 U.S.C. § 1342, in water bodies

that do not meet all pertinent water quality stan-

dards—notwithstanding that the new source or

discharge is shown not to have an adverse effect on

existing water quality.

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TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE................. 1

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

P_MSG RIS RE Se Ca Ca OT 6

I. THE PETITION PRESENTS AN IMPOR-

II.

IIT.

TANT FEDERAL QUESTION UPON

WHICH THERE IS A SPLIT OF AU-

THE DECISION OF THE NINTH CIR-

CUIT BELOW IS INCORRECT...................

A. New Discharges That Do Not Degrade

Water Quality Do Not “Cause or Con-

tribute” to a Water Quality Violation ....

B. The Ninth Circuit Failed to Afford the

EPA the Appropriate Level of Defer-

THE PINTO CREEK DECISION CON-

TRAVENES PUBLIC POLICY....................

A. Pinto Creek Could Be Interpreted To

Require a Moratorium on Construction

in Impaired Watersheds..................00000

B. The Pinto Creek Decision Will Prevent

the Construction of Critical Infrastruc-

ture and Frustrate Smart Growth........

SP ccsitatuisdatencnpuhbitdihbipusndbicidovnnineivens

10

12

16

17

20

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TABLE OF AUTHORITIES

Page

CASES

Am. Wildlands v. Browner, 260 F.3d 1192 (10th

INA TIED 1c:1:i0 acciscrsndanigeldiohanideibieedineshalihbesliabsetdiubdldbbessonesees 19

Arkansas v. Oklahoma, 503 U.S. 91 (1992)....... passim

Baltimore Gas & Elec. Co. v. Natural Res. Def.

CRONE, Bee WI. BE CROP vsvcceccccesevescccccesecsccsesceses 16

Bowles v. Seminole Rock & Sand Co., 325 U.S.

a scale ecaiiiiibnini 16, 17

Chevron v. Natural Res. ie Council, 467 U.S.

TE a scien 3

City of Arcadia v. State Water Res. Control Bd.,

135 Cal. App. 4th 1392 (Cal. Ct. App. 2006).......... 12

Crutchfield v. State Water Control Bd., 612

S.E.2d 249 (Va. Ct. App. 2005) ................. eee passim

Divers’ Envtl. Conservation Org. v. State Water

Resources Control Bd., Cal. App. 4th 246

Ns I cin ic niall endiainebitetnieandasenniees 21

Envtl. Def. Ctr. v. EPA, 344 F.3d 832 (9th Cir.

I itiibialishetdladsihisie eiaiilnprtaesdeidiiipbcsninebeedanichininnbuanseies 22, 23

Friends of Pinto Creek v. EPA, 504 F.3d 1007

NG TIED vicisinstininseciicunenmesvetetineiiabionatianeanainin passim

In re Carlota Copper Company, 11 E.A.D. 692

TRESS ORR ARR Pos We coon os ee Ce 4

In re Cities of Annandale & Maple Lake, 731

Fe VEE GS GENEL, SIS D icici cceseccccccasosssnaséocesese passim

iv

TABLE OF AUTHORITIES —- Continued

In re Cities of Annandale and Maple Lake, 702

N.W.2d 768 (Minn. Ct. App. 2007)...............cceeeeeeeee

Or. Natural Desert Ass’n v. Dombeck, 172 F.3d

RE SI NE eteitintntnistcedansatansavionsinnndiniciioiidie 19

Sterra Club v. Meiburg, 296 F.3d 1021 (11th

IUk SHED bciitianstacnicbbn Dassrintananticelacinaidanidadindaniidaaedic Asien’ 19

Texas Indep. Producers & Royalty Owners

Ass’n v. EPA, 410 F.3d 964 (7th Cir. 2005)....... 21, 22

Thomas Jefferson Univ. v. Shalala, 512 U.S.

De CO ickcisnisitendintnsninsssnnessiniiaiaeintnbiiammaamma 16

STATUTES

BP as eI sinsictnvinncsicenivnintonscnsnniupsincenmmamasinaiiaaeaee 7

a Se Is icccicccncsnncncsonatsavinovtetetanumeimamlal 10

BP Ge Fikes sxdcesenscescnnessnccccnennccisiennieinbcimaiieaianiaal 7

III satipscsaisininscsnsenadcceicinecipimiatndyeesaiiiiiniina 10

i TI Oe I viiccchc.sesicicnccttenvscssnsisepesviognnbennntiessnmndliann 7

SI Oe I vincctosescceccsscessconadsocsaescsennebameieaalnn 10

SD Te OF CIID oscccsnsccscceccasicccnsicccsasentneeuelilin 10

ee ete ie IID niicinccainescovscanecsssenchesnenbeaeeeian 11

Be As Oe IE UF Phi ctescnescscccessssncnsncsianciiaseonaiila 11

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TABLE OF AUTHORITIES — Continued

Page

EE ne a ET 4

ED. .. sscncnsnsencnscoconesececesoniensnes 21

ER aD 19

Intermodal Surface Transportation Efficiency

Act of 1991 Pub. L. 102-240, § 1068, 105

aa a ecaiignaneacesonse 20

RULES

as sednssoneanasnenseniiin 10

a ccncumenambepeasoess 10

REGULATIONS

I 5... ssn cnccncccconcccessesccscesssece ll

Tea sc sscosessscsssacesesaccsintenenton 21

SE 6, 12

a eosnmussosanseesi passim

EE 13, 25

I ns ncncnscascosscnccecncocscsocsacbecs 13, 25

a ec pencindadwbnbodieeued 12

I cssonasuaties 11

64 Fed. Reg. 68,722 (Dec. 8, 1999) ............c.ccecccceceee0e. 21

9 V. Admin. Code § 25-31-50(C)(Q9) ......... 0... 14

Fla. Admin. Code Ann. r. 62-303.100 (2006)...... Pleas! P 18

vi

TABLE OF AUTHORITIES —- Continued

Page

OTHER AUTHORITIES

Arizona Department of Environmental Quality,

Draft Pinto Creek Site Specific Water Quality

Standard for Dissolved Copper (March 12,

re idninsnbnctssccsitntink shehitigiantiilensinsiniatbapbseheduliaiiieeens bid 4,18

California Regional Water Quality Control

Board, Santa Ana Region, RESOLUTION

NO. R8-2004-0037, Implementation Plan

Attachment (December 20, 2004) ......2.........c.ceceeeeee 20

EPA, Decentralized Wastewater Treatment

Systems, A Program Strategy (January 2005)....... 26

EPA, Letter to California State Water Resources

Control Board Regarding EPA Decision on

California’s 2006 303(d) Listings (June 28,

SESE Male aante Aenea PRON ODIO RES Ea al Sa 20

EPA, National Assessment Database, Assessment

Data for the State of California Year 2004

http://iaspub.epa.gov/waters10/w305b_report_

control.get_report?p_state=CA&p _cycle=.....7, 18, 19

EPA, National Pollutant Discharge Elimina-

tion System Storm Water Program Questions

and Answers (Best Management Practices)

7 | REESE REET Ut Roads HNN Nie PISS Or 21

EPA, National Water Quality Inventory: Report

to Congress, 2002 Reporting Cycle (October

STD iensisccitanncieigichaitinitleinespstes ag slesistidehiieds ieapldiiadiiiediledeiniipa 6, 18

EPA, State NPDES Program Authority, http:

/Iwww.epa.gov/npdes/images/State_NPDES_

SERRE TREATS RATT oe HELENE er OR OO 4

Vii

TABLE OF AUTHORITIES — Continued

EPA, The Clean Water and Drinking Water Gap

I i ces nheiscidenneumonees

EPA, Water Quality Trading Toolkit for Permit :

Se I I Tino winiidipniddanaittiicsienancitnteniereoverees

Maryland Dep’t of the Environment, Maps and

Water Resources Aid to Local Planning (2006)

http://www. mde.state.md.us/Water/HB1141/

I Ne, NII oon os ccsicincnccccesessccescccccscocsess

Nat’! Ass’n of Home Builders, Long-Term Trend

Housing Production: How Will We Get There

From Here? Long Term Forecast (June 3,

a sepeaiiintipesons

Oliver A. Houck, The Clean Water Act TMDL

Program: Law, Policy, and Implementation 3-

UTI III nos ibicanansghsadennaabinlecnintiathianedabanioossooes

Robert V. Percival et al., Environmental Regu-

lation: Law, Science, and Policy (4th ed.

SETI ie cihsittanchinaipudaabiunten hblhasnieinnidapinginiidniniiondiganvvesesmeceee

Stephanie Showalter, Nat'l] Sea Grant Law

Ctr., Pennsylvania’s Nutrient Trading Pro-

gram: Legal Issues and Challenges (2007).............

U.S. Census Bureau, U.S. Interim Projections

by Age, Sex, Race and Hispanic Origin, Table

2a (Mar. 18, 2004) http://www.census.gov/ipc/

I vicitinsinntticcinndapinndenitniatnirenscnases

U.S. Dep’t of Agriculture, Economic Research

Service, Major Uses of Land in the United

States, 2002 (May 2006), http://www.ers.usda.

UTI Ol a. cccccisescssinccccsesncsccnvescecenss sail

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INTEREST OF THE AMICI CURIAE'

The amici curiae are home builder associations

that are composed of member organizations and

individuals that construct single-family homes,

apartments, condominiums, and commercial and

industrial projects. The amici, or their members, are

involved in thousands of construction projects across

the nation that are in watersheds that do not meet all

water quality standards established under the Clean

Water Act (“CWA”). The lower court decision may

foreclose such construction projects, thereby harming

the amici and their members and reducing the supply

of new housing stock.

The amici are as follows:

The National Association of Home Builders

(“NAHB”) is a national trade association incorporated

in the State of Nevada. NAHB represents more than

235,000 builders and associate members organized

into approximately 850 affiliated state and local

associations in all 50 states, the District of Columbia,

and Puerto Rico. Its members include people and

firms that construct and supply single-family homes,

as well as apartment, condominium, commercial and

industrial builders, land developers and remodelers.

' The parties received timely notice of and consented to the

filing of this brief Letters of consent have been filed with the

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

in part, and no person or entity other tham amici curiae made

any monetary contribution to its preparation or submission.

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It is the voice of the American shelter industry.

Through its advocacy function, NAHB represents its

members in legal proceedings affecting the use and

development of their land. It is central to NAHB’s

organizational purpose to ensure that its members

can use their property to the fullest extent allowed by

law so that they may build and supply housing for all

people throughout the United States, regardless of

income level, race, or nationality.

NAHB frequently participates as a party litigant

and amicus curiae to safeguard the rights and inter-

ests of its members. NAHB was a petitioner in a CWA

case, NAHB v. Defenders of Wildlife, 551 U.S. ___, 127

S.Ct. 2518 (2007), and attached at Appendix A to this

brief is a list of cases in which NAHB has partici-

pated before this Court as amicus curiae or “of coun-

sel.”

The California Building Industry Association

(“CBIA”), a state affiliate of NAHB, is a statewide

trade association that represents approximately 6,300

members—including homebuilders, trade contractors,

architects, engineers, designers, suppliers, and other

industry professionals. CBLA Members design and

construct California’s housing. CBIA’s purpose is to

advocate on behalf of the interests of its members,

including, but not limited to, representation in regu-

latery matters and litigation affecting the ability of

its members to provide housing, office, industrial, and

commercial facilities for residents of California.

3

Building Industry Legal Defense Foundation

(“BILD”) is a non-profit and wholly-owned subsidiary

of the Building Industry Association of Southern

California (“BIA/SC”). BIA/SC is a non-profit trade

association representing more than 2,050 member

companies with more than 200,000 employees. The

mission of BIA/SC is to promote and protect the

building industry to ensure its members’ success in

providing homes for all Southern Californians.

The Home Builders Association of Northern

California (““HBANC”) advocates for public policies

and judicial decisions aimed at ensuring an adequate

supply of quality, affordable housing in the San

Francisco Bay Area with the goal of increasing home-

ownership and promoting a healthy, growing regional

economy.

SUMMARY OF ARGUMENT

When Congress does not direct specific regula-

tory action to address a difficult problem—such as

how to improve water quality in polluted rivers,

lakes, and streams—federal agencies, such as the

U.S. Environmental Protection Agency (“EPA”), must

necessarily formulate policy through the promulga-

tion and application of rules to carry out broad statu-

tory mandates. Chevron v. Naturul Res. Def. Council,

467 U.S. 837, 843 (1984). EPA was called upon to

apply a rule the agency had promulgated to address

this very water quality problem in the present case,

Friends of Pinto Creek v. EPA, 504 F.3d 1007 (9th Cir.

4

2007). Under the circumstances presented in the case

below, EPA granted the Carlota Mining Company a

permit under the National Pollution Discharge

Elimination System (““NPDES”)’ to discharge effluent

to a receiving water, Pinto Creek, that has ambient

concentrations of dissolved copper in excess of state

water quality standards.’ Relying upon this Court's

decision in Arkansas v. Oklahoma, 503 U.S. 91

(1992), EPA reasonably interpreted its own regula-

tion, 40 C.F.R. § 122.4(i), to authorize “new” dis-

charges in watersheds that do not comply with water

quality standards—provided such discharges do not

degrade overall water quality. In re Carlota Copper

Company, 11 E.A.D. 692, 695 (EAB 2004). Such a

result makes sense. A discharger cannot “cause or

contribute” to a water quality violation where the

* Dischargers under the CWA NPDES Program are required

to obtain a permit from either EPA or, in states where NPDES

authority has been delegated, the designated state permitting

authority. 33 U.S.C. § 1342(a)(1), (b). Forty-five states currently

have delegated NPDES programs. EPA, State NPDES Program

Authority, http://www.epa.gov/npdes/images/State_NPDES_Prog_

Auth. pdf.

* Pinto Creek is “impaired,” or in excess of applicable

standards, for copper because, notwithstanding implementation

by EPA of a total maximum daily load (“TMDL”) for Pinto Creek,

it is physically impossible to meet the current water quality

standards for dissolved copper in Pinto Creek. See Arizona

Department of Environmental Quality, Draft Pinto Creek Site

Specific Water Quality Standard for Dissolved Copper 2-3

(March 12, 2007) (“Arizona DEQ Site Specific Standard”). The

problem is that current standards for copper in Pinto Creek are

set lower than natural background levels. Jd.

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discharge is not shown to have an adverse effect on

water quality. EPA acted within its discretion when it

rejected the argument that a permitting authority

must demonstrate restoration to water quality stan-

dards for an entire water body prior to issuance of a

single new discharge permit. EPA correctly recog-

nized that following the logic utilized by the United

States Court of Appeals for the Ninth Circuit (“Ninth

Circuit”) in the case below would perpetrate the very

outcome this Court’s decision in Arkansas sought to

avoid, “adoption of a rigid approach that might frus-

trate the construction of new facilities that would

improve existing conditions.” Jn re Carlota, 11 E.A.D.

at 695 (citing Arkansas v. Oklahoma, 503 U.S. 91, 108

(1992)).

,

.

In light of the tension between the lower court’s

decision in Pinto Creek and Arkansas, and because of

the direct conflict between the lower court’s decision

and the decisions of the Supreme Court of Minnesota

in In re Cities of Annandale & Maple Lake, 731

N.W.2d 502 (Minn. 2007) (“Annandale”), and the

Virginia Court of Appeals in Crutchfield v. State

Water Control Bd., 612 S.E.2d 249 (Va. Ct. App.

2005),* amici curiae request that this Court grant the

Petition in order to resolve the following issue:

* The decision of the Virginia Court of Appeals in Crutch-

field is “the decision of a court of last resort” for purposes of Sup.

Ct. R. 10(a). The Virginia Supreme Court dismissed the appeal

from the intermediate appellate court without opinion. Crutch.-

field v. State Water Control Bd., No. 051148 (Va. Sept. 27, 2005).

eres oS ee ef. eS TS ee ee ee) ee eS

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whether issuance of a NPDES permit to a new source

or discharger in an “impaired” watershed can be said,

in every case, to “cause or contribute” to violations of

water quality standards so as to invoke the 40 C.F.R.

§ 122.4 prohibition on NPDES permit issuance. The

lower court, without any citation to pertinent legal

authority, answered the question in the affirmative.

The weight of authority, including the decision of the

Supreme Court of Minnesota in Annandale, the

decision of the Virginia Court of Appeals in Crutch-

field, and the decision of the EPA Environmental

Appeals Board (“EAB”) in the present case, answers

the question, correctly, in the negative.

ARGUMENT

I.

THE PETITION PRESENTS AN IMPORTANT

FEDERAL QUESTION UPON WHICH THERE

IS ASPLIT OF AUTHORITY

Granting the Petition will allow the Court to

resolve a matter of great national significance—

whether EPA and the 45 states with delegated

NPDES authority under the CWA are required to

prohibit all “new” discharges to each and every water

body designated as impaired under the CWA until the

water body meets all water quality standards.’ The

* The number of “impaired” water bodies nationwide is

approximately forty-five percent of rivers and streams and forty-

seven percent of lakes, ponds and reservoirs See EPA, National

(Continued on following page)

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direct split of authority on this precise question

invokes this Court’s jurisdiction to grant certiorari

under Sup. Ct.-R. 10(a).

The dispute in this case centers on 40 C.F.R.

§ 122.4(i), EPA’s regulatory interpretation of sections

301, 303, and 402 of the CWA. See 33 U.S.C. §§ 1311,

1313, 1342 (requiring NPDES permits to comply with

water quality standards developed by states). Section

122.4(i) prohibits the issuance of “permits” for any

new discharge that will “cause or contribute to the

violation of water quality standards.” The term

“cause or contribute” is ambiguous. EPA has inter-

preted that term not to apply where additional pol-

lutants are “offset” by reductions elsewhere in the

watershed. See infra note 9. Citing no authority

other than the CWA’s aspirational goals contained in

33 U.S.C. § 1251, the lower court overruled EPA’s

Water Quality Inventory: Report to Congress, 2002 Reporting

Cycle at ES-2 (October 2007) (“2002 Seccion 305(b) Report”).

However, the percentage of impaired ~ eter bodies in some

states, such as California, is far higher = llustrating the pro-

found impact that Pinto Creek could have on growth and devel-

opment. See, eg., EPA, National Assessment Database,

Assessment Data for the State of California Year 2004,

http:/Aaspub.epa.gov/waters 10/w305b_report_control.get_report?p_

state=CA&p_cycle=. (hereinafter “2004 California Assessment

Data”) (indicating impairment in 92% of assessed rivers,

streams, lakes ponds and reservoirs, and 97% of assessed bays

and estuaries in the State of California).

* Annandale, 731 N.W.2d at 522 (“[Wle conclude that 40

C.F_R. § 122.4(i) is unclear and susceptible to different reason-

able interpretations ”).

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interpretation of section 122.4(i). It then construed

section 122.4(i) to mean that no new NPDES permits

may be issued to a “new source” or a “new discharger”

to an impaired water body until such time as that

water body ceases to be impaired. See Pinto Creek,

504 F.3d at 1014 (“The error of both the EPA and

Carlota is that the objective of [40 C.F.R. § 122.4(i)] is

not simply to show a lessening of pollution, but to

show how the water quality standard will be met if

Carlota is allowed to discharge pollutants into the

impaired waters”). In so holding, the lower court

placed a de facto ban on issuance of new permits

across a significant proportion of the western United

States. See Jn re Carlota, 11 E.A.D. at 761-63 (“Sim-

ply put, [plaintiffs] propound a categorical ban on

new sources and new dischargers into impaired water

bodies”).

The Minnesota Supreme Court interpreted the

“cause or contribute” language of section 122.4(i) in

the same manner as EPA and in direct conflict with

the lower court. The Annandale court concluded that

the CWA, as interpreted by this Court in Arkansas,

503 U.S. 91 (1992), and by the EAB below, does not

require a categorical ban on discharges to impaired

waters. Annandale, 731 N.W.2d at 520-21, 524. The

court held that determining which discharges “cause

or contribute” to violations of water quality standards

can best be accomplished pursuant to a case specific

factual inquiry—an inquiry best suited to the “scien-

tific and technical” expertise of the state permitting

authority. Jd. at 524-26. Accordingly, the Minnesota

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Supreme Court held that a NPDES permit could

appropriately be issued in an impaired waterbody—

provided the permitting authority determined, upon

application of its specialized expertise and skill, that

the new discharge would not harm water quality. Jd.

The lower court decision is binding within the

jurisdiction of that court, and it mandates an “all or

nothing” interpretation of section 122.4(i). Outside

the Ninth Circuit, regulators must choose between

Pinto Creek and the flexible approach preferred by

EPA and the courts in Annandale and Crutchfield.

Unfortunately, watersheds do not obey political

boundaries. And, as Arkansas illustrates, consistency

in the interpretation of NPDES regulations across

states is critical to preventing inter-state and inter-

jurisdictional disputes and litigation. Additionally, in

light of uncertainty surrounding section 122.4(i) after

Pinto Creek, important wastewater infrastructure

improvement projects and watershed trading pro-

grams—programs designed to improve water qual-

ity—are on hold and are likely to remain so until the

uncertainty injected by Pinto Creek is removed. See,

e.g., Stephanie Showalter, Nat'l Sea Grant Law Ctr.,

Pennsylvania’s Nutrient Trading Program: Legal

Issues and Challenges 11 (2007) (“Legal minds are

disagreeing ... on what the phrase ‘cause or contrib-

ute’ means, which makes it impossible to predict

whether water quality trading programs will be found

to be in compliance with the terms of the CWA and

EPA regulations.”).

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The lower court decision merits review both

because of the presence of a split of authority, see

Sup. Ct. R. 10(a), and because it raises important

issues of federal law—including the need for uniform-

ity—that should be settled by this court. Jd. at 10(c).

II.

THE DECISION OF THE NINTH CIRCUIT

BELOW IS INCORRECT

Congress enacted the CWA “to restore and

maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

As the first step towards reaching this goal, the CWA

required states to develop water quality standards for

all water bodies within each state’s borders. 33 U.S.C.

§ 1313(a). Water quality standards must contain

three components: (1) one or more “designated uses”

to be protected and maintained for each waterbody

segment; (2) water quality criteria specify y the

amounts of various pollutants that the water may

contain without impairing designated uses; and

(3) an antidegradation provision. See 33 U.S.C.

§ 1313(c)(2)A).

In order to ensure that designated uses

established by the states are met, the CWA prohibits

the “discharge” of any poilutant, into “navigable

waters” except in compliance with the CWA’s

provisions. See 33 U.S.C. §1311(a). Thus, any

“discharge” of pollutants, which the EPA has

interpreted to include storm water runoff from

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construction activities on sites greater than one acre,

see 40 C.F.R. § 122.26(b)(15), must first be authorized

pursuant to the NPDES Program. 33 U.S.C. § 1342.

NPDES permits mandate implementation of

technology based effluent limitations, 33 U.S.C.

§ 1311(b). New source performance standards estab-

lished under section 306 of the CWA, 33 U.S.C.

§ 1316, apply to certain classifications of “new” dis-

charges and may be far more stringent than the

technology standards applicable to existing discharg-

ers.

States are required to periodically assess

whether water quality standards are being met in the

waters -within their jurisdiction. See 33 U.S.C.

§§ 1313(d)(1)(a), 1315(b). Once assessed, the permit-

ting authority is required to “list” any waterbody

segments that are not anticipated to attain water

quality standards through the use of technological

controls alone. 33 U.S.C. § 1313(d)(1)(a) (hereinafter

“303(d) list”). Once a state places an “impaired” water

on the state’s 303(d) list, it is required to develop a

TMDL for that segment. 33 U.S.C. § 1313(d)(1(C). A

TMDL sets forth the total amount of point and non-

point sources of pollution that a water quality limited

segment can assimilate without violating water

quality standards. 40 C.F.R. § 130.2(1).

12

A. New Discharges That Do Not Degrade

Water Quality Do Not “Cause or Contrib-

ute” to a Water Quality Violation

Pinto Creek, Annandale, and Crutchfield, all

involved proposed “new” discharges to “impaired”

waters, and all turned on the meaning of the same

federal regulation—40 C.F-R. § 122.4(i). Section 122.4

catalogs the circumstances (and exceptions) where

NPDES permit issuance is prohibited, and the section

applies whether EPA or a state is the NPDES per-

mitting authority. See 40 C.F.R. § 123.25. The prohi-

bition of section 122.4(i) is triggered if the

permitting authority finds that a new discharge will

“cause or contribute” to violations of water quality

standards. Upon such a finding, the permitting

authority may only issue a NPDES permit upon

determining, before the close of the public comment

period, that: (1) a TMDL has been developed for the

impaired segment; (2) there is an adequate pollutant

load allocation built into the TMDL for the proposed

new source/discharger: (3) all “existing” permitted

point sources “are subject to compliance schedvles

designed to bring the segment into compliance with

applicable water quality standards.” 40 C.FR.

* In many watersheds finding additional load allocations

may be impossible. See, e.g., City of Arcadia v. State Water Res.

Control Bd., 135 Cal. App. 4th 1392 (Cal. Ct. App. 2006) (uphold-

ing TMDL for “trash” with a waste load allocation of “zero” in

the Los Angeles River).

13

§ 122.4(i)(1), (2).° The Annandale and Crutchfield

decisions never addressed the narrow TMDL “excep-

tion” of section 122.4(i)(1), (2) because, unlike the

scenario in Pinto Creek, neither the State of Minne-

sota, nor the Commonwealth of Virginia, had yet

prepared TMDLs for the 303(d) listed waters at issue.

Thus, both the Annandale and Crutchfield courts

squarely faced the issue of concern to amici—whether

every discharge to an “impaired” water body is irre-

buttably presumed to “cause or contribute” to viola-

tions of water quality standards.

In Annandale, the proposed new discharger was

a municipal wastewater treatment facility, which

would allow the Cities of Annandale and Maple Lake

to serve growing populations with superior quality

wastewater treatment. Annandale, 731 N.W.2d at

524. The new discharge would add loadings of phos-

phorous to an unimpaired river that was tributary to

the impaired Lake Pepin. The new discharge would

be “offset” by significant reductions in phosphorous

loadings from a nearby wastewater treatment facility.

Id. The intermediate state appellate court enjoined

the permit because it found that the discharge, unlike

the discharge at issue in Arkansas, would have

a “measurable impact” in causing phosphorous

* As noted by Petitioner in its Brief at Pages 25-27, the

Ninth Circuit appears to read-in additional requirements to

Section 122.4(i2) that are absent from the pertinent regulatory

language, and which make compliance with this “exception” to a

“categorical ban” all but impossible.

14

impairment downstream. Jn re Cities of Annandale

and Maple Lake, 702 N.W.2d 768, 774-76 (Minn. Ct.

App. 2007). The Minnesota Supreme Court, relying

on the EAB decision in the case sub judice and Ar-

kansas, reversed. The court held that the new dis-

charge was permissible because the state permitting

agency was reasonably entitled to conclude that a

discharge subject to mandatory offsets does not

“cause or contribute” to water quality violations.

Annandale, 731 N.W.2d at 516-22. Deference to the

permitting authority's expertise in water quality

matters was the deciding factor. Id. at 524.

The Virginia Court of Appeals was faced with a

similar scenario in Crutchfield, 612 S.E.2d at 255. A

plaintiff challenged the issuance of a NPDES permit

alleging that Virginia’s equivalent of section 122.4(i),

9 V. Admin. Code § 25-31-50(C)(9), prohibits new

discharges into 303(d) listed waters. The Crutchfield

court rejected the challenge because it concluded the

levels of the pollutant in the discharge would not

worsen dissolved -oxygen levels in the receiving

stream (which was “impaired” for low dissolved

oxygen). The court deferred to the state permitting

authority’s determination that the discharge—though

“new,” of a significant volume (10 million gallons/

day), and into a 303(d) listed water body, would

nevertheless result in an improvement in water

quality. /d. at 255. Again, agency deference was the

deciding factor.

The lower court disagreed with these state court

decisions. Ignoring the question of agency deference,

ee ee ee a a ee?

15

the court effectively heié “hat eack and every new

discharge to an impaired weterbody, per se, causes or

contributes to violations of water quality standards—

whether the discharge is toxic, emtirely bemgn, or

offset by reductions im other permits. As the Minne-

sota Supreme Cowrt recogmized in Annandale, 731

N.W.2d at 520, such a broad interpretation of section

122.4(i)’s prohibitive effect is imeonsistemt with this

Court’s guidance that reviewing courts eschew in-

flexible interpretations of the CWA that “might

frustrate the construction of new facilities that would

improve existing conditions.” Arkansas, 503 U.S. at

107-98.

The proposed permit at issue in Pinto Creek only

authorized discharges during 10-year or 100-year

flood scenarios when dilution and pollutant trans-

port/dispersion would be at their peak. In re Carlota,

11 E.A.D. at 743-45. Nevertheless, EPA still required

Carlota, as a condition of permit issuance, to clean up

a nearby abandoned mine that was known to be a

significant source of copper loading into the same

stream segment. Thus, the permit would result in a

net improvement in water quality. To the extent that

Carlota’s proposed mine would contribute any poilut-

ant loadings to Pinto Creek, they would be extremely

infrequent, highly diluted, and rapidly transported

downstream. See id. at 769-70. Under such circum-

stances, it was net unreasonable for EPA to deter-

mine that the proposed discharge, as offset, would not

cause or contribute to violations of water quality

standards.

16

B. The Ninth Circuit Failed to Afford the EPA

the Appropriate Level of Deference :

. As previously observed, section 122.4(i) is rea-

sonably subject to differmg interpretations. Annan-

dale, 731 N.W.2d at 522. The Ninth Circuit’s “all or

nothing” approach to attainment of water quality

standards improperly removes the decision of

whether a particular discharge causes or contributes

to violations of water quality standards from permit-

ting authorities, who are most qualified to perform

such site specific and highly technica! evaluations. Cf.

Bal.imore Gas & Elec. Co. v. Natural Res. Def. Coun-

cil, 462 U.S. 87, 103 (1983) (noting that agency defer-

ence is particularly appropriate where the matter

involves scientific or technical matters within the

agency's expertise).

a:

The lower court failed to address the appropriate

standard of review. Had it applied the proper stan-

dard of review—which requires that deference be

accorded to an agency’s interpretation of its own

regulation unless the “plain language” dictates oth-

erwise—it would have concluded that EPA's interpre-

tation merits deference.” See Thomas Jefferson Univ.

v. Shalala, 512 U.S. 504, 512 (1994) (quoting Bowles

* EPA's interpretation of Section 122.4(i) herein is consis-

tent with its national policy for reducing pollution in impaired

waters. See, e.g., EPA, Water Quality Trading Toolkit for Permit

Writers 22, 24 (Aug. 2007) (“EPA interprets 40 C.F.R. § 122.4(i)

to allow for a new source or new dischar,'er to compensate its

entire increased load through trading”).

a a

EEE ————— ee

17

v. Seminole Rock & Sand Co., 325 U.S. 410, 414

(1945)) (“[T)he agency’s interpretation of its own

regulation must be given ‘controlling weight unless it

is plainly erroneous or inconsistent with the regula-

tion.’”).

Section 122.4(i) requires a careful balancing of

competing policies and interests across 45 states and

10 separate EPA regions. Thus, EPA must be able to

draw upon its expertise and specialized knowledge

to make permitting decisions. See Annandale, 731

N-W.2d at 523. Consistent with Arkansas, where this

Court noted that Congress intended to grant EPA

significant discretion in the oversight and issuance of

NPDES permits, 503 U.S. at 106-07, the lower court

was required to defer to EPA’s interpretation of its

owm regulation.

The lower court’s decision to avoid the standard

of review question altogether—declining to even

explain why deference was inappropriate—was

improper and it provides a basis for this Court's

review.

III.

THE PINTO CREEK DECISION CONTRAVENES

PUBLIC POLICY

The lower court’s decision is contrary to law and

will ultimately harm water quality and undermine

other societal goals. In particular, the decision will

directly interfere with the ability of amici to build

18

and supply housing for the growing population of the

United States.

The NPDES program has been a great swecess

story in many ways: See, e.g., Oliver A. Howek, The

Clean Water Act TMDL Program: Law, Poiicy, amd

Implementation 3-4 (2d ed. 2002). The volume of

pollutant loadings from traditional “point sources”

has dropped considerably since enactment of the CWA

in 1972—to the point where point scurces are no

longer the primary source of impairment in many

watersheds. See Robert V. Percival et al., Environ-

mental Regulation: Law, Science, and Policy 571-72,

632-33 (4th ed. 2003). However, for a variety of rea-

sons, many U.S. water bodies still do not meet all

designated water quality standards. See, e.g., 2002

Section 305(b) Report, supra, at 9, 11. Reasons for

continued impairment are complex amd can range

from water quality standards that were cautiously set

at inappropriately low levels’ to continued “non point

source” loading from “natural” sources (e.g., minerals

in soil, wildlife, wildfires),"' air deposition of pollut-

ants, and runoff from agricultural and silvicultural

activities. See, e.g., Fla. Admin. Code Ann. r. 62-

303.100 (2006) (“[MJany water bodies naturally do not

meet one or more established water quality -riteria at

all times, even though they meet their designated

" E.g., Arizona DEQ Site Specific Standard, supra, at 2-3.

‘' See 2004 California Assessment Data, supra (“natural

sources” cited as the most frequent source of impairment for

Bays and Estuaries and Lakes, Ponds and Reservoirs).

19

use.”). Whatever the cause of impairment, the regula-

tory result is the same—the state lists the water on

the 303(d) list, prioritizes the effort, and eventually

develops a TMDL.

The TMDL development process is difficult

where the source of impairment is something other

than permitted point sources—the scenario in the

majority of TMDL development efforts in recent

times. Cf. 2004 California Assessment Data, supra

(point source discharges not in top ten causes of

impairment for most California water bodies). And

most of the primary sources of non-point source

loading are outside the control of permitting authori-

ties under the CWA. See Am. Wildlands v. Browner,

260 F.3d 1192, 1197 (10th Cir. 2001) (“Congress has

chosen not to give the EPA the authority to regulate

nonpoint source pollution”); see also 33 U.S.C.

§ 1362(14) (exempting regulation of agricultural

return flows and stormwater under NPDES pro-

gram). Because only limited pollutant loadings come

from permitted point sources, achieving attainment of

all water quality standards is not possible in many

watersheds. It is not, as implied by the lower court,

as simple as issuing compliance schedules to all

potential sources of pollutant loadings because many

of these sources are not subject to the NPDES pro-

gram. See Sierra Club v. Meiburg, 296 F.3d 1021,

1026 (llth Cir. 20902); Or Natural Desert Ass’n v.

Dombeck, 172 F.3d: 1092, 1097 (9th Cir. 1998) (“{TJhe

Act provides no direct mechanism to control nonpoint

20

source pollution”). Given the foregoing, the prohibi-

tion on permit issuance prior to demonstration of

water quality standard attainment announced in

Pinto Creek may be anticipated, as explained more

fully below, to have a significant adverse effect on

Western watersheds and the communities that rely

on them.

A. Pinto Creek Could Be Interpreted To Re-

quire a Moratorium on Construction in

Impaired Watersheds

The regulated community—including amici and

their members—should be able to comply with the

CWA in a way that is simple and efficient—as Con-

gress intended. Sce, e.g., Intermodal Surface Trans-

portation Efficiency Act of 1991, Pub. L. 102-240,

§ 1068, 105 Stat. 2007 (1991) (requiring development

of general permit regulations to govern stormwater

from construction activities and other industrial

processes). Long and drawn out permitting processes

can render an otherwise meritorious land develop-

ment project economically infeasible. Pinto Creek’s

requirement to develop and implement a TMDL with

compliance schedules, a process that can take twenty

years or more to complete,” prior to turning dirt in an

" See, e.g., EPA, Letter to California State Water Resources

Control Board Regarding EPA Decision on California’s 2006

303(d) Listings (June 28, 2007) (TMDLs to be developed within 13

years of 303(d) listing); California Regional Water Quality Control

Board, Santa Ana Region, RESOLUTION NO. R8-2004-0037,

(Continued on following page)

21

impaired watershed, would be catastrophic to the

construction industry, local communities and permit-

ting authorities alike.

Because construction activities in excess of one

acre are administratively classified by EPA as “indus-

trial” stormwater activities,” most land developments

are now subject to NPDES construction general

permits (CGP)" and required to comply with water

quality standards” through the implementation of

best management practices contained in stormwater

pollution prevention plans (“SWPPP”). Texas Indep.

Producers & Royalty Owners Ass’n v. EPA, 410 F.3d

964 (7th Cir. 2005).

Amici curiae are concerned that, taken to its

logical extreme, the Pinto Creek decision—which

itself arose out of EPA’s regulation of a “new source”

of industrial stormwater—could be read to prohibit

Implementation Plan Attachment 2-20 (Dec. 20, 2004) (demon-

stration of compliance with water quality standards anticipated

16 years after completion of TMDL).

" See 64 Fed. Reg. 68,722 (Dec. 8, 1999); 40 C.FR.

§ 122.26(b)(15).

‘ See 40 C.F-R. § 122.28.

'? See 33 U.S.C. § 1342(pX3\A). EPA has determined that

permitting authorities may satisfy the requirement to comply

with water quality standards through the implementation of

best management practices. See EPA, National Pollutant

Discharge Elimination System Storm Water Program Questions

and Answers (Best Management Practices) 8 (Jan. 21, 2004);

Divers’ Envtil. Conservation Org. v. State Water Resources

Control Bd., Cal. App. 4th 246, 257 (Cal. Ct. App. 2006).

22

land developers from obtaining coverage under a CGP

or other NPDES permit, until nearby water bodies

demonstrate attainment of all water quality stan-

dards. Though the process for seeking coverage under

an existing general permit, via the filing of a notice of

intent (“NOI”) and preparation of a SWPPP, is admit-

tedly very different from the individual NPDES

permitting action at issue here, the Ninth Circuit has

ruled, in Envitl. Defense Ctr. v. EPA, 344 F.3d 832 (9th

Cir. 2003) that an NOI is the functional equivalent of

a permit for certain purposes under the CWA storm-

water regulations. Thus, there is real risk to amici

that courts will deem NOJIs filed prior to commencing

construction to be the equivalent of a “new permit”

issuance, the triggering event for 40 C.F.R. § 122.4(i),

and forbid construction even where the construction

project will have no impact on water quality after

complying with the CGP.

For the rule announced in Pinto Creek to apply to

land developmert projects, the development would

also have to be deemed a “new source” or a “new

discharger.” Putting aside the question of whether

construction site runoff is ever properly characterized

as a “point source” discharge in the absence of chan-

nelization of runoff that empties to a jurisdictional

waterbody, activities that operate under existing

“

CGPs are arguably not “new sources” or “new

'* Contra Texas Indep. Producers, 410 F.3d at 978 (NOIs are

not “functional equivalent” of “permits”).

23

dischargers” for purposes of 40 C.F.R. § 122.4(i). This

is because most CGPs were previously issued and

already authorize the types of discharges covered by

the CGP. NOIs filed under a general permit, on the

other hand, are “new.” Thus, to the extent that courts

follow Pinto Creek and Envtl. Defense Ctr., there is

real risk that construction sites in excess of one acre

will be deemed “new sources” or “new dischargers”

and precluded from operating under the CGP across

entire watersheds.

B. The Pinto Creek Decision Will Prevent the

Construction of Critical Infrastructure and

Frustrate Smart Growth

To the extent that Pinto Creek is extended to

proscribe developers from obtaining authorization to

develop their properties, amici will be unable to pro-

vide critical housing and housing infrastructure to

the Nation’s burgeoning population. The U.S. Census

Bureau estimates that the U.S. population will in-

crease by almost 50% between 2000 and 2050. U.S.

Census Bureau, U.S. Interim Projections by Age, Sex,

Race and Hispanic Origin Table 2a (Mar. 18, 2004),

http:/Awww.census.gov/ipc/www/usinterimproj/aa. Based

on past trends most of this growing population will

24

live in urban and suburban areas of the U.S."’—the

areas where impairment of water quality standards is

also the most likely to occur. See, e.g., Maryland Dep’t

of the Environment, Maps and Water Resources Aid to

Local Planning (2006), http://www.mde.state.md.us/

Water/HB1141/Water_Quality_Maps.asp (all of Bal-

timore City and most of Baltimore County impaired

for nutrients).

To accommodate this growth, amici anticipate

the need to construct 17-19 million new housing units

in the United States over the next 10 years. Nat'l

Ass’n of Home Builders, Long-Term Trend Housing

Production: How Will We Get There From Here? Long

Term Forecast (June 3, 2008). The question after

Pinto Creek is whether 40 C.F_R. § 122.4(i) will be

interpreted to preclude the construction needed to

support the housing and utility needs of this burgeon-

ing population.

New housing units must have adequate waste-

water infrastructure to support them. However, as

the Annandale case illustrates, communities through-

out the Nation are experiencing rapid growth while

" See, e.g., U.S. Dep't of Agriculture, Economic Research

Service, Major Uses of Land in the United States, 2002, EIB-14,

at 30 (May 2006), http://www.ers.usda gov/publications/eib14/

(“Urban land area has quadrupled from roughly 15 million acres

in 1945 to an estimated 60 million acres in 2002. The Census

Bureau reports that the U.S. population nearly doubled over

this same period. Thus, urban land area has increased at about

twice the rate of population growth.”).

25

using outdated wastewater treatment facilities

(“WT¥Fs”) operating at or near capacity. 731 N.W.2d at

524. These WTFs will need to be replaced or ex-

panded in the near future just to accommodate exist-

ing population levels. See EPA, The Clean Water and

Drinking Water Gap Analysis 14-15 (2002). The lower

court’s disapproval of new NPDES permits in the

absence of demonstrated attainment of water quality

standards, leaves communities that are looking to

service future growth with few environmentally

beneficial alternatives.

One alternative, which would presumably meet

future needs in some cases, but which would not

improve water quality, would be for an existing WTF

to expand its capacity in place. An existing plant

would generally not be required to meet the stringent

requirements of new source performance standards,

and permitting authorities would have reduced

leverage to seek offsets as a condition of permit

issuance—to the extent that offset programs are even

viable after Pinto Creek.

Another second alternative would be to attempt

to wait for the development of a TMDL and then try

to comply with Pinto Creek’s highly restrictive inter-

pretation of 40 C.F.R. § 122.4(i)(1), (2). However, the

degree of load reductions required to demonstrate

attainment of water quality standards, combined

with the likelihood of extensive delay and Pinto

Creek’s requirement to subject non-point sources of

26

pollution to “compliance schedules,” would essen-

tially preclude this option in all but the rarest of

cases.

Finally, local governments could look to the use of

septic tanks or pipelines that transport waste to non-

impaired watersheds to accommodate growth. How-

ever, each of these options would impose additional

and unnecessary costs on builders and on local com-

munities without improving water quality. See, e.g.,

EPA, Decentralized Wastewater Treatment Systems, A

Program Strategy 2-3 (January 2005) (discussing

systemic environmental concerns associated with

septic tank usage).

Because urbanized areas are more likely to be

“impaired” for at least one pollutant, Pinto Creek

creates further incentive for developers to prefer

greenfield developments over “infill” projects within

existing urbanized regions. An environmentally

proactive developer, of which there are many, might

prefer to build closer to city centers—avoiding grad-

ing and clearing of currently undisturbed lands.

However, Pinto Creek will frustrate this option by

making it more difficult (or impossible) for a builder

to obtain authorization to construct under a NPDES

Stormwater permit and by frustrating expansion of

* As pointed out by Petitioner at page 26, and as discussed

at pp. 15-16 supra, permitting authorities do not have authority

to impose NPDES compliance schedules on non-point sources of

pollution.

27

wastewater treatment capacity in 303(d) listed wa-

tersheds.

CONCLUSION

The decision of the lower court does not serve the

best interests of anyone. Both regulated entities and

the environment lose where administrative rules are

applied so inflexibly that important societal goals,

such as construction of quality housing and enhanced

wastewater treatment, are precluded for little or no

environmental benefit.

This Court should accept certiorari in this case in

order to clarify that CWA permitting authorities have

the expertise and discretion to make reasoned judg-

ments about whether a particular new discharge will

cause or contribute to violations of water quality

standards. The de facto moratorium announced in

Pinto Creek is inconsistent with the CWA and Arkan-

sas, and it should be overruled.

Dated: June 30, 2008

Respectfully submitted,

DUANE J. DESIDERIO

THE NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8200

NICK CAMMAROTA

CALIFORNIA BUILDING

INDUSTRY ASSOCIATION

1215 K Street

Sacramento, CA 95814

(916) 443-7933

ANDY HENDERSON

BUILDING INDUSTRY LEGAL

DEFENSE FOUNDATION

1330 Valley Vista Drive

Diamond Bar, CA 91765

(909) 396-9993

28

PAUL S. WEILAND

(Counsel of Record)

JEREMY N. JUNGREIS

NOSSAMAN LLP

18101 Von Karman Avenue

Suite 1800

Irvine, CA 92612

(949) 833-7800

Attorneys for Amici Curiae

PAUL CAMPOS

HOME BUILDERS ASSOCIATION

OF NORTHERN CALIFORNIA

200 Porter Drive, #200

P.O. Box 5160

San Ramon, CA 94583

(925) 820-7626

App. 1

APPENDIX A

Cases in which NAHB has appeared as an

amicus curiae or “of counsel” before this Court in-

clude:

Agins v. City of Tiburon, 447 U.S. 255 (1980); San

Diego Gas and Elec. Co. v. City of San Diego, 450 U.S.

621 (1981); Williamson County Reg’l Planning

Comm’n v. Hamilton Bank, 473 U.S. 172 (1985);

MacDorald, Sommer & Frates v. Yolo County, 477

U.S. 340 (1986); First English Evangelical Lutheran

Church v. Los Angeles County, 482 U.S. 304 (1987);

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987);

Pennell v. City of San Jose, 485 U.S. 1 (1988); Yee v.

City of Escondido, 503 U.S. 519 (1992); Lucas v. S.C.

Coastal Council, 505 U.S. 1003 (1992); Dolan v. City

of Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

Chapter of Cmtys. for a Greater Or., 515 U.S. 687

(1995); Suitum v. Tahoe Reg’l Planning Agency, 520

U.S. 725 (1997); City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999); Solid Waste

Agency of N. Cook County v. U.S. Army Corps of

Eng’rs, 531 U.S. 159 (2001); Palazzolo v. Rhode Is-

land, 533 U.S. 606 (2001); Franconia Assocs. v. United

States, 536 U.S. 129 (2002); Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’] Planning Agency, 535 U.S.

302 (2002); Borden Ranch P’ship v. U.S. Army Corps

of Eng’rs, 537 U.S. 99 (2002); City of Cuyahoga Falls

v. Buckeye Cmty. Hope Found., 538 U.S. 188 (2003);

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of

Indians, 541 U.S. 95 (2004); San Remo Hotel v. City

and County of San Francisco, 545 U.S. 323 (2005);

App. 2

Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005);

Kelo v. City of New London, 545 U.S. 469 (2005); S.D.

Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370

(2006); Rapanos v. United States, 547 U.S. 715 (2006);

John R. Sand and Gravel Co. v. United States, 128

S.Ct. 750 (2008); and Summers v. Earth Island Inst.,

No. 07-463, cert. granted, 128 S.Ct. 1118 (2008)