Amicus Curiae Brief — Rapanos v. United States

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INTERESTS OF AMICI CURIAE

The Government’s assertion that the term “waters of the

United States,” under the Clean Water Act (CWA or Act),

extends to all geographic features that have a hydrological

connection to navigable waters affects numerous activities

undertaken by Amici Curiae. All parties have consented to

the filing of this Brief. '

The Foundation for Environmental and Economic Progress

(FEEP) is a national coalition of land-holding companies

that advances balanced federal environmental law and policy

affecting private land use. FEEP members own property

throughout the Nation and must obtain CWA permits to

manage and develop land.

The National Association of Realtors®” (NAR) is a non-

profit professional association of over 1.1 million members in

the real estate industry. NAR’s members’ business activities

are adversely affected by unwarranted limitations on the

use of property, as are those of its members’ clients and

customers.

The Utility Water Act Group (UWAG) is an association of

205 electric utilities and four national trade associations of

electric utilities: The Edison Electric Institute, the National

Rural Electric Cooperative Association, the American Pub-

lic Power Association, and the Nuclear Energy Institute.

UWAG’s members operate facilities that generate, transmit,

and distribute over fifty percent of the Nation’s electricity.

UWAG members frequently obtain CWA permits to con-

struct and maintain their generation facilities, transmission

and distribution lines, and their associated families.

‘The letters of consent have been filed with the Clerk of Court.

Pursuant to Rule 37.6 of this Court, amici state that their counse! authored

this brief and amici paid for it. This brief was not written in whole or in

part by counsel for a party to these cases, and no one other than amici

made a monetary contribution to its preparation.

The Chamber of Commerce of the United States of Amer-

ica (Chamber) is the world’s largest business federation.

- With a substantial presence in all fifty States and the District

of Columbia, the Chamber re, resents an underlying member-

ship of more than three million businesses and organizations

of every size and kind. As the principal voice of American

businesses, the Chamber regularly advocates the interests of

its members in federal and state courts — the country

on issues of national concern.

SUMMARY OF ARGUMENT

The plain language of the CWA expresses Congress’s intent

to regulate “navigable waters.” The term “navigable waters”

means “the waters of the United States, including the territorial

seas.” This Court has found the reach of the Act to be clear,

and has approved an extension of jurisdiction beyond

navigable waters only for wetlands that are inseparably bound

up with and have a significant nexus to navigable waters. The

Court based this limited extension on clear congressional intent

to regulate such wetlands. Thus, the Act only reaches

nonnavigable waters if they have a significant and inseparable

bond with navigable waters. This bond must be important,

consequential, and weighty; the connection with navigable

waters must occur on a regular and ordinary basis.

The Government claims this Court’s “significant nexus”

test can be met by any hydrological connection through any

type of conveyance, no matter how infrequent or attenuated.

The Government’s application of the any connection theory

extends jurisdiction to distant, intrastate ditches, ephemeral

desert drainages, underground pipes, and other areas even

more remote than it reached under the debunked Migratory

Bird Rule. Like the bird rule, the any connection theory

carries the Government well into the traditional province of

the States. Yet, the Act contains no clear statement, and there

is no legislative history to suggest, that Congress authorized

or intended this result. To the contrary, Congress chose to

“recognize, preserve and protect the primary responsibilities

and rights of States” over land and water resources. Indeed,

the agency regulations that were in effect the last time Con-

gress considered the scope of the Act excluded such features

from jurisdiction. Likewise, the current regulations that

define “waters of the United States” exclude ditches and

purport to regulate intermittent streams only under an “af-

fecting commerce” rationale that is no longer viable. They do

not mention ephemeral drainages at all. Nor do they suggest

that “any connection” can be a basis of jurisdiction. Finally,

it is not necessary to call every ditch or ephemeral drainage a

water of the United States. The Act provides ample authority

for the Government to regulate upgradient polluting activities

that will impact navigable waters without federalizing the

locations where the activities occur.

ARGUMENT

Although nominally about “adjacent wetlands,” these cases

are really about ditches. This is so because the Rapanos and

Carabell wetlands may be deemed “waters of the United

States” if and only if the ditches to which the Government

claims the wetlands are adjacent are themselves waters of the

Untied States. United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 132-25 (1985) (holding that wetlands ad-

jacent to a navigable waterway are waters of the United

States). In both Rapanos and Carabell, the lower court erred

when, contrary to this Court’s decisions in SWANCC* and

Riverside, it determined that because the ditches at issue here

had a hydrological connection, through miles of other ditches,

intermittent creeks, and culverts, to navigable waters, the

? Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) (SWANCC).

ditches had a “significant nexus” with navigable waters, and

therefore, CWA jurisdiction was proper.”

I. THE CWA REGULATES “NAVIGABLE WA-

TERS” AND MAY REACH NONNAVIGABLE

WATERS ONLY IF THE NONNAVIGABLE

WATERS HAVE A “SIGNIFICANT” AND

“INSEPARABLE” BOND WITH “NAVIGABLE

WATERS.”

Section 404(a) of the CWA regulates the “discharge of

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

§ 1344(a). Section 502 defines “navigable waters” to mean

“waters of the United States, including the territorial seas.” Jd

§ 1362(7). The Government has interpreted the term “waters

of the United States” to include ditches and drains that have

a” hydrological connection to navigable waters. Yet, by its

terms, the CWA does not grant jurisdiction over ditches and

drains, nor does it grant jurisdiction over any water, based

solely « on a hydrological connection to navigable waters.*

> Carabell v. U.S. Army Corps of Eng'rs, 391 F.3d 704, 710 (6th Cir.

2004), cert. granted 126 S.Ct. 415 (2005) (CWA jurisdiction over non-

navigable waters requires a significant nexus to navigable waters, “which

can be satisfied by the presence of a hydrological connection”); United

States v. Rapanos, 376 F.3d 629, 642 (6th Cir. 2004), cert. granted 126

S.Ct. 414 (2005) (sites at issue “contained a hydrological connection to

navigable waters and thus fell within the jurisdiction of the CWA”).

“The Government attempts to gloss over this semantic inconvenience

by referring to the ditches and drains as “tributaries.” But tributaries are

not in the statute either. In fact, the 1972 Conference Committee struck a

reference to “tributaries” that had been included in the Senate’s definition

of “navigable waters.” See S. 2770, 92d Cong. § 502(h) (1971), reprinted

in 2 Cong. Research Serv., Legislative History of the Clean Water Act, at

1698 (1973). Moreover, the last time Congress considered the CWA, the

Corps’s regulations excluded ditches from jurisdiction and asserted juris-

diction over tributaries only to the headwaters, which would exclude

many intermittent streams. See infra pp. 19-24.

This Court has considered the geographic reach of the

CWA only twice. Most recently, it ruled that the U.S. Army

Corps of Engineers (Corps) exceeded its authority by assert-

ing jurisdiction over nonnavigable, isolated waters under the

Migratory Bird Rule. SWANCC, 531 U.S. 159 (2001). Of

critica] importance to the Court’s conclusion was that section

404(a) speaks of “navigable waters.” Jd. at 162. The Court

found section 404(a) to be clear: “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 jurisdic-

tion over waters that were or had been navigable in fact or

which could reasonably be so made.” Jd. at 172. This Court

rejected the argument that “Congress’ separate definitional

use of the phrase ‘waters of the United States’ constitute[d]

a basis for reading the term ‘navigable waters’ out of the

statute.”° Jd. The Court acknowledged, however, that the

phrase “waters of the United States” evinced a Congressional

intent to reach “‘at least some’” waters not traditionally navi-

gable. /d. at 167 (quoting Riverside, 474 U.S. at 133).

Building on Riverside to give effect to the term “naviga-

ble,” the SWANCC Court emphasized that there must be an

“inseparable” relationship between nonnavigable and navi-

gable waters to extend CWA jurisdiction to nonnavigable

waters: “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). The

Court stressed that its holding in Riverside was “based in

large measure upon Congress’ unequivocal acquiescence to,

and approval of, the Corps’ regulations interpreting the CWA

to cover wetlands adjacent to navigable waters.” Jd. (citing

* Responding to the Government’s argument in SWANCC that the

CWA’s legislative history showed that Congress intended the term “‘navi-

gable waters’ to be given the broadest constitutional interpretation,” this

Court found that nothing “in the legislative history . . . signifies that Con-

gress intended to exert anything more than its commerce power over

navigation.” SWANCC, 531 U.S. at 168 n.3.

Riverside, 474 U.S. at 135-39). It found no similar legislative

history or rulemaking to support jurisdiction over the ponds

in SWANCC. ;

In short, Riverside and SWANCC establish that when the

Government seeks to extend CWA jurisdiction beyond navi-

gable waters, the Government must show that the nonnavi-

gable waters and the navigable waters are “inseparable.”

SWANCC, 531 U.S. at 167; Riverside, 474 U.S. at 134.

A. “Significant Nexus” Means an Important and

Regularly Recurring Relationship.

“A” connection cannot establish a “significant nexus.”

“Significant” means “full of import,” “important,” “weighty,”

and “consequential.”® See Nat'l Ass'n of Home Builders v.

Norton, 340 F.3d 835, 846 (9th Cir. 2003) (the “commonly

understood” meaning of significant is “important”). Signifi-

cant does not mean “a” or “any.” Courts have explicitly

rejected attempts to equate “significant” with “any.” See

Onishea v. Hopper, 171 F.3d 1289, 1299 (1ith Cir. 1999)

(holding that “significant risk” of HIV transmission does not

mean “any risk” and “must be rooted in sound medical

opinion and not be speculative or fanciful”); KCS7-TV, Inc. v.

FCC, 699 F.2d 1185, 1189 (D.C. Cir. 1983) (television chan-

nels watched “occasionally” are not “significantly viewed”

channels).

Environmental statutes and regulations take a similar view

of “significant.” When the Corps evaluates a permit applica-

tion, it must prepare an environmental impact statement (EIS)

if the permit will “significantly” affect the environment. 42

LISH LANGUAGE UNABRIDGED 2116 (1993) (“full of import,” “ImporR-

TANT, WEIGHTY”); THE NEW SHORTER OXFORD ENGLISH DICTIONARY

ON HISTORICAL PRINCIPLES 2860 (1993) (“Important,” “consequential”);

RANDOM HOUSE UNABRIDGED DICTIONARY 1779 (1993) (“important; of

consequence”).

U.S.C. § 4332(2)(C). The Corps’s regulations make clear

that a “significant” permit is the exception, not the rule. 33

C.F.R. § 230.7(a) (“Most permits will normally require only

an [environmental assessment],” not an EJS.). Similarly, the

CWA § 404(b)(1) Guidelines bar permit issuance if a project

would result in “significant degradation.” Significance is to

be assessed based on the “persistence and permanence of the

effects,” not fleeting or potential effects. 40 C.F.R. § 230.10(c)

(emphasis added).

The required significant, inseparable relationship between a

navigable water and a nonnavigable one must also be regular

and continuous, rather than occasional or infrequent. This is

‘confirmed by the Corps’s regulations, which limit jurisdiction

over non-wetland waters to the “ordinary high water mark”

(OHWM). 33 C.F.R. § 328.4(c)(1). Cases interpreting that

term have consistently found that OHWM, and thus the reach

of CWA jurisdiction, is measured during “ordinary” con-

ditions, not occasional or extraordinary conditions.’ The

Government’s “any connection” theory, on the other hand,

allows jurisdiction based upon “a” connection, no matter how

infrequent, irregular, or attenuated the relationship between the

water-bodies. That theory, in turn, facilitates the regu-

lation of ephemeral and intermittent drainages, including

ditches that may have an “occasional,” but not “ordinary,”

relationship with navigable waters. But under Riverside and

SWANCC, a water that has only an infrequent or occasional

relationship to navigable waters cannot be considered to have a

’ Oklahoma v. Texas, 260 U.S. 606, 632 (1923) (the river bed does not

include the “lateral valleys [even though they are] . . . temporarily over-

flowed in exceptional instances when the river is at flood.”); United States

v. Pend Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502 (9th Cir. 1991)

(calculating ordinary high water line requires the exclusion of annual

spring floods); United States v. Harrell, 926 F.2d 1036, 1042 (11th Cir.

1991) (the ordinary high water mark is “‘the line to which high water or-

dinarily reaches’’’) (citations omitted).

Significant nexus with navigable waters, even though it ma

have “a” connection under some extraordinary circumstances.

B. The Fifth Circuit Properly Applied the Term

“Navigable” and This Court’s “Significant

Nexus” Standard.

In contrast to the court below, the Fifth Circuit has faith-

fully applied the terms “navigable,” “significant,” and “in-

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

(Sth Cir. 2001), the court followed Riverside and SWANCC

and rejected claims of jurisdiction over intermittent streams;

even though they had some connection to navigable waters:

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. In

short, there is 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. Further, in Jn re Needham, 354 F.3d 340 (Sth

Cir. 2003), the court considered and rejected the argument

that the CWA “covers all waters, excluding groundwater, that

have any hydrological connection with ‘navigable water.’”

Id. at 345. The court declined to follow other courts that had

accepted this theory because to do so “would push the [CWA]

to the outer limits of the Commerce Clause and raise serious

* Indeed, the most the Government can muster in Carabell is an “occa-

sional” hydrological connection between the wetland and the adjacent

ditch through “drainage cuts that run through the berm.” Brief for the

Respondents in Opposition [for a Petition of Certiorari}], Carabell v. U.S.

Army Corps of Eng'rs, No. 04-1384 at 5, 10 (filed June 2005) (U.S.

Carabell Cert. Opp.).

constitutional questions.” /d. at 345 n.8. Reaffirming Rice,

the Needham court stated that “the United States may not

simply impose regulations over puddles, sewers, roadside

ditches and the like; under SWANCC ‘a body of water is sub-

ject to regulation . . - if the body of water is actually navigable

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

Thus, the Fifth Circuit appropriately required that for a

nonnavigable water to be deemed a water of the United

States, it must have a regular, “close, direct and proximate

link” or relationship to navigable waters. “Any” connection

is not enough. Rice, 250 F.3d at 272.

Il. THE GOVERNMENT TRIES TO AVOID

SWANCC BY CLAIMING THAT ITS REASON-

ING IS IRRELEVANT TO “CONNECTED”

WATERS AND THEN FINDING “CONNEC-

TIONS” IN UNLIKELY PLACES.

The Government's response to SWANCC is to avoid it.'® It

says that SWANCC dealt solely with “nonnavigable, isolated,

intrastate waters.” It then claims that this Court’s construc-

tion of the statute and the reasoning that led to its decision in

SWANCC are inapplicable to any situation in which a non-

navigable water, be it a ditch or ephemeral drainage, has any

hydrological connection to a navigable water.'' This theory,

* Needham, 354 F.3d at 345-46; see also FD&P Enters., Inc. v. U.S.

Army Corps of Eng'rs, 239 F. Supp. 2d 509, 516 (D.N.J. 2003) (a hydro-

logical connection, by itself, is not enough to confer jurisdiction).

" See, eg, U.S. Carabell Cert. Opp. at 3, 6 n.2, 8, 11; Brief of the

United States as Appellee at 40-47, United States v. Johnson, No. 05-1444

(1st Cir. filed Aug. 24, 2005); Brief of the United States, Appellee at 26-

32, United States v. Krilich, 303 F.3d 784 (7th Cir. 2002), cert. denied

$38 U.S. 977 (2003) (No. 01-2746).

'' This is wrong. Seminole Tribe of Fla. v. Florida, $17 U.S. 44, 67

(1996) (“When an opinion issues for the Court, it is not only the result but

however, is based on specious reasoning which goes as

follows:

e SWANCC held that an isolated water was not a

water of the United States.

e Therefore, any water that is not isolated is a water

of the United States.

The Government’s reasoning sends courts and regulators on a

fool’s errand. No water is truly isolated. '*

Moreover, that is not what this Court said. The SWANCC

Court, informed by and explaining Riverside, found that

nonnavigable waters must have a “significant nexus” to, and

be “inseparably bound up with,” navigable waters. 531 U.S.

at 167-68 (citing Riverside, 474 U.S. at 134). But in the

Government’s hands, the “significant nexus” test is converted

to a search for “any connection.”"?

Indeed, it is ironic that four years after this Court rejected

the Corps’s Migratory Bird Rule because, among other things,

it would “result in a significant impingement of the States’

traditional and primary power over land and water use,” id. at

174, the Government has managed to use its “hydrological

connection” theory to move even farther upgradient than it

did under the bird rule. By now claiming all “connected”

waters, such as ditches and ephemeral drainages, are “tribu-

taries,” the Corps has erected a skeleton of “connections”

also those portions of the opinion necessary to that result by which we are

bound.”’).

"2 As Justice Stevens pointed out in his dissent in SWANCC, for most

waters, including the SWANCC ponds, it is possible to find a hydrologi-

cal or ecological connection to navigable waters. See 531 U.S. at 176 n.2

(Stevens, J., dissenting); see also infra note 17.

" The Sixth Circuit followed the Government's chicanery: It said it

was applying the significant nexus standard, but then allowed it to be “sat-

isfied by the presence of a hydrological connection.” Carabell, 391 F.3d

at 710.

which then provide a basis to regulate any wetland “adjacent”

to them.

In California's Central Valley, for example, prior to

SWANCC, the Corps determined that two cattle waste ponds

were waters of the United States because they were used by

migratory birds. A nearby drainage ditch was deemed non-

jurisdictional.'* After SWANCC, the property owner sought a

_te-determination of jurisdiction over the ponds, only to be

told that the ditch was now a tributary, and thus, the waste

ponds remained jurisdictional, this time as “adjacent” wet-

lands.

In the Corps’s Jacksonville District Office, re have

been instructed to “follow the drop of water.”’® Following

the drop of water, however, is a limitless and tautological

endeavor. All water is part of the hydrologic cycle, and, at

some level, “connected.”'’ Thus, in a case currently before

the First Circuit, all that the Government needed to prove that

a family cranberry farm “connects” to distant navigable

waters was the deposition_of its hydrologist that “[g]eo-

graphically speaking, the Sites are all located within the

* Letter from Justin Cutler, Project Manager, Delta Office, U.S. Army

Corps of Eng’rs, Sacramento Dist., to James Gibson, Gibson & Skordal

(Aug. 24, 2000) at App. Sa-6a; Letter from James Gibson, Gibson &

Skordal, to Justin Cutler, Project Manager, Delta Office, U.S. Army Corps

of Eng’rs, Sacramento Dist. (Aug. 17, 2000) at App. la-4a.

'S Letter from Michael Jewell, Chief, California/Nevada Section, U.S.

Army Corps of Eng’rs, Sacramento Dist., to James Gibson, Gibson &

Skordal (Aug. 13, 2001) at App. 7a-10a.

Army Corps of Eng’rs, Jacksonville Dist., SWANCC Update and After-

math (Apr. 5, 2002) at App. 12a-13a.

"” See. eg. U.S. Geological Survey, The Water Cycle, http://ga.

water.usgs.gov/edu/watercycle.html; U.S. EPA Region |, The Water Cycle

and Water Conservation at A-2, hittp://www.epa.gov/regionO | /students/

pdfs/ gndw_712.pdf (“In nature’s water cycle, all things are connected.”’).

Weweantic watershed, and basic principles of hydrology

indicate that water drains from the Sites until it reaches the

Weweantic River and, eventually the Atlantic Ocean.”'* But,

as EPA says, “[w]e all live in a watershed.”"®

A 2004 study by the General Accounting Office documents

numerous instances in which Corps districts have used under-

ground drain tiles, storm drain systems, and pipes to establish

a hydrological connection to recapture jurisdiction over other-

wise isolated features.”” The Jacksonville District explicitly

allows for connections “through mechanical means such as

pumping.””' Some districts limit the distance of such “con-

nections,” but the Chicago District recently issued guidance

instructing its regulatory staff that “[t}here is no distance

limitation.”

Ironically, in desert areas where there is seldom a drop of

water to follow, and where the “marks” used to identify the

'* See Declaration of Scott Horsely 4 16 in support of United States’s

Memorandum in Support of its Motion for Summary Judgment on Liabil-

ity, United States v. Johnson, No. 99-2465 (D. Mass. filed Feb. 19, 2004).

‘7 U.S. EPA, Watersheds, http://www.epa.gov/owow/ watershed/; see

also Physical Science: Concepts in Action at 704-08 (Pearson Prentice

Hall 2004) (high school text book stating that “the Mississippi River

watershed drains most of the central United States . . . from the Rocky

Mountains in the west to the Appalachian Mountains in the east”).

neers Needs to Evaluate Its District Office Practices in Determining

Jurisdiction at 24-26 (Feb. 2004) (GAO Study), available at http://www.

gpoaccess. gov/gaoreports.

*" U.S. Army Corps of Eng’rs, Jacksonville Dist., Approach on Iden-

tifying Adjacent Wetlands and Isolated Waters (July 11, 2003) at

App. 16a.

2 Email from Mitchell Isoe, Chief, Regulatory Branch, U.S. Army

Corps of Eng’rs, Chicago Dist., to U.S. Army Corps of Eng’rs, Chicago

Dist., clarifying the Chicago District's Policy on CWA Jurisdictional De-

terminations (Feb. 9, 2005) at App. 18a.

“ordinary high water mark” on the barren desert landscape

are often “remnants of a time when the water flowed along a

different course,””’ the Government applies its theory to the

furthest extreme. Relying on such “marks” as evidence of

“ordinary” water flow, the Corps regularly asserts jurisdiction

____over remote desert washes hundreds of miles from the nearest

navigable water.”* In Tucson, for example, the Corps deter-

mined that an ephemeral desert wash was a tributary to the

Colorado River even though the wash terminated at a storm

water detention basin hundreds of miles from the Colorado.

The Corps determined that a “tributary connection” was es-

tablished from the detention basin through a 6 inch diameter

culvert. The culvert connected to a | foot wide channel,

which connected to a concrete channel, which connected to

a natural channel, which meandered through a residential

neighborhood. Beyond that there was no channel, only paved

surfaces. According to the Corps, however, “[t]hese road

crossings act as conduits of the water and maintain the tribu-

tary connection” to three normally dry channels that finally

connect to the Colorado River.”°

* GAO Study at 21.

* See U.S. Army Corps of Eng’rs, Los Angeles Dist., Jurisdictional

Determinations in Arizona, available at http://www.sp).usace.army.mil/

regulatory/jdocs/readx_jd_az.pl?order_by=filename&order=abc.

** U.S. Army Corps of Eng’rs, Los Angeles Dist., Admin. Appeal

Decision, Approved Jurisdictional Determination for the Sunrise Office

Park, File No. 2001-00379-RJD, at 2-4 (Sept. 7, 2001), available at http://

www. spd.usace.army.mil/cwpm/public/ops/regulatory/adminA ppeals/AS

%20SENT%20F inalSunriseOfficeParkAppealDecision pdf, see also U.S.

Army Corps of Eng’rs, Los Angeles Dist., Admin. Appeal Decision,

Approved Jurisdictional Determination for the Turner Property, File No.

2000-00554-RJD, at 2-6 (Apr. 2, 2001), available at http://www.spd.

usace.army.mil/cwpm/public/ops/regulatory/adminAppeals/T urner.pdf (up-

holding @ Siftilar determination that ephemeral desert washes are tributar-

ies and relying on a January 19, 2001, legal memorandum issued by the

Corps and EPA which stated that “[SWANCC] did not overrule the hold-

The tracing of sheet flow or rainfall over land or pavement

to sustain a connection is not unique to the desert.” In

Lancaster, New York, the Corps deemed an otherwise iso-

lated wetland a “tributary” to another nearby wetland despite

acknowledging that the only hydrological connection between

the two was infrequent, low velocity sheet flow that exhibited

no discernible channeling. The Corps then included another

wetland because it was “clearly a part of the same eco-

system,” and thus, “adjacent” to the first wetland, despite

having no “discernible outlet for water flow and no evidence

that water ever flows from [it].” The Corps found all of these

wetlands to be “connected” through 6,500 feet of municipal

storm sewer to a creek, and ultimately to Lake Erie.”’

Il. THE GOVERNMENT’S THEORY IMPINGES

ON THE STATES’ TRADITIONAL AUTHOR-

ITY OVER LAND AND WATER USE WITHOUT

A CLEAR CONGRESSIONAL STATEMENT.

As shown in the preceding sections, the Government’s hy-

drological connection theory sweeps into federal control fea-

tures that are “a far cry, indeed, from the ‘navigable waters’

and ‘waters of the United States’ to which the statute by its

terms extends.” SWANCC, 531 U.S. at 173. To interpret the

statute as conferring such broad authority raises serious con-

stitutional questions. Where an agency interprets a statute in

ing or rationale of (Riverside], which upheld the regulation of traditionally

navigable waters, interstate waters, their tributaries, and wetlands adjacent

to each.”).

* GAO Study at 18 (reporting that the San Francisco, Sacramento, and

Los Angeles Districts base jurisdiction on “connect{tions] . . . through

directional sheet flow during storm events”).

7 U.S. Army Corps of Eng’rs, Buffalo Dist., Admin. Appeal Decision,

NEC Transit/William, LLC, File No. 2000-00325(2) at 2-4 (Aug. 30,

2001) available at http://www.ird.usace.army.mil/_kd/Items/actions.cfm?

action=Show&item_id=1729&destination=Showltem.

a manner that “invokes the outer limits of Congress’s power’

or “overrides . . . [the] usual constitutional balance of federal

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

Congress intended that result.” Jd. at 172-74; Gregory v.

Ashcroft, 501 U.S. 452, 460 (1991). The clear statement

rule**® provides a judicial check on Congress’s occasional

inclination to legislate ambiguously so as to avoid the politi-

cal consequences of tough policy choices. See United States

v. Lopez, 514 U.S. 549, 574-79 (1995) (Kennedy, J., concur-

ring).

The SWANCC Court made plain that there is no clear state-

ment from Congress that it intended section 404(a) to reach

features without a significant, inseparable nexus to navigable

waters. 531 U.S. at 174. The Government does not even

attempt to point to a statement of congressional authorization

for its actions here. Therefore, this Court should, as it did in

SWANCC, “read the statute . . . to avoid the significant con-

stitutional and federalism questions raised” by the hydrologi-

cal connection theory. /d.

The clear statement requirement is “heightened” where an

agency interprets a statute in a manner that would “alter{] the

federal-state framework by permitting federal encroachment

upon a traditional state power.” /d. at 173. Transforming

drainage ditches, ephemeral waters, and other remote waters

into “navigable waters” undoubtedly intrudes on the local

regulation of land and water use, and thus, triggers the clear

statement requirement.”?

** The “most important” rule of statutory construction “is the clear

statement rule.” | Lawrence H. Tribe, AMERICAN CONSTITUTIONAL LAW

§ 5-9 at 853 (3d ed. 2000).

? The regulation of land and water use within a State’s borders is a

traditional State function. See Hess v. Port Auth. Trans-Hudson Corp.,

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

Nothing can be more local than the control of drainage,

and, correspondingly, local land use.” United States v.

Deaton provides a telling example. 332 F.3d 698 (4th Cir.

2003), cert. denied 541 U.S. 972 (2004). There, the Fourth

Circuit deferred to the Corps’s determination that a drainage

ditch in Parsonsburg, Maryland, was a federally regulable

“tributary” because it “eventually flowed” through 8 miles of

ditches, culverts, ponds, and dams to navigable waters. The

ditch in question was, in fact, a 6-8 inch deep roadside swale,

approximately two feet wide. It was maintained by the

Wicomico County roads department to collect rainfall runoff

from the road. It fed into other drainage ditches constructed

and maintained by the Beaverdam Public Drainage Associa-

tion (PDA). A PDA is an organization of local landowners

certified by the county under Maryland law to establish and

maintain drainage systems for agricultural production and the

“public benefit.”*' There are mo.> than 100 active PDAs on

the Eastern Shore of Maryland managing the drainage of

more than 180,000 acres of land. The Fourth Circuit’s hold-

ing that the roadside ditch and the PDA ditches with which it

connects are waters of the United States federalizes these

local ditches. This imposition of plenary federal power cer-

tainly intrudes on local governments’ ability to manage local

drainage.

Not only are drainage ditches local, they are everywhere.

The U.S. Department of Transportation requires that any fed-

erally funded primary road be “designed . . . and maintained

to have adequate drainage, . . . cross drains, and ditch relief

drains.” 30 C.F.R. § 816.151(d)(1). State and local govern-

® See generally New Orleans Gaslight Co. v. Drainage Comm'n of

New Orleans, 197 U.S. 453, 460 (1905) (control of drainage is one of the

most important police powers exercised by State and local authorities).

>" Mp. Cope ANN. Art. 25 §§ 52(a), 53 (2001). The Maryland legisla-

ture has declared that “such drainage shall be considered a public benefit

and conducive to the public health, convenience, and welfare.” Jd. § 52(a).

ments impose similar requirements on the roads they fund.

There are more than 3.9 million miles of roads in this coun-

try, which adds up to a lot of ditches and, under the Govern-

ment’s theory, a lot of navigable waters.** Nothing in the

CWA indicates that Congress intended to reach so far.

Under our federal system, Congress may not effect such a

result unless it clearly expresses its intent to alter the tradi-

tional balance between the federal and State governments.

Here, Congress’s intent is expressly to the contrary. Con-

gress preserved the “federal-state balance” by “cho[osing] to

‘recognize, preserve and protect the primary responsibilities _

and rights of States to . . . plan the development and use .. .

of land and water resources’” within their borders. SWANCC,

531 U.S. at 166-67 (quoting 33 U.S.C. § 1251(b)). Just as

__there is “nothing approaching a clear statement from Con-

gress that it intended § 404(a) to reach an abandoned sand

and gravel pit,” there is no clear statement that section 404(a)

reaches nonnavigable ditches, erosional features, or intermit-

tent streams that could “potentially” impact or “eventually

flow” into navigable waters. /d. at 174.

The Government makes various arguments why its inter-

pretation would not intrude upon the States’ authority, all of

which are unavailing. It says that “the only activity requiring

a CWA permit is the discharge of a pollutant .... Other

functions and activities relating to land use remain in the

hands of local authorities.” U.S. Carabell Cert. Opp. at 18;

Brief for the United States in Opposition [for a Petition of

Certiorari], Rapanos v. United States, No. 04-1034, at 24-25

(filed Apr. 2005) (U.S. Rapanos Cert. Opp.).*? This ignores

2 See U.S. Dep’t of Transp., Fed. Highway Admin., Highway Statistics

2003 § V, Roadway Extent, Characteristics and Performance, Table HM-

10, available at http://www.fhwa.dot.gov/policy/ohim/hs03/ hm10.htm

(last visited Nov. 28, 2005).

> The Government also argues that States can retain their power by

seeking delegation of the CWA permitting program. Delegation does not

the fact that many activities inherent to land development

constitute “discharges of pollutants,” and downplays the con-

sequences of being a “water of the United States.” For such

waters, among other things, water quality standards must be

established and enforced, uses designated, and “total maxi-

mum daily loads” assigned. See 33 U.S.C. §§ 1313(a)-(d); 40

C.F.R. § 131.3(i). And when work needs to be done, for

example, to maintain the carrying capacity of a roadside

ditch, a permit must be obtained. Obtaining a CWA permit is

costly and time consuming,” and the permit evaluation proc-

ess draws the Corps into subjects far beyond the discharge of

fill material that triggers the permit requirement.

For example, in Save Our Sonoran, Inc. v. Flowers, 408

F.3d 1113 (9th Cir. 2005), the applicant sought a permit to

impact 7.5 acres of ephemeral desert washes on a 608-acre

development site near Phoenix, Arizona. Applicable regula-

tions as interpreted by the Ninth Circuit, however, required

the Corps to treat the entire 608-acre private project as a “fed-

eral action,” thus triggering a host of other federal require-

ments. Similarly, the Corps’s “public interest review”

regulations draw it into a police-power-like assessment of “the

needs and welfare of the people.” 33 C.F.R. § 320.4(a)(1).

preserve the States’ authority to control land and water use. It merely

allows States to administer a federal program. Carabell is a perfect

illustration of how little autonomy a State has when implementing a

federal program. There, Michigan granted a permit, and EPA overruled

the State. Finally, the Government argues there is no intrusion on State

power when the Government is acting permissibly. This, however, is

exactly the issue now before the Court.

** See David L. Sunding & David Zilberman, The Economics of Envi-

ronmental Regulation by Licensing: An Assessment of Recent Changes to

the Wetland Permitting Process, 42 Nat. Resources J. 59, 74-76 {Winter

2002) (finding that an average individual section 404 permit application

costs $271,596 to prepare (not counting costs of mitigation, design

changes, and carrying capital), and that it takes an average of 788 days to

complete the permitting process).

If, based on considerations of “aesthetics,” “land use,” and no

less than seventeen other factors, the Corps determines that a

project would be “contrary to the public interest,” it will deny

the permit application.*° The Corps’s Jacksonville District

recently relied on the public interest review to deny an appli-

cation to fill 30 acres of agricultural ditches, which had the

effect of halting a 4,573 acre development project. The Corps

found that the project was “contrary to the overall public

interest at this time” because it was “inconsistent” with plans

for a project that the Corps itself was hoping to undertake,

although the future Corps project had yet to be authorized by

Congress.*° This is a far, far cry from the water quality goals

of the CWA.

IV.THE GOVERNMENT’S THEORY IS INCON-

SISTENT WITH PAST AND PRESENT REGU-

LATORY TREATMENT OF DITCHES, IN-

TERMITTENT STREAMS, AND EPHEMERAL

DRAINAGES AND WARRANTS NO DEFER-

ENCE.

The Government’s boldest argument in support of its bound-

less “any connection” theory is that Riverside authorizes its

treatment of ditches and intermittent streams as waters of the

United States because Riverside upheld jurisdiction over “all

wetlands adjacent to other bodies of water over which the

Corps has jurisdiction.” U.S. Rapanos Cert. Opp. at 16 (cit-

ing Riverside, 474 U.S. at 135). Without support, this argu-

ment converts the Court’s general contextual statement into a

specific holding. The fundamental issue in Riverside was

** This, notwithstanding this Court’s observation in Lopez that the

Constitution “withhold[s) from Congress a plenary police power.” 514

U.S. at 566. ,

Application Denial, available at http://www.saj.usace.army.mil/pao/hot

Topics/hot_topics_harmony.htm (last visited Nov. 26, 2005).

whether the Corps could treat “adjacent wetlands” as waters

of the United States. The Court did not address which “other

bodies of water” are waters of the United States, and it cer-

tainly did not consider, let alone hold, that distant ditches and

intermittent streams are “navigable waters.”

Moreover, the linchpin of the Court’s decision in Riverside

is starkly absent here. There, the Court deferred to the

Corps’s years-long rulemaking establishing the importance of

adjacent wetlands to the water quality of navigable waters,

and extensively documented Congress’s consideration of, and

express acquiescence to, the regulation of adjacent wetlands

as waters of the United States during the debates on the 1977

CWA Amendments. Here, there is no rulemaking or legisla-

tive history to support the jurisdiction that the Government

now claims. Indeed, had Congress in 1977, or this Court in

1985, considered the question of whether wetlands adjacent

to ditches or drains are waters of the United States, the

decisions would have gone the other way. At both times,

ditches were expressly excluded from jurisdiction, intermit-

tent streams were not regarded as tributaries, and ephemeral

drainages were not even a glint in the administrative eye.

The Corps’s first regulations implementing the CWA pur-

ported to regulate to the broadest constitutional extent of

“navigable waters.” 39 Fed. Reg. 12,115 (Apr. 3, 1974). The

Corps’s definition of “navigable waters” invoked the com-

mon understanding of that term as developed over more than

a century of jurisprudence.”” In 1975, responding to an unfa-

vorable district court decision, the Corps adopted interim

regulations expanding its jurisdiction beyond the broadest

constitutional extent of navigable waters to reach the maxi-

mum extent of the Commerce Clause. Natural Res. Def.

Council v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).

7 In SWANCC, this Court stated that the Government “put forward no

persuasive evidence that the [Corps’s 1974 regulations] mistook Con-

gress’ intent.” 531 U.S. at 168.

The 1975 regulations asserted jurisdiction over navigable

waters and their non-navigable tributaries up to their head-

waters—a cutoff point that excluded the upper reaches of

waterways and other waters “hydrologically connected” to

them. See 40 Fed. Reg. 31,320, 31,324-25 (July 25, 1975).**

In 1977, the Corps adopted final regulations asserting juris-

diction over navigable waters, nonnavigable tributaries, and

certain waters beyond the tributary system if their degradation

could affect interstate commerce. 42 Fed. Reg. 37,122,

37,144 (July 19, 1977).

With respect to the linear features at issue in this case, the

Corps’s 1975 regulations stated that “[d]rainage and irrigation

ditches have been excluded” from the definition of jurisdic-

tional waters. 40 Fed. Reg. at 31,321. The Corps’s 1977

regulations similarly disavowed jurisdiction over ditches,

stating that

nontidal drainage and irrigation ditches that feed into

navigable waters will not be considered “waters of the

United States” under this definition. To the extent that

these activities cause water quality problems, they will

be handled under other programs of the [CWA] includ-

ing Section 208 and 402.”

A footnote to the 1977 regulations explained that the new

definition “incorporates al/ other waters of the United States

8 The “headwaters” is the region upstream of the point on the river or

stream at which the average annual flow is less than five cubic feet per

second. 40 Fed. Reg. at 31,325.

*® The Corps’s statement that ditches would be handled under other

CWA programs, such as section 402, is consistent with the language of

the CWA characterizing ditches as point sources. “Point source” means

“any discernible, confined and discrete conveyance, including but not lim-

ited to any... ditch... .” 33 U.S.C. § 1362(14). Because the CWA

regulates the discharge of pollutants “to navigable waters from any point

source,” if a given a ditch is a point source, it cannot also be a “navigable

water.” Jd. § 1362(12) (emphasis added).

that could be regulated under the Federal government's Con-

stitutional powers to regulate and protect interstate commerce

..«” 42 Fed. Reg. at 37,144 n.2 (emphasis added). That all-

encompassing definition did not include ditches or ephemeral

drainages. It did include “tributaries,” but did not regard

intermittent streams as tributaries, or even as part of the tribu-

tary system. Instead, intermittent streams were grouped with

other waters that were “not part of the tributary system” and

were only considered waters of the United States upon a

showing that their “degradation or destruction could affect

interstate commerce.” 33 C.F.R. §§ 323(a)(3), (a)(S) (1978).

There is little evidence that Congress was even aware of

the Corps’s 1977 regulations, which came out only days be-

fore the passage of the 1977 CWA Amendments. Thus, the

1975 regulations were in effect the last time Congress consid-

ered CWA jurisdiction in 1977. Those regulations explicitly

excluded ditches from jurisdiction, claimed jurisdiction over

tributaries only to the headwaters, and made no claim or

record whatsoever for jurisdiction over dry land features such

as ephemeral drainages. Moreover, in 1977, the Corps

continued to exclude ditches and only regulated intermittent

streams if they could affect interstate commerce.

The Corps’s treatment of those waters in 1975 and 1977

means that the Government cannot now argue that Congress,

when it enacted the 1977 CWA amendments, “acquiesced” to

the Corps’s current treatment of “ditches” as tributaries,“

“ The Government may argue that the section 404(f) exemptions that

mention ditches evidence an intent to treat ditches as waters of the United

States. This argument was made and rejected in SWANCC. Congress's

decision in section 404(f) to “exempt certain types of these discharges

does not affect, much less address, the definition of ‘navigable waters.”

SWANCC, 531 U.S. at 171 0.7; see also, Nat'l Mining Ass'n v. U.S. Army

Corps of Eng'rs, 145 F.3d 1399, 1405 (D.C. Cir. 1998) (declining to

“draw any inference [from section 404(f)] other than that Congress em-

phatically did not want the law to impede these bucolic pursuits.””)

nor can it argue that Riverside upheld the regulation of

ditches and intermittent streams as tributaries. *'

Furthermore, nothing in tse Corps’s current regulatory

definition of waters of the United States, adopted in 1986,

suggests that “hydrological connection” can be the basis

for jurisdiction. The regulations include tributaries, but do

not define the term. Nor do they mention “hydrological

connection.” 33 C.F.R. § 328.3(a)(5). They excluie citches,”

treat intermittent streams separately from tributaries .as waters

regulable if they “could affect interstate . . . commerce.”), id.

§ 328.3(a)(3),” and do not mention ephemeral streams at all.

“' The Government may also try to point to section 404(g)1) for con-

gressional support, but, as this Court found in both SWANCC and River-

side, section “404(g)(1) does not conclusively determine the construction

to be placed on the use of the term ‘waters’ elsewhere in the Act (par-

ticularly in § 502(7), which contains the relevant definition of ‘navigable

waters’).” SWANCC, 53i U.S. at 171 (citing Riverside at 138 n.11).

Moreover, the language in section 404(g)1) hardly provides a clear state-

ment of congressional intent to regulate all waters with a connection to

navigable waters. Indeed, at the time section 404(g)(1) was enacted in

1977, jurisdiction in tributaries ended at the headwaters.

“ See 5\ Fed. Reg. 41,206, 41,217 (Nov. 13, 1986) (stating that “we

generally do not consider [drainage and irmgation ditches excavated on

dry land] to be Waters of the United States,” but claiming the authority to

identify certain ditches case-by-case as waters of the United States).

“ The “could affect” commerce rationale has been questionable as a

basis for CWA jurisdiction since Lopez, 514 U.S. at 559 (effects on inter-

State commerce must be “substantial”). SWANCC’'s holding that the CWA

is grounded in the channels power confirms that the rationale is no longer

viable. 531 U.S. at 168 n3. And, the Government has acknowledged as

much. See 68 Fed. Reg. 1991, 1996 (Jan. 15, 2003) (“in light of SWANCC,

it is uncertain whether there remains any basis for jurisdiction under the

_ other rationales of § 328.3(a)(3)(i)-(iii) over [the] isolated, non-navigable,

intrastate waters” that are mentioned in that section); U.S. Carabell Cert.

Opp. at 16 (clauming authonty over distant ditches and intermittent streams

now stems from the channels power).

Finding no congressional support for its actions, the Gov-

ernment will most likely argue that it is entitled to deference

in interpreting the statute and its regulations. Where a statute

is “clear”’—as is the CWA’s grounding in navigability—

contrary agency interpretations do not warrant deference. See

SWANCC, 531 U.S. at 172 (“We find § 404(a) to be clear”).

Where a statute is ambiguous, non-arbitrary agency positions

that are carefully considered and adopted through the rule-

making process merit deference. Less formal agency posi-

tions receive deference to the extent they have the “power to

persuade.” Christensen v. Harris County, 529 U.S. 576, 586-

87 (2000). Ad hoc litigating positions are not entitled to

deference. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

212-13 (1988). The Corps’s post-SWANCC hydrological

connection theory is not the product of rulemaking, and it

lacks any evidence of careful regulatory consideration. In-

deed, the agencies themselves recognized the need for a rule-

making after SWANCC and began the process of instituting a

“review [of] the regulations to ensure that they are consistent

with the SWANCC decision.” But then abandoned it. In

sum, the Government’s current position, manufactured in re-

cent litigation, is inconsistent with its earlier pronouncements

navigable features, and finds no support in the current

regulations. Accordingly, the Government is not owed any

deference by this Court. /d.; United States v. Mead Corp.,

$33 U.S. 218, 228 (2001).

“ See 68 Fed. Reg. at 1993.

Vv. THE GOVERNMENT HAS AMPLE AUTHOR-

ITY TO REGULATE POLLUTING ACTIVITIES

THAT WILL IMPACT NAVIGABLE WATERS

WITHOUT DECLARING EVERY DITCH AND

EPHEMERAL DRAINAGE A “WATER OF THE

UNITED STATES.”

Finally, the draconian and intrusive effect of the broad

scope of CWA jurisdiction advanced by the Government, and

approved by the court below, need not be tolerated in order to

~ achieve the goals of the Act. The Government argues that it

must treat all waters with any hydrological connection to

navigable waters as “waters of the United States” because

there is a “risk” that pollutants discharged to upgradient

ditches will migrate downstream and ultimately degrade a

navigable water.’ Citing a statement in the legislative his-

tory that “‘[w]ater moves in hydrologic cycles and it is essen-

tial that discharge of pollutants be controlled at the

source," the Government claims that to “control the

discharge of pollutants at the source,” it must treat the

“source”—in these cases, ditches and intermittent streams—

as “waters of the United States.”

This is wrong on the law and the facts. The Act provides

ample means to regulate upgradient polluting activities that

will impact navigable waters. Indeed, the 1972 CWA Amend-

ments effected a sea change in the law precisely to provide

“ See U.S. Rapanos Cert. Opp. at 13. The CWA does not regulate

risks to “navigable waters”; it regulates actual discharges. Without an

actual discharge, there is no jurisdiction. Waterkeeper Alliance, Inc. v.

U.S. EPA, 999 F.3d 486, 505 (2d Cir. 2005).

“ See, e.g., Brief of the United States, Appellee at 22-23, United States

v. Gerke Excavating, Inc., 412 F.3d 804 (7th Cir. 2005) (No. 04-3941)

(quoting S. Rev. No. 92-414 at 77 (1972) reprinted in 1972 U.S.C.C._AN.

3668, 3742), see also U.S. Rapanos Cert. Opp. at 10.

that authority.*’ The prior law had focused on establishing

water quality standards for navigable waters. The 1972 Act

shifted to preventing the discharge of pollutants in the first ©

place. Thus, now the Act prohibits the “discharge of any

pollutant,” which is defined as “any addition of any pollutant

to navigable waters from any point source” without a permit.

33 U.S.C. §§ 131 1a), 1362(12). The Act has two permitting

programs to regulate the discharge of pollutants. /d. §§ 1342,

1344. Section 402 (the National Pollutant Discharge Elimi-

nation System (NPDES)) regulates tiie disposal of waste

materials in soluble effluent, typically from industrial and

municipal sources.“* Section 404 regulates the placement of

dredged and fill material, and is generally associated with

construction activities. Section 402 effluent wastes are gener-

ally disposed through “point sources,” such as pipes and/or

ditches, and flow to a navigable water. Section 404 fill, by

contrast, generally does not migrate anywhere, but instead

“fills” the area into which it is placed, usually creating a

stable foundation for construction activities.

These two regulatory programs, taken together, establish

broad federal power to regulate pollutant discharging activi-

ties at their source. EPA has long claimed, and courts have

allowed, broad authority to regulate the discharging activity,

wherever it occurs, when the discharged pollutants migrate to

navigable waters. Thus, the activity is regulated without

calling the location at which the activity takes place, or any

intermediate conveyance, a water of the United States.

An early EPA General Counsel Opinion explains EPA’s

view that “the basic triggering mechanism [for the Act’s per-

" EPA v. Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200, 203

(1976) (discussing the drastic change in method of CWA regulation from

water quality standards to point source control).

* See id. at 204; Nat'l Wildlife Fed'n v. Gorsuch, 530 F. Supp. 1291,

1304 (D.D.C. 1982) (NPDES program is the “heart” of the Act).

mitting requirements] . . . is the release of pollutants from

some form of conveyance or container into navigable wa-

ters.””” Once triggered, the permit requirements apply di-

rectly to the pollutant’s source, but the source does not be-

come a water of the United States.’ EPA confirmed this

interpretation by defining “discharge of pollutants” to include

a release to a conveyance that eventually reaches navigable

waters. EPA explained that

a discharge to a pipe is not, in and of itself, a discharge

of pollutants subject to the permit program. A discharge

to a pipe must ultimately reach navigable waters in

order to fall within the purview of the NPDES

requirements.’

By the same token, EPA treats pollutant discharges to mu-

nicipal separate storm sewer systems (MS4s) as discharges

through MS4s to navigable waters. It does not regard the

sewer system itself as a water of the United States. Thus, the

government is able to regulate the polluting activity without

” in re Friendswood Dev. Co., 1976 WL 25237, at *2 (EPA Gen.

Counsel Op. June 11, 1976).

therefore be directly responsible for their proper disposition.”). Of course,

an episodic link to navigable waters via the “discharge of a pollutant”

does not mean a nonnavigable water has an inseparable and significant

relationship with navigable waters, and thus, becomes a water of the

United States. A nonnavigable water may become a water of the United

States only if the waterbody itself has a significant and regular relation-

ship with a navigable water. See supra pp. 4-8.

*! 44 Fed. Reg. 32,854, 32,857 (June 7, 1979) (emphasis added). “This

definition includes additions of pollutants into waters of the United States

person(s] which do not lead to a treatment works; and discharges through

. .. other conveyances, leading into privately owned treatment works.” 40

CF.R. § 122.2.

transforming the /ocation of that activity into a water of the

United States.”

Case law supports EPA’s long-held position that it has am-

ple authority to regulate pollutants at their source without

calling intervening conveyances waters of the United States.

See, e.g., United States v. Ortiz, 2005 U.S. Arp. LEXIS

23559 (10th Cir. Nov. 1, 2005) (affirming a conviction for

flushing chemical waste down a toilet that led to a sewer

system that discharged into the Colorado River without

calling the sewer system or the plumbing “waters of the

United States”); Concerned Area Residents for the Env’t v.

Southview Farm, 34 F.3d 114 (2d Cir. 1994) (requiring an

NPDES permit for discharges of liquid manure that traveled

over a swale, through a pipe, and in a ditch, and ultimately to

waters of the United States with-out calling the ground, pipe,

or ditch “waters of the United States”).

The Fifth Circuit’s decision in Needham illustrates the

point. There, oil was discharged from defendant’s well into

an upland drainage ditch and migrated through two nonnavi-

gable bayous to a navigable water. The court held the

defendant liable because the oil reached a nonnavigable bayou

that was “adjacent to an open body of navigable water,

namely the Company Canal.” 354 F.3d at 346. Notably, the

court explicitly rejected the Government’s “any hydrological

connection” argument, and refused to treat the ditch and the

intervening bayous as waters of the United States. /d. at 345.

But the Government was nonetheless able to reach the dis-

charge of pollutants at the source.

2 40 C.F.R. § 122.26(a)4); 55 Fed. Reg. 47,990, 47,997 (Nov. 16,

1990). The Act and EPA similarly regulate discharges to publicly owned

treatment works (POTWs) as pass-through discharges without calling

POTWs waters of the United States. See United States v. Hartsell, 127

F.3d 343, 348 (4th Cir. 1997) (finding liability for discharge through sewer

system without holding that sewer system is waters of the United States);

40 C.F.R. pt. 403.

The Act, case law, and EPA’s previous positions belie the

Government’s present claim that it must treat ditches as wa-

ters of the United States because “pollutant discharges into

wetlands and their adjacent tributaries will ultimately impair

the quality of traditional navigable waters.” U.S. Rapanos

Cert. Opp. at 13. This claim rings particularly hollow in the

context of a section 404 activity. Fill material does not mi-

grate.” The Government has ample authority to regulate

polluting activities without federalizing the locations where

the activities occur, or any intermediate conveyances between

the activity and the “navigable waters.”

CONCLUSION

For all of the foregoing reasons, the decisions of the Court

of Appeals in Rapanos and Carabell should be reversed.

Respectfully submitted,

VIRGINIA S, ALBRECHT

Counsel of Record

DEIDRE G. DUNCAN

DAVID J. DEPipPO

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

December 2, 2005 Counsel for Amici Curiae

* Robert J. Pierce, Wetland Science Applications, Inc., Technical

Principles Related to Establishing the Limits of Jurisdiction for Section

404 of the Clean Water Act, 36, 40 (April 2003), Docket No. EPA-

HQ-OW-2002-0050-1835, available at http://www.regulations.gov/fdms

public-rel 1 1/component/main.

Of Counsel:

JOHN R. STOLLER

FOUNDATION FOR ENVIRONMENTAL

AND ECONOMIC PROGRESS

1900 K Street, N.W.

Washington, D.C. 20006

(202) 778-2229

RALPH W. HOLMEN

NATIONAL ASSOCIATION OF REALTORS®

430 N. Michigan Avenue

Chicago, IL 60611-4087

(312) 329-8200

MARK G. WEISSHAAR

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

Counsel for Utility Water Act Group

ROBIN S. CONRAD

AMAR D. SARWAL

NATIONAL CHAMBER LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20036

(202) 463-5337

APPENDIX

GIBSON & SKORDAL

Wetland Consultants

2277 Fair Oaks Blvd., Suite 395

Sacramento, California 95825

(916) 569-1830

Fax: (916) 569-1835

August 17, 2000

Mr. Justin Cutler

Army Corps of Engineers

Regulatory Branch

1325 J Street

Sacramento, California 95814

Subject: Revised Wetland Delineation Report - Franklin

Meadows, Sacramento County, California

Dear Mr. Cutler:

This letter presents the results of a jurisdictional delineation

and subsequent revisions for the approximately 261-acre

study area located immediately east of Franklin Boulevard

and “% mile south of Elk Grove Boulevard in Section 4,

Township 6 North, and Range 5 East of Sacramento County,

California (Latitude 38° 23’ West, Longitude 121° 26’ North).

The attached Figure | is a vicinity map.

Field studies were conducted on October 27, 1999 and

August 15, 2000 for the purpose of identifying all potential

jurisdictional waters including wetlands within the study area.

Wetlands were mapped in the field onto a 1”=200" topo-

graphical map. Area of jurisdictional wetlands was deter-

min«. by field measurements.

The “Corps of Engineers Wetlands Delineation Manual”!

was used as the standard for determining whether specific

areas are wetlands subject to regulation under Section 404 of

the Clean Water Act. Corps of Engineers’ regulations (33

CFR 328) were used to determine the presence of waters of

the United States other than wetlands. The “National List of

Plant Species That Occur In Wetlands: California

(Region 0)”* was used to determine the wetland indicator

status of observed plant species. The “Soil Survey of

Sacramento County, California”’ was used to evaluate soil

mapping for the study area.

The study area consists of leveled, irrigated pasture land

which has been used for dairy farming and crop production in

the past. A few abandoned barns, out-structures, and

excavated dairy waste sumps still remain from the old dairy

operation. Numerous irrigation ditches bisect the study area.

Mapped soils types include San Joaquin silt loam, leveled, 0

to 1 percent slopes; and San Joaquin-Galt complex, leveled, 0

to 1 percent slopes. A majority of the study area is mapped as

San Joaquin-Galt complex which are generally described as

moderately well drained soils that have been cut and leveled

and/or filled. The mapped soils are not considered to be

hydric but they do have hydric inclusions in basins and

depressions.

Habitat in the study area consists almost entirely of open annual

grassland characterized by soft chess (Bromus mollis), tarweed

' Environmental Laboratory. 1987. Corps of Engineers Wetlands De-

lineation Manual. Technical Report Y -87-1, U.S. Army Engineer Water-

ways Experiment Station. Vicksburg, Miss.

? Reed, P.B. 1988. National List of Plant Species That Occur in

Wetlands: California (Region 0). Biological report 88(26.10). May

1988. National Ecology Research Center, National Wetlands Inventory,

U.S. Fish & Wildlife Service, St. Petersburg, Florida.

> USDA, Soil Conservation Service. 1991. Soil Survey of Sacramento

County, California.

(Holocarpha virgata), yellow star-thistle (Centaurea sostitialis),

and Mediterranean rye (Hordeum hystrix). Other common

species include perennial rye (Lolium perenne), prickly lettuce

(Lactuca serriola), English plantain (Plantago lanceolata), curly

dock (Rumex crispus), and chicory (Cichorium intybus).

Attached is a partial list of plant species observed in the study

area including their wetland indicator status.

Jurisdictional waters identified in the study area include

approximately 0.09 acre of seasonal wetlands including SW1

(900 sq. ft.), SW2 (840 sq. ft), SW3 (850 sq. ft.) and SW4

(1,250 sq. ft.). Also, as identified by the Corps of Engineers

during field verification, two abandoned dairy waste sumps

totaling 0.98 acre have been determined to be jurisdictional

waters. The attached delineation map shows the location

and size of jurisdictional wetlands. Also attached are data

sheets for representative data points taken during the field

investigation.

All of the seasonal wetlands occur within shallow depressions

located at or adjacent to the toe of road berms which flank

irrigation ditches. Typically these areas pond surface water

for long duration during the winter and early spring, but they

tend to dry up by late spring in most years. Wetland

hydrology indicators observed in the field include location

within a defined depression overlaying tight clay soils, algae

matting, oxidized root channels on live roots, and deep hoof

marks left by cattle.

Typical soils in the seasonal wetlands are very dark grayish

brown (10YR 3/2) clay loams with mottles at depths of | to 6

inches. Some of the wetland areas lacked obvious hydric soil

color indicators by they showed clear evidence of aquic

moisture regimes. In these areas, hydric soils were assumed

present based on the presence of an aquic moisture regime.

Vegetation in the seasonal wetlands is dominated by annual

rabbit-foot grass (Polypogon monspeliensis) and Mediter-

ranean barley (Hordeum hystrix). Common associates in-

clude mannagrass (Glyceria sp.), slender popcorn flower

(Plagiobothyrs stipitatus), perennial rye, curly dock, clustered

dock (Rumex conglomeratus), and postrate knotweed

(Polygonum aviculare).

The two abandoned dairy sumps (0.98 acre) contain open

water and wetland vegetation. Approximately 90 percent of

Sl was ponded in mid-August with a wetland fringe

dominated by swamp timothy (Crypsis schoenoides), barn-

yard grass (Echinochloa crusgalli), and knotgrass (Paspalum

distichum). Approximately 30 percent of S2 was ponded in

mid-August. Wetland vegetation is dominated by swamp |

timothy and smartweed (Polygonum sp.). The adjacent up-

land is dominated by soft chess and yellow star thistle.

A number of irrigation ditches associated with past farming

and dairy operations occur within the study area. The ditches

were initially constructed in uplands for purpose of irrigation,

and as such, they are not jurisdictional waters subject to

regulation by the Corps.

In summary, we identified a total of 1.07 acres of juris-

dictional waters including four seasonal wetlands and two

abandoned dairy sumps as shown on the attached delineation

map. If you have any questions concerning this report or ~

need additional information, please contact me at (916)

569-1830.

Sincerely,

James C. Gibson

Principal

JCG:bjs

w/Attachments

cc: Mr. Craig Naglar

Dunmore Homes

2150 Professional Drive, Suite 150

Roseville, California 95661

DEPARTMENT OF THE ARMY

U.S. ARMY ENGINEER DISTRICT, SACRAMENTO

CORPS OF ENGINEERS

1325 J STREET

SACRAMENTO, CALIFORNIA 95814-2922

August 24, 2000

Regulatory Branch (199900653)

James Gibson

Gibson & Skordal

2277 Fair Oaks Blvd., Suite 395

Sacramento, California 95825-5500

Dear Mr. Gibson:

This letter concerns the delineation of waters of the United

States, including wetlands, you have provided on behalf of

Dunmore Homes for the Franklin Meadows project. This

property is located in Section 4, Township 6 North, Range 5

East, Sacramento County, California.

I have reviewed and verified your August 17, 2000, Revised

Wetland Delineation Report—Franklin Meadows, Sacra-

mento County, California document and drawing showing

approximately 1.07 acres of waters of the United States,

including wetlands, within the surveyed area. Our juris-

diction in this area is under Section 404 of the Clean Water

Act based on the definition of waters of the United States, as

defined in 33 CFR 328. A Department of the Army permit is

required prior to discharging dredged or fill materials into

waters of the United States.. Accordingly, a permit will be ©

required prior to filling any of the waters present on the

property. The type of permit required will depend on the type

and amount of waters which would be lost or adversely

modified by fill activities.

This verification is valid for five years from the date of this

letter unless new information warrants revision of the deter-

mination before the expiration date. Please refer to iden-

tification 199900653 in any correspondence concerning this

project. If you have any questions, write to Mr. Justin Cutler, -

Room 1480 at the letterhead address, or telephone (916) 557-

5258.

Sincerely,

Justin Cutler

Project Manager, Delta Office

Enclosure

Copies Furnished (w/o enclosures)

Craig Nagler, Dunmore Homes, 2150 Professional Drive,

Suite 150, Roseville, California 95661 -3760

DEPARTMENT OF THE ARMY

U.S. ARMY ENGINEER DISTRICT, SACRAMENTO

CORPS OF ENGINEERS

1325 J STREET

SACRAMENTO, CALIFORNIA 95814-2922

August 13, 2001

Regulatory Branch (199900653)

James Gibson

Gibson & Skordal

2277 Fair Oaks Blvd., Suite 395

Sacramento, California 95825-5500

Dear Mr. Gibson:

This letter concerns your request, submitted on behalf of

Dunmore Homes, to review the verified August 17, 2000,

wetland delineation for the Franklin Meadows property. This

property is located in Section 4, Township 6 North, Range 5

East, in Sacramento County, California.

As a result of your request and because of recent court

decisions, we conducted a through review of the jurisdictional

issues for the subject property. As you are aware, ditches

excavated in uplands are usually not considered waters of the

United States. However, drainage ditches which were con-

structed in re-routed or channelized naturally occurring

tributary streams generally are waters of the United States,

even if they were excavated in upland areas or prior con-

verted cropland. Among other documentation, including

information you provided, we reviewed historical aerial

photographs and topographical maps of the property. This

information indicates progressive re-routing and channel-

ization of tributary waters on the property. As such, we have

determined that a portion of the existing drainage ditch is

considered a waters of the United States, and tributary to

Stone Lake (See enclosed map).

Furthermore, we have reviewed your assertion that the two

ponds, identified as S$] and S2 in your August 17, 2000,

Request for Verification of Revised Delineation - Franklin

Meadows Project, Sacramento County, California, are

isolated and not subject to jurisdiction. Based on the

information, we cannot concur with this assertion. The

subject ponds are abandoned, meet all three wetland criteria,

and are adjacent to waters of the United States. Therefore,

the ponds are considered waters of the United States.

In light of the above determinations, our August 24, 2000,

wetland verification letter for this property is no longer valid.

A revised wetland delineation map, which includes a portion

of the drainage ditch and wetlands subject to our jurisdiction

should be submitted to this office for final verification.

We appreciate your cooperation in this matter. Please refer to

identification number 199900653 in any correspondence

concerning this project. If you have any questions, please

write Mr. Justin Cutler, Room 1480 at the letterhead address,

e-mail: jcutler@spk.usace.army.mil, or telephone (916) 557-

5258.

Sincerely,

Michael S. Jewell

Chief, California/Nevada Section

Enclosure

Copies Furnished w/Enclosure:

Craig Nagler, Dunmore Homes, 2150 Professional Drive,

Suite 150, Roseville, California 95661-3760

Kent McDermitt, The McDermitt Co., 735 Sunrise Ave.,

Suite 155, Roseville, California 95661-4532

CESPK-CO-R 13 Aug 2001

MEMORANDUM FOR RECORD

SUBJECT: Jurisdictional Determination for Franklin Mea-

dows Property (Regulatory Branch Number 199900653)

1. A request to review the subject property’s verified August

17, 2000, Revised Wetland Delineation Report - Franklin

Meadows, Sacramento County, California, was received by

the applicant’s agent on March 22, 2001. The applicant’s

agent specifically requested that we review the jurisdictional

status of two seasonal wetlands identified as SW1 and SW2

in the above mentioned delineation document. On July 12,

2001, the agent requested we withhold making any decisions

until we had been provided additional information. The

following information is a summary of the findings and

conclusions.

2. Historical photographs, topographical maps, and other

documentation for the area were reviewed. In particular the

following referenced data were used to support our

determination: ;

a. February 18, 2000, aerial

b. May 22, 1989, aerial

c. March 24, 1973, aerial

d. August 17, 1937, aerial

e. 1909 U.S. Geological Survey Topographic map.

3. Pursuant to the January 17, 1991, Questions and Answers

Regarding RGL 90-7, “. . . drainage ditches which were

constructed in re-routed or channelized naturally occurring

tributary streams generally are waters of the U.S. even if they

were excavated in upland areas or prior converted cropland.”

Interpretation of reference (d) and (e) indicate the presence of

a tributary to Stone Lake in the early 1900’s, which crossed

the property. The references listed indicate the progressive

re-routing and channelization of previously existing natural

10a

tributaries. Reference (a) shows sufficient drainage of water

from the property through the existing culvert under Franklin

Bivd. and into the natural tributary east of Franklin Blvd.,

which is a tributary to Stone Lake. Based on this infor-

mation, we have determined that a portion of the ditch is

considered a tributary waters of the United States. The

beginning point of this tributary has been drawn by extrap-

olating reference (e)’s 20 foot contour line to a point on the

existing drainage. We believe this is a reasonable point at

which naturally occurring tributary waters existed (See

attached map).

4. As such, the two seasonal wetlands in question are con-

sidered wetlands, which meet all three wetland criteria, and

area adjacent to waters of the United States. Furthermore, a

hydrologic analysis provided in the agent’s June 26, 2001,

letter specifically describes these seasonal wetlands as

overflowing during a 10-year annual rainfall scenario.

US ARMY CORPS

OF ENGINEERS

Jacksonville District

SWANCC Update and Aftermath

John R. Hall

Chief, Regulatory Division

12a

Jurisdictional D —

@ Corps is spending more time looking for

> Tributary connections

> Adjacency of wetlands

> Evidence of navigable use or potential navigable

use of the open water areas

® Done by all offices spread across entire State.

> HQ promises guidance is coming

> Difficult ones reviewed by Jacksonville Office.

13a

Practicable application: follow the drop of water.

Key Terms.

> Contiguous: Those wetlands which are physically

connected to navigable waters

> Adjacent: Those wetlands which are near

tributaries to navigable waters but are not

physically connected.

> Isolated: Those wetlands whereby the waters

could not reach navigable waters via surface flow

or are not in close physical proximity to other

waters of the United States.

14a

DEPARTMENT OF THE ARMY

Jacksonville District Corps of Engineers

P.O. Box 4970

Jacksonville, Florida 32232-0019

Jacksonville District

Approach on Identifying Adjacent Wetlands

and Isolated Waters

July 11, 2003

This paper consolidates and restates the longstanding

approach of the Jacksonville District on identifying adjacent

wetlands and isolated waters under the Corps Clean Water

Act Regulatory Program. Although the District has generally

provided this guidance informally to staff in the past, because

of the current size of the District and the scrutiny on the

Corps determinations of waters of the US after the SWANCC

Supreme Court Decision, it is necessary to provide a written ~

statement of the District’s longstanding approach. This paper

does not establish new policy guidance on waters of the US.

The Supreme Court’s decision in the SWANCC cases raised

several issues that will be interpreted by Corps of Engineers

rulemaking with EPA. In the interim, Districts have been

directed to use the approach that they did prior to the

“migratory bird rule” to make determinations of maou’

systems, adjacent wetlands and isolated waters.

Adjacent Wetlands: Under the Corps Regulation, the term

adjacent wetlands means “bordering, contiguous, or neigh-

boring. Wetlands separated from other waters of the United

States by man-made dikes or barriers, natural river berms,

beach dunes, and the like are “adjacent” wetlands.

(33CFR328.3 (c)). This District has viewed adjacent wet-

lands to have two components, a physical component and a

hydrologic connection component. The Corps definition talks

in terms of “narrow” non-water of the US features, such as

river berms, man made barriers and the like.

15a

As a rule of thumb, if a wetland is within 200 feet of open

waters (defined in this context and used in this document as

any flowing or standing surface water, even though the water

may not be present for the entire year) of another water of the

US (wetlands can not be adjacent to other wetlands, such as

wetlands that are contigous to open waters that are a trib-

utary) then the wetland area is considered adjacent to that

open water of another water of the US.

As provided in Corps regulations, wetlands cannot be

adjacent to the other wetlands, they must be adjacent to open

waters of another water of the US. Open waters clearly

include areas below the OHWM of any open water area such

as a lake, pond or stream. Most “sloughs” and other head-

water systems in Florida have “open waters” including very

small channels that have evidence of an OHWM. The water

does not have to be present or flowing year round, just the

extent that an OHWM is established.

Tributary: The concept of tributary is critical to determining

whether an area is a water of the US. If there is any tributary

with open waters, no matter how small, then wetlands may be

“adjacent” to those open waters of the tributary. Any surface

water connection that has a defined OHWM or is part of a

continuum of wetlands, whether natural or man-made, is a

tributary connection. This approach was used prior to the

migratory bird rule” and subsequent to it was clarified and

included in the preambles to the Nationwide permits

reauthorizations (See Corps 2000 preamble to its Nationwide

permits at Federal Register Vol. 65, No. 47, March 9, 2000,

pages 12823 to 121824 and Corps 1991 preamble to its

Nationwide permits at Federal Register Vol. 56, No. 226,

November 2, 1991, pages 59112 to 59113). Under the

District’s traditional approach as clarified in the guidance in

the Corps Nationwide permits preamble, a large portion of the

canals, and drainage ditches in Florida are tributaries, because

they re-route former natural flows that previously occurred

16a

through a slough system, or sheetflow across the landscape,

that canal or ditch has replaced the former water flow and

_ becomes a tributary water of the US. The canal or ditch -

carries water and pollutants from upstream to downstream

areas. Moreover, where a canal or ditch has connected a

formerly isolated wetland and other waters of the US, and the

canal or ditch, has an OHWM or is part of a continuum of

wetlands, then that canal or ditch, as well as the upstream

wetland, becomes a tributary water of the US. Culverts under

roads and other upland features, weirs, drop structures and

other structures do not eliminate the tributary connection,

provided there is some vonveyance of the water from

upstream to downstream, (even through mechanical means

such as pumping for example). Similarly, some tributaries

convey water from upstream to downstream in natural

underground flow-ways such as in karst formations. Where a

substantial amount of the water is determined by the Corps to

flow regularly under normal conditions through such under-

ground areas, the tributary connection is maintained, since

pollutants flow directly from upstream to downstream areas.

Tributaries routed through treatment systems: In some

situations in the Jacksonville District, tributaries have been

routed through waste treatment systems (including storm-

water management ponds). Our position is that although the

waste treatment system itself is not jurisdictional, the

conveyance from upstream to downstream is maintained and

the jurisdictional connection to all of the upstream wetlands

remains intact. Any party wanting to eliminate the tributary

conveyance by filling the treatment pond for example, would

also sever jurisdiction to all waters upstream of the filling.

Those waters upstream of the filling would now be isolated.

Therefore, the entity performing the filling would be required

to either re-route the conveyance through some means such as

a ditch, culvert, pipe, etc., or mitigate for all upstrean: losses

of jurisdictional waters.

17a

Isolated Waters: Wetlands or other waters that are sur-

rounded by uplands and are not either adjacent or tributary as

described above are isolated waters. This includes wetlands

that directly communicate with ground water but do not have

a “substantial” downstream flow to other waters of the US.

Isolated waters that have no connection to interstate com-

merce other than use of the water or wetland by migratory

birds are not waters of the US. The District has in the past

used navigable use of an isolated water as a connection to

interstate commerce, and that interstate commerce connection

is still valid. For example, if a pond, lake, or stream is

physically isolated (no tributary connection to downstream

waters) but has a public boat access, even for small water-

craft, such as canoes or kayaks, that water remains a water of

the US, because of the potential use by interstate travelers.

Public boat ramps and other public boat access are very

strong evidence of navigability on otherwise isolated lakes

and ponds. However, there may be instances where a

dedicated public access point is non-existent, but one or many

“in fact” public access points are able to be utilized. All

around this District, many people launch canoes and small

boats at bridge crossings in state and local DOT RsOW. The

basic assumption here is that one must have some way

to reasonably access the water body without unlawfully

trespassing on privately held property. Trespass on publicly

owned property may still be an unresolved issue but given the

decades old practice of allowing it in this District, it appears

to be a legitimate way of accessing some waters.

-----Original Message-----

From: Isoe, Mitchell A LRC

[mailto;Mitchell A. lsoe@Irc02.usace.army,mil

Sent: Thursday, February 10, 2005 8:57 AM

Subject: Chicago District Regulatory Program Bulletin

U.S. Army Corps of Engineers Chicago District Regulatory

Branch

February 9, 2005

This communication is intended to provide you with current

information on our Regulatory Program.

Jurisdictional Determinations

1. Underground Connections: Consistent with federal case

law, the District wishes to clarify that underground con-

nections can serve as sufficient hydrologic connections for a

body of water to be considered a tributary to a “waters of the

United States,” and thus subject to the Clean Water Act

jurisdiction of the U.S. Army Corps of Engineers.

The following is provided for clarification:

The District may assert jurisdiction over piped conveyances

even if there is no evidence of a historical connection. The

presence or absence of a “historical” or “natural” connection.

is not determinative of whether or not a body of water is

jurisdictional. The piped hydrologic connection must be

present and verified. A dye test, tile survey, engineering

plans, or other appropriate means could be used to confirm

the presence of the connection. The connection must be

discrete and easily traceable. There is no distance limitation.

2. Final Jurisdictional Determinations: Once the District

completes a final jurisdictional determination, the District

will not make a re-determination unless the District based its

determination on incorrect information. On a case-by-case

basis, the District may make re-determinations, only upon a

19a

finding that the original determination was made based on

incorrect information or material omissions.

3. Requests for Jurisdictional Determinations: Only a land-

owner can request a final jurisdictional determination. Non- |

owners can .equest a jurisdictional determination but it will

be rendered as preliminary, and subject to change. Only

the landowner can authorize Regulatory Branch staff legal

access to a property that is typically required for a final

determination.

Mitchell A. Isoe

Chief, Regulatory Branch

eer » alae a | efi,

«ere suite

DEC | - 2008 2

No. 04-1384 on 2

In the

Supreme Court of the

United States

JUNE CARABELL; KEITH CARABELL; HARVEY

GORDENKER;

FRANCES GORDENKER,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS; UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents,

For a Merits Brief

On Wnit of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE AS AMICUS CURIAE

AND BRIEF OF

DONALD L. HARKINS, CONCERNED MICHIGAN

PROPERTY OWNER

IN SUPPORT OF THE PETITIONERS

WILLIAM J. REISDORF (P28570)

189 E. Big Beaver Road, #205

Troy, MI 48083

(248) 689-6996

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

Under Rule 37.2 of the rules of this Court, Donald L. Harkins

moves for leave to file the accompanying merits brief in support of

the petitioner. Due to the last minute filing of this brief, neither the

petitioner nor the respondent has consented to the filing of this brief

although both parties are receiving copies of this filing at the same

time as the Court.

The issue presented is whether or not the Army Corp of

Engineers have jurisdiction over Petitioners’ property under the

Clean Water Act. Harkins’ interest in this case is purely in the

interest of justice in that he believes that both the trial court and the

appellate courts have allowed the Army Corp of Engineers (herein

Corps) to redefine the term “waters of the United States” in an

unlawful matter which would expand the Corp’s jurisdiction under

the Clean Water Act to include almost all “public lands of the United

States”.

Under Rule 37.1 of the rules of this Court, This Honorable Court

should favor the filing of the accompanying brief since it brings to

the attention of the Court relevant matters not already brought to its

attention by the parties and may be of considerable help to the Court.

Harkins prays this Honorable Court will grant his Motion for

leave to file the accompanying brief in support of Petitioner so that

these relevant matters can be heard.

Respectfully Submitted,

On an of Donald Meany Qf,

WILLIAM J. REISDORF (P28570)

189 E. Big Beaver Road, #205

Troy, MI 48083

(248) 689-6996

TABLE OF CONTENTS

Page

Table of Contents i

Table of Authorities ii-ill

Interest of Amicus Curiae l

FACTUAL SUMMARY 2-3

ARGUMENT 4

I. The Clean Water Act does not extend to wetlands

that are hydrologically isolated from any of

the “waters of the United States”. 4-18

lI. The limits on Congress’ authority to regulate

Interstate commerce preclude an interpretation

of the Clean Water Act that would extend federal

authority to wetlands that are hydrologically

isolated from any of the “waters of the United

States”. 4-18

CONCLUSION 18-19

TABLE OF AUTHORITIES

Cases Page(s)

Carabell, et al, v. United States Army Corps of

Engineers, et al. No. 03-1700 (2004)............cccccceeeees 6

Hughes v. State of Washington

389 U.S. 290 (1967)........ sasibeseneienssinptinnbetpaiteiaiiiedaaiiiceniiiias 14

Klais v. Danowski

373 Michigan Reports 2062 (1967)..........cccccceeeeeseeeees 15, 16

Los Angeles v Venice Peninsula Properties

BOG Cab, Bate. FEE Cap cccrccesstctoncsssonsvmnsetiussitinnssonans 13

Oliphant v. Frazho

SOE Dae Ga Cr i ccrerccnssessnsccstivcesccsssasenmniiasicstiniatin 14, 18

Ozark-Mahoning Co. v State

FF PCO Be Ge Ce ep iccccccnnectnctecnaenininnnsiintidaaigaatacaiiiviin 9, 10

State of Alaska v. United States

AD ais es ST Cae ccccasitinetnninesntinscssmmcentibitidiamniduaniaiuas 8

Summa Corporation v. California

GEES: Far ecictnssencintineatincsinpiantigtiinsinandeniiai 12, 13,17

United States v. Oregon

Se ED, 8 Cie i iccnninccniccnnesinicctnetinastatencnscsiiiisiiniiidaiidaa 9

United States v. Riverside Bay View, Inc.

SPOUT. GG Cope ncccnstassnninnsssttininsisesnnmeninnncptnitiedsti 5,7, 12, 13,14

eee

Statutes and Regulations: Pages

een 4

SSX ETL ARATE i

pt Re 5

ie: Ue iadntunndcapinntcinepasnesantagmmenemensenens 14

is ITI hincntemesentntamendnnseensvesenssesensenens 8

en tbat ccatatacaaiatdhdiinanatscccatdinndesoness 11

kre 10

me 5, 14, 17, 18

es I eR iccncececsecccscccececsescsevesnee 7

Other

Act of Congress of the 24" of April 1820.............. 14, 18

Executive Order 11990 (1977)........:ccccccceccceseeenees 8,9

MDEQ Final Determination and Order (9-30-99)... 16

S. Conf. Rep. No. 92-1236 (1972)....ccccesessvsveeeeeeeee 5

INTEREST OF AMICUS CURIAE ‘

Amicus curiae, Donald L. Harkins, is a resident of the State of

Michigan and a citizen of the United States. His interest in this case

is purely in the interest of justice in that he believes that both the trial

court and the appellate courts have allowed the Army Corp of

Engineers (herein“Corps”’) to tedefine the term “waters of the United

States” in an unlawful matter which would expand the Corp’s

jurisdiction under the Clean Water Act to include almost all “public

lands of the United States”. Furthermore, Harkins seeks to eliminate

the unfair double layer of regulation by the State of Michigan and

then the Corp which for practical purposes are mirror images of each

other and require the land owner to meet similar burdens in order to

obtain permits. Amicus curiae (hereinafter “Harkins”) seeks a

ruling in this matter which would protect the titles and vested

property interests of millions of United States land owners.

* Pursuant to Rule 37.6 of the Rules of this Court, amicus curiae state that no

counse! for a party has written this bref in whole or in part and that no person or

entity, other than the amicus curiae, a private citizen, or his counsel, has made a

monetary contnbution to the preparation or submission of this bref.

FACTUAL SUMMARY

Petitioners, June Carabell, Keith Carabell, Harvey Gordenker and

Frances Gordenker (collectively, “Carabells”) own 19.61 acres of

property in Chesterfield Township, Macomb County, Michigan.

Since 1987, the Carabells have submitted various permit proposals

to the Michigan Department of Environmental Quality (herein

MDEQ) in order to construct a multi-family condominium

development of their property. Their original proposal was for 200

units. Pursuant to a MDEQ Final Determination and Order, in

November, 1998 a permit was issued to build a 112 unit alternative

condominium development and required Petitioners to replant and

restore 3.74 acres of wetland. The reduction in size of the project

from 200 units to | 12 units and reduction in fill of 15.87 acres down

to approximately 12 acres was required under Michigan's Wetland

Protection Act (M.C.L. 324.101) in order to reduce the

environmental impact down to a level where there would be no

unacceptable impact on the natural resources of the State.

The Army Corp of Engineers (herein “Corps”) did not agree with

the MDEQ'’s Final Determination and Order and notified the

Carabells that they also have jurisdiction over their property under

the Clean Water and Air Act (herein CWA) and that they would have

to apply for a permit to discharge fill into the “waters of the United

On August 23, 1999, the Corps received a permit application

from the Carabells. AR Vol 1, Doc. 2. The Carabells essentially

requested that the Corps approve the MDEQ permit. On October 5,

2000, the Corps sent the Carabeils a letter denying the permit along

with summary findings. AR Vol. 1, Doc 76. Harkins suggests to the

Court that it is not necessary to elaborate on the reasons for the

Corps permit denial. This is because this appeal is limited to the

determination of whether or not there is jurisdiction under CWA not

whether Corps’ denial was arbitrary or capricious.

The Carabells then sought Administrative Appeal of the federal

permit denial before both the US District Court in Detroit and the

United States Court of Appeals for the Six Circuit. These appeals

both upheld the Corps’ denial. On October | 1, 2005, this Honorable

Court granted Certiorari to hear Petitioners’ appeal

ARGUMENT I

The Clean Water Act does not extend to wetlands

that are hydrologically isolated from any of

the “waters of the United States”.

ARGUMENT II

The limits on Congress’ authority to regulate Interstate

commerce preclude an interpretation of the Clean Water

Act that would extend federal authority to wetlands that are

hydrologically isolated from any of the “waters of the United

States”.

COMBINED LEGAL AND FACTUAL ANALYSIS

The question of jurisdiction in this matter presents a mixed

question of fact and law. Section 404(a) of the Clean Water Act

(“CWA”), 33 U.S.C. 1344(a) requires landowners to obtain permits

from the Corps before they discharge fill material into “navigable

waters”. Congress has defined “navigable waters” as “waters of the

United States”, including the territorial seas.” 33 U.S.C. 1362(7).

The Conference Report which accompanied the CWA included the

statement that the conferees “intend that the term ‘navigable waters’

be given the broadest constitutional interpretation.” S. Conf. Rep.

No. 92-1236, at 144 (1972). 1

In United States v. Riverside Bay View Homes, Inc. ,474 U.S.

121 (1985) The Court held that “the language, policies and history of

the Clean Water Act compel a finding that the Corps has acted

reasonably in interpreting the Act to require permits for the discharge

of material into wetlands adjacent to other “waters of the United

States.” pp. 131-139. As a result of this ruling, the EPA. and the

Corps have redefined “water of the United States” 33 C.F.R. 328.3(a

11-13-86 to include:

(1) All waters which are currently used, or were used in the

past, or may be susceptible to use in interstate or foreign

commerce, including all waters which are subject to the ebb

and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams

(including intermittent streams), mudflats, sandflats,

wetlands, sloughs, prairie potholes, wet meadows, playa

lakes, or natural ponds, the use, degradation or

destruction...........

In the Corps’ 1974 regulations, Section 404(a) defined “navigable

waters” to mean “those waters of the United States which are subject

to the ebb and flow of the tide, and/or are presently, or have been in

the past, or may be in the future susceptible for use for purposes of

interstate or foreign commerce.” 33 C.F.R. 209.120(d)(1).

(4) All impoundments of water otherwise defined as waters

of the United States under the definition;

(5) Tributaries of waters identified in paragraphs (a)(1)-(4)

of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that are

themselves wetlands) identified in paragraphs (a)(1)-(6) of

this section.

pau with this new definition of “waters of the United States”,

the Corps has determined that Carabells’ State Permitted Activity of

filling approximately 12 acres of wetlands requires a federal permit

since the activity discharges fill material into “ navigable waters” or

onto “land beneath navigable waters”.

In making the determination that Carabells’ property is included

within the definition of “waters of the United States” the Corps

apparently relied upon the following facts. (reading from the Sixth

Circuit Court of Appeals’ opinion page 1):

“In prehistoric times, this property was submerged under Lake St.

Clair. As the lake receded over time, some areas of the Carabells’

property remained covered by wetlands. Today, the property—located

”

one mile northwest of Lake St. Clair....”.

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