# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0871%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 972

## Text

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
) 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0871%3A5. Public record. Not legal advice.