Amicus Curiae Brief — Rapanos v. United States

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Nos. 04-1034 and 04-1384 220

In The

Supreme Court of ha Nate es

JOHN A. RAPANOS, JUDITH A. NELKIE RAPANOS,

PRODO, INC., ROLLING MEADOWS HUNT CLUB,

and PINE RIVER BLUFFS ESTATES, INC.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

*

JUNE CARABELL, KEITH CARABELL,

HARVEY GORDENKER, and FRANCES GORDENKER,

Petitioners,

v.

UNITED STATES ARMY CORPS OF ENGINEERS

and UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

9

On Writs Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

*

AMICUS CURIAE BRIEF ON THE MERITS OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

9

WILLIAM PERRY PENDLEY*

Counsel of Record

RONALD W. OPSAHL

MOUNTAIN STATES LEGAL

FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Clean Water Act prohibition on

unpermitted discharges to “navigable waters” extends to

nonnavigable, intrastate wetlands that do not abut a

navigable water? =

2. Whether extension of the Clean Water Act juris-

diction to every nonnavigable, intrastate wetland with any

sort of hydrological connection to navigable waters, no

matter how tenuous or remote the connection, exceeds

Congress’s constitutional power to regulate commerce

among the States?

1

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED DP i

IDENTITY AND INTEREST OF AMICUS CURIAE... 1

SUMMARY OF THE ARGUMENT 2

. 3

I. STATES HISTORICALLY HAVE REGULATED,

AND CONTINUE TO REGULATE, WET-

LANDS DESPITE FEDERAL ENCROACH-

MENT UPON STATE SOVEREIGN POWERS... 6

II. REMOVING FEDERAL REGULATION WILL

NOT RESULT IN A SIGNIFICANT GAP IN

WETLAND REGULATION. . 10

III. THE FEDERAL AGENCIES’ DEFINITION

OF “WATERS OF THE UNITED STATES”

TO INCLUDE NONNAVIGABLE, INTRA-

STATE WETLANDS IS AN UNREASON-

ABLE INTERPRETATION OF THE CLEAN

WATER ACT AND IS NOT ENTITLED TO

. 1 ——————— 13

IV. THE FEDERAL AGENCIES’ INTERPRETA-

TION AND THE SIXTH CIRCUIT'S RUL-

INGS, EXTENDING CLEAN WATER ACT

JURISDICTION TO NONNAVIGABLE, IN-

TRASTATE WETLANDS WITH ANY HY-

DROLOGICAL CONNECTION TO NAVIG-

ABLE WATERS, EXCEEDS CONGRESS'S

POWER UNDER THE COMMERCE CLAUSE

AND INTRUDES ON TRADITIONAL STATES

TABLE OF AUTHORITIES

Page

CASES

Brecht v. Abrahamson, 507 U.S. 619 (1993) .. .. 5

Carabell u. United States Army Corps of Eng’rs,

Le 16

Chevron, U.S. A., Inc. v. Natural Res. Def. Council,

a, GUNS... 6, 13, 14, 15

FD & P Enters., Inc. u. United States Army Corps of

Engers, 239 F.Supp.2d 509 (D. N. J. 2003) . . ... 4

FERC v. Mississippi, 456 U.S. 742 (1982) ... . 5, 16

Gonzales v. Raich, __ U.S. __, 125 S. Ct. 2195

—— ͤ w oo c 4

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d

BEB GRE Ge FD cccccccccsnstnsnnittncsetaideuimteaimi 4,15

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

4 9 —..ñĩñ ͤÄ—-— ͤ ( 6

Missouri v. Holland, 252 U.S. 416 (1920) .. .. 18

Natural Res. Def. Council u. Callaway, 392 F.Supp.

GBS GRID. BOGE ccc 7

In re Needham, 354 F.3d 340 (5th Cir. 2003). . . .. 4

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

99. ͤͤK nn 5

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Eng’rs, 531 U.S. 159

0 — passim

Treacy v. Newdunn Assocs., LLP, 344 F.3d 407 (4th

8 899. 4. 14

United States v. Fisher, 6 U.S. (2 Cranch) 358

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Lopez, 514 U.S. 549 (1995)..... 5, 17, 18, 19

United States v. Rapanos, 376 F.3d 629 (6th Cir.

— 4, 14, 16

United States v. Rueth Dev. Co., 334 F.3d 598 (7th

ET 4,15

Whalen u Roe, 429 U.S. 589 (1977) . ...e 5

STATUTES

Clean Water Act of 1977, Pub. L. 95-217 (1977)

(codified as amended at scattered sections of 33

L 8

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

— w 3

33 U.S.C. § 1251(b) (§ 10100. ——̃———————.— 5,17

re 12, 13

33 U.S.C. 5 1344(a) (§ 4040 —————————— 3

. ͤ—— 3

Mass. Gen. Laws ch. 131, § 40 (2004) . .... . .... 7

RULES AND REGULATIONS

33 CFR.

ES 4

— 4. 15. 16

40 C. FR.

i — 4, 15

*

TABLE OF AUTHORITIES - Continued

OTHER AUTHORITIES

Ass’n of State Wetland Managers, Model State

Wetland Statute to Close the Gap Created by

SWANCC (2001), available at http://www.aswm.

rn

Jonathan H. Adler, The Fable of Federal Environ-

mental Regulation: Reconsidering the Federal

Role in Environmental Protection, 55 Case W.

SRD. So, GEIR Gp GD ccsecsnsscscmsscsscmseenscssngesnccmsen

Jonathan H. Adler, Swamp Rules: The End of

Federal Wetland Regulation? 22 Reg. 11 (1999) ......

Jonathan H. Adler, Wetlands, Waterfowl, and the

Menace of Mr. Wilson: Commerce Clause Juris-

prudence and the Limits of Federal Wetland

Page

— 11

Regulation, 29 Envtl. L. 1 (1999). passim

William L. Andreen, The Evolution of Water Pollu-

tion Control in the United States State, Local,

and Federal Efforts, 1789-1972: Part I, 22 Stan.

OO

Drew Caputo, A Job Half Finished: The Clean Water

Act after 25 Years, 27 Envtl. L. Rep. 10574 (1997)......

N. William Hines, Nor Any Drop to Drink: Public

Regulation of Water Quality, 52 Iowa L. Rev. 186

——

Oliver A. Houck & Michael Rolland, Federalism in

Wetlands Regulation: A Consideration of Delega-

tion of Clean Water Act Section 404 and Related

Programs to the States, 54 Md. L. Rev. 1242

——ꝛ——ñ———ñ᷑ ñ —

vi

TABLE OF AUTHORITIES - Continued

Jon A. Kusler, Federal, State, and Local Govern-

ment Roles and Partnerships for Fair, Flexible,

and Effective Wetland Regulation (Ass'n of State

Wetland Managers 1994hhhh)))))

Jon A. Kusler, State Wetland Regulation: Status

and Emerging Trends (Ass n of State Wetland

0 eens

Natural Resources Conservation Service, National

Resources Inventory - 2002 Annual MRI (2004)........

Cymie Payne, Local Regulation of Natural Re-

sources: Efficiency, Effectiveness, and Fairness of

Wetlands Permitting in Massachusetts, 28 Envtl.

Sh, i Ga ecrenesemannsnenstocnsnensenncamenssnentenssiantimenstrssases

C. Victor Pyle, III, Note, Isolated Wetlands Juris-

prudence Post-SWANCC and Resulting Federal

and State Attempts to Fill the Void, 11 South-

eastern Envtl. L.J. 91 (2002).

United States Fish & Wildlife Serv., North Ameri-

can Waterfowl Management Plan (1986), avail-

able at http://www.fws.gov/birdhabitat/NAWMP/

1

AMICUS CURIAE BRIEF OF MOUNTAIN

STATES LEGAL FOUNDATION

Mountain States Legal Foundation (“MSLF”) respect-

fully submits this amicus curiae brief on behalf of itself in

support of Petitioners. Pursuant to Supreme Court Rule

37(2\a), this amicus curiae brief is filed with the written

consent of all parties.

0

IDENTITY AND INTEREST OF AMICUS CURIAE

MSLF is a non-profit, membership, public interest law

foundation dedicated to bringing before the courts those

issues vital to the defense and preservation of individual

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

ethical government, and the free enterprise system.

MSLF’s members include businesses and individuals who

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

number of MSLF’s members work in businesses involved

in the utilization and development of natural resources

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

mental issues. Moreover, MSLF and its members have an

interest in ensuring that federal laws and regulations,

including the Clean Water Act, are implemented and

enforced in a manner consistent with the Constitution of

the United States.

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

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

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

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

contribution to the preparation or submission of this brief.

2

SUMMARY OF THE ARGUMENT

The federal government’s imposition of jurisdiction

purportedly in accordance with the Clean Water Act may

not extend to nonnavigable, intrastate wetlands that do

not abut navigable waters. Further, extension of jurisdic-

tion to every nonnevigable, intrastate wetland with even

the most tenuous or remote of hydrological connections

exceeds Congresss constitutional powers to regulate

commerce among the States. One of a State’s traditional

roles includes the right to regulate land use within the

State.

Historically, States have employed their au hority

over land use to regulate uses that would affect wetlands.

In fact, long before enactment of the Clean Water Act,

many States had passed laws to regulate land use in

wetland areas. Indeed, despite the encroachment on

States’ traditional roles by the federal government, States

continue to regulate wetlands. As a result, the removal of

the unconstitutional imposition of federal jurisdiction over

nonnavigable, intrastate wetlands would result in little, if

any, gap in wetland protection, as States resume primary

enforcement of land use.

Moreover, given this Court’s decision in Solid Waste

Agency of Northern Cook County v. United States Army

Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”), the

federal government’s inclusion of nonnavigable, intrastate

wetlands within the definition of “waters of the United

States” is unreasonable and not entitled deference. To

extend jurisdiction to these wetlands exceeds Congress's

authority under the Commerce Clause, and therefore

3

cannot be a reasonable interpretation of the Clean Water

Act’s definition of “waters of the United States.”

*

ARGUMENT

Petitioners are accused of filling wetlands on their

properties without a federal permit in purported violation

of section 404 of the Federal Water Pollution Control Act

(“Clean Water Act” or “CWA”), 33 U.S.C. 5 1344. The

properties at issue entail nonnavigable, intrastate wet-

lends that do not abut navigable waters, but instead are

separated, by distances ranging from approximately one

mile to as far as 20 miles, from the nearest navigable

water. Despite that these remote wetlands are not adja-

cent to waters of the United States and have only an

attenuated, if any, connection to navigable waters, the

federal government has asserted jurisdiction over Peti-

tioners’ properties under section 404 of the CWA.

To the detriment of private landowners and in conflict

with the authority of the States to regulate lands within

their borders, the federal government has employed an

expansive interpretation of its jurisdiction over “waters of

the United States.” The federal government now interprets

On its face, CWA section 404 requires landowners to obtain a

permit from the United States Army Corps of Engineers in order to

discharge dredged or fill material into “navigable waters.” 33 U.S.C.

§ 1344(a). “Navigable waters” has been defined by Congress as “waters

of the United States, including the territorial seas.” Jd. § 1362(7). In

regulation, the Corps of Engineers has defined “waters of the United

States” to include waters that are navigable in fact, waters subject to

tidal forces, all interstate waters including interstate wetlands, and all

other waters “such as intrastate... wetlands ... the use, degradation or

destruction of which could affect interstate or foreign commerce.”

(Continued on following page)

4

its jurisdictional authority under the CWA to include

“adjacent waters” of “wetlands” where the only nexus

between the “wetlands” and navigable waters is the mere

presence of some purported “hydrological connection.”

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

2004). Such an expansive interpretation of the CWA has

never been sustained by this Court and was soundly

rejected in SWANCC. 531 U.S. 159 (2001). Moreover, the

federal government's interpretation of its jurisdictional

authority under the CWA raises serious constitutional

questions and creates a distinct conflict among the Courts

of Appeals and confusion among administrative agencies.

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

SWANCC broadly to limit the CWA to navigable and non-

navigable waters that directly abut navigable waters); FD

E P Enters., Inc. v. United States Army Corps of Eng’rs,

239 FSupp 2d 509 (D.N.J. 2003) (same); but see Rapanos,

376 F.3d 629 (6th Cir. 2004) (interpreting SWANCC

narrowly to hold that the CWA reaches inland waters that

purportedly share a hydrological connection with naviga-

ble waters); Treacy v. Newdunn Assocs., LLP, 344 F.3d 407

(4th Cir. 2003) (same); United States v. Rueth Dev. Co., 334

F.3d 598 (7th Cir. 2003) (same); Headwaters, Inc. v. Talent

Irrigation Dist., 243 F.3d 526 (9th Cir. 2001) (same).

One of the most fundamental principles of America’s

system of government is the protection of “historic spheres

of state sovereignty from excessive federal encroachment.”

Gonzales v. Raich, US. __, 125 S.Ct. 2195, 2220

33 CFR § 328.3(1)a) (emphasis added); see also 40 CFR § 122.2

(providing the Environmental Protection Agency's definition of “waters

of the United States,” which is substantially identical to 33 CFR

§ 328.3(1Xa)).

5

(2005) (O'Connor, J., dissenting); United States u. Lopez,

514 U.S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 37 (1937). It is well established that the

core police powers of the States always have included the

authority to protect the health, safety, and welfare of their

citizens. Brecht v. Abrahamson, 507 U.S. 619, 635 (1993);

Whalen v. Roe, 429 U.S. 589, 603 n.30 (1977). Included

within the basic, fundamental functions of State and local

governments is the power to regulate land use planning

and zoning. FERC v. Mississippi, 456 U.S. 742, 768 n.30

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

tial state activity”); see SWANCC, 531 U.S. at 174 (recog-

nizing the “States’ traditional and primary power -over

land and water use”); 33 U.S.C. § 1251(b) (“It is the policy

of the Congress to recognize, preserve, and protect the

primary responsibilities and rights of States ... to plan

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

However, when a federal regulation infringes on tradi-

tional State functions, that regulation is inherently sus-

pect, as Chief Justice Marshall noted:

Where rights are infringed, where fundamental

principles are overthrown, where the general

system of laws is departed from, the legislative

intention must be expressed with irresistible

clearness to induce a court of justice to suppose a

design to effect such objects.

United States v. Fisher, 6 U.S. (2 Cranch) 358, 390 (1805).

In its brief, Amicus MSLF will demonstrate that not

only has regulation of wetlands historically been a func-

tion of State and local governments, but also such regula-

tion continues to be exercised by State and local

governments, despite the encroachment of federal regula-

tion upon their sovereign functions. Further, although

6

administrative agencies are given deference in interpret-

ing the statutes in their charge, Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 843-845

(1984), the agency’s interpretation must not be “arbitrary,

unreasonable, cr manifestly contrary to the statute.” Id. at

843-844. The authority Congress grants the agency to

interpret its statutes cannot exceed in scope the powers

granted Congress by the Constitution. McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819). Because the

federal government’s interpretation of the CWA, extending

jurisdiction to wetlands with the slimmest of purported

“hydrological connections” to navigable waters, is an

impermissible reading of the CWA, and because federal

jurisdiction over such waters exceeds Congress’s constitu-

tional powers, this Court should reverse the decisions of

the Sixth Circuit Court of Appeals and hold that the CWA

does not reach these nonnavigable, intrastate wetlands.

I. STATES HISTORICALLY HAVE REGULATED,

AND CONTINUE TO REGULATE, WETLANDS

DESPITE FEDERAL ENCROACHMENT UPON

STATE SOVEREIGN POWERS.

The 1969 Cuyahoga River fire, in part, led to the

enactment of the Clean Water Act. See, e.g., Drew Caputo,

A Job Half Finished: The Clean Water Act after 25 Years,

27 Envtl. L. Rep. 10574, 10576 (1997). However, long

before that fire, throughout the 1950s and 1960s, State

and local governments had recognized the importance of

environmental quality and had adopted first generation

environmental controls. Jonathan H. Adler, The Fable of

Federal Environmental Regulation: Reconsidering the

Federal Role in Environmental Protection, 55 Case W. Res.

L. Rev. 93, 95 (2004); N. William Hines, Nor Any Drop to

7

Drink: Public Regulation of Water Quality, 52 Iowa L. Rev.

186, 234 (1966); William L. Andreen, The Evolution of

Water Pollution Control in the United States—State, Local,

and Federal Efforts, 1789-1972: Part I, 22 Stan. Envtl. L.J.

145, 191.2003). “The regulation of wetlands, particularly

when nonpolluting activities are involved, entail the

regulation of a myriad of ordinary land uses, from building

homes to filling ditches, and so on. . . . As such, the regula-

tion of wetlands is a traditional state function, much like

zoning. Thus, it should be no surprise that literally thou-

sands of local governments regulate the use and modifica-

tion of wetlands.” Jonathan H. Adler, Wetlands, Waterfowl,

and the Menace of Mr. Wilson: Com, nerce Clause Jurispru-

dence and the Limits of Federal Wetland Regulation, 29

Envtl. L. 1, 36 (1999); Jon A. Kusler, Federal, State, and

Local Government Roles cnd Partnerships for Fair, Flexi-

ble, and Effective Wetland Regulation 1 (Ass’n of State

Wetland Managers 1994).

In fact, years before the United States District Court

for the District of Columbia “asserted federal jurisdiction

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

ble under the Commerce Clause of -the Constitution,”

Natural Res. Def. Council v. Callaway, 392 F.Supp. 685,

686 (D.D.C. 1975), in 1963, Massachusetts had enacted the

Nation’s first statute requiring a State permit before

filling or dredging coastal wetlands. Cymie Payne, Local

Regulation of Natural Resources: Efficiency, Effectiveness,

and Fairness of Wetlands Permitting in Massachusetts, 28

Envtl. L. 519, 534 (1998). In 1965, inland wetlands were

afforded orotections under the State permit system, and,

in 1972, regulations to protect floodplains were added. Id.

Mass. Gen. Laws ch. 131, § 40 (2004). By 1972, when Con-

gress enacted the CWA, other States, including Connecticut,

8

Georgia, and Washington were enacting wetland protec-

tion statutes. Adler, supra, 29 Envtl. L. at 48. “Although

Massachusetts was the first state to enact an explicit

wetlands protection statute, many localities had already

done so. The Massachusetts law was itself based on a

number of local zoning permit requirements already to be

found in coastal states.” Jd. (internal quotation omitted).

By 1975, when Callaway was decided, every coastal

State, except Texas, had adopted coastal wetland protec-

tions of some kind, and eleven States had enacted statutes

protecting freshwater wetlands as well. Jd.; Jon A. Kusler,

State Wetland Regulation: Status and Emerging Trends 1

(Ass’n of State Wetland Managers 1994). More impor-

tantly, fourteen of the fifteen States that have ten percent

or more of their landmass covered by wetlands had en-

acted their first wetland protection laws by 1975. Adler,

supra, 29 Envtl. L. at 49 (“Moreover, most of these states

have some form of protections [sic] for both inland and

coastal wetlands.”). It was not until 1977 that Congress

codified the Callaway decision expanding federal jurisdic-

tion, and, even then, Congress stopped short of explicitly

authorizing federal regulation of wetlands. Clean Water

Act of 1977, Pub. L. 95-217 (1977) (codified as amended at

scattered sections of 33 U.S.C.).

While many States had yet to enact wetland conserva-

tion statues before 1975, that fact alone is unpersuasive.

“The mere existence of a federal regulatory program likely

provides states with a substantial incentive not to regulate

themselves. Once a federal program is in place, states are

likely to devote their resources to other priorities, rather

than duplicate the federal efforts.” Jonathan H. Adler,

Swamp Rules: The End of Federal Wetland Regulation? 22

Reg. 11, 14 (1999).

9

Despite the incentive not to act, many States enacted

wetland conservation programs to supplement or augment

federal efforts, or to protect wetlands beyond the reach of

the federal government but well within the State and local

government’s authority regarding land use. Fifteen States

have regulatory statutes protecting freshwater wetlands.

In addition, other States protect wetlands through various

programs and regulatory schemes, including shoreline or

coastal zone protection programs. Adler, supra, 29 Envtl.

L. at 50. Several States have even gone so far as to assume

authority to enforce CWA section 404 permitting from the

Corps of Engineers. Jliver A. Houck & Michael Rolland,

Federalism in Wetlands Regulation: A Consideration of

Delegation of Clean Water Act Section 404 and Related

Programs to the States, 54 Md. L. Rev. 1242, 1261-1288

(1995). Other States have assumed authority over the

regulation of isolated wetlands following this Court’s

decision in SWANCC through their CWA section 401 water

quality certification programs. C. Victor Pyle, III, Note,

Isolated Wetlands Jurisprudence Post-SWANCC and

Resulting Federal and State Attempts to Fill the Void, 11

Southeastern Envtl. L.J. 91, 101-108 (2002). There is no

reason to believe that States will discontinue their wet-

land programs if federal enforcement were not present;

indeed, that States have continued to regulate wetlands,

in the face of federal regulation, point to States’ willing-

ness and capability to enforce their own wetland conserva-

tion programs.

10

II. REMOVING FEDERAL REGULATION WILL

NOT RESULT IN A SIGNIFICANT GAP IN

WETLAND REGULATION.

The conventional wisdom holds that federal regulation

is necessary because State efforts and nonregulatory

initiatives are ineffective in safeguarding environmental

values, resulting in a “race to the bottom.” Adler, supra, 22

Reg. at 12. However, ſtlhe history of wetland conservation

efforts suggests that states were hardly the environmental

laggards that many suppose.” Jd. at 12. As illustrated

above, not only did many States begin to protect wetlands

before the federal government, States continue to develop

new approaches to wetland conservation. Additionally,

there are substantial nonregulatory conservation efforts

that show great promise in preventing the destruction of

wetlands on private property. After all, more than seven

percent of nonfederal land in the 48 contiguous States,

nearly 111 million acres, is covered by wetlands, mostly in

the eastern United States. Natural Resources Conserva-

tion Service, National Resources Inventory - 2002 Annual

NRI (2004).

Where State regulatory programs have been estab-

lished, they generally have slowed wetland destruction.

Adler, supra, 29 Envtl. L. at 51. For example, since 1972

when Virginia enacted its first wetland protection statute,

“documented alteration of [Virginia’s] wetlands dropped

dramatically ... from over 500 to less than 20 acres per

year.” Id. Likewise, Maryland has reduced its annual

wetland losses and has prevented far more wetland

destruction than would have occurred under the CWA

alone. Jd. In fact, many States impose broader restrictions

than the Corps of Engineers may under the CWA. In

Maryland, “virtually any activity which may impact the

11

wetland is regulated under its wetland protection statute.”

Id. (internal quotation omitted). In addition, several

States enforce sizable buffer zones protecting their wet-

lands, including New York’s 100-foot buffer and Mary-

land’s 25- to 50-foot buffer. Id.

Further, State and local wetland regulation is more

likely to devote scarce resources to the greatest environ-

mental concerns. “Federal regulators, regardless of their

intentions or regulatory authority, are inherently limited

in their ability to regulate wetlands.” Jd. at 53. Although

there are more then 100 million acres of wetlands in the

contiguous United States, fewer than 1,200 full-time Corps

of Engineers employees are tasked with wetland regula-

tion approximately 90,000 acres per employee. Id. at 52-

53. State and local regulators are better able to provide

their local communities with the certainty, predictability,

and equity that they seek. Virtually every State and local

government maps wetlands as part of its regulatory

process yet no federal jurisdictional maps are available to

allow landowners to determine conclusively whether or not

their properties are wetlands subject to federal jurisdic-

tion. Jd. at 53.

Since this Court’s decision in SWANCC, several

options have been proposed to close any gaps left in the

regulation of isolated wetlands, including the proposal of a

model State wetland statute created by the Association of

Wetland Managers. Ass’n of State Wetland Managers,

Model State Wetland Statute to Close the Gap Created by

SWANCC (2001), available at http://www.aswm.org/swp/

model-leg.pdf. This model statute could easily be modified

to include the type of nonnavigable, intrastate wetlands at

issue in the case at bar. Further, States without compre-

hensive wetland statutes could look to several other States

12

for examples of effective legislation. Therefore, there will

be little lag time between the determination that the

federal government lacks jurisdiction over the lands at

issue in this case and the reestablishment of State protec-

tion efforts.

In addition to State and federal regulatory programs,

several nonregulatory programs are available to protect

wetlands. Beginning in the 1980s, Congress created a new

generation of wetland conservation programs: the North

American Waterfowl Management Plan in 1986, the

United States Fish and Wildlife Service’s Partners for Fish

and Wildlife program in 1987, and the Natural Resource

Conservation Service’s Wetland Reserve Program in 1990.

See, e.g., United States Fish & Wildlife Serv., North Ameri-

can Waterfowl Management Plan (1986), available at http://

www fws.gov/birdhabitat/NAWMP/images/NAWMP pdf. These

three programs have “restored an estimated 160,000-plus

acres of wetlands per year from 1992 through 1996, at the

relatively low cost of $1,000 per acre or less.” Adler, supra,

22 Reg. at 16; Adler, supra, 29 Envtl. L. at 56. In contrast,

the cost of CWA section 404 mitigation projects “can reach

as high as $30,000 per acre, not including the legal and

other costs borne by the permit applicant.” Adler, supra, 22

Reg at 16.

Furthermore, private conservation efforts have proven

very effective in wetland protection. For example, Ducks

Unlimited, a private conservation group, restored or

enhanced more then 50,000 acres of wetlands in 1994

alone. Adler, supra, 29 Envtl. L. at 59. The overall effect of

national environmental groups, such as the Nature Con-

servancy, and local or regional groups, such as the Chesa-

peake Wildlife Heritage, a group focusing on wetland

restoration projects in the Chesapeake Bay area, taken in

13

conjunction with the federal and State nonregulatory

programs undoubtedly results in far greater wetland

conservation then CWA section 404 possibly could. All

tolled, State programs, nonregulatory federal programs,

and private conservation efforts are quite capable of filling

any perceived gap left after federal section 404 enforce-

ment over nonnavigable, intrastate wetlands is held to be

unconstitutional.

III. THE FEDERAL AGENCIES’ DEFINITION OF

“WATERS OF THE UNITED STATES” TO IN-

CLUDE NONNAVIGABLE, INTRASTATE WET-

LANDS IS AN UNREASONABLE INTERPRE-

TATION OF THE CLEAN WATER ACT AND IS

NOT ENTITLED TO DEFERENCE.

When the terms of a statute are clear, courts provide

little room for agency interpretation of those terms;

however, when Congress delegates authority to enforce a

statute to a governmental agency, while leaving some

ambiguity in how the agency is to enforce the statute,

courts should assume that Congress impliedly delegated

the authority to interpret the ambiguity to the agency

charged with administering the statute. Chevron, 467 U.S.

at 843-845. Unless the agency's interpretation of the

statute is “arbitrary, unreasonable, or manifestly contrary

to the statute,” the agency interpretation should be ap-

plied. Id. at 843-844. However, this Court has refused to

grant Chevron deference to agency interpretations that

raise significant constitutional questions, such as whether

Congress had the power to regulate the waters at issue

here under the Commerce Clause. SWANCC, 531 U.S. at

681-683.

14

As a result of the Court's ruling in SWANCC, the

Sixth Circuit’s reliance on Chevron deference is misplaced.

Rapanos, 376 F.3d at 640-641. In SWANCC, this Court

was presented with the question of whether the Corps of

Engineers’ regulation interpreting section 404, the very

regulation at issue here, properly extended federal juris-

diction to intrastate waters used as habitat by migratory

birds. 531 U.S. 159. In rejecting the Corps’ arguments, this

Court found the terms of the CWA clear, and limited the

scope of federal jurisdiction to navigable waters or open

waters and those waters, including wetlands, immediately

“adjacent to open water.” Jd. at 168. Though it considered

the governments argument that federal jurisdiction

extended further, this Court determined that the plain

“text of the statute will not allow this.” Jd. at 167-174. In

SWANCC, this Court also determined that the exercise of

CWA jurisdiction over nonadjacent wetlands would raise

“significant constitutional questions” under the Commerce

Clause and that Congress would not be deemed to have

pushed the outer limits of its authority without a “clear

indication” that it intended to do so. Jd. at 172-174. Find-

ing no such indication and, in fact a contrary indication,

this Court invalidated CWA jurisdiction over nonadjacent

wetlands. Jd. at 174.

Despite this Court’s decision in SWANCC, the federal

government continues to assert jurisdiction under the

CWA over nonnavigable, intrastate wetlands such as

decided that SWANCC was a limited ruling and have

affirmed federal regulation of any wetland with any

“hydrological connection” to navigable water, no matter

how distant or tenuous the connection, e.g. Rapanos, 376

F.3d 629 (6th Cir. 2004); Treacy v. Newdunn Assocs., LLP,

15

344 F.3d 407 (4th Cir. 2003); United States u. Rueth Dev.

Co., 334 F.3d 598 (7th Cir. 2003); Headwaters, Inc. v.

Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001), this

Court’s decision in SWANCC is clear: “In its decision, the

Court ... invalidates ... the Corps’ assertion of jurisdic-

tien over all waters except for actually navigable waters,

their tributaries, and wetlands adjacent to each.” Id. at

176-177 (Stevens, J., dissenting). Therefore, because the

Corps’ interpretation of “waters of the United States” is

contrary to this Court’s precedent in SWANCC, Chevron

deference by the Sixth Circuit was misplaced and Peti-

tioners’ properties should have been found to not be within

the jurisdiction of the CWA.

IV. THE FEDERAL AGENCIES’ INTERPRETA-

TION AND THE SIXTH CIRCUIT’S RULINGS,

EXTENDING CLEAN WATER ACT JURISDIC-

TION TO NONNAVIGABLE, INTRASTATE

WETLANDS WITH ANY HYDROLOGICAL

CONNECTION TO NAVIGABLE WATERS, EX-

CEEDS CONGRESS’S POWER UNDER THE

COMMERCE CLAUSE AND INTRUDES ON

TRADITIONAL STATES’ RIGHTS.

The Sixth Circuit, in upholding the federal govern-

ment’s regulation of nonnavigable, intrastate wetlands on

the Petitioners’ properties, has misinterpreted the juris-

dictional limitations of the CWA. The current federal

regulations provide a very broad definition of “waters of

the United States,” encompassing wetlands adjacent to

other bodies of water (other than waters that are themselves

wetlands). 33 C. FR 5 328.3(a); 40 C. FR § 122.2. Moreover,

federal regulations are far more explicit in defining

“adjacent” as “bordering, contiguous, or neighboring,” and

16

“adjacent wetlands” as “wetlands separated from other

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

ers, natural river berms, beach dunes and the like.” 33

C.F.R. § 328.3(c). Yet, the Sixth Circuit concluded that

nonnavigable, intrastate wetlands on the Petitioners’

properties are subject to federal control under the CWA

because of the presence of a “hydrological connection”

establishing a “significant nexus between the wetlands

and ‘navigable waters Rapanos, 376 F.3d at 639; Cara-

bell v. United States Army Corps of Eng’rs, 391 F.3d 704,

710 (6th Cir. 2004). The Sixth Circuit reached this conclu-

sion despite acknowledging that the “wetlands” on the

Petitioners’ properties are not physically adjacent to, or

directly abutting, any navigable water. If the federal

government may regulate all waters with a purported

hydrological connection to any navigable water, no matter

how tenuous or remote the connection, there is virtually

no land that the federal government may not regulate, and

the Commerce Clause has no meaning as a limitation on

Congress’s power. ,

The Sixth Circuit’s holdings disregard totally this

Court's Commerce Clause jurisprudence, and will, if

allowed to stand, permit the federal government to use the

CWA to regulate private property in every State with no

constitutional limit. Moreover, this broadening of federal

jurisdiction under the CWA does not just limit the rights of

landowners, it encroaches upon the very rights of the

States themselves to regulate lands within their borders.

Land use planning, regulation, and zoning are not enumer-

ated powers granted to the federal government. They are

the basic, fundamental functions of local governmental

entities. FERC v. Mississippi, 456 U.S. 742, 768 n.30 (1982)

(“regulation of land use is perhaps the quintessential state

17

activity”). Authority over these functions is reserved,

traditionally, to the States under the Tenth Amendment.

See, SWANCC, 531 U.S. at 174 (recognizing the “States’

traditional and primary power over land and water use”);

see also 33 U.S.C. § 1251(b) (“It is the policy of the Con-

gress to recognize, preserve, and protect the primary

responsibilities and rights of States to plan the devel-

opment and use of land ana vater).

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

whenever Congress attempts to regulate areas tradition-

ally regulated by State or local governments, including the

rights of private property owners, this Court will review

that legislation with caution. 514 U.S. 549, 557-568 (1995).

Foretelling the scrutiny it would apply, this Court rejected,

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

justifications for the Gun-Free School Zones Act (“GFSZA”)

proffered by Congress both because, had it accepted those

justifications, it would be “difficult to perceive any limita-

tion on federal power, even in areas such as criminal law

enforcement or education where States historically have

been sovereign,” and because such a broad reading of the

— Cente Wtes Cee Shp HE epee <

government. Id. at 561 n.3, 564, 567-568.

Likewise, in SWANCC, congressional authority under

the Commerce Clause was tested. In SWANCC, this Court

addressed whether EPA and the Corps could regulate iso-

lated intrastate waters and wetlands that are not connected

or adjacent to navigable waters “based on their actual or

potential use as habitat for migratory birds.” 531 U.S. at 163-

164. This Court held that the migratory bird regulation was

invalid because Congress did not intend to include “isoiated”

wetlands or waters within the term “navigable waters”

when it enacted the CWA. Id. at 162-163.

18

Although the SWANCC decision did not decide

whether federal regulation of nonnavigable, intrastate

wetlands exceeded congressional authority under the

Commerce Clause, this Court did suggest that the Corps’

interpretation may have exceeded that authority. Jd. at

172-173. This Court indicated that the Corps’ regulation of

isolated, intrastate wetlands would raise serious questions

under the Commerce Clause because local land use regula-

tion is a traditional State and local function. Id. at 172-

174. Even though previous rulings had found that migra-

tory bird protection was a “national interest of very nearly

the first magnitude,” this Court determined it was “not

clear” whether the regulated activity or object, in the aggre-

gate, affects interstate commerce. Id. at 173 (quoting Mis-

souri v. Holland, 252 U.S. 416, 435 (1920)). Because there

was no clear statement in the CWA that Congress intended

to give the federal government authority over isolated

wetlands, this Court refused to interpret the regulation to

include “federal jurisdiction over ponds and mudflats falling

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

significant impingement of the States’ traditional and

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

Because local land use and private property rights are

necessarily intertwined, this Court’s holdings in Lopez and

SWANCC control in this matter. The Sixth Circuit’s exten-

sion of federal jurisdiction under the CWA to nonnavigable,

intrastate wetlands that do not abut navigable water sub-

stantially intrudes on the rights of the Petitioners, as private

landowners, and on the sovereign power of the State to

control local land use. Justice Kennedy, concurring in the

Lopez decision, argued that courts should be hesitant to

allow Congress to use the Commerce Clause as its basis for

federal regulation in an “area of traditional state concern”

19

that “States lay claim [to] by right of history and expertise.”

Lopez, 514 U.S. at 580, 583 (Kennedy, J., concurring). Justice

Kennedy elaborated that, with such an expansive definition

of the Commerce Clause, “the boundaries between the

spheres of federal and State authority would blur and

political responsibility would become illusory.” Jd. at 577.

Accordingly, the Sixth Circuit’s upholding of the

federal government’s regulation of nonnavigable, intra-

state wetlands, such as the Petitioners’ property, intrudes

unconstitutionallv on the rights of private landowners to

use their land and the responsibilities of States to regulate

local land use. The repercussions of such unbounded

federal authority over “waters of the United States” are

far-reaching and substantial.

0

CONCLUSION

For the foregoing reasons, Mountain States Legal

Foundation respectfully requests that this Court overturn

the decisions of the Sixth Circuit and hold that the juris-

diction of the Clean Water Act does not reach nonnaviga-

ble, intrastate wetlands such as Petitioners’ properties.

Respectfully submitted,

WILLIAM PERRY PENDLEY*

*Counsel of Record

RONALD W. OPSAHL

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

December 2, 2005