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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## 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

1V

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:
© Re Oe ie rccnetescccssevionenecemmeniantenimaaa 3, 15, 30
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)

© Complaint (Oct. 10, 2013) ........c..ceccccesseesseeeoes 10

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.

2

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,

3

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.

4

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.

5

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

6

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.

7

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).

8

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-

9

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

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.

1]

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).

12

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.

13

Exhibit 1

Uplands
Wetlands

14

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

15

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.

16

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 ”).

17

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.

18

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.

19

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-

20

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

21

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”).

22

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.

23

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.

Te
TTT
ITT
Ue KA
= Sout OK
= 24ul wees
5 =vonrnsie Mint ‘
'OGse08 SEAT:

Vz qIGz"

25

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.

26

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).

27

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

28

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).

29

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.

30

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.”

31

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.).

32

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

33

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”).

34

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).

35

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.

36

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-

37

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

38

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.

39

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

la
APPENDIX
No. 15-290

IN THE
Supreme Court of the Anited States

UNITED STATES ARMY CORPS OF ENGINEERS,
Petitioner,
v.

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

2a

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

3a

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

4a

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0613%3A16. Public record. Not legal advice.