Amicus Curiae Brief — Deaton v. United States

Supreme Court, U.S.

FILED

JAN 30 2004

) OFFICE OF THE CLERK

No. 03-701

\ In The

Supreme Court Of The United States

JAMES S. AND REBECCA DEATON,

Petitioners,

7.

UNITED STATES OF AMERICA, |

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE HONORABLE

JOHN J. DUNCAN, JR. INSUPPORT OF THE

PETITIONERS

NS SRLS TYREE TALS s ISTE LE EERE TOL NEN LOEE LEE EE LE, EBERT BBE ARIE AE

Thomas C. Jackson*

Kelley Drye & Warren LLP

1200 19" Street, N.W.

Suite 500

Washington, D.C. 20036

Counsel for Amicus Curiae

*Counsel of Record

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ...............0ccccssssssorsessosossssenees l

SUMMARY OF ARGUMENT ...............csssercesessssrerssessoees 1

PIII wivvsisnscssicccevrniivvensnennnsiannerenhnnssciisvnsimmanvinvten 3

I. THE DECISION BELOW IMPROPERLY

INTERPRETED THE STRUCTURE AND

OPERATION OF THE CLEAN WATER

Il. THE DECISION BELOW WOULD GRANT

CORPS OFFICIALS THE AUTHORITY TO

GREATLY EXPAND FEDERAL

REGULATION OF LAND ...........cccccsssscssreesssresseees 1]

Il. ©THE AGENCIES CHARGED WITH

IMPLEMENTING THE CLEAN WATER

ACT AND THE DECISION BELOW HAVE

LEFT THE DETERMINATION OF THE

JURISDICTIONAL SCOPE OF THE ACT

TO ARBITRARY AND INCONSISTENT

CASE-BY-CASE DETERMINATIONS BY

AGENCY OFFICIAL. ..............ssccscseessresssreeeseeeenens 12

IV. THE DECISION BELOW IS IN DIRECT

CONFLICT WITH DECISIONS OF THE

FIFTH CIRCUIT COURT OF APPEALS

AND HAS CREATED CONFUSION AND

AMBIGUITY OVER THE SCOPE OF ;

FEDERAL REGULATION ........ceceesseeeseeeereeeereens 15

CONCLUSION ......ccscessssosscosrscoecsssonvecseneronnesvarenconoscosossoones 16

ii

TABLE OF AUTHORITIES

CASES

A.L.A. Schechter Poultry Corp. v. United States,

295 US. SOG (IGS) cenvitini ionamin 8

Chevron, U.S.A, Inc.. v. Natural Resources

Defense Council, 467 U.S. 837 (1984) ..... eee 10

Needham v. United States, F.3d _s,

2003 WL 22953383 (Sth Cir. 2003).....2, 9,10, 14, 15

Newdunn Assoc., LLP v. U.S. Army Corps of

Eng'rs, 344 F.3d 407 (4th Cir. 2003),

petition for cert. filed, 72 U.S.L.W. 3310

(Ost. 27, POD eitcscumaciveaninisinmisediaty diane 4

Panama Refining Co. v. Ryan, 293 U.S. 388

(USSD nsasnessconsissiicapmeciaaioa aaa ainsi 7

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

(Sila Ce. BODE) sicvestnnisiienteccnndeeniaaiaiaalatniaidas 12

Rodriguez v. United States, 480 U.S. 522 (1987) ........... 7

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Eng'rs, 531 U.S. 159

CODE ) ce inwsosinisiniisisiacaiiieamiamammaam ans 3, 4, 8, 11

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

PIE) -«:s0rsnexsvvinsneivannaaaaam passim

United States v. Eidson, 108 F.3d 1336 (11th

Cee. FOF FD sicvsesssinccsiccnnesioseiiianam dana aaet i aaanes 7

United States v. Rapanos, 339 F.3d 447 (6th Cir.

2003), petition for cert. filed, 72 U.S.L.W.

3451 (Dec. 22, 2003) (No. 03-929)...............ssseeereeees 4

iil

STATUTES

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33 U.S.C. §§ 1291-130] ceccccscsccsssseessesssesssssseesssssseeeseeeen 6

MI, © GIy ions csissinsexcocssnvsscnnsssotnsnssoiasissnsess 3

I BI scsscsncsoonsoddvuasscsinsdarvvms avs shasvcoscbaces 6

ae ne One sas 6, 8

33 U.S.C. § 1342(p) ween ee res ee eee 7

oe ee eee lat 3, 6

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TO IID css ccsescssvswipssnvavonovercrsevectovnscanane 3

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SN Me BI oss socictcassensssssasnvovesessvsdcnvavsivarnvsnsesinantins 10

1V

REGULATIONS

33 CFR. § 323.4(a)(1)(iii)(A)(L)(@) coscscecccsccecccessee ead

re Le Ko. Ce Tne 4

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$3 URC, © SOB BEND oocecnceceerceseecinanrveerscrroamainaccbia 4

99 IG. § SRB BIB) orcs cccsncsccsnancnssreroorecsintrderal 4

33 U.S.C. § 32B.3(A)(A) cccccscscescnscccssnsscscsersecccsessecesenees 4

33 U.S.C. § 328.3(0)(S)sonsscccrrsssesersorsenseessernssssseernasseeon 4

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53 USC, 6 SEMI occiessscccbdesscmvevesiercgcnrenros 4

WOOF RG TAB osc ces 4

MISCELLANEOUS

Brief for the United States as Amicus Curiae

Supporting Petitioner, South Florida Water

Management Dist. v. Miccosukee Tribe of

Indiana, No. 02-626 (filed Sept. 10, 2003)............... 6

Oe RT FR Fe Ce asin csniesecctvinciorectntccntines 13

Vv

The Wetland Permitting Process: Is It Working

Fairly?: Hearing Before the Subcommittee

On Water Resources And Environment Of

The House Committee On Transportation

And Infrastructure, 107" Cong. 1‘' Sess.

Se Fe I scstiatianetinclsnenscerdctmenicnenienocas 13

Agency Implementation Of The SWANCC

Decision: Hearing Before The

Subcommittee On Energy Policy, Natural

Resources And Regulatory Affairs Of The

House Committee On Government Reform,

107™ Cong., 2d Sess. (2002) 54-121 c.cccccccseccsessseen 13

EPA, Appellate Decisions May Return Water

Act Battle to High Court, Inside EPA (Dec.

BF y OAD sins conensinaninesnenaagaiee nana mae 14

l

STATEMENT OF INTEREST

With the written consent of the parties, reflected in

letters on file with the Clerk, this brief is submitted on behalf

of the Honorable John J. Duncan, Jr., as amicus curiae,

pursuant to Rule 37 of the Rules of this Court. The

Honorable John J. Duncan, Jr. is the Chairman of the Water

Resources and Environment Subcommittee of the House

Committee on Transportation and Infrastructure, which has

jurisdiction over the Clean Water Act and responsibility for

oversight over the implementation of that Act. In that role,

Congressman Duncan has a substantial interest in the

administration of the Clean Water Act and in ensuring that

the Act is administered in a way that is consistent with the

intent of Congress and fair to landowners and others who are

regulated under the Act. '

SUMMARY OF ARGUMENT

To uphold the assertion by the U.S. Army Corps of

Engineers (“Corps”) of jurisdiction under the Clean Water

Act, 33 U.S.C. §§ 1251-1387, over land at issue in United

States v. Deaton, 332 F.3d 698 (4th Cir. 2003) (“Deaton”),

the U.S. Court of Appeals for the Fourth Circuit has

interpreted the Act to provide broad authority to the Corps to

determine the scope of its jurisdiction with only the goals of

the Act to guide the Corps’ decision-making. Under this

authority inferred by the Fourth Circuit, the Corps may, on a

case-by-case basis, and without notice and comment, effect a

significant expansion of the jurisdiction of the United States

under the Clean Water Act. This decision has contributed to

' No counsel for a party authored this brief in whole or in part and no

person or entity, other than the amicus curiae or his counsel, made any

monetary contribution to the preparation or submission of this brief.

2

widespread confusion over the extent of federal regulation

and is in clear conflict with the ruling of the U.S. Court of

Appeals for the Fifth Circuit in Needham v. United States,

«F.3d — __,_:-« 2003: WL 22953383 (Sih Cir. 2003)

(“Needham’).

According to the Fourth Circuit, the jurisdiction of

the Clean Water Act extends to “any branch of a tributary

system that eventually flows into a navigable body of water,”

Deaton, 332 F.3d at 711. Federal regulations provide no

definition of the term “tributary.” The court below held that,

“the word ‘tributaries’ in the regulation [of the Corps] means

what the Corps says it means.” Id. (emphasis added). The

Corps’ exercise of this discretion must only seek to advance

the broad goals of the Act” and, to receive deference from a

reviewing court, the Corps’ interpretation of what constitutes

a “tributary” need only be consistent with the dictionary

definition of that word.”

This reasoning gives the Corps virtually unfettered

discretion to determine that a parcel of land is adjacent to a

tributary of a water of the United States, and therefore is

itself subject to federal jurisdiction as a water of the United

States. At present, landowners cannot know what activities

they may lawfully undertake on their property without

consulting with the Corps, and are at the mercy of arbitrary

decisions by regulatory officials.

In short, the Corps’ regulations defining the scope of

its jurisdiction under the Clean Water Act are ambiguous,

and the Fourth Circuit has given the Corps essentially free

reign to interpret its jurisdiction in an expansive manner,

> Deaton, 332 F.3d at 707 (quoting the goals of the Act), 712 (noting the

breadth of Congressional concern over water quality).

3 Id. at 710-11.

3

resulting in confusion and uncertainty among the regulated

community. The Corps has now abandoned any effort to

address this confusion and uncertainty on its own, leaving it

to the courts to provide clarity. However, the lower courts

are Clearly divided on the scope of the Corps’ jurisdiction.

As a result, this Court now truly represents the court of last

resort to bring much-needed clarity to the Clean Water Act

jurisdictional muddle.

ARGUMENT

I. THE DECISION BELOW IMPROPERLY

INTERPRETED THE STRUCTURE AND

OPERATION OF THE CLEAN WATER ACT

As this Court held in Solid Waste Agency of Northern

Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159

(2001) (“SWANNC”), in enacting the Clean Water Act in

1972, Congress had in mind the protection of traditional

navigable waters. However, the Fourth Circuit has ignored

the clear guideposts set out by this Court in SWANNC and as

a result has misinterpreted the jurisdictional scope of the

Clean Water Act. In doing so, the Fourth Circuit has given

the Corps great discretion in interpreting its jurisdictional

reach in particular cases.

The Clean Water Act prohibits the discharge of any

pollutant by any person without a permit under the Act. 33

U.S.C. § 1311(a). The Act defines “discharge of a pollutant”

as “any addition of any pollutant to navigable waters from

any point source.” /d. § 1362(12). The Deatons in this case

were alleged to have discharged a particular type of pollutant

— dredged or fill material — into navigable waters without a

permit under Section 404 of the Act, 33 U.S.C. § 1344,

which authorizes the Corps to issue permits for such

4

discharges to navigable waters. The Act defines “navigable

waters” as “the waters of the United States, including the

territorial seas.” /d. § 1362(7).

The Corps has sought to further define the

jurisdictional scope of the Clean Water Act for the purposes

of implementing section 404 by promulgating a definition of

“waters of the United States.” 33 C.F.R. § 328.3(a).* Under

this regulation, “waters of the United States” covers a wide

range of water bodies and wetlands, including waters that are

currently used, used in the past, or susceptible to use in

interstate or foreign commerce, including all waters subject

to the ebb and flow of the tide (i.e., traditional navigable

waters) (id. § 328.3(a)(1)); interstate waters including

interstate wetlands (id. § 328.3(a)(2)); all other waters the

use, degradation or destruction of which would affect

interstate or foreign commerce (id. § 328.3(a)(3)); all

impoundments of waters otherwise defined as waters of the

United States (id. § 328.3(a)(4)); tributaries of waters

identified in paragraphs (1) through (4) (id. § 328.3(a)(5));

the territorial seas (id. § 328.3(a)(6)); and wetlands that are

adjacent to any of the waters identified in paragraphs (1)

through (6) (id. § 328.3(a)(7)).

In this case, the Corps asserted federal jurisdiction

over the petitioners’ property on the grounds that it is a

wetland adjacent to a tributary of a water of the United

States.” The Corps’ regulation provides no definition of the

* The regulations of the U.S. Environmental Protection Agency (“EPA”)

include the same definition. 40 C.F.R. § 230.3(s).

> Deaton, 332 F.3d at 712. Before January 2001, the Corps used its

definition of waters of the United States to assert jurisdiction over

virtually any land that exhibited the soils, vegetation and hydrology that

are characteristic of wetlands. Once these characteristics were

established, the Corps could simply allege an impact on interstate or

5

term “tributary.” However, through a series of conclusory

arguments, the court below affirmed the Corps’ jurisdictional

determination by holding that the Clean Water Act confers

upon the Corps the broad authority to determine what is a

“tributary” of a navigable water, as long as the assertion of

federal jurisdiction serves to further the goal of attaining and

maintaining the quality of the Nation’s waters.

The analytical path traveled by the court below is

essentially as follows: whereas “[t]he power over navigable

waters also carries with it the authority to regulate non-

navigable waters when that regulation is necessary to

achieve Congressional goals in protecting navigable water,”

Deaton, 332 F.3d at 706 (emphasis added), and whereas

“[a]ny pollutant or fill material that degrades water quality in

foreign commerce under 33 C.F.R. § 328.3(a)(3) to establish federal

jurisdiction. However, in January 2001, this Court called into question

whether federal regulation extended to all waters the use, degradation or

destruction of which would affect interstate or foreign commerce.

SWANCC, 531 U.S. at 172-73 (requiring import to be given to the term

“navigable” and noting the outer limits of Congress’ power under the

Commerce Clause). Following the publication of that opinion, the Corps

more often has asserted jurisdiction over land that exhibits wetland

characteristics on the basis that it is a tributary of a navigable water, or

adjacent to a tributary of a navigable water. Indeed, following SWANCC,

most of the lawsuits involving landowners who disagreed with the

assertion of jurisdiction over their property by the Corps have involved

assertions of jurisdiction based on allegations that the property is

adjacent to a tributary of a navigable water. See, e.g., Newdunn

Associates, LLP v. U.S. Army Corps of Eng’rs, 344 F.3d 407 (4th Cir.

2003), petition for cert. filed, 72 U.S.L.W. 3310 (Oct. 27, 2003)(No. 03-

637) (assertion of jurisdiction based on allegation that land was adjacent

to a tributary of a navigable water); United States v. Rapanos, 339 F.3d

447 (6th Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3451 (Dec. 22,

2003) (No. 03-929) (same). Accordingly, the meaning of the term

“tributary” has taken on increasing significance.

6

a tributary of navigable water has the potential to move

downstream and degrade the quality of the navigable waters

themselves,” id., and whereas the goal of the Clean Water

Act is “to restore and maintain the chemical, physical, and

biological integrity of the Nation's waters,” 33 U.S.C.

§ 1251(a), quoted in Deaton, 332 F.3d at 706, and whereas

Congress delegated to the Corps of Engineers and EPA “the

job of getting this done,” Deaton, 332 F.3d at 706, therefore:

This use of delegated authority [by regulating

nonavigable tributaries and their adjacent

wetlands] is well within Congress’s

traditional power over navigable waters.

Id.

The import of this analysis is that a delegation of

authority to the Corps (using the goals of the Act as the only

intelligible principle to guide the agency’s decision-making)

is within Congress’s power, and that the Clean Water Act is

properly interpreted as a delegation from Congress to an

executive branch agency to do whatever it takes to get the

job done in restoring and maintaining the chemical, physical,

and biological integrity of the Nation’s waters.

That is not what the Clean Water Act says. The

Clean Water Act carefully prescribes — in _ninety-four

separate sections — how the goals of the Act are to be

implemented.° An implementing agency and a reviewing

° See, e.g., 33 U.S.C. §§ 1251-74 (research and grant programs); id.,

§§ 1291-1301 (construction grants for publicly owned treatment works);

Id. § 1329 (assistance for the management of unregulated nonpoint

sources); id. § 1342 (permitting program for point source discharges,

with exemptions); id. § 1344 (permitting program for discharges of

dredged and fill material, with exemptions). The United States has

recently recognized that “[t]he Clean Water Act addresses the problem of

en

_ ad mm

—

7

court must use the specific terms of the Clean Water Act to

determine the Act’s jurisdictional scope, not the broad goals

of the Act. As this Court has long recognized:

No legislation pursues its purposes at all

costs. Deciding what competing values will

or will not be sacrificed to the achievement of

a particular objective is the very essence of

legislative choice — and it frustrates rather

than effectuates legislative intent

simplistically to assume that whatever

furthers the statute’s primary objective must

be the law.

Rodriguez v. United States, 480 U.S. 522, 525-26 (1987).’

water pollution control through a multi-faceted federal-state approach,”

with different sections of the Act addressing different aspects of the

problem. Brief for the United States as Amicus Curiae Supporting

Petitioner, South Florida Water Management District v. Miccosukee

Tribe of Indiana, No. 02-626 (filed Sept. 10, 2003), at 3.

” Section 402(p) of the Clean Water Act provides a good example of

legislative choice. Section 402(p) requires municipalities to bring storm

water discharges from municipal separate storm sewer systems under

Clean Water Act regulation over time and to regulate those discharges

“to the maximum extent practicable.” 33 U.S.C. § 1342(p). Allowing

municipalities time to come into compliance and establishing a separate,

“maximum extent practicable” standard for these discharges from the

ditches and storm sewers in our cities and suburbs that convey drainage

and runoff to navigable waters demonstrates the choice made by

Congress to subject discharges from these types of conveyances to less

regulation than discharges from industrial sources. However, this

legislative intent could be completely upset by the decision of the lower

court. Under the rationale of the decision below, municipal separate

storm sewer systems could themselves be considered waters of the

United States, prohibiting unpermitted discharges into those sewers and

8

As this Court noted in SWANCC, Congress provided

an intelligible principle to guide the Corps’ determination of

the meaning of the term “waters of the United States.”*

However, that principle is not the goals of the Act. Rather, it

is “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.” SWANCC, 531 U.S. at 172. This does not mean

that only traditional navigable waters are jurisdictional.

However, it does mean that the Corps and reviewing courts

must consider how all sections of the Clean Water Act work

together to protect navigable waters and that, given statutory”

and constitutional’ constraints, the Corps — and the courts —

requiring the water in the sewer itself to meet water quality standards,

-esulting in far more extensive regulation than that contemplated by

section 402(p) of the Clean Water Act. Cf United States v. Eidson, 108

F.3d 1336 (11" Cir. 1997) (holding that a drainage ditch that was part of

a storm drainage system was a tributary of a navigable water even though

it was man-made).

® Amicus does not contend that the Clean Water Act violates the

nondelegation doctrine. Cf Panama Refining Co. v. Ryan, 293 U.S. 388

(1935) (finding no intelligible principle to guide agency-decision

making, in violation of art. I, § 1 of the United States Constitution);

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)

(same).

” See SWANCC, 531 U.S. at 166-67 (noting that in the Clean Water Act,

“Congress chose to ‘recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce, and eliminate

pollution, to plan the development and use (including restoration,

preservation, and enhancement) of land and water resources, and to

consult with the Administrator in the exercise of his authority under this

chapter.’”’).

'0 See SWANCC, 531 U.S. at 174 (noting that the exercise of federal

jurisdiction over land and water can raise “significant constitutional

questions”).

9

may not expand federal jurisdiction over land and water

resources beyond that which is necessary to protect

traditional navigable waters.

By relying solely on the goals of the Act as the

principle to guide agency decision-making, the decision

below ignores the specific authorities established by

Congress in the Clean Water Act that protect navigable

waters. The Fourth Circuit appears to believe that the only

regulatory tool available to protect the quality of the Nation's

waters is a finding that a ditch or other conveyance, through

which pollutants may be transported to navigable waters, is

itself a “water of the United States.” Most significantly, the

Fourth Circuit has ignored the role that section 402 of the

Act, 33 U.S.C. § 1342, plays in protecting navigable waters

from pollution.

Section 402 of the Act authorizes and regulates

permits for the discharge of pollutants from point sources.

The Act defines “point source” as “any discernible, confined

and discrete conveyance, including but not limited to any

pipe, ditch, channel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which

pollutants are or may be discharged.” 33 U.S.C. § 1362(14).

The point source itself is not a “water of the United States.”

It is the discharge from the point source into waters of the

United States that is regulated. This regulatory structure

imposes federal authority at the proper place to protect the

federal interest in navigable waters without infringing upon

the use of private property and other land and water uses

traditionally regulated by States, i.e., the point of discharge

into navigable waters.

Consistent with this structure, a ditch constructed in

upland areas is not a water of the United States. E.g. See 33

10

C.F.R. § 323.4(a)(1)(iii)(C)(1)G). However, under the Clean

Water Act, a discharge of a pollutant from a ditch into

navigable waters may be regulated and may require a Clean

Water Act permit. For example, in Needham, the Fifth

Circuit found that a regulated discharge had occurred

without determining that non-navigable ditches and channels

were waters of the United States. 2003 WL 22953383 (5"

Cir. 2003). In that case, which was brought under the Oil

Pollution Act (“OPA”), 33 U.S.C. §§ 2701-20, oil spilled

into a non-navigable drainage ditch that was not adjacent to a

navigable water. The court indicated that this discharge

would not be regulated under OPA or the Clean Water Act.

2003 WL 22953383 at *3. However, when the oil moved

from the ditch and discharged into Bayou Folse (a primary

tributary of a navigable-in-fact water), the release of oil

berame regulated under the OPA. Jd. at *4.!'

Under the Clean Water Act, it is not necessary to find

that ditches, sewers, or other conveyances are themselves

waters of the United States to protect navigable waters from

discharges of pollutants from those conveyances. Sections

301 and 402 of the Act regulate these discharges. Moreover,

the Clean Water Act is not a grant of plenary authority to the

Corps “to get the job done.” Without the ability to rely on

these assumptions, the logic of the decision below falls apart

and its finding that the Corps may regulate virtually any area

of land or water as a “tributary” of a navigable water, as long

as that regulation advances the goals of the Clean Water Act,

is clear error.

'' See 33 U.S.C. § 2702 (imposing liability on persons responsible for the

discharge of oil from a facility into navigable waters).

11

II. THE DECISION BELOW WOULD GRANT

CORPS OFFICIALS THE AUTHORITY TO

GREATLY EXPAND FEDERAL REGULATION

OF LAND

After concluding its constitutional and statutory

analysis, the court below held that the Corps’ determination

of what constitutes a “tributary” is entitled to deference

under Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984). To determine whether the

Corps committed error, the lower court did not consider any

section of the Clean Water Act other than the goals of the

Act. Instead, the lower court simply referred to the

dictionary definition of the term “tributary.”

By referencing the dictionary definition, rather than

the terms of the Clean Water Act, the court below has invited

individual Corps officials to regulate anything that is

“providing with or serving as a channel for supplies or

additional matter” to a navigable water. See Deaton, 332

F.3d at 710 (quoting Webster’s Third New International

Dictionary (1993)). As the Fourth Circuit noted,

“[a]ccording to this definition, ‘tributary’ in the regulation

would encompass the entire feeder system for a navigable

water because even a stream many branches away eventually

provides ‘additional matter’ for the navigable water.” Jd

Unfortunately, this definition is not limited to streams and

also would encompass all things through which or over

which water flows, including sewer pipes, roads, driveways,

> “Because the Corps’s longstanding interpretation of the word

‘tributary’ has support in the dictionary and elsewhere, it is not plainly

erroneous.” Deaton, 332 F.3d at 711.

12

and even the ground, as well as the ditches at issue in

Deaton.

_ Tronically, relying on this opinion, the Corps might

well be able to assert jurisdiction over the isolated ponds at

issue in SWANCC, because it is likely that some connection

could be found between those ponds and navigable waters. '°

In fact, by providing a justification for the regulation of

groundwater and land on which water falls and seeps into the

ground, the decision below would support an expansion of

federal jurisdiction over land that does not even exhibit

wetlands characteristics, as long as any _ hydrologic

connection to navigable waters (no matter how attenuated)

could be found.

This concern is not speculative. In Rice v. Harken

Exploration Co., 250 F.3d 264 (Sth Cir. 2001) (“Rice’’), the

plaintiff alleged that the jurisdictional scope of the Oil

Pollution Act (which applies to navigable waters and

includes a definition of navigable waters that is identical to

the definition in the Clean Water Act) extends to the release

on dry land of oil that seeped into ground water. In Rice, the

Fifth Circuit declined to find that the land at issue was

subject to federal jurisdiction, but the reasoning of the Fourth

Circuit in Deaton would support the opposite conclusion.

Compare Rice, 250 F.3d at 269, 272 with Deaton, 332 F.3d

at 710-11.

il. THE AGENCIES CHARGED WITH

IMPLEMENTING THE CLEAN WATER ACT

AND THE DECISION BELOW HAVE LEFT

THE DETERMINATION OF THE

'’ Justice Stevens makes this point in his dissenting opinion in SWANCC.

See SWANCC at 175, n.2 (Stevens, J. dissenting).

13

JURISDICTIONAL SCOPE OF THE ACT TO

ARBITRARY AND INCONSISTENT CASE-BY-

CASE DETERMINATIONS’ BY AGENCY

OFFICIALS

Given its failure to constrain the Corps’ discretion in

a meaningful way, the decision below does not increase the

clarity of the Corps’ regulations defining the scope of its

jurisdiction and will undermine any efforts to increase the

level of consistency of its application. The decision gives

the Corps unfettered discretion to determine that private

property is adjacent to a tributary and therefore a “water of

the United States.” As exercised by individual agency

officials, this discretion is fraught with the potential for error

and abuse.

Concerns have already been raised about the arbitrary

and inconsistent actions of regulatory officials implementing

section 404 of the Clean Water Act. In October 2001, the

Subcommittee on Water Resources and Environment of the

Committee on Transportation and Infrastructure held a

hearing on the enforcement of section 404 by the Corps and

EPA. Testimony at the hearing included allegations of

arbitrary decision-making, intimidation, harassment, and

abuse of discretion by agency officials charged with making

the decisions regarding whether or not a piece of property is

a “water of the United States.”'* In September 2002, the

Subcommittee on Natural Resources and Regulatory Affairs

'* The Wetland Permitting Process: Is It Working Fairly?: Hearing

Before the Subcommittee On Water Resources And Environment Of The

House Committee On Transportation And Infrastructure, 107" Cong. 1

Sess. (2001) 43-93, 95-99 (statements of John Chaconas, John Conner,

Charles Johnson, Donna Lovell, Robert Pierce, John Simpson, Doris

Wilson, and Richard Adam).

14

of the Government Reform Committee held a hearing on

agency implementation of the SWANCC decision. Witnesses

at that hearing provided extensive testimony regarding

inconsistent jurisdictional interpretations by agency

officials.'°

The Corps and EPA had originally taken steps to try

to address the confusion and unfairness occasioned by

inconsistent administration of the Act. Following this

Court’s decision in SWANCC, the Corps and EPA issued an

advanced notice of proposed rulemaking (“ANPRM”), to

initiate a rulemaking to clarify the scope of Clean Water Act

jurisdiction. 68 Fed. Reg. 1991 (2003). In the ANPRM and

an accompanying memorandum, the agencies noted the

widely divergent interpretations of the lower courts

regarding this Court’s decision in SWANNC - including the

conflicting decisions regarding jurisdiction over tributaries —

and sought comment on the appropriate definition of what

waters are “isolated” as well as other revisions to the Corps’

jurisdictional regulations. On December 16, 2003, however,

the Corps and EPA issued a press release announcing that

they did not intend to proceed with this reiemaking. Senior

officials from EPA held a press conference and were

subsequently quoted as indicating that the agencies are

content to let the courts address the jurisdictional confusion

on a case-by-case basis. See EPA, Appellate Decisions May

Return Water Act Battle to High Court, Inside EPA (Dec. 19,

2003) at 9. As a result, only the courts can provide any

'° Agency Implementation Of The SWANCC Decision: Hearing Before

The Subcommittee On Energy Policy, Natural Resources And

Regulatory Affairs Of The House Committee On Government Reform,

107" Cong., 2d Sess. (2002) 54-121 (statements of Virginia Albrecht,

Reed Hopper, Nancie Marzulla, and Raymond Smethurst).

15

clarity and consistency to the Corps’ regulatory definition of

waters of the United States.

IV. THE DECISION BELOW IS IN DIRECT

CONFLICT WITH DECISIONS OF THE FIFTH

CIRCUIT COURT OF APPEALS AND HAS

CREATED CONFUSION AND AMBIGUITY

OVER THE SCOPE’ OF _ FEDERAL

REGULATION

Unfortunately, the lower courts have not succeeded

in bringing clarity and certainty to these important

jurisdictional issues. For example, the U.S. Court of Appeals

for the Fifth Circuit has expressly rejected the expansive

interpretation of Clean Water Act jurisdiction of the court

below. See Needham, 2003 WL 22953383. In Needham, as

in this case, the United States urged the court to regulate all

tributaries of traditional navigable waters, and to include in

the definition of tributary all waters, excluding groundwater,

that have any hydrological connection with “navigable

water.” Jd. at *3. Unlike the Fourth Circuit, the Fifth Circuit

rejected that interpretation of the Act.

In our view, this definition is unsustainable

under SWANCC. The CWA and 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

16

body of water is actually navigable or

adjacent to an open body of navigable water.”

Rice, 250 F.3d at 269.

Id.

With inconsistent interpretations of the Clean Water

Act by different Circuit Courts of Appeals, landowners

throughout the United States do not know what activities

they may lawfully undertake on their property, Corps

officials are left to make arbitrary and _ inconsistent

determinations, and a landowner's only recourse is to the

courts and, ultimately, to this Court.

The current state of the law regarding federal

jurisdiction under the Clean Water Act is untenable not only

for the regulated community, but also for regulators and

reviewing courts. The degree of discretion granted by the

decision below to individual Corps officials increases the

complexity of a program that already is highly controversial

and makes the job of the regulators even more difficult to

carry out. The decision below will lead to more, not fewer,

inconsistent decisions and more, not fewer, legal challenges

that will further burden the judicial system. To avoid this

outcome and provide clarity to the scope of federal

jurisdiction under the Clean Water Act, this Court should

grant certiorari.

CONCLUSION

Arbitrary and inconsistent decision-making is not

acceptable under the American rule of law. Just as Congress

may not delegate standardless authority to executive branch

officials to regulate private property, federal agencies and

courts may not interpret grants of authority from Congress in

ways that lead to essentially standardless implementation of

statutes. Federal jurisdiction over private property is not

17

whatever a Corps official says it is. Yet that is how the

decision below interprets the Clean Water Act. This Court

should grant certiorari to overturn that interpretation and

articulate a clear standard for imposing federal jurisdiction

that is consistent with the language and structure of the Act.

DATED: January 30, 2004

Respectfully submitted,

Thomas C. Jackson

Counsel of Record

Kelley Drye & Warren LLP

1200 19th Street, N.W.

Suite 500

Washington, D.C. 20036

(202) 955-9662