Amicus Curiae Brief — Johnson v. United States (No. 07-9)

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FILED

sep £ 2007

OFF

SURGE OF THE CLERK

EME COURT, U.S.

Inu The

Supreme Court of the Anited States

CHARLES JOHNSON, GENELDA JOHNSON,

FRANCIS VANER JOHNSON, and

JOHNSON CRANBERRIES, LLP,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

WILLIAM PERRY PENDLEY

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorney for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether, following Rapanos v. United States, courts

should apply the plurality’s test, the broader test outlined

in Justice Kennedy’s concurrence, or both tests, to deter-

mine the jurisdictional reach of the Clean Water Act?

TABLE OF CONTENTS

QUESTION PRESENTED

IDENTITY AND INTEREST OF AMICUS CURIAE

LEGAL BACKGROUND

A. Congress Granted the Corps Limited Au-

thority Under the CWA

B. This Court Has Held Consistently that the

CWA’s Jurisdictional Reach Is Limited by

the Constitution and Its Own Terms to

Navigable-in-Fact Waters and Waters that

Significantly Affect Them

1. United States v. Riverside Bayview

SRD DADS iki ihicicccvcenctdaarceteiicsWiccwciacss

Solid Waste Agency of Northern Cook

County v. United States Army Corps of

Engineers

3. Rapanos v. United States

Il. THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI BECAUSE, SINCE RA-

PANOS, LOWER COURTS HAVE DETER-

MINED THE JURISDICTIONAL REACH OF

THE CWA INCONSISTENTLY, RESULTING

IN A DISPARATE APPLICATION OF THE

TABLE OF AUTHORITIES

CASES

Leovy v. United States, 177 U.S. 621 (1900)

Marks v. United States, 430 U.S. 188 (1977)

Natural Resources Defense Council, Inc. v. Callaway,

392 F.Supp. 685 (D.D.C. 1975)

Northern California River Watch v. Healdsburg,

457 F.3d 1023 (9th Cir. 2006) 2, 3, 13, 14

Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d

962 (7th Cir. 1994)

Rapanos v. United States,

2208 (2006)

U.S. __, 126 S.Ct.

San Francisco Baykeeper v. Cargill Salt Div., 481

F.3d 700 (9th Cir. 2007)

Simsbury-Avon Pres. Soc’y, LLC v. Metacon Gun

Club, Inc., 472 F.Supp.2d 219 (D.Conn. 2007)

Solid Waste Agency of Northern Cook County uv.

United States Army Corps of Engineers, 531 U.S.

159 (2001) passim

The Daniel Ball, 77 U.S. 557 (1870)

United States v. Chevron Pipe Line Co., 437

F.Supp.2d 605 (N.D.Tex. 2006)

United States v. Fabian, __ F.Supp.2d ___, 2007

WL 1035078 (N.D.Ind. 2007)

United States v. Gerke Excavating, Inc., 464 F.3d

723 (7th Cir. 2006)

TABLE OF AUTHORITIES — Continued

Page

United Siates v. Johnson, 4837 F.3d 157 (1st Cir.

2006), vacated, 467 F.3d 56 (1st Cir. 2006)

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

U.S. 121 (1985)

STATUTES

Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401,

BE Si iaicdssciatosasnaconcdsndibadecdbunhininpevtnenpiiachanakhsas tenets 4,5

33 U.S.C. § 401

Federal Water Pollution Control Act (“Clean Water

Act”), 33 U.S.C. §§ 1251-1387

33 U.S.C. § 1251

33 U.S.C. § 1251(a)

33 U.S.C. § 1251(b)

33 U.S.C. § 1252(a)

33 U.S.C. § 1362(7)

REGULATIONS

33 C.F.R. § 328.3

33 C.F.R. § 328.3(a)

RULE

Supreme Court Rule 37(6)

TABLE OF AUTHORITIES -— Continued

OTHER AUTHORITIES

Gregory T. Broderick, From Migratory Bird to

Migratory Molecule, 30 Colum. J. Envtl. L. 473

Rina Eisenberg, Recent Developments in Environ-

mental Law, Clean Water Act, 20 Tulane Envtl.

L.J. 459 (2007)

Taylor Romigh, Comment, The Bright Line of

Rapanos: Analyzing The Two-Part Test, 75

Fordham L. Rev. 3295 (2007)

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

Mountain States Legal Foundation (“MSLF”) respect-

fully submits this amicus curiae brief on behalf of itself

and its members in support of Petitioners. Pursuant to

Supreme Court Rule 37(2)(a), this amicus curiae brief is

filed with the written consent of all parties.’

IDENTITY AND INTEREST OF AMICUS CURIAE

MSLF is a nonprofit, membership, public-interest law

firm dedicated to bringing before the courts those issues

vital to the defense and preservation of individual liberties,

the right to own and use property, limited and ethical gov-

ernment, and the free enterprise system. MSLF’s members

include businesses and individuals who live and work in

every state of the country. A large number of MSLF’s

members work in businesses involved in the utilization and

development of natural resources and, as a result, are

involved actively in many environmental issues. Moreover,

MSLF and its members have an interest in ensuring that

federal laws and regulations, including the Clean Water

Act’ (“CWA”), are implemented and enforced in a manner

consistent with the Constitution of the United States.

’ Copies of the consent letters have been filed with the Clerk of the

Court. In compliance with Supreme Court Rule 37(6), MSLF represents

that no counsel for any party authored this brief in whole or in part and

that no person or entity, other than MSLF, made a monetary contribu-

tion to the preparation or submission of this brief.

* Federal Water Pollution Control Act (“Clean Water Act”), 33

U.S.C. §§ 1251-1387.

SUMMARY OF THE ARGUMENT

The jurisdictional reach of the CWA has been the

source of much litigation. See, e.g., Solid Waste Agency of

Northern Cook County v. United States Army Corps of

Engineers, 531 U.S. 159 (2001) (“SWANCC”); United States

v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985);

Rapanos v. United States, ___ U.S. __, 126 S.Ct. 2208

(2006). Despite the abundance of litigation, courts have

reached widely disparate results when faced with ques-

tions of the jurisdictional reach of the CWA. See, e.g.,

Northern California River Watch v. Healdsburg, 457 F.3d

1025 (9th Cir. 2006) (man-made waste pond was under

CWA jurisdiction based upon “significant nexus” with

Russian River, when hydrological connection was through

aquifer); United States v. Chevron Pipe Line Co., 437

F.Supp.2d 605 (N.D.Tex. 2006) (streambed that carried

water only during periods of heavy rainfall, and only

eventually drained into navigable water, was not within

CWA jurisdiction); see also Taylor Romigh, Comment, The

Bright Line of Rapanos: Analyzing The Two-Part Test, 75

Fordham L. Rev. 3295 (2007) (discussing confusion in

lower courts about the reach of CWA jurisdiction generally,

and the proper application of Rapanos, specifically).

Traditionally, this Court has limited the CWA’s juris-

dictional reach to waters that have some substantial effect

on navigable or interstate waters. SWANCC, 531 U:S. at

167-168 (discussing Riverside Bayview). However, this

Court’s most recent decision in this area, Rapanos, did not

command a majority. Rapanos, 126 S.Ct. 2208. Further,

the “significant nexus” test elaborated by Justice Kennedy

in his Rapanos concurrence is ambiguous and is applied

out of context such that courts appear to conform to his

guidance simply by phrasing their decisions in terms of a

“significant nexus” while extending jurisdiction to waters

that have, at most, an insubstantial connection to waters

of the United States. United States v. Fabian, __

F.Supp.2d __, 2007 WL 1035078 (N.D.Ind. 2007) (court

upheld CWA jurisdiction, based upon the presumption of a

significant nexus, over a wetland separated from a ditch

by a 15-foot-high, 130-foot-wide levee). These lower court

holdings are out of accord with the statute, the Corps’s

regulations, and the precedent set by this Court; thus,

certiorart should be granted. Rina Eisenberg, Recent

Developments in Environmental Law, Clean Water Act, 20

Tulane Envtl. L.J. 459, 467 (2007).

Moreover, the consequence of an overly broad or

inconsistent finding of CWA jurisdiction is that landown-

ers who wish to modify the use of their own property may

find that to do so, even though not statutorily mandated,

the Corps will require that they obtain a federal permit,

thus needlessly subjecting them to federal oversight and

substantial costs. See, e.g., Healdsburg, 457 F.3d at 1030-

1032 (court upheld Corps’s assertion of jurisdiction over

pond based upon hydrological connection, via groundwa-

ter, with navigable-in-fact river); Fabian, 2007 WL

1035078 (court affirmed the Corps’s assertion of jurisdic-

tion over wetlands separated from ditch by 130-foot-wide

levee).

ARGUMENT

LEGAL BACKGROUND.

A. Congress Granted the Corps Limited Au-

thority Under the CWA.

The 1972 Clean Water Act Amendments amended the

Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, et

seg., which was itself an enlargement of the federal control

over navigable waters provided by the River and Harbors

Act, 33 U.S.C. §§ 401, et seg. The previous legislation

allowed the Corps to regulate the addition of “pollutants”

into navigable waters, including harbors and tidal water-

ways. Gregory T. Broderick, From Migratory Bird to

Migratory Molecule, 30 Colum. J. Envtl. L. 473 (2005)

(discussing the history of Federal jurisdiction under the

CWA and how it was limited to navigable-in-fact waters

until Natural Resources Defense Council, Inc. v. Callaway,

392 FSupp. 685 (D.D.C. 1975)). The jurisdictionally

limiting phrase “navigable waters of the United States”

meant waters upon which “commerce of a substantial and

permanent character” was conducted, i.e., navigable-in-

fact waters. Leovy v. United States, 177 U.S. 621, 632

(1900). The phrase was premised upon the limited consti-

tutional authority granted Congress, “[tlhe power of

Congress to regulate such waters [was] not expressly

granted in the Constitution, but [was] a power incidental

to the express ‘power to regulate commerce.’” Jd. The term

“pollutants,” however, was read broadly to include sand,

dirt, and fill material that might obstruct navigation on

these waterways. Id. at 478.

However, with the CWA, Congress defined “navigable

waters,” not as “those upon which commerce of a substan-

tial and permanent character is conducted,” but as “the

waters of the United States.” 33 U.S.C. § 1362(7). Instead

of excising the limiting term “navigable waters,” Congress

chose to broaden it. SWANCC, 531 U.S. at 167. Interpreta-

tion of “navigable waters” has since been expanded to

include “at least some waters that would not be deemed

‘navigable’ under the classical understanding of that

term.” Riverside Bayview, 474 U.S. at 133 (emphasis

added). In order to grant the Corps the power necessary

“to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters,” the CWA

reached waters beyond the scope of earlier legislation;

however, it also recognized the primacy of the states to

regulate their own land and water, and must be under-

stood in this context. 33 U.S.C. § 1251(a), (b).

The terms Congress employed had preexisting mean-

ing and have been used by tie Corps for over 100 years.

See, e.g., The Daniel Ball, 77 U.S. 557, 563 (1870). It was

not until the United States District Court for the District

of Columbia demanded the Corps give the term a broader

definition that the Corps began to regulate beyond the

traditional “navigable waters.” See Callaway, 392 F.Supp.

at 686 (directing the Corps to draft new regulation consis-

tent with the CWA, and to revoke regulations that placed

“limits [on] the permit jurisdiction of the Corps of Engi-

neers by definition or otherwise to other than ‘the waters

of the United States’”). With regard to other Corps’s

responsibilities, however, the term “navigable waters”

retains its historical meaning. See, e.g., 33 U.S.C. § 401

(mandating that bridges, causeways, and dams on waters

that are, or can be, used to transport interstate commerce

be approved by the Chief of Engineers).

In response to the decision in Callaway, the Corps

promulgated regulations that, while broader in reach than

earlier regulations, still retained the primacy of “navigable

waters.” 33 C.F.R. § 328.3. These regulations use the term

“waters of the United States” for efficiency, instead of the

term “navigable waters”; however, under the CWA, these

two terms are synonymous. 33 U.S.C. § 1362(7). The

Corps’s regulations provide general categories of water

and land that fall within the CWA, and all of the included

categories refer recursively either back to waters used in

interstate commerce or to their tributaries. 33 C.F.R.

§ 328.3(a).

B. This Court Has Held Consistently that the

CWA’s Jurisdictional Reach Is Limited by

the Constitution and Its Own Terms to

Navigable-in-Fact Waters and Waters that

Significantly Affect Them.

On three occasions, this Court has reviewed the

Corps’s assertion of jurisdiction under the CWA. In the

first case, this Court overruled the Sixth Circuit Court of

Appeals’ overly restrictive holding. Riverside Bayview, 474

U.S. at 139. In the next two cases, this Court overruled the

Courts of Appeal for the Sixth and Seventh Circuits’

acceding to the Corps’s overreach. SWANCC, 531 U.S. at

174; Rapanos, 126 S.Ct. at 2235. In each instance, this

Court recognized that the CWA’s jurisdiction is limited.

1. United States v. Riverside Bayview Homes,

Inc.

In the first instance, Riverside Bayview, this Court

reversed a Sixth Circuit Court of Appeals’ decision that

exempted a property that was squarely within the Corps’s

guidelines and the terms of the CWA. 474 U.S. at 135.

a“

This Court held that a wetland adjacent to, and “insepara-

bly bound up” with, a navigable-in-fact river was within

the CWA’s jurisdiction. Jd. However, this Court restricted

its holding to the facts of that case, stating that it was not

addressing whether other waters were within the CWA’s

jurisdiction. Jd. at 131. Based upon the language, policies,

and history of the CWA, this Court found that the wet-

lands at issue were “inseparably bound up” with navigable

waters and, thus, were within the CWA’s jurisdiction. Jd.

at 135-136.

This Court stated that the term “navigable” was of

limited import, but nonetheless premised its decision upon

the fact that the CWA was intended to cover “at least some

waters that would not be deemed ‘navigable’ under the

classical understanding of that term.” Jd. at 133 (emphasis

added). Implicit in this statement is that regulation of

waters that are not, in fact, navigable is the exception and

not the rule. Similarly, this Court acknowledged that not

all wetlands adjacent to navigable waters would have a

“great” effect on those navigable waters. Jd. at 135. How-

ever, this Court held that the basis for including those

wetlands in the CWA’s jurisdiction was, in the “majority”

of cases, that they would have a “great” effect on those

waters. Jd. Even then, this Court justified its categorical

inclusion of wetlands adjacent to navigable-in-fact waters

based upon the Corps’s ability to grant fill permits for

wetlands that did not fit the generalization. Id.

2. Solid Waste Agency of Northern Cook

County v. United States Army Corps of

Engineers.

This Court reaffirmed the holding of Riverside Bay-

view with its decision in SWANCC. The Corps, in SWANCC,

denied a fill permit to a solid waste disposal group because

the abandoned gravel pit in question purportedly hosted

various species of migratory birds, even though the waters

were man-made, non-navigable, isolated, intrastate ponds.

531 U.S. at 162. The Corps asserted CWA jurisdiction over

any water or wetland, regardless of its relation to naviga-

ble waters, based upon the presence of birds that might

cross state lines or that might draw tourists from across

state lines, using the so called “Migratory Bird Rule.” Jd.

at 164.

This Court characterized the relationship between a

wetland and adjacent navigable-in-fact waters such that

no boundary could be drawn between the two as a “signifi-

cant nexus.” Jd. at 167. This Court acknowledged that the

discussion in Riverside Bayview of the term “navigable”

being of limited importance could not be conclusive as

“(t]he term ‘navigable’ has at least the import of showing

us what Congress had in mind as its authority for enacting

the CWA: its traditional jurisdiction over waters that were

or had been navigable in fact or which could reasonably be

so made.” Jd. at 172. This Court held that the “Migratory

Bird Rule” impermissibly extended CWA jurisdiction based

upon the presence of birds that cross state lines. Jd. at

174. In so doing, this Court held that a pond, remote from

any interstate or navigable water, could not be within the

CWA’s jurisdiction because it lacked the “significant

nexus” of the water. Jd. (citing Riverside Bayview). This

Court held that such waters were outside the scope of the

CWA, and, even if they were not, assertion of federal

jurisdiction over waters wholly unrelated to interstate

waters would raise serious constitutional concerns. Jd.

3. Rapanos v. United States.

Most recently, building upon the framework of River-

side Bayview and SWANCC, this Court struck down yet

another attempt by the Corps to extend CWA jurisdiction.

In Rapanos, the Corps asserted jurisdiction over waters

with any purported hydrological connection to navigable-

in-fact waters, Rapanos, 126 S.Ct. at 2219; however, this

Court overturned and remanded the Sixth Circuit’s affir-

mance of the Corps’s jurisdiction over wetlands that were

as far as 20 miles from navigable-in-fact waters. Jd. at

2214. The wetlands at issue were connected to navigable

water via drainage ditches over which the Corps had

asserted jurisdiction, again based upon a purported

hydrological connection, arguing that the drainage ditches

were waters of the United States. Jd. at 2219. This Court

also vacated and remanded the companion case, Carabell

v. United States Corps of Engineers, in which the Corps

asserted jurisdiction over a wetland with no surface

connection — except during flooding — to an adjacent

intermittent ditch. Jd. This Court refused to uphold the

rule that a hydrological connection could, by itself, bring a

water body within “waters of the United States.” Jd. at

2235.

Rapanos, however, was a plurality opinion. The

plurality concluded that the CWA’s jurisdiction “includes

only those relatively permanent, standing or continuously

flowing bodies of water ‘forming geographic features’ that

are described in ordinary parlance as ‘streams, oceans,

rivers, and lakes.’” Jd. at 2225 (brackets and ellipses in

original omitted). Moreover, the plurality would find CWA

jurisdiction only over wetlands that “ha[ve] a continuous

surface connection with that water, making it difficult to

determine where the ‘water’ ends and the ‘wetland’ be-

gins.” Id. at 2227.

Concurring in the judgment, Justice Kennedy would

extend CWA jurisdiction to all “wetlands” except those

that have only a speculative or insubstantial effect on

waters that are more conventionally understood as navi-

gable. Jd. at 2248 (Kennedy, J., concurring). Under Justice

Kennedy’s approach, CWA jurisdiction would be presumed

where a wetland was adjacent to a navigable-in-fact body

of water, regardless of any actual effects of the wetlands

on the navigable water. Jd. at 2249. In addition, Justice

Kennedy would allow inclusion of wetlands, if, when

aggregated with “similarly situated waters,” the effects

would be significant. Jd. at 2248. Justice Kennedy prem-

ised this grant of jurisdiction upon the stated goal of the

CWA to regulate the biological, chemical, and physical

integrity of navigable waters. Jd. In short, under Justice

Kennedy’s approach, jurisdiction is premised upon the

possible effect that pollution — including dredge and fill

material — may have on waters used in interstate com-

merce. Id.

This Court’s precedent consistently has retained the

limiting term “navigable waters” when examining the

jurisdictional reach of the CWA. This Court held that

waters that were indistinguishable from navigable waters

— in the sense that no boundary could be drawn — fell

within the jurisdictional reach of the CWA based upon a

connection to, and effect upon, those navigable waters.

Riverside Bayview, 474 U.S. at 135. In SWANCC, this

court demanded a retrenchment of the Corps’s jurisdiction,

one that would exclude land and water wholly uncon-

nected with navigable waters. SWANCC, 531 U.S. at

168. Finally, in Rapanos, this Court again limited CWA

jurisdiction, requiring more than a mere hydrological

connection between the waters sought to be regulated and

jurisdictional waters. Rapanos, 126 S.Ct. at 2226, 2249.

II. THIS COURT SHOULD GRANT THE WRIT OF

CERTIORARI BECAUSE, SINCE RAPANOS,

LOWER COURTS HAVE DETERMINED THE

JURISDICTIONAL REACH OF THE CWA IN-

CONSISTENTLY, RESULTING IN A DISPA-

RATE APPLICATION OF THE CWA.

Courts have split as to how to interpret and apply

Rapanos. See Romigh, 75 Fordham L. Rev. at 3306 (“The

few cases decided since Rapanos illustrate continuing

confusion regarding the extent of the Corps’s jurisdiction

under the CWA.”). The result of this split is, as Chief

Justice Roberts predicted in Rapanos, that jurisdiction is

now determined on a case-by-case basis. 126 S.Ct. at 2236

(Roberts, C.J., concurring). Since Rapanos, each court

faced with a CWA jurisdictional issue has elected to apply

either Justice Kennedy’s concurrence, both the plurality

and Kennedy’s concurrence, or, on at least one occasion,

neither. Some courts have found jurisdiction based upon

the mere adjacency of a wetland to a water of the United

States pursuant to Justice Kennedy’s approach. See, e.g.,

United States v. Gerke Excavating, Inc., 464 F.3d 723, 725

(7th Cir. 2006) (remanding case to be decided according to

Justice Kennedy’s “significant nexus” test, without any

reference to limitations based upon Riverside Bayview, or

SWANCC). Some, such as the Ninth Circuit, have exam-

ined the relationship between a body of water and the

biological, chemical, and physical integrity of navigable

waters to establish jurisdiction. See, e.g., San Francisco

Baykeeper v. Cargill Salt Div., 481 F.3d 700, 708 (9th Cir.

2007) (examining whether the pond in question had any

effect on nearby navigable slough to determine a “signifi-

cant nexus” between the two). Others, such as the First

Circuit, have looked to either the Plurality’s test or Justice

Kennedy's test to establish jurisdiction. See, e.g., United

States v. Johnson, 437 F.3d 157 (1st Cir. 2006), vacated,

467 F.3d 56 (1st Cir. 2006). Yet others have declined to

apply Rapanos at all. See, e.g., Chevron Pipe Line Co., 437

F.Supp.2d at 605 (declining to apply holding of Rapanos,

instead applying existing Fifth Circuit precedent).

In United States v. Gerke Excavating, Inc., the Sev-

enth Circuit held that the “significant nexus” test was the

narrower test — in terms of limiting the Corps’s authority —

and hence was the appropriate test to apply. 464 F.3d 723

(citing Marks v. United States, 430 U.S. 188 (1977) (when

no single opinion commands a majority of the Court, lower

courts should look to the narrowest decision)). The court,

therefore, remanded the decision with instruction that the

district court follow Justice Kennedy’s concurrence. /d.

The Seventh Circuit impliedly assumed that any decision

consistent with Justice Kennedy’s concurrence would

necessarily comport with SWANCC and Riverside Bayview

as well.

Similarly, the Northern District of Indiana followed

the lead of the Seventh Circuit in United States v. Fabian

and upheld CWA jurisdiction by applying Justice Ken-

nedy’s concurrence. ___ F.Supp.2d ___, 2007 WL 1035078

(N.D.Ind. 2007). The court held that the defendant had

filled a wetland in violation of the CWA. Id. at *16. Fa-

bian’s wetland, even though separated by a levee 15 feet

high and 130 feet wide, nevertheless was considered

adjacent to “Burn’s Ditch.” Jd. at *13. The court held that

this ditch, as shallow as nine inches, was navigable by

canoe, and thus navigable-in-fact for purposes of the CWA.

Id. at *15. To find jurisdiction, the court determined that

Justice Kennedy’s concurrence in Rapanos was the deter-

minative holding. Jd. at *14. Because Justice Kennedy

would presume the presence of a “significant nexus”

whenever a wetland was adjacent to a navigable body of

water, the court did not address whether a “significant

nexus” actually existed; instead, the court concluded that

the wetland was a “water of the United States.” Jd. at *13.

Like Justice Kennedy in Rapanos, the court simply as-

sumed that a wetland geographically near a body of

“water” is not isolated, and thus had a significant effect on

navigable waters. Therefore, the court held that the Corps

was justified in regulating the property. Jd. at *15.

The Court of Appeals for the Ninth Circuit, in con-

trast, has applied a modified version of Justice Kennedy’s

test to determine CWA jurisdiction. Healdsburg, 457 F.3d

at 1029. Despite that the man-made pond in question and

a navigable-in-fact river were adjacent — separated by a

levee as little as 50 feet wide in places and would therefore

be presumed to have a “significant nexus” according to

Justice Kennedy — the court examined whether the pond

significantly affected the chemical integrity of the adjacent

river. Jd. at 1030. The court examined not just the effects

that the pond might have on the Russian River, but also

examined the effect of the pond in conjunction with that of

nearby wetlands. Jd. at 1026. The court held, because the

Corps showed that water from the pond seeped into the

River, there was a significant nexus. Jd. at 1031. The

nexus between the pond and the river, though, was pri-

marily due to groundwater seepage and only occasionally

due to breaches in the levee during flooding. Jd. Despite

the reliance on non-jurisdictional waters — groundwater —

the court looked to the actual effect of the water in ques-

tion and a navigable-in-fact river and did not just assume

a “significant nexus.” Thus, the Ninth Circuit found

jurisdiction based upon a test that is neither true to

Justice Kennedy’s concurrence in Rapanos, nor consistent

with precedent excluding groundwater from the CWA’s

reach.

The Ninth Circuit later applied the same modified

version of Justice Kennedy’s test when an environmental

group attempted to force the Corps to exercise jurisdiction

over a wastewater pond near a navigable slough that

emptied into San Francisco Bay. San Francisco Baykeeper,

481 F.3d 704-710. The man-made wastewater pond in

question was separated from a navigable-in-fact slough, a

tributary of San Francisco Bay, by a levee. Jd. at 702. The

Corps failed to show that water from the pond ever en-

tered the slough. Jd. at 705. As in Healdsburg, the court

refused to presume a “significant nexus” based upon mere

adjacency. Accordingly, the Ninth Circuit held that the

pond was not within CWA jurisdiction because the connec-

tion between the pond and the slough was, at best, specu-

lative. Jd. at 708.

Yet other courts have adopted Justice Stevens’s

suggestion, in his dissenting opinion in Rapanos, and have

* Courts have held consistently that groundwater falls outside of

the CWA’s jurisdiction. See, e.g., Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 962, 965-966 (7th Cir. 1994) (rejecting CWA jurisdiction

over an artificial retention pond with only a groundwater connection to

other waters because “[nJeither the Clean Water Act nor the EPA’s

definition asserts authority over groundwaters”).

examined both the plurality’s and Justice Kennedy’s tests

to determine CWA jurisdiction. Rapanos, 126 S.Ct. at

2264-2265 (Stevens, J., dissenting). However, unlike the

Ninth Circuit in Healdsburg, these courts do not require a

showing of both adjacency and a “significant nexus.” See,

e.g., Johnson, 467 F.3d at 57. In the case at bar, for exam-

ple, the First Circuit examined how other courts have

applied Rapanos. Johnson, 467 F.3d at 60-62. The court

concluded that the best method to determine CWA juris-

diction would be — as per Justice Steven’s Rapanos dissent

— to find jurisdiction whenever a majority of this Court

might find jurisdiction proper. Jd. at 65. The court went on

to remand the case to be decided according to either the

plurality’s test or Justice Kennedy’s “significant nexus”

test. Id. at 57. The court held that jurisdiction could be

based upon either test because, under either test, the four

Rapanos dissenting Justices would likely find jurisdiction

proper, thus resulting in a majority of this Court finding

jurisdiction. Jd. at 65.

The District Court for the District of Connecticut,

examining Johnson, held that the First Circuit’s applica-

tion of either test for CWA jurisdiction was a reasoned

approach. Simsbury-Avon Pres. Soc’y, LLC v. Metacon Gun

Club, Inc., 472 F.Supp.2d 219 (D.Conn. 2007). The court

held that the wetland on the defendant’s property was

near, but not adjacent to, a navigable-in-fact river, thus a

“significant nexus” could not be presumed. The court also

held that, because the plaintiffs failed to show that the

defendant had caused lead contamination into the adja-

cent navigable river, no “significant nexus” between the

two existed. Jd. at 230. Thus, jurisdiction was lacking

under Justice Kennedy’s test. Jd. Moreover, the court also

held that, because there was no continuous surface con-

nection between the wetlands in question and the adjacent

navigable river, CWA jurisdiction was also lacking under

the plurality’s test. Jd. at 229. Because neither Rapanos

test was satisfied, the court held that the wetland in

question was outside the jurisdiction of the CWA. Id. at

229-230.

Standing in stark contrast to the approaches of other

courts is that of the Northern District of Texas. In United

States v. Chevron Pipe Line Co., the court declined to apply

either of the tests outlined in Rapanos. 437 F.Supp.2d 605

(N.D.Tex. 2006). The court implicitly accepted that Justice

Kennedy’s concurrence was controlling, but held that the

“significant nexus” test was too ambiguous to apply to the

case before it. Id. at 613-614 (“This test leaves no guidance

on how to implement its vague, subjective centerpiece.

That is, exactly what is ‘significant’ and how is a ‘nexus’

determined?”). Instead, following Chief Justice Robert’s

concurrence, the court applied its pre-Rapanos precedent

to determine the scope of the CWA. Id. The Fifth Circuit,

in cases decided prior to Rapanos, interpreted this Court’s

CWA precedent strictly, denying CWA jurisdiction where

waters were only intermittently connected to navigable

waters. See, e.g., Rice v. Harken Exploration Co., 250 F.3d

264 (5th Cir. 2001) (declining CWA jurisdiction based upon

oil leaks onto dry land, intermittent streams, and ground-

water). The court applied this pre-Rapanos precedent to

find jurisdiction lacking.

In summary, the Seventh Circuit and the Northern

District of Indiana have applied Justice Kennedy’s concur-

rence to determine CWA jurisdiction after Rapanos. The

Ninth Circuit applies a modified version of Justice Ken-

nedy’s test, requiring the presence of adjacency and a

“significant nexus” to establish CWA jurisdiction. The

First Circuit and the District of Connecticut have followed

Justice Steven’s Rapanos dissent and apply either Justice

Kennedy’s test or that of the plurality to establish jurisdic-

tion under the premise that the four dissenting Justices in

Rapanos would concede jurisdiction when either of the

other two tests are satisfied. Finally, the Northern District

of Texas continues to apply the pre-Rapanos precedent of

the Fifth Circuit to determine CWA jurisdiction.

CONCLUSION

The CWA was meant to be a comprehensive, uniform

means of addressing water pollution nationally. 33 U.S.C.

§ 1252(a). Nonetheless, as a result of the Corps’s practices

and the courts’ erratic application of this Court’s prece-

dent, we have a fractious, unpredictable law. Jurisdic-

tional determinations vary by court: it may be found over

waters hundreds of miles removed from any navigable

water, yet may be denied over waters a few hundred feet

removed from a major navigable thoroughfare. While

groundwater is exempted from CWA regulation, a ground-

water connection has been used as a basis for finding a

“significant nexus” and thus CWA jurisdiction. Moreover,

the application of Rapanos, in conjunction with Riverside

Bayview and SWANCC, varies by court. Absent a decision

by this Court, the Corps will continue to regulate without

meaningful oversight. Lower courts will continue to apply

this Court’s ruling in Rapanos in an irregular manner,

utilizing different tests on a case-by-case, circuit-by-circuit

basis. This Court should grant certiorari in order to clarify

the reach of the CWA.

Respectfully submitted,