Amicus Curiae Brief — Rapanos v. United States

No. 04-1384

Ios a aD

In The

Supreme Court of the United States

JUNE CARABELL, ET AL.

Petitioner,

v

UNITED STATES ARMY CORPS OF ENGINEERS,

Respondent.

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals For The Sixth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF THE PETITIONER

Duane J. Desiderio

(Counsel of Record)

Thomas J. Ward

Felicia K. Watson

National Association of

Home Builders

1201 15" Street, N.W.

Washington, D.C. 20005

(202) 866-8200

TABLE OF CONTENTS

Page

SN NII III is snicrirssnnentenntneinmnmeiatinsemiitinmnents l

LF ____— EL E E EI 2

SU vicsicehcitnepinlidleinsctaninsiaeamienianiieniiianeedininnidiansiiineninmieaion 4

This Court Should Resolve the Circuit Split on the

Scope of CWA Jurisdiction Over Non-navigable

UTIEIIITS cniestshesinenitetipahsnesscuimediaeeiseuhbenidisiaiienniasiniabenienibindinnnegdin 4

A. As the Sixth Circuit Previously Recognized,

Determining the “Precise Boundary” of Areas

Covered by the Clean Water Act Remains

III ‘easesstatincsluhiasiinettesiiiisiiiicdnnaninsinsnviaieiiiiaisnintieiits 5

B. Sixth Circuit: “Mere Proximity” to Non-

Navigable Ditches That May be Connected to

PE III conisintcencnnpecniemsecnneptenvnineseniniennins 6

C. Fourth and Sixth Circuits: “Hydrological

Connection” to Navigable Waters. . ................ inl

D. Fifth Circuit: “Actually Navigable Waters” and

Waters “Truly” Adjacent to Them. ..................... 10

E. Second Circuit: “Actual Discharge” of Pollutants

ED DHT siccncancsnesepscntenscnsicrccsssosesecssese 12

. The Confusion Created by the Regulatory Agencies

in the Field Should Compel This Court’s

IIIT cetsoaininssennnstedestiaditiiaideiteiiapinhineumeneseniens 15

A. Congress Has Recognized the Agencies’

Haphazard Implementation of “Navigable

Waters” Jurisdiction. ..........ccccsccscrsscssssccseveeqeoes 15

B. The General Accounting Office Has Reported on

Rampant Regulatory Inconsistencies. ................ 18

C. Whether Federal Regulators Assert CWA

Jurisdiction Now Depends on the Geographic

Jurisdiction of the Various Courts of Appeal, Not

on a Consistent Regulatory Program. ................. 19

eI occcecesssscsscereennnnmnneennee 20

CASES Page(s)

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

CC Ee 14

Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704 (6"

Cir. 2004), petition for cert. filed, USLW. |

(U.S. April 11, 1005) (No. 04-1384) oo... cccccccceeeeeeeees 5

Carabell v. U.S. Army Corps of Eng 'rs, 257 F. Supp. 2d

a 6, 8

Chevron, U.S.A. v. Natural Resources Defense Council,

a 19

FD&P Enterprises, Inc. v. U.S. Army Corps of Eng'rs,

239 F. Supp. 2d 509 (D. N.J. 2003) .0.......cccccccceeceeseeeeees 11

In re Needham, 354 F.3d 340

cc 10

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

TT 10, 11, 12

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

Corps of Engrs, 531 U.S. 159 (2001) ..............00000. passim

Treacy v. Newdunn Assocs., LLP, 334 F.3d 416 (4" Cir.

2003), cert. denied, 124 S. Ct. 1874 (2004)...........0.00000. 5

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

cert. denied, 124 S. Ct. 1874

Se 4, 8, 9, 10, 13, 14, 17, 19

iv

United States v. Rapanos, 339 F.3d 447 (6" Cir. 2003),

cert. denied, 124 S. Ct. 1875 (2004)............00000 5, 8,9, 10

United States v. Rapanos, 376 F.3d 629 (6 Cir. 2004),

petition for cert. filed, 73 U.S.L.W. 3466 (U.S. January

28, 2005) (No. 04-1034) ......c.eccsvcsssesssesssueenneenness 5, 8, 9, 10

United States v. Riverside Bayview Homes, Inc.,

a 5, 6, 7, 8, 10, 11

United States v. Rueth Dev. Co., 335 F.3d 598 (7" Cir.),

cert. denied, 540 U.S. 1050 (2003) ..........ccccccceeeeeseeeeeeeneees 5

Waterkeeper Alliance, Inc. v. U.S. Envtl. Protection

Agency, 399 F.3d 486 (2d Cir. 2005)........:scssesssvessenes 12, 13

STATUTES

ORE, 0 CU a vcectcenccnercenneeneniomennniiaiien 2

OR II i ciccseinictencieinicamninemnaicnat 12

33 U.S.C. § 1346 .cecvenennenenenentnnnnnnenenenenenenenti 12

SDR. 6 GON cecccticiieniieniitininimanade 2,12

REGULATIONS

Advanced Notice of Proposed Rulemaking on the Clean

Water Act Regulatory Definition of “Waters of the

United States,” 68 Fed. Reg. 1991

(Jamusary 15, 2003)............c.c.cecsecosserssessececsseensesseseesees 16, 18

OTHER

Agency Implementation of the SWANCC Decision:

Hearing Before the Subcomm. on Energy Policy,

Vv

Natural Resources & Regulatory Affairs of the Comm.

on Gov’ Reform, No. 107-230, 107" Cong. 2d Sess.

EIU IED entnsieitichvasinieeeennieecntinnsicaenoninsanininiaiiisdnitentiaaaiaaasianies 15, 16

Brief of Amici Curiae of the Building Industry Legal

Defense Foundation, et al. in Support of Petitioners, United

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

cert. filed, 92 U.S.L.W. 3356 (U.S. Nov. 13, 2003)

ee nT SO EE 16

Petition for Writ of Certiorari, United States v. Deaton, 332

F.3d 698 (4" Cir. 2003), petition for cert. filed, 92

U.S.L.W. 3356 (U.S. Nov. 13, 2003) (No. 03-701)... 13, 14

Press Release, Environmental Protection Agency & U.S.

Army Corps of Engineers, EPA and Army Corps Issue

Wetlands Decision (December 16, 2003) ............00ccc00000. 17

U.S. General Accounting Office, Report to the Chairman,

Subcomm. on Energy Policy, Natural Resources &

Regulatory Affairs, Comm. on Gov’t Reform, House of

Representatives, Waters and Wetlands: Corps of Engineers

Needs to Evaluate Its District Office Practices in

Determining Jurisdiction, GAO-04-297

a 4, 18, 19

W. Page Keeton et al., Prosser and Keeton on Torts

' , | == Se 14

INTEREST OF THE AMICUS CURIAE

The National Association of Home _ Builders

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

this brief as amicus curiae in support of Petitioner. Letters

of consent have been filed with the Clerk of the Court.'

NAHB represents over 220,000 builder and associate

members throughout the United States. Its members

include not only individuals and firms that construct and

supply single-family homes, but also apartment,

condominium, multi-family, commercial and industrial

builders, land developers and remodelers. NAHB is the

voice of the American shelter industry. Through the

regular course of operating their businesses, NAHB’s

members are frequently subject to regulations under the

Clean Water Act (“CWA”). In that regard, NAHB has

developed comprehensive familiarity with the CWA’s

permitting requirements, advises its members on

compliance issues, and, unfortunately, has been witness to

numerous situations where federal regulators have

attempted to expand the scope of their authority beyond

congressionally authorized parameters. NAHB has thus

been before the Court as amicus curiae or “of counsel” in a

number of cases involving landowners who have been

aggrieved by government over-regulation under the CWA

and other statutes and programs.”

' Pursuant to Rule 37.6 of this Court, NAHB states that its counsel

authored this brief. The brief was not written in whole or part by

counsel for a party, and no one other than amicus made a monetary

contribution to its preparation.

2 These include: Agins v. City of Tiburon, 447 U.S. 255 (1980); San

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

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

Johnson City, 473 U.S. 172 (1985); MacDonald, Sommer & Frates v.

2

SUMMARY OF THE ARGUMENT

1. Circuit Conflict: There is a conflict between the

courts of appeal on the proper test for determining when a

non-navigable feature is a “navigable water” under the

Clean Water Act (“CWA” or the “Act”).

e The Sixth Circuit, in its decision below, has upheld the

authority of the U.S. Army Corps of Engineers (“Corps”)

over a non-navigable wetland simply because it was near

non-navigable ditches that may be connected to navigable

waters. Under this “mere proximity” approach — which

Yolo County, 477 U.S. 340 (1986); First English Evangelical Lutheran

Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987);

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

Escondido, 503 U.S. 519 (1992); Lucas v. S.C. Coastal Council, 505

- U.S. 1003 (1992); Dolan v. City of Tigard, 512 U.S. 374 (1994);

Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S.

687 (1995); Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725

(1997); City of Monterey v. Del Monte Dunes at Monterey, Lid., 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

1J.S. 606 (2001); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l

Pianning 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 Fal’, 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); Kelo

v. City of New London, 843 A.2d 500 (Conn.), cert. granted, 125 S. Ct.

27 (U.S. Sept. 28, 2004) (No. 04-108); Lingle v. Chevron U.S.A., Inc.,

363 F.3d 846 (9 Cir.), cert. granted, 125 S. Ct. 314 (U.S. Oct. 12,

2004) (No. 04-163); and San Remo Hotel, L.P. v. City & County of San

Francisco, 364 F.3d 1088 (9" Cir.), cert. granted in part, 125 S. Ct.

685 (U.S. Dec. 10, 2004) (No. 04-340).

> Unless permitted, the CWA prohibits discharges of pollutants from

point sources into “navigable waters.” 33 U.S.C. §§ 1311(a),

1362(12). “Navigable waters” is defined to mean “the waters of the

United States, including the territorial seas.” /d. § 1362(7).

—_—_ ~-

3

stretches CWA jurisdiction far beyond the limits of any

prior court of appeals decision (including the Sixth

Circuit’s past precedents) — there is no need for the Corps

to prove any surface hydrological connection between

wetlands and navigable waters, or that the wetlands are

physically adjacent (i.e., touching) navigable waters. It is

simply enough for the Corps to show that wetlands were

somewhere in the vicinity of surface aquatic features, as the

basis to prop-up CWA jurisdiction.

e On other occasions, the Sixth Circuit has followed the

Fourth Circuit’s “hydrological connection” theory for CWA

jurisdiction. Under this approach, the Corps and the

Environmental Protection Agency (“EPA”) assert authority

over non-navigable features like ordinary ditches, drains,

and swales, merely if they have some “hydrological

connection” to navigable waters. As a practical matter, the

hydrological connection theory supports an expansive,

virtually limitless basis for CWA jurisdiction; it enables

federal regulators to control non-navigable features in the

landscape, simply if a drop of water in them could,

potentially, reach navigable waters.

e The Fifth Circuit has expressly rejected the

“hydrological connection” theory as the basis for CWA

jurisdiction. Instead, it requires a “direct, proximate”

connection between non-navigable and navigable waters,

and has thus extended CWA jurisdiction only if a water is

actually navigable or physically adjacent thereto.

e The Second Circuit takes another approach. It recently

held that the assertion of federal CWA jurisdiction requires

the showing of an “actual discharge” of pollutants into

navigable waters. It thus requires more than physical

proximity or a “hydrological connection” to navigable

4

waters, but does not restrict CWA jurisdiction to actually

navigable waters and abutting non-navigable features.

2. Regulatory Confusion: Not surprisingly, the split

in the courts has manifested itself as chaos in the field.

According to a report issued by the United States General

Accounting Office,’ “three different district staff’ of the

Corps would likely make “three different assessments” as

to whether a particular non-navigable feature (like a

drainage ditch or a dry wash) is subject to CWA

jurisdiction. See GAO Report at 23. With no guidance

forthcoming from the Corps or EPA, this Court is the only

realistically available forum to make sense of the judicial

quagmire and explain to landowners and regulatory

agencies what kinds of non-navigable features fall within

(and outside) the CWA.

ARGUMENT

I. THIS COURT SHOULD RESOLVE THE

CIRCUIT SPLIT ON THE SCOPE OF CWA

JURISDICTION OVER NON-NAVIGABLE

FEATURES.

Since the decision in Solid Waste Agency of N. Cook

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

(“SWANCC”), five petitioners, in six separate petitions,

have sought assistance from this Court on the extent to

‘4 U.S. General Accounting Office, Report to the Chairman, Subcomm.

on Energy Policy, Natural Resources & Regulatory Affairs, Comm. on

Gov’t Reform, House of Representatives, Waters and Wetlands:

Corps of Engineers Needs to Evaluate Its District Office Practices in

Determining Jurisdiction, GAO-04-297 (Feb. 27, 2004) (“GAO

Report”).

5

which the CWA encompasses non-navigable features as

statutory “navigable waters.”

A. As the Sixth Circuit Previously Recognized,

Determining the “Precise Boundary” of Areas

Covered by the Clean Water Act Remains

“Difficult.”

Just prior to its decision in Carabell, the Sixth Circuit

went to great lengths to identify and discuss the

contradictory appellate cases on CWA jurisdiction. United

States v. Rapanos, 376 F.3d 629, 638-42 (6" Cir. 2004)

(Rapanos II). That decision pointedly recognized that

determining the “precise boundary of which waters are

covered by the CWA has been difficult.” Rapanos II, 376

F.3d at 636.° The court of appeals believed that United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121

(1985), and SWANCC, “the two leading Supreme Court

cases on the reach of the CWA[,] have done little to clear

the muddied waters of CWA jurisdiction.” 376 F.3d at 365.

* Carabell v. U.S. Army Corps of Eng'rs, 391 F.3d 704 (6" Cir.

2004), petition for cert. filed, __ U.S.L.W. ___ (U.S. April 11, 2005)

(No. 04-1384); United States v. Rapanos, 376 F.3d 629 (6" Cir. 2004),

petition for cert. filed, 73 U.S.L.W. 3466 (U.S. January 28, 2005) (No.

04-1034) (“ apanos IT” (civil appeal)); United States v. Rapanos, 339

F.3d 447 (6° Cir. 2003), cert. denied, 124 S. Ct. 1875 (2004)

(“Rapanos I’(criminal appeal)); United States v. Deaton, 332 F.3d 698

(4" Cir. 2003), cert. denied, 124 S. Ct. 1874 (2004) (“Deaton”); Treacy

v. Newdunn Assocs., LLP, 344 F.3d 416 (4" Cir. 2003), cert. denied,

124 S. Ct. 1874 (2004); United States v. Rueth Dev. Co., 335 F.3d 598

(7" Cir.), cert. denied, 540 U.S. 1050 (2003).

. “Determining which wetlands are considered ‘adjacent to’

traditional navigable waters or their tributaries has proved to be a

complication in defining CWA jurisdiction.” 376 F.3d at 636. And

again, the court of appeals stated: “Determining how much of a

connection is necessary has proven difficult.” Jd.

What this Court meant by “adjacent” in Riverside

Bayview. and “significant nexus” in SWANCC, have

become the million dollar questions confronting the lower

courts as they grapple with deciding whether and when the

CWA encompasses non-navigable features.

B. Sixth Circuit: “Mere Proximity” to Non-

Navigable Ditches That May be Connected to

Navigable Water.

Aside from the Sixth Circuit’s decision below, none of

the courts of appeals has ever held that mere proximity

alone between a wetland and a non-navigable ditch

provides the basis for CWA jurisdiction—without some

kind of hydrological connection between those features and

navigable waters. In Carabell, the record showed that the

forested wetlands were separated by a “clay ridge [which]

prevent[ed] water from the forested area of the property

from draining into the ditch.” 257 F. Supp. 2d at 919. It

was “undisputed that the property does not have a surface

water connection to any adjacent property or any adjacent

body of water,” and that “the water that is periodically

present in the forested portion of the property does not

drain to the Sutherland-Oemig drain or to any body of

water....” (/d.) Furthermore, the district court found it was

“crucial to the [administrative law judge’s] ruling that the

property was isolated from any body of water.” Id.

(emphasis supplied).

Despite the Carabell wetland’s isolation from any

water, the Corps contended that “SWANCC does not hold

that a direct hydrological connection is required to establish

jurisdiction based on adjacency.” Jd. at 927-28. In effect,

the Corps asserted jurisdiction over the wetlands merely

7

because they were near non-navigable waters, not because

of any hydrologic connection between them. Both the

district court and the court of appeals upheld the Corps’s

authority in this case based on the “mere proximity” theory.

However, neither Riverside Bayview nor SWANCC

support the “mere proximity” theory. The Riverside

Bayview Court upheld jurisdiction over “adjacent” wetlands

because it discerned a congressional intent to regulate

wetlands that are “inseparably bound up with the ‘waters of

the United States.” 474 U.S. at 134. The Court

emphasized that the wetlands in that case, described as “80

acres of low-lying marshy land,” “actually abut[ted] on a

navigable waterway,” Black Creek. /d. at 124, 135. The

SWANCC Court also stressed that the Riverside Bayview

wetlands “actually abutted on a navigable waterway,” and

further observed that its’ holding in Riverside Bayview

“was based in large measure on Congress’ 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. SWANCC

reinforced the need for an “inseparable” relationship

between non-navigable and navigable resources: “It was

the significant nexus between the wetlands and ‘navigable

waters’ that informed our reading of the CWA in Riverside

Bayview Homes.” Id. (emphasis added). Accordingly,

finding no inseparable relationship between the non-

navigable, isolated ponds at issue in SWANCC and a body

of “open water,” this Court held that the Corps’s claim of

jurisdiction “exceeds the authority granted to [the Corps]

under Section 404(a) of the CWA.” Jd. at 174.

Ir « m, the assertion of CWA jurisdiction over the

wetlands at issue in this case contravenes both Riverside

Bayview and SWANCC. Unlike the jurisdictional wetlands

8

in Riverside Bayview, the Carabell wetlands do not actually

abut an open water. For that matter, the Carabell wetlands

do not actually abut a non-navigable water, either. And like

the non-jurisdictional ponds in SWANCC, the Carabell

wetlands are physically isolated from other surface aquatic

features (here, by a berm) and thus lack the requisite

“significant nexus” to navigable waters.

C. Fourth and Sixth Circuits: “Hydrological

Connection” to Navigable Waters. —

In an earlier opinion (that is also the subject of a

pending petition for writ of certiorari), the Sixth Circuit

followed the Fourth Circuit in extending CWA jurisdiction

to all areas with “the presence of a hydrologic connection.”

Rapanos II, 376 F.3d at 639 (citing with approval United

States v. Rapanos, 339 F.3d 447, 453 (6" Cir. 2003), and

United States v. Deaton, 332 F.3d 698, 711-12 (4" Cir.

2003)). It further held: “Non-navigable waters must have a

hydrological connection or some other ‘significant nexus’

to traditional navigable waters in order to invoke CWA

jurisdiction.” Rapanos II, 376 F.3d at 642 (emphasis

added).

As in the present case,’ in Deaton and Rapanos I and

II, the Corps asserted federal authority over remote

drainage ditches that were miles away from navigable

waters. Deaton, 332 F.3d at 712; Rapanos I, 339 F.3d at

452-53. Both circuits have accepted as proper the Corps’s

apparent unrestricted ability to exert regulatory jurisdiction

’ The Carabells’ property is some distance away from navigable-in-

fact waters and more fully described in the district court’s opinion.

See, e.g., Carabell v. U.S. Army Corps of Eng’rs, 257 F. Supp. 2d 917,

918-19 (E.D. Mich. 2003).

9

“over the whole tributary system of any navigable

waterway [].” Deaton, 332 F.3d at 712; Rapanos I, 339

F.3d at 452-53. In Deaton, for example, the Fourth Circuit

reasoned that “any branch of a tributary system [including

ditches] that eventually flows into a navigable body of

water” is subject to CWA requirements. 332 F.3d at 711,

712 (emphasis added). Similarly, in Rapanos I, the Sixth

Circuit held that there was “an ample nexus to establish

jurisdiction” because Mr. Rapanos’s wetlands were

“adjacent” to a drain and a river — “adjacent” not because of

any physical proximity to navigable-in-fact waters, but by

virtue of a remote and distant hydrological connection

between the wetlands and navigable-in-fact waters.

Rapanos I, 339 F.3d at 453. In Rapanos II, the Sixth

Circuit stayed its course and again adopted the Fourth

Circuit’s “eventually flows” analysis from Deaton.

Rapanos II, 376 F.3d at 639-40 (citing Deaton, 332 F.3d at

711-12).

In short, the Fourth and Sixth Circuits have justified

federal CWA regulation simply upon the potential that a

single molecule of water could be emitted from a non-

navigable feature and traced across the landscape, so that it

may flow into a traditional navigable water. Under this

theory, it is irrelevant whether the connection between non-

navigable features and navigable waters is continuous;

whether that connection is natural or man-made; whether

the connection is at the surface or subterranean; how long

that connection is; whether pollutants traverse through a

hydrologic connection and ultimately flow into navigable

waters; or, for that matter, whether, when, or how much

water exists in such a connection. Under the Fourth and

Sixth Circuits’ view, jurisdiction is supported by a limitless

“hydrological connection” theory.

10

Thus, while the major premise underlying Riverside

Bayview and SWANCC is a “significant nexus” to navigable

waters, the “hydrological connection” theory is premised on

something less. The purposeful choice of words selected

by the Fourth and Sixth Circuits disserves, both textually

and substantively, this Court’s “significant nexus”

requirement. In Deaton, the Fourth Circuit found “a

nexus” sufficient, reading SWANCC as “suggesting that

covered non-navigable waters are those with ‘some

connection’ to navigable ones.” Deaton, 332 F.3d at 709

(emphasis supplied). Rapanos I, relying heavily on

Deaton, found an “ample nexus” sufficient. Rapanos I, 339

F.3d at 453. In Rapanos II, the Sixth Circuit approved

these previous holdings. 376 F.3d at 642. However, this

Court never premised CWA jurisdiction on “a” nexus,

“some” connection, “eventual[] flows” or a “hydrologic

connection.” Instead, this Court applied the “significant

nexus” doctrine.

D. Fifth Circuit: “Actually Navigable Waters”

and Waters “Truly” Adjacent to Them.

Contrary to its sister circuits in Deaton and Rapanos I

and JJ, the Fifth Circuit has issued decisions more faithful

to SWANCC and Riverside Bayview. On two occasions, the

Fifth Circuit has flatly rejected the Corps’s overbroad

interpretation that CWA navigable waters encompass “all

waters ... that have any hydrological connection with

‘navigable water.” In re Needham, 354 F.3d 340, 345 (5

Cir. 2003) (“Needham”) (citing 40 C.F.R. § 300.5 (2003)).

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

269-70 (5 Cir. 2001) (“Rice”). Recognizing that the

Fourth Circuit in Deaton, 332 F.3d at 702, and the Sixth

Circuit in Rapanos I, 339 F.3d at 449, agreed with the

government’s “expansive treatment,” the Fifth Circuit

countered by holding as follows:

In our view, [the government's] definition [of

“navigable waters”) is unsustainable under

SWANCC. The CWA ... [is] not so broad as to

permit the federal government to impose

regulations over “tributaries” that are neither

themselves navigable nor truly adjacent to

navigable waters. Consequently, in this circuit

the United States may not simply impose

regulations over puddles, sewers, roadside ditches

and the like; under SWANCC “a body of water is

subject to regulation ... if the body of water is

actually navigable or adjacent to an open body of

navigable water.”

Needham, 354 F.3d at 345-46 (internal citations omitted,

emphasis added) (citing Rice, 250 F.3d at 269). See also

FD&P Enters., Inc. v. U.S. Army Corps of Eng'rs, 239 F.

Supp. 2d 509, 516 (D. N.J. 2003) (holding proper analysis

is the “significant nexus” test and expressly rejecting

“hydrological connection” test).

Needham entrenches the view earlier announced by

the Fifth Circuit in Rice, where it interpreted SWANNC and

Riverside Bayview and held that “a body of water is subject

to [CWA] regulation ... if the body of water is actually

navigable or adjacent to an open body of navigable water.”

Rice, 250 F.3d at 269. The Rice court found nothing to

indicate that the creek at issue, or other unnamed

intermittent creeks, were “sufficiently linked” to navigable-

in-fact water. /d. at 271. The Fifth Circuit thus held that

there must be “a close, direct and proximate link between ...

[the] discharges of oil and any resulting actual, identifiable

12

oil contamination of natural surface water that satisfies the

jurisdictional requirements of the [CWA].” /d. at 272.

Moreover, Needham reaffirmed the Fifth Circuit’s

actual adjacency requirement from Rice, when it held “the

term ‘adjacent’ cannot include every possible source of

water that eventually flows into a navigable-in-fact

waterway. Rather, adjacency necessarily implicates a

‘significant nexus’ between the water in question and the

navigable-in-fact waterway.” Needham, 354 F.3d at 346

and n.12 (citing SWANCC, 531 U.S. at 167; identifying the

Corps’s definition of “adjacent” as “bordering, contiguous,

or neighboring” in 33 C.F.R. § 328.3, and recognizing

partial invalidation of that regulation by SWANCC).

E. Second Circuit: “Actual Discharge” of

Pollutants to Navigable Waters.

The Second Circuit Court of Appeals has recently

offered another mode of analysis to determine the extent of

CWA jurisdiction. In Waterkeeper Alliance, Inc. v. U.S.

Envil. Protection Agency, 399 F.3d 486 (2d Cir. 2005), the

court reviewed an EPA rule establishing CWA Section 402

permit requirements for discharges of water pollutants from

concentrated animal feeding operations (the “CAFO Rule”).

Industry groups brought a facial challenge, arguing that the

CAFO Rule was illegal because it sought to establish a duty

to apply for a Section 402 permit® simply for a potential to

* The Act’s main permit provisions are Sections 402 and 404.

Section 402 requires permits for the discharge of pollutants. 33 U.S.C.

§ 1342. Section 404 requires permits for the discharge of a specific

type of pollutant, namely, dredged or fill material. /d. § 1344. The

jurisdictional polestar for both permits is a “discharge,” which means

“any addition of any pollutant into navigable waters...” 33 U.S.C. §

1362(12) (emphasis supplied).

13

discharge pollutants. /d. at 504. The Second Circuit found

that the CAFO Rule violated the CWA’s statutory scheme

because:

In the absence of an actual addition of any

pollutant to navigable waters from any point,

there is no point source discharge, no statutory

violation, ... and no statutory obligation of point

sources to seek or obtain [a CWA] permit in the

first instance.

Id. at SOS (emphasis supplied).

Thus, the Second Circuit emphasizes that the

requirement to obtain a CWA permit depends on an actual

discharge of pollutants to navigable waters, not a mere

hydrological connection to navigable waters. In other

words, it is not simply the possible addition of water to

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

“navigable water,” that triggers CWA permitting

requirements in the Second Circuit.

The “actual discharge” standard from Waterkeeper

Alliance is at odds with Deaton, where the Fourth Circuit

upheld federal jurisdiction on the reasoning that a discharge

of pollutants into a non-navigable ditch “has the potential to

move downstream and degrade the quality of the navigable

waters themselves.” Deaton, 332 F.3d at 707 (emphasis

supplied); id. at 711 (CWA jurisdiction “extends to any

branch of a tributary system that eventually flows into a

navigable body of water”). As the petition for certiorari to

this Court in Deaton made clear, “there [was] nothing in the

record to suggest that dirt from the Deatons’ ditch-digging

. reached and degraded the Wicomico River.” Petition for

Writ of Certiorari at 8, United States v. Deaton, 332 F.3d

14

698 (4" Cir. 2003), petition for cert. filed, 92 U.S.L.W. 3356

(U.S. Nov. 13, 2003) (No. 03-701). For that matter, there

was no evidence in Deaton (or in Carabell, or Rapanos I or

11), that dirt even left the sites at issue. Nonetheless, to

mobilize its expansive “hydrological connection” theory

over non-navigable features, the Fourth and Sixth Circuits

have found it unnecessary to justify CWA jurisdiction by

requiring an actual discharge of pollutants to navigable

waters.

The divergent tests proffered by the courts of appeals

can be understood as analogous to variant levels of

causation. The loosest causal relationship is represented by

the Fourth and Sixth Circuit’s “but for” approach, where

non-navigable features are deemed jurisdictional because

they are geographically near (but isolated from) navigable

waters, or because water in non-navigable features may

potentially reach “navigable waters” via a remote hydrologic

connection. The Second Circuit has established a more

proximate approach as the basis for CWA jurisdiction,

requiring an addition of pollutants (not simply physical

closeness or a possible contribution of hydrology) to

navigable waters.’ And the Fifth Circuit requires the highest

causal nexus, extending CWA authority only over actually

navigable waters and non-navigable features that physically

touch them. This Court is uniquely well-equipped to assist

the lower courts with “difficult questions of proximity and

degree,” and has done so particularly with regard to the

scope of regulatory jurisdiction under federal environmental

laws. See Babbitt v. Sweet Home Chapter of Cmtys. for a

Great Or., 515 U.S. 687, 708 (1995). See also id. at 712-

* See W. Page Keeton et al., Prosser and Keeton on Torts §§ 41-42

(5" ed. 1984) (discussing the various connections between an act and

damage “caused” by the act).

15

713 (O’Connor, J., concurring) (using concept of proximate

cause to sustain Endangered Species Act “ ” regulation,

_ based on the regulation’s textual requirement of “actual{],”

as opposed to possible, death or injury to species).

Respectfully, the Court should issue the writ of certiorari to

clarify the level of “proximity and degree” that a non-

navigable feature must bear in relation to a “navigable

water,” before the Corps and EPA can assert the awesome

authority they possess under the CWA.

ll. THE CONFUSION CREATED BY THE

REGULATORY AGENCIES IN THE FIELD

SHOULD COMPEL THIS COURT'S

INVOLVEMENT.

A. Congress Has Recognized the Agencies’

Haphazard Implementation of “Navigable

Waters” Jurisdiction.

Congress and the agencies have continually struggled

with the extent of CWA jurisdiction ever since this Court’s

2001 decision in SWANCC. Indeed, Congress held a

hearing on the regulatory implications of SWANCC, which

led to a promise from the Corps and EPA that they would

clarify the scope of CWA jurisdiction to benefit both their

field offices and the regulated community. But the

agencies have broken their promise. They have issued no

meaningful regulatory guidance to date, and none is

expected or forthcoming.

In 2002, the House Subcommittee on Energy Policy,

Natural Resources and Regulatory Affairs, chaired by

Representative Doug Ose, held a hearing concerning EPA

and Corps implementation of this Court’s SWANCC

decision. See Agency Implementation of the SWANCC

16

Decision: Hearing Before the Subcomm. on Energy Policy,

Natural Resources and Regulatory Affairs of the Comm. on

Gov't Reform, No. 107-230, 107" Cong. 2d Sess. (2002)

(statement of Rep. Doug Ose, Chairman) (“Subcomm.

Hearing”). During that hearing, Representative Ose

recognized that the agencies’ different approaches to

determining CWA jurisdiction have “resulted in widely

varying interpretations of the scope of jurisdiction....” /d. at

2. Furthermore, Representative Ose explained that the

“current situation is creating confusion and chaos” for the

States,’ because the lack of agency guidance “hinders

States in their ability to implement their own programs to

protect wetlands.” /d. To address the confusion, the EPA

and Corps repeatedly agreed to conduct a rulemaking to

clarify their position regarding CWA _ jurisdiction.

Subcomm. Hearing at 32, 36, 38, 41, 53.

Things appeared hopeful in 2003, when the Corps and

EPA issued an Advanced Notice of Proposed Rulemaking

to “ensure that the regulations are consistent with the CWA

and the public understands what waters are subject to CWA

jurisdiction.” Advanced Notice of Proposed Rulemaking

on the Clean Water Act Regulatory Definition of “Waters

of the United States,” 68 Fed. Reg. 1991, 1993 (January 15,

2003) (“ANPR”). The agencies recognized that their

' See also Brief of Amici Curiae of the Building Industry Legal

Defense Foundation, ef al. in Support of Petitioners at 2-8, United

States v. Deaton, 332 F.3d 698 (4° Cir. 2003), petition for cert. filed,

92 U.S.L.W. 3356 (U.S. Nov. 13, 2003) (No. 03-701). Amici Curiae

discussed specific examples of how regulators in California are

“improperly asserting jurisdiction under the CWA.” /d. at 2. They

included in their brief a series of examples such as: (1) regulating a

“vertical-walled box culvert as waters of the United States that are

swimmable”; and (2) declaring that a municipal storm sewer system,

including streets, curbs, and gutters, are CWA navigable waters. /d. at

5-7.

17

current regulations were causing confusion and that they

needed to develop new regulations to “clarify[{] what waters

are subject to CWA jurisdiction.” /d.

However, after receiving thousands of pages of public

comments, the agencies announced that they would not

move forward with rulemaking or otherwise issue any

guidance at all to clarify the confusion. Through a press

release, the EPA and Corps declined further agency action,

stating:

After soliciting public comment to determine if

further regulatory clarification was needed, the

EPA and Corps have decided to preserve the

federal government’s authority to protect our

wetlands. The agencies will continue to monitor

implementation of this important program to

ensure its effectiveness.

See Press Release, Environmental Protection Agency and

U.S. Army Corps of Engineers, EPA and Army Corps Issue

Wetlands Decision (December 16, 2003), available at

http://www.epa.gov/newsroom. The confusion still exists

without any expected schedule for clarification from these

agencies.

In light of the abandoned rulemaking on SWANCC,

and without this Court’s review, the lower courts have

become the final arbiters on the scope of CWA jurisdiction.

But, as shown above, they are in a state of disarray.

Everyone — including the agencies — will anticipate and

scrutinize every federal trial and circuit court opinion in the

absence of reasoned agency decision-making. Indeed, the

ANPR itself documented the divergent judicial views

concerning those water bodies that are regulated under the

18

CWA and those that are not. In a blatant abdication of their

responsibilities, the Corps and EPA directed their field staff

to make jurisdictional decisions on a “case-by-case basis”

by “considering the relevant court decisions.” 68 Fed. Reg.

1991, 1998.

B. The General Accounting Office Has Reported

on Rampant Regulatory Inconsistencies.

The U.S. General Accounting Office (“GAO”) has

issued a report confirming Congress’s findings of

regulatory inconsistency. See Report to the Chairman,

Subcomm. on Energy Policy, Natural Resources and

Regulatory Affairs, Comm. on Government Reform, House

of Representatives, Waters and Wetlands: Corps of

Engineers Needs to Evaluate Its District Office Practices in

Determining Jurisdiction, GAOQ-04-297 (Feb. 27, 2004)

(GAO Report).'!

The GAO Report identifies and documents the

different and often contradictory approaches, both among

and within the Corps’s districts, regarding whether a

particular non-navigable feature qualifies as a “tributary” or

an “adjacent” wetland. /d. at 20-22 and 17-20." In

addition, the GAO Report concludes that there is no

consistency within the Corps on whether ditches and other

man-made conveyances are subject to federal regulation.

'' Available at http://www.gao.gov/new.items/d04297.pdf.

'2 See, e.g., GAO Report at 3 (“Districts apply different approaches”);

id. (“differences in identifying jurisdictional limits”); id. at 4 (districts

need “[t]o provide greater clarity to the regulated community”); id. at

18 (“districts varied”); id. at 20 (districts “could differ significantly”);

id. at 23 (“three different district staff’ would probably make “three

different assessments”); id. at 25 (“contrast” among districts).

19

Id. at 22-26. In effect, the GAO Report confirms that the

Corps does not know what the word “tributary” means, or

how to identify a “tributary” or an “adjacent” wetland in the

field with any predictability or consistency. Furthermore,

GAO found that few Corps districts actually disclose “their

practices for making jurisdictional determinations to the

public.” GAO Report at 27.

Consequently, we are left with an _ inconsistent

patchwork of jurisdictional determinations that is wholly

unsupported by any rulemaking record or other

documentation. Such ad hoc decision-making is precisely

the kind of situation where Chevron deference is not due.'?

With no federal agency plans for a future rulemaking, and

with the courts of appeal in conflict, the sole remaining

venue to resolve these issues is this Court.

C. Whether Federal Regulators Assert CWA

Jurisdiction Now Depends on the Geographic

Jurisdiction of the Various Courts of Appeal,

Not on a Consistent Regulatory Program.

Because the agencies have relied on divergent court

decisions to direct the public, landowners are now

confronted with geographically disparate applications of the

CWA. This subjects them to significant criminal and civil

penalties based solely upon where their land is situated.

Thus, landowners in the Sixth and Fourth Circuit states of

Kentucky, Michigan, Ohio, Tennessee, Maryland, Virginia,

North Carolina, South Carolina and West Virginia are

subject to over-regulation because federal jurisdiction is

'? See, e.g., Chevron, U.S.A. v. Natural Resources Defense Council,

467 U.S. 837 (1984). The Fourth Circuit determined that Chevron

deference was appropriate and held that “the word ‘tributaries’ ...

means what the Corps says it means.” Deaton, 332 F.3d at 711.

20

” «6

triggered if their property has “mere proximity,” “some

connection,” or is .“hydrologically connected,” to

traditionally navigable waters.

By contrast, areas in the Fifth Circuit states of

Mississippi, Louisiana and Texas will be regulated under

the CWA only if they physically abut an actually navigable

water. And landowners in the Second Circuit states (New

York, Connecticut, and Vermont) will be regulated not

through the hydrological connection test, but only where

pollutants are shown to migrate off their properties and

result in an actual discharge to navigable waters.

CONCLUSION

The Sixth Circuit’s opinion in Carabell does nothing

to clarify this mess. Indeed, its “mere proximity” theory

adds yet another “test” overall, and two within its own

circuit.

The Supreme Court’s involvement is urgently needed

so the Corps can regulate with consistency and property

owners know, up front, if the arm of the federal government

properly reaches their land and triggers CWA permitting

and penalty requirements.

DATED: May 13, 2005

Respectfully submitted,

Duane J. Desiderio*

Thomas J. Ward

Felicia K. Watson

National Association of Home Builders

*Counsel of Record