Amicus Curiae Brief — Newdunn Associates, LLP v. United States Army Corps of Engineers

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(3) DEC 3 1 2003

No. 03-637 OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

NEWDUNN ASSOCIATES, LLP: ORION ASSOCIATES;

NORTHWEST CONTRACTORS CORPORATION,

Petitioners,

UNITED STATES ARMY CORPS OF ENGINEERS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE OF

THE AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

JOHN J. RADEMACHER *

General Counsel

AMERICAN FARM BUREAU

FEDERATION

225 Touhy Avenue

Park Ridge, IL 60068

(847) 685-8732

* Counsel of Record Counsel for Amicus Curiae

—————————E———Ee

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........cccccccsssocesscosesoeessossers

INTEREST OF AMICUS CURIAE ......1.ssccssseesseeereeees

ARGUMENT ...000ccvssssevsensoscscsesscvevensvcnssossnsvesesvsossnvovesseees

II.

CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT AMONGST

THE CIRCUITS OVER THE REACH

OF SECTON 404 REGULATORY

JURE DICTION ..ccosossosrscssrsesesosesevsscceseosoversonens

CERTIORARI SHOULD BE GRANTED

SO THAT THIS COURT CAN _ RE-

SOLVE THE UNCERTAINTY AS TO

WHAT ARE JURISDICTIONAL NON-

AJACENT WETLAND. ...........ccccscsercressereeesees

CONCLUSION ..scosscossccssscosssvesscecescossovcssossssseeneovessovsooee

(i)

TABLE OF AUTHORITIES

CASES Page

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

(Sais Cae... FFE P sevncnisicntncenencnnsinpiincsaiienneitiiansantin 4,6

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531

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United States v. Needham, F.3d

CS Se. BP venivinisisitsateabbiinasicibediehessiinehaiiaapibtaiaiainie 4,6

United States v. Newdunn Associates, LLP, et al.,

544 FSS GOT (4s Cie, FED ccevscescnsovsvecnsvensnesins 6

United States v. Newdunn Associates, LLP, et al.,

195 F. Supp. 2d 751 (E.D. Va. 2002)............00.. 5

United States v. Riverside Bayview Homes, Inc.,

GFE GER. Be Se cccdiiadenasiaihlateissetnnietinicinen 3,8

STATUTES AND REGULATIONS

Clean Water Act Section 404, 33 U.S.C § 1344.... passim

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39 CP BR. & Fi 8 Desstaescenionsiiineminnvinnnaieniciennsnnes 5

39 CPR. | Se Pevcnicnenisnnnrsniinndsanheonsinsainniainn 5

DS CFR. & FEIT ecvccinsiinintncrnaiapeivitinuciianinnionns 5

MISCELLANEOUS

EPA and Army Corps Issue Wetlands Decision,

Headquarters Press Release, U.S. Environmen-

tal Protection Agency, December 16, 2003....... 9

EPA, Appellate Divisions May Return Water Act

Battle To High Court, Inside EPA, Decem-

eT LT eee TD 9

U.S. Won’t Narrow Wetlands Protection, New

York Times, December 17, 2003..................0000 9

IN THE

Supreme Court of the United States

No. 03-637

NEWDUNN ASSOCIATES, LLP; ORION ASSOCIATES;

NORTHWEST CONTRACTORS CORPORATION,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE OF

THE AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

The American Farm Bureau Federation respectfully sub-

mits this brief as amicus curiae with the written consent of

the parties given and filed with the Clerk.!

INTEREST OF AMICUS CURIAE

The American Farm Bureau Federation (“Farm Bureau”) is

a voluntary general farm organization formed in 1919 and

organized in 1920 under the General Not-For-Profit Act of

' Counsel for amicus curiae have aachored this brief in whole and no

other person or entity other than amicus, its members or counsel have

made a monetary contribution to the preparation or submission of

the brief.

the State of Illinois. Farm Bureau was founded to protect,

promote, and represent the business, economic, social and

educational interests of American farmers and ranchers.

Farm Bureau has member organizations in all fifty states and

Puerto Rico representing more than 5 million member

families. Farm Bureau has participated as an amicus curiae in

many cases in this Court and the courts of appeals involving

issues of paramount concern for its farmer and rancher

members, particularly cases such as this one that involve

issues arising under Section 404 of the Clean Water

Act (“CWA”).

Farm Bureau farmer and rancher members produce vir-

tually every kind of agricultural commodity produced com-

mercially in the United States. They own or lease significant

amounts of property on which they depend for their

livelihoods and upon which Americans rely for food and fiber

and other basic necessities. Like all farmers and ranchers in

the United States, they are increasingly becoming subject to

restrictive regulations at the local, state and national levels

that impair their ability to farm productively and _profit-

ably. Indeed, in some instances that ability is being elim-

inated altogether.

The protection of wetlands under Section 404 of the CWA

is one of the more serious and contentious problems that

production agriculture faces today. From its inception in

1972 and its court ordered expansion in 1975, the Section 404

permit program remains a controversial, complex and con-

tentious program.

Farm Bureau has followed the wetlands protection evo-

lution for nearly three decades and watched it take on a life of

its Own as it marched relentlessly up the hill consuming ever

dryer lands. What was conceived as a statute to control the

pollution of water has been stretched and turned into a

national land use zoning act. Those forces which did not

succeed in getting federal land use control legislation enacted

in the 1960s and early 1970s have seized upon the Section

404 program as one of the more effective mechanisms to

impose federal regulatory measures on as much of the

American landscape as possible.

Farm Bureau and its farmer and rancher members have a

direct interest in the outcome of this case. One of the more

problematic aspects of the Section 404 regulatory program is

the uncertainty as to what are jurisdictional wetlands. Private

property Owners, especially farmers and ranchers who own

the bulk of the lands upon which potential jurisdictional

wetlands are to be found, are in desperate need of this Court’s

clarification of what are jurisdictional “non-adjacent wet-

lands” under Section 404 of the CWA and resolution of the

split amongst the circuits on the jurisdictional reach of the

Section 404 regulatory program.

ARGUMENT

Thus far this Court, in United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985), has determined only

“navigable” and “adjacent wetlands” to be jurisdictional

wetlands under the CWA. By way of a footnote, this Court

left open the question of jurisdiction over wetlands that are

“not adjacent to bodies of open waters.” 474 U.S. at 132 n.8.

The U.S. Army Corps of Engineers (“Corps”) has taken the

most liberal of stances on the issue and has attempted to exert

Section 404 jurisdiction over virtually any and all wetlands

no matter how isolated or remote. In overturning the Corps’

“migratory bird rule”, this Court recently offered further

guidance on the extent of the Corps’ jurisdiction under

Section 404 in Solid Waste Agency of Northern Cook C ounty

v. United States Army Corps of Engineers, 531 U.S. 159

(2001) (““SWANCC”). In SWANCC, this Court found that the

plain text and import of Section 404 is that it reaches only

waters and wetlands that have a “sufficient nexus” and are

“inseparably bound up with” waters of the United States, and

applying that standard, does not reach “nonnavigable,

isolated, intrastate waters.” Jd. at 169-170.

In response to SWANCC, the Corps effectively substituted

the “migratory bird rule” with a “migratory raindrop rule” in

its Section 404 regulatory posture. The Corps has asserted, in

this and other cases, federal regulatory authority over wet-

lands that have only an ephemeral, intermittent, occasional

and indirect man-made hydrological connection to navigable

waters located miles distant.

The Fourth Circuit in this case has upheld the Corps’ broad

assertion of Section 404 jurisdiction. The Fourth Circuit's

decision allows the Corps to impose its Section 404 regu-

latory burdens on any land use activity in any wetland from

which a drop of water may ultimately find its way to nav-

igable waters. The Fourth Circuit even found that man-made

ditches and culverts were waters of the United States.

The Fourth Circuit’s decision in this case is not only at

odds with this Court’s decision in SWANCC, but also in direct

conflict with the decisions of the Fifth Circuit interpreting

and applying the guidance set forth in SWANCC. The Fifth

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

(5th Cir. 2001), and most recently in its December 16, 2003

decision in United States v. Needham, F.3d (5th

Cir. 2003), reads SWANCC to authorize Section 404 juris-

diction over waters that are actually navigable or adjacent to

an open body of navigable water. The Fifth Circuit

determined small seasonal creeks and intermittent streams

which only infrequently contain running water not to be

sufficiently linked to navigable waters to qualify themselves

as navigable waters.

Thus, there is a need for this Court to grant certiorari to

resolve the conflict amongst the circuits over the authority of

the Corps to regulate discharges of dredged or fill material

into wetlands that are not adjacent to bodies of open waters

and to further clarify its guidance in SWANCC to the effect

that wetlands that are not adjacent to actually navigable

waters do not have a “sufficient nexus” to be jurisdictional

wetlands under Section 404 of the CWA.

I. CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT AMONGST THE

CIRCUITS OVER THE REACH OF SECTION

404 REGULATORY JURISDICTION

This case originated as a CWA Section 404 enforcement

action by the Corps for unauthorized activities in a wetland.

Section 404 regulates “the discharge of dredged or fill

material into the navigable waters at specified disposal sites.”

33 U.S.C. § 1344. The CWA defines “navigable waters” as

“the waters of the United States, including the territorial

seas.” 33 U.S.C. § 1362(7). The CWA does not define

“waters of the United States.” Corps regulations define

“waters of the United States” to include “[a]ll waters which

are currently used, or were used in the past, or may be

susceptible to use in interstate or foreign commerce, in-

cluding all waters which are subject to the ebb and flow of the

tide” (33 C.F.R. § 328.3(a)(1)), tributaries of such waters (33

C.F.R. § 328(a)(5)), and wetlands adjacent to such waters or

their tributaries. 33 C.F.R. § 328.3(a)(7). Corps regulations

do not define “tributaries” and do not define manmade

ditches for drainage or irrigation as navigable waters of the

United States.

The trial court ruled that the Corps did not have jurisdiction

over the wetlands in question. United States v. Newdunn

Associates, LLP, et al., 195 F. Supp. 2d 751 (E.D. Va., 2002).

The Corps had claimed jurisdiction upon the basis of a

hydrological connection between the wetlands and the

navigable portion of a stream some miles distant. The trial

court carefully traced the tenuous hydrological connection

involved through a spur ditch, a man made drainage ditch and

through a culvert under an interstate highway. The trial court,

applying this Court’s guidance in SWANCC, concluded that

the Corps had not established a sufficient connection between

the wetlands in question and navigable waters or waters of the

United States. The trial court rejected the Corps’ assertion

that a culvert or storm drain pipe is a “tributary.” The trial

court opined that the Corps’ assertion of jurisdiction over the

wetlands in question far exceeded the grant of authority by

Congress in the CWA.

On appeal, the Fourth Circuit reversed. United States v.

Newdunn Associates, LLP, et al., 344 F.3d 407 (4th Cir.

2003). The Fourth Circuit held that there was a “sufficient

nexus” in the attenuated connections between the wetlands

and the navigable portion of a stream. The Fourth Circuit’s

decision allows the Corps to assert Section 404 jurisdiction

over wetlands adjacent to nonnavigable tributaries of nav-

igable waters, and to consider intermittent and ephemeral

waters in man made ditches, culverts and drains located miles

distant from navigable waters as “tributary.”

The Fourth Circuit’s decision in this case is in direct

conflict with decisions of the Fifth Circuit. The Fifth Circuit

was the first court of appeals to consider the jurisdictional

scope of the term “navigable waters” after SWANCC. In Rice

v. Harken Exploration Co., supra, the Fifth Circuit retreated

from its previous broad interpretation and ruled that federal

regulatory authority does not extend to waters or wetlands

“that have only an indirect, remote and attenuated connection

with an identifiable body of ‘navigable waters.’” /d. at 272.

The Fifth Circuit has most recently reconsidered and

reaffirmed its position on navigable waters taken in Rice. On

December 16, 2003, the Fifth Circuit issued its decision in

United States v. Needham, supra, and stated therein:

The OPA imposes strict liability upon parties that

discharge oil into “navigable waters,” a term defined in

the statute to mean “the waters of the United States,

including the territorial sea.” 33 U.S.C. § 2701(21)

(2000)). [Footnote omitted.] This is co-extensive with

the definition found in the Clean Water Act (“CWA”).

See Rice v. Harken Exploration Co., 250 F.3d 264, 267

(Sth Cir. 2001) (citing 33 U.S.C. § 1362(7) (2000)).

[Footnote omitted.] Rice establishes that the OPA, like

the CWA, does not extend federal regulation to the

outermost limits of the Commerce Clause. /d. at 269-70.

Although under both the OPA and the CWA “waters and

wetlands need not always be navigable-in-fact to be

protected,” id. at 268, the Supreme Court recently found

the inclusion within “waters of the United States” of

certain isolated, non-navigable waters exceeded the

Army Corps of Engineers’ regulatory power under the

CWA. Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers (“SWANCC”),

531 U.S. 159, 172-74, 121 S.Ct. 675, 682-84 (2001).

The Court emphasized that these isolated bodies of water

were neither navigable-in-fact nor adjacent to open

water. /d. at 168.

* * *

Nevertheless, the United States urges this court to

approve its regulatory definition of “navigable waters.”

See 40 C.F.R. § 300.5 (2003). This definition includes

as “navigable waters” all “tributaries” of navigable-in-

fact waters. See id. at § 300.5(d). According to the

government, the definition covers all waters, excluding

groundwaters, that have any hydrological connection

with “navigable water.” At least two courts appear to

have agreed with this expansive interpretation. See

United States v. Deaton, 332 F.3d 698, 702 (4th Cir.

2003) (asserting authority, under the CWA, over

wetlands that are “adjacent to, and drain into, a roadside

ditch whose waters eventually flow into navigable

Wicomico River and Chesapeake Bay”); United States v.

Rapanos, 339 F.3d 447, 449 (6th Cir. 2003) (asserting

authority, under the CWA, over wetlands that flow into a

man-made drain, which in turn flows into a creek, which

in turn flows into a navigable river).

In our view, this definition 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. See Rice, 250

F.3d at 269. 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.” Rice, 250 F.3d at 269.

Slip Opinion, pp. 7-8.

As a result, there currently exists disparate wetland regu-

lation for property owners in the Fourth and Sixth Circuits

versus the owners of property in the Fifth Circuit. Such dis-

parate regulation of wetlands is untenable. Property owners

are entitled to consistent regulatory treatment under Section

404 of the CWA throughout the United States. This Court

should, therefore, grant certiorari to resolve the conflict, and

to more clearly define jurisdictional “non-adjacent wetlands.”

Il. CERTIORARI SHOULD BE GRANTED SO

THAT THIS COURT CAN RESOLVE THE

UNCERTAINTY AS TO WHAT ARE JURIS-

DICTIONAL NON-ADJACENT WETLANDS

As the split amongst the circuits obviates, there is a great

need for this Court to decide the important issue which it

specifically reserved in United States v. Riverside Bayview

Homes, Inc., supra, as to what are jurisdictional non-adjacent

wetlands. This Court narrowed the issue in SWANCC by

holding that the Corps’ Section 404 jurisdiction does not

reach ponds not adjacent to navigable waters that are used by

migratory birds. This Court found that the plain text and

import of Section 404 is that it reaches only waters and

wetlands that have a “sufficient nexus” and are “inseparably

bound up with” navigable waters, and that applying that

standard Section 404 does not reach “nonnavigable, jsolateé—————

intrastate waters.” 531 U.S. 167, 169-170.

Since SWANCC, the Corps has been successful in the

Fourth and Sixth Circuits in advancing a regulatory posture of

asserting Section 404 jurisdiction over all water with any

hydrological connection to navigable waters, no matter how

remote and attenuated. In so doing, the Corps has effectively

replaced the “migratory bird rule” with a more potent “mig-

ratory raindrop rule” that leaves virtually no water anywhere

in the nation beyond the Corps’ regulatory reach.

In the wake of SWANCC, the Corps had sought public

comment to determine if further regulatory clarification was

needed. However, on December 16, 2003, the Environmental

Protection Agency (“EPA”) and the Corps issued a joint press

release announcing that they would not be issuing a new rule

on federal regulatory jurisdiction over isolated wetlands.

EPA and Army Corps Issue Wetlands Decision, Headquarters

Press Release, U. S. Environmental Protection Agency,

December 16, 2003. In so doing, the EPA and the Corps

reportedly jettisoned an internal draft of revised rules in

response to SWANCC that proposed withdrawing federal

protection from many isolated wetlands and intermittent

streams. See U.S. Won’t Narrow Wetlands Protection, New

York Times, December 17, 2003. In dropping plans for

rulemaking, the agencies indicated that, with the degree of

success they have realized in the Fourth and Sixth Circuits,

they were content to allow the courts to clarify the bounds of

Corps’ Section 404 jurisdiction. See EPA, Appellate Deci-

sions May Return Water Act Battle To High Court, Inside

EPA, December 19, 2003 (“[EPA Administrator] Leavitt said

the agency believes it should continue reviewing data on the

issue while allowing the ‘courts to go forward and address the

jurisdiction issue’ on a case-by-case basis.”).

Thus, without this Court’s review in this case, the regu-

latory reach of the Section 404 wetlands program will exceed

that which this Court fended off in SWANCC. Further, the

regulatory reach of Section 404 will continue to be deter-

mined on an ad hoc basis with inconsistent results from

different Corps divisions and courts. Whether the Corps

asserts Section 404 jurisdiction over a particular wetland will

depend upon where in the country the wetland is located.

Such expansive and disparate regulation of wetlands is

untenable.

Private property owners, especially America’s farmers and

ranchers upon whose lands the bulk of the non-adjacent

wetlands are to be found, are entitled to consistent treatment

under the CWA and its Section 404 program throughout the

country. It is critical, therefore, that this Court grant cer-

tiorari to resolve the conflict amongst the circuits, to resolve

the uncertainty as to what are jurisdictional non-adjacent

wetlands, and to once again rein in regulatory overreaching

by overzealous federal agencies.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,