TEAM NUMBER: 72

*MEASURING BRIEF

C.A. No. 11-1245

IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

____________________________

STATE OF NEW UNION,

Apellant and Cross-Appellee,

V.

UNITED STATES,

Appellee and Cross-Appellant,

V.

STATE OF PROGRESS.

Appellee and Cross-Appellant.

____________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW UNION

____________________________

BRIEF FOR THE APPELLANT AND CROSS-APPELLEE, NEW UNION

____________________________

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TABLE OF CONTENTS

page TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. The District Court incorrectly granted summary judgment to the United States on standing

because New Union is injured because five percent of the Imhoff Aquifer is located within its regulatory jurisdiction, because the dumping of the slurry could injure the health and well-being of its citizens, and because is not barred from challenging the Army Corps of Engineers’ (the Corps’) jurisdiction under the Clean Water Act (CWA) by its failure to object to the Environmental Impact Statement (EIS) under the National Environment Policy Act (NEPA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 A. As a State, New Union has a sovereign interest in enforcing the regulatory scheme that the

New Union Department of Natural Resources has created for its groundwater, and demonstrates an injury to this interest by showing that decisions made by the Corps regarding interstate aquifers harm New Union’s ability to regulate its groundwater . . . . 8

B. Additionally, the state of New Union has standing because it has shown injury to its quasi-sovereign interest in both the physical and economic health and welfare of its citizens sufficient to challenge the Corps’ actions under a theory of parens patriae, as well as the traceability and redressabilty requirements of standing . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. Finally, New Union is not time-barred from challenging the permit due to lack of a challenge of the EIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II. Lake Temp is subject to the jurisdiction of the Clean Water Act (CWA) since it is a natural

lake that holds water eighty percent of the time covering up to several square miles, is navigable in fact, and has been used by interstate duck hunters and bird watchers for over a hundred years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. Lake Temp fits the Supreme Court’s definition of “waters of the United States” and

consequently the description of “navigable” under section 328.3(a)(1) of the CWA because it is a natural geographic feature that is ordinarily described as a lake, contains water eighty percent of the time, and is navigable in fact . . . . . . . . . . . . . . . . . . . . . . . . 14

B. Lake Temp is subject to the jurisdiction of the CWA as “waters of the United States” under section 328.3(a)(1) as well as “all other waters” that is “susceptible to use in interstate commerce” and may be affected by degradation of which under sections 328.3(a)(3) since it is traditionally used by hundreds if not thousands of interstate duck hunters and bird hunters without active interruption from the Department of Defense (DOD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

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III. Under the Clean Water Act Section 404, the Corps’ does not have jurisdiction to issue a permit to the Department of Defense to discharge a slurry consisting of toxic spent munitions into Lake Temp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 A. This Court should review the Corps’ interpretation of fill material in this case de novo because the Corps has a substantial stake in the permit applicant’s affairs . . . . . . . . . . . . . 22

1. Giving the Corps Chevron deference would be unconstitutional . . . . . . . . . . . . . . . . 24 2. The Corps should not receive deference because Congress did not intend to give the

Corps Deference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 B. The Corps’ interpretation of the fill regulation is impermissible under section 404 of the

CWA because the DOD discharge is a toxic pollutant and the discharge is not being used for the purpose of acting as fill material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

C. The Corps’ decision that the DOD discharge constituted fill material is as an impermissible interpretation of the fill regulation because the material is toxic . . . . . . 29

IV. The decision that the Corps had jurisdiction, through the EPA’s acquiescence and the OMB’s determination, was unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

A. Congress did not delegate to the OMB the authority to deny the EPA veto . . . . . . . . . . 33 1. Congress did not give the President the authority to delegate deference to the OMB

because such delegation is too controversial to be implied from a silent statute . . . .33 2. Congressional delegation of deference to the President to defer to an agency, when

Congress already defers to an agency, is unconstitutional under the nondelegation doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 TABLE OF AUTHORITIES United States Supreme Court Cases: Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25, 32 Clinton v. City of New York, 524 U.S. 417, 450 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct. 2458 (2009).. . . . . . 20, 28, 32 Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167 (2000) . . . .11, 12 Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Gibson v. Berryhill, 411 U.S. 564 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) . . . . . . . . . . . . . . . . . . . . . . .17 Lujan v. Defenders of Wildlife, 504 U.S. 555 (2007) . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 10 Massachusetts v. U.S. Environmental Protection Agency, 549 U.S. 497 (2007) . . . . . . . . . . . . .10 McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963) . . . . . . . . . . 26 Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354 (1988) . . . . . . . . . . .22 Missouri v. Illinois, 180 U.S. 208 (1901) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Pierce v. Underwood, 487 U.S. 552 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Rapanos v. United States, 547 U.S. 715 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) . . . . . . . . . . . . . . . . . . . . . .13 Raleigh & Galston R. Co. v. Reid, 13 Wall. 269 (1872) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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Sierra Club v. Morton, 405 U.S. 727 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Skidmore v. Swift & Co., 323 U.S. 134 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Snapp v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10 Solid Waste Agency of Northern Cook County v. U.S.C.O.E., 531 U.S. 159 (2001) . . . . 15, 16, 17 Tumey v. Ohio, 273 U.S. 510, 523 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 United States v. Mead Corp., 533 U.S. 218 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 29, 33 United States Court of Appeals Cases: Alaska v. U.S. Department of Transportation, 868 F.2d 441 (D.C. Cir.1989) . . . . . . . . . . . . . .8, 9 Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d 822 (9th Cir. 2009) . . . . . . . . . . 21, 22, 23, 26 Buono v. Norton, 371 F.3d 543 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Fontana v. Caldera, 160 F. Supp. 2d 122 (D.D.C. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Florida v. Weinberger, 492 F.2d 488 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Indep. Petroleum Ass'n of Am. v. DeWitt, 279 F.3d 1036 (D.C. Cir. 2002) . . . . . . . . . . .22, 23, 27 Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272 (D.C. Cir. 1996) . . . . . . .22 Mesa Air Group, Inc. v. Department of Transp., 87 F.3d 498 (D.C. Cir. 1996) . . . . . . . . . . . . . 23 National Fuel Gas Supply Corp. v. Federal Energy Regulatory Commission, 811 F.2d 1563 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Ohio v. U.S. Dept. of Transp., 766 F.2d 228 (6th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . .8,9 Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Transohio Savings Bank v. Director, Office of Thrift Supervision, 967 F.2d 598 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Utah ex rel. Div. of Parks and Recreation v. Marsh, 740 F.2d 799 (10th Cir. 1984) . . . . . . . . . 17 West Virginia v. EPA, 362 F.3d 861 (D.D.C. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 9 Constitutional Provisions: U.S. CONST. art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 U.S. CONST. art. III, §2, cl.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 U.S. CONST. art. I, § 8, cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Federal Statutes: 5 U.S.C. § 552 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 5 U.S.C. § 702 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1291 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 33 U.S.C. § 1251(a) (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 33 U.S.C. § 1311(a) (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 33 U.S.C. § 1342(a) (2006) . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 13, 20 33 U.S.C. § 1344(a) (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 20, 27 33 U.S.C. § 1344(c) (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 33 U.S.C. § 1370 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 42 U.S.C. § 4332 (C) (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 13

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Regulations: 33 C.F.R. § 328.3(a)(1) (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 14, 17 33 C.F.R. § 328.3(a)(3) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 19 40 C.F.R. § 232.2 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 12,088 Fed. Reg. 47,707 (Oct. 13, 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 31 576 Fed. Reg. 24,480 (proposed Apr. 26, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Legislative Materials: S. Rep. No. 92-414, p. 7 (1971), U.S. Code Cong. & Admin. News 1971, pp. 3668, 36 . . . . . . 28 Secondary Sources: Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 Cornell J.L. & Pub. Pol’y 203, 204, 234-285 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Introduction and Mission, U.S. Army Corps of Engineers (2011), available at http://www.usace.army.mil/CEMP/Econ/Pages/IntroductionMission.aspx . . . . . . . . . . . . . . . . .25 Hamilton Federalist Paper 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 William N. Eskridge, Jr. et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 1020-21 (3d ed.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

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STATEMENT OF JURISDICTION

Plaintiffs brought suit in the United States District Court for the District of New Union,

and the judgment of that court was entered on June 2, 2011. The district court’s grant of

summary judgment is a final order, and the State of New Union and the State of Progress each

filed a Notice of Appeal. This Court has appellate jurisdiction to review the judgment pursuant

to 28 U.S.C. § 1291 (2006), which grants court of appeals jurisdiction of appeals from all final

decisions of the district courts of the United States.

STATEMENT OF THE CASE

Procedural History

This case was initiated when the State of New Union brought the case in the United

States District Court for the District of New Union. New Union sought review under 28 U.S.C.

§ 1331 and the Administrative Procedure Act (APA), 5 U.S.C. § 702, of a permit issued by the

Secretary of the Army, acting through the U.S. Army Corps of Engineers (COE), under the

authority of Section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344, to the U.S.

Department of Defense (DOD) to discharge a slurry of spent munitions into Lake Temp. The

State of Progress intervened, and New Union, the United States, and the State of Progress filed

motions for summary judgment.

The District Court issued an order on June 2, 2011 in Civ. 148- 2011, granting summary

judgment for the United States and Progress, and denying New Union’s motion for summary

judgment. The District Court ruled that New Union did not have standing, that the COE has

jurisdiction to issue a Section 404 permit for the addition of fill to Lake Temp because Lake

Temp is a navigable water and the slurry is fill material, and that OMB’s dispute resolution

between the EPA and the COE did not violate the CWA. Following the issuance of the order,

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the State of New Union and the State of Progress each filed a Notice of Appeal in the United

States Court of Appeals for the Twelfth Circuit.

Statement of the Facts

Lake Temp is an oval-shaped body of water that directly collects water from an eight

hundred square mile watershed. R. at 3-4. Lake Temp holds water eighty percent of the time,

and is up to three miles wide and nine miles long during rainy seasons on wet years. R. at 3-4.

There is no outlet for the Lake. R. at 4. The Department of Defense (DOD) has not taken any

measures restricting public access to the Lake besides posting signs warning that entry was

illegal since 1952 when the Lake became part of a military reservation. R. at 4. Hundreds to

thousands of people have used Lake Temp for duck hunting and bird watching for at least the

past one hundred years. R. at 4. Approximately twenty-five percent of the duck hunters and bird

watchers travel to Lake Temp from outside of Progress. R. at 4. There are defined trails as well

as rowboats and canoe marks to and from the Progress state highway to the Lake. R. at 4.

Although Lake Temp is located wholly within the State of Progress, it is near the state’s

border with New Union and surface water flows into Lake Temp partially from watershed of

mountains located within New Union. R. at 4. Additionally, the Imhoff Aquifer is located

beneath Lake Temp, and five percent of the aquifer is within New Union’s boundaries. R. at 4.

Although not currently using the aquifer, Dale Bompers, a New Union citizen who owns,

operates, and resides on a ranch above the Imhoff Aquifer in New Union, claims that the value of

his ranch will be diminished if the aquifer is contaminated. R. at 6. The State of New Union

utilizes a permitting system through the New Union Department of Natural Resources to regulate

the withdrawal of groundwater from state aquifers. R. at 7.

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DOD plans to construct a facility on the shore of Lake Temp to receive and prepare a

wide variety of munitions for discharge into the lake. R. at 4. The munitions will be mixed with

chemicals to make them not explosive, then ground and mixed with water to make slurry. R. at

4. The slurry will be sprayed from a movable-port pipe, and the COE will continually grade the

edges of the new lakebed so that the watershed from the mountain will flow into it. R. at 4. The

discharge of slurry would elevate the bottom of Lake Temp. R. at 8.

STATEMENT OF THE ISSUES

I. Whether the District Court incorrectly granted summary judgment for the United States when

it ruled that New Union did not have standing under either its sovereign or quasi-sovereign

interests in preserving a state regulatory scheme and protecting the health and well-being of

its citizens?

II. Whether Lake Temp is a “water of the United States” subject to the jurisdiction of the Clean

Water Act when it is a natural body of water that holds water eighty percent of the time and

covers up to several square miles during wet seasons, is commonly described as a lake, is

navigable in fact, and has been used by hundreds to thousands of interstate duck hunters and

bird watchers for over a hundred years?

III. Whether the Corps has jurisdiction to issue a permit under CWA section 404 for the DOD’s

discharge of a slurry consisting of toxic spent munitions into Lake Temp, when the slurry

would elevate the bottom of Lake Temp?

IV. Whether the Corps should receive Chevron deference in its determination that the DOD

qualified for a CWA section 404 permit, when the EPA had the purpose of vetoing the

permit, the Office of Management and Budget (OMB) told the EPA to stop pursuing the

veto, and the EPA acquiesced in OMB’s decision?

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SUMMARY OF THE ARGUMENT

This court should reverse the District Court’s grant of summary judgment for the United

States ruling that New Union had not demonstrated standing. New Union is the proper party to

bring the suit to protect both its sovereign and quasi-sovereign interests. First, New Union

possesses a sovereign interest in utilizing its state regulatory scheme to protect its groundwater

from pollution. New Union has demonstrated injury to this interest, and meets the lenient test

for standing granted to states that occupy a special position when seeking to protect their

sovereign interests. Next, New Union has also demonstrated an injury to its quasi-sovereign

interests in protecting the health and well-being of its citizens, by showing injury to Dale

Bompers, as well as New Union citizens that use Lake Temp for recreational purposes.

Furthermore, New Union is not time-barred from filing the suit, because suits filed under the

Clean Water Act (CWA) are not limited by failure to challenge an Environmental Impact

Statement (EIS) under the National Environmental Policy Act (NEPA).

Additionally, Lake Temp is a “navigable” “water of the United States” because it is a

natural, relatively permanent, standing geographic feature that is ordinarily described as a lake

and is navigable in fact. Lake Temp is a traditionally “navigable water” not subject to the

significant nexus analysis for wetlands and sand and gravel pits. Lake Temp is well within the

description of water bodies that have traditionally been held navigable because of use by

interstate travelers. Reviewing the facts and drawing all inferences in favor of New Union, the

reasonable fact-finder would determine that the 12th Circuit was correct in holding that Lake

Temp is “navigable” and is subject to regulation by the CWA. Therefore the DOD’s proposed

action to discharge slurry containing toxic, spent munitions into the Lake requires a permit

pursuant to the CWA.

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Under the CWA section 404, the Corps does not have jurisdiction to issue a permit to

the DOD to discharge slurry consisting of toxic spent munitions into Lake Temp. If a

discharge qualifies as both a pollutant under section 402 of the CWA and as a fill material

under section 404, only a section 404 permit is required. Under a regulation coauthored by

the EPA and the Corps (the fill regulation), material placed in the waters of the United States

is fill material when it “[c]hang[es] the bottom elevation of any portion of a water of the

United States,” so long as the material is not “trash or garbage.” The Corps does not receive

Chevron deference when interpreting fill material in the present action because it would be

unconstitutional under the due process clause, and Congress did not intend on deferring to

the Corps, when part of its mission was to serve the DOD, which was the permit applicant.

The Corps’ interpretation of fill material is an impermissible interpretation of the fill

regulation, and of section 404 of the CWA. The DOD discharge does not qualify as a fill

material under section 404 because it is a toxic pollutant that is not being used for the

purpose of serving as fill material. The DOD discharge of toxic pollutants cannot qualify as

fill material under the fill regulation because they are a more potent pollutant than trash or

garbage, which are not permitted under the fill regulation.

The decision that the Corps had jurisdiction, through the EPA’s acquiescence and the

OMB’s determination, should not get Chevron deference. The EPA has the authority to veto

a section 404 permit. Under Executive Order No. 12,088, the OMB might have authority to

determine whether the EPA vetoes the 404 permit, only if the EPA Administrator asks for

help. In the present action, the EPA refrained from vetoing a section 404 permit after the

OMB intervened, without solicitation, and told the EPA to withdraw its intent to veto the

section 404 permit. The OMB’s determination does not get deference under the Executive

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Order because the EPA Administrator never asked for help. The Corps can only receive

Chevron deference if either Congress intended on deferring to EPA’s acquiescence, or if

Congress delegated to the OMB the authority to decide whether the EPA should refrain from

vetoing a section 404 permit. The EPA acquiescence does not get deference. The EPA veto

is an important safeguard to prevent parties from getting a section 404 permits to get around

requirements attached to section 402 permits. EPA acquiescence does not provide the

safeguard that Congress intended to warrant Chevron deference. Congress did not intend on

giving the OMB deference. Congress did not delegate to the OMB deference explicitly.

Meanwhile, Congress implicitly denied giving the President the authority to delegate

deference to the OMB. Such delegation is too controversial to presume without more

explicit language from Congress. In addition, such delegation would be unconstitutional

under the nondelegation doctrine because it would give the President indirect power over

appropriations.

STANDARD OF REVIEW

Grants of summary judgment are reviewed de novo. Pierce v. Underwood, 487 U.S. 552,

558 (1988). Summary judgment is appropriate if “there is no genuine issue as to any material

fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

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ARGUMENT

I. The District Court incorrectly granted summary judgment to the United States on standing because New Union is injured because five percent of the Imhoff Aquifer is located within its regulatory jurisdiction, because the dumping of the slurry could injure the health and well-being of its citizens, and because is not barred from challenging the Army Corps of Engineers’ (the Corps’) jurisdiction under the Clean Water Act (CWA) by its failure to object to the Environmental Impact Statement (EIS) under the National Environment Policy Act (NEPA).

Rulings that evaluate party standing are reviewed de novo. See Buono v. Norton, 371

F.3d 543, 545 (9th Cir.2004). Federal courts are of limited jurisdiction, and thus federal court

standing is restricted by the “cases” or “controversies” requirement of Article III of the

Constitution. See U.S. CONST. art. III, §2, cl.1. Three elements for standing have emerged,

requiring the litigant to demonstrate standing by showing that (1) it suffered a concrete and

particularized injury that is either actual or imminent (2) that is fairly traceable to the defendant,

and (3) that a favorable decision would redress the injury. See Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (2007); Sierra Club v. Morton, 405 U.S. 727, 734 (1972).

However, the Supreme Court has recognized that states occupy a unique position for the

purposes of invoking federal jurisdiction, and the standing requirements for states differ from

those of a private party. See 504 U.S. 555 at 518 (“[It is] of considerable relevance that the party

seeking review here is a sovereign State and not, as it was in Lujan, a private individual.”);

Snapp v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982); Georgia v. Tennessee Copper Co., 206

U.S. 230, 237 (1907). Specifically, there are three recognized interests that a state may use to

demonstrate standing. See generally, 458 U.S. 592 at 601.

The first is a state’s sovereign interest in exercising power over the individuals and

entities within its jurisdiction. Id. at 601. When asserting an injury to this interest, courts have

used a very lenient standing test, not requiring the strong showing of the elements for private

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individuals defined in Lujan. See, e.g., North Carolina v. EPA, 531 F.3d 896, 915 ((D.C. Cir.

2008).

The remaining two recognized state interests require a demonstration of standing that is

more closely related to the private individual test from Lujan, yet one that still recognizes that

states are unique entities in a standing analysis. The interest relevant to this case allows states to

demonstrate standing through parens patriae, by showing injury to a quasi-sovereign interest.

These quasi-sovereign interests are not clearly defined, and have been broadly construed as “a

set of interests that the State has in the well-being of its populace.” Id. at 602.

New Union has demonstrated the required elements for state standing. It has

demonstrated injury to its sovereign interests in regulating the groundwater located within its

states territory. Furthermore, New Union has demonstrated standing by adequately showing an

injury to its quasi-sovereign interests in protecting the well-being and health of its citizens.

A. As a State, New Union has a sovereign interest in enforcing the regulatory scheme that the New Union Department of Natural Resources has created for its groundwater, and demonstrates an injury to this interest by showing that decisions made by the Corps regarding interstate aquifers harm New Union’s ability to regulate its groundwater.

States occupy a unique position for the purposes of invoking federal jurisdiction, and

States that are seeking standing in a federal court to protect their sovereign interests have not

been subjected to the rigorous requirements of standing set forth in Lujan. In fact, when a state

identifies a direct injury to its regulatory interest under a federal administrative regime such as

the Clean Water Act, other Circuit Courts have rarely performed a restrictive standing analysis,

instead using a test for “concrete adverseness,” in determining if the plaintiff is the proper party

to bring the case. See West Virginia v. EPA, 362 F.3d 861 (D.D.C. 2004); Alaska v. U.S. Dept. of

Transp., 868 F.2d 441, 443-44; Ohio v. U.S. Dept. of Transp., 766 F.2d 228, 232 (6th Cir. 2006);

Florida. v. Weinberger, 492 F.2d 488, 494 (5th Cir. 1974).

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In Ohio v. U.S. Dept. of Transp., Ohio successfully demonstrated standing because its

right to enforce a state statute was harmed by a regulation created by the Department of

Transportation that preempted the state statute. See 766 F.2d at 232. The court looked for

sufficient “concrete adverseness” to demonstrate standing, without devoting great analysis to the

causation and redressability requirements of Lujan. Id. Furthermore, the court found injury

suitable for standing in West Virginia v. EPA, when the state argued that federal budget

reductions had lead to an increased difficulty for the state in creating a State Implementation

Plan under the Clean Air Act. See 362 F.3d at 868. Additionally, in Alaska v. U.S. Department

of Transportation, the court acknowledged that when a federal regulation affected a state

regulatory regime, this resulted in an injury sufficient for standing under Article III requirements.

868 F.2d at 444. The rigor of the standing analysis in each of these cases was drastically lower

because the state was suing to protect its sovereign interests.

New Union has demonstrated sufficient “concrete adverseness” because the Corps’

decisions threaten the state’s independent efforts to regulate and protect its groundwater from

environmental harm. New Union is seeking to protect its sovereign interests in regulating its

groundwater and should be subjected to a less demanding test for standing. Reflecting a

longstanding tradition, regulation and protection of groundwater is a duty that is generally left to

the states under the Clean Water Act. See 33 U.S.C. § 1370 (2006) (“nothing in this chapter

shall be construed as impairing or in any manner affecting any right or jurisdiction of the States

with respect to the waters (including boundary waters) of such States.”). Thus, State interests

can be harmed when a federal law threatens the State’s independent efforts to regulate an

environmental harm.

xv

New Union has created a regulatory scheme through the New Union Department of

Natural Resources that acts to ensure that groundwater is not depleted and to allow for

withdrawals of groundwater using a permitting system. (R. at 6). New Union suffers an injury to

this identified regulatory duty when the Corps’ actions impact New Union’s ability to effectively

regulate its groundwater. Since the Imhoff Aquifer is located beneath both Progress and New

Union near the border of the two states, actions that may potentially affect the groundwater are

of interest to the state. (R. at 6.) The pollutants that the Corps will allow to be dumped onto the

primarily alluvial lake bottom are all listed as hazardous. If not allowed to challenge the Corps’

jurisdiction New Union would be left powerless to protect its groundwater, rendering its state

regulatory system futile.

B. The state of New Union has standing under a theory of parens patriae because it has shown injury to its quasi-sovereign interest in both the physical and economic health and welfare of its citizens sufficient to challenge the Corps’ actions.

In order to maintain standing in a parens patriae action, a state must have an injury

separate from that of other private parties, or a quasi-sovereign interest. See Massachusetts v.

EPA, 549 U.S. 497 (2007); Snapp. v. Puerto Rico, 458 U.S. 592, 607 (1982). These quasi-

sovereign interests generally fall into two non-exhaustive categories as either an interest in the

well-being and health of its citizens or an interest in not being discriminatorily denied its position

in the federal system. 458 U.S. 592 at 605. There is no set standard as to how many people

within a state’s population must be affected by the injury during a challenge to standing. See

Lujan v. Defenders of Wildlife, at 581 (“While it does not matter how many persons have been

injured by the challenged action, the party bringing suit must show that the action injures him in

a concrete and personal way.”) (Justice Kennedy, concurring); 458 U.S. 592 at 607.

Additionally, the injury demonstrated only needs to be to the individual, and it is not necessary to

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prove beyond a scientific doubt injury to the environment. See Friends of the Earth v. Laidlaw

Envtl. Services (TOC), Inc., 528 U.S. 167 (2000).

The Court in Georgia v. Tennessee Copper Co., stated that in a quasi-sovereign capacity,

“the State has an interest independent of and behind the titles of its citizens in all the earth and

the air within its domain. It has the last word as to whether its mountains shall be stripped of

their forests and its inhabitants shall breathe pure air.” 206 U.S. 230, 237 (1907). Reflecting this

state interest independent of citizens, in Massachusetts v. EPA, the Supreme Court ruled that

Massachusetts had demonstrated standing, despite the fact that the climate-change risks in that

case were widely shared, and the timing and severity of the injury could not be precisely

identified 549 U.S. 497 (finding standing for the state of Massachusetts to challenge the EPA’s

decision to not regulate greenhouse gas emissions from new motor vehicles under the Clean Air

Act.). Other states have met standing requirements when the health and comfort of its

inhabitants was threatened. See, e.g., Missouri v. Illinois, 180 U.S. 208, 241 (1901) (where

Missouri sought to enjoin the defendants from polluting an interstate river).

As Georgia and Massachusetts in previous state standing cases, New Union is in a special

position to seek standing in a federal court to represent the well-being of its citizens. Utilizing

the standard developed in Friends of the Earth v. Laidlaw, the injury demonstrated must be to the

individual, and not to the environment, thus scientific certainty of environmental harm is not

required. New Union has presented circumstantial evidence showing that if the permit is

granted, contaminated water will enter the Imhoff Aquifer. (R. at 6). Although New Union was

not able to identify exactly when and how severe the pollution will be when it enters the aquifer,

this is because the timing and severity is based on several factors, and the rate and direction of

flow of groundwater in the aquifer and the top and bottom elevations of the aquifer throughout

xvii

its expanse are presently unknown. (R. at 6). Furthermore, the ability to collect more

information about the pollution of the groundwater lies directly in the hands of the COE, and the

agency does not argue that it would deny the state the ability to collect more information on the

pollution. (R. at 6).

In the standing analysis, it is not injury to the environment that must be demonstrated, but

injury to the individual. See Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc.,

528 U.S. 167 (2000). The aquifer is located directly under the property of one of New Union’s

citizens’ homes and place of business, and protecting its citizens’ interest in having unpolluted

access to the state’s share of the Imhoff Aquifer certainly falls within the category of quasi-

sovereign interests that the Court has addressed in previous cases. Although Dale Bompers has

not yet applied for a permit to access the water from the aquifer, this does not eliminate the

substantial interest that the state of New Union has in ensuring that its citizens have access to

safe, unpolluted groundwater.

Additionally, Lake Temp is located very near to the border of the two states, and thus

pollution of the lake has great potential for harming the citizens within the state of New Union.

Any activity that occurs on the lake has the potential to affect New Union, as evidenced by the

interstate travel of migratory birds, hunters, and birdwatchers that have been visiting Lake Temp

from surrounding states for years. The newly constructed facility, as well as the movable multi-

port pipe and continual grading of the edges of the lakebed all create an aesthetic injury to

recreational users of the lake coming from New Union.

C. Finally, New Union is not time-barred from challenging the permit due to lack of a challenge of the EIS.

NEPA requires that a federal agency complete an environmental impact statement (EIS)

for all major federal actions that impact human health. See 42 U.S.C. § 4332 (C). The statute

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provides an opportunity for litigants to challenge the EIS during the planning phase of a

government action. A few courts have barred a litigant from later challenging an agency’s EIS

when they did not provide public comment. However, a challenge to an EIS created under

NEPA affords a procedural and not a substantive right. See Robertson v. Methow Valley Citizens

Council, 490 U.S. 332 (1989) (noting that NEPA protects against uninformed decisions, not

unwise ones). Although a litigant may potentially be barred from future NEPA challenges, this

does not bar the litigant from challenging action that violates other federal statutes. Therefore, a

lack of challenge to NEPA at the planning stage of the action does not bar New Union from

challenging the jurisdiction of the Corps’ to issue the permit under the Clean Water Act and the

Administrative Procedure Act.

II. Lake Temp is subject to the jurisdiction of the Clean Water Act (CWA) since it is a natural lake that holds water eighty percent of the time covering up to several square miles, is navigable in fact, and has been used by interstate duck hunters and bird watchers for over a hundred years

The CWA makes it unlawful for anyone to discharge a pollutant, dredged or fill material

into “navigable waters” without a permit. 33 U.S.C. §§ 1342 &1344. “Navigable waters” is

defined as “waters of the United States, including the territorial seas.” U.S.C. § 1362 (7).

“[W]aters of the United States” means “[a]ll waters which are currently used, or were used in the

past, or may be susceptible to use in interstate or foreign commerce” under § 328.3(a)(1). 33

C.F.R. § 328.3(a)(1) (2011). Additionally, “waters of the United States” also includes “all other

waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats,

sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the

use, degradation or destruction of which could affect interstate or foreign commerce.” 33 C.F.R.

§ 328.3 (a)(3) (2011). The issue in contention is whether Lake Temp constitutes a “water of the

United States” considering that: a) it is a natural, large, navigable in fact, semi-permanent

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intrastate lake, and b) it supports interstate duck hunting and bird watching activities despite that

it occurs on DOD property. Viewing all facts and drawing all inferences in favor of Progress, a

reasonable jury would find that Lake Temp is a “navigable” “water of the United States” subject

to the jurisdiction of the CWA.

A. Lake Temp fits the Supreme Court’s definition of “waters of the United States” and consequently the description of “navigable” under section 328.3(a)(1) of the CWA because it is a natural geographic feature that is ordinarily described as a lake, contains water eighty percent of the time, and is navigable in fact.

The plurality1 in Rapanos v. United States has determined the scope of “waters of the

United States” to include “relatively permanent, standing or continuously flowing bodies of

water ‘forming geographic features’ that are described in ordinary parlance as ‘streams,’ ‘oceans,

rivers, [and] lakes.” Rapanos v. United States, 547 U.S. 715, 739, 757 (2006) (plurality opinion)

(citing Webster’s New International Dictionary 2882 (2d ed. 1954)) (remanding the case to

determine whether ditches or drains near wetlands were “waters of the United States” in the

ordinary sense of a establishing a relatively permanent flow, and whether the wetlands

established a continuous surface connection to nearby ditches or drains). The Rapanos plurality

stated that “relatively permanent waters” “do not necessarily exclude streams, rivers, or lakes

that might dry up in extraordinary circumstances, such as drought . . . [or] seasonal rivers, which

contain continuous flow during some months of the year but no flow during dry months . . . .”

547 U.S. at 733 n.5.

Additionally, wetlands with a “continuous surface connection” or a “significant nexus” to

“waters of the United States” are also covered by the CWA. 547 U.S. at 742; see also Solid 1 Although Progress and the United States may argue that the Rapanos plurality definition of “waters of the United States” is not dispositive, the EPA and COE’s Draft Guidance on Identifying Waters Protected by the Clean Water Act is instructive in affirming the validity of this definition, stating that both the EPA and the COE “continue to believe, as expressed in previous guidance, that it is most consistent with the Rapanos decision to assert jurisdiction over waters that satisfy either the plurality or the Justice Kennedy standard, since a majority of justices would support jurisdiction under either standard." Draft Guidance on Identifying Waters Protected by the Clean Water Act, 576 Fed. Reg. 24,480 (proposed Apr. 26, 2011).

xx

Waste Agency of Northern Cook County v. U.S.C.O.E., 531 U.S. 159, 172 (2001) [hereinafter

SWANCC] (holding that a water or wetland must have a significant nexus to waters that are

“navigable in fact or that could reasonably be so made.”) However, the definition of “relatively

permanent” does exclude “ordinarily dry channels through which water occasionally or

intermittently flows . . . or transitory puddles or ephemeral flows of water.” 547 U.S. at 733.

Similarly, the non-navigable, isolated, and wholly intrastate ponds do not contain a significant

nexus to “navigable waters.” 531 U.S. at 171-72.

While Lake Temp is an intrastate body of water like those in Rapanos and SWANCC, it is

intrinsically different from them as it is ordinarily described and known as a traditional “water of

the United States.” Specifically, the Rapanos plurality distinguished the wetlands in question

from being fundamentally different from “waters of the United States” since it interpreted the

CWA to cover primarily “rivers, streams, and other hydrographic features more conventionally

identifiable as ‘waters’ [rather] than the wetlands adjacent to such features.” 547 U.S. at 735.

Like Rapanos, the sand and gravel pits in SWANCC were not considered traditional “waters of

the United States” and thus were subject to the significant nexus test. 531 U.S. at 171-172.

Unlike the wetlands, ditches, and drains in Rapanos and the sand and gravel pits or ponds in

SWANCC, the title of Lake Temp indicates that it is a geographic feature well-recognized and

ordinarily described a “lake.” This alone satisfies the Rapanos definition of a “water of the

United States” as a “relatively permanent, standing” body of water that forms a geographic

feature that is ordinarily known as a lake. 547 U.S. at 757.

Although the Rapanos court remanded the case to determine whether the ditches and drains

in that case established a “relatively permanent flow,” 547 U.S. at 757, Lake Temp is a natural,

relatively permanent body of water different from the sand and gravel pits in SWANCC. The

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SWANCC court refused to extend the CWA to cover man-made pits that were unconnected to

any naturally existing water system and the permanency and size of which depended directly on

seasonal rainfall. 531 U.S. 165-66. Thus while some of the SWANCC pits are permanent, they

are generally of an ephemeral, non-permanent nature. Unlike the pits in SWANCC, Lake Temp

is a naturally existing, large body of water that collects water from an eight hundred square mile

watershed. R. at 3-4. Additionally, Lake Temp contains water eighty percent of the time, and

covers an area of approximately three miles by nine miles at its highest water level. R. at 3-4.

And while the Lake is smaller during dry seasons and may become empty every five years, there

is no question that it contains at least some water during the vast majority of times and thus falls

within the seasonality that the Rapanos plurality found acceptable as part of a relatively

permanent body of water.

Another critical distinction between SWANCC and the present case is that the sand and

gravel pits were not navigable in fact. 531 U.S. at 172 (stating that the CWA has traditional

jurisdiction over waters that were or had been navigable in fact or which could reasonably be so

made). Unlike the pits in SWANCC, Lake Temp has been frequently used for boating and

canoeing as evidenced by boat and canoe marks between the Progress highway and the Lake. R.

at 4. This fact shows that Lake Temp is navigable in fact and is used in accordance to the typical

uses of an ordinary lake. It also shows that that Lake Temp contains at least several feet of water

that further contributes to its permanency as a standing body of water. In addition to being a

natural, relatively permanent large lake, Lake Temp also fits the traditional definition of “waters

of the United States” as it contributes to interstate commerce.

B. Lake Temp is subject to the jurisdiction of the CWA as “waters of the United States” under section 328.3(a)(1) as well as “all other waters” that is “susceptible to use in interstate commerce” and may be affected by degradation of which under sections 328.3(a)(3) since it is traditionally used by hundreds if not thousands of interstate duck

xxii

hunters and bird hunters without active interruption from the Department of Defense (DOD).

The COE defines “waters of the United States” as “[a]ll waters which are currently used,

or were used in the past, or may be susceptible to use in interstate or foreign commerce” under

section 328.3(a)(1). 33 C.F.R. § 328.3(a)(1). Article I, Section 8, clause 3 gives Congress the

power “[t]o regulate Commerce ... among the several States . . . .” U.S. CONST. art. I, § 8, cl. 3.

The “power of Congress to promote interstate commerce also includes the power to regulate the

local incidents thereof, including local activities in both the States of origin and destination,

which might have a substantial and harmful effect upon that commerce.” Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 258 (1964). The test regarding whether a body of

water is used for interstate commerce is whether “the precise object or activity that, in the

aggregate, substantially affects interstate commerce.” SWANCC, 531 U.S. at 173.

Applying this test, SWANCC held that a body of water is not a “water of the United

States” based on the mere presence of migratory birds that may potentially contribute to

interstate commerce (Migratory Bird Rule). 531 U.S. at 173-74. On the other hand, public,

interstate use of an intrastate lake for recreational purposes was a factor in establishing the lake

affected interstate commerce. Utah ex rel. Div. of Parks and Recreation v. Marsh, 740 F.2d 799,

803 (10th Cir. 1984). Marsh held that, in addition to supporting freshwater fishery and

supplying water to out-of-state users, the Utah lake provided “recreationists with opportunities to

fish, hunt, boat . . . [and] appreciate a variety of bird and animal life”—two percent of whom

travel from outside of the state—contributed to interstate commerce and was therefore

“navigable” and subject to the CWA. Furthermore, Congress has Commerce power over

wetlands that are contiguous to intrastate lakes used by interstate travelers for water-related

recreational activities such as swimming. United States v. Byrd, 609 F.2d 1204, 1210 (7th Cir.

xxiii

1979) (holding that recreational use of Lake Wawasee significantly affected interstate commerce

and that “the value of [the lake] depends . . . on the purity of [its] water for swimming, or the

abundance of fish and other wildlife inhabiting them or the surrounding wetland and land

areas.”)

Although Lake Temp is similar to the sand and gravel pits in SWANCC in that they have

both historically attracted birds to stop over during migration seasons, it is unlike SWANCC in

that the Lake historically and currently contributes to interstate commerce. In SWANCC, the

Corps failed to establish evidence that the sand and gravel pits directly contributed to interstate

commerce beyond stating generally that people spend over a billion dollars annually on

recreational activities relating to migratory birds and that proposing to turn the pits into a

municipal landfill is assumed to be commercial in nature. 531 U.S. at 173.

Conversely, the present case is similar to Marsh and Byrd, where swimming, hunting,

and bird-watching activities contributed to interstate commerce. Lake Temp has attracted

hundreds if not thousands of interstate duck hunters and bird watchers for at least the past one

hundred years, over a quarter of who come from outside of Progress. R. at 4. This is supported

by clearly visible trails as well as boats and canoe marks between the Progress state highway and

Lake Temp that are most likely used by the duck hunters and bird watchers. R. at 4. In the case

of Lake Temp, it is easy to determine that duck-hunting and bird-watching substantially sustains

interstate commerce by estimating the Lake’s interstate recreational users’ expenses on traveling,

purchasing hunting gear, outdoor equipment, as well as boats and canoes. This shows that Lake

Temp contributes to historical and current interstate commerce in the hunting and tourism

sectors. The SWANCC court expressed concerns that allowing the gravel and sand pits under the

Migratory Bird Rule would significantly impinge the States’ traditional and primary power over

xxiv

land and water use. Id. at 174. Since Lake Temp clearly hosts interstate commerce in the form

of hunting and tourism, Congress has jurisdiction to regulate the DOD and therefore would not

significantly impinge on a state’s right to regulate its land and water use.

In addition to being a “water of the United States,” Lake Temp also fits the definition of

“all other waters” under the CWA as an “intrastate lake” where the “use, degradation or

destruction of which could affect interstate or foreign commerce.” 33 C.F.R. § 328.3 (a)(3).

Similar to the Byrd court’s concern that filling in wetlands adjacent to Lake Wawasee would

pollute the lake’s water, the DOD’s proposed discharge—toxic, spent munitions and

chemicals—will likely directly pollute Lake Temp’s pristine waters. The fact that several

chemicals are listed as hazardous under CWA section 311 leaves no room to doubt that they will

pollute Lake Temp. R. at 4.

Similar to Byrd, the value of Lake Temp depends on the water’s quality to sustain

swimming, fish, and other wildlife. The proposed action to discharge spent munitions into Lake

Temp would likely reduce the number of birds and therefore negatively impact hunting and

tourism at the Lake. Thus Lake Temp also fits the definition of “all other waters” under the

CWA, where the “use, degradation or destruction of which could affect interstate or foreign

commerce.” 33 C.F.R. § 328.3 (a)(3).

Although Lake Temp’s users ostensibly trespassed onto the DOD’s property, it does not

negate the fact that the Lake generates interstate commerce and is therefore a “navigable water”

that requires federal regulation under the Commerce Clause. Additionally, there is no issue of

trespass in the present case because the public’s use of the Lake is legal via public prescriptive

easement. Specifically, hundreds to thousands of people have used Lake Temp for duck hunting

and bird watching for at least the past one hundred years well before Lake became part of the

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DOD’s reservation in 1952. R. at 4. Moreover, the DOD has not taken any measures restricting

public access to the Lake besides posting signs warning that entry was illegal. R. at 4. Thus the

public’s recreational use of Lake Temp has been continuous, open, and the DOD knows but has

not actively interrupted this use.

III. Under the Clean Water Act section 404, the Army Corps of Engineers does not have jurisdiction to issue a permit to the Department of Defense to discharge a slurry consisting of toxic spent munitions into Lake Temp.

Section 404(a) of the Clean Water Act (“CWA”) grants the Army Corps of Engineers

(“Corps”) the power to “issue permits ... for the discharge of ... fill material.” 33 U.S.C. §

1344(a) (2006). But Section 402 of the CWA grants the Environmental Protection Agency

(“EPA”) authority to “issue a permit for the discharge of any pollutant.” 33 U.S.C. § 1342(a)

(2006). When a discharge qualifies as both fill material and a pollutant, only a Section 404

permit is required. Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 2467

(2009) (“[I]f the Corps has authority to issue a permit for a discharge under § 404, then the EPA

lacks authority to do so under § 402”). Therefore, when determining whether the Corps has

jurisdiction to issue a Section 404 permit for a substance that is a pollutant under Section 402,

the court’s analysis begins and ends at the question of whether the slurry is fill material.

In a regulation (the “fill regulation”) coauthored by the EPA and the Corps, material

placed in the waters of the United States is fill material when it “[c]hang[es] the bottom elevation

of any portion of a water of the United States,” so long as the material is not “trash or garbage.”

40 C.F.R. § 232.2 (2011). Examples of fill material include, “rock, sand, soil, clay, plastics,

construction debris, wood chips, overburden from mining or other excavation activities, and

materials used to create any structure or infrastructure in the waters of the United States.” Id.

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In Coeur, Justice Kennedy provided two ways to invalidate the Corps’ finding that a

substance is a “fill material” subject to a Section 404 permit. Coeur, 129 S. Ct. at 2468. First a

party can claim that the fill regulation, as interpreted, is an impermissible interpretation of

section 404 of the CWA. Id. Second, a party can challenge the legality of the Corps’

interpretation of the fill regulation. Id. Challenging the Corps’ interpretation is especially

demanding if a court finds that Congress delegated to the Corps the authority to determine

whether a particular substance is fill material, giving to the Corps Chevron deference. United

States v. Mead Corp., 533 U.S. 218, 226-27 (2001). Following the Chevron two-step analysis,

courts would defer to the Corps so long as, under the first step, the Corps’ interpretation does not

contradict the regulation or statute, and under the second step, the Corps’ interpretation is

reasonable. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844

(1984). However, the Corps might not have Chevron deference because the Corps has an

interest in the outcome of this case as a subsidiary of the Department of Defense (“DOD”), the

permit applicant. See Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d 822 (9th Cir. 2009).

To determine whether the Corps has jurisdiction to issue a Section 404 permit to the

DOD for the discharge of slurry into Lake Temp—whether the slurry constitutes fill material—

three questions must be addressed. First, should this Court review the Corps’ interpretation of

fill material de novo, with the interpretation being considered to the extent that it is persuasive

under Skidmore, Skidmore v. Swift & Co., 323 U.S. 134, 138 (1944), or should the court extend

Chevron deference to Corps’ interpretation. Second, whether the Corps’ interpretation of the fill

regulation an impermissible interpretation under section 404. Finally, whether the Corps’

interpretation is an impermissible interpretation of the fill regulation. Each are considered in

turn.

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A. This Court should review the Corps’ interpretation of fill material in this case de novo because the Corps has a substantial stake in the permit applicant’s affairs.

Since the Corps is an expert administrative agency that is delegated the task of issuing

permits for the discharge of fill material, 33 U.S.C. § 1344(a) (2006), the Corps ordinarily

receives Chevron deference when interpreting section 404. See Smiley v. Citibank (S. Dakota),

N.A., 517 U.S. 735, 741 (1996) (holding that an expert administrative agency that is delegated a

task by Congress is presumed to have Chevron deference when performing the task). However,

the Corps had an interest in its interpretation of section 404, when it determined that DOD’s

slurry constitutes fill material, because the Corps is a subsidiary of the DOD. This Court should

revoke the Corps’ deference in the present case because: (a) it would be unconstitutional, under

the due process clause, for the Corps to have Chevron deference when it has a substantial interest

in the outcome of the interpretation, and (b) Congress did not intend to defer to the Corps’

interpretation while the Corps has a substantial interest in the outcome of its interpretation.

There is a circuit split as to whether self-interested agency action warrants less judicial

deference. See, e.g., Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d 822, 834 (9th Cir. 2009)

cert. denied, 130 S. Ct. 280 (2009) (holding that an agency’s action does not receive deference

when it has a financial interest in the outcome of the dispute); Indep. Petroleum Ass'n of Am. v.

DeWitt, 279 F.3d 1036, 1040 (D.C. Cir. 2002) (holding that a self-interested agency’s action still

receives deference even when the agency has a financial interest in the outcome of a dispute).

Meanwhile, the Supreme Court has not ruled on the issue, although several justices have been

divided on the issue in dictum. See, e.g., Mississippi Power & Light Co. v. Mississippi ex rel.

Moore, 487 U.S. 354 (1988) (dividing justice Scalia and Brennan over—and not conclusively

resolving—whether agencies should receive Chevron deference for statutory interpretations that

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implicate the scope of their jurisdiction). Although many courts have expressed that self-

interested agency action do not receive Chevron deference, they generally have failed to

enunciate clear and consistent rationales for such a result. See Timothy K. Armstrong, Chevron

Deference and Agency Self-Interest, 13 Cornell J.L. & Pub. Pol'y 203, 204, 234-285 (2004)

(canvassing case law involving agency’s interpretation of its own power, where “a party

aggrieved by [the] agency’s interpretation of a statute or regulation seeks judicial review”).

National Fuel Gas Supply Corp. v. Federal Energy Regulatory Commission found reason to

remove Chevron deference from a self-interested agency action because Chevron deference

would be “inappropriate.” 811 F.2d 1563, 1571-72 (D.C. Cir. 1987). Transohio Savings Bank v.

Director, Office of Thrift Supervision, 967 F.2d 598, 614 (D.C. Cir. 1992), and Indiana Michigan

Power Co. v. Department of Energy, 88 F.3d 1272 (D.C. Cir. 1996) found that agency self-

interest might be a potential factor in determining whether an agency has deference under step

two of the Chevron analysis. Additionally Vilsack 563 F.3d at 834, and Mesa Air Group, 87

F.3d 498 found that an agency should not be given deference when it has a sufficient interest in

the outcome of the interpretation because Congress did not intend on deferring to the agency’s

interpretation in such a circumstance. Vilsack, 563 F.3d at 834; Mesa Air Group, Inc. v.

Department of Transp., 87 F.3d 498, 503-06 (D.C. Cir. 1996). Meanwhile, differing from those

above, DeWitt, 279 F.3d at 1040 held—and Justice Scalia, in Mississippi Power, 487 U.S. 354,

found—that Congress intended on deferring to all self-interested agency’s interpretation and that

such deference is appropriate. DeWitt, 279 F.3d at 1040.

The convoluted precedent involving agency self-interest points to the need of this Court

to provide a clear and non-arbitrary rationale for determining whether the Corps is deserving of

Chevron deference. Two rationales for removing Chevron deference are provided. First, it is

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unconstitutional under the due process clause. Accord National Fuel Gas Supply, 811 F.2d at

1571-72. Second, Congress did not delegate deference to the Corps when it has a sufficient self-

interest in the outcome of a dispute.

1. Giving the Corps Chevron deference would be unconstitutional.

The practical effect of Chevron is to shift interpretive decision-making from courts to an

agency, thereby making the agency the judge. When the agency has a substantial interest in the

outcome of its decision, it becomes the judge in its own cause. One of the age old axioms of

law—from the time of ancient Greece, through Rome, and our common law tradition inherited

from England—is that no one should be a judge in his own trial.2 The principle reaches its

optimal impact when the adjudicating officer has a “direct, personal, [and] substantial pecuniary

interest” in the matter. See Tumey v. Ohio, 273 U.S. 510, 523 (1927). The rationale also extends

to forbid some indirect financial interests. See, e.g., Gibson v. Berryhill, 411 U.S. 564, 578-79

(1973) (holding it unconstitutional for state board of optometry to adjudicate proceedings

seeking to revoke privately employed optometrists’’ licenses, where board was composed of

optometrists who stood potentially to benefit financially from loss of competition from

respondent optometrists). There is a primary distinction between the Corps’ interest in the

present dispute and traditional interests that have created a due process problem: the Corps has

an institutional interest as opposed to a judge that has a personal interest. When the Judicial

Branch, as an institution, has had an interest in a case, such as the breadth of judicial review, it

still adjudicates because there is no better alternative for resolving the dispute.

2    2 COMPLETE WORKS OF ARISTOTLE 1986, 2031 (B. Jowett trans., Jonathan Barnes, ed., 1984) (“most people are bad judges in their own case”); JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT ch. II, para. 13 (1690) (Thomas P. Peardon, ed., 1952) (“One should not be judge in his own cause.”); THE FEDERALIST NO. 10, at 59 (James Madison) (Jacob E. Cooke ed., 1961). (“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”).  

xxx

The Federalist No. 78 (A. Hamilton) (stating that the Judiciary is the least dangerous branch to

review the constitution because it has the power of neither the sword nor the purse). Therefore,

the judicial branch has not faced a similar circumstance to that of the Corps, in which there is an

alternative to the Corps’ self-interested adjudication: the judicial branch can resolve disputes in

interpretation when the Corps has a conflict of interest.

The Corps has a sufficient interest in the outcome of DOD’s permit request to invoke a

due process violation. The Corps consists of military and civilian personnel that support the

nation and the DOD with a range of public works. One of its few mission areas is DOD military

construction. In addition, “one of [its] primary economics missions is to provide guidance and

implement procedures to assure . . . economic analysis performed . . . are in line with

Department of Defense (DOD) . . . mandates.” Introduction and Mission, U.S. Army Corps of

Engineers (2011), http://www.usace.army.mil/CEMP/Econ/Pages/IntroductionMission.aspx.

When the Corps’ personnel and institutional goals are so finely tied to the DOD, it no longer has

the impartiality and disinterestedness that a fair judicial resolution mandates. Those ties call into

question the transparency of the Corps’ rationale for its decision, the accuracy of its decision,

and the integrity of the judicial system. Deferring to the Corps’ interpretation would undermine

public confidence in the government and the judicial system.

2. The Corps should not receive deference because Congress did not intend to give the Corps Deference.

Under Mead, an agency has Chevron deference only if Congress expressed, either

implicitly or explicitly, that it was deferring to the specific agency, the specific action, over the

specific question presented. Mead, 533 U.S. at 226-27. The second rationale for removing the

Corps’ Chevron deference is that Congress never intended on deferring to self-interested agency

action. Although courts have used the second rationale to remove Chevron deference, none have

xxxi

articulated its reason for finding that Congress did not intend on deferring to agencies when they

had a sufficient self-interest. There are three reasons for this Court to presume that Congress

does not defer to self-interested agency action. First, Congress would not have wanted an

agency to be a judge in its own cause because of the issues of impartiality and judicial integrity

that would be raised.

Second, government transparency is greatly valued in our democracy. There is the

constitutional guarantee of a free press, and statutorily, the Freedom of Information Act (FOIA),

5 U.S.C. § 552, establishes further protections of government transparency. See, e.g., Ray v.

Turner, 587 F.2d 1187, 1197 (D.C. Cir. 1978) (holding that an agency must disclose all of its

documents except those that where national security is an issue). This court should presume that

Congress would not have wanted to jeopardize government transparency by deferring to self-

interested agency action, which would undermine the veracity of the stated rationale that

agencies use when coming to a decision. Lastly, there is a presumption that Congress would

only raise a constitutional issue explicitly. McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10, 21-22, (1963) (holding that when one interpretation of a statute presents

constitutional difficulties, courts should only impose it if there has been an affirmative indication

from Congress that it is required). Congress did not explicitly defer to the Corps’s self-interested

interpretations, and those interpretations raise the issue of due process.

The Ninth Circuit recently held that agency self-interest limits deference because it lacks

the same congressional delegation of authority, although it did not provide a rule for determining

when an agency has a sufficient self-interest to remove Chevron deference. Vilsack, 563 F.3d at

834. Alternatively, in DeWitt, two of the three-judge panel held that “given the ubiquity of some

form of agency self-interest . . . a general withdrawal of deference on the basis of agency self-

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interest might come close to overruling Chevron.” DeWitt, 279 F.3d at 1040. Their argument is

the reductio ad absurdum that, from some perspective, agency action is almost always self-

interested, in which case, by rejecting agency self-interested interpretations, we would never

defer to agencies. For example, all agency decisions can be reduced to a question of the scope of

agency jurisdiction, and the agency has an interest in expanding the scope of its jurisdiction.

DeWitt, 279 F.2d at 1040; See Scalia (“[Deference] is necessary because there is no discernible

line between an agency’s exceeding its authority and an agency’s exceeding authorized

application of its authority”).

The Corps’ mission of following DOD mandates and serving the DOD creates a

substantial conflict, which should call into doubt Congress’ delegation of authority to the Corps

in this action. The difficulties involved in distinguishing between an agency interest that

removes deference and an agency interest that keeps deference in tact should not deter this Court

from finding that the Corps’ interest is sufficient to remove Chevron deference in the present

action. When an agency’s institutional interest, expressed as one of its goals, creates a conflict

when interpreting a statute or regulation, the agency should not receive deference. Even when an

agency has an interest in its adjudication, it normally would still understand its institutional

responsibility. However, in the present case, the agency does not have a basis for understanding

how to weigh its normal duties when interpreting a statute to its duty to follow its mission.

B. The Corps’ interpretation of the fill regulation is impermissible under section 404 of the CWA because the DOD discharge is a toxic pollutant and the discharge is not being used for the purpose of acting as fill material.

Section 404 of the CWA provides that the Corps issues permits for the discharge of “fill

material.” 33 U.S.C. § 1344(a) (2006). However, the CWA does not define fill material. Past

case law has illustrated that substances that are not toxic but have an effect on navigation, still

xxxiii

qualify as fill material under section 404, even if the substance is a pollutant under section 402.

The question this case raises is whether a toxic pollutant, the DOD slurry, qualifies as fill

material under section 404. Given the goals of the CWA, and case law, the DOD slurry does not

qualify for a section 404 permit.

The purpose of the CWA is to “to restore and maintain the chemical, physical, and

biological integrity” of the waters of the United States. 33 U.S.C. § 1251(a) (2006). The Acts

drafters stated in a Senate Report: “The use of any river, lake, stream or ocean as a waste

treatment system is unacceptable.” S. Rep. No. 92-414, p. 7 (1971), U.S. Code Cong. & Admin.

News 1971, pp. 3668, 36. In furtherance of its goal, Congress mandated that “the discharge of

any pollutant by any person shall be unlawful,” except in compliance with the CWA’s terms. 33

U.S.C. § 1311(a) (2006).

Justice Ginsberg’s dissent in Coeur raises the issue of whether parties should be

permitted to use a Section 404 permit as a loophole to get around the performance-standards

requirements attached to a section 402 permit, given Congress’ intentions when passing the

CWA. Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct. 2458, 2467 (2009).

However, Justice Breyer’s responds in his concurrence that the concern over the dangers of a

loophole is often unwarranted because the substance being discharged is not waste or toxic—in

Coeur, the substance was crushed rock—and the substance is being used as fill to create a levy or

replace dirt removed from the bottom of a lake. Coeur, 129 S. Ct. at 2464.

The Corps’ interpretation of section 404 still receives persuasive authority on courts,

depending upon, “the thoroughness evident in its consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements, and all those factors which give it power to

persuade, if lacking power to control.” Mead, 533 U.S. at 219 (quoting Skidmore v. Swift & Co.,

xxxiv

323 U.S. 134, 140 (1944)). Even though the Corps has an expertise in dealing with fill material,

this Court should not be persuaded by the Corps’ interpretation because the rationale behind the

Corps’ decision is suspect considering its interest in the present dispute.

Even when the concern over the danger of a loophole is warranted, Justice Breyer

acknowledges that Section 404 permits might be used a loophole, he proceeds by stating there

are two safeguards. Coeur, 129 S. Ct. at 2478. The first safeguard, and the one at issue here is

the following: “it is not the case that any material that has the “ ‘effect of ... [c]hanging the

bottom elevation’ ” of the body of water is automatically subject to § 404, not § 402.” Id.

Unlike Coeur, the DOD might be using a Section 404 permit as a loophole. The DOD

discharge is of a toxic pollutant. The slurry consists of water mixed with spent munitions: liquid

chemicals, semi-solid chemicals, and pulverized metals. The discharge is not being used for the

purpose of acting as a fill, but is a DOD waste that is being disposed of. As a toxic pollutant, the

DOD discharge must not be automatically subject to a Section 404 permit, under the Breyer’s

first safeguard. If the safeguard does not protect against toxic pollutants, then the safeguard

would be toothless and not a safeguard at all.

C. The Corps’ decision that the DOD discharge constituted fill material is as an impermissible interpretation of the fill regulation because the material is toxic.

The fill regulation provides that a discharge is fill material if it “chang[es] the bottom

elevation of any portion of a water of the United States,” so long as the material is not “trash or

garbage.” 40 C.F.R. § 232.2 (2011). Examples of fill material include, “rock, sand, soil, clay,

plastics, construction debris, wood chips, overburden from mining or other excavation activities,

and materials used to create any structure or infrastructure in the waters of the United States.”

Id.

xxxv

The DOD interpretation is entitled to Skidmore deference. However, seeing that it had a

substantial interest in the outcome of the present action, the interpretation should be given little

weight. Moreover, the regulation unambiguously determines that the discharge is not fill

material. The Corps’ interpretation of the fill regulation would therefore not be adopted even if

the Corps had Chevron deference, because it would fail step one of the Chevron analysis: the

interpretation of the regulation contradicts the plain meaning of the regulation.

The DOD discharge would elevate the bottom of Lake Temp. However, there are two

reasons to infer that the DOD discharge is not considered fill material under the fill regulation.

First, the discharge does not qualify as fill material because, under the plain meaning of the fill

regulation, it is as harmful a pollutant as trash or garbage. Fill material under the fill regulation

excludes trash and garbage because they are in essence pollutants and should be regulated by the

EPA. If trash and garbage are excluded, this Court can infer that any substance that is as harmful

a pollutant as trash or garbage should likewise be excluded. For example, if guns were

statutorily excluded from airports, the court would infer that bombs are likewise excluded. The

DOD discharge is as harmful a pollutant as typical trash or garbage, considering it is a toxic

waste, and therefore should be excluded.

Second, the discharge does not qualify as a fill material because it is not a material

derived from excavation activities nor used to create a structure. According to the doctrine of

expressio unius, the inclusion of one thing indicates the exclusion of another. Raleigh & Galston

R. Co. v. Reid, 13 Wall. 269, 270 (1872). The list of examples of fill material all point to non-

toxic material that either come from excavation or is used to create a structure in the waters of

the United States. The DOD discharge is toxic and it bears no relation to the other materials

listed. This Court should infer that the DOD slurry does not qualify as fill material under the fill

xxxvi

regulation. Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) (finding that the express

mention of one thing might exclude all others).

IV. The decision that the Corps had jurisdiction, through the EPA’s acquiescence and the OMB’s determination, was unlawful.

The EPA has the statutory authority to veto a section 404 permit if it finds the discharge

will have “an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery

areas . . . wildlife, or recreational areas.” 33 U.S.C. § 1344(c). In the present action, the EPA

refrained from vetoing a section 404 permit after the Office of Management and Budget (OMB)

intervened, without solicitation, and told the EPA to withdraw its intent to veto the section 404

permit. Under Executive Order No. 12,088 (the “Executive Order”), Fed. Reg. 47,707 (Oct. 13,

1978), the Administrator of the EPA shall resolve an executive agency’s violations of pollution

control standards; but, “if the Administrator cannot resolve the conflict, [he] shall request the

Director of the Office of Management and Budget to resolve the conflict.”

This Court could defer to the decision that the 404 permit was valid only if it finds that it

should defer to the EPA’s acquiescence or that it should defer to the OMB determination.

Meanwhile, this Court can only defer to OMB’s determination if Congress intended to give the

OMB such discretion, U.S. v. Mead Corp., 533 U.S. 218, 226-27 (2001), or if the OMB had

authority under the Executive Order. Under the plain meaning the Executive Order, the OMB

did not have the authority to determine whether the EPA should veto the section 404 permit

because the EPA Administrator never requested assistance from the OMB. The following are

discussed: whether the EPA’s acquiescence should receive deference, and whether Congress

delegated to the OMB the authority to decide whether the EPA should refrain from vetoing a

section 404 permit.

xxxvii

The EPA did not make the decision to refrain from vetoing DOD’s 404 permit when it

had the purpose of vetoing the permit, but refrained because it deferred to the OMB.

Congress delegated to the EPA the authority to veto a section 404 permit. 33 U.S.C. § 1344(c);

Coeur, 129 S. Ct. at 2468. When Congress defers to an agency action, courts defer to the action

as well. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 838 (1984). If

this Court defers to the EPA’s acquiescence, this Court’s review of the EPA’s decision would be

limited to whether the decision was arbitrary or capricious. 5 U.S.C. § 701(a)(2) (2006). Under

the CWA section 404(c) courts would defer to two actions of the EPA: the decision to veto a 404

permit or a decision not to veto a 404 permit.

The EPA’s failure to decide whether to veto a 404 permit, which results in a non-veto,

does not get deference from courts. As described supra, Justice Breyer mentions two important

safeguards to prevent 404 permits from being used as a loophole to get around requirements

attached to 402 permits. Coeur, 129 S. Ct. at 2478. One of the safeguards is that “even where a

matter is determined reasonably to be ‘fill’ and consequently falls within § 404, the . . . EPA may

veto any § 404 plan that it finds [doesn’t meet certain criteria].” The EPA vetoing authority is

necessary to assuring that the CWA is properly followed. See id. When the EPA does not accept

the role of providing a safeguard, courts should not defer to this lapse and allow the safeguard to

be bypassed; rather, courts then must provide a safeguard. See id. An EPA decision not to veto

a 404 permit results in the Corps receiving Chevron deference over its reasoning for providing a

404 permit. When the EPA refrains from making the decision, the courts’ only remedy is to

review the Corps’ decision de novo, thus ensuring that the CWA is properly followed.

The EPA did not make the decision to not veto DOD’s Section 404 permit. The EPA was

intent on vetoing the permit when the OMB intruded and told the EPA to refrain from vetoing.

xxxviii

R. at 9. Subsequently, the EPA did not veto the permit. Id. The EPA was not deciding that the

permit should not be vetoed, rather it deferred to the OMB’s decision. The EPA’s acquiescence

does not provide the safeguard that Justice Breyer warranted; rather it is a masked safeguard that

is truly in the hands of the OMB. Whether the OMB’s decision provided the necessary

safeguard is a different legal question, analyzed infra.

A. Congress did not delegate to the OMB the authority to deny the EPA veto.

The OMB does not have direct statutory authority to decide whether the EPA vetoes a

section 404 permit. However, there is a question of whether the President has deference from

Congress to give OMB the authority to withhold an EPA veto. Arguably, the President, as the

superior of the Administrator of the EPA, would implicitly have deference to decide on an issue,

when the Administrator has deference. And if the President were to have deference, he could

then delegate the deference to the OMB. Shown infra, is that even if the President were to have

deference, Congress unequivocally denies him the right to delegate the deference. Additionally,

such delegation from Congress would be unconstitutional under the nondelegation doctrine.

1. Congress did not give the President the authority to delegate deference to the OMB because such delegation is too controversial to be implied from a silent statute.

Courts find that Congress intends on deferring to an agency’s interpretation when

Congress expresses in the statute, either explicitly or implicitly, that Congress deferred to the

specific agent, the specific type of action, over the specific question presented. Accord United

States v. Mead Corp., 533 U.S. 218, 227 (2001) (finding that delegation of authority to an agent

to interpret a statute can be shown in a variety of ways). Courts look to the totality of the

circumstances to discern whether the agency has deference in a particular case. Fontana v.

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Caldera, 160 F. Supp. 2d 122, 128 (D.D.C. 2001) aff'd sub nom. Fontana v. White, 334 F.3d 80

(D.C. Cir. 2003); see Mead, 533 U.S. at 227.

In order for the OMB to have deference, Congress must have expressly permitted the

President to delegate deference to the OMB. See Mead, 533 U.S. at 227. Congress did not

explicitly give the President this right. Additionally, there is a sufficient reason to believe that

Congress implicitly denied the President the authority to delegate deference to an agency.

According to the dog-that-didn’t-bark canon, there is presumption that when an enacting

Congress intends to pass a controversial piece of legislation, Congressmen would debate the

topic before the legislation passed, or at least explicitly state its intent in the statute. See

generally Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 (1980); William N. Eskridge, Jr. et

al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 1020-21 (3d

ed.2001) (discussing the “dog didn't bark canon”). This canon preserves bicameralism, which is

one of the most fundamental components to our democracy, by ensuring that Congress had the

intent to enact the legislation. See U.S. CONST. art. 1. If the President were to first gain

deference over delegated agency authority, and then were permitted to delegate that deference to

a different agency, the power of the President would be greatly enhanced. Congress decides,

through appropriation laws, how much money each agency can spend on designated projects. If

the President could maneuver authority from one agency to another, the President in actuality

would be manipulating the power of the purse intrinsic to the legislative branch. For example,

hypothetically, the President would be able to give the EPA the authority to administer, and in

effect dismantle, the Department of Energy (DOE) loan guarantee; or alternatively, the President

would be able to give the DOE the authority to administer the CWA, relaxing many standards

that protect the environment. Giving the President the far-reaching authority to delegate

xl

deference to an agency is too controversial for this Court to presume that Congress intended to

give the President such authority, without further remarks from Congress.

2. Congressional delegation of deference to the President to defer to an agency, when Congress already defers to an agency, is unconstitutional under the nondelegation doctrine.

Even if Congress intended to permit the President to delegate his deference to an agency,

this delegation would be unconstitutional. See Clinton v. City of New York, 524 U.S. 417, 450

(1998). Under the non-delegation doctrine, there are some tasks that Congress cannot delegate

because such delegation would violate the separation of powers implicit in the Constitution. Id.

An essential feature of the US government is that it consists of separate branches with different

designated authorities, thus creating a system of checks and balances that protects against

tyranny. Id. The Executive Branch acts as the sword while the Legislative Branch acts as the

purse. See Hamilton Federalist Paper 78. By giving the power of the sword and the purse to a

single branch, one of the basic protections against tyranny, implicitly provided by the

Constitution, would be bypassed.

CONCLUSION

New Union demonstrated standing through its sovereign and quasi-sovereign interests

and Lake Temp is subject to the jurisdiction of the CWA as a navigable body of water. There are

two important safeguards that prevent parties from getting a section 404 permit to avoid

requirements under Section 402, and both safeguards are being bypassed in the present action.

The DOD would be spewing a toxic pollutant into Lake Temp; meanwhile, the EPA’s purpose of

vetoing the permit was circumvented by an inappropriate order from the OMB. The DOD

discharge of a toxic spent munitions is just the material that Congress was seeking to avoid from

getting a section 404 permit when it provided for the EPA veto.

xli