Amicus Curiae Brief — Deaton v. United States

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JAN 3.0 200

No. 03-701 OFFICE OF THE CLERK

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 AMICUS CURIAE OF

YELLOWSTONE DEVELOPMENT LLC

IN SUPPORT OF PETITIONERS

Margaret N. Strand

(Counsel of Record)

John F. Cooney

Tammy W. Klein

Venable, LLP

575 7™ Street, N.W.

Washington, D.C. 20004

(202) 344-4000

Counsel for Amicus Curiae

Yellowstone Development LLC

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE................:cccceeseeestteees 1

SUMMARY OF ARGUMENT. .............::ccccssessesssressnneeeeees 1

I. THE COURTS OF APPEALS ARE IN CONFLICT

OVER THE DEFINITION OF THE

JURISDICTIONAL TERM "WATERS OF THE

UNITED STATES", AND THE POLAR |

INTERPRETATION ADOPTED BY THE FOURTH

CIRCUIT IS NOT SUPPORTED BY A "CLEAR

INDICATION" OF CONGRESSIONAL INTENT....4

A. There Is a Conflict Among the Circuits Concerning the

Application of Section 1362(7) to Inland Waters That

Are Not Navigable in Fact............ er nV Ne re Caen 5

B. The Polar Interpretation Adopted by the Fourth

Circuit Is Not Supported by a "Clear Indication" of

Congressional Intent to Extend Federal Jurisdiction to

the Furthest Reaches Permitted by the Constitution .....7

C. The Fourth Circuit’s Interpretation Raises Significant

Fesuses Of Dit PYOCOGS ..0.000000000.0-evevseesessevoseneevencevsenesenee 9

Il. SOURCE, DURATION AND FLOW OF WATERS

ARE AMONG THE FACTORS WHICH ARE

PERTINENT TO DEFINING "WATERS OF THE

UNITED STATES" AND WHICH ARE IGNORED

IN THE FOURTH CIRCUIT'S STANDARD .......... 11

A. State Definitions Consider Duration and Nature of

Flows for Regulatory PUrPOS€S.......sssscssesseesseesseesees 12

B. The Fourth Circuit's Overly Broad Standard Would

Extend Clean Water Act Jurisdiction to Land

PPI is siciskiceciiediaciataceente tein iS 17

RIFT AMEE so nicrsenisnihiminniiimaianiaabamipngaaslaanauss 20

TABLE OF AUTHORITIES

Cases

Bowen v. Georgetown University Hosp., 488 U.S. 204 (1988)

SESE ioe dek lenisdisiceh in ebichesi evade adeichebuicina dacriansdlbenttenvaieeeiiodirehaaioce 10

a acai iain ira oa au incaaacehascinl beh aicemipipcbiacvaces i

Rice v. Harken Exploration Co., 250 F.3d 264 (5™ Cir. 2000) ..7

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

Corps of Engineers, 531 U.S. 159 (2001) ........ceeeeee passim

United States v. Apex Oil Co., 132 F.3d 1287 (9" Cir. 1997)..10

United States v. Deaton, 332 F.3d 698 (4" Cir. 2003) .........0-0+. 3

United States v. Rapanos, 339 F.3d 447 (6" Cir. 2003)........3, 6

United States v. Riverside Bayview Homes, 474 U.S. 121

I itshetthbedeicbeepetinsinteetocsicivoes htesidaianiaieditay nian iweiaieaes 2,5, 6

United States v. Rueth Development Co., 335 F. 3d 598 (7"

Cir.), cert. denied, 124 S. Ct. 835 (2003)........cccccscssesseseeseees 6

Statutes

Clean Water Act, 33 U.S.C. § 1251 et seq.

Ps Oh eI eons cscisankusoioncisavbsbibonvericnsioncnnel 4, 8,9, 12

Fe es Be BI osenvensosiviiorsrnseoncnesantsvvhsnensevsiisosateneesnes 5, 6

Is We BEER riissircnssncasicsnncicscenvcwemeetenesesnsiues 1, 3, 3,6, 7

NE BP FE Risaicencvevsncsnninsnsnesnnessercvsnnorssevasovonani 4,9, 12

Oil Pollution Act, 33 U.S.C. § 2701 et seq. ........ccssescsesceeeeeces 7

ee 6) re 7

Mont. Code Anno. § 75-5-103(10)(b) (2003)... .ceeeeeeeeees 15

Mont. Code Anno. § 75-5-303 (2003)........c..ccccseccssessesseeeeeeees 15

Regulations

ae ee EP OD avscvcsssnsnnsoeeneveeseeesssrvncivcseerorens 14

Issuance of Nationwide Permits; Notice, 67 Fed. Reg. 2,020

icin as minceriacccaniiontanieaaiociebeeioaas 14

ill

A.A.C. § RUS-11-101(22) (2003) ..cccscccosecsovescovesssveesnesssovsecov: 13

EAP A, ST SOF UG Ga iiivvscssesvcesesvisecsseenssesssasterscnvensavenss 14

EF ke Ci senivsinwisedssrvionennpertanviiiussninasetnne 12

Pa Fe CI iiiivisesiiesiasasepinssvtcessnconiisicsewpssadensnncs 13

I es te isis ies ihiciciciintnsnersirecanvensesitaenicnets 13

MONT. ADMIN. R. 17.30.602(11) (2003).............::cceceeeeeeeee 13

MONT. ADMIN. R.17.24.602(1) (2003)............:ccceeseceesseeees 15

Pie. Hr Fe CI was pentkesicceviseranonenvenevnanciaiacoieioes 15

CEPA. I Pe GEN, en cnsvssnssnrrncssnsevnsnivonvvavetesanesanns 13

WCWR 020-080-001 (b)(xil1) (2003) ..........cccseeecessesescsessseeecs 13

Other Authorities

SI i IY siginvsccicnrpnixertitisncininsnaseancsenioneonnces 17,18

COE GP EVID, misiinivssiccctiseveincinisesonstsctinrereceene 17, 18

Soil Science Society of America, GLOSSARY OF TERMS...17, 19

Hearing on Governors’ Perspectives on the Clean Water Act

Before the House Comm. On Transportation and

Infrastructure, Sub-Comm. On Water Resources &

Environment, 106™ Cong. (Feb. 23, 199) ....seccssessssssesseseeees 16

United States Geological Survey, USGS WATER SCIENCE

CNS Oe Pe iicictniriceisneniinrersinen De a beanimmsemaieens 17

INTEREST OF AMICUS CURIAE

Amicus Curiae Yellowstone Development LLC is involved

in construction and development in the mountainous west.’ It

encounters regulatory issues, and on occasion possible

compliance issues, concerning application of the requirements

of Clean Water Act, as interpreted and applied by the US.

Army Corps of Engineers, with respect to the definition of

“waters of the United States."

This case squarely presents, in an enforcement context,

what constitute "waters of the United States" for water bodies

similar to the type that Yellowstone Development encounters in

its projects — waters that are not adjacent to navigable waters,

but that may flow through channels, for at least part of the year,

that ultimately have a hydrological connection to waters that

are navigable-in-fact.

SUMMARY OF ARGUMENT

This case presents an important and recurring question of

law as to what constitute "waters of the United States" within

the meaning of the Clean Water Act. The issue is of great

practical significance for land development throughout the

country. This question has not been but should be decided by

this Court, and this case presents an appropriate vehicle for its

resolution.

The phrase "waters of the United States", 33 U.S.C. §

1362(7), is the critical jurisdictional term that defines the reach

of the Clean Water Act. The Court has previously considered

' The parties have consented to the filing of this Amicus brief. Pursuant to

Supreme Court Rule 37.6 Amicus states that this brief was not authored or

funded by any person or entity other than Amicus or its counsel.

the meaning of that term in the context of bodies of water that

are at or near the two end points of the continuum of possible

water flows. Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (isolated

ponds, some only seasonal) ("SWANCC"); United States v.

Riverside Bayview Homes, 474 U.S. 121 (1985) (wetlands

abutting a navigable waterway).

This case squarely presents the issue of how the term

"waters of the United States" should be defined in the context

of the vast number of wetlands that are adjacent to putative

water channels that lie between these end points. The Court has

recognized that defining the limits of land and water would not

be simple:

Our common experience tells us that [wetlands

identification] is no easy task: the transition from water

to solid ground is not necessarily or even typically an

abrupt one. Rather, between open waters and dry land

may lie shallows, marshes, mudflats, swamps, bogs in

short, a huge array of areas that are not wholly aquatic

but nevertheless fall far short of being dry land. Where

on this continuum to find the limit of “waters” is far

from obvious.

Riverside Bayview, 474 U.S. at 132. This case presents that

question for resolution.

The courts of appeals are in substantial conflict as to the

principles that, under SWANCC and Riverside Bayview, should

be applied in determining the necessary nexus to navigable

waters inherent in the term "waters of the United States" and

thus the extent to which development issues on lands adjacent

to these flows are governed by. Federal, as opposed to State,

law.” In light of the great practical significance of this issue, the

Court should grant the Petition and resolve the ambiguity that

now creates confusion for developers, State and Federal

regulators, and communities throughout the country as to the

source of law that governs uses of land that are adjacent to

bodies of water that are physically removed from waters that are

navigable-in-fact.

There are several reasons why this case constitutes a

particularly appropriate vehicle through which to resolve this

jurisdictional question. First, the expansive definition of

"waters of the United States" that the U.S. Army Corps of

Engineers utilized in this case was developed in the course of

this enforcement proceeding and had never previously been

adopted through notice and comment rulemaking. Thus, this

case reflects one of the principal problems with the current state

of the law in this area, that regulated entities have great

difficulty in ascertaining what body of law governs their

obligations and their nghts.

Second, the Fourth Circuit adopted an extremely broad

construction of the term "waters of the United States", which

would extend Federal jurisdiction to "any branch of a tributary

system that eventually flows into any navigable body of water."

(Pet. App. 20a (emphasis added)). The court of appeals’

standard would sweep within federal jurisdiction over

"navigable" waters limitless non-navigable flows. There is no

regulatory consensus as to where a tributary system begins or

? Compare United States v. Deaton, 332 F.3d 698, 711 (4* Cir. 2003)

(Federal "jurisdiction extends to any branch of a tributary system that

eventually flows into a navigable body of water", including a roadside ditch)

(Pet. App. 20a), and United States v. Rapanos, 339 F.3d 447, 453 (6" Cir.

2003) (same), with In re Needham, 2003 U.S. App. LEXIS 25318 (5® Cir.

Dec. 16, 2003) (rejecting Federal regulation over roadside ditches on the

ground that, under the interpretation of Section 1362(7) in SWANCC, a body

of water is subject to Federal regulation only if "the body of water is

actually navigable or adjacent to an open body of navigable water."")

oe — id iinadnalsaddnseioteer--ra-so a

when a water flow becomes part of a tnbutary system,

especially in the conditions expenenced in the semi-arid

western mountain States where Amicus operates. While the test

fashioned by the Fourth Circuit might have superficial appeal to

a layman, in practice that standard would be very difficult to

apply.

Finally, the Fourth Circuit's construction of "waters of the

United States" would cut deeply into the responsibilities

traditionally exercised by the States over the regulation of water

flows and the development of land resources that abut those

water flows. States manage their land and water resources by

regularly distinguishing among types of water flows to avoid

imposing water regulation on land features. There is no "clear

indication" in the Clean Water Act that Congress intended an

administrative interpretation at the "outer limits of Congress's

power" that would alter the Federal-State balance in this

manner. SWANCC, 531 U.S. at 172-173. Rather, the Fourth

Circuit ignored express provisions of the statute that sought to

prevent wholesale displacement of the primary State

responsibility over development of land and water resources.

33 U.S.C. §§ 1251(b), 1370(2).

ARGUMENT

I. THE COURTS OF APPEALS ARE IN CONFLICT

OVER THE DEFINITION OF THE JURISDICTIONAL

TERM "WATERS OF THE UNITED STATES", AND

THE POLAR INTERPRETATION ADOPTED BY THE

FOURTH CIRCUIT IS NOT SUPPORTED BY A

"CLEAR INDICATION" OF CONGRESSIONAL

INTENT.

A. There Is a Conflict Among the Circuits Concerning the

Application of Section 1362(7) to Inland Waters That

Are Not Navigable in Fact.

The courts of appeals are in conflict as to the principles that

should be applied in determining whether water flows that are

physically removed by some distance from navigable-in-fact

waters constitute "waters of the United States," within the

meaning of 33 U.S.C. § 1362(/). This conflict creates

confusion and inconsistency as to the extent to which the nghts

and obligations of persons who wish to develop lands adjacent

to these water flows are governed by Federal, as opposed to

State, law.

In United States v. Riverside Bayview Homes, 474 U.S. 121

(1985), the Court held that the Corps of Engineers had

jurisdiction under Section 404(a) of the Act, 33 U.S.C. §

1344(a), over nonnavigable wetlands that actually abutted on a

navigable waterway. The Court found that there was a

significant nexus between these wetlands and navigable waters,

so that the wetlands constituted "waters of the United States"

within the meaning of 33 U.S.C. § 1362(7). The Court

explicitly reserved judgment on the "question of the authority

of the Corps to regulate discharges of fill material into wetlands

that are not adjacent to bodies of open water." Jd. at 131-132.

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

Army Corps of Engineers, 531 U.S. 159 (2001), the Court held

that the Corps of Engineers did not have jurisdiction under

Section 404(a) over isolated ponds in an abandoned sand and

gravel pit, some of which were only seasonal. The Court

emphasized the importance of the term "navigable" in Section

1362(7) and that the use of the phrase "waters of the United

States" did not constitute a basis for reading "navigable" out of

the statute. Jd. at 171-172. The Court also specified that its

decision in Riverside Bayview was based upon the "significant

nexus" between the wetlands and "navigable waters" Jd. at 167.

The Court cautioned that when an administrative interpretation

of a statute invokes the outer limits of Congress’ power, it

expected "a clear indication" that Congress intended that result,

especially when "the administrative interpretation alters the

federal-state framework by permitting federal encroachment

upon a traditional state power." Jd. at 172-173. The Court

found "nothing approaching a clear statement from Congress"

that it intended Section 404(a) to reach the isolated ponds and

concluded that the Clean Water Act had been wnitten to avoid

"the significant constitutional and federalism questions" that

would be raised by the Corps of Engineers’ interpretation. Jd.

at 174.

The courts of appeals disagree as to whether Section

1362(7) should be applied to encompass any non-navigable

water flow that, in a strict hydrological sense, might ultimately

flow into other bodies of water that are navigable, despite the

nature of the flow or its proximity to a navigable body of water.

In this case, the Fourth Circuit held that Federal "jurisdiction

extends to any branch of a tributary system that eventually

flows into a navigable body of water", including a roadside

ditch, and thus to any wetlands that are adjacent to those water

flows. Pet. App. 20a. Similarly, in United States v. Rapanos,

339 F.3d 447, 453 (6" Cir. 2003), the Sixth Circuit overturned a

district court holding, based on SWANCC, that wetlands must

be "directly adjacent to navigable waters" to be subject to

regulation under the Clean Water Act. Instead, it explicitly

adopted the Fourth Circuit's interpretation in Deaton. See also

United States v. Rueth Development Co., 335 F. 3d 598, 604

(7" Cir.), cert. denied, 124 S. Ct. 835 (2003) (relying upon the

Fourth Circuit's holding in Deaton).

By contrast, in In re Needham, 2003 U.S. App. LEXIS

25318 (5"-Cir. Dec. 16, 2003), the Fifth Circuit rejected as

"unsustainable under SWANCC", the Federal government's

argument that the regulatory definition of "navigable waters"

extends to all tributaries of navigable in fact waters, including

ditches, "that have any hydrological connection with ‘navigable

waters." Jd. at 9-10. The court ruled that "in this Circuit . .

under SWANCC, 'a body of water is subject to [Federal]

regulation . . . if 'the body of water is actually navigable or

adjacent to an open body of navigable water." Jd. at *10, citing

Rice v. Harken Exploration Co., 250 F.3d 264, 269 (5™ Cir.

2000).

Needham and Rice arose under the Oil Pollution Act, 33

U.S.C. §§ 2701-2720, rather than under the Clean Water Act.

The OPA imposes strict liability upon parties that discharge oil

into "navigable waters", a term that is defined in 33 U.S.C. §

2701(21) to mean "the waters of the United States, including

the territorial sea." The language of this definitional provision

thus is identical, in pertinent part, to the definition in Section

1362(7) of the Clean Water Act, and the two provisions are co-

extensive. Needham, 2003 U.S. App. LEXIS, at *6.

Accordingly, there is a sufficient conflict to justify granting

the Petition, in view of the great practical importance of the

question.

B. The Polar Interpretation Adopted by the Fourth Circuit

Is Not Supported by a "Clear Indication" of

Congressional Intent to Extend Federal Jurisdiction to

the Furthest Reaches Permitted by the Constitution.

The Fourth Circuit's decision would extend Federal

jurisdiction to "any branch of a tributary system that eventually

flows into any navigable body of water." (Pet. App. 20a)

(emphasis added). Since in a hydrological sense all water flows

downhill, this definition is virtually without limitation in its

own terms. It would drive to the outermost limit of authority

granted the Federal government under the Commerce Clause of

the Constitution. The construction adopted below would

substantially interfere with State authority in the regulation of

water flows, and thus in the regulation of development

activities adjacent to those water flows.

The decision below thus clearly invokes the principle

identified in SWANCC, that a "clear indication" of

Congressional intent is required for an administrative

interpretation at "the outer limits of Congress’ power", which

would "alter the federal-state balance by permitting Federal

encroachment upon a traditional state power." SWANCC, 531

U.S. at 172-173. The Fourth Circuit pointed to nothing in the

language or legislative history of the Clean Water Act that

would suggest that Congress, through its definition of

"navigable waters", intended to sweep within the Federal

regulatory scheme virtually all non-navigable water flows in the

country, whether confined within natural or man-made

channels, and regardless of their flow rate, duration of flow, or

distance from open water.

To the contrary, in adopting the Clean Water Act, Congress

recognized the responsibilities traditionally exercised by the

States over the regulation of water flows and land uses and

intended to preserve State authority, to the extent that

jurisdiction was not otherwise reserved to the Federal

government in the statute. In particular, as the Court noted in

SWANCC, in 33 U.S.C. § 1251(b), Congress chose to

"recognize, preserve, and protect the primary responsibilities

and nghts of the States to prevent, reduce and eliminate

pollution [and] to plan the development and use (including

restoration, preservation, and enhancement) of land and water

resources... ." See SWANCC, 531 U‘S. at 166-167. Further,

in 33 U.S.C. § 1370, Congress explicitly provided:

Except as expressly provided in this chapter [the Clean

Water Act], nothing in this chapter shall . . .

(2) be construed as impairing or in any manner affecting

any right or jurisdiction of the States with respect to

waters (including boundary waters) of such States.

Taken together, Sections 1251(b) and 1370(2) demonstrate

that, in adopting the Clean Water Act, Congress acted with

sensitivity toward traditional State powers and did not intend a

wholesale alteration in the balance of Federal and State

responsibilities for land and water development issues. As in

SWANCC, these statutory provisions, and the failure of the

Corps of Engineers to provide a "clear indication" of an explicit

Congressional intent to authorize the agency to push to the limit

of Federal constitutional power, create substantial grounds for

doubting the validity of the maximalist interpretation of Section

1362(7) adopted by the court of appeals.

Since the Fourth Circuit's interpretation has subsequently

been adopted by at least one other Circuit, the Court should

grant the Petition in this case at this time, to resolve this

important question concerning the respective jurisdictions of

the State and Federal governments.

C. The Fourth Circuit’s Interpretation Raises Significant

Issues of Due Process.

The Petition also should be granted to assure that due

process concerns are addressed. The definition of "waters of

the United States" that the Corps of Engineers advocated in this

case was developed and applied in the course of an

enforcement proceeding. That expansive definition had not

previously been adopted by the agency through notice and

comment rulemaking. The landowners therefore did not have

formal notice of the great breadth with which the agency would

seek to interpret the term. Indeed, to the extent that the Corps

of Engineers previously had addressed the issue in preambles to

its rules, the agency had adopted a much narrower

interpretation of the term as applied to ditches that are far

removed from open waters or waters that are navigable-in-fact.

See Pet. at 4n.3.

Since the Clean Water Act may be enforced criminally as

well as civilly, the agency's failure to provide notice of the

extreme reach it claims for the statute presents significant due

process concerns. See Bowen v. Georgetown University Hosp.,

488 U.S. 204 (1988) (rejecting agency litigation position

unsupported by regulations, rulings, or administrative practice);

United States v. Apex Oil Co., 132 F.3d 1287 (9" Cir. 1997)

(rule of lenity applied where definitional section of regulation

was ambiguous).

The due process concerns reinforce the conclusion that it 1s

unlikely that Congress intended the term "navigable waters" to

carry the far reaching meaning adopted by the Fourth Circuit.

If there was any support in the Clean Water Act for the lower

court's extension of Federal authority, due process concerns

would require, at a minimum, that regulated parties be provided

clear, adequate notice of the position. The lower court's

decision fails to give proper weight to these Constitutional

concems.

ll. SOURCE, DURATION AND FLOW OF WATERS

ARE AMONG THE FACTORS THAT ARE

PERTINENT TO DEFINING "WATERS OF THE

UNITED STATES" AND IGNORED IN THE FOURTH

CIRCUIT'S STANDARD.

In allowing Federal authority over any water that "might

ultimately flow" to navigable water, the Fourth Circuit failed to

consider the varied physical circumstances of non-navigable

water flow. In contrast, the States, which have the most

immediate knowledge of the geographic, hydrologic, climatic

and geomorphologic conditions within their jurisdictions,

routinely consider the nature and duration of water flows in

deciding whether and how to regulate water flows and land

uses. The lower court's standard would create conflicts with

State laws by extending Federal authority of low, infrequent

non-navigable flows.

The simple hydrologic nexus test adopted by the Fourth

Circuit also ignores the need to define when a tributary system

begins or when a water flow becomes part of a tnbutary

system, especially in the conditions that apply in the semi-arid

western States in which Amicus does business. There is no

Federal definition of "tributary." It is often not possible for a

person to know when a water flow enters a tributary and thus

when, under the Fourth Circuit standard, Federal regulation of

the "water body" would begin and state management of the

land resources end.

There are multiple examples of extant definitions

addressing geographic features that could be part of a tibutary

system or could constitute the point at which a water body

commences. Review of even a few definitions shows that the

Fourth Circuit's standard ignores significant technical and

policy concerns that are critical to deciding the limits of Federal

jurisdiction under the Clean Water Act.

A. State Definitions Consider Duration and Nature of

Flows for Regulatory Purposes.

The Clean Water Act's "federal-state balance", SWANCC,

531 U.S. at 172-173, reflects, in part, the recognition that the

States have the most immediate knowledge of geographic,

hydrologic and geomorphological conditions within their

jurisdictions. The statute specifically protects the States'

authority to establish management choices for their "land and

water resources," 33 U.S.C. §§ 1251(b), 1370(2). States

routinely consider features of duration and water source in

defining their waters and in establishing regulatory standards.

An over-simplified hydrologic standard — can water flow? — is

not a sufficient way to distinguish between a land feature and a

water feature. The lower court's decision warrants review to

avoid unnecessary conflicts between State enactments and a

Federal jurisdictional standard "at the outer limits" of

Congressional authority.

Defining the point in the landscape where land ends and a

water body begins involves technical and policy considerations.

The States are keenly aware of the importance of identifying

where a water system commences. Many States use definitions

that distinguish among ephemeral, intermittent and perennial

waters, addressing duration or source of the flow. Examples of

such distinguishing definitions from mountain States include

laws in Idaho’, Arizona,’ Montana” ; Utah®, and Wyoming’.

> Idaho defines intermittent waters as “a stream, reach, or water body which

has a period of zero (0) flow for at least one (1) week during most years.

Where flow records are available, a stream with a...hydrologically-based

flow of less than one-tenth (0.1) cfs is considered intermittent.” IDAPA

58.01.02.003 (2003). The State defines an ephemeral water as “a stream,

By contrast, neither Congress nor the Federal agencies have

promulgated a definition of "tributary" or "tributary system," or

reach, or water body that flows only in direct response to precipitation in the

immediate watershed and whose channel is at all times above the water

table.” IDAPA 58.01.01.260 (2003). Water quality standards apply to

intermittent waters “during optimum flow periods sufficient to support the

uses for which the water body is designated,” and variances are allowed

when “natural, intermittent, or low flow conditions or water levels prevent

the attainment of the standard. IDAPA 58.01.02.070 (2003); IDAPA

58.01.02.260 (2003).

4 Arizona defines an ephemeral water as “a surface water that has a channel

that is at all times above the water table, and that flows only in direct

response to precipitation.” A.A.C. § Rl 8-11-101(22) (2003). An intermittent

surface water is a “stream or reach of a stream that flows continuously only

at certain times of the year, as when it receives water from a spring or from

another surface source, such as melting snow.” Jd. at (30).

5 Montana defines an ephemeral stream as “a stream or part of a stream

which flows only in direct response to precipitation in the immediate

watershed or in response to the melting of a cover of snow and ice and whose

channel bottom is always above the local water table." MONT. ADMIN. R.

17.30.602(11) (2003). An intermittent stream is a “stream or reach of a

stream that is below the local water table for at least some part of the year,

and obtains its flow from both surface run-off and groundwater discharge. Jd.

at (15).

° Utah defines ephemeral streams as those that flow “only in direct response

to precipitation in the immediate watershed, or in response to the melting of a

cover of snow and ice, and which has a channel bottoms that is always above

the local water table.” U.A.C. R645-100-200 (2002). Intermittent streams

include those streams, or their reaches, that “drains a watershed of at least

one square mile” or is “below the local water table for at least some part of

the year and obtains its flow from both surface runoff and groundwater

discharge." Id.

” Wyoming defines an “ephemeral stream” as “a stream which flows only in

direct response to a single precipitation [sic] in the immediate watershed or in

response to a single snow melt event, and which has a channel bottom that is

always above the prevailing water table." WCWR 020-080-001(b)(xiii)

(2003). An “intermittent stream” is “a stream or part of a stream where the

channel bottom is above the local water table for part of the year, but is not a

perennial stream." Jd. at (b)(xxiv). A “perennial stream” is “a stream or part

of a stream that flows continually during all of the calendar year as the result

of groundwater discharge or surface runoff.” Jd. at (b)(xxxvi).

of the different types of water bodies that can occur within a

tributary system, for purposes of determining Clean Water Act

jurisdiction.’ Rather, Federal regulations defining "waters of

the United States" fail to clearly establish a sound relationship

between some water flowing over land and "navigable waters."

The different classifications of streams used by the States

lead to different regulatory consequences. For example, Idaho

regulates work in and alterations to stream channels,’ only in

“natural water course[s] of perceptible extent with definite bed

and banks which confine and conducts continuously flowing

water.”"° Continuously flowing water is defined as “[a]

sufficient flow of water that could provide for migration and

movement of fish, and excludes those reaches of streams

® There are no federal definitions of "ephemeral," "intermittent," and

"perennial" waters other than those that were included within the Corps of

Engineers’ nationwide permits, as certain terms of the nationwide permits did

not apply to ephemeral waters. See Issuance of Nationwide Permits; Notice,

67 Fed. Reg. 2,020, 2,094 (Jan. 15, 2002) (joint notice by EPA and Corps of

Engineers). For these purposes, an ephemeral stream is defined as :

“ha[ving] flowing water only during and for a short duration after,

precipitation events in a typical year. Ephemeral stream beds are located

above the water table year-round. Groundwater is not a source of water for

the stream. Runoff from rainfall is the primary source of water for stream

flow.” Intermittent streams have “flowing water during certain times of the

year, when groundwater provides water for stream flow. During dry periods,

intermittent streams may not have flowing water. Runoff from rainfall is a

supplemental source of water for streazi flow.” These definitions do not

apply to other Clean Water Act programs. The Corps of Engineers’

regulation defining "waters of the United States" includes only "intermittent"

streams. 33 C.F.R. § 328.3(a)(3). However, the United States has not

disclaimed jurisdiction over "ephemeral" waters as well. See, e.g., 67 Fed.

Reg. at 2,075 ("...we are not suggesting that ephemeral streams are not

jurisdictional waters under the Clean Water Act.")

* IDAPA 37.03.07.010 (2003).

'° Td.

which, in their natural state, normally go dry at the location of

the proposed alteration.”

In Utah, "ephemeral" and "intermittent" streams are treated

differently with respect to coal mining and stream diversions.

Montana’s coal mining statute offers distinctions between

"ephemeral drainageways” and “intermittent streams” in a

manner similar to Utah. Land within 100 feet of a perennial or

intermittent stream or reach may not be disturbed by mining

operations except as approved by State regulators. ° In

addition, Montana has expressly determined that certain low

flow waters should not be subject to certain water quality

regulations. This occurs under Montana’s water quality statute

which includes a policy of nondegradation of “high quality

waters.”!* Excluded from the category of high quality waters

are those “surface waters that . . . have zero flow or surface

expression for more than 270 days during most years.”

The Westen Govermnor’s Association position on Clean

Water Act programs emphasizes the need for giving States

flexibility to manage land and water resources.

' Td.

'2 Among the regulatory distinctions, land within 100 feet of a perennial or

intermittent stream may not be disturbed by mining operations unless

specifically approved by the state See generally U.A.C. R645-301-700

(2002) (stream diversions).

'3 MONT. ADMIN. R.17.24.602(1) (2003). Ephemeral drainageways flow

“only in response to precipitation in the immediate watershed or in response

to the melting snow or ice and is always above the local watertable.”

Intermittent streams are those that are “below the water table for at least

some part of the year and that obtains its flow from both ground water

discharge and surface runoff.”

'4 Mont. Code Anno. § 75-5-303 (2003).

'5 Mont. Code Anno. § 75-5-103(10)(b) (2003).

Much of our region is characterized by unique

physical, chemical, hydrologic, and _ biological

conditions and contains countless ephemeral streams,

effluent-dependent streams, and man-made water

conveyance systems. These streams flow only in

response to sporadic precipitation, snowmelt, runoff,

wastewater discharges, or the conveyance of water or

reclaimed water intended for specific purposes.

Western Governors urge your committee in reviewing

the CWA, to take into account this environment.

Watershed management should not be dictated by the

federal government. Watersheds should be managed

to meet people's needs while protecting our

environmental resources. Federal methodology

mandates are by definition "one size fits all" and are

not appropriate for each and every state. Outcomes are

more important to us than processes.'°

Amicus does not suggest that any particular State approach

is mandated by the Clean Water Act. States may have varied

technical and policy reasons for adopting particular definitions

of different water features and setting regulatory consequences

that flow from the definitions. However, the Clean Water Act

clearly preserved the authority of the States to regulate their

land and water resources in this manner. Amicus submits that

the Fourth Circuit's standard ignores the important physical and

policy factors that the States have wrestled with and adopts a

categorical test that would intrude on these State powers. That

the States have routinely considered factors ignored by the

House Comm. On Transportation and Infrastructure, Sub-Comm. On Water

Resources & Environment, 106" Cong. (Feb. 23, 199) (statement of Wyoming

Governor Jim Geringer) available at http://www.westgov.org/wga/testuim/cwa-

wy.htm.

Fourth Circuit — such as duration and nature of flow — in

defining their waters underscores the importance of the Petition

and casts doubt upon the validity of the overly simplistic

standard adopted below. Regulated parties like the Amicus

suffer under the current legal atmosphere in which there is great

disparity between Federal and State definitions of water and

confusion over the soundness of the differing Federal and State

approaches.

B. The Fourth Circuit's Broad Standard Would Extend

Clean Water Act Jurisdiction to Land Features.

The Fourth Circuit's interpretation also ignores important

lessons to be drawn from the varied technical vocabulary used

to describe the point where land stops and water begins. The

lower court apparently assumed, without supporting authority,

that the start of a tributary system could be easily discerned, in

deciding that a simple hydrological measure would provide a

sufficient nexus to navigable waters to support Federal

jurisdiction. However, between rainfall and snow melt

traversing land and a traditionally navigable water, flow may

occur in many different geographic features. Not only are these

flows non-navigable, but there is no consensus on the point

where such flow becomes part of a tributary system to a

navigable water. Absent clear definitions, the Fourth Circuit's

interpretation could extend Federal jurisdiction to many

features commonly viewed as land.

A few examples illustrate this point. "Sheet flow" or "run

off" are different terms frequently used to describe water before

it becomes part of a stream or tributary system.'’ However, the

"7 See GLOSSARY OF GEOLOGY 560, 587 (Julia Jackson ed., 1997) (Sheet

flow is an “overland flow or downslope movement of water taking the form

of a thin, continuous film over relatively smooth soil or rock surfaces and not

concentrated into channels larger than rills.”); Shuh-shiaw Lo, GLOSSARY OF

aaeiaiaiieniaiaiaaliiaiaal

commonly-used, authoritative definitions do not readily

identify the point of origin of a tributary system. There are

many other common terms used to describe the small,

frequently temporary, shallow features over which or through

which water may flow before it becomes a "tributary." These

include terms such as mills, gullies, erosion gullies, ephemeral

gullies and ephemeral streams. It is far from clear where,

among these various features, a tributary system begins and

land ends.

For example, mills are defined as “{a] microchannel (usually

a few inches deep) in which water concentrates as it runs

downslope,” “{a] rivulet,” “{a] very small brook or stream,”

“{a] rill channel” which is also known as a “shoestring rill.””®

Gullies are channels “deeply eroded by water which usually

flows only due to storm water runoff or during the melting of

snow. A gully is smaller than a ravine, larger than a mill... aed

Erosion gullies are created due to “erosion of soil or soft rock

material by running water that forms distinct, narrow channels

that are larger and deeper than mills and that usually carry water

HYDROLOGY 1275, 1344 (Sheng Te Printers Ltd. 1992) (noting unchanneled

nature of sheet flow and run off); GLOSSARY OF TERMS, Soil Science Society

of America available at http://www.soils.org/sssagloss/search.html (noting

unchanneled nature of sheet flow and run off); United States Geological

Survey, USGS WATER SCIENCE GLOSSARY OF TERMS available at

http://ga.water.usgs.gov/edu/dictionary.html: (“(1) That part of the

precipitation, snow melt, or umgation water that appears in uncontrolled

surface streams, rivers, drains or sewers. Runoff may be classified according

to speed of appearance after rainfall or melting snow as direct runoff or base

runoff, and according to source as surface runoff, storm interflow, or ground-

water runoff. (2) The total discharge described in (1), above, during a

specified period of time. (3) Also defined as the depth to which a drainage

area would be covered if all of the runoff for a given period of time were

uniformly distributed over it.”).

'§ See GLOSSARY OF HYDROLOGY 1249; see also GLOSSARY OF GEOLOGY

550.

'? GLOSSARY OF HYDROLOGY 457; see also GLOSSARY OF GEOLOGY 211.

only during and immediately after heavy rains or following the

melting of ice and snow.” Ephemeral gullies are “small

channels eroded by concentrated flow that can be easily filled

by normal tillage, only to reform again in the same located by

additional runoff events.””!

Persons like the Amicus, operating in semi-arid mountain

terrain, live and work in locations with highly varied seasonal

water flow on their property. During snow melt or storm

events, water flows downhill over land and land features that

arguably meet the definitions of rills, gullies, erosion gullies,

ephemeral gullies or ephemeral streams. As a practical matter,

those land feature over which the water may flow would be

considered land, not water, under common understanding and

for most purposes under State and local law. Yet under the

jurisdictional standard adopted by the court below, because

water could eventually flow from these features to navigable

waters, all would be Federally regulated as a putative tributary

system.

Before Federal jurisdiction over "navigable waters" is

extended to these kinds of land features, there should be a clear

indication of Congressional intent. At a minimum, the Federal

agencies should be required to clarify through rulemaking — and

notify landowners and the States — how far they think the Clean

Water Act extends Federal jurisdiction over water flow over

land, rather than arguing for sweeping extensions of Federal

jurisdiction on a case by case basis in enforcement actions.

Under the lower court's approach, Federal jurisdiction

arises wherever flow occurs, regardless of distance to navigable

waters, duration of flow at the putative "starting point", source

20 GLOSSARY OF HYDROLOGY 635.

21 See GLOSSARY OF TERMS, Soil Science Society of America available at

http://www.soils.org/sssagloss/search. html.

of the water, or nature of the putative feature transmitting the

water. Between the extremes previously addressed by this

Court — adjacent to navigable waters and fully isolated from

any other waters — water may flow in a manner and over a

course that would not, under many State laws or common

understanding, be part of a "tributary system." These important

issues presented by the lower court's decision warrant review

by this Court.

CONCLUSION

Amicus respectfully requests that the Court grant the

Petition for a Wnt of Certiorari.

Respectfully submitted,