No. 11-1545 
================================================================ 
In The 
Supreme Court of the United States 
--------------------------------- ? --------------------------------- 
CITY OF ARLINGTON, TEXAS, et al., 
Petitioners,        
v. 
FEDERAL COMMUNICATIONS COMMISSION, et al.,  
Respondents.        
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On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 
For The Fifth Circuit 
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AMICUS CURIAE BRIEF OF NATIONAL WATER 
RESOURCES ASSOCIATION, ASSOCIATION OF 
CALIFORNIA WATER AGENCIES, SAN LUIS & 
DELTA MENDOTA WATER AUTHORITY, AND 
WESTLANDS WATER DISTRICT IN SUPPORT 
OF PETITION FOR WRIT OF CERTIORARI 
--------------------------------- ? --------------------------------- 
PETER D. NICHOLS 
BERG HILL GREENLEAF 
 RUSCITTI LLP 
1712 Pearl Street 
Boulder, Co 80302 
Telephone: (303) 345-2642 
Facsimile: (303) 402-1601 
E-Mail: pdn@bhgrlaw.com 
Counsel for National 
 Water Resources  
 Association 
HAROLD CRAIG MANSON
Counsel of Record 
400 Capitol Mall, 27th Floor 
Sacramento, CA 95814 
Telephone: (916) 321-4225 
Facsimile: (916) 321-4555 
E-Mail: 
 cmanson@westlandswater.org
Counsel for Amici Curiae 
================================================================ 
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 
OR CALL COLLECT (402) 342-2831 
i 
 
TABLE OF CONTENTS 
Page 
INTEREST OF AMICI CURIAE  ...........................  1 
BACKGROUND OF THE CASE ...........................  3 
 A.   The Telecommunications Act of 1996 ..........  3 
 B.   The Fifth Ci rcuit Decision ...........................  5 
SUMMARY OF ARGUMENT ................................  7 
ARGUMENT ...........................................................  10 
 I.   THIS COURT HAS NEVER DIRECTLY 
DECIDED WHETHER THE CHEVRON  
DOCTRINE APPLIES TO AN AGENCY’S 
INTERPRETATION OF A STATUTE DE-
FINING ITS JURISDICTION .....................  10 
 II.   THE CHEVRON  DOCTRINE APPLIES TO 
AGENCY STATUTORY INTERPRETATIONS 
THAT LIMIT AGENCY JURISDICTION, 
BUT NOT TO AGENCY INTERPRETA-
TIONS THAT EXPAND JURISDICTION ...  15 
A.   This Court Has Declined To Apply 
Chevron  Deference To Agency Statutory 
Interpretations That Expand Agency 
Jurisdiction ............................................  18 
B.   Conversely, This Court Has Applied 
Chevron  Deference To Agency Statutory 
Interpretations That Limit Agency Ju-
risdiction ................................................  22 
C.   The Fifth Circuit Wrongly Applied The 
Chevron  Doctrine ...................................  25 
CONCLUSION .......................................................  27 
ii 
 
TABLE OF AUTHORITIES 
Page 
CASES 
Arkansas v. Oklahoma,  503 U.S. 91 (1992) ......... 10, 12 
Babbitt v. Sweet Home Chapter,  515 U.S. 687 
(1995) ....................................................................... 10 
Baltimore Gas & Elec. Co. v. Natural Res. Def. 
Council, 462 U.S. 87 (1983) .................................... 11 
BFP v. Resolution Trust Corp.,  511 U.S. 531 
(1994) ....................................................................... 17 
California v. United States,  438 U.S. 645 (1978) ..... 21, 22 
Catskill Mountains Chapter v. New York City,  
451 F.3d 77 (2d Cir. 2006) ....................................... 24 
Chevron U.S.A.,  Inc. v. Natural Res. Def. Coun-
cil, Inc. , 467 U.S. 837 (1984) ........................... passim 
Christensen v. Harris County,  529 U.S. 576 
(2000) ....................................................................... 11 
Cipollone v. Liggett Group, Inc.,  505 U.S. 504 
(1992) ....................................................................... 17 
City of Arlington,  et al. v. Federal Communica-
tions Comm’n , 668 F.3d 229 (5th Cir. 2012) ... passim 
Dolan v. U.S. Postal Service,  546 U.S. 481 
(2006) ....................................................................... 26 
FCC v. Fox TV Stations,  Inc. , 556 U.S. 502 
(2009) ....................................................................... 11 
Federal Energy Regulatory Comm’n v. Missis-
sippi, 456 U.S. 742 (1982) ....................................... 16 
iii 
 
TABLE OF AUTHORITIES – Continued 
Page 
Friends of the Everglades,  et al. v. S. Fla. Water 
Mgmt. Dist., et al. , 570 F.3d 1210 (11th Cir. 
2009), cert. denied, 131 S.Ct. 643 (2010) ................ 24 
Hess v. Port Authorit y Trans-Hudson Corp.,  
513 U.S. 30 (1994) ................................................... 16 
Industrial Union Dep’t v. American Petroleum 
Inst.,  448 U.S. 607 (1980) ....................................... 11 
Ivanhoe Irrig. Dist. v. McCracken,  357 U.S. 275 
(1958) ....................................................................... 21 
Mayo Foundation v. United States,  131 S.Ct. 
704 (2011) ................................................................ 10 
Mississippi Power & Light Co. v. Mississippi ex 
rel. Moore,  487 U.S. 354 (1988) ............ 12, 13, 14, 26 
Nat’l Ass’n of Home Builders v. Defenders of 
Wildlife, 551 U.S. 644 (2007) .................. 9, 22, 24, 25 
Rapanos v. United States,  547 U.S. 715  
(2006) ....................................................... 8, 17, 19, 20 
Rice v. Santa Fe Elevator Corp ., 331 U.S. 218 
(1947) ....................................................................... 17 
Skidmore v. Swift & Co.,  323 U.S. 134 (1944) ........... 11 
Solid Waste Agency of Northern Cook County v. 
U.S. Army Corps of Engineers  (“ SWANCC ”), 
531 U.S. 159 (2001) ......................................... passim 
Solid Waste Agency of Northern Cook County v. 
U.S. Army Corps of Engineers , 191 F.3d 845 
(7th Cir. 1999), rev’d,  531 U.S. 159 (2001) ............. 19 
iv 
 
TABLE OF AUTHORITIES – Continued 
Page 
United States v. California,  694 F.2d 1171 (9th 
Cir. 1982) ................................................................. 22 
United States v. Lopez,  514 U.S. 549 (1995) .............. 17 
United States v. Mead Corp.,  533 U.S. 218 
(2001) ....................................................................... 10 
United States v. Morrison,  529 U.S. 598 (2000) ........ 17 
 
STATUTES 
Clean Water Act, 
33 U.S.C. § 1342(b) ......................................... passim 
 33 U.S.C. § 1344(a) ................................................. 18 
 33 U.S.C. § 1362(7) ................................................. 18 
Endangered Species Act, 
16 U.S.C. §§ 1536(a)(2), (c)(1) ....................... 9, 22, 23 
Federal Power Act, 16 U.S.C. § 791a ......................... 12 
Reclamation Act of 1902, 
43 U.S.C. §§ 372, 383 ........................................ 21, 22 
Telecommunications Act of 1996, 
47 U.S.C. §§ 332(c)(7)(A),  (B) ...................... 3, 4, 9, 25 
 
FEDERAL REGULATIONS 
40 C.F.R. § 122.3(i)...................................................... 24 
50 C.F.R. § 402.03 ....................................................... 23 
   
v 
 
TABLE OF AUTHORITIES – Continued 
Page 
OTHER AUTHORITIES 
T. Merrill, Judicial Deference to Executive Prec-
edent, 101 YALE L. J. 969,  971 (1992) ..................... 12 
A. Scalia, Judicial Deference to Administrative 
Interpretations of Law , 1989 DUKE L. J. 511, 
521 ........................................................................... 15 
 
1 
INTEREST OF AMICI CURIAE1 
 Amicus Natural Water Resources Association 
(“NWRA”) is a nonprofit, voluntary organization of 
state water associations whose members include cities, 
towns, water conservation and conservancy districts, 
irrigation and reservoir companies, ditch companies, 
farmers, ranchers, and others with an interest in 
water issues in the western states. NWRA has mem-
ber associations in Arizona, California, Colorado, 
Idaho, Montana, Nebraska, Nevada, New Mexico, 
North Dakota, Oregon, South Dakota, Texas, Utah, 
and Washington.  
 Amicus Association of California Water Agencies 
(“ACWA”) represents approximately 90% of the public 
water agencies in Californi a, which agencies are re-
sponsible for distributing water supplies for urban 
and agricultural use in California. Many ACWA 
members, in order to provide water supplies for their 
customers, have contracts with federal and state 
agencies entitling them to water deliveries from 
federal and state water projects.  
 
 1 Counsel of record for the pa rties to this petition have 
received notice of in tent to file this amicus curiae brief at least 
10 days prior to the due date of the brief (Rule 37.2). The pe-
titioners and respondents have consented to the filing of this 
brief. None of the parties to the petition nor their counsel have 
authored the brief in whole or in part, and no such party or 
counsel made a monetary contribu tion to fund the preparation 
or submission of the brief (Rule 37.6).  
2 
 Amicus San Luis & Delta-Mendota Water Au-
thority (“SLDMWA”) is a California joint powers au-
thority, comprised of 29 member water agencies, 
which meet the water supply needs of over 2.8 million 
acres of agricultural lands within areas of Fresno, 
Kings, Merced, San Benito, San Joaquin, Santa Clara, 
and Stanislaus Counties; municipal and industrial 
use for more than 1 million people in the Silicon 
Valley as well as cities in the San Joaquin Valley, and 
for approximately 51,500 acres of private waterfowl 
habitat in the San Joaquin Valley, California.  
 Amicus Westlands Water District (“WWD”), lo-
cated in Fresno and King Counties in California, is 
the nation’s largest agricultural water district in 
terms of irrigated acreage. Westlands supplies irri-
gation water to California’s Central Valley farmlands 
which produce a substantial portion of the fruits and 
vegetables grown and consumed in the nation.  
 The amici or their members obtain water sup-
plies by diverting water from various water bodies, or 
by entering into contracts  with federal and state 
agencies for delivery of wate r supplies from federal or 
state water projects. The U. S. Environmental Protec-
tion Agency (“EPA”) has taken the position that it 
may require water users, including the federal and 
state water projects, to reduce water diversions and 
deliveries in order to provide additional supplies for 
endangered species under the Endangered Species 
Act (“ESA”). Thus, the amici have an interest in the 
issue presented in this case, which is whether the 
“ Chevron  doctrine,” based on this Court’s decision in 
3 
Chevron U.S.A., Inc. v. Na tural Res. Def. Council, 
Inc., 467 U.S. 837 (1984), applies when an agency in-
terprets a statute defining its jurisdiction.  
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BACKGROUND OF THE CASE 
A. The Telecommunic ations Act of 1996 
 The underlying dispute involves the interpreta-
tion of two provisions of the Telecommunications Act 
of 1996 (“TCA”) – subsections (A) and (B) of section 
332(c)(7) – which grant authority to state and local 
governments to regulate personal wireless service 
facilities and impose limitations on the grant of such 
authority. 47 U.S.C. §§ 332(c)(7)(A), (B). Subsection 
(A) grants “[g]eneral authority” to state and local 
governments to regulate the placement, construction 
and modification of personal wireless service facili-
ties, and provides that “[e]xcept as provided in this 
paragraph, nothing in this chapter shall limit the 
authority” of state and loc al governments to adopt 
such regulations. Id . at § 332(c)(7)(A). Subsection (B) 
imposes “[l]imitations” on st ate and local authority to 
adopt such regulations. Id.  at § 332(c)(7)(B). Specifi-
cally, subsection (B) provides that state and local 
governments shall not adopt regulations that “prohib-
it or have the effect of pr ohibiting” the provision of 
personal wireless services, id. at § 332(c)(7)(B)(i); that 
state and local governments must act on requests  
to place, construct or modify personal wireless facili-
ties “ within a reasonable period of time ,” id. at 
4 
§ 332(c)(7)(B)(ii); and that any person injured by a 
state or local government’s “ failure to act” may com-
mence a judicial action within 30 days challenging 
the decision, id. at § 332(c)(7)(B)(v) (emphases added). 
 The Federal Communications Commission (“FCC”) 
issued a Declaratory Ruling stating that the phrase 
“within a reasonable period of time,” as used in 
subsection (B)(ii), presumptively means 90 days for 
applications requesting modifications, i.e., “colloca-
tions,” of existing personal  wireless service facilities, 
and 150 days for all other applications. City of Arling-
ton, et al. v. Federal Communications Comm’n , 668 
F.3d 229, 235 (5th Cir. 2012). The FCC concluded that 
there has been no “failure to act” within the meaning 
of subdivision (B)(v) – and thus no basis for commenc-
ing a judicial action under that provision – as long as 
a state or local government acts on an application 
within the 90- and 150-day time frames. Id . The FCC 
determined that it was authorized to adopt the 90- 
and 150-day time frames under its general authority 
to make rules and regulations necessary to carry out 
the TCA’s provisions. Id . at 247.  
 The City of Arlington ar gued below that subsec-
tion (A) precludes the FCC from implementing the 
limitations in subsection (B), and thus precludes the 
agency from adopting the 90- and 150-day time 
frames. Id . In rejecting the argument, the FCC con-
cluded that subsection (A) merely precludes the FCC 
from imposing additional limitations on state and lo-
cal authority beyond those imposed in subsection (B), 
and that subsection (A) does not otherwise restrict 
5 
the FCC’s authority to implement the subsection (B) 
limitations. Id . In short, the FCC construed subsec-
tion (A) as not restricting its authority to adopt time 
frame presumptions under subsection (B).  
 
B. The Fifth Circuit Decision  
 The Fifth Circuit applied the Chevron  doctrine in 
upholding the FCC’s interpre tation of its authority 
under subsections (A) and (B). Arlington , 668 F.3d at 
247-54. Under the Chevron  doctrine, the courts must 
defer to an agency’s interpretation of a statute that it 
is responsible for administering and enforcing, if the 
statute is ambiguous and the agency’s interpretation 
is reasonable. Chevron U.S.A., Inc.  v. Natural Res. 
Def. Council, Inc., 467 U.S. 837, 842-44 (1984). The 
Fifth Circuit acknowledged th at this Court has never 
decided whether Chevron  deference applies to an 
agency’s interpretation of a statute defining its juris-
diction, and that the federal circuit courts disagree 
whether Chevron  applies in this context. The court 
stated:  
The Supreme Court has not yet conclusively 
resolved the question of whether Chevron  
applies in the context of an agency’s deter-
mination of its own statutory jurisdiction, 
and the circuit courts of appeal have adopted 
different approaches to the issue. Some cir-
cuits apply Chevron  deference to disputes 
over the scope of an agency’s jurisdiction, 
some do not, and some circuits have thus far 
avoided taking a position. In this circuit, we 
6 
apply Chevron to an agency’s interpretation 
of its own statutory jurisdiction, and there-
fore, we will apply the Chevron  framework 
when determining whether the FCC pos-
sessed the statutory authority to establish 
the 90- and 150-day time frames.  
Arlington , 668 F.3d at 248 (footnotes omitted). 2 The 
court concluded that subsection (A) and (B) are am-
biguous concerning the FCC’s authority to adopt the 
time frame presumptions, that the FCC’s interpreta-
tion of the subsections is not unreasonable, and there-
fore that the FCC’s interpretation must be upheld 
under Chevron . Id . at 248-54.  
 The petition for writ of  certiorari raises two ques-
tions, the first of which is whether the Chevron  doc-
trine applies to an agency’s interpretation of a statute 
defining its jurisdiction. This amicus brief addresses 
solely that question.  
--------------------------------- ? --------------------------------- 
   
 
 2 According to the Fifth Circuit, the Fifth, Third and Tenth 
Circuits have held that Chevron  applies to an agency’s interpre-
tation of a statute defining its jurisdiction, the Seventh Circuit 
and Federal Circuit have held that Chevron  does not apply, and 
the First and Sixth Circuits have avoided taking a position. 
Arlington , 668 F.3d at 248 & nn. 90-94.  
7 
SUMMARY OF ARGUMENT 
 The Chevron  doctrine does not apply to an agency’s 
interpretation of a statute de fining its jurisdiction, if 
the agency construes the statute as expanding its 
jurisdiction and thus limitin g the jurisdiction of state 
and local governments to regulate the subject matter. 
If Chevron  were applied in this context, its applica-
tion would contradict another, more salient canon of 
statutory construction – t hat under long-standing, 
constitutionally-based principles of federalism fash-
ioned by this Court, Congress presumptively does not 
authorize federal regulation of subjects traditionally 
regulated by state and local governments under their 
police power or other authority. Congress presump-
tively does not authorize federal intrusion into tradi-
tional areas of state and local regulation unless 
Congress speaks with a clear voice – and, if Congress 
speaks with a clear voice, the statute is not ambigu-
ous and the Chevron doctrine does not apply by its 
terms. The long-standing principles of federalism 
fashioned by this Court provide a more reliable guide 
for construing Congress’ intent than the Chevron  doc-
trine. Simply put, an agency cannot properly construe 
an ambiguous statute as exp anding its jurisdiction at 
the expense of state and local jurisdiction over the 
subject matter, and – if an agen cy does so – the courts 
should not grant Chevron  deference to the agency’s 
construction. Chevron  does not contradict or displace 
these long-standing principles of federalism, but 
instead provides a means for construing ambiguous 
statutes where these principles do not apply.  
8 
 It follows that if an agency construes a statute as 
limiting  its jurisdiction and not intruding into tradi-
tional areas of state and local regulation, the agency’s 
construction is more likely to be congruent with 
principles of federalism established by this Court and 
to be entitled to Chevron  deference. If, conversely, an 
agency construes a statute as expanding  its jurisdic-
tion and thus intruding into traditional areas of state 
and local regulation, the agency’s construction is less 
likely to be congruent with these principles of federal-
ism and to be entitled to deference. The authority of 
state and local governments to regulate subjects 
within their traditional areas of jurisdiction is enti-
tled to greater deference than a federal agency’s ex-
pansive interpretation of its authority under an 
ambiguous statute.  
 Indeed, this Court has declined to apply Chevron  
deference to an agency’s interpretation of an ambigu-
ous statute, such as the Clean Water Act, 33 U.S.C. 
§ 1342(b), where the agency’s interpretation expand-
ed its jurisdiction to regulate subjects traditionally 
regulated at the state and local level, such as water 
use and land use. Solid Waste Agency of Northern 
Cook County v. U.S. Army Corps of Engineers 
(“SWANCC”), 531 U.S. 159 (2001); Rapanos v. United 
States , 547 U.S. 715 (2006). In SWANCC , this Court 
declined to apply Chevron deference because the 
agency’s expansive interpretation of its jurisdiction 
would result in an “impingement” of the states’ tradi-
tional regulatory authority, and Congress would not 
have “encroach[ed]” on the states’ traditional authority 
9 
without a “clear expression” of its intent. SWANCC,  
531 U.S. at 172-74. On the other hand, this Court 
recently applied Chevron  in upholding and applying a 
federal regulation that limited federal authority 
under the Endangered Species Act, 16 U.S.C. 
§§ 1536(a)(2), (c)(1), and thus  limited federal intru-
sion into areas traditionally regulated by the states. 
Nat’l Ass’n of Home Builders v. Defenders of Wildlife , 
551 U.S. 644 (2007). Although this Court has never 
expressly distinguished for Chevron purposes be-
tween an agency’s limiting and expansive definition 
of its jurisdiction, this Court’s decisions in these and 
other cases support such a distinction.  
 The instant case provides an opportunity for the 
Court to clearly articulate the distinction for Chevron 
purposes between an agency’s expansive and limiting 
interpretation of its statutory authority. Here, the 
FCC expansively interpreted its authority – and 
thereby narrowly interpreted state and local author-
ity – to regulate personal wireless service facilities 
under the Telecommunications Act, and the Fifth 
Circuit mechanically applied Chevron  in upholding 
the FCC’s interpretation. In the amici ’s view, the 
Chevron  doctrine does not apply here, and the Fifth 
Circuit wrongly applied it.  
 This Court has never directly decided whether 
Chevron  deference applies to an agency’s interpreta-
tion of its statutory jur isdiction, and the federal 
circuit courts disagree concerning whether Chevron 
applies in this context. This Court should grant the  
 
10 
petition in order to decide this nationally-significant 
issue and resolve the conflict among the circuit 
courts.  
--------------------------------- ? --------------------------------- 
 
ARGUMENT 
I. THIS COURT HAS NEVER DIRECTLY 
DECIDED WHETHER THE CHEVRON  DOC-
TRINE APPLIES TO AN AGENCY’S INTER-
PRETATION OF A STATUTE DEFINING ITS 
JURISDICTION. 4  
 Under the Chevron  doctrine, an agency’s inter-
pretation of a statute that it administers is entitled to 
deference, if the statute is  “silent or ambiguous” and 
the agency’s interpretation is “permissible.” Chevron 
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 
U.S. 837, 842-44 (1984); see Mayo Foundation v. 
United States , 131 S.Ct. 704, 711 (2011); Babbitt v. 
Sweet Home Chapter , 515 U.S. 687, 703 (1995); 
Arkansas v. Oklahoma , 503 U.S. 91, 105 (1992). 
Chevron  deference is appropriate “when it appears 
that Congress delegated authority to the agency gen-
erally to make rules carrying the force of law, and 
that the agency interpretation claiming deference 
was promulgated in the exercise of that authority.” 
United States v. Mead Corp ., 533 U.S. 218, 226-27 
(2001). Under the Chevron  doctrine, the reviewing 
court is required to unde rtake a two-step analysis: 
first, the court determines whether the statute is am-
biguous, and, second, if the statute is ambiguous, the 
11 
court defers to the agency’s  interpretation if it is 
permissible. Chevron , 467 U.S. at 842-43.3  
 Although the Chevron doctrine on its face ap-
pears to categorically require deference if certain 
objective factors are present – that is, if the statute is 
ambiguous and an agency’s interpretation is permis-
sible – this Court has not always applied Chevron  
based on these objective factors, and instead has 
often considered additional factors in deciding wheth-
er to grant deference. For example, the Court has 
held that deference to an agency interpretation is 
particularly appropriate if the agency has made a 
“scientific determination” within the agency’s “area of 
special expertise,” thus indicating that deference is 
less appropriate if these factors are not present. 
Baltimore Gas & Elec. Co. v.  Natural Res. Def. Coun-
cil, 462 U.S. 87, 103 (1983 ) ;  see Industrial Union 
Dep’t v. American Petroleum Inst.,  448 U.S. 607, 656 
(1980) (plurality opinion). This Court has construed 
federal statutes in order to avoid constitutional 
conflicts, thus limiting its deference to an agency’s 
interpretation of the st atute in such cases. Solid 
Waste Agency of Northern Cook County v. U.S. Army 
Corps of Engineers, 531 U.S. 159, 172 (2001); FCC v. 
Fox TV Stations, Inc. , 556 U.S. 502, 516 (2009). This 
Court has deferred to an agency’s interpretation of its 
 
 3 Even if Chevron  does not apply, a court may still defer to 
an agency’s interpretation of a statute if the agency’s interpreta-
tion is “persuasive.” Skidmore v. Swift & Co. , 323 U.S. 134, 140 
(1944); Christensen v. Harris County , 529 U.S. 576, 587 (2000).  
12 
statutory authority to resolve an interstate water 
pollution dispute, which, although not mentioned by 
the Court, had the effect of lessening the need for this 
Court to resolve the interstate dispute under its orig-
inal jurisdiction. Arkansas v. Oklahoma , 503 U.S. 91, 
105 (1992). As one commentator has observed:  
It turns out that the [Supreme] Court does 
not regard Chevron  as a universal test for 
determining when to defer to executive in-
terpretations: the Chevron  framework is 
used in only about hal f the cases that the 
Court perceives as presenting a deference 
question. Nor have the multiple factors iden-
tified in the pre- Chevron  period disappeared; 
to the contrary, the Court continues to rely 
upon them in many cases, despite their ap-
parent irrelevance under Chevron.   
T. Merrill, Judicial Deference to Executive Precedent , 
101 YALE L. J. 969, 971 (1992).  
 This Court has never directly decided whether 
the Chevron  doctrine applies to an agency’s interpre-
tation of a statute defining its jurisdiction. In Missis-
sippi Power & Light Co. v. Mississippi ex rel. Moore , 
487 U.S. 354 (1988), Justices Scalia and Brennan, in 
their respective concurring and dissenting opinions, 
expressed divergent views concerning whether Chevron  
applies in this context. 4 Justice Scalia argued:  
 
 4 In Mississippi , this Court held that the Federal Power 
Act, 16 U.S.C. § 791a, authorizes  the Federal Energy Regulatory 
(Continued on following page) 
13 
[I]t is plain that giving deference to an ad-
ministrative interpretation of its [the agency’s] 
statutory jurisdiction or authority is both 
necessary and appropriate. It 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. . . . And deference is appropri-
ate because it is consistent with the general 
rationale for deference: Congress would nat-
urally expect that the agency would be re-
sponsible, within broad limits , for resolving 
ambiguities in its statutory authority or ju-
risdiction.  
Mississippi , 487 U.S. at 381-82 (Scalia, J., concurring) 
(original emphasis except last emphasis). Justice 
Brennan argued:  
Our agency deference ca ses have always been 
limited to statutes the agency was “entrusted 
to administer.” Agencies do not “administer” 
statutes confining the scope of their jurisdic-
tion, and such statutes are not “entrusted” to 
agencies. Nor do the normal reasons for 
agency deference apply. First, statutes con-
fining an agency’s jurisdiction do not reflect 
 
Commission to determine the prudency of retail electricity rates 
charged by public utilities, and preempts the authority of state 
utility commissions to determine the prudency of such rates. 
The Court reached this conclusion based on principles of 
preemption and the Court’s own precedents, and did not apply 
the Chevron  doctrine or otherwise mention the doctrine in its 
majority opinion.  
14 
conflicts between policies that have been 
committed to the agency’s care [citations], 
but rather reflect policies in favor of limiting 
the agency’s jurisdiction that, by definition, 
have not been entrusted to the agency and 
that may indeed conflict not only with the 
statutory policies the agency has been 
charged with advancing but also with the 
agency’s institutional interests in expanding 
its power. Second, for similar reasons, agen-
cies can claim no special expertise in inter-
preting a statute confining its jurisdiction. 
Finally, we cannot presume that Congress 
implicitly intended an agency to fill “gaps” in 
a statute confining the agency’s jurisdiction, 
since by its nature such a statute manifests 
an unwillingness to give the agency the free-
dom to define the scope of its own power. It is 
thus not surprising that this Court has never 
deferred to an agency’s interpretation of a 
statute designed to confine the scope of its 
jurisdiction. 
Id . at 386-87 (Brennan, J., dissenting). [Citations 
omitted]. 
 Although Justices Scalia and Brennan expressed 
divergent views concerning whether Chevron  applies 
to an agency’s interpretation of its statutory jurisdic-
tion, it is not clear whether, or how much, their views 
would diverge in a particular case. Although Justice 
Scalia said that an agency is responsible for deter-
mining its jurisdiction “within broad limits,” Missis-
sippi, 487 U.S. at 381-82 (Scalia, J., concurring), he 
did not spell out how far th ese “broad limits” might 
15 
extend, or whether they might preclude Chevron ’s 
application where an agency  seeks to expand its 
jurisdiction into areas traditionally regulated by the 
states. Indeed, Justice Scalia’s later joinder of this 
Court’s majority opinion in Solid Waste Agency of 
Northern Cook County v. U.S. Army Corps of Engi-
neers, 531 U.S. 159 (2001) – whic h declined to apply 
Chevron  deference to an agency’s expansive interpre-
tation of its jurisdiction under the Clean Water Act – 
suggests that Justice Scalia would not grant Chevron  
deference to an agency’s over ly expansive view of its 
jurisdiction. 5 Thus, Justice Brennan’s categorical view 
and Justice Scalia’s qualified view of Chevron  defer-
ence may converge in a particular setting, depending 
on whether the agency’s in terpretation exceeds the 
“broad limits” mentioned in Justice Scalia’s concur-
ring opinion.  
 
II. THE CHEVRON  DOCTRINE APPLIES TO 
AGENCY STATUTORY INTERPRETATIONS 
THAT LIMIT AGENCY JURISDICTION, BUT 
NOT TO AGENCY INTERPRETATIONS THAT 
EXPAND JURISDICTION.  
 Although this Court has never directly decided 
whether Chevron  deference applies to an agency’s 
 
 5 This conclusion is supported by Justice Scalia’s comment 
in a law review article, in which he stated that “[i]t is . . . rel-
atively rare that Chevron  will require me to accept an interpre-
tation which, though reasonable, I would not personally adopt.” 
A. Scalia, Judicial Deference to Administrative Interpretations of 
Law , 1989 DUKE L. J. 511, 521.  
16 
interpretation of its statutory jurisdiction, this Court 
has considered an important, and indeed apparently 
paramount, factor in determining whether Chevron 
applies in such circumstances – namely, whether the 
agency’s interpretation expands its jurisdiction or in-
stead limits its jurisdiction, and in particular whether 
an agency’s expansive interpretation allows it to reg-
ulate subjects traditionally regulated by state and 
local governments under their police power or other 
authority. This Court has readily applied Chevron  to 
an agency’s limiting interpretation of its jurisdiction, 
but has rarely, if ever, applied Chevron  to an agency’s 
expansive interpretation of its jurisdiction, where the 
agency’s expansive interpretation limits the tradi-
tional regulatory authority of state and local govern-
ments. If an agency interpre ts an ambiguous statute 
as authorizing it to regu late subjects normally regu-
lated at the state and local level, countervailing 
principles of federalism come into play that limit 
deference to the agency’s interpretation. Under these 
principles of federalism, Congress presumptively does 
not authorize federal intrusion into areas traditional-
ly regulated by state and local governments unless it 
clearly says so – in which case the statute is not 
ambiguous and the Chevron  doctrine does not apply 
by its terms. See, e.g., Hess v. Port Authority Trans-
Hudson Corp ., 513 U.S. 30, 44 (1994) (narrowly 
interpreting federal statute limiting state authority); 
Federal Energy Regulatory Comm’n v. Mississippi,  
456 U.S. 742, 767-68 n. 30 (1982) (same).  
 For example, this Court has held that Congress 
presumptively does not preempt state and local 
17 
authority to regulate subjects within their traditional 
areas of jurisdiction “unless that was the clear and 
manifest purpose of Congress.” Rice v. Santa Fe Ele-
vator Corp ., 331 U.S. 218, 230 (1947); see Cipollone v. 
Liggett Group, Inc.,  505 U.S. 504, 516 (1992); “We 
ordinarily expect a ‘clear and manifest’ expression 
from Congress to authorize an unprecedented in-
trusion into traditional state authority. [Citation.]” 
Rapanos v. United States , 547 U.S. 715, 738 (2006) 
(plurality opinion); see BFP v. Resolution Trust Corp ., 
511 U.S. 531, 544 (1994). Similarly, this Court has 
held that the Commerce Clause of the Constitution 
limits Congress’ power to enact laws that “effectually 
obliterate the distinction between what is national 
and what is local. . . .” United States v. Lopez , 514 
U.S. 549, 557 (1995); see United States v. Morrison , 
529 U.S. 598, 619 n. 8 (2000).  
 Thus, if a federal agency interprets an ambigu-
ous statute as limiting  its jurisdiction, the Chevron 
doctrine is more likely to converge with principles of 
federalism and be applied. If, on the other hand, the 
agency interprets an ambiguous statute as expanding  
its jurisdiction, and as autho rizing it to regulate 
subjects traditionally regula ted at the state and local 
level, the Chevron  doctrine is more likely to diverge 
from principles of federalism and not be applied.  
 
 
 
18 
A. This Court Has Declined To Apply Chevron  
Deference To Agency Statutory Inter-
pretations That Expand Agency Juris-
diction.  
 This Court has specifically declined to apply 
Chevron  deference where an agency interpreted an 
ambiguous statute as authorizing the agency to ex-
pansively regulate subjects traditionally regulated by 
state and local governments, such as water use and 
land use.  
 In Solid Waste Agency of Northern Cook County v. 
U.S. Army Corps of Engineers,  531 U.S. 159 (2001), 
this Court declined to grant Chevron  deference to a 
U.S. Army Corps of Engineers regulation authorizing 
the Corps to regulate “isolated” waters, i.e., waters 
not physically connected to navigable waters, under 
the Clean Water Act. Under the Act, the Corps is 
authorized to regulate “navigable waters,” which are 
defined as “the waters of the United States.” 33 
U.S.C. §§ 1344(a), 1362(7). Al though the Court stated 
that the phrase “the waters of the United States” is 
not ambiguous, the Court also stated that – even if 
the phrase were ambiguous – there would be no basis 
for applying Chevron . SWANCC , 531 U.S. at 172-73. 
The Court stated that the states have traditionally 
and historically regulated non-navigable waters, and 
thus the Corps’ assertion of jurisdiction over “isolat-
ed” waters – which by definition are not navigable – 
would result in a “significant impingement of the 
States’ traditional and primary power over land and 
water use,” id. at 161, 174, thus allowing “federal 
19 
encroachment upon a traditional state power,” id. at 
173. The Court stated that Congress would not have 
invoked the “outer limits” of its constitutional power 
without a “clear expression” of its intent. Id.  at 172. 
Invoking its “prudential desire not to needlessly 
reach constitutional issues,” id. at 172, the Court 
concluded that the Corps does not have jurisdiction 
under the Clean Water Act to regulate “nonnavigable, 
isolated, intrastate waters,” id. at 166. The Court 
overturned the Seventh Circuit decision below, which 
had relied on Chevron  in upholding the Corps’ regula-
tion. SWANCC,  191 F.3d 845, 853 (7th Cir. 1999), 
rev’d,  531 U.S. 159, 174 (2001). Thus, the Court 
declined to apply Chevron deference in determining 
the Corps’ regulatory jurisdiction, and instead applied 
long-standing principles of federalism that recognize 
the primacy of state and local authority.  
 Subsequently, in Rapanos v. United States , 547 
U.S. 715 (2006), this Court’s plurality opinion again 
declined to apply Chevron  deference to a regulation 
adopted by the Army Corps of Engineers under the 
Clean Water Act, which interpreted the phrase “the 
waters of the United Stat es” – over which the Corps 
has jurisdiction – as includ ing virtually all wetlands 
in the nation. Although the plurality opinion stated 
that the Corps’ “expansive” interpretation of the 
phrase was foreclosed by its “natural definition,”  
 
20 
Rapanos, 547 U.S. at 731,6 the plurality opinion also 
stated that “[e]ven if the phrase ‘the waters of the 
United States’ were ambiguous . . . , our own canons 
of construction would est ablish that the Corps’ inter-
pretation of the statute is impermissible.” Id.  at 737. 
Citing the Court’s decision in SWANCC , the plurality 
opinion stated that “the Government’s expansive in-
terpretation would ‘result in a significant impinge-
ment of the States’ tradit ional and primary authority 
over land and water use,’ ” and that “[w]e would or-
dinarily expect a ‘clear and manifest’ statement from 
Congress to authorize an unprecedented intrusion 
into traditional state authority.” Id . at 738 (citations 
and internal quotation marks omitted). Thus, the 
plurality opinion stated that the traditional canons of 
construction based on principles of federalism, rather 
than the Chevron  doctrine, apply in construing an 
ambiguous jurisdictional statute. Although the dis-
senting opinion argued that the Court should apply 
Chevron  deference in upholding the Corps’ regulation, 
id. at 2252-53 (Stevens, J., di ssenting), the plurality 
opinion rejected the argument.  
 Even before Chevron , this Court applied long-
standing principles of fede ralism in construing the 
authority of federal agenc ies to regulate subjects 
 
 6 The plurality opinion interpreted the phrase “the waters 
of the United States” as including only “relatively permanent, 
standing or flowing bodies of water,” Rapanos, 547 U.S. at 732, 
and as including only wetlands that have a “continuous surface 
connection” to such waters,” id. at 742.  
21 
traditionally regulated by the states, such as water 
use and land use, rather than deferring to the federal 
agencies’ interpretation of their jurisdiction. In Cali-
fornia v. United States , 438 U.S. 645 (1978), this 
Court rejected the United States’ argument that the 
Secretary of the Interior was authorized under the 
Reclamation Act of 1902 to regulate water uses 
served by federal reclamation projects in the western 
states. The Secretary had long taken the position that 
the Reclamation Act – which requires the Secretary 
to comply with state laws re lating to the “control, 
appropriation, use, or distribution of water used in 
irrigation,” 43 U.S.C. §§ 372, 383 – requires the 
Secretary to comply only with state laws defining 
proprietary rights in water, and not with state laws 
regulating water uses served by the federal projects. 
The statutory language was unclear; indeed, this 
Court had earlier upheld the Secretary’s determina-
tion that the statutory language applied only to 
proprietary rights. Ivanhoe Irrig. Dist. v. McCracken,  
357 U.S. 275, 279 (1958). Nonetheless, this Court in 
California held that the statutory language requires 
the Bureau to comply with state laws regulating 
water uses served by the projects. The Court rea-
soned that Congress had adopted a long-standing 
policy of deferring to state water laws, and that this 
long-standing congressional policy informed the mean-
ing of the Reclamation Act. Id . at 653. As the Court 
stated, “[t]he history of th e relationship between the 
Federal Government and the States in the reclama-
tion of the arid lands of the Western States is both 
long and involved, but through it runs the consistent 
22 
thread of purposeful and continued deference to state 
water law by Congress.” Id. 7 Thus, the Court deferred 
to Congress’ long-standing policy of recognizing the 
supremacy of state water ri ghts laws rather than the 
Secretary’s expansive interpretation of his authority 
under the Reclamation Act. The outcome of the case 
would likely have been entirely different if this Court 
had granted Chevron -like deference to the Secretary’s 
expansive interpretation of his authority.  
 
B. Conversely, This Court Has Applied 
Chevron  Deference To Agency Statutory 
Interpretations That Limit Agency Ju-
risdiction.  
 On the other hand, this Court has applied Chevron  
deference in upholding agency statutory interpreta-
tions that limit agency jurisdiction and that do not 
circumscribe the traditional regulatory authority of 
state and local governments.  
 In Nat’l Ass’n of Home Bu ilders v. Defenders of 
Wildlife, 551 U.S. 644 (2007), this Court applied 
Chevron  deference in upholding a federal regulation 
limiting the authority of federal regulatory agencies 
under the Endangered Species Act (“ESA”). There, 
 
 7 On remand, the Ninth Circuit, in a decision written by 
then-Judge Kennedy, reaffirmed that the Reclamation Act must 
be read in light of Congress’ long-standing policy of deferring to 
state water laws. United States v. California , 694 F.2d 1171, 
1176, 1178 (9th Cir. 1982).  
23 
the State of Arizona applied to the U.S. Environmen-
tal Protection Agency (“EPA”) for authority to admin-
ister its permit program under the Clean Water Act. 
The Clean Water Act provides that the EPA “shall” 
approve a state permit program that meets the Act’s 
criteria. 33 U.S.C. § 1342( b). The EPA determined 
that the Arizona program met the statutory criteria, 
and approved the Arizona program. The Ninth Cir-
cuit held that the EPA violated the ESA by failing 
to “consult” with a designated service agency before 
approving the Arizona program. Under the ESA, a 
federal agency is required to “consult” with a desig-
nated service agency before taking any action “au-
thorized, funded or carried out” by the agency that 
may affect an endangered species. 16 U.S.C. 
§§ 1536(a)(2), (c)(1). 
 This Court, overturning the Ninth Circuit deci-
sion, held that a regulation adopted by the Secre-
taries of Interior and Commerce, which defined the 
consultation obligation of federal agencies under the 
ESA, did not require the EPA to consult, and that 
under Chevron  the Secretaries’ regulation was enti-
tled to deference. The Secretaries’ regulation required 
federal agencies to consult in “all actions in which 
there is discretionary  Federal involvement or control.” 
50 C.F.R. § 402.03 (emphasis added). This Court held 
that – since the Clean Water Act provides that the 
EPA “shall” approve state permit programs that meet 
the statutory criteria – the EPA had no “discretion-
ary” authority to disapprove the Arizona program, 
and therefore that the EPA was not required to 
24 
consult before approving the program. Home Build-
ers, 551 U.S. at 665-68. Thus, the Court applied 
Chevron  deference in upholding an agency regulation 
that limited an agency’s consultation obligation under 
the ESA and thus avoided intrusion into areas tradi-
tionally regulated by the states.  
 Similarly, the Eleventh Circuit recently applied 
Chevron  deference in upholding another federal reg-
ulation that limited federal jurisdiction under the 
Clean Water Act and thereby limited federal intru-
sion into traditional areas of state regulation. Friends 
of the Everglades, et al. v.  S. Fla. Wat er Mgmt. Dist., 
et al., 570 F.3d 1210 (11th Cir. 2009), cert. denied, 
131 S.Ct. 643 (2010). There, an EPA regulation pro-
vided that a transfer of water from one water body 
to another does not result in the “addition” of a pollu-
tant to the second water body (even though the trans-
fer may introduce a pollutant to the second water 
body) and therefore the transferor is not required to 
obtain a permit from the EPA under the Clean Water 
Act in order to make the transfer. 40 C.F.R. § 122.3(i). 
The Eleventh Circuit held that the Clean Water Act is 
ambiguous concerning whether a water transfer 
results in the “addition” of a pollutant; that the EPA’s 
regulation provides a “permissible construction” of 
the statutory language; and therefore that deference 
was appropriate under Chevron . Friends of the Ever-
glades , 570 F.3d at 1127. Notably, the court declined 
to follow the Second Circuit ’s earlier decision in 
Catskill Mountains Chapter v. New York City , 451 
F.3d 77 (2d Cir. 2006), which had concluded – before 
25 
the EPA adopted its regulation – that an EPA permit 
was required for a water transfer. In effect, the Elev-
enth Circuit declined to f ollow the precedent of a sis-
ter circuit court, and instead deferred to an agency’s 
limiting interpretation of its jurisdiction under Chevron , 
as this Court did in Home Builders .  
 
C. The Fifth Circuit Wrongly Applied The 
Chev r o n  Doctrine.  
 In this case, the FCC expansively interpreted its 
authority and narrowly interpreted the states’ au-
thority to regulate personal  wireless service facilities 
under the TCA. Specifically, the FCC narrowly con-
strued subsection (A) of 47 U.S.C. § 332(c)(7), which 
grants  regulatory authority to the states, and expan-
sively construed subsection (B), which limits the 
grant of authority to the states. Arlington , 668 F.3d at 
235. Based on its construction, the FCC concluded 
that it has statutory authority to implement subsec-
tion (B) ’s limitations of state authority. Id . Since the 
FCC expansively interpreted its authority and nar-
rowly interpreted the states’ authority, the Fifth 
Circuit wrongly applied the Chevron  doctrine.  
 The amici do not contend that Chevron  does not 
apply because the TCA is not “ambiguous,” or because 
the FCC’s interpretation is not “permissible.” The 
amici do not address the question whether the FCC’s 
interpretation of the TCA is correct or incorrect. 
Rather, the amici contend that the Fifth Circuit ap-
plied the wrong methodology by applying Chevron  to 
26 
an agency’s expansive interpretation of its statutory 
authority, an interpretation that circumscribed state 
and local authority over the same subject matter. The 
Fifth Circuit, rather than applying Chevron , should 
have determined the FCC’s statutory authority under 
other canons of construction, which inter alia require 
consideration of the meaning, purpose and context of 
the statute. Dolan v. U.S. Postal Service , 546 U.S. 
481, 486 (2006). Regardless of whether the Fifth Cir-
cuit reached the right result in determining the FCC’s 
jurisdiction, the court employed the wrong methodol-
ogy by applying Chevron .  
 This Court has never directly decided whether 
Chevron  applies to an agency’s construction of a stat-
ute defining its jurisdiction, 8 and the federal circuit 
 
 8 To be sure, Justice Scalia has argued that “we have held 
that this [ Chevron ] rule of deference applies to an agency’s in-
terpretation of a statute designed to confine its authority,” Mis-
sissippi Power & Light Co. v. Mississippi ex rel. Moore , 487 U.S. 
354, 380 (1988) (Scalia, J., concurring), although Justice Brennan 
argued in the same case that “this Court has never deferred to 
an agency’s interpretation of a statute designed to confine the 
scope of its jurisdiction.” Id . at 349 (Brennan, J., dissenting). 
Regardless of whether Justice Sc alia or Justice Brennan was 
right, there is at least disagreement among this Court’s present 
and past members over whether the Court has decided the issue, 
which alone provides a basis for this Court to review the issue. 
The Fifth Circuit stated – correctly, in our view – that this Court 
has never resolved the issue. Arlington , 668 F.3d at 248. In any 
event, this Court has never expressly distinguished for Chevron  
purposes between agency interpretations that limit agency juris-
diction and agency interpretations that expand  agency jurisdic-
tion – although this Court’s above-cited cases appear to support 
(Continued on following page) 
27 
courts disagree concerning whether Chevron  applies 
in this context. Arlington , 668 F.3d at 248. This Court 
should review the case to decide this nationally-
significant issue and resolve the intercircuit conflict.  
--------------------------------- ? --------------------------------- 
 
CONCLUSION 
 For the foregoing reasons, the petition for writ of 
certiorari should be granted.  
Respectfully submitted,  
HAROLD CRAIG MANSON 
Counsel of Record 
400 Capitol Mall, 27th Floor 
Sacramento, CA 95814 
Telephone: (916) 321-4225 
Facsimile: (916) 321-4555 
E-Mail: 
 cmanson@westlandswater.org 
Counsel for Amici Curiae 
 
such a distinction – and this case presents an opportunity for 
this Court to expressly decide whether the distinction exists.