Amicus Curiae Brief — Rapanos v. United States

—Saeme Coot UE

(4) FILED

No. 04-1034

In The

Supreme Court of the Gnited States

¢

JOHN A. RAPANOS; JUDITH A. NELKIE RAPANOS;

PRODO, INC.; ROLLING MEADOWS HUNT CLUB;

and PINE RIVER BLUFFS ESTATES, INC.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

SJ

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

o

WILLIAM PERRY PENDLEY*

*Counsel of Record

CHRISTOPHER T. MASSEY

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

_—————————— ee

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

}

QUESTIONS PRESENTED

1. Whether the Clean Water Act’s prohibition on

unpermitted discharges to “navigable waters” extends to

nonnavigable wetlands that do not even abut a navigable

water?

2. Whether the extension of Clean Water Act juris-

diction to every intrastate wetland with any sort of hydro-

logical connection to navigable waters, no matter how

tenuous or remote the connection, exceeds Congress’

constitutional power to regulate commerce among the

States?

IN RR

Petitioners:

Respondents:

Amicus Curiae:

ii

LIST OF PARTIES

Prodo, Inc.; Rolling Meadows Hunt

Club; and Pine River Bluff Estates, Inc.,

are wholly owned by John A. Rapanos

and Judith A. Nelkie Rapanos. Peti-

tioner companies have no parent com-

pany and no publicly held company

owns 10 percent or more of Petitiosers’

stock.

United States of America.

Mountain States Legal Foundation.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....0......ccccccccseseseseseseeeeeevees i

ee ii

TABLE OF AUTHORITIES ..........2..ccccccccsseeseseseeeeeeeeee v

AMICUS CURIAE BRIEF OF MOUNTAIN STATES

LEGAL FOUNDATION IN SUPPORT OF PETI-

IDENTITY AND INTEREST OF AMICUS CURIAE ....

eae

ARGUMENT IN SUPPORT OF PETITION .................

I.

Il.

THE SIXTH CIRCUIT'S RULING, EXTEND-

ING CLEAN WATER ACT JURISDICTION

TO ISOLATED, INTRASTATE WETLANDS

WITH ANY HYDROLOGICAL CONNECTION

TO NAVIGABLE WATERS, EXCEEDS CON-

GRESS’ POWER UNDER THE COMMERCE

CLAUSE AND INTRUDES ON TRADI-

TIONAL STATE RIGHTG..............:cccccccsceeeseeeeees

ONLY THIS COURT MAY RESOLVE THE

CONFLICT AND CONFUSION AMONG THE

COURTS OF APPEALS, ADMINISTRATIVE

AGENCIES, AND STATES OVER THE

SCOPE OF FEDERAL JURISDICTION UN-

DER THE CLEAN WATER ACT.................:000000

A. There Is A Split In The Courts Of Appeals

Following SWANCC..............::sssecssscsssssseenees

B. The Response Of The Corps And EPA To

SWANCC Fails To Resolve The Dispute

Over Federal CWA Jurisdiction..................

iv

TABLE OF CONTENTS - Continued

Page

C. Congress And The States Have Been Un-

able To Clarify CWA Jurisdiction Follow-

ee «

Vv

TABLE OF AUTHORITIES

Page

CASES

FERC v. Mississippi, 456 U.S. 742 (1982) .0.0.0.... ccc ccceeeeeees 5

Headwaters, Inc. v. Talent Irrigation District, 243

UU aaa iaenatnies 9

In re Needham, 354 F.3d 340 (5th Cir. 2003).................... 10

Missouri v. Holland, 252 U.S. 416 (1920) .............c ccc 6

Rice v. Harken Exploration Corp., 250 F.3d 264 (5th

Sa a crececihtsencsiericceccibiieipaitencipiaiicanhtiiiniiiimaiinipeaciatnauiiit 9, 10

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531 U.S.

EEE cxecunsenenecctactecsinimmenanitneninienenmecnitiel passim

Treacy v. Newdunn Associates, LLP, 344 F.3d 407

STII SnITIITTE cconccsdestecnsinenntensancnndamsesteiditiomnsimbinndhametbiiaeimeste 9

United States v. Deaton, 332 F.3d 698 (4th Cir.

2003), cert. denied, 541 U.S. 972 (2004).............. eee 9

United States v. Lopez, 514 U.S. 549 (1995)................ 5, 6, 7

United States v. Rapanos, 339 F.3d 447 (6th Cir.

TT ccicnecnriceiemtereentntaiatttaanitahniaitareiniidaitatiibialiiniieibacaniaadaiasicitaaiiaiiaiainaa 9

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

Se ey TEI ictcinecsticthestincintinptcandinapnenopmeaiaieesiimanattanediiimaati 9

United States v. Rueth Development Company, 335

F.3d 598 (7th Cir. 2003), cert. denied, 540 U.S.

Se ee ccrececnesnetntentnsssesnstotnnmiuntinimensiiananniiuaiiiniial 9

CONSTITUTIONAL PROVISION

ee GED, GTI, Fi ccerencccnccsntnenesmnsnnnninenanisiinaniiniaiiaiiiiaiaiaiias 5

vi

TABLE OF AUTHORITIES -— Continued

Page

STATUTES

I We eee 5

33 U.S.C. § 1344(a), Section 404(a), Clean Water

anit nie ade iuieahatakage leant anemia iidiaialineltas 2,3

UR UNNI On Tesi eeiiatatneain tein clheeiieticigeid 3

RULES AND REGULATIONS

I tities 4

I iis 4

SE I TTT nics ieiecirmectadistcahteaiaanieiabinilianadieatainicimatiis 4

CI ITT criss instternerrntiainencnnieniasimnnntiiiaiimaimmeemensiaees 10

te EE ccccisccinnnncncccancccniintcincinmidinniniains 1

ee 1

LEGISLATION

CWARA (Clean Water Authority Restoration Act) of

2002, H.R. 5194, 107th Cong., 2d Sess. (2002)............. 13

CWARA of 2002, S. 2780, 107th Cong., 2d Sess.

SEIT hastcnsisiahoniei ieee lblanlaehieinaanetiaineiatiatcesiiciasiiatiahitiaclitiniss 13

CWARA of 2003, H.R. 962, 108th Cong., 1st Sess.

SrTrIrTccettetetnsiperiseannperithiaenalenaiiananhaieiaeatiiatainiahderinsenateimentaatitaabiaiaesis 13

CWARA of 2003, S. 473, 108th Cong., Ist Sess.

TIT assiaisshassiaitgeatethinapeinainiasiapmedaiapimnennaiannitinadaeetdtiiaebeaiass 13

ED crscceusansencsssssninemnosensennsensesssscevensntenmmnsmmsensnmeenen 13, 14

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES

Advanced Notice of Proposed Rule Making on the

Clean Water Act Regulatory Definition of “Wa-

ters of the United States,” 68 Fed. Reg. 1,991

ID Tie TE rreesienennaienntdennitbeadinemmeabinnitiintens

EPA-Corps News Release, January 10, 2003,

available at http://www.epa.gov/owow/wetlands/

Jason Killheffer, Connecticut’s Inland Wetlands &

Watercourses Act After Queach v. Inland Wet-

lands Commission: A “Safe Harbor” In a Sea of

Regulatory Confusion, 23 QLR 1149, 1149-50

GD centesesetnssemannsenssscnssenssssmentensemseesmnenansemmnanasnnian

John Kusler, The SWANCC Decision; State Regulation

of Wetlands to Fill the Gap, March 4, 2004, available

at http//www.aswm.org/swp/theSWANCCdecision9.

Joint Memorandum, Supreme Court Ruling Con-

cerning CWA Jurisdiction over Isolated Waters,

68 Fed. Reg. 1,995 (January 15, 2003), available

at http://www.epa.gov/owow/wetlands/guidance/

SWANCC/Joint_Memo. pdf ..................ccsceeeeeeeeeeeeeeees

Page

ee

1

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Mountain States Legal Foundation (“MSLF”) respect-

fully submits this amicus curiae brief in support of Peti-

tioners: John A. Rapanos; Judith A. Nelkie Rapanos;

Prodo, Inc.; Rolling Meadows Hunt Club; and Pine River

Bluff Estates, Inc. (collectively, “the Rapanos”). Pursuant

to Supreme Court Rule 37(2)(a), this amicus curiae brief is

filed with the written consent of all the parties.’

¢

IDENTITY AND INTEREST

OF AMICUS CURIAE

MSLF is a non-profit, membership public interest law

foundation dedicated to bringing before the courts those

issues vital to the defense and preservation of individual

liberties, the right to own and use property, limited and

ethical government, and the free enterprise system.

MSLF’s members include businesses and individuals who

live and work in nearly every state of the country. A large

number of MSLF’s members work in businesses involved

in the utilization and development of natural resources

and, as a result, are involved actively in many environ-

mental issues. Moreover, MSLF and its members have an

interest in ensuring that federal laws and regulations,

including the Clean Water Act, are implemented and

" Copies of the consent letters have been filed with the Clerk of the

Court. In compliance with Supreme Court Rule 37(6), MSLF represents

that no counsel for any party authored this brief in whole or in part and

that no person or entity, other than MSLF, made a monetary contribu-

tion to the preparation or submission of this brief.

2

enforced in a manner consistent with the Constitution of

the United States.

¢

INTRODUCTION

The Rapanos are accused of filling wetlands on their

several properties without a federal permit in purported

violation of section 404(a) of the Clean Water Act (“CWA”),

33 U.S.C. § 1344(a). The properties at issue entail non-

navigable, intrastate wetlands that do not abut traditional

navigable waters, but instead are separated, by as far as

20 miles, from the nearest navigable waters. Yet, despite

that these remote wetlands are not adjacent to waters of

the United States and have only attenuated connection to

navigable waters, the federal government has asserted

jurisdiction under section 404 of the CWA over these

properties of the Rapanos.

To the detriment of private land owners and in conflict

with the authority of States to ~gulate their own land, the

federal government has emp... 2d an expansive interpre-

tation of its jurisdiction over “waters of the United States.”

The federal government now interprets its jurisdictional

authority under the CWA to include “adjacent waters” of

wetlands where the only purported nexus between the

wetlands and navigable waters is the mere presence of a

hydrological connection. Pet. App. Al6. Such an expansive

interpretation of the CWA has never been sustained by

this Court and was rejected in Solid Waste Agency of

Northern Cook County v. United States Army Corps of

Engineers, 531 U.S. 159 (2001) (““SWANCC”). Moreover,

the federal government’s interpretation of its jurisdictional

authority under the CWA raises serious constitutional

ee.

3

questions and has created a distinct conflict among the

Courts of Appeals and confusion among administrative

agencies and the States that only this Court can resolve.

+

ARGUMENT IN SUPPORT OF PETITION

I. THE SIXTH CIRCUIT’S RULING, EXTENDING

CLEAN WATER ACT JURISDICTION TO ISO-

LATED, INTRASTATE WETLANDS WITH ANY

HYDROLOGICAL CONNECTION TO NAVIGA-

BLE WATERS, EXCEEDS CONGRESS’ POWER

UNDER THE COMMERCE CLAUSE AND IN-

TRUDES ON TRADITIONAL STATE RIGHTS.

The Sixth Circuit, in upholding the federal govern-

ment’s regulation of remote wetlands on the Rapanos’

properties, has misinterpreted the jurisdictional limita-

tions of the CWA.’ The current federal regulations provide

* The CWA requires landowners to obtain permits from the U.S.

Army Corps of Engineers (“Corps”) before they discharge fill material

into “navigable waters.” 33 U.S.C. § 1344(a). Congress has defined

“navigable waters” as “waters of the United States, including the

territorial seas.” Jd. at § 1362(7). The Environmental Protection Agency

(“EPA”) and the Corps have defined “waters of the United States” to

include:

(1) All waters which are currently used, or were used in

the past, or may be susceptible to use in interstate or for-

eign commerce, including all waters which are subject to the

ebb and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers,

streams (including intermittent streams), mudflats, sand-

flats, wetlands, sloughs, prairie potholes, wet meadows,

playa lakes, or natural ponds, the use, degradation or de-

struction of which could affect interstate or foreign com-

merce[ };

(Continued on following page)

4

a very broad definition of “waters of the United States,”

encompassing wetlands adjacent to other bodies of water

(other than waters that are themselves wetlands). See, 33

C.FR. § 328.3(a); 40 C.F.R. § 122.2. However, federal regula-

tions are far more explicit in defining “adjacent” as “border-

ing, contiguous, or neighboring,” 33 C.F.R. § 328.3(c), and

“adjacent wetlands” as “wetlands separated from other

waters of the United States by man-made dikes or barri-

ers, natural river berms, beach dunes and the like,” Jd.

Yet, the Sixth Circuit concluded that isolated, intrastate

wetlands on the Rapanos’ properties are subject to federal

control under the CWA because of the presence of a “hy-

drological connection” establishing a “significant nexus

between the wetlands and ‘navigable waters.’” Pet. App.

Al6. The Sixth Circuit reached this conclusion despite

acknowledging that the wetlands on the Rapanos’ proper-

ties are not physically adjacent to, or directly abutting,

any navigable water. If the federal government may

regulate all waters with a hydrological connection to any

navigable water, no matter how tenuous or remote the

connection, there is virtually no land that the government

(4) All impoundments of waters otherwise defined as wa-

ters of the United States under the definition;

(5) Tributaries of waters identified in paragraphs (a)(1)-(4)

of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that

are themselves wetlands) identified in paragraphs (a)(1)-(6)

of this section.

33 C.F.R. § 328.3(a) (Corps); see also, 40 C.F.R. § 122.2 (EPA). The term

“adjacent” is also defined as “bordering, contiguous, or neighboring.” 33

C.F.R. §328.3(c). Finally, “adjacent wetlands” include “wetlands

separated from other waters of the United States by man-made dikes or

barriers, natural river berms, beach dunes and the like.” Jd.

5

may not regulate through its power under the Commerce

Clause.

The Sixth Circuit’s holding disregards totally this

Court’s Commerce Clause jurisprudence and will, if

allowed to stand, permit the federal government to utilize

the CWA to regulate private property in every State with

no constitutional limit. Moreover, this broadening of

federal jurisdiction under the CWA does not just limit the

rights of landowners; it encroaches upon the very rights of

the states themselves to regulate lands within their

borders. Land-use planning, regulation, and zoning are

not enumerated powers granted to the federal govern-

ment. They are the basic, fundamental functions of local

governmental entities. Authority over these functions is

reserved, traditionally, to the States under the Tenth

Amendment. See, SWANCC, 531 U.S. at 174 (recognizing

the “States’ traditional and primary power over land and

water use”); FERC v. Mississippi, 456 U.S. 742, 768 n.30

(1982) (“regulation of land use is perhaps the quintessen-

tial state activity”); see also, 33 U.S.C. § 1251(b) (“It is the

policy of the Congress to recognize, preserve, and protect

the primary responsibilities and rights of States ... to

plan the development and use .. . of land and water. . . .”).

In United States v. Lopez, this Court suggested that,

whenever Congress attempts to regulate areas tradition-

ally regulated by state or local governments, including

the rights of private property owners, this Court will

review that legislation with caution. 514 U.S. 549, 557-68

(1995). Foretelling the scrutiny it would apply, this Court

rejected, in Lopez, the “costs of crime” and “national

productivity” justifications for the Gun-Free School Zones

Act (“GFSZA”) proffered by Congress both because, had it

accepted those justifications, it would be “difficult to

6

perceive any limitation on federal power, even in areas

such as criminal law enforcement or education where

States historically have been sovereign,” id. at 564, and

because such a broad reading of the Commerce Clause

would undermine the federal system of government. Jd. at

561, n.3, 564, 567-68.

Likewise, in SWANCC, congressional authority under

the Commerce Clause was tested. In SWANCC, this Court

addressed whether the EPA and the Corps could regulate

isolated intrastate waters and wetlands that are not

connected or adjacent to navigable waters “based on their

actual or potential use as habitat for migratory birds.”

SWANCC, 531 U.S. at 163-64. This Court held that the

migratory bird regulation was invalid because Congress

did not intend to include “isolated” wetlands or waters

within the term “navigable waters” when it enacted the

CWA. Id. at 162-63.

Although the SWANCC decision did not decide

whether federal regulation of isolated intrastate wetlands

exceeded congressional authority under the Commerce

Clause, this Court did suggest that the Corps’ interpreta-

tion may have exceeded that authority. Jd. at 172-73. This

Court indicated that the Corps’ regulation of isolated

intrastate wetlands would raise serious questions under

the Commerce Clause because local land use regulation is

a traditional state and local function. Jd. at 172-74. Even

though previous rulings had found that migratory bird

protection was a “national interest of very nearly the first

magnitude,” this Court determined it was “not clear”

whether the regulated activity or object, in the aggregate,

affects interstate commerce. Jd. at 173 (quoting Missouri v.

Holland, 252 U.S. 416, 435 (1920)). Because there was no

clear statement in the CWA that Congress intended to give

7

the federal government authority over isolated wetlands,

this Court refused to interpret the regulation to include

“federal jurisdiction over ponds and mudflats falling with

the ‘Migratory Bird Rule’ [that] would result in a signifi-

cant impingement of the States’ traditional and primary

power over land and water use.” Jd. at 174.

Because local land use and private property rights are

necessarily intertwined, this Court’s holdings in Lopez and

SWANCC control in this matter. The Sixth Circuit’s

extension of federal jurisdiction under the CWA to iso-

lated, intrastate wetlands that do not abut traditional

navigable water substantially intrudes on the rights of the

Rapanos, as private landowners, and on the sovereign

power of the State to control local land. Justice Kennedy,

concurring in the Lopez decision, argued that courts

should be hesitant to allow Congress to use the Commerce

Clause as its basis for federal regulation in an “area of

traditional state concern” that “States lay claim [to] by

right of history and expertise.” Lopez, 514 U.S. at 580, 583

(Kennedy, J., concurring). Justice Kennedy elaborated

that, with such an expansive definition of the Commerce

Clause, “the boundaries between the spheres of federal

and state authority would blur and political responsibility

would become illusory.” Jd. at 577.

Accordingly, the Sixth Circuit’s upholding of the

federal government’s regulation of isolated, intrastate

wetlands, such as the Rapanos’ property, intrudes uncon-

stitutionally on the rights of private landowners to use

their land and the responsibilities of States to regulate

local land use. The repercussions of such unbounded

federal authority over “waters of the United States” are

far-reaching and substantial. Without this Court’s clarifi-

cation, the rights of private land owners and the authority

8

of States to regulate their own land shall remain unconsti-

tutionally burdened. Thus, this Court should grant the

Petition.

™

Il. ONLY THIS COURT MAY RESOLVE THE CON-

FLICT AND CONFUSION AMONG THE COURTS

OF APPEALS, ADMINISTRATIVE AGENCIES,

AND STATES OVER THE SCOPE OF FEDERAL

JURISDICTION UNDER THE CLEAN WATER

ACT.

In holding that isolated, intrastate wetlands on the

Rapanos’ properties are subject to federal control under

the CWA because of the presence of a “hydrological connec-

tion” establishing a “significant nexus between the wet-

lands and ‘navigable waters,’” Pet. App. A16, the decision

of the Sixth Circuit attests to the conflict and confusion

over the scope of federal jurisdiction under the CWA

following this Court’s decision in SWANCC. The federal

government’s interpretation of its jurisdictional authority

under the CWA raises serious constitutional questions and

has created a distinct conflict among the Courts of Appeals

and confusion among administrative agencies and the

States that only this Court may resolve.

A. There Is A Split In The Courts Of Appeals

Following SWANCC.

In this case, the Sixth Circuit has adopted a narrow

construction of this Court’s decision in SWANCC. Indeed,

the Sixth Circuit noted that “the majority of courts have

interpreted SWANCC narrowly to hold that while the CWA

does not reach isolated waters having no hydrological

connection with navigable waters, it does reach inland

9

waters that share a hydrological connection with naviga-

ble waters.” Pet. App. Al4-A15. Under the Sixth Circuit’s

interpretation, and contrary to precedent of this Court,

physical adjacency between a wetland and navigable

water is not required to establish CWA jurisdiction.‘ See,

Pet. App. Al4. The presence of any hydrological connec-

tion, no matter how slight, then is enough to establish a

“significant nexus between the wetlands and ‘navigable

waters,’” which is all that the Sixth Circuit would require

for federal CWA jurisdiction over “adjacent waters.” Pet.

App. Al6.

However, the Fifth Circuit construed SWANCC

broadly in Rice v. Harken Exploration Corp., 250 F.3d 264,

269 (5th Cir. 2001), noting that, according to this Court’s

reasoning in SWANCC, a body of water is subject to CWA

jurisdiction only if it “is actually navigable or is adjacent

to an open body of navigable water.” Although Rice ad-

dressed the Oil Pollution Act (“OPA”), the Fifth Circuit

held that the phrase “navigable waters” has the same

meaning in the OPA as it does in the CWA. Id. at 267.

* The Sixth Circuit noted a narrow interpretation of SWANCC in

the following cases: United States v. Rapanos, 339 F.3d 447, 453 (6th

Cir. 2003); Treacy v. Newdunn Associates, LLP, 344 F.3d 407, 415 (4th

Cir. 2003); United States v. Deaton, 332 F.3d 698, 702 (4th Cir. 2003),

cert. denied, 541 U.S. 972 (2004); United States v. Rueth Development

Company, 335 F.3d 598, 604 (7th Cir. 2003), cert. denied, 540 U.S. 1050

(2003); Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526, 533-

34 (9th Cir. 2001).

* See, United States v. Riverside Bayview Homes, Inc., 474 U.S.

121, 134-39 (1985) (holding that federal jurisdiction under the CWA

extended to wetlands adjacent to navigable waters); SWANCC, 531 U.S.

at 167-68 (explaining this Court’s decision in Riverside Bayview

Homes).

10

The Fifth Circuit reaffirmed its broad interpretation

of SWANCC in In re Needham, 354 F.3d 340 (5th Cir.

2003). Like Rice, In re Needham involved the OPA, and

like Rice, In re Needham noted that the OPA’s definition of

“navigable waters” is “co-extensive with the definition

found in the [CWA].” In re Needham, 354 F.3d at 344. The

Fifth Circuit rejected the government’s argument that the

OPA covered “all waters, excluding groundwater, that have

any hydrological connection with ‘navigable water.’” Jd. at

345 (citing 40 C.F.R. § 300.5). In re Needham held that

“(t]he CWA and the OPA are not so broad as to permit the

federal government to impose regulations over ‘tributaries’

that are neither themselves navigable nor truly adjacent

to navigable waters.” Id. As noted by the Sixth Circuit, the

In re Needham decision conflicts with decisions from the

Fourth, Sixth, Seventh, and Ninth Circuits concluding

that, under SWANCC, “water exhibiting a hydrological

connection with ‘navigable water’ should be considered

part of the ‘waters of the United States.’” Pet. App. Al4.

These varying interpretations of SWANCC have

resulted in a split of authority among the Courts of Ap-

peals as to whether federal jurisdiction under the CWA

extends to intrastate, nonnavigable wetlands that do not

abut traditional navigable waters. Thus, to resolve this

conflict involving an important question of law, this Court

should grant the Petition.

B. The Response Of The Corps And EPA To

SWANCC Fails To Resolve The Dispute

Over Federal CWA Jurisdiction.

On January 19, 2001, ten days after this Court issued

its decision in SWANCC, the Corps and EPA published a

joint memorandum of agreement narrowly interpreting

11

federal CWA jurisdiction in light of the decision. See, Joint

Memorandum, Supreme Court Ruling Concerning CWA

Jurisdiction over Isolated Waters, 68 Fed. Reg. 1,995

(January 15, 2003), available at http://www.epa.gov/owow/

wetlands/guidance/SWANCC/Joint_Memo.pdf. That memo-

randum provides guidance to Corps field personnel that

they should continue to assert jurisdiction over wetlands

to the full extent uf their authority, with the exception of

using the “Migratory Bird Rule.” Jd. In particular, the

guidance stresses that both interstate and navigable

waters and their tributaries remain jurisdictional, as do

the wetlands adjacent to each. Jd. It also suggests that

isolated, nonnavigable, intrastate waters might be juris-

dictional to the extent that the degradation of these waters

affects jurisdictional waters. Jd. However, the memoran-

dum failed to provide much guidance on the meaning of

important terms in the SWANCC decision such as “signifi-

cant nexus,” “adjacent,” and “tributary.”

On January 10, 2003, the Corps and EPA issued a

joint news release vowing to protect America’s wetlands

and again asserting their narrow interpretation of this

Court’s holding in SWANCC. See, EPA-Corps News Release,

January 10, 2003, available at http://www.epa.gov/owow/

wetlands/Press-Logo.pdf. That statement announced that

the agencies were issuing advance notice of proposed

rulemaking to “solicit from the public data and information

to clarify the extent of the Clean Water Act coverage in light

of SWANCC.”™ Id. In addition to inviting public comment on

a proposed rule, the news release also highlighted the

* See also, Advanced Notice of Proposed Rule Making on the Clean

Water Act Regulatory Definition of “Waters of the United States,” 68

Fed. Reg. 1,991 (January 15, 2003).

12

important role of States in protecting waters outside of the

scope of federal jurisdiction following SWANCC. Id.

The Corps also provided the following clarifications

concerning its jurisdictional view over wetlands:

(1) Field staff should continue to assert juris-

diction over traditional navigable waters (and

adjacent wetlands) and, generally speaking, their

tributary systems (and adjacent wetlands).

(2) In light of SWANCC, field staff should not

assert CWA jurisdiction over isolated waters that

are both intrastate and non-navigable, where the

sole basis available for asserting CWA jurisdic-

tion rests on any of the factors listed in “Migra-

tory Bird Rule.” (3) In light of SWANCC, field

staff should seek formal project-specific HQ ap-

proval prior to asserting jurisdiction over isolated

non-navigable intrastate waters based on other

types of interstate commerce links listed in cur-

rent regulatory definitions of “waters of the US.”

Id. The news release further highlighted that “[a]lthough

the SWANCC decision limits federal CWA jurisdiction over

isolated, intrastate, non-navigable waters and wetlands,

other federal or State laws and programs still cover these

waters and wetlands.” Jd.

To date, no new rules have been issued by the Corps

or EPA addressing federal CWA jurisdiction. Thus, while

the Corps and EPA attempt to diminish the effect and

reach of this Court’s holding in SWANCC, it is unclear

whether further regulations will have a determinative

effect on the future scope of federal jurisdiction under the

CWA. Yet, it is certain that the response of the Corps and

EPA to SWANCC has failed to resolve the dispute over

: a a te

13

federal CWA jurisdiction. Accordingly, this Court should

grant the Petition to resolve this dispute.

C. Congress And The States Have Been Unable

To Clarify CWA Jurisdiction Following

SWANCC.

Congressional response to SWANCC is unlikely to

occur through either amendment to the CWA or more

sweeping wetlands regulation, thus, leaving the federal

government uninhibited from expanding its jurisdictional

reach under the CWA to isolated, nonnavigable, intrastate

waters. This is evident with two failed attempts by Con-

gress to enact versions of the Clean Water Authority

Restoration Act (“CWARA”) in 2002 and 2003. See,

CWARA of 2002, S. 2780, 107th Cong., 2d Sess. (2002);

CWARA of 2002, H.R. 5194, 107th Cong., 2d Sess. (2002);

CWARA of 2003, S. 473, 108th Cong., lst Sess. (2003);

CWARA of 2003, H.R. 962, 108th Cong., 1st Sess. (2003).

Both versions proposed unsuccessfully to redefine the

intent of Congress to extend protection under the CWA to

all wetlands, including isolated, intrastate waters.

On March 17, 2005, a third version of the CWARA was

introduced in the House of Representatives. See, CWARA

of 2005, H.R. 1356, 109th Cong., 1st Sess. (2005). Like its

predecessors, the CWARA of 2005 would delete the term

“navigable waters of the United States” from the CWA and

replace it with a broad definition of “waters of the United

States.” Jd. Regardless of what Congress does, this Court

* Under the CWARA of 2005, “waters of the United States” would

be defined as “all waters subject to the ebb and flow of the tide, the

territorial seas, and all interstate and intrastate waters and their

tributaries, including lakes, rivers, streams (including intermittent

(Continued on following page)

14

must address, as is requested by Petitioner in this case,

whether the Commerce Clause gives Congress the author-

ity to regulate isolated, intrastate wetlands in light of

SWANCC.

SWANCC undoubtedly has provided an opportunity

for States to employ their regulatory authority over land

and waters to demonstrate their commitment to wetland

protection. See, Part I, supra. At the time of this Court’s

decision in SWANCC, only fifteen States had laws in place

to protect wetlands. See, John Kusler, The SWANCC

Decision; State Regulation of Wetlands to Fill the Gap,

March 4, 2004, available at http://)www.aswm.org/swp/

theSWANCCdecision9.pdf. However, since the SWANCC

decision, many States have implemented statutes aimed at

protecting wetlands, while many others are attempting to

modify current water pollution statutes to include wet-

lands protection. See, Jason Killheffer, Connecticut's

Inland Wetlands & Watercourses Act After Queach v.

Inland Wetlands Commission: A “Safe Harbor” In a Sea of

Regulatory Confusion, 23 QLR 1149, 1149-50 (2004).

Further such action by the States, consistent with their

authority under the Constitution, must await a ruling

from this Court confining Congress to its limited constitu-

tional role under the Commerce Clause.

Accordingly, the conflict and confusion among the

Courts of Appeals, administrative agencies, and the States

over the scope of federal jurisdiction under the CWA may

streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet

meadows, playa lakes, natural ponds, and all impoundments of the

foregoing, to the fullest extent that these waters, or activities affecting

these waters, are subject to the legislative power of Congress under the

Constitution.” H.R. 1356, §§ 4-5.

15

be resolved only by this Court. Thus, this Court should

grant the Petition.

¢

CONCLUSION

For the foregoing reasons, Mountain States Legal

Foundation respectfully requests that this Court grant the

Petition for Writ of Certiorari.

Respectfully submitted,

WILLIAM PERRY PENDLEY, Esq.*

*Counsel of Record

CHRISTOPHER T. MASSEY, Esq.

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

Dated: April 4, 2005