Amicus Curiae Brief — Rapanos v. United States

Mt

No. 04-1854 and 04-1

Supreme Court of the Anited States

JOHN A. RAPANOS; JUDITH A. NELKIE RAPANOS;

PRODO, INC.; ROLLING MEADOWS HUNT CLUB;

and PINE RIVER BLUFF ESTATES, INC. .

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE

ATTAINABLE HOUSING ALLIANCE

IN SUPPORT OF PETITIONERS

SEBASTIAN RUCCI

3058 Chardonnay Lane

Poland, OH 44514

(330) 707-1182

Counsel of Record for Amicus Curiae

Attainable Housing Alliance

Becker Gallagher Legal Publishing, Inc., 800.890.5001

TABLE OF CONTENTS

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

SUMMARY OF ARGUMENT ................ 1

| POT PEE PCT TC TETTT TET EO +

I. THE PROPER JURISDICTIONAL ANALYSIS

UNDER THE CLEAN WATER ACT

REQUIRES A SIGNIFICANT NEXUS WELL

BEYOND THE MOST MINIMAL

HYDROLOGICAL CONNECTION. ...... +

ee 3 RS ere es 4

B. SWANCC Requires a Substantial Nexus

Beyond a Mere Hydrological Connection.

Adjacent Wetlands Must Require a

Significant Measure of Proximity to

Navigable Waters to Confer Clean Water

Fe I ns oo cca u ee akucas 8

Twenty Miles Is Not a Significant

Measure of Proximity between the

Wetlands on the Rapanos Property and

the Navigable Waters to confer Clean

Water Act Jurisdiction. ........... 12

(11)

II.

IIT.

THE PROPER JURISDICTIONAL ANALYSIS

UNDER THE CLEAN WATER ACT DOES

NOT CONFER JURISDICTION IF THE

WETLANDS LACK ANY CONNECTION TO

NAVIGABLE WATERS. ........s0008; 14

A.

The Clean Water Act Does Not Extend to

Wetlands Adjacent to Nonnavigable

Tributaries Where the Runoff Does Not

Enter The Nonnavigable Tributaries.

The Drainage Ditch Along Carabell’s

Property Is Not Adjacent to Navigable

NS ees aia 15

Federal Jurisdiction over Adjacent

Wetlands must Be Scrutinized Carefully

Because Land Use is an Area of

Traditional Local Control. ........ 18

sf OTE OTT TC TET Lee 20

(111)

TABLE OF AUTHORITIES

CASES: PAGE:

Carabell v. U.S. Army Corps, 391 F.3d 704 (6th Cir 2004) 15

Hoffman Homes v. EPA, 961 F.2d 1310 (7th Cir. 1992) ... 3

Rice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001)

tisk k GE obats be beets Video Pes Bee utes 1,9, 11, 12

Solid Waste Agency of Northern Cook County v. U.S. Corps of

Engineers, $31 U.S. 159 (2001) ............... 1, 5-15, 17

U.S. v. Needham, 354 F.3d 340 (Sth Cir. 2003) .... 1, 10-12

U.S. v. Rapanos, 190 F. Supp. 2d 1011 (ED MI 2002) ... 12

U.S. v. Rapanos, 376 F.3d 629 (6th Cir. 2004) ........... 8

U.S. v. Riverside Bayview, 474 U.S. 121(1985) 6, 7, 14-16, 19

FEDERAL STATUTES: PAGE:

Fe ee Oe EE i hc cb Suen ends een decane 4

SP ee OA Ad so Wane os ae el oven 4,5

PE GED decane ts beckon eee 4

FEDERAL RULES: PAGE:

Be es SOD. 6.4 Sc kee neucccas 13

ae SE 6 oe Feat e tae ences 4,7, 11, 16

bet es Mo 8 eae 4

Pe ee SED i wiktines ei pen es eee 15

Pe ee ee ED on kde kas uveesenevas 15

BOOKS AND ARTICLES:

V. Albrecht & B. Goode, Wetland Reg. in the Real World 21 (1994). . 5

(iv)

INTEREST OF THE AMICI CURIAE

The Attainable Housing Alliance has received the parties

written consent to file this brief as amicus curiae in support of

the petitioners. Letters of consent have been filed with the Clerk

of the Court. Counsel for amicus curiae authored this brief in

whole and no other person or entity other than amicus, its

members or counsel have made a monetary contribution to the

preparation or submission of this brief.

The Attainable Housing Alliance is an association of over

800 members of the Northern Illinois Home Builders

Association, the Home Builders Association of the Greater Fox

Valley and the Home Builders Association of Greater Chicago.

The Attainable Housing Alliance represents a unified voice of

the home building industry of northeastern Illinois on issues that

affect the attainability and ownership of housing. The instant

case could have a profound impact on the regulation of property

in Northern Illinois where much of the land is low lying, and

therefore, directly concerns all the members of the Alliance.

SUMMARY OF ARGUMENT

Amici submit that SWANCC replaced the “hydrological

connection” test with the“significant nexus” test, and submit that

the a proper reading of what comprises a substantial nexus under

SWANCC is found in Rice v. Harken Exploration Co., 250 F.3d

264 (Sth Cir. 2001) and United States v. Needham, 354 F.3d 340

(Sth Cir. 2003) both of which limit hold that a minimal

hydrological connection is not sufficient to confer jurisdiction.

To reach Clean Water Act jurisdiction over the wetlands over the

Rapano’s property, the Corps must claim jurisdiction over all

tributaries, however trivial or intermittent. The Corps would in

effect, regulate all water in every state, because everything above

sea level eventually drains into a navigable waterway. This

reaches well beyond the significant nexus between the wetlands

and ‘navigable waters, and substantially altered the meaning of

navigable waters as found in the Clean Water Act.

2

The Clean Water Act is not so broad as to permit the

Corps to impose regulations over tributaries that are neither

themselves navigable nor truly adjacent to navigable waters. It is

doubtful that Congress authorized the Corps to assert its

- jurisdiction in such a sweeping and constitutionally troubling

manner. Even if that traditional meaning may be stretched, in

combination with a broad understanding of “navigable waters,”

to reach most rivers, streams, and lakes, and waters and wetlands

closely related to them, it cannot conceivably apply to a drainage

ditch twenty miles removed from a navigable river. This would

have far-reaching consequences, and impose severe limitations

on a landowner’s use of their land.

The term adjacent wetlands as defined by the Corps

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. This requires the

adjacent body of water be “sufficiently linked” to the navigable-

in-fact water. The Carabell property is separated by a man-made

berm and is far too attenuated to become waters of the United

States within the meaning of the Clean Water Act.

Since the ditch running along the Carabells’ property is

separated from wetlands only by a man-made berm or barrier. It

is logical that this would limit the entrance of any pollution on

the property from entering the downstream waters. This would

also limit sediment transport from the property to downstream

navigable waters. By berming the property a landowner should

be able to remove the property from the Corps jurisdiction as this

would limit any substantial nexus to the navigable waters.

However, the Corps would assert that the manmade berm is

jurisdictional. In effect, a landowner is not permitted to enclose

the wetlands or creeks on its property. However, if the purpose

of the Clean Water Act is to restore and maintain clean water,

then this enclosure should be encouraged. Unless the Corps has

3

converted the Clean Water Act into a wildlife conservation act.

If so, this should change should be spelled out by Congress, and

not the Corps.

When Congress enacted the Clean Water Act, it

attempted to preserve the authority of the States to regulate land

use. The Corps regulation prohibit a property owner by enclosing

its property from navigable waters which prevents the discharge

of pollutants to be controlled at the source by preventing their

entry into navigable waters. The severe federal intrusion into

areas of traditional state and local control by the Corps is not

consistent with Congress’ effort to preserve the State land use

authority. The Corps usurpation of local land use, can only be

justified by a clear statement of congressional intent. Not only is

such a statement lacking in the Clean Water Act, but Congress

made explicit in the Act its intention to preserve state and local

land use regulation.

The Corps limitless jurisdiction intrudes upon traditional

local authority to control the use, development, and preservation

of land and water resources that Congress expressly recognized

in the Clean Water Act. The Corps regulatory authority under §

404 of the Clean Water Act has limits, and those limits forbid its

regulatory authority over the enclosure of small intrastate

ditches, miles from navigable waters. The Corps also does not

have regulatory authority to regulate the enclosure of property

where the runoff does not reach navigable waters.

4

ARGUMENT

L. THE PROPER JURISDICTIONAL ANALYSIS

UNDER THE CLEAN WATER ACT REQUIRES A

SIGNIFICANT NEXUS WELL BEYOND THE

MOST MINIMAL HYDROLOGICAL

CONNECTION.

A. Clean Water Act.

In 1969, the Cuyahoga River in Cleveland, Ohio, coated

with a slick of industrial waste, caught fire. Congress responded

to that dramatic event by enacting the Clean Water Act, 33

U.S.C. §§ 1251-1387 (“Clean Water Act”). Section 404(a) of the

Clean Water Act, 33 U.S.C. § 1344(a), prohibits “any person”

from discharging “any pollutant,” including “dredged or fill

material,” into “navigable waters” without obtaining a permit

from the Corps. The Clean Water Act defines “navigable waters”

as “the waters of the United States.” 33 U.S.C. § 1362(7).

However, “the waters of the United States” is not defined.

The Clean Water Act directs the EPA to adopt guidei.nes,

in conjunction with the Corps, for administering § 404 dredge

and fill permits. 33 U.S.C. § 1344(b)(1). The Corps guidelines

are codified at 33 C.F.R. Parts 320-29 (2004).” The Corps

defines the term “waters of the United States” in 33 C.F.R.

328.3(a). The relevant definition include: “all waters which are

currently used, or were used in the past, or may be susceptible to

use in interstate or foreign commerce,” § 328.3(a){ 1); “tributaries

of [these] waters,” § 328.3(a)(5); and “wetlands adjacent to

[these] waters [or their tributaries], § 328.3(a)(7).

* The EPA's guidelines under the Clean Water Act are codified at 40

C.F.R. Part 230. Since the EPA and the Corps have identical provisions,

citation is only provided to the Corps regulations. Also, all statutory

references to C.F.R. are to (2004) unless noted otherwise.

5

The Clean Water Act defines “navigable waters” as “the

waters of the United States.” 33 U.S.C. § 1362(7). The phrase

“navigable waters” and “waters of the United States” remain

closely intertwined, and the tributary of a navigable water is also

intertwined with the word navigable waters. The word navigable

does not get subsumed by the word tributary. In indicating the

reach of the Clean Water Act, Congress used the words “the

waters of the United States” as opposed to “all water within the

United States.” The statutory language carves out a subset of

federally regulated waters “the waters of the United States” from

the larger set of “all water” within the nation’s borders. Though

the Clean Water Act uses the phrase “waters of the United

States” rather than “navigable waters of the United States,” that

phrase is used to define the term “navigable waters.”

Nonetheless, the Corps has wrenched the word of its

plain meaning and stepped outside its statutory boundaries, and

has steadfastly expanded its authority under the Act into a

mandate to regulate every drop of water in the country.‘

B. SWANCC Requires a Substantial Nexus

Beyond a Mere Hydrological Connection.

The Corps jurisdictional expansion was limited to some

extent when this Court construed the phrase “the waters of the

United States” under the Clean Water Act in Solid Waste Agency

of Northern Cook County v. U.S. Corps of Engineers, 531 U.S.

159 (2001) (“SWANCC’”’). SWANCC created a split among the

federal courts as to how the ruling should be interpreted. Some

courts have adopted an overly narrow reading allowing the Corps

to regulate every drop, while others have properly read SWANCC

broadly consistent with this Courts opinion.

* Permit applications have involved wetlands as small as 26 square feet,

about the size of an office desk. V. Albrecht & B. Goode, Wetland Regulation

in the Real World 21 (1994).

6

In SWANCC a consortium of municipalities surrounding

Chicago sought to build a landfill in land that had been used

decades earlier for sand and gravel mining. /d. at 163. Once the

mining ceased the excavation areas filled with water and became

permanent and seasonal ponds. /d. The municipalities sought a

permit to fill the ponds. /d. The Corps denied the permit because

the non-navigable and isolated ponds had become the home of

migratory birds, and under the Corps “Migratory Bird Rule” the

ponds were “waters of the United States” and fell within the

Corps jurisdiction. /d. at 164-65. This Court explained that a

significant nexus must exist between the regulated wetlands and

navigable waters:

It was the significant nexus between the wetlands and

“navigable waters” that informed our reading of the

{Clean Water Act] in Riverside Bayview Homes... . In

order to rule for [the Corps] here, we would have to hold

that the jurisdiction of the Corps extends to ponds that

are not adjacent to open water. But we conclude that

the text of the statute will not allow this.

Indeed, the Corps’ original interpretation of the [Clean

Water Act], promulgated two years after its enactment, is

inconsistent with that which it espouses here. Its 1974

regulations . . . emphasized that it is the water body’s

capability of use by the public for purposes of

transportation or commerce which is the determinative

factor. ...

SWANCC, 531 U.S. at 167-68 (emphasis added).

The SWANCC Court also noted that the “Corps’ original

interpretation” of the Clean Water Act “promulgated two years

after its enactment” is much different than the Corps “new

regulations.” /d. at 168. The Court concluded that neither the text

of the statute nor its legislative history supported the Corps’

7

assertion of jurisdiction over the non-navigable ponds. /d. at 170-

171. The Court also declined to extend the ruling in United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) to

isolated ponds:

We thus decline [the Corps] invitation to take what they

see as the next incluctable step after Riverside Bayview

Homes: holding that isolated ponds, some only seasonal,

wholly located within two Illinois counties, fall under §

404(a)’s definition of “navigable waters” because they

serve as habitat for migratory birds. ... We cannot agree

that Congress’ separate definitional use of the phrase

“waters of the United States” constitutes a basis for

reading the term “navigable waters” out of the statute.

We said in Riverside Bayview Homes that the word

“navigable” in the statute was of “limited import” and

went on to hold that § 404(a) extended to non-navigable

wetlands adjacent to open waters. But it is one thing to

give a word limited effect and quite another to give it no

effect whatever. The term “navigable” has at least the

import of showing us what Congress had in mind as its

authority for enacting the [Clean Water Act]: 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 171-72 (emphasis added).

The SWANCC majority noted that “where an

administrative interpretation of a statute invokes the ou. er limits

of Congress’ power, we expect a clear indication that Congress

intended that result.” /d. at 172. The Court found “nothing

approaching a clear statement from Congress” that it intended to

——teach non-navigable isolated ponds. /d. at 174. The Court

concluded that 33 C.F.R. § 328.3(a)(3) (1999), as applied to the

property pursuant to the migratory bird rule “exceeds the

8

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

water Act].” /d. at 174. Since the ponds were not “waters of the

United States” the development was allowed to proceed without

federal interference. /d.

The SWANCC dissent points out, that even the most

seemingly isolated wetlands are in fact both hydrologically and

ecologically connected to navigable waters. SWANCC, 531 U.S.

at 176 n.2 (Stevens J., dissenting). Nonetheless, the majority still

refers to the wetlands as isolated. This leads the majority to

conclude that the Corps jurisdiction does not extend to “ponds

that are not adjacent to open water.” SWANCC, 531 U.S. at 167-

68. The dissent cogently, if disapprovingly, described the effect

of SWANCC in its dissent as follows: “the Court draws a new

jurisdictional line, one that invalidates the 1986 migratory bird

regulation as well as the Corps assertion of jurisdiction over all

waters except for actually navigable waters, their tributaries

and wetlands adjacent to each.” SWANCC, 531 U.S. at 176-77

(Stevens J., dissenting). The dissent also noted that after

SWANCC “intermittent rivers, streams, tributaries” that “are not

contiguous or adjacent to navigable waters” are outside the scope

of the Clean Water Act. /d. at 189.

Cc. Adjacent Wetlands Must Require a

Significant Measure of Proximity to Navigable

Waters to Confer Clean Water Act

Jurisdiction.

Amici submit that SWANCC replaced the “hydrological

connection” test with thesignificant nexus” test. The Sixth

Circuit appears to give this lip service. The Sixth Circuit

explained in United States v. Rapanos, 376 F.3d 629, 639 (6th

Cir. 2004) that Clean Water Act jurisdiction over “adjacent

wetlands” requires a significant nexus between the wetlands and

navigable waters, “which can be satisfied by the presence of a

hydrological connection.” However, Rapanos Court finds that

9

even the most minimal hydrological connection between that

water and navigable waters is sufficient to confer jurisdiction.

The Sixth Circuit has reinserted the hydrological connection test

by holding that a hydrological connection confers a significant

nexus.

This Court should reject the Sixth Circuit’s view that

even the most minimal hydrological connection between that

water and navigable waters is sufficient to confer jurisdiction.

The Fifth Circuit has lead the charge in applying a proper reading

of what comprises a substantial nexus under SWANCC. In Rice

v. Harken Exploration Co., 250 F.3d 264 (Sth Cir. 2001) the

court addressed whether an oil company was liable for the

damage to the plaintiffs land from a series of small “discharges

that occurred over a considerable period of time” by “ground and

surface waters” into “a small seasonal creek” which runs into a

navigable river. /d. at 265.

The Rice Court address groundwater and surface water

separately, and found that “ground waters are not protected

waters under” the Clean Water Act. /d. at 269 (citation omitted).

With regards to surface waters the court relied on SWANCC to

conclude “a body of water is subject to regulation under the

{Clean Water Act] if the body of water is actually navigable or

is adjacent to an open body of navigable water.” /d. at 269 (citing

SWANCC, 531 U.S. at 680). The court noted that the streams the

plaintiff sought to protect were “intermittent streams which only

infrequently contain running water” and often have “no running

water at all.” /d. at 270.

The Rice Court found a lack of evidence that the non-

navigable creek is “sufficiently linked to an open body of

navigable water” to permit jurisdiction, and it would be an

“unwarranted expansion’ to apply jurisdiction to intermittent

streams. /d. at 271. The court also found a lack of “evidence of

a close, direct and proximate link between” the discharges and

10

“any resulting actual, identifiable” contamination of a “particular

body of natural surface water that satisfies the jurisdictional

requirements.” /d. at 272.

The Fifth Circuit continued its proper reading of

SWANCC in United States v. Needham (In re Needham), 354

F.3d 340 (Sth Cir. 2003) where oil was “discharged into the

drainage ditch” that spilled into a tributary that flows into an

“industrial waterway that eventually flows into the Gulf of

Mexico.” /d. at 343. The trial court found that the “neither the

drainage ditch” nor the tributary are navigable waters and not

“sufficiently adjacent to the navigable waters” and that the spill

was therefore “not subject to federal regulation.” Jd. The

government argued that its regulatory definition of “navigable

waters” includes all “tributaries” of navigable-in-fact waters

which covers all waters, excluding groundwater, that have any

hydrological connection with “navigable water.” /d. at 345. The

Fifth Circuit refused to bless the government’s expansive

definition of tributaries:

In our view, this definition is unsustainable under

SWANCC. The [Clean Water Act] and the [Oil Pollution

Act] 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. 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 (citing Rice, 250 F.3d at

269).

The Needham Court noted that the government’s

1!

definition of tributaries would push the “outer limits of the

Commerce Clause and raise serious constitutional questions” and

that SWANCC “rejected such an expansive reading of the” Clean

Water Act. /d. at 346 n.8. The Needham Court observed that:

“Under Rice, 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.” /d. at 347.

~—.-The Needham Court interpreted the Corps definition of

“adjacent” to require a significant measure of proximity to

navigable waters, in the following passage:

The Army Corps of Engineers defines “adjacent” to

mean “bordering, contiguous, or neighboring.” 33 C.F-R.

§ 328.3. However, this regulation was invalidated, at

least in part, in SWANCC. Nevertheless, the Corps’

definition comports with the term’s plain meaning.

Webster’s Third New International Dictionary 26 (1986)

offers several definitions: “(a) not distant or far off:

nearby but not touching; (b) relatively near and having

nothing of the same kind intervening: having a common

border: abutting, touching: living nearby or sitting or

stancing relatively near or close together; and (c)

immediately preceding or following with nothing of the

same kind intervening.” Hence, both the regulatory and

plain meaning of “adjacent” mandate a significant

measure of proximity. Therefore, including all

“tributaries” as “navigable waters” would negate

Rice's adjacency requirement, and extend the [Clean

Water Act] beyond the limits set forth in SWANCC. /d.

at 347 n.12 (emphasis added).

12

Amici submit that the analysis from the Fifth Circuit

(Rice and Neeuham) applies the correct reading of this SWANCC

which replaced the “hydrological connection” test with

the“significant nexus” test and a minimal hydrological

connection between is not sufficient to confer jurisdiction.

Otherwise runoff hundreds of miles from navigable waters will

confer jurisdiction, allowing the Corps to regulate every drop of

water in the United States.

D. Twenty Miles Is Not a Significant Measure of

Proximity between the Wetlands on the

Rapanos Property and the Navigable Waters

to confer Clean Water Act Jurisdiction.

The District court in U.S. v. Rapanos, 190 F. Supp. 2d

1011 (ED MI 2002) correctly noted that petitioner Rapano’s

“property is not directly adjacent to a navigable body of water;

it is over twenty miles from Saginaw Bay, and it roughly twenty

miles from where the Kawkawlin River -- the nearest body of

navigable water -- becomes navigable.” /d. at 1012. The “nearest

body of navigable water to [the Rapanos’] property is roughly

twenty linear miles away.” /d. at 1015 (emphasis added).

To reach Clean Water Act jurisdiction over the wetlands

over the Rapano’s propeity, the Corps rust claim jurisdiction

over all tributaries, however trivial or intermittent. The Corps

would in effect, regulate all water in every state, because

everything above sea level eventually drains into a navigable

waterway. This is light of the plain reading of the Clean Water

Act which used the words “the waters of the United States” as

opposed to “all water within the United States.”

The words of Chief Justice Rehnquist’s are instructive:

it is “the significant nexus between the wetlands and ‘navigable

waters’”’ that must inform our reading of the [Clean Water Act].

13

SWANCC, 531 U.S. at 168. Because, as Justice Stevens points

out, [SWANCC] has substantially altered the meaning of

“navigable waters” in the [Clean Water Act], a “significant

nexus” must constitute more than a mere “hydrological

connection.” SWANCC, 531 U.S. at 176-77 (Stevens J.,

dissenting). The Sixth Circuit has essentially ignored this Court’s

instructions and maintain the hydrological connection status quo.

The Corps regulations do not define tributary.° Hence, it

must be given its common and ordinary meaning. The common,

roadside drainage ditch bordering property cannot be reasonably

construed in common parlance to be a tributary. Even if,

however, the ditch can be said to be a “stream” and therefore a

tributary, it is not a tributary twenty miles from a navigable river.

The attenuated link between the wetlands on the Rapanos

property and the navigable river precludes labeling the runoff

from the wetlands as a tributary. The main ditch on the Rapanos

property does not qualify as a tributary because it is not

contiguous or adjacent to navigable waters. The argument that

navigable waters includes all tributaries of navigable waters is

unsustainable under SWANCC.

The Clean Water Act is not so broad as to permit the

Corps to impose regulations over tributaries that are neither

themselves navigable nor truly adjacent to navigable watcrs. It is

doubtful that Congress authorized the Corps to assert its

jurisdiction in such a sweeping and constitutionally troubling

manner. Even if that traditional meaning may be stretched, in

combination with a broad understanding of “navigable waters,”

* The Corps 1975 regulations define “Primary tributaries” as “the main

stems of tributaries directly connecting to navigable waters of the United

States up to their headwaters and docs not include any additional tributaries

extending off of the main stems of these tributaries.” 33 C-.F.R.

209.120(d)(2)11)(e).

14

to reach most rivers, streams, and lakes, and waters and wetlands

closely related to them, it cannot conceivably apply to a drainage

ditch twenty miles removed from a navigable river. This would

have far-reaching consequences, and impose severe limitations

on a landowner’s use of their land.

Il. THE PROPER JURISDICTIONAL ANALYSIS

UNDER THE CLEAN WATER ACT DOES NOT

CONFER JURISDICTION IF THE WETLANDS

LACK ANY CONNECTION TO NAVIGABLE

WATERS.

A. The Clean Water Act Does Not Extend to

Wetlands Adjacent to Nonnavigable

Tributaries Where the Runoff Does Not Enter

The Nonnavigable Tributaries.

SWANCC atfirmed that it “was the significant nexus

between the wetlands and navigable waters that informed [its]

reading of the [Clean Water Act] in Riverside Bayview Homes.”

SWANCC, 531 U.S. at 167. The significant nexus was found in

Riverside Bayview Homes because the wetland were “actually

abut([ting]. . . a navigable waterway.” Riverside Bayview, 474

U.S. at 131, 135.

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

U.S. 121 (1985) a developer sought to build a housing

development on 80 acres by filling wetlands on property

“adjacent to a body of navigable water . . . Black Creck, a

navigable waterway.”/d. at 131. The.“property is part of a

wetland that actually abuts on a navigable waterway.” /d. at

135. The issue was “limited” to whether the Corps could

“exercise jurisdiction over wetlands adjacent” to navigable

waters. /d. at 131. The opinion twice expressly declined to hold

that the Corps may exercise jurisdiction over “wetlands that are

15

not adjacent to bodies of open waiter.” /d. at 131-32 n.8 and 124

n.2.

The majority opinion in SWANCC repeatedly refers to the

wetlands at issue in that case as “isolated” despite the fact that,

as the dissent points out, even the most seemingly ‘isolated’

wetlands are in fact both hydrologically connected, as well as

ecologically connected, to navigable waters. SWANCC, 531 U.S.

at 176, n.2 (Stevens J., dissenting). The dissent notes that the

wetlands are at least ecologically connected and “anything but

isolated.” Jd. Despite this, the majority still refers to the wetlands

as isolated. This lead the SWANCC majority to conclude that

even if there is a hydrological connection, the wetlands are

isolated for purposes of the Clean Water Act. /d. at 171-72.

B. The Drainage Ditch Along Carabell’s

Property Is Not Adjacent to Navigable

Waters.

The Sixth Circuit noted in Carabell v. U.S. Army Corps,

391 F.3d 704 (6th Cir 2004) that when the ditch was excavated

on the Carabell’s property “the spoils were cast to either side of

the ditch, creating upland berms approximately four feet wide

along the banks of the ditch. The berm edging the Carabells’

property serves to block immediate drainage of surface water

out of the parcel into the ditch.” /d. at 705 (emphasis added).

The Carabell property is adjacent to a ditch which connects to

tributaries of navigable waters, however, the ditch on “Carabells’

triangle-shaped property is separated from wetlands only by a

* The Supreme Court did not “express any opinion” on the “question of

the authority of the Corps to regulate discharges of fill material into wetlands

that are not adjacent to bodies of open water.” Riverside Bayview Homes, 474

U.S. at 131-32 n.8. Also, “wetlands not necessarily adjacent to other waters”

33 C.F.R. §§ 328.3(a)(2) and (3) was “not now before” the court. /d. at 124

n.2.

16

man-made berm or barrier.” /d. at 708. The Sixth Circuit

concluded that the wetlands on the “Carabells’ property are

separated from a tributary of ‘waters of the United States’ only

by a man-made berm or barrier, they are considered ‘adjacent

wetlands’ under § 328.3(a)(7). As such, the wetlands at issue in

this case fall within the jurisdiction of the Corps for purposes of

the CWA.” /d. at 709.

The wetland in Riverside Bayview Homes served “to filter

and purify water draining into adjacent bodies of water.” /d. at

134-35. However, wetlands on Carabell’s property “block

immediate drainage of surface water out of the parcel into the

ditch.” Carabell, 391 F.3d at 705. There is no nexus with the

navigable river. The runoff on the Carabell’s property does not

reach the navigable river, and the lack of nexus with the

navigable river is certainly not significant.

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. This requires the adjacent body of water be

“sufficiently linked” to the navigable-in-fact water. The Corps

regulations define “adjacent” as “bordering, contiguous, or

neighboring.” 33 C.F.R. § 328.3(c). However, the connection

bet cen the drainage ditch and the Carabell property is separated

by a man-made berm and is far too attenuated to become waters

of the United States within the meaning of the Clean Water Act.

The attenuated connection between the ditch enclosure and the

waters of the United States is significant evidence that the

drainage ditch is not adjacent.

The Clean Water Act provides for jurisdiction over

“navigable waters,” defined as “waters of the United States.”

Nothing in that language, other provisions of the Clean Water

Act, or legislative history shows a clear indication or

17

unmistakable intention to reach waters that are not connected to

navigable waters.

Since the ditch running along the Carabells’ property is

separated from wetlands only by a man-made berm or barrier. It

is logical that this would limit the entrance of any pollution on

the property from entering the downstream wate's “his would

also limit sediment transport from the property ts zownstream

navigable waters. By berming the property a landowner should

be able to remove the property from the Corps jurisdiction as this

would limit any substantial nexus to the navigable watcrs.

However, the Corps would assert that the manmade berm is

jurisdictional. In effect, a landowner is not permitted to enclose

the wetlands or creeks on its property. However, if the purpose

of the Clean Water Act is to restore and maintain clean water,

then this enclosure should be encouraged. Unless the Corps has

converted the Clean Water Act into a wildlife conservation act.’

If so, this should change should be spelled out by Congress, and

not the Corps. The SWANCC majority noted that “where an

administrative interpretation of a statute invokes the outer limits

of Congress’ power, we expect a clear indication that Congress

intended that result.” SWANCC at 172.

Any connection between the runoff from the property and

navigable waters is highly attenuated at best, and the drainage

ditch on the property could be deemed a tributary by wrenching

the word of its plain meaning, and thereby stepping outside the

Corps statutory and constitutional boundaries.

” The “Clean Water Act is not a comprehensive wildlife protection

statute. Although the Act mentions wildlife as an important result of

controlling pollution, the purpose of the Act is to restore and maintain clean

water, not to conserve wildlife.” Hoffman Homes, Inc. v. EPA, 961 F.2d 1310,

1322 (7th Cir. 1992), vacated, 975 F.2d 1554, adopted, 999 F.2d 256, 262

(7th Cir. 1993) (Mamon, J., concurring).

ok Federal Jurisdiction over Adjacent Wetlands

must Be Scrutinized Carefully Because Land

Use is an Area of Traditional Local Control.

In enacting the Clean Water Act, Congress never

suggested that it intended to usurp traditional local authonty over

all surface drainage courses, or that it intended to upset the

federal-state balance by regulating all waters and wetlands,

however trivial and far removed from any navigable waterbody.

Congress did not intend to sweep within federal jurisdiction, all

surface runoff, however minuscule or intermittent, within the

country. This effects a massive intrusion of federal power into

land use decisions that by tradition are the province of the States.

Nonetheless, the Corps is now attempting to direct local

development activities, e.g., the enclosure of ditches, and the

grading of soil for homebuilding.

When Congress enacted the Clean Water Act, it

attempted to preserve the authority of the States, stating that “[i]t

is the policy of the Congress to recognize, preserve, and protect

the primary responsibilities and mghts of States to prevent,

reduce and eliminate pollution, to plan the development and use

(including restoration, preservation, and enhancement) of land

and water resources.” 33 U.S.C. § 1251(b).

However, the Corps regulation prohibit a property owner

by enclosing its property from navigable waters. This clearly

prevents the discharge of pollutants to be controlled at the source

by preventing their entry into navigable waters. Unfortunately, if

a property owner seeks to encircle his land with berms so that the

waters no longer leave his property, the man- made berms do not

prevent the Corps jurisdiction.

This confirms the severe federal intrusion into areas of

traditional state and local control by the Corps. Congress clearly

tried to strike a careful balance, asserting federal authority where

19

necessary to protect strictly federal interests, while promoting a

voluntary federal-state partnership in matters beyond the reach

of the federal government, and preserving State authority

elsewhere. The Corps usurpation of local land use, can only be

justified by a clear statement of congressional intent. Not only is

such a statement lacking in the Clean Water Act, but Congress

made explicit in the Act its intention to preserve state and local

land use regulation.

While Congress intended the Clean Water Act to

encompass “at least some waters that would not be deemed

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

Riverside Bayview, 474 U.S. at 133, there is no reason to believe

that in using the familiar terms “navigable waters” and “waters

of the United States,” Congress suddenly meant to regulate all

drainage flows. There simply is no statutory support for the claim

that federal jurisdiction extends over all drainways in the nation,

or that a parcel of land can be regulated by the Corps as long as

rain falling in the area “eventually” drains downstream via a

roadside drainage ditch. Indeed, it is beyond belicf that Congress

ever could have envisioned the Clean Water Act being applied

to assert federal jurisdiction to regulate common, every-day

roadside drainage ditches simply because of an ultimate

connection to a far-off navigable waterway. Such an intrusion,

and on such a monumental scale, into a matter of such

long-standing state and local concern would, if intended, surely

have been mentioned in the legislative process. It was not.

Given its “particular duty to ensure that the federal-state

balance is not destroyed” with respect to “traditional concern{s]

of the States.” United States v. Lopez, 514 U.S. 549, 580-581

(1995) (Kennedy, J., concurring). By prohibiting the

development of land which seeks to close itself from navigable

waters, the Corps 1s able to bar projects that have been approved

by state and local authorities based on the Corps view that they

do not comport with the “public interest.” 33 C_.F.R. § 320.4(a).

20

See Lopez, 514 U.S. at 564 (“if we were to accept the

Government’s arguments, we are hard pressed to posit any

activity by an individual that Congress is without power to

regulate.)

The Corps limitless jurisdiction intrudes upon traditional

local authority to control the use, development, and preservation

of land and water resources that Congress expressly recognized

in the Clean Water Act. The Corps utterly limitless assertion of

federal jurisdiction obliterates ay “distinction between what is

truly national and what is truly local,” Lopez, 514 U.S. at 564,

568. The Corps aggrandizement of its own authority to regulate

man-made berms which prevent water from flowing to navigable

rivers is clearly not found in the Clean Water Act.

il. CONCLUSION.

The Corps regulatory authority under § 404 of the Clean

Water Act has limits, and those limits forbid its regulatory

authority over the enclosure of small intrastate ditches, miles

from navigable waters. The Corps has not shown any discernible

effect on interstate commerce, much less a substantial onc,

caused by enclosing small intrastate ditches. The Corps does not

have § 404 authority to regulate the enclosure of property where

the runoff does not reach navigable waters, or where the runoff

travels many miles from navigable waters. The judgment of the

Sixth Circuit should be reversed in both cases before this Court

and judgment should be entered on behalf of the petitioners.

Respectfully submitted,

SEBASTIAN RUCCI

3058 Chardonnay Lane

Poland, OH 44514

(330) 707-1182

Counsel for Amicus Curiae Attainable Housing Alliance