Amicus Curiae Brief — Deaton v. United States

, [Supreme Coun TS —

f ) “hse

No. 03-701 JAN 30 2004 |

In The

Supreme Court of the Gnited States

.

JAMES S. and REBECCA DEATON,

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 AMICUS CURIAE OF THE NATIONAL

MINING ASSOCIATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

¢

HAROLD P. QUINN, JR. Lisa A. KIRSCHNER*

NATIONAL MINING JIM BUTLER

ASSOCIATION PARSONS BEHLE & LATIMER

101 Constitution Avenue, NW One Utah Center

Suite 500 East 201 South Main Street,

Washington, DC 20001-2133 Suite 1800

(202) 463-3240 Salt Lake City, UT

84145-0898

(801) 532-1234

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Are a roadside ditch and the wetland next to it “navi-

gable waters” under the Clean Water Act?

il

TABLE OF CONTENTS

Page

GUBSTION PU ao vivciienisiievnsccnsnncesnrccnaceenseissoninn i

TABLE OF AURA Ee sicttinimnmnntionntannne oil

INTERESTS OF AMICUS CURIAE......... enone 1

OVERVIEW OF PERMITTING OBLIGATIONS AT

DET TIOG, CPE Pe ce ticentesitriuliintataiiaieninintniornmnttnne

REASONS FOR GRANTING THE PETITION............

§

II.

IIT.

The Court Should Grant The Writ Of Certio-

rari To Resolve The Irreconcilable Conflict Be-

tween Decisions In The Fourth, Sixth And

Ninth Circuits And Decisions In The Fifth Cir-

The Post-SWANCC Confusion Compromises

The Integrity Of The Regulatory Process .........

The Court’s Guidance Is Necessary Because

The Executive Branch Has Abdicated Its Pre-

rogative To Provide National Policy On Clean

Waker Act Car vinicccccsievsvtienncttainioves

CONN insienessiinissbcstnientvaiciuemaaanee

iil

TABLE OF AUTHORITIES

CASES

Headwaters, Inc. v. Talent Irrigation District, 243

I I i sassipencieee mnsnicsbnhsdivanesenbrebcees 7

National Assoc. of Home Builders v. U.S. Army

Corps of Eng’rs, __ F. Supp.2d __, 2003 WL

23112466 (D.D.C. November 24, 20038)................ccceeeeeeee 4

Rice v. Harken Exploration Co., 250 F.3d 264 (5th

td aia cl dee ndcoidicigsdsindnbecaatcuaiatianininis 6, 7

Rueth v. U.S. Environmental Protection Agency, 13

a anise eb. tnndarincniiaenibeseonscbayerwohetrnie 5

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Eng’rs, 531 U.S. 159 (2001)........... passim

Southern Pines Assoc. v. U.S., 912 F.2d 713 (4th

a Alas nhac sphossaseaneineibianveaulinntnasie 5

U.S. v. Deaton, 332 F.3d 698 (4th Cir. 2003) petition

for cert. filed (U.S. November 10, 2003) (No. 03-

U.S. v. Rapanos, 339 F.3d 447 (6th Cir. 2003)

petition for cert. filed (U.S. December 22, 2003)

laa cll alas sthl dil hoee 7

U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121

REA Ss Eee eee ene 6, 7

U.S. v. James Hamilton Needham, et al.,__ F.3d __,

2003 WL 22953383 (5th Cir. December 16, 2003)........... 7,8

STATUTES

Rte Pom RS OF Be: | ee 4

33 U.S.C. §§ 1251 et seg. (1972) (amended 1977 and

a cael ceed 1

iv

TABLE OF AUTHORITIES — Continued

Page

33 U.S.C. § 1862(7) (1972) (amended 1977 and

I secestiincheeentcecseanr clon pad essa earns 6

43 U.S.C. §§ 1701 et seg. (1976) (amended 1988)............... 3

REGULATIONS

BS CPR. & SA TaN) CR) ocescsscvvescccsnsncsncvinsnvnccessemvssieves 9

ek 4 RS REY Rn Er nee ore 10

Br oe Cais oitivteeictcianeans 10, 11

Be Ce ee iit iivsthnciccnirineemnmetnenaes 11

BO Fs Os te viiencckiewvitrircs trices 10

ee Fe ee FE hae haiieisiesntcisctdeatavoinaene 10

eee 0 ee iin cicierinttesintndeeccsiebeneeieties 5, 12

OTHER AUTHORITIES

Advance Notice of Proposed Rulemaking on the

Clean Water Act Regulatory Definition of “Wa-

ters of the United States,” 68 Fed. Reg. 1991

IE Bree Sisco ta encasement 14

Anthony M. Evans, Introduction to Mineral Explo-

IE Cee sp cisnistcectbensssenursnisecctaaieueeuid 2

David L. Sunding & David Zilberman, Non-Federal

and Non-Regulatory Approaches to Wetlands Con-

servation: A Post SWANCC Exploration of Conser-

vation Alternatives (Jan. 2003) (available at <http://

www.housingandenvironment.org/Text%20Files/

Pe NE, FF IE GI OP vs csstsnscciccracsscsturestiecoacmuecidenunss 11

TABLE OF AUTHORITIES — Continued

E.PA. and U.S. Army Corps of Engineers Press Re-

lease (December 16, 2003) (transcript available at

<http://yosemite.epa.gov/opa/admpress.nsf/blab9

£485b098972852562e7004dc686/540f28acf38d7f9

b85256dfe00714ab0?OpenDocument>)....................

Final Rule Establishing an Administrative Appeal

Process for the Regulatory Program of the Corps

of Engineers, 65 Fed. Reg. 16486 (March 28,

BOD) scovnssovenssnnseuttonntnianiincnecny nhannniateaiamiintoen

Frank Krejci, File No. 2000-11140 (U.S. Army

Corps of Engineers, Omaha District (2001) (ap-

SUNN II soisicn-cinceecounnincwieneeaamene

Ian C. Runge, Mining Economics and Strategy

(RID sesavoncacccseciencemmmrnicantcenonssaemonancsarmaenm mediante

Leavell/Grey Property, File No. 1997-00375 (U.S.

Army Corps of Engineers, Sacramento District

SOOT) COMOOT GOCUIIID osciensssccvervscresvaensernserrevencentnneta

Marek Property, File No. 2001-75341 (U.S. Army

Corps of Engineers, Sacramento District 2003)

(nee GIO oisisiov intr icecierrcrioncceoaee

Memorandum from Gary S. Guzy, General Counsel,

U.S. Environmental Protection Agency and

Robert M. Andersen, Chief Counsel, U.S. Army

Corps of Engineers, on Supreme Court Ruling

Concerning CWA Jurisdiction Over Isolated Wa-

ters, (January 19, 2001) (available at <http://www.

spk.usace.army.mil/pub/outgoing/co/reg/SWANCC.

Page

TABLE OF AUTHORITIES — Continued

Memorandum from Robert F. Fabricant, General

Counsel, U.S. Environmental Protection Agency

and Steven J. Morello, General Counsel, U.S.

Army Corps of Engineers, Guidance For Assert-

ing Federal Jurisdiction Over Isolated Wetlands

In Response to U.S. Supreme Court Decision in

SWANCC Case, 68 Fed. Reg. 1991 (2008)...............

National Research Council, Hardrock Mining On

Paterand Fee CF nick vescsscere te eresneresereacicenevasauans

Pat Parenteau, Position Paper on CWA Jurisdiction

Pursuant to SWANCC presented to Administra-

tor Whitman United States Environmental Pro-

tection Agency by the Association of State

Wetland Managers and the Association of State

Floodplain Managers (December 2001) (transcript

available at <http://www.aswm.org/fwp/swancc/

EIS) ans scinceseccssicsrctemnaaeneriotesheetvenininniate

Petition for Writ of Certiorari, Newdunn Associates

LLP v. U.S. Army Corps of Eng’rs (U.S. 2003)

CO; GED avvnsnccicsiciaemcndicetateceag eae

Sheila Deely and Mark Latham, The Federal

Wetlands Program: A Regulatory Program Run

Amuck, 34 Envtl. L. Rep. (Envtl. L. Inst.) 966

Ghani i OU asa bres aondaeomen aan

U.S. Army Corps of Engineers, Regulatory Guid-

ance Letter 94-01, Expiration Dates for Wetlands

Jurisdictional Delineations (May 23, 1994)............

U.S. Army Corps of Engineers, Regulatory Program

Website <http://www.usace.army.mil/inet/functions/

cw/cecwo/reg/district1.htm> ..................ssscscsessseesees

Page

TABLE OF AUTHORITIES — Continued

William Funk, The Court, the Clean Water Act and

the Constitution: SWANCC and Beyond, 31

Envtl. L. Rep. 10741 (Envtl. L. Inst.) (July 2001)........ 13

William B. Prince, Joint Development of Coal and

Coalbed Methane, 48 Rocky Mtn. Min. L. Inst.

IE Ce viriasnsccrsntdisanebincisatisinssncancasicasinesiemmesteaumanionnesins 2

William L. Want, Law of Wetlands Regulation

IID .xiiuch xochenesveanencarsenstdvedyuvsnntongrguncessitasantecunacanunarianl 4

INTERESTS OF AMICUS CURIAE

Amicus Curiae, the National Mining Association

(NMA), is a trade association representing producers of

most of America’s coal, metals and industrial and agricul-

tural minerals.’ The principal purpose of amicus is to

represent those with interests in the Nation’s mineral

resources industries in important public policy issues

affecting the development and use of mineral resources.

NMA members’ mining operations are located throughout

the country in nearly all the federal appellate jurisdictions

and within many of the different divisions and districts

designated by the U.S. Army Corps of Engineers (Corps).

Mine sites are characterized by a variety of different

geographic and physical features. For example, many

mines are located in extremely remote and arid regions. It

is not uncommon for drainage features in these areas to

rarely flow and, even then, only in response to a substan-

tial storm event. Similarly, many sites cover vast amounts

of acreage and are located in the vicinity of irrigation

canals, drainage ditches, and similar water management

systems. Consequently, NMA members are interested in

the establishment of a clear and predictable scope for

federal Clean Water Act (CWA) jurisdiction, 33 U.S.C.

§§ 1251 et seq. (1972) (amended 1977 and 1987). Predict-

ability of regulation is especially important to the mining

1 NMA has received the consent of the parties te file this brief as

amicus curiae. The letters of consent have been filed with the Clerk of

the Court. Pursuant to Rule 37.6 of this Court, amicus represents that

counsel for amicus authored this brief in its entirety and that no person

or entity other than amicus and its representatives made any monetary

contribution to the preparation or submission of this brief.

2

industry given the extraordinary amount of time, money

and planning inherent to the development and manage-

ment of most mining operations.

Mining companies have unique technological, logisti-

cal and economic challenges in that mineral resources are

fixed in location and limited in quantity.’ The steps related

to the development of the mineral resources involve a

substantial upfront commitment of money and time.

Assuming minerals exist in commercial quantities, “it can

be expected that around 12 years will elapse between the

start of [an] exploration [program] and commencement of

mine production.” Anthony M. Evans, Introduction to

Mineral Exploration 12 (1995). The amount of time it

takes to permit a mine and the amount of investment

essential for developing a mine translates to a staggering

financial commitment. For example, it is estimated that

the engineering, planning and development of modern coal

mines must be supported by the investment of hundreds of

millions of dollars. See William B. Prince, Joint Develop-

ment of Coal and Coalbed Methane, 48 Rocky Mtn. Min. L.

Inst. 19-1, 19-7 (2002) (describing these costs). Accordingly,

unanticipated delays and the associated unforeseen costs

related to inconsistent regulation impair the economic

viability of a new or ongoing operation. See Ian C. Runge,

Mining Economics and Strategy 29 (1998) (describing

economic uncertainty in mine development).

* The scarcity of hard rock minerals is well documented. “Known

ores constitute less than 0.01% of the metal content of the upper 1 km

of continental crust. Thus mines can only be located in those few places

where economically viable deposits have been formed and discovered

... ” National Research Council, Hardrock Mining On Federal Lands

23 (1999).

3

To the dismay of NMA members and since this Court’s

decision in Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Eng’rs (SWANCC), 531 U.S. 159

(2001), the U.S. Circuit Courts of Appeal have confounded

rather than clarified the analysis for determining what

portions of a mine site are potentially regulated as “navi-

gable waters” subject to CWA jurisdiction. As a result of

disjunctive appellate court jurisdictional analyses, the

regulated community, including NMA members, cannot

determine with certainty at what point a nonnavigable

water falls within the ambit of the CWA. Indeed, if NMA

members evaluate jurisdiction based on the current

“guidance” from the courts, they are forced to assess the

same sorts of features at different properties in different

ways based upon the view of the specific circuit in which

the site is located. Federal regulation should not, as a

matter of public policy, be predicated upon a belkanized

system of circuit-specific tests. The uncertainty and

attendant confusion over the scope of federal regulation

warrant review by this Court.

¢

OVERVIEW OF PERMITTING

OBLIGATIONS AT MINING OPERATIONS

Every mining enterprise is subject to myriad federal

and state regulatory regimes starting from when the

project is merely a glint in the prospector’s eye to the final

phases of mine closure and site reclamation. Detailed,

rigorous mine planning obligations, intended to prevent or

minimize mining-related environmental impacts, are

incorporated in federal and state laws including the

Federal Land Policy and Management Act (FLPMA), 43

U.S.C. §§ 1701 et seg. (1976) (amended in 1988), and the

oe

4

Surface Mining Control and Reclamation Act (SMCRA), 30

U.S.C. §§ 1201 et seg. (1977).

The overarching environmental requirements of the

land management statutes and mining-related statutes

are supplemented by the numerous federal, state and local

media-specific environmental programs established, for

example, under the Clean Air Act, the Resource Conserva-

tion and Recovery Act, and the CWA. As a consequence, in

addition to the environmental stewardship obligations

under FLPMA or the detailed planning and reclamation

provisions of SMCRA, mine operators must — consistent

with the CWA — obtain a permit for a discharge of a

pollutant from a point source to navigable waters, i.e.,

those subject to CWA jurisdiction. See Petition at 3-5

(discussing the statutory and regulatory framework

related to CWA permitting obligations). Consistently,

permits must be obtained for discharges of fill material

into jurisdictional waters associated with the construction

of support facilities, access roads, pipelines and a host of

other commonplace mine-related activities.

The Corps may (and frequently does) take more than

a year to process and issue a CWA permit covering dis-

charges of fill material to jurisdictional waters. See Na-

tional Assoc. of Home Builders v. U.S. Army Corps of

Eng’rs, __ F. Supp.2d ___, 2003 WL 23112466, *2 (D.D.C.

November 24, 2003) (recognizing the delay inherent in the

Corps’ permitting process); William L. Want, Law of

Wetlands Regulation 6, 8-9 (2003) (same). Mine operators

must, as a practical matter, conduct a site delineation and

assess CWA jurisdiction well in advance of any projects

that could potentially require a permit. Front-end jurisdic-

tional waters planning is even more essential given that

Corps-approved delineations cannot be challenged in court

a ee *

5

until after a permit applicant is denied a permit or de-

clines to accept a proffered permit. See 33 C.F.R. § 331.12

(2000) (establishing that a person may not file for judicial

review based on a permit denial or failure to accept a

proffered permit without exhausting administrative

remedies). See also Rueth v. U.S. Environmental Protec-

tion Agency, 13 F.3d 227, 230 (7th Cir. 1993) (indicating

that wetland jurisdiction questions are not ripe for re-

view); Southern Pines Assoc. v. U.S., 912 F.2d 713, 713-714

(4th Cir. 1990) (judicial review precluded until enforce-

ment action initiated). See generally Final Rule Establish-

ing an Administrative Appeal Process for the Regulatory

Program of the Corps of Engineers, 65 Fed. Reg. 16486,

16488 (March 28, 2000) (clarifying lack of pre-enforcement

review). As a result, prudent mine planning and the

realities of the Corps’ permit program dictate that the

nature and extent of CWA permitting obligations be

determined early in the mine planning process. If the

scope of a mine operator’s permit obligations is in flux,

years of planning can be compromised, resulting in delays

that can impair a mine’s viability.

e

REASONS FOR GRANTING THE PETITION

I. The Court Should Grant The Writ Of Certiorari

To Resolve The Irreconcilable Conflict Between

Decisions In The Fourth, Sixth And Ninth Cir-

cuits And Decisions In The Fifth Circuit

This case presents an important question whether the

mere potential for a connection or “nexus” with tradition-

ally navigable water can extend the reach of the CWA to

ditches, culverts, or other nonnavigable features. The Fifth

=x -

6

Circuit says no absent a “close, direct and proximate link.”

Rice v. Harken Exploration Co., 250 F.3d 264, 272 (5th Cir.

2001). In contrast, the Fourth Circuit answers yes as long

as there may be “some connection.” U.S. v. Deaton, 332

F.3d 698, 709 (4th Cir. 2003) petition for cert. filed (U.S.

November 10, 2003) (No. 03-701). The differences between

the circuits cannot be reconciled.

While this Court has recognized that there are “inher-

ent difficulties” in defining “precise bounds to regulable

waters,” it has also acknowledged that those bounds are

not limitless. U.S. v. Riverside Bayview Homes, Inc., 474

U.S. 121, 134 (1985) (the Corps has jurisdiction over

wetlands “inseparably bound up” with navigable waters).’

The language of the statute establishes a basis for consid-

ering those bounds. See SWANCC, 531 U.S. at 167 (recog-

nizing that “[t]he term ‘navigable’ has at least the import

of showing us what Congress had in mind as its authority

for enacting the CWA”). In that regard, this Court has

instructed that to establish jurisdiction over “waters,”

there must be a “significant nexus” with a traditionally

navigable water. Id.

In the case at issue, the Fourth Circuit eviscerates

SWANCC’s core principle requiring a “significant nexus” to

navigable waters by extending the reach of CWA to “any

branch of a tributary system that eventually flows into a

navigable body of water.” Deaton, 332 F.3d at 711 (emphasis

* The language in the statute specifies that the CWA applies to

“navigable waters” further defined to mean “waters of the U.S. includ-

ing the territorial seas.” 33 U.S.C. § 13862(7) (1972) (amended 1977 and

1987). See generaily Petition at 3-5 for a description of the statutory

and regulatory language defining “navigable waters.”

7

added). When this Court in Riverside Bayview found in the

CWA intent to “regulate at least some waters that would

not be deemed ‘navigable,’” 474 U.S. at 133 (emphasis

added), it did not mean, as the Fourth Circuit suggests, all

non-navigable waters with “some connection” (i.e., any-

thing that “eventually provides ‘additional matter’”) to

‘navigable waters, Deaton, 332 F.3d at 709-710. Under the

Fourth Circuit’s reading of the law, the SWANCC-

described nexus for finding jurisdiction is rendered mean-

ingless.

Other circuits have-similarly run afoul of SWANCC.

The Sixth Circuit finds that a hydrologic connection from a

wetland to a manmade drain to a traditionally navigable

water is sufficient to assert CWA jurisdiction because the

flows “could affect” a navigable water. U.S. v. Rapanos,

339 F.3d 447, 453 (6th Cir. 2003) petition for cert. filed

(U.S. December 22, 2003) (No. 03-929). Similarly, in the

Ninth Circuit, irrigation canals that retain water via a

system of gates are jurisdictional because the gates could

fail and allow flows to reach a navigable water. Headwa-

ters, Inc. v. Talent Irrigation District, 243 F.3d 526, 534

(9th Cir. 2001). That attenuated connection is far less than

the “significant nexus” required by SWANCC.

In stark contrast, the Fifth Circuit finds these formu-

lations of CWA jurisdiction “unsustainable under

SWANCC.” U.S. v. James Hamilton Needham, et al., ___

F.3d __, 2003 WL 22953383, *3 (5th Cir. December 16,

2003). Heeding this Court’s warning not to read the word

“navigable” out of the CWA, the Fifth Circuit has held that

under SWANCC, “a body of water is subject to regulation

...1f the body of water is actually navigable or is adjacent

to an open body of navigable water.” Rice, 250 F.3d at 269.

It follows then that “puddles, sewers, roadside ditches and

8

the like” are not conduits for extending the scope of CWA

jurisdiction. Needham, WL 22953383 at *3.

The product of the current jurisdictional split in the

circuits is widespread uncertainty regarding the applica-

bility of the CWA to nonnavigable waters. This uncertainty

has direct and enormous consequences for mine planning

and development. Mine operators must design their

facilities around the location of the ore body while account-

ing for geographical limitations at the site. Accordingly,

mine-related activities will occur in and around irrigation,

drainage or similar ditches and water features. The post-

SWANCC confusion creates different federal CWA permit-

ting obligations in different parts of the country.

A mine operator in West Virginia, Kentucky or Ne-

vada who applies Deaton or its Sixth and Ninth Circuit

corollaries evaluates whether the discharge could eventu-

ally reach a jurisdictional water. Accordingly and in the

absence of any limiting principles, the operator may be

forced to undertake the lengthy and costly CWA permit

process to cover potential discharges related to access road

construction in the vicinity of a ditch or drainage (no

matter how remote) because those discharges could affect

traditionally navigable waters. These types of decisions

can be speculative, produce absurd results, and trigger

federal CWA permits for nearly every project at a site. On

the other hand, an operator, evaluating permitting issues

for a similar project in the vicinity of comparable features

in Texas, could reasonably conclude that the link between

the road construction and any traditionally navigable

water is too far removed to trigger jurisdiction and would

not pursue a permit from the Corps.

9

The appellate court disagreement regarding CWA

jurisdiction is, therefore, problematic in that it produces

wildly different, irreconcilable results. Members of the

regulated community are unable tc evaluate, with reason-

able certainty, the scope of federal regulation at existing or

future projects. In short, this real and present circuit

conflict warrants this Court’s review.

II. The Post-SWANCC Confusion Compromises The

Integrity Of The Regulatory Process

The circuit conflict is symptomatic of the confusion

that pervades the Corps’ administration of the Section 404

program. Just as the circuits have reached markedly

different conclusions about the post-SWANCC reach of the

CWA, the Corps likewise struggles with supplying a

coherent set of principles by which regulated parties can

reasonably ascertain what is expected of them. The pros-

pect for deriving such guidance through the administra-

tive process fashioned by the Corps is remote. The process

is ill-suited for producing what elementary fairness

compels — clarity and consistency.

The Corps is a highly decentralized organization so

“[mlJost of the authority for administering the program has

been delegated to the thirty six district engineers and

eleven division engineers.”* 33 C.F.R. § 320.1(a)(2) (2000).

Most CWA jurisdictional decisions occur in the field as a

result of case-by-case determinations for permit applications,

‘ There are now more than thirty six districts established by the

Corps. See U.S. Army Corps of Engineers, Regulatory Program Website

. <http://www.usace.army.mil/inet/functions/cw/cecwo/reg/district1.htm>.

10

33 C.F.R. § 325.1 (1990), or separate jurisdictional deter-

minations, 33 C.F.R. § 325.9 (1990). These determinations

by the district engineers may be appealed administratively

to the appropriate division engineer (and the designated

review officer), 33 C.F.R. § 331.7(a) (2000), but the admin-

istrative decisions carry no “precedential value” even

within the same Corps district. 33 C.F.R. § 331.7(g).

The results of this administrative process vary widely

among and within the districts. For example, the Sacra-

mento District generally declines to regulate drainage and

irrigation ditches constructed in uplands while the Omaha

District has concluded that any road ditches that capture

and convey waters are, without limitation, jurisdictional.

Compare Leavell/Grey Property, File No. 1997-00375 (U.S.

Army Corps of_ Engineers, Sacramento District 2002)

(appeal decision) with Frank Krejci, File No. 2000-11140

(U.S. Army Corps of Engineers, Omaha District 2001)

(appeal decision). Within the same district, indeed on the

same property, the Corps will reach different results about

CWA jurisdiction. See, e.g., Marek Property, File No. 2001-

75341 (U.S. Army Corps of Engineers, Sacramento District

2003) (appeal decision) (questioning the agency’s inconsis-

tent jurisdictional determinations on roadside channels

located on property). We respectfully cross-reference the

Petition for Writ of Certiorari in Newdunn Associates LLP

v. U.S. Army Corps of Eng’rs, No. 03-637 at 20-22 (Oct. 30,

2003), for its examples of inconsistent agency decision

making on CWA jurisdiction.

The inconsistency in the results of the administrative

review process erodes confidence in the process. But even

worse, the hardship of the process itself can be so substan-

tial that it often deters the pursuit. Presently, landowners

faced with the uncertain prospects about the applicability

11

of the Section 404 to their activities have several choices:

(1) proceed without Corps’ permission; (2) immediately

acquiesce and apply for a permit; or (3) seek a determina-

tion from the Corps regarding the scope of CWA jurisdic- \

tion.

The first choice carries grave risk of civil and criminal

sanctions if the district engineer decides the landowner

chose poorly. The second choice embodies substantial

burdens in terms of time and expense. One study found

the mean cost of preparing an individual permit applica-

tion to exceed $270,000, excluding the expenses related to

satisfying permit stipulations such as mitigation and

design changes to the proposed project. David L. Sunding &

David Zilberman, Non-Federal and Non-Regulatory Ap-

proaches to Wetlands Conservation: A Post SWANCC Explo-

ration of Conservation Alternatives at 7 (Jan. 2003) (available

at <http://www.housingandenvironment.org/Text%20Files/

Wetlands_Final.PDF>). On average, these individual per-

mits required a total of 788 days to prepare and obtain a

decision, with 405 of those days involving the Corps’

deliberations. Jd. at 8.

Finally, a project proponent can request that the

Corps issue a jurisdictional determination as to whether

an area is subject to regulatory jurisdiction under Section

404. See 33 C.F.R. § 325.9 (1990) (describing authority of

Corps to issue such determinations). However, this deter-

mination cannot “include determinations that a particular |

activity requires a ... permit.” 33 C.F.R. § 331.2 (2000)

(definition of jurisdictional determination). And, this is not

the only caveat or limitation. The determination remains

in effect for only five years, hardly providing sufficient

repose on a threshold question that could sink many an

enterprise. See U.S. Army Corps of Engineers, Regulatory

12

Guidance Letter 94-01, Expiration Dates for Wetlands

Jurisdictional Delineations (May 23, 1994). But, without

question, the most unsatisfactory aspect of this path is the

absence of any recourse to a neutral arbiter if the land-

owner disagrees that the area is subject to Section 404.

While a jurisdictional determination can be administra-

tively appealed, it cannot be appealed to court. Instead, if

the project proponent is dissatisfied with the scope of

jurisdiction defined by the administrative process, the

process cruelly redirects one to the second choice — seek a

permit, decline it, and then exhaust “all applicable admin-

istrative remedies” before seeking judicial review. 33

C.F.R. § 331.12 (2000).

The pervasive uncertainty on the threshold question

of regulatory jurisdiction denies the regulated community

any real choices since under the present circumstances

none of these choices can be truly informed ones. The

present uncertainty combined with the undue process (and

its hardship) prescribed by the agency makes reliance

more uncertain, investments less justified, and the pro-

gram less credible. The Court should take this case to

provide clarity and restore integrity to the process.

III. The Court’s Guidance Is Necessary Because The

Executive Branch Has Abdicated Its Prerogative

To Provide National Policy On CWA Jurisdiction

Ordinarily, one would expect the Executive Branch to

exercise its prerogative and provide the public the cer-

tainty it deserves with respect to the scope of CWA regula-

tion. The Executive Branch has, however, recently

announced that it is declining to provide guidance and

policy on this important national question. As a conse-

quence, without this Court’s intercession in this case, the

13

plans and investments of NMA’s members remain intol-

erably at risk to the whims of the numerous district

engineers attempting to draw jurisdictional lines without

principled guidance.

By most accounts, SWANCC was a significant ruling

addressing the scope of the CWA. See, e.g., Sheila Deely

and Mark Latham, The Federal Wetlands Program: A

Regulatory Program Run Amuck, 34 Envtl. L. Rep. (Envtl.

L. Inst.) 966, 966-967 (April 25, 2003) (characterizing

SWANCC as “dramatically altering” the jurisdictional

framework); Pat Parenteau, Position Paper on CWA

Jurisdiction Pursuant to SWANCC presented to Administra-

tor Whitman United States Environmental Protection

Agency by the Association of State Wetland Managers and

the Association of State Floodplain Managers (December

2001) (referencing turmoil since SWANCC) (transcript

available at <http://www.aswm.org/fwp/swancc/position. pdf>);

William Funk, The Court, the Clean Water Act and the

Constitution: SWANCC and Beyond, 31 Envtl. L. Rep.

10741 (Envtl. L. Inst.) (July 2001) (referencing potentially

staggering impacts for environmental law related to

SWANCC). This is precisely how the agencies’ chief legal

officers characterized the decision days after its issuance.

See Memorandum from Gary S. Guzy, General Counsel,

U.S. Environmental Protection Agency and Robert M.

Andersen, Chief Counsel, U.S. Army Corps of Engineers, on

Supreme Court Ruling Concerning CWA Jurisdiction Over

Isolated Waters, (January 19, 2001) (available at <http://

www.spk.usace.army.mil/pub/outgoing/co/reg/SWANCC. pdf>).

Notwithstanding this characterization, the agencies’

lawyers concluded “that most CWA jurisdiction remains

basically intact,” id. at 5, and advised that the agencies

continue to assert jurisdiction “upstream to the highest

14

reach of the tributary system, and over all wetlands

adjacent to any and all of those waters.” Id. at 6. Compare

with SWANCC, 531 U.S. at 176-77, 189-90 n.14 (recogniz-

ing majority opinion as drawing a jurisdictional line that

invalidates not only the migratory bird rule but jurisdic-

tion over “intermittent rivers, streams, tributaries and

perched wetlands that are not contiguous or adjacent to

navigable waters”) (Stevens, J. dissenting).

Whether due to confusion related to the post-

SWANCC jurisprudence or to discomfort with the agencies’

miserly view of the “significance” of this Court’s ruling, the

Corps and EPA proceeded to take a second look at

SWANCC’s effect on the CWA state of regulatory affairs in

different ways. First, the chief legal officers have raised

questions about the basis for asserting jurisdiction over

certain nonnavigable waters. See Memorandum from

Robert F. Fabricant, General Counsel, U.S. Environmental

Protection Agency and Steven J. Morello, General Counsel,

U.S. Army Corps of Engineers, Guidance For Asserting

Federal Jurisdiction Over Isolated Wetlands In Response to

U.S. Supreme Court Decision in SWANCC Case, 68 Fed.

Reg. 1991, 1996 (January 15, 2003) (2003 Guidance).

Second, the agencies also initiated a rulemaking in order

to “help ... the public understand[] what waters are

subject to CWA jurisdiction.” Advance Notice of Proposed

Rulemaking on the Clean Water Act Regulatory Definition

of “Waters of the United States,” 68 Fed. Reg. 1991, 1993

(January 15, 2003). Quite apart from the fact that it has

been “some time” since the agencies engaged the public in

a discourse on this question, id., the agencies specifically

recognized that the public interest would be served by a

rulemaking “to ensure that [the regulations] are consistent

with the SWANCC decision.” Id.

15

Unfortunately, the Executive Branch has now in-

formed the regulated community that it is not up to the

task. The agencies have decided they will not promulgate

a rule to clarify jurisdiction under the CWA. See E.P.A. and

U.S. Army Corps of Engineers Press Release (December 16,

2003) (transcript available at <http://yosemite.epa.gov/opa/

admpress.nsf/b1lab9f485b098972852562e7004dc686/540f28ac

£38d7f9b85256dfe007 14ab0?OpenDocument>). Instead, NMA’s

members and others with real property interests, are cast

adrift with instructions to navigate the protracted and

perilous case-by-case administrative process. The sole

compass is the 2003 Guidance that raises — but does not

answer — the lingering questions about the basis for

asserting jurisdiction over waters other than those that

are navigable, their primary tributaries and wetlands

adjacent to those waters. See generally 2003 Guidance

(cataloging post-SWANCC jurisprudence on these mat-

ters).

NMA’s members are left with an unsatisfactory choice;

they can incur substantial expense and delay to obtain a

permit that may be unnecessary, or proceed at grave risk

of enforcement sanctions if a district engineer deems the

choice unwise. The status quo may be perfectly acceptable

to those charged with administering the regulatory pro-

gram. But for those who must endure the hardship of the

process itself, further guidance from this Court is now

essential.

a

16

CONCLUSION

The Petition for Writ of Certiorari should be granted.

DATED: a 30, 2004.

HAROLD P. QUINN, JR.

NATIONAL MINING

ASSOCIATION

101 Constitution Avenue, NW

Suite 500 East

Washington, DC 20001-2133

(202) 463-3240

Respectfully submitted,

LisA A. KIRSCHNER*

JIM BUTLER

PARSONS BEHLE & LATIMER

One Utah Center

201 South Main Street,

Suite 1800

Salt Lake City, UT

84145-0898

(801) 5382-1234

*Counsel of Record