Amicus Curiae Brief — Rapanos v. United States

/ APR 4 - 2005 |

OFFICE OF THE CLERK |

No. 04-1034

In The

Supreme Court of the United States

JOHN A. RAPANOS,

Petitioner,

Vv

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals For The Sixth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF THE PETITIONER

Duane J. Desiderio

(Counsel of Record)

Thomas J. Ward

Felicia K. Watson

National Association of

Home Builders

1201 15" Street, N.W.

Washington, D.C. 20005

(202) 866-8200

F NTS

This Court Should Resolve the Circuit Split on the

Scope of CWA Jurisdiction Over Non-navigable

ES Re ce 4

A. Ax the Court Below Recognized, Determining the

“Precise Boundary” of Areas Covered by the

Clean Water Act Remains “Difficult.” ................. 5

B. Fourth and Sixth Circuits: “Hydrological

Connection” to Navigable Waters. . ...................... 6

C. Fifth Circuit: “Actually Navigable Waters” and

Waters “Truly” Adjacent to Them. ..................... 10

D. Second Circuit: “Actual Discharge” of Pollutants

ET I iis cicareteeataninmteneiomnensons 12

The Confusion Created by the Regulatory Agencies

in the Field Should Compel This Court’s

EEE See 14

A. Congress Has Recognized the Agencies’

Haphazard Implementation of “Navigable

I, linc catcnedencinmnennsonnein 15

B. The General Accounting Office Has Reported on

Rampant Regulatory Inconsistencies. ................ 17

C. Whether Federal Regulators Assert CWA

Jurisdiction Now Depends on the Geographic TABLE OF AUTHORITIES

Jurisdiction of the Various Courts of Appeal, Not

on a Consistent Regulatory Program. ................. 19 CASES) - Page(s)

Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or.,

Oe 20

a I aT 14

Chevron, U.S.A. v. Natural Resources Defense Council,

ac 19

FD&P Enterprises, Inc. v. U.S. Army Corps of Eng'rs,

239 F. Supp. 2d 509 (D. N.J. 2003) .........cccccccceeeeeceeeeees 11

In re Needham, 354 F.3d 340

Cee scusasusesonens 10, 11

Rice v. Harken Exploration Co., 250 F.3d 264

Cee eseseususonanons 10, 11

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

Corps of Eng'rs, 531 U.S. 159 (2001) .............000004. passim

Treacy v. Newdunn Assocs., LLP, 334 F.3d 416 (4" Cir.

2003), cert. denied, 124 S. Ct. 1874 (2004)... 5

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

cert. denied, 124 S. Ct. 1874

la 4,6, 7,9, 10, 13, 15, 19

United States v. Rapanos, 190 F. Supp. 2d 1011 (E.D.

a NR 6,7

United States v. Rapanos, 339 F.3d 447 (6" Cir. 2003),

cert. denied, 124 S. Ct. 1875 (2004) ..........00... 4, 6, 7,9, 10

iV

United States v. Rapanos, 376 F.3d 629 (6" Cir. 2004),

petition for cert. filed, 73 U.S.L.W. 3466 (U.S. January

a 4,5,6,7,9

United States v. Riverside Bayview Homes, Inc.,

GO Care Ge ctrnnsecceccnnnntionnniinn 5, 8,9, 10, 11

United States v. Rueth Dev. Co., 335 F.3d 598 (7" Cir.),

cert. denied, 540 U.S. 1050 (2003) ........cccccccccccceeeeeneeeeeeees 5

Waterkeeper Alliance, Inc. v. U.S. Envtl. Protection

Agency, 399 F.3d 486 (2d Cir. 2005) .........c.ccccccceeeeees 12, 13

STATUTES

Fe ellie © BEG ccerretenneensneceniconsennansinnsteteieennnassiiintiteinnianiiin 2

FO a © BI ceennsensternastirenitinereiemntttnetinninien 12

FP ae © Ce crencernctsinnnniniinniotaennaninnncininiaiaien 12

FD TREE 6 Fa ceccennessesnstitninaisittininitenninninnapineniines 2,12

REGULATIONS

Advanced Notice of Proposed Rulemaking on the Clean

Water Act Regulatory Definition of “Waters of the

United States,” 68 Fed. Reg. 1991

RS Tis Se icrnntindtensesmseenennnesimmniiniiiiin 16, 17

OTHER

Agency Implementation of the SWANCC Decision:

Hearing Before the Subcomm. on Energy Policy,

Natural Resources & Regulatory Affairs of the Comm.

on Gov’ Reform, No. 107-230, 107" Cong. 2d Sess.

SUETETEE cnrcitecnipscepemiotinentntennensentepedaiinhitmednennemdnaiaineianes 15, 16

Brief of Amici Curiae of the Building Industry Legal

Defense Foundation, ef al. in Support of Petitioners, United

States v. Deaton, 332 F.3d 698 (4" Cir. 2003), petition for

cert. filed, 92 U.S.L.W. 3356 (U.S. Nov. 13, 2003)

SS Pe cccisrcnshintininntinennnseannniataiemaaemeianadiin 15, 16

Petition for Writ of Certiorari, United States v. Deaton, 332

F.3d 698 (4" Cir. 2003), petition for cert. filed, 92

U.S.L.W. 3356 (U.S. Nov. 13, 2003) (No. 03-701)......... 13

Press Release, Environmental Protection Agency & U.S.

Army Corps of Engineers, EPA and Army Corps Issue

Wetlands Decision (December 16, 2003) .................. 16, 17

U.S. General Accounting Office, Report to the Chairman,

Subcomm. on Energy Policy, Natural Resources &

Regulatory Affairs, Comm. on Gov’t Reform, House of

Representatives, Waters and Wetlands: Corps of Engineers

Needs to Evaluate Its District Office Practices in

Determining Jurisdiction, GAQ-04-297

SR caves ITE iesitnibrtieniinteininiinientiiienpeitnciadideeniremets 3,4, 17, 18

W. Page Keeton et al., Prosser and Keeton on Torts

Ot Oe, I a ocececcccccccecetntenececesmsnscccnsunesnniensnnanen 14

Campfire Songs, Dry Bones, YMCA Camp Loowit. ........ 8

’

‘

INTEREST OF THE AMICUS CURIAE

The National Association of Home _ Builders

(“NAHB”) has received the parties’ written consent to file

this brief as amicus curiae in support of Petitioner. Letters

of consent have been filed with the Clerk of the Court.'

NAHB represents over 220,000 builder and associate

members throughout the United States. Its members

include not only individuals and firms that construct and

supply single-family homes, but also apartment,

condominium, multi-family, commercial and industrial

builders, land developers and remodelers. NAHB is the

voice of the American shelter industry. Through the

regular course of operating their businesses, NAHB’s

members are frequently subject to regulations under the

Clean Water Act (“CWA”). In that regard, NAHB has

developed intimate familiarity with the CWA’s permitting

requirements, advises its members on compliance issues,

and, unfortunately, has been witness to numerous situations

where federal regulators have attempted to expand the

scope of their authority beyond congressionally authorized

parameters. NAHB has thus been before the Court as

amicus curiae or “of counsel” in a number of cases

involving landowners who have been aggrieved by

government over-regulation under the CWA and other

statutes and programs.”

' Pursuant to Rule 37.6 of this Court, NAHB states that its

counsel authored this brief. The brief was not written in whole

or part by counsel for a party, and no one other than amicus

made a monetary contribution to its preparation.

2 These include Agins v. City of Tiburon, 447 U.S. 255 (1980);

San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621

(1981); Williamson County Reg'] Planning Comm'n v. Hamilton

SUMMARY OF THE ARGUMENT

1. Circuit Conflict: There is a conflict between the

courts of appeal on the proper test for determining when a

non-navigable feature is a “navigable water” under the

Clean Water Act (“CWA” or the “Act”).

Bank ‘of Johnson City, 473 U.S. 172 (1985); MacDonald,

Sommer & Frates v. Yolo County, 477 U.S. 340 (1986); First

English Evangelical Lutheran Church of Glendale v. Los

Angeles County, 482 U.S. 304 (1987); Nollan v. Calif. Coastal

Comm'n, 483 U.S. 825 (1987); 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 Great 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 Island, 533 U.S. 606 (2001); Tahoe-Sierra Pres. Council,

Inc. v. Tahoe Reg'l 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. i88 (2003); S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004); Kelo v. City of New

London, 843 A.2d 500 (Conn.), cert. granted, 125 S. Ct. 27 (U.S.

Sept. 28, 2004) (No. 04-108); Lingle v. Chevron U.S.A., Inc., 363

F.3d 846 (9" Cir.), cert. granted, 125 S. Ct. 314 (U.S. Oct. 12,

2004) (No. 04-163); and San Remo Hotel, L.P. v. City & County

of San Francisco, 364 F.3d 1088 (9" Cir.), cert. granted in part,

125 S. Ct. 685 (U.S. Dec. 10, 2004) (No. 04-340).

> Unless permitted, the CWA prohibits discharges of pollutants

from point sources into “navigable waters.” 33 U.S.C. §§

1311(a), 1362(12). “Navigable waters” is defined to mean “the

waters of the United States, including the territorial seas.” Jd. §

1362(7).

e The Sixth Circuit (in the opinion below and in a prior

decision) and the Fourth Circuit have adopted an

expansive, virtually limitless theory of CWA

jurisdiction. They endorse an approach that allows the

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

Environmental Protection Agency (“EPA”) to assert

control over non-navigable features like ordinary

ditches, drains and swales, merely if they have some

“hydrological connection” to navigable waters.

e The Fifth Circuit, however, has expressly rejected the

“hydrological connection” theory as the basis for CWA

jurisdiction. Instead, it requires a “direct, proximate”

connection between non-navigable and navigable

waters, and has thus extended CWA jurisdiction only if

a water is actually navigable or physically adjacent

thereto.

e The Second Circuit takes an intermediate approach. It

recently held that the assertion of federal CWA

jurisdiction requires the showing of an “actual

discharge” of pollutants into navigable waters. It thus

requires more than a “hydrological connection” to

navigable waters, but does not constrain CWA

jurisdiction to actually navigable waters and abutting

non-navigable features.

2. Regulatory Confusion: Not surprisingly, the split

in the courts has manifested itself as chaos in the field.

According to a report issued by the United States General

Accounting Office,* “three different district staff’ of the

* U.S. General Accounting Office, Report to the Chairman,

Subcomm. on Energy Policy, Natural Resources & Regulatory

Affairs, Comm. on Gov’t Reform, House of Representatives,

4

Corps would likely make “three different assessments” as

to whether a particular non-navigable feature (like a

drainage ditch or a dry wash) is subject to CWA

jurisdiction. See GAO Report at 23. With no guidance

forthcoming from the Corps or EPA, this Court is the only

realistically available forum to make sense of the judicial

quagmire and explain to landowners and regulatory

agencies what kinds of non-navigable areas fall within (and

outside) the CWA.

ARGUMENT

I. THIS COURT SHOULD RESOLVE THE

CIRCUIT SPLIT ON THE SCOPE OF CWA

JURISDICTION OVER NON-NAVIGABLE

FEATURES.

Since the decision in Solid Waste Agency of N. Cook

County v. U.S. Army Corps of Engrs, 531 U.S. 159 (2001)

(“SWANCC’”), four petitioners, in five separate petitions,

have sought assistance from this Court on the extent to

which the CWA encompasses non-navigable features as

statutory “navigable waters.”

Waters and Wetlands: Corps of Engineers Needs to Evaluate Its

District Office Practices in Determining Jurisdiction, GAQ-04-

297 (Feb. 27, 2004) (“GAO Report”).

5 United States v. Rapanos, 376 F.3d 629 (6" Cir. 2004),

petition for cert. filed, 73 U.S.L.W. 3466 (U.S. January 28,

2005) (No. 04-1034) (“Rapanos IT” (civil appeal)); United States

v. Rapanos, 339 F.3d 447 (6" Cir. 2003), cert. denied, 124 S. Ct.

1875 (2004) (“Rapanos I(criminal appeal)); United States v.

Deaton, 332 F.3d 698 (4" Cir. 2003), cert. denied, 124 S. Ct.

1874 (2004) (“Deaton”); Treacy v. Newdunn Assocs., LLP, 344

F.3d 416 (4" Cir. 2003), cert. denied, 124 S. Ct. 1874 (2004);

A. As the Court Below Recognized, Determining

the “Precise Boundary” of Areas Covered by

the Clean Water Act Remains “Difficult.”

In its most recent opinion on the CWA’s reach (and

the subject of the current petition), the Sixth Circuit went to

great lengths to identify and discuss the contradictory

appellate cases. Rapanos II, 376 F.3d at 638-42. The

decision below pointedly recognized that determining the

“precise boundary of which waters are covered by the

CWA has been difficult.” Rapanos II, 376 F.3d at 636.°

The court of appeals believed that United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), and

SWANCC, “the two leading Supreme Court cases on the

reach of the CWA[,] have done little to clear the muddied

waters of CWA jurisdiction.” 376 F.3d at 365. In

Riverside Bayview, this Court upheld CWA jurisdiction

over non-navigable adjacent wetlands based on record

evidence that they “actually abut[ted],” and were

“inextricably intertwined” with, navigable-in-fact waters.

In SWANCC, the Court clarified Riverside Bayview in

rejecting CWA jurisdiction over non-adjacent, isolated

ponds that lacked a “significant nexus” to navigable waters.

What this Court meant by “adjacent” in Riverside

Bayview, and “significant nexus” in SWANCC, have

become the million dollar questions confronting the lower

United States v. Rueth Dev. Co., 335 F.3d 598 (7" Cir.), cert.

denied, 540 U.S. 1050 (2003).

° “Determining which wetlands are considered ‘adjacent to’

traditional navigable waters or their tributaries has proved to be a

complication in defining CWA jurisdiction.” 376 F.3d at 636.

And again, the court of appeals stated: “Determining how much

of a connection is necessary has proven difficult.” Jd.

6

courts as they grapple with deciding whether and when the

CWA encompasses non-navigable features.

B. Fourth and Sixth Circuits: “Hydrological

Connection” to Navigable Waters.

While the court of appeals recognized that the Act’s

scope “does not extend to all waters,” Rapanos II, 376 F.3d

at 635, it nonetheless extended CWA jurisdiction to all

areas with “the presence of a hydrologic connection.” /d. at

639 (citing with approval Rapanos /, 339 F.3d at 453, and

Deaton, 332 F.3d at 711-12). It further held: “Non-

navigable waters must have a hydrological connection or

some other ‘significant nexus’ to traditional navigable

waters in order to invoke CWA jurisdiction.” Rapanos I],

376 F.3d at 642 (emphasis added). The opinion below is

the spawn of the Sixth Circuit’s earlier opinion in Rapanos

J and the Fourth Circuit’s decision in Deaton, the

progenitors of the “hydrological connection” theory of

CWA jurisdiction.

As in the present case,’ in Deaton and Rapanos I, the

Corps asserted federal authority over remote drainage

ditches that were miles away from navigable waters.

Deaton, 332 F.3d at 712; Rapanos I, 339 F.3d at 452-53.

Both circuits have accepted as proper the Corps’s apparent

unrestricted ability to exert regulatory jurisdiction “over the

whole tributary system of any navigable waterway [].”

Deaton, 332 F.3d at 712; Rapanos I, 339 F.3d at 452-53.

Deaton, for example, reasoned that “any branch of a

’ Mr. Rapanos’s properties are all some distance away from

navigable-in-fact waters and more fully described in the district

court’s opinion. See, e.g., Rapanos, 190 F. Supp. 2d at 1015

(Salzburg site “roughly 20 linear miles” from navigable water).

tributary system [including ditches] that eventually flows

into a navigable body of water” is subject to CWA

requirements. 322 F.3d at 711, 712 (emphasis added).

Similarly, in Rapanos J,* the Sixth Circuit held that there

was “an ample nexus to establish jurisdiction” because Mr.

Rapanos’s wetlands were “adjacent” to a drain and a river —

“adjacent” not because of any physical proximity to

navigable-in-fact waters, but by virtue of a remote and

distant hydrological connection between the wetlands and

navigable-in-fact waters. Rapanos I, 339 F.3d at 453. In

Rapanos II, the Sixth Circuit stayed its course and again

adopted the Fourth Circuit’s “eventually flows” analysis

from Deaton. Rapanos Il, 376 F.3d at 639-40 (citing

Deaton, 332 F.3d at 711-12).

In short, the Fourth and Sixth Circuits justify federal

CWA regulation simply upon the potential that a single

molecule of water could be emitted from a non-navigable

feature and traced across the landscape, so that it may flow

into a traditional navigable water. Under this theory, it is

irrelevant whether the connection between non-na\ igable

features and navigable waters is continuous; whether that

connection is natural or man-made; whether the connection

is at the surface or subterranean; how long that connection

is; whether pollutants traverse through a hydrologic

connection and ultimately flow into navigable waters; or,

* An earlier phase of the Rapanos litigation was before this

Court around the time of SWANCC. The Court granted certiorari

in that earlier phase, 533 U.S. 913 (2001), vacated a prior Sixth

Circuit decision, and remanded for further consideration in light

of SWANCC. On remand, the district court applied SWANCC

and found no CWA jurisdiction. See United States v. Rapanos,

190 F. Supp. 2d 1011 (E.D. Mich. 2002). The Sixth Circuit then

reversed on appeal in Rapanos I, 339 F.3d 447 (6" Cir. 2003),

and this Court denied certiorari, 124 S. Ct. 1875 (2004).

8

for that matter, whether, when, or how much water exists in

such a connection. If the ankle bone is connected to the .eg

bone, and the leg bone is connected to the knee bone,’ then

federal CWA authority is supported under the Fourth and

Sixth Circuits’ limitless “hydrological connection” theory.

But such an approach is not supported by Riverside

Bayview or SWANCC. The Riverside Bayview court upheld

jurisdiction over “adjacent” wetlands because it discerned a

congressional intent to regulate wetlands that are

“inseparably bound up with the ‘waters of the United

States.’”” 474 U.S. at 134. The Court emphasized that the

wetlands in that case, described as “80 acres of low-lying

marshy land,” “actually abut[ted] on a navigable

waterway,” Black Creek. /d. at 124, 135. The SWANCC

Court also stressed tnat the Riverside Bayview wetlands

“actually abutted on a navigable waterway,” and further

observed that its’ holding in Riverside Bayview “was based

in large measure on Congress’s unequivocal acquiescence

to, and approval of, the Corps’s regulations interpreting the

CWA to cover wetlands adjacent to navigable waters.”

SWANCC, 531 U.S. at 167. SWANCC reinforced the need

for an “inseparable” relationship between non-navigable

and navigable resources: “It was the significant nexus

between the wetlands and ‘navigable waters’ that informed

our reading of the CWA in Riverside Bayview Homes.” Id.

(emphasis added). Accordingly, finding no inseparable

relationship between the non-navigable, isolated ponds at

issue in SWANCC and a body of “open water,” this Court

held that the Corps’s claim of jurisdiction “exceeds the

authority granted to [the Corps] under Section 404(a) of the

CWA.” Td. at 174.

* Campfire Songs, Dry Bones, YMCA Camp Loowit, available

at http://www.backyardgardner.com/loowit/song/song168.html.

7 <&

vw ©

Thus, while the major premise underlying Riverside

Bayview and SWANCC is a “significant nexus” to navigable

waters, the “hydrological connection” theory is premised on

something less. The purposeful choice of words selected

by the Fourth and Sixth Circuits disserves, both textually

and substantively, this Court’s “significant nexus”

requirement. In Deaton, the Fourth Circuit found “a

nexus” sufficient, reading SWANCC as “suggesting that

covered non-navigable waters are those with ‘some

connection’ to navigable ones.” Deaton, 332 F.3d at 709

(emphasis supplied). Rapanos I, relying heavily on

Deaton, found an “ample nexus” sufficient. Rapanos I, 339

F.3d at 453. In Rapanos II, the Sixth Circuit approved

these previous holdings. 376 F.3d at 642. However, this

Court never premised CWA jurisdiction on “a” nexus,

“some” connection, “eventual[] flows” or a “hydrologic

connection.” Instead, this Court applied the “significant

nexus” doctrine.

And “significant nexus” is a term that this Court

selected shrewdly, to effectuate Congress’s intent.

SWANCC, 531 U.S. at 167-68. On one hand, a “significant

nexus” analysis gives the term “‘navigable’ ... at least the

import of showing what Congress had in mind as its

authority for enacting the CWA: its traditional jurisdiction

over waters that were or had been navigable in fact or

which could reasonably be so made.” SWANCC, 531 U.S.

at 172. On the other, it recognizes Congress’s intent “to

regulate at least some waters that would not be deemed

‘navigable’ under the classical understanding of that term.”

Id. at 167 (quoting Riverside Bayview, 474 U.S. at 133). “A

nexus,” “some connection,” and “eventually flows” upset

the careful balance struck by “significant nexus.”

10

C. Fifth Circuit: “Actually Navigable Waters”

and Waters “Truly” Adjacent to Them.

Contrary to its sister circuits in Deaton and Rapanos |

and //, the Fifth Circuit has issued decisions more faithful

to SWANCC and Riverside Bayview. On two occasions, the

Fifth Circuit has flatly rejected the Corps’s overbroad

interpretation that CWA navigable waters encompass “all

waters ... that have any hydrological connection with

‘navigable water.’” In re Needham, 354 F.3d 340, 345 (5™

Cir. 2003) (“Needham”) (citing 40 C.F.R. § 300.5 (2003)).

See also Rice v. Harken Exploration Co., 250 F.3d 264,

269-70 (5" Cir. 2001) (“Rice”). Recognizing that the

Fourth Circuit in Deaton, 332 F.3d at 702, and the Sixth

Circuit in Rapanos I, 339 F.3d at 449, agreed with the

government’s “expansive treatment,” the Fifth Circuit

countered by holding as follows:

In our view, [the government’s] definition [of

“navigable waters”] is unsustainable under

SWANCC. The CWA ... [is] not so broad as to

permit the federal government to impose

regulations over “tributaries” that are neither

themselves navigable nor f¢ruly adjacent to

navigable waters. Consequently, in this circuit

the United States may not simply impose

regulations over puddles, sewers, roadside ditches

and the like; under SWANCC “a body of water is

subject to regulation ... if the body of water is

actually navigable or adjacent to an open body of

navigable water.”

Needham, 354 F.3d at 345-46 (internal citations

omitted, emphasis added) (citing Rice, 250 F.3d at

269).

Needham entrenches the view earlier announced by

the Fifth Circuit in Rice, where it interpreted SWANNC and

Riverside Bayview and held that “a body of water is subject

to [CWA] regulation ... if the body of water is actually

navigable or adjacent to an open body of navigable water.”

Rice, 250 F.3d at 269. The Rice court found nothing to

indicate that the creek at issue, or other unnamed

intermittent creeks, were “sufficiently linked” to navigable-

in-fact water. /d. at 271. The Fifth Circuit thus held that

there must be “a close, direct and proximate link between ...

[the] discharges of oil and any resulting actual, identifi .ble

oil contamination of natural surface water that satisfies the

jurisdictional requirements of the [CWA].” /d. at 272.

Moreover, Needham reaffirmed the Fifth Circuit's

actual adjacency requirement from Rice, when it held “the

term ‘adjacent’ cannot include every possible source of

water that eventually flows into a _ navigable-in-fact

waterway. Rather, adjacency necessarily implicates a

‘significant nexus’ between the water in question and the

navigable-in-fact waterway.” Needham, 354 F.3d at 346

and n.12 (citing SWANCC, 531 U.S. at 167; identifying the

Corps’s definition of “adjacent” as “bordering, contiguous,

or neighboring” in 33 C.F.R. § 328.3, and recognizing

partial invalidation of that regulation by SWANCC).

"© See also FD&P Enters., Inc. v. U.S. Army Corps of Engrs,

239 F. Supp. 2d 509, 516 (D. N.J. 2003). In FD&P, the court

followed SWANCC and held that the proper analysis for CWA

jurisdiction is the “significant nexus” test, and expressly rejected

the “hydrological connection” test. /d.

12

D. Second Circuit: “Actual Discharge” of

Pollutants to Navigable Waters.

The Second Circuit Court of Appeals has recently

offered another mode of analysis to determine the extent of

CWA jurisdiction. In Waterkeeper Alliance, Inc. v. U.S.

Envtl. Protection Agency, 399 F.3d 486 (2d Cir. 2005), the

court reviewed an EPA rule establishing CWA Section 402

permit requirements for discharges of water pollutants from

concentrated animal feeding operations (the “CAFO Rule”).

Industry groups brought a facial challenge, arguing that the

CAFO Rule was illegal because it sought to establish a duty

to apply for a Section 402 permit'' simply for a potential to

discharge pollutants. /d. at 504. The Second Circuit found

that the CAFO Rule violated the CWA’s statutory scheme

because:

In the absence of an actual addition of any

pollutant to navigable waters from any point,

there is no point source discharge, no statutory

violation, ... and no statutory obligation of point

sources to seek or obtain [a CWA] permit in the

first instance.

Id. at 50S (emphasis supplied).

Thus, the Second Circuit emphasizes that the

requirement to obtain a CWA permit depends on an actual

'' The Act’s main permit provisions are Sections 402 and 404.

Section 402 requires permits for the discharge of pollutants. 33

U.S.C. § 1342. Section 404 requires permits for the discharge of

a specific type of pollutant, namely, dredged or fi!l material. /d.

§ 1344. The jurisdictional polestar for both permits is a

“discharge,” which means “any addition of any pollutant into

navigable waters...” 33 U.S.C. § 1362(12) (emphasis supplied).

13

discharge of pollutants to navigable waters, not a mere

hydrological connection to navigable waters. In other

words, it is not simply the possible addition of water to

“navigable water,” but the actual addition of pollutants to

“navigable water,” that triggers CWA permitting

requirements in the Second Circuit.

The “actual discharge” standard from Waterkeeper

Alliance is at odds with Deaton, where the Fourth Circuit

upheld federal jurisdiction on the reasoning that a discharge

of pollutants into a non-navigable ditch “has the potential to

move downstream and degrade the quality of the navigable

waters themselves.” Deaton, 332 F.3d at 707 (emphasis

supplied); id. at 711 (CWA jurisdiction “extends to any

branch of a tributary system that eventually flows into a

navigable body of water”). As the petition for certiorari to

this Court in Deaton made clear, “there [was] nothing in the

record to suggest that dirt from the Deatons’ ditch-digging

... reached and degraded the Wicomico River.” Petition for

Writ of Certiorari at 8, United States v. Deaton, 332 F.3d

698 (4" Cir. 2003), petition for cert. filed, 92 U.S.L.W. 3356

(U.S. Nov. 13, 2003) (No. 03-701). For that matter, there

was no evidence in Deaton (or in Rapanos I or I/), that dirt

even left the sites at issue. Nonetheless, to mobilize its

expansive “hydrological connection” theory over non-

navigable features, the Fourth and Sixth Circuits found it

unnecessary to justify CWA jurisdiction by requiring an

actual discharge of pollutants to navigable waters.

The divergent tests proffered by the courts of appeal

can be understood as analogous to variant levels of

causation. The loosest causal relationship is represented by

the Fourth and Sixth Circuit’s “but for” approach, where

14

non-navigable features are deemed jurisdictional because

water in them may potentially reach “navigable waters” via a

remote hydrologic connection. The Second Circuit has

established a more proximate approach as the basis for CWA

jurisdiction, requiring an addition of pollutants (not simply a

contribution of hydrology) to navigable waters.'? And the

Fifth Circuit requires the highest causal nexus, extending

CWA authority only over actually navigable waters and non-

navigable features that physically touch them. This Court is

uniquely well-equipped to assist the lower courts with

“difficult questions of proximity and degree,” and has done

so particularly with regard to the scope of regulatory

jurisdiction under federal environmental laws. See Babbitt

v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S.

687, 708 (1995). See also id. at 712-713 (O'Connor, J.,

concurring) (using concept of proximate cause to sustain

Endangered Species Act “harm” regulation, based on the

regulation’s textual requirement of “actual[],” as opposed to

pussible, death or injury to species). Respectfully, the Court

should issue the writ of certiorari to clarify the level of

“proximity and degree” that a non-navigable feature must

bear in relation to a “navigable water,” before the Corps and

EPA can assert the awesome authority they possess under

the CWA.

ll. THE CONFUSION CREATED BY THE

REGULATORY AGENCIES IN THE FIELD

SHOULD COMPEL THIS COURT'S

INVOLVEMENT.

'2 See W. Page Keeton et al., Prosser and Keeton on Torts §§

41-42 (5" ed. 1984) (discussing the various connections between

an act and damage “caused” by the act).

15

A. Congress Has Recognized the Agencies’

Haphazard Implementation of “Navigable

Waters” Jurisdiction.

| Congress and the agencies have continually struggled

with the extent of CWA jurisdiction ever since this Court’s

2001 decision in SWANCC. Indeed, Congress held a

hearing on the regulatory implications of SWANCC, which

led to a promise from the Corps and EPA that they would

clarify the scope of CWA jurisdiction to benefit both their

field offices and the regulated community. But the

agencies have broken their promise. They have issued no

meaningful regulatory guidance to date, and none is

forthcoming.

In 2002, the House Subcommittee on Energy Policy,

Natural Resources and Regulatory Affairs, chaired by

Representative Doug Ose, held a hearing concerning EPA

and Corps implementation of this Court’s SWANCC

decision. See Agency Implementation of the SWANCC

Decision: Hearing Before the Subcomm. on Energy Policy,

Natural Resources and Regulatory Affairs of the Comm. on

Gov't Reform, No. 107-230, 107" Cong. 2d Sess. (2002)

(statement of Rep. Doug Ose, Chairman) (“Subcomm.

Hearing”). During that hearing, Representative Ose

recognized that the agencies’ different approaches to

determining CWA jurisdiction have “resulted in widely

varying interpretations of the scope of jurisdiction...” /d. at

2. Furthermore, Representative Ose explained that the

“current situation is creating confusion and chaos” for the

States,'’ because the lack of agency guidance “hinders

'? See also Brief of Amici Curiae of the Building Industry Lega

)

Defense Foundation, ef al. in Support of Petitioners at 2-8,

United States v. Deaton, 332 F.3d 698 (4" Cir. 2003), petition

for cert. filed, 92 U.S.L.W. 3356 (U.S. Nov. 13, 2003) (No. 03-

16

States in their ability to implement their own programs to

protect wetlands.” /d. To address the confusion, the EPA

and Corps repeatedly agreed to conduct a rulemaking to

clarify their position regarding CWA _ jurisdiction.

Subcomm. Hearing at 32, 36, 38, 41, 53.

Things appeared hopeful in 2003, when the Corps and

EPA issued an Advanced Notice of Proposed Rulemaking

to “ensure that the regulations are consistent with the CWA

and the public understands what waters are subject to CWA

jurisdiction.” Advanced Notice of Proposed Rulemaking

on the Clean Water Act Regulatory Definition of “Waters

of the United States,” 68 Fed. Reg. 1991, 1993 (January 15,

2003) (“ANPR”). The agencies recognized that their

current regulations were causing confusion and that they

needed to deveiop new regulations to “clarify[] what waters

are subject to CWA jurisdiction.” Jd.

However, after receiving thousands of pages of public

comments, the agencies announced that they would not

move forward with rulemaking or otherwise issue any

guidance at all to clarify the confusion. Through a press

release, the EPA and Corps declined further agency action,

stating:

After soliciting public comment to determine if

further regulatory clarification was needed, the

EPA and Corps have decided to preserve the

701). Amici Curiae discussed specific examples of how

regulators in California are “improperly asserting jurisdiction

under the CWA.” /d. at 2. They included in their brief a series of

examples such as: (1) regulating a “vertical-walled box culvert

as waters of the United States that are swimmable”; and (2)

declaring that a municipal storm sewer system, including streets,

curbs, and gutters, are CWA navigable waters. /d. at 5-7.

17

federal government’s authority to protect our

wetlands. The agencies will continue to monitor

implementation of this important program to

ensure its effectiveness.

See Press Release, Environmental Protection Agency and

U.S. Army Corps of Engineers, EPA and Army Corps Issue

Wetlands Decision (December 16, 2003), available at

http://www.epa.gov/newsroom. The confusion still exists

without any expected schedule for clarification from these

agencies.

In light of the abandoned rulemaking on SWANCC,

and without this Court’s review, the lower courts have

become the final arbiters on the scope of CWA jurisdiction.

But, as shown above, they are in a state of disarray.

Everyone — including the agencies — will anticipate and

scrutinize every federal trial and circuit court opinion in the

absence of reasoned agency decision-making. Indeed, the

ANPR itself documented the divergent judicial views

concerning those water bodies that are regulated under the

CWA and those that are not. In a blatant abdication of their

responsibilities, the Corps and EPA directed their field staff

to make jurisdictional decisions on a “case-by-case basis”

by “considering the relevant court decisions.” 68 Fed. Reg.

1991, 1998.

B. The General Accounting Office Has Reported

on Rampant Regulatory Inconsistencies.

The U.S. General Accounting Office (“GAO”) has

issued a report confirming Congress’s findings of

regulatory inconsistency. See Report to the Chairman,

Subcomm. on Energy Policy, Natural Resources and

Regulatory Affairs, Comm. on Government Reform, House

18

of Representatives, Waters and Wetlands: Corps of

Engineers Needs to Evaluate Its District Office Practices in

Determining Jurisdiction, GAO-04-297 (Feb. 27, 2004)

(GAO Report)."*

The GAO Report identifies and documents the

different and often contradictory approaches, both among

and within the Corps’s districts, regarding whether a

particular non-navigable feature qualifies as a “tributary” or

an “adjacent” wetland. Id. at 20-22 and 17-20

respectively.'> In addition, the GAO Report concludes that

there is no consistency within the Corps on whether ditches

and other man-made conveyances are subject to federal

regulation. /d. at 22-26.

In effect, the GAO Report confirms that the Corps

does not know what the word “tributary” means, or how to

identify a “tributary” or an “adjacent” wetland in the field

with any predictability or consistency. Furthermore, GAO

found that few Corps districts actually disclose “their

practices for making jurisdictional determinations to the

public.” GAO Report at 27.

Consequently, we are left with an inconsistent

patchwork of jurisdictional determinations that is wholly

'4 Available at http://www.gao.gov/new.items/d04297. pdf.

'S See, e.g. GAO Report at 3 (“Districts apply different

approaches”), id. (“differences in identifying jurisdictional

limits”); id. at 4 (districts need “[t]o provide greater clarity to the

regulated community”); id. at 18 (“districts varied”); id. at 20

(districts “could differ significantly”); id. at 23 (“three different

district staff’ would probably make “three different

assessments”); id. at 25 (“contrast” among districts).

19

unsupported by any rulemaking record or _ other

documentation. Such ad hoc decision-making is precisely

the kind of situation where Chevron deference is not due.'®

With no federal agency plans for a future rulemaking, and

with the courts of appeal in conflict, the sole remaining

venue to resolve these issues is this Court.

C. Whether Federal Regulators Assert CWA

Jurisdiction Now Depends on the Geographic

Jurisdiction of the Various Courts of Appeal,

Not on a Consistent Regulatory Program.

Because the agencies have relied on divergent court

decisions to direct the public, landowners are now

confronted with geographically disparate applications of the

CWA. This subjects them to significant criminal and civil

penalties based solely upon where their land is situated.

Thus, landowners in the Sixth and Fourth Circuit states of

Kentucky, Michigan, Ohio, Tennessee, Maryland, Virginia,

North Carolina, South Carolina and West Virginia are

subject to over-regulation because federal jurisdiction is

triggered if their property has “some connection,” or is

“hydrologically connected,” to traditionally navigable

waters.

By contrast, areas in the Fifth Circuit states of

Mississippi, Louisiana and Texas will be regulated under

the CWA only if they physically abut an actually navigable

water. And landowners in the Second Circuit states (New

York, Connecticut, and Vermont) will be regulated not

© See, e.g., Chevron, U.S.A v. Natural Resources Defense

Council, 467 U.S. 837 (1984). The Fourth Circuit determined

that Chevron deference was appropriate and held that “the word

‘tributaries’ ... means what the Corps says it means.” Deaton,

332 F.3d at 711.

20

through the hydrological connection test, but only where

pollutants are shown to migrate off their properties and

result in an actual discharge to navigable waters.

CONCLUSION

If Mr. Rapanos’s wetlands were located in the Fifth or

Second Circuits, they would not be regulated. Whether

federal jurisdiction exists under a nationwide regulatory

program should not depend on the wholly fortuitous

circumstance of where in the country a particular piece of

property is located.

The Supreme Court’s involvement is urgently needed

so the Corps can regulate with consistency and property

owners know, up front, if the arm of the federal government

properly reaches their land and triggers CWA permitting

and penalty requirements.

DATED: April 4, 2005

Respectfully submitted,

Duane Desiderio*

Thomas J. Ward

Felicia K. Watson

National Association of

Home Butiders

*Counsel of Record