Amicus Curiae Brief — Rapanos v. United States

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

9) @: wv

se ea "ee

Nos. 04-1034, 04-1384 i AEE

In The “*2ec0. 005

JOHN A. RAPANOS, et al.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

-and-

JUNE CARABELL, et al.,

Petitioners,

UNITED STATES ARMY CORPS OF ENGINEERS,

Respondent.

On Writs Of Certiorari To

The United States Court Of Appeals

For The Sixth Circuit

BRIEF OF AMICUS CURIAE HOME

BUILDERS ASSOCIATION OF CENTRAL

ARIZONA SUPPORTING PETITIONERS

MICHAEL J. PEARCE*

FENNEMORE CRAIG, PC.

3003 North Central Avenue

Suite 2600

Phoenix, Arizona 85012

(602) 346-4600

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

ast

‘ +t

aa 921 es

ae |

=e a : 7

: 7 = ; rel * ray Oo 7 7 q ve,

TABLE OF CONTENTS

Page

I. Interest of the Amicus Curiae ...........c.0.0000000 1

II. Summary of the Argument..................00c00cseees 2

es BE ncnsicicceiadscnintemnenianansepennemnmnenineninines 3

A. Affordable Housing Is Becoming an Acute

III sic sntiirtieteiteiendentnantnetuian 8

B. Implementation of the Tributary Rule by

the United States by the Corps of Engi-

neers Demonstrates the Impact of Federal

Regulation on Local Land Use Planning.... 11

C. The Reach of the Federal CWA Should be

Limited to Matters within the Proper Am-

bit of the Commerce Clause........................ 15

D. The Tributary Rule Impermissibly Contin-

ues to Regulate All Tributaries, Regardless

of Their Relationship to Downstream Navi-

SSE UIT inssosccnidshititesieeciainsnibabeianiiiahpainantiibaniaiiniann 21

Ea EVEN URES I aISaD en ea TT 23

TABLE OF AUTHORITIES

Page

CASES

Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468

ST inhhchisitiiaathibiiedchteneticetiaeaiainssllansaabatieaeasieaietianaininsiginseeiniiiel 6

Baccarat Fremont Developers, LLC v. United States

- Army Corps of Engineers, 425 F.3d 1150 (9th Cir.

EST ee Oe A 5

Carabell v. United States Army Corps of Engineers,

391 F.3d 704 (6th Cir. 2004)... eee 4, 5, 19, 20

Defenders of Wildlife v. Bernal, 204 F.3d 920 (9th

ee ORE 7

Defenders of Wildlife v. Flowers, 414 F.3d 1066 (9th

EEE aE oe 13

Defenders of Wildlife v. Flowers, 2003 WL 22145716

Se I i SII citstiserchitetiniiesniienemiscecnsionseriesevines 13

Headwaters v. Talent Irrigation District, 243 F.3d

GREE AEE ee 5, 21

Hess v. Port Authority Trans-Hudson Corporation,

ey TUE vikccicriihiinseicdcnciinnoctanciinanatmntareiinnsmesncen 11

In re Needham, 354 F.3d 340 (5th Cir. 2003)...........00000.... 22

Natural Resources Defense Council v. Callaway,

392 F. Supp. 685 (D.D.C. 1975)..............cccorecsecsererseeees 16

Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113

EELS NEE ec es Oo 7

Solid Waste Agency of Northern Cook County v.

United States Corps of Engineers, 531 U.S. 159

San indidinia tnisdatnichaebaudiienianianiptininitbetidanisitineeenmnagsine passim

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

EERE SO Be Wt ae eA ENTE 5, 21

TABLE OF AUTHORITIES — Continued

Page

United States v. Morrison, 529 U.S. 598 (2000).......... 15, 20

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

8 ana 19, 20, 23

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

BIE cccsececococesessnsesecemnssnsonssecstpasisssunasniemnaensaniaaannaa 20

United States v. Rapanos, 376 F.2d 629 (6th Cir.

IPED vocencescsecsecosssancenenemuntesennniatiantenidiasiaaaananeene 4, 20

STATUTES

BD TEBIAG. © BIB cccccccceesesesencnsnscsensesscsesseeeaneimneiannaal 7

Ee ee 11, 18

BD TABI. © BIG ccccocsccesecsocssencsecsssiestenmesishauaaene 4

BB TIBAD. © BBG wcccsvcvccccsscsvcsescnsssecvioncnsieisieiaamianamamana 4

BB TEARS. © BT Oia corcccnescensecsscosetinnieseessionsmmuniiianaaaiane 3

GB ABE. © GIS ecccecsvsseseccssccscssctnsnesenintininiaemanimaan 7

ARIZ. REV. STAT. ANN. § 41-3953(A)...........ccccccsseeseseeeeeeeeeeees 8

Ariz. REV. STAT. ANN. § 41-3954(A)..........cccccseeseseeeeeeeeeeeees 8

ARIZ. REV. STAT. ANN. § 41-3954(B)(1) ........cccecessesesseceeeeeens 8

ARIZ. SESS. LAWS Ch. 22, $§ 18, 22 ...........s.ccccccsssersocssssseeres 8

Federal Water Pollution Control Act, 33 U.S.C.

BP BOR EIIG cocccrccecosensstersscsenssnsiasiiiiatesimmnianaiaaanee 3

OTHER AUTHORITIES

37 Fed. Reg. 18289 (Sept. 9, 1972)............ccceccceseseeeeeeeeees 16

38 Fed. Reg. 13528, 13529 (May 22, 1973)..............00008 16

39 Fed. Reg. 12115 (April 3, 1974)............ccesscssseseseeseeenees 16

TABLE OF AUTHORITIES — Continued

Page

40 Fed. Reg. 19766 (May 6, 1975) .0.0..0........ccccccccececeeeeeeeee 16

40 Fed. Reg. 31320, 31323-24 (July 25, 1975).................. 17

ET EE 17

42 Fed. Reg. 37122, 37144 (July 19, 1977)... 6

43 Fed. Reg. 37078 (August 21, 1978) ............0..000000. 17, 18

44 Fed. Reg. 32854, 32901 (June 7, 1979) .............cccee 18

Administrative Appeal Decision, Approved

Geographic Jurisdiction for the Valley Vista

Property, p. 2, Los Angeles District, File

number 2002-01321-SDM (January 31, 2003).......... 13

Approved Jurisdictional Determination for the

Sunrise Office Park, p. 3 (September 7, 2001).............. 12

Arizona Affordable Housing Profile, Findings and

acl ntact itrranteameanennmnenties 8

EPA General Counsel Opinion (Feb. 6, 1973)................... 15

Report, Findings and Determination Regarding the

Navigability of the Salt River from Granite Reef

Dam to the Gila Confluence, Arizona Navigable

Stream Adjudication Commission No. 03-005-

TTT coin hatpiainpcendenemnsenecnenetensecesepensencensens 6

The State of Housing in Arizona (2000)..............0ccc0000 9, 10

Court RULES

Supreme Court Rule 37.3(a) ...............ccccccceeeees daianadaiiehaanel 1

BED SEED GE cecacccncesexescccsecnssesensaseceseesvcessoseeens 1

TABLE OF AUTHORITIES — Continued

Page

LEGISLATIVE HISTORY

es Ba a ae i iccrcccecnsentenscesecemennenatnnas 15

REGULATIONS -

33 C.F.R. § 328.3(a)(4), (5) amd (7) .............cccceseseeeeeseeeeerenees 3

era trnrecniateiteinetncttacceaniniians 3,5

es I siincinsincncicennsninttneninnnnbintediniasienmsinieittiiin 3

ee ae 12

I eee ae RENE Seer Eom s 18

SP IIIT iiniccsarnerianenentnaninnttianniidandennmantinpapenantcubiianl 12

ee ND crncnninisntrenceniitsintntaneniiatinttinaitiniinniniinmeaniiiis 7

ee ED cccrnscrntcnniisscciicniendinnanienmnsiabaiiiinnininiaii 7

CONSTITUTIONAL PROVISIONS

al alt 14

we i

BRIEF AMICUS CURIAE

OF HOME BUILDERS ASSOCIATION

OF CENTRAL ARIZONA

I. INTEREST OF THE AMICUS CURIAE'

The Home Builders Association of Central Arizona

(HBACA) is a non-profit corporation organized in 1951

under the laws of the State of Arizona to provide a means

for businesses in the housing and real estate industries in

central Arizona to address issues and concerns relating to

those industries. Under its association with the National

Home Builders Association, HBACA is authorized to

represent constituent members in the Arizona counties of

Maricopa, Pinal, Apache, Navajo, Gila, Graham, Greenlee,

Cochise, Yavapai, Yuma and La Paz. These counties

represent a vast territory in Arizona, with very diverse

hydrogeology, topography, natural and man-made drain-

age, and with a very rapidly expanding population.

Defining “navigable waters” across this diverse and

mostly arid region affects many aspects of the home

building industry. Land development in Arizona often

involves crossing smal] natural drainages and rerouting

* Pursuant to Rule 37.3(a), Rules of the Supreme Court, amicus

curiae Home Builders Association of Central Arizona states that letters

of consent have been obtained from the United States of America and

Petitioners in both cases. The consent of the United States of America is

filed herewith. The consent of Petitioner Carabell is filed herewith.

Consent from the Petitioner Rapanos is already on file with the Clerk.

Pursuant to Rule 37.6, Rules of the Supreme Court, counsel for

amicus curtae Home Builders Association of Central Arizona state that

they authored this brief in whole; no counsel for a party authored this

brief in whole or in part. No person or entity other than amicus curiae,

its members or its counsel made a monetary contribution for prepara-

tion or submission of this brief.

man-made irrigation canals. Thus, an overly expansive

definition of navigable waters has a direct and immediate

impact on site preparation — the very foundation of new

home construction.

HBACA is also interested in the social policy of

affordable housing in Arizona. Too often, when regulatory

policies affecting growth and development are being

implemented at the federal level, the impact on locally

affordable housing is overlooked. Policy-level decision-

makers within most governmental agencies are not typi-

cally affected by lack of affordable housing in places like

Arizona, yet their policy decisions directly affect our costs.

HBACA is close to the issue of affordability at the retail

homebuyer level, and is therefore in a unique position to

comment on the true cost of these regulatory programs.

II. SUMMARY OF THE ARGUMEN1

The United States Army Corps of Engineers defines

“navigable waters” under the Clean Water Act to include

all tributaries, and tributaries of tributaries, of tradition-

ally navigable waters, up to the ordinary high water mark

of any such tributary. In Arizona, this results in federal

land use regulation at the micro level, dictating alterna-

tives and mitigation requirements not only under the

Clean Water Act, but also under the National Environ-

mental Policy Act and the Endangered Species Act.

Once within jurisdiction, federal regulation spreads

beyond just the impact on the “navigable water” and

includes all of the land within the proposed development

project. This type of federal regulation exacerbates an

already acute crisis in affordable housing in Arizona.

This type of federal regulation also extends beyond

Congress’ intent in creating the Clean Water Act, which

expressly protects the rights of States to control local land

use planning decisions. Like the migratory bird rule that

this Court invalidated in Solid Waste Agency of Northern

Cook County v. United States Corps of Engineers, 531 U.S.

159 (2001), the regulation of tributaries in this fashion

exceeds the authority granted under the Clean Water Act.

We urge the Court to reverse the decision in these two

consolidated cases and set forth guidelines that will

enforce the requirement of a significant federal nexus

between navigable-in-fact waters and their tributaries.

Ill. ARGUMENT

Any law that affects the cost of housing in Arizona

affects HBACA. The definition of “navigable waters” at

issue in these two consolidated cases is such a law.

The Clean Water Act (CWA)’ establishes two regula-

tory permitting programs for discharges to “navigable

waters.” Section 404 requires a permit for the discharge of

dredged or fill material into navigable waters and is admin-

istered by the U.S. Army Corps of Engineers (Corps), with

oversight by the U.S. Environmental Protection Agency

- * Also known as the Federal Water Pollution Control Act, 33 U.S.C.

§§ 1251-1387.

* The term “navigable waters” is defined as “waters of the United

States,” 33 U.S.C. § 1362(7), which is in turn defined by regulation to

include not only all traditional navigable waters, but also all “im-

poundments of water otherwise defined as waters of the United States”

and “[t)ributaries of waters” of the United States and “wetlands

adjacent to waters” of the United States. 33 U.S.C. § 1362(7); 33 C.F.R.

§ 328.3(a)(4), (5) and (7).

(EPA).* Section 402, also called the National Pollutant

Discharge Elimination System (NPDES) program, re-

quires a permit for discharge of pollutants (other than

dredged or fill material) into navigable waters and is

administered by EPA.

The two cases at issue here, Rapanos v. United States,

Cause No. 04-1034,° and Carabell v. United States Army

Corps of Engineers, Cause No. 04-1384,’ involve the extent

of federal CWA jurisdiction over the use of fill material on

private lands that contain waters that may, or may not, be

classified as navigable waters within the meaning of the

CWA. They both turn on the reach of federal authority

over so-called adjacent wetlands — that is, wetlands that

are adjacent to navigable waters but which are not,

themselves, navigable waters. In this inquiry, the Court of

Appeals for the Sixth Circuit noted:

What is required for CWA jurisdiction over

“adjacent waters,” however, is a significant nexus

between the wetlands and ‘navigable waters’

which can be satisfied by the presence of a hydro-

logical connection.”

Apparently, however, not even a “hydrological connec-

tion” is required in some cases. For example, the Court of

Appeals for the Ninth Circuit has recently held:

* 33 U.S.C. § 1344 (herein referred to as “§ 404”).

* 33 U.S.C. § 1342.

* United States v. Rapanos, 376 F.2d 629, 639 (6th Cir. 2004).

” Carabell v. United States Army Corps of Engineers, 391 F.3d 704

(6th Cir. 2004).

* United States v. Rapanos, 376 F.2d 629, 639 (6th Cir. 2004)

(citations omitted).

The Corps’ jurisdiction over wetlands falling

within the adjacency clause in 33 C.FR.

§ 328.3(a)(7) does not depend on the existence of

a significant hydrological or ecological connection

between the particular wetlands at issue and wa-

ters of the United States.”

Thus, despite the fact that the Baccarat court empha-

sized that it was joining the reasoning of the Sixth Circuit

in Carabell, it held that mere adjacency of the wetland to a

navigable water establishes the federal nexus, and there-

fore the existence of federal jurisdiction over the private

property at issue.”

Of course, the wetlands at issue in these cases are

seldom adjacent to navigable waters in the traditional

sense. Instead, they are usually adjacent to a drainage

ditch, which may flow into another ditch, and perhaps

another, before reaching a small stream which eventually

empties into a body of water that is traditionally “naviga-

ble.” This particular reach of federal jurisdiction stems not

from adjacency, but from the upstream application of the

so-called “tributary rule.” 33 C.F.R. § 328.3(a)(5)."

In Arizona, the tributary rvie is the most expansive

part of the current regulatory definition. As implemented

by the Corps, it means that every tributary of a traditional

navigable water is in itself a “navigable water” under the

CWA. Therefore, waters of the United States include not

* Baccarat Fremont Developers, LLC v. United States Army Corps

of Engineers, 425 F.3d 1150, 1158 (9th Cir. 2005).

" See United States v. Deaton, 332 F.3d 698, 705 (4th Cir. 2003);

Headwaters v. Talent Irrigation District, 243 F.3d 526, 533 (9th Cir.

2001).

just direct (or primary) tributaries but all secondary,

tertiary and higher order tributaries to the highest head-

water limit of the tributary system.”

The sole traditional navigable water in Arizona is the

Colorado River.” Because of the tributary rule, however,

even the driest ephemeral drainages and remote stock

tanks are considered “navigable waters” because they have

the potential to drain into larger washes that eventually

may drain into intermittent streams that eventually may

drain into the Colorado. These higher order “tributaries”

are small arroyos that may not see water for years and

may be tens or even hundreds of miles from the nearest

“wet” water. These are not adjacent wetlands. They are in

fact dry lands that are adjacent to more dry lands that

may eventually drain ephemeral storm runoff into a

tributary of a true navigable water.

In Arizona, land and site development often involves

construction of road and utility crossings over these small

washes, and the relocation of old irrigation canals or stock

tanks. Because the Corps and EPA consider these “naviga-

ble waters,” the reshaping or crossing typically results in

discharges of fill material requiring a permit under Sec-

tion 404 of the CWA.

" 42 Fed. Reg. 37122, 37144 (July 19, 1977).

” Almost the entire State of Arizona lies within the Colorado River

Basin. See Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468 (1963).

Arizona's second most productive river, the Salt River portion of the

Gila River system, has been declared non-navigable in fact in the

Phoenix metropolitan area by the Arizona Navigable Stream Adjudica.-

tion Commission. See Report, Findings and Determination Regarding

the Navigability of the Salt River from Granite Reef Dam to the Gila

Confluence, Arizona Navigable Stream Adjudication Commission No.

03-005-NAV (Sept. 21, 2005).

The Section 404 permit process imposes substantial

burdens. Under EPA Guidelines, all discharges to waters

of the United States must be avoided to the extent practi-

cable.“ Discharges that are permitted must be mitigated

by appropriate and practical steps to “minimize potential

adverse impacts of the discharge on the aquatic ecosys-

tem.” Considering that there are no “aquatic ecosystems”

to impact, regulation of these dry areas defies the logic of a

federal hydrologic or aquatic nexus to interstate com-

merce.

Not only is the permit process itself expensive and

time consuming, the fact that a federal permit is required

triggers additional regulatory requirements under the

National Environmental Policy Act (NEPA) and the

Endangered Species Act (ESA).” As discussed later in this

brief, the assertion of jurisdiction over these small washes,

stock tanks and ditches raises significant constitutional

and federalism concerns. To put the matter in context,

however, it is helpful first to look at the housing situation

in Arizona and its relationship to the private land base.

* 40 C.FR. § 230.10(a).

* Id. at § 230.10(d).

* 42 U.S.C. §§ 4321 et seg. See Save Our Sonoran, Inc. v. Flowers,

408 F.3d 1113 (9th Cir. 2005) (real estate development in northeast

Phoenix enjoined based on Corps’ alleged violation of NEPA in issuing a

§ 404 permit for road and utility line crossings).

* 16 U.S.C. §§ 1531 et seq. See Defenders of Wildlife v. Bernal, 204

F.3d 920 (9th Cir. 2000) (suit to enjoin construction of high school on

grounds that it would result in possible take of cactus ferruginous

pygmy-owl).

A. Affordable Housing Is Becoming an Acute

Issue in Arizona

In Arizona, the question of affordable housing has

raised sufficient concern at the state level to create the

Arizona Department of Housing” and the Arizona Housing

Commission.” Jointly, these entities have undertaken to

study affordable housing issues in Arizona and prepare a

report on the subject. The report, entitled Affordable

Housing Profile, studies the affordable housing “gap”

between Arizona households seeking housing and the

number of available units.” It describes this concept as

follows:

One of the primary objectives of this study is to

identify the “affordability gap” for the State. The

“gap” is the difference between the number of

households within each income range and the

number of housing units affordable to those

households. It typically occurs at the lower end of

* The Arizona Department of Housing was created in 2001 and

became operational on October 1, 2002. 2001 Ariz. Sess. Laws Ch. 22,

§§ 18, 22. It is an agency of the State of Arizona, authorized by statute

to “address the affordable housing issues confronting this state... .”

Ariz. Rev. StaT. ANN. § 41-3953(A) (2003). The agency’s official website

is http://www. housingaz.com.

* The Arizona Housing Commission is an advisory commission also

created by Arizona to “recommend housing strategic planning and

policy.” Ariz. Rev. Stat. ANN. § 41-3954(B)(1). The members include

rural and non-rural representatives, one member of a tribal govern-

ment, one member of a tribal housing department, and various other

interests groups. See id., § 41-3954(A).

* Arizona Housing Commission, Arizona Department of Housing,

Anzona Affordable Housing Profile, Findings and Conclusions (2002).

The report is available on the Arizona Department of Housing website.

http://www. housingaz.com/he/default.asp. The report notes “Arizona is

the first state to commission a profile of this kind.” Jd. at i.

the income range where there are more house-

holds than affordable units. For these households

to find housing in the community, they must pay

more than 28% of their income toward shelter or

live in substandard and/or over-crowded condi-

tions.”

The report states that, as of 2000, the total afforda-

bility gap for the State of Arizona “is estimated at 194,700

households or about 10.3 percent of all households includ-

ing those on Native American reservations. ... [CJertain

counties, such as Coconino, Santa Cruz and Yavapai, have

affordability gaps higher than 15%.”

Importantly, the report also concludes:

Each community’s housing needs are different

and individual solutions and strategies must be

tailored to the particular situation.”

This element of affordable housing — local community

differences and the need for local solutions — relates

directly to the need for clarification of federal regulatory

control over land use planning at the local level.

In examining the cost of housing in Arizona, the

Arizona Housing Commission also prepared a report

entitled The State of Housing in Arizona.” This report

focuses on the reasons for high housing costs and the

concomitant lack of affordable housing. It identifies six

" Id. at 1.

* Id. at 2.

* Arizona Housing Commission, The State of Housing in Arizona

(2000). This report is available on the State of Arizona Department of

Housing web page, http://www. housingaz.com/hc/default.asp.

factors contributing to the price of a home: Construction

material and labor (50-55%); land acquisition and site

improvement costs, including infrastructure (20-24%),

builder overhead (12-14%), government fees (including the

cost of regulations) (8-10%), builder profit (3-5%), and city,

county and state sales taxes (3%).”

Significantly, “the most frequently mentioned barrier

to affordability within the construction process was the

limited amount of land for private development.” - The

Report notes that, while almost half of the land in the

State of California is privately held, only 17% of the land

in Arizona is in private hands. The remainder is in public

ownership.” As to this issue of lack of land, the report

concludes that the influence of government on this barrier

to housing affordability is “pervasive,” ranging from public

land policies and open space requirements to zoning and

taxation.”

In Arizona, pervasive restrictions on the use of private

land to protect “aquatic ecosystems” in dry washes trans-

late into increased housing costs and more limits on

available land. The nature and extent of these types of

land use restrictions, and the balance between them and

housing affordability, are issues of unique local concern.

* Id. at 32-33.

* Id. at 37.

* Of Arizona’s tota] land base, 27% is held in Indian reservation

status. The Federal Government owns an additional 42%, which is

variously administered by the Bureau of Land Management, the

Bureau of Reclamation, the Nation Park Service, the National Forest

Service and other federal agencies. Finally, the State of Arizona owns

14% of the total land base. /d. at 18.

* Id. at 37.

The difficulties experienced in attempting to comply with

federal land use policies at the local level demonstrates

the wisdom of Congress, expressed in 33 U.S.C. § 1251(b)”

to limit the reach of federal land use planning to issues of

truly national concern.

B. Implementation of the Tributary Rule by

the United States by the Corps of Engi-

neers Demonstrates the Impact of Federal

Negulation on Local Land Use Planning

As stated in Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers (““SWANCC”),”

regulation of 'and use is a function traditionally performed

by local governments. Rather than expressing a desire to

readjust the federal-state balance in this manner, Con-

gress chose to recognize, preserve, and protect the primary

responsibilities and rights of States to plan the develop-

ment and use of land and water resources.” Interpretation

of the CWA should preserve the ability to deal with issues

of local concern at the state and community level.and thus

avoid “the significant constitutional and federalism ques-

tions” raised by federal jurisdiction over an entire project

* “It is the policy of the Congress to recognize, preserve, and

protect the primary responsibilities and rights of States to prevent,

reduce, and climinate pollution, to plan the development and use

(including restoration, preservation and enhancement) of land

and water resources, and to consult with the Administrator in the

exercise of his authority under this chapter.” 33 U.S.C. § 1251(b)

(emphasis added).

* 531 U.S. 159, 174 (2001).

" Id., quoting in part from Hess v. Port Authority Trans-Hudson

Corporation, 513 U.S. 30, 44 (1994).

by virtue of an ephemeral wash, stock tank or irrigation

ditch that happens to cross the property.

But the balance has shifted in Arizona. Federal

jurisdiction, based on the application of the tributary rule,

is indeed “pervasive.” For example, the Administrative

appeal decisions of the Corps of Engineers South Pacific

Division, which includes Arizona, illustrate the broad

jurisdictional reach of the term “navigable waters” as

currently applied in Arizona.”

In one such case, the Corps assumed jurisdiction over

a desert wash across private property in Tucson based on

the wash’s connection, through a series of downstream but

apparently unnamed washes, to th anta Cruz River,

which is tributary to the Gila River, which is in turn

tributary to the navigable Colorado River over 200 miles

away. The jurisdictional delineation included a one-foot

wide man-made channel.”

Another case involved a remote stock tank. In Ari-

zona, stock tanks are typically constructed in low areas of

natural drainage to capture runoff for cattle watering

purposes. As such, they are “impoundments” of a tributary

of a navigable water, making the tank itself, under current

Corps policy, a navigable water regulated under the CWA,

even if the hydraulic connection to downstream waterways

* The appeals are conducted pursuant to 33 C.F.R. Part 331. These

decisions are published at the Corps South Pacific Division website at

http//www_spd.usace army.mil/cwpm/public/ops/regulatory/admin/A ppeals/

index.htm. The decisions themselves do not have precedential effect

and are being cited here only for illustrative purposes. 33 C.F.R.

§ 331.7(g).

* Approved Jurisdictional Determination for the Sunrise Office

Park, p. 3 (September 7, 2001).

was thereby severed. In this example, the Corps asserted

jurisdiction over a stock tank based on a historic tributary

connection that “disappeared sometime after 1952.”

Once under the jurisdiction of the CWA, modification

of these dry washes and stock tanks for land development

also requires administrative compliance with NEPA and

ESA. For example, in Defenders of Wildlife v. Flowers, 414

F.3d 1066 (9th Cir. 2005) (petition for rehearing pending),

a private real estate development became embroiled in an

ESA dispute because the landowner sought a § 404 permit

to impact 0.78 acres of a desert wash for road and utility

line crossings.” Despite the smal] impact on the washes

themselves, the United States Fish and Wildlife Service

maintained that “the total impact of the development

which would be authorized by your agency [the Corps]

should be assessed” and that “the footprint of the project

to be permitted by your agency extends beyond the limits

of jurisdictional waters and is, at minimum, the total 440

acres of development.” Thus, for 0.78 acres of impact to

“ “The District stated as clarifying information at the appeal

conference that they considered T-Bone Tank and Wash 1 as within

CWA jurisdiction because of an historical tributary connection from

Wash 1 to Scatter Wash, about 2 miles south of the site, that existed

prior to 1952. The District stated that this connection would have had

an OHWM (Ordinary High Water Mark] prior to 1952. The District

further stated that this tributary connection with an OHWM between

T-Bone Tank and Scatter Wash disappeared some time after 1952.”

Administrative Appeal Decision, Approved Geographic Jurisdiction for

the Valley Vista Property, p. 2, Los Angeles District, File number 2002-

01321-SDM (January 31, 2003).

™ The precise facts of the case are set forth in more detail in the

unpublished deasion of the district court, Defenders of Wildlife v.

Flowers, 2003 WL 22145716 (D. Ariz. August 18, 2003).

™ Id. at *4.

dry washes over 150 miles from the Colorado River, the

entire development was subject to intensive regulation

under the ESA.”

Nor are these cases isolated instances. Because so

much land in Arizona has these small washes, federal

permits under § 404 of the CWA are frequently required. If

then subjected to consultation under § 7 of the ESA, the

landowner can be regulated to the point of requiring new

residents to maintain their pets on leashes.”

These cases illustrate the impact of finding navigable

waters in the arid “dry-lands” of Arizona. The result is

federally mandated land use planning in areas outside the

traditional reach of the Commerce Clause of the United

States Constitution.” This federal role should be limited

by more clearly articulated standards on the federal

“nexus” required to assert jurisdiction under the Com-

merce Clause.

” The Corps had issued a “no effect” determination on the impact

to the cactus ferruginous pygmy-ow! based on the fact that no pygmy-

owls had been found to live within the project area and that the critical

habitat designation, which had once applied, had been vacated by the

district court and affirmed on appeal. 414 F.3d at 1070.

“ The biological opinions issued in response to § 404 permit

applications in Arizona may be found on the Arizona Ecological Services

Office website under the Document Library tab, http-//arizona

es. fws gov. The reference made here is to the opinion issued for a mixed-

use development in Marana, Arizona dated July 9, 2003, at p. 5.

*” U.S. Const., Art. 1, § 8, cl. 3.

C. The Reach of the Federal CWA Should be

Limited to Matters within the Proper Am-

bit of the Commerce Clause

As noted in United States v. Morrison, 529 U.S. 598,

617-18 (2000), “(t]he Constitution requires a distinction

between what is truly national and what is truly local.”

These words speak well to the issue of defining “waters of

the United States” in terms that extend the reach of the

federal permitting programs under the CWA. Permitting

at the federal level is cumbersome, expensive and time

consuming. It is necessary when national issues are at

stake, but it is inappropriate when federal permitting

requirements operate to displace local authority, and

responsibility, for insuring the local welfare.

Soon after the adoption of the CWA in 1972, EPA

began developing regulations to define “waters of the

United States.” EPA’s General Counsel viewed the deletion

of the word “navigable” from the definition of “waters of

the United States” as “significant”:

The [legislative history] indicates that the new

definition of “navigable waters” is to “be given

the broadest possible constitutional interpreta-

tion unencumbered by agency determinations

which have been made or may be made for ad-

ministrative purposes.“

Counsel then opined on the types of waters that would

be regulated, and included both navigable waters and

tributaries of navigable waters in the list.“ Later that

“ EPA General Counsel Opinion (Feb. 6, 1973), quoting S. Rept.

No. 92-1236 at 144.

“ Id.

same year, EPA issued its regulations defining “waters of

the United States” and, in apparent reliance on the coun-

sel opinion, included “[t]ributaries of navigable waters of

the United States” as a category of jurisdictional waters.”

In its initial rulemakings, the Corps defined “naviga-

ble waters of the United States” in its regulations without

reference to tributaries.” The 1974 revisions to the defini-

tion of “navigable waters” more fully addressed the CWA

amendments, but still made no reference to tributaries.“

This interpretation was challenged in Natural Resources

Defense Council v. Callaway (NRDC),“ where the court

held that Congress intended to assert “federal jurisdiction

over the nation’s waters to the maximum extent permissi-

ble under the Commerce Clause of the Constitution” and

that the term “navigable waters” was “not limited to the

traditional tests of navigability.”” The court therefore held

that the Corps’ limited exercise of jurisdiction over tribu-

taries was unlawful.

Within weeks of the NRDC decision, the Corps pro-

posed regulations on how to define “waters of the United

States.’ The Corps proposed two basic alternatives for

regulating tributaries. The first would regulate “all navi-

gable waters up to their headwaters and all tributaries of

navigable waters up to their headwaters.” The second, less

expansive definition (and the one favored by the Corps)

“ See 37 Fed. Reg. 18289 (Sept. 9, 1972).

“ 39 Fed. Reg. 12115 (April 3, 1974).

“ 392 F. Supp. 685 (D.D.C. 1975).

“ 392 F. Supp at 686.

” 40 Fed. Reg. 19766 (May 6, 1975).

would regulate all navigable waters up to their headwa-

ters and al] “primary” tributaries of such wat.)= up to

their headwaters.“

By July of 1975, however, the Corps’ published “in-

terim final regulations” that selected the broadest possible

regulatory approach to tributaries. In this rule, navigable

waters were defined to include “{a]l] tributaries of naviga-

ble waters of the United States up to their headwaters and

landward to their ordinary high water mark.”” The pre-

amble stated that “[w]ith respect to the inland areas of the

country, Corps jurisdiction under Section 404 of the [CWA]

would extend to ... all tributaries (primary, secondary,

tertiary, etc.) of navigable waters of the United States.”

The Corps’ 1977 final regulations modified this definition

of tributaries to exclude the headwater requirement.”

In 1978, EPA published proposed revisions to its

definition of waters of the United States that would have

broadened the 1973 definition to include additional wa-

ters.” The change was proposed “to more accurately reflect

which waters are subject to the requirements of the [CWA].

Consistent with legislative history, judicial interpretations,

and longstanding EPA policy, the term covers all waters

which may be regulated by the Federal Government within

“ 40 Fed. Reg. at 19767.

* 40 Fed. Reg. 31320, 31323-24 (July 25, 1975).

” 42 Fed. Reg. 37122, 37144 (July 19, 1977).

" 43 Fed. Reg. 37078 (August 21, 1978).

constitutional limits....”” In 1982, the Corps regulations

were brought in line with EPA's.”

Thus, prior to SWANCC, supra, the general view of

EPA and the Corps regarding the scope of their jurisdic-

tion under the CWA was that, by leaving out the word

“navigable,” Congress intended to regulate all waters that

could be reached through Congress’ plenary authority over

interstate commerce. This view was unequivocally rejected

by this Court in SWANCC: “We cannot agree that Con-

gress’ separate definitional use of the phrase “waters of

the United States” constitutes a basis for reading the term

“navigable waters” out of the statute. ... The term “navi-

gable” has at least the import of showing us what Con-

gress 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.”

Yet, as demonstrated by the two consolidated cases

currently before the Court, the tributary rule continues to

rest on the faulty presumption of this expansive jurisdic-

tion, notwithstanding Congress’ explicit recognition of the

rights of States in 33 U.S.C. § 1251(b) of the CWA.

In these consolidated cases, the United States Army

Corps of Engineers has asserted, and the Court of Appeals

for the Sixth Circuit has affirmed, jurisdiction over wetlands

on private property because the wetlands are adjacent to

(revised definition).

“ 33 CFR. * 323.3(a)(5) (1982).

“ 531 US. 172.

drainage ditches that are deemed, by virtue of the tribu-

tary rule, to be navigable waters.

In Carabell, the court noted:

[T]he unnamed ditch running along the hypote-

nuse of the Carabells’ triangle-shaped property is

separated from wetlands only by a man-made

berm or barrier. At its northeastern end, the

ditch is connected to the Sutherland-Oemig

Drain, a drain that empties into the Auvase

Creek, which, in turn, empties into Lake St.

Clair, which connects to Lake Huron and Lake

Erie. At its southwestern end, the ditch is con-

nected to other ditches, which - like the Suther-

land-Oemig Drain — outlet into the Auvase Creek

and eventually into Lake St. Clair. The ditch,

then, is connected on either end to tributaries of

“waters of the United States” as defined in the

regulations.”

In Rapanos, the district court had originally noted, in

reference to the Salzburg site:

The government argues that Defendant’s wet-

lands had a “surface hydrological connection” to a

ditch dubbed the Labozinski drain, which emp-

ties into Hoppler Creek, which eventually winds

its way into the Kawkawlin River, which in turn

flows into Saginaw Bay. The nearest body of

navigable water to Defendant’s property is the

Kawkawlin River. ... Thus, the nearest body of

“ 391 F.3d at 708.

navigable water to Defendant’s property is

roughly twenty linear miles away.”

The Court of Appeals affirmed jurisdiction under the

CWA in both instances on the principle that the “hydro-

logical connection” provided a “significant nexus” between

the wetlands and the tributaries to navigable waters.”

Importantly, the Court of Appeals acknowledged in its

reasoning:

Since SWANCC this court has noted:

* * *

There is also a nexus between a navigable wa-

terway and its nonnavigable tributaries. . . . This

nexus, in light of the “breadth of congressional

concern for protection of water quality and

aquatic ecosystems,” is sufficient to allow the

Corps to determine reasonably that its jurisdic-

tion over the whole tributary system of any navi-

gable waterway is warranted.”

This hard and fast rule should not pass constitutional

scrutiny under Morrison or SWANCC because it knows no

bounds between issues of national or local concern. For the

reasons discussed in the next section, the rule adopted by

the Court of Appeals for the Sixth Circuit is legally erro-

neous should be reversed. A more moderate approach to

federal land use control should be adopted.

“ United States v. Rapanos, 190 F. Supp. 2d 1011, 1014-15 (E.D.

Mich. 2002).

* See Rapanos, 376 F.3d at 642; Carabell, 391 F.3d at 710.

“ Carabell, 391 F.3d at 709-710, quoting from United States v.

Rapanos, 339 F.3d 447, 452 (6th Cir. 2003).

D. The Tributary Rule Impermissibly Continues

to Regulate All Tributaries, Regardless of

Their Relationship to Downstream Naviga-

ble Waters.

The blanket nature of the current tributary rule

mirrors the now-discarded migratory bird rule at issue in

SWANCC.” Like the migratory bird rule, the tributary

rule was developed as a way to broadly identify any and

all waters that Congress could conceivably regulate under

its interstate commerce authority, regardless of navigabil-

ity. Like the migratory bird rule, the tributary rule reaches

too far.

First, there is no definition of “tributary” in the rules.

Courts have been left to develop their own ad hoc defini-

tions or defer to the Corps’ judgment. See Headwaters, Inc.

v. Talent Irrigation Dist, supra (quoting the dictionary

definition of tributary as “a stream which contributes its

flow to a larger stream or other body of water.”).” See also

United States v. Deaton, supra (“We conclude that the

regulation is ambiguous on the question of how far the

coverage of tributaries extends. We therefore turn to the

agency’s interpretation. ... In short, the word ‘tributaries’

in the regulation means what the Corps says it means.”).”

Headwaters and Deaton both proceed from the as-

sumption that blanket regulation of tributaries is constitu-

tionally permissible. Yet the assumption itself — that all

tributaries of navigable waters, no matter how far removed,

and no matter how limited the hydraulic connection, can be

” 531 U.S. 163-164 (discussion of migratory bird rule).

“ 332 $.2d at 710-11.

regulated — does not pass the “significant nexus” test of

SWANCC.

Rather, the reasoning of the Court of Appeals for the

Fifth Circuit in Jn re Needham, 354 F.3d 340 (5th Cir.

2003) is more in line with the reasoning of SWANCC.

There, the court held:

[I]n this circuit the United States may not simply

impose regulations over puddles, sewers, road-

side 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.”

We know from experience in Arizona that the reach of

the CWA, in the agency view, extends to the smallest

ephemeral washes, stock tanks and roadside ditches,

regardless of the extent of hydrologic or ecological connec-

tion to navigable waters or aquatic ecosystems. The effect

of the tributary rule, as implemented in Arizona, is to

control land use planning at the federal level by not only

regulating any modification of these small ephemeral

drainages, stock tanks or irrigation ditches, but also by

dictating alternatives and mitigation requirements for the

entire development. Such regulation is not consistent with

Congressional intent, as directly expressed in the CWA,

and runs afoul of constitutional limitations on federal

authority under the Commerce Clause.

IV. CONCLUSION

If “navigable waters” can be defined so broadly as to

include wetlands adjacent to a drainage ditch that is

“roughly twenty miles” from the nearest navigable river,”

virtually every parcel of private land in the State of

Arizona will be classified as subject to jurisdiction under

the CWA because it has a wash, stock tank or irrigation

ditch that is “tributary” to the Colorado River. This rule

results in federal regulation of land use planning at the

micro level that is unnecessary and inconsistent with the

limitations Congress intended on the CWA, as emphasized

by this Court in the SWANCC decision.

The over regulation of land use by the federal agencies

is having a direct impact on the affordability of housing in

Arizona, where only 17% of the State’s land base is in

private ownership. On behalf of the home building indus-

try in Arizona, HBACA asks this Court to reverse the

decision of the Court of Appeals for the Sixth Circuit in

these two consolidated cases and establish better guide-

lines for a determination of the “significant federal nexus”

between navigable-in-fact waters and their tributaries.

Respectfully submitted this 2nd day of December,

2005

MICHAEL J. PEARCE

FENNEMORE CRAIG, P.C.

3003 North Central Avenue

Suite 2600

Phoenix, Arizona 85012

(602) 916-5335

(Counsel of Record)

= ae

PAS aes :

@ as ¥

= seen

‘te =

7s Py

Pea

-a .!

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.