Amicus Curiae Brief — United States v. McWane, Inc. (Nos. 08-223, 08-364)

| FILED US.

\w WW... SEP 22 2008

E CLERK

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

Wr

MCWANE, INC., ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI CURIAE

AMERICAN FARM BUREAU FEDERATION®,

AMERICAN FOREST & PAPER ASSOCIATION,

ASSOCIATED GENERAL CONTRACTORS OF

AMERICA, CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA, AND

NATIONAL MINING ASSOCIATION

IN SUPPORT OF PETITIONER

VIRGINIA S. ALBRECHT

Counsel of Record

DEIDRE G. DUNCAN

ANDREW J. TURNER

JEFFREY C. COREY

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

September 22, 2008 (202) 955-1500

[Additional Counsel Listed On Inside Cover]

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WaSshiNGTON, D.C. 20002

Of Counsel:

JULIE ANNA POTTS

DANIELLE D. QUIST

AMERICAN FARM BUREAU FEDERATION®

600 Maryland Avenue, S.W., Suite 800

Washington, D.C. 20024

(202) 406-3600

WILLIAM R. MURRAY

AMERICAN FOREST & PAPER ASSOCIATION

1111 Nineteenth Street, N.W.

Washington, D.C. 20036

(202) 463-2700

MICHAEL E. KENNEDY

ASSOCIATED GENERAL CONTRACTORS OF AMERICA

2300 Wilson Boulevard, Suite 400

Arlington, VA 22201

(703) 837-5335

ROBIN S. CONRAD

AMAR D. SARWAL

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

KAREN C. BENNETT

NATIONAL MINING ASSOCIATION

101 Constitution Avenue, N.W.

Suite 500 East

Washington, D.C. 20001

(202) 463-2600

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIBESG...................c0ccscccereeee il

INTERESTS OF AMICI CURIAE ................0006+ 1

SUMMARY OF ARGUMENT .............0.......0..000. 4

IPE a 4

TE a 8

I. THE AGENCIES HAVE NOT FOL-

LOWED FUNDAMENTAL RULES

GOVERNING INTERPRETATION OF

THIS COURT'S DECISIONS.................... 8

I]. THE AGENCIES’ INTERPRETATION

OF KEY JURISDICTIONAL CON-

CEPTS FROM RAPANOS IS INCON-

SISTENT WITH THE PLURALITY

AND CONCURRING OPINIONS THAT

SET FORTH THOSE CONCEPTG............ 11

A. Traditional Navigable Waters Must

Be Highways for Trade and Travel in

Interstate and Foreign Commerce...... 11

B. Relatively Permanent Waters Must

be Relatively “Permanent.” ................. 16

C. A Significant Nexus Must Be

ST iin adeliccccnisientinhaniinidouss 19

EESTI eee ee nro e SNR 22

I a hal caliieieiidabe la

(i)

ii

TABLE OF AUTHORITIES

FEDERAL CASES Page

Cement Kiln Recycling Coalition v. EPA,

493 F.3d 207 (D.C. Cir. 2007)...............0... 7

Fairbanks North Star Borough v. U.S.

Army Corps of Eng’rs., No. 07-35545,

2008 WL 4181602 (9th Cir. Sep. 12,

SSIES Ry oat St aC ee nen 7

Marks v. United States, 430 U.S. 188

gE HEE GS Ech, Spee neo Re ee sa aD 9,10

Minnehaha Creek Watershed District v.

Hoffman, 597 F.2d 617 (8th Cir.

BEERS aa 13

Nati Ass’n of Home Builders v. Norton,

340 F.3d 835 (9th Cir. 2003).........0000000..... 20

Rapanos v. United States, 547 U.S. 715

ERSTE Se TSO oe Se ee passim

United States v. Riverside Bayview Homes,

BARR. , Ge re Ie Ca Picnrscictescccteecsnesesse. 6

Solid Waste Agency of Northern Cook Cty.

v. U.S. Army Corps of Eng’rs, 531 U.S.

RE SEED Sean eg SA amr 6,15

The Daniel Ball v. United States, 10 Wall.

I 12, 13, 14, 15

Tyler v. Bethlehem Steel Corp., 958 F.2d

Br i 10

United States v. Appalachian Electric

Power Co., 311 U.S. 377 (1940) .........000.... 12,13

United States v. Robison, 505 F.3d 1208

(11th Cir. 2007), reh’ing en banc denied,

521 F.3d 1319 (11th Cir. 2008)................. 10

ill

TABLE OF AUTHORITIES—Continued

REGULATIONS Page

ly i IE Diccscoserersserecsorseceressnesees 13

cave ciccracconvseveressesssteiseoinss 13

Se ICED ccecosesccncesossnensneseensunosees 13

DOCKETED MATERIALS

Brief of Amici Curiae National Association

of Home Builders and Chamber of

Commerce of the United States of

America Supporting Petitioners on

Petition for Writ of Certiorari, Lucas uv.

United States, No. 07-1512, 2008 WL

2697353 (U.S. July 7, 2008)..................000 10

MISCELLANEOUS

20 AM. SUR. BD Comrte $ 138 ......ccccsccscecesceccee i]

BLACK’S LAW DICTIONARY 749 (8th ed.

TRESS RO eee I 9

EPA, Memorandum for JD # 2007-04488-

EMN (Jan. 16, 2008), http:/Awww.usace.

army.mil/cw/cecwo/reg/cwa_guide/Bah

LakeEPA_memo2007-04488.pdf (Bah

Na ce 14, 15

EPA & Corps, Clean Water Act

Jurisdiction Following the U.S. Supreme

Court’s Decision In Rapanos v. United

States & Carabell v. United States (June

5, 2007), http:/AWwww.usace.army.mil/

cw/cewo/reg/cwa_guide/app_a_rapanos_

ia es peasuaenanaeanl passim

iv

TABLE OF AUTHORITIES—Continued

Page

EPA & Corps, Memorandum for MVP-

2007-1497-RQM (Dec. 11, 2007), http://

www.usace.army.mil/cw/cecwo/reg/cwa_

guide/TNW_MVP-2007-1497.pdf (Boyer

EPA & Corps, Memorandum for NWO-

2007-1550 (Dec. 12, 2007), http://www.

usace.army.mil/ew/cecwo/regewa_guide/

TNW_NW0O-2007-1550.pdf (Little Snake

ATO RT tN Rel 0 OR hk 15

EPA & Corps, Memorandum to Assert

Jurisdiction for NWS-2007-435-NO

(Aug. 29, 2007), http:/Awww.usace.

army.mil/ew/cewo/reg/cwa_guide/Kennedy

_N_RPW_NWS-2007-435-NO.pdf

(Snohomish County) ...............cccecceeesseseeees 21

EPA & Corps, Memorandum to Assert

Jurisdiction for NWS-2007-749-CRS

(Oct. 2, 2007), http:// www.usace.army

.mil/ew/cewo/reg/cwa_guide/Kennedy_N_

RPW_NWS-2007-749-CRS.pdf (Clark

Sins scisiriiichocentecsiehlchesteitcidenicetd piestapdadiacess 21

18 JAMES WM. Moore ET AL., MOORE’S

FEDERAL PRACTICE § 134.05[2] (3d ed.

v

TABLE OF AUTHORITIES—Continued

Statement of Benjamin H. Grumbles, As-

sistant Administrator for Water, U.S.

Environmental Protection Agency, and

John Paul Woodley, Jr., Assistant Secre-

tary of the Army for Civil Works, De-

partment of the Army, Before the Sub-

committee on Fisheries, Wildlife, and

Water of the Committee on Environ.

ment and Public Works, United States

Senate (August 1, 2006), available at

http://www.epa.gov/ow/speeches/060801

SI Gh dsidglininidciasdsenteppentecessenninndminnenszcoce

Page

IN THE

Supreme Court of the Anited States

No. 08-223

UNITED STATES OF AMERICA,

Petitioner,

v.

MCWANE, INC., ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI CURIAE

AMERICAN FARM BUREAU FEDERATION®,

AMERICAN FOREST & PAPER ASSOCIATION,

ASSOCIATED GENERAL CONTRACTORS OF

AMERICA, CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA, AND

NATIONAL MINING ASSOCIATION

IN SUPPORT OF PETITIONER

INTERESTS OF AMICI CURIAE

The Amici Curiae jointly have broad and united

interests, as described below. '

The parties have consented to the filing of this brief.

Counsel of record for all parties received notice at least ten days

prior to the due date of Amici Curiae’s intention to file this brief.

Pursuant to Rule 37.6 of this Court, Amici state that their

counsel authored this brief and Amici paid for it. No counsel for

a party authored this brief in whole or in part, and no counsel or

2

American Farm Bureau Federation® (“Farm

Bureau”) is a not-for-profit, voluntary general farm

organization incorporated in Illinois in 1919. It was

founded to protect, promote, and represent the

business, economic, social, and educational interests

of American farmers and ranchers. The Farm

Bureau has member organizations in all 50 states

and Puerto Rico, representing more than six million

member families. Farmers and ranchers routinely

use ponds, lagoons, internal channeling ditches, stock

ponds, and holding structures as part of productive

and necessary farming and ranching activities and

thus have a keen interest in the scope of the Clean

Water Act.

American Forest & Paper Association (“AF&PA”) is

the national trade association of the forest, paper,

and wood products industry. AF&PA members are

engaged in growing, harvesting, and processing wood

and wood fiber; manufacturing pulp, paper, and

paperboard products from both virgin and recycled

fiber; and producing engineered and traditional wood

products. AF&PA participates in administrative

proceedings arising under the Clean Water Act, and

in litigation arising from those proceedings, that

affect the forest, paper, and wood products industry.

Associated General Contractors of America (“AGC”)

is the leading national construction trade association,

representing all facets of commercial construction for

both public and private entities, including building,

heavy, highway, and municipal projects. AGC and its

party made a monetary contribution intended to fund the

preparation or submission of this brief. No persons other than

Amici Curiae, their members, or their counse] made a monetary

contribution to its preparation or submission.

3

nationwide network of chapters have advocated for

the construction industry for nearly a century. AGC’s

members’ construction activities often require

permits under the Clean Water Act, and, therefore,

the scope of regulation under the Act is of great

importance to AGC members.

Chamber of Commerce of the United States of

America (“the Chamber”) is the world’s largest

business federation. With a substantial presence in

all fifty States and the District of Columbia, the

Chamber represents an underlying membership of

more than three million businesses and organizations

of every size and kind. As the principal voice of

American businesses, the Chamber regularly

advocates the interests of its members in federal and

state courts throughout the country on issues of

national concern, such as the scope of the Clean

Water Act.

National Mining Association (“NMA”) is a national

trade association whose members produce most of

America’s coal, metals, and industrial and

agricultural minerals. Its membership also includes

manufacturers of mining and mineral processing

machinery and supplies, transporters, financial and

engineering firms, and other businesses involved in

the nation’s mining industries. NMA works with

Congress and federal and state regulatory officials to

provide information and analyses on public policies of

concern to its membership, and to promote policies

and practices that foster the efficient and

environmentally sound development and use of the

country’s mineral resources. This includes policies

under federal environmental laws like the Clean

Water Act.

4

SUMMARY OF ARGUMENT

This Court should grant the Petition of the United

States for a Writ of Certiorari to resolve confusion

regarding the scope of waters subject to the Clean

Water Act (“CWA”) created by the response of the

U.S. Army Corps of Engineers (“Corps”) and the U.S.

Environmental Protection Agency (“EPA”) (col-

lectively, “Agencies”) and the courts below to this

Court’s decision in Rapanos v. United States, 547

U.S. 715 (2006).

The Agencies have failed to discern the holding in

Rapanos consistent with rules for interpreting

plurality decisions of the Supreme Court. This

failure has led to the Agencies misinterpreting

Rapanos and misapplying the CWA to reach waters

that both the plurality and concurring opinions in

Rapanos concluded are beyond the scope of the CWA.

Faced with these broad assertions of CWA

jurisdiction, the courts have struggled with and split

over how to apply Rapanos.

This brief describes and provides examples of the

degree of confusion and legal risk clouding the

Agencies’ extensive CWA regulatory program. This

regulatory overreach, confusion, and legal risk will

continue and extend unless this Court reviews the

Court of Appeals’ decision and gives direction to the

Agencies.

INTRODUCTION

Amici support certiorari in this case. The Agencies

are ignoring basic rules that govern interpretation of

this Court’s decisions and are miscoristruing key

jurisdictional concepts set forth in Rapanos. The

Agencies issue more than 100,000 jurisdictional

determinations and review more than _ 80,000

5

individual and general permit applications in an

average year. Their response to Rapanos has

serious implications for a wide range of commercial,

agricultural, and public works projects.

Rapanos was the last CWA jurisdictional case

decided by this Court. At issue in Rapanos was the

Agencies’ assertion of CWA jurisdiction over “four

Michigan wetlands, which lie near ditches or man-

made drains that eventually empty into traditional

navigable waters.” 547 U.S. at 729 (plurality

opinion). The Agencies claimed that CWA

jurisdiction extended to any water with any

hydrological connection to traditional navigable

waters. See id. at 784 (Kennedy, J., concurring). The

plurality opinion and Justice Kennedy’s concurring

opinion both rejected the Government’s “any

hydrologic connection” theory as a basis for CWA

jurisdiction. Jd. at 740-42 (plurality opinion), 784

(Kennedy, J., concurring).

The Rapanos plurality concluded that CWA

jurisdiction is limited to waters that are (1)

“relatively permanent, standing or continuously

flowing bodies of water” connected to traditional

interstate navigable waters, and (2) wetlands with a

“continuous surface connection” to such waters such

that “there is no clear demarcation between” the

wetlands and the “relatively permanent waters.” Id.

2

Statement of Benjamin H. Grumbles, Assistant

Administrator for Water, U.S. Environmental Protection

Agency, and John Paul Woodley, Jr., Assistant Secretary of the

Army for Civil Works, Department of the Army, Before the

Subcommittee on Fisheries, Wildlife,. and Water of the

Committee on Environment and Public Works, United States

Senate (August 1, 2006), available at http://www.epa.gov

/ow/speeches/06080 lbg. html.

6

at 739, 742 (plurality opinion) (internal citations and

quotations omitted). The plurality specifically noted

that wetlands with “only an intermittent, physically

remote hydrologic connection . . . do not implicate the

boundary-drawing problem of Riverside Bayview, and

thus lack the necessary connection to covered waters

that we described as a ‘significant nexus’ in

SWANCC.” Id. at 742.° In a concurring opinion,

Justice Kennedy concluded that CWA jurisdiction

requires in all cases a “significant nexus” to

traditional navigable waters, which must be

demonstratea by substantial evidence showing the

“measure of the significance of the connection” to

traditiona: navigable waters. Id. at 784 (Kennedy, J.,

concurring). He, too, stated that a mere hydrological

connection is not enough.

Members of the Court agreed that the Agencies

should promptly address CWA jurisdiction through

rulemaking. See 547 U.S. at 726 (plurality opinion)

(the Corps proposed “rulemaking in light of SWA-

NCC... but ultimately did not amend its published

regulations”); id. at 758 (Roberts, C.J., concurring)

(rather than “refining its view of its authority”

through rulemaking, “the Corps chose to adhere to its

essentially boundless view of the scope of its power”);

id. at 782 (Kennedy, J., concurring) (“[a]bsent more

specific regulations” the Corps must establish

jurisdiction on a “case-by-case basis”); id. at 812

(Breyer, J., dissenting) (Rapanos opinions taken

together call for the Corps “to write new regulations,

and speedily so”). The Amici wholeheartedly agree.

; Citing United States v. Riverside Bayview Homes, Inc., 474

U.S. 121 (1985) and Solid Waste Agency of Northern Cook Cty. v.

U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) (“SWANCC”).

i

7

But rather than conduct the rulemaking urged by

Members of this Court, the Agencies issued “interim

guidance.” EPA & Corps, Clean Water Act

Jurisdiction Following the U.S. Supreme Court’s

Decision In Rapanos v. United States & Carabell v.

United States (June 5, 2007) (hereinafter

“Guidance”), http://www.usace.army.mil/cw/cewo/reg

/cwa_guide/app_a_rapanos guide.pdf. The Agencies’

Guidance and the determinations made under it are

critically flawed because (1) the Agencies conclude

that they can rely on the dissenting opinions to find

two alternative holdings in this case, contrary to

fundamental principles that govern interpretation of

this Court’s decisions, and (2) the Agencies have

significantly misconstrued key elements of the

Rapanos opinions, including “traditional navigable

waters,” “relatively permanent waters,” and

* One reason this case is so important is that the avenues for

judicial review of the Agencies’ jurisdictional assertions under

the CWA are very limited. By issuing guidance rather than

undertaking rulemaking, the Agencies would offer members of

the public a Morton’s Fork for challenging their assertions of

jurisdiction: (1) in an enforcement action, or (2) after spending

between 313 and 788 days and between $28,915 and $271,596 to

obtain a permit from the Corps. See Rapanos, 547 US. at 721

(plurality opinion) (noting the time and cost involved in

obtaining a Corps CWA permit); cormpure Cement Kiln Recycling

Coalition v. EPA, 493 F.3d 207, 216 (D.C. Cir. 2007) (discussing

availability of judicial review of agency guidance which appears

to be or is applied as binding) and Fairbanks North Star

Borough v. U.S. Army Corps of Eng’rs., No. 07-35545, 2008 WL

4181602 at *4-5 (9th Cir. Sept. 12, 2008) (holding that Corps

jurisdictional determinations are not final agency action subject

to judicial review at the time they are issued, but noting that

CWA jurisdiction may be challenged in a later enforcement

action or permit challenge).

8

“significant nexus,” to substantially expand their

jurisdiction under the CWA.

The Agencies seek a writ of certiorari to obtain this

Court’s endorsement of their flawed approach to

interpreting Rapanos. They also want the Court to

endorse their expansive view of the jurisdictional

tests described in Rapanos. Amici strongly agree

that certiorari is needed, but to correct rather than

endorse the actions of the Agencies.”

ARGUMENT

I. THE AGENCIES HAVE NOT FOLLOWED

FUNDAMENTAL RULES GOVERNING

INTERPRETATION OF THIS COURT'S

DECISIONS.

The Agencies fail to discern an actual holding in

Rapanos. Instead, they take the astonishing position

that they can pick and choose between either the

plurality’s “relatively permanent waters” test or

Justice Kennedy’s “significant nexus” test. See

Guidance at 3. Even more surprising, they argue

that they can rely on the dissenting opinions to

establish majority support for either test because

“[wlhen there is no majority opinion in a Supreme

* The focus of Amici is not on the facts of this case, but rather

the serious legal and practical implications of the Agencies’ and

the courts’ interpretation of CWA _ jurisdiction following

Rapanos. However, the fact that this case arises in a criminal

context while the public, the Agencies, and the courts are all

struggling to understand and apply Rapanos underscores the

gravity of the legal and practical issues at stake. Accordingly,

Amici believe it is important to review CWA jurisdiction as it

applies to all types of water bodies. If consideration of other

cases in addition to this one would facilitate comprehensive

review, Amici would support granting certiorari in those cases

as well.

i

9

Court case, controlling legal principles may be

derived from those principles espoused by five or

more Justices.” Jd. This is counting heads, not the

faithful execution of the law.

The Agencies cannot interpret a ruling of this

Court as having two alternative holdings, and cannot

rely on the views of dissenting Justices to identify a

holding. It is fundamental that cases are interpreted

through their holdings. A holding is the “necessary”

and “pivotal” logic that results in a decision in the

case. See BLACK’S LAW DICTIONARY 749 (8th ed. 2004)

(defining “holding” as “a court’s determination of a

matter of law pivotal to its decision”); id. at 1102

(defining “obiter dictum” as a comment in a judicial

opinion “that is unnecessary to the decision in the

case and therefore not precedential”). It is also

fundamental that dissenting opinions are not part of

a case’s holding. See 20 AM. JUR. 2D Courts § 138 (“A

minority opinion has no binding, precedential value”);

18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL

PRACTICE § 134.05(2} (8d ed. 2006) (“Stare decisis

does not apply to dissenting opinions.”) These basic

principles are reflected in this Court’s Marks rule,

which says:

When a fragmented Court decides a case and no

single rationale explaining the result enjoys the

assent of five Justices, the holding of the Court

may be viewed as that position taken by those

Members who concurred in the judgments on the

narrowest grounds.

Marks v. United States, 430 U.S. 188, 193 (1977)

(emphasis added and internal quotations omitted);

see also Rapanos, 547 U.S. at 758 (Roberts, C.J.,

concurring) (referencing Marks).

10

The Agencies make no effort, as required by Marks,

to determine “the holding” of “those Members who

concurred in the judgments” in Rapanos. Instead,

they reinvent Marks because they claim Justice

Kennedy’s opinion is not a perfect subset of the

plurality’s opinion or vice-versa. This narrow view

misses the point. The Agencies’ obligation is to find

the common ground between the plurality and

Justice Kennedy that produced the judgment in

Rapanos. See Tyler v. Bethlehem Steel Corp., 958

F.2d 1176, 1182-83 (2d Cir. 1992) (the “essence” of

Marks is to find “common ground” among Justices

who concurred in judgment).” As explained in Part il

below, the Agencies have not found that common

ground at least in part because they misinterpret

both the plurality and concurring opinions.

Even assuming, for the sake of argument, that no

common ground exists between the plurality and

Justice Kennedy, such a lack of commonality would

not give the Agencies license to interpret Rapanos

based on the views of dissenting Justices or to arrive

at alternative holdings. The Agencies seek a writ of

certiorari effectively to obtain such license from this

Court. The Court of Appeals correctly rejected the

Agencies “either/or” approach. United States v.

Robison, 505 F.3d 1208, 1221 (11th Cir. 2007) (that

the dissenting Justices would find CWA jurisdiction

under both tests “is of no moment under Marks”).

The Agencies, however, continue to treat the dissent

* See Brief of Amici Curiae National Association of Home

Builders and Chamber of Commerce of the United States of

America Supporting Petitioners on Petition for Writ of

Certiorari at 12-17, Lucas v. United States, No. 07-1512, 2008

WL 2697353 (U.S. July 7, 2008), identifying seven points of

convergence between the plurality and concurring opinions.

11

as part of Rapanos’ holding, and, if the past is

prologue, will continue to do so until this Court

clarifies that Rapanos must be applied consistently

with Marks and the basic definition of a holding.

Il. THE AGENCIES’ INTERPRETATION OF

KEY JURISDICTIONAL CONCEPTS

FROM RAPANOS IS INCONSISTENT

WITH THE PLURALITY AND CON-

CURRING OPINIONS THAT SET FORTH

THOSE CONCEPTS.

This Court should grant certiorari because the

Agencies are implementing the CWA in a manner

fundamentally at odds with this Court’s decision in

Rapanos, which has led the lower courts to struggle

with and split over how to apply Rapanos.

In particular, the Agencies have (1) deemed water

bodies to be traditional navigable waters if they have

enough water to “float a boat” or if they have the

potential to be visited by out-of-state residents; (2)

issued Guidance stating a water body may be deemed

“relatively permanent” in accordance with the

plurality opinion if it flows only three months a year

(or even less); and (3) converted Justice Kennedy’s

“significant nexus” into “a” nexus. We address each

of these elements in turn..

A. Traditional Navigable Waters Must Be

Highways for Trade and Travel in

Interstate and Foreign Commerce.

Whether a water body is a traditional navigable

water is of fundamental importance after Rapanos

because both the plurality and Justice Kennedy

premise jurisdiction over non-navigable waters on the

non-navigable water’s relationship to _ traditional

12

navigable waters. While the plurality and Justice

Kennedy used varying formulations (“traditional

interstate navigable waters” and “navigable waters in

the traditional sense”),’ the waters to which they are

referring are unmistakable from the cases they cite —

The Daniel Ball v. United States and United States v.

Appalachian Electric Power Company.”

The Daniel Ball and Appalachian Electric are

cornerstones in a series of cases defining “navigable

waters of the United States.” In The Daniel Ball, the

Court held that:

Those rivers must be regarded as_ public

navigable rivers in law which are navigable in

fact. And they are navigable in fact when 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. And they constitute

navigable waters of the United States within the

meaning of the acts of Congress, in contra-

distinction from the 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.

"547 U.S. at 742 (plurality opinion); id. at 779 (Kennedy, J.,

concurring).

" See Rapanos, 547 U.S. at 734 (plurality opinion) (citing The

Daniel Ball v. United States, 10 Wall. 557, 563 (1871) and

United States v. Appalachian Electric Power Co., 311 U.S. 377,

407-409 (1940)); id. at 761 (Kennedy, J., concurring) (same).

13

The Daniel Ball, 10 Wall. 557, 563 (1871) (emphasis

added).° Seventy years later, in Appalachian

Electric, the Court held that a water could also be

deemed “navigable” if it could be made navigable by

“reasonable improvements.” 311 U.S. at 407.

The Agencies ignore the opinions’ citations to The

Daniel Ball, and instead define “traditional navigable

waters” as:

All waters which are currently used, or were

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

interstate commerce, including all waters which

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

C.F.R. § 328.3(a)(1); 40 C.F.R. § 230.3(s)(1).

Guidance at 4-5. They explain in a footnote that:

The “(a)(1)” waters include all of the “navigable

waters of the United States,” defined in 33 C.F.R.

Part 329 and by numerous decisions of the

federal courts, plus all other waters that are

navigable-in-fact (e.g., the Great Salt Lake, UT

and Lake Minnetonka, MN).

Guidance at 5 n.19.

In other words, The Daniel Ball waters are only a

subset of the Agencies’ new definition of traditional

navigable waters. The definition also reaches waters

that are, were, or could be subject to any use in

interstate commerce. This is a critical — and

impermissible — expansion of the traditional navig-

* See also Minnehaha Creek Watershed District. v. Hoffman,

597 F.2d 617, 622-23 (8th Cir. 1979) (“The Daniel Ball test is bi-

partite: first, the body of water must be navigable in fact; and

second, it must itself, or together with other waters, form a

highway over which commerce may be carried on with other

states.”).

14

able waters concept, which goes well beyond what the

plurality and concurring opinions referred to as

“traditional interstate navigable waters” or

“navigable waters in the traditional sense.” The

cases cited by the plurality and Justice Kennedy in

reference to traditional navigable waters emphasize

the use of such waters as “highways for commerce.”

Use “in interstate commerce” is far broader than use

as waterborne “highways for commerce, over which

trade and travel are or may be conducted in the

customary modes of trade and travel on water.” The

Daniel Ball, 10 Wall. at 563.

Moreover, the unexplained reference to “navigable-

in-fact” waters has bred confusion among field staff

who have to apply the Guidance. Many of them do

not know that “navigable-in-fact” is a legal term of

art grounded in The Daniel Ball, and instead have

read it literally to mean that a water is “navigable-in-

fact” if it can “float a boat.” Traditional navigable

waters determinations issued in the wake of the

Guidance reinforce that mistaken belief. Bah Lakes,

an isolated 70-acre lake in Minnesota with 10-foot-

deep water, was deemed a traditional navigable

water because “its physical characteristics .. .

indicate that the waterbody has the capacity to be

navigated by watercraft.” EPA, Memorandum for JD

# 2007-04488-EMN (Jan. 16, 2008), http://;www.usace

-army.mil/cw/cecwo/reg/cwa_guide/BahLakeEPA_me

mo2007-04488.pdf (hereinafter “Bah Lakes TNW

Determination”) at 2; see also EPA and Corps,

Memorandum for MVP-2007-1497-RQM (Dec. 11,

2007), http://www.usace.army.mil/cw/cecwo/reg/cwa_

guide/TNW_MVP-2007-1497.pdf (hereinafter “Boyer

Lake TNW Determination”). This is a far cry from

the highways of commerce the Court described in

15

The Daniel Ball to explain what it meant when it

said “navigable in fact.”

Other traditional navigable waters determinations

cite “affecting commerce” factors eerily reminiscent of

the Migratory Bird Rule this Court rejected in

SWANCC. A segment of the Little Snake River was

deemed a traditional navigable water because it is

“accessible to the public,” various wildlife agencies

float “various reaches of the... River... as part of

aquatic life monitoring,” and hunting and fishing

lodges in the general vicinity are a “documented

source of interstate travelers in the area.” EPA and

Corps, Memorandum for NWO-2007-1550 (Dec. 12,

2007), http:/Awww.usace.army/mil/cw/cecwo/reg/cwa

_guide/TNW_NWO-2007-1550.pdf (Little Snake

River). Likewise, Boyer Lake in Minnesota was

deemed a traditional navigable water because the

public has access to the lake, the lake has the

capacity to be navigated by watercraft, and some of

the recreational fishermen using the lake come from

North Dakota. See Boyer Lake TNW Determination

at 2. The Bah Lakes traditional navigable waters

determination mentioned above noted that the lake is

approximately 60 miles from the North Dakota

border and therefore “readily accessible to interstate

travelers.” Bah Lakes TNW Determination at 3.

None of these determinations meets the criteria of

The Daniel Ball and its progeny. Rather, they go

well beyond the limits recognized in the opinions of

the plurality and Justice Kennedy in Rapanos. Of

course, the farther up the watershed a traditional

navigable water can be found, the easier it will be to

find that other remote water bodies have a significant

nexus to traditional navigable waters.

16

B. Relatively Permanent Waters Must be

Relatively “Permanent.”

The Agencies specifically seek certiorari so that

they can continue to apply their mistaken

interpretation of the plurality’s “relatively permanent

waters” test. The Agencies’ interpretation of this

standard, however, completely misconstrues the

plurality opinion by eliminating its hallmark

namely, that the waters in question be “permanent.”

Emphasizing the significance of the statutory term

“navigable,” the Rapanos plurality determined that

“waters of the United States” include “only those

relatively permanent, standing or continuously

flowing bodies of water forming geographic features

that are described in ordinary parlance as streams[,]

... oceans, rivers, [and] lakes.” Rapanos, 547 U.S. at

739 (plurality opinion) (emphasis added) (internal

citations and quotations omitted). The plurality

distinguished these “relatively permanent waters”

from “ordinarily dry channels through which water

occasionally or intermittently flows ... transitory

puddles . . . ephemeral flows of water . . . storm

sewers and culverts . .. man-made drainage ditches,

and dry arroyos in the middle of the desert.” Jd. at

733-34. By the plurality’s view, even the “least

substantial of the definition’s terms, namely

‘streams,’ connotes a continuous flow of water in a

permanent channel ... ” and “({ujnder no rational

interpretation are typically dry channels” considered

permanent waters. Jd. at 733, 735.

The Agencies’ definition of “relatively permanent

waters” flouts the concept adopted by the plurality.

Their Guidance says a water body may be deemed

“relatively permanent” if it has “continuous flow at

least seasonally (e.g., typically three months).”

17

Guidance at 5-6 (emphasis added). They cite footnote

5 of the plurality opinion, which, according to the

Guidance, “explain[s] that ‘relatively permanent’ does

not necessarily exclude waters ‘that might dry up in

extraordinary circumstances such as drought’ or

‘seasonal rivers, which contain continuous flow

during some months of the year but no flow during

dry months.” Guidance at 6 n.22, citing 547 U.S. at

733 n.5 (plurality opinion) (emphasis in original).

This is a non sequitur. A statement that “seasonal”

waters are “not necessarily excluded” does not mean

that all waters that flow “seasonally” are necessarily

included."

Even more troubling, the Agencies have deleted

from their quotation of the plurality opinion the

example the plurality used to explain what it meant

by a “seasonal river” — i.e., “the 290-day, continuously

flowing stream postulated by Justice Stevens’

dissent.” 457 U.S. at 733 n.5 (plurality opinion). The

plurality’s 290-day example has been excised, and the

“seasonal river” it exemplified converted to 90 days of

flow. Ninety days is 200 days less than 290 days.

Moreover, using 90 days of flow to define a water as

“relatively permanent” is completely at odds with the

plurality’s observation that “[clommon sense and

common usage distinguish between a wash and a

seasonal river.” Id. The Agencies have set forth an

° The Agencies’ creative interpretation of the plurality’s opin-

ion is not limited to the term “permanent.” The Guidance ob-

serves that the plurality requires that wetlands have a “continu-

ous surface connection” to relatively permanent waters, and

then notes boldly that for purposes of the Guidance “[a]

continuous surface connection does not require surface water to

be continuously present...” Guidance at 6 n.25 (emphasis

added).

18

interpretation of the relatively permanent standard

that can allow jurisdiction over a wide range of non-

permanent waters that are the opposite of

permanent, such as streams that are ordinarily dry.

Notwithstanding the infirmities of the Agencies’

three-month flow standard, some Corps districts and

EPA regions are ignoring even this overbroad test

and applying their own ad hoc test, allowing the

“relatively permanent” standard to be met by flow for

even less than three months each year. For example,

in response to questions regarding how to apply the

Guidance to ephemeral drainages in the arid West,

an e-mail broadly circulated within the South Pacific

Division in July 2007 states the following:

EPA has indicated to us that the requirement for

an RPW to have three consecutive months of flow

annually is guidance only. They have indicated

that ari watercourse which has “predictable,

seasonal flow” could be considered an RPW.

See E-mail from Corps official to various stakeholders

(July 23, 2007, 3:34 p.m.) (attached hereto at

Appendix A). As this communication suggests, field

staff appear to be disregarding the Guidance because

it is “guidance only,” and thus applying their own ad

hoc interpretation of what constitutes “relatively

permanent” flow. Under a “predictable, seasonal

flow” standard suggested by this field

communication, an ephemeral drainage with any

amount of flow, whether for one hour, one day, one

week, or one month per year could be deemed

jurisdictional provided such flow is’' merely

“predictable” and “seasonal.”

Defining a relatively permanent water as any

“predictable, seasonal flow” — without regard to vol-

19

ume, duration, and frequency of flow, and without

regard to the relationship to a traditional navigable

water — is not only at odds with the Rapanos de-

cision, but undermines the consistency and clarity

the Agencies should be providing, preferably through

rulemaking. Moreover, that certain districts are

claiming that they can disregard the Guidance

because it is not legally binding demonstrates the

degree of confusion and legal risk clouding the

Agencies’ extensive CWA regulatory program. This

regulatory overextension and confusion will continue

unless this Court reviews the Court of Appeals’

decision.

C. Significant Nexus Must Be

“Significant.”

The Agencies have, since this Court decided

Rapanos, heavily employed the “significant nexus”

label to assert CWA jurisdiction (as an alternative to

using the ‘relatively permanent waters” label,

discussed above). But the Agencies have eliminated

“significant” from the “significant nexus” test

described by Justice Kennedy, instead asserting

jurisdiction over all waters that “have a more than

speculative or insubstantial effect on” traditional

navigable waters. Guidance at 10. The Agencies’

misapplication of the “significant nexus” test has,

similar to their misapplication of the “relatively

permanent waters” test, sweeping and impermissible

implications for CWA jurisdiction.

In his concurring opinion in Rapanos, Justice

Kennedy stated that “the Corps’ jurisdiction over

wetlands depends upon the existence of a significant

nexus between the wetlands in question and

navigable waters in the traditional sense.” Rapanos,

547 U.S. at 779 (Kennedy, J., concurring). The

20

wetlands must “significantly affect the chemical,

physical, and biological integrity of other covered

waters more readily understood as ‘navigable.” Jd.

at 780 (emphasis added). Justice Kennedy explained

that there must be “substantial evidence” showing

the significance of the connection to traditional

navigable waters. Jd. at 786. “When, in contrast,

wetlands’ effects on water quality are speculative or

insubstantial, they fall outside the zone fairly

encompassed by the statutory term ‘navigable

waters.” Id. at 784. A “mere hydrologic connection”

between a wetland and a traditional navigable water

will not suffice absent “some measure of the

significance of the connection for downstream water

quality.” Jd. Nor will speculation suffice. Jd. at 786.

Justice Kennedy criticized the Agencies and the

lower courts for finding jurisdiction based on the

“potential ability of the wetland to act as a sediment

basin” and a likelihood that downstream areas would

“see an increase in possible flooding.” Jd. at 785-86

(emphasis added).

The Agencies’ Guidance turns Justice Kennedy’s

significant nexus test upside-down, allowing juris-

diction when the nexus between a wetland and a

traditional navigable water is “more than speculative

or insubstantial.” See Guidance at 10. Moreover, the

Agencies’ Guidance does not establish the “measure

of the significance” Justice Kennedy called for. Thus,

the Agencies define “significant nexus” to mean

anything “more” than what Justice Kennedy said was

insufficient. But “more than speculative or insub-

stantial” is not the same as “significant.” See Nat'l

Ass'n of Home Builders v. Norton, 340 F.3d 835, 846

(9th Cir. 2003) (the “commonly understood” meaning

of significant is “important”).

21

The Agencies’ significant nexus determinations

made in accordance with the Guidance re,

predictably, deficient. A significant nexus deter-

mination made for wetlands in Clark County,

Washington, begins with a statement that there is a

surface hydrological connection to a _ traditional

navigable water, moves to a recitation of routine

wetland functions, and concludes that the wetlands

impact a traditional navigable water. EPA and

Corps, Memorandum to Assert Jurisdiction for NWS-

2007-749-CRS (Oct. 2, 2007), http://www.usace.

army.mil/ew/cewo/reg/cwa_guide/Kennedy_N_RPW_

NWS-2007-749-CRS.pdf (Clark County). See also

EPA and Corps, Memorandum to Assert Jurisdiction

for NWS-2007-435-NO (Aug. 29, 2007), http://www.

usace.army.mil/cw/cewo/reg/cwa_guide/Kennedy_N_R

PW_NWS-2007-435-NO.pdf (Snohomish County).

Completely absent is a discussion of the extent to

which the functions exist or the degree to which they

impact the water quality of traditional navigable

waters. A statement that certain wetlands provide

wetland functions is tautological. More is needed

than just “any connection” or, as here, any function.

There must be a showing of the “measure of the

significance of the connection for downstream water

quality” before it can be determined whether the

nexus rises to the level of “significant.” Rapanos, 547

U.S. at 784 (Kennedy, J., concurring) (emphasis

added).

22

CONCLUSION

The public is confused, the circuits are split, and

people are going to jail. For all of the foregoing

reasons, the Court should grant the requested

petition and clarify the meaning of “waters of the

United States.”

Pespectfully submitted,

VIRGINIA S. ALBRECHT

Counsel of Record

DEIDRE G. DUNCAN

ANDREW J. TURNER

JEFFREY C. COREY

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

September 22, 2008 (202) 955-1500

From:

Sent:

To:

Subject:

la

APPENDIX A

Blaine, Marjorie E SPL [Marjorie.E.Blaine

@spl01.usace.army.mil]

Monday, July 23, 2007 3:48 PM

Amy.Moore@E]Paso.com; Angela Barclay;

territorial.chuck@frontiernet.net; Clint Glass;

Fred Phillips; Greg Santo; Allen W. Gross;

Jennifer Christelman; Chris Cawein;

Jill Himes; jim@harcuvarco.com; Jim

Tress; Karl Taylor; K_Thicks@yahoo.com;

kwhitman@westlandresources.com; LSmith@

epgaz.com; RVanommere@aol.com; pnzomo

@comcast.net; Rion Bowers; Stephen E.

Glass; Russell C. Wise; David Taylor;

Bowers, Garth; Catesby Willis; Kofi

Awumah; Janice Hughes; Ken Kertell;

Todd R. Bremner; SBreslin@tep.com;

Avant, Paul; Larkin, Bob; PETER

LIVINGSTON; Corby Lust; Chris Rod; D

Warren; Don N. Anderson; Eric Koster;

Gene_Rogge@URSCorp.com; Josh McEnany;

kristin myers; Kim_Bidle@URSCorp.com;

Martin, Marcie; Zeller, Mike -- ISG;

Swaim, Phil; Tanner, Rene; Robert Pape;

sce@corralesengineering.com; Udaya Prakash

FW: Rapanos Guidance

Attachments: Final JD Form.doc

One additional, important item I forgot to mention.

My apologies....

The Corps is still looking at every wash that even

MIGHT have been jurisdictional before the Rapanos

guidance.

The only things that are clearly not

jurisdictional are swales, erosional features, and

2a

manmade ditches constructed entirely in uplands

which do not intersect, drain, or are not tributary to

any water of the U.S. Since there is no definition of

“small wash”, we would like to look at everything and

your proposed SN determination. So even really

small washes .. . one foot wide which have an

OHWM should be considered in your submittals.

They will be determined to be jurisdictional or not on

a case-by-case basis depending on whether they have

a SN toa TNW.

Thanks again.

Marjorie

Subject:

3a

Blaine, Marjorie E SPL

Monday, July 23, 2007 12:34 PM

‘Moore, Amy M (Amy); Angela Barclay

(cottonwood_environmental@cox.net);

(territorial.chuck@frontiernet.net); ‘Clint

Glass’; ‘Fred Phillips’; “Greg Santo’; ‘Allen

W. Gross’; Jennifer Christelman; ‘Chris

Cawein’; ‘Jill Himes’; (jim@harcuvarco.

com); ‘Jim Tress’; Kar! Taylor (Karl.Taylor

@co.mohave.az.us); K_ Thicks@yahoo.com;

kwhitman@westlandresources.com; LSmith@

epgaz.com; ‘RVanommere@aol.com’; ‘pnzomo

@comcast.net’; ‘Rion Bowers’; ‘Stephen E.

Glass’; ‘Russell C. Wise’; ‘David Taylor’;

‘Bowers, Garth’; ‘Catesby Willis’; ‘Kofi

Awumah’; ‘Janice Hughes’; ‘Ken Kertell’;

‘Todd R. Bremner; ‘SBreslin@tep.com’;

‘Avant, Paul’; ‘Larkin, Bob; ‘PETER

LIVINGSTON’; ‘Corby Lust’; ‘Chris Rod’;

‘D Warren’; ‘Don N. Anderson’; ‘Eric

Koster’; ‘Gene_Rogge@URSCorp.com’; ‘Josh

McEnany; ‘kristin myers’; ‘Kim_Bidle

@URSCorp.com’; ‘Martin, Marcie’; ‘Zeller,

Mike — ISG’; Swaim, Phil; “Tanner, Rene’;

‘Robert Pape’; ‘sce@corralesengineering.

com’; ‘Udaya Prakash’

FW: Rapanos Guidance

I wanted to provide you all with a brief update on the

Rapanos Guidance and the Corps’ implementation of

this guidance.

If you are working on delineations for Pima County,

we are currently gathering the documentation to

determine if the Rillito River and/or the Santa Cruz

River are TNWs. We intend to meet on July 31st to

4a

make a determination that will go to Headquarters

for approval. We are hoping to reccive approval from

HQ quickly--within a couple of weeks. Therefore, it

will be difficult for us to verify any jds until we know

what the approved TNWs are for Pima County.

Obviously, if you submit a jd with a significant nexus

(SN) determination to the Colorado River, the results

might be very different than if you are making a SN

determination to the Rillito or Santa Cruz River. As

a Branch, Arizona is also looking at the Virgin,

Verde, Salt, Gila, San Pedro, and New Rivers as well

as several creeks (i.e. Skunk Creek in Maricopa

County). All of these will be submitted to HQ at one

time for their approval.

EPA has indicated to us that the requirement for an

RPW to have three consecutive months of flow

annually is guidance only. They have indicated that

any watercourse which has “predicatable, seasonal

flow” could be considered an RPW. They have also

stated that once a watercourse is determined to be an

RPW, everything downstream of it would be juris-

dictional.

When submitting jds, please be sure to submit a cd

with all information or a third copy of the entire

submittal for transmittal to EPA. If you submit a cd,

please try to keep the submittal to 3 MB so I can

transmit it electronically. Attached is an MS Word

doc of the new jd form. You are welcome to complete

it and submit it to us as it will help you define the

information you need and will concisely help to

submit it to us. It will also help us as it will expedite

our completion of the form; please note, however, that

we are under no obligation to use the form you

submit if we disagree with it. There are directions

for completing the form starting on page 47 of the

5a

guidebook. The link to al] the Rapanos guidance

(including the guidebook) is:

http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/

cwa_guide.htm

When you submit hydrology information, please keep

it concise. We don’t have the room to store 2-inch

binders of drainage reports. For SN determinations,

we are looking for volume, duration, frequency of flow

(please provide the Q100); size of drainage area;

distance to TNW; average annual rainfall; physical,

chemical, biological significance to the closest TNW.

Please feel free to share this information. My

apologies to anyone I might have missed that you

forward this to.

Marjorie Blaine

Senior Project Manager/Biologist

U.S. Army Corps of Engineers

Tucson Project Office, Regulatory Division

5205 E. Comanche Street

Tucson, AZ 85707

(520) 584-1684 (phone)

(520) 584-1690 (fax)

<<Final JD Form.doc>>

6a

From: Blaine, Marjorie E SPL

Sent: Tuesday, June 05, 2007 11:07 AM

To: Amy.Moore@El]Paso.com; Angela Barclay

(cottonwood_environmental@cox.net);

(territorial.chuck@frontiernet.net),

cglass@cmgdrainage.com; fphillips@comm

speed.net; Greg Santo (greg.santo@d

ot.pima.gov); halgros @amug.org; Jennifer

Christelman; Chris Cawein (chris.cawein@

rfcd.pima.gov); jillhimes@cox.net; (jim@har

cuvarco.com); Jim; Karl Taylor (Karl.Taylor

@co.mohave.az.us); K_Thicks@yahoo.com;

kwhitman@westlandresources.com;

L.Smith@epgaz.com; ‘RVanommere@aol.

com’; pnzomo@comcast.net; rbowers@west

landresources.com; sglass@gaultgroup.

com; ‘Russell C. Wise’; ‘David Taylor’;

‘Bowers, Garth’; ‘Catesby Willis’; ‘kawumah

@prestigeengineering.com’; jhughes@psom

as.com’; ‘Ken Kertell’

Subject: Rapanos Guidance

As many of you have heard by now, the Rapanos

Guidance was announced by the Corps and EPA a

short time ago. We will be receiving copies of the

guidance about the same time as you do; we’ve been

given no advance copies. The Los Angeles District

Regulatory Division will be meeting today to discuss

the guidance, in general. Please feel free to pass this

email on to anyone else in your office or other

consultants or your clients.

The guidance is evidently quite lengthy and it will

take us some time to fully understand it and to also

implement a procedure for verifying jds within the

Los Angeles District and also the South Pacific

7a

Division so we are consistent. It appears, though,

that there will be some requirement for EPA

approval of jds made under “significant nexus” and so

we will also need time to sort that out with EPA

Region IX as to the procedure.

We appreciate your patience to date on this lengthy

process and hope that you see a light at the end of the

tunnel. We must ask for your continued patience for

just a few weeks more as we digest the guidance and

determine the best implementation for it within our

District and Division and with EPA. We anticipate

that you can begin submitting jds within three weeks

and ask that you, again, be patient with us until that

time. I will send out another email when we are

ready to begin accepting jds. Our first priority after

-the next few weeks is to verify the jds under the new

guidance that we’ve been holding for the last 10-12

months. Then we will begin to review new jds.

If you have recently submitted a jd and asked us to

do it under pre-Rapanos guidance as your client was

willing to take the risk of having it redone, we will be

reviewing those under the guidance to be received

today. We will also be required to review any NWP

PCNs that do not already have jds under the new

guidance so if you planned to submit a NWP PCN

shortly, we would appreciate your patience in that as

we will not be able to process and issue the NWP

verifications until we have our district implementa-

tion in place.

This is going to be a learning process for us all and I

believe the review time for jds is going to be

significantly longer until we get all the kinks ironed

out and the backlog addressed. We truly appreciate

your patience and are happy to answer any questions

or assist you in any way we can. Please feel free to

8a

call or email me if you have questions but my

knowledge on this guidance will be minimal at this

time. I will also be out of the office from June 8th-

June 18th attending to family matters of urgency. I

expect upon my return I will be able to fully assist

you with any questions and then I will advise you

when we are ready to accept jds. Again, that should

be within just a few weeks.

Thank you all very much. I look forward to working

with you in the future and please advise your clients

we will do the best we can.

Marjorie Blaine

Senior Project Manager/Biologist

U.S. Army Corps of Engineers

Tucson Project Office, Regulatory Division

5205 E. Comanche Street

Tucson, AZ 85707

(520) 584-1684 (phone)

(520) 584-1690 (fax)