Amicus Curiae Brief — Deaton v. United States

~ Supreme Court, U.S.

FILED

&) JAN 3.0 2004

OFFIC 3

No. 03-701 ICE OF THE CLERK .

In the

Supreme Court of the Anited States

JAMES S. DEATON, ET AL.

PETITIONERS,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF AMICI CURIAE OF THE BUILDING

INDUSTRY LEGAL DEFENSE FOUNDATION,

THE CALIFORNIA BUILDING INDUSTRY

ASSOCIATION, AND THE CITIES OF SIGNAL

HILL, DOWNEY, IRWINDALE, MONTEBELLO,

POMONA, SANTA FE SPRINGS AND VERNON IN

SUPPORT OF PETITIONERS JAMES S. DEATON,

ET AL.

PAUL N. SINGARELLA DAVID C. SMITH*

LATHAM & WATKINS BUILDING INDUSTRY LEGAL

650 Town Center Dr. DEFENSE FOUNDATION

20" Floor 1330 South Valley Vista Dr.

Costa Mesa, CA 92626-1925 Diamond Bar, CA 91765

(714) 540-1235 (909) 396-9993

*Counsel of Record

QUESTION PRESENTED

Whether a roadside ditch fronting a privately owned

piece of property is a “waters of the United States,” such

that the landowner violated the federal Clean Water Act by

not obtaining a permit from the U.S. Army Corps of

Engineers before placing dirt in a wetland adjacent to the

ditch.

TABLE OF CONTENTS

Page

QUESTION PREGEITED sicccciciecenaaainnnai i

TABLE OF COM TENTS. nncissmmmaeeee ii

TABLE OF AUTHORITIES... iv

INTEREST OF THE AMICI CURIAE e a1

I. SPECIFIC EXAMPLES OF REGULATORY

EXCESS Et CALSPOIIE ii aes 2

A. The Automatic Extrapolation Of

Beneficial Uses For Actual Open Waters

To Upstream Drainages, Regardless Of

TCE ACCU UGGS. cncecwsistnssuiitainitiainuiiaiiabbonaiaaniiies 2

B. Vertical-Walled Box Culvert Being

Regulated As Waters Of The United

States That Is Swimmmablle. ..........cccccscccssscccsesssoscccseees 5

C. Entire Public Storm Drain System

Declared “Waters of the United States.” ............... 6

D. Agencies Specify Upland Best Management

Practices (“BMPs”) And Invade The Land

Use Authorities Of Local Government. .................. 7

Il. THE ECONOMIC CONSEQUENCES OF

CURRENT REGULATIONS ARE

POTENTIALLY ONEROUS... oe

SUMMARY OF ARGUMENT... cscscscscscscscseeees ao

RGU TEEN E ceconinrscesnnsnninninainnsien soesuneseneenpianneninciniiievulinniiai 10

I. CWAJURISDICTION IS LIMITED TO

ACTUAL WATER BODIES AND THEIR

pS GF | 8g hf oy OF), | 9: 10

A. In1972, Congress Expanded The Waters

Subject To Federal Water Quality

Regulation To Include Open Bodies Of

Water Not Navigable In Fact. ..............ccsccsssseseeees 10

B. Congress’ Acquiescence In Agency

Jurisdiction Over Adjacent Wetlands

Defines The Limit Of Permitting Authority

Over Things That Are Not Water Bodies. ........... 13

II. CWA RESPECTS THE DISTINCTION

BETWEEN THE NATIONAL AND THE

LOCAL, A RESPECT THAT IS

EVISCERATED WHEN AGENCIES

REGULATE DRAINAGE RUTS AND CITY

STREETS AS IF THEY WERE FEDERAL

EE een 14

A. The CWA Provisions Reflect Congressional

Sensitivity To Potentially Intrusive

Regulation Under Federal Law. |

B. Legislative History Reflects Congress’ Intent

To Avert Federal Land Use Planning Under

C. CWA Respects The Principles of Federalism. .... 18

D. Federalism Protects The Rights of

Individuals From Tyranny, And Cannot Be

Dismissed Because State Government Invites

Sy III, sirntncsinesioiinstniicomninindeaiieendnaciomaienhice 19

ITT sdncschineieianiineneceiensensmenintsinaienseniedsteneinidamnaiains 20

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Economy Light & Power Co. v. United States,

Ee is Ce rieneiictennnisabeiimninnmiiiiiin 12

Hess v. Port Authority Trans-Hudson Corp.,

ae is es cenesvinirnniniinenlieiinnidndiaiinns 18

Namekagon Hydro Co. v. Federal Power

Commission,

SAG Fk FOS CIT CD. TG) seeencseserisninninerrnicnnreiorsvensnonesivie 12

Puente de Reynoso v. City of McAllen,

Dee Fe GB a Car, FD) weteiveseiesccresssivicevneentinsenccennirencwnss 12

Rochester Gas & Electric Corp. v. Federal Power

Commission,

BAA FBG G6 Gad Cir. TOG) vss scccerssssonssnsnsorenssnncoornnnsnssncones 12

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

i Fe Ce ivinennnesinntnsennintninssnnniciienssilniitiaidian 13, 14, 18

The Daniel Ball,

FE Re NE CED scivcievnsnncinaainsitcenaconiiininenialesitianiaasaealenain 10

United States v. Appalachian Eitectric Power Co.,

Bk Sa ee A vtintinacintaniniicinaeeiaindanne 11

United States v. Lopez,

8 0 ee Ce itncieitinentsnnnenininaiaiinicaiiiians 19

Page(s)

United States v. Morrison,

ee Ss ek He ertnisacscciomenianisdininaaencadaiaan 18, 19

United States v. Utah,

BOS ta Le) cits me

Wisconsin v. Federal Power Commission,

Seek FR Oe CO ls Sd eckienieisnsinessnctiitanineceaiaiennilincnini 12

Wisconsin Public Service Corp. v. Federal Power

Commission,

147 F.2d 748 (7th Cir. 1945).............. _— 12

STATUTES AND REGULATIONS

SB UDG. TERI wininsncieneeiemsidannaadamalaaiienn 14

OS UAE .. B RD ncetesinicndieniaen eon 15

SB U.S.C. § LBBB aD) ncerveecsevesetecccncesees 15

BO UBL. © LD scceciissscisccerticsonvenamnpnien 15

BB UTA. © IE) siccanncsinscnrisinichiiintincnnaitiiaiiiaannemnanan 15

BS UBC. © UR cscicccrcttrennnais - ae 15

BO UAC. & TRIED) cccecssssninsnsaviennctinceniineaiinemaanaa 16

BB UGC. § 1842 censcenesscnnscsnesenrerenesennse | 15

Be NI TEAL. § TBE ...nirnvesencnsesnenvenscnieninininsnnsieetiinmmansnniaeeiasiigiinn 15

Page(s)

Cal. Water Code § 13320(c), Stats. 1972, c. 1256, p.

2485, § 1, eff. Dec. 19, 1972 2

40 C.F.R. § 131.10 ‘ 1+ 6

LEGISLATIVE HISTORY

118 Cong. Roc. SRFEG GTS) csvcncvinicsininsnnientersenisicasestvaeiaas 11, 13

133 Cong. Rec. $1006 (daily ed. Jan. 21, 1987) .............sscsees 18

133 Cong. Rec. 991 (1987) - vesitevieenlnnnesaioneitpiuiinltatlae 16

138 Come. ee. 1076 CRRIC) sccsonsmesinevensenianmetvinmenamniindaiani 16

133 Cong. Rec. 1582 (1987)... sae - ‘ 16

IBS Cong. Ree. SOB (UBF) vvsccsscsnsstonsamntsiiisitiiuihitanansamaaminnian 20

AGENCY ORDERS

San Diego Regional Bd. Order No. 2001-01, at D-8

(Feb. 21, 2001), available at http://www.swrcb.ca.gov/

~rwqcb9/programs/stormwater/sd%20permit/Order%

20No0.%202001-01%20F inal%20with%

DORR ACTOR IE IT vii carcicincsvnieriinticsenmnnmnincnicidiniiiea 6, 7,8

Order WQO 2002-15, Cal. State Water Res. Control Bd., at

29-30 (Oct. 3, 2002), available at

http://www.swrcb.ca.gov/resdec/wqorders/

SOCKS WAGE, DEI se svvaivwesnenniansicennaciitnennimaaiiailideshiniaanaans 3

Page(s)

OTHER AUTHORITY

Bob Pool, Dispute Taints Sidewalk Cleanup;

Downtown: Officials Say Loft Developer Must

Stop Washing Garbage And Human Waste

From In Front Of His wiiaiion L.A. Times,

COE. Fi Tae sleesiisssensacosiibiiniiesilicnicenneiichaasiiesidindihininictniieeanitinieni 8

Peter R. Gordon, et al., An Economic Impact

Evaluation of Proposed Stormwater Treatment

for Los Angeles County, at 1 (Nov. 2002),

available at http://www.citiessavejobs.com/

dynamic/downloads/individual_download_file_

SON, INL 5 NIE wissineensiccstinlabinieeniaaeniariitaininemninnsianbiienenniniie 9

Susan C. Paulsen & E. John List, A Review of the Los

Angeles Basin Plan Administrative Record, at 56-

57 (Feb. 2003), available at

http://www.citiessavejobs.com/dynamic/downloads/

individual_download_file_link_english_181.pdf............... 5

Terry Rodgers, Water Board Wins Key Urban Run-

off Case, San Diego Union Tribune, Feb. 14,

2003, at B-1 annealed ~ ee

Water Quality Control Plan, Los Angeles Region, at

2-4 (June 13, 1994), available at

http://www.swrcb.ca.gov/rwqceb4/html/meetings/

tmdl/

Basin_plan/basin_plan_doc.htm........... 3, 6

INTEREST OF THE AMICI CURIAE

Amici Curiae the California cities of Downey, Irwindale,

Montebello, Pomona, Santa Fe Springs, Signal Hills, and

Vernon, the Building Industry Legal Defense Foundation

(“BILD”) and the California Building Industry Association

(“CBIA”) advocate in rulemaking, policy-making and law-

making venues to ensure that the federal Clean Water Act

(“CWA”) is interpreted and applied in a manner that

respects the outer bounds of authority vested by Congress

in the administering agencies.1 The Amici Curiae cities

have a combined population of over 300,000 people. Each

city is regulated under a CWA permit for urban runoff,

where jurisdictional issues as to the boundary between the

storm drain and waters of the United States are of

paramount importance. The membership of BILD and

CBIA includes almost all the major homebuilders in

America, companies that build homes on raw land

throughout the country, in so doing frequently encountering

agency interpretation of the jurisdictional reach of CWA.

Most large homebuilding projects in America are subject to

CWA permits for runoff to waters of the United States. The

location of federal waters is of critical importance to CWA

permit holders like the Amici Curiae and their members

because their compliance obligations are in specific

reference to them.

The agencies progressively have attempted to expand

the reach of federal waters, to the point that “waters of the

United States” can be found in some jurisdictions to include,

by virtue of agency fiat, ephemeral drainages, drainage ruts,

1 Amici Curiae have received the parties’ written consent to file

this brief in support of petitioners. Letters of consent have been filed

with the Court. Counsel for Amicus Curiae have authored this brief,

which was not written in whole or in part by counsel for a party. No one

other than certain Amici Curiae made a monetary contribution to the

preparation of this brief.

2

storm drain pipes, and even the curb, street and gutter.

This upland extension of claimed federal jurisdiction over

waters has eviscerated the distinction between the national

interest, on the one hand, and the local interest, on the

other, subjecting municipalities and homebuilders to federal

land use planning—a result expressly rejected by Congress,

and one that contravenes principles of federalism. The

experience in this regard has been acute in California.

I. SPECIFIC EXAMPLES OF REGULATORY

EXCESS IN CALIFORNIA.

U.S. EPA has “delegated” authority under CWA to the

State of California, but retains its own authority to act here

and often does. The State of California amended its Water

Code in 1972 in part to “avoid direct regulation by the

federal government” under CWA2 However, that

legislative purpose has never been fully realized. As the

Amici Curiae often hear from state water quality

regulators, their “hands are tied” by U.S. EPA directives.

The following examples illustrate how water quality

regulators in California improperly asserting jurisdiction

under CWA, resulting in invasive regulation that is doing

little to improve the water quality of truly federal waters.

A. The Automatic Extrapolation Of Beneficial Uses

For Actual Open Waters To Upstream

Drainages, Regardless Of Their Actual Uses.

The upland extension of waters of the United States

creates bizarre results when coupled with the so-called

“Tributary Rule,” contained in many of the U.S. EPA-

approved water quality control plans for the State of

California. Under the Tributary Rule, the agencies

2 Cal. Water Code § 13320(c), Stats. 1972, c. 1256, p. 2485, § 1, eff.

Dec. 19, 1972.

3 California is split into nine regions, each with a Regional Water

Quality Control Board, and each with a U.S. EPA-approved water quality

3

improperly assume that storm drains and other upstream

drainage features automatically have the same water

quality standards as the receiving waters into which they

drain. For example, the Tributary Rule in the L.A. Basin

Plan states as follows:

Those waters not specifically listed . . . are designated

with the same beneficial uses as the streams, lakes, or

reservoirs to which they are tributary. This is

commonly referred to as the “tributary rule.”4

The Tributary Rule is being used to regulate

municipalities and homebuilders, as if they were discharging

to waters that constitute a public water supply, or a public

beach, or a habitat for fisheries, when the reality is to the

contrary.

For example, on the basis of the Tributary Rule,

Vacaville, a small city in the Central Valley of California, is

being held to a CWA permit for its wastewater plant

predicated on the assumption that the beneficial uses for

public water supplies and cold water fisheries are relevant

to the ditch to which it discharges (a hydrologically modified

“receiving water” dominated by wastewater effluent and

agricultural tailwater) when, in fact, the Regional Board

concluded that such uses did not exist. While the

wastewater plant is located many miles upstream of the

Sacramento-San Joaquin River Delta, on the basis of the

Tributary Rule, the agency applied the Delta’s beneficial

uses to the plant’s discharges. 5

control plan, or Basin Plan, containing local water quality standards for

that region.

4 Water Quality Control Plan, Los Angeles Region, at 2-4 (June 13,

1994), available at http://www.swrcb.ca.gov/rwqcb4/html/meetings/tmdl/

Basin_plan/basin_plan_doc.html (“L.A. Basin Plan”).

5 Order WQO 2002-15, Cal. State Water Res. Control Bd., at 29-30

(Oct. 3, 2002), available at http://www.swrcb.ca.gov/resdec/wqorders/

2002/wqolog.html.

4

The Regional Board had tried vehemently to modify the

Tributary Rule in an attempt to “remove a known falsehood

from the Basin Plan.”© As noted by the Regional Board,

“fin the real world of the Central Valley’s watersheds,

exceptions to the tributary footnote [7.e., rule] abound,” the

“fundamental premise” of which is “false.”’ When U.S.

EPA disapproved of the Regional Board’s attempt to modify

the Tributary Rule,8 the Regional Board explained that the

Tributary Rule can lead to “inconceivable” results that “just

do not make sense,”? commenting: “USEPA staff have

invoked the tributary footnote as the appropriate principle

governing the selection of beneficial uses, even in the face of

conflicting facts. ... USEPA says there is no need for fact

findings, the tributary footnote tells us all we need to

know.”10 Similarly, in 2001, another Regional Board

(based on the Tributary Rule) applied designated beneficial

uses for Newport Bay in Orange County to a vertical-

walled, fenced-off concrete box culvert draining a downtown

area. Thus, found the Regional Board, drinking water and

swimming standards must be met in the culvert. Since the

standards were not met within the culvert, the Regional

Board recommended that the culvert be listed as not

meeting water quality standards under CWA's Section

303(d) program.

6 Staff Report Re: Amendment of the Water Quality Control Plan

for Sacramento River Basin, Sacramento-San Joaquin Delta Basin, and

the San Joaquin River Basin, Central Valley Regional Board (Oct. 11,

1994) (“Staff Report”).

7 Staff Report.

8 Letter from Alexis Strauss to Edward Anton re: Disapproval of

Certain Portions of Central Valley Basin Plan (May 26, 2000) (letters

available upon request of the Court).

9 Letter from Jerrold Burns to Kathy Goforth re: Response to US

EPA Actions on Central Valley Basin Plan Amendments (Aug. 31, 2000).

10 See Staff Report.

5

Amici Curiae supported a study by Drs. Susan Paulsen

and John List of water quality concerns in the Los Angeles

region, including the Tributary Rule. Drs. Paulsen and List,

nationally recognized water quality experts, concluded in

part:

The application of water quality objectives to all

tributary streams via the tributary rule . . . could

require the collection and treatment of storm flows,

urban runoff, and other nonpoint source sources on a

very small, localized scale. This would result in

impractical, costly and inefficient methods for

improving water quality in the larger receiving water

bodies that the Clean Water Act .. . primarily

intended to protect. The tributary rule should be

revised to reasonably protect designated beneficial

uses without extending, at enormous potential

expense, regulatory requirements to each and every

upstream drainage facility. ... 11

B. Vertical-Walled Box Culvert Being Regulated

As Waters Of The United States That Are

Swimmable.

A vertical-walled, concrete-lined box culvert that runs

from downtown Los Angeles to Culver City, approximately

three miles, is designated a “waters of the United States” by

the L.A. Regional Board. The culvert was assigned a body-

contact recreational use called “REC-1” which includes

swimming; REC-1 is defined as follows:

Uses of water for recreational activities involving

body contact with water, where ingestion of water is

reasonably possible. These uses include, but are not

11 Susan C. Paulsen & E. John List, A Review of the Los Angeles

Basin Plan Administrative Record, at 56-57 (Feb. 2003), available at

http://www.citiessavejobs.com/dynamic/downloads/individual_download

_file_link_english_181.pdf.

6

limited to, swimming, wading, waterskiing, skin and

scuba diving, surfing, white water activities, fishing,

or use of natural hot springs. 12

Once a culvert is classified as a “waters of the United

States,” the agencies will not relent absent a “structured

scientific process” called a Use Attainability Analysis

(“UAA”), 13 a process that has had little value in practice.

For example, on June 5, 2008, the L.A. Regional Board

voted to maintain REC-1 as a designated beneficial use for

the culvert. Regional Board staff had conducted a UAA and

recommended removal of the swimming designation because

there is no access to the culvert and because of the extreme

danger in entering the culvert when it contains flood water.

The Board rejected the staffs common sense and

precautionary recommendation and upheld the swimming

designation.

C. Entire Public Storm Drain System Declared

“Waters of the United States.”

The San Diego Regional Board, ostensibly acting under

CWA, issued a permit in 2001 for the public storm drains in

San Diego County. The permit defined “waters of the

United States” such that: “a Municipal Separate Storm

Sewer System (MS4) is always considered a Waters of the

United States.”14 The permit defined MS4s to include all

“roads with drainage systems, municipal streets, catch

basins, curbs, gutters, ditches, natural drainage features or

channels, modified natural channels, man-made channels, or

12 1A. Basin Plan at 2-2. See supra n.4.

13 40 C.F.R. § 131.10.

14 San Diego Regional Bd. Order No. 2001-01, at D-8 (Feb. 21, 2001),

available at http://)www.swrcb.ca.gov/~rwqcb9/programs/stormwater/

sd%20permit/Order%20No.%202001-01%20F inalZ%20with%

20attachmentss.pdf.

. :

storm drains.”15 Thus, under this agency’s view, the entire

municipal storm drain starting at the curb and gutter is

“waters of the United States.”16

Under this approach, all “point sources” that “discharge”

to our urban and suburban streets arguably require CWA

permits. Are driveways and sidewalks “point sources”

_ bordering “waters of the United States”? To say that the

agency’s definition brings CWA to the front door is not

hyperbole.

Environmental groups are heralding the San Diego

permit as a precedent for the nation to follow. An

environmental group called the San Diego BayKeeper was

paraphrased in the San Diego Tribune as proclaiming that a

trial court decision upholding the permit’s definition of

“waters of the United States” “clears the way for San

Diego’s storm-water permit to become a national model.”17

D. Agencies Specify Upland Best Management

Practices (“BMPs”) And Invade The Land Use

Authorities Of Local Government.

Another consequence of the inland extension of CWA

jurisdiction is that it is leading water quality regulators to

micro-manage local government practices to protect

downstream receiving waters. For example, the San Diego

Regional Board directs BMPs to be placed as close as

possible to where the raindrop first hits the ground: “Use

small collection strategies located at, or as close as possible

to, the source (i.e., the point where water initially meets the

ground)... 718

15 Order No. 2001-01, at D-4.

16 Order No. 2001-01, at D-4.

17 Terry Rodgers, Water Board Wins Key Urban Run-off Case, San

Diego Union Tribune, Feb. 14, 2003, at B-1.

18 See Order No. 2001-01 at 14.

8

The San Diego Regional Board’s permit requires BMPs

for a plethora of urban and suburban land uses, requiring

mandatory BMPs for residential activities such as home

gardening, automobile washing and parking.19 The San

Diego permit requires cities to prohibit their residents from

common activities, including hosing off driveways and

patios, and washing their cars unless you can catch the rinse

water before it enters the catch basin.29

These intrusions are affecting quality of life. For

example, inspectors enforcing a similar CWA permit for the

L.A. region ordered a downtown L.A. landlord who has

helped to rehabilitate an area near skid row to stop washing

the sidewalk in front of his hotel.2! According to the L.A.

Times, the sidewalk cleaner was admonished to, “[dJrop that

hose.” The owner said he would “cease and desist from

maintaining my properties as any human being would have a

right to expect,” if the city agreed to clean the sidewalks of

the previous night’s accumulation of, “urine, human waste,

vomit, alcohol, cardboard, clothing, hypodermic needles,

crack pipes and bullet casings.” Recognizing the landlord’s

“Catch-22 situation,” city officials stressed that their hands

were tied by the CWA.

Il. THE ECONOMIC CONSEQUENCES ' OF

CURRENT REGULATIONS ARE

POTENTIALLY ONEROUS.

A study carried out by engineering experts at the

University of Southern California School of Engineering

analyzed the stormwater regulations in the Los Angeles

area, taking them at “face value,” and estimating the

19 See Order No. 2001-01 at 33.

20 San Order No. 2001-01 §§ D.1.b.5, D.1.b.8.

21 See Bob Pool, Dispute Taints Sidewalk Cleanup; Downtown:

Officials Say Loft Developer Must Stop Washing Garbage And Human

Waste From In Front Of His Building, L.A. Times, Oct. 8, 2002.

9

economic consequences of compliance. The following is from

the executive summary of the study’s findings:

This study . . . of the potential costs required to meet

new. and emerging stormwater regulations in the Los

Angeles area... confirms that advanced treatment of

storm flows will likely be required .... Such

treatment will be extremely costly and will generate

significantly negative economic consequences for our

region. The principal study case, which contemplates

65 treatment plants to accommodate regional

stormwater requirements, shows that:

e The capital costs required to build new collection

and treatment facilities range from $43.7 billion to

treat flows from about 70% of the historic[al]

average annual storm events to $283.9 billion for

97% of the expected storm events.

e The 20 year present value (cost) of the net

economic impacts to each L.A. County household

for these required stormwater facilities ranges

from about $6,670 to treat the smallest 70% of

storms to $41,760 to treat 97% of the expected

annual storm events.22

These projected costs underscore the potential impact to

Amici Curiae, and their residents and members, and the

need for the Court to halt the extra-jurisdictional action of

various agencies under color of CWA.

SUMMARY OF ARGUMENT

CWA defines federal waters in a geographical sense,

extending that concept broadly to all truly open bodies of

22 Peter R. Gordon, et al., An Economic Impact Evaluation of

Proposed Stormwater Treatment for Los Angeles County, at 1 (Nov.

2002), available at http://www.citiessavejobs.com/dynamic/downloads/

individual_download_file_link_english_i75.pdf.

10

water that may be regulated under the Commerce Clause,

and their adjacent wetlands. Although broad, such

jurisdiction does not extend to things without common

hydrologic features, such as roadside ditches, drainage ruts,

storm drain pipes and culverts, city streets, or the curb and

gutter. To hold otherwise would frustrate clear

congressional intent and violate principles of federalism

woven into CWA.

ARGUMENT

In the case at hand, requiring the Deatons to obtain a

federal permit to develop their land-locked property

constitutes ultra vires agency action, as ‘t improperly

attempts to extend CWA _ jurisdiction beyond

congressionally imposed limits and violates the federal-state

balance that Congress carefully wove into CWA.

I. CWA JURISDICTION IS LIMITED TO ACTUAL

WATER BODIES AND THEIR ADJACENT

WETLANDS.

A. In 1972, Congress Expanded The Waters

Subject To Federal Water Quality Regulation

To Include Open Bodies Of Water Not

Navigable In Fact.

In 1972, Congress clearly extended agency jurisdiction

under federal water quality law beyond waters that were

navigable in fact, rejecting the limited view of navigability

of the Daniel Ball case.23 Just as clearly, Congress in 1972

did not extend unbridled discretion to the agencies to define

for themselves just how far beyond navigable-in-fact waters

the agencies may extend CWA permit programs. Rather,

Congress defined jurisdictional waters with reference to

precedent involving various rivers across the country.

23 The Daniel Ball, 77 U.S. 557, 563 (1870) (“Those rivers must be

regarded as public navigable rivers in law which are navigable in fact.”).

Fad Meads es The) 2s

ETT WA tn an IN BE Rant EEN Ch REET AL ea a dP

skin setae Gust

11

Representative Dingell, one of the active supporters of

the 1972 CWA, stated in pertinent part:

[T]he conference bill defines the term “navigable

waters” broadly for water quality purposes. It means

all ‘the waters of the United States’ in a geographical

sense. It does not mean “navigable waters of the

United States” in the technical sense as we

sometimes see in some laws.

The new and broader definition is in line with more

recent judicial opinions which have substantially

expanded that limited view of navigability—derived

from the Daniel Ball case (77 U.S. 557, 563)—to

include waterways which would be “susceptible of

being used *** with reasonable improvement,” as well

as those waterways which include sections presently

obstructed by falls, rapids, sand bars, currents,

floating debris, et cetera... 24

None of the “more recent judicial opinions” with respect

to which the 1972 amendments were “in line” extended the

concept of navigable waters to things like roadside ditches,

or anything other than a truly open water body.

Representative Dingell specifically cited to a series of cases

that found navigable in law various river reaches including:

portions of the Colorado, Green and Grand Rivers in the

western United States;20 an 111-mile stretch of the New

River running from Virginia into West Virginia, throughout

which there was an “abundance of water;”26 the Wisconsin

River despite channel sections that were “broken and

24 Remarks of Rep. Dingell, 118 Cong. Rec. 38756 (Oct. 4, 1972).

25 United States v. Utah, 283 U.S. 64 (1931).

26 United States v. Appalachian Elec. Power Co., 311 US. 377, 410

(1940).

12

divided, offering almost insurmountable obstacles;”2" the

Snake Tail Rapids on the East Fork of the Chippewa River

in Wisconsin where fast water and protruding rocks made

passage “very difficult;”28 the Namekagon River in

Wisconsin, one of the best freshwater bass angling streams

in the country;29 the Rio Grande River on the basis of the

potential to restore actual navigable capacity;30 the

Genesee River above Rochester, New York, but not

necessarily a turbulent stretch of river 65 miles from the

river’s mouth;2! and the Desplaines River in Illinois despite

the fact that it “fell into disuse .. . for a hundred years. ”32

In some of the cases to which the legislative history

refers, the courts struggled over determining whether

reaches of certain rivers were not federal waters because of

navigational impediments. Thus, in cases decided before

1972 a river for purposes of federal jurisdiction could be

broken up into non-contiguous segments—a_ rather

arbitrary means for the federal government to establish

domain. It was this “technical sense” of navigability which

allowed rivers to be piecemealed into navigable and non-

navigable segments, based on various impediments to actual

navigation, that Congress rejected in 1972. The

27 Wis. Pub. Serv. Corp. v. Fed. Power Comm’n, 147 F.2d 748, 745

(7th Cir. 1945).

28 Wisconsin v. Fed. Power Comm’n, 214 F.2d 334, 335 (7th Cir.

1954).

29 Namekagon Hydro Co. v. Fed. Power Comm’n, 216 F.2d 509, 512

(7th Cir. 1954).

30 Puente de Reynoso v. City of McAllen, 357 F.2d 48, 50-51 (5th Cir.

1966).

31 Rochester Gas & Elec. Corp. v. Fed. Power Comm’n, 344 F.2d 594,

597, 599 (2d Cir. 1965).

32 Economy Light & Power Co. v. United States, 256 U.S. 118, 123-24

(1921).

13

“geographical sense” adopted by Congress in 1972 swept

rivers from start. to finish into the ambit of jurisdiction

thereby, “encompass[ing] all water bodies, including main

streams and their tributaries, for water quality purposes.”93

Nowhere in CWA itself or the 1972 legislative history

does Congress ascribe federal water status to things other

than truly open bodies of water—the kinds of waters with

banks, shores, and other hydrologic attributes. The

extension of federal water status to roadside ditches,

drainage ruts, storm drains, curbs and gutters is the

creature of unlawful agency action.

B. Congress’ Acquiescence In Agency Jurisdiction

Over Adjacent Wetlands Defines The Limit Of

Permitting Authority Over Things That Are Not

Water Bodies.

In 2001 the Court addressed various CWA legislative

and rulemaking activity from enactment in 1972 through

1977.34 Considering legislative proposals to change the

definition of “navigable waters” so as to express it in specific

terms, the Court commented, “debate on the [legislative]

proposals to narrow the definition of navigable waters

centered largely on the issue of wetlands preservation.”8°

The Court concluded: “Beyond Congress’ desire to regulate

wetlands adjacent to ‘navigable waters,’ respondents point

us to no persuasive evidence that the House bill was

proposed in response to the Corps’ claim of jurisdiction over

33 Remarks of Rep. Dingell, 118 Cong. Rec. 33756 (1972). Amici

Curiae are not implying that all water bodies are jurisdictional. Rather,

the class of waters regulated as “waters of the United States” under the

CWA is limited to actual water bodies and water courses, that also satisfy

appropriate elements of the Commerce Clause.

34 Solid Waste Agency of N. Cook County v. United States Army

Corps of Eng’rs, 531 U.S. 159, 174 (2001) (“SWANCC”).

35 SWANCC, 581 U.S. at 170 (quoting United States v. Riverside

Bayview Homes, 474 U.S. 121, 136 (1985)). :

14

nonnavigable, isolated, intrastate waters or that its failure

indicated congressional acquiescence to such jurisdiction.”36

Thus, the Court’s holding in Riverside Bayview Homes

that jurisdiction under CWA extends to adjacent wetlands

clearly is not the “open door” through which jurisdiction

over things other than such wetlands can pass.

Il. CWA RESPECTS THE DISTINCTION

BETWEEN THE NATIONAL AND THE LOCAL,

A RESPECT THAT IS EVISCERATED WHEN

AGENCIES REGULATE DRAINAGE RUTS AND

CITY STREETS AS IF THEY WERE FEDERAL

WATERS.

A. The CWA Provisions Reflect Congressional

Sensitivity To Potentially Intrusive Regulation

Under Federal Law.

The goals and policies of CWA contain a subsection

entitled, “Congressional recognition, preservation, and

protection of primary responsibilities and rights of States,”

which states in pertinent part:

It is the policy of the Congress 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... .3/

CWA is consistent with Congress’ stated desire to

respect the “primary responsibilities and rights” of state

government over land use and water resource matters.

Congress took a programmatic approach to the potential

water quality impacts of land use and water supply

development and management—rather than subjecting

36 SWANCC, 531 U.S. at 170-71.

37 33 U.S.C. § 1251(b).

15

them to command-and-control permitting under CWA

Sections 402 (permits for discharges of pollutants) and 404

(permits for dredge and fill), 33 U.S.C. 8§ 1342, 1344.

For example, CWA contains a program through which

states develop “areawide waste treatment management

plans” to address “substantial water quality control

problems” related to “urban-industrial concentrations or

other factors.”88 The purpose of these so-called “208 Plans”

is to address various water quality issues outside of the

federal permitting schemes of Sections 402 and 404. 208

Plans encompass not just urban and industrial sources, but

also agricultural, silvicultural, mining, construction, and

other potential areawide, nonpoint sources. 39

CWA Section 208(f) provided grants to the states to

develop and operate the 208 Plans.49 These grants are

consistent with the congressional purpose of “encouraging

and facilitating the development and implementation” of 208

Plans#1—as opposed to forcing such local pollution through

the eye of a federal regulatory needle.

In 1987, Congress added Section 319, “Nonpoint source

management programs,” in so doing affirming its policy

choice of respecting state authority by dealing with

pollution upstream of federal waters programmatically—

rather than through command-and-control permitting.42

Although nonpoint source runoff (“NPS”) is not defined in

CWA, it is discussed in the legislative history, as including

runoff from diffuse sources such as urban areas and

38 33 U.S.C. § 1288(a)(2), CWA § 208(a)(2).

39 33 U.S.C. § 1288(b).

40 33 U.S.C. § 1288(f).

41 33 U.S.C. § 1288(a).

42 33 U.S.C. § 1829.

16

farmland,43 such as city streets, parking lots, lawns,

residential areas and construction sites.

NPS runoff is not regulated via federal permits. Rather,

Section 319(a)(1) states in pertinent part:

the Governor of each State shall ... prepare ...a

report which . . . (C) describes the process . . . for

identifying best management practices [BMPs] and

measures to control each category and subcategory of

nonpoint sources and, where appropriate, particular

nonpoint sources identified under subparagraph (B)

and to reduce, to the maximum extent practicable, the

level of pollution resulting from such category,

subcategory, or source .... 45

The Section 319 BMPs “are intended to be the primary

water quality improvement and water quality compliance

mechanism” for NPS.46 Thus, the implementation of

practicable BMPs is the; cy approach of Section 319 to

reduce NPS pollution. ‘inis approach is fundamentally

different from the Section 402 and 404 permitting schemes,

and reflects congressional intent to distinguish local NPS

issues from the permitting programs for federal waters.

CWA’s extensive planning provisions for potential

pollution from various kinds of land use become superfluous

if federal waters are defined so broadly that they encompass

the erosion rut, the curb, the street and gutter. Under such

43 See, e.g., Remarks of Sen. Chafee, 133 Cong. Rec. 1582 (1987)

(“Nonpoint pollution is pollution that does not come out of a specific pipe.

It is pollution that comes from runoff—from farmlands, for example, or

from parking lots in cities.”).

44 See, e.g., Remarks of Sen. Durenberger, 133 Cong. Rec. 1276 (1987)

(NPS includes sources such as “residential areas, streets, roads,

highways, other developed areas.”).

45 33 U.S.C. § 1329(a)(1).

46 Remarks of Sen. Strangeland, 133 Cong. Rec. 991 (1987).

17

a definitional scheme, these land uses would discharge

routinely into “federal” waters, triggering the permitting

provisions of Sections 402 and 404. Clearly, this result was

not contemplated by Congress, which limited the extent of

federal waters so that there would be a sphere within which

local government could operate to address water quality

through non-regulatory programs.

B. Legislative History Reflects Congress’ Intent

To Avert Federal Land Use Planning Under

CWA.

The legislative history reflects controversy regarding

Section 319, the nonpoint source (“NPS”) provision, as

Republicans were concerned that it constituted federal land

use planning, extending the reach of CWA to purely local

matters. Senator Mitchell responded to these concerns in no

uncertain terms:

In his statement the other day, the distinguished

_ minority leader referred to the nonpoint provision of

this bill as ‘Federal land use planning.’

This is a serious charge. It is an erroneous charge.

This bill does not—I repeat does not—provide for

Federal intervention in State and local land use

planning decisions.

The nonpoint provision gives States the lead role in

addressing nonpoint pollution problems. The Federal

Government plays a limited, support role.

Further, the bill does not direct States to establish

regulatory programs for control of nonpoint sources

of pollution. I repeat that the bill does not direct

States to establish regulatory programs for control on

nonpoint sources of pollution. It specifically refers to

a wide range of nonregulatory programs such as

education, training, technical assistance, and

18

demonstration, while not preventing a State from

adopting a regulatory program where needed.47?

Senator Mitchell concluded emphatically:

So it is absolutely false, untrue and misleading for

anyone to say that this is Federal land use

planning.48

This legislative history reflects Congress’ recognition

that the 1972 CWA did not federalize land use planning, as

well as Congress’ intent that the 1987 amendments did not

move federal water quality regulation in that direction.

Congress in 1987 evinced its intent to abide by the original

goals and policies of the 1972 CWA, to respect the “primary

responsibilities” of the states with respect to land use

planning.

C. CWA Respects The Principles of Federalism.

The federal-state balance of CWA reflects congressional

design based on principles of federalism. As stated by the

Court in the Morrison decision, “[t]he Constitution requires

a distinction between what is truly national and what is

truly local.”49 As recognized by the Court in the SWANCC

and Hess decisions, the “regulation of land use” is a

“function traditionally performed by local governments.”>0

Land use authority is an aspect of the “generalized police

power,” reserved to the states under the Constitution. As

the Court stated in Morrison:

[T]he principle that ‘(t]he Constitution created a

Federal Government of limited powers, while

47 Remarks of Sen. Mitchell, 133 Cong. Rec. $1006 (daily ed. Jan. 21,

1987).

48 Remarks of Sen. Mitchell, 133 Cong. Rec. S1006.

49 United States v. Morrison, 529 U.S. 598, 617-18 (2000).

50 Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44 (1994)

(quoted favorably in SWANCC, 531 U.S. at 174).

19

reserving a generalized police power to the States, is

deeply ingrained in our constitutional history.>!

By limiting the reach of federal waters and crafting

programs to address the impacts of local land uses on water

quality, Congress reserved to the states a role in water

quality regulation, in accordance with principles of

federalism.

D. Federalism Protects The Rights of Individuals

From Tyranny, And Cannot Be Dismissed

Because State Government Invites Federal

Regulation.

The Court may hear from state water quality regulators

that they would acquiesce in a construction of jurisdictional

waters even broader than the one conceded here. The

reason for this is clear: in many states, U.S. EPA has

delegated the administration of CWA to state regulators.

The power of state regulators to which U.S. EPA has

extended delegation is promoted by an expansive

interpretation of “waters of the United States.”

However much state water quality regulators may want

to feed at the trough of federal power, the Constitution

should not, and indeed cannot, yield to such assuaging. As

the Court in Lopez observed, “State sovereignty is not just

an end in itself... .”52 The Court explained:

[T]he Constitution divides authority between federal

and state governments for the protection of

individuals. . . . [F]Jederalism secures to citizens the

liberties that derive from the diffusion of sovereign

power.>3

51 Morrison, 529 U.S. at 619 (citations omitted).

52 United States v. Lopez, 514 U.S. 549, 576 (1995).

53 Lopez, 514 U.S. at 576 (quoting Coleman v. Thompson, 501 U.S.

722, 759 (1991) (Blackmun, J., dissenting)).

20

The federal-state balance of CWA is there for the

protection of people, cities and their citizens who have a

reasonable expectation, indeed a constitutionally protected

one, to have a local sphere free of federal coercion, and

landowners who should not be subject to federal intrusion

and potential liability when building a home in an upland

area. President Reagan understood the importance of this

balance when he expressed concern that CWA in 1987 was

at risk of becoming overly intrusive. The President stated

in pertinent part:

This new program threatens to become the ultimate

whip hand for Federal regulators. ... [U.S. EPA] will

be able to become a major force in local zoning

decisions that will determine whether families can do

such basic things as build a new home.

Let me repeat—controlling nonpoint source pollution

has the potential to touch, in the most intimate ways,

practically all of us as citizens, whether farmers,

business people, or homeowners.°4

In response to President Reagan, Senator Mitchell

offered assurances>> that CWA did not constitute federal

land use planning. The Deatons and Amici Curiae are

asking the Court to ensure that the agencies that implement

CWA operate within these carefully circumscribed limits set

by Congress.

CONCLUSION

In conclusion, Amici Curiae respectfully request the

Court to accept certiorari of the Deaton decision, in order to

specify the limits of CWA jurisdiction and elucidate how

principles of federalism animate this important issue.

54 133 Cong. Rec. 2392 (1987).

55 See supra nn.47, 48.

PAUL N. SINGARELLA

LATHAM & WATKINS

650 Town Center Drive

20" Floor

Costa Mesa, CA 92626-

1925

(714) 540-1235

Respectfully submitted,

DAVID C. SMITH*

BUILDING INDUSTRY LEGAL

DEFENSE FOUNDATION

1330 South Valley Vista Drive

Diamond Bar, CA 91765

(909) 396-9993

*Counsel of Record for the Amici

Curiae