Amicus Curiae Brief — Rapanos v. United States

5

(2005) (O’Connor, J., dissenting); United States v. Lopez,

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

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

core police powers of the States always have included the

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

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

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

within the basic, fundamental functions of State and local

governments is the power to regulate land use planning

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

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

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

nizing the “States’ traditional and primary power over

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

of the Congress to recognize, preserve, and protect the

primary responsibilities and rights of States ... to plan

the development and usr ... of land and water.. ..”).

However, when a federal regulation infringes on tradi-

tional State functions, that regulation is inherently sus-

pect, as Chief Justice Marshall noted:

Where rights are infringed, where fundamental

principles are overthrown, where the general

system of laws is departed from, the legislative

intention must be expressed with irresistible

clearness to induce a court of justice to suppose a

design to effect such objects.

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

In its brief, Amicus MSLF will demonstrate that not

only has regulation of wetlands historically been a func-

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

tion continues to be exercised by State and local

governments, despite the encroachment of federal regula-

tion upon their sovereign functions. Further, although

6

administrative agencies are given deference in interpret-

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

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

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

unreasonable, or manifestly contrary to the statute.” Jd. at

843-844. The authority Congress grants the agency to

interpret its statutes cannot exceed in scope the powers

granted Congress by the Constitution. McCulloch uv.

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

federal government’s interpretation of the CWA, extending

jurisdiction to wetlands with the slimmest of purported

“hydrological connections” to navigable waters, is an

impermissible reading of the CWA, and because federal

jurisdiction over such waters exceeds Congress’s constitu-

tional powers, this Court should reverse the decisions of

the Sixth Circuit Court of Appeals and hold that the CWA

does not reach these nonnavigable, intrastate wetlands.

I. STATES HISTORICALLY HAVE REGULATED,

AND CONTINUE TO REGULATE, WETLANDS

DESPITE FEDERAL ENCROACHMENT UPON

STATE SOVEREIGN POWERS.

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

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

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

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

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

and local governments had recognized the importance of

environmental quality and had adopted first generation

environmental controls. Jonathan H. Adler, The Fable of

Federal Environmental Regulation: Reconsidering the

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

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

7

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

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

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

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

145, 191 (2003). “The regulation of wetlands, particularly

when nonpolluting activities are involved, entail the

regulation of a myriad of ordinary land uses, from building

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

tion of wetlands is a traditional state function, much like

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

sands of local governments regulate the use and modifica-

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

and the Menace of Mr. Wilson: Commerce Clause Jurispru-

dence and the Limits of Federal Wetland Regulation, 29

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

Local Government Roles and Partnerships for Fair, Flexi-

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

Wetland Managers 1994).

In fact, years before the United States District Court

for the District of Columbia “asserted federal jurisdiction

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

ble under the Commerce Clause of the Constitution,”

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

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

Nation’s first statute requiring a State permit before

—filling or dredging coastal wetlands. Cymie Payne, Local

Regulation of Natural Resources: Efficiency, Effectiveness,

and Fairness of Wetlands Permitting in Massachusetts, 28

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

afforded protections under the State permit system, and,

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

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

gress enacted the CWA, other States, including Connecticut,

8

Georgia, and Washington were enacting wetland protec-

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

Massachusetts was the first state to enact an explicit

wetlands protection statute, many localities had already

done so. The Massachusetts law was itself based on a

number of local zoning permit requirements already to be

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

By 1975, when Callaway was decided, every coastal

State, except Texas, hac adopted coastal wetland protec-

tions of some kind, and eleven States had enacted statutes

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

State Wetland Regulation: Status and Emerging Trends 1

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

tantly, fourteen of the fifteen States that have ten percent

or more of their landmass covered by wetlands had en-

acted their first wetland protection laws by 1975. Adler,

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

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

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

codified the Callaway decision expanding federal jurisdic-

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

authorizing federal regulation of wetlands. Clean Water

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

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

While many States had yet to enact wetland conserva-

tion statues before 1975, that fact alone is unpersuasive.

“The mere existence of a federal regulatory program likely

provides states with a substantial incentive not to regulate

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

likely to devote their resources to other priorities, rather

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

Swamp Rules: The End of Federal Wetland Regulation? 22

Reg. 11, 14 (1999).

Despite the incentive not to act, many States enacted

wetland conservation programs to supplement or augment

federal efforts, or to protect wetlands beyond the reach of

the federal government but well within the State and local

government’s authority regarding land use. Fifteen States

have regulatory statutes protecting freshwater wetlands.

In addition, other States protect wetlands through various

programs and regulatory schemes, including shoreline or

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

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

authority to enforce CWA section 404 permitting from the

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

Federalism in Wetlands Regulation: A Consideration of

Delegation of Clean Water Act Section 404 and Related

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

(1995). Other States have assumed authority over the

regulation of isolated wetlands following this Court’s

decision in SWANCC through their CWA section 401 water

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

Isolated Wetlands Jurisprudence Post-SWANCC and

Resulting Federal and State Attempts to Fill the Void, 11

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

reason to believe that States will discontinue their wet-

land programs if federal enforcement were not present;

indeed, that States have continued to regulate wetlands,

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

ness and capability to enforce their own wetland conserva-

tion programs.

10

II. REMOVING FEDERAL REGULATION WILL

NOT RESULT IN A SIGNIFICANT GAP IN

WETLAND REGULATION.

The conventional wisdom holds that federal regulation

is necessary because State efforts and nonregulatory

initiatives are ineffective in safeguarding environmental

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

Reg. at 12. However, “(t)he history of wetland conservation

efforts suggests that states were hardly the environmental

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

above, not only did many States begin to protect wetlands

before the federal government, States continue to develop

new approaches to wetland conservation. Additionally,

there are substantial nonregulatory conservation efforts

that show great promise in preventing the destruction of

wetlands on private property. After all, more than seven

percent of nonfederal land in the 48 contiguous States,

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

the eastern United States. Natural Resources Conserva-

tion Service, National Resources Inventory - 2002 Annual

NRI (2004).

Where State regulatory programs have been estab-

lished, they generally have slowed wetland destruction.

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

when Virginia enacted its first wetland protection statute,

“documented alteration of [Virginia’s] wetlands dropped

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

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

wetland losses and has prevented far more wetland

destruction than would have occurred under the CWA

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

than the Corps of Engineers may under the CWA. In

Maryland, “virtually any activity which may impact the

11

wetland is regulated under its wetland protection statute.”

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

States enforce sizable buffer zones protecting their wet-

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

land’s 25- to 50-foot buffer. Jd.

Further, State and local wetland regulation is more

likely to devote scarce resources to the greatest environ-

mental concerns. “Federal regulators, regardless of their

intentions or regulatory authority, are inherently limited

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

there are more then 100 million acres of wetlands in the

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

of Engineers employees are tasked with wetland regula-

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

53. State and local regulators are better able to provide

their local communities with the certainty, predictability,

and equity that they seek. Virtually every State and local

government maps wetlands as part of its regulatory

process yet no federal jurisdictional maps are available to

allow landowners to determine conclusively whether or not

their properties are wetlands subject to federal jurisdic-

tion. Jd. at 53.

Since this Court’s decision in SWANCC, several

options have been proposed to close any gaps left in the

regulation of isolated wetlands, including the proposal of a

model State wetland statute created by the Association of

Wetland Managers. Ass’n of State Wetland Managers,

Model State Wetland Statute to Close the Gap Created by

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

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

to include the type of nonnavigable, intrastate wetlands at

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

hensive wetland statutes could look to several other States

12

for examples of effective legislation. Therefore, there will —

be little lag time between the determination that the

federal government lacks jurisdiction over the lands at

issue in this case and the reestablishment of State protec-

tion efforts.

In addition to State and federal regulatory programs,

several nonregulatory programs are available to protect

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

generation of wetland conservation programs: the North

American Waterfowl Management Plan in 1986, the

United States Fish and Wildlife Service’s Partners for Fish

and Wildlife program in 1987, and the Natural Resource

Conservation Service’s Wetland Reserve Program in 1990.

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

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

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

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

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

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

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

the cost of CWA section 404 mitigation projects “can reach

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

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

Reg. at 16.

Furthermore, private conservation efforts have proven

very effective in wetland protection. For example, Ducks

Unlimited, a private conservation group, restored or

enhanced more then 50,000 acres of wetlands in 1994

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

national environmental groups, such as the Nature Con-

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

peake Wildlife Heritage, a group focusing on wetland

restoration projects in the Chesapeake Bay area, taken in

13

conjunction with the federal and State nonregulatory

programs undoubtedly results in far greater wetland

conservation then CWA section 404 possibly could. All

tolled, State programs, nonregulatory federal programs,

and private conservation efforts are quite capable of filling

any perceived gap left after federal section 404 enforce-

ment over nonnavigable, intrastate wetlands is held to be

unconstitutional.

Ill. THE FEDERAL AGENCIES’ DEFINITION OF

“WATERS OF THE UNITED STATES” TO IN-

CLUDE NONNAVIGABLE, INTRASTATE WET-

LANDS IS AN UNREASONABLE INTERPRE-

TATION OF THE CLEAN WATER ACT AND IS

NOT ENTITLED TO DEFERENCE.

When the terms of a statute are clear, courts provide

little room for agency interpretation of those terms;

however, when Congress delegates authority to enforce a

statute to a governmental agency, while leaving some

ambiguity in how the agency is to enforce the statute,

courts should assume that Congress impliedly delegated

the authority to interpret the ambiguity to the agency

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

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

statute is “arbitrary, unreasonable, or manifestly contrary

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

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

grant Chevron deference to agency interpretations that

raise significant constitutional questions, such as whether

Congress had the power to regulate the waters at issue

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

681-683.

14

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

Sixth Circuit’s reliance on Chevron deference is misplaced.

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

was presented with the question of whether the Corps of

Engineers’ regulation interpreting section 404, the very

regulation at issue here, properly extended federal juris-

diction to intrastate waters used as habitat by migratory

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

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

scope of federal jurisdiction to navigable waters or open

waters and those waters, including wetlands, immediately

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

the government’s argument that federal jurisdiction

extended further, this Court determined that the plain

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

SWANCC, this Court also determined that the exercise of

CWA jurisdiction over nonadjacent wetlands would raise

“significant constitutional questions” under the Commerce

Clause and that Congress would not be deemed to have

pushed the outer limits of its authority without a “clear

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

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

this Court invalidated CWA jurisdiction over nonadjacent

wetlands. Jd. at 174.

Despite this Court’s decision in SWANCC, the federal

government continues to assert jurisdiction under the

CWA over nonnavigable, intrastate wetlands such as

Petitioners’ properties. Although some federal courts have

decided that SWANCC was a limited ruling and have

affirmed federal regulation of any wetland with any

“hydrological connection” to navigable water, no matter

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

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

15

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

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

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

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

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

tion over all waters except for actually navigable waters,

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

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

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

contrary to this Court’s precedent in SWANCC, Chevron

deference by the Sixth Circuit was misplaced and Peti-

tioners’ properties should have been found to not be within

the jurisdiction of the CWA.

IV. THE FEDERAL AGENCIES’ INTERPRETA-

TION AND THE SIXTH CIRCUIT’S RULINGS,

EXTENDING CLEAN WATER ACT JURISDIC-

TION TO NONNAVIGABLE, INTRASTATE

WETLANDS WITH ANY HYDROLOGICAL

CONNECTION TO NAVIGABLE WATERS, EX-

CEEDS CONGRESS’S POWER UNDER THE

COMMERCE CLAUSE AND INTRUDES ON

TRADITIONAL STATES’ RIGHTS.

The Sixth Circuit, in upholding the federal govern-

ment’s regulation of nonnavigable, intrastate wetlands on

the Petitioners’ properties, has misinterpreted the juris-

dictional limitations of the CWA. The current federal

regulations provide a very broad definition of “waters of

the United States,” encompassing wetlands adjacent to

other bodies of water (other than waters that are themselves

wetlands). 33 C.F.R. § 328.3(a); 40 C.F.R. § 122.2. Moreover,

federal regulations are far more explicit in defining

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

16

“adjacent wetlands” as “wetlands separated from other

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

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

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

nonnavigable, intrastate wetlands on the Petitioners’

properties are subject to federal control under the CWA

because of the presence of a “hydrological connection”

establishing a “significant nexus between the wetlands

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

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

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

sion despite acknowledging that the “wetlands” on the

Petitioners’ properties are not physically adjacent to, or

directly abutting, any navigable water. If the federal

government may regulate all waters with a purported

hydrological connection to any navigable water, no matter

how tenuous or remote the connection, there is virtually

no land that the federal government may not regulate, and

the Commerce Clause has no meaning as a limitation on

Congress's power. :

The Sixth Circuit’s holdings disregard totally this

Court’s Commerce Clause jurisprudence, and will, if

allowed to stand, permit the federal government to use the

CWA to regulate private property in every State with no

constitutional limit. Moreover, this broadening of federal

jurisdiction under the CWA does not just limit the rights of

landowners, it encroaches upon the very rights of the

States themselves to regulate lands within their borders.

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

ated powers granted to the federal government. They are

the basic, fundamental functions of local governmental

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

(“regulation of land use is perhaps the quintessential state

17

activity”). Authority over these functions is reserved,

traditionally, to the States under the Tenth Amendment.

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

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

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

gress to recognize, preserve, and protect the primary

responsibilities and rights of States ... to plan the devel-

opment and use... of land and water .. ..”).

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

whenever Congress attempts to regulate areas tradition-

ally regulated by State or local governments, including the

rights of private property owners, this Court will review

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

Foretelling the scrutiny it would apply, this Court rejected,

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

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

proffered by Congress both because, had it accepted those

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

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

enforcement or education where States historically have

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

Commerce Clause would undermine the federal system of

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

Likewise, in SWANCC, congressional authority under

the Commerce Clause was tested. In SWANCC, this Court

addressed whether EPA and the Corps could regulate iso-

lated intrastate waters and wetlands that are not connected

or adjacent to navigable waters “based on their actual or

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

164. This Court held that the migratory bird regulation was

invalid because Congress did not intend to include “isolated”

wetlands or waters within the term “navigable waters”

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

18

Although the SWANCC decision did not decide

whether federal regulation of nonnavigable, intrastate

wetlands exceeded congressional authority under the

Commerce Clause, this Court did suggest that the Corps’

interpretation may have exceeded that authority. Jd. at

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

isolated, intrastate wetlands would raise serious questions

under the Commerce Clause because local land use regula-

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

174. Even though previous rulings had found that migra-

tory bird protection was a “national interest of very nearly

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

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

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

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

was no clear statement in the CWA that Congress intended

to give the federal government authority over isolated

wetlands, this Court refused to interpret the regulation to

include “federal jurisdiction over ponds and mudflats falling

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

significant impingement of the States’ traditional and

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

Because local land use and private property rights are

necessarily intertwined, this Court’s holdings in Lopez and

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

sion of federal jurisdiction under the CWA to nonnavigable,

intrastate wetlands that do not abut navigable water sub-

stantially intrudes on the rights of the Petitioners, as private

landowners, and on the sovereign power of the State to

control local land use. Justice Kennedy, concurring in the

Lopez decision, argued that courts should be hesitant to

allow Congress to use the Commerce Clause as its basis for

federal regulation in an “area of traditional state concern”

19

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

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

Kennedy elaborated that, with such an expansive definition

of the Commerce Clause, “the boundaries between the

spheres of federal and State authority would blur and

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

Accordingly, the Sixth Circuit’s upholding of the

federal government’s regulation of nonnavigable, intra-

state wetlands, such as the Petitioners’ property, intrudes

unconstitutionally on the rights of private landowners to

use their land and the responsibilities of States to regulate

local land use. The repercussions of such unbounded

federal authority over “waters of the United States” are

far-reaching and substantial.

+

CONCLUSION

For the foregoing reasons, Mountain States Legal

Foundation respectfully requests that this Court overturn

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

diction of the Clean Water Act does not reach nonnaviga-

ble, intrastate wetlands such as Petitioners’ properties.

Respectfully submitted,

WILLIAM PERRY PENDLEY*

*Counsel of Record

RONALD W. OPSAHL

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

December 2, 2005

[~~ Supreme Court. US.

Filed

DEC 2, 2005

OFFICE OF THE CLERK

Nos. 04-1034, 04-1384

In The Supreme Court of the United States

JOHN A. RAPANOS, ET AL.

Petitioners,

v.

UNITED STATES,

Respondent

JUNE CARABELL, ET AL.

Petitioners,

v.

UNITED STATES ARMY CORPS OF ENGINEERS,

Respondent.

On Writs of Certiorari to

The United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF THE PETITIONERS

Duane J. Desiderio

(Counsel of Record)

Thomas J. Ward

Felicia K. Watson

Nationa! Association of

Home Builders

1201 15" Street, N.W.

Washington, D.C. 20005

(202) 266-8200

TABLE OF CONTEN

Page

a RECS Ra Sey Bee l

I Re er eee naee ane Ta l

Pa iicictinceninitininibailbinteliaanciiaisinanitinintinmapringipimantionstiatiiitini 2

DITCHES, MUNICIPAL STORM SEWER

SYSTEMS, AND OTHER POINT SOURCES ARE

NOT CWA “NAVIGABLE WATERS” .........0000........ 2

ere an ae 3

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

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

C. The “Discharge” Definition Further Clarifies that

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

D. Like Ditches, Municipal Storm Sewer Systems are

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

E. Classifying Ditches and MS4s as “Navigable

Waters” Yields Unreasonable Results ................. 1]

WETLANDS ADJACENT TO FEATURES THAT

ARE NOT “OPEN WATERS” ARE NOT WITHIN

CWA JURISDICTION AS A MATTER OF

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

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

SE ciate ecb iticaitie hntucieectiitinipbidinmaebiionns 13

“*

C. Likewise, Federal Agencies Understand “Open

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

lil. TO SATISFY THE “SIGNIFICANT NEXUS”

PRINCIPLE, THE GOVERNMENT SHOULD

PRODUCE PROOF OF DOWNSTREAM EFFECT

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

RELL LE I MONET AELT AAEE 17

Ba) INI MUTI corescsctphthgmimnuneiidgpbeindlenictvonebingaiben 20

C. Hydrologic Connection Alone does not Satisfy

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

D. Effect on Navigable-in-Fact Waters Must

be Imported into a “Significant Nexus”

SEN richctn chderieceisiodnideendabicikemedmmabghosdighiacbeidatied 24

E. Requiring Proof of Effect is Consonant with the

CWA’s Objective to Prevent Actual Discharges

NRCS SERIES CY eG ee sa wh 26

F. The “Significant Nexus” Standard is Analogous

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

i PEST LT IL IE LRG IEE AS Se MT TN 30

TABLE OF AUTH IES

Cases Page (s)

Am. Tobacco Co. v. Patterson,

I SO eee 1]

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

oe 4 Rg. SERRE medals Selweos Sesen oor 28, 29

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

Bowen v. Georgetown Univ. Hosp.,

ees BO DR isntsvniptickickitiacobigiiicintngibsdhaatcbaininideladitize 8

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

391 F.3d 704 (6™ Cir. 2004)...........ccseccscssssssssersees 3, 22, 23

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

I MUS TU I dialect iet oe 6

Comm 'r of Internal Revenue v. Engle,

OBO U.S; BOG (IFO on inccscencccctcnsncescoenseses Lcsiacinencchadiabiai 1]

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

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

RT NT i ili checks denn alan clinoninksaibacanpiiina 18

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

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

SP ip stickicindsistiyecisevitnciiitbiaccinscinsetbhesincuea 9

iV

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

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

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

DEP GEAR. SUI AEN assis issn sicdniineidetidoniiehdabiaviieettamonduaianesl 5

Headwaters, Inc. v. Talent Irrigation Dist.,

SGP SOTIE Ce: WAG kitchen 27

INS v. Cardoza- Fonseca, 480 U.S. 421 (1987) ..........0..... 8

In re Needham, 354 F.3d 340 (5"™ Cir. 2003)........00.0000++. 28

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

Fae i FO COO E Rieti dheessvcxiintiiliae iabiiiidiatidmpai ae! 14

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

DEO CE SFO Cai iitiichictiisicinpidiicimi hpi ae 4

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

EGE, TES UTED. TGR cisscccisiceniechsiiindpiagithinliniiddsantas 11

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

GED UD. FEB CIF cccrticcscectectntnistsstinilenpiciintntcdncaseitaha 29

Morales v. Trans World Airlines, Inc.,

FOG CR FPO Gea OD iiccehetniamicsedbinecsnobiiabtaninaiauipianinniiaiimans 5

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

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

O02 F.D6 SOD E 6: i ciicinsiateneteneenittatiaaens 7

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

S368 F.26-1SGD GA, Che: FOF iccirerttncitctentntintcinntinins 9

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

I i 19, 20

Phillips Petroleum Co. v. Mississippi,

EERE TE Se aan oee 17

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

| hTERT a Ce 24, 25, 30

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

Corps of Eng'rs, 531 U.S. 151 (2001) 0000. passim

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

a a a cscs cechenctpentianinititbinansionettinien 7

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

The Daniel Ball, 77 U.S. S57 (1870) ..........cccccecccccsees 17, 18

The Nevada v. Quick, 106 U.S. 154 (1883) .............0.00. 14

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

Re 17

United States v. Appalachian Power Co.,

Ea 17, 18, 19, 21

United States v. Buday, 138 F. Supp. 2d 1282

ERE AIS SOS NE See ee 23

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

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

vi

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

gg RGAE ne RE Bete seg NER ae 27, 28

United States v. Oregon, 295 U.S. 1 (1935) .....ccccccccceeee 14

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

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

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

cert. denied, 541 U.S. 972 (2004) .00.........ccc. cctecceeceee 3, 22

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

Fe ee ee eiiictnstinsincntitapsnduitinciepeienapuaresdmnnaitiis 19

United States v. Riverside Bayview Homes, Inc.,

fl Eee 5, 13, 20, 21

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

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

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

ee 26, 27

W. Union Tel. Co. v. Lenroot,

0 Ry eae 4,5

Statutes

Clean Water Act:

EE ae ees 6

Bs a SD ss vines nenintennicniitaiciateticiatieenimsvietialaamaiia 2

ITI TATE icninsirtrinicinectepeniattiiioiciiaaibininaia tamil 11

Lk Ee, eee ee renee ee 7

Ee PORTA 9

vii

BS UBC. © SRD naxceevecsesercecsesovessecers ad aa 10

Be ee el cercitncrnniicenennamadenanesaniiiadinmiaieaaiots 9

Sd iI hice tnrticrbaseinlnacihciehaiehiatdineahtnisnnnindtadial 7

I TI eiitilineieeninldiahitnndtaceenicilnalihiiiaa 5

Be ice Ot A iesnctinctenincepiethidibinnimpiaeilalianaiiteishial 6

a EN Sa ieee ae 459

Other Statutes:

8 iS a ee 29

Natural Resources and Environmental Protection Act 451

of 1994 (codified at Mich. Comp. Laws § 324.101

Ic, cise sscicnsch hicks aibiidienaipleinnduiletidsactcasiobaiitie- das 8

Regulations:

2 REET Soe eeneemene ten mee rc ee. 15

eet ANIL Sek Ii ES aR 15

I a 15

a FERIA TS CLES 12

EE Sa IP er a 3,4,5

Ei ERE EEE SSS ae IE 4,13

ne cciuetueubantemmianeieed 9

EEL 10

40 C.F.R. § 122.26(d)(iv)(D) .........ecccccccccceeeseeceseseeeeseeveees 10

I 15

EERE NG NRE ea 12

ST Tae a a TOR, il

0 RF” ISIE cas Snes Sia on 29

BR OT TERIA eae ee 15

ke ERS ci Be A de Ae de 15

ee Rb + Se ee 29

viii

Permits for Activities in Navigable Waters,

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

National Security Information,

48 Fed. Reg. 21,466 (May 12, 1983) ............2cccccesecceeeeeees 8

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

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

National Pollutant Discharge Elimination System Permit

Application Regulations for Stormwater Discharges,

55 Fed. Reg. 47,990 (Nov. 16, 1990)....000000...0. 10, 11

Issuance of Nationwide Permits; Notice,

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

Mich. Admin. Code R. 323.1100(5) (1999)...........0......... ll

Other:

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

American Heritage® Dictionw 4” ed. 2000)................ 24

Resp. Cert. Br. in Opp’n,

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

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

Resp. Cert. Br. in Opp’n,

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

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

Design and Construction of Urban Stormwater

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

RI SA ice eihsasiinesisinscachtpiectanehenieiiiniinnideeanihlas atau 10

ix

Dan B. Dobbs, The Law of Torts (2000).......0....c.c0000000000 29

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

available at http://204.176.34.196/macombdaily/

article. GaT EI “OSGI Ge cinissicecesconcesoccsssocssensessescscesses 14

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

Benjamin H. Grumbles, Assistant Administrator for

Water, U.S. Environmental Protection Agency, to

Regional Administrators regarding Agency

Interpretation on Applicability of Section 402 of the

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

Marc Reisner, Cadillac Desert: The American West

and its Disappearing Water (rev. ed. 1993)..............0..+. 18

] Laurence Tribe, American Constitutional Law

IS AIUD cciediisbienscatncbibeiiecninndadnuseicliddutanitciesditiiigile ties: 5,6

Ben Urbonas, et al., Stormwater, Best Management

Practices and Detention for Water Quality, Drainage,

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

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

Highway Statistics 2001 § V, Roadway Extent,

Characteristics, and Performance Tbl. HM-10, at

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

(last visited Nov. 10, 2005) .000..........cccccccceecseeeeeeeeereeeeeeen 12

T MI

The National Association of Home Builders

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

this amicus curiae brief supporting Petitioners.’ NAHB

represents over 220,000 builder and associate members

throughout the United States, including individuals and

firms that construct and supply single-family homes, as

well as apartment, condominium, multi-family, commercial

and industrial builders, land developers and remodelcrs. Its

members are frequently subject to regulations unu the

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

developed comprehensive familiarity with the CW s

permitting requirements, provides compliance advice to i

members, and, unfortunately, has witnessed numerous

situations where federal regulators have exercised their

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

before the Court as amicus curiae in the cases listed in

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

who have been aggrieved by over-zealous regulation under

the CWA and other statutes and programs.

SUMMARY OF ARGUMENT

(1) Point Sources are not Navigable Waters: The

Court of Appeals ruled that ordinary drainage ditches at the

Rapanos and Carabeill sites are “navigable waters.”

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

a municipal storm sewer system which has been permitted

under CWA Section 402 to control pollutant discharges.

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

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

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

party, and no one other than amicus made a monetary

contribution to its preparation.

2

Congress intended ditches and storm sewers to be regulated

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

of Appeals should be reversed accordingly.

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

that wetlands are subject to the CWA if they are

immediately adjacent to “open water.” The Court of

Appeals should be reversed because it stretched the CWA

to reach wetlands immediately adjacent to “point sources.”

(3) “Significant Nexus” Should Consider Downstream

Impact: This Court has established the principle that the

CWA covers non-navigable features with a “significant

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

inquiry in any given case is highly fact sensitive and must

consider whether upstream activity in a non-navigable

feature causes tangible impact on downstream navigable-in-

fact waters.

ARGUMENT

I. DITCHES, MUNICIPAL STORM SEWER

SYSTEMS, AND OTHER POINT SOURCES ARE

NOT CWA “NAVIGABLE WATERS.”

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

simple. Congress intended to regulate pollutants going into

“navigable waters,” by requiring permits to control

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

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

permitted elsewhere in the Act). The Court of Appeals

never considered this distinction, and should not have

afforded Chevron deference to the Corps’s interpretation

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