Amicus Curiae Brief — Rapanos v. United States

Court, U.S.

FILED

DEC 2, 2005

OFFICE OF THE CLERK

Nos. 04-1034, 04-1384

In The Supreme Court of the United States

JOHN A. RAPANOS, ET AL.

Petitioners,

v.

UNITED STATES,

Respondent

JUNE CARABELL, ET AL.

Petitioners,

Vv.

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

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF THE PETITIONERS

Duane J. Desiderio

(Counsel of Record)

Thomas J. Ward

Felicia K. Watson

National Association of

Home Builders

1201 15" Street, N.W.

Washington, D.C. 20005

(202) 266-8200

Page

I I CD eisiicicni niente ciictaactiniinib ]

I A I csiciittciinscviipiniciiintideiiidaiicsaiscinispianduii l

IE sicciersentinnintinainihtneininntaenesiinepitbiindinitmiiecimagsis 2

1. DITCHES, MUNICIPAL STORM SEWER

SYSTEMS, AND OTHER POINT SOURCES ARE

NOT CWA “NAVIGABLE WATERS” ..................... 2

EEE REY Sv a ERO ce Re rToweS 3

B. The CWA is Clear: Ditches are. “Point

Sources,” not “Navigable Waters”....................006. 3

C. The “Discharge” Definition Further Clarifies that

Ditches are not “Navigable Waters”’...................... 6

D. Like Ditches, Municipal Storm Sewer Systems are

“Point Sources” and not “Navigable Waters”’........ 8

E. Classifying Ditches and MS4s as “Navigable

Waters” Yields Unreasonable Results ................. 11

Il. WETLANDS ADJACENT TO FEATURES THAT

TABLE OF CONTENTS

ARE NOT “OPEN WATERS” ARE NOT WITHIN

CWA JURISDICTION AS A MATTER OF

A. Riverside Bayview and SWANCC.................0000-+- 13

B. This Court Treats “Open Waters” as Navigable-

FE Hi csiisinicintntsnierticisinnedetadettenipasagiaaciiiibodanieaiads 13

C. Likewise, Federal Agencies Understand “Open

Water” to Mean Navigable-in-Fact Water .......... 14

Ill. TO SATISFY THE “SIGNIFICANT NEXUS”

PRINCIPLE, THE GOVERNMENT SHOULD

PRODUCE PROOF OF DOWNSTREAM EFFECT

ON NAVIGABLE-IN-FACT WATERG................... 16

Bi, FN sincriciictciiciccinhenintariicnsensiainesaitintsiadess 17

i. MIRURINIINIIT scien tcnestesisietiantinalitnagebcnicentmetiin 20

C. Hydrologic Connection Alone does not Satisfy

the “Significant Nexus” Standard ..................04. 22

D. Effect on Navigable-in-Fact Waters Must

be Imported into a “Significant Nexus”

i cisccccccsinsiiisthisiniatabtinbinaiinihedhcetaintalebionionenntic 24

E. Requiring Proof of Effect is Consonant with the

CWA’s Objective to Prevent Actual Discharges

PE i ctitiececciiniasibinancieniiineehisscbihienasidieuebai 26

F. The “Significant Nexus” Standard is Analogous

to a Proximate Cause Requirement..................... 28

SEITE I ESTE A OE LE La RR OS 30

TABLE OF AUTHORITIES

Cases ‘ Page (s)

Am. Tobacco Co. v. Patterson,

a i 1]

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

is ee a Ce CEE iccncnsctniscninncamesienstbicsinpesioiadaasia 28, 29

Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002).......... 4

Bowen v. Georgetown Univ. Hosp.,

es Pe i itcheninsesiisccicieninitetinsictesiianinsiainsdeanintadainnes 8

Carabell v. U.S. Army Corps of Eng'rs,

391 F.3d 704 (6" Cir. 2004)......c.ccccccccsesceseseseseeee 3, 22, 23

Chevron U.S.A, Inc. v. NRDC, Inc.,

I I a 6

Comm 'r of Internal Revenue v. Engle,

464 U.S. 206 (1984) ........cceeeecceseeseeeseee OP Cea aa 11

Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (2004)....29

Econ. Light & Power Co. v. United States,

OI inchs ih ciihessintdaeice diciiiladiiisemembedaabecsnsies 18

Edmond v. United States, 520 U.S. 651 (1997) ................. 5

Envil. Def. Ctr., Inc. v. EPA, 344 F.3d 832

oF MUNI essithicseiccshinicisecissbiiinesiitinanianciiaceici 9

iV

FD&P Enters., Inc. v. U.S. Army Corps of Eng’rs,

239 F. Supp. 2d 509 (D.N.J. 2003) wo... cecccccceeceeeeeeeeees 25

Fourco Glass Co. v. Transmirra Prods. Corp.,

Fe es ee CE i icivsecsscevesoceitisidichiichinaaiitsniindoitsioaiuinilalios 5

Headwaters, Inc. v. Talent Irrigation Dist.,

BAD FSO SOG” Cle, WO saci iceinaieitictietchascepiiis 27

INS v. Cardoza- Fonseca, 480 U.S. 421 (1987) ................ 8

In re Needham, 354 F.3d 340 (5™ Cir. 2003)......c:0se-0ee+0 28

Kotch v. Bd. of River Port Pilot Comm'rs,

FT Wy SE CTR iccccritinmnciiicasibiccdinctllctiatiininmeniiiteanian 14

Lawson v. Suwanee Fruit & S. S. Co.,

FO As SF Ce riiiciiiitcntinebictisiitaassitieiaittiittiiinlaizalsis 4

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26 (1998)..............sccceccssssrssecessereeesseees 11

Metro. Edison Co. v. People Against Nuclear Energy,

UE eFC a ccscitsenininnsscintivnessnsinbivssineniistiniailaeen 29

Morales v. Trans World Airlines, Inc.,

FE Cs PPS Ce evss icinssiphietciiiebiesbinigiaidicumaniatidebnaniindal 5

Mundy v. United States, 22 Ct. Cl. 33 (1990) .........0...0004 17

Nat'l Wildlife Fed'n v. Consumers Power Co.,

DOD Fi SUD OO Cle, 8 ivccesinscccrcscesstecscsseciesosensctiesiui 7

Natural Res. Def. Council, Inc. v. Costle,

568 F.2d 1369 (D.C. Cir, 1977) .....cccccececeseeeeeeseeteeeseeeeees 9

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,

SS Ty Ce aE 19, 20

Phillips Petroleum Co. v. Mississippi,

I 17

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

ican eect’ deed 24, 25, 30

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

Corps of Eng'rs, 531 U.S. 151 (2001) 0.0.0.0... passim

S. Fl. Water Mgmt Dist. v. Miccosukee Tribe of

LE 7

Stenberg v. Carhart, 530 U.S. 914 (2000)... 4

The Daniel Ball, 77 U.S. 557 (1870) ..............0..00000. 17, 18

The Nevada v. Quick, 106 U.S. 154 (1883) ....cc.ccccoc0000-- 14

United States v. 531.10 Acres in Anderson Co., $.C.,

I 17

United States v. Appalachian Power Co.,

a 17, 18, 19, 21

United States v. Buday, 138 F. Supp. 24 1282

a A ne a ae 23

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

cert. denied, 541 U.S. 972 (2004)... 22, 23, 27

vi

United States v. Eidson, 108 F.3d 1336

I ch ia a es 27, 28

United States v. Oregon, 295 U.S. 1 (1935) ......-cc0.c0.c000 14

United States v. Rapanos, 376 F.3d 629 (2004)......... 22, 23

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

(E.D. Mich. 2002), aff'd, 339 F.3d 447 (6" Cir. 2003),

cert. denied, 541 U.S. 972 (2004) .00.0.....cccccccceeeeecenees 3, 22

United States v. Rio Grande Dam & Irrigation Co..

ey I iihpncictichiinisnninesmantireetineneiine 19

United States v. Riverside Bayview Homes, Inc.,

fl Eee 5, 13, 20, 21

United States v. Rogers, 150 U.S. 249 (1893) ................. 14

United States v. Utah, 283 U.S. 64 (1931) ...........ccccc000 17

Waterkeeper Alliance, Inc. v. U.S. Envtl. Prot. Agency,

Fe Fe Se GO > Be ccccsectcnnenncersmesneneteseinss 26, 27

W. Union Tel. Co. v. Lenroot,

EE a 4,5

Statutes

Clean Water Act:

Rf ee eee 6

8 ee eee 2

Be is Ut tt inrtnenienienhnnncnindinaianinimineinniiaiedl 11

oh EE eee a 7

33 U.S.C. § 1342(p)(3)(B) -.ccececcceecooceoes iaeiiteeiah iad 9

vil

33 U.S.C. § 1342(p)(3)(B) iii) «ee ceecccecceeecceeeeeeeeees 10

CM ee 9

ARATE ET TL eT 7

ERE ES en an ND 5

TNE ane ee ee 6

i CI cincierterinttaetticinttighicsietiiataiant a ieimasinssti 45,9

Other Statutes:

Fe ein Ne cthcicmnincinenassenceneniainindiientsetinatnevasinniatenaiains 29

Natural Resources and Environmental Protection act 451

of 1994 (codified at Mich. Comp. Laws § 324.10!

EE EEE EE ee eee ee ae SE ey ee 8

Regulations:

EELS AE ee SOL Oe ae Pee 15

IRS nee OeE 15

Se ia MII: UD i iritentinsintpleannpndannestnenienpseneniistinns 15

EE a a 12

pe ees 3, 4,5

RE RN A RE 4,13

TATE RE aa i)

= 8 aera 10

Se 10

| EE ae ed 1S

8 RE Ree ae aaa aC mae 12

kL See il

eR EE ee 29

as As Sit cerninisieteaecitosenctentecniunpensianennasaies 1S

0 8 EE

ee Oe eenreientinninierstenienetenigrenmutammantenen 29

Vill

Permits for Activities in Navigable Waters,

40 Fed. Reg. 31,320 (July 25, 1975) ...........:ccccccccceceeeeeees 8

National Security Information,

48 Fed. Reg. 21,466 (May 12, 1983) ..............:cccccccceeeceeee 8

Final Rule for Regulatory Programs of the Corps of Eng’rs,

51 Fed. Reg. 41,206 (Nov. 13, 1986)...............0.cccccceeeeees 8

National Pollutant Discharge Elimination System Permit

Application Regulations for Stormwater Discharges,

55 Fed. Reg. 47,990 (Nov. 16, 1990)...................... 10, 11

Issuance of Nationwide Permits; Notice,

67 Fed. Reg. 2020 (Jam. 15, 2002) .............cccccccceceeenennees 8

Mich. Admin. Code R. 323.1 100(5) (1999).......0...00..0000 Il

Other:

78 Am. Jur. 2d Waters § 124 (May 2005) ....................... 17

American Heritage® Dictionary (4 ed. 2000)................ 24

Resp. Cert. Br. in Opp’n,

June Carabell v. U.S. Army Corps of Eng'rs,

No. 04-1384 (U.S. 2005) 2005 WL 1416862 ................ 15

Resp. Cert. Br. in Opp’n,

John A. Rapanos, et al. v. United States,

No. 04-1034 (U.S. 2005) 2005 WL 779568 .................. 15

Design and Construction of Urban Stormwater

Management Systems (Am. Soc’y of Civil Eng’rs

SOU Cie ccssinsttisininiihaisaipsegatenigiahilansipeicinitenintninabaiapitinitnaiinnsinis 10

ix

Dan B. Dobbs, The Law of Torts (2000) ............--ccccvees0-» 29

The Macomb Daily, Boat Jam (June 13, 2003),

available at http://204.176.34.196/macombdaily/

articies.2ep7ID=BSGOSPS..........00icscccccseccerocccsevscsescrsessseeses 14

Memorandum from Ann R. Klee, General Counsel, and,

Benjamin H. Grumbles, Assistant Administrator for

Water, U.S. Environmental Protection Agency, to

Regional Adnunistrators regarding Agency

Interpretation on Applicability of Section 402 of the

Clean Water Act to Water Transfers (Aug. 5, 2005) ..... 10

Marc Reisner, Cadillac Desert: The American West

and its Disappearing Water (rev. ed. 1993)................... 18

I Laurence Tribe, American Constitutional Law

EE GREE conicnicrsiicisinlcuchadesnamitsibinisiiianhlcsdeinsshtegsive _

Ben Urbonas, et al., Stormwater, Best Management

Practices and Detention for Water Quality, Drainage,

and CSO Management (1993)............cccceeesseeerereeeneeneees 10

U.S. Dep’t of Transp., Federal Highway Admin.,

Highway Statistics 2001 § V, Roadway Extent,

Characteristics, and Performance Tbl. HM-10, at

http://www.fhwa.dot.gov/ohim/hs01/hm10.htm

on KR 8 Ee

REST AMI

The National Association of Home Builders

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

this amicus curiae brief supporting Petitioners.' NAHB

represents over 220,000 builder and associate members

throughout the United States, including individuals and

firms that construct and supply single-family homes, as

well as apartment, condominium, multi-family, commercial

and industrial builders, land developers and remodelcrs. Its

members are frequently subject to regulations unu the

Clean Water Act (“CWA”). As a result, NAHB ‘as

developed comprehensive familiarity with the CW s

permitting requirements, provides compliance advice to i

members, and, unfortunately, has witnessed numerous

situations where federal regulators have exercised their

authority beyond the CWA’s limits. NAHB has thus been

before the Court as amicus curiae in the cases listed in

Appendix A (“App. 1a”) to this brief, involving landowners

who have been aggrieved by over-zealous regulation under

the CWA and other statutes and programs.

SUMMARY OF ARGUMENT

(1) Point Sources are not Navigable Waters: The

Court of Appeals ruled that ordinary drainage ditches at the

Rapanos and Carabell sites are “navigable waters.”

Moreover, in Carabeill the ditches drain into, or are part of,

a municipal storm sewer system which has been permitted

under CWA Section 402 to control pollutant discharges.

' Letters of consent are on file with the Clerk. Pursuant to Rule

37.6 of this Court, NAHB states that its counsel authored this

brief. The brief was not written in whole or part by counsel for a

party, and no one other than amicus made a monetary

contribution to its preparation.

2

Congress intended ditches and storm sewers to be regulated

as “point sources,” not as “navigable waters,” and the Court

of Appeals should be reversed accordingly.

(2) Adjacent to “Open Waters”: This Court has held

that wetlands are subject to the CWA if they are

immediately adjacent to “open water.” The Court of

Appeals should be reversed because it stretched the CWA

to reach wetlands immediately adjacent to “point sources.”

(3) “Significant Nexus” Should Consider Downstream

Impact: This Court has established the principle that the

CWA covers non-navigable features with a “significant

nexus” to navigable-in-fact water. A “significant nexus”

inquiry in any given case is highly fact sensitive and must

consider whether upstream activity in a non-navigable

feature causes tangible impact on downstream navigable-in-

fact waters.

ARGUMENT

I. DITCHES, MUNICIPAL STORM SEWER

SYSTEMS, AND OTHER POINT SOURCES ARE

NOT CWA “NAVIGABLE WATERS.”

The CWA’s regulatory scheme, for all its detail, is quite

simple. Congress intended to regulate pollutants going into

“navigable waters,” by requiring permits to control

pollutants coming out of “point sources.” See 33 U.S.C. §

1311(a) (prohibiting the “discharge of pollutants” unless

permitted elsewhere in the Act). The Court of Appeals

never considered this distinction, and should not have

afforded Chevron deference to the Corps’s interpretation

that “point sources” are CWA “navigable waters.”

A. Ditches and Drains.

Rapanos concerns three separate properties in different

Michigan counties: (1) the 175-acre Salzburg site which

lies next to the Labozinski Drain, described by the lower

courts as a manmade ditch. United States v. Rapanos, 190

F. Supp. 2d 1011, 1014 (E.D. Mich. 2092) (a “ditch which

empties into Hoppler Creek”), aff'd, 339 F.3d 447, 449 (6"

Cir. 2003) (a “one hundred year-old manmade drain”); (2)

the 600-acre Hines Road site, which is embroidered with

drainage ditches and is itself drained by a ditch called the

Rose Drain. (Cert. App. B19); and (3) the 49-acre Pine

River site, with onsite wetlands that are adjacent to ditches.

(Cert. App. B24-B25.)

The 19.61 acre Carabell site in Macomb County,

Michigan, is separated from adjacent property by an

unnamed ditch. Sidecasted spoils from the ditch’s

excavation created an upland berm, which blocks drainage

of surface water from the site. The direction of water flow

from the ditch is unclear, although the ditch connects to

another ditch known as the Sutherland-Oemig Drain at the

site’s northeastern corner. Carabell v. U.S. Army Corps of

Eng'rs, 391 F.3d 704, 705-06 (6" Cir. 2004). The

Sutherland-Oemig drain is part of Macomb County’s storm

sewer system, which has received a pollutant discharge

permit from the Michigan Department of Environmental

Quality under Section 402 of the CWA. (App. |b, 6b.)

B. The CWA is Clear: Ditches Are “Point Sources,”

not “Navigable Waters.”

In both cases, the Corps has interpreted its regulations

to deem the ditches in question “tributaries” so as to reach

the wetlands adjacent to them. See 33 C.F.R. § 328.3(a)(5)

4

(tributaries); id. § (a)(7) (adjacent wetlands). The Corps’s

interpretation is unsupported by reference to any rule or

guidance; its regulations do not define “tributary.” For that

matter, “tributary” and “adjacent wetlands” are nowhere

defined in the CWA. Yet, the Court of Appeals deferred to

the Corps’s belief that a ditch is a “navigable water.”

This was wrong. At 33 U.S.C. § 1362(14), Congress

plainly stated that ditches are “point sources”:

The term “point source” means any discernible,

confined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit,

well, discrete fissure, container, rolling stock,

concentrated animal feeding operation, or vessel or

other floating craft, from which pollutants are or may

be discharged .... (Emphasis supplied.)

Exercises in construction “begin with the language of the

statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450

(2002). Obedience to text is especially due when Congress

defines statutory terms. “{W]hen a statute includes an

explicit definition [courts] must follow that definition, even

if it varies from that term’s ordinary meaning.” Stenberg v.

Carhart, 530 U.S. 914, 942 (2000). See also W. Union Tel.

Co. v. Lenroot, 323 U.S. 490, 502 (1945) (“statutory

definitions of terms ... prevail over colloquial meanings”);

Lawson v. Suwanee Fruit & S.S. Co., 336 U.S. 198, 201

(1949) (“Statutory definitions control the meaning of

statutory words ...."). In Section 502(14), Congress could

not have been clearer: a “point source” is any ditch, from

which pollutants are or may be discharged.

CWA Section 502 defines two key terms: “navigable

waters” at subsection (7), and “point source” at subsection

(14). 33 U.S.C. §§ 1362(7), (14). “The term ‘navigable

waters’ means the waters of the United States, including the

territorial seas.” /d. at § 1362(7). By regulation, the Corps

includes “tributaries” within the statutory phrase, “waters of

the United States.” 33 C.F.R. § 328.3(a)(5). “Ditch” is not

included in either the CWA definition or in the Corps’s

regulation, but it is expressly identified in the Act’s

definition of “point source.” Explicit definitions must

prevail. Western Union, 323 U.S. at 502. Accordingly, the

ditches at the Rapanos and Carabell sites are not

“navigable waters.” They are “point sources.”

Additionally, specific statutory provisions govern over

general provisions. See, e.g., Edmond v. United States, 520

U.S. 651, 657 (1997); Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 384 (1992). “However inclusive may

be the general language of a statute, it will not be held to

apply to a matter specifically dealt with in another part of

the same enactment.” /ourco Glass Co. v. Transmirra

Prods. Corp., 353 U.S. 222, 228 (1957) (internal quotes

omitted). Although no specific kind of waterbody is listed

in the “navigable waters” definition, that broad term may

include bays, lakes, sounds, gulfs, rivers, streams and even

non-navigable wetlands right next to truly navigable waters.

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

U.S. 121 (1985). In contrast, Congress “specifically dealt

with [ditches] in another part of the same enactment.” See

Fourco, 353 U.S. at 228 (citations omitted). Under the rule

that specific provisions supersede general ones, the precise

inclusion of “ditch” in the “point source” definition trumps

an interpretation that ditches are somehow penumbral to the

“navigable waters” definition.

Moreover, the “most important” rule of statutory

construction “is the clear statement rule.” I Laurence Tribe,

6

American Constitutional Law, § 5-9 at 853 (3d ed. 2000).

Where, as here, an agency interprets a statute in a manner

that “invokes the outer limits of Congress’ power” or

overrides the “usual constitutional balance of federal-state

powers,” this Court “expect[s] a clear indication that

Congress intended that result” pressed by the agency. Solid

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

Eng 'rs, 531 U.S. 151, 172-73 (2001). The CWA contains

no clear statement that a ditch is a “navigable water”—but

the Act is unequivocal that a ditch is a “point source.” To

avoid difficult federalism questions, and to effectuate

congressional policy “to recognize, preserve, and protect

the primary role of States” in addressing water pollution

(33 U.S.C. § 1251(b)), the Court should reject the

interpretation that an ordinary ditch is a “navigable water.”

Congress “left [no] gap for the agency to fill” in

defining a ditch as a “point source,” not as a “navigable

water.” See Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S.

837, 843-44 (1984). It has spoken to the issue, “that is the

end of the matter,” and the Court must give effect to clearly

expressed legislative intent under Chevron Step 1. /d. at

842. The Court of Appeals should therefore be reversed.

C. The “Discharge” Definition Further Clarifies

that Ditches are not “Navigable Waters.”

The “discharge” definition drives home the point that

Congress did not intend for ditches and other “point

source[s]” to be “navigable water[s].” The Act provides:

“(D}ischarge of a pollutant” ... means ... any addition of

any pollutant fo navigable waters from any point source

....” 33 U.S.C. § 1362(12) (emphasis added). Under a plain

reading of the statute, “point sources” are not themselves

statutory “navigable waters,” but are features that convey

pollutants and add them to “navigable waters.”

Congress intended to control pollutant discharges

through point source permit programs. CWA Section 402,

the National Pollutant Discharge Elimination System

(“NPDES”), requires point source operators to obtain

permits for the addition of pollutants into navigable waters.

33 U.S.C. § 1342. See Nat'l Wildlife Fed'n v. Consumers

Power Co., 862 F.2d 580, 582 (6" Cir. 1988) (“The NPDES

permit program was designed to control ‘point sources’ of

pollution”). Under Section 402, EPA regulates pollutants

that exit point sources, not pollutants entering them. See S.

Fil. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541

U.S. 95, 105 (2004) (explaining that point sources require

permits when they convey pollutants to ».ovigable waters).

Similarly, Section 404 requires point source operators to

obtain a Corps permit for discharges of a specific type of

pollutant, namely, dredged or fill material. 33 U.S.C. §

1344. In short, operators must obtain Section 402 or 404

permits when pollutants leave ditches (or other point

sources) and enter “navigable waters.”

While amicus maintains that this case should be decided

under Chevron Step 1 (supra at 6), the Corps’s

interpretation flips the CWA’s regulatory scheme on its

head and is unreasonable as well, also failing Chevron Step

2. “Discharge” is not the addition of pollutants from one

“navigable water” into another “navigable water.” See

Miccosukee, 541 U.S. at 104-05 (“discharge” requires

addition of pollutants from one “meaningfully distinct”

waterbody to another, through a point source). If the

Corps’s interpretation is upheld, such a reading would

require a federal permit for the Mississippi River where it

discharges into the Gulf of Mexico. Moreover, the Corps’s

current litigation argument is contrary to consistent

regulatory statements it has made down the years that

upland drainage ditches are not CWA “navigable waters.””

“An agency interpretation of a relevant provision which

conflicts with [its] earlier interpretation is ‘entitled to

considerably less deference’ than a consistently held agency

view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30

(1987) (citations omitted). Deference is not due, as here, to

agency “litigating positions that are wholly unsupported by

regulations, rulings or administrative practice.” Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988).

D. Like Ditches, Municipal Storm Sewer Systems

are “Point Sources” and not “Navigable Waters.”

Another type of point source is a municipal separate

storm sewer system, or “MS4.” This is pertinent to

Carabell, because the Sutherland-Oemig Drain (supra at 3)

is part of Macomb County's MS4. Under CWA Section

402 and Michigan Act 451 (Mich. Comp. Laws § 324.101

(1994)), the County maintains an NPDES permit for its

MS4, which expressly includes the Sutherland-Oemig

Drain. (App. 1b, 6b.) By virtue of its inclusion in the

? See 40 Fed. Reg. 31,320, 31,321 (July 25, 1975) (“{d]rainage

ditches have been excluded” from CWA jurisdiction); 48 Fed.

Reg. 21,466, 21,474 (May 12, 1983) (“waters of the United

States do not include the following man-made waters: (1) Non-

navigable drainage and irrigation ditches excavated on dry

land”); S51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986) (“We

generally do not consider [drainage and irngation ditches

excavated on dry land] to be waters of the United States.”); 67

Fed. Reg. 2020, 2087 (Jan. 15, 2002) (nationwide permit for

reshaping drainage ditches in jurisdictional wetlands “does not

apply to reshaping drainage ditches constructed in uplands since

these areas are generally not waters of the United States”).

9

Macomb County MS4, dirt and other pollutants conveyed

through the Sutherland-Oemig Drain into navigable waters

have been authorized under Section 402 of the Act. (App.

3b.) (It is unclear whether any of the ditches in Rapanos

are part of an MS4.)

Congress amended the CWA in 1987 and added Section

402(p) which, among other things, required EPA to develop

regulations for an MS4 permit program regarding

stormwater discharges.’ By putting the MS4 program in

Section 402, Congress expressed its intent that MS4s are

“point sources.” EPA thereby defined “MS4” to track the

Act’s “point source” definition. Compare 33 U.S.C. §

1362(14) (supra at 4), with 40 C.F.R. § 122.26(b)(8).*

Courts also recognize that storm sewers are point sources

subject to NPDES permitting requirements. Natural Res.

Def. Council, Inc. v. Costle, 568 F.2d 1369, 1379 (D.C.

Cir.1977) |

Permits for discharges from MS4s “shall require

controls to reduce the discharge of pollutants to the

maximum extent practicable, including management

* See 33 U.S.C. §§ 1342(p)(3)(B), (4). The history of the MS4

permit program, and its phased approach for regulation of

municipalities based on their population size, is traced in Envil.

Def. Ctr., Inc. v. U.S. Envtl. Prot. Agency, 344 F.3d 832, 841-42

(9" Cir. 2003).

* EPA defines MS4 as “a conveyance or system of conveyances

(including roads with drainage systems, municipal streets, catch

basins, curbs, gutters, ditches, man-made channels or storm

drains)” owned and operated by a State or municipality and

“[d]esigned or used for collecting or conveying storm water ....”

40 C.F.R. § 122.26(b\(8) (emphasis supplied).

10

practices, control techniques and systems, design, and

engineering methods.” 33 U.S.C. § 1342(p)(3)(B)(iii).°

Modern MS4s are waste treatment systems be ause they

reduce pollutants by treating stormwater with such features

as settling structures to collect sediment, and racks to

capture trash. Ben Urbonas, et al., Stormwater, Best

Management Practices and Detention for Water Quality,

Drainage, and CSO Management 42, 416-433 (1993),

Design and Construction of Urban Stormwater

Management Systems 454, 489-511 (Am. Soc’y of Civil

Eng’rs 1992). Indeed, EPA identifies stormwater as a

“waste.”° The key point is this: EPA expressly excludes

“waste treatment systems” from the definition of “waters of

the United States,” see 40 C.F.R. § 122.2, and a recent

memo from EPA’s General Counsel and Assistant

Administrator for Water confirms that “waste treatment

systems” like MS4s are “by definition” not CWA

“navigable waters.” (App. 3c, at n. 18.)’ When a third

party discharges into an MS4, which itself discharges

directly into a “navigable water,” EPA “always addressed

such discharges as ‘discharges through [MS4s] as opposed

* “Best management practices” include “treatment

requirements.” 40 C.F.R. § 122.26(d)iv)(D).

® 40 C.F.R. § 122.26(b)(8)(i) (MS4 is a conveyance system

owned and operated by a municipality with junsdiction over the

_ “disposal of sewage, industrial wastes, storm water, or other

wastes”) (emphasis supplied).

’ Memorandum from Ann R. Klee, General Counsel, and

Benjamin H. Grumbles, Assistant Administrator for Water,

Environmental Protection Agency, to Regional Administrators,

Regarding Agency Interpretation on Applicability of Section 402

of the Clean Water Act to Water Transfers, at 18, n. 18 (Aug. 5,

2005) (excerpts at App. C).

11

to ‘discharges to waters of the United States ....°” 55 Fed.

Reg. 47,990, 47, 997 (Nov. 16, 1990) (emphasis supplied).

“[A] statute is to be considered in all its parts when

construing any one of them.” Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 36 (1998). See also

Comm 'r of Internal Revenue v. Engle, 464 U.S. 206, 217

(1984) (court should “find that interpretation which can

most fairly be said to be imbedded in the statute [and is] ...

most harmonious with its scheme and with the general

purposes that Congress manifested”). Section 402(p)’s

structure and EPA’s regulations make clear that MS4s are

“point sources,” not “navigable waters.” As such, the Court

of Appeals should be reversed for ruling in Carabe// that

the Sutherland-Oemig Drain is a “navigable water,”

because that ditch is part of the Macomb County MS4.

E. Classifying Ditches and MS4s as “Navigable

Waters” Yields Unreasonable Results.

If the Corps’s interpretation holds, all of the CWA’s

requirements and programs for “navigable waters” would

be triggered for ditches and MS4s. But “statutes should be

interpreted to avoid ... unreasonable results whenever

possible.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71

(1982). For example, Section 303 requires States to adopt

and submit to EPA water quality standards (“WQSs”), 33

U.S.C. § 1313, which “consist of a designated use or uses

for the waters of the United States ...... 40 CFR. §

131.3¢i).* There are an estimated 3.9 million miles of roads

* An example of a designated use: “All the Great Lakes, and

their connecting waters ... are designated for ... coldwater

fisheries.” Mich. Admin. Code R. 323.1100(5) (1999).

12

in the Nation,’ and regulations require that federally funded

primary roads must be “designed ... and maintained to have

adequate drainage, cross drains, and ditch relief drains.” 30

C.F.R. § 816.151(d). If all of these roadside ditches are

“navigable water,” then the Act would require States to

establish WQSs for all of them. Congress could not have

intended such an absurd result. Similarly, if MS4s are

“navigable waters,” then Section 303 requires States to

develop WQSs and “designated uses” for the water in

municipal sewer systems. The main purpose of an MS4 is

to transport stormwater away from upland areas. However,

using a “navigable water” in such a manner would plainly

violate EPA’s regulation that “in no case shall a State adopt

waste transport ... as a designated use for any water of the

United States.” 40 C.F.R. § 131.10(a).

In conclusion, the Corps’s interpretation that drainage

ditches and parts of an MS4 are “navigable waters” should

not receive deference because it (1) contradicts the CWA’s

plain language, and (2) is unreasonable in any event. The

Court of Appeals should be reversed because it erroneously

held that “point sources” at the Rapanos and Carabell sites

are CWA “navigable waters.”

Il. WETLANDS ADJACENT TO FEATURES THAT

ARE NOT “OPEN WATERS” ARE NOT WITHIN

CWA JURISDICTION AS A MATTER OF LAW.

Corps regulations provide that wetlands “adjacent” to

certain listed waters (like “interstate waters” and

* U.S. Department of Transportation, Federal Highway

Administration, Highway Statistics 2001 § V, Roadway Extent,

Characteristics, and Performance Tbil. HM-10,_ at

<http://www.fhwa.dot.gov/ohin/hsOl/hm1lO.htm> (last visited

Nov. 10, 2005).

13

“tributaries”) are jurisdictional under the CWA. 33 C.F.R.

§ 328.3(a)(7). This Court has considered the (a)(7)

regulation in the past, ruling that wetlands which actually

abut “open waters” are jurisdictional. The Court of

Appeals should be reversed because it extended adjacency

jurisdiction to wetlands that are next to drainage ditches,

which are “point sources,” and are not “open waters.”

A. Riverside Bayview and SWANCC

This Court considered the adjacency regulation in

United States v. Riverside Bayview Homes, Inc., 474 U.S.

121 (1985). It allowed the CWA to cover non-navigable

wetlands that “actually abut[ted] on a navigable waterway,”

Black Creek. /d. at 135. The Court stated it was

expressing no opinion on the status of “wetlands that are

not adjacent to bodies of open water.” Id. at 131, n. 8

(emphasis supplied). Then in SWANCC, the Court stressed

that the Riverside Bayview wetlands “actually abutted on a

navigable waterway” (531 U.S. at 167), and ruled against

the Corps because “the text of the statute wili not allow”

coverage of ponds that “are not adjacent to open water.” /d.

at 168 (original emphasis). The dissent read the majority

opinion as “excising” from the CWA waters “that are not

contiguous or adjacent to navigable waters.” /d. at 190, n.

14 (Stevens, J., dissenting).

B. This Court Treats “Open Waters” as Navigable-

in-Fact Water.

Riverside Bayview and SWANCC used the term “open

water” and “navigable waterway” interchangeably. Indeed,

Black Creek is traditionally navigable-in-fact and has

14

supported heavy boat traffic." In this regard, these

opinions are part of the Court’s long tradition of using the

phrase “open water” as synonymous with navigable-in-fact.

water. For example, in Kotch v. Bd. of River Port Pilot

Comm'rs, 330 U.S. 552, 558 (1947), the Court explained

that pilots take ships from “open waters” to local waters. In

United States v. Oregon, 295 U.S. 1, 22 (1935), “open

water” described the area where boats could be used. The

Court has also analyzed whether the term “high seas” in a

criminal statute applied “to the open, uninclosed waters of

the Great Lakes, between which the Detroit River is a

connecting stream.” United States v. Rogers, 150 U.S. 249,

253 (1893). The Court observed, “the fact remains that

there are other seas than the ocean, whose open waters

constitute a free highway for navigation to the nations and

people residing on their borders ....” /d at 256. See also

The Nevada v. Quick, 106 U.S. 154, 158-59 (1883) (a -

steamship “may freely exercise its powerful propeller and

sport its leviathan proportions on the ocean or in deep and

open waters”). In short, the phrase “open water” abounds

in maritime and admiralty cases, and it has consistently

referred to navigable-in-fact water.

C. Likewise, Federal Agencies Understand “Open

Water” to Mean Navigable-In-Fact Water.

Numerous federal regulations use the phrase “open

water” similarly. For example, Federal Aviation

Administration regulations require minimum safe altitudes

for aircraft of 500 feet above the surface, “except over open

'© See The Macomb Daily, Boat Jam, (June 13, 2003), available

at http://204.176.34.196/macombdaily/article.asp?ID=8 560595

(reporting that several rivers including Black Creek experienced

boat jams in warm weather so that public ramps had to be

temporarily closed).

15

water or sparsely populated areas.” 14 C.F.R. § 91.119.

Similar restrictions apply for persons test flying aircraft

“except over open water.” 14 C.F.R. § 91.305. National

Oceanic and Atmospheric Administration regulations, in 15

C.F.R. Pt. 921, App. Il, define volcanic estuaries as “coastal

bodies of open water ....” At 40 C.F.R. § 125.83, EPA

defines a “{l]ake or reservoir [to] mean[ } any inland body

of open water with some minimum surface area free of

rooted vegetation ....”. The Department of Interior, in 43

C.F.R. Pt. 11, App. II, defines “landward open water” as “a

body of water that does not contain vegetation, (e.g.,

wetland, seagrass, or kelp).” And regulations of the

Department of Transportation state that facilities at which

flammable solids are loaded or unloaded “must be located

so that each vessel ... has an unrestricted passage to open

water.” 49 C.F.R. § 176.415(c)(4).

In opposing the petitions for writs of certiorari, the

Corps contended that the term “open water” is “a shorthand

for ‘rivers, streams, and other hydrographic features more

conventionally identifiable as ‘waters.’” Resp’t Cert. Br. in

Opp’n at 11, Carabell v. United States Army Corps of

Eng'rs, No. 04-1384 (U.S. 2005); Resp’t Cert. Br. in Opp’n

at 14, Rapanos v. United States, No. 04-1034 (U.S. 2005).

That position is emphatically belied by the overwhelming

judicial and regulatory precedent, spanning decades,

equating “open water” with navigable-in-fact water. No

one coming upon the MS4 or ditches at the Carabell or

Rapanos sites would think they had reached “open water.”

This Court’s decisions simply do not sweep into CWA

jurisdiction wetlands adjacent to ditches, drains, and MS4s.

Read in tandem, Riverside Bayview and SWANCC

provide legal guideposts at opposite ends of the CWA

jurisdictional spectrum. As a matter of law, the Corps (1)

16

has power over “open water” (i.e., navigable-in-fact) and

immediately abutting wetlands, but (2) lacks power over

waters that are isolated from navigable-in-fact waters. The

ditches at issue in these cases are not “open waters,” so the

wetlands next to them are not within Corps authority as a

matter of law, and the Sixth Circuit should be reversed.

iii. TO SATISFY THE “SIGNIFICANT NEXUS”

PRINCIPLE, THE GOVERNMENT SHOULD

PRODUCE PROOF OF DOWNSTREAM

EFFECT ON NAVIGABLE-IN-FACT WATERS.

In Part 1, amicus maintained that any non-navigable

feature which is itself a “point source,” such as a ditch or an

MS4, is not a CWA “navigable water.” In Part II, amicus

explained that the CWA does not, as a matter of Jaw, reach

wetlands adjacent to ditches, MS4s, and other features that

are not “open water.” We submit that the Court of Appeals

should be reversed on these points alone.

However, questions of CWA jurisdiction are by no

means limited to “point sources” or wetlands immediately

adjacent to “open water.” For example, whether the CWA

encompasses a non-navigable linear feature (like a remote

tributary, creek, or stream) is a lingering question. Part III

thus addresses the mode of analysis that should be

employed to determine whether CWA _ jurisdiction

encompasses non-navigable linear features in any given

case. As discussed below, SWANCC has provided the legal

standard to help answer this question: there must be a

“significant nexus” to navigable-in-fact waters. This Part

will flesh-out what that standard means, and what facts the

Corps must adduce to satisfy that standard when it brings

17

an enforcement action against property owners regarding

remote tributaries and the like.''

“Navigability ... is not susceptible of definition or

determination by a precise formula which fits every type of

stream or body of water under all circumstances and at all

times.” 78 Am. Jur. 2d Waters § 124 (May 2005). “[E]ach

determination as to navigability must stand on its own

facts.” United States v. Appalachian Power Co., 311 U.S.

377, 403 (1940) (quoting United States v. Utah, 283 U.S.

64, 87 (1931)). The same should hold true when

determining the scope of CWA “navigable waters.”

Whether a particular tributary has a “significant nexus” to

navigable-in-fact waters must be determined by considering

all surrounding circumstances. Indeed, evidence of

persistent, downstream effects on navigable-in-fact waters

should be crucial to any “significant nexus” inquiry.

A. Historical Context

In England, virtually all navigable waterways are

susceptible to the ebb and flow of the tide, so at common

law ““‘tidewater’ and ‘navigability’ were synonymous.”

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 478

(1988). Given the continental expanse of the United States,

a “different test” was needed on these shores because

“{s]ome of our rivers are as navigable for many hundreds of

miles above as they are below the limits of tide water ....”

The Daniel Ball, 77 U.S. 557, 563 (1870). Thus, the classic

test is that American waters are “navigable in law when

they are navigable in fact. And they are navigable in fact

'' The burden of proof is on the government when it asserts

navigability. See, e.g., Mundy v. United States, 22 C\.Ct. 33, 34

(1990); United States v. 531.10 Acres in Anderson County, S.C.,

243 F. Supp. 981, 986 (D.S.C. 1965).

when they are used, or susceptible of being used, in their

ordinary condition, as highways for commerce, over which

trade or travel are or may be conducted ....” /d. at 563.

As the Nation’s perge gas so burgeoned our need

for water. In the early century, federal agencies

(primarily the Corps and the Bureau of Reclamation in the

Interior Department) commenced massive public works

projects to harness rivers and streams for beneficial uses like

irrigation, power, and water supply. See generally Marc

Reisner, Cadillac Desert: The American West and its

Disappearing Water (rev. ed. 1993). The Daniel Ball test, as

it is limited to in-fact navigable waters, could not

accommodate the Nation’s unslakeable thirst. A more

flexible formulation—not so strictly bound to the control of

navigation—became necessary. Thus, in time, the Court

recognized that federal power needed to encompass non-

navigable waters that may be made navigable-in-fact with

“reasonable improvements.” Appalachian Power, 311 U.S.

at 407-09 (1940). See also Econ. Light & Power Co. v.

United States, 256 U.S. 113, 118 (1921) (non-navigable

points on Des Plaines River “above the head of steamboat

navigation” regarded as navigable-in-law).

Accordingly, what is “navigable” has changed over time,

and congressional power may fairly encompass non-

navigable features. But ihis is the crucial point: this Court

has endorsed federal authority over non-navigable features

only as needed to service the constitutional power to regulate

navigation, which derives from the commerce authority.

The plenary federal power over commerce must be

able to develop properly with the needs of that

commerce which is the reason for its existence. /t

cannot properly be said that the federal power over

19

navigation is enlarged by the improvements to the

waterways. It is merely that improvements make

applicable to certain waterways the existing power

over commerce.”

Appalachian Power, 311 U.S. at 409 (emphasis supplied).

The Court has thus upheld federal authority over non-

navigable features, but only as necessary to effectuate the

federal navigation power.

Indeed, federal authority over navigable-in-fact waters

is “plenary,” “as broad_as the needs of commerce,” and may

be wielded for purposes other than navigation (like

irrigation and hydropower). Appalachian Power, 311 U.S.

at 426. Federal authority over non-navigable features is not

nearly so broad, and has been sustained only upon findings

and evidence that activities conducted in or upon such

features will actually and demonstrably impact downstream

navigable-in-fact waters. For example, in United States v.

Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899),

Congress had the power to prevent a state’s appropriation

of water, “even at a place above the limits of navigability,”

where such an appropriation “diminish{es}] the volume of

waters [flowing into] a navigable stream, to such an extent

as to destroy its navigability.” Id. at 709 (emphasis

supplied). The Court examined international treaties,

“affidavits and other evidence” to determine that the state’s

uses would “substantially interefere[] with the navigable

capacity” of the Rio Grande and could be enjoined by

federal statute. /d. at 708-09.

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313

U.S. 508 (1941), is similar. The Court upheld

congressional authority to control water flows over non-

navigable stretches of the Mississippi River to prevent

20

flooding in the River’s navigable-in-fact segments. /d. at

516-24. Extensive documentation through a legislative and

engineering record allowed the Court to find that the

activities in the upstream, non-navigable portion of the

River had a “tangible” effect on the downstream, navigable

portion. /d. at 524.

Accordingly, the Court has long taken a measured,

cautious approach when determining the reach of federal

power over non-navigable features. While flexibility is

necessary as the needs for commerce evolve, traditional

notions of navigability must always set the bounds on

federal authority. The above cases are thus premised on

regulating activities in non-navigable features only where

they cause “substantial interference” with, and “tangible

impact” on, downstream navigable-in-fact waters.

B. “Significant Nexus”

The rulings in Riverside Bayview and SWANCC fit

comfortably within this historical context. In Riverside

Bayview, the Court upheld federal CWA jurisdiction over

non-navigable wetlands that “actually abut[ted] on a

navigable waterway,” Black Creek (474 U.S. at 135); the

wetlands and the Creek were “inseparably bound up” with

each other. /d. at 134. Given their physical inseparability,

any discharge of pollutants into the non-navigable wetlands

would have a direct impact on the immediately adjacent,

navigable-in-fact Creek. SWANCC stressed that the

Riverside Bayview holding “was based in large measure on

Congress’ unequivocal acquiescence to, and approval of,

the Corps’ regulations interpreting the CWA to cover

wetlands adjacent to navigable waters.” SWANCC, 531

U.S. at 167. Accordingly, finding no_ inseparable

relationship between non-navigable ponds isolated from

21

navigable-in-fact waters, the Corps’s claim of jurisdiction

over the isolated ponds “exceed[ed] the authority ... under

Section 404(a) of the CWA.” /d. at 174.

In reinforcing the need for an “inseparable” relationship

between non-navigable features and navigable waters, the

SWANCC Court stated: “It was the significant nexus

between the wetlands and ‘navigable waters’ that informed

our reading of the CWA in Riverside Bayview Homes.”

531 U.S. at 167 (emphasis supplied). The “significant

nexus” standard artfully captures the need to both maintain

and keep flexible the traditional notions of navigability. To

achieve the vital goal of cleaning-up our Nation’s waters,

Congress afforded “limited import” to the term “navigable”

as used in the CWA, so as “to regulate at least some waters

that would not be deemed ‘navigable’ under the classical

understanding of that term.” Riverside Bayview, 474 U.S.

at 133. Meanwhile, that “classical understanding” provides

the very constitutional basis for congressional action:

The term “navigable” has at least the import of

showing us what Congress had in mind as its

authority for enacting the CWA: its traditional

jurisdiction over waters that were or had been

navigable in fact, or which could reasonably be so

made.

SWANCC, 531 U.S. at 172 (citing Appalachian Power, 311

U.S. at 407-08). “Significant nexus” grounds the Act’s

scope to navigable-in-fact waters, while affording “limited

import” to traditional jurisdiction by allowing federal

authority to sometimes reach non-navigable features.

22

C. Hydrologic Connection Alone does not Satisfy

the “Significant Nexus” Standard.

The cases at bench upset this careful balance. The

Court of Appeals, by endorsing the Corps’s hydrologic

connection theory of jurisdiction, tipped all of the weight

toward the “limited import” side at the expense of the

“traditional jurisdiction” side. Carabell found CWA

jurisdiction over wetlands adjacent to “a nonnavigable ditch

abutting their property, a ditch that flows one way or

another into other tributaries of navigable waters ....” 391

F.3d at 710 (emphasis supplied). In Rapanos, the Court of

Appeals deemed “adjacent waters” (not simply wetlands)

jurisdictional by concluding that a “significant nexus ... can

be satisfied by the presence of a hydrological connection.”

376 F.3d at 639. See also United States v. Rapanos, 339

F.3d 447 (6” Cir. 2003), cert. denied, 541 U.S. 972 (2004)

(criminal phase; “ample nexus” is sufficient). Both cases

rely heavily on the Fourth Circuit’s decision in United

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

541 U.S. 972 (2004), which endorsed CWA jurisdiction

where there is simply “a nexus” to navigable-in-fact waters,

and construed SWANCC as “suggesting that covered

nonnavigable waters are those with ‘some connection’ to

navigable ones.” /d. at 709 (emphasis supplied). Deaton is

universally cited for the proposition that “jurisdiction

extends over any branch of a tributary system that

eventually flows into a navigable body of water.” /d. at 711

(emphasis supplied).

The purposeful choice of words selected by these

Courts of Appeals disserves this Court’s “significant

nexus” requirement. Riverside Bayview and SWANCC

never “suggested” that federal CWA authority depended on

an “eventual flow” of water “one way or another,” or that

23

“a” nexus or “some” connection is all that is needed to

trigger the Corps’s power. Rather, this Court announced

that the standard is a “significant nexus.”

Amicus respectfully urges the Court to reject the

hydrologic connection theory as a stand-in or substitute for

“significant nexus,” because the Corps’s approach supports

CWA jurisdiction—as a matter of law—based on nothing

more than the presence of a route along which water

molecules may possibly migrate. For example, Carabell

upheld a grant of summary judgment in the Corps’s favor

(391 F.3d at 707), based on a record that simply traced a

course between wetlands next to “an unnamed ditch,”

which connected to a drain, then to a creek, and eventually

to the Great Lakes. /d. at 708. Rapanos upheld a criminal

conviction solely based on testimony of a state official who

“followed the flow of water” and discerned “a surface

connection between the Salzburg site and the Saginaw

Bay.” Rapanos, 376 F.3d at 642. Likewise, Deaton

granted motions for summary judgment, and to reconsider

CWA jurisdiction, in favor of the Corps. Deaton, 332 F.3d

at 703. The Fourth Circuit found CWA jurisdiction merely

due to a “winding thirty-two mile path” between a roadside

ditch and the Chesapeake Bay (id. at 702), through which

drops of water “eventually flow” (id. at 711) and “ha[ve]

the potential” to carry pollutants downstream. /d. at 707.

The most extreme example of the hydrologic connection

theory that amicus has located is United States v. Buday,

138 F. Supp. 2d 1282 (D. Mont. 2001). It stretched the

CWA to reach a non-navigable creek, solely due to a 190-

mile linear connection to the closest navigable-in-fact

water. /d. at 1283.

The federal government has won these cases by playing

a game of six degrees of separation (one way or another).

24

To justify CWA jurisdiction, the Corps deems unnecessary

facts like the amount, direction, duration, and frequency of

water flow. But such facts regarding the extent of

hydrologic exchange (not simply distance) between non-

navigable and navigable resources should be critical to the

“significant nexus” calculus. Put another way, a hydrologic

connection is a prerequisite to prove a nexus, but that alone

does not prove the nexus is significant.'?

D. Effect on Navigable-in-Fact Waters Must be

Imported into a “Significant Nexus” Analysis.

The hydrologic connection theory is a conspicuous

detour from the path charted by this Court, dating back to

The Daniel Ball and up through SWANCC, because it is not

moored to any showing that upstream activity in a non-

navigable area causes an actual, downstream impact on

navigable-in-fact water. The Fifth Circuit’s decision in

Rice v. Harken Exploration Co., 250 F.3d 264 (5" Cir.

2001), is instructive. The Rice court rejected claims of

CWA jurisdiction over intermittent streams, even though

some connection to navigable waters existed:

There is no detailed or comprehensive description

of any of these seasonal creeks available in the

record. There is also very little evidence of the

nature of Big Creek itself .... There is no detailed

information about how often the creek runs, about

how much water flows through it when it runs, or

about whether the creek ever flows directly (above

ground) into the Canadian River. Jn short, there is

'? The common meaning of “significant” is “[hJaving or likely to

have a major effect; important.” The American Heritage®

Dictionary of the English Language (4th ed. 2000).

25

—— \

nothing in the record that could convince a

reasonable trier of fact that either Big Creek or any

of the unnamed other intermittent creeks on the

ranch are sufficiently linked to an open body of

navigable water....

Id. at 270-71 (emphasis supplied).

A district court decision regarding the New Jersey

Meadowlands is also on point. In FD&P Enters., Inc. v.

U.S. Army Corps of Eng'rs, 239 F. Supp. 2d 509 (D.N.J.

2003), the court couched the question as “whether there is

a substantial nexus—beyond a mere hydrologic

connection—between the [property] and the navigable

waters of the Hackensack River.” /d. at 516-17. The

FD&P court decided it could not grant summary judgment

in favor of the Corps because, following SWANCC,

“*hydrological connection’ is ... [not] the relevant standard

....” Id. at 517. Summary judgment was also not granted

for the property owner, because “the evidence submitted

by the parties does not permit this court to conclude that no

genuine issue of material fact exists as to the effect of the

filling of the wetlands on the Hackensack River.” /d.

(emphasis supplied).

Thus, the government should not win a motion for

summary judgment (or some other dispositive motion on

the law), where material facts are disputed or lacking

regarding the impact on downstream navigable-in-fact

waters. Whether a non-navigable feature is subject to

CWA jurisdiction under the “significant nexus” standard

must be based on solid proof showing an on-going impact

or effect on downstream navigable waters. Considering

impact is fully consistent with seminal cases like

Appalachian Power and Rio Grande Dam, which have

26

allowed the extension of federal authority over non-

navigable features based on evidence of a persistent, —

deleterious downstream effect. See supra at 18-20.

E. Requiring Proof of Effect is Consonant with the

CWA’s Objective to Prevent Actual Discharges of

Pollutants.

Requiring the Corps to show downstream impact on

navigable-in-fact waters makes all the more sense in the

modern context, given the CWA’s overriding regulatory

objective to prohibit the unpermitted discharge of

pollutants. Supra at 2. The federal government has no

CWA authority to require a permit for activities that may

only result in a potential discharge of pollutants.

In the absence of an actual addition of any

pollutant to navigable waters from any point, there

is no point source discharge, no statutory violation,

... and no statutory obligation of point sources to

seek or obtain [a CWA] permit in the first instance.

Waterkeeper Alliance, Inc., v. U.S. Envtl. Prot. Agency,

399 F.3d 486, 505 (2d Cir. 2005) (emphasis supplied).

Enforcement actions brought by the Corps are typically

based on alleged discharges of common dirt—the pollutant

at issue—without a permit. Thus, at the very least, the

government should be required to produce evidence

showing that the upstream activities it seeks to regulate

cause dirt to migrate off-site and enter the hydrologic flow.

How can there be an actual discharge of sediment, if

sediment never leaves a construction site and is not

transported downstream? But there is no such evidentiary

showing in Carabell, Rapanos, or other hydrologic

27

connection cases, because they are not premised on an

actual discharge of pollutants, but rather on the assumption

that a pollutant “has the potential to move downstream and

degrade the quality of the navigable waters themselves.”

Deaton, 332 F.3d at 707 (emphasis supplied). In short, if

the Corps’s “hydrologic connection” theory is the

standard, all it needs to prove is that a ditch connects to a

creek, which connects to a stream, which connects to a

river, which is all part of a tributary system, that

contributes downstream flow.

Yet Congress did not prohibit the potential addition of

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

pollutants to “navigable water.” Polluting activities in non-

navigable features that result in an actual discharge must be

regulated. However, that outcome can be obtained without

deeming a common drainage ditch and every inch of its

downstream path a CWA “navigable water.”

To this end, several reported decisions, where there is

clear evidence of an actual discharge of pollutants,

needlessly go too far in alchemizing certain non-navigable

features into statutory “navigable waters.” In Headwaters,

Inc. v. Talent Irrigation Dist., 243 F.3d 526, 528 (9" Cir.

2001), toxic herbicides were discharged through irrigation

canals into Bear Creek, where “[o]ver 92,000 juvenile

steelhead were killed.” In light of that proof of

environmental harm from an actual discharge of pollutants

through point sources, it was entirely unnecessary for the

court to rule that the canals (that is, “point sources”) were

“tributaries” encompassed by the CWA. /d. at 533.

Likewise, in United States v. Eidson, 108 F.3d 1336, 1340,

1342 (11" Cir. 1997), the appellant was caught pumping a

“sludge substance” from a truck, through a hose, which

flowed into a storm sewer. (The truck, the hose, and the

28

sewer system were all point sources.) The flow then left

the sewer and entered a tidal drainage canal that directly

emptied into Tampa Bay. /d. at 1342-43. Under those facts,

it was not necessary for the court to declare the sewer

system a CWA jurisdictional “tributary of Tampa Bay” to

affirm the criminal convictions. /d.

These cases warrant comparison to Jn re Needham, 354

F.3d 340 (5 Cir. 2003), where federal regulatory

jurisdiction was upheld based on the parties’ factual

stipulation that “residue from the spill was found 10-12

miles from the oil well, i.e., in Bayou Folse,” an undisputed

traditionally navigable water. /d. at 346. In affirming

federal regulatory authority, the Fifth Circuit nonetheless

declared the hydrologic connection theoy as

“unsustainable under SWANCC,” and refused to extend

federal power “over puddles, sewers, roadside ditches, and

the like.” /d. at 345. Needham perfectly shows that a

polluting activity can be regulated under the CWA without

federalizing the place—as long as there is an actual,

discernible discharge of pollutants through a point source

and into downstream, navigable-in-fact waters.

F. The “Significant Nexus” Standard is Analogous

to a Proximate Cause Requirement.

Whether a non-navigable feature has a “significant

nexus” to a navigable water is another “difficult question[]}

of proximity and degree” for this Court. Babbitt v. Sweet

Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687,

708 (1995). Federal environmental regulations are

commonly premised on a_ threshold showing of

“significant” effects. In Sweet Home, for example, the

Court upheld a U.S. Fish and Wildlife Service regulation

under the Endangered Species Act, which defined “harm”

29

to species as including “significant habitat modification.”

50 C.F.R. § 17.3. The majority observed that “every term

in the regulation’s definition of ‘harm’ is subservient to the

phrase ‘an act which actually kills or injures wildlife.” /d.

at 700 (emphasis supplied). Justice O’Connor’s

concurrence upheld the regulation because it “is limited to

significant habitat modification that causes actual, as

opposed to hypothetical or speculative, death or injury to

identifiable protected animals.” /d. at 708-09. She further

aoted that the activity in question must be the proximate

and foreseeable cause of the species’ actual injury. /d. at

709. Proximate cause “is about the legal significance of

causation, rather than the existence of causation.” Dan B.

Dobbs, The Law of Torts § 167, 409 (2000) (original

emphasis). “These questions must be addressed in the

usual course ... through case-by-case resolution and

adjudication ..."" Sweet Home, 515 U.S. at 713.

Similarly, the National Environmental Policy Act

(NEPA) requires the preparation of an environmental

impact statement for major federal actions “significantly

affecting” the quality of the human environment. 42 U.S.C.

§ 4332(2)(C). Regulations state that “‘[s]ignificantly’ as

used in NEPA requires consideration of both context and

intensity,” with “intensity” bearing on “the severity of the

impact” and including evaluation of “[t]he degree to which

the proposed action affects public health or safety.” 40

C.F.R. § 1508.27(b). Thus, “NEPA requires ‘a reasonably

close causal relationship’ between the environmental effect

and the alleged cause[,]” an approach analogous “to the

‘familiar doctrine of proximate cause from tort law.’”

Dep't of Transp. v. Public Citizen, 541 U.S. 752, 767

(2004) (citing Metro. Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766, 774 (1983)).

30

Perhaps SWANCC’s “significant nexus” standard is best

designed to ensure that upstream activity in a non-navigable

feature proximately causes concrete, actual harm to

navigable-in-fact waters further downstream. See Rice, 250

F.3d at 272 (requiring a “close, direct, and proximate link

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

identifiable oil contamination”). The “hydrologic

connection” theory, however, with its premise on potential

impacts and eventual flows, is nothing more than a variant

of “but for” causation. Such a loose causal relationship

should not be the standard by which the federal government

can assert its awesome regulatory power under the CWA.

The Corps should be required to prove more than a “but

for” connection when it brings CWA enforcement actions

against private land owners.

CONCLUSION

The judgments of the Court of Appeals should be

reversed.

DATED: December 2, 2005

Respectfully submitted,

Duane J. Desiderio

(Counsel of Record)

Thomas J. Ward

Felicia K. Watson

THE NATIONAL ASSOCIATION

OF HOME BUILDERS

Attorneys for Amicus Curiae

TABLE OF APPENDICES*

A. List of Cases in Which NAHB has Appeared as an

Amicus Curiae Before This Court.....................0..00+. la

B. Excerpts from National Pollutant Discharge

Elimination System (NPDES) Permit, Issued by

State of Michigan Department of Environmental

Quality, to Macomb County Public Works Office,

Regarding Macomb County MS4 (Dec. 17, 2003)... Ib

C. Excerpts from Memorandum from Ann R. Klee,

General Counsel, and Benjamin H. Grumbles,

Assistant Administrator for Water, U.S.

Environmental Protection Agency, to Regional

Administrators, Regarding Agency Interpretation

on Applicability of Section 402 of the Clean Water

Act to Water Transfers (Aug. 5, 2005) ..................... Ic

*Under Rule 32.3, Amicus will lodge complete copics

of the documents in Appendices B and C at the Court’s

request.

Cases in which the National Association of Home Builders

has appeared before the U.S. Supreme Court as an amicus

curiae:

Agins v. City of Tiburon, 447 U.S. 255 (1980); San Diego

Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981);

Williamson County Reg'l Planning Comm'n v. Hamilton

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

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

First English Evangelical Lutheran Church of Glendale v.

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

Coastal Comm'n, 483 U.S. 825 (1987); Yee v. City of

Escondido, 503 U.S. 519 (1992); Lucas v. S.C. Coastal

Council, 50S U.S. 1003 (1992); Dolan vy. City of Tigard,

512 U.S. 374 (1994); Babbitt v. Sweet Home Chapter of

Cmtys. for a Great Or., 515 U.S. 687 (1995); Suitum v.

Tahoe Reg’! Planning Agency, 520 U.S. 725 (1997); City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687 (1999); Solid Waste Agency of N. Cook County v. U.S.

Army Corps of Eng'rs, 531 U.S. 159 (2001); Palazzolo v.

Rhode Island, 533 U.S. 606 (2001); Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S.

302 (2002); Borden Ranch P’ship v. U.S. Army Corps of

Eng'rs, 537 U.S. 99 (2002); City of Cuyahoga Falls v.

Buckeye Cmty. Hope Found., 538 U.S. 188 (2003); S. Fla.

Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541

U.S. 95 (2004); San Remo Hotel, L.P. v. City & County of

San Francisco, 125 S. Ct. 2491 (2005); Lingle v. Chevron

U.S.A., Inc., 125 S. Ct. 2074 (2005); and Kelo v. City of

New London, 125 S. Ct. 2655 (2005).

lb

STATE OF MICHIGAN DES.

DEPARTMENT OF ENVIRONMENTAL QUALITY

JENNIFER M. GRANIIOLM LANG STEVEN E. CHESTER

GOVERNOR DIRECTOR

December 17, 2003

Ms. Lynn Yustick

Macomb County Public Works Office

115 South Groesbeck Highway

Mount Clemens, Michigan 48043

Dear Ms. Yustick:

SUBJECT: National Pollutant Discharge Elimination

System (NPDES)

Certificate of Coverage No. MIG610052

Designated Name: Macomb Co MS4

Your certificate of coverage under NPDES General Permit

No. MIG619000 has been processed tn accordance with

appropriate State and Federal regulations.

Please carefully review the requirements contained in

Certificate of Coverage No. MIG610052, which is

enclosed, and General Permit No. MIG619000. If you do

not have a copy of the General Permit, one can be obtained

via the Internet at: (http://www.michigan.gov/deq - on the

left side of the screen click on Water, Surface Water, and

NPDES Permits; then click on "General NPDES Permits”

which is under the Permits banner), or you may cali the

following number to request a paper copy: (517) 373-8088.

These requirements are subject to the criminal and civil

enforcement provisions of both State and Federal law.

CONSTITUTION HALL 525 WEST ALLEGAN STREET P? O BOX 30273 LANSING. MICHIGAN 48909.7773

www muchigan gov © (517) 241-1300

2b

Permit compliance and violations are audited by the

Department of Environmental Quality (DEQ) and the

United States Environmental Protection Agency.

You must comply with the requirements and other

responsibilities in accordance with General Permit No.

MIGG619000 and Certificate of Coverage No. MIG610052.

A guidance document is enclosed to help you develop your

Public Participation Process, which shall be submitted by

the date specified in your certificate of coverage. Any

reports, notifications, or questions regarding the NPDES

program, the enclosed certificate of coverage, or the general

permit-should be directed to the DEQ office indicated on

your certificate of coverage.

Sincerely,

Chase Ha

Christe Alwin

Lakes Erie and Huron Permits

Unit

Surface Water Permits Section

Water Division

517-241-7414

CA/sea

Enclosures: Certificate of Coverage No. MIG610052

Public Participation Process Guidance Document

cc: Mr. Phil Argiroff, Southeast Michigan District Office, Water

Division, DEQ (with COC)

PCS Unit, Water Division (with COC)

File

CONSTITUTION HALL 525 WEST ALLEGAN STREET P.O BOX 30273 LANSING, MICHIGAN 489097773

www michigan gov - (517) 241-1300

3b

MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY

DEQ WATER DIVISION

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)

Authorized by Michigan Act 451, Public Acts of 1994, as amended, Part 31

CERTIFI F

Under General Permit No. MIG619000

MS4 Watershed General Permit

CERTIFICATE OF COVERAGE NO.: MIG610052

DESIGNATED NAME: Macomb Co MS4

PERMITTEE MAILING ADDRESS: Macomb County

115 South Groesbeck Highway Mount Clemens, Michigan

48043

This certificate of coverage authorizes Macomb County to

discharge storm water through a separate storm water

drainage system to waters of the state, including but not

limited to the Clinton River, Lake St. Clair, Stony Creek,

and the drains listed in Table I (attached). This

authorization also includes nested jurisdictions for which

the permittee has accepted responsibility. The applicable

watersheds for this certificate of coverage and general

permit are the Anchor Bay, Lake St. Clair Direct Drainage,

Paint/Stony Creek, Red Run, Clinton River East and North

Branch Clinton River.

The permittee shall submit an Illicit Discharge Elimination

Plan and Public Education Plan, or updates to existing plans

to comply with current permit requirements on or before

November |, 2004. The permittee shall begin

implementation of its Illicit Discharge Elimination Plan and

its Public Education Plan upon receiving approval from the

Department or beginning 90 days after submittal,

whichever comes first.

4b

The general permit allows the permittee to implement one

Storm Water Pollution Prevention Initiative for their

jurisdiction. After the permittee develops and submits a

Storm Water Pollution Prevention Initiative, all other

Initiative submissions shall be developed as revisions to the

existing Initiative. This Initiative shall be consistent with all

of the permittee’s authorizations as described below.

x**e*

For the Lake St. Clair Direct Drainage watershed, the

permittee, in conjunction with other permittees in the

watershed, shall submit a joint Public Participation Process

(Part I.B.1. of the permit) by May 1, 2004 and a joint

Watershed Management Plan (Part 1.B.1. of the permit) by

November | , 2006. Based on development of the additional

watershed plan, the permittee shall submit a revised Storm

Water Pollution Prevention Initiative (or written

determination not to revise the Initiative) (Part 1.B.2.b. of

the permit) by May 1, 2007. The permittee shall also submit

a joint revised Watershed Management Plan (or written

determination not to revise the Plan) (Part I1.B.1. of the

permit) by November 1, 2008 and any additional revisions

to the Storm Water Pollution Prevention Initiative (or

written determination not to revise the Initiative) (Part

1.B.2.b. of the permit) by May 1, 2009.

eee

The permittee shall submit an annual progress report by

November Ist of each year beginning on or before

November |, 2004.

References in the general permit to the Department shall be

defined as the Southeast Michigan District Supervisor of

5b

the Water Division. The Southeast Michigan District Office

is located at 38980 Seven Mile Road, Livonia, Michigan

48152-1006, telephone: 734-953-8905, fax: 734-953-1467.

x*keerk

This certificate of coverage is based on a complete

application received oy the Department of Environmental

Quality on May 29, 2003. The permittee is subject to all

conditions specified in General Permit No. MIG619000

issued December 5, 2092, expiring April |, 2008. This

certificate of coverage may be modified, terminated,

reissued, or revoked as allowed for in General Permit No.

MIG619000. On the effective date of this certificate of

coverage, this certificate of coverage shall supersede

Certificate of Coverage No. MIG610052, issued August 6,

2001, which is hereby revoked on the effective date of this

certificate of coverage.

This certificate of coverage takes effect on the date of

pone 3 pe

December 16, 2003 Bryce Feighner, Chief

Date Issued Lakes Erie and Huron Permits

Unit

Surface Water Permits Section

EQP 4677 (9/03) Water Division

6b

Table 1. List of Drains under the jurisdiction of the MCPWO

"16 and One-Half Mile Drain’

"17 Mile Road Drain & Branches’

*18 Mile Drain’

*Ahrens Drain’

"Alexander Relief Drain and Branches’

*Alwardt Drain’

*Andersen Drain’

"Anderson East Branch Drain’

*Apel Drain’

"Armada and Ray Drain’

"Arndt Drain’

*Asbery Park Drain’

*Savan Drain’

*Savan Extension Drain’

*Schiebel Drain’

*Schocke Retention’

*Sutherland-Oemig Drain’

"Yates Branch Drain’

"Yates Drain’

*Zander Drain’

Ic

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

: Washington, D.C. 20460 AUG - 5 2005

SUBJECT: Agency Interpretation on Applicability of

Section 402 of the Clean Water Act to Water

Transfers

FROM: AnnR. Klee

General Counsel

Benjamin H. Grumbles

Assistant Administrator for Water

TO: Regional Administrators

This Agency interpretation addresses the question of

whether the National Pollutant Discharge Elimination

System (NPDES) permitting program under Section 402 of

the Clean Water Act (CWA) is applicable to water control

facilities that merely convey or connect navigable waters.

For purposes of this Agency interpretation, the term "water

transfer" refers to any activity that conveys or connects

navigable waters (as that term is defined in the CWA)

without subjecting the water to intervening industrial,

municipal, or commercial use. This interpretation focuses

exclusively on water transfers and is not relevant to whether

any other activity is subject to the CWA permitting

requirement. |

] Section VI, below, discusses activities that are beyond

the scope of, and not affected by, this Agency interpretation.

Ll Overview

The question of whether or not an NPDES permit is

required for water transfers has arisen because activities

that result in the movement of navigable waters, such as

trans-basin transfers of water to serve municipal,

agricultural, and commercial needs, can also serve to move

pollutants from one waterbody (donor water) to another

(receiving water). The Supreme Court recently addressed

this issue in South Fla. Water Mgmt. Dist., v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004), leaving the matter

unresolved.’

2 In this case, the Supreme Court vacated a decision by the

11" Circuit, which had held that a Clean Water Act permit was

required for transferring water from one navigable water into

another, a Water Conservation Area in the Florida Everglades.

The Court remanded the case for further fact-finding as to

whether the two waters in question were "meaningfully distinct.”

If they were not, no permit would be required. The Court

declined to address legal arguments made by the parties because

the arguments had not been raised in the lower court

proceedings. The Court noted that EPA had not spoken to these

legal issues in an administrative document. 541 U.S. at 107.

***

3c

tae

VL Scope of this Agency Interpretation

This Agency interpretation addresses only water

transfers - that is, activities that convey or connect

navigable waters without subjecting the water to intervening

industrial, municipal or commercial use.'* It does not

address any other activities, or any jurisdictional terms

under the statute other than "addition."'”

For example, this interpretation does not affect

EPA's longstanding position that, if water is withdrawn

from navigable waters for an intervening industrial,

municipal or commercial use, the reintroduction of the intake

water and associated pollutants is an “addition” subject to

NPDES permitting requirements. EPA has long imposed

NPDES requirements on entities that withdraw process

water or cooling water and then return some or all of the

water through a point source. See, e.g., 40 C.F.R. § 122.2

(definition of process wastewater); 40 C.F.R. §§ 125.80-

125.89 (regulation of cooling towers); 40 C.F.R. §

122.45(g) (regulations governing intake pollutants for

technology-based permitting); 40 C.F.R. Part 132,

18 We emphasize, for purposes of clarity, that a water

transfer occurs between two “waters of the United States.”

Accordingly, the movement of water through a dam is not a

water transfer because the dam merely conveys water from one

location to another within the same waterbody (although the

movement of water through a dam also does not require an

NPDES permit because no “addition” has occurred). Moreover, a

discharge from a waste treatment system, for example, which by

definition is not a water of the United States, to a water of the

United States, would not constitute a water transfer (and would

requie an NPDES permit). See 40 C.F.R. § 122.2.

19 Thus, this interpretation does not address the meaning of

the terms, “point source,” “pollutant” or "navigable waters.”

4c

Appendix F, Procedure 5-D (containing regulations

governing water quality-based permitting for intake

pollutants in the Great Lakes). Conversely, waters that are

diverted and used for irrigation and then reintroduced to the

navigable waters are exempt from permitting requirements

under the exemption for return flows from irrigated

agriculture from the definition of "point source” in section

502(14) and this Agency interpretation does not affect that

exemption.

VIL Conclusion

For the reasons explained above, based on the CWA

as a whole, the Agency concludes that Congress intended to

leave the oversight of water transfers to authorities other

than the NPDES program. While resort to a case-specific

evaluation of waters is not necessary or appropriate in light

of Congressional intent, if such an evaluation were

determined to be needed, a permit would not be required for

waters that are not "meaningfully distinct" and that term

should be construed in light of the water quality goals of the

statute and Congressional intent to rely on non-NPDES

authorities for overseeing water management activities.

Finally, the Agency intends to initiate a rulemaking process

to address water transfers.