Amicus Curiae Brief — U.S. Army Corp of Eng'rs v. Hawkes Co., 136 S. Ct. 615 (2015) (No. 15-290)

Supreme Court brief2015

Ask Donna

What actually matters in this document.

Text

No. 15-290

IN THE

Supreme Court of the United States

UNITED STATES ARMY CORPS OF ENGINEERS,

Petitioner,

Vv.

HAWKES Co., INC., ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF FOUNDATION FOR

ENVIRONMENTAL AND ECONOMIC PROGRESS AND

UTILITY WATER ACT GROUP AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

ANDREW J. TURNER VIRGINIA S. ALBRECHT

KARMA B. BROWN Counsel of Record

KRISTY A. N. BULLEIT DEIDRE G. DUNCAN

Of Counsel BRIAN R. LEVEY

UTILITY WATER ACT GROUP HUNTON & WILLIAMS LLP

HUNTON & WILLIAMS LLP 2200 PENNSYLVANIA AVE, N.W.

2200 PENNSYLVANIA AVE., N.W. WASHINGTON, D.C. 20037

WASHINGTON, D.C. 20037 valbrecht@hunton.com

(202) 955-1500 (202) 955-1500

March 2, 2016 Counsel for Amici Curiae

QUESTION PRESENTED

Whether an approved jurisdictional determina-

tion (“AJD”) finalized through the United States Ar-

my Corps of Engineers (“USACE” or “the Corps”)

administrative appeals process, 33 C.F.R. Part 331,

constitutes “final agency action for which there is no

other adequate remedy in a court,” 5 U.S.C. § 704,

and is therefore subject to judicial review under the

Administrative Procedure Act (“APA”), 5 U.S.C. §§

701, et seq.

‘i

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................eecceccccecccceee i

TABLE OF CONTIENTSS ........0<cccccccccccccccccccccccccccsccccces ii

TABLE OF AUTHORITIEG.....................00..0ccccseeeeeee iv

INTERESTS OF AMICI CURIAE .............0..00cccee0e000 1

SUMMARY OF ARGUMENT. ..................000.00cccceeeeeeeee 2

BACKGROUND:

WHAT APPROVED JURISDICTIONAL

DETERMINATIONS ARE AND WHY THEY

I i 4

I a a a 15

I. Approved Jurisdictional Determinations

Are Final Agency Action Under the

Administrative Procedure Act........................ 16

A. Agency Action Is Final If It Is

Definitive and Has a Direct,

Immediate, and Practical Impact........ 18

B. Approved Jurisdictional

Determinations Have the Requisite

Effects to Be Final Agency Action. ...... 22

Il. There Is No Other Adequate Remedy in a

Court for Approved Jurisdictional

TTT iio sicnriassinnttnetnisinbdiniinnieunaaaiinanetin 30

A. Judicial Review of a Permit Is Not

an Adequate Remedy for an

Unlawful Approved Jurisdictional

ES TE LE TO eo ee 31

B. Judicial Review in the Context of

an Enforcement Action Is Not an

Adequate Kemedy for an Unlawful

Approved Jurisdictional

ETE ESTE a ER 35

TIES ee NC Te a PED 39

ica a ncniceinntiliaitiliia nea dieetbtnads la

Declaration of Professor David L.

EE Ie ET ea ee la

TABLE OF AUTHORITIES

Page

Federal Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967).. passim

Belle Co., L.L.C. v. U.S. Army Corps of Eng’rs,

761 F.3d 383 (Gth Cir. 2014)..........cccsccccccccccccscoees 18

Bennett v. Spear, 520 U.S. 154 (1997)................ 17, 20

Borden Ranch P’ship v. U.S. Army Corps of

Eng’rs, 261 F.3d 810 (9th Cir. 2001), affd,

I a ceaenmansieinnionts 27

Columbia Broad. Sys., Inc. v. United States, 316

el 19

Duarte Nursery, Inc. v. U.S. Army Corps of

Eng’rs, 17 F. Supp. 3d 1013 (E.D. Cal. 2014)..... 10,

Ex parte Young, 209 U.S. 123 (1908)........................ 37

Fairbanks N. Star Borough v. U.S. Army Corps

of Eng’rs, 543 F.3d 586 (9th Cir. 2008) ............... 18

Frozen Food Express v. United States, 351 U.S.

EEE Tce enya 17, 18, 19

FTC v. Standard Oil Co., 449 U.S. 232 (1980)......... 17

Hanson v. United States, 710 F Supp. 1105

SE Es ST heniisiinsiinnenshtpntniniestenieninianiiimindeneins 28

Harrison v. PPG Indus., Inc., 446 U.S. 578

Hawkes Co. v. U.S. Army Corps of Eng’rs, 782

F.3d 994 (8th Cir.), cert. granted, 136 S. Ct.

a iainmmenans 9

In re EPA & Dep't of Def., 803 F.3d 804 (6th Cir.

RRO EE RAM ena oc 8

Nat Ass'n of Home Builders v. U.S. Army Corps

of Eng’rs, 417 F.3d 1272 (D.C. Cir. 2005) .....28, 29

Nat. Res. Def. Council, Inc. v. Callaway, 392 F.

EER ee 7

Port of Bos. Marine Terminal Ass’n v. Rederiak-

tiebolaget Transatlantic, 400 U.S. 62 (1970) ...... 21

Rapanos v. United States, 547 U.S. 715 (2006)......... 7,

ses deiiisiaeediadudiltaiaediiiieiiadeattdaraiaieinsishinidhdindinateinsapsinnanaeiiie 33, 34

Sackett v. EPA, 132 S. Ct. 1367 (2012)................ 5, 17,

aici uit pineal 21, 37, 38

Solid Waste Agency of N. Cook Cnty. v. U.S. Ar-

my Corps of Eng’rs, 531 U.S. 159 (2001)............... 7

Tabb Lakes, Ltd. v. United States, 715 F Supp.

726 (E.D. Va. 1988), aff'd, 885 F.2d 866 (4th

Ne iiessbincsinntnticninncinicsiicintinntiidiiniaiindendiiidnieee 7

United States v. Ellen, 961 F.2d 462 (4th Cir.

i issciensticsiisienncniiitiinlesdainsineandiaininitinintinadnininncesinenionse 27

United States v. Feinstein Family P’ship, No. 96-

232-CIV-FTM-24(D), 1998 U.S. Dist. LEXIS

23963 (M.D. Fla. Oct. 28, 1998)..................... 27, 28

United States v. Key West Towers, Inc., 720 F

BRU, GS GENS BEI ccccccsccsicccscsoscecencvessncesee 28

United States v. Lipar, No. H-10-1904, 2015

U.S. Dist. LEXIS 115821 (S.D. Tex. Aug. 30,

2015), appeal docketed, No. 15-20625 (5th

ES RR rn i 9, 10

United States v. Pozsgai, 999 F.2d 719 (3d Cir.

SEIT cccccovusisconiisinnetiiniimasteneenegeaininiinaanieiaael eae 27

United States v. Riverside Bayview Homes, Inc.,

ft Bf ae ee ee 5

United States v. Wilson, 133 F.3d 251 (4th Cir.

TIE ccccncocnsvcsunneninntensnienaimenpgeisiddaiialaiaiancimanaeall 7

State Cases:

Bergen Cnty. Assocs. v. Borough of E. Ruther-

ford, 12 N.J. Tax 399 (N.J. Tax Ct. 1992)........... 25

Deerfield Plantation Phase II B Prop. Owners

Ass'n v. S.C. Dep't of Health & Envtl. Con-

trol, 777 S.E. 2d 817 (S.C. 2015)..................eeec0es 26

Dep't of Transp. v. La Salle Natl Bank, 623

N.E.2d 390 (Ill. App. Ct. 1993) ..................cessseeeee 32

Federal Statutes:

BD TE. © GID exncevceccscccnrseninnneninidbiaiamemaiam 4

SS ere 4, 21, 27

BD TG © DI cnccnecenescscsnstisnecmmpiveianiammal 27

BD CEE © i iecncsssccnsesesstnniniennaiiniiiasiaiaiial 4, 27

ED RO eet 4

AD Ss Te IO cccccnccsnenncennsensicnrsonssmindiniaiéaiameeaaiamall 4

BD TS. © BID neo cececcccecssemnsssntinnstintineiasmmemaam 28

ET 4

State Statutes:

LA. REV. STAT. ANN. § 9:3198(A)(1) (2013).......... 25, 26

Legislative History:

Consolidated Appropriations Act, 2016, Pub. L.

No. 114-113, Division D, Title I, 129 Stat.

ee 11

S. Rep. No. 752 (1945) ........cccccccececseceesecseceseesesseseeeeees 39

Federal Regulations:

A 25

ee 11

nnn sinrierescnnecsnenncsnnanasasncnionnss 29

a 4

Tice trninresienincennsesnetenntedsenemeeten 11,14

ee 34

33 C.F.R. Part 331, Appendix A.......................... 30, 32

33 C.F.R. Part 331, Appendix C.................... 11, 30, 32

a 32

ic eneacetnrinsanncmesensenagins 8

se I OO ID vecctcccccccccnccssccsccsvssccesconcse 15

State and Local Regulations and Forms:

Beaufort, S.C., Unified Development Ordinance,

App. (revised Sept. 14, 2012) ................cccccceccceeees 26

City of Charleston, S.C., Subdivision Concept

Plan Submittal Checklist ............0........cccccccceeeeee 26

Horry County, S.C., Code of Ordinances, ch. 18,

RR ee 26

Louisiana Property Disclosure Document for

Residential Real Estate (Rev. 02/01/15).............. 25

South Carolina Dep’t of Health & Envtl. Con-

trol, National Pollutant Discharge Elimina-

tion System General Permit for Stormwater

Discharges from Construction Activities, §

ER Rete AR OIE te 2 aS ATES. 26

Federal Register:

65 Fed. Reg. 12,818 (Mar. 9, 2000) ..............c.cccc00000- 28

78 Fed. Reg. 66,643 (Nov. 6, 2013) .......................22200. 4

80 Fed. Reg. 37,054 (June 29, 2015)...........c0cc00000-. 8,9

Court Materials:

Duarte Nursery, Inc. v. U.S. Army Corps of

Eng’rs, 17 F. Supp. 3d 1013 (E.D. Cal. 2014)

(No. 2:13-cv-2095-KJM-AC)

e Mem. of Points & Authorities in Supp. of

Fed. Def.’s’ Mot. to Dismiss Compl. (Dec.

Fie Sie erissiccinenigsenseccmniasmmntmnionesinnbibpuapeonmenenes 36

Sackett v. EPA, 132 S. Ct. 1367 (2012) (No. 10-

1062)

e Transcript of Oral Argument (Jan. 9,

iit iciisiccinsacinhedehasipitiaiasdashistedimiuiaiesitin 16, 27, 31, 39

Miscellaneous:

Abcarian, Robin, This case is enough to furrow a

farmer’s brow, LOS ANGELES TIMES, Jan. 15,

alienate leet 36

Federal Storm Water Association Comments on

Proposed Definition of “Waters of the United

States,” (Nov. 14, 2014), EPA-HQ-OW-2011-

RESET ECTS Seee conan seer 8

Jacobs, Jeremy P., Concrete-lined river seen as

regulatory quagmire for EPA, E&E GREEN-

I 8

Memorandum of Agreement Between the De-

partment of the Army and the Environmen-

tal Protection Agency Concerning the De-

termination of the Geographic Jurisdiction of

the Section 404 Program and the Application

of the Exemptions Under Section 404(f) of

the Clean Water Act (Jan. 19, 1989)............. 11, 32

Memorandum of Agreement Between the Envi-

ronmental Protection Agency and the De-

partment of the Army, Determination of Mit-

igation Under the Clean Water Act Section

404(b)(1) Guidelines (Feb. 6, 1990) .............0000.... 15

Mersel, Matthew K., U.S. Army Corps of Engi-

neers, Development of National OHWM De-

lineation Technical Guidance (Mar. 4, 2014)....6, 7

Newport Banning Ranch, Draft Envtl. Impact

a eee 26, 27

Questions and Answers on RGL 08-02..................... 26

Sunding, David & David Zilberman, The Eco-

nomics of Environmental Regulation by Li-

censing: An Assessment of Recent Changes to

the Wetland Permitting Process, 42 NAT. RE-

ee Ce ecrinccitectennteciietntnsnntinnenmnideansemes 33

U.S. Army Corps of Engineers, Civil Works

Budget and Performance, Budget Strong-

Point FY 2016, Regulatory (Feb. 2, 2015)........... 11

U.S. Army Corps of Engineers, Jurisdictional

Determination Form Instructional Guide-

I I Tn ccinnsitenseuninbanininmnmncenes 12

U.S. Army Corps of Engineers, ORM Jurisdic-

tional Determinations and Permit Decisions,

http://corpsmapu.usace.army.mil/

cm_apex/f?p=340:11:0::NO ........ eee cccceeceeeeeeeeeeee 12

U.S. Army Corps of Engineers, ERDC/EL TR-

10-16, Regional Supplement to the Corps of

Engineers Wetland Delineation Manual:

Midwest Region (Version 2.0), (Aug. 2010) ....... 5, 6

U.S. Army Corps of Engineers, ERDC/EL TR-

12-1, Regional Supplement to the Corps of

Engineers Wetland Delineation Manual:

Northcentral and Northeast Region (Version

EIEN, TEI chesernnisnrpnieinnciitagnemidnitnimmenimneetenneds 6

U.S. Army Corps of Engineers, Regulatory

Guidance Letter No. 08-02, Jurisdictional

Determinations (June 26, 2008)................... 10, 11,

U.S. Army Corps of Engineers, South Atlantic

Division, Table of Appeals, http://www.sad.

usace.army.mil/Missions/Regulatory/

RegulatoryAppeals/TableofAppeals.aspx............ 35

U.S. EPA & U.S. Department of the Army, Eco-

nomic Analysis of the EPA-Army Clean Wa-

ter Rule (May 20, 2015), EPA-HQ-OW-2011-

U.S. General Accounting Office, GAO-04-297,

Waters and Wetlands: Corps of Engineers

Needs to Evaluate Its District Office Practices

in Determining Jurisdiction (Feb. 2004)............... 6

Wakeley, James S., U.S. Army Engineer Re-

search & Development Center, ERDC/EL

TR-02-20, Developing a “Regionalized” Ver-

sion of the Corps of Engineers Wetlands De-

lineation Manual: Issues and Recommenda-

TTT A NCEE TTT 6

INTERESTS OF AMICI CURIAE

Amici represent a broad cross-section of public

and private sector entities subject to Clean Water

Act (“CWA” or “the Act”) regulation.! Amici fre

quently need AJDs from the Corps, and in this brief

detail how AJDs directly affect choices they and oth-

ers must-make about their operations.

The Foundation for Environmental and Economic

Progress (“FEEP”) is a national coalition of landhold-

ing companies formed in 1989 to address federal en-

vironmental policies that affect the use of land and

water. Its members are planned community devel-

opers, and companies engaged in forestry, mining,

and agriculture. Foundation members own land in

44 states, and are deeply committed to environmen-

tal stewardship of their property.

The Utility Water Act Group (““UWAG’) is a vol-

untary, ad hoc, non-profit, unincorporated group of

210 individual energy companies which own and op-

erate over fifty percent of the nation’s electric gener-

ating capacity, and three national trade associations

which represent investor-owned utilities, publicly-

owned utilities, and non-profit rural cooperatives.

Supplying electricity throughout the country re-

quires the construction and maintenance of electric

generation facilities, substations, and thousands of

! Pursuant to Rule 37.6 of this Court, amici state that no coun-

sel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person oth-

er than amici, their members, or their counse] made a mone-

tary contribution to its preparation or submission.

miles of transmission and distribution lines and as-

sociated access roads, which must sometimes abut,

rely on, or cross wetlands and other “waters of the

United States.” The administration of the CWA sec-

tion 404 regulatory program, insofar as it affects the

electric utility industry, is important not only to

UWAG members but also to the public at large,

whose health, safety and general welfare depend on

the reliable delivery of eleciricity.

All parties have consented to the filing of this

brief.

SUMMARY OF ARGUMENT

The public cannot identify what lands and waters

constitute “waters of the United States” subject to

CWA regulation. So the Corps has established a

formal process to investigate a particular piece of

property and then prepare an AJD that depicts in

great detail — inches not acres — the boundaries of

“waters of the United States.” AJDs are explicitly

“binding” on the Corps and the U.S. Environmental

Protection Agency (“EPA”) and will represent the

government’s position in subsequent litigation. Re-

cipients use AJDs to plan the use of property, often

in an effort to avoid or minimize impacts to “waters

of the United States,” and thereby avert or limit lab-

yrinthine CWA permit procedures. AJDs are also

relied upon in real property transactions, to establish

value for tax and lending purposes, and by state and

local governments to determine compliance with

their own regulatory programs. Equally important,

AJDs expose recipients to enhanced penalties if the

government initiates enforcement. Yet, if an AJD

wrongly asserts CWA jurisdiction, what “remedy in a

court” is adequate other than immediate review of

the AJD? None.

APA Section 704 provides for judicial review of all

final agency actions for which there is no other ade-

quate remedy in a court. 5 U.S.C. § 704. The gov-

ernment argues AJDs are not judicially reviewable

because they do not direct recipients to take any par-

ticular action. But AJDs establish sharp lines that

have direct, powerful, and coercive effects on how

their recipients proceed. Further, the government’s

proposed remedies — (1) first applying for a permit

and then suing to prove no permit is needed, or (2)

triggering an enforcement action by filling areas

deemed jurisdictional and then litigating jurisdiction

as a defense to the enforcement action — are nonsen-

sical, time-consuming, and very costly. Certainly

they are not adequate.

The government — as it has shown over the years

— is prone to expansive jurisdictional claims. Con-

gress enacted the judicial review provisions of the

APA to provide a check on administrative extrava-

gance. As a matter of sound statutory interpreta-

tion, sensible CWA policy, and fundamental fairness

to citizens, the Court should hold that AJDs are sub-

ject to judicial review.

BACKGROUND:

WHAT APPROVED JURISDICTIONAL DETERMINA-

TIONS ARE AND WHY THEY ARE IMPORTANT.

The CWA is a strict liability statuie that prohib-

its the “discharge” of any pvu!lutant into “navigable

waters” except in compliance with a permit issued

under the Act. 33 U.S.C. § 1311. Section 404 au-

thorizes the Corps to issue permits for the “discharge

of dredged or fill material,” including certain earth-

moving activities such as the peat mining proposed

in the case at bar. 33 U.S.C. § 1344.2 The term

“navigable waters” means “the waters of the United

States, including the territorial seas.” 33 U.S.C. §

1362(7). Violators of the Act are subject to civil pen-

alties up to $37,500 per day, per violation, 78 Fed.

Reg. 66,648, 66,647 (Nov. 6, 2013), and imprison-

ment for up to three years, 33 U.S.C. § 1319(c)(2), or

both. EPA and the Corps also have powerful admin-

istrative enforcement tools such as compliance or-

ders, notices of violation, and cease-and-desist or-

ders, 33 U.S.C. § 1319(a); 33 C.F.R. § 326.3(c), and

can assess administrative penalties up to $187,500.

78 Fed. Reg. at 66,647 (citing 33 U.S.C. §

1319(g)(2)(B)).

Accordingly, entities conducting any kind of activ-

ity on the landscape must tread lightly, taking care

to identify any areas that may be deemed “navigable

waters’ and either avoiding such areas or obtaining

a permit if they plan to discharge to them. The prob-

2 The CWA Section 404 permit program is administered jointly

by the Corps and EPA.

lem is that in many cases it is very difficult to de-

termine whether land contains “navigable waters,”

and if it does, the boundaries of those waters.’ Iden-

tifying “navigable waters” involves a two-part in-

quiry — (1) whether the area in question meets the

physical criteria to be a wetland or nonwetland wa-

ter (e.g., a tributary) within the meaning of applica-

ble regulations, guidance, and policy, and (2) wheth-

er the wetland or nonwetland water meets the legal

criteria to be “navigable waters.”

Of course, a landowner who finds herself knee-

deep in a swamp should be expected to surmise she

may be in an area deemed a wetland subject to Corps

regulation. But where does the wetland end? As

this Court has noted, “[T]he transition from water to

solid ground is not necessarily or even typically an

abrupt one [w]here on [the] continuum to find the

limit of ‘waters’ is far from obvious.” United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 132

(1985).

Physical Uncertainty. Importantly, many are-

as that do qualify as “wetlands” under federal guid-

ance are not at all like swamps. Under Corps guid-

ance, an area may be deemed a “wetland” even if it is

never wet at the surface. The underground water

table need only rise to within 12 inches of the surface

for a few days each year.4 Thus, it is not surprising

3 “The reach of the Clean Water Act is notoriously unclear.”

Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (Alito, J., concur-

ring).

4 See, e.g., USACE, ERDC/EL TR-10-16, Regional Supplement

to the Corps of Engineers Wetland Delineation Manual: Midwest

that many people have no idea portions of their

backyard qualify as wetlands. The Corps knows this

is a problem. James S. Wakeley, USACE, ERDC/EL

TR-02-20, Developing a “Regionalized” Version of the

Corps of Engineers Wetlands Delineation Manual:

Issues and Recommendations, 13 (Aug. 2002) (wet-

land conditions “may not be directly observable in

the field and may require long-term study or special-

ized training and equipment to evaluate [] a particu-

lar site.”).

Nonwetland waters — such as the dry washes, ar-

royos and coulees that criss-cross desert landscapes —

are similarly challenging. The Corps uses the “Ordi-

nary High Water Mark” (““OHWM?”) to identify such

linear features, but there is no consistent method for

recognizing the OHWM. One Corps official told the

then U.S. General Accounting Office “that if he asked

three different district staff to make a jurisdictional

determination, he would probably get three different

assessments of the ordinary high water mark.” U.S.

Gen. Accounting Office, GAO-04-297, Waters and

Wetlands: Corps of Engineers Needs to Evaluate Its

District Office Practices in Determining Jurisdiction,

22 (Feb. 2004). The problem persists to this day.

See Matthew K. Mersel, USACE, Development of Na-

Region (Version 2.0), 75 (Aug. 2010); USACE, ERDC/EL TR-12-

1, Regional Supplement to the Corps of Engineers Wetland De-

lineation Manual: Northcentral and Northeast Region (Version

2.0), 85 (Jan. 2012). In the interest of brevity, the hyperlinks to

the websites for the Regional Supplements, and other sources

in this brief, have not been included since many documents are

easily obtainable via internet search engine.

tional OHWM Delineation Technical Guidance, slide

3 (Mar. 4, 2014) (“vague definition” leads to

“[iJnconsistent interpretations of OHWM concept”

which leads to “[i]Jnconsistent field indicators and de-

lineation practices”).

Legal Uncertainty. Even if the land in question

has the physical characteristics of wetlands or non-

wetland waters, significant uncertainty exists

whether the property meets the legal criteria to be

CWA “navigable waters.” The reach of the CWA has

been controversial since the statute was enacted in

1972.5 The Court’s most recent CWA jurisdictional

cases rejected the agencies’ expansive jurisdictional

theories. Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001)

(“SWANCC”) (Corps jurisdictional claim over remote

ponds impinges on States’ traditional land and water

authority contrary to explicit CWA language); Ra-

panos v. United States, 547 U.S. 715 (2006) (rejecting

jurisdiction over “[w]etlands with only an intermit-

tent, physically remote hydrologic connection to ‘wa-

ters of the United States,” id. at 742 (plurality op.);

rejecting Corps standard that “leave[s] wide room for

regulation of drains, ditches, and streams remote

from any navigable-in-fact water and carrying only

minor water volumes towards it . id. at 781

(Kennedy, J., concurring)).

5 See, e.g., Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp.

685 (D.D.C. 1975); Tabb Lakes, Ltd. v. United States, 715 F.

Supp. 726 (E.D. Va. 1988), affd, 885 F.2d 866 (4th Cir. 1989);

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997).

Earlier this year, the agencies promulgated a new

rule announcing a new theory of jurisdiction that

would recapture many areas this Court said were out

of bounds in SWANCC and Rapanos. Dep't of the

Army, Corps of Engrs & EPA, Clean Water Rule:

Definition of “Waters of the United States,” Final

Rule, 80 Fed. Reg. 37,054 (June 29, 2015) “WOTUS

Rule”). That rule has been stayed by court order,

but if it ever takes effect, it will only compound the

confusion.

The rule defines “tributary” to mean “a water that

contributes flow” and has the physical indicators of

bed, banks, and OHWM ~— a definition so broad that

some have read it to capture municipal stormwater

conveyances (“MS4s”), which consist of a network of

“drainage systems, municipal streets, catch basins,

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

drains.” 40 C.F.R. § 122.26(b)(8). If the storm sew-

ers are “waters of the United States,” then the gov-

ernment would have the authority to regulate dis-

charges to sewer systems (in addition to discharges

from them).?7 While the rule expressly excludes

8 In re EPA & Dep't of Def., 803 F.3d 804 (6th Cir. 2015).

7 Jeremy P. Jacobs, Concrete-lined river seen as regulatory

quagmire for EPA, E&E GREENWIRE, Feb. 1, 2016, at 4 (“[I]t’s

unclear whether all of the countless creeks, channels, and other

stormwater conveyances stemming from the [Los Angeles]

[R]iver that are almost always bone dry would qualify [as wa-

ters of the United States].”); see also Federal StormWater Asso-

ciation Comments on Proposed Definition of “Waters of the

United States,” at 10 (Nov. 14, 2014), EPA-HQ-OW-201 1-0880-

15161 (“the overly broad definition of ‘tributary’ may im-

stormwater control features “created in dry land,” 80

Fed. Reg. at 37,105, the term “dry land” has not been

defined.

Another new jurisdictional category in the

WOTUS Rule (“adjacent waters”) appears to reach

many industrial basins, process water ponds, and

other water features common in industrial opera-

tions. These features bear no resemblance to the

navigable waters that Congress intended the CWA to

protect. But if they are “waters of the United

States,” routine operation, maintenance, and repair

at these facilities will require permits. Thus, it is

critical to determine whether such areas are jurisdic-

tional.

In light of these uncertainties, a layperson cannot

confidently identify “waters of the United States” by

herself. While “most laws do not require the hiring

of expert consultants to determine if they even apply

to you or your property,” Hawkes Co. v. United States

Army Corps of Engineers, 782 F.3d 994, 1003 (8th

Cir.) (Kelly, J., concurring), cert. granted, 136 S. Ct.

615 (2015), the CWA is an exception. Even hiring an

expert will not provide comfort because the Corps (or

EPA) may not agree with the expert, and the agen-

cies’ regulations interpreting jurisdictional waters

are sO expansive and vague as to invite such disa-

greements. In United States v. Lipar, for example,

the landowner began development in an area a con-

sultant had identified as nonjurisdictional. No. H-

properly treat MS4s not as conveyance systems but as jurisdic-

tional waters.”).

10-1904, 2015 U.S. Dist. LEXIS 115821, at *2-3 (S.D.

Tex. Aug. 30, 2015), appeal docketed, No. 15-20625

(5th Cir. Oct. 29, 2015). EPA, however, disagreed,

and brought an enforcement action. Jd. at *11. After

five years of litigation, the district court determined

that the area was not jurisdictional. Jd. at *13.8

Amici are aware of numerous similar situations in

which a landowner relied in good faith on an expert's

report to avoid jurisdictional waters by staying with-

in areas the consultant had concluded were not “wa-

ters of the United States,” only to face an enforce-

ment action claiming the areas in question were in

the agency’s view jurisdictional.

AJDs Dispel Uncertainty. Accordingly, the on-

ly way a person can be confident the Corps and EPA

will not question a jurisdictional determination on a

given piece of property is to ask the Corps to issue an

AJD. An AJD is a “definitive, official determination

that there are, or that there are not jurisdictional

‘waters of the United States’ on a site.” USACE,

Regulatory Guidance Letter No. 08-02, Jurisdictional

Determinations, at 5 (June 26, 2008) (“RGL 08-02”).

it “precisely identifies the limits of those waters

[and] can be relied upon by a landowner, permit ap-

plicant, or other ‘affected party’ for five years.”

Id. at 1, 2.9 An AJD may be requested by a landown-

8 See also Compl. § 46, Duarte Nursery, Inc. v. U.S. Army Corps

of Eng'rs, 17 F. Supp. 3d 1013 (E.D. Cal. 2014) (No. 2:13-cv-

02095-KJM-AC).

® In “extraordinary circumstances, such as an [AJD] based on

incorrect data provided by a landowner or consultant,” an AJD

may be revised. RGL 08-02 at 2.

er, permit applicant or other “affected party”’® and

once issued is “binding on the Government and rep-

resent[s] the Government’s position in any subse-

quent federal action or litigation regarding the

case.”'! In particular it “can be used and relied on

if a CWA citizen’s lawsuit is brought challeng-

ing the legitimacy of that JD or its determinations.”

RGL 08-02 at 2. AJDs are “final agency action” un-

der the Corps’s regulations, 33 C.F.R. § 320.1(a)(6),

and may be appealed through the Corps’s adminis-

trative appeals process, 33 C.F.R. Part 331, Appen-

dix C, as was the AJD in this case.

For Fiscal Year 2016, Congress appropriated $200

million to make sure the Corps has the resources

necessary to make these detailed determinations. !?

In preparing an AJD, the Corps conducts an exten-

sive investigation of the chemical, biological, hydro-

logical and landscape characteristics of the site in

10 “Affected party” means “a permit applicant, landowner, a

lease, easement or option holder (i.e., an individual who has an

identifiable and substantial legal interest in the property)...”

33 C.F.R. § 331.2.

11 Memorandum of Agreement Between the Department of the

Army and the Environmental Protection Agency Concerning

the Determination of the Geographic Jurisdiction of the Section

404 Program and the Application of the Exemptions Under Sec-

tion 404(f) of the Clean Water Act at 1 (Jan. 19, 1989) (“1989

MOA”).

12 Consolidated Appropriations Act, 2016, Pub. L. No. 114-113,

Division D, Title I, 129 Stat. 2242, 2399 (2015). These monies

will support the completion of “136,000 final actions,” approxi-

mately 56,000 of which are jurisdictional determinations.

USACE, Civil Works Budget and Performance, Budget Strong-

Point FY 2016, Regulatory (Feb. 2, 2015).

question. The site work is carried out in accordance

with a 60-page “Jurisdictional Determination Form

Instructional Guidebook,” recorded on a seven-page

“Approved Jurisdictional Determination Form,” and

posted to a public website. USACE, ORM Jurisdic-

tional Determinations and Permit Decisions,

http://corpsmapu.usace.army.mil/cm_apex/f?p=340:1

1:0::NO.

For example, on one 6,500-acre site depicted in

Exhibit 1 below, the Corps determined there were

1,458 acres of “waters of the United States” scattered

among 165 discrete wetland polygons ranging in size

from 0.03 acre to 354.7 acres.

Exhibit 1

Uplands

Wetlands

Another jurisdictional determination — on an 1,800-

acre site in Arizona — claimed jurisdiction over 43

discrete drainages, ranging in depth from half an

inch to 45.8 inches, in width from 3 to 50 feet, and in

length from 100 to 9,160 feet. Determinations on

smaller properties are similarly detailed. A property

in Virginia, 66 acres in size, contained 16 discrete

wetland areas totaling 28 acres, the smallest being

0.003 acre or 150 square feet. In short, an AJD is a

highly detailed, site-specific depiction of CWA juris-

diction on a given property.

For those who can make do with less precision,

the Corps offers a Preliminary Jurisdictional Deter-

mination (“PJD”). PJDs are “written indications that

there may be waters of the United States [including

wetlands] on a parcel or indications of the approxi-

mate location(s) of waters of the United States _...”

33 C.F.R. § 331.2 (emphases added). In contrast to

an AJD, a PJD is “advisory in nature,” id., “non-

binding,” and cannot be appealed. RGL 08-02 at 3.

People choose AJDs over PJDs when they want to

be sure they can rely on the precise lines the Corps

has drawn. They may want to establish the value of

the land for tax purposes or perhaps in connection

with the conveyance of the property. They may be

evaluating options for future uses of the property, or

designing a site plan for immediate development.

The AJD provides certainty where previously the ex-

istence, extent, and location of CWA jurisdiction was

uncertain. Accordingly, the AJD becomes the basis

for the choices the landowner, operator, lender, local

regulator or other “affected party” makes about the

property.

In this way, the AJD is a key instrument advanc-

ing the overarching policy of the Section 404 pro-

gram, viz: to avoid impacts to jurisdictional features

whenever possible.'3 By telling the landowner where

jurisdictional features lie, the AJD allows a project

proponent to avoid or minimize adverse impacts. In

the best case, the site development plan can avoid all

adverse impacts, which means the project proponent

does not have to pursue a permit, and the Corps does

not have to process an application. A public policy

trifecta: important aquatic features are saved, the

developer is spared the time and expense of the per-

mit process, and the Corps’s workload is reduced.

ARGUMENT

Pursuant to the APA, “final agency action for

which there is no other adequate remedy in a court

[is] subject to judicial review.” 5 U.S.C. § 704. Like

agency action previously held to be reviewable under

the APA by this Court, AJDs have immediate and

substantial consequences for the recipient and if in-

correct, need to be set aside promptly by the Judicial

Branch. Yet the government persists in arguing that

an AJD is not final, and that APA review is barred

because the “affected party” has two other “ade-

13 Memorandum of Agreement Between the EPA & the Dep't of

the Army, The Determination of Mitigation Under the Clean

Water Act Section 404(b)(1) Guidelines, at 2 (Feb. 6, 1990); see

also 40 C.F.R. §§ 230.10 et seg.

quate” remedies in a court. The Court of Appeals

properly rejected the government’s cynical argu-

ments, and this Court should affirm that, once an

AJD has been through the administrative appeals

process, the recipient may challenge the govern-

ment’s assertion in court. Allowing judicial review

will cultivate administrative consistency, provide cit-

izens a means of redress for unlawful agency deter-

minations, and foster public confidence in the fair-

ness of the regulatory regime.

I. Approved Jurisdictional Determinations

Are Final Agency Action Under the Ad-

ministrative Procedure Act.

In construing the APA’s language, this Court has

emphasized that the “legislative material elucidating

[the APA] manifests a congressional intention that it

cover a broad spectrum of administrative actions,

and this Court has echoed that theme by noting that

the [APA’s] ‘generous review provisions’ must be giv-

en a ‘hospitable’ interpretation.” Abboti Labs. v.

Gardner, 387 U.S. 136, 140-41 (1967) (citations and

footnote omitted). 14

14 The APA’s generous review provisions were also clearly on

the Court’s mind during the Sackett oral argument. Tr. of Oral

Arg. at 41, 50, Sackett v. EPA, 132 S. Ct. 1367 (2012) (No. 10-

1062) (“Sackett Oral Arg. Tr.”) (Breyer, J.) (‘for 75 years the

courts have interpreted statutes with an eye towards permit-

ting judicial review, not the opposite...the government here

is fighting 75 years of practice ”).

This Court’s cases have consistently held that

agency action is final if it is definitive and has a di-

rect, immediate, and practical impact on the parties.

See Frozen Food Express v. United States, 351 U.S.

40, 44 (1956) (agency action is final if it “has an im-

mediate and practical impact”); Abbott Labs., 387

U.S. at 151-52 (agency action is reviewable if it is

“definitive” and [has] a “direct and immediate ef-

fect on the day-to-day business of [the complaining

parties].”); FTC v. Standard Oil Co., 449 U.S. 232,

239 (1980) (quoting Abbott Labs.); Bennett v. Spear,

520 U.S. 154, 178 (1997) (agency action reviewable if

it is action “by which ‘rights or obligations have been

determined’ or from which ‘legal consequeuces will

flow”’).

The government argues that agency ac«ion is not

reviewable unless it directs a citizen to take action.

Pet’r’s Br. at 17, 26, 27, 31, 42, 43, 44. But the key

question from the cases is whether the challenged

action has a practical effect on day-to-day operations

or becomes the basis for ordering the recipient’s af-

fairs. Certainly government action that directs a

particular recipient to take action is reviewable un-

der the standard, see Sackett v. EPA, 132 S. Ct. 1367

(2012) (holding Compliance Order directing respond-

ent to “restore” land is reviewable), but, contrary to

the government’s argument, that is not the only kind

of action that warrants APA review.

A. Agency Action Is Final If It Is Defini-

tive and Has a Direct, Immediate, and

Practical Impact.

APA caselaw demonstrates that an AJD’s imme-

diate practical effects are more than sufficient to sat-

isfy APA judicial review requirements.'!5 In Frozen

Food Express, motor carriers sought judicial review

of an Interstate Commerce Commission (“ICC”) de-

termination that certain commodities did not qualify

for an agricultural exemption. 351 U.S. at 41. Simi-

lar to jurisdictional determinations, the order “would

have effect only if and when a particular action was

brought against a particular carrier.” Abbott Labs.,

387 U.S. at 150 (summarizing the facts in Frozen

Food Express). Yet, the Court noted:

The determination by the Commission that a

commodity is not an exempt agricultural

product has an immediate and practical im-

pact _..{It] warns every carrier, who does not

have authority from the Commission to

transport those commodities, that it does so at

the risk of incurring criminal penalties ..The

determination is not therefore abstract,

theoretical or academic _ ..[It] is, indeed, the

basis for carriers in ordering and arranging

their affairs.

16 Courts agree and the government concedes that AJDs are the

consummation of the agency’s decisionmaking process. Belle

Co., L.L.C. v. U.S. Army Corps of Eng’rs, 761 F.3d 383, 388 (5th

Cir. 2014); Fairbanks N. Star Borough v. U.S. Army Corps of

Eng’rs, 543 F.3d 586, 591 (9th Cir. 2008); Pet’r’s Br. at 26. No

further discussion regarding this issue, therefore, is necessary.

Frozen Food Express, 351 U.S. at 43-44. An AJD

carries a similar warning, and, like the ICC order,

becomes the basis for recipients in ordering their af-

fairs. See also Columbia Broad. Sys., Inc. v. United

States, 316 U.S. 407, 418 (1942) (people “conform

their conduct to regulations by governmental author-

ity so as to avoid the unpleasant legal consequences

which failure to conform entails”).

Likewise, in Abbott Labs., the Commissioner of

Food and Drugs issued regulations requiring phar-

maceutical companies to put generic names on labels

and advertisements describing the names and ingre-

dients of their drugs. The government argued that

although the requirements were issued as regula-

tions, they were not reviewable because the rules

could only be enforced by civil or criminal actions

brought by the Attorney General. But the Court held

the rules were nonetheless reviewable because “they

have the status of law and violations of them carry

heavy criminal and civil sanctions.” 387 U.S. at 152.

Therefore, they created a “dilemma” that had a “di-

rect effect on the day-to-day business” of the drug

companies. Id. “Either they must comply with the

requirement and incur the costs or they must

follow their present course and risk prosecution.” Id.

(internal quotation marks omitted).

The recipient of an erroneous AJD faces a similar

dilemma: either acquiesce in a jurisdictional deter-

mination she believes is incorrect (and forgo use of

lands erroneously characterized as “waters of the

United States” or incur the costs of applying for a

permit she should not be required to obtain), or initi-

ate development and risk facing “serious criminal

and civil penalties.” Jd. at 153. The Court saw judi-

cial review as a solution to the dilemma in Abbott

Labs.; similar reasoning applies here.

More recently, the Court held in Bennett that a

Fish and Wildlife Service Biological Opinion (“BO” or

“Opinion”) concerning the operation of a Bureau of

Reclamation dam was final agency action within the

meaning of the APA. 520 U.S. 154 (1997). The gov-

ernment argued that the BO was not final agency

action because the Bureau was “not legally obligat-

ed” to adopt the “reasonable and prudent alterna-

tives” identified by the BO. Id. at 177 (quoting Br.

for Resp’ts at 33). Importantly, the Bennett Court

recognized that, while the Opinion “theoretically

serves an ‘advisory function’ in reality it has a

powerful coercive effect.” Id. at 169 (internal citation

omitted). “The action agency is technically free to

disregard the Biological Opinion and proceed with its

proposed action, but it does so at its own peril (and

that of its employees) [risking] substantial civil

and criminal penalties, including imprisonment.” Id.

at 170. Here, as in Bennett, while the Hawkes Co. is

technically free to disregard the AJD and proceed

with its proposed action, it does so at its own peril,

risking substantial civil and criminal penalties for an

unauthorized discharge.

The government tries to avoid the power of these

seminal cases by analogizing AJDs to “informal

agency opinion letters and other statements.” Pet’r’s

Br. at 33. First, as discussed above, there is nothing

“informal” about AJDs. They are the product of a

carefully prescribed site-specific investigation the re-

sults of which are reported in a prescribed format on

a prescribed form. And they are not mere opinions;

they bind the agencies.! But, more importantly, the

form of agency action is not dispositive. Even an “in-

formal decision” by an agency may be subject to judi-

cial review. Harrison v. PPG Indus., Inc., 446 U.S.

578 (1980) (recognizing a letter, written by an EPA

Regional Administrator notifying PPG that their

waste-heat boilers are subject to the Clean Air Act, is

reviewable under the APA).!7 Thus, any implication

by Petitioner that informal agency action is never

subject to judicial review is false. 18

16 Indeed, AJDs are far more formal, and require far more in-

vestigation, than the Compliance Order held reviewable in

Sackett which was issued “on the basis of any information

available” to EPA. 33 U.S.C. § 1319(a).

17 Justice Stevens explained that the “informal advice” was re-

viewable because, among other reasons, “PPG would have to

risk sizeable penalties in order to challenge EPA’s determi-

nation in enforcement proceedings.” Harrison, 446 U.S. at 603-

04 (Stevens, J., dissenting on other grounds).

18 In a similar vein, the government argues that AJDs are not

reviewable because they are not self-executing and lack inde-

pendent legal effect. But the Court has repeatedly rejected

these attempts to bypass the APA. Sackett, 132 S. Ct. at 1373

(‘the APA provides for judicial review of all final agency ac-

tions, not just those that impose a self-executing sanction.”);

Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget

Transatlantic, 400 U.S. 62, 70-71 (1970) (rejecting the “argu-

ment that the order lacked finality because it had no independ-

ent effect on anyone”).

B. Approved Jurisdictional Determina-

tions Have the Requisite Effects to Be

Final Agency Action.

The government tries to downplay the importance

of AJDs. It characterizes them as a “salutary admin-

istrative practice” voluntarily undertaken for the

benefit of the public — nothing more than the Corps’s

“non-binding view” of CWA jurisdiction at a particu-

lar location. Pet’r’s Br. at 20, 23, 41. But this is just

wrong. An AJD is binding. See supra note 11 and

accompanying text; RGL 08-02 at 2 (an AJD “can be

used and relied on if a CWA citizen’s lawsuit is

brought challenging the legitimacy of that JD or

its determinations.”). The government having bound

itself to their determination, expects that the “affect-

ed party” will rely on it. As the government explains

in its brief, an AJD provides “the property owner

more information on which to base its own assess-

ment of its statutory obligations” and therefore “may

influence the landowner’s choice among alternative

courses of conduct.” Pet’r’s Br. at 36-37. And, as de-

scribed below, it does. Indeed, why would Congress

appropriate and the Corps spend millions of taxpayer

dollars on completing AJDs if they were as ineffectu-

al as the government now claims?!9

19 Supra note 12.

AJDs Affect Site Development Plans. In

keeping with the Section 404 policy to avoid and min-

imize wetland impacts, the “affected party” typically

uses the AJD to design a site plan that maximizes

avoidance. Exhibit 2 demonstrates how this works.

Exhibit 2-A depicts the location of 14 discrete wet-

land areas across a 375-acre site in the southeastern

United States. The wetlands range in size from 0.11

acre to 2.7 acres. Exhibit 2-B shows that the devel-

opment plan for the site was strongly influenced by

the jurisdictional map. Thus, the street in the north

end terminates in a cul-de-sac to avoid wetland A;

the street in the northeast side curves around wet-

lands B and D; a gap in development appears in the

center of the map to avoid wetlands G and N; and the

building lots to the southwest are arranged to avoid

impacts to wetlands H, I, J, K, L, and M.

TTT

ITT

Ue KA

= Sout OK

= 24ul wees

5 =vonrnsie Mint ‘

'OGse08 SEAT:

Vz qIGz"

AJDs Affect Property Value. AJDs can tangi-

bly affect a person’s day-to-day operations outside of

the development setting as well. In one case of

which Amici are aware, the appraisal value of mort-

gaged land in the Mid-Atlantic was reduced from

over $32 million to about $1 million when the Corps

determined that the land contained “waters of the

United States,” and the lender demanded additional

collateral. AJDs may impact property values, there-

by affecting tax assessments and even in some cases

triggering U.S. Securities and Exchange Commission

reporting requirements under 17 C.F.R. § 229.103(5).

See, e.g., Bergen Cnty. Assocs. v. Borough of E. Ruth-

erford, 12 N.J. Tax 399, 408, 411, 418 (N.J. Tax Ct.

1992) (land that had been valued at $47,500,000 re-

duced to $2,029,800 based on determination that

land was jurisdictional). Indeed, the potential for

these kinds of effects is borne out by a declaration

prepared in response to the government’s brief and

discussed more fully infra. Declaration of Professor

David L. Sunding, Ph.D. { 7 (attached) (“Sunding

Decl.”) (“jurisdictional determination[s] that increase

the expected cost of development will reduce the

property's current market value.”).

AJDs Affect State and Local Regulatory Re-

quirements. Other effects abound. In Louisiana,

for example, an AJD is a material fact that must be

disclosed in real estate transactions. If “any part of

the property [has] been determined a wetland by the

[Corps],” then the seller must disclose it to the buyer.

Louisiana Property Disclosure Document for Resi-

dential Real Estate, at 1 of 4 (Rev. 02/01/15); LA.

REV. STAT. ANN. § 9:3198(A)(1) (2013). Some states

require AJDs before issuing water quality certifica-

tions and “base their fees §_ on the extent of impacts

to waters of the United States.” Questions & An-

swers on RGL 08-02. ai 8.

State and local agencies in South Carolina rely on

Corps jurisdictional determinations in implementing

their own programs. For example, the City of

Charleston uses the “Corps of Engineers approved

wetland delineation line” to calculate minimum lot

sizes and to locate required buffers around jurisdic-

tional areas. City of Charleston, Subdivision Con-

cept Plan Submittal Checklist, at 2. Horry County

and the City of Beaufort require a verified Corps ju-

risdictional determination as a condition precedent of

plat approval.2° South Carolina’s Department of

Health and Environmental Control (“DHEC”) relies

on AJDs in authorizing stormwater discharges from

construction sites. S.C. DHEC, National Pollutant

Discharge Elimination System General Permit for

Stormwater Discharges from Construction Activities,

§ 2.6.2 (2013). Small changes in the size and location

of Corps jurisdiction can affect DHEC permit re-

quirements. See Deerfield Plantation Phase II B

Prop. Owners Ass'n v. S.C. DHEC, 777 S.E. 2d 817

(S.C. 2015). Likewise, in California, local land use

agencies use AJDs to assess aquatic features and

calculate mitigation requirements under the Califor-

nia Environmental Quality Act. See Newport Ban-

2 Horry Cnty., S.C., Code of Ordinances, ch. 18, art. 2, §§ 3-

4(C), 4-1 (2015) and Beaufort, S.C., Unified Development Ordi-

nance, App. at 9-10 (revised Sept. 14, 2012).

ning Ranch, Draft Envtl. Impact Report (Sept. 8,

2011). |

AJDs Can Affect Penalties. Especially signifi-

cant is an AJD’s potential effect on civil and criminal

penalties when the government brings an enforce-

ment action.2! 33 U.S.C. § 1319(c)(2). The govern-

ment says that the civil penalty and criminal provi-

sions do not “assign any particular evidentiary

weight to” a jurisdictional determination. Pet’r’s Br.

at 32. The provisions do, however, emphasize

“knowledge” and “good faith efforts to comply” as im-

portant factors in determining penalties. 33 U.S.C.

§1319 (a), (c). Moreover, the government’s brief ad-

mits that “[a] landowner’s knowledge that the

agency believes the CWA applies could be offered

as evidence of the owner’s knowledge of the CWA’s

applicability,” Pet’r’s Br. at 32, and the government

acknowledged during oral argument in Sackett that

courts commonly impose higher penalties based on

knowledge: “[I]t is often the case that what dis-

trict courts will do is impos[e] a greater penalty

because it shows greater culpability to continue

with the violation after you’ve been warned.” Sackett

Oral Arg. Tr. at 29.22 Knowledge is at the crux of the

21 The risk of criminal penalties is not theoretical. See, e.g.,

United States v. Pozsgai, 999 F.2d 719, 723 (3d Cir. 1993) (three

years imprisonment); United States v. Ellen, 961 F.2d 462, 464

(4th Cir. 1992) (six months’ imprisonment).

22 See Borden Ranch P’ship v. U.S. Army Corps of Eng'’rs, 261

F.3d 810, 816-819 (9th Cir. 2001) (significant civil penalty for

ignoring jurisdictional features on wetland delineation map),

affd, 537 U.S. 99 (2002); United States v. Feinstein Family

P’ship, No. 96-232-CIV-FTM-24(D), 1998 U.S. Dist. LEXIS

penalty provisions. Therefore, one cannot imagine a

future enforcement action in which a positive AJD

would not be offered as evidence to demonstrate the

defendant's knowledge that the CWA applied to his

or her property.

AJDs Affect Permit Type and Mitigation

Costs. By identifying the limits of jurisdictional wa-

ters on a property, an AJD directly affects whether

the landowner may qualify for a streamlined general

permit, such as a nationwide permit (“NWP”). NWPs

are available for certain projects that have “only

minimal adverse environmental effects,” 33 U.S.C. §

1344(e), and as the Corps has acknowledged “[m]any

project proponents will design their projects to com-

ply with the [acreage] limit so that they can qualify

for an NWP and receive authorization more quickly

than they could through the standard permit pro-

cess.” 65 Fed. Reg. 12,818, 12,821 (Mar. 9, 2000).

The more jurisdictional waters on a given parcel of

land, the harder it will be for a landowner to qualify

for an NWP Therefore, by identifying the extent of

jurisdictional areas, an AJD “directly affect{s] the in-

vestment and project development choices of those

whose activities are subject to the CWA.” See Nat7

Ass'n of Home Builders v. U.S. Army Corps of Eng’rs,

23963, at *29 (M.D. Fla. Oct. 28, 1998) (substantial civil penalty

because defendants knowingly disregarded CWA permitting

requirements); United Staves v. Key West Towers, Inc., 720 F.

Supp. 963, 965-66 (S.D. Fla. 1989) (violation of cease-and-desist

letter justifies substantial civil penalty); Hanson v. United

States, 710 F. Supp. 1105, 1109 (E.D. Tex. 1989) (substantial

administrative penalty owing in part to violation of cease-and-

desist order).

417 F.3d 1272, 1280 (D.C. Cir. 2005); see also supra

Exhibits 2-A and 2-B.

Additionally, under Corps regulations, “all miti-

gation will be directly related to the impacts of the

proposal, appropriate to the scope and degree of

those impacts.” 33 C.F.R. § 320.4(r)(2). Although

mitigation costs vary widely, mitigation provided

through mitigation banks and in-lieu-fee programs

ranges from $41,572 to $111,985 per acre of wetlands

mitigated, and from $95 to $1,000 per linear foot of

stream mitigated. 25 Thus, a legal determination of

what constitutes “waters of the United States” will

result in both physical and financial costs for the “af-

fected party.”

An AJD is, at once, a legal assertion of authority

and a detailed geographical declaration of regulated

waters whose consequences cascade throughout all

levels of federal, state, and local government. Its in-

fluence on future uses of the property is undeniable.

As was the case with the labeling requirement in

Abbott Labs., the exemption determination in Frozen

Food Express, and the Biological Opinion in Bennett,

an AJD can technically be disregarded, but only at

the peril of substantial civil and criminal liabilities.

23U.S. EPA & U.S. Dep’t of the Army, Economic Analysis of the

EPA-Army Clean Water Rule at 40 (May 20, 2015), EPA-HQ-

OW-201 1-0880-20866.

This is precisely the kind of dilemma Congress

sought to alleviate when it built the generous review

provisions into the APA.

Il. There Is No Other Adequate Remedy in a

Court for Approved Jurisdictional De-

terminations.

The APA establishes that final agency action “for

which there is no other adequate remedy in a court”

is subject to judicial review. 5 U.S.C. § 704. The

government contends there are adequate paths to

dispute an AJD that incorrectly identifies jurisdic-

tional waters. First, the government suggests that

the permitting process itself is “the primary avenue

of obtaining judicial review of a jurisdictional deter-

mination.” Pet’r’s Br. at 45. In other words, a land-

owner who disagrees with the Corps’s final determi-

nation — i.e., an AJD that has been affirmed through

the administrative appeals process, 33 C.F.R. Part

331, Appendix C — should apply for a permit, file an

administrative appeal of the permit decision, see 33

C.F.R. Part 331, Appendix A, and then sue on the

permit decision and litigate the validity of the AJD

through judicial review of the permit. Second, as an

alternative remedy, the government proposes that

the recipient of an incorrect AJD initiate develop-

ment without a permit, trigger an enforcement ac-

tion and then litigate jurisdiction as a defense in an

enforcement action. See Pet’r’s Br. at 50.

To accept the government’s argument, the Court

would have to redefine the word “adequate.”

In truth, there is no other adequate remedy in a

court. A landowner should not have to go through an

entire permit process to demonstrate that she is not

subject to the permit requirement. Moreover, the

permit application process is not a vehicle to amend

jurisdiction. It is designed to determine whether a

permit can be issued and w define the terms and

conditions of the permit, not whether jurisdiction ex-

ists in the first place. Nor is the government's sec-

ond proposed remedy any better. Forcing a citizen to

risk criminal and civil liability in order to test the

validity of a questionable government action is hypo-

critical and irresponsible. Congress, by enacting the

APA, plainly afforded a better way.

A. Judicial Review of a Permit Is Not an

Adequate Remedy for an Unlawful

Approved Jurisdictional Determina-

tion.

The government’s first alternative remedy — pur-

suing a permit and then challenging the permit in

court — assumes that everybody who seeks an AJD

wants to develop their property immediately. Just

go ahead, the government suggests, apply for a per-

mit and see what happens. If the recipient can work

with the permit, then nobody will need to address

the jurisdictional issue. Aside from the bland indif-

ference to the substantial costs and time associated

24 It “seems very strange for a party to apply for a permit o.

the ground that they don’t need a permit at all.” Sackett

Oral Arg. Tr. at 14 (Alito. J.).

with the permitting process, this notion makes no

sense for a person who seeks an AJD, for example,

before purchasing a piece of property. See, e.g., Dep't

of Transp. v. La Salle Natl Bank, 623 N.E.2d 390,

399 (Ill. App. Ct. 1993) (“[A] reasonably prudent and

knowledgeable buyer would be ‘crazy’ not to investi-

gate for the presence of jurisdictional wetlands.”).

Consigning these individuals to the permit process

and then challenging the result is no remedy.

Moreover, the permitting process is not a vehicle

to review or amend an AJD. The purpose of the

permitting process is to determine whether a permit

can be issued and to define the terms and conditions

of the permit. To be clear, an AJD, because it deter-

mines the amount and location of jurisdictional fea-

tures, will strongly influence those permit terms and

conditions. But the process of obtaining an AJD

and the process of obtaining a permit are two sepa-

rate and discrete functions. See 33 C.F.R. pt. 325;

see also 33 C.F.R. pt. 331, Apps. A, C (two separate

administrative appeals processes, as well). Further,

an AJD, once finalized, is binding on the govern-

ment. 1989 MOA at 1; RGL 08-02 at 2. It cannot be

changed — through the permit process or anywhere

else. Rather, if the Corps has issued an AJD, that

document becomes a polestar for the permit process.

Thus, rather than providing a remedy for an errone-

ous AJD, the permit process is just an expensive and

unproductive obstacle to judicial review.

The government spends four pages of its brief try-

ing to convince the Court that the 404 permit process

is a walk in the park and to discredit a study” cited

by the Court in Rapanos, 547 U.S. at 721 (plurality

op.), which showed just how difficult it is to go

through that process. Pet’r’s Br. at 46-50. Attached

to this brief as an Appendix is a declaration by the

author of that study, David L. Sunding, Professor

and Thomas J. Graff Chair of Environmental and

Resource Economics, University of California, Berke-

ley, responding briefly to the government’s allega-

tions. Paragraph four of the declaration states that

the study showed “it takes the typical project devel-

oper over 788 days to prepare and negotiate an indi-

vidual permit, and that the typical nationwide per-

mit takes 313 days to obtain.” Sunding Decl. ¥ 4.

The government criticizes the study for including

“the time the applicant takes to prepare the applica-

tion,” Pet’r’s Br. at 47 n. 10, and instead tries to focus

the Court’s attention on the amount of time the

Corps takes to process the application after it deems

the application “complete.”

But this is a red herring. The key issue under the

APA is whether the recipient has an adequate reme-

dy in court, and surely the amount of time and mon-

ey he or she must devote to the permit process is rel-

evant to the “adequacy” of this proposed remedy (not

the amount of time the Corps spends). Here, for ex-

ample, the Corps told the Hawkes Co. that it would

require nine additional studies, including expert sci-

25 David 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 (2002) (‘Sunding Article”).

entific and biological assessments, before the appli-

cation would be deemed complete. Pet’r’s J.A. at 33-

34.

The government also claims it was “particularly

inappropriate” for the Court to rely on Professor

Sunding’s cost figures because they were skewed by

larger projects driving up the “average cost.” Pet’r’s

Br. at 49 & n. 12. Professor Sunding’s declaration

explains how the sample was assembled, and, fur-

ther, that “the projects in [the] sample are not atypi-

cally large or small.” Sunding Decl. § 6. The gov-

ernment also says the median cost for an individual

permit was $155,000, “much lower” than the mean

cost cited in Rapanos.* Pet’r’s Br. at 49 n. 12. Per-

haps $155,000 seems trivial to the Federal govern-

ment, but to an individual permit applicant this is

surely a significant cost. And Professor Sunding’s

declaration shows that the costs are far higher today.

“[A]pplying the Consumer Price Index (CPI) inflation

rate to the cost figures reported in my 2002 article

the typical individual permit cost $386,392 to ob-

tain, and the typical nationwide permit cost

$41,137.” Sunding Decl. ¢ 3.

Finally, judicial review, via the permitting pro-

cess, is only available after exhausting all adminis-

trative remedies. According to Corps regulations at

33 C.F.R. Part 331, a permit appeal is supposed to

26 The “average applicant for an individual permit spends

$271,596 in completing the process, and the average applicant

for a nationwide permit spends $28,915 — not counting costs

of mitigation or design changes.” Rapanos, 547 U.S. at 721

(plurality op.) (citing Sunding Article).

take no more than 150 days, but the Corps’s division

websites show that, from 1999 to the present, na-

tionwide, on average, permit appeals decided on the

merits took 306 days.2’

In sum, applying for a permit is not an other ade-

quate remedy in a court under the APA. The gov-

ernment’s “remedy” forces the “affected party” to ap-

ply and perhaps receive a permit it never needed in

the first place and then to decline the permit to chal-

lenge jurisdiction. This roundabout process is un-

reasonable. The “affected party” should have the op-

portunity in the first instance to demonstrate the ar-

ea in question is not “navigable waters.”

B. Judicial Review in the Context of an

Enforcement Action Is Not an Ade-

quate Remedy for an Unlawful Ap-

proved Jurisdictional Determination.

As an additional “remedy,” the government

makes the astonishing suggestion that a citizen, if

she is “sufficiently confident” that a “relevant site

does not contain ‘waters of the United States,” may

initiate development and then challenge jurisdiction

once an enforcement action is brought. Pet’r’s Br. at

16. There is a lot wrong with this argument.

First, it assumes that the government will initi-

ate an enforcement action that allows for judicial re-

27 See, e.g., USACE, South Atlantic Division, Table of Appeals,

http://www.sad.usace.army.mil/Missions/Regulatory/Regulatory

Appeals/TableofAppeals.aspx.

view. Whether it does so is entirely within the gov-

ernment’s discretion, however. The government

knows, after Sackett, that a Compliance Order will

be subject to judicial review at the behest of the re-

cipient. But the government has numerous other

administrative enforcement tools, and our post-

Sackett experience suggests they will choose those

that elude judicial review. In Duarte Nursery, 17 F.

Supp. at 1020, for example, the government issued a

cease-and-desist letter to a farmer in the central val-

ley of California and then claimed that the letter

“was merely a suggestion, not a command. No one

forced Duarte to stop working his wheat field

That was simply his own choice.” Robin Abcarian,

This case is enough to furrow a farmer's brow, LOS

ANGELES TIMES, Jan. 15, 2016, at B2.; see also Mem.

of Points & Authorities in Supp. of Fed. Def.’s Mot. to

Dismiss Compl. at 8-11, Duarte Nursery, Inc. v. U.S.

Army Corps of Eng’rs, 17 F. Supp. 3d 1013 (E.D. Cal.

2014) (No. 2:13-cv-02095-KJM-AC). In the same

vein, amici have seen more proposed Administrative

Orders on Consent in which the government claims

illegal discharges are occurring in “navigable waters”

and then offers to settle administratively on the con-

dition that the respondent agree not to challenge ju-

risdiction in court. In short, enforcement is a “reme-

dy” only if the government chooses to allow it to be a

remedy.

Moreover, given the government’s theory that

CWA violations continue each day the fill remains in

place, the government retains all power and control

in determining when and where to “drop the ham-

mer.” Sackett, 132 S. Ct. at 1372. Once the “affected

party” disturbs the ground, the threat of government

enforcement will continue indefinitely.

Finally, allowing oneself to become the defendant

in an enforcement case entails other substantial

risks. An enforcement action for violation of envi-

ronmental laws will likely tarnish the reputation of

the defendant, and may as the Court stated in Abbott

Labs. harm the recipient “severely and unnecessari-

ly.” 387 U.S. at 153. As the Court observed in Sack-

ett, “there is no reason to think that the Clean Water

Act was uniquely designed to enable the strong-

arming of regulated parties into ‘voluntary compli-

ance’ without the opportunity for judicial review —

even judicial review of the question whether the reg-

ulated party is within the [Corps’s] jurisdiction.” 132

S. Ct. at 1374. It is astonishing, then, that the gov-

ernment would suggest that an individual should be

required to trigger an enforcement action carrying

very substantial penalties in order to test the validi-

ty of the government’s jurisdictional claim. We

thought Ex parte Young laid that poor idea to rest

more than a century ago. 209 U.S. 123, 130, 142

(1908) (holding the statute denied due process be-

cause any challenger would be subject to severe pen-

alties and “ruinous consequences’).

In sum, without APA judicial review, the “affected

party” faces three equally onerous choices ~ to avoid

using the broad swaths of land the Corps has incor-

rectly determined are jurisdictional, to seek a permit,

or to proceed without a permit and later face very

large fines. This is exactly the kind of situation the

APA was enacted to address.

For sound policy reasons that animate the APA,

the affected parties should have the opportunity to

challenge in court jurisdictional determinations they

believe are incorrect. The government suggests that

allowing judicial review would “strain the Corps’

limited resources” and the “Corps might reconsider

the practice, or at least revisit its willingness to pro-

vide an [AJD] to anyone who requests it.” Pet’r’s Br.

at 24. The government’s threat, however, is based on

the false premise that AJD recipients will challenge

an overwhelming number of jurisdictional determi-

nations. But, except in the most egregious cases,

most people do not want to go to court. They too

have limited resources and time, and would rather

spend those resources on productive activity, be it

land development, land sale, or fixing an appraisal

for tax purposes. The government’s concern is over-

blown,” and in no way alters the reviewability of

AJDs under the APA.

Furthermore, “[t]he APA's presumption of judicial

review is a repudiation of the principle that efficien-

cy of regulation conquers all.” Sackett, 132 S. Ct. at

1374. The point of judicial review is to foster an

28 The government made the same argument in Sackett, but we

have not seen a flood of lawsuits challenging Compliance Or-

ders.

agency commitment to consistent adherence to appli-

cable rules, and to allow citizens to hold them ac-

countable when they stray, even if it means, at

times, the agency must expend additional resources.

This is the promise of the APA. Congress knew un-

reviewable authority would breed extravagant claims

of jurisdiction, and “would in effect be blank checks

drawn to the credit of some administrative officer or

board.” S. REP. No. 752 at 26 (1945). Thus it enact-

ed APA Section 704 to give citizens the right to en-

sure their government would be “put to the test.”

Sackett Oral Arg. Tr. at 54 (Roberts, J.).

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

ANDREW J. TURNER VIRGINIA S. ALBRECHT

KARMA B. BROWN Counsel of Record

KRisTYy A. N. BULLEIT DEIDRE G. DUNCAN

Of Counsel BRIAN R. LEVEY

UTILITY WATER ACT GROUP HUNTON & WILLIAMS LLP

HUNTON & WILLIAMS LLP 2200 PENNSYLVANIAAVE., N.W.

2200 PENNSYLVANIAAVE.N'W. WASHINGTON, D.C. 20037

WASHINGTON, D.C. 20037 valbrecht@hunton.com

(202) 955-1500 (202) 955-1500

March 2, 2016 Counsel for Amici Curiae

APPENDIX

No. 15-290

IN THE

Supreme Court of the Anited States

UNITED STATES ARMY CORPS OF ENGINEERS,

Petitioner,

HAWKES Co., INC., ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

Declaration of Professor David L. Sunding, Ph.D.

I, David L. Sunding, declare as follows:

1. I am currently a professor in the Department

of Agricultural & Resource Economics at the Univer-

sity of California, Berkeley, and hold the Thomas J.

Graff Chair in Environmental and Resource Econom-

ics. In addition to my position at Berkeley, I am a

principal in the litigation practice of The Brattle

Group in the San Francisco office. Prior to my cur-

rent positions, I served as a senior economist on

President Clinton’s Council of Economic Advisors. I

have also served on panels of the National Research

Council and the U.S. Environmental Protection

Agency Science Advisory Board.

2. In 2002, I published The Economics of Envi-

ronmental Regulation by Licensing: An Assessment of

Recent Changes to the Wetland Permitting Process,

42 NATURAL RESOURCES J. 59 (2002), that analyzed

the costs to obtain a discharge permit issued under

Section 404 of the Clean Water Act. This article was

cited by the Supreme Court in Rapanos v. United

States, 547 U.S. 715 (2006). I calculated the typical

out-of-pocket expense incurred by applicants. These

costs result from the need to conduct scientific inves-

tigations, negotiate with the U.S. Army Corps of En-

gineers over the conditions of the permit, and rede-

sign the proposed project based on the Corps’ final

decision.

3. The data collection and analysis was per-

formed in 1999. Translating my findings to 2015 dol-

lars, I concluded that the typical individual permit

cost $386,392 to obtain, and the typical nationwide

permit cost $41,137. These figures do not include the

cost of mitigation and were obtained by applying the

Consumer Price Index (CPI) inflation rate to the cost

figures reported in my 2002 article.

4. In my article, I also concluded that it takes the

typical project developer 788 days to prepare and ne-

gotiate an individual permit, and that the typical na-

tionwide permit takes 313 days to obtain. These

times are measured from the date at which the ap-

plicant begins preparing the permit application, and

not merely the amount of time that the Corps takes

to render a decision once the application is deemed to

be complete.

5. The data analyzed to reach these conclusions

resulted from a detailed examination of 103 individ-

ual and nationwide permit applications. I obtained a

list of public sector projects from the National Asso-

ciation of Counties and a list of private sector pro-

jects through phone interviews with developers and

wetlands consultants.

6. Summary statistics from the resulting dataset

indicate that the sample was representative of the

entire population of Section 404 permits in important

respects. The data in the sample come from a rough-

ly even mix of private and public applicants (52 per-

cent public agency applicants and 48 percent pri-

vate). The projects included in the sample reflect the

wide range of activities authorized by Section 404

permits: school construction, quarry expansion, sed-

iment containment, home building, street improve-

ments, and flood control. The distribution of the pro-

jects in the sample according to acres impacted and

total project acreage is also representative of nation-

al averages: the average project size in my sample is

1.95 acres and the average amount of wetland acres

impacted is 0.23. Thus, the projects in my sample are

not atypically large or small.

7 Mainstream microeconomic theory tells us

that in equilibrium, the market value of land equals

the capitalized value of the future income stream re-

ceived by the property owner. In cases where the

land has potential for development, the anticipated

costs of development will affect the property's cur-

rent market value. Thus, actions such as a jurisdic-

tional determination that increase the expected cost

of development will reduce the property’s current

market value. In this sense, a jurisdictional determi-

nation by the Corps has an immediate economic con-

sequence, even if the proposed development may oc-

cur years in the future.

Pursuant to 28 U.S.C. § 1746, I declare under penal-

ty of perjury that the foregoing is true and correct to

the best of my knowledge and belief.

Executed on February 11, 2016.

/s/ David L. Sunding _

David L. Sunding, Ph.D.

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.