Amicus Curiae Brief — Deaton v. United States

"Supreme Court, U.S.

FILED

10 / JAN 30 2004

OFFICE OF THE CLERK

No. 03-701

In The

Supreme Court of the United States

JAMES S. and REBECCA DEATON, Petitioners,

Vv.

UNITED STATES OF AMERICA, Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

AMERICAN PETROLEUM INSTITUTE IN SUPPORT

OF THE PETITIONERS

Thomas Sayre Llewellyn* Harry Ng

5125 MacArthur Blvd., NW Ralph J. Colleli Jr.

Suite 32A Erik Milito

Washington, DC 20016 American Petroleum

(202) 237-7291 Institute

1220 L Street, NW

Washington, DC 20005

(202) 682-8000

Counsel for Amicus Curiae

* Counsel of Record

i

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE.....-..+-+:+0eeeeeeee es 1

REASONS FOR GRANTING THE WRIT......--...--+222 2

I. THE FOURTH CIRCUIT FAILED TO

FOLLOW SWANCC........:0ceceeeeeeeeeeeeseeeneeaeneres >

A. The Fourth Circuit Allowed

CWA Regulation Of Areas That

Are Neither Navigable-In-Fact

Waters Nor Adjacent To Such Waters....... >

B. The Fourth Circuit Allowed CWA

Regulation Of Areas Lacking Even A

“Significant Nexus” To Any

‘Navigable-In-Fact Water........---.-+--+++++++ 7

II. THE SCOPE OF THE CLEAN WATER

ACT IS AN ISSUE OF GREAT

NATIONAL IMPORTANCE. .......-2:0:00:eeeeeeeeee 10

A. The Fourth Circuit's Decision Will Have

Broad Effects On The Implementation

Of The Clean Water ACt............2:eeeeeeeeee 10

B. The Conflict Between The Fourth And

Fifth Circuits Creates Substantial

Confusion And Uncertainty For The

Regulated Community.........--:.s1eessss0 12

C. — The Fourth Circuit’s Decision Poses

Significant Economic Consequences

For The Regulated Community............ 14

CONCLUSION ...........ccscceeceeccnceeceenesececnsensaceeeees 15

il

TABLE OF AUTHORITIES

CASES

Chevron U.S.A. Inc. v. NRDC,

467 US. G37 (ITGE).....0:ncnrncniscorsrpecnuntcemnssamvenne 7

FD&P Enterprises Inc. v. United States Army

Corps of Eng’rs,

239 F Supp.2d S09 (DN J. DOGS). 2ccrersevscesesanesess 8

Rice v. Harken Exploration Co.,

250 F.3d 2O6 (FP Ce, FI pvc ncsncnsmiennsincnsons 10, 12

Solid Waste Agency of N. Cook County v.

United States Army Corps of Eng’rs,

SST U.S. TP Ca hiiconescivensenniseerenneeess 1-9, 11-15

Treacy v. Newdunn Associates, LLP,

SOA Fk GOT 60 Cie. es ccc snctnndncntnvtnninvann 12

United States v. Deaton,

S52 F.3d GIG (0 Cie, FD. cn scincsisvnsvnesisnonns 1-3, 7-15

United States v. Needham.

No. 02-30217, 2003 WL 22953383,

(5 Cie. BIRD soncacectcnenciepatermaaan amet eae iZ

United States v. Rapanos,

S39 Fk OOF GO Ce, Fs aiessenccinenistaaename 11

United States v. Riverside Bayview Homes,

474 US. TEE Ties « cdivncnnivederweprpns eee 5-6, 8

United States v. Rueth Development Co.,

335 F.3d SIG (PF? Cir, Bi vnterevnvnccesioxspenndenenn 11

5 a a aa este apart sasvesscopecacd

lil

STATUTES

ke), 10

ag, : ee 10

Re, BONN oo vs civsesensessesscnscvernens 1, 3, 6, 10

MN oe ck eaindevnvieeiveinecersedecorsecicns 3

LEGISLATIVE HISTORY

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. (1972)..........4

REGULATIONS

33 CFR § 209.120(d)(1) (1974).......cecccecescceccecseecececeeeee 4

33 CFR § 209.260(e)(1) (1974).......eccccececcecccecesececececeee. 4

40 CFR § 110.1............ NRE yee i AS, 10

Roo cdinascnvevyarcasennvevsissiasscrecsbeccee. 10

1 a ee ee 10

ce 10

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8. ae 10

8k 10

——_—$_——

a i i sc 0 pees omemrorsneray came

PRUs FINE See PID. Biase ve sicsesenesiscvcsstesnnhivsonsegrencins 10

WE ee Es soak base vacdesscenscicsresivntoeeepesineapeeeaies 10

ee Rian icc ensnensescravecsinencanirpmccesenepteemnin 10

FEDERAL REGISTER NOTICES

Advance Notice of Proposed Rulemaking

on the Clean Water Act Regulatory

Definition of “Waters of the United States,”

68 Fed. Reg. 1991 (Jan. 15, 2003)............. 10, 13-14

LEGAL PERIODICALS

Albrecht and Nickelsburg,

Could SWANCC Be Right?

A New Look At The Legislative History

Of The Clean Water Act,

on Ravel. L.. Rew. TIGGZ (RZ). wc svesiscnscsvevenscoses >

1

The American Petroleum Institute (“API”)

respectfully files this brief amicus curiae in support of

petitioners James and Rebecca Deaton in Case No. 03-

701.1 The petition seeks review of the judgment of the

United States Court of Appeals for the Fourth Circuit that

the Army Corps of Engineers (“Corps”) had the authority

under Section 404(a) of the Clean Water Act (“CWA”), 33

U.S.C. § 1344(a), to regulate a roadside ditch abutting

petitioners’ property in Wicomico County, Maryland, and

wetlands located on the petitioners’ property. United

States v. Deaton, 332 F.3d 698 (4th Cir. 2003). Neither the

roadside ditch nor the wetlands are adjacent to any

navigable water body. Amicus believes that the Fourth

Circuit misconstrued the Act, in light of this Court's

decision in Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng’rs, 531 US. 159 (2001)

("SWANCC"').

INTEREST OF THE AMICUS CURIAE

API is a non-profit, nationwide trade association

representing more than 400 member companies engaged

in all aspects of the petroleum and natural gas industry.

Among other things, it is API’s objective to promote the

interests of the petroleum and natural gas industry in all

of its branches. API regularly represents the petroleum

and natural gas industry in administrative rulemaking

1 No counsel for any party has authored this brief in whole

or in part. No entities other than API and its members have made

monetary contributions to the preparation and submission of this

brief. In addition, written consent has been obtained from counsel

for all petitioners and the respondent for the filing of this brief

pursuant to Supreme Court Rule 37. The letters reflecting consent

have been filed with the Clerk’s Office.

———————————— lh lr.

a ara en

2

proceedings in the various state and federal agencies, and

in litigation in the state and federal courts.

The petroleum and natural gas industry consists of

various types of facilities that are widely dispersed

throughout the nation, including tens of thousands of

production wells, more than 100 refineries, more than

1,000 terminals, more than 5,000 bulk storage plants, and

more than 100,000 service stations. While many of those

facilities are located near navigable waters or adjacent

wetlands, many others are distant from any navigable

waters or adjacent wetlands, but could still be subject to

CWA regulation under the Fourth Circuit's decision. API

shares the concern of the petitioners that the

implementation of the CWA conform to the clear intent of

Congress.

REASONS FOR GRANTING THE WRIT

The Fourth Circuit misread this Court's decision in

SWANCC and thus failed to apply the intent of Congress

in enacting the CWA. The Fourth Circuit decision

potentially affects the entire system of programs under

the CWA, creates a conflict with the Fifth Circuit over the

scope of the CWA, and will result in significant,

unjustified economic burdens for American industry. For

these reasons and the reasons set forth in the petition, the

Court should grant the writ.

I. THE FOURTH CIRCUIT FAILED TO FOLLOW

SWANCC.

A. The Fourth Circuit Allowed CWA

Regulation Of Areas That Are Neither

Navigable-In-Fact Waters Nor Adjacent

To Such Waters.

In Deaton, the Fourth Circuit ignored the

overriding import of the SWANCC decision. In

SWANCC, this Court struck down the “Migratory Bird

Rule” as exceeding the Corps’ authority under the CWA.

In reaching its decision in SWANCC, this Court found

that Congress clearly intended to limit the application of

the CWA to navigable-in-fact waters or "traditional

navigable waters,” and wetlands adjacent to such waters.

The Fourth Circuit thus erred in finding the CWA

"sufficiently ambiguous" to require judicial deference to

the Corps' assertion of authority over a roadside drainage

ditch and wetland far removed from any traditional

navigable waters.

In SWANCC, this Court found Ҥ 404(a) [of the

CWA] to be clear.” SWANCC, 531 US. at 172. Section

404(a) authorizes the Corps to regulate discharges of

dredged or fill material into "navigable waters," which

| are defined as "the waters of the United States, including

the territorial seas," 33 U.S.C. § 1362(7). What this Court

| expressly said was clear about section 404(a) is that it was

| not intended to regulate nonnavigable, isolated, intrastate

waters, such as the abandoned gravel pit at issue in

SWANCC.

tt CUCPitiK.

egress

4

This Court reached its express conclusion as

follows. First, the Court pointed out that in 1974, the

Corps originally interpreted the term "navigable waters"

to mean “those waters of the United States which are

subject to the ebb and flow of the tide, and/or are

presently, or have been in the past, or may be in the

future susceptible for use for purposes of interstate or

foreign commerce,” 33 CFR § 209.120(d)(1) (1974). Id. at

168. Such waters are often referred to as "navigable-in-

fact waters" or "traditional navigable waters." The Court

highlighted the Corps’ position in 1974 that “it is the

water body’s capability of use by the public for purposes

of transportation or commerce which is the determinative

factor,” 33 CFR § 209.260(e)(1) (1974). Id.

The Court then said that the respondents “put

forward no persuasive evidence that the Corps mistook

Congress’ intent in 1974.” Id. In other words, as of the

1972 version of the CWA, "navigable waters" meant

traditional navigable waters.

Advocates of an expansive construction of the

CWA, including the Corps in SWWANCC, often point to a

statement in the 1972 Conference Report that the

conferees "intend that the term ‘navigable waters' be

given the broadest possible constitutional interpretation,"

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972).

Yet this Court found, quite to the contrary, that "neither

this, nor anything else in the legislative history to which

[the Corps} point[s], signifies that Congress intended to

5

exert anything more than its commerce power over

navigation.” 531 U.S. at 168 n.3.2

Having found the intent of the 1972 Act to be

clear, the Court next considered whether Congress took a

new direction in the 1977 amendments. Id. at 168-71. It

found that Congress did not take such a new direction.

The Corps had argued that in the 1977

amendments, Congress had _ broadly approved new

regulations of the Corps that asserted CWA authority

over waters and wetlands, without any consideration of

navigability. See id. at 168-69. The Court found

insufficient evidence of any such approval. Id. at 170.

The Court found that the only aspect of the Corps’ 1977

regulations. that Congress had approved was the

assertion of authority over wetlands adjacent to traditional

navigable waters.

Wetlands adjacent to traditional navigable waters

constitute a special case that the Court had addressed

earlier in United States v. Riverside Bayview Homes, 474 U.S.

121 (1985). Indeed, in SWANCC, the Court was careful to

dispel any notion that its earlier ruling in Riverside

Bayview Homes should be construed to extend federal

authority to anything other than wetlands adjacent to

2 Unstated in the Court's opinion in SWANCC is that before

1972, in implementing the Rivers and Harbors Act, the Corps had

adopted a cramped view even of traditional navigable waters, as

described in modern federal case law. See Albrecht and

Nickelsburg, Could SWANCC Be Right? A New Look At The

Legislative History Of The Clean Water Act, 32 Envtl. L. Rep. 11042,

11044-46 (2002). Thus, in enacting the CWA in 1972, Congress

apparently wanted to ensure that the Corps would exercise its full

constitutional power over navigation. Id. at 11048-49.

6

navigable-in-fact waters, or as the Court put it, “adjacent

to bodies of open water.” 531 U.S. at 167.

Although in Riverside Bayview Homes the Court

had suggested that the term “navigable” in the CWA was

of “limited import,” 474 U.S. at 133, in SWANCC the

Court emphasized the continued importance of the term

“navigable”:

[I]t is one thing to give a word limited

effect and quite another to give it no effect

whatever. The term “navigable” has at

least the import of showing us what

Congress had in mind as its authority for

enacting the CWA: its _ traditional

jurisdiction over waters that were or had

been navigable in fact or which could

reasonably be so made.

531 U.S. at 172. In order to rule for the respondents in

SWANCC, the Court said that it “would have to hold that

the jurisdiction of the Corps extends to ponds that are not

adjacent to open bodies of water.” Id. at 168. However,

the Court concluded that “the text of the statute will not

allow this.” Id.

Thus, to reach its express conclusion that section

404(a) was not intended to regulate nonnavigable,

isolated, intrastate waters, such as the abandoned gravel

pit at issue in SVVANCC, the Court found that the 1972

Act clearly applied only to traditional navigable waters,

and that Congress did not fundamentally change this in

the 1977 amendments, although Congress did specifically

authorize regulation of wetlands adjacent to traditional

navigable waters in 1977. In other words, the Court found

7

clear Congress’ intent to limit the scope of the CWA to

traditional navigable waters and wetlands adjacent to

traditional navigable waters.

Nonetheless, the Fourth Circuit in Deaton found

the statute to be “ambiguous.” Deaton, 332 F.3d at 709-11.

It said that the Corps’ 1974 definition, which was limited

to traditional navigable waters, only “captured what

SWANCC holds to be Congress's general intent in enacting

the CWA.” Id. at 711 (emphasis added). Accordingly, the

Fourth Circuit deferred to the Corps’ assertion of

authority over the roadside ditch and the nearby wetland,

under the second step of the Chevron? analysis.

The Fourth Circuit thus erred. It ignored the

reasoning of this Court in SWVANCC that the statute is

clear, and that the statute only applies to traditional

navigable waters and adjacent wetlands. As a result, it

erroneously permitted the Corps to regulate a drainage

ditch and a wetland, neither of which is a traditional

navigable water or even adjacent to a traditional

navigable water.

B. The Fourth Circuit Allowed CWA

Regulation Of Areas Lacking Even A

“Significant Nexus” To Any Navigable-

In-Fact Water.

The Fourth Circuit stated that “[t]he precise

question here is whether the Clean Water Act extends to

distant, nonnavigable tributaries of navigable waters.”

332 F.3d at 709. This is not only the heart of the issue in

this case, but also in many of the other cases being

3 Chevron U.S.A. Inc. v. NRDC, 467 US. 837 (1984).

8

decided by the various lower federal courts, which are

reaching varying conclusions.

Following SWANCC, some _ courts and

commentators have concluded that there must at least be

a “significant nexus” between a nonnavigable water body

or wetland and a traditional navigable water in order to

support CWA jurisdiction. See, e.g., FD&P Enterprises Inc.

v. United States Army Corps of Eng’rs, 239 F.Supp.2d 509,

516 (D.N.J. 2003). This is based on the Court's

explanation in SWANNC that “[iJt was the significant

nexus between the wetlands and ‘navigable waters’ that

informed our reading of the CWA in Riverside Bayview

Homes.” 531 U.S. at 167.

The Fourth Circuit itself recognized this principle,

but then failed to apply it. It literally ignored the word

“significant”:

In Riverside Bayview the Supreme Court

concluded that the Corps regulation

extending jurisdiction to adjacent wetlands

was a reasonable interpretation in part

because of what SWANCC described as

“the significant mexus between the

wetlands and ‘navigable waters.’”

There is also a nexus between a navigable

waterway and its nonnavigable tributaries.

332 F.3d at 712 (emphasis added). Elsewhere, the Fourth

Circuit characterized SVVANCC as “suggesting that

covered nonnavigable waters are those with some

connection to navigable ones.” Id. at 709 (emphasis

added). Thus, the Fourth Circuit reduced a “significant”

“ow

nexus to merely “a” nexus or “some connection.”

However, it is clear from SWWANCC that “a” nexus

or “some connection” is not sufficient. At the very least,

SWANCC established that there must be a “significant

nexus” with a navigable-in-fact water in order to confer

CWA jurisdiction over a _ distant, nonnavigable

“tributary,” such as the drainage ditch in this case.

Nor is this merely a matter of semantics.

Although the Fourth Circuit found that there was some

evidence that discharges into nonnavigable tributaries can

have substantial effects on the quality of navigable waters,

332 F.3d at 712, there was no specific evidence of such

effects of the ditch or “tributary” at issue in the case, see

Petition for Writ of Certiorari, Deaton v. United States, No.

03 - 701, at 7-8 (November 10, 2003). Surely, some

nonnavigable ‘tributaries have a significant nexus with

navigable water, but this is a far cry from the conclusion

that any nonnavigable tributary has such a significant

nexus.

When it ultimately upheld the Corps’ assertion

that its “jurisdiction extends to any branch of a tributary

system that eventually flows into a navigable body of

water,” 332 F.3d at 711 (emphasis added), the Fourth

Circuit clearly found a “significant nexus” to be

unnecessary. Thus, it erroneously upheld CWA

jurisdiction where essentially “any” connection to

navigable waters exists, even one that is extremely

tenuous and remote.

This Court should grant the writ to rectify the

Fourth Circuit's failure to follow SWANCC.

10

II. THE SCOPE OF THE CLEAN WATER ACT IS

AN ISSUE OF GREAT NATIONAL

IMPORTANCE.

A. The Fourth Circuit’s Decision Will Have

Broad Effects On The Implementation Of

The Clean Water Act.

The Fourth Circuit's decision is of major

significance because the term “navigable waters” governs

the scope of several distinct regulatory programs under

the CWA, including permitting under the National

Pollutant Discharge Elimination System (“NPDES”), 33

US.C. § 1342; oil and hazardous substance spill

prevention and liability provisions, 33 U.S.C. § 1321; and

permitting for the discharge of dredged or fill material

such as that at issue in the Deaton case, 33 U.S.C. §

1344(a). The term “navigable waters” also governs the

scope of the Oil Pollution Act (“OPA”), and at least one

circuit court has held that the term has the same meaning

under both statutes. Rice v. Harken Exploration Co., 250

F.3d 264, 267 (5t* Cir. 2001).

The regulations implementing the CWA contain

no less than 10 definitions of “navigable waters” and

“waters of the United States.” According to the Advance

Notice of Proposed Rulemaking on the Clean Water Act

Regulatory Definition of “Waters of the United States,” issued

jointly by the Corps and the Environmental Protection

Agency (“EPA”), “[c]ounterpart and substantively similar

regulatory definitions appear at 40 CFR 110.1, 112.2,

116.3, 117.1, 122.2, 232.2, 300.5, part 300 App. E, 302.3 and

401.11.” 68 Fed. Reg. 1991, 1994 (Jan. 15, 2003). Many of

these definitions, including the Corps’ definition under

11

section 404 of the CWA, are extremely broad and purport

to regulate waters and wetlands with little or no

connection to traditional navigable waters. The Fourth

Circuit's decision may be taken by the agencies as an

implied validation of such expansive regulatory

definitions, notwithstanding this Court's ruling in

SWANCC.

Moreover, the Fourth Circuit’s decision has been

afforded great deference by other circuits. In United

States v. Rapanos, the Sixth Circuit found there to be a

sufficient nexus between wetlands adjacent to a man-

made drain and traditional navigable waters far removed

(between eleven and twenty-one miles) from the man-

made drain. Rapanos, 339 F.3d 447 (6 Cir. 2003). The

Sixth Circuit found the Fourth Circuit's decision

persuasive and relied upon the analysis of the Fourth

Circuit in finding “an ample nexus to establish

jurisdiction” under the CWA. Id. at 453.

In United States v. Rueth Development Co., the

Seventh Circuit affirmed penalties assessed by the EPA

against the defendant for failure to obtain a permit before

discharging dredged or fill material into wetlands that

were adjacent to a ditch, which ultimately led to

traditional navigable waters by way of another ditch.

Rueth, 335 F.3d 598 (7% Cir. 2003). The Seventh Circuit

indicated that the connection between nonnavigable

waters and traditional navigable waters need only be

slight to confer jurisdiction. Id. at 604. It relied on Deaton

in determining that SWWANCC did not affect the Corps’

assertion of jurisdiction: “the Fourth Circuit upheld the

Corps’ exercise of adjacency jurisdiction over a parcel of

land whose only connection to navigable waters was

surface runoff that, after a ‘winding, thirty-two-mile

———e

12

path,’ emptied into the Chesapeake Bay.” Id. (quoting

Deaton, 332 F.3d at 702).

In addition, the Fourth Circuit itself continues to

rely on Deaton to uphold regulatory jurisdiction where

nonnavigable waters are far removed from traditional

navigable waters. See Treacy v. Newdunn Associates, LLP,

344 F.3d 407 (4' Cir. 2003).

Accordingly, the Deaton decision is having, and

will continue to have, widespread influence upon the

implementation of the CWA.

B. The Conflict Between The Fourth and

Fifth Circuits Creates Substantial

_ Confusion And Uncertainty For The

Regulated Community.

The Fourth Circuit's decision conflicts with the

Fifth Circuit’s decision in Rice v. Harken Exploration Co.

250 F.3d 264 (5 Cir. 2001).4 See Petition for Writ of

Certiorari, Deaton v. United States, No. 93 - 701, at 10-14

(November 10, 2003). This conflict creates substantial

confusion and uncertainty for the regulated community.

The petroleum and natural gas industry has

thousands of facilities operating throughout the nation.

‘ In fact, the Fifth Circuit recently affirmed that it is in

conflict with the Fourth and Sixth Circuits in United States v.

Needham. No. 02-30217, 2003 WL 22953383, at *3 (5 Cir. 2003).

According to the Fifth Circuit, the expansive interpretation of

navigable waters by the Fourth and Sixth Circuits is

“unsustainable under SWWANCC” and “the United States may not

simply impose regulations over puddles, sewers, roadside ditches

and the like.” Id.

13

While many of those facilities are located near navigable

waters or adjacent wetlands, many others are distant

from any navigable waters or adjacent wetlands

(although not necessarily without some highly tenuous

connection to such waters or wetlands). Some companies

have operations in many different states and regions.

Corporate planning for compliance with the NPDES, oil

spill prevention, and dredge and fill programs has

become extremely complicated with the law’s divergence

among the circuits.

The difficulty is compounded by a lack of clear

guidance from the responsible federal agencies. Congress

and the President have delegated to the Corps and EPA

authority to administer the regulatory programs under

the CWA and the OPA. The Corps and EPA have

attempted to issue clarifying guidance in light of this

Court’s decision in SWWANCC. 68 Fed. Reg. 1991, 1995-

1998 (Jan. 15, 2003). This “guidance” acknowledges that

the lower courts are split in their interpretations of

SWANCC and the question of CWA jurisdiction. Id. It

notes that some courts have taken the same view as the

Fourth Circuit, that CWA jurisdiction extends to the

entire tributary system, while other courts have taken the

view of the Fifth Circuit, that SWANCC interprets CWA

jurisdiction less expansively. Id. It admits that there are

“uncertainties” concerning jurisdiction under the CWA

over some isolated, intrastate waters that are not

navigable. Id. at 1996. It also states that the Corps and

the EPA staff should, “generally speaking,” assert

jurisdiction over tributary systems of navigable waters.

Id. at 1998. Ultimately, the guidance directs Corps and

EPA staff to “make jurisdictional and permitting

decisions on a case-by-case basis considering this

14

guidance, applicable regulations, and any additional

relevant court decisions.” Id.

Thus, not only does the split between the Fourth

and Fifth Circuits create confusion by itself, the federal

agencies responsible for implementing the CWA are

unclear in their interpretations of CWA jurisdiction.

Considering that there are ten EPA regions and eight

Corps districts, petroleum and natural gas companies

throughout the country are now subject to a multiplicity

of interpretations of the CWA. The Court should grant

the writ in order to eliminate the confusion and

uncertainty that currently beset the regulated community.

en The Fourth Circuit’s Decision Poses

Significant Economic Consequences For

The Regulated Community.

Compliance with the permitting, planning,

treatment, and other requirements of the various CWA

programs is often very costly. Considering the Fourth

Circuit’s misreading of SWANCC and the resulting

expansive interpretation of “navigable waters,” any of

thousands of facilities could find itself subject to

extensive CWA regulation through a federal agency's

creatively linking an abutting ditch, dry arroyo,

excavation, or other topographic feature through a

geographical chain that “eventually” leads to a navigable-

in-fact water, regardless of the distance from the

navigable-in-fact water or the lack of scientific support

that actually demonstrates a potential effect on the

navigable-in-fact water. This is especially a problem in

the exploration and production segment of the petroleum

industry, in which many operations are located in arid,

desert or desert-like climates, such as in west Texas or

15

New Mexico, where the possibility that a remote ditch

will affect a navigable-in-fact water can be extremely

attenuated.

Thus, the Fourth Circuit's decision poses

significant, detrimental economic consequences for

industry that are not justified by the purported benefits to

be gained.

CONCLUSION

The decision of the Fourth Circuit conflicts with

this Court’s decision in SWANCC, thereby opening the

door to substantial overreaching by the Corps and EPA in

the implementation of the CWA. Because of this, and

because the scope of the CWA is an issue of great national

importance, the Court should grant the writ.

January 30, 2004 Respectfully submitted,

Thomas Sayre Llewellyn*

9125 MacArthur Blvd., NW

Suite 32A

Washington, DC 20016

(202) 237-7291

Harry Ng

Ralph J. Colleli Jr.

Erik Milito

American Petroleum Institute

1220 L Street, NW

Washington, DC 20005

(202) 682-8000

Counsel for Amicus Curiae

(Counsel of Record*)