# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 715

## Text

/ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A07. Public record. Not legal advice.