Amicus Curiae Brief — Rapanos v. United States

eS

No. 03-929

In The

Supreme Court of the United States

JOHN A. RAPANOS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals For The Sixth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF THE PETITIONER

Duane J. Desiderio*

Thomas J. Ward

Felicia K. Watson

National Association of

Home Builders

1201 15" Street, N.W.

Washington, D.C. 20005

(202) 866-8200

* Counsel of Record

TABLE OF CONTENTS

Page

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I. The Clear Split Among the Circuit Courts of Appeal

Warrants a Grant of Certiorari................ccccscccsssssssees 4

A. The Fourth and Sixth Circuits: “Some

Connection” to Navigable Waters is Enough to

Support CWA Juriadiction. . .........00s.ccrerssesscoresanes 5

B. Fifth Circuit: “Some Connection is Not Enough —

There Must be a “Direct Proximate Link” to

Navigable Waters to Support CWA

RS, xsi schiitiscvnvrciseceinninetamneerodanieuens 9

II. The Confusion Created by the Regulatory Agencies in

the Field Compels This Court’s Involvement. .......... 12

A. The Corps and EPA’s Failure to Issue Guidance

Furthers Confusion over the Extent of Their

I sis sdicss cts Aiataaminoniidaraccnnaen 12

B. The Disparate Regulation by Field Staff Stems

From Federal Agency Inaction. ................:eeseeeees 15

sr i ee denanee eageannanaaaeamamaeenaearall 18

TABLE OF AUTHORITIES

CASES Page(s)

FD&P Enterprises, Inc. v. United States Army Corps of

Eng’rs, 239 F. Supp. 2d 509 (D.N.J. 2003) ........ eee 16

In re Needham, 354 F.3d 340

gg I ROM Sd 9,10, 11, 12, 14, 16

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

<a, | ee RMN PP aR RNa ones 9,10, 11

Solid Waste Agency of Northern Cook County v. U.S.

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

Treacy v. Newdunn Assocs. LLP, 334 F.3d 416, petition

for cert. filed, 72 U.S.L.W. 3310 (U.S. Oct. 27, 2003)

Ps SF hse inikic <axisscereciteainveriacee means a 5

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

petition for cert. filed, 92 U.S.L.W. 3356 (U.S. Nov. 13,

DOOD) Cl: OFFA) osccsisnsvcscscsnasensnaracnes 1, 5,6, 8, 9, 16, 17

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

BURN, TINE Bes iesescossanesessncsnccuecenanenyecensanaie anne 7, 8,17

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

petition for cert. filed, 72 U.S.L.W. 3451 (U.S. Dec. 22,

POOF a BEI sccscsin icici 5, 7, 8, 9, 16

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

PE 0) >) Seen anenn in mereHennenenrsnmonne fb Mr 3,4, 8, 11

United States v. Rueth Development Co., 335 F.3d 598

(7"" Cir. 2003), cert. denied, 124 S. Ct. 835

CTS. 1, BME D scssissnsvnsnsnnsthoesisincoannios engiicen sneer aae 5

ill

REGULATIONS

Advanced Notice of Proposed Rulemaking on the Clean

Water Act Regulatory Definition of “Waters of the United

States,” 68 Fed. Reg. 1991 (2003) .o.....ecceececccee. 13, 14, 15

OTHER

Press Release, Environmental Protection Agency and U.S.

Army Corps of Engineers, EPA and Army Corps Issue

Wetlands Decision, (December 16, 2003), available at

http://www.epa.gov/newsroom ...........c.cccceeee. 4,12, 13,14

Agency Implementation of the SWANCC Decision:

Hearing Before the Subcomm. On Energy Policy, Natural

resources and Regulatory Affairs of the Comm. on

Government Reform,

107" Cong. 2d Sess. (2002) ceeccccccccccsccsscssesecsscsseseesee. 12, 13

INTEREST OF AMICUS CURIAE

The National Association of Home _ Builders

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

this brief as Amicus Curiae in support of Petitioner. Letters

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

NAHB represents over 215,000 builder and

associate members throughout the United States. Its

members include not only individuals and firms that

construct and supply single-family homes, but also

apartment, condominium, multi-family, commercial and

industrial builders, land developers and remodelers. NAHB

is the voice of the American shelter industry. Through the

regular course of operating their businesses, NAHB’s

members are subject to regulations under the Clean Water

Act (“CWA”). Therefore, NAHB is knowledgeable of the

ramifications of inequitable regulatory actions and time-

consuming processes that are often involved with land

development.

NAHB is of counsel to James and Rebecca Deaton,

landowners from Wicomico County, Maryland, who have

submitted a petition that is pending before this Court and

raises similar issues to those presented in Mr. Rapanos’s

petition. See James S. Deaton, et ux. v. United States, No.

03-701 (filed Nov. 13, 2003). The United States filed its

response to the Deatons’ petition on January 30, 2004. Mr.

Rapanos’s petition, like the Deatons’ petition, presents

another opportunity for this Court to resolve the conflict

' Pursuant to Rule 37.6 of this Court, Amicus Curiae states that

its counsel authored this brief and amicus paid for it. The brief

was not written in whole or part by counsel for a party, and no

one other than amicus made monetary contribution to its

preparation.

and confusion regarding the scope of CWA “navigable

waters” that is plaguing the lower courts, regulated

officials, and our members who seek to develop their

property.

Additionally, NAHB has been before the Court as

amicus curiae or “of counsel” to the landowner in a

significant number of land regulation cases. These include

Agins v. City of Tiburon, 447 U.S. 255 (1980); San Diego

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

Williamson County Reg’'l Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985); MacDonald, Sommer & Frates

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

Evangelical Lutheran Church of Glendale v. Los Angeles

County, 482 U.S. 304 (1987); Nollan v. California Coastal

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

503 U.S. 519 (1992); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard,

512 U.S. 374 (1994); Babbitt v. Sweet Home Chapter of

Communities for a Great Or., 515 U.S. 687 (1995); Suitum

v. Tahoe Reg’l Planning Agency, 520 U.S. 725 (1997); City

of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687 (1999); Solid Waste Agency of N. Cook County v.

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

v. Rhode Island, 533 U.S. 606 (2001); Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.

302 (2002); Borden Ranch P’ship v. U.S. Army Corps of

Eng’rs, 537 U.S. 99 (2002); City of Cuyahoga Falls v.

Buckeye Cmty. Hope Found., 538 U.S. 188 (2003); S. Fi.

Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 280

F.3d 1364, cert. granted in part, 123 S. Ct. 2638 (June 27,

2003) (No. 02-262) (argued Jan. 14, 2004).

SUMMARY OF THE ARGUMENT

There is a direct conflict between the Fourth and

Sixth Circuits on the one hand, and the Fifth Circuit on the

other, regarding the scope of “navigable waters” under the

Clean Water Act (“CWA” or the “Act”). The Fourth and

Sixth Circuits support an expansive, virtually limitless

theory of federal jurisdiction. They endorse an approach

that allows the U.S. Army Corps of Engineers (“Corps”) to

assert control over features like ordinary ditches, drains and

swales, merely if they have “some” connection or a

“potential” link to truly navigable waters. The Fifth Circuit

rejects such an expansive theory. It has expressly

disavowed the opinions of its sister circuits, and instead

requires a “direct, proximate” connection to navigable

waters to justify the assertion of CWA jurisdiction — and

thus the imposition of federal permitting and penalty

requirements under the Act.

In this regard, the Fifth Circuit has been faithful to

the mode of analysis employed by this Court, which has

been largely ignored by the Fourth and Sixth Circuits. In

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

121 (1985) (“Riverside”), the Court upheld CWA

jurisdiction over adjacent wetlands based on record

evidence showing they “actually abut[ted]”’ and were

“inextricably intertwined” with navigable waters. In Solid

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

Eng’rs, 531 U.S. 159 (2001) (“SWANCC”), the Court

clarified Riverside in rejecting CWA jurisdiction over non-

adjacent, isolated ponds that lacked a “significant nexus” to

navigable waters.

Certiorari is warranted to definitely resolve the split

between the circuits and their divergent interpretations of

Riverside and SWANCC. This Court’s guidance is

necessary because, after soliciting public input on the extent

of CWA jurisdiction following the SWANCC decision, the

agencies abruptly announced in December 2003 that they

would abandon their efforts to issue “a new rule on federal

regulatory jurisdiction over isolated wetlands.”* Thus, the

agencies relegated thousands of pages of public comments

to doorstop status. Accordingly, with no regulatory

guidance forthcoming from the Corps or EPA, this Court is

the only realistically available forum to make sense of the

judicial quagmire and provide landowners and regulatory

agencies with some rationale for determining what falls

within — and what falls outside — Corps and EPA authority.

Without this Court’s review, CWA jurisdiction will depend

on the wholly fortuitous circumstance of where, and in

what Circuit, the property at issue is located.

ARGUMENT

I. THE CLEAR SPLIT AMONG THE CIRCUIT

COURTS OF APPEAL WARRANTS THIS

COURT?’S REVIEW.

In the last five months, four petitions have been

submitted to this Court asking for guidance on the extent of

federal CWA jurisdiction over “navigable waters.”? With

? See Press Release, Environmental Protection Agency and U.S.

Army Corps of Engineers, EPA and Army Corps Issue Wetlands

Decision, (December 16, 2003) (“December 16" Press

Release’”’), available at http://www.epa.gov/newsroom.

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

petition for cert. filed, 72 U.S.L.W. 3451 (U.S. Dec. 22, 2003)

(No. 03-929) (“Rapanos”), United States v. Deaton, 332 F.3d

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

the filing of Mr. Rapanos’s petition, three of them are now

pending before the Court. The Court’s involvement is

necessary to address the split among the Circuit Courts of

Appeal that has arisen.

A. Fourth and_ Sixth Circuits: “Some

Connection” to Navigable Waters is Enough

to Support CWA Jurisdiction.

In Deaton and Rapanos, the Corps asserted federal

authority over remote drainage ditches that were miles

away from navigable waters. The Fourth and Sixth

Circuits, respectively, used the exact same language in

upholding the Corps’s authority:

The regulation, as the Corps reads it, reflects

a reasonable interpretation of the Clean

Water Act. The Act thus reaches to the

roadside ditch and its adjacent wetlands.

Deaton, 332 F.3d at 712; Rapanos, 339 F.3d at 452-53. As

a consequence, both circuits have accepted as proper the

Corps’s apparent unrestricted ability to exert regulatory

jurisdiction “over the whole tributary system of any

navigable waterway [].” Deaton, 332 F.3d at 712;

Rapanos, 339 F.3d at 452-53.

In Deaton, the property is comprised of a twelve-

acre parcel in rural Wicomico County, Maryland. Deaton,

332 F.3d at 702. The roadside ditch at issue is

(U.S. Nov. 13, 2003) (No. 03-701) (“Deaton”); United States v.

Rueth Development Co., 335 F.3d 598 (7" Cir. 2003), cert.

denied, 124 S. Ct. 835 (Dec. 1, 2003); Treacy v. Newdunn

Assocs. LLP, 344 F.3d 416 (4" Cir. 2003), petition for cert. filed,

72 U.S.L.W. 3310 (U.S. Oct. 27, 2003) (No. 03-637).

Re

Si i A RR in Oa ar ac a a ne

approximately two to three feet wide and at times carries

water’ and at other times is dry. Deaton Cert. Pet. at 5;

Deaton Cert. Pet. App. at 78a (picture of roadside ditch). It

“runs alongside the road between the pavement and the

Deatons’ property.” Deaton, 332 F.3d at 702. The

roadside ditch lies over eight miles from the nearest

navigable-in-fact water, the Wicomico River, and “takes a

winding, thirty-two-mile path to the Chesapeake Bay.”

Deaton, 332 F.3d at 702; Deaton Cert. Pet. at 5. The Corps

never established that any sediment ever left the Deatons’

property, or reached the roadside ditch. Nor did the Corps

ever prove that water from the roadside ditch reached

downstream navigable waters, or that sediment caused any

damage to distant navigable waters. See Deaton Cert. Pet.

at 7-8. (discussion of dye test). Indeed, a series of

obstructions that includes five dams, three ponds and five

culverts separates the Deatons’ property from the

Wicomico River. See Deaton Cert. Pet. App. at 77a.

Accepting the Corps’ assertion of jurisdiction over

tributaries as extending “to any branch of a tributary system

that eventually flows into a navigable body of water[,]” the

Fourth Circuit in Deaton found that there was simply “a

nexus between a navigable waterway and its nonnavigable

tributaries.” Deaton, 332 F.3d at 711 and 712 (emphasis

added). The Fourth Circuit misinterpreted SWANCC as

“suggesting that covered non-navigable waters are those

with ‘some connection’ to navigable ones.” Deaton, 332

F.3d at 709 (emphasis added).

* The Fourth Circuit recognized that the parties were unable to

agree on the amount of water and the consistency of the flow in

the ditch. Deaton, 332 F.3d at 702; Deaton Cert. Pet. at 12.

Similar to the Deaton property, Mr. Rapanos’s

property is described as a “one hundred and seventy-five-

acre plot of land in Williams Township, Bay County,

Michigan.” Rapanos, 339 F.3d at 448. In describing Mr.

Rapanos’s property, the District Court stated:

[His] property is not directly adjacent to a

navigable body of water; it is over twenty

miles from Saginaw Bay, and it is roughly

twenty miles from where the Kawkawlin

River — the nearest body of navigable water —

becomes navigable .... Like [Mr. Rapanos’s]

property itself, the wetlands were not directly

adjacent to either the Saginaw Bay or the

Kakawlin River.

United States v. Rapanos, 190 F. Supp. 2d 1011, 1012

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

petition for cert. filed, 72 U.S.L.W. 3451 (U.S. Dec. 22,

2003) (No. 03-929). Water leaving the Rapanos property

traverses a ditch, “dubbed the Labozinski drain, which

empties into Hoppler Creek, which eventually winds its

way into the Kawkawlin River, which in turn flows into

Saginaw Bay.” Rapanos, 190 F. Supp. 2d at 1014-15.

The district court, on remand from the Sixth Circuit

following this Court’s initial grant of certiorari,’ disclaimed

jurisdiction under SWANCC. The district court found “as a

> On certiorari, the Supreme Court, in Rapanos v. United States,

533 U.S. 913 (2001), vacated the judgment and remanded for

further consideration in light of SWANCC. On remand, the

District Court dismissed. See United States v. Rapanos, 190 F.

Supp. 2d 1011 (E.D. Mich. 2002). The Sixth Circuit reversed on

appeal, 339 F.3d 447 (6™ Cir. 2003), and that decision is the

subject of the present Petition.

3

matter of law,” that Mr. Rapanos’s wetlands were not

directly adjacent to navigable waters and therefore, under

both SWANCC and Riverside Bayview, the federal

government could not regulate them. Rapanos, 190 F.

Supp. 2d at 1012.

On appeal, the Sixth Circuit disagreed with the

lower court and, despite the distance between the wetlands

and the navigable waters, held that there was “an ample

nexus to establish jurisdiction” because Mr. Rapanos’s

wetlands were “adjacent” to a drain and ariver. 339 F.3d at

453 (citing Riverside Bayview, 474 U.S. at 133).

Continuing its analysis, the Sixth Circuit adopted the

Fourth Circuit’s analysis from Deaton: “[b]ecause we find

the Fourth Circuit’s reasoning persuasive, we disagree with

the broad interpretation of Solid Waste taken by the district

court in this case, Rapanos, 190 F. Supp. 2d at 1016, and,

instead, agree with Deaton, 332 F.3d 698 at 708-9.”

Rapanos, 339 F.3d at 454.

In Deaton and Rapanos, despite the remoteness of

the wetlands to navigable waters, and despite the lack of

evidence of any impact in each instance, the Fourth and

Sixth Circuits (respectively) held that these remote

wetlands and roadside ditches fell within the sphere of the

Corps’ regulatory authority under the CWA. Deaton, 332

F.3d at 708, 711-12; Rapanos, 339 F.3d at 453.

Significantly, both the Fourth and Sixth Circuits’

purposeful choice of words disserved the principle

announced by this Court in requiring a “significant nexus”

to navigable waters. In Deaton, the Fourth Circuit found “a

nexus” or “some connection” sufficient. Deaton, 332 F.3d

at 711, 709 respectively. Rapanos, relying heavily on

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

F.3d at 453.

~. < —

V- —

B. Fifth Circuit: “Some Connection” is Not

Enough — There Must be a “Direct,

Proximate Link” to Navigable Waters to

Support CWA Jurisdiction.

Unlike Deaton and Rapanos, the Fifth Circuit flatly

rejected the United States’ overbroad definition of

“navigable waters” as covering “all waters, excluding

groundwater, that have any hydrological connection with

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

Cir. Dec. 15, 2003) (“Needham’’) (citing 40 C.F.R. § 300.5

(2003)). See also Rice v. Harken Exploration Co., 250 F.3d

264, 269-70 (5" Cir. 2001) (“Rice”). Recognizing that the

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

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

government’s “expansive treatment,” the Fifth Circuit

countered by holding that in its view, such an all-inclusive

definition is “unsustainable under SWANCC.” 354 F.3d at

345 The Fifth Circuit stated:

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

‘navigable waters’] is unsustainable under

SWANCC. The CWA and the OPA are not

so broad as to permit the federal government

to impose regulations over ‘tributaries’ that

are neither themselves navigable nor truly

adjacent to navigable waters. Consequently,

in this circuit the United States may not

simply impose regulations over puddles,

sewers, roadside ditches and the like; under

SWANCC ‘a body of water is subject to

regulation . . . if the body of water is actually

navigable or adjacent to an open body of

navigable water.’

10

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

(citing Rice v. Harken Exploration Co., 250 F.3d 264, 269

(5" Cir. 2001)).

While the United States may declare that the Fifth

Circuit’s decision regarding the above-quoted language is

dicta, in order to downplay the split among the circuits, that

is simply not the case.° Rather, the Fifth Circuit adopted

very precise language to emphasize that its position

conflicted with the Fourth and Sixth Circuits when it held:

“{I]n this circuit, the United States may not simply impose

regulations over puddles, sewers, roadside ditches and the

like... .” Needham, 354 F.3d at 345. The Fifth Circuit

correctly applied the adjacency requirements of SWANCC

recognizing that “the Clean Water Act. . . [is] not so broad

as to permit the federal government to impose regulations

° In its Opposition in Deaton, the federal government dismissed

any such conflict stating the Needham decision “does not

squarely conflict” with the Fourth Circuit’s decision in Deaton.

Brief for the United States in Opposition at 18-19, United States

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

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

Conversely, the majority of Amici Curiae filing petitions in

support of the Deatons discuss this conflict among the circuits.

See, e.g., Brief of Amicus Curiae Hon. John R. Duncan, Jr., in

Support of Petitioners at 15-16, United States v. Deaton, 332

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

3356 (U.S. Nov. 13, 2003) (No. 03-701); Brief of Amicus Curiae

of the National Mining Association in Support of the Petition at

7-8, United States v. Deaton, 332 F.3d 698 (4" Cir. 2003),

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

(No. 03-701); Brief of Amicus Curiae of the Beaver Dam Public

Drainage Association and John A. Rapanos in Support of the

Petition at 56, 13-14, United States v. Deaton, 332 F.3d 698 (4"

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

13, 2003) (No. 03-701).

11

over ‘tributaries’ that are neither themselves navigable nor

truly adjacent to navigable waters.” Jd. (citing Rice, 250

F.3d at 269).

Needham's faithful adherence to Riverside and

SWANCC entrenches the view of the Fifth Circuit, as earlier

announced in Rice v. Harken Exploration Co., 250 F.3d

264 (5" Cir. 2001). In Rice, decided just after SWANCC,

the Fifth Circuit held that under SWANCC, “a body of

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

actually navigable or adjacent to an open body of navigable

water.” Rice, 250 F.3d at 269. The court held that there

was nothing to indicate that the creek at issue, or other

unnamed intermittent creeks were “sufficiently linked” to

the navigable-in-fact water. Jd. at 271. Further, the court

held that there must be “a close, direct and proximate link

between . . . [the] discharges of oil and any resulting actual,

identifiable oil contamination of natural surface water that

satisfies the jurisdictional requirements of the OPA. /d. at

272. See also Needham, 354 F.3d at 346, n.9 (citing Rice,

250 F.3d at 272).

In Needham, the court reaffirmed the adjacency

requirement identified in Rice, when it held “the term

‘adjacent’ cannot include every possible source of water

that eventually flows into a navigable-in-fact waterway. []

Rather, adjacency necessarily implicates a ‘significant

nexus’ between the water in question and the navigable-in-

fact waterway.” Needham, 354 F.3d at 346 and n.12 (citing

SWANCC, 531 U.S. at 167; identifying the Corps’

definition of adjacency as meaning “bordering, contiguous,

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

partial invalidation of that regulation by SWANCC).

12

In issuing the Needham opinion, the Fifth Circuit

clearly identifies its position as being contrary to its sister

circuits. Accordingly. the Court’s review is necessary to

resolve the appellate split that has emerged since SWANCC.

Il. THE CONFUSION CREATED BY THE

REGULATORY AGENCIES IN THE FIELD

COMPELS THIS COURT’S INVOLVEMENT.

A. The Corps and EPA’s Failure to Issue

Guidance Furthers Confusion Over the

Extent of Their Jurisdiction.

While multiple petitions addressing the meaning of

“navigable waters” have been filed recently with the Court,

Congress and the agencies have been struggling with the

extent of CWA jurisdiction ever since SWANCC came

down in 2001. Indeed, Congress held a hearing on the

regulatory implications of SWANCC, which led to a

promise from the Corps and EPA that they would clarify

the scope of CWA jurisdiction to benefit both their. field

offices and the regulated community. But the agencies

have broken their promise. They have made it clear that no

regulatory guidance, in a rulemaking or otherwise, is

forthcoming. See Press Release, Environmental Protection

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

Corps Issue Wetlands Decision (December 16, 2003)

(“December 16" Press Release”), available at

http://www.epa.gov/newsroom.

In 2002, the House Subcommittee on Energy Policy,

Natural Resources and Regulatory Affairs, chaired by

Representative Doug Ose, held a hearing concerning the

EPA and Corps implementation of this Court’s SWANCC

decision. See Agency Implementation of the SWANCC

13

Decision: Hearing Before the Subcomm. on Energy Policy,

Natural Resources and Regulatory Affairs of the Comm. on

Government Reform, 107" Cong. 2d Sess. (2002)

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

Hearing”). During that hearing, Representative Ose

recognized that the agencies’ approach to determining

CWA jurisdiction “has resulted in widely varying

interpretations of the scope of jurisdiction... .” Jd. at 2.

Furthermore, Representative Ose explained that the

“current situation is creating confusion and chaos” for the

States’ in that the lack of agency guidance concerning

CWA jurisdiction “hinders States in their ability to

implement their own programs to protect wetlands.” Jd.

To address the confusion, the EPA and Corps agreed to

conduct a rulemaking to clarify their position regarding

CWA jurisdiction. Subcomm. Hearing at 32, 36, 38, 41,

53.

In 2003, the Corps and EPA issued an Advanced

Notice of Proposed Rulemaking to “ensure that the

regulations are consistent with the CWA and the public

” See also, Brief of Amici Curiae of the Building Industry Legal

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

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

for cert. filed, 92 U.S.L.W. 3356 (U.S. Nov. 13, 2003) (No. 03-

701). Amici Curiae discuss specific examples of how water

quality regulators in California are “improperly asserting

jurisdiction under the CWA.” Jd. at 2. Amici Curiae include in

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

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

are swimmable”; (2) declaring a municipal “separate storm

sewer system as always considered a Waters of the United

States” that incluaes municipal Streets, curbs, and gutters; (3)

and best management practices implemented by a regional board

that result in micro-management of local practices. Jd. at 5-7.

a TS

14

understands what waters are subject to CWA jurisdiction.”

Advanced Notice of Proposed Rulemaking on the Clean

Water Act Regulatory Definition of “Waters of the United

States” (“ANPR”), 68 Fed. Reg. 1991, 1993 (2003). Thus,

the agencies recognized that their current regulations were

causing confusion and that they needed to develop

regulations to “clarify[] what waters are subject to CWA

jurisdiction.” Jd.

However, after receiving thousands of pages of

comments, the agencies announced, one day after the Fifth

Circuit released its decision in Needham, that they would

not move forward with rulemaking or otherwise issue any

guidance at all to clarify the confusion. See December 16"

Press Release. Through their press release, the EPA and

Corps declined further agency action stating:

After soliciting public comment to determine

if further regulatory clarification was needed,

the EPA and Corps have decided to preserve

the federal government’s authority to protect

our wetlands. The agencies will continue to

monitor implementation of this important

program to ensure its effectiveness.

December 16" Press Release. The confusion still exists

without any expected schedule for clarification from these

agencies.

In light of the abandoned rulemaking on SWANCC,

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

become the final arbiters on the scope of CWA jurisdiction.

But they themselves are in a state of disarray. Everyone —

including the agencies — will anticipate and scrutinize every

federal trial and circuit court opinion in the absence of

15

reasoned agency decision-making. Indeed, the ANPR itself

documents the divergent judicial views concerning those

water bodies that are regulated under the CWA and those

that are not. In a blatant abdication of their responsibilities,

the Corps and EPA directed their field staff to make

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

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

1991, 1998.

Accordingly, on a nationwide level, property owners

run significant risks of being subject to disparate civil and

criminal enforcement actions by agencies that recognize the

need to clarify their regulations, yet refuse to do so.

B. The Disparate Regulation by Field Staff

Stems From Federal Agency Inaction.

Because the agencies have relied on court decisions

to direct the public, landowners are now confronted with

geographically disparate applications of the CWA. This

subjects them to significant criminal and civil penalties

based solely upon where their land is situated. Thus,

landowners with property in the Sixth and Fourth Circuit

states of Kentucky, Michigan, Ohio, Tennessee, Maryland,

Virginia, North Carolina, South Carolina and West Virginia

are overly regulated because their property has “some

connection” to or is “hydrological[ly] connect[ed]” to

* See also, Brief of Amicus Curiae of Yellowstone Development

LLC in Support of Petitioners, at 9-10, United States v. Deaton,

332 F.3d 698 (4" Cir. 2003), petition for cert. filed, 92 U.S.L.W.

3356 (U.S. Nov. 13, 2003) (No. 03-701). In its brief,

Yellowstone Development discusses the significant due process

considerations involved as a result of the Corps’ failure to

definitely resolve these issues. /d.

16

traditionally navigable waters. See, e.g., Deaton, 332 F.3d

at 709; Rapanos, 339 F.3d at 453.

By contrast, land owned in the Fifth Circuit states of

Mississippi, Louisiana and Texas will be regulated using

the “significant nexus” standard this Court established in

SWANCC.’ Accordingly, jurisdiction in this region of the

country will be determined by “a close, direct and

proximate link.” See, e.g., Needham, 354 F.3d at 346.

The Fourth and Sixth Circuit decisions in Deaton

and Rapanos provide real examples of such an uneven

exercise of jurisdiction.'” In both cases, the government did

not prove that the wetland activities in question negatively

impacted any truly navigable water or that any pollutants

were actually added into any truly navigable water.

» Landowners in New Jersey will also be regulated under the

“significant nexus” standard. See FD&P Enterprises, Inc. v.

United States Army Corps of Eng’rs, 239 F. Supp. 2d 509, 516

(D. N.J. 2003). In FD&P, the court held that following

SWANCC, the proper test is no longer the “hydrological

connection test” but rather is the “significant nexus” test, as

identified in SWANCC, for determining jurisdiction under the

Clean Water Act. /d.

10 See e.g., Brief of Amici Curiae Nationwide Public Projects

Coalition, et al. in Support of Petitioners, at 12-15, United States

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

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

brief, Amici Curiae identify the practical ramifications of the

current circuit split. For example, in EPA Region Four, the

region is comprised of states located within the Eleventh, Sixth,

Fifth and Fourth Circuits. Thus, Corps and EPA regulators in

that region, will be applying divergent standards regarding

jurisdiction depending on which state, within Region Four, the

site is located. /d at 12.

17

Furthermore, in both cases, the government did not prove a

constant and continuous surface water connection between

the wetlands at issue and truly navigable waters. See, e.g.,

Deaton Cert. Pet. at 7-8 (dye test did not prove any

hydrological connection between the roadside ditch and

navigable waters); Rapanos, 190 F. Supp. 2d 1014 (stating

that whether the wetlands “had any significant nexus to

navigable waters [was] a critical fact left unresolved by the

jury in this case”). Yet in both cases the government and

the Circuit Courts ignored these facts, with each court

holding that the wetlands were jurisdictional. However, in

the Fifth Circuit, these facts would certainly be weighed in

applying the “significant nexus” test identified by this

Court and would likely lead to an opposite conclusion.

Granting certiorari would address the legal vacuum

created by such unequal application of enforcement under

the CWA, while serving to preserve the stated goals of

Congress in enacting this piece of legislation.

18

CONCLUSION

If the Deatons’ roadside ditch or Mr. Rapanos’s

wetland were located in the Fifth Circuit, they would not be

regulated. Whether federal jurisdiction exists under a

nationwide regulatory program should not depend on the

wholly fortuitous circumstance of where in the country a

particular piece of property is located.

The Supreme Court’s involvement is urgently

needed so the Corps can regulate with consistency and

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

government properly reaches their land and triggers CWA

permitting and penalty requirements.

DATED: March 1, 2004

Respectfully submitted,

Duane Desiderio*

Thomas Jon Ward

Felicia K. Watson

National Association of

Home Builders

* Counsel of Record