Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.

No. 21-454

In the

Supreme Court of the United States

__________

MICHAEL SACKETT; CHANTELL SACKETT,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;

MICHAEL S. REGAN, Administrator

Respondents.

__________

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

__________

BRIEF OF ASSOCIATION OF

AMERICAN RAILROADS

IN SUPPORT OF PETITIONERS

__________

KATHRYN D. KIRMAYER

THERESA L. ROMANOSKY

Association of

American Railroads

425 Third St., NW

Suite 1000

Washington, DC 20024

202-639-2509

kkirmayer@aar.org

FRED R. WAGNER

Counsel of Record

JAY C. JOHNSON

VENABLE LLP

600 Massachusetts Ave., NW

Washington, DC 20001

202-344-4000

frwagner@venable.com

Counsel for Amicus Curiae

April 18, 2022

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 2

ARGUMENT ............................................................... 2

I.

The Court should clarify that railroad ditches

are not waters of the United States. .................. 3

A. Railroads depend on engineered ditches to

keep their track stable and operational. ......... 3

B. Regulatory uncertainty over railroad ditches

risks rail safety and operations. ...................... 5

II.

Because ditches are point sources, they cannot

be waters of the United States. .......................... 7

A. The Clean Water Act distinguishes point

sources from navigable waters. ....................... 8

B. Ditches are not tributaries. ........................... 10

C. If ditches are not navigable waters, they

cannot extend federal jurisdiction. ................ 11

III. Ditches are regulated in other ways. ............... 13

CONCLUSION.......................................................... 14

APPENDIX: American Railway Engineering and

Maintenance-of-Way Association, Manual for

Railway Engineering (2019) (excerpts) .................... 1a

ii

TABLE OF AUTHORITIES

Page(s)

Cases

County of Maui v. Hawaii Wildlife Fund,

-- U.S. --, 140 S.Ct. 1462 (2020) ..............................8

Kisor v. Wilkie,

-- U.S. --, 139 S.Ct. 2400 (2019) ............................11

National Association of Manufacturers v.

Department of Defense,

-- U.S. --, 138 S.Ct. 617 (2018) ............................8, 9

Rapanos v. United States,

547 U.S. 715 (2006) ......................... 5, 6, 8, 9, 11, 12

Sackett v. U.S. Environmental Protection

Agency,

8 F.4th 1075 (9th Cir. 2021) ..........................2, 7, 12

Wooden v. United States,

-- U.S. --, 142 S.Ct. 1063 (2022) ............................10

Statutes

33 U.S.C. § 1311(a) .......................................................8

33 U.S.C. § 1312(a) .....................................................13

33 U.S.C. § 1316 ..........................................................13

33 U.S.C. § 1342 ..........................................................13

33 U.S.C. § 1362(7) .......................................................8

iii

33 U.S.C. § 1362(11) ...............................................9, 10

33 U.S.C. § 1362(12)(A) ..........................................8, 10

33 U.S.C. § 1362(14) ...............................................8, 10

Regulations

33 C.F.R. § 328.3(a)(5) ................................................12

40 C.F.R. § 122.26 .......................................................13

49 C.F.R. § 213.33 .........................................................4

49 C.F.R. § 213.233 .......................................................4

49 C.F.R. § 213.319 ...................................................4, 6

40 Fed. Reg. 31320 (July 25, 1975) ........................5, 10

51 Fed. Reg. 41206 (Nov. 13, 1986) ..............................5

53 Fed. Reg. 20764 (June 6, 1988) ...............................5

65 Fed. Reg. 12818 (Mar. 9, 2000)..........................5, 10

80 Fed. Reg. 37054 (June 29, 2015) .........................6, 9

85 Fed. Reg. 22250 (April 21, 2020) .............................6

86 Fed. Reg. 69372 (Dec. 7, 2021) ......................6, 7, 10

Other Materials

American Heritage Dictionary

(1st ed. 1969)..........................................................11

iv

American Railway Engineering and

Maintenance-of-Way Association,

Manual for Railway Engineering (2019) ............3, 4

Federal Highway Administration,

Maintenance of Drainage Features for

Safety (July 2009) ....................................................4

Federal Railroad Administration,

Track Safety Standards Compliance

Manual .....................................................................4

U.S. Environmental Protection Agency &

U.S. Army Corps of Engineers,

Clean Water Act Jurisdiction Following

the U.S. Supreme Court’s Decision in

Rapanos v. United States & Carabell v.

United States (Dec. 2, 2008) ................................6, 9

Webster’s New International Dictionary

(3d ed. 1961)...........................................................11

INTEREST OF AMICUS CURIAE 1

The Association of American Railroads is an incorporated, nonprofit industry association whose membership includes freight railroads that operate 83 percent

of the line haul mileage, employ 95 percent of the workers, and account for 97 percent of the freight revenues

of all railroads in the United States. AAR also represents passenger railroads that operate intercity passenger trains and provide commuter rail service.

Combined, the nation’s railroads operate nearly

140,000 miles of right-of-way. The tracks on most of

that mileage are drained by engineered ditches that

are essential to rail safety and reliability. This case

could affect whether some or all of those ditches are

jurisdictional “waters of the United States” under the

Clean Water Act.

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus represent that they authored this brief in its entirety and that none

of the parties or their counsel, nor any other person or entity other

than amicus, its members, or its counsel, made a monetary contribution intended to fund the preparation or submission of this

brief. Pursuant to Rule 37.3(a), counsel for Respondents have

given blanket consent to the filing of amicus briefs, while counsel

for Petitioners consented via email.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Ditches are as much a part of the nation’s rail system

as tracks and trains. These ditches are designed, built,

and maintained using rigorous engineering standards,

solely to drain water away from rail infrastructure.

Without that drainage, the tracks could lose integrity,

causing service interruptions and safety risks.

Though railroad ditches are vital to rail operations,

agency interpretations of the Clean Water Act have left

them in a constant state of regulatory flux. As the relevant rules—and the people interpreting them—have

changed, the number of railroad ditches that qualify as

“waters of the United States” has changed too. But the

text of the Clean Water Act has not changed. It says

that ditches are point sources and that point sources

are not navigable waters. As the Court considers the

proper test for identifying waters of the United States,

that distinction should anchor its interpretation.

ARGUMENT

In deciding whether the wetlands here were waters

of the United States, the Court of Appeals ruled that

“the Sackett’s wetlands were adjacent to a jurisdictional tributary.” Sackett v. U.S. Envtl. Prot. Agency, 8

F.4th 1075, 1092 (9th Cir. 2021). That “jurisdictional

tributary” was in fact a manmade, roadside ditch.

Op.Br. 19-20, 50-51; Pet.App.C-3. Similar ditches run

along both sides of the tracks within the nation’s

140,000-mile rail network. By clarifying once and for

all that those ditches are not waters of the United

States, the Court can end decades of costly regulatory

uncertainty.

3

I. The Court should clarify that railroad ditches

are not waters of the United States.

Railroad ditches have one purpose: to capture and remove water from the tracks. In doing so, ditches allow

trains to operate safely even when water is present.

Rail safety thus demands that the hundreds of thousands of miles of railroad ditches be regularly maintained to ensure proper drainage. To fulfill that obligation and keep their tracks safe, railroads need to know

that those ditches are not jurisdictional.

A. Railroads depend on engineered ditches to

keep their track stable and operational.

Railroads are the most fuel-efficient way to move

freight long distances over land. That efficiency is a

function of engineering: steel wheels on steel rails create less resistance than rubber tires on pavement.

Those rails and their supporting crossties rest on a bed

of ballast and sub-ballast that helps distribute the

weight of the trains to an embankment, as illustrated

below.

App.3a, American Railway Engineering and Maintenance-of-Way Association, Manual for Railway Engineering at 1-1-14, Fig. 1-1-1a (2019).

4

With this foundation, railbeds can support axle loads

far heavier than highways. But the railbed must be

stable for the railroad to operate safely and efficiently.

Instability disrupts service and may even lead to derailments.

“[T]he principal influence on soil stability in roadbed, subgrade, and slopes” is water. App.11a, American Railway Engineering and Maintenance-of-Way Association, Manual for Railway Engineering at 1-1-34.

That being so, “control of surface and subsurface water

is the most important factor in roadway design and

maintenance.” Id. Control is achieved mainly by installing ditches next to the railbed. Id. These ditches

must handle both runoff and subgrade drainage. Id.

The vital function of railroad ditches is well known

to the Federal Railroad Administration. According to

FRA’s track safety manual, “[o]ne of the most essential

elements of track maintenance is a comprehensive

drainage system.” FRA, Track Safety Standards Compliance Manual at 5.22, § 213.33. 2 FRA rules thus require that railroad ditches “be maintained and kept

free of obstruction to accommodate expected water flow

. . . .” 49 C.F.R. § 213.33; see id. § 213.319. To ensure

safety, FRA also mandates track inspections and tells

inspectors to note right-of-way ditches. See id. § 213.

233; FRA, Track Safety Standards Compliance Manual

at 5.22.

Streets and highways are often built on similar principles, with roadside ditches used for drainage. See

Federal Highway Administration, Maintenance of

Drainage Features for Safety 1 (July 2009) (“Drainage

systems that remove storm water run-off from streets

Available at https://railroads.dot.gov/sites/fra.dot.gov/files/

2020-08/2008_Track_Safety_Standards%20%281%29.pdf.

2

5

and highways are an integral feature of a safe system.”) 3 So the jurisdictional issues addressed in this

brief are not unique to railroads or the Sacketts. How

agencies interpret their jurisdiction under the Clean

Water Act affects anyone who needs to maintain, modify, or fill a ditch.

B. Regulatory uncertainty over railroad

ditches risks rail safety and operations.

For years, the regulation of railroad ditches has been

anything but predictable. The earliest Corps of Engineers rules defining “waters of the United States” under the Clean Water Act expressly “excluded” drainage

and irrigation ditches. 40 Fed. Reg. 31320, 31321 (July

25, 1975). But in 1986, the Corps announced that while

it “generally [did] not consider” non-tidal drainage

ditches to be jurisdictional waters, it would start deciding ditch jurisdiction case-by-case. 51 Fed. Reg. 41206,

41217 (Nov. 13, 1986). EPA soon took the same posture. See 53 Fed. Reg. 20764, 20765 (June 6, 1988).

These changes began a long period of vacillation that

affected all regulated parties, including railroads. A

rule promulgated in 2000 defined most “non-tidal

drainage ditches” as waters of the United States. 65

Fed. Reg. 12818, 12823 (Mar. 9, 2000). Then, after this

Court’s decision in Rapanos v. United States, 547 U.S.

715 (2006), case-by-case judgments returned via the

“significant nexus” test. See U.S. Envtl. Prot. Agency

& U.S. Army Corps of Eng’rs, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in

Rapanos v. United States & Carabell v. United States

Available at https://safety.fhwa.dot.gov/local_rural/training/fhwasa09024/fhwasa09024.pdf.

3

6

(Dec. 2, 2008) (Rapanos Guidance). 4 This post-Rapanos

guidance begat a new rule, which said that ditches

would “in many instances” qualify as jurisdictional waters. 80 Fed. Reg. 37054, 37078 (June 29, 2015). Five

years later, a now-vacated rule narrowed but retained

jurisdiction over ditches. See 85 Fed. Reg. 22250, 22297

(April 21, 2020). And the latest proposed rule reverts

to 1986 standards by broadly asserting jurisdiction

over ditches. See 86 Fed. Reg. 69372, 69422 (Dec. 7,

2021).

Not knowing from one administration (or one project)

to the next whether railroad ditches qualify as waters

of the United States is a serious problem. Railroads operate tracks with ditches on both sides over nearly

140,000 miles of right-of-way. Those ditches must be

maintained. Indeed, FRA rules require them to be unobstructed and able to handle expected water flow. See

49 C.F.R. § 213.319. Complying with that rule can

mean modifying, deepening, or relocating a ditch. But

if railroad ditches are jurisdictional, another set of

rules applies: the rules that govern activity under section 404 of the Clean Water Act. The burdens of Clean

Water Act permitting would conflict with railroads’ obligations under FRA safety rules.

Even apart from that conflict, classifying ditches as

jurisdictional waters could delay projects that advance

rail operations and safety. Privately owned U.S.

freight railroads evaluate all projects with an eye on

permitting costs and risk. Costs rise when ditch work

requires a Clean Water Act permit, and risks multiply

when agencies change their position or use ambiguous

rules. These growing costs and risks can force changes

Available at https://www.epa.gov/sites/default/files/201602/documents/cwa_jurisdiction_following_rapanos120208.pdf.

4

7

to project designs, plans, and budgets. Large amounts

of capital may have to be reallocated; years of planning

can be lost. And if one project requires more resources,

it has a cascading effect on others. In short, regulatory

costs and uncertainty make long-term investment

harder, potentially delaying supply chain improvements that benefit everyone.

The jurisdictional status of railroad ditches is far

from the only regulatory uncertainty created by the

Clean Water Act rules. Current law treats ephemeral

streams as jurisdictional, requiring permitting and

mitigation in places where water rarely flows. And the

opacity of the “significant nexus” test for identifying jurisdictional wetlands forces railroads to spend time

and money figuring out which projects require which

federal permits. As even the agencies admit, “significant nexus is not a purely scientific determination.” 86

Fed. Reg. at 69390. On all these issues, AAR endorses

the Sackett’s arguments. But ditches present a special

problem for railroads—a problem that the text of the

Clean Water Act helps solve.

II. Because ditches are point sources, they cannot be waters of the United States.

The wetlands that EPA identified on the Sacketts’

property were separated from traditionally navigable

waters by a road and a manmade roadside ditch. See

Sackett, 8 F.4th at 1081. Similar manmade ditches

parallel railroad tracks throughout the country. Under

the Clean Water Act, those ditches cannot be waters of

the United States. Nor can they expand federal jurisdiction by linking otherwise isolated wetlands to traditionally navigable waters.

8

A. The Clean Water Act distinguishes point

sources from navigable waters.

The Clean Water Act “use[s] specific definitional language” to achieve its goals. County of Maui v. Hawaii

Wildlife Fund, -- U.S. --, 140 S.Ct. 1462, 1469 (2020).

Its definition of “point source” includes ditches:

The term “point source” means any discernable, confined and discrete conveyance, including . . . any pipe, ditch, channel, tunnel,

conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from

which pollutants are or may be discharged.

33 U.S.C. § 1362(14) (emphasis added). Point sources

are important because the Act regulates “any addition

of any pollutant to navigable waters from any point

source.” 33 U.S.C. § 1362(12)(A) (defining “discharge of

pollutants”); see § 1311(a) (making such discharges

“unlawful”); Nat’l Ass’n of Mfrs. v. Dep’t of Def., -- U.S.

--, 138 S.Ct. 617, 624 (2018).

The concept is simple: Point sources are “conveyances” that have the potential to discharge pollution.

Navigable waters—which the Act defines as “the waters of the United States, including the territorial

seas”—are vulnerable to that pollution. 33 U.S.C.

§ 1362(7). So the Clean Water Act generally prohibits

discharges from point sources to navigable waters. See

33 U.S.C. § 1311(a); Nat’l Ass’n of Mfrs., 138 S.Ct. at

624.

The plurality in Rapanos saw that this regulatory

scheme “conceive[s] of ‘point sources’ and ‘navigable

waters’ as separate and distinct categories.” 547 U.S.

at 735. It reasoned that regulating point source discharges to navigable waters “would make little sense if

9

the two categories were significantly overlapping.” Id.

And the plurality was right. The definition of discharge

crumbles if a point source can also be a navigable water. Because the Act does not prohibit adding pollutants from one navigable water to another, blurring

the distinction between point sources and navigable

waters opens a loophole in the Act’s main rule.

The Act’s main permitting program—the National

Pollutant Discharge Elimination System—makes the

same distinction. Under that program, regulators can

issue point source discharge permits that protect water

quality. Nat’l Ass’n of Mfrs., 138 S.Ct. at 625. Those

permits must contain “effluent limitations” that restrict the “quantities, rates, and concentrations” of pollutants “discharged from point sources into navigable

waters.” 33 U.S.C. § 1362(11) (emphasis added); see

Nat’l Ass’n of Mfrs., 138 S.Ct. at 625. If point sources

and navigable waters were overlapping categories, the

NPDES permitting requirements for ditches (and potentially other point sources as well) would become indecipherable.

Despite this potential for confusion, the Corps and

EPA have continued to define ditches as navigable waters after Rapanos. Their initial effort took the form of

a guidance document that asserted jurisdiction over all

“tributaries” (including manmade ditches) having a

“significant nexus” with traditional navigable waters.

See Rapanos Guidance at 1. Ditches “excavated wholly

in and draining only uplands” were “generally” excluded. Id. The agencies formalized this guidance in

their 2015 rule, the preamble to which noted that

“[d]itches are one important example of constructed

features that in many instances can meet the definition of tributary.” 80 Fed. Reg. at 37078. Their most

recent proposed rule reiterates the agencies’ belief that

10

“a ditch can be both a point source and a water of the

United States . . . .” 86 Fed. Reg. at 69434.

These agency interpretations should not subvert the

Clean Water Act’s plain language. A ditch is a point

source. 33 U.S.C. § 1362(14). Point sources are not navigable waters. Id. §§ 1362(11), (12)(A). In claiming otherwise, the agencies are muddying the Clean Water

Act’s most basic rule: Discharges from point sources to

navigable waters are prohibited.

B. Ditches are not tributaries.

What about the agencies’ claim that ditches should

be treated like navigable waters when they act as “tributaries”? Setting aside its conflict with the Clean Water Act’s text, this claim ignores the ordinary meaning

of the words “ditch” and “tributary.” That ordinary

meaning should control. See, e.g., Wooden v. United

States, -- U.S. --, 142 S.Ct. 1063, 1069 (2022).

The word “tributary” does not appear in the relevant

parts of the Act. The Corps seems instead to have introduced jurisdiction over tributaries in its 1975 rules.

40 Fed. Reg. at 31324. But those rules expressly disclaimed jurisdiction over “[d]rainage and irrigation

ditches.” Id. at 31321. It took another 25 years before

ditches and tributaries were conflated. See 65 Fed.

Reg. 12818, 12823-24 (March 9, 2000) (“Drainage

ditches constructed in uplands that connect two waters

of the United States may be considered waters of the

United States if those ditches constitute a surface water connection . . . .”). Now, after 25 more years, the

agencies appear wedded to the idea of “assess[ing] a

ditch’s jurisdictional status based on whether it could

be considered a tributary.” 86 Fed. Reg. at 69433.

The agencies’ approach creates problems because

ditches and tributaries are two different things. Since

11

the Clean Water Act does not define the word “ditch,”

its ordinary, dictionary meaning governs: “[A] long

narrow trench or furrow dug in the ground, as for irrigation, drainage, or a boundary line.” Am. Heritage

Dictionary of the English Language 384 (1st ed. 1969);

see also Webster’s New Int’l Dictionary 661 (3d ed.

1961) (defining ditch as “a trench for conveying water

for drainage or irrigation”). A tributary, by contrast, is

a natural feature—“[a] stream or river flowing into a

larger stream or river.” Am. Heritage Dictionary 1370;

see also Webster’s New Int’l Dictionary 2441 (defining

tributary as “a stream feeding a larger stream or

lake”).

Agencies cannot change a statute’s meaning years

later by adopting rules that introduce new terms and

use them in unnatural ways. See Kisor v. Wilkie, -- U.S.

--, 139 S.Ct. 2400, 2416 (2019) (“[T]he agency’s reading

must fall within the bounds of reasonable interpretation.”) (internal citation and quotation marks omitted).

The Clean Water Act says that ditches are point

sources. That the agencies today call them tributaries

instead cannot transform them into navigable waters. 5

C. If ditches are not navigable waters, they

cannot extend federal jurisdiction.

Treating ditches like tributaries, as EPA and the

Ninth Circuit did here, is the first domino in a jurisdiction-expanding chain reaction. EPA’s exercise of jurisdiction over the Sacketts’ wetlands rested on its

5 Similar definitional distinctions separate ditches from canals.

See Am. Heritage Dictionary 194 (defining canal as “[a] manmade waterway or artificially improved river used for irrigation,

shipping, or travel”). Even the permanent presence of water

would not change a ditch into a canal. See Rapanos, 547 U.S. at

736 n.7. Ditches are for drainage, not travel.

12

finding that those wetlands were “adjacent to a jurisdictional tributary.” Sackett, 8 F.4th at 1092. That tributary—really a roadside ditch, see Op.Br. 19-20;

Pet.App.C-3—was declared jurisdictional because it

was connected to Kalispell Creek, which in turn

“flow[ed] into Priest Lake, a traditional navigable water.” Sackett, 8 F.4th at 1092 (citing 33 C.F.R.

§ 328.3(a)(5) for the proposition that “tributaries to jurisdictional waters are themselves jurisdictional”). The

same conclusion, the Court held, was supported by the

agencies’ post-Rapanos guidance, which asserted jurisdiction over “all wetlands adjacent to the same tributary.” Id. at 1092-93 (quoting Rapanos Guidance).

Since the roadside ditch “tributary” here was adjacent

to the Sacketts’ wetlands and the Kalispell Bay Fen,

the guidance counseled federal jurisdiction over both.

See id. at 1093.

So, according to the Ninth Circuit, any ditch that

qualifies as a jurisdictional tributary can expand federal jurisdiction in at least two ways: (1) by linking a

traditionally navigable water to otherwise unconnected upstream wetlands, or (2) by linking all wetlands to which the ditch is adjacent. Applying these

principles to the hundreds of thousands of miles of railroad ditches in the United States would dramatically

expand federal jurisdiction. A single railroad ditch

linked to a traditionally navigable water could—absurdly—create jurisdiction over a wetland hundreds of

miles away.

If the agencies instead applied the Act’s distinction

between point sources (including ditches) and navigable waters, several problems would be solved. To start,

railroads would not have to wonder whether their

ditches would be subject to slow, expensive Clean Water Act permitting. This confidence would reduce

13

delays, facilitate growth, and, given the role of railroad

ditches, promote safety. Beyond that, ditches would

stop being part of larger fights over wetland jurisdiction like the one in this case. Indeed, whenever jurisdiction hinges on treating ditches like tributaries,

those fights would shrink or vanish.

III. Ditches are regulated in other ways.

Treating ditches like tributaries is not the only way

to regulate them. Nor is doing so essential to protecting

navigable waters and water quality. Both goals can be

accomplished while applying the Clean Water Act’s

plain meaning.

Many ditches, including railroad ditches, are for

managing stormwater. Certain industrial stormwater

discharges from point sources to navigable waters are

subject to EPA’s NPDES stormwater program. See 40

C.F.R. § 122.26; see also U.S. EPA, National Pollutant

Discharge Elimination System Multi-Sector General

Permit for Stormwater Discharges Associated with Industrial Activity (2021). Those rules do not require—

indeed, they are undermined by—a reading of the

Clean Water Act that counts ditches as navigable waters.

When ditches convey non-stormwater pollutant discharges to navigable waters, the discharger may have

to acquire an NPDES permit from the EPA or its state

designee. See 33 U.S.C. § 1342. Such permits must

meet various standards designed to protect against

pollution. See, e.g., id. § 1312(a) (requiring effluent limitations for specific point sources); id. § 1316 (addressing standards of performance). Here too, treating

ditches as navigable waters is counterproductive.

Complying with rules is the foundation of railroads’

safety culture. As they move essential commodities

14

around the continent every day, railroads must comply

with all manner of rules. But an agency-made rule that

may or may not assert jurisdiction over railroad

ditches makes no sense, either as a practical matter or

on a plain reading of the Act’s definitions. Railroad

ditches are manmade safety features, not navigable

waters.

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

KATHRYN D. KIRMAYER

THERESA L. ROMANOSKY

Association of

American Railroads

425 Third St., NW

Suite 1000

Washington, DC 20024

202-639-2509

kkirmayer@aar.org

April 18, 2022

FRED R. WAGNER

Counsel of Record

JAY C. JOHNSON

VENABLE LLP

600 Massachusetts Ave., NW

Washington, DC 20001

202-344-4000

frwagner@venable.com

Appendix

1a

AREMA

American Railway Engineering and

Maintenance-of-Way Association

Manual for Railway Engineering

[Excerpts]

*Begin page 1-1-1*

Part 1

Roadbed

– 2019 –

FOREWORD

Since the development of soil and foundation engineering as an important branch of civil engineering, earth

and rock have come to be treated as construction materials. They have properties which can be evaluated

and are subject to strains and failures in the same way

as other building materials.

Earth and rock are different, however, from materials

such as steel and concrete in that each soil and rock

deposit is extremely variable and has its own characteristics which reflect its origin and future performance (if used). As a result, investigation and testing

are uniquely important if soils and rock are to be utilized economically and safely in engineering work.

Part 1 of the AREMA Manual is prepared with recognition of the importance of geotechnical knowledge in

the design, construction, and maintenance of track.

The subgrade is considered to be as important to track

performance as rail and ballast. Keeping this balanced

point of view in mind, an engineered approach is

2a

presented for many roadbed problems rather than reference to standard practice.

The choice of available investigation methods is given

with an evaluation of the judgment factors involved in

many of the questions relating to the design and construction of the new roadbed and the upgrading and

maintenance of existing roadbed. Considerations such

as drainage and slope stability, which affect the roadbed directly but are outside its physical limits, are included.

Due to the fact that there are a variety of foundation

conditions and associated problems that occur, a number of references are given. Details of methods are presented only when adequate information is hard to find

elsewhere. Specialized help is advisable when a detailed appraisal of the suitability and performance of

particular deposits is required.

*Begin page 1-1-14*

1.2.2 CUTS (EXCAVATIONS) (2013) R(2016)

1.2.2.1

General

a.

Definition: Cuts are made when excavations are

required to provide roadbed grades and to acquire materials for use when constructing fill sections. Materials encountered in cuts can consist of cohesive soils, cohesionless soils, rock or combinations thereof. The general components of a cut (and fill) section consist of the

back slope(s), benches (if required), foreslope(s),

ditches, and the top of subgrade (track roadbed) as presented in Figures 1-1-1a and 1-1-1b. The “cut” width is

3a

the total of the backslope(s), ditches, foreslope(s) top of

subgrade widths, and interceptor ditches for the section(s). The purpose of each of these segments are defined in Table 1-1-6.

Figure 1-1-1a. Cut and Fill Section Components without Service Road (NTS)

Figure 1-1-1b. Cut and Fill Section Components

with Service Road (NTS)

4a

*Begin page 1-1-15*

Table 1-1-6. Factors Affecting Width of Cut

SEGMENT

PURPOSE

A. Top of Subgrade

To provide a

base for subballast, ties,

rails and service roads.

To safely sup- Throughout cut Standard width.

port track and and fill sections.

road subgrade.

To place subgrade at safe

height above

maximum design drainage

levels.

To carry runoff In all cuts.

Width as refrom waterquired to acshed served

commodate hyand intercept

draulics. Profile

any groundwamay need to be

ter entering

different than

cut, while pretrack profile in

venting devellong level cuts.

opment of unRefer to Article

stable track

1.2.2.1.b.

subgrade conditions.

To provide a re- In all cuts.

Variable width

sultant excavadepending on

tion face loslope, height of

cated between

cut face, soil

outer ditch line

stability,

and natural

maintenance

ground line.

and erodibility.

B. Foreslope

C. Ditch

D. Backslope

WHERE PRO- WIDTH &

VIDED

PROFILE

Throughout cut Standard width.

and fill sections.

5a

E. Interceptor

Ditches

F. Cross Slope

To carry runoff Above cut slope. Width as refrom the waquired to actershed served

commodate hyand prevent

draulics.

surface runoff

from entering

the cut.

To provide posi- Atop finished Cross width as

tive surface

track subgrade required to get

drainage trans- and subballast. off grade.

verse to the

track alignment.

b.

Cut Section Design Requirements: The track

roadbed (top of subgrade) portion of a cut should remain stable during the excavation and track laying operations, and once the railroad line has been placed

into operation. Cut section design issues include

providing safe backslopes and foreslopes. Drainage

ditches need to be sized to accommodate surface runoff

and subsurface water which may seep from the backslope face. Ditches made within rock cuts may need to

be designed having additional width for catchment of

rock materials which may fall from the backslope face.

Primary consideration when designing this catchment

width is to position the toe of slope at a point that will

minimize falling rock fragments bouncing onto the

track. The working width required by ditch cleaning

machines is important. The materials that will be encountered in the cut must be evaluated for excavatability. Cuts may need to be designed with flat slopes to

facilitate self-cleaning by prevailing winds and minimize snow storage. Benching of the backslope may be

required to accommodate drainage and to catch falling

rocks.

6a

1.2.2.2

Backslopes in Cuts

Slope stability analysis should be performed to aid in

selecting the appropriate safe backslope section. Crosssections should then be drawn transverse to the proposed track alignment to determine if safe cuts can be

made within the right-of-way lines or if additional

right-of-way or soil slope reinforcement will be required for the project. Soils and rock materials having

varying strengths may necessitate that the backslope

be cut at varying slopes. Subsurface water that seeps

from the face of the backslopes can facilitate slope instability. Vertical interceptor drains and horizontal

drains may need to be designed to intercept subsurface

groundwater flow and reduce hydrostatic pressures

which could cause instability.

*Begin page 1-1-16*

1.2.2.3

Drainage Ditches in Cuts

Ditches designed for drainage and catchment (as

shown in Figure 1-1-2) should be designed to have the

capacity to handle regional surface water runoff, snow

storage and to control debris and talus buildup. The

capacity is influenced by the width, depth and gradient

of the ditch. Reference should be made to Article 1.2.4

which provides specific ditch design guidelines.

1.2.2.4

Track Bed Performance in Cuts

Track performance is enhanced by providing uniform

stable subgrade conditions through-out a given cut.

Providing drainage of the immediate subgrade

7a

materials generally improves subgrade stability by increasing the materials strength while reducing the detrimental effects of frost action. Longitudinal and transverse drains can be designed to facilitate subgrade

drainage.

1.2.2.5

Cuts in Soil

1.2.2.5.1

General

a.

Considerations such as the proposed slope angle, drainage conditions, and moisture conditions and

strength of the soils encountered in a cut are the most

significant factors that influence the stability of earth

slopes. All sloping soils have a tendency to move under

the influence of gravity. Slope stability evaluations

should generally be made to select the cross-section for

cuts over 15 feet deep. Observations of nearby cuts in

similar soils and natural slopes in the project locale

can aid in slope design and may necessitate slope stability evaluations be made in cuts much less than 15

feet deep.

b.

It is important that the cut cross-section be wide

enough to provide side ditches for interception of surface water. Where it is not practical to collect surface

drainage with adequate ditches, buried drainage pipes

can be provided. It is important to evaluate the need

for relief of subsurface water pressure in sloping

ground to avoid slope failures. The subsurface water

pressure may be reduced by installing interceptor

ditches or drains above the slope, or horizontal buried

drainage pipes at critical depths within the slope either longitudinal or transverse to the cut face. In rare

cases, vertical wells may be required.

8a

c.

For every soil type it is necessary to maintain a

safe and stable cut section. This could include incorporating berms, drainage, erosion protection, filter layers

and vegetation. Additionally, proper selection of the

finished cut slope angle should be used as a means of

achieving this end. Discussion is provided in Article

1.4.3 and Article 1.4.5. Cribs or retaining walls may be

used in troublesome sections where berms and other

less costly means of providing a stable cut slope are unable to be installed. Details for the design of crib and

retaining walls are given in Chapter 8, Concrete Structures and Foundations. While slope control structures

and techniques add to costs, they will pay dividends in

reduced requirements for slope restoration and ditch

cleaning.

1.2.2.5.2

Gravels)

Cuts in Cohesionless Soils (Sands and

a.

Sands and gravels that are located above the

groundwater level generally will stand safely at a slope

2(H):1(V) or flatter. Steeper slopes may be able to be

excavated and stand for short periods of time, but will

eventually try to assume a flatter slope. Finished

slopes in sand-gravel materials that are exposed to

groundwater flow from the backslope face will routinely have to be cut flatter than would be required for

the same cohesionless soil cut in a non-saturated state.

In areas of loose saturated cohesionless soils, special

provisions may be required to avoid liquefaction.

b.

The stability of slopes in sand is generally improved as the density of the cohesionless soil increases.

9a

1.2.2.5.3

Cuts in Cohesive Soils (Silts and Clays)

a.

Cuts in cohesive soils need to be designed with

caution. Previously stable slopes have been known to

fail. Cuts in cohesive soils should be designed using

slope stability analysis. Local long-term experience

may prove to be an indicator of a stable slope for a particular soil profile. A slope of 2(H):1(V) or flatter generally proves stable in cohesive soils. Generally, clay

slopes over 10 feet in height should be designed on the

basis of laboratory tests and

*Begin page 1-1-17*

slope stability analysis. Typically, the higher the cut

section becomes, the flatter the slope will have to be to

remain stable. Highly plastic soils require flatter

slopes than those discussed above.

b.

The stability of clay slopes can be increased by

the installation of drains and by flattening the cut

slope. Other means such as soil nailing and ground anchors may deem useful in particular situations.

c.

Cut slopes in areas where it is known that slides

are inevitable may be designed to allow for slope movement (failure) without interference to traffic.

1.2.2.5.4

Cuts in Non-Uniform Soils

Cuts in soils which are layered or contain seams of varied soil types should be designed on the basis of a slope

stability analysis. The seams that contain cohesionless

(granular) soils are often water bearing during some

part of the year and drainage of these seams should be

10a

provided. Effective drainage may stabilize an otherwise unstable slope if the soil properties of the unsaturated (drained) backslope soils are adequate.

1.2.2.5.5

Cuts in Loess

In site specific cases cuts in loess can be designed with

near-vertical or flatter slopes based upon the engineering properties of the soils and the findings of slope stability analysis. Cuts in loess that are designed to have

a near-vertical face should be carefully drained at the

foot and top of the face. Loess soils possess a natural

cementation that is soluble, a uniform grading, and a

vertical root hole structure. Deep cuts can be made

with near vertical faces and berms, but it is critical to

the stability of the backslope that drainage be carefully

designed and maintained so that water does not accumulate atop the benches.

1.2.2.6

Cuts in Rock

1.2.2.6.1

General

The design of a rock cut is predicated on obtaining the

lowest balanced construction and maintenance cost

consistent with safety. The ratio between construction

and maintenance costs will vary with individual situations and should be developed for each project.

1.2.2.6.2

Assembly of Design Information

a.

Factors which should be evaluated when designing rock cuts are the 3-dimensional competence of the

rock and overburden, the depth and length of the cut,

and the potential for rock fall.

11a

b.

The first steps in design include preparing profiles and cross sections that incorporate data obtained

by reviewing existing topographic maps and geologic

maps; data obtained from field reconnaissance, test

boring, groundwater surveys; and laboratory test data

which is discussed in great detail in Section 1.1.

c.

In layered formations, where dip or strike of the

bedding planes is not normal to the center of the cut, it

may be desirable to evaluate sections on the dip of the

bedding planes to aid in examining the stability of the

cut slope.

*Begin page 1-1-34*

1.2.4 DRAINAGE (2013) R(2016)

1.2.4.1

General

a.

This section deals with the surface and subsurface drainage of the roadway as distinguished from

drainage of the ground surface by natural waterways.

The latter subject is dealt with in Part 3 Natural Waterways, and Part 4 Culverts.

b.

Since water is the principal influence on soil stability in roadbed, subgrade and slopes, control of surface and subsurface water is the most important factor

in roadway design and maintenance.

1.2.4.2

Surface Drainage

a.

Surface water from the roadway area, and sometimes surrounding topography, is usually handled by a

12a

system of ditches (commonly referred to as track or

railroad ditches) parallel to the roadbed with offtake

ditches where necessary. The roadbed cross section,

slopes of cuts and fills, ditches, catch basins, underdrains and culverts should all form a balanced system

to dispose of the water without accumulation or excessive saturation which would produce damaging effects.

Track ditch design should generally be limited to handling non-concentrated natural drainage.

b.

The design capacity of any part of the system

can be calculated if the quantity of water to be carried,

the distance and grade to outfall, and the infiltration

factor of the soil are known. Ditches should be deep

enough and sized for handling the design runoff anticipated while allowing the subgrade to drain. Track

ditches should be sized for the anticipated runoff and

the flow velocity calculated using the Manning equation.

c.

The ditch grade may be governed by the track

grade, particularly in long cuts or offtake drainage

points. However, more often than not, ditch grades will

be governed by existing drainage patterns and points

of discharge. When the ditch is constructed in earth

materials, the minimum recommended grade should

not be less than 0.25% to minimize sedimentation.

However, exceptions to this may be dictated by local

topography such as in low-lying or flat terrain. Likewise, to prevent erosion, the maximum unlined ditch

grade and/or ditch configuration should be such that it

will produce a velocity less than or equal to the limiting

velocity shown in Table 1-1-11. Erosion may also be

prevented or reduced by paving, riprapping, sodding,

or constructing check dams depending on velocity, type

13a

of soil, and depth of flow (Refer to Part 3 Natural Waterways). Liners for ditches are typically classified as

either rigid or flexible. Asphaltic concrete and Portland

cement concrete liners are examples of rigid liners.

Riprap, sod, and grass liners are examples of flexible

linings. Rigid liners are better at limiting erosion and

they often result in higher water velocities since they

are smoother than flexible liners.

Table 1-1-11. Guidelines for Limiting Velocities to Prevent Erosion

Material

Sand

Loam

Grass

Clay

Clay and gravel

Good sod, coarse gravel, cobbles, soft

shale

Velocity

(Ft per Sec)

Up to 2

2-3

2-3

3-5

4-5

4-6

d.

Characteristics of flow and their effects on erosion need to be considered. Generally speaking, flow in

track ditches may be classified as steady uniform flow

provided the ditch section is relatively constant. Open

channel flow is uniform when the depth of flow is the

same at every section of the channel, i.e. the surface of

the water is parallel to the channel. Flow in trackside

ditches can be further classified as either subcritical or

supercritical. Flow down gentle slopes will most likely

14a

be subcritical. Flow down steep slopes would most

likely be supercritical. That is to say, when

*Begin page 1-1-35*

the depth of water is greater than the critical depth, it

is subcritical flow, and when the depth is less than critical, it is supercritical flow. Critical flow, or flow near

critical depth, tends to be unstable and exhibits turbulence and water surface undulations. Therefore, the

slope of the channel bed that would maintain critical

flow should be avoided. Critical flow is that state of

flow at which the specific energy is at a minimum for a

given discharge. A hydraulic jump occurs when a transition is made from subcritical to supercritical flow. Supercritical flow should be avoided in the trackside ditch

design because the higher velocity can cause scour/erosion at the downstream outlet. To limit the effects of

erosion at the outlet, a form of energy dissipation may

be applied in the channel. Types of energy dissipaters

include drop structures, roughness elements such as

blocks and sills, ditch checks, etc. These decrease the

chance of a hydraulic jump occurring while also decreasing the chance of erosion/scour.

e.

Ditches are commonly trapezoidal or V-shaped

in section. In most cases, from a constructability standpoint, it is not economical to vary the size/shape of the

ditch. Although each ditch should be designed considering soil type, hydraulics and method of construction,

the minimum recommended depth is 2 feet below finished top of subgrade at the shoulder of the roadbed.

The minimum recommended depth is expected to provide freeboard and prevent saturation and infiltration

of storm water into the subballast and ballast section.

15a

Additionally, the minimum recommended bottom

width for trapezoidal ditches in earth materials is 3

feet realizing that wider ditches may be easier to construct if right of way is available. Track ditches should

be located so that the stability of adjacent cuts and fills

will be maintained. Generally the top surface of a

berm, if constructed or required between the toe of a

fill and the ditch, should be sloped toward the ditch for

good drainage.

f.

Modifications of the standard ditch design may

be required to address issues such as sloughing materials, sedimentation, erosion, etc. Such ditches also

provide working space for equipment and subsequently allow for periodic cleaning of debris and

sloughed material.

g.

Interceptor ditches at the top of cut slopes, and

benches on cut backslopes intended to intercept runoff

water from uphill sources are often useful in reducing

slope erosion, sloughing, and/or in preventing the deterioration of a rock slope due to ice formation within

rock fractures/cracks. Benches should be considered

for design and construction on cut backslopes when it

is necessary to intercept seeping groundwater from the

cut that is impacting the safety and stability of the

slope. Interceptor ditches and benches may reduce the

quantity of water to be handled by track ditches. Care

should be taken when designing, constructing and

maintaining interceptor ditches and sidehill benches

so that they do not create serious erosion problems.

Benches should be designed and constructed having a

positive downward gradient that allows gravity flow

laterally along and down the slope. Benches should be

lined if necessary to prevent infiltration that will

16a

impact the slopes stability and/or to prevent erosion on

the slope.

h.

In low-lying or flat terrain, it may be necessary

to dig offtake or adjacent ditches away from the roadway for a considerable distance to provide sufficient

difference in elevation to produce drainage. In such locations, sedimentation may occur requiring periodic

cleaning of ditches. An alternate would be to provide

catchment areas outside the embankment area for accumulation and evaporation of runoff if right of way is

available.

REFERENCES

(1)

H.W. King, E.F. Brater, J.W. Lindell and C.Y.

Wei, Handbook of Hydraulics, McGraw-Hill, New York

7th Edition, 1996.

(2)

Ven Te Chow, Ph.D., Open Channel Hydraulics,

McGraw-Hill Book Company, New York, 1959, Reissued 1988.

(3)

F.S. Merritt, M.K. Loftin and J.T. Ricketts,

Standard Handbook for Civil Engineers, McGraw-Hill,

New York, 4th Edition, 1996.