Amicus Curiae Brief — Lucas v. United States (No. 07-1512)

2B)

FILED

JUL 7 - 2008

No. 07-1512 OFFICE OF THE CLERK

wT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

ROBERT J. LUCAS, JR., et al.

Petitioners,

Vv.

UNITED STATES,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF THE NATIONAL ASSOCIATION

OF HOME BUILDERS AND THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA SUPPORTING PETITIONERS

DUANE J. DESIDERIO ROBIN S. CONRAD

THOMAS J. WARD* AMAR D. SARWAL

*Counsel of Record NATIONAL CHAMBER,

JEFFREY B. AUGELLO LITIGATION CENTER, INC.

NATIONAL ASSOCIATION 1615 H STREET, N.W

OF HOME BUILDERS . WASHINGTON, D.C. 20062

1201 15TH STREET, NW

WASHINGTON, D.C. -20005 (202) 463-5337

(202) 266-8146

July 7, 2008

EE REPO ce RIL TAOS SPI NEARER SAAR RE ARI So EES SPIES ADL ELITE A CTI ER

QUESTIONS PRESENTED

Amici will address the first and second questions

presented:

1. In applying Rapanos v. United States, 547 U.S.

715 (2006), to determine federal jurisdiction over

wetlands under the Clean Water Act, are federal

courts bound to apply t.e analysis of the plurality

decision, the concurrence, or some other standard?

2. Under whichever approach the Court chooses,

did the Fifth Circuit err in holding that federal

jurisdiction under the Act extends to a wetland that

merely “neighbors” a “tributary” of a navigable water,

without requiring that the wetland have a continuous

surface connection with a relatively permanent body

of water, or that it significantly affect the quality of

traditional navigable waters?

1]

TABLE OF CONTENTS

Page(s)

WE IOING PRESEINTED..............s.ccccccccccocsssessessees i

A Sa ay | > 1V

INTERESTS OF THE AMICI CURIAE .................... 1

SUMMARY OF ARGUMENT ...................cssccccsssesssees 3

Radics bbnicnnsesiidiesdocnincavincsparsinasseumnnees 4

I. THE LOWER COURTS NEED GUIDANCE ON

WHICH TEST FROM RAPANOS CONTROLS

QUESTIONS OF CWA JURISDICTION ......... 4

A. The “Narrowest Grounds of Concurrence”

from Rapanos are Impossible to Discern....... 4

B. Specific Areas of Consensus Among

The Rapanos Justices are Discernable—

and Should be Announced by a Majority

cs acembhahciwtececsanveseess 11

Il. GUIDANCE FROM THIS COURT IS

NECESSARY TO CLARIFY THE

MEANING OF “TRADITIONAL

NAVIGABLE WATERS” ..........:.sccsccccccrcsessesess 17

A. The Rapanos Plurality and Concurrence

Relied on The Daniel Ball and Appalachian

Electric in Discussing TNW5S........................ 19

B. A Waterbody is a TNW if it Satisfies Three

Ns connavcnkaetnivavnsbdeseuntiancenancebsaresticnns 20

ill

TABLE OF CONTENTS cont.

Page(s)

I11. THIS COURT SHOULD APPLY THE RULE

OF LENITY TO RESOLVE AMBIGUITIES

ON THE MEANING OF STATUTORY

“INAV ICRADS Lis WATERS .0..5..00cccccscsccsrcensseresss 24

see NE aiiridna si akinindnbcaserreretievicatubininncennese 26

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Baccarat Fremont Developers, LLC v. U.S. Army

Corps of Engrs, 425 F.3d 1150 (9th Cir. 2005),

cert. denied, 127 S. Ct. 1258 (2007)...................08 10

Escanaba Co. v. Chicago, 107 U.S. 678 (1883)........ 21

Grutter v. Bollinger, 539 U.S. 306 (2003) .................. 5

Leovy v. United States, 177 U.S. 621 (1900)............ 21

Liparota v. United States, 471 U.S. 419 (1985)....... 25

Marks v. United States, 430 U.S. 188 (1977)...4, 5, 11

Nichols v. United States, 511 U.S. 738 (1994)........... 5

Northern Cal. River Watch v. City of Healdsburg,

496 F.3d 999 (9th Cir. 2007), cert. denied,

Se Bes Fe ions vrcicsv csc secencovesadsnvesesvcess 6, 10

Rapanos v. United States,

RR Ayo) ) ss passim

Regenis of the Univ. of Cal. v. Bakke,

SEE ae Is A PUN ios vn pce rossaevedenevesesvecnesvasenavesnsess 5

Rowe v. Granite Bridge Corp., 38 Mass (21 Pick.)

a a Ns reat og 21

San Francisco Baykeeper v. Cargill Salt Div.,

er we ee ae es: a re 8

Simsbury-Avon Preservation Soc’y, LLC v. Metacon

Gun Club, 472 F. Supp. 2d 219 (D. Conn. 2007),

appeal docketed, No. 07-0795CV (2d Cir.

i el ce Mieuiiuns 9-10

TABLE OF AUTHORITIES cont.

Page(s)

The Daniel Ball, 77 U.S. 557 (1870) ............ 19,.20, 21

The Montello, 87 U.S. 430 (1874) ...........ccccecceeseseeeees 21

United States v. Appalachian Elec. Power Co.,

OG TAs He Ci in ict scent dntntncinstnsnitosnsnninnics 19, 22

United States v. Bailey, 516 F.Supp. 2d 998

eRe ee a a ah Cee 10

United States v. Bass, 404 U.S. 336 (1971).............. 25

United States v. Cundiff, 480 F. Supp. 2d 940

I as 10

United States v. Gerke Excavating, Inc.,

464 F.3d 723 (7th Cir. 2006), cert. denied,

WE Ree 5 eR nner Sen eae Ora 6, 10

United States v. Heinrich, 184 Fed. Appx. 542

(7th Cir. 2006), cert. denied, 127 S. Ct. 2974

I cic ii sha aaah tikes daeecinicaise a agaccnshs camila taasene catones 10

United States v. Holt State Bank, 270 U.S. 49

0 EEE at he eee 21-22

United States v. Johnson, 467 F.3d 56

(1st Cir. 2006), cert. denied, 128 S. Ct. 375

POSTON eR AS RE es IRIN MI 6-7, 9, 11

United States v. Lucas, 516 F.3d 316

A a 18

United States v. Morrison, 178 Fed. Appx. 481

(6th Cir. 2006), cert. denied, 127 S. Ct. (2007) ..... 10

vl

TABLE OF AUTHORITIES cont.

Page(s)

United States v. Moses, 496 F.3d 984

(9th Cir. 2007), cert. denied, 544 US. ----,

I as eee ee 10

United States v. Rio Grande Dam & Irrigation Co.,

Sa a a snide obenoneve 21

United States v. Robison, 505 F.3d 1208

i idawuns 7

United States v. Riverside Bayview Homes,

eh baicrscccuhevecs¥ocuccceccasdecesccvecteccvsses 8

United States v. Santos, 128 S. Ct. 2020 (2008)...... 25

United States v. Utah, 283 U.S. 64 (1931)............... 22

Utah v. United States, 403 U.S. 9 (1971)...........2..... 22

Statutory and Regulatory Provisions

33 U.S.C.'§ 403......... “RET HAST REE NCCE CASO RARE CRN AE 17

IE ik. occu cntenedsienemnsadianpseeetseouevaviia 24

i ed peeled dena ge tala 24

SI. Me Oo vs's son ponsuvcabcnansccrweesdcsewsduvacvecs 3. 17, 24

OTHER

U.S. Army Corps of Eng’rs Jurisdictional

Determination Form Instructional ( idebook

(2007), http: //www.usace.army.mil,’cw/cecwo/

reg/cwa_guide/jd_guidebook_051207final.pdf....21

INTERESTS OF THE AMICI CURIAE

The Nationa] Association of Home _ Builders

(“NAHB”) and the Chamber of Commerce of the

United States of America (“Chamber”) have received

the parties’ written consent to file this amicus curiae

brief supporting Petitioner.! NAHB represents over

235,000 builder and associate members throughout

the United States, including individuals and firms

that construct and supply single-family homes, as

well as apartment, condominium, multi-family,

commercial and industrial builders, land developers

and remodelers. Its members are frequently subject

to regulation under the Clean Water Act (“CWA”). As

a result, NAHB has developed comprehensive

familiarity with the CWA’s permitting requirements,

provides compliance advice to its members, and has

witnessed numerous situations where federal

regulators have exercised authority beyond the

CWA’s limits.

The Chamber is the world's largest business

federation. The Chamber represents an underlying

membership of more than three million companies

and professional organizations of every size, in every

industry sector, and from every region of the country.

An important function or the Chamber is to represent

the interests of its members in matters before

Congress, the Executive Branch, and the courts.

' Letters of consent are on file with the Clerk. Pursuant to Rule

37.6 of this Court, amici state that their counsel authored this

brief. The brief was not written in whole or part by counsel for a

party, and no one other than amici made a monetary

contribution to its preparation.

This case is important to the amici because it

involves the scope of the jurisdiction of the federal

government over certain waterbodies under the CWA.

Many of amici’s members have had development

plans ruined by the Corps’ assertion of CWA

jurisdiction over their property. Other members have

been denied the potential economic benefits that

result from development. As the principal voice of the

American business community, the Chamber is well-

suited to present the interests of business in this case.

NAHB and the Chamber frequently participate as

party litigants and amicus curiae to safeguard the

rights and interests of their members. NAHB was a

recent petitioner in a CWA case, NAHB v. Defenders

of Wildlife, 551 U.S. ---, 127 S.Ct. 2518 (2007).

Attached at Appendix A to this brief is a list of cases

in which NAHB has participated before this Court as

amicus curtae or “of counsel,” in a number of matters

involving landowners aggrieved by over-zealous

regulation under a wide array of statutes and

regulatory programs.

I.

II.

Ill.

3

SUMMARY OF ARGUMENT

Which Test From Rapanos Controls?: The 4-

1-4 decision in Rapanos v. United States, 547

U.S. 715 (2006), failed to articulate a unifying

theory to determine the scope of “navigable

waters” under the CWA. A pronounced split

among the circuit courts of appeals has thus

developed on the “correct” test for ascertaining

the CWA’s scope. Millions of acres of property

will remain in regulatory limbo until a majority

of this Court announces the guiding test for

“navigable waters” jurisdiction.

Guidance is Necessary to Clarify the

Meaning of “Traditional Navigable Waters”:

In Rapanos, both the plurality and concurrence

articulated that CWA jurisdiction is tied to

traditionally navigable waters (“TNWs’”). Infra

pp. 17-18. The courts below incorrectly equated

navigable-in-fact waterbodies with TNWs.

The Court Below Should Have Applied the

Rule of Lenity: Neither the courts nor the

agencies have a clear understanding “waters of

the United States” covered by the CWA. 33

U.S.C. § 1362(7). Because of the ambiguity, the

Fifth Circuit should have resolved questions of

the Act’s coverage in the Petitioners’ favor and

found that the wetlands at issue are not within

the CWA.

ARGUMENT

I. THE LOWER COURTS NEED GUIDANCE

ON WHICH TEST FROM RAPANOS

CONTROLS QUESTIONS OF CWA

JURISDICTION.

A. The “Narrowest Grounds of Concurrence”

from Rapanos are Impossible to Discern.

The Petition describes the tests for Clean Water

Act (“CWA”) jurisdiction announced by the different

Rapanos opinions—in particular, the “relatively

permanent waterbody” test used by Justice Scalia in

his plurality opinion, and the “significant nexus” test

used by Justice Kennedy in his concurrence in the

judgment. Pet. at 4-6. Petitioners also set forth (Pet.

14-16) the circuit conflict on whether and how the

principles from Marks v. United States, 430 U.S. 188

(1977), apply to discern a holding from Rapanos,

where a majority of the Justices failed to agree on a

categorical test for CWA coverage. The oft-cited

“rule” from Marks is:

When a fragmented Court decides a case and

no single rationale explaining the result enjoys

the assent of five Justices, “the holding of the

Court may be viewed as that position taken by

those members who concurred in the judgments

on the narrowest grounds.”

Marks, 430 U.S. at 193 (emphasis added) (citations

omitted). The Marks formulation has not been a

favorite of this Court. “This test is more easily stated

than applied,” and it is “not useful to pursue the

Marks inquiry to the utmost logical possibility when

it has so obviously baffled and divided the lower

courts that have considered it.” Nichols v. United

States, 511 U.S, 738, 745-46 (1994).

Hidden in Chief Justice Roberts’s concurrence,

there is a single, oblique reference to Marks:

It is unfortunate that no opinion commands a

majority of the Court on precisely how to read

Congress’ limits on the reach of the Clean

Water Act. Lower courts and regulated entities

will now have to feel their way on a case-by-

case basis. This situation is certainly not

unprecedented. See Grutter v. Bollinger? 539

U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304

(2003) (discussing Marks v. United States, 430

U.S. 188 ...(1977)).

Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring).

Thus, the Chief Justice did not rely on Marks as

direct authority, but simply noted the case as

“discuss[ed]” in Grutter.2 None of the individual

Rapanos opinions provides any analysis of Marks, or

2 In Grutter, the Court questioned whether Justice Powell's lone

concurrence in the 4-1-4 Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978), decision was controlling under Marks. It

found that it was not necessary to answer that question as a

majority of the Court ultimately endorsed Justice Powell's view.

Grutter, 539 U.S. at 325. Grutter does not extol Marks as a

model of clarity, but rather cites Nichols, to recognize that

Marks “has so obviously baffled and divided the lower courts ....”

Id. at 325 (citing Nichols, 511 U.S. at 745-46)

how Marks may be used to make sense of the Justices’

differing approaches for CWA coverage.

Nonetheless, the Seventh and Ninth Circuits have

applied Marks to determine that the “narrowest

grounds” from Rapanos means the CWA jurisdictional

test that is least restrictive of the government's

authority. These circuits have concluded that Justice

Kennedy’s “significant nexus” test governs because it

provides the Corps and EPA with the broadest

regulatory purview. See United States v. Gerke

Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir. 2006)

(“This test is narrower (so far as reigning in federal

authority is concerned) than the plurality’s in most

cases ...”); No. Cal. River Watch v. City of Healdsburg,

496 F.3d 993, 999 (9th Cir. 2007) (Justice Kennedy's

concurrence “is the narrowest ground to which a

majority of the Justices would assent if forced to

choose in almost all cases”).

But why are the “narrowest grounds” equated with

the least restrictions (and hence broadest assertion)

on government authority? Especially under a statute

such as the CWA—which can result in civil and

criminal sanctions, and imprisonment if violated—

shouldn’t the “narrowest grounds” mean the least

restrictions on otherwise lawful private conduct?

Indeed, the First Circuit criticized Gerke as

“[cJurious” and “without explanation,” and decided it

is "just as plausible to conclude that the narrowest

ground of decision in Rapanos is the ground most

restrictive of government authority (the position of

the plurality), because that ground avoids the

constitutional issue of how far Congress can go in

asserting jurisdiction under the Commerce Clause."

United States v. Johnson, 467 F.3d 56, 61, 63 (Ist Cir.

2006).3

Moreover, the Eleventh Circuit has somewhat

followed the Seventh and Ninth Circuits, by deciding

that Rapanos’s “narrowest grounds” means the least

curtailment of federal authority. But that court

makes matters even more confusing, because it would

vary the governing CWA jurisdictional test from case

to case. In United States v. Robison, 505 F.3d 1208

(11th Cir. 2007), the Eleventh Circuit wrote that “in

factual circumstances different from Rapanos, Justice

Scalia’s test may be less restrictive of CWA

jurisdiction,” and that “[t]his case is arguably one in

which Justice Scalia’s test may actually be more

likely to result in CWA jurisdiction than Justice

Kennedy's test, despite the fact that Justice

Kennedy’s test, as applied in Rapanos, would treat

more waters as within the scope of the CWA.” Id. at

1122-23. One can imagine the confusion that will

> In Johnson, Judge Torruella wrote separately to stress his

belief that the Justice Scalia’s Rapanos plurality provided the

lone controlling analysis, because the “significant mexus” test

raises serious constitutional concerns:

I cannot concur that Justice Kennedy's seemingly opaque

‘significant nexus’ test is a constitutional measure of

federal regulatory jurisdiction .... [The plurality’s test]

strikes a constitutional balance between federal and

state regulatory interests, and our nation’s interest in

clean water and the individual land owner's right to

manage their /sic] property in accordance with their

dreams and aspirations, whether economic or otherwise.

467 F.3d at 66-67 (Torruella, J., concurring in part, dissenting in

part).

arise within the Eleventh Circuit where the district

courts must decide if they are dealing with facts like

Rapanos (where Justice Kennedy’s approach will

control), or unlike Rapanos (where the plurality

approach will control). When is a CWA jurisdictional

case like, or unlike, Rapanos?

The folly in deeming “significant nexus” a broader

assertion of federal jurisdiction compared to the

plurality’s approach is evident in cases decided since

Rapanos. For example, on another occasion the Ninth

Circuit decided that the CWA did not cover a pond

because “Justice Kennedy’s controlling concurrence

explained that only wetlands with a significant nexus

to a navigable-in-fact waterway are covered by the

Act.” San Francisco Baykeeper v. Cargill Salt Div.,

481 F.3d 700, 707 (9th Cir. 2007) (emphasis added).

The Ninth Circuit said: “[W]Je emphasize that [the

significant nexus] standard was for wetlands ....” Id.

at 708. Thus, Baykeeper interprets significant nexus

to not reach ponds, pools, creeks, or other non-

wetland features.’ In contrast, the Rapanos plurality

could consider such features as statutory “navigable

4 Baykeeper correctly placed bounds around “significant nexus”

as only allowing coverage vis-d-vis wetlands, considering that

the primary basis for Justice Kennedy's theory was United

States v. Riverside Bayview Homes, 474 U.S. 121 (1985). See,

e.g., Rapanos, 547 U.S. at 780 (Kennedy, J., concurring) (relying

on Riverside Bayview, and stating: “As applied to wetlands

adjacent to navigable-in-fact waters, the Corps’ conclusive

standard for jurisdiction rests upon a reasonable inference of

ecologic interconnection, and the assertion of jurisdiction for

those wetlands is sustainable under the Act by showing

adjacency alone”).

9

waters” if they constitute “relatively permanent,

standing or continuously flowing bodies of water

‘forming geographic features .....” Rapanos, 547 U.S.

at 739 (Scalia, J.). Accordingly, the plurality might

deem a feature like Walden Pond as within the CWA,

while the “significant nexus” test would not stretch so

far—because Walden Pond is not a wetland. From

this perspective, the significant nexus test is more

restrictive of Corps jurisdiction; more types of

features escape CWA coverage under Justice

Kennedy’s approach compared to the breadth of

Justice Scalia’s analysis, which reaches non-wetlands.

Hence, following Baykeeper, the Rapanos plurality

might be considered “the narrowest grounds” of

concurrence.

Precisely because of the arbitrariness’. in

discerning which test places greater limits on federal

authority, the First Circuit rejected the course of the

Seventh, Ninth, and Eleventh Circuits. In Johnson,

467 F.3d 56 (list Cir. 2006), the First Circuit

acknowledged “the shortcomings of the Marks

formulation in applying Rapanos.” 467 F.3d at 64.

Johnson thus ruled that “[t]he federal government

can establish jurisdiction over the target sites if it can

meet either the plurality’s or Justice Kennedy’s

standard as laid out in Rapanos.” Id. at 66 (emphasis

added). In fact, Justice Stevens suggested this same

approach in his Rapanos dissent, 547 U S. at 810 n.14

(“{I]n these and future cases the United States may

elect to prove jurisdiction under either test”).5

5 Other lower courts have adopted Johnson's either/or approach.

See Simsbury-Avon Preservation Soc’y, LLC v. Metacon Gun

10

It is no wonder that the lower courts have rapidly

devolved into conflict on the scope of CWA coverage.

Does Marks even apply to lend interpretive assistance

to Rapanos? If so, how does it apply and what are the

“narrowest grounds” of concurrence among the

Justices? Does “significant nexus” control? Does

“relatively permanent waterbody” control? Can either

test be used? Is there some other test? Since

Rapanos was decided in 2006, the underlying petition

in the case at bench is the eighth request seeking this

Court’s guidance on how property owners and

regulators should determine if an aquatic feature is

subject to federal CWA control.6€ The conflict is

mature, the confusion is resolute, and things will get

worse, unless this Court rapidly intervenes to lay

some ground rules for interpreting Rapanos.

Respectfully, the petition should be granted.

Club, 472 F. Supp. 2d 219, 226-27 (D. Conn. 2007), appeal

docketed, No. 07-0795CV (2d Cir. Mar. 2, 2007); United States v.

Cundiff, 480 F.Supp. 2d 940, 944 (W.D. Ky. 2007); United States

v. Bailey, 516 F.Supp.2d 998, 1006 (D. Minn. 2007).

6 The Court has denied certiorari in Gerke Excavating, Inc., 464

F.3d 723, cert. denied, 128 S. Ct. 45 (2007); Johnson, 467 F.3d

56, cert. denied, 128 S. Ct. 375 (2007); City of Healdsburg, 496

F.3d 999, cert. denied, 128 S. Ct. 1225 (2008); United States v.

Heinrich, 184 Fed. Appx. 542 (7th Cur. 2006), cert. denied, 127

S.Ct. 2974 (2007); Unitea Ctates v. Morrison, 178 Fed. Appx. 481

(6th Cir. 2006), cert. denied, 127 S.Ct. 270 (2007); Baccarat

Fremont Developers, LLC v. U.S. Army Corps of Eng’rs, 425 F.3d

1150 (9th Cir. 2005), cert. denied, 127 S.Ct. 1258 (2007); and

United States v. Moses, 496 F.3d 984 (9th Cir. 2007), cert. denied,

544 US. ----. 2008 WL 743960 (June 23, 2008).

11

B. Specific Areas of Consensus Among the

Rapanos Justices are Discernable—and

Should be Announced by a Majority of

This Court.

As the First Circuit stated, “one might sensibly

conclude ... that the ‘narrowest grounds’ are simply

understood as the ‘less far-reaching common ground.’

” Johnson, 467 F.3d at 63 (citations omitted). Again,

to detect a court holding among five Justices, the

Marks formulation requires an examination of those

differing opinions that “concurred in the judgments.”

Marks, 430 U.S. at 193. Any holding from Rapanos

must therefore be lhmited to an examination of

Justice Scalia’s plurality and Justice Kennedy’s

concurrence—because only those opinions garnered

support from five Members who concurred in the

judgment by vacating the Sixth Circuit's too-

expansive interpretation of the CWA.’ ~~ Justice

Stevens’s dissent does not factor into this calculus

because it did not vacate the Sixth Circuit.* With the

approaches taken by Justices Scalia and Kennedy

thus placed in proper focus, there are important

points of consensus that this Court should firmly

announce to aid regulators and property owners in

7 See Rapanos, 547 U.S. at 757 (plurality) (“We vacate the

judgments of the Sixth Circuit in both No. 04-1034 /Rapanos/

and No. 04-1384 /Carabell], and remand both cases for further

proceedings’); td. at 787 (Kennedy, J. concurring) (“In these

consolidated cases I would vacate the judgments of the Court of

Appeals ....”)

8 Rapanos, 547 U.S. at 810 (Stevens, J., dissenting) (“l1 would

affirm the judgments in both cases ....”).

12

answering questions of CWA jurisdiction. Illustrative

areas of agreement between the plurality and

concurrence are as follows:

The CWA’s scope is not restricted to

traditional navigable waters.

> Plurality: “[T]he Act’s term ‘navigable waters’

includes something more than _ traditional

navigable waters ....” Rapanos, 547 U.S. at

731. The plurality “affirmatively reject[ed]” an

interpretation that the CWA “include[s] only

navigable-in-fact waters.” Jd. at 751.

>» Concurrence: “Congress’ choice of words

creates difficulties, for the Act contemplates

regulation of certain ‘navigable waters” that

are not in fact navigable.” Id. at 779.

The word “navigable,” in the phrase

“navigable waters,” has meaning.

> Plurality: “[T)he traditional term ‘navigable

waters ... carries some of its original substance

esse A Oe Fe.

> Concurrence: “[T]he dissent reads a central

requirement out [of the CWA]—namely, the

requirement that the word ‘navigabie’ in

‘navigable waters’ be given some importance.”

Id. at 778. “Consistent with SWANCC and

Riverside Bayview and with the need to give

the term ‘navigable’ some meaning, the Corps’

jurisdiction over wetlands depends upon the

existence of a significant nexus between the

wetlands in question and navigable waters in

the traditional sense.” Id. at 779.

13

e A mere hydrological connection can not

provide the basis for CWA jurisdiction.

> Plurality: Rejecting the federal government's

hydrologic connection theory in deciding that

the phrase “ ‘the waters of the United States’ . .

. cannot bear the expansive meaning that the

Corps would give it.” Id. at 731-732.

“{R]elatively continuous flow is a necessary

condition for qualification as a ‘water,’ not an

adequate condition.” Jd. at 736 n.7.

> Concurrence: Criticizing the dissent because it

“would permit federal regulation whenever

wetlands lie alongside a ditch or drain,

however remote or insubstantial, that

eventually may flow into traditional navigable

waters.” Id. at 778. “[MJere hydrologic

connection should not suffice in all cases; the

connection may be too insubstantial for the

hydrologic linkage to establish the required

nexus with navigable waters as traditionally

understood.” Jd. at 784-785.

e Hypothetical, speculative, or eventual water

flows do not support CWA jurisdiction.

> Plurality: “[T]he phrase ‘the waters of the

‘United States’ includes only those relatively

permanent, standing or continuously flowing

bodies of water ‘forming geographic features’

that are described in ordinary parlance as

‘streams[,] ... oceans, rivers, [and] lakes.” dd.

at 739 (emphasis added). “{O]nly those

wetlands with a continuous surface connection

to bodies that are ‘waters of the United States’

in their own right, so that there is no clear

demarcation between ‘waters’ and wetlands,

14

are ‘adjacent to’ such waters and covered by the

Act.” Id. at 742.

>» Concurrence: “The Corps’ theory of jurisdiction

in these consolidated cases—adjacency to

tributaries, however remote and

insubstantial—raises concerns that go beyond

the holding of Riverside Bayview; and so the

Corps’ assertion of jurisdiction cannot rest on

that case.” Jd. at 780 (emphasis added).

“When ... wetlands’ effects on water quality are

speculative or insubstantial, they fall outside

the zone fairly encompassed by the statutory

term ‘navigable waters.” Jd. at 780 (emphasis

added). In remanding Carabell back to the

Sixth Circuit, Justice Kennedy stated that

“[t]he conditional language in [the Corps’s]

assessments— potential ability,’ ‘possible

flooding’—could suggest an undue degree of

speculation, and a reviewing court must

identify substantial evidence supporting the

Corps’ claims ....” Jd. at 786. In Carabell, “the

Corps based its jurisdiction solely on the

wetlands’ adjacency to the ditch opposite the

berm on the propertys edge .... [MlJere

adjacency to a tributary of this sort ts

insufficient; a similar ditch could just as well be

located many miles away from any navigable-

in-fact water and carry only insubstantial flow

towards it.” Jd. at 786 (emphasis added).

Mere presence of an ordinary high water

mark does not render aée feature a

jurisdictional “tributary,” or the wetlands

next to such aé feature’ jurisdictional

“adjacent wetlands.”

15

«ao

> Plurality: As set out above, “the waters of the

United States’ includes only those relatively

permanent, standing, or continuously flowing

bodies of water ‘furming geographic

features’....” Id. at 739 (emphasis added). And,

as to wetlands, only those with a “continuous

surface connection to bodies that are ‘waters of

the United States’ in their own right ....” Jd. at

742 (original emphasis).

>» Concurrence: “[T]he Corps deems a water a

tributary if it feeds into a traditional navigable

water (or tributary thereof) and possesses an

ordinary high-water mark .... This standard

presumably provides a rough measure of the

volume and regularity of flow. ... [T]he breadth

of this standard—which seems to leave wide

room for regulation of drains, ditches, and

streams remote from any navigable-in-fact

water and carrying only minor water-volumes

towards it—precludes its adoption as _ the

determinative measure of whether adjacent

wetlands are likely to play an important role in

the integrity of an aquatic system comprising

navigable waters as traditionally understood.

Indeed, in many cases wetlands adjacent to

tributaries covered by this standard might

appear little more related to navigable-in-fact

waters than were the isolated ponds held to fall

beyond the Act’s scope in SWANCC.” Td. at

781-782 (emphasis added).

e CWA jurisdiction is not lost simply because a

waterbody is regularly wet during certain

seasons and dry during others.

16

> Plurality: Recognizing that the Los Angeles

River would be jurisdictional under the CWA,

and stating: “We ... do not necessarily exclude

seasonal rivers, which contain continuous flow

during some months of the year but no flow

during dry months—such as the 290-day

continuously flowing stream postulated by

Justice STEVENS’ dissent ....” Id. at 733 n.5.

“{[NJo one contends that federal jurisdiction

appears and evaporates along with water in

such regularly dry channels.” Jd. at 733 n.6.

> Concurrence: “The Los Angeles River, for

instance, ordinarily carries only a trickle of

water and often looks more like a dry roadway

than a river ... Yet it periodically releases

water-volumes so powerful and destructive that

it has been encased in concrete ... over a length

of some 50 miles ... Though this particular

waterway might satisfy the plurality’s test, it is

illustrative of what often-dry watercourses can

become when rain waters flow.” Id. at 769-770

(emphasis added).

e As a general matter “navigable waters” and

“point sources” are not the same thing, and

normally a feature can’t be both.

> Plurality: The CWA’s definitions “conceive of

‘point sources’ and ‘navigable waters’ as

separate and distinct categories. The definition

of ‘discharge’ would make little sense if the two

categories were significantly overlapping.” Id.

at 735.

> Concurrence: “[E]ven were the statute read [as

the plurality does] to require continuity of flow

for navigable waters, certain waterbodies could

17

conceivably constitute both a point source and a

water.” Jd. at 772 (emphasis added).

Amicus does not offer these points as an

exhaustive list of all areas in which Justices Scalia

and Kennedy agree. But these examples of consensus

are important and, if articulated cohesively by a

majority of Justices in a single opinion, would go a

long way toward yielding proper and predictable

CWA implementation in the field.

II. GUIDANCE FROM THIS COURT IS

NECESSARY TO CLARIFY THE MEANING

OF “TRADITIONAL NAVIGABLE WATERS.”

After years of analyzing the CWA and advising

their members on how to comply with it, amici believe

that the genesis for many problems with the Act’s

implementation derive from the confusingly similar

nature of the terms used to define its jurisdictional

scope. Regulators, lawyers, and (with due respect)

courts use different phrases pertaining to “navigable”

features interchangeably and imprecisely. The Court

should view the petition as an opportunity to provide

all stakeholders with a shared understanding of basic

CWA terminology.

The CWA covers “navigable waters,” which are

defined to mean the “waters of the United States.” 33

U.S.C. §§ 1362(7), (12). Corps authority under Section

10 of the Rivers and Harbors Act of 1899 (“RHA”), 33

U.S.C. § 403, extends to the “navigable waters of the

United States.” 33 U.S.C. § 403. As noted above,

both Justices Scalia and Kennedy agreed that the

CWA’s scope encompasses more than RHA waters, or

18

the traditionally navigable waters (““TNWs”). Supra

p. 12. Yet, the determination of a feature as a TNW is

the crucial, foundational component of each of their

CWA analyses. Justice Scalia wrote that one

“finding” necessary to determine if a wetland is

covered by the CWA is if the “adjacent channel

contains a ‘wate[r] of the United States,’ (i.e, a

relatively permanent body of water connected to

traditional interstate navigable waters) ....” Id. at 742

(emphasis added). Justice Kennedy stated that “the

Corps’ jurisdiction over wetlands depends upon the

existence of a significant nexus between the wetlands

in question and navigable waters in the traditional

sense.” Id. at 779 (emphasis added) (Kennedy, J.,

concurring). Amici submit that great clarity would be

lent to CWA jurisdictional issues if this Court defines

the factors that comprise navigable waters in the

“traditional sense.”

Indeed, the district court’s jury instruction

confused a TNW with a “navigable-in-fact” waterbody,

as follows:

Wetlands are adjacent to a navigable body of

water if there is a significant nexus between

the wetlands in question and a navigable-in-

fact waterway.

United States v. Lucas, 516 F.3d 316, 323-24 (5th Cir.

2008) (emphasis added). In Rapanos, however,

Justice Kennedy, provided that wetlands must have a

significant nexus to a TNW, not a “navigable-in-fact”

waterbody. Supra p. 18. As discussed below, just

because a waterbody is “navigable-in-fact” does not

necessarily mean it is a TNW.

19

A. The Rapanos Plurality and Concurrence

Relied on The Daniel Ball and

Appalachian Electric in Discussing TNWs.

In portraying waters that are navigable in the

traditional sense, Justice Kennedy cited The Daniel

Ball, 77 U.S. 557 (1870), and United States ov.

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

explained that the “traditional understanding of the

term ‘navigable waters of the United States” is those

“waters susceptible to use in interstate commerce.”

Id. at 760 (emphasis added). Thus, when Justice

Kennedy refers to “navigable waters in the traditional

sense” (TNWs), he is ostensibly referring to the

“navigable waters of the United States.” Jd. at 779,

760.

Similarly, the Rapanos plurality relied on The

Daniel Ball and Appalachian Electric, in explaining

traditional federal] control over water features:

For a century prior to the CWA, we had

interpreted the phrase “navigable waters of the

United States” in the Act's predecessor statutes

to refer to interstate waters that are “navigable

in fact” or readily susceptible of being rendered

so. The Daniel Ball, 10 Wall. 557, 563, 19

L.Ed. 999 (1871); see also United States v.

Appalachian Elec. Power Co., 311 U.S. 377, 406

... (1940).

Rapanos, 546 U.S. at 723 (emphasis added).

20

B. A Waterbody is a TNW if it Satisfies Three

Criteria.

In The Daniel Ball, 77 U.S. 557 (1870), the

Supreme Court interpreted the term “navigable

waters of the United States.” The. case involved a

steam vessel that was allegedly operating in violation

of a federal law prohibiting unlicensed vessels from

transporting merchandise or people upon the “bays,

lakes, rivers, or other navigable waters of the United

States.” Id. at 557 (emphasis added). Resolving the

dispute, the Court first determined whether such

transport was being conducted on a navigable water

of the United States. According to Justice Field, the

answer was found in the river’s navigable capacity:

Those rivers must be regarded as_ public

navigable rivers in law which are navigable in

fact. And they are navigable in fact when they

are used, or are susceptible of being used, in

their ordinary condition, as highways for

commerce, over which trade and travel are or

may be conducted in the customary modes of

trade and travel on water. And they constitute

navigabi: waters of the United States within

the meaning of the acts of Congress, in

contradistinction from the navigable waters of

the States, when they form in their ordinary

condition by themselves, or by uniting other

waters, a continued highway over which

commerce is or may be carried on with other

States or foreign countries in the customary

modes in which such commerce is conducted by

water.

21

Id. at. 564 (emphasis added). Thus, under The Daniel

Ball, TNWs must contain a navigation element, a

commerce element, and an interstate element.9

Waters are TNWs if they are: (1) “navigable in fact”

(..e., support boat traffic); and (2) constitute a

highway of commerce for trade or travel; and (3) form

in their ordinary condition, or by uniting with other

waters, a continued highway over which commerce is

or may be carried on with other States or foreign

countries. !°

° See also Escanaba Co. v. Chicago, 107 U.S. 678, 682 (1883)

(“[t]he power vested in the general government to regulate

interstate and foreign commerce involves the control of the

waters of the United States which are navigable in-fact so far as

it may be necessary to ensure their free navigation, when by

themselves or their connection with other waters they form a

continuous channel for commerce among the states or with

foreign countries’); The Montello, 87 U.S. 430, 442 (1874)

(explaining it is not “every small creek in which a fishing skiff or

gunning canoe can be made to float at high water which is

deemed navigable” (quoting Chief Justice Shaw in Rowe v.

Granite Bridge Corp., 38 Mass (21 Pick.) 344 (1838))); United

States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 698

(1899) (finding the Rio Grande was not navigable in the

Territory of New Mexico and that “[t]he mere fact that logs,

poles, and rafts are floated down a stream occasionally and in

times of high water does not make it a navigable river”); Leovy

v. United States, 177 U.S. 621, 633 (1900) (explaining that the

jury was incorrectly informed that “the mere capacity to pass in

a boat of any size, however small, from one stream or rivulet to

another, ... is sufficient to constitute a navigable water of the

United States”).

10 In Appendix D of the U.S. Army Corps of Engineers

Jurisdictional Determination Form Instructional Gutdebook,

http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/jd_guid

ebook_051207final.pdf (2007) (hereinafter Guidebook), the Corps

and EPA relied on United States v. Holt State Bank, 270 U.S. 49

22

Subsequently, in Appalachian Electric, the Court,

building on the standard set forth in The Daniel Ball,

declared “fa] waterway, otherwise suitable for

navigation, is not barred from that classification

merely because artificial aids must make the highway

suitable for use before commercial navigation may be

undertaken.” Appalachian Electric, 311 U.S. at 407.

Thus, through “reasonable improvements” it is

possible to make “an interstate waterway available

for traffic,” thus bringing it within the power of

Congress. Jd. at 408. The Court acknowledged,

however, that “reasonable improvements” must be

tempered by economic practicality: “[t]here must be a

balance between costs and need at a time when the

improvement would be useful.” Jd. at 407-408. Thus,

in Appalachian Electric, the Court established the

principle that if a waterbody requires “reasonable

improvements’ to satisfy The Daniel Ball test, it will

still be considered 1 navigable water of the United

States.

(1926) United States v. Utah, 283 U.S: 64 (1931) and Utah v.

United States, 403 U.S. 9 (1971), to determine which

waterbodies are “traditional navigable waters.” Guidebook, app.

D (2007) (Appendix D is titled Legal Definition of “Traditional

Navigable Waters”). The relevant inquiry for purposes of CWA

jurisdiction, however, must be whether Congress had authority

over the water in question pursuant to the Commerce Clause.

This was not the issue in Holt State Bank or the Utah cases. In

those cases, the controversy focused on whether the respective

water features were navigable for purposes of deciding if their

beds fell within state or federal ownership under the “equal

footing” doctrine—wholly irrelevant to questions of CWA

jurisdiction in light of how Justices Scalia and Kennedy

perceived ‘'NWs in Rapanos.

23

Consequently, reading The Daniel Ball and

Appalachian Electric together, waterbodies that have

traditionally been within the federal government’s

authority—the “navigable waters of the United

States”’—are those waterbodies that:

e Support the customary modes of travel on the

water (1.e., boat traffic);

e Are, were, or with reasonable improvements could

be used as commercial highways that transport

goods; and

e Form in their ordinary condition by themselves, or

by uniting with other waters, a continued highway

over which commerce is or may be carried on with

other States or foreign countries.

Thus, whether a waterbody supports boat traffic—

a component of making it navigable-in-fact—does not

end the TNW inquiry. Such a feature may not qualify

as a TNW unless it also serves as part of a highway of

commerce that is interstate. In other words, a

“navigable-in-fact” waterbody is not a TNW if it does

not also form in its ordinary condition, or by uniting

with other waters, a continued highway over which

commerce is or may be carried on with other States or

foreign countries. The Court should grant certiorari

to clarify the important distinction between TNWs,

navigable-in-fact waters, and waters subject to Corps

authority under the CWA.

24

Ill. THIS COURT SHOULD APPLY THE RULE

OF LENITY TO RESOLVE AMBIGUITIES ON

THE MEANING OF STATUTORY

“NAVIGABLE WATERS.”

In the CWA, Congress defined “navigable waters”

as “the waters of the United States.” 33 U.S.C.

§1362(7). It failed, however, to provide a definition of

“waters of the United States.” As the Court has

recognized, the legislative history of the CWA clarifies

that it reaches more than TNWs. Supra p. 12. The

extent of the reach, however, is far from apparent. As

shown in Parts I and II, there no clear understanding

of when wetlands and nonnavigable waters are or are

not “water of the United States.” The agencies have

failed to develop a new regulation that clearly defines

the term even after five of the Justices suggested that

such a regulation is necessary. Rapanos, 547 U.S. at

726, 757-58, 811-12 (Scalia, J., plurality opinion;

Roberts, C.J., concurring opinion; Breyer, J.,

dissenting opinion). Furthermore, the courts cannot

even agree on the proper test for determining if a

geographic feature is a “water of the United States.”

Supra, pp. 4-10. Yet, three people are in jail for

knowingly discharging pollutants from a point source

into waters of the United States without a permit. 33

U.S.C. §§ 1311, 1319(c).

Because the definition of “navigable waters” as

“waters of the United States” is imprecise and

because the agencies’ regulations have done little to

clarify the meaning, the court below should have

construed any ambiguity in favor of the defendants.

25

As this Court recently explained: “The rule of

lenity requires ambiguous criminal laws to be

interpreted in favor of the defendants subjected to

them.” United States v. Santos, 128 S.Ct. 2020, 2025

(2008) (plurality opinion). Two policies serve as the

basis for the rule of lenity. First, it serves to protect a

person’s right to fair warning: “Application of the rule

of lenity ensures that criminal statutes will provide

fair warning concerning conduct rendered illegal ....”

Liparota v. United States, 471 U.S. 419, 427 (1985),

Santos, 128 S. Ct. at 2025 (“[N]o citizen should be

held accountable for a violation of a statute whose

commands are uncertain, or subjected to punishment

that is not clearly prescribed”). Second, because of the

“seriousness of criminal penalties, and because

criminal punishment usually represents the moral

condemnation of the community, legislatures and not

courts should define criminal activity.” United States

v. Bass, 404 U.S. 336, 548 (1971) (internal citations

omitted); Santos, 128 S. Ct. at 2025 (explaining that

application of the rule “places the weight of inertia

upon the party that can best induce Congress to

speak more clearly and keeps courts from making

criminal law in Congress's »tead”).

Even after examining the language of the CWA,

its structure, and legislative history, uncertainty

remains over whether Congress intended to extend

the scope of the CWA to the wetlands on the

Petitioner's property. This is illustrated by the

District Court’s desire to have “some clue as to what

might be factors that could be considered in

determining whether there is a significant nexus

between the wetland and navigable body of water, in

fact.” Pet. at 10.

26

Principles of fairness require this Court’s review to

ensure that any ambiguities concerning whether the

wetlands at issue are within the scope of the CWA be

resolved in Petitioners’ favor.

CONCLUSION

For all of the foregoing reasons, the petition

should be granted.

July 7, 2008

Respectfully submitted,

DUANE J. DESIDERIO ROBIN S. CONRAD

THOMAS J. WARD* AMAR D. SARWAL

JEFFREY B. AUGELLO NATIONAL CHAMBER,

NATIONAL ASSOCIATION LITIGATION CENTER, INC.

OF HOME BUILDERS 1615 H STREET, N.W

1201 15» Street, NW WASHINGTON, D.C. 20062

Washington, D.C. 20005 (202) 463-5337

(202) 266-8200 -

*Counsel of Record

App. !

APPENDIX A

Cases in which NAHB has appeared as an amicus

curiae or “of counsel” before this Court include:

Agins v. City of Tiburon, 447 U.S. 255 (1980); San

Diego Gas and Elec. Co. v. City of San Diego, 450 U.S.

621 (1981); Williamson County Regl Planning

Comm'n v. Hamilton Bank, 473 U.S. 172 (1985);

MacDonald, Sommer & Frates v. Yolo County, 477

U.S. 340 (1986); First English Evangelical Lutheran

Church v. Los Angeles County, 482 U.S. 304 (1987);

Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987);

Pennell v. City of San Jose, 485 U.S. 1 (1988); Yee v.

City of Escondido, 503 U.S. 519 (1992); Lucas v. S.C.

Coastal Council, 505 U.S. 1003 (1992); Dolan v. City

of Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

Chapter of Cmtys. for a Greater Ore., 515 U.S. 687

(1995); Suittum v. Tahoe Reg'l Planning Agency, 520

U.S. 725 (1997); City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999); Solid Waste

Agency of N. Cook County v. U.S. Army Corps of

Eng’rs, 531 U.S. 159 (2001); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Franconia Assocs. v.

United States, 536 U.S. 129 (2002); Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Regl Planning Agency, 535

U.S. 302 (2002); Borden Ranch P’ship v. U.S. Army

Corps of Eng'rs, 537 U.S. 99 (2002); City of Cuyahoga

Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188

(2003); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe

of Indians, 541 U.S. 95 (2004); San Remo Hotel, L.P.

v. City and County of San Francisco, 545 U.S. 323

(2005); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528

(2005); Kelo v. City of New London, 545 U.S. 469

(2005); S.D. Warren Co. v. Me. Bd. of Envitl. Prot., 547

App. 2

U.S. 370 (2006); Rapanos uv. United States, 547 U.S.

715 (2006); John R. Sand and Gravel Co. v. United

States, 128 S.Ct. 750 (2008); and Summers v. Earth

Island Inst., No. 07-463, cert. granted, 128 S.Ct. 1118

(2008).