Amicus Curiae Brief — Deaton v. United States

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Supreme Court. U.S.

FILED |

3, JAN 3.0 2004

OFFICE OF THE cs -. |

No. 03-701 .

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES S. and REBECCA DEATON,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals For The

Fourth Circuit

Brief of Amici Curiae Nationwide Public Projects

Coalition, West Valley Water District of San Bernadino,

CA, Metropolitan Denver Water Authority of Littleton,

CO, Cobb County-Marietta, GA Water Authority and

Consolidated Mutual Water Company of Colorado in

Support of Petitioners

LAWRENCE R. LIEBESMAN*

RAFE PETERSEN

STUART W. TURNER

HOLLAND & KNIGHT LLP

2099 Pennsylvania Avenue, NW

Washington, D.C. 20006

(202) 955-3000

* Counsel of Record

QUESTIONS PRESENTED

A three-foot wide roadside drainage ditch runs

alongside the property of James and Rebecca Deaton in rural

Wicomico County, Maryland. The roadside ditch was built

and is maintained by the county roads department and

connects to a ditch system operated by a public association

established under state law to address local drainage

problems. The Deatons dug a ditch on their property and, in

so doing, disturbed an area the United States Army Corps of

Engineers considers a wetland.

There is no showing that common dirt—the pollutant

at issue—left the Deatons’ property, flowed into the roadside

ditch, or reached any truly navigable waters.

The questions presented are:

1. Are the roadside ditch and the wetland next to it

“navigable waters” under the Clean Water Act?

2. Where activity in a wetland has not degraded

either a nonnavigable roadside ditch next to the wetland or a

downstream traditional navigable water, does Congress’s

commerce power over navigation allow federal regulation of

that wetland or that roadside ditch?

TABLE OF CONTENTS

FLEES FIND FOR OD ov ccrsnernssvctvininiensstitcntinesiiiccintctibanttes i

SAN OE ALTE scttcesssisircestncciatunicessiieensimencctunns ili

INTERESTS OF THE AMICI CURIAE ..........c.sscssossscsseees 1

SUMMARY OF ARGUMENT ................-ssccssscsssssssesseosees 6

FERAIETG 8 ciciicsionaniendenighninaalmma ais 7

I. The Split Between the Circuits is Manifest .................... 7

II. The Public Interest is Damaged by This

Cea LI iesierisscictisvcseacteindsecianecsveticsasnctinens 12

A. Due to the Overlap of EPA Districts With

Federal Circuits, the Current Split in the Circuits

Parces Regulators to Apply Disparate Standards

‘fferent Projects Within their Authority........ 12

B. The Rationale in Deaton Will Adversely

Affect Vital Public Projects By Subjecting

Them To The Onerous Individual 404 Permit

PUG Fis TN CI istics cennrereesitinicinetcnions 15

III. The EPA and Corps of Engineers have Refused to

Resolve the Current Jurisdictional Confusion ............ 16

Ca AIT ss-convccssnsesiciencaeiamtsinnissiidialigindindsasitiniaeaiaasiiiaueniiles 18

TABLE OF AUTHORITIES

CASES

Carabell v. U.S. Army Corps of Eng'rs,

257 F. Supp. 2d 917 (E.D. Mich. 2003)........-.::0+ 11

Daniel Ball,

77 U.S. (10 Wall.) 557 (1870) ......eseeeseesesereeseeeeeneees 4

Economy Light & Power Co. v. United States,

256 U.S. 113 (1921)........essssseccereseereseseessessssesensensenes y

FD & P Enters.. Inc. v. U.S. Army Corps of Eng'rs,

239 F. Supp. 2d 509 (D.N.J. 2003) .......essserererereees 11

In re Needham,

-- F.3d -- 2003 WL 22953383

(Sth Cir. Dec. 16, 2003) .........ecsseseresererenenenensereres passim

N.C. Shellfish Growers Ass'n

v. Holly Ridge Assocs., LLC,

278 F. Supp. 2d 654 (E.D.N.C. ) | |) ne aeran 11

Rice v. Harken Exploration Co.,

250 F.3d 264 (Sth Cir. 2001)........:ceeceeccseeeersereeees 9, 13,14

Solid Waste Agency

v. U.S. Army Corps of Eng'rs,

531 U.S. 159 (2001)..........cesceessereeesereeeeserreeneenees passim

United States v. Appalachian Elec. Power Co..,

311 U.S. 377 (1940) ......ecssecsesseeeseeneneseessecsenseasenesneenes J

United States v. Deaton,

332 F.3d 698 (4th Cir. 2003).......::csecceseeeeerseenees passim

iil

United States v. Deaton,

No. MJG-95-2140,

ate | ee By. : +. Sennen one 8

United States v. Rapanos,

FFF Fe GGT CO Gh, BOTS sveivcsvevisssessecessesioness 10, 13, 14

United States. v. Rueth Dev. Co.,

189 F. Supp. 2d 874 (N.D. Ind. 2001),

aff'd., 335 F.3d 598 (7th Cir.),

cert. denied, 72 U.5.L. W. 3282 (2003).......:00seees0s0s 7-8, 14

REGULATIONS

Se Rr a Ee I sei sesteinicntenvivteinennlesaacioonnpinenaiaees 13

ae es ie Te ED wonvcncshircsnsiccanecslecesinncip behead 16

ETB 6 re te sctrenencvirticnimabaniintiies 16

eo ly Fe Ee ninsteaiiniasentnaawenens 10

SE FOG. Rew. 41,206 COV, 13, TIGG) .ociccvsessscsevessvvscevsessosees 7

65 Fed. Reg. 12,818 (Mar. 9, 2000)...............0. seonlene esse 16

67 Ped. Reg. 2020 (ian. 15, FIGZ) esscosscessvsvesssvseredescosennene 15

OS Fed, Ram. FFGE CH. 1G, FD cieonstsccocessnenserssnictscencesv 17

STATUTES

ee ee CD sieenanerisadatisnticoeannaerden 14

De Re Te NES MEM CISD sessivvcsasvsvccvecssssvevievaieesaveten 4

MISCELLANEOUS

Federal Jurisdiction of Navigable

Waters Under Clean Waters,

2003 WL 56335158 (2003) (Statement of

G. Tracy Mehan, Assistant Administrator

for Water, U.S. Environmental Protection

AGENCY) ......sesssseeseseseecesseseectessesseecsssseesenenseneneaenesensess 17

Margaret A. Strand,

Wetlands Deskbook (2d Ed. 1997) ........sssssessseeeseeseess 3

43 Op. Att'y Gem. 15 (1979)... esesesssesssressseereneneneneneneesenseees 3

The Nationwide Public Projects Coalition, headquartered in

Colorado, with Coalition members the West Valley Water

District of California, the Metropolitan Denver Water

Authority, the Cobb County-Marietta Water Authority of

Georgia and The Consolidated Mutual Water Company of

Colorado, as amici curiae, respectfully submit this brief in

support of Petitioners James and Rebecca Deaton.’

INTERESTS OF THE AMICI CURIAE

The Amici are cities, water and wastewater districts,

and private entities that serve public agencies that provide

essential services to the public. Amici believe that the

current unsettled status of the jurisdictional reach of the

Clean Water Act ("CWA"), and the fact that the responsible

agencies have declined to cure this uncertainty, requires the

Court to step in and resolve these outstanding questions. The

current lack of clarity has profound implications for the

ability of Amici's members and other participants to provide

public services in a timely and cost efficient manner.

The Nationwide Public Projects Coalition

(""NPPC") is a not-for-profit association that is made up of

regional and local government agencies that are involved in

municipal water supply, flood control, agricultural irrigation,

and wastewater and stormwater management. These

agencies represent some fifteen million constituents,

extending from Connecticut to California and from Alaska to

Georgia. NPPC's goal is to represent the public's interest in

ensuring that vital public infrastructure services are provided

' The parties have consented to filing of this brief. The Amici have

filed letters of consent with the Clerk. Pursuant to this Court's Rule 37.6,

Amici state that no counsel for any party in this case authored this brief

in whole or in part, and no person Or entity other than the Amici and their

counsel has made a monetary contribution to the preparation and

submission of this brief.

{

in a safe, timely, affordable, and environmentally-

responsible fashion. Consisting predominately of public

agencies and firms that provide services to the public sector,

NPPC’s members must ensure that a fair balance is achieved

between environmental values and the essential needs of the

public.

The West Valley Water District of San Bernadino,

California ("WVWD") is an independent special water

district that serves a population of approximately 55,000

citizens.

The Metropolitan Denver Water Authority of

Littleton, Colorado ("MDWA") is a political subdivision

and public corporation of the State of Colorado. MDWA is

made up of twenty cities and special districts that provide

municipal water and/or wastewater services for the

Metropolitan Denver area and serve more than 1.5 million

persons. MDWA's member agencies serve some of the

fastest-growing counties in the nation.

The Cobb County-Marietta Water Authority

("CCMWA") is a political subdivision of the State of

Georgia that supplies water to more than 700,000 people in

the rapidly growing Metro-Atlanta area.

The Consolidated Mutual Water Company

("“CMWC") is a mutually owned, and serves an estimated

population of 83,000 people in Jefferson County, Colorado

in the Western region of Metropolitan Denver.

This case has a profound impact on the Amici, and on

the public that they serve. The U.S. Army Corps of

Engineers' (“Corps”) inconsistent assertion of CWA

regulatory jurisdiction even over de minimus ditches, swales,

intermittent streams and drainages, dry washes and many

Dea

other remote, ephemerally wet areas alleged to be connected

by the most tenuous of means to larger bodies of water

affects public and private projects throughout the Nation, and

contributes little or nothing to the protection of the

environment.

This inconsistency is compounded by the clear split

among federal circuits over the proper scope and

interpretation of the Supreme Court's 2001 decision in Solid

Waste Agency v. United States Army Corps of Engineers

("SWANCC"), 531 U.S. 159 (2001). Several regional

offices of the United States Environmental Protection

Agency ("EPA") and divisions of the Corps overlap two or

more circuits that have arrived at opposing conclusions

regarding CWA jurisdiction in the wake of SWANCC.

Therefore, the practical effect of the split is to make it

incumbent upon individual regulators to evaluate competing

legal standards depending upon where a particular project or

parcel happens to lie.

The reigning confusion over the proper jurisdictional

reachi of the CWA in the wake of SWANCC has a chilling

effect on public projects by allowing the Corps and the EPA

to override carefully considered decisions and investments of

state and local governments that are intended to meet vital

2 4 1979 Opinion of the Attorney General determined that EPA has

the ultimate authority for determining the extent of CWA jurisdiction.

See 43 Op. Att'y Gen. 15 (1979). The Corps and EPA, however, entered

into a memorandum of agreement in 1989 that accords the Corps primary

authority to determine the scope of geographical jurisdiction under the

CWA. See Margaret N. Strand, Wetlands Deskbook, (2d ed. 1997)

(Mem. of Agreement Between the Department of the Army and the

Environmental Protection Agency Concerning the Determination of

Geographic jurisdiction of the Section 404 Program and the Application

of the Exemptions Under Section 404(f) of the Clean Water Act (Jan. 19,

1989)).

public needs, including lifesaving infrastructure. As it is, in

the absence of any clear guidance, public agencies such as

the Amici are often at the "whim" of a particular regulator as

to the jurisdictional test to be employed. The "real world"

impacts for public projects are profound.

For example, stormwater management agencies

generally require access to wetlands and streams and other

areas that are seasonally wet due to collection of rainwater.

Depending on the jurisdiction, these agencies may require

authorization from the Corps to conduct basic, but important,

maintenance functions such as cleaning debris basins and

clearing vegetation and other obstructions that choke flood

control channels. Such activities are critical to maintaining

the maximum capacity and proper functioning of the flood

control systems during major flood events. These activities

are especially critical for NPPC members in Southern

California that must rapidly clean out accumulated sediment

from flood control channels to prevent flood damage and

loss of life. Many of these areas have water during storms

but are otherwise dry. In the wake of SWANCC, and in the

face of inaction by the U.S. Environmental Protection

Agency ("EPA") and the Corps, the Amici have found it

difficult if not impossible to predict where and when CWA

jurisdiction will be imposed.

The Fourth Circuit's holding in United States v.

Deaton, 332 F.3d 698 (4th Cir. 2003), is representative of a

trend among some circuits to limit the SWANCC decision to

the overturning of a single EPA regulation, the "Migratory

Bird Rule." These courts sharply reserve SWANCC to its

facts, while propagating a broadly inclusive test (the so-

called "migratory molecule" test) for federal jurisdiction

under the Clean Water Act, 33 U.S.C. §§ 1251 et_seq.,

("CWA") (2003). Such a test would, in fact, include the very

Sen OT te ae et nee ea ne oe Seen ee ere aS

isolated wetlands found to be outside the jurisdiction of the

CWA in SWANCC.

Amici believe that this Court did not intend for

SWANCC to be applied in such a limited fashion. In our

view, the court performed a careful and accurate review of

the grounds upon which the CWA jurisdiction is based.

Amici believe that the reading of SWANCC represented by

the Fifth Circuit's recent holding in In re Needham, -- F.3d--,

2003 WL 22953383 (Sth Cir. Dec. 16, 2003) is an accurate

reading of the Court's concern in SWANCC with the

violation of traditional local and state prerogatives.”

Thus, clarification of the current confusion by the

Court is essential to provide the Amici’s diverse membership

with minimal levels of certainty and predictability in the

processes necessary for design and implementation of public

works projects. The Amici’s members invest countless

hours and hundreds of millions of tax dollars planning,

assuring financing, preparing for, and constructing public

service projects of significant, long-term cost. If projects

that impact only remote and ephemeral waters (such as the

drainage ditches at stake in Deaton) are subject to the

complex CWA 404 permitting process, countless hours and

millions of tax dollars for vital public works projects could

be needlessly sacrificed. The long-range consequences for

the Nation may include significant decreases in not only the

quantity and quality of public works projects, but also the

3 Indeed, SWANCC made it absolutely clear that intrusion of federal

jurisdiction into matters traditionally reserved to state and local

governments (such as land use) cannot be permitted, absent a clear

statement of Congressional intent not found in the CWA. SWANCC,

531 U.S. at 172-173. Disregard of this clear holding is, in Amici's view,

among the primary flaws in the reasoning of the Fourth Circuit in

Deaton.

ability to timely deliver public services necessary to protect

public health and welfare.

SUMMARY OF ARGUMENT

1. The limited reading of the SWANCC decision

embodied by Deaton and shared by decisions in the Sixth,

Seventh and Ninth Circuits stands in stark contrast to the

analysis of the Fifth Circuit in Needham and other cases.

The limited reading in Deaton grants the federal government

an overbroad jurisdictional reach, and disregards significant

aspects of the SWANCC decision.

2. The geographic reach of many of the EPA and the

Corps's regional offices include states from circuits on both

sides of the split over SWANCC. This forces the regulators

to determine which test they will apply to which projects

based upon location and the current state of case law in a

given circuit. Individual regulators thus decide the reach of

Congress's Clean Water Act authority.

3. The broad jurisdictional reach granted by Deaton

will make it very difficult for Amici to utilize the "fast track"

Nationwide Permit Program for the public activities they

perform. Forcing such critical activities into the individual

permit program will greatly increase costs of delivering

important public services such as water supply and flood

control.

4. The Corps and the EPA, as responsible agencies,

have stated that they will not issue new regulations to resolve

this uncertainty, or recognize the new limitations upon their

authority represented by SWANCC. Action by the Supreme

Court is thus the only means by which this confusion can be

resolved, and the holding in SWANCC be given its intended

effect.

in dalt Mci i L AR ne let iit Ag Ng! BOY ti Rha LODE ARH. VOR BE

ARGUMENT

I. The Split Between the Circuits is Manifest

In the wake of the Supreme Court's decision in

SWANCC, courts have scrambled to re-evaluate the scope

and reach of the government's regulatory authority over

"navigable waters" pursuant to the CWA. The split in

interpretation among the courts wrestling with SWANCC

was deep and instantaneous. In the three years since the high

Court ruled, two diametrically opposed, fully articulated

interpretations have emerged among the federal courts.

Courts in the Ninth, Fourth, Sixth and Seventh

Circuits have interpreted the decision as a limited holding of

no significant jurisdictional import beyond the invalidation

of the controversial 1986 regulation allowing the Corps to

assert jurisdiction over isolated wetlands based on their use

by migratory birds (the "migratory bird rule"). Final Rule

for Regulatory Programs of the Corps of Engineers, 51 Fed.

Reg. 41,208, 41,217 (Nov. 13, 1986). This group includes

the Fourth Circuit's decision in Deaton, at issue here.

In Deaton, the Fourth Circuit upheld the Corps's

assertion of jurisdiction over drainage ditches, tributaries of

all description, and isolated wetlands that have any type of

surface water connection to regulated "navigable waters," no

matter how attenuated or intermittent. The court in Deaton

gave significant deference to the Corps's expansive definition

of "tributary," which asserts jurisdiction even over a roadside

ditch with only a tenuous link to a navigable water is

jurisdictional, even in the absence of evidence that water

from the ditch actually reaches the navigable water. The

construction of "tributary" jurisdiction in Deaton is

substantially similar to, and indeed is derived from, that

found in United States. v. Rueth Development Co., 189 F.

Supp. 2d 874, 877 (N.D. Ind. 2001) (vacated by application

of consent decree), affid., 335 F.3d 598 (7th Cir.), cert.

denied, 72 U.S.L.W. 3282 (2003).

In the Rueth case, the District Court initially ruled

that if “a molecule” of water from the disputed wetland

eventually intermingles with the molecules of a navigable

water, the Corps has jurisdiction: “A drop of rainwater

landing in the Site is certain to intermingle with water from

the Little Calumet River . . . the Site, therefore, has the

‘significant nexus’ to a navigable waterway [required by

SWANCC].” Id. This "migratory molecule" theory is the

most extreme and aggressive construction of the Corps's

authority yet acknowledged by a post-SWANCC court, and

it is this construction which was asserted by the Corps and

upheld by the Fourth Circuit in Deaton. *

Courts arriving at this conclusion are, quite simply,

ignoring the clear import of the SWANCC decision.

Confronted with the limitations clearly set forth in

SWANCC, they have simply constructed and applied an

even more inclusive standard of adjacency and tributary

jurisdiction. However, common sense must prevail here. It

is common knowledge that the natural water system in the

United States is not rigidly separated by physical boundaries.

Justice Stevens, dissenting in SWANCC, noted that most

wetlands designated as “isolated” in fact have some degree

of hydrological connection to the surrounding water system.

SWANCC, 531 U.S. at 176, n.2. However, if a single

molecule is enough to create jurisdiction, then the Corps has

jurisdiction over practically every drop of water anywhere in

* In Deaton, the Fourth Circuit upheld the Maryland District Court's

Order denying the Deatons' Motion to Reconsider. Deaton, 332 F.3d at

714. In that Order, the district court cites Rueth for the single-molecule

test. United States v. Deaton, No. MJG 95-2140, slip op. at 17 (D. Md.

Jan. 28, 2002). j

the nation, unless that drop of water is caught in a jar as

rainfall from the sky. Under this reading, even the waters at

issue in SWANCC would still be jurisdictional.

In contrast, the Fifth Circuit recently reaffirmed its

own, more far-reaching reading of SWANCC in the case of

Needham. In Needham, the Fifth Circuit determined that

SWANCC restricted the authority of the Corps and the EPA

over waters.and wetlands that are a significant distance from

traditionally navigable waters.>

The Needham decision reaffirmed the Fifth Circuit's

decision in Kice v. Harken Exploration Co., 250 F.3d 264

(5th Cir. 2001), and argued strongly for a broad construction

of the reach of the SWANCC decision. In Harken, the

owner of the surface rights to a tract of land utilized for oil

exploration and drilling filed suit u:der the Oil Protection

Act ("OPA") against the drilling company for the

accumulated damage to the soil and groundwater resulting

from many small-scale discharges of oil and other pollutants

onto the soil, and eventually into Big Creek, a small seasonal

creek. Big Creek was variously reported to be "seasonal,"

"intermittent," and occasionally underground (discharges

occurred on land "that only infrequently carried running

water").

The plaintiffs argued, and the court agreed, that

Congress intended for "navigable waters" to have the same

meaning under the OPA as under the CWA but that in light

of SWANCC, “a body of water is protected under the Act

only if it is actually navigable or is adjacent to an open body

of navigable water." Id. at 270. Continuing its OPA analysis

5 That is, "navigable-in-fact," as developed by the Daniel Ball line of

cases: Daniel Ball, 77 U.S. (10 Wall.) 557 (1870); Economy Light &

Power Co. v. United States, 256 US. 113 (1921); United States v.

Appalachian Elec. Power Co., 311 U.S. 377 (1940).

in the context of the CWA definition, the court concluded

that neither the groundwater nor the non-navigable creek at

issue were protected by the CWA (and, therefore, fell outside

the OPA as well). The court also declined to extend the

coverage of the CWA to a discharge on dry land that seeps

into groundwater, which in turn seeps into a navigable water.

The Fifth Circuit's return to this topic in Needham

reconfirmed the position that SWANCC was a more

meaningful curtailment of Corps jurisdiction than the limited

cases admit. It is here that the split is most obvious, as the

Fifth Circuit in Needham took the Fourth Circuit specifically

to task for its decision in Deaton:

According to the government, the

definition [of "navigable waters" found in 40

C.F.R. § 300.5 (2003)] covers all waters,

excluding groundwater, that have any

hydrological connection with "navigable

water." At least two courts appear to have

agreed with this expansive interpretation.

{citing Deaton and United States v. Rapanos,

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

In our view, this definition is

unsustainable under SWANCC. The CWA

and the OPA are not so broad as to permit the

federal government to impose regulations

over "tributaries" that are neither themselves

navigable nor truly adjacent to navigable

waters. Consequently, in this Circuit the

United States may not simply impose

regulations over puddles, sewers, roadside

ditches and the like; under SWANCC a body

of water is subject to regulation if the body of

water is actually navigable or adjacent to an

open body of navigable water.

Le hee Cichabicied: einski Wa ire ab Bokeh Meds dts

Needham, 2003 WL 22953383, at *3 (emphasis added). The

Fifth Circuit clearly has staked out a position in direct

opposition to that defined in the Fourth.

While the Fifth is at this time the only Circuit to

adopt this position, the District Court of New Jersey in FD &

P Enterprises. Inc. v. United States Army Corps _ of

Engineers, 239 F. Supp. 2d 509 (D.N.J. 2003), ruled in

similar fashion that the decision in SWANCC had

repercussions beyond the elimination of a single regulation.

Rejecting the "migratory molecule" test, the district court

required the Corps to show evidence of “substantial injurious

impact” to a navigable water, thus establishing a "significant

nexus" between the regulated site and a "navigable" water.

Id. at 517. The FD&P court recognized that this was not an

unanimous reading of SWANCC, noting that "[{c]ourts

interpreting the scope of Solid Waste have essentially split

into two camps" on this question. Id. at 513.°

In our view, the rationale most recently articulated by

Needham, Rice, and FD&P reflects the most accurate and

objective interpretation of the SWANCC decision, and

should be adopted by this Court.

6 Other courts throughout the country have recognized this split.

Carabell v. U.S. Army Corps of Eng'rs, 257 F. Supp. 2d 917 (E.D. Mich.

2003); N.C. Shellfish Growers Ass'n v. Holly Ridge Assocs.. LLC, 278

F. Supp. 2d 654 (E.D.N.C. 2003).

Il. The Public Interest is Damaged by This

Continuing Uncertainty.

The split between the circuits has created an

untenable situation. Both the regulators and the regulated

are forced to make plans and perform their duties based upon

estimates and guesswork regarding what the relevant

jurisdictional standard is, in a shifting and confusing legal

landscape. |

A. Due to the Overlap of EPA Districts With

Federal Circuits, the Current Split in the

Circuits Forces Regulators to Apply Disparate

Standards for Different Projects Within their

Authority.

As noted above, the Attorney General has determined

that the EPA is ultimately responsible for jurisdictional

determinations ("JDs") under the CWA, but, in practice,

EPA relies upon the Corps as the primary agency in most

cases for JDs. See note 2, supra. Thus, the current split in

authority has at least one very practical consequence:

regulators in Corps and EPA regional and district offices

must be prepared to apply divergent standards to the subjects

of their jurisdiction, depending on where within the region

the site is located.

a ahi pee ee eee

To take just one example, this chart illustrates the

quandary of the regulators and regulated in EPA Region

Four:

STATE GOVERNING GOVERNING

CIRCUIT DECISION

Alabama. Eleventh n/a

Florida, Georgia

Kentucky, Sixth Rapanos

Tennessee

Mississippi Fifth Harken / Needham

North Carolina, Fourth Deaton

South Carolina

Mississippi lies within the Fifth Judicial Circuit, and

thus must be governed by the limited jurisdiction correctly

described in the Harken and Needham decisions. North and

South Carolina both lie within the Fourth Circuit, and thus

are subject to the more far-reaching jurisdictional grant

represented by the Deaton case. Activities in Tennessee and

Kentucky must be evaluated by the standards of the Sixth

Circuit's decision in Rapanos, which derives largely from

Deaton. Rapanos, 339 F.3d at 452. Alabama, Florida, and

Georgia make up the Eleventh Circuit, which has yet to

specifically address the SWANCC decision.*

7 See Standard Administrative Regions of States and Corresponding

Coast Guard Districts and EPA Regions, 33 C.F.R. Pt. 153 (2003), Subpt.

B, Tbl. 2 (EPA Regions); 28 U.S.C.A. § 41 (2003) (Federal circuits).

8 Further confusion reigns in EPA Region Six, which serves

Louisiana, Arkansas, Oklahoma, New Mexico, Texas, as well as some

Indian lands. Louisiana and Texas lie within the Fifth Judicial Circuit,

and thus must also be governed by Harken and Needham. However, no

district or circuit courts in the Tenth (New Mexico) or the Eighth

(Arkansas) Circuits have specifically addressed the SWANCC decision.

This confusion is exacerbated by the complex

organizational structure of the Corps. The Mississippi

Valley Division of the Corps covers the entire length of the

Mississippi, from Minnesota to Louisiana, and includes six

individual Corps Districts.? As it wanders to the Gulf, the

Mississippi Valley Division encompasses portions of the

Eighth, Seventh, Sixth, and Fifth Federal Circuits: '°

STATE GOVERNING GOVERNING

CIRCUIT DECISION

Minnesota, Eighth n/a

North Dakcta,

South Dakota,

Iowa, Missouri,

Arkansas

Illinois, Seventh Rueth

Wisconsin

Kentucky, Sixth Rapanos

Tennessee ~

Mississippi, Fifth Harken / Needham

Louisiana

Therefore, a single Corps Division encompasses

states governed by the diametrically opposite decisions of

Rapanos and Needham, while also including states governed

by the Rueth decision in the Seventh Circuit, and six states

for whom the Eighth Circuit has provided no guidance at all.

Therefore, it is up to the regulators themselves to

decide which test they will apply to the residents of those

° The included districts are: St. Paul, Rock Island, St. Louis,

Memphis, Vicksburg, and New Orleans.

10 See _http://www.mvd.usace.army.mil/main.php (Mississippi

Valley Division of the Corps); 28 U.S.C.A. § 41 (2003) (Federal

circuits).

states. Each regulator is individually confronted with a

question upon which the United States federal court system

has failed to reach unanimity. Such discretion is utterly

inappropriate. What is more, this discretion has been

enshrined in Corps and EPA policy. In January 2003, the

EPA and the Corps issued a "Joint Memorandum and

Advanced Notice of Proposed Rulemaking (ANPRM)" in an

attempt to provide a clearer interpretation of SWANCC's

meaning. 68 Fed. Reg. 1991-01 (Jan. 15, 2003). However,

in that guidance, the regulators instructed the Corps field

staff to "make jurisdictional and permitting decisions on a

case-by-case basis, considering this guidance, applicable

regulations and any additional relevant court decisions." Id.

In other words, it has therefore devolved to the individual

regulator to determine the reach of Congress's Clean Water

Act jurisdiction.

B. The Rationale In Deaton Will Adversely

Affect Vital Public Projects By Subjecting

Them To The Onerous Individual 404 Permit

Program In Many Cases.

To compound this problem, the Deaton decision has

occurred at a time when the permitting process under the

CWA is becoming increasingly onerous. In March 2000, the

Corps made substantial changes to the “fast track”

Nationwide Permit (“NWP”) progtam under section 404 of

the CWA; phasing out NWP 26 for impacts to isolated or

headwaters areas and substituting it with a number of

activity-specific nationwide permits.’ Under the prior

program, the Amici relied on NWP 26, which permitted

1 See Corps, Final Notice of Issuance and Modification of

Nationwide Permits, 65 Fed. Reg. 12,818 (Mar. 9, 2000). The permits

were reissued, without significant modification in 2002. See Corps,

Final Notice of Issuance of Nationwide Permits, 67 Fed. Reg. 2020 (Jan.

15, 2002).

discharges of up to three acres in certain “isolated” waters or

“headwater” wetlands. However, under the revised program,

there is a maximum one-half (1/2) acre limit for impacts to

“Waters of the United States."

The Deaton rationale will sweep transitional

waterbodies such as drainage ditches, and ephemeral ponds

under the CWA “umbrella."'* Given the size and scope of

most public projects, it will be virtually impossible to come

under the 1/2 acre NWP limit if ephemeral areas are

considered jurisdictional. As a result, Amici’s members will

be denied access to the NWP process and be subject to the

far more onerous and time-consuming individual permit pro-

cess. “s

III. |The EPA and Corps of Engineers have Refused to

Resolve the Current Jurisdictional Confusion.

The judiciary has not been the only branch of

government confronting SWANCC and its progeny since the

Court’s 2001 decision. Following hearings in the House

'2 The Preamble for the NWP regulations state that "an ephemeral

stream is a water of the United States provided it has an ordinary high

water mark (OHWM)." 65 Fed. Reg. 12,818, 12,823 (Mar. 9, 2000). The

practical impact is that any person planning to impact a transitionally wet

area, ranging from small rain depressions to dry washes must first obtain

a 404 permit provided a Corps reviewer finds “water marks" on the

ground that qualify as an OHWM, in his or her subjective judgment.

'S The individual permit process involves a detailed evaluation of

whether a proposed discharge is in the “public interest.” The Corps

considers and balances many factors and must determine that there are no

practicable alternatives to the proposed discharge, see 33 C.F.R. § 322.4

(2003), and must also comply with EPA’s detailed 404(b)(1) guidelines,

see 40 C.F.R. § 230 (2003). This involves individual public notices

allowing for agency and public comment that must be considered before

a permit may be issued. The Corps must prepare detailed findings to

support its permit decision.

Government Operations Committee, the Corps and EPA on

January 15, 2003, issued a Joint Memorandum and ANPRM

in an attempt to provide a clearer interpretation of

SWANCC's meaning. 68 Fed. Reg. 1991. As noted above,

the Memorandum leaves the legal determinations of

jurisdiction to individual members of the agencies' field staff.

Id. at 1998.

The ANPRM resulted in extensive comments for

many affected interests. Over 133,000 comments were

received. Groups issuing comments included four Indian

Tribes, forty-two States, local governments, academic,

research and scientific organizations, industry, non-profits,

and the general public.'* Much of the commentary provided

information and data regarding the ecological value of

various aquatic resources, including isolated wetlands and

intermittent streams. At the other end of the spectrum, many

comments rejected the idea that impact on aquatic resources

is relevant to determining CWA jurisdiction.

Despite this massive outpouring of commentary, in a

press release sent out on December 12, 2003, the EPA and

the Corps made clear that they would take no action to

resolve the confusion sown in the wake of the SWANCC

decision, and would leave the January 2003 Joint

Memorandum to stand unrevised.'° However, that guidance

does very little to clear up the quagmire of nebulous

regulations. By providing no detailed or definitive criteria

'4 Federal Jurisdiction of Navigable Waters Under Clean Waters,

2003 WL 56335158, at 6 (2003) (Statement of G. Tracy Mehan,

Assistant Administrator for Water, U.S. Environmental Protection

Agency).

'S Release available at http://yosemite.epa.gov/opa/admpress.nsf/

blab9f485b098972852562e7004dc686/540f28acf38d7f9b85256dfe007 1

4ab0?OpenDocument.

for field staff, and in fact encouraging field staff to perform

factual and legal comparisons of competing federal circuit

cases on a case-by-case, permit-by-permit basis, Corps and

EPA Headquarters have simply perpetuated the already

intolerable level of confusion in the section 404 program.

CONCLUSION

It does not appear likely that either Congress or the

Agencies will act to resolve the confusion that currently

reigns among the regulated and regulators alike regarding the

jurisdictional extent of the section 404 program in the wake

of SWANCC. The Court should accept this case for review

for two reasons. First, the current jurisdictional conflict

regarding the jurisdictional reach of the CWA must be

resolved. Second, silence by the Court may well amount to a

de facto reversal of much of the holding in SWANCC.

Clarification of these issues is essential to provide certainty

and predictability to the vital public projects that depend

upon clear federal guidance consistent with traditional

authority of state and local governments in regulating land

use.

January 30, 2004 Respectfully submitted