# Amicus Curiae Brief — Deaton v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2403%3A08

## Record

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

## Text

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
BR 6 PSN AIT sss cacsssssscsssvvsonsusnaggrisssease
TET BEIGE GW oss sosecsoccssscstssdesssascnccsecsnsnsvveon 6
RE TSI osc cssescsisnseversvsinscesecstavessopvsvsosonvsesin 5
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
ME II asics ccssvnsuensosvnsscavorsovsecsevesinscon 3
TO IID css ccsescssvswipssnvavonovercrsevectovnscanane 3
BR I css cccssessccshnssonvvcsnrsoernconseesoen 9
a | ae 9

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
LCT oe Ey. 2. | ; een 4
$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
PLE oe he. een ne 4
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2403%3A08. Public record. Not legal advice.